Kawasaki Motors Corp.

National Labor Relations Board - Board Decisions

Aug 31, 1977

231 N.L.R.B. 1151 (N.L.R.B. 1977)

KAWASAKI MOTORS CORPORATION
Kawasaki Motors Corporation USA and International
Union, Allied Industrial Workers of America,
AFL-CIO. Cases 17-CA-7357 and 17-CA-7423
August 31, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
On March 28, 1977, Administrative Law Judge
James L. Rose 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 and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The Administrative Law Judge found the discharge
of DuPont on October 7 and of Rumbaugh on
October 8 to be discriminatory and the incidents of
surveillance of union meetings thereafter on October
21 and in November to be an 8(a)(1) surveillance.
We do not agree, and we shall dismiss the complaint
in its entirety.
Although, as the Administrative Law Judge found,
Respondent had knowledge of Rumbaugh's union
sympathies at least since August 1976 through
Personnel Manager Summers, the latter's recommen-
dation to discharge the two alleged discriminatees on
October 6 because of the pact to punch each other's
timecards was decided upon, without knowledge of
specific names of the employees involved, based on a
hypothetical question. In response to the question by
Warehouse Foreman Dunlap, Summers identified
the problem as constituting a violation of company
rule 2, labeled it a "terminable offense," I and only
then inquired who was involved.
The incident that prompted the hypothetical
question had occurred on the morning of October 6.
Arriving for work about 7:05 a.m., Foreman Dunlap
was advised by his secretary that Rumbaugh, one of
four forklift operators in the warehouse, had not yet
reported in. Thereafter Dunlap, in the course of
consulting timecards for a timestudy report, noticed
that Rumbaugh's card showed him as having been
t The rules as printed provide as follows:
Disciplinary action will be taken for any of the following work rules:
. . .#2 Falsification of records or misrepresentation about
material information.
... DISCIPLINARY ACTION Discipline may take any of the
231 NLRB No. 186
punched in at 6:50 a.m. 2 When Rumbaugh actually
arrived about 7:25, Dunlap confronted him and
asked for an explanation of the fact that his timecard
showed him as having arrived at 6:50. Rumbaugh
explained that DuPont, another forklift driver, had
probably punched him in because his (Rumbaugh's)
forklift "was gone." Later that morning Dunlap
confronted DuPont, who admitted he had punched
Rumbaugh's card "in" stating, however, that he had
assumed that Rumbaugh was already at work.
The Administrative Law Judge found the reasons
for the discharge pretextuous partly because of an
"established practice" of forklift operators to punch
each other in and out due to the at least 300-foot
distance from the timeclock to the location where
they normally parked their forklifts, and that this
commonplace practice among the four forklift
drivers could not have escaped their supervisor's
attention. Contrary to the Administrative Law Judge,
however, our reading of the record discloses that
punching each other's timecards in and out was not
common practice to a majority of the employees who
testified. Of the four warehouse employees, only
DuPont and Rumbaugh so claimed. One other
employee testified he had been asked to do so twice
by DuPont and Rumbaugh and had done so the first
time but had refused the second time-because
timecards were "their own responsibility." An
employee in another plant department testified that
around September he had started to punch out for a
fellow employee, but was stopped by his supervisor
about 20 feet short of the timeclock and was asked
what he was planning to do with both timecards. The
employee testified he first tried to lie out of it, but
finally admitted he intended to punch out both:
whereupon the supervisor told him "don't do it,"
"that will get you a one way ticket out of here." This
testimony was corroborated by the supervisor in
question. We note, moreover, that on the past
occasions when punching another employee in had
occurred it had only been when the employee doing
this for another employee or employees knee that the
others were already in the plant-contrary to the
facts in the instant case. Here, DuPont merely
assumed that Rumbaugh was on the premises, when
in fact he was not because he had overslept, as
confirmed by employee Niederkofler who carpooled
to work with Rumbaugh.
In the circumstances, we view Respondent's rule 2
on falsification of records as one clearly applicable to
what transpired here; a falsification which would
following forms, depending on the seriousness of the offense and/or the
number of times of occurrence: (a) Verbal Warning. (b) Wntten
Warning, (c) Suspension, (d) Discharge.
