Five Star Air Freight Corporation

FIVE STAR AIR FREIGHT CORPORATION Five Star Air Freight Corporation and Local 161, In- ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 4- CA-9636 September 21, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On June 26, 1979, Administrative Law Judge Rob- ert A. Giannasi issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. The General Counsel filed a brief in opposition to Respondent's exceptions. 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 briefs and has decided to affirm the rulings, findings,' and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order.3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that Respondent, Five Star Air Freight Corporation, Essington, Pennsylvania, its officers, I Respondent has excepted to certain credibility findings made by the Ad- ministrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 In the absence of exceptions thereto, we hereby adopt pro forma the Administrative Law Judge's dismissal of par. 5(b) of the complaint, which alleges that on August 15. 1979. Department Head Joseph Cirella threatened employees with discharge if they supported the Union. Respondent contends in its exceptions that the Administrative Law Judge improperly relied on Respondent's failure to raise Paterson's supervisory status in its answer. Although it is not clear that the Administrative Law Judge relied on such failure, we find it unnecessary to, and do not, rely on the fact that Respondent first raised this issue at the hearing. 3The Administrative Law Judge recommended that Respondent cease and desist from "in any other manner" interfering with the employees' Sec. 7 rights. We find that the issuance of a broad order is warranted in this case. Thus, Respondent unlawfully discharged five employees. Three of the dis- charges constituted Respondent's entire accounts receivable staff. Further- more, there were extensive interrogations by not only Department Head Cirella but also Respondent's president, Donald Pettinelli. In addition, there were threats of discharge. Thus, we find Respondent's unlawful conduct to be sufficiently egregious and widespread to warrant a broad order. Cf. Hick- mott Foods, Inc., 242 NLRB 1357 (1979). agents, successors, and assigns, shall take the action set forth in said recommended Order. DECISION STATEMENT OF itlE CASE ROBERT A. GIANNASI, Administrative Law Judge: This case was heard before me in Philadelphia. Pennsylvania. on April 9 and 10. 1979. The complaint, as amended. including at the hearing, alleges that Five Star Air Freight Corpora- tion (herein called Respondent) violated Section 8(a)(3) and (I) of the Act by terminating the employment of five union adherents and violated Section 8(a)( 1 ) of the Act by various incidents of threats and coercion. Respondent denied the allegations in the complaint. The General Counsel and Re- spondent filed proposed findings of fact and conclusions of law and supporting memoranda. Based on the entire record in this case, including the tes- timony of the witnesses and their demeanor. I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENI Respondent is a corporation engaged in the business of airfreight forwarding and maintains a facility located in Es- sington. Pennsylvania. During the past year Respondent had gross revenues in excess of $500,000 and purchased goods valued in excess of $50.000 directly from points lo- cated outside of the Commonwealth of Pennsylvania. Ac- cordingly, I find, as admitted in the answer, that Respon- dent is an employer engaged in commerce ithin the meaning of Section 2(6) and (7) of the Act. It. TE I.ABOR ORGANIZATION INX().VED Local 161. International Brotherhood of Teamsters. Chauffeurs, Warehousemen, and Helpers of America, the Charging Party Union (hereafter referred to as the Union), is a labor organization within the meaning of the Act. ttl. THE UNFAIR LABOR PRA(TI(CES A. The Facts At all material times herein, until September 1978. Re- spondent operated in rather cramped facilities in Sharon Hill. Pennsylvania. A move was contemplated to a newl constructed facility in Essington, Pennsylvania. The move took place in September 1978. At its Sharon Hill facility. Respondent had several departments, including the ac- counts receivable and accounts payable department under Department Head Joseph Cirella. There were 14 accounts receivable employees and 3 accounts payable clerks. The claims department was composed of two people, Supervisor David Kemp and employee Romelle Thompson. The traffic and rates department had two employees. and the data pro- cessing department had five. including one, Florence Chap- pell, whom General Manager Dennis Gunn described as a 245 NLRB No. 37 173 DEC(ISIONS OF NATIONAL LABOR RELATIONS BOARD supervisor. Other departments, not directly involved in this case, including operations and sales. Some of the employ- ees. including the accounts receivable and accounts payable employees, worked in the main building, and others worked in trailers adjacent to the main building. During July' 1978 there was some talk about unions among employees of Respondent. On August 9, 1978, em- ployees Romelle Thompson, Anna D'Annunzio, Janet Pat- erson, Doris Cornish, and Selina McKeon participated in a conversation about unions in Respondent's accounts pay- able office. Paterson, C'ornish, and