Penn Jersey Paper Co.

464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Penn Jersey Paper Co . and Thomas Charles O'Neill. Case 4-CA-12854 21 May 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On '21 March.. 1983 Administrative Law Judge Nancy M. Sherman issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General ;Counsel filed an answering brief. The Board has considered the decision and the record in light of the exceptions and'briefs and has decided to affirm the judge's rulings, findings, i and conclusions and to adopt the recommended Order. ORDER The. National Labor Relations Board. adopts the recommended Order of the administrative law judge and orders that the Respondent, Penn Jersey Paper Co., Philadelphia, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the Order. MEMBER HUNTER, concurring. I agree with my colleagues" finding that the Re- spondent violated Section 8(a)(3) and (1) of-the Act by terminating Thomas Charles O'Neill for the rea- sons stated by the judge. I further agree with the conclusion that the Respondent violated Section 8(a)(3) and (1) of the Act.by changing the job duties of Harry Cockerill and O'Neill, but only for the following reasons. - Almost immediately after learning that Cockerill had given a letter to the shop steward stating his intention to seek the assistance of the Federal Gov- ernment in his efforts to obtain union representa- tion, the Respondent's president, Thomas R. Furia Sr., told Cockerill and O'Neill, both of whom were nonunit employees, to limit their job duties to sweeping, i.e., nonunit work. i About 20 minutes later, Furia stated that they would be dismissed. These events took place more than 5 and almost 2 years, respectively, after Cockerill and O'Neill i The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings [-Previously, in addition to sweeping duties, Cockerill had performed several duties that also were performed by unit members, e g , loading and unloading trucks, stocking shelves, and jockeying trucks O'Neill, in addition to performing sweeping duties, had worked as a checker , a clas- sification covered by the collective-bargaining agreement between Local 107 and the Respondent began performing unit work and seeking member- ship in Local 107. I find that the General Counsel made 'a prima facie showing that the Respondent changed the job duties of Cockerill and O'Neill for unlawful dis- criminatory , reasons, i.e., because Cockerill exer- cised his Section 7 right to ask Local 107 to admit him to membership and, to obtain his coverage under the collective-bargaining agreement between Local 107 and the Respondent. Thus, as noted above, Furia was aware of Cockerill's efforts to gain union representation and of his stated intention to seek Government assistance in doing so. Fur- ther, the Respondent's actions were _ taken on the same-day that Furia learned of Cockerill's letter. Finally, Furia's animus towards Cockerill's and O'Neill's efforts are- clear from his threat to dis- charge them, made almost immediately after he learned of Cockerill's letter to Local. 107. I also find that the Respondent failed to demon- strate that it would have taken the same action against Cockerill and O'Neill in the absence of their protected activities. Thus, regarding O'Neill, the judge discredited the Respondent's evidence that the. checker's job was eliminated on the rec- ommendation of the president of the Respondent's principal customer. The Respondent also contend- ed that its actions were based on its desire to avoid including in the unit a position limited to checking duties because the senior warehouseman/driver could bid for such a relatively easy job. I agree with the judge, however, that this concern cannot justify the elimination of O'Neill's checking duties because the change could not affect the Respond- ent's contractual obligations regarding bidding. As to Cockerill, the Respondent's contention that it desired to avoid claims by Local 107 that Cockerill was encroaching on unit work is not supported by the evidence. Thus, for almost 4 years Furia was aware of Cockerill's performance of unit work and his previous attempts to obtain representation by Local 107, but the Respondent did not change Cockerill's duties or threaten to discharge him until it became aware of his intention, as stated in his letter to Local 107, to seek the aid of the Federal Government in his efforts to obtain union represen- tation. Under these circumstances, I find that the Respondent has not rebutted the General Counsel's prima facie case of discrimination against Cockerill and O'Neill with regard to their job duties.2 Accordingly, I agree with the judge's conclusion that the Respondent violated Section 8(a)(1) and- 2 Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir 1981), cert denied 455 US 989 (1982). 275 NLRB No. 64 PENN JERSEY PAPER CO (3) of the Act by restricting Cockerill and O'Neill. to sweeping duties. , , DECISION - STATEMENT OF THE CASE NANCY M. SHERMAN, Administrative Law Judge. This case was heard before me in Philadelphia, Pennsylvania, on November 10, 1982, pursuant to a charge filed on, April 15, 1982, and a complaint issued on May 27, 1982, and amended on November 10, 1982. The questions pre- sented are whether Respondent Penn Jersey Paper, Co: violated Section 8(a)(1) and (3) of the National Labor Relations Act by changing the job classifications of em- ployees Thomas Charles O'Neill and Harry Cockerill be- cause they sought membership in and representation by Teamsters Local 107 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Local 107), and by thereafter • discharging O'Neill because he sought membership in, and represen- tation by, Local 107 and Teamsters Local 115, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousmen and Helpers of America (Local 115). On the entire record, including the demeanor of the witnesses, and after due consideration of the._helpful briefs filed by Respondent and the General Counsel, I make, the following FINDINGS OF FACT 1. JURISDICTION Respondent is a Pennsylvania corporation engaged in the distribution of packing supplies from its facility locat- ed in Philadelphia, Pennsylvania, to commercial enter- prises in the supermarket industry. During the year pre- ceding the issuance of the complaint, Respondent sold, and shipped products valued in excess of $50,000 directly to points outside the Commonwealth of Pennsylvania. I find that, as Respondent admits, Respondent is engaged in commerce within-the meaning of the Act, and that as- sertion of jurisdiction over Respondent's operations will effectuate the policies,of the Act Local 107 and Local 115 are labor organizations within the meaning of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent has had a collective-bargaining relation- ship with Local. 107 since 1965. At all relevant times, their collective-bargaining agreements have covered warehousemen and truckdrivers. Most, and perhaps all, of the unit employees spend at least some of their time driving trucks. However, some employees drive only straight-bodied 'trucks, for which no special driver's li- cense is required; while others also drive tractors, for which a truckdriver's license is required. Some emplpy- ees spend at least most of their time driving trucks, and others spend' at least most of their time working in the warehouse. Most, but not all, of the unit employees work from time to time as receivers. 