Javco Plastics Industries, Inc.

2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Javco Plastics Industries, Inc. and Textile Workers Union of America, AFL-CIO. Case 3-CA-4593 July 6, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On March 15, 1972, Trial Examiner Sydney S. Asher issued the attached Decision in this proceed- ing. Thereafter, the Charging Party filed exceptions to the Trial Examiner's Decision and a supporting brief, and Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions, and to adopt his recommended Order, as herein modified. 1. We find, in agreement with the Trial Examiner, that the Respondent violated Section 8(a)(3) and (1) by discriminatorily failing and refusing to rehire former employees Daniela Kowalczyk and Carmela Vullo. 2. Contrary to the Trial Examiner, we find that Respondent violated Section 8(a)(3) by failing to rehire former employee Pinizzotto on or after her application for rehire on November 29, 1971. The complaint alleges that Pinizzotto was denied reem- ployment because, like Kowalczyk and Vullo, she had signed a union card. However, in dismissing the allegation as to her, the Trial Examiner found that there was no evidence that a vacancy was available after Pinizzotto's application for rehire. For this reason, he concluded that a prima facie case of discrimination had not been established. We do not agree. The record shows that on May 4, 1971, employee Daniela Kowalczyk signed a card accepting member- ship in the Union. Between May 11 and 14, six employees, including Kowalczyk, Carmela Vullo, and Angeline Pinizzotto, were laid off for lack of work. On May 17, Vullo and Pinizzotto signed union cards. David Geer, Respondent's former plant manager, on May 17, told Respondent President James Cox that a union representative had visited the home of an assistant foreman. Cox replied that he expected this and that he would take care of it. On May 19, Cox sent termination letters to five of the six i There is no allegation that these terminations or the earlier layoffs were unlawful. 2 On December 15, Respondent sent a letter to Pinizzotto in reply to her laid-off employees, including Kowalczyk, Vullo, and Pinizzotto.1 Thereafter, Geer, early in July, advised Kowalczyk that he needed two employees on the night shift and told Kowalczyk he had "talked to Mr. Cox about you, Carmela [Vullo] and Angie [Pinizzotto]." When Kowalczyk asked what Cox had said, Geer told her that Cox did not want to rehire any of the three employees because they had signed cards for the Union. On June 25, Geer telephoned Vullo and told her that he needed experienced workers on the night shift and inquired whether she wanted to return to work. He told her that he would have to talk to Cox and call her back. On either the same or the following day, Geer asked Cox if he had any objection to rehiring Vullo. Cox replied that he had terminated Vullo and that he did not want to rehire any of the other employees he had terminated, stating, "You know why." Several days later, Geer telephoned Vullo and informed her that Cox did not want to rehire her, Kowalczyk, or Pinizzotto because they had signed union cards. As in the case of Kowalczyk and Vullo, the foregoing establishes that Respondent harbored strong animus against Pinizzotto, because of her union activities, and had declared its intention not to rehire her for that reason. Although Respondent argues that, in the past, Pinizzotto's work record was less than satisfactory, we agree with the Trial Examiner, for the reasons expressed with respect to Kowalczyk and Vullo, that Respondent's assertion was a pretext and furnished no legitimate grounds for denying employment to her. On the other hand, contrary to the Trial Examiner, we are satisfied that the record amply demonstrates that work was available in the period immediately after Pinizzotto's application. Thus, as found by the Trial Examiner, in December 1971, the month following Pinizzotto's request for reemployment, Respondent utilized manpower personnel on a temporary basis and in January 1972 hired two college students to perform duties of the same type Pinizzotto had performed prior to her layoff. Res- pondent, though having implicitly offered Pinizzotto a preference in employment,2 chose not to offer work to this experienced employee, but instead utilized other labor sources. In our opinion, neither Respon- dent's election to utilize a commercial manpower agency and parttime employees, nor the fact that Pinizzotto, if hired, would not have enjoyed continu- ous employment in the indefinite future, can alter the fact that Respondent was "in need of help" after Pinizzotto had clearly expressed her availability for application which stated, inter alia, "In view of your past employment with this company, we will try to give you some priority over other applicants when we are next in need of help." 198 NLRB No. 12 JAVCO PLASTICS INDUSTRIES 3 work. In our opinion, Respondent's failure to offer such employment was an implementation of its declared intention to deny employment to card signers and, as such, violated Section 8(a)(3) and (1) of the Act. THE REMEDY Having found that Respondent unlawfully failed and refused to rehire Angeline Pinizzotto on and after November 29, 1971, we shall order that the violation be redressed as set forth in the section entitled "The Remedy" of the Trial Examiner's Decision. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner, as modified below, and hereby orders that the Respondent, Javco Plastics Industries, Inc., Lackawanna, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommend- ed Order, as so modified: 1. Substitute the following for paragraph 2(a): "(a) Offer immediate employment to Daniela Kowalczyk and Carmela Vullo in the positions which were available to them on June 30, 1971, and Angeline Pinizzotto a position which was available on or after November 29, 1971, or, if those jobs no longer exist, to substantially equivalent positions and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them, in the manner set forth above in the section entitled `The Remedy.' " 2. Substitute the attached notice for the Trial Examiner's notice. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the U .S. Government WE WILL NOT discourage membership in Textile Workers Union of America, AFL-CIO, or any other union, by discriminatorily refusing to rehire former employees or to hire other job applicants, or by discriminating in any other manner against our employees in regard to their tenure of employment or any other working conditions. WE WILL NOT in any manner interfere with, restrain, or coerce our employees or job appli- cants in the exercise of their right to self-organiza- tion, to form, join, or assist any union, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from such activities, except to the extent that such rights may be affected by an agreement requiring union membership as a condition of employment, as authorized in Section 8(a)(3) of the National Labor Relations Act as amended. WE WILL offer Daniela Kowalczyk and Carme- la Vullo immediate employment in the jobs which were available to them on June 29, 1971, and Angeline Pinizzotto a position which was availa- ble on or after November 27, 1971, or, if those jobs no longer exist, in substantially equivalent jobs, and pay them any wages they might have lost since that date with 6-percent interest, because of our failure to rehire them. Our employees are free to become or remain, or refrain from becoming or remaining, members of any union, except to the extent that such right may be affected by an agreement requiring union member- ship as a condition of employment, as authorized by the National Labor Relations Act. JAVCO PLASTICS INDUSTRIES, INC. (Employer) Dated By (Representative) (Title) We will notify immediately the above-named indi- viduals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Federal Building, Ninth Floor, 111 West Huron Street, Buffalo, New York 14202, Telephone 716-842-3100. 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TRIAL EXAMINER'S DECISION SYDNEY S. ASHER, Trial Examiner: On September 17, 1971, Textile Workers Union of America, AFL-CIO' herein called the Union, filed charges against Javco Plastics Industries, Inc., Lackawanna, New York, herein called the Respondent. Based thereon, the General Counsel of the National Labor Relations Board on November 15, 1971, issued a complaint alleging that on or about May 10, 1971, the Respondent laid off its employees Daniela Kowalczyk and Carmela Vullo and that since on or about June 29, 1971, the Respondent has failed and refused to reemploy either of them because they joined and/or assisted the Union or engaged in other concerted activities. It is alleged that this refusal to reemploy violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.), herein called the Act. The Respondent filed an answer admitting that it had laid off Vullo and Kowalczyk on or about May 10, 1971, but denying the other allegations of the complaint. Affirmatively, the Respondent alleges in its answer that Vullo and Kowalczyk have not been reemployed because they have not applied for reemployment and that, in accord with the Respondent's standard hiring practices, previously terminated employees are not rehired unless they apply for reemployment. On January 10, 1972, the General Counsel issued an amendment to the complaint adding allegations that on or about May 10, 1971, the Respondent laid off Angeline Pinizzotto and that since on or about November 29, 1971, it has failed and refused to reemploy her because she joined and/or assisted the Union or engaged in other concerted activities. Upon due notice, a hearing was held before me on January 13 and 14, 1972, at Buffalo, New York. All parties were represented and participated fully in the hearing. At the hearing, the Respondent answered the amended complaint orally on the record, admitting that it had laid off Pinizzotto on or about May 10, 1971, but denying the remaining allegations of the amended complaint. After the close of the hearing, the General Counsel and the Respondent filed briefs, which have been carefully consid- ered. Upon the entire record,2 and from my observation of the witnesses, I make the following: FINDINGS OF FACTS A. Preliminary Matters The complaint alleges, the answer admits, and it is found that the Respondent is, and at all material times has been an employer engaged in commerce as defined in the Act, and its operations meet the Board's jurisdictional stand- ards 3 and that the Union is, and at all material times has been a labor organization within the meaning of the Act. 1 The name of the Union appears as amended at the hearing. 