Advance Window Corp

226 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Advance Window Corp and Ronnie Codett Cases 2-CA-21562 and 2-CA-21852 September 30 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On March 29 1988 Administrative Law Judge Julius Cohn issued the attached decision The Re spondent filed exceptions and a supporting brief and the General Counsel filed a brief in support of the judge s decision The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel 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 1 and conclusions 2 and modify the remedy 3 and to adopt the recommended Order In section III C 3 of his decision the judge ap plying a Wright Line analysis 4 found that the Re spondent had unlawfully discharged Ronnie Codett because the asserted reason of absenteesim had not been established In reaching this conclusion the judge relied on inter alia the Respondents failure to apply its progressive discipline policy to Codett We agree that the Respondent unlawfully dis charged Codett but we do not rely on the judge s reference to the progressive discipline policy In stead we find that the Respondent tolerated Co dett s absences and seized on them as a convenient justification for Codett s discharge only after Codett, as union steward, had aggressively disput ed Plant Manager Wojtaszek s version of an agree ment reached by Codett and Wojtaszek (the Satur day agreement) 5 That Codett s absenteeism was i The Respondent has excepted to some of the judge s credibility find rags 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 2 The Respondents motion to dismiss the consolidated complaint is denied as lacking in merit 3 We have modified the recommended remedy to include the provision that backpay be computed as prescribed in F W Woolworth Co 90 NLRB 289 (1950) 4 Wright Line 251 NLRB 1083 (1980) enfd 662 F 2d 899 (1st Cir 1981) cert denied 455 U S 989 (1982) See NLRB v Transportation Man agement Corp 462 U S 393 (1983) 6 The credited version of this agreement shows that the employees were to be given the option of working several Saturdays to make up for unpaid holidays in December 1985 The credited testimony further re veals that Codett specifically asked if the employees who did not work on these Saturdays would be disciplined and that he was told they would not be Wojtaszek s discredited explanation of the agreement was that all the employees had to work the replacement Saturdays or the agreement was off not the real reason for his discharge was made evi dent by several of the Respondents actions Thus Wojtaszek testified that no other long term em ployee had the poor attendance record of Codett yet Codett was given a merit increase in August 1985 when he was building the absentee record that the Respondent now asserts justifies his dismis sal Also the Respondent never spoke to Codett about his attendance records and Codett s attend ance actually had improved in the 6 weeks prior to his termination 7 The record also shows that Wojtaszek clearly was displeased with Codett s aggressiveness as union steward Wojtaszek stated he could terminate Codett after Codett refused to sign a warning notice because he had not worked one of the Sat urdays covered by the Saturday agreement 8 Fur ther when he discharged Codett Wojtaszek stated that Codett was not the kind of steward he wanted These circumstances establish that the justifica tion offered for Codett s discharge was pretextual and that the real reason was Codett s aggressive ness as a union steward Accordingly the Re spondent s discharge of Codett violated Section 8(a)(3) and (1) of the Act ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent Advance Window Corp Newburgh New York its officers agents successors and assigns shall take the action set forth in the Order 8 The General Counsel introduced into evidence a warning notice to Codett for excessive absenteeism dated February 7 1985 There is no in dication however that Codett was presented with this notice or that he ever knew about it For this reason the Respondents counsel stated that he would not rely on it as support for Codett s discharge Also Codett s evaluation dated July 29 1985 lists his attendance as fair-not good or poor Codett stated that the Respondent never spoke with him regarding this factor in his evaluation The evaluation recommends that Codett be retained and as stated he received a merit increase in August 1985 7 The Respondents claim that the decision to discharge Codett was made in mid December conflicts with Codett s December 23 1985 warn mg notice which listed the action to be taken if violation continues as possible suspension As the General Counsel points out if the Respond ent had already decided to terminate Codett possible suspension would not have been listed as its next action 8 See fn 5 supra Leonard Grumbach Esq for the General Counsel Joel Spivak Esq (Spivak & Meiselas) of Greak Neck New York for the Respondent DECISION STATEMENT OF THE CASE JULIUS COHN Administrative Law Judge This pro ceeding was tried at New York New York during vari ous dates in February and April 1987 On a charge filed 291 NLRB No 34 ADVANCE WINDOW CORP by an individual Ronnie Codett the Regional Director for