Five Star Air Freight Corporation

National Labor Relations Board - Board Decisions

Sep 21, 1979

245 N.L.R.B. 173 (N.L.R.B. 1979)

FIVE STAR AIR FREIGHT CORPORATION
Five Star Air Freight Corporation and Local 161, In-
ternational Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America. Case 4-
CA-9636
September 21, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On June 26, 1979, Administrative Law Judge Rob-
ert A. Giannasi issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief. The General Counsel filed a
brief in opposition to Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions 2 of the Administrative Law Judge and to
adopt his recommended Order.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that Respondent, Five Star Air Freight
Corporation, Essington, Pennsylvania, its officers,
I Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544
(1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
2 In the absence of exceptions thereto, we hereby adopt pro forma the
Administrative Law Judge's dismissal of par. 5(b) of the complaint, which
alleges that on August 15. 1979. Department Head Joseph Cirella threatened
employees with discharge if they supported the Union.
Respondent contends in its exceptions that the Administrative Law Judge
improperly relied on Respondent's failure to raise Paterson's supervisory
status in its answer. Although it is not clear that the Administrative Law
Judge relied on such failure, we find it unnecessary to, and do not, rely on
the fact that Respondent first raised this issue at the hearing.
3The Administrative Law Judge recommended that Respondent cease
and desist from "in any other manner" interfering with the employees' Sec. 7
rights. We find that the issuance of a broad order is warranted in this case.
Thus, Respondent unlawfully discharged five employees. Three of the dis-
charges constituted Respondent's entire accounts receivable staff. Further-
more, there were extensive interrogations by not only Department Head
Cirella but also Respondent's president, Donald Pettinelli. In addition, there
were threats of discharge. Thus, we find Respondent's unlawful conduct to
be sufficiently egregious and widespread to warrant a broad order. Cf. Hick-
mott Foods, Inc., 242 NLRB 1357 (1979).
agents, successors, and assigns, shall take the action
set forth in said recommended Order.
DECISION
STATEMENT OF itlE CASE
ROBERT A. GIANNASI, Administrative Law Judge: This
case was heard before me in Philadelphia. Pennsylvania. on
April 9 and 10. 1979. The complaint, as amended. including
at the hearing, alleges that Five Star Air Freight Corpora-
tion (herein called Respondent) violated Section 8(a)(3) and
(I) of the Act by terminating the employment of five union
adherents and violated Section 8(a)( 1 ) of the Act by various
incidents of threats and coercion. Respondent denied the
allegations in the complaint. The General Counsel and Re-
spondent filed proposed findings of fact and conclusions of
law and supporting memoranda.
Based on the entire record in this case, including the tes-
timony of the witnesses and their demeanor. I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENI
Respondent is a corporation engaged in the business of
airfreight forwarding and maintains a facility located in Es-
sington. Pennsylvania. During the past year Respondent
had gross revenues in excess of $500,000 and purchased
goods valued in excess of $50.000 directly from points lo-
cated outside of the Commonwealth of Pennsylvania. Ac-
cordingly, I find, as admitted in the answer, that Respon-
dent is an employer engaged in commerce ithin the
meaning of Section 2(6) and (7) of the Act.
It. TE I.ABOR ORGANIZATION INX().VED
Local 161. International Brotherhood of Teamsters.
Chauffeurs, Warehousemen, and Helpers of America, the
Charging Party Union (hereafter referred to as the Union),
is a labor organization within the meaning of the Act.
ttl. THE UNFAIR LABOR PRA(TI(CES
A. The Facts
At all material times herein, until September 1978. Re-
spondent operated in rather cramped facilities in Sharon
Hill. Pennsylvania. A move was contemplated to a newl
constructed facility in Essington, Pennsylvania. The move
took place in September 1978. At its Sharon Hill facility.
