U.S. Coachworks, Inc.

National Labor Relations Board - Board Decisions

Aug 6, 2001

334 N.L.R.B. 955 (N.L.R.B. 2001)

U.S. COACHWORKS, INC. 955
United States Coachworks, Inc. and Local 259, United
Automobile Workers, AFL–CIO. Cases 29–CA–
20894 and 29–CA–20910
August 6, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
TRUESDALE AND WALSH
On November 25, 1998, Administrative Law Judge D.
Barry Morris issued the attached decision. The Respon-
dent filed exceptions and a supporting brief. The Charg-
ing Party filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and record in
light of the exceptions and briefs and has decided to af-
firm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.
1. Contrary to our dissenting colleague, we agree with
the judge that the Respondent unlawfully discharged
employee Bauer.2
The relevant facts, as found by the judge, are these.
Bauer was the chief organizer for the Union at the Re-
spondent’s facility. He distributed approximately 30
authorization cards on March 31, 1997.3 The Respon-
dent received the Union’s request for recognition on
April 1. On April 2, Gravitt, the Respondent’s president
and owner, told Bauer, “I know you are the one that is
disbursing Union cards.” That day, or the day after,
Bauer wore a union jacket which had “Local 259”
printed on both the front and the back. On viewing
Bauer’s jacket, Gravitt told Bauer, “nice f*** coat.” On
April 2, Bauer, who had been working approximately 3
hours of overtime per week, reported in early for over-
time, but was told by Shapiro, his supervisor, that “due to
all the bull*** that is going on” there would be no more
overtime. Later that day, Bauer asked Gravitt if he
(Gravitt) was aware that Bauer had been in jail. Thus, it
was Bauer who brought this matter to the Respondent’s
attention, rather than the Respondent having discovered
this on its own.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
Member Truesdale notes that East Island Swiss Products, 226
NLRB 1207 (1976), which is cited and distinguished by the judge in his
discussion of backpay and reinstatement at sec. II,A,4, par.1 of his
decision, is distinguishable from the instant case for an additional rea-
son. Specifically, the issue here is whether the Respondent discharged
Bauer because it acquired knowledge of a prior conviction. We adopt
the judge’s finding that he was not discharged for that reason. In East
Island Swiss Products, the respondent did not learn of the criminal
background until after the discharge. In that context the issue was
whether the Board’s usual reinstatement remedy should be modified.
2 The judge also found, inter alia, that the Respondent had unlaw-
fully ceased to assign overtime work to Bauer. Our dissenting col-
league does not disagree with this finding.
3 All dates refer to 1997 unless otherwise indicated.
Subsequent to Bauer’s revelation, the Respondent
commissioned an investigator’s report regarding Bauer.
The report (dated April 7) disclosed, inter alia, that, dur-
ing the past 10 years, Bauer had been convicted of a fel-
ony (conspiracy to distribute metamphetamine) and had
been incarcerated for that offense. Notwithstanding the
fact that he had been incarcerated from May 16, 1991, to
May 23, 1993, Bauer had reported on his employment
application that he had worked at Masterweld from 1990
until 1992 and at Avenger Slat from 1992 until 1995.
On April 7, the Respondent discharged Bauer. The re-
cord contains notes in the form of a memorandum made
by Gore, the Respondent’s co-owner, relating to the
April 7 termination meeting at which Gore, Gravitt, and
Bauer were present. The memorandum states:
I took the following notes of our meeting with Robert
Bauer today at 3:30 p.m. In addition to Mr. Bauer, you
[Gravitt] and I were also present.
At this meeting you advised Mr. Bauer that he was in
his probationary period and you were not happy with
his performance and among other things the following
events stood out.
He threatened to assault Howard Nathan and repeated
the threat to you. Mr. Bauer stated “never did not.”
You told Mr. Bauer that he was observed carrying a
large knife (6–8 inches) in addition to his smaller knife.
But when you spoke to him about it, he denied the exis-
tence of the larger knife. Mr. Bauer stated “lie yup[.]”
You told Mr. Bauer he shoved a co-worker who said
something to him that he didn’t like. Mr. Bauer stated
“I did, Who?” You told Mr. Bauer you weren’t going
to tell him. He said “news to me[.]”
You told Mr. Bauer that he apparently has a tendency
toward violent conduct in the work place, and that he
had mentioned[ ] to you the fact that he was incarcer-
ated. You told him we had investigated what he had
said and we found that he had a history of violent con-
duct outside of the workplace.4 You advised him in
4 In this regard, the April 7 investigator’s report revealed that, in ad-
dition to the conviction and incarceration mentioned above, Bauer had
been convicted of other offenses. One of these matters (attempted
assault, 1994) involved a misdemeanor, and the report does not disclose
whether the other matters (second degree assault and criminal mischief,
1985) were misdemeanors or felonies. The other section of the report
334 NLRB No. 118
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 956
light of all this we are severing our employment rela-
tionship with him. Mr. Bauer said “[s]ounds good to
me.” You asked him if there was anything he didn’t
understand and he replied, “don’t understand noth-
ing[.]” [A]t this point he got up and left your office.
As Bauer was about to leave the Respondent’s building
after being terminated on April 7, Gravitt told him, “I cut
the head off the dragon that breathed the fire of the Un-
ion.”
Our dissenting colleague assumes arguendo that the
General Counsel established a prima facie case that
Bauer was unlawfully discharged. However, our col-
league would find that the Respondent would have dis-
charged Bauer even in the absence of his protected activ-
ity. Specifically, he maintains that “the Respondent
seems to have reached the entirely well-founded conclu-
sion that Bauer was a dangerous and unreliable person to
have as an employee,” and was, therefore, justified in
discharging him.
