Kawasaki Motors Corp.

KAWASAKI MOTORS CORPORATION Kawasaki Motors Corporation USA and International Union, Allied Industrial Workers of America, AFL-CIO. Cases 17-CA-7357 and 17-CA-7423 August 31, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND WALTHER On March 28, 1977, Administrative Law Judge James L. Rose 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 only to the extent consistent herewith. The Administrative Law Judge found the discharge of DuPont on October 7 and of Rumbaugh on October 8 to be discriminatory and the incidents of surveillance of union meetings thereafter on October 21 and in November to be an 8(a)(1) surveillance. We do not agree, and we shall dismiss the complaint in its entirety. Although, as the Administrative Law Judge found, Respondent had knowledge of Rumbaugh's union sympathies at least since August 1976 through Personnel Manager Summers, the latter's recommen- dation to discharge the two alleged discriminatees on October 6 because of the pact to punch each other's timecards was decided upon, without knowledge of specific names of the employees involved, based on a hypothetical question. In response to the question by Warehouse Foreman Dunlap, Summers identified the problem as constituting a violation of company rule 2, labeled it a "terminable offense," I and only then inquired who was involved. The incident that prompted the hypothetical question had occurred on the morning of October 6. Arriving for work about 7:05 a.m., Foreman Dunlap was advised by his secretary that Rumbaugh, one of four forklift operators in the warehouse, had not yet reported in. Thereafter Dunlap, in the course of consulting timecards for a timestudy report, noticed that Rumbaugh's card showed him as having been t The rules as printed provide as follows: Disciplinary action will be taken for any of the following work rules: . . . #2 Falsification of records or misrepresentation about material information. ... DISCIPLINARY ACTION Discipline may take any of the 231 NLRB No. 186 punched in at 6:50 a.m. 2 When Rumbaugh actually arrived about 7:25, Dunlap confronted him and asked for an explanation of the fact that his timecard showed him as having arrived at 6:50. Rumbaugh explained that DuPont, another forklift driver, had probably punched him in because his (Rumbaugh's) forklift "was gone." Later that morning Dunlap confronted DuPont, who admitted he had punched Rumbaugh's card "in" stating, however, that he had assumed that Rumbaugh was already at work. The Administrative Law Judge found the reasons for the discharge pretextuous partly because of an "established practice" of forklift operators to punch each other in and out due to the at least 300-foot distance from the timeclock to the location where they normally parked their forklifts, and that this commonplace practice among the four forklift drivers could not have escaped their supervisor's attention. Contrary to the Administrative Law Judge, however, our reading of the record discloses that punching each other's timecards in and out was not common practice to a majority of the employees who testified. Of the four warehouse employees, only DuPont and Rumbaugh so claimed. One other employee testified he had been asked to do so twice by DuPont and Rumbaugh and had done so the first time but had refused the second time-because timecards were "their own responsibility." An employee in another plant department testified that around September he had started to punch out for a fellow employee, but was stopped by his supervisor about 20 feet short of the timeclock and was asked what he was planning to do with both timecards. The employee testified he first tried to lie out of it, but finally admitted he intended to punch out both: whereupon the supervisor told him "don't do it," "that will get you a one way ticket out of here." This testimony was corroborated by the supervisor in question. We note, moreover, that on the past occasions when punching another employee in had occurred it had only been when the employee doing this for another employee or employees knee that the others were already in the plant-contrary to the facts in the instant case. Here, DuPont merely assumed that Rumbaugh was on the premises, when in fact he was not because he had overslept, as confirmed by employee Niederkofler who carpooled to work with Rumbaugh. In the circumstances, we view Respondent's rule 2 on falsification of records as one clearly applicable to what transpired here; a falsification which would following forms, depending on the seriousness of the offense and/or the number of times of occurrence: (a) Verbal Warning. (b) Wntten Warning, (c) Suspension, (d) Discharge. 