Taylor & Gaskin, Inc.

National Labor Relations Board - Board Decisions

Nov 19, 1985

277 N.L.R.B. 563 (N.L.R.B. 1985)

TAYLOR & GASKIN, INC.
Taylor & Gaskin, Inc. and Robert Watko . Case 7-
CA-18840
19 November 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 8 February 1982 Administrative Law Judge
Sidney J. Barban issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its, authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,' and
conclusions2 and to adopt the recommended Order
as modified.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Taylor & Gaskin, Inc., Detroit, Michi-
gan, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modi-
fied.
1. Substitute the following for paragraph 2(a).
"(a) Offer Robert Watko immediate and full em-
ployment in the Respondent's shop in the first job
which became available after 19 December 1980,
for which he was qualified or, if that job no longer
exists, to a substantially equivalent job, without
' 'rhe Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cur. 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 We have adopted the judge's finding that the Respondent violated
Sec 8(a)(4) and (1) of the Act when it refused to rehire laid-off employee
Robert Watko because he had filed an unfair labor practice charge
against the Respondent The Respondent excepted to the judge' s state-
ment that Wright Line, 251 NLRB 1083 (1980), does not apply to cases
where there is a finding that the asserted "legitimate business reason" for
the adverse action is pretextual We do not agree with the judge that
Wright Line does not apply to pretext cases See Limestone Apparel Corp.,
255 NLRB 722 (1981), and Castle Instant Maintenance/Maid, 256 NLRB
130 (1981)
Our disagreement with the judge does not change the result here, for it
is clear that he made the necessary findings to support the violation
Thus, as the judge found that the Respondent had knowledge of Watko's
protected activity, its animus and the timing of the refusal to rehire, only
a few weeks after the settlement of the alleged unfair labor practice, sup-
port the finding of a violation The Respondent failed to come forward
with legitimate business reasons for its refusal, as the proffered evidence
of purportedly unacceptable absenteeism and poor work production
during Watko's prior employment were belied by the evidence that his
absences had been excused, and his work record contained no warning or
criticism of any kind concerning his productivity We therefore adopt the
judge's findings.
563
prejudice to his seniority and other rights and
privileges, and make him whole for any loss of
earnings or benefits he may have suffered from the
date the job became available, in accord with the
provisions set forth in the section of the judge's de-
cision entitled `The Remedy."'
2. Insert the following as paragraph 2(c) and re-
letter the subsequent paragraphs.
"(c) Remove from its files any reference to the
unlawful discharge and notify the employee in
writing that this has been done and that the dis-
charge will not be used against him in any way."
3. 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
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to hire, reemploy, or other-
wise discriminate against employees because they
file charges with, or otherwise aid and assist the
National Labor Relations Board in the performance
of its functions.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them by Section 7
of the National Labor Relations Act.
WE WILL offer Robert Watko immediate and full
employment in the Respondent's shop in the first
job which became available after 19 December
1980, for which he was qualified or, if that job no
longer exists, to a substantially equivalent job,
without prejudice to his seniority and other rights
and privileges, and make him whole for any loss of
earnings or benefits he may have suffered from the
date the job became available, less any net interim
earnings plus interest.
WE WILL remove from our files any reference to
the unlawful discharge and notify the employee
Robert Watko in writing that this has been done
and that the discharge will not be used against him
in any way.
TAYLOR & GASKIN, INC.
Dwight R. Kirksey, Esq., for the General Counsel.
Stanley C. Moore, III, Esq. (Riley & Roumell), of Detroit,
Michigan, and David M. Gaskin, Esq. (Dahlberg, Mal-
lender and Gawne), of Detroit, Michigan, for the Re-
spondent.
277 NLRB No. 65
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
SIDNEY J. BARBAN, Administrative Law Judge. This
matter was heard at Detroit, Michigan, on July 10, 1981,
upon a complaint issued on March 12, 1981, based on a
charge filed .on February 2, amended on March 9, 1981.
