Pinter Bros., Inc.

PINTER BROS., INC. Pinter Bros., Inc. and Truck Drivers Local Union No. 807, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca and Charlotte Destefanis and Linda Schulz. Cases 29-CA-4946, 29-CA-4946-2, and 29-CA- 4946-3 November 17, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On May 6, 1977, Administrative Law Judge Elbert D. Gadsden issued the attached Decision in this proceeding. Thereafter Respondent filed exceptions and a supporting brief and the General Counsel filed a request that the Board correct the recommended notice. 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 brief and has decided to affirm the rulings and findings' of the Administrative Law Judge, and to modify his remedy so that interest is computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977).2 The Administrative Law Judge found that Respon- dent violated the Act as alleged in the complaint. Thus, in effect, he found that Respondent violated Section 8(a)(1), (3), and (4) of the Act in that it discriminatorily: (1) denied employees Charlotte Destefanis and Linda Schultz a customary Christmas bonus in 1975; (2) denied Destefanis a wage increase in January 1976;3 (3) laid off employees Destefanis, Schultz, Diane Lufker, and Judith Basick on or about April 2, and refused to reinstate all except Basick;4 and (4) also in April, offered reemployment to Destefanis and Schultz to more onerous positions. However, the Administrative Law Judge, apparently inadvertently, failed to conform his Conclusions of Law to these findings5 and, accordingly, we do not adopt his Conclusions of Law. The Administrative Law Judge, in various portions of his Decision, apparently inadvertently, fixes as "1975" the year of the April I commence- ment of the strike and picketing. the alleged Apnl 8 recall of Basick, and the April 6 recall of Destefanis and Schultz. The record reveals that these events occurred in 1976. 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 (1950), enfd. 188 F.2d 362 (C.A 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 233 NLRB No. 83 We agree with the Administrative Law Judge, for the reasons stated by him as amplified upon below, that all of the unlawful conduct described above was precipitated by the union activity of the discrimina- tees and the fact that they either filed charges and/or testified in a Board proceeding, and that, therefore, the denials of bonuses and a wage increase, the layoffs and refusals to reinstate, and the offers of reemployment all violated Section 8(a)(4), (3), and (1) of the Act. With regard to Respondent's failure to grant bonuses and a wage increase, the record establishes, as the Administrative Law Judge found, that Re- spondent harbored a continuing hostility against those employees who were either involved in union activity or in an earlier unfair labor practice proceeding against Respondent involving the Union's organization of Respondent's clerical em- ployees. 6 The record further establishes that Respon- dent's asserted reasons for the denials of the bonuses and wage increase, i.e., declining business and failure of the alleged discriminatees to attend company social functions, were mere pretexts, particularly when viewed in light of Respondent's failure to adduce any documentary evidence to substantiate its claim of business justification and the credited testimony shows that Respondent did not uniformly enforce its alleged attendance policy. Furthermore, it is clear, both from the instant record and the Board's previous Decision, that Respondent was opposed to the unionization of its clerical employees. We therefore find that Respondent used the denial of bonuses and wage increases to retaliate against those employees who were union adherents and who had earlier testified against it. Similarly, with respect to the layoffs, the record establishes that, with the exception of Basick, only those employees on the day shift who had been active in the Union's organizational campaign were selected for layoff, and that all four of the laid-off employees had testified adversely to Respondent in the earlier proceeding. Furthermore, the record herein and the earlier Board Decision establish that the alleged discriminatees were selected for layoff while employees with less seniority were retained, and that this selection was contrary to Respondent's 2 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 3 All dates hereinafter are 1976 unless otherwise indicated. 4 Basick was reinstated on or about April 8. In his recommended Order and remedy the Administrative Law Judge inadvertently failed to provide backpay for Basick. We shall modify the Order and remedy accordingly. 5 For example, he concluded that the failure to give bonuses and a wage increase only violated Sec. 8(aX I), the layoffs only violated Sec. 8(aX3) and (I), but the offers of reemployment violated Sec. 8(aX3), (4), and (I) of the Act. 6 Pinter Bros., Inc., 227 NLRB 921 (1977), in which Respondent was found to have violated Sec. 8(aX 1). (3), (4), and (5) of the Act. 575 DECISIONS OF NATIONAL LABOR RELATIONS BOARD usual practice of laying off employees on the basis of seniority. Additionally, contrary to Respondent's contention that no work was available on the day shift, the credited testimony establishes that after the layoffs, night-shift employees performed work previ- ously done by the alleged discriminatees on the day shift and that, therefore, the work was merely transferred from one shift to another. Accordingly, on the basis of all the foregoing, we find and conclude that the layoffs were discriminatorily motivated and in retaliation for the employees testifying in a Board proceeding.7 We further find and conclude that the refusal to reinstate Destefanis, Lufker, and Schultz, and the eventual offers to reemploy Destefanis and Schultz in more onerous positions, were a continuation of Respondent's unlawful conduct. CONCLUSIONS OF LAW 1. Respondent Pinter Bros., Inc., is an Employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Truck Drivers Local Union No. 807, Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, is a labor organization within the meaning of the Act. 3. By failing to give employees Charlotte Destefa- nis and Linda Schultz a Christmas bonus in December 1975 and by failing to give Charlotte Destefanis a wage increase in January 1976 because of their union activity and because they filed charges and/or testified under the Act, Respondent has violated Section 8(a)(4), (3), and (1) of the Act. 4. By laying off Charlotte Destefanis, Linda Schultz, Diane Lufker, and Judith Basick on April 2, 1976, because of their union activity and because they filed charges and/or testified under the Act, Respondent has violated Section 8(a)(4), (3), and (1) of the Act. 5. By refusing to reinstate Charlotte Destefanis, Linda Schultz, and Diane Lufker because of their union activity and because they filed charges and/or gave testimony under the Act, Respondent has violated Section 8(a)(4), (3), and (1) of the Act. 6. By offering reemployment to employees Char- lotte Destefanis and Linda Schultz on April 8, 1976, to a different and more onerous position, because of their union activity and because they testified and/or filed charges under the Act, Respondent has violated Section 8(a)(4), (3), and (I) of the Act. 7. By the conduct described in paragraphs 3 through 6 above, Respondent has interfered with, T As to Basick. neither the instant record nor the Board's earlier Decision establishes the extent of her union activity. However, inasmuch as we find that Respondent effectuated all of the layoffs in order to discourage union restrained, and coerced employees in the exercise of rights protected by Section 7, and thereby violated Section 8(a)(1) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Pinter