Rochester Refrigerating Corp.

National Labor Relations Board - Board Decisions

Mar 27, 1972

195 N.L.R.B. 1040 (N.L.R.B. 1972)

1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rochester Refrigerating Corporation and Interna-
tional Union of Operating Engineers, Local 71-71A,
AFL-CIO. Case 3-CA-4572
March 27, 1972
DECISION AND ORDER
BY MEMBERS JENKIIS, KENNEDY, AND PENELLO
On January 31, 172, Trial Examiner Paul Bisgyer
issued the attached ecision in this proceeding. There-
after, the Respondent filed exceptions to the Trial Ex-
aminer's Decision/,t
Pursuant to the provisions of Section 3(b) of the
National Labor 1elations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and has
decided to affirm the Trial Examiner's rulings,
findings,' and conclusions and to adopt his recom-
mended Order.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that the Re-
spondent, Rochester Refrigerating Corporation,
Rochester, New York, its officers, agents, successors,
and assigns, shall take the actions set forth in the Trial
Examiner's recommended Order.
The Respondent also filed a motion to reopen the record, and the
General Counsel filed a memorandum in opposition thereto The Respond-
ent has moved the Board to reopen the record to permit it to introduce
allegedly newly discovered evidence regarding the claimed temporary na-
ture of the job for which Donald L Gaddy was hired The General Counsel
argues that the evidence which Respondent seeks to present was available
at the time of the hearing, is hearsay, and is wholly irrelevant to the issues
decided and in no way contradicts the Trial Examiner's findings We agree
with the General Counsel's position and deny the motion for the reasons
stated.
The Respondent has excepted to certain credibility findings made by
the Trial Examiner. It is the Board's established policy not to overrule a Trial
Examiner's resolutions with respect to credibility unless the clear prepon-
derance of all of the relevant evidence convinces us that the resolutions were
incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d
362 (C A 3) We have carefully examined the record and find no basis for
reversing his findings.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PAUL BISGYER, Trial Examiner: This proceeding, with all
the parties represented, was heard on November 10, 1971, in
Rochester, New York, on the complaint of the General Coun-
sel issued on October 5, 1971,1 and the answer of Rochester
The complaint is based on a charge filed by International Union of
Operating Engineers, Local 71-7 IA, AFL-CIO, on August 25,197 1, a copy
of which was duly served on the Respondent by registered mail on the same
day
Refrigerating Corporation, herein called the Respondent or
Company. In issue are questions whether the Respondent
discriminatorily discharged Donald L. Gaddy in violation of
Section 8(a)(1) and (3) of the National Labor Relations Act,
as amended,' and engaged in other acts of interference, re-
straint, and coercion in violation of Section 8(a)(1) of the Act.
At the close of the hearing, the parties argued their positions
orally. Although afforded the opportunity, only the Respond-
ent subsequently filed a brief.
Upon the entire record, and from my observation of the
demeanor of the witnesses, and with due consideration being
given to the arguments advanced by the parties, I make the
following:
FINDINGS AND CONCLUSIONS
I THE BUSINESS OF THE RESPONDENT
The Respondent, a New York corporation, is engaged in
the business of providing cold storage warehousing service at
its warehouse in Rochester, New York, where its principal
office and place of business is also located. In the course and
conduct of its operations, the Respondent during the past
year furnished such services valued in excess of $50,000 to
various business enterprises, including Star Supermarkets,
Inc. The latter companies annually purchase goods valued at
more than $50,000 which are shipped to their New York
State locations directly from outside the State.
