Pfizer, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pfizer, Inc. and Houston J. Alexander. Case 14 CA 12169' September 19, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On May 31, 1979, Administrative Law Judge Rob- ert W. Leiner issued the attached Decision in this pro- ceeding. Thereafter, Respondent, Pfizer, Inc., filed ex- ceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order,2 with the following modifications. The Administrative Law Judge specifically found that Alexander would have been hired if it were not for the information received as a result of the refer- ence check. We agree. However, even accepting as we do the Administrative Law Judge's conclusion that Respondent was lawfully entitled to conduct such a reference check we do not believe that Respondent could lawfully place any reliance on the information received. The whole theme of the information received was that Alexander was an ex-union president and a trou- blemaker. Such a basis so unlawfully taints the whole evaluation that we fail to see any other aspects of his evaluation as an employee can be given credence. Ac- cordingly, although as we have indicated we do not question Respondent's right to have such a reference check made it can be relied upon only to the extent that the unlawful considerations can reasonably be said to have been removed. Here there is no doubt that the unlawful aspects colored the entire evalu- ation, and in such circumstances we are constrained to conclude that the sole and only basis for the refusal to hire Alexander was an unlawful one. Accordingly, we find in agreement with the Admin- istrative Law Judge that Respondent's refusal to hire Alexander violated Section 8(a)(l) and (3) of the Act. I As noted by the Administrative Law Judge, Obear-Nester Glass, Divi- sion of Indian Head, Inc., entered into a settlement agreement with the Regional Director in Case 14-CA-12309 and is no longer a respondent in this proceeding. The caption has been amended accordingly. 2 In light of our recent determination in Hickmott Foods, Inc., 242 NLRB 1357 (1979), we shall change the broad order recommended by the Adminis- trative Law Judge to a narrow order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge, as modified be- low, and hereby orders that the Respondent, Pfizer, Inc., East St. Louis, Illinois, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph (b): "(b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed under Section 7 of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in Bot- tle Glass Blowers Association of the United States and Canada, Local Union No. 130, AFL- CIO, or any other labor organization, by refusing to hire, or by in any other manner discriminating in terms and conditions of employment against, an employee or applicant for employment, be- cause of his membership in, activities on behalf of, or sympathy for the above-named Union or any other labor organization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them in Sec- tion 7 of the National Labor Relations Act, as amended. WE WILL offer to Houston J. Alexander imme- diate employment, without prejudice to his se- niority or other rights and privileges, dating from December 4, 1978, to the position of probation- ary employee or, if that position no longer exists, to a substantially equivalent position, and WE WILL make him whole for any loss of earnings he may have suffered as a result of our discrimina- tion against him, plus interest. PFIZER, INC. DECISION STATEMENT OF THE CASE ROBERT W. LEINER, Administrative Law Judge: This case was heard in St. Louis, Missouri, on April 16, 1979. The underlying charge against Pfizer, Inc., herein called Re- 245 NLRB No. 18 52 1958. At the present time Pfizer and Local 1850 have a 3- year collective-bargaining agreement expiring in 1980. The agreement contains a union-security clause requiring mem- bership in the Union as a condition of employment follow- ing a 60-day probationary period of employment. Pfizer also has collective-bargaining agreements with two other unions: Local 309, IBEW represents Pfizer's 7 electricians; Local 2, Operating Engineers, represents Pfizer's 10 boiler- room employees. This East St. Louis. Illinois, plant has a labor relations history commencing 1956 regarding its pro- duction and maintenance employees. Pfizer acquired the fa- cility in 1962. In the period of 1936 to the present time no unfair labor practice complaints have been issued involving this plant. In 1978 Local 1850 filed 75 written grievances against Pfizer, there was an arbitration, and there were ap- parently other grievances settled before the written griev- ance stage of the grievance procedure under Respondent's collective-bargaining agreement with Local 1850. Thus. Re- spondent has a long history of dealing with unions, and the incumbent. Local 1850, is not dormant. The Pfizer plant in East St. Louis is the major employer in that city. In 1978, 18,000 applications for employment were filed in the St. Louis plant, from which Respondent hired 31 production and maintenance employees. 