Gates Rubber Co., Inc.

National Labor Relations Board - Board DecisionsNov 27, 1970

186 N.L.R.B. 837 (N.L.R.B. 1970)

GATES RUBBER COMPANY, INC. Gates Rubber Company, Inc. and Lithographers and Photoengravers International Union , Local 276, AFL-CIO. Case 27-CA-2812 November 27, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On May 22, 1970, Trial Examiner Samuel M. Singer issued his Decision in the above-entitled proceeding finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that the Respondent had not been engaged in other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision accompanied by a support- ing brief, and the General Counsel filed a brief in answer to the Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner,' except as modified below. The record establishes that employee Vandervort had risen from apprentice to journeyman, receiving appropriate wage increases, while in the Respondent's employ, and that he was, to the Respondent's knowledge, a leading union advocate. However, it also shows that he had been reprimanded on several occasions, once for noting he had made corrections on a job when in fact he had not. Thereafter, he was suspended for 2 days for insubordination in connec- tion with the redoing of a plate. He filed an unfair labor practice charge based on the suspension. Although the Respondent received a copy of the charge (which proved to be groundless), it took no action against Vandervort for filing it. However, Vandervort took the original and the remade plates 837 from the scrap bin and removed them from the plant without permission, knowing that a pass was required for removing plant property; he gave the plates to a Board agent as "proof" that his suspension had been without cause. When the Respondent learned of this conduct, it discharged Vandervort for theft. There is no evidence of disparate treatment; that the Respon- dent was hostile to the Union; or that it was motivated by discriminatory considerations. We cannot agree that the small monetary value of the plates justifies the conclusion that Vandervort would not have been discharged if he had not given them to a Board agent. The Respondent's explanation for the discharge was, in all the circumstances, a reasonable one. As there is no evidence of disparate treatment or discriminatory motive, the record does not support the conclusion that Vandervort was discharged for an unlawful reason. We shall therefore dismiss the complaint entirely. ORDER It is hereby ordered that the complaint be, and it hereby is, dismissed in its entirety. ' The Respondent' s request for oral argument is hereby denied as the record and briefs adequately present the issues and the positions of the parties TRIAL EXAMINER'S DECISION SAMUEL M. SINGER , Trial Examiner : This proceeding was tried before me in Denver , Colorado, on March 3 and 4, 1970, based upon a charge filed on October 8 and complaint issued on December 18, 1969 . The issue litigated was whether Respondent violated Section 8(a)(1), (3), and (4) of the National Labor Relations Act by discriminating in regard to the hire and tenure of an employee because of his Union sympathy and activities and his filing of unfair labor practice charges with the Board. All parties appeared and were afforded full opportunity to be heard and to examine and cross-examine witnesses. General Counsel and Respondent filed briefs. Upon the entire record ' and my observation of the witnesses , I make the following: FINDINGS AND CONCLUSIONS 1. BUSINESS OF RESPONDENT; LABOR ORGANIZATION INVOLVED Respondent, a Colorado corporation with principal office and place of business in Denver, Colorado, is engaged in the manufacture of rubber products. It annually ships to other States products valued in excess of $50,000. I find that at all material times Respondent has been and is engaged in commerce within the meaning of the Act. Transcript corrected by my order on notice dated April 17, 1970 186 NLRB No. 85 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Charging Party, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. The Facts 1. Vandervort's employment and Union activity The facts are essentially undisputed.2 Vandervort, the alleged discriminatee, was hired as an apprentice litho- graphic stripper in March 1968 and worked in the printing department under Leadman Mulhauser and Foreman Burke.3 He acquired "journeyman" classification on September 5, 1969, shortly before his 2-day suspension on September 9, 1969, for alleged insubordination (arguing with his superior concerning a job) and termination on October 7, 1969, for alleged misconduct (removing printing plates from Company premises without authorization)? Vandervort was given one "cost-of-living" and four periodic wage increases while an apprentice. He was reprimanded on several occasions in his approximately 18 months' employment-once for noting that he had made "corrections" on a job when in fact he had not. Vandervort was the Union's leading advocate in the printshop. It was he who in February initially contacted the Union. In March, he met in his home with 11 of Respondent's approximately 30 printshop employees. In May, he announced his prounion views to Foreman Burke who, however, already knew of them since they were a matter of common knowledge. (Burke himself had been "involved" in an earlier organizational drive of another union before he became a supervisor; as a matter of fact, Burke had attempted to sign up Vandervort in the other union some months before the Charging Party's drive.) 