Region 2 issued a complaint in Case 2-CA-21562 on 9 May 1986 alleging that Advance Window Corp (Re spondent or the Company) violated Section 8(a)(1) and (3) of the Act by discharging Codett because of his union activities An informal settlement agreement was approved by the Regional Director in that matter on 25 July 1986 Thereafter another charge was filed by Codett in Case 2-CA-21852 in which it was alleged that Respondent further violated the Act by in effect black listing Codett with respect to employers with whom he sought employment and because of his resort to the Board s processes Subsequently the Regional Director on 26 November 1986 issued an Order revoking his ap proval of the settlement agreement in the prior case and simultaneously consolidating the cases in a complaint al leging violations by the Respondent of Section 8(a)(1) and (3) of the Act Respondent filed an answer denying the commission of unfair labor practices The issues pre sented concern the propriety of setting aside the settle ment agreement in the prior case and whether Respond ent violated the Act by discharging Codett and blacklist mg him in his efforts to obtain employment All parties were given full opportunity to participate to introduce relevant evidence to examine and cross ex amine witnesses to argue orally and to file briefs The General Counsel and Respondent submitted briefs which have been carefully considered On the entire record in this case and from my obser-,,ation of the witnesses and their demeanor I make the following FINDINGS OF FACT I JURISDICTION Respondent a New York corporation has an office and principal place of business in Newburgh New York where it is engaged in the manufacture and nonretail sale of aluminum windows In the course and conduct of its business operations Respondent annually purchases and receives at its Newburgh facility goods and services valued in excess of $50 000 directly from points outside the State of New York The complaint alleges Respond ent admits and I find that it is and has been at all times material an employer engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act II LABOR ORGANIZATION The complaint further alleges Respondent admits and I find that General Trades Employees Union Local 5A (the Union or Local 5A) is a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A Background Respondent manufactures and installs windows in resi dential and commercial buildings It has a collective bar gaining agreement with the Union that represents ap proximately 30 production and maintenance employees The owner of the Company is Larry Toscano and Paul Woltaszek was the plant manager from October 1985 to September 1986 227 Charging Party Codett was employed on 4 June 1984 and worked it the shipping and receiving department He became shop steward in November of that year Codett was discharged on 13 January 1986 allegedly be cause of his poor attendance record The formal pro ceedings with regard to the issuance of the consolidated complaint under consideration have already been noted The preliminary question to be determined in this pro ceeding is whether the settlement agreement approved by the Regional Director was properly set aside Such agreement can only be set aside in the event of miscon duct by the Respondent in violation of the terms of the settlement agreement In the context of this proceeding the reference is to the alleged unlawful conduct in the second complaint relating to the so called blacklisting If Respondent engaged in the violations alleged in the second case then the settlement agreement may be set aside Accordingly I shall proceed to make my determi nation with respect to the complaint in Case 2-CA- 21852 Cambridge Contracting 259 NLRB 1374 (1982) Ann s Schneider Bakery 259 NLRB 1151 (1982) B The Blacklisting Allegation 1 Facts The facts relating to this portion of the complaint are relatively few According to Codett on 5 September 1986 he applied for a job at an automobile service station in Newburgh New York Owner John Servidio told Codett that there was a job open for a mechanic Codett stated that he had previously worked as a mechanic after having gone to a technical college for training as an automobile specialist Servidio replied that he would accept Codett s application and would call his previous employer and determine what type of recommendation he would be given As instructed Codett returned in 2 hours and was told by Servidio that he could not be hired Servidio informed him that he had spoken to Woj taszek who advised him that Codett was not a good worker was not self motivated and had many accidents Wojtaszek also told Servidio that Codett was a labor or ganizer and had taken the Company to the Labor Board Servidio then told Codett that after such a reference he was unable to hire him Servidio testified that he owned a service station for about 4 years He confirmed that about 5 September 1986 Codett came in and asked for a job as a mechanic or mechanics helper indicating that he had gone to school to become a mechanic and had actually worked as such Codett filled out an application and Servidio told him to return later in the day Servidio then called Respondent for a reference and was connected