2 At the close of the hearing, the Respondent moved to strike G.C. Exh. 12. Ruling on this motion was reserved . G.C. Exh. 12 is not an original, and the original is no longer in existence . I am not satisfied that General Counsel's Exhibit 12 has been sufficiently identified as identical with the missing original. Accordingly, the motion was granted, General Counsel's Exhibit 12 is rejected, and the official reporter's stamp thereon is corrected to reflect this ruling. B. The Setting In January 1970 the Union filed with the Board a petition in which it sought to represent the production and maintenance employees and truckdrivers employed by the Respondent at its Lackawanna plant (Case 3-RC-4857). A consent election ensued, in which the Union was defeated, The Board issued a certification of results of election on April 10, 1970. So far as the record shows, the Union made no further attempts to organize the Respondent's plant at Lackawanna for at least a year. James V. Cox, president of the Respondent, at one time had been president of Cox Plastics Company, which at that time had been located in Lackawanna. At times here material, the Respondent employed approximately 20 production and maintenance employees at its Lackawanna plant. They worked in three shifts: the day shift, 7 a.m. to 3 p.m.; the swing shift, 3 to 11 p.m.; and the night shift, 11 p.m. to 7 a.m. C. The Layoffs and Discharges 1. Events concerning employees On May 4, 1971, Daniela , Kowalczyk, an injection molding machine operator in the Respondent's employ, signed a card accepting membership in the Union. Between May 11 and 144 six injection molding machine operators, including Kowalczyk, Carmela Vullo , and Angeline Piniz- zotto, were temporarily laid off for lack of work. On May 17 Vullo and Pinizzotto signed cards accepting member- ship in the Union. On May 19, the Respondent sent letters to five of the laid-off employees, including Kowalczyk, Vullo, and Pinizzotto, which read in pertinent part: The continuing economic conditions make us unable to determine when and if we can restore our work force to the level it was at before you were laid off. In view of this fact, we feel we should pay your accumulated vacation pay at this time and consider your employment with Javco terminated. Enclosed is a check for the amount of vacation time due you at the time of your lay-off. Thank you for the service you have rendered, and we wish you success in any relocation you make. The letters were accompanied by checks covering vacation pay. The General Counsel makes no contention that any discrimination was involved in the layoffs or the subse- quent discharges of Kowalczyk, Vullo, or Pinizzotto. 2. Events concerning management On or about May 17 David Geer, then manager of the Respondent's Lackawanna plant, learned that a union 3 The Respondent is, and at all material times has been , a New York corporation with its principal office and place of business in Lackawanna, New York. It manufactures, sells, and distributes plastic components. During the year prior to November 15, 1971, the Respondent received at its Lackawanna, New York plant, directly from sources outside the State of New York, goods valued at more than $50,000. ° All dates hereafter refer to the year 1971 unless otherwise noted. JAVCO PLASTICS INDUSTRIES representative had visited the home of Joseph Scully, an assistant foreman.5 Geer informed Cox of this on the same day. Cox stated that he expected this and that he could take care of it. He asked if Geer had seen anybody from the Union around the plant, Geer answered, "No." Cox then asked whether Geer had heard of any other union activity; again Geer replied in the negative .6 Late in May, dust before Memorial Day weekend, Cox and Geer had a rather serious disagreement. A "very heated exchange" ensued. On June 1 Cox suggested that Geer should start looking for employment elsewhere. Thereafter, relations between the two continued to be strained. On July 6 Cox notified Geer that Geer was discharged, effective July 9. Geer's authority as manager ended July 9, but he was carried on the payroll through July 15. At the time of the hearing herein, the personal relationship between Cox and Geer did not appear to have improved. The Respondent's business increased in June. On June 15 the Respondent hired Rosalie Van De Walker as an injection molding machine operator on the night shift. She had not worked for the Respondent previously. A few weeks later the Respondent hired Lorraine Zak in a similar capacity, also on the night shift. Between July 12 and October 11 the Respondent hired 12 new employees and recalled one laid-off employee (Helen Miller). D. The Failures To Rehire 1. Facts a. ' Daniela Kowalczyk Before working for the Respondent, Damela Kowalczyk had been an employee of Cox