Pinter Bros., Inc.

National Labor Relations Board - Board Decisions

Nov 17, 1977

233 N.L.R.B. 575 (N.L.R.B. 1977)

PINTER BROS., INC.
Pinter Bros., Inc. and Truck Drivers Local Union No.
807, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca and Charlotte Destefanis and Linda Schulz.
Cases 29-CA-4946, 29-CA-4946-2, and 29-CA-
4946-3
November 17, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On May 6, 1977, Administrative Law Judge Elbert
D. Gadsden issued the attached Decision in this
proceeding. Thereafter Respondent filed exceptions
and a supporting brief and the General Counsel filed
a request that the Board correct the recommended
notice.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings and findings'
of the Administrative Law Judge, and to modify his
remedy so that interest is computed in the manner
prescribed in Florida Steel Corporation, 231 NLRB
651 (1977).2
The Administrative Law Judge found that Respon-
dent violated the Act as alleged in the complaint.
Thus, in effect, he found that Respondent violated
Section 8(a)(1), (3), and (4) of the Act in that it
discriminatorily: (1) denied employees Charlotte
Destefanis and Linda Schultz a customary Christmas
bonus in 1975; (2) denied Destefanis a wage increase
in January 1976;3 (3) laid off employees Destefanis,
Schultz, Diane Lufker, and Judith Basick on or
about April 2, and refused to reinstate all except
Basick;4 and (4) also in April, offered reemployment
to Destefanis and Schultz to more onerous positions.
However, the Administrative Law Judge, apparently
inadvertently, failed to conform his Conclusions of
Law to these findings5 and, accordingly, we do not
adopt his Conclusions of Law.
The Administrative Law Judge, in various portions of his Decision,
apparently inadvertently, fixes as "1975" the year of the April I commence-
ment of the strike and picketing. the alleged Apnl 8 recall of Basick, and the
April 6 recall of Destefanis and Schultz. The record reveals that these events
occurred in 1976.
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
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 his findings.
233 NLRB No. 83
We agree with the Administrative Law Judge, for
the reasons stated by him as amplified upon below,
that all of the unlawful conduct described above was
precipitated by the union activity of the discrimina-
tees and the fact that they either filed charges and/or
testified in a Board proceeding, and that, therefore,
the denials of bonuses and a wage increase, the
layoffs and refusals to reinstate, and the offers of
reemployment all violated Section 8(a)(4), (3), and
(1) of the Act.
With regard to Respondent's failure to grant
bonuses and a wage increase, the record establishes,
as the Administrative Law Judge found, that Re-
spondent harbored a continuing hostility against
those employees who were either involved in union
activity or in an earlier unfair labor practice
proceeding against Respondent involving the
Union's organization of Respondent's clerical em-
ployees. 6 The record further establishes that Respon-
dent's asserted reasons for the denials of the bonuses
and wage increase, i.e., declining business and failure
of the alleged discriminatees to attend company
social functions, were mere pretexts, particularly
when viewed in light of Respondent's failure to
adduce any documentary evidence to substantiate its
claim of business justification and the credited
testimony shows that Respondent did not uniformly
enforce its alleged attendance policy. Furthermore, it
is clear, both from the instant record and the Board's
previous Decision, that Respondent was opposed to
the unionization of its clerical employees. We
therefore find that Respondent used the denial of
bonuses and wage increases to retaliate against those
employees who were union adherents and who had
earlier testified against it.
Similarly, with respect to the layoffs, the record
establishes that, with the exception of Basick, only
those employees on the day shift who had been
active in the Union's organizational campaign were
selected for layoff, and that all four of the laid-off
employees had testified adversely to Respondent in
the earlier proceeding. Furthermore, the record
herein and the earlier Board Decision establish that
the alleged discriminatees were selected for layoff
while employees with less seniority were retained,
and that this selection was contrary to Respondent's
2 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
3 All dates hereinafter are 1976 unless otherwise indicated.
4 Basick was reinstated on or about April 8. In his recommended Order
and remedy the Administrative Law Judge inadvertently failed to provide
backpay for Basick. We shall modify the Order and remedy accordingly.
5 For example, he concluded that the failure to give bonuses and a wage
increase only violated Sec. 8(aX I), the layoffs only violated Sec. 8(aX3) and
(I), but the offers of reemployment violated Sec. 8(aX3), (4), and (I) of the
Act.
6 Pinter Bros., Inc., 227 NLRB 921 (1977), in which Respondent was
found to have violated Sec. 8(aX 1). (3), (4), and (5) of the Act.
575
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
usual practice of laying off employees on the basis of
seniority. Additionally, contrary to Respondent's
contention that no work was available on the day
shift, the credited testimony establishes that after the
layoffs, night-shift employees performed work previ-
ously done by the alleged discriminatees on the day
shift and that, therefore, the work was merely
transferred from one shift to another. Accordingly,
on the basis of all the foregoing, we find and
conclude that the layoffs were discriminatorily
motivated and in retaliation for the employees
testifying in a Board proceeding.7 We further find
and conclude that the refusal to reinstate Destefanis,
Lufker, and Schultz, and the eventual offers to
reemploy Destefanis and Schultz in more onerous
positions, were a continuation of Respondent's
unlawful conduct.
CONCLUSIONS OF LAW
1. Respondent Pinter Bros., Inc., is an Employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Truck Drivers Local Union No. 807, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, is a labor
organization within the meaning of the Act.
3. By failing to give employees Charlotte Destefa-
nis and Linda Schultz a Christmas bonus in
December 1975 and by failing to give Charlotte
Destefanis a wage increase in January 1976 because
of their union activity and because they filed charges
and/or testified under the Act, Respondent has
violated Section 8(a)(4), (3), and (1) of the Act.
4. By laying off Charlotte Destefanis, Linda
Schultz, Diane Lufker, and Judith Basick on April 2,
1976, because of their union activity and because
they filed charges and/or testified under the Act,
Respondent has violated Section 8(a)(4), (3), and (1)
of the Act.
5. By refusing to reinstate Charlotte Destefanis,
Linda Schultz, and Diane Lufker because of their
union activity and because they filed charges and/or
gave testimony under the Act, Respondent has
violated Section 8(a)(4), (3), and (1) of the Act.
6. By offering reemployment to employees Char-
lotte Destefanis and Linda Schultz on April 8, 1976,
to a different and more onerous position, because of
their union activity and because they testified and/or
filed charges under the Act, Respondent has violated
Section 8(a)(4), (3), and (I) of the Act.
