Jim Causley Pontiac

JIM CAUSLEY PONTIAC Jim Causley Pontiac, Division Jim Causley, Inc. and John P. Wittbrodt. Case 7-CA-13577 September 19, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY On May 27, 1977, Administrative Law Judge Norman Zankel 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 and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,. and conclusions of the Administrative Law Judge, to modify his remedy,2 and to adopt his recommended Order. 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 the Respondent, Jim Causley Pontiac, Division Jim Causley, Inc., Detroit Michi- gan, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I 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 are incorrect. Standard Dr)y Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 In accordance with our decision in Florida Steel Corporation, 231 NLRB 651 (1977), we shall apply the current 7-percent rate for penods prior to August 25. 1977. in which the "adjusted pnme interest rate" as used by the Internal Revenue Service in calculating interest on tax payments was at least 7 percent. DECISION STATEMENT OF THE CASE NORMAN ZANKEL, Administrative Law Judge: This case was heard by me on April 6 and 7, 1977, at Detroit, Michigan. The charge was filed by John P. Wittbrodt, on December 8, 1976.1 On January 17, 1977, the Regional All dates are in 1976 unless otherwise stated. 2 By oral motion to amend its answer to par. 5 of the complaint I The facts recited in this section are a composite of the testimony presented by various witnesses of the General Counsel and Respondent. and 232 NLRB No. 37 Director for Region 7 issued a complaint and notice of hearing against Jim Causley Pontiac, Division Jim Causley, Inc. (hereinafter the Respondent), alleging, inter alia, that Respondent violated Section 8(a)(1) of the National Labor Relations Act, as amended, by having terminated Witt- brodt from employment with Respondent on December 7, because Wittbrodt had engaged in protected concerted activity and by refusing to reinstate him to his employment with Respondent. Respondent filed a timely answer denying the substantive allegations of the complaint. All parties were afforded full opportunity to participate in the proceeding, to examine and cross-examine witnesses, and to argue orally. The counsel for the General Counsel of the Board and Respondent's counsel filed posthearing briefs which have been duly considered. Upon the entire record in the case, including my observation of the demeanor of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. JURISDICTION Respondent, a Delaware corporation, maintains and has maintained, at all times material herein, a principal place of business at 17677 Mack Avenue, Detroit, Michigan, where it is, and has been, engaged in the sale and service of automobiles and related products. During 1976, in the course and conduct of its business, Respondent's gross revenue was in excess of $500,000. During the same time period, Respondent purchased and caused to be transported to its 17677 Mack Avenue location automobiles and automobile parts, and related other goods and materials valued in excess of $50,000, of which goods and materials valued in excess of $5,000 were transported and delivered to that location directly from points located outside the State of Michigan. Respondent admits,2 and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts3 Respondent's operations at 17677 Mack Avenue, De- troit, Michigan, location are conducted in two physical facilities. The sales and service areas are situated (appar- ently at Respondent's principal address) in one building, while the paint and body shop is in another building one or two blocks away from that address. In the northeast section of the body shop are located employees classified as "bump" men who finish the metal surface of vehicles for painting and perform necessary repairs on body frames. In the center of the body shop, there are four painting stalls. The southwest corner of the body shop, at all times material herein, housed a room which was identified as a consist of testimony upon which all witnesses agreed or which appear uncontradicted in the record. Where material variations exist, they are discussed and resolved. 125 DECISIONS OF NATIONAL LABOR RELATIONS BOARD paint room where Wittbrodt was regularly assigned to perform his work as a warranty painter. At all times material herein, Leo Chiotti, a used-car mechanic, worked in the same room as Wittbrodt. Chiotti worked alone in that room from approximately November 1975 until May 1976, when Wittbrodt was first hired by Respondent. When Wittbrodt was hired, painters Robert Ross and Edward Salmonson were regularly assigned to work in the stalls in the center of the body shop and, in late November 1976, another painter, Thomas Rice, was temporarily assigned to that location for the winter months. Rice previously performed his painting services in the sales and service building. Respondent's supervisory hierarchy, relevant herein, consisted of James F. Causley, president; Robert J. Strickroot, service and parts director; and Bertram A. Strickroot, body shop manager. Specifically, Wittbrodt began working for Respondent on May 5. His immediate supervisor, at all times material herein, was Bertram Strickroot (hereinafter called Bert), whose regular work station was in the body shop and who had day-to-day overall responsibility for that facility. Robert Strickroot (hereinafter called Bob), regularly assigned to the sales-service building, also exercised supervisory authority over Wittbrodt because it was Bob who originated orders for body shop work. Wittbrodt credibly testified 4 that sometime during the summer5 he orally complained to Bob of what Wittbrodt characterized as excessive paint fumes in his work area. Wittbrodt claimed that a dangerous condition existed because flammable paint cans were open and the pilot light of gas heaters in the body shop created a potentially explosive situation. Bob testified he did not remember Wittbrodt complaining to him about the paint fumes but did recall that Chiotti did so. Chiotti