Claborn American, Inc.

National Labor Relations Board - Board DecisionsApr 12, 1973

202 N.L.R.B. 1086 (N.L.R.B. 1973)

1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Claborn American , Inc. and Motor City Mechanics I would therefore limit the remedy to require only Lodge No. 698, International Association of Ma - that he be accorded preferential hiring status on and chinists and Aerospace Workers , AFL-CIO. Case after such time as he may once again be licensed to 7-CA-9493 drive under the laws of the State. April 12, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On November 10, 1972, Administrative Law Judge Bernard Ness issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions 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 authority in this proceeding to a three-member panel. The Board has considered the record 1 and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,2 and conclusions of the Administrative Law Judge and to adopt his recommended Order.3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, Claborn American, Inc., Detroit, Michigan, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order. CHAIRMAN MILLER, dissenting: I disagree with my colleagues only with respect to the remedy. On the merits, the case turns essentially on credibility issues. While the record reveals that those issues are not free from doubt, I do not find sufficient basis for reversing the Administrative Law Judge's determinations. But I do not believe that we can, or properly should, order the reinstatement of Willie Thomas. Wholly apart from the issue of whether Respondent initially determined to discharge him because of his loss of his driver's license, both Respondent and we now know that he has lost it, and that he is thereby incapable of lawfully performing driving duties. It is undisputed that the duties of his classification require considerable driving of cars.4 It is, therefore, neither legally nor practically sound to require his reinstatement to that classification at this time, nor to award backpay for a period during which he could not have lawfully performed the duties of his job. 1 As the record and Respondent 's brief adequately present the positions of the parties , Respondent 's request for oral argument is hereby denied. 2 The Respondent 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 respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). We have carefully examined the record and find no basis for reversing his findings. 3 We note that our dissenting colleague would limit the remedy and require only that Willie Thomas be accorded preferential hiring status on and after such time as he regains his driver 's license . We believe our colleague has not given sufficient weight to several important facts. Thus, on October 21, 1971, Thomas ' driver's license was suspended for a year as a result of an accident in his private automobile . Thomas immediately notified Respondent of the suspension ,. at which time Respondent's general manager , Norbert Dueck , stated, "Well , we're going to let you stay on because you do pretty good work...... Thomas was told to perform all of his regular duties except for driving customers back and forth to their homes and checking in cars at the Six Mile Road location. All went well until November 16, 1971, when, during the course of the union campaign , Dueck asked Thomas whether he had signed a union card. Thomas admitted that he had. The very next day, Al Holden, Respondent's department manager, told Thomas to drive a customer's car to the bump shop, thus requiring Thomas to drive a short distance on the public streets. Immediately upon driving away from the curb, Thomas was stopped by an unmarked police car and arrested . Upon his release from jail, Thomas was discharged by Respondent, allegedly because Thomas was of no further value to Respondent without a driver 's license. In view of the foregoing , in particular the fact that the suspension of Thomas' driver's license was of no consequence to Respondent until it had learned that Thomas had signed a union card , and in light of the fact that Thomas has other nondriving duties, we see no valid reason to limit our remedy as our colleague suggests . Furthermore, we note that the 1-year suspension of Thomas' driver's license has now expired. 4 The majority opinion tends to leave the impression that Respondent had, on October 21, 1971, kept Thomas in its employ to perform only nondriving work . Rather, the record shows that , when Thomas first incurred a suspension of his license, Respondent kept him on, but continued to .permit him regularly to drive the short distances from the service garage to the parking lot and to the bump shop. It was in the course of just one such trip that Thomas was picked up by the police and thereafter prosecuted for driving without a license . It seems apparent, therefore , that while Respondent once thought it could continue Thomas in its employ and evade the law by assigning him regularly to short trips when his lack of a license might not be detected , it has now learned its lesson in this regard . There is no showing whatever, in the record, that Thomas can effectively be utilized in performing services requiring no driving at all. I assume my colleagues are not suggesting that he be reengaged in the hope that Respondent will be more successful in evading the law a second time. DECISION STATEMENT OF THE CASE BERNARD NESS , Administrative Law Judge: This pro- ceeding was