Savoy Brass Mfg. Co.

SAVOY BRASS MANUFACTURING COMPANY Savoy Faucet Co., Inc. d/b/a Savoy Brass Manufac- turing Company and Metal Production and Novelty Workers Union, Local 28-A, International Brother- hood of Painters and Allied Trades, AFL-CIO. Case 29-CA-6156 March 15, 1979 DECISION AND ORDER By MEMBERS PENELLO, MURPHY, AND TRUESDAI.E On October 13, 1978, Administrative Law Judge Walter H. Maloney, Jr., issued the attached Decision in this proceeding. Thereafter, the General Counsel and Respondent filed exceptions and supporting briefs, and Respondent filed a brief in opposition to the General Counsel'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 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. We agree with the Administrative Law Judge's finding that the remarks allegedly made by Eugene Charon concerning Respondent's hiring policies are not attributable to Respondent. In this regard, the Administrative Law Judge relied solely on his finding that Charon is a nonsupervisory employee. We agree that Charon is not a statutory supervisor. The Board has long held. however, that a conclusion that an individual is not a supervisor is not dis- positive of the question of whether that individual is acting as an agent of an employer. See, e.g., Helena Laboratories Corporation. 225 NLRB 257. 258 (1976); Samuel Liefer and Harry Ostreicher, a Copartnership d/b/a River Manor Health Related Facility, 224 NLRB 227. 230-231 (1976): and Cleven- ger Logging Inc.. 220 NLRB 768, 778 (1975). Nevertheless, we find that the record is insufficient to establish that Charon is acting as an agent of Respon- dent. Moreover, the General Counsel's offer of proof with respect to Char- on's duties for his previous employer. Phelps-Dodge, even if true, is not material to Charon's agency status with Respondent. 2 The Administrative Law Judge concluded that Respondent violated Sec. 8(a)3) and (1) of the Act by its delay in offering employment to Carmen Garcia, John Luscavage, and Olga Vega. Respondent excepts to this finding on the grounds, inter alia. that the complaint alleged unlawful refusals to hire, but did not specifically allege unlawful delays in hiring. Although the complaint did not specifically allege these violations found by the Adminis- trative Law Judge, the issues were fully litigated at the hearing and the record fully supports his conclusions. Furthermore, the violations found with regard to these individuals are closely related to the violations alleged in the complaint. Accordingly. we adopt the Administrative Law Judge's finding of these violations. See Gerald G. Gogin d/b/a Gogin Trucking, 229 NLRB 529 (1977). Further, in agreeing with the Administrative Law Judge's finding that Respondent unlawfully discriminated against Garcia. J. Luscavage, and Vega, we specifically note that Respondent's manufacturing superintendent, Lentini, acknowledged that Luscavage and Vega, as well as Garcia. were good employees. Thus, Lentini testified, inter alia, that Luscavage was "like clock work" and "you don't have to worry about him." Similarly. with re- conclusions' of the Administrative Law Judge and to adopt his recommended Order, as modified herein. The Administrative Law Judge found that Respon- dent was motivated by union considerations in refus- ing to hire Gerardo Pinzon and thereby violated Sec- tion 8(a)(3) and (I) of the Act. We disagree. Joseph Lentini, Respondent's manufacturing su- perintendent, testified that Pinzon was not hired by Respondent because the position he had previously held had been eliminated and there was no opening for him. Further, Lentini, based on his prior experi- ence in working with Pinzon, stated that there were some jobs Pinzon could not perform due to his ten- dency to develop hives in response to various condi- tions in the plant, such as dust and oil. He added that the hives caused Pinzon to lose working time. The Administrative Law Judge found that Respondent's asserted reasons for not hiring Pinzon were factually unsupported by the record. It appears from Pinzon's own testimony that his disability was not, in fact, job related. Nevertheless, Pinzon himself admitted that during his tenure with his previous employer he was absent from work once or twice a month due to his hives. In light of this admission, and the fact that Respondent was under the reasonable assumption that there were no jobs in which it could place Pinzon without adversely affect- ing his physical condition, we cannot find that Re- spondent's asserted reasons for not hiring Pinzon were factually unsupported. We therefore conclude that the evidence is insufficient to establish that Re- spondent's failure to hire Pinzon violated Section 8(a)(3) and (), and we shall modify the recommend- ed Order accordingly. 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, Savoy Faucet Company, Inc., d/b/a Savoy Brass Manufac- turing Company, Long Island City, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraphs 2(a) and 2(b): "(a) Offer employment to Blanca Amaya. "(b) Make whole Blanca Amaya, John Luscavage, gard to Vega, Lentini testified, "A good worker, very diligent. Her attend- ance was good...." As the Administrative Law Judge concluded with respect to Garcia, these sentiments, coupled with Respondent's asserted de- sire to hire only the "cream of the crop," are inconsistent with Respondent's delay in making offers of employment to these individuals. 241 NLRB No. 7 51 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Carmen Garcia, and Olga Vega for any loss of pay suffered by them by reason of the discrimination practiced against them, in the manner described above in the section entitled 'Remedy.' " 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 After a hearing in which all parties had an opportuni- ty to present evidence, the National Labor Relations Board has found that we committed certain unfair labor practices and has ordered us to post this notice. We intend to abide by the following: WE WILL NOT refuse to employ job applicants. WE WILL NOT delay making offers of employ- ment to job applicants because they have en- gaged in union activities. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of rights guaranteed them by Section 7 of the Act. WE WILL offer ajob to Blanca Amaya, and WE WILL make her and John Luscavage, Carmen Garcia, and Olga Vega whole for any loss of pay they have suffered by reason of the discrimina- tion practiced against them, with interest. All of our employees are free to become or to re- main members of Metal Production and Novelty Workers Union, Local 28-A, International Brother- hood of Painters and Allied Trades, AFL-CIO, or any other labor organization. SAVOY FAUCET COMPANY, INC. D/B/A SA- VOY BRASS MANUFACTURING COMPANY DECISION STATEMENT OF THE CASE FINDINGS OF FACT WALTER H. MALONEY, JR., Administrative Law Judge: This case' came for hearing before me in Brooklyn, New York, upon an unfair labor practice complaint,' issued by 'The name of the union, Metal Production and Novelty Workers Union, Local 28-A, International Brotherhood of Painters and Allied Trades, AFL- CIO, was amended at the hearing. 2 The principal docket entries in this case are as follows: Charge filed herein by Metal Production and Novelty Workers Union, Local 28-A, International Brotherhood of Painters and Allied Trades, AFL- CIO (herein called Union), on January 9, 1978; complaint issued by the Regional Director for Region 29 on March 7. 1978; Respondent's answer filed April 4, 1978; hearing held in Brooklyn, New York, on July 17 and 18, 1978. the Regional Director for Region 29. which alleges that Re- spondent Savoy Faucet Company, Inc.,' now doing busi- ness as Savoy Brass Manufacturing Company, violated Sec- tion 8(a)( I) and (3) of the Act. More particularly, the complaint alleges that Respondent refused to hire II named persons who had formerly worked for the Phelps-Dodge Corporation at the same location in the same kind of manu- facturing operation because said individuals had picketed Respondent's plant in an effort to obtain employment. Re- spondent has hired 2 of the I pickets, asserts that it unsuc- cessfully offered employment to I other, and refused to hire the rest for a variety of nondiscriminatory reasons. Upon the contentions, the issues herein were joined. I. THIE UNFAIR LABOR PRACTICES ALLEGED For more than 30 years an assortment of plumbing fix- tures has been manufactured by a succession of employers at a plant located on 35th Street in Long Island City. The business was originated by the Savoy Brass Manufacturing Company, a company owned and operated by Max and Richard Kadish. The Kadishes still own the building. About 1971 or 1972, they sold the manufacturing business to the Phelps-Dodge Corporation, which continued to oper- ate it until July 22, 1977. At one time Phelps-Dodge, doing business as Savoy Brass, occupied three buildings and em- ployed about 175 people, but, for reasons described in the record by Respondent's present plant manager, Joseph Len- tini, Phelps-Dodge's plumbing fixture business declined precipitously to the point where it decided to close the plant, terminate this aspect of its overall operations, and lay off all of the employees who were still employed at this location. About 80 people were terminated at the time of the plant closing, including a number of salaried employees. Phelps-Dodge sold its machinery and inventory at the Long Island City location to David Weisz and the Fairfield Equipment Company, who acted as liquidators. The liqui- dators sold some of the equipment and inventory to pur- chasers in the South. On or about October 1, it sold the remainder to Clinton and Ronald Goerler, the principals of Savoy Faucet Co., Inc. Shortly thereafter, they began to manufacture a limited variety of plumbing fixtures at the same location under the trade name Savoy Brass Manufac- turing Company. The General Counsel does not contend that Respondent, sometimes called herein Savoy Faucet, is a successor in the legal sense to the Phelps-Dodge Corpora- tion. The Goerler brothers have a number of other business interests which require their attention. Ronald Goerler de- votes only a very small portion of his time to Savoy Faucet, while Clinton Goerler spends about half of each working day at the premises. The current manufacturing operation 3 Respondent admits, and I find, that it is a New York corporation which maintains its prinicipal place of business in Long Island City, New York, where it is engaged in the manufacture, sale, and distribution of faucets, plumbing fixtures, and related products. Since September 1, 1977, Respon- dent has sold and delivered from its New York plant directly to points and places located outside the State of New York goods and materials valued in excess of $50.000. Accordingly, it is an employer engaged in commerce within the meaning of Sec. 2(2), (6), and (7) of the Act. The Union is a labor organization within the meaning of Sec. 2(5) of the Act. 52 SAVOY BRASS MANUFACTURING COMPANY is substantially under the control of Lentini, who has worked successively for Savoy Brass, Phelps-Dodge, and now Savoy Faucet. Though Lentini is now the plant man- ager, his position with the former manufacturer was nonsu- pervisory. About six or seven former Phelps-Dodge fore- men and managerial employees, including plant engineer Joe Ferrigno, assist Lentini in Savoy Faucet operation. At present, Lentini handles personnel, programs production, advises on purchasing, and lays out the tooling. Ferrigno takes charge of the actual production. Lentini had no con- nection with personnel matters when the plant operated un- der the Phelps-Dodge ownership. He remained on the Phelps-Dodge payroll until January 1, 1978, to assist in the liquidation effort, but in fact assumed certain responsibil- ities for the Goerlers during that interim period. Phelps-Dodge had a contract with the Union covering all of its Savoy Brass production and maintenance employees. The contract had a conventional union shop provision, so all or almost all of the nonsupervisory employees who were terminated at the plant closing in July were union members. On October 31, 1977, the Union began to picket the prem- ises of Savoy Faucet with signs stating that Crestgood (one of the Goerler