Mapco, Inc.

National Labor Relations Board - Board Decisions

Sep 16, 1976

225 N.L.R.B. 1351 (N.L.R.B. 1976)

PROCESS AND POLLUTION CONTROL COMPANY 1351
Process and Pollution Control Company, a wholly
owned subsidiary of Mapco, Inc. and Retail Clerks
Union, Local No. 73, affiliated with Retail Clerks
International Association, AFL-CIO. Case 16-CA-
6213
September 16, 1976
DECISION AND ORDER
By MEMBERS JENKINS, PENELLO, AND WALTHER
On June 3, 1976, Administrative Law Judge Jennie
M. Sarrica issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief.
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 brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt her recommended Order.
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 and hereby
orders that the Respondent, Process and Pollution
Control Company, a wholly owned subsidiary of
Mapco, Inc., Tulsa, Oklahoma, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
' The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to over-
rule 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 (C A 3, 1951) We have carefully
examined the record and find no basis for reversing her findings
was issued on October 20, and amended on November 7,
presenting allegations that Process and Pollution Control
Company, a wholly owned subsidiary of Mapco, Inc., here-
inafter referred to as the Respondent, committed unfair
labor practices within the meaning of Section 8(a)(1) and
(3) and Section 2(6) and (7) of the Act. The Respondent
filed an answer denying that it committed the violations of
the Act alleged. Upon due notice, the case was tried before
me at Tulsa, Oklahoma, on December 18. Representatives
of all parties entered appearances and had an opportunity
to participate in the proceeding.
Based on the entire record, including my observation of
the witnesses, and after due consideration of briefs filed by
all parties, I make the following:
FINDINGS AND CONCLUSIONS
1. JURISDICTION
Respondent, a Delaware corporation licensed to do busi-
ness in Oklahoma , and with its principal office and place
of business located at 11391 East Tecumseh , Tulsa, Okla-
homa, is engaged in the manufacture and sale of electrical
and electronic parts.
During a representative period preceding issuance of the
complaint , Respondent , in the course and conduct of its
business operations at its Tulsa, Oklahoma, plant sold and
distributed goods, wares , and merchandise valued in excess
of $50,000 which were transported from its Tulsa, Oklaho-
ma, plant directly to States of the United States other than
the State of Oklahoma . Respondent admits, and I find,
that it is now , and has been at all times material herein, an
employer within the meaning of Section 2(2) of the Act,
engaged in commerce and in operations affecting com-
merce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATIONS
The Charging Party, Retail Clerks Union, Local 73, affi-
liated with Retail Clerks International Association, AFL-
CIO, is now, and has been during all times material herein,
a labor organization within the meaning of Section 2(5) of
the Act.2
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
DECISION
STATEMENT OF THE CASE
JENNIE M. SARRICA, Administrative Law Judge: This is a
proceeding under Section 10(b) of the National Labor Re-
lations Act as amended (29 U.S.C. § 151, et seg ), hereinaf-
ter referred to as the Act. Based on charges filed on Sep-
tember 8, 1975,' as amended on October 16, a complaint
' All dates herein are in 1975 unless otherwise specified
The sole issue presented in this case is whether Respon-
dent violated Section 8(a)(3) and (I) of the Act by failing
and refusing, on or about April 15, and May 12, and con-
tinuing to fail and refuse, to hire applicant Edith Pauline
Smith at its Tulsa, Oklahoma, plant because of her union
2 It is alleged in the complaint and was admitted at the hearing that the
Automobile , Aerospace and Agricultural Implement Workers of America,
International Union United , and the Transport Workers Union of America,
AFL-CIO, are also labor organizations within the meaning of Section 2(5)
of the Act Neither of these organizations appears as a part to this proceed-
ing
225 NLRB No. 201
1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or concerted activities while employed at another compa-
ny.
B. Contentions of the Parties
The General Counsel contends that Respondent ceased
to consider applicant Smith for employment once she was
identified by a supervisor of a former employer as having
initiated a union organizing campaign there, and that the
reasons advanced by Respondent for not according
Smith's qualifications further consideration were pretexts.
