Harding Glass Co, Inc.

National Labor Relations Board - Board Decisions

Aug 29, 2006

347 N.L.R.B. 1112 (N.L.R.B. 2006)

HARDING GLASS CO.
347 NLRB No. 102
1112
Harding Glass Company, Inc. and Glaziers Local
1044, International Brotherhood of Painters &
Allied Trades, AFL–CIO. Cases 1–CA–31148
and 1–CA–31158
August 29, 2006
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On June 29, 2005, Administrative Law Judge Joel P.
Biblowitz issued the attached supplemental decision.
The Respondent filed exceptions and a supporting brief,
and the General Counsel filed a brief in support of the
decision of the administrative law judge and a motion to
correct inadvertent typographical error in the Decision of
the administrative law judge.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the supplemental decision
and the record in light of the exceptions and briefs and
has decided to affirm the judge’s rulings, findings, and
conclusions and to adopt the recommended Order as
modified.1
This is a compliance case. Among other things, the
judge found, and we agree, that discriminatee James Tri-
tone’s backpay should be calculated based on a glazier’s
rate of $22.05 per hour for his work from March 28,
1994 to April 15, 1994. Our dissenting colleague dis-
agrees.
The facts are undisputed. Tritone began working for
the Respondent as a glazier in 1988. In April, 1993, he
suffered a severe wrist injury and was out of work for
approximately 8 weeks. When Tritone returned to work,
he continued to perform the tasks of a glazier despite
being under medical care for his injury. The Respon-
dent’s employees commenced an economic strike on
October 18, 1993. The strike ended a week later. On
January 31, 1994,2 the Respondent wrote to Tritone and
offered him employment to a “modified duty (light
work)” position. Tritone rejected this position through
his workers’ compensation counsel. On March 15, the
Respondent sent Tritone a second offer for a “permanent
light duty full time position.” Tritone accepted this offer.
On March 21, the Respondent clarified this second offer
as a “temporary modified duty position” available for 45
days at which time the Respondent would evaluate Tri-

1 We grant the General Counsel’s motion to correct inadvertent ty-
pographical error in the decision of the administrative law judge. The
Respondent owes the Apprenticeship Fund the amount of $4,422.81,
plus interest. We correct the administrative law judge’s Order accord-
ingly.
2 All dates hereafter are in 1994.
tone’s ability “to perform [his] regular duties as a gla-
zier.” When Tritone returned to work on March 28, he
saw a posted notice describing the Respondent’s work-
ers’ compensation program. The notice indicated that
“[m]odified duty is temporary (no longer than 45
days). It is a process that provides full wages for an
injured employee during recovery.” Tritone’s last day
of employment for the Respondent was April 15, the
date that he voluntarily quit.
Since Tritone was performing glazier work at glazier
pay at the time of the strike, he was entitled to rein-
statement as a glazier and to glazier pay upon his re-
turn. Tritone worked from March 28 to April 15, but
he was not paid the glazier rate.
In contending that Tritone was only entitled to a
nonglazier rate of pay, our dissenting colleague notes
the judge’s finding that Tritone returned to work that
was “substantially different from the work that he had
previously performed.” Our colleague states that “Tri-
tone did not, and could not, perform the work of a gla-
zier.” In this regard, he further notes that the Respon-
dent’s March 21 clarification stated that, after 45 days
in a “temporary modified duty position,” the Respon-
dent would evaluate Tritone as to his abilities “to per-
form [his] regular duties as a glazier.”
We agree that Tritone’s work during the 2-week pe-
riod was not the same as that performed prior to the
strike. However, the issue is whether the work during
that 2-week period was glazier work. Glazier work
can encompass many duties. The fact that his work,
upon return from the strike, was different from the
work before the strike does not mean that his work
upon return was not glazier work. In our view, it was
glazier work, and thus Tritone was entitled to glazier
pay. In this regard, the judge found that Tritone per-
formed the glazier work of “measuring store fronts and
doors for possible future glass replacement.” Tritone
testified that he not only performed these duties during
the applicable period but that he had also performed
them in the past as part of his regular glazier duties.
Tritone also testified that, in addition to this specific
glazier work, he picked up cars and brought them back
to the shop to have the auto glass employees work on
them. Tritone testified that he did this work during the
applicable period and that he and other glaziers per-
formed this work in the past. In these circumstances,
we conclude that he performed glazier work.