enterprises) was unfair. All of the II former Phelps-Dodge employees named in the complaint (and pos- sibly others as well) participated in the picketing effort. Sev- eral of them testified in this proceeding that they were pick- eting to "get their jobs back." The Union apparently made a demand upon the Goerlers for recognition, whereupon Savoy Faucet filed both an 8(b)(7)(C) charge against the Union and a representation petition (Case 29-RM-547). An expedited election was held at the plant on December 2. The Union challenged the votes of 23 Savoy Faucet em- ployees whose names appeared on the Excelsior list on the basis that they had been illegally hired to replace former Phelps-Dodge employees. The Regional Director overruled these challenges. One vote was cast in favor of the Union and 22 were cast against it. Some 23 former Phelps-Dodge employees, including the I I discriminatees, presented them- selves at the polling place and attempted to vote. Their votes were challenged by both the Board agent and the Company because they were not employees and their names were not on the voting list. These challenges were sustained and a certification of results was issued. On the date of the election, the 23 former Phelps-Dodge employees whose votes had been challenged went to the Savoy Faucet office after the election together with Saul Lasher, the Union's business representative. They spoke with one of the Goerlers and with Lentini, who was not then a Savoy Faucet employee. Respondent's attorney was also present. Lasher had obtained the signatures of each of these employees on separate forms which read: "I worked for Savoy Brass for -years as a -----. I would like to work for Savoy immediately and I am avail- able for work." These forms were presented to the Com- pany officials who were present. Clinton Goerler told them that the Company had no openings at the present time but would call them when jobs became available. At that time Respondent had slightly in excess of 20 employees. At the time of the hearing in July 1978, it had grown to about 60 employees. The increase in the work force was occasioned by the rapid expansion of Respondent's business in a rela- tively short period of time. During the late fall of 1977, when the Goerlers were starting up the Savoy Faucet operation, a number of con- versations on the subject of unionization occurred involving either a Goerler or one of their supervisors. On one occa- sion before the December 2 election, Lasher visited the plant to claim that the painters "had jurisdiction" over the shop. Ferrigno's reply to him was that if the new Company were going to have a union, he would prefer an indepen- dent union to the painters. Lentini testified that he never heard the Goerlers express any opinion on the subject of unionization but speculated at the hearing that they would prefer an independent union to the painters. In this particu- lar, Ferrigno contradicted Lentini's testimony, stating that on one occasion in his presence and in Lentini's presence, Ron Goerler stated that they would prefer to operate the factory as a nonunion shop. However, Goerler did not say that they preferred to hire only nonunion job applicants. A number of statements were attributed to Eugene Charon, an employee of Savoy Faucet, who was at various times a foreman for Phelps-Dodge. As hereinafter dis- cussed, I am of the opinion that Charon was never anything more than a leadman for Savoy Faucet, so his remarks and the questions he put to individual employees amount to nothing more than an expression of his own opinions and his own curiosity. On one occasion, Supervisor Joseph Zar- zycki (Joe Zarek) told pickets that they did not deserve to come back in the shop and there was no use picketing be- cause the bosses did not want a union in the shop. Some- time before the new owners resumed production, prior to the commencement of the picketing, Naomi Hernandez, a laid off Phelps-Dodge employee, visited the plant and asked Supervisor Anthony Samaniego for a job. Samaniego said that they had no jobs at that time and were only cleaning the machines in preparation for selling them. He also told her that the Company did not want people from the Union and that they did not want the Union. Mrs. Hernandez reported this conversation to the union Hall. Ferrigno ad- mits telling job applicant Earl Henry some time in October that the plant would operate as a nonunion shop. On March 20, 1978, discriminatee John Luscavage started to work for Savoy Faucet. On April 4, discriminatee Carmen Garcia also started to work, although not in a po- sition comparable to the supervisory job she had held with Phelps-Dodge. Respondent offered a job to discriminatee Olga Vega, but she was unable to accept because she could not obtain the services of a babysitter for her child. The other eight discriminatees named in the complaint have not been offered jobs by Respondent. Out of 60 persons in the employ of Respondent on July 18, 1978, some 21 formerly worked for Phelps-Dodge. Presumably they were all union members during their tenure with that employer. Out of a total of 89 persons hired by Respondent since it started operations in late October 1977, some 22 are former Phelps- Dodge employees. These latter figures include persons now on the payroll as well as others who were hired but have been terminated.' Lentini and others testified that at least one of the Goerler brothers is active in a religious move- ' Estimates in the record provided by Lentini which he made in summary form show slightly different figures from those found above. I feel that the figures set forth above, taken from the actual records of Respondent. are more precise and accurate than Lentini's estimate. 