Diamond International Corp.

National Labor Relations Board - Board Decisions

Aug 17, 1984

271 N.L.R.B. 1051 (N.L.R.B. 1984)

DIAMOND INTERNATIONAL CORP.
Diamond International Corporation and Millmen's
Union, Local 1495, affiliated with United Broth-
erhood of Carpenters & Joiners of America,
AFL-CIO. Case 20-CA-18017
17 August 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 18 April 1984 Administrative Law Judge
Gerald A. Wacknov issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed an answering
brief.
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,' and
conclusions and to adopt the recommended Order
as modified. 2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Diamond International Corporation, Red
Bluff, California, its officers, agents, successors, and
assigns, shall take the action set forth in the Order
as modified.
1. Substitute the following for paragraph l(b).
"(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Substitute the attached notice for that of the
administrative law judge.
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.
Chairman Dotson does not adopt the judge's references to Spencer
Foods, 268 NLRB 1483 (1984), in fn. 4 of his decision.
a In par. I(b) of the recommended Order, the judge used the broad
cease-and-desist language "in any other manner." We have considered
this case in light of the standards set forth in Hickmott Foods, 242 NLRB
1357 (1979), and have concluded that a broad remedial order is inappro-
priate because it has not been shown that the Respondent has a proclivity
to violate the Act or has engaged in such egregious or widespread mis-
conduct as to demonstrate a general disregard for the employees' funda-
mental statutory rights. Accordingly, we have modified the recommend-
ed Order and notice so as to use the narrow injunctive language "in any
like or related manner." We have also included in the notice expunction
language in accordance with the recommended Order.
271 NLRB No. 162
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 ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT refuse to hire employees in retal-
iation for the lawful union activity of business rep-
resentatives of Millmen's Union, Local 1495, affili-
ated with United Brotherhood of Carpenters &
Joiners of America, AFL-CIO.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer immediate employment to em-
ployee Cheryl Houk at our Red Bluff facility, and
WE WILL make her whole for any loss of earnings,
with interest, she may have suffered as a result of
being denied employment.
WE WILL expunge from our records any refer-
ence to the unlawful failure to hire Cheryl Houk.
DIAMOND INTERNATIONAL CORPORATION
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge.
Pursuant to notice, a hearing with respect to this matter
was held before me in Red Bluff, California, on Decem-
ber I and 2, 1983.' The charge was filed on April 27 by
Millmen's Union, Local 1495, affiliated with United
Brotherhood of Carpenters & Joiners of America, AFL-
CIO (the Union).
Thereafter, on July 28, the Regional Director for
Region 20 of the National Labor Relations Board (the
Board) issued a complaint and notice of hearing alleging
a violation by Diamond International Corporation (Re-
spondent) of Section 8(a)(1) and (3) of the National
Labor Relations Act (the Act). Respondent's answer to
All dates are in 1983 unless otherwise specified
1051
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the complaint, timely filed, denies the commission of any
unfair labor practices.
The parties were afforded a full opportunity to be
heard, to call, examine, and cross-examine witnesses, and
to introduce relevant evidence. Since the close of the
hearing, briefs have been received from the General
Counsel and Respondent.
On the entire record, and based on my observation of
the witnesses and consideration of the briefs submitted, I
make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent is a Delaware corporation with an office
and place of business in Red Bluff, California, and is en-
gaged in the manufacturing of lumber and related prod-
ucts. In the course and conduct of its business operations,
Respondent annually sells and ships from its Red Bluff,
California facility products, goods, and materials valued
in excess of $50,000 directly to points outside the State
of California.
It is admitted, and I find, that Respondent is now, and
has been at all times material herein, an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted that the Union is, and has been at all
times material herein, a labor organization within the
meaning of Section 2(5) of the Act.
1. THE ALLEGED UNFAIR I.ABOR PRACTICES
A. The Issues
The principal issue raised by the pleadings is whether
Respondent failed and refused to hire employee Cheryl
Houk in violation of Section 8(a)(1) and (3) of the Act.