Also, the Respondent had no agreement with the
Union to permit it to pay less than the full contractual
rate when an employee is on light duty. Joseph Guili-
ano, the Union’s business manager, testified that the
Union never had an agreement with the Respondent
HARDING GLASS CO. 1113
whereby the Respondent “could pay the glaziers less than
full contract rate while they were on any kind of light
duty.” Given that Tritone performed glazier work (albeit
in a modified duty position) during the applicable period
and that the Board’s order required restoration of the
status quo ante, it follows that the Respondent was obli-
gated to pay Tritone at the glazier “full contract rate” of
$22.05 per hour.
Finally, we note that article XIV of the parties’ con-
tract provided that “all employers of Glaziers Local 1044
must have Workers Compensation Insurance . . . to cover
all members employed by them.” The Respondent’s
notice described its workers’ compensation program with
the assurance that the program “provide[d]full wages for
an injured employee during recovery” while that em-
ployee was filling a “temporary modified duty position”
for 45 days. The Respondent’s workers’ compensation
program was a term and condition of employment. It set
forth the Respondent’s policy regarding employees on
modified duty.3 Under that policy, Tritone was entitled to
be paid at “full wages” based on the contractual glazier
rate of $22.05 per hour. Our dissenting colleague’s con-
clusion that the Respondent’s “failure . . . to adhere to its
workers compensation obligations . . . is an issue for an-
other forum” is misplaced. We are not passing on the
issue of how this policy of the Respondent would affect a
determination made by a State workers’ compensation
agency. Rather, we are saying that, in this NLRB forum,
we must decide what the Respondent should have paid
Tritone. The Respondent’s workers’ compensation pro-
gram was a term and condition of employment and, as
such, provides additional support for a finding that Tri-
tone was entitled to be paid the glazier rate of pay.
In sum, the General Counsel provided substantial evi-
dence supporting that, but for the Respondent’s unfair
labor practices, employee Tritone would have been paid
at a glazier’s rate of pay. The Respondent failed to dem-
onstrate that the compliance specification was in error.
Accordingly, we adopt the judge’s finding that James
Tritone was entitled to the contractual glazier rate of
$22.05 per hour for the period from March 28 to April
15, 1994.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the Administrative Law Judge as
modified below and orders that the Respondent, Harding
Glass Co., Worcester, Massachusetts, its officers, agents,

3 The Respondent’s March 21 letter to Tritone–with its reference to
reinstating Tritone to a “temporary modified duty position” for 45
days—was fully consistent with and suggested that the Respondent was
applying the “full wages” provision of its workers’ compensation pro-
gram to Tritone.
successors, and assigns, shall make payments to the
individuals and funds listed below, with interest.
The backpay to employees is as follows:
Robert Mosely $9,497.48 plus interest
James Tritone $975.89 plus interest
Richard Poirer $70,345.89 plus interest
James Gabrielle $18,846.38 plus interest
Richard VonMerta $11,273.69 plus interest
David Elworthy $6,979.14 plus interest
Mark Zaltberg 0
Christoper Carle $4,057.24 plus interest
Christoper Pelletier $16,191.19 plus interest
Kenneth Bullock $5,908.05 plus interest
The payments due to the union funds are as follows:
Health and Welfare Fund $181,994.31 plus interest
Pension Fund $87,735.79 plus interest
Annuity Fund $85,914.46 plus interest
Apprenticeship Fund $4,422.81 plus interest
MEMBER SCHAUMBER, dissenting in part.
I agree with my colleagues in all respects save one.
I would reverse the judge’s finding that discriminatee
Tritone’s backpay should be calculated at the glazier’s
rate of $22.05 per hour.
Tritone began working for the Respondent as a gla-
zier in 1988. In that capacity, he fabricated frames and
doors, measured and cut glass, and installed windows
and doors in storefronts. In April 1993, he suffered a
severe wrist injury and was unable to work for ap-
proximately 8 weeks. From the date of his return
through October 18, when the strike commenced, Tri-
tone continued to perform his regular glazier duties,
albeit under continuing medical care for his injury.
On January 31, 1994, the Respondent wrote to Tri-
tone and offered him reemployment to a modified duty
(light work) job that would entail, among other duties,
measuring storefronts, repairing house windows, pol-
ishing small pieces of glass, and installing door clo-
sures. The Respondent’s letter indicated that Tritone
would be paid at the “current glazier’s pay rate which
is $13.73 per hour.”1 Tritone, through his workers’
compensation counsel, rejected that job offer as incon-
sistent with the medical restrictions imposed by his
doctor. Thereafter, on March 15, the Respondent sent
Tritone a second offer, this one for a “permanent light
duty full-time position consisting of calling on pro-
spective customers, measuring work at jobsites, pick-
ing up and delivering customers’ automobiles.” The
stated wage rate for the position was $13.73 per hour.

