D & D Sewing Co.

D & D DISTRIBUTION CO D & D Distribution Company, a Division of D & D Sewing Company and Rick Lee Hock. Case 4- CA-12826 29 November 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On '13 October 1983 Administrative Law Judge David S. Davidson issued the attached decision. The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed 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 brief and has decided to affirm the judge's rulings, findings, i and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, D & D Dis- tribution Company, a Division of D & D Sewing Company, York, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the Order, except that the attached notice is substituted for that of the administrative law judge. CHAIRMAN DOTSON, dissenting. I disagree with my colleagues and would find that the General Counsel did not meet his burden of demonstrating that the Respondent had knowl- edge of Hock's concerted activity. While it is true that the Board can find knowledge by inference, it must be drawn from a reasonable evaluation of sub- stantial evidence. Here Supervisor Schaefer, who was allegedly within hearing, distance of the discus- sions, specifically denied that he overheard any of Hock's statements to the employees. Both the Re- spondent's owner Dallmeyer and its administrative director Masemer, who were not in the warehouse vicinity when the discussions occurred, testified that they were unaware of any remarks by Hock relating to wages. This leaves us then with only the graffiti on the bathroom wall, and it certainly takes a far stretch of the imagination to conclude that, 909 because the Respondent suspected that Hock was responsible for the graffiti, it served to place the Respondent on notice that Hock was also engaged in protected concerted activities. Thus, there is in- sufficient evidence on which to base a conclusion that the Respondent had knowledge of Hock's ac- tivities. i Accordingly, I would dismiss the complaint in its en- tirety. 1 In view of the foregoing, I need not decide whether Hock's activities were concerted under Meyers Industries, 268 NLRB 493 (1984), APPENDIX NOTICE To EMPLOYEES NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT discharge or otherwise discrimi- nate against our employees in regard to hire, tenure of employment, or any term or condition of em- ployment, because they engaged in protected con- certed activities. WE WILL NOT in any like or related manner re- strain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Rick Lee Hock immediate and full reinstatement to his former job or, if that job no longer exists, to substantially equivalent posi- tion, without prejudice to his seniority or any other rights or privileges previously enjoyed and We will make him whole for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings, plus interest. WE WILL notify him that we have removed from our files, and reference to his discharge and that the discharge will not be used against him in any way. D & D DISTRIBUTION COMPANY, A DIVISION OF D & D SEWING COMPA- NY Margarita Navarro and Marvin Weinberg, Esqs, for the General Counsel. Donn L Cohen and Jeffrey D. Lobach, Esqs., of York, Pennsylvania , for the Respondent. ' Contrary to our dissent:ng colleague, we agree with the judge that, to the circumstances of this case, the inference is warranted that the Re- spondent knew of employee Hock's concerted activities Most significant- ly, credited testimony establishes that about a week before his discharge, Hock engaged two employees in a 5-minute conversation about wages in the general vicinity and within hearing distance of Hock's supervisor, Schaefer DECISION STATEMENT OF THE CASE DAVID S. DAVIDSON, Administrative Law Judge. This case was tried at York, Pennsylvania, on January 26, 277 NLRB No. 97 910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1983 The charge was filed by Rick Lee Hock on April 8, 1982, and the complaint was issued on August 30, 1982. The sole issue is whether Respondent discharged Hock because he engaged in union and protected activity in seeking a wage increase for Respondent's employees or because of his record of attendance at work. On the entire record, including my observation of the demeanor of the witnesses, and after consideration of the briefs filed by the General Counsel and Respondent, I make the following FINDINGS OF FACT 1. JURISDICTION The Respondent, a Pennsylvania corporation, engages in the business of warehousing raw and manufactured goods at York, Pennsylvania. It performs services annu- ally valued in excess of $50,000 for out-of-state custom- ers. Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act II THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts 1 Background Donald Dallmeyer is a co-owner of D & D Sewing Company and responsible for its overall management. Donald Masemeri is administrative director of the D & D Distribution Company, a Division of D & D Sewing and is responsible for the overall operation of the divi- sion. Eugene Schaefer is warehouse manager for the di- vision and the direct supervisor of its division's eight or nine warehouse employees.2 Rick Hock was a ware- house employee from January 1979 until his discharge on March 17, 1982. 