The Wurlitzer Co.

National Labor Relations Board - Board Decisions

Nov 17, 1970

186 N.L.R.B. 585 (N.L.R.B. 1970)

THE WURLITZER COMPANY 585
The Wurlitzer Company and District Lodge No. 92,
International Association of Machinists and Aeros-
pace Workers, AFL-CIO. Case 26-CA-3514
November 17, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On June 23, 1970, Trial Examiner Lloyd Buchanan
issued his Decision in the above-entitled case, finding
that the Respondent had not engaged in the unfair
labor practices alleged in the complaint, as set forth in
the complaint, and recommending that the complaint
be dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief, and the Respondent
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The
Board has considered the Trial Examiner's Decision,
the General Counsel's exceptions and supporting
brief, the Respondent's answering brief, and the entire
record in this case, and hereby adopts the findings'I
conclusions, and recommendations of the Trial
Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the complaint be, and it hereby is,
dismissed in its entirety.
I We find it unnecessary to decide whether Henderson was threatened
by Parvin during their early October 1969 conversation . We do not rely on
any inferences drawn by the Trial Examiner based on the fact that
Respondent did not discharge Parvin as a result of what she stated during
that conversation.
TRIAL EXAMINER'S DECISION
LLOYD BUCHANAN, Trial Examiner: The complaint
herein (issued December 11, 1969; charges filed November
3 and 24, and December 9, 1969), alleges that the Company
has violated Section 8(a)(1) and (3) of the National Labor
Relations Act, as amended, 73 Stat. 519, by discharging
Kathleen Parvin on October 27, 1969, because of her
concerted activities on behalf of the Union. Admitting the
discharge, the answer denies that it was because of Parvin's
concerted activities.
The case was tried before me at Corinth, Mississippi, on
February 10 through 12, 1970, inclusive. Briefs have been
filed by the General Counsel and the Company, the time to
do so having been extended.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT (WITH REASONS THEREFOR) AND
CONCLUSIONS OF LAW
1. THE COMPANY'S BUSINESS AND THE LABOR
ORGANIZATION INVOLVED
The facts concerning the Company's corporate status, the
nature and extent of its business , and its engagement in
commerce within the meaning of the Act are admitted; I
find and conclude accordingly. I also find and conclude
that, as admitted, the Union is a labor organization within
the meaning of the Act.
II. THE ALLEGED VIOLATION OF SECTION 8(a)(3)
AND (1)
To justify Parvin's discharge, the Company cites three
written warnings issued to her, two in March and one in
October, and its rule that three warnings issued for minor
offenses within a 12-month period can result in discharge.
This and other rules were posted after a Board-conducted
election on January 17, 1969, which the Union lost. Even if
the rules were posted in anticipation of further organiza-
tional efforts after the election, there is no claim that they
are violative or that they were posted discriminatorily.
The defense raises several questions. First, has it in fact
been the Company's practice to discharge an employee
after three warnings within a 1-year period? Second, were
the Company's reasons for issuing the three warnings to
Parvin supported by the facts? Third, were the warnings
issued to Parvin disparately and discriminatorily?
With respect to the first of these questions, we do not
know how many employees were discharged between
February 1, 1969, and January 30, 1970. It was stipulated
that during that 1-year period, nine written warnings were
issued to a total of six employees: One employee received
three warnings and was discharged; one received two; and
four each received one. It was later brought out that
another employee received a third warning slip in August or
September and was discharged because of poor quality and
production. We do not know when the first two slips were
issued to her. She had been a leadgirl for 5 years. The facts
thus testified to do not themselves indicate that issuance of
three warnings, as here, was so unusual as to be per se
suggestive of discrimination. It appears, as was testified for
the Company, that it never deviated from the rule for
discharge on the third warning.
Before we weigh the testimony concerning the reasons for
issuing the warnings to Parvin, we should note her
employment history and organizational activities. She had
been employed by the Company since 1963 except for two
periods when she was on leave. She worked first at the
186 NLRB No. 65
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
larger plant in Corinth , Mississippi , and then , particularly
since her last transfer in July 1968, at the Rienzi plant.