The complaint alleges that Respondent Taylor & Gaskin,
Inc. violated Section 8(a)(1) and (4) of the National
Labor Relations Act (the Act) by failing and refusing to
hire Charging Party Robert Watko because he filed an
unfair labor practice charge against Respondent in Case
-7-CA-17005. The answer to the complaint denies the
unfair labor practices alleged , but admits allegations of
the complaint sufficient to justify the assertion of juris-
diction under the Board's present standards (Respondent,
engaged at Detroit, Michigan, in the manufacture, sale,
and distribution of conveyor systems, industrial washing
equipment, and related products , in a recent annual
period, purchased and had delivered directly from points
outside the State of Michigan to its Detroit facility goods
and materials valued in excess of $50,000).
On the entire record in this case, from observation of
the witnesses and their demeanor , and after due consider-
ation of the briefs filed by Respondent and the General
Counsel, I make the following
FINDINGS AND CONCLUSIONS
1. THE FACTS
A. Introduction
Robert Watko was first employed by Respondent in
1973 as a personnel clerk. At the time his father was em-
ployed as a manager of manufacturing in Respondent's
operations. Robert Watko left Respondent in 1977, but
was rehired in the fall of 1978, again as a personnel
clerk. The following July, Watko was transferred, at his
request,' to a job as general laborer in the bargaining
unit at the plant. Within 3 or 4 days after this transfer,
Watko's father, who had been suffering with cancer for
some time , though working to the end, died. It appears
that during this period there developed some feeling of
conflict between Watko and Terry Cauley, whom Re-
spondent was grooming to take Watko's father 's place,
apparently bcause Watko thought that his father was not
being well treated.
Less that 2 months after his father's death, while
Watko was recuperating from a back injury suffered at
work, he was notified that he was being laid off. On Oc-
tober 30, 1979, Watko filed an unfair labor practice
charge in Case 7-CA-17005 against Respondent because
of his layoff. The charge was settled in December on the
basis that Watko received backpay, but waived any right
to reinstatement.
In the late spring of 1980, in a chance encounter at the
plant with Respondent's president, Michael Gaskin,
I This is Watko 's testimony There is an indication in the testimony of
Michael Gaskin , president of Respondent , that he understood that the
transfer was involuntary Watko's was the only firsthand evidence on the
point I credit Watko
Gaskin told Watko, in response to a query by the latter,
that Respondent, nevertheless, held no grudge against
him for filing the charge.
B. Watko Seeks Reemployment
The General Counsel's case rests solely upon Watko's
testimony concerning conversations with Michael
Gaskin, Mervyn Gaskin, Respondent's chairman of the
board, and Robert Swanson, the plant superintendent, in
December 1980. The dates of these conversations, as
well as their content, is in dispute, but there is no dispute
that such conversations took place in Respondent's De-
troit facility or that Watko was refused reemployment
with Respondent.
First, as to the dates: Watko asserts that he went to
Respondent's plant on December 19 seeking employment
(taking his infant child with him because he had no baby-
sitter). As discussed in more detail hereinafter, Watko
states that he met Mervyn Gaskin in the lobby, that
Gaskin said that he should see Swanson about employ-
ment, and that after Gaskin was unsuccessful in locating
Swanson, Watko, with Gaskin's permission, located
Swanson in the plant and talked to him.
Mervyn Gaskin testified that he was not in the plant
on Friday, December 19, having arrived in Detroit at 9
p.m. the night before, after a 26-hour flight from Manila.
He recalls talking to Watko at the plant on December
22, in the afternoon. Swanson also states that he was not
in the plant on November 19, asserting that he was in
Georgia on that date. He says that his conversation with
Watko was on November 18 (which date I note was sug-
gested to him by counsel on direct examination).
Michael Gaskin recalls having a conversation with
Watko on December 22, 1980, the date Watko says he
spoke to Michael Gaskln at the plant. Michael Gaskin
also stated that at that time he knew Watko had been in
the plant "a few days before" because he had seen
Watko's baby at that time. (Watko had left the child
with a member of the clerical force while he sought
Swanson).
So far as I can ascertain, these dates, referred to at
length in Respondent's brief, are not of significance
except as the dispute bears on the credibility of the wit-
nesses. From observation of the witnesses and study of
the record, I am convinced that Watko spoke with
Mervyn Gaskin and Swanson on the same day, Decem-
ber 19, the day he brought his child to the plant. Thus,
inter alia, I credit Michael Gaskin (and Watko) that
Watko spoke with Michael Gaskin on Monday, Decem-
ber 22. But Michael Gaskin also confirms that Watko
had been at the plant "a few days" before that date with
his child. If Mervyn Gaskin is to be credited that he re-
turned from a lengthy trip to the Orient on the evening
of Thursday, December 18, it is more likely that Watko
spoke with Mervyn Gaskin on Friday, December 19, as
Watko testified, rather than Monday, December 22, as
Mervyn Gaskin asserts.2 I discredit Swanson that his
2 Mervyn Gastrin stated that on the occasion he spoke with Watko, the
latter had his child with him It is, of course, possible that Watko again
brought his child with him or. Monday, but there is no other evidence of
this, and I doubt it
TAYLOR & GASKIN, INC.
conversation with Watko occurred on December 18.
Indeed, of all the witnesses in this matter, I have least
confidence in Swanson 's testimony overall.
Discussion of the content of the various conversations
follows.
1. The conversation with Mervyn Gaskin
As has been noted, on this occasion , on December 19,
1980, Watko came to Respondent 's plant with his child,
seeking employment . He met Mervyn Gaskin in the
lobby. According to Watko, Gaskin first asked about the
baby, and then inquired why Watko had come to the
plant. Watko explained that he had heard that Respond-
ent was hiring after ' the first of the year and had come to
see what his chances were for employment . Watko stated
that Gaskin immediately replied, "Well , you sued us."
Watko testified that he then tried to justify his action,
saying that he "had been done wrong, and that Terry
Cauley had laid me off . . . I was done wrong by the
way he laid me off, and the way he had taken me outside
the plant and interrogated me about my union activities."
According to Watko, Gaskin then said that Watko
would have to see Swanson about employment, and that
he would go into the plant to see if he could locate
Swanson for Watko. Gaskin later came back and said he
could not find Swanson, but that Watko could go look
for Swanson if he desired,
Mervyn Gaskin's testimony about this incident was
somewhat less than forthright or consistent . He first
stated that , on this occasion, Watko said he was out of
work and looking for a job, and that Gaskin told Watko
that Watko knew the proper parties to talk to, but that
Gaskin "never named names." Gaskin denied referring to
Watko to Swanson . On cross-examination , however,
Gaskin insisted that Watko did not ask for a job, or say
that "he wanted to be placed with [Respondent]." But,
after examining his pretrial affidavit, Gaskin recalled that
Watko said, during this conversation, that he was look-
ing for a job , "and wondered about getting a job with
us," to which Gaskin replied that Watko should see the
personnel director or the plant superintendent (at the
time Swanson). Finally, Gaskin agreed that Watko
wanted to know if he "could get placed with [Respond-
ent;."
Gaskin further denied that he used the words, "you
sued us," or similar words, or referred to the unfair labor
practice charge which Watko had filed with the Board.
Gaskin also denied that he had gone in search of Swan-
son on this occasion.
To the extent that there is a conflict between the testi-
mony of Mervyn Gaskin and Watko about this incident,
I credit Watko . Respondent argues that it is not "plausi-
ble nor logical" that Gaskin would have told Watko that
"you sued us," and then have gone in search of Swanson
for Watko, or have given Watko permission to look for
him in the plant. (Br. 5.) To the contrary, Gaskin may
have decided that his original statement had been impru-
dent and sought to cover by making Swanson available,
or perhaps Gaskin thought that some gesture was called
for in view of Respondent 's long relationship with
Watko's father.
565
2. The conversation with Swanson
After talking with Mervyn Gaskin , as has been noted,
Watko found Swanson in the plant, where Watko told
him that he had heard through the grapevine that Re-
spondent would be hiring , and that Mervyn Gaskin "had
sent me down to talk to you about employment." At this
point , Swanson suggested that they go into his office. In
the office , according to Watko , "I started the conversa-
tion by telling him that I felt that I was qualified, you
know , to do the work, and that I Felt I had been done
wrong by the company and that I was desperate for a
job. And he then said , well, he said that there would be
too much animosity within the plant if they hired me
back, because of the suit . I then replied . . . that Terry
Cauley is gone . . . . now that he is gone , for whatever
reason , that the company could show good faith and hire
me back. . . . [Swanson] then said , well, he didn't think
that he would have employment for me , [but] that he
would give it some thought ," and the conversation
ended at that point.
Respondent argues that Watko thereafter "changed his
version of the events regarding his discusssion with Mr.
Swanson concerning two important aspects of what tran-
spired." (Br. 7.) First , Respondent states that , on cross-
examination, Watko admitted that "he was the one that
first mentioned the prior charge" in his conversation
with Swanson, on the basis that when Watko was asked
if it were not true that he was "the one who raised your
prior charge," and "stated to [Swanson] that you had
filed a charge?" He responded , "Well, no more than by
saying I had been wronged by the company. So, there-
fore, I guess you could say I was probably referring back
to the charge."
Secondly, Respondent contends that Watko had "a
convenient lapse of memory" on cross-examination about
whether Swanson had informed him that he could not
rehire Watko before Watko "raised the prior charge."
(Br. 8-9 .) Respondent relies, essentially, on the following
testimony:
Q. (by Mr. Moore) Isn't it in fact true, Mr.
Watko, that when you talked with Mr. Swanson he
told you that he would not hire you and that you
then raised the fact that you had gone to the NLRB
once and you weren 't afraid to do it again?
A. That's not true.
Q. Isn 't it true that only after you had indicated
to Mr. Swanson regarding your prior charge that
he said he would give your re-employment any con-
sideration?
A. Well, it was at the end of the discussion, so-
Q. And isn' t it true, prior in the discussion,
before you made any reference regarding the
charge, that he told you he would not hire you?
A. This I do not recall.
I have carefully considered these contentions , and the
record as a whole , and find that Watko 's testimony about
his conversation with Swanson was basically consistent
throughout . Concerning Respondent 's first point above,
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the testimony on cross-examination is clearly consistent
with the direct. With respect to the second point, if it is
assumed that Watko "raised the prior charge" when he
said he had been wronged by the Company, as Respond-
ent argues, Watko's original and subsequent testimony
was that this occurred before Swanson indicated that he
would not rehire Watko. I do not consider that Watko
was rendered incredible because he also said that he did
not recall Swanson saying he would not rehire Watko
before the latter asserted that he had been wronged by
the Company.
Swanson's testimony about the content of this conver-
sation and the sequence of the matters discussed is much
different. The disagreement about dates has been previ-
ously discussed and will not be further considered.
Swanson, as has been noted, recalls Watka coming to
see him about employment in December 1980. Though
he first said that he did not recall whether Watko said
Mervyn Gaskin had sent him, after reference to his pre-
trial statement, he recalled that at the time he thought
that Mervyn Gaskin had sent Watko and so stated to the
agent of the General Counsel who took the statement,
but later he thought "that could not have been." He
seems also to have stated to the agent that Mervyn
Gaskin had spoken with him about Watko's desire for
employment prior to his conversation with Watko.3 At
the hearing, Swanson denied speaking to Mervyn or Mi-
chael Gaskin on December 18, 19, or 22, concerning
Watko's employment.
Swanson's recollection of the conversation was: "Bob
had come in, had told me he was looking for employ-
ment-excuse me-that he felt well qualified for an entry
level position in the place. I had countered with, we
were not happy with his prior performance and really
didn't want to hire him back. And then he brought up
the NLRB suit, saying that he felt he had been totally
vindicated in any matters, and that anything that had
happened was solely because of Mr. Cauley." Swanson
specifically denied that he told Watko that Swanson
would not rehire Watko because it would cause "animos-
ity" in the plant and asserted that it was Watko, not he,
who had first brought up the NLRB charge in this con-
versation. He further asserted that he said he would
"consider" Watko's application further merely as a
means of terminating the discussion.
Concerning Watko's "prior performance," referred to
in Swanson's account of the conversation, Swanson
states this involved Watko's absences from work and al-
leged unsatisfactory conduct (which will be considered
below). There is some question whether Swanson specifi-
cally mentioned both these factors in his conference with
Watko. Upon close consideration of Swanson's testimo-
ny, I am convinced that these matters (and, indeed, the
whole matter of Watko's "prior performance") were not
brought up in this conversation. Thus, when asked, sev-
eral times, directly and specifically, whether both
Watko's attendance and conduct was brought up, Swan-
son always replied in the affirmative. But when asked to
relate what he told Watko, Swanson (as in the account
3 Swanson's testimony was: "At the time I said that Mervyn Gaskin
had talked to me prior to it I think I was confused at the time."
set forth above) referred only generally to his "prior per-
formance." When pressed on the point, on cross- exami-
nation , Swanson tended to be nonresponsive.
On the basis of my evaluation of the witnesses, and the
entire record, I credit Watko about this conversation.
3. The conversation with Michael Gaskin
On the following Monday, after Swanson had indicat-
ed that he would not rehire Watko, Watko came back to
the plant and saw Michael Gaskin in his office. Watko
explained that he had been at the plant on the previous
Friday, which Gaskin said he knew, and Watko said that
Gaskin then knew he was looking for employment. In re-
sponse to Gaskin's query, Watko said that "things didn't
work out" at his last place of employment. Watko states
that Michael Gaskin then said , "Well, we don't have a
policy of hiring people who sue us . And I then tried to
explain that-well-you know, I had as much right to
filing the charge as they did to dispute [it]. And he then
said, `but you sued us.' . . . I said, `Look . . . my dad
would be rolling over in his grave if he found out that I
had filed charges with the company, but . . . he also
would have supported me because of the fact that he
taught me . . . you fight for what's right and when
you're wrong you admit it."' Watko says that Michael
Gaskin responded that "Well, there would just be too
much animosity within the company. And, he says, I
don't think there will be employment for you here, but,
maybe I know somebody who might be doing some
hiring." This terminated the conversation.
On his part, Michael Gaskin recalled Watko coming in
and asking him for a job or, as Gaskin put it, asking him
to "intercede" in Watko's behalf, and that Gaskin said,
"No."4 Gaskin recalled that they did talk about Watko's
being out of work and the reason he had left his previous
job. He stated, with some emphasis, that he does not
recall stating to Watko that Respondent does not have a
policy of hiring people who sue Respondent, nor does he
remember saying, "You sued us," but he does recall "the
suit" being talked about. Gaskin states that he does not
recall who brought it up, "whether it was me-to my
best recollection-Bob brought it up, that he felt he had
been vindicated by the suit, that Terry was no longer
with us, that kind of proved his case." Gaskin says that
the conversation ended on the note stated by Watko, that
Gaskin would try to contact someone else on Watko's
behalf.
Inasmuch as there seems to be no specific conflict be-
tween the two versions of the conversation, I credit
Watko's version set forth above. I credit Michael Gaskin
that he did not talk to Swanson on December 22 con-
cerning Watko's employment.
4 Gaskin asserted that he does not hire shop employees and normally
does not interfere in such matters. In fact, employees are sometimes hired
against his recommendations, as in a previous instance with Watko He
denied that he refused to help Watko because of the NLRB charge, stat-
ing that he had been dissatisfied with Watko previously because of com-
plaints from Cauley and a payroll supervisor
TAYLOR & GASKIN, INC.
4. The alleged reasons for not hiring Watko,
The record indicates (G.C. Exh . 2), and Respondent
does not dispute that there were several jobs in its shop
for which Watko might have been employed after he
sought employment with Respondent.
Superintendent Swanson testified that his reasons for
refusing to rehire Watko were Watko 's asserted poor at-
tendance record during approximately 45 days he was
employed in the shop , and Watko 's prior performance on
the job was reported to Swanson by Watko's foreman,
Robert Kent, which , Swanson said , consisted of "the fact
that there was just a little commotion where [Watko]
was . . . . It seemed like people were always over
where [Watko] was."5 Swanson was not Watko's imme-
diate supervisor and seems to have had little or no direct
contact with him at work.
Concerning Watko 's absence from work, Watko testi-
fied, and I credit, that he was absent 7 days because of
three deaths in his family (including his father ) in a short
time , 3 days because of the "flu," and a maximum of 14
days under the care of Respondent 's doctor and an or-
thopedic surgeon because of a back injury incurred at
work . No other absences are shown . However, Swanson
agreed that absences from work because of deaths in the
family or for illness should not be counted against
Watko.6
When further pressed to explain what he considered
Watko 's prior "poor work performance ," Swanson as-
serted only that "wherever Bob Watko was working, it
seemed like there was always a small congregation of
people talking," which, he said , "would have had an
effect on his productivity ." (Emphasis added .) However,
Swanson's testimony was convincing that , in fact, he did
not know , and had not been informed that Watko's pro-
duction was deficient .7 Significantly , in this respect, as
Watko testified , he was never criticized or reprimanded
for his job performance . Swanson conceded that he
never spoke to Watko about this and was unaware that
Foreman Kent had done so . Kent , who is still employed,
did not testify.
Though President Michael Gaskin assertedly played
no part in the refusal to rehire Watko , except to refuse to
intercede with Swanson on his behalf, Michael Gaskin
Although Swanson originally stated that "the two items that stick
out in my mind" are Watko's attendance record and the fact that other
employees seemed to gather where he was, later, during cross-examina-
tion, he added that another factor in his determination was Watko's "atti-
tude," asserting that Watko "seemed to feel that we owed him a job
without his having to prove himself for it . he seemed to feel that
somewhere the company had done either he [sic] or his family wrong "
8 On cross-examination, Swanson testified that, not counting funeral
leave and sick leave, he could not say how Watko's attendance compared
to other employees, but he was sure it was worse. However, as noted,
there is no evidence, and Swanson does not claim that Watko was absent
for other than illness or deaths in the family. Swanson checked Watko's
attendance records in preparation for testifying They were not produced
at the hearing.
a Thus, in addition to the speculative testimony set forth above, the
following testimony
Q (Mr. Kirksey) Do you know that [Watko's] productivity was
up or down compared to the other employees9
A (Swanson) I can't answer that
Q. You don't know or you can't answer?
A I don't know"
567
testified that he had felt for some time that "[t]here were
a lot of things in [Watko's] personality and [his] way of
working, et cetera, that I just didn't . . . feel were what
I wanted to hire back into the company."
Chairman Mervyn Gaskin did not assert any reason
that Watko should not be rehired.
Analysis and Conclusions
On the record as a whole, I have no doubt, and find
that both Michael and Mervyn Gaskin felt some resent-
ment toward Watko for filing charges against Respond-
ent. It would be normal, and I infer that Swanson was
aware of this feeling. However, I do not believe that
either of the Gaskins actively interfered with Swanson's
decision not to rehire Watko in December. Indeed, I am
convinced, based on Michael Gaskin's testimony, that he
did not refuse to intercede with Swanson on Watko's
behalf because of the prior Board proceeding, and, in
fact, would not have overruled Swanson if the latter had
decided to rehire Watko, even though he would have
been displeased with that action.
It is clear that the decision not to reemploy Watko
was made by Swanson on behalf of Respondent, and,
therefore, it is to his motivation that we must look in de-
termining the merits of this case.
As has been indicated, I was not and am not impressed
with Swanson's asserted reasons for not rehiring Watko.
I am convinced that the reasons advanced are matters
seized upon to justify Respondent's action rather than
the real reason for the refusal to rehire Watko. Thus,
concerning Swanson's two major asserted reasons for not
employing Watko, absenteeism and attracting groups of
employees at work: Swanson admitted, on cross-exami-
nation, that Watko could not be faulted for being absent
from work because of illness and death in his family. But
these were the only reasons that Watko was absent
during the period. There is no claim that Respondent
was harmed thereby. The further claim that other em-
ployees tended to gather where Watko was working
seems similarly insubstantial. Swanson attempted to sup-
port this position by claiming this situation "would have"
affected Watko's production. But no attempt was made
to show that this was actually the case, or that the pro-
duction of any other employee was affected. Significant-
ly, neither Swanson nor Watko's immediate supervisor,
Robert Kent, ever made any complaint to Watko about
these asserted shortcomings. Indeed, Kent, who would
have been in the best position to know about these mat-
ters, was not called to testify.
Likewise, Swanson's claim that he was displeased with
Watko's "attitude" toward Respondent also seems of
little import. Swanson, indeed, seems to have had some
difficulty in remembering it, recalling the point r only
8 Respondent adduced testimony that Michael Gasket had been in-
formed of critical remarks that Watko had made in the plant, principally
to the effect that Respondent was depriving his mother of pension bene-
fits to which Watko thought she was entitled However, Michael Gasket
testified that he "discounted a lot" of this information, as he felt that
Watko was under stress at the time and if he had been in Watko's posi-
tion he might have felt the same way
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when his memory was specifically jogged on cross-exam-
ination.
On the basis of my assessment of Swanson's credibility
and on the record as a whole, I do not credit Swanson's
testimony that he refused to reemploy Watko in Decem-
ber 1980 because of his attendance record, or because of
his performance on the job, or because of Watko' s attti-
tude toward Respondent when he last worked in the
shop. I find that Swanson refused to rehire Watko be-
cause he had filed charges with the Board against Re-
spondent, as Swanson told Watko on the occasion when
he refused to reemploy him.
Respondent argues that, nevertheless, under the
Board's decision in Wright Line, 251 NLRB 1083 (1980),
since Respondent assertedly established "legitimate busi-
ness reasons" for its actions, which it claims were not re-
butted by the General Counsel, it should prevail. How-
ever, it has been found that the asserted "legitimate busi-
ness reasons" for the refusal to rehire Watko were in fact
pretextual. In such case Wright Line clearly does not
apply.
For the reasons stated, and on the entire record, it is
found that Respondent, by refusing to reemploy Watko,
as set forth above, violated Section 8(a)(4) and (1) of the
Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Respondent, by refusing to employ Robert Watko
because he had filed unfair labor practice charges against
Respondent, violated Section 8(a)(4) and (1) of the Act.
3. The unfair labor practices found above affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
It having been found that Respondent has engaged in
unfair labor practices in violation of Section 8(a)(4) and
(1) of the Act, it will be recommended that Respondent
be ordered to cease and desist therefrom and take certain
affirmative actions designed to effectuate the policies of
the Act.
Having found that Respondent discriminated against
Robert Watko in violation of Section 8(a)(4) and (1) of
the Act by refusing to employ him, it will be recom-
mended that Respondent offer him immediate and full
employment in its shop9 without prejudice to his seniori-
ty or other rights and privileges which he would have
had absent the discrimination against him, and make him
whole for any loss of pay and benefits he may have suf-
fered as a result of the discrimination against him by pay-
ment to him of a sum of money equal to that he would
have earned from the date of the discrimination to the
9 Watko applied for employment on December 19, 1980. He should be
offered employment in the first job which became available after that
date for which he was qualified or, if that job no longer eexists, to a sub-
stantially equivalent job. The date of discrimination against Watko is the
date such job first became available after December 19, 1980.
date he is offered employment as provided herein, less
his net earnings during such period, in accordance with
the formula provided in F. W. Woolworth Co., 90 NLRB
289 (1950), together with interest to be computed in the
manner set forth in Florida Steel Corp., 231 NLRB 651
(1977). See generally Isis Plumbing Co., 138 NLRB 716.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed10
ORDER
The Respondent, Taylor & Gaskin, Inc., Detroit,
Michigan, its officers , agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to hire, or reemploy, or otherwise dis-
criminating against employees because they file charges
with, or otherwise aid and assist the National Labor Re-
lations Board in the performance of its functions.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Robert Watko immediate and full employ-
ment in Respondent's shop to a position for which he is
qualified, without prejudice to his seniority and other
rights and privileges, and make him whole for any loss
of earnings or benefits he may have suffered by reason of
the discrimination against him, in accordance with the
provisions set forth in the remedy section.
(b) Preserve and, on 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 all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(c) Post at its plant in Detroit, Michigan, copies of the
attached notice marked "Appendix.""' Copies of the
notice, on forms provided by the Regional Director for
Region 7, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
io If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings , conclusions , and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
i i If 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 Nation-
al 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 "