McCREE, Circuit Judge.
The National Labor Relations Board petitions for enforcement of its order requiring respondent to offer to reinstate, with backpay, Roger Bush, who was discharged on January 30, 1970. The order also requires respondent to cease and desist from committing an unfair labor practice found by the Board and to take certain affirmative remedial action. The Board determined that Bush's discharge violated section 8(a) (1) of the National Labor Relations Act, 29 U.S.C. § 158(a) (1), because respondent was motivated by Bush's participation in concerted activity protected by section 7 of the Act, 29 U.S.C. § 157.
The underpinning of the Board's case is the timing of the discharge. Bush was employed in July 1968 and discharged on January 30, 1970. During the fall and early winter of 1969-70, Bush and other employees engaged in several discussions regarding payment rates for overtime work. They apparently concluded that the company should pay a daily overtime rate for any hours worked after eight hours in one day, whether or not the total hours worked in that week averaged more than eight for each working day or exceeded forty. On January 22, 1970, Bush and several other employees were discussing the subject in the company lunchroom when a foreman, Carl Hood, entered. Bush spoke up and asked what Hood "could do about getting us paid overtime for anything over eight hours a day." Hood responded, in effect, that he could not help, and that Bush would have to speak to higher management about it.
On January 29, Bush spoke to another foreman, William Frazee, about the same subject and received a similar answer. On January 30, foreman Hood informed Bush that Merle Evans, respondent's vice-president, secretary and plant manager, wanted to speak to him. Evans then discharged Bush and gave him a check for his wages. According to Bush, no explanation was offered, except
We have no doubt that the described employee discussions about overtime pay and Bush's ensuing overtures to the foremen were protected concerted activities within section 7. NLRB v. Washington Aluminum Co., 370 U.S. 9, 14, 82 S.Ct. 1099, 8 L.Ed.2d 298 (1962); NLRB v. Halsey W. Taylor Co., 342 F.2d 406, 408 (6th Cir. 1965). Accordingly, the discharge violated section 8(a) (1) of the Act if it was on account of these activities, as the temporal relationship between the incidents and the discharge suggests. E. g., NLRB v. Tennessee Packers, Inc., 390 F.2d 782, 784 (6th Cir. 1968).
The Board additionally relies upon a history of company opposition to unionization, and a specific incident involving Bush, as indications that the company sought to suppress collective activity. The Trial Examiner credited Bush's testimony that he had been specifically rebuked in October 1969 for discussing with another employee the possible benefits of unionization, and discredited Evans' contrary testimony. Bush testified that he and Charlie Kinder sat in a bar and discussed unionization of the company:
The next day, Merle Evans and his brother Tim, the company president, called Bush into their office and chastised him for "talking union." According to Bush, "Merle Evans said that they never wanted to hear me or . . . that I'd ever talked about a union again."
Finally, the Board emphasizes on appeal, as did the Trial Examiner and the Board majority in their opinions, that the company has not been consistent in its explanation of the discharge. We have reviewed the record and noted the several inconsistent explanations proffered by company representatives. They are discussed in some detail in the Trial Examiner's opinion and in the Board's Decision and Order, and we need not describe them here. Although Bush was apparently an energetic person and capable of being a good worker, it is clear that he was far from a model employee. Testimony indicated that he had been involved in a fight on company premises approximately 15 months before his discharge; that, 2 or 3 months before his discharge, he had been reprimanded for spending too much time in the locker room; that he was repeatedly tardy; that he had been absent without a valid excuse on several occasions; and that his attendance problems apparently resulted from a hyperactive social life offensive to local morality and from excessive consumption of alcohol.
However, despite this pattern of behavior almost from the time he was hired, Bush was given eight merit wage increases during his 18 months employment. These increased his wage rate from $1.95 per hour to $3.15 per hour. Merle Evans testified that Bush, "as far as work is concerned, when he wanted to work he could be an excellent employee, and when he didn't want to, he could aggravate you to death." There was uncontradicted testimony from other witnesses that Bush worked hard, that he helped other employees when they needed help, and that he was occasionally assigned to train new employees.
We conclude that there is substantial evidence on the record considered as a whole to support the Board's conclusions. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951); NLRB v. Cavalier Olds, Inc., 421 F.2d 1234 (6th Cir.