53 i)ECISIONS OF NAIIONAI. I.ABOR RELATIONS BOARD ment known as The Way. The Way is not a conventional church but is a religious ministry which has a definite set of religious beliefs and practices which include Bible readings and prayers at the job. Lentini testified that neither of the Goerlers has ever expressed to him a desire or requirement that members of The Way be granted preference in hiring. However, he sensed such a desire on their part in order to assist in a rehabilitation effort of a number involved in The Way ministry, and he has followed such a practice since taking over as plant manager. A number of the employees hired from the membership of The Way are individuals who lack job skills and work experience or who have per- sonal difficulties which stand as impediments to their em- ployment. As a result, a number of these individuals have been hired but were terminated after short periods of em- ployment. As of the time of the hearing, some nine perma- nent production employees are The Way members. An- other 12 members have been hired since October 1977, but have been terminated over a period of time for reasons of unsuitability. II. ANALYSIS ANI) (ON('I ISIONS A. The Supervison, Status of Eugene Charon From time to time Eugene Charon was a supervisor for Phelps-Dodge. At other times, he was a union member and a member of the Phelps-Dodge bargaining unit. Respon- dent now employs him as a leadman in the polishing and grinding section. He works with seven other employees and is supervised by John Gilberg. Charon is an experienced grinder. He is hourly rated and is paid more than any other employee in this section. Normally Gilberg assigns work to the employees in this section, although he may occasionally pass along an order to other employees through Charon. Any disciplinary matters involving employees in the polish- ing and grinding section are handled by Gilberg. Charon often instructs new employees how to operate a particular piece of equipment. As he is bilingual, he is sometimes used as an interpreter when company supervisors wish to com- municate with Spanish-speaking employees. Occasionally Charon has given Gilbert or others his opinion as to the skill or efficiency of an employee in his section. These duties and functions clearly establish that Charon is a nonsupervi- sory employee. Accordingly, as indicated above, certain comments which he made to Mrs. Garcia and other em- ployees concerning Respondent's hiring policies are his own opinion and may not be attributable to Respondent. B. The Refusal to Rehire Eight Named Discriminatees There is no question that, between October 31 and De- cember 2, all of the discriminatees named in the complaint participated in a picketing effort which took place in front of Respondent's premises. They were all former Phelps- Dodge employees, so it is incontestable that Respondent knew of their union affiliation and activities when it made its hiring decisions. Respondent acknowledges as much but claims that such considerations played no part in its deci- sion not to hire them. Lentini, who was not in a position to supervise the Phelps-Dodge operation, testified without contradiction that Phelps-Dodge ran a poor operation, turned out poor quality goods, and that the laxity and inef- ficiency of its management were what contributed to its decline and eventual fall. Part of this "loose ship," in his opinion, was the fact that Phelps-Dodge was operating with employees whom Lentini did not wish to employ now that he was in a position to run the plant in accordance with his own views. Moreover, he regarded his own bosses, the Goerlers, as strict and straightlaced individuals who would not tolerate employee hanky-panky, and he has tried to accommodate his employment practices to their views and desires as he perceived them. In trying to run a "taut ship," Lentini has made conscious judgments not to hire 8 of the 11 discriminatees named in the complaint. The nature of these judgments-whether bona fide or pretextual-is what is principally in issue in this case. In assessing this close question of motive, it is well to state at the outset certain premises on which the assessment must proceed. Savoy Faucet is not a successor to Phelps- Dodge but is a stranger to the former employer of these individuals. It has no obligation to hire any of Phelps- Dodge's former employees. Its duty in this regard is a nega- tive one to refrain from refusing to hire any former Phelps-Dodge employees, all of whom were unionized, be- cause of their former union affiliations or their current union activities. Because Savoy Faucet and Phelps-Dodge are essentially strangers to each other, certain comments in the transcript about reinstatement or "getting our old jobs back" are mere figures of speech which misdescribe the ac- tual posture of the parties to this proceeding. The jobs in question are new jobs and all those who occupy them are new hires. In staffing a new operation, Lentini was at liberty to choose the best applicants available and to avoid Phelps- Dodge's asserted mistakes if he could. He testified that this was his avowed purpose in recruiting employees for Savoy Faucet. In avoiding the alleged errors in Phelps-Dodge's employ- ment practices, Lentini felt constrained to engage in one hiring practice which does not commend itself to an em- ployer who hires strictly on the basis of the objective quali- fications. Lentini hired a number of unqualified individuals who were members of a religious movement favored by his Employer, in order that those individuals might be given work experience which would rehabilitate them and help them out of their various personal difficulties. If they proved totally unsuitable, they were discharged. While this type of hiring practice is unconventional, its basis was not and is not a discrimination in hire or tenure designed to promote or discourage unionization. It has often been said that an employer may hire or fire for good reason, bad reason, or no reason at all, so long as the reason is not motivated by union considerations. The motivation for hir- ing individuals recommended by The Way members was not coldly economic. It was colored by candidly stated charitable and philanthropic considerations, but these con- siderations do not detract from Respondent's argument that its personnel actions have not been discriminatory as the Act views that term. Statements made by Lentini, one of the Goerlers, and others are certainly frank admissions that Respondent wished to operate a nonunion establishment. None