Five Star Air Freight Corporation

National Labor Relations Board - Board Decisions

Mar 25, 1981

255 N.L.R.B. 275 (N.L.R.B. 1981)

FIVE STAR AIR FREIGHT CORP. 275
Five Star Air Freight Corporation and Local 161,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America.
Case 4-CA-10618
March 25, 1981
DECISION AND ORDER
On November 4, 1980, Administrative Law
Judge Arline Pacht issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, and the General
Counsel filed an answering brief in support of the
Decision of the Administrative Law Judge and in
response to the Respondent's exceptions and brief.
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, find-
ings,l and conclusions of the Administrative Law
Judge and to adopt her recommended Order, as
modified herein. 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Five Star Air Freight, Essington, Pennsylvania, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended
Order, as so modified:
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces 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 her find-
ings. The Administrative Law Judge's Decision contains inadvertent
errors noted herein as follows: (1) in sec. II,C, p. 6, 1. 5, she refers to the
separation from employment of Charlier and Armstrong as July 24. How-
ever, as she finds elsewhere in the Decision, the record indicates they
were advised of their separations on October 24, (2) in sec. IIB, p. 4. I.
7, she refers to October 19, 1980, as the date the employees went to
lunch at a nearby restaurant. The record reveals this luncheon occurred
on October 19, 1979.
In determining that the discharges of Charlier and Armstrong violated
Sec. 8(a)(3), the Administrative Law Judge relied on the principles of
Wright Line, Inc., 251 NLRB 1083 (1980), but concluded that the asserted
legitimate reasons for selecting Charlier and Armstrong were pretextual,
i.e., specious, and thus nonexistent. In such cases, Member Jenkins con-
siders Wright Line, which is designed to separate the weight and effects
of two genuine motives for a discharge, one lawful and one unlawful, is
of little use, since only the unlawful motive is genuine.
2 In her Order, the Administrative Law Judge uses the narrow cease-
and-desist language, "In any like or related manner." However, in the
notice, she uses the broad language of "in any other manner." We shall
modify the recommended Order to contain the "in any other manner"
language in the pertinent provision, as the Respondent has engaged for
the second time in a 2-year period in extensive unfair labor practices and
thus, has shown a proclivity to violate the Act and a general disregard
for the employees' fundamental statutory rights. Hickmott Foods. Inc.. 242
NLRB 1357 (1979).
255 NLRB No. 46
Substitute the following for paragraph (c):
"(c) In any other manner interfering with, re-
straining, or coercing its employees in the exercise
of their rights under Section 7 of the Act."
DECISION
STATEMENT OF THE CASE
ARLINE PACHT, Administrative Law Judge: Upon
charges filed against Five Star Air Freight Corporation
(hereinafter called Respondent), the General Counsel
issued a complaint as amended on July 22, 1980, alleging
that Respondent unlawfully discharged employees Mar-
jorie Charlier and Susan Armstrong and engaged in a
series of reprisals against two other employees, Janet
Patterson and Doris Cornish, who were reinstated pursu-
ant to a prior order, in violation of Section 8(aXI) and
(3) of the National Labor Relations Act (hereinafter
called the Act). Respondent filed timely answers denying
the allegations in the complaints.
Thereafter, on August 4 and 5, 1980, a hearing was
held before me in Philadelphia, Pennsylvania, at which
time all parties were given an opportunity to examine
and cross-examine witnesses.
Based on the entire record in this case,' including the
testimony of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a corporation in the business of forward-
ing air freight, maintains a facility in Essington, Pennsyl-
vania. During the past year, Respondent grossed rev-
enues in excess of 500,000 and purchased goods valued
in excess of 50,000 directly from points located outside
the Commonwealth of Pennsylvania. Accordingly, upon
the foregoing facts, I find, as admitted in the answer,
that Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The Charging Party Union (hereafter referred to as
the Union) is a labor organization within the meaning of
Section 2(5) of the Act.
I After the close of the hearing, the General Counsel moved to correct
the official transcript. Respondent opposed the motion only insofar as it
related to two items: the substitution of "20" for "22" after the word Oc-
tober on p. 265, and the exchange of the words "accounts receivable"
and "accounts payable" on p. 305. It is clear from the entire record, that
these and other unopposed requested changes would accord with what
the witnesses may have intended to state. However, I find no evidence in
extra-record sources including my own notes and personal recollection
which would show that the transcript did not accurately reflect the
words of the various witnesses, albeit misstated. Accordingly, the Gener-
al Counsel's motion with respect to corrections on p. 25, 305, and 314
which fall into the category of substantive changes is denied.
