Editorial "El Imparcial" Inc.

8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERNATIONAL B ROTHERHOOD OF FIREMEN AND OILERS, A. F. OF L., or any other labor organization, to bargain collectively through representatives ^ f their own choosing, and to engage in other concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL offer to the five individuals whose names are listed below im- mediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and priv- ileges, and make them whole for any loss of pay they may have suffered by reason of our discrimination against them : David F. Death Clifford A. Todd Lloyd E. McMullen Arthur L. Woodmansee Ulden I. Smith All our employees are free to become or remain, or refrain from becoming or remaining, members of the above-named union or of any other labor organ - ization, except to the extent above stated. PIERCE BROTHERS MORTUARIES, Employer. Dated -------------------- By --------------------- (Representative) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. EDITORIAL "EL IMPARCIAL" INC. and CIRcuLo DE PRENSA ( GREMIO DE PERIODISTAS PUERTO RRIQUENOS ) . Case No. 24-CA-104. May 6, 1952 Decision and Order On November 15, 1951, Trial Examiner Ralph Winkler 1 issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. The Triai Examiner also found that the Respondent had not engaged in certain other alleged unfair labor practices. Thereafter, the Respondent filed exceptions to the Inter- mediate Report and a supporting brief. 1 As Trial Examiner MacCullen , who heard the testimony in this proceeding, was not available to prepare the Intermediate Report herein, we find without merit the Respond- ent's exceptions to the preparation of the Intermediate Report by Trial Examiner Winkler. Administrative Procedure Act, Section 5 (c), 5 U. S. C. Sec. 1004 (c). N. L. R. B. V. Stocker Manufacturing Company, 185 F. 2d 451 (C. A. 3). 99 NLRB No. 6. EDITORIAL "EL IMPARCIAL" INC. 9 The Board 2 has reviewed the rulings of the Trial Examiners at the hearing and in the Intermediate Report and finds that no prejudicial error was committed. The rulings are hereby affirmed.3 The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts Trial Examiner Winkler's findings,4 conclusions,6 and recommendations. Order Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Editorial "El Impartial" Inc., San Juan, Puerto Rico, its officers, agents, successors, and assigns, shall:' 1. Cease and desist from : (a) Discouraging membership in Gremio de Prensa Radio y Teatro de Puerto Rico, or in any other labor organization of its employees, by discharging or refusing to reinstate any employees or by discrimi- nating in any other manner in regard to their hire and tenure of em- ployment or any term or condition of employment. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Gremio de Prensa Radio y Teatro de Puerto Rico, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activi- ties, except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. 2 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Mem- bers Styles and Peterson]. 9 We specifically affirm Trial Examiner Winkler's ruling that the Board 's findings in the earlier proceeding against this Respondent (Editorial "El Impartial" Inc., 92 NLRB 1795) may be considered as evidence in the instant proceeding. Underwood Machinery Company, 79 NLRB 1287, enf. 179 F. 2d 118 ( C. A 1) ; see also J. S. Abercrombie Company, 83 NLRB 524, petition for review denied, 180 F. 2d 578 (C. A. 5). ' Trial Examiner Winkler apparently assumed, but did not specifically find, that the Respondent had knowledge of Fernandez ' continued union activity. Such knowledge is, however, established by Burgos' statement to Fernandez , upon the latter's reinstatement, as more fully set forth in the Intermediate Report, and also by the letter which Fernandez sent to the Respondent , accepting its offer of reinstatement. 6 In the absence of exceptions thereto, we adopt without further comment the Trial Examiner's conclusion that the Respondent did not independently violate Section 8 (a) (1) of the Act. 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action, which the Board finds will effectuate the purposes of the Act : (a) Offer to Ismael Fernandez Pacheco immediate and full rein- statement to his former or a substantially equivalent position without prejudice to his seniority or other rights and privileges and make him whole in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (b) Upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time cards, personnel records and reports, and all other records necessary to determine the amount of back pay due under the terms of this Order. (c) Post at its plant at San Juan, Puerto Rico, copies of the notice attached hereto and marked "Appendix A." 6 Copies of said notice, to be furnished by the Regional Director for the Twenty-fourth Region, shall, after being duly signed by the Respondent, be posted by the Respondent immediately upon receipt thereof, and maintained by it for a period of sixty (60) consecutive days thereafter in con- spicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Twenty-fourth Region in writing within ten (10) days from the date of this Order what steps the Respondent has taken to comply herewith. IT IS HEREBY FURTHER ORDERED that except as otherwise found here- in, the complaint be, and it hereby is, dismissed. Appendix A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT discourage membership in, or activities on be- half of, GREMIO DE PRENSA RADIO Y TEATRO DE PUERTO Rico or any other labor organization, by discriminating in regard to, hire or tenure of employment or any term or condition of employ- ment. IIn the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." EDITORIAL "EL IMPARCIAL" INC. 11 WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self- organization, to