with Wojtaszek Servidio asked him how good an employee Codett had been and was told not too good Wojtaszek stated that Codett had to be told what to do all the time was not a self starter and also took off a lot of time for medical reasons Finally Wojtaszek told Servidio that Codett had been a shop steward and took the Company to the Labor Board and gave them all kinds of trouble During his cross examination Servidio affirmed this nar rative and in addition recalled that he asked Wojtaszek 228 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD whether he would rehire Codett and was told that he would not Servidio asked why and it is then that Woj taszek told him that Codett was a shop steward and took him to the Labor Board As to Wojtaszek in his direct testimony by Respond ent he did not recall the name John Servidio but did re member receiving a telephone call in September 1986 from someone who said he owned a gas station concern ing an application by Codett The man asked if he would hire Codett and Woltaszek replied that he would not He told the man that Codett was not an ambitious type worker but was somebody that required supervision and direction During his cross examination he also recalled that the man asked what kind of worker Codett was and he replied that he was not self motivated and needed su pervasion Although he remembered that the man asked if he would rehire Codett and he replied he would not Wojtaszek stated that the caller did not ask why Codett further testified that on 2 September he applied for a job as a warehouse worker at Wakefern Foods in Middletown New York He filled out an application was interviewed by a lady who then told him to call a person named Gail on Thursday by which time they would have called Respondent for a recommendation He did call as instructed and was told that they had not heard yet from Advance Window but she Gail would call Codett when she did Not having heard he called 2 weeks later and responded that she had not heard from Advance Window and he was not to call her again He never did hear anything from that company The record reveals a document in the nature of a request for infor oration sent by Wakefern to Advance Window who re sponded that Codett had had 18 accidents and that his safety habits and attendance were poor This paper is dated 10 September The parties based on records avail able stipulated that Codett did not have 18 accidents while working for Respondent It is further stipulated that there were 8 accident reports involving Codett rather than 18 It appears that the form sent by Wakefern asked for the number of accidents involving workmen s compensation There is no evidence that Codett ever re ceived any workmen s compensation and on the con trary indicated that he lost little or no time as a result of the eight accidents in which he was involved In his testimony concerning Codett s application for work at Wakefern Wojtaszek said that he prepared the form sent to him by Wakefern except the item regarding workmen s compensation He stated that item was filled in by a secretary who mailed the completed form to Wa kefern without showing it to him 2 Analysis and conclusions A decision in the so called blacklisting case rests base cally on the determination of the conflict in the testimo ny of Servidio and Wojtaszek Although Codett corrobo rated in substance the testimony of Servidio nevertheless Codett s testimony was what Servidio had related to him On the record as a whole I credit Servidio over the testimony of Wojtaszek The circumstances of their ap pearance as witnesses in this matter reflect on this deter mination On cross examination Wojtaszek admitted that he appeared without subpoena and was being compen sated to the the tune of $ 100 per day for his testimony and preparation in this proceeding Incidently he is no longer employed by Respondent having left its employ on 1 January 1987 On the other hand Servidio was indeed a reluctant witness as his appearance was com pelled by a court order enforcing a subpoena that had been served on him by the General Counsel There is no indication of any relationship between Servidio and Codett who was merely an applicant for employment at his service station Indeed an appearance in New York City would appear to be an imposition on his time Ac cordingly I find no reason why his testimony should be favorable to the Charging Party and the General Coun sel other than a desire to tell the truth In addition I find Servidio to be forthright in demeanor and testified clearly and concisely On the other hand Wojtaszek was at times evasive and as will appear in connection with the case involving Codett s original discharge somewhat contradictory I therefore adopt the testimony of Servi dio as governing the disposition of this case Having credited the testimony of Servidio I find that in response to his telephone call to Wojtaszek the latter informed him that not only was Codett an employee who had to be told what to do all the time but also was not a self starter and took off a lot of time for medical reasons Wojtaszek also stated that Codett was a shop steward and took Respondent to the Labor Board The Board has found that this type of response to a