Pfizer, Inc.

National Labor Relations Board - Board Decisions

Sep 19, 1979

245 N.L.R.B. 52 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pfizer, Inc. and Houston J. Alexander. Case 14 CA
12169'
September 19, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On May 31, 1979, Administrative Law Judge Rob-
ert W. Leiner issued the attached Decision in this pro-
ceeding. Thereafter, Respondent, Pfizer, Inc., filed ex-
ceptions 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 his recommended Order,2 with the following
modifications.
The Administrative Law Judge specifically found
that Alexander would have been hired if it were not
for the information received as a result of the refer-
ence check. We agree. However, even accepting as we
do the Administrative Law Judge's conclusion that
Respondent was lawfully entitled to conduct such a
reference check we do not believe that Respondent
could lawfully place any reliance on the information
received.
The whole theme of the information received was
that Alexander was an ex-union president and a trou-
blemaker. Such a basis so unlawfully taints the whole
evaluation that we fail to see any other aspects of his
evaluation as an employee can be given credence. Ac-
cordingly, although as we have indicated we do not
question Respondent's right to have such a reference
check made it can be relied upon only to the extent
that the unlawful considerations can reasonably be
said to have been removed. Here there is no doubt
that the unlawful aspects colored the entire evalu-
ation, and in such circumstances we are constrained
to conclude that the sole and only basis for the refusal
to hire Alexander was an unlawful one.
Accordingly, we find in agreement with the Admin-
istrative Law Judge that Respondent's refusal to hire
Alexander violated Section 8(a)(l) and (3) of the Act.
I As noted by the Administrative Law Judge, Obear-Nester Glass, Divi-
sion of Indian Head, Inc., entered into a settlement agreement with the
Regional Director in Case 14-CA-12309 and is no longer a respondent in
this proceeding. The caption has been amended accordingly.
2 In light of our recent determination in Hickmott Foods, Inc., 242 NLRB
1357 (1979), we shall change the broad order recommended by the Adminis-
trative Law Judge to a narrow order.
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, as modified be-
low, and hereby orders that the Respondent, Pfizer,
Inc., East St. Louis, Illinois, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the said recommended Order, as so modified:
1. Substitute the following for paragraph (b):
"(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights guaranteed under Section 7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in Bot-
tle Glass Blowers Association of the United
States and Canada, Local Union No. 130, AFL-
CIO, or any other labor organization, by refusing
to hire, or by in any other manner discriminating
in terms and conditions of employment against,
an employee or applicant for employment, be-
cause of his membership in, activities on behalf
of, or sympathy for the above-named Union or
any other labor organization.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them in Sec-
tion 7 of the National Labor Relations Act, as
amended.
WE WILL offer to Houston J. Alexander imme-
diate employment, without prejudice to his se-
niority or other rights and privileges, dating from
December 4, 1978, to the position of probation-
ary employee or, if that position no longer exists,
to a substantially equivalent position, and WE
WILL make him whole for any loss of earnings he
may have suffered as a result of our discrimina-
tion against him, plus interest.
PFIZER, INC.
DECISION
STATEMENT OF THE CASE
ROBERT W. LEINER, Administrative Law Judge: This
case was heard in St. Louis, Missouri, on April 16, 1979.
The underlying charge against Pfizer, Inc., herein called Re-
245 NLRB No. 18
52
1958. At the present time Pfizer and Local 1850 have a 3-
year collective-bargaining agreement expiring in 1980. The
agreement contains a union-security clause requiring mem-
bership in the Union as a condition of employment follow-
ing a 60-day probationary period of employment. Pfizer
also has collective-bargaining agreements with two other
unions: Local 309, IBEW represents Pfizer's 7 electricians;
Local 2, Operating Engineers, represents Pfizer's 10 boiler-
room employees. This East St. Louis. Illinois, plant has a
labor relations history commencing 1956 regarding its pro-
duction and maintenance employees. Pfizer acquired the fa-
cility in 1962. In the period of 1936 to the present time no
unfair labor practice complaints have been issued involving
this plant. In 1978 Local 1850 filed 75 written grievances
against Pfizer, there was an arbitration, and there were ap-
parently other grievances settled before the written griev-
ance stage of the grievance procedure under Respondent's
collective-bargaining agreement with Local 1850. Thus. Re-
spondent has a long history of dealing with unions, and the
incumbent. Local 1850, is not dormant.