2 The scheduled starting time for warehouse employees was 7 a.m.: the
employees were instructed not to clock in more than 10 minutes earl.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
result in Rumbaugh being paid for 25 minutes of
working time during which he was not even on the
premises to carry out his usual duties. See Deven
Lithographers, Inc., 224 NLRB 648 (1976), where an
employee was terminated for having someone else
punch out his timecard and the Board declined to
find it discriminatory though he had in the past acted
as a union observer. Inasmuch as employee DuPont
actually violated the rule and employee Rumbaugh
was the party beneficiary, we find that both discharg-
es, made in furtherance of Respondent's policy to
have its records accurately maintained without
misrepresentation of material facts, were discharges
for cause. The termination letters given the two
employees characterized their action as a deliberate
attempt to financially defraud the company which, in
our view, it was. Accordingly, we shall dismiss the
8(a)(3) allegations.
With respect to the surveillance issue, it appears
that Supervisor Ebers drove through a Ramada Inn
parking lot on October 21 looking for cars with
company parking stickers, at a time when a union
meeting was being held there. It also appears that,
during November, Ebers stopped on the way home
for a drink at a Holiday Inn at a time when
employees were holding a meeting at that motel,
apparently with the Board agent. Respondent con-
tends that Ebers was a new supervisor who, in the
first instance, was motivated only by personal
curiosity, and that the second was coincidental in
that Ebers was at the bar only because he had
stopped for a drink and the location was directly on
his way home, without having any knowledge that
plant employees would be meeting there. As to that
incident employee Meisinger testified that he had
started into the bar for a drink and, upon seeing
Ebers there, instead went downstairs to the meeting
room. Ebers had "no recollection" of any employee
confronting him in the bar. Although both instances
constituted surveillance and/or the impression of it,
we shall dismiss the complaint with respect to them
in view of the notice posted by the Respondent in its
plant about November 20. This notice disclaimed the
actions of Supervisor Ebers and assured the employ-
ees of their right to join or not to join the Charging
Union, or any union, without supervisory interfer-
ence. In our view, this voluntary posting by the
Respondent was adequate to expunge the ill effects
normally incident to surveillance activities of this
sort. Accordingly, we shall also dismiss the 8(a)(l)
allegations of the complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the complaint herein
shall be, and it hereby is, dismissed in its entirety.
CHAIRMAN FANNING, dissenting:
I would affirm the Decision of the Administrative
Law Judge.
With respect to the October 6 timecard incident,
out of which the two 8(a)(3) discharges arose, I
would make the following comments. Respondent's
use of the new warehouse facility began only about 3
months before the incident in question. The ware-
house has no timeclock of its own. Only the four
forklift drivers were required to clock in and out,
clerical employees were not required to do so.
Because of the distance from the location of the
parked forklifts to the separate building wherein the
timeclock was housed, the forklift drivers had been
permitted to park their autos near the forklifts and
then ride the forklifts to the timeclock. Out of this, as
the Administrative Law Judge found, grew "a
common practice at least to punch each other out in
the evening." Occasions where one driver did this for
the other three are in evidence. In effect, clocking out
for another driver or drivers saves some worktime
and some forklift use.
DuPont had clocked Rumbaugh in on a previous
occasion when Rumbaugh, though present to Du-
Pont's knowledge, had forgotten to punch in his
timecard. Foreman Dunlap specifically testified that
his hypothetical question to Personnel Manager
Summers did not include "punching in even if that
employee was not actually at work," yet the
discharge letter to DuPont refers to "deliberately"
punching the card of Rumbaugh 25 minutes before
he reported for work, and the letter to Rumbaugh
refers to reporting 25 minutes late "without notifying
your supervisor and prompted another employee to
punch your time card before your actual time of
reporting." In fact, however, inasmuch as Rum-
baugh's forklift was missing from its usual parking
location, DuPont had every reason to assume, as he
had correctly done in the past, that Rumbaugh in
fact was at work but had forgotten to punch in his
timecard again.
Rumbaugh did not have a reputation for tardiness.
In fact Foreman Dunlap testified that Rumbaugh's
absentee record before coming to work in the
warehouse was "nothing out of the ordinary" and
there were only two instances of tardiness since
working in the warehouse-"maybe 5 minutes or so."
DuPont had never been tardy. Yet on the morning of
October 6 Dunlap's secretary-who did not testify-
advised him that Rumbaugh was not yet in. Dunlap
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KAWASAKI MOTORS CORPORATION
testified that she did not tell him how she became
aware of that fact, or why. He could not recall ever
instructing her to see if employees were there on time
and working. The question thus arises as to whether
Rumbaugh's known union sympathies played a part.
