Erie County Plastics Corp.

564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Erie County Plastics Corporation and United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO-CLC. Case 6-CA-6498 November 26, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On June 29, 1973, Administrative Law Judge John F. Corbley issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. 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 attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order.' Pennsylvania, pursuant to a charge filed by United Rubber, Cork, Linoleum and Plastics Workers of America, AFL-CIO-CLC (sometimes hereinafter referred to as the URW), on January 8, 1973, which was duly served on Respondent the following day, an amended charge filed by URW on March 6, 1973, and a complaint and notice of hearing dated March 30, 1973, issued by the Acting Regional Director for Region 6 of the National Labor Relations Board, which was likewise duly served on Respondent. The complaint alleges that Respondent has violated and continues to violate Section 8(a)(3) and (1) of the Act by failing or refusing to recall or reemploy Mary Lou Bailey and Gertrude Williams since December 5, 1972, because of their activities on behalf of the URW. In its answer, which was also duly filed, Respondent denied the commission of any unfair labor practices.) For reasons, which will appear, I find and conclude that Respondent refused to rehire Mary Lou Bailey and Gertrude Williams in violation of Section 8(a)(3) and (1) of the Act. At the hearing, the General Counsel and the Respondent were represented by counsel. All parties were given full opportunity to examine and cross-examine witnesses, to introduce evidence, and to file briefs. The parties waived oral argument at the conclusion of the hearing and briefs have been filed by the Respondent and the General Counsel. Upon the entire record2 in this case, including the briefs, and from my observation of the witnesses, I make the following: 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 Administrative Law Judge and hereby orders that the Respondent, Erie County Plastics Corporation, Corry, Pennsylvania, its offi- cers, agents, successors, and assigns , shall take the action set forth in said recommended Order. I The Respondent has excepted to certain credibility findings made by the Administrative 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, enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. We do find, however, that certain inadvertent errors in the Decision of the Administrative Law Judge require correction . Thus, under sec. III, A, first sentence of par. 4, change "August 22" to "August 27"; in subsec. D, par. 6, change "Bailing" to "Bailey", in subsec. E, par. 3 and second sentence of par. 9, change "October 11 , 1972" to "October 11, 1971." The Respondent has requested oral argument . This request is hereby denied as the record and the briefs adequately set forth the issues and the positions of the parties. DECISION STATEMENT OF THE CASE JOHN F. CORBLEY, Administrative Law Judge: A hearing was held in this case on May 10 and 11, 1973, at Erie, FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, a Pennsylvania corporation with its sole facilities located in Cony, Pennsylvania, is engaged in the manufacture and nonretail sale of plastic products. During the 12-month period preceding the issuance of the complaint and the notice of hearing, a representative period, Respondent received goods and materials valued in excess of $50,000 for use at its Corry, Pennsylvania, facilities directly from points outside the Commonwealth of Pennsylvania. During the same 12-month period, Respondent sold and shipped goods and materials valued in excess of $50,000 from its Cony, Pennsylvania, facilities directly to points outside the Commonwealth of Pennsylva- nia. Upon the foregoing facts, which Respondent admitted in its answer to the complaint , the complaint alleges, the i At the hearing the complaint was amended to allege, and the answer was amended to admit, that Leroyce Blighstone is a supervisor within the meaning of Sec. 2(11) of the Act 2 The transcript of the proceeding was corrected The corrections were based in part on a postheanng motion by the Respondent and a postheanng motion by the General Counsel, both of which were granted. It is also noted that the Administrative Law Judge's statement to witness Bailey to "watch her step" at 1 5 of p 20 of the transcript is to be taken literally. There were several steps to the witness stand in the courtroom in use on that day of the hearing and I was fearful that the witness might trip. 207 NLRB No. 95 ERIE COUNTY PLASTICS CORPORATION 565 answer further admits, and I find that Respondent is now and has been, at all material times herein , an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO-CLC, is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Sequence of Events Sometime prior to 1968 the Respondent granted recogni- tion to the Erie County Plastics Independent Union, hereinafter sometimes referred to as the Independent. Subsequently Respondent and the Independent have entered into successive collective-bargaining agreements, the current contract having an expiration date of Septem- ber 1, 1974. Since 1968, Respondent's recognition of the Independent has been based on NLRB certifications of it as the exclusive bargaining representative of a unit which includes all of Respondent's production and maintenance employees at its Ene County, Pennsylvania, plants. The Independent was first certified on May 14, 1968, by the Regional Director for Region 6 after an election had been held under his supervision on March 22, 1968. In this 1968 election the. Independent was chosen by a wide majority of the employees in the production and mainte- nance unit over the International Union of Electrical, Radio and Machine Workers, AFL-CIO, which had petitioned for the election. On August 22, 1971, the Independent was again certified by the same Regional Director as the exclusive bargaining representative of the Respondent's production and mainte- nance employees . This certification was based on the Respondent's victory