B. The Facts
Respondent and the Union herein have maintained a
collective-bargaining relationship for about 20 years at
Respondent's Red Bluff, California facility, and for over
30 years at Respondent's Chico, California facility, in
separate bargaining units covered by separate collective-
bargaining agreements. The mill at Chico was shut down
for economic reasons in November 1981, and a portion
of it, the boxing factory, was reopened in about Febru-
ary 1982. As a result, the work force at Chico decreased
from about 175 to only 15 or 20 employees. The Chico
employees were initially placed in layoff status, and
those employees who were not rehired within a year fol-
lowing the layoff were terminated. Carl Holm, the
Union's business representative responsible for servicing
both facilities, which are located about 50 miles apart,
advised all former Chico employees with whom he came
in contact to apply for employment at Respondent's Red
Bluff mill. Holm filed grievances during the summer of
1982 involving some 30 to 50 Chico employees who had
been laid off and, apparently in November 1982, filed an
additional 60 to 90 grievances as a result of the subse-
quent terminations of the Chico employees. Additionally
two employees, Ivar Brustad and William Richmond,
were hired as new employees at the Red Bluff facility
subsequent to being terminated at Chico, and Holm filed
a grievance on their behalf to retain the seniority they
had accrued during their employment at the Chico mill.
On March 17, at the Red Bluff facility, Holm had a
grievance meeting with Eugene Slocomb, Respondent's
director of personnel and industrial relations, who is Re-
spondent's principal labor relations and grievance repre-
sentative for its California lumber division, including the
Red Bluff and Chico facilities. Prior to the meeting, Slo-
comb told Holm that he was expecting a representative
from the Government, and that "we'd all be out of a
job" if the Government representative's review was un-
favorable. As they were talking, Cleveland Martin, an
agent of the United States Department of Labor, Em-
ployment Standards Administration, Office of Federal
Contract Compliance Program, entered the premises.
Holm introduced himself to Martin and stated that he
would like to talk to him later and find out what his
function was. The grievance meeting between Slocomb
and Holm was then held.
Later that day Martin, who had been directed by Slo-
comb to Holm's office in Red Bluff, met with Holm.
Holm wanted to know why Martin was investigating Re-
spondent and what the possible results could be. Martin
explained that he was conducting an equal opportunity
review, preparatory to awarding Respondent a Govern-
ment contract for the cutting of timber. Holm explained
his concerns with the Chico employees as a result of the
shutdown of the Chico facility, and Martin suggested
that this was not a matter with which he was involved,
but rather appeared to be a labor relations matter. At
one point during the conversation, Martin mentioned
that the reason Respondent did not have a sufficient
number of women employed at Red Bluff was because it
appeared there were not enough qualified female appli-
cants for certain positions. This comment caused Holm
to respond that a former Chico employee, Cheryl Houk,
one of three female employees who had been terminated
as a result of the plant shutdown, was seeking a job in
Red Bluff and would be a good choice. 2 Martin said that
he would mention this individual's name to Slocomb
during a meeting scheduled for the next day.
When Martin left, Holm called Houk and told her to
get her application updated at Red Bluff because he
learned that Respondent was supposed to hire several
more women. He also told her that he would call Red
Bluff and attempt to schedule an employment interview
for her. Apparently Holm called Slocomb that day and
arranged an interview with Houk for the next day.
The next day, March 18, Martin met with Slocomb
and Pauletta White, Respondent's personnel and affirma-
tive action supervisor. He related the conversation he
had with Holm the preceding day, and mentioned that
there was a female employee who would like to relocate
to Red Bluff. White, rather than Martin, then mentioned
2 Holm mentioned only Houk's name as he did not then recall the
names of the other female employees.
1052
DIAMOND INTERNATIONAL CORP.
Cheryl Houk's name and said that Houk was scheduled
to be interviewed. Martin testified that during this con-
versation he did not state or imply that Respondent had
been discriminating against former Chico female employ-
ees, as Slocomb maintains, infra.
Houk, who had worked at the Chico facility since Jan-
uary 1977, was interviewed for a position that same day,
March 18. The interview was conducted by Slocomb, an
unusual occurrence as the record reflects that White per-
forms virtually all the interviewing and hiring at Red
Bluff. During the interview, according to Houk, Slo-
comb explained the nature of the job and, after being ad-
vised of Houk's qualifications, said that Houk would be
considered for any available entry level position as a la-
borer. Houk's testimony is unrebutted.