Contrary to our colleague, we agree with the judge that
Bauer was unlawfully discharged. The General Counsel
presented a strong prima facie case that the Respondent
was motivated by antiunion animus in discharging
Bauer; the judge found no evidence substantiating three
of the Respondent’s asserted reasons for discharging
Bauer; the Respondent offered shifting reasons for dis-
charging Bauer, from which the judge properly inferred
that the real reason was an unlawful one; and Gravitt’s
statement to Bauer on discharging him is “smoking-
gun”—type evidence that Bauer was discharged because
of his protected activities.
First, to establish that an employee was discharged in
violation of Section 8(a)(3),5 the General Counsel must
persuade, by a preponderance of the evidence, that an
employee’s protected conduct was a motivating factor in
the employer’s decision. See Wright Line, 251 NLRB
1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982), approved in NLRB v.
Transportation Management Corp., 462 U.S. 393, 399–
403 (1983); see also Manno Electric, 321 NLRB 278,
280 fn. 12 (1996). “The elements commonly required to
support a prima facie showing of discriminatory motiva-
tion. . . . are union activity, employer knowledge, timing,
and employer animus.” Best Plumbing Supply, 310
NLRB 143 (1993). If the General Counsel is able to
make such a showing, the burden of persuasion shifts “to

is entitled “Non-confirmed arrests and related charges.” Notably, the
disposition of those matters was unknown.
5 Sec. 8(a)(3) prohibits an employer from discriminating against em-
ployees “in regard to hire or tenure of employment or any term or con-
dition of employment to encourage or discourage membership in any
labor organization.”
the employer to demonstrate that the same action would
have taken place even in the absence of the protected
conduct.” See Wright Line, supra at 1089. Stated other-
wise:
[u]nder the Board’s two-step Wright Line test … the
Board’s General Counsel must first present evidence
that proves that protected conduct was a motivating
factor in the discharge. . . . If this burden of persuasion
is met, the employer may avoid liability only if it dem-
onstrates by a preponderance of the evidence “that it
would have reached the same decision absent the pro-
tected conduct.”
NLRB v. G&T Terminal Packaging Co., 246 F.3d 103,
116 (2d Cir. 2001).
Here, as the judge found, the General Counsel has
demonstrated that Bauer’s Union conduct was a motivat-
ing factor in the Respondent’s decision to discharge him.
As the Union’s chief organizer at the Respondent’s facil-
ity, Bauer distributed approximately 30 authorization
cards and presented the cards to the Union. The Respon-
dent knew about Bauer’s union activities: On April 2,
Gravitt told Bauer, “I know you are the one that is dis-
bursing Union cards”;6 on April 2, Shapiro told Bauer
when Bauer reported early for overtime work that, “due
to all the bull*** that is going on” there would be no
more overtime; and on either April 2, or April 3, when
Gravitt saw Bauer wearing a union coat, he stated, “nice
f*** coat.” The Respondent demonstrated its antiunion
animus toward Bauer through Shapiro’s April 2 remark
quoted above (which was not alleged to be an unfair la-
bor practice). The Respondent also demonstrated anti-
union animus toward Bauer by unlawfully ceasing to
assign him overtime work (a finding with which our dis-
senting colleague does not disagree), and by unlawfully
interrogating him. Further, the Respondent demonstrated
its overall antiunion animus by discharging employee
Smith.7 Finally, the Respondent bluntly demonstrated its
antiunion animus when Gravitt stated, as Bauer was
about to leave the building following his discharge on
April 7, “I cut the head off the dragon that breathed the
fire of the Union.” This last statement supplies direct
evidence of the Respondent’s antiunion motivation in
discharging Bauer (as well as the Respondent’s knowl-
edge of Bauer’s union activities). With respect to timing,
6 The judge correctly found that this statement gave the impression
that the activities on behalf of the Union were under surveillance in
violation of Sec. 8(a)(1). Thus, this statement is also evidence of the
Respondent’s antiunion animus toward Bauer. See fn.7.
7 When a discharge occurs against the background of other unfair la-
bor practices, those unfair labor practices may constitute evidence of a
respondent’s antiunion animus. See Novartis Nutrition Corp., 331
NLRB 1519 (2000).
U.S. COACHWORKS, INC. 957
Bauer was discharged on April 7, only 6 days after the
Respondent had received the Union’s request for recog-
nition, and only 5 days after occurrence of the pre-
discharge incidents described above (cessation of over-
time, interrogation, creation of the impression of surveil-
lance, and Gravitt’s antiunion remark concerning Bauer’s
union jacket).
Second, the judge discredited all of the Respondent’s
asserted reasons for discharging Bauer relating to his
workplace conduct. Specifically, the judge found that
Bauer did not carry a large knife, did not shove an em-
ployee, and did not threaten an employee with physical
harm. The Respondent did not even call as witnesses
those individuals who it claimed had observed Bauer
carrying a long knife and shoving an employee. Our
colleague’s point that “there is no denial that [Bauer]
carried a smaller knife” is irrelevant because the record
does not reflect that one of the Respondent’s reasons for
discharging Bauer was for carrying a small knife. In this
regard, Gore’s memorandum, which is quoted in full
above, stated: “You told Mr. Bauer that he was observed
carrying a large knife . . . in addition to his smaller knife.