Universal Camera, supra, 340 U.S. at 496-497, 71 S.Ct. at 469. Here, the Trial Examiner made credibility resolutions adverse to both parties. In at least one instance he credited a material part of Bush's testimony which was directly contradictory of Merle Evans' later testimony. And it further appears that the Trial Examiner decided the case upon a technicality and did not resolve the difficult factual issues. At the conclusion of his factual analysis, he stated:
In a footnote, the Trial Examiner also stated that:
The Board declined to provide the procedural direction which the Trial Examiner apparently sought. Instead it relied upon testimony in addition to that discussed by the Trial Examiner, and stated that:
We, too, find it unnecessary to discuss the evidentiary issue raised by the Trial Examiner, although we observe that, when it would be natural under the circumstances for a party to introduce documents in his possession and he fails to do so, his failure may invoke an adverse inference. C. McCormick, Evidence § 249 (1954); II J. Wigmore, Evidence §§ 285, 291 (3d ed. 1940).
WEICK, Circuit Judge (dissenting):
The Trial Examiner, who heard the witnesses and observed their demeanor, after holding that the General Counsel had established a prima facie case, found that it was rebutted by the testimony of Evans which he credited, and recommended a dismissal of the complaint. He stated:
A divided panel of the Board, in reviewing the record, reversed the Trial Examiner and held that Evans violated Section 8(a) (1) of the Act and issued a cease and desist order requiring the Company to cease and desist from interfering with, restraining, and coercing its employees in the exercise of their Section 7 rights by discharging employees for engaging in activities protected by said section and granted affirmative relief requiring the Company to reinstate employee Bush with back pay.
Chairman Miller dissented, stating in his opinion:
The complaint filed by General Counsel charged only a violation of Section 8(a) (1) of the Act. No charge was made in the complaint that the discharge of Bush violated Section 8(a) (3) of the Act which is the only section dealing with discharges. The Board
Section 8(a) (3) of the Act, in pertinent part provides:
There was not a scintilla of evidence that the employer discriminated against Bush to discourage membership in the Union. The Board made no such finding. It wasn't even charged in the complaint.
In N.L.R.B. v. Ogle Protection Service, Inc., 375 F.2d 497, 505 (6th Cir. 1967), Judge Cecil, in writing the opinion for the Court stated:
In Ogle, the employee was discharged because he came to work with the odor of liquor on his breath. Id. 506.
In N.L.R.B. v. McGahey, 233 F.2d 406, 410 (5th Cir. 1956), the Court held:
In N.L.R.B. v. Dan River Mills, Inc., 274 F.2d 381, 384 (5th Cir. 1960), the Court stated:
The usual order issued by the Board when it finds a violation of § 8(a) (1) is to cease and desist while the order issued for a § 8(a) (3) violation is to reinstate with back pay.
In my opinion, the flimsiest kind of evidence was relied upon by the Board to support even an 8(a) (1) violation. It is detailed in the majority opinion as follows:
The company had been paying overtime for work in excess of forty hours a week. The discussions of the employees related to daily overtime where the total number of hours worked in an entire week did not exceed forty hours.
There was not a scintilla of evidence that these conversations, alleged to be protected activities, were ever communicated to the management of the company. There was no proof that Bush or any other employee of the company ever made any request of management for daily overtime pay. It is most significant that no employee, other than Bush, of the many employees involved in the discussions was discharged. This is substantial proof that the overtime discussions were not a motivating factor in the discharge of Bush. Kellwood Co. v. N.L.R.B., 411 F.2d 493, 498 (8th Cir. 1969). The fact is that Bush was properly discharged for other good and sufficient reasons.
The mere coincidence of the employee's alleged protected activity with his discharge will not support a discrimination. Broadway Motors Ford, Inc. v. N.L.R.B., 395 F.2d 337 (8th Cir. 1968); N.L.R.B. v. Swan Super Cleaners, Inc., 384 F.2d 609 (6th Cir. 1967).
Nor are suspicious circumstances that an employer may have been activated by unlawful motives in discharging an employee sufficient to support a finding of an unfair labor practice. Lozano Enterprises v. N.L.R.B., 357 F.2d 500 (9th Cir. 1966); Kellwood Company v. N.L. R.B., supra.