testified that he made his complaint to Bob after discussions, over a period of about 4 months, between Chiotti and Used-Car Manager Skow and General Manager Arra, were unavailing. According to Chiotti, Arra personally investigated Chiotti's complaint by examining the work location of Wittbrodt and Chiotti and said he would try to install an exhaust fan.6 Wittbrodt testified that Bob told him that installation of a fan was under consideration. Because of the consisten- cy of the versions presented by Chiotti and Wittbrodt, I credit Wittbrodt's assertion that he complained to Bob. 4 As will be developed hereinbelow, wherever there are conflicts in the testimony between witnesses of the General Counsel and those of Respondent, I deem each General Counsel witness more reliable than any of Respondent's witnesses, based on my observation of their forthright demeanor and the mutual corroboration of their narrations. In contrast, the record reflects contradictory testimony among Respondent's own witnesses; self-contradictions: and logical inconsistencies which will be further explicated below. I Respondent, in its posthearing brief, asserts Wittbrodt should not be credited because he varied the time of this complaint from mid to late summer. I observed that Wittbrodt, throughout his testimony had difficulty in recalling precise dates and times. This, however, does not detract from his credibility, for (I) his recollection of events was sharp and consistent: (2) his description of those events was corroborated by Chiotti, Rice, and (at times) Bob and Bert, and by documentary evidence introduced by the General Counsel: (3) there were substantial and material inconsistencies in the evidence presented by the Respondent's witnesses: and (4) Respondent's witnesses admitted certain facts supportive of General Counsel's case. i Arra was not called by Respondent to refute this remark. Bert admitted that in October, Wittbrodt complained to him about excessive noise from a telephone buzzer in addition to the fumes. The record reveals no other employee had complained about the buzzer noise, but others were concerned about the fumes. Thus, Rice testified he complained to both Bob and Bert about the fumes, and that he and Ross complained to each other. Additionally, the record reflects that Rice and Chiotti had discussed the fume situation with Wittbrodt. Apparently, no remedial action was taken by Respon- dent upon any of the complaints and Wittbrodt drafted a letter7 which he showed to Chiotti. Chiotti confirmed that he had seen the letter; that Wittbrodt told him it would be mailed to the "government"; and that he authorized Wittbrodt to use Chiotti's name. 8 According to Wittbrodt, copies of the letter were mailed to three government agencies identified by him as the "Labor Board," the Wayne County (Michigan) Air Pollution Control agency; and the Michigan Department of Labor. The evidence reflects an acknowledgement from the Michigan Depart- ment of Labor,9 advising Wittbrodt that the subject matter of his letter falls within the jurisdiction of the Michigan Department of Health and that his letter had been forwarded to that agency for appropriate action. By letter dated October 22,1t the Michigan Department of Public Health, Division of Occupational Health (hereinafter called MIOSHA) acknowledged receipt of Wittbrodt's October 12 letter and enclosed a blank formal complaint form for Wittbrodt to complete and file. Wittbrodt had the form completed and signed it on October 25,t1 and then returned it to MIOSHA. On December 7, Gerard Noronha, industrial health engineer employed by MIOSHA, made an unannounced visit to Respondent's premises for the purpose of conduct- ing an investigation upon Wittbrodt's October 25 com- plaint. Noronha testified that his agency's task is to assure compliance with the industrial health standards of the federal government's Occupational Safety and Health Administration (OSHA); that he receives his investigation assignments by delivery to him of an exact copy of a formal complaint filed, minus the complainant's identification; that no prior arrangements are made with employees for the investigations; and that the complainant's identities are kept anonymous from those employers. ? G.C. Exh. 5, dated October 12. 8 Respondent's brief claims the letter and Chiotti's testimony pertaining to it are contradictory, thereby vitiating the document as evidence of concerted activity and also rendering Chiotti an unreliable witness. Respondent's claim is based on the failure of the letter to explicitly mention Chiotti by name. Nonetheless, on p. 2 of the letter, Wittbrodt wrote: "The mechanic across the aisle from me is already under treatment by a physician from the conditions described above. The reason I am wrting you this letter is because we have tned to get results from the service manager and Mr. Causley himself with no satisfaction." (Emphasis added.) Thus, inasmuch as the record reflects that Chiotti was the "mechanic across the aisle" from Wittbrodt, I deem the failure to mention Chiotti's name does not carry the implications ascribed by Respondent. In my opinion Wittbrodt's reference to Chiotti by job classification is a consistent, if not literal, compliance with Chiotti's authorization and serves to corroborate, rather than contradict, both Wittbrodt and Chiotti in their testimony. 9 G.C. Exh. 8. iO G.C. Exh. 6. " G.C. Exh. 7. 126 JIM CAUSLEY PONTIAC Noronha arrived at Respondent about 8:30 a.m. on December 7, and was advised by a secretary that all managers were in a meeting. 2 He was asked to wait and, after about 5 minutes elapsed, he met Causley and Arra whom he advised that a complaint had been received. He gave Causley a copy of the complaint which bore no identification of the complainant. The hazards complained of were: "paint fumes, gas heater in ceiling, work table containing paint in the same room, ear piercing buzzer on phone to the body shop office." 