5 2. The 2-day (September 9-10) disciplinary layoff Around 7:30 or 8 p.m. on September 8, Leadman Mulhauser, in charge of the second shift,6 asked Vander- vort to redo a plate which was to be run on a press because, according to Mulhauser, the plate was "off register." Since Vandervort "didn't feel like the job was critical enough to ... remake the plate," he questioned Mulhauser's judgment. There ensued a "heated discussion" between the two for 10 or 15 minutes. Mulhauser telephoned his superior, Foreman Burke, "to find out ... what to do about it." The call to Burke "upset" Vandervort since (in Vandervort's words) "I felt we could have worked it out" without Mulhauser's consulting with Burke, and additional "words" were exchanged. When Mulhauser advised Vandervort that Burke agreed that the job was to be redone, Vandervort complied, but only after Mulhauser warned that he "either ... redo it or punch out." It took Vandervort 30 minutes to remake the plate-a task (he 2 At the end of General Counsel's case Respondent rested without calling witnesses. The findings herein are based primarily on Vandervort's testimony. 3 A lithographic stripper "strip(sI negatives to make offset plates for the press . . . a photographic process." 4 Unless otherwise noted, all dates hereafter refer to 1969. 5 Charging Party's organizational campaign culminated in a Board- conducted election on July 11, lost by the Union. Thereafter the Union filed objections and charges of Section 8(a)(1) violations , which were conceded) "fairly" easy. Vandervort also admitted that Mulhauser acted "within his area of responsibility" in directing him to redo the job. He further admitted that Mulhauser had advised him that the 19,000 or 20,000 copies "needed off the plate [in question ] could not be run with the usual accepted standards." At about 9 on the following morning (September 9), Foreman Burke called Vandervort at home and told him that after a discussion with Mulhauser, it had been decided to lay Vandervort off for 2 days as a "disciplinary action." When Vandervort remonstrated that the action "wasn't justified," Burke agreed to discuss the situation further. Vandervort reported the incident to Union Representative Lathrop, who suggested that he see Company Labor Relations Manager Pierce, which he did, but the latter advised him to "go through the proper channels" and first speak with McDonald, manager of the printshop. Later the same day, Vandervort saw McDonald, who asked him why he had "argued" with Mulhauser. Vandervort explained, "I just didn't like the way he called up Dave Burke about it, I felt it was just a way of telling Burke that I was giving him some trouble." To McDonald's inquiry whether he felt he was "being picked on," Vandervort responded, "I thought it was because of my union activities." McDonald pointed out that his union activities were of no concern to the Company and that the disciplinary measure could have been more severe. Vandervort then took up the suspension with Labor Relations Manager Pierce. After commenting that he was "up to his neck in the print shop," Pierce explained that Gates Rubber "is a union company [that has] had unions for 28 years . . . [and he] went on to tell all the cities they had union contracts in . . . trying to get across that [Vandervort] wasn't being laid off for union activities." Pierce added that there was nothing he could do about the matter except to suggest to McDonald and Burke that the layoff be reduced to 1 day. Pierce emphasized that the Company's only concern was that Vandervort "got into an argument with a supervisor . . . a leadman, as to doing a particular job." Pierce assured Vandervort that if he "could see the problem and recognize the error of [his] ways," Pierce would contact the department head about "reducing the suspension." Vandervort said that he wanted "the whole thing cut off or not at all." 3. The October 7 discharge The next day (September 10), Vandervort filed an unfair labor practice charge, alleging that his September 9 layoff was because of his Union activities. When the Board agent investigating the charge "wanted to know if [Vandervort] could show him some proof," Vandervort said that he could. Attempting to fulfill his promise to provide evidence, on consolidated for hearing . (Cases 27-CA-2750 and 27-RC-3634.) On April 23, the Board found some 8(a)(1) violations (withholding , and telling employees that it was withholding , wage increases because of the pendency of the Board election ; and reprimanding an employee for arranging a meeting with a Company agent to discuss employee complaints); based on these findings , the Board set aside the election and directed a rerun election . 