Mccotter Motors Co.

764 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD McCotter Motors Company and International Brotherhood of Teamsters , Chauffeurs, Ware housemen and Helpers of America , Local Union No 776, AFL-CIO I Cases 4-CA-13374 and 4-CA-13736 November 22 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On January 31 1984 Administrative Law Judge James L Rose issued the attached decision The Respondent and the General Counsel filed excep tions and a supporting brief and the Respondent filed an answering beef 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 briefs and has decided to affirm the judge s rulings findings 2 and conclusions only to the extent consistent with this Decision and Order 3 1 The judge found that the Respondent institut ed a number of changes in policies and work rules without notice to or bargaining with the Union as the certified bargaining representative of its ware house employees We adopt the judge s finding that the Respondent violated Section 8(a)(5) and (1) of the Act when it unilaterally changed its rule on access to restrooms eliminated the employees smoking breaks altered their lunch hour and es tablished a new policy concerning damaged mer chandise The judge further found that antiunion consider ations motivated each of the aforementioned unilat eral changes and that the Respondent therefore also violated Section 8(a)(3) Contrary to the judge s analysis however the General Counsel does not contend that the damaged merchandise rule violated Section 8(a)(3) Furthermore the record shows that the other changes were prompt ed by legitimate business considerations and were I On November 1 1987 the Teamsters International Union was read mitted to the AFL-CIO Accordingly the caption has been amended to reflect that change 2 The General Counsel has excepted to some of the judge s credibility findings The Board s established policy is not to overrule an administra tive law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect 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 re versing the findings S We adopt the judge s finding that the Respondent violated Sec 8(a)(3) and ( 1) by discharging Union Steward Diane Rocek We also adopt the judge s dismissal of complaint allegations that the Respondent violated Sec 8(a)(1) of the Act through threats and interrogations by its supervisor Maurice Shelton not in response to longstanding problems knowing ly tolerated The Respondent imposed the limita tion on access to the restrooms in order to control graffiti in the Government facility that the Re spondent occupied It eliminated smoking breaks in order to prevent employee abuse and concomitant loss of working time Finally the Respondent changed the lunch hour to ensure that supervisors and employees worked concurrent hours Accord ingly we find that the Respondent did not violate Section 8(a)(3) of the Act by its unilateral changes 4 2 On October 15 1982 the Respondent laid off employees Donald McSherry and Ralph Hopkins for 2 days for purported disciplinary reasons 5 On October 29 Hopkins and McSherry were again laid off along with Joseph Stanbach and Kevin Dray ton for purported economic reasons specifically an alleged reduction in orders In neither instance did the Respondent notify nor consult with the Union before implementation of the layoff deci sions The judge found that the disciplinary and economic reasons offered by the Respondent for the respective layoffs were mere pretext for antiun ion motivation He therefore found that the layoffs violated Section 8(a)(3) and (1) The Respondent contends in exceptions that no specific 8(a)(3) allegation concerning the layoffs was set forth in the complaint and that the issue was not fully litigated The General Counsel con curs in this contention Accordingly we find that the Respondent did not violate Section 8(a)(3) of the Act with regard to either layoff On the other hand we agree with the General Counsels argument in support of exceptions that the Respondent failed to meet its statutory obliga tion to notify the Union prior to implementation of both layoffs so that the Union would have an op portunity to bargain about the decisions to lay off unit employees and the effects of those decisions As recently explained by the Board in Lapeer Foundry & Machine 289 NLRB 952 (1988) an em ployer has a statutory obligation to bargain about 4 We also reverse the fudge s finding that the Respondent violated Sec 8(a)(3) and ( 1) when it suspended Richard Quigley for violation of its new policy on restroom use There is no evidence to suggest that the dis cipline of Quigley was illegally motivated The Respondent similarly en forced its restroom notification rule against nonbargaining unit employ ees The discipline of Quigley was however derivative of the Respond ent s unilaterally imposed restroom policy and as such was violative of Sec 8(a)(5) and (1) E g G J Aigner Co 257 NLRB 669 673-675 677 (1981) The fudge s make whole remedy for Quigley remains appropriate because he suffered loss of I day s wages as a result of the Respondent s unfair labor practice In addition we will require the Respondent to ex punge reference to Quigley s unlawful discipline from its personnel records and to notify Quigley in writing that it has done so 5 The judge found that General Manager Stratmeyer s testimony con cerning the alleged disciplinary nature of these layoffs was general and vague 291 NLRB No 115 MCCOTTER MOTORS CO 765 an economically motivated decision to lay off em ployees In the absence of any credible affirmative evidence to the contrary and notwithstanding the absence of any claim of antiunion discriminatory reasons for the layoffs there in no record basis for finding