In its answer , Respondent affirmatively pleaded that the
reason Smith was not initially hired was because she was
considered less qualified than the two applicants hired, and
that it has hired individuals known or believed to be union
members when they were hired. At the hearing , Respon-
dent asserted and attempted to establish that Smith 's appli-
cation was given no further consideration after checking
her reference because her employment application was in-
complete in that it omitted listing an employer and be-
cause , in her interview , Smith had expressed an interest in
attaining a supervisory position ; and, further , that Smith's
supplemented application was not considered for subse-
quent employment because it presumed she was no longer
interested and because special considerations precipitated
the subsequent hire of an additional employee in the same
job classification . In its brief , Respondent argues each of
these points and further urges dismissal of the complaint
on the ground that the General Counsel has failed to estab-
lish union animus as a dominant motive for Respondent's
action.
C. Background
Effective March 1, Respondent came into being through
the purchase by Mapco, Inc., the parent company, of Cata-
Sep Corporation (a Tulsa based company) and NuSonics
Incorporated, (a New Jersey based company,) the merger
of those two companies with the environmental controls
division of Mapco, and the consolidation of their re-
spective operations in a new building located in Tulsa, Ok-
lahoma, the facility involved herein. The actual physical
move and consolidation took place during the first weeks
of May Preparatory to beginning operations at the new
location, Respondent placed an advertisement in a Tulsa
newspaper seeking applicants for certain positions, among
them two openings available for experienced wiremen/
electronics assemblers, indicating that applications were
available at the Cata-Sep offices and that interviews would
be conducted on March 31 and April 1. Betty Brewer ob-
tained applications for herself and Smith, submitted both
completed applications to the Mapco office on March 25,
and arranged an appointment to be held for both of them
on April 1 at 4:15.
D. The Evidence Presented
John A. Moss, Jr., the former head operating official of
Cata-Sep, and manager of administration of Respondent,
Process and Pollution Control, from March 1 until October
31, accepted and forwarded copies of the applications of
Smith and Brewer to Ellis M. Zacharias, Jr., operations
manager, in New Jersey, for the latter's review before his
arrival at Tulsa for the actual interviews.
At the appointed time, date, and place, Smith was inter-
viewed by Zacharias. In this interview Smith told Zachari-
as she had filled out her application hurriedly. She then
orally related to him details as to her qualifications and
projects she had worked on not reflected in her application,
including her 3 years of experience in engineering, her ex-
perience in starting projects, in setting up assembly lines,
setting up and teaching employees to read blueprints, as
well as how to perform the job functions in wire assembly,
together with details concerning the exceptionally high
quotas she had met, and assured him that she had certifi-
cates attesting to her abilities. Zacharias indicated that he
was impressed and stated, "If you're as good as you say
you are, you're just what this Company is looking for." 3
Smith inquired about the Company's future plans and
the opportunity for advancement with an expanding work
force. Zacharias told her the Company was starting off
slowly and as work picked up they would be hiring more
employees but that he would not know what advancement
would be available from electronics unless it would be into
engineering. Smith clarified that she had reference to train-
ing new employees in the electronics department. Zachari-
as replied, "most certainly, you would be on the ground
floor;" that new hires would probably be unskilled, and
"you and Betty Brewer ° would certainly be in a superviso-
ry capacity." Smith inquired as to specifically what duties
that would entail. Observing that the duties then outlined
by Zacharias were similar to those she performed as a
"lead" in her previous employment, Smith inquired to veri-
fy that such duties "had a title." 5
Smith asked what the company benefits were and Za-
charias replied that the Company was new and those plans
were not yet completely formulated, but he was sure she
' Zacharias testified that he may have used words to this effect but did
not recall what he said, nor did he remember adding "if your references
check out"
Smith testified that throughout the interview Zacharias frequently re-
ferred to her and Betty Brewer jointly , Zacharias , on the other hand , testi-
fied that he interviewed the two in the same room at the same time, which
Smith denies Resolution of this difference in recollection is significant only
in evaluating the reliability of the memory of each and the relative credibili-
ty As Brewer is still employed by the Respondent, I find it significant that
Respondent did not present Brewer as a witness in this proceeding to sup-
port the testimony of Zacharias in view of the conflicts in testimony with
respect to statements made by Zacharias and Smith in that interview Fur-
ther , I note the difficulty of recall revealed in Zacharias ' testimony, whereas
Smith's presentation impressed me as clear and candid Although both are
parties of interest in this proceeding, the events, by their nature, had a much
greater significance in Smith's life and of necessity would have sharpened
her awareness and her memory of them On the basis of these consider-
ations and the entire record , I credit Smith 's account of these events as the
more reliable rendition of what occurred at this interview
5 Except in this context , Smith denied that at any time in this interview
she referred to or inquired about a supervisory position , insisting that she
made references only to a "lead " position and that in her understanding
lead and supervisory positions are quite different Zacharias conceded that
Smith may have referred only to a "lead " position and may not have used
the term "supervisor ," but asserted that in his concept the two terms are
synonymous Zacharias also testified that another applicant, Sandra Parrish,
who was subsequently employed, likewise spoke of her experience as a su-
pervisor and mentioned that she had also been a "lead," but that these
qualifications were "not of interest " to the Company at the initial interview
PROCESS AND POLLUTION CONTROL COMPANY 1353
would be pleased with them He assured Smith the Compa-
ny would have completed its plans by the coming Friday
and she would receive such information at that time. Za-
charias assured Smith that wages were no problem whatso-
ever.
