Wm. C. Shopovick & Co.

National Labor Relations Board - Board Decisions

Sep 30, 1992

308 N.L.R.B. 1165 (N.L.R.B. 1992)

1165
308 NLRB No. 172
WM. C. SHOPOVICK & CO.
1 No exceptions were filed to the judge’s findings that the Re-
spondent violated Sec. 8(a)(1) and (3) of the Act by discharging em-
ployee Horst Sollfrank and violated Sec. 8(a)(1) by threatening em-
ployees with discharge for seeking the assistance of the Union con-
cerning their rate of pay.
2 The Respondent filed exceptions regarding, inter alia, the judge’s
recommended make-whole remedy of reinstatement and backpay and
also filed a motion to reopen the record to adduce evidence regard-
ing its alleged offer of reinstatement to Sollfrank at a November
1989 grievance meeting on his discharge. We deny the motion to re-
open the record of the unfair labor practice proceeding, but will per-
mit the Respondent to submit its evidence at the compliance stage
of the proceeding since it pertains to whether the Respondent has
satisfied the reinstatement requirement and, hence to whether—and
if so, when—the backpay period has been tolled. The Respondent
will also be permitted to submit evidence on the question of whether
employee Sollfrank would have been transferred or reassigned to
other jobsites were it not for the unlawful discharge. See Dean Gen-
eral Contractors, 285 NLRB 573 (1987).
Contrary to the dissent, we do not find that the judge abdicated
his decision-making responsibility or that a remand is appropriate.
The focus of the hearing was on the alleged unfair labor practices,
and not on the matter of remedies. The judge found that the record
was ‘‘insufficient to make a finding whether Respondent made a
firm, unconditional offer of immediate reinstatement to Sollfrank.’’
We agree with that finding. Where the record is not fully developed
on the issue of whether a respondent made a valid offer of reinstate-
ment, it is appropriate for the Board to leave the matter to the com-
pliance stage of the proceeding but to include in the Order a provi-
sion requiring that the respondent offer reinstatement and backpay
if it has not previously done so. We shall amend the judge’s rec-
ommended Order and notice to expressly include this conditional
language. See M.P.C. Plating, 295 NLRB 583 fn. 2 (1989), modified
on other grounds 912 F.2d 883 (6th Cir. 1990), modified mem. 917
F.2d 24 (6th Cir. 1990). See also Baker Mfg. Co., 269 NLRB 794
fn. 2 (1984), enfd. in pertinent part and remanded in part 759 F.2d
1219 (5th Cir. 1985). Thus, the general order of reinstatement and
backpay can be adjusted at the compliance proceeding to fit the cir-
cumstances of Sollfrank’s unlawful discharge.
1 In all other respects, I agree with the majority’s disposition of
the case.
2 Neither Shopovick’s nor Sollfrank’s testimony suggests or im-
plies that the offer was a conditional one.
William C. Shopovick & Co., Inc. and Horst
Sollfrank. Case 2–CA–24088
September 30, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On July 17, 1991, Administrative Law Judge Steven
Davis issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the Gen-
eral Counsel filed a brief in answer to the Respond-
ent’s exceptions.1
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order as
modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Wil-
liam C. Shopovick & Co., Inc., White Plains, New
York, its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
1. Substitute the following for paragraph 2(a).
‘‘(a) Offer, if it has not already done so, to Horst
Sollfrank full and immediate reinstatement to his
former position or, if that position no longer exists, to
a substantially equivalent position without prejudice to
his seniority or other rights and privileges previously
enjoyed and make him whole for any loss of earnings
and other benefits suffered as a result of the discrimi-
nation against him in the manner set forth in the rem-
edy section of the decision.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
MEMBER OVIATT, dissenting in part.
