Roskam Baking Co.

ROSKAM BAKING COMPANY 15 APPENDIX NOTICE TO ALL EMPLOYEES Pursuant , to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our employees that: WE WILL NOT threaten to discharge any of our employees to induce them or others to withdraw their support, or activities on behalf, of Local 1052, Brotherhood of Painters , Decorators and Paperhangers of America, AFL-CIO, or any other labor organization. WE WILL NOT in any like or related manner interfere with , restrain, or coerce our employees in the exercise of the right to self-organization , to form labor organizations, to join or assist Local 1052, Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of mutual aid or protection, and' to refrain from any or 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. All our employees are free to become or to remain members of Local 1052, Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO, or any other labor organization , or to refrain from such membership except to the extent that this right may be affected by an agreement authorized by Section 8(a) (3) of the Act. KOERTS GLASS AND PAINT COMPANY, INC., Employer. Dated------------------- By-------------------=------------------------ (Representative ) (Title) 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. Employees may communicate directly with the Board's Regional Office, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan, Telephone No. 226- 3230, if they have questions concerning this notice or compliance with its provisions. Roskam Baking Company and American Bakery and Confec- tionery Workers" International Union, AFL-CIO.. Cases Nos. 7-CA-3899 and 7-CA-3899(2). February 17, 1964 SUPPLEMENTAL DECISION AND ORDER On June 18, 1963, the Board issued its Decision and Order in the above-entitled case,' finding that Respondent had discriminated against employees David Storey and Roger Markle in violation of Section 8(a) (3) and (1) of the Act, and directing, inter alia, that the Respondent offer said employees immediate and full reinstatement and make them whole for any loss of earnings suffered by reason of the Respondent's discrimination against them. On September 26, 1963, the Board's Regional' Director for the Seventh Region issued and served upon the parties a backpay speci- fication and notice of hearing, alleging that Respondent's obliga- i 142 NLRB 1173. 146 NLRB No. 7. 744-670-65-vol. 146-3 16 DECISIONS OF NATIONAL,LABOR RELATIONS BOARD tion to make whole employees Markle and Storey will be discharged by payment of certain liquidated amounts due them in the period between the unlawful discrimination against them and June 30, 1963, and additional undetermined amounts accumulating from July 1, 1963, to the date of offers of reinstatement. The Respondent filed an answer thereto. Pursuant to notice, a hearing was held before Trial Examiner W. Gerard Ryan for the purpose of determining the amounts of backpay due the aforesaid employees in the period from the date of the discrimination against them to June 30, 1963. On December 20, 1963, the Trial Examiner issued the attached Supple- mental Decision. Thereafter, the General Counsel filed exceptions and a-supporting brief. Pursuant to the provisions of Section 3(b) of the Act,,the. Board has delegated its powers in connection with this case to a three- member panel [Members Leedom, Fanning, and Brown]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire record in this case, including the Trial Examiner 's Supplemental Decision, the exceptions, and brief, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner subject to the additions and modifications made below. The Trial Examiner found that Markle was entitled to $547.67, the amount set forth in the specification as accruing in the period between his unlawful discharge and June 30, 1963, and that Storey was en- titled to the sum of $207.66, covering the period between his unlawful demotion and the cessation of his active employment on December 18, 1962, due to a back injury. The Trial Examiner also concluded that as Storey's back condition rendered him unfit for maintenance work on December 18, 1962, his right to backpay was terminated on that date. No exceptions-were filed to the Trial Examiner's findings as to the liquidated amounts due up.to the said dates. The General Counsel excepts to the Trial Examiner's failure specifi- cally to acknowledge that Respondent's liability to Markle also in- cluded undetermined amounts accumulating after June 30, 1963, the cutoff date for determining the liquidated sums due under the specifi- cation. We find merit in this exception and hold that Respondent's liability to Markle shall also include additional undetermined sums accumulating between July 1, 1963, and such time as he is offered reinstatement to his former or a substantially equivalent position. We also find merit in the General Counsel's further exception to the Trial ' Examiner's conclusion that Respondent's obligation to 'Storey did not extend beyond the fourth quarter of 1962. In our original Decision and Order we found that on 'September 23, 1962, Storey was ROSKAM BAKING COMPANY 17 discriminatorily .demoted from the position of maintenance man to a job on the end of an automatic bread wrapper, which carried a lower rate of pay. Following the unlawful demotion, Storey continued to, work on the bread wrapper until December 18, 1962, when a back *condition' rendered him unavailable for duty. Because of the discrim- ination against Storey, our Decision and Order provided the usual remedy directing Respondent to reinstate him and to make him whole for lost earnings "from the date of discrimination :.. to the date of offer of reinstatement." However, at that time we were aware of Storey's back condition and its possible effect upon his ability to per- form maintenance work, and therefore made express reference to Re- spondent's existing right to discharge Storey should his physical condition render him unfit to perform the maintenance job, and indi- cated that, in determining Respondent's liability for backpay, this should be given consideration in