The Pfizer plant in East St. Louis is the major employer
in that city. In 1978, 18,000 applications for employment
were filed in the St. Louis plant, from which Respondent
hired 31 production and maintenance employees. 4 service
employees, and 4 employees in skilled trades.
Applications for employment are filed continuously. but
Respondent Pfizer does not inspect these applications ex-
cept when openings occur which are required to be filled.
Respondent's personnel manager does the actual screening
and hiring of new production and maintenance employees.
He reviews the applications already on file and selects only
those in whom Respondent, on the basis of education and
prior experience, is interested. Thereafter, the prospective
employees, actually applicants for the openings, are inter-
viewed. Those interviewed, in whom Respondent has a con-
tinued interest, are sent for physical examination at the Em-
ployer's expense, and the employees' references, provided
by the candidate, are then checked. Pfizer's policy is not to
hire employees who are unable to pass the company phys-
ical examination, but there is no established policy prohib-
iting it from hiring an employee who has unfavorable refer-
ences.
In the first week of November 1978 Respondent's pro-
duction manager informed the personnel manager, James
F. Murphy, that there was a need for three laborers. Per-
sonnel Manager Murphy then screened approximately 100
existing applications and excluded all but 4 to 6 candidates.
He told his secretary to contact the four to six candidates
and set up interviews. Among the four to six candidates for
the three openings were the Charging Party, Houston J.
Alexander, and Henry Lofton.
The normal interview procedure includes a description of
the nature of the job, and if the candidate particularly im-
presses Murphy the candidate is selected for physical ex-
amination at company expense, which is $30. Because of
this expense very few candidates are selected for a physical
examination unless they are seriously considered. Each pro-
duction and maintenance employee is told that he must
serve a 60-day probationary period in a laborer's job which,
essentially, requires hauling 50-pound bags of pigment. The
starting salary of probationary employees in 1978 was $6.64
spondent, was filed on January 18. 1979. An Order consoli-
dating cases, complaint, and notice of hearing issued on
March 29. 1979, to which Respondent, Pfizer, Inc., filed a
timely answer. The primary issue is whether Respondent
refused to hire an applicant for employment, the Charging
Party, because of lawful business and personnel consider-
ations or because of an employment reference (G.C. Exh.
3), from Obear-Nester Glass, Division of Indian Head.
Inc.,' in which that latter employer stated that the Charging
Party should be avoided as an employee and, indeed, was
ineligible for rehire by it, inter alia. because of various defi-
ciencies including being a "troublemaker" and an "ex-pres-
ident of the union who tends to be an instigator."
Upon the entire record, including my observation of the
demeanor of the witnesses and after due consideration of
the briefs filed by General Counsel and Respondent after
the conclusion of the hearing (the parties waived oral argu-
ment), I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent, Pfizer, Inc., an Illinois corporation, main-
tains an office and place of business at 2001 Lynch Avenue,
East St. Louis, Illinois, where it is engaged in the manufac-
ture, sale, and distribution of iron oxide and related prod-
ucts and concedes that in the year ending December 31,
1978, a representative period, it manufactured, sold, and
distributed from its East St. Louis plant products valued at
in excess of $50,000, of which products valued in excess of
$50,000 was shipped from said plant directly to points out-
side the State of Illinois. Respondent admits and I find that
at all material times it has been and is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
At the hearing Respondent withdrew its denial, admitted,
and I find that Bottle Glass Blowers Association of the
United States and Canada, Local 130, AFL-CIO, herein
called the Union, is and has been at all material times a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent's East St. Louis, Illinois, plant produces iron
oxide pigment for the paint and the building supply indus-
tries. It employs approximately 380 employees of whom
270 are in the production and maintenance department,
which latter employees have been represented by Local
1850, Painters and Allied Trades Union, AFL-CIO, since
I At the hearing Obear-Nester Glass, Division of Indian Head, Inc.. en-
tered into a settlement agreement with the Regional Director, which I ap-
proved, disposing of its liability in this matter. Thereafter, while no party
moved to strike the name of Obear-Nester Glass from the caption it was no
longer a respondent in this proceeding,
PFIZER INC. 53
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1/2 cents per hour; the interviewed candidate is told that if
Respondent, after the probationary period. decides to con-
tinue the probationer in employment it will assign him to
one of the particular job classifications where openings
exist. The employee is also told that he is under an obliga-
tion to join a union after the probationary period as a con-
dition of employment in the classification in which the em-
ployee's job exists. The probationary employee, aside from
hauling bags of iron oxide, does cleanup and utility work.