The judge in this case held that the record before
him was ‘‘insufficient to make a finding whether Re-
spondent made a firm, unconditional offer of imme-
diate reinstatement’’ to employee Sollfrank. The ma-
jority adopts the judge’s findings but permits the Re-
spondent to introduce evidence at compliance showing
that it has satisfied the reinstatement requirement. I
dissent. For the reasons set forth below, I find that this
record contains sufficient evidence on which the judge
could make, and should have made, a finding as to
whether the Respondent made Sollfrank a valid offer
of reinstatement. I would remand the case for that
finding.1
As reported by the judge, the Respondent’s presi-
dent, William Shopovick, testified that Shopovick was
asked by Union Business Manager Lyons at a Novem-
ber grievance meeting whether he would rehire
Sollfrank and ‘‘Shopovick said he would.’’ Shopovick
also testified without contradiction that to the best of
Shopovick’s knowledge the ‘‘offer’’ was ‘‘commu-
nicated to Mr. Sollfrank’’ but that Lyons ‘‘came back’’
to Shopovick ‘‘and said that Mr. Sollfrank declined the
offer.’’ (Tr. 97.) The General Counsel’s witness,
Sollfrank, initially corroborated Shopovick. According
to the judge, ‘‘Sollfrank testified [on cross-examina-
tion] that at the grievance meeting, Shopovick offered
to reemploy him, and he refused the offer.’’ (JD, sec.
II,4; see Tr. 48.)2 The administrative law judge ob-
served that ‘‘Sollfrank also testified [later on cross]
that the Union agent told him that Respondent asked
1166 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The judge also relied on the fact that the date of the grievance
meeting was not specifically identified in the record. This is a weak
reed indeed on which to find an ‘‘insufficient’’ record. Shopovick
testified that he received a certified letter from the Union identifying
the date of the meeting, and it has been established that the meeting
was in November 1989. (Tr. 96.) It would be a small matter in com-
pliance to get the exact date from the letter. Equally weak in my
view is the judge’s reliance on the fact that Lyons was not called
to testify. Where the discriminatee himself has testified that he did
receive an offer of reemployment—and Sollfrank’s testimony reason-
ably could be read that way—Lyons’ testimony was not necessary.
4 Like the majority, I would deny the Respondent’s motion to re-
open the record. The Respondent has not shown that the evidence
it now proffers was previously unavailable had it exercised due dili-
gence in seeking that evidence.
if he wanted to be reemployed, and he refused.’’ (Em-
phasis added.) (Id.; see Tr. 49.)
It is settled law that for an offer of reinstatement to
be valid it must be sufficiently specific to put the em-
ployee on notice that he is unconditionally being of-
fered back his job. See, e.g., Daniel Construction Co.,
276 NLRB 1093, 1097 (1985), enfd. 731 F.2d 191 (4th
Cir. 1984); Hudson Neckwear, 302 NLRB 93, 94
(1991). But the offer need not specify the title of the
job being offered or that the offer is one of reinstate-
ment rather than as a new hire. If the record shows
that the employee understood that he was being offered
immediate reinstatement to his old job (or to a substan-
tially equivalent one) that is sufficient. See Daniel
Construction Co., supra (‘‘it was all right for [Norris]
to come back to work, and if he would report back
Monday he could go to work,’’ was a valid offer be-
cause it was unconditional, the employee believed he
was being offered reinstatement, and it was sufficiently
specific); Hudson Neckwear, supra (a letter notifying
the discriminatee that the respondent was ‘‘calling
[him] back to work as of today,’’ was a valid offer of
reinstatement); Moro Motors, 216 NLRB 192 (1975)
(an offer stating, ‘‘We are in a hole for mechanics,
would you like to come back to work here?’’ was
valid because it was free of conditions and the
discriminatee’s testimony revealed that he understood
the offer to be one of reinstatement to his former posi-
tion, not just a general inquiry as to his interest in re-
turning to work).
It is also the law that an employer may transmit an
unconditional offer of reinstatement to an employee
through that employee’s bargaining representative. See,
e.g., Hotel Roanoke, 293 NLRB 182 (1989); Lipman
Bros., 164 NLRB 850 (1967).
Viewed in a light favorable to the Respondent, the
testimonial evidence in my opinion is sufficient to
show that the Respondent made Sollfrank a valid, un-
conditional offer of reinstatement. Thus, Shopovick
testified that he made an offer to Union Business
Agent Lyons to rehire Sollfrank. Sollfrank testified that
at the November grievance meeting Shopovick,
through Lyons, offered to reemploy Sollfrank.