Bros., Inc., Deer Park, New York, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Failing to give employees Christmas bonuses and a wage increase because they engaged in union activity on behalf of Truck Drivers Local Union No. 807, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, or any other labor organization, or because they filed charges with or gave testimony to the Board. (b) Laying off, discharging, or refusing and failing to recall employees because of their union activity, or because they filed charges with or gave testimony to the Board. (c) Offering reemployment to employees on a different and more onerous work schedule because of their union activity or because they had filed charges with or given testimony to the Board. (d) In any other manner interfering with, restrain- ing, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, or to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer Charlotte Destefanis, Linda Schultz, and Diane Lufker, reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights previously enjoyed, and make said employees and employee Judith Basick whole for any loss of pay suffered by reason of the discrimination against them with interest thereon to be computed in the manner set forth in the Remedy, as modified herein. (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 Order. activity, we conclude that Basick's layoff. as well as the others, violated Sec. 8(aX3) of the Act. 576 PINTER BROS., INC. (c) Post at its Deer Park, New York, facility copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able 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 29, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. 8 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE TO EMPI.OYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT fail to give our employees bonuses and a wage increase because of their union activity or because they filed charges with and/or gave testimony to the National Labor Relations Board. WE WILL NOT layoff, discharge, or refuse to recall employees in order to discourage member- ship in or support of Truck Drivers Local Union No. 807, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or because they filed charges and/or gave testimony to the National Labor Relations Board. WE WILL NOT offer reemployment to our employees to a different and more onerous position because of their union activity or because they filed charges and/or gave testimony to the National Labor Relations Board. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, or to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all. such activities, except to the extent that such rights may be affected by lawful agreement in accord with Section 8(a)(3) of the Act. WE WILL offer Charlotte Destefanis, Linda Schultz, and Diane Lufker immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority and other rights and privileges, and make said employees and employee Judith Basick whole for any loss of pay they may have suffered by reason of the discrimination against them, plus interest. PINTER BROS., INC. DECISION STATEMENT OF THE CASE ELBERT D. GADSDEN, Administrative Law Judge: A charge having been filed on April 7, 1976, in Case 29-CA- 4946 by Truck Drivers Local Union No. 807, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, and individual charges having been filed on April 21, 1976. by Charlotte Destefanis in Case 29-CA-4946-2 and Linda Schulz in Case 29-CA-4946-3, against Pinter Bros., Inc., herein called Respondent, the General Counsel, by the Regional Director for Region 29, issued the consolidated complaint herein on May 28, 1976.1 The complaint in substance alleges that, as a result of four of its employees filing charges or testifying against it, Respondent failed to give two of said employees the customary Christmas bonus on December 24, 1975; that it failed to give one of said employees a customary annual wage increase on January 1, 1976; that it laid off all four of said employees on April 2, 1976; and that it has since thereafter failed and refused to reinstate three of said employees, although on April 6, 1976, it offered two of them more onerous work on a different (night) shift; and that such conduct by Respon- dent was restraining, coercing, and discriminating against employees in violation of Section 8(aXI 1) and (3) of the Act. The hearing in the above matter was held before me in Brooklyn, New York, on October 26, 27, and 28, 1976. Counsel for the General Counsel elected not to submit a brief. However, a brief has been received from counsel for Respondent which has been carefully considered. Upon the entire record in this case and from my observation of the witnesses, I hereby make the following: FINDINGS OF FACT i. JURISDICTION Pinter Bros., Inc., the Respondent, has at all times material herein maintained its principal office and place of ' This complaint was issued subsequent to the issuance of several complaints and a consolidated hearing held in July and August 1975 and a consolidated hearing held in January 1976. In the pror heanngs, Charging Parties Charlotte Destefanis and Linda Schulz testified along with Judith Basick and Diane Lufker as witnesses on behalf of the General Counsel. Diane Lufker was also a charging party in one of the pror cases. 577 DECISIONS OF NATIONAL LABOR RELATIONS BOARD business at Carll's Path in the Town of Deer Park, County of Suffolk, and State of New York, herein called the Deer Park Yard, where it is engaged in the intrastate and interstate trucking business. During the past year, a representative period, Respondent has gross revenue from its trucking services in excess of $5 million, and it received revenues for services performed outside the State of New York in excess of $50,000. The complaint alleges, Respondent admits, and I find that Respondent is 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 Truck Drivers Local Union No. 807, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. I1I. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent is engaged in an intrastate-interstate truck- ing business with its principal office and place of business located in Carll's Path, Town of Deer Park, Suffolk County, New York, herein called the Deer Park Yard. Respondent has three types of employees; namely, truck- drivers, platform men, and clericals. Respondent's employ- ees Charlotte Destefanis, Linda Schulz, Judith (Judy) Basick, and Diane Lufker testified in a Board hearing on July 28, 29, and 30 and August 18, 19, 20, and 21, 1975, and in other proceedings in January 1976. On December 24, 1975, Respondent failed to give Charlotte Destefanis and Linda Schulz a Christmas bonus that they customarily received in past years. On January 1, 1976, Respondent failed to give Charlotte Destefanis a wage increase which she ordinarily received in July and January. During 1973, Truck Drivers Local Union No. 807 and Respondent were parties to a collective-bargaining agree- ment for the truckdrivers and platform men. The parties herein stipulated that the National Master Agreement, which covered Respondent's truckdrivers and platform men, expired on March 31, 1976; that the parties to the agreement entered into bargaining discussions, which did not apply to the clericals, from March 31 through April 16, 1976; that at 7 a.m. on April 1, 1976, the truckdrivers and platform men struck and commenced picketing Respon- dent's facility located at Carll's Path; and that the picketing continued on a 24-hour basis until noon on April 5, 1976, when the parties entered into an interim agreement under which terms the picketing ceased and the employees returned to work; that the work continued under the agreement until the weekend of April 16, 1976; and that on the following Monday, April 19, 1976, the strike and