Parvin became active on behalf of the Union in
November 1968 and continued so through the January
1969 election . She was included with three Corinth plant
employees in a list of those designated by the Union to
attend the Board hearing prior to the election , and was one
of the Union 's election observers . There can be and is no
question of company knowledge of her union activities at
that time . Indeed , Long, foreman in charge of the Rienzi
plant, admitted that he knew that Parvin was engaged in
union activity from June 1968 until her discharge some 16
months later.
Union activity was resumed after a meeting with a union
representative on June 24 , which Parvin and three or four
other employees attended . After a 2-week vacation, such
activity continued from July through the date of Parvin's
discharge , October 27 . Parvin told us that during this later
period all employees received cards in the mail from the
Union but that she spoke to 30 or 35 , some of them at
Corinth , after work , on break , at lunch , and in the
washroom . Parvin 's later version was that she distributed
union cards during this period although other witnesses
called by the General Counsel testified, as she had earlier,
that cards were sent through the mail and that personal
distribution had not been observed.
Having earlier declared that it was very likely that plant
officials had seen her with a union representative while he
was handbilling the plant during this later period, Parvin
now testified that she was sure that they had seen her. But
again we were more reliably told that there was no
handbilling during this period except by mail from the
Union . The Rienzi plant is a small one with approximately
60 employees , and there is no question but that the
Company knew that Parvin supported the Union . But the
extent of her activity at this time is not at all clear; nor is
her testimony concerning it reliable.
Like Parvin , her half sister , Corbin , was also an observer
at the January election . Corbin was at least as active as
Parvin on behalf of the Union , and apparently at times
more so as she had earlier engaged in handbilling prior to
the election . There is no suggestion of animus based
thereon , or evidence of warnings to or discrimination
against her.
We come now to the second question raised by the
defense and the issuance of the three warnings to Parvin.
We were told she was spoken to several times about the
quality of her work , but not given a warning.
On March 19 Parvin was given a written warning for
failure to clean her work stations as she had been directed
to do. On March 21 she was given a second written
warning, this time for poor quality work as she had
improperly framed approximately 30 boards .. Parvin was
spoken to but not given a written warning about bad work
which she turned out about October 13. (In this connection,
we were told of one bad board returned from the Corinth
plant.) On another occasion , the date not fixed , she was
given a bad sample and did the work wrong. This was not
chargeable to her and she was not given a warning.
With respect to the first warning, Parvin had begun to
clean up the day before but, as directed , had gone home at
quitting time , the task to be finished the following morning.
However she had managed on the 18th, Parvin 's excuse for
failing to finish the job the following day was that she had
not been given a necessary container which her supervisor,
Moss , had promised her. She had been cleaning up without
a receptacle the day before , whatever the now asserted need
for one; she had been interrupted by the quitting time
buzzer . She made no protest when she was given the
warning slip , and did not indicate that she thought the
reason "frivolous" even if the General Counsel deems it
"highly suspicious ." It does not appear that this warning
was unwarranted . Much more was heard at the hearing in
connection with the second warning , that for poor work,
and the third warning, also for poor work, which was dated
October 24 and given to Parvin on October 27 when she
was discharged.
Parvin testified that, working on several manual jobs, she
had been put on a new one on March 20 and worked on it
about 4 hours. The next day Moss told her that she had
built "some boards" wrong ; they had already been shipped
to the Corinth plant. Parvin and Moss went to Corinth,
where Parvin reworked the boards . It developed that all 32
boards on which she had worked the day before were
wrong. Later on March 21 Moss gave Parvin the second
warning slip , the latter remonstrating that she had worked
on these boards only 4 or 5 hours and Moss replying that if
she "had been watching what [she] was doing [she]
wouldn 't have made the mistake."
If she sought to explain away her errors as she testified
concerning a conversation with Brawner , her leadgirl at
that time, Parvin was not convincing . Brawner did come
back and help her , and Parvin "was to follow the sample."
(Unlike a later instance, this sample was not questioned.)
The impression from Parvin's testimony is that this was one
of several models on which she had been working and was
not complicated: she corrected the boards by switching a
screw and a dart . Neither Moss nor Brawner was called to
testify.
