Lorenz & Sons, Inc.

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."