On March 22, prior to another grievance meeting, Slo-
comb asked if he could speak with Holm privately. Slo-
comb, according to Holm, was very upset. Slocomb
opened the conversation by stating, "I'm getting sick and
tired of you and the Chico people causing all these prob-
lems." He went on to say that not only was he not going
to hire "the girl [Holm] was pushing," but he was think-
ing of laying off the former Chico employees who were
still within their probationary period. He added that
Holm's complaints to Martin, the Government represent-
ative, could have "messed things up" with the compli-
ance review. Holm attempted to explain that he did not
lodge any complaints, but merely talked to Martin about
the problems he was encountering.
Immediately after the grievance meeting, Holm
phoned Martin and asked him what he had said that
caused Slocomb to become so upset. Martin said he did
not know and agreed to call Slocomb about the matter.
Martin did so and explained to Slocomb, in effect, that
Holm had done nothing to interfere with the compliance
review.
About a week later at Respondent's Red Bluff office,
Pauletta White asked Holm exactly how he learned Mar-
tin's identity. Holm replied that Slocomb had told him,
and White said something to the effect that Slocomb
talks too much. She asked Holm why he approached
Martin with the various matters, and stated that she was
an affirmative action supervisor and that Holm was get-
ting her in trouble. She also told Holm that she had pre-
viously advised Slocomb not to hire any Chico people,
and asked, apparently referring to the aforementioned
grievance involving Brustad and Richmond, "Would you
hire Chico people, if you knew they were going to file
grievances against you?"
Slocomb admitted that during his meeting on March
18 with Houk, which Holm had arranged, Slocomb ex-
plained the job and told her that she would be consid-
ered for any future openings as a laborer. Slocomb fur-
ther admitted that during his March 22 conversation
with Holm he advised Holm that he was "very unhappy
that he had told Cleveland Martin that Diamond was dis-
criminating against Chico women, because it wasn't
true," and further stated that perhaps in order to allevi-
ate any problems with the compliance review, Respond-
ent should not hire any more Chico people. However,
Slocomb denied making the statement about the appli-
cant referred by Holm, or that he told Holm that he was
thinking about laying off any former Chico employees.
Slocomb further testified that, when he first met with
Martin, he was advised by Martin that the Company was
underutilizing both skilled and semiskilled women in the
sawmill portion of the Red Bluff operations, but that the
number of females employed as laborers, the entry level
position, was satisfactory. He told Martin that obtaining
qualified semiskilled female applicants was a problem.
Later, after visiting Holm, Martin returned to the plant
and said, according to Slocomb, that "Holm accused Di-
amond of discriminating against Chico women, but he
[Martin] figured it was a labor problem, and he didn't
want any part of it." Slocomb admitted that he was upset
because of this, and testified that he believed Holm was
making false allegations in a "deliberate attempt to sabo-
tage the audit." However, he did not state this to Holm
when Holm called to arrange the appointment with
Houk. By letter dated April 15, Slocomb was notified
that the preaward equal opportunity compliance review
had been completed and that the results were satisfactory
to Respondent.
According to Slocomb, the qualifications for the labor-
er or entry level position at the sawmill require only that
the employees "just have to be warm and moving." Re-
garding his explanation for Respondent's failure to hire
Houk, Slocomb testified that, either the same day or the
day following his interview with Houk, White advised
him that she had called Chico to "double check" Houk's
employment record, and had learned that Houk was on
the unacceptable list for rehire in Chico because of her
attendance. As a result, White made the decision not to
hire Houk.
Slocomb testified that he "could have" received a call
from Martin following his March 22 chastisement of
Holm, but repeatedly testified that he neither remem-
bered any of the details of the conversation nor whether
in fact he had received such a call.
White testified that in February she called Candice
Murphy, the personnel secretary at the Chico facility, to
inquire about Cheryl Houk, who had applied earlier and
was then among four employees being considered for
employment at Red Bluff for whom positions were avail-
able. She also checked on the three other applicants,
Jerry Bagley, Johnny Armstrong, and Floyd Wood.
During this conversation, White was allegedly told by
Murphy that Houk had an "unacceptable attendance
record" at Chico, but White was not provided with the
details of Houk's record. Therefore, according to White,
Houk was not hired at Red Bluff because of her unac-
ceptable attendance record at Chico.