In the interview no further mention of unions is made and
no question of the employee's union activities is asked. Fi-
nally, the employees are told that the references appearing
in the employee's application will be checked by Pfizer.
The Charging Party, Houston J. Alexander, was em-
ployed by Obear-Nester Glass, Division of Indian Head
Co., Inc., in its East S. Louis, Illinois plant for more than 19
years. For the 3 to 4-year period ending in 1978 he was
employed as a "group leader" in the shipping department
where his principal duty on the midnight to 8 a.m. shift was
to work with other employees in the loading and unloading
of pallets of glass, the chief product of Obear-Nester Glass.
At the end of October 1978, when Alexander learned that
Obear-Nester intended to close its East St. Louis plant as of
January 31, 1979, Alexander sought a new job and was able
to do this during the day because he worked on the night
shift. On or about November 7, 1978, Alexander submitted
an employment application (G.C. Exh. 4), for work at Re-
spondent's East St. Louis plant. Thereafter. he was con-
tacted by Respondent, and an interview was scheduled for
him. Alexander alleges that the interview took place on
Wednesday, November 22, whereas Respondent alleges
that it took place on November 21. The resolution of the
date this interview appears immaterial, but in view of the
Charging Party's confidence in the date in relation to other
dates I shall accept the Charging Party's recollection that
the interview took place on Wednesday, November 22. In
particular, he testified that the day following the interview
was Thanksgiving, Thursday, November 23, and he was
unable to take the physical the day following the interview
notwithstanding that he and Respondent were eager to
have him take the physical examination as soon as possible.
Further, Respondent submitted no written evidence such as
Murphy's dated notes of the interview.
The Interview of Alexander by Murphy on
November 22, 1978
Murphy told Alexander that as a probationary laborer he
would be performing a manual job. He asked Alexander if
he knew Henry Lofton, whom he had just interviewed. Af-
ter Alexander told him that he did know Lofton, Murphy
told Alexander that, like the United States Marines, Pfizer
was looking for a "few good men." Murphy learned at the
interview, in conformity with the application. that Alex-
ander had worked for Obear-Nester Glass Company for
more than 19 years2 and had an industrial license, i.e., a
State of Illinois license permitting Alexander to operate a
forklift hi-lo truck. Murphy asked Alexander if the physical
2 Murphy found Alexander's and Lofton's long service to be "a very favor-
able criteria Isic] in selection of applicants."
exam.nation and the reference check were passed whether
Alexander would start immediately, but Alexander told
him that he could not quit his job at Obear-Nester Glass
Company because to do so would eliminate receiving the
severance pay which employees receive if they remained
with Obear-Nester until it closed its doors. Murphy said
that was all right with Pfizer, but that he wanted Alexander
to be able to come to work as soon as possible. Murphy told
Alexander, "I think we can use you", that the starting sal-
ary for a probationary employee was $6.64 1/2 cents per
hour, to be sure to take the physical as soon as possible. and
that after the results of the physical and the reference check
had been made he would notify Alexander "one way or
another" about hiring.
Murphy took and passed the physical examination about
November 25, 1978. Lofton also passed the physical.
On November 28, 1978, with the results of the physical at
hand, Murphy instructed his subordinate, John C. Watts, a
supervisor of industrial relations in the East St. Louis plant,
to make a telephone check of Alexander's and Lofton's ref-
erences. On November 28, 1978, Watts telephoned Obear-
Nester to check the Alexander and Lofton references. At
the time of his telephone call he had before him a Pfizer
form entitled "Telephone Reference Check." a two-page
document containing, in addition to the name of the appli-
cant and the applicant's employer, the dates of employment
with the prior employer, the occupation at the prior em-
ployer. and seven additional questions. That executed form
(G.C. Exh. 3). bearing at the top the date "1 1-28-78," is the
result of Watts' telephone call to and transcribed answers
from Sharon Bauer, supervisor of personnel and industrial
relations at Obear-Nester Glass. Bauer's3 responses, as re-
corded by Watts, show that the Charging Party correctly
stated that he was a forklift driver and received a salary of
$278 per week.