request for a reference interferes with employment opportunities and amounts to a blacklisting that related to union or other protected activity is a violation of the Act Madi son South Convalescent Center 260 NLRB 816 823 (1982) Accordingly by this conduct on the part of Wok taszek its plant manager at the time Respondent violat ed Section 8(a)(1) of the Act Inasmuch as Respondent has engaged in unlawful post settlement conduct I further find that the Regional Di rector properly set aside the settlement agreement in Case 2-CA-21562 Accordingly I shall proceed to a de cision in that matter C The Case 2-CA-21562 1 Background Codett was employed in Respondents shipping and re ceiving department from 4 June 1984 until terminated on 13 January 1986 Soon after the commencement of his employment in November 1984 Codett was elected shop steward in Respondents shop representing about 30 em ployees In that capacity Codett actively handled gnev ances from fellow employees which were usually deter mined by oral discussion with the plant manager who at the outset was James Scott and after 1 October 1985 Paul Wojtaszek Indeed Codett never had recourse to the filing of a written grievance Moreover it appears that Richard Costello vice president of the Union in charge of administering the contract rarely visited the plant but rather when necessary would discuss prob lems with Codett on the telephone The number of gnev ances markedly increased when Wojtaszek assumed the post of plant manager ADVANCE WINDOW CORP 229 In his grievance handling Codett made reference to the collective bargaining agreement and also to Respond ent s employee handbook which according to testimony of other employees had been used by management during the entire penod involved In addition it also ap pears that Respondent had a system of progressive disci pline not only during the tenure of Scott but also when Wojtaszek took over It should also be noted in connec tion with events to be described subsequently that over time was optional and employees could and would often decline overtime work when asked to do so and would not be disciplined 2 The facts During the latter part of 1985 Codett and Wojtaszek clashed over a number of matters For example there was one problem concerning overtime in which Codett and five other employees refused to work because there was some disagreement about money and evaluations for merit raises that Wojtaszek refused The following day according to Codett Wojtaszek called in Codett and two other employees during which Wojtaszek informed them that while overtime was not compulsory they had to perform it once they agreed to do so During this discus sion Codett queried Wojtaszek as to why he and the two other employees all black were called in and not the three white employees who had also refused to work the overtime On another occasion Codett challenged Wok taszek concerning his transfer of employees to a different shift and his refusal to pay the 10 percent shift differen tial for a period of time One time Wojtaszek employed his brother in law on a temporary basis as a truckdriver Codett then sought to have the brother in law sign union forms which Wojtaszek protested Codett also testified that he had a dispute concerning a raise that was sup posed to have been given a woman on maternity leave On still another occasion Codett raised the question of supervisors working and thereby performing unit work Apparently Wojtaszek was so put out by this action that he shouted at Codett and told him he was going to take him and the Union to the Labor Board Codett stated that when Toscano heard about it he apologized Finally there was considerable discussion and some dispute in December 1985 with respect to the plant clos ing during Christmas week Besides the regular holiday on 25 December Christmas Day Wojtaszek told Codett that the plant would be closed 24 26 and 27 December The employees would not be paid for those 3 days but Wojtaszek proposed that the employees work three Sat urdays prior to Christmas 7 14 and 21 December for which they would be paid straight time According to Codett he told him at this point that he did not think that all employees would agree to work on these Satur days Wojtaszek replied that he did not need 100 percent just a majority Codett then met with the employees informed them of the proposal and determined that four employees and himself would not want to work on these Saturdays Codett related these results to Wojtaszek who asked him to inform Costello of this arrangement The latter said it would be okay as long as the employees knew that if they did not work they would not get paid Codett further testified that 2 days before the first Sat urday workday Wojtaszek told him that he needed 100 percent cooperation or the agreement was off If enough employees did not come in on the first Saturday he would just pay those that did come in time and a half payable in the next pay period and that would be the end Codett protested that this was not the original agreement The following day he met with the employ ees to report that Wojtaszek had gone back on his origi nal agreement The employees all affirmed that they wanted the original agreement even for