Chrysler Corp.

Chrysler Corporation (Missouri Truck Plant) and Ste- ven Hollis. Case 14-CA-11266 May 29, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On November 17, 1978, Administrative Law Judge James L. Rose issued the attached Decision in this proceeding. Thereafter, the General Counsel and Re- spondent filed exceptions and briefs, and the Charg- ing Party filed cross-exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions, cross-ex- ceptions, and briefs and has decided to affirm the rul- ings, findings, and conclusions of the Administrative Law Judge to the extent consistent herewith.' We disagree with the Administrative Law Judge's conclusion that Respondent was not discriminatorily motivated when it disciplined employee Hollis on September 27, 1977. The record herein clearly shows, and the Administrative Law Judge found, that Re- spondent was discriminatorily motivated when it dis- charged Hollis on October 4, 1977, and that an opera- tive factor in his discharge was his engagement in protected activities that previous summer. The Ad- ministrative Law Judge likewise found that Respon- dent had expressed animus against Hollis' protected activities when it threatened him with discharge on September 28, 1977, a finding which we also adopt. Nevertheless, the Administrative Law Judge found that the sole basis for Hollis' discipline on the previ- ous day was "poor workmanship" and that it there- fore was not unlawful. A crucial factor omitted in the Administrative Law Judge's analysis is that, prior to his discipline, Hollis had caused a "work standards" grievance to be sub- ' We adopt the Administrative Law Judge's findings that Respondent vio- lated Sec 8(a)(3) and () by discharging employee Steven Hollis on October 4, 1977. We also adopt his findings that Respondent violated Sec. 8(aX I) by threatening employees with discharge because they distributed literature on behalf of a labor studies program and on behalf of the Chrysler Rank and File Caucus, an intraunion group primarily advocating interests of minority employees. We further adopt the Administrative Law Judge's finding that Respondent did not violate Sec. 8(aXI) b threatening employee Ernest Dean on December 2. 1977, as the basis of the threat was not related to Sec. 7 activity. In the absence of exceptions. we adopt the Administrative Law Judge's findings that Respondent did not violate Sec 8(aXI) by disciplining employee John May on March 6. 1978, and that it did not ask him to leave the employee parking lot on May 24. 1978, when he was passing out cam- paign literature for a candidate for union office CHRYSLER CORPORATION mitted, claiming that Respondent had installed addi- tional equipment which obstructed his work area and made the performance of his duties more difficult.2 The testimony shows that this grievance was pre- pared by Hollis' union steward and reviewed by Hol- lis prior to the start of his work shift on September 27. The grievance then was submitted to Foreman Kay- ser and signed by him later that day. However, just before Hollis' lunch break, Kayser approached Hol- lis, told him that he was putting him on notice for poor quality work, and immediately thereafter in- spected the work being performed by Hollis.3 Follow- ing the inspection, Kayser concluded that Hollis' work was of poor quality and issued him a -day dis- ciplinary layoff with time suspended. 4 While there is evidence that other employees had trouble with the obstruction of the work area caused by the additional equipment, Hollis was the only em- ployee to file a grievance with respect to the prob- lem.5 We agree with the General Counsel's general argument that the filing of this grievance was a moti- vating element in Kayser's decision to inspect Hollis' work and discipline him. Although Respondent as- serts that Hollis was disciplined as a result of a rou- tine inspection procedure, it is clear from the record that a supervisor had discretion with respect to in- specting an individual's work through the logging procedure, and there is no evidence that Respondent had planned to log Hollis' work that day prior to the submission of the grievance. Moreover, given that Kayser admitted that something probably could be found wrong in any inspection, it follows that it was almost preordained that deficiencies could be found in Hollis' work that night. Further evidence of Respondent's discriminatory motivation is revealed by the tight time framework within which Hollis was subject to pressure immedi- ately before his termination. On September 27 he re- ceived the -day layoff, which was followed by a threat of discharge the next day. Two days later, by Respondent's admission, the decision was made to fire him, and on October 4 he was discharged. With such close timing, and the particularly serious nature of his unlawful discharge on October 4, it is plain that the events which occurred during the week prior to his discharge were interrelated and that both his dis- charge and his discipline on September 27 were dis- criminatorily motivated. 2 This grievance was the culmination of a series of complaints by Hollis following the installation of this equipment: automatic paint spra)ers. This inspection process was referred to as logging. 