The General Counsel also proposed certain revisions of the transcript
to correct errors where the court reporter inadvertently omitted or mis-
spelled words. Since these changes are of a technical nature and were not
opposed, they are approved. Accordingly, certain errors in the transcript
are hereby noted and corrected.
FIVE STAR AIR FREIGHT CORP.
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Background
Respondent's operation at its Essington, Pennsylvania,
facility, is subdivided into various departments including
accounts receivable, data processing, traffic, sales, and
operations, with a total work force of approximately 50
to 55 employees, including supervisors.
In July 1978, some of Respondent's employees sought
the support of the Union in an effort to organize the
plant. Approximately I month later, four key union pro-
ponents were discharged. Proceedings before the Nation-
al Labor Relations Board resulted in a Decision and
Order (245 NLRB 173) dated September 21, 1979, which
found that the Company had engaged in a series of
unfair labor practices including unlawful threats to and
interrogation of employees and the discharge of the
union supporters. On or about October 13, the Board
notice was posted on the company bulletin board an-
nouncing, among other things, that the discharged em-
ployees had to be offered reinstatement. Three of the
four accepted Respondent's offer of rehire.
B. Renewed Union Activity
Marjorie Charlier was employed by Respondent as a
C.O.D. clerk in the accounts receivable department on
July 21, 1978. She played no role in the initial phase of
the Union's campaign, and, although she received an au-
thorization card, feigned ignorance when questioned
about the union by her then supervisor. However, after
the discharge of the four employees mentioned above,
Charlier maintained contact with the Union's business
representative and spoke to fellow employees in defense
of the discharged workers when the occasion arose.
Among the employees to whom Charlier could freely ex-
press her prounion attitudes was Sue Armstrong, hired
into the traffic department in September 1978. Admitted-
ly, both Charlier and Armstrong were guarded in ex-
pressing their views during the pendency of the unfair
labor practice proceeding.
However, the promulgation of the Board notice em-
boldened the women to engage in more overt organiza-
tional efforts. Armstrong and Charlier began contacting
a number of employees and collecting their addresses on
company premises during working hours, explaining that
it was for a mailing annoucing a forthcoming union
meeting and discussing with them the benefits of union
representation. Two of the employees in her department
to whom Armstrong spoke, Dawn Jardine and Marion
Grisafi, expressed disinterest in the Union.
Then, on October 19, 1980, some 15 to 20 employees
went to lunch at a restaurant near the facility. At that
time, in response to a number of questions posed by
Chris Fahey, Charlier spoke of the advantages of union-
ization, mentioning that higher wages were paid by other
companies which were unionized. Armstrong also ex-
pressed her support for the Union, stressing in particular,
the security it could provide for unmarried persons like
herself who had no other source of income. Fahey indi-
cated that she was not in favor of a union.
Fahey returned to her office and, admittedly upset by
her luncheon conversation, immediately told coworker
Cass Majey that there were union grumblings again, and
reviewed what Charlier and Armstrong had said in
behalf of the Union. Fahey could not recall whether
Maureen Cratty, then assistant personnel director2 whose
desk was close by, was present during her conversation
with Majey. Cratty denied overhearing Fahey, suggest-
ing that her desk radio which she plays at a high
volume, together with other office noises, might have
prevented her from hearing this or other conversations
about union activity in the plant. Cratty acknowledged
that she was friendly with both Fahey and Majey and
chatted with them about personal matters during the
day, but socialized only with Majey after working hours.
C. The Discharges
Of the three previously discharged employees who ac-
cepted reinstatement, one was placed in the data process-
ing department where a vacancy existed. However, in
order to make room for the two other returning employ-
ees, Doris Cornish and Janet Patterson, Respondent de-
termined it would have to terminate two current em-
ployees whose rates of pay were comparable and whose
jobs were similar to those previously performed by Cor-
nish and Patterson.
