Kidde, Inc.

840 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Business Products-Division of Kidde, Inc. and Team- sters Union Local 145, a/w International Broth- erhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, AFL-00.1 Case 39-CA-3342 June 9, 1989 DECISION AND ORDER spondent, Business Products-Division of Kidde, Inc., Stratford, Connecticut, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. Add the following as paragraph 2(e). "(e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply." BY MEMBERS JOHANSEN, HIGGINS, AND DEVANEY On September 12, 1988, Administrative Law Judge David L. Evans issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-excep- tions, a brief in support of cross-exceptions, and a reply 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 briefs and has decided to affirm the judge's rulings, findings,2 and conclusions3 and to adopt the recommended Order4 as modified. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- ' 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 and the Respondent have both excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administrative 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 reversing the findings s In adopting the judge's Wright Line analysis that the Respondent's discharge of employee Marsala violated Sec 8(aX3) and (1) of the Act, we rely in particular on those cases holding that employees misconduct discovered dunng an investigation undertaken because of an employee's protected activity does not render a discharge lawful See, e g, Kut Rate Kid & Shop Kwik, 246 NLRB 106, 121-122 (1979) (if investigation com- menced to find lawful reasons for discharges motivated by an actual un- lawful reason, evidence of misconduct would not render the discharges lawful), Campbell "66" Express, 238 NLRB 953, 963 (1978), enf denied 609 F 2d 312 (7th Cir 1979) (misconduct uncovered dunng investigation undertaken because of protected activity and aimed at undermining the employee's Sec 7 rights does not convert the discharge into a legitimate one) See also Chrysler Corp, 242 NLRB 577 (1979), American Motors Corp, 214 NLRB 455 (1974), enfd 525 F 2d 695 (7th Cir 1975) 4 The Respondent filed a motion to reopen the record and a supporting brief The Respondent requests that the Board receive new evidence re- garding the unsuitability of Marsala for reemployment based on events occurring after the issuance of the judge's decision The new evidence concerns Marsala's alleged untruthfulness dunng a Department of Trans- portation mandated physical exam conducted pursuant to an offer of rein- statement by the Respondent The motion is denied Our denial, however, does not preclude the Respondent, in the compliance stage of this pro- ceeding, from raising the alleged unsuitability of employee Marsala for reinstatement Thomas W. Mieklejohn, Esq., for the General Counsel. Theodore M. Eisenberg, Esq., of Roseland, New Jersey, for the Respondent. DECISION STATEMENT OF THE CASE DAVID L. EVANS, Administrative Law Judge. This matter was tried before me on December 14-16, 1987,' upon charges filed under the National Labor Relations Act (the Act), by Teamsters Union Local No. 145, affili- ated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union) and on a complaint issued by the General Coun- sel against Business Products-Division of Kidde, Inc. (the Respondent). The charge was filed on January 26 and the complaint issued on March 31. The complaint alleges that Respondent violated Section 8(a)(3) and (1) of the Act by discharging employee Clarence Marsala on Janu- ary 21. Respondent filed an answer admitting jurisdiction but denying the commission of any unfair labor practices. Respondent and General Counsel have filed briefs which have been carefully considered. On the record testimony and the exhibits, and the arguments made at the hearing and in the briefs, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent is a Delaware corporation with an office and place of business in Stratford, Connecticut, where it is engaged in the retail and nonretail sale and distribution of office supplies and furniture. During the year preced- ing the issuance of the complaint, Respondent, in the course and conduct of its business operations, received a gross income in excess of $500,000. During the same period Respondent purchased and received at its Strat- ford facility products, goods, and materials valued in excess of $50,000 directly from suppliers located at points outside Connecticut. Therefore, Respondent is now, and has been at all times material, an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION Respondent disclaims knowledge of whether the Union is a labor organization within Section 2(5) of the Act. Paul Keegan, president and business agent of the ' All dates referred to are between November 1, 1986, and March 31, 1987, unless otherwise indicated 294 NLRB No. 72 KIDDE, INC Union, credibly testified that the Union organizes em- ployees and negotiates contracts in order to establish wages and benefits for employees . On this testimony I find that the Union is now and has been at all times ma- terial, a labor organization within the meaning Section of 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts 1. Individuals involved and contentions'of the parties Respondent is a subsidiary of New Jersey Office Supply which is located in Whippany , New Jersey 2 Re- spondent's Stratford operation is a warehouse from which Respondent wholesales furniture and stationery. At the time of the events in question Respondent em- ployed an undisclosed number of furniture delivery driv- ers and six stationery-delivery drivers, including Marsala. The immediate supervisor of the drivers3 was Wayne Landry, warehouse manager . Landry reported to Rich- ard O'Hal, operations manager; O'Hal reported to Arthur Bouthillier, vice president and general manager of Respondent's New England operations . Robert Caponi is the comptroller of Respondent's Connecticut operations; Caponi also reported directly to Bouthillier. Marsala was hired by Respondent in 1981 and dis- charged on January 21 at which time he was the senior driver. He drove a van which was owned by Respond- ent; the five other drivers drove 16-foot trucks which were leased . Marsala, for the last several years of his em- ployment, made deliveries in the Bridgeport, Connecticut area. Marsala was active on behalf of the Union in Novem- ber and December , and General Counsel contends that Marsala was discharged because of that activity Re- spondent does not deny knowledge of Marsala 's union activity, but it contends that Marsala was discharged for going home for a 4-hour period, rather than reporting back to the warehouse when he had finished the deliv- eries on his route on January 16 and 19 ; for falsifying times of deliveries on his driver delivery sheets on four different dates, and for giving a ride to an unauthorized person (Marsala's wife) in the company van. Respondent further argues that there is no evidence of union animus in the record. General Counsel responds that Marsala was given permission to go home any time he finished his routes; that he was given permission to falsify the en- tries on the driver delivery sheets; that Marsala was dis- criminatorily punished as other employees were not dis- charged for engaging in the same , or similar, conduct; and that Marsala was discriminatorily punished as he was not given the benefit of Respondent's progressive disci- plinary program . General Counsel further contends that all punishment of Marsala should be held to be invalid 2 At the time of the events in question , New Jersey Office Supply was owned by Walter. Kidde Corporation, 6 months before the hearing New Jersey Office Supply was acquired by Hanson Industries, Inc 3 For the remainder of this decision the term "driver" applies only to the stationery-delivery drivers, as opposed to the furniture-delivery driv- ers 841 because investigation of his conduct was not undertaken until he announced that he was going to help the Union organize Respondent's employees. Finally, General Counsel contends that evidence of antiunion animus exists in campaign literature distributed by Respondent and in a remark by Bouthillier to Marsala. 