over the URW in an election conducted on August 19, 1971. That election took place on the basis of a petition filed by the URW in Case 6-RC-5858, after URW had conducted an organizational campaign which began about June 1971. Both of the alleged discriminatees herein, Bailey and Williams, were supporters of the URW during that campaign, as will be detailed. The production and maintenance unit for which the Independent was certified in August 1971 is, specifically, as follows: All production and maintenance employees of Ene County Plastics Corporation at its Erie County, Pennsylvania, plants, including plant clerical employ- ees, shipping department employees, inspectors, tool room employees and group leaders; excluding office clerical employees, project engineers and guards, professional employees and supervisors as defined in the Act. The current collective-bargaining agreement between the Respondent and the Independent, effective from October 13, 1971, until September 1, 1974, covers the foregoing bargaining unit in which the Independent was certified as the exclusive bargaining representative in Case 6-RC-5858. Respondent's finishing department and its molding department are included in this unit. Implementation of this collective-bargaining agreement is a responsibility of A.W. "Bud" McAvoy, Respondent's personnel director. The complaint alleges, the answer admits, and I find that McAvoy has been and is now a supervisor and agent of Respondent acting in its behalf, within the meaning of Section 2(11) and (13) of the Act. McAvoy has held this position since November 3, 1970. As will appear, the two alleged discrnminatees, Bailey and Williams, worked in the finishing department during their employment with Respondent. And both at times after their layoff sought to be rehired or recalled into the finishing department or into the molding department. B. Employment History and Union Activities of the Two Alleged Discriminatees, Bailey and Williams Bailey and Williams are sisters. They worked nearby one another when employed by Respondent and resided close by each other at times pertinent hereto. Bailey: Bailey's employment with Respondent began on May 25, 1970, and ended with her layoff on October 11, 1971, along with other employees including her sister, Williams. Bailey was in the finishing department during the entire course of her employment. The relevance , if any, of Bailey's work record to Respondent's subsequent refusal to rehire her will be discussed later in this Decision. Bailey signed a union card for the URW in June 1971 and attended all of URW's organizational meetings, some 10 in number, which were held about once per week at the Corry, Pennsylvania, Motor Inn from June until the Board-conducted election which was held on August 19, 1971, as previously described. These meetings were conducted by James Misock, who also represented the URW at the hearing herein. In addition to attending these URW meetings, Bailey, during the course of a luncheon break at the plant during the summer of 1971, asked employee Fitch to attend union meetings. Bailey also served as an official observer for the URW in the Board-conducted election of August 19, 1971. Williams: Williams worked for Respondent from June 8, 1970, until her layoff on October 11,' 1971. Williams was employed in the Respondent's finishing department during this entire period. Williams work record will likewise be discussed later in this Decision. Williams signed a union card for the URW. Like her sister, she also attended some 10 URW meetings at the Corry Motor Inn over the summer of 1971 . Williams discussed the URW in the plant'with other employees and told them of her support for that Union. She also informed Leroyce Blighstone, the foreman of the finishing depart- ment and an admitted supervisor within the meaning of Section 2(11) of the Act, several days before the election on August 19, 1971, that she was a supporter of the URW. In so informing Blighstone she used the term "Big Union" which I find was the term of reference to the URW which was in use at the time among the employees and, as will appear, was a term also used by Personnel Director McAvoy, according to the credible testimony of Bailey. On 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the day of the election Williams wore a URW union button at the plant. C. Efforts of Bailey and Williams To Obtain Reemployment With Respondent During the Year Succeeding Their Discharge The time frame of 1 year after discharge is significant because of certain provisions of the contract between Respondent and the Independent. This contract requires that laid-off employees be recalled in order of seniority, if qualified for job openings, during the year following their layoff (or during time equivalent to their length of service with Respondent, whichever period is shorter) before any new employees may be hired for such openings . And this contract requirement applied to the layoffs of October 11, 1971 (even though the contract did not go into effect until October 13, 1971). Some 30 other employees of the finishing department were laid off along with Bailey and Williams on October 11, 1971 3 In January 1972 some laid-off employees with seniority higher than that of Bailey and Williams were recalled into the finishing department and other employees were newly hired into the molding department. Hearing that new employees were being taken on in molding, Bailey telephoned McAvoy to see if the Respondent would consider recalling her into molding. Upon ascertaining that Bailey was a laid-off finishing department employee, McAvoy declined to recall Bailey into molding, stating that the Company did not wish to train laid-off employees for molding work and then have to call them back into the finishing department, nor did the Respondent desire to lose good finishing department employees permanently to the molding department .4 In February 1972 Williams also telephoned McAvoy with the same request Bailey made, supra. McAvoy likewise declined to recall Williams into the molding 3 There is no allegation in the complaint that this layoff was an unfair labor practice. Moreover, this event took place