McKeon constituted the entire accounts payable department. Thompson was an agent in the claims department, and D'Annunzio was em- ployed as a traffic and rate clerk in the traffic department. Thompson and D'Annunzio worked in the same trailer and were passing through the accounts payable office. Joseph Cirella, manager of the accouts receivable and accounts payable department, had his office just a short distance away from where the employees were speaking. During the conversation Thompson discussed her prior employment at the Boeing-Vertol Company. She stated that that company was unionized and that the pay scale and benefits were good. Thompson said that Respondent needed a union. Later that day, after speaking with Pater- son, employee Cornish got in touch with Edward Kaiser, an official of the Union. A meeting of employees was sched- uled for Monday, August 14, 1978. The next day Cirella called Paterson into his office and asked her if Thompson had said anything to her about a union. Paterson said that they had been discussing the union at Thompson's prior place of employment. Cirella then began to tell her about his previous job at Tose Truck- ing. He stated that after a union came on the scene. the staff was reduced by almost 50 percent, and the accounts receiv- able and collection work was farmed out to collection agen- cies. On Monday, August 14, 1978, Thompson was informed by her supervisor, David Kemp, that she was laid off due to lack of work and because the claims and traffic departments would be merging. Prior to that day Thompson had never been told about a decision to merge the departments or that her layoff was threatened or impending. She was not re- placed. and Kemp. who was doing some traffic and rate work, took over all the claims work. On the same day Thompson was laid off, a meeting had been scheduled with Kaiser. Cornish spoke with McKeon. Paterson, and Florence (Dee Dee) Chappell about resched- uling the date of the union meeting. It was rescheduled to Wednesday, August 16. Shortly after Thompson's termination Cirella again spoke with Paterson. He asked if she had heard about Thompson. He asked what Paterson thought was the reason for the layoff. She responded, "[L]ack of work," because she had heard that this is what Thompson was told. Cirella asked, "[W]hat do you think about that?" Paterson shrugged and did not respond. Cirella also spoke to the other employees in the accounts payable office about unions. He again discussed his experiences at Tose Truck- ing and mentioned that unions force people to lose their jobs and force employers to farm out their work. On Wednesday, August 16. 1978, a meeting was held at Union Representative Kaiser's house. Present were Kaiser. (ornish. Paterson, Thompson, and another union official. Authorization cards were distributed and signed. Addi- tional cards were given to Cornish for distribution to other employees. After the meeting Cornish distributed union cards to approximately eight employees, including D'An- nunz.io and McKeon. McKeon then solicited the signature of another employee and returned the card to Cornish. On Friday, August 18, McKeon and Paterson engaged in a conversation with ('irella in the accounts payable office. ('irella informed the employees that they were scheduled to tour Respondent's new facility the following week. The three engaged in some joking conversation. The subject of unions was mentioned. Cirella remarked to Paterson. "IWlatch it 'J,' you're going to be fired." McKeon then stated that Paterson had not done anything and asked what Cirella meant. He then turned to her and told her to watch herself. Cirella's testimony is as follows: "It was a light mo- ment, and I swung around --they were kidding about some- thing irrelevant to unions, and somebody says, I think I'll join a union and I said, you're fired, and then somebody else said it and I swung around and said, you're fired, too and we laughed about it and that was it." Cirella admit- tedly knew the day before that a decision had been made to lay off his three accounts payable clerks. On August 19 and 20, 1978, employees D'Annunzio, McKeon. Cornish, and Paterson were sent telegrams notify- ing them that they were laid off. The telegrams stated that the employees should contact Respondent "so that a time can be arranged for you to claim any personal effects and final compensation." No official from Respondent spoke to these employees about the telegrams, and no reason was given for the layofifs. None of the employees had been given any advance warning that their layoffs or terminations were impending. On Monday. August 21, 1978, Donald Pettinelli. pres- ident and part owner of' Respondent, directed Cirella to telephone employee Rosemary Fellona at her home. Fel- lona was on maternity leave at the time. The conversation began with (irella stating that they had been friends for a long time and directing Fellona to "tell me what you know." Fellona asked what he meant. and Cirella asked if she had heard about Paterson. Following a negative re- sponse, Cirella said that Paterson and Cornish were instiga- tors in a unionization attempt. Fellona was then asked if she had signed anything. She said she had not, even though she had previously signed a union card, and asked Cirella why he was so upset about the union matter. Cirella replied that Respondent "did not need" a union. He then asked if Fellona would be willing to come in to cover for his secre- tary, who was going on vacation. The person who usually filled in for the secretary was performing Janet Paterson's work at the time. Pettinelli was present while Cirella was making his call to Fellona. Later. Pettinelli individually met with a number of employees and asked each of them what he or she knew about the union organization campaign and whether he or she had been solicited. After Respondent moved to its new facilities in Septem- ber 1978, Fellona spoke with Cirella on several occasions. 