2 The scheduled starting time for warehouse employees was 7 a.m.: the employees were instructed not to clock in more than 10 minutes earl. 1151 DECISIONS OF NATIONAL LABOR RELATIONS BOARD result in Rumbaugh being paid for 25 minutes of working time during which he was not even on the premises to carry out his usual duties. See Deven Lithographers, Inc., 224 NLRB 648 (1976), where an employee was terminated for having someone else punch out his timecard and the Board declined to find it discriminatory though he had in the past acted as a union observer. Inasmuch as employee DuPont actually violated the rule and employee Rumbaugh was the party beneficiary, we find that both discharg- es, made in furtherance of Respondent's policy to have its records accurately maintained without misrepresentation of material facts, were discharges for cause. The termination letters given the two employees characterized their action as a deliberate attempt to financially defraud the company which, in our view, it was. Accordingly, we shall dismiss the 8(a)(3) allegations. With respect to the surveillance issue, it appears that Supervisor Ebers drove through a Ramada Inn parking lot on October 21 looking for cars with company parking stickers, at a time when a union meeting was being held there. It also appears that, during November, Ebers stopped on the way home for a drink at a Holiday Inn at a time when employees were holding a meeting at that motel, apparently with the Board agent. Respondent con- tends that Ebers was a new supervisor who, in the first instance, was motivated only by personal curiosity, and that the second was coincidental in that Ebers was at the bar only because he had stopped for a drink and the location was directly on his way home, without having any knowledge that plant employees would be meeting there. As to that incident employee Meisinger testified that he had started into the bar for a drink and, upon seeing Ebers there, instead went downstairs to the meeting room. Ebers had "no recollection" of any employee confronting him in the bar. Although both instances constituted surveillance and/or the impression of it, we shall dismiss the complaint with respect to them in view of the notice posted by the Respondent in its plant about November 20. This notice disclaimed the actions of Supervisor Ebers and assured the employ- ees of their right to join or not to join the Charging Union, or any union, without supervisory interfer- ence. In our view, this voluntary posting by the Respondent was adequate to expunge the ill effects normally incident to surveillance activities of this sort. Accordingly, we shall also dismiss the 8(a)(l) allegations of the complaint. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the complaint herein shall be, and it hereby is, dismissed in its entirety. CHAIRMAN FANNING, dissenting: I would affirm the Decision of the Administrative Law Judge. With respect to the October 6 timecard incident, out of which the two 8(a)(3) discharges arose, I would make the following comments. Respondent's use of the new warehouse facility began only about 3 months before the incident in question. The ware- house has no timeclock of its own. Only the four forklift drivers were required to clock in and out, clerical employees were not required to do so. Because of the distance from the location of the parked forklifts to the separate building wherein the timeclock was housed, the forklift drivers had been permitted to park their autos near the forklifts and then ride the forklifts to the timeclock. Out of this, as the Administrative Law Judge found, grew "a common practice at least to punch each other out in the evening." Occasions where one driver did this for the other three are in evidence. In effect, clocking out for another driver or drivers saves some worktime and some forklift use. DuPont had clocked Rumbaugh in on a previous occasion when Rumbaugh, though present to Du- Pont's knowledge, had forgotten to punch in his timecard. Foreman Dunlap specifically testified that his hypothetical question to Personnel Manager Summers did not include "punching in even if that employee was not actually at work," yet the discharge letter to DuPont refers to "deliberately" punching the card of Rumbaugh 25 minutes before he reported for work, and the letter to Rumbaugh refers to reporting 25 minutes late "without notifying your supervisor and prompted another employee to punch your time card before your actual time of reporting." In fact, however, inasmuch as Rum- baugh's forklift was missing from its usual parking location, DuPont had every reason to assume, as he had correctly done in the past, that Rumbaugh in fact was at work but had forgotten to punch in his timecard again. Rumbaugh did not have a reputation for tardiness. In fact Foreman Dunlap testified that Rumbaugh's absentee record before coming to work in the warehouse was "nothing out of the ordinary" and there were only two instances of tardiness since working in the warehouse-"maybe 5 minutes or so." DuPont had never been tardy. Yet on the morning of October 6 Dunlap's secretary-who did not testify- advised him that Rumbaugh was not yet in. Dunlap 1152 KAWASAKI MOTORS CORPORATION testified that she did not tell him how she became aware of that fact, or why. He could not recall ever instructing her to see if employees were there on time and working. The question thus arises as to whether Rumbaugh's known union sympathies played a part. Not only had Rumbaugh been active in the abortive Teamsters campaign some months earlier, but in August he had discussed his union leanings with Personnel Manager Summers (as Summers himself admitted), and in September he had shown Dunlap a cop)' of the Lincoln Gazette, containing an article on the unionization of an area plant, observing that it would probably be good for