Respondent had several departments, including the ac-
counts receivable and accounts payable department under
Department Head Joseph Cirella. There were 14 accounts
receivable employees and 3 accounts payable clerks. The
claims department was composed of two people, Supervisor
David Kemp and employee Romelle Thompson. The traffic
and rates department had two employees. and the data pro-
cessing department had five. including one, Florence Chap-
pell, whom General Manager Dennis Gunn described as a
245 NLRB No. 37
173
DEC(ISIONS OF NATIONAL LABOR RELATIONS BOARD
supervisor. Other departments, not directly involved in this
case, including operations and sales. Some of the employ-
ees. including the accounts receivable and accounts payable
employees, worked in the main building, and others worked
in trailers adjacent to the main building.
During July' 1978 there was some talk about unions
among employees of Respondent. On August 9, 1978, em-
ployees Romelle Thompson, Anna D'Annunzio, Janet Pat-
erson, Doris Cornish, and Selina McKeon participated in a
conversation about unions in Respondent's accounts pay-
able office. Paterson, C'ornish, and McKeon constituted the
entire accounts payable department. Thompson was an
agent in the claims department, and D'Annunzio was em-
ployed as a traffic and rate clerk in the traffic department.
Thompson and D'Annunzio worked in the same trailer and
were passing through the accounts payable office. Joseph
Cirella, manager of the accouts receivable and accounts
payable department, had his office just a short distance
away from where the employees were speaking.
During the conversation Thompson discussed her prior
employment at the Boeing-Vertol Company. She stated
that that company was unionized and that the pay scale
and benefits were good. Thompson said that Respondent
needed a union. Later that day, after speaking with Pater-
son, employee Cornish got in touch with Edward Kaiser, an
official of the Union. A meeting of employees was sched-
uled for Monday, August 14, 1978.
The next day Cirella called Paterson into his office and
asked her if Thompson had said anything to her about a
union. Paterson said that they had been discussing the
union at Thompson's prior place of employment. Cirella
then began to tell her about his previous job at Tose Truck-
ing. He stated that after a union came on the scene. the staff
was reduced by almost 50 percent, and the accounts receiv-
able and collection work was farmed out to collection agen-
cies.
On Monday, August 14, 1978, Thompson was informed
by her supervisor, David Kemp, that she was laid off due to
lack of work and because the claims and traffic departments
would be merging. Prior to that day Thompson had never
been told about a decision to merge the departments or that
her layoff was threatened or impending. She was not re-
placed. and Kemp. who was doing some traffic and rate
work, took over all the claims work.
On the same day Thompson was laid off, a meeting had
been scheduled with Kaiser. Cornish spoke with McKeon.
Paterson, and Florence (Dee Dee) Chappell about resched-
uling the date of the union meeting. It was rescheduled to
Wednesday, August 16.
Shortly after Thompson's termination Cirella again
spoke with Paterson. He asked if she had heard about
Thompson. He asked what Paterson thought was the reason
for the layoff. She responded, "[L]ack of work," because she
had heard that this is what Thompson was told. Cirella
asked, "[W]hat do you think about that?" Paterson
shrugged and did not respond. Cirella also spoke to the
other employees in the accounts payable office about
unions. He again discussed his experiences at Tose Truck-
ing and mentioned that unions force people to lose their
jobs and force employers to farm out their work.
On Wednesday, August 16. 1978, a meeting was held at
Union Representative Kaiser's house. Present were Kaiser.
(ornish. Paterson, Thompson, and another union official.
Authorization cards were distributed and signed. Addi-
tional cards were given to Cornish for distribution to other
employees. After the meeting Cornish distributed union
cards to approximately eight employees, including D'An-
nunz.io and McKeon. McKeon then solicited the signature
of another employee and returned the card to Cornish.
On Friday, August 18, McKeon and Paterson engaged in
a conversation with ('irella in the accounts payable office.
('irella informed the employees that they were scheduled to
tour Respondent's new facility the following week. The
three engaged in some joking conversation. The subject of
unions was mentioned. Cirella remarked to Paterson.
