Tube Turns, a Division of Chemetron Corp.

National Labor Relations Board - Board Decisions

Mar 1, 1982

260 N.L.R.B. 584 (N.L.R.B. 1982)

I)FCISIONS O() NATIONAL LABOR RELATIONS BOARD
Tube Turns, a Division of Chemetron Corp. and
Richard Webster. Case 9-CA-15745
March 1, 1982
DECISION AND ORDER
BY CHAIRMAN VAN I)F WATIER AND
MEMBERS FANNING AND HUNTER
On September 15, 1981, Administrative Law
Judge Arline Pacht issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Re-
spondent filed a brief in opposition to the General
Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions 2 of the Administrative Law
Judge and to adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
' The General Counsel has excepted to certain credibility findings
made by the Administrative Law Judge. It is the Board's established
policy not to overrule an administrative law judge's resolutions with re-
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect. Standard Dry
Wall Products, Inc., 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir
1951). We have carefully examined the record and find no basis foir re-
versing her findings.
2 In adopting the Administrative Law Judge's conclusion that Re-
spondent's discharge of employee Webster was not unlawful, we con-
elude that on the singular facts of this case the General Counsel has not
established a violation of the Act by a preponderance of the evidence
Additionally, we do not rely on the Administrative law Judge's finding
that Webster previously had been discharged by another employer for
falsifying information on his employment application.
DECISION
STATEMENT OF THE CASE
ARLINE PACHT, Administrative Law Judge: Upon a
charge filed on August 27, 1980 the General Counsel
issued a complaint on October 6, alleging that Tube
Turns, a Division of Chemetron Corp. (hereinafter called
Tube Turns or the Respondent), unlawfully discharged
Richard Webster in violation of Section 8(a)(1), (3), and
(4) of the National Labor Relations Act, as amended,
herein called the Act. By timely answer the Respondent
denied any wrongdoing. A hearing was held before me
on June 8 and 9, 1981, in Louisville, Kentucky.
Upon the entire record, my observation of the demea-
nor of the witnesses and consideration of the post-hear-
ing briefs, I make the following:
FINDINGS OF FACT
JURISDICTIONAL FINDINGS
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Delaware corporation, has at all
times material herein been engaged in the manufacture of
steel forgings at its Louisville, Kentucky, facility. During
the past 12 months, a representative period, Respondent
in the course and conduct of its business operations sold
and shipped goods, products, and materials valued in
excess of $50,000 from its Louisville facility directly
from points outside the State of Kentucky. Upon the
foregoing facts, the General Counsel alleges, the Re-
spondent concedes, and I find that the Respondent is en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
Il. THE Al LEGED UNFAIR L.ABOR PRACTICES
Richard Webster was hired by Tube Turns in Septem-
ber 1979 as a third-shift maintenance mechanic I, the
highest classification for such positions.' He was a capa-
ble employee, receiving a satisfactory evaluation on com-
pleting a 60-day probationary period, and was granted
two pay increases during his 11 months with the Compa-
ny.
However, Webster soon began expressing dissatisfac-
tion with certain working conditions which, the General
Counsel contends, ultimately led to his discharge on
August 13, 1980. Thus, in the latter part of 1979, and
into the first few months of 1980, he filed a number of
grievances affecting such matters as the subcontracting
out of maintenance work, vacation scheduling, and the
distribution of overtime. According to Henry Wirth,
third-shift steward for the United Steelworkers, Webster
registered more grievances than any other employee in
this period of his employment. Management apparently
was not kindly disposed towards Webster's persistent
complaint-filing, for when Wirth attempted to find out
why the processing of Webster's grievances was delayed,
the plant superintendent informed him that management
was in no hurry to dispose of them.
In February 1980, turning to a different strategy to
voice his discontents, Webster initiated a campaign to
sever the maintenance department from the balance of
the production and maintenance unit represented by the
United Steelworkers. Toward this end, Webster circulat-
ed a petition seeking signatures of those supporting sev-
erance, passed out leaflets to his coworkers, and spent
considerable time advocating the merits of such a move-
' Tube Turns' formal job description requires, inter a/ia, that class I
mechanics perform maintenance repairs and construction on a diversified
and complete line of machine and forging equipment, perform periodic
inspections of various equipment and systems, and prepare written status
reports This required 3 to 4-1/2 years' experience
260 NLRB No. 82
584
TUBE TURNS
ment. His efforts did not go unnoticed for, as coworker
Derrill Barnickle testified, third-shift Foreman Eric For-
rester commented that Webster was a good mechanic but
"the problem I have got with him is his mouth." Forres-
ter also told another mechanic, John Montgomery, that
Webster was involving himself in matters that did not
concern him.