2. Marsala's union activity and discharge Marsala testified that on November 14 he met union representative Paul Keegan at a bowling alley. Marsala told Keegan that he thought he could organize the em- ployees of Respondent, and Keegan gave Marsala an au- thorization card to sign and about 25 more to distribute. In early December Marsala received an annual review. Landry conducted the review at which Marsala was given favorable marks except for "housekeeping " assign- ments. Marsala told Landry that he should be making as much as Respondent's union-represented drivers in New Jersey Landry replied that he could not grant such a re- quest . Marsala asked if he could talk to Bouthillier. Landry said that he had no objection , and Marsala then went to Bouthillier 's office Marsala testified that he argued unsuccessfully for a wage increase. Bouthillier told him that New Jersey was "a whole different ball game." Further according to Marsala: I says, "Art , you know I'm sure you are aware that there has been same union talk going on in the place." He said , "well, Clarence, are you organizing a union?" I said, "I am getting accused of it," but I said, "no I'm not organizing a union." I said, "but, I will tell you what, if I ever decide, I promise you that the first guy that I will tell will be you." I said, "while we are discussing this," I said, "Art, if I decide to organize how about letting me organize it within." He said, "what are you talking about `within' " I said, "well, instead of having a Union business agent go out and pass out leaflets, let me get a general feeling inside, let me go around asking questions and post notes on the bulletin board." He said, "Clarence, let's get one thing now; if you try to organize a union I will fight you tooth and nail; get that in your head . [Quotation marks supplied.] Marsala testified that Bouthillier went on to give reasons why he opposed the Union. Marsala further testified that within a day or two after this conversation with Bouthillier, he again went to Bouthillier's office. Marsala testified that he told Bouthil- lier that he had heard rumors that employees were being questioned about whether he, Marsala , had been handing out union cards and that he had further heard other em- ployees say that he, Marsala, should "watch his butt; he is going to get fired." Marsala furthered testified that he told Bouthillier that he was worried because he did not want to get fired and he added, "I said , I don't know if you are aware of the meeting that we had 3 years ago with Bob Caponi, where he told us we can go home when we are done delivering." According to Marsala, Bouthillier replied, "I agree with that 100%; you are the kind of employee we want making our deliveries; when you are done, you are allowed to go home." Further, ac- 842 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cording to Marsala, Bouthillier added that since Landry and O'Hal worked for him, Bouthillier,, only Bouthillier could fire Marsala. On direct examination Bouthillier described four con- versations with Marsala involving the topics of the Union and/or the possibility of a wage increase. Bouthil- lier testified that at the first conversation Marsala ex- pressed upset at being paid 25 cents per hour less than truckdrivers because he, Marsala, was a van driver. Bouthillier testified that he replied by asking Marsala why he didn't drive a truck if he wanted the differential, and Marsala replied that he liked his route and he liked driving the van and wanted to continue what he was doing Bouthillier replied that it was corporate policy to maintain the differential. Bouthillier testified that Marsala argued that he, Marsala, worked very hard, he liked his route; he was the senior member of the driving staff; he gave extra effort to the company; he wanted some indi- vidual recognition; and he trained other drivers. Bouthil- lier testified that he told Marsala that he would check with company headquarters to see if more money could be granted on the basis of Marsala's training other driv- ers, but he did not believe there would be a change in company policy that granted truckdrivers a premium which van drivers did not receive. Bouthillier testified that a week later Marsala stopped by his office again. Marsala asked if there had been any word on whether he could have the pay differential Bouthillier told Marsala that he hadn't gotten an answer on the question of whether training of other drivers would constitute a basis for granting the differential. Bouthillier testified that Marsala replied by asking for permission to organize a union. Bouthillier testified, "I told him he had a right to do anything he wanted to do as long as he didn't do it on company time." To that Marsala replied that he was worried about being fired "for his activities," and' Bouthillier replied, " as long as you don't violate company policy and you do a good job, you will not get fired." Bouthillier testified that at his third meeting with Marsala in December he told Marsala that he had spoken to the corporate office and advised them of his statement about organizing a union. Bouthillier testified that he told Marsala, "we may have legal problems at this time if we make any changes, sur- veys, or alter any programs or what have you. So, ev- erything really has to go on hold if there was an organiz- ing taking place." Further, according to Bouthillier, Marsala opened a discussion about becoming an owner- operator and asked if he could have a guarantee if he did so. Bouthillier replied that there could be no guarantee, and Marsala closed the conversation by stating that he "wanted to go forth with a union " Bouthillier testified that the fourth encounter with Marsala was a few days later in a hallway. Marsala re- ported receiving some abuse from warehouse employees. Bouthillier testified that those employees had a right to their opinion and "if they violate company policy or break the law, I deal with it." During December, Union representative Paul Keegan began passing out handbills at Respondent's gate at least once a week. On January 5, Respondent posted a notice signed by Caponi. The notice solely concerned the topic of union authorization cards which employees were being asked to sign. The notice urged employees not to sign them. Keegan testified that after "a" notice, apparently the Jan- uary 5 notice signed by Caponi,4 had gone on "the board," Landry stopped at the gate and spoke to Keegan According to Keegan, Landry said: That he knew who the inside person was that was passing out the cards. He happened to mention that he thought it was Clarence. I said, "what makes you think it was Clarence?" He said, "well I know it was Clarence that is doing it." This testimony by Keegan is not denied. General Counsel introduced two notices to the em- ployees from Caponi; one issued before and one after Marsala's discharge on January 21. The first was Ca- poni's notice of January 5 mentioned above. A notice by Caponi dated February 4 states that some employees had complained about being harassed by union agents. Capone states that "the Union agents are paid profession- al organizers, and it is part of their job to try and create problems between Business Products and its employees." The notice further states: We are against the Union. We do not think the Union is a good thing for Business Products or for our employees. But, it is not for Business Products to make this decision, it is for you, our employees to decide . . This has been a difficult period for all of us. We are proud of what we have built here together as a Company-in terms of our wages, our benefits, and our policies. It is something worth fighting for against outsiders who would 'tear it down. No other management campaign propaganda was offered by General Counsel; according to this record, no petition for election was filed. It is undisputed that on January 9, 12, 16 and 19 Mar- sala made his last deliveries between 11:30 a.m. and 1:30 p.m. On each of the days he drove home rather than back to the warehouse. On the fourth occasion he also used the van to give his wife a ride to a local shopping center and then returned home; then he drove back to the shopping center, picked up his wife, drove her back to his home, and then proceeded to the warehouse. On each of these occasions , it is further undisputed, Marsala falsified his delivery sheets to reflect later-than-actual times of departing from his appointed delivery stops. Re- spondent contends that these actions of Marsala consti- tuted misconduct and that it was for this conduct, alone, that Marsala was discharged. Marsala was discharged by O'Hal at the beginning of the day on Wednesday, January 21. Landry witnessed the interview which was conducted in Respondent's con- ference room although he testified that he was not con- sulted about the discharge beforehand; he did not know " There is no testimony that any other notice had been posted about this time KIDDE, INC it was going to occur, and he did not know who made the decision to discharge Marsala. Marsala's testimony about the discharge interview is. Marsala was escorted to the interview by Landry. When they reached the conference room, O'Hal was sitting at a table and had one of Marsala's delivery sheets before him. O'Hal asked Marsala where he had been at 11:30 a.m. and 12:30 p.m. on the previous Friday Marsala re- plied that he was probably at home "just like you guys tell me, when I get done working, I go home." O'Hal replied that he, O'Hal, had never told Marsala to go home. Marsala replied that Caponi had had a meeting with drivers, at which Landry was present, and had told the drivers that when they finished their routes they could go home. Marsala asked Landry for confirmation and Landry would not respond, other than to shrug his shoulders. O'Hal then asked if Marsala had a passenger in his van at the shopping center Marsala replied "Dick, even if I did . . Willie [Rios] took his girlfriend on the truck with him for a whole day, a solid eight hours. Wayne [Landry] found out about it and did nothing about it." Landry then volunteered that he had given Willie Rios a verbal warning for the conduct which Marsala described Marsala asked why, if Rios had gotten a verbal warning notice, he, Marsala, did not get one. O'Hal replied: I don't give out warnings for you; I'm only doing what I'm told, Clarence; I want you to understand that. I'm