Watkins Center

National Labor Relations Board - Board DecisionsDec 29, 1965

156 N.L.R.B. 442 (N.L.R.B. 1965)

442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above-named Union, as the exclusive representative of all employees in the bargaining unit described below with respect to wages, hours and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All our production and maintenance employees employed at our Ardmore, Oklahoma, plant excluding office clerical employees, truckdrivers, guards, watchmen, and supervisors as defined in the Act. CORRAL SPORTSWEAR COMPANY, Employer. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Sixth Floor, Meacham Building, 110 West Fifth Street, Fort Worth, Texas, Telephone No. Baltimore 1-7000, if they have any questions. concerning this notice or compliance with its provisions. Watkins Center and Retail Clerks Union Local 455, AFL-CIO, Retail Clerks International Association , AFL-CIO Watkins Center and Julia M. Godeke. Cases Nos. 23-CA-1839 and 23-CA-1848. December 29,1965 DECISION AND ORDER On July 8, 1965, Trial Examiner W. Gerard Ryan issued his Deci- sion in the above-entitled proceeding, finding that the Respondent had not engaged in unfair labor practices as alleged 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 Decision and a supporting 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 [Members Fanning, Brown, and Jenkins]. 156 NLRB No. 44. WATKINS CENTER 443 The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the brief, and the entire record in the case, and hereby adopts the findings,' conclusions, and recom- mendations of the Trial Examiner, with the following additions and modifications. The Trial Examiner found that Julia M. Godeke, Respondent's office manager, was a superivsor within the meaning of the Act and for that reason recommended dismissal of the complaint alleging that she was discriminatorily discharged. In so finding, the Trial Exam- iner concluded that Godeke responsibly directed other employees. We do not agree. The duties and responsibilities possessed by Godeke are fully set forth in the Trial Examiner's Decision and are not in dispute. While it is true that Godeke taught all or part of her duties to everyone who was assigned to assist her, we are convinced that such instruction or direction of other employees was of a routine and clerical nature not requiring the use of independent judgment. Accordingly, we find, contrary to the Trial Examiner, that Godeke is not a supervisor within the meaning of the Act. Although the Trial Examiner did not make findings of fact respect- ing the circumstances of Godeke's discharge, we are satisfied that such a determination can be made on the present record? While the timing of Godeke's discharge and her known activity on behalf of the Retail Clerks Union create some doubt as to Respondent's motivation for discharging her, we are nevertheless convinced that there are countervailing facts which warrant a finding that her dis- charge was not discriminatorily motivated. In particular, we note that for a period of a few years prior to the discharge, Godeke was involved in a number of incidents which reflect an escalating person- ality conflict with W. R. Watkins, the proprietor .3 These incidents finally culminated on June 19, 1964, when Godeke was observed going through Watkins' desk in a suspicious manner. Godeke does not deny having engaged in this improper action. Although Godeke was not discharged until June 24, 1964, 5 days later, there is undisputed testimony that Godeke was retained because she was needed to com- plete the payroll that was due June 24; the date of her discharge. It i In the absence of exceptions thereto, we adopt pro forma the Trial Examiner 's recom- mended dismissal of the allegations of the complaint alleging that Respondent violated Section 8 ( a)(3) and (1) in discharging Danny Brown. 2 In his supporting brief, the General Counsel agrees that a remand to the Trial Ex- aminer for supplemental findings of fact is not required under the circumstances of this case. 8 These incidents involved outbursts of temper by Godeke in the presence of customers and the use of threatening and derogatory remarks to Watkins. 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is true that Respondent was cognizant of the fact that Godeke was active on behalf of the Retail Clerks Union , and that she was the first to sign a petition for recognition on behalf of this Union which was presented to the Respondent on February 29, 1964. It is also true, however, that Respondent retained in employment Jimmie Hunt, the grocery manager , despite knowledge that he was equally as active on behalf of the Retail Clerks Union as Godeke and that he had also signed the aforesaid petition for recognition . Moreover , Respondent apparently has had an amicable bargaining relationship with the Meat Cutters Union respecting the employees in the meat department. In view of the lapse of time between her organizing activities and her discharge , and the rather significant fact that Respondent has not coerced or unlawfully attempted to influence employees in their union activities or otherwise engaged in any conduct violative of Section 8(a) (1) at any time material herein, we find insufficient basis for concluding that her discharge was discriminatorily motivated. In these circumstances , we conclude that the General Counsel has not sustained the burden of proving any discriminatory motivation for her discharge . We shall, accordingly , dismiss the complaint. [The Board adopted the Trial Examiner's Recommended Order dismissing the Complaint.] TRIAL EXAMINER 'S DECISION STATEMENT OF THE CASE This proceeding was held before Trial Examiner W. Gerard Ryan at a hearing in Houston, Texas, on November 4, 5, and 6, 1964 , on the consolidated complaint of General Counsel and the answer of Watkins Center herein called the Respondent., The issues litigated were whether the Respondent violated Section 8 (a) (3) and (1) of the Act . The parties waived oral argument . The General Counsel and the Respondent have filed briefs. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent is and has been at all times material hereto, a sole proprietorship owned and operated by W. R. Watkins, having its principal office and place of business at 10510 Cullen Boulevard, Houston, Texas, where it is engaged in the retail grocery business. During the past 12 months, which period is representative of all times material herein , Respondent in the course and conduct of its business operations sold and distributed goods and products , the gross value of which exceeded $ 500,000 During the same period of time Respondent received goods valued in excess of $10,000 for 1 The original charge in Case No. 23-CA-1839 was filed on June 24, 1964 , and served on Respondent by mailing a true copy thereof to it by registered United States mail on June 24, 1964. The amended charge In Case No . 23-CA-1839 was filed on July 10, 1964 , and served on Respondent by mailing a true copy thereof to it by registered United States mail on July 10, 1964 The original charge in Case No . 23-CA-1848 was filed on July 13, 1964 , and served on Respondent by mailing a true copy thereof to it by registered United States mail on July 14, 1964. WATKINS CENTER 445 the purpose of resale at its Houston , Texas, store , which goods were produced in states other than the State of Texas and were received by Respondent directly or indirectly in interstate commerce. Respondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2 ( 6) and (7) of the Act. IT. THE LABOR ORGANIZATION INVOLVED Retail Clerks Union Local 455, AFL-CIO, Retail Clerks International Association, AFL-CIO, herein called the Union, is and has been at all times material herein a labor organization within the meaning of Section 2 (5) of the Act. Ill. THE ALLEGED UNFAIR LABOR PRACTICES The consolidated complaint alleged that the Respondent violated Section 8 (a) (3 ) and (1) of the Act by discharging its employees Irene Kelly, Danny Brown, and Julia M. Godeke. In its answer the Respondent admitted that it discharged Danny Brown and Julia M. Godeke on June 20 and 24, 1964,2 respectively, but denied that it discharged Irene Kelly and alleged that it laid off Kelly on or about April 27. The Respondent denied that the discharges and layoff were in violation of the Act. The Respondent is a sole proprietorship owned and operated by W. R. Watkins and has its principal office and place of business in Houston, Texas, where it is engaged in the retail grocery business. The Respondent employs approximately 28 employees at its one retail store approximately four of which employees are employed in the meat department and are covered by a collective-bargaining agreement between the Respondent and the Amalgamated Meat Cutters Union, Local No. 408. In early 1964, Retail Clerks Union, Local 455, AFL-CIO, Retail Clerks Interna- tional Association, AFL-CIO, herein called the Union, began an organizational drive in an effort to gain recognition as the bargaining representative of the Respondent's employees. On or about February 29, 1964, the representatives of the Union deliv- ered to Watkins a request for recognition signed by 21 employees including Kelly, Brown and Godeke. Thereafter, the Respondent filed a petition for an election with the Regional Director. A hearing was held before a Hearing Officer of the Board, and on June 15, 1964, a Decision and Direction of Election was issued by the Regional Director finding that the following employees constituted a unit appropriate for the purposes of collective bargaining: All employees employed at the Employer's store located at 10510 Chocolate Bayou Road, Houston, Texas, including the produce manager and the meat department porter, but excluding all the clerical employees, guards, watchmen, confidential employees, temporary employees, and meat department employees currently represented under collective bargaining agreement, and supervisors as defined in the Act.3 In the Decision and Direction of Election, the Regional Director specifically con- cluded that Godeke, the office manager, was a supervisor within the meaning of Section 2 (11) of the Act. An election was conducted among the employees in the appropriate bargaining unit on July 9. The challenged ballots were sufficient to affect the results of the election and the challenged ballots had not been resolved at the time of the hearing in the instant case. As a defense to the complaint alleging that Godeke was discriminatorily discharged in violation of the Act the Respondent's answer avers in substance that Julia M. Godeke, the Respondent's office manager at all times material prior to June 24 was a supervisor within the meaning of the Act and accordingly her discharge was not protected by the provisions of Sections 7 and/or 8 of the Act. The General Counsel contends and I agree that neither the Trial Examiner nor the Board is bound by the Regional Director's finding that Godeke was a supervisor within the meaning of the Act. In Southern Airtivays Company 4 and Leonard Niederriter Company, Inc.,e the Board found that it was not in unfair labor practice proceedings bound by prior findings in representation cases regarding the supervisory status vel non of certain employees. 