174 FIVE STAR AIR FREIGHT CORPORATION He asked if she had heard from her "girlfriend," meaning Paterson, attributed some of his health problems to Pater- son, and remarked that if Paterson had only come to him, he could have saved her job. After the layoff of the accounts payable clerks, several accounts receivable employees under Cirella performed the accounts payable work along with Cirella himself. This oc- casioned an increase in the use of overtime. The accounts payable department remained under Cirella's control for about 3 months after the layoffs before it was merged into a new department under a new supervisor. The three ac- counts payable clerks were replaced on September 18, 1978. by three new employees. None had previous experience in traffic, rates, or accounts payable. In January 1979 there were three accounts payable clerks on Respondent's payroll. One of these was D'Annunzio, who was recalled on September 25, 1978, after having sent a letter to Kaiser asking him to return to her the union authorization card that she had signed in August. She was told that the traffic department was expanding by its new manager, Frank Sisliano. One of the other new accounts payable clerks was given a raise in January 1979, after a 90- day evaluation which stated that she "does not catch on as quickly" as another clerk because "she has been out of the working world for many years." General Manager Dennis Gunn admitted that besides the employees laid off in August 1978, only one other em- ployee, Mary Jane Crane, had been laid off since 1975. Other evidence in this case indicates that Mary Jane Crane was laid off not for economic reasons but because of a bad work record.' B. Discussion and Analrsis 1. The 8(a)(1) violations The credited testimony discussed above establishes that Respondent violated the Act by the following conduct: 1. Cirella's interrogation of employee Paterson about union discussions between her and other employees. 2. Cirella's threat to employees Paterson and McKeon, on their last day of work, that they would be fired, in cir- cumstances which clearly indicated that the reason was their union activity. Even though the comment was made in the context of a friendly conversation, in the circumstances of this case it had the tendency to coerce the employees. The above is primanly based on the credited testimony of employees Paterson, Cornish. McKeon, Thompson. and Fellona, whom I found to be honest and candid witnesses and whose testimony in certain respects was mutually corroborative. Cirella corroborated them in part and did not deny other parts of their testimony. To the extent that there are conflicts between his testimony and that of Paterson. Cornish, McKeon. and Fellona. I do not credit Cirella, whose testimony I found to be contrived and unreliable. Par- ticularly contrived was his effort to establish that Paterson was a supervisor, contrary to all objective evidence in this case. Also unreliable was the testi- mony of Dennis Gunn and employee D'Annunzio. who was recalled after she foresook the Union and was a reluctant witness. Both were evasive wit- nesses whose demeanor and testimony did not inspire confidence. Gunn was particularly evasive on testifying about the timing of the layoffs, particularly Thompson's, his telegram to D'Annunzio, and the timing of the other lay- offs. Pettinelli professed not to be involved in an) of the personnel decisions. but his rather direct reaction to the union campaign is a telling indicator of Respondent's motives in this case. Cirella had, in several conversations with employees prior to the threat, exhibited the dangers of bringing a union on the scene and questioned Paterson about the union conver- sation with Thompson and again about Thompson's termi- nation. Moreover, Paterson and McKeon were in fact ter- minated the very day after the threat was made. Accordingly. Cirella's remarks were not only revealing but coercive. 3. Cirella's telephonic interrogation of employee Fellona as to the union activities of her and others. 4. President Pettinelli's separate interrogations of em- ployees about their knowledge of the union campaign and their participation in it. Pettinelli admitted such conduct. and in the circumstances I find that the matter was fulls litigated and related to the issues in the complaint, although not specifically alleged in the complaint. 5. 1 do not find that Cirella's ambiguous remarks in an August 15. 1978. conversation with Paterson about Thomp- son's discharge amounted to a threat of discharge. and therefore I will dismiss this aspect of the complaint. 