the employees. Dunlap recalled this latter incident, as did other employees who were nearby. That Rumbaugh himself may have made an effort not to be too obvious about his in-plant activities in the then-current organizing drive by the Charging Union, as contended by Respondent, is beside the point. Rumbaugh's prounion stance was well known apart from his current activity, which was substan- tial. During a meeting in May between employees and Rumbaugh's then supervisor, concerning em- ployee cooperation, Rumbaugh raised the question as to whether or not the proper employees were being upbraided, inasmuch as he considered that they (including himself) were the ones doing the most work. In response to his question, the supervisor walked over directly in front of him and asked: "Do you or do you not agree that there is union antagonism in this plant?" Moreover, in the ware- house itself there were only four forklift drivers, all of whom apparently discussed union leanings to some extent with Foreman Dunlap; thus, at least, the warehouse situation is closely analogous to a "small plant" where Respondent's knowledge of an employ- ee's union activity is easily inferred. Before the workday ended on October 6, Dunlap called the four forklift drivers together and told them they were responsible for their own timecards, they were not to punch each other in or out, and they were no longer to ride their forklifts to the timeclock. In effect he gave a verbal warning with specific instructions with respect to timecard responsibility in the future. However, later that same day, Dunlap went to the personnel office-"apparently to clarify whether he acted correctly" as the Administrative Law Judge concluded-put his hypothetical question, got a "terminable offense" response, and finally revealed who the employees were. The fact that he used a hypothetical question and received a discharge I Forklift operator Standley testified that Dunlap's secretary) had asked him on a prior occasion if he knew whether Rumbaugh swas clocking in or out for someone else, or if Bob (DuPont) was Standley testified he replied that he did not know He could not recall when the event had occurred. recommendation before Summers asked the names of those involved-like the fact that Dunlap's secretary had advised him that morning that Rum- baugh was not in3-strongly suggests that Respon- dent was actively seeking a pretext to discharge Rumbaugh because of his known union activity. Moreover, Respondent's rule 2 on falsification of records has been the subject of lesser discipline imposed by the Respondent, as shown by its own exhibits reflecting 1975 and 1976 instances. As applied to a series of occurrences on four separate days wherein an employee claimed to have done more welding than he actually did, a 3-day suspen- sion was the discipline imposed. For requesting time off for a nonexistent dental appointment, a written warning was the discipline. For leaving work on the pretext of being ill, after receiving two written reprimands regarding attendance-one of which threatened termination if the employee's attendance and attitude were not improved-an employee was finally terminated. In all three cases, deliberate falsification was involved. By contrast, in the instant case both Rumbaugh and DuPont readily admitted that DuPont had punched in Rumbaugh's timecard in the belief that he was there at the time. There is no evidence of an "arrangement" to do so to disguise the absence of the other. Dunlap's incident report of October 2 on Rumbaugh quotes the latter, when asked why DuPont would have done such a thing, as saying "it was agreed that since the time clock was located so far away" from the work area that whoever reported for work first would punch the other in. The incident report of DuPont also gave the distance from the timeclock as the reason for the arrangement. Thus, in my view, the pretext result reached by the Administrative Law Judge here is well supported by the record. It is noteworthy that Respondent's 28 rules contain some quite specific prohibitions, for example: against gambling or fighting on company property, or sleeping during working hours, but none that specifically mentions timecards. In Deven Lithographers, relied on by my colleagues, there was a sign directly over the timeclock warning employees about not clocking out for others. There was no such sign here, in addition to the absence of any specific mention of timecards in Respondent's own rules. Nor is this the case of a timecard violation being viewed by the Administrative Law Judge as a "minor infraction" of the rules.4 Here there was no articulat- ed rule on timecards; instead, there appears to have been an established practice of the employees in the I See also N.LRB. v. Agawam Food Marl, Inc., 424 F.2d 1045 (C.A. I. 1970). where the court observed that the company handbook warned about misconduct with respect to timecards and viewed persistence in denying an offense as magnification of it. 1153 DECISIONS OF NATIONAL LABOR RELATIONS BOARD warehouse, at least, punching out for others, a practice apparently condoned by Respondent until it bade fair to work to the advantage of a known union adherent. But even judging this case simply as a clear-cut violation of Respondent's