Handicabs, Inc.

890 318 NLRB No. 63 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an admin- istrative law judge’s credibility resolutions unless the clear prepon- derance of all the relevant evidence convinces us that they are incor- rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. However, we find it unnec- essary to rely on the judge’s comment about Claudia Fuglie’s ability to obtain employment given her physical disability. We also find without merit the Respondent’s allegations of bias on the part of the judge. On our full consideration of the record, we find no evidence that the judge prejudged the case, made prejudicial rulings, or demonstrated bias in his credibility resolutions, analysis, or discussion of the evidence. 1 Unless stated otherwise, all dates occurred during 1994. Handicabs, Inc. and Ronald F. Trail. Case 18–CA– 13287 August 31, 1995 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS COHEN AND TRUESDALE On May 5, 1995, Administrative Law Judge William J. Pannier III issued the attached decision. The Re- spondent filed exceptions and a supporting brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has de- cided to affirm the judge’s rulings, findings,1 and con- clusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge and orders that the Respondent, Handicabs, Inc., Min- neapolis, Minnesota, its officers, agents, successors, and assigns, shall take the action set forth in the Order. Polly Misra and Marlin O. Osthus, for the General Counsel. Errol K. Kantor and Charles A. Beckjord, of Minneapolis, Minnesota, appearing for the Respondent. DECISION STATEMENT OF THE CASE WILLIAM J. PANNIER III, Administrative Law Judge. I heard this case in Minneapolis, Minnesota, on February 6, 1995. On October 27, 1994,1 the Regional Director for Re- gion 18 of the National Labor Relations Board (the Board) issued a complaint and notice of hearing, based on an unfair labor practice charge filed on September 21, alleging viola- tions of Section 8(a)(1) and (3) of the National Labor Rela- tions Act (the Act). All parties have been afforded full op- portunity to appear, to introduce evidence, to examine and cross-examine witnesses, and to file briefs. Based on the en- tire record, on the briefs that were filed, and on my observa- tion of the demeanor of the witnesses, I enter the following FINDINGS OF FACT I. THE ALLEGED UNFAIR LABOR PRACTICES This case presents issues concerning the lawfulness under the Act of certain work rules and, also, concerning the moti- vation for discharging an employee on September 20. Handicabs, Inc. (Respondent) is one of three providers of transportation services for vulnerable adults—senior and dis- abled persons—in the Minneapolis-St. Paul metropolitan area for what is called the Metro Mobility system. It is a corpora- tion which, in the course and conduct of providing transpor- tation for vulnerable persons during calendar year 1993, de- rived gross revenues in excess of $500,000 and, further, pur- chased and received each month, at its Minneapolis place of business, approximately $40,000 of gasoline which originated outside of Minnesota. Therefore, I find that at all material times Respondent has been an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. A handbook has been distributed to each of its employees by Respondent. Company policy addendum no. 1 of that handbook states, inter alia: Because [Respondent] assigns a salary range based on the duties and responsibilities of each position, wages should not be discussed among the employees. Discus- sion of wages is grounds for immediate termination. The General Counsel contends that this rule violates Section 8(a)(1) of the Act. In its brief, ‘‘Respondent . . . admits that this language is in violation of Section 7 of the Act,’’ and ‘‘does not argue . . . that this particular policy is defen- sible.’’ Therefore, without the need for further discussion, I conclude that by maintaining that portion of addendum no. 1, Respondent violated Section 8(a)(1) of the Act. Waco, Inc., 273 NLRB 74 (1984). Also included as part of Respondent’s handbook is com- pany policy addendum no. 2. According to the General Counsel, the italicized portions of the following quoted sec- tions of that addendum also violate Section 8(a)(1) of the Act: Discussing complaints or problems about the company with our clients will be grounds for immediate dismis- sal. . . . . VULNERABLE ADULTS ACT (Minnesota Statute 626.557): All of our clients are protected by the Vulnerable Adults Act. According to this law, you must not tease them, take monies (other than ride-fare or tip) from them, curse or use profanity while in their presence, or do anything verbal or physical of a sexual nature. Also, you must not put these people in a threatening or un- comfortable position by discussing any personal or company-related problems that may make them feel co- erced or obligated to act upon or react to. Charges can and have been brought against drivers in the past for 891 HANDICABS, INC. 2 At all material times the Union has been a labor organization within the meaning of Sec. 2(5) of the Act. some of these types of situations. These acts are cause for immediate termination. Respondent argues that these prohibitions are necessary for the protection of passengers who, by virtue of their ages and disabilities, are in a position akin to that of hospital patients, whose situation was addressed in NLRB v. Baptist Hospital, Inc., 442 U.S. 773 (1979), and in Beth Israel Hospital v. NLRB, 437 U.S. 483 (1978). Its clients, urges Respondent, ‘‘are not necessarily able to handle stress or difficulties in the manner of a non-disabled person,’’ and, as a result, it should be allowed greater latitude to formulate and imple- ment a more stringent, albeit limited, ‘‘no-solicitation’’ rule intended to protect passengers from speech and action which might be upsetting, even threatening, to them: The concern that the Supreme Court had in regard to hospital patients are closely present in Respondent’s business. Clients often use [Respondent] to get to medi- cal facilities. . . . Even if Metro Mobility clients are not using the service for a medical appointment, how- ever, they are not necessarily able to handle stress or difficulties in the manner of a non-disabled person. The State of Minnesota has recognized the right of these persons to be protected from speech and actions that would not constitute abuse towards a healthy person without disabilities. The alleged unlawfully discharged employee is Ronald F. Trail. Prior to his September 20 termination he had been em- ployed continuously by Respondent as a driver since Feb- ruary of 1991. During the last spring or early summer of 1994 Trail became active in an organizing campaign, con- ducted among Respondent’s drivers by Miscellaneous Driv- ers, Helpers & Warehousemen’s Union, Local No. 638, I.B.T. (the Union),2 and leading to a representation election conducted on October 14. Thus, Trail signed a card authoriz- ing the Union to represent him, was elected a member of one of the organizing committees, and passed out authorization cards to other drivers to whom he spoke on the Union’s be- half. When he returned after work during the late afternoon or early evening of September 20, Trail was discharged by Driver Supervisor Gary Nord, an admitted statutory super- visor and agent of Respondent. According to Trail, Nord said that he had to terminate Trail because ‘‘we’ve got a com- plaint against you,’’ but when Trail asked who had com- plained, Nord replied, ‘‘I can’t tell you,’’ and asked, ‘‘Why do you want to know, so you can harass her some more?’’ Trail testified that he responded, ‘‘No, I don’t want to harass anybody. I want to know what the complaint is so I can an- swer the complaint to these charges,’’ but Nord replied, ‘‘No, I can’t do that. Everything is locked up in the office.’’ When he then asked for ‘‘something in writing or something that tells me about this,’’ testified Trail, Nord started writing out something on a piece of paper, but then, ‘‘Scribbled it out and said, ‘No, I can’t do that. I don’t have authority to do that.’’’ Instead, Nord photocopied company policy adden- dum no. 2 and said that was the only thing he could give Trail. As Nord was making the photocopy, Trail went to his company mail slot. There he discovered a copy of a memo- randum from Nord to ‘‘All Drivers,’’ dated ‘‘9–20–94,’’ re- garding the subject of ‘‘Discussions With Passengers.’’ That memorandum reads: It has been brought to my attention that some pas- sengers have complained that drivers have been has- sling them with complaints and problems regarding po- tential unionization. This behavior violates our company policy. In accordance with the policy the appropriate disciplinary action is dismissal. Many passengers are scared and fearful that unionization would mean a strike and loss of service for their transportation needs. It also can be very threatening to some passengers to be involved in internal [Respondent] matters. Therefore, regardless of your personal beliefs regarding this union thing, please do not trouble our passengers with your problems. Failure to comply with this policy will result in immediate dismissal. The General Counsel alleges that Trail’s discharge had been motivated by his statutorily protected concerted activi- ties on behalf of the Union, as well as by a motive to dis- courage other employees from engaging in such activity. In- deed, in the representation election, conducted 24 days after that discharge, a majority of those who cast ballots voted against representation by the Union. However, Respondent challenges those motivation allegations, asserting in its brief ‘‘that Mr. Trail was properly discharged for violating Minn. Stat. 626.557, causing distress to vulnerable adults in viola- tion of that act,’’ as recited in the above-quoted section of company policy addendum no. 2. Consistent with Trail’s above-described account, Nord agreed that, during the September 20 termination discussion, he had given Trail a copy of addendum no. 2. In fact, Nord did not dispute any aspect of Trail’s description of their con- versation that late afternoon or early evening. For, with re- spect to that conversation, Nord testified only: I told him that he had violated the Vulnerable Adults Act, gave him a copy of the—of the company policy that it related to. He asked me for names of who was doing— of who had alleged—what [sic] had said he committed the violations, and I told him that I could not give him the names for fear of reprisal. Aside from Nord, Respondent presented two other wit- nesses who were involved in, and testified about, the se- quence of events on September 20 which culminated in Trail’s discharge. One is Respondent’s president, Joyce Doerffler, an admitted statutory supervisor and agent of Re- spondent. The other is Claudia Fuglie, an employee of Re- spondent who described her job as ‘‘a reservationist. I take orders, write orders from passengers. Make sure that their times that they need for a ride is available to them. Make sure that the routes are, you know, within their time slot and stuff.’’ In addition to working for Respondent, Fuglie rides its buses as a passenger, because, ‘‘I have spina bifida and I’m paraplegic, paralyzed from the waist down.’’ By way of overview, these three witnesses testified that Fuglie made a report to Nord early on September 20; he re- lated the substance of that report to Doerffler who, in turn, 892 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD spoke with Fuglie; Doerffler and Nord then made the deci- sion that Trail should be discharged; and, Nord implemented that decision when Trail returned to Respondent’s facility at the end of his workday. Yet, when the accounts of these wit- nesses are analyzed and compared, their generalized straight- forward sequence of events on September 20 unravels. Left is a strand of indicia, including contradictions between ac- counts and with objective considerations, which serve to re- inforce the allegation of unlawful motivations for the dis- charge of Trail, rather than supporting Respondent’s defense. The perhaps most obvious illustration supporting that con- clusion arises in connection with the analytical element of knowledge, or suspicion, by Respondent of Trail’s union sympathies and activities. Doerffler testified during direct ex- amination that, when the decision to fire him had been made, after she had spoken with Fuglie on September 20, she had no knowledge of Trail’s union activities: Q. On September 20th or prior to that did you as CEO or head of the company, owner or president, whatever, have any knowledge of Mr. Trail’s union ac- tivity? A. No. . . . . On September 20th were you aware that Mr. Trail was trying to organize the drivers? A. No. And until today was I made aware of that. Q. All right. So in your own—in your own decision to fire Mr. Trail was violation of the policy addendum two and nothing to do with his union activities? A. Nothing. Q. You weren’t aware of them? A. No. Totally not. Nord supported Doerffler’s above-quoted denials: ‘‘I have no knowledge that Joyce knew anything of Mr. Trail’s activities. . . . regarding a union’’ at the time of ‘‘the determination that we would need to dismiss Mr. Trail[.]’’ Yet, that denial, and those of Doerffler as well, were not consistent with Re- spondent’s own evidence concerning the sequence of events on September 20. As discussed in greater detail below, Fuglie testified that, in the course of taking her home on the bus each day, Trail had complained frequently to her about certain aspects of his job. Those complaints, she testified, caused her to become ‘‘very upset and very concerned because when you come up with a conversation like that with a driver you begin to won- der what the office is like. What the job [is] like.’’ In addi- tion, testified Fuglie, during the weekend preceding Septem- ber 20, ‘‘I had gotten some phone calls from other pas- sengers who were concerned about the conversations that were going on on the buses or on the vans’’ with Trail. ‘‘I finally had enough of it,’’ she testified, ‘‘and so I went to Gary Nord and asked him, you know, can you—you know, I’ve had enough of this. Can you see what you can do.’’ She claimed that because of her fear of ‘‘[r]etaliation,’’ she iden- tified neither the name of the driver nor the names of the other passengers to Nord during that conversation. According to Fuglie, Nord ‘‘said he would look into it,’’ and she then went to work. That was the extent of Fuglie’s testimony during direct ex- amination regarding her conversation with Nord during the morning of September 20. Questioned during cross-examina- tion about the words she had spoken to Nord that morning, however, Fuglie acknowledged that she had told Nord that her concern had been ‘‘that there was talk about the [U]nion,’’ and that she ‘‘wouldn’t be surprised if he received phone calls from other passengers about this union issue[.]’’ Furthermore, Fuglie conceded that, on that day, she had not told Nord of any other concerns about Trail that she ‘‘had other than there being talk about the [U]nion. . . .’’ In other words, not only did Fuglie report specifically to Nord that Trail had been talking about the Union, but she made no re- port to Nord on September 20 respecting complaints about employment with Respondent that Trail may have uttered to her prior to that date. Indeed, Nord concurred that Fuglie’s complaint on that date had centered only on the possible effects of unionization of the drivers. Thus, he testified that, when she had ap- proached him ‘‘early in the morning. My guess is 7 o’clock or so,’’ Fuglie told me that she had heard from several passengers over the weekend that they are very threatened and scared about the potential for work stoppage that might occur with a union, that the drivers have been telling them that there is going to be a work stoppage, and that they were very fearful that having just undergone a work stoppage less than a year prior that—or a system break- down rather, rather than a work stoppage, a system breakdown a year prior—that they were concerned that a similar thing was going to occur again. [Emphasis added.] The system breakdown mentioned in that testimony pertained to a situation during the latter half of 1993, when transpor- tation of vulnerable adults in the metropolitan area so badly broke down that the National Guard was eventually called in to operate the system. Asked specifically during direct examination if Fuglie’s conversation with him had ‘‘include[d] other things besides these threats about the [U]nion,’’ Nord answered, ‘‘The threats were more of work stoppage in nature than anything about a union.’’ He identified no other conduct nor remarks by Trail, about any other subjects, which had been mentioned by Fuglie during that 7 a.m. conversation. Accordingly, as- suming arguendo that Trail had voiced general complaints about employment to Fuglie, while she had been a passenger in his bus, those complaints had not been a subject of the report which she made to Nord on September 20. As had Fuglie, Nord testified that, when he asked ‘‘who these passengers were or who the drivers involved were’’ (emphasis added), she had refused to identify them because there might be ‘‘reprisals,’’ and he had told her that he would look into the matter. ‘‘I considered [Fuglie’s expressed concerns] to be serious concerns of Claudia[ ],’’ testified Nord. So, when Doerffler arrived at work later that morning, he ‘‘told Joyce what Claudia had told me and said that maybe she would be more forthcoming if you talk to her.’’ Similarly, Doerffler testified that when she had shown up for work that morning, Nord came to me almost immediately and said, ‘‘Boy, we’ve got trouble now. Apparently the passengers are being made to feel really threatened and uncomfortable. Clau- dia got a lot of phone calls at home this weekend.’’ 893 HANDICABS, INC. And [I] said, ‘‘Well, who is it’’ and he says, ‘‘She won’t tell me.’’ And I said, ‘‘Well, I’ll talk to her and see if I can get any information.’’ Fuglie and Doerffler each described a conversation which then had ensued between them. The latter testified that the conversation had taken place ‘‘in the ladies restroom.’’ Dur- ing direct examination, Fuglie testified initially that it had taken place ‘‘at my desk.’’ But when it was then suggested ‘‘I understood that you went into the ladies room so nobody could see the two of you,’’ Fuglie answered hastily, ‘‘Oh, that too.’’ Yet, Doerffler described only a single conversation with Fuglie that day. And, Fuglie described the substance of only a single conversation with Doerffler on September 20. As a result, there simply is no basis for concluding that the two women had engaged in one conversation ‘‘at [Fuglie’s] desk’’ as Fuglie testified initially, and that a conversation be- tween them occurred ‘‘too’’ in the ladies’ restroom, as Doerffler testified and as Fuglie testified after being prompt- ed. As to the substance of what Fuglie had said to her, Doerffler testified that, after identifying Trail, Fuglie said that he made her feel very threatened and uncomfort- able complaining about the company, threatening that the drivers were going to walk out union or no union. I said, ‘‘Well, if he doesn’t like his job so much why doesn’t he quit’’ or something like that, and she says, ‘‘I don’t know but I’ve asked him to stop talking. He doesn’t and now people I know are hearing the same conversations. I’m really getting upset and nervous about it.’’ To be sure, Doerffler’s account places some distance be- tween possible unionization of the drivers and asserted fear caused to passengers by Trail’s supposed work-related re- marks to them. That is, her description of Fuglie’s statements simply enfolds mention of a union into an overall general de- scription of purported complaints about Respondent’s em- ployment by Trail to passengers. Still, as pointed out above, Fuglie had not reported that morning to Nord any remarks by Trial other than ones per- taining to ‘‘talk about the [U]nion.’’ Nothing in the record supports an inference that Fuglie would have been naturally disposed to add to her initial report other subjects when later speaking with Doerffler. And any such inference would be at odds with Fuglie’s ultimate testimony regarding the sub- stance of what she reported to Doerffler on September 20, although she did inject a somewhat internally inconsistent ac- count. During direct examination, Fuglie provided only a sketchy description of what she had reported about Trail to Doerffler on September 20. Thus, she testified that she had mentioned ‘‘the problems we are dealing with and stuff,’’ and agreed that she had disclosed to Doerffler ‘‘all these things we’ve been talking about,’’ such as her ‘‘fears of shutting down’’ and ‘‘threats of whatever happened[.]’’ Then, in the course of testifying during cross-examination about purported com- plaints to her by Trail concerning Respondent’s treatment of employees—yelling at employees and back-stabbing—Fuglie claimed that she also had reported those supposed statements to Doerffler before Trail had been discharged. However, when asked during redirect examination if her September 20 conversation with Doerffler had included Trail’s ‘‘conversation other than the union and things he dis- cussed with you,’’ Fuglie’s answer effectively denied that such ‘‘other’’ purported remarks by Trail had been related to Doerffler during that particular conversation: ‘‘Basically talked to Joyce about the concern of the [U]nion because I was listening to things that were very unpleasant.’’ Not only did that testimony refute Doerffler’s testimony that Fuglie had reported complaints by Trail about his employment with Respondent, but it obviously also contradicts Doerffler’s above-described denials of knowledge about Trail’s union in- volvement—or, at least, sympathies— when the decision to discharge him had been made later that same day. That occurred following Doerffler’s conversation with Fuglie. During a discussion with Nord, testified Doerffler, the determination was made to fire Trail and responsibility for doing so was delegated to Nord. Both testified that they had reached that determination because Trail’s remarks to passengers, as related by Fuglie, had violated the Vulnerable Adults Act portion of company policy addendum no. 2. In- deed, in contesting Trail’s claim for unemployment benefits, Respondent advanced that contention and its position was upheld by the Minnesota Department of Economic Security’s Representative of the Commissioner. In his decision, the rep- resentative made a specific finding that: (6) The claimant was discharged by the employer due to discussing work-related problems and union ac- tivity with the employer’s passengers. The claimant’s discharge was pursuant to the employer’s policy which provided for immediate discharge in such cases. As discussed in section II, infra, Respondent moves to dis- miss the discrimination allegations of this proceeding on the basis of the result reached in that state proceeding. Given that state determination and the motion based on it, as well as the motivation defense advanced in this proceed- ing, it is necessary to examine the contention that Trail’s dis- charge had been motivated, at least in part, by complaints about working conditions which he had supposedly made to passengers. At the outset, there is no reliable evidence that Doerffler and Nord had even been aware of such conduct by Trail at the time that the two supervisors determined to dis- charge him. Only in Doerffler’s description of what Fuglie had said on September 20 is there any somewhat clear reference during conversations that day to Trail ‘‘complaining about the company[.]’’ However, as discussed above, that testimony was ultimately refuted by Fuglie. To be sure, she mentioned having reported to Doerffler such work complaints by Trail before he had been discharged. But when that particular testi- mony was followed up during redirect, Fuglie reversed field and testified, ‘‘Basically talked to Joyce about the concern of the [U]nion’’ on September 20. Fuglie testified that her initial report to Nord had been ‘‘that there was talk about the [U]nion’’ and that she had not reported any other concern to him. Nord agreed that this had been the only subject of Fuglie’s report, although he charac- terized her concern in terms ‘‘of work stoppage [rather] than anything about a union.’’ But he never claimed that Fuglie had said anything about Trail, or any other driver, complain- 894 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 3 Doerffler testified Respondent had disbanded that plan and had distributed the profits to qualified employees. She further testified that Trail’s money had not been collected by him. Having worked for Respondent 3-1/2 years, she estimated that the amount available to him is ‘‘only about $11.00[.]’’ ing to passengers about their conditions of employment by Respondent. Nor did he testify that he and Doerffler had dis- cussed such a subject in reaching their discharge termination. In fact, neither did Doerffler do so. Finally, a review of Nord’s above-quoted ‘‘9–20–94’’ memorandum shows that it pertained to ‘‘complaints and problems regarding potential unionization,’’ not to ‘‘complaints and problems’’ about working conditions, in general. It is settled that ‘‘the mere existence of a valid ground for discharge is no defense to an unfair labor practice charge if such grounds was a pretext and not the moving cause.’’ NLRB v. Yale Mfg. Co., 356 F.2d 71 (1st Cir. 1966). Accord: Singer Co. v. NLRB, 429 F.2d 172, 179 (8th Cir. 1980); NLRB v. Symons Mfg. Co., 328 F.2d 835, 837 (7th Cir. 1964); NLRB v. Adam Loos Boiler Works Co., 435 F.2d 707 (6th Cir. 1970). Inasmuch as there is no evidence that Doerffler and Nord had even been aware on September 20 of supposed complaints by Trail to passengers about dis- satisfaction with employment by Respondent, much less that they had discussed and considered that subject in reaching their decision to fire Trail on that date, Respondent cannot now rely on such purported remarks to passengers to buttress its defense. In fact, with one exception, Trail denied expressly that he had initiated or participated in conversations with passengers regarding his wages, benefits or working conditions, and fur- ther denied that he had ever discussed with passengers his own complaints about work at Respondent. Moreover, he tes- tified that whenever passengers complained about the service, usually about scheduling which caused them delays, he would ‘‘refer them to the company to call the office and have them explain it to you,’’ since those were not ‘‘complaint[s] that I can deal with.’’ The lone exception to Trail’s denials pertained to Fuglie. She rode regularly with Trail and was the only employee of Respondent to do so. As they rode together, he testified, they would converse, just about anything. We’d talk about weather for one thing or how her day went in the office, if there was any—anything going on after work where she would be going to do something after work, or if I was going to do something after work we’d talk about that, or about our families or if we had friends in common we’d talk about things like that. Only twice he testified did he discuss the Union with Fuglie. The first occasion had occurred in August, Trail testified, when Fuglie raised the subject by saying that ‘‘the people in the office were wondering how this union thing was going to turn out.’’ When he asked why she wanted to know that, testified Trail, Fuglie replied, ‘‘Well, we’re wondering if we’re all going to have jobs and that the drivers aren’t going to be getting their hours if there is a union voted in because [Respondent] won’t be able to pay for the overtime and hours will be cut back.’’ According to Trail, when he asked how Fuglie knew that, she responded, Well, Joyce and Har- lan [Peterson] said so.’’ He testified that he had assured her, ‘‘I don’t think that would happen. I can’t see that.’’ The second occasion when the Union was mentioned dur- ing a conversation between them, he testified, occurred dur- ing the week prior to his discharge, ‘‘right after work at about 3:30 at [Respondent’s] garage.’’ He testified that he had asked Fuglie if she was aware of Respondent’s profitsharing plan and if she had been offered an opportunity to participate in it. When she answered no to both questions, testified Trail, he explained that he had been told about such a plan when he started working for Respondent, but when he later questioned whether he could participate in the plan, he had been told that there were no profits, so there would be no profitsharing.3 According to Trail he then said to Fuglie: Well, that’s some kind of unequal treatment there, being told one thing and not being given it or others have been told things and not given them, and the fact that drivers were doing the same job and getting paid different wages even though some had been there longer and getting less than drivers that were hired since them. You know, those were inequities that could be changed if the [U]nion was voted in. Fuglie was the primary witness called by Respondent to supply evidence regarding the assertions that Trail had com- plained to passengers about his job. During the summer and fall, she testified, he had complained ‘‘three, four times a week,’’ as he drove the bus, about unhappiness with the routes, the manifests, his pay and being overworked, and also had said that ‘‘they could yell at you’’ and that Doerffler ‘‘could be a bitch if she wanted to and also watch my back because I didn’t know, you know, if they were going to yell at me or terminate me out of the clear blue.’’ Moreover, she testified, He had mentioned one time that drivers would walk out because they were not happy with what was going on. They were not happy with their wages and the routes and that they were pushed to do more than what they could do, and they could have walked out [with or without a union]. Trail denied having conversed about the Union with Fuglie on any occasion other than during the two above-described conversations concerning which he testified. Significantly, Fuglie never denied that those conversations had occurred and that the remarks recited by Trail had been exchanged be- tween them. Further, there were certain other aspects of her testimony which reinforce doubts regarding her candor that arose as she was testifying. First, Fuglie was vehemently opposed to unions and, by extension, unsympathetic to activities of those who supported them. That was amply demonstrated by the following se- quence of questions and answers when she testified: Q. I think I did ask but I want to make sure. You weren’t of the class to be unionized? A. No. Q. And so Ron didn’t ask you to sign a union card? A. No. Q. And there was really no reason for you to have discussions with Ron— 895 HANDICABS, INC. 4 Lest someone raise the point, as I advised the parties during the prehearing conference call, I am blind in one eye. Some say that, in due course, I may lose sight in the other one. Consequently, it can hardly be maintained with persuasion that I am not sensitive to the plight of vulnerable persons—unless, of course, one is prepared to grade disadvantages of various handicaps and challenges. A. No. Q. —about the union? A. And I probably would have ripped it up. Q. But be that as it may— A. Right. Q. —you weren’t— A. I wasn’t part of it and I didn’t want to hear it. The vitriol which can be implied from those answers does not begin to fully portray the bitterness Fuglie displayed in uttering those answers. It was my impression that she was fully willing to tailor her accounts of events to disadvantage a supporter of any union to the greatest extent possible. Second, Fuglie was not reluctant to take advantage of any opportunity to point out her dependence on bus drivers, such as Trail, when being ridden to and from work. That depend- ence is obvious.4 Still, there is another aspect to her situa- tion: Fuglie is self-supporting and, thus, dependent upon Re- spondent for continued income from employment. It is not easy for someone in her position to obtain employment. As a result, it should not be surprising that she would be dis- posed to take whatever measures she deemed necessary to assure that she retained her current job. Third, very little supporting evidence was provided for Fuglie’s accounts of purported ongoing complaining remarks by Trail which upset passengers riding his bus. Of course, that might be because those passengers were fearful to come forward and identify themselves, as Fuglie claimed. But one of them—Jan Snook—did appear as a witness. Her testimony did not support that of Fuglie. The latter testified that Snook had been one of the individ- uals who had complained to Fuglie and that Snook had ‘‘voice[d] the same concerns that [Fuglie] voiced’’ to Re- spondent. But when Snook appeared as a witness, she testi- fied that she had told Fuglie, ‘‘I remember sometimes over the concerns but I keep my mouth shut.’’ At no point did Snook describe any telephone call that she had placed to Fuglie during the weekend preceding Trail’s discharge. More importantly, asked about what Trail had said in her presence, while she rode as a passenger on his bus, Snook testified merely, ‘‘I remember one day riding home he had a lot of people to pick up’’ and Trail had complained ‘‘about being overbooked but that’s all I remember.’’ Given the fact that, as described above, Trail occasionally encountered pas- senger complaints about delays caused by scheduling, it does not seem unusual that he might have voiced concern on a particular occasion about being overbooked. However, that single remark hardly rises to the level of the types of com- plaints attributed to Trail by Fuglie—hardly demonstrates criticism of Respondent that would likely cause a vulnerable passenger to become fearful. Fourth, Fuglie’s testimony raised certain inherent timing concerns. As set forth above, she claimed that Trial had been complaining to her since summer. Yet, for some reason never explained, she did not relate any of his supposed remarks to Respondent’s officials until the representation election ap- proached and the possibility of representation for drivers be- came a realistic possibility. Further, there is no evidence of any incident involving Trail that would appear to explain a sudden spate of calls to Fuglie by other passengers during the weekend preceding September 20. Absent such an explanation, it seems highly unusual that a number of people would suddenly make inde- pendent decisions to telephone Respondent’s reservationist, at her home, to voice identical concerns. Of course, that might be explained by the approaching representation election and the fact that other passengers, like Fuglie, were becoming concerned that the drivers’ selection of a bargaining agent could lead to a work stoppage, should subsequent bargaining fail to yield agreement, that could leave those passengers without transportation, as happened to them during 1993. Had those telephone calls to Fuglie actually been made during that weekend, it is puzzling that she had not made her report to Respondent about them until the second workday following that weekend. Throughout the hearing Respondent referred to September 20 as a Monday. But examination of a 1994 calendar reveals that September 20 fell on a Tuesday during that year. Obviously, Respondent could not change the date of which it had discharged Trial. So, in constructing their defense, its witnesses appear to have tried to bluff through the actual day of the week on which that date oc- curred, by portraying it as a Monday and, apparently, hoping that no one would notice. Notice of that fact, however, leave an intervening workday between that weekend and the day of which Trail was discharged, with no explanation of why, had she actually received calls from other passengers during the weekend and had become concerned, Fuglie did not make her report on the first workday after that weekend. On the basis of Fuglie’s testimony, she had complained only about Trail. However, as the italicized portions of Nord’s testimony reveal, he described her as having reported passenger calls to her about ‘‘drivers,’’ plural. This was not a mere one-time possible reportorial error. For when Nord described having asked Fuglie to whom she was referring, Nord again used the plural: ‘‘drivers.’’ Furthermore, he used that same plural—‘‘drivers have been hassling them’’—in his above-quoted ‘‘9–20–94’’ memorandum, issued on the same day as Trail was fired. These particular facets of Respond- ent’s evidence gives rise to at least a respectable alternative inference that passengers had been concerned about a pos- sible work stoppage should the drivers become represented, that Fuglie had related that concern to Respondent’s officials and had identified Trail as a union supporter—or likely sup- porter—based on his above-described comment to her during the preceding week, and that Respondent fired him as a warning to other drivers when they cast their ballots in the representation election conducted 24 days later. That is, that by discharging Trail, Respondent could ‘‘so extinguish seeds, [that] it would have no need to uproot sprouts.’’ Ethan Allan, Inc. v. NLRB, 513 F.2d 706, 708 (1st Cir. 1975). II. DISCUSSION Turning first to the portion of company policy addendum no. 2 italicized in section I, obviously Respondent has an ob- ligation to protect passengers from abuse and mistreatment by drivers. Nevertheless, nothing in the public service provi- sions of Americans with Disabilities legislation, 42 U.S.C. § 12101 et seq., provides for modification of rights guaranteed 896 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD employees by the Act. Moreover, one purpose of those pub- lic service provisions is ‘‘elimination of discrimination against individuals with disabilities,’’ 42 U.S.C. § 12101(b)(1), not to promote further patronization of them. To be sure, some words and conduct do cause greater con- cern for a vulnerable person than is the fact for other individ- uals. Still, any work rules intended to address such greater concerns must be narrowly tailored to avoid unnecessary deprivation of employees’ statutory rights. As a general proposition, employees do not ‘‘lose their protection under the ‘mutual aid or protection’ clause [of Section 7 of the Act] when they seek to improve terms and conditions of employment or otherwise improve their lot as employees through channels outside the immediate em- ployee-employer relationship.’’ Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1987). That protection can be lost whenever employee communications to third parties do not relate to labor practices of the employer, such as disparaging the em- ployer’s reputation or quality of its product, or whenever those communications are maliciously motivated. See gen- erally, NLRB v. Local 1229 IBEW (Jefferson Standard), 346 U.S. 464 (1953). But the portions of addendum no. 2 italicized in section I are not limited to those types of com- munication. Nor, for that matter, are those italicized portions narrowly drafted so that Respondent’s prohibitions are confined to driver communications intended to threaten or cause pas- sengers to become apprehensive, and to communications nat- urally likely to have that effect. Instead, the first pertinent rule is that addendum imposes a flat prohibition on, ‘‘Dis- cussing complaints or problems about the company with our clients,’’ adding that such communications ‘‘will be grounds for immediate dismissal.’’ True, the second italicized portion of addendum no. 2 is somewhat less sweeping, in that it is confined to ‘‘personal or company-related problems that may make [clients] feel co- erced or obliged to act upon or react to.’’ Still, the standard which it imposes is a subjective one: it literally conditions violation of its prohibition on the subjective reaction of the passenger. Such a standard presents an inherent danger to the exercise of drivers’ statutory right to communicate ‘‘through channels outside the immediate employee-employer relation- ship.’’ Ibid. For example, although there is no reliable evidence that Trail or any other driver maliciously threatened a work stop- page as a means of frightening Fuglie or any other pas- senger, work stoppages are one obvious possible con- sequence of collective bargaining. I have no doubt that Fuglie understood that fact and was apprehensive concerning the impact of any strike on her ability to obtain transpor- tation. But that is an apprehension shared generally by all passengers on any form of transportation employing rep- resented employees. Indeed, it is a normal concern of every customer of a business with represented employees. How- ever, Congress has not seen fit to restrict the right to strike of employees working for enterprises which serve the handi- capped and challenged. Furthermore, absent a showing of intention to deliberately frighten the latter through statements about possible strikes— which has not credibly been shown here—nothing prohibits employees providing service to that sector of the public from mentioning the possibility of, or intention to, strike, incident to attempting to ‘‘improve their lot as employees through channels outside the immediate employee-employer relation- ship.’’ Id. Yet, by its terms, that is precisely what is forbid- den by the terms of the second italicized portion of company policy addendum no. 2, at least so long as a single pas- senger, such as Fuglie, subjectively ‘‘feel[s] coerced or obli- gated to act . . . or react to’’ statements about the possibility of a strike. Beyond strike statements, that particular rule is worded so broadly that it potentially prevents employees from publiciz- ing any aspect of a labor dispute with Respondent, and from appealing for support from the public, for fear that a single client may come to feel threatened or uncomfortable. So broad a prohibition hardly strikes a reasonable balance be- tween protection which Congress sought to extend to the handicapped and challenged segment of the public and the rights which Congress sought to provide for employees under the Act, particularly in an overall prohibition which begins with an expressed warning of ‘‘immediate dismissal’’ for discussion with clients of ‘‘complaints or problems about the company[.]’’ The breadth of both italicized portions of com- pany policy addendum no. 2 is too extensive. The one ex- pressly prohibits statutorily protected activity; the second in- herently does so. Therefore, I conclude that those sections of addendum no. 2 violate Section 8(a)(1) of the Act. Pontiac Osteopathic Hospital, 284 NLRB 442 (1987); Kinder-Care Learning Centers, 299 NLRB 1171 (1990). Turning to the motivation for Trail’s discharge, prior to the hearing Respondent filed a motion to dismiss—renewed during the hearing—on the basis of the decision issued by the representative of the commissioner, mentioned in section I. That decision, argues Respondent, addressed the issue of whether Trail had engaged in misconduct, concluded that he had done so, and, accordingly, resolved the motivation issue by holding that Trail ‘‘was discharged for misconduct.’’ Therefore, Respondent contends, the complaint concerning that allegation should be dismissed, because the motivation for discharging Trail has already been resolved. In Section 10(a) of the Act, however, Congress provided that the Board’s power to prevent unfair labor practices ‘‘shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law or otherwise.’’ The Board has held specifically that state determinations of misconduct, disqualifying alleged discriminatees from receiving unemployment benefits, are not controlling in proceedings arising under the Act. That type of decision is ‘‘rendered under a statute with different defini- tions, policies and purposes,’’ Garrison Valley Center, Inc., 277 NLRB 1422 fn. 1 (1985), and decisions under the Act ‘‘must be based upon an independent consideration and eval- uation of the evidence received in . . . unfair labor practice proceeding[s].’’ Justak Bros. & Co., 253 NLRB 1054 fn. 1 (1981). Furthermore, the General Counsel was not a party to the state proceeding, nor during it was Trail represented by counsel. A review of the decision and its underlying record reveals that no consideration was accorded to the unfair labor practice motivation issue which the Act requires the Board to resolve. Not all of Respondent’s evidence presented during that hearing was based on firsthand knowledge, since only Doerffler testified for Respondent. In light of the foregoing considerations, I deny Respondent’s motion to dismiss. 897 HANDICABS, INC. The General Counsel has made a prima facie showing of unlawful motivation for Trail’s discharge. Prior to that dis- charge Trail had been active on behalf of the Union. Termi- nation of a union activist can ‘‘give rise to an inference of violative discrimination.’’ NLRB v. First National Bank of Pueblo, 623 F.2d 686, 692 (10th Cir. 1980). See also Inter- mountain Rural Electric Assn. v. NLRB, 732 F.2d 754, 759 (10th Cir. 1984), and cases cited therein; NLRB v. Des Moines Foods, Inc., 296 F.2d 285, 289 (8th Cir. 1961). During the hearing, and in its brief, Respondent argues that there has been no showing that Respondent had knowl- edge of Trail’s union support and activities prior to Septem- ber 20. So far as it goes, that argument is an accurate one: There is no evidence that prior to September 20 Doerffler or Nord had known about Trail’s support for the Union. But, as described in section I, on September 20 Fuglie protested to Nord about ‘‘talk about the [U]nion’’ and ‘‘this union issue.’’ Later that same morning, Fuglie, ‘‘Basically talked to Joyce [Doerffler] about the concern of the [U]nion.’’ Doerffler admitted that the determination to discharge Trail had not been made until after those conversations. Moreover, during Doerffler’s conversation with Fuglie, the only driver whose name had been mentioned had been that of Trail. Ac- cordingly, while Respondent may not have known the extent of his union activities prior to September 20, on that date— by the time of the determination to discharge him—it cer- tainly possessed knowledge that Trail was involved in union activity. Even if one might conclude that the extent of that knowl- edge gave rise to no more than suspicion by Respondent of union support by Trail, ‘‘the Act is violated if an employer acts against the employee[ ] in the belief that [he has] en- gaged in protected activities.’’ Henning & Cheadle, Inc. v. NLRB, 522 F.2d 1050, 1052 (7th Cir. 1975). Accord: NLRB v. Ritchie Mfg. Co., 354 F.2d 90, 98 (8th Cir. 1965). In sum, in view of Fuglie’s remarks to Doerffler and Nord—the two officials who made the discharge determination—the record amply supports a conclusion that, by the time of that deter- mination, they knew, or at least suspected, that Trail was in- volved with the Union. And so far as the evidence shows, he had been the only employee whom Respondent could identify by September 20 as being a union supporter. True, Doerffler testified that em- ployee Dennis Schusted had been ‘‘known to me through the entire time [to be] a union supporter.’’ However, she did not testify what she meant by ‘‘throughout’’ and did not testify with particularity when she had learned of his union support. He had been an observer for the Union at the October 14 representation election. So by the time of the hearing in the instant case obviously Doerffler knew that Schusted had sup- ported the Union. But there is no specific evidence that she, or any other official of Respondent, had known prior to Oc- tober 14 that Schusted did so. Consequently, so far as the evidence discloses, on September 20 Trail had been the only employee disposed toward the Union whose identity was known to Respondent. Furthermore, the discharge determination was made shortly after Doerffler had acquired that knowledge. ‘‘The inference of a cause-and-effect relationship between the two incidents is a strong one.’’ NLRB v. Adams Delivery Service, 623 F.2d 96, 99 (9th Cir. 1980). Not only does such ‘‘stunningly obvi- ous timing,’’ NLRB v. Rubin, 424 F.2d 748, 750 (2d Cir. 1970), ‘‘render the motive suspect,’’ NLRB v. J. W. Mortell Co., 440 F.2d 455, 457 (7th Cir. 1971), and ‘‘vulnerable,’’ NLRB v. Dee’s of New Jersey, 395 F.2d 112, 115 fn. 4 (3d Cir. 1968); see also NLRB v. Council Mfg. Corp., 334 F.2d 161, 164 (8th Cir. 1964), but, ‘‘Such proximity can lead sup- port to a Board inference of unfair labor practices.’’ (Citation omitted.) NLRB v. Tennessee Packers, Inc., 390 F.2d 782, 784 (6th Cir. 1968). As described in section I, other than saying ‘‘we’ve got a complaint against you,’’ when he discharged Trail, Nord had been unwilling to either explain further the reason for that discharge or to provide a written statement to Trail con- cerning the reason for it. Nord’s failure to do so is a cir- cumstance which further supports an inference of unlawful motivation. See, e.g., NLRB v. Griggs Equipment, Inc., 307 F.2d 275, 278 (5th Cir. 1962); NLRB v. Melrose Processing Co., 351 F.2d 693, 699 (8th Cir. 1965). As Trail explained to Nord, so vague an explanation for discharge left Trail unable to explain his version of an inci- dent for which he was being fired. That is a further indicator of unlawful motivation, see, e.g., U.S. Rubber Co. v. NLRB, 384 F.2d 660, 662–663 (5th Cir. 1967); Sterling Aluminum Co. v. NLRB, 391 F.2d 713, 723 (8th Cir. 1968); NLRB v. Coast Delivery Service, 437 F.2d 264, 268–269 (9th Cir. 1971), since it evidences a lack of belief that Trail had actu- ally engaged in misconduct. See Automobile Workers v. NLRB, 455 F.2d 1357, 1367 (D.C. Cir. 1971). And by failing to question Trail concerning whether he had engaged in mis- conduct, as well as by failing to enable him to defend him- self by explaining what had occurred, Respondent failed to conduct a meaningful investigation of the purposed mis- conduct for which it was firing him. That lends added sup- port to an inference of unlawful motivation. For, it shows that Respondent was not truly interested in whether mis- conduct had actually occurred. See, e.g., W. W. Grainger v. NLRB, 582 F.2d 1118, 1121 (7th Cir. 1978); NLRB v. Gogin, 575 F.2d 596, 601–602 (7th Cir. 1978); NLRB v. Ayer Lar Sanitarium, 436 F.2d 45, 48 (9th Cir. 1970). Respondent argues that there is no evidence that it har- bored animus toward the Union and its employee supporters. Yet, ‘‘[e]ven without direct evidence, the Board may infer animus from all the circumstances.’’ (Citation omitted.) Elec- tronic Data Systems Corp., 305 NLRB 219, 219 (1991). Such an inference can be drawn, in fact, from collective evaluation of the factors reviewed in the preceding para- graphs. Indeed, ‘‘[t]iming alone may support anti-union ani- mus as a motivating factor in an employer’s action.’’ (Cita- tion omitted.) NLRB v. Rain-Ware, Inc., 732 F.2d 1349, 1354 (7th Cir. 1984). Nevertheless, contends Respondent, any inference of ani- mus—and of unlawful motivation, as well—is dissipated by two added factors: First, that, knowing of his union support, Respondent still conferred a safety award—a certificate and $700—on Schusted and, in addition, gave pay increases to three other employees who had sat with him while he served as union observer during the representation election and, sec- ond, that two other employees had been discharged in the past for infractions similar to those for which Trail was fired. However, neither factor is as persuasive as Respondent con- tends. An employer’s failure to discriminate against every union supporter does not disprove a conclusion that it discriminated 898 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD against one of them. See NLRB v. Challenge-Cook Bros. of Ohio, Inc., 374 F.2d 147, 152 (6th Cir. 1967); Nachman Corp. v. NLRB, 337 F.2d 421, 424 (7th Cir. 1964); NLRB v. W. C. Nabors Co., 196 F.2d 272, 276 (5th Cir. 1952), cert. denied 344 U.S. 865 (1952). For, as put colorfully in another context, ‘‘a piece of fruit may well be bruised with- out being rotten to the core.’’ Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 880 (1984). Discharge of ‘‘a single dissident may have—and may be intended to have—an in terrorem effect on others,’’ Rust En- gineering Co. v. NLRB, 445 F.2d 172, 174 (6th Cir. 1971), ‘‘by making ‘an example’ of [one] of them.’’ NLRB v. Shedd-Brown Mfg. Co., 213 F.2d 163, 175 (7th Cir. 1954). As pointed out in section I, the Union failed to secure a ma- jority of votes in the October 14 representation election. Schusted’s award and the pay increases granted to the other employees were not conferred until after that date. Thus, by the time of those events, Respondent had no further need to deter union support by demonstrating its economic power to disadvantage employees. To the contrary, conferring those benefits afforded Respondent with an inherent opportunity to dissuade those employees from renewing any effort to secure representation. As to the two other dischargees, their infractions were of greater severity than the asserted misconduct attributed to Trail. One, Clarence Brown, was terminated for taking money from passengers. The other, Bonnie Lenarz, was fired for soliciting passengers to write letters to Respondent on be- half of her husband, whom Respondent had earlier dis- charged. Not only did Lenarz’ conduct inherently undermine Respondent’s disciplinary authority, but both of those termi- nated employees affirmatively involved passengers in the ac- tions for which the discharges were made—that is, the pas- sengers were not simply passive witnesses to those two driv- ers’ misconduct. Significantly, Respondent made no effort to rely on the discharge of Lenarz’s husband as an added example of a ter- mination comparable to that of Trail. That does not appear to have been an oversight. For, like Trail, Lenarz had been a driver and, according to Respondent, he had been dis- charged for conduct which involved frightening passengers. But in Lenarz’ case, that conduct had been driving his bus in a manner which so frightened passengers that, according to Doerffler, ‘‘people were frightened to ride with him.’’ Yet, unlike Respondent’s defense to the discharge of Trail, Lenarz was not discharged for the first such incident brought to the attention of Respondent. Doerffler testified that there had been similar complaints before the one that led to Lenarz’ discharge, ‘‘and according to our company policy he received a verbal warning, the written warning,’’ and, fol- lowing a ‘‘final driving complaint,’’ he was fired. Respond- ent advanced no explanation as to why, assuming it had truly believed that Trail had frightened passengers, that ‘‘company policy’’ had not been applied to him. In sum, the two foregoing arguments, and the evidence to which they pertain, do not suffice to dissipate the evidence supporting the inference, based on a preponderance of all the evidence, that Trail’s discharge had been motivated by ani- mus toward his union involvement or, at least, suspected in- volvement. Moreover, in the final analysis, Doerffler and Nord each conceded that Trail’s discharge determination had been based on the portions of company policy addendum no. 2 italicized in section I. As concluded above, those are over- ly broad rules which deprive employees of their right to en- gage in statutorily protected activity, thereby violating Sec- tion 8(a)(1) of the Act. Because they are unlawful, any dis- charge based on them is also unlawful. In other respects, to satisfy its burden under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983), Re- spondent presented testimony by three witnesses which was unconvincing and appeared to be lacking in candor. Those conclusions are reinforced by a review of the record of that testimony, as illustrated by the examples reviewed in section I. As a result, there is no credible evidence that Trail en- gaged in any actual misconduct which frightened passengers, much less was intended to frighten passengers, nor that he engaged in any other misconduct which shows that there had been a nondiscriminatory basis for discharging him. More importantly, there is no credible evidence that Doerffler and Nord had been actually motivated by a legitimate reason which, absent Trail’s union sympathies and activities, would have motivated Respondent to discharge Trail, in any event, on September 20. In these circumstances, a preponderance of the credible evidence—Trail’s support for and activity on behalf of the Union, the extent of Respondent’s knowledge on September 20 concerning the identity of Trail as a driver who was in- volved or likely