"IWlatch it 'J,' you're going to be fired." McKeon then
stated that Paterson had not done anything and asked what
Cirella meant. He then turned to her and told her to watch
herself. Cirella's testimony is as follows: "It was a light mo-
ment, and I swung around --they were kidding about some-
thing irrelevant to unions, and somebody says, I think I'll
join a union and I said, you're fired, and then somebody
else said it and I swung around and said, you're fired, too
and we laughed about it and that was it." Cirella admit-
tedly knew the day before that a decision had been made to
lay off his three accounts payable clerks.
On August 19 and 20, 1978, employees D'Annunzio,
McKeon. Cornish, and Paterson were sent telegrams notify-
ing them that they were laid off. The telegrams stated that
the employees should contact Respondent "so that a time
can be arranged for you to claim any personal effects and
final compensation." No official from Respondent spoke to
these employees about the telegrams, and no reason was
given for the layofifs. None of the employees had been given
any advance warning that their layoffs or terminations were
impending.
On Monday. August 21, 1978, Donald Pettinelli. pres-
ident and part owner of' Respondent, directed Cirella to
telephone employee Rosemary Fellona at her home. Fel-
lona was on maternity leave at the time. The conversation
began with (irella stating that they had been friends for a
long time and directing Fellona to "tell me what you
know." Fellona asked what he meant. and Cirella asked if
she had heard about Paterson. Following a negative re-
sponse, Cirella said that Paterson and Cornish were instiga-
tors in a unionization attempt. Fellona was then asked if
she had signed anything. She said she had not, even though
she had previously signed a union card, and asked Cirella
why he was so upset about the union matter. Cirella replied
that Respondent "did not need" a union. He then asked if
Fellona would be willing to come in to cover for his secre-
tary, who was going on vacation. The person who usually
filled in for the secretary was performing Janet Paterson's
work at the time.
Pettinelli was present while Cirella was making his call to
Fellona. Later. Pettinelli individually met with a number of
employees and asked each of them what he or she knew
about the union organization campaign and whether he or
she had been solicited.
After Respondent moved to its new facilities in Septem-
ber 1978, Fellona spoke with Cirella on several occasions.
174
FIVE STAR AIR FREIGHT CORPORATION
He asked if she had heard from her "girlfriend," meaning
Paterson, attributed some of his health problems to Pater-
son, and remarked that if Paterson had only come to him,
he could have saved her job.
After the layoff of the accounts payable clerks, several
accounts receivable employees under Cirella performed the
accounts payable work along with Cirella himself. This oc-
casioned an increase in the use of overtime. The accounts
payable department remained under Cirella's control for
about 3 months after the layoffs before it was merged into a
new department under a new supervisor. The three ac-
counts payable clerks were replaced on September 18, 1978.
by three new employees. None had previous experience in
traffic, rates, or accounts payable.
In January 1979 there were three accounts payable clerks
on Respondent's payroll. One of these was D'Annunzio,
who was recalled on September 25, 1978, after having sent
a letter to Kaiser asking him to return to her the union
authorization card that she had signed in August. She was
told that the traffic department was expanding by its new
manager, Frank Sisliano. One of the other new accounts
payable clerks was given a raise in January 1979, after a 90-
day evaluation which stated that she "does not catch on as
quickly" as another clerk because "she has been out of the
working world for many years."
General Manager Dennis Gunn admitted that besides
the employees laid off in August 1978, only one other em-
ployee, Mary Jane Crane, had been laid off since 1975.
Other evidence in this case indicates that Mary Jane Crane
was laid off not for economic reasons but because of a bad
work record.'
B. Discussion and Analrsis
1. The 8(a)(1) violations
The credited testimony discussed above establishes that
Respondent violated the Act by the following conduct:
1. Cirella's interrogation of employee Paterson about
union discussions between her and other employees.
2. Cirella's threat to employees Paterson and McKeon,
on their last day of work, that they would be fired, in cir-
cumstances which clearly indicated that the reason was
their union activity. Even though the comment was made in
the context of a friendly conversation, in the circumstances
of this case it had the tendency to coerce the employees.
