Claborn American, Inc.

National Labor Relations Board - Board Decisions

Apr 12, 1973

202 N.L.R.B. 1086 (N.L.R.B. 1973)

1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Claborn American , Inc. and Motor City Mechanics I would therefore limit the remedy to require only
Lodge No. 698, International Association of Ma - that he be accorded preferential hiring status on and
chinists and Aerospace Workers , AFL-CIO. Case after such time as he may once again be licensed to
7-CA-9493 drive under the laws of the State.
April 12, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On November 10, 1972, Administrative Law Judge
Bernard Ness issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record 1 and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Claborn American,
Inc., Detroit, Michigan, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order.
CHAIRMAN MILLER, dissenting:
I disagree with my colleagues only with respect to
the remedy.
On the merits, the case turns essentially on
credibility issues. While the record reveals that those
issues are not free from doubt, I do not find
sufficient basis for reversing the Administrative Law
Judge's determinations.
But I do not believe that we can, or properly
should, order the reinstatement of Willie Thomas.
Wholly apart from the issue of whether Respondent
initially determined to discharge him because of his
loss of his driver's license, both Respondent and we
now know that he has lost it, and that he is thereby
incapable of lawfully performing driving duties. It is
undisputed that the duties of his classification
require considerable driving of cars.4 It is, therefore,
neither legally nor practically sound to require his
reinstatement to that classification at this time, nor
to award backpay for a period during which he could
not have lawfully performed the duties of his job.
1 As the record and Respondent 's brief adequately present the positions
of the parties , Respondent 's request for oral argument is hereby denied.
2 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge' s resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions were incorrect . Standard Dry Wall
Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). We have carefully
examined the record and find no basis for reversing his findings.
3 We note that our dissenting colleague would limit the remedy and
require only that Willie Thomas be accorded preferential hiring status on
and after such time as he regains his driver 's license . We believe our
colleague has not given sufficient weight to several important facts.
Thus, on October 21, 1971, Thomas ' driver's license was suspended for a
year as a result of an accident in his private automobile . Thomas
immediately notified Respondent of the suspension ,. at which time
Respondent's general manager , Norbert Dueck , stated, "Well , we're going
to let you stay on because you do pretty good work...... Thomas was told
to perform all of his regular duties except for driving customers back and
forth to their homes and checking in cars at the Six Mile Road location. All
went well until November 16, 1971, when, during the course of the union
campaign , Dueck asked Thomas whether he had signed a union card.
Thomas admitted that he had. The very next day, Al Holden, Respondent's
department manager, told Thomas to drive a customer's car to the bump
shop, thus requiring Thomas to drive a short distance on the public streets.
Immediately upon driving away from the curb, Thomas was stopped by an
unmarked police car and arrested . Upon his release from jail, Thomas was
discharged by Respondent, allegedly because Thomas was of no further
value to Respondent without a driver 's license.
In view of the foregoing , in particular the fact that the suspension of
Thomas' driver's license was of no consequence to Respondent until it had
learned that Thomas had signed a union card , and in light of the fact that
Thomas has other nondriving duties, we see no valid reason to limit our
remedy as our colleague suggests . Furthermore, we note that the 1-year
suspension of Thomas' driver's license has now expired.
4 The majority opinion tends to leave the impression that Respondent
had, on October 21, 1971, kept Thomas in its employ to perform only
nondriving work . Rather, the record shows that , when Thomas first incurred
a suspension of his license, Respondent kept him on, but continued to
.permit him regularly to drive the short distances from the service garage to
the parking lot and to the bump shop. It was in the course of just one such
trip that Thomas was picked up by the police and thereafter prosecuted for
driving without a license . It seems apparent, therefore , that while
Respondent once thought it could continue Thomas in its employ and evade
the law by assigning him regularly to short trips when his lack of a license
might not be detected , it has now learned its lesson in this regard . There is
no showing whatever, in the record, that Thomas can effectively be utilized
in performing services requiring no driving at all. I assume my colleagues
are not suggesting that he be reengaged in the hope that Respondent will be
more successful in evading the law a second time.