The severance petition was filed with the Board's Re-
gional Office on March 28, 1980. Several weeks later the
Respondent learned that Webster was one of a handful
of employees subpenaed by the Government to appear as
a witness at the hearing on the petition. During the
course of this hearing on April 20 and 21, it became ap-
parent to several management officials that Webster was
a principal actor in the drive for severance. By decision
and order of May 30, 1980, the Regional Director denied
the petition.2 Approximately 1 month later, an article ap-
peared in the local newspaper which described the sever-
ance drive and characterized Webster's role in it as that
of underdog. This article found its way into Webster's
personnel file.
Webster was a key figure in several other proceedings
which posed legal challenges to the Respondent. In
April 1980, he was the named petitioner in an action
filed in a Kentucky state court which sought to enjoin
the Respondent from assigning maintenance employees
to work in certain areas without the aid of maintenance
helpers. The case was dismissed for lack of jurisdiction
on May 8, 1980. Then, in July, Webster's name was
joined as a discriminatee in a charge previously filed
with the Board alleging harassment of the maintenance
mechanics by assigning them to perform dangerous
duties without assistance because of their involvement in
the severance movement. Subsequently, the charge was
withdrawn, but while it was under investigation the
Board's agent and counsel in this case questioned several
of the Respondent's supervisors about statements they al-
legedly made to Webster.
Webster's final provocation came in a letter to the cor-
porate president dated July 15, 1980, in which he com-
plained about mismanagement and waste in subcontract-
ing out of maintenance work which he contended could
be performed more effectively in-house. This letter, like
the newspaper article, was inserted in his personnel
folder. 3
Contrary to the General Counsel's position, the Re-
spondent submits that Webster was terminated only after
an investigation disclosed that he had made substantial
misrepresentations on his employment application.
The Respondent's practice was to run reference
checks on applicants prior to offering employment. In
fact, the employment application contains a waiver in
which the jobseeker authorizes:
. . .investigation of all matters contained in this ap-
plication and agree(s) that if, IN THE JUDG-
MENT OF THE COMPANY, ANY MISREPRE-
SENTATION OR OMISSION HAS BEEN
MADE BY ME HEREIN OR THE RESULTS
2 Tube Turns, a Division of Chemetron Corp., Case 9-RC-13117
3 Richard Webster, et al. v Tube Turns Division of Allegheny Ludlum
Industries. Inc., 80-CI-03518 (Jefferson Circuit Court. KY)
OF SUCH INVESTIGATION ARE NOT SATIS-
FACTORY, ANY OFFER OF EMPLOYMENT
MADE BY THE COMPANY MAY BE WITH-
DRAWN OR MY EMPLOYMENT WITH THE
COMPANY MAY BE TERMINATED....
In the summer of 1979, the Respondent was expanding
its operations and its work force. Webster was hired
during this period together with 60 or 70 other new em-
ployees. Consequently, Ronald Rush, then manager of
staff personnel, authorized Ed Leslie, a junior personnel
officer, to offer employment without first making the
normal reference checks. Although Leslie was reminded
to go forward with this work on several occasions over
the next few months, he made no effort to review Web-
ster's background.
In February 1980, Elias Vaughn began to assume the
job duties previously performed by Rush, who, in turn,
took over Vaughn's position as manager of industrial re-
lations. During the transition period that occurred, Leslie
continued to delay performing the background checks.
Not until late February did an effort commence to exam-
ine Webster's references. At that time, while Kenneth
Crawford, Respondent's director of human resources,
was conferring with various plant officials in preparation
for a new round of collective-bargaining negotiations
with four unions representing separate groups of employ-
ees, several supervisors mentioned to him that Webster
was a troublemaker, someone who did not fit in and who
spent all his time talking on the job. Crawford noted
Webster's name and shortly thereafter requested Leslie
to check Webster's record and references. Leslie then
contacted Gates Rubber Company, the firm listed on
Webster's employment application as his previous em-
ployer, and learned that Webster had not quit in Septem-
ber 1979 as stated in his application, but left there 5
months earlier in May. Based on this discrepancy, Leslie
submitted a memo to Rush on March 25, 1980, recom-
mending Webster's immediate termination.