at a time well beyond the 6- month statute of limitations period set forth in Sec. 10(b) of the Act 4 Bailey credibly so testified 5 These findings are based on the credible testimony of Williams. I do not credit McAvoy's statement that he received no telephone calls from Williams during 1972, testimony which he, in any event, changed later when he admitted to a telephone conversation with Williams in early December 1972 The testimony of witnesses for the Respondent, on the one hand, and witnesses for the General Counsel, on the other, was in sharp conflict in numerous instances and this is particularly apparent in comparing the testimony of McAvoy with that of Williams and Bailey. In most instances, as will appear, I have credited Williams and Bailey over McAvoy. My reasons for so doing are several. Bailey was a very straightforward witness who, except in one or two minor instances, readily answered questions put to her. While Williams was not quite as self-confident as her sister, she also impressed me with the sincerity of her demeanor and I conclude her testimony was generally reliable McAvoy, on the contrary, seemed to have difficulty testifying on both days of the hearing. He changed his testimony some 9 times by my count, did not respond to a number of questions and, on some 11 occasions, asked that a question be repeated or, to use his expression on some such occasions, "rephrased." A number of the questions thus asked to be repeated were fairly simple ones McAvoy, according to my trial notes and my recollection, distinctly lowered his eyes when denying certain of the testimony of Bailey and Williams which was important to the General Counsel's case, as will appear I have the impression that McAvoy is a busy executive and that the number of phone calls he received from laid-off employees in 1972 may department, giving her the same reasons he had given Bailey.5 Bailey also came to see McAvoy in September 1972 to discuss employment opportunities at the plant at that time- The workload and employment picture was discussed between McAvoy and Bailey, but there is no indication that McAvoy offered to recall Bailey at that time.6 Sometime, apparently in late September or early October 1972, Williams telephoned McAvoy for a letter of recommendation. McAvoy agreed to supply letters of recommendation to Williams and Bailey if they came to his office at 4 o'clock on the afternoon of October 3 or 4, 1972. Williams and Bailey went to McAvoy's office, as arranged by Williams, but McAvoy stated that "they" (apparently referring to Respondent) had changed their mind and that he was not going to give either of them a recommendation because it was against "Company policy" but that he would answer inquiries from prospective employers. When asked by Bailey whether or not there was a chance they would be recalled to work, McAvoy stated, in essence, that business was improving and that both would eventually be recalled.7 D. Efforts of Bailey and Williams To Obtain Reemployment After October 11, 1972, the Anniversary Date of Their Layoff On or about December 7, 1972, Bailey telephoned McAvoy and told him that she had heard from another employee, Janet Puckley, that 12 girls had been recalled and wondered if McAvoy had tried to get in touch with her. McAvoy denied that 12 girls had been recalled but admitted that some had been recalled. Upon hearing this Bailey told McAvoy she thought she was next on the list but McAvoy stated that Respondent was then recalling employees at its discretion and hung up.8 Also on or about December 7, Williams telephoned McAvoy to inquire about her opportunities, if any, to be have been too numerous to recall or to distinguish one from the other. But, whatever were the reasons for his difficulty in testifying, suffice it to say that, based on an examination of his testimony and his demeanor on the stand as compared with my examination of the testimony of Bailey and Williams and the demeanor of each, all as detailed above, I have credited the testimony of the latter two individuals over that of McAvoy, unless I specifically state to the contrary. 6 My findings as to this event are based on the undisputed testimony of McAvoy. 7 The findings as to the telephone call are based on the credible testimony of Williams. I discredit McAvoy's denial that he promised Williams that he would give her and Bailey a letter of recommendation. My trial notes indicate he lowered his eyes when making this denial. The date of this meeting is based on the testimony of McAvoy. Williams and Bailey testified that the meeting was sometime in October 1972 The findings as to what occurred at the meeting are based on the credible testimony of Williams and Bailey as corroborated in part by McAvoy. I do not credit McAvoy's testimony that he did not state that either would, in fact, be recalled. S 1 establish the date of this conversation as December 7, because Respondent's records show that the first employees to be rehired or hired into the finishing department that month did not begin work until December 4, the date Bailey recalled that this conversation occurred. This date, December 7, is also consistent with the testimony of McAvoy The aforementioned records established that, by December 6, some II employees had been hired or rehired into the finishing department. Other than the date, my findings as to this telephone conversation are based on the credible testimony of Bailey. ERIE COUNTY PLASTICS CORPORATION 567 rehired, stating that she had heard girls with less seniority than she had been taken back. McAvoy replied that he would rather not discuss it. To this Williams rejoined that she would like a reason. McAvoy then stated "Okay-bad work record." Williams then inquired whether her experi- ence of having the boss swear at her and "throwing stuff" gave her a bad work record. McAvoy answered, "I suppose you could say that." Williams stated she did not think this was right and the conversation ended.9 The "swearing and throwing stuff" incident referred to by Williams occurred about 6 weeks before her layoff on October 11, 1971. Williams was working on the line with a hot stamp with which she was having trouble. Her