DECISION
STATEMENT OF THE CASE
BERNARD NESS , Administrative Law Judge: This pro-
ceeding was heard before me in Detroit , Michigan, on
August 24-25, 1972, pursuant to charges filed on April-27,
1972, and complaint issued on June 1 , 1972. The basic
issues were whether or not Respondent violated Section
8(a)(1) and (3) of the National Labor Relations Act
through the discharge and refusal to reinstate Ernest and
Willie Thomas. -
Concurrently with the filing of its answer to the
complaint , Respondent filed a motion to dismiss the
complaint . Counsel for the General Counsel filed an
opposition to the motion . The thrust of the motion was that
202 NLRB No. 157
CLABORN AMERICAN, INC.
the Decision of Administrative Law Judge Samuel Ross,
issued on May 23, 1972, in Case 7-CA-9107 was res
judicata of the issues raised in the instant case. The
Respondent , in its motion , also raised questions of estoppel
and laches. On July 25, 1972, Associate Chief Administra-
tive Law Judge Harold X. Summers issued an order,
denying said motion. The motion to dismiss, General
Counsel's opposition, and Associate Chief Administrative
Law Judge Summers' order appear in the exhibit file as
General Counsel's Exhibits 1(f), (g), and (i), respectively.
All parties appeared at the hearing and were afforded
full opportunity to be heard and adduce relevant' evidence.
Briefs have been received from General Counsel and
Respondent and have been considered.
In Case 7-CA-9107, Administrative Law Judge Ross
found that the Respondent had committed certain inde-
pendent violations of Section 8(a)(1) and had unlawfully
discharged three employees, Glycie Redmond, Robert L.
Brown, and Ernest Woodward. No exceptions were filed
and, on August 17, 1972, the Board issued a short form
order adopting Administrative Law Judge Ross' findings,
conclusions, and recommended Order.
At the commencement of the hearing before me, I
informed the parties I would take official notice of the
Board's Order in the prior case, issued the previous week,
and considered myself bound by the findings and
conclusions of Administrative Law Judge Ross, as adopted
by the Board. Respondent's counsel objected to the taking
of official notice of the prior proceeding on grounds of
hearsay and relevancy-that the issues raised in the prior
case were not involved herein. Moreover, Respondent
contends lack of due process because of my failure to
announce at the commencement of the hearing what
findings of violations in the prior case I would consider
relevant in the present case. I explained to the parties that,
until a full record was made herein and I had an
opportunity to examine the complete record, no predeter-
mination would be made as to the relevancy of any of the
violations found in the prior case . It should be noted that
both counsel for General Counsel and Respondent were
the opposing advocates in the earlier proceeding.
Respondent's counsel, in his brief, reiterates that the
decision in Case 7-CA-9107 is not relevant; that it dealt
with issues and facts not present in the instant case, and
that issues in that case are closed . Although the issues in
the present case are limited, i.e., were the discharges of the
Thomas brothers, or either of them, unlawful, the findings
of the unlawful conduct made. in the earlier case may
appropriately be considered as substantial evidence, as well
as background,) in determining the legality of the specific
discharges herein, particularly because, in point of time,
the conduct in both cases occurred over a period of 8 days.
Thus, they are deemed relevant to, but by no means
conclusive as to the issues of whether the Respondent was
influenced in whole or in part by antiunion considerations
in effecting the discharges of the Thomas brothers.
I N. L. R. B. v. Harrah's Club, 403 F.2d 865 (C.A. 9), remanding on other
grounds 158 NLRB 758; N.L.R.B. v. American Art Industries, 415 F.2d 11223
FINDINGS OF. FACT
1087
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Delaware corporation, maintains its
office and place of business in Detroit , Michigan , where it
is engaged in the retail, sale, and distribution of new and
used automobiles, and automobile parts and in the
rendering of automotive service . During the year ending
December 31, 197.1, a representative period, Respondent's
gross revenue derived from its retail sales exceeded
$500,000. For the same period, Respondent purchased and
received at its location in Detroit , Michigan, directly from
points outside the State goods valued in excess of $50,000.
On the foregoing admitted facts , the Respondent
concedes , and I find , that it is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Preliminary Statement and the Prior Proceeding
The complaint alleges the Respondent 's unlawful dis-
charges of Ernest and Willie Thomas on November 18 and
23, 1971, respectively ,2 because of their activities in behalf
of the Union . The Respondent 's defense is that Ernest
Thomas was discharged for violating company policy by
punching out Willie Thomas ' timecard and Willie Thomas
was discharged because he had been arrested by the
Detroit police for driving without a driver 's license and was
no longer of any value to Respondent as a porter.
The following findings, relevant to the instant case, were
made by the Board in Case 7-CA-9107. On November 15,
1971, shortly after the inception of ,the Union's attempts to
organize the Respondent's garage and service department
employees , Respondent unlawfully discharged three em-
ployees, Glycie Redmond, Robert Lewis Brown, and
Ernest Woodward in violation of Section 8(a)(3) of the Act
because they engaged in union activity. The Board further
found that employees were unlawfully interrogated con-
cerning their union activities by General Manager Norbert
Dueck on November 15 and 16 and that President Harold
Claborn on November 19 threatened to close the business
if the Union became the bargaining representative. Ernest
Thomas had been unlawfully interrogated by Dueck on
November 15 and Willie on November 16.