Sollfrank also testified that he refused the offer. In my
view this testimony shows that Shopovick made a
valid offer of reinstatement. See Hudson Neckwear,
supra; Daniel Construction Co., supra; Moro Motors,
supra.
Later on cross, Sollfrank also testified, however, that
Lyons told him that the Respondent asked if he wanted
to be reemployed, and Sollfrank refused. While this
additional testimony standing alone is not evidence of
a valid offer, the judge did not treat it as overriding
Sollfrank’s earlier testimony which, as I have ex-
plained, was evidence of a valid offer. Indeed,
Sollfrank’s later testimony on cross could reasonably
be read as being consistent with his earlier testimony,
since in eliciting the later testimony the questioner did
not ask Sollfrank whether the Respondent’s inquiry
concerning Sollfrank’s interest in reemployment was
the only thing the Respondent conveyed to Sollfrank
through Lyons (Tr. 49). The General Counsel did not
clarify the matter on redirect.
The judge, to whom this case was entrusted, should
have made a finding whether Sollfrank’s later testi-
mony on cross overrode Sollfrank’s earlier testi-
mony—which, in my opinion, was proof of a valid
offer of reinstatement—or simply complemented that
earlier testimony. Instead of resolving this critical
question, which, as the trier of fact he was bound to
do, the judge found the record ‘‘insufficient to make
a finding whether’’ the Respondent made an uncondi-
tional offer.3 In so doing, he abdicated his responsibil-
ities.
While there may be times when it is appropriate to
consider reinstatement offers at compliance, this is not
one of them. Here, a record has been made before the
judge on an offer of reinstatement, and the judge, who
heard that testimony, should be the one forthrightly to
decide that issue.
In sum, I would remand the case to the judge for
his resolution of the possible conflict in Sollfrank’s
testimony on the reinstatement offer, and for a rea-
soned decision on whether what was conveyed to
Sollfrank was a valid reinstatement offer.4 Because my
colleagues are unwilling to do so, I dissent.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
1167WM. C. SHOPOVICK & CO.
1 The contract provides that ‘‘on payday the funds that have been
provided for fringe benefits due . . . shall be paid by stamps to be
purchased . . . and placed in the envelope. The stamps shall be
equal in value to total all fringe benefits due that week.’’
WE WILL NOT discharge our employees because they
make claims that we are not paying them the proper
wages or benefits, and seek the Union’s help in sup-
port of their claim.
WE WILL NOT threaten to discharge our employees
because they seek the Union’s help concerning their
rate of pay.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
WE WILL, if we have not already done so, offer to
Horst Sollfrank full and immediate reinstatement to his
former position or, if that position no longer exists, to
a substantially equivalent position without prejudice to
his seniority or any other rights and privileges pre-
viously enjoyed and make him whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against him, plus interest.
WE WILL remove from our files any reference to the
unlawful discharge of Horst Sollfrank and notify him
in writing that this has been done and that the dis-
charge will not be used against him in any way.
WILLIAM C. SHOPOVICK & CO., INC.
Gregory B. Davis, Esq., for the General Counsel.
Wayne P. Stix, Esq, of White Plains, New York, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Pursuant to a
charge filed on January 25, 1990, by Horst Sollfrank, an in-
dividual (Sollfrank), a complaint was issued against William
C. Shopovick & Co., Inc. (Respondent) on June 26, 1990.
The complaint alleges that Sollfrank was discharged in viola-
tion of the Act because he claimed that he was not being
paid the proper amount of wages he was entitled to under
a contract between Respondent and the Carpenters District
Council of Westchester County, New York, United Brother-
hood of Carpenters and Joiners of America (Union), and be-
cause he sought the assistance of the Union in support of his
claim. The complaint also alleges that Respondent threatened
its employees with discharge because they sought the assist-
ance of the Union concerning their rate of pay.
