Rafaire Refrigeration Corp.

RAFAIRE REFRIGERATION CORP. Rafaire Refrigeration Corp. and Nicola Giordano. Case 29-CA-2585 November 23, 1973 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On June 25, 1973, Administrative Law Judge David S. Davidson issued the attached Supplemental Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions and a sup- porting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions , cross- exceptions, and briefs and has decided to affirm the rulings, findings, and conclusions of the Administra- tive Law Judge, as modified herein, and to adopt his recommended Order. The Administrative Law Judge found, inter aria, that Union Business Agent Rivera's instruction to discriminatee Nicola Giordano that he would have to report to work the next day did not afford Giordano a reasonable time for that purpose and was not a valid offer of reinstatement. We agree and adopt the Administrative Law Judge's finding in this respect.' However, there is an additional, and more funda- mental, reason why the offer was invalid; namely, the lack of any record evidence to show that (a) Giordano could reasonably have assumed that Rivera had been directed by-Respondent to commu- nicate an offer of reinstatement and (b) Rivera in fact had the authority to make such an offer. It is clear, as the Administrative Law Judge found, that Rivera acted at the specific request of Raffa, an owner of Respondent, and was Respondent's agent for that purpose. However, it is equally clear that Rivera never specifically told Giordano the nature of his authority or that Respondent had directed him to communicate ant offer of reinstatement on its behalf. The sole testimony relative to an offer of reinstate- ment in, March 1972 is by Rivera, who testified that Raffa told him "to get hold of Nick Giordano, I Chairman Miller concurs in the result for the sole reason that, in his view, Respondent bears the burden of showing that a clear understandable offer of reinstatement has been made which properly apprises the employee of the exact nature of the offer and allows the employee a reasonable time to respond.', On this record, the Chairman is of the view that Respondent failed to meet that burden. 2 The Administrative Law Judge found no indication of any continuing 523 because he wanted him back to work." This occurred a week or two after the original hearing on the complaint, which had been filed by Giordano as an individual, in this case.2 Rather than contacting Giordano directly, Rivera asked another employee in the shop to contact Giordano and ask him to call Rivera at his office. Giordano telephoned Rivera a day or two later. A close perusal of Rivera's testimony reveals that he recalled telling Giordano "that he guessed Raffa finally realized he was a good man and wanted him back to work," and that he, Rivera, instructed Giordano to go back to work the next day.3 However, Rivera further testified that: (I) he did not recall whether he told Giordano that Raffa had told him to call or that he was calling on behalf of the Respondent; (2) he did not say anything to Giordano about what his pay or seniority rights would be; and (3) he did not think Giordano made a response, and then that Giordano made a remark which he could not remember from which he concluded that Giorda- no understood what he had said. Based on our examination of Rivera's testimony, described supra, and the entire record, we are unable to find that Giordano could reasonably have as- sumed that Rivera had been directed to communi- cate an offer of reinstatement to him on behalf of the Respondent. Only shortly before the time of this offer, Respondent was vigorously contesting Giorda- no's claim that he was unlawfully discharged. Consequently, its attempt, without explanation, to transmit an offer of reinstatement through the offices of a third party, rather than directly, could only set the stage for the confusion which the record quite clearly indicates was present. The burden of estab- lishing that a valid offer of reinstatement has been made falls on the original wrongdoer and, in this case, we do not believe it can be said that Respondent has satisfied its burden. Accordingly, we agree with the Administrative Law Judge that Giordano's backpay was not tolled until June 5, 1972, as set forth in the specifications. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, Rafaire Refrigera- relationship between Giordano and the Union after the charge in this case was filed, and found that Rivera was not Giordano 's agent for the purpose of receiving a reinstatement offer from Respondent , findings which we have adopted See In. 4 of the Administrative Law Judge's Decision. 3 Rivera did not testify that Raffa instructed him to tell Giordano to go back to work the next day, but rather that point was apparently added by Rivera in his conversation with Giordano. 