Lorenz & Sons, Inc.

National Labor Relations Board - Board Decisions

Apr 21, 1975

217 N.L.R.B. 471 (N.L.R.B. 1975)

LORENZ & SONS, INC. 471
Lorenz & Sons, Inc. and Michael S. Pullo. Case
3--CA-5668
April 21, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
On November 22, 1974, Administrative Law Judge
George J. Bott issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and Respondent filed
an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations 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 at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, except as modified
herein.' -
The Administrative Law Judge made findings,
which are unchallenged by Respondent, that on May
13, 1974, during the course of the meeting between
Respondent's president and treasurer and the five em-
ployees illegally discharged concerning contract
proposals drafted by them, Walter Lorenz questioned
each employee present individually as to whether he
was a party to the proposal and stated that he (Lorenz)
did not want a union and would sell his trucks before
he would have one. Later, Dorothy Lorenz, Respon-
dent's treasurer, accused one or two of the employees
of starting the concerted activity and warned all of
them not to try to collect unemployment pay or to give
Respondent as a reference, for none would be forth-
coming. None of these actions was specifically alleged
in the complaint as constituting an independent viola-
tion of Section 8(a)(1), and the Administrative Law
Judge, apparently because of this, failed to find them to
be violations of the Act. The General Counsel has filed
exceptions which, for the reasons hereafter stated, we
find meritorious.
It cannot be gainsaid that the above interrogations
and threats are violative of the Act on their face, and
especially in the context of the underlying violations of
Section 8(a)(3) in which they occurred. While it is true
that neither the original complaint nor the amendments
i We find no merit in General Counsel's exceptions to the Administrative
Law Judge's findings and conclusion that Respondent did not constructively
discharge Pullo, Kuropatwa, and Mullar on May 29, 1974, in violation of
Sec 8(a)(3) and (1) of the Act, as alleged in the complaint. In the absence
of exceptions, we adopt pro forma the Administrative Law Judge's finding
that Respondent's discharges of Mullar, Pullo, Miller, Kuropatwa, and Ben-
gert on May 13, 1974, were in violation of Sec 8(a)(3) and (1) of the Act.
thereto referred specifically to these actions as separate
violations , it is also true that the Administrative Law
Judge's factual findings concerning both the interroga-
tions and threats were related to the general subject
matter of the complaint and charge, the facts were fully
litigated , and the Respondent did not object to tes-
timony concerning them . Rochester Cadet Cleaners,
Inc., 205 NLRB 773 (1973). We therefore find these
actions to be violative of Section 8(a)(1) of the Act and
shall amend the recommended Order and notice ac-
cordingly.
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 Administrative Law Judge as modified below and
hereby orders that Respondent, Lorenz & Sons, Inc.,
Lancaster, New York, its officers, agents, successors,
and assigns, shall take the action set forth in the Ad-
ministrative Law Judge's recommended Order, as
herein modified:
1. Insert the following as subparagraphs 1(b) and (c)
and reletter subparagraph 1(b) as 1(d):
"(b) Coercively interrogating its employees concern-
ing their union and/or protected concerted activities."
"(c) Threatening its employees with reprisals be-
cause they engaged in union and/or protected con-
certed activities."
2. 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
WE WILL NOT coercively interrogate our em-
ployees concerning their union and/or protected
concerted activities.
W WILL NOT threaten our employees with repris-
als because they engaged in union and/or pro-
tected concerted activities.
WE WILL NOT discharge employees or otherwise
discriminate against them because of their union
or other concerted activities.
Gerald Mullar, Michael Pullo, Richard Miller,
Stanley Kuropatwa, and Dennis Bengert were
made whole by us for the loss of wages they suf-
fered in May 1974,because of their discriminatory
discharges, and they were all, with the exception
of Bengert, who declined our offer, reinstated to
their former jobs.
217 NLRB No. 79
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of
their rights guaranteed in Section 7 of the National
Labor, Relations Act, as amended, except to the
extent that such rights may be affected by an
agreement requiring membership in a labor organ-
ization as a condition of employment as author-
ized in Section 8(a)(3) of the Act.