the picketing recommenced on a 24-hour basis and continues to the present time.2 2 The facts set forth above are undisputed and are not in conflict in the record. I Upon the request of counsel for the General Counsel. I take B. Administrative Notice of Respondent's Union Animus and Its Efforts To Rid Itself of Union Adherents and Sympathizers It was established in the prior proceeding reported at 227 NLRB 921 (1977), that Respondent constructively dis- charged employee Doris Bonadonna on August 22, 41975, in violation of the Act. It was further established therein that prior to her discharge, Bonadonna was called into the office by Joseph Pinter, Sr., and in the presence of Robert Pinter, a heated discussion about Bonadonna's work performance ensued. A pertinent portion of that January 1976 conversation with Catherine Turke in the prior proceeding was found by the Administrative Law Judge to have been as follows (Id at 936): 3 Robert Pinter asked if she did not agree that her action constituted "harassment" of management. Bona- donna said that she did not, telling the Pinters that she might understand their attitude if she had avoided working on the day in question, but "I worked hard. And I'm a damn good worker." Bonadonna began to cry because she was upset and nervous. Pinter, Sr., told her that her work was not in question and that Brown had always told him that she was a good worker. Pinter, Sr., then asked if he had ever spied on her. She said that she did not know of any spying. He then asked if he had spied on any of the other girls. When she indicated that she did not understand, he asked if he had ever stood in the hallway and spied on the girls. She said she did not know. Pinter, Sr., then inquired if he had ever harassed her. She said yes. He asked "When?," and as she was about to tell him, Robert said, "All you girls do is lie. You are all liars." He asked if she wanted to see the "affidavits from the hearing" and kept saying that he wanted her to read the "affidavits," and she kept replying that she knew nothing about it. He referred again to the "lies" that were voiced at the hearing and said he was sure her friends had told her about the hearing. She stated that she had been told and then said, "Do you want to know if I signed a card for the union? I did" (adding the last phrase before Pinter managed to say, as he did, that he did not want to know). Pinter then mentioned Linda Schulz being late, and that he hadn't said anything about her lateness while "this was going on" (except I day when he could not restrain himself), but that the next time she was late he would fire her. Pinter, Sr., then referred to the girls spending too much time in the ladies room, and asked if she did not think this constituted harassment, and this question was explored. At some point, Robert Pinter said that the girls coming back late from lunch constituted "harassment," and stated, "I did not say anything, I was real nice while this whole thing was going on. I have it all written down. Now that's over, you just wait and see the changes with me." At another point, Pinter, Sr., asked if Brown had asked her to do administrative notice of Doris Bonadonna's testimony as credited by the Administrative Law Judge in the prior hearing. 578 PINTER BROS., INC. "any filing in the kitchen" when she had the chance; Bonadonna said that she did not understand the question. In the above proceedings Diane Lufker testified that she overheard office manager Jacoby tell controller Brown, "I told the old man not to fire those two girls, but he said no, because he doesn't want the Union in." The Administrative Law Judge therein not only credited Lufker's testimony in this regard but went on to state that it constituted the most direct evidence of Respondent's discriminatory motivation in unlawfully discharging two of its employees. In discuss- ing why Lufker did not ask for work, Joseph Pinter said, "Why didn't you open your mouth? You always seem to open it at the wrong time. " and that she had a "big mouth" at times. Counsel for the General Counsel did not submit a brief in this proceeding, and he contends that the Administrative Law Judge in the prior hearing also found that Linda Schulz credibly testified and that her testimony was damaging to Respondent; that Charlotte Destefanis and Judith Basick also testified and their testimony was credited. However counsel for the General Counsel did not cite lines and pages on which such testimony was given or findings were made, and my cursory examination of the record within my limited time, partially discloses substanti- ation of such findings. Respondent in its answer has admitted that Linda Schulz, Charlotte Destefanis, Judith Basick, and Diane Lufker testified in Board hearings during the summer of 1975 and in January 1976. Since each of the said employees testified on behalf of the General Counsel and Destefanis had signed a union authorization card and engaged in union activity, it may be reasonably inferred that their testimony in the prior proceedings was not favorable to Respondent. 4 Based upon the foregoing credited evidence of record, I conclude and find that Respondent was opposed to the clerical unionization of its business; that it criticized employee Diane Lufker for testifying in a Board proceed- ing; that it made an effort to learn which employees were involved in activities on behalf of the Union; that it failed to give Destefanis and Schulz Christmas bonuses as it ordinarily would have; that it failed to give Destefanis a wage increase in January 1976, while a wage increase was given to other clerical employees; that it laid off Destefa- nis, Schulz, Lufker, and Basick on April 2, 1976, and that it offered more onerous employment to Destefanis and Schulz, on a different (night) shift, so as to frustrate them and cause them to voluntarily terminate their employment with Respondent. I further find that such conduct by Respondent had an interfering, restraining, and coercive effect upon the exercise of its employees' protected rights, in violation of Section 8(a)(1) of the Act. 4 Pursuant to counsel for the General Counsel's request, I hereby take administrative notice of the Board's Decision reported at 227 NLRB 921. supra, in which the Administrative Law Judge found an antiunion climate at Deer Park Yard. manifested by Respondent unlawfully discharging C. The Union Activity of the Four Alleged Discriminatees and Subsequent Actions Taken by Respondent Charlotte Destefanis was employed by the Respondent in July 1966 as a clerk on the 8 a.m. to 5 p.m. shift, Monday through Friday for $70 or $80 per week. A few months later she was promoted to interline clerk with a $5 wage increase. In November 1976 she was promoted to secretary to the general manager with a $5 wage increase. Around October or November 1974 Destefanis engaged in activity on behalf of Local Union No. 807 in organizing the clerical staff of Respondent. She participated in organizing meetings, signed a union authorization card and participat- ed in a Board-held election as an observer. Subsequent to such activity and the election, Destefanis said she last received the customary company wage increase in January 1974, although she was told by supervisor Catherine Turke that she (Turke) and other employees received a raise in January 1975. Thereafter Destefanis said she did not receive a bonus or a raise during the remainder of her employment tenure with Respondent. Destefanis further testified that one morning in July 1975 the following transpired: Catherine Turke the supervisor of the girls came up to me and said, "Has Bob Pinter spoken to you." I said, "No." She said, "You're supposed to report upstairs to Bob Dolerler you will be working for him." I said, "Just like that?" She said, "Yes, clean off your desk