3 Noronha credibly testified, without contradiction,14 that Causley was "up- set," and remarked that he (Causley) made no money out of that building (the body shop) and if he had any problems, he might as well "shut it down."'5 Noronha, Causley, and Arra went to the body shop, arriving there about 8:55 a.m., where Noronha conducted tests for carbon monoxide, noise, and paint solvents. Noronha engaged in his testing until about 11:30 a.m., took a lunch break until 11:55 a.m., then continued his testing until leaving Respondent's premises at about 3:45 p.m. Causley was with him much of this time. After the management meeting ended and, while Nor- onha was engaged in his testing, Bert and Causley informed Wittbrodt that he was laid off.'6 Thus, Wittbrodt testified that he reported to work "very late" 17 on December 7, due to an automobile accident; picked up an automobile on which he was to continue working (see subparagraph C,3, infra), and was met by Causley and Bert at the door. They asked him why he was late and Wittbrodt told them it was due to an accident. Causley then asked Bert how Witt- brodt's attendance was at that time, and Bert responded it was good until a couple of weeks before then. Causley then inspected the area, saw some vehicles had been "flagged," and asked Wittbrodt if those vehicles were complete. Wittbrodt replied in the negative and Causley became upset. Wittbrodt told Causley the other painters flagged vehicles in the same way.'8 Causley told Wittbrodt he was not making enough money for him, while all the other painters were doing well. Wittbrodt testified that Causley then said "Since you have been coming in late and not making enough money for me, I am going to have to lay you off." Shortly thereafter, Bert told Wittbrodt to pick up his tools and leave. Wittbrodt complied and has not returned to work for Respondent since December 7. The General Counsel contends that Wittbrodt's layoff was in reprisal for having filed the formal complaint with MIOSHA, and for having participated in the general complaints voiced by him and other body shop employees. 12 Causley met with all supervisory and management officials on a weekly basis, every Tuesday. 13 Item 5, G C. Exh. I I. Compare to Item 5, G.C. Exh. 7. G.C. Exh. II is a copy of the document delivered by Noronha to Causley. 4 Causley did not appear as a witness at the hearing. 1s This remark is not alleged as, nor contended to constitute, a violation of the Act. iR There is a dispute between Bert (who was present at the layoff discussion) and Wittbrodt as to whether it was Bert or Causley who actually informed Wittbrodt of the layoff. Also, the precise times when this occurred are in dispute. Because Causley did not testify. and because I have already concluded that where conflicts exist. General Counsel's witnesses are more reliable, I credit Wittbrodt's version. Moreover, Bert's oral testimony before me was, in a crucial respect, self-contradictory to his preheanng affidavit The Respondent maintains that the decision to lay off Wittbrodt was made at the management meeting of December 7 at a time prior to Respondent's awareness that the MIOSHA complaint had been filed, and that the reason for the layoff was Wittbrodt's poor productivity and poor work habits. B. The Alleged Concerted Activity As indicated above, the record contains evidence of numerous employee complaints to management regarding the paint fumes. The following instances of such com- plaints occurred prior to Wittbrodt's layoff: (1) Chiotti complained about the fumes in early summer to Used-car Manager Skow; (2) a month later, Chiotti's complaint was made to General Manager Arra; (3) Chiotti then complained about the fumes to Bob and to Causley; (4) Ross and Rice complained about the fumes to Bert; (5) Rice complained about the fumes to Bob; (6) Wittbrodt complained about the fumes as indicated above; and (7) Chiotti, Ross, Rice, and Wittbrodt spoke about the poor conditions due to the fumes among one another. Although this abundance of complaining might have resulted in group action, no evidence was adduced by the General Counsel to indicate that those employees sought such action. In his brief, the General Counsel cites no authority to support the contention that the various complaints became perfected into protected concerted activity whereas Respondent, relying principally upon Mushroom Transportation Company, Inc. v. N. LR.B., 330 F.2d 683 (C.A. 3, 1964), argues that indicia of group action are an essential predicate for a finding that Wittbrodt's activity herein constitutes concerted activity protected by the Act. I find Respondent's reliance on Mushroom Transportation Company misplaced. It is clear that the excerpt from 330 F.2d 685. though appearing to support Respondent's contention, is quoted out of context. On the very same page of the Mushroom Transportation Company case, the court also stated that given "the object of initiating or inducing or preparing for group action . . . preliminary discussions are [not] disqualified as concerted activities merely because they have not resulted in organized action." The only direct evidence presented before me to indicate that the employees' complaints over the paint fumes might ripen into group activity is the presentation by Wittbrodt of his October 12 letter to Chiotti and the request for authority to "use Chiotti's name" (see fn. 8, supra). That evidence alone persuades me that the seed of ultimate group action had been planted and that, had there been no response received from any (not in evidence). He orally stated that, at the layoff discussion. he told Wittbrodt the reason for the layoff was lack of work. On cross-examination. he admitted he enumerated three reasons for the layoff in his affidavit given to the Board during the investigation of the instant charge. Those reasons weie (I) low production, (2) excessive tardiness, and (3) poor work quality. In view of this discrepancy, and the others discussed herein beanng on Bert's credibility, I deem his testimony unreliable. 