4 service employees, and 4 employees in skilled trades. Applications for employment are filed continuously. but Respondent Pfizer does not inspect these applications ex- cept when openings occur which are required to be filled. Respondent's personnel manager does the actual screening and hiring of new production and maintenance employees. He reviews the applications already on file and selects only those in whom Respondent, on the basis of education and prior experience, is interested. Thereafter, the prospective employees, actually applicants for the openings, are inter- viewed. Those interviewed, in whom Respondent has a con- tinued interest, are sent for physical examination at the Em- ployer's expense, and the employees' references, provided by the candidate, are then checked. Pfizer's policy is not to hire employees who are unable to pass the company phys- ical examination, but there is no established policy prohib- iting it from hiring an employee who has unfavorable refer- ences. In the first week of November 1978 Respondent's pro- duction manager informed the personnel manager, James F. Murphy, that there was a need for three laborers. Per- sonnel Manager Murphy then screened approximately 100 existing applications and excluded all but 4 to 6 candidates. He told his secretary to contact the four to six candidates and set up interviews. Among the four to six candidates for the three openings were the Charging Party, Houston J. Alexander, and Henry Lofton. The normal interview procedure includes a description of the nature of the job, and if the candidate particularly im- presses Murphy the candidate is selected for physical ex- amination at company expense, which is $30. Because of this expense very few candidates are selected for a physical examination unless they are seriously considered. Each pro- duction and maintenance employee is told that he must serve a 60-day probationary period in a laborer's job which, essentially, requires hauling 50-pound bags of pigment. The starting salary of probationary employees in 1978 was $6.64 spondent, was filed on January 18. 1979. An Order consoli- dating cases, complaint, and notice of hearing issued on March 29. 1979, to which Respondent, Pfizer, Inc., filed a timely answer. The primary issue is whether Respondent refused to hire an applicant for employment, the Charging Party, because of lawful business and personnel consider- ations or because of an employment reference (G.C. Exh. 3), from Obear-Nester Glass, Division of Indian Head. Inc.,' in which that latter employer stated that the Charging Party should be avoided as an employee and, indeed, was ineligible for rehire by it, inter alia. because of various defi- ciencies including being a "troublemaker" and an "ex-pres- ident of the union who tends to be an instigator." Upon the entire record, including my observation of the demeanor of the witnesses and after due consideration of the briefs filed by General Counsel and Respondent after the conclusion of the hearing (the parties waived oral argu- ment), I make the following: FINDINGS OF FACT I. JURISDICTION Respondent, Pfizer, Inc., an Illinois corporation, main- tains an office and place of business at 2001 Lynch Avenue, East St. Louis, Illinois, where it is engaged in the manufac- ture, sale, and distribution of iron oxide and related prod- ucts and concedes that in the year ending December 31, 1978, a representative period, it manufactured, sold, and distributed from its East St. Louis plant products valued at in excess of $50,000, of which products valued in excess of $50,000 was shipped from said plant directly to points out- side the State of Illinois. Respondent admits and I find that at all material times it has been and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED At the hearing Respondent withdrew its denial, admitted, and I find that Bottle Glass Blowers Association of the United States and Canada, Local 130, AFL-CIO, herein called the Union, is and has been at all material times a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent's East St. Louis, Illinois, plant produces iron oxide pigment for the paint and the building supply indus- tries. It employs approximately 380 employees of whom 270 are in the production and maintenance department, which latter employees have been represented by Local 1850, Painters and Allied Trades Union, AFL-CIO, since I At the hearing Obear-Nester Glass, Division of Indian Head, Inc.. en- tered into a settlement agreement with the Regional Director, which I ap- proved, disposing of its liability in this matter. Thereafter, while no party moved to strike the name of Obear-Nester Glass from the caption it was no longer a respondent in this proceeding, PFIZER INC. 53 