regular pay to be paid during the week that the shop would be closed They said they did not want this second proposal which would be dependent on the number of people who re ported to work The following day Codett received a call from Costello who told him that he had heard from Wojtaszek who claimed that Codett had called off the agreement Codett then explained to Costello what actu ally happened Costello then informed him that Wojtas zek had agreed to put in effect the original agreement providing for employment on the Saturdays for regular pay to be received by employees during the plant clos mg Codett stated that later that afternoon a meeting was called by Charles Stewart and Michael Tillman Codett referred to the former as production manager and the latter as foreman All employees attended Codett testi feed that Stewart told the employees that the original agreement was still on that they could work Saturday at regular pay and receive their pay during the week the shop was closed Stewart then asked how many employ ees did not want to work and Codett and four others said that they would not Codett then asked Stewart whether there would be any disciplinary action taken against employees who did not work any of the Satur days to which Stewart replied no and the meeting was then concluded 1 Codett did not work on three Saturdays No one re ceived disciplinary notices for absence on 7 December The record reveals that Codett and two other employees were marked excused absence while five others were marked absent no call Wojtaszek testified that no action was taken because this was the first Saturday and they merely reminded employees that it was a scheduled workday However Wojtaszek did give disciplinary no tices of warning to employees who were absent on 14 December Indeed he called Codett to his office the fol lowing Monday and told him that the last warning In its brief Respondent correctly contends that the complaint did not allege either Stewart or Tillman to be supervisors within the meaning of the Act Moreover I find the record insufficient to establish such super visory status However it is apparent that Stewart at least represented management in this situation According to the testimony of Codett and other employees at the hearing this meeting was instituted and conduct ed by Stewart and not anyone in a pure employee category The only other contention regarding this meeting was the question whether Woj taszek attended or was in some location such as a doorway so that he could hear what was going on Wojtaszek of course denied having been there and in this respect the testimony of employees who attended the meeting is at vanance on the question In any event I do not deem this to be of any importance Suffice it to say there is no denial that a meeting took place even in Wojtaszek s absence and this is sufficient to indicate certain of the protected concerted activity in which Codett was engaged 230 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD notice was saved for him and asked Codett to sign it The latter refused stating that he had not done anything wrong because he had informed the Company that he was not going to work on those Saturdays and that he and the other employees who did so had not broken the agreement Codett testified that at this point Wojtaszek began hollering and said that he could be terminated for talking like that and harassing him in front of another su pervisor pointing at Stewart Codett refused to sign and walked out Codett did not work on 21 December nor did eight other employees The Monday after that Satur day two employees informed Codett they had received messages on Saturday that they would be terminated if they did not come in Codett later saw Wojtaszek and asked him why he used these illegal tactics on employees Saturday and the latter walked away and told him to call his union Codett did call and report this incident to Costello On Saturday 4 January Codett came to work for half a day He had told Stewart of this the night before and the latter said it would be okay Codett did not receive a disciplinary notice for that day On 13 January 1986 when Codett reported for work Stewart told him that he was wanted in the office Wojtaszek handed him his attendance sheet which Codett looked at and returned Wojtaszek then gave him a check and told him he was terminated for excessive absence He also said that Codett was not the kind of shop steward he wanted and that there was no need to argue about this because he had already informed Costello On the date of the discharge Codett also called Cos tello and told him what had occurred Costello asked for information concerning the times that he was absent for medical reasons which Codett furnished him After a week Costello informed him that the matter may go to arbitration because Respondent refused to take him back after the controversy concerning the Saturdays prior to Christmas About 2 weeks later Costello again called and told Codett they could not go to arbitration because there was no witness to any statement by management that there would be no disciplinary action against em ployees who did not come in on those three Saturdays in December Codett then went and