Roosevelt Roofing and Sheet Metal Works, Inc.

National Labor Relations Board - Board Decisions

Jun 29, 1973

204 N.L.R.B. 671 (N.L.R.B. 1973)

ROOSEVELT ROOFING
Roosevelt Roofing and Sheet Metal Works, Inc. and
Local 275, Maintenance Employees Union of Great-
er New York (Ind.). Case 29-CA-2861
June 29, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
PENELLO
On February 23, 1973, Administrative Law Judge
Stanley N . Ohlbaum issued the attached Decision in
this proceeding . Thereafter , the Respondent filed ex-
ceptions 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 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
below:
THE REMEDY
The Administrative Law Judge, inter alia, recom-
mended backpay for striking employees Butler John-
son, Philip Macken, and Patrick Roche from the date
of their discharge not withstanding they never re-
quested reinstatement. We disagree. These employees
were on strike at the time they were discharged. As
they had not abandoned the strike and applied for
reinstatement, we can see no justification for award-
ing them backpay while they were withholding their
services irrespective of the fact that they were dis-
charged. We shall, therefore, apply our usual remedy
where employees are unlawfully discharged while on
strike. Accordingly, we hereby modify the Adminis-
trative Law Judge's remedy and recommended Order
by limiting the period of backpay to run 5 days from
the date of these employees' unconditional applica-
tion for reinstatement to the date of the Respondent's
offer of reinstatement.'
ORDER
Pursuant to Section 10(c) of the National Labor
1 See, e .g , Arttm Transportation, System, Inc., 166 NLRB 795, and Sea-Way
Distributing, Inc., 143 NLRB 460.
671
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that the Respondent, Roose-
velt Roofing and Sheet Metal Works, Inc., Brooklyn,
New York, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order, as so modified:
1. Delete paragraph 2(a) and substitute in lieu
thereof the following:
"(a) Offer to Dennis Grech immediate and full re-
instatement to his former job or, if that job no longer
exists , to a substantially equivalent position, without
prejudice to his seniority or other rights and privileg-
es, and make him whole for any loss of earnings or
other monetary loss suffered by him in the manner set
forth in the section of the Administrative Law Judge's
Decision entitled 'Remedy."'
2. Delete paragraph 2(b) and substitute in lieu
thereof the following:
"(b) Offer to Butler Johnson, Philip Macken, and
Patrick Roche immediate and full reinstatement to
their former jobs or, if those jobs no longer exists, to
substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, dis-
missing, if necessary, any employee hired subsequent
to the day the strike began, in the manner set forth in
the section of the Administrative Law Judge's Deci-
sion entitled "Remedy," as modified herein, and
make them whole for any losses they may have suf-
fered as a result of any failure to reinstate them begin-
ning 5 days after any prior request for their
reinstatement and continuing until the date of their
reinstatement."
3. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges violations of the Act not
specifically found.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial before an Administrative Law Judge,
at which all sides had the opportunity to present their
side of the case, it has been decided that Roosevelt
Roofing and Sheet Metal Works, Inc., violated the
National Labor Relations Act. We have been ordered
to post this notice and to carry out its terms.
The National Labor Relations Act guarantees to
employees the right to join unions, to help unions, to
204 NLRB No. 110
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargain collectively through representatives of their
own choice, to act collectively with other employees
in bargaining with employers, and to be free from
interference, restraint, coercion, or threat because of
the exercise of any of those rights or any other rights
under the Act. The Act also guarantees employees the
right to refrain from exercising those rights, if they so
chose. It is up to the employees themselves, without
interference from their employer or anybody else.
WE WILL NOT violate any of your rights listed
above.
WE WILL NOT interrogate you, in violation of the
Act, about your or any other employees' union
membership, desires, or activities.
WE WILL NOT create the impression among you
that your union activities are under our surveil-
lance for the purpose of discouraging them.
WE WILL NOT threaten you with harmful eco-
nomic consequences such as closing down the
shop or discontinuing our business if you join or
remain members of or help the Union, or if the
shop becomes unionized.
WE WILL NOT discharge, suspend, or refuse or
fail to reinstate or hire or rehire any employee
because he wants to bargain with us collectively,
or because he exercises any right under the Na-
tional Labor Relations Act, as amended.
WE WILL offer to Dennis Grech immediate and
full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent po-
sition, without prejudice to his seniority and
other rights and privileges previously enjoyed,
and make him whole for any loss of pay suffered
by reason of his termination.
WE WILL offer immediate and full reinstate-
ment to employees Butler Johnson, Philip Mack-
en, and Patrick Roche to their former jobs or, if
such jobs no longer exists, to substantially equiv-
alent positions , without prejudice to their seniori-
ty or other rights and privileges, dismissing if
necessary any employee hired subsequent to the
day the strike began, and make them whole for
any losses they may have suffered as a result of
our failure to reinstate them beginning 5 days
after any prior request for their reinstatement
and continuing until the date of their reinstate-
ment.
Dated By
ROOSEVELT ROOFING AND
SHEET METAL WORKS, INC.
(Employer)
This is an official notice and must not be defaced
by anyone.
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.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 16 Court Street, 4th Floor, Brooklyn,
New York 11201, Telephone 212-596-3535.
DECISION
STANLEY N. OHLBAUM, Administrative Law Judge: Based
upon a charge filed on May 1, 1972,' resulting in a com-
plaint issued on July 28 by the Board 's Regional Director
for Region 29, the above-entitled proceeding under the Na-
tional Labor Relations Act, as amended, 29 U.S.C. Sec. 151,
et seq. (Act), came on for hearing before me in Brooklyn,
New York, on November 27-28, with all parties participat-
ing and represented throughout and afforded full opportu-
nity to adduce testimonial and documentary proof,
cross-examine , propose findings and conclusions , argue or-
ally, and file briefs.