2 A11 dates hereinafter refer to 1964 unless stated to be otherwise. R Case No. 23-RM-139 of which proceeding I take official notice. 11124 NLRB 749, footnote 2. 6 130 NLRB 113, footnote 2. 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD According to Godeke's testimony she commenced working for Watkins in 1955. Later she was moved into the courtesy booth assisting Archerd. About 1'/2 years after August 1955 Archerd quit and Watkins arranged for Godeke to commence work- ing full time in the courtesy booth. Godeke worked this schedule for about 9 months and then Watkins hired a relief courtesy booth operator, Clarice Daniel. It is clear that Godeke taught Daniel the procedures of operating the courtesy booth; e.g., list- ing utility bills, cashing checks, and issuing money orders. Daniel worked in the booth for approximately 1 year and then quit. Watkins then arranged for Doris Newton to help in the booth. As in the case of Daniel, Godeke taught Newton the booth procedures. In August 1960 when the Respondent opened its new store building, J. C. Farmer was also working in the booth. Godeke taught Farmer, manager of the store, the booth procedures. Prior to this and in approximately 1958 or 1959 Godeke had instructed Watkins in the booth procedures. In January 1963 Godeke asked Watkins for some additional help in the booth. Early in 1963 Watkins decided to place Nancy Hill, a checker, in the booth. He did this despite the expressed opinion of Godeke that Hill would not be a satisfactory booth employee. A. Nancy Hill According to Godeke, after Watkins had transferred Hill to the courtesy booth, he directed Godeke to draw up a work schedule for the two. After checking with Watkins to ascertain the number of hours he desired Hill to work, Godeke drew up a schedule and then presented it to Watkins. As in the case of Daniel, Newton, Farmer, and Watkins, Godeke showed Hill the various procedures involved in operating the booth. Unlike Godeke, Hill received a lunch break. Godeke did not authorize this lunch break for Hill and it apparently was cleared by Watkins. Hill left the employ of Respondent in early April 1964. B. Godeke's Duties in 1964 From January 1964 to the date of her discharge on June 24, Godeke's duties remained substantially the same. On arriving at the store Godeke would enter the booth, open the safe and start checking the money bags turned in by the checkers on the previous day. At 8 a.m. the booth was opened to the public. Each Monday Godeke would make out the weekly report of money orders sold to customers during the preceding week. A daily task of Godeke's (or anyone else working the booth) was to list the utility bills, a procedure which consisted of record- ing the utility bills paid by customers on forms provided by the various local utility companies and then computing the amount of money due to the individual utility companies by Watkins. Godeke and all who worked in the booth cashed checks for customers. A publication known as Houston Retailers Security Bulletin listed the names and ratings of employers who issued payroll checks. The book rating of employers determined whether or not courtesy booth personnel were allowed to cash their payroll checks. This publication also listed individuals who had outstand- ing checks for insufficient funds and the booth operators were not allowed to cash a check for anyone on this list. Regarding personal checks, booth operators could cash none in excess of $25 without Watkins' approval. Some time during the day the booth operator would fill up money bags with $50 apiece for use of the store checkers on the succeeding day. During a typical day customers would come to the booth and pay their utility bills. These payments were accepted and processed by Godeke or any other operator of the booth. A considerable amount of merchandise received by Watkins was on a c.o.d. basis. After the merchandise was checked into the store, the salesman would proceed to the booth for a cash payment. Watkins also had credit from some of its suppliers. As payments of these accounts became due, Godeke would review the statements and then make out a check for Watkins' signature. Godeke made up bank deposit slips. She was a notary public and turned over all the proceeds from this service to Watkins. During the month of January each year Godeke and others issued poll tax receipts and during each March the courtesy booth handled State license plate tags. On each day that Godeke worked, she would fill out Respondent's daily financial report, a document which showed all the sales and disbursements of the store during the preceding day. Godeke was in charge of the payroll computations and made out the timecards for use by Respondent's employees. She had a list of employees and their pay rates, income tax deductions, and insurance deductions and used this list and the time- WATKINS CENTER 447 cards to compute the