that the decisions to lay off unit employees on October 15 and 29 were not mandatory subjects of bargaining Futhermore the Respondent has failed to prove the Union effectively waived its right to bargain about the layoffs or that there were any compelling economic circumstances justi fying unilateral action Consequently the Respond ent s failure to notify and bargain with the Union about the layoffs violated Section 8(a)(5) and (1) 6 ORDER The National Labor Relations Board orders that the Respondent McCotter Motors Company Me chanicsburg Pennsylvania its officers agents suc cessors and assigns shall 1 Cease and desist from (a) Refusing to bargain with International Broth erhood of Teamsters Chauffeurs Warehousemen and Helpers of America Local Union No 776 AFL-CIO as the exclusive representative of the employees in the following appropriate unit All warehousemen and drivers employed by McCotter Motors Co at its Mechanicsburg Pennsylvania facility excluding all other em ployees office clericals, lawyers guards and supervisors as defined in the Act (b) Unilaterally laying off unit employees with out providing the Union with notice and opportu nity to bargain about the layoff decisions and their effects (c) Refusing to bargain in good faith by unilater ally promulgating new rules concerning the use of restroom facilities eliminating break periods re quiring employees to take a 1 hour lunch period and requiring them to pay for damaged merchan dise (d) Discharging employees because of union or other protected concerted activities (e) In any like or related manner interfering with restraining, or coercing employees in the ex ercise of the rights quaranteed them by Section 7 of the Act 2 Take the following affirmative action neces sary to effectuate the policies of the Act Having found that the Respondent violated Sec 8(a)(5) but not Sec 8(aX3) by failing to notify and bargain with the Union over the October 15 and 29 layoffs, the judge s remedy of reinstatement and full backpay remains appropriate See Lapeer Foundry supra, at 954-955 However in terest accruing after January 1 1987 shall be computed in accordance with New Horizons for the Retarded 283 NLRB 1173 (1987) (a) On request bargain collectively with the Union about the decisions to lay off unit employees Donald McSherry and Ralph Hopkins on October 15 1982 and McSherry Hopkins Joseph Stan bach and Kevin Drayton on October 29 1982 and about the effects of those decisions on unit employ ees (b) Offer the above laid off employees immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equiva lent positions without prejudice to their seniority or any other rights or privileges previously en joyed, and make them whole for any loss of earn ings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the decision (c) Rescind the unilateral changes made in unit employees working conditions concerning the use of restroom facilities break periods lunch hour and damaged merchandise (d) Make whole all employees who suffered losses as a result of the above changes, including Richard Quigley who was suspended for 1 day on October 4 1982 for breaching the unilaterally changed rule concerning access to restroom facili ties (e) Offer Diane Rocek immediate and full rein statement to her former job or if that job no longer exists to a substantially equivalent position without prejudice to her seniority or any other rights or privileges previously enjoyed and make her whole for any losses and other benefits she may have suffered as a result of the discrimination against her in the manner set forth in the remedy section of the decision (f) Remove from its files any reference to the un lawful discharge of Diane Rocek to the unlawful suspension of Richard Quigley and to the unlawful layoffs of McSherry, Hopkins, Stanbach and Dray ton and notify these employees in writing that this has been done and that evidence of the unlawful actions will not be used against them in any way (g) Preserve and on request make available to the Board its agents for examination and copying all payroll records social security payment records timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order (h) Post at its Mechanicsburg Pennsylvania facil ity copies of the attached notice marked Appen dix 7 Copies of the notice, on forms provided by 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 Nation al Labor Relations Board shall read Posted Pursuant to a Judgment of Continued 766 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the Regional Director for Region 4 after being signed by the Respondents authorized representa tive shall be posted by the Respondent immediate ly on receipt and be maintained by it for 60 consec utive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Re spondent to ensure that the notices are not altered defaced or covered by any other material (i) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply the United States Court of Appeals Enforcing an Order of the National Labor Relations Board APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 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 Section 7 of the Act gives employees these rights To organize To form join or assist any union To bargain collectively through representa tives of their own choice To act together for other mutual aid or pro tection To choose not to engage in any of these protected concerted activities WE WILL NOT refuse to bargain with Internation al Brotherhood of Teamsters Chauffeurs Ware housemen and Helpers of America Local Union No 776 AFL-CIO as the exclusive representative of the employees in the following appropriate unit All warehousemen and drivers employed by McCotter Motors Company at its Mechanics burg Pennsylvania