All our employees are free to join or not to join
Lorenz & Sons Independent Union or any other labor
organization.
LORENZ & SONS, INC
DECISION
STATEMENT OF THE CASE
GEORGE J. BoTT, Administrative Law Judge: The hearing
in this matter, with all parties represented , was held at Buf-
falo, New York, on September 4 and 5, 1974, based on a
charge of unfair labor practices filed by Michael S . Pullo on
May 13, 1974, against Lorenz & Sons, Inc., herein called
Respondent or Company, and a complaint issued by the Gen-
eral Counsel of the National Labor Relations Board on June
28, 1974, alleging that Respondent had engaged in unfair
labor practices within the meaning of Section 8(a)(1) and (3)
of the National Labor Relations Act, as amended, herein
called the Act. Subsequent to the hearing , General Counsel
and Respondent filed briefs which have been considered:
Upon the entire record in the case and from my observa-
tion of the witnesses, I make the following:'
FINDINGS OF FACT
I JURISDICTION OF THE BOARD
Respondent has a place of business in Lancaster, New
York, where it is engaged primarily as a paving contractor.
During the year prior to the issuance of the complaint, Re-
spondent received gross revenues in excess of $500,000 of
which amount in excess of_$50,000 was derived from per-
forming paving and related operations in New York State for
a retail chain enterprise which has annual sales in excess of
$500,000, and which annually purchases goods and materials
of a value in excess of $50,000 directly from points outside
the State of New York.
Respondent is an employer engaged in commerce within
the meaning of the Act.
II THE LABOR ORGANIZATION INVOLVED
Lorenz & Sons Independent Union is admittedly a labor
organization within the meaning of the Act.
- i General Counsel 's unopposed motion to correct the transcript is hereby
granted.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Discrimination in Violation of Section 8(a)(3) of the Act
1. The facts
a. The May 13 discharges
Because of the nature of its business , Respondent employs
fewer workers in the winter months than it does at other
times. In late April 1974, Respondent employed six construc-
tion workers?
Around the middle of April, employees Pullo, Kuropatwa,
Miller, Mullar, and Hughes met to discuss their wages and
working conditions and decided to form an independent
union and attempt to secure improved conditions through
bargaining with Respondent . Pullo agreed to draft contract
proposals, and at a second meeting at the end of April, the
group, which now included Bengert , approved and signed the
proposals that Pullo had drafted and agreed to submit them
to Respondent.
On-Monday morning, May 13, the employees who had
signed the contract proposals presented them to Respon-
dent's president , Walter Lorenz. Lorenz asked each employee
separately if he was a party to the proposals. James George,
a newly hired employee who had joined the group but who
had not signed the proposals , replied that he had just learned
about it and that it sounded good to him. Lorenz told him
that if he wanted to work , Respondent would find something
for him to do. Mrs. Lorenz, Respondent's treasurer and book-
keeper, was also present at the meeting , and she and her
husband, after reviewing the employees ' written proposals,
rejected them . Mr. Lorenz then handed the written proposals
back to Pullo, stating that he did not want a union and that
he would sell his trucks before he would have one. Mr. Lor-
enz then told the employees they were fired and ordered
"everybody out," of his office , instructing them to return in
an hour for their paychecks.
Mrs. Lorenz, who had left the office at some point, re-
turned and advised the employees that their checks would be
ready in an hour. She accused Pullo of starting the union
activity and told him and the others not'to try to collect
unemployment pay or to' give Respondent as a reference, for
none would be forthcoming. The employees returned in an
.hour and were paid off.'
2 Micheal Pullo, Gerald Mullar, Stanley Kuropatwa , Dennis Bengert,
Richard Miller, and Paul Hughes . It also employed shop mechanic Lloyd
Knowles, who does not figure in this case Hughes quit before the important
events in the case took place.