Certainly Parvin indicated no outrage on receipt of this
second warning slip. She refused to sign it , as she had the
first and did again the third. Even were one to imagine that
this second warning was not altogether justified but was in
part prompted by Moss' annoyance because of Parvin's
failure to clean up 2 days before, such action would not be
discriminatory even if one preferred to assume or infer that
it was . It should be noted that on March 17, as Parvin told
us, she had trouble with a job and told Moss, who
instructed her to set the work aside and transferred her to
another job the next day. If this was brought out to show
markedly different treatment from that when she was given
a third warning in October, it also is clear that she was not
warned because of this instance in March just before the
first two warnings issued to her. We see here, as later, a
mistake on which no warning was issued , followed by
another and a warning.
Were the Company in March attempting to establish a
convenient basis for discharging Parvin on the next
occasion to warn her, it did at that early period and again
shortly before her discharge in October ignore opportuni-
ties for a third warning . I find that there was no such
unlawful attempt.
THE WURLITZER COMPANY 587
About noon on Tuesday, October 21, Parvin was
assigned to a different job, which had been performed by
eight employees at various times as they were transferred
from job to job. Stewart, her leadgirl, showed her how to do
it and helped her all afternoon. Stewart checked Parvin's
first few boards the following morning and then, as facility
and experience were presumably acquired, spot checked.
Parvin further testified that on both the 22d and 23d
Stewart told her that she was doing a good job. According
to Parvin, Stewart continued to check each board. On the
afternoon of the 24th Parvin was taken to the office, where
she was charged with doing poor work, and was given a
third warning slip.
Stewart told us that the first afternoon she checked each
board and complimented Parvin on her work; that for the
next 2 days she spot checked the work, evidently finding it
in order; but that on Friday morning she told Supervisor
Pounders, after first speaking to Parvin about it, that the
latter had worked many boards wrong.
Pounders told us of poor work which Parvin had done
about a week before. He had told her to improve but did
not give her a written warning.' He now called and
informed Long, who was at the moment in Corinth. It
developed that of 59 boards then checked at the Corinth
plant, Parvin had worked 20 incorrectly, and Long and
Pounders decided to give her another warning, realizing
that it would mean discharge. There was no dissimulation
with respect to their awareness of the seriousness of the
third slip. At Pounders' request , Long showed her the
boards. This stands uncontradicted except by denial in
General Counsel's brief.
On rebuttal Parvin testified for the first time that Stewart
complimented her on her work as late as Friday. Stewart's
comments were clearly important and significantly relevant
as Parvin testified on direct examination, when she told us
of compliments on the 22d and 23d. But quite as
significantly, Parvin did not include reference to any
favorable comment on the 24th until she recognized the
importance of denying what Stewart had testified concern-
ing the events of that day. The facts with respect to the
work improperly done belie Parvin's testimony that she was
complimented on the 24th. Not only did Stewart report the
poor work to Pounders that morning, but it is clear that the
work was poor when it was thereafter checked although
Parvin had been on that job for approximately 3 days. As
for Stewart and the others now checking every board
instead of spot checking as she had done earlier, it is
understandable that, poor work being found and before
action was taken, a more thorough inspection would be
made to determine whether the samples checked were
representative. (We have seen that the practice reasonably
varied with respect to checking work.) Corbin testified to
intensive and constant checking by Stewart on another job
and that, on one of her jobs in December, Stewart for 4
days checked every board. On the other hand, she also told
us that Stewart sometimes checks all of the work and
sometimes merely spot checks. This is quite consistent with
Stewart's testimony concerning the frequency with which
she checks the work.
In an attempt to explain her shortcomings, Parvin
testified that she was assigned to 14 different jobs between
March 14 and October 27. It is not claimed that these
frequent transfers were discriminatorily motivated. The
reason that no such claim has been made is quite clear:
Parvin herself told us that other employees are shifted
around to different jobs and various machines.2
Long testified, and Pounders in greater detail, that there
are some 770 different jobs in the plant; some employees
are transferred more than 10 times in a year, some more
than 20. How many different jobs per employee are
involved in these transfers we do not know. This would be
understandably difficult to determine, and no attempt was
made. All of the.operations must be performed each week
by the approximately 60 employees.
Further in connection with what was now admittedly
poor work to be excused as done allegedly on training time,
Parvin claimed that whenever she started on a new job, she
herself wrote "training" on her timecard. There is no
dispute concerning the meaning of training time, several
times described; to be resolved is the practice or statements
allegedly made concerning it. Training time or status is
indicated by the word training written on an employee's
timecard. It means that the employee is not required to
equal the production standard or quota while she is on such
status. Thus she is not charged with producing less than the
quota, but is guaranteed 112 percent of the production
standard or a 12-percent bonus. This applies on assignment
to a new job and also when the employee returns to a job
after she has been off it for a while. An employee is thus
protected whether or not she has been on the job before; it
also covers a wholly inexperienced employee.