facility excluding all other employees office clericals lawyers guards and supervisors as defined in the Act WE WILL NOT refuse to bargain by unilaterally laying off employees without providing the Union an opportunity to bargain about the decisions to lay off employees and the effects of those deci sions WE WILL NOT refuse to bargain in good faith by unilaterally altering established terms and condi tions of employees in such ways as promulgating rules concerning the use of restroom facilities eliminating break periods requiring employees to take a 1 hour lunch period or requiring them to pay for damaged merchandise WE WILL NOT discharge or otherwise discrimi nate against any employee because of union active ties or the exercise of other rights guaranteed by Section 7 of the Act WE WILL NOT in any like or related manner interfere with restrain or coerce employees in the exercise of rights guaranteed by Section 7 of the Act WE WILL on request bargain collectively with the Union with respect to our decisons to lay off Donald McSherry and Ralph Hopkins on October 15 1982 and to lay off McSherry Hopkins Joseph Stanbach and Kevin Drayton on October 29 1982 and about the effects of those layoff decisions on unit employees WE WILL offer McSherry Hopkins Stanbach and Drayton immediate and full reistatement to their former jobs or if those jobs no longer exist to substantially equivalent positions without preju dice to their seniority or any other rights and pnvi leges previously enjoyed and WE WILL make them whole with interest for any loss of pay or other employment benefits suffered because we laid them off without giving the Union notice and an oppor tunity to bargain about the layoff decisions and their effects WE WILL rescind the unilateral changes made in working conditions concerning the use of restroom facilities break periods lunch hour and damaged merchandise and WE WILL make whole with in terest all employees who suffered losses as a result of the above unilateral changes WE WILL offer Diane Rocek immediate and full reinstatement to her former job or if that job no longer exists to a substantially equivalent position without prejudice to her seniority or any other rights or privileges previously enjoyed and WE WILL make her whole with interest for any losses she may have suffered as the result of discnmina tion against her WE WILL remove from our files any reference to the discharge of Diane Rocek on May 12 1983 to the suspension of Richard Quigley on October 4 1982 and to the layoffs of McSherry Hopkins Stanbach and Drayton WE WILL notify them in writing that this has been done and that evidence of the unlawful actions will not be used against them in any way MCCOTTER MOTORS CO Michael P Berger Esq and Carmen P Cialino Esq for the General Counsel MCCOTTER MOTORS CO Norman I White Esq (McNees Wallace & Nurick) of Harrisburg Pennsylvania for the Respondent Paul J Dellasega Esq (Ira H Weinstock, PC) of Har nsburg Pennsylvania for the Charging Party DECISION STATEMENT OF THE CASE JAMES L ROSE Administrative Law Judge This matter was tried before me on August 31 1983 at Har nsburg Pennsylvania on the General Counsels com plaints' which allege that the Respondent engaged cer tarn activity violative of in Section 8(a)(1) of the Nation al Labor Relations Act suspended and discharged em ployees in violation of Section 8(a)(3) and unilaterally altered terms and conditions of employment in violation of Section 8(a)(5) The Respondent generally denied that it committed the unfair labor practices alleged and affirmatively con tends that the suspensions were the result of economic considerations and that the discharge was for cause On the record as a whole including my observation of the witnesses briefs and arguments of counsel I issue the following FINDINGS OF FACT AND CONCLUSIONS OF LAW I JURISDICTION The Respondent is a Florida corporation engaged in various endeavors including the purchase and distribu tion of automotive and related parts to various United States military facilities In connection with this aspect of its business the Respondent operates out of 17 facilities throughout the United States including the one involved in this matter at Mechanicsburg Pennsylvania In this business the Respondent annually receives di rectly from points outside the State of Pennsylvania goods products and materials valued in excess of $50 000 and annually derives gross revenues in excess of $500 000 The Respondent admits and I find that it is an employer engaged in interstate commerce within the meaning of Section 2(2) (6) and (7) of the Act II THE LABOR ORGANIZATION INVOLVED International Brotherhood of Teamsters Chauffeurs Warehousemen and Helpers of America Local Union No 776 (Union or the Charging Party) is admitted to be and I find is a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A Outline of the Case During the time material the Respondent had 39 em ployees at its Mechanicsburg facility most of whom The charge in Case 4-CA-13374 was filed on December 2 1482 and amended on December 6 1982 The complaint in that case was issued on January 31 1983 and amended on February 14 1983 The charge in Case 4-CA-13736 was filed on May 24 1983 and the complaint thereon issued July 7 1983 A further amendment to the complaint in Case 4- CA-13374 was issued on August 10 1983 767 were salespersons and others who worked in or out of the office There were 10 employees in the warehouse and driver bargaining unit 2 An organizational campa gn among these employees began in the summer of 1982 3 and on August 5 a petition was filed which resulted in a Board conducted election on September 29 The tally of ballots shows that of approximately 12 eligible voters 10 ballots were