foreman, Upperman, who is also her nephew, was working on a machine next to her. When he completed his work he asked her to accompany him into a nearby office where he proceeded to "holler and swear" at her.10 Upperman's performance on this occasion greatly disturbed Williams, hence she went to see McAvoy about it. McAvoy, upon being told by Williams about Upper- man's instant conduct, told Williams that she had a good work record and that there was no reason why the incident should have taken place. McAvoy further advised Williams that since she was upset she could take the rest of the day off.11 On the following day, that is, on or about December 8, 1972, Bailey again telephoned McAvoy and asked him to explain what he meant by his statement that employees were being recalled at "management's discretion?" McA- voy responded by stating that Bailey wasn't interested in working for Respondent. Bailey then asked him what he meant by that remark. McAvoy explained, "Well, you were for the Big Union, you know," to which Bailey rejoined that there was "nothing wrong with that." Bailey then asked McAvoy whether being an election observer had any bearing on her (being denied) recall. McAvoy replied, 9 I make these findings, except for the date of the conversation, on the basis of the credible testimony of Williams. Some aspects of Williams' version were not disputed by McAvoy in his testimony except that McAvoy denied discussing the incident involving Williams' boss swearing at her I do not credit this denial. McAvoy also stated, unlike Williams, that Williams accused McAvoy of not rehiring her because of her support for the URW, which, McAvoy testified, he denied to Williams In so testifying McAvoy distinctly lowered his eyes. I find that no mention was made in this conversation of the URW. The date of the conversation is based on McAvoy's testimony. 10 I make these findings based on the credible testimony of Williams. Upperman did not testify. u I make these findings based on the credible testimony of Williams. McAvoy also recalled this incident. I do not credit his denial that he told Williams on this occasion that she had a good work record. 12 Inasmuch as McAvoy used the expression "Big Union" interchange- ably with the United Rubber Workers in this conversation and inasmuch as I have found that the expression "Big Union" was common parlance utilized among employees at the plant to describe the URW, I conclude that, when he spoke of the "Big Union," McAvoy was referring to the URW. 13 I make these findings on the basis of the credible and generally consistent testimony of Bailey in this regard. I discount Bailey's negative answer, at transcript p. 46, to a compound question posed by counsel for Respondent in respect to her evaluation of her own work since her negative answer to the second part of the question is not inconsistent with the literal meaning of the rest of her testimony, I do not credit McAvoy's version (the sense of McAvoy's testimony was that the telephone conversations with Bailey on the instant 2 consecutive days were one conversation). I specifically do not credit his statements that: Respondent's poor evaluation of Bailey's prior work record was the reason "Well, Erie County Plastics didn't need United Rubber Workers." Bailey continued that she thought she had a good work record but McAvoy answered that "they" weren't "going by that" and added that Respondent did not need the Big Union.12 At no time in this conversation did McAvoy refer to any management evaluation of Bailey's prior work record. He rather stated that he didn't know her work record and would not consider her own evaluation of herself. I further find that-at no time in this conversation did Bailey swear at McAvoy or threaten him. This conversation concluded with McAvoy hanging up the telephone on Bailey.13 On December 28, 1972, Bailey in the company of Williams, and employees Warner and Froncek, made a telephone call from the home of Warner to Independent Union President Nancy Stover. Bailey told Stover that she, Bailey, would like to file a grievance in -respect to Respondent's failure to rehire her. Stover stated that she didn't have any grievance papers on hand and did not even know if the Independent "had such a thing." Stover stated that she thought the grievance would be a good one but that McAvoy had already spoken to her about the possibility of Bailey filing one. Stover added that McAvoy had told her that, if Bailey filed a grievance, Stover should throw the grievance away because it would have little value.14 No grievance was filed by Bailey at that time and neither Bailey nor Williams has been rehired by the Respondent. E. Respondent's Defenses Respondent's affirmative defenses based on lengthy documents put into evidence as well as the testimony, primarily of McAvoy and Charles Sandburg (who is currently the supervisor of Respondent's finishing depart- ment), are essentially as follows. for his failure to rehire her, that Bailey brought up the matter of the URW; that Bailey swore at him and threatened him, and that Bailey hung up on him. As mentioned, I have found that McAvoy hung up in the first conversation, as Bailey testified on direct, and McAvoy again hung up on Bailey on the next day, as Bailey testified on cross. McAvoy lowered his eyes when testifying that he told Bailey that her affiliationowith URW had nothing to do with the fact she was not rehired. He also lowered his eyes when testifying with regard to her claimed bad language. Williams, who was a witness to Bailey's end of this telephone conversation corroborated that Bailey used no profane or abusive language in it. Several witnesses for the General Counsel including Williams. Kolstee, McMichael, Fitch, and Vanik, all of whom had worked nearby Bailey in the finishing department, credibly testified they could not recall her using profane or abusive language at Respondent's plant. 