of these remarks was alleged to be an independent violation of the 54 SAVOY BRASS MANUFACTURING COMPANY Act. Rather. the General Counsel relies upon them as evi- dence of animus which might serve to explain other related actions which are specifically charged as violations of the law. For the most part, these remarks express nothing stronger than preference. If such preference is the equiv- alent of animus, then most if not all employers come into an unfair labor practice hearing tainted by animus from the outset. If the remarks in question constitute something stronger than preference, then further examination must be made to see how or whether this animus was applied in practice. Some 21 of Respondent's present complement of 60 em- ployees are former Phelps-Dodge employees. Presumably they are persons whose union affiliations were known to their Employer at the time of their employment. We do not know how many of the Phelps-Dodge group of 80 laid off' employees actually applied for work at Savoy Faucet. We do know that 23 of them did so on December 2, and pre- sumably others did the same on other occasions. Hiring 21 out of 23-plus applicants is a solid indication that past union affiliations were not a factor in Savoy Faucet's hiring determinations. The 21 hired constitute one-third of the current work force, a fact which also suggests that union membership has not been a handicap to a significant num- ber of present employees. This figure also denotes more than mere tokenism by Respondent in the hiring of union members. The large number of former union members on Respondent's present payroll belies the contention that the remarks about preferring to run a nonunion shop amount to animus, since the actions of Respondent speak louder than these words. Faced with these statistics, the General Counsel is forced to a fall-back position; namely, that union membership was not the thing which bothered Re- spondent so much as active unionism in the form of picket- ing. Three out of at least 11 pickets were offered jobs as well. In light of factors in this record which point in opposite directions, whether a failure or refusal by Respondent to hire one Phelps-Dodge (i.e.. a union) employee as distin- guished from another amounted to an illegal discrimina- tion, or whether the decisions were bona fide. actually must turn, in the last analysis, upon the reasons given for declin- ing to employ each individual and the facts supporting those reasons. This discussion, therefore, must move from general considerations to particular evaluations and the evi- dence which bears out each of those reasons. a. Rudy Creitoff had been an employee of Savoy Brass and Phelps-Dodge for some 19 years. He had worked at various jobs in the plant and was in the assembly section when the plant closed on July 22, 1977. He made an indi- vidual application for a job in September 1977. at which time Lentini told him that he would call him if a job be- came available. When he was not hired. he began to picket. He was one of the 23 who filed applications with union assistance on December 2. Lentini states that he decided not to hire Creitoff because he was accident prone. Creitoff denies knowing of the ter- minology "accident prone" but admits that he had several accidents years ago in the machine section of the plant and had another accident in April 1976. which limits the kind of work he is able to do. He states that he can do assembly work and packing, but admits that he cannot lift heavy packages. When ('reitoff acknowledged that he has had a lot of accidents. he admitted the factual premise which sup- ports Lentini's decision not to hire him. Accordingly, I can- not say that the reason asserted by Lentini was either false or pretextual, and so would dismiss the complaint as to Creitoff. b. Alfredo Hernandez began working at the factory in 1968 and has worked in the assembly and testing areas. Lentini made no adverse comments concerning the quality of his work. However, he stated flatly that during the Phelps-I)odge regime Hernandez acted as a numbers run- ner in the plant, and he testified further that he had first hand knowledge of Hernandez' gambling activities. On this point I credit Lentini, and I flatly discredit Hernandez' de- nial that he ever played or ran numbers while working for Phelps-D)odge. Lentini also said that he was aware that Hernandez had been warned about his numbers activities by the Phelps- Dodge plant manager prior to the closing of the plant in July. Lentini testified that he knew that the present owners were strict religious people who would not be as tolerant and as easygoing about illegal gambling on the job as Phelps-Dodge had been. For that reason he decided that he would be running a risk if he permitted Hernandez to come back to the plant. The reason asserted respecting Hernan- dez was certainly valid and cogent, and it is a reason which I find to be factually supported. Accordingly, I would dis- miss the complaint as to Alfredo Hernandez. c. Naomi Hernandez is the wife of Alfredo Hernandez. She worked in the assembly area and on testing machines for about 8 years. l.entini stated that he did not want her to return to the plant for the same reason that he did not want her husband to return, namely his belie that the Goerlers would not tolerate the promotion of illegal gambling on the premises. I.entini admitted that he had no first hand knowl- edge of Mrs. I-lernandez' involvement in numbers running but felt that it was common knowledge in the Phelps-Dodge plant that she and her husband were actively involved in this activity. I discredit Mrs. Hernandez' denial that she was involved in numbers activities, a denial which extended to an assertion on her part that she did not even know that numbers betting took place in the Phelps-Dodge plant. Len- tini was certainly at liberty to base a hiring decision upon well founded hearsay. and I conclude that the reason he asserted tfr not hiring Mrs. Hernandez was his actual rea- son. Accordingly. I would dismiss the complaint as to Na- omi Hernandez. d. In the somewhat larger Phelps-l)odge operation, both Dominic Gutowski