Respondent’s answer denied the material allegations of the
complaint and, on November 13, 1990, a hearing was held
before me in New York City. On the entire case, including
my observations of the demeanor of the witnesses and after
consideration of the brief filed by the General Counsel, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, having an office and place of
business in White Plains, New York, has been engaged in the
construction of condominiums and other housing on a non-
retail basis. It was stipulated, and I find, that in 1989, Re-
spondent’s gross revenues exceeded $250,000, and in the cal-
endar year 1989, it was paid in excess of $50,000 from
Ginsberg Development Corp. (Ginsberg) a New York cor-
poration, for its services. It was also stipulated that in 1989,
Ginsberg received gross revenues in excess of $250,000, and
purchased goods valued in excess of $50,000 from Trust
Tech, Inc., located in Connecticut. Based on these facts, I
find and conclude that Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
Respondent’s answer denied knowledge or information as
to the labor organization status of the Union. The facts estab-
lish that Respondent executed a collective-bargaining agree-
ment with the Union on May 1, 1989, for the Clarewood Vil-
lage project, and the evidence also shows that Respondent
obtained all its labor from the Union, and paid its employees
the terms and conditions set forth in its collective-bargaining
agreement. Based on the above, I find and conclude that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background
Respondent’s full-time employees consist of William
Shopovick, its president, and his wife, who keeps its books.
Respondent obtains carpenters for jobs as needed by calling
the Union and requesting that a certain number of carpenters
be sent. Shopovick stated that the period of employment con-
sists of the job for which he hires the carpenter, unless the
employee is discharged sooner for some reason. However, it
appears that, in this case at least, although a carpenter’s as-
signment was complete on one job, he would be transferred
to other jobs which Respondent was engaged in.
Respondent paid its employees based on the collective-bar-
gaining agreement it had with the Union. Pursuant to that
contract, one rate of pay was payable to the carpenter—$3.15
per hour. The contract specifies no difference between the
type of job worked on, but the Respondent and the Union
apparently had an understanding that as to jobs classified as
commercial, the carpenter is employed for 35 hours per week
and receives one stamp each week equal in value to the total
of all fringe benefits due each week. Respondent purchases
the stamps from a bank, and then places the stamp in the pay
envelope of the employee. As to jobs classified as residential,
the carpenter is employed for 40 hours per week, and re-
ceives no benefit stamps. Employees are paid weekly.1
2. Sollfrank’s work record
In January 1989, Shopovick called Union Business Agent
Gordy Lyons and requested carpenters. Sollfrank, one of the
carpenters sent by Lyons, thus became employed by Re-
spondent for the first time. He was employed at Baldwin
Place in Lake Mohegan, a commercial rate job, for about 3
1168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Respondent sought and received permission from the Union to
transfer Sollfrank to its various jobs.
3 On cross-examination, Sollfrank conceded that he had been paid
the proper wages at all times. Indeed, he admitted that from the be-
ginning of the Clarewood job until his discharge, he was paid $1
more than the contractual rate.
weeks, during which time he received the proper pay, includ-
ing a stamp each week. Sollfrank was then transferred to an-
other job being performed by Respondent in Armonk.2
Again, he was properly paid during his 2-week period of em-
ployment, and received stamps each week.
Respondent then transferred Sollfrank to a job at
Clarewood Village, a condominium and townhouse construc-
tion project. According to Shopovick, Ginsberg and the
Union agreed that the project would be classified as commer-
cial for 1 month, and then reclassified as residential.
Shopovick was not consulted as to the decision to reclassify
the job. Sollfrank worked at Clarewood for about 4 months.
He received benefit stamps for about the first month of his
work there, and then, on the reclassification of the project,
he received no further stamps for the remainder of his work
there. Although Sollfrank no longer received stamps for that
job, he continued to receive welfare, pension, and apprentice-
ship program benefits. It was only the vacation benefit, val-
ued at $1.75 per hour, which Sollfrank no longer received as
a result of the reclassification of the project.
At the time of the reclassification, although not required
to, Respondent increased the pay of Sollfrank, from $23.15,
the contractual rate, to $24.15, because it believed that the
employees were being ‘‘short-changed’’ by losing their vaca-
tion benefits as a result of the reclassification.