4At the disciplinary interview held prior to the issuance of the written warning, Hollis cited the work standards grievance. which had been filed. as part of his defense. Kayser testified that Hollis was the onls I of the 10 employees he super- vised who filed a work standards grievance in 1977. In siew of this. we find it irrelevant that numerous grievances had been submitted either elsewhere in the plant or regarding issues other than work standards 242 NLRB No. 71 577 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We also disagree with the Administrative Law Judge's conclusions that Respondent did not violate Section 8(a)(1) by searching employee Ernest Dean at the plant gate on March 6, 1978, or by disciplining him for a plant rule violation on March 8. On March 66 Respondent's labor relations supervisor, Leo Lun- dergan, saw Dean operating a power sweeper. While he was observing Dean he saw him drive the sweeper up to another employee and give him some literature, which was recognized as a copy of the Chrysler Rank and File Caucus newsletter. Lundergan telephoned Don White, a general foreman, and informed him of this, and White said he would "get into it." At the end of Dean's shift, Dean was stopped at the plant gate as he was about to exit the premises with fellow employee John May. One of the plant guards instructed Dean to go into the guard shack, and when he did so he noticed that Foreman White was waiting inside. White instructed the guard to search a pack- age held by Dean. Dean described it as being a typing kit box which was about 1/2-3/4-inch thick.7 Ac- cording to Dean's uncontradicted testimony: At that time, you know, the guard asked me, you know, could he look in it and I in turn opened the box up. When I opened the box up, I showed him the contents. At that time Don White kind of threw up his hands, threw his hands in the air and then as I was, then the guard said something about that he heard I'd been distributing literature and just about that time I was closing the box back up and I was putting it back to my side and I had two of these newsletters here .... I had two of these which was attached to the back of the box and as I was taking them down, they stuck out the side. And that's when my gen- eral foreman, Don White he pointed to the lit- erature and said "That's it, that's it, that's it right there." And then, you know, he asked me would I give him one. I said, "No," I said, "you can't have one." At that time he said, "Wait." He said, "Let me go call labor relations." And he went over to the phone and he dialed the phone and he was talking to someone on the other end. He said, "Well, we got him out here." He said, "he's only got two of them and he won't give us one." And at that time the guard again asked me, he said, "Well would you give me one of them?" I said, "Sure, I'll give you one of them." And I gave him one. Then I heard Don White say, "Well, we got one of them now." I couldn't hear what was being said, then he said, he turned around. He said, "O.K. Let him go now. Send 6 The Administrative Law Judge incorrectly placed this date on March 8. 7The Administrative Law Judge incorrectly described it as a shoebox. him home now." He was talking to me and the other guy. He said, "Send them home now," he said, and don't worry about putting it on no re- port on him. He said, "I'll take care of that." I said, "Me and Labor Relations would take care of that." In view of the above testimony, it is clear that the Administrative Law Judge erred when he stated that "there is no evidence that the Respondent conducted this search because May or Dean had engaged in any activity on behalf of the caucus." On the contrary, Dean's unrebutted testimony shows that his distribu- tion of the newsletter was the sole cause for his 3/4- inch-thick box's being searched that day. The Admin- istrative Law Judge correctly stated that there are le- gitimate reasons for inspecting containers carried by employees leaving company premises, but Respon- dent has not defended its actions on any such grounds, and there is no evidence that Respondent regularly inspects packages of employees as they leave its premises. From Dean's testimony it is clear that Respondent was attempting to obtain copies of the newsletter through searching Dean. We find that this conduct violates Section 8(a)( I) of the Act, as it clearly serves to inhibit employees in the lawful distri- bution of such literature. We also find that Respondent violated Section 8(a)( I) of the Act when it issued Dean a written warn- ing on March 8. 1978. After White was informed that Dean was seen passing out caucus literature from the sweeper, he confronted Dean with the charge of dis- tribution of literature during work hours and told him that he was going to be issued a written warning for unauthorized distribution of literature.8 When Dean or his union steward responded by stating that he had done it on his break, White countered with the state- ment that, in that case. Dean was misusing company equipment by using the power sweeper during his break. After Dean questioned White regarding the details of his alleged misconduct, according to the in- formation obtained by Respondent, White stated that he had been told by top management to issue the written warning, but that White was going to change the warning to one for unauthorized use of company property.' On March 8 he received this modified writ- ten warning. In Chrysler Corporation, Eight Mile Road Stamping Pltnt,.) the Board held that shop rule 18, prohibiting unauthorized distribution of literature, did not ade- quately inform employees of their Section 7 right