heard before me in Detroit , Michigan, on August 24-25, 1972, pursuant to charges filed on April-27, 1972, and complaint issued on June 1 , 1972. The basic issues were whether or not Respondent violated Section 8(a)(1) and (3) of the National Labor Relations Act through the discharge and refusal to reinstate Ernest and Willie Thomas. - Concurrently with the filing of its answer to the complaint , Respondent filed a motion to dismiss the complaint . Counsel for the General Counsel filed an opposition to the motion . The thrust of the motion was that 202 NLRB No. 157 CLABORN AMERICAN, INC. the Decision of Administrative Law Judge Samuel Ross, issued on May 23, 1972, in Case 7-CA-9107 was res judicata of the issues raised in the instant case. The Respondent , in its motion , also raised questions of estoppel and laches. On July 25, 1972, Associate Chief Administra- tive Law Judge Harold X. Summers issued an order, denying said motion. The motion to dismiss, General Counsel's opposition, and Associate Chief Administrative Law Judge Summers' order appear in the exhibit file as General Counsel's Exhibits 1(f), (g), and (i), respectively. All parties appeared at the hearing and were afforded full opportunity to be heard and adduce relevant' evidence. Briefs have been received from General Counsel and Respondent and have been considered. In Case 7-CA-9107, Administrative Law Judge Ross found that the Respondent had committed certain inde- pendent violations of Section 8(a)(1) and had unlawfully discharged three employees, Glycie Redmond, Robert L. Brown, and Ernest Woodward. No exceptions were filed and, on August 17, 1972, the Board issued a short form order adopting Administrative Law Judge Ross' findings, conclusions, and recommended Order. At the commencement of the hearing before me, I informed the parties I would take official notice of the Board's Order in the prior case, issued the previous week, and considered myself bound by the findings and conclusions of Administrative Law Judge Ross, as adopted by the Board. Respondent's counsel objected to the taking of official notice of the prior proceeding on grounds of hearsay and relevancy-that the issues raised in the prior case were not involved herein. Moreover, Respondent contends lack of due process because of my failure to announce at the commencement of the hearing what findings of violations in the prior case I would consider relevant in the present case. I explained to the parties that, until a full record was made herein and I had an opportunity to examine the complete record, no predeter- mination would be made as to the relevancy of any of the violations found in the prior case . It should be noted that both counsel for General Counsel and Respondent were the opposing advocates in the earlier proceeding. Respondent's counsel, in his brief, reiterates that the decision in Case 7-CA-9107 is not relevant; that it dealt with issues and facts not present in the instant case, and that issues in that case are closed . Although the issues in the present case are limited, i.e., were the discharges of the Thomas brothers, or either of them, unlawful, the findings of the unlawful conduct made. in the earlier case may appropriately be considered as substantial evidence, as well as background,) in determining the legality of the specific discharges herein, particularly because, in point of time, the conduct in both cases occurred over a period of 8 days. Thus, they are deemed relevant to, but by no means conclusive as to the issues of whether the Respondent was influenced in whole or in part by antiunion considerations in effecting the discharges of the Thomas brothers. I N. L. R. B. v. Harrah's Club, 403 F.2d 865 (C.A. 9), remanding on other grounds 158 NLRB 758; N.L.R.B. v. American Art Industries, 415 F.2d 11223 FINDINGS OF. FACT 1087 1. THE BUSINESS OF THE RESPONDENT The Respondent, a Delaware corporation, maintains its office and place of business in Detroit , Michigan , where it is engaged in the retail, sale, and distribution of new and used automobiles, and automobile parts and in the rendering of automotive service . During the year ending December 31, 197.1, a representative period, Respondent's gross revenue derived from its retail sales exceeded $500,000. For the same period, Respondent purchased and received at its location in Detroit , Michigan, directly from points outside the State goods valued in excess of $50,000. On the foregoing admitted facts , the Respondent concedes , and I find , that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent admits, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Preliminary Statement and the Prior Proceeding The complaint alleges the Respondent 's unlawful dis- charges of Ernest and Willie Thomas on November 18 and 23, 1971, respectively ,2 because of their activities in behalf of the Union . The Respondent 's defense is that Ernest Thomas was discharged for violating company policy by punching out Willie Thomas ' timecard and Willie Thomas was discharged because he had been arrested by the Detroit police for driving without a driver 's license and was no longer of any value to Respondent as a porter. The following findings, relevant to the instant case, were made by the Board in Case 7-CA-9107. On November 15, 1971, shortly after the inception of ,the Union's attempts to organize the Respondent's garage and service department employees , Respondent unlawfully discharged three em- ployees, Glycie Redmond, Robert Lewis Brown, and