employees' weekly pay. Godeke would compute the employ- ees' pay on Monday or Tuesday of each week and then distribute the paychecks each Wednesday at the booth. With respect to new employees Godeke would see that they executed W-4 forms. She would inform the employees about the pay periods and paydays and would explain Respondent's voluntary group hospitalization plan. When employees were injured on the job, they reported the fact to Godeke, who filled out a form and sent it to Watkins' insurance carrier. Godeke used the W-4 forms to ascertain dates of employment of past employees who filed for unemployment compensation. According to Godeke, Watkins usually filled out the unemployment compensation forms himself or told her what informa- tion to record thereon. Watkins, on the other hand, stated that Godeke normally handled matters from the Texas Employment Commission. Godeke referred all telephone calls for personal references to Watkins. She did some limited typing for Watkins, mostly of form letters requesting payment of insuf- ficient fund checks. Godeke kept a file dealing with insurance payments and fidelity bond payments. At the appointed time she would prepare a check for Watkins' sig- nature to handle the payment of these items. With respect to vacations of employees, Godeke drew up a chart each year listing the name of all employees eligible for vacation. Godeke would not schedule the employees for vacation but only recorded the scheduled vacations after they were cleared with Watkins. Taking Watkins' testimony about vacations at face value he had little if any knowledge of employees' desires regarding vacations. C. Laura Stephenson Some time during the latter part of 1963 or early 1964 Stephenson, a part-time checker, started working in the booth listing utility bills and preparing reports of coupons for redemption. Godeke showed Stephenson how to compile these reports. In January 1964 Stephenson, at the behest of Watkins and not Godeke, was scheduled to sell poll taxes. Also in January 1964 Stephenson had to ask Godeke for assistance in connection with the listing of utility bills. A typical question as recalled by Stephenson pertained to the required procedure when a tape addition did not coincide with the money amounts listed on the utility bills. Godeke explained what had to be done. In March 1964 Stephenson was deputized to sell car license tags through the booth. Watkins arranged for Stephenson to do this work. Stephenson recalled a day in April 1964 when Watkins called her to come in and work the booth because Nancy Hill was ill. Stephenson never requested Godeke to grant her time off. Although Stephenson admitted making some mistakes in the courtesy booth in 1964, she testified that Godeke did not reprimand her for these errors but acted as if she were displeased. Stephenson, who is shown from her testimony to have had no affiliation with the Union, admitted under cross-examination by Respondent that Watkins had never told her who would give the orders in the courtesy booth and that he had just told her to go and see about doing the utilities. Stephenson testified regarding the listing of coupons that if the coupons were sufficient in number, Godeke would ask Stephen- son to come in and list them. Stephenson stated that she looked to Watkins for raises in pay and changes of hours of work. As a rule, when Stephenson was needed part time to work in the booth selling license tags in March she was either called by Watkins or Godeke. On one occasion Godeke directed Stephenson to return the next day to finish listing of utility bills.6 At the time of Godeke's discharge on June 24, Stephenson was listing utility bills at her home by virtue of an arrangement with Watkins. D. Gloria Purdy, Glenn Dixon, and Ruby Hendrix Godeke testified that in January 1964 Purdy and Dixon came into the Booth on occasions and listed utility bills. On these instances Watkins would first inquire of Godeke regarding the utility bills and if he learned that they had not been listed, he would instruct Godeke to ask one of the other store employees to come in and do the work. 6 Stephenson also testified she would take any problems she had to Godeke and regarded Godeke as the person in direct authority over her as far as her work in the courtesy booth was concerned. 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD E. April through June 24,1964 In early April 1964 Nancy Hill quit the employ of Watkins . Godeke then changed her work schedule upon the instructions of Watkins and commenced working from 7 a.m. to 5 p.m ., 6 days per week. She continued to work this schedule until her discharge on the evening of June 24, 1964. Although the record shows that Godeke had no authority to hire, transfer, lay off, recall, promote , discharge , reprimand or discipline employees or effectively to recommend such action , it is clear that she did some direction of work ( as the Gen- eral Counsel concedes in his brief ) but the General Counsel contends that Godeke's authority in directing employees was of a routine and clerical nature, not requiring the use of independent judgment. The record further shows without dispute that the Respondent paid all its employ- ees on an hourly basis , except the general manager, the market manager , and Godeke the office manager who were paid on a weekly salary basis . The Respondent followed a policy at Christmastime of giving a