14 I make these findings on the basis of the credible testimony of Bailey, as essentially corroborated by Williams who listened to this conversation on another telephone extension Stover did not testify McAvoy admitted having a discussion with Stover about Bailey filing a grievance but this discussion related to an earlier attempt by Bailey to file a grievance over her failure to be recalled into molding. I find, consistent with McAvoy's testimony, that McAvoy also had a conversation with Stover in August or September 1972 when, Bailey confirmed, she had asked for Stover's assistance in inquiring why she and her sister had not been recalled into the molding department . Stover told McAvoy that the executive committee (apparently) of the Independent had decided there was no ground for such a grievance In any event, there is no indication that a grievance was filed by Bailey or Williams at that time. I do not credit McAvoy's assertion that he never told Stover or any other union official that, if they ever received a grievance from Bailey or Williams, they should disregard it. 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent avers that in applying the provisions of its contract with the Independent dealing with laid-off employees all employees are laid off in accordance with their seniority; also all employees are recalled in order of seniority to the department from which they were laid off during the first year succeeding this layoff or during a period equal to the time of employment prior to layoff, whichever period is shorter. Seniority is based on the date of hire. By agreement with the Independent, Respondent does not recall employees under this provision to a different department from that where they last worked because of another provision of the contract which requires termination of an employee who declines recall. Since recall rights expire under the contract upon completion of a year's uninterrupted layoff (or a period equal to the laid- off employee's period of employment, as noted) manage- ment has no further contractual obligation thereafter to recall laid-off employees. Management does, however, follow the practice of considering the rehire of former employees who have lost their contractual recall rights as new employees, but only after an evaluation of the prior work performance of the laid-off employee is rendered by the supervision of the department in which the laid-off employee last worked, If the evaluation is favorable the laid-off employee may be rehired; if not, says Respondent, the laid-off employee will not be rehired. I find that the foregoing management policies and practices have at times been followed at Respondent's plants and that such policies are not substantially inconsis- tent with Respondent's contract with the Independent. As previously mentioned, extensive evidence and testimony- -largely undisputed-was spread across the record to support these contentions. Undisputed testimony by McAvoy also explained certain instances where, in those cases where seniority was not followed in the matter of laying off employees, the failure to do so was founded upon good and sufficient cause. For example, a high seniority former employee, Delores Rupp, was laid off out of seniority because, being confined to a wheel chair, she was limited in her work capability and the work she was doing had ceased; for the same reason Rupp was not recalled. There is also undisputed testimony by Sandburg and McAvoy that evaluations were rendered in October 1972-more than a year after the big finishing department layoff on October 11, 1972, which caught Bailey and Williams-of some 16 finishing department employees who had not been recalled, including Bailey and Williams. Also according to the undisputed testimony of McAvoy, similar evaluations had been performed-after the contract recall period-with respect to molding department employ- ees who had not been recalled after a large layoff in the molding department which had preceded the instant layoff in the finishing department. 15 I make this finding on the basis of the credible testimony of Smith, which is not essentially disputed by McAvoy in his full testimony. 16 No other department was mentioned by McAvoy, even in the context of Kolstee's query in this same conversation whether Upperman and Bhghstone were still the supervisors in the finishing department. While McAvoy answered this query in the negative, it would seem to me reasonable for him to have stated, at thisjuncture in the conversation, that the position offered was in a different department, if, in fact, that were the case. Yet he did not. In reaching the conclusion that Kolstee was being offered rehire into I further find, however, that exceptions to these and other Respondent personnel policies (for other than good and sufficient cause, as in the case of Rupp) have been made by Respondent at least during the years 1971 and 1972. - Thus, with respect to the departmental recall policy, McAvoy conceded that Judy Smith, an employee laid off from the finishing department on October 11, 1971, was rehired into the molding department in September 1972. While it is true that Smith had only been a probationary employee in finishing when she was laid off, the fact remains that Respondent must have undertaken some expense to train her in finishing, yet rehired her into molding. McAvoy even explained to Smith, when she was rehired into molding, that this action was contrary to normal pohcy.15 Employee James Kemp was laid off from the finishing department on October 11, 1971, and recalled into the molding department on October 15, 1971. McMichael, another former finishing department em- ployee who was laid off on October 11, 1971, was offered a job in Respondent's office by McAvoy in August 1972. While McMichael had also been a probationary employee in finishing when she was laid off, here again Respondent had some investment in training her in finishing work. Moreover, the offer to take McMichael back in different work preceded by 2 months a work evaluation of her prior employment (along with the other former finishing department employees evaluated in mid-October 1972) wherein she was rated with the notations "Do not rehire! Not acclimated to factory work." In a similar vein McAvoy also, testified that no employees were transferred from the finishing department to the molding department yet later conceded that Brenda Steinbaugh had been transferred from the former