and go upstairs." I cleaned up whatever I could and I went upstairs and told Bob Dolerler I was reporting to work. I found out that Mr. Jacoby was not aware of the fact I was not going to be with him that day when he came in that morning. What type of work did you do upon returning to Mr. Dolerler? I was an on hand clerk. I handle phone calls and got disposition refused or undelivered freight, typed on hand notices. I also was doing secretarial work for the General Claims Manager that including typing of letters, filing of his correspondence. I had to process claims and pull all the paper work and handle the filing for that job. In August 1975 Destefanis was called as a witness and testified on behalf of the General Counsel in a Board proceeding. On April 1, 1976, Respondent's truckdrivers and warehousemen went on strike and commenced picketing Respondent's Deer Park facility. At that time Destefanis said supervisor Catherine Turke told her that Pinter had asked her "What do we have here a couple of strike breakers," referring to herself (Destefanis) and employee Judith Basick. On April 2, 1976, she was assigned to assist Clair Door to catch up the backlog of billing employees, by changing its time and attendance policy in September 1975 to deprive Diane Lufker of sufficient work to perform, by refusing to admit prospective voters to the polling place. and by criticizing Lufker for having testified on behalf of the General Counsel in Board proceedings. 579 DECISIONS OF NATIONAL LABOR RELATIONS BOARD accounts, even though she had quite a bit of her own work to do. At 5 p.m. on the same afternoon Diane Lufker approached her and advised her that she (Lufker) had been laid off. At 5:15 p.m., Bill Hunt, a rate clerk, came to her desk, called Judith over to her desk, and advised them that he was directed to advise them that they were not needed because there was no work due to the strike, and that they were not to return to work until they were called. Aside from herself, she learned that Diane Lufker, Linda Schulz, and Judith (Judy) Basick were laid off on that same afternoon. Destefanis testified that at that time (April 2, 1976) Respondent had the following clerical employees: Delores Fletcher, Judy Basick, Linda Schulz, Gayle Tornatore, Santa Stansell, less seniority than Destefanis; Catherine Turke, Supervisor; John Buckley, Joan Barrie, Pinter's secretary; Clair Door, Diane Levco, Doris Miller, Pat (last name unknown). On the following Tuesday, April 6, 1976, Destefanis said she received a telephone call from Joan Barrie, Pinter's secretary, who advised her that she could return to work that Tuesday on the II p.m. shift. She said she had never been asked to work the night shift before so she asked to speak to Joseph Pinter but was advised that he was in conference and she would have to come into the Compa- ny's office. She then asked to speak to Bob Pinter and her conversation with him was as follows: Which Mr. Pinter did you wish to speak with at that time? Joseph Pinter, Sr. Did you go to Pinter Brothers on April 6th? Well when Mrs. Barrie told me that Mr. Pinter was in conference I said, "Well is Bob Pinter there?" She said, "Yes he is." She put Bob on the phone and I said, "Bob I would like to know who do you have working there on the day shift with less seniority than myself?" He said, "I don't have to tell you a damn thing." I said, I started to say I felt he had a responsibility to me and he said, "I am not responsible to you and I don't have to tell you anything." I said, "All right." I said as far as working, as far as working, a night shift I would have to call him back. Destefanis said she then called Judy Basick and learned that Judy too had had a similar experience. She then asked Basick if she would join her in going to see Pinter, and Basick agreed to do so. They arrived at the Respondent at 11:30 a.m. but were advised by Joe Pinter that Bob Pinter was tied up in negotiations and they would have to call him for an appointment. Destefanis said she observed all the clerical employees (including the temporary employee) working in the office but none of them were performing the duty she ordinarily performed. She and Judy left the office and went to lunch but returned later that afternoon when they were advised by Joseph Pinter that Bob Pinter would see them one at a time. Destefanis continued to testify as follows: s I credit Destefanis' essentially undisputed testimony not only because I was persuaded by her convincing demeanor on the witness stand but also, because her version is consistent with Respondent's antiunion history as I told Mr. Pinter I wanted Judy in there with me when I was in the office because on other occasions he had girls in there for such a talk he would have Bob Pinter in there plus a secretary taking down notes and I wanted a witness on my behalf. He said, "No." He would see us one at a time or not at all. I argued the point with him further and said-and finally I gave up and said, "I will do it his way." We started to go into Mr. Pinter's office Mr. Pinter, Mr. Robert Pinter, told Judy "go sit in the lobby and wait." Destefanis said she then asked Pinter, Sr., why were girls in the office with less seniority than herself still working. He said he did not know and when she asked could he find out, he said, "I could" and smiled. She told him that there was not a job out there that she could not handle and Pinter said, "That is because you have a mouth. " When she asked him what did he mean she had a mouth, he said, "Just what I saia4 you have a mouth." When she asked him to ask her supervisor, Jacoby, about her work, he said, "You had him snowed." She then asked him what did he mean because she always did her best work. Pinter said, "That is why you testified he was spying. " When she asked him what did he mean she never said anything like that, he said, "I don't mean you I mean all of you" and he refused to discuss the matter further. When she insisted on him answering her, he said, "Do I have to have you put out of here." As she left she advised Pinter that she would have to call him back to let him know about working that night at 11 p.m. Pinter said call him by 6 o'clock or don't come back at all. Pinter told Destefanis some of the work was being transferred to the night shift but he did not know what kind of work she would be performing. She later called Pinter and advised him that her husband said that she could not work at night but she was willing to work in the daytime. He said all right if we can find something on days we will give you a call. She has not received a call from Respondent to return to work. Destefanis further testified that Judy Basick returned to work on the day shift to handle claim five interline accounts which she too can do as well as other clerical work which was being performed by other employees. She could not recall Respondent ever having had a layoff. When work was slow, Respondent would have them clean off desk or clean up closets and Joseph Pinter once said in a meeting prior to the election, that rather than laying anyone off he would sooner go on a 4-day week if everybody was agreeable. Respondent's promotion policy was to promote from within. She did not know whether Linda Schulz received a raise or bonus in 1976. And she did not know that 10 people were laid off on the night crew on April 1, 1976.5 Based upon the foregoing credited evidence of record, I hereupon conclude and find that in November 1974 Charlotte Destefanis was engaged in union activity- having served as an observer in a Board-held election and found in the prior Board proceeding. and because Joseph Pinter. Sr., did not appear and testify about conversations Destenfanis held with him or in his presence. 