Zacharias took Smith to the blueprint of the new plant
mounted on the wall of the office they then occupied. He
pointed out where the electronic work would be located
and where she and Brewer would sit as well as the location
of the related technician and engineering section.6 When
they returned to the desk where most of the interview took
place, Zacharias told Smith they had planned to hire two
wiremen /assembly employees but that they would be hir-
ing three because another applicant, whose name Smith
heard as "Sondra," appeared to be "rather well experi-
enced with wire," and he intended to hire her also.? Zacha-
rias told Smith that it would be necessary to check their
references , which would be completed by Friday noon, and
that, if it all checked out, she would then receive all the
information on benefits and on the date the plant would
open. In this latter respect, Zacharias stated the plant
would probably open in May and inquired of Smith wheth-
er this beginning date would inconvenience her.
The list used by Zacharias on April 1, 1975, contains the
names of 15 job candidates for whom appointments for
interview had been arranged and indicates that three wire-
men/assembly applicants were listed thereon. Brewer was
the 10th, Smith was the 11th, and Parrish was the 12th
individual interviewed. Notations by Zacharias appear on
this list opposite each name. For Brewer it carries the com-
ment "good qualifications; suggest offering $3.50 hr to
start work on 5/12." Under this comment and opposite
Smith's name appears the word "Dirro" and opposite the
name of Parrish appears the comment "supervised 80
W&A people, NASA certified, very pleasant & high priced
$4.50/hr." Zacharias testified that those comments were
prepared that evening after the day's interviews were com-
pleted, and that he encircled the numbers next to the appli-
cants whose references were to be checked Numbers 10,
11, and 12 were encircled. A more detailed handwritten
notation of Zacharias dated April 1, 1975, is in evidence.
The time when it was prepared in relation to the interview
is not revealed. Zacharias' comments are'
Tuesday, 4/l/75, #11 4 :15 Edith Smith W&A
(3.50/hr)
Had prior experience in PC board assembly and har-
ness preparation . Was leader in W/A shop. Wants
3.50/hr and to be hired with Betty Brewer. Suggest
offer at 3 50 to begin work on 12 May. Hire ASAP-
and send to Paramus to stay there period.8
6 Zacharias testified that when he was interviewing an applicant whom he
regarded as well qualified he used the interview to try to sell that candidate
on the desirability of working for the Company
7 Zacharias at first denied but later stated he could not recall that he told
Smith he was considering hiring three wiremen/assembly employees He
testified that he was the person who was deciding what the basic employee
complement would be According to Zacharias, both Brewer and Smith
were on the list for ultimate job offers but final decision was reserved until
the interviews were completed and the references checked
8 May 12 was encircled The blank represents an illegible word
To this was attached by tape the handwritten comments by
Moss set forth infra 9
When Moss called Dorsett Electronics Division of Lab-
arque, Inc., the employer that preceded Smith's then cur-
rent employer, Badger Meter, Co., he did not speak to the
supervisor named on her application but to another official
of the Company whose name he could not recall. Moss
testified that he was told Smith was a good worker, compe-
tent and qualified, with a good attendance record and a
pleasing personality, and that there were no qualms about
her ability. However, upon his inquiry, Moss could not
recall whether the official was evasive as to whether Smith
was eligible for rehire or whether he stated that she was not
recommended for rehire by that company and was evasive
as to the reason . Moss did recall that, in this context, the
official stated Smith had been active in organizing a union.
According to Moss, this official then expressed surprise at
receiving Moss' inquiry purportedly because he understood
that Smith had "gone to work for a company named Bur-
teck 10 when she left" Dorset.