Not only had Rumbaugh been active in the abortive
Teamsters campaign some months earlier, but in
August he had discussed his union leanings with
Personnel Manager Summers (as Summers himself
admitted), and in September he had shown Dunlap a
cop)' of the Lincoln Gazette, containing an article on
the unionization of an area plant, observing that it
would probably be good for the employees. Dunlap
recalled this latter incident, as did other employees
who were nearby.
That Rumbaugh himself may have made an effort
not to be too obvious about his in-plant activities in
the then-current organizing drive by the Charging
Union, as contended by Respondent, is beside the
point. Rumbaugh's prounion stance was well known
apart from his current activity, which was substan-
tial. During a meeting in May between employees
and Rumbaugh's then supervisor, concerning em-
ployee cooperation, Rumbaugh raised the question
as to whether or not the proper employees were being
upbraided, inasmuch as he considered that they
(including himself) were the ones doing the most
work. In response to his question, the supervisor
walked over directly in front of him and asked: "Do
you or do you not agree that there is union
antagonism in this plant?" Moreover, in the ware-
house itself there were only four forklift drivers, all of
whom apparently discussed union leanings to some
extent with Foreman Dunlap; thus, at least, the
warehouse situation is closely analogous to a "small
plant" where Respondent's knowledge of an employ-
ee's union activity is easily inferred.
Before the workday ended on October 6, Dunlap
called the four forklift drivers together and told them
they were responsible for their own timecards, they
were not to punch each other in or out, and they
were no longer to ride their forklifts to the timeclock.
In effect he gave a verbal warning with specific
instructions with respect to timecard responsibility in
the future.
However, later that same day, Dunlap went to the
personnel office-"apparently to clarify whether he
acted correctly" as the Administrative Law Judge
concluded-put his hypothetical question, got a
"terminable offense" response, and finally revealed
who the employees were. The fact that he used a
hypothetical question and received a discharge
I Forklift operator Standley testified that Dunlap's secretary) had asked
him on a prior occasion if he knew whether Rumbaugh swas clocking in or
out for someone else, or if Bob (DuPont) was Standley testified he replied
that he did not know He could not recall when the event had occurred.
recommendation before Summers asked the names
of those involved-like the fact that Dunlap's
secretary had advised him that morning that Rum-
baugh was not in3 -strongly suggests that Respon-
dent was actively seeking a pretext to discharge
Rumbaugh because of his known union activity.
Moreover, Respondent's rule 2 on falsification of
records has been the subject of lesser discipline
imposed by the Respondent, as shown by its own
exhibits reflecting 1975 and 1976 instances. As
applied to a series of occurrences on four separate
days wherein an employee claimed to have done
more welding than he actually did, a 3-day suspen-
sion was the discipline imposed. For requesting time
off for a nonexistent dental appointment, a written
warning was the discipline. For leaving work on the
pretext of being ill, after receiving two written
reprimands regarding attendance-one of which
threatened termination if the employee's attendance
and attitude were not improved-an employee was
finally terminated. In all three cases, deliberate
falsification was involved. By contrast, in the instant
case both Rumbaugh and DuPont readily admitted
that DuPont had punched in Rumbaugh's timecard
in the belief that he was there at the time. There is no
evidence of an "arrangement" to do so to disguise
the absence of the other. Dunlap's incident report of
October 2 on Rumbaugh quotes the latter, when
asked why DuPont would have done such a thing, as
saying "it was agreed that since the time clock was
located so far away" from the work area that
whoever reported for work first would punch the
other in. The incident report of DuPont also gave the
distance from the timeclock as the reason for the
arrangement.
Thus, in my view, the pretext result reached by the
Administrative Law Judge here is well supported by
the record. It is noteworthy that Respondent's 28
rules contain some quite specific prohibitions, for
example: against gambling or fighting on company
property, or sleeping during working hours, but none
that specifically mentions timecards. In Deven
Lithographers, relied on by my colleagues, there was
a sign directly over the timeclock warning employees
about not clocking out for others. There was no such
sign here, in addition to the absence of any specific
mention of timecards in Respondent's own rules.
Nor is this the case of a timecard violation being
viewed by the Administrative Law Judge as a "minor
infraction" of the rules.4 Here there was no articulat-
ed rule on timecards; instead, there appears to have
been an established practice of the employees in the
I See also N.LRB. v. Agawam Food Marl, Inc., 424 F.2d 1045 (C.A. I.
1970). where the court observed that the company handbook warned about
misconduct with respect to timecards and viewed persistence in denying an
offense as magnification of it.