depart- ment to the latter in October 4, 1971. The record showed yet another inconsistency in the attempted reemployment of Jane Kolstee. Kolstee, like Bailey, Williams, and others, was laid off from the finishing department on October 11, 1972. About October 2, 1972, before the anniversary of Kolstee's layoff (that is, before October 11, 1972) Kolstee was offered recall by McAvoy but declined it. I conclude, in the circumstances, that Kolstee was being offered recall into the finishing 16 department.17 The inconsistency of Respondent in the Kolstee matter derives from the fact that, according to Respondent's records, Kolstee was rated as having a job performance "not up to standard" with the further notation "do not rehire," this being I of the 16 above-mentioned evaluations of former finishing department employees performed in the middle of October 1972 after all 16 had lost their contractual seniority rights. The instant evaluation of finishing, I am not unmindful that there is no indication that any other employees were hired into the finishing department in October 1972. However, there was hiring into that department in the last week of September 1972. 17 I make these findings with regard to McAvoy's offer of reemployment to Kolstee, based on Kolstee's credible testimony in this regard. Kolstee was a sincere straightforward witness I do not credit McAvoy's statement that he did not offer Kolstee recall prior to October 11, 1972. ERIE COUNTY PLASTICS CORPORATION 569 Kolstee was rendered within a week or two of her declination of McAvoy's job offer in early October 1972.18 It was also reported to employee Vanik, a former finishing department employee who had been laid off on October 11, 1971, that "Erie County Plastics" had called her home in October 1972 to see if she were still interested in working for Respondent19 and also called her supervi- sor, Ted Lish, at the office of her present employer, Elgin Electronics, on February 13, 1973, to ask her to report for duty at Respondent on the following Thursday 20 Vanik was rated ineligible for rehire because of below standard job performance in the evaluation given of her prior work record by Respondent in mid-October 1972. F. Concluding Findings Within the framework of Respondent's foregoing person- nel policies, which it does not consistently apply, Respon- dent's defense comes down essentially to the contention that, since the contractual recall rights of Williams and Bailey had been exhausted, it declined to rehire them because of their claimed poor work records. The perform- ance evaluations rendered in mid-October 1972 on Bailey and Williams comprise the only evidence proffered in support of this claim.21 In all the circumstances I am constrained to accord little weight to these performance evaluations and I have made this determination for a number of reasons. Neither evaluation was substantiated by any specific example of unsatisfactory job performance. In each instance the evaluation was conclusionary with no de- tails 22 No warning slips or other written notations of poor work performance were contained in Respondent's person- nel file for either Bailey or Williams. Nor was there any testimony of any oral warning given to either, other than the Williams-Upperman matter, which, concededly, was not serious. Nor, in fact, was any incident testified to in which either Bailey or Williams had performed badly. Sandburg, on whose opinion the evaluation of each was based, admittedly did not discuss with Hamilton any specific incidents involving any employee being rated when Hamilton asked him his evaluation of each of the 16 former finishing department employees who had not been recalled. Nor could Sandburg give any specific examples of 1s Even if my conclusion that Kolstee was being offered work into the finishing department is in error, and if she was instead being offered employment in molding or some other department, such an offer would have been contrary to Respondent's departmental recall policy. In this regard it should be noted that two employees were hired or rehired into molding on October 2, 1972, and others were hired or rehired into molding and also shipping later in that month. 18 Vanik's mother told Vamk that she, the mother, had received this call. 20 Lish informed Vanik that he had received this call. 21 I do not conclude that the Upperman incident played any part in the evaluation of Williams' work record. McAvoy conceded at the hearing that he "saw no seriousness in the incident " Sandburg did not mention the incident in his testimony. Moreover, I conclude that Upperman's conduct towards Williams was unjustified based on her credible testimony of McAvoy's complimentary statements to her after she reported the incident to McAvoy. Upperman had also been unjustifiably abusive to Kolstee on one occasion. Thus, after Kolstee reported to Hamilton, then the head of the finishing department, that Kolstee and Upperman had a confrontation in which Upperman had criticized Kolstee in an angry manner out on the line, the claimed poor performance of Bailey or other employees when he testified at the hearing.23 Further, there is a serious question as to Sandburg's competence to have given these ratings. His principal function before the layoff in 1971 was that of a project engineer in the finishing department, troubleshooting those lines which were having problems. Both Williams and Bailey credibly testified that he was- not their supervisor. Finally, the evaluations given by Sandburg to Hamilton are inconsistent with McAvoy's own statements or actions towards a number of employees given poor ratings. For example, as has been recounted, McAvoy offered Kolstee recall in October 1972 shortly before she was given a work evaluation whereby she was rated ineligible for rehire.24 Also, as noted, McAvoy told Williams she had a good work record at the time of the Upperman incident and McAvoy told Bailey in his conversation with her on or about December 8, 1972, that her job evaluation had nothing to do with his refusal to rehire her. Again, as previously found, McAvoy agreed to furnish letters of recommendation for Williams and Bailey. In all the circumstances, the