Plastics Company for 7 years. She entered the Respondent's employ in July 1970 as an injection molding machine operator on the day shift. After she signed a union card on May 4 and was laid off on May 11, she was discharged by letter dated May 19, quoted above. Soon after receiving the letter dated May 19, Kowalczyk telephoned to Geer and asked him: "Am I fired?" Geer replied: "I don't know.... I'll find out and call you back." When Kowalczyk asked: "Are you sure that I'm coming back to the company?" Geer replied: "Yes." Kowalczyk called Geer "at least once a week" thereafter and asked when the layoff would be over. Each time Geer replied that he did not know. Early in July Kowalczyk met Geer on the street near the Respondent's plant.? Geer advised Kowalczyk that he needed two employees for the night shift. He added that he S Geer testified that Scully gave him a business card left at Scully's home by an agent of the Union, which Geer later handed to Cox Scully testified that he showed the business card to Geer, but denied that he gave it to Geer I deem it unnecessary to resolve this conflict. 6 The findings regarding this Geer-Cox conversation are based on Geer's testimony Cox denied that he had any conversation with Geer regarding the Union While I am aware that Geer may have harbored animus toward Cox, I am nevertheless convinced by Geer's demeanor that his testimony was generally truthful On the other hand, Cox did not impress me as a candid witness r Kowalczyk testified that this was prearranged in a telephone call she made to Geer. Geer testified that the meeting was accidental. I deem it unnecessary to resolve this conflict 5 had "talked to Mr. Cox about you, Carmela [Vullo] and Angie [Pinizzotto ]. " When Kowalczyk asked what Cox had said, Geer explained that Cox did not want to rehire any of the three because they had signed cards for the Union. Geer added that he had been discharged by Cox and advised Kowalczyk to talk to Cox directly about reemploy- ment.8 However, Kowalczyk did nothing more until September. Shortly before or shortly after the instant charges were filed, Kowalczyk telephoned to the Respon- dent's plant and spoke to Bill Cox, James V. Cox's son. As there is insufficient evidence on the record to demonstrate that Bill Cox was then a supervisor or agent of the Respondent, the substance of the telephone conversation is not binding on the Respondent, and I therefore decline to make findings with regard thereto. b. Carmela Vullo Prior to working for the Respondent, Carmela Vullo had been employed for 3 years by Cox Plastics. She began working for the Respondent in June 1970. She was originally hired to operate an injection molding machine on the night shift but instead was assigned to the swing shift. In August or September 1970 Vullo was transferred to the day shift. As related above, she was laid off on May 11, signed a union card on May 17, and was sent a discharge letter about May 19. On or about June 25 Geer telephoned Vullo who was then at home. He told Vullo that he needed workers on the night shift and asked if she would be interested in coming back on that shift. She replied that she wanted to come back to work. Geer said he needed her experience on the night shift and would talk to Cox about it and call her back .9 Either that day or the next day Geer was eating lunch with Tim Sheehey (then an employee of the Respondent) in the Hub Restaurant when Cox came in and joined them at their table. Geer stated that he needed people for the night shift and asked: "Will you have any objection to my bringing back Carmela Vullo on the third shift?" Cox replied that he had terminated her and that he did not want back any of the other people that he had terminated, adding: "You know why." 10 Several days later, about June 30, Geer telephoned Vullo and informed her that Cox did not want him (Geer) to rehire her, or Kowalczyk or Pinizzotto, because they had signed cards for the Union. Vullo replied: "Tell Mr. Cox thanks a lot." About July 7 Vullo telephoned to Cox and asked whether she was going to be called back to work. Cox's reply was noncommital.11 Vullo has not heard from the Respondent since then. 8 The findings regarding this Kowalczyk-Geer conversation is based on a synthesis of the testimony of both participants 9 The findings regarding this conversation and the later Geer-Vullo telephone conversation on June 30 are based on a synthesis of the testimony of Vullo and Geer, whose stones were substantially mutually corroborative. is The findings with respect to this conversation are based on Geer's credited testimony. Cox recalled the luncheon but had no recollection of any conversation regarding Vullo Neither side called Sheehey as a witness. ii According to Vullo, Cox asked if Vullo would work the night shift; she replied that she would, Cox then stated he would call her probably in a week to 10 days Slisz, who listened in on an extension telephone, corroborated Vullo's version Cox (who placed the conversation in mid- (Continued) 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD c. Angeline Pinizzotto Angeline Pinizzotto began working for the Respondent in October 1969 as an