The issues presented are whether, in violation of Section
8(a)(l) of the Act, Respondent in various ways (interroga-
tion, creation of the impression of surveillance of its em-
ployees' protected concerted activities , warnings to desist
therefrom, and economic threats ) interfered with its em-
ployees' rights under Section 7 of the Act, and whether, in
contravention of Section 8(a)(3) and ( 1), Respondent dis-
charged and has failed to reinstate and reemploy certain
employees for exercising their rights under the Act .2
All evidence and contentions , including briefs received
on January 11, 1973 (time for filing thereof having been
extended on application), having been fully considered,
upon the entire record 3 and my observation of the testimo-
nial demeanor of the witnesses , I make the following:
FINDINGS AND CONCLUSIONS
I PARTIES JURISDICTION
At all material times, Respondent Roosevelt Roofing and
Sheet Metal Works, Inc. (Employer), has been and is a New
York corporation with principal office and place of business
in Woodside , Queens County, city and State of New York,
engaged in the roofing , sheet metal , and construction work
business and in the supplying of services related thereto. In
the course and conduct of those business operations during
the representative year preceding issuance of the complaint,
Respondent performed such business services valued in ex-
cess of $50,000 for various commercial customers, each of
All unspecified years herein are 1972
2 Four employees-Johnson, Macken , Roche, and Lopez-were allegedly
discharged for engaging in a protected strike, a fifth -Charles Velsor- -was
dropped from the complaint upon application of General Counsel at the
hearing . A sixth-Grech-was allegedly denied reemployment because he
had engaged in other protected concerted activites.
3 Trial transcript as corrected in respect to typographical and obvious
(Representative) (Title) errors listed in Appendix A [omitted from publication]
ROOSEVELT ROOFING
whom annually produces and ships goods or performs serv-
ices in interstate commerce valued at over $50,000.
I find that at all material times Respondent has been and
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7), and the Union is a labor organiza-
tion within the meaning of Section 2(5), of the Act; and that
jurisdiction is properly asserted here.
11 ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. Respondent 's business and personnel
Respondent is engaged in the roofing and sheet metal
construction , improvement , and repair business . It does job
shop contracting, roofing and sheetmetal and iron work,
waterproofing , carpentry , and insulation , almost entirely
through its own employees , but with sporadic subcontract-
ing. Its business is generated primarily through advertising
followed by job estimates . Required shopwork, such as met-
al design and cutting , is done in its shop in Woodside,
Queens County , New York City, with simpler work (such as
gutters) assigned to sheetmetal workers not as experienced
or as accomplished as those who cut out more complex work
(such as skylights).
Respondent's principal and president is Morton Kessel.
His wife Pearl , the vice president , assists occasionally with
bookkeeping and office work . Until September 1972 (in-
cluding the times here material), Rose Albin was secretary
and the office administrator or administrative clerk who did
the typing including typing of job estimates given to her,
and who in the absence of Kessel and John Herdeg (dis-
cussed below) sometimes distributed the job assignments to
rank-and-file employees . Most job estimates (i.e., estimated
prices to potential customers)-60 percent according to
Kessel-are handled by Kessel , with the remaining 40 per-
cent handled by Herdeg and "Smiley " (the latter Ismael
Mustafa , a sheetmetal worker -roofer). According to Her-
deg, Kessel makes the roofing job assignments to the work-
crews , while Herdeg concentrates on sheetmetal projects
(although he is sometimes also involved in roofing projects);
the same rank-and-file workmen do not do both jobs. At the
time of the strike and discharges to be described (April
12-13), Respondent seemingly ° had 12-15 employees in all.
2. Supervisory status of John Wesley Herdeg
The complaint alleges, but Respondent denies, that John
W. Herdeg has been a supervisor and agent of Respondent.
The proof, including testimony of Respondent's president,
Kessel, himself, as well as that of Herdeg, clearly establishes
Herdeg's supervisory and agency status within the meaning
of the Act. In this connection, at the outset it is well to bear
in mind that the Act's definition of supervisor (Sec. 2(11))
is cast in the disjunctive, and that its definition of agent
(Sec. 2(13)) is explicityly disassociated from the rigidity of
common-law concepts.
° Uncontradicted testimony of Respondent's employee, Butler Johnson.
673
Credited testimony of Respondent's employee Butler
Johnson shows that work has been assigned to him regularly
by Herdeg, who is also Respondent's job estimator, and
who in Kessel's absence is "in charge"-"It was made plain
[by] Mr. Kessel"-and (at least in Kessel's absence) gives
employees orders which they obey without question. These
are central hallmarks of supervisory authority. When John-
son was hired, he was told by Kessel that Herdeg was the
"foreman." Herdeg also gave employees time off for ab-
sences; and, unlike other employees, he only occasionally
did manual work, did work, did not punch the timeclock,
and had a desk in the office. Herdeg visited and inspected
(as did Kessel) the work of employees in the field, and
evaluated and criticized their job performance. He gave and
they followed his orders. The testimony of Respondent's
former employees, Dennis Grech and Gorky Lopez, con-
firms that in Kessel's absence work assignments were made
by Herdeg. When Lopez was hired, he was expressly in-
structed by Kessel that in Kessel's absence Lopez was to do
what Herdeg told him; in Kessel's absence, Grech and Lo-
pez were also given time off by Herdeg.
Although the foregoing credited testimony is itself suffi-
cient to show the supervisory status of Herdeg under the
Act, testimony of Herdeg himself as well as that of Respon-
dent President Kessel establishes it, as well as Herdeg's
agency status, to a virtual certainty. Thus, Herdeg testified
that he has been in Respondent's service for about 15 years;
he has a weekly take-home pay of almost $300, on a weekly
salary basis (Kessel testified that Herdeg grosses around
$400 per week, whereas the next highest-paid employee,
"Smiley" Mustafa, is paid on an hourly basis of about $6.25
per hour); when Kessel is away-at times for as long as 2
weeks-Herdeg is in charge and makes the necessary deci-
sions; in Kessel's absence Herdeg give men permission to be
away from their jobs; he (Herdeg) oversees the work, pri-
marily on sheetmetal, of the men in the field; he (Herdeg)
tells the men what to do and they do it; and he corrects their
mistakes and they comply. Further according to his own
testimony, Herdeg on occasion recommends men for cer-
tain jobs and Kessel follows his recommendations (although
he was allegedly never recommended that anyone be hired
or fired); and he also has power to order merchandise in his
own judgment-and thereby to commit the credit of the
Company-when occasion demands. Although Herdeg
oversees the work of employees on field jobs, he also occa-
sionally does some physical work himself. However, even
when sheetmetal work is to be done in the shop, barring
emergency, it is done by sheetmetal workers there and not
by Herdeg-the existence of an "emergency" being decided
by Herdeg in his own judgment and discretion. If Herdeg
observes a man to be "goofing off" on a job, he corrects him
and if necessary reports it to Kessel, although normally
Herdeg "take[s] care" of it himself. Herdeg also changes
men's job assignments on his own. Unlike rank-and-file
employees, Herdeg is entrusted with and uses his own key
to the shop and has access to work records. He is in charge
of all aspects of the safety of the men and their equipment
on the job. Beyond all this, according to his testimony he
spends as much as half his time in the field making price
estimates on jobs, involving meeting and dealing on behalf
of the Company with customers or prospective customers as
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
well as with architects . In making such estimates , Herdeg
takes into consideration Respondent 's cost factors (labor,
merchandise, etc.) plus a percentage override for profit-
seemingly sensitive as well as important and perhaps even
confidential information going to the heart of Respondent's
business as a competitive enterprise.