7. By the conduct described in paragraphs 3
through 6 above, Respondent has interfered with,
T As to Basick. neither the instant record nor the Board's earlier Decision
establishes the extent of her union activity. However, inasmuch as we find
that Respondent effectuated all of the layoffs in order to discourage union
restrained, and coerced employees in the exercise of
rights protected by Section 7, and thereby violated
Section 8(a)(1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Pinter Bros., Inc., Deer Park, New York, its officers,
agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Failing to give employees Christmas bonuses
and a wage increase because they engaged in union
activity on behalf of Truck Drivers Local Union No.
807, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, or
any other labor organization, or because they filed
charges with or gave testimony to the Board.
(b) Laying off, discharging, or refusing and failing
to recall employees because of their union activity, or
because they filed charges with or gave testimony to
the Board.
(c) Offering reemployment to employees on a
different and more onerous work schedule because of
their union activity or because they had filed charges
with or given testimony to the Board.
(d) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of their
rights to self-organization, to form, join, or assist any
labor organization, to bargain collectively through
representatives of their own choosing, or to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any and all such activities.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Offer Charlotte Destefanis, Linda Schultz, and
Diane Lufker, reinstatement to their former positions
or, if such positions no longer exist, to substantially
equivalent positions, without prejudice to their
seniority or other rights previously enjoyed, and
make said employees and employee Judith Basick
whole for any loss of pay suffered by reason of the
discrimination against them with interest thereon to
be computed in the manner set forth in the Remedy,
as modified herein.
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
activity, we conclude that Basick's layoff. as well as the others, violated Sec.
8(aX3) of the Act.
576
PINTER BROS., INC.
(c) Post at its Deer Park, New York, facility copies
of the attached notice marked "Appendix."" Copies
of said notice, on forms provided by the Regional
Director for Region 29, after being duly signed by
Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able 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 29, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
8 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 EMPI.OYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT fail to give our employees
bonuses and a wage increase because of their
union activity or because they filed charges with
and/or gave testimony to the National Labor
Relations Board.
WE WILL NOT layoff, discharge, or refuse to
recall employees in order to discourage member-
ship in or support of Truck Drivers Local Union
No. 807, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, or because they filed charges and/or
gave testimony to the National Labor Relations
Board.
WE WILL NOT offer reemployment to our
employees to a different and more onerous
position because of their union activity or because
they filed charges and/or gave testimony to the
National Labor Relations Board.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights to self-organization, to
form, join, or assist any labor organization, to
bargain collectively through representatives of
their own choosing, or to engage in concerted
activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain
from any and all. such activities, except to the
extent that such rights may be affected by lawful
agreement in accord with Section 8(a)(3) of the
Act.
WE WILL offer Charlotte Destefanis, Linda
Schultz, and Diane Lufker immediate and full
reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority and
other rights and privileges, and make said
employees and employee Judith Basick whole for
any loss of pay they may have suffered by reason
of the discrimination against them, plus interest.
PINTER BROS., INC.
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge: A
charge having been filed on April 7, 1976, in Case 29-CA-
4946 by Truck Drivers Local Union No. 807, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, herein called the Union, and
individual charges having been filed on April 21, 1976. by
Charlotte Destefanis in Case 29-CA-4946-2 and Linda
Schulz in Case 29-CA-4946-3, against Pinter Bros., Inc.,
herein called Respondent, the General Counsel, by the
Regional Director for Region 29, issued the consolidated
complaint herein on May 28, 1976.1 The complaint in
substance alleges that, as a result of four of its employees
filing charges or testifying against it, Respondent failed to
give two of said employees the customary Christmas bonus
on December 24, 1975; that it failed to give one of said
employees a customary annual wage increase on January 1,
1976; that it laid off all four of said employees on April 2,
1976; and that it has since thereafter failed and refused to
reinstate three of said employees, although on April 6,
1976, it offered two of them more onerous work on a
different (night) shift; and that such conduct by Respon-
dent was restraining, coercing, and discriminating against
employees in violation of Section 8(aXI 1) and (3) of the Act.
The hearing in the above matter was held before me in
Brooklyn, New York, on October 26, 27, and 28, 1976.
Counsel for the General Counsel elected not to submit a
brief. However, a brief has been received from counsel for
Respondent which has been carefully considered.
Upon the entire record in this case and from my
observation of the witnesses, I hereby make the following:
FINDINGS OF FACT
i. JURISDICTION
Pinter Bros., Inc., the Respondent, has at all times
material herein maintained its principal office and place of
' This complaint was issued subsequent to the issuance of several
complaints and a consolidated hearing held in July and August 1975 and a
consolidated hearing held in January 1976. In the pror heanngs, Charging
Parties Charlotte Destefanis and Linda Schulz testified along with Judith
Basick and Diane Lufker as witnesses on behalf of the General Counsel.
Diane Lufker was also a charging party in one of the pror cases.
577
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
business at Carll's Path in the Town of Deer Park, County
of Suffolk, and State of New York, herein called the Deer
Park Yard, where it is engaged in the intrastate and
interstate trucking business. During the past year, a
representative period, Respondent has gross revenue from
its trucking services in excess of $5 million, and it received
revenues for services performed outside the State of New
York in excess of $50,000.
The complaint alleges, Respondent admits, and I find
that Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
Truck Drivers Local Union No. 807, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, is, and has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act.
I1I. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent is engaged in an intrastate-interstate truck-
ing business with its principal office and place of business
located in Carll's Path, Town of Deer Park, Suffolk
County, New York, herein called the Deer Park Yard.
Respondent has three types of employees; namely, truck-
drivers, platform men, and clericals. Respondent's employ-
ees Charlotte Destefanis, Linda Schulz, Judith (Judy)
Basick, and Diane Lufker testified in a Board hearing on
July 28, 29, and 30 and August 18, 19, 20, and 21, 1975, and
in other proceedings in January 1976. On December 24,
1975, Respondent failed to give Charlotte Destefanis and
Linda Schulz a Christmas bonus that they customarily
received in past years. On January 1, 1976, Respondent
failed to give Charlotte Destefanis a wage increase which
she ordinarily received in July and January.
During 1973, Truck Drivers Local Union No. 807 and
Respondent were parties to a collective-bargaining agree-
ment for the truckdrivers and platform men. The parties
herein stipulated that the National Master Agreement,
which covered Respondent's truckdrivers and platform
men, expired on March 31, 1976; that the parties to the
agreement entered into bargaining discussions, which did
not apply to the clericals, from March 31 through April 16,
1976; that at 7 a.m. on April 1, 1976, the truckdrivers and
platform men struck and commenced picketing Respon-
dent's facility located at Carll's Path; and that the
picketing continued on a 24-hour basis until noon on April
5, 1976, when the parties entered into an interim agreement
under which terms the picketing ceased and the employees
returned to work; that the work continued under the
agreement until the weekend of April 16, 1976; and that on
the following Monday, April 19, 1976, the strike and the
picketing recommenced on a 24-hour basis and continues
to the present time.2
2 The facts set forth above are undisputed and are not in conflict in the
record.