accordance with the Board' s usual practice. The Trial Examiner construed our Order as terminating Respond- ent's liability to Storey on December 18, 1962, should it be found that Storey was unable to work as a maintenance man on that date. He thus regarded the question of whether or not Storey was so qualified on that date as the only issue before him and, after finding that Storey was not, concluded that Respondent's backpay obligation ceased at that time. We disagree with the Trial Examiner's interpretation of our Order. Contrary to his-view, it contemplated future action by the Respond- ent? Respondent's liability continued after December 18, 1962, sub- ject to its being tolled while Storey was physically unfit for mainte- ,nance work. As is customary in such cases, that liability would terminate on either of two conditions-Respondent's offering Storey .reinstatement to maintenance work or a substantially equivalent posi- tion; or his discharge, on nondiscriminatory grounds, because of his in- ability to.perform maintenance work. Neither has yet occurred. The record does not indicate that Storey was ever offered adequate rein- statement. Nor does the Respondent contend that he was terminated because of his back condition. On the contrary, the evidence shows that the Respondent purported to treat Storey in accordance with its .policy of seeking other work for employees with physical limitations until they get well and continued to regard Storey as an employee at ;all,times.3 Accordingly, we turn to the fully litigated issues, not con- 2 Industrial Cotton Mills (Division ofJ. P. Stevens : Company), 102 NLRB 1205,1281. 8 When ' Storey reported for work on January 9, 1963, Respondent refused to restore him to. maintenance work, because of physsical limitations indicated in' a letter from Storey's doctor, but, without discharging Storey, offered .him -work in the admittedly . more strenu- ous job on the end of the bread wrapper. Storey rejected this job on advice from his, doctor. ., In-addition ;: Storeyiwas never: notified thereafter that Respondent considered his employment terminated. 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sidered by the Trial Examiner, bearing upon Respond'ent's obligation to Storey after December 18,1962. The General Counsel concedes that Respondent's obligation was tolled between December 18, 1962, and January 9, 1963, but contends that Respondent is liable for additional sums accumulating after January 9, 1963, on which date Storey became fully qualified for maintenance work. The record shows that on January 9, Storey re- ported for work with a letter from his doctor indicating that he could return to so-called "favored" work and was able to stand, walk, or bend occasionally but not frequently, and that he should not work in an awkward position. As the undisputed evidence reveals that such activities are a substantial part of the regular and recurrent duties of .the maintenance job, we are satisfied that Storey remained unavail- able for duty on January 9. However, the record further shows that Storey received a final re- lease from his doctor on February 20, 1963, and that he was then working as an installer of electronic sound equipment. The installer job involves frequent work on ladders and scaffolding and carrying tools, ladders, unassembled scaffolding, and equipment; it thus en- tails physical demands comparable to the maintenance job. Storey continued to be employed on this job at the time of the hearing herein, On these facts, we are satisfied that Storey became fully qualified to resume work as a maintenance man on February 20, 1963. Accord- ingly, we find that Respondent's liability was abated between Decem- ber 18, 1962, and February 20, 1963, but that it resumed on the latter date and shall continue until such time as Storey is offered reinstate- merit in compliance with the terms of our original Order.4 ORDER On the basis of the foregoing Supplemental Decision and Order and the entire record in this case the National Labor Relations Board hereby orders that the Respondent, Roskam Baking Company, Grand Rapids, Michigan, its officers, agents, successors, and assigns, shall pay to Roger Markle the sum of $547.67 as backpay for the period of October 3, 1962, to June 30, 1963, plus additional undetermined amounts that may accumulate on and after July 1,1963, and until said employee is offered employment in his former or a substantially equiva- lent position; and that said Respondent shall pay David Storey the sum of $207.66 covering the third and fourth quarters of 1962 and other undetermined amounts accumulating on and after February 20, 1963, and until Storey -is offered reinstatement to the position of maintenance man or a substantially equivalent position; and that the ' The exact amount due Storey from February 20, 1963, to June 30, 1963, is not determinable on this record. ROSKAM BAKING COMPANY 19 Regional Director ,for the Seventh Region is authorized to take 'ap- propriate steps consistent with the findings hereinabove set forth, without prejudice to the conduct of additional backpay proceedings. TRIAL EXAMINER'S SUPPLEMENTAL DECISION AND RECOMMENDED ORDER STATEMENT OF THE CASE This is a supplemental proceeding heard before Trial Examiner W. Gerard Ryan in Grand Rapids , Michigan, on October 22, 1963, on the backpay specification issued September 26, 1963, and answer of Respondent thereto. THE ISSUES AND CONCLUSIONS On June 18, 1963 ; the Board issued its Decision and Order ( 142 NLRB 1173) directing the Respondent, inter alia, to offer to David Storey and Roger Markle immediate and full reinstatement to their former or substantially equivalent posi- tions, without prejudice to their seniority and other rights and . privileges, and make them whole for any loss of pay they may have suffered by reason of the discrimina- tion against them, by paying each of them a sum of money equal to the amount that each would normally have earned as wages from the date of the discrimination against them to the date of offer of reinstatement , less net earnings , and including the payment of interest at the rate of 6 percent per annum to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. The answer admitted the allegations of the backpay specification except only that the Respondent denied that David Storey 's backpay period continued after January . 