Containair Systems Corp.

National Labor Relations Board - Board Decisions

Jun 26, 1975

218 N.L.R.B. 956 (N.L.R.B. 1975)

956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Containair Systems Corporation and Local 295,
affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America. Case 29-CA-3770
June 26, 1975,
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
On February 13, 1975, Administrative Law Judge
Sidney J. Barban issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief, and the General
Counsel filed a brief in support of the Administrative
Law Judge's Decision.
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 and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
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 the Respondent, Containair
Systems Corporation, Springfield Gardens, New
York, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order.
DECISION
STATEMENT OF THE CASE
SIDNEY J. BARBAN, Administrative Law Judge: This
matter was heard at Brooklyn, New York, on September 12
and 13, 1974 (all dates herein in 1974 unless otherwise
noted), upon a complaint issued on July 3, based on a
charge filed by the above-named Charging Party (herein
the Union) on March 20. At Respondent's request, the
hearing was adjourned on September 13 to afford
Respondent an opportunity to secure certain rebuttal
testimony. On October 1, Respondent advised that it had
no further evidence and agreed to the closing of the record.
By Order dated October 3, the hearing in this matter was
closed. That Order is hereby received into the record as
Administrative Law Judge's Exhibit 1. The complaint
alleges that the above-named Respondent, at the conclu-
sion of a strike of its employees on March 14, refused to
reinstate one of its employees, Richard Barth, to his former
or substantially equivalent position of employment in
violation of Section 8(a)(1) and (3) of the National Labor
Relations Act, as amended. Respondent's answer to the
complaint, as amended at the hearing, denies the commis-
sion of the unfair labor practices alleged, with certain
affirmative defenses considered hereinafter, but admits
allegations of the complaint sufficient to justify the
assertion of jurisdiction under the current standards of the
Board (Respondent, in the course of its manufacturing
operations, in a recent annual period, sold and delivered
from its plant at Springfield Gardens, New York, goods
and materials in interstate commerce of a value in excess of
$50,000), and to support a finding that the Union is a labor
organization within the meaning of the Act.
Upon the entire record in this case,' from observation of
the witnesses and their demeanor, and after due considera-
tion of the briefs filed by the General Counsel and
Respondent, I make the following:
FINDINGS AND CONCLUSIONS
I. ISSUES
-Richard Barth, Respondent's shipping clerk, joined a
strike of Respondent's employees which began on Febru-
ary 22. Since the conclusion of the strike on March 14,
Respondent has not reinstated Barth to employment. As
previously noted, General Counsel contends this violated
the Act. Respondent, however, contends:
(1) That Barth did not make a separate and individual
unconditional offer to return to work after the strike.
Nevertheless, Respondent's answer to the complaint
admits , inter alia, "that on or about March 14, 1974,
Richard Barth asked Respondent about his job status,"
and that on that same date the Union sent Respondent a
telegram asserting that Barth and others had "asked to
return to work" and were refused. The answer also alleges,
in part, "that on or about March 14, 1974, Respondent told
Barth that Respondent and its counsel were presently
reviewing his conduct to determine whether or not
Respondent had any obligation to reinstate him and that it
would inform him of the determination."
(2) That Respondent, by letter in answer to the Union's
telegram of March 14, agreed to take back all striking
employees who applied at the start of business on March
18, except those who had been permanently replaced and
those who had engaged in "acts of misconduct," and that
Barth did not report to the plant on that date or thereafter.
(3) That Barth engaged in acts of misconduct during the
strike, disqualifying him for reinstatement.
(4) That Barth engaged in misconduct in the perfor-
mance of his job prior to the strike, discovered by
Respondent during the strike, for which he would have
been discharged in the normal course of business, and
which justifies Respondent in refusing to reinstate him.
218 NLRB No. 153
1 Errors in the transcript have been noted and corrected except for the
'corrections proposed at p. 149 , 1. 20 and p. 221,1. 16.
CONTAINAIR SYSTEMS CORPORATION 957
II. THE FACTS
A. Introduction
Barth was originally hired by Respondent on August 29,
1972, to do assembly work. He began performing duties of
the shipping clerk about October 1973 (though probably
not on an exclusive basis until later). Those duties included
preparing bills of lading, calling carriers to pick up goods
for customers, loading and unloading trucks, and returning
proper paperwork to the office so that the customer would
be billed. The details of this shipping ,and billing process
are important to understanding the nature of Respondent's
defense.