Believing that further verification was in order, Rush
directed Leslie to pursue the matter. However, not until
June, when negotiations for three of the four collective-
bargaining agreements were almost complete, did Leslie
advise Vaughn of his failure to complete the reference
checks. Having experienced some difficulty in contacting
the Gates firm in April, and because Tube Turns was
about to shut down for its regular 2-week layoff in July,
Vaughn referred the Webster investigation and a matter
involving another employee to a private investigating
firm, whose services he had used in well over 50 other
cases.
In the latter part of July, the investigator reported to
Vaughn that neither the post office nor the telephone
company had any information as to the existence of a
business or company under the name F. J. Webster, the
employer for whom the charging party claimed he had
served an apprenticeship during his employment from
1964-76.4 The investigator further determined that Web-
4 F. J Webster apparently 'as the Charging Party) father
585
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ster's academic and vocational credentials were not all
they appeared to be on the application. He did confirm
that Webster attended Jefferson Community College and
Bellermine College for one semester. 5 However, the in-
vestigator was unable to obtain verification that Webster
attended or completed courses as he had reported, in
welding, blueprint reading, pipefitting, and plumbing at
the trade school run by the Elizabethtown, Kentucky,
Community College.
Additionally, the investigator advised Vaughn that
Webster had a record of several arrests although he
denied having "been involved in a criminal proceeding
as a defendant" on the employment form.
At the conclusion of the plant shutdown, Vaughn also
attempted to verify some of the information Webster fur-
nished. First, he contacted Robert Niles, industrial rela-
tions director at Gates Rubber. In a memo dated July 24,
1980, summarizing his conversation with Niles, Vaughn
confirmed that Webster quit Gates in May; that contrary
to Webster's contention, he was a class B, not as he al-
leged, a class AA mechanic, having failed the exam for
the higher classification, and that he had not served an
apprenticeship program with Gates, for none was offered
there. Further, Vaughn learned from Niles that Webster
listed a period of employment with the Coca-Cola Com-
pany, which he had omitted from the employment appli-
cation filed with the Respondent. 6
Vaughn next called an unnamed personnel official at
Coca-Cola who informed him that Webster was em-
ployed there as a service department repairman from
September 1976 until February 1977. Coca-Cola termi-
nated Webster after determining that he had falsified his
employment application by listing longer periods of em-
ployment with some companies for whom he had not
worked and claiming academic credentials which he had
not attained. During this same week, Vaughn discovered
that Webster had failed to mention a prior period of em-
ployment with Tube Turns in 1966.
On the basis of this information, gathered for the most
part in the last week of July, Vaughn and Rush agreed
that Webster should be terminated when he returned
from a disability leave taken after he was injured on the
job a month earlier. As Rush explained, company policy
dictating discharge for falsification of an employment ap-
plication was predicated on a:
. . . multitude of reasons, one of which, if he falsi-
fied his application, he can very well falsify some-
thing else. Secondly, if he falsified things dealing in
elements of safety, we may find an unsafe employee
with a high liability on our hands. If he falsified his
application with regard to his background as to
s Webster represented he attended Bellermine from 1965-66 and the
Jefferson Community College from 1966-67. These dates convey the in-
correct impression that Webster was enrolled at these schools for an
entire year. However, if each semester terminated in January, then it is
possible that these dates were accurate.
6 Niles testified at the hearing that he did not recall telling Vaughn
about Webster's prior employment with Coca-Cola. However, I conclude
that he must have done so since this information, with other data which
Niles admittedly related to Vaughn during their telephone conversation,
was concluded in Vaughn's memo written contemporaneously with the
call.
training and we put him out on a critical job, all by
himself as a journeyman, a maintenance mechanic
may very well . . . he may create quite a problem.
And we're talking about millions of dollars in terms
of rather large equipment. Rather sophisticated
equipment in some cases.
The record shows that the Respondent invoked this
policy on several occasions both prior and subsequent to
Webster's dismissal. Thus, in 1974, an employee, whose
excessive absenteeism led to an investigation of her refer-
ences, was terminated when it was discovered that she
had invented a prior period of employment. In the same
year, another employee, Roosevelt Hurley, was dis-
charged for the same cause. Three other employees were
discharged for falsification of other company records.