But when you spoke to him about it, he denied the exis-
tence of the larger knife.” Bauer testified that he used a
small knife for work, and the record further reflects that
Gravitt, the Respondent’s president, initiated his investi-
gation into this matter based on an employee’s report
(which was discredited by the judge, as stated above) that
Bauer carried a large knife. Indeed, as Gravitt’s notes
reveal, Gravitt was not concerned with Bauer’s using the
small knife as long as it was for work. Additionally, the
judge found that Shapiro had told Bauer that “he was
extremely happy with the way [Bauer] did his job.”
Third, the judge found that the Respondent presented
shifting reasons for discharging Bauer. Specifically, the
judge found that, at the hearing, the Respondent added
two reasons for discharging Bauer—the fact that he lied
on his employment application and its general knowl-
edge of the Pagans Motorcycle Club (a group with which
Bauer was affiliated)—that were not mentioned in
Gore’s memorandum quoted above.
The dissent takes the position that these two alleged
reasons were “quite consistent” with those set forth in
Gore’s memorandum, and therefore do not constitute
shifting reasons. The dissent arrives at that conclusion
through the following reasoning. The Gore memoran-
dum states that the Respondent had investigated what
Bauer had said (presumably about his prior conviction),
and had found that he had “a history of violent conduct
outside of the workplace.” The investigation referenced
in the memorandum produced an investigative memo-
randum, and in that investigative memorandum there is a
reference to Bauer’s membership in the Pagans Motorcy-
cle Club and information suggesting that Bauer could not
have worked for the entire time that he stated on his em-
ployment application. Thus, according to the dissent, in
the “Respondent’s mind” when it mentioned the investi-
gation in the Gore memorandum it was really thinking of
the Pagans Motorcycle Club and Bauer’s misrepresenta-
tion on his employment application.
The dissent’s reasoning is based on nothing more than
speculation. The Gore memorandum nowhere mentions
the investigative report or any specific matter referenced
in it. The Gore memorandum does carefully set forth
several specific reasons why it discharged Bauer. Given
this, it would seem safe to assume that if the Respondent
had other reasons for discharging Bauer it would have
specifically stated them in the memorandum.
“Shifting explanations for discharge may, in and of
themselves, provide evidence of unlawful motivation.”
NLRB v. Henry Colder Co., 907 F.2d 765, 769 (7th Cir.
1990). See also Abbey’s Transportation Services, Inc. v.
NLRB, 837 F.2d 575, 581 (2d Cir. 1988): “shifting asser-
tions strengthen the inference that the true reason [for an
employer’s decision to discharge an employee] was for
union activity”; Sound One Corp., 317 NLRB 854, 858
(1995), quoting Aluminum Technical Extrusions, 274
NLRB 1414, 1418 (1985): “The Board has long ex-
pressed the view that ‘when an employer vacillates in
offering a rational and consistent account of its actions,
an inference may be drawn that the real reason for the
conduct is not among those asserted.’” Thus, the judge
appropriately drew an adverse inference from these shift-
ing reasons that the actual reason for the Respondent’s
conduct was not among those asserted. Indeed, as noted
above, the judge found that these reasons were not only
shifting, but pretextual in themselves.
Furthermore, even if we were to conclude that the Re-
spondent’s reliance on Bauer’s membership in the Pa-
gans Motorcycle Club does not constitute a shifting rea-
son, the judge nonetheless properly rejected this reason
as pretextual. The judge found that the Respondent was
aware of Bauer’s affiliation with the Pagans Motorcycle
Club at the beginning of Bauer’s employment and that
Bauer regularly wore clothing displaying the name Pa-
gans. Given the Respondent’s awareness of Bauer’s af-
filiation with the Pagans when he began his employment,
it is reasonable to infer that this reason was pretextual.
With respect to the Respondent’s contention that it de-
cided to discharge Bauer on discovering that he had falsi-
fied information on his employment application, the
judge specifically stated that he did not believe that that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 958
was the reason for Bauer’s discharge, thus indicating that
this reason was pretextual as well.8
Finally, as mentioned above, after Bauer was dis-
charged, Gravitt told him, “I cut the head off the dragon
that breathed the fire of the Union.” This statement is
virtually an admission by Gravitt as to why he actually
discharged Bauer, who was the Union’s chief organizer
at the Respondent’s workplace.
Thus, contrary to our colleague, the evidence does not
demonstrate that the Respondent discharged Bauer be-
cause he “was a dangerous and unreliable person to have
as an employee.” Summing up, the General Counsel has
presented a strong prima facie case that the Respondent
was motivated to discharge Bauer because of his union
activity. Further, the judge specifically found that Bauer
did not assault an employee, did not threaten an em-
ployee, and did not carry a large knife to work. The
judge also found that two of the Respondent’s other rea-
sons for discharging Bauer—the Respondent’s general
knowledge of the Pagans (a group with which Bauer was
affiliated) and Bauer’s lying on his employment applica-
tion—constituted evidence of the Respondent’s shifting
reasons for discharging Bauer and were pretextual. In
light of these findings, as well as the “smoking gun”
statement referred to above, we must reject the Respon-
dent’s assertion that it would have discharged Bauer even
in the absence of his protected conduct.
2. Contrary to our colleague, we also agree with the
judge that the Respondent unlawfully created the impres-
sion of surveillance when Gravitt told Bauer on April 2,
“I know you are the one that is disbursing Union cards
out.” Our colleague maintains that this statement was
not unlawful because the judge made no finding that
Bauer’s distribution of authorization cards was con-
ducted clandestinely, and made no finding that Gravitt
was unlikely to have learned of Bauer’s activity by
purely innocent means.