I Upon the request of counsel for the General Counsel. I take
B. Administrative Notice of Respondent's Union
Animus and Its Efforts To Rid Itself of Union
Adherents and Sympathizers
It was established in the prior proceeding reported at 227
NLRB 921 (1977), that Respondent constructively dis-
charged employee Doris Bonadonna on August 22, 41975,
in violation of the Act. It was further established therein
that prior to her discharge, Bonadonna was called into the
office by Joseph Pinter, Sr., and in the presence of Robert
Pinter, a heated discussion about Bonadonna's work
performance ensued. A pertinent portion of that January
1976 conversation with Catherine Turke in the prior
proceeding was found by the Administrative Law Judge to
have been as follows (Id at 936): 3
Robert Pinter asked if she did not agree that her
action constituted "harassment" of management. Bona-
donna said that she did not, telling the Pinters that she
might understand their attitude if she had avoided
working on the day in question, but "I worked hard.
And I'm a damn good worker."
Bonadonna began to cry because she was upset and
nervous. Pinter, Sr., told her that her work was not in
question and that Brown had always told him that she
was a good worker. Pinter, Sr., then asked if he had
ever spied on her. She said that she did not know of any
spying. He then asked if he had spied on any of the
other girls. When she indicated that she did not
understand, he asked if he had ever stood in the
hallway and spied on the girls. She said she did not
know. Pinter, Sr., then inquired if he had ever harassed
her. She said yes. He asked "When?," and as she was
about to tell him, Robert said, "All you girls do is lie.
You are all liars." He asked if she wanted to see the
"affidavits from the hearing" and kept saying that he
wanted her to read the "affidavits," and she kept
replying that she knew nothing about it. He referred
again to the "lies" that were voiced at the hearing and
said he was sure her friends had told her about the
hearing. She stated that she had been told and then
said, "Do you want to know if I signed a card for the
union? I did" (adding the last phrase before Pinter
managed to say, as he did, that he did not want to
know).
Pinter then mentioned Linda Schulz being late, and
that he hadn't said anything about her lateness while
"this was going on" (except I day when he could not
restrain himself), but that the next time she was late he
would fire her. Pinter, Sr., then referred to the girls
spending too much time in the ladies room, and asked
if she did not think this constituted harassment, and
this question was explored. At some point, Robert
Pinter said that the girls coming back late from lunch
constituted "harassment," and stated, "I did not say
anything, I was real nice while this whole thing was
going on. I have it all written down. Now that's over,
you just wait and see the changes with me." At another
point, Pinter, Sr., asked if Brown had asked her to do
administrative notice of Doris Bonadonna's testimony as credited by the
Administrative Law Judge in the prior hearing.
578
PINTER BROS., INC.
"any filing in the kitchen" when she had the chance;
Bonadonna said that she did not understand the
question.
In the above proceedings Diane Lufker testified that she
overheard office manager Jacoby tell controller Brown, "I
told the old man not to fire those two girls, but he said no,
because he doesn't want the Union in." The Administrative
Law Judge therein not only credited Lufker's testimony in
this regard but went on to state that it constituted the most
direct evidence of Respondent's discriminatory motivation
in unlawfully discharging two of its employees. In discuss-
ing why Lufker did not ask for work, Joseph Pinter said,
"Why didn't you open your mouth? You always seem to open it
at the wrong time. " and that she had a "big mouth" at times.
Counsel for the General Counsel did not submit a brief
in this proceeding, and he contends that the Administrative
Law Judge in the prior hearing also found that Linda
Schulz credibly testified and that her testimony was
damaging to Respondent; that Charlotte Destefanis and
Judith Basick also testified and their testimony was
credited. However counsel for the General Counsel did not
cite lines and pages on which such testimony was given or
findings were made, and my cursory examination of the
record within my limited time, partially discloses substanti-
ation of such findings.
Respondent in its answer has admitted that Linda
Schulz, Charlotte Destefanis, Judith Basick, and Diane
Lufker testified in Board hearings during the summer of
1975 and in January 1976. Since each of the said employees
testified on behalf of the General Counsel and Destefanis
had signed a union authorization card and engaged in
union activity, it may be reasonably inferred that their
testimony in the prior proceedings was not favorable to
Respondent. 4
Based upon the foregoing credited evidence of record, I
conclude and find that Respondent was opposed to the
clerical unionization of its business; that it criticized
employee Diane Lufker for testifying in a Board proceed-
ing; that it made an effort to learn which employees were
involved in activities on behalf of the Union; that it failed
to give Destefanis and Schulz Christmas bonuses as it
ordinarily would have; that it failed to give Destefanis a
wage increase in January 1976, while a wage increase was
given to other clerical employees; that it laid off Destefa-
nis, Schulz, Lufker, and Basick on April 2, 1976, and that it
offered more onerous employment to Destefanis and
Schulz, on a different (night) shift, so as to frustrate them
and cause them to voluntarily terminate their employment
with Respondent. I further find that such conduct by
Respondent had an interfering, restraining, and coercive
effect upon the exercise of its employees' protected rights,
in violation of Section 8(a)(1) of the Act.
4 Pursuant to counsel for the General Counsel's request, I hereby take
administrative notice of the Board's Decision reported at 227 NLRB 921.
supra, in which the Administrative Law Judge found an antiunion climate at
Deer Park Yard. manifested by Respondent unlawfully discharging
C. The Union Activity of the Four Alleged
Discriminatees and Subsequent Actions Taken by
Respondent
Charlotte Destefanis was employed by the Respondent in
July 1966 as a clerk on the 8 a.m. to 5 p.m. shift, Monday
through Friday for $70 or $80 per week. A few months later
she was promoted to interline clerk with a $5 wage
increase. In November 1976 she was promoted to secretary
to the general manager with a $5 wage increase. Around
October or November 1974 Destefanis engaged in activity
on behalf of Local Union No. 807 in organizing the clerical
staff of Respondent. She participated in organizing
meetings, signed a union authorization card and participat-
ed in a Board-held election as an observer. Subsequent to
such activity and the election, Destefanis said she last
received the customary company wage increase in January
1974, although she was told by supervisor Catherine Turke
that she (Turke) and other employees received a raise in
January 1975. Thereafter Destefanis said she did not
receive a bonus or a raise during the remainder of her
employment tenure with Respondent.
Destefanis further testified that one morning in July 1975
the following transpired:
Catherine Turke the supervisor of the girls came up
to me and said, "Has Bob Pinter spoken to you."
I said, "No."