182 NLRB No. 15. 6 Mulhauser's "responsibility" on this shift was "comparable " to that of Burke on the first (day) shift . Burke normally left the shop at 3:30 p.m. GATES RUBBER COMPANY, INC. the following day (September 11), Vandervort sought "a sample of thejob" involved in his suspension in the form of written copies of the work run off the plates in question. Finding none, he removed the discarded plates out of the "scrap" or "dead plate box" where such plates are normally thrown upon completion of the press run. It is clear that the great bulk of the used plates discarded in the scrap is not reused, although on occasion some are utilized in connection with other work.? After cutting two sections of the disputed plates (i.e., the rejected section of the off- register plate and the reworked section),8 Vandervort conveyed them out of the plant in his lunchbox and turned them over to the Board agent for use as evidence in this proceeding. He admitted that he did not receive advance permission from his Employer in doing so, in violation of a Company rule requiring a pass for removal of Company property.9 Respondent's first awareness of Vandervort's supplying the Board with the described evidence was on October 6, when during an interview with Company Labor Relations Manager Pierce in connection with investigation of the charge relating to his 2-day suspension, the investigating Board agent showed the plates to Pierce. On the following day (October 7) Printshop Manager McDonald questioned Vandervort about the removal of the plates. Vandervort did not deny the general necessity for permission to remove Company property and the possibility of reuse of the plates, and also that authorization could have been sought by him.io McDonald then told Vandervort that he was being suspended for "theft " Vandervort thereupon filed his second unfair labor practice charge here, this time alleging discriminatory discharge not only because of his Union activities but also in relation to his filing of the earlier charge concerning the 2-day layoff. On October 9, McDonald by letter advised Vandervort that he was being terminated for unauthorized removal and destruction of Company property and "appropriating [it] for [his] own purposes." B. Conclusions 1. Introduction The issue in this case-whether Vandervort's 2-day (September 9-10) suspension and subsequent (October 7) discharge were unlawfully motivated because of his Union 7 When management has advance knowledge that a specific job is to be "rerun in the near future" to fill a reorder, employees are instructed to treat the plate with a special gumming process and store it in a separate drawer to avoid scratching and light exposure There is no evidence that such instruction was given here, nor is there evidence or claim of any possible reorder of the job run off by the plate here in question Normally, the plates are only wiped free of excess ink, thrown into the dead plate box, and sold as "scrap" for a nominal amount (2 to 4 cents per pound) when the dead plate box is full (it takes 3 months to fill a box) "Scrap" plates or parts may also be utilized routinely for sundry purposes such as to build shelves, to cover benches and desks, to keep the fans from blowing labels, and to mix ink, without necessity for obtaining permission When so used, the plates obviously become unusable to fill unanticipated reorders, if any-especially where they have been cut up or bent Vandervort acknowledged that it has happened that additional copies have been run off from plates in the scrap bin if "not too damaged " However, he recalled that on at least one occasion his forman (Burke) instructed him to stop "digging" for a plate out of the scrapbox because (according to Burke) locating it "would cause more problems than remaking [it] " According to 839 activities and/or his filing of unfair labor practice charges-presents only a question of fact , the key issue being Respondent 's intent or motive . In determining this question it should be borne in mind that "[h ]uman qualities , such as motive , can only be shown circumstantial- ly where the possessor has not previously revealed them directly." (N.L.R.B. v. Tepper, d/b/a Shoenberg Farms, 297 F.2d 280, 284 (C.A. 10)). "It would indeed be the unusual case in which the link between the discharge and the [protected ] activity could be supplied exclusively by direct evidence ." N.L.R B. v. Melrose Processing Co., 351 F.2d 693, 698 (C.A. 8). "Thus, where there are legitimate reasons for the discharge of an employee , the question is whether those were in fact the only grounds for the dismissal, or whether they were `put forth as a mere pretext to justify an impermissible discharge .' " N.L.R.B. v. Pembeck Oil Corp., 404 F.2d 105, 110 (C.A. 2). 