Ernest Woodward in violation of Section 8(a)(3) of the Act because they engaged in union activity. The Board further found that employees were unlawfully interrogated con- cerning their union activities by General Manager Norbert Dueck on November 15 and 16 and that President Harold Claborn on November 19 threatened to close the business if the Union became the bargaining representative. Ernest Thomas had been unlawfully interrogated by Dueck on November 15 and Willie on November 16. B. The Discharge of Willie Thomas 1. The General Counsel's case Willie Thomas had been employed from April 1971 until his discharge on November 23 as a porter in the service department under Al Holden , the department manager. His brother , Ernest, of whom there is more below , also was employed in the service department as a porter during this (C.A. 5). 2 All dates referred to hereinafter are in 1971. 1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD same period. Respondent also employed two other porters, one each in the used-car and bump (body) shop, respec- tively. Willie and Ernest Thomas worked under the direct supervision of Al Holden. The other two porters received their orders from their respective department managers. Although the porters normally received their orders from their respective managers, occasionally they performed work for other departments, as needed. The duties of the service department porters included cleaning of new cars, cleaning of the department premises, checking in new cars, taking customers home and bringing their cars back to the shop for servicing, moving cars between the service department and the customer lot or bump shop, and running errands to other places such as the Six Mile Road lot, the Secretary of State's office, or the American Motors headquarters. On October 21, Willie Thomas' driver's license was suspended for a year as a result of an accident in his private car. He testified that immediately after his license was suspended, he told General Manager Dueck that he had lost his license for a year and showed him the court order which disclosed this information. (G. C. Exh. 3.) Dueck looked at the court order and told him, "Well, we're going to let you stay on because you do pretty good work, but there will be no transferring of customers back and forth home and no more checking in cars at Six Mile." At this juncture, it is appropriate to describe Respon- dent's physical properties. The sales and service depart- ments are located at 20255 Grand River, on the west side of the street. The first intersecting street to the north is Kentfield. The service department entrance is located on Kentfield. Across the street from the service department entrance, on Kentfield, is the used-car lot. Beyond the used-car lot and further north on Grand River is the new car lot. The next street north of Kentfield, also running in an easterly-westerly direction, is Stout Street. The bump shop is located on Stout Street near Grand River. Willie Thomas testified that after his license was suspended, he continued to perform all the duties previous- ly performed except for driving vehicles away from the Respondent's physical properties. Thus, he continued to take cars to and from the garage to the customer parking lot and to and from the bump shop. This of course meant that he continued to drive on the public street for at least one block. As previously found by the Board, on November 16, the day- following his discharge of Redmond, Brown, and Woodward, General Manager Dueck coercively interrogat- ed Willie Thomas whether he signed a union card and, Willie admitted he had done so. The last day Willie Thomas worked was November 17. He testified that in the late afternoon he was told by Holden to get the keys from up front and to move a customer car from the curb on Grand River by the service and sales departments to the bump shop located on Stout Street. As he pulled away from the curb on the public street, an unmarked police car followed him, so he drove around the corner and, into the service garage. Upon disclosure to the police that he did not have a driver's license , he was arrested and taken to the precinct . He later received a sentence of 5 days and a $50 fine. He was released the afternoon of November 22. Upon reporting. for work the morning of November 23, he noted his timecard was not in the rack. He asked Al Holden whether or not he was still employed. Al told him he did not know; he should come back later and talk to Dueck. He returned later and approached Dueck on the sales floor. At that point, Claborn came up and told Willie to turn in his uniforms and pick up his check at the cashier counter. Testimony was adduced by the General Counsel through DeVere Boyd which makes suspect the circumstances under which Willie Thomas was arrested . by the Detroit police on November 17. Boyd, during the relevant period herein , had been the used -car manager and had also testified in the hearing in Case 7-CA-9107. Called as a witness for the General Counsel in the present case, Boyd testified that on November 17, in the early afternoon, two policemen in an unmarked car came to the parking lot. One policeman asked him if he knew Willie Thomas and then inquired where Claborn could be located. Immediate- ly upon their departure, he called Dueck over the Terry phone (a public address system connecting the various departments) and told Dueck the police were on their way to the office to see Claborn about Willie