The above is primanly based on the credited testimony of employees
Paterson, Cornish. McKeon, Thompson. and Fellona, whom I found to be
honest and candid witnesses and whose testimony in certain respects was
mutually corroborative. Cirella corroborated them in part and did not deny
other parts of their testimony. To the extent that there are conflicts between
his testimony and that of Paterson. Cornish, McKeon. and Fellona. I do not
credit Cirella, whose testimony I found to be contrived and unreliable. Par-
ticularly contrived was his effort to establish that Paterson was a supervisor,
contrary to all objective evidence in this case. Also unreliable was the testi-
mony of Dennis Gunn and employee D'Annunzio. who was recalled after
she foresook the Union and was a reluctant witness. Both were evasive wit-
nesses whose demeanor and testimony did not inspire confidence. Gunn was
particularly evasive on testifying about the timing of the layoffs, particularly
Thompson's, his telegram to D'Annunzio, and the timing of the other lay-
offs. Pettinelli professed not to be involved in an) of the personnel decisions.
but his rather direct reaction to the union campaign is a telling indicator of
Respondent's motives in this case.
Cirella had, in several conversations with employees prior
to the threat, exhibited the dangers of bringing a union on
the scene and questioned Paterson about the union conver-
sation with Thompson and again about Thompson's termi-
nation. Moreover, Paterson and McKeon were in fact ter-
minated the very day after the threat was made.
Accordingly. Cirella's remarks were not only revealing but
coercive.
3. Cirella's telephonic interrogation of employee Fellona
as to the union activities of her and others.
4. President Pettinelli's separate interrogations of em-
ployees about their knowledge of the union campaign and
their participation in it. Pettinelli admitted such conduct.
and in the circumstances I find that the matter was fulls
litigated and related to the issues in the complaint, although
not specifically alleged in the complaint.
5. 1 do not find that Cirella's ambiguous remarks in an
August 15. 1978. conversation with Paterson about Thomp-
son's discharge amounted to a threat of discharge. and
therefore I will dismiss this aspect of the complaint. 2
2. The 8(a)(3) violations
Respondent's "layoffs" of the three accounts payable
clerks and the claims clerk. Romelle Thompson, were dis-
criminatory. All participated in a conversation about
unions on August 9, 1978. Thompson suggested forming a
union. Paterson and Cornish decided on contacting a union
official and setting up a union meeting. All signed union
cards. Paterson. Cornish. and Thompson attended the
union meeting, and McKeon solicited another employee to
I reject Respondent's contention made not in Its answer hut at the
hearing in this case that Paterson was a supervisor within the meaning of
the Act. Paterson was an employee.
Paterson was evaluated periodically, and nothing in those evaluations, the
last of which is dated June 5. 1978. makes reference to her being a supervi-
sor; they list her as a clerk, and the description of duties contains no super-
visory powers
Paterson does not assign work to other employees. No assignmeni of work
is necessary. since all incoming paperwork is routed to the accounts payable
clerk responsible for either airlines, trucking. or agent work. Paterson does
not grant overtime or time off. although she did relay request for time off to
Cirella, her supervisor. She has no authonty to discipline or formally evalu-
ate employees She was the most senior and highest paid of the three ac-
counts payable clerks. As such, Paterson answered questions from and filled
out sick leave slips for the other accounts payable clerks. These. however.
were simply routine clerical functions or the normal responsibility of a senior
experienced employee.
Respondent alleges that Paterson effectively recommended the hiring of
employees and their discharge. The record. however, reflects only three ex-
amples, which do not sustain Respondent's position. In November 1977 Ci-
rella interviewed an employee for hire, and Paterson sat in on the interview.
Later .irella asked her what she thought of the applicant. Paterson recom-
mended that she be hired, and Cirella hired her. Cirella also discussed the
performance of two employees with Paterson. and one, Mary Jane Crane,
was laid off for breaking company rules. Cirella asked Paterson to write up
problems attributed to Crane, and she did. recommending Crane's discharge.
Nothing in this testimony shows the authority to effectively recommend hire
or discharge using independent judgment. In addition, the incidents are iso-
lated, and the recommendations, if an. were made at the request of Clrella.