2. The 2-day suspension Insofar as Vandervort's 2-day suspension is concerned, I have no difficulty in concluding that Respondent's action was not unlawful under the Act. As found, on September 8, when Vandervort was instructed by his superior (Leadman Mulhauser) to rerun a plate which Mulhauser regarded as defective, Vandervort saw fit to enter into a "heated discussion" as to "whether the plate needed to be redone." When Mulhauser, in the performance of his duty, reported the matter to his own superior (Burke), Vandervort became "infuriated." Vandervort finally redid the job (admittedly a "fairly" easy one) but only after warned to "either ... redo it or punch out." The next day (September 9), Respondent imposed a 2-day disciplinary suspension for this refractory attitude and conduct. When Vandervort took exception to this, first to Printshop Manager McDonald and then to Labor Relations Manager Pierce, both of these officials sought to allay his suspicion that his Union advocacy (he was the initiator of the Union movement in February 1969) sparked the suspension. Stressing that the Company's sole concern was that he "got into an argument with a supervisor . . . a leadman, as to doing a particular job," Pierce offered to intercede on his behalf to reduce the penalty to a 1-day suspension if Vandervort could "see the problem." Vandervort, however, insisted "that the whole thing [be] cut off or not at all" and filed an unfair labor Vandervort's uncontradicted testimony, he had complete authority "to remake [a plate ] rather than dig down through the box to find it " Insofar as the plate in question is concerned, Vandervort testified that he did not "stop to examine the condition" of this plate when removing it from the scrap heap 8 The original aluminum plates measured approximately 25-1/2 inches by 38 inches with a thickness of 0011 inches , the cutout sections were approximately 9 inches by 9 inches 9 The record establishes that notwithstanding this requirement, employees habitually removed and retained objects of apparently minor value (e g, scrap paper, cardboard, pencils, and pens), without obtaining permission, and that work articles (e.g, knife , ruler, pens, and pencils) also were taken home overnight (and later returned ) without permission There is no evidence of a prior incident involving allegedly unauthorized "removal" of discarded plates from the scrap heap is Vandervort testified. however, that he "didn't feel like I could get permission to take them out for the purpose [i e., supplying evidence to the General Counsel for prosecution purposes] I needed them " 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD practice charge asserting that the 2-day layoff was discriminatory in violation of the Act. Based on the entire record, I find that General Counsel has not established that the 2-day suspension was unlawful. In my view, the disciplinary action constituted nothing more than legitimate exercise of managerial discretion to discipline an employee whom Respondent regarded as recalcitrant or insubordinate in complying with the instruction of a leadman. "The Act's grant of rights to employees to engage in organizing activities, to belong to a union, and to engage in collective bargaining was not intended to deprive management of its right to manage its business and to maintain production and discipline." J. P. Stevens & Co., 181 NLRB No. 97. 3. The discharge Respondent's motive in discharging Vandervort on October 7, 1 month after the suspension, under the circumstances described, is in a different category. As noted, when he returned to work on September 11 (after the 2-day suspension), Vandervort found the two plates he had worked on (which were the subject matter of the "heated discussion" with Leadman Mulhauser, causing the suspen- sion) in the "scrap" or "dead plate" box. He took sections of the plates to the Board agent as "proof" that his suspension had been unmerited and discriminatory. Admittedly he failed to notify his Employer that he was doing so, or to seek its permission to do so.tt When Respondent learned from the Board's investigator, on October 6, what had happened Printshop Manager McDonald suspended Vandervort for "theft," resulting in Vandervort's second charge here, relating to his furnishing of evidence to the Board investigator. On October 9, Vandervort was formally notified of his discharge. The ultimate question to be decided is simply this: Would Respondent have discharged Vandervort if he had removed the plates for a purpose other than to supply the Board with "proof" 12 I am persuaded that it would not. The plates from the scrapbox admittedly had no intrinsic monetary value. While such plates