Carter's Rental

National Labor Relations Board - Board Decisions

Jun 30, 1980

250 N.L.R.B. 333 (N.L.R.B. 1980)

CARTER'S RENTAL
Carter's of California, Inc., d/b/a Carter's Rental
and International Association of Machinists and
Aerospace Workers, AFL-CIO, District Lodge
No. 190, Local Lodge No. 1546. Cases 32-CA-
199, 32-CA-352, and 32-CA-727
June 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
On February 5, 1980, Administrative Law Judge
Richard J. Boyce issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and
to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Carter of Cali-
fornia, Inc., d/b/a Carter's Rental, Berkeley, Oak-
land, and San Pablo, California, its officers, agents,
successors, and assigns, shall take the action set
forth in the said recommended Order.
DECISION
I STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge: This
matter was heard before me in Oakland, California, on
February 27, and March 5-9 and 19-20, 1979.' The un-
derlying complaint 2 issued on April 28, 1978, was
amended during the hearing, and alleges that Carter of
California, Inc. d/b/a Carter's Rental (herein Respond-
ent) had committed certain violations of Section 8(a)(3)
and (1) of the National Labor Relations Act as amended.
The complaint arose from charges filed by Internation-
al Association of Machinists and Aerospace Workers,
AFL-CIO, District Lodge No. 190, Local Lodge No.
1546 (herein IAM) on April 13, 1977, August 29, 1977,
and February 17, 1978.
This matter was heard in consolidation with a backpay mailer in
Cases 32-CA-78 and 32-CA-96 A separate supplemental decision. deal-
ing with the backpay mailer, alo issued Ihis dale
Cases 32-CA-199 and 32 CA-352 foirmerly were Cases 20-CA-
12746 and Case 20-CA-13334. respcctiiely
250 NLRB No. 53
FINI)IN(S OF FACI
I. THFE BUSINESS 1OF RSPONI)ENIF
Respondent is a California corporation engaged in the
rental of tools and sundry other items at locations in
Berkeley, Oakland, and San Pablo, California. Its annual
revenues exceed $500,000, and it annually brings into
California goods of a value in excess of $5,000. It is un-
disputed that Respondent is an employer engaged in
commerce within the meaning Section 2(2), (6), and (7)
of the Act.
11. THE I.ABOR ORGANIZATIONS
It is undisputed that IAM and International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (herein IBT), are labor organizations
within the meaning of Section 2(5) of the Act.
Ill. ISSL .S
The complaint alleges that Respondent violated Sec-
tion 8(a)(1) and (3) of the Act by issuing "numerous and
frequent warning notices" to returning strikers between
October 1976 and February 1978, by discharging six em-
ployees-Walter Freeman, Richard Mead, James
Morgan, Janice Browne Tucker. Alfred Walker, and
Kimberly Westbrook-on various dates from November
1976 to February 1978, by constructively discharging
Coleen Hogle in September 1977, and by suspending
Alfred Walker for I week in September 1977.
The answer denies any wrongdoing.
IV. BACKGROUND
Some 25 of Respondent's employees struck from April
8 to May 6, 1976. Respondent began reinstating strikers
in August 1976, continuing to do so into January 1977.
In all, 15 were reinstated. By mid-February 1978, howev-
er, none remained. Among those reinstated and then sep-
arated are the seven discriminatees herein.
In settlement of charges filed in part over Respond-
ent's failure to reinstate the strikers as of the end of the
strike, Respondent entered into a settlement stipulation
on October 13, 1976, agreeing to offer reinstatement to
them and to make them whole for earnings lost by
reason of its failure to reinstate them on May 6. Else-
where in the stipulation, Respondent acknowledged that
IAM and IBT, jointly, had become the bargaining repre-
sentative of the customer service and plant clerical em-
ployees at Respondent's three rental locations on April
21, 1976, and that IAM had become the representative of
the office clerical employees at Respondent's Berkeley
headquarters on May 6, 1976. The stipulation was adopt-
ed by order of the Board on December 21, 1976, and the
order was enforced by a judgment of the Ninth Circuit
Court of Appeals on March 11, 1977.3
A bargaining agreement between Respondent and the
two Unions eventually was entered into on November I,
' The hackpay matler nlcllllenoed :lose iill I i iconcerlned with Re-
spoldent's obligatliol under Ihe makc-u hole porlion or the slipulalionl. as
adopted hy the Board and enlfirced h: the courl
33
I)CISIO()NS ()F NATIO()NAlI At()OR R I.AI I()NS BO()ARD
1977, effective from October 1, 1977, to October 1, 1978,
covering both units.
V. IHI: WARNIN(G NOIICI.S
A. Fbct.
Respondent admittedly ran a "loose ship" before the
strike, with few warnings given and with no system of
written warnings. A new system supposedly was institut-
ed in April 1976, coincident with the first hiring of strik-
er replacements, The immediate effect, if such was the
case, was not dramatic. From April through September
1976, the monthly number of written warnings ranged
from none in May to five in August. In September, for
the first time, a written warning issued to a reinstated
striker, as against two to striker replacements.
In October, the situation changed markedly, with
seven written warnings issuing to three ex-strikers (out of
five on the payroll at some time during the month), 4 and
eight issuing to four striker replacements (out of an un-
disclosed but manifestly larger group of replacements on
the payroll during the month). ' In November, 17 warn-
ings issued to 4 ex-strikers (out of 4 on the payroll at
some time during the month), while 6 issued to 4 re-
placements; and, in December, 28 issued to 8 ex-strikers
(out of 11 on the payroll at some time during the
month), as against I spread among the replacements.
In January 1977, 7 ex-strikers (out of 10 still on the
payroll) received a total of 17 warnings, and 8 replace-
ments received a total of 14. In February, 6 ex-strikers
(out of 9 on the payroll) received a total of eight warn-
ings, while 5 replacements received 11. Warnings contin-
ued to issue thereafter, but the flurry had largely subsid-
ed. Only one ex-striker, Alfred Walker, remained on the
payroll after September 8, 1977, and he continued to re-
ceive warnings from time to time until his discharge on
February 12, 1978.
Robert Berg credibly testified that, upon becoming as-
sistant manager at San Pablo in October 1976, he was
told by Fred Carter, Respondent's president, to "be hard
on" the returning strikers, Carter elaborating that, the
more writeups they received, the faster Respondent
would be able to fire them. Carter cautioned, however,
that it would be necessary to write up nonstrikers, as
well, "to make the books look good," adding that he
"would make sure that" such writeups did not remain in
the nonstrikers' files.