1 One of the unlawful unilateral changes made by the Respondent
on October 23, 1993 was a reduction of the glazier’s rate from
$22.05 per hour to $13.73.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1114
Tritone accepted the second offer. On March 21, before
Tritone returned to work, the Respondent sent him a let-
ter clarifying that its offer was for a “temporary modified
duty position.” The letter listed the job duties set out in
the March 15 letter, but added “general office proce-
dures,” and also stated that the position was available for
45 days “at which time we will evaluate your ability to
perform your regular duties as a glazier.”
When Tritone returned to work, he saw a posted notice
describing the Respondent’s workers’ compensation pro-
gram. The notice indicated that “[m]odified duty is tem-
porary (no longer than 45 days). It is a process that pro-
vides full wages for an injured employee during recov-
ery. . . .” The notice also stated that an injured employee
who was unable to perform his duties would be trans-
ferred to another position—if one was available and he
was qualified for it—and would “retain full seniority
rights and wages.”
The judge found that the work Tritone performed be-
tween March 28 and April 15 was “substantially different
from the work” that he had performed as a glazier, but
nonetheless determined that Tritone’s backpay for that
period should be calculated at the glazier’s rate of $22.05
per hour. None of the reasons stated by the judge for
reaching that conclusion is persuasive.
First, the judge noted that in the underlying unfair la-
bor practice case, the Board found that the Respondent
had violated the Act by unilaterally changing the gla-
ziers’ and glassworkers’ wage rates. The judge then de-
termined that when these employees returned to work
after their strike, they had to be paid their wage rate be-
fore the unilateral change, namely $22.05 per hour. Had
Tritone returned to a glazier’s position, the judge would
have been correct. However, as the judge himself found,
Tritone—because of his physical limitations—could not
perform the duties of a glazier and returned to work that
was “substantially different from the work that he had
previously performed.” Because Tritone did not, and
could not, perform the work of a glazier, the judge had
no basis for awarding Tritone backpay at the glazier’s
rate.2

2 The judge also appeared to find it significant that the Respondent’s
January 31 offer of employment—which Tritone flatly rejected through
his counsel—referred to the offered pay rate of $13.73 per hour as the
“current glazier’s pay rate.” He noted that rate had been unlawfully set
and should have been $22.05 per hour. The Respondent did have an
obligation to offer the glazier rate of $22.05 per hour—but only if it
were offering glazier work. In its January 31 letter, it was not offering
such work to Tritone and accordingly its reference to the “current gla-
zier’s pay rate” in that letter is of no legal significance. Moreover,
Tritone rejected the position offered on January 31, and the subsequent
offer letter for a different position, which Tritone accepted, made no
reference to a glazier’s rate.
Second, the judge noted that the Respondent’s
March 21 letter said that the position was available for
45 days “at which time we will evaluate your ability to
perform your regular duties as a glazier.” The judge
did not indicate, however, what significance he drew
from that statement. Fairly read, the letter simply
states that after 45 days the Respondent would evaluate
whether Tritone could perform glazier duties. The
statement has no impact on whether Tritone should
have received the $22.05 per hour glazier rate during
the March 28–April 15 period when he was performing
“substantially different” duties.
The judge’s final basis for finding that Tritone was
due $22.05 per hour was a brief reference to the modi-
fied-duty policy notice that Tritone saw when he re-
turned to work. That notice recited several “goals” of
the Respondent’s workers’ compensation program, one
of which was to return employees to full duty in the
work force as soon as possible. To help achieve those
goals, the notice states that the Respondent had insti-
tuted a modified duty policy, which “is a process that
provides full wages for an injured employee during
recovery . . .” Presumably, the judge believed that
entitled Tritone to the glazier’s rate of $22.05 per hour.
However, whatever difference there may be between
the language of the notice and what Tritone was paid is
a matter for the State agency governing workers’ com-
pensation claims, and not the Board. If there was a
failure by the Respondent to adhere to its workers’
compensation obligations, that is an issue for another
forum. The facts here clearly show that Tritone was
not recalled to a glazier position and, thus, the Re-
spondent was not obligated, under the specific terms of
the Board’s Order in the underlying unfair labor prac-
tice proceeding, to pay Tritone at the glazier’s rate.