When Webster returned to work on August 13,
Vaughn and Rush advised him orally and by letter that
he was being discharged because of the "significant
misrepresentation(s) and/or omissions, particularly in the
areas of education and training and past employment" in
his application. When provided an opportunity to ex-
plain, Webster insisted that he had expressly prohibited
any contract with his prior employer, that he had never
before worked for Tube Turns, and had omitted men-
tioning his employment with Coca-Cola because it was
only part time and he still was working there.
Contrary to at least one of these assertions, the Re-
spondent had records documenting Webster's previous
employment with Tube Turns. In fact, his termination
paper contained a supervisor's comment that he would
not recommend Webster for rehire based on his perform-
ance. Nevertheless, Vaughn suggested to Webster that if
he obtained proof to support some of the information in
his application, the Company might reconsider its termi-
nation decision.
Unfortunately, at his grievance hearing in August,
Webster made matters worse by presenting certificates of
attendance in four courses ostensibly offered by the Eli-
zabethtown trade school which management determined
and Webster admitted were fraudulent. Webster did
obtain a letter dated August 19, 1980, from the principal
of the Elizabethtown vocational school which explained
that while there was no record of Webster having par-
ticipated in its full-or part-time instructional programs,
several persons recalled that he was enrolled in a short-
term blueprint reading and pipewelding course offered
by a local industry utilizing the school's facilities when it
was not in session.
At the hearing in this matter, Webster tried to excul-
pate himself further by stating that he had taken courses
in plumbing, welding, and pipefitting offered by a local
union, that, although he had not listed his prior employ-
ment with Tube Turns, he had brought it to the attention
of his supervisor, and repeated his assertions that he left
Gates as a class A mechanic and omitted his employment
with Coca-Cola because it was a part-time job. He also
denied having ever filed a workmen's compensation
claim. However, the Respondent produced a document
which indicated that Webster worked a 40-hour week
for Coca-Cola and left there in 1976. Moreover, the Re-
spondent adduced testimony from Niles, industrial rela-
586
TUBE TURNS
tions manager at Gates Rubber who confirmed much of
the information he previously related to Vaughn includ-
ing the fact that Webster went from a grade C to no
more than a grade B mechanic and did not participate in
an apprenticeship program. Further, the Respondent pro-
duced evidence that Webster had indeed filed a claim for
workmen's compensation benefits.
Discussion
A resolution of the issue in this case, that is, whether
Webster was terminated for his protected concerted ac-
tivities or for testifying under the Act, fits precisely into
the analytic framework set forth in Wright Line. a Divi-
sion of Wright Line, Inc., 251 NLRB 1083 (1980). There,
the Board stated that where both legitimate and wrong-
ful motives exist for an employer's imposition of disci-
pline upon an employee, the General Counsel bears the
burden of making a prima facie showing that on the
record as a whole the protected conduct of the dis-
charged employee was a factor in the employer's deci-
sion. Thereafter, the burden shifts to the employer to
demonstrate by a preponderance of the evidence that it
would have taken the same action even in the absence of
the employee's protected conduct. Id. at 1089. Accord,
Limestone Apparel Corp., 255 NLRB 722 (1981).
Here, the General Counsel has produced ample evi-
dence that the Charging Party was engaged in a number
of protected concerted activities which could not help
but create friction between him and the Respondent.
Within months after he began working for Tube Turns
he was filing more grievances than other employees in
his unit. The uncontradicted testimony of shop steward
Wirth that management purposely delayed processing
these complaints establishes at the very least, that Web-
ster's zealousness was viewed with disfavor.
By February when Webster had begun agitating for a
separate union for the maintenance mechanics, he was
identified by several supervisors as a troublemaker, a fa-
miliar euphemism for one who is engaged in unwelcome
labor activity. Although there is no concrete proof that
Crawford knew of Webster's role in the severance effort,
the supervisors' comments to him were sufficient to trig-
ger an inquiry into Webster's background. The General
Counsel submits, and I am inclined to agree, that the
provocation for the investigation and its timing, some 6
months after Webster was hired, casts suspicion on the
legitimacy of the Respondent's motives in pursuing Web-
ster's credentials at that time.