cast in favor of the Union and 1 against On October 7 the Union was certified as the bargaining rep resentative of employees in the above described unit Following the Union s certification the parties began negotiations for a collective bargaining agreement with the first meeting being held on November 16 From then on the parties have had a few collective bargaining ses sions but thus far have been unable to reach an agree ment Certain preelection activities allegedly engaged in by Maurice Shelton the Respondents warehouse foreman at the time including threats and interrogation are a] leged violative of Section 8(a)(1) It is also alleged that on August 24 the Respondent violated Section 8(a)(1) by republishing a rule and requiring the employees to sign it Following the election and admittedly without dis cussing the matter with the Union the Respondent pro mulgated a rule concerning the circumstances under which employees might use the restroom facilities On October 4 employee Richard Quigley was suspended I day for violating that rule Also in October the Respond ent eliminated two 10 minute breaks without consulting with the Union and in September or October it is al leged required employees to take a 1 hour lunchbreak On October 15 and 27 the Respondent laid off em ployees Ralph Hopkins Don McSherry Joseph Stan bach and Kevin Drayton allegedly because of their union activity and without negotiating or discussing the matter with the Union Finally it is alleged that on October 28 the Respond ent unilaterally promulgated a rule concerning how em ployees would be charged for damaged merchandise Sometime in February Diane Rocek met the Respond ent s general manager Robert Stratmeyer She asked him for a job and shortly thereafter was hired as a warehouse employee Following the discharge of Shelton in early May David J Shaeffer was made the warehouse fore man and the week after this occurred he determined to discharge Rocek As will be discussed in more detail below on the day that Shaeffer was named the ware house manager he had a meeting with all warehouse em ployees during which Rocek protested Shaeffer s an nouncement that they would have to pick up trash in the office In so protesting Rocek stated I am speaking for all of the employees The discharge of Rocek on May 2 The appropriate bargaining unit within the meaning of Sec 9(b) of the Act is All warehousemen and drivers employed by the Respondent at its Mechanicsburg Pennsylvania facility excluding all other employ ees office clericals lawyers guards and supervisors as defined in the Act' All dates are between August 1982 and May 1983 unless otherwise indicated 768 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12 is alleged violative of Section 8(a)(1) and 8 (a)(3) of the Act B Analysis and Concluding Findings 1 The acts of Maurice Shelton Shelton testified that before the election he had been instructed by higher management to fmd out about em ployees union sympathies and that he had undertaken to do this by interrogating employees and by threatening them that the Respondent would shut down the facility Shelton also testified concerning other matters of some materiality-whether for instance the employees were abusing smoke breaks None of these matters appeared in the investigatory of fidavit given by Shelton Though admitting that he gave a false affidavit to the Board agent he attempted to justi fy this by stating that he was still employed at the time None of Shelton s testimony was corroborated by any employee to whom the interrogation and threats were al legedly directed Thus the total record on these issues is the uncorroborated testimony of one who admittedly gave contrary false statements during the investigation of this very matter The testimony of a prejurer is inherent ly unreliable and absent corroboration should not be the basis for finding a violation of the Act Further if in fact Shelton did what he claims then presumptively corrobo ration from employees would have been available Indeed the allegation of threats by Shelton is in the aria tial complaint which issued despite his denials Accord ingly I will recommend dismissal of those paragraphs of the complaint alleging that the Respondent violated the Act through the activity of Shelton 2 Republication of company rules It is alleged that on August 24 the Respondent repub lashed a company rule and required employees to sign it Basically the rule states company policies requiring em ployees to notify a supervisor no later than 7 30 a in on the day they plan to be absent or tardy and 3 days before a doctor s appointment The rule further states that six or more unexcused absence days could result in dismissal Also the use of alcohol or drugs is prohibited On the company form is a space for an employee to acknowl edge receipt of the policies and that a breach of those policies could result in dismissal By memo of April 29 1982 to all employees signed by Billy Ward the assistant general manager the policy concerning doctor appointments was explained It was noted by Ward that doctor appointments should be brought to the attention of a supervisor 3 days in ad vance that six or more unexcused absence days would result in dismissal and if an employee planned to be off sick he or she must contact the supervisor no later than 7 30 am on the day of the absence Thus it is quite clear that these rules had been explained to employees before the advent of the organizational campaign Thus the question is whether the restatement of these rules in a different form and requiring acknowledgment by employees violated the Act I think not In agreement with the Respondent I conclude that a company may republish already existing rules which are not in