Landgrebe Motor Transport, Inc.

1040 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Landgrebe Motor Transport, Inc. and Karlinda J. Hanes and Terry Vice. Cases 25-CA-18732 and 25-CA-18849 July 28, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On July 18, 1988, Administrative Law Judge Lowell Goerlich issued the attached decision. The General Counsel filed limited exceptions and a sup- porting brief, and a brief in support of the judge's decision. 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 1 and has decided to affirm the judge' s rulings, findings, and conclusions2 and to adopt the recommended Order as modified.3 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law 1 The Respondent's cross-exceptions and supporting brief, untimely filed after several extensions of time had been granted , have not been considered. 2 We disagree with the General Counsel's exception that the discipline and discharge of employee Vice, in addition to violating Sec. 8(a)(1), vio- lated Sec. 8(a)(4) because it was motivated in part by his having given an affidavit to the Board concerning employee Hanes' unlawful discharge There is insufficient evidence that the Respondent was aware that Vice had given the affidavit, especially in view of Vice's testimony that the Board agent took the affidavit at Vice's home and that Vice told no one connected with the Respondent about it . Accordingly, we find there is insufficient evidence to support this 8(a)(4) allegation and we affirm the judge's dismissal. 0 Contrary to the General Counsel, we agree with the judge that the reinstatement of employee Hanes is not appropriate in this case . In doing so, we place primary reliance on the corroborated testimony of the Re- spondent's former supervisor, James Redar, that the Respondent had de- cided to discharge Hanes for reasons not unlawful under the Act at least 6 weeks prior to her participation in protected, concerted activity, and that the Respondent was already in the process of arranging her replace- ment at the time of her unlawful discharge . However, we do not agree with the judge's recommendation that Hanes receive backpay until she obtains substantially equivalent employment . The proper remedy in these circumstances is a make-whole order from the time of her unlawful dis- charge to the time she would have been terminated for reasons not un- lawful under the Act. See, e.g., Betances Health Unit, 283 NLRB 369, 386 (1987) We will modify the Order accordingly. The specific backpay period and consequent amount owed to Hanes are matters that we leave to the compliance stage of this proceeding. We find merit in the General Counsel 's contention that the two disci- plinary warnings issued against employee Vice violated Sec. 8(a)(1), as alleged in the complaint . As the judge pointed out in analyzing Vice's unlawful discharge, the Respondent singled him out from among its em- ployees for disparate, disciplinary treatment on June 29 and August 4, 1987, in order to develop a pretext for his discharge . We find that these warnings were in reaction to Vice 's protected, concerted activity and violated Sec . 8(a)(1). See, e.g., Maremont Corp., 294 NLRB 11 (1989) (un- lawful disciplinary action against employee Gardner) Thus, we correct the judge's apparent inadvertence in this matter , and we will modify the Order accordingly. judge as modified below and orders that the Re- spondent, Landgrebe Motor Transport, Inc., Val- paraiso, Indiana, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 2(a). "(a) Offer Terry Vice immediate and full rein- statement to his former job or, if that job no longer exists, to a substantially equivalent position, with- out prejudice to his seniority or any other rights or privileges previously enjoyed, and make him whole for any loss of earnings and other benefits suffered as a result of the discrimination against him, in the manner set forth in the remedy section of the judge's decision, and make whole Karlinda Hanes for any loss of earnings and other benefits suffered as a result of the discrimination against her, from the date of her unlawful discharge to the date she would have been terminated for reasons not unlaw- ful under the Act." 2. Substitute the following for paragraph 2(b). "(b) Remove from its files any reference to the unlawful discharges of Terry Vice and Karlinda Hanes and the unlawful disciplinary warnings issued to Terry Vice and notify them in writing that this has been done and that neither the dis- charges nor the disciplinary warnings will be used against them in any way." 3. Substitute the attached notice for that of the administrative law judge. 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 discharge or otherwise discrimi- nate against our employees who concertedly present grievances or complaints to us. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- 295 NLRB No. 118 LANDGREBE MOTOR TRANSPORT 1041 cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Terry Vice immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed, and WE WILL make him whole for any loss of earnings and other benefits resulting from his discharge , less any net interim earnings, plus interest. WE WILL make whole Karlinda Hanes for any loss of earnings and other benefits resulting from her discharge, less any net interim earnings , plus in- terest, from the date of her unlawful discharge to the date she would have been terminated for rea- sons not unlawful under the Act. WE WILL notify Terry Vice and Karlinda Hanes that we have removed from our files any reference to their unlawful discharges and the unlawful disci- plinary warnings issued to Terry Vice and that nei- ther the discharges nor the disciplinary warnings will be used against them in any way. LANDGREBE MOTOR TRANSPORT, INC. Richard J. Simon, Esq., for the General Counsel. J. Charles Sheerin, Esq., of Michigan City, Indiana, for the Respondent. Karlinda J. Hanes, of Valparaiso, Indiana, in propria per- sona. Terry Vice, of Valparaiso, Indiana, in propria persona. DECISION STATEMENT OF THE CASE LOWELL GOERLICH , Administrative Law Judge. The original charge in Case 25-CA-18732, filed on June 18, 1987, by Karlinda J. Hanes, was served on Landgrebe Motor Transport, Inc. (the Respondent) by certified mail about June 18, 1987. The original charge in Case 25- CA-18849, filed on August 26, 1987, by Terry Vice, was served on the Respondent by certified mail about August 26, 1987. The cases were consolidated for hearing and an order consolidating cases, complaint, and notice of hear- ing was issued on September 25, 1987. The consolidated complaint alleges that the Respond- ent unlawfully discharged Karlinda J. Hanes in violation of Section 8(a)(1) and Terry Vice in violation of Section 8(a)(4) and (1) of the National Labor Relations Act (the Act). The Respondent filed a timely answer denying that it has engaged in the unfair labor practices alleged. This matter came on for hearing on January 19 through 22 and February 10 and 11 , 1988. Each party was afforded a full opportunity to be heard, to call, ex- amine, and