White was aware of Houk's March 18 interview with
Slocomb and, when Houk appeared for her interview,
White pulled her application and gave it to him. Howev-
er, White claims she had forgotten about Houk's attend-
ance record and had made no notation of it on Houk's
application. Following the interview, according to
White, she recalled that Houk had an unacceptable
record. She again called Murphy to ensure that her
recollection was correct. Murphy again checked the
records and confirmed that Houk had an unacceptable
1053
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
record at Chico. White then so advised Slocomb and, as
a direct result, Houk was not hired. The three other ap-
plicants whom White was considering at the time, Arm-
strong, Wood, and Bagley, were hired at Red Bluff, as
they had acceptable records while employed at Chico.
White specifically and repeatedly testified that the sole
reason Cheryl Houk was not hired at Red Bluff was be-
cause of her attendance record at Chico, and that neither
Houk's work performance, work quality, nor experience
was a factor. According to White, Houk was simply no
longer considered for employment when it was learned
that her attendance record at Chico placed her in the
category of being unacceptable for rehire at that facility.
Significantly, however, White did not submit this as a
reason for failing to hire Houk during the investigation
of the instant charge by the Board. Rather, her sworn af-
fidavit states, "Applicants with prior relevant experience
are given final consideration when we are filling jobs
. . .the date of job application is considered-when con-
sidering applicants who are otherwise equal in qualifica-
tions. I have considered Cheryl Houk each time a labor-
er has been hired, Employees hired since March 1983
have either been more experienced or have. had applica-
tions on file longer than Cheryl Houk."
Upon considering the matter, White believed her affi-
davit to be deficient in that it did not reflect the underly-
ing reason, attendance, for the failure to employ Houk.
Therefore, specifically to clarify Respondent's position,
she prepared an explanatory letter to the Board agent.
The letter, written by White although signed by Slo-
comb, does not mention that Houk's attendance preclud-
ed her from being employed, and contains attachments
listing the names of 29 individuals and a brief explanation
of why each was hired under the heading "Reason for
Hire Ahead of Cheryl Houk." Twenty-six of the individ-
uals were hired as laborers, the position for which Houk
was admittedly qualified. The list reflects that these em-
ployees were hired ahead of Houk because of prior relat-
ed experience, or because they had "acceptable work
records." In only two instances does the list specify as a
reason for rejecting Houk over the particular applicant
who was hired that "Cheryl Houk's work record with
Diamond was again a factor," and in only one instance
does the list state that "Cheryl Houk did not have an ac-
ceptable work record with Diamond." In no instance did
Respondent state that, as White explicitly and repeatedly
testified at the hearing, Houk was rejected because of
her attendance. White testified that she was unable to ex-
plain why she did not use the word "attendance" in her
affidavit or the attachment to the aforementioned letter
and said, "I could have swore that I did. That's the way
it was in my mind, yes." When asked why she did not
just directly say that Houk was not hired because of
poor attendance, White again replied that Houk's attend-
ance record was the only reason, but that the reasons she
proffered during the investigation were synonymous
with poor attendance in her mind.
Regarding the compliance review, White testified that
she was present when Martin mentioned Houk's name to
Slocomb.3 Thereafter, she pulled Houk's file and gave it
to Slocomb. There was nothing in the file or on the ap-
plication denoting that Houk's employment was defi-
cient. White also testified that she was "very concerned"
that Holm had made an allegation that the Company had
been discriminating against employees, and stated that
she was present when Martin told this to Slocomb. She
did tell Holm that, according to her affidavit, "If we had
hired from the outside, without giving preference to
Chico people, we wouldn't have had the problems with
the audit." White admitted, however, that in fact no
preference was given to Chico employees, and they were
allegedly treated in the same manner as applicants who
had not previously worked for the Company.
Billy Leon Lafferty is personnel manager at the Chico
facility. He testified that the entire Chico work crew was
laid off in November 1981, and those employees who
had not been recalled were terminated in November
1982. In December 1982, the policy was established that
any former employee with over six occurrences of ab-
sence or tardiness during a 12-month "work period"
would be deemed unacceptable for rehire at that time,
and an "occurrence sheet" was devised to be attached to
each application for easy reference. Each employee's
work record was reviewed, and the applications for
rehire were separated into an acceptable and substandard
file. Cheryl Houk was placed in the substandard file. Her
occurrence sheet shows nine occurrences of absence or
tardiness, totaling 27.2 hours, during the 12-month work-
ing period prior to her discharge, and that she received
no warning letters. The occurrence sheet is incorrect,
however, infra. Under the established guidelines, an ab-
sence was considered an "occurrence" regardless of
whether the employee was ill or had an excused absence.
