Cordin Transport, Inc.

CORDIN TRANSPORT Cordin Transport, Inc. and Richard Kozlowski. Case 7-CA-28079 August 23, 1989 DECISION AND ORDER BY MEMBERS CRACRAFT, HIGGINS, AND DEVANEY On April 18, 1989, Administrative Law Judge Elbert D. Gadsden issued the attached decision. The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings,' findings,2 and conclusions3 and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Cordin Transport, Inc., Dearborn, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the Order. ' The Respondent has excepted to some of the judge's credibility find- ings. 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 2 The judge erroneously found that Supervisor Mark Maynard, rather than Mark Chambers, did not interrogate Maynard 2In adopting the judge's finding that the Respondent violated Sec. 8(a)(1) by soliciting employee Richard Kozlowski to persuade fellow em- ployees to vote against the Union, we find the instant case to be distin- guishable from Page Avjet. Inc, 278 NLRB 444 (1986), and Gary Aircraft Corp., 190 NLRB 306 (1971), enfd in part 468 F 2d 562 (5th Cir 1972), on the basis that the solicitations here occurred under coercive circum- stances The requests were made by the Respondent's vice president in the Respondent 's front office, and were made in the context of statements that the Respondent could not afford the Union. Further, the Respondent had informed Kozlowski in April 1988 that it could make no promises while the election was pending unless the employees withdrew their union cards. In this context , the request that Kozlowski solicit employees to vote against the Union is violative Also, in agreeing with the judge 's conclusion that Respondent har- bored animus toward the union activities of its employees and that the Respondent violated Sec 8(a)(3) by discharging employee Kozlowski for engaging in union activities, we rely on the Respondent 's unlawful solici- tation of Kozlowski to urge employees to vote against the Union as evi- dence of union animus Further, we note that the Respondent discharged Kozlowski, a known union activist , only 7 days after the election Final- ly, inasmuch as we agree with the judge that the Respondent 's proffered reason for discharging Kozlowski was pretextual , we find that an 8(a)(3) violation was established under Wright Line, 251 NLRB 1083 ( 1980), enfd. 662 F2d 899 (1st Cir 1981), cert denied 455 U S 989 ( 1982) See Limestone Apparel Corp., 255 NLRB 722 ( 1981), enfd . 705 F 2d 799 (6th Cir. 1982). The General Counsel did not except to the judge's failure to find that the discharge of employee Kozlowski independently violated Sec. 8(a)(1) of the Act. 237 Richard Czubaj, Esq., for the General Counsel. Robert J. Finkel, Esq. and Jody Greenberg, Esq (Finkel, Whitefteld & Selik, P.C.), of Southfield, Michigan, for the Respondent. DECISION STATEMENT OF THE CASE ELBERT D. GADSDEN, Administrative Law Judge. The record shows that charges of unfair labor practices were filed on May 12, 1988, by Richard Kozlowski (the Charging Party), against Cordin Transport, Inc. (the Re- spondent). On behalf of the General Counsel, the Re- gional Director for Region 7 issued a complaint against the Respondent on May 12, 1988. In substance the complaint alleges that the Respondent solicited the Charging Party employee to urge his fellow employees to vote against the Union in the scheduled up- coming election; and that the Respondent coercively in- terrogated an employee about how he was going to vote in the scheduled union election, in violation of Section 8(a)(1) of the Act; and that the Respondent discriminated against the Charging Party employee by discharging him because of his concerted and union activity on behalf of and in support of fellow employees and the Union, in violation of Section 8(a)(1) and (3) of the Act. The Respondent filed an answer on June 22, 1988, de- nying that it has engaged in any unfair labor practices as alleged in the complaint. The hearing in the above matter was held before me in Detroit, Michigan, on October 6, 1988. Briefs have been received from counsel for the General Counsel and counsel for the Respondent, respectively, which have been carefully considered. On the entire record in this case and from my observa- tion of the demeanor of the witnesses, I make the follow- ing FINDINGS OF FACT I. JURISDICTION The Respondent is, and has been at all times material herein, a corporation duly organized under, and existing by virtue of, the laws of the State of Michigan. As such, Respondent has maintained its only office and place of business at 2801 Schaefer Road, Dearborn, Michigan (the Dearborn place of business). There, the Respondent en- gaged in the interstate transportation of motor vehicles. During the calendar year ending December 31, 1987, a representative period, Respondent in the course and con- duct of its business operations, derived gross revenues in excess of $50,000 for the transportation of automobiles from the State of Michigan directly to points located outside the State of Michigan. During the same period of time, the Respondent per- formed services valued in excess of $50,000 for the Ford Motor Company, which enterprise shipped goods and materials valued in excess of $50,000 from its plants lo- cated in the State of Michigan directly to customers lo- cated outside the State of Michigan. 