Board law in this area is clear:
The Board’s test for determining whether an employer
has created an impression of surveillance is whether the
employee would reasonably assume from the statement
in question that his union activities had been placed un-
der surveillance [citation omitted]. “The Board does not

8 In adopting the judge’s finding that the Respondent did not dis-
charge Bauer because of his criminal history, we find it unnecessary to
rely on the judge’s statements, at sec. II,A,3 and sec. II,A,4, par. 1 of
his decision, regarding the Respondent’s failure to demonstrate that a
prior conviction on drug related charges had any bearing on Bauer’s
ability to perform cut and stretch work.
We also find it unnecessary to rely on the judge’s statements, at sec.
II,A,3 and sec. II,A,4, par. 2 of his decision, referring to the Respon-
dent’s failure to include a question in its application form concerning
prior convictions.
require employees to attempt to keep their activities se-
cret before an employer can be found to have created
an unlawful impression of surveillance. . . . Further,
the Board does not require that an employer’s words on
their face reveal that the employer acquired its knowl-
edge of the employee’s activities by unlawful means.”
Tres Estrellas de Oro, 329 NLRB 50 (1999), quoting in
part United Charter Service, 306 NLRB 150, 151 (1992).
The rationale for this rule “is that employees should be
free to participate in union organizing campaigns without
the fear that members of management are peering over
their shoulders, taking note of who is involved in union
activities, and in what particular ways.” Id., quoting
Flexsteel Industries, 311 NLRB 257 (1993).
Thus, our colleague’s point that the judge made no
finding that the distribution was conducted in a clandes-
tine manner is plainly inconsistent with Board law,
which, as stated above, requires no such finding for vio-
lations of this sort. The issue here is not how Gravitt
acquired his knowledge of the Union campaign (as stated
above, a comment does not have to reveal, on its face,
that an employer acquired its knowledge through
“unlawful means”); instead, the issue is whether Bauer
“would reasonably assume from” Gravitt’s statement
“that his union activities had been placed under surveil-
lance.” Id.
The credited testimony does not demonstrate that the
Respondent knew which employees had distributed (or
were distributing) authorization cards as of April 2, the
date on which Gravitt made the above-quoted remark to
Bauer. Thus, Bauer could reasonably assume, from
Gravitt’s remark, that Gravitt had been surveilling his
activities relating to the Union campaign, and the judge
correctly found the statement to be unlawful under Sec-
tion 8(a)(1).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, United States Coachworks,
Inc., Bohemia, New York, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.

CHAIRMAN HURTGEN, dissenting in part.
Unlike my colleagues, I find that Robert Bauer’s ter-
mination was lawful. I assume arguendo that the General
Counsel established a prima facie case that the termina-
tion violated Section 8(a)(3) and (1) of the Act, but I
conclude that the Respondent has successfully rebutted
that case.
On April 2, 1997, employee Bauer asked William
Gravitt, president and owner of the Respondent, whether
U.S. COACHWORKS, INC. 959
Gravitt knew that Bauer had been in jail. The Respon-
dent then commissioned an investigator’s report on
Bauer, which it received on April 7. The report disclosed
that Bauer had been convicted of attempted assault
(1994), second-degree assault and criminal mischief
(1985), and conspiracy to distribute metamphetamine
(arrested 1990, began serving sentence 1991). The report
also indicated, under the heading “Non-Confirmed Ar-
rests and Related Charges,” that Bauer had been arrested
on June 17, 1986, and charged with assault with intent to
cause physical injury with a weapon. Under the same
heading, the report stated that, according to confidential
law enforcement sources, Bauer had been arrested at
some time before July 1990, on a cocaine-related charge.
As to each of the three confirmed convictions, the report
showed that Bauer had served time in jail or prison.
The metamphetamine conviction resulted in his incar-
ceration from May 16, 1991, to May 23, 1993, at the
McKeen Federal Correction Institute in Pennsylvania.
Bauer, on his employment application, had stated that he
worked at Masterweld from 1990 until 1992, and at
Avenger Slat from 1992 to 1995.
The Respondent terminated Bauer on April 7.
Respondent’s coowner John Gore prepared a memo-
randum to Gravitt reflecting the notes that Gore took
concerning what Gravitt told Bauer at the termination
meeting held with him on April 7. The memorandum
stated:
I took the following notes of our meeting with Robert
Bauer today at 3:30 PM. In addition to Mr. Bauer, you
and I were also present.
At this meeting you advised Mr. Bauer that he was in
his probationary period and you were not happy with
his performance and among other things the following
events stood out.
He threatened to assault Howard Nathan and repeated
the threat to you. Mr. Bauer stated “never did not.”
You told Mr. Bauer that he was observed carrying a
large knife (6-8 inches) in addition to his smaller knife.
But when you spoke to him about it, he denied the exis-
tence of the larger knife. Mr. Bauer stated “lie yup.”
You told Mr. Bauer he shoved a co-worker who said
something to him that he didn’t like. Mr. Bauer stated
“I did, Who?” You told Mr. Bauer you weren’t going
to tell him. He said “news to me.”
You told Mr. Bauer that he apparently has a tendency
toward violent conduct in the work place, and that he
had mentioned to you the fact that he was incarcerated.
You told him we had investigated what he had said and
we found that he had a history of violent conduct out-
side of the workplace. You advised him in light of all
this we are severing our employment relationship with
him. Mr. Bauer said “Sounds good to me.” You asked
him if there was anything he didn’t understand and he
replied, “don’t understand nothing” at this point he got
up and left your office.
At the hearing, the Respondent’s witness testified that
Respondent terminated Bauer because of his behavior on
the job, his criminal history, the fact that he lied on his
employment application, and the general knowledge of
the nature of the Pagans, a motorcycle gang to which
Bauer belonged. (The investigator’s report, under “Af-
filiations,” stated that Bauer was “President and Ser-
geant-at-Arms of the Pagans Motorcycle Gang”).