Moreover, each tardiness, regardless of its duration, and
each absence whether for part of a day or a full day,
with certain exceptions not relevant here, was deemed to
constitute one occurrence. Thus, an employee with nine
occurrences could have missed as much as 72 hours of
work or as little as an hour or so.
Lafferty testified that the data on the occurrence
sheets were hastily compiled in anticipation of a great
influx of applications. Indeed, there were approximately
165 applications for less than 20 jobs. Lafferty further
stated that, based on the standard for reemployment then
utilized, approximately half of the former Chico employ-
ees were deemed to be unacceptable for rehire at that
time. White testified that she was aware of this standard
which Lafferty applied to the former Chico employees.
Lafferty testified that Houk was rehired at Chico in
July 1983, as the applicants in the acceptable file had
been exhausted and the applications of the remaining em-
ployees were reevaluated. As a result, Houk was among
the first employees to be rehired. Lafferty further testi-
fied that, in his estimation, an employee's "work record"
is defined as including the nature of the jobs the employ-
ee is capable of performing, and his or her overall con-
duct and attendance. Thus, attendance, according to Laf-
3 As previously noted, Martin testified that he told Slocomb and White
that he was aware of a female applicant for a job with Respondent,
whereupon White stated Houk's name.
1054
DIAMOND INTERNATIONAL CORP.
ferty, constitutes merely one of several factors compris-
ing an employee's work record. White testified that she
was not aware of Houk's work record as the term was
defined by Lafferty, but was merely aware that Houk's
attendance was deficient.
Respondent's attendance records for Houk show that
during her 12-month work period preceding her dis-
charge she was absent for a total of 23.2 hours and had 8
occurrences, rather than 27.2 hours of absence and 9 oc-
currences as erroneously reflected on her occurrence
sheet. Thus, during the applicable period, she missed 2
full days of work totaling 16 hours, and had 6 other oc-
currences totaling 7.2 hours, each occurrence ranging
from 12 minutes to 3 hours and 24 minutes. The record
contains similar figures for the three other former Chico
employees who were under consideration and who were
hired: Jerry Bagley had 4 occurrences and was absent
for 19 hours; Johnny Armstrong had 4 occurrences total-
ing 25 hours, nearly 2 hours of absence more than Houk;
and while the record regarding Floyd Wood is not clear-
ly legible, it appears that he had 5 occurrences totaling
18 hours.
C. Analysis and Conclusions
Respondent argues repeatedly in its brief that the "es-
sential" and "crucial" point is that once White ascer-
tained that Houk's attendance record at Chico caused
her to be placed in the "unacceptable for rehire at that
time" file at Chico, Houk was thereafter not considered
for hire at Red Bluff and her application was not com-
pared with others each time an opening occurred.
Indeed, White admitted she had no idea of Houk's work
record and, according to Respondent's brief, the fact that
Houk may have been able to do the job has no rel-
evance. Nor, according to Respondent, does it matter
that White hired numerous other applicants who were
not former Chico employees, without ever checking
their attendance or employment records with prior em-
ployers. The fact that Respondent clearly applied a more
stringent standard to former Chico employees makes no
difference, according to Respondent, so long as it treated
all the Chico applicants equally.4
While the foregoing summary of Respondent's argu-
ment, if supported by the evidence, may provide a lawful
rationale for Respondent's failure to hire Houk, the
threshold question remains: Why did Respondent not
make these contentions during the investigative stage of
this proceeding? White, who appeared to be a knowl-
edgeable individual and holds a highly responsible posi-
tion with Respondent, was given every opportunity to
do so, and in this regard her reasons for failing to hire
Houk, contained in her affidavit, must be restated: "Ap-
plicants with prior relevant experience are given final
consideration when we are filling jobs . . . the date of
job applicant is considered-when considering applicants
who are otherwise equal in qualifications. I have consid-
ered Cheryl Houk each time a laborer has been hired.