It is admitted, and I find, that the Respondent is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
As stipulated, I find that International Union of Operating
Engineers, Local 71-71A, AFL-CIO, herein called the
Union, is a labor organization within the meaning of Section
2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
1. Gaddy's employment
The Respondent conducts its warehouse operations in a
3-story, 60-year-old building in Rochester. For some 5 years
before the events herein, the Respondent permitted the floor-
ing in the hallways and cooler rooms where frozen foods are
stored and the cooler room doors to fall into a serious state
of disrepair. Previously, and until their employment with the
Respondent ended, such repairs were made by two of its
regular warehousemen on their own time at night and on
weekends. To remedy the neglected conditions that devel-
oped after the departure of these warehousemen, the Re-
spondent utilized for about a 3-month period on an intermit-
tent basis the services of two individuals who were regularly
employed by Eastman Kodak Company. However, since
these individuals were unable to devote sufficient time in such
repair work the Respondent sought to make other arrange-
2 Sec 8(a)(1) of the Act makes it an unfair labor practice for an employer
"to interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed in section 7 " Insofar as pertinent, Section 7 provides that "em-
ployees shall have the right to self-organization, to form, join, or assist labor
organizations, 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 .11
Sec 8(a)(3) of the Act, with certain qualifications not material herein,
prohibits an employer, "by discrimination in regard to hire or tenure of
employment or any term or condition of employment to encourage or
discourage membership in any labor organization. . " '
195 NLRB No. 201
ROCHESTER REFRIGERATING CORP. 1041
ments. Therefore, upon learning that General Dynamics
Company was closing down its plant in Rochester, the Re-
spondent requested the General Dynamics' plant engineer to
refer one of its carpenters scheduled to be laid off for employ-
ment with the Respondent. Accordingly, on February 10 or
11, 1971,1 Donald L. Gaddy appeared at the warehouse and
was interviewed by Plant Manager Paul Duncan who took
him on a tour of the building, showing him the floors in the
hallways and the cooler rooms, the cooler doors which were
not latching properly, and other things that required repair.
Emphasizing that the job involved working in cold areas,
Duncan asked Gaddy whether he was interested in taking it
and received an affirmative answer. Gaddy was then hired.
According to Duncan, whose testimony I credit in this re-
spect, nothing was said about the duration of the job or
whether it was permanent or temporary.' He also testified
that he intended to hire Gaddy for an indefinite period of time
to perform the carpentry work previously shown to him on
the interview tour and not for general plant maintenance
work and that he 'did not know how long it would take to
complete the job-perhaps 5 or 6 months. However, it is
undisputed that during his-period of employment Gaddy, like
other full-time employees, received such benefits as Blue
Cross and Blue Shield insurance coverage, several paid holi-
days, and 2 weeks' jury duty. Although these benefits were
not available to temporary employees, Duncan testified that
they were given to Gaddy because his job had a measure of
continuity and regularity and he, worked alongside other em-
ployees who were enjoying those benefits.
On February 24, Gaddy began working in the warehouse,
prihcipally repairing floors and cooler doors and doing
related carpentry jobs.' If he needed materials and supplies,
he asked Duncan to order them. Gaddy's employment con-
tinued until August 6 when he was terminated under circum-
stances discussed below. It is the Respondent's position that
Gaddy was terminated on that date because he had then
completed the specified tasks he was hired to perform.
2. The March episode
Since 1944, the Respondent has maintained collective-bar-
gaining relations with Teamsters Local 118 as the exclusive
representative of the Company's warehouse employees and
with the Union as the exclusive representative of the com-
pany's stationary engineers . The contracts of both organiza-
tions in effect at the time of the events herein contained
union-shop provisions. There is evidence that the Respondent
and its officials have had no difficulties with these or other
unions; nor have they ever been charged with unfair labor
practices except those involved in this case.
In March,' about 30 days after Gaddy began working for
the Respondent, Warehouse Superintendent Jeff Berger,' the
son of the Respondent's Treasurer Isadore Berger and the
1 All dates refer to 1971.
Although Gaddy testified on direct examination that Duncan told him
during the interview that the job was permanent, he retracted this testimony
under cross-examination and admitted that the duration of employment was
never mentioned.
It appears that during his period of employment Gaddy also repaired
pallets; spent a total of about 10 hours unloading freight cars on different
occasions; and performed some minor masonry and gutter repair work for
several hours.
This is the month indicated in Gaddy's testimony. Although Duncan
thought the incident occurred in May, the precise date is not significant in
resolving the critical issues herein.
Jeff Berger was apparently a supervisor, although he also did some
physical work in the warehouse. He was not a member of the Teamsters and
at the time of the hearing was no longer in Respondent's employ. He was
not produced as a witness.
nephew of President Milton Berger, handed Gaddy two
Teamsters cards' to fill out. After Gaddy completed one card
and started to fill out the other, Plant Manager Duncan ap-
proached, seized the cards and tore them up. According to
Gaddy, Duncan told him that the Bergers didn't want him
to join any union as he was there to do maintenance and
carpentry work. Duncan testified, in effect, that he told
Gaddy that the cards were not intended for him, that he was
not a member of the Teamsters, and that he was not obligated
to join that organization as he was doing carpentry work not
covered by the Teamsters contract. Duncan's account ap-
pears to be plausible and I therefore credit it. However, con-
sidering the Respondent's opposition to Gaddy's union inter-
est displayed in the July 28 incident discussed below, I have
little doubt that Duncan also advised Gaddy that he courted
the Respondent's displeasure if he joined any union.