They do not show real authority to speak independents as an arm of man-
agement. Nor was Paterson ever told she was a supervisor, and her evalu-
ations never said she was. In addition, the circumstances of her termination
belie the contention that Paterson was a supervisor. She was fired without
pnor warning, and no supervisor replaced her, esen though there are pres-
ently three accounts payable clerks, as there were when she was employed.
Finally. I found the testimony of Gunn and Clrella attempting to establish
Paterson's supervisory status to be wholly unreliable
175
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sign a card. Thus, it is clear that these four employed initi-
ated the union activity.
The timing of the terminations supports the inference
that they were discriminatorily motivated. All four employ-
ees were fired about a week after the initial attempt to start
a union. The initial conversation was on August 9. The next
day Cirella interrogated Paterson and Thompson's remarks
concerning a union. The union meeting was initially sched-
uled for August 14, and employees, including Supervisor
Chappell, were notified of the meeting. Thompson was ter-
minated that day, without prior warning. The union meet-
ing was held on August 16, and Gunn and Cirella conceded
that the decision to lay off the other three employees was
made on August 17. On August 18 Cirella accurately fore-
cast their termination. But no prior warning of or explana-
tion for the layoffs was given to the affected employees, and
they were terminated over the weekend, by telegram. The
suddenness and timing of the terminations thus support the
inference that they were discriminatorily motivated.
Respondent's union animus and knowledge of the union
activity is clear. Cirella interrogated Paterson about the ini-
tial union conversation which took place near his office.
Cirella also spoke to all three accounts payable clerks about
the negative effects of unionization at his previous employ-
er's place of business, even suggesting that collection work
was farmed out. Cirella also threatened that two employees
would be fired for belonging to a union. Thus, perhaps un-
wittingly, Cirella revealed to the employees Respondent's
real motivation in terminating the accounts payable clerks.
Cirella knew at this point that a decision had already been
made to terminate the accounts receivable employees, but
did not reveal it to them or tell them a lawful reason for
their impending termination.
It is obvious that Cirella, at least, knew of the union
activity of Thompson, Paterson, McKeon, and Cornish. In
addition, it appears that the employees shared their interest
in forming a union with Supervisor Chappell, who eventu-
ally informed President Pettinelli of this effort. Pettinelli's
immediate response-directing a call to employee Fellona
and interrogating a group of employees about the Union-
indicates the apprehension with which Respondent viewed
a union campaign. Finally, according to the credited testi-
mony, Cirella, in his telephone conversation with Fellona,
all but admitted that Paterson and Cornish were fired for
instigating a union. Indeed, upon her return to work Fel-
lona was asked by Supervisor Marge McCarty whether she
heard about the girls who started the Union.
The circumstances surrounding the "layoffs" confirm
their discriminatory nature. The accounts payable clerks
were not even warned about an impending layoff-even on
Friday, when Cirella threatened they would be fired for
joining a union, a day after the decision to terminate them
had been made. Moreover, it is clear that the layoffs were
really discharges, because none of the employees was re-
called, even though the accounts payable clerks were re-
placed by inexperienced employees within I month. Fi-
nally, the telegrams notifying the accounts payable clerks of
their layoffs gave no reason and suggested a finality to the
action which is inconsistent with a layoff based on business
reasons. In short, Respondent's sudden termination of the
leaders in the union effort at its facility within 10 days of
the beginning of that activity, taken together with Respon-
dent's animus against the Union expressed by Cirella,
shows that the terminations were because of the employees'
union activity.
Respondent's defenses are unpersuasive, and the failure
of its reasons for the terminations to withstand scrutiny
supports my finding of discrimination.
First of all, Respondent alleges that Thompson was laid
off because of lack of work in the claims department. Gen-
eral Manager Gunn testified that David Kemp took over all
Thompson's duties and that Thompson was not replaced.