207 NLRB No. 72 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion Corp., Brooklyn, New York, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order. SUPPLEMENTAL DECISION STATEMENT OF THE CASE DAVID S. DAVIDSON , Administrative Law Judge : On July 13, 1972, the Board issued its unreported Decision and Order finding that Respondent had discriminatorily discharged Nicola Giordano on October 8, 1971, and ordering that he be offered reinstatement and made whole for any loss of earnings suffered by reason of the discrimination against him . Thereafter, Respondent stipu- lated that it had no objection to the Board's Order and that it would comply with its provisions. Controversy having arisen over the amount of backpay due Giordano, on April 30, 1973, the Regional Director for Region 29 issued a backpay specification and notice of hearing, to which Respondent filed an answer. A hearing was held before me at Brooklyn , New York, on May 31 , 1973. At the conclusion of the testimony the parties argued orally. No briefs have been filed. Upon the entire record in the case, including my observation of the witnesses and their demeanor, I make the following: Findings and Conclusions 1. THE ISSUE The sole issue in this case is whether the backpay period for Giordano should be tolled on June 5, 1972, as contended by the General Counsel, or on March 9, 1972, when Respondent contends that an effective offer of reinstatement was made to Giordano to which he failed to reply. H. THE ALLEGED OFFER OF REINSTATEMENT The sole testimony as to the alleged offer of reinstate- ment to Giordano in March 1972 was that of Jose Rivera, assistant business representative of United Brotherhood of Carpenters, Local Union 1536, which has a collective- bargaining agreement with Respondent. Giordano did not appear at the hearing because of illness, and on the advice of Giordano's physician, no request was made to take his deposition or to seek postponement so as to obtain testimony at a later date.' Rivera testified that a week or two after February 25, 1972, the date of the original hearing on the complaint in this case, Rivera made a routine visit to Respondent's shop. At that time Charles Raffa, an owner of Respondent, I An affidavit taken by the General Counsel from Giordano was rejected in evidence. 2 Rivera initially testified that he told Giordano to go back to work as soon as possible and did not state a particular time for Giordano to report. He then testified that he imagined that when he tells a man to report to work it means the next day in accord with normal practice when he refers a man to a job. Still later he testified that he told Giordano "to go back to work the next day, and that was about it." 3 J. H. Rutter-Rex Manufacturing Company, 158 NLRB 1414, 1524, enfd. as modified 399 F.2d 356 (C.A. 5, 1968), modification reversed 396 U.S. 258 (1969). asked him "to get a hold of Nick Giordano, because he wanted him back to work." Raffa did not tell him there were any conditions attached to Giordano's return. Rivera asked another employee in the shop to contact Giordano and have him call Rivera at his office. A day or two later, Giordano telephoned Rivera. Rivera concededly did not recall his entire conversation with Giordano and did not recall the exact words used by either of them. Rivera did not recall whether he told Giordano that Raffa had told him to call. He testified that he told Giordano that he guessed Raffa finally realized that he was a good man and instructed Giordano to go back to work at Rafaire the next day.2 Rivera initially testified that he did not think that Giordano made any response after he told him to go back to work, but then testified that Giordano made a remark which he could not remember from which Rivera concluded that Giordano understood what he had said. Rivera did not say anything about what Giordano's pay or seniority rights would be. The only other evidence offered was the testimony of Respondent's counsel that at the time of the hearing he recommended that Respondent offer to "rehire" Giordano to reduce any possible backpay liability, that in early March he repeated the recommendation in a letter to Raffa, and that after he received the original Decision in this case he orally advised Raffa to send Giordano a letter immediately offering to rehire him. III. CONCLUDING FINDINGS The obligation of the Respondent was to offer Giordano "reinstatement to his former job, or, if that job no longer exists, to a substantially equivalent position without prejudice to his seniority and other rights and privileges, previously enjoyed." In this proceeding the burden is on Respondent to show that a good faith effort was made to communicate such an offer to Giordano before the June 5, 1972, date, set forth in the backpay specification.3 Initially it is necessary to consider whom Rivera represented when Raffa spoke to him and when Rivera spoke to Giordano. As the Union was the contractual representative of Respondent's employees in the unit in which Giordano formerly worked, the possibility exists that Rivera was Giordano's agent for purposes of receiving a reinstatement offer from Respondent. However, the original Decision shows that Giordano was discharged for taking a complaint about his pay to the Union and that the Union showed little disposition