Berg estimated that 85 to 90 percent of the writeups
"were not justified." A number of those placed in the
files of the discriminatees, described later, reveal that
pettiness indeed was the order of the day.
B. Conclusion
It is concluded that the system of written warnings, as
implemented from October 1976 until there no longer
were any ex-strikers on the payroll in February 1978,
was designed to discriminate against the ex-strikers, and
4 T,,o cx-strikcrs werce rcinslaiOcd ill Augu"I , tAo ill SeplItnhctr. oll ill
O()loher. iioncL ill Nosetnihcr. l iin inl De)CLnhr. Lii lll el ill Jililil:lrs
h Respindlcn en ploycd 28 sirikcr replacement,l i ll o llC ltll c or . llr0iheLr
that it consequently violated Section 8(a)(3) and (I) as al-
leged.
While Respondent professes to have changed its warn-
ing procedure in April 1976, it is plain that the change
became an operational reality in October, with the issu-
ance of an unprecedentedly large number of warnings in
that and succeeding months. It also is plain that the
change was calculated to harass and provide "grounds"
for discharging the ex-strikers. Not only did it coincide,
more or less, with their return to the payroll in signifi-
cant numbers but, as Berg credibly testified, Carter gave
out the instruction in October to "be hard on" the ex-
strikers on the theory that, the more writeups they re-
ceived, the faster they could be fired. The ex-strikers re-
ceived a discrepant proportion of warnings, as well,
which doubtless would have been even more marked but
for Carter's admonition that some be issued to non-
strikers, too, "to make the books look good"; i.e., to dis-
guise the discriminatory scheme.
VL. I I.i AC IUAI I)ISCHIAR(.i.S
A. Walter Freeman
Facts: Freeman was reinstated on September 2, 1976
then discharged on November 6. He was an assistant
manager at Berkeley when the strike began, and was
made a yardman/counterman at that location upon rein-
statement, being restored to his prestrike status about a
month later'i
The record contains a written termination notice,
signed by Mel Healey, Respondent's vice president,
which explains Freeman's discharge this way:
Walt Freeman came in the yard after closing &
took $35.00 for personal use. He should not have
been in the yard. He should not have taken compa-
ny money.
None of Respondent's officials having testified con-
cerning the discharge, there is only Freeman's testimony
of the surrounding circumstances. It was persuasive and
is credited. He admittedly took the money, elaborating
that he asked the Berkeley manager, Mike Privatte, on
November 4, if he could borrow $35 from the safe; that
Privatte said "sure," provided it was returned by the fol-
lowing Monday, November 8, and that he in fact re-
turned it on November 5 notifying Privatte at the time.
Freeman's story continued that he was asked by
Healey on November 6 if he had borrowed the money.
He said that he had, whereupon Healey asked why he
had not obtained approval from Fred Carter or him.
Freeman replied that, neither being around, he had
cleared with Privatte. Healey countered that Carter or
he could have been called at home; and that, since nei-
ther was, Freeman was being fired.
Freeman had borrowed money--not over $7-from
the safe "once or twice" before the strike, without ad-
verse consequence. He then had left an "IOU" in the
safe, which he did not do at the time in question. The
i A, Is .onc ilul id t ill e Ct i r aplli nll hijLkpa.l dCcision of' this cillt.
lIw usxtcr. F reliLiii Ii',c r iNa paid ii ai proper level aaier rcinstatemClnt
CARTER'S RENTAL.
termination notice to the contrary, Freeman is credited
that he did not enter after closing to get the money.
About a month after his reinstatement, Freeman was
asked by Carter if "the striking employees really thought
that they could come back after walking out on strike."
Freeman answered that he thought so, prompting Carter
to ask what led him to believe that. Freeman replied that
the NLRB and the Union said so, to which Carter de-
clared: "That [is] a bunch of malarkey." Carter then said
he would not take back some of the strikers "under any
conditions," and that he "could drag this thing out for
10 years or longer"- "I can just keep appealing it."
Freeman's personnel file contained four written warn-
ings postdating his reinstatement, none of which he had
seen. They report his being warned "to keep safe monies
at a proper level," "not to punch timecard in early or to
stay late if not authorized," "to work yard and not stay
behind the counter," and "to answer phone on at least
3rd ring-we are losing customers."
The California Employment Development determined
that Freeman was not entitled to unemployment benefits
following his discharge, giving this as its reason:
You were discharged when it was shown beyond a
reasonable doubt that you took money from your
employer for your own use. Under those circum-
stances, it must be held that you were discharged
for actions which injured your employer's interests.
Conclusion: It is concluded that Freeman's discharge
was in retribution for his striking, and that it consequent-
ly violated Section 8(a)(3) and (1) as alleged.
This conclusion follows from Carter's unremitting
animus toward the ex-strikers, as expressed to Freeman;
from Carter's resolve, stated to Robert Berg, to dis-
charge the ex-strikers as quickly as grounds could be
posited; from the misleading nature of Freeman's termi-
nation notice, falsely stating that he took the money after
closing, the implication being that it had been a clandes-
tine undertaking; from Freeman's in fact having acted
with the consent of his immediate superior, Privatte,
having returned the money both within the time set by
Privatte and before being confronted by Healey about
what he had done; and from the failure of Respondent's
witnesses to address any testimony to the question of
Freeman's discharge.'
B. Richard Mead
Facts. Mead was reinstated on December 7, 1976; then
was discharged on March 19, 1977. He was a mechanic
at Respondent's repair shop in Richmond before the
strike, working primarily as a welder." Upon reinstate-
ment, he was made a yardman, first at Oakland, then at
San Pablo.9
X The determination of the California Employment Development De-
partment, suggesing Ihat Freeman had acted improperly concerning the
money, is rejected as contrary to the weight of evidence as developed inl
the present proceeding
I The Richmond shop was cl.s'ed it Ihe start orf he strike never to
reopen
9 As is concluded in Ihe companion hackpa) decision eof this dale, Re-
spondent was not warranted ill relnialing Mea;d a, other than a mcchal-
ic. at a mechanlc%' wage lc\cl
Mead was discharged by George Westbrook, the San
Pablo manager, after fighting with a coworker, Richard
Moody. Before the fight, Moody, a striker replacement,
had ignored Mead's request for help in loading a roto-
tiller into a Volkswagen, after which Westbrook had
criticized Mead "about putting something in a car that
might ruin or wreck it." Mead replied that no one would
help him, at which point, as Mead recalled, Moody
"started saying smart remarks about he didn't have to
help . . . and all this other stuff." Mead asked West-
brook to "tell that goddamn Mexican [Moody] to shut
up." Then, according to Mead, Moody "really started
getting irate."