He also testified that this change was occasioned by a "re-
structing [sic] of the claims department"-a decision made
"several weeks" prior to the layoff. Gunn was evasive when
asked about the timing of the layoff. If the decision was
made several weeks before the layoff, why was Thompson
not given any advance notice of the impending layoff? On
the other hand, if, as Gunn also testified, he was going to
consolidate departments "after we got into the new facil-
ity," why was Thompson terminated well before the move
to the new facility? Kemp did not testify, and no documen-
tary evidence was submitted to show a diminution in the
claims work. The layoff had nothing to do with Thompson's
work record. In these circumstances Respondent has failed
to give any adequate reason for Thompson's layoff to rebut
the evidence that the sudden layoff, without prior warning,
of the leading union advocate shortly after her suggestion
that a union be fored was discriminatory.
Respondent's explanation for the layoffs of the three ac-
counts payable clerks is likewise without merit. Respondent
states that the accounts payable department was going to
be merged into the traffic and rates department after the
move and that the three incumbent employees would need
rate experience to better perform their jobs, and it was
thought that they were incapable of learning rate work. The
objective evidence refutes all these contentions. First, in an
August 2 letter to the owners, Gunn explicitly stated that he
could not make any reorganizational changes until after the
move--which took place in September-because he was so
preoccupied with the move. In that letter he did not men-
tion that the accounts payable clerks were too incompetent
to make any necessary readjustments.
Gunn contended that Paterson, Cornish, and McKeon
lacked the ability and experience to learn rate work. Yet he
never even consulted the employees' evaluation forms or
told them of their alleged incompetence. Indeed, Paterson's
evaluations, which were admitted into evidence, indicate
she was a veteran, competent, and highly regarded em-
ployee. She was so highly regarded that Respondent asked
for her opinion on all sorts of work-related matters and
argued in this proceeding that she was so valued that she
was a supervisor-an anomalous position explainable only
by the fact that the discharge of a supervisor is normally
not an unfair labor practice. Respondent's story is rendered
completely implausible by the fact that it hired three new
accounts payable clerks, one of whom was so inexperienced
that this fact was noted on her first evaluation and none of
whom had traffic or rate experience. Moreover, for 2 or 3
months following the layoffs, accounts receivable personnel
performed the accounts payable function. Obviously, they
did not have traffic experience or any sort of experience in
176
FIVE STAR AIR FREIGHT CORPORATION
accounts payable work. Indeed, the alleged reorganization
did not even take place for 3 months after the layoffs. Ac-
cordingly. it is clear that Respondent's argument that the
accounts payable clerks were somehow incompetent is com-
pletely without merit.'
In view of my findings set forth above that Respondent
unlawfully terminated employees Thompson Paterson.
Cornish. and McKeon, I also find that Respondent in-
cluded employee D'Annunzio in its blanket layoffs because
it believed that she too was a union instigator. She partici-
pated in the union conversation in the accounts payable
department, worked in the same trailer with Thompson,
and signed a union card. She was laid off under the same
circumstances and at the same time as the accounts payable
clerks. Her telegram contained the same language as the
others. She was not warned in advance of her impending
discharge. It is thus likely that she was laid off for the same
reason -a desire by Respondent to rid itself of union insti-
gators.
Respondent sought to counter this evidence at the hear-
ing by introducing testimony based on the testimony of
Gunn and D'Annunzio, both of whom were unreliable wit-
nesses, that the reason for D'Annunzio's termination was
that she had contracted mononucleosis and had failed to
present a doctor's note certifying her fitness for work. Thus,
it appears that D'Annunzio missed I week of work in Au-
gust due to illness. She returned to work on Monday, Au-
gust 14, and worked for 3 days. At some point she informed
her superior, Tom Kiley, that she had mononucleosis. On
Wednesday, August 16, she asked Kiley if she could be
excused from work because she did not feel well. Kiley told
her that she should not return to work until she was able to
present a doctor's note. D'Annunzio did not return to work
that week. On August 19 D'Annunzio received a telegram
from Gunn informing her that she had been laid off and
requesting that she make arrangements to collect her per-
sonal effects and final compensation. At some point during
the next month she sent a letter to Union Representative
Kaiser requesting that he return her union card. On Sep-
tember 25. 1978, D'Annunzio returned to work. She had
received a telegram recalling her. and on the previous Fri-
day she had received a note from her doctor allowing her to
go back to work. On her first day back she met with Gunn.
who informed her that her layoff was due to her illness.