to distribute literature and as such was invalid on its I The basis for hi, warning was shop rule 18. which prohibits "unautho- rited distribution o literature, except such distribution during non-working time in nonsuork areas as is protected by the National Labor Relations Act." Shop rule 9 prohibits, in part. "the abuse or misuse or unauthorized use of any, property" o ned or held b the corporation. "I 227 NLRB 1256 (1977) 578 CHRYSLER CORPORATION face. As the enforcement of this rule was the basis for Respondent's decision to discipline Dean, we find that the decision to discipline Dean was violative of Section 8(a)( ). The fact that White modified the warning when he discovered that Dean had distrib- uted literature on his breaktime does not cure the un- lawfulness of Respondent's actions, as it remains that Respondent's instructions to White, which he carried out as consistently as the facts allowed, were based on enforcing an unlawful rule. Furthermore, given the fact that White caused Dean to he searched as he left the plant that day and evidence that several of Re- spondent's supervisors followed a company directive to confiscate copies of the Rank and File Caucus newsletter' it appears that the alleged plant rule vio- lations were merely pretextual grounds for Dean's written warning and that the true reason for this dis- cipline was Dean's distribution of copies of the news- letter. Accordingly, we find that Respondent violated Section 8(a)( 1 ) of the Act by maintaining and enforc- ing shop rule 18 and by issuing a written warning to Dean for the alleged misuse of company propert3. CON(CI.SIONS o() LAw I. By threatening employees concerning their in- terest in or activity on behalf of any subgroup of the Union. Respondent has violated Section 8(a)( 1 ) of the Act. 2. B suspending employee Steven Hollis for I day and by discharging him because he engaged in pro- tected activity. Respondent has violated Section 8(a)(3) of the Act. 3. By issuing a written warning to employee Ernest Dean because of his protected activities, Respondent has violated Section 8(a)(3) of the Act. 4. By maintaining and enforcing rule 18 of its "Guide to Good Conduct," Respondent has violated Section 8(a)( 1 ) of the Act. 5. By searching employees because they engaged in protected activities, Respondent has violated Sec- tion 8(a)( 1 ) of the Act. 6. The foregoing unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended. the National Labor Rela- tions Board hereby orders that the Respondent. 1 Employee Joe Zaidel testified that Foreman Timms old him he had been instriucted to confiscate copies of he Rank and File (aucu, neusletter and that other supervisors had confiscated copies Chrysler Corporation (Missouri Truck Plant), Fen- ton, Missouri, its officers, agents, successors, and as- signs, shall: I. Cease and desist from: (a) Threatening employees concerning their inter- est in or activity on behalf of any subgroup of the Union. (b) Discharging employees because of their interest in or activity on behalf of the Union or any subgroup thereof. (c) Suspending employees because they engaged in protected activities. (d) Issuing written warnings to employees because they engaged in protected activities. (e) Maintaining in effect. entforcing, or applying an3y rule or regulation prohibiting its employees from distributing literature during their nonworking time on behalf of any labor organization in any nonwork- ing area of the plant. (f) Searching employees because they engage in protected activities. (g) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action deemed necessary to effectuate the policies of the Act: (a) Offer Steven Hollis immediate and full rein- statement to his former job or, if that job no longer exists, to a substantially equivalent position of em- ployment, without prejudice to his seniority or other rights and privileges previously enjoyed, and make him whole for any losses he may have suffered as a result of the discrimination against him pursuant to the provisions set forth in the section of the Adminis- irative Law Judge's Decision entitled "The Remedy." (b) Withdraw and expunge from its personnel rec- ords the disciplinary suspension given to Steven Hol- lis on September 27. 1977. (c) Withdraw and expunge from its personnel rec- ords the written warning issued to Ernest Dean on March 8. 1978. (d) Forthwith rescind rule 18 of its "Guide to Good Conduct" to the extent that such rule prohibits its employees from distributing literature during their nonworking time, on behalf of a labor organization, in nonworking areas of its plant during their non- working time. (e) 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. (1) Post at its Fenton. Missouri, facility copies of 579 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the attached notice marked "Appendix."' 2 Copies of said notice, on forms provided by the Regional Direc- tor for Region 14, after being duly signed by Respon- dent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 14, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. IT IS FURTHER ORDERED that the allegations of the complaint in all respects not specifically found herein to be violations of the Act are dismissed. 