Dennis Gunn, vice president and general manager of
the Company, took on the task of identifying an employ-
ee for discharge from the accounts receivable department
and asked Frank Siciliano, manager of the traffic depart-
ment, to select someone from his staff. Gunn testified
that, approximately a week before the terminations actu-
ally occurred, he asked Maureen Cratty for the person-
nel folders of employees in accounts receivable. After re-
viewing these files, Gunn stated that he picked Charlier
for discharge based on his assessment of her work evalu-
ation, absentee record, and general attitude. In particular,
Gunn referred to an incident which he said occurred
early in the year, when Siciliano had complained about
several employees, including Charlier, presenting them-
selves in his department and disrupting the work of his
staff. He regarded Charlier's attitude, that this is the
manner in which she conducted herself on the job, as
less than satisfactory and characterized her work as me-
diocre. He admitted paying little attention to the July
1979 evaluation in her folder on which Marge McCarty,
her immediate supervisor, gave her an outstanding rating
in 3 of 11 categories, and very good in 7 others. Several
comments about the necessity to improve her attendance
also appeared in the file. Although he did not examine
the daily attendance cards in Charlier's folder and was
unaware that she had been hospitalized for 2 weeks in
September, he stated that he had a generalized view of
her absenteeism and that this was one of several adverse
factors which figured in his selection process.
Some 3 or 4 days prior to October 24, after he decided
that Charlier would be terminated, Gunn testified that he
advised Cratty of his choice and asked her to prepare a
list documenting the absences of other employees in ac-
2 Cratty was promoted to personnel manager in January 1980,
__.
FIVE STAR AIR FREIGHT CORP. 277
counts receivable so that he might compare their records
with that of Charlier. 3
Cratty's recollection of the events surrounding Char-
lier's selection is that she and Gunn reviewed the person-
nel folders of accounts receivable employees together.
At one point in the hearing, she testified that she and
Gunn mutually chose Charlier for discharge, and, at an-
other time, stated that she was not advised that Charlier
or Armstrong would be dismissed until October 23.
In selecting an employee from the traffic department
for termination, Siciliano explained that he narrowed the
notice to three women in comparable positions: Arm-
strong, Jardine, who was employed on the same day as
Armstrong, and Grifasi, who was hired 6 months later.
He ultimately selected Armstrong because she was un-
married and had expressed some dissatisfaction with the
size of her last pay raise, whereas the other two women
were married and therefore more likely to be content
with incomes which supplemented those of their hus-
bands. Siciliano reasoned from this that Armstrong was
less likely to be a long-term employee.
At the end of the workday on Wednesday, July 24,
Charlier and Armstrong were advised individually of
their separations. Charlier vehemently protested, and
asked Cratty and McCarty whether they were aware of
the NLRB notice. Their response was that they were not
attempting to prevent her from speaking about union
matters.
The following Monday, Janet Patterson stepped into
the job vacancy created by Charlier's dismissal, assuming
duties which were in some respects different than the
ones she performed in the accounts payable department
prior to her discharge.' Doris Cornish returned on No-
vember 5 and was assigned to Armstrong's former posi-
tion. In May 1980, Patterson voluntarily left Respond-
ent's employ and was replaced with an inexperienced
trainee.
D. Alleged Retaliatory Acts
Janet Brutchi, executive secretary to Respondent's
president and vice president, testified that at midday on
December 18, 1979, while performing some errands at a
shopping center, she encountered Doris Cornish in a de-
partment store dressed in blue jeans and a gold coat. Sus-
picious because Respondent's employees do not wear
jeans to work, Brutchi contacted Cornish's supervisor,
Siciliano, who informed her that Cornish called in sick
that morning. After Brutchi reported this matter to Pet-
tinelli, Cornish was denied sick leave pay for the day.
Cornish contended that she was home ill all day, and
denied being in the department store or owning a gold
coat at that time.
In early January 1980, Cornish asked Siciliano if she
could take a week's vacation starting February 23. She
offered to take the leave without pay but indicated she
needed a response by February 1 so that timely reserva-
a The record shows that, apart from her 2-week hospitalization in Sep-
tember. Charlier was absent II days in 1979. as was employee Pat
Wright. Two other employees were absent 7 days and another one for 4
days.
4The accounts payable department was merged into the traffic depart-
ment prior to the time the material events described herein took place.
tions could be made. Siciliano stated that he had no ob-
jection particularly since there were other employees in
the department who could handle her work. Neverthe-
less, he said he would have to clear the matter with
Gunn.
Relying on a rule in the Company's manual which
provides that vacations shall be taken between April
through September, Gunn initially denied the request.
However, after Cornish spoke to an NLRB compliance
officer about the matter, Gunn reversed himself and on
February 4 granted leave, too late for Cornish to take
her vacation.