8, 1963 ; that Storey became unavailable for work of the type directed by the Board on December 18, 1962, because of an injury unrelated to his work and that such disability continued after January 8, 1963 ; and further that Storey's backpay should be limited to $207 .66 covering the fourth quarter of 1962 , as shown on page 2 of Appendix 4 of the backpay specification. The backpay specification admitted that Storey was unavailable for employment due to an injury from December 18, 1962 , through January 8 , 1963 . Storey testified that he received regular treatments for his back until . January 8, 1963. In its Decision and Order hereinabove referred to, the Board stated: With regard to Storey, certain additional comments are in order . The record shows that, following his discriminatory demotion , his employment ceased be- cause of a physical disability described as an "extra vertebra in his back." Although we cannot determine whether this disability would have made him unfit to perform his maintenance work .at the time his active employment ceased, in directing the normal reinstatement remedy and backpay we have not over- looked such possibility. Thus, we shall direct reinstatement subject to Respond- ent's right to discharge Storey should it be established that Storey's physical condition rendered him unfit for work as a maintenance man." In determining Respondent's liability for backpay, consideration should be given to the possi- bility that Storey's disability would have rendered him unemployable as a maintenance man at the time his active employment ceased. n Industrial Cotton Mills, 102 NLRB 1265, 1281. At the hearing the Respondent introduced into evidence a statement from Storey's physician, Dr. Schaubel, dated January 8, 1963, stating that David Storey may return to "favored" work and that he may stand, walk, or bend down occasionally but not frequently and should-not work in an awkward position. On January 9, 1963 , Storey presented Dr. Schaubel's letter to the Respondent. Storey had a conference with the Production Manager Idris Wright and Dick Nauta, the bookkeeper. The Respondent decided that it would not employ Storey, as a maintenance man in view of the physical limitations contained in Dr. Schaubel's letter. He was offered a job on the end of the bread wrapper which Storey refused as Dr. Schaubel had told Storey not to resume that work. CONCLUSIONS In that part of the Board's Order quoted above the Board directed Storey 's rein- statement subject to Respondent's right to discharge Storey should it be established that Storey's physical condition rendered him unfit for work as a maintenance man. 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As the Board further stated it could not overlook the possibility that Storey 's physical disability made him unfit to perform his maintenance work at the time his active employment ceased (December 18, 1962). Accordingly, I consider the question before me to be : Did Storey's physical disa- bility render him unfit to perform his maintenance work at the time his active employment ceased on December 18, 1962 . The backpay specification admitted that Storey was unavailable for employment due to an injury from December 18, 1962, through January 8, 1963 . On January 8, 1963 , Storey's physician reported he was able to stand, walk, or bend down occasionally, but not frequently, and that he should not work in an awkward position . The record shows and Storey admitted there were times when it was necessary for a maintenance man to work in an awkward position. The Respondent decided on January 9, 1963 , that he would not be able to perform the full duties of a maintenance man. I therefore find that Storey's physical condition made him unfit to perform main- tenance work at the time his active employment ceased on December 18, 1962, and consequently his right to backpay did not extend beyond the fourth quarter of 1962. The amount of backpay owing by Respondent to David Storey is therefore fixed at the sum of $207 .66 as set forth in Appendix 4, page 2 , of the backpay specifi- cation. The amount of backpay owing to Roger Markle which is not controverted is fixed at the sum of $547.67 as set forth in Appendix 3, page 3, of the backpay specification. RECOMMENDED ORDER It is hereby recommended that the Board adopt the foregoing findings and con- clusions and order the Respondent to pay Roger Markle the sum of $547.67 and David Storey the sum of $207.66. Both sums are to bear interest at the rate of 6 percent as directed by the Board. Young Men's Christian Association of Portland, Oregon and Office Employees International Union , AFL-CIO, Local No. 11. Case No. A0-71. February 17, 1964 ADVISORY OPINION This is a petition filed on December 26, 1963, by Young Men's Christian Association of Portland, Oregon, herein called the Peti- tioner, for an advisory opinion in conformity with Section 102.98 and 102.99 of the National Labor Relations Board's Rules and Regula- tions, Series 8, as amended. Thereafter, on December 30, 1963, Office Employees International Union, AFL-CIO, Local No. 11, herein called the Union, filed a response for a petition for Advisory Opinion. By letter dated January 9, 1964, the Petitioner advised that it was not taking a position on the jurisdictional issue herein. In pertinent part, the petition, response, and letter of January 9, 1964, allege as follows : 1. There is presently pending before the Oregon State Labor- Management Relations Board, herein called the State Board, a repre- sentation petition (Case No. 12-63) filed by the Petitioner alleging that on November 8, 1963, the Union claimed recognition as the bar- gaining representative of the office, clerical, and closely related em- ployees at the Petitioner's several branches and offices within the Metropolitan Portland, Oregon, area. 146 NLRB No. 2.