Following the Clarewood job, on about July 6, 1989,
Sollfrank was transferred by Respondent to a commercial
project in Mt. Vernon. Sollfrank received a paycheck the fol-
lowing day, July 7. That check included sums owed for the
Clarewood job, and 1 day’s work at Mt. Vernon. The pay
for Mt. Vernon was at a rate of $24.15. A benefit stamp was
required for the day’s work at Mt. Vernon because this was
a commercial job, but none was included in Sollfrank’s pay
envelope due to an oversight caused by Sollfrank being pre-
viously employed at the residential Clarewood job, at which
no stamps were payable. Sollfrank did not notify Respondent
of this error.
3. The discharge
The following week, on August 3, Sollfrank received a
paycheck for 1 week’s work at Mt. Vernon, which was at
the $24.15 rate. No stamp was included in his pay envelope,
although it was required. Sollfrank inquired of Respondent’s
foreman and Noel, the Union’s shop steward, both of whom
received the stamp that week. Sollfrank then determined that
he had not been paid correctly because he had not received
the benefit stamp to which he was entitled. Although
Sollfrank never saw a copy of the collective-bargaining con-
tract between Respondent and the Union prior to his dis-
charge, he assumed there was such an agreement because, as
he testified, he would not work in the absence of a contract.
Sollfrank immediately asked Noel to notify the union dele-
gate that he was not paid the correct wages and had not re-
ceived a stamp.3 Noel said he would do so. That evening,
Sollfrank called delegate Gordy Lyons, telling him that he
had not been paid the correct amount, and had not received
benefit stamps. Sollfrank stated that he called immediately
because he was once told that the employee has 72 hours
within which to file a grievance.
Sollfrank testified that the following day, August 4, he
asked Shopovick why he was not paid correctly, and why he
did not receive the benefit stamp. Shopovick replied that he
was keeping Sollfrank on the books of the Clarewood
project.
On Monday, August 7, Shopovick was told by union dele-
gate Lyons that Sollfrank claimed that he was not being paid
the correct rate and was not receiving benefits. Shopovick re-
plied that he was not aware of any such improper payments.
Sollfrank testified that that day, Shopovick came to the
Mt. Vernon jobsite and said to him: ‘‘You son of a bitch.
You called the union on me. You are going to be fired. You
will be gone by Thursday.’’ Sollfrank did not reply.
Shopovick’s version of the confrontation is that he asked
Sollfrank: ‘‘What’s going on? You called the business rep-
resentative stating that I did not pay you. That’s news to me.
What didn’t I pay you?’’ According to Shopovick, Sollfrank
replied: ‘‘I don’t give a shit. No one is going to screw me
out of anything.’’ Shopovick replied that he was not in busi-
ness to ‘‘screw anyone out of anything. I am not aware of
your problem. If I was aware of your problem I would cor-
rect it. If I had any intent of screwing you, why would I be
paying you one dollar over rate?’’ Sollfrank allegedly re-
plied: ‘‘I’m not going to get screwed by anybody.’’
Shopovick determined that Respondent had improperly re-
corded Sollfrank as working on a residential job when in fact
he was employed on a commercial project. The following
day, August 8, Shopovick gave Sollfrank his pay with all the
stamps which were due and owing, and said ‘‘that’s it.’’ Re-
spondent admits discharging Sollfrank that day.
Shopovick testified that he was told that Sollfrank told the
job foreman and shop steward that he (Shopovick) was a
‘‘crook’’ and that he was ‘‘gypping him out of his money.’’
Shopovick stated that he fired Sollfrank because of such ac-
cusations inasmuch as Sollfrank was ‘‘jeopardizing my rep-
utation.’’ He also faulted Sollfrank for not discussing his
complaint with him. Shopovick was also offended at
Sollfrank’s actions because, in the past, he always paid him
on time, and in addition paid him $1 over the contractual
rate.
Shopovick denied discharging Sollfrank for going to the
Union with his complaint. Sollfrank denied calling
Shopovick a ‘‘crook’’ or a ‘‘gyp.’’