1153
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
warehouse, at least, punching out for others, a
practice apparently condoned by Respondent until it
bade fair to work to the advantage of a known union
adherent. But even judging this case simply as a
clear-cut violation of Respondent's rule 2 on falsifi-
cation of records, the Respondent has enforced it far
more rigorously in this instance than in other recent
applications, which in itself is indicative of discrimi-
natory intent. I would therefore affirm the 8(a)(3)
violations found by the Administrative Law Judge
and order the usual reinstatement and make-whole
remedy for the two 8(a)(3)'s.
As to the surveillance issue, I also agree with the
Administrative Law Judge that a simple posting of a
partial disclaimer does not remedy the 8(a)(1)
violations committed by Supervisor Ebers. Ebers
conceded that he did in fact go to the Ramada Inn
on October 21 and viewed the cars in the parking lot
to see how many employees from the company were
there for the union meeting. The record indicates
that he not only looked for company stickers on the
automobiles, but also in some instances opened the
doors and looked inside to try to determine to whom
the vehicle was registered. He made two passes
through the parking lot in this manner. My col-
leagues would dismiss this aspect of the complaint
because Respondent posted a notice concerning it,
and in their view this voluntary posting by the
Respondent was "adequate to expunge the ill effects"
of the surveillance. I strongly disagree. First, the
notice was not posted until slightly over a month
after Ebers' flagrant surveillance at the Ramada Inn.
Second, the notice was posted for only "about a
month" rather than the Board's normal 60-day
posting requirement-thus further diminishing its
effectiveness. However, there is a more basic flaw
present here and that is that, while Respondent
concedes that Ebers drove through the parking lot, it
asserts in its notice that he was not instructed to do
so and the Company therefore disclaimed any of
Ebers' actions. The notice went on to state that the
Company would not interfere with the employees'
rights to join or not to join a union, but-contrary to
any notice posted pursuant to Board Order-specifi-
cally stated that "we don't believe that these actions
. . .were coercive or illegal." (Emphasis supplied.)
Thus, in my view, the Respondent's ihotice utterly
fails to cure Ebers', and hence Respondent's,
admitted conduct or to adequately assure employees
of the protection from such activities in the future
which Board notices are intended to provide. I
therefore also dissent from my colleagues' dismissal
of the 8(a)(1) allegations of the complaint.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge: This matter
was heard before me on February 8 and 9, 1977, at
Lincoln, Nebraska, upon the General Counsel's complaint
which alleged that on or about October 6. 1976,1 the
Respondent discharged Gary Rumbaugh and Robert
DuPont in violation of Section 8(a)(3) of the National
Labor Relations Act, 29 U.S.C. § 151, et seq., as amended.
It is also alleged that Supervisor William Ebers engaged in
surveillance and/or created the impression of surveillance
of union activity on October 21 and November 10, in
violation of Section 8(aX I) of the Act.
Upon the record as a whole, including my observation of
the witnesses, briefs, and arguments of counsel, I hereby
make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. JURISDICTION
The Respondent is a corporation engaged in the
manufacture and sale of motorcycles and other recreation-
al vehicles. At its Lincoln, Nebraska, facility it annually
receives goods, products, and materials directly from
points outside the State of Nebraska valued in excess of
$50,000 and in turn ships directly to points outside the
State of Nebraska products valued in excess of $50,000.
Respondent admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent admits, and I find, that International
Union, Allied Industrial Workers of America, AFL-CIO,
is a labor organization within the meaning of Section 2(5)
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Factual Outline
In late 1975 several employees, particularly including
Rumbaugh, began discussing the possibility of seeking
union representation. They contacted a Teamsters local in
Omaha and began working with that union to solicit
authorization cards. However, this organizational cam-
paign aborted in the early spring of 1976 when the
employees determined that they did not want the Team-
sters to represent them. Within a couple months, employees
contacted the Charging Party and a second organizational
campaign commenced which continues to the present.
At least one meeting with union organizers was held in
May among employees. Authorization cards and other
literature were passed out at the plant gate by nonemploy-
ees, and throughout the plant by employees, normally one
in each department. The principal union proponent in the
All dates are in 1976 unless otherwise indicated.
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KAWASAKI MOTORS CORPORATION
warehouse was Rumbaugh, who testified that he passed out
between 100 - 200 authorization cards.
The warehouse, which is adjacent to the production
building, was opened for business in June. The employee
complement in the warehouse at that time, and through the
material period here, consisted of Roger Dunlap, the
foreman, and forklift operators Rumbaugh, DuPont, Tim
Pray, and Neil Standley. Working in the office of the
warehouse were four or five clerical employees.