Respondent President Kessel conceded during his testi-
mony, which was at times highly evasive, that he may have
instructed employees to "see Wes Herdeg," or Rose Albin,
in Kessel's absence ; and that in his (Kessel 's) absence Herdeg
is "authorized to assign work to the men" and gives orders and
employees follow them (with no indication of counterinstruc-
tions , disapproval, or demur by Kessel).
It is clear from the above that , at the times here material,
Herdeg was a supervisor and agent of Respondent within
the meaning of the Act. Among other things, Herdeg was
an "individual having authority , in the interest of [his) em-
ployer, to . . . transfer , suspend . . . assign . . . or disci-
pline other employees, or responsibly to direct them... .
or effectively to recommend such action . . . [ inl the use of
[his] independent judgment" (Act, Sec . 2 (11)), possession of
any of which powers or characteristics would be sufficient.
25 Ann. Rep. 45 (1960); N.L.R.B. v. Elliott-Williams Co., 345
F.2d 460, 463 (C.A. 7, 1965); N.L.R.B. v. City Yellow Cab
Company, 344 F.2d 575, 580 (C.A. 6, 1965). It is possession
of any of the indicated hallmarks of authority, not job title,
which is determinative of supervisory status. N.L.R.B. v.
Southern Bleachery & Print Works, Inc., 257 F.2d 235, 239
(C.A. 4, 1958), cert. denied 359 U.S. 911, (1959). While
Herdeg's supervisory status alone could serve to stamp him
as Respondent's agent, at least in his dealings with its rank-
and-file employees, within the liberalized definition of the
Act (Sec. 2 (13)), his transactions with customers and others,
as shown above , in matters going to the core of its business
operations and presumably involving close access to and
possession of its economic secrets, additionally set him
uniquely apart from the rank-and-file employees and distin-
guish him as its designated trusted agent speaking and act-
ing on its behalf; for either, but particularly for both, of
these reasons Respondent 's rank-and-file employees were
justified to so regard him. Cf. IAM v. N.L.R.B., 311 U.S. 72
80 (1940); N.L.R.B. v. Patent Trader, Inc., 415 F.2d 190, 199
(C.A. 2, 1969).
It is accordingly found that, as alleged in the complaint,
John Wesley Herdeg was at the times here material a super-
visor and agent of Respondent within the meaning of the
Act.
3. Organizational activities
Proof 5 establishes that in 1970 a representative of Local
275 (Charging Party here), in conjunction with an attempt
to organize Respondent 's employees , after speaking to em-
ployees there, was told by Herdeg that the "boss" was away.
Around January 1972, the union representative (Union
President Joseph Goldstein) returned and then and subse-
quently, assisted by several organizers, as a consequence of
S Credited testimony of General Counsel witnesses Johnson , Roche,
unconcealed street discussions and frequent and regular
solicitations and meetings outside of and across the street
from Respondent's premises, as well as in a neighborhood
"pub," through early March, succeeded in enlisting employ-
ees into union membership. Thereafter, on March 10, 1972,
the Union sent Respondent a letter stating it represented a
majority of Respondent's rank-and-file roofers, sheetmetal
workers, and helpers, and that it was "prepared to demon-
strate this majority on request" (G.C. Exh. 6); and requested
a meeting for bargaining purposes. Not hearing from Re-
spondent within the requested period of 3 days, the union
president visited Respondent's premises, where Kessel de-
clined to talk to him. The union president thereupon left
Respondent's premises and on March 16 filed a petition
with the Board's Regional Director requesting an election,
resulting in an informal conference in the latter's office on
April 3.
Accompaniments and sequelae of these events, including
an employees' strike commencing in April, will be described
below. At this point, however, it is sufficient to provide this
backdrop to occurrences to be described, and to note that
Respondent had knowledge of its employees' organizational
activities at least as early as March: called by General
Counsel, Herdeg conceded that he was aware of these orga-
nizational activities among the employees, at any rate in
March-April, at least "surmised by their activity and their
action" who the union adherents or sympathizers were, and
even discussed the matter with employees. Since it is undis-
puted that Kessel had received the Union's written recogni-
tional demand of March 10 and had declined to speak with
the Union's representative on March 13, was thereafter ap-
prised of the filing and processing by the Regional Director
of the Union's election petition, and was directly involved
in the discharge of the employees who went out on strike in
April, he (i.e., Kessel), too, undeniably possessed knowledge
of organizational activities among the employees.
B. Unlawful Interference, Coercion, and Threats
We consider initially whether various alleged actions of
or ascribable to Respondent Employer constituted unlawful
interference, coercion, and threats invasive of rights secured
to its employees by Section 7 of the Act. These are said to
have consisted of interrogation concerning employees' pro-
tected concerted activities; creating the impression that
those activities were under its surveillance; warning em-
ployees to desist from such activities; and making threats of
dire economic consequences to employees if they continued
to engage in such activities.
Proof regarding these matters was provided through testi-
mony of various employees, all of whom were allegedly
discharged (or, in one case, denied job continuance) be-
cause of participation in activities within the Act's protec-
tion.
Credited testimony of Respondent's former employee
Lopez establishes that he signed a union membership card
on the street on March 7, 1972. Thereafter, in the shop, in
the presence of fellow employees-including Johnson,
Grech , Lopez, and Goldstein ; as well as of Respondent's officials, Herdeg 6 The election proceeding is in abeyance pending outcome of the instant
and Kessel . case Cf Tetaurograph Corp, 199 NLRB No 117, JD fn. 4.