A handwritten note dated April 4, 1975, of the reference
check with Dorsett, made for Smith by Moss, and attached
by tape to the handwritten comments of Zacharias, record:
Dorsett-Good worker. Active in forming a union is
not too high on her-would not rehire. Burteck-em-
ployer between Dorsett and Badger.tl
9 Another handwritten notation by Zacharta° is in evidence It too has
comments entered on the same page by Moss Further comment thereon
appears later in this decision Zacharias ' statements in the second document
are
4/1/75 #11 4 15 Tuesday Edith Smith-W&A 3 50/hour
Had prior experience in PC board assembly and harness preparation
Also had previous assignment as lead person in W&A shop During
interview , Ms Smith expressed interest in becoming supervisor at early
date Explained that we were seeking assembly workers rather than
supervisors but she would receive same consideration as other workers
should a opening occur Wants 3 50/hour and to be hired with Betty
Brewer Suggest offer at 3 50 to begin work on 12 May unless there is a
better candidate
Moss' testimony shows a remarkable uncertainty and lack of memory
He variously indicated that he made an effort to check Smith 's references at
Burteck but " found nothing" on Burteck , that he had never heard of the
company before, that he must have called them but had no information
from Burteck , that he could not recall whether he was unable to reach
anyone at Burteck or whether he could not get a telephone number for
Burteck, that he did not remember whether he checked the telephone book
but has since looked and found Burteck listed, that he did not remember
calling Burteck , going to its place of business or writing Burteck but that he
would not have done either of the latter two in an effort to check a refer-
ence, that he did not remember what he did in an effort to verify Smith's
suggested employment at Burteck , that he had no instructions to fill in gaps
in employment applications, that his failure to find anything on the Burteck
employment did not seem unusual to him, that he did not even know
whether Smith ever was employed by Burteck, and that he never tried to
verify with Smith that she had ever been employed by Burteck On the other
hand, Smith testified it was her understanding that Burteck was a sister
company to Dorsett which had been separated from Dorsett and placed in
bankruptcy I note that Moss had been in business in the same city and
industry for several years before the purchase of his company by Mapco
and that he testified that several companies in the field had gone bankrupt
during that period placing an unusually large supply of experienced job
applicants for wiremen/assembly positions on the labor market This raises
a serious question of his credibility in this matter
" A second handwritten notation by Moss entered on the bottom half of
the page of the second notation of Zacharias set forth in In 9, supra, indi-
cates "Reasonably good worker, Asked if she was recommended for re-
hire-indicated she was not [illegible] -Said she went to work for
Continued
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In this respect Smith testified that she had filed an employ-
ment application with Burteck in November 1974, but was
never employed by that company.
When she and Brewer did not hear from Respondent,
Smith telephoned Respondent, on behalf of both, Friday
afternoon and told Moss that Zacharias had said they
would receive a call by Friday noon. Moss stated this was
true but that he had not completed checking their refer-
ences. Smith advised Moss that she and Brewer were both
leaving town for the weekend. Moss stated he would check
their references and would call Neither received a call that
evening before they left town Moss called Brewer's hus-
band that night with respect to Brewer's employment. No
call was ever made to Smith.12
After their return from the weekend trip on Sunday eve-
ning, Smith learned from Brewer that the latter was being
hired and was to report for employment processing. After
Brewer fulfilled this procedure she returned and gave
Smith a message, purportedly from Moss, that "she was
not out of the ball game yet." 13 From this message, and the
comments by Zacharias that if she was as good as she rep-
resented herself to be she was dust what the Company was
looking for, Smith assumed that the delay in hiring her
related to her references. Acting on the possibility that this
involved questions concerning her ability, Smith assembled
supportive recommendations, verifications, evaluations,
and certificates, and attempted, on May 12, to give these to
Zacharias or Moss. The receptionist at the plant talked
with the secretary, then told Smith that neither of the
named persons was there and that her application could
not be located. Smith elicited a promise from the recep-
tionist to attach her documents to her application when it
could be found.14 The receptionist stated to Smith that
"[w]e're not going to be hiring anyone for 6 or 9 months "
Brewer and Parrish had been employed 15 and began
work when the new plant opened. Respondent hired anoth-
er wireman/assembler effective July 31, 1975. No consider-
ation was given to Smith's application at that time. Ac-
Burteck between Badger Meter & Dorsett-not listed on application' Bur-
teck-can't locate or find info-Checked with Zach-Do not offerjob now,
hold application
12 Moss testified that he usually does inform candidates of the results of
the Company's consideration of their applications but indicated that he may
not have called Smith because of the number of applicants being considered
at that time He was uncertain whether he mentioned Smith to Mr Brewer,
but was sure he would not have told Mr Brewer of the decision with respect
to Smith although he was certain the decision not to hire her had been made
at that time
13 Moss did not deny sending such a message
14 Moss acknowledged that he did, at the time, look over the additional