296 NLRB No. 34 238 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The complaint alleges, the answer admits, and I find that Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that Truck Drivers Local 299, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO (the Union) is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Information Respondent , Cordin Transport, Inc., operates a truck- ing transport terminal in Dearborn, Michigan , where it is engaged in transporting motor vehicles for motor compa- nies to designations of its motor-company customers. Its largest customer is Ford Motor Company, called Ford West, which constitutes 50-60 percent of Respondent's total business operation. Respondent's terminal employees were engaged in a union organizational campaign in 1986, but after some discussion with management , they withdrew the repre- sentative petition for a union election and abandoned their organizing effort. In the spring of 1988, Respondent's terminal employ- ees again engaged in a union organizing campaign, ob- tained a representative petition for an election, and an election was in fact held on May 5, 1988. On May 12, 1988, one of the employees who was involved in both organizing campaigns was discharged by. the Respond- ent. The issues raised by the complaint and the evidence are: 1. Whether the Respondent terminated the employee because of protected concerted or union organizing ac- tivities. 2. Whether the Respondent coercively interrogated an employee the day before the election about how the em- ployee was going to vote in the election. At all times material herein , the following named per- sons occupied the positions set opposite their respective names, have been and are now supervisors of the Re- spondent, within the meaning of Section 2(11) of the Act: Robert Chambers Vice President for Marketing Mark Chambers Vice President & General Manager' B. The Union Organizing Activity of Respondent's Employees and Respondent's Reactions Thereto The undisputed facts of record show that Richard Kozlowski was employed by Respondent 5 years as a truckdriver. In 1986, Kozlowski, on behalf of fellow em- ' The uncontroverted facts set forth above are not in conflict in the record ployees, obtained union authorization cards from Local 299, distributed them to, and discussed them with, em- ployees in the office trailer and parking lot, and collected the signed cards from the employees and returned them to the Local. A petition for an election was filed. The uncontroverted testimony shows that after the representative petition was filed in 1986, Robert (Bob) Chambers, vice president for marketing and supervisor within the meaning of the Act, talked with Kozlowski and all other employees, individually and in small and large groups, on several occasions about the Union. In doing so Chambers outlined to the employees why he felt there was no need for the Teamsters Union to repre- sent the employees . He undeniably told them Respondent was not making much money because it was competing with other companies; that he could not make any deals with the employees about a raise because that would be against the law, with the representative petition for an election pending. However, truckdriver Kozlowski testified that Bob Chambers told him if the employees got their union cards back he could talk to them about a raise. Vice President Bob Chambers did not specifically deny that he made the latter statement, and I credit Kozlowski that Chambers did make that statement, not only because he did not deny it, but also because the statement is not in- consistent with Chambers' testimony that he was advised by legal counsel that he could not make promises or offer awards to employees while a petition for an elec- tion was pending; and that counsel also furnished him a 25-page document outlining what he could say and could not say to organizing employees, and directed him to have management personnel to read the document. Man- agement personnel (Bob Chambers, Mark Chambers, and Gene Anderson) read the document.2 Consequently, since Chambers told Kozlowski he could not make any promises to the employees while the representative petition was pending , Kozlowski testified that he got together with the employees and said to them why pay $26 a month to the Union, if they did not have to pay it. Thereafter he went to the union hall and told Don Smith to cancel the representative petition. Koz- lowski testified that he told Bob Chambers that he was working on having the representative petition with- drawn. When the election was called off the day before it was scheduled to be held, Kozlowski said Bob Cham- bers knew he was responsible for having the petition withdrawn, and he might have told Bob Chambers he was the one responsible for withdrawing it. Thereafter, Kozlowski said whenever Bob Chambers talked to the employees about a requested raise, Chambers would give them the "the hard luck story of how broke Respondent was" and that it could not afford to compete with other trucking companies. 