465 At all relevant times, unit employees have been paid substantially more than sweepers, who are not included in,the contract unit. Between January 1982 and March 1982, the period during which ^ the alleged unfair labor practices occurred, unit employees were receiving about $13 an hour and sweepers were receiving about $5.50 or $6. As to the wage rates of the employees in the bargain- ing unit, General Manger/Controller Thomas R. Furia, Jr. (Furia Jr.) testified - that Respondent was "in the wrong union"-more specifically, Respondent 'was paying the wage scale required in the area by Local 107, which ordinarily 'represents over-the-road drivers, whereas Respondent is it local distributor and its' com- petitors paid warehousemen and drivers'$8.50 an hour. B. The Employment History of Harry Cockerill and Thomas O'Neill Before the Alleged" Unfair labor Practices • Harry Cockerill began to work for Respondent in June 1975 as a sweeper. Between his hire and about June 1977,. his duties were limited to sweeping floors, tying bags which had been broken open by unit employees, taping merchandise; and getting cigarettes and coffee for the drivers. No contention is, made that any portion of this work was ever performed by unit employees or was covered by the union contract. Cockerill's immediate superior was Supervisor Carmen Marzullo, who also supervised the unit employees. About June 1977, Marzullo began to direct Cockerill to perform work which was also being performed by ware- housemen and truckdrivers at the wage rate called for by the collective-bargaining agreement-namely, loading and unloading trucks, vans, and station wagons, stocking shelves, loading racks, picking stock; waiting on custom- ers, putting skids and merchandise away, and (inferential- ly after obtaining a driver's license in 1978) jockeying trucks and taking straight-bodied trucks to drivers who had breakdowns on the road. ' However, "like some of the unit employees, he never acted as a receiver or drove a tractor. Also he never made deliveries to customers; the record fails to show whether all the unit employees did this. Initially, Cockerill spent part of his time performing unit work and part of his time doing sweeping work. In 1979, while he was thus dividing his time, he declined to accept Respondent's offer of a repair job at a wage in- crease. At some time between January and May .1980, Cockerill began to spend all his time performing unit work. By this time, sweeping work was being performed in the warehouse by Powell 'Bernhart, an independent contractor with the assistance, after August 1981, of his son` Glen, also .an independent<<contractor. i About May ' This finding is based on a composite of credible parts of the testimo- ny of Cockerill and Furia Jr Because Funa Jr spends very little time in the warehouse , and for demeanor reasons; I do not accept his testimony that Powell Bernhart, performed no sweeping duties after August 1981 Employee Thomas Charles O'Neill credibly testified that he, became a checker about May 1980, and that Powell Bernhart began to perform sweeping duties in the warehouse about the same time that O'Neill became a checker I regard as•confused, and do not accept, his testimony that Powell Bernhart began such duties in April 1981 - 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1980, Company President- Thomas R. Furia, Sr. (the father of General Manager/Controller Thomas R. Furia; Jr. (Furia) told Cockerill not to get coffee and cigarettes for the drivers any' more because Furia did not want him to leave-the warehouse.2 . In November 1979, Cockerill prevailed on Respondent to hire. Thomas Charles O'Neill, who was - Cockerill's friend, as a sweeper. About April or .May 1980, at O'Neill's request, Respondent. transferred O'Neill -to -a job as a checker. His duties as a checker were to check all outgoing merchandise to make sure that every load contained every, piece of merchandise which was on the order form. The bargaining agreement states on its face that it includes checkers, but O'Neill's wages were not increased to the contract rate. In early April 1981, O'Neill requested and was granted a transfer to a job as a receiver, a job not covered by the bargaining agree- ment. On O'Neill's' transfer, the Furias and Marzullo of- fered Cockerill, who accepted, the checker's job vacated by O'Neill.3 Cockerill worked as a checker until about early June 1981, when the warehousemen and drivers started going on `vacation. Supervisor Marzullo there- upon-assigned Cockerill to stocking shelves, putting mer- chandise away, and-loading, vans and station wagons. From.time to time after Cockerill,re'sumed the perform- ance of this work, and until about 2 weeks after O'Neill transferred back to the checker's job about late October 1981 (see infra), Company President Funa instructed Cockerill to perform "spot checking" work-that' is,. stopping an employee who was loading his truck, and checking the skid to make sure that the merchandise on the skid, accorded-with the order slips. After that, and until January 12, 1982, Cockerill performed warehouse/- driver work. - Respondent , became dissatisfied with O'Neill's per- formance as a receiver and, about October 19, 1981, hired Ron Shivler, a new employee-with experience as a receiver, to replace O'Neill on that job. After spending several days working with -Shivler and showing him what to do, O'Neill resumed his. prior job as a checker at the same wages he had earned as a receiver.4 No conten- tion , is made that O'Neill's later transfer to a sweeper's job or his separation from that job was due to any defi- ciencies as a receiver. It is undisputed that O'Neill was a sweeper at the time of his separation on March 12, 1982. For reasons which 2 My findings - as to .the kind and amount of-umt work performed by Cockerill are based almost entirely on his testimony , which I credit in view- of the absence of testimony as to this matter - from Marzullo, who was Cockenll's'imme'diate supervisor and'spent'all-his time 'working in the warehouse ' Funa Jr ;who spends only about - 5' percent of his time in the warehouse, testified that Cockerill checked merchandise while Re- spondent was taking-inventory , and loaded. and unloaded station wagons, but did not load or unload .'trucks , Funa, who spends an average of 2 hours a day iii the warehouse , testified "that Cockerill "did odds and ends 'he was a gopher for the warehousemen" 2 This finding is based on O'Neill's and Cockerill's testimony Because Funa and Marzullo were not asked about this matter, and for demeanor reasons, I do not accept.Funa Jr -'s testimony that O'Neill's job as a checker was not filled.' 4 My finding that this job was the same as his former checking job is based on his testimony . Because Funa Jr was seldom on the warehouse floor, and - for demeanor reasons, I do not accept his testimony that O'Neill's checking job'after October 1981 was that of a "rotating ,check- er" who checked only a part'of any particular truck ' will appear, the date on which he resumed working as a sweeper is a highly material issue. O'Neill and Cockerill testified that O'Neill worked as a checker until January 12, 1982, and became a sweeper on that date. Furia Jr. testified that O'Neill became a sweeper on a date be- tween early December and Christmas 1981; such testimo- ny was generally corroborated by Furia. Funa Jr. testi- fied that he instructed Marzullo, O'Neill's immediate su- pervisor at all material times , to advise O'Neill of the change in his job duties from checker to sweeper. How- ever, Respondent's witness Marzullo was not asked about this matter, and Cockerill and O'Neill testified without contradiction that it was January 13, 1982, when Marzullo instructed O'Neill to perform sweeping duties only. Funa testified that O'Neill was transferred from the checker's job to a sweeper's job because Furia decid- ed to eliminate the checker's job, and that- he reached this decision partly because such elimination had been' recommended by Daniel Smith, the president of Re- spondent's largest customer, as a cost-saving device. However, Furia further testified that Daniel Smith had advised the elimination of the checker's job every week or two, for about a year before Furia decided to take such action. 5 Furia testified 'that O'Neill was transferred to a sweeper's job because "We had no other jobs. I felt sorry for him. . . . I didn't want to lay him off at the time. It was Christmas." However, Furia Jr. testified, in effect, that O'Neill was transferred to sweeping because Respondent had an immediate need to fill a recent sweeping vacancy.6 In view of the, foregoing, and par- ticularly the absence of relevant testimony from O'Neill's immediate supervisor, Marzullo, I credit Cockerill's and O'Neill's testimony'that O'Neill did not resume sweeping until-January 12, 1982. In-so finding, I am aware that Cockerill's prehearing affidavit, and O'Neill's March 1982 prehearing affidavit, alleges that Shivler was hired after O'Neill had been re- assigned to sweeper duties (according to Cockerill's affi- davit, to perform "shipper/receiver" duties which O'Neill had allegedly been performing just before being transferred to a sweeping job), although O'Neill by his own testimony had worked.with Shivler during the first few days of his employment and his October 1981 hiring date is established by Respondent's business-records.7 Al- though Respondent makes no claim that O'Neill became a sweeper as soon as Shivler took over the receiver's job (see supra fn. 4), Respondent correctly points out that these preheanng allegations would (if true) militate against Respondent's allegation that Shivler was hired because of O'Neill's incompetence as a receiver-an alle- Assistant office: controller George Thomas testified that, on one oc- casion, he too recommended the elimination of the checker's job He tes- tified