told exactly what to do, and that is to ter- minate you. I'm doing, what I have to do, and I'm sure you are going to do what you have to do. Marsala responded that he was being fired for his union activities and that he would be back. O'Hal's testimony is as follows: He showed Marsala two driver sheets and asked him if Marsala had filled them out; Marsala replied that he had. O'Hal asked if the numbers were correct; Marsala replied that "sometimes we jump around." O'Hal asked again if they were cor- rect, and Marsala replied "well, they're fudged, but ev- eryone knows I do it. We were told do it." O'Hal asked Marsala who had told him to "fudge" the entries, and Marsala did not respond. O'Hal asked Marsala what he did when he completed his routes; Marsala replied that he went home, and everyone knew it, and everyone else did it. O'Hal asked Marsala if he had had an unauthor- ized person in the van, and Marsala denied it. O'Hal asked a second time if there was someone else in the van, and Marsala denied it. O'Hal asked a third time, and spe- cifically asked Marsala if he had picked up anyone from, or delivered anyone to, a shopping center. Marsala .denied it. At that point O'Hal told Marsala that he was terminated for misuse of a company vehicle, having an unauthorized person in the •van, and falsification of com- pany records. Landry testified essentially', consistent with O'Hal about the discharge interview. -Landry denied that Mar- sala stated during the discharge interview that he (Landry) was aware that delivery sheets had been falsi- fied or that Landry was aware of the fact that Marsala went home for lunch. Landry did not deny that Marsala 843 said that Caponi had told the drivers that they could go home after completing their deliveries; however, O'Hal did. 3. The investigation preceding discharge Respondent's management found out about the undis- puted January 9, 12, 16, and 19 conduct of Marsala by the employment of a detective agency, Landmark Secu- rity and Investigations, Inc. [LSI]. Sean Plumb, LSI's manager of special services, testified that LSI is usually hired by businesses and attorneys. LSI investigates acci- dents, personal injury claims, domestic relations, and criminal matters. Plumb acknowledged that, in the indus- trial field, LSI is usually employed for the purpose of de- termining whether employees are engaged in some sort of wrongdoing. Caponi, O'Hal, and Plumb testified that Respondent first contacted LSI in December. Caponi testified that there were several reasons for contacting a private detec- tive at the time. Caponi testified "we were looking at adding` a van to our retail operation in Stanford. We were looking at adding an additional truck in Stanford. Our lease with Edart was expiring and we were paying overtime which I wanted to review " When asked, on direct examination, what these objectives had to do with the hiring of a private detective, Caponi replied "we de- cided to bring in LSI to review all of our truck routes and let us knew if our drivers were driving safely, paying attention to traffic laws and regulations, if in fact they were performing and servicing our customers regu- larly." The reference to the Stanford operation had to do with a November 19, 1986 request from O'Hal to Bouth- illier for the lease of a van in lower Fairfield County, Connecticut. The reference to the Edart lease had to do with an expiring lease on the trucks used by Respondent, but not the van which Marsala drove. When asked how the company-owned van related to the hiring of LSI, Capone testified that Respondent was considering using 18 or 20 foot trucks, rather than the then-used 16-foot trucks and eliminating the use of the van altogether. Capone concluded, "with LSI reviewing these routes at the same time, they would see that they were in fact servicing all of our customers within the eight hours that we were paying to help us to determine that or if we would need larger trucks." O'Hal testified consistently with Caponi, but he added that an additional reason for hiring a private detective agency was to see if additional stops could be added to the routes On cross-examination Caponi testified that he contact- ed LSI on the recommendation of one "Paula," who was a friend of his wife and whose last name he did not know. Paula, according to Caponi, told him that she knew of LSI because her boyfriend had told her that LSI could provide an investigative service. Caponi ac- knowledged that he had no idea the quality of the serv- ices provided by LSI when he contacted them. According to the testimony of Plumb and Caponi, Caponi and O'Hal met with Plumb and one of his associ- ates in December, some time before Christmas. They tes- tified that only the nature of the services which could be 844 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD provided and prices were discussed at the December meeting. If'. Caponi, O'Hal, and Plumb met during the first week of January 1987. Plumb testified: At this point Caponi and Mr. O'Hal agreed to take on our company to conduct the vehicle surveillance of the Business Products' vehicles. The discussion got into, some more specifics of what they were looking for, in terms of drivers, the routes, were the routes being completed in a timely fashion, lunch time irregularities as far as speeding, reckless driv- ing, and just an overall opinion of how the routes were being operated. Plumb also testified that Caponi and O'Hal had stated that the drivers had complained that they could not even get a lunch period because they were so overloaded with work. At the January meeting, they discussed which routes would be followed first. Plumb testified that the men dis- cussed Respondent's various routes, and he suggested that the Bridgeport route (Marsala's) be followed first because his investigators were more familiar with that area. Caponi also testified that the Bridgeport route was chosen because Plumb stated that his investigators were more familiar with that area. In a written position state- ment submitted to the Regional Office, Respondent con- tended that the van was followed first because Respond- ent was considering replacing the van; no other reason was given O'Hal testified that the reasons for the selec- tion of the Bridgeport route were both Plumb's state- ment that his investigators were more familiar with the Bridgeport route and because Respondent'was consider- ing replacing the van The Bridgeport van, driven by alleged discriminatee Marsala, was followed for 4 days by LSI investigators before Marsala was discharged, January 9, 12, 16, and 19 The evenings before each surveillance, O'Hal met Plumb (in a restaurant parking lot) to give LSI the van's route sheets for the following days. At the end of each surveillance the investigators reported to Plumb. Also, each day, Plumb relayed those reports to Caponi or O'Hal, At some point after the January 21 discharge of Marsala, Plumb submitted a written investigative report to Respondent. The introductory paragraph of the report states as follows: This report concerns an investigation into the con- duct of delivery drivers for the client company. Of specific concern was safety and legality of oper- ation, timeliness of delivery and unusual or unau- thorized conduct while in the company vehicle. Ve- hicles were chosen at random and a prospective list drawn up so as to facilitate scheduling of investiga- tors. The following narrative is based on this written report of the investigation and the daily delivery sheets com- pleted by Marsala. On Friday, January 9, Marsala had 25 deliveries to make . LSI's investigator, with a delivery schedule in his possession, stationed himself so as to see Marsala leaving the warehouse. The investigator lost Marsala immediate- ly in traffic and did not locate him again until Marsala's sixths scheduled stop, Bridgeport Hydraulic. Marsala left Bridgeport Hydraulic at 8:53 a.m.; however the delivery sheet which he submitted at the end of the day recites that he left Bridgeport Hydraulic at 9:25 a.m. The inves- tigator followed Marsala for a while, then lost him, then observed him at People's Bank on White Plains Road in Trumbull, Connecticut. This was Marsala's 23rd stop of the day. The investigator observed Marsala leaving the bank at 12 noon; however, Marsala recorded the time as 2 p.m. The investigator followed Marsala to his last two stops but did not record the time. The investigator then lost Marsala, and his report states, "the investigation was suspended at 1:00 p.m." Marsala reported on his delivery sheet that he made his 24th stop at 2.25 p.m., and last stop of the day at 2:40 p.m., and returned to the ware- house at 3 p.m. On Monday, January 12, the investigator was able to follow Marsala to his first two stops, Alloy Engineering and "X-Services." The report does not mention the ar- rival or departure time at Alloy Engineering; it does not report the arrival time at X-Services; but it does state that Marsala "was not seen exiting there." The van was lost and the investigator went to the 33rd, and last, stop on the delivery sheet and then drove the route back- wards. The report states that the van was observed arriv- ing at Lipton, Marsala's 19th stop, at 9 a.m., and the van "departed shortly thereafter." Marsala recorded the time of his leaving Lipton as' 11:50 a.m. The