Therefore, I would reverse the judge’s determination
that Tritone should have been paid at the glazier’s rate
of $22.05 per hour from March 28 to April 15.
Karen Hickey, Esq. and Sandra Clodomir, Esq., for the Gen-
eral Counsel.
Robert Weihrauch, Esq. for the Respondent.
Michael Feinberg, Esq. (Feinberg, Campbell & Zack, P.C.),
for Charging Party.
SUPPLEMENTAL DECISION
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me on May 2, 2005 in Boston, Massachusetts.
The third amended compliance specification, which issued
on January 19, 2005, alleges that Harding Glass Company,
Inc. (the Respondent) owes the amount of $504,142.32 plus
interest accrued to the date of payment. This amount is due
as wages to Robert Mosely, James Tritone, Richard Poirer,
James Gabrielle, Richard VonMerta, David Elworthy, Chris-
HARDING GLASS CO. 1115
topher Carle, Christopher Pelletier, and Kenneth Bullock as
well as to the following funds of Glaziers Local 1044, Interna-
tional Brotherhood of Painters & Allied Trades, AFL–CIO (the
Union): the Health and Welfare Fund, the Pension Fund, the
Annuity Fund and the Apprenticeship Fund.
I. BACKGROUND
On March 31, 1995, the Board issued the underlying Deci-
sion and Order herein at 316 NLRB 985, finding that the Re-
spondent violated Section 8(a)(5) of the Act by unlawfully
implementing, as its last and final offer, certain unilateral
changes in its employees’ terms of employment, effective on
October 23, 1993, and that this change was made in the absence
of a valid impasse in bargaining. On March 17, 1996, the
United States Court of Appeals for the First Circuit enforced
this portion of the Board’s Order, and directed the Respondent
to restore all terms and conditions of employment to the status
quo as it existed on October 23, 1993, and to make whole all
employees, and the Union funds, with interest, for any loss they
may have suffered as a result of Respondent’s unlawful unilat-
eral changes. The Court, however, declined to adopt the
Board’s additional finding that the economic strike which be-
gan on October 18, 1993 was converted to an unfair labor prac-
tice strike on October 25, 1993, and therefore denied enforce-
ment of that portion of the Board’s Order.
Counsel for the Respondent, in his answer to the amended
compliance specification which issued on January 20, 2000,
included numerous defenses which counsel for the General
Counsel felt were improper because they contravened the
Board and the Court’s findings. Counsel for the General Coun-
sel notified counsel for the Respondent that his answer failed to
meet the requirements of Section 102.56 of the Board’s Rules
and Regulations and that General Counsel would file a Motion
for Partial Summary Judgment if the Respondent did not file an
appropriate amended answer. On May 19, 2000, Counsel for
the General Counsel filed with the Board a motion to strike
portions of the Respondent’s first amended answer to the origi-
nal amended compliance specification and for partial summary
judgment. On August 1, 2002, the Board issued a Supplemental
Decision and Order (at 337 NLRB 1116), finding that the Re-
spondent’s Answer did not comply with the requirements of
Section 102.56(b) and (c) of the Board’s Rules and Regulations
and that all of the Respondent’s affirmative defenses were with-
out merit. The Board therefore ordered that the Respondent’s
affirmative defenses be stricken, and granted the General Coun-
sel’s Motion for Partial Summary Judgment with respect to
paragraphs 1 through 10 and 12 through 21 of the amended
compliance specification, relating to the backpay period and the
backpay calculations for all the employees. Pursuant to this
decision, the only issues that Respondent could litigate were the
amount of interim earnings and expenses of each of the em-
ployees and the status of James Tritone.
II. THE FACTS AND ANALYSIS
A. Interim Earnings
Regardless of the large amount of backpay and money due to
the named employees and the Union funds herein, the hearing
was extremely limited because of the Board’s Supplemental
Decision on counsel for the General Counsel’s motion to
strike. Even the issue of interim earnings, which normally
would produce extensive testimony regarding the adequacy
of the search for replacement employment and the wages
therein is not a factor here because of the nature of the viola-
tion, and the fact that the interim employment was with the
Respondent. As no evidence was introduced to contradict the
interim earnings set forth in the Third Amended Compliance
Specification, I find that the amounts set forth therein are
correct.
B. The Strike
The economic strike began on October 18, 1993. At the
time, the Respondent employed five unit employees, two
glaziers, Tritone and Charles Jones, and three glass workers,
including Mosely. Tritone and Mosely are the only employ-
ees employed by the Respondent at that time who are named.