B. The Discharge of Willie Thomas
1. The General Counsel's case
Willie Thomas had been employed from April 1971 until
his discharge on November 23 as a porter in the service
department under Al Holden , the department manager.
His brother , Ernest, of whom there is more below , also was
employed in the service department as a porter during this
(C.A. 5).
2 All dates referred to hereinafter are in 1971.
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
same period. Respondent also employed two other porters,
one each in the used-car and bump (body) shop, respec-
tively. Willie and Ernest Thomas worked under the direct
supervision of Al Holden. The other two porters received
their orders from their respective department managers.
Although the porters normally received their orders from
their respective managers, occasionally they performed
work for other departments, as needed.
The duties of the service department porters included
cleaning of new cars, cleaning of the department premises,
checking in new cars, taking customers home and bringing
their cars back to the shop for servicing, moving cars
between the service department and the customer lot or
bump shop, and running errands to other places such as
the Six Mile Road lot, the Secretary of State's office, or the
American Motors headquarters.
On October 21, Willie Thomas' driver's license was
suspended for a year as a result of an accident in his
private car. He testified that immediately after his license
was suspended, he told General Manager Dueck that he
had lost his license for a year and showed him the court
order which disclosed this information. (G. C. Exh. 3.)
Dueck looked at the court order and told him, "Well, we're
going to let you stay on because you do pretty good work,
but there will be no transferring of customers back and
forth home and no more checking in cars at Six Mile."
At this juncture, it is appropriate to describe Respon-
dent's physical properties. The sales and service depart-
ments are located at 20255 Grand River, on the west side
of the street. The first intersecting street to the north is
Kentfield. The service department entrance is located on
Kentfield. Across the street from the service department
entrance, on Kentfield, is the used-car lot. Beyond the
used-car lot and further north on Grand River is the new
car lot. The next street north of Kentfield, also running in
an easterly-westerly direction, is Stout Street. The bump
shop is located on Stout Street near Grand River.
Willie Thomas testified that after his license was
suspended, he continued to perform all the duties previous-
ly performed except for driving vehicles away from the
Respondent's physical properties. Thus, he continued to
take cars to and from the garage to the customer parking
lot and to and from the bump shop. This of course meant
that he continued to drive on the public street for at least
one block.
As previously found by the Board, on November 16, the
day- following his discharge of Redmond, Brown, and
Woodward, General Manager Dueck coercively interrogat-
ed Willie Thomas whether he signed a union card and,
Willie admitted he had done so.
The last day Willie Thomas worked was November 17.
He testified that in the late afternoon he was told by
Holden to get the keys from up front and to move a
customer car from the curb on Grand River by the service
and sales departments to the bump shop located on Stout
Street. As he pulled away from the curb on the public
street, an unmarked police car followed him, so he drove
around the corner and, into the service garage. Upon
disclosure to the police that he did not have a driver's
license , he was arrested and taken to the precinct . He later
received a sentence of 5 days and a $50 fine. He was
released the afternoon of November 22. Upon reporting.
for work the morning of November 23, he noted his
timecard was not in the rack. He asked Al Holden whether
or not he was still employed. Al told him he did not know;
he should come back later and talk to Dueck. He returned
later and approached Dueck on the sales floor. At that
point, Claborn came up and told Willie to turn in his
uniforms and pick up his check at the cashier counter.
Testimony was adduced by the General Counsel through
DeVere Boyd which makes suspect the circumstances
under which Willie Thomas was arrested . by the Detroit
police on November 17. Boyd, during the relevant period
herein , had been the used -car manager and had also
testified in the hearing in Case 7-CA-9107. Called as a
witness for the General Counsel in the present case, Boyd
testified that on November 17, in the early afternoon, two
policemen in an unmarked car came to the parking lot.
One policeman asked him if he knew Willie Thomas and
then inquired where Claborn could be located. Immediate-
ly upon their departure, he called Dueck over the Terry
phone (a public address system connecting the various
departments) and told Dueck the police were on their way
to the office to see Claborn about Willie Thomas. Shortly
thereafter, according to Boyd, Claborn called back over
the Terry phone and told Boyd not to say anything to
anyone that the police were looking for Willie. Both Dueck
and Claborn deny these conversations. The Respondent
called William Crawford , the arresting officer , as a witness.