report recites: "The van then proceeded to Merit Insurance, Golf Digest, General Electric, and Oakview in Trumbull, ar- riving there at 10:40 a.m." The report does not list an ar- rival or departure time for Merit Insurance, Golf Digest, or General Electric; it does recite that the van arrived at Oakview at 10:40 a.m., but was not seen exiting Oak- view; the investigator searched for it in the area, but could not find it, so the investigator went to a later stop, Vitramon. Marsala listed his times of departures at Merit Insurance as 12 noon; Golf Digest at 12:50 p.m.; General Electric at 1 p.m., and at Oakview at 2 p.m. The report cites that the van was "located at 11:36 a.m. at Vitra- mon, then Technology, and was last seen near Town Hall on Maine Street, Trumbull." The departure times from Vitramon and Technology are not stated on the in- vestigator's report. Marsala listed his departure time from Vitramon as 3:20 p.m. and from Technology as 3:25 p.m. The investigator's report recites that, after seeing the van near the Town Hall in Trumbull, areas in and around Bridgeport were checked without success, and "[t]he investigation was temporarily suspended at 2:50 p.m. Plumb testified that he thought it "a bit strange" that on both January 9 and January 12 his investigators had lost the van in approximately the same geographic area. He testified that he requested from the company the ad- dress of the driver, "so as to check if he lived in the area, if the vehicle was going home for lunch or some- thing of that nature." s The report erroneously calls the stop the seventh KIDDE, INC The investigative report submitted after the discharge recites: On Friday, January 16, 1987, at 6 :50 a.m . an opera- tive was in surveillance position, furnished with a schedule and a movie camera His instructions were to photograph either the van or the operator in any unauthorized, illegal , or unsafe activity . The van left at 7:41 a.m. and was followed to City Trust, Jacob Brothers, The Rehabilitation Center , Bridge- port Hospital , Bridgeport Janitorial , and Graphics, completing that stop at 8.14 a.m. Another operative took over so the first could back trace and set up a surveillance at the driver's home. The van was lost on Park Avenue, Bridgeport and located making a delivery at Technology in Trumbull at 11:34 a.m. It then proceeded to Pemberton Ave., Trumbull, and was stationery there. The van was parked in front of a green ranch-type house with an attached garage and white mail box at the front curb. Movies were taken of the area and the van which did not move. There was no sign of the operator. The report of January 16 further recites that the driver left the house at 3:05, p .m. and, "[m]ovies were taken of it on Surf Avenue and at 3:20 p .m.; [t]he operation was suspended." Marsala's January 16 delivery sheet recites that he left Graphics at 8:50 a.m. and Technology at 3 p .m The de- livery sheet submitted recites that Marsala returned to the warehouse at 3:30 p.m having completed 32 stops that day. The house on Pemberton Ave., Trumbull, was the home of Marsala. The report of the last surveillance of Marsala is as fol- lows: On Monday, January 19, 1987, at 7 a.m . the oper- ative was in surveillance position and saw the sub- ject vehicle depart Avon Street at 7.45 a.m. It was followed to Moore Special Tool, Bridgeport Hospi- tal, Saint Vincent's Hospital, Hewitt, Lindquist Hardware, 10 Middle Street, and U I., from where it departed at 8:36 a.m. The van was lost in traffic at 8:37 a.m. and picked up again at 8.47 a.m. on Iranistan Ave, departing Santa Fuel. It was fol- lowed to Parents and Friends and lost at 8:48 a.m. Backtracing again , the operative went to Vitra- mon in Monroe, waited there and saw the van at 11:05 a.m It was followed to SPATH , south on route 25, to the intersection of Route 111. There, the van turned right on to Lake Avenue and turned right again. At 11:29 a.m. the van was parked in front of the same house on Pemberton in Trumbull, facing the wrong way. At 11:38 a.m ., the van left Pemberton and was lost. The Brigeport Trumbull area was checked and the van again located on Pemberton at 12:29 p.m., parked again in front of the green house. At 2:04 p.m., the van left the house , was seen at the Trum- bull Town Hall Shopping Plaza where it picked up a female passenger and went back to the house. At 2:57 p.m., the van left the house. Due to ad- verse weather and road conditions , it was lost, so 845 the operative proceeded to Avon Street . Again, ad- verse weather made visibility extremely poor and driving hazardous, so the surveillance was suspend- ed It should be noted that movies and 35MM still photos were taken of the van during the time it was parked at the house As weather was decidedly dif- ferent on both days, the movies and photos clearly established the van was at the green house on Pem- berton in Trumbull on two separate occasions. Moreover, it was seen there by two different inves- tigators as corroboration Investigation terminated. On the driver delivery sheet submitted at the end of the day, Marsala recited that he completed his delivery at "U.I." at 9.45 a.m.; his delivery at Santa Fuel at 10:50 a.m.; and his delivery at Vitramon at 320 p.m. From January 9 through January 20, nothing was said to Marsala about his conduct of January 9, 12, 16, or 19. 4. Background In 1983 and 1984 Respondent employed four drivers: Marsala, Edward Riclcio , Daniel McFarland, and Dean Soderberg. All four of these individuals testified at the hearing, and all four testified that at some time in 1983 or early 1984 Caponi conducted a meeting of the drivers and John Stewart, shipping supervisor. Marsala, Riccio, and McFarland placed Landry at the meeting also; So- derberg testified that Landry was not present . The four employees also differ in their testimony as to whether it was a regularly scheduled meeting or one specially called by Caponi, and there was also disagreement among the employees as to how the question arose, but all four testified that at some point in the meeting Caponi addressed the question of what the employees should do if they finished their routes early . All of the employees testified that Caponi told them that they could go home, or anywhere else, and come back at quitting time, dust as long as they did not go to a bar. Caponi and Landry denied that any such meeting oc- curred ; Stewart, who was a (nonsupervisory) salesman at the time of the hearing, was not called to testify by either party. McFarland and Soderberg testified that after the meet- ing conducted by Caponi, they did not "go home" after they finished their routes. Riccio testified that after Ca- poni's meeting, and up until the time Landry introduced the driver delivery sheets, discussed below , he did go home when he finished early in the day. Marsala testified that, from the Caponi meeting until the day of his dis- charge, he hurried through his deliveries , usually finish- ing between 11:30 a.m. and 1:30 p.m. each day, and went home. He would stay there for periods of as much as 4 hours after he finished his routes , and then drive to the warehouse just before quitting time, 4 p.m. In 19836 Landry, at a meeting of the drivers , intro- duced a "Delivery Sheet" form which was to be com- 6 Just when in 1983 is not clear It would necessarily have been after the above-mentioned meeting conducted by Caponi (which meeting, of course, Landry and Caponi deny the occurrence of) 846 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD pleted, in part, each day by the drivers. The form has 40 numbered rows. Each row is divided into columns which are designated for city, control number, consignee name, consignee's address, "SDI" (unexplained in the record), signature of the consignee's agent, number of pieces de- livered, and "Time Out" (delivery times) which was used to represent time of completion of delivery to each consignee. Additionally, the sheets have blanks for desig- nation of date, route number (2, 3, 4, etc.), name of the driver, truck number, total pieces delivered, total number of stops made, time of departure from, and return to, the warehouse, and miles traveled. Drivers were responsible for getting the signature of the consignee's agents and entering the delivery times, the total number of pieces delivered, the total number of stops made, the times of departure from, and return times to, the warehouse, and miles traveled. Shipping clerical filled in the other infor- mation each evening before the days of delivery. When called by General Counsel, Landry testified that the purpose of the delivery sheets "is [so that] we would have a signed proof of delivery for the particular number of pieces for a particular control number, from our cus- tomer." When asked specifically for the purpose of having the drivers record their delivery times, Landry answered, "so that we could keep track of the stops they had, and where they were." Regular statistical compilations were made by the ship- ping clerks. These compilations included the number of pieces, the number of stops, the amount of mileage, the times the drivers left the warehouse, and the times they returned. Landry testified that he regularly reviewed these compilations to check on each driver's perform- ance. The delivery times were not recorded in the com- pilations