injection molding machine operator on the night shift. She received a short layoff but was recalled on the day shift, probably in January 1970. About a month later she was assigned to the night shift , but later at her request was transferred back to the day shift. As described above, she was again laid off on May 11, 1971. She protested this layoff to Geer, without tangible result. As previously noted, she signed a union card on May 17 and was discharged by letter dated May 19. Pinizzotto did not make any attempt to return to work until November 29,12 when she sent the following letter to Cox: On May 11, 1971, I was laid off. At that time work was very slow. Since then it got busy. I understand that you are working six days a week and that you have hired a lot of new help, but you didn't call me back. I am ready, willing, and able to return back to work. I expect to hear from you. She sent copies to Bill Dalton, then manager of the Lackawanna plant, and to Dennis Hinman, who had been her foreman. Cox sent Pinizzotto the following reply on December 15: Thank you for letting us know by your registered letter that you are anxious to come back to work with us. From now until sometime early in January we will not be doing any new hiring since this is normally a slow time for the company. During the summer and fall we had many new applications for employment and the hiring we did this fall came from applications we had on file for a long time. In view of your past employment with this company, we will try to give you some priority over other applicants when we are next in need of help. So far as the record shows, there has been no further communication between Pinizzotto and the Respondent. 2. Contentions of the parties The General Counsel does not contend that the layoffs and discharges of Kowalczyk, Vullo, and Pinizzotto were discriminatorily motivated. He does maintain, however, that Kowalczyk and Vullo have been denied reemployment since about June 30 and that Pinizzotto has been denied reemployment since about November 29, because of their known or expected adherence to the Union. In support of these contentions, the General Counsel points, among other things, to the hiring of new employees as early as June 15, and to the statement on or about June 25 that he needed workers on the night shift. Shortly after the filing of the charges the Respondent's attorney, in a letter to an agent of the Board, took the position that "Since the termination of [Kowalczyk, Vullo, and PinizzottoI none have applied for reemployment with Javco at such time as Javco has had openings available." In its answer to the original complaint the Respondent alleges as an affirmative defense that Kowalczyk and Vullo "have not applied to a duly authorized supervisor of Respondent for reemployment and that in accordance with Respondent's standard hiring practices previously termi- nated employees are not rehired unless they made due application for such reemployment." At the hearing and in its brief the Respondent contends further that it "had no knowledge of the employees' Union membership or of any activities on behalf of the Union" until the filing of the charges on September 17. Finally, the Respondent argues that "these employees were not considered for re-employ- ment due to their overall poor prior employment records," particularly their records of absenteeism. 3. The General Counsel's case The discharges of Kowalczyk, Vullo, and Pinizzotto in May were concededly nondiscriminatory. Therefore they did not thereafter stand in the position of laid-off employees, normally recalled from layoff in preference to new hires. On the contrary, after their discharges they became former employees, who normally must affirmative- ly seek rehire, and who usually compete with other job applicants. They were, of course, entitled to be considered for employment without regard to their union sympathies, membership, or sentiment. It follows that, to prove a prima facie case, the General Counsel must show that they applied for work, that there was work available while their applications were pending, that the Respondent at that time knew of or suspected their interest in the Union, and that their applications were turned down in substantial part because of this knowledge or suspicion. a. Kowalczyk and Vullo The record shows that following her discharge Kowalc- zyk made repeated telephone calls to Geer inquiring when her "layoff" would be over. It further shows that when Geer telephoned to Vullo on or about June 25 Vullo indicated her desire to come back to work. Thus, by June 25 Kowalczyk and Vullo had both verbally applied for rehire. The record further reveals that on that date Geer had need of two machine operators on the night shift -work which Kowalczyk and Vullo were willing and qualified to perform. Moreover, on July 7 Vullo telephoned to Cox and asked whether she was going to be called back to work. Less than a week later, the Respondent hired Rosemary Owczarczak and Daniel Prezyna as new employees. Accordingly, the affirmative defense in the answer to the original complaint (that these two women "had not applied to a duly authorized supervisor of