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1/2 cents per hour; the interviewed candidate is told that if Respondent, after the probationary period. decides to con- tinue the probationer in employment it will assign him to one of the particular job classifications where openings exist. The employee is also told that he is under an obliga- tion to join a union after the probationary period as a con- dition of employment in the classification in which the em- ployee's job exists. The probationary employee, aside from hauling bags of iron oxide, does cleanup and utility work. In the interview no further mention of unions is made and no question of the employee's union activities is asked. Fi- nally, the employees are told that the references appearing in the employee's application will be checked by Pfizer. The Charging Party, Houston J. Alexander, was em- ployed by Obear-Nester Glass, Division of Indian Head Co., Inc., in its East S. Louis, Illinois plant for more than 19 years. For the 3 to 4-year period ending in 1978 he was employed as a "group leader" in the shipping department where his principal duty on the midnight to 8 a.m. shift was to work with other employees in the loading and unloading of pallets of glass, the chief product of Obear-Nester Glass. At the end of October 1978, when Alexander learned that Obear-Nester intended to close its East St. Louis plant as of January 31, 1979, Alexander sought a new job and was able to do this during the day because he worked on the night shift. On or about November 7, 1978, Alexander submitted an employment application (G.C. Exh. 4), for work at Re- spondent's East St. Louis plant. Thereafter. he was con- tacted by Respondent, and an interview was scheduled for him. Alexander alleges that the interview took place on Wednesday, November 22, whereas Respondent alleges that it took place on November 21. The resolution of the date this interview appears immaterial, but in view of the Charging Party's confidence in the date in relation to other dates I shall accept the Charging Party's recollection that the interview took place on Wednesday, November 22. In particular, he testified that the day following the interview was Thanksgiving, Thursday, November 23, and he was unable to take the physical the day following the interview notwithstanding that he and Respondent were eager to have him take the physical examination as soon as possible. Further, Respondent submitted no written evidence such as Murphy's dated notes of the interview. The Interview of Alexander by Murphy on November 22, 1978 Murphy told Alexander that as a probationary laborer he would be performing a manual job. He asked Alexander if he knew Henry Lofton, whom he had just interviewed. Af- ter Alexander told him that he did know Lofton, Murphy told Alexander that, like the United States Marines, Pfizer was looking for a "few good men." Murphy learned at the interview, in conformity with the application. that Alex- ander had worked for Obear-Nester Glass Company for more than 19 years2 and had an industrial license, i.e., a State of Illinois license permitting Alexander to operate a forklift hi-lo truck. Murphy asked Alexander if the physical 2 Murphy found Alexander's and Lofton's long service to be "a very favor- able criteria Isic] in selection of applicants." exam.nation and the reference check were passed whether Alexander would start immediately, but Alexander told him that he could not quit his job at Obear-Nester Glass Company because to do so would eliminate receiving the severance pay which employees receive if they remained with Obear-Nester until it closed its doors. Murphy said that was all right with Pfizer, but that he wanted Alexander to be able to come to work as soon as possible. Murphy told Alexander, "I think we can use you", that the starting sal- ary for a probationary employee was $6.64 1/2 cents per hour, to be sure to take the physical as soon as possible. and that after the results of the physical and the reference check had been made he would notify Alexander "one way or another" about hiring. Murphy took and passed the physical examination about November 25, 1978. Lofton also passed the physical. On November 28, 1978, with the results of the physical at hand, Murphy instructed his subordinate, John C. Watts, a supervisor of industrial relations in the East St. Louis plant, to make a telephone check of Alexander's and Lofton's ref- erences. On November 28, 1978, Watts telephoned Obear- Nester to check the Alexander and Lofton references. At the time of his telephone call he had before him a Pfizer form entitled "Telephone Reference Check." a two-page document containing, in addition to the name of the appli- cant and the applicant's employer, the dates of employment with the prior employer, the occupation at the prior em- ployer. and seven additional questions. That executed form (G.C. Exh. 3). bearing at