themselves unlawfully coercive even when done dunng the course of an organizational campaign I do not believe that the Respondent violated Section 8(a)(1) by republication of the rules and asking employees to acknowlege receipt thereof Accordingly I shall recom mend that paragraph 9 of the complaint in Case 4-CA- 13374 be dismissed 3 Changes in company rules Shelton testified that sometime in the fall of 1982 Stratmeyer held a meeting with supervisors and told them that because there was graffiti on the walls of the restrooms he was initiating a policy requiring each em ployee to report to his supervisor before leaving work for the restroom This testimony of Shelton s is generally corroborated by Stratmeyer In effect the General Counsel argues that requiring employees to notify their supervisor before taking a rest room break was tantamount to their having to receive permission to take such a break and that such was a change in company policy Shelton testified that pursuant to instructions from Stratmeyer he told employees that before they left the work area to go to the bathroom they would have to locate me prior to leaving the work area Shelton went on to testify that two employees were disciplined for failing to notify their supervisor before leaving the work area It is alleged that the suspension of Richard Quigley on October 4 was violative of Section 8(a)(3) of the Act For reasons unexplained on the record the October 4 suspension of Donald McSherry for leaving his work area without notifying his supervi sor was not alleged to be violative of the Act (On Octo ber 6 Rosemary 0 Handly was similarly suspended She apparently was a nonbargaimng unit employee) In any event the General Counsel alleges that promul gation of the rule requiring employees to notify supervi sors before leaving their work area to use the restroom facilities was violative of Section 8(a)(3) and because such was a unilateral change in employees working con ditions the Respondent thereby also violated Section 8(a)(5) The Respondent defends promulgation of this change in policy on grounds that Stratmeyer had discovered profane graffiti on the restroom walls Because the Re spondent is responsible for the Government property it occupies to stop the proliferation of such graffiti Strat meyer put in the notification requirement The Respondent did not suggest why it was not re quired to notify and bargain with the Union concerning implementation of this policy Nor does the Respondent deny such constituted a change from the Company s past practice Whether an employee must notify his supervisor before taking a restroom break is certainly a term and condition of employment Because as the past practice was to allow unfettered use of the restroom by employ ees without notification to the supervisors it is clear the Respondent changed policy Although the General Counsel contends through the testimony of Shelton that there had always been graffiti MCCOTTER MOTORS CO on the walls there was no corroboration of this On the other hand Shelton did corroborate the Respondent s position that and at about the time the policy was changed there had been profane graffiti put on the rest room walls Thus the preponderance of the credible evi dence suggests that there was some justification for the Respondents change in policy However the fact that the Respondent may have a le gitimate business justification for altering terms and con ditions of employment does not allow it to bypass the employees certified bargaining representative and initiate such changes unilaterally Because there is no indication the Respondent made any attempt to notify the Union about this change in policy I conclude that by imple menting it the Respondent violated Section 8(a)(5) of the Act Mike 0 Connor Chevrolet 209 NLRB 701 (1974) Because promulgation of the restroom rule was unlaw ful necessarily the discipline of Quigley for breaching it was also unlawful I therefore conclude that the October 4 disciplinary suspension of Richard Quigley was viola tive of Section 8(a)(1) and (3) of the Act Because there was no allegation concerning the apparent suspension of McSherry and 0 Handly I make no finding concerning them September or early October the Respondent admitted ly eliminated two daily 10 minute breaks for its bargain ing unit employees The Respondent does not deny its unilateral act but rather defends on grounds of reason ableness Employees had been allowed to smoke at their stations but the fire marshall had determined that such was a violation of the applicable fire safety code Thus employees were allowed to take short smoke breaks at the door of the warehouse and the scheduled breaks (which the Respondent put at 15 minutes) were eliminat ed Despite the apparent justification for the Respondent s determination that the break policy for warehouse em ployees should be changed it is clear that this change was done without consulting with the employees certi feed bargaining representative and therefore as with the other unilateral changes was violative of Section 8(a)(5) I shall therefore recommend that the Respondent restore the break penods that existed before September 1982 and negotiate with the Union before making any changes in such a working condition In September the Respondent changed its past practice concerning lunch breaks and required its employees in the bargaining unit to take a 1 hour lunch While admitting that the change was unilateral the Respondent argues that employees were abusing its pre vious policy Employees had been allowed to return after taking a 30 minute lunch however according to Respondent they were punching in but not doing any productive work in the absence of their supervisors who