Respondent for re-employment") is lacking in merit. June) testified that, in answer to Vullo's inquiry, he stated that he could not Pinizzotto's name was omitted from the original complaint, issued on tell her when she might be reemployed. November 15. On January 10, 1972, the General Counsel revoked his prior 12 The charges, filed on September 17, contained Pinizzotto's name. On approval of the withdrawal of Pinizzotto's name and issued an amendment November 12, the Union requested the withdrawal of Pinizzotto's name to complaint which put the Respondent's alleged refusal to rehire Pinizzotto from the charges and the Regional Director approved. Consequently, on or after November 29 into issue. JAVCO PLASTICS INDUSTRIES We turn next to the question of the Respondent's knowledge or suspicion of their support of the Union. Both women had signed union cards before their discharges. On or about June 30, in a telephone conversation , Geer told Vullo that Cox would not permit her rehire , or that of Kowalczyk or Pinizzotto, because they had signed cards for the Umon. In the same vein, Geer told Kowalczyk a few days later in a face -to-face conversation that Cox did not want any of the three rehired because they had signed union cards . These admissions against the Respondent's interest, voiced by its manager, demonstrate that, from at least June 30 on, the Respondent knew of or suspected that Kowalczyk and Vullo were adherents of the Union.13 The same admissions constitute prima facie proof that, in failing to rehire Kowalczyk and Vullo on and after June 30, the Respondent was motivated in substantial part by their known or suspected support of the Union. b. Pinizzotto Pinizzotto applied for rehire in her letter of November 29. Cox's answer promised "to give her some priority over other applicants when we are next in need of help." At the time he wrote that, Cox had reason to know or suspect that Pinizzotto had been an adherent of the Umon, for a short while before (on September 17) the Union had filed the instant charges containing Pinizzotto's name as an alleged discnmmatee. The amended complaint alleges a discnnunatory refusal to rehire Pinizzotto on and after November 29. The weakness of this allegation stems from the General Counsel's failure to demonstrate that there were any appropriate vacancies at the Respondent's Lackawanna plant on or after that date. All that has been shown is that beginning in December the Respondent hired "Manpow- er" help on the night shift on a temporary basis,14 and that in the same month and in January 1972 the Respondent hired two college students as temporary part-time machine operators. There is no evidence that on or after November 29 any hires were made on anything other than a temporary basis. On the record before me, I conclude that the General Counsel has failed to establish that there was an appropriate vacancy available for Pinizzotto to fill on or after her application for rehire. Accordingly, a prima facie case of discrimination against her has not been made out. 4. The Respondent's defense The Respondent's original defense regarding Kowalczyk and Vullo-that they failed to apply for rehire-has been shown to have been lacking in merit. Likewise, the defense that the Respondent did not know or suspect that these two women were adherents of the Union has been demonstrated to be contrary to the credited testimony. We turn then to the last defense; namely, that these women 13 The Respondent in its brief states that these three women "only told each other that they had signed membership cards " Vullo testified, however, that she told some of the women who worked on her shift. And Pinizzotto testified that she told her husband 14 William R Dalton , manager of the Respondent's Lackawanna plant since July 25, 1971, testified on this subject without contradiction as follows. 7 were not rehired because they had not in the past been satisfactory employees. Cox explained his reasons for considering these women unsatisfactory workers as fol- lows: (By Mr. Hamlett) . . . Is Mrs. Kowalczyk's attend- ance record for the period of her employment worse than any other production employee during that period? THE WiTNEss: Far worse than any other production employee, the single worst employment record or attendance record we have ever had. Q. . . . Mrs. Vullo and Mrs. Pinizzotto, the same question in relation to their attendance record? A. Mrs. Pinizzotto's record is not as bad as Mrs. Kowalczyk's, but it is much worse than any other employee in this period, except Mrs. Kowalczyk. Mrs. Vullo's record for attendance is the best of the three. And it exceeded in the number of absences to the best of my knowledge, possibly anybody else but the other two. Certainly, it was as bad as any other employees. I can't say it was worse because I haven't done a full analysis of all the employees. But all three were bad. Mrs. Kowalczyk was exceedingly bad. Mrs. Pinizzotto was quite bad. And Mrs. Vullo's record was worse than what normally would be acceptable. Q. I see. Other than attendance, had it come to your attention that the three employees in question had any other . . . feature or attribute that