Crawford testified that he came on duty at 3 p.m. and that
he had not been at the used-car lot earlier that day. Nor
had he seen or spoken to Boyd. His testimony revealed that
he had been on routine patrol when he picked up Willie.
He testified that because of the manner in which Willie
pulled out in front of him from the curb, he signalled him
down. Willie was then charged with operating a vehicle
without a license , the more serious offense .3 Boyd also
testified he had been told by Holden on either November
15 or 16 that he [Holden] had been told by Dueck to fire
his porters because they signed union cards. Holden was
called as a Respondent witness and , although he testified
at length on other matters , he was not questioned as to this
conversation . Boyd' s testimony , in this regard , stands
uncontradicted. Boyd further testified that in the evening
of November 17, after Willie had been arrested, Dueck
told him Claborn had called the police to have Willie
arrested while under suspension and he was being fired for
this reason. Dueck denied such conversation. I credit Boyd
regarding Holden's conversation with him on either
November 15 or 16, described above, not only because it
stands uncontradicted, but because it comports with the
other events that took place at that time , the discharge of
Redmond, Brown, and Woodward and the coercive
interrogation . However, despite the suspicious circum-
stances surrounding Willie's arrest , I am not convinced
that Claborn conspired with the Detroit police. Under the
3 Although the General Counsel offered Boyd's testimony in this record does not support a finding that Officer Crawford was part of a
connection apparently to show Respondent was setting Willie up for an conspiracy to cause Willie Thomas to be arrested for driving while under
arrest , I find no basis for not crediting Crawford and, accordingly, the suspension.
CLABORN AMERICAN, INC.
circumstances, I am not persuaded that Dueck made the
admission of unlawful motivation to Boyd on November
17 concerning Willie's discharge or that Claborn cautioned
Boyd not to disclose that the police were looking for
Willie.4
2. Respondent's asserted reasons for the discharge
of Willie Thomas
Respondent's counsel, in his brief, contends that Willie
Thomas was discharged because he had been arrested by
the Detroit police for driving without a license and was no
longer of any value to Respondent as a porter. He states
that Respondent's only mistake was in allowing Willie to
drive an automobile, and that Willie's only mistake was in
getting caught. I would agree that these two so-called
mistakes by themselves do not add up to the unlawful
motivation in effecting the discharge, but more appears in
the record to be considered.
According to Dueck's recollection, Willie told him the
suspension was only for 2 or 3 weeks. He was not shown
the court order which, on its face, showed the suspension
was for 1 year. He conceded he told Willie he was a good
man and could stay on, but he also told Willie he was not
to drive company or customer cars on the public highways.
Dueck testified he notified the other management officials
of the suspension and that Willie was not to drive vehicles.
Both Holden and Claborn acknowledged that they were
told by Dueck of Willie's suspension but understood it to
be only for a short time. Dueck stated on one or two
occasions he caught Willie driving and reprimanded him
but took no further action. Holden testified on direct
examination that he had been told by Dueck that Willie
was to do no driving, but, later in his testimony, this was
somewhat diluted. He said Dueck told him, "That Willie
had temporarily lost his license and that he was restricted
to working in and around the building, and that he was not
to be sent with customers or to the Secretary of State and
so on which had been his regular procedure." As to
whether anything else was said by Dueck, he responded,
"No, to my knowledge." Neither Holden nor Dueck
claimed responsibility for Willie's termination. Claborn
testified the decision was his. He related that Dueck told
him Willie had lost his license for about 2 weeks and he
condescended to retain Willie because he was a good
employee, but he was to do no driving. Claborn's reason
for discharging Willie, in his words, were, "Well, Willie had
no driver's license and due to the fact that he had been'
picked up by the police and his license was revoked, I
couldn't use him around there."
3. Conclusions as to discharge of Willie Thomas
Respondent's witnesses attempted to show, as described
above, that Willie was prohibited from driving cars at all
on the public streets and that Willie was told of this
restriction. I do not agree this to be the fact. I credit.
Willie's version of the instructions received from Dueck,
limiting the restriction to areas away from the immediate
environs of the Respondent's physical properties. As he
4 To the extent that Boyd's testimony is credited only in part, it is done
upon the evidentiary rule that it is not uncommon to believe some, if not
1089
testified, he continued to drive cars between the service
shop, the bump shop, and the car lot without any objection
from supervision. I do not credit Dueck's testimony that he
caught Willie driving on one or two occasions and
reprimanded him. I find it difficult to believe that Willie,
who appeared to be a credible witness, and as Respondent
concedes, a good employee, would have driven the cars
without authorization from a supervisor, as reflected in the
events of November 17. If Dueck had objected to Willie
driving when he allegedly caught him, he likely would have
reprimanded the supervisor who gave him the instructions
or, at the very least,-asked Willie if anyone had given him
permission to drive. Nor-would he have permitted Willie to
move the car on November 17.