cross-examine witnesses, to argue orally on the record, to submit proposed findings of fact and con- clusions, and to file briefs . All briefs have been carefully considered. On the entire record in this case and from my observa- tion of the witnesses and their demeanor , I make the fol- lowing FINDINGS OF FACT,' CONCLUSIONS, AND REASONS THEREFOR I. BUSINESS OF THE RESPONDENT The Respondent is, and has been at all times material, a corporation duly organized under, and existing by virtue of the laws of the State of Indiana. At all times material, the Respondent has maintained an office and place of business in Valparaiso, Indiana (the facility), and is, and has been at all times material, en- gaged at the facility in the motor transport of freight. During the past 12 months, a representative period, the Respondent, in the course and conduct of its business op- erations described above, purchased and received at its Valparaiso, Indiana facility products, goods, and materi- als valued in excess of $50,000 directly from points locat- ed outside the State of Indiana. During the past 12 months, a representative period, the Respondent, in the course and conduct of its operations described above, received revenues in excess of $50,000 for the interstate transportation of goods. During the past 12 months, a representative period, the Respondent, in the course and conduct of its operations described above, received revenues in excess of $50,000 for intrastate transportation of goods for nonretail cus- tomers, which nonretail customers during the same rep- resentative period of time each either (i) purchased and caused to be shipped to their respective Indiana locations directly from points located outside the State of Indiana goods and materials valued in excess of $50,000 or (ii) manufactured, sold, and shipped directly from their re- spective Indiana locations to points located outside the State of Indiana goods valued in excess of $50,000. The Respondent is now, and has been at all times ma- terial, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE UNFAIR LABOR PRACTICES A. The Status of James Redar James Redar held the title of office manager. As de- scribed by Roger E. Landgrebe, part owner and secretary/treasurer of the Respondent, Redar's duties were as follows: "He was supposed to be in charge of the office functions and procedures. He had a primary duty in fulfilling our claims area, managing and taking ' The facts found herein are based on the record as a whole and the observation of the witnesses The credibility resolutions have been de- rived from a review of the entire testimonial record and exhibits, with due regard for the logic of probability, the demeanor of the witnesses, and the teachings of NLRB Y. Walton Mfg. Co., 369 U S. 404, 408 (1962) As to those witnesses testifying in contradiction of the findings herein, their testimonies have been discredited either as having been in conflict with the testimonies of credible witnesses or because the testimony was in and of itself incredible and unworthy of belief. All testimony has been reviewed and weighed in the light of the entire record. No testimony has been pretermitted 1042 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD care of and discharging that function." About 13 or 14 employees worked in the office. Redar had authority to assign work to employees; he interviewed applicants for employment , signed change of status forms, initialed timecards , allowed employees to leave early, approved overtime, disciplined employees, recommended discharge , and warned employees. Redar was the highest person in authority in the office. As stated by Landgrebe, "He was an employee who was working to fulfill the designated policies of my brother2 and myself ...." Contrary to the contention of the Respondent, I find that Redar was a supervisor within the meaning of the Act. B. The Status of Edward Mosser According to Landgrebe, Edward Mosser's job was "handling tariffs, rates, handling discounts with-or set- ting up discounts with customers, doing some sales work, and generally supervising the rates and tariffs for the Company. . . . He at one time was in charge of the night operations, as far as rating and billing . When Mr. Redar was on board, Mr. Redar became responsible for the billing clerks, Mr. Mosser retained his supervisory capacity for the evening rate person." Three employees worked on the office night shift, namely, Karlinda Hanes, Terry Vice, and Betty Wil- liams, and later Lois Claussen. Mosser had authority to discipline Vice-"[a]ny disci- pline he thought necessary." Mosser assigned work to Vice and approved vacation requests. At all times mate- rial, he was a salaried person. Contrary to the contention of the Respondent, I find that Mosser was a supervisor within the meaning of the Act. C. Alleged Concerted Activity The General Counsel in her complaint in Case 25- CA-18732 alleges that the Respondent discharged Kar- linda Hanes on January 26, 1987, because it knew or be- lieved that she "in concert with other employees, com- plained to the Respondent about its newly implemented rule which prohibited radio playing in the office of Re- spondent's facility." In her complaint in Case 25-CA- 18849 the General Counsel alleges that Terry Vice was discharged by the Respondent on August 24, 1987, for the same reason. The three employees who worked on the night shift, Hanes, a typist, Betty Williams, a typist, and Vice, a freight rater, for some years past had enjoyed the use of a radio while they worked. In January 1987, apparently Ronald Earl Landgrebe, president of the Respondent, decided to publish certain shop rules. James Redar, office manager, testified that he transmitted the rules to employees under his jurisdiction on January 19, 1987 . He testified that he related to the night shift that "there would be no smoking, there would be no coffee at the desks, you would be allowed two 15 minute coffee breaks a day, no radios, no televisions, 2 The president of the Respondent. 3 The evening "rate person" was Terry Vice. parking would be in the designated area of the office em- ployees. When that is filled up, you'd park where the truck drivers park, and not along the drive, blocking the passageway."4 "Either the next day or the day after" Redar received the following letter from Hanes: Just so you'll know and pass it along . . . all else is not too bad, but without the radio, the job is really difficult. The office is like a morgue, you tire more easily, type slower, have a definite lack of concentration, make more "x's," use a longer time frame to get the job done-all resulting in less accurate and expedi- ent work. Please realize, the radio "hypes" you up and zeros in your concentration on your work, in- stead of having your mind wander and focusing in on all that is going on around you and what differ- ent people are saying (which is what happens with- out it). I still really do not understand. Why, when a little thing like a radio makes a job so much more enjoyable and helps job productivity , is it eliminat- ed? After all, it is not