2 1 was persuaded by the demeanor and testimony of Bob Chambers that he was legally advised by legal counsel and that he did comply with the legal advice given to him . For this reason I do not credit the uncor- roborated testimony of Kozlowski that Mark Chambers told him if the employees brought in the Union, Respondent would close up the busi- ness. I am not persuaded that Chambers would have blatantly disregard- ed the advice of legal counsel by stating he would close down the busi- ness if the employees unionized the Respondent. CORDIN TRANSPORT In February 1988, Kozlowski again went to the union hall of Local 299 and talked with Don Smith, who gave him union authorization cards . Kozlowski distributed the cards to employees and all of them signed a card and re- turned it to him. He, in turn, returned all of the signed cards to the Local (Don Smith). Kozlowski said 2 or 3 weeks thereafter, and before the representative petition was filed, Supervisor Mark Chambers came to him and said "your buddy Don Smith called from the union hall." Kozlowski said he told Mark Chambers he knew as early as 30 days before that the Union was coming in. The undisputed evidence further shows that around Good Friday in April 1988 , Kozlowski called Supervisor Bob Chambers and requested to see him. Chambers told him to come to the office . When Kozlowski arrived he presented a list of requested benefits and privileges the employees had asked him the night before to present to management, which request they felt could be included in a contract with the Respondent and the employees would not have to unionize. The list included such things as seniority, installation of a timeclock , pensions, better insurance, a request that none of the employees be fired for filing the petition , and that employees have em- ployee representation whenever they are being disci- plined. Kozlowski personally requested that Respondent deduct $1 .55 from his check and put it in an IRA ac- count for him. Bob Chambers told Kozlowski it was not lawful for him to talk (negotiate) with the employees while a union election was pending ; that he could not promise them anything while the election was pending unless the employees withdraw their union cards. Koz- lowski told Chambers he would talk to the employees. Kozlowski said he told the employees what Bob Chambers had said, and they said no way were they going to withdraw their union cards . He further testified that prior to the union activity of the employees, Re- spondent met with the employees occasionally , such as when there was damage or an emergency . However, the record evidence shows that prior to the 1988 election, Respondent undeniably met with employees every Monday. Kozlowski testified that prior to the election on May 5, 1988, whenever he was getting off, his supervi- sor, Gene Anderson, would frequently tell him Bob Chambers wants to see you. When he would go to the front office of the trailer , he said Bob Chambers would tell him Respondent could not afford the Union because the Respondent was underbidding its competitors; that Bob Chambers would also ask him to talk to the men and see what he could do to help Respondent ; and that Chambers would tell him he had a lot of faith in him and was depending on him to talk to the men about joining the Union. Kozlowski further testified that on the day before the Union election (May 4, 1988), Bob Chambers asked him how was he doing with the guys, and he said "Bob, you got 10 no votes," and Kozlowski "did what he could do." Kozlowski served as an observer for the Union on the day of the election (May 5, 1988). The parties stipu- lated that the ballot tally showed that of 17 eligible voters, 9 voted for the Union, 4 against the Union, and there were 4 challenged ballots. 239 Conclusion The foregoing evidence is uncontroverted that after the representative petition was filed in 1986, Supervisor Robert (Bob) Chambers told Kozlowski and other em- ployees, individually and in groups, that they did not need to be represented by the Union ; that he could not negotiate with them while the election was pending, but if they rescinded their union authorization cards he could negotiate with them ; that Kozlowski thereafter had the 1986 representative petition withdrawn , but since Cham- bers maintained that he could not afford to give the em- ployees a raise and remain competitive in the business, Kozlowski obtained new signed authorization cards from the employees in 1988 , and gave them to the Union; that a few weeks later, Supervisor Mark Chambers told him, "your buddy Don Smith called from the Union Hall"; that around Good Friday 1988, Bob Chambers met with Kozlowski and discussed a list of benefits requested by Kozlowski and the other employees; that Bob Chambers told Kozlowski he could not promise them anything unless the employees rescinded their union authorization; that when Kozlowski told the employees what Bob Chambers said, they refused to rescind their union au- thorization; and that although Bob Chambers denied he asked Kozlowski to see if he could persuade the employ- ees to vote against the Union , and thereafter asked Koz- lowski how was he doing in that regard, I was persuaded by the demeanor of both witnesses, the frequent one-on- one discussions between them, as well as the circumstan- tial evidence of record, that Kozlowski's testimony was truthful and Bob Chambers' denials were not. These fac- tors also make it clear that although management was complying with legal advice in many respects , the evi- dence strongly suggests it trusted Kozlowski a little, since it knew he was instrumental in having the first peti- tion withdrawn. Based on the foregoing credited evidence , I conclude and find that to the extent that Respondent (Bob Cham- bers) solicited Kozlowski to urge his fellow employees to vote against the Union , Respondent coerced its employ- ees in the exercise of their protected Section 7 rights, in violation of Section 8(a)(1) of the Act. I further find that Kozlowski and his fellow employees engaged in union organizing campaigns in 1986, and again in the spring of 1988; that the Respondent (Bob Chambers and Mark Chambers) had knowledge of