3 My findings about what occurred during the May 13 meeting are based
on the credited testimony of Pullo and Kuropatwa. Mr Lorenz ' testimony
is substantially consistent with much of the employees ' in regard to his
questioning of them about their involvement in the activity and his offer of
continued employment to George . Where it differs , I find it unreliable
because Lorenz was sometimes vague and uncertain , appearing at times as
trying to read an innocent meaning into his conduct after the event There
is no doubt in my mind that regardless of what particular words were used,
Lorenz made it clear to the employees that their employment , with the
exception of George 's was ended Mrs. Lorenz also attempted to read into
her husband 's remarks an offer of continued employment to all those present
under the same economic terms that existed However , she was not present
at all times, she had poor recall about certain remarks attributed to her
husband, and she did not deny certain statements attributed to her indicat-
ing intense resentment of the employees' union and concerted activities I
LORENZ & SONS, INC.
b. Offers of reinstatement
Pullo, Mullar, Kuropatwa, Bengert, and Miller were of-
fered reemployment on May 14 and, with the exception of
Bengert,4 returned to work on May 15, and it is agreed that
all of them were paid for the time they lost on May 13 and
14.5
c. Delayed acceptance of the offers of reinstatement
When Pullo, Kuropatwa, Mullar, and Miller returned to
work on May 15, they met with the Lorenzes and their attor-
ney, who is also an officer of the Company, and there was a
brief discussion of the proposals which the men had presented
on May 13. The men were advised that they were employees
of the Company and would be employed as long as there was
work for them and that counterproposals would be ready for
them by May 20, but the four decided not to work the rest
of the week but to return on May 20. This was acceptable to
Respondent, and the men agreed that they need not be paid
for Wednesday, May 15, through Friday, May 17. On Mon-
day, May 20. the four returned to work and were presented
with counterproposals. Pullo, who has apparently been acting
as a spokesman for the others, commented that the counter-
proposals would be studied, but that, in the meantime, they
were ready to return to work.
d. Job assignments and the constructive discharge issue
The complaint alleged that on their return to work on May
20', Pullo, Kuropatwa, and Mullar were assigned to more
arduous and less agreeable tasks and were constructively dis-
charged on May 29 6 A considerable amount of testimony
was taken in regard to the three employees' work assignments
before and after May 20 and particularly in the period be-
tween May 20 and May 29.
Although Walter Lorenz testified that Respondent hires
only laborers and has no classification of "truckdrivers," it is
clear from the record that he was again engaging in semantics
and avoiding the real issue; namely, whether the men were
assigned tasks on May 20 and thereafter substantially differ-
ent than those they had previously performed. Realistically
viewed, Pullo, Mullar, and Kuropatwa were "truckdrivers"
who also were on occasion assigned to do ordinary labor or
to operate other equipment. Pullo, for example, testified cred-
ibly and without any real contradiction that his principal job
was that of a truckdriver and that when there was truckdriv-
ing to do, he, Kuropatwa and Mullar did it. Kuropatwa and
Mullar were hired as laborers, but were later promoted to
driving trucks. Kuropatwa testified credibly that normally he
drives 95 percent of the time, and Mullar credibly stated that
find nothing in her testimony to shake my confidence in the account given
by the employees
4 Bengert apparently obtained employment somewhere else, and no claim
is made for him in this case.
5 Mrs. Lorenz telephoned the dischargees on May 14 and told, them to
return to work "the way it was before," because a "mistake" had been made,
according to Pullo. Mrs. Lorenz testifies that the action was taken on the
advice of counsel.
6 There is no contention that Miller's assignments changed after his return
to work on May 20
473
he and three or four other persons were truckdrivers
"primarily."
As indicated, the three had performed tasks other than
driving in the past. Pullo conceded that during his 4 years of
employment he had done labor work at times, such as spread-
ing blacktop and stone, moving concrete, and helping the
mechanics . In addition, he had operated a tractor and high-
lift. When he was reemployed in April 1974, after the winter
layoff and before the union activity started, he cleaned up the
Company's yard and loaded the material on a truck. Kuro-
patwa readily admitted that he had done labor work in the
past and had also operated the roller and bulldozer. Mullar
had also done a number of other jobs, including laboring,
spreading blacktop, and working with wood.