documents she submitted His observation was that the documents were
favorable to Smith Zacharias similarly acknowledged receiving the subse-
quent qualifying data given him by Moss who said, "Edith Smith is here
looking for ajob What shall I do"" Zacharias testified he told Moss, "[W]e
have no openings at this point and please inform Mrs Smith of that"
15 Moss testified that "we had two complete application forms and we
decided to make offers on those two forms" However, the evidence reveals
that the applications of both Brewer and Parrish contained similar time gaps
between the employers listed which were deemed so insignificant that the
gap in Brewer's application was not even noticed Further, Moss admitted
that he merely carried out instructions in connection with verifying the
employment applications and notifying the persons hired, but made no de-
cision with respect to selection This is corroborated by the testimony of
Zacharias
cording to Zacharias, the individual employed in July had
only slightly over a year of experience which he character-
ized as "not much," but the manufacturing manager stated
he thought he could train her Zacharias explained that the
Company was not actively seeking another wireman/as-
sembler but could use one as the workload was increasing,
and that she became a candidate for such employment
upon an inquiry made on her behalf by a member of the
Company. He stated that another factor in hiring this indi-
vidual was that the salary required was minimal ($2.75 per
hour).
Although Moss insisted that the information concerning
Smith's union activity was considered by him to be irrele-
vant to Smith's employment application, it is admitted that
he did report this information when he telephoned Zacha-
rias and related to the latter the results of the reference
checks made by him.16 Zacharias testified that he could not
recall his exact words in reply when Moss mentioned
Smith's union sympathies, but "we didn't attach a great
deal of importance to that." 17 Moss could remember no
specific response from Zacharias. Zacharias asserted that
Moss seemed concerned about the omission from Smith's
application of Burteck as an employer, but that he was
more concerned about her expressed desire to become a
supervisor and he never bothered to have Moss check into
the Burteck employment matter 18 According to Moss, this
whole conversation concerning the three wiremen/ assem-
bler applicants consumed about 60 seconds. At another
point, Zacharias testified that there were two reasons why
Smith was not hired: one was her desire to become a super-
visor and the other was her failure to list Burteck as a
former employer on her application
Analysis and Conclusion
I find no validity in the affirmative defense advanced by
Respondent in its answer At the hearing herein, Respon-
dent did not pursue the assertion that the failure to hire
Smith initially was because she was considered less quali-
fied than the two applicants hired; nor does the evidence
support such a basis. Indeed, the excellence of her qualifi-
cations is unquestioned. Further, I view the fact that Re-
spondent may have knowingly hired skilled employees who
were union members as irrelevant to the issue herein, and
so ruled with respect to offers of evidence to support that
proposition.19
I also reject Respondent's claim that one of the reasons
it ceased to consider Smith's application for employment
after the references had been checked was the fact that
during the interview Smith expressed an interest in attain-
16 According to Zacharias, Moss telephoned to say that in his conversa-
tion with the man at Dorsett he had discovered that Smith was a union
sympathizer and that she had omitted from her application thejob she had
with Burteck following her Dorsett employment
n Later Zacharias asserted that Smith's union activities did not enter in
ani way into his decision with respect to Smith's hire
11 According to Zacharias, he learned only on the day before the hearing
that Smith was never employed by Burteck
19 The proffered evidence made it apparent that Respondent had general
reference to skilled craftsmen in the various traditional trades Cf Border
Steel Rolling Mills, Inc, 204 NLRB 814 (1973), wherein this factor was
considered as relevant in circumstances quite distinguishable from those in
the instant case
PROCESS AND POLLUTION CONTROL COMPANY 1355
mg a supervisory position . I note initially that a preponder-
ance of the credited testimony establishes that Smith made
it clear she was inquiring about opportunities for advance-
ment specifically identified as an opportunity to assume
responsibility in training and acting as "lead" for new em-
ployees in the event of expansion , duties in which she had
previous experience . Basically, it is difficult to comprehend
that an official experienced in and familiar with such plant
terminology would , as Zacharias asserted , interpret refer-
ence to position of "lead " as necessarily synonymous with
"supervisor." In any event , one needs only to look at his
own handwritten comments and the action taken by him
after the interview had been concluded to become con-
vinced that , whatever the interest shown in advancement
by Smith in her interview , it had absolutely no adverse
effect upon Zacharias' interest in hiring her for the position
for which she was being interviewed .'. Thus, that evening
after the interviews were completed for the day of April 1,
Zacharias entered his handwritten capsule comment for
Smith , "ditto" to that for Brewer , which read "good quali-
fications ; suggest offering $ 3.50 hr. to start work on 5/12,"
and gave this to Moss with instructions to call the refer-
ences. He also, after the interview and on the same day,
made what he identified as a more expanded comment
concerning Smith in his own handwriting . 21 Here he re-
corded , "Suggest offer at 3.50 to begin work on 12 May.