the employee's union activity, and particularly, the leader- ship union and concerted activity of Richard Kozlowski, on behalf of his fellow employees in 1986, as well as 1988. Antiunion Campaign Kozlowski testified that prior to the election Mark Chambers posted some negative newspaper clippings on the wall about union officials going to jail for stealing from the Union; that union members were paying gang- sters, and that one unionized trucking enterprise (plant) closed. Bob Chambers acknowledged he engaged in an antiunion campaign within the realm of what he could legally do, and in accordance with advise from his legal counsel . He acknowledged he posted cartoons and litera- 240 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ture on the wall regarding plant closures, a strike by a union, or where an employee was out of work if he did not join the union. General Counsel's Exhibit 4 supports the testimony of Supervisor Bob Chambers. Chambers acknowledged he had conversations with Kozlowski and other employees, individually and in groups, prior to the 1988 election, during which time he explained to them why management felt it did not need a union, and how important it was for the employees and management to work together as a team-one big family. He told them he could not make any promises because it was unlawful for him to do so. However, Bob Chambers denied he ever asked Kozlowski how he was going to vote in the union election or how did it look, or what were the guys going to do. Bob Chambers also testified that he did not recall whether he referred to employees who supported the Union (Local 299) as disgruntled employees. However, after his recollection was refreshed with his affidavit, he said he stated in a letter to employees that "some slick union salesmen with the help of one or two disgruntled employees have been trying to discredit Cordin and sell you a bag of empty union promises." When asked who were the disgruntled employees , he said, "I had no idea who was disgruntled or who was not ." He said he "did not have any one or two people in mind . . . but stated there was a union sales person with one or two disgrun- tled employees trying to discredit the Company by unionizing it." On further examination Chambers admitted he was not in favor of unionization of the Company; that the Com- pany campaigned against it, and did not want the Union representing the employees . He acknowledged he has had previous experience with unions and particularly this Union, but once the Union was in, he said he did not have any problem bargaining with it and he would comply with his obligation to do so. Conclusions Based on the above essentially undisputed and credited evidence, I conclude and find that Respondent manifest- ed union animus in its antiunion campaign in the follow- ing respects : Telling Kozlowski his "buddy Don Smith called from the Union Hall," when the record does not show that Smith was Kozlowski's buddy; asking Koz- lowski to persuade his fellow workers to vote against the Union; Respondent's acknowledgment that it was op- posed to the Union and that it posted literature on the wall about unfavorable experiences of unionization; and Mr. Bob Chambers' acknowledgment that he referred to employees who supported the Union as disgruntled em- ployees who worked with slick union salesmen to dis- credit the Respondent, when the evidence fails to show that any employees were trying to discredit Respondent by organizing the Union. C. Did Respondent Interrogate Employee Lucian Maynard the Day Before the Election About How He Felt About the Union and How Was He Going to Vote? Richie Pate testified that while at work about 10:30 or 11:00 a.m., on May 4, 1988, the day before the election, Bob Chambers spoke to him about the election. Bob Chambers admitted he talked to Maynard and other em- ployees about the election but denied he talked to them the day before the election (May 5, 1988). Lucian Maynard worked for the Respondent for 3 months until he was fired May 5, 1988. He testified that on a Wednesday in late April 1988, he came to the termi- nal a day earlier to pickup his check. When he went to the office of Bob Chambers, where Mark Chambers had his check, Mark Chambers asked him how he felt about the Union and how was he going to vote in the upcom- ing election. Maynard said he told Mark Chambers he did not have to tell him how he was going to vote, but he ultimately told Mark Chambers he was going to vote against the Union. Mark Chambers denied he asked May- nard such questions about the Union and the election. Maynard further testified that he was at work the day before the election (May 4, 1988) and while moving cars around, Bob Chambers approached him and told him "you know, the Union don't care about young guys," trying to persuade him to vote against the Union. Bob Chambers first denied he had such a conversation with Maynard because he said he was out of town on May 4, 1988. However, when he was recalled to the stand, he said he was out of town either Tuesday, May 3 or Wednesday, May 4, he was not sure. When asked did he have a conversation with Richie Pate about the Union on Tuesday, Wednesday, or Thurs- day before the election, Bob Chambers said: I can't tell you sitting here that 1 had a specific con- versation with anyone of the individual employees. I, throughout the weeks before the election I had conversations with employees. If he is saying that I had a conversation on May 2rd, then may be his memory is better than mine . I can't tell you