customarily took 1 hour The Respondents evidence re garding the employees alleged abuse of the lunchbreak policy was at best self serving generalized and sketchy But even accepting the Respondents story clearly it al tered a condition of employment without consulting the employees bargaining representative Therefore the Re spondent violated Section 8(a)(5) of the Act 769 In addition to recommending that the Respondent re store its previous policy of allowing employees to take a 30 minute lunch if they wish I shall recommend the Re spondent make whole any employees who lost wages as a result of the Respondents change in policy The Re spondent offered evidence that four employees had not suffered any loss of earnings as a result of the change two of whom were truck dnvers who customarily worked outside the warehouse Although the two others may not have suffered a loss of earnings such proves nothing regarding the other 8 or 10 warehouse employ ees Because evidence about the others is in the Respond ent s possession and was not offered I must necessarily draw the inference that such shows they lost earnings In any event the amount of any loss of earnings is appro priate for a compliance proceeding I shall recommend that the Respondent make whole all employees who suf fered an economic loss as a result of the changes in lunch break policy I further conclude that the change in rules concerning the use of the restroom the 10 or 15 minute breaks the lunch hour and damaged goods were violative of Section 8(a)(3) in that these changes were meant to and did dis criminate against employees because of their union activ ity Although the Respondent presented some evidence in dicating that these policies applied equally to nonbar gaining unit employees such is unpersuasive Indeed the specific problems the Respondent claims it sought to cor rect related to the warehouse There is no real showing that the changes were directed to other than bargaining unit employees Given the timing of these changes with the employees union activity and the Respondent s demonstrated animus in bypassing the Union clearly the changes in working conditions were responsive to the employees union activity and were therefore violative of Section 8(a)(3) The Respondents purported reasons for making these changes do not prove they would have been made even absent employees union activity I therefore conclude that the General Counsels prima facie showing of discrimination has not been rebutted Finally on October 28 the Respondent unilaterally promulgated a rule concerning damage to merchandise stating that any damage to merchandise caused by an employee would be paid for by that employee Again though the reason for the rule may very well reflect a reasonable management decision it is admitted that the Respondent promulgated this rule unilaterally Any rule that potentially affects an employee s earnings as does the damage to merchandise policy is clearly a term and condition of employment that is a mandatory subject of bargaining Therefore I conclude that by pro mulgating the rule concerning damage to merchandise on October 28 the Respondent did violate Section 8(a)(5) and on the total facts here Section 8(a)(3) There is however no evidence of any pecuniary loss to employ ees as a result of this rule After the Respondent notified employees of the new policy on damaged goods management officials contact ed their attorney who advised that the notification letter ought to be rescinded It was and the Respondent thus 770 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD claims that it committed no unfair labor practice regard ing this matter Notwithstanding that the policy was in effect only a short time I conclude that by implementing it the Company did violate the Act However because the policy has been rescinded the affirmative portion of the remedy requiring disestablishment of the policy need not be entered 4 The layoffs On October 15 according to Stratmeyer Donald McSherry and Ralph Hopkins were laid off for 2 days He testified It was mostly a disciplinary type lay off Then on October 29 the Respondent gave notification of temporary layoff to Hopkins McSherry Joseph Stan bach and Kevin Drayton The Respondent did this ad mittedly without prior notification to or consultation with the Union although T R Ruta the Respondent s vice president indicated that before the November 1 bar gaining session he did discuss this matter with represent atives of the Union No doubt an employer may generally alter the number of employees in its work force however it cannot do so to discriminate against employees because of their union or other protected activity On October 15 Stratmeyer laid off McSherry and Hopkins he stated mostly for disciplinary reasons What they were suppose to have done was not explained Indeed Stratmeyer s testimony concerning them is gen eral and vague There is no evidence that other employ ees were ever suspended for such vague reasons Given the timing of the suspensions the Respondents animus and the lack of rational justification I conclude that poor work habits was a pretext to disguise the Re spondent s true motive And I infer that the true motive behind these suspensions was the employees union activ ity Shattuck Denn Mining Corp v NLRB 362 F 2d 466 (9th Cir 1966) McSherry and Hopkins were recalled then along with Stanbach and Drayton who were laid off October 29 for economic reasons The Respondent laid off almost one half its warehouse employees following their having selected the Union as their bargaining representative and at a time when the Respondent was undermining the Union by engaging in unilateral changes of working con ditions In addition to the antiunion animus implicit