Mead's testimony continued that Moody threatened to
"cut me with his knife," whereupon Mead "pushed him
backwards" with both hands. As Moody sought to re-
cover his balance, Mead "grabbed him by his hair" and
"in a headlock." Then, "petrified" that Moody might be
reaching for his knife, Mead grabbed a steel timing light
from the counter, hitting Moody over the head with it
several times and drawing blood.
A coworker, Mike Hoffmann, intervened, taking the
timing light from Mead. Mead continued that he then
"looked around . . . and Richard Moody has got his
knife out." Mead clutched a piece of pipe. Westbrook,
who had inexplicably left the area during the fracas, re-
turned about then. He disarmed Moody and Hoffman
again disarmed Mead.
Westbrook shortly returned Moody's knife, and he
again brandished it. Mead wrapped his coat around his
hand and challenged: "Well, if we are going to get it,
let's get it." Before anything could happen, Westbrook
took the knife once more. He then escorted Mead to the
gate and told him he was fired. °
Following the discharge, Westbrook placed a termina-
tion notice in Mead's file stating:
Rich Mead has a very violent temper. 3 times he
has threatened other employees. He hit Richard
Moody over head with heavy timing light putting
five stitches in his head. Richard Moody did not do
anything to provoke this type of attack & only
tryed [sic] to defend himself.
Moody received no reprimand over the affair.
Robert Berg, the San Pablo assistant manager at the
time, credibly testified that, 4 or 5 days before Mead's
discharge, Fred Carter had encouraged Moody, in Berg's
presence, to get Mead into an argument so that Respond-
ent would have grounds to fire him in order to help it
with its labor problems. Then, the day after the dis-
charge, as Berg credibly recalled, Carter exulted that "it
finally broke loose," alluding to Mead's notoriously "hot
temper," and urged Moody to press criminal charges
against him.
"' Mead" 's erion off the fight, just set forth, correspoiids in mosi par-
ticular, v:ilh WeihbroIIk', Iess detailed versionl Moo.ds and Hoffmann did
nol teitiify Regardinlg Mood's', saying. before the first contact. that he
vwas going to "cut" Mead ' ith hi, knife. Weslbrook initially testified that
Moody salid somethig to Ihall effect later amending " donl' belie, e he
said th;t. Iro " Meald', troim lonl in thi, regard, initiall 5 corrolh, ratet d hb
'estbhrook L , credilcd
335
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mead's personnel file contained seven post-reinstate-
ment warnings. In seeming contradiction of the termina-
tion notice, six refer to such matters as tardiness, failure
to call in, and absence because of car trouble, with only
one mentioning a threat. That one, dated February 19,
1977, and signed by Healey and Westbrook, cites Mead
for "using abusive & profane language and threatening
bodily harm to a superior in front of Al Walker, shop
steward, directed at Fred Carter." Under "Action to be
Taken," the document states: "None at this time. Next
time, 4 days off without pay. Next time, termination."
Recalling the incident underlying the February 19
warning, Mead testified that Carter had taken offense
and shoved him after he had referred to one of the em-
ployees as "a jerk" and "a knucklehead." That same
afternoon, as Carter was talking with Walker and West-
brook, Mead approached them "to see what was going
on." Carter said "something smart" to him, according to
Mead, and he responded: "Fred, if you touch me again, I
am going to knock your f-ing head right off your
shoulders."
Conclusion: It is concluded that Mead's discharge was
in retribution for his striking, and that it consequently
violated Section 8(a)(3) and (1) of the Act as alleged.
While Mead arguably responded with excessive force
to Moody's taunts, he by then had reason to be appre-
hensive about being "cut" by Moody; such taunts had
been encouraged by Carter in the hope of inflaming
Mead and creating a pretext for discharge; and Respond-
ent, by its failure to adequately reinstate Mead and the
other ex-strikers and by its discriminatory and profligate
issuance of warnings, had created a climate of utmost
hostility to them.
Then, too, there is the haste with which Mead was
fired, even though Westbrook had strangely absented
himself from the fight and attempted no investigation of
what had happened while he was gone; the fact that
Moody, a nonstriker, received not so much as a warning
for his part in the fray, although probably no less culpa-
ble than Mead; Carter's exultation on the day after
Mead's temper had "finally broke loose"; and Respond-
ent's general predisposition to discharge the ex-strikers,
the sooner the better.
These considerations, in the aggregate, compel the
conclusion that the fight, or something like it, had been
foreordained as a device to purge Mead; and, even if it
were not, that Mead would not have been discharged
had he been the nonstriker and Moody the striker.
C. James Morgan
Facts: Morgan was reinstated on October 13, 1976;
then discharged on December 4, 1976. He was a yard-
man at Berkeley before the strike, and held that same po-
sition at San Pablo after reinstatement. '
Morgan's discharge was accompanied by a termination
notice signed by Robert Berg, the San Pablo assistant
manager. It cites two December 4 incidents in support of
the action. Regarding the first, it states:
1 As is concluded in the companion backpay decision of this date,
however, Morgan's reinstatement was inadequate in part because the con-
tent of his work was appreciably more onerous than before; and also be-
cause he was not paid at a proper level after reinstatement
Sending out equipment in unsatisfactory condition.
Not checking equipment for satisfactory connec-
tions. Causing customer to wait I hr. for horse trail-
er because connection was bad and on [illegible].
Morgan credibly testified that this involved a customer
named Chuck Steele; that the reference to a bad connec-
tion had to do with a nonfunctioning trailer light; and
that eventually, after the San Pablo repairman, Richard
Moody, was unable to fix it, Morgan hooked up another
trailer.
Concerning the second December 4 incident, the ter-
mination notice states:
Later in day, R.L. Creston came in. Waited 2-1/2
hrs. for trailer. All was wrong was wire was worn
out. Cust. came in complaining. I went out within 5
min. found problem. Cust. want to see owner. He
wasn't in. Made written complaint. 2 in one day.
Bad customer relations lost rental.
This in fact involved a customer named Louis Schultz.
Schultz operates a business under the style of R. L. Cus-
toms, which perhaps explains his being identified in the
warning as R. L. Creston.
Morgan testified in elaborate and convincing detail of
the events comprising this incident. Summarizing,
Schultz browsed around the San Pablo yard for a consid-
erable length of time, resisting Morgan's attempts to be
of service. Finally, he asked that a 5-by-8 foot trailer be
hooked to his car. After Morgan had accomplished that,
Schultz said he wanted a trailer with two brake lights in-
stead of one, so Morgan unhooked the trailer. Schultz
then decided to keep the original, and Morgan again
hooked it up.