According to Gaddy's undisputed and credited testimony,
later in the day Duncan again engaged Gaddy in conversation
on the second floor as Gaddy was preparing to resume work.
Duncan asked him why he wanted to become a member of
the Teamsters since he was already enjoying all company
benefits. In reply, Gaddy stated that he wanted union repre-
sentation for job security and to have someone speak and
bargain for him. Duncan then repeated that the Bergers did
not want him in the union adding that, as he was receiving
all the benefits, there was no reason why he should want to
be in a union. Under cross-examination, Gaddy also testified
that, as a result of Duncan's earlier destruction of the Team-
sters cards and his remarks, he became apprehensive about
his job security because without union protection the Com-
pany could, and probably would, arbitrarily terminate him.
Gaddy further denied that his union interest stemmed from
his knowledge that his job was a temporary one.
It is clear that Gaddy did not challenge Duncan's right to
confiscate the Teamsters cards he was filling out or to keep
him from joining the Teamsters, as described above. How-
ever, Gaddy credibly testified without contradiction, the day
after the occurrence he asked the Teamsters steward why he
could not become a member of his union. The next day, after
checking into the matter, the steward reported to Gaddy that
the reason was that he did not belong to the bargaining unit.
3. Gaddy joins the Union on July 28; the Respondent's
reaction
On July 27, Bernard Winterman, the business manager of
the Union which represents the Respondent's stationary engi-
neers, met Gaddy at the warehouse and asked about the
nature of his job and whether he was interested in joining and
being represented by the Union. After some discussion,
Gaddy stated that he was. The next morning, July 28, Win-
terman returned to the plant and handed Gaddy a union
application and authorization card, which he signed. There-
upon, Winterman conferred with the Respondent's President
Milton Berger and Treasurer Isadore Berger in the former's
office; advised them that Gaddy had signed an application
card and that the Union represented him for bargaining pur-
poses; and requested that Gaddy be included in the parties'
current contract. Manifestly irked by Gaddy's selection of the
Union to represent him, Milton Berger questioned the reason
for his joining, noting that "his work was almost done." This
led to an angry verbal exchange between Milton Berger and
Winterman in which Berger accused Winterman of harassing
Although Gaddy indicated that they were membership cards, Duncan
convincingly testified that one card was to change the beneficiary and the
other was a new pink checkoff card, which the Teamsters Union had given
to the Respondent for distribution among its members who were to com-
plete and return them.
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Company; declared that he would not countenance Cad-
dy's union membership; and directed Isadore Berger to dis-
charge Gaddy immediately. In response, Winterman warned
the Bergers of the consequences of such conduct and threat-
ened either to strike the Company or put a picket line around
the premises if they terminated Gaddy. Winterman then left
the Bergers and proceeded to his car, followed by Isadore
Berger who tried to calm him down, remarking that Milton
Berger and Winterman were too excited. When Isadore
Berger stated that they were terminating Gaddy because they
had no further need for his services, Winterman again cau-
tioned against this action and that the Union would not toler-
ate Gaddy's discharge for union activity.'
In the meantime, approximately 15 to 20 minutes after
Gaddy had signed the union card for Winterman, Plant
Manager Duncan, pursuant to instructions from Milton or
Isadore Berger, informed Gaddy that he was no longer
needed and directed him to pack up his tools and leave the
premises. Gaddy retorted that he knew the discharge was
coming because he had no job security. However, it is undeni-
ably clear that Gaddy had never been given advance notice
that he would be terminated or laid off at that or any other
specified time. Before leaving, Duncan remarked that he
could not understand Gaddy's "way of thinking." Gaddy
then collected his tools and belongings and took the elevator
to the street level. While getting off, he was stopped by Dun-
can, who handed him some company tools and told him to
return to work. Duncan then accompanied Gaddy back to his
work area where he repeated that he could not understand
Gaddy's "way of thinking." When Gaddy stated that he did
not know what Duncan meant, Duncan explained that
Gaddy already enjoyed all the company benefits. Gaddy was
unimpressed, noting that he did not have any job security and
that the Company could fire him any time it wanted. This
ended their conversation. At the hearing, Isadore Berger tes-
tified that he told Duncan to keep Gaddy on because he did
not believe that "we should have gotten rid of him just then
because the work wasn't completed just yet."