in such activity I note the letter from Ruta to the Honora ble Paula Hawkins (Rebublican Senator from Florida) wherein he stated inter alia I For the past ten months we have been plagued with a Teamster organizing movement at our Con tractor Operated Parts Depot in Mechanicsburg Pennsylvania This organizing attempt has resulted in great waste and expense to our company During this time we have been harrassed and have had a number of groundless unfair labor charges filed by the union with the N L R B Senator Hawkins I hope you can appreciate the frustration that we as a Small Business Concern feel as we are seemingly without recourse under the present labor laws and ongoing pattern of bias decisions and precedents set by N L R B rulings The Respondent offered into evidence testimony sug gesting that the layoff was occasioned by a reduction in the number of orders received and hence was economi cally justified In support of this the Respondent offered a summary of orders received and shipped in 1982 which is reproduced as Appendix B It appears that by subtracting the total number of orders shipped to date from the total number of orders received to date gives the backlog of orders to be proc essed Thus in February and March the backlog was less then 5000 In April backlog went to more than 6000 to about 8000 in May to more than 7000 in June to more than 8000 in July to more than 10 000 in August to about 11 000 in September and to nearly 12 000 in Octo ber In November the backlog increased to 14 000 and was more than 14 000 in December as well Further a review of this document shows that begin ning in June the number of orders received was down somewhat and remained generally steady at roughly the 9000 level until October when the number of orders dropped to 7646 But in November the number of orders received was again over 9000 The Respondent did not explain why it was not neces sary to lay off employees during the the time of reduced orders before the union activity nor did the Respondent explain the fact that the backlog increased following the layoff of four warehouse employees However one might reasonably conclude that fewer employees will process fewer orders which will result in an increased backlog Even Stratmeyer testified that the layoff was the first ever at the facility and that no supervision or nonunion employees were laid off If in fact a layoff of the magm tude ordered by the Respondent was necessitated by eco nomic considerations then it would seem that other than bargaining unit employees would have been affected None of this is by way of suggesting that a business decision by the Respondent can or should be second guessed This company is free to operate its business un productively and ineffectively However when a comps ny makes a decision that does not appear rational under all the circumstances that fact can be the basis of an in ference that the true motive was something other than that offered in defense of its action Given the unexplained inconsistencies between the document submitted by the Respondent and the general ized testimony of its witnesses concerning the necessarity for laying off four warehouse employees I conclude that the Respondent did not carry its burden of establishing an economic justification Indeed I conclude from my review of the documentary and testimonial evidence that the reason offered was a pretext I conclude that the alleged economic justification was meant to disguise the Respondents true motive I conclude the Respondent laid off these four employees to retaliate against them be cause they had engaged in union activity Accordingly I conclude that the Respondent laid off employees on Oc tober 29 in violation of Section 8(a)(3) of the Act and I shall recommend an appropriate remedy MCCOTTER MOTORS CO 771 5 The discharge of Diane Rocek On May 5 David Shaeffer became the warehouse man alter on the departure of Maurice Shelton About this time Shaeffer was informed by employee Ralph Hopkins that Rocek was involved with the Union and Shaeffer relayed this information to Stratmeyer (In fact Rocek was elected steward by the other employees on May 7 Though this was not formally communicated to the Re spondent knowledge was not denied ) On May 9 Shaeffer had his first meeting with the warehouse employees the purpose of which was to in troduce himself and to go over some policy changes that I had and wanted to go over with them During this meeting Shaeffer told them they would be responsi ble for picking up trash not only in the warehouse but also in the buyer s area the office clerical area and the managment offices Dianne Rocek began her protest of this by saying I am speaking for everybody She told Shaeffer that she did not feel that the warehouse employees should to have to clean up the other areas particularly as she had observed the employees in the clerical area drinking cokes smoking cigarettes and sitting around with their feet on their desks According to Shaeffer he told her the reason the warehouse employees had to pick up trash was that the office people are dressed better They come in dressed in nice (clothes) to work in an office facility whereas we come in to work in the warehouse After Rocek fin ished making her statement concerning her opinion about picking up trash Shaeffer told her I think you have a bad attitude Shaeffer testified that he decided to terminate Rocek on May 12 because of her poor attitude and also because of work discrepancies Shaeffer testified that her work was unsatisfactory although he did admit that he had been her supervisor for only 6 days and did not check her personnel file or attempt to determine how her work compared to that of other employees Indeed Shaeffer testified