Holden, in relating the events of November 17, initially
testified that to the best of his knowledge, he did not give
orders to Willie to move the car. But, later in his testimony,
he said Dueck told him a car at the curb in front was to be
moved to the bump shop. He called for a porter on the
public address system. When the porter appeared, he told
him what had to be done and sent him to Dueck for the
keys. Grudgingly, he conceded that Willie was the porter
who appeared. If in fact Willie was prohibited from
driving, Holden, who, was aware that the job required
driving on the public street, would immediately have told
Willie he was not the man for the chore when he appeared
on the scene. Instead he was sent on to Dueck. He
obviously was cleared up front also because he obtained
the keys. Under the circumstances, I conclude that during
the period of Willie's suspension while in Respondent's
employ, he continued to drive cars between the service
shop, the car lot, and the bump shop, and this under the
authorization and direction of the supervisory hierarchy.
Moreover, Willie could not have continued performing this
part of his work without the knowledge of Claborn.
But such finding is hardly diapositive of the basic issue of
motivation. One sharp conflict in the testimony concerns
the length of time of the suspension Willie reported to
Dueck. Willie said he told Dueck it was for 1 year and
showed him the court order. Dueck denies being shown the
court order and recalls being told it was for 2 or 3 weeks.
Respondent's counsel urges that it was very unlikely that
Willie would have been kept for a period of 1 year as a
porter without being able to drive cars. Between the two
versions, I feel compelled to credit Willie Thomas and find
he told Dueck the suspension was for 1 year and showed
him the court order. This credibility resolution is based
upon the pertinent testimony of the witnesses as well as
their demeanor while testifying. It must be remembered
that the Respondent employed three other porters, one of
whom also worked in the service department, capable of
driving cars any distance away from the immediate area.
Moreover, Respondent intended that Willie continue
driving in the immediate area, together with performing the
various other duties related to the porter position. I must
also note that Willie was considered a good employee. But,
after his arrest, according to Respondent, he was of no
further use. We then turn to the question whether, absent
union considerations, Willie would have been retained
all of a witness 's testimony ." N.L.R.B. v. Universal Camera Corp., 179 F.2d
749, 754 (C.A. 2).
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
upon his return on November 23. Keeping in mind that
three employees in the bump shop had been discharged on
November 15; that Ernest Thomas was discharged on
November 18, and that Respondent had engaged in
coercive interrogation and threats within the last week,5 the
motive for the termination of Willie becomes suspect. But
suspicion itself is hardly sufficient to support a finding of
unlawful motivation. On the other hand, despite valid
reasons for discharge, if the exercise of such right is tainted
with a discriminatory motive, a violation may be found .6
An interesting response was elicited from Dueck, on
cross-examination, when asked how Willie was less
valuable to Respondent on November 23 when he reported
for work as compared to October 21, the date of the first
notice received by Respondent of the license suspension.
Dueck stated:
In no way at all. Equally valuable on both days. But
why was he. less valuable now? Because he had been
arrested by the precinct just a block up the street. He
had been told not to drive and went against my wishes,
and therefore, I , obviously couldn't control the man.
There was no insurance on a man driving a car without
a driver's license.
Such reasons do not ring true. As stated above, Willie
Thomas was authorized by and continued to drive on the
public streets within the immediate environs of the
Respondent's physical properties. Such conduct was not
against Dueck's wishes but, on the contrary, indicated
Willie was in fact performing what he was told to do. It
may be that Respondent's insurance did not cover Willie's
driving during the suspension period, but this would have
been true before as well as after his arrest.
For all the foregoing reasons and the entire record, I am
persuaded and find that Respondent's claimed reasons for
the discharge of Willie Thomas were pretexts to veil the
real reason for the termination, namely his union advocacy
and Respondent's attempts to rid itself of union adherents
because of its union animus.? I conclude that the discharge
was in violation of Section 8(a) (3) and (1) of the Act.
C. The Discharge of Ernest Thomas
Ernest Thomas, like his brother, Willie, worked as a
porter in the service department from April 1971 until his
discharge on November 18. In Case 7-CA-9107, the Board
found he was coercively interrogated by Dueck on
November 15 as to whether he had signed a union card.
Ernest admitted he had signed the card.