Employees hired since March 1983 have either been
4In another context, similar treatment of former employees was found
to be discriminatory and violative of the Act Spencer Foods, 268 NLRB
1483 (1984).
more experienced or have had applications on file longer
than Cheryl Houk." The foregoing explanation is simply
false. Thus, White testified that once she learned that
Houk was unacceptable for rehire at Chico, she thereaf-
ter eliminated her from consideration; and White admit-
tedly was never aware of Houk's work experience. Most
importantly, White failed to mention during the investi-
gation that Houk's "attendance" was even a consider-
ation when, in fact, it was allegedly the sole, determina-
tive, and operative reason for Respondent's refusal to
hire her.
As noted previously, White, believing that her affida-
vit did not fully explain why Houk was not hired, sup-
plemented it with a letter containing a summary of her
rationale for hiring some 29 other individuals, under the
heading "Reason for Hire Ahead of Cheryl Houk."
Clearly it was not a small undertaking to compile such a
list, and if the true reason for failing to hire Houk was
her alleged unacceptable attendance at Chico, White's
failure to simply and directly submit this as a reason was
entirely irrational. Moreover, rather than disclose the al-
leged operative reason, White engaged in the futile exer-
cise of compiling the aforementioned list containing, as
Respondent must now concede, unnecessary and super-
fluous information. Further, the list itself is tantamount
to an admission that Houk's placement in the "unaccept-
able for rehire at that time" category at Chico because of
her attendance was not the reason for her failure to be
hired at Red Bluff. Thus, the list expands upon the rea-
sons given in White's affidavit regarding the "experi-
ence" of other applicants, and only in three instances
was Houk's "work record" considered to be "a factor"
in Respondent's determination not to hire Houk. Assum-
ing arguendo that despite White's position as an equal
opportunity and personnel supervisor she was neverthe-
less not conversant with the distinction between "work
record" and "attendance," White gave no plausible ex-
planation for stating in the attachments to the position
letter that Houk's work record (meaning, according to
White, "attendance") was only "a factor" rather than the
one and only reason for Houk being automatically dis-
qualified from consideration for employment at any time
thereafter, as White adamantly maintained at the hearing.
I discredit White, and am constrained to conclude that
her testimony and the documentary evidence she provid-
ed are total fabrications. Simply stated, White's explana-
tions for her conduct are inconsistent and nonsensical,
and Respondent has proffered no plausible explanation to
justify White's varying and incongruous reasons for her
rejection of Houk. Moreover, I discredit the testimony of
Candice Murphy, personnel secretary at Chico, to the
extent that it corroborated White's testimony.
The record is clear that both Slocomb and White were
extremely upset with Holm and initially believed, incor-
rectly, that Holm was attempting to "sabotage" the equal
employment opportunity compliance review or audit
conducted by Martin. Holm had no such intention, as
Slocomb was specifically made aware by Martin during
their subsequent phone conversation. Yet, apparently nei-
ther Slocomb nor White appreciated Holm's discussing
the various labor relations problems with Martin, and de-
1055
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cided to retaliate, I conclude, by failing to hire Houk.
Indeed, Slocomb had earlier threatened to so retaliate
against Holm by directly telling him, I find, that he was
not going to hire "the girl [Holm] was pushing." 5
Having found that Respondent's shifting reasons for its
failure to hire Houk are patently false, it may be inferred
that there is another concealed motive for such conduct.
Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 446, 470
(9th Cir. 1966); Daniel Construction Co., 229 NLRB 93,
95 (1977); Kern's Bakeries, 227 NLRB 1329, 1332 (1977);
John P. Bell & Sons, Inc., 266 NLRB 607 (1983). Howev-
er, it appears unnecessary to make such an inference be-
cause, as noted, it was directly and succinctly stated to
Holm by Slocomb that as a result of Business Represent-
ative Holm's conduct in meeting with a representative of
the Department of Labor to discuss matters concerning
current and former Chico employees, Slocomb deter-
mined that he would not hire the applicant referred by
Holm. In meeting with Martin to dicuss union-related
matters, and in referring Houk, a former unit member,
for employment, it is clear that Holm was engaging in
legitimate union objectives as business representative. Re-
taliation against an employee because of the legitimate
union activity of another is clearly violative of the Act.
See Kern's Bakeries, supra; H. B. Zackry Co., 261 NLRB
681, 682 (1982); Albertson Mfg. Co., 236 NLRB 663
(1978); Copes-Vulcan, Inc., 237 NLRB 1253 (1978). More-
over, it would appear to make no difference whether the
union activity was engaged in by a coworker or union
representative, as the adverse effects on the employee
remain the same. I therefore find that, as alleged, Re-
spondent's failure to hire Houk is violative of the Act.