2 2. The 8(a)(3) violations Respondent's "layoffs" of the three accounts payable clerks and the claims clerk. Romelle Thompson, were dis- criminatory. All participated in a conversation about unions on August 9, 1978. Thompson suggested forming a union. Paterson and Cornish decided on contacting a union official and setting up a union meeting. All signed union cards. Paterson. Cornish. and Thompson attended the union meeting, and McKeon solicited another employee to I reject Respondent's contention made not in Its answer hut at the hearing in this case that Paterson was a supervisor within the meaning of the Act. Paterson was an employee. Paterson was evaluated periodically, and nothing in those evaluations, the last of which is dated June 5. 1978. makes reference to her being a supervi- sor; they list her as a clerk, and the description of duties contains no super- visory powers Paterson does not assign work to other employees. No assignmeni of work is necessary. since all incoming paperwork is routed to the accounts payable clerk responsible for either airlines, trucking. or agent work. Paterson does not grant overtime or time off. although she did relay request for time off to Cirella, her supervisor. She has no authonty to discipline or formally evalu- ate employees She was the most senior and highest paid of the three ac- counts payable clerks. As such, Paterson answered questions from and filled out sick leave slips for the other accounts payable clerks. These. however. were simply routine clerical functions or the normal responsibility of a senior experienced employee. Respondent alleges that Paterson effectively recommended the hiring of employees and their discharge. The record. however, reflects only three ex- amples, which do not sustain Respondent's position. In November 1977 Ci- rella interviewed an employee for hire, and Paterson sat in on the interview. Later .irella asked her what she thought of the applicant. Paterson recom- mended that she be hired, and Cirella hired her. Cirella also discussed the performance of two employees with Paterson. and one, Mary Jane Crane, was laid off for breaking company rules. Cirella asked Paterson to write up problems attributed to Crane, and she did. recommending Crane's discharge. Nothing in this testimony shows the authority to effectively recommend hire or discharge using independent judgment. In addition, the incidents are iso- lated, and the recommendations, if an. were made at the request of Clrella. They do not show real authority to speak independents as an arm of man- agement. Nor was Paterson ever told she was a supervisor, and her evalu- ations never said she was. In addition, the circumstances of her termination belie the contention that Paterson was a supervisor. She was fired without pnor warning, and no supervisor replaced her, esen though there are pres- ently three accounts payable clerks, as there were when she was employed. Finally. I found the testimony of Gunn and Clrella attempting to establish Paterson's supervisory status to be wholly unreliable 175 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sign a card. Thus, it is clear that these four employed initi- ated the union activity. The timing of the terminations supports the inference that they were discriminatorily motivated. All four employ- ees were fired about a week after the initial attempt to start a union. The initial conversation was on August 9. The next day Cirella interrogated Paterson and Thompson's remarks concerning a union. The union meeting was initially sched- uled for August 14, and employees, including Supervisor Chappell, were notified of the meeting. Thompson was ter- minated that day, without prior warning. The union meet- ing was held on August 16, and Gunn and Cirella conceded that the decision to lay off the other three employees was made on August 17. On August 18 Cirella accurately fore- cast their termination. But no prior warning of or explana- tion for the layoffs was given to the affected employees, and they were terminated over the weekend, by telegram. The suddenness and timing of the terminations thus support the inference that they were discriminatorily motivated. Respondent's union animus and knowledge of the union activity is clear. Cirella interrogated Paterson about the ini- tial union conversation which took place near his office. Cirella also spoke to all three accounts payable clerks about the negative effects of unionization at his previous employ- er's place of business, even suggesting that collection work was farmed out. Cirella also threatened that two employees would be fired for belonging to a union. Thus, perhaps un- wittingly, Cirella revealed to the employees Respondent's real motivation in terminating the accounts payable clerks. Cirella knew at this point that a decision had already been made to terminate the accounts receivable employees, but did not reveal it to them or tell them a lawful reason for their impending termination. It is obvious that Cirella, at least, knew of the union activity of Thompson, Paterson, McKeon, and Cornish. In addition, it appears that the employees shared their interest in forming a union with Supervisor Chappell, who eventu- ally informed President Pettinelli of this effort. Pettinelli's immediate response-directing a call to employee Fellona and interrogating a group of employees about the Union- indicates the apprehension with which Respondent viewed a union campaign. Finally, according to the credited