the top the date "1 1-28-78," is the result of Watts' telephone call to and transcribed answers from Sharon Bauer, supervisor of personnel and industrial relations at Obear-Nester Glass. Bauer's3 responses, as re- corded by Watts, show that the Charging Party correctly stated that he was a forklift driver and received a salary of $278 per week. The Answers Appearing on the General Counsel's Exhibit 3 Question 4 on the document asked: "What did you think of his/her ability and job perfirmance?". (Underscoring ap- pears in the document.) The response written by Watts pur- suant to Bauer's answer is: "Can not speak favorably." Question 5 on the document asked: "Has he/she any glaring weak points or did you have problems with him/ her?". Watts recorded the following answer: "An ex-pres- ident of the Union who tends to be an instigator." Question 6 asked: "How did he/she get along with oth- ers?". Watts recorded Bauer as saying: "A troublemaker." Question 7 asked: "Why did he/she leave your employ?". (Underscoring appears in original.) Watts recorded: "lay- off." Question 8 asked: "How was his/her attendance?". Watts recorded: "acceptable." The answer to question 9, an inquiry of any financial or personal trouble which inter- fered with the candidate's work, is merely a dash. No testi- mony was elicited at the hearing with respect to the mean- ing of the dash or whether Bauer answered any questions on this point which are not recorded. I Bauer was in the hearing room at all times but was not called to testify by any party. 54 able." Murphy testified that he asked Watts wh v this Awas so. and Murphy said that Watts told him that Alexander had trouble getting along with people and had performance problems. 4 He also told Murphy that Alexander had been president of the union at Obear-Nester. Watts. contradicting Murphy. testified that although he told Murphy that the telephone check was unfavorable, he did not recall telling Murphy why the telephone check was unfavorable or show him the answers he recorded, and his best recollection was that Murphy did not ask him wlhv the reference was unfavorable.' In particular. Watts testified that he did not tell Murphy the reason attached to Bauer's answer to question 10. advising any employer to avoid hir- ing Alexander. Murphy testified that he decided not to hire Alexander because he followed a policy of not puisuing applicants where the reference check was unfavorable. He testified that although Pfizer does not have an express or written policy of not hiring candidates with unfavorable reference checks, it was his own policy to not pursue applicants where the telephone checks on references were unfavorable on the theory that Respondent does not want to hire "some- one else's problems" where there are other qualified appli- cants. In a prior sworn statement (G.C. Exh. 6), Murphy said that once he found that a prior employer would not rehire the employee he no longer considered pursuing the em- ployee. If the employee is not reemployable by his old em- ployer, the prior employer's reason, including a refusal to rehire because of union activities, is immaterial. In his testi- mony at the hearing, however, Murphy testified that if the reason were, for instance, the employee's union activity, he would consider the reason material and would consider hir- ing the employee. On December 4, 1978, at Murphy's direction, Respon- dent sent a rejection letter to Alexander. Upon receipt of the letter Alexander telephoned Murphy and asked him what was wrong, and Murphy answered that Respondent was "looking for a few good men," and that Alexander simply "just didn't make it." When Alexander asked Mur- phy if Murphy had spoken to Alexander's supervisors as Murphy had said he would Murphy told him that he had not but instead had called the personnel department "only to verify the hiring date." Discussions and Conclusions I conclude and find, in agreement with Personnel Man- ager Murphy, that Houston J. Alexander, employed by Obear-Nester Glass Company for 19 years earning $278 per week, having an "acceptable" attendance record, appar- ently having no financial or personal trouble which inter- fered with his work, and who had the advantage of possess- ing an industrial license was an applicant with impressive credentials whom Respondent was desirous of hiring to fill 'In a prior sworn statement to the Board. Murphy had said: "I don't recall if he had a poor attendance or work record because this is not what I based my decision on." 