obtained a statement signed by a number of employees A few days later Cos tello in response to a call from Codett stated that the Union was not going to arbitration and he later received a letter confirming that decision Incidently Codett testi feed that the employees who signed the statement that management said they would not be disciplined also told Codett that they had never been questioned on this point by Costello or anyone representing the Union This was further substantiated by the testimony at the hearing of employee witnesses Kolb Sickler and Watson Finally Codett s record of absenteeism must be de tailed as this is the stated reason for his discharge The record shows that Codett was absent a total of 38 days in 1985 With regard to these he received a warning from Wojtaszek s predecessor Scott for an absence on 15 May 1985 because he failed to call in A number of his absences were due to illnesses such as 5 days in August when he was hospitalized and absences on 4 and 5 December because of an injury sustained at work He was absent on 31 December also because of an injury at work In addition 9 days of absence were the result of a loss of a return bus ticket while on vacation in South Carolina Respondent was advised of this matter and Scott sent him a money order that permitted him to return to work Codett received no warning or repri mand regarding this absence of 9 days The total also in cluded 3 disputed days of the Christmas Saturdays 7 14 and 21 December Codett was not absent in January 1986 during the period immediately preceding his dis charge In addition his record indicated four warning notices of which one on 15 May has been previously mentioned one issued 2 October by Wojtaszek because of Codett s failure to work overtime after agreeing to do so This is the incident that resulted in a heated discus sion and charge of racism also referred to above Two notices of course were with respect to the disputed ab sences on 14 and 21 December The parties stipulated that Codett was never suspended for absenteeism or any other reason although it appears that Respondents work rules provided for progressive discipline including sus pension prior to discharge 3 Analysis and conclusions A determination must be made initially with respect to credibility As noted in the discussion of the postset tlement case above on the basis of Wojtaszek s demean or coupled with his presence at the hearing pursuant to subpoena by Respondent and its payment to him for his testimony I do not find him to be credible On the other hand Codett s testimony was in various areas substantiat ed by the testimony of other employee witnesses Woj taszek was the only witness called by Respondent and despite the references in the record to conversations meetings and 'ncidents at which other management people such as Toscano Stewart Tillman and others were present not one of these was called to corroborate any of Wojtaszek s statements or testimony For exam ple although Respondent has contested the supervisory status of Stewart and Tillman I find on the basis of un contradicted testimony that they were at the very least management representatives It is noted that the meeting of employees conducted by Stewart was not really con tested by Respondent whether it actually took place The only matter put in issue was whether Wojtaszek was in the neighborhood of the meeting so that he could have overheard what was being said It is difficult to believe that Stewart would have a meeting with employees with out the knowledge and acquiescence of management Nevertheless Stewart did not testify in connection with the attendance requirements of employees on the Satur day workdays in December On the basis of these credi bility findings I further find that Codett s version and that of the other employees regarding the agreement to make up for the lost days during the Christmas holidays by working three Saturdays voluntarily was correct In any case this would be the more likely version in view of the past policy of voluntary overtime and the history of absences so that the Respondent was usually agreeable to having a reasonabie complement rather than having an expectation of 100 percent attendance ADVANCE WINDOW CORP The complaint alleges that during December 1985 Wojtaszek threatened Codett with discharge because of his activities as shop steward This allegation refers to the Monday following the second Saturday of work 14 December Wojtaszek had given warning notices to em ployees who had not reported for work that Saturday He called Codett into his office told him he had saved the last disciplinary action for him and asked Codett to sign it The latter refused saying he had not done any thing wrong since he had informed the Company that he was not going to work on those Saturdays and further that no agreement had been broken by the employees but rather that Wojtaszek did not keep his agreement Stewart and a secretary were present in the office at the time Woltaszek at that point began hollering at Codett and said he could be terminated for talking like that and harassing him like that in front of another supervisor pointing at Stewart Codett then walked out I find by this conduct on the part of