The Answers Appearing on the General Counsel's
Exhibit 3
Question 4 on the document asked: "What did you think
of his/her ability and job perfirmance?". (Underscoring ap-
pears in the document.) The response written by Watts pur-
suant to Bauer's answer is: "Can not speak favorably."
Question 5 on the document asked: "Has he/she any
glaring weak points or did you have problems with him/
her?". Watts recorded the following answer: "An ex-pres-
ident of the Union who tends to be an instigator."
Question 6 asked: "How did he/she get along with oth-
ers?". Watts recorded Bauer as saying: "A troublemaker."
Question 7 asked: "Why did he/she leave your employ?".
(Underscoring appears in original.) Watts recorded: "lay-
off."
Question 8 asked: "How was his/her attendance?".
Watts recorded: "acceptable." The answer to question 9, an
inquiry of any financial or personal trouble which inter-
fered with the candidate's work, is merely a dash. No testi-
mony was elicited at the hearing with respect to the mean-
ing of the dash or whether Bauer answered any questions
on this point which are not recorded.
I Bauer was in the hearing room at all times but was not called to testify
by any party.
54
able." Murphy testified that he asked Watts wh v this Awas
so. and Murphy said that Watts told him that Alexander
had trouble getting along with people and had performance
problems. 4 He also told Murphy that Alexander had been
president of the union at Obear-Nester.
Watts. contradicting Murphy. testified that although he
told Murphy that the telephone check was unfavorable, he
did not recall telling Murphy why the telephone check was
unfavorable or show him the answers he recorded, and his
best recollection was that Murphy did not ask him wlhv the
reference was unfavorable.' In particular. Watts testified
that he did not tell Murphy the reason attached to Bauer's
answer to question 10. advising any employer to avoid hir-
ing Alexander.
Murphy testified that he decided not to hire Alexander
because he followed a policy of not puisuing applicants
where the reference check was unfavorable. He testified
that although Pfizer does not have an express or written
policy of not hiring candidates with unfavorable reference
checks, it was his own policy to not pursue applicants
where the telephone checks on references were unfavorable
on the theory that Respondent does not want to hire "some-
one else's problems" where there are other qualified appli-
cants.
In a prior sworn statement (G.C. Exh. 6), Murphy said
that once he found that a prior employer would not rehire
the employee he no longer considered pursuing the em-
ployee. If the employee is not reemployable by his old em-
ployer, the prior employer's reason, including a refusal to
rehire because of union activities, is immaterial. In his testi-
mony at the hearing, however, Murphy testified that if the
reason were, for instance, the employee's union activity, he
would consider the reason material and would consider hir-
ing the employee.
On December 4, 1978, at Murphy's direction, Respon-
dent sent a rejection letter to Alexander. Upon receipt of
the letter Alexander telephoned Murphy and asked him
what was wrong, and Murphy answered that Respondent
was "looking for a few good men," and that Alexander
simply "just didn't make it." When Alexander asked Mur-
phy if Murphy had spoken to Alexander's supervisors as
Murphy had said he would Murphy told him that he had
not but instead had called the personnel department "only
to verify the hiring date."
Discussions and Conclusions
I conclude and find, in agreement with Personnel Man-
ager Murphy, that Houston J. Alexander, employed by
Obear-Nester Glass Company for 19 years earning $278 per
week, having an "acceptable" attendance record, appar-
ently having no financial or personal trouble which inter-
fered with his work, and who had the advantage of possess-
ing an industrial license was an applicant with impressive
credentials whom Respondent was desirous of hiring to fill
'In a prior sworn statement to the Board. Murphy had said: "I don't
recall if he had a poor attendance or work record because this is not what I
based my decision on."
'A moment later Watts clearly testified that he did not tell Murphy why
the reference check was unfavorable.
Question 10 asked: "Would you consider for re-employ-
ment?". "Yes or No?". In the box marked "no" there is a
checkmark and in answer to the further question "If not,
why not?", Watts recorded the following: "Advise any
company to stay away from him if you don't need further
problems."