involved in an organizing campaign, the tim- ing of Trail’s discharge in relation to acquisition of that knowledge by Doerffler, Respondent’s unwillingness to ex- plain fully to Trail why he was being discharged and to offer him an opportunity to explain his side of the purported in- fraction for which he was being discharged, Respondent’s admitted reliance for that discharge on an overly broad work rule which violates Section 8(a)(1) of the Act, the existence of animus which can be inferred on the basis of the record, and Respondent’s reliance for a defense on testimony that is not credible and which fails to satisfy its burden of showing a legitimate reason for discharge that would have been acted on even had Respondent not learned of Trail’s union involve- ment—establishes that Respondent’s motivation for discharg- ing Trail had been because of his union sympathies and ac- tivities. Therefore, by discharging Trail on September 20, Respondent violated Section 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW Handicabs, Inc. has committed unfair labor practices af- fecting commerce by discharging Ronald F. Trail because of his union support and activities, in violation of Section 8(a)(3) and (1) of the Act, and by maintaining and publiciz- ing work rules which forbid employees from discussing wages among themselves, and which provide that discussing with clients problems and complaints about the company is prohibited and will be grounds for immediate dismissal, in violation of Section 8(a)(1) of the Act. REMEDY Having concluded that Handicabs, Inc., has engaged in un- fair labor practices, I shall recommend that it be ordered to cease and desist therefrom and, further, that it be ordered to take certain affirmative action to effectuate the policies of the 899 HANDICABS, INC. 5 As discussed in sec. I, supra, Respondent now concedes that the quoted portion of company policy addendum no. 1 violates the Act. Given other violations of the Act which, in section II, I conclude violated the Act, however, Respondent’s publication of a notice to employees and modification of its handbook, rescinding that rule, are not a sufficient repudiation, of themselves, to obviate the need for a remedial order encompassing the violation of Section 8(a)(1) of the Act arising from maintenance of that rule in addendum no. 1 prior to March 21, 1995. 6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and rec- ommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. 7 If 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 Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.’’ Act.5 With respect to the latter, it shall be ordered to modify its handbooks distributed to employees so that the unlawful portions of work rules in company policy addendums no. 1 and no. 2 are eliminated. It also shall be ordered to offer im- mediate and full reinstatement to Ronald F. Trail, dismissing, if necessary, anyone who may have been hired or assigned to the position from which he had been unlawfully dis- charged on September 20, 1994, or if that position no longer exists, to a substantially equivalent position, without preju- dice of his seniority or other rights and privileges. In addi- tion, it shall be ordered to expunge from its files any ref- erences to that unlawful discharge of Trail, notifying him in writing that it has done so, and, further, it shall be ordered to make Trail whole for any loss of pay or benefits suffered because of his unlawful discharge, with backpay to be com- puted on a quarterly basis, making deductions for interim earnings, F. W. Woolworth Co., 90 NLRB 289 (1950), and with interest to be paid on amounts owing as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987). On these findings of fact and conclusions of law, and on the entire record in this case, I issue the following rec- ommended6 ORDER The Respondent, Handicabs, Inc., Minneapolis, Minnesota, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Maintaining and enforcing work rules which prohibit employees from discussing wages among themselves and, further, from discussing work-related complaints and prob- lems with passengers and clients, and which state that such discussions will be grounds for immediate discharge. (b) Discharging or otherwise discriminating against Ronald F. Trail, or any other employee, because of activity and sup- port for Miscellaneous Drivers, Helpers & Warehousemen’s Union, Local No. 638, I.B.T., or any other labor organiza- tion. (c) In any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of the rights guar- anteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act. (a) Rescind work rules which prohibit employees from dis- cussing wages among themselves and which prohibit em- ployees from discussing with passengers and clients job-re- lated problems and complaints, and, furthermore, modify and republish company policy addendums no. 1 and no. 2 of em- ployee handbooks to reflect those rescissions. (b) Offer Ronald F. Trail immediate and full reinstatement to the position from which he was discharged on September 20, 1994, dismissing, if necessary, anyone who may have been hired or assigned to that position or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make Trail whole for any loss of pay and benefits suffered as a result of his unlawful discharge, with interest on amounts owing, as provided in the remedy section of this de- cision. (c) Remove from its files any reference to the unlawful discharge of Ronald F. Trail and notify him in writing that this has been done and that his discharge of September 20, 1994, will not be held against him in any way. (d) Preserve and make available to the Board and its agents, for examination and copying, all payroll and other records necessary to compute backpay and reinstatement rights as set forth in the remedy section of this decision. (e) Post at its Minneapolis, Minnesota office and place of business copies of the attached notice marked ‘‘Appendix.’’7 Copies of the notice, on forms provided by the Regional Di- rector for Region 18, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places, including all places where no- tices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protection To choose not to engage in any of these protected concerted activities. WE WILL NOT maintain nor enforce any work rule which prohibits you from discussing wages among yourselves, nor from discussing work-related complaints and problems with passengers and clients, and we will not maintain nor enforce 900 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD any work rule which states that such discussions will be grounds for immediate discharge. WE WILL NOT discharge or otherwise discriminate against Ronald F. Trail, or any other employee, because of activity and support for Miscellaneous Drivers, Helpers & Warehousemen’s Union, Local No. 638, I.B.T., or any other labor organization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights set forth above, which are guaranteed by the National Labor Relations Act. WE WILL rescind work rules which prohibit you from dis- cussing wages among yourselves and which prohibit you from discussing with passengers and clients job-related prob- lems and complaints, and WE WILL modify and republish company policy addendums no. 1 and no. 2 of our employee handbooks to reflect those rescissions. WE WILL offer Ronald R. Trail immediate and full rein- statement to the position from which he was discharged on September 20, 1994, dismissing, if necessary, anyone who may have been hired or assigned to that position or, if that position no longer exists, to a substantially equivalent posi- tion, without prejudice to his seniority or other rights and privileges, and WE WILL make Trail whole for any loss of pay and benefits he suffered as a result of our discriminatory discharge of him, with interest on the amounts owing. WE WILL remove from our files any reference to the un- lawful discharge of Ronald F. Trail on September 20, 1994, and WE WILL notify Trial in writing that this has been done and that the discharge will not be held against him in any way. HANDICABS, INC.