She said, "You're supposed to report upstairs to Bob
Dolerler you will be working for him."
I said, "Just like that?"
She said, "Yes, clean off your desk and go upstairs."
I cleaned up whatever I could and I went upstairs
and told Bob Dolerler I was reporting to work.
I found out that Mr. Jacoby was not aware of the
fact I was not going to be with him that day when he
came in that morning.
What type of work did you do upon returning to Mr.
Dolerler?
I was an on hand clerk.
I handle phone calls and got disposition refused or
undelivered freight, typed on hand notices.
I also was doing secretarial work for the General
Claims Manager that including typing of letters, filing
of his correspondence.
I had to process claims and pull all the paper work
and handle the filing for that job.
In August 1975 Destefanis was called as a witness and
testified on behalf of the General Counsel in a Board
proceeding. On April 1, 1976, Respondent's truckdrivers
and warehousemen went on strike and commenced
picketing Respondent's Deer Park facility. At that time
Destefanis said supervisor Catherine Turke told her that
Pinter had asked her "What do we have here a couple of
strike breakers," referring to herself (Destefanis) and
employee Judith Basick. On April 2, 1976, she was assigned
to assist Clair Door to catch up the backlog of billing
employees, by changing its time and attendance policy in September 1975 to
deprive Diane Lufker of sufficient work to perform, by refusing to admit
prospective voters to the polling place. and by criticizing Lufker for having
testified on behalf of the General Counsel in Board proceedings.
579
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
accounts, even though she had quite a bit of her own work
to do. At 5 p.m. on the same afternoon Diane Lufker
approached her and advised her that she (Lufker) had been
laid off. At 5:15 p.m., Bill Hunt, a rate clerk, came to her
desk, called Judith over to her desk, and advised them that
he was directed to advise them that they were not needed
because there was no work due to the strike, and that they
were not to return to work until they were called. Aside
from herself, she learned that Diane Lufker, Linda Schulz,
and Judith (Judy) Basick were laid off on that same
afternoon.
Destefanis testified that at that time (April 2, 1976)
Respondent had the following clerical employees: Delores
Fletcher, Judy Basick, Linda Schulz, Gayle Tornatore,
Santa Stansell, less seniority than Destefanis; Catherine
Turke, Supervisor; John Buckley, Joan Barrie, Pinter's
secretary; Clair Door, Diane Levco, Doris Miller, Pat (last
name unknown).
On the following Tuesday, April 6, 1976, Destefanis said
she received a telephone call from Joan Barrie, Pinter's
secretary, who advised her that she could return to work
that Tuesday on the II p.m. shift. She said she had never
been asked to work the night shift before so she asked to
speak to Joseph Pinter but was advised that he was in
conference and she would have to come into the Compa-
ny's office. She then asked to speak to Bob Pinter and her
conversation with him was as follows:
Which Mr. Pinter did you wish to speak with at that
time?
Joseph Pinter, Sr.
Did you go to Pinter Brothers on April 6th?
Well when Mrs. Barrie told me that Mr. Pinter was
in conference I said, "Well is Bob Pinter there?" She
said, "Yes he is." She put Bob on the phone and I said,
"Bob I would like to know who do you have working
there on the day shift with less seniority than myself?"
He said, "I don't have to tell you a damn thing."
I said, I started to say I felt he had a responsibility to
me and he said, "I am not responsible to you and I
don't have to tell you anything."
I said, "All right."
I said as far as working, as far as working, a night
shift I would have to call him back.
Destefanis said she then called Judy Basick and learned
that Judy too had had a similar experience. She then asked
Basick if she would join her in going to see Pinter, and
Basick agreed to do so. They arrived at the Respondent at
11:30 a.m. but were advised by Joe Pinter that Bob Pinter
was tied up in negotiations and they would have to call him
for an appointment. Destefanis said she observed all the
clerical employees (including the temporary employee)
working in the office but none of them were performing the
duty she ordinarily performed. She and Judy left the office
and went to lunch but returned later that afternoon when
they were advised by Joseph Pinter that Bob Pinter would
see them one at a time. Destefanis continued to testify as
follows:
s I credit Destefanis' essentially undisputed testimony not only because I
was persuaded by her convincing demeanor on the witness stand but also,
because her version is consistent with Respondent's antiunion history as
I told Mr. Pinter I wanted Judy in there with me
when I was in the office because on other occasions he
had girls in there for such a talk he would have Bob
Pinter in there plus a secretary taking down notes and I
wanted a witness on my behalf.
He said, "No." He would see us one at a time or not
at all.
I argued the point with him further and said-and
finally I gave up and said, "I will do it his way." We
started to go into Mr. Pinter's office Mr. Pinter, Mr.
Robert Pinter, told Judy "go sit in the lobby and wait."
Destefanis said she then asked Pinter, Sr., why were girls
in the office with less seniority than herself still working.
He said he did not know and when she asked could he find
out, he said, "I could" and smiled. She told him that there
was not a job out there that she could not handle and
Pinter said, "That is because you have a mouth. " When she
asked him what did he mean she had a mouth, he said,
"Just what I saia4 you have a mouth." When she asked him
to ask her supervisor, Jacoby, about her work, he said,
"You had him snowed." She then asked him what did he
mean because she always did her best work. Pinter said,
"That is why you testified he was spying. " When she asked
him what did he mean she never said anything like that, he
said, "I don't mean you I mean all of you" and he refused to
discuss the matter further. When she insisted on him
answering her, he said, "Do I have to have you put out of
here." As she left she advised Pinter that she would have to
call him back to let him know about working that night at
11 p.m. Pinter said call him by 6 o'clock or don't come
back at all.
Pinter told Destefanis some of the work was being
transferred to the night shift but he did not know what kind
of work she would be performing. She later called Pinter
and advised him that her husband said that she could not
work at night but she was willing to work in the daytime.
He said all right if we can find something on days we will
give you a call. She has not received a call from
Respondent to return to work.
Destefanis further testified that Judy Basick returned to
work on the day shift to handle claim five interline
accounts which she too can do as well as other clerical
work which was being performed by other employees. She
could not recall Respondent ever having had a layoff.
When work was slow, Respondent would have them clean
off desk or clean up closets and Joseph Pinter once said in
a meeting prior to the election, that rather than laying
anyone off he would sooner go on a 4-day week if
everybody was agreeable. Respondent's promotion policy
was to promote from within. She did not know whether
Linda Schulz received a raise or bonus in 1976. And she
did not know that 10 people were laid off on the night crew
on April 1, 1976.5
Based upon the foregoing credited evidence of record, I
hereupon conclude and find that in November 1974
Charlotte Destefanis was engaged in union activity-
having served as an observer in a Board-held election and
found in the prior Board proceeding. and because Joseph Pinter. Sr., did not
appear and testify about conversations Destenfanis held with him or in his
presence.