by the shipping clerks, and they were not used in any other statistical compilations. Landry testified that he "occasionally" looked over driver delivery sheets, the only company document upon which delivery times were recorded. For the argument that Marsala had permission to falsi- fy the delivery times, General Counsel relies solely on the testimony of Marsala. Marsala testified that at the meeting, which Landry introduced the delivery sheets, he addressed Landry and stated: Bob [Capone] told us when we get done working we could go home, we could do what we want, and now all of a sudden he wants to know where we are each minute of the day. You are getting away from the original idea trying to pin down a truck driver, then you can end up not getting your deliv- eries done. He [Landry] said, "Clarence," he said, "let me put it this way here; the sole purpose of these papers are if we get a call from somebody saying a Business Products truck just ran over my lawn, okay what number was the truck, what time, I want to be able to say to the lady well no, I looked at the sheet and that truck was somewhere else." He said this was the sole purpose of this doc- ument. [Punctuation supplied.] None of the other drivers testified that they witnessed this exchange between Landry and Marsala although all of the three other drivers (Riccio, McFarland, and So- derberg) did testify that they were at the meeting. More- over, Riocio denied that there was any discussion at that meeting of any permission given to drivers to go home. Marsala further testified that: When the meeting was over, I stayed a little longer, had a discussion with Wayne, I said, "what am I going to do with these sheets?" He said, "Clarence do what you want, because that is not aimed at you. Don't worry about it." At that point I drew the conclusion that they must be trying to get some- body, fine, that's what I did. [Punctuation supplied.] Landry denied that he had any such exchanges with Marsala, either at or after the meeting at which the de- livery sheets were introduced. McFarland acknowledged that he knew that it was his responsibility to ask supervision for other work to do in those instances when he finished his route early and re- turned to the warehouse before quitting time Riccio ac- knowledged that, once or twice a month, he was sent back out on deliveries when he had returned to the warehouse before quitting time. Marsala testified that for the first 3 or 4 weeks after the delivery sheets were introduced he did not fill them out. Then Landry called him to the office and told him that O'Hal had reprimanded him (Landry) because Mar- sala was not filling out the times on he delivery sheets. Further according to Marsala: I said "well, Wayne home on, let's be honest, some days I got 8 stops, some days I got 48. I'm out until 3:30, I don't want to put times on the sheets, and put down the wrong-times, I don't like the idea of lying on paper, I don't like that idea." He said "Clarence, look," he said, "you have to cover all day on that sheet. That is what you got to do." [Punctuation supplied ] Landry denied this testimony by Marsala. Marsala testified that after receiving the permission from Landry, he `fudged the times to finish at 3.30." Marsala added that at some time after Landry told him to "cover" the whole day, Night Shipping Supervisor Bacello also told him to "fudge" the figures Marsala tes- tified that Landry was present when Bacello made the statement and that Landry said nothing. Landry and Ba- cello denied that any such exchange occurred. Landry testified that the period during which Marsala did not fill out the timesheets was 6 months, not 3 or 4 weeks. Landry testified that during that period Marsala's family had several problems with illnesses, "and I just kept reminding him that he has got to fill these out. And finally, it had to be March or April of '86, he started to fill them out on a regular basis." Marsala testified that he usually wore a green uniform and safety shoes as he left on his route each morning, but in the evenings he sometimes returned in Bermuda shorts, a sport shirt, and sneakers. He further testified that Landry and Bacello at times commented on his KIDDE, INC dress by asking him if he had gotten in 9 or 12 holes of golf. Landry and Bacello denied joking with Marsala about his dress and or making any comment which would have indicated that they knew that he was taking enough time during the day to play 9 or 12 holes of golf. Landry did not deny seeing Marsala dressed casually when he re- turned from his route. He testified that there was nothing unusual in this because, " [h]e had ample opportunity to change 'his clothes. He could change at a customer; he could change in his van ; he could stop at home at lunch and change them." Landry testified that the drivers were allowed to stop on their routes at home for lunch . The drivers were per- mitted 45 minutes per day for lunch , 4 days a week, and 1 hour per day on the fifth day . (The fifth day was payday, and the employees were given the extra time to cash their checks ) Landry further testified that the em- ployees were allowed 15 minutes each day for a morning break and that they could combine their lunch and break times into one break of 1 hour (or 1 hour, 15 minutes on payday). It is undisputed that, up until the surveillance by LSI, Marsala was considered a good employee As noted, at the time of the discharge Marsala was the senior driver. Landry acknowledged that throughout Marsala's em- ployment he always completed his routes, was very good with customers, and did everything that was asked of him. It is undisputed that he consistently delivered all the packages which were placed on his van each day; he re- ceived at least one glowing letter of praise from a cus- tomer, and there is no evidence that Respondent ever re- ceived any complaints from any of the customers on his routes during his entire tenure of employment . As noted, Respondent did not make productivity studies on the basis of times of deliveries although it did so on the number of stops made each day, the number of pieces delivered, and the number of miles traveled. Landry ac- knowledged that, on the basis of those statistics, he had concluded that Marsala was doing a good job. Respond- ent repeatedly emphasized to employees the necessity of holding down overtime; although Marsala did claim same overtime, he was consistently lowest in such claims of all the drivers. Landry did give Marsala poor marks in keeping his van and certain work areas clean. Once, in May or June 1986, the Stratford supervision was awarded a country club golfing weekend , but none of the members of management could attend. Marsala, an accomplished golfer , was given the opportunity to go. According to the undisputed testimony of Marsala, he was informed of the golf outing by O'Hal who told him: Clarence, I want to compliment you . because you are the exact kind of driver we want, you don't get any complaints from any customers , you never bring anything back to the building, you complete your run. You work the minimum amount of over- time; we are going to reward [you]; we know you are a golfer, we are going to reward [you] with a trip to New York's exclusive country club, on us. Take a day off; have a good time. It's a . . . dinner 847 at night. Bring a sports jacket and take the day off with pay. [Punctuation supplied.] Marsala credibly testified that he made a strong at- tempt not to work overtime , but sometimes it was un- avoidable . He testified that the occasions on which he did have to work overtime were usually caused by delays in the shipping clerical procedure.7 During the two summers before the discharge , Landry gave Marsala permission to punch out 45 minutes early, I day each week, so that Marsala could participate in a golfing league. Marsala acknowledged in his direct testi- mony that Landry conditioned the permission on Marsa- la's representation that he had worked straight through his (45-minute) lunch period. On cross-examination , Landry acknowledged that Re- spondent has a progressive disciplinary system for em- ployees. The first step is a verbal warning; the second step is a written warning; the third step is a suspension; and the fourth is a discharge . On redirect examination Landry also testified that Respondent has a personnel manual which states that for some offenses immediate discharge is "appropriate ." The manual was not intro- duced by either party, and Landry did not give examples of what offenses Respondent considered appropriate for immediate discharge. Examples of prior instances of warnings were entered into the record. On May 25 , 1984, Landry gave employee Ed Riccio a written warning notice. It is entitled, "Standard Operat- ing Procedures," and the text is: "This is to inform you that the standard operating procedures require you to call in regarding any discrepancies which occur with your deliveries or your paperwork." On October 5, 1984, Landry gave employee Dean So- derberg a memorandum entitled, "Employee Warning Notice." As "Nature of Violation" Landry checked "Disobedience." The form has squares for designating "first notice" and "second notice," and the former is checked Under "Remarks" Landry wrote: "Failure to fill in `Time Out' on your delivery sheet after having been