About then, according to Morgan, Schultz said that he
needed a 5-by-12 foot trailer instead of one 5-by-8 feet.
Morgan unhooked the first trailer once more, and asked
Schultz to back his car to a 5-by-12 foot one. This was a
labored process, with Schultz appearing to have trouble
following Morgan's hand signals. "At one point,"
Morgan recalled, "he almost ran over me." Morgan
eventually hooked the second trailer to Schultz' car,
only to be told by Berg to unhook it because the trailer
was too large for the car, an Opel.' 2 Schultz then said
he would settle for the original trailer, and Morgan
began to hook it up again.
By now, Morgan continued, Schultz was evincing
great impatience, and seemingly was withholding his co-
operation as Morgan attempted to hook up the brake
light. Overcoming that, Morgan nevertheless was unable
to get the light to work, even though he had succeeded
earlier with the same trailer and car. He called for Berg,
who came after a several-minute delay. Berg crawled
under the trailer and announced that he had found a
broken wire. With that, Schultz declared that he did not
want a trailer, and Morgan unhooked it a last time. Ex-
amining the broken wire, Morgan observed that it had a
'I Thinking that the hookup of the 5-by-12 foot trailer "looked real
precarious. Morgan had asked Berg to approve it. Berg went to the
office, according to Morgan, presumably to talk to Fred Carter about it,
telling Morgan upon returning to unhook it.
336
CARTER'S RENTAL
clean, unfrayed break, leading him to surmise that it had
been cut deliberately after he last previously had un-
hooked the trailer from Schultz' car.
Morgan saw Schultz go into the office with Berg at
this time, after which they "sort of waved" to each other
as Schultz left. Morgan credibly ';tified that Fred
Carter was on the premises at least at times during this
sequence, and that Schultz and Carter had coffee togeth-
er.
Schultz submitted a written complaint over the inci-
dent before leaving. He at first testified that it was his
idea, "because I don't think .he [Morgan] is competent
enough to be working for the public." He later testified,
variously, that Carter had suggested that he "make out a
complaint," that he did not so much as see Carter that
day, that a woman employee had broached the idea
before he spoke with Carter, that the woman's proposal
came after he had spoken with Carter, and that he talked
with Carter perhaps 20 minutes after he wrote the com-
plaint. Schultz further testified that "about two hours"
had elapsed before he first voiced dissatisfaction, that
being to an unidentified person who "shrugged his shoul-
ders"; and that he could not recall if Carter offered to
have someone other than Morgan hook up the trailer-"
I was running out of time by now, there was no sense in
me messing around."
Schultz had done business with Respondent "for many
years," and he and Carter belong to the same Rotary
Club. Berg credibly testified that Schultz "came to the
yard very frequently" and that he and Carter "talked
about Rotary and they would go to lunch quite a bit to-
gether." The day before Morgan's discharge, again ac-
cording to Berg's credible testimony, Berg heard Carter
tell Schultz of his wish to "get rid or' Morgan. Schultz,
who had told Carter in the same conversation how a
union had "broke" him and how he "hated" unions,
asked if there was anything he could do "to help."
Carter proposed:
Well, why don't we do this, can you come in acting
as a contractor to rent some rental equipment and
just put him through the mess and see if he messes
up and just ride him.
Schultz replied: "Sure, I will do that."
Later, still tracking Berg's credible testimony, Carter
told him about the arrangement with Schultz, instructing
Berg "to make sure" that Morgan was assigned to serve
Schultz when Schultz came in, and to be alert to write
Morgan up and fire him "on the spot."
Berg's testimony continued that, the day after Mor-
gan's discharge, Schultz came to the San Pablo yard and
boasted that, since Morgan had done "everything right,"
he finally had to snip the wire under the trailer with fin-
gernail clippers to "get him."
Morgan's personnel file contained 12 post-reinstate-
ment warnings, the first dated November 4. They cite
such things as tardiness, a failure to wear safety goggles
around the grinder, the need to turn off machinery when
not in use, a failure to clean up his assigned area, his dis-
agreeing that his job duties included repairing flat
tires,'3 and a failure to test equipment before renting it.
Morgan credibly testified that he was never shown sev-
eral of these warnings.
Conclusion: It is concluded that Morgan's discharge
was in retribution for his striking, and that it consequent-
ly violated Section 8(a)(3) and (1) as alleged.
Berg's credible testimony tells the whole story. Even
without it, Schultz was an obvious ringer, brought in to
discredit Morgan and create a pretext for discharge.
Janice Browne Tucker
Facts: Tucker was reinstated on December 13, 1976;
then discharged on April 4, 1977. She was an office
clerical employee at Respondent's Berkeley headquarters
both before and after. 4 She began with Respondent in
mid-1973. Yvonne Carter, Fred's wife and a bookkeeper
and supervisor for Respondent, described Tucker as an
"exceptionally good typist"- "the best we ever had."
One of Tucker's main postreinstatement duties was to
review rental contracts for errors. t 5 Respondent writes
about 600 contracts per week at its three locations, and
Tucker was to check every one of them, according to
Yvonne Carter. The stated reason for Tucker's dis-
charge, as contained in a termination notice given her by
Mel Healey, was:
Jan has falsified records pertaining to errors made
on contracts by overlooking errors made by certain
employees.
Tucker credibly testified that, when he gave her the
notice, Healey disclaimed any knowledge of the underly-
ing circumstances and asserted that he was carrying out
Yvonne Carter's instructions. Yvonne testified, on the
other hand, that she had merely told Healey "what was
happening," but made no recommendation. Regardless,
the errors supposedly being overlooked were those of
three former strikers-Coleen Hogle, William Mattick,
and Alfred Walker. Yvonne testified that she noticed,
probably in January, that Tucker was finding no errors
in the contracts prepared by those three, so checked
back and found errors by them that had not been picked
up.
Yvonne elaborated that she found "about a dozen"
contracts, written over a 2-week period, in which one or
the other of three had made errors that Tucker had not
detected. She added that five or so of the errors were at-
LS Morgan did not repair tires before the strike; and he credibly testi-
fied that, upon his reinstatement, he was told by George Westbrook, the
San Pablo manager, that he was not to do any repair work Westbrook
presently left to undergo surgery, however, being supplanted by Berg,
who assigned tire-repair tasks to Morgan The disagreements ensued,
Morgan citing both what Westbrook had told him and the terms of his
reinstatement- "that I was not to do duties other than what I had per-
formed before."