Alexander testified and it is not disputed that at no time
in the 5 years preceding the end of his employment with
Obear-Nester was he ever warned or punished concerning
the quality or quantity of his work. It it further uncontested
that Alexander was a member of Local 130, Bottle Glass
Blowers Association of the United States and Canada,
AFL-CIO, and was an officer of that organization for 9 to
10 years. He ceased being vice president on or about Octo-
ber 25, 1978, after about 2-1/2 years in the office. There is
no contradiction that Alexander processed grievances on
behalf of unit employees at Obear-Nester and had an acri-
monious relationship with Sharon Bauer, the industrial re-
lations supervisor. One grievance filed by Alexander was
directed at her personally with the request that she apolo-
gize for certain conduct directed to Alexander. It is also
uncontested that Alexander, as part of his union duties,
regularly remained at Obear-Nester's plant to process griev-
ances and conduct investigations on behalf of Local 130 for
several hours after his quitting time at 8 a.m.
The evidence is also uncontested on this record that aside
from the information it elicited from Bauer through Watts'
November 28 phone call Respondent had no knowledge of
Alexander's union activities at Obear-Nester or the rela-
tionship between Alexander and Supervisor Sharon Bauer.
Nor is there any evidence that Respondent made any in-
quiries concerning Alexander other than those which ap-
pear on General Counsel Exhibit 3, and there is no evi-
dence that Watts or any other Respondent's agent had any
further conversation with Bauer or with any other supervi-
sor or other person at Obear-Nester Glass Company con-
cerning Alexander's performance as an ex-employee or his
conduct as an officer or member of Local 130 of the Glass
Blowers Union.
It is also clear that Watts, in his conversation with Bauer,
learned that Henry Lofton had been a Local 130 shop stew-
ard. Watts testified that he concluded that Obear-Nester's
reference was unfavorable based solely on the responses to
question 4 and 10: poor job performance, ability, and re-
fusal to consider for rehire.
Murphy's Testimony Concerning Alexander's References
It is uncontradicted that in the interview with Alexander
Murphy told Alexander that the results of his physical ex-
amination and the reference check would determine if he
would be employed by Pfizer. Thereafter, Murphy told
Watts, as above noted, to conduct a phone reference check
on at least four candidates, including Alexander and Lof-
ton, whom Murphy had interviewed and who had im-
pressed Murphy.
On November 29 Murphy, desiring the successful appli-
cants to start work as soon as possible, asked Watts how the
reference check had come out. Watts was standing in the
door of Murphy's office at the time. Watts told him that the
telephone reference check on Alexander was "unfavor-
PFIZER. INC 55
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one of the three openings. Indeed, Murphy told Alexander
during the interview following Alexander's statement that
he had an industrial license that: "I think we can use you."
Therefore I conclude that Murphy was impressed with
Alexander's classifications and would have hired him but
for the results of the reference check. Alexander, as an ap-
plicant for employment, is protected against discrimination
under the Act. See Phelps Dodge Corporation v. N.L.R.B..
313 U.S. 177 (1941).
The complaint alleges that Respondent, in violation of
Section 8(a)(1) and (3) of the Act, refused to hire Alexander
because Obear-Nester Glass Company supplied an employ-
ment reference describing Alexander as ineligible for rehire
at Obear-Nester Glass Company because of his union ac-
tivities. As noted in J. R. Sousa & Sons, Inc., 210 NI.RB
982, 985 (1974), it is a rare case where there is direct evi-
dence of a purpose to violate the statute. Rather, in order to
supply a basis for inferring discrimination, "it is necessary
to show that one reason for the refusal to hire] is that the
employee was engaged in protected activity. It need not be
the only reason but it is sufficient if it is a substantial or
motivating reason, despite the fact that other reasons may
exist." See N.L.R.B. v. Whiten Machine Works, 204 F.2d
883, 885 (Ist Cir. 1953). In footnote 16 in J. R. Sousa &
Sons, supra, the Board adopted the Administrative Law
Judge's statement that the use of the word "solely" in
N.L.R.B. v. The William J. Burns International Detective
Agency, Inc., 406 U.S. 272 (1972), relating to discriminatory
motivation does not overcome the settled and frequently
court approved Board principle that a partial but signifi-
cant discriminatory contributory factor is sufficient to taint
the conduct.'
Again, in J. R. Sousa, supra, pp. 984-985: "We have been
repeatedly told that the issue in cases of this type is not
'whether there was a proper cause for the [refusal to hire]
. . but also, conceding such cause, whether the employer
acted on it, or for reasons, prohibited by the Act. Onan v.