testi- mony, Cirella, in his telephone conversation with Fellona, all but admitted that Paterson and Cornish were fired for instigating a union. Indeed, upon her return to work Fel- lona was asked by Supervisor Marge McCarty whether she heard about the girls who started the Union. The circumstances surrounding the "layoffs" confirm their discriminatory nature. The accounts payable clerks were not even warned about an impending layoff-even on Friday, when Cirella threatened they would be fired for joining a union, a day after the decision to terminate them had been made. Moreover, it is clear that the layoffs were really discharges, because none of the employees was re- called, even though the accounts payable clerks were re- placed by inexperienced employees within I month. Fi- nally, the telegrams notifying the accounts payable clerks of their layoffs gave no reason and suggested a finality to the action which is inconsistent with a layoff based on business reasons. In short, Respondent's sudden termination of the leaders in the union effort at its facility within 10 days of the beginning of that activity, taken together with Respon- dent's animus against the Union expressed by Cirella, shows that the terminations were because of the employees' union activity. Respondent's defenses are unpersuasive, and the failure of its reasons for the terminations to withstand scrutiny supports my finding of discrimination. First of all, Respondent alleges that Thompson was laid off because of lack of work in the claims department. Gen- eral Manager Gunn testified that David Kemp took over all Thompson's duties and that Thompson was not replaced. He also testified that this change was occasioned by a "re- structing [sic] of the claims department"-a decision made "several weeks" prior to the layoff. Gunn was evasive when asked about the timing of the layoff. If the decision was made several weeks before the layoff, why was Thompson not given any advance notice of the impending layoff? On the other hand, if, as Gunn also testified, he was going to consolidate departments "after we got into the new facil- ity," why was Thompson terminated well before the move to the new facility? Kemp did not testify, and no documen- tary evidence was submitted to show a diminution in the claims work. The layoff had nothing to do with Thompson's work record. In these circumstances Respondent has failed to give any adequate reason for Thompson's layoff to rebut the evidence that the sudden layoff, without prior warning, of the leading union advocate shortly after her suggestion that a union be fored was discriminatory. Respondent's explanation for the layoffs of the three ac- counts payable clerks is likewise without merit. Respondent states that the accounts payable department was going to be merged into the traffic and rates department after the move and that the three incumbent employees would need rate experience to better perform their jobs, and it was thought that they were incapable of learning rate work. The objective evidence refutes all these contentions. First, in an August 2 letter to the owners, Gunn explicitly stated that he could not make any reorganizational changes until after the move--which took place in September-because he was so preoccupied with the move. In that letter he did not men- tion that the accounts payable clerks were too incompetent to make any necessary readjustments. Gunn contended that Paterson, Cornish, and McKeon lacked the ability and experience to learn rate work. Yet he never even consulted the employees' evaluation forms or told them of their alleged incompetence. Indeed, Paterson's evaluations, which were admitted into evidence, indicate she was a veteran, competent, and highly regarded em- ployee. She was so highly regarded that Respondent asked for her opinion on all sorts of work-related matters and argued in this proceeding that she was so valued that she was a supervisor-an anomalous position explainable only by the fact that the discharge of a supervisor is normally not an unfair labor practice. Respondent's story is rendered completely implausible by the fact that it hired three new accounts payable clerks, one of whom was so inexperienced that this fact was noted on her first evaluation and none of whom had traffic or rate experience. Moreover, for 2 or 3 months following the layoffs, accounts receivable personnel performed the accounts payable function. Obviously, they did not have traffic experience or any sort of experience in 176 FIVE STAR AIR FREIGHT CORPORATION accounts payable work. Indeed, the alleged reorganization did not even take place for 3 months after the layoffs. Ac- cordingly. it is clear that Respondent's argument that the accounts payable clerks were somehow incompetent is com- pletely without merit.' In view of my findings set forth above that Respondent unlawfully terminated employees Thompson Paterson. Cornish. and McKeon, I also find that Respondent in- cluded employee D'Annunzio in its blanket layoffs because it believed that she too was a union instigator. She partici- pated in the union conversation in the accounts payable department, worked in the same trailer with Thompson, and signed a union card. She was laid off under the same circumstances and at the same time as the accounts payable clerks. Her telegram contained the same language as the