were occasionally used to refill customer orders, this appears to have been the exception rather than the rule, and has at any rate not been shown or claimed to be the case here. When the reuse of a plate was anticipated, it was specially treated with a protective coating (gumming process) and stored in a separate drawer to avoid the deleterious effects of surface scratches and exposure to air and light. This had not been done to the plate here in question, further negating the likelihood of its availability for effective reuse . According to Van Otterloo, an employee of long standing, even this procedure was " There is no claim that the Board agent was aware of the nature of the "proof," or the means by which Vandervort intended to procure it, to establish his alleged discriminatory discharge. 12 In my view , the record does not support General Counsel's alternative theory that the discharge was discriminatorily motivated because of Vandervort's outspoken Union advocacy , since no link has been shown between the discharge and such activity . I so find. 13 As noted previously, Respondent rested without calling any witness. Employee Van Otterloo, a journeyman offset stripper employed for 24 years in Respondent's printing department and an apparently highly regarded employee entrusted with the job of ordering plates for Respondent , indicated that to his knowledge the job was not rerun by the Company. Respondent's failure to adduce evidence on this point warrants seldom utilized. According to Vandervort, the decision to so preserve a plate was normally made before the job was first run on the press. Scrap plates were seldom reusable since they were subject to rough handling, constant banging around (from other discarded plates flung into the scrapbox), and oxidation. Moreover, "digging" for them in a scrapbox (which could hold as many as 200 to 400 plates, weighing as much as 300 or 400 pounds) could be more burdensome than remaking the plates. Respondent prod- uced no evidence that the disputed (reworked) plate, removed from the scrapbox , was in a reusable condition, or, indeed, that it had any potential monetary value such as because of an actual or anticipated reorder.13 Furthermore, the record establishes that many scrap plates were rendered unusable because they were cut or bent out of shape and used by employees in the plant for all sorts of purposes unrelated to their original use or to their preservation for future use (building shelves, covering benches and desks, mixing ink, etc.). To be sure, the scrap plates-although at best of doubtful reusability or value-were still technically Company property and Respondent does have a rule requiring a pass for taking property off the premises. However, the record establishes that employees frequently removed articles of minor value belonging to Respondent (pens, pencils, pads of scrap paper, etc.) without permission or repercussion. Respondent's rule against property removal was obviously designed to avoid theft of property of value. As Respondent indicates in its brief, the rule was an antidishonesty rule; it was hardly intended to apply to discarded waste or scrap material-paper, plates, or otherwise.14 Vandervort re- moved the two scrap plates not for dishonest reason, but to provide evidence (which he regarded as relevant) in the investigation of an unfair labor practice charge. While, as Respondent asserts, Vandervort could have requested permission, it is not surprising that he had not since, as he testified, he could hardly have expected to "get permission to take them out for the purpose [he J needed them," i.e., to supply "proof" to establish his Employer's alleged guilt.15 Accordingly, while not condoning the self-help method by which Vandervort obtained the "scrap" plates to submit to the Board agent, I am nevertheless persuaded, on the basis of the record presented, that but for the fact that the scrap plates were removed to furnish "proof" of the Company's culpability in the pending unfair labor proceeding, Vandervort would not have been visited with the severe penalty of discharge. I therefore find that the discharge was in at least substantial part motivated by Respondent's knowledge that the plates were to be used in the inference that, if adduced, the evidence would not have been favorable. See N. L. R. B. v. Wallick & Schwalm Company, 198 F.2d 477, 482 (C.A. 3). Law v. N.LR.B., 192 F.2d 236, 238 (C.A. 10); N.L.R.B. v. Kalof Pulp & Paper Corp., 290 F.2d 447, 451 (C.A. 9). 14 This is suggested by Respondent's written rule providing that a dischargeable offense consists of "serious acts of misconduct which are generally recognized as cause for immediate discharge, such as dishonesty, drunkenness , assault, sleeping on the job, and other equally serious offenses." 