Ernest Thomas was discharged on the morning of
November 18. He had punched out his brother's, Willie's,
timecard the previous evening. The General Counsel's
position is that this incident served only as a pretext and
the true reason was his union activity. Respondent, on the
other hand, contends Ernest was discharged for violating
5 Case 7-CA-9107.
6 N.L.R. B. v. Murray -Ohio Mfg. Co., 326 F.2d 509,.517 (C.A. 6);
N.L.R.B. v. Challenge -Cook Brothers of Ohio, Inc., 374 F.2d 147, 152 (C.A.
6).
r Redmond , Brown, and Woodward on November 15; Ernest Thomas
on November 18 (more about him below ), and Willie Thomas on November
23. Respondent introduced evidence to show that the six other employees
whose names were furnished by the Union to the Respondent as being
union adherents were not discharged for union activities . However, as we
company policy with regard to punching other employees'
timecards.
It is undisputed that Ernest indeed punched out Willie's
timecard the previous evening. Willie had been arrested by
the police late that afternoon, somewhere between 4 and
4:30 p.m. Ernest testified that when he. finished work that
day, he noticed that Willie's card was still in the rack. As
related by Ernest, "So I punched my card out and then I
took his and punched his out because he wasn't there. He
was in jail. He had called me that he couldn't get out, so I
just punched his card out too." The next morning he was
told by Holden he was discharged. He said he didn't work
at all on November 18. In this he was mistaken. The
timecard introduced in evidence shows he worked most of
Thursday morning, November 18. Both Ernest and Willie
deny that they were ever accused of or warned about
punching out another's timecard. Nor had either of them
punched the other's timecard previously. Both normally
came to work together and left together at the end of the
work day.
The testimony of Respondent's witnesses was presented
to show that the Company had a rule against punching
another employee's timecard and that infractions of this
nature called for a discharge. Although Dueck disclaimed
any participation in the decision to discharge Ernest, he
testified that employees had been punching timecards of
other employees and therefore, shortly after he became
service manager in January 1970, "we may [sic] it a hard
and fast rule that any employee that punched a card for
another employee was automatically dismissed."8 Despite
this alleged hard and fast rule in existence for almost 2
years, no disciplinary action was ever effected for infrac-
tions until November 18. Dueck testified as follows, "Ernie
and Willie use [sic] to punch each others timecards
depending upon who came in first. The first man in the
morning would punch the other man's card, and then the
last one to leave at night punched the other man's card. In
other words, if one man were to leave at five and the other
one at five-thirty, he'd punch both cards." He went on to
say he spoke to the Thomas brothers and other employees
as well about infractions but didn't know of anyone
violating the rule as much as the Thomas brothers. Despite
all his testimony about this so-called rigid rule and his
alleged knowledge of numerous infractions, particularly by
the Thomas brothers, it was not until November 18 that the
first disciplinary action-Ernest's I discharge-was taken
for such offense.
Holden testified he discharged Ernest. According to
Holden, as a regular procedure he collects all the timecards
on Thursday mornings .9 On this particular Thursday
morning, November 18, he noticed both Ernest and
Willie's timecards were punched out at the same time. To
quote Holden's testimony, "I took the time cards up into
have been repeatedly told, "... it is established that a discriminatory
motive, otherwise established, is not disproved by an Employer's proof that
it did not weed out all Union adherents." Nachman Corp. v. N.LR.B., 337
F.2d 421 (C.A. 7), citing N. L. R. B. v. Shedd Brown Mfg. Co., 213 F.2d 163,
174-175 (C.A. 7); N. L. R. B. v. Nabors, 196 F.2d 272, 276 (C.A. 5).
8 The Thomases did not begin their employment until more than a year
later in April 1971. Dueck became general manager on May 1, 1971.
9 Wednesday night is the end of the pay period.
CLABORN AMERICAN, INC. 1091
the office to Mr. Claborn and Mr. Claborn because of the
company rule says you don't have anything to do but to
fire Ernie, you know, for punching out the other time
card." Thereupon Holden discharged Ernest. ,Initially in
Holden's testimony on direct examination, he said he had
warned Ernest about 1 month prior to this incident about
punching another's timecard:10 He had also warned others
about committing this infraction but no discharges were
effected because such infractions were not repeated.
However, on cross-examination, he said he warned Ernest
at least twice regarding punching in someone else-this
during the approximate 6-week period he was service
manager. His testimony later in cross-examination was
embellished with further revelation that both Willie and
Ernest would take turns in punching the other's timecard.
His testimony was that he would have discharged other
offenders if he could have proved the act was committed,
but all he had to go on was a strong assumption.