like in the day time . . . there is just the three of us, with no customers or sales- men around, no one from outside the company coming and going. So who does it really bother? Everyone that it might affect has gone home! We are extremely hard workers, do not "pad" our hours or kill time, are not "petty" complainers, and probably work under a higher pressure thresh- old than any other department. We get the job done and in the best possible way and in the shortest time frame possible. If a radio relieves the pressure and makes the job even a little more enjoyable, is it fair that we should be deprived when it is just the three of us? For these reasons, I do not understand why this particular rule should be carried over to the night shift and really do not understand what it benefits when all we are trying to do is "good" and "expe- dient" work with whatever means will help, the radio being a help rather than a hinderance. Just wanted to put my "2 cents" in, so that you would know honestly how I feel. To add a slightly "humorous" note, as you may not know, we had to try to do our job in a cold and cramped trailer shop for months, heated only by a kerosene heater that gave us all headaches, have been forced to retreat for several nights to work in the conference room due to the extreme odor that filled the office when the metal furniture was painted at night, and still have to cope with dusting and vacuum cleaners twice a week. And all we ask in return is-a radio! Don't get me wrong . . . as I told Judy during our "job description" interviews, I do love my job and there isn't a whole lot I wouldn't do to help this company if asked. However, I would also like to 4 According to Redar, Ronald Landgrebe "wanted the office to be run more professional, did not like the radios on during the day or at night." LANDGREBE MOTOR TRANSPORT continue to "enjoy" it and continue to look forward to coming to work as I now do . [Emphasis added.] The letter came into being under the following cir- cumstances: At the meeting at which Redar transmitted the new rule, Hanes asked why radio playing was being terminat- ed. Redar answered that "it had come from upper man- agement, and that's the way it was, and that's the way it was going to be." Sometime after Redar had left, the three night-shift employees began discussing the changes which were being made. In regard to the radio, the em- ployees mentioned that it was "an aid in doing our work." Each of the individuals "expressed unhappiness that the radio was being taken away." The employees further discussed writing a letter to Redar advising him that he had "no comprehension of the pressures that we worked under at night, the distrac- tions we were under." The employees resolved to write Redar a letter and `just explain to him how we felt and that the radio was a benefit to our job, and the reasons why.,, Hanes explained that she came to write the letter "[u]pon discussion between the three of us and the fact that having written a letter once before, we were able to get the radio backs . . . [a]lso, because [Redar] did not work at night, we did not have direct, really contact or time to sit down and talk with him." During the course of the evening when lulls occurred, Hanes typed at the letter. She reviewed her progress with Williams and after the letter was completed showed it to Vice. She made a photocopy for each employee. Vice asked Hanes if he should sign the letter ; Hanes re- plied that she would sign it. Hanes placed the letter on Redar's desk. Vice had suggested that the letter be writ- ten. On January 22, Hanes conversed with Mosser as friend-to-friend at Mosser's desk around 5 p.m. Among other things, Hanes told Mosser that she "didn't under- stand why we couldn't play the radio anymore at night. I told him I knew he would understand that it did, in fact, help us with our jobs and that we all enjoyed the radio, and that we couldn't understand, really, why we couldn't have it anymore. I reminded Ed that when he worked at night for Terry, that he also brought in his own radio and had it sitting at the desk as he rated bills with the radio on." s Radio playing by the night shift commenced in 1979 and continued thereafter until 1983 or the first part of 1984, at which time Mosser spoke to the "night office people" (Vice, Hanes, and Elaine Klaus), and advised them they could no longer play the radio The employees explained to Mosser that radio playing "helped us to do our work better, that it helped filter out the distractions that we had, and, in fact, it helped us zero in on our work and kept us going " Mosser replied that if the em- ployees felt thusly they should put their "feelings into writing " Hanes composed a letter in handwriting and placed it on Mosser's desk together with a copy addressed to Ronald Landgrebe. Hanes had con- ferred with the other two employees about the letter . The next night Mosser informed Hanes, "[Y]ou can have your radio back , just keep the volume at a reasonable level " According to Mosser , he had discussed the letter with Ronald Landgrebe . Landgrebe told Mosser that "Linda had called him at home about the radio." Landgrebe approved that the em- ployees "could listen to the radio at a volume which would be acceptable to everyone in the building." 1043 Mosser asked why she did not discuss it with Redar. Hanes responded that he was "not really the type of guy that you can discuss things with." . At the time Vice was sitting next to Mosser ("Their desks were side-by-side"). Vice "turned his chair around and joined into the conversation." Among other things, Vice expressed concern "over not being able to play the radio." Mosser at that time was Vice's supervisor. Mosser indicated that he knew of the letter Hanes had written to Redar but he had not read it. Hanes left Mosser a copy. A January 22, 1987 diary entry by Mosser read, "Janu- ary 22 Linda was very upset about the ban on the radio and discussed it with me for 20 minutes." Mosser testi- fied that Hanes "asked me . . . why it was being done and if there was anything . . . I could do." Mosser sug- gested that Hanes talk to her supervisor . Mosser read the letter. Just prior to the time Hanes confronted Mosser, Hanes had met Redar leaving the office. She asked him if he had received her note. He answered in the affirmative. Hanes' testimony continued: I asked him if anything had changed and he said no. . . . I inquired to whether it would be possible to bring in radios that have headphones so that we could listen to those . I knew that during the day- time people had used those. And he replied, no we could not. On January 21, 1987, Vice remarked to Redar, "I don't think it was right that you took the radio away from us." Section 7 of the Act reads in part, "Employees shall have the right . . . to engage in other concerted activi- ties for the purpose of . . . other mutual aid or protec- tion." On the subject of "concerted activities" the Board has lately opined in the case of Meyers Industries, 281 NLRB 882 (1986) (Meyers II), reaffirming Meyers Industries, 268 NLRB 493 (1984) (Meyers 1): In Meyers I, the Board adopted the following defini- tion of the term "concerted activities": "In general, to find an employee's activity to be `concerted,' we shall require that it be engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself." The Meyers I definition expressly distinguishes between an em- ployee's activities engaged in "with or on the au- thority of other employees" (concerted) and an em- ployee's activities engaged in "solely by and on behalf of the employee himself" (not concerted). There is nothing in the Meyers I definition which states that conduct engaged in by a single employee at one point in time can never constitute concerted activity within the meaning of Section 7. On the contrary, the Meyers I definition, in part, attempts to define when the act of a single employee is or is not "concerted." [Footnote omitted.] 