15 Nor can I charge Vandervort, an unsophisticated factory worker, with knowledge that the evidence could have been obtained through a subpena, as Respondent would have me do (br. p. 12). GATES RUBBER COMPANY, INC. the investigation of the charge lodged against the Company.16 A discharge for rendering such assistance and cooperation during the pendency of charges constitutes a flagrant violation of Section 8(a)(1) and (4) of the Act. As the Board stated in Robert Scrivener, d/b/a, A. A. Electric Co, 171 NLRB No. 65' The investigation of charges filed in an integral and essential stage of Board proceedings. It is clear that Respondent's conduct falls within the prohibition of Section 8(a)(1) and (4) of the Act. These sections are designed, at least in part, to safeguard the procedure established for the vindication of Section 7 rights by assuring protection against employer retaliation to those who participate therein. As the Supreme Court has stated [Nash v. Florida Industrial Comm'n., 389 U.S. 235, 238 ], Congress intended that ". . . all persons with information about unfair labor practices are to be completely free from coercion against reporting them to the Board." See also Teamsters, Chauffeurs, etc., Local 901 (Interstate Air Service Corp.), 167 NLRB 135. Cf. N.L R.B v. Industrial Union of Marine & Shipbuilding Workers of America, AFL-CIO, 391 U.S. 418, 424; John Hancock Mutual Life Insurance Company v. N.L.R.B, 191 F.2d 483, 485-486 (C.A D.C ).17 This is not to say that unauthorized removal of information or evidence from an employer's plant to assist in investigating a charge will in all cases and under all circumstances immunize a discharge. It is to say only that under the circumstances shown, where the article was turned over by the employee to a Board agent-in purported or not unreasonably supposed compliance with the Board agent's request-the employer may not retaliate against him merely because his action constitutes technical "misappropriation," where the employer would not other- wise have taken such action against the employee in the absence of the "Board evidence" factor 18 In such a situation, the employer's naked proprietary right must give way to the "overriding public interests [for] unimpeded access to the Board." !(Industrial Union of Marine & Shipbuilding Workers, supra, 391 U.S. at 424.) For all of the foregoing reasons, I conclude that the preponderance of evidence and the reasonable inferences to be drawn therefrom establish that the October 7 discharge of Vandervort was in violation of Section 8(a)(1) and (4) of the Act. I find that the reason advanced for his discharge ("theft" or removal of two "scrap" plates without permission or a pass) is pretextuous. Cf. General Engineer- I6 The law is settled that where mixed motives-one legal and one illegal-account for an employer's action, the effect of the conduct is the same as though the illegal reason were the only operative one N L R B v Whitin Machine Works, 204 F 2d 883, 885 (C A 1), N L R B v Jamestonn Sterling Corp, 211 F 2d 725, 726 (C A 2), N L R B v Whitfield Pickle Company, 374 F 2d 576, 582 (C A 5) it The fact that the charge against Respondent is found to be unmeritorious (supra, sec B, 2), is of no consequence Cf N L R B v Whitfield Pickle Company, 374 F 2d 576, 582-583 (C A 5) 18 In its brief (p 11), Respondent contends that the "misappropriation" of the scrap plates justified Vandervort's discharge, irrespective of their value It states "Misappropriation of Company property is misappropria- tion of Company property You do something dishonest or you don't A person is no less dishonest because he takes someone else's property of 841 ing Inc. and Harvey Aluminum, 131 NLRB 648, 678, enfd. in this respect, 311 F.2d 570, 573 (C.A. 9); N L.R.B. v. Artim Transportation System, Inc, 73 LRRM 2556 (C.A. 7). The record establishes that the discharge, at least in controlling substantial part, was motivated by Respondent's intent and desire to punish an employee for cooperating and attempting to assist a Board agent in the investigation of an unfair labor practice charge.19 CONCLUSIONS OF LAW 1. By discharging employee Vandervort on October 7 for cooperating with an agent of the Board in the investigation of an unfair labor practice charge filed by him, Respondent interfered with and restrained Vandervort in the exercise of his statutory rights, in violation of Section 8(a)(1) and unlawfully discriminated against him in violation of Section 8(a)(4) of the Act. 2. The foregoing unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 3. The evidence fails to establish that Respondent has violated Section 8(a)(3) or (1) of the Act by discriminatorily suspending Vandervort on September 9 because of his Union or protected concerted activities. THE REMEDY The Recommended Order will contain the conventional provisions in cases involving findings of violations of Section 8(a)(l) and (4) of the Act. These will require Respondent to cease and desist from the unfair labor practices found, to offer reinstatement with backpay to