According to Parvin, the 40-hour training allowance was
first mentioned to her about 1966. She cited one job on
which she claimed that she had in fact been allowed 40
hours of training time; indeed on two other jobs, that she
was given 40 consecutive hours.
Despite what she claimed was a longstanding rule and
practice, Parvin, from her testimony, appears to have been
singled out to be told at various times about the allowance.
Thus Long also allegedly told her about it early in
September when he put her on a machine. She later
modified her account of what Moss had said: He told her
that training periods would be "for 40 hours at least " unless
she attained proficiency earlier. This reference to at least 40
hours stands alone and suggests further that Parvin was
extending herself and the truth to support her claim. I do
not credit her.
Indeed, the "at least" element makes the 40-hour factor
meaningless: Training would be less than 40 hours if
proficiency were attained earlier; more than 40 hours if
proficiency were not by that time attained. There would be
no difference had Parvin now referred to 10, 20, or 80
hours. Training time is allowed. But there was no
I The Company's leniency did not vest in her any right to do poor work . doing at the time of the election, to other work . It does not appear that her
As we shall see, that this was a few days after Parvin 's union activity was job changes had theretofore been less frequent than those of other
forcefully brought to the Company's attention by report of a threat which employees. Nor is it suggested that the change on March 14 was
she had made. discriminatory or that Parvin objected , or that there was basis for
2 On March 14 Parvin was moved from testing, which she had been objection , to any of these changes.
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meaningless practice or promise involving a stated number
of hours.
With training time allowed on transfers, total training
time on a given job as an employee several times returned
to that job might well exceed 40 hours; and 40 hours of
nonconsecutive time would be a limitation, not a promise.
Else with frequent transfers, employees might be on
training time virtually all of the time; and there is no
suggestion of that although Parvin did at one point claim
that on one job she may have been allowed more than 40
hours. After examining Parvin's timecards, counsel agreed
that they do not show 40 consecutive hours of training time
on any single job or, as put to me, any "extensive period."
This does not prove that Parvin had not been promised
40 hours of training time generally on different jobs as she
claimed she had been promised. But to repeat, whether or
not there were such promises is not supported by the
timecards as all counsel agreed or by any other credible
testimony. We recall that Parvin made the notations
herself. As the General Counsel further agreed, Parvin's
timecards do not show even 20 consecutive hours of
training time on any job. This further reflects on Parvin's
credibility since she had earlier testified with positiveness
that she had marked "training" on her card for October 21
through 23; she was not certain about October 24. Much
more reasonable and credible and in accord with the oral
testimony received and the documents examined is the
testimony by Reiselt, the Company's personnel manager,
that allowance of training time is within the supervisor's
discretion. It may be noted also that Parvin did not claim
that Moss had promised her 40 hours of training time on
this, which turned out to be, her last job and which she had
herself characterized as "easy"; hers was a general and
wholly unsupported claim.
Certainly there was no disparateness in this discharge
after 3-1/2 days on the given job. The testimony by Corbin
that she at one time asked Long how many hours of
training there would be on a certain job and that he replied
that it would be 40, so far from supporting Parvin's claim to
a general allowance of 40 hours on transfer unsupported as
it is by any other testimony or documentation, reflects
rather on Parvin's credibility. Corbin had been employed
long enough for her to know had such a practice or
allowance been recognized; her question would have been
unnecessary. The actual practice was completely out of line
with what Parvin alone was allegedly told.
It appears from her cards and I find that Parvin was not
on training time for 3-1/2 days on her last job. Her transfers
were not disparate and were not alleged to be. She was
reasonably required to do good work on this last job, but
she did not meet that requirement.
I have not overlooked Pounders' affirmative reply when
he was asked on cross-examination, "Now, Mrs. Parvin was
on training during the entire period of time that she was
working on this 4030 board, wasn't she?" Not only was this
reply contrary to the timecard record which showed that
Parvin had not noted that she was on training time for any
such extended period, and to the reliable testimony which
indicates less than 20 hours at any time, but it is clear that
the Company could reasonably expect production of a
quality which it was not receiving from Parvin.