ROOSEVELT ROOFING
Macken, and Grech-Herdeg told them that the Union was
no good for them.? Respondent's employee Johnson testi-
fied credibly that after he, too, had signed a union card on
March 6, at 7:45 the following morning (work starts at
7:30), Herdeg announced to Johnson and other employees
that he had heard that the employees had "met with the
Gooks and . . . that if we joined the union the boss is going
to close up the shop." Johnson disavowed any knowledge
concerning the Union. On the same morning-also accord-
ing to Johnson's credited testimony-Respondent President
Kessel and the corporate secretary, Rose Albin, asked John-
son if anybody had "sign[ed] up for the union," and stated
that if they did "Mr. Kessel is going to close up the shop
[and that] he [Kessel] said it and she knew he would close
it up." Johnson made no response. Further corroboration is
afforded by credited testimony of still another witness,
Respondent's employee Dennis Grech, who testified that in
addition to reminding him that "the boss has been good to
you and not to be a fool" and at the same time cautioning
him against the Union and not to become a member, Her-
deg in March warned him also that Kessel would "close the
shop" if employees "sign with the union"; and that, around
the same time, Respondent's secretary Rose Albin also in
the office in Herdeg's presence, showed him some newsclip-
pings allegedly indicating the expulsion of Local 275 from
the Teamsters, urged him on various occasions "not to be
a fool" and not to become a member, and on the day after
he signed a union membership card (March 6) informed
him that she knew who had joined the Union (to which
Grech remained noncommittal). In the same vein, Lopez
also testified that toward the end of March Respondent's
secretary and office manager, Rose Albin (who distributed
some work assignments in Kessel's absence), asked him if
he had joined the Union and he admitted that he had; and
she indicated that work was getting slow and scarce and if
the Union came in Kessel would "close the shop."
According to Johnson's credited testimony, daily after
the aforedescribed March 7 episodes involving Herdeg and
Rose Albin, Herdeg repeatedly warned that if employees
joined the Union Kessel "is going to close up the
shop"-until Johnson and others (as will be described be-
low) went on strike on April 12; also, in early April, Herdeg
asked Johnson who had signed union cards, and told John-
son that Kessel "knew who had signed cards"-to which
Johnson denied knowing who had signed. Also tying in to
like testimony of Lopez which has been recounted, Johnson
similarly testified that in early April-the period when Her-
deg was asking him who had signed union cards, telling him
Kessel knew who, and warning him that Kessel "is going to
close up the shop" in case of unionization-Kessel began
calling attention to a supposed scarcity or absence of
work-contrary to fact, since there were no layoffs (with
one possible exception a month and a half before) and men
continued to be sent out on jobs; also, Kessel suddenly
began picking serious fault with him for 5-minute "lateness-
es" and for taking the accustomed coffee break.
Without specifically disavowing all of the foregoing, Her-
deg attempted to give his statements to the employees a
7 It is not here intended to be suggested that such a statement, standing
alone, would be violative of the Act.
675
different cast or coloration, testifying th.^ t he had cautioned
them to "consider . . . very carefully" the question of union
affiliation since they had "ajob there that would be hard to
beat," and that he did not think they could "better" them-
selves through the Union, although the decision was for
them to make. While reacting generally favorably to Herdeg
as a witness , I was nevertheless also impressed with his
evident strong partisanship toward Respondent. Under the
total circumstances of the case, and comparing testimonial
demeanor of the various witnesses on both sides, I have
difficulty in believing that Herdeg was as restrained and his
expressions to the employees as carefully couched, even-
handed, and judicious as he now asserts. He concedes that
he asked Lopez whether he was a member of the Union and
elicited a denial from Lopez. Herdeg also concedes that he
told the employees that if the Union came in there was the
"possibility it would damage the shop to the extent, proba-
bly, it wouldn't operate any longer" and that "if the place
was organized it could mean closing the shop." But again,
in view of credited testimony of various employees to the
contrary, I have difficulty in accepting as a fact that
Herdeg's assertions were as circumspectly predictive as he
now purports to reconstruct. Rather, I credit the employee
witnesses' composite versions. As has many times been
pointed out, it is hard to conceive of a threat more potent
to employees than that their employer will or may close up
shop-and that they will therefore be thrown out of work-
if they exercise their legal right to unionize or bargain collec-
tively with their employer. See, e.g., N. L. R. B. v. Gissel Pack-
ing Co., 395 U.S. 575, 618, 619-20, (1969); N.L.R.B. v.
Exchange Parts Co., 375 U.S. 405, 409, (1964); Holly Hill
Lumber Company v. N.L.R.B., 380 F.2d 838, 841 (C.A. 4,
1967); N.L.R.B. v. Tru-Line Metal Products Company, 324
F.2d 614, 616 (C.A. 6, 1963), cert. denied 377 U.S. 906,
(1964); N.L.R.B. v. Kingsford, 313 F.2d 826, 832 (C.A. 6,
1963) and cases cited; Components, Inc., 197 NLRB 163;
Oak Manufacturing Company, 141 NLRB 1323, 1325. Al-
though Herdeg took pains at the hearing to suggest that his
statements to the employees were no more than his own
personal opinion, it does not appear that he took any pains
or precautions to point this out to the employees, who in
view of his position and authority were entitled to regard his
expressions and warnings as coming straight from the
horse's mouth. Post facto disavowals of this nature may
justifiably be accorded a degree of skepticism, as may also
his current averrals that he made no reports to Kessel con-
cerning his discoveries or surmises regarding the employees'
union affiliations . Cf., e.g., N. L. R. B. v. E.D.S. Service Corp.,
466 F.2d 157 (C.A. 9, 1972); United Aircraft Corporation v.
N. L. R. B., 440 F.2d 85, 92 (C.A. 2, 1971).
As for the remarks ascribed to Respondent's secretary,
Rose Albin, they stand undisputed in the record. While her
failure to appear and testify at the trial was satisfactorily
explained and I therefore draw no unfavorable inference
therefrom, it nevertheless does not follow that the employ-
ees' testimony concerning her may not be credited.