Thomas. Shortly thereafter, according to Boyd, Claborn called back over the Terry phone and told Boyd not to say anything to anyone that the police were looking for Willie. Both Dueck and Claborn deny these conversations. The Respondent called William Crawford , the arresting officer , as a witness. Crawford testified that he came on duty at 3 p.m. and that he had not been at the used-car lot earlier that day. Nor had he seen or spoken to Boyd. His testimony revealed that he had been on routine patrol when he picked up Willie. He testified that because of the manner in which Willie pulled out in front of him from the curb, he signalled him down. Willie was then charged with operating a vehicle without a license , the more serious offense .3 Boyd also testified he had been told by Holden on either November 15 or 16 that he [Holden] had been told by Dueck to fire his porters because they signed union cards. Holden was called as a Respondent witness and , although he testified at length on other matters , he was not questioned as to this conversation . Boyd' s testimony , in this regard , stands uncontradicted. Boyd further testified that in the evening of November 17, after Willie had been arrested, Dueck told him Claborn had called the police to have Willie arrested while under suspension and he was being fired for this reason. Dueck denied such conversation. I credit Boyd regarding Holden's conversation with him on either November 15 or 16, described above, not only because it stands uncontradicted, but because it comports with the other events that took place at that time , the discharge of Redmond, Brown, and Woodward and the coercive interrogation . However, despite the suspicious circum- stances surrounding Willie's arrest , I am not convinced that Claborn conspired with the Detroit police. Under the 3 Although the General Counsel offered Boyd's testimony in this record does not support a finding that Officer Crawford was part of a connection apparently to show Respondent was setting Willie up for an conspiracy to cause Willie Thomas to be arrested for driving while under arrest , I find no basis for not crediting Crawford and, accordingly, the suspension. CLABORN AMERICAN, INC. circumstances, I am not persuaded that Dueck made the admission of unlawful motivation to Boyd on November 17 concerning Willie's discharge or that Claborn cautioned Boyd not to disclose that the police were looking for Willie.4 2. Respondent's asserted reasons for the discharge of Willie Thomas Respondent's counsel, in his brief, contends that Willie Thomas was discharged because he had been arrested by the Detroit police for driving without a license and was no longer of any value to Respondent as a porter. He states that Respondent's only mistake was in allowing Willie to drive an automobile, and that Willie's only mistake was in getting caught. I would agree that these two so-called mistakes by themselves do not add up to the unlawful motivation in effecting the discharge, but more appears in the record to be considered. According to Dueck's recollection, Willie told him the suspension was only for 2 or 3 weeks. He was not shown the court order which, on its face, showed the suspension was for 1 year. He conceded he told Willie he was a good man and could stay on, but he also told Willie he was not to drive company or customer cars on the public highways. Dueck testified he notified the other management officials of the suspension and that Willie was not to drive vehicles. Both Holden and Claborn acknowledged that they were told by Dueck of Willie's suspension but understood it to be only for a short time. Dueck stated on one or two occasions he caught Willie driving and reprimanded him but took no further action. Holden testified on direct examination that he had been told by Dueck that Willie was to do no driving, but, later in his testimony, this was somewhat diluted. He said Dueck told him, "That Willie had temporarily lost his license and that he was restricted to working in and around the building, and that he was not to be sent with customers or to the Secretary of State and so on which had been his regular procedure." As to whether anything else was said by Dueck, he responded, "No, to my knowledge." Neither Holden nor Dueck claimed responsibility for Willie's termination. Claborn testified the decision was his. He related that Dueck told him Willie had lost his license for about 2 weeks and he condescended to retain Willie because he was a good employee, but he was to do no driving. Claborn's reason for discharging Willie, in his words, were, "Well, Willie had no driver's license and due to the fact that he had been' picked up by the police and his license was revoked, I couldn't use him around there." 