580 PINTER BROS., INC. having testified against Respondent in Board proceeding in July and August 1975; that Respondent had knowledge of such activity on the part of Destefanis; that as a result of such activity Respondent failed to give Destefanis the Company's annual wage increase in January 1976 and the customary Christmas bonus in December 1975; that such bonus and wage increase were given to supervisor Cather- ine Turke and other employees, that Destefanis testified in Board proceeding on behalf of the General Counsel in July 1975; that in July 1975 Destefanis was precipitously assigned to a lesser responsible job under another supervi- sor, even though she had sufficient work and her salary was not reduced; that Respondent's truckdrivers and ware- housemen went on strike on April 1, 1976, and Pinter referred to Destefanis and Judy Basick as "strikebreaker"; that on April 2, 1976, Respondent precipitously laid off Charlotte Destefanis, Linda Schulz, Diane Lufker, and Judith (Judy) Basick, allegedly because of insufficient work occasioned by the strike; that on April 6, 1976, Respondent recalled Destefanis for work on the night shift and refused to recall her for the day shift, although it recalled Judith Basick for the day shift to do the work (Destefanis) previously performed; that Basick had less seniority than Destefanis; that when Destefanis asked Respondent (Joseph Pinter, Sr.,) why were clericals with less seniority than she recalled on the day shift, Respondent (Joseph Pinter, Sr.,) said, "That is because you have a big mouth"; that when Destefanis asked him what he meant, Pinter, Sr., said that is why you testified he (Pinter) was spying; that when she asked for further explanation Pinter, Sr., said, "I don't mean you I mean all of you, " and he refused further discussion on his remarks; and that although Destefanis did accept the night shift and worked 2 or 3 nights, she resigned after Respondent refused to give her the day shift, with the promise to call her for daywork should such work develop. Destefanis has not been recalled for daywork by Respondent. Linda Schulz was employed by Respondent in March 1969 as part-time clerk-typist for $60 a week for 20 hours. She became employed full-time in June of 1969 for $125 per week. She was transferred from the warehouse to the interline department in October 1975, earning $175 per week. She last received a raise in January 1976 but she did not receive a bonus or a raise in 1975. In 1976, Schulz said Catherine Turke asked her if she had received her Christmas bonus (for 1975) and she replied "no"; that Turke then said "everybody got theirs, that is, Judy Basick, but you (Linda Schulz), Charlotte Destefanis, and Diane Lufker did not get a bonus. Schulz said she too testified in a Board hearing on behalf of the General Counsel in August 1975 before she was transferred. About 5:15 p.m. on or about April 2, 1976, Schulz said she was advised by her former supervisor, Lee Brown, that Respondent was letting her go: that Joseph Pinter gave instructions to Brown to lay her off because of the strike and consequent slow work. She asked him if it was temporary or permanent and he said "It does not look 6 The parties stipulated that Catherine Turke is a supervisor for purposes of this proceeding. I I was persuaded by the straightforward and nonexaggerating manner in which Linda Schulz testified that she was telling the truth. I particularly good" He said he knew she was a good worker and she could use him for a reference. After her layoff on April 2, 1976, she received a telephone call from Joan Barrie, Joseph Pinter's secretary, asking her if she could report for work that evening at 10 p.m. She went into the office to talk to Pinter about it and noticed Judy Basick was doing her job at that time. When she entered Pinter's office, the latter called supervisor Catherine Turke. Schulz then said she noticed that Judy Basick was doing her job and Turke said she thought Judy was a better worker on the job than Schulz was because she handled the job once before. After he told her there was no daywork but only nightwork, she advised him that she had religious commitments once a week that conflicted with those hours. Pinter and Schulz, nevertheless, agreed that she would come into work at 10 and on the other two evenings she could report at 11 p.m. to 7:30 a.m. While employed Schulz typed manifests, outgoing manifests, truckers' delivery local manifests, and some onhand notices and personal letters for Dolerler. Schulz performed the work previously preformed by Destefanis and Judy Basick. She only worked 3 nights and she found she could not take it, so she went to Pinter the following morning and asked for daywork. He told her he did not have any daywork for her. At that time she observed Judy Basick and Catherine Turke 6 along with others working. Schulz said she did not know the night staff was laid off in April and she acknowledged that she has had no experi- ence with computers, key punching, or accounts receiva- ble.7 Diane Lulker was employed by Respondent on Novem- ber 7, 1971, as a file clerk, and thereafter performed several other clerical jobs (microfilming of delivery receipts and manifests, billing clerk, and accounts receivable clerk until April 2, 1976) as she advanced in salary. She received her last wage increase in July 1974 and her last Christmas bonus in December 1973. She previously testified on behalf of other employees at a Board proceeding and once on behalf of herself in another Board proceeding, regarding Respondent's change of leave policy. (She was told by supervisor Charles Brown "there was no more being late," and that if she were late, she was gone home. She was advised if she had a doctor's appointment she had to take the whole day.) Lufker further testified that she too was laid off on April I or 2, 1976, and that she learned of the layoff of Destefanis, Basick, and Schulz. At the time she was laid off she said there was no shortage or decrease in the available work which she performed. She was never offered rein- statement by Respondent. However, when she went to pick up her vacation pay 2 weeks after her discharge, and spoke with supervisor Charles Brown, she observed Doris Miller, Clair Door, and the temporary employee, Ruth, working. Ruth was doing accounts receivable, the very job that Lufker performed prior to her layoff. Among the people working that day were Joan Buckley and bookkeeper Peter noted that her testimony. in part, corroborates the testimony of Charlotte Destefanis that Catherine Turke told her "everybody" received a Christmas bonus except herself (Schulz). Charlotte Destefanis. and Diane L.ufker. 581 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cautain, both of whom were employed after her, as well as the temporary employee. Lufker 8 is 25 years of age and she completed high school. Respondent Witnesses Charles Brown was employed by Respondent as a bookkeeper in February 1969 but has been a controller since March 1970. He testified that because of an increase in business during the years 1971 to 1973, Respondent started considering the computerization of its business operation. In June 1974 it made a definite decision and ordered the equipment and purchased the program. At that time Respondent had about 35 nonsupervisory clerical personnel, and in early 1975 Respondent decided to centralize the accounting procedures. Brown explained that the transfer of Linda Schulz from the warehouse department to the interline accounts and five plan was caused by a reduction in warehouse work occasioned by computerization. He said Rose Henn was switchboard operator and she did some accounting for $190 a week. The accounting work was not needed so Respondent terminated Henn and bought in a part-time temporary employee to operate the switchboard on an as- needed basis during January and February