So far as Kessel is concerned, a partial answer to his
broad denials that he engaged in coercive or similar expres-
sions to employees is that he is not testimonially charged
with any other than stating to Johnson in early April that
work was getting scarce or unobtainable. His denials as to
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the latter are unconvincing upon the record presented.8 His
denials of authority in Herdeg to speak for the Company are
not only realistically unconvincing but they involve in large
part legal opinions or conclusions , since, as has been indi-
cated, the employees were justified in relying on Herdeg's
apparent if not express authority and in regarding and
reacting to his words as at least reliable if not utterly direct
gospel from the fountainhead itself. Employers-no more
than unions-may not enjoy the supposed advantages of
actions by subordinates in their interest, and then blithely
shuck off responsibility if they backfire. Furthermore, in a
shop as small as and with employees as closely policed by
Kessel as he now indicates, it is unlikely that he was igno-
rant of what was going on. And Kessel's concession that, far
from any scarcity, there was much work to be done, with
employees even working overtime, during the period in
question, and that he had no intention of closing the shop
in event of unionization, if anything makes the dire words
issuing from those fonts of authority-his office and top
representatives-even more sinister since they were plainly
untrue and therefore either wholly irresponsible or deliber-
ately coercive. The same may be said for Kessel's denial that
he personally kept watch over employees' union activities,
since Respondent may have done so-and in fact did so-
through others (Herdeg and Albin) for whose actions it may
be charged. Cf., e.g., N.L.R.B. v. Speed Queen, a Division of
McGraw-Edison Co., 469 F.2d 189 (C.A. 8, 1972); Marland
One-Way Clutch Co., Inc., 200 NLRB No. 48.
Upon the entire record presented, it is found that Respon-
dent at various times during March and April 1972 interro-
gated employees concerning their and other employees'
union membership ; created the impression among its em-
ployees and gave them to understand that their union and
protected concerted activities were under Respondent's sur-
veillance; and threatened its employees with harmful eco-
nomic consequences including the shutdown of its plant in
the event they continued to engage in protected concerted
activity through union membership or affiliation.
C. Discharging and Failing to Reinstate
Employees Johnson, Macken, Roche, and Lopez
for Engaging in Protected Concerted Activities
1. Johnson, Macken, and Roche
The Union's recognitional demand of March 10,
Respondent's failure to respond thereto, Respondent's re-
fusal to meet with the Union or talk with its representative
on March 13, the Union's election petition of March 16 and
the ensuing conference in the Board 's Regional Office on
April 3, as well as the accompanying episodes comprising
Respondent's violations of Section 8(a)(1) as found, have
already been described.
Against this background and Respondent's continuing
8 It is noted that (in an unrelated connection) Kessel at the hearing at-
temped to explain inconsistencies between his testimony and his pretrial
affidavit by claiming he did not correct his affidavit "too carefully" before
swearing to it, although conceding that he as well as his counsel had read it
over and that he had made changes in it before signing and swearing to it
in the presence of his counsel This attempted evasion casts a pall over his
credibility
refusal to deal with or even talk to their designated represen-
tative, at 7 a.m. (the beginning of the workday) on April 12,
1972, three of Respondent's employees-Butler Johnson,
Philip Macken, and Patrick Roche-went out on strike in
protest and commenced picketing. A fifth employee, Gorky
Lopez, allegedly joined the strike on or subsequent to April
13.
When Respondent President Kessel arrived at the shop
on April 12 and observed the picketing employees, he invit-
ed them "in to work" and stated to them, "[We have] plenty
of work for [you]." Johnson, however, told him they were
"on strike." Although the picket signs did not state what the
employees were striking for but merely that they were "on
strike," Johnson told Kessel and Herdeg on April 12 that
the employees were striking "because we wanted a union
shop." When Kessel asked Roche "why [you are] not work-
ing," Roche likewise replied that there was a strike on. In
a pretrial affidavit furnished by him, in the presence of his
attorney, to the Board, Kessel swore: "At the time I saw
Johnson on the picket line on April 12 I told him that if he
did not report to work immediately we would consider him
discharged." At the hearing, Kessel conceded that he there
further swore that he also told picketing employees Macken
and Roche substantially the same thing."
The picketing continued throughout that day (April 12).
On the next day, April 13 (Thursday), it rained so hard that
the pickets remained seated outside in a car or cars. Since
it was payday, the picketing employees' representative,
Union President Goldstein-who had joined the pickets the
day before-asked Kessel for the employees' paychecks.
Kessel, however, refused, stating that he would pay the
employees personally and individually. At no time then or
since (or before) then has Kessel acknowledged the Union
to be the representative of any of the employees for any
purpose. When the picketing employees Johnson, Macken,
and Roche, therefore, individually went into the office for
their pay, Kessel gave them their paychecks with a bag he
had previously packaged containing their belongings from
their lockers, and told them that if they did not return to
work immediately they would be automatically discharged,
handing each of them a letter, dated that day (April 13,
1972), stating: "This is to confirm our conversation of yes-
terday, April 12, 1972, that if you do not report to work
immediately, you are considered discharged." Prior to his
handing each of these employees this letter, Kessel-ac-
cording to his own testimony-had packaged the contents
of their lockers, consisting of clothes and tools, for them to
pick up with their checks. Kessel had done this- also ac-
cording to his testimony-because they had indicated, in
response to his question of the day before (April 12) as to
whether they wanted to work, that they did not-according
to the employees and as was apparent, because they were on
strike, picketing.
After Kessel's discharge of these employees on April 12,
they continued picketing-Johnson for about 3 months, the
others until they obtained other jobs. It is conceded that at
no time was any of them reinstated, rehired, or offered his
9 Lopez' case is separately considered below.
10 I was not favorably impressed by Kessel 's attempts at the hearing to
evade his sworn statements in his pretrial affidavit, through now attempting
to indicate that he really did not mean what he said in that affidavit
ROOSEVELT ROOFING 677
job back by Respondent . There is no showing or persuasive
evidence that Respondent considered the work perfor-
mance of any of these employees as unsatisfactory or merit-
ing discharge or layoff; indeed , the contrary appears,
among other reasons because of substantial pay increases.