In the absence of other and more weighty evidence of
discrimination, one might be tempted to make much of this
statement by Pounders. But I would not hang the Company
for a word or a thoughtless reply which is contrary to the
great weight of the evidence received.3 Much was made at
the trial, as this decision reflects, of the issue of training
time , and in that posture the issue loomed important. The
careful and detailed consideration given to it here may be
unnecessary since the General Counsel barely mentions it
in his otherwise comprehensive brief. Such neglect may
stem from the unreasonable and demonstrably untruthful
aspect of Parvin's testimony in this connection.
On the question whether warning slips were issued to
Parvin disparately, Corbin told us of a mistake pointed out
to her on one board and one which another employee had
made on another job shortly after Parvin's discharge, and
of mistakes which she had made on a wholly new job one
day in September. Several other employees called by the
General Counsel testified similarly. Thus McCoy told us
that on some jobs she has had an occasional wrong board.
These were corrected, and she received no warning slips.
She had many errors on one job and her leadgirl, helping
her, pointed out that the job had been changed in one
respect; the new sample given McCoy was correct. She also
testified that another employee once told her that certain
boards which several girls corrected had been hers.
Employee McGaha testified that her first day on one job
she had reversed the parts on 40 to 50 boards. She was
shown again how to handle the job but was not given a
written warning. Employee Puckett testified similarly to
mistakes the first day she worked on a new board. She was
not given a warning slip for this but did once receive one for
excessive absences. Not only were these mistakes of shorter
duration, but there does not appear to have been a history
of criticism in connection with the respective employees
involved. In none of the other cases cited does it appear to
have been necessary for the employee and her supervisor to
go to the Corinth plant to rework the job.
Pounders explained various instances where mistakes
were made but no warning slips issued as being cases where
the wrong sample had been given to the employee or where
mistakes were made during the first day on a new job. We
cannot compare instances of occasional or first-time error
on a new job by several individuals with multiple poor work
on the third or fourth day on a given job. On the other
hand, we have seen that warning slips have been given to
other employees for poor work and that two others were
discharged, one in June and the other in August or
September.
We have noted that Parvin, like the others, made errors
which were called to her attention and corrected in March
and also shortly before her discharge with no warning slips
issued. I am not persuaded that such instances do not
permit issuance of warning slips on other occasions or that
the two issued to Parvin for poor work were not warranted.
Related to the issue of company knowledge, but perhaps
more significant in connection with Parvin's concerted
3 Unlike Struksnes Construction Co., Inc., 148 NLRB 1368 , 1371, 1374,
we have here no "inartful" act, but an evidently careless reply.
THE WURLITZER COMPANY 589
activity and therefore the Company's motive in issuing the
third warning slip, is an incident which occurred in
September according to employee Henderson, or on
October 6 or 7 according to Parvin. Henderson's version is
that sometime in September Parvin asked whether she was
going to help the Union, and when Henderson replied in
the negative, continued that if she did not help and the
Company fired her, the Union could not help get her job
back. According to Parvin, Henderson had told her at the
time of the January election that if things did not change at
work she was going to help Parvin organize for the next
election; that she now asked Henderson whether things had
changed and, the reply being in the negative, asked if she
was ready to sign a card and help her. Henderson again
replied in the negative, explaining that she was afraid to
sign a card, and, assured by Parvin that she would have
protection if she supported a union, asked about another
girl who had been discharged. Parvin claimed that she now
withheld the information that the other girl had filed
charges but did say to Henderson that if she did not sign a
union card and was fired, she would not have a leg to stand
on.
Henderson told this to Pounders, who informed Long,
who in turn took it up with Reiselt . The latter directed that
Parvin be told not to go around threatening employees and
on October 9, according to Parvin, Long spoke to her about
threatening employees if they did not sign a union card.
Parvin denied that she had made any threats.
It is not clear whether, in reporting this to Pounders,
Henderson referred to Parvin's statement as a threat. In two
affidavits to the Board she characterized it as such and she
testified that she took it as a threat. If Long, after speaking
with Henderson and Parvin, was impressed with the
former's reaction, issuance of a warning on that account
might be considered reasonable and warranted. But no
such warning was issued. No finding need be made as to
threat although there is sufficient basis for finding that
Parvin did threaten to the point where a somewhat
sympathetic employee was prompted to complain to
management . The Company is not to be charged with bad-
faith failure to investigate further or whatever the General
Counsel suggests in his detailed analysis of this incident. It
did not attempt to establish the violation of company rules,
nor did it take adverse action on what was at least arguably
a threat.