1044 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The letter delivered to the Respondent was prepared with the approval and participation of the employees on the night shift, it chronicled a common grievance, more than one employee mentioned the grievance to manage- ment, and the letter addressed to management sought the achievement of a common goal, i .e., the return of radio playing on the night shift. Moreover, in Hanes' letter ad- dressed to the Respondent appears these words, "And all we ask in return is-a radio !" [Emphasis added.] The foregoing factors bring the activities of the three night-shift employees within the concept of "concerted activities" as delineated by the Board in Meyers I and II, supra. It is further clear that the object of their concerted ac- tivities was to aid the night-shift employees in reinstitut- ing radio playing on the night shift, a condition of em- ployment they had enjoyed since 1979. Their purpose was mutual aid and protection in that they were attempt- ing to persuade the Respondent to improve employee working conditions by revoking the ban on radios. As was true in the case of Oakes Machine Corp., 288 NLRB 456 (1988), in the instant case Hanes' letter "rep- resented the thinking of more than one employee," the letter "specifies complaints that concern more than one employee," "a reasonable person reading the letter would conclude that it was the product of more than one person," "there is ample basis for concluding that the Respondent had reason to know that more than a single employee was involved in this protest," and the delivery of Hanes' letter was "engaged in with or on authority of other employees, and not solely by or on behalf of the employee [herself]." Id. Thus, it follows that Hanes was engaged in concerted activity in delivering the letter to the Respondent. D. The Discharge of Karlinda Hanes Karlinda Hanes was a 39 -year-old slim woman who commenced working for the Respondent in August 1979. She was hired as a part-time typist on the night shift. It took her about 2 weeks to learn the job. She has an asso- ciates degree in executive secretarial studies. While in the Respondent's employ she basically worked the same job. In 1981 Hanes voluntarily left her job. She returned to the Company in September 1982 at the invitation of Mosser. She worked part time until the spring of 1984- her shift was from 4:30 p.m. to 12:30 a.m., 5 days a week. During her second period of employment, Hanes re- ceived three pay raises, two were merit increases. Her last merit increase was in 1985; her final raise was August 1986. She described her job as "I typed freight bills, I did manifests, handled the petty cash, and on Friday nights, I also gave out paychecks to the drivers." Two other employees worked in the same office, Betty Williams and Terry Vice. Williams' work was similar to that of Hanes; Vice rated freight bills. During the period of her employment, Hanes had never been personally reprimanded or warned; nor had she ever been told that her work was unsatisfactory. On January 26, 1987, she was summarily fired by Redar. Hanes credibly described the incident as follows: A. He told me, "We no longer require your serv- ices." And, I said, "What do you mean?" And, he says, "You're terminated." I said, "Oh really? When's this termination supposed to take place?" And he says, "Now, immediately." He told me that he had tried to reach me by telephone during that day, but he had been unable to . I realized at this point that he was serious and I asked him why. He replied that under the laws of the State of Indiana, that he did not have to give me a reason and he didn't see any point to discuss it any further. I pressed him. I told him I didn 't understand why this was happening. I told him that after working there for a period of two years and coming back and working for another four and a half years, I thought I was entitled to some type of explanation of what was going on. He told me again, under the laws of the State of Indiana, he didn't have to give me a reason and he didn't-he just didn't see any reason to go into it. I pressed him again, I told him how much my job meant to him and I told him- Q. Meant to him? A. Meant to me, and I told him that I just didn't understand why this was happening, that I felt I de- served some kind of reason . At that point he looked at me and he said, "You resist change." I sat there for a minute, and I said, " You resist change." I sat there for a minute, and I said, "You mean all of this because of the letter I wrote about how we felt about the radio?" And he said, "You wrote one once before. " He then said, "I don't think there's any need to dis- cuss it any further," whereupon, he got up and walked out of the room. [Emphasis added.] The timing of the discharge of Hanes, a seemingly competent employee, on the heels of her participation in protected concerted activities and the revelations of Redar while discharging her are sufficient to establish a prima facie case for the General Counsel . Thus, the teachings of Wright Linea come into play. Around the close of 1983 or the first part of 1984 Hanes and Vice embarked on a romantic adventure which was terminated in the early part of 1985. Hanes was separated from her husband in 1984 and divorced in 1985. There is no credible evidence that the romantic ad- venture interfered with work for the Respondent. Apparently the Respondent learned of this romantic adventure from notes written by Hanes to Vice found in 1984 in Vice's wastebasket and desk drawers by Mosser, Vice's supervisor.' According to Mosser, in April or May 1984 he revealed to the Landgrebe brothers "[his] knowledge of something that could have come from those notes." Ronald Landgrebe testified that he knew Hanes was "personally involved with Mr. Vice." Roger Landgrebe testified that he and his brother "dis- cussed" the "social activity in the office" in which Vice and Hanes were stationed. It was taken to their father, Earl Landgrebe, who "chose not to do anything about 6 251 NLRB 1083 (1980) z After photocopying the notes (photocopies were admitted in evi- dence), Mosser returned the originals to the places he found them. LANDGREBE MOTOR TRANSPORT it." After