present of either a ham or a turkey to rank- and-file employees but the managers including Godeke received cash in addition to their gifts . It is further undisputed that Godeke did not protest the Regional Director's finding that she was a supervisor within the meaning of the Act, because she was "in charge of the office and independently supervises and directs the work of other employees who work in the office , for whose training , discipline , and work schedule she is responsible." See Crimptex, Inc., 145 NLRB 452. On the basis of all the evidence with respect to the question as to whether or not Godeke was a supervisor within the meaning of the Act I find and conclude that she was a supervisor within the meaning of Section 2(11) of the Act. I shall therefore recommend that the complaint with respect to Godeke be dismissed. F. Irene M. Kelly Kelly was employed as a stocker in September 1963. She had previously been employed by the Respondent approximately 8 years prior to September 1963 for approximately 8 months at which time she was laid off. On the day before she began work in September 1963 Watkins and Grocery Man- ager Jimmy Ree Hunt 7 discussed the advisability of hiring a female stocker. Prior to this time only male stockers had been employed and the Respondent had difficulty getting men to work for the salary paid by Respondent and the school schedules of teenage boys prevented them from working with any regularity. On the same day that Watkins and Hunt discussed the hiring of a female stocker Irene Kelly appeared at the store and asked Watkins if he needed any help. Watkins discussed the matter further with Hunt who said that perhaps Kelly would suitably fill the job as female stocker; whereupon Watkins told Kelly to report for work the following day. The Respondent 's stock of goods is stored in a warehouse adjacent to the grocery store. Each stocker is and was responsible for obtaining his own stock from the warehouse to place on the shelves in the store In order to obtain stock from the warehouse it is necessary to load the merchandise on a stock cart,8 bring it down a ramp and then pull it up another ramp to get into the grocery store. The testimony of Kelly, corroborated by Danny Brown, was that where all other stockers secured their own stock from the warehouse , Kelly needed assistance in obtaining her stock from the warehouse. Either during the time Kelly was in the hospital or prior thereto Watkins creditably testified that he complained to Hunt that Kelly never reached the point where she could get the stock by herself and that Watkins was hiring two people to do the work of one. Hunt agreed with Watkins. Apart from her required assistance in obtaining her stock there is nothing in the record to suggest that Kelly was not a capable employee. Three weeks after she was employed she was moved to the canned goods aisle for the purpose of straightening it out and shortly thereafter was complimented by Hunt on its appearance. In October 1963 Watkins complimented Kelly on the appearance of the damaged mer- chandise shelf which she was handling and in April 1964 Watkins told her he was thinking of putting her on a better paying job handling frozen foods . Watkins testi- fied that Kelly turned down the frozen food job and his testimony is uncontradicted. Y Hunt took an active part in union activities, was the first to sign the letter of February 28 above referred to, talked to employees to join the Union and attended sev- eral ' union meetings s The amount of merchandise loaded on a stock cart varied from 100 to 150 pounds. WATKINS CENTER 449 Kelly first attended a union meeting at Godeke's house on February 20 and was the second to place her signature on the letter dated February 28 to Watkins (Gen- eral Counsel's Exhibit No. 2). Kelly also attended three other meetings at Godeke's house and two other meetings at the homes of other employees. On April 13 Kelly became ill and was hospitalized until April 27. Watkins thereafter never employed a female stocker although he did employ three male stockers to replace men who had been discharged or quit. Watkins testified that he laid Kelly off at the time when her husband came into the store and told him she would be ready to return to work in a week or two. Watkins testified that he told her husband that there was nothing for her right at the moment and that Watkins would call her if he had anything else for her. Weekly through May and June, Kelly checked with Watkins attempting to return to work but the only reply she received was that business was slow. On the last Friday in June Kelly again asked Watkins for work. She testified that she was then told for the first time that she had been used as an experiment. Watkins testified that he told her on all occasions when she inquired for work that business was "off some" but to stay in contact with him in the event an opening should occur. The General Counsel contends in his brief that the statements of Watkins and Hunt regarding their intention to reemploy Kelly lose all force and effect when one realizes the fact that she has not been reemployed. Viewing the entire record as a whole I find the General Counsel has failed to prove by the required preponderance of the evidence that Kelly was discharged for dis- criminatory reasons violative of Section 8(a)(3) of the Act. I find she was not discharged. She was not rehired after