significance to be attached to the ratings given Vanik and McMichael is likewise questiona- ble. On the other hand, McAvoy's statements to Bailey during the aforementioned conversation on December 8, 1972, support the conclusion that her activities in behalf of URW during its election campaign had a great deal to do with his refusal to rehire her. Thus, his accusation that she was not interested in working for Respondent was explained by his further statement that she had favored the URW and that Respondent did not need the URW. These remarks establish McAvoy's knowledge of Bailey's activi- ties in support of the URW and his animus against that union. In making this finding regarding McAvoy's knowl- edge, I also rely on the open nature of her act in appearing as a URW election observer in the Board-conducted election; I likewise rely on McAvoy's admission at the hearing that he was aware of Bailey's union activities before December 5, 1972. As for Williams, she also actively supported the URW by signing a card, attending all of its meetings during the election campaign, talking about the URW at the plant, and wearing a union button at the plant on the date of the election. She specifically informed Blighstone, an admitted Hamilton spoke to Upperman in the former's office. Upperman later emerged from Hamilton's office and told Kolstee that she was doing "a good job." 22 The entire evaluation of Bailey was "Do not rehire. Below standard job performance." The entire evaluation of Williams was "Do not rehire! All around performance is poor." 23 See tr. p. 252, 1. 11 through p. 253, 1.6. 24 In this regard, I do not think Respondent can find any comfort in its contention that, during the year following a layoff, contractual seniority has been rigidly applied in recall, regardless of the prior work performance of any employee on the seniority list. For, even assuming, arguendo, that this argument has merit-and thus that there was no inconsistency between Respondent's offer to recall Kolstee and its almost contemporaneous rating of her as ineligible for rehire-then why wasn't Bailey, the next employee on the seniority list after Kolstee, offered recall in early October 1972 after Kolstee had refused it? Nor can Respondent argue from „ the Kolstee matter that it thereby offered reemployment to a former union adherent. For , while Kolstee attended URW meetings in the summer of 1971, there is no probative evidence that Respondent knew of it. 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supervisor within the meaning of Section 2(11) of the Act, of her support for the URW.25 McAvoy's animus against that union was, as mentioned above, clearly outlined to Bailey in his conversation with her on December 8, 1972.26 In sum, I am satisfied that the performance ratings rendered by Respondent on Bailey and Williams in mid- October 1972 do not supply the real reasons why Respondent refused to rehire them. It is rather my conclusion that Respondent's failure to rehire Bailey and Williams, on and after December 7, 1972, was founded upon their support for the URW. I find therefore that Respondent's refusal to rehire Bailey27 and Williams, on and after December 7, 1972,28 violated Section 8(a)(3) and (1) of the Act.29 Williams shall be made whole for any loss of earnings they may have suffered by reason of the discrimination against them by payment to each of the sum of money she would have earned from the date of the discrimination against her until she is offered reemployment, less net earnings, if any, during such period to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289, with 6-percent interest thereon as required by Isis Plumbing & Heating Co., 138 NLRB 716. It will also be recommended, in view of the nature of the unfair labor practices in which Respondent has engaged (see N.LR.B. v. Entwistle Mfg. Co., 120 F.2d 532,536 (C.A. 4, 1941)), that Respondent be ordered to cease and desist from infringing in any other manner upon the rights guaranteed by Section 7 of the Act. N. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY The recommended Order will contain the conventional provisions involving findings of interference, restraint, and coercion and unlawful discharge in violation of Section 8(a)(3) and'(1) of the Act. This will require Respondent to cease and desist from the unfair labor practices found and to post a notice to that effect which will also state the affirmative action Respondent will be required to take to remedy its refusal to reemploy Bailey and Williams. Thus, Respondent will be required to offer Bailey and Williams employment to the positions to which they were unlawfully denied rehire on and after December 7, 1972, or the substantial equivalent of such positions, without prejudice to their seniority or other rights and privileges as if they had, in fact, been rehired on December 7, 1972. Bailey and zs I do not credit McAvoy's testimony that he did not know of Williams' union activities nor do I credit his statement that Blighstone did not tell him. 26 Moreover, the close relationship of Bailey and Williams, as sisters, and their joint efforts to obtain reemployment in the context of McAvoy's strong animus against the union activities of Bailey impel me to the conclusion that McAvoy also refused to rehire Williams because of Bailey's union activities as well as Williams' own. See Tolly's Market, Inc., Ben Franklin, 183 NLRB 379. 27 Chef Nathan Sez Eat Here, Inc., 181 NLRB 159, enfd. 434 F.2d 126 (C.A. 3, 1970). 28 According to Respondent's records it continued to rehire employees into the finishing department until December 16, 1972, and into the molding department until December 11, 1972. Foremen Johnson and Middleton, who were rehired into the finishing department on December 5, 1972, had lower seniority-based on the then defunct seniority list of September 30, 1971,-than both Bailey and Williams. 