All of the glass workers returned to work after being on
strike for 1 week. Jones never returned to Respondent’s em-
ploy and obtained employment as a glazier elsewhere. As
will be discussed, infa, Tritone returned from workmens’
compensation status to work for the Respondent on March
28, 1994 and worked until April 15, 1994, when he returned
to workmens’ compensation status and filed for, and re-
ceived, social security disability benefits. Of the other eight
employees named in the compliance specification, five are
glass workers and three are glaziers. The Union has separate
contracts with the Respondent and other employers for glass
workers and glaziers. Glass workers often perform inside
fabrication work and residential and automobile glass re-
placement work, while glaziers measure, fabricate and install
glass windows for storefronts and commercial customers.
The hourly rate set forth for glaziers in the Glaziers’ 1991–
1993 contract was $22.05; the hourly rate for glass workers
in the 1991–1993 Glass Workers’ contract was $13.23.
The compliance specifications provide that backpay of the
named replacement employees commenced on June 5, 1996,
because the Union notified the Respondent on June 4, 1996,
that the strike was terminated at that time. The basis of this
finding is the June 4, 1996 letter that Union Business Man-
ager sent to Robert Weihrauch, Esq., counsel for the Re-
spondent. The letter states, inter alia:
It is Local 1044’s position that by January 1, 1994 its strike
against Harding Glass was concluded. By that date, all
striking employees (i.e. the glaziers) who were able to work
had found other jobs and were not seeking reinstatement
with Harding Glass. In addition, by that date Local 1044
had ceased its picketing at Harding Glass.
As no substantive evidence was introduced to contradict
the assertions contained in this letter, I agree with counsel for
the General Counsel’s position that the Union’s economic
strike commenced on October 18, 1993, and concluded on
June 4, 1996, and that the backpay period for the replace-
ment workers began on the following day.
C. The Status of James Tritone
The only issue remaining for consideration, pursuant to
the Board’s Supplemental Decision and Order, is Tritone’s
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1116
status. The issue is whether he should have been paid as a gla-
zier, his job classification prior to the strike, or as a glass
worker for the period that he worked from March 28 to April
15, 1994. The difference is the contractual rate contained in the
1991–1993 contract, for glaziers, $22.05 an hour, or for glass
workers, $13.23 an hour. For the 3-week period that Tritone
worked for the Respondent in 1994 he was paid $13.73 an hour,
without any union benefits. Tritone began working for the Re-
spondent as a glazier in 1988. As a glazier, he fabricated frames
and doors, measured and cut glass and installed windows and
doors in store fronts. In April 1993 he severed his wrist, cut a
tendon and shred the nerves in his wrist. From that time
through October 18, 1993, he was performing his regular gla-
zier duties, although he was under medical care for his injury.
The picketing of the Respondent’s facility commenced on Oc-
tober 18, 1993, the same day that he had surgery on his wrist.
He joined the strike and picketing on that day and did not return
to work until March 28, 1994.
On January 31, 1994, Mark Goldstein, Respondent’s owner,
wrote to Tritone that Tritone’s doctor indicated that he could
return to work on a modified light duty program. The letter
continued:
We are offering you a modified duty (light work) job measur-
ing storefronts, repairing house windows, polishing small
pieces of glass, installing door closures, to name a few.
We are offering you 100% of our current glaziers pay rate
which is $13.73 per hour with Blue Cross HMO as health
coverage paid by Harding Glass Co. Our desire is that, under
strict medical supervision, you return to work with job restric-
tions, immediately.
Please indicate below whether you accept or reject the offer of
modified-duty employment as described herein. If we do not
hear from you by February 11, 1994, we will assume you
have rejected our offer and will proceed accordingly.
Tritone testified that he believes that his lawyer wrote to
Goldstein saying that the job offered did not comport with the
restriction imposed by his doctor. In response, Goldstein wrote
to Tritone on March 15, 1994 stating:
We are pleased to offer you a permanent light duty full time
position consisting of calling on prospective customers,
measuring work at job sites, picking up and delivering cus-
tomers’ automobiles. Your wage will be $13.73 per hour plus
an employer paid Blue Cross/Blue Shield HMO.
We must hear from you on or before March 24, 1994, other-
wise, we will assume you have rejected our offer.