" As is concluded in the companion backpa) decision of this date.
however, rucker's reinstatement was inadequate in part because of dissi-
milarities between her prestrike and post-reinstatement work: and also be-
cause she was not paid at a proper level after reinstatement
iS Tucker is credited that she did not check contracts before the strike,
as against Yvonne Carter's assertion that she did. Carter's testimony
simply was unconvincing that contracts were spot checked before the
strike "if [she] made a recommendation." and that she "imagineld]" she
made such a recommendation "over the years
337
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tributable to Hogle, who had written about 200 contracts
in that 2-week period; and that two each were attributa-
ble to Mattick and Walker, each of whom wrote "very
few" contracts. Yvonne continued that she did not men-
tion the oversights to Tucker, explaining that she "was
just watching" her and that "it wasn't my place to say
anything to her." She said that she reported her findings
to Fred Carter and to Healey "a couple times," and that
"we just watched her."
Other than a single contract attached to Tucker's ter-
mination notice, reflecting her failure to catch an error
by Hogle, the record is devoid of documentation that
Tucker failed, purposely or otherwise, to detect errors
by the ex-strikers. On rebuttal, the General Counsel in-
troduced two contracts in which Tucker had noted
errors by Hogle, and one each in which she had found
errors by Mattick and Walker. Moreover, a written
warning to Kimberly Westbrook, an ex-striker, on Janu-
ary 18, 1977, has as an attachment nine contracts with
errors. A comparison of handwriting indicates that errors
in four of the nine were found by Tucker.' 6
On an undisclosed date after her reinstatement, Tucker
received a written warning from Healey which states:
Jan was threatening and intimidating Linda [Hall]
with the fact Kathy [Coughlin] would return & take
her job.
Tucker credibly testified that this derived from a conver-
sation with Hall, a striker replacement, in which, reply-
ing to Hall's expressed fear of losing her job should
Coughlin, an ex-striker, be reinstated, Tucker said that
Respondent, "would have to offer" Coughlin reinstate-
ment, and then it would be for her to decide if she
would return.
Tucker was a union steward when discharged, and had
been for about a month.
Conclusion: It is concluded that Tucker's discharge
was in retribution for her striking, and that it conse-
quently violated Section 8(a)(3) and (1) as alleged.
Being human, Tucker doubtless failed to detect all of
the errors in all of the hundreds of contracts that she
checked. There is nothing to suggest, however, that she
exercised less scrutiny in reviewing the work of ex-strik-
ers than nonstrikers. Indeed, that it took Respondent
until April to build what it deemed a case for discharge,
when the suspicion of misconduct professedly arose in
January, speaks eloquently of her even-handedness and
of Respondent's duplicity. Duplicity is evident, as well,
in Respondent's failure to apprise Tucker of her alleged
oversights as they were perceived, rather than "just
watching" her in the manifest hope that she would mis-
step.
The obvious pretextuousness of Tucker's discharge, in
combination with the lengths Respondent was willing to
go to rid itself of the ex-strikers (as witness Morgan),
leaves no doubt that the discharge was improperly moti-
vated.
ia This does not mean that Tucker neglected to find errors in the other
five. Westbrook was reinstated before Tucker, and Tucker did not begin
checking contracts until some sweeks after her reinstatement Prior check-
ing was done by Yvonne Carter and Eleanor Nunes.
E. Alfred Walker
Facts: Walker was reinstated on December 16, 1976;
then was discharged on February 12, 1978. With his dis-
charge, Respondent had no ex-strikers on its payroll.
Walker was an assistant manager at Oakland when the
strike began, and was made a yardman at Berkeley upon
his return. He was transferred to Oakland after about 3
months, still as a yardman and, after another 3 months or
so, was returned to Berkeley, continuing as a yardman. 7
Walker had been with Respondent for 6 years before the
strike, and was its most senior nonsupervisory employee.
About a week before his discharge, Walker was
awarded a $202 judgment against Respondent over some
defective equipment he had rented. That was followed
by a letter to him from Yvonne Carter in which she said
that the judgment would be satisfied on March 25, 1978.
On February 11, after receiving the letter, Walker tele-
phoned Fred Carter to protest the delay in getting the
money. Both were working when the call was made,
Walker at Berkeley, Carter at San Pablo. Carter rebuked
Walker for calling about private business on company
time and asked to speak with Healey, who also was at
Berkeley.
After Healey finished speaking with Carter, he said to
Walker: "Fred said he don't want you calling . ..any-
more to talk about personal business, and he don't talk to
niggers nowhere." Walker is black. Offended, Walker
tried to call Carter again, only to be told that he had left
for the day.
That night, Walker telephoned the Carter home, seek-
ing to talk to Fred. Yvonne answered and said that Fred
was asleep, so he spoke with her. He said he was "tired
of playing games" over the money Respondent owed
him,'8 and was tired, as well, of Fred's calling him a
nigger. Earlier, soon after his reinstatement in 1976 and
having heard from coworkers that Fred had been refer-
ring to him as "'that black nigger' or nigger this or
nigger that," Walker had confronted Carter about calling
him names.' 9
The next day when he got to work, Walker was told
by Healey that he was fired "because you threatened to
blow up Fred's house." Healey gave him a termination
notice stating:
Al threatened Yvonne Carter and her house over
the telephone that if Fred didn't stop calling him
names he threatened to blow up house and anyone
in it.
7 As is concluded in the companion hackpay decision of this date,
Walker's reinstatement was inadequate because of dissimilarities between
his prestrike and postreinstatement work.
'm Walker first sued Respondent in small claims court, receiving a fa-
sorable judgment. Respondent appealed. necessitating a second hearing in
superior court. which Walker also won
"U Robert Berg credibly testified, with reference to Walker's being as-
sigined to clean restrooms after his reinstatement, that Carter had said
"Every yard should have a nigger to do it." Charles Eyler, a striker re-
placement, credibl) testified that Carter once referred to Walker as a
"black bastard" in a conversation with him. Carter testified that he had
"never called him [Walker] a nigger in front of his face, ever."
CARTER'S RENTAL
Walker admitted to Healey that he had been "extremely
upset" in the conversation with Yvonne, but denied
threatening to blow up the house.20
Walker then was called into Carter's office. There, in
the presence of Healey and George Westbrook, Carter
proclaimed that "no one is going to threaten me or my
family," and warned that, if Walker ever went to the
Carter ranch, he would never leave. A "heated discus-
sion" ensued-Carter's characterization-and Carter at
length told Walker to "get out." A shoving match fol-
lowed, police were called, and Walker left. By Carter's
admission, Walker denied again in this exchange that he
had made any threats.