's In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the Na- tional 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 participated and were given the opportunity to call witnesses, examine and cross-examine witnesses, and present evidence, it has been found by the National Labor Relations Board that we have violated the National Labor Re- lations Act, as amended. We have been ordered to stop this activity, to post this notice, and to abide by its terms. WE WILL NOT threaten employees with dis- charge because of their interest in or activity on behalf of United Auto Workers of America, Lo- cal 110, or any subgroup thereof. WE WILL NOT discharge our employees be- cause of their activity on behalf of the above- named labor organization or any subgroup thereof. WE WILL NOT suspend employees because of their activity on behalf of the above-named labor organization or any subgroup thereof. WE WILL NOT issue written warnings to em- ployees because of their activity on behalf of the above-named labor organization or any sub- group thereof. WE WILL NOT maintain, enforce, or apply a rule which prohibits employees from distributing literature during their nonworking time on be- half of any labor organization in any nonwork- ing area of the plant. WE WILL NOT search employees because of their activity on behalf of the above-named labor organization or any subgroup thereof. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the ex- ercise of rights guaranteed them by Section 7 of the Act. WE WILL offer Steven Hollis immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent po- sition of employment, without prejudice to his seniority or other rights and privileges previously enjoyed, and WE WILL make him whole for any loss of wages or benefits he may have suffered as a result of the discrimination against him, with interest. WE WILL withdraw and expunge from our per- sonnel records the disciplinary suspension given to Steven Hollis on September 27, 1977. WE WILL withdraw and expunge from our per- sonnel records the written warning issued em- ployee Ernest Dean on March 8, 1978. WE WILL rescind rule 18 of the "Guide to Good Conduct." CHRYSLER CORPORATION (MISSOURI TRUCK PLANT) DECISION STATEMENT OF THE CASE JAMES L. ROSE, Administrative Law Judge: This matter was heard before me on June 21, June 22, and July 20, 1978, upon the General Counsel's complaint which alleged principally that Steven Hollis, the Charging Party, was dis- charged on or about October 4, 1977,' in violation of Sec- tion 8(a)(3) of the National Labor Relations Act, 29 U.S.C. Section 151, et seq. Respondent is also alleged to have in- hibited employees' distribution of literature, to have disci- plined employees for having engaged in protected activity, and to have threatened employees, in violation of Section 8(a)(1) and (3) of the Act. Respondent generally denied that it committed any vio- lations of the Act and specifically contends that Hollis was discharged for cause in that he had falsified his employment application. In any event, Respondent contends that the discharge of Hollis is being handled under the grievance and arbitration procedure of the collective-bargaining agreement between it and Local 110, United Auto Workers of America (herein called the Union), and that jurisdiction by the Board should therefore be deferred. Inasmuch as the discharge of Hollis allegedly arose out of protected activity engaged in by him and others along with contemporaneous allegations of Respondent having violated Section 8(a)(1), I All dates are in 1977 unless otherwise indicated. 580 CHRYSLER CORPORATION this matter is not appropriate for deferral, and I decline to do so. General American Transportation Corporation, 228 NLRB 808 (1977). Upon the record as a whole, including my observation of witnesses and excellent briefs received from counsel for all parties, I hereby make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW I. JURISDICTION Chrysler Corporation (Missouri Truck Plant) (herein called Respondent) is engaged in the manufacture, assem- bly, and distribution of trucks at its plant located at Fenton, Missouri. During the course of its business, Respondent an- nually receives goods. products, and materials valued in ex- cess of $50,000 directly from points outside the State of Missouri. Annually Respondent ships directly to points out- side the State of Missouri finished products valued in excess of $50,000. Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZAIION INVOLSED The Union is the collective-bargaining representative for the some 3,800 rank-and-file employees of Respondent. These employees have been covered by successive collec- tive-bargaining agreements between Respondent and the United Auto Workers, including the current agreement ef- fective November 5, 1976, supplemented by local agree- ments between the Union and Respondent. I find that the Union is, and at all material times herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRAC ICES A. Background Since 1968 there has existed within the ranks of the Union a more or less formally organized faction the pri- mary purpose of which is to represent the interests of mi- nority employees within the Union. At all material times herein it has been titled the Rank and File Caucus. Among other things, the caucus members distribute literature urg- ing union members to take certain action with regard to the Union, including offering a slate for the election of union officers and during the summer of 1976 urging employees not to ratify the local agreements. Although the thrust of much of the General Counsel's case is that Respondent engaged in a systematic effort to undermine