reminded on several occasions . Soderberg acknowl- edged that he was warned several times for his failure to fill out the "Time Out" columns on his delivery sheets and that ultimately he was fired for, in part , his failure to do so. General Counsel does not contend that Soderberg was warned for falsifying his "Time Out" columns; So- derberg simply left that column blank on all his delivery sheets The reference to Willie Rios during the discharge interview (in Marsala's account) involves an incident in which Rios was given a verbal warning which was me- morialized by Landry . The memorandum, dated Febru- ary 8, 1985, states in full: 7 The procedure was the clerical took packing slips from the warehou- semen and brought them to the drivers in the afternoons The drivers were to arrange the packing slips in the order of the next day 's delivery The clerical then listed the stops on the delivery sheets , the loaders loaded the trucks (or the van ) in the reverse order of that which was listed on the driver delivery sheets Marsala testified that overtime oc- curred when the clerical failed to get the slips to him by his quitting time, 4 p in 848 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD This is a written statement of a -verbal warning given to Willie Rios yesterday. I saw his girlfriend in the truck. I told him it was against company policy. I explained if it happened again he would be terminated. I let it go as a verbal warning because he is a new employee and this was only his third week on the road. I feel I was fired for organizing a union. Although we do not work under a union contract, we have a written policy contract. In this contract it states must be one verbal, one written warning , a suspen- sion & termination. On 1-21-87 I was fired because Co. said I used Co. vehicle for personal use during Co. time which is not true, for falsifying times on Co. delivery sheets which I deny. When asked to distinguish the cases of Rios and Mar- sala, as far as having an unauthorized person in a compa- ny vehicle, Landry testified that Rios was treated differ- ently from Marsala because Rios had not driven a truck before and could not be expected to know all of the rules of the road; Marsala was a 20-year truckdriver and he should have known better. Landry further testified that he once gave Marsala, and all the other drivers, a copy of DOT regulations, one of which prohibits trans- portation of unauthorized persons. Marsala denied re- ceipt of the regulations and denied knowledge of the prohibition against transportation of unauthorized per- sons. On April 19, 1985, Landry gave employee Robert Ryan a written "first Notice" for an absence . The text of the notice is: "On Thursday, 4/18/85, you returned from your run at 12:30 p.m. You punched out and left for the day. You have done the same on more than one occa- sion. Your hours are 7:30 a.m.- (:00) p.m." No other evidence of warnings to employees was en- tered into the record. On November 7, Alan Wishengrad, vice president of New Jersey Office Supply (Respondent's parent compa- ny) issued a memorandum to various company execu- tives including - Bouthillier, Caponi, and O'Hal. The notice states: Under no circumstances are employees to use company trucks or vans for personal use or com- mute from their homes to the office. Recent changes in insurance coverage , as is imposed by Kidde, has made this policy even more important to enforce. There are to be no exceptions to this policy. Caponi testified that he received the memorandum within a day or two after November 7; that he posted it by the timeclock where notices to employees are usually posted; and that the notice remained posted for approxi- mately 2 weeks. Marsala was not called, in rebuttal, to deny that he saw the posted November 7 notice from Wishengrad. 5. Events following the discharge Plumb and O'Hal testified that LSI's investigation of the drivers routes continued after the Marsala discharge. One driver, Rios, was discovered drinking on duty and was discharged. Plumb testified that LSI had followed drivers "10 or 11" times between the discharge of Mar- sala and the date of the hearing. Marsala filed an unemployment claim with the State of Connecticut on January 29. The accompanying statement filed by Marsala includes: The statement by Marsala continues that he had been given permission 3 years before to do what he had done. 6. Credibility resolutions Although given ample opportunity to explain, Marsala could advance no justification for his written, sworn, statement that he had not used the company vehicle for personal use. Respondent contends that Marsala's false statement to the unemployment commission warrants dis- crediting Marsala in the entirety of his testimony. Gener- al Counsel advances the theory that Marsala's reference to "company time" qualifies what would otherwise be a concededly false statement to the unemployment com- mission. However, Marsala advanced no such theoretical justification, and the only logical conclusion is that Mar- sala lied to the Connecticut unemployment commission for the purpose of advancing his claim with that body. I have no reason to believe that Marsala was more dis- posed toward candor in advancing his claim before the Board. It is possible, of course, that a claimant would lie to one authority and tell the truth to another, but I am un- willing to give Marsala the benefit of the doubt. The reason for this is Marsala's admitted conduct in taking as much as 4 hours a day, for a period of years, to engage in paid loafing. As discussed below, I credit the testimo- ny of the four drivers, including Marsala, that at some time during 1983 or 1984 Caponi told the employees that they could go home if they finished their routes early. At the same time it is necessary to point out that McFar- land, a particularly credible witness, injected into his tes- timony about the Caponi meeting the statement that, "we were very slow at the time, very slow . ..." Apparent- ly Caponi was, back then, giving the drivers more sched- ule flexibility because of the slowness of business. How- ever, business later picked up substantially; Landry intro- duced the driver delivery sheets; and even Riccio quit going home when he finished his routes . But Marsala continued to "go home" for great periods of time (in ad- dition to those periods permitted for lunch, breaks, and check cashing) although he assuredly knew that Re- spondent needed greater driver productivity. In the circumstance of increased business volume, an honest employee who could loaf as much as 4 hours a day would tell his employer, categorically, that he had extra time (for which he was being paid) and that he could do more . Marsala, however, took advantage of Ca- pont's remark made in a different context; he took advan- tage of the of the bad management which permitted his abuses; and he played the situation to the hilt. Any em- ployee who would do this, for years, is a dishonest em- ployee and is, I feel, a dishonest person. KIDDE, INC. Therefore, while I credit Marsala's testimony on the "tooth and nail" remark he attributes to Bouthillier, I further credit him elsewhere only if his testimony is un- contradicted or where his testimony is corroborated by other extrinsic evidence. The reason that I credit Marsala on the "tooth and nail" remark is that, at that one point, Marsala displayed a more credible demeanor than did the one denying his assertions, Bouthillier. I specifically reject Marsala's testimony that, at the meeting at which Landry introduced the driver delivery sheets, Landry stated that the "sole purpose" for record- ing the delivery times was to defend against accident claims. Such use would be of 'marginal effectiveness, at best; there is no logic to the argument that Landry in- tended the use of the document only for that purpose; and no other driver corroborated Marsala's testimony in this regard. I further discredit specifically Marsala's, testimony that, after the meeting at which the driver delivery sheets were introduced by Landry, Landry told Marsala that he could do what he wanted with the sheets because they were not "aimed" at Marsala; and I specifically discredit Marsala's testimony that a few weeks later Landry told him to "cover all day on that sheet." Marsala was per- ceived to be a good employee; however, General Coun- sel advances not the slightest reason to believe that Mar- sala was "rewarded" with permission to falsify company records while other employees were required to maintain them honestly. I further discredit specifically Marsala's testimony that Bacello told him, in Landry's presence, that he should "fudge" the delivery times; that Landry and Bacello joked with him that he had enough spare time to play 9 or 12 holes of golf before returning from his route; and that Bouthillier told him that he could go home after finishing his route. As stated above, I do believe the testimony of the four drivers that Caponi told them in 1983 or 1984 that they could go home when they finished their routes. Each employee, including Marsala, appeared credible on the point, the differences in their accounts are not significant; and Respondent advances no cogent argument for con- cluding that McFarland, Riccio, and Soderberg perjured themselves for the benefit of Marsala. Indeed, McFarland was still an employee and was in an obvious position to fear reprisal for his testimony, especially if it had been false. B Analysis and Conclusions The legal analysis to be applied in cases of allegedly unlawful discharges was recently restated by the Board in Joseph De Rarto, DMD, PA., 283 NLRB 592, 594 (1987): In NLRB v. Transportation Management Corp., 462 U.S. 393 (1983), the Supreme Court affirmed the test enunciated by the Board in Wright Line10 for determining whether an employee was discharged because of the exercise of Section 7 rights. Under Wright Line the General Counsel, under Section 10(c) of the Act, has the burden of establishing a prima facie case that the employee's protected con- duct was a substantial or motivating factor in the 849 employee'sidischarge or other adverse action taken by the employer. Once the General Counsel satisfies this burden, the employer can avoid liability under the Act by proving by a preponderance of the evi- dence an affirmative defense that it would have taken the same action even if the unlawful motives had not existed. 