for $100 a week. When the temporary employee left, Respondent did not replace her because there was a decline in its bills of lading. He said Respondent did not give the clerical staff a wage increase in January nor July 1975, but only to those newly hired employees who were promised the same upon their initial employment. The failure to grant such an increase was due to the economic decline in business and because of charges which had been filed with the Board. On April 1, 1976, Brown said Respondent's operations were halted as a result of a picket line at the main gate. Respondent decided to layoff the night clerical crew because there was no work from the idle trucks; and that on April 2, 1976, Respondent's managerial staff met and evaluated the clerical needs for its limited business operation. Controller Brown further testified that he recommended terminating Diane LuJker for her poor attendance and the shortage of work resulting from computerization of the operation. He said he recommended terminating Linda Schulz in interline payables, and Judy Basick in the rate department, because they were not needed as a result of computerization. When business operations were resumed, the night crew was recalled. However, on April 19, the strike resumed and he considered job performance in making additional cuts in personnel staff. He said because of Diane Lufker's absences he told her as a result of the strike he had to let her go even though she was going to be I I credit the testimony of Diane Lufker to the effect that she did not receive the wage increase or Chnstmas bonus in 1975 or 1976; that after testifying in a Board proceeding on behalf of the General Counsel in July and August 1975, she was advised by Supervisor Charles Brown that she could not be late anymore, and if she were, she would be terminated; that she had sufficient work to perform on the date (April 1 or 2, 1976) when she was laid off: that 2 weeks thereafter she observed Doris Miller and Claire Door working, and the temporary employee performing the job she did just pnor to her layoff; and that she also observed Joan Buckley and bookkeeper Peter Cautain working, although both of them were junior to her in time of employment. I credit Lufker's testimony because I was persuaded by her terminated in any event as a result of computerization. When Bob Pinter discussed it with him he said he told Bob Pinter "Well, I had been thinking about letting Diane go because her work load was down, her attendance was bad, and she just wasn't contributing on the scale that was necessary in the changeover operations." He said he thought the lack of work played a role in her attitude. In explaining how and why Respondent recalled Judy Basick as opposed to the other three dischargees, Brown said that at the time of the discharges in April he was under the impression that the computer operation was working efficiently and two girls were not needed in interline. However when he learned on Monday or Tuesday that the computer operation was not working, the need for an additional girl became obvious. After discussing the recall of Judy Basick and Linda Schulz with Catherine Turke, Gayle Tornatore, and Bob Pinter, Catherine Turke showed a preference to Judy Basick. Although Judy had worked there since October 1975 and was not familiar with the computerization, he (Brown), nevertheless, recommended Judy Basick for recall. He acknowledged that Respon- dent's layoffs and recalls were based upon seniority. Brown conceded that Linda Schulz had the most recent experience with the computer and was a superior typist. But he felt it was better to put Judy Basick on the day interline payables and put Linda Schulz on the typing job at night, and that is why Linda Schulz was recalled for nightwork. The need for night people was increasing until the strike, when there was no work for the night crew, and that is why the night crew was laid off. During the strike, he and the programmer investigated the computer operation for flaws. However, since the night operation ceased they continued the investigation and testing during the day. Brown admitted that he only told Diane Lufker she was discharged on account of the strike, while in fact he had other reasons such as the decline in her work performance and absenteeism, about which he admittedly did not tell her. The night clericals were laid off on April 1. They were recalled on April 6 and they were laid off again on April 19 until the present time. Respondent's business is currently being operated by management: Joseph Pinter, Sr., Robert Pinter, Joseph Pinter, Jr., Franklin Pinter, Ernie West, maintenance director, Donald Hotehinson, foreman of the shop, Stanley Remenchus, who is on a part-time basis as a maintenance man, and Joseph Franklin, a supervisor. Brown said Judy Basick was laid off on April 2 with the other three dischargees but she was recalled on or about April 7, until laid off again on May 21. Brown further testified that Cautain was hired with the ultimate objective of taking over the job performed by Doris Miller. 9 sincere demeanor on the witness stand, by the fact that parts of her testimony are supported by the documentary evidence (C. P. Exh. I) herein, and by the fact that her testimony is consistent with the tenor of all the credited evidence of record and with the antiunion attitude of Respondent as found in the prior Board proceeding. 9 I credit a substantial portion of controller Brown's testimony with respect to a period of economic decline in Respondent's business and Respondent's efforts to computerize its business operation. However, I do not credit other aspects of his testimony with reference to Respondent's reasons for laying off Destefanis. Schulz, Lufker, and Basick. and its failure to recall Destefanis, Schulz, and Lufker to perform the same or similar work 582 PINTER BROS.. INC. Robert Pinter, president and chief operating officer of Respondent testified that in considering wage increases or salary, Respondent considered work performance, job responsibility, and longevity of the employee, after consul- tation with the employee's supervisor. He said that there was no periodic across-the-board wage increase in January or July 1975 because that was probably the worst year for all trucking companies. Respondent's bill accounts were down 10 percent, revenue was down a little, except for Respondent's raising rates. Robert Pinter further testified that Respondent, on two occasions, held breakfast for its employees for the purpose of affording an opportunity for all employees to know each other and receive information from Respondent, which would help to coordinate the Respondent's business operation properly; and that the employees' participation therein was considered in determining whether he or she would receive a bonus. He said Linda Schulz did not attend these functions and she had a very poor work and time attendance record. Therefore, Respondent decided not to give Schulz a bonus. With respect to Diane Lufker, he said she did not attend the company affairs and had a poor attendance record, so she was not given a bonus. He said that, although Judy Basick did not attend these functions, her attendance and participation was not as poor as Linda Schulz and Diane Lufker, and she received a bonus. Robert Pinter essentially corroborated the testimony of Brown about the business increasing, etc. He said not only did he approve the layoffs but he thought that there should have been more layoffs. He stated that there was no difference in pay for nightwork. When Destefanis, Schulz, and Lufker were called to testify at the National Labor Relations Board proceeding, their records were simply marked "absent" without explanation. His father, Joseph Pinter, Sr., considered attendance at company functions very significant but he did not. Periodic general raises were based upon what the Teamsters were getting (as a guide) every 6 months. However, Pinter said that as of January 1976 the practice of following the Teamsters wage increase was not followed by Respondent. Although some employees received raises in January of 1976, Destefanis did not because of her job switch to a lower job at the same salary, and he (Robert Pinter) thought she was earning too much in that job capacity to receive a raise.' 