Walker served as chief union steward after his rein-
statement, and was on the union bargaining committee in
the negotiation of the agreement with Respondent.
Carter caused two written warnings to be placed in
Walker's personnel file over his activities as a steward.
On November 22, 1976, while speaking to Carter on
behalf of Mark St. John, Walker said: "You had enough
problems now, and you shouldn't add anymore." The
sense of the warning was that Walker had threatened
Carter. And, on December 30, 1976, Carter cited Walker
as being "demanding and disrespectful" after he had at-
tempted to speak to Carter about a writeup given to
Janice Tucker.
In late August 1977, after the refusal of Coleen
Hogle's request that a shop steward be present while
Carter spoke with her, Walker told Carter that he had
been in violation of the labor law and that he could not
"pull this kind of shit." A few days later, as is more fully
detailed below, an obscene limerick appeared on the wall
of the women's restroom at San Pablo, referring to Al
and Coleen-presumably Walker and Hogle.
Charles Eyler, a striker replacement, credibly testified
of a conversation with Carter in November 1977 in
which Carter complained that Walker ("some black bas-
tard") had gotten a little power and it had gone "to his
head," and that he would have "got rid" of Walker by
then "but he has got that goddamn union."
In all, Walker's file contained 13 postreinstatement
written warnings. Apart from those already described,
they relate to such things as tardiness; allegedly threaten-
ing a striker replacement by telling him he would be sub-
ject to replacement when a striker was reinstated; failing
to examine equipment before renting it out; accepting an
expired credit card; talking to Kimberly Westbrook, a
striker yet to be reinstated, at the Oakland yard; and
saying "f- you" to Richard Moody and offering to
"beat his ass."
Conclusion. It is concluded that Walker's discharge
was in retribution for his striking, and that it consequent-
ly violated Section 8(a)(3) and (1) of the Act as alleged.
20 Yvonne originally testified that Walker did not identify himself and
simply said he was "going to blow up the house." Then, faced with her
affidavit, she testified that he said that. if Fred ever called him a nigger
again, he would blow up the house The affidavit of Kimberly West-
brook. who was with Walker when he made the call. states that he said
he was "sick and tired of being called a nigger and he [Carter] better not
do it anymore." She did not testify. having died before the hearing
Walker denied making an) threats He was a forthright and persuasie
witness. As the above alteration in Yvonne Carter's testimony suggest,.
she was not Walker is credited
Having been credited Walker that he did not threaten
to blow up Carter's house, either absolutely or should
Carter persist in referring to him in a racially slurring
manner, the stated ground for discharge perforce was
fabricated. That, coupled with Carter's remark to
Charles Eyler approximately 3 months before the dis-
charge that he long since would have "got rid" of
Walker but for the "goddamn union," and Respondent's
virulent hostility toward the ex-strikers generally, of
whom Walker was the last on the payroll, forces the
conclusion that the discharge was unlawfully motivated.
F. Kimberly Westbrook
Facts: Westbrook was reinstated on December 1, 1976;
then was discharged on January 31, 1977. She was a
counterclerk at Berkeley before the strike and after her
return. 2
Westbrook received a termination notice explaining
her discharge as follows:
Employee arrived for work at 7:35. Gave no expla-
nation to supervisor as to reason for being late.
Normal starting time was 7:30.
Westbrook's personnel file contained 11 postreinstate-
ment written warnings. They reflect that she twice was
sent home for I day as a disciplinary measure, once for
tardiness and once for extending credit without authori-
zation and overcharging a customer; and that she was
sent home for 2 days on one occasion and 3 on another
because of contract errors. The warning reflecting the 2-
day suspension was accompanied by nine contracts on
which errors by her were noted.
James Morgan testified credibly and without refutation
that he overheard a conversation, on December 2, 1976,
between Mike Privatte, the Berkeley manager, and an
agent of the linen service used by Respondent. Motion-
ing toward Westbrook, the agent said, "She is back."
Privatte replied, "For awhile," and the agent asked, "Do
you want me to order for her?" Privatte shook his head
in the negative. The agent asked, "You want me to hang
loose for awhile?" Privatte answered, "Yeah, hang
loose."
Westbrook did not testify, having died February 28,
1979. Nor did anyone on behalf of Respondent testify
concerning her discharge. She was the daughter of
George Westbrook, San Pablo manager.
Conclusion. It is concluded that Westbrook's discharge
was in retribution for her striking, and that it conse-
quently violated Section 8(a)(3) and (1) as alleged.
The stated ground for discharge-reporting 5 minutes
late-is so fraugt with pettiness as to be demonstrably
pretextuous. Moreover, Privatte's comments to the agent
of the linen service, the day after Westbrook's reinstate-
ment, betrayed an intention to retain her only temporar-
ily. Finally, Respondent's failure to bring forth witnesses
privy to the discharge suggests a realization that their
testimony would not bear scrutiny. These factors. togeth-
21 As is concluded il the companion backpa 3 decision ,of this dale,
how.ever. Westhrolok never as, paid at a proper leel after reinstatement
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
er with Respondent's fierce antistriker resolve, necessi-
tate a finding that the discharge was improper.
VII. THE ALI EGED CONSTRUCTIVE DISCHARGE OF
COL.EEN HOGLE
A. Facts
Hogle was reinstated on December 4, 1976; then quit
on September 8, 1977. She was a counterclerk at San
Pablo before the strike. She performed the same function
upon reinstatement, first at Oakland, then at Berkeley,
and finally at San Pablo.22
Upon her return to San Pablo, in August 1977, Hogle
began to suffer from harassment and vandalism. On
August 7, she found motor oil in her coffee at work. On
August 10, she noticed that someone had written
"Coleen screws" on an office calendar. That same day at
lunchtime, she found grease on the hood of her car, the
car had been scratched and squirted with a fluid that
bleached out the paint, and the tires were surrounded by
T-shaped nails used by a certain tool that Respondent
rents. The car was parked on a public street near the San
Pablo facility. Hogle had served Alfred Walker's small
claims complaint on Carter, at San Pablo, the morning of
August 10.
That afternoon, Hogle showed her car to George
Westbrook, San Pablo manager. He reacted that he did
not "think anybody from here would do anything like
that." She replied that he was "full of it." Robert Berg
credibly testified that he had heard Carter encourage
some of the employees to "mess up" the cars of ex-strik-
ers, even offering rides to where the cars were parked.
Berg described a time when Richard Moody boasted of
either scratching Hogle's car with a key, or of poking a
hole in its radiator. Later, Berg heard Carter ask Moody
if he had done it, after which, when Moody said he had,
Carter exclaimed that he could "hardly wait until tonight
when she got ready to go home."