2. Hock's alleged concerted and union activities As a regular practice Respondent conducted a wage and performance review for each warehouse employee annually in early April and granted wage increases at that time For several months before his discharge, Hock had recurring conversations about the prospective wage increases with fellow employees Shenberger, Zorbaugh, and Foray in the plant while at work. In these conversa- tions, Hock stated that he and the other employees de- served substantial increases. Schaefer was sometimes within earshot when these conversations occurred. Within a week of his discharge Hock, Shenberger, and Zorbaugh had a discussion for about 5 minutes at the front of the warehouse with Schaefer standing nearby. In it he said that they deserved more money, that they were going to ask for substantial raises in April, and that if they did not get them they should consider contacting a i Masemer's name is incorrectly spelled as "Measmer" in the tran- script 2 Hock's uncontradicted testimony establishes that Schaefer, a salaried employee, hired Hock, gave Hock a wage increase, directed the work of the employees, had a separate office, and sent employees home when work was slow I find that Schaefer was a supervisor within the meaning of the Act union representative to see if they could do better with a union's help.3 In late 1981 among the writings on the walls of the men's room appeared the word "union" and a statement to the effect that the employees deserved a $1-an-hour raise. The walls were repainted sometime in January, but thereafter the word "union" reappeared and remained through the rest of Hock's tenure.4 There were other typical graffiti on the walls, and management was con- cerned about them. Donald Dallmeyer testified that he thought Hock wrote the graffiti on the walls but that it did not enter into the decision to terminate Hock because Respondent had no proof that he was responsible. 3. Hock's termination On March 8, 11, and 12, 1982, Hock was late for work. He had a history of considerable tardiness and some absenteeism as set forth more fully below. He con- cededly had been warned about his attendance in No- vember 1981, and it is disputed whether he had been given other warnings as well. According to Masemer, on the afternoon of Friday, March 12, after Hock had been late three times in 1 week, he decided to recommend to Dallmeyer that Hock be discharged. Dallmeyer was not in the office the fol- lowing Monday or Tuesday so that he was not able to bring the matter to Dallmeyer until March 17. Masemer and Dallmeyer testified that at that time Masemer gave Dallmeyer his recommendation, along with Hock's at- tendance record and the prior written warning, and Dall- meyer gave Masemer permission to discharge Hock based on his record. At the end of the workday, Masemer called Hock into his office and told him that Respondent was going to have to let him go because of his tardiness and absentee- ism. Hock argued that he had improved his record since a meeting 5 months earlier and disputed the reason for his discharge. Masemer said that there was no other reason and referred to earlier warnings. Hock asked for another chance, but Masemer replied that it would not be in Respondent's best interest to keep him. Hock left, saying that he was going to talk to Dallmeyer about it.s Hock went to Dallmeyer and told him that he had just been fired. Dallmeyer said that he knew about it because Masemer had talked to him about it earlier in the day. Hock asked Dallmeyer to intercede for him to get his job back, but Dallmeyer refused. Hock then questioned whether lateness was the real reason for his discharge. 3 These findings are based on the testimony of Hock Shenberger did not testify, and Zorbaugh corroborated Hock only to the extent of testi- fying that Hock talked to them about getting an increase for himself. Nonetheless, I have credited Hock in this regard. Zorbaugh was clearly an unwilling witness His testimony on direct examination was guarded and showed stress, while on cross-examination by Respondent he testified more freely. I concluded that Zorbaugh, who was employed by Re- spondent at the time of the hearing, was extremely sensitive to the impact of his testimony on Respondent and sought to separate himself from the objective of Hock's discussions 4 Hock testified concerning the graffiti without contradiction 5 The findings about this conversation are based on a composite of the testimony of Hock and Masemer The only material difference between their testimonies concerns whether Masemer referred to repeated warn- ings, as he testified, or to a single warning as Hock testified D & D DISTRIBUTION CO Dallmeyer replied that the reason was not really his late- ness, that it was more because of his attitude, and that he had an attitude problem Hock asked what he meant, and Dallmeyer said that he just had an attitude toward the Company that they did not like Dallmeyer declined to elaborate further and Hock left.6 On the day after Hock's discharge, Masemer called Zorbaugh into his office. Masemer said that he imagined that Zorbaugh knew Respondent had terminated Hock, and Zorbaugh said that-he did. Masemer told Zorbaugh that he had said things about the Company that Masemer did not like and that Zorbaugh was either to stop saying them or leave. Masemer also said that he did not like Zorbaugh's attitude toward the Company and that if Zorbaugh did not change his attitude they would let him go.7 At that time, Masemer also assigned