0 Analysis and Conclusions The answers to the issues presented for decision in this proceeding appear to depend in great measure upon whose testimonial version is believed. The Union, Charlotte Destefanis, and Linda Schulz contend that Respondent on the same work shift. I discredit the latter aspect of controller Brown's testimony because I particularly observed how uneasy he appeared on cross- examination when asked about Respondent's reasons for transferring Destefanis and Schulz. his reasons for laying off all four of the dischargees. and his failure to recall Destefanis. Schulz. and Lufker for work on the daytime shift. His responses sounded rehearsed and highly technical, and it was unpersuasive. 10 Essentially, I credit the testimony of Robert Pinter with respect to Respondent's practice of giving a Christmas bonus and biannual wage increase, and how Respondent was computerizing its business office discriminatorily failed to give Charlotte Destefanis, Linda Schulz, and Diana Lufker their annual Christmas bonus in 1975, and that it failed to give Destefanis her biannual wage increase in January 1976, because of their activity on behalf of the Union (testifying in Board proceedings in July and August 1975). Respondent contends that the wage increases and bonuses were not given in an across-the- board fashion in 1975-76 because of economic decline in its business and because Destefanis, Schulz, and Lufker did not attend occasional company social functions. The Union, Destefanis, Schulz, and Lufker also contend that Respondent, for the same above-stated discriminatory reasons, thereafter laid off Destefanis, Schulz, Lufker, and Judith Basick on April 2, 1976, and has since that time failed and refused to reinstate Destefanis, Schulz, and Lufker to their positions or positions similar thereto. In this regard, counsel for the General Counsel more emphatically contends that Linda Schulz and Charlotte Destefanis' testimony at the Board hearings in July and August were most damaging to the interest of Respondent. Respondent, on the contrary, contends that Destefanis was laid off because there was no work for her to do as a result of the strike and picketing commenced on April 1, 1975; and that Respondent did recall Judith Basick for work on the day shift on April 8, 1975. The above-named three Charging Parties further contend that Respondent did recall Charlotte Destefanis and Linda Schulz on April 6, 1975, for more onerous work on a more onerous (night shift as distinguished from the day shift which they had worked) basis, because they joined the Union, assisted it, filed charges against Respondent and testified adversely against it in the Board proceedings held in July and August 1975. However, Respondent contends that it offered Destefanis and Schulz different work on a different (night) shift because that was the residue of work available subsequent to progressive computerization on its business operations. In examining the evidence of record in reference to the several contentions by the contesting parties, it is borne in mind that Respondent has an antiunion history predating the union election held on March 26, 1975, as established in the prior Board Decision reported at 227 NLRB 921 (1977), and of which decision I take administrative notice. With that background in mind, I particularly note that Charlotte Destefanis served as an observer during the election held on March 26; that she filed unfair labor practice charges against the Respondent on April 21, 1976; that Linda Schulz filed unfair labor practice charges against Respondent on April 21, 1976, and that Destefanis and Schulz testified adversely against Respondent in a Board proceeding held on July 28, 29, and 30 and August 18, 19, 20, and 21, 1975. Respondent was found to have violated the Act in several respects and was ordered to operations. However. I do not credit certain aspects of his testimony which tend to impose unpublicized conditions on the grant of Christmas bonuses and wage increases since they were not given to some of the dischargees herein. In this regard, I discredit Pinter's testimony because I believe he was exaggerating the significance of the scope of the computerization of his business operations and his policy of giving bonuses to employees who attended company social functions, so as to justify Respondent's failure to grant bonuses and/or wage increases to the dischargees who gave detrimental testimony against Respondent in the prior Board proceeding. 583 DECISIONS OF NATIONAL LABOR RELATIONS BOARD offer reinstatement to three of its unlawfully discharged employees, and to recall two of its unlawfully laid-off employees. Perhaps the most discerning feature of significance in evaluating the evidence of record is the time proximity of the actions taken by Respondent, in comparison with the time that the unfair labor practice charges were filed and the Board hearings held, in which Destefanis, Schulz, Lufker, and Basick testified. In this regard, it is particularly observed that Charlotte Destefanis was precipitously assigned, without notice or explanation, to a job of lesser significance in July 1975; that Destefanis and Schulz were not given the customary Christmas bonus in December 1975; and that Destefanis did not receive the customary biannual wage increase in January 1976, even though some other clerical employees received such bonus and wage increase. Admittedly, when the latter two actions taken by the Respondent are considered in the absence of the other credited evidence of record, it is not unreasonable to accept Respondent's explanation that the bonus and wage increase were not given to Destefanis and Schulz as a result of economic decline in business and the failure of said dischargees to attend occasional company social functions. Moreover, it is conceivable that the timing of such actions by Respondent might very logically be attributed to mere coincidence. However, I defer a definitive evaluation of these two actions taken by Respondent until I conclude my evaluation of all the credited evidence of record. While the timing of Respondent's layoff of Destefanis, Schulz, Lufker, and Basick appears to have been an appropriate consequence of the strike and picketing on April 2, 1975, as Respondent contends, I note that the four dischargees in this case were assisting the Union as were the five dischargees in the prior proceeding (227 NLRB 921, supra). Respondent acknowledged that, in the past, its policy of layoff and recall had been based upon seniority in employment tenure. However, it is observed that Destefa- nis has been employed with Respondent since July of 1966, Schulz since June 1969, and Basick since September 1969. Notwithstanding the fact that Clair Door has only been employed with Respondent since August 1970 and Doris Miller since June 1969, they, nevertheless, were not laid off by Respondent on April 2. So it is clear that Respondent did not follow its past seniority policy in its recent layoffs of the dischargees in April. This change in layoff policy raises a strong inference that Respondent was trying to rid itself of all employees who strongly assisted or supported the Union. This inference is not eliminated by the fact that Respondent recalled Judy Basick on April 8, 1976, to work on the day shift. Although