Gunn testified that when he first learned of D'Annunzio's
illness, he told Kiley not to allow her to continue work
Respondent makes much of an alleged $400,000 deficit in 1977 which
required transferring accounts payable to the traffic department. Respondent
alleges that the deficit, which represented the difference between estimated
costs and actual billings from the carrier, was reduced to $61.000 in 1978.
There is no evidence that this deficit was attributable to incompetence on the
pan of the accounts payable clerks. Admittedly, the deficit was caused. in
partn, by other factors such as underestimates by field personnel or over-
changes by the carner. Moreover. since the deficit was reduced significantly
in 1978, it is likely that the incumbent accounts payable clerks either aided in
the reduction of the deficit they worked for three-fourths of 1978 or had
nothing to do with the deficit. It is unlikely that the deficit as reduced
entirely in the last quarter of 1978. under Cirella's continued supervision.
considering the obvious problems with the move and utilization of tempo-
rary and new employees for the accounts payable function In shor. Respon-
dent has failed to show that the alleged deficits were caused by the accounts
payable clerks, who in any event were never told that their work was not
being ably performed.
without a doctor's note. However. (unn decided to send a
telegram to D'Annunzio. The telegram contains no refer-
ence to either her illness or a doctor's note. Rather, the
telegram is identical i form to those sent to the accounts
payable clerks. It mentions D'Annunzio's layoff and con-
tains references to "final compensation" and to claiming
any personal effects still on the premises. When confronted
with this inconsistenc y, (iunn could only offer the lame ex-
cuse that the telegram was an afterthought and that out of
haste he included the same wording as contained in the
others.
I reject the testimony of Gunn and D'Annunzio to the
effect that the hiatus in her employmnent from August 16 to
September 25 was temporary. D'Annunzio's request ftr the
return of her union authorization card raises questions
about the true nature of her layoff. The letter states that she
was in the process of seeking new employment and had
secured a new position. Obviousl,-. she did not believe that
all she needed to do to come back to work was to secure a
doctor's excuse. This strongly suggests that D'Annunzio's
layoff was permanent. as indicated in the telegram.
In addition. D'Annunzio's testimony concerning possible
contacts between her and Respondent between the times of
her layoff and recall is completely unreliable and inconsis-
tent. She was quite emphatic at some points in her testi-
mony that she had no contacts with Respondent between
her layoff and her recall on September 25. However, D'An-
nunzio also testified that she was recalled shortl, after she
secured a doctor's note but that she never informed Re-
spondent that she had secured a doctor's note before being
recalled. At one point she testified that after being sent a
September 25 telegram recalling her to work. she called
Gunn to inquire about her return to work and at that point
informed him that she had a note. Gunn testified he never
spoke with D'Annunzio but instructed a supervisor to con-
tact her about the note. It appears that D'Annunzio was
recalled before Respondent had any notification of her
health status. It is clear, moreover, that she was recalled
after she renounced the Union. In these circumstances I
cannot accept her testimony or that of Gunn as establishing
a nondiscriminatory reason for the original layoff. She was
recalled after having rejected the Union, and neither her
testimony nor that of (iunn is believable in establishing a
nondiscriminatory reason for the original la off.
CoN(CIlUSIONS oi LAw
I. By interrogating employees about their union activi-
ties and those of other employees and by threatening to
discharge employees because of their union activities, Re-
spondent violated Section 8(a)( 1 ) of the Act.
2. By terminating the employment of Janet Paterson.
Romelle Thompson, Anna D'Annunzio. [Doris ('ornish.
and Selina McKeon because of their union activities. Re-
spondent violated Section 8(a)(3) and (I ) of the Act.
3. The above violations are unfair labor practices within
the meaning of Section 2(6) and (7) of the Act.
Til RistiI)
I shall order Respondent to cease and desist from the
conduct found unlaw ful herein and to post an appropriate
177
DEC('ISIONS O()F NATIONAI I.ABOR REI.ATIONS BOAR[)
notice. I shall also order Respondent to offer all the dis-
criminatees except D'Annunzio. who has been reinstat-
ed full and immediate reinstatement to their former jobs
or, i those jobs no longer exist, to substantially equivalent
positions. without prejudice to their seniority or other bene-
fits, rights, and privileges, and make them and )D'Annunzio
whole for all losses of earnings and benefits caused by Re-
spondent's unlawful termination, to be computed as pro-
vided in FA 14'. Woolworth ('ompaitV. 90 NLRB 289 (1977).
and Florida Steel Corp.. 231 NLRB 651 (1977). See. gener-
ally'. i. Plumbing & Heating Co.. 135 NLRB 716 (1962).4
Upon the foregoing findings of fct and conclusions of
law, and pursuant to Section 10(c) of the Act. I hereby issue
the following recommended:
ORD)ER'
The Respondent, Five Star Air Freight Corporation. Es-
sington, Pennsylvania, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Terminating employees or discriminating against
them in regard to their hire or tenure of employment or any
term or condition of employment because they have en-
gaged in activities on behalf of a labor organization.
(b) Interrogating employees about their union activities
or those of other employees.
(c) Threatening employees with discharge or other repri-
sals for engaging in union activities.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights guaran-
teed them under Section 7 of the Act.
2. Take the following affirmative action, which is neces-
sary to effectuate the policies of the Act:
(a) Offer to Janet Paterson. Romelle Thompson, Selina
McKeon, and Doris Cornish full and immediate reinstate-
ment to their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or toher rights and privileges, and make them
and Anna D'Annunzio whole for any loss of earnings they
may have suffered as a result of their discriminatory termi-
nations in the manner set forth in the section herein entitled
"Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
'Although D'Annunzio's testimony suggests it was unlikely that she
would have been fit for employment from August 19, 1978. to September 25.
1978, 1 leave the backpay liability. if any, with respect to her to the compli-
ance stage of this proceeding.
In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings. conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
roll and other records necessary or useful in order to ana-
lyze and determine the amount of backpay due under this
Order.
(c) Post at its offices in Essington, Pennsylvania. copies
of' the notice attached hereto marked "Appendix. "" ('opies
of said notice. to be furnished by the Regional Director for
Region 4, shall, after being duly signed by Respondent's
representative, be posted by it immediately upon receipt.
and maintained for 60 consecutive days thereafter. in con-
spicuou!; places. including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 4. in writ-
ing. within 20 days from the date of this Decision what
steps Respondent has taken to comply herewith.
I In the event that this Order is enlorced by a Judgment of a United States
Courl of Appeals, the words in the notice reading "Posted bh Order of the
National L.abor Relations Board'" hall read "Posted Pursuant toI a Judgment
of the United States Court of Appeals Enforcing an Order of the National
l.abor Relalions Board."
APPENDIX
No I(' To EMPI.OYEES
Pos:I), BY ORDER OF TtEI
NAI'IONAI. LABOR RILA.TIONs BOARD
An Agency of the United States Government
After a hearing in which all sides had the opportunity to
give evidence, an administrative law judge of the National
Labor Relations Board has found that we violated the Na-
tional Labor Relations Act and has ordered us to post this
notice.
WE WILL.. NOI terminate or discriminate against our
employees in regard to their hire or tenure of employ-
ment or any term or condition of their employment
because they have engaged in activities on behalf of a
labor organization.
WE WIltl. NOt interrogate our employees about their
union activities or those of other employees.
WF wnii. Noi threaten our employees with discharge
or other reprisals because they engage in union activi-
ties.
WE WILt. NOI in any other manner interfere with,
restrain, or coerce our employees in the exercise of' the
rights guaranteed them under Section 7 of the Act.
WE WHLi. offer to Janet Paterson, Doris Cornish. Ro-
melle Thompson, and Selina McKeon full reinstate-
ment to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, and pay
them and Anna D'Annunzio for any loss of earnings
they may have suffered because of our discrimination
against them, with interest.
FIVE SIAR AIR FREIGHII CORPORA ION
178