form labor organizations, to join or assist GREMIo DE PRENSA RADIO Y TEATRO DE PUERTO Rico or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the pur- poses of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL offer to Ismael Fernandez Pacheco immediate and full reinstatement to his former or substantially equivalent posi- tion without prejudice to any seniority or other rights and privi- leges enjoyed and make him whole for any loss of pay suffered as a result of the discrimination against him. All our employees are free to become, remain, or refrain from be- coming or remaining members of the above-named union or any other labor organization, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8 (a) (3) of the Act. Dated ------------ EDITORIAL "EL IMPARCIAL" INC., Employer. By ----------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon charges duly filed by Circulo De Prensa, Gremlo de Periodistas Puerto- rriquefios (which was succeeded by Gremio de Prensa Radio y Teatro de Puerto Rico in May 1951), both organizations herein called the Union, the General Counsel for the National Labor Relations Board, by the Regional Director for the Twenty-fourth Region ( Santurce, Puerto Rico), issued a complaint i dated August 30, 1951, against Editorial "El Imparcial" Inc., herein called the Re- spondent, alleging that the Respondent discriminatorily discharged an em- ployee and otherwise engaged in other specified conduct in violation of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the Labor Management Rela- tions Act, 1947, 61 Stat. 136, herein called the Act. Copies of the complaint and I On September 12, 1951, the Board denied a motion of the Regional Director which sought to reopen and consolidate Case No. 38-CA-107 with the present proceeding. Accordingly, that portion of the caption of the complaint which refers to Case No. 38-CA-107 was stricken from complaint by the Trial Examiner at the hearing. 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charges were duly served upon the Respondent, whereupon the Respondent filed an answer denying the commission of the unfair labor practices alleged. Pursuant to notice, a hearing was held on September 18 and 19, 1951, at San- turce, Puerto Rico, before Allen MacCullen, a Trial Examiner duly designated to hear the matter. The General Counsel and the Respondent were represented by counsel and the Union by a representative. The parties participated in the hearing and were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the issues. The parties were granted opportunity to present oral argument before Trial Examiner MacCullen, and they were also granted opportunity, which all of them waived, to file briefs and proposed findings of fact and conclusions of law. After the hearing was closed in this matter, Trial Examiner MacCullen became unavailable to the Board for the purpose among other things of preparing and issuing an Intermediate Report and Recommended Order. On November 7, 1951, the undersigned was duly designated to act as Trial Examiner in this matter and particularly to prepare and issue an Intermediate Report. Upon the basis of the entire record in the case, I make the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a Puerto Rico corporation with its principal office and plant in San Juan, Puerto Rico, where it is engaged in the preparation, publica- tion, sale, and distribution of a daily newspaper known as "El Imparcial." The Respondent has cable and news connections with concerns in the United States and it also purchases all printing material, newsprint, ink, and other supplies from the United States or from express orders, the amount of which exceeds $100,000 yearly. I find that the Respondent is engaged in commerce within the meaning of the Act. II. THE. ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES Introduction The Respondent reinstated Ismael Fernandez (whose full name is Ismael Fernandez Pacheco) on July 25, 1950, pursuant to a recommended order of a Trial Examiner's Intermediate Report in an earlier proceeding against the Respondent upon charges filed by the Union. Editorial "El Impartial" Inc., 92 NLRB 1795. In that case the Board found that the Respondent had dis- eriminatorily discharged Fernandez on March 31,1949. The present case involves the Respondent's discharge of Fernandez on September 6, 1951, following the afore-mentioned reinstatement. The Respondent admits this second discharge; but denies the General Counsel's claim that it was made for discriminatory reasons. In answering the General Counsel's request in the present case that he take judicial notice of the afore-cited Decision and Order in resolving the matter of Fernandez' discharge under consideration here, Trial Examiner MacCullen stated that he would consider the matters contained in that decision merely as "background" and not as "evidence" in determining Fernandez' discharge. I do not know precisely - what limitations or distinctions Trial EDITORIAL "EL IMPARCIAL" INC. 13, Examiner MacCullen had in mind . It appears, however, that the parties in both proceedings are identical and that some of the material subsidiary issues which were litigated in the earlier proceeding are also identical. The Board's findings are therefore binding on the parties and entitled to the same full acceptance as if they had been made in the present case, and the probative effect of these findings is limited only by the same considerations of relevancy and materiality which apply to all matters otherwise properly before a finder of fact. What this means is that I do not distinguish between the terms "background" and "evidence" so far as concerns taking judicial notice of the Board's earlier decision, where that decision is a matter of public record based on a litigated