employees' activity on behalf of the caucus, in violation of the Act, the only evidence of any animus on the part of the Company with regard to such activity is the uncontradicted testimony concerning statements of Fore- man Lonnie Timms: when referring to caucus newsletters an employee had in his pocket, Timms said. "You can't have that shit in here"; and Timms stated, "I believe vou'll be fired if they see you passing it out." referring to a com- pany rule: and he stated that "the cornpan, took a dim view of the rank and file and anybody that read it."2 Other than this, however, there is no evidence of an particular animosity on the part of' the Cornpan3 toard the Rank and File Caucus. It is noted that the caucus had been in existence for some 10 years, and there Is no indica- tion or allegation that prior to the events alleged here Re- spondent sought in an, way to undermine the caucus or to inhibit employees from participating in it. Nor is there an', evidence of why the Company would, as alleged hb the General Counsel, set upon a course of conduct beginning sometime in the summer of 1977 through Nlias 1978 It in- hibit employees in the exercise of their protected right to participate in such a group. Steven Hollis was hired in the summer o 1976 ; a ternm- porart emplosec. He was laid off and then rehired on a permanent basis in larch 1977. In Ju1 he s as translferred to the job of a first-coat spra, painter. From that timne until his discharge on October 4. he , as invol ed in submitting number of grievances and was disciplined, ncluding recei - ing a I-da' suspension on September 27 (he did not in tfact lose a day's work) because of' poor korkimanship. DIuring this period Hollis also became active on behal'f of the cau- cus and generally active with regard to subminting griex- ances on behalf of fellow employees. He also w a ins ol ed in promoting time off for employees to take a labor studies course at a local junior college. In the summer of 1977 members of the Union engaged in an economic strike in connection with negotiating the local agreements referred to above. According to Respondent's labor relations super isor Leo Lundergan, word was re- ceived by the Compan that five named emplosees wvere leading an effort against ratification of the contract at the union meeting) Four of those employees Lundergan had known from previous dealings with them. He did not at that time know Steven Hollis. Apparentlx as a result of the efforts of these individuals ratification was delay ed. and the strike continued for another 11 days. Having received information that Hollis was involved in arguing against ratification and that he was identified as a "radical, communist and a scholar," Lundergan looked at his employment application. As none of these matters ap- peared on the application, he hired a priv ate inlestigation firm to check further into Hollis' background. In July Lun- dergan was informed that Hollis had attended the eniver- sity of Kansas, a fact which was omitted from his empl(ox- ment application. This was confirmed in writing from the University of Kansas in August. While Lundergan had in- structed his subordinates to attempt to find more, none sas forthcoming. and on October 4 Lundergan discharged 1iol- 2 This conversation ook place between Timms and emploees Jim Green and .le Zaidel. It is based upon the uncontradicied testimon ol Green and Zaidel, which I independently found to be credible Green also estified that the dav before the first da 5 of the hearing in this matter, he had alked to Timms, who stated that i he were called to esitfy. he oulkd state the ub- stance of the Ma) 6 conversation as related b) Green and Z.ldel lirares is a foreman but was not called by Respondent to be a vitness n this maltter. from which I can and do infer that his testimony would have been ads erse to Respondent's interc.,t. E.g.. Zaper Corporarion. 235 NLRB 1236 (1978) 3 There is some indication that at the ratificalton nleetlng here wa. ,onle disturbance, perhaps iolence. While this ma) hae been the cale here is no evidence that Hollis was involsed in it or hat such plaed ai?\ r.prt in Respondent's determination to discharge him 581 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lis because he had "falsified" his employment application by omitting his college attendance. B. Analysis and Concluding Findings 1. The discrimination against Steven Hollis It is fundamental that an employer may, without violat- ing the Act, discharge an employee for any reason or no reason at all except where motivated by the employee's ac- tivity on behalf of a labor organization or other activity protected by Section 7 of the Act. It is also fundamental that unlawful motive may be inferred from all the facts. Shattuck Denn Mining Corporation (Iron King Branch) v. N.L.R.B., 362 F.2d 466 (9th Cir. 1966). Here Respondent contends that the sole reason Lunder- gan discharged Hollis was because he omitted from his em- ployment application that he had attended college. When asked why, at the hearing, Hollis candidly testified that he did so on purpose because he had been denied em- ployment at other places because he was overeducated for the job for which he was applying. Certainly asking prospective employees to list all formal education is not unreasonable. Indeed, where one has accu- mulated, as in this case, 190 semester hours without having received a degree, such may be an indicator to the employer