that he gave such advice about September 1981, O'Neill was trans- ferred from the receiver's job `to a checker's job in late October or early November 1981 No witness testified that Thomas' advice played a part in any decision to eliminate the checker's job 6 Funa Jr testified that sweeper Glen Bernhart went into the label room on a full-time basis in December 1981 However, the credible evi- dence shows that he performed sweeping work until January 12, 1982 (see supra fn 1, infra in 14) 7 O'Neill's May 1982 preheanng affidavit corrected this-error as to Shivler's hiring date. - PENN JERSEY PAPER CO. gation which O'Neill and Cockerill may well have thought (although wrongly) to be highly relevant to this proceeding. I note, moreover, that other portions of -O'Neill's testimony show that he was confused as to dates and related matters.8 C. Cockerill's and O'Neill's pre-1982 Efforts to Join Local 107, Become Included in Local 107 Bargaining-. Unit, and Obtain Coverage Under the Local 107 Bargaining Agreement About June 1977, Cockerill approached Local 107 Steward Gerald Smith and Company President Furia about getting-into Local 107. Furia told Cockerill that if he joined Local 107 he would have to drive a truck and he had no driver's license. Cockerill obtained a driver's license about 1978. About February 1978, Cockerill had a meeting with Company President -Furia, Local 107 Steward Smith, and Local 107 Business Agent Kenny Moore, about Cockerill's getting into Local 107. Smith asked what Cockerill did in the warehouse. Cockerill said that he stocked shelves, put merchandise away, and loaded station wagons. Furia asked whose station wagons Cockerill loaded. He' said, "Yours." Furia said that he did not own any.9 Then, Furia, Smith, and Moore started to laugh. They asked Cockerill to leave the room, and said that they would get back and talk with him; but neither Furia nor Smith got in touch with Cockerill after this conversation.10 Furia credibly testi- fied that on "at the most" two or three occasions, whose dates he'was not asked to give, Smith asked Furia to in- clude Cockerill in the collective-bargaining unit. Howev- er, management never did so. In 1979 or 1980, Cockerill reached the age of 21, the age which Respondent would prefer to have-an employee attain before he is hired into the unit. As previously noted, about May 1980, O'Neill ob- tained, without receiving a raise to the rate specified by Local 107's bargaining agreement, a checker's job which under the language of that agreement was covered there- by. In June 1980, O'Neill,, Cockerill, and Local 107 Steward Smith met with Local 107 Business Representa- tive Moore at Local 107's hall. O'Neill and Cockerill de- scribed to Moore the work that they had been doing, and asked him to put them in Local 107. Moore told them to give him some time and to wait until Respond- ent's operations -were more profitable. The employees 9 Thus, he testified that he returned to checking work in November 1981, but that after working with him as a checker for-about 2 weeks, Cockerill began to do other work because " It was getting busy again It was during the summer months " (O'Neill was undisputedly tenrimated in mid-March 1982) O'Neill testified at one point that he acid Cockerill de- cided to stop trying to get into Local 107, and to go to Local 115, 2 days before the two employees began to draft a letter to Local 107 (delivered to Union Steward Gerald Smith on January 12, 1982) stating that Cock- erill would go to the "Labor Department" if he were not admitted to membership (cf infra, part II, D) Further, although it is undisputed that by January 13, 1982, O'Neill was a sweeper, O'Neill testified that he was performing checking duties when he received a written reprimand (which, however, was partly directed to a period when he was a check- er) on January 21, 1982 (see infra, fn 22) See also supra In, 1 9 However, Furia Jr corroborated Cockenll's statement that he loaded station wagons - io My findings as to these two conversations are based on Cockenll's testimony For demeanor reasons, I do not credit Funa's denial . 467 said, " What if we go to the Labor Board?" Moore said that he could not just go there and "demand Tom Furia to'hire" them, and that Moore would work something out and would' put ' the two employees in 'Local 107. About August 1980, Cbckerill and O'Neill met with Smith again. Cockerill asked if he had heard anything from Moore. Smith said no, that he would get back in touch with Cockerill as soon as he heard something. Every couple of months thereafter until November 1981, Cockerill and Furia asked Smith whether he had heard anything about the matter -from Moore. On each such occasion, Smith said that he had not seen Moore. Furia Jr. credibly testified that a checker's job is phys- ically much less strenuous than the work performed by the warehousemen and drivers; and that Respondent an- ticipated that the senior warehouseman/driver would claim the checker's job if it paid the same as his present job. About the same time that O'Neill became a checker, Local 107 Shop Steward Smith and Local 107 Business Agent Moore asked Company President Furia to put checkers into the bargaining unit. Furia replied that if Local 107 insisted on including checkers in the bargain- ing unit, he was going to abolish the job of checkers. Local 107 never thereafter brought the subject up again. In November 1981, Smith told Cockerill that Smith and Moore could do nothing for him, and advised him to quit because there was "no future" for him in Respond- ent's operations. D. The January 1982 Letter,- the Allegedly Unlawful Changes in Cockerill's and O'Neill's Duties In January 1982, O'Neill and Cockerill discussed taking further action to join Local 107. They decided be- tween themselves that a letter signed by Cockerill, and thereafter a' letter signed by O'Neill, would be sent to Local 107 stating that if the signatory employee was not put in Local 107 he was going to the "Labor Board," which both employees thought was the same as or part of the United States Department of Labor. I i On January 8, Cockerill and O'Neill had a discussion, in the presence -of Cockerill's sister, about what was to be put into the letter to be signed by Cockerill. She then physically pre- pared, and showed to Cockerill but not O'Neill, a hand- written draft of a letter which she thought combined what the two men were saying. Then, she typed the fol- lowing letter to Local 107 Business Agent Moore: Due to the fact that at our last meeting in June' 1980 with the company I was told to get a haircut and shave before ,I could join the union, I did so. Since then -nothing has been resolved as to my join- ing the union. I feel as though I am a good worker and my appearance. should not' interfere with my being: able to get :into the union. I have been very patient in waiting, for* this problem to be settled by the union. - , I approached the Shop-[Steward]' in November of 1981 and he told me that there is no future here for i i O'Neill credibly testified that he "figured one at a time was better than two at a time" because Local 107 had said that it wanted to wait until Respondent was making more money ' 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD me and that I should quit I do not understand the reason for this statement? I am left with no other alternative but to go to the U.S. Department of Labor, and, find out what are my rights If the company never intended to take me into the union, I should have been fore- warned and not put off for over a year and a half. I ,think this is discrimination as I have been doing the same job as my fellow. workers for the past- six years and.they are still getting union wage and I am not. Since this time, five men-have been put into the union and they were-hired after me. I would appre- ciate an explanation as to, why I have not been taken into the union after six years of employment. Respectfully, Employee of Penn Jersey Co. Harry Cockerill After this letter was typed -and before delivering it, Cockerill showed it to.O'Neill. On the morning of Janu- ary 12, Cockerill again showed O'Neill the letter,' said that Cockenll was going to''hand it to Smith that morn- ing, and further said that Cockerill hoped' that Smith would talk to Cockerill- and O'Neill and'put them in Local 107 Before Cockerill had to' go to the ""Labor Board "12 Later that morning, Cockerill gave Smith the letter. After reading it, Smith showed it to Furia, who was in the warehouse, and said that Cockerill had given it to, Smith. After, reading the letter, Furia walked over to Cockerill, "who was putting merchandise away, and asked