Later in the afternoon of July 28, following his meeting
with the Bergers, discussed above, Winterman sent Isadore
Berger formal notification that Gaddy had designated the
Union as his bargaining agent. The letter further stated:
It is our understanding that Mr. Gaddy has been in your
employee [sic] since February 1971 and has been en-
gaged in the work of plant maintenance, which is cov-
ered under the jurisdiction of this Local Union.
We hereby offer to meet and confer with you for the
purpose of negotiating an accretion to our existing col-
lective bargaining agreement to include an appropriate
classification for plant maintenance at agreed upon
wages , hours, and other conditions of employment.
We look forward to hearing from you in regard to this
matter upon receipt of this communication.
Not hearing from the Respondent within the next few days,
Winterman telephoned Isadore Berger who informed him
that the letter was referred to his attorneys. There is no
evidence whether Winterman pursued the matter further
with the Respondent's attorneys.
On July 29 or 30, probably after the Respondent received
the Union's above letter, Duncan inquired of Gaddy why he
wanted to join the Union. Gaddy answered that the reason
was to have someone bargain for a wage raise and related
matters. In reply to Duncan's question how he happened to
select the Operating Engineers Union in particular, Gaddy
' The findings regarding this episode between Winterman and the Bergers
are derived from portions of the testimony of Winterman and Isadore Berger
which I believe reflect what probably occurred at that time.
indicated that it was suggested by his supervisor at his former
job.10
4. Gaddy's discharge
On August 6, while Gaddy was repairing a floor on the
second floor, Duncan asked him to anchor some metal plating
which he had previously laid down on the first floor. After
completing that job, he resumed his work on the second floor.
About 3 or 4 p.m. Duncan handed Gaddy his last paycheck
and a State Unemployment Insurance form" and told him
that he was no longer needed since he had finished the work
which he was hired to do and that he would be called if in
the future the Company had more carpentry repair jobs.
Gaddy remarked that he knew his discharge was coming
because he had no job security." Since Gaddy 's separation no
employee has been hired to perform the type of repair work
Gaddy had performed for the Respondent.
Gaddy testified that at the time of his discharge there were
still floor repair jobs to be performed in storage rooms, hall-
ways, and the elevator which Duncan had mentioned to him
only 3 or 4 weeks before." Duncan, on the other hand, tes-
tified that all the repair work that Gaddy was hired to do was
completed by Gaddy and that whatever repairs he (Duncan)
and others thereafter made were inconsequential, amounting
to no more than a few hours work." There seems to be no
question that at the time of Gaddy's discharge the condition
of the floors in the warehouse, a 60-year old building, was not
the best and probably could stand improvement. However,
according to Duncan and Isadore Berger's testimony, the
condition of the flooring, in their business judgment, was
adequate and safe for its purposes and did not require further
repair." Considering the Respondent's demonstrated opposi-
tion to Gaddy's membership in the Union and its precipitate
discharge of Gaddy on July 28 in reprisal for his interest in
that organization and the summary nature of Gaddy's dis-
charge on August 6 after his reinstatement, I find more con-
vincing, and I credit, Gaddy's above testimony that previ-
10 It is not significant to determine whether, as Duncan testified , he also
asked Gaddy why he chose an operating engineers ' union in preference to
a carpenters ' union in view of the fact that he was doing carpentry work for
the Respondent.
" This is an application for unemployment insurance benefits which the
State of New York requires discharged or laid-off employees to fill out and
submit to an unemployment insurance office . After the completed form is
filed, the unemployment insurance office mails to the employer a statement
on which he is required to indicate the reason for the separation . Duncan
testified that the Respondent returned such a completed statement to the
State office but did not make a copy of its reply for its own files.
" These findings reflect my appraisal of the testimony of Gaddy and
Duncan.
" It appears that the Respondent has always kept on hand flooring and
other materials . For this reason, I attach no significance to the fact that there
were such materials left over at the time of Gaddy's discharge.