On August 21, Hogle told some of the striker replace-
ments at San Pablo that, whenever they might ask for a
raise, Carter would tell them that his money was "tied
up at the Labor Board," to which she added:
When you think you are going to get a raise, you
look around and see who is driving the Cadillac and
then see when you get your raise.
Carter, evidently having heard about these remarks, con-
fronted Hogle on August 24, stating:
All through this thing, Coleen, you know I felt
really close to you, but I am not going to stand for
you starting rumors about me and calling me a thief
and telling my employees that I am taking company
funds, I won't have that.
In response, Hogle denied that she had called Carter a
thief or said anything about company funds, and asked
that a shop steward be present on her behalf. Carter re-
plied:
*2 As is concluded in the companion backpay decision of this dale,
however, Hogle never was paid at a proper level after reinstatement
I am sick and tired of you and your people coming
in here and disrupting things. If you don't like it,
you get the hell out.
Hogle again asked for a steward. Westbrook, present
during the exchange, interjected that she did not need a
steward- "nothing was said about you and . . . it does
not relate to your job." A while later, Carter received a
telephone call from Alfred Walker, the chief steward,
about the situation, after which Walker spoke to him
face to face, telling him he had violated the labor law by
refusing Hogle's request. Carter caused a written warn-
ing to be placed in Hogle's personnel file over the
matter. It was not shown to her, and she apparently was
not aware of it before she quit.
On August 31, Hogle found an obscene limerick scrib-
bled on the wall of the women's restroom at San Pablo.
It began, "There once was a whore named Coleen," and
ended, "even Al fell in & was never again seen." The
"Al" presumably was a reference to Walker. Hogle
showed this to Westbrook, remarking, "You can tell me
that these aren't any of your people doing these things."
Westbrook replied that he did not think Carter did it.
Later that day, Carter apologized to Hogle "for the filth
written on the bathroom wall," and said he had "no idea
those things were happening." On duty at San Pablo that
day, besides Hogle, Carter, and Westbrook, were Moody
and Mike Hoffmann.
The charge in Case 20-CA-13334 (later renumbered
Case 32-CA-352) was served on Respondent on about
August 31.23 On September 1, Carter assembled some of
the San Pablo employees in the yard, stating to them:
I was just served with more papers from the Board
last night and I apologized to Coleen for the stuff
that was written on the bathroom wall, and I'm
sorry I did that because now they are really trying
to hang me at the Board and this vandalism stuff
has really got to stop. We can't have this around
here. What you do off the job is your own busi-
ness. 24
As previously mentioned, Hogle quit a week later, on
September 8, leaving Walker as the only ex-striker on
the payroll.
Hogle was a union steward and on the union bargain-
ing committee in negotiations with Respondent.
B. T3Conclusion.
It is concluded that Respondent induced Hogle to quit
because of her striking and subsequent union activities,
and that it consequently was tantamount to a discharge,
violating Section 8(a)(3) and (1) as alleged.
The harassment, the vandalism, and the obscenities in-
flicted on Hogle in the last month of her employment
clearly had management sanction, and obviously were
meant to punish her for striking and for requesting the
presence of a steward when Carter confronted her, and
plainly were so offensive and recurring as to make her
23 The charge was filed on August 29.
24 This is Hogle's credible version of Carter's comments. She testified
that she .as not part of the group, but was within earshot
340
CARTER'S RENTAI
work situation intolerable. She therefore was warranted
in claiming the benefits of unlawful discharge even
though quitting. E.g., Fidelity Telephone Company, 236
NLRB 166 (1978); Crystal. Princeton Refining Company,
222 NLRB 1068, 1069 (1976).
VIII. THE SUSPENSION OF ALtFRED WAI.KER
A. Facts
Walker, it will be recalled, was reinstated on Decem-
ber 16, 1976, and discharged on February 12, 1978.
On September 8, 1977, he was suspended for I week
without pay. He then was a yardman at Berkeley. Carter
prepared a written warning incidental to the suspension.
It states:
Al checked out equip. at Berkeley store improperly,
causing equip. to break down and delay of job by
customer. Damage to equip. app. 800.00 & loss of
rental of $90.00. Cust. has signed statement to the
fact of substandard work and carelessness.
On the morning of August 8, Walker rented out a
small tractor, called a Bobcat. The customer called in
about 2 hours later, reporting that the machine was
losing power and could not "pull a hill." Walker went to
the site, finding it in a ditch. He started it and it seemed
to be "running fine." The oil, however, appeared to be
overly full, so he drained some. Then, as Walker tried to
drive it out of the ditch, the customer observed oil leak-
ing from the rear. Walker assured him not to worry, that
it was oil "coming from the pan."
At length, unable to extricate the machine from the
ditch because of its steepness, Walker told the customer
to pull it out with a larger tractor, which was en route.
Walker cautioned the customer to check the oil before
starting the engine, explaining that Respondent would re-
imburse him for any oil he added. Walker then returned
to Berkeley.
Later in the day, the customer called in that the
Bobcat had blown up. Walker again went to the site,
verifying that the engine indeed had blown up. He asked
the customer if he had checked the oil before starting the
engine. The customer said no, that the Bobcat had been
driven only a short distance "and then we heard this
noise." Walker remonstrated that he had "specifically
told" the customer not to start the engine without check-
ing the oil, to which the customer replied: "Well, we
were just trying to get it out of the way."
Walker afterwards telephoned Carter to explain the
situation. The record intimates that Carter was not inter-
ested in what Walker had to say, instead declaring that
Walker had been negligent and cost him money, and was
being suspended. Walker also went to see the customer
at the customer's home. The customer told him: "I know
that it is not your fault, but I don't want to pay for the
tractor." 2 5
As against the statement in the warning notice that
Walker had checked out the equipment improperly,
1r The foregoing recital is based on Walker's credible and unrefuted
testimony. The customer did not testify. and neither Carter nor anyone
else from management testified concerning Walker's suspension
Walker credibly testified that he had been working
around Bobcats since 1972, and had followed the same
procedure on this occasion as always. Regarding the as-
sertion that the customer had signed a statement describ-
ing "substandard work and carelessness," no such docu-
ment was placed in evidence.
Walker was suspended the day of Hogle's constructive
discharge. About 2 weeks before, as has been detailed,
Walker, as steward, told Carter that he was in violation
of the labor law in denying Hogle's request for a steward
when Carter spoke to her; about 1 week before, the ob-
scene limerick referring to Walker and Hogle appeared
in the restroom at San Pablo; and, about I week before,
the charge was filed against Respondent in Case 20-CA-
13334 (Case 32-CA-352).
