Consolidated Edison Co. of New York, Inc.

National Labor Relations Board - Board Decisions

Dec 8, 1961

134 N.L.R.B. 1137 (N.L.R.B. 1961)

CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. 1137
V. THE REMEDY
Having found that the Respondents engaged in unfair labor practices, the Trial
Examiner will recommend that they cease and desist therefrom and take certain
affirmative action in order to effectuate the policies of the Act.
It will be recommended that the Respondent Company offer John Tomarelli im-
mediate and full reinstatement of his former or substantially equivalent position,
without prejudice to seniority or other rights and privileges; and that the Respondent
Union notify the Respondent Company in writing, and furnish a copy to Tomarelli,
that it has withdrawn its objections to the employment of Tomarelli by the Respond-
ent Company and requests the Respondent Company to reinstate him.
Since it has been found that the Respondent Union and Respondent Company are
both responsible for the discrimination suffered by Tomarelli, it will be recom-
mended that they jointly and severally make him whole for the loss of pay he may
have suffered by reason of the discrimination against him, by payment to Tomarelli
of a sum of money equal to that which he normally would have earned as wages
from October 30, 1959, to the date of the Respondent Company's offer of reinstate-
ment, less his net earnings during said period. Provided, however, that the Respond-
ent Union's liability shall be tolled 5 days after it serves written notice on the
Respondent Company of its withdrawal of objections to Tomarelli's employment
and its request for his reinstatement. The backpay provided for herein shall be
computed in accordance with the formula stated in F. W. Woolworth Company, 90
NLRB 289. The Company will also be directed to make available to the Board,
upon request, payroll and other appropriate records in its possession to facilitate
determination of the amount due.
On .the basis of the foregoing findings, and upon the entire record in the case, I
make the following:
CONCLUSIONS OF LAW
1. The Respondent Company is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Respondent Union is a labor organization within the meaning of Section
2(5) of the Act.
3. By discriminating in regard to the hire and tenure of employment of John
Tomarelli, thereby encouraging membership in Respondent Union, Acme Fast
Freight, Inc., has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (3) and (1) of the Act.
4. By causing the Company to discriminate against Tomarelli in violation of
Section 8(a)(3) of the Act, the Union has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(b) (2) and (I) (A) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Consolidated Edison Company of New York , Inc. and Transport
Workers Union of America, AFL-CIO, Local 100 , Petitioner
and Brotherhood of Consolidated Edison Employees , Utility
Workers Union of America, CIO, Intervenor
Consolidated Edison System Companies and Brotherhood of
Consolidated Edison Employees, Utility Workers Union of
America, CIO. Cases Nos. 2-RC-10121 and 2-R-5938. Decem-
ber 8, 1961
SUPPLEMENTAL DECISION AND ORDER
DENYING MOTIONS
On September 25, 1961, Consolidated Edison Company of New
York, herein called the Employer, filed with the Board a motion
134 NLRB No. 106.
630849-62-vol 134-73
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which seeks (a) reconsideration of the Board's Decision, Order and
Direction of Election of August 30, 1961,1 and/or (b) reopening of
the hearing for the purpose of taking evidence of new facts alleged
to be substantial and material, and (c) deferment of the election. On
September 29, the Intervenor, Utility Workers, filed a petition for
reconsideration or, alternatively, for an order reopening the record
for leave to adduce additional evidence. Attached to the motion of
the Employer in affidavit form, are statements of officials and other
company representatives setting forth: (a) the manner and extent to
which Consolidated has "integrated" the operations of the three
Transit Authority plants herein called TA, into its preexisting oper-
ations since January 1960 (the date the hearing closed in the repre-
sentation case) ; (b) the reduction of the complement presently em-
ployed in the TA plants (611) as compared with the complement
employed in January 1960 (1,216) ; and (c) the change in the "iden-
tity" of the employees now working in the TA plants, as compared
with the January 1960 complement, which change resulted in part
from voluntary quits by former TA employees and in part from ex-
tensive transfers of TA plant employees to other Consolidated plants
and vice versa. As to the latter, it is alleged that 209 of the present
611 employees have transferred from other plants (represented by the
Intervenor) ; and that 249 of the original 1,216 employees have now
transferred to such other plants. Consolidated and the Intervenor
urge that these facts show a destruction in the "separate identity" of
the employees comprising the unit found appropriate on the basis of
the record made in January 1960.
On October 17, 1961, the Petitioner filed an answer requesting the
summary denial of the motions in all respects.
For purposes of considering the aforementioned motions, the Board
has assumed that the statements of facts set forth in the appended
affidavits are true. These additional "facts" show, in effect, that there
have been personnel changes in the TA plants since the hearing, and
that these changes have occurred either because of permanent trans-
fers or as a result of replacing employees who voluntarily quit.
While the changes are not minimal, the preferred facts nevertheless
do not destroy the identifiability of a unit of the three TA plants.'
Nor do they otherwise affect the Board's prior determination that
such separate unit may be appropriate. Examination of the remain-
ing aspects of the motions discloses nothing which the Board has not
previously considered.
It is clear, therefore, that no useful purpose would be served by
reopening the record to receive evidence of the mentioned "new" facts,
1 132 NLRB 1518.
a Cf. Stanolcnd Oil and Gas Company, 116 NLRB 1208, 1212 , General Shoe Corporation,
117 NLRB 1704, 1707; Temco Aircraft Corporation , 121 NLRB 1085, 1087, 1088.
LOCAL 1357 , RETAIL CLERKS INT'L ASSOCIATION 1139
and thereby delaying the election heretofore directed. The Board
finds no merit in and, accordingly, shall deny the motions.
[The Board denied the motions filed by the Consolidated Edison
Company of New York, Inc., and by the Brotherhood of Consolidated
Edison Employees, Utility Workers Union of America, CIO.] 3
3 The requests of the Employer and the Intervenor to argue their motions orally are
hereby denied as the briefs and affidavits filed in connection therewith fully set forth the
contentions of the parties.
Local 1357, Retail Clerks International Association , AFL-CIO
and Best Markets, Inc. and Amalgamated Food Employees
Union Local 196 of the Joint Council of Philadelphia and
Vicinity and the Amalgamated Meat Cutters and Butcher
Workers of North America, AFL-CIO. Cases Nos.4-CP-30-1
and 4-CP-30-2. December 11, 1961
DECISION AND ORDER
On September 26, 1961, Trial Examiner Thomas F. Maher issued
his Intermediate Report herein, finding that the Respondent engaged
in certain unfair labor practices and recommending that it cease and
desist therefrom and take affirmative action, as set forth in the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report together with a supporting
brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Leedom, Fanning, -and Brown].
The Board has reviewed the Trial Examiner's rulings and finds no
prejudicial error. The rulings are affirmed. The Board has consid-
ered the Intermediate Report, the exceptions and brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner as modified herein.
We agree with the Trial Examiner that Respondent's picketing of
former Best Markets stores violated Section 8(b) (7) (C) of the Act.
Before their acquisition by Food Fair in August 1960, the employees
of the Best Markets stores had been represented since 1937 by a labor
organization other than Respondent. Upon their acquisition by Food
Fair, nine of the stores, including the picketed stores, continued to
operate without any change in signs or interior and exterior design to
indicate Food Fair control and no significant interchange between
these stores and other Food Fair stores took place. Under all the cir-
cumstances, we find, as did the Trial Examiner, that the employees
of these Best Markets stores were not accretions to the existing unit
134 NLRB No. 111.