rule 2 on falsifi- cation of records, the Respondent has enforced it far more rigorously in this instance than in other recent applications, which in itself is indicative of discrimi- natory intent. I would therefore affirm the 8(a)(3) violations found by the Administrative Law Judge and order the usual reinstatement and make-whole remedy for the two 8(a)(3)'s. As to the surveillance issue, I also agree with the Administrative Law Judge that a simple posting of a partial disclaimer does not remedy the 8(a)(1) violations committed by Supervisor Ebers. Ebers conceded that he did in fact go to the Ramada Inn on October 21 and viewed the cars in the parking lot to see how many employees from the company were there for the union meeting. The record indicates that he not only looked for company stickers on the automobiles, but also in some instances opened the doors and looked inside to try to determine to whom the vehicle was registered. He made two passes through the parking lot in this manner. My col- leagues would dismiss this aspect of the complaint because Respondent posted a notice concerning it, and in their view this voluntary posting by the Respondent was "adequate to expunge the ill effects" of the surveillance. I strongly disagree. First, the notice was not posted until slightly over a month after Ebers' flagrant surveillance at the Ramada Inn. Second, the notice was posted for only "about a month" rather than the Board's normal 60-day posting requirement-thus further diminishing its effectiveness. However, there is a more basic flaw present here and that is that, while Respondent concedes that Ebers drove through the parking lot, it asserts in its notice that he was not instructed to do so and the Company therefore disclaimed any of Ebers' actions. The notice went on to state that the Company would not interfere with the employees' rights to join or not to join a union, but-contrary to any notice posted pursuant to Board Order-specifi- cally stated that "we don't believe that these actions . . .were coercive or illegal." (Emphasis supplied.) Thus, in my view, the Respondent's ihotice utterly fails to cure Ebers', and hence Respondent's, admitted conduct or to adequately assure employees of the protection from such activities in the future which Board notices are intended to provide. I therefore also dissent from my colleagues' dismissal of the 8(a)(1) allegations of the complaint. DECISION STATEMENT OF THE CASE JAMES L. ROSE, Administrative Law Judge: This matter was heard before me on February 8 and 9, 1977, at Lincoln, Nebraska, upon the General Counsel's complaint which alleged that on or about October 6. 1976,1 the Respondent discharged Gary Rumbaugh and Robert DuPont in violation of Section 8(a)(3) of the National Labor Relations Act, 29 U.S.C. § 151, et seq., as amended. It is also alleged that Supervisor William Ebers engaged in surveillance and/or created the impression of surveillance of union activity on October 21 and November 10, in violation of Section 8(aX I) of the Act. Upon the record as a whole, including my observation of the witnesses, briefs, and arguments of counsel, I hereby make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW I. JURISDICTION The Respondent is a corporation engaged in the manufacture and sale of motorcycles and other recreation- al vehicles. At its Lincoln, Nebraska, facility it annually receives goods, products, and materials directly from points outside the State of Nebraska valued in excess of $50,000 and in turn ships directly to points outside the State of Nebraska products valued in excess of $50,000. Respondent admits, 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 LABOR ORGANIZATION INVOLVED The Respondent admits, and I find, that International Union, Allied Industrial Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Factual Outline In late 1975 several employees, particularly including Rumbaugh, began discussing the possibility of seeking union representation. They contacted a Teamsters local in Omaha and began working with that union to solicit authorization cards. However, this organizational cam- paign aborted in the early spring of 1976 when the employees determined that they did not want the Team- sters to represent them. Within a couple months, employees contacted the Charging Party and a second organizational campaign commenced which continues to the present. At least one meeting with union organizers was held in May among employees. Authorization cards and other literature were passed out at the plant gate by nonemploy- ees, and throughout the plant by employees, normally one in each department. The principal union proponent in the All dates are in 1976 unless otherwise indicated. 