to pursue satisfaction of Giordano's rights after his discharge .4 There is no indication of any continuing relationship between Giorda- no and the Union after the charge in this case was filed. I 4 When Giordano complained to the Union about his discharge, its Representative Geffen discussed it with management , communicated to Giordano an offer of $ 150 in settlement of all of Giordano's claims, and refused to take his discharge to arbitration when Giordano initially said that he wanted to reject the offer . The charge in this case was filed by Giordano as an individual . The original Decision in this case shows that the reasons advanced by Respondent to justify Giordano's discharge were devoid of substance. RAFAIRE REFRIGERATION CORP. 525 find that Rivera was not Giordano's agent for purposes of receiving a reinstatement offer from Respondent .5 It is clear, however, that Rivera acted at Raffa's specific request and was Respondent's-agent for that purpose.6 To the extent that Rivera's testimony is clear, it appears that he told Giordano fo report back to work the next day, and did not indicate the terms or conditions under which Giordano would be reemployed. While the failure of an offer to specify reinstatement with all former rights and privileges does not render it fatally defective,7 a valid offer of reinstatement must afford a discriminatee a reasonable time to consider whether to return to Respondent's employ, how he is to get there, and what he is likely to face when he returns .8 Rivera's instruction to Giordano that he would have to report to work on the next day did not afford Giordano a reasonable time for that purpose and was not a valid offer of reinstatement for purposes of tolling backpay.9 Accordingly, I find that Giordano's backpay was not tolled until June 5, 1972, as set forth in the specificatlon.10 I conclude that Giordano is entitled to backpay in the amount set forth in the specification, as amended at the hearing, with interest at the rate of 6 percent per annum computed in the manner set forth in Isis Plumbing & Heating Co., 136 NLRB 716. On the basis of the foregoing findings of fact, conclu- sions, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 11 Respondent, Rafaire Refrigeration Corp., its officers, agents, successors, and assigns, shall make Nicola Giorda- no whole by payment. to him of the amount of $4,499.75, plus interest less any deductions required by state and Federal law. 5 Compare Lipman Bros., Inc, 164 NLRB 850, 851. 6 The General Counsel contends that because Rivera did not recall whether he told Giordano that he was calling at Raffa's request, there was no reason for Giordano to believe that Rivera was calling for Raffa. However, hazy as Rivera's testimony was, it appears that he told Giordano that Raffa wanted him back, and Giordano knew of Rivera's and the Union's status. From these facts, Giordano had sufficient reason to believe that Rivera was calling for Raffa. 4 Eastern Die Company, 142 NLRB 601, 604; American Enterprises, Inc., 200 NLRB 26. 8 Southern Household Products Company, Inc., 203 NLRB No. 138. 9 Betts Baking Company, 173 NLRB 1018, enfd. as modified 428 F.2d 156 (C.A 10, 1970), and cases cited therein. While the courts in Betts and in other cases cited therein have taken the view that the reasonableness of the reporting time depends upon the totality of the circumstances surrounding the offer and the employee's response thereto, the Board does not appear to have adopted that view. In any event, Rivera's vague and inconsistent testimony as to Giordano's response, coupled with Giordano's unavailabili- ty to testify because of illness, leaves the record entirely in the dark as to how Giordano responded to Rivera's communication of the offer. When it is recalled that Respondent had greeted Giordano's complaint through the Union with only a monetary offer to settle both his complaint over his pay and his discharge, that the Union had offered Giordano no support when he sought arbitration of his discharge, and that only a week or two earlier Respondent had contended in the original hearing in this case that Giordano was discharged for cause, the short time allowed Giordano to digest Respondent's reversal in form and to report for work was clearly unreasonable. is 1 have noted Respondent's contention that Respondent's June 2, 1972, letter offering to rehire Giordano did not differ in substance from the message conveyed to Giordano by Rivera in March but was seemingly accepted by the General Counsel as an adequate offer of reinstatement to toll backpay. However, the adequacy of that offer was not in issue and was not litigated. Apart from other facts which may have been uncovered in investigation and not presented at the hearing, the fact that the letter came directly from Raffa after the original decision in this case and gave Giordano the option to report immediately or to contact Raffa distinguishes it from the offer described by Rivera in his testimony. ii In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 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.