the father died on June 29, 1986, and Ronald succeeded him as president of the Respondent, consider- ation was again given to discharging Hanes; however, the matter was delayed , according to Roger Landgrebe, because there was "no immediate replacement" and "there were priorities that had to be taken care of first." Redar testified that he was told in "November or De- cember, 1986" that "they wanted to move Lois Claussen to the night shift . . . replace Linda Hanes with Lois Claussen and hire a replacement for Lois Claussen on the day shift."s Rhonda Owens was hired on December 17, 1986, to learn Claussen's job, an accounts receivable job. Thereaf- ter, Redar was "told by Mr. Rosta to call in Lois Claus- sen, on a Saturday, and tell her that she was going to the night shift monday night. And, then, the following Monday, to tell Linda Hanes that she was terminated." Redar finished these tasks on January 26, 1987. Prior to discharging Hanes, Redar asked Ronald Land- grebe the reason for Hanes' discharge . Ronald Land- grebe responded "that she ran around the office bare- footed, and no bra, and she was a whore ."9 Ronald Landgrebe verified these reasons in his testimony. Donald Landgrebe augmented his testimony in which he charged that Hanes was a "whore" by describing the fol- lowing wholly ficticious incident. Ronald Landgrebe tes- tified that he had received calls from "other truck lines" who told him that their "drivers can't get out of there, because they're playing grab-ass" in the office." Ronald Landgrebe placed the source of the "grab-ass' story with Ronald Hora, terminal manager of Bender-Loudon Motor Freight. Hora was called as a Respondent wit- ness. He testified that he had communicated with both Ronald Landgrebe and Mosser . Hora's testimony : "I told Ron Landgrebe, that I do not need a delay in my freight coming from Valparaiso to Niles waiting on the bills to be manifested, and that's it" and that was all he had told Ron Landgrebe. This conversation occurred around August 24, 1986, and was provoked because his drivers were waiting for manifests1O to be typed by the Re- spondent's employees. The matter was corrected by no longer holding drivers until the manifests were typed. Mosser remembered the incident as described by Hors. I 1 8 Mosser produced a diary in which was written (December 3, 1986). "He [Redar] said that Ron told him to fire Linda ('she's a whore')." An- other exerpt from Mosser's diary (December 9, 1986) reads: "He [Redar] revealed a couple of interesting items , one, he is hiring another girl to help Lucy, and then hire another in January to replace Lois, who will, then, replace Linda, who will be gone. Also, Terry Vice will eventually be replaced by Don." 8 Redar testified, "I said why do you want to get rid of them, and he [Ronald Landgrebe] answered . . . that she ran around the office bare- footed, and no bra, and she was a whore." Redar testified that he had never observed Hanes engaged in such conduct. 10 "Manifest is the list of the freight bills that are on a particular truck There is one manifest made for each trailer . It lists the name of the com- pany . . who it's from, the city, the state, the revenue ... and weight." 11 Having observed the demeanor of all witnesses and weighed their credibility, I conclude that Ronald Landgrebe was an untruthful witness and much of his testimony was manufactured in the attempt to further the Respondent's position in this case. I have discredited him except where he has been corroborated by a credible witness. 1045 Claussen, Hanes' replacement , was thus described by Redar as "her telephone manners were very poor. She also played a radio that was on her desk, just for her own use. She-her dress appearance-she wore a ski jacket all the time, and it just wasn't professional... . On the phone, she would use words that were not very professional. ... To customers. ... [i.e.,] [s]hit, damn."112 William S. Rosta, the Respondent's controller, testified that Claussen had an "attitude problem . . . couldn't get along with her supervisor"; she was causing a "ruckus." She was "a big loud type of individual, who used profan- ity when she felt like it." On the other hand, the credible evidence is that Hanes, who was replaced by Claussen, was a good competent worker, that her romantic adventure never interfered with her job performance; that, according to Roger Lan- grebe, there were no "written employees rules that were violated by Linda Hanes . . . which was the basis of her termination"; that, according to Mosser, he had never seen Hanes exhibit "whore-like" behavior, nor did he ever see her walking in her "barefeet"; that Ronald Landgrebe never talked to Hanes about her alleged mis- conduct nor did any other supervisor; and that, except for the "bra" charge, the charges against Hanes have no support in the credited record. Albeit Hanes was a good and competent employee for many years13 and her replacement was an undesirable employee, the Respondent's right was to discharge her for any reason or no reason at all as long as such reason did not collide with the demands of the Act. t 4 Thus, Ronald Landgrebe was free, as far as the Act is con- cerned, to fire Hanes because she did not wear a "bra," went "barefooted," or was a "whore." I am convinced that Ronald Landgrebe harbored a longtime festering desire to discharge Hanes and that he intended one day to discharge her because he believed that her conduct was reprehensible and did not conform with his concept of what the behavior of employee Hanes ought to be, but that day was not January 26, 1987. It is apparent that Roger Landgrebe did not react fa- vorably to Hanes' letter. Redar testified that after Ronald Landgrebe read the letter, "[h]e was upset because she took company time to type it out." Moreover, Redar fur- ther expressed Ronald Landgrebe's reaction when he ad- vised Hanes that she was discharged because she resisted change when Hanes said, "You mean all this because of the letter I wrote about how we felt about the radio." Redar further commented, "you wrote one before." 15 In addition to Redar's testimony, other credible facts confirm that Hanes' discharge was triggered by her pro- tected concerted activities . Hanes was discharged shortly 12 Ronald Landgrebe must have known these characteristics of Claus- sen for, according to Redar, he said "that he wanted to move Lois Claus- sen up to the evening shift because of her phone language and her work habits." is Hanes had received a merit increase as recently as 1985. 14 "Management can discharge for good cause , or bad cause, or no cause at all" except "when the real motivating purpose is to do that which Section 8(a)(3) forbids." Portable Electric Tools Y. NLRB, 309 F.2d 423, 426 (7th Cir. 1962). is This testimony was undemed. 