1154 KAWASAKI MOTORS CORPORATION warehouse was Rumbaugh, who testified that he passed out between 100 - 200 authorization cards. The warehouse, which is adjacent to the production building, was opened for business in June. The employee complement in the warehouse at that time, and through the material period here, consisted of Roger Dunlap, the foreman, and forklift operators Rumbaugh, DuPont, Tim Pray, and Neil Standley. Working in the office of the warehouse were four or five clerical employees. In early August, Robert Summers was hired as the personnel manager for manufacturing, with his first working day Monday, August 15. In fact, however, he went to the plant on Saturday, August 13, the day of the company picnic, in order to get acquainted with some of the employees. On this day he first met Rumbaugh, who was involved with directing the picnic. During their meeting Summers asked Rumbaugh how he liked working for the Company. Rumbaugh told him, in effect, that while he liked to work, he did not get along too well with his supervisors. Summers testified: "And he indicated that it was because he was sympathetic to the union." Summers told him that such should be no problem and, if he did his work, he would get along all right. On the morning of October 6, Rumbaugh, who alternat- ed carpooling with Ronald Niederkofler, overslept. Nieder- kofler called him a few minutes before 7 a.m. Rumbaugh picked up Niederkofler and they went on to the plant arriving at approximately 7:25 a.m. Dunlap testified that he arrived for work on October 6 about 5 minutes or so after 7 and was at that time advised by his secretary that Rumbaugh had not reported in. Dunlap did not say or do anything about this information and he went about his work, which included taking data off the timecards for purposes of a timestudy report. It was at this time he found that Rumbaugh's card had been punched in at 6:55. Thus, when Rumbaugh in fact arrived Dunlap had his card and confronted him, asking how it was that his card had already been punched in. Rumbaugh admits to stating that Bob (meaning DuPont) probably did it. Dunlap testified that Rumbaugh went on to say that they had an agreement whereby the one who arrived first would punch the other in. Rumbaugh denied he said this to Dunlap or that he and DuPont in fact had such an agreement. In any event, Rumbaugh was told to go on to work. Later that morning, Dunlap confronted DuPont about this incident. DuPont admitted to Dunlap that he had in fact punched Rumbaugh in, believing that Rumbaugh in fact was already at work. It should be noted that the timeclock is located near the entrance between the warehouse and the rest of the plant, a distance of some 120 yards from the entrance used by the warehouse employees. They could use the main parking lot, come to work through the plant entrance, and pass by the timeclock on the way to their work stations. But, as they requested of Dunlap, they use the warehouse parking lot and enter the warehouse through the warehouse door. This is very close to where they park their forklifts. The point of all this is: according to the testimony of all the witnesses, including those called by the Respondent, upon arriving, the employees would get on their forklifts and ride to the timeclock. In the evenings they would punch out before parking their forklifts. Beyond that, it was a common practice at least to punch each other out in the evening. While Dunlap disclaimed any knowledge that employees ever punched each other in or out, I do not believe him. The overwhelming mutually corroborative testimony of both the General Counsel's witnesses and those employees called by the Respondent shows that Dunlap was in fact present on more than one occasion when one of the four warehouse employees stated that he would punch out the others and in fact did so. Following the events on October 6, Dunlap testified that he left the plant to go to a luncheon meeting of the Lincoln Transportation Society of which he is the secretary-treasur- er. Thus, he did not return to the warehouse until about 2 p.m. at which time he again had a conversation with DuPont concerning the timecard incident. Then a few minutes before the quitting time of 3:30, Dunlap called together the four warehouse employees and told them that they were responsible only for their own timecards. They were not to punch each other in or out, and they were no longer to ride their forklifts to the timeclock-this apparently because he had received complaints about this. About 4 p.m. Dunlap went to the personnel office and talked to Roger Leapley, the assistant personnel manager. According to their testimony, Dunlap proposed a "hypo- thetical question" asking what Leapley would do if he had learned that two employees had agreed to punch each other in and out. Leapley stated that he felt this was a violation of company rules and a dischargeable offense. Leapley then called in Summers and again the "hypo- thetical" question was posed. Both Leapley and Summers testified that Dunlap included in the hypothetical question that the agreement included punching in even if that employee was not actually at work. Dunlap did not so testify. In fact he testified that he did not even assume that to be the case. During this discussion Summers went to his office to get a copy of the rule book. He returned and pointed out that the hypothetical situation would be a violation of employee rule 2, forbidding falsification of company records, and that such is a "terminable" offense. During this conversation Summers asked who the employees in question were and Dunlap told him. Sum- mers then advised Dunlap that if his facts were correct he should check with his immediate supervisor, Donald Weagel, and initiate discharge proceedings. Dunlap further testified that in