On December 26, Janet Patterson telephoned her su-
pervisor, McCarty, and said she was ill and would be
going to a doctor. Later that day, Patterson phoned
Cratty from the physician's office to report that she had
a throat infection and was compelled to remain home an-
other day. Patterson asked if she would like to confirm
this information with the physician, but Cratty responded
that it would be unnecessary.
Subsequently, Cratty withheld Patterson's pay for both
December 24 and 25, pursuant to a company rule which
stated that employees must work the full day immediate-
ly prior to and following a holiday, unless other arrange-
ments have been made with the employee's supervisor.
In March 1980, Patterson was required to take a day
off to attend to her sick daughter. She requested permis-
sion to attribute the day to her vacation leave, rather
than taking off a personal day. Invoking the rule that va-
cations were to be taken between April and September,
Cratty denied Patterson's request.
Then, on or about March 29, Pettinelli summoned Pat-
terson to his office where he accused her of preparing a
letter regarding a forthcoming union meeting on a com-
pany typewriter during working hours, and of reproduc-
ing the letter on the Company's photocopier. Patterson
admitted typing the letter at her desk, but insisted that
she had done so during her lunchbreak and had it repro-
duced outside the plant. During the same interview, Pet-
tinelli stated that he had in his possession signed state-
ments that she was engaging in discussions about the
Union with employees on company time and company
premises. When Patterson denied such activity, Pettinelli
indicated that other employees might have been in-
volved, but, since she was the union spokesman, he
would hold her responsible. He also stated that he did
not know where she had gone wrong several years ago;
that she ought to be channeling her energies into more
productive outlets. The interview terminated with Pettin-
elli advising Patterson that this would constitute her
second warning; that he could fire her for using the
typewriter, but would simply suspend her for 3 days
without pay.
Discussion
A. Discriminatory Discharges
There is no dispute that Respondent was entitled to
reduce its staff in order to create openings for the two
employees it had to reinstate in accordance with the
Board's Order. However, even if this is conceded, the
FIVE STAR AIR FREIGHT CORP.
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
question remains as to whether Charlier and Armstrong
were chosen for discharge because of their union advo-
cacy, or as the Respondent contends, for bona fide busi-
ness considerations.
In dual motive cases such as this, where legitimate and
invidious motives may coexist, the General Counsel
bears the initial burden of making a prima facie showing
sufficient to support the inference that the protected con-
duct of the employees was a motivating factor in the em-
ployer's decision. Once this is accomplished, the burden
shifts to the employer to prove by a preponderance of
the evidence that it would have reached the same deci-
sion even had the employees not been engaged in union
activities. Wright Line, A Division of Wright Line, Inc.,
251 NLRB 1083 (1980).
Fundamental to the General Counsel's case-in-chief is
a showing that the employer had knowledge of the em-
ployees' union activities and that the actions it took
against the employees were motivated by union animus.
Here, the evidence that Respondent harbored antiunion
sentiments and was willing to convert its antipathy into
action could not be more clear. By way of background,
the General Counsel referred to the Board's decision of
September 21, 1979, holding that Respondent engaged in
a series of unfair labor practices including interrogation,
threats, coercion, and discharges of its employees. Thus,
just prior to the terminations at issue here, the Respond-
ent was confronted with a broad order enjoining it from
interfering in any manner with its employees' organiza-
tional rights and to reinstate the employees it had unlaw-
fully ousted for engaging in protected conduct. Five Star
Air Freight, supra. Further, at the hearing in this matter,
the president of the Company admitted that he was op-
posed to the unionization of employees at its Essington
facility. Coupled with his admission, the blatantly antiun-
ion statements which Pettinelli made to Patterson during
his interview with her in April 1980, provide ample
proof that Respondent's antiunion proclivities continued
unabated from the time of the first union campaign until
long after the discharge in question here.5
The record also establishes that Charlier and Arm-
strong were engaged in union activities both in and out-
side the plant. Prior to the issuance of the Board's deci-
sion in September, they were purposely discrete in dis-
closing their support for the Union. Therefore, prior to
September 1979, knowledge cannot be imputed to Re-
spondent. See K. B. Mounting, Inc., 248 NLRB 570
(1980). However, after the Board's notice was posted at
the plant, Charlier and Armstrong believed the situation
had changed. In the week prior to their discharge, they
abandoned caution and spoke about a forthcoming union
meeting with a number of workers during working hours
at the plant. In light of the small size of the facility and
the fact that their conversations occurred at times and in
places which were likely to have been observed by or
reported to supervisory personnel, there is reason to be-
lieve that management soon was aware of their activity
5 Respondent's motion to sever the charges concerning reprisals
against the reinstated employees was denied at the hearing. Upon consid-
eration of the entire record, I am even more convinced that it would be a
fiction to ignore the intimate connection between the various allegations
of the original and amended complaint.
even in the absence of direct proof. Coral Gables Nursing
Home, 234 NLRB 1198 (1978); Malone Knitting Compa-
ny, 152 NLRB 643 (1965), affd. 358 F.2d 880, 883 (st
Cir. 1966); Wiese Plow Welding Company, Inc., 123
NLRB 616 (1959).