In early August, Robert Summers was hired as the
personnel manager for manufacturing, with his first
working day Monday, August 15. In fact, however, he went
to the plant on Saturday, August 13, the day of the
company picnic, in order to get acquainted with some of
the employees.
On this day he first met Rumbaugh, who was involved
with directing the picnic. During their meeting Summers
asked Rumbaugh how he liked working for the Company.
Rumbaugh told him, in effect, that while he liked to work,
he did not get along too well with his supervisors. Summers
testified: "And he indicated that it was because he was
sympathetic to the union." Summers told him that such
should be no problem and, if he did his work, he would get
along all right.
On the morning of October 6, Rumbaugh, who alternat-
ed carpooling with Ronald Niederkofler, overslept. Nieder-
kofler called him a few minutes before 7 a.m. Rumbaugh
picked up Niederkofler and they went on to the plant
arriving at approximately 7:25 a.m.
Dunlap testified that he arrived for work on October 6
about 5 minutes or so after 7 and was at that time advised
by his secretary that Rumbaugh had not reported in.
Dunlap did not say or do anything about this information
and he went about his work, which included taking data off
the timecards for purposes of a timestudy report. It was at
this time he found that Rumbaugh's card had been
punched in at 6:55.
Thus, when Rumbaugh in fact arrived Dunlap had his
card and confronted him, asking how it was that his card
had already been punched in. Rumbaugh admits to stating
that Bob (meaning DuPont) probably did it. Dunlap
testified that Rumbaugh went on to say that they had an
agreement whereby the one who arrived first would punch
the other in. Rumbaugh denied he said this to Dunlap or
that he and DuPont in fact had such an agreement.
In any event, Rumbaugh was told to go on to work.
Later that morning, Dunlap confronted DuPont about this
incident. DuPont admitted to Dunlap that he had in fact
punched Rumbaugh in, believing that Rumbaugh in fact
was already at work.
It should be noted that the timeclock is located near the
entrance between the warehouse and the rest of the plant, a
distance of some 120 yards from the entrance used by the
warehouse employees. They could use the main parking
lot, come to work through the plant entrance, and pass by
the timeclock on the way to their work stations. But, as
they requested of Dunlap, they use the warehouse parking
lot and enter the warehouse through the warehouse door.
This is very close to where they park their forklifts. The
point of all this is: according to the testimony of all the
witnesses, including those called by the Respondent, upon
arriving, the employees would get on their forklifts and ride
to the timeclock. In the evenings they would punch out
before parking their forklifts. Beyond that, it was a
common practice at least to punch each other out in the
evening.
While Dunlap disclaimed any knowledge that employees
ever punched each other in or out, I do not believe him.
The overwhelming mutually corroborative testimony of
both the General Counsel's witnesses and those employees
called by the Respondent shows that Dunlap was in fact
present on more than one occasion when one of the four
warehouse employees stated that he would punch out the
others and in fact did so.
Following the events on October 6, Dunlap testified that
he left the plant to go to a luncheon meeting of the Lincoln
Transportation Society of which he is the secretary-treasur-
er. Thus, he did not return to the warehouse until about 2
p.m. at which time he again had a conversation with
DuPont concerning the timecard incident. Then a few
minutes before the quitting time of 3:30, Dunlap called
together the four warehouse employees and told them that
they were responsible only for their own timecards. They
were not to punch each other in or out, and they were no
longer to ride their forklifts to the timeclock-this
apparently because he had received complaints about this.
About 4 p.m. Dunlap went to the personnel office and
talked to Roger Leapley, the assistant personnel manager.
According to their testimony, Dunlap proposed a "hypo-
thetical question" asking what Leapley would do if he had
learned that two employees had agreed to punch each
other in and out. Leapley stated that he felt this was a
violation of company rules and a dischargeable offense.
Leapley then called in Summers and again the "hypo-
thetical" question was posed. Both Leapley and Summers
testified that Dunlap included in the hypothetical question
that the agreement included punching in even if that
employee was not actually at work. Dunlap did not so
testify. In fact he testified that he did not even assume that
to be the case.
During this discussion Summers went to his office to get
a copy of the rule book. He returned and pointed out that
the hypothetical situation would be a violation of employee
rule 2, forbidding falsification of company records, and
that such is a "terminable" offense.
During this conversation Summers asked who the
employees in question were and Dunlap told him. Sum-
mers then advised Dunlap that if his facts were correct he
should check with his immediate supervisor, Donald
Weagel, and initiate discharge proceedings.