what he was doing. Cockerill said, "Union work, ,putting stock away, what I do everyday." Furia asked who had told Cockerill to do this. He said Marzullo. Furia then went into Marzullo's office, but Marzullo'-was not- there.. Furia left Marzullo's office 'and approached O'Neill, who was performing checker's work. Furia told O'Neill, "All I want you to" do is sweep, tie, and' tape." Then, Furia approached Cockerill, told him-not-to put away merchandise any more,'and said that thereafter he was going to sweep. floors, tie bags, and tape up bundles and boxes. About 20 minutes later, Furia and Smith came "down from. the office". (inferentially, Furia's` office, which is on the floor above the warehouse) and yelled for Cockenll. When he approached them, Smith 'said, • "You dust can't' hand me this letter. You have to send one to Tom Furia and Kenny Moore." Cockerill said that he was going there at lunchtime. Furia asked wheth- er Cockerill had sent the letters yet. Cockerill said no. Furia said, "As of Friday, morning you and Tom-O'Neill are going to be dismissed." Smith said, "You and Tom O'Neill do, what youse got to do and me and Mr. Furia iz My findings regarding-O'Neill's activities in connection with this letter are based on credible parts of his and Harry Cockenll'sItestimony Cockenll's sister was'not called as a'wttiiess,`and Respondent did not have as'a practical matter any way to rebut the testimony ' about O'Neill's activity. Because-there is no evidence that Cockerill or O'Neill believed that Respondent knew at any material time about any such,activity by O'Neill, I do not regard as reflecting on these employees' veracity gener- ally the failure of their preheanng affidavits to mention O'Neill's role in connection with the letter As discussed infra, part II,F,1, whether O'Neill in fact did anything in connection with the letter does not affect the result of this case will do what we have to do." Smith and Furia then walked away. At an undisclosed hour that day, Furia .told Marzullo to have Cockerill and O'Neill perform only sweeping work (see infra fn. 13). On the following day, Marzullo called Cockerill and O'Neill into Marzul- lo's office and told them that he had been informed that, thereafter, all they were supposed-to do was to sweep, tie, -and tape.' 3' After this conversation, Cockerill and O'Neill per- formed sweeping functions only. Respondent did not cut their pay or change their benefits. Nobody from manage- ment ever told O'Neill that his reassignment to sweeping .duties was due to poor work performance or prior late- ness. Cockerill credibly testified, that, in an average week, he was unable to sweep the entire warehouse. O'Neill, testified that after he was reassigned to sweeping, he had his share of work and "more than-likely" it kept him busy all day. My findings as to the events on January 12 are based on a composite of credible portions of the testimony of Cockerill, O'Neill, and the-Furias. My findings that Furia spoke to Cockerill both before and after his visit to Mar- zullo's empty office is based on the testimony of O'Neill, who as to,this matter appeared to have a memory superi- or. to Cockerill's. My rejection of Furia's testimony that he gave his job-assignment instructions to his son or Marzullo rather than directly is based on his son's testi- mony that such instructions were given to Marzullo, Marzullo's failure to testify about this matter, and the un- disputed testimony that Cockerill gave Smith the letter on the morning of January 12 but Marzullo did not issue ,such instructions to the employees until January 13. My rejection of•Furia's denial that he threatened Cockerill is based on demeanor considerations and on the foregoing evidence impeaching Furia's denial that he made any January 12 remarks to Cockerill or O'Neill occasioned by Cockerill's letter . - -• Between the June - 1975 date that Cockerill began working for Respondent and the hearing on November 10, 1982, Respondent hired about five different employ- ees into the warehouse/driver collective-bargaining unit at union rates. The Furias testified that, during this period, Respondent- never reclassified Cockerill into a bargaining unit job because Respondent did not think he was capable of performing to the standard of excellence desired by Respondent the full scope of bargaining unit work. While I believe that these considerations played a part in management's continued failure to reclassify Cockerill, I infer from the probabilities of the case that Respondent was also influenced by the fact that its con- tinued' failure to reclassify him enabled it to have bar- gaining unit work performed at half the contract wage. Between Cockerill's restriction to sweeping duties on January 12, 1982, and the hearing on November 10, 1982, Respondent hired no employees to whom it ap- plied the collective-bargaining agreement, and an undis- i' This finding is based on the uncontradicted testimony of Cockenll and O'Neill Because both of them testified that Marzullo's instructions to them included O'Neill, and because Supervisor Marzullo was not asked about this matter, I infer that Furia's instructions to Marzullo included O'Neill, and do not credit the Furias' testimony otherwise PENN JERSEY PAPER CO closed number of employees to whom that agreement had been applied quit or were , discharged . After January 12, 1982, the Bernharts, who were independent contrac- tors, began to perform for an undisclosed payment the work which Cockerill had previously been doing.14 About August 1982, a man identified in the record as "Ernie" began to work in the warehouse . Cockerill cre- dibly testified that Ernie put stock away, loaded shelves, and got different merchandise for the . men loading the trucks, he testified that Cockerill did not think Ernie got union pay. Furia Jr . testified that Ernie was on the pay- roll of the Buff-Henley Corporation, a corporation oper- ating under Chapter 11 of the Bankruptcy Act, for which Respondent began to perform deliveries on an un- disclosed date in the summer of 1982. Furia Jr. further testified that when Respondent started to perform deliv- eries for Buff-Henley, • loading trucks with Buff-Henley merchandise was taking too long because Respondent's employees did not know what Buff-Henley's products were, and that Ernie had been sent to Respondent's warehouse ' to "point , out the merchandise." Furia Jr.'s testimony in this respect does not explain why Ernie was putting stock away and loading shelves, as described in Cockerill's; uncontradicted and credible testimony. Fur- thermore, Furia Jr testified that Ernie had been pointing out Buff-Henley's merchandise for more than 2 months, which seems like a rather long time for Respondent's employees to remain so unacquainted with Buff-Henley's merchandise that Buff-Henley was willing to pay an em- ployee to point out merchandise notwithstanding Buff- Henley's financial difficulties; and Respondent did not produce its payroll records for the period during which Ernie was admittedly working in its warehouse . In view of the foregoing considerations, and for demeanor rea- sons, I do not credit Furia Jr.'s testimony that Ernie was not on Respondent's payroll . Rather, I infer from Cock- erill's credible testimony that Ernie was on Respondent's payroll (probably at less than unit wages) and was per- forming work which Cockerill had been performing before his January 12, 1982 - assignment to sweeping work. After O'Neill's January 12, 1982 transfer from check- er's work to sweeping work, Respondent employed no checkers as such . Rather, Respondent imposed a require- ment that before any driver took ' any load on the road, that load had to be checked by a warehouseman , another driver, or Supervisors Marzullo or Dominick , to make sure that it included all the merchandise listed on the order form. 15 All these drivers and warehousemen were included in the unit and were paid the contract rate. 14 This finding is based on Cockenll's testimony Company witness Marzullo was not asked about this matter, although he is the supervisor who gives the work assignments to the unit employees and spends all his time working in the warehouse For demeanor reasons,,because Marzullo was not asked about this matter, and because Cockerill had a much better opportunity than the Furias to observe what in fact took place in the warehouse, I do not credit the Funas' testimony that the Bernharts' sole activity after December 1981 was the performance in the labeling room, which is above the warehouse level and next to the office , of picking orders for labels 15 My findings in this sentence are based on Cockenll 's and O'Neill's