B. Conclusion
It is concluded that Walker's suspension was in retri-
bution for his striking and subsequent union activities,
and that it consequently violated Section 8(a)(3) and (I)
of the Act as alleged.
Perhaps most revealing was its timing relative to the
matters concerning Hogle and to Walker's activities, as
steward, on her behalf. Beyond that, there is no convinc-
ing evidence that Walker in fact was negligent or depart-
ed from the usual practice regarding the Bobcat; Carter's
eagerness to announce his suspension, in their telephone
conversation, belied any interest in honestly ascertaining
the facts, instead exposing a predisposition to be punitive;
the record reflects no precedent for this kind of punish-
ment in these or kindred circumstances; and Respond-
ent's failure to place in evidence any written statement
attributable to the customer suggests that none was given
and that the reference in the warning notice is untrue.
All of this, in combination with Respondent's consum-
ing hostility toward Walker, as one of the ex-strikers,
dictates the conclusion that the suspension was unlawful-
ly motivated.
CONCLUSIONS OF LAW
Respondent violated Section 8(a)(3) and (1) of the Act
by:
1. Its system of written warnings, as implemented from
October 1976 until there no longer were any ex-strikers
on the payroll in February 1978.
2. Discharging Walter Freeman on November 6, 1976;
Richard Mead on March 19, 1977; James Morgan on De-
cember 4, 1976; Janice Browne Tucker on April 4, 1977;
Alfred Walker on February 12, 1978; and Kimberly
Westbrook on January 31, 1977.
3. Constructively discharging Coleen Hogle on Sep-
tember 8, 1977.
4. Suspending Alfred Walker for I week on September
8, 1977.
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this proceeding, and pursu-
ant to Section 10(c) of the Act, I hereby issue the fol-
lowing recommended:
341
2DECISIONS O()F NA O()NAL LABOR RELATIONS BO()ARD
()RDER2 i
The Respondent, Carter of California, Inc., d/b/a
Carter's Rental, Berkely, Oakland, and San Pablo, Cali-
fornia, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Implementing a system of written warnings for the
purpose of discriminating against employees for having
engaged in a strike or other union or protected concert-
ed activities.
(b) Discharging, suspending, causing to quit, or other-
wise discriminating against employees for having en-
gaged in a strike or other union or protected concerted
activities.
(c) In any other manner interfering with, restraining,
or coercing employees in their exercise of rights under
the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Remove from its records, including the personnel
files of the affected persons, all written warnings issued
from October 1, 1976, through February 12, 1978, and
expunge any reference thereto; and notify the affected
persons in writing that this has been done and that the
warnings have been retracted. 2 7
(b) Offer Walter Freeman, Coleen Hogle, Richard
Mead, James Morgan, Janice Browne Tucker, and
Alfred Walker immediate and full reinstatement to the
jobs they held before the strike in April-May 1976, or, if
any such job no longer exists, to a substantially equiva-
lent position, without prejudice to their seniority or
other rights and privileges, and make them whole for
any loss of earnings and benefits suffered by reason of its
discriminatory discharges of them. 28
(c) Make the estate of Kimberly Westbrook whole for
any loss of earnings and benefits suffered by reason of its
discriminatory discharge of her. 29
(d) Make Alfred Walker whole for any loss of earnings
or benefits suffered by reason of his unlawful 1-week sus-
pension. 30
(e) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other rec-
ords necessary to analyze the amount of backpay due
under the terms of this Order.
26 In the event no exceplions are filed as provided by Sec 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions and recommended Order herein shall, as provided
in Sec. 102 48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes
7 Warnings having issued to nonstrikers to conceal the discriminatory
thrust of warnings against the ex-strikers, there being no way to deter-
mine which if any of the warnings might have been valid, and applying
the precept that any ambiguity be resolved against the wrongdoer, it is
appropriate the Respondent be required to remove all warnings issued
during the period stated.
2" Loss of earnings shall be computed as prescribed in F W Woolworlh
Company, 90 NLRB 289 (1950), plus interest as set forth in Isis Plumbing
& Heating Co, 138 NLRB 716 (1962), and Florida Steel Corporation. 231
NLRB 651 (1977).
29 See fn. 28, supru.
:"' See fn 28, iupra.
(f) Post at its locations in Berkeley. Oakland, and San
Pablo, California, copies of the attached notice marked
"Appendix.""' Copies of said notice, on forms provided
by the Regional Director for Region 32, after being duly
signed by Respondent's authorized representative. shall
be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that
the notices are not altered, defaced, or covered by any
other material.
(g) Notify the Regional Director for Region 32, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
:" In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board
Appendix
No-rICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAl LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the National
Labor Relations Board found that we have violated the
National Labor Relations Act, as amended, and has or-
dered us to post this notice.
The Act gives all employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To engage in activities together for the pur-
pose of collective bargaining or other mutual aid
or protection
To refrain from the exercise of any or all such
activities.
WE WIL.L NOT implement a system of written
warnings for the purpose of discriminating against
employees for having engaged in a strike or other
union or protected concerted activities.
WE WILL NOT discharge, suspend, cause to quit,
or otherwise discriminate against employees for
having engaged in a strike or other union or pro-
tected concerted activities.
WE WILL. NOT in any other manner interfere
with, restrain, or coerce employees in their exercise
of rights under the Act.
WE wiL. remove from our records, including the
personnel files of the affected persons, all written
warnings issued from October 1, 1976, through Feb-
ruary 12, 1978, and expunge any reference thereto,
and notify the affected persons in writing that this
342
CAR FER'S RENTAL
has been done and that the warnings have been re-
tracted.
WI witi offer Walter Freeman, Coleen Hogle,
Richard Mead, James Morgan, Janice Browne
Tucker, and Alfred Walker immediate and full rein-
statement to the jobs they held before the strike in
April-May 1976 or, if any such job no longer exists,
to a substantially equivalent position, without preju-
dice to their seniority or other rights and privileges,
and make them whole for any loss of earnings and
benefits suffered by reason of our discriminatory
discharges of them in 1976, 1977, and 1978, plus in-
terest.
WEi wit i.i. make the estate of Kimberly West-
brook whole for any loss of earnings and benefits
suffered by reason of our discriminatory discharge
of her in 1977, plus interest.
WE wnil. make Alfred Walker whole for any loss
of earnings or benefits suffered by reason of his un-
lawful one-week suspension in 1977, plus interest.
C ARTER OF CAI.IFORNIA, INC. D/B/A
C ARTER'S RLNTAI