N.L.R.B., 139 F.2d 728, 730 (8th Cir. 1944).' "
Murphy testified that he relied on Watts' statement to
him that the report from Obear-Nester was unfavorable,
that Obear-Nester refused to hire Alexander, and that as a
matter of his own wisdom Murphy did not desire another
employer's problems regardless of the reason given if the
employer would not himself rehire the employee. The prior
employer's statement that he would not rehire the employee
is, on this record, according to Murphy's prior sworn state-
ment, dispositive of Murphy's policy of not hiring the em-
ployee. Again, in his testimony at the hearing he added an
exception: except in cases where the employer discloses that
the reason that the prior employer would not rehire the
employee would be illegal. In substance, Murphy testified
that that was not the case here because he relied on Watts'
telling him only that Alexander had trouble getting along
with other people and had performance problems. There is
6 See fn. 16 in J. R. Sousa & Sons, supra, p. 985. It may also be arguable
that certain courts of appeal are adopting a more stringent rule for finding
discriminatory motive where there are conflicting inferences to be drawn
from an employer's conduct: Liberty Mutual Insurance Company v. N.L.R.B.
592 F.2d 595 (Ist Cir. 1979): Coletti's Furniture, Inc. v. N.L.R.B., 550 F.2d
1292, 1293-94 (Ist Cir. 1977); and Waterbury Community Antenna, Inc. v.
N. LRB. (2d Cir. 1978), 587 F.2d 90.
no doubt that such statements appeared on the document
which Watts prepared from his conversation with Sharon
Bauer, but as noted above the Watts-Murphy testimony is
in hopeless contradiction as to what Watts and Murphy
discussed. It is admitted that Watts told Murphy that Alex-
ander had been president of Local 130 and that Obear-
Nester would not rehire him. If Murphy's decision not to
hire Alexander were based on his inability to get along with
others and with poor job performance I would have no
trouble in finding that the evidence failed to show that Re-
spondent was even partially propelled by a discriminatory
motive in refusing to hire Alexander. The conflicting testi-
monies of Watts and Murphy and Murphy's prior sworn
statement and self-contradiction do not permit that conclu-
sion here.
First, I find incredible Watts' testimony that he told Mur-
phy merely that the result of the telephone reference check
was unfavorable, and that Watts concluded that it was un-
favorable solely on the basis of Bauer's statements concern-
ing questions 4 and 10 without reference to the other Bauer
answers. Again, it should be recalled that question 4 was
answered, in substance, with Bauer saying that she could
not "speak favorably" concerning Alexander's ability and
job performance and that in answer to question 10 Bauer
advised "any company to stay away from him if you don't
need further problems."
Second, what I find particularly incredible in Watts' tes-
timony is his bland assertion that although he told Murphy
of the unfavorable response he did not tell Murphy why or
show him the answers, and most unbelievably that Murphy
did not ask why. I find that it is incredible that Murphy,
having been told by Watts that Alexander had been union
president and would not be considered for rehire, did not
ask about the answers and, in conjunction, did not ask to
see the answers.
Indeed, Murphy contradicted Watts wherein Watts had
testified that he did not tell Murphy why the reference check
was unfavorable and did not show him the answers;
whereas Murphy testified that although Watts did not tell
him why the telephone reference check was unfavorable, he
testified that he asked Watts why and that Watts told him. I
would, of course, credit Murphy and discredit Watts in
that. Murphy, as an experienced personnel manager, would
normally ask why the reference check was unfavorable after
his subordinate told him it was unfavorable. This would be
particularly true in the case of a candidate for employment
like Alexander who favorably impressed Murphy and, hav-
ing passed the physical exam, would have been hired but
for the reference check.
Third, Murphy's prior statement contradicting the intelli-
gence he had received from Watts states that he did not
recall if Watts had a poor attendance or work record.
Watts, according to Watts' and Murphy's testimony, told
him, inter alia, that Alexander had a poor work record ac-
cording to Sharon Bauer's responses. Indeed, it is on the
very issue ("what do you think of his/her ability and job
performance?"), that Watts said that he had made up his
mind that Bauer's responses were unfavorable. Yet, since
' Alexander's 19 years with Obear-Nester, which so impressed Murphy,
did not apparently stir Watts to enquire into the bases for Obear-Nester's
forbearance in keeping an allegedly poor worker so long on the payroll.