certain duties to Zorbaugh which had previously been performed by Hock. 4. Hock's work record In late January 1982, Hock had a discussion with Ma- semer about his work. Masemer told him that he was doing an outstanding job and that Masemer was happy with his work.8 Also in January, Masemer asked him to act as assistant to Foreman Schaefer to help him out when he got bogged down. Hock declined the offer be- cause he thought he should get a pay raise for taking on added work and responsibility.9 Hock's attendance record from January 1, 1981, until his discharge is summarized in the following chart: 8 Hock so testified. Dallmeyer testified that when Hock asked whether he had been told the real reason for his discharge, Dallmeyer asked him what he thought the reason was and that after some discussion of his at- tendance record Hock stated that he believed he was terminated because Masemer did not like him. According to Dallmeyer, after he tried unsuc- cessfully to find out why Hock felt that way, he agreed with Hock that he was probably right, that there might be other reasons why Masemer disliked him, but declined to do anything more for him, felling him that he had had his opportunities and that the decision stood that he. was dis- charged because of absenteeism and lateness I have credited Hock Dall- meyer's version that he probed Hock to find out what other reason Hock had in mind and then agreed that Masemer probably disliked Hock sounds contrived , while Hock's version is echoed by Masemer's warning to Zorbaugh the next day ° Zorbaugh testified that Masemer warned him about things he had said about the Company, but that he did not remember whether Masemer said anything about changing his attitude However, he had given a state- ment under oath before a stenographer during the investigation of this case in which he stated that Masemer warned him about his attitude I have accepted that statement as a record of his past recollection, and I have credited his testimony and statement over the denials of Masemer and Schaefer. Zorbaugh, a current employee, was clearly not hostile to Respondent and, as set forth above , was much more guarded in his re- sponses to the General Counsel's questioning than Respondent's Indeed, he impressed me as holding back what he knew in support of the com- plaint, and not as seeking to bolster it. 8 Hock so testified, without contradiction 9 Hock so testified, contrary to Masemer and Dallmeyer. Zorbaugh testified that Hock told him that he had been offered the job a day or two before it was offered to and accepted by Zorbaugh For reasons al- ready set forth , I credit Zorbaugh as to Hock's statement to him in Janu- ary As there was no reason for Hock to have misrepresented the matter to Zorbaugh in January, I find that Zorbaugh's testimony corroborates Hock in this regard and I have credited him Days Late Days Days ' Sick(Non- Absent- Paid) Excused 911 Days Absent- Unex- cused January 1981 9 1 February 15 1 March 10 1 April 10 1 May 7 1 June 2 July 1 August 1 September 4 October 1 November 6 2 December 3 January 1982 9 1 February 6 2 March 3 On March 24, 1981, Masemer orally warned Hock about his attendance record and placed a memorandum reflecting what he said in Hock's personnel file. The memorandum stated: Because of repeated warnings concerning your at- tendance and tardiness, I have had no other alterna- tive than to give Rick a specific warning concern- ing them. In the last three month period he has been late or absent 54% of the scheduled workdays. Upon presenting this to Rick, his answer to me is that he understood and will make a concerted effort to correct. Before giving Hock this warning, Masemer had told Hock a number of times that he had to become more at- tentive to being there regularly.1 o On November 16, after a string of six tardinesses and two excused absences on consecutive scheduled work- days, Masemer called Hock in again and discussed his at- tendance record with him. Masemer told Hock that his attendance record showed that he had excessive ab- sences, that his record needed improvement, and that if there was no substantial improvement, Respondent had no alternative than to terminate him for that reason. Hock said he would make every effort to correct his tar- diness record. i 1 Masemer had prepared the following 10 Masemer so testified Hock denied that he was warned about his at- tendance before November 1981 I have credited Masemer in this regard Hock's attendance record shows that he was late about half of the days he worked during the first 3 months of 1981 As of March 24, he had been late 9 out of the last 10 days he had worked While he was late 10 times in April and 7 in May without receiving further discipline, he was on time for 5 consecutive days after March 24, and his attendance record for several months after May showed substantial improvement Although the improvement could be coincidence and the file memo a contrived at- tempt to justify Hock's discharge after the fact, I find it more likely that Masemer warned Hock in March causing him to improve his record gradually until he started to backslide in November when he was admit- tedly warned again 11 Masemer testified to this conversation without contradiction 912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD written statement, which Hock signed and which was placed in his personnel file: Effective