Respondent recalled Charlotte Destefanis and Linda Schulz on April 6, 1975, to perform some unspecific work on the night shift, which shift neither employee wanted to work, I do not believe the evidence of record would allow me to construe the Respondent's offer of such work as a bona fide offer of reinstatement. Even though I credit a substantial portion of Respondent's evidence of the computerization of its business, I have misgivings about some of the inconsistencies in the Respondent's evidence, such as: Respondent's deviation from its past policy of seniority for layoff and recall, the precipitous nature of the layoffs without any prior discussion or explanation to the dischargees, except for the strike, and particularly the heated conversations that Joseph Pinter, Sr., had with Charlotte Destefanis when she visited him to request daywork. These conversations clearly suggests that the Respondent was venting its antipathy of Destefanis for having testified in the prior Board proceeding. At no time had Respondent told any of the dischargees that their jobs would eventually be phased out in favor of computeriza- tion. When all these factors are considered, I am persuaded that it is reasonably inferred that Respondent's offer of reinstatement was designed to frustrate Destefanis and Schulz, and thereby cause them to reject or resign their positions. Finally, while I am willing to concede upon the Respondent's evidence that it was experiencing a slight economic decline in its business and that the computeriza- tion of its operations was reducing the need for its large clerical staff, I am not persuaded by the evidence of record that these were the only and primary reasons why Respondent laid off the four dischargees and thereafter failed to recall three of them. This is especially so when it is recalled that Respondent has never had a layoff in the past and the record does not show that it contemplated one before the strike on April 2. Although Respondent told the four dischargees they were being laid off because of lack of work, during this proceeding, Respondent for the first time said Diane Lufker's discharge was related to her absentee- ism and her slow performance on the job. Respondent did not produce any evidence that it had ever issued a warning to Lufker about her attendance or slow work performance. With respect to Linda Schulz, Respondent (Brown) acknowledged that Schulz had the most recent experience with the computer, was a good worker, and a superior typist. However, Respondent said it heeded to the preference of supervisor Catherine Turke for the recall of Judy Basick, rather than Linda Schulz, even though Basick had less seniority. When these explanations by Respondent are considered in conjunction with the total evidence of record, the proximity in time of the several actions taken by the Respondent as compared with the time occurrence of the Board hearings in which the dischargees testified, it becomes obvious that the Respondent's newly expressed complaints about the attendance and work performance of Lufker, and Supervisor Turke's selection of Basick over Schulz, are a mere pretext and not the motivating reasons for the Respondent's actions. Consequently, after a thorough review of all of the evidence of record, including the Board's decision in the prior proceeding, I am thereby persuaded that the Respondent's layoff of Charlotte Destefanis, Linda Schulz, Diane Lufker, and Judy Basick on April 2, 1975, as well as Respondent's failure to recall Destefanis, Schulz, and Lufker, were substantially motivated by their filing of unfair labor practice charges with the Board and testifying in the Board proceedings which followed. I therefore find that Respondent's conduct described in paragraphs 9 through 15 of the complaint herein interfered with, restrained, and coerced its employees in the exercise of Section 7 rights, in violation of Section 8 (aXl) of the Act; that Respondent's conduct described in paragraphs 9 584 PINTER BROS., INC. through 14 of the complaint herein is discriminatory and violative of Section 8(a)(3) of the Act; and that Respon- dent's conduct described in paragraphs 9 through 13 and 15, is discriminatory against the dischargees in violation of Section 8(4) of the Act. IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of the 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 Having found that Respondent has engaged in unfair labor practices warranting a remedial Order, I shall recommend that it cease and desist therefrom and that it take certain affirmative action to effectuate the policies of the Act. It having been found that Respondent interfered with, restrained, and coerced its employees, Charlotte Destefa- nis, Linda Schulz, Diana Lufker, and Judith Basick in the exercise of their protective Section 7 rights, in violation of Section 8(a)(1) of the Act; that Respondent discriminatori- ly failed to give employees Charlotte Destefanis and Linda Schulz a Christmas bonus in December 1975; that it discriminatorily failed to give Char!otte Destefanis a wage increase in January 1976; that on April 2, 1976, Respon- dent discriminatorily laid off Charlotte Destefanis, Linda Schulz, Diane Lufker, and Judith Basick, and has since that time failed and refused to recall or offer reinstatement to Charlotte Destefanis, Linda Schulz, and Diane Lufker; that on or about April 8, 1976, Respondent discriminatori- ly offered reemployment to employees Charlotte Destefa- nis and Linda Schulz on a different and more onerous work shift in violation of Section 8(a)(3) of the Act; and that Respondent discriminatorily offered reemployment to Charlotte Destefanis and Linda Schulz on a different and more onerous work shift in violation of Section 8(a)(4) of the Act, all because the dischargees, Destefanis, Schulz, Lufker, and Basick either filed charges and/or gave testimony under the Act. The recommended Order will provide that Respondent recall or offer to recall Charlotte Destefanis, Linda Schulz, and Diane Lufker to its employ as of the date of April 2, 1975, offer them reinstatement to their jobs, and make them whole for any loss of earnings within the meaning and in accord with the Board's decision in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962), except as specifically modified by the wording of such recom- mended Order. Upon the basis of the above findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW I. Respondent Pinter Bros., Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Truck Driver's Local No. 807, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is and has been at all times material herein, a labor organization within the meaning of the Act. 3. By failing to give employees Charlotte Destefanis and Linda Schulz a Christmas bonus in December 1975 and by failing to give Charlotte Destefanis a wage increase of January 1976 because they either filed charges and/or testified under the Act, Respondent interfered with, restrained, and coerced its employees in the exercise of rights protected by Section 7, in violation of Section 8(a)(1) of the Act. 4. By laying off Charlotte Destefanis, Linda Schulz, Diane Lufker, and Judith Basick on April 2, 1975, Respondent discriminated with respect to employees hire and tenure of employment in violation of Section 8(a)(3) and (I) of the Act. 5. By offering reemployment to employees Charlotte Destefanis and Linda Schulz on April 8, 1975, on a different and a more onerous work shift, Respondent violated Section 8(a)(3) and (1) of the Act. 6. By offering reemployment to Charlotte Destenfanis and Linda Schulz on a different and more onerous work shift because they either filed charges and/or gave testimony under the Act, Respondent has violated Section 8(a)(4) of the Act. [Recommended Order omitted from publication.] 585