the employee discriminated against, and to post a notice to that effect. Reinstatement shall be to the discrimmatee's former position or, if that position no longer exists, to a substantially equivalent one, without prejudice to his seniority and other rights or privileges. The discriminatee shall be made whole for any loss of earnings he may have suffered by reason of the discrimination against him by payment to him of a sum of money equal to that which he normally would have earned from his date of discharge (October 7, 1969), to the date of offer of reinstatement, less net earnings if any 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. lesser value than if he takes something of greater value. Theft constitutes dishonesty It is submitted that a person is either dishonest or he is not dishonest in the same manner as a woman is pregnant or she is not pregnant You can't be just a little bit of either You are or you are not " 19 In reaching the conclusions herein, I have not overlooked the decision of the Colorado Department of Labor and Employment (of which I took official notice pursuant to Respondent's request) that Vandervort was not entitled to unemployment compensation because properly terminated for "theft" The State agency's determination , based on an entirely different record and in which the Board was not a party, is not binding upon me here See NLRB v Stafford Trucking, Inc, 371 F 2d 244, 249 (C A 7) N L R B v Tennessee Packers, inc, 339 F 2d 203, 204 (CA 6) 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD RECOMMENDED ORDER20 Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in the case, and pursuant to Section 10(c) of the Act, it is recommended that Respondent, Gates Rubber Company, Inc., its officers, agents , successors , and assigns , shall: 1. Cease and desist from: (a) Discharging, laying off, or otherwise discriminating against any of its employees for exercising the right to cooperate with and furnish information to agents of the Board in the investigation of unfair labor practice charges. (b) In any like or related manner interfering with, restraining, or coercing any of its employees in the exercise of rights guaranteed in Section 8(a)(1) and (4) of the Act. 2. Take the following affirmative action, which it is found will effectuate the policies of the Act: (a) Offer Arden D. Vandervort immediate and full reinstatement to his former position or, if that position no longer exists, to a substantially equivalent one, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered as a result of his discharge, in the manner set forth in "The Remedy" section herein. (b) Notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) 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 the amount of backpay due under the terms of this Recommended Order. (d) Post at its plant in Denver, Colorado, copies of the attached notice marked "Appendix." 21 Copies of said notice, on forms provided by the Regional Director for Region 27, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.22 IT IS FURTHER RECOMMENDED that the complaint be dismissed as to violations alleged but not found herein. 20 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings , conclusions , recommendations , and Recommended Order herein shall, as provided in Section 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. 21 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 be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 22 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps 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 before a Trial Examiner of the National Labor Relations Board, at which all sides had the chance to give evidence, it has been decided that we, Gates Rubber Company, Inc., have violated the National Labor Relations Act, and we have been ordered to post this notice. The National Labor Relations Act gives you as employees certain rights, including the right to file unfair labor practice charges and to cooperate with and assist the Board in its investigation of such charges , without retaliation or reprisal from your employer. Accordingly, we give you these assurances: WE WILL NOT interfere with your right to cooperate with and furnish information to agents of the National Labor Relations Board by discharging, laying off, or otherwise discriminating against you because you exercise such right. WE WILL offer Arden D. Vandervort his former job with all of his rights and backpay due him, plus interest. WE WILL notify Arden D. Vandervort if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accord- ance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. GATES RUBBER COMPANY, INC. (Employer) Dated By (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 concerning this notice or compliance with its provisions may be directed to the Board's Office, New Custom House, Room 260, 721 19th Street, Denver, Colorado 80202, Telephone 303-297-3551.