3. Conclusions as to discharge of Willie Thomas Respondent's witnesses attempted to show, as described above, that Willie was prohibited from driving cars at all on the public streets and that Willie was told of this restriction. I do not agree this to be the fact. I credit. Willie's version of the instructions received from Dueck, limiting the restriction to areas away from the immediate environs of the Respondent's physical properties. As he 4 To the extent that Boyd's testimony is credited only in part, it is done upon the evidentiary rule that it is not uncommon to believe some, if not 1089 testified, he continued to drive cars between the service shop, the bump shop, and the car lot without any objection from supervision. I do not credit Dueck's testimony that he caught Willie driving on one or two occasions and reprimanded him. I find it difficult to believe that Willie, who appeared to be a credible witness, and as Respondent concedes, a good employee, would have driven the cars without authorization from a supervisor, as reflected in the events of November 17. If Dueck had objected to Willie driving when he allegedly caught him, he likely would have reprimanded the supervisor who gave him the instructions or, at the very least,-asked Willie if anyone had given him permission to drive. Nor-would he have permitted Willie to move the car on November 17. Holden, in relating the events of November 17, initially testified that to the best of his knowledge, he did not give orders to Willie to move the car. But, later in his testimony, he said Dueck told him a car at the curb in front was to be moved to the bump shop. He called for a porter on the public address system. When the porter appeared, he told him what had to be done and sent him to Dueck for the keys. Grudgingly, he conceded that Willie was the porter who appeared. If in fact Willie was prohibited from driving, Holden, who, was aware that the job required driving on the public street, would immediately have told Willie he was not the man for the chore when he appeared on the scene. Instead he was sent on to Dueck. He obviously was cleared up front also because he obtained the keys. Under the circumstances, I conclude that during the period of Willie's suspension while in Respondent's employ, he continued to drive cars between the service shop, the car lot, and the bump shop, and this under the authorization and direction of the supervisory hierarchy. Moreover, Willie could not have continued performing this part of his work without the knowledge of Claborn. But such finding is hardly diapositive of the basic issue of motivation. One sharp conflict in the testimony concerns the length of time of the suspension Willie reported to Dueck. Willie said he told Dueck it was for 1 year and showed him the court order. Dueck denies being shown the court order and recalls being told it was for 2 or 3 weeks. Respondent's counsel urges that it was very unlikely that Willie would have been kept for a period of 1 year as a porter without being able to drive cars. Between the two versions, I feel compelled to credit Willie Thomas and find he told Dueck the suspension was for 1 year and showed him the court order. This credibility resolution is based upon the pertinent testimony of the witnesses as well as their demeanor while testifying. It must be remembered that the Respondent employed three other porters, one of whom also worked in the service department, capable of driving cars any distance away from the immediate area. Moreover, Respondent intended that Willie continue driving in the immediate area, together with performing the various other duties related to the porter position. I must also note that Willie was considered a good employee. But, after his arrest, according to Respondent, he was of no further use. We then turn to the question whether, absent union considerations, Willie would have been retained all of a witness 's testimony ." N.L.R.B. v. Universal Camera Corp., 179 F.2d 749, 754 (C.A. 2). 1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD upon his return on November 23. Keeping in mind that three employees in the bump shop had been discharged on November 15; that Ernest Thomas was discharged on November 18, and that Respondent had engaged in coercive interrogation and threats within the last week,5 the motive for the termination of Willie becomes suspect. But suspicion itself is hardly sufficient to support a finding of unlawful motivation. On the other hand, despite valid reasons for discharge, if the exercise of such right is tainted with a discriminatory motive, a violation may be found .6 An interesting response was elicited from Dueck, on cross-examination, when asked how Willie was less valuable to Respondent on November 23 when he reported for work as compared to October 21, the date of the first notice received by Respondent of the license suspension. Dueck stated: In no way at all. Equally valuable on both days. But why was he. less valuable now? Because he had been arrested by the precinct just a block up the street. He had been told not to drive and went against my wishes, and therefore, I , obviously couldn't control the man. There was no insurance on a man driving a car without a driver's license. Such reasons do not ring true. As stated above, Willie Thomas was authorized by and continued to drive on the public streets within the immediate environs of the Respondent's physical properties. Such conduct was not against Dueck's wishes but, on the contrary, indicated Willie was in fact performing what he was told to do. It may be that Respondent's insurance did not cover Willie's driving during the suspension period, but this would have been true before as well as after his arrest. For all the foregoing reasons and the entire record, I am persuaded and find that Respondent's claimed reasons for the discharge of Willie Thomas were pretexts to veil the real reason for the termination, namely his union advocacy and Respondent's attempts to rid itself of union adherents because of its union animus.? I conclude that the discharge was in violation of Section 8(a) (3) and (1) of the Act. C. The Discharge of Ernest Thomas Ernest Thomas, like his brother, Willie, worked as a porter in the service department from April 1971 until his discharge on November 18. In Case 7-CA-9107, the Board found he was coercively interrogated by Dueck on November 15 as to whether he had signed a union card. Ernest admitted he had signed the card. Ernest Thomas was discharged on the morning of November 18. He had punched out his brother's, Willie's, timecard the previous evening. The General Counsel's position is that this incident served only as a pretext and the true reason was his union activity. Respondent, on the other hand, contends Ernest was discharged for violating 5 Case 7-CA-9107. 