I didn't have that conversation . I'm sure I talked to Mr. Pate within a week before the election occurred. Conclusions on the Interrogation of Lucian Maynard Although Lucian Maynard testified that in late April 1988, Supervisor Mark Chambers asked him how he felt about the Union and how was he going to vote in the upcoming election, I was not persuaded that Maynard was testifying truthfully. I was persuaded that Mark Chambers was at the terminal on May 4 , I was not per- suaded by Maynard's demeanor nor by his uncorroborat- ed testimony that he was telling the truth about Mark asking him how he felt about the Union and how was he going to vote. Mark Chambers denied he asked such questions of Maynard and I was persuaded not only by his demeanor that he was telling the truth , but also by the fact that management personnel were advised by legal counsel about what they could or could not say to CORDIN TRANSPORT employees pending the union election . Although the Re- spondent was opposed to unionization of its terminal, I find it difficult to believe that in spite of professional legal advice, management, two brothers, would have so blatantly violated that advice against their best interest. Also, Maynard was not particularly trusted and sought after by management for his influential leadership with the employees, as was Kozlowski. Aside from Respond- ent soliciting Kozlowski to urge employees to vote against the Union, Respondent appears to have complied substantially with the legal advice of its counsel. At least, the credited evidence of record shows that it tried to conduct an antiunion campaign within the limits of the law, about which they were advised about not making statements or asking questions which were obviously in violation of the Act. Moreover, Maynard was fired by the Respondent after the election and the nature and cause of his discharge are not at issue in this proceeding. However, Maynard, as perhaps any employee who is fired, would probably not favor the employer, in all probability, and would be more susceptible to testifying against the interest of the Respondent. I therefore find that Supervisor Mark Chambers did not interrogate Maynard about how he felt about the Union and how was he going to vote in the election. Ac- cordingly, in so far as the complaint alleges that Re- spondent so interrogated Maynard, such allegation is dis- missed. D. Respondent's Discharge of Richard Kozlowski On May 11 , 1988, 6 days after the election on May 5, 1988, Kozlowski parked his truck and was approached by fellow employees Richard Pate and Reggie Ham- mond . They told him Supervisor Mark Chambers was outside telling inspector Richard Poulson that Respond- ent was going to close down in 2 weeks . Richard Poul- son is not employed by Respondent, but is assigned to Respondent's terminal. Kozlowski testified that he went to Poulson and asked him how did he learn what he told Pate and Hammond . Poulson said he was telling Mark Chambers he was going to California to work, and Mark said, "Well, it don't matter because we're gonna close down in two weeks anyway." Poulson denied he ever told Kozlowski Cordin was closing down or that Mark Chambers had so advised him. However, he said Mark Chambers did tell him "business was slow on a day-by-day basis; that we could all take a day off and probably stay off a couple of weeks and go fishing and it wouldn 't hurt nothing." Poulson further testified without dispute that about 6 or 7 weeks before Kozlowski was discharged, he did tell Kozlowski he had heard from other people in the yard (security guards) who was asking him what jobsite he would be going to, or was he going to be laid off be- cause Cordin Transport was closing down. About 3 weeks before Kozlowski was discharged , Poulson said Richard Pate asked him did he hear that Cordin was closing down and he told Pate he guessed it did not matter because he would be assigned somewhere else re- gardless, but Cordin certainly put a lot of money into the terminal, to turn around and close it down for nothing. 241 Although there are discrepancies in the testimonial ac- counts of Poulson versus Kozlowski and Pate, it is at least clear that Kozlowski had learned from Poulson that there was a fairly widespread rumor at the terminal that Cordin Transport was closing down in 2 weeks. Al- though Poulson denied he received his information about the rumor from Mark Chambers, I am persuaded that it may be reasonably inferred from Poulson's independent inspector's position that he did inform Kozlowski and Pate that he had heard from reliable sources that Cordin Transport was closing down in 2 weeks. This position is supported by the fact that Poulson acknowledged he had heard the rumor from terminal guards. Kozlowski told Reggie Hammond he was going to find out if Respondent was really going to close down. So Kozlowski got into his truck and went to Ford Motor Company where he testified he knew they needed a man for work. When Kozlowski arrived at the Ford Company, he said he asked clerk Amelio in the presence of Ruby Thompson, dispatcher for Ford Motor drivers, had he heard anything about Cordin Transport closing up in 2 weeks. Amelio and Ruby asked him why and he told them what Mark Chambers ' reportedly told Poul- son, and Poulson told himself, Hammond, and Pate. Amelio said, "well, we didn't hear anything about it." Kozlowski asked them about a job and then proceeded to load his truck and prepared to return to the terminal yard. Meanwhile, while Kozlowski was loading his truck or