made them objectionable employees for Javco? A. At one time or another they had each limited themselves to being available for first shift work only. They had been on other shifts, had requested first shift. And had indicated that first shift was all that they were willing to accept. TRIAL ExAMINER: That is Kowalczyk and Pinizzot- to? THE WITNESS: All three. . . . It is my recollection that I was informed that none of the three were willing to work second [swing] or third [night] shift. In support of its contention that the three women in question had the worst attendance records of any employ- ees, the Respondent introduced into evidence the time- cards of all employees from mid-October 1970 to mid-May 1971. These show: 1. Kowalczyk lost a total of 30 days; Vullo lost a total of 16-1/2 days; and Pinizzotto lost a total of 20-1/2 days. 2. A number of employees (notably Janet Hammer- smith, Ruby Risbon, and Gloria Skowrawska) had worse attendance records, but they had left the Respondent's employ by mid-May 1971. 3. A large number of employees had better attendance records. 4. Filicia Borowczyk had absences totaling 18-1/2 Q . . Could you tell us why you are using Manpower personnel? A. Well, I have two reasons for using them . Number I would be to replace an existing person who was temporarily absent due to illness The second reason would be due to an increase in production in the requirements for a specific period of time. Q. I see Now, when you hire Manpower people, is it your intention to make them permanent personnel? A No. If I wanted a permanent personnel , I'd hire someone 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD days, and Joan Buehler's total time lost was 17-1/2 days-both worse than Vullo's record. So far as the record shows, Borowczyk and Buehler are still in the Respon- dent's employ. 5. Conclusions Cox had known Kowalczyk and observed her work performance at Cox Plastics for 7 years and at the Respondent's plant for an additional year. Likewise, Vullo had worked for Cox Plastics for 3 years and for the Respondent for an additional year. During all that time, so far as the record shows, their work was never criticized. Indeed, Geer apparently thought so highly of Vullo that on June 25-after her discharge-he assumed the initiative and sought her to inquire if she would come back. This hardly bespeaks past dissatisfaction with her work. Cox's testimony that the three women had "limited themselves to being available for first [day] shift work only," if true, proves little. If indeed they had so stated in the past, Geer did not consider their positions as rigid or irrevocable, for on June 25 he asked Vullo to come back on the night shift. And her position turned out to be flexible, for she agreed to work on that shift. Regarding absenteeism, the timecards show that at least two other employees still employed by the Respondent had worse records of absenteeism than did Vullo. Moreover, none of the three women was reprimanded about absence, although at least one other employee (Borowczyk) was. Additionally, the Respondent's management made no attempt to study or analyze the absenteeism records of these three women when they applied for rehire; the first such analysis occurred shortly before the hearing herein. Again, neither Geer nor any of the three women was told that the reason for their not being rehired was because their past work had not been satisfactory. Indeed, Cox's letter to Pinizzotto on December 15 implies the opposite, for it suggests that she would be given a preference over other applicants. Finally, the Respondent at first put forth a different defense-failure to apply for rehire. It was not until the hearing was underway that the Respondent first raised the defense of prior unsatisfactory service. This would therefore appear to be an afterthought. In view of the Respondent's last minute switch in defense, the long and satisfactory past history of employment of Kowalczyk and Vullo, the lack of previous reprimands, the proof of compliments received,15 and all the other circumstances described above, it is concluded that the defense of prior poor performance by Kowalczyk and Vullo is a mere pretext to conceal the true reason they were refused rehire when appropriate positions were open; namely, their known or suspected support of the Union. Such conduct violates Section 8(a)(1) and (3) of the Act. Upon the above findings of fact, and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. Javco Plastics Industries, Inc., is and at all material times has been, an employer within the meaning of Section 2(2) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Textile Workers Union of America , AFL-CIO, is, and at all material times has been, a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminatorily failing and refusing to rehire Daniela Kowalczyk and Carmela Vullo since on or about June 30, 1971, thereby discouraging membership in the above-named labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By the above-described conduct, thereby interfering with, restraining, and coercing its employees in the exercise of rights guaranteed by Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The