580
PINTER BROS., INC.
having testified against Respondent in Board proceeding in
July and August 1975; that Respondent had knowledge of
such activity on the part of Destefanis; that as a result of
such activity Respondent failed to give Destefanis the
Company's annual wage increase in January 1976 and the
customary Christmas bonus in December 1975; that such
bonus and wage increase were given to supervisor Cather-
ine Turke and other employees, that Destefanis testified in
Board proceeding on behalf of the General Counsel in July
1975; that in July 1975 Destefanis was precipitously
assigned to a lesser responsible job under another supervi-
sor, even though she had sufficient work and her salary was
not reduced; that Respondent's truckdrivers and ware-
housemen went on strike on April 1, 1976, and Pinter
referred to Destefanis and Judy Basick as "strikebreaker";
that on April 2, 1976, Respondent precipitously laid off
Charlotte Destefanis, Linda Schulz, Diane Lufker, and
Judith (Judy) Basick, allegedly because of insufficient work
occasioned by the strike; that on April 6, 1976, Respondent
recalled Destefanis for work on the night shift and refused
to recall her for the day shift, although it recalled Judith
Basick for the day shift to do the work (Destefanis)
previously performed; that Basick had less seniority than
Destefanis; that when Destefanis asked Respondent
(Joseph Pinter, Sr.,) why were clericals with less seniority
than she recalled on the day shift, Respondent (Joseph
Pinter, Sr.,) said, "That is because you have a big mouth";
that when Destefanis asked him what he meant, Pinter, Sr.,
said that is why you testified he (Pinter) was spying; that
when she asked for further explanation Pinter, Sr., said, "I
don't mean you I mean all of you, " and he refused further
discussion on his remarks; and that although Destefanis
did accept the night shift and worked 2 or 3 nights, she
resigned after Respondent refused to give her the day shift,
with the promise to call her for daywork should such work
develop. Destefanis has not been recalled for daywork by
Respondent.
Linda Schulz was employed by Respondent in March
1969 as part-time clerk-typist for $60 a week for 20 hours.
She became employed full-time in June of 1969 for $125
per week. She was transferred from the warehouse to the
interline department in October 1975, earning $175 per
week. She last received a raise in January 1976 but she did
not receive a bonus or a raise in 1975. In 1976, Schulz said
Catherine Turke asked her if she had received her
Christmas bonus (for 1975) and she replied "no"; that
Turke then said "everybody got theirs, that is, Judy Basick,
but you (Linda Schulz), Charlotte Destefanis, and Diane
Lufker did not get a bonus. Schulz said she too testified in
a Board hearing on behalf of the General Counsel in
August 1975 before she was transferred.
About 5:15 p.m. on or about April 2, 1976, Schulz said
she was advised by her former supervisor, Lee Brown, that
Respondent was letting her go: that Joseph Pinter gave
instructions to Brown to lay her off because of the strike
and consequent slow work. She asked him if it was
temporary or permanent and he said "It does not look
6 The parties stipulated that Catherine Turke is a supervisor for purposes
of this proceeding.
I I was persuaded by the straightforward and nonexaggerating manner in
which Linda Schulz testified that she was telling the truth. I particularly
good" He said he knew she was a good worker and she
could use him for a reference. After her layoff on April 2,
1976, she received a telephone call from Joan Barrie,
Joseph Pinter's secretary, asking her if she could report for
work that evening at 10 p.m. She went into the office to
talk to Pinter about it and noticed Judy Basick was doing
her job at that time. When she entered Pinter's office, the
latter called supervisor Catherine Turke. Schulz then said
she noticed that Judy Basick was doing her job and Turke
said she thought Judy was a better worker on the job than
Schulz was because she handled the job once before. After
he told her there was no daywork but only nightwork, she
advised him that she had religious commitments once a
week that conflicted with those hours. Pinter and Schulz,
nevertheless, agreed that she would come into work at 10
and on the other two evenings she could report at 11 p.m.
to 7:30 a.m.
While employed Schulz typed manifests, outgoing
manifests, truckers' delivery local manifests, and some
onhand notices and personal letters for Dolerler. Schulz
performed the work previously preformed by Destefanis
and Judy Basick. She only worked 3 nights and she found
she could not take it, so she went to Pinter the following
morning and asked for daywork. He told her he did not
have any daywork for her. At that time she observed Judy
Basick and Catherine Turke 6 along with others working.
Schulz said she did not know the night staff was laid off in
April and she acknowledged that she has had no experi-
ence with computers, key punching, or accounts receiva-
ble.7
Diane Lulker was employed by Respondent on Novem-
ber 7, 1971, as a file clerk, and thereafter performed several
other clerical jobs (microfilming of delivery receipts and
manifests, billing clerk, and accounts receivable clerk until
April 2, 1976) as she advanced in salary. She received her
last wage increase in July 1974 and her last Christmas
bonus in December 1973. She previously testified on behalf
of other employees at a Board proceeding and once on
behalf of herself in another Board proceeding, regarding
Respondent's change of leave policy. (She was told by
supervisor Charles Brown "there was no more being late,"
and that if she were late, she was gone home. She was
advised if she had a doctor's appointment she had to take
the whole day.)
Lufker further testified that she too was laid off on April
I or 2, 1976, and that she learned of the layoff of
Destefanis, Basick, and Schulz. At the time she was laid off
she said there was no shortage or decrease in the available
work which she performed. She was never offered rein-
statement by Respondent. However, when she went to pick
up her vacation pay 2 weeks after her discharge, and spoke
with supervisor Charles Brown, she observed Doris Miller,
Clair Door, and the temporary employee, Ruth, working.
Ruth was doing accounts receivable, the very job that
Lufker performed prior to her layoff. Among the people
working that day were Joan Buckley and bookkeeper Peter
noted that her testimony. in part, corroborates the testimony of Charlotte
Destefanis that Catherine Turke told her "everybody" received a Christmas
bonus except herself (Schulz). Charlotte Destefanis. and Diane L.ufker.
581
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cautain, both of whom were employed after her, as well as
the temporary employee. Lufker 8 is 25 years of age and she
completed high school.
Respondent Witnesses
Charles Brown was employed by Respondent as a
bookkeeper in February 1969 but has been a controller
since March 1970. He testified that because of an increase
in business during the years 1971 to 1973, Respondent
started considering the computerization of its business
operation. In June 1974 it made a definite decision and
ordered the equipment and purchased the program. At that
time Respondent had about 35 nonsupervisory clerical
personnel, and in early 1975 Respondent decided to
centralize the accounting procedures.