'A moment later Watts clearly testified that he did not tell Murphy why the reference check was unfavorable. Question 10 asked: "Would you consider for re-employ- ment?". "Yes or No?". In the box marked "no" there is a checkmark and in answer to the further question "If not, why not?", Watts recorded the following: "Advise any company to stay away from him if you don't need further problems." Alexander testified and it is not disputed that at no time in the 5 years preceding the end of his employment with Obear-Nester was he ever warned or punished concerning the quality or quantity of his work. It it further uncontested that Alexander was a member of Local 130, Bottle Glass Blowers Association of the United States and Canada, AFL-CIO, and was an officer of that organization for 9 to 10 years. He ceased being vice president on or about Octo- ber 25, 1978, after about 2-1/2 years in the office. There is no contradiction that Alexander processed grievances on behalf of unit employees at Obear-Nester and had an acri- monious relationship with Sharon Bauer, the industrial re- lations supervisor. One grievance filed by Alexander was directed at her personally with the request that she apolo- gize for certain conduct directed to Alexander. It is also uncontested that Alexander, as part of his union duties, regularly remained at Obear-Nester's plant to process griev- ances and conduct investigations on behalf of Local 130 for several hours after his quitting time at 8 a.m. The evidence is also uncontested on this record that aside from the information it elicited from Bauer through Watts' November 28 phone call Respondent had no knowledge of Alexander's union activities at Obear-Nester or the rela- tionship between Alexander and Supervisor Sharon Bauer. Nor is there any evidence that Respondent made any in- quiries concerning Alexander other than those which ap- pear on General Counsel Exhibit 3, and there is no evi- dence that Watts or any other Respondent's agent had any further conversation with Bauer or with any other supervi- sor or other person at Obear-Nester Glass Company con- cerning Alexander's performance as an ex-employee or his conduct as an officer or member of Local 130 of the Glass Blowers Union. It is also clear that Watts, in his conversation with Bauer, learned that Henry Lofton had been a Local 130 shop stew- ard. Watts testified that he concluded that Obear-Nester's reference was unfavorable based solely on the responses to question 4 and 10: poor job performance, ability, and re- fusal to consider for rehire. Murphy's Testimony Concerning Alexander's References It is uncontradicted that in the interview with Alexander Murphy told Alexander that the results of his physical ex- amination and the reference check would determine if he would be employed by Pfizer. Thereafter, Murphy told Watts, as above noted, to conduct a phone reference check on at least four candidates, including Alexander and Lof- ton, whom Murphy had interviewed and who had im- pressed Murphy. On November 29 Murphy, desiring the successful appli- cants to start work as soon as possible, asked Watts how the reference check had come out. Watts was standing in the door of Murphy's office at the time. Watts told him that the telephone reference check on Alexander was "unfavor- PFIZER. INC 55 DECISIONS OF NATIONAL LABOR RELATIONS BOARD one of the three openings. Indeed, Murphy told Alexander during the interview following Alexander's statement that he had an industrial license that: "I think we can use you." Therefore I conclude that Murphy was impressed with Alexander's classifications and would have hired him but for the results of the reference check. Alexander, as an ap- plicant for employment, is protected against discrimination under the Act. See Phelps Dodge Corporation v. N.L.R.B.. 313 U.S. 177 (1941). The complaint alleges that Respondent, in violation of Section 8(a)(1) and (3) of the Act, refused to hire Alexander because Obear-Nester Glass Company supplied an employ- ment reference describing Alexander as ineligible for rehire at Obear-Nester Glass Company because of his union ac- tivities. As noted in J. R. Sousa & Sons, Inc., 210 NI.RB 982, 985 (1974), it is a rare case where there is direct evi- dence of a purpose to violate the statute. Rather, in order to supply a basis for inferring discrimination, "it is necessary to show that one reason for the refusal to hire] is that the employee was engaged in protected activity. It need not be the only reason but it is sufficient if it is a substantial or motivating reason, despite the fact that other reasons may exist." See N.L.R.B. v. Whiten Machine Works, 204 F.2d 883, 885 (Ist Cir. 1953). In footnote 16 in J. R. Sousa & Sons, supra, the Board adopted the Administrative Law Judge's statement that the use of the word "solely" in N.L.R.B. v. The William J. Burns International Detective Agency, Inc., 406 U.S. 272 (1972), relating to discriminatory motivation does not overcome the settled and frequently court approved Board principle that a partial but signifi- cant discriminatory contributory factor is sufficient to taint the conduct.' Again, in J. R. Sousa, supra, pp. 984-985: "We have been repeatedly told that the issue in cases of this type is not 'whether there was a proper cause for the [refusal to