The judge concluded that Bauer’s termination was
unlawful. The judge relied substantially on a finding that
the Respondent had offered vacillating reasons for
Bauer’s termination (i.e., memorandum vs. hearing).
I disagree. In my view, the reasons given at the hear-
ing were quite consistent with those set forth in the
memorandum. The “behavior on the job” was mentioned
at the hearing and was detailed in the memorandum. The
“criminal history” was mentioned at the hearing and was
referenced in the memo. In this regard, the memo re-
ferred to the investigation, which revealed violent con-
duct outside the workplace. The matter of the Pagans
was mentioned at the hearing and was adverted to in the
memorandum. In this regard, the memorandum referred
to the investigation which revealed Bauer’s presidency of
the Pagans and Bauer’s history of violent conduct outside
the workplace. In Respondent’s mind, there was a con-
nection between the two. The matter of lying on the em-
ployment application was mentioned at the hearing and
was referred to in the memo. That is, the memo referred
to the investigation, which revealed that Bauer could not
have worked during the times he claimed.
My colleagues state that the text of the memorandum
mentions neither the Pagans nor Bauer’s lying on his
employment application. As noted supra, however, the
memorandum stated that the Respondent had learned,
through its investigation, that Bauer had a history of vio-
lent conduct outside the workplace. Given the reputation
of the Pagans, this statement is broad enough to include
not only Bauer’s arrest and convictions, but also his quite
prominent role in the Pagans. As to the employment
application, the investigation revealed that Bauer was
incarcerated from May 16, 1991, to May 23, 1993. This
fact revealed the further fact that Bauer had lied when he
stated that he worked at Masterweld from 1990 until
1992, and at Avenger Slat from 1992 to 1995. I there-
fore attribute little weight to the fact that the memoran-
dum did not separately and explicitly detail this decep-
tion.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 960
In sum, the Respondent seems to have reached the en-
tirely well-founded conclusion that Bauer was a danger-
ous and unreliable person to have as an employee.1 In
this regard, the memorandum and the testimony are quite
consistent. Because the reasons for Bauer’s termination
were substantial, legitimate, and not “shifting,” I find
that the Respondent has shown that it would have termi-
nated him even in the absence of his protected activity.
Accordingly, I would dismiss this allegation.
My colleagues rely heavily on the fact that, at the time
of discharge, Gravitt said, “I cut the head off the dragon
that breathed the fire of the Union.” To be sure, this
statement adds strength to the prima facie case that a
motivating reason for the discharge was Bauer’s union
activity. However, where, as here, there is also a lawful
reason for the discharge, sufficient in itself to warrant the
discharge, there is no violation. The fact that an em-
ployer was pleased with the result (because it was consis-
tent with one of the employer’s motives) is not sufficient
to invalidate the lawful discharge.
I also disagree with the judge’s conclusion concerning
the incident in which Gravitt told Bauer, “I know you are
the one that is disbursing Union cards out.” The judge
concluded that this statement gave Bauer the impression
that his activities on behalf of the Union were under sur-
veillance, in violation of Section 8(a)(1) of the Act. Un-
der certain circumstances, I agree that such a statement
could give that impression. Thus, for example, if it were
established that the cards were being distributed secretly
or away from the workplace, and that the identity of the
distributor was not generally known, a statement like the
one at issue might create an impression of surveillance.
However, in the instant case, Bauer, the Union’s chief
organizer, distributed about 30 authorization cards on
March 31. The judge made no finding that this distribu-
tion was conducted in a clandestine manner. Nor did he
make any other finding suggesting that Gravitt was
unlikely to have learned of Bauer’s activity by purely
innocent means.
My colleagues correctly state that “the Board does not
require employees to attempt to keep their activities se-
cret before an employer can be found to have created an
unlawful impression of surveillance.” I agree. There is
no requirement that an employee seek to maintain se-
crecy in his union activity. However, the issue here is
whether the employee would reasonably infer that his

1 The judge credited Bauer’s denial that he carried a large knife at
the work place. However, there is no denial that he carried a smaller
knife. In any event, his other conduct, at and away from the work
place, clearly supports Respondent’s concerns. Further, the fact that his
job performance may have been satisfactory does not diminish Respon-
dent’s concerns about his character and conduct.
union activity is being spied on. Where, as here, an em-
ployer tells an employee that it has knowledge of his
union activity, the employee can come to two possible
conclusions: (1) the employer saw the employee as he
openly engaged in union activity; (2) the employer spied
on the employee as he surreptitiously engaged in union
activity. In the instant case, Bauer was the chief union
organizer, and he distributed 30 authorization cards. The
General Counsel has not shown that Bauer did so se-
cretly. Accordingly, on this record, it has not been
shown that Bauer would reasonably come to conclusion
No.2 above. In these circumstances, I find that there is
not a sufficient basis to conclude that Gravitt’s statement
was unlawful. I would therefore dismiss this allegation
as well.

Marcia Adams, Esq., for the General Counsel.
Martin Gringer, Esq. (Franklin & Gringer), of Garden City,
New York, for the Respondent.
Richard Dorn, Esq. and Ronald E. Klein, Esq. (Sipser, Wein-
stock, Harper, & Dorn), of New York, New York, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
D. BARRY MORRIS, Administrative Law Judge. This case
was heard before me in Brooklyn, New York, on June 16 and
17, 1998. On charges filed on April 11 and 16, 1997,1 a con-
solidated complaint was issued on March 12, 1998, alleging
that United States Coachworks, Inc. (Respondent) violated
Section 8(a)(1) and (3) of the National Labor Relations Act (the
Act). Respondent filed an answer denying the commission of
the alleged unfair labor practices.