that the potential employee is not desirable. But we are not here dealing with the efficacy of the question on the em- ployment application but rather with the question of whether Respondent seized upon Hollis' omission as a pre- text to disguise its true motive for discharging him. From all the facts and circumstances, particularly the testimony of Leo Lundergan, I believe the omission was not the true reason for the discharge, but was an excuse to cov- er the true motive. If, in fact, as Lundergan testified, Re- spondent has an inflexible rule to discharge any employee who falsifies his employment application (Lundergan equates omission with falsification), surely he would have discharged Hollis in July, when he first became aware that the omission had been made. He did not discharge Hollis then or even confront Hollis with the evidence he had ob- tained. Rather, he waited some 3 months. Respondent ar- gues that the reason for this was in an effort to determine if there were additional falsifications on the application so that in the event of an arbitration proceeding, the Compa- ny's case would be stronger. But if this rationale of Respon- dent is accepted, then such means that the mere omission of college from an employment application is not considered by Respondent sufficient falsification to warrant discharge and that Respondent believed a discharge for this reason would not hold up before an arbitrator. There is no evi- dence Respondent had ever discharged an employee for this reason in whole or in part. From the testimony of Lundergan it is clear that Hollis came to his attention because of his activity in urging em- ployees not to ratify the contract, which had the effect of extending the strike for 11 days. The information received by Lundergan was that Hollis, in addition to being a radi- cal, was an articulate spokesman on behalf of his position. It is clear from Lundergan's testimony that he deemed Hol- lis to be a leader-indeed, an effective leader. That the strike was extended must necessarily have caused Respon- dent some damage. From all these circumstances I conclude that Lundergan sought an excuse to discharge Hollis because of his activity with regard to the contract ratification and not because he had omitted college attendance from his employment appli- cation. Inasmuch as the activity engaged in by Hollis was clearly protected by Section 7 of the Act and is clearly union activity, the discharge was necessarily violative of Section 8(a)(3) and (1) of the Act. The General Counsel further contends that Respondent was also motivated in discharging Hollis because of his sub- sequent activity in presenting grievances, participation on behalf of the Rank and File Caucus, and urging the Com- pany to allow employees time off to attend a labor studies course. While these matters may have had some impact on the Company's decision, there is no real evidence they did. The evidence in this matter is that Lundergan made the determination to discharge Hollis and that he was not par- ticularly involved in or even did not know about these other matters. Nor do I believe that when Respondent disciplined Hollis on September 27 for poor workmanship, such was violative of the Act, inasmuch as the record reveals that in fact Hollis had been doing poor work. It appears that Hollis had an excuse due to the installation of an automatic sprayer which got in his way and limited his ability to do his job. These matters, however, were taken up under the grievance procedure of the contract. It is noted that in 1977 some 5,000 grievances were filed, and by the time of the hearing there had been 2,800 filed in 1978. Yet there is no other indication of any employee hav- ing been discriminated against for filing grievances. Hollis had in fact done poor work, and absent any evidence of disparate treatment against him, I cannot conclude that the discipline of him was unlawful. One other factor involved in Hollis' discharge needs to be mentioned. Even absent a finding of pretext, from which I infer the unlawful motive, I would nevertheless conclude that his discharge was violative of Section 8 (aX3) because the causative event leading to Respondent's discovery that Hollis had "falisified" his application was his participation in the union meeting arguing against contract ratification. Inasmuch as this activity was clearly protected by Section 7 of the Act and since Section 8(a)(1) prohibits employers from interfering with or coercing employees the exercise of the rights guaranteed them by Section 7, the Company's discharge of Hollis intertwined with and arising out of his protected activity necessarily was violative of the Act. American Motors Corporation, 214 NLRB 455 (1974). 2. The 8(a)(1) allegations It is alleged that on September 28, during the course of a conversation Hollis was having with employee Eric Aubu- chon, Foreman Bruce Kayser approached them and said, referring to the brochure Hollis and Aubuchon were dis- cussing, involving the labor studies class, "Hollis, do you know how all this labor against management stuff could get you fired one of these days?" Kayser went on then to tell Hollis that he needed to improve the quality of work or else he would be disciplined. 