hire] . . but also, conceding such cause, whether the employer acted on it, or for reasons, prohibited by the Act. Onan v. N.L.R.B., 139 F.2d 728, 730 (8th Cir. 1944).' " Murphy testified that he relied on Watts' statement to him that the report from Obear-Nester was unfavorable, that Obear-Nester refused to hire Alexander, and that as a matter of his own wisdom Murphy did not desire another employer's problems regardless of the reason given if the employer would not himself rehire the employee. The prior employer's statement that he would not rehire the employee is, on this record, according to Murphy's prior sworn state- ment, dispositive of Murphy's policy of not hiring the em- ployee. Again, in his testimony at the hearing he added an exception: except in cases where the employer discloses that the reason that the prior employer would not rehire the employee would be illegal. In substance, Murphy testified that that was not the case here because he relied on Watts' telling him only that Alexander had trouble getting along with other people and had performance problems. There is 6 See fn. 16 in J. R. Sousa & Sons, supra, p. 985. It may also be arguable that certain courts of appeal are adopting a more stringent rule for finding discriminatory motive where there are conflicting inferences to be drawn from an employer's conduct: Liberty Mutual Insurance Company v. N.L.R.B. 592 F.2d 595 (Ist Cir. 1979): Coletti's Furniture, Inc. v. N.L.R.B., 550 F.2d 1292, 1293-94 (Ist Cir. 1977); and Waterbury Community Antenna, Inc. v. N. LRB. (2d Cir. 1978), 587 F.2d 90. no doubt that such statements appeared on the document which Watts prepared from his conversation with Sharon Bauer, but as noted above the Watts-Murphy testimony is in hopeless contradiction as to what Watts and Murphy discussed. It is admitted that Watts told Murphy that Alex- ander had been president of Local 130 and that Obear- Nester would not rehire him. If Murphy's decision not to hire Alexander were based on his inability to get along with others and with poor job performance I would have no trouble in finding that the evidence failed to show that Re- spondent was even partially propelled by a discriminatory motive in refusing to hire Alexander. The conflicting testi- monies of Watts and Murphy and Murphy's prior sworn statement and self-contradiction do not permit that conclu- sion here. First, I find incredible Watts' testimony that he told Mur- phy merely that the result of the telephone reference check was unfavorable, and that Watts concluded that it was un- favorable solely on the basis of Bauer's statements concern- ing questions 4 and 10 without reference to the other Bauer answers. Again, it should be recalled that question 4 was answered, in substance, with Bauer saying that she could not "speak favorably" concerning Alexander's ability and job performance and that in answer to question 10 Bauer advised "any company to stay away from him if you don't need further problems." Second, what I find particularly incredible in Watts' tes- timony is his bland assertion that although he told Murphy of the unfavorable response he did not tell Murphy why or show him the answers, and most unbelievably that Murphy did not ask why. I find that it is incredible that Murphy, having been told by Watts that Alexander had been union president and would not be considered for rehire, did not ask about the answers and, in conjunction, did not ask to see the answers. Indeed, Murphy contradicted Watts wherein Watts had testified that he did not tell Murphy why the reference check was unfavorable and did not show him the answers; whereas Murphy testified that although Watts did not tell him why the telephone reference check was unfavorable, he testified that he asked Watts why and that Watts told him. I would, of course, credit Murphy and discredit Watts in that. Murphy, as an experienced personnel manager, would normally ask why the reference check was unfavorable after his subordinate told him it was unfavorable. This would be particularly true in the case of a candidate for employment like Alexander who favorably impressed Murphy and, hav- ing passed the physical exam, would have been hired but for the reference check. Third, Murphy's prior statement contradicting the intelli- gence he had received from Watts states that he did not recall if Watts had a poor attendance or work record. Watts, according to Watts' and Murphy's testimony, told him, inter alia, that Alexander had a poor work record ac- cording to Sharon Bauer's responses. Indeed, it is on the very issue ("what do you think of his/her ability and job performance?"), that Watts said that he had made up his mind that Bauer's responses were unfavorable. Yet, since ' Alexander's 19 years with Obear-Nester, which so impressed Murphy, did not apparently stir Watts to enquire into the bases for Obear-Nester's forbearance in keeping an allegedly poor worker so long on the payroll. 