Monday, November 16, 1981, please be advised that your attendance record indicates an ex- cessive amount of late, excused, unexcused and other absenteeism. Because of the importance of your position in our operation, it is necessary for us to be able to depend on your attendance every workday. Please make the necessary arrangements to assure that you're available for work every workday from 7:00 AM until 4:30 P.M. An improvement in your attendance is necessary. Otherwise appropriate disciplinary actions will need to be administered. Although the record shows the number of times that Hock was tardy and absent after the November warn- ings, as set forth in the chart above, the evidence is in sharp dispute as to how late Hock clocked in on the days he was tardy and whether he received any further warn- ings about his attendance. According to Masemer, Re- spondent's policy was to consider as late anyone who clocked in 3 minutes or more after the 7 a.m. starting time. He testified that most of the time when Hock was late, he was 10 to 20 minutes late, and that on several occasions Masemer observed Hock entering late and warned him that he was "skating on thin ice." Accord- ing to Hock, he was not warned after November 16 and he was not docked for lateness in 1982 under Respond- ent's policy of docking employees who clocked in after 7:05 or 7:06 a.m. Timecards and pay records which might have disposed of the conflict as to the degree to which he was late and whether he was docked were not offered by either side. In the absence of such records, I have credited Hock's uncontradicted testimony that he was not docked for lateness in 1982 and his contradicted testimony that he received no further warnings. Ma- semer's thin ice warnings were allegedly given to Hock during the same period when, according to Hock's un- contradicted testimony, Masemer told him he was doing a good job and that Masemer was happy with his work. If Masemer were unhappy with Hock's attendance to the point of telling him he was skating on thin ice, surely the time to tell Hock this was when they discussed his work and not merely when Masemer was standing at the time- clock and saw Hock entering, as he testified. Indeed, if Hock had often been 10 to 20 minutes late in January or February it seems likely that Hock not only would have been docked and warned, but that following the Novem- ber written warning, Respondent would have taken action then to discipline him. Finally, Masemer's testimony about when and how often he orally warned Hock in January and February vacillated and is contradicted by his statement in an affi- davit given during the investigation of the case that after the November warning he had no further discussions with Hock about his absenteeism and tardiness.12 I find that Hock was not docked for tardiness in 1982, that he was not more than 5 minutes late on any occasion during that period, and that he received no furher warnings from Masemer after November 1981. B. Concluding Findings 1. Concerted activity Hock's testimony establishes that he had discussed with other employees their prospects for getting bigger wage increases than in the past and the possibility of bringing in a union if they did not succeed. Although individual gripes about wages are not con- certed activity, Hock's conversations encompassed the wages of other employees and looked toward union or- ganization if wage evaluations were not successful. His conversations were characteristic of concerted preunion activity which Section 7 was intended to protect. 13 2. Respondent's knowledge of Hock's activities The evidence of Respondent's knowledge of Hock's activities is circumstantial. At best Hock could only testi- fy that Schaefer could have overheard some of the con- versations and particularly the one within a week of his discharge. Schaefer, Masemer, and Dallmeyer denied knowlege of his activities. The General Counsel points to the small size of the plant and graffiti on the men's room wall, both before and after the wall was repainted, as warranting the inference that Respondent knew of Hock's activity. I find these factors sufficient to support the inference. Moreover, in the light of Dallmeyer's testi- mony that Respondent believed Hock responsible for the graffiti and Masemer's admonition to Zorbaugh the day after Hock's discharge, I find that the inference should be drawn over the denials of Respondent's officials. I find that Dallmeyer and Masemer knew or had reason to believe that Hock had been talking to other employees about larger-than-usual increases and the possibility of seeking union representation if Respondent did not grant them. 3. The cause of Hock's termination There is also evidence to support the General Coun- sel's theory that Hock's attendance was not the cause of his discharge. I have found that Hock was not docked for tardiness in 1982, was not more than 5 minutes late on any occasion after January 1, and was not spoken to about his attendance after November. If, indeed, Hock's tardiness after November were a matter of continuing concern, it would appear that the time for action, and not merely further oral warnings, would have been in January when Hock was late every day during the second week, and 2 days in each of the next 2 weeks. Moreover, when Masemer spoke to Hock about his work 12 I find disingenuous Masemer's attempt to explain