Respondent makes containers used by airlines and other
freight forwarders. When an order is received from a
customer, office clericals make up a multicopy invoice
form. One copy, colored orange, serves as a production
request and later as a packing list. Another copy, colored
green, is placed in a tray on the billing clerk's desk. Other
copies apparently go into customer files. When production
of the order is complete, the shipping clerk gets the orange
copy from the office. He then makes out a multicopy bill of
lading form and calls the carrier to come pick up the
product. At that time the name of the carrier and the date
the carrier is called are placed on the bill of lading. When
the product is loaded, the carrier's driver or other agent
signs the copies of the bill of lading, usually with a stamp
and initials . The shipping clerk likewise initials these forms.
One copy of the bill of lading, with the orange packing list,
are given to the carrier; two copies of the bill of lading are
brought into the office by the shipping clerk the day the
shipment is made or the next day; and the invoice is dated
and the customer is billed on the day the bill of lading is
brought into the office, or on the following day. The
various copies, including the green invoice, are then filed.
As noted in detail hereinafter, Respondent contends that
Barth did not properly handle this paperwork during the
period immediately prior to the strike.
B. Alleged Strike Misconduct
It appears that union organization among the employees
took place on February 20 and 21. Barth signed a union
authorization card on February 21. Respondent's employ-
ees went out on strike on the morning of February 22 to
secure recognition of the Union. Of a plant complement of
about 30, approximately 20 ceased work that morning. It
appears from Barth's testimony that he was not informed
in advance of the work stoppage, but joined it when he
became aware that the plant employees had gone out.
Barth picketed the plant each working day thereafter
through March 13.
On February 25, 3 days after the start of the strike,
Respondent filed two charges with the Board against the
Union, one (Case 29-CB-1729) asserting that the Union or
its agents were restraining or coercing employees in the
2 It is clear that the Regional Director did not have any evidence which
he considered strike misconduct on Barth 's part. Thus, in the present case,
the Regional Director refused to proceed on the Union's charge that
Respondent had refused to reinstate a number of employees other than
Barth because the Regional Director was convinced that they had engaged
exercise of rights under the Act, and the second (Case 29-
CC-401) asserting that the Union or its agents were
engaging in a secondary boycott for the purpose of
compelling Emery Air Freight Corp. to cease doing
business with Respondent. After investigation, the Region-
al Director of the Board, on March 6, issued a consolidated
complaint against the Union, alleging that the Union had
caused employees of Emery to cease handling Respon-
dent's products to compel Emery to stop doing business
with Respondent, and also alleging that certain named
employees (not including Barth), and others not named,
had threatened bodily harm to nonstriking employees and
damage to Respondent's property.2 Thereafter, the Region-
al Director, over Respondent's objection, approved a
settlement of the complaint against the Union. The
proposed settlement was submitted to Respondent for
agreement some time after March 12. Respondent objected
to the settlement by letter dated March 18. It was approved
by the Regional Director, with some alterations, after that
date. Respondent has since appealed this action to the
General Counsel of the Board and to the Board, the
Board's Decision and Order being issued on July 16.
Respondent adduced certain evidence of Barth's activi-
ties during the strike. Respondent's vice president, George
Estrada, testified that he saw Barth speak to about five
truckdrivers who approached the plant, all of whom
refused to pick up or deliver at Respondent's plant.
Estrada did not hear what was said. Barth recalled
speaking to as many as three drivers ("not many more than
that"), explaining that the employees were on strike, and
leaving it to the drivers to decide whether to cross the
picket line. Barth recalled one who crossed (Estrada
recalled one driver who crossed the line but then refused to
make delivery). Respondent was granted an adjournment,
as noted above, to ascertain and interview the drivers
involved, in order that Respondent might call 'them as
witnesses in respect to these incidents. Respondent later
agreed that the record might be closed without this
testimony.
Estrada testified that Respondent was unable during the
strike to get the carriers it normally called to come to the
plant to pick up or deliver, and Respondent either made
deliveries itself or dropped off shipments at the carriers'
terminals.
On one occasion, Estrada recalled, a lumber truck came
to the plant during the strike and was unable to get to the
loading platform because Barth's car was "a little" in the
driveway. When asked to move his car, Barth did so.
Nevertheless, the lumber truck was unable to unload at the
dock because of the size of the load, and an effort was
made to unload the truck in the middle of the street. At this
point, Estrada asserts, Barth got in the way, stating that he
had as much right in the street as the truck.3 Estrada states
that he told Barth that if the latter did not move his car,
Estrada would call the police, and he went into the office
to do so. When he came out of the office, Barth's car was
moved. The police did not come. The lumber truck was
in disqualifying strike misconduct.