Nor is there any evidence of any lack of work for them, or
indeed any reason whatsoever other than the described
strike , for their discharge . Kessel conceded at the hearing
that at the time of the discharge there was "quite a bit" of
"work available for these men to do"-"April is a busy
time ." Beyond this , Respondent has stipulated on the record
that on or after April 13, 1972, Respondent hired at least
five employees who performed work of the same nature as
that performed by the employees in question , and who per-
formed the same duties that would have been performed by
the discharged employees had the latter continued to be
employed on and after April 12. And during cross-examina-
tion Kessel conceded that if Johnson , Macken , and Roche
had stopped picketing and returned to work on April 13,
they would have been allowed to return to work and had
their jobs back.
Upon these facts, it is Respondent 's contention, as ex-
pressed by Kessel at the hearing, that it did not discharge
the picketing employees but that they "withdrew" from its
employ by reason of their April 12- 13 strike activity, picket-
ing, and refusal to return to work at Kessel's behest. Upon
the facts presented , I find that it is entirely clear that the
employees in question were discharged by Kessel on April
12 because of their strike activity and picketing and refusal
to abandon the same by returning to work on Kessel's April
12 demand or request.
After 37 years under the Act and 200 volumes of Board
reported decisions , it should be unnecessary to point out
that it is unlawful for an employer to discharge employees
because they choose to exercise their rights under the Act.
Yet it is precisely this action-summary discharge of em-
ployees for exercising their right to engage in concerted
activities , secured to them under the Act-which Respon-
dent here defends . The cases reiterating the illegality of
discharge for this reason are so numerous and supposedly
so clear and generally well understood by this time , that it
is to be doubted that further reiteration here could serve any
useful educational purpose. There comes a time when the
obvious need no longer be belabored . Cf., e.g., N.L.R.B. v.
Washington Aluminum Company, 370 U.S. 9, 17 (1962); N.L.
R.B. v. Mackay Radio & Telegraph Co., 304 U.S. 333,345-46
(1938); Metal Plating Corporation, 201 NLRB No. 28: Glad-
stone Food Products Co., 192 NLRB 267. Respondent urges
in its posthearing brief that the three employees were eco-
nomic strikers and that it therefore had the right to "re-
place" them . However , it is well settled that economic
strikers may not be discharged-as they were here-before
they are replaced , and that to do so is an unfair labor
practice . N.L.R.B. v. International Van Lines, 409 U.S. 48
(1972). Nor is Respondent's contention that the employees
in question made no request for reinstatement a defense;
such a request is unnecessary in view of their prior unlawful
discharge.
Upon the entire record, it is accordingly found that Re-
spondent discharged its employees, Butler Johnson , Philip
Macken, and Patrick Roche (also known as Patrick Joseph
Roche), on April 12, 1972, for exercising rights guaranteed
to them under the Act; namely, engaging in protected con-
certed activities.
2. Lopez
Gorky Lopez, another employee, commenced picketing
subsequent to April 13; i.e., subsequent to the described
discharges of Johnson, Macken, and Roche.
According to Lopez, the day after the strike began he
called at the shop and received a paycheck, together with his
clothes and tools , and also a letter , from Kessel ; he subse-
quently picketed for several days; and he has never reap-
plied for his job. tt According to Kessel, however, on April
13 Lopez called for his pay and tools, telling Kessel that he
had another job and was leaving, whereupon Kessel paid
him off and gave him a letter stating:
This is to confirm our conversation of yesterday April
12, 1972 in which you advised me that you have re-
signed and have found permanent employment else-
where.
Enclosed is your check in the amount of $102.68 for
week ending April 12, 1972.
Lopez does not deny he received and read this letter. Ac-
cording to Kessel , he also told Lopez he might return if his
other job proved unsatisfactory; as to this, Lopez conceded,
"I guess he did but I don't remember exactly."
It is uncontroverted that Lopez in no way, in writing or
orally, answered or took issue with the foregoing letter or
any of its contents-which , it will be noted , differ markedly
from that of the letters from Kessel to the three discharged
employees who, unlike Lopez, had struck and picketed on
April 12.
Although there is no testimony by Lopez that he spoke to
Kessel on April 12, nevertheless Lopez ' conceded nonparti-
cipation in any picketing or strike activity on April 12 or 13,
as well as his totally unexplained failure in any way to
question or take issue with the contents of Respondent's
April 13 letter confirming his resignation to go to another
job-a letter for no apparent reason entirely different in
content and tone from that written to each of the other
employees-persuasively militates against Lopez' basic
contention that he was on strike at that time or was dis-
charged for such activity. In this posture of the record, there
appears to be more preponderant basis to find, as I do, that
Lopez' case is different from that of Johnson , Macken, and
Roche; and that , unlike those other three , it has not been
established by a preponderance of substantial credible evi-
dence upon the record as a whole that Lopez was discharged
by Respondent on April 12 or 13, 1972 , nor that Respondent
at any time then or thereafter refused or improperly failed
to reinstate or rehire him, because of the exercise by Lopez
of any right under the Act.
11 For reasons to be described-particularly the letter to him from Kes-
sel-I view with reservations Lopez' halting testimony that when he received
his paycheck from Kessel he told Kessel he was on strike when the latter
asked him if he wished to work
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. Refusing to Reemploy Employee Grech for
Engaging in Protected Concerted Activities
The complaint further alleges that Respondent has re-
fused since March 24, 1972, to reemploy its employee Den-
nis Grech because of his union affiliation and his protected
concerted activities.
Dennis Grech entered Respondent's employ in 1969, con-
tinuing as a roofer at increasing rates of pay, based upon
essentially satisfactory performance, until an episode of
March 23, 1972, which will be described." He signed a
union membership application card on March 6, in the
presence of various fellow employees, at or around the time
union organizational conclaves were being held by the em-
ployees openly on the street near Respondent's shop.
On March 23, 1972, Grech, together with Johnson, Mack-
en, and Roche (the employees later discharged for engaging
in protected concerted activities), and perhaps some others,
was occupied on a warehouse roofing job. According to
Grech, he was sliding down a seam to make it airtight as he
was affixing the roofing material, when Kessel , observing
him, called him a "stupid bastard" and "stupid f--k." Re-
sentful of these epithets, Grech told Kessel he was returning
to the shop, which he thereupon (in midafternoon) did with-
out objection by Kessel. At the shop office, Grech recount-
ed the incident to Rose Albin, who mollified him by saying
Kessel did not realize what he was saying. The following
morning, however, as Grech was about to enter the shop,
Kessel told him he had "walked off the job yesterday."