10 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) The first question presented under Wright Line is whether General Counsel has presented a prima facie case. There is no question of Respondent's knowledge of Marsala's union activities. Indeed, Respondent defends its actions, in part, on the theory that it has known for years that Marsala was a proponent of unions and that he as- sisted in organizational attempts by the Steelworkers and another local of the Teamsters in 1983 and 1985, respec- tively. Specifically, in regard to the 1986-1987 campaign by the Charging Party, Bouthillier's testimony included Marsala's statement that Marsala "wanted to go forth with a union," and Respondent has not denied the testi- mony by union representative Keegan that Landry told Keegan that Respondent knew that Marsala was "the inside person" who was passing out union authorization cards. Evidence of animus toward unions, in general, and toward Marsala's activity, in particular, exists in the record. Caponi's February letter of plainly states- "We are against the Union. We do not think the union is a good thing for Business Products or for our employ- ees . . . It [the Company] is something worth fighting for against outsiders who tear it down " Finally I have credited Marsala's testimony that when he told Bouthil- lier that he was going to engage in an another organiza- tional attempt, Bouthillier replied, "I will fight you tooth and nail." Marsala's misconduct came to light only because of LSI's investigation; I find that the investigation would not have been conducted had it not been for Marsala's protected activity. Therefore, General Counsel has presented a prima facie case of unlawful discrimination, and the reasons with which Respondent has come forward must be ex- amined. Respondent contends that the investigation was under- taken not because of Marsala's protected activities but for other reasons, many other reasons: (1) Respondent wanted to know if it should add a van to its Stanford op- eration; (2) Respondent was considering eliminating the Stratford van (driven by Marsala); (3) the lease of the then-used trucks (but, of course, not the owned van driven by Marsala) was expiring; (4) Respondent wanted a review of overtime being paid to drivers; (5) Respond- ent wanted to know if drivers were "driving safely, paying attention to traffic laws and regulations"; (6) Re- spondent wanted to know if "drivers were performing and servicing customers regularly", (7) Respondent wanted, to know if the drivers "were, in fact, servicing 850 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD all of our customers within the eight hours that we were paying"; (8) Respondent wanted to "determine that, or if, we would need larger trucks."These reasons, and the quotes, are from Caponi's testimony. Another reason was given by O'Hal: (9) Respondent wanted to see if addi- tional stops could be added to the routes. In his testimo- ny, Plumb added another reason: (10) whether there were any "lunchtime irregularities."8 With this multiplicity of reasons, the first logical ques- tion is why some sort of survey was not conducted sooner. No explanation is given. The next question is why Respondent chose, for its industrial research, LSI. The firm had nothing to recommend it except that the boyfriend of the girlfriend of Caponi's wife had reported only that LSI performed an investigative service. Plumb acknowledged that in the field of labor relations LSI's investigations involved cases of employee misconduct. Therefore, as this record stands, rather than hire a business consultant, or simply making a few telephone calls to customers, or just talking to the direct supervisor of the drivers, 9 Respondent hired a private detective agency which investigated employee misconduct. From this, it must be concluded that Respondent's litany of "business" reasons for employing a private detective is a sham. Respondent hired LSI to do what LSI did in the field of labor relations, investigate employee misconduct Respondent also advances a multiplicity of reasons for the selection of Marsala as the first driver10 who was subjected to professional surveillance: (1) Plumb and Caponi testified that the Bridgeport route of Marsala was selected because Plumb's investigators were more famil- iar with the area; neither Plumb nor Caponi mentioned the possibility of replacement of the van with a truck as a consideration. (2) Respondent's statement of position submitted to the Regional Office before complaint al- leged that the Bridgeport route was selected because Re- spondent was considering replacing the van; the Bridge- port familiarity of LSI's investigators was not mentioned (3) O'Hal, obviously covering the fact that his comptrol- ler had omitted replacement of the (capital investment) van as a reason, testified that considerations involved were both (3a) replacement of the van and (3b) the fa- miliarity of LSI's investigators with the Bridgeport area. LSI, itself, added another theory of route/driver selec- tion. (4) Its written report states, "vehicles were chosen at' random and a prospective list drawn up so as to facili- tate scheduling of investigators." (Emphasis added.) No mention is made of a greater familiarity with the Bridge- port area, although it was supposedly Plumb, himself, who advanced this reason at the January meeting. More- over, the regularity with which the investigators lost the 8 Plumb also mentioned driver safety in his testimony and in the intro- duction to the written LSI report quoted above Driver safety was listed concern No 5 mentioned by Capone, however, the extensive LSI report of the surveillance of Marsala makes no mention of the degree of safety which Marsala was driving I find that this reason, like others, is a sham 9 Landry was consulted neither about the employment of a detective agency nor the discharge of Marsala io Respondent's witnesses had obviously been coached to say that the routes, rather than the drivers, were being surveilled However, as noted above, Respondent did not hire a business consultant, it hired a firm that investigated employee misconduct At any rate, how "routes" could be investigated without the investigation of drivers is not understandable van (even when they had the addresses for the deliveries with them) makes it unlikely that they were more famil- iar with Bridgeport than any other of the communities served by Respondent. The multiplicity and inconsistencies of "reasons" for initiating the investigation, and a multiplicity and incon- sistencies of the "reasons" for selecting Marsala to be the "first" to be followed belies any contention that the sur- veillance was prompted by, and that Marsala was fol- lowed because of, legitimate business considerations. However, LSI's report bears the most telling of the evi- dence that Marsala was the object of the surveillance. At the conclusion of each of the first three days of surveil- lance, when obvious grounds for some imposition of dis- cipline had been established, the report recited: "Investi- gation Suspended " When, however, Marsala was caught (and photographed) committing a more serious offense, carrying an unauthorized person in the van, the report closes with the pointed conclusion: "Investigation termi- nated." , While track-covering surveillance of other drivers were conducted later, the conclusion of LSI's report, and the sham nature of the reasons advanced for the ini- tiation of the surveillance and the selection of Marsala to be the first driver followed, compel the conclusion that LSI was commissioned to catch Marsala in misconduct which would colorably justify discharge, and LSI's "In- vestigation terminated" when it believed it had fulfilled that commission. Employee misconduct, discovered only because of an investigation prompted by the employee's protected ac- tivity, cannot serve as a lawful basis for discipline.' I This conclusion actually ends the inquiry. However, there is more On the evenings of January 9, 12, and 16, Plumb ver- bally reported to Caponi or O'Hal the results of each day's investigation. On each occasion of the verbal re- ports, Respondent had knowledge that Marsala was guilty of misconduct, falsification of company records, and/or parking at home