The parties were given full opportunity to participate, pro-
duce evidence, examine and cross-examine witnesses, argue
orally, and file briefs. Briefs were filed by the parties on Au-
gust 6, 1998.
On the entire record of the case, including my observation of
the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New York corporation, with its principal of-
fice and place of business in Bohemia, New York, has been
engaged in the manufacture and retail and wholesale sale of
stretch limousines. Respondent has admitted, and I find, that it
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. In addition, it has been
admitted and I find, that Local 259, United Automobile Work-
ers, AFL–CIO (the Union) is a labor organization within the
meaning of Section 2(5) of the Act.
1 All dates refer to 1997 unless otherwise specified.
U.S. COACHWORKS, INC. 961
II. THE ALLEGED UNFAIR LABOR PRACTICES
THE FACTS
1. Robert Bauer
The complaint alleges that from April 3, until April 7, 1997,
Respondent reduced the work hours of Bauer by ceasing to
assign him overtime work and on April 7, Respondent termi-
nated Bauer because of his union activities. Bauer began his
employment with Respondent in January 1997. He was the
chief organizer for the Union. I credit his testimony that he
distributed approximately 30 authorization cards on March 31.
At approximately 5 a.m. on April 1, he turned over the cards to
the union business agent. The parties stipulated that Respon-
dent received the union’s request for recognition at 4:37 p.m.
on April 1.
I credit Bauer’s testimony that on April 2, William Gravitt,
president and owner of Respondent, told Bauer “I know you are
the one that is disbursing Union cards.” Either on that day or
the next day Bauer wore a union jacket, which had “Local
259,” printed on both the front and on the back. When Gravitt
saw the jacket he told Bauer, “nice f—coat.” Prior to April 2
Bauer had been working approximately 3 hours overtime per
week. On April 2, when Bauer reported in early for overtime,
he asked his supervisor, David Shapiro, whether he could still
come in early. I credit Bauer’s testimony that Shapiro replied
“[D]ue to all the bullshit that is going on” there would be no
more overtime.
On April 7, when Bauer was finishing his day’s work, he
was approached by Shapiro who told him that Gravitt would
like to see him in his office. Gravitt told Bauer that they were
not happy with his job performance. He also told Bauer that he
had shoved an employee and that he had carried a large knife
on the job. Gravitt also referred to Bauer’s criminal back-
ground. I credit Bauer’s testimony that when he was about to
leave the building Gravitt told him, “I cut the head off the
dragon that breathed the fire of the Union.”
2. Discussion and Conclusions
The complaint alleges that Respondent reduced the overtime
work of Bauer and terminated him on April 7, because of his
union activities. Under Wright Line, 251 NLRB 1083, 1089
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982), the Board requires that the General Counsel
make a prima facie showing sufficient to support the inference
that protected conduct was a motivating factor in the em-
ployer’s decision. Once this is established the burden shifts to
the employer to demonstrate that the “same action would have
taken place even in the absence of the protected conduct.” I
find that the General Counsel has made a prima facie showing
sufficient to support the inference that protected conduct was a
motivating factor in Respondent’s ceasing to assign Bauer
overtime work and its termination of Bauer on April 7. Bauer
was the chief organizer for the Union and distributed approxi-
mately 30 authorization cards on March 31. On April 2 or 3, he
wore a jacket with the Local 259 insignia at which time Gravitt
commented “nice f--- coat.” I have credited Bauer’s testimony
that on April 2, when Bauer appeared for his regular overtime,
Shapiro told him that there wouldn’t be any overtime “due to
all the bullshit that is going on.” I have also credited Bauer’s
testimony that after he was terminated Gravitt told him “I cut
the head off the dragon that breathed the fire of the Union.”
The record contains a memorandum from John Gore to
Gravitt reflecting the notes that Gore took concerning what
Gravitt told Bauer at the termination meeting of April 7. The
memorandum indicates that Bauer was told that Gravitt was not
happy with his performance; that he threatened to assault How-
ard Nathan; that he was observed carrying a large knife; that he
shoved a coworker; and that he had been incarcerated. No
mention was made of his membership in the Pagans Motorcycle
Club. During the hearing it was stated by Respondent that the
factors which “came into play” in determining that Bauer
should be terminated were “his behavior on the job, his crimi-
nal history, the fact that he lied on his employment application,
and the general knowledge of what [were] the Pagans.” The
Board has long expressed the view that “when an employer
vacillates in offering a rational and consistent account of its
actions, an inference may be drawn that the real reason of its
conduct is not among those asserted.” Aluminum Technical
Extrusions, 274 NLRB 1414, 1418 (1985); Zengel Bros., 298
NLRB 203, 206 (1990).
With respect to management’s knowledge that Bauer
belonged to the Pagans, I believe that they knew that informa-
tion from the very beginning of his employment. I credit
Bauer’s testimony that he regularly wore short-sleeved shirts
and that the name Pagans was prominently displayed on his
body and was clearly visible. Steven Smith corroborated this
testimony. With regard to the Howard Nathan incident Re-
spondent has not shown that Bauer threatened him with physi-
cal harm. It was Nathan who apologized for the incident and
afterwards they both shook hands. Concerning the alleged
shoving of Kirchner I credit Bauer’s testimony that he did not
do so. Kirchner was not called by Respondent as a witness.
Similarly, with respect to his having a long knife, I credit
Bauer’s testimony that he did not have one. Mauricio, the per-
son alleged to have seen the knife, was not called as a witness.