17 Wittbrodt's normal workday began at 8:30 a.m., but he could not recall the time he reported on that day. His timecard for that date was not produced at the hearing. i5 A flag (or ticket) was put on vehicles by the painters after they had painted the vehicle and it was placed outside to dry. The implications (though not explained at the hearing) of Causley's upset apparently are that flagging was meant to designate alfiu// completed job. 127 DECISIONS OF NATIONAL LABOR RELATIONS BOARD government agency, Wittbrodt (based on his prior persis- tent complaining) would have taken additional steps involving more collective action. Moreover, I interpret Wittbrodt's October 12 letter as a means of expressing more than his personal objective. His explicit mention of the "mechanic working across the aisle" indicates that he was requesting corrective action which would directly benefit others than himself, and the request for action was made with the clear and express consent of at least one other employee. Thus, I conclude that, even when mea- sured by the standards contained in Respondent's post- hearing argument, the subject actions of Wittbrodt satisfy the Board's longstanding pronouncements as to what employee activities comprise protected concerted activity. (See Walls Manufacturing Company, Inc., 128 NLRB 487 (1960), remanded on other grounds, where other employees approved the action taken by an individual employee). Accordingly, I find no merit to Respondent's contention that Wittbrodt's actions were of his personal concern and hence not concerted within the meaning of the Act. Assuming, arguendo, the foregoing analysis is imprudent, there exists herein yet another reason on which the General Counsel should prevail on this issue. General Counsel argues that "a complaint to a State OSHA is concerted activity per se," see Allelulia Cushion Co., Inc., 221 NLRB 999, 1000 (1975)." (Interestingly, Respondent also alludes to this case, but cites it for the proposition that employer knowledge of the complaint, an issue to be discussed separately hereinbelow, is necessary to finding a violation). In Allelulia Cushion, the evidence revealed that an employee, acting totally alone, filed a complaint with the California OSHA office about safety conditions in his shop. The Board, recognizing that the Act should be administered in conjunction with the objectives of other employment legislation, concluded that the "filing of the complaint with the California OSHA office was an action taken in furtherance of guaranteeing Respondent's em- ployees their rights under the California Occupational Safety and Health Act" (221 NLRB at 1000), and established the principle that "where an employee speaks up and seeks to enforce statutory provisions relating to occupational safety designed for the benefit of all employ- ees, in the absence of any evidence that fellow employees disavow such representation, we will find an implied consent thereto and deem such activity to be concerted" (221 NLRB, at 1000). In the instant case, it is clear that Wittbrodt's October 12 letter and subsequent filing of the complaint with MIOSHA was an effort to enforce all employees' statutory health and safety rights. There is evidence herein not of an absence of a disavowal by other employees, but, instead, a multitude of affirmations that Wittbrodt's concerns were shared by other employees. Finally, Chiotti's agreement to the reference to him in Wittbrodt's October 12 letter is most convincing evidence of concurrence in Wittbrodt's MIOSHA complaint. Upon the foregoing, I conclude that the facts herein are governed by the rationale and rule of Allelulia Cushion and meet the I' See fn. 16, supra. 20 At the hearing, Torres pleaded an inability to explain this discrepancy. 21 The painters were paid on a piece-work basis. 22 Wittbrodt, on rebuttal, recalled three to five such conversations from June to December. requirements there set forth to support a finding that Wittbrodt had been engaged in concerted activity. The Board has adhered to the Allelulia Cushion principle in recent cases. (See Phyllis Whitehead d/b/a P & L Cedar Products, 224 NLRB 244 (1976), where, citing Allelulia Cushion, the Board found presentation of a safety list to a union shop steward to be protected concerted activity; General American Transportation Corporation, 227 NLRB 1695, 1703, fn. 27 (1977), where the Board approved the observation of an Administrative Law Judge that "seeking to enforce statutory provisions relating to occupational safety designed for the benefit of all employees constitutes a protected concerted activity.") Accordingly, and because the record reveals no evidence that Wittbrodt's complaints were made in bad faith or with an intent to harass Respondent, I find Wittbrodt's filing of the MIOSHA complaint constitutes protected concerted activity. C. The Respondent's Defenses Three members of management testified as to the reasons for Wittbrodt's layoff. Taken together, the reasons conform to those set forth in Bob's prehearing affidavit.' 9 The reasons are: I. Low production: Dominic Torres, Respondent's secretary-treasurer testified that the decision to lay off Wittbrodt was made during the management meeting on December 7, although he acknowledged his prehearing affidavit indicates that, at the time he made the affidavit, he could not recall whether the decision had been made at that management meeting.2 0 In any event, Torres testified that the layoff was due to Wittbrodt's low production. It is undisputed that the production for painters was measured in terms of individual earnings.21 Of the four painters, Ross, Salmonson, Rice, and Wittbrodt the average earn- ings per week in 1976 ranged from $576 to $238, the latter being Wittbrodt's earnings. Bert confirmed Torres' testi- mony that Wittbrodt's production had been less than half of any of the other painters and claimed he discussed the low production with Wittbrodt an average of three times a week, throughout Wittbrodt's employment. Bob claimed that he discussed Wittbrodt's lack of production "several times" during his employment.2 2 Additionally, Bert testi- fied he reviewed the production of all painters with Causley on Friday, December 3, and his prehearing affidavit asserts that the decision to lay off Wittbrodt was made on December 3?23 Bert also testified it was he who made the layoff decision, while Bob testified that Causley made it. Based on the myriad of inconsistencies among and between these three management officials alone and, conceding the point that Wittbrodt's production was the lowest, I am unable and unwilling to conclude that his production quotient contributed to his layoff. Bearing further on the validity of this stated reason is the assertion, contained within Respondent's answer to the 23 At the hearing, however, Bert testified the decision was made on December 7. 