3 Estrada also asserted, without any detail, that Barth was "abusive" on
this occasion. In the absence of specifics, it is inferred that Estrada was
referring to Barth's statement referred to above.
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unloaded. Estrada estimated that the entire incident took
20 to 25 minutes.
Estrada also recalled that in one instance when he and
another employee were taking Respondent's truck to
Emery Air Freight a group of employees in cars, including
Barth, followed the truck to Emery. So far as the record
shows, neither Barth or any of the other employees
engaged in any conduct designed to interfere with
Respondent's delivery. Emery's employees refused to
accept delivery, however. Barth states that on one occasion
in which a truck left Respondent's plant with Estrada
Barth assumed that it was going to Emery, and he says he
then went to Emery by a different route and was at the
Emery premises at the time Respondent's truck was there.
Barth admits that he also did this on another occasion. It is
not necessary to the resolution of the issues to determine
whether Barth actually followed Respondent's truck or
proceeded by a different route on these occasions.
C. Alleged Misconduct on the Job
In general, Respondent contends that, during the strike,
it discovered that Barth had been very negligent in
handling his duties prior to February 22, the date of the
strike, in that either goods had not been shipped which
were ready or bills of lading were not brought into- the
office for materials that had been shipped so that the
customer could be billed.
Estrada testified that, during the week before the strike,
about four to six customers whose names he did not recall
called to complain of nondelivery of goods which had been
ordered. (Mandell estimated, on cross-examination, that
Respondent ordinarily received about three such calls a
week.) Estrada states that he then went to Barth, who could
not find material on these orders among the paperwork on
his desk, and said that the shipments "should have gone
out." Estrada asserts that he was satisfied with this and
made no further investigation.
Office Manager Mandell stated that, about February 26,
she noted an excessive amount of green copies of invoices
accumulated in the billing clerk's tray. Since she under-
stood that production was "up to schedule," she asserts she
couldn't understand this accumulation, which indicated
that shipments had not been made. This was brought to
Estrada's attention4 and he went to Barth's office, where
he states he discovered three or four bills of lading, which
he took into the office to be processed.5 Three bills of
lading which Estrada found on Barth's desk at this time
were placed in evidence. These were processed by
Respondent about February 26, being delivered by
Respondent's truck to the carrier or to the customer. One
of these bills of lading, involving a consignment to General
Electric, is dated February 8, indicating that Barth had
called the carrier (the original carrier's name is scratched
4 During the strike no specific individual was assigned the duties of the
shipping clerk.
5 Later, on cross-examination, Estrada recalled that, on this occasion, he
also found a number of yellow invoice copies on Barth's desk, which
Estrada states Barth had been given "at the last minute," so that he could
not have made bills of lading for them.
6 When it was suggested to Estrada that in the normal course of
Respondent 's operations the failure of the office to learn of this shipment
out on the form). There is no explanation as to the failure
of the carrier to make the pickup. The second of these,
involving a consignment to Hodes Daniel, is dated
February 19 (again, the original carrier's name is crossed
out). Since these documents were undoubtedly dated when
Barth called the carrier, it is possible that, when the carrier
arrived, the picket line had been established. The third bill
of lading, involving Wilson Air Freight, is also dated
February 19. It does not seem to have had the name of a
carrier inserted, but the record shows that Wilson custom-
arily picked up its orders with its own trucks, which refused
to cross the picket line during the strike.
About February 29, Respondent made a special effort to
deliver an order to a customer in Respondent's own truck,
since the order had been promised for about February 22.
It was discovered that the customer had already received
the order. Estrada states that there was no evidence in the
office papers that the materials had been shipped, so he
went to Barth's office where,he found Barth's copy of the
bill of lading in the proper place, indicating that shipment
had been made on February 21 .6
Mandell also referred briefly, and without any details, to
a customer who assertedly called during the strike to
complain of a damaged container which Respondent had
no record of ever shipping.