Wojtaszek Respondent vio lated Section 8(a)(1) of the Act The disciplinary action in question was not only with respect to Codett but also to the other employees who failed to work on the pre ceding Saturday The discussion if one could call it that was with respect to the agreement made by Codett as shop steward with Wojtaszek representing the Employ er Any argument concerning its interpretation or who did or did not break that agreement is concerted activity protected under the Act particularly since other em ployees were disciplined When Wojtaszek stated that Codett could be terminated for talking the way he did that is by stating that Wojtaszek violated the agreement then clearly Wojtaszek was unlawfully threatening terms nation Curiously it may also be noted that during Woj taszek s response to Codett he referred to Stewart as a supervisor This serves to substantiate by Respondent s sole witness the prior finding that Stewart was at the least a member of management There remains for consideration whether Respondent violated Section 8(a)(3) of the Act by terminating Codett The General Counsel contends that Respondent discharged Codett because he was an active and persist ent shop steward Respondent claims that the cause was excessive absenteeism Almost the entire record of this proceeding relates to Codett s activity as a steward con stantly embroiled with the grievances of the employees individually or as a group Wojtaszek as plant manager was clearly hostile to Codett and his efforts Moreover it has been found that Codett was threatened with terms nation by Wojtaszek in violation of Section 8(a)(1) of the Act This would be sufficient to establish Respondent s animus toward Codett However it is equally clear on the basis of Wright Line 251 NLRB 1083 (1980) enfd 662 F 2d 899 (1st Cir 1981) cert denied 455 U S 989 (1982) and NLRB v Transportation Management Corp 462 U S 393 (1983) that an employer may defend by a showing that an em ployee would have been discharged in any event despite his involvement in union or other protected activity I find that Respondents asserted reason of absenteeism has not been established The total number of days absent in 1985 (38 days) was inflated by the three Satur days in contention 9 days while on vacation in South 231 Carolina apparently excused by Respondent sending him a bus ticket to return and several other days absent due to work related injuries In addition Respondent was plagued by absenteeism and had to overlook some of it to retain its work force Actually since Codett was dis charged on 13 January his attendance record was good for the past 6 weeks if one discounts the three disputed Saturdays Also to be noted is that Respondent did not apply its progressive discipline policy to Codett as he never was suspended Arrayed against this is the obvious animus displayed by Wojtaszek against Codett He actually said it all when he told Codett at the time of his termination that he was not the kind of steward he wanted This brings to mind the strange absence of the Union in this situation-not to file even a grievance on the termination of its steward Codett s hyperactivity perhaps is more understandable in this atmosphere of lack of support by union officials Moreover it sheds more light and reason for the termina tion Getting rid of Codett was buying peace for Wojta szek and Respondent absent an active union presence Accordingly I find that Respondent has not shown that it would have taken the same action discharge absent Codett s union activity It thereby violated Sec tion 8(a)(3) and (1) of the Act IV THE EFFECT OF UNFAIR LABOR PRACTICES ON COMMERCE The activities of Respondent set forth in section III above occurring in connection with the operations of Respondent described in section I above have a close intimate and substantial relationship 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 THE REMEDY Having found that Respondent has engaged in certain unfair labor practices I shall recommend that it be or dered to cease and desist therefrom and take certain of firmative action designed to effectuate the policies of the Act Having found that Respondent unlawfully discharged Ronnie Codett in violation of Section 8(a)(3) and (1) of the Act I shall recommend that Respondent be ordered to offer him immediate and full reinstatement to his former position or if that job no longer exists to a sub stantially equivalent position without prejudice to his se niority or any other rights or privileges previously en toyed and make him whole for any loss of earnings suf fered by reason of the discrimination against him with interest as computed in New Horizons for the Retarded 283 NLRB 1173 (1987) 2 The earnings shall be computed 2 In accordance with our decision in New Horizons for the Retarded 283 NLRB 1173 (1987) interest on and after January 1 1987 shall be computed at the short term Federal rate for the underpayment of taxes as set out in the 1986 amendment to 26 US C § 6621 Interest on amounts accrued prior to January 1 1987 (the effective date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp 231 NLRB 651 (1977) 232 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD at the rate he received at the time of