that one discrepancy con cerned an order in the International Harvester area where she and her coemployee had made a notation that a particular piece was not there when in fact it was Shaeffer admitted that the coemployee was just as re sponsible for this as Rocek but was not discharged Other than Shaeffer s testimony concerning Rocek s job performance discrepancies the Respondent offered no testimony from any other supervisor or any documen tary evidence suggesting that Rocek was not at all times a competent employee Under the Act an employer may discharge an em ployee for any reason or no reason at all other than to discriminate against that employee because she is en gaged in union or other protected activity Thus wheth er an employer violates the Act in discharging an em ployee depends on evaluation of the employers motive Again motive must be determined from the evaluation of all the facts and circumstances including the purport ed reasons advanced to justify the discharge Here there is evidence of union animus on the part of the Respondent shown by its various unfair labor prac tices and Ruta s deprecatory and factually unsupported letter to Senator Hawkins And there was knowledge of Rocek s union activity The principal factor I rely on in concluding the Re spondent discharged Rocek for reasons proscribed by the Act is Shaeffer s conduct He was a new supervisor who claims to have discharged Rocek because of work dis crepancies but he did not investigate whether her work was generally acceptable To believe Schaeffer is to be lieve he is uncommonly aggressive Further the dis crepancies to which he testified to were either trivial or not normally the type of acts for which a competent em ployee is discharged Finally Shaeffer admitted that one reason for his dis charge of Rocek was her poor attitude which she demonstrated to him in her statement at the meeting he had with employees Rocek spoke out against a particu lar policy that Shaeffer was explaining to employees When she did so she stated to him that she was speaking on behalf of all the employees With the smallness of the bargaining unit here and the fact that the Respondent knew of Rocek s union activity it is appropriate to infer that they also knew she had been elected steward But even if not undeniably Shaeffer knew that Rocek was speaking on behalf of all employees She was clearly en gaged in concerted activity protected by the Act and it was this I conclude that was the motivating cause rof her discharge The Respondent brought forth no persuasive evidence to support the conclusion that absent her having engaged in the concerted activity described she would have been discharged at all Thus I conclude that the Respondent has failed to meet its burden of establishing that Rocek would have been discharged even absent her union or protected activity as is required by Wright Line 251 NLRB 1083 (1980) Accordingly I conclude that by discharging Diane Rocek on May 12 1982 the Respondent violated Section 8(a)(1) and (3) of the Act I shall recommend an appro priate remedy IV THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The unfair labor practices found above occurring in connection with the Respondents business described above have a close intimate and substantial relationship to trade traffic and commerce among several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof within the meaning of Section 2(6) and (7) of the Act V THE REMEDY Having found that the Respondent has engaged in cer tarn unfair labor practices I recommend that Respondent cease and desist therefrom and take certain affirmative action including offering Diane Rocek reinstatement to her former job or if that job no longer exists to a sub stantially equivalent position of employment and make her whole for any losses she may have suffered as a result of the discrimination against her in accordance with the formula set forth in F W Woolworth Co 90 NLRB 289 (1950) with interest as provided for in ac 772 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cordance with Florida Steel Corp 231 NLRB 651 (1977) 4 Any references to Rocek s discharge shall be physically removed from her personnel record I also recommend that those employees who were laid off or suspended on October 4 15 and/or 29 be reinstat ed to their former jobs if they have not already have been reinstated and that they be made whole for any losses they may have suffered as a result of the discrimi nation against them in accordance with the above formu la lunchbreak policy be made whole for any losses they may have suffered again with interest Finally I shall recommend that the Respondent be or dered to bargain upon request with the Union as the em ployees duly certified bargaining representative Fur ther the certification year shall begin again when the Respondent begins to bargain in good faith Mar Jac Poultry Inc 136 NLRB 785 (1962) [Recommended Order omitted from publication ] I shall also recommend that those employees who suf fered losses as a result of the Respondents change in the APPENDIX B Month Orders Received To Date Orders Shipped To Date CXL To Date Jan 8 921 7 883 * 1 720 Feb 1 231 20 152 7 835 15 718 * 1 720 3440 Mar 10602 30 754 10 547 26 265 1 696 5 136 Apr 11 804 42 558 9 966 36 231 1 954 7 090 May 10 783 53 341 9 227 45 458 2 171 9 261 June 9 235 62 576 9 751 55 209 1 588 10 849 July 9 273 71 849 8 015 63 224 1 852 12 701 Aug 9 594 81443 8 123 71 347 1 478 14 179 Sept 9 286 90 729 8 413 79 760 2 241 16 420 Oct 7 643 98 372 6 906 86 666 1 114 17 534 Nov 9 632 108004 7 416 94 082 1 367 18 901 Dec 8 731 116 735 8 111 102 193 1 760 20 661 Totals 116 735 102 193 20 661 * Estimate 4 See generally Isis Plumbing & Co 138 NLRB 716 (1962)