testimony In view of Respondent 's failure to ask Marzullo about this matter, the probabilities of the case , and demeanor considerations, I do 469 E. The Allegedly Unlawful Discharge of Thomas O Neill By letter to Cockerill dated January 19, 1982, Moore stated, inter alia, "As I have informed you on prior occa- sions, due- to the fact that you were hired and are cur- rently employed as a `sweeper' . . . your employment is not subject to the terms and provisions of the collective bargaining agreement." On March 3 , .Cockerill and O'Neill went to Local , 115's office and- showed Moore's letter to Local 115 organizers Joe Yeoman, James Oliver, and Rich Hart. The employees told the, union representa- tives that these two employees had been , unsuccessfully attempting to get Local 107 to represent them , and asked whether Local 115 would take them . The union repre- sentatives asked whether the two employees would sign Local 115 authorization cards. They did so, and gave,the cards to union organizer Yeoman . Yeoman said that if -Local 107 told them that it did not represent these two employees, he would go the Respondent , demand recog- nition, and seek an NLRB election. , On March 4 and 5 , O'Neill told fellow employees Ed Price and Mike Przybyszewski , and also -Glen Bernhart (an independent contractor who worked on the prem- ises), that O'Neill had signed an authorization card for Local 115 . Between March 4 and 12, Cockerill told Przybyszewski, Price, and employees Charlie Brown and Bob Lee, that Cockerill and O 'Neill had "got another union, 115, that said they was going to back us." This information about .Local 115 activity was passed on to other employees, and became "the talk of the shop." At all relevant times, the immediate superior -of both Cockerill and O'Neill was admitted supervisor Marzullo. He supervised' about 20 employees, 5 to 8 of whom spent most of their time in the warehouse . Marzullo spent his entire working day in the warehouse, and talked with the warehouse employees throughout the day . He regu- larly sat with the warehouse employees during their two breaks (totaling 25 minutes) a day; and discussed with them . matters in addition to work assignments . During lunch breaks, Marzullo ate with and played daily card games with employees who spent most of their working time in the warehouse . About March 10, during a lunch break pinochle game among Supervisor Marzullo and employees Lee, Brown, and Bill Coyle, Coyle remarked to Marzullo, "Did you hear that Ozzie and Harry signed up with another union?" Marzullo said, - "Oh, it is noth- ing," and the players thereafter made a joke of the matter. O'Neill and Harry Cockerill were such constant companions that the shop personnel called them "Ozzie and Harry." . My findings as to the conversations described in the two preceding paragraphs are based on Cockerill's and O'Neill's testimony. My findings as-to the March 10 con- versation involving Marzullo are based on 'the testimony. of O'Neill, who testified that during this incident, Cock- erill was talking to employee Price, who was sitting across the aisle . Employee Brown testified that O'Neill not accept the testimony of the Funas and Assistant Office Controller' George Thomas that no separate checking operation is now being per- formed • , 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD never told him that O'Neill had gone to another union However, Brown further testified that, after O'Neill's layoff, Cockerill repeatedly told Brown that Cockerill was going to try and get in another union, an alleged -statement which is difficult to reconcile with the uncon- tradicted and partly documentary evidence that Cocker- ill had already made such efforts. Marzullo testified that it! "could be possible" that he had a conversation with Coyle about Local 115, but' "it would have to be" after Local 115's representatives visited the plant, an event which occurred after O'Neill's termination. For demean- or-reasons, I credit Cockerill and O'Neill and do not accept Brown's and Marzullo's denials. Furia left Philadelphia, Pennsylvania, at 5 a.m. on Friday, March 12, on a driving trip to Florida. Later that day, Furia Jr. told Marzullo to bring O'Neill to Furia Jr.'s office at 3:30 p.m., a half hour before the end of the workday. The two arrived about 3:40 p.m. Furia _Jr. told O'Neill, in a nice manner, that Respondent did not need a second sweeper, and that because of present economic conditions, Respondent had to lay him off. Furia Jr. gave him a check for 2 weeks' pay in addition to his regular'weekly paycheck. O'Neill asked for a writ- ten statement of why he was being laid off. Furia Jr. said that.O'Neill could pick up a typed statement the follow- ing Monday. O'Neill said, -No. Could you put • it in handwriting? I want to take it now." Funa Jr. then wrote out, signed, and gave to O'Neill, a paper dated March. 12, and stating, "Effective today Thomas O'Neill has been laid off due to poor economic conditions." 'O'Neill asked whether he could collect unemployment compensation. Furia Jr. said, "Sure." O'Neill shook Furia Jr.'s hand; said, "It was nice to be working with you . . . see you later," and left. Furia Jr. credibly testi- fied that, during this -interview, O'Neill said nothing about , the Union, and, Funa Jr. said nothing about O'Neill's not working hard enough or about an alleged incident in late February (see infra part II,F,2) where Furia-saw O'Neill, sweeping with'only one arm. Later that day, O'Neill returned to Furia Jr. and point- ed out that O'Neill's paycheck for his last week had in- cluded pay through Wednesday, March 10, only. Furia Jr. thereupon wrote out-a check for March 11 and 12; he testified 'that, he made, this error because he is used to paying the office people and they are on a working schedule different from the warehouse personnel. Furia Jr., further testified that he laid O'Neill off shortly before the end of the workday on a Friday to avoid "commo- tion with rest of the work force. So that when they come•back'Monday, they don't even know it happened." On the morning of March 17, Local 115 organizers Oliver and Hart went to Respondent's plant and asked for President Furia. Respondent's receptionist summoned Marzullo, who came to the reception area and intro- duced himself.= Oliver gave his business card to Marzullo and asked to see President Furia. Marzullo said that' Furia was on vacation. Oliver said," "What about the vice president?" Marzullo said that "his two partners" came in almost every afternoon. Oliver said that Local 115 represented "two gentlemen" and wanted recogni- tion-, and gave Marzullo a letter which requested recog- nition as the representative of O'Neill and Cockerill, who were mentioned-by name. Marzullo said that he could do nothing, that he had to get hold of Furia, and that Re- spondent would get back to Local 115 right away. i 6 A little later that day, Marzullo gave Oliver's business card and Local 115's letter to Furia Jr. who had not been in the shop when the Local 115 representatives called. When Furia telephoned from Florida _on March 24 to check up on the business, Furia Jr told his father about Local 115's bargaining demand. Respondent never- re- plied to this demand. On March 26, Local 115 filed with the Board's Regional -Office a representation petition seeking a unit of "All maintenance and cleaning employ- ees not included in any other bargaining unit." The peti- tion alleged that two employees were in this unit. In March 1982, after O'Neill's March 12 separation and (in- ferentially) Local 115's petition, Local 115 learned for the first time about O'Neill's termination. Following O'Neill's termination, Cockerill continued to do sweeping. In addition, Furia's son-in-law, Tony Uliano; came in to sweep about 3 nights a week and on weekends 17. In April 1982, Respondent obtained an in- dependent contractor, Daniel Jupin, to perform Cocker- ill's sweeping duties for a few days when an injury dis- abled Cockerill from work. In October 1982, Respondent recalled O'Neill to perform Cockerill's sweeping job while Cockerill was absent owing to a death 'in his family. O'Neill worked for 1 day, and then telephoned Respondent that he had obtained a job elsewhere. Is Re- spondent thereupon recalled Jupin to fill in for Cockerill. Respondent has not hired anyone to replace O'Neill as a sweeper. In April 1982, when Respondent's unit employ- ees received a wage increase, Cockerill received the same percentage increase. F.' Analysis and Conclusions 1. The change in Cockerill's-and O'Neill's duties The credible evidence shows that until January 12, 1982, when Local 107 Steward Smith gave Company