Hire ASAP-and send to Paramus ... ." Clearly, an eval-
uation and a decision on the content of the interview had
been made at the time to hire Smith subject only to the
results of the reference check.
In contrast to the notations regarding Smith, on the
same list Zacharias entered opposite Parrish's name the
comment "Supervised 80 W&A people, NASA certified.
Very pleasant and high priced $4.50/hr ." There was no
suggestion to hire and no suggestion in this note that Par-
rish was to be given any further consideration, except that
the number next to her name was encircled , thus indicating
that Moss was to check her references. On her application,
Parris had indicated in the space for "minimum salary ex-
pected" that she would negotiate this item. Zacharias' no-
tation indicates the amount of pay Parrish was demanding.
The fact that Zacharias made those notes after all inter-
views were completed and the fact that he proceeded to
have Moss check her references despite the admission that
he was not then seeking a supervisor in the department
involved and had already designated two wiremen /assem-
bly applicants to receive offers after reference checks sug-
gests that , despite what he labeled as Parrish 's high price,
20 Nor was Smith the only candidate who made reference to her experi-
ence in positions of responsibility Zacharias admitted that Parrish, who was
hired, and whose application also revealed experience as "lead" at one em-
ployer and as a "supervisor" at another, likewise discussed the duties she
performed as a supervisor
21 The second set of so-called expanded comments by Zacharias and
Moss were on a single page with a line drawn between them Each con-
tained comments which in the context of this case appear to be self-serving
in nature It is not established how these partially inconsistent statements,
each purportedly covering the same business event and serving the same
purpose, came about or which was prepared first and for what purpose As
Respondent was responsible for the preparation of both, absent full disclo-
sure of the circumstances surrounding both documents, i must give signifi-
cant weight to anything therein adverse to its defense herein
he was entertaining the possibility of hiring her also. It is
admitted that Zacharias was the person who was making
the decisions as to both the type of employees needed and
the number of each to be hired. I view this circumstance as
support for Smith's testimony that Zacharias stated he was
considering hiring three instead of only the two wireman/
assembly employees announced in the newspaper adver-
tisement. Further, according to Zacharias, the only matter
concerning which he found it necessary to obtain approval
from his superior to New Jersey was the rate the Company
would offer to specific candidates Zacharias proposed to
hire. He had stated to Smith that the pay she was request-
ing "was no problem." These circumstances suggest that
Parrish's references were being verified preparatory to
seeking approval of the rate of pay she was demanding and
without relation to the results of the reference checks of
Brewer and Smith. Accordingly, I find that, but for the
information received on the reference checks by Moss,
Smith would have been employed by Respondent begin-
ning May 12, 1975, at a pay rate of $3.50 per hour.
Turning now to the other reason advanced by
Respondent's officials for not hiring Smith on that date, I
find significant the testimony of Zacharias that he alone
made the selection and the decision with respect to hire.
This is verified by Moss who represented the limits of his
responsibility as initially obtaining the applications and
forwarding them to Zacharias in New Jersey, setting up the
interview appointments at Zacharias' direction, calling the
references named on the applications for those candidates
designated by Zacharias, and reporting to Zacharias the
information obtained by those reference checks. In car-
rying out these assigned duties, Moss recorded that the
official at Dorsett stated Smith had been active in organiz-
ing a union and that Smith was not considered eligible for
rehire. Additionally, the Dorsett offtctal stated the belief
that Smith had gone to work for a company named Bur-
teck when she terminated her employment with Dorsett.22
Moss noted that there was a gap in Smith's employment
record immediately following the Dorsett employment and
that the suggested employment with Burteck was not listed
on her application. Moss included to his report to Zachari-
as this information, as well as the Dorsett official's com-
ments relating to Smith's union activities and ineligibility
for rehire. Admittedly, he also reported her unblemished
record with respect to ability, job performance, and per-
sonality.