6 N.L.R. B. v. Murray -Ohio Mfg. Co., 326 F.2d 509,.517 (C.A. 6); N.L.R.B. v. Challenge -Cook Brothers of Ohio, Inc., 374 F.2d 147, 152 (C.A. 6). r Redmond , Brown, and Woodward on November 15; Ernest Thomas on November 18 (more about him below ), and Willie Thomas on November 23. Respondent introduced evidence to show that the six other employees whose names were furnished by the Union to the Respondent as being union adherents were not discharged for union activities . However, as we company policy with regard to punching other employees' timecards. It is undisputed that Ernest indeed punched out Willie's timecard the previous evening. Willie had been arrested by the police late that afternoon, somewhere between 4 and 4:30 p.m. Ernest testified that when he. finished work that day, he noticed that Willie's card was still in the rack. As related by Ernest, "So I punched my card out and then I took his and punched his out because he wasn't there. He was in jail. He had called me that he couldn't get out, so I just punched his card out too." The next morning he was told by Holden he was discharged. He said he didn't work at all on November 18. In this he was mistaken. The timecard introduced in evidence shows he worked most of Thursday morning, November 18. Both Ernest and Willie deny that they were ever accused of or warned about punching out another's timecard. Nor had either of them punched the other's timecard previously. Both normally came to work together and left together at the end of the work day. The testimony of Respondent's witnesses was presented to show that the Company had a rule against punching another employee's timecard and that infractions of this nature called for a discharge. Although Dueck disclaimed any participation in the decision to discharge Ernest, he testified that employees had been punching timecards of other employees and therefore, shortly after he became service manager in January 1970, "we may [sic] it a hard and fast rule that any employee that punched a card for another employee was automatically dismissed."8 Despite this alleged hard and fast rule in existence for almost 2 years, no disciplinary action was ever effected for infrac- tions until November 18. Dueck testified as follows, "Ernie and Willie use [sic] to punch each others timecards depending upon who came in first. The first man in the morning would punch the other man's card, and then the last one to leave at night punched the other man's card. In other words, if one man were to leave at five and the other one at five-thirty, he'd punch both cards." He went on to say he spoke to the Thomas brothers and other employees as well about infractions but didn't know of anyone violating the rule as much as the Thomas brothers. Despite all his testimony about this so-called rigid rule and his alleged knowledge of numerous infractions, particularly by the Thomas brothers, it was not until November 18 that the first disciplinary action-Ernest's I discharge-was taken for such offense. Holden testified he discharged Ernest. According to Holden, as a regular procedure he collects all the timecards on Thursday mornings .9 On this particular Thursday morning, November 18, he noticed both Ernest and Willie's timecards were punched out at the same time. To quote Holden's testimony, "I took the time cards up into have been repeatedly told, "... it is established that a discriminatory motive, otherwise established, is not disproved by an Employer's proof that it did not weed out all Union adherents." Nachman Corp. v. N.LR.B., 337 F.2d 421 (C.A. 7), citing N. L. R. B. v. Shedd Brown Mfg. Co., 213 F.2d 163, 174-175 (C.A. 7); N. L. R. B. v. Nabors, 196 F.2d 272, 276 (C.A. 5). 8 The Thomases did not begin their employment until more than a year later in April 1971. Dueck became general manager on May 1, 1971. 9 Wednesday night is the end of the pay period. CLABORN AMERICAN, INC. 1091 the office to Mr. Claborn and Mr. Claborn because of the company rule says you don't have anything to do but to fire Ernie, you know, for punching out the other time card." Thereupon Holden discharged Ernest. ,Initially in Holden's testimony on direct examination, he said he had warned Ernest about 1 month prior to this incident about punching another's timecard:10 He had also warned others about committing this infraction but no discharges were effected because such infractions were not repeated. However, on cross-examination, he said he warned Ernest at least twice regarding punching in someone else-this during the approximate 6-week period he was service manager. His testimony later in cross-examination was embellished with further revelation that both Willie and Ernest would take turns in punching the other's timecard. His testimony was that he would have discharged other offenders if he could have proved the act was committed, but all he had to go on was a strong assumption. Claborn's .testimony .is not in accord in significant respects to that of Dueck and Holden. Contrary to Holden's version that he had contacted Claborn regarding the timecards, Claborn testified that, about 10 or 10:30 on the morning of November 18, he asked Holden to bring in the timecards, "because I knew Willie had been picked up by the police and I wanted to look at his timecard to see what time he punched out." When he observed that Ernest's and Willie's cards were both punched out at the same time, "I told Al to check with him [Ernest] and he'd have to fire him." On cross-examination, with respect to company policy and its enforcement, Claborn testified as follows: Q. All right. With respect to Ernie, you made the decision on the eighteenth of November, right, the day after Willie was picked up? A. On the eighteenth. That's correct. Q. Have you ever previously personally given instructions that somebody should be fired for punch- ing out somebody else's card or having his card punched out by somebody else? . A. All department heads know that. As far as actually some concrete evidence, no, I have not had this happen before. Conclusions The issue boils down to a question of whether or not the termination of Ernest Thomas was because of his union activities and the fact that he had punched out his brother Willie's timecard served only a pretext for the termination. Ernest readily admitted to having punched out Willie's card. He knew that Respondent was aware Willie had been taken to the precinct more than an hour before and it seems apparent he was not attempting to falsify Willie's time. I am persuaded Respondent purposely examined both timecards, hopefully to find that Willie's timecard was punched out by Ernest, conscious of the manner in which Willie was forcefully taken from Respondent's premises the preceding afternoon. Discovering both cards were punched out at the same time, Respondent then invoked its so-called hard and fast rule for the first time as a basis for Ernest's discharge. I am convinced Respondent was looking for an excuse to terminate Ernest. Contrary to Holden's denial, I cannot believe he was unaware of the union membership of the Thomas brothers at that time. As service department manager, he must have been aware of the events that took place that week. Within the preceding 3 days, 3 employees had been discharged for their union activities, the 2 Thomas brothers admitted to Dueck they had signed cards and the Respondent had received letters from the Union, one requesting recognition, and the other naming 11 employees, including the Thomas brothers as "co-chairmen of our organizing committee." I do not doubt that Respondent did not look with favor upon employees who punched out other. employees' timecards. But the record shows that despite the existence of such rule, it was not a hard and fast rule calling for automatic discharge as Respondent would have it appear. Testimony of Respondent's witnesses was to the effect that other employees had committed such offenses, as did the Thomas brothers in the past. As to why no disciplinary action had ever been taken heretofore, Holden said all he had to go on was a strong assumption that the offenses were committed but no proof. Dueck likewise said it was a hard thing to prove. Claborn said no concrete evidence existed before. These reasons do not ring true and are given no credence. It is hardly likely, particularly in an unorganized facility as we have here with no contractual grievance procedure, that a supervisor who strongly believed an employee guilty of this offense would decline to take any action simply because of lack of concrete proof or of an outright confession of guilt. It is clear that Respondent's witnesses, with added strokes while testify- ing, attempted to paint a picture of the Thomas brothers as the most grievous offenders of the rule. Holden first said he warned Ernest one time previously; this was later changed to twice; and finally the point was reached in his testimony where he portrayed both. Thomases as. taking turns in punching the other's timecard. Then we have Dueck who expressed so much concern at violations of this nature' while he was service department manager that he an- nounced the rule in January 1970 calling for automatic dismissal for this offense. But yet he said violations continued and the Thomas brothers were the greatest offenders, punching the other's timecard in the mornings and in the evenings. Despite these continued infractions, no disciplinary action was taken against any employee until November 18. It will be remembered that Respondent retained Willie Thomas after his driver's license was suspended on October 21 because he was regarded by management as a good employee. It is unlikely he would have been considered a good employee if he, as well as Ernest, were derelict in punching timecards. I was more favorably impressed by the sincerity in which Ernest Thomas testified and credit his testimony that he had never punched another employee's timecard in the past and had never been warned about it.11 In. light of the foregoing, I am convinced and find when Respondent discovered Ernest Thomas had punched out 10 Holden was promoted from assistant service. manager to service 11 In this connection, I credit Willie Thomas' testimony to the same manager on about October 1. . effect. 