Tritone testified that he believes that his attorney notified the
Respondent that he would accept that job offer, and by letter
dated March 21, 1994, Goldstein again wrote to Tritone, stat-
ing:
We would like to clarify the position that is available to you
beginning March 28, 1994.This is a temporary modified duty
position consisting of calling on prospective customers,
measuring work at jobsites, picking up and delivering cus-
tomer’s automobiles, and general office procedures.
This position is available for forty five days at which time
we will evaluate your ability to perform your regular duties
as a glazier.
We look forward to seeing you on March 28, 1994.
On his first day of work upon returning, March 28, 1994,
he saw a notice posted at the time clock. He had never seen it
during the period of his prior employment with the Respon-
dent. Entitled: “Modified-Duty Policy,” it states, inter alia:
Harding Glass Co., Inc. workers’ compensation program
has several distinct goals.
1. To provide employees with prompt, high quality care for
their work-related injuries;
2. To compensate workers during the time they are dis-
abled and unable to work; and
3. To return injured employees to full duty in the work
force as soon as possible.
To help us achieve these goals, we have instituted a modi-
fied-duty policy. Modified duty is temporary (no longer
than 45 days). It is a process that provides full wages for an
injured employee during recovery. . .
Management Rights
Job transfer: Any employee who, as a result of an accident
on or off the job, or chronic disease or condition, is unable
to perform his/her duties, shall be transferred to another po-
sition if work is available for which he/she is qualified or
can be retrained within a reasonable period of time. He/she
shall retain full seniority rights and wages.
The work that Tritone performed from March 28 through
April 15, 1994, was substantially different from the work that
he had previously performed for the Respondent. During this
earlier period, the principal work that he performed was fab-
ricating and installing store front glass windows and doors.
So that, if a glass door or window at a store or other com-
mercial facility was broken, or had to be replaced for any
other reason, he measured the area, cut the replacement glass
and, probably with another employee, installed the new glass
door or window. For the period March 28 to April 15, 1994,
he measured store fronts and, occasionally, picked up a car
and drove it back to Respondent’s shop where the glass
workers performed the required repairs. The only “tools” that
he carried were a tape measure, a ruler, paper and a pencil;
he no longer carried, or used, a glass cutter. Goldstein testi-
fied that his workmens’ compensation insurance company
told him to put Tritone back to work on light temporary job
duty. He had Tritone measure doors and windows of his
existing customers, so that, if one of the customers subse-
quently called in to report a broken window or door, they
would know the size involved and could replace it without
further measurement. This work was performed in anticipa-
tion of possible future work from his existing customers.
An examination of Tritone’s work classification, back-
ground and the work that he performed during this 3-week
period presents a difficult issue of whether he should be paid
HARDING GLASS CO. 1117
at the glaziers’ hourly rate of $22.05 or the glass workers’ rate
of $13.23. He was a glazier and had been paid at that rate dur-
ing the 5 years of his employment with the Respondent. How-
ever, it is also clear that the work that he performed from
March 28 through April 15, 1994, was less than classic glazier
work. The only glazier-type work that he performed during this
period was measuring storefronts and doors for possible future
glass replacement. However, I do not believe that it is neces-
sary to examine his work during this period to determine the
wage rate that he should have been paid. The Board’s Decision
and Order found that the Respondent violated the Act by uni-
laterally changing the wage rates of its glaziers and glass work-
ers. Therefore, when these employees returned to work they
had to be paid the wage rate prior to the unilateral change. Tri-
tone was a glazier whose hourly wage rate was $22.05 prior to
the change, and that is the rate he had to be paid upon returning.
In addition, Respondent’s documents herein support counsel for
the General Counsel’s allegations on this issue. Goldstein’s
January 31, 1994 letter to Tritone offering him reinstatement,
states that it would be at “. . . 100% of our current glazier’s
pay rate which is $13.73 per hour. . .” However, that hourly
rate was found to have been unlawfully instituted by the
Respondent, and should have been $22.05. In addition, Gold-
stein’s reinstatement offer of March 21, 1994 states: “This
position is available for forty five days at which time we will
evaluate your ability to perform your regular duties as a gla-
zier.” And finally, the notice that Tritone found at the Re-
spondent’s facility when he returned to work on March 28,
1994, in describing the Respondent’s workmens’ compensa-
tion program, stated that it provided “full wages” and “full
seniority rights and wages” for the injured employee. I there-
fore find that Tritone should have been paid at the glaziers’
hourly wage rate of $22.05 for the period March 28, 1994
through April 15, 1994.
[Recommended Order omitted from publications.]