During the period in question, Respondent was working on
a large construction job called the Buffalo Drive-In, which
had been contracted in 1973 and was the first job of that
nature handled by it. The only other job of any significance
going at the time was work at a Burger King restaurant,
which was under construction. When Pullo, Kuropatwa,
Mullar, and Miller returned to work on May 20, they were
all assigned laboring work at the drive-in, picking up scrap.
Pullo testified that after working 1 day at the drive-in,
Foreman Edwin Lorenz told him and Miller to report to
work at the Burger King the next morning. When he arrived
at the jobsite, Walter Lorenz assigned him to operating a
backhoe to dig a drainage ditch. He protested that he had
never operated such a machine, but Lorenz insisted that the
work had to be done by someone. With Miller working in the
ditch, Pullo operated a backhoe all week and satisfactorily
completed the job. Monday, May 27, was a holiday, but on
May 28, Pullo was back at the drive-in loading into a truck
scrap steel from a movie screen which was being demolished.
The record shows that Mullar, from May 20 to May 29,
worked at the drive-in picking up debris, cutting steel, sup-
porting the movie screen with a torch with which he was
experienced, and, on one day, standing over Edwin Lorenz,
while he cut down the screen tower, in order to be able to
warn him if the structure showed signs of collapsing. During
the same period, however, he also did a certain amount of
truckdriving. On May 20, he drove Kuropatwa's truck from
the Company lot to the drive-in. On May 21, he hauled slag
all day from one part of the drive-in to another, using the
hi-lift to load the truck. On May 28, according Pullo and
Kuropatwa, he drove a truck at least part of the time.
Kuropatwa worked at the drive-in from May 20 through
28. Although he testified that he did no driving during that
time, the record shows that in addition to the considerable
amount of ordinary labor he performed, he refused to drive
his truck to the drive-in on May 20 for personal reasons,
drove a truck for 11-1/2 hours on May 21 at the drive-in job,
and did some driving on May 22. During the period in ques-
tion, he also operated earth moving equipment which he had
operated before.'
According to Pullo and Mullar, and the record bears them
out, while they were doing laboring work at the drive-in or
the Burger King jobs from May 20 to the 29, four other newly
7 Based on credited testimony of Edwin Lorenz, who was the foreman on
the job and who testified from memory as well as on the basis of Kuropatwa's
timecard
474 DECISIONS OF NATIONAL-LABOR RELATIONS BOARD
hired persons were driving trucks; namely,, Jack and John
Delaney, James George, and David Hubbard.'
On May 29, Pullo, Mullar, and Kuropatwa reported to
work at the drive-in and asked Foreman Lorenz if there were
going to be any driving assignments for them that day. Ac-
cording to Pullo, Lorenz replied that there would not be,
because the men were going to have to work at the drive-in
until the job ' was finished. Kuropatwa added that Lorenz
indicated that there would be driving work for them "in the
future."' Edwin Lorenz testified that he told the men that
there was no driving work for them at the time, but there
would be later. Dissatisfied with Lorenz' response, the men
left the job. Pullo testified that he called Respondent's attor-
ney and informed him that the men were on strike because
of discrimination, and Mullar testified that they decided to
strike because they were doing laboring work and new em-
ployees were driving trucks.
e. Respondent 's explanation for the job assignments from
May 20 to May 29
Walter and Edwin Lorenz testified that because of wet
weather the drive-in job was behind schedule. During the
winter, the Company had trucked slag to the jobsite, but by
May 20 there was no more need or room for slag, and the next
major step would be trenching work for the wiring for the
speakers. Before the trenching work could begin, however, it
was necessary for the Company as general contractor to clean
up the area and demolish the old screen and concession build-
ing. According to, Walter Lorenz, he assigned the men to the
jobs in question based on his judgment of their qualifications
and his need. Edwin Lorenz testified without contradiction
that he requested that Mullar and Kuropatwa be assigned to
him at the drive-in because he had contracted for a trencher
machine, which can only be rented for 30 days, and he
wanted them to run it and told them so on May 24. He said
neither employee raised an objection to his plan, and he ad-
ded that Mullar had worked with him before on similar -as-
signments.