582 CHRYSLER CORPORATION It is alleged that this statement by Kayser amounts to a threat in violation of Section 8(a)(1) of the Act, as does a comment Kayser made to Hollis the day before concerning Hollis' seeking medical treatment. Finding that Hollis was generally a credible witness and noting that his testimony was corroborated by Eric Aubu- chon, who I also found to be credible, I conclude that in fact Kayser made the statement attributed to him-that Itollis' activity with regard to labor versus management could be a cause of his discharge. Such is an unlawful threat. And I discredit Kayser's denial that he made the statement or any statement of like character. I do not, however, find that the statements attributed to Kayser with regard to his discussion on September 27 with Hollis involving Hollis' seeking medical attention or Kay- ser's statements to him concerning the quality of his work were unlawful threats. It is alleged that on December 12 Foreman David Rein- bold and General Foreman Don White approached em- ployee Ernest Dean, at which time Reinhold told Dean. in referring to literature in Dean's pocket: "I'd get rid of that if I were you. Probably could cost you your job someday." It is alleged that the literature referred to was literature involving the Rank and File Caucus. Accordingly, posses- sion as well as distribution of it was protected under the Act, and to threaten Dean in this manner was violative of Section 8(a)(1). Reinhold and White denied having made the statements attributed to them. Without resolving this obvious credibility conflict. it is noted that the literature referred to was literature having to do with a charitable fund and having nothing to do with the Rank and File Caucus or employees' wages, hours, or terms or other conditions of employment. Thus even if Reinbold made the threat attributed to him. such was not a threat relating to activity protected by Section 7 of the Act and accordingly would not be a threat violative of Section 8(a)(1). I therefore recommend this allegation in the com- plaint be dismissed. 3. The incidents of March 6 and 8, 1978 As noted above, on March 6 Supervisor Timms uncon- trovertedly told employees that the Company took a dim view of the Rank and File Caucus newsletter, and anybody who read it or was caught distributing it might be dis- charged. While this statement by one supervisor appears to be isolated insofar as it would prove a company policy or disposition to inhibit employees' activity on behalf of the caucus, it nevertheless is clearly a threat in violation of Sec- tion 8(a)( 1). Standing uncontradicted, I conclude that on or about March 6 Respondent did violate the Act by threaten- ing employees with discipline or discharge should they con- tinue to engage in any activity on behalf of the Rank and File Caucus. It is also alleged that on March 6 General Foreman White searched employees John May and Ernest Dean as they were leaving the premises in order to confiscate caucus newsletters. May and Dean were in fact stopped at the se- curity gate upon leaving the plant premises, and White was there. While Dean was asked to open the shoebox he was carrying, there is no evidence that Respondent conducted this search because May or Dean had engaged in anx ac- tivity on behalf of the caucus. The mere fact that another supervisor on the same day at a different time and place in the plant may have threatened two other employees does not require that I infer that the action of White was related to anybody's activity on behalf of the Rank and File Caiu- cus. These are, of course, legitimate reasons for inspecting containers carried by employees leaving company premises. I accordingly cannot conclude that Respondent in this manner violated the Act. nor do I find that White's act somehow was unlawful enforcement of an otherwise valid no-distribution rule, as alleged by the General Counsel. Also on March 6 John May was disciplined and given a 3-day suspension for failure to perform his job duties. Spe- cifically, May is the janitor responsible for keeping certain restrooms clean. According to his testimony. about 10:55 that morning, he received a page to go to the restroom K 19 to clean it. He admitted that he did not in tact mmedi- ately go to K 19 but instead continued with his regular rounds. arriving at K-19 at about 12:30 p.m.. or approxi- mately 1/2 hour before the end of his shift. When he ar- rived at K 19 he was met by his foreman. who at that time took him to the office and gave him the suspension for wkill- fully failing to comply with a page to clean the restroom. The General Counsel contends that May's admitted failure to perform his job duty was not the true reason that he was disciplined, but rather he was disciplined because of his activity on behalf of the Rank and File Caucus. The General Counsel further contends that Respondeni's discipline of May was pretextual either in that the restroom was not as dirty as claimed by Respondent or in that other employees are not required to do work when advised to do so by page. From this record I cannot find that Respondent's disci- pline of May was pretextual. In fact May admitted he re- ceived a page hut did not do the job requested until lihe came to it in the course of his routine. Max apparently contends the page was unimportant. Howveer. if the state of restroom K 19 was unimportant and if he was not re- quired to clean it specially. then there would have been no basis for him being paged in the first instance. I do not believe it reasonable that. having received the page. May could conclude that it was not necessary for him to do the stated work. It is clear that May did not do an assigned task and was disciplined therefor. Nor does the discipline seem to be so harsh as to require the conclusion that May w as disciplined for reasons other than his failure to perform an assigned job task. The mere fact that one sometimes participates in pro- tected activity does not insulate one from discipline. Thus. "the fact that a lawful cause for discharge is as ailable is no defense where the employee is acruallv discharged because of Union activities. 