29 Even if both would be considered applicants for employment, Respondent's refusal to employ them is nonetheless an unfair labor practice within the meaning of these Sections of the Act. Phelps Dodge Corporation v. N.L.RB., 313 U.S. 177 (1941). In its brief Respondent moved that I strike the testimony of Bailey and Williams because Respondent's counsel was obligated to return to the General Counsel certain statements of these witnesses'after Respondent's counsel completed his cross-examination of each such witness during the course of the General Counsel's case-in-chief. The statements had been CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce and URW is a labor organization all within the meaning of ,the Act. 2. By refusing to rehire Mary Lou Bailey and Gertrude Williams, in each instance, because of her activities on behalf of URW, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 3. By refusing to rehire Mary Lou Bailey and Gertrude Williams, in each instance, because of her activities in behalf of URW, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within , the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact , conclusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER30 Respondent, Erie County Plastics Corporation, Corry, furnished to the Respondent from the General Counsel's file as statements given the General Counsel by the witnesses prior to the hearing. Respondent's brief bottoms this motion upon a provision of Sec. 10394.11 of the Board's published field manual. This motion is hereby denied. To begin with Respondent's counsel did not cite this provision of the Board's manual to me at the hearing when he requested that he be allowed to retain these statements. Secondly, Respondent declined my offer on the record at the hearing to introduce these same statements into evidence. Finally, when Bailey and Williams testified in rebuttal-the last two witnesses at the hearing-counsel for Respondent did not then again seek to examine their statements as would have been his right. See Sec. 102.118(b) of the Board's Rules and Regulations and Statement of Procedure, Series 8, as amended. My ruling denying Respondent's request for so-called exculpatory information from the General Counsel's file is affirmed because the motion lacked merit Brady v. Maryland 373 U.S. 83, relied on by Respondent in making this request, is distinguishable as it involved a criminal proceeding. Respondent's motion in its brief to stake the testimony of Vanik is denied as lacking in merit. The instant testimony, as announced at the hearing, was taken only for the purpose of reporting words spoken to Vanik, not their truth or falsity. Lastly, Respondent's motion (made at the hearing and taken under advisement at that time) to dismiss the complaint on the ground advanced by Respondent's counsel that the General Counsel failed to make out a prima facie case is hereby denied, consistent with my findings, supra 10 In the event no exceptions are filed as provided by Sec. 102.46 of the ERIE COUNTY PLASTICS CORPORATION 571 Pennsylvania, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in, or activities in behalf of, United Rubber, Cork, Linoleum, and Plastic Workers of America, AFL-CIO-CLC, or in any other labor organization, by discriminating in regard to hire and tenure of employment or in any other manner in regard to any term or condition of employment of any of Respon- dent's employees in order to discourage union membership or activities. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act, except to the extent such rights may be affected by an agreement requiring membership in a labor organization, as authorized in Section 8(a)(3) of the Act, as amended. 2. Take ' the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer Mary Lou Bailey and Gertrude Williams employment in the positions to which they were denied rehire in Respondent's finishing department, or substan- tially equivalent positions, without prejudice to their seniority or other rights and privileges, as if they had been rehired on December 7, 1972, and make them whole for any loss of pay they may have suffered in the manner set forth in "The Remedy" section of this Decision. (b) 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 amount of backpay due under the terms of this recommended Order. (c) Post at its place of business in Corry, Pennsylvania, copies of the attached notice marked "Appendix." 31 Copies of this notice on forms provided by the Regional Director for Region 6, after being duly signed by Respondent's representative, shall be posted by it immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps .shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 6, in writing, within 20 days from the date of the receipt of this Order, what steps Respondent has taken to comply herewith. Ryles and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, 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. 31In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY BORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had the chance to give evidence, it has been decided that we, Erie County Plastics Corporation, have violated the National Labor Relations Act and we have been ordered to post this notice. The National Labor Relations Act, gives you, as employees, certain rights, including the right to self- organization,, to form, join, or help unions and to bargain through a representative of your own choosing. Accordingly, we give you these assurances: WE WILL NOT do anything which interferes with your rights above, except to the extent that said rights are affected by an agreement requiring membership in a labor organization, as authorized in Section 8(a)(3) of the National Labor Relations Act, as amended. WE WILL NOT refuse to rehire, discharge, or take any reprisal against you because you support or engage in organizational activities in behalf of United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO-CLC. WE WILL offer to rehire Mary Lou Bailey and Gertrude Williams and we will also make up all pay they lost as' the result of the refusal to rehire them with 6-percent interest. ERIE COUNTY PLASTICS CORPORATION (Employer) Dated By (Representative) (Title) 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 concern- ing this notice or compliance with its provisions may be directed to the Board's Office, 1536 Federal Building, 1000 Liberty Avenue, Pittsburgh, Pennsylvania 15222, Tele- phone 412-644-2969.