1046 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD after she engaged in concerted activities ; she was given no advance notice of her discharge; her discharge was precipitated without warning that disciplinary action was imminent. ' 6 She was discharged by the highest officer of the Respondent without any recommendations for dis- charge by any of her supervisors. Up to the time she en- gaged in concerted activities her alleged objectional con- duct had been seemingly condoned.'' The various rea- sons advanced for Hanes' discharge, other than the rea- sons stated by Ronald Landgrebe , indicate an attempt to advance pretext defenses against the real reason for her discharge, participation in concerted activities, and while Roger Landgrebe, referring to Hanes, testified that he was "convinced" that the "evening office staff should be upgraded," nevertheless, Hanes was suddenly replaced by an employee who was described as an undesirable employee who had an "attitude problem" and "just wasn't professional," a rather strange happening. Thus, I am convinced that the real reason t 6 for Hanes' discharge on January 26, 1987 , was because she partici- pated in protected concerted activities , and that she would not have been discharged on January 26, 1987, had she not engaged in protected concerted activities. See Wright Line, supra.' 9 I find that the Respondent, by discharging Karlinda J. Hanes on January 26 , 1987, vio- lated Section 8(a)(1) of the Act. D. The Discharge of Terry Vice Terry Vice was employed by the Respondent in April 1979. He worked continuously until August 24, 1987, when he was discharged. Mosser, the traffic manager and Vice's boss, described Vice's job as that of a rate clerk. "It was his responsibility to apply the proper rates to each shipment that-we handled." Vice testified that it took him about 2 or 3 weeks to learn his job.80 He further testified that "[a]fter we went to the new terminal, rating bills became easier and less complicated, because all you had to do was enter the zip code in the computer and the program itself took care of a lot of menial work as far as figuring the charges." In 1983 or 1984 the Landgrebe brothers (as in the case of Hanes) became disenchanted21 with Vice when the romance between Hanes and Vice became known to them.22 As in the case of Hanes, the brothers appealed 16 Cf. Dunclick, Inc., 159 NLRB 10, 16 (1966). 17 Roger Landgrebe testified, "Part of the management of Landgrebe Motor Transport, Inc. was unhappy with Mrs. Hanes' performance sever- al years ago. . my brother and myself." (Emphasis added.) 18 See NLRB v. Brown Food Store, 380 U.S. 278, 287 (1965). 19 Even though the reason as stated by Ronald Landgrebe was a cause for discharge, "[a] discharge which is partially motivated by the employ- ee's protected activity violates the Act despite the concurrent existence of an otherwise valid reason." NLRB v. Princeton Inn, 424 F.2d 264, 265 (3d Cir 1970). 20 Mosser testified that it would take "somewhere between one and two months" to learn the job. 21 It does not appear from the credited record that Ronald Landgrebe was as bitter toward Vice as he was toward Hanes. 22 One of Roger Landgrebe's earlier objections to Vice was stated, "had difficulty time not carrying on social conversations ... with Mrs. Hanes." to their father with the idea of terminating Vice, but their father chose to do nothing about it. After the father died in June 1986, the idea of discharging Vice was re- viewed but, nevertheless, Vice remained in the Respond- ent's employment until August 24, 1987 . During the period from June 1986 until August 24, 1987, Vice re- ceived raises in wages and during this period or before he was never told by the Respondent that it was looking for a replacement for him. According to Mosser "[t]he general work level that [Vice] performed was ade- quate."23 Mosser did not recommend Vice's discharge in 1987 nor was the decision to discharge him Mosser's de- cision. Mosser testified further that he "was surprised" that Vice's discharge had "occurred on the date that it did." Mosser had no prior notice of the discharge and did not know "positively, the reason" for Vice's discharge. "I was never given a definitive answer" to whether Vice was discharged for "problems during '84, '85, '86, and '87, which had been discussed." Mosser thought that Vice would leave because he was working on a degree from I. V. Tech. College in computer programming. After Hanes' charge was filed on June 18, 1987 (it was served on the Respondent on June 20 , 1987), and the complaint issued on July 31, 1987,24 the Respondent commenced documentary reasons for Vice's discharge.25 Redar testified that after Hanes "filed a lawsuit with the Labor Relations Board," "they" tried "to document rea- sons" to terminate Vice. Testifying further, Redar said, "Well, there was a process when they tried to find things that Terry was doing wrong so they had documentation on why they could terminate him." Roger Landgrebe testified that around June 29, 1987 (shortly after Hanes' charge was filed and 4 days after Vice had given his affidavit to the Board agent), he spoke26 to Vice about making personal phone calls,27 employees not punching out for their lunchbreaks, and "writing the time" on timecards . It was not clear from Roger Landgrebe's testimony whether Vice had been the culprit. Vice told Roger Landgrebe he would comply with his request. Although employees were engaged in the above-described conduct other than Vice, Landgrebe only spoke to his secretary (because she was doing it) and Vice about writing on timecards and about punching in or not punching out at lunchtime . Although personal phone calls were made by other employees, Landgrebe 23 In this regard Mosser testified, "I felt confident that [Vice) could complete the work " 24 The charge alleged that Hanes was discharged for her concerted ac- tivities; the complaint included: "the Charging Party acting in concert with other employees, complained to the Respondent about its newly im- plemented rule which prohibited playing the radio in the office of Re- spondent's facility." From these charges it was clear that the Respondent would, in all probability, face Vice as a Hanes' supporter in a Board hearing 25 The inference is that the Respondent adopted this procedure so that it would be better able to offer a defense to Vice's discharge if needed. Apparently the Respondent resolved not to be caught short as it was in Hanes' case. 86 Roger Landgrebe had rarely spoken to Vice dung his term of em- ployment. 