and discriminatee Frank Feimer worked in the toolrooml. Respondent needed only one tool- maker for its reduced activit\ and chose Gutowski over Feimer. eimer claimns that the choice was discriminatory. based upon union considerations. In support of Respon- dent's selection of (utowski as toolmaker I.entini testified that it was Ferrigno. the plant engineer, who preferred Gutowski because Feimer could not tform tools. although Feimer did make dies and worked on jugs and fixtures. Feimer. who had worked at the plant for 19 ears. testified that in his opinion he had performed better than Gutowski on several specified machines: others disagreed. He did ad- mit that when making out an individual application to 55 DECISIONS OF NATIONAL LABOR RELATIONS BOARD come to work for Savoy Faucet he had specified that he wanted his old job back in the toolroom. Gutowski was not hired until after the picketing ceased. When Ferrigno contacted him during the picketing to ask him to come to work, he replied that he had a job elsewhere and would not come to work for Savoy Faucet until the picket line went down. While Feimer gave evidence to the employee of union activity by picketing, Gutowski certainly demonstrated union sympathy and support by announcing to Ferrigno a refusal to cross the Union's picket line. In light of these facts, any discrimination based upon union activities between Gutowski and Feimer would require a measurement on their respective degrees of support for the painters which is simply too fine to calibrate. The Board cannot second guess the business judgment of an employer who hires one qualified individual instead of another indi- vidual for a single opening. It can only evaluate the situ- ation to determine if the decision was, in fact, a business decision and not one prompted by union considerations. As both Feimer and Gutowski were capable of performing the work in question and as both had evidenced union senti- ments and activities to Respondent, it cannot be said that the choice of either one was designed to promote or dis- courage union membership or activities. Accordingly, I would dismiss the complaint as to Feimer. e. Gerardo Pinzon began working at the factory in 1968. He worked at a variety of jobs, including the toolcrib and the receiving department. During the last 4 years of his employment by Phelps-Dodge, he was the painters' shop steward. Pinzon was also the union observer at the Decem- ber 2 election. There is no evidence that his application for employment was limited to working at the toolcrib, a job which was abolished by Respondent when it reorganized the production operation. Lentini testified that Pinzon was not hired because the position he formerly occupied no longer existed and also because he lost time due to allergies to dust and oils which caused him to break out when assigned to certain jobs in the plant. In fact, Pinzon could perform a wide variety of jobs in the plant and signified his availability for any one of them when his application for employment was made on December 2. Pinzon did not, in fact, have any allergies which reacted adversely when he worked in various jobs in the plant. He suffered from hives, a disability which was not job related and which he was told by his doctor was the result of nervousness. Unlike some of the other cases herein, the refusal to hire Pinzon presents a decision involving fac- tors of long time and continued union leadership, as evi- denced from his position as shop steward and as union ob- server at the election, coupled with an excuse which was factually unsupported in the record. Accordingly, I con- clude that by refusing to hire Gerardo Pinzon when a larger number of jobs which he could perform were available, Re- spondent was prompted by union considerations and thereby violated Section 8(a)(l) and (3) of the Act. f. Lentini testified that he decided not to hire Blanca Amaya because of her record of absenteeism at Phelps- Dodge. Mrs. Amaya worked about 2 years for Phelps- Dodge in the packing section. She felt that she had a good attendance record but admitted that she was off from work about 3 weeks because of an operation. In addition to the mass application for work which all discriminatees made on December 2, she made another individual application. In January 1978 she spoke personally with Lentini at the plant and gave him another application. She argued with him on this occasion, asking him why he had hired new people to do work which she had been doing for Phelps-Dodge. Len- tini told her on this occasion that possibly he could call her for employment in 2 weeks, but the call never came. Like the other discriminatees named in the complaint, Mrs. Amaya engaged in picketing Respondent's premises in the late fall of 1977. Unlike the cases of some of the other discriminatees, there is no solid foundation for Respon- dent's proffered excuse for not hiring her. A single absence of limited duration for an undisputed medical reason does not constitute absenteeism in any fair sense of the word. Absenteeism suggests a practice of repeated and irregular absences which impede production scheduling because of the uncertainty generated by an employee's unstable work habits. There is none of this in evidence respecting Mrs. Amaya. She was simply sick on one occasion, and that is all the record herein reflects. Accordingly, I conclude that the reason asserted for Respondent's refusal to hire her in the face of her emphatic request for employment is without any factual foundation. Accordingly, I conclude that the reason which was proffered was pretextual and that, by refusing to hire Blanca Amaya, Respondent violated Section 8(a)(1) and (3) of the Act. g. Lentini testified that he also declined to hire Doris Perez because of Mrs. Perez' record of absenteeism. Mrs. Perez worked for Phelps-Dodge for about 2 years in the assembly section. She suffers from asthma which is particu- larly acute in cold weather. She admits missing work from time to time, especially in the winter months, because of this disability, although she states that she always furnished a doctor's certificate to verify the fact