President Furia Cockerill's letter to Local 107 Business Agent Moore, Supervisor Marzullo had for several years been assigning Cockerill to duties which were part of the duties performed by warehousemen/drivers in Local 107's contractual bargaining unit and being paid as such, 16 My findings as to this 'visit are based on Oliver's and Marzullo's tes- timony Cockerill, who was not present during this conversation, stated in his preheating affidavit that O'Neill (whose termination preceded this conversation) had told him that it was Yeoman who had come to Re- spondent's premises and that Yeoman had talked to Furia Jr I see no basis for Respondent's contention that this portion of Cockerill's affidavit reflects on his credibility 17 This finding is based on Cockerill's testimony Cockerill, who'lives near Respondent's plant, based such testimony partly on personal obser- vation, partly on the fact that Uliano's car was.parked outside the plant on weekends, and partly on the condition of Cockerill's cleaning equip- ment on Mondays as compared to its condition on Fridays Furia Jr tes- tified that Uliano came on weekends to help out I do not credit Furia Jr's denial that Uliano, who did not testify, performed sweeping work, for demeanor reasons, in view of Cockenll's credible testimony that he could not sweep the entire warehouse by himself during an average week, and the absence of evidence that sweeping work was performed during this period by anyone other than Cockerill and Uliano ie No contention is made that O'Neill was offered reinstatement as a sweeper PENN JERSEY PAPER CO and O'Neill had for several months been working as a checker, a job which the contract stated was part of, the, bargaining unit. Further, the credible evidence shows that during much of 1981, Cockerill performed a certain amount of checker's work. The undisputed evidence shows that Cockerill and O'Neill were at all times being paid less than half of the wage scale called for by the bargaining agreement . Respondent's brief states that Cockerill's letter "triggered" his restriction to sweeping duties "because he claimed in that letter he should re- ceive union rates because he was doing union work." I' infer that Furia's January 12 decision to limit O'Neill, too, to sweeping duties was similarly motivated , in view of the undisputed evidence that Supervisor Marzullo during a single January 13 interview with both of them told both of them to perform sweeping duties only; the Furias' testimony that Furia had instructed Marzullo to issue such instructions to Cockerill; the credible evidence that Furia issued such instructions to O'Neill a few min- utes after seeing Cockerill's letter and immediately before issuing such instructions to Cockerill; the Furias' testimo- ny that Respondent did not want to treat checkers (like- O'Neill) as part of the contract unit ; and the absence of' evidence indicating . any reason, other, than the letter, why Furia would select that particular time to tell. O'Neill to perform sweeping duties only. To the extent that the complaint alleges that Respond- ent's January 12, 1982 change in Cockerill's and O'Neill's job duties violated Section 8(a)(1) of the Act, no finding' need be made that such action constituted discrimination within the meaning of Section 8(a)(3). In any event, I• find that these changes constituted such discrimination. (see Radio Officers v. NLRB, 347 U.S. 17, 42, 43 (1954) even though Respondent 's action did not impose any im- mediate economic loss on them . Lowery Trucking Co., 200 NLRB 672, 676-677 (1972), White Superior Division, 162 NLRB 1496, 1499 (1967), remanded 404 F.2d 1100 (6th Cir. 1968), decision on remand 174 NLRB 1172 (1969); Illinois Bell Telephone Co., 228 NLRB 942 fn. 1 (1977). In this connection, I note that the employees' prior job duties gave them at least a colorable claim to substantial wage increases (indeed, the elimination of any such possibility was one reason for Respondent's change in their duties) and that Cockerill, at -least, found his prior duties -more enjoyable than his new sweeping as - signment. See Southwestern Bell Telephone Co., 237 NLRB 110 (1978); Continental Bus System, 229 NLRB 1262, 1268-69 (1977). - Moreover, I find that entirely apart from any partici- pation by O'Neill in the decision to send the letter and in drafting it, the contents of the letter and employee/-, Union Steward Smith's possession of the letter when he showed it to Furia advised Respondent that Cockerill was engaging in activities protected'by Section 7 of the Act. The letter was addressed to Local 107's business agent (not to Respondent), and contained requests for action'by Local 107-namely, a request that Local, 107 admit Cockerill to membership and take steps to obtain a "union wage" for him. Local 107 was admittedly an or- ganization in which employees (including Cockerill's, fellow employees) were already participating and whose purpose was to deal with Respondent with respect to, 471 inter alia, rates of pay. t 9 Accordingly, Cockerill was asking employee/Union Steward Smith, and other em- ployees through their union, to let him participate in concerted and union activities in which such employees were already engaged,-and to help Cockerill in obtaining a wage increase . Such-efforts to participate in and benefit by ongoing union 'and concerted activities by a number of 'other employees constitute Sectiori 7 protected union and concerted activities even if these efforts contemplate the addition of only one more employee; to the existing collective group. Sealy Mattress Co` of Michigan, 262 NLRB 99 (1982); News-Texan, Inc. v. NLRB, 422 F.2d 381, 386 (5th Cir. 1970); see also NLRB v. J. Weingarten, Inc., 420 U.S. 251, 260-267 (1975); Eastex, Inc. v. NLRB, 437 U.S. 556, 563-565 (1978); Bel-Air Mart, 203 NLRB 339, 340-341 (1973), enfd. 497 F.2d 322 (4th Cir. 1974); Owens-Corning 'Fiberglas Corp. v. NLRB, 407 F.2d 1357, 1365 (4th Cir. 1969); Dreis & Krump Mfg., 221 NLRB 369"(1975), enfd. 544 F.2d 320 (7th Cir. 1976).20 Further-, more, although Respondent claims that it did not know or suspect O'Neill's participation in the letter, such as- serted ignorance did not privilege Respondent to dis- criminate with respect to O'Neill 's employment because Cockerill engaged in activities, in connection with the letter, which would be protected by Section 7 if he alone had engaged therein and which were calculated in the long run to produce like benefits to both Cockerill and O'Neill. See Hedison Mfg. Co., 249 NLRB 791, 794 fn. 13 (1980), enfd 643 F.2d 32 (1st Cir. 1981). In short, the credible evidence establishes that Re- spondent changed ' the job duties of Cockerill and O'Neill, and thereby engaged in an act of discrimination with respect to such employees, because Cockerill exer- cised his Section 7 protected right to ask Local 107 to admit him to membership, to include him in the bargain- ing unit, and to obtain his coverage under Local 107's bargaining agreement . Because , Cockerill and O'Neill were thereby deprived of much or all of any contractual or moral claim which they may have had to such relief, and because Cockerill regarded his new job duties as less interesting than his old ones, Respondent's conduct could have adversely affected employee rights to some extent, at least . Moreover, Furia aggravated the -naturally coer- cive tendency of such action when , in effect, he threat= ened to discharge Cockerill and O'Neill because of Cockerill's letter. Accordingly, the burden is, on Re- spondent to come forward 'with evidence of. legitimate and substantial business justifications - for its - conduct. NLRB. v. Great Dane-Trailers, •388.U.S. 26, 32-34 (1967); NLRB v. Frick Co, 397 •F.2d 956,,961-963.