away the contra- diction on the ground that he understood the investigator's questions to refer to formal discussions only. 13 Mushroom Transportation Co. v NLRB, 330 F 2d 683 (3d Cir 1964) See Jeannette Corp., 217 NLRB 653 (1975), enfd 532 F 2d 916 (3d Cir 1976) D & D DISTRIBUTION CO. in late January, he praised it and said nothing about his attendance. Respondent also offered him the opportunity to assist Schaefer as foreman. If Hock's attendance were a source of serious concern, certainly one would expect Masemer to have mentioned it when he praised Hock's work and either to have chosen someone other than Hock to assist Schaefer or to have conditioned the pro- posal on an improvement in his attendance. That Hock's lateness in March, which was less aggra- vated than in January or February,14 was not the cause of his termination is directly shown by Dallmeyer's state- ments to him immediately after his termination. Then Dallmeyer told him that the reason for his termination was not really his lateness but that it was more because of his attitude and that he had an attitude toward the Company that they did not like, but declined to elabo- rate further. These statements not only show that Hock's attendance record was not the cause of his termination, but also support the inference that Hock's concerted ac- tivities were the cause of his termination. While attitude may refer to a number of mental states, when attitude is given as a reason for discharge, it has often been viewed as synonomous with union or concerted activity. 1 s In the absence of further explanation by Dallmeyer and in the light of Masemer's statements to Zorbaugh the next day, I find that to have been the reference in this case. I find that the General Counsel has sustained the burden of establishing prima facie that Hock was dis- charged because of his concerted activities protected by Section 7 of the Act. The question remains whether Re- spondent has shown that case is overcome by evidence which establishes that Hock would have been terminated on March 17 for absenteeism even in the absence of his protected concerted activity. i 6 Apart from urging different credibility resolutions and findings based on them, Respondent relies on evidence that prompt attendance was important to the conduct of its business, that its treatment of Hock followed the rules and procedures of its employee handbook, that Hock's attendance record was the worst of all employees on the payroll as of the time of his discharge, that Respondent had terminated three other employees for similar reasons, and that Respondent had never been found previously to have engaged in any unfair labor practices. With respect to the first, Masemer testified that it was important for employees to be at work on time because Respondent's business required the loading and unload- ing of trucks, which on many occasions had to be attend- ed to the first thing in the morning. As each employee had specific assigned tasks if any employee was missing, the work force had to be redistributed. There can be no doubt that prompt and regular attendance was important to Respondent, as it is to most employees, Indeed, its im- 14 Flock was on time the first full week in March and also on the 3 days immediately preceding his termination i' Pay NSave, 257 NLRB 1228, 1230 (1981), Turtle Creek Convalescent Center, 235 NLRB 400, 405 (1978), Virginia Metalcrafters, 158 NLRB 958, 962 (1966), enfd 387 F 2d 379 (4th Cir 1967), Winn Dixie Greenville, 157 NLRB 657, 662 (1966), enfd 379 F 2d 958 (4th Cir 1967) 16 Wright Line, 251 NLRB 1083 (1980), enfd 662 F2d 899 (Ist Cir 1981), cert. denied 455 U S 989, NLRB v Transportation Management Corp, 462 U S 393 (1983) 913 portance is shown not only by the factors mentioned by Masemer but also by the fact that Respondent's employ- ee handbook contains the following provisions: ABSENCE AND TARDINESS YOU are IMPORTANT to your cti.-workers and your company, EVERY Absence, no matter what the reason, causes many of your co-workers to suffer unnecessary alternate scheduling . It also causes delay in performance of services. The cus- tomers for whom you work will buy more service, only when we deliver as scheduled. In order to pro- tect Jobs and Earnings, habitual unexcused ab- sences, and/or lateness, will result in disciplinary actions. ABSENCE: If you will be absent , call between 6:45 a.m. ' and 7:00 a.m . Be sure to report when you will be back to work and the reason for your being absent. If you cannot call , be sure to have someone else "call in" for you. Note: After an absence of even one day- "Call In" in the afternoon of the day prior to your return to work. By "calling in" work will be planned for your return. CAUTION: Excessive Absences-for whatever the reason-may reduce your Vacation Pay amount! The handbook further provides in part B: ABSENCE Absence of unexpected necessity, MUST be re- ported to your Supervisor prior to 7:00 A.M. on the day of absence. Tell why you are unable to come to work, and the day you expect to be able to return to work. NOTE: After an absence of even one day- CALL IN the afternoon of the day prior to your return to work. LATENESS If-on occasion-you are delayed and will be late on arrival at your work area, IMMEDIATE- LY NOTIFY YOUR SUPERVISOR. Your daily, and weekly work time is carefully planned and scheduled to accomplish customer needs. NOTE: Repeated lateness could result in discipli- nary action. Finally, it also provides: Any infractions of the Rules in PARTS "A", "B", or "C", will normally result in: 1. First offense-verbal reprimand. 