Moreover, it is uncontroverted that Chris Fahey im-
mediately related Charlier's and Armstrong's prounion
statements to fellow employee Majey who shared an
office and socialized with Cratty. This does not, of
course, provide concrete evidence that Charlier's and
Armstrong's union efforts came to Respondent's atten-
tion. Indeed, Cratty, Pettinelli, Gunn, and Siciliano
denied any knowledge of the employees' efforts. Howev-
er, I was unconvinced by management's denials. In fact,
their assiduous efforts to disclaim such knowledge led me
to conclude, as did Hamlet, that they protest too much.
Cratty was an evasive witness who appeared to temper
her responses to questions in a manner calculated to
please her superiors. In addition to an unpersuasive de-
meanor, contradictions in her testimony cast doubt on
her veracity. For example, she stated that she played a
radio at her desk quite loudly, implying that this prevent-
ed her from overhearing nearby conversations. Yet, she
also admitted engaging in personal conversations on a
regular basis with the employees sharing her office. At
one point, she stated that she reviewed personnel files
with Gunn and that they mutually arrived at the decision
to terminate Charlier, thereby contradicting prior testi-
mony that she was not advised of the terminations until
the day before they were announced. More telling is
Cratty's reaction when Charlier alluded to the Board
notice at the time she was discharged: she and McCarty
were quick to point out that they were not attempting to
inhibit Charlier's right to discuss the Union. Unless they
were aware that Charlier was engaged in union discus-
sions, this remark is a non sequitur. Gunn and Pettinelli
did not impress me as altogether reliable witnesses either.
To justify the finality of the discharges, Gunn stated un-
equivocally that it was company policy to terminate
rather than lay off employees. Yet, as the Board's deci-
sion showed, management styled the dismissals of union
activists in 1978 as layoffs and, in fact, recalled one of
the employees suspended at that time. Pettinelli claimed
that he played no role in the decision to terminate Char-
lier and Armstrong. If he was not involved, it is difficult
to account for Cratty's sending him a memo dated Octo-
ber 22, 2 days before the dismissals, listing the absences
of each accounts receivable employee with the exception
of Charlier.
Given Cratty's obvious loyalty to the Company, I
have not the slightest doubt that as soon as she learned
of Charlier's and Armstrong's union support, she report-
ed it to management. The fact that the two persons dis-
charged were the only ones identified as union spokes-
men, in itself supports the inference that the Respondent
was aware of their union activity. Hurst Performance,
Inc., 242 NLRB 121 (1979); Nebraska Bulk Transport,
Inc., 240 NLRB 135 (1979), modified 608 F.2d 311, 315-
317 (8th Cir. 1979).
To negate this inference Respondent pointed out that
another union adherent, Pat Wright, was not discharged.
- --- --
FIVE STAR AIR FREIGHT CORP. 279
This argument has little merit, however, for the record
contains no evidence of any union activity by Wright
which would bring her to Respondent's attention at the
time of the terminations. It is noteworthy, in this regard,
that Fahey did not mention Wright's name to Majey
when she reported that there were renewed "union
grumblings."
The abruptness of the discharges provides additional
grounds to suspect Respondent's motivation. See Hurst
Performance, Inc., supra. Respondent insisted that it ter-
minated the employees solely to make room for the rein-
stated workers. Yet, the discharges occurred midweek
and were effective immediately, although one replace-
ment was not due until 5 days later and the other, a
week after that. Respondent offered no rational explana-
tion for the summary nature of the terminations, raising
questions as to why it chose to create a situation in
which no employee proficient in C.O.D. work remained
to train Patterson.
Based on the foregoing, I find that the General Coun-
sel has established a prima facie case that Charlier's and
Armstrong's union activity was a significant factor in Re-
spondent's decision to discharge them.