(3d Cir. 1968); is See the definition of the term '9ab0' r6rgaiiization" in See 2(5)-of the Act Respondent's answer concedes -that Local 107 is such an:organi- zation 20 Respondent cites 4fateta Trucking Co, 1,94 NLRB 794 (1971), Tab- ernacle Community Hospital, 233 N'LRB'1425 (1977), and National'Wax Co, 251 NLRB 1064 (1980), as allegedly holding otherwise: However; in all : these' cases, a single, employee asked his'employer for-benefits directly, and did not, as here, ask a union to add him to its membership and to induce his employer to grant him such benefits Indeed, at one point, Re- spondent's brief concedes that Cockerill's efforts to join Local 107 were protected by the Act _ t ' 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Zapex Corp., 235 NLRB 1237, 1238-40 (1978), enfd. 621 F.2d 328 (9th Cir. 1980). As to O'Neill, Respondent has failed to present any such legitimate and substantial business justifications. I have previously found to be contrary to the credible evi- dence Respondent's contention that in December 1981 it eliminated the checker's job at least partly because such action was recommended by its principal customer's president, Daniel Smith; and there is no record -basis for any contention that Smith 's advice led to the elimination of the checker's job on Respondent's January 12, 1982 inspection of Cockerill's letter to Local 107., Further, the credible evidence indicates that Respondent 's checking costs increased, if anything, after O'Neill's transfer back to sweeping; for the checking work which he had for- merly performed was divided among the unit employees at twice O'Neill's wage scale. Funa Jr. testified that Re- spondent does not want .to include in the contract unit a job limited to checking duties because Respondent does not want to enable its senior warehouseman/driver, by means of the contractual 'job-bidding procedure, to limit his-duties at-least primarily to the relatively easy check- ing work while being paid the same as employees whose work is confined to the relatively strenuous warehouse- driving work. However, Respondent has not specified, nor can I perceive, any way in which Respondent 's limi- tation of O'Neill to sweeping work could diminish any contractual obligation which Respondent may have to assign checkers' work to the senior bidder therefor in the contract unit . Accordingly, I do not regard this concern as-a legitimate and substantial business justification. As to Cockerill, Respondent contends that his reas- signment was due partly to a desire to. avoid claims by Local 107 that he was encroaching on unit work and to a belief that he was ,unable to perform the full scope of unit work. I accept the legitimacy of such considerations. Thriftco. Stores, 205 NLRB 666 (1973). However, in the circumstances of the instant case, I regard them as insub- stantial. In the first place, Furia's initial instructions to_ Cockerill and O'Neill, that they were thereafter to per- form sweeping duties only, included threats of discharge, action which would have caused these employees far more injury than required by the considerations ad- vanced by Respondent to justify the change in Cocker- ill's duties. .Moreover, Furia had known for almost 4 years that Cockerill had been performing unit work and had been requesting Local 107 to receive him into mem- bership and obtain the contractual pay rate for him. However, Respondent made no effort to confine him to nonunit work until Furia learned , from reading Cocker- ill's letter to Local 107, that he intended to seek the as- sistance of the Federal Government in achieving his pur- poses. Furthermore, by contending in counsel 's opening statement and -counsel's brief that Respondent realigned Cockerill's duties in order to resolve the grounds for his complaint, Respondent tenders an independently unlaw- ful motive for such action . Ram Construction Co., 228 NLRB 769, 769-772, 775 (1977) (transfer'of Weber), enfd. 566 F 2d 1166 (3d Cir. 1978). Further, as found infra, a few weeks later Respondent terminated O'Neill because of his and Cockerill's efforts to obtain union rep- resentation. Cf. Great Dane, supra, 388 U.S. at 34 ("if the adverse effect of the discriminatory conduct on employ- ee rights is `comparatively slight,' an antiunion motiva- tion must be proved to sustain the charge if the employ- ee has come forward with evidence of legitimate and substantial business justification for his conduct"). For the foregoing reasons, I find that Respondent vio- lated Section 8(a)(1) and (3) of the' Act by restricting Cockerill and O'Neill to sweeping duties on and after January 12, 1982. 2. O'Neill's termination Further, I agree with the General Counsel that O'Neill was terminated because of his Local' 115 activity and Cockerill's efforts to obtain membership in Local 107 and coverage under its contract-efforts which, if suc- cessful, would have increased the likelihood that O'Neill would obtain similar Local 107 protection. As previously found, on January 12, 1982, Furia transferred O'Neill (as well as Cockerill) to nonunit sweeping work in order to render futile any efforts by them to obtain such Local 107 protection and, indeed, threatened to-discharge them because of Cockerill's requests to - Local • 107 for such protection. Thereafter, on March 3, 1982, Cockerill and O'Neill signed cards authorizing Local 115 to represent them. Furia testified that he did not think either of them was worth the wages called for under the Local 107's contract. Cockerill's and O'Neill's action in getting an- other union to back them became the "talk of the shop" and became known to Supervisor Marzullo by March 10. I infer that this information reached Furia, and I do not credit the Furias' testimony otherwise .2 i On March 12, 1982, O'Neill was terminated. The foregoing evidence makes a puma facie showing that O'Neill was terminated to discourage union activity. Moreover, Respondent's explanations for its conduct are difficult to reconcile with each other and with the record evidence. Certain portions of the Furias' testimo- ny indicate that Furia decided to terminate O'Neill be- cause he was sweeping in a remarkably indolent fashion. However, O'Neill did not receive a written warning for indolent work;22 it was not mentioned to him during his termination interview or (so far as the record shows) any other occasion; both Furias testified that Furia made the termination decision (allegedly because of indolent work) 2 weeks before O'Neill was terminated; and when asked why Furia decided to wait 2 weeks (although Furia Jr. allegedly urged him to act immediately), Furia testified, "I honestly don't know." Moreover, Respondent merely advised O'Neill that he was being terminated because of poor economic conditions and gave him 2 weeks' separa- 21 See NLRB Y Walton Mfg Co, 369 U S 404, 408 (1969) (the de- meanor of a witness who has a motive to deny "may satisfy the tribunal, not only that the witness' testimony is not true, but that the truth is the opposite of his story") 22 The only written warning which O'Neill ever received was issued by Furia Jr on January 21, 1982, for tardiness on 5 days between Janu- ary 5 and 18, 1982 This warning stated that O'Neill would be sent home without pay if he were late again , and would be discharged if he were late on three more occasions There is no evidence that he was ever late again Respondent's witnesses did not testify that his March 12, 1982 sep- aration had anything to do with tardiness, and Respondent 's brief does not appear to contend that it did PENN JERSEY PAPER CO. 473 tion pay; and Respondent recalled O'Neill, notwithstand- ing his alleged laziness, to act as a substitute sweeper when _ Cockerill was on a bereavement leave.23 On the other hand, other parts of the testimony of Furia Jr., and to some extent his father, indicate that O'Neill was sepa- rated because Respondent did not need two sweepers, sweeper O'Neill was junior to sweeper Cockeril, Re- spondent lost money in January 1982, and Respondent made little money in February 1982. However, such tes- timony is difficult to reconcile with Respondent's alleged 2-week delay in implementing on March 12, 1982, its de- cision to terminate' O'Neill; its voluntary payment to him of 2 weeks' severance pay; Respondent's testimony re- garding his alleged laziness; the evidence that Respond- ent's business was better in January and February 1982 than in the corresponding months of 1981;24 the evi- dence that Respondent's sales, of which level Furia-Jr. is advised on a daily basis, were higher in March 1982 than in February 1982;25 Respondent' s-use of Furia's son-in- law to perform sweeping duties after O'Neill's separa- tion; and Respondent's failure in 1981 and at least until the November 1982 hearing to lay off truckdrivers. - -For the foregoing reasons, I find that O'Neill's termi- nation on March 12, 1982, violated Section 8(a)(1) and (3) of the Act. - " , CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 107 and Local 115 are labor organizations within the meaning of Section 2(5) of the"Act. - 3. Respondent has violated Section 8(a)(1) and (3) of the Act on and after January 12, 1982, by restricting Harry Cockerill and Thomas Charles O'Neill to sweep- ing duties. 4. Respondent has violated Section 8(a)(1) and (3) of the Act by separating O'Neill on March 12, 1982. 