that there were medi- cal reasons for her absences. She also missed work from time to time to attend hearings of the New York Welfare Department involving a dispute over welfare payments. Unlike the case of Mrs. Amaya, there is evidence from Mrs. Perez' own testimony that she repeatedly missed work while in the employ of Phelps-Dodge. Even though the ex- cuses might be bona fide, the fact that she frequently did not appear on the job when expected constitutes a basis on which Lentini could legitimately say that she was guilty of absenteeism. Since his reason for refusing to hire Mrs. Perez is supported factually, I conclude that there has been no discrimination against Mrs. Perez based upon union consid- erations and that the complaint should be dismissed as to her. h. Respondent offered employment to Carmen Garcia, John Luscavage, and Olga Vega. Luscavage and Mrs. Gar- cia are now working. Mrs. Vega declined the offer because she could not find a babysitter to care for her child. The General Counsel contends that a discrimination based upon union considerations took place in respect to these employ- ment offers because Respondent was dilatory, and because the delays were prompted by union considerations. By extending an offer of employment to each of these persons, Respondent is necessarily saying that each of them is a suitable employee and that jobs were available at the time of the offer. The question remains whether jobs were 56 SAVOY BRASS MANUFACTURING COMPANY also available before the time of the offer. In determining whether Respondent was footdragging in making offers to employees who were active on the Union's picket line, the following employment picture (which includes persons hired and later terminated as well as those hired and still on the job) is relevant: Month Hired 9/77 1 10/77 16 11/77 7 12/77 14 1/78 8 2/78 4 3/78 5 4/78 5 Mr. Luscavage was offered employment on or about March 20. Mrs. Garcia was offered employment on or about April 4. Mrs. Vega was offered employment sometime in May. Respondent offered as its reason for refusing to hire Phelps-Dodge employees en masse and for going to the gen- eral job market, in the face of applications from experi- enced persons which it had in hand after December 2, a desire to upgrade the quality of the work force in compari- son with the Phelps-Dodge employee complement, to hire only what Lentini called the "cream of the crop." By all reports, Mrs. Garcia was the cream of the crop. She was a dynamic supervisor for Phelps-Dodge and was highly re- garded. Lentini states that he was reluctant to offer her immediate employment at a time when he was trying to fashion a work force for a group made up largely of inexpe- rienced people because he was afraid that she would not take a cut in pay from the supervisor's wage she had been earning in order to work at the rate that was being paid for the jobs which were then available. Ultimately, this is just what Mrs. Garcia did. Despite her presence at the plant and her known avail- ability for work, Lentini did not offer Mrs. Garcia the op- tion she ultimately accepted until 4 months after she noti- fied him of her desire to go to work. In the face of employee difficulties in December and thereafter, which arose be- cause of inexperienced help and the employment of mem- bers of The Way who were, in many instances admittedly unsuitable, this excuse in regard to Mrs. Garcia seems in- credible. As it is unworthy of belief, and as no other plausi- ble explanation was advanced to explain the delay in hiring an outstanding employee at a time when large numbers of marginal applicants were being placed on the payroll, I can only conclude that Respondent was delaying her employ- ment because of her activities on the picket line. Accord- ingly, I conclude with respect to Mrs. Garcia, that Respon- dent violated Section 8(a)(l) and (3) of the Act. John Luscavage had worked at the plant since about 1942 and was able to perform a wide range of duties. Len- tini's reason for delay in the hiring of Luscavage, while hiring many who lacked any experience or working ability, was that he apparently had typecast Luscavage as a man who could work only on castings and there were not enough castings available until he was offered a job in March. Lentini was well aware that Luscavage could and would perform a variety of other unskilled and semiskilled jobs. There was nothing in his application for employment or in his other statements to Respondent in which he lim- ited his application to the kind of work he was doing when the plant closed in July. As the explanation for the delay in hiring Luscavage is not supported by the record, I can only conclude that Lentini held off hiring him because of his activity on the picket line in October and November. Ac- cordingly, I conclude that Respondent, in the case of John Luscavage, violated Section 8(a)(1) and (3) of the Act. Between the time Olga Vega abandoned the picket line and notified Respondent of her availability for work, and the time Respondent offered her employment, at least 36 other persons, some of them without any prior experience, had been hired to fill Respondent's expanding work force. No excuse whatsoever is proffered by Respondent for the delay of more than 5 months in making her an offer. Ac- cordingly, I can only conclude that the delay was promoted by Mrs. Vega's activities on the picket line and, as such, constitutes a violation of Section 8(a)(I) and (3) of the Act. i. Lentini stated that he declined to offer a job to Ana Luscavage in March because he had no work available at that time which would be suitable for a person working under her asserted physical limitations. In March, when Lentini phoned to offer her husband a job, Mrs. Luscavage asked him about a job for herself and was informed that when one became available that she could fill, she could have it. Lentini outlined on the record his belief that Mrs. Luscavage had arthritis in her hands which limited her to certain work in the assembly section such as wrapping han- dles or bagging nuts and bolts. He had no light work of that variety in March, and no such