Brown explained that the transfer of Linda Schulz from
the warehouse department to the interline accounts and
five plan was caused by a reduction in warehouse work
occasioned by computerization. He said Rose Henn was
switchboard operator and she did some accounting for
$190 a week. The accounting work was not needed so
Respondent terminated Henn and bought in a part-time
temporary employee to operate the switchboard on an as-
needed basis during January and February for $100 a
week. When the temporary employee left, Respondent did
not replace her because there was a decline in its bills of
lading. He said Respondent did not give the clerical staff a
wage increase in January nor July 1975, but only to those
newly hired employees who were promised the same upon
their initial employment. The failure to grant such an
increase was due to the economic decline in business and
because of charges which had been filed with the Board.
On April 1, 1976, Brown said Respondent's operations
were halted as a result of a picket line at the main gate.
Respondent decided to layoff the night clerical crew
because there was no work from the idle trucks; and that
on April 2, 1976, Respondent's managerial staff met and
evaluated the clerical needs for its limited business
operation.
Controller Brown further testified that he recommended
terminating Diane LuJker for her poor attendance and the
shortage of work resulting from computerization of the
operation. He said he recommended terminating Linda
Schulz in interline payables, and Judy Basick in the rate
department, because they were not needed as a result of
computerization. When business operations were resumed,
the night crew was recalled. However, on April 19, the
strike resumed and he considered job performance in
making additional cuts in personnel staff. He said because
of Diane Lufker's absences he told her as a result of the
strike he had to let her go even though she was going to be
I I credit the testimony of Diane Lufker to the effect that she did not
receive the wage increase or Chnstmas bonus in 1975 or 1976; that after
testifying in a Board proceeding on behalf of the General Counsel in July
and August 1975, she was advised by Supervisor Charles Brown that she
could not be late anymore, and if she were, she would be terminated; that
she had sufficient work to perform on the date (April 1 or 2, 1976) when she
was laid off: that 2 weeks thereafter she observed Doris Miller and Claire
Door working, and the temporary employee performing the job she did just
pnor to her layoff; and that she also observed Joan Buckley and bookkeeper
Peter Cautain working, although both of them were junior to her in time of
employment. I credit Lufker's testimony because I was persuaded by her
terminated in any event as a result of computerization.
When Bob Pinter discussed it with him he said he told Bob
Pinter "Well, I had been thinking about letting Diane go
because her work load was down, her attendance was bad, and
she just wasn't contributing on the scale that was necessary in
the changeover operations." He said he thought the lack of
work played a role in her attitude.
In explaining how and why Respondent recalled Judy
Basick as opposed to the other three dischargees, Brown
said that at the time of the discharges in April he was under
the impression that the computer operation was working
efficiently and two girls were not needed in interline.
However when he learned on Monday or Tuesday that the
computer operation was not working, the need for an
additional girl became obvious. After discussing the recall
of Judy Basick and Linda Schulz with Catherine Turke,
Gayle Tornatore, and Bob Pinter, Catherine Turke showed a
preference to Judy Basick. Although Judy had worked
there since October 1975 and was not familiar with the
computerization, he (Brown), nevertheless, recommended
Judy Basick for recall. He acknowledged that Respon-
dent's layoffs and recalls were based upon seniority.
Brown conceded that Linda Schulz had the most recent
experience with the computer and was a superior typist.
But he felt it was better to put Judy Basick on the day
interline payables and put Linda Schulz on the typing job
at night, and that is why Linda Schulz was recalled for
nightwork. The need for night people was increasing until
the strike, when there was no work for the night crew, and
that is why the night crew was laid off. During the strike, he
and the programmer investigated the computer operation
for flaws. However, since the night operation ceased they
continued the investigation and testing during the day.
Brown admitted that he only told Diane Lufker she was
discharged on account of the strike, while in fact he had
other reasons such as the decline in her work performance
and absenteeism, about which he admittedly did not tell
her. The night clericals were laid off on April 1. They were
recalled on April 6 and they were laid off again on April 19
until the present time. Respondent's business is currently
being operated by management: Joseph Pinter, Sr., Robert
Pinter, Joseph Pinter, Jr., Franklin Pinter, Ernie West,
maintenance director, Donald Hotehinson, foreman of the
shop, Stanley Remenchus, who is on a part-time basis as a
maintenance man, and Joseph Franklin, a supervisor.
Brown said Judy Basick was laid off on April 2 with the
other three dischargees but she was recalled on or about
April 7, until laid off again on May 21.
Brown further testified that Cautain was hired with the
ultimate objective of taking over the job performed by
Doris Miller. 9
sincere demeanor on the witness stand, by the fact that parts of her
testimony are supported by the documentary evidence (C. P. Exh. I) herein,
and by the fact that her testimony is consistent with the tenor of all the
credited evidence of record and with the antiunion attitude of Respondent
as found in the prior Board proceeding.
9 I credit a substantial portion of controller Brown's testimony with
respect to a period of economic decline in Respondent's business and
Respondent's efforts to computerize its business operation. However, I do
not credit other aspects of his testimony with reference to Respondent's
reasons for laying off Destefanis. Schulz, Lufker, and Basick. and its failure
to recall Destefanis, Schulz, and Lufker to perform the same or similar work
582
PINTER BROS.. INC.
Robert Pinter, president and chief operating officer of
Respondent testified that in considering wage increases or
salary, Respondent considered work performance, job
responsibility, and longevity of the employee, after consul-
tation with the employee's supervisor. He said that there
was no periodic across-the-board wage increase in January
or July 1975 because that was probably the worst year for
all trucking companies. Respondent's bill accounts were
down 10 percent, revenue was down a little, except for
Respondent's raising rates.
Robert Pinter further testified that Respondent, on two
occasions, held breakfast for its employees for the purpose
of affording an opportunity for all employees to know each
other and receive information from Respondent, which
would help to coordinate the Respondent's business
operation properly; and that the employees' participation
therein was considered in determining whether he or she
would receive a bonus. He said Linda Schulz did not
attend these functions and she had a very poor work and
time attendance record. Therefore, Respondent decided
not to give Schulz a bonus. With respect to Diane Lufker,
he said she did not attend the company affairs and had a
poor attendance record, so she was not given a bonus. He
said that, although Judy Basick did not attend these
functions, her attendance and participation was not as
poor as Linda Schulz and Diane Lufker, and she received a
bonus.
Robert Pinter essentially corroborated the testimony of
Brown about the business increasing, etc. He said not only
did he approve the layoffs but he thought that there should
have been more layoffs. He stated that there was no
difference in pay for nightwork. When Destefanis, Schulz,
and Lufker were called to testify at the National Labor
Relations Board proceeding, their records were simply
marked "absent" without explanation. His father, Joseph
Pinter, Sr., considered attendance at company functions
very significant but he did not. Periodic general raises were
based upon what the Teamsters were getting (as a guide)
every 6 months. However, Pinter said that as of January
1976 the practice of following the Teamsters wage increase
was not followed by Respondent.