When Grech respondend, "What do you expect me to do
when you talk to me like that," Kessel told him to call back
in a few days. Grech not only did so by telephone but also
went to the shop in person, on each occasion to be told that
Kessel was not there; finally Rose Albin told Grech she
would have Kessel call him. Later, Rose Albin telephoned
Grech at his home in the evening and informed him that
Kessel had told her to notify him not to come in. Since then
Kessel has failed to rehire or permit Grech to return to
work, telling him there is no work for him. Herdeg conceded
that he had seen Grech in the company of the threee dis-
charged pickets, and that he knew "that he [Grech] was
signed up."
Kessel's version of these events is that on the day in
question (March 23) he had warned Grech-who is 21-
several times not to slide down the roof, finally telling him,
"Stop it, you stupid bastard, you are going to hurt yourself
and somebody else." whereupon Grech left in a huff, dis-
rupting the work of his 3-man crew. That afternoon or the
following morning-still according to Kessel-when he
next saw Grech and the latter asked him whether he could
return to work, Kessel told him to call him (Kessel) back
since (as he told Grech) he had already made tentative
arrangements to hire somebody in Grech's place because
Grech had "walked off the job." On cross-examination,
Kessel conceded that although he told this to Grech, he had
not in fact made any such arrangements. According to Kes-
sel, he intended only to discipline Grech by suspending him
12 It will have been noted that March 23 antedates the April 12-13 strike
picketing resulting in the discharge of other employees Grech did not picket
at any time
for a few days , not to fire him, since Grech was an experi-
enced and generally satisfactory worker . Kessel claims that
the only reason he did not rehire or permit Grech to return
to his job was that although Grech did call back, Grech
failed to speak to Kessel "personally "; and that if Grech
had spoken to him "personally" he probably would have
rehired him . Notwithstanding this testimony on direct ex-
amination , Kessel conceded on cross-examination that he
had instructed Rose Albin to telephone Grech not to come
in (as testified to by Grech), but to call him first, and that
Grech failed to call him back thereafter . Kessel also testi-
fied , however , that he had turned Grech down for reemploy-
ment only a month before the instant hearing , for the
alleged reason that "at this time we are not hiring him."
We are entitled to take Kessel at his sworn word at the
hearing that Grech was a competent and generally satisfac-
tory worker and that Kessel did not intend to fire but merely
suspend him for a few days in consequence of the described
episode of March 23 . But the rest of Kessel 's story-particu-
larly considering the observation previously made in anoth-
er connection concerning his repudiation of a portion of his
pretrial affidavit given in the presence of his own attorney-
does not hang together well. Since Kessel merely meant to
discipline Grech with a few days ' suspension , why did he
not tell this to Grech ? And, since Grech did in fact seek
reinstatement not only by telephone but in person, to
Kessel's conceded knowledge, why then did Kessel not give
him his job back ? I cannot credit Kessel's assertion that the
only reason he did not allow Grech to return to work was
that Grech did not , in effect , persist until he nailed Kessel
"personally" although Grech had been calling on the tele-
phone and even in person ; nor does Kessel's excuse hold up
under his admission that he turned Grech down for a job
as recently as a month before this hearing.
Considering the fact of Grech's open union affiliation in
this small shop, where Kessel 's lieutenants (Herdeg and
Rose Albin) repeatedly reminded employees that their
union activities were well known to Kessel , Herdeg's con-
cession at the hearing of knowledge of Grech 's union affilia-
tion , Kessel's admission that Rose Albin "probably did .. .
mention Dennis Grech" to him in "speculating" about the
union adherents , and Grech 's totally and inexplicably un-
successful attempts to return to his job which he had filled
satisfactorily and where he was needed , in the light of the
record as a whole including Kessel 's evasive testimony,
Kessel's inconsistent and incredible explanations for failing
to allow Grech to go back on the job impress me as lame,
and they simply do not hold water or "stand under scrutiny"
(N.L.R.B. v. Dant, 206 F .2d 165, 167 (C.A. 9, 1953), and
cases cited). The facts and circumstances indicate, rather,
and I find upon the record as a whole , that the real and only
reason for Kessel 's failure to allow Grech to return to his job
at any time in the long interval since March 23-when,
according to Kessel , he only meant to suspend him for a few
days-was Grech 's union affiliation and participation in
protected concerted activities . Cf. Shuttuck Denn Mining
Corp. v. N.L.R. B., 362 F .2d 466 , 468-70 (C.A. 9, 1966); Sun
Hardware Co., 173 NLRB 973, 975-76, enfd . 422 F .2d 1296
(C.A. 9, 1970).
Upon the foregoing findings and the entire record, I state
the following:
ROOSEVELT ROOFING 679
CONCLUSIONS OF LAW
1. At all material times, Roosevelt Roofing and Sheet
Metal Works, Inc., Respondent herein, has been and is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. Jurisdiction is properly asserted in this proceeding.
3. By its conduct set forth and found in "II ,B," supra,
consisting of (1) interrogation of its employees concerning
their and other employees' union membership, (2) creating
the impression among its employees and giving them to
understand that their union and other protected concerted
activities were subject to its surveillance, and (3) threatening
its employees with harmful economic consequences includ-
ing the shutdown of its plant in the event they continued to
engage in protected concerted activity through union mem-
bership or affiliation, Respondent has interfered with, re-
strained, and coerced its employees, and is continuing so to
do, in the exercise of rights guaranteed to said employees by
Section 7 of the National Labor Relations Act as amended,
and has thereby engaged and is continuing to engage in
unfair labor practices in violation of Section 8(a)(1) of said
Act.
4. By its discharge of its employees Butler Johnson, Phil-
ip Macken, and Patrick Roche (also known as Patrick Jo-
seph Roche) on April 12, 1972, and its failure and refusal
to reinstate or rehire them since then, under the circum-
stances described and found in "II,C," supra, Respondent
has discriminated and is continuing to discriminate in re-
gard to the hire, tenure, and terms and conditions of em-
ployment of its employees, thereby discouraging
membership in a labor organization, and has thereby en-
gaged and is continuing to engage in unfair labor practices
in violation of Section 8(a)(3) of the Act. Respondent has
further thereby interfered with, restrained, and coerced its
employees, and is continuing so to do, in the exercise of
rights guaranteed to said employees by Section 7 of the Act,
thereby engaging and continuing to engage in unfair labor
practices in violation of Section 8(a)(1) of the Act.