As noted, the question here is whether the third
reprimand was prompted by such activity by Parvin. The
very knowledge on October 9 of recent union activity by
Parvin on which the General Counsel relies could have
prompted a third warning slip had the Company sought to
interfere by warning or to discriminate by discharge.
Indeed the threat which the Company recognized or
claimed would under its rules have warranted discharge
without prior warning. Certainly if the Company did not
discharge when it might have for the threat which it has
consistently since early October maintained had been
made, but thought as we were told that speaking to Parvin
about it would suffice , such failure to discharge at the very
time that it was directly confronted with her union activity
suggests , so far from discriminatory animus or purpose, a
desire to retain her. (We have already noted some poor
work about October 13, for which Parvin was not warned.)
Having seen that this is a small plant, we cannot adopt
the General Counsel's assertion that "this alleged threat
... was Respondent's first indication of Parvin's renewed
union activities." Parvin's activities had been "renewed"
since June or July. Further, that "Long testified that he had
no knowledge of Parvin's renewed union activities until
Henderson told him about this incident" is a misstatement
of fact. Long's testimony was that he did not recall that
anyone ever told him "anything about Mrs. Parvin talking
to them about the union after the last election, up until the
Henderson incident in October." Quite to the contrary,
Long told us that he knew that Parvin was engaged in union
activity before the election and thereafter until her
discharge.
There is no evidence of any further union activity by
Parvin between October 6 and 24 which would have
affected the Company's attitude toward her and its motive
when it did take action. It may be redundant to add that, if
it be claimed that Parvin's discharge was prompted by the
Company's knowledge of her activity on behalf of the
Union on October 6, and that the oral warning given Parvin
in that connection was prompted by the Company's
displeasure over such activity, the fact is that any such
alleged displeasure or animus did not prompt discharge at
that time. If it be claimed otherwise that the threat and
reference to it were merely an excuse for later action by the
Company, the answer is that they were not: the third
warning stands on its own. Had the Company been
disposed to discharge Parvin because of her preelection or
summer activities or her talk with Henderson, it could
readily have done so early in October. This case is unusual
for the evidence of opportunities to discharge because of
the threat to Henderson and then the poor work prior to
that which prompted the discharge on October 27.
If it be urged, as may be even though the point was not
raised before me, that the Company was "waiting for a
better excuse," the short answer is that there is no proof of
this. If this be suspected, it may indeed be so; but
conversely, it may not be.
Not alleged as violative, but relevant for their bearing on
the issue of discrimination are two incidents which we now
consider. About 3 weeks after the January election Moss,
who issued the first two warning slips to Parvin, asked her
why she had turned against the Company and, why she
disliked him. Parvin replied that she did not dislike him,
and told him how she felt about the Union and why. Moss
told her that he agreed with her to one extent on the way
she felt.
About the middle of February, some 4 weeks after the
election, Division Manager Davis addressed the Rienzi
plant employees and told them that he was disappointed
because so many people had voted for the Union. He then
told them that the Company had posted new rules,, that the
employees were to abide by them, and that supervisors were
authorized to hand out pink warning slips.
I cannot join with the General Counsel in his deduction
that these incidents indicate retribution in the earlier
warnings or the discharge more than 8 months later.
Neither Moss in his remarks, nor Davis in his, indicated
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
resentment (the Union had lost the election) or ill will. If we
accept the dictionary definition of "a feeling of hostility or
hatred," it does not appear that the Company felt any
animus toward the Union or toward any employees who
supported it. It may be recognized that the Company did
not favor unionization of the plant. That the Company was
not, to the point of unlawful acts, concerned with union
activity may be judged by the absence of even a claim of
violation before the January election or during the later
organizational activity which commenced in June.4 There is
neither claim nor indication of ill will, hostility, or violation
at these plants at any time.