Mandell testified that during the last of February and the
first of March an excessive number of calls were received
from customers complaining of nondelivery of materials
ordered.? Neither Mandell nor Estrada could recall the
name of a single customer who called, with the possible
exception of Wilson Air Freight. Estrada states that, when
he became aware of this situation, he went into Barth's
office and began going through his desk. Estrada testified
that he discovered 15 or 20 bills of lading in different parts
of Barth's desk. Estrada states that some of these had been
signed by carriers, showing that the materials had been
picked up; others had not been signed ; some of these
apparently had yellow packing lists attached. Mandell says
that Estrada brought "a fistful" of bills of lading into the
office on this occasion . However, Respondent was unable
to produce any documentation with respect to this group of
papers at the hearing. It is asserted that some were
discarded by a clerical (who did not testify), and others
have been melded into Respondent's records after being
processed for shipment or billing. Respondent's witnesses
thus were unable to identify the names of the customers
involved or the dates the products had been ready for
shipment. However, considering that these asserted calls
came about the second week of the strike, it seems likely
any shipments Barth would have been expected to make
would have been ready about the time the strike occurred.
Barth testified credibly that it was his custom to call the
carrier right after making out the bill of lading, that he had
could reasonably be attributed to the intervention of the strike, Estrada
concurred.
7 Office Manager Mandell at one point estimated 10 to 15 or more calls
per week from customers during this period, at another she referred to 10
calls a day during the same period. Some, or many of these asserted calls,
were said to have been taken by other persons in Respondent 's office who
did not testify or were no longer employed. I have considerable doubt
concerning the accuracy of these and other unsupported estimates given by
Respondent 's witnesses with respect to Barth's asserted delinquencies.
CONTAINAIR SYSTEMS CORPORATION
never been warned or reprimanded about his work for
Respondent, that he had never told Estrada that orders
had gone out when they had not, and that he never
concealed, hid, or buried bills of lading in his desk in any
way.
D. End of the Strike
About 8 a.m., on March 14, approximately six to eight of
the striking employees came into Respondent's main office.
One of the employees, Al Williams, asked Estrada if the
employees could have their jobs back.8 Estrada informed
them that he would have to talk to the his lawyer first and
suggested that they wait outside the plant premises. The
employees (or some of them, including Barth) returned
about 10 a.m., at which time Estrada informed them that
he had not yet contacted his lawyer and requested that the
employees return home and call him back later that day. It
appears that it was understood that the employees would
call individually from their homes. The only two who
testified, Barth and Norman Davis, called separately.
Estrada told Davis to come back to work that afternoon.
Barth was told to come in to the plant the next morning.
Estrada asserts that he told the employees as a group to
call back that evening, and that when Barth called, Estrada
told him to come , in the next morning, "at which time we
were having a meeting with our attorneys and all the
decisions would have been made on everyone."
A number of the employees who had been on strike
assembled at the plant the next morning. They were called
into Estrada's office one at a time. Estrada spoke to Barth
in the presence of Respondent's president, Kupersmit, and
Becker, vice president in charge of marketing. Neither of
the latter testified. Barth testified that, at this meeting,
Estrada told him that Respondent could not take Barth
back to work because "we have charges brought up against
you, so you will have to wait until the hearing comes up."
Barth states that Estrada did not explain what he meant by
that„ ,and Barth thought he was going to be taken to court.
Estrada asserts that, on this occasion, he told Barth, "I
couldn't put hun back to work at the time, he was being
investigated on a few of the incidents that had occurred
during the strike and I would let him know." Estrada states
that, although he did not inform Barth, the incidents he
was referring to were those concerning which he had
previously testified, "particularly some of the problems we
had had with the customers and the bills of lading, the
mixup." As between the two versions, I credit Barth.
Estrada's testimony does not stand up well under analysis.
As to Barth's alleged misconduct on the job before the
inception of the strike, Respondent, on March 15, then
knew what it now claims was the basis for its refusal to
reinstate Barth. There is no evidence that Respondent was
then engaged in, or has thereafter instituted any investiga-
tion of Barth's work performance in addition to the matters
it had already discovered. If Respondent was concerned
merely with Barth's work performance, it might be
On cross-examination, Barth gave the following testimony upon which
Respondent particularly relies: "Q. (Mr. Brand) Did Al Williams ask for
everybody's job together as a group? A. Yes, he did." Just previously, Barth
had slhted that A] Williams "asked for all of us, could we all have our jobs
back."
959
expected that the issue would have been discussed with
Barth on this occasion, on March 15. This did not occur.
On the other hand, Respondent was admittedly motivat-
ed in part by Barth's strike activities (particularly _ his
conversation with drivers at the plant, his involvement with
a delivery by a lumber truck, and his appearance at Emery
Air Freight premises when Respondent's truck was there
during the strike) in denying him reinstatement at the end
of the strike. At the time Respondent apparently still
considered that there would be a hearing on the charges
which it had filed with the Board. I have no doubt that it
was to these proceedings that Estrada had reference in his
conversation with Barth.9
Barth has not heard from Respondent since March 15. In
either April or May, Respondent permanently replaced
Barth. It also appears that, since March 15, Barth has not
returned to Respondent's premises to further seek re-
instatement.