Shopovick testified that he was not satisfied with
Sollfrank’s performance of his work at the Clarewood
project. He stated that he urged him to work faster and in
a neater manner. Sollfrank denied that any complaints were
made about his work. I need not resolve this conflict since
Respondent did not discharge Sollfrank for this reason.
Moreover, it appears that it tolerated his allegedly poor work
performance, and retained him until his complaint to the
Union.
4. The alleged offer of reinstatement
In November 1989, a grievance meeting was held on the
issue of Sollfrank’s discharge. Shopovick testified at the
Board hearing that he was asked by union agent Lyons at the
grievance meeting whether he would rehire Sollfrank.
1169WM. C. SHOPOVICK & CO.
4 I find, as alleged in the complaint, that Shopovick’s threat to dis-
charge Sollfrank because he sought the Union’s assistance concern-
ing the benefit stamps violates Sec. 8(a)(1) of the Act.
Shopovick said he would. This offer was communicated by
Lyons to Sollfrank who refused the offer. Sollfrank testified
that at the grievance meeting, Shopovick offered to reemploy
him, and he refused the offer. However, Sollfrank also testi-
fied that the union agent told him that Respondent asked if
he wanted to be reemployed, and he refused.
B. Analysis and Discussion
1. General Counsel’s prima facie case
General Counsel’s case essentially is that Sollfrank be-
lieved that he was not receiving the benefit stamps that he
was entitled to, he complained to the Union concerning this
matter, and was discharged for that reason.
I credit the testimony of Sollfrank concerning the August
7 confrontation with Shopovick. According to Sollfrank,
Shopovick cursed him, accused him of calling the Union, and
threatened that he would be ‘‘gone’’ by Thursday.4 Respond-
ent made good on its promise and discharged Sollfrank the
following day. Shopovick was admittedly angry at
Sollfrank’s complaint to the Union concerning his nonreceipt
of the benefit stamps. Thus, Shopovick admitted that he was
‘‘completely offended’’ by Sollfrank’s manner in which he
sought his correct payments, and was upset that he did not
first ask him (Shopovick) about the matter before going to
the Union. This supports General Counsel’s theory that
Sollfrank was discharged because he sought the Union’s help
regarding his benefit stamps.
In this connection, it should be observed that the com-
plaint in this case states that the violation consists of Re-
spondent’s discharge of Sollfrank because he ‘‘claimed that
Respondent was failing to pay him full and proper wages and
sought the assistance of the Union in support of his claim.’’
(Emphasis added.) The evidence establishes that Sollfrank re-
ceived the proper amount of wages at all times. However, as
will be discussed infra, he had a reasonable, honest belief
that he was not being paid the proper wages, and was correct
in his complaint to the Union that he had not received bene-
fit stamps, which was part of his remuneration, as required.
Accordingly, the complaint, as worded, is proper.
I find that Sollfrank’s actions in seeking the Union’s help
to obtain the benefit stamps that he believed he was entitled
to constitutes protected, concerted activity within the mean-
ing of Section 7 of the Act. Sollfrank, in seeking the stamps,
was asserting a right set forth in the collective-bargaining
agreement between Respondent and the Union to receive
stamps which represent payment of the fund contributions by
Respondent in Sollfrank’s behalf.
The Supreme Court, in NLRB v. City Disposal Systems,
465 U.S. 822 (1984), noted with approval the Board’s doc-
trine in Interboro Contractors, 157 NLRB 1295 (1966), enfd.
388 F.2d 495 (2d Cir. 1967). The Court observed that in
Interboro, it was held that an individual’s assertion of a right
grounded in a collective-bargaining agreement is recognized
as concerted activity and accorded the protection of the Act.
The Court further noted that the Board has recognized two
reasons for this doctrine: (a) the assertion of a right con-
tained in a contract is an extension of the concerted action
that produced the agreement and (b) the assertion of such a
right affects the rights of all employees covered by the con-
tract.
The Court in City Disposal, 465 U.S. 82, 840–841, held
that:
As long as the grievance is based on an honest and rea-
sonable belief that a right had been violated, its filing
is a concerted activity because it is an integral part of
the process by which the collective bargaining agree-
ment is enforced.