By mid-April, the Respondent certainly knew of Web-
ster's leadership role in the severance campaign and con-
tested that effort as well as the challenge in a Kentucky
state court to its work assignment practices. None of
these actions was likely to endear Webster to the Re-
spondent. To make matters worse, in July, Webster (1)
was joined as a discriminatee in a charge filed against the
Respondent with the Board; (2) was cast into a heroic
role as the spokesman for the severance drive; and (3)
was author of a letter to the Company's president criti-
cizing local management for waste and inefficiency. In
August, several of Respondent's officials were questioned
by a Board agent about statements purportedly made to
Webster, thereby revealing that he had supplied informa-
tion to the Board. After all this, it is not difficult to
imagine the Respondent's displeasure with Webster's in-
cessant nipping at its heels.
Given the persistence and visibility of Webster's con-
certed activities, taken together with the curiously belat-
ed timing of the inquiry into his background and his oth-
erwise satisfactory performance on the job, I conclude
that the General Counsel has met the burden of proof
requisite for a prima facie showing of a discriminatory
discharge. However, an evaluation of the record as a
whole compels the further conclusion that the Respond-
ent has satisfied its burden; it has shown by a preponder-
ance of the evidence that Webster's dismissal would have
occurred in any event, once it was determined that his
employment application was riddled with serious distor-
tions and omissions.
Although, as noted above, some suspicion attaches to
the reasons which initially prompted the Respondent's
probe of Webster's credentials, I do not find that this
tainted the entire investigation or its results.
It is undisputed that the Respondent's failure to inves-
tigate Webster's background prior to an offer of employ-
ment was a departure from its normal practice, caused
by exceptional circumstances. However, the General
Counsel made no attempt to show that the Respondent
abandoned its practice or that it would not have, at some
other point in time, begun an identical inquiry. More-
over, there was no evidence that Leslie was given any
reason for examining Webster's record or encouraged to
conclude his investigation with a recommendation for
discharge. Rather, after determining that the information
in the application was false, Leslie apparently made an
independent judgment that discharge was appropriate in
accordance with company policy.
The Respondent could have terminated Webster im-
mediately. Instead, it decided to pursue the matter. Even
if its restraint was due to Webster's involvement in the
severance movement, the Respondent cannot be faulted,
for, "In such circumstances prudence would constrain
any employer to exercise caution, and to defer precipi-
tate action...." LB. Darling Division of Idle Wild
Farms. Incorporated, 254 NLRB 691, 694 (1981).
On discovering that Webster misrepresented the date
he quit his previous job and left a gap of 5 months in his
recent employment history, it was natural for the Re-
spondent to wonder what he was attempting to conceal.
Therefore, I find nothing sinister in the Respondent's ef-
forts to probe Webster's application in great depth. Once
the door was opened, the Respondent discovered that
the statements on that application bore only a marginal
relationship to the truth.
Thus, in Vaughn's conversation with Niles, he discov-
ered that Webster was a class B rather than a class A
mechanic at Gates Rubber and that he had not served an
apprenticeship there. Such disclosures furnish ample jus-
tification for the Respondent's doubts as to Webster's
qualifications as a class I mechanic at Tube Turns, for
even if he performed adequately in the past, there was
no assurance he would do so in the future.
As if this were not enough, Vaughn discovered more:
Coca-Cola had discharged Webster for falsifying his job
587
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
application, although he had been employed there for a
year. This suggests that the Respondent was not unique
in penalizing Webster for the same reason after a similar
lapse in time.
Although the General Counsel contends to the con-
trary, the record shows that the Respondent made dili-
gent and extensive efforts to locate F. J. Webster. When
its efforts proved unsuccessful, the Respondent was le-
gitimately concerned since the Charging Party claimed
that he had served part of his apprenticeship with this
employer. If F. J. Webster was a bona fide business
headed by the Charging Party's father, as he claimed, it
is difficult to understand why he failed to produce a
single witness or any documentation corroborating his
employment there. By failing to furnish any real evi-
dence supporting his claims when such documentation
should have been within his possession, an inference
arises that such evidence does not exist.
Respondent further determined that Webster's voca-
tional training and educational background were almost
as bogus as his employment experience. When confront-
ed by the Respondent with the frequency of his repre-
sentations about courses allegedly taken at the Elizabeth-
town vocational school, Webster's response was to pro-
duce forged cards which he characterized as merely
being altered.7 Even if I accepted Webster's character-
ization, it does not diminish his propensity for deceit.