Respondent's officials do not, as a matter of routine,
check for the reason where employment gaps appear on an
application, and the presence of such gaps in the applica-
tions of both Brewer and Parrish were given no particular
note. Although Moss mentioned this circumstance with re-
22 it is noted that in his handwritten comments concerning Smith, affixed
with tape on the original to the comments of Zacharias, Moss first noted
that she was a good worker This was followed by the union activity and
non-reemployability statements which constituted the major portion of his
recorded comment with a separate note at the bottom referring to the possi-
ble Burteck employment in contrast, the second document contains ex-
panded comments concerning the Burteck matter along with Moss' observa-
tions related to the application itself with what appears to be a reference to
his subsequent attempt to locate Burteck and to a still later conversation
with Zacharias together with a resulting instruction not to offer Smith a job
but to hold her application
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spect to Smith apparently only because it was suggested by
Dorsett that Smith may have had other employment during
that period, and, according to Zacharias, expressed some
concern about it, Zacharias, who made the decision not to
hire Smith, was not concerned about the time gap in the
employment record set forth on Smith's application, and
gave no instructions to Moss suggesting any further investi-
gation. Clearly, it was not a matter of sufficient import to
Zacharias to support his decision to withhold the employ-
ment offer to Smith at that time and reverse his prior deter-
mination to hire her subject only to the reference check.
Instead, Zacharias seized upon the expressions of a desire
for advancement made by Smith at the interview as his
reason. I discredit this claim. The only remaining consider-
ation was the report of Smith's union sympathies and activ-
ities. I find that the circumstances establish this to have
been the determining, if not the sole, consideration in Za-
charias' instructions to Moss on April 4 not to hire Smith
effective May 12, 1975.
Despite the notation by Moss recording the fact that he
had checked with Zacharias and was instructed not to offer
Smith a job at that time but was to hold her application,
Smith was admittedly not considered when another wire-
man/assembly applicant was employed. The reason of-
fered, i.e., that Zacharias regards applications as obsolete
after a week or two because such applicants usually have
obtained employment elsewhere and are no longer interest-
ed, even if generally true, would not apply in circumstanc-
es where he had given instructions to the contrary and
where, after the passage of the stated time, Smith had sup-
plemented her application with documents admittedly seen
by both Moss and Zacharias. The fact that Zacharias at
first instructed that her application be held lends support
to the conclusion that neither her interest in advancement
nor any suggested omitted employment had diminished his
interest in her as a well-qualified potential employee and
suggests that Zacharias was still weighing this against the
reason for withholding the job offer at that time. His con-
duct, and that of Moss, at the time Smith presented her
additional credentials in avoiding a personal encounter
with Smith and in sending messages discouraging any fur-
ther interest in employment with Respondent on her part
demonstrates that Respondent's initial decision had solidi-
fied and had become a continuing consideration in its re-
fusal to hire Smith.
In its brief, Respondent contends that a vital element of
proof is missing in this case; namely, the existence of union
animus on the part of Respondent While there is no inde-
pendent proof of such animus and this is, of course, an
element for which an admission is rarely forthcoming, I
find that such animus or its equivalent can be inferred
from the entire circumstances.23 As was stated in Terry In-
dustries .24
[J]ust as the showing of other antiunion conduct is of
some support, but is not conclusive, in establishing
that a particular discharge was for union activity, so
23 Cf NLRB v Burnup and Sims, Inc, 379 U S 21 (1964)
24 Terry Industries of Virginia, Inc, 164 NLRB 872, 874 (1967), enfd 403
F 2d 633 (C A 4, 1968) Also see The Firestone Tire & Rubber Company, 220
NLRB 723 (1975)
the comparative absence of such conduct is not con-
clusive in establishing that a discharge was not for
union activity. . . The ultimate question is what was
the reason for the discharge [refusal to hire], and the
presence or absence of other antiunion actions is an
aid to answering the question, not an answer in itself.
The fact that Respondent's reason for not hiring Smith
may have been in cooperation with a request by Dorsett
rather than because of its own union animus does not di-
minish the unlawful effect of its refusal to employ Smith
because of her past union sympathies and activities, report-
ed to it by Dorsett. Such refusal to employ for discrimina-
tory reasons remains unlawful
As I have concluded that Smith's reported union activity
was the determining factor in Respondent's decision not to
hire Smith on April 4 for employment to begin on May 12,
1975, and in its failure and refusal thereafter to consider
application, it follows, and I find, that Respondent thereby
violated Section 8(a)(1) and (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed therein, have a close, intimate, and substantial rela-
tion to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow thereof.