fact he called Weagel that evening, Weagel having just returned from a trip to California, told him the facts of the situation, and Weagel stated that the employees should be discharged. On the morning of October 7, Niederkofler was to drive but this time he overslept. Rumbaugh called Niederkofler, was picked up, and as they were on their way to be late for the second day, they determined not to go in but to call in sick. Thus Rumbaugh did not go back to the plant until October 8 and was not informed of his discharge until that day. 1155 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On October 7 DuPont was told by Dunlap that he was being terminated. Dunlap said something to DuPont about feeling that DuPont had been "a victim of circumstance" but that there was nothing that he could do-that both he and Rumbaugh had to be discharged. When asked to explain this, Dunlap stated he felt that DuPont was a better worker than Rumbaugh and on some occasions felt that Rumbaugh led DuPont to do things that he should not. B. Contentions of the Parties The General Counsel contends that Rumbaugh was discharged because of his known and substantial activity on behalf of the Union. The General Counsel further argues that, while DuPont was not discharged for his union activity, his discharge was so intertwined with that of Rumbaugh that, as Rumbaugh's discharge was a violation of Section 8(a)(3), so necessarily was DuPont's. The Respondent contends that the discharges were for cause. When DuPont, pursuant to an agreement, punched in Rumbaugh when Rumbaugh in fact was not at work, his act was one of "falsifying records and defrauding the Company." The Respondent further denies that Rum- baugh's union activity was not known to Dunlap, and in any event union activity was not a consideration in effecting the discharges. IV. ANALYSIS AND CONCLUDING FINDINGS A. The Unlawful Discharges There is no dispute here that in fact an organizational campaign was in progress at the time of the discharges, nor is there any question that Rumbaugh was one of the active campaigners. Although the Respondent denies that it had knowledge of Rumbaugh's union activity until December 2, Summers admitted that, when first meeting Rumbaugh on August 13, Rumbaugh said that supervisors were unfriendly because of his activity on behalf of "the Union." For reasons unexplained by Summers, he repeated the sub- stance of this conversation with Rumbaugh to a group of employees in December at the time he was discussing Rumbaugh's discharge. Whatever Summers' motive, he told employees he knew of Rumbaugh's union activity prior to his discharge. The General Counsel also argues that, as the warehouse only has four employees, and, since Rumbaugh was the union organizer for the warehouse, passing out numerous authorization cards and other union literature, his union activity must have been known to the Company. While an inference of union activity from the smallest of a plant is sometimes appropriate, such is unnecessary in this matter. It is clear that Summers was in fact the management official responsible for determining to discharge Rum- baugh and DuPont; and Summers in fact knew of Rumbaugh's union activity. Thus, the crucial question is whether in fact Rumbaugh's union activity was a contributing factor in the determina- tion to discharge him. It is fundamental that the Respon- dent has the right to discharge its employees for any reason or no reason at all, except for their engaging in union or protected concerted activity. If, however, the asserted reason for discharging an employee is not reasonable, then that fact is evidence that the true motive lies elsewhere. "If he [the trier of fact] finds that the stated motive for a discharge is false, he certainly can infer that there is another motive." Shattuck Denn Mining Corporation (Iron King Branch) v. N.L.R.B., 362 F.2d 466, 470 (C.A. 9, 1966). In short, unlawful motive may be inferred from the total factual situation, and I so infer for the following reasons. The Respondent's witnesses professed that the sole and only reason Rumbaugh and DuPont were discharged was because DuPont had clocked in Rumbaugh at a time when Rumbaugh in fact was not at work; and that this had been done pursuant to some kind of a prearranged agreement. By their act, therefore, these employees were defrauding the Company and falsifying records. It is noted, however, that Dunlap did not testify that the agreement was that these employees would punch each other in even though they were not at work. Nor did he even assume such was their agreement. His stated under- standing was that the first to arrive would punch the other one in. Thus, there is an internal conflict between the Respondent's witnesses concerning precisely what the dischargeable offense was. Summers and Leapley take the position that it was the agreement of these two employees to punch each other in even though one was not at work. Dunlap, however, testified that the dischargeable offense was simply the fact that these employees punched each other in and out, although he stated that Rumbaugh's work record represented 15 to 20 percent of the cause as well. There is evidence of previous instances where Rumbaugh had been reprimanded, once for horseplay, and