others. She was not warned in advance of her impending discharge. It is thus likely that she was laid off for the same reason -a desire by Respondent to rid itself of union insti- gators. Respondent sought to counter this evidence at the hear- ing by introducing testimony based on the testimony of Gunn and D'Annunzio, both of whom were unreliable wit- nesses, that the reason for D'Annunzio's termination was that she had contracted mononucleosis and had failed to present a doctor's note certifying her fitness for work. Thus, it appears that D'Annunzio missed I week of work in Au- gust due to illness. She returned to work on Monday, Au- gust 14, and worked for 3 days. At some point she informed her superior, Tom Kiley, that she had mononucleosis. On Wednesday, August 16, she asked Kiley if she could be excused from work because she did not feel well. Kiley told her that she should not return to work until she was able to present a doctor's note. D'Annunzio did not return to work that week. On August 19 D'Annunzio received a telegram from Gunn informing her that she had been laid off and requesting that she make arrangements to collect her per- sonal effects and final compensation. At some point during the next month she sent a letter to Union Representative Kaiser requesting that he return her union card. On Sep- tember 25. 1978, D'Annunzio returned to work. She had received a telegram recalling her. and on the previous Fri- day she had received a note from her doctor allowing her to go back to work. On her first day back she met with Gunn. who informed her that her layoff was due to her illness. Gunn testified that when he first learned of D'Annunzio's illness, he told Kiley not to allow her to continue work Respondent makes much of an alleged $400,000 deficit in 1977 which required transferring accounts payable to the traffic department. Respondent alleges that the deficit, which represented the difference between estimated costs and actual billings from the carrier, was reduced to $61.000 in 1978. There is no evidence that this deficit was attributable to incompetence on the pan of the accounts payable clerks. Admittedly, the deficit was caused. in partn, by other factors such as underestimates by field personnel or over- changes by the carner. Moreover. since the deficit was reduced significantly in 1978, it is likely that the incumbent accounts payable clerks either aided in the reduction of the deficit they worked for three-fourths of 1978 or had nothing to do with the deficit. It is unlikely that the deficit as reduced entirely in the last quarter of 1978. under Cirella's continued supervision. considering the obvious problems with the move and utilization of tempo- rary and new employees for the accounts payable function In shor. Respon- dent has failed to show that the alleged deficits were caused by the accounts payable clerks, who in any event were never told that their work was not being ably performed. without a doctor's note. However. (unn decided to send a telegram to D'Annunzio. The telegram contains no refer- ence to either her illness or a doctor's note. Rather, the telegram is identical i form to those sent to the accounts payable clerks. It mentions D'Annunzio's layoff and con- tains references to "final compensation" and to claiming any personal effects still on the premises. When confronted with this inconsistenc y, (iunn could only offer the lame ex- cuse that the telegram was an afterthought and that out of haste he included the same wording as contained in the others. I reject the testimony of Gunn and D'Annunzio to the effect that the hiatus in her employmnent from August 16 to September 25 was temporary. D'Annunzio's request ftr the return of her union authorization card raises questions about the true nature of her layoff. The letter states that she was in the process of seeking new employment and had secured a new position. Obviousl,-. she did not believe that all she needed to do to come back to work was to secure a doctor's excuse. This strongly suggests that D'Annunzio's layoff was permanent. as indicated in the telegram. In addition. D'Annunzio's testimony concerning possible contacts between her and Respondent between the times of her layoff and recall is completely unreliable and inconsis- tent. She was quite emphatic at some points in her testi- mony that she had no contacts with Respondent between her layoff and her recall on September 25. However, D'An- nunzio also testified that she was recalled shortl, after she secured a doctor's note but that she never informed Re- spondent that she had secured a doctor's note before being recalled. At one point she testified that after being sent a September 25 telegram recalling her to work. she called Gunn to inquire about her return to work and at that point informed him that she had a note. Gunn testified he never spoke with D'Annunzio but instructed a supervisor to con- tact her about the note. It appears that D'Annunzio was recalled before Respondent had any notification of her health status. It is clear, moreover, that she was recalled after she renounced the Union. In these circumstances I cannot accept her testimony or that of Gunn as establishing a nondiscriminatory reason for the original layoff. She was recalled after having rejected the Union, and neither her testimony nor that of (iunn is believable