In defense, Respondent claimed that it discharged
Charlier because her absenteeism and general attitude at
work made her the weakest of its accounts receivable
employees. Armstrong was selected for discharge alleg-
edly because she was unmarried and therefore, less likely
to remain a permanent member of a stable work force.
It is an oft-repeated principle that an employer may
discharge an employee for good or bad cause, or no
cause at all, as long as antiunion considerations are not at
the root of its behavior. Nebraska Bulk Transport, Inc.,
supra; Borin Packing Company, Inc., 208 NLRB 280
(1974); N.L.R.B. v. Ace Comb Company, 342 F.2d 841
(8th Cir. 1965). In this case, the Respondent's attempts to
bring itself within the first part of this principle failed for
the record reveals that the reasons asserted by Respond-
ent for the discharges were conveniently invoked to con-
ceal its antiunion motivations.
Charlier did have more absences than other employees
in accounts receivable. However, "the fact that a lawful
cause of discharge is available is no defense where the
employee is actually discharged because o his union ac-
tivities." N.L.R.B. v. Ace Comb Company, supra at 847.
Here, although Gunn alleges that one of the factors
prompting his selection of Charlier was her absenteeism,
he admitted he had neither examined the individual at-
tendance slips in her personnel file nor compared her ab-
sences with those of other employees prior to selecting
her for discharge. Thus, he chose Charlier with only a
vague idea of her attendance record. Moreover, almost
half of Charlier's absences in 1979 stemmed from a 2-
week hospitalization in September. Prior to that time,
her absences were equalled by one other employee and
did not greatly exceed those of several other employees
in accounts receivable. Subsequent to this hospitalization
her attendance record showed a marked improvement.
Gunn denied knowledge of Charlier's hospital stay, but
in a facility with a total work force of 55, it is difficult to
believe he was unaware of the absence of the employee
solely responsible for the C.O.D. accounts for that length
of time. By feigning ignorance of Charlier's absence in
September, Gunn apparently was attempting to bolster
his assessment of Charlier as an unreliable employee who
absented herself without justification.
Gunn's view that Charlier's attitude and demeanor
were objectionable was based primarily on an incident in
which Siciliano reported that she, among other employ-
ees, was visiting with employees in the traffic depart-
ment and thereby disrupting their work. However, Gunn
indicated that other employees engaged in the same be-
havior and, indeed, the record shows that personal ex-
changes among the employees were commonplace.6
Gunn's characterization of Charlier's work as medio-
cre had no support in the record. In fact, had he exam-
ined the most recent evaluation in her personnel folder,
he would have discovered that her immediate supervisor
rated her a very good, even an outstanding, employee
who "shows an excellent quality of work" and an exem-
plary ability to work harmoniously with others.
In short, Respondent's portrayal of Charlier as the
most undesirable of its accounts receivable employees
was distorted and unconvincing.
Respondent's assertion that Armstrong was dismissed
because as an unmarried woman she would be less con-
tent with her job was equally contrived and incredible.
Whether other persons would consider the reason
which Respondent offered for dismissing Armstrong jus-
tified or fair is not necessarily the test of its legitimacy.
See Borin Packing Company. Inc., supra at 281. At the
same time, when an employer offers a reason for its ac-
tions, the Board is entitled to determine whether that
reason is rational in light of the employer's stated end.
Married women are frequently victims of employment
discrimination because employers allegedly believe that
domestic demands cause them to be unstable employees.
Respondent apparently does not hold to that view. How-
ever, Respondent's purported belief that single women
are less stable employees than their married counterparts
was never convincingly explained by Respondent's wit-
ness, Siciliano. It is ironic and curiously coincidental
that, at the time of the discharge, Siciliano ascribed mar-
ried women workers' stability to the fact that their in-
comes are supplemental to those of their husbands, when
a few days previously, Armstrong expressed the view to
Fahey that the Union was needed to protect the security
of women employees whose incomes were not supple-
mental to those of their husbands. If Siciliano's selection
of Armstrong for separation were based on a genuine
concern for a stable work force, it is peculiar that he
should speculate about the impermanence of unmarried
women and ignore concrete factors such as longevity,
aptitude for the work, or other proven indicia of stabil-
ity. Siciliano alleges that he gave considerable thought to
the matter, yet was unable to cite any criteria other than
Armstrong's unmarried status and an expression of dis-
content with the size of her recent wage increase (fol-
lowing a laudatory work evaluation), as the bases for his
decision. It is also noteworthy that both women Siciliano
6 Although Siciliano sent a memo dated September 22 to McCarty
complaining about Charlier's visits to his department, Gunn indicated his
conversation with Siciliano had taken place months before
FIVE STAR AIR FREIGHT CORP.