128 JIM CAUSLEY PONTIAC complaint, that the decision to lay off was made "several weeks before December 7."24 Finally, during his cross-examination, Bert was steadfast in designating Wittbrodt's separation a layoff, rather than a discharge. During this testimony, Bert revealed an awareness of the distinction between these personnel actions, indicating Wittbrodt had an expectation of recall.2 5 It is implausible to conceive Respondent seriously would desire to renew the services of an employee who it claims is such a low producer and (as will be seen below) possesses the poor work habits and workmanship qualities as Respondent seeks to ascribe to Wittbrodt. In all the above circumstances, especially the patent inconsistencies of testimony, the self-contradictions, and shifting positions, I conclude that the reason of low production is a contrived defense 26 and, hence, find it is not a viable reason of exonerating Respondent from the alleged unfair labor practice herein. 2. Wittbrodt's tardiness: As indicated above, Witt- brodt's regular starting time for work was 8:30 a.m. To support this aspect of the defense, Respondent introduced copies of each timecard of Wittbrodt for the entire period through December 6.27 The timecards for the latter periods were offered by the General Counsel.28 Additionally, Bert testified that he admonished Wittbrodt about his consistent tardiness on the average of twice a week between May and December. Bert admitted, however, on cross-examination, that he told Wittbrodt (I or 2 weeks prior to the layoff) that he had improved in his reporting time. On rebuttal, Wittbrodt testified that Bert spoke to him between five and eight times, during the entire course of his employment, about his tardiness, and admitted that Bert had warned him (in September or October) that continued late arrivals would subject him to discharge. Detailed examination of the timecards reveals that, with the exception of the payroll weeks of November, Wittbrodt indeed was late an average of slightly more than 3 days each week, but generally the delays were no more than 5 to 10 minutes. Rarely does the reporting time exceed 9 a.m. At times, the cards offered by Respondent reveal extended lunch hours, but only by a few minutes. This tends to support Respondent's position. However, the analysis cannot end with this, for the cards also reveal that, in every instance where Wittbrodt was late for work (and also on several days he reported on time or prior to 8:30 a.m.) or extended the lunch hour, he remained at work from between one-half hour to 45 minutes (on the average) later than his prescribed 5:30 p.m. quitting time. The cards submitted by the General Counsel demonstrate that during the week ending November 2, Wittbrodt reported I minute late on only I day; the weeks ending November 9, 16, and 23, he worked 4 days each week without any tardiness; the week ending November 29, he worked 4 days and was 2 24 See G.C. Exh. I(g). par. 8. 2S It is noteworthy in this connection that Torres testified, contrary to Bert. that there was "plenty of work" available. This was confirmed by Bob, who conceded that on or about the layoff date. Witthrodt performed approximately 75 percent of the available warranty work and there had been no reduction in the volume of work available. 2" In this connection, I am also mindful of Bob's admission that job experience is directly related to production; the record demonstrates Wittbrodt was the least experienced of Respondent's painters; and even Ross who had several years' more experience than Wittbrodt occasionally minutes late on two of them; and the week ending December 6, he worked 5 days and was late each day, the tardiness ranging from 6 to 26 minutes. The December 6 timecard shows also that Wittbrodt worked late on each day, his departure times ranging from 1 hour to approxi- mately 3 hours beyond the prescribed quitting time. The issue raised by this aspect of Respondent's defense focuses upon the reasonableness of its implementation of its prescribed workhours. It is recognized that every employer has a legitimate interest in establishing and enforcing attendance rules to maintain its flow of produc- tion and employee morale. Respondent's defense implicitly seeks a determination that Wittbrodt's tardiness constitutes such a serious breach of the working rules that termination is warranted. In all the circumstances herein. I am not convinced that the evidence supports such a conclusion. First, assuming Respondent's legitimate aim in regulating prompt attendance, Wittbrodt's timecards reveal that the claimed derelictions were constant throughout his employ- ment until November.29 Considering Respondent's current emphasis on tardiness, it is strange that Respondent countenanced this condition to exist during May through October without so much as an intervening written warning or suspension. It is reasonable to assume, as I do, that Respondent's inaction during that time period was, at least in part, due to the facts (a) Wittbrodt's compensation was based on piecework and (b) Wittbrodt regularly worked many hours beyond 5:30 p.m. During the week ending December 6, Wittbrodt's reporting time reverted to his pre-November schedules, although that last week he also worked consistently beyond 5:30 p.m. In the face of the discharge warning 2 months earlier, one might well expect Respondent, to be consistent, to have summarily discharged Wittbrodt at any time during the week ending December 6. Instead, not only was that discipline not imposed, but there is no evidence to reflect that the subject matter of Wittbrodt's attendance was considered at the December 7 