Although some employees received raises in January of
1976, Destefanis did not because of her job switch to a
lower job at the same salary, and he (Robert Pinter)
thought she was earning too much in that job capacity to
receive a raise.' 0
Analysis and Conclusions
The answers to the issues presented for decision in this
proceeding appear to depend in great measure upon whose
testimonial version is believed. The Union, Charlotte
Destefanis, and Linda Schulz contend that Respondent
on the same work shift. I discredit the latter aspect of controller Brown's
testimony because I particularly observed how uneasy he appeared on cross-
examination when asked about Respondent's reasons for transferring
Destefanis and Schulz. his reasons for laying off all four of the dischargees.
and his failure to recall Destefanis. Schulz. and Lufker for work on the
daytime shift. His responses sounded rehearsed and highly technical, and it
was unpersuasive.
10 Essentially, I credit the testimony of Robert Pinter with respect to
Respondent's practice of giving a Christmas bonus and biannual wage
increase, and how Respondent was computerizing its business office
discriminatorily failed to give Charlotte Destefanis, Linda
Schulz, and Diana Lufker their annual Christmas bonus in
1975, and that it failed to give Destefanis her biannual
wage increase in January 1976, because of their activity on
behalf of the Union (testifying in Board proceedings in
July and August 1975). Respondent contends that the wage
increases and bonuses were not given in an across-the-
board fashion in 1975-76 because of economic decline in
its business and because Destefanis, Schulz, and Lufker did
not attend occasional company social functions.
The Union, Destefanis, Schulz, and Lufker also contend
that Respondent, for the same above-stated discriminatory
reasons, thereafter laid off Destefanis, Schulz, Lufker, and
Judith Basick on April 2, 1976, and has since that time
failed and refused to reinstate Destefanis, Schulz, and
Lufker to their positions or positions similar thereto. In this
regard, counsel for the General Counsel more emphatically
contends that Linda Schulz and Charlotte Destefanis'
testimony at the Board hearings in July and August were
most damaging to the interest of Respondent. Respondent,
on the contrary, contends that Destefanis was laid off
because there was no work for her to do as a result of the
strike and picketing commenced on April 1, 1975; and that
Respondent did recall Judith Basick for work on the day
shift on April 8, 1975.
The above-named three Charging Parties further contend
that Respondent did recall Charlotte Destefanis and Linda
Schulz on April 6, 1975, for more onerous work on a more
onerous (night shift as distinguished from the day shift
which they had worked) basis, because they joined the
Union, assisted it, filed charges against Respondent and
testified adversely against it in the Board proceedings held
in July and August 1975. However, Respondent contends
that it offered Destefanis and Schulz different work on a
different (night) shift because that was the residue of work
available subsequent to progressive computerization on its
business operations.
In examining the evidence of record in reference to the
several contentions by the contesting parties, it is borne in
mind that Respondent has an antiunion history predating
the union election held on March 26, 1975, as established
in the prior Board Decision reported at 227 NLRB 921
(1977), and of which decision I take administrative notice.
With that background in mind, I particularly note that
Charlotte Destefanis served as an observer during the
election held on March 26; that she filed unfair labor
practice charges against the Respondent on April 21, 1976;
that Linda Schulz filed unfair labor practice charges
against Respondent on April 21, 1976, and that Destefanis
and Schulz testified adversely against Respondent in a
Board proceeding held on July 28, 29, and 30 and August
18, 19, 20, and 21, 1975. Respondent was found to have
violated the Act in several respects and was ordered to
operations. However. I do not credit certain aspects of his testimony which
tend to impose unpublicized conditions on the grant of Christmas bonuses
and wage increases since they were not given to some of the dischargees
herein. In this regard, I discredit Pinter's testimony because I believe he was
exaggerating the significance of the scope of the computerization of his
business operations and his policy of giving bonuses to employees who
attended company social functions, so as to justify Respondent's failure to
grant bonuses and/or wage increases to the dischargees who gave
detrimental testimony against Respondent in the prior Board proceeding.
583
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
offer reinstatement to three of its unlawfully discharged
employees, and to recall two of its unlawfully laid-off
employees.
Perhaps the most discerning feature of significance in
evaluating the evidence of record is the time proximity of
the actions taken by Respondent, in comparison with the
time that the unfair labor practice charges were filed and
the Board hearings held, in which Destefanis, Schulz,
Lufker, and Basick testified. In this regard, it is particularly
observed that Charlotte Destefanis was precipitously
assigned, without notice or explanation, to a job of lesser
significance in July 1975; that Destefanis and Schulz were
not given the customary Christmas bonus in December
1975; and that Destefanis did not receive the customary
biannual wage increase in January 1976, even though some
other clerical employees received such bonus and wage
increase. Admittedly, when the latter two actions taken by
the Respondent are considered in the absence of the other
credited evidence of record, it is not unreasonable to accept
Respondent's explanation that the bonus and wage
increase were not given to Destefanis and Schulz as a result
of economic decline in business and the failure of said
dischargees to attend occasional company social functions.
Moreover, it is conceivable that the timing of such actions
by Respondent might very logically be attributed to mere
coincidence. However, I defer a definitive evaluation of
these two actions taken by Respondent until I conclude my
evaluation of all the credited evidence of record.
While the timing of Respondent's layoff of Destefanis,
Schulz, Lufker, and Basick appears to have been an
appropriate consequence of the strike and picketing on
April 2, 1975, as Respondent contends, I note that the four
dischargees in this case were assisting the Union as were
the five dischargees in the prior proceeding (227 NLRB
921, supra). Respondent acknowledged that, in the past, its
policy of layoff and recall had been based upon seniority in
employment tenure. However, it is observed that Destefa-
nis has been employed with Respondent since July of 1966,
Schulz since June 1969, and Basick since September 1969.
Notwithstanding the fact that Clair Door has only been
employed with Respondent since August 1970 and Doris
Miller since June 1969, they, nevertheless, were not laid off
by Respondent on April 2. So it is clear that Respondent
did not follow its past seniority policy in its recent layoffs
of the dischargees in April. This change in layoff policy
raises a strong inference that Respondent was trying to rid
itself of all employees who strongly assisted or supported
the Union. This inference is not eliminated by the fact that
Respondent recalled Judy Basick on April 8, 1976, to work
on the day shift.