5. By its failure to reinstate or rehire its employee Dennis
Grech on or after March 24, 1972,13 under the circumstanc-
es described and found in "II,D," supra, Respondent has
discriminated and is continuing to discriminate in regard to
the hire, tenure, and terms and conditions of employment
of its employees, thereby discouraging membership in a
labor organization, and has thereby engaged and is continu-
ing to engage in unfair labor practices in violation of Section
8(a)(3) of the Act. Respondent has further thereby inter-
fered with, restrained, and coerced its employees, and is
continuing so to do, in the exercise of rights guaranteed to
said employees by Section 7 of the Act, thereby engaging
and continuing to engage in unfair labor practices in viola-
tion of Section 8(a)(1) of the Act.
6. The aforesaid unfair labor practices and each of them
13
The date of March 24 is here specified in view of the fact that although,
as shown above , Kessel now claims he intended no more than to suspend
Grech for only a few days after the described incident of March 23, Kessel
at no time made this known to Grech, as he readily could and should have,
who was rebuffed by Kessel when he presented himself for work as usual on
March 24, and since Kessel's subsequent behavior indicates he had no inten-
tion of permitting Grech to return.
affect commerce within the meaning of Section 2(6) and (7)
of the Act.
7. It has not been established by a fair preponderance of
substantial credible evidence upon the record as a whole
that Respondent discharged its employee Gorky Lopez on
April 13, 1972, or any other time, or that it has at any time
failed or refused to reinstate or rehire him, in violation of
the Act.
REMEDY
Having been found to have violated Section 8(a)(3) and
(1) of the Act, Respondent should be ordered to cease and
desist therefrom; and, further, since its violations go to the
heart of core provisions of the Act, to cease and desist from
violating those provisions. Respondent should also be re-
quired to post the usual notice to employees, to the effect
that it will desist from such violations or interfering with its
employees' rights under the Act. Beyond this, Respondent
should be required to offer reinstatement to their former (or,
if no longer available, in that case equivalent) jobs to its
employees Johnson, Macken, and Roche, whom it discrimi-
natorily discharged on April 12, 1972, as well as to its em-
ployee Grech whom it has discriminatorily failed and
refused to reinstate since March 24, 1972.14 Backpay for
those employees should also be paid by Respondent for all
pay lost in consequence of the unlawful discharges or failure
to reinstate (cf. N.L.R.B. v. International Van Lines, supra),
together with interest thereon from said dates (in the cases
of Johnson, Macken, and Roche, from April 12, 1972; and
in the case of Grech, from March 24, 1972,15 ), less applica-
ble interim earnings if any, all to be computed in the manner
delineated in F. W. Woolworth Co., 90 NLRB 289, and Isis
Plumbing & Heating Co., Inc., 138 NLRB 716; and Respon-
dent should be required to make available necessary records
for computation purposes.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, there is hereby issued the following:
ORDER 16
It is hereby ordered that Respondent, Roosevelt Roofing
and Sheet Metal Works, Inc., its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees in violation of Section
8(a)(1) of the National Labor Relations Act, as amended,
concerning their or any other employee's union member-
ship or affiliation, or concerning their or any other
14 It will be recalled that a fifth employee, Charles Velsor (who the com-
plaint alleges had been discharged on February 29), was dropped from the
complaint upon application of General Counsel at the hearing General
Counsel indicated the reason for this was misconduct on Velsor's part disen-
titling him to reinstatement or other remedy
15 See In 13, supra
16 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 which follows herein shall, as provided
in Sec 102 48 of those 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
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee's union or other concerted activity protected un-
der the Act.
(b) Creating the impression among its employees and
giving them to understand that their union or other protect-
ed concerted activities are under its surveillance, for the
purpose of discouraging the same or interfering with, re-
straining, or coercing the free exercise thereof by any em-
ployee.
(c) Threatening employees with harmful economic con-
sequences, including but not limited to shutdown of its
shop, discontinuance of its business, or cessation or termi-
nation of its employees' jobs, in the event its employees
exercise their right under the Act to join or maintain mem-
bership in a union, or to bargain collectively with Respon-
dent concerning terms or conditions of their employment.
(d) Discriminating against any employee in regard to his
hire, tenure, or terms or conditions of his employment, so
as to discourage membership in a labor organization, by
discharging him for or on account of such membership,
affiliation, sympathy, or for exercising or attempting to ex-
ercise his right to bargain collectively with Respondent con-
cerning the hire, tenure, or terms and conditions of his
employment through a representative of his own choosing,
or for exercising or attempting to exercise any other right
under the Act.
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to self-
organization; to form, join, or assist any labor organization;
to bargain collectively through representatives of their own
choosing; to engage in concerted activities for the purposes
of collective bargaining or other mutual aid or protection;
or to refrain from any and all such activities.
2. Take the following affirmative actions necessary to
effectuate the policies of the Act:
(a) Offer Butler Johnson, Philip Macken, Patrick Roche
(also known as Patrick Joseph Roche), and Dennis Grech
full and unconditional reinstatement to their former (or, if
no longer available, to equivalent) jobs with Respondent in
the same fashion and for all purposes, including but not
limited to seniority, as though Respondent had not dis-
charged said Johnson, Macken, and Roche on April 12,
1972, and as though Respondent had not failed to permit
said Grech to resume his job on March 24, 1972.
(b) Make said Johnson, Macken, Roche, and Grech
whole, in the manner set forth in the Remedy portion of this
Decision, for any loss of pay suffered by them as the result
of Respondent's unlawful discharge of Johnson, Macken,
and Roche on April 12, 1972, and its unlawful refusal and
failure to permit Grech to resume his job on and at all times
since March 24, 1972.
(c) Preserve and, upon request, make available to the
Board and its agents , for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary
to analyze the amounts of backpay due hereunder.
(d) Post in its premises in Woodside, Queens County,
New York, copies of the attached notice marked "Appendix
B." 17 Copies of said notice, on forms provided by the
Board's Regional Director for Region 29 shall, after being
duly signed by Respondent's authorized representative, be
posted by Respondent 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 to insure that said notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director for Region 29, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, dated July 28,
1972, be and it is hereby dismissed as to all other violations
there alleged but not here found.
17 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 "