87 Prior to June 29, 1987, Vice was never instructed to stop making or receiving phone calls. LANDGREBE MOTOR TRANSPORT 1047 only spoke to Vice. Roger Landgrebe appeared vague when asked from whom he had received the alleged complaints about Vice. None came from his Supervisor Mosser. Vice recalled Roger Landgrebe walking up to his desk and saying, "Writing in your time cards would no longer be tolerated," that he was making personal phone calls, that he was eating at his desk and that "he was tired of people kicking him in the butt." Vice denied that he had made personal phone calls or ate at his desk . After the notice, put out by the Respondent28 Vice made no fur- ther phone calls. Other employees in the office made what appeared to be personal phone calls on a nightly basis, until the day Vice left, including Claussen, who talked to her boyfriend sometimes for more than 45 min- utes. Roger Landgrebe sent Vice the following letter29 dated August 4, 1987, shortly after the complaint was issued: Dear Terry: Two things have been brought to my attention. The first is that you are in violation of the rules against food in the office. I have given orders to Jim Redar to clean all food stuffs out of your desks, package it and put it downstairs in the employee lounge area. Second item . A day or two after I personally spoke with you about lunchtime hours for the nightshift, punching the timecards instead of writing in times, and, personal phone calls from company phones while on duty, a report came to me that you had rated one or more boards of bills and then hid them while you took off for your lunch hour. That left the typists with no bills to type while you were gone. It was brought to my attention that the same happened last week and until someone else found the hidden boards of bills, you denied that such ex- isted. This is an intolerable situation. You as well as all employees are obligated to comply with the rules set down by the company and to perform your work in a manner which allows others to perform their duties efficiently. Your conduct, described above, is not acceptable. Unless you improve your performance in both re- spects, we will have to take further steps to insure compliance with company rules and the efficient performance of all employees' duties. Very truly yours, Landgrebe Motor Transport /s/ Roger Landgrebe According to Roger Landgrebe he wrote the letter be- cause, "I wanted to say what I wanted to say, and I 28 On July 1 , after talking to Vice, Roger Landgrebe put out a written notice regarding punching in and out at lunch hours and writing in times on timecards. 29 Roger Landgrebe could not recall the identity of any other employ- ee to whom he had ever addressed a similar letter. The Respondent had no system of written warnings thought it might as well be in writing as to say it verbal- ly, and have confrontation over what was said." Vice replied to Roger Landgrebe's written charges as follows: Dear Mr. Landgrebe: Since I was not given the courtesy of answering in person the charges which have been issued against me before a formal letter was written, I am taking this opportunity to do so. The two things that were brought to your attention about the pefor- mance of my job and the conduct of myself while performing my duties as Rate Clerk are not true. In regard to your first allegation, I have not eaten at my desk since the order was given by Jim Redar that food would not be eaten in the office. On the other hand, others that work in the office at night cannot make this claim because on numerous occasions they both have taken food and drink to their desks. Mr. Redar never said that food could not be kept in an employee's desk. The foodstuff that was taken from my desk on or about August 4, 1987, had been placed there by me several months prior to Mr. Redar's announcement that food would no longer be eaten at our desks. This food consisted of one jar of peanut butter which was almost entirely gone and had mold on the top of it and one can of cheese balls (empty) in which I kept my silverware-that's it. The second charge as to deliberately hiding boards and not giving them to the typists when I have finished rating them is totally untrue. I have never, to the best of my recollection, left for lunch and not given the typists boards to type; and I have never willfully or under any circumstances whatso- ever hidden boards from the typists so they had nothing to do. There would be no purpose in my doing so or in anyone saying that I have done so- except for the fact that ever since Lois has been put on nights, the typists' hours have seemed to in- crease, so maybe they are using me to cover the fact that they are not performing their job in the re- quired amount of time that it would seem necessary in which to do so. In addition, the charge is totally untrue that I had hidden bills last week and denied that they existed until someone else found them. The incident, as I recall, happened in the following manner: I was in the middle of rating a board of freight bills when the Dispatcher gave me the Jones board to rate, saying that he needed it typed as soon as possible. I put aside the work that I was doing and immediate- ly complied with his wishes. Later that evening, the Dispatcher was looking for a bill going to Walker Manufacturing in Culver, Indiana. I told Mr . Egli that I had rated the bill and that it was not Walker Manufacturing's usual freight bill but looked more like a packing list. At that point, I proceeded to go through the bills of lading which each typist had to see if anyone had typed it. I could not find the bill, so I immediately assumed 1048 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that someone had used it for a packing slip and checked the typed bills to see if it had been at- tached as such. While I was doing this, Lois went to my desk and said she found the bill. The bill had been rated and was covered up by an unrated board . I immedi- ately apologized to Don, stating that it must have been an oversight on my part, and finished rating the bills. Up to that point in time, the typist had not been waiting for any bills as they already had four or five boards on Lois' desk to type. Nor did they have to wait for bills at any time during the remain- der of the evening. I feel that I have tried to comply with the rules set down by the company to the best of my ability and that I have not willfully impeded the perform- ance of any of my co-workers. If you feel that their performance is not up to the company standards, mabe [sic] you should talk to them about the many "smoke" breaks Lois seems to take during the eveing and the amount of time both she and Betty spend in the Dispatcher's office while I am working and bills are there to be typed. If you wish to sustantiate [sic] my claims, might I suggest you talk to Mr. Jim Mas, rather than to Mr. Don Egli who seems to be very good friends with Lois. Sincerely, /s/ Terry D. Vice30 Roger Landgrebe claims that reports of Vice's alleged conduct came from other employees. None came from his boss, Mosser. Roger Landgrebe testified that in regard to the August 7 letter none of the alleged miscon- duct was repeated except "I believe that the report was made that the telephone calls were still going on."31 Roger Landgrebe admitted that he knew that employ- ees were punching out other employee's timecards, and that there was no rule against locking desks. No company representative ever told Vice to get more work done or that he was not performing "properly." In 1984 Vice saw an ad in a newspaper which ap- peared to be for his job. Ads for a night freight-estimator had been run in the South Bend Tribune and the Vidette Messenger, Valparaiso, Indiana, in June and July 1, 1984. (R. Exh. 15.) Vice contacted Mosser to ascertain if it were his job advertised. Vice was "concerned by the fact that if they were looking for somebody to replace me, why they hadn't said anything to me." Mosser replied to Vice that he had "no idea" if the Respondent was trying to replace him. Vice said "that if the company was trying to replace [him], all they'd have to do is put an ad in the Chicago paper and they would be overrun with applicants." According to Ronald Landgrebe he terminated Vice by saying, "Terry, I got bad news. Your services are no longer needed. Thank you. Goodby." He testified that he so The credible record in this case supports the truth of the statements made in the foregoing letter. 