Although Respondent recalled Charlotte Destefanis and
Linda Schulz on April 6, 1975, to perform some unspecific
work on the night shift, which shift neither employee
wanted to work, I do not believe the evidence of record
would allow me to construe the Respondent's offer of such
work as a bona fide offer of reinstatement. Even though I
credit a substantial portion of Respondent's evidence of the
computerization of its business, I have misgivings about
some of the inconsistencies in the Respondent's evidence,
such as: Respondent's deviation from its past policy of
seniority for layoff and recall, the precipitous nature of the
layoffs without any prior discussion or explanation to the
dischargees, except for the strike, and particularly the
heated conversations that Joseph Pinter, Sr., had with
Charlotte Destefanis when she visited him to request
daywork. These conversations clearly suggests that the
Respondent was venting its antipathy of Destefanis for
having testified in the prior Board proceeding. At no time
had Respondent told any of the dischargees that their jobs
would eventually be phased out in favor of computeriza-
tion. When all these factors are considered, I am persuaded
that it is reasonably inferred that Respondent's offer of
reinstatement was designed to frustrate Destefanis and
Schulz, and thereby cause them to reject or resign their
positions.
Finally, while I am willing to concede upon the
Respondent's evidence that it was experiencing a slight
economic decline in its business and that the computeriza-
tion of its operations was reducing the need for its large
clerical staff, I am not persuaded by the evidence of record
that these were the only and primary reasons why
Respondent laid off the four dischargees and thereafter
failed to recall three of them. This is especially so when it is
recalled that Respondent has never had a layoff in the past
and the record does not show that it contemplated one
before the strike on April 2. Although Respondent told the
four dischargees they were being laid off because of lack of
work, during this proceeding, Respondent for the first time
said Diane Lufker's discharge was related to her absentee-
ism and her slow performance on the job. Respondent did
not produce any evidence that it had ever issued a warning
to Lufker about her attendance or slow work performance.
With respect to Linda Schulz, Respondent (Brown)
acknowledged that Schulz had the most recent experience
with the computer, was a good worker, and a superior
typist. However, Respondent said it heeded to the
preference of supervisor Catherine Turke for the recall of
Judy Basick, rather than Linda Schulz, even though Basick
had less seniority. When these explanations by Respondent
are considered in conjunction with the total evidence of
record, the proximity in time of the several actions taken
by the Respondent as compared with the time occurrence
of the Board hearings in which the dischargees testified, it
becomes obvious that the Respondent's newly expressed
complaints about the attendance and work performance of
Lufker, and Supervisor Turke's selection of Basick over
Schulz, are a mere pretext and not the motivating reasons
for the Respondent's actions.
Consequently, after a thorough review of all of the
evidence of record, including the Board's decision in the
prior proceeding, I am thereby persuaded that the
Respondent's layoff of Charlotte Destefanis, Linda Schulz,
Diane Lufker, and Judy Basick on April 2, 1975, as well as
Respondent's failure to recall Destefanis, Schulz, and
Lufker, were substantially motivated by their filing of
unfair labor practice charges with the Board and testifying
in the Board proceedings which followed. I therefore find
that Respondent's conduct described in paragraphs 9
through 15 of the complaint herein interfered with,
restrained, and coerced its employees in the exercise of
Section 7 rights, in violation of Section 8 (aXl) of the Act;
that Respondent's conduct described in paragraphs 9
584
PINTER BROS., INC.
through 14 of the complaint herein is discriminatory and
violative of Section 8(a)(3) of the Act; and that Respon-
dent's conduct described in paragraphs 9 through 13 and
15, is discriminatory against the dischargees in violation of
Section 8(4) of the Act.
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices warranting a remedial Order, I shall
recommend that it cease and desist therefrom and that it
take certain affirmative action to effectuate the policies of
the Act.
It having been found that Respondent interfered with,
restrained, and coerced its employees, Charlotte Destefa-
nis, Linda Schulz, Diana Lufker, and Judith Basick in the
exercise of their protective Section 7 rights, in violation of
Section 8(a)(1) of the Act; that Respondent discriminatori-
ly failed to give employees Charlotte Destefanis and Linda
Schulz a Christmas bonus in December 1975; that it
discriminatorily failed to give Char!otte Destefanis a wage
increase in January 1976; that on April 2, 1976, Respon-
dent discriminatorily laid off Charlotte Destefanis, Linda
Schulz, Diane Lufker, and Judith Basick, and has since
that time failed and refused to recall or offer reinstatement
to Charlotte Destefanis, Linda Schulz, and Diane Lufker;
that on or about April 8, 1976, Respondent discriminatori-
ly offered reemployment to employees Charlotte Destefa-
nis and Linda Schulz on a different and more onerous
work shift in violation of Section 8(a)(3) of the Act; and
that Respondent discriminatorily offered reemployment to
Charlotte Destefanis and Linda Schulz on a different and
more onerous work shift in violation of Section 8(a)(4) of
the Act, all because the dischargees, Destefanis, Schulz,
Lufker, and Basick either filed charges and/or gave
testimony under the Act. The recommended Order will
provide that Respondent recall or offer to recall Charlotte
Destefanis, Linda Schulz, and Diane Lufker to its employ
as of the date of April 2, 1975, offer them reinstatement to
their jobs, and make them whole for any loss of earnings
within the meaning and in accord with the Board's decision
in F. W. Woolworth Company, 90 NLRB 289 (1950), and
Isis Plumbing & Heating Co., 138 NLRB 716 (1962), except
as specifically modified by the wording of such recom-
mended Order.
Upon the basis of the above findings of fact and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
I. Respondent Pinter Bros., Inc., is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Truck Driver's Local No. 807, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, is and has been at all times material
herein, a labor organization within the meaning of the Act.
3. By failing to give employees Charlotte Destefanis
and Linda Schulz a Christmas bonus in December 1975
and by failing to give Charlotte Destefanis a wage increase
of January 1976 because they either filed charges and/or
testified under the Act, Respondent interfered with,
restrained, and coerced its employees in the exercise of
rights protected by Section 7, in violation of Section 8(a)(1)
of the Act.
4. By laying off Charlotte Destefanis, Linda Schulz,
Diane Lufker, and Judith Basick on April 2, 1975,
Respondent discriminated with respect to employees hire
and tenure of employment in violation of Section 8(a)(3)
and (I) of the Act.
5. By offering reemployment to employees Charlotte
Destefanis and Linda Schulz on April 8, 1975, on a
different and a more onerous work shift, Respondent
violated Section 8(a)(3) and (1) of the Act.
6. By offering reemployment to Charlotte Destenfanis
and Linda Schulz on a different and more onerous work
shift because they either filed charges and/or gave
testimony under the Act, Respondent has violated Section
8(a)(4) of the Act.
[Recommended Order omitted from publication.]
585