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
preferred to retain had expressed their disinterest in the
Union.
Given the defects in the asserted reasons for discharg-
ing Charlier and Armstrong as discussed above, I am
unable to conclude that Respondent has met its burden
of proving that it would have selected the same employ-
ees for layoff even if they had not participated in union
activity. See Wright Line, Inc., supra. It follows that by
discharging Charlier and Armstrong on October 24,
1979, Respondent violated Section 8(a)(1) and (3) of the
Act.
B. Retaliatory Acts
The record also leaves no doubt that Respondent's
union animus and chagrin at having to reinstate employ-
ees who were early activists in the Union's campaign ex-
plains the retaliatory actions taken against them.
Respondent, through Vice President Gunn, attempted
to justify its initial denial of vacation leave to Cornish by
resorting to a rigid application of its rule that vacations
must be taken from April through September. However,
Cornish's immediate supervisor initially had no objection
to her request and acknowledged that there were other
employees who could perform her duties in her absence.
Moreover, the record reveals that the rule had been bent
on more than one occasion for employees DeStefano and
Komerowski. Although management subsequently re-
versed its decision, its initial denial, stemming from an
unlawful motive, constituted a violation of Section
8(a)(3) and (1) of the Act.
Similarly, Respondent's withholding Janet Patterson's
holiday pay in December 1979 and suspending her with-
out pay in April 1980 are obvious mainfestations of hos-
tility toward union supporters.
The company rule requiring attendance before and
after a holiday provides for exceptions where other ar-
rangements are made. Clearly, Patterson's telephoning
Cratty from the physician's office was a good-faith effort
to make such other arrangements. In light of Patterson's
call and the emergency nature of her absence, Cratty's
construction of the rule was both arbitrary and vindic-
tive. Cratty's reference to an allegedly similar application
of this policy in 1975 is unpersuasive where there was no
showing that the employee in that incident attempted to
make other arrangements as did Patterson.
Under the guise of applying its rule against theft of
company property, Respondent suspended Patterson for
3 days without pay because she typed a letter, announc-
ing an impending union meeting, on a company typewrit-
er allegedly during working hours. The record estab-
lishes that employees made frequent use of company
equipment without rebuke. Therefore, management's ex-
cessive reaction to Patterson's modest infraction of com-
pany policy reveals its true motivation. That Respondent
was punishing Patterson for her continued union activity,
not for a violation of company rules, is underscored by
Pettinelli's flagrantly antiunion comments to her during
the disciplinary interview. Where, as here, an employer
disciplines an employee for conduct which it condones in
others, at a time when the employee is engaged in union
activity, an inference is warranted that the employer's
unprecedented condemnation was pretextual. See Cater-
pillar Tractor Company, 242 NLRB 523 (1979); J. P. Ste-
vens & Co., Inc., 240 NLRB 579 (1978). Accordingly, I
conclude that Respondent violated Section 8(aXl1) and
(3) of the Act by denying holiday leave pay to Patterson
in December 1979 and by suspending her for 3 days
without pay on April 29, 1980.
However, I do not find sufficient proof of discrimina-
tion in Respondent's decision to deny sick leave pay for
Cornish's absence on December 18, 1979, nor in its refus-
al to grant Patterson a day of vacation leave in lieu of a
personal day off in March 1980.
Brutchi testified in a forthright manner and had no
particular reason to fabricate the story about her encoun-
ter with Cornish in a department store. On the other
hand, Cornish's insistence that she was home ill the
entire day did not ring true. The practice of substituting
a vacation day for a personal day was, by Patterson's ad-
mission, one which was in use prior to her first dis-
charge. Since no evidence was presented that such sub-
stitutions were allowed after publication of the Compa-
ny's manual in April 1979, nor that Patterson was treated
disparately in this instance, I cannot conclude that Re-
spondent's conduct on these two occasions was illegal
under the Act.
CONCLUSIONS OF LAW
1. By terminating Marjorie Charlier and Susan Arm-
strong because of their union activities, Respondent vio-
lated Section 8(a)(3) and (1) of the Act.
2. By denying Doris Cornish permission to take vaca-
tion leave in February 1980, denying Janet Patterson
holiday pay on December 24 and 25, 1979, and by issu-
ing a warning to and suspending Patterson for 3 days
without pay commencing April 29, 1980, in reprisal for
their union activities, Respondent violated Section 8(a)(3)
and (1) of the Act.