position had opened up as of the time of the hearing. Mrs. Luscavage admitted in her testimony that with Phelps-Dodge, she had lost a considerable amount of time because of a back ailment. During cold weather, her back ached. When she complained about it, Phelps-Dodge trans- ferred her to the assembly section because the area was not as cold. She also admitted having a slight problem with arthritis in her hands and corroborates Lentini's testimony to the extent that Lentini told her that at some future time he might be able to offer her a job in which she could it down, but that he had nothing available at the time Mrs Luscavage's own testimony confirms Respondent's contc, tion that she was able to perform only limited functions at the plant and was available only for a few types of jobs. There is no evidence to contradict Lentini's assertion that a job tailored to Mrs. Luscavage's physical limitations was not currently available. Accordingly, I conclude that there is record support for Respondent's reason for not hiring Mrs. Luscavage and that, as to her, the complaint should be dismissed. Upon the foregoing findings of fact, and upon the nile record herein considered as a whole, I make the foliowing: CONCLUSIONS OF LAW 1. Respondent Savoy Faucet Company, Inc., doing husi- ness as Savoy Brass Manufacturing Company, is an em- ployer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Metal Production and Novelty Workers Union, Local 28-A, International Brotherhood of Painters and Allicd 57 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Trades, AFL-C'IO, is a labor organization within the mean- ing of the Act. 3. By refusing to hire Gerardo Pinzon and Blanca Ama- ya, and by delaying offers of employment to Carmen Gar- cia, John l.uscavage, and Olga Vega, in order to discourage membership in and support of the Union, Respondent herein violated Section 8(a)( ) and (3) of the Act. 4. The aforesaid unfair labor practices have a close, inti- mate, and substantial effect on interstate commerce, within the meaning of Section 2(6) and (7) of the Act. REMEDY Ilaving found that Respondent has engaged in certain unfair labor practices, I will recommend that it be ordered to cease and desist therefrom and to take certain affirmative actions designed to effectuate the purposes and policies of the Act. Because the unlawful activity found herein in- volves discriminatory refusals to hire individuals, I will rec- ommiend to the Board a so-called broad 8(a)(1) remedy de- signed to suppress any and all violations of Section 8(a)(1) of the Act. The recommended Order will also provide that Respondent be required to offer employment to Gerardo Pinzon and to Blanca Amaya. and to make financial resti- tution to these individuals and to Carmen Garcia, John l.uscavage, and Olga Vega, in the amounts they would re- ceived but fr the discrimination found herein, to be com- puted to accordance with the Woolworth formula5 with in- terest thereon at the adjusted prime rate used by the U.S. Internal Revenue Service for tax payments. Florida Steel ('orporration, 231 NLRB 651 (1977): Isis Plumbing & Heat- ing ('o. 138 NLRB 716 (1962). Backpay should commence to run from December 2, 1977. when these individuals aIbandoned the picket line and requested employment. In the cases of Mrs. Garcia, Mrs. Vega. and Luscavage, it should terminate on the dates they were offered employ- ment. I will also recommend that Respondent be required to post a notice advising its employees of their rights and of Ihe Remedy in this case. I plin the foregoini findings of fact, conclusions of law. ,.i ' . " !hle CetiTe ccOrd !erein io:sideted as a whole, "T i i3]t;I to; Secti n Il)( (. o) tt' Act. I make the 1fllow- : 'iCk])1i IICTIL'Id officers, agents, supervisors, successors, and assigns, shall: I. Cease and desist from: (a) Discouraging membership in Metal Production and Novelty Workers Union, Local 28-A, International Broth- erhood of Painters and Allied Trades, AFL-CIO, or any other labor organization, by refusing to hire job applicants or by delaying offers of employment to job applicants, or otherwise discriminating against employees in regard to their hire or tenure of employment or any term or condition of employment. (b) By any means or in any manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative actions designed to ef- fectuate the purposes and policies of the Act: (a) Offer employment to Gerardo Pinzon and to Blanca Amaya. (b) Make whole Gerardo Pinzon, Blanca Amaya, John Luscavage, Carmen Garcia, and Olga Vega for any loss of pay suffered by them by reason of the discrimination prac- ticed against them, in the manner described above in the section entitled "Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll and other records necessary to analyze the amounts of pay due under the terms of this Order. (d) Post at its Long Island City, New York, plant copies of the attached notice, marked "Appendix,"7 in English and in Spanish. Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by a representative of Respondent, shall be posted immedi- ately upon receipt thereof, and shall be maintained by Re- spondent for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to in- sure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 29, in writ- ing. within 20 days from the date of this Order, what steps it has taken to comply herewith. Insolar as the complaint alleges violations of the Act which have not been found herein, the complaint is hereby dismissed. OR DE R I he Respondent, Savoy Faucet Company, Inc., doing oIliness as Savoy Brass Manufacturing Company, and its i 4 i-,orh ('osarin . 90 N I RB 289 (1950). ' .c r II, eceptions are filed ai provsded by Sec. 102.46 of the RI' ,, R.. Ji.s of he Ntionall l.ah. Relations Board. the findings. ;i,: ! li . In ran, t-r: ldiedd Order herein shail. as provided in Sec. 102.48 i Rt, .iidj Reullo.s:tois. ihe aidjpied h the Board and become its I, ,l ss irlihrr:lll. s.ll lidjr. and all hbeclon.ns thereto shall be deemed ,;.c:I t ,I] LIt Iurpos.s 7 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 I.abor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 58