CONCLUSIONS OF LAW
1. Process and Pollution Control Company, a wholly
owned subsidiary of Mapco, Inc., is an employer within the
meaning of Section 2 (2) engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.
2. Retail Clerks Union, Local 73, affiliated with Retail
Clerks International Association , AFL-CIO; Automobile,
Aerospace and Agricultural Implement Workers of Ameri-
ca, International Union United; and the Transport Work-
ers Union of America , AFL-CIO, are, and have been at all
times material herein, labor organizations within the mean-
ing of Section 2(5) of the Act.
3. By refusing to hire applicant Edith Pauline Smith be-
cause it received a report from a former employer concern-
ing her past union activities Respondent has engaged in,
and is engaging in, unfair labor practices within the mean-
ing of Section 8(a)(1) and (3) and Section 2(6) and (7) of
the Act.
THE REMEDY
Having found that the Respondent violated Section
8(a)(1) and (3) of the Act, I shall recommend that it be
ordered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the
Act
As I have found that Respondent refused on and after
April 4, 1975, to employ Edith Pauline Smith for employ-
ment as a wireman/assembler beginnning when its plant
PROCESS AND POLLUTION CONTROL COMPANY 1357
opened on May 12, 1975, because of information it re-
ceived concerning her past union activities, I shall recom-
mend that Respondent be ordered to offer her employment
to the position for which she would have been employed
but for the discrimination against her, including any se-
niority and all other rights and privileges that would have
accrued to her, and that Respondent make her whole for
any loss of earnings she may have suffered by reason of
Respondent's unlawful denial of employment by payment
to her of a sum of money equal to that which she normally
would have earned as wages from the date Respondent
hired its first employee in the classification of wireman/
assembler to the date of her employment, with interest
thereon at the rate of 6 percent per annum in accordance
with the formula set forth in F. W Woolworth Company, 90
NLRB 289 (1950), and Isis Plumbing & Heating Co, 138
NLRB 716 (1962).
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended.
ORDER 25
Respondent, Process and Pollution Control Company, a
wholly owned subsidiary of Mapco, Inc, Tulsa, Oklahoma,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in, or activities on behalf
of, any labor organization of its employees, by denying
employment to applicants because of their past activities
on behalf of a labor organization, or otherwise discriminat-
ing in regard to the hire or tenure of employment or any
terms or conditions of employment of its employees.
(b) In any other manner interfering with, restraining or
coercing its employees in the exercise of their rights to self-
organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other
mutual aid or protection as guaranteed by Section 7 of the
Act, or to refrain from any or all such activities.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer Edith Pauline Smith employment to the posi-
tion for which she would have been employed but for the
discrimination against her, including seniority and all other
rights and privileges that would have accrued to her, and
make her whole for any loss of pay she may have suffered
by reason of the discrimination against her by payment to
her of a sum of money equal to the amount she normally
would have earned as wages from the date Respondent
hired its first wire man/assembly employee to the date of
her employment, in the manner set forth in the section
herein entitled "Remedy."
(b) Preserve and, upon request, make available to the
Board and its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(c) Post at its Tulsa, Oklahoma, plant copies of the at-
tached notice marked "Appendix." 26 Copies of said notice,
on forms provided by the Regional Director for Region 16,
after being duly signed by the Respondent's representative,
shall be posted by it immediately upon receipt thereof, and
maintained by it for 60 consecutive days thereafter, in con-
spicuous 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 16, m writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
25 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
26 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 Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
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 both sides had the opportunity to
present their evidence, the National Labor Relations Board
has found that we violated the law and has ordered us to
post this notice:
WE WILL NOT deny employment to applicants be-
cause of their activities on behalf of any union.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
rights to self-organization, to form, join, or assist labor
organizatons, to bargain collectively through represen-
tatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargain-
ing or other mutual aid or protection, as guaranteed
by Section 7 of the Act, or to refrain from any and all
such activities.
WE WILL, since the Board found that we violated the
law when we refused to employ Edith Pauline Smith,
offer her employment with all rights and privileges she
would have earned but for our discrimination against
her, and WE WILL pay her for any loss of pay she suf-
fered because we did not employ her when the plant
opened.
All of our employees are free to become, remain, or re-
frain from becoming or remaining members of any labor
organization.
PROCESS AND POLLUTION CONTROL COMPANY, A
WHOLLY OWNED SUBSIDIARY OF MAPCO, INC