The General Counsel claims that the Respondent's
resort to a private investigator was so unusual as to
expose its discriminatory purpose. I disagree. Although
reliance on a private investigator was not commonplace,
neither was it unprecedented as the record plainly
shows. The General Counsel further urges that the Re-
spondent's policy with respect to discharge for falsifica-
tion of records was invoked previously in circumstances
so distinguishable from those attending Webster's termi-
nation as to demonstrate that he was treated in a dispa-
rate manner. This argument is equally unconvincing for
variations in the factual circumstances surrounding dis-
missals are more the rule than the exception. More to the
point is that Webster's misrepresentations were far more
egregious than those of the other employees discharged
on the same ground. Finally, the General Counsel urges
that the reason assigned by the Respondent for the dis-
missal is pretextual in light of Webster's competent job
performance. In so doing, the General Counsel fails to
credit an employer's legitimate apprehension that lack of
adequate training may result in deficient performance for
which it may be held liable. Moreover, an employer is
entitled to ferret out from its midst a thoroughly dishon-
est employee, even if he happens to be proficient at his
tasks. Given the abundant evidence of Webster's deliber-
ate misrepresentations, the Respondent could hardly con-
tinue him in its employ, for to do so would be to con-
7 At the hearing, Webster admitted that he "altered" the cards because
Gates would not relinquish the originals to him, thereby implying that
these cards duplicated the ones which were in Gates' file. However, in
fabricating these cards, he assigned a completion date to a course in
welding at a time when he was no longer employed by Gates and offered
grossly exaggerated hours of attendance Further, when it became appar-
ent that neither Gates nor the vocational school would verify his attend-
ance at a course in plumbing, he suddenly recalled that he tlook this sub-
ject under the auspices of a local union
done such conduct and make it exceedingly difficult to
insist thereafter on honesty from its other employees.
That Webster was deeply involved in concerted activi-
ties ought not to shield him from adhering to the same
standards imposed on other employees. In these circum-
stances, I conclude that the Respondent discharged him
for good cause.
Even after advising Webster of the grounds upon
which his dismissal rested, he still had an opportunity to
clear himself during the processing of his grievance.
Rather than righting matters, he compounded them by
generating fake cards certifying attendance in vocational
courses. At the hearing he continued to fabricate a ficti-
tious past. Thus, he flatly denied having filed a work-
men's compensation claim and asserted he was employed
at Coca-Cola part time, when the record established the
contrary. In the final analysis, Webster succeeded only in
proving that he was a totally untrustworthy employee
and witness.
The Respondent may have welcomed the opportunity
to fire Webster. Nevertheless, even where an employer
may wish to dispense with an employee whose protected
activities have made him an anathema, a subsequent dis-
charge may not be discriminatory if the employee
obliges the employer by providing a valid, independent
reason for the discharge by engaging in conduct for
which he would have been terminated in any event. See
Klate Holt Company, 161 NLRB 1606, 1612 (1966); An-
derson-Rooney Operating Company and Ninth and Detroit
Building Corporation, 134 NLRB 1480, 1495 (1961).
Although the General Counsel has presented some cir-
cumstances in the present case which tend to cast doubt
on the legitimacy of the Respondent's asserted motive,
the Respondent has succeeded in surmounting these
doubts by a preponderance of the evidence that Web-
ster's discharge in August 1980 would have occurred in-
dependently of his involvement in concerted activity.
Accordingly, I shall recommend dismissal of the allega-
tions in the complaint that the Respondent violated Sec-
tion 8(a)(1), (3), and (4) of the Act.
CONCI USIONS OF LAW
1. The Respondent, Tube Turns, a Division of Cheme-
tron Corporation, is an employer within the meaning of
Section 2(6) and (7) of the Act.
2. The United Steelworkers, AFL-CIO, representing
the production and maintenance employees at the Re-
spondent's Louisville, Kentucky, facility, including those
employees who sought severance from the unit in Case
9-RC-13117, is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent has not engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1), (3), and (4),
as alleged in the complaint.
588
TUBE TURNS 589
4. Upon the foregoing findings of fact, conclusions of
law, and upon the entire record in this proceeding, and
pursuant to Section 10(c) of the Act, I hereby issue the
following:
ORDER
It is hereby ordered that the complaint be, and it
hereby is, dismissed in its entirety.
hIn the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings. conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations. he adopted by the Board and
become its findings, conclusions. and Order. and all objections thereto
shall be deemed waived for all purposes