" Duncan testified that the elevator floor was never replaced because in
June or July an elevator company representative advised that it was not
feasible to install a new wooden floor there but that he had other ideas
regarding the type of floor which should be installed . These ideas, Duncan
testified , had not yet been conveyed to the Respondent . It appears that a few
weeks before the hearing Duncan had fixed a worn area in the elevator with
a 10.-inch square piece of plywood.
Testimony was also adduced concerning the Respondent 's hiring of a
contractor to remodel a wing of the Respondent's premises which was leased
to another company. I do not believe that this was work the Respondent
improperly withheld from Gaddy.
" Although there is undisputed testimony, which I accept , that neither
the Union nor the Teamsters complained about the condition of the ware-
house and that city building inspectors have never found safety violations
in the warehouse, the Respondent , nevertheless , admits that when it hired
Gaddy the condition of the floors and the cooler doors had deteriorated to
the point where their repair became an absolute necessity.
ROCHESTER REFRIGERATING CORP. 1043
ously designated work was still available to be performed
when he was terminated.
B. Concluding Findings
1. With respect to Gaddy's discharge
It is the General Counsel's position that the record estab-
lishes that Gaddy was discharged on August 6 because of his
membership in the Union and his designation of that organi-
zation as his bargaining agent . The Respondent, on the other
hand, contends that no case of discrimination was made out,
insisting that the evidence shows that Gaddy's termination
resulted solely from his completion of specified carpentry
repair jobs he was hired to perform. A careful review of the
evidence persuades me to find merit in the General Counsel's
position.
Without repeating the details, it is perfectly clear that the
moment Union Business Manager Winterman apprised the
Respondent's President Milton Berger and Treasurer Isadore
Berger on July 28 that Gaddy had authorized the Union to
represent him, Milton Berger ordered Gaddy' s termination
which was immediately effectuated. Manifestly, such conduct
was the bluntest form of interference with an employee's
statutory right to choose a labor organization he desires to
join and bargain for him and a potent discouragement of
union membership prohibited by the Act.16 Although shortly
thereafter the discharge order was rescinded and Gaddy was
directed to return to work, Milton Berger's undisguised hos-
tility to Gaddy's selection of the Union as his bargaining
agent is certainly a relevant factor to be considered along with
other facts and circumstances in determining the motivation
underlying Gaddy's termination only 9 days later on August
6.
As indicated above, the Respondent justifies Gaddy's dis-
charge on August 6 on the ground that he had completed the
repair work he was hired to perform. If this were really the
reason, there could be no question that the Respondent acted
well within its management rights. Indeed, it is axiomatic
that an employer may discharge an employee for any reason
-good, bad, or indifferent-provided union-related consid-
erations do not enter into his decision. However, I have previ-
ously discredited the Respondent's explanation and found
that at the time of Gaddy's separation on August 6 there were
repair jobs still to be performed, which only 3 or 4 weeks
before Plant Manager Duncan had mentioned to Gaddy." In
these circumstances, the Respondent's unconvincing expla-
nation and the availability of work clearly warrant the infer-
ence that the purported reason for the discharge was pretex-
tual and that the true reason was the Respondent's
displeasure with Gaddy's union affiliation." Although the
Respondent has generally had a history of harmonious union
relations free of antiunion conduct, this cannot possibly ne-
gate an inference of discriminatory motivation in the face of
the Respondent's demonstrated hostility to Gaddy's affilia-
" As will be discussed later, this episode is alleged in the complaint to
be a violation of Sec. 8(a)(1) of the Act.
" To be sure, this does not mean that Gaddy's employment would have
terminated, absent discriminatory motivation, immediately upon the com-
pletion of those jobs. As indicated above, Gaddy was hired for no specified
period. While certain conditions in the warehouse were shown to him as
requiring repair when he was interviewed, the record does not unequivocally
establish that the Respondent intended only those jobs to be performed and
that Gaddy's employment would automatically cease on their completion.
" Winchester Spinning Corporation v. N.L.R.B., 402 F.2d 299, 306
(C.A. 4), in which the court observed that "[w]here an asserted business
motive is discredited or contradicted by substantial evidence, the Board is
free to treat it as pretextuous and infer discrimination on account of union
activity."
tion with the Union on July 28, as well as its prior admonition
to Gaddy not to join any union.
Also lending support to a finding of discrimination is the
fact that the Respondent, having exhibited only 9 days earlier
a disposition to punish Gaddy for his union interest, has
failed to present persuasive evidence that it had mended its
ways since then and acted on the basis of legitimate consider-
ations in terminating Gaddy on August 6 . True, this is a
difficult burden to meet but the Respondent has only itself to
blame for getting tangled in its own traces.