As indicated above, Pullo was transferred from the drive-in
job to the Burger King site on May 21. Walter Lorenz ex-
plained that he had been suddenly ordered by the restaurant's
representative to start the drainage work on the site because
other contractors were ready for other construction. He im-
mediately"assigned himself, Pullo, and Miller to the job,
choosing Pullo, he said, because he had operated a backhoe
before. Mullar could also operate a backhoe, but he was left
at the drive-in to cut steel with a torch because he was ex-
perienced in that work.
Walter Lorenz conceded that other employees drove
trucks while Pullo, Kuropatwa, and Mullar were working at
the drive-in or Burger King from May 20 to 29, but he and
Edwin Lorenz testified that Jack Delaney, who did the most
driving, was the only employee who had a class 1 driver's
license required to operate the dump truck, which was in use
8 Jack Delaney was hired as a driver on May 16; Hubbard was hired on
May 20; John Delaney was hired on May 17; George was hired in early May
and drove on May 20 and 21, but was terminated because he could not drive
The record is unclear about how much driving John Delaney did. Jack
Delaney and Hubbard are still employed as drivers
9 Mullar said that Lorenz replied that he did not know or was not sure.
at the time because of its efficiency and load capacity. They
also testified without contradiction that newly hired em-
ployee James George drove for only 2 days under Walter
Lorenz' supervision to see if he could qualify as a driver. He
was found unqualified and discharged. Hubbard, another
driver, was hired on May 22, and Walter Lorenz testified that
Hubbard drove with him so that he could gauge Hubbard's
competence. Hubbard is still employed as a driver.
Edwin and Walter Lorenz also testified without contradic-
tion that the Delaneys also did laboring work "on an off' at
the drive-in during the period under consideration and that
Hubbard did ordinary labor there for half a day. As stated
earlier, there is no evidence in the record on how much
driving Delaney Jr. did.
f. Events after June 25
Having left their jobs on May 29 under circumstances
which General Counsel contends amounted to a constructive
discharge, Pullo. Kuropatwa, and Mullar returned to work
on June 27 after receiving letters from Respondent, dated
June 25, offering to "reemploy" them. It is General Counsel's
contention that the men have not been fully reinstated to their
former positions because they all are working substantially
less hours than during previous years.
All three employees were assigned to driving trucks when
they returned to work, but Mullar testified that although he
used to put in 50 hours per week, after reemployment he
averaged only 30, because some days were short days and
there was no work for him on others. There is no clear evi-
dence in the record regarding how Pullo's and Kuropatwa's
hours of work after reinstatement compare with what they
were before May 29, but Pullo testified that Respondent has
changed its practice of providing work for employees regard-
less of the weather. He said that in the past he reported to
work at the Company's office each day and was given some-
thing to do, like hauling slag, even if the weather were bad,
but now employees are required to telephone Respotltient's
office each morning, and if there is no work for them, they
are told not to report.
Walter Lorenz testified that it has always been his policy
to assign work as equally as possible among the available
employees, and that he has continued to do so. Mr. and Mrs.
Lorenz testified that Respondent had fewer jobs in the 1974
season than it had in the past due in part to Mr. Lorenz'
inability to bid on jobs because he had to work on the drive-in
job when the employees left their jobs. With respect to Mul-
lar's claim of reduced hours, Mr. Lorenz testified without
contradiction that Mullar has turned down overtime work
since May 29, because he goes to school at night, and that he
has also called in from time to time to advise that he cannot
come to work: Although, as indicated above, Pullo and Kuro-
patwa made no specific claim about their hours being reduced
when they testified, Mr. Lorenz testified that they, too, had
refused to work overtime on occasion and, in Kuropatwa's
case, turned down Saturday work.