2. Second offense-written warning. 914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Third offense-immediate discharge. Although Respondent's concern with attendance gen- erally, and Hock's attendance in March and November 1981, is not to be doubted, the question remains whether tardiness in January, February,' and March 1982 would have caused Respondent to take the normal next step in- dicated in the handbook. For the reasons already men- tioned, the facts that Hock was not docked, was not more than 5 minutes late on these occasions, and was not warned even when Masemer spoke to him about his work in late January, give reason to doubt that Respond- ent saw Hock's tardiness in January, February, and March as a matter of sufficient concern for further disci- pline. Moreover, although Respondent had a normal pro- cedure for dealing with infractions of rules, the progres- sion of discipline provided under the terms of the rules was not inflexible, and the rule relating to tardiness dealt with repeated lateness, itself an elastic term. When Ma- semer warned Hock in November, he threatened "appro- priate disciplinary actions" not termination in the written memorandum which Hock signed. While Masemer testi- fied that the disciplinary action referred to was discharge and that disciplinary action could only mean discharge after a written warning, on its face the procedure was not so rigid, and significantly the, written warnings given other employees who were discharged for poor attend- ance all threatened discharge specifically for further re- peated tardiness or absence. i 7 Respondent placed in evidence a chart comparing Hock's attendance record for a 1-year period to all other employees actively employed at the time of Hock's ter- mination. There is no question that Hock's attendance was markedly worse than any other employee shown on the chart.18 Respondent also placed in evidence attend- ance records of three other employees discharged for poor attendance which Respondent contends show that its treatment, of Hock was comparable to that of other employees. In affidavits given during the investigation of this case, Masemer stated that in the 2 years he had been with Respondent, Hock was the only employee terminat- ed because of lateness. He testified in explanation that he had been mistaken and discovered his mistake when he reviewed company files in response to a subpoena and the three other employees came to light. Donald Dall- meyer similarly stated in his affidavit that Hock was the first person terminated for lateness or absenteeism in the history of D & D Distribution and testified in explana- tion that he gave the affidavit from memory and recog- nized that three others had been terminated for the same reason as Hock when he reviewed the records. A look at the records of the other three employees raises a question whether the statements in the affidavits were made because of oversight or because neither Ma- semer nor Dallmeyer deemed that the cause of the other discharges was the same as the cause of Hock's dis- charge. Leroy Moffitt worked for Respondent from De- cember 1980 through August 1981. Moffitt was late once " The file of Randy Dallmeyer contains no evidence of any warning. See discussion in his termination below is Hock was late 47 times. No other employee was late more than nine times in January, twice each in February and March, and four times in April. He had one unexcused absence in Febru- ary, three in March, and six in April. Moffitt was orally warned on March 23, and on April 29 he was given a written warning that "repeated lateness or absences would result in your immediate termination." Specific reference was made to the handbook procedure of termi- nation for further occurrence after a written notice. For the next 4 months, Moffitt was not late and had no unex- cused absences. However, he was terminated effective August 31. His attendance record summary states that he was terminated after missing the first week of work in September. The payroll change notice in Moffitt's file dated September 2 states "Excessive Absences" as the reason for his termination. There are notes in the file that Respondent became aware in late March that Moffitt suf- fered from alcoholism and learned on September 2 that Moffitt had been admitted to an alcoholic rehabilitation institution on August 31 and was scheduled to remain there for a month.19 Scott Zercher, became a full-time employee of Re- spondent in September 1980 and was terminated on Feb- ruary 16, 1981. A payroll change notice bearing that date states that he was terminated for excessive absenteeism. On January 29, 1981, he was given a written warning that continued tardiness and absenteeism would result in his immediate discharge. His attendance record for 1981 shows that he was late five times in January and had four unexcused absences before he was given the warn- ing.20 In February, Zercher was late twice and had four unexcused absences, two of which came on the work- days immediately preceding his discharge. The third employee cited by Respondent was Randy Dallmeyer, son of Respondent's co-owner Donald Dall- meyer. Randy Dallmeyer, who owned