for hours. However nothing was done; certainly Marsala was not given the benefit of Re- spondent's progressive disciplinary system and warned. The reason is obvious: If Marsala had been warned, he might not have committed a putatively dischargeable of- fense, and Respondent knew it. Therefore, instead of warning Marsala when this conduct was first discovered (or second discovered, or third discovered), Marsala was given more rope in the obvious hope that he would hang himself on a more serious offense, like giving a ride to an unauthorized person.12 Such observing of misconduct without direction or discipline, while case-building, has 11 Fixtures Mfg Corp, 251 NLRB 778 ( 1980), Kut Rate Kid & Shop Kwik, 246 NLRB 106 (1979) The cases cited by Respondent involve in- vestigations of employee misconduct , but each investigation was prompt- ed by circumstances other than the employees' protected activities 12 Respondent knew better than to . rely on the falsification of delivery times, alone, as a pretext , Landry acknowledged that delivery times were not used in any of his compilations of statistics for productivity analyses, and he acknowledged that he looked only at the drivers' recordings of delivery times "occasionally " KIDDE, INC before been held to be evidence of discriminatory motive, i 3 and I find it to be such here. Independent of the factors that the discharge was pre- mised on a spuriously initiated investigation and that Re- spondent laid in wait rather than dispensing some disci- pline when it was plainly called for, discrimination is demonstrated by the factor that Respondent did not afford Marsala the benefit of its progressive disciplinary system.14 Landry acknowledged that Respondent had a system of verbal warnings, written warnings, and suspen- sions, before discharges. Respondent did not take issue with Marsala's statement on his unemployment applica- tion that this system was included in a "contract," appar- ently some sort of employees' booklet or personnel manual. Indeed, on redirect examination, Landry was led to testify that the policy somewhere states that, for some offenses, immediate discharge is appropriate. Therefore, there is no question that Respondent has an established disciplinary system, an element brought out by the Gen- eral Counsel at the hearing and an element which Re- spondent, tellingly, does not mention in its extensive, and otherwise excellent, brief. As found in Transportation Enterprises, 240 NLRB 551, 560 (1979), not only is failure to afford an employee the benefit of a progressive disciplinary system evidence that management is not really interested in improving em- ployee performance, it is evidence of a subterfuge, and it may raise the "strong inference" that discipline is being imposed for protected activities. I find it raises that infer- ence here See also Ducane Heating Corp., 254 NLRB 112 (1981). When Landry was led to testify that some offenses were grounds for immediate discharge, Respondent was doing no more than hinting that something Marsala had done constituted such an offense The failure to produce its written disciplinary program raises the strong infer- ence that the conduct of Marsala, known at the time of discharge, i s did not constitute conduct described therein as grounds of immediate discharge. Of course, even without written policy statement, or past practices, same offenses would assuredly be consid- ered grounds for immediate discharge by any employer. However, a review of the evidence demonstrates that Marsala's conduct did not fall within any such policy, written 16 or unwritten. 13 NLRB v Amber Delivery Service, 651 F 2d 57 (1st Cir 1981), Cham- pion Parts Rebuilders, 260 NLRB 731 fn 1 (1982), enfd 717 F 2d 845 (3d Cir 1983), Continental Radiator Corp, 283 NLRB 234 (1987) 14 It is to be noted that Respondent does not contest Marsala's testimo- ny that O'Hal told Marsala, in the discharge interview, that O'Hal was under instructions to discharge Marsala, not to warn him Just who in- structed O'Hal to discharge Marsala is not disclosed by the record It probably was Bouthillier, the executive who told Marsala that only he could discharge Marsala, but resolution of this question is not necessary I5 At the time of the discharge, Respondent did not know that Marsala had been going home for hours for years, it knew only of his doing so for 2 days, January 16 and 19 38 On November 7, Respondent did issue a "no exceptions" policy statement regarding personal use of company vehicles This was no new rule, and it announced no new policy of discharge on first offense It also did not change the policy of allowing drivers to stop at home to take their allowed lunch periods, Landry testified that the practice is still in effect 851 Respondent knew that Marsala falsified timesheets on January 9, but he was not discharged for his first offense of doing that; he was not even discharged on his second known offense, committed on January 12, either. Re- spondent knew that Marsala went home for several hours on January 16, but he was not discharged for his offense of doing that. Therefore, it must be concluded that the entering of false delivery times, and staying at home for several hours, are not included in whatever in- fractions which Respondent ordinarily considers grounds for discharge on first offense. Nor did Respondent there- tofore consider giving a ride to an unauthorized person such an offense, because employee Rios kept his girl- friend in his truck all day and received no more than a verbal warning. Landry attempted to distinguish the cases of Marsala and Rios on the basis that Rios was a new driver and Marsala had been driving for 20 years and should have known better. While there is no general duty to be "fair," Landry's attempted distinction is necessarily pre- mised on an underlying claim of an effort to be fair to Rios. However, Marsala was the senior driver and had been acclaimed and rewarded as an exemplary (if not perfect) employee; holding Marsala to a higher standard and discharging him, while merely verbally warning Rios, stands any concept of "fairness" on its head. Therefore, I find that Marsala was a victim of dis- criminatory treatment; he would not have been dis- charged but for his protected activity, being the "inside person" who distributed union authorization cards. Accordingly, I conclude that, by the January 21 dis- charge of Marsala, Respondent violated Section 8(a)(3) and (1) of the Act. On the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I issue the following recommended17 ORDER The Respondent, Business Products-Division of Kidde, Inc., Stratford, Connecticut, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Discharging or in any other manner discriminating against any employee because of the employee's activity on behalf of Teamsters Union No. 145, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization. (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 Clarence Marsala immediate and full rein- statement to his former position of employment or, if that job no longer exists, to a substantially equivalent po- sition, without prejudice to his seniority and other rights i'! 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 852 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and privileges previously enjoyed, and -make him whole, with interest,18 for any loss of earnings and other bene- fits suffered as a result of the discrimination against him. (b) Remove from its files any reference to Clarence Marsala's unlawful discharge and notify him, in wasting, that it has done so and that it will not use the discharge 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 Stratford, Connecticut facilities copies of the attached notice marked "Appendix." 19 Copies of this notice, on forms provided by the Regional Director for Region 34, after being signed by Respondent's authorized agent, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. 18 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after January 1, 1987, shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 US C § 6621 Interest on amounts accrued prior to January 1, 1987 (the effective date of the 1986 amendment to 26 U S C § 6621), shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) 19 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 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 or- dered us to post and abide by this notice. WE WILL NOT discharge or otherwise discriminate against any of you for your activities on behalf of Team- sters Union Local 145, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America 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 guaranteed you by Section 7 of the Act. WE WILL offer Clarence Marsala immediate and full reinstatement to his former position of employment or, if that job no longer exists, to a substantially equivalent po- sition, without prejudice to his seniority and other rights and privileges previously enjoyed, and make him whole, with interest, for any loss of earnings or other benefits suffered as a result of the discrimination against him. WE WILL remove from our files any reference to Clar- ence Marsala's discharge and notify him, in writing, that we have done so and that we will not use the discharge against him in any way BUSINESS PRODUCTS-DIVISION OF KIDDE, INC.