Claborn's .testimony .is not in accord in significant
respects to that of Dueck and Holden. Contrary to
Holden's version that he had contacted Claborn regarding
the timecards, Claborn testified that, about 10 or 10:30 on
the morning of November 18, he asked Holden to bring in
the timecards, "because I knew Willie had been picked up
by the police and I wanted to look at his timecard to see
what time he punched out." When he observed that
Ernest's and Willie's cards were both punched out at the
same time, "I told Al to check with him [Ernest] and he'd
have to fire him." On cross-examination, with respect to
company policy and its enforcement, Claborn testified as
follows:
Q. All right. With respect to Ernie, you made the
decision on the eighteenth of November, right, the day
after Willie was picked up?
A. On the eighteenth. That's correct.
Q. Have you ever previously personally given
instructions that somebody should be fired for punch-
ing out somebody else's card or having his card
punched out by somebody else?
. A. All department heads know that. As far as
actually some concrete evidence, no, I have not had
this happen before.
Conclusions
The issue boils down to a question of whether or not the
termination of Ernest Thomas was because of his union
activities and the fact that he had punched out his brother
Willie's timecard served only a pretext for the termination.
Ernest readily admitted to having punched out Willie's
card. He knew that Respondent was aware Willie had been
taken to the precinct more than an hour before and it
seems apparent he was not attempting to falsify Willie's
time. I am persuaded Respondent purposely examined
both timecards, hopefully to find that Willie's timecard
was punched out by Ernest, conscious of the manner in
which Willie was forcefully taken from Respondent's
premises the preceding afternoon. Discovering both cards
were punched out at the same time, Respondent then
invoked its so-called hard and fast rule for the first time as
a basis for Ernest's discharge. I am convinced Respondent
was looking for an excuse to terminate Ernest. Contrary to
Holden's denial, I cannot believe he was unaware of the
union membership of the Thomas brothers at that time. As
service department manager, he must have been aware of
the events that took place that week. Within the preceding
3 days, 3 employees had been discharged for their union
activities, the 2 Thomas brothers admitted to Dueck they
had signed cards and the Respondent had received letters
from the Union, one requesting recognition, and the other
naming 11 employees, including the Thomas brothers as
"co-chairmen of our organizing committee."
I do not doubt that Respondent did not look with favor
upon employees who punched out other. employees'
timecards. But the record shows that despite the existence
of such rule, it was not a hard and fast rule calling for
automatic discharge as Respondent would have it appear.
Testimony of Respondent's witnesses was to the effect that
other employees had committed such offenses, as did the
Thomas brothers in the past. As to why no disciplinary
action had ever been taken heretofore, Holden said all he
had to go on was a strong assumption that the offenses
were committed but no proof. Dueck likewise said it was a
hard thing to prove. Claborn said no concrete evidence
existed before. These reasons do not ring true and are
given no credence. It is hardly likely, particularly in an
unorganized facility as we have here with no contractual
grievance procedure, that a supervisor who strongly
believed an employee guilty of this offense would decline
to take any action simply because of lack of concrete proof
or of an outright confession of guilt. It is clear that
Respondent's witnesses, with added strokes while testify-
ing, attempted to paint a picture of the Thomas brothers as
the most grievous offenders of the rule. Holden first said he
warned Ernest one time previously; this was later changed
to twice; and finally the point was reached in his testimony
where he portrayed both. Thomases as. taking turns in
punching the other's timecard. Then we have Dueck who
expressed so much concern at violations of this nature'
while he was service department manager that he an-
nounced the rule in January 1970 calling for automatic
dismissal for this offense. But yet he said violations
continued and the Thomas brothers were the greatest
offenders, punching the other's timecard in the mornings
and in the evenings. Despite these continued infractions,
no disciplinary action was taken against any employee
until November 18. It will be remembered that Respondent
retained Willie Thomas after his driver's license was
suspended on October 21 because he was regarded by
management as a good employee. It is unlikely he would
have been considered a good employee if he, as well as
Ernest, were derelict in punching timecards.
I was more favorably impressed by the sincerity in which
Ernest Thomas testified and credit his testimony that he
had never punched another employee's timecard in the
past and had never been warned about it.11
In. light of the foregoing, I am convinced and find when
Respondent discovered Ernest Thomas had punched out
10 Holden was promoted from assistant service. manager to service 11 In this connection, I credit Willie Thomas' testimony to the same
manager on about October 1. . effect.
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his brother Willie's timecard, it seized upon this as a
pretext to discharge him for his union activities. The object
of this conduct was to discourage activity in behalf of the
Union and violates Section 8(a) (3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact , conclusions of law,
and the entire record , and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 12
The activities of the Respondent set forth above,
occurring in connection with its interstate operations, have
a close, intimate, and substantial relation to trade, traffic,
and commerce among the several States, and tend to lead
to labor disputes burdening and obstructing commerce and
the free flow thereof.