in establishing a nondiscriminatory reason for the original la off. CoN(CIlUSIONS oi LAw I. By interrogating employees about their union activi- ties and those of other employees and by threatening to discharge employees because of their union activities, Re- spondent violated Section 8(a)( 1 ) of the Act. 2. By terminating the employment of Janet Paterson. Romelle Thompson, Anna D'Annunzio. [Doris ('ornish. and Selina McKeon because of their union activities. Re- spondent violated Section 8(a)(3) and (I ) of the Act. 3. The above violations are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. Til RistiI) I shall order Respondent to cease and desist from the conduct found unlaw ful herein and to post an appropriate 177 DEC('ISIONS O()F NATIONAI I.ABOR REI.ATIONS BOAR[) notice. I shall also order Respondent to offer all the dis- criminatees except D'Annunzio. who has been reinstat- ed full and immediate reinstatement to their former jobs or, i those jobs no longer exist, to substantially equivalent positions. without prejudice to their seniority or other bene- fits, rights, and privileges, and make them and )D'Annunzio whole for all losses of earnings and benefits caused by Re- spondent's unlawful termination, to be computed as pro- vided in FA 14'. Woolworth ('ompaitV. 90 NLRB 289 (1977). and Florida Steel Corp.. 231 NLRB 651 (1977). See. gener- ally'. i. Plumbing & Heating Co.. 135 NLRB 716 (1962).4 Upon the foregoing findings of fct and conclusions of law, and pursuant to Section 10(c) of the Act. I hereby issue the following recommended: ORD)ER' The Respondent, Five Star Air Freight Corporation. Es- sington, Pennsylvania, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Terminating employees or discriminating against them in regard to their hire or tenure of employment or any term or condition of employment because they have en- gaged in activities on behalf of a labor organization. (b) Interrogating employees about their union activities or those of other employees. (c) Threatening employees with discharge or other repri- sals for engaging in union activities. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaran- teed them under Section 7 of the Act. 2. Take the following affirmative action, which is neces- sary to effectuate the policies of the Act: (a) Offer to Janet Paterson. Romelle Thompson, Selina McKeon, and Doris Cornish full and immediate reinstate- ment to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or toher rights and privileges, and make them and Anna D'Annunzio whole for any loss of earnings they may have suffered as a result of their discriminatory termi- nations in the manner set forth in the section herein entitled "Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- 'Although D'Annunzio's testimony suggests it was unlikely that she would have been fit for employment from August 19, 1978. to September 25. 1978, 1 leave the backpay liability. if any, with respect to her to the compli- ance stage of this proceeding. 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. roll and other records necessary or useful in order to ana- lyze and determine the amount of backpay due under this Order. (c) Post at its offices in Essington, Pennsylvania. copies of' the notice attached hereto marked "Appendix. "" ('opies of said notice. to be furnished by the Regional Director for Region 4, shall, after being duly signed by Respondent's representative, be posted by it immediately upon receipt. and maintained for 60 consecutive days thereafter. in con- spicuou!; places. including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 4. in writ- ing. within 20 days from the date of this Decision what steps Respondent has taken to comply herewith. I In the event that this Order is enlorced by a Judgment of a United States Courl of Appeals, the words in the notice reading "Posted bh Order of the National L.abor Relations Board'" hall read "Posted Pursuant toI a Judgment of the United States Court of Appeals Enforcing an Order of the National l.abor Relalions Board." APPENDIX No I(' To EMPI.OYEES Pos:I), BY ORDER OF TtEI NAI'IONAI. LABOR RILA.TIONs BOARD An Agency of the United States Government After a hearing in which all sides had the opportunity to give evidence, an administrative law judge of the National Labor Relations Board has found that we violated the Na- tional Labor Relations Act and has ordered us to post this notice. WE WILL.. NOI terminate or discriminate against our employees in regard to their hire or tenure of employ- ment or any term or condition of their employment because they have engaged in activities on behalf of a labor organization. WE WIltl. NOt interrogate our employees about their union activities or those of other employees. WF wnii. Noi threaten our employees with discharge or other reprisals because they engage in union activi- ties. WE WILt. NOI in any other manner interfere with, restrain, or coerce our employees in the exercise of' the rights guaranteed them under Section 7 of the Act. WE WHLi. offer to Janet Paterson, Doris Cornish. Ro- melle Thompson, and Selina McKeon full reinstate- ment to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, and pay them and Anna D'Annunzio for any loss of earnings they may have suffered because of our discrimination against them, with interest. FIVE SIAR AIR FREIGHII CORPORA ION 178