56
consider him for rehire was not to hire an applicant even it
the basis on which the prior employer acted was due to the
applicant's "union activities." Since the prior employer's
policy of not rehiring in such a case would be illegal Re-
spondent, by adopting such a policy with a blind eye, would
itself be adopting an unlawful policy. Cf. Si)ux (itr
Foundr. 241 NLRB No. 68 (1979) (Member Jenkins con-
curring). Murphy's prior sworn statement, the statement of
Respondent's chief personnel supervisor in the plant. is sub-
stantive evidence. probative of Respondent's polico on hir-
ing Alexander. Cf. 4lvin J. Bar, & Co., Inc.. 236 NLRB 242
(1978). His change of position at the hearing comes too late
and is no more credible than the reasons he originally ad-
vanced for rejecting Alexander.
Respondent insists that its long plant history of freedom
from unfair labor practice complaints and of active union
representation among its several units of employees justifies
the inference that its refusal to hire Alexander flowed from
Murphy's decision based on a benign motive, and that to
hold otherwise is to have the Board substitute its idea of
personnel administration for Respondent's. See Golden
Nugget, Inc.. 215 NLRB 50, 53 (1974) and cases cited.
However, Murphy testified that he refused to hire Alex-
ander because Respondent wanted to avoid taking on some
other employer's "trouble." The precise issue is whether
that avoidable "trouble," in Murphy's own evaluation. in-
cluded in significant part Alexander's being a union "insti-
gator" and "troublemaker." The evidence, including admis-
sions in Murphy's prior statement, the testimonial
contradictions between Watts and Murphy. and the incon-
sistencies between Murphy's testimony and his prior state-
ment (all on issues relating to the reasons Respondent re-
jected Alexander), lead me to the inference which I draw
that Respondent largely rejected Alexander because it
wished to avoid a union troublemaker s among its employ-
ees. Such motivation, though perhaps reasonable, is tainted
and unlawful. See J. R. Sousa & Sons, supra. Evidence of
Respondent's lawful conduct elsewhere is not persuasive
here.
CONCLUSIONS OF LAW
I. Pfizer, Inc., is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Bottle Glass Blowers Association of the United States
and Canada, Local Union No. 130, AFL-CIO, herein
called the Union, at all material times has been and is a
labor organization within the meaning of Section 2(5) of the
Act.
3. Respondent, Pfizer, Inc., violated Section 8(a)3) and
(I) of the Act on December 4, 1978, by refusing to hire an
applicant for employment, Houston J. Alexander, for
whom a job existed, because of his membership in and ac-
tivities on behalf of the above-named labor organization.
I Respondent's hiring of Henr Lofton, a known union steward at Obear-
Nester, does not support an inference that Respondent rejected Alexander
for lawful reasons. Certainly there is no evidence that L.ofton. lke Alex-
ander, was known to Respondent as a union instigator or troublemaker.
Lofton's references from Obear-Nester are not n eidence, though appar-
entl) procured bS Watts.
Murphy testified that Watts told him, in response to Mur-
phy's question to him on November 29. that the reasons
that the responses were unfavorable were that he had trou-
ble getting along with others and performance problems, it
is difficult to understand why Murphy would state under
oath that he could not "recall if [Alexander] had a poor
attendance or work record." These contradictions by Watts
and Murphy are destructive of their credibility and require
the inference that the truth lies elsewhere.
In short, I do not believe the substance of Murphy's or
Watts' testimony, for it is clear to me that Murphy and
Watts did discuss Bauer's responses (G.C. Exh. 3), and in
fact discussed the fact that Alexander. as an ex-officer of
the Union, tended ". . . to be an instigator," and a "trouble-
maker." There is no reasonable doubt in my mind that after
and because of this discussion Watts and Murphy decided
not to hire Alexander. I conclude, therefore, contrary to
Murphy's and Watts' testimony, that one of the consider-
ations which lead to Murphy's refusal on December 4,
1978, to hire Alexander was, as alleged, Sharon Bauer's
statement to Watts that Alexander "tended to be an instiga-
tor" as ex-president of Local 130.