Dunlap further testified that in fact he called Weagel that
evening, Weagel having just returned from a trip to
California, told him the facts of the situation, and Weagel
stated that the employees should be discharged.
On the morning of October 7, Niederkofler was to drive
but this time he overslept. Rumbaugh called Niederkofler,
was picked up, and as they were on their way to be late for
the second day, they determined not to go in but to call in
sick. Thus Rumbaugh did not go back to the plant until
October 8 and was not informed of his discharge until that
day.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On October 7 DuPont was told by Dunlap that he was
being terminated. Dunlap said something to DuPont about
feeling that DuPont had been "a victim of circumstance"
but that there was nothing that he could do-that both he
and Rumbaugh had to be discharged.
When asked to explain this, Dunlap stated he felt that
DuPont was a better worker than Rumbaugh and on some
occasions felt that Rumbaugh led DuPont to do things that
he should not.
B. Contentions of the Parties
The General Counsel contends that Rumbaugh was
discharged because of his known and substantial activity
on behalf of the Union. The General Counsel further
argues that, while DuPont was not discharged for his union
activity, his discharge was so intertwined with that of
Rumbaugh that, as Rumbaugh's discharge was a violation
of Section 8(a)(3), so necessarily was DuPont's.
The Respondent contends that the discharges were for
cause. When DuPont, pursuant to an agreement, punched
in Rumbaugh when Rumbaugh in fact was not at work, his
act was one of "falsifying records and defrauding the
Company." The Respondent further denies that Rum-
baugh's union activity was not known to Dunlap, and in
any event union activity was not a consideration in
effecting the discharges.
IV. ANALYSIS AND CONCLUDING FINDINGS
A. The Unlawful Discharges
There is no dispute here that in fact an organizational
campaign was in progress at the time of the discharges, nor
is there any question that Rumbaugh was one of the active
campaigners.
Although the Respondent denies that it had knowledge
of Rumbaugh's union activity until December 2, Summers
admitted that, when first meeting Rumbaugh on August
13, Rumbaugh said that supervisors were unfriendly
because of his activity on behalf of "the Union." For
reasons unexplained by Summers, he repeated the sub-
stance of this conversation with Rumbaugh to a group of
employees in December at the time he was discussing
Rumbaugh's discharge. Whatever Summers' motive, he
told employees he knew of Rumbaugh's union activity
prior to his discharge.
The General Counsel also argues that, as the warehouse
only has four employees, and, since Rumbaugh was the
union organizer for the warehouse, passing out numerous
authorization cards and other union literature, his union
activity must have been known to the Company. While an
inference of union activity from the smallest of a plant is
sometimes appropriate, such is unnecessary in this matter.
It is clear that Summers was in fact the management
official responsible for determining to discharge Rum-
baugh and DuPont; and Summers in fact knew of
Rumbaugh's union activity.
Thus, the crucial question is whether in fact Rumbaugh's
union activity was a contributing factor in the determina-
tion to discharge him. It is fundamental that the Respon-
dent has the right to discharge its employees for any reason
or no reason at all, except for their engaging in union or
protected concerted activity. If, however, the asserted
reason for discharging an employee is not reasonable, then
that fact is evidence that the true motive lies elsewhere. "If
he [the trier of fact] finds that the stated motive for a
discharge is false, he certainly can infer that there is
another motive." Shattuck Denn Mining Corporation (Iron
King Branch) v. N.L.R.B., 362 F.2d 466, 470 (C.A. 9, 1966).
In short, unlawful motive may be inferred from the total
factual situation, and I so infer for the following reasons.
The Respondent's witnesses professed that the sole and
only reason Rumbaugh and DuPont were discharged was
because DuPont had clocked in Rumbaugh at a time when
Rumbaugh in fact was not at work; and that this had been
done pursuant to some kind of a prearranged agreement.
By their act, therefore, these employees were defrauding
the Company and falsifying records.
It is noted, however, that Dunlap did not testify that the
agreement was that these employees would punch each
other in even though they were not at work. Nor did he
even assume such was their agreement. His stated under-
standing was that the first to arrive would punch the other
one in. Thus, there is an internal conflict between the
Respondent's witnesses concerning precisely what the
dischargeable offense was. Summers and Leapley take the
position that it was the agreement of these two employees
to punch each other in even though one was not at work.
Dunlap, however, testified that the dischargeable offense
was simply the fact that these employees punched each
other in and out, although he stated that Rumbaugh's work
record represented 15 to 20 percent of the cause as well.