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, I will recommend that it be
ordered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the
Act. As it has been found that the Respondent discrimina-
torily discharged Ernest Thomas and Willie Thomas, it will
be ordered to offer immediate reinstatement to their
former positions or, if they no longer exist, to substantially
equivalent positions, without. prejudice to their seniority or
other rights and privileges, and make them whole for any
loss of earnings they may have suffered in consequence of
their unlawful discharges, by payment to each of them of a
sum of money equal to the amount he normally would
have earned from the date of his discharge to the date of
Respondent's offer of reinstatement, less his net earnings
during such period, to be computed in the manner
prescribed in F. W. Woolworth Company, 90 NLRB 289, and
Isis Plumbing & Heating Co., 138 NLRB 716. Respondent
shall also be required to make available to the Board or its
agents, all necessary records to determine the amounts of
backpay due.
The Order shall also provide for the usual notice posting.
Upon the foregoing findings of fact and upon the entire
record, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
and in operations affecting commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discharging Ernest Thomas and Willie Thomas
on November 18 and 23, 1971, respectively, and thereafter
failing and refusing to reinstate them to their former
positions because of their support for the Union, the
Respondent has engaged, and is engaging, in unfair labor
practices within the meaning of Section. 8(a)(3) and (1) of
the Act.
4. The aforesaid unfair labor practices are unfair labor
12 In the event no exceptions 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.
Respondent, Claborn American, Inc., its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in and activities in behalf
of Motor City Mechanics Lodge No. 698, International
Association of Machinists and Aerospace Workers,
AFL-CIO, or of any other labor organization, by discrimi-
nating in regard to hire or tenure of employment or by
discriminating in any other manner in regard to any term
or condition of employment, in order to discourage
membership or activities therein.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights to self-
organization, to form labor organizations, to join or assist
Motor City Mechanics Lodge No. 698, International
Association of Machinists and Aerospace Workers,
AFL-CIO, or any other labor organization, to bargain
collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection,
or to refrain from engaging in such activities, except to the
extent that such rights may be affected by an agreement
requiring membership in a labor organization as a
condition of employment, as authorized by Section. 8(a)(3)
of theAct.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer to Ernest Thomas and Willie Thomas,
immediate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges enjoyed, and make them whole for
any loss of pay they may have suffered as a result of the
discrimination against them as set forth in the section of
this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze and determine the amounts of
backpay due under the terms of this Order.
(c) Post at its service department and bump shop in
Detroit, Michigan, copies of the attached notice marked
"Appendix." 13 Copies of the notice, on forms provided by
the Regional Director for Region 7, after being duly signed
by an authorized representative of the Respondent, shall
be, posted by the Respondent immediately upon receipt
thereof, for a period of 60 consecutive days, in conspicuous
13 In the event that the Board 's 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 Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
CLABORN AMERICAN, INC.
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to insure that the notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 7, in writing,
within 20 days from the date of this Order, what steps the'
Respondent has taken to comply herewith.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had the chance to give
evidence, the National Labor Relations Board has found
that we violated the National Labor Relations Act, and we
have been ordered to post this notice and carry out what it
says.
The National Labor Relations Act gives you, as an
employee, these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representa-
tive of your own choosing
To act together with other employees to
bargain collectively or for other mutual aid or
protection; and
If you wish, not to do any of these things.
Accordingly, we give you these assurances:
WE WILL NOT do anything that interferes with any of
your rights listed above.
WE WILL NOT discourage union activity or member-
ship in Motor City Mechanics Lodge No. 698,
1093
International Association of Machinists and Aerospace
Workers, AFL-CIO, or any other labor organization
by discriminating against you if you choose to engage
in union activity or join that Union or any other union.
Since it was decided that we violated the Act by
discharging Ernest Thomas and Willie Thomas because
they engaged in union activity, WE WILL offer them full
reinstatement to their former jobs, and WE WILL pay
them for any loss they suffered.
WE WILL respect your rights to self-organization, to
form, join, or assist any labor organization, or to
bargain collectively in respect to terms or conditions of
employment through Motor City Mechanics Lodge No.
698, International Association of Machinists and
Aerospace Workers, AFL-CIO, or any representative
of your choice, or to refrain from such activity, and WE
WILL NOT interfere with, restrain, or coerce our
employees in the exercise of these rights.
Dated By
CLABORN AMERICAN, INC.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, 500 Book Building, 1249
Washington Boulevard, Detroit, Michigan 48226, Tele-
phone 313-226-3210.