management meeting during which (according to one of the versions of Respondent's defense discussed above)30 the decision was made to lay him off. Moreover, there is no evidence whatsoever that Wittbrodt's atten- dance was the subject of discussion between Bert (who was in a day-to-day position to observe Wittbrodt) and Causley on December 3 when (according to another version of Respondent's defense) the decision to lay off Wittbrodt was made. The single reference to tardiness was related by Wittbrodt himself during his description of his termination discussions3 when Causley asked Bert (on December 7) to describe Wittbrodt's attendance, and Causley's allusion to that subject when informing Wittbrodt of the layoff. Thus, I do not accept Respondent's claim that Wittbrodt's tardiness record reflects such poor work habits as to warrant his dismissal, in the circumstances herein, because produced work which required rework. (The latter fact will be discussed further, infra, in connection with the defense of Wittbrodt's alleged poor quality.) 27 Resp. Exh. I. 28 G.C. Exh. 4(a) through (f). 29 Apparently, the discharge warning given by Bert had a favorable impact on Wittbrodt during November. 3o It is interesting to note that Respondent's brief claims only that Wittbrodt's layoff was caused by his poor production and quality of work. 31 See sect. II, A, supra. 129 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I conclude that Respondent's actions relating to that tardiness do not demonstrate that Respondent itself considered the matter serious enough to demand such discipline32 or, if it did, then it is highly suspicious that this concern was not translated into action until after the MIOSHA inspection began. Accordingly, I find this aspect of the defense without merit. 3. Poor quality of work: Bob testified that Wittbrodt's quality of work was another factor contributing to his layoff. He said, as to Wittbrodt's quality of work: "sometimes it was very good. Sometimes it was very poor" and that he discussed the poor work with Wittbrodt every time he found a bad job, which would be "many times." However, when asked to describe specific discussions with Wittbrodt concerning quality of work, Bob related an incident involving a 1976 or 1977 Blue Grand Prix on which Wittbrodt had done a poor job painting the entire car. According to Bert, this problem occurred "close to the time" of the layoff. Bert gave no further details of the incident. On rebuttal, Wittbrodt acknowledged that in the week immediately preceding his layoff he had spot-painted nearly the entire car in question because it was full of dirt and paint runs when delivered to Respondent from the manufacturer. The work done by Wittbrodt was in preparation for delivery to a customer of Respondent. Wittbrodt claimed the doors to the paint room were constantly opening and closing, causing dirt to attach itself on the car. He attempted to sand and rub out the dirt. When the job was completed, Wittbrodt testified that Bob appeared at the body shop to pick it up late on Friday, December 3. Wittbrodt asked Bob if the car "would be appropriate," Bob examined it and "agreed" and drove the vehicle to the service and sales building for delivery to the customer. On Monday morning, December 6, Wittbrodt was summoned by Bob to the sales building, where Bob told him the paint job was "terrible." Wittbrodt explained the problems he had keeping the dirt from accumulating on the car during his painting. (The owner of the car was present during some of this conversation.) Bob pointed out specific corrective action and asked Wittbrodt to perform the rework. Wittbrodt refused but, when Bob insisted, Wittbrodt acceded to Bob's instruction, saying he objected to it. That evening, Wittbrodt began his rework on the vehicle,3 3 but had not completed it.34 Although Respondent's witnesses testified to no other specific example of inferior workmanship, Wittbrodt (during his direct examination) candidly recalled that during his first month of work for Respondent, Bob requested Wittbrodt rework a bad job on the door of a vehicle. Wittbrodt then complained his paint gun was inadequate. That incident came to Causley's attention, and Causley rescinded Bob's order for Wittbrodt to perform the rework and, instead, assigned the job to Rice while suggesting to Wittbrodt that he attempt to receive painting instructions from Rice. According to Wittbrodt this was 32 An additional factor in this connection is the fact that I credit Wittbrodt's rebuttal testimony that Bert spoke to him only five to eight times about tardiness over Bert's testimony that such discussions occurred an average of twice a week. 33 This was done on his own time, the record reflecting being he would not be paid for the rework. 34 See sec. A, supra. This is the vehicle which Wittbrodt testified he was preparing to work on when Causley advised him of the layoff. the only unsatisfactory job called to his attention among 4045 vehicles he painted prior to that incident. As indicated above, Wittbrodt was the painter with the least experience of Respondent's painters. Clearly, Causley believed Wittbrodt needed training by suggesting the need for Rice's assistance. I conclude that even Bob did not seriously believe Wittbrodt's quality of work was so substandard for one of his training and experience as to warrant the December 7 layoff. This conclusion is based on: (I) Bob's equivocal evaluation that sometimes Witt- brodt's quality was good, and sometimes poor, (2) Bob's testimonial acknowledgement (not appearing heretofore herein) that the other painters had their work returned to them for rework from time to time, (3) that only one day prior to the layoff he returned the Grand Prix to Wittbrodt for rework when, if Wittbrodt's quality of work warranted termination, that job might have been assigned to one of the other painters, (4) the fact that no adverse personnel action was taken against Wittbrodt until after the MIO- SHA investigation began, nor does the record reveal any such action was contemplated during the period of May to December, and (5) the absence of evidence revealing Wittbrodt's quality of performance was considered at the December 7 management meeting. Accordingly, I find that Wittbrodt's quality of work was not a cause of his layoff. D. Respondent's Knowledge of the Concerted Activity The most perplexing issue herein is that of Respondent's awareness, prior to the layoff, that Wittbrodt had engaged in the activity already found to be concerted and protected by the Act. In every situation I have uncovered in which the Board or courts held an employer violated Section 8(a)(1) by having taken adverse action against employees for engaging in such activity, there was present an element that the employer somehow actually was aware of the employee's activity. 