On March 14, the Union sent a telegram to Respondent
asserting that 23 named employees,-including Barth, had
"asked to return to work 3/14/74 at 9 a.m. They were
refused entrance to the premises." Respondent's counsel
replied by letter dated March 15, asserting that the Union
was wrong in its facts and continuing as follows, in
pertinent part:
Seven (7) of the listed employees did come, to
Containair's premises at least one hour after the normal
starting time on March 14, 1974, and _ were told to
return later that day for information pending the
Company's review of when the Company may need any
of them for work and pending the Company's review
with counsel of its obligations to some of them who
either have been permanently replaced or who engaged
in acts of misconduct. None of the seven employees
returned to the Company , that day although the
Company had the necessary information affecting each
of them. Today, two of the seven are back.
... Containair will accept back at work all employ-
ees except those who have been permanently replaced
or who have committed acts of misconduct justifying
Containair in denying them reinstatement. As to
employees permanently replaced, they will be placed
on a preferential hiring list as job openings may
develop. Have employees report to Containair at the
start of business on Monday, March 18 when each will
be told of his individual job status.
III. ANALYSIS AND CONCLUSIONS
Respondent argues that there is no showing that Barth
made an unconditional offer to return to work apart from
the other strikers. I disagree. There is no persuasive
evidence that the strikers offered to come back only as a
group and not individually. Barth' s agreement, on cross-
examination, that the spokesman for the employees "asked
9 In reaching this conclusion I have carefully considered the several
asserted inconsistencies in Barth 's testimony on which Respondent relies in
its brief They are the sort of transparent errors which may be expected of
an`honest witness and do not affect Barth's credibility on this point.
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for everybody's job together as a group" is not to the
contrary. It is manifest from the record as a whole that the
request was for reinstatement of each individual employee.
Respondent's vice president, Estrada, clearly understood
that they were requesting reinstatement individually, and,
in fact, considered them individually.10 At Estrada's
request, Barth individually called on the afternoon of
March 14 to see if he could have his job back. When he
came to the plant the next morning at Estrada's request,
Barth was interviewed individually, and was told, that
Respondent could not take him back because Respondent
had charges against him and that Barth would have ,to
await the outcome of the anticipated hearing. On the basis
of the entire record, it is found that Respondent was aware,
from the morning of March 14 and thereafter, that
unconditional offers to return to work had been made on
behalf of Barth and other individual striking employees,
and that Respondent decided whether to reinstate the
strikers on an individual basis.
Respondent next contends that Barth should have come
to the Respondent's plant on March 18, the date set in
Respondent's letter to the Union as the time when
Respondent would inform the strikers of their status with
Respondent. This is clearly without merit. Barth had
previously been personally refused reinstatement. In the
absence of some personal notification from Respondent
that the situation had changed, he was not required to
engage in what would appear to be a completely futile act.
On the basis of the record considered as a whole, and the
analysis previously made, it is found that Respondent
refused to reinstate Barth because it considered that he had
engaged in disqualifying misconduct during the strike. I
am convinced that Respondent's contention that Barth was
not reinstated because of alleged job misconduct prior to
the strike is an afterthought advanced to support the
decision originally made on the basis of Barth's conduct
during the strike.
Upon consideration of all the evidence, I also find that
Barth's strike activities shown by the record do not rise to
the character of misconduct which would disqualify him
from reinstatement. Though he spoke to several drivers
who approached the picket line (most of whom refused to
pick up or deliver at the plant), it is not shown that he said
anything involving misconduct. While, on one occasion,
Barth slightly, impeded a lumber truck from entering
Respondent's, driveway, when asked to move, he did so.