4 Joriori, if an employee is actuall motivated by a lawful reason, the tact that the emploee Is engaged in Union activities at the time will not tie the em- ployer's hand and prevent him from the exercise of his busi- ness judgment to discharge an employee for cause." (Origi- nal emphasis. citations omitted.) . L. R. B. v. ce C(oth (Co. and Ace Bowling Co.. Division o .4lerace Corp ,. 342 F.2d. 841 at 847 (8th Cir. 1965). Accordingly, I conclude that Respondent's discipline of May was not violative of Section 8(a)(I) or (3) of the Act. q83 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD On March 8, 1978, Dean was observed by Lundergan driving up to a fellow employee on a power sweeper and from the sweeper handing the employee a copy of the Rank and File Caucus newsletter. ([)ean appears to deny that he was on the sweeper at this time, a denial which I specifically discredit.) Lundergan then contacted Dean's supervisor, White, who confronted Dean, stating that he was going to discipline Dean because Dean was distributing literature on company time in violation of the rule against doing so. Dean told White that in fact he was on his break, to which White responded that he nevertheless was going to disci- pline Dean, because in that event Dean was misusing com- pany property by driving the sweeper while on break. The General Counsel appears to contend that the disci- pline of Dean is violative of Section 8(a)( ) because it inhib- its the lawful distribution of literature by an employee while on his own time, and disciplining him for "misuse of com- pany property" is a vacillating reason, showing that the true motive related to his activity on behalf of the Rank and File Caucus. I reject the General Counsel's arguments. The record is clear that in fact Dean was doing some- thing he should not. The Company's rule against distribut- ing literature while on working time is lawful. Thus an em- ployee can lawfully be disciplined for breaching it. Stoddard-Quirk, Mfg., Co., 138 NLRB 615 (1962). And if Dean was on his break as he alleges, then his driving a piece of company machinery was presumptively something he should not have been doing. In any event, there is no indication that the employee to whom the litera- ture was given was on his break. and all this took place in a work area. Nor is there any evidence that Dean was treated disparately from other employees similarly situated. From the total facts and circumstances it does not appear that Respondent's discipline of Dean was motivated by his activity on behalf of the Rank and File Caucus but rather was the discipline of an employee for having breached an otherwise lawful no-distribution rule or using company property while on break. 4. The event of May 24, 1978 Finally, it is alleged that on May 24, 1978, Guard ser- geant Harry Phillips asked employee John May to leave the parking lot when Phillips discovered May was passing out literature relating to the election of the caucus candidate for president of the Union. Phillips had been advised that somebody was distributing literature and, pursuant to com- pany policy, went to investigate. Upon learning from May the type of literature he was distributing, he returned to the guard shack. He did not confiscate the literature from May, tell him to leave, or in any way indicate that May could not distribute literature in the parking lot. I credit Phillips' ac- count and note that May did not really dispute it. I con- clude that the contention of the General Counsel has not been factually sustained. There is no credible evidence that Phillips demanded that John May or any other employee leave Respondent's parking lot on the morning of May 24, and specifically there is no evidence that Phillips did so as a result of that employee's having participated in activity on behalf of the Caucus. Accordingly, I shall recommend that this allegation of the complaint be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices found are unfair labor prac- tices affecting commerce and the free flow of commerce and tend to lead to labor disputes burdening and obstructing commerce with the meaning of Section 2(6) and (7) of the Act. V. THE REMEDY Having concluded that Respondent is engaged in certain unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act, I will recommend that it be ordered to cease and desist therefrom and take certain affirmative ac- tion designed to effectuate the policies of the Act. It will be recommended that Respondent be ordered to offer Steven Hollis reinstatement to his former job or, if that job no longer exists, to a substantially equivalent job, without prejudice to his seniority or other rights and privileges, and to make him whole for any losses he may have suffered as a result of the discrimination against him, in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977). 4 [Recommended Order omitted from publication.] ' See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962). 584