1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his brother Willie's timecard, it seized upon this as a pretext to discharge him for his union activities. The object of this conduct was to discourage activity in behalf of the Union and violates Section 8(a) (3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact , conclusions of law, and the entire record , and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 12 The activities of the Respondent set forth above, occurring in connection with its interstate operations, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I will recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. As it has been found that the Respondent discrimina- torily discharged Ernest Thomas and Willie Thomas, it will be ordered to offer immediate reinstatement to their former positions or, if they no longer exist, to substantially equivalent positions, without. prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered in consequence of their unlawful discharges, by payment to each of them of a sum of money equal to the amount he normally would have earned from the date of his discharge to the date of Respondent's offer of reinstatement, less his net earnings during such period, to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Respondent shall also be required to make available to the Board or its agents, all necessary records to determine the amounts of backpay due. The Order shall also provide for the usual notice posting. Upon the foregoing findings of fact and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Ernest Thomas and Willie Thomas on November 18 and 23, 1971, respectively, and thereafter failing and refusing to reinstate them to their former positions because of their support for the Union, the Respondent has engaged, and is engaging, in unfair labor practices within the meaning of Section. 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor 12 In the event no exceptions are filed as provided by Sec. 102:46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. Respondent, Claborn American, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in and activities in behalf of Motor City Mechanics Lodge No. 698, International Association of Machinists and Aerospace Workers, AFL-CIO, or of any other labor organization, by discrimi- nating in regard to hire or tenure of employment or by discriminating in any other manner in regard to any term or condition of employment, in order to discourage membership or activities therein. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights to self- organization, to form labor organizations, to join or assist Motor City Mechanics Lodge No. 698, International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section. 8(a)(3) of theAct. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer to Ernest Thomas and Willie Thomas, immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges enjoyed, and make them whole for any loss of pay they may have suffered as a result of the discrimination against them as set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze and determine the amounts of backpay due under the terms of this Order. (c) Post at its service department and bump shop in Detroit, Michigan, copies of the attached notice marked "Appendix." 13 Copies of the notice, on forms provided by the Regional Director for Region 7, after being duly signed by an authorized representative of the Respondent, shall be, posted by the Respondent immediately upon receipt thereof, for a period of 60 consecutive days, in conspicuous 13 In the event that the Board 's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." CLABORN AMERICAN, INC. places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps the' Respondent has taken to comply herewith. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had the chance to give evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act, and we have been ordered to post this notice and carry out what it says. The National Labor Relations Act gives you, as an employee, these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a representa- tive of your own choosing To act together with other employees to bargain collectively or for other mutual aid or protection; and If you wish, not to do any of these things. Accordingly, we give you these assurances: WE WILL NOT do anything that interferes with any of your rights listed above. WE WILL NOT discourage union activity or member- ship in Motor City Mechanics Lodge No. 698, 1093 International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization by discriminating against you if you choose to engage in union activity or join that Union or any other union. Since it was decided that we violated the Act by discharging Ernest Thomas and Willie Thomas because they engaged in union activity, WE WILL offer them full reinstatement to their former jobs, and WE WILL pay them for any loss they suffered. WE WILL respect your rights to self-organization, to form, join, or assist any labor organization, or to bargain collectively in respect to terms or conditions of employment through Motor City Mechanics Lodge No. 698, International Association of Machinists and Aerospace Workers, AFL-CIO, or any representative of your choice, or to refrain from such activity, and WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of these rights. Dated By CLABORN AMERICAN, INC. (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concern- ing this notice or compliance with its provisions may be directed to the Board's Office, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan 48226, Tele- phone 313-226-3210.