above-described unfair labor practices tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce and constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 6. The General Counsel has failed to prove by a preponderance of the evidence that the Respondent has discriminated against Angeline Pinizzotto within the meaning of Section 8(a)(1) or (3) of the Act. THE REMEDY As the unfair labor practices found to have been committed by the Respondent are persuasively related to other unfair labor practices proscribed by the Act, the danger of their commission in the future may reasonably be anticipated from the Respondent's past conduct.16 It will therefore be recommended that the Respondent cease and desist, not only from the unfair labor practices found, but also from in any manner infringing upon the rights of its employees and applicants for employment guaranteed by Section 7 of the Act. It has been found that the Respondent discriminatorily refused to rehire Daniela Kowalczyk and Carmela Vullo since on or about June 30, 1971. It will therefore be recommended that the Respondent immediately offer them employment in the jobs which were available to them on that date or, if those jobs no longer exist, in substantially equivalent positions, and make them whole for any loss of pay each may have suffered by reason of the discrimina- tion against her by paying her the amount she would normally have earned from June 30, 1971, the date of the discrimination against her, to the date of the Respondent's offer of rehire, less her net earnings during this period. The backpay provided for herein shall be computed on a quarterly basis in the manner established in F. W. Wool- worth Company, 90 NLRB 289, including 6-percent interest 15 On rebuttal, Vullo testified without contradiction that her work was is It is well established that a discriminatory discharge of an employee never criticized but that on the contrary, it was priased by Dennis Hinman, because of his union activities goes to the very heart of the Act. A. J. her foreman. Pinizzotto similarly testified on reubttal, without contradic- Krujewski Manufacturing Co., Inc., 180 NLRB 1071 . The discriminatory tion, that her foreman told her that Cox was "very well pleased" with her refusal to rehire a former employee falls in the same category. work. JAVCO PLASTICS INDUSTRIES 9 as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. It will also be recommended that the Respondent preserve and make available to the Board, upon request, all records necessary to compute the amounts of backpay due hereunder, and post appropriate notices. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended.i7 ORDER Javco Plastics Industries, Inc., Lackawanna, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Textile Workers Union of America, AFL-CIO, or any other labor organization, by discriminatorily refusing to rehire former employees or to hire other job applicants, or by discriminating in any other manner against its employees in regard to their tenure of employment, or any other terms or conditions of employ- ment. (b) In any other manner interfering with, restraining, or coercing its employees or applicants for employment in the exercise of the rights guaranteed them in Section 7 of the Act, except to the extent that such rights may be affected by an agreement, as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer immediate employment to Daniela Kowalczyk and Carmela Vullo in the positions which were available to them on June 30, 1971, or, if those jobs no longer exist, to substantially equivalent positions, and make them whole for any loss of earnings they may have suffered by reason 17 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 18 In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words reading "Posted by Order of the of the discrimination against them, in the manner set forth above in the section entitled "The Remedy." (b) Notify immediately any of the above-named employ- ees, if presently serving in the Armed Forces of the United States, of the right to employment, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due under this recommended Order. (d) Post at its plant in Lackawanna, New York, copies of the attached notice marked "Appendix." 18 Copies of such notice, on forms provided by the Regional Director for Region 3, after being signed by an authorized representa- tive of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and shall be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily displayed. The Respondent shall take reasona- ble steps to insure that such notices are not altered, defaced, or covered by any other material. (e) Notify the said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith. is IT IS FURTHER RECOMMENDED that the amended com- plaint herein be dismissed, insofar as it alleges that the Respondent discriminated against Angeline Pinizzotto in violation of Section 8(a)(1) or (3) of the Act. National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 19 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read "Notify the Regional Director, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith "