American Ambulette Corp.

National Labor Relations Board - Board Decisions

Nov 17, 1993

312 N.L.R.B. 1166 (N.L.R.B. 1993)

1166
312 NLRB No. 192
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 We find merit in the General Counsel’s exception and shall mod-
ify the judge’s recommended Order to add a requirement that the
Respondent expunge from its records any reference to the unlawful
discharge of David Nameny. We shall also modify the judge’s rec-
ommended Order to conform his reinstatement language to that tra-
ditionally used by the Board.
1 This case was being processed by the New York State Depart-
ment of Labor at the time the charge was filed in this proceeding.
Since the remedy in the State of New York proceeding was the same
as the Board’s remedy should the charging party be successful,
issuance of the instant complaint was suspended, pending determina-
tion by the state proceeding. Ultimately, the state department in-
American Ambulette Corp. and David Nameny.
Case 2–CA–23108
November 17, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On August 18, 1993, Administrative Law Judge
Howard Edelman issued the attached decision. The
General Counsel filed an exception, a supporting brief,
and a brief in support of the administrative law judge’s
decision.
The National Labor Relations Board has considered
the decision and the record in light of the exception
and briefs and has decided to affirm the judge’s rul-
ings, findings, and conclusions and to adopt the rec-
ommended Order as modified.1
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Amer-
ican Ambulette Corp., Yonkers, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Substitute the following for paragraph 2(a).
‘‘(a) Offer David Nameny immediate and full rein-
statement to his former job or, if that job no longer ex-
ists, to a substantially equivalent position, without prej-
udice to his seniority or any other rights and privileges
previously enjoyed.’’
2. Insert the following as paragraph 2(c) and reletter
the subsequent paragraphs accordingly.
‘‘(c) Remove from its files any reference to the un-
lawful discharge and notify the employee in writing
that this has been done and that the discharge will not
be used against him in any way.’’
3. Substitute the attached notice for that of the ad-
ministrative 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 or-
dered us to post and abide by this notice.
WE WILL NOT assign our employees onerous work-
ing conditions because of their or their relatives’ par-
ticipation in NLRB proceedings.
WE WILL NOT discharge our employees because of
their or their relatives’ participation in NLRB proceed-
ings.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer David Nameny full and immediate
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges
previously enjoyed.
WE WILL make him whole for any loss of earnings
and other benefits he may have suffered by reason of
the discrimination against him.
WE WILL notify David Nameny that we have re-
moved from our files any reference to his discharge
and that the discharge will not be used against him in
any way.
AMERICAN AMBULETTE CORP.
Margit Reiner, Esq., for the General Counsel.
Daniel J. Roberts, Esq. (Roberts & Roberts), for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
HOWARD EDELMAN, Administrative Law Judge. This case
was tried before me on April 20 and 21, 1993, in New York,
New York.
On October 14, 1988, David Nameny, an individual, filed
a charge against American Ambulette Corp. (Respondent),
alleging that Respondent discharged him in violation of Sec-
tion 8(a)(1) and (4) of the Act. On October 5, 1992, a com-
plaint issued alleging that Respondent had discriminatorily
assigned David Nameny onerous working conditions and
thereafter discharged him because his wife, Patricia Nameny,
had testified in a prior Board proceeding.1
1167AMERICAN AMBULETTE CORP.
formed Region 2 that they were dropping the case because of their
huge backlog. No decision had been made on the merits. In view
of the State Department of Labor’s action, the instant complaint
issued on October 5, 1992.
2 The complaint alleges that Sassano and Thomas Nasce, director
of safety and personnel, are supervisors within the meaning of the
Act. Respondent denies this allegation. The supervisory status of
Sassano and Nasce is discussed below.
3 These findings of fact are based upon the credible testimony of
Respondent driver Ernest Gonzalez. I was impressed with Gonzalez’
demeanor. He spoke very knowledgeably, and in detail about both
vehicles’ operation. Further, although employed by Respondent, he
impressed me as an essentially neutral witness who testified with an
air of detachment as to the details of Respondent’s operation.
4 This is established by the credible testimony of Gonzalez. Al-
though Gonzalez was hired after David Nameny was discharged, I
find that Respondent’s operation was essentially the same both at the
time David Nameny was fired and thereafter. Such interchange of
drivers would appear to be necessary for Respondent’s efficient op-
eration. Thus I find Gonzalez’ testimony to be logical. Moreover,
such testimony was corroborated by the testimony of Michael Mi-
nerva.
Briefs were filed by counsel for the General Counsel and
by counsel for Respondent. Upon a consideration of the en-
tire record, the briefs and the demeanor of the witnesses, I
make the following
FINDINGS OF FACT
Respondent is a New York corporation with an office and
place of business in Yonkers, New York, where it is engaged
in the business of providing ambulette services to individ-
uals. Respondent annually, in the course of its business de-
rives gross revenues in excess of $500,000 and purchases
and receives at its Yonkers facility goods and products val-
ued in excess of $5000 from points directly outside the State
of New York. Respondent admits, and I find that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
David Nameny became employed by Respondent as a
driver sometime in 1985. A year and a half or so later he
was transferred to the title of paratransit supervisor. This
transfer did not result in any pay raise. In view of David
Nameny’s title at the time of his discharge it was alleged in
the complaint that he was a supervisor as defined in Section
2(11) of the Act, and that he was discharged in violation of
Section 8(a)(1) of the Act. Respondent by its answer denied
David Nameny’s supervisory status, and General Counsel’s
complaint was amended at the trial to allege that his assign-
ment of onerous duties and subsequent were in violation of
Section 8(a)(1) and (3) in the event that the record estab-
lishes that he was not a supervisor within the meaning of the
Act. The evidence establishes that his duties during the pe-
riod of time he was classified as a supervisor consisted es-
sentially of driving Respondent’s vehicles and picking up
handicapped people at their home and driving them to where
they were going and dropping them off, and training new
drivers. There is no evidence that he exercised any of the su-
pervisory functions set forth in Section 2(11) of the Act. Ac-
cordingly, I conclude that David Nameny was an employee
as defined in Section 2(3) of the Act at the time of his dis-
charge.
Patricia Nameny was employed by Respondent in 1986
and worked in the dispatchers office performing various cler-
ical functions. She had constant contact with the Minerva’s,
Dan and Lenore Minerva and their son Michael, who owned
Respondent corporation. Sometime during the fall of 1987,
Local 531 International Brotherhood of Teamsters Chauf-
feurs, Warehousemen and Helpers of America (the Union)
began an organizing campaign among Respondents drivers.
On October 21, the Union called a strike and many of the
drivers went out on strike. The strike ended on or about Oc-
tober 27, 1987. Thereafter Respondent discharged several
strikers and on November 25, the Union filed unfair labor
practices. Subsequently the Union filed additional charges. A
complaint issued alleging various 8(a)(1) violations and the
discriminatory discharges of three employees in violation of
Section 8(a)(3). On May 12, 1988, David Nameny injured
his back in a job-related injury and went out on workmen’s
compensation. On June 1, 1988, Patricia was terminated. Her
termination was not alleged as a discriminatory discharge.
On September 26, 1988, the above-stated complaint (Cases
2–CA–22505 and 2–CA–22746) was tried. Patricia Nameny
testified as a witness for the General Counsel. Her testimony
against Respondent was devastating. Patricia Nameny testi-
fied that the Minerva’s stated among other things that they
would close their shop before they would recognize the
Union and that they would wait until their employees goofed
up on the job and would fire those employees who supported
the Union and went out on strike. Respondent entered into
a settlement agreement on September 27, 1988. On October
26, the same day Patricia Nameny testified, David Nameny
notified Respondent that he was ready to return to work. On
September 27, David Nameny reported for work. He handed
General Manager Raymond Sassano a doctor’s note which
stated that he was able to return to his job and resume his
normal duties.2
Respondent employs drivers who are classified as para-
transit and ambulette drivers. The essential difference be-
tween the two classifications is that a paratransit driver picks
up the individual using the service at the curbside, while an
ambulette driver goes into the individual’s home or apart-
ment and takes the individual using Respondent’s service
from their home or apartment to the curb. In performing this
operation, the Ambulette driver is often required, where there
is no elevator to wheel the passenger down one or more
flights of stairs. This aspect of the job requires considerable
physical effort by the driver. From the curb, individuals
using both types of service are then transported into the the
respective vehicles by means of a ramp. Although the ramps
of paratransit vans are mechanically different from those of
the ambulettes, the effort in setting up the ramps and in mov-
ing the passenger into the vehicle is essentially the same.3
Moreover, while some drivers may usually operate one type
of vehicle or another the drivers are interchangeable and are
assigned to drive one vehicle or another as required by the
needs of Respondent on a particular day.4 Although there is
no difference in skills required to perform one job over the
other, it is clear, and I conclude that the work performed by
an ambulette driver is generally much more physically de-
manding.
On September 27, the morning after Patricia Nameny had
testified in the NLRB trial, described above, David Nameny
reported for work. He had a doctor’s note which indicated
that he could resume his usual duties. The note contained no
1168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 As set forth and described below, I conclude contrary to Re-
spondent’s contention that Ray Sassano and Thomas Nasce are su-
pervisors within the meaning of Sec. 2(11) of the Act.
6 Although Sassano was employed by Respondent at the time of
this trial, he was not called as a witness by Respondent.
7 Although Nasce was employed by Respondent at the time of this
trial he was not called as a witness by Respondent.
8 To the extent Vice President Michael Minerva’s testimony sug-
gests that Sassano and Nasce’s supervisory authority was eliminated,
I discredit such testimony. I found Minerva to be a generally evasive
witness who gave contradictory evidence on the central issue to this
restrictions or limitations as to his ability to perform any job
functions. He presented this note to Ray Sassano, a super-
visor within the meaning of Section 2(11) of the Act.5 A
doctor’s note was a precondition for David Nameny’s return
to work. After presenting Sassano with the doctor’s note
Sassano told him he could return to work and promptly as-
signed him to take out the school bus and pick up and trans-
port a list of patients requiring Respondent’s service. The
school bus was used for ambulette service, rather then para-
transit service. David Nameny told Sassano that he would try
to handle the route, but that he was concerned about any ex-
cessive bending or lifting that might be required because of
his back. Sassano told him to take out the bus and David
Nameny did so. While Nameny was performing his third
pickup, he testified that as he was pulling a patient up the
bus ramp he pulled out his back and felt pain. There was no
evidence submitted, and no reason to believe that Nameny
did not reinjure his back as he testified. Nameny immediately
called Sassano and informed him that he had reinjured his
back, and Sassano told him to take an early lunchbreak and
call him after lunch and he would give him further assign-
ments.
Following his lunchbreak Nameny called Sassano and told
him his back was no better. Sassano then assigned him to
a six-flight walkup job. This assignment required Nameny to
pick up a patient in a wheel chair, walk him down the bus
ramp to the curb and then walk him in the wheel chair up
six flights of stairs. I conclude this was an exceptionally
strenuous job and that Sassano was aware of it. Sassano told
Nameny that since the doctor’s note permitted him to return
without restrictions, he had to perform the job as ordered.
Nameny told Sassano that in view of his reinjured back he
was unable to perform the job. Sassano told Nameny that he
should do as ordered or bring in the bus and go home. Rath-
er then risking any further serious reinjury, Nameny returned
the bus to Respondent’s facility without making the assigned
pickup.6 He was then told by Sassano to go home and not
to return until he called Nasce.
On September 28, David Nameny visited his doctor to
have his back examined. He asked his wife, Patricia, to call
Respondent and tell them that he would be unable to work
that day and that he was seeing his doctor. Patricia Nameny
called Respondent and spoke to Supervisor Nasce and told
him that David had reinjured his back on September 27 and
was being examined by his doctor and would not be in to
work this day. Nasce told Patricia that he would get back to
David.7
On September 29, without attempting to contact David
Nameny, Respondent sent him a letter which states:
On September 27, 1988 you were told by Ray Sassano
to come into work and see me on September 28, 1988.
You never showed up for work, and therefore because
of your actions on September 27, 1988, you are no
longer entitled to anything from American Ambulette.
This letter was signed by Nasce with his title set forth below
his signature as ‘‘Safety & Personnel Manager.’’
Counsel for Respondent admits that as of September 20,
1988, both Sassano and Nasce were supervisors within the
meaning of the Act. Sassano was employed as Respondent’
general manager, and Nasce employed as safety and person-
nel manager. In this connection Michael Minerva, Respond-
ent’s vice president testified that as of September 27, 1988,
Sassano had the authority to issue warnings, authorize over-
time, grant an employee time off, and make the daily assign-
ments. Nasce, had even more authority since Sassano, when
he told David Nameny to go home on September 27, told
him not return to work until he first called Nasce to clear
such return. Moreover, it was Nasce’s letter dated September
28, that effectively discharged David Nameny.
Counsel for Respondent contends that by a letter to the
Regional Director dated September 22, 1988, he informed
the Regional Director that Nasce and Sassano were no longer
supervisors within the meaning of the Act. In fact this letter
utterly fails to support Respondent’s contention. The letter
was a request for postponement in Case 2–CA–22505. The
case then scheduled for September 26 in which Patricia
Nameny gave testimony. The letter does not describe any
change in the supervisory capacity of either Nasce or
Sassano, but merely points out as a reason for the postpone-
ment that in view of the recent death of Respondent’s presi-
dent, Daniel Minerva, there was a ‘‘shake up’’ among Re-
spondent’s personnel.
The evidence also establishes that subsequent to Septem-
ber 20 and at all times up to the discharge of David Nameny
on September 28, 1988, Nasce and Sassano retained their su-
pervisory duties. As set forth above it was Sassano who as-
signed Nameny his ambulette route on September 26, and or-
dered him to make the six-flight walkup job which Nameny
was unable to perform. Sassano also ordered Nameny to re-
turn to Respondent’s facility when Nameny informed him of
his inability to do so and later ordered him not to report to
work until he cleared it with Nasce. Thus Sassano had the
authority as of September 26 to assign work, and effect dis-
cipline by ordering Nameny home. This evidence also estab-
lishes that Nasce had the authority to determine whether an
employee could continue working, and the discharge letter
signed by Nasce on September 28, over his supervisory title
establishes that Nasce had the authority to discharge employ-
ees.
The evidence also established that both prior to and subse-
quent to September 20, both Sassano and Nasce were sala-
ried employees and that their duties remained unchanged
after September 20. In addition they were not required to
punch a clock. Rank-and-file employees were hourly paid
employees who were required to punch a clock. Additionally,
Barry Dawkins, a driver employed by Respondent, credibly
testified that following September 20, he observed no change
in the duties of Sassano or Nasce. Moreover, simple logic
strongly suggests that with the death of Daniel Minerva, the
responsibilities of Respondent’s supervisory staff would in-
crease, rather then diminish.8 The Board has held that the
1169AMERICAN AMBULETTE CORP.
case; whether David Nameny quit or was discharged as set forth and
discussed below.
possession of any one of the powers enumerated in Section
2(11) of the Act is sufficient to establish supervisory author-
ity within the meaning of the Act. Cypress Lawn Cemetery
Assn., 300 NLRB 609, 617 (1990); Superior Bakery, 294
NLRB 256, 262 (1989), enfd. 893 F.2d 493 (2d Cir. 1990).
Accordingly, I conclude that at all times material herein,
including September 28, 1988, both Sassano and Nasce were
supervisors within the meaning of the Act.
In determining whether an employer discriminates against
an employee for his union activities, the General Counsel has
the burden of proving that the employees’ union activities
were a motivating factor in the discrimination alleged. Once
such factor is established, the burden shifts to Respondent to
establish that such action would have taken place in the ab-
sence of such union activity. NLRB v. Transportation Man-
agement Corp., 462 U.S 393 (1983); Wright Line, 251
NLRB 1080 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982). Discrimination by an employer
against an employee for utilizing the Board’s processes con-
stitutes a violation of Section 8(a)(1) and (4) and the same
legal principles necessary to establish discrimination for
union activities apply. Great Western Produce, 293 NLRB
362 (1989); Pepsi Cola Bottling Co., 301 NLRB 1008
(1991), enfd. 953 F.2d 638 (4th Cir. 1992).
In the instant case, the complaint alleges that Respondent
discriminated against David Nameny because of his wife,
Patricia’s testimony against Respondent in Case 2–CA–
22505. In enforcing Advertiser’s Mfg. Co., 280 NLRB 1185
(1986), enfd. 823 F.2d 1086 (7th Cir. 1987), the circuit court
noted that retaliation against an individual by retaliating
against a family member is an ancient method of revenge.
The evidence in the instant case establishes that Respond-
ent was aware of Patricia Nameny’s testimony in Case 2–
CA–22505 since their corporate officers’ the Minerva’s were
present during the trial when Patricia testified. That her testi-
mony was devastating is undeniable. Patricia Nameny in sub-
stance testified as to Respondent’s intense union animus, its
animus against the alleged discriminatees, and its intention to
retaliate against them for such union activity by waiting for
an opportunity to discharge them. Further, and most signifi-
cantly, Patricia Nameny credibly testified in the instant trial,
without contradiction by Leonore Minerva, who was present
throughout this entire trial, that during a strike in connection
with the allegations of Case 2–CA–22505, Leonore Minerva,
the present president of Respondent, stated to her that she
couldn’t believe that Patricia’s son-in-law was supporting the
union by striking with other employees, and then asked Patri-
cia which side she was on. This testimony establishes an in-
clination by Respondent to discriminate against one family
member for the protected activities of another family mem-
ber.
The evidence that Respondent assigned David Nameny on-
erous work in retaliation for his wife’s prior testimony de-
scribed above, is overwhelming. Given my conclusion that
the work of paratransit drivers and ambulette is essentially
the same, and that David Nameny’s doctor’s note did not in-
dicate any physical limitations, I do not conclude that
Sassano’s initial assignment of the school bus ambulette was
discriminatorily motivated. However, once the assignment
was made David Nameny put Sassano on notice that the job
might prove to strenuous for his back. Without any doubt,
when Respondent became aware that David Nameny had re-
injured his back, the assignment of a six-floor walkup job
was sadistic and retaliatory. Given Respondent’s animus, its
inclination to discriminate against one family member to re-
taliate for the protected activities of another family member,
and the timing of the assignment, the day after Patricia
Nameny’s testimony, I conclude that the General Counsel es-
tablished a discriminatory motivation for the assignment.
The evidence that Respondent discharged David Nameny
in retaliation for Patricia Nameny’s testimony during the
September 26 trial is even more overwhelming. When David
Nameny was physically unable to perform the six-floor walk
up job assigned to him, Sassano told him to return to Re-
spondent’s facility, which he did, and not return to work
until he cleared it with Nasce. The day following Nameny’s
reinjury, September 28, although Patricia Nameny had called
Nasce to inform him that David would be unable to work
that day, and was in fact visiting his doctor concerning his
injured back, Nasce sent out the above-described discharge
letter. To issue a discharge letter to David Nameny after re-
ceiving a telephone call from his wife that he was injured
and visiting his doctor following the discriminatory assign-
ment of the onerous work which caused his reinjury, given
the animus, the inclination to retaliate, and the timing de-
scribed above is simply overwhelming evidence of a dis-
criminatory motivation as to both the assignment of the six-
floor walk up job and the discharge.
In view of the above, I conclude that the General Counsel
has met its Wright Line burden. Respondent must now estab-
lish that the same action would have been taken in the ab-
sence of protected activity. Respondent’s counsel contends
that the assignment of the six-flight walkup was not
discriminatorily motivated because when David Nameny no-
tified Sassano that he had reinjured his back, Sassano gave
him a lunchbreak. I find such contention ludicrous and un-
worthy of further comment.
Respondent’s contention as to the allegation of a discrimi-
natory discharge is that David Nameny was not discharged,
but rather quit. This contention is directly contradicted by the
reluctant testimony of Michael Minerva, who when ques-
tioned by me as to what the portion of the above September
28, letter signed by Nasce at Minerva’s direction which stat-
ed ‘‘because of your actions on September 27, 1988 you are
no longer entitled to anything from American Ambulette,’’
meant, he evasively reiterated what the letter stated. Only
when pressed did Minerva reluctantly admit that the letter
was a termination letter. Such evasive testimony eliciting an
admission contrary to Respondent’s contention that Nameny
quit, not only destroys Minerva’s credibility, but establishes
that Nameny was indeed fired and that Respondent has given
totally inconsistent and shifting reasons for Nameny’s termi-
nation. The Board has consistently held that shifting reasons
or defenses for an employee’s termination of an employee
establish a pretextual reason and under such circumstances
an employer fails to meet its Wright Line burden. C.J.R.
Transfer, 300 NLRB 1095, 1098, 1099 (1990); Jennie-O
Foods, 301 NLRB 305, 320, 321 (1991).
Thus, I conclude that not only has Respondent failed to es-
tablish its Wright Line burden, but Respondent’s shifting
contentions concerning Nameny’s discharge further establish
1170 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
10 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
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.’’
the true discriminatory motivation for Nameny’s discharge.
Accordingly, I conclude that David Nameny was discharged
by Respondent in retaliation for Patricia Nameny’s testimony
before the Board, in violation of Section 8(a)(1) and (4) of
the Act.
CONCLUSIONS OF LAW
1. Respondent is, and has been at all times relevant herein,
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. Respondent imposed onerous working conditions upon
David Nameny because his wife, Patricia Nameny, testified
in a Board proceeding in Case 2–CA–22505, in violation of
Section 8(a)(1) and (4) of the Act.
3. Respondent discharged David Nameny because his wife
testified in the Board proceeding described above, in viola-
tion of Section 8(a)(1) and (4) of the Act.
THE REMEDY
Since I have found that Respondent discriminatorily dis-
charged David Nameny, I shall recommend Respondent
make him whole together with interest as set forth below,
from the date of his termination until his reinstatement or
valid offer of reinstatement.
Backpay for David Nameny shall be computed in accord-
ance with the formula approved in F. W. Woolworth Co., 90
NLRB 289 (1950). Interest on and after January 9, 1990,
shall be computed at the ‘‘short-term Federal rate’’ for the
underpayment of taxes as set out in the 1986 amendment to
26 U.S.C. § 6621 in accordance with New Horizons for the
Retarded, 283 NLRB 1173 (1987). Interest on amounts ac-
crued prior to January 1, 1987 (the effective date of the 1986
amendment to 26 U.S.C. § 6621), shall be computed as set
forth in Florida Steel Corp., 231 NLRB 651 (1977).
I shall also recommend that Respondent expunge from its
records any reference to the discharge of David Nameny and
to provide written notice of such expunction to him, and in-
form him that Respondent’s unlawful conduct will not be
used as a basis for further personnel action concerning him.
Sterling Sugars, Inc., 261 NLRB 472 (1982).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended9
ORDER
The Respondent, American Ambulette Corp., Yonkers,
New York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Assigning onerous working conditions to its employees
because of their or their relatives’ participation in proceed-
ings before the National Labor Relations Board.
(b) Discharging its employees because of their or their rel-
atives’ participation in proceedings before the National Labor
Relations Board.
(c) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of their right
to self-organization, to form, join, or assist labor organiza-
tions, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for
the purpose of collective-bargaining or other mutual aid or
protection, or to refrain from any or all such activities.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer to David Nameny full and immediate reinstate-
ment to his former or substantially equivalent position of em-
ployment, without prejudice to his seniority or other rights
and privileges previously enjoyed.
(b) Make David Nameny whole for any loss of earnings
he may have suffered by reason of the discrimination against
him in the manner set forth in the remedy section of this de-
cision.
(c) Preserve and, on request, make available to the Board
or its agent, for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary or useful to ana-
lyze the amount of backpay due under the terms of this
Order.
(d) Post at its place of business in Staten Island, New
York, copies of the attached notice marked ‘‘Appendix.’’10
Copies of the notice, on forms provided by the Regional Di-
rector for Region 2, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondent has taken
to comply.