An inference must be based upon substantial evidence either direct or circumstantial and not upon mere surmise or suspicion.
As well stated in N.L.R.B. v. Ogle Protection Service, Inc., supra:
It is well settled in this Circuit that an employer may discharge an employee for any reason so long as he is not motivated by anti-union discrimination. As well stated in N.L.R.B. v. Bangor Plastics, Inc., 392 F.2d 772, 776 (6th Cir. 1967):
In Kellwood v. N.L.R.B., supra, the Court held that pro-union activities do not insulate an employee against a lawful discharge for cause. N.L.R.B. v. Swan Super Cleaners, Inc., 384 F.2d 609 (6th Cir. 1967). Also, an employer's general hostility toward a union does not, standing alone, supply unlawful motivation for a lawful discharge.
Plant Manager Evans testified that neither Hood or Frazee ever reported the alleged protected conversations about overtime pay to him, and he did not learn of them until after the charge had been filed in the present case. Notwithstanding the lack of any testimony to the contrary, the Trial Examiner and the Board did not credit Evans' testimony on this point. In a similar situation, the Court in N.L.R.B. v. Whitfield Pickle Company, 374 F.2d 576, 581 (5th Cir. 1967) said:
Even assuming, however, that the General Counsel had made out a prima facie case of a Section 8(a) (1) violation, the Trial Examiner found credible evidence to counter-balance it. He credited Plant Manager Evans' testimony concerning Bush's habitual tardiness and absenteeism and, on this basis, recommended a dismissal of the unfair labor practice charge. Absenteeism and tardiness constitute a proper and reasonable basis for discharge. DC International, Inc. v. N.L.R.B., 385 F.2d 215 (8th Cir. 1967); N.L.R.B. v. Blue Bell, Inc., 219 F.2d 796 (5th Cir. 1955).
Plant Manager Evans further testified that as far back as 1969 there were occasions when Bush was tardy and absent from work. This continued over the months to get progressively worse. In December, 1969, Bush was tardy five different days and absent a half day. In January, 1970, (month of discharge) he was absent four out of twenty working days and tardy on three other days. Evans had warned Bush on more than one occasion that the company would not put up with his tardiness, but these warnings had no effect. Bush had explanations, however for his tardiness but they were frivolous. One explanation was that he did not have the money to purchase an alarm clock. The other was that his automobile was wrecked in an accident. (He lived only two city blocks from the plant and he never claimed that he could not walk).
Bush was warned several time about spending too much time in the locker room.
He was involved in a fight at the plant with another employee about fifteen months before his discharge. More recently, in fact only two weeks before his discharge, he engaged in a fight with his own brother in a barroom argument over a woman and fractured his brother's nose. The majority opinion concedes that Bush's "attendance problems
The hearsay evidence concerning the discussion between Bush and Charlie Kinder over the possible benefits of unionization, and Evans rebuking Bush for talking about the union, involved an isolated incident which took place in October, 1969. In any event, the employer has a right of free speech. 29 U.S.C. § 158(c).
As well stated in Lozano Enterprises v. N.L.R.B., supra:
Both the Board and the majority rely on the fact that the employer did not introduce in evidence Bush's time cards. There was abundant testimony concerning Bush's tardiness and absenteeism without the cards and Bush did not deny it, but gave flimsy excuses for it. In any event, the burden of proof was not on Evans but on the General Counsel to establish the unfair labor practice. AHI Machine Tool & Die, Inc. v. N.L.R.B., 432 F.2d 190 (6th Cir. 1970); N.L.R.B. v. Bangor Plastics, Inc., 392 F.2d 772 (6th Cir. 1967); N.L.R.B. v. Swan Super Cleaners, Inc., 384 F.2d 609 (6th Cir. 1967); Rivers Manufacturing Corp. v. N.L.R.B., 376 F.2d 511 (6th Cir. 1967). The General Counsel recognized his deficiency when he filed a motion to reopen the case to subpoena the cards.
In Universal Camera Corp. v. N.L.R. B., 340 U.S. 474, 490, 71 S.Ct. 456, 466, 95 L.Ed. 456 (1951), the Court stated:
It is apparent to me that, applying these standards, the evidence in this case lacks substantiality and that the order of the Board ought not to be enforced.