It is clear that Sollfrank’s action in seeking help from the
Union, in effect grieving the Respondent’s failure to provide
the required stamps, was concerted activity. He had a reason-
able and honest belief, which in fact was true, that he was
entitled to the stamps and had not received them.
I accordingly find that Sollfrank was engaged in protected,
concerted activity in enlisting the Union’s help to obtain the
stamps to which he was entitled.
I further find and conclude that General Counsel has made
a prima facie showing that Sollfrank’s activity in seeking
help from the Union to receive the stamps was a motivating
factor in Respondent’s decision to discharge him. Wright
Line, 251 NLRB 1083 (1980).
2. Respondent’s defense
Once a prima facie case has been established, it is Re-
spondent’s burden to demonstrate that it would have dis-
charged Sollfrank in the absence of his engaging in pro-
tected, concerted activities. Wright Line, supra.
Respondent took pains to prove that at all times it sought
to pay its employees the sums to which they were entitled,
and that it scrupulously honored the terms and conditions of
its collective-bargaining agreement. In fact, it obtained ad-
missions from Sollfrank that the wages which he received
were equal to, and greater than, that required to be paid
under the contract. In this connection, Sollfrank’s complaint
to the Union that he was not paid wages at the proper, com-
mercial rate, was wrong. However, he had a reasonable, hon-
est belief that he was not being paid at the proper rate. In
fact, Shopovick testified that Sollfran was improperly listed
as working at a residential, and not commercial rate.
Sollfrank received the proper amount of wages because the
rate is the same for both residential and commercial jobs.
However, Sollfrank was correct in his assertion to the Union
that he was not receiving benefit stamps, as required.
I accordingly find that there was no intent by Respondent
to fail to give Sollfrank the benefit stamps to which he was
entitled.
That does not answer the question, however. Shopovick
asserts that it discharged Sollfrank because he learned that
Sollfrank had told the job foreman and shop steward that he
was a crook and was ‘‘gypping’’ him out of his money,
thereby damaging his reputation.
First, the evidence does not support a finding that Re-
spondent discharged Sollfrank for making those remarks. Ac-
cording to Sollfrank’s credited testimony, on August 7
Shopovick accused Sollfrank of going to the Union, and said
he would be fired within 3 days. Shopovick did not mention
the allegedly defamatory statements when he informed
Sollfrank that he would be fired. Second, we do not know
1170 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
when Shopovick learned of these statements in relation to the
time he was discharged.
Even assuming that Sollfrank made such comments, such
accusations were not so ‘‘defamatory or opprobrious’’ as to
remove Sollfrank from the protection of the Act. The re-
marks were made in the context of Sollfrank’s assertion of
a right grounded in the collective-bargaining agreement,
based on his reasonable belief that he had not received the
proper amount of benefit stamps.
In Hamlet Steak House, 197 NLRB 632, 635 (1972), an
employee told her employer that he had ‘‘cheated’’ her and
other employees with respect to their pay. The Board found
that such a statement did not remove her from the protection
of the Act:
The employee’s right to engage in concerted activity
may permit some leeway for impulsive behavior, which
must be balanced against the employer’s right to main-
tain order and respect.
In Abbey’s Transportation Services, 284 NLRB 698, 700
(1987), an employee complained to his fellow workers, and
workers in another company, that his employer had ‘‘cheated
him.’’ The Board found that the employer’s discharge of the
employee for that reason was pretextual, and that the real
reason was his union activities. The Board noted that, as to
the statements made concerning the pay dispute, ‘‘there is no
contention that [the employee’s] complaints constituted dis-
paragement of the Respondent’s product or service.’’
In Multi-Medical Convalescent, 225 NLRB 429, 436
(1976), the Board held that a statement by an employee to
her fellow employees that their employer was a ‘‘crook’’ was
not sufficient to forfeit the protection of the Act.
I accordingly find and conclude that Respondent has not
established that it would have discharged Sollfrank even in
the absence of his union and protected, concerted activities.
Wright Line, supra.