her hospitalization because the Respondent did not want to rehire her as a female stocker. Knowledge by Watkins that she was one of 21 employees to sign the letter of February 28, above referred to, together with his admitted knowledge that his employees attended union meetings is not suffi- cient in my opinion to prove that Watkins acted from a discriminatory motive viola- tive of Section 8(a)(3) of the Act. With nothing more such knowledge cannot be equated with discriminatory motives violative of Section 8(a)(3) of the Act. I shall therefore recommend that the complaint with respect to Kelly be dismissed. G. Danny Brown Brown was one of the 21 employees who signed the letter dated February 28, 1964, to Watkins authorizing the Union to represent them for purposes of collective bar- gaining and requesting Watkins to meet for the purpose of negotiating a contract. Brown thereafter attended union meetings. Watkins knew from the letter the employ- ees who desired the Union to act as their representative and he testified that he knew that the Union was holding meetings thereafter. Brown was a high school student who had worked for the Respondent since May 11, 1963. During the school year he worked part time as a carryout boy and through the summer months he worked a regular schedule. About 2 weeks prior to his discharge he was assigned by Watkins to be in charge of the bottle yard. The carryout boys bought empty soda water bottles which had been returned by the customers to the bottle yard where Brown assorted the bottles, put them in cases, stacked the cases, and cleaned up the broken glass. Approximately 1 week before Brown's discharge Mrs. Watkins reported to Watkins that Brown was sleeping on the job. Watkins took no action on that report and did not mention it to Brown. On June 20 Watkins testified that he discharged Brown for sleeping on the job. George Barbato, meat department manager and a member of Local Union No. 408 of the Amalgamated Meat Cutters and Butcher Workmen of North America, corroborated Watkins' testimony. Barbato testified that he and Watkins approached to within 20 feet of the bottle-yard house and saw Brown was prostrate, asleep on the porch of the bottle-yard house. At that point according to Barbato, Watkins called to Brown but received no response. When they were within 7 to 10 feet of Brown, Watkins called out "Danny, what are you doing?" Barbato continued to testify that Brown then jumped up and said "I guess I fell asleep." Watkins then discharged Brown. According to Brown's version he testified that he was not asleep but had been sitting down for 5 to 10 minutes with his back against the post with his eyes closed and was fanning himself with his hat. I credit the testimony of Watkins and Barbato. The fact that Watkins was aware of Brown's union activities because he was one of 21 employees who signed the letter to Watkins dated February 24 and that his employees attended union meetings is not sufficient in my opinion to prove that Watkins acted from a discriminatory motive violative of Section 8(a)(3) of the Act. 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The General Counsel contends on page 13 of his brief that even if Watkins is credited regarding Brown's sleeping, the discharge of Brown requires a finding that Section 8(a)(3) of the Act was violated. The General Counsel claims this becomes apparent from Watkins further testimony that his wife had reported Brown asleep the week before his discharge. The General Counsel argues: Watkins took no action regarding this alleged report by his wife. Had Watkins desired to terminate Brown for cause, as distinguished from a discharge in violation of the Act, it is incredible that he would not have relied upon his wife's alleged report a week before June 20, 1964. I find no merit in that argument. The fact that Watkins did not discharge Brown could indicate that he was not looking for a reason to discharge Brown but did discharge him a week later when he personally observed him. Upon the entire record I find that the General Counsel has failed to prove by the required preponderance of evidence that Brown was discriminatorily discharged in violation of the Act. I further find that Brown was discharged solely for cause. I shall recommend that the complaint with respect to Brown be dismissed. Upon the basis of the foregoing findings of fact and on the entire record I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. The Respondent has not engaged in any unfair labor practices within the mean- ing of Section 8 (a) (3) and (1) of the Act. 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 consolidated complaint against the Respondent be dismissed in its entirety. Coca-Cola Bottling Company of Baltimore and United Packing- house, Food , and Allied Workers, AFL-CIO, Petitioner. Case No. 5-RC-5310. December 29,1965 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer August A. Denhard, Jr. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. The Employer's and Petitioner's brief were received, and, upon the entire record in this case, theNational Labor Relations Board finds: 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdic- tion herein. 2. The labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act. 4. The Petitioner seeks a unit of all production and maintenance employees, loading and shipping employees, and garage employees 156 NLRB No. 46.