before he returned to the terminal, Respondent's terminal manager, Gene Anderson , testified he had occasion to be at Ford West to do paper work shortly after Kozlowski left the Ford office. When he (Anderson) entered Ford's office, he said he was approached by Ford representative Craig Woods, Ruby Thompson, and Jerry Miglio, a yard person. These are people with whom Anderson says he frequently works, and while he was there , Craig Woods said, "I heard Cordin Transport would be closing up in two weeks." When he asked Woods what did he say, Woods repeated the statement and Ruby Thompson con- firmed she had heard the same thing . Anderson said he told them that was news to him and Miglio further con- firmed they had heard the same thing. Anderson said he asked Woods from whom did he hear such information, and Woods said from one of Cordin's truckdrivers, but he refused to identify the driver. Kozlowski said when he returned to the terminal Mark Chambers came out screaming , asking him did he say anything over at Ford about Cordin closing down. Koz- lowski said , "Yes, I asked about a job, and I ask them if Cordin was closing down." Kozlowski was then instruct- ed by Anderson and Chambers not to talk to any person- nel at Ford West when he returned there that afternoon. He was advised to ignore everybody , get his paperwork, load up, and return to the terminal . Kozlowski complied with the order. When Kozlowski returned to the terminal, Mark Chambers spoke with him. According to Mark Cham- bers, Kozlowski admitted that he told Ford people that Cordin Transport was closing down in 2 weeks. Howev- er, Kozlowski testified that he asked the Ford people 242 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD had they heard that Cordin Transport was closing down in 2 weeks. I do not deem it very significant for my pur- poses whether Kozlowski asked the Ford people had they heard Cordin Transport was closing down or whether he stated that Cordin Transport was closing down. However, I am persuaded by the fact that Koz- lowski and his fellow employees did not know, as a matter of fact, whether Cordin was closing down and were earnestly interested in finding out whether the well established rumor they had heard was a fact . On this basis, I am persuaded that Kozlowski asked the Ford people whether they had heard that Cordin Transport was closing down . Assuming he stated Cordin was clos- ing down, it is probable that he did so as a tactical matter, to elicit a reaction from the Ford people, since he (Kozlowski) did not know whether the rumor was true, and was earnestly trying to learn whether or not it was true. Nevertheless, Mark Chambers said he asked Koz- lowski how "in the hell" could he go to Cordin's main customer (Ford Motor Company) and jeopardize his (Kozlowski's) job, his son's job, office staff, management, and hourly employees by telling Ford people that Cordin was closing down. Chambers said Kozlowski told him he had heard the rumor from other truckdrivers but did not identify Poulson as the source of his information. When their conference was over and Kozlowski went home for the day, Mark Chambers said he called Woods and Ruby Thompson at Ford, and both of them verified that Koz- lowski had told them Cordin Transport was closing down in 2 weeks. Later that day (May 11, 1988), Mark Chambers said he talked with Jerry Clark at Ford and assured him that Cordin Transport was not closing down . Thereafter, he said he talked with legal counsel, Finkle, and told him what Kozlowski had done, and explained to him how he wanted to terminate Kozlowski . Finkle agreed and Chambers prepared the discharge notice for Kozlowski. He said Bob Chambers was out of town at the time. Mark Chambers further testified that he had never told Kozlowski or anyone , nor had he ever heard any member of management tell anyone that Cordin Trans- port was closing down. In fact, he testified that prior to May 1988 Cordin purchased a new over-the-road 1987 rig, and the Respondent had just built a 60- by 40-foot building in February at a cost of $ 17,000. Respondent had also established a price with a trailer company to en- large its office staff trailer, and had just spent $5625 on fence improvement . He further testified that union activi- ty had nothing to do with the discharge of Kozlowski and that his only reason for firing him on May 12 was for spreading false and malicious damaging information to his primary customer, Ford Motor Company, which Company constitutes 50 to 60 percent of Respondent's business. He said when he gave Kozlowski the notice of termination, Kozlowski called him "a son-of-a-bitch" for causing him to drive all the way into the terminal to dis- charge him. Based on the foregoing evidence and reasons, I find that Respondent (Mark Chambers) did not ask Maynard how he felt about the Union and how he was going to vote in the upcoming election. Analysis and Conclusions The principal issues presented for determination are: 1. Whether Respondent (Bob Chambers) coerced Richard Kozlowski in the exercise of his protected rights by soliciting him to urge fellow employees to vote against the Union. As previously found under section B , supra, Respond- ent violated Section 8 (a)(1) of the Act in this regard. 