3. The above violations are unfair labor practices
within the meaning of Section 2(6) and (7) of the Act.
4. Respondent did not violate the Act by denying sick
leave pay to Doris Cornish for her absence from work
on December 18, 1979, nor by denying Janet Patterson's
request to substitute a day of vacation leave for a person-
al day in March 1980.
REMEDY
Having found that Respondent engaged in certain
unfair labor practices, I recommend that it be ordered to
cease and desist therefrom and take certain affirmative
action designed to effectuate the purposes and policies of
the Act. The recommended Order also will provide that
the Respondent offer the discriminatees, Marjorie Char-
lier and Susan Armstrong, full and immediate reinstate-
ment to their former jobs, or, if those jobs no longer
exist, to substantially equivalent positions, without preju-
dice to their seniority or other benefits, rights, and privi-
leges, and make them whole for all losses of earnings and
benefits caused by Respondent's unlawful termination
from the date of their unlawful discharges to the date of
an offer of reinstatement, less net earnings during such
period to be computed on a quarterly basis as provided
in F. W. Woolworth Company, 90 NLRB 289 (1950), and
FIVE STAR AIR FREIGHT CORP. 281
Florida Steel Corporation, 231 NLRB 651 (1977). See,
generally, Isis Plumbing & Heating Co., 137 NLRB 716
(1962). I also shall order that Respondent make Janet
Patterson whole in the same manner for all earnings lost
by reasons of the denial of her holiday leave pay on De-
cember 24 and 25, 1979, and her unlawful 3-day suspen-
sion without pay commencing April 29, 1980. Also, Re-
spondent shall be required to remove any recordation of
the suspension warning from Patterson's personnel file
and deliver such documents to her. Certain-Teed Insula-
tion Company, 251 NLRB 208 (1980).
Upon the foregoing findings of fact and conclusions of
law, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
ORDER 7
The Respondent, Five Star Air Freight Corporation,
Essington, Pennsylvania, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Terminating, suspending, or warning employees, or
discriminating against them in any other manner, with
regard to their hire or tenure of employment or any term
or condition of employment because they have engaged
in activities on behalf of a labor organization.
(b) Threatening employees with discharge or other re-
prisals for engaging in union activities.
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
their rights under Section 7 of the Act.
2. 'Take the following affirmative action designed to ef-
fectuate the purposes and policies of the Act:
(a) Offer to Marjorie Charlier and Susan Armstrong
full and immediate reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges, and make them and Janet Patterson
whole for any loss of earnings they may have suffered
by reason of the discrimination practiced against them, in
the manner set forth in the section of this Decision enti-
tled "Remedy."
(b) Remove any recordation of the suspension warning
issued to Janet Patterson on April 29, 1980, and deliver
such documents to her.
(c) Preserve and, upon request, make available to the
Board or its agents, for its examination and copying, all
payroll and other records necessary or useful in order to
analyze and determine the amount of backpay due under
this Order.
(d) Post at its offices in Essington, Pennsylvania,
copies of the attached notice marked "Appendix." 8
I 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 find-
ings, 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.
' In the event that this Order is enforced by a Judgment of a United
States Court of Appeals. the words in the notice reading "Posted by
Copies of said notice, on forms provided by the Regional
Director for Region 4, shall, after being duly signed by
Respondent's representative, be posted by it immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or cov-
ered by any other material.
(e) Notify the Regional Director for Region 4, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that, insofar as para-
graphs 5(b) and (e) of the amended complaint allege
other violations of the Act which have not been found,
those allegations are hereby dismissed.
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS 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 Nation-
al Labor Relations Board has found that we violated the
National Laabor Relations Act, and has ordered us to
post this notice.
WE WILL NOT terminate, suspend, discriminate,
warn, or retaliate against our employees in regard
to their hire or tenure of employment or any term
or condition of their employment because they have
engaged in activities on behalf of a labor organiza-
tion.
WE WILL NOT threaten our employees with dis-
charge or other reprisals because they engaged in
union activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the exer-
cise of their Section 7 rights.
WE WILL offer to Marjorie Charlier and Susan
Armstrong full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially
equivalent positions, and pay them and Janet Patter-
son for any loss of earnings they may have suffered
because of our discrimination against them, with in-
terest.
FIVE STAR AIR FREIGHT CORPORATION
FIVE STAR AIR FREIGHT CORP. 1