Finally, I credit Bauer’s testimony that Shapiro told him that
“he was extremely happy with the way I . . . did my job.” Re-
spondent has made no showing to the contrary.
3. Criminal History
On April 2, while Gravitt was walking through the shop he
stopped at Bauer’s station who looked up at him and asked him
if he was aware that he had been in jail. On April 7, Respon-
dent received an investigator’s report, which disclosed that
during the past 10 years Bauer had been convicted of a felony
and had been incarcerated. Respondent’s employment applica-
tion does not ask whether an applicant has had any criminal
convictions. It does, however, ask for a list of former employ-
ers. Bauer was incarcerated from May 16, 1991, to May 23,
1993. The employment application that Bauer completed states
that he worked at Masterweld from 1990 until 1992 and at
Avenger Slat from 1992 to 1995. Respondent contends that as
soon as it discovered that Bauer had lied on his employment
application it decided to terminate him. I do not believe that
that was the reason for Bauer’s termination. If prior convic-
tions had been that important to Respondent it would have spe-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 962
cifically had a question in its application form concerning prior
convictions. In addition, Bauer was hired to cut and stretch
limousines. Respondent has made no showing that a prior con-
viction on drug related charges has any bearing on Bauer’s
ability to perform cut and stretch work. I find that Respondent
has not satisfied its burden of demonstrating that the “same
action would have taken place even in the absence of the pro-
tected conduct.”
4. Backpay and reinstatement
Citing several cases, Respondent argues that even if a viola-
tion of Section 8(a)(1) and (3) of the Act is found, it would be
inappropriate to order reinstatement and backpay for Bauer as
part of the remedy since he lied on his employment application.
I believe, however, that the cases Respondent has cited are
distinguishable. In East Island Swiss Products, 226 NLRB
1207 (1976), when the charging party, Tracht, first applied for
work with respondent he had already been suspended by his
previous employer, the U.S. Post Office, for suspicion of ap-
propriating funds. On his application Tracht properly noted
that the Post Office had been his former employer but left blank
the space requiring him to state the reason for his leaving his
former employer. A year later, when Tracht took a leave of
absence to stand trial he falsely told respondent that he was
merely hunting for a job in Brazil and when he took a leave of
absence to be sentenced he again falsely told respondent that he
was taking off for personal reasons. The Board stated (at
1208):
And it is also true that Tracht was responsible for concealing
such information by failing to complete the appropriate space
in the application form, thereby making it impossible for Re-
spondent to establish that it would have never hired Tracht
had it known of his prior misconduct from the outset. Under
these circumstances, and particularly considering the serious
and employment-related nature of Tracht’s criminal offense,
we do not believe that Respondent should have the burden of
establishing that it would not have continued Tracht upon ob-
taining this information.

I believe that East Island is distinguishable inasmuch as in the
instant proceeding there was no question on the application
form regarding prior convictions. In East Island, however,
Tracht failed to complete the appropriate space in the applica-
tion form, which required him to state the reason for leaving his
former employer. In addition, in East Island the Board noted
the “employment-related nature of Tracht’s criminal offense.”
In the instant proceeding, Respondent has made no showing
that Bauer’s prior conviction on drug-related charges had any
bearing on his job involving stretching and welding of limou-
sines.
Similarly, I believe that Ohio Ferro-Alloys Corp., 209 NLRB
577 (1974), cited by Respondent, is distinguishable. In that
case the Board stated (at fn. 2): “The arbitrator also found that
Schiesz falsified his employment application by stating therein
that he had never been arrested or served a jail sentence when
he in fact had a history of arrests and had been convicted and
sentenced to San Quentin State Penitentiary for a term of 5
years to life.” In the instant proceeding, Bauer never stated that
he had not been convicted. Indeed, as pointed out above, the
employment application did not ask the question whether the
applicant had any prior convictions.
5. Termination of Steven Smith
The complaint alleges that on April 14, Respondent termi-
nated its employee, Steven Smith, and refused to reinstate him
until April 21, because of his union activities. Smith was one
of the three employees who distributed union authorization
cards. In the beginning of April he also wore a hat to work
with the union insignia on it. In addition, in early April Smith
wore a shirt to work containing the union insignia. Gravitt told
him, “Why don’t you take that shirt off, Mr. Smith.” On April
14, Shapiro asked Smith to work overtime and Smith refused
saying, “I had things to take care off”. On cross-examination of
Smith, counsel for Respondent established that on April 9,
1996, Smith was suspended for having refused to work manda-
tory overtime. However, he was not terminated. I find that
pursuant to Wright Line, supra, the General Counsel has made a
prima facie showing sufficient to support the inference that
protected conduct was a motivating factor in Respondent’s
decision to terminate Smith. While Respondent demonstrated
that for such an infraction as refusing to work overtime Smith
had been previously suspended, no showing was made that
Smith, or any other employee, had previously been terminated
for such an infraction. Accordingly, I find that Respondent has
not satisfied its burden of showing that the “same action would
have taken place even in the absence of the protected conduct.”
6. Suspension of Bennett
however, where I to have found that the General
Counsel did make a prima facie showing, I The complaint
alleges that on April 1, Respondent suspended its employee,
Alex Bennett, for 5 days because of his union activities. Ben-
nett was employed by Respondent in its air-conditioning de-
partment from January 1994 to May 1998. He testified that on
March 27, he handed out authorization cards to other workers at
lunchtime and before and after work. He admitted that no one
from management saw him handing out the cards. On March
27, he reported to work 25 minutes late. On that day he took a
2-hour lunch period. When he returned to work Gravitt yelled
at him for being out for 2 hours. While Bennett testified that he
was working a side job pursuant to instruction of Shapiro and
supervisor Hampton, nevertheless he admitted that he did not
give this explanation to Gravitt. On March 28 Bennett called in
sick. Gravitt testified that he believed that Bennett called in
sick in retaliation for Gravitt’s having yelled at him the previ-
ous day. Gravitt did not work on Monday, March 31. On
Tuesday morning, April 1, at 7 a.m. Gravitt suspended Bennett.