2. Did Respondent discharge employee Richard Koz- lowski because of his concerted union activity on behalf of the Union? Respondent's Discharge of Kozlowski As to whether Respondent discharged Kozlowski be- cause of his activities on behalf of the Union, the evi- dence of record substantiates that Respondent not only knew that Kozlowski was involved in both union cam- paigns, but it also knew he was an influential organizing leader in both the 1986 and 1988 campaigns. Thus, the record is replete with evidence that Respondent had knowledge of Kozlowski's concerted and union activities in April and May 1988. The union election, in which the Union was victori- ous, was held on May 5, 1988. Six days later, on May 11, 1988, employees Richie Pate, Reggie Hammond, and Richard Kozlowski learned from Inspector Gerald Poul- son that Respondent was closing its business in 2 weeks. Poulson was not a part of Respondent's management, but an employee of Intermodal Technical Services (ITS) as- signed to Respondent's terminal to inspect incoming and outgoing cargo for damage . In this capacity, Poulson was independent of Respondent's supervision but appar- ently he talked with or collaborated with management to an extent in performing his job . While the truth of what Poulson told the employees may not have been fact, it was not unreasonable for Kozlowski and his fellow em- ployees to be considerably curious about the authenticity of what they had heard , since it related to their job secu- rity. Under the circumstances, it does not appear unreason- able for Kozlowski, on behalf of himself and fellow em- ployees, to have made an effort to ascertain whether the rumor they had heard about Respondent's closing was authentic. Although Kozlowski selected Respondent's major customer to ask whether it had heard that Re- spondent was closing, the evidence of record is clear that his sole motive for asking the question represented an earnest effort on his part to learn whether the rumor was true and not to disparage Respondent's business. Since the rumor, if true, would have adversely affected work- ing conditions of the employees, the inquiry by Koz- lowski constituted protected concerted or union activity. The record is also barren of any evidence that Koz- lowski's question or even if he made it as a statement to the Ford personnel was motivated by malice, or in anyway designed to be disloyal to Respondent, or to un- fairly disparage Respondent's business with the Ford Motor Company. It is therefore clear that Kozlowski's inquiry to Respondent's customer, the Ford Motor Com- pany, was protected activity. The law is well settled that if an employee's inquiry or statements to a customer of CORDIN TRANSPORT the employer dealt with working conditions, as was the case with Kozlowski's inquiry or statement here, the in- quiry or statement is protected concerted activity. NLRB v. Electrical Workers Local 1229, 346 U.S. 464 (1953); Allied Aviation Service Co. of New Jersey, 248 NLRB 229 (1980); and Taylor Business Services, 256 NLRB 567 (1981). It is also well established by law that an employee's protected activity does not lose its protection of the Act unless the manner in which the conduct of the employee was expressed renders it unprotected . Mere inaccuracy or incorrect perception of working conditions by the em- ployee is not a sufficient reason to remove the activity from protection of the Act. R. J. Liberto, Inc., 235 NLRB 1450, 1453 (1978). Nor does an employee 's other- wise protected communication to an employer's custom- er forfeit protection of the Act simply because a part of the communication might embarrass the employer, or be- cause the employer may dislike the employee 's choice of forum, unless the employee's communication constitutes disparagement or vilification deliberately intended to impugn the employer's operation. Allied Aviation Service, supra; Community Hospital of Roanoke Valley, 220 NLRB 217, 223 (1975). In the instant case, the evidence does not show that Kozlowski's communication with the Ford Motor Company personnel manifested any intent or motive to disparage or impugn the Respondent 's oper- ation. Additionally, the truth or falsity of the employee's communication is not material to a determination as to whether the communication constituted disparagement to the employer's operation . Patterson-Sargent Co., 115 NLRB 1627, 1629 (1956). In the instant case, not only does the evidence fail to show that Kozlowski's commu- nication to the Ford Company personnel caused dispar- agement to Respondent's operation, but in fact, the evi- dence affirmatively shows that Kozlowski's communica- tion did not cause any disparagement to Respondent's operation, because Respondent called Ford Motor offi- cials a few hours later, and assured them Respondent was not going out of business. Consequently, although the Respondent contends it discharged Kozlowski on May 12, 1988, for spreading false, malicious, and damaging information to its primary customer, the evidence of record fails to support this contention. In fact, it is without question here that Koz- lowski's communication to the Ford Company was in good faith and was not maliciously uttered , or uttered to vilify Respondent's operation. Certainly his communica- tion did not result in any damage to the Respondent's operations. Respondent's attempt to analogize Kozlowski's com- munication to the Ford Company with a communication by another employee to one of Respondent's customers 3 years ago is without merit . Respondent's contention is an impractical exaggeration of the facts and the results here, with the facts and the probable results in the prior case by another former employee . It is therefore clear that Respondent's contended reason for discharging Koz- lowski is a mere pretext to conceal its real reason for dis- charging him, Kozlowski's activities on behalf of the Union. Delta Gas, Inc., 250 NLRB 168 (1987); Louisiana 243 Council 17, State County Employees AFSCME, 250 NLRB 880 ( 1980); and American Ship Building Co., 380 U.S. 300, 311 (1965). The evidence of record does not show that Kozlowski would have been discharged by the Respondent, even in the absence of his union activity. Consequently, I do not find Wright Line, 251 NLRB 1083 ( 1980), applicable to the facts in the instant case. IV. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I will recommend that it be or- dered to cease and desist from and that it take certain af- firmative actions designed to effectuate the policies of the Act. Having found that Respondent violated Section 8(a)(1) of the Act by soliciting the Charging Party to urge fellow employees to vote against the Union , the Re- spondent has interfered with, restrained , and coerced its employees in the exercise their rights guaranteed in S - tion 7 of the Act; and that by discriminatorily termi st- ing the employment of the Charging Party because o his activity on behalf of the Union, the Respondent violated Section 8(a)(3) of the Act, the recommended Order= will provided that it cease and desist from engaging in s\ch unlawful conduct ; and that it make Richard Kozlowski whole for any loss of earnings he may have suffered within the meaning and within accord with the Board's decisions in F. W. Woolworth Co., 90 NLRB 289 (1950), New Horizons for the Retarded, 283 NLRB 1173 (1987),3 except as specifically modified by the wording of such recommended Order. On the basis of the above findings of fact and the entire record in this case,• I make the following CONCLUSIONS OF LAW 1. By soliciting an employee to urge fellow employees to vote against the Union, the Respondent restrained and coerced employees in the exercise of their protected rights, in violation of Section 8(a)(1) of the Act. 2. By terminating the employment of the Charging Party because of his activities on behalf of the Union, the Respondent discriminated in regard to hire and tenure of employment of employees , in violation of Section 8(a)(3) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed4 ORDER The Respondent, Cordin Transport, Inc., Dearborn, Michigan, its officers, agents, successors, and assigns, shall 1. Cease and desist from 8 See generally Isis Plumbing Co, 138 NLRB 716 (1962). 4 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 244 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (a) Interfering with, restraining, or coercing its em- ployees in the exercise of their protected rights by solic- iting them to urge fellow employees to vote against the Union. (b) Discriminating against the hire, tenure, or terms or conditions of employment of employees , by discrimina- torily terminating their employment because of their ac- tivities on behalf of the Union. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Recall and offer to reinstate Richard Kozlowski to his former position or, if such position no longer exists, to a substantially equivalent position without prejudice to his seniority or other rights previously enjoyed, and make him whole for any loss of pay suffered by reason of the discrimination against him, with interest, in the manner described in the remedy section of this decision. (b) Remove from its files any reference to the unlawful discharge and notify the employee in writing that this has been done and that the discharge will not be used against him in any way. (c) Preserve and, on request, make available to the Board or its agent, for examination and copying all pay- roll records, social security payment records , time cards, personal records and reports, and all other records neces- sary to analyze the amount of backpay due under this Order. (d) Post at Respondent's office and place of business located at 2801 Schaefer, Dearborn, Michigan, the at- tached Notice marked "Appendix."5 Copies of said notice on forms provided by the Regional Director for Region 7, after being signed by Respondent's authorized representative, shall be posted by it immediately upon re- ceipt, and maintained by Respondent for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notice is not altered, defaced, or covered by any other material. 5 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." (e) Notify the Regional Director in writing within 20 days from the date of this Order, what steps Respondent has taken to comply. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT interfere with, restrain , or coerce our employees in the exercise of their protected rights by so- liciting them to urge fellow employees to vote against the Union. WE WILL NOT discriminate against the hire, tenure or terms or conditions of employment of employees , by dis- criminatorily terminating their employment because of their activities on behalf of the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed by Section 7 of the Act. WE WILL recall and offer to reinstate Richard Koz- lowski to his former position, or if such position no longer exists, to a substantially equivalent position with- out prejudice to his seniority or other rights previously enjoyed, and make him whole for any loss of pay suf- fered by reason of our discrimination against him, with interest. WE WILL notify Richard Kozlowski in writing that we have removed from our files any reference to his unlaw- ful discharge and that the discharge will not be used against him in any. CORDIN TRANSPORT, INC.