56 consider him for rehire was not to hire an applicant even it the basis on which the prior employer acted was due to the applicant's "union activities." Since the prior employer's policy of not rehiring in such a case would be illegal Re- spondent, by adopting such a policy with a blind eye, would itself be adopting an unlawful policy. Cf. Si)ux (itr Foundr. 241 NLRB No. 68 (1979) (Member Jenkins con- curring). Murphy's prior sworn statement, the statement of Respondent's chief personnel supervisor in the plant. is sub- stantive evidence. probative of Respondent's polico on hir- ing Alexander. Cf. 4lvin J. Bar, & Co., Inc.. 236 NLRB 242 (1978). His change of position at the hearing comes too late and is no more credible than the reasons he originally ad- vanced for rejecting Alexander. Respondent insists that its long plant history of freedom from unfair labor practice complaints and of active union representation among its several units of employees justifies the inference that its refusal to hire Alexander flowed from Murphy's decision based on a benign motive, and that to hold otherwise is to have the Board substitute its idea of personnel administration for Respondent's. See Golden Nugget, Inc.. 215 NLRB 50, 53 (1974) and cases cited. However, Murphy testified that he refused to hire Alex- ander because Respondent wanted to avoid taking on some other employer's "trouble." The precise issue is whether that avoidable "trouble," in Murphy's own evaluation. in- cluded in significant part Alexander's being a union "insti- gator" and "troublemaker." The evidence, including admis- sions in Murphy's prior statement, the testimonial contradictions between Watts and Murphy. and the incon- sistencies between Murphy's testimony and his prior state- ment (all on issues relating to the reasons Respondent re- jected Alexander), lead me to the inference which I draw that Respondent largely rejected Alexander because it wished to avoid a union troublemaker s among its employ- ees. Such motivation, though perhaps reasonable, is tainted and unlawful. See J. R. Sousa & Sons, supra. Evidence of Respondent's lawful conduct elsewhere is not persuasive here. CONCLUSIONS OF LAW I. Pfizer, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Bottle Glass Blowers Association of the United States and Canada, Local Union No. 130, AFL-CIO, herein called the Union, at all material times has been and is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent, Pfizer, Inc., violated Section 8(a)3) and (I) of the Act on December 4, 1978, by refusing to hire an applicant for employment, Houston J. Alexander, for whom a job existed, because of his membership in and ac- tivities on behalf of the above-named labor organization. I Respondent's hiring of Henr Lofton, a known union steward at Obear- Nester, does not support an inference that Respondent rejected Alexander for lawful reasons. Certainly there is no evidence that L.ofton. lke Alex- ander, was known to Respondent as a union instigator or troublemaker. Lofton's references from Obear-Nester are not n eidence, though appar- entl) procured bS Watts. Murphy testified that Watts told him, in response to Mur- phy's question to him on November 29. that the reasons that the responses were unfavorable were that he had trou- ble getting along with others and performance problems, it is difficult to understand why Murphy would state under oath that he could not "recall if [Alexander] had a poor attendance or work record." These contradictions by Watts and Murphy are destructive of their credibility and require the inference that the truth lies elsewhere. In short, I do not believe the substance of Murphy's or Watts' testimony, for it is clear to me that Murphy and Watts did discuss Bauer's responses (G.C. Exh. 3), and in fact discussed the fact that Alexander. as an ex-officer of the Union, tended ". . . to be an instigator," and a "trouble- maker." There is no reasonable doubt in my mind that after and because of this discussion Watts and Murphy decided not to hire Alexander. I conclude, therefore, contrary to Murphy's and Watts' testimony, that one of the consider- ations which lead to Murphy's refusal on December 4, 1978, to hire Alexander was, as alleged, Sharon Bauer's statement to Watts that Alexander "tended to be an instiga- tor" as ex-president of Local 130. Fourth, in reaching this result I am also mindful of the fact that every statement on General Counsel Exhibit 3 re- lating to Bauer's resonses to Watts' questions is vague and, at best, in conclusionary form except for one statement of fact: the statement of fact being that Alexander was an ex- president of Local 130 who tends to be an instigator. Thus, with regard to the prior question, question 4, what Bauer thought about Alexander's ability and job performance, the answer is in conclusionary form and quite evasive: "Cannot speak