Respondent, in its brief, argues that even if it were
motivated in part by antiunion considerations in its fail-
ure to hire Houk, it would nevertheless have refused to
hire her because of her attendance record. 6 In making
this contention, Respondent would apparently reiterate
its prior arguments, maintaining that only seven former
Chico employees were hired at Red Bluff, and none of
them had over six occurrences of tardiness or absentee-
ism. Under Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (lst Cir. 1981), Respondent assumes the
burden of overcoming the General Counsel's prima facie
case and, as applied to the instant matter, must demon-
strate that Houk would not have been hired in any event
because of her attendance, as she was admittedly other-
wise qualified for the position. The fact that seven appli-
cants from Chico were hired, and that each of them had
fewer occurrences than Houk, does not demonstrate that
those employees with more than six occurrences were
not even considered for hire. As noted previously, I have
specifically discredited White and her testimonial asser-
tions that employees deemed unacceptable by Chico be-
cause of their attendance were thereby eliminated from
consideration at Red Bluff. Moreover, Respondent has
produced no probative documentary evidence establish-
5 I credit Holm and Martin to the extent their testimony is inconsistent
with that of Slocomb and White.
B Respondent does not maintain that Houk would not have been hired
as a result of her experience or work record, because the record herein
shows that Houk's qualifications and experience surpassed those of a
number of employees subsequently hired.
ing this contention. Thus, I conclude that Respondent
has not met its burden of proof under Wright Line.
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(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. Respondent has violated Section 8(a)(1) and (3) of
the Act by failing and refusing to hire Cheryl Houk in
March 1983.
4. The aforesaid unfair labor practice is an unfair labor
practice affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent violated and is violat-
ing Section 8(a)(1) and (3) of the Act, I recommend that
it be required to cease and desist therefrom and from in
any like or related manner interfering with, restraining,
or coercing its employees in the exercise of their rights
under Section 7 of the Act, and to take certain affirma-
tive action described herein, including the posting of an
appropriate notice attached hereto as an appendix.
Having found that Respondent unlawfully failed and
refused to hire employee Cheryl Houk, it is recommend-
ed that Respondent offer her immediate employment to
the position for which she is qualified and make her
whole, with interest, for any loss of pay she may have
suffered as a result of the discrimination against her.
Backpay is to be computed in the manner prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida
Steel Corp., 231 NLRB 651 (1977). See generally Isis
Plumbing Co., 138 NLRB 716 (1962).
IT IS FURTHER RECOMMENDED that Respondent ex-
punge from its records any reference to the foregoing
unlawful failure to hire Houk and advise her that it has
done so. See Sterling Sugars, 261 NLRB 472 (1982).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed7
ORDER
The Respondent, Diamond International Corporation,
Red Bluff, California, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Failing and refusing to hire employees in retaliation
for the lawful union activity of union representatives.
(b) In any other manner interfering with, restraining,
or coercing employees in the exercise of their rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act.
I 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.
1056
DIAMOND INTERNATIONAL CORP.
(a) Offer employment to employee Cheryl Houk at
Respondent's Red Bluff facility, and make her whole in
the manner set forth in the section of this decision enti-
tled "The Remedy." In this connection, the Respondent
shall preserve and, on request, make available to the
Board or its agents for examination and copying, all
records, including the payroll records of other employ-
ees, necessary to analyze and compute the amount of
backpay due.
(b) Expunge from its records any reference to the un-
lawful failure to hire the said employee.
(c) Post at its Red Bluff and Chico, California facili-
ties8 copies of the attached notice marked "Appendix." 9
8 As the unfair labor practices found herein affect the rights of em-
ployees at both the Red Bluff and Chico facilities of Respondent, it ap-
pears that posting of notices at both facilities is necessary to remedy the
violation and advise employees of their right to be considered for em-
ployment and hired at either facility in a nondiscriminatory manner.
Copies of the notice, on forms provided by Regional Di-
rector for Region 20, after being signed by the Respond-
ent's authorized representative, shall be posted by it im-
mediately upon receipt and maintained for 60 consccu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
9 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 Order of the Nation-
al Labor Relations Board."
1057