In regard to the requirement that employees call in before
reporting to work, Mr. Lorenz testified without contradiction
that this had been the Company's policy for a number of
years for economic reasons, but when he obtained the drive-in
job, which was the largest contract he ever had, he permitted
LORENZ & SONS, INC.
employees to report to the jobsite because he knew that even
if the weather was bad he could still use them to haul slag to
the site for storage. Upon completion of the drive-in,lob, this
practice became economically unfeasible, and so he reverted
to the earlier custom. -
B. Analysis Additional Findings and Conclusions
My findings that Walter Lorenz discharged Pullo, Mullar,
Miller, Kuropatwa, and Bengert on May 13, 1974, after they
presented a contract proposal to him and told him they had
formed an independent union, compels the conclusion that
they did not quit their employment but were terminated be-
cause of their union and concerted activities, in violation of
Section 8(a)(3) and (1) of the Act, but I am not persuaded
that General Counsel has established by a preponderance of
the evidence that Pullo, Mullar, and Kuropatwa were ille-
gallly and constructively discharged on May 29, following
their return to work on NL-iNl20, for the following reasons:
Despite the lack of confidence I have already indicated I
have in Walter Lorenz' testimony about having only "labor-
ers" in his employ and no classification of "truckdriver,"
Respondent is, nevertheless, a small enterprise engaged
primarily in paving parking lots and driveways, utilizing from
6 to approximately 20 rank-and-file employees, depending on
the season and the number of jobs on hand. Consequently, it
is understandable, and I so find, that employees are expected
to perform a variety of tasks, including ordinary labor and the
operation of earth moving machinery, even though some of
them may spend most of their time driving trucks. Indeed,
the record shows that in the past the alleged discnminatees
performed such work without complaint, and it must not be
lost sight of that even Respondent's "truckdrivers," like Pullo
and the others, normally do laboring work in connection with
their driving, for they help spread blacktop after they truck
it to the jobsite. Therefore, the assignment of Pullo, Mullar,
and Kuropatwa to clean up and other labor work at the
drive-in, and Pullo's subsequent transfer to the Burger King
job to operate a backhoe was not a -radical or even a major
change in company practice, nor was the work any more
onerous, demeaning, disagreeable, or unsafe than what the
employees had done before.1°
Other evidence relating to the assignments to the drive-in
and the Burger King negates the inference that Respondent
was attempting to force the men to quit. They were not told,
for example, that the assignments were permanent, or even
indefinite, but were in fact advised that they were to remain
at the drive-in only until the particular tasks they were doing
were completed and then they would return to driving. More-
over, Kuropatwa and Mullar actually did some driving dur-
ing the period in question and Kuropatwa turned down one
driving assignment. In addition, other drivers did some labor-
ing work at the drive-in as did one of Lorenz' sons, an indica-
tion that the work was not as demeaning as contended.
Respondent's explanation for its work assignments during
the period in question also appears plausible. As found above,
the drive-in job was running behind schedule and it was
10 Even if Pullo had never operated a backhoe before, as he testified, he
had operated other earth moving equipment in the past, and he successfully
completed digging the ditch without incident.
475
necessary to concentrate on removing the old building and
movie screen and cleaning up the site so that trenching work
could begin. Pullo, Kuropatwa, and Mullar were available
and qualified to do the work. In Kuropatwa's and Mullar's
cases, Edwin Lorenz credibly testified that he requested that
they be assigned to him for good business reasons and when
he explained the reason to them, they raised no objections. In
Pullo's case, Walter Lorenz' explanation that it was necessary
to assign employees immediately to the Burger King site to
comply with the customer's demand, and that Pullo was
qualified to do the work involved does not appear unreasona-
ble. In regard to why newer employees were not employed at
the drive-in and the Burger King instead of Pullo, Kuro-
patwa, and Mullar, Edwin and Walter Lorenz' testimony that
Jack Delaney's services as a driver were essential because he
was the only driver holding a class 1 truckdriver's license was
convincing and uncontradicted, and although the matter is
not free from doubt, I am not prepared to reject Respondent's
testimony that it had George and Hubbard driving under
supervision to determine whether they could qualify as truck-
drivers. Moreover, Delaney and Hubbard worked as laborers
at the drive-in for short periods and George lasted only 2 days
driving a truck.