his termination by Respondent and any increments thereafter or at the rate he would have obtained if employed by Servidio or Wa kefern the Employers at which he was unlawfully black listed by Respondent whichever of the three was high est Respondent shall receive credit for the amount of money it paid Codett pursuant to the settlement agree ment in Case 2-CA-21562 which has been set aside I shall also recommend that Respondent remove from its records any reference to the unlawful discharge of Codett and inform him that this will not be used as a basis for further personnel actions against him 3 Finally I shall recommend that Respondent be or dered to notify John Servidio and Wakefern Foods in writing that it withdraws its negative statements and re marks with respect to Codett s union activities CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 The Union is a labor organization within the mean ing of Section 2(5) of the Act 3 As a result of Respondents unlawful conduct in Case 2-CA-21852 the settlement agreement in Case 2- CA-21562 was properly set aside 4 By threatening termination of Ronnie Codett be cause of his union and other protected concerted activi ties Respondent violated Section 8(a)(1) of the Act 5 By discharging Ronnie Codett because of his union activities as shop steward Respondent violated Section 8(a)(3) and (1) of the Act 6 By blacklisting Codett as a union activist in re sponse to request for references by other prospective em ployers Respondent violated Section 8(a)(1) of the Act 7 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act 8 Respondent has not engaged in unfair labor prac tices except as specifically found above On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed4 ORDER The Respondent Advance Window Corp Newburg New York its officers agents successors and assigns shall 1 Cease and desist from (a) Threatening employees with discharge because of their support for and activities on behalf of the Union (b) Discharging employees because of their activities on behalf of the Union (c) Blacklisting discharged employees on the basis of their union activities in their efforts to seek other em ployment (d) In any like or related manner interfering with re straining or coercing its employees in the exercise of rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of Act (a) Offer Ronnie Codett immediate and full reinstate ment to his former position of employment or if that job no longer exists to a substantially equivalent position without prejudice to his seniority and other rights and privileges previously enjoyed (b) Make whole Ronnie Codett for any loss of earn ings and other benefits suffered by him as a result of the discrimination against him in the manner set forth in the remedy section of this decision (c) Notify John Servidio and Wakefern Foods by reg istered mail that Respondent has withdrawn the negative references concerning Ronnie Codett and his union ac tivities that it furnish them either by telephone or in writing (d) Remove from its files any reference to the dis charge of Ronnie Codett and notify him in writing that this has been done and that evidence of this unlawful ter mination will not be used by it as a basis for future per sonnet action against such employee (e) 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 (f) Post at its Newburgh New York office and plant copies of the attached notice marked Appendix s Copies of the notice on forms provided by the Regional Director for Region 2 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 (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply IT IS FURTHER ORDERED that the complaint be dis missed regarding such allegations not specifically found violative of the Act 3 Sterling Sugars 261 NLRB 472 (1982) 4 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 put poses 5If 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 Nation at 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 ADVANCE WINDOW CORP 233 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or dered us to post and abide by this notice WE WILL NOT threaten you with discharge because of your activities on behalf of the Union WE WILL NOT discharge employees because of their activities on behalf of the Union WE WILL NOT blacklist discharge employees on the basis of their union activities in their efforts to seek other employment WE WILL NOT in any like or related manner interfere with restrain or coerce our employees in the exercise of their rights guaranteed in Section 7 of the Act WE WILL offer Ronnie Codett immediate and full rein statement to his former position of employment or if that job no longer exists to a substantially equivalent po sition without prejudice to his seniority and other rights and privileges previously employed WE WILL notify those prospective employees to whom we furnished references that we are withdrawing the negative remarks about Ronnie Codett and his union ac tivities WE WILL remove from our files any reference to the discharge of Ronnie Codett and notify him in writing that this has been done and the evidence of his unlawful termination will not be used by us as a basis for future personnel actions against him ADVANCE WINDOW CORP J