Fourth, in reaching this result I am also mindful of the
fact that every statement on General Counsel Exhibit 3 re-
lating to Bauer's resonses to Watts' questions is vague and,
at best, in conclusionary form except for one statement of
fact: the statement of fact being that Alexander was an ex-
president of Local 130 who tends to be an instigator. Thus,
with regard to the prior question, question 4, what Bauer
thought about Alexander's ability and job performance, the
answer is in conclusionary form and quite evasive: "Cannot
speak favorably." With regard to how he got along with
others the response is "a troublemaker." The other conclu-
sionary statement is merely the advice to stay away from
Alexander as an employee if Pfizer "did not need further
problems." The document, on its face and on balance,
therefore shows that the one clear statement of fact regard-
ing Alexander as a "troublemaker" or "instigator" is that
he was ex-president of the Union. In short, the document
notes that Alexander's attendance was acceptable, that his
termination of employment was as a "layoff," that he was a
"troublemaker" (but does not say what type of trouble),
that his ability on the job was not the subject of favorable
comment, but there was no specific type of unfavorable
comment mentioned. Again, the evidence on the basis of
General Counsel Exhibit 3 shows a concentration and par-
ticularization on only one element, that Alexander was an
instigator and troublemaker because of his status as ex-
president of the Union.
On the one hand, therefore,, in conformity with the
Board's rule in J. R. Sousa & Sons, supra, the credited evi-
dence appears to be that at least one of the reasons that
Respondent did not hire Alexander was because of the ele-
ment of union instigator appearing on General Counsel Ex-
hibit 3. Under the Board's rule such a reason is sufficient to
taint Respondent's motive in rejecting Alexander as a pro-
bationary employee.
Moreover, despite his testimony contradicting his prior
sworn statement (G.C. Exh. 6), given in the presence of his
attorney, Murphy stated therein that Respondent's policy
of not hiring an applicant whose prior employer would not
PFIZER. INC. 57
DECISIONS OF NATIONAL LABOR RELAFIONS BOARD
4. The above unfair labor practices affect commerce and
the free flow of commerce.
THI REMEI)Y
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that Respondent
cease and desist from engaging in such conduct and take
certain affirmative action designed to effectuate the policies
of the Act.
I have found that Respondent. in violation of Section
8(a)(3) and (1) of the Act, unlawfully refused to hire Hous-
ton J. Alexander. I shall recommend that Respondent offer
him immediate and full employment and that Respondent
make him whole for any loss of pay resulting from the dis-
crimination against him, commencing December 4, 1978,
by payment to him of a sum of money equal to the amount
he would have normally earned as wages from that date
until Respondent offers him initial employment as a proba-
tionary employee. Backpay shall be reduced by net interim
earnings and shall be computed on a quarterly basis in the
manner proscribed in F. W. Woolworth Company, 90 NLRB
289 (1950), and Florida Steel Corporation, 231 NLRB 651
(1977). 9
Upon the basis of the above findings of fact, conclusions
of law, and the entire record in this proceeding and pursu-
ant to Section 10(c) of the Act I hereby issue the following
recommended:
ORDER I'
The Respondent, Pfizer, Inc., its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Bottle Glass Blowers
Association of the United States and Canada, Local Union
No. 130, AFL-CIO, herein called the Union, or any other
'See, generally, Isis Plumbing & Hearing Co.. 138 NLRB 716 (1962).
to 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.
labor organization by refusing to hire or in any other man-
ner discriminating in terms and conditions of employment
against an employee or applicant for employment because
of his membership in, activities on behalf of; or sympathy
for the Union or any other labor organization.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed them in Section 7 of the Act.
2. Take the following affirmative action which is deemed
necessary to effectuate the policy of the Act:
(a) Offer to Houston J. Alexander immediate employ-
ment, without prejudice to his seniority or other rights and
privileges, dating from December 4, 1978, to the position of
probationary employee or, if that position no longer exists,
to a substantially equivalent position, and make him whole
for any loss of earnings he may have suffered as a result of
the discrimination against him in the manner set forth in
the section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and other reports necessary
to analyze the amount of backpay due under the terms of
this Order.
(c) Post at its East St. Louis, Illinois, place of business
copies of the attached notice marked "Appendix."" Copies
of the said notice, on forms provided by the Regional Di-
rector for Region 14. after being signed by an authorized
representative of Respondent, shall be posted by it immedi-
ately upon receipt thereof and be maintained by it for 60
consecutive days thereafter in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken to insure that said
notices are not altered, defaced, or covered by other materi-
als.
(d) Notify the Regional Director for Region 14, in writ-
ing, within 20 days from the date of receipt of this Order,
what steps Respondent has taken to comply herewith.
1 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
58