Thereafter, when, on this same occasion, he is said to have
impeded the same truck which was seeking to unload in the
public street, Barth again moved, after some stronger
objection on his part, and the truck, in fact, unloaded. On
another occasion (or two), Barth was physically present at
the premises of one of Respondent's customers at a time
when the customer's employees refused to unload or accept
goods delivered by Respondent's truck. However, it is not
shown that Barth did anything on these occasions other
than, being there at the time. I find nothing to censure in
Barth's conduct in respect to truckdrivers approaching the
plant during the strike, or in his presence at a customer's
1U Estrada states that he advised Barth on March 14 that Respondent
was making individual decisions on each of the strikers. This is confirmed in
Respondent counsel's letter of March 18. Respondent's answer to the
plant when Respondent's truck was there, where nothing
more is shown. At the most, Barth's conduct with respect
to the lumber truck may constitute a single incident of
impulsive minor misconduct of a character which, the
Board and the Courts have customarily found not to be
disqualifying for reinstatement. See, e.g., Coronet Casuals,
Inc., 207 NLRB 304 (1973), and cases cited therein.
For the reasons stated, and on the record considered as a
whole, it is found that Respondent, by refusing and failing
to reinstate Richard Barth upon his unconditional offer to
return to work on March 14, interfered with, restrained,
and coerced employees in the exercise of their rights under
Section 7 of the Act, and discouraged membership in a
labor organization by discrimination in regard to employ-
ment of an employee, in violation of Section 8(a)(1) and (3)
of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the
meaning of Section-2(5) of the Act.
3. By failing and refusing to reinstate Richard Barth
within 5 days after his unconditional offer to return to
work made on March 14, 1974, Respondent violated
Section 8(a)(1) and (3) of the Act, which unfair labor
practices affect commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
It having been found that the Respondent has engaged in
unfair labor practices in violation of Section 8(a)(l)"and (3)
of the Act, it will be recommended that the Respondent
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
It having been found that Respondent unlawfully
refused and failed to reinstate Richard Barth within 5 days
after March 14, 1974, it will be recommended that
Respondent offer Richard Barth immediate reinstatement
to his former job or, if such job no longer exists, to a
substantially equivalent job, without loss of seniority or
other rights or privileges, discharging if necessary any
replacements hired, and make him whole for any loss of
earnings he may have suffered by payment of a sum of
money equal to the amount he normally would have
earned as wages during the period from March 19, 1974, to
the date of Respondent's offer of reinstatement, less his net
earnings during that period, in accordance with the
Board's formula set forth in F. W. Woolworth Company, 90
NLRB 289 (1950), with interest thereon at the rate of 6
percent per annum, as set forth in Isis Plumbing & Heating
Co., 138 NLRB 716 (1962).
Upon the foregoing fmdings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I issue the following recommended:
complaint admits "that on or about March 14, 1974, Richard Barth asked
Respondent about his job status. "
CONTAINAIR SYSTEMS CORPORATION 961
ORDER"
The Respondent, Containair Systems Corporation,
Springfield Gardens, New York, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to reinstate, or otherwise terminating, its
employees for engaging in the exercise of rights guaranteed
by Section 7 of the Act.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which will
effectuate the purposes of the Act:
(a) Offer Richard Barth immediate and full reinstate-
ment to his former job or, if that job no longer exists, to a
substantially equivalent job, without loss of seniority or
other rights or privileges, discharging if necessary any
replacements, and make him whole for any loss of earnings
he may have suffered by reason of Respondent's refusal to
reinstate him, in accordance with the provisions of the
section entitled "The Remedy," above.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all records necessary to
analyze the amount of backpay due under the terms of this
recommended Order.
(c) Post at its operations at Springfield Gardens, New
York, copies of the attached notice marked "Appendix." 12
Copies of said notice, on forms provided by the Regional
Director for Region 29, after being duly signed by
Respondent's authorized representative, shall be posted by
it immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to ensure that said notices are not altered,
defaced, or covered by any material.
(d) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
11 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in See.
102.46 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.
12 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 read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcmg an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act, as amended, states
that employees have the right:
To self-organization, to form, join, or assist
labor organizations
To bargain collectively through representa-
tives of their own choosing
To engage in other concerted activities for the
purpose of collective bargaining or other mutual
aid or protection
To refrain from any or all such activities
except to the extent that this may be affected by a
lawful bargaining agreement requiring member-
ship in a labor union as a condition of employ-
ment.
WE WILL NOT refuse to reinstate, or otherwise
terminate employees for engaging in the exercise of
rights guaranteed by the National Labor Relations Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed by the Act.
WE WILL offer Richard Barth immediate and full
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent job, without loss of
seniority or other rights or privileges, discharging if
necessary any replacements hired, and wE WILL make
Richard Barth whole for any loss of earnings he may
have suffered by reason of the Company's refusal to
reinstate him at the end of the strike, in accordance
with the Order of the National Labor Relations Board.
CONTAINAIR SYSTEMS
CORPORATION