another for sleeping. The day before his discharge, Rumbaugh was alleged to have come back from lunch late, although he was not reprimanded. Thus, Dunlap testified that some consideration was given to Rumbaugh's record; however, Summers said the card punching incident was the only matter considered, not- withstanding that the termination letters made reference to each employee's past record. The termination letters referred to the timecard incident and went on to say, "We consider this a flagrant and wilful violation of company rule 2, which states disciplinary action will be taken for falsification of records. We also consider this a deliberate attempt to financially defraud the Company." The reasons given in the termination letters are essential- ly the same as testified to by Summers. I find them pretextuous. First, there is no evidence that DuPont deliberately attempted to defraud the Company and cover for Rum- baugh. DuPont told Dunlap that he thought Rumbaugh was already at work. From Dunlap's testimony it is clear he believed DuPont. Neither DuPont nor Rumbaugh attempt- ed to hide the fact that DuPont had punched Rumbaugh's timecard. No evidence of willfulness to defraud was brought to Summers, nor was there any. Company rule 2 says, "Falsification of records or misrepresentation about a material fact." 1156 KAWASAKI MOTORS CORPORATION This rule could be interpreted, as Summers says he did, to mean that employees should not punch each other's timecards. But such an interpretation is not inexorable or even particularly logical. If an employee is at work, the fact that another employee punches his timecard does not mean that the card is falsified or there has been a material misrepresentation. Since there is no evidence of a willful attempt to defraud, a fact which the Respondent tacitly concedes, noting that DuPont assumed Rumbaugh was at work, the alleged rule violation must simply have been the "agreement" to punch each other's timecards. Of significance was the practice of warehouse employees in punching each other in and out. While Rumbaugh and DuPont testified that only rarely did one employee punch another in, it was a weekly occurrence that one employee would punch out one or more of the others. I find this to be the case based on the credited testimony of witnesses for both the General Counsel and the Respondent on this issue. I further find, based on the testimony of all these employees, that Dunlap must have known of this practice. Indeed, the practice was open, notorious, and occurred at times when Dunlap was talking to the employees whose cards were being punched out by another. Dunlap testified that he "could not remember" any such incidents although he did not deny that they occurred. I specifically do not believe that Dunlap does not remember these incidents. Rather, given that the timeclock was at least 300 feet from the warehouse door where the employees entered and that there were only four warehouse employees who Dunlap supervised, I conclude that this practice testified to as being commonplace could not have escaped his attention. Further, even if not advisable, the practice was not unreasonable given the long distance from the employees' work station to the timeclock. Finally, not even the Respondent's witnesses contend that employees had been specifically advised not to punch each other in or out. Of the 28 rules in the employee rule book governing on-the-job conduct, none states that employees should not, in fact, punch each other in or out. Irrespective of the Respondent's policy, even if unarticu- lated, and the reasonableness or unreasonableness of the employees' practice, this practice among warehouse em- ployees must have been known to Dunlap and therefore to the Respondent. To discharge two employees for engaging in an activity which was common, even though in this instance it was misapplied because Rumbaugh was not at work when DuPont thought he was, is just patently unreasonable. There was no particular necessity to discharge employees for punching each other in or out, where such was a first violation of an otherwise unarticulated company rule. The Respondent submitted exhibits showing that it uses lesser forms of discipline. In similar, although not in identical, situations the Respondent has given written reprimands and 3-day suspensions to employees before discharging them for violation of company policy. As noted above, in an apparent attempt to buttress its case, the Respondent also referred in its discharge letter to other incidents engaged in by Rumbaugh and DuPont. One such incident allegedly occurred the day before Rumbaugh's discharge, when he had returned from lunch 25 minutes late. The "incident report" is dated October 5. Summers, however, and Dunlap admitted that the report was not written until after Rumbaugh's discharge. They did not explain why it was necessary to have an incident report in the file of somebody who had been discharged, where that incident, at least according to Summers, was not involved in the discharge. A fair analysis of Dunlap's testimony is that he did not intend to discharge Rumbaugh and DuPont. He talked to both, told them not to do it anymore, then he talked to the entire warehouse crew. He told them not to handle each