There is evidence of previous instances where Rumbaugh
had been reprimanded, once for horseplay, and another for
sleeping. The day before his discharge, Rumbaugh was
alleged to have come back from lunch late, although he
was not reprimanded.
Thus, Dunlap testified that some consideration was given
to Rumbaugh's record; however, Summers said the card
punching incident was the only matter considered, not-
withstanding that the termination letters made reference to
each employee's past record.
The termination letters referred to the timecard incident
and went on to say, "We consider this a flagrant and wilful
violation of company rule 2, which states disciplinary
action will be taken for falsification of records. We also
consider this a deliberate attempt to financially defraud the
Company."
The reasons given in the termination letters are essential-
ly the same as testified to by Summers. I find them
pretextuous.
First, there is no evidence that DuPont deliberately
attempted to defraud the Company and cover for Rum-
baugh. DuPont told Dunlap that he thought Rumbaugh
was already at work. From Dunlap's testimony it is clear he
believed DuPont. Neither DuPont nor Rumbaugh attempt-
ed to hide the fact that DuPont had punched Rumbaugh's
timecard. No evidence of willfulness to defraud was
brought to Summers, nor was there any.
Company rule 2 says, "Falsification of records or
misrepresentation about a material fact."
1156
KAWASAKI MOTORS CORPORATION
This rule could be interpreted, as Summers says he did,
to mean that employees should not punch each other's
timecards. But such an interpretation is not inexorable or
even particularly logical. If an employee is at work, the fact
that another employee punches his timecard does not mean
that the card is falsified or there has been a material
misrepresentation.
Since there is no evidence of a willful attempt to defraud,
a fact which the Respondent tacitly concedes, noting that
DuPont assumed Rumbaugh was at work, the alleged rule
violation must simply have been the "agreement" to punch
each other's timecards.
Of significance was the practice of warehouse employees
in punching each other in and out. While Rumbaugh and
DuPont testified that only rarely did one employee punch
another in, it was a weekly occurrence that one employee
would punch out one or more of the others. I find this to be
the case based on the credited testimony of witnesses for
both the General Counsel and the Respondent on this
issue. I further find, based on the testimony of all these
employees, that Dunlap must have known of this practice.
Indeed, the practice was open, notorious, and occurred at
times when Dunlap was talking to the employees whose
cards were being punched out by another.
Dunlap testified that he "could not remember" any such
incidents although he did not deny that they occurred. I
specifically do not believe that Dunlap does not remember
these incidents. Rather, given that the timeclock was at
least 300 feet from the warehouse door where the
employees entered and that there were only four warehouse
employees who Dunlap supervised, I conclude that this
practice testified to as being commonplace could not have
escaped his attention. Further, even if not advisable, the
practice was not unreasonable given the long distance from
the employees' work station to the timeclock. Finally, not
even the Respondent's witnesses contend that employees
had been specifically advised not to punch each other in or
out. Of the 28 rules in the employee rule book governing
on-the-job conduct, none states that employees should not,
in fact, punch each other in or out.
Irrespective of the Respondent's policy, even if unarticu-
lated, and the reasonableness or unreasonableness of the
employees' practice, this practice among warehouse em-
ployees must have been known to Dunlap and therefore to
the Respondent.
To discharge two employees for engaging in an activity
which was common, even though in this instance it was
misapplied because Rumbaugh was not at work when
DuPont thought he was, is just patently unreasonable.
There was no particular necessity to discharge employees
for punching each other in or out, where such was a first
violation of an otherwise unarticulated company rule. The
Respondent submitted exhibits showing that it uses lesser
forms of discipline. In similar, although not in identical,
situations the Respondent has given written reprimands
and 3-day suspensions to employees before discharging
them for violation of company policy.
As noted above, in an apparent attempt to buttress its
case, the Respondent also referred in its discharge letter to
other incidents engaged in by Rumbaugh and DuPont.
One such incident allegedly occurred the day before
Rumbaugh's discharge, when he had returned from lunch
25 minutes late. The "incident report" is dated October 5.
Summers, however, and Dunlap admitted that the report
was not written until after Rumbaugh's discharge. They
did not explain why it was necessary to have an incident
report in the file of somebody who had been discharged,
where that incident, at least according to Summers, was not
involved in the discharge.