It is true, as noted in the Erie Resistor case, that to the
extent that antiunion intent and timing are shown, we need
not rely on the "inherently discriminatory" nature of the
conduct which is directly alleged to be violative. As the
Supreme Court stated in that case,5
When specific evidence of a subjective intent to
discriminate or to encourage or discourage union
membership is shown, and found, many otherwise
innocent or ambiguous actions which are normally
incident to the conduct of a business may, without
more, be converted into unfair labor practices.
Whatever support for a finding of discrimination might
be based on a finding of animus, Moss' remarks to Parvin
and Davis' expression of disappointment and the adoption
of new rules after the Union lost the election do not provide
such support. A preference indicated as mildly as here to
operate its business without the intervention of a labor
organization is not equivalent to that animus which itself
suggests and supports a finding of discrimination.
With respect to animus, we must distinguish between an
expressed preference that there be no union and actual
animosity. Thus a feeling or expressed preference may be
no more than this-is-what-I- think-but-do-what-you-want;
animosity may express itself in unlawful conduct, conceiva-
bly in harsh, lawful terms.
It would indeed be strange, certainly unreasonable, to tar
with the same brush an employer who tells his employees
only that he thinks a union is unnecessary but that the
decision is theirs to make freely, and one who threatens and
commits other serious interference with employees' rights
to engage in concerted activities. The variety and extent of
opposition to unionization are too great to permit fixed
inferences on mere showing of preference or of some
opposition as here. There is no support in logic or in fact for
use of the term animus to describe both extremes of
attitude, and then to superimpose on such noneclectic use
an inference that may sensibly be drawn as one approaches
one extreme but would defy reality in the case of the other.
To posit violation on Davis' mild and lawful attitude and
expression would be not only to base discrimination on
4 Cf. Winn Dixie Stores, Inc., 181 NLRB No. 88.
5 N.L.R.B. v. Erie Resistor Corporation, 373 U.S. 221, 227.
6 TXD-244-70.
7 N.L.R.B. v. Dan River Mills, Inc., 274 F.2d 381, 384 (C.A. 5). Cf.
conduct which is not charged and cannot be found to be
violative even as unlawful interference , but also to impute
to the Company a purpose which the evidence does not
support. An expression, even lawful, of opposition to a
union may indeed indicate animosity and discrimination.
But just as certainly no such animosity appears here and no
"subjective intent to discriminate." Any opposition or
animus here suggested was not, to borrow a term frequently
employed in this connection, "virulent."
If we remove the carapace which may embrace an ill-
defined animus , there is no basis here for an inference of
discriminatory motive. The Company's attitude, frankly
declared, was not followed by any coercive or interfering
tactics. At no prior time did it appear to have been
concerned with Parvin's union activities, and it was not on
October 24. Nor is there any evidence or claim that, aside
from the discharge here in issue, it in any way or at any time
interfered with, restrained, or coerced employees in the
exercise of their statutory rights to engage in concerted
activities.
While violations need not be as flagrant as those
indicated in the recent Pioneer Chrysler-Plymouth, Inc.,
case,6 the facts there stand in marked contrast to the
various aspects of those in the instant case.
Certainly we have here no evidence of such "antiunion
bias and demonstrated unlawful hostility [as would
constitute] proper and highly significant factors for Board
evaluation in determining motive." 7
On the facts before us, it would be wholly unwarranted to
find that the Company's preference that its employees not
select the Union as their representative prompted, trig-
gered, or even partially motivated Parvin's discharge; and
that she would not have been discharged but for her union
activities.
The evidence does not support the serious allegation of
malversation filed against the Company. There is no
sufficient basis for finding that the warnings in March or
the warnings or discharge in October were discriminatory.
I do not accept as determinative of the issues before us a
statement which we were told Parvin filed with the
Mississippi Employment Office and in which she declared
that she was fired because of "bad quality." It would
appear, this being not unusual, that she was there declaring
the reason given to her when she was discharged. This is no
more to be relied upon than is Parvin's self-serving
conclusion, stated at that time, that she was discharged
because of union activity.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in the case, I
recommend that the complaint be dismissed in its entirety.
N.L.R.B. v. Ambox, Incorporate4 357 F.2d 138 , 142 (C.A. 5); N.LR.B. v.
Harry F. Berggren & Sons, Inc., 406 F .2d 239, 246 (C.A. 8); Borek Motor
Sales, Inc. v. N.L.R.B., 425 F.2d 677 (C.A. 7).