a seasonal busi- ness, had worked for Respondent in previous winters. He went on Respondent's payroll effective January 18, 1982, and was terminated from it on February 16, 1982, after 4 weeks. The attendance record in his file shows that he was late four times in January and five times in Febru- ary. He had one unexcused absence in January, two in February, and two excused absences in February. Al- though Masemer testified that he was terminated because of excessive tardiness, there is no notation in his person- nel file to show that he had any prior warnings or the reason for termination. Masemer denied that Randy Dall- meyer left voluntarily to resume his own business, but Hock testified otherwise. None of these cases are in fact comparable. Moffitt and Zercher were clearly terminated for absenteeism. While Respondent attributes Hock's termination to both tardiness and absenteeism, the alleged trigger was tardi- ness, and he had no absences other than 3 days for illness in 1982. In the case of Randy Dallmeyer, there is sub- stantial doubt whether he was terminated voluntarily or involuntarily. But in any event he was in a class by him- self, both because of the seasonal nature of his employ- is Although Masemer testified that Respondent did not know of Mof- fitt's alcoholism while he was employed by Respondent, the March file memo indicated otherwise. 20 His attendance record for 1980 is not in evidence. D & D DISTRIBUTION CO 915 ment and his relationship to Respondent 's co-owner, and he had worked but briefly in 1982 compiling a poor record of both tardiness and absence. In the light of these records , Masemer's statement in his affidavit that in the 2 years of Masemer's employment Hock was the only employee terminated for lateness appears to be cor- rect, and Respondent has failed to show that any em- ployee was terminated under circumstances similar to Hock's Granted that there is always a first time for every- thing, that Hock's record of tardiness was substantially worse than that of any other employee in the year before his discharge, and that Respondent has no past record of unfair labor practices, I find that Respondent has failed to show that Hock would have been terminated for tar- diness and absenteeism on March 19 even in the absence of his concerted activity and has failed to overcome the evidence which supports a finding of the violation al- leged in the complaint. Accordingly, I find that by dis- charging Hock, Respondent violated Section 8(a)(1) of the Act III. THE REMEDY Having found that Respondent engaged in unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. As ] have found that Respondent unlawfully dis- charged Rick Lee Hock, I shall recommend that Re- spondent be ordered to offer him immediate and full re- instatement 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. I shall fur- ther recommend that Respondent be ordered to make him whole for any loss of earnings he may have suffered as a result of the discrimination against him by payment to him of the amount he normally would have earned from the date of his termination until the date of Re- spondent's offer of reinstatement, less net earnings, to which shall be added interest to be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977).''' On the basis of the above findings of fact and the entire *ecord in this case, I make the following CONCLUSIONS OF LAW 1. D & D Distribution Company, a Division of D & D Sewing Company is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2. By discharging Rick Lee Hock because of his pro- tected concerted activities, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act 21 See also Isis Plumbing Co„ 138 NLRB 716 (1962) On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed22 ORDER The Respondent, D & D Distribution Company, a Di- vision of D & D Sewing Company, York, Pennsylvania, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging or otherwise discriminating against employees in regard to hire or tenure of employment, or any term or condition of employment, because they engage in protected concerted activities. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Rick Lee Hock immediate and full reinstate- ment to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed, and make him whole for any loss of earnings and other benefits suffered as a result of the discrimina- tion against him in the manner set forth in the remedy section of the decision. (b) Remove from its files any reference to the unlawful discharges and notify the employees in writing that this has been done and that the discharge will not be used against him in any way. (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its York, Pennsylvania place of business copies of the attached notice marked "Appendix."22 Copies of the notice, on forms provided by the Regional Director for Region 4, after being signed by the Re- spondent'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 notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 22 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations , the findings, conclusions , and recommended 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 pur- poses 23 If this Order is enforced by a judgment of a United States court of appeals, the woids in the notice reading "Posted by Order of the Nation- al 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 "