35 Even Allelulia Cushion, supra, implicitly acknowledges the necessity of proof of such knowledge. There, the Board, after having ruled solely on the concerted activity issue, remanded the case for consideration of the merits of a violation in the context of its determination that filing of the OSHA complaint with the state agency was concerted activity. In discussing that issue, the Board noted facts which reveal that Allelulia Cushion knew of the concerted activity because the complaining employee mailed a copy of the California OSHA complaint letter to that employer. Thus, Allelulia Cushion is valid authority only on the proposition that the filing of such complaints is concerted activity. No extensive discussion is necessary to perceive the unjust consequences devolving on the Respondent herein if it were found guilty of the alleged unfair labor practice if it harbored no knowledge that Wittbrodt had 35 For example, N.LR.B. v. Burnup and Sims, Inc., 379 U.S. 21 (1964); Southwest Latex Corporation v. N.LR.B., 426 F.2d 50 (C.A. 5. 1970); Inrerboro Contractors, Inc., 157 NLRB 1295 (1966); B & M Excavating, Inc., 155 NLRB 1152 (1965); Texas Natural Gasoline Corporation, 116 NLRB 405 (1956): Detroit Forming, Inc., 204 NLRB 205 (1973). 130 JIM CAUSLEY PONTIAC engaged in the protected activity. Such retrospective analysis is incongruous with our judicial system. The General Counsel suggests the propriety of inferring the requisite employer knowledge by application of the Board's "small plant" doctrine,3 6 but, though the size of Respondent's work force and the timing of the layoff relative to the appearance of the MIOSHA inspector at Respondent's premises militate in favor of such applica- tion, I am unwilling to do so. It would not be responsible action to utilize that doctrine where, as here, its use requires a preliminary inference that Wittbrodt's filing of his MIOSHA complaint was the subject of "rumors" among Respondent's employees. The record is devoid of the existence of any rumors and I will not assume their existence. Any conclusions of Respondent's knowledge of Witt- brodt's activities must, in my view, be based not on conjecture but on rational and logical evidence. In the search for a causal link between the protected concerted activity and the layoff, I have scrutinized the entire record to ascertain whether or not it contains evidence which objectively demonstrates Respondent's knowledge of Witt- brodt's activity prior to his layoff. This is particularly necessary because it is plain that Chiotti was much more notorious and vociferous in his complaints than was Wittbrodt. Why, then, was it Wittbrodt who was laid off? As indicated above, the various reasons propounded by Respondent either are virtually factually nonexistent or are not credited. But the invalidity of those reasons cannot alone serve to impose culpability on Respondent herein, for the burden is on the General Counsel to prove all the necessary elements of his case. My review of all the record convinces me that Respon- dent possessed actual knowledge that it was Wittbrodt who filed the MIOSHA complaint and caused the investigation of December 7. The basis for this conclusion is the entry in Item 5 of the Complaint (G.C. Exh. 7) which reads that the hazard complained of is, in part, "ear piercing buzzer on phone to the body shop office." The record reflects that Wittbrodt was the only employee who had complained about the buzzer noise, and that particular complaint was known to Bert.37 Noronha testified, without contradiction, that he delivered a copy of the MIOSHA complaint directly to Causley at a time, uncontested by any party, to be prior to the layoff. No evidence was adduced to indicate surprise by Causley at any of the hazards listed in Item 5 of the MIOSHA complaint. In these circumstances, it is plausible to believe that Causley was aware of the nature of the complaints even before December 7 and that he readily could, and did, identify Wittbrodt with the complaint and Noronha's presence. Indeed, this is the most logical explanation of what occurred immediately before the layoff and explains the confused, self-effacing, elusive testimony of Torres, Bob, and Bert relative to whether there had been a decision made at the December 7 management meeting to lay off Wittbrodt. The above analysis makes it probable that no such decision had been :fi Wiese Plow Welding Co., Inc., 123 NLRB 616, 618 (1959). :17 During Bert's cross-examination: Q. (By Mr. Lewis) Now, it is true, is it not. Mr. Strickroot, that made at all, but was instead precipitated by Causley's observation of the nature of the hazards listed on the MIOSHA complaint form. That observation signaled that the complainant was Wittbrodt. Causley's knowledge is, of course, imputable to Respondent. Accordingly, I find that Respondent had knowledge of Wittbrodt's concerted activity prior to laying him off. E. Conclusion Upon all the foregoing, I find that Wittbrodt was engaged in protected concerted activity by expressing his various complaints to Respondent's supervisory personnel and by filing the MIOSHA complaint; that Respondent was aware of that activity; and that by laying him off on December 7, 1976, Respondent interfered with, restrained, and coerced employees in the exercise of their rights guaranteed in Section 7 of the Act and, hence, violated Section 8(a)(1) of the Act. 111. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section II, above, occurring in connection with Respondent's opera- tions described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. IV. THE REMEDY Having found the Respondent has engaged in the unfair labor practice alleged in the complaint, it will be recom- mended that Respondent cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. It having been found that the Respondent interefered with, restrained, and coerced employees in violation of Section 8(a)(1) of the Act by having laid off, on December 7, 1976, John P. Wittbrodt for having engaged in protected concerted activity, my recommended Order will provide that Respondent offer him immediate and full reinstate- ment to his former job, or, if that position no longer exists. to a substantially equivalent position, without prejudice to his seniority and other rights and privileges and other emoluments of employment, and make him whole for any loss of earnings he may have suffered as a result of Respondent's unlawful conduct, by payment to him of a sum equal to that which Wittbrodt normally would have earned, absent Respondent's unlawful conduct, from the date of his layoff to the date of Respondent's offer of reinstatement, with backpay and interest computed in accordance with the Board's established standards con- tained in F. W. Woolworth Company, 90 NLRB 289 (1950); and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). It having been found that the Respondent interfered with, restrained, and coerced employees in the exercise of sometime in or around October of 1976 Mr. Wittbrodt complained about the noice of a telephone buzzer in the place where he worked? A. Correct. 131 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their rights guaranteed in Section 7 of the Act by laying off an employee for having engaged in protected concerted activity, my recommended Order will require Respondent to cease and desist from such activity. Because of the character of the unfair labor practice found herein, my recommended Order will provide that Respondent cease and desist from, in any other manner, interfering with, restraining, and coercing employees in the exercise of their Section 7 rights. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Jim Causley Pontiac, Division Jim Causley, Inc., the Respondent, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By laying off John P. Wittbrodt on December 7, 1976, because he complained about conditions at work and filed a complaint with the Michigan Department of Public Health, Division of Occupational Health, Respondent interfered with, restrained, and coerced employees in violation of Section 8(a)( ) of the Act. Upon the above findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 3 8 The Respondent, Jim Causley Pontiac, Division Jim Causley, Inc., Detroit, Michigan, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Interfering with, restraining, or coercing employees by laying them off because they engage in protected concerted activities. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed in Section 7 of the Act, except to the extent that such rights might be affected by a lawful union security agreement in accord with Section 8(a)(3) of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer John P. Wittbrodt immediate and full reinstate- ment to his former job, or, if that position no longer exists, to a substantially equivalent position of employment, without prejudice to his seniority or other rights and privileges and other emoluments of employment; and make him whole, in the manner described above in the section entitled "The Remedy," for any loss of pay or other benefits suffered by reason of Respondent's unlawful conduct found herein. (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 the amount of backpay due under the terms of this Order. (c) Post at its body shop and sales and service areas at its 17677 Mack Avenue, Detroit, Michigan, location, copies of the attached notice marked "Appendix."3 9 Copies of the notice, on forms provided by the Regional Director for Region 7, after being duly signed by Respondent's authorized representative, shall be posted by the Respon- dent 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 ensure 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 Respondent has taken to comply herewith. 3" In the event no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommend- ed 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. 19 In the event this Order is enforced by a judgment of the 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties had the opportunity to present evidence, it has been decided that we violated the law. We have been ordered to take certain steps to correct our violations and have been ordered to post this notice. We intend to abide by the following: We notify you that the National Labor Relations Act gives all employees these rights: To engage in self-organization To form, join, or help unions To engage in collective bargaining through a representative selected by you To act together for collective bargaining or for other mutual aid or protection To refrain from any and all these things. WE WILL NOT, by laying off any employee or by any like or related means, interfere with, restrain, or coerce employees in the exercise of any of the above rights. WE WILL NOT, in any other manner interfere with, restrain, or coerce any of our employees because they file complaints with the Michigan Department of Public Health, Division of Occupational Health, or because they engage together in other activities de- signed to improve their working conditions when those activities are protected by the National Labor Rela- tions Act. 132 JIM CAUSLEY PONTIAC WE WILL offer John P. Wittbrodt immediate and full reinstatement to his former job with us, without loss of seniority or other rights and benefits or, if that job no longer exists, then we will offer him employment to a substantially equivalent position; and WE WILL pay to him all moneys lost, plus interest, as a result of our laying him off on December 7, 1976. JIM CAUSLEY PONTIAC, DIVISION JIM CAUSLEY, INS. 133