others' timecards and not to drive their forklifts to the timecard area. From his testimony it appears that he had solved the problem and such certainly seems reasonable. Then he went to the personnel manager and his assistant apparently to clarify whether he acted correctly. It was during this conversation, I find, that Summers made the determination to discharge Rumbaugh and from this the determination also to discharge DuPont because, as Dunlap expressed it to DuPont, they could not discharge one without the other. Given the inconsistencies in the alleged reasons for discharging Rumbaugh and DuPont, and the fact that discharge is clearly too severe a penalty in view of the employees' practice, I conclude that the reason asserted by the Respondent for discharging Rumbaugh was pretextuous. The only motive reasonably attributable to Summers in directing the discharge of Rumbaugh is his known union activity. I therefore conclude that, when Summers told Dunlap to discharge Rumbaugh on October 6, he did so because he knew that Rambaugh was engaging in organi- zational activity on behalf of the Union. Accordingly. Rumbaugh was discharged in violation of Section 8(a)(3). Since the record shows, indeed, Dunlap admits, that DuPont's discharge was intertwined with Rumbaugh's and that he was discharged because Rumbaugh was, it follows that the discharge of DuPont was also violative of Section 8(a)(3). DuPont's discharge was motivated by union animus irrespective of the fact that DuPont himself was not particularly active on behalf of the Union. The Respondent argues that Dunlap himself had no particular animus toward the Union, or unions in general. and that the Respondent could have but did not discharge Rumbaugh in the spring for pretextual reasons. None of this evidence, however, is particularly relevant to this situation inasmuch as I can conclude that the determina- tion to discharge Rumbaugh was made by Summers and not by Dunlap or anyone else. It was Summers, the new personnel manager, who knew of Rumbaugh's union activity and who, when evidence was brought to him of the timecard incident, told Dunlap to initiate discharge proceedings, without even investigating the total factual situation. Summers' testimony that Rumbaugh's union activity did not enter into his determination is simply not persuasive. This is particularly so where he couched the reason for discharge in the strongest conceivable lan- guage-defrauding the Company and misrepresenting material facts. 1157 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Impression of Surveillance William Ebers, a first-line supervisor, testified that, out of curiosity, he did in fact go to the Ramanda Inn on October 21 and viewed the cars in the parking lot to see how many employees from the Company were there for the union meeting. He testified that he believes he made two passes through the parking lot. Such was the testimony of two employees who saw him. From this testimony it is clear that Ebers did in fact engage in surveillance of employees' union activity and certainly thereby created the impression of doing so. This activity must be imputed to the Respondent and is violative of Section 8(a)(l). With regard to the November incident, Ebers testified that he was simply sitting in the bar of the Holiday Inn after work not knowing that there was going to be a union meeting there that day. Unexplained, however, is why he was in a bar where he had never been before. The coincidence of Ebers being someplace he had never been at precisely the same time a union meeting was going on is too much to believe, particularly in view of Ebers' admitted activity in engaging in surveillance of the union meeting in October. I, accordingly, conclude that Ebers at least created the impression of surveillance by his presence at the Holiday Inn in November and by this act the Respondent additionally violated Section 8(a)(1). The Respondent argues, however, that, upon learning of Ebers' activity, it posted a notice claiming that Ebers was not authorized by the Company to engage in such activity and the Company disassociated itself from that activity. Such, however, does not remedy the unfair labor practice committed by the Respondent's agent. To do so requires more than a simple posting of a disclaimer. It requires also the posting of an official notice. Accordingly, I shall recommend that the Respondent be ordered to remedy these unfair labor practices in the traditional manner. Finally, I conclude that the above-defined unfair labor practices are unfair labor practices affecting interstate commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, it will be ordered to cease and desist therefrom and take certain affirmative actions designed to effectuate the policies of the Act, including offering immediate reinstatement to Gary Rumbaugh and Robert DuPont to their former positions of employment or, if those jobs no longer exist, to equivalent positions, without loss of seniority or other benefits and to make them whole for any loss of wages that they might have suffered as a result of the discrimination against them in accordance with the formula set forth in F. W Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). [Recommended Order omitted from publication.] 1158