For the reasons stated, based on the findings of fact more
extensively set forth above, I conclude that Respondent did
not constructively discharge Pullo, Kuropatwa, and Mullar
on May 29, 1974, in violation of Section 8(a)(3) and (1) of the
Act, as the complaint alleged."
General Counsel also contends that evidence of events after
June 25, 1974, when Pullo, Kuropatwa, and Mullar returned
to work for the second time in this dispute, shows that they
never have been fully reinstated to their former positions. I
conclude on the basis of the evidence previously set forth that
General Counsel has not carried his burden of proof here.
With respect to the number of hours worked, Respondent's
testimony that there was not as much work in August and
September of 1974 as there was in the past was not refuted,
and the testimony that Pullo, Kuropatwa, and Mullar have
turned down overtime work remained uncontradicted. I also
find on the basis of Walter Lorenz' uncontradicted testimony
that there actually has been no change in the policy about
calling in since it is the same as it was before the Company
obtained the drive-in job. When that job was begun it was no
longer necessary to call in because there was ample work for
all, but since the completion of that job that is no longer, the
case, and the old policy has been restored for justifiable
reasons."
11 I have examined the cases cited by General Counsel and find them
factually distinguishable In Dumas Brothers Manufacturing Company,
Inc., 205 NLRB 919 (1973), for example, the transfers were permanent and
to radically different positions in order, as found by the Board, to insulate
the employees from other employees. In Packerland Packing Company,
Inc, 203 NLRB 198 (1973), the assignments were also permanent and
clearly made because the drivers had "honored the picket line," and they
were also to jobs "more physically exacting" than the men had performed
in the past.
12 I find nothing in Walter Lorenz' address to employees, in August 1974,
about stopping too long for coffeebreaks, that shows continued animus
toward the drivers because of their union activities.
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, it shall be recommended that Respondent
cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Although I have found that Respondent discriminatorily
discharged Pullo, Kuropatwa, Mullar, Bengert, and Miller,
since they were all made whole for the time they lost as a
result of the discrimination against them, and since all re-
ceived offers of reinstatement and, except for Bengert, ac-
cepted them, the remedy will not include backpay or renewed
offers of reinstatement.
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. Respondent is an employer engaged in commerce within
the meaning of the Act.
2. The Union is a labor organization within the meaning
of the Act.
3. By discriminatorily discharging Gerald Mullar, Michael
Pullo, Richard Miller, Stanley Kuropatwa, and Dennis Ben-
gert, Respondent violated Section 8(a)(3) and (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
5. Respondent did not constructively discharge Michael
Pullo, Stanley Kuropatwa and Gerald Mullar on May 29,
1974, in violation of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER"
Respondent, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discharging employees or otherwise discriminating
against them because of their union or other concerted activi-
ties.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights guaran-
geed them in Section 7 of the Act.
2. Take the following action necessary to effectuate the
policies of the Act:
(a) Post at its Lancaster, New York facility, copies of the
attached notice marked "Appendix."" Copies of said no-
tice, on forms provided by the Regional Director for Region
3, shall, after being duly signed by Respondent, be posted
immediately upon receipt thereof in conspicuous places, in-
cluding all places where notices to employees are customarily
posted, and be maintained by, ip for 60 consecutive days.
Reasonable steps shall be taken'to insure that said notices are
not altered, defaced or covered by any other material.
(b) Notify the Regional Director for Region 3, in writing,
within 20 days from the date of this Order, what steps Re-
spondent has taken to comply herewith.
17 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, recommendations, and recommended Order 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.
14 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."