A fair analysis of Dunlap's testimony is that he did not
intend to discharge Rumbaugh and DuPont. He talked to
both, told them not to do it anymore, then he talked to the
entire warehouse crew. He told them not to handle each
others' timecards and not to drive their forklifts to the
timecard area. From his testimony it appears that he had
solved the problem and such certainly seems reasonable.
Then he went to the personnel manager and his assistant
apparently to clarify whether he acted correctly. It was
during this conversation, I find, that Summers made the
determination to discharge Rumbaugh and from this the
determination also to discharge DuPont because, as
Dunlap expressed it to DuPont, they could not discharge
one without the other. Given the inconsistencies in the
alleged reasons for discharging Rumbaugh and DuPont,
and the fact that discharge is clearly too severe a penalty in
view of the employees' practice, I conclude that the reason
asserted by the Respondent for discharging Rumbaugh was
pretextuous.
The only motive reasonably attributable to Summers in
directing the discharge of Rumbaugh is his known union
activity. I therefore conclude that, when Summers told
Dunlap to discharge Rumbaugh on October 6, he did so
because he knew that Rambaugh was engaging in organi-
zational activity on behalf of the Union. Accordingly.
Rumbaugh was discharged in violation of Section 8(a)(3).
Since the record shows, indeed, Dunlap admits, that
DuPont's discharge was intertwined with Rumbaugh's and
that he was discharged because Rumbaugh was, it follows
that the discharge of DuPont was also violative of Section
8(a)(3). DuPont's discharge was motivated by union
animus irrespective of the fact that DuPont himself was not
particularly active on behalf of the Union.
The Respondent argues that Dunlap himself had no
particular animus toward the Union, or unions in general.
and that the Respondent could have but did not discharge
Rumbaugh in the spring for pretextual reasons. None of
this evidence, however, is particularly relevant to this
situation inasmuch as I can conclude that the determina-
tion to discharge Rumbaugh was made by Summers and
not by Dunlap or anyone else. It was Summers, the new
personnel manager, who knew of Rumbaugh's union
activity and who, when evidence was brought to him of the
timecard incident, told Dunlap to initiate discharge
proceedings, without even investigating the total factual
situation. Summers' testimony that Rumbaugh's union
activity did not enter into his determination is simply not
persuasive. This is particularly so where he couched the
reason for discharge in the strongest conceivable lan-
guage-defrauding the Company and misrepresenting
material facts.
1157
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Impression of Surveillance
William Ebers, a first-line supervisor, testified that, out
of curiosity, he did in fact go to the Ramanda Inn on
October 21 and viewed the cars in the parking lot to see
how many employees from the Company were there for the
union meeting. He testified that he believes he made two
passes through the parking lot. Such was the testimony of
two employees who saw him. From this testimony it is clear
that Ebers did in fact engage in surveillance of employees'
union activity and certainly thereby created the impression
of doing so. This activity must be imputed to the
Respondent and is violative of Section 8(a)(l).
With regard to the November incident, Ebers testified
that he was simply sitting in the bar of the Holiday Inn
after work not knowing that there was going to be a union
meeting there that day. Unexplained, however, is why he
was in a bar where he had never been before. The
coincidence of Ebers being someplace he had never been at
precisely the same time a union meeting was going on is
too much to believe, particularly in view of Ebers' admitted
activity in engaging in surveillance of the union meeting in
October. I, accordingly, conclude that Ebers at least
created the impression of surveillance by his presence at
the Holiday Inn in November and by this act the
Respondent additionally violated Section 8(a)(1).
The Respondent argues, however, that, upon learning of
Ebers' activity, it posted a notice claiming that Ebers was
not authorized by the Company to engage in such activity
and the Company disassociated itself from that activity.
Such, however, does not remedy the unfair labor practice
committed by the Respondent's agent. To do so requires
more than a simple posting of a disclaimer. It requires also
the posting of an official notice. Accordingly, I shall
recommend that the Respondent be ordered to remedy
these unfair labor practices in the traditional manner.
Finally, I conclude that the above-defined unfair labor
practices are unfair labor practices affecting interstate
commerce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, it will be ordered to cease
and desist therefrom and take certain affirmative actions
designed to effectuate the policies of the Act, including
offering immediate reinstatement to Gary Rumbaugh and
Robert DuPont to their former positions of employment
or, if those jobs no longer exist, to equivalent positions,
without loss of seniority or other benefits and to make
them whole for any loss of wages that they might have
suffered as a result of the discrimination against them in
accordance with the formula set forth in F. W Woolworth
Company, 90 NLRB 289 (1950), and Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
[Recommended Order omitted from publication.]
1158