In sum, I find that Gaddy was discharged in reprisal for his
affiliation with the Union and authorizing that organization
to be his bargaining agent . Such conduct plainly constitutes
discrimination in employment to discourage union member-
ship in violation of Section 8(a)(3) of the Act and interfer-
ence, restraint, and coercion of employees violative of Section
8(a)(1) of the Act.
2. With respect to the Respondent's other conduct
The complaint alleges that Plant Manager Duncan en-
gaged in the following conduct violative of Section 8(a)(1) of
the Act: On July 28 and 30, he interrogated an employee
concerning his union membership, sympathies, and activities;
on July 28, he promised an employee increased benefits if he
did not join the Union; on the same day he threatened to fire
an employee if he joined the Union; and, on March 24, he tore
up an employee's union membership card and declared that
the employee did not have to join a union and that the Re-
spondent did not want him to join one. It is undisputed that
the employee referred to in the complaint is Gaddy.
I find nothing in the incidents on July 28 and 30, previously
described in this Decision, which establishes any interroga-
tion coercive in nature falling within the prohibitions of the
Act. Nor am I able to construe Duncan's remarks to Gaddy
on July 28 that he was already enjoying company benefits as
amounting to a promise of increased benefits. Accordingly,
dismissal of these allegations of the complaint is recom-
mended.
As for the episode on July 28 when, pursuant to instruc-
tions, Duncan discharged Gaddy because of his designation
of the Union as his bargaining agent and shortly thereafter
reinstated him, I find that Duncan's conduct carried the plain
implication that Gaddy, who undoubtedly soon became
aware of the reason for the discharge, risked further reprisals
if he continued his union affiliation. Unquestionably, such an
implied threat impinges on employee statutory rights and
violates Section 8(a)(1) of the Act.
Concerning the March incident, it appears that Gaddy,
who was not covered by the Teamsters contract in effect at
the warehouse at the time, was nevertheless given by a super-
visor two Teamster cards, one providing for a change of
beneficiary and the other providing a new checkoff authoriza-
tion. When Duncan observed Gaddy filling out these cards,
he told Gaddy that the cards were not intended for him and
thereupon seized and tore them up. While Duncan's conduct
might be excused had nothing else transpired, his other re-
marks to Gaddy on this occasion, which he repeated later in
the day, that the Respondent did not want him to join any
union at all necessarily suggested that the Respondent also
would not countenance disobedience of its wishes as subse-
quent events proved. Under these circumstances, I find that
the Respondent imposed an unjustified restraint upon Cad-
dy's exercise of a statutory right and thereby violated Section
8(a)(1) of the Act.
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE REMEDY
Pursuant to Section 10(c) of the Act, as amended, it is
recommended that the Respondent be ordered to cease and
desist from engaging in the unfair labor practices found and
like and related conduct and take certain affirmative action
designed to effectuate the policies of the Act.
I have found that the Respondent unlawfully discharged
employee Donald L. Gaddy because of his union affiliation.
To remedy this violation, I recommend that the Respondent
offer him immediate and full 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," and make him whole for any loss of earnings he
may have suffered by reason of the discrimination against him
by payment to him of a sum of money equal to that which
he normally would have earned from August 6, 1971, the date
of his discharge, to the date of the offer of reinstatement, less
his net earnings during the said period. Backpay shall be
computed with interest on a quarterly basis in the manner
prescribed by the Board in F W. Woolworth Company, 90
NLRB 289, 294, and Isis Plumbing & Heating Co., 138
NLRB 716. To facilitate the computation, as well as to clarify
the named employee's rights to reinstatement, the Respond-
ent shall make available to the Board, upon request, payroll
and other records necessary and appropriate for such pur-
poses. I further recommend that the Respondent notify
Gaddy of his right to reinstatement upon application if he is
serving in the Armed Forces of the United States. The posting
of an appropriate notice at the Respondent's warehouse and
office is also recommended.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The 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 Donald L. Gaddy because of his affiliation
with the Union and designation of that organization to bar-
gain for him, the Respondent has engaged, and is engaging,
in unfair labor practices within the meaning of Section 8(a)(3)
of the Act.