favorably." With regard to how he got along with others the response is "a troublemaker." The other conclu- sionary statement is merely the advice to stay away from Alexander as an employee if Pfizer "did not need further problems." The document, on its face and on balance, therefore shows that the one clear statement of fact regard- ing Alexander as a "troublemaker" or "instigator" is that he was ex-president of the Union. In short, the document notes that Alexander's attendance was acceptable, that his termination of employment was as a "layoff," that he was a "troublemaker" (but does not say what type of trouble), that his ability on the job was not the subject of favorable comment, but there was no specific type of unfavorable comment mentioned. Again, the evidence on the basis of General Counsel Exhibit 3 shows a concentration and par- ticularization on only one element, that Alexander was an instigator and troublemaker because of his status as ex- president of the Union. On the one hand, therefore,, in conformity with the Board's rule in J. R. Sousa & Sons, supra, the credited evi- dence appears to be that at least one of the reasons that Respondent did not hire Alexander was because of the ele- ment of union instigator appearing on General Counsel Ex- hibit 3. Under the Board's rule such a reason is sufficient to taint Respondent's motive in rejecting Alexander as a pro- bationary employee. Moreover, despite his testimony contradicting his prior sworn statement (G.C. Exh. 6), given in the presence of his attorney, Murphy stated therein that Respondent's policy of not hiring an applicant whose prior employer would not PFIZER. INC. 57 DECISIONS OF NATIONAL LABOR RELAFIONS BOARD 4. The above unfair labor practices affect commerce and the free flow of commerce. THI REMEI)Y Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that Respondent cease and desist from engaging in such conduct and take certain affirmative action designed to effectuate the policies of the Act. I have found that Respondent. in violation of Section 8(a)(3) and (1) of the Act, unlawfully refused to hire Hous- ton J. Alexander. I shall recommend that Respondent offer him immediate and full employment and that Respondent make him whole for any loss of pay resulting from the dis- crimination against him, commencing December 4, 1978, by payment to him of a sum of money equal to the amount he would have normally earned as wages from that date until Respondent offers him initial employment as a proba- tionary employee. Backpay shall be reduced by net interim earnings and shall be computed on a quarterly basis in the manner proscribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977). 9 Upon the basis of the above findings of fact, conclusions of law, and the entire record in this proceeding and pursu- ant to Section 10(c) of the Act I hereby issue the following recommended: ORDER I' The Respondent, Pfizer, Inc., its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Bottle Glass Blowers Association of the United States and Canada, Local Union No. 130, AFL-CIO, herein called the Union, or any other 'See, generally, Isis Plumbing & Hearing Co.. 138 NLRB 716 (1962). to In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. labor organization by refusing to hire or in any other man- ner discriminating in terms and conditions of employment against an employee or applicant for employment because of his membership in, activities on behalf of; or sympathy for the Union or any other labor organization. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed them in Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policy of the Act: (a) Offer to Houston J. Alexander immediate employ- ment, without prejudice to his seniority or other rights and privileges, dating from December 4, 1978, to the position of probationary employee or, if that position no longer exists, to a substantially equivalent position, and make him whole for any loss of earnings he may have suffered as a result of the discrimination against him in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and other reports necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its East St. Louis, Illinois, place of business copies of the attached notice marked "Appendix."" Copies of the said notice, on forms provided by the Regional Di- rector for Region 14. after being signed by an authorized representative of Respondent, shall be posted by it immedi- ately upon receipt thereof and be maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by other materi- als. (d) Notify the Regional Director for Region 14, in writ- ing, within 20 days from the date of receipt of this Order, what steps Respondent has taken to comply herewith. 1 In the event that this Order is enforced by a Judgment of a United States Court of Appeals. the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the Na- tional Labor Relations Board." 58