31 This report was supposed to have been made by Don Egli. Egli was not called for testimony. had first talked to Vice's replacement about 4 weeks before the discharge. According to Ronald Landgrebe, in 1984, he conclud- ed that Vice would not "straighten up his act" and deter- mined to fire him "[b]ecause the-some of the work he was instructed to do was not getting done." Ronald Landgrebe was the only one involved in this decision. The credible record in this case establishes that after Hanes' charge was received by the Respondent, Vice's affidavit given to the Board agent, and the complaint issued by the Board, the Respondent singled out Vice from among its employees who were engaging in the al- leged same conduct and issued to him an oral warning on June 29, 1987, a written warning on August 4, 1987, and discharged him on August 24, 1987, without stating a reason to him.32 Indeed there is no credible explana- tion for this singular treatment of Vice other than it was to direct attention away from the Respondent's real reason for discharging him. The Respondent , who was still no doubt smarting from the effrontery of Hanes in protesting its rule against radio playing and well aware of Vice's participation in such incident, chose to rid its employment of him also and for the same reason; he ob- viously became a persona non grata . However, unlike the Hanes' case the Respondent framed a coverup in which it attempted to insulate itself against unfair labor practices. It no doubt had not anticipated that Redar would reveal its true motive. Its stated reasons for Vice's discharge were machinated and pretextual. I am convinced that had not Vice been engaged in protected concerted activities along with Hanes, he would have continued in Respondent 's employ. The Re- spondent has not met its burden under Wright Line, supra. Moreover, the discharge of Vice, like the dis- charge of Hanes, discouraged employees from engaging in protected concerted activities for their mutual aid and protection. I find that by discharging Vice on August 24, 1987, the Respondent violated Section 8(a)(1) of the Act. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act and it will effectuate the purpose of the Act for jurisdiction to be exercised herein. 2. By unlawfully discharging Karlinda Hanes on Janu- ary 26, 1987, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3. By unlawfully discharging Terry Vice on August 24, 1987, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 32 In the letter of August 4, 1987, it was stated, "Unless you improve your performance in both respects ('rules against food in the office, hiding boards of bills'), we will have to take further steps to insure com- pliance with company rules and efficient performance of all employees' duties." There is no credible evidence that Vice repeated the alleged mis- conduct set out in the letter or engaged in any misconduct which related to his job between August 4 and 24, 1987. LANDGREBE MOTOR TRANSPORT 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I recommend that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. Having found that, although Respondent discharged Hanes on January 26, 1987, in violation of Section 8(a)(1) of the Act, it, nevertheless, would have discharged her in any event in the foreseeable future, I do not recom- mend that Hanes be reinstated , but that she be paid back- pay until she obtains substantially equivalent employ- ment, with interest in accordance with the Board's policy (see infra). Having also found that the Respondent discharged Terry Vice on August 24, 1987, in violation of Section 8(a)(1) of the Act, and has failed and refused to reinstate him in violation of Section 8(a)(1) of the Act, I recom- mend that the Respondent remedy such unlawful con- duct. In accordance with Board policy, it is recommend- ed that the Respondent offer Vice immediate and full re- instatement to his former position or, if that position no longer exists, to a substantially equivalent position, with- out prejudice to his seniority or any other rights or privi- leges previously enjoyed, dismissing, if necessary, any employees hired on or since the date of his discharge to fill the position, and make him whole for any loss of earnings he may have suffered by reason of the Respond- ent's acts herein detailed , by payment to him of a sum of money equal to the amount he would have earned from the date of his unlawful discharge to the date of a valid offer of reinstatement, less net interim earnings during such period, with interest, to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest to be computed in the manner prescribed in New Horizons for the Retarded.33 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed34 33 In accordance with the Board's decision in New Horizons for the Re- tarded, 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 U.S 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) 94 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. 1049 ORDER The Respondent, Landgrebe Motor Transport, Inc., Valparaiso, Indiana, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging or otherwise discriminating against employees who concertedly present grievances or com- pliants to the Respondent. (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 Terry Vice immediate and full reinstatement to his former job or, if that job no longer exists, to a sub- stantially equivalent position, without prejudice to his se- niority or any other rights or privileges previously en- joyed, and make him whole for any loss of earnings and other benefits suffered as a result of the discrimination against him, in the manner set forth in the remedy sec- tion of the decision and pay to Karlinda Hanes the back- pay set forth in the remedy section of this decision. (b) Remove from its files any reference to the unlawful discharges of the above-named employees and notify them in writing that this has been done and that the dis- charge will not be used against them 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 facility in Valparaiso, Indiana, copies of the attached notice marked "Appendix."35 Copies of the notice, on forms provided by the Regional Director for Region 25, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered , defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER RECOMMENDED that the complaints be dismissed insofar as they allege violations of the Act other than those found in this decision. ss 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 "