5. The unfair labor practices described in Conclusions of Law 3 and 4 affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that Respond- ent be required to cease and desist therefrom and from like or related conduct. Affirmatively' -'Respondent will be required to offer to reinstate Cockerill and O'Neill to the jobs they were per- forming before January 12, 1982, the date on which they were unlawfully restricted to sweeping activities. Al- ,though Respondent no longer employs checkers as such, 23 Although O'Neill was not asked to substitute for Cockerill on an earlier occasion when he was absent because of injury, Funa Jr did not attribute the arrangements made during Cockerill's sick leave to any shortcomings by O'Neill as a sweeper Rather, Funa Jr testified that he had never thought of calling in O'Neill 24 Respondent's losses in January 1982 were 30 percent lower than its losses in January 1981 Respondent's February 1982 profits, although lower than in any month since March 1981, were five times greater than its February 1981 profits 25 Respondent's March 1982 profits were double its March 1981 prof- its However, Funa Jr testified that he did not learn about March 1982 profits until sometime in April it was O'Neill's unlawful transfer from checking duties that caused Respondent thus to distribute checking duties among the warehousemen/drivers, who were still per- forming such duties at the time- of the hearing Accord- ingly, Respondent will be required to offer reinstatement to O'Neill as a checker. Similarly, because after Cocker- ill's restriction to sweeping duties the work which he had previously performed was performed by independent contractors, Ernie, and (perhaps) unit employees, Re- spondent will be required to offer to restore Cockerill to the job duties he was performing before January 12, 1982, whether or not any one employee is now perform- ing a job consisting of the same mix_ of duties Cockerill was-then performing. Radio Station K-101, 215 NLRB 602, 614 fn. 30 (1975), enfd. 538 F.2d'337 (9th Cir. 1976), cert. denied 429 U.S. 921 (1976); NLRB v. Retail Clerks Local 876, 570 F.2d 586, 593 (6th Cir. 1978), cert. denied 439 U.S. 819 (1978). I would require Respondent to offer to reinstate O'Neill as a checker, and to make him whole for any loss of pay until he received such an offer, even if I had found that Respondent acted lawfully in termi- nating him from the sweeping job to which he had been unlawfully transferred from the checking job. Super Tire Stores, 236 NLRB 877 (1978).26 In this connection, I note Respondent's contention, that O'Neill was terminat- ed at least partly because he was the ,junior" of Respond- ent's two . sweepers and -Respondent needed only one sweeper. If this was the real reason for O'Neill's termina- tion, it would not have taken place at all if he had still been a checker. Reinstatement shall be offered without prejudice- to the employees' seniority or other rights and privileges. " In addition,, Respondent will be required to make Cockerill and O'Neill whole for any loss of earnings they may have suffered by reason of the discrimination against them, in the manner prescribed in F. W. Wool- worth 'Co., 90 NLRB 289 (1950), with interest as pre- scribed in Florida Steel Corp., 231 NLRB 651 (1977).27 The' backpay due them is to be calculated without regard to any wages to which they may be entitled because of Respondent's collective-bargaining agreements or rela- tionship with -Local 107, the precise extent of such rights, if any, has not been determined in this proceed- ing. Also, Respondent will be required to remove from its files any reference to O'Neill's unlawful termina- tion,28 and to notify him in writing that evidence of that termination will not be used as a basis for future person- nel action against him. Sterling Sugars, 261 NLRB 472 (1982). In addition, Respondent will be required to post appropriate notices. 26 Because O'Neill's posttransfer earnings as a sweeper for Respondent constitute interim earnings with respect 'to the unlawful transfer, his net backpay would be the same whether or not his termination while a sweeper was unlawful 27 See generally Isis Plumbing Co, 138 NLRB 716 (1962) Although it. seems unlikely that Respondent owes Cockerill any backpay, he is includ- ed in the backpay order as a precautionary measure 28 The record affirmatively shows that Respondent's files contain no reference to the January 1982 change in their duties 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On these findings of fact and conclusions of law and on* the entire record , I issue the following recommend- e&9 ORDER The Respondent , Penn Jersey Paper Co., Philadelphia, Pennsylvania , its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Changing the duties of, laying off, or discharging any employee because of activities protected by Section 7 of the Act. . - (b) Changing the duties of any employee , discharging or laying off any, employee, or otherwise discriminating with respect to the-hire or tenure of employment or any term or condition of employment of any employee, to discourage membership in Teamsters Local 107 a/w International Brotherhood of Teamsters, 'Chauffeurs, Warehousemen and Helpers of America; Teamsters Local 115, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America or any other labor organization. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act. (a) Offer to reinstate Harry Cockerill and Thomas Charles O'Neill to the jobs which they occupied prior to January 12, 1982, without prejudice to `their seniority or other rights , and privileges, and make them whole for any loss of pay they may have suffered by reason of the discrimination against them in conformity with the, sec- tion of this-decision entitled "The Remedy." (b) Remove from its files any reference to O'Neill's unlawful termination , and notify him in writing that this has been done and that evidence of that termination will not be used as a basis for,future personnel' a_ ctions against him. (c) Preserve and, on request, make available •to the Board or its agents for examination and copying, all pay- roll records, social security 'payment records, timecards, personnel records and reports, and all other - records nec- essary to analyze the amount of backpay due' under the terms of this Order. (d) Post at .its Philadelphia, Pennsylvania facility copies of the attached notice marked "Appendix."30 29 If no exceptions are filed as provided by Sec .102 46 .of the Board's Rules and Regulations, the findings ,' conclusions, and recommended Order' shall, as provided in Sec 102 48 of the Rules; - be-adopted by the Board and all objections to them . shall .be deemed waived for all pur-' poses so If 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 Na- tional Labor Relations - Board" -shall read "Posted Pursuant to a'Judgment of the United States 'Court of,Appeals -Enforcing an•O'rder of the Nation- al Labor Relations Board " Copies of the notice, on forms provided by the Regional Director for Region 4, after being signed by the Re- spondent's authorized representative , shall be posted by the Respondent immediately upon receipt and maintained for'60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are ' not altered , defaced, or covered by any other material. " (e) Notify the Regional Director in writing within 20 days from the date of this Order, what steps the Re- spondent has taken to comply: APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to preent evidence and state their: positions, the -National Labor Relations Board found that we have violated the National Labor Relations Act, as amended , and has or- dered us to post this notice. WE WILL NOT 'change your job duties, lay you off, or discharge you because of activities protected by the Act. WE WILL NOT change your job duties, lay you off, dis- charge you, or otherwise discriminate with respect to your hire or tenure of employment or any ' term or condi- tion of employment, to discourage membership in Team- sters Local 107 a/w International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of Amer- ica; Local 115, a/w International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of Amer- ica, or any other union. • WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you under the Act. WE' WILL offer to reinstate Harry Cockerill and Thomas Charles O'Neill to the jobs which they held before their duties were unlawfully changed, without prejudice to their seniority or other rights and privileges, and make them whole, with interest , for any loss of pay resulting from their transfer and O 'Neill's later unlawful termination. . . WE WILL remove from our files any-,reference to O'Neill's -termination, and notify him in writing that this has been done and that evidence 'of his termination will not be used as a basis for future personnel action against him. - - • - - PENN•JERSEY PAPER CO. ;