Inasmuch as the General Counsel has not shown that manage-
ment knew of Bennett’s union activities prior to the suspension,
I find that pursuant to Wright Line, supra, the General Counsel
has not made a prima facie showing sufficient to support the
inference that protected conduct was a motivating factor in
Respondent’s decision to suspend Bennett. Even, believe that
under the facts as detailed above Respondent has satisfied its
burden of showing that the “same action would have taken
place even in the absence of the protected conduct.”
U.S. COACHWORKS, INC. 963
7. Alleged violations of Section 8(a)(1)
The complaint alleges that in early April Gravitt interrogated
employees concerning their union activities and gave the em-
ployees the impression that their activities on behalf of the
Union were under surveillance. I have credited Bauer’s testi-
mony that on April 2, Gravitt asked him questions about union
activities at Respondent’s plant and asked him “who was dis-
bursing the Union cards.” I find that this constitutes unlawful
interrogation, in violation of Section 8(a)(1) of the Act. Bauer
also credibly testified that around the same time Gravitt told
him “I know you are the one that is disbursing union cards out.”
I find that this statement gave employees the impression that
their activities on behalf of the Union were under surveillance,
in violation of Section 8(a)(1) of the Act. See Haynes Motor
Lines, 273 NLRB 1851, 1855 (1985); Walton Mirror Works,
313 NLRB 1279, 1285 (1994).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in 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 interrogating its employees about their union activities
and by giving its employees the impression that their activities
on behalf of the Union were under surveillance Respondent has
engaged in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. By ceasing to assign Robert Bauer overtime work and by
discharging Bauer and Steven Smith for their union activities,
Respondent has engaged in unfair labor practices within the
meaning of Section 8(a)(1) and (3) of the Act.
5. The aforesaid unfair labor practices constitute unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
6. Respondent did not violate the Act in any other manner al-
leged in the complaint.
THE REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I find it necessary to order Respondent to cease
and desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act.
Respondent, having unlawfully reduced the work hours of
Robert Bauer by ceasing to assign him overtime work from
April 2, until April 7, 1997, and Respondent, having unlawfully
discharged Bauer and Steven Smith, I find it necessary to order
Respondent to make them whole for any loss of earnings they
may have suffered. Inasmuch as Smith was reinstated on April
21, his backpay period extends from April 14, until April 21,
1997. As stated earlier in this decision, I believe that Bauer is
entitled to backpay and be offered reinstatement. Accordingly,
I shall order Respondent to offer him full reinstatement to his
former position, or if such position no longer exists, to a sub-
stantially equivalent position, without any prejudice to his sen-
iority or other rights and privileges. Backpay shall be com-
puted in accordance with the formula approved in F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest as computed in
New Horizons for the Retarded, 283 NLRB 1173 (1987).2
On the foregoing findings of fact, conclusions of law, and on
the entire record, pursuant to Section 10(c) of the Act, I issue
the following recommended3
ORDER
The Respondent, United States Coachworks, Inc., Bohemia,
New York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating its employees about their union activities
and giving its employees the impression that their activities on
behalf of the Union are under surveillance.
(b) Reducing the overtime work of employees and discharg-
ing employees for activities protected by Section 7 of the Act.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of their rights under Sec-
tion 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order offer Robert
Bauer full reinstatement to his former position, or if that posi-
tion no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or privi-
leges previously enjoyed.
(b) Make whole Bauer and Steven Smith for any loss of
earnings they may have suffered, with interest, in the manner
set forth in the remedy section above.
(c) Within 14 days from the date of this Order remove from
its files any references to the unlawful discharges and within 3
days thereafter notify the employees in writing that this has
been done and that the discharges will not be used against them
in any way.
(d) Preserve, and within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(e) Within 14 days after service by the Region, post at its fa-
cility in Bohemia, New York, copies of the attached notice
marked “Appendix.”4 Copies of the notice, on forms provided
by the Regional Director for Region 29, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent immediately on receipt and maintained for 60
consecutive days in conspicuous places including all places

2 Under New Horizons, interest is computed at the “short-term Fed-
eral rate” for the underpayment of taxes as set out in the 1986 amend-
ment to 26 U.S.C. § 6621.
3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 964
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since April 2, 1997.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
(g) IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges violations of the Act not specifically
found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated
the National Labor Relations Act and has ordered us to post and
abide by this notice.

WE WILL NOT interrogate our employees about their union
activities and give them the impression that their activities on
behalf of the Union are under surveillance.
WE WILL NOT reduce the overtime work of employees and
discharge them for activities protected by Section 7 of the Act.
WE WILL NOT in any like or related manner, interfere with,
restrain, or coerce you in the exercise of guaranteed rights un-
der Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer
Robert Bauer full reinstatement to his former position, or if that
position no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or privi-
leges previously enjoyed.
WE WILL make whole Bauer and Steven Smith for any loss
of earnings they may have suffered, with interest.
WE WILL, within 14 days from the date of this Order, re-
move from our files any references to the unlawful discharges
and within 3 days thereafter, notify the employees in writing
that this has been done and that the discharges will not be used
against them in any way.
UNITED STATES COACHWORKS, INC.