3. The alleged offer of reinstatement
The evidence concerning Respondent’s offer of reinstate-
ment is vague and ambiguous. As set forth above, Shopovick
testified that at the November grievance meeting he said he
would rehire Sollfrank. In response to a leading question,
Sollfrank testified that at that meeting, Respondent offered to
reemploy him. However, Sollfrank also testified that Re-
spondent merely asked if he wanted to be reemployed.
Sollfrank did not wish to return to work with Respondent.
Shopovick and Sollfrank did not speak directly regarding
this issue at the grievance meeting. Rather, union agent
Lyons, who did not testify here, acted as intermediary, relay-
ing the questions and responses.
If Respondent, through Shopovick, properly made an offer
of reinstatement to Sollfrank at the November meeting, Re-
spondent’s backpay liability would be tolled as of the date
of the offer. However, if Respondent simply was inquiring
whether Sollfrank was interested in becoming reemployed by
Respondent, such an inquiry is not a proper offer of imme-
diate reinstatement. Jones Plumbing Co., 277 NLRB 437,
450 (1985); Seligman & Associates, 273 NLRB 1216 (1981).
The record before me is insufficient to make a finding
whether Respondent made a firm, unconditional offer of im-
mediate reinstatement to Sollfrank. This is particularly true
where Lyons, the person who transmitted the purported offer
and its response, did not testify, and there is no evidence of
the date of the November meeting.
In addition, the fact that Sollfrank stated that he did not
wish to be reinstated is immaterial. As the Board stated in
Seligman:
It is well settled that only when a proper offer is made
and unequivocally rejected by the employees is the em-
ployer’s backpay obligation tolled.
. . . .
As the wrongdoer, the Respondent bears the burden of
remedying its unfair labor practices. We impose no
hardship by requiring that it meet that burden by mak-
ing a clear, unequivocal, legitimate reinstatement offer
even in the face of a discriminatee’s apparent under-
standing and repudiation of the concept of reinstate-
ment.
I will accordingly require that Respondent make an offer
of reinstatement as part of the remedy ordered herein.
CONCLUSIONS OF LAW
1. William C. Shopovick & Co., Inc. is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. Carpenters District Council of Westchester County,
New York, United Brotherhood of Carpenters and Joiners of
America is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. By discharging Horst Sollfrank because he claimed that
Respondent was failing to pay him the proper wages and
benefits, and sought the assistance of the Union in support
of his claim, Respondent violated Section 8(a)(1) and (3) of
the Act.
4. By threatening its employees with discharge because
they sought the assistance of the Union concerning their rate
of pay, Respondent violated Section 8(a)(1) of the Act.
5. The above-described unfair labor practices are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find it necessary to recommend that
it cease and desist therefrom and take certain affirmative ac-
tion necessary to effectuate the policies of the Act.
Having unlawfully discharged Horst Sollfrank, Respondent
shall offer him reinstatement and make him whole for lost
earnings and other benefits computed on a quarterly basis
from the date of discharge to the date of a proper offer of
reinstatement, less net interim earnings in accordance with
F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
1171WM. C. SHOPOVICK & CO.
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
6 If this 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 Enforcing an Order
of the National Labor Relations Board.’’
ORDER
The Respondent, William C. Shopovick & Co., Inc., White
Plains, New York, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Discharging employees because they make claims that
Respondent is not paying them the proper wages or benefits,
and seek the Union’s help in support of their claim.
(b) Threatening to discharge employees because they seek
the Union’s help concerning their rate of pay.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Horst Sollfrank immediate and full reinstatement
to his former job or, if that job no longer exists, to a substan-
tially equivalent position without prejudice to his seniority or
any other rights or privileges previously enjoyed and make
him whole for any loss of earnings and other benefits suf-
fered as a result of the discrimination aainst him in the man-
ner set forth in the remedy section of the decision.
(b) Remove from its files any reference to the unlawful
discharge of Horst Sollfrank and notify him in writing that
this has been done and that the discharge will not be used
against him in any way.
(c) Preserve and, on 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 other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its White Plains, New York location copies of
the attached notice marked ‘‘Appendix.’’6 Copies of the no-
tice, on forms provided by the Regional Director for Region
2, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.