4. By the foregoing conduct and by threatening employee
Gaddy with discharge or other reprisals if he joins the Union
and otherwise directing him not to become a member of any
labor organization, the Respondent has interfered with, re-
strained, and coerced employees in the exercise of their statu-
tory rights within the meaning of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. The Respondent has not engaged in other conduct viola-
tive of Section 8(a)(1) of the Act as alleged in the complaint.
Upon the foregoing findings of fact, conclusions of law, and
the entire record, and pursuant to Section 10(c) of the Act,
as amended, I hereby issue the following recommended:20
" This order shall not be construed to deprive the Respondent of its right
to terminate or lay off Gaddy or any other employee for reasons not
grounded on union-related considerations.
30 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
ORDER
The Respondent, Rochester Refrigerating Corporation,
Rochester, New York, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in International Union of
Operating Engineers, Local 71-71A, AFL-CIO, or any other
labor organization, by discharging or laying off employees or
discriminating against them in any other manner in regard to
their hire or tenure of employment or any term or condition
of employment.
(b) Threatening employees with discharge or other repris-
als if they join the above-named union or any other labor
organization or otherwise directing them not to become
members of such labor organization.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights to
self-organization, to form, join, or assist the above-named
union or any other labor organization, to bargain collectively
through representatives of their own choosing, to engage in
concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any and all
such activities except to the extent that such right may be
affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized by
Section 8(a)(3) of the Act.
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act:
(a) Offer Donald L. Gaddy immediate and full reinstate-
ment to his former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his se-
niority or other rights and privileges, and make him whole for
any loss of earnings he may have suffered by reason of the
discrimination against him in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents , for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary or
useful in analyzing the amount of backpay due and the right
of reinstatement and employment under the terms of this
recommended Order.
(c) Notify Gaddy, if presently serving in the Armed Forces
of the United States, of his right to full reinstatement upon
application in accordance with the Selective Service Act and
the Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
(d) Post at its warehouse and office in Rochester, New
York, the attached notice marked "Appendix."" Copies of
said notice, on forms provided by the Regional Director for
Region 3, after being duly signed by the Respondent's author-
ized representative, shall be posted by the Respondent im-
mediately upon receipt thereof and be maintained by it for 60
consecutive days thereafter in conspicuous places, including
all places where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that said notices are
not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 3, in writing,
within 20 days from the receipt of this Decision what steps
the Respondent has taken to comply herewith."
II In the event that the Board 's 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 be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
" In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read:
ROCHESTER REFRIGERATING CORP. 1045
IT IS FURTHER ORDERED that the allegations of the com- bargain collectively through representatives of their own
plaint that the Respondent interrogated an employee and choosing, to engage in concerted activities for the pur-
promised him increased benefits in violation of Section 8(a)(1) pose of collective bargaining or other mutual aid or pro-
of the Act be, and they are, hereby dismissed. tection, or to refrain from any or all such activities ex-
"Notify the Regional Director for Region 3, in writing , within 20 days from
the date of this Order what steps the Respondent has taken to comply
herewith."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
This Act gives all employees the following rights:
To organize themselves
To form, join , or support unions
To bargain as a group through a representative
they choose
To act together for collective bargaining or other
mutual aid or protection.
WE WILL NOT discharge or layoff any employee or
otherwise discriminate against him because of his mem-
bership in , sympathies or activities on behalf of Interna-
tional Union of Operating Engineers , Local 71-71A,
AFL-CIO , or any other labor organization.
WE WILL NOT threaten employees with discharge or
other reprisals if they join the above-named union or any
other labor organization or otherwise direct them not to
join such labor organization.
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce employees in the exercise of
their right to self-organization , to form , join, or assist the
above-named union or any other labor organization, to
cept to the extent that such right may be affected by an
agreement requiring membership in a labor organization
as a condition of employment as authorized by Section
8(a)(3) of the Act.
WE WILL offer Donald L. Gaddy immediate and full
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,
and make him whole for any loss of earnings suffered by
reason of the discrimination against him.
WE WILL notify Donald L. Gaddy, if presently serv-
ing in the Armed Forces of the United States, of his right
to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
ROCHESTER
REFRIGERATING
CORPORATION
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by any-
one.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced, or
covered by any other material. Any questions concerning this
notice or compliance with its provisions may be directed to
the Board's Office, Federal Building , Ninth Floor, 111 West
Huron Street, Buffalo , New York 14202, Telephone 716-
842-3100.