proceeding between the same parties as are involved in the present case. Rather, I consider it proper to rely on any or all findings of the Board in the earlier case where such findings are probative of the issues raised by Fernandez' second discharge as alleged in the present complaint: The Respondent's Antiunion Animus The Union was organized as a labor organization in or about February 1949. Immediately upon learning of the possibility of such formation, the Respondent embarked upon a campaign designed to discourage membership in the Union, and the Respondent speeded up this campaign after receiving a request to bargain from the Union (92 NLRB 1796). As specifically detailed in 92 NLRB 1795, 1796, 1812-1820, the Respondent's unlawful campaign to "fight" and "destroy" the Union was flagrant and widespread and accompanied by threats of physical violence, including threats against Fernandez. But threats and warnings and inducements were not all , however ; for the Respondent discrimi- natorily discharged five employees, one of them Fernandez, and otherwise discriminated against a sixth employee because of their membership in and other activities on behalf of the Union (92 NLRB 1796-1802, 1820-1838). Fernandez ' First Discharge Fernandez was employed as a reporter by the Respondent from December 1944 until his first discharge in March 1949 when he and other employees were terminated because of their prominent role in the Union 's affairs. Fernandez has been an officer and an otherwise active member of the Union at all times since its inception in February 1949. At the hearing in the earlier case, the Respondent attempted to justify the 1949 discharge as having been made for cause ; it nevertheless appears from the Board 's findings, in that case, that these proffered reasons were lacking in substance and otherwise were merely pretexts intended to conceal the discriminatory character of the discharge. With- out further duplication of fact finding, I incorporate by reference the entire discussion of Fernandez' discharge in 1949 as found by the Board in the earlier Decision and Order (92 NLRB 1832-1835). Fernandez' Second Discharge Fernandez returned to work on July 25, 1950, and was discharged a second time on September 6, 1950. The Respondent avers in its answer to the com- plaint that it discharged Fernandez, .. , among other reasons, for (a ) his repeated and apparently deliberate failure to efficiently comply with his assignments as a reporter on Respond- ent's newspaper, (b) his repeated and apparently deliberate failure to abide "• 2 See Underwood Machinery bonii any, 79 NLRB 1287, 1290. 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the written instructions given him by the management concerning the time schedule which he was to observe, and this despite the fact that his initial violations of the said instructions were called to his attention by the management in writing, (c) his generally impudent and contemptuous attitude towards his superiors, and (d) the deliberate and obviously pro- vocative attitude assumed by him immediately preceding his discharge by the Respondent. Immediately upon his reinstatement, Fernandez was instructed by Pedro Burgos that he "should not talk to anyone about union activities or anything else without his [Burgos] permission." (Burgos is chief of the editorial room, a supervisory position ; his participation in the Respondent's campaign to defeat the Union in 1949 is discussed by the Board in the earlier case. 92 NLRB 1796, 1817-1818.) By memorandum dated July 25, 1950, Burgos instructed Fernandez that, beginning at once, ... you will be under the obligation to cover the following sources of information : District Court in San Juan-You will have to bring a copy of all pleadings filed in civil action and criminal cases. You will also have to bring every day a copy of the call in civil cases and of dates set in criminal cases. If will be under your responsibility to bring all information that may originate in the District Court. You will have to bring all information from this source to the editorial office prior to 11 o'clock in the morning, if possible, so that it may be published in the edition of the same day. The information obtained after our first edition is closed, must be handed over to the staff of our editorial office prior to 5 o'clock in the afternoon of the same day. The Respondent later instructed Fernandez to obtain information only as to cases he considered important. Also by memorandum on July 25, 1950, the Respondent's general manager, Hector Cintron Ayuso, advised Fernandez that, . .. your hours of work are as follows : Sunday: 8:45 A. M. to 12:45 P. M. Monday to Thursday : 8:45 A. M. to 12:00 N. 1: 30 P. M. to 5: 15 P. M. Friday : 8: 45 A. M. to 12: 00 N. 1: 30 P. M. to 6: 15 P. M. This time schedule cannot be altered and you should not work more than forty hours a week, unless you receive an authorization from your im- mediate chief or from the undersigned. In the card index at the entrance of the office of the Administration of this daily there is a card with your name so that you may mark it when you arrive and when you leave your work every day. Ayuso later advised Fernandez that he did not have to mark his card at the precise times indicated in this schedule. Burgos sent another memorandum to Fernandez on July 28, 1950, stating in effect that Fernandez had reported in on July 27, but left immediately after- EDITORIAL "EL IMPARCIAL" INC. 15 ward without first going to the editorial room as he should have done and was required to do daily, and that this had necessitated sending another reporter on a noncourt assignment originally intended for Fernandez because the courts were closed on July 27. Fernandez replied to this memorandum by one of his own to the effect, and which was substantially corroborated by Burgos himself, that after Fernandez left that morning Fernandez was engaged in obtaining information in connection with his regular assignment. Fernandez also stated, among other things, that he had never before been instructed to report to the editorial office each day, but that he had been doing so nevertheless. Again on August 4, 1950, Burgos advised Fernandez by memorandum that he had failed to report three important news items arising in the courts and that he was also failing to carry out instructions "to bring every day a complete list of cases filed and set in the District Court." Fernandez replied by mem- orandum on August 6 explaining his handling of the afore-stated three news items, and stating that he had been further instructed to obtain information only as to cases meriting attention. Fernandez further explained and testified without contradiction to the effect that there are six district attorney offices all of which release daily information, two clerks offices which handle hundreds of cases daily,,two marshalls offices, three criminal courtrooms, and five or six civil courtrooms, and that one man could not possibly cover all these news sources without missing some newsworthy items. Fernandez further explained without contradiction that he could not possibly copy all the complaints that are filed daily in the clerk's office even were he to be relieved of all other court assignments. Two days later, on August 9, 1950, another memorandum from General Man- ager Ayuso to Fernandez noted that you are not keeping the time schedule which has been assigned to you. In the morning you are arriving prior to 8: 45 A. M. On Tuesday you did not mark your card at noon nor at 1: 30 P. M. On Friday you arrived late in the morning and in the afternoon you left after 6 : 45 P. M. Fernandez' reply to his memorandum stated that ... I am marking in the form you indicate, and in accordance with the explanations you gave me in your office that I could mark the card with a difference of a few minutes ; That day, Tuesday, I was authorized by Mr. Burgos not to mark (the card) as there was an important hearing in court and, upon asking him for instructions, over the telephone, he authorized me not to mark (the card). I do not deny that I arrived late, which was due to the bus service, as I left home at the same hour at which I leave every day. In the afternoon, I was in court, covering the divorce cases, which constitute the last news of the day, until after 6 o'clock. That explains why I marked at that hour, as I could not leave the information. And again by memorandum dated August 30, 1950, Ayuso called Fernandez' attention to the fact that he had not been marking his card "in accordance with the time schedule which was assigned to you under day of July 25th, 1950," and Ayuso cited specific occasions. The Respondent testified in this connection that in view of applicable minimum wage laws, it was important that the time cards of employees show no more than 40 hours weekly. Fernandez' reply to this memorandum is also part of the record in this case. 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On September 6, 1950, Ayuso summoned Fernandez to Burgos' desk in the editorial room, a fairly large place in which approximately 15 employees were present at the time, and he thereupon criticized Fernandez for not punching his time card according to the time schedule given him. Ayuso and Fernandez became somewhat excited in discussing the matter ; both raised their voices, each claiming at the hearing that the other was the first to do so. Ayuso testi- fied that there came a point in the conversation when he told Fernandez that Fernandez would have to punch the time card in order to continue working, whereupon Fernandez replied, "Well, if you want to, I will leave," to which Ayuso stated, "Well, if you want to, leave." Ayuso further testified that Fernandez repeated several times, "Well, if you want to, I will leave," and that Ayuso finally told Fernandez, "Yes, go, you are fired." Fernandez then collected his belongings and he and Ayuso left the editorial room together. Ayuso testified that when "we were walking out near the door of the administration offices then he [Fernandez] told me that if I wanted him to, he would continue working, and I told him no, he had been disrespectful to me in the editorial room in front of all the employees, and I couldn't permit him to continue working there." In testifying precisely how Fernandez had been disrespectful to him, Ayuso stated that Fernandez "raised his voice. He told me that if I wanted he would leave, as if trying to force me to fire him ; in the way he spoke he was disrespectful. He spoke strongly and he said, `Well, if you want to, I will leave,' and I told him if he wanted to he could leave. I raised my voice too." The Respondent admitted at the hearing that deviation from time schedules was an oft-repeated occurrence of which many, if not all, employees were equally guilty, and that no employee has ever been discharged for this reason. The record also shows, according to Fernandez' uncontradicted testimony, that while his employment with the Respondent had begun in 1944, the Respondent did not criticize his work until labor organizational activities began in 1949. Conclusions The General Counsel contends that Fernandez had at all times performed his duties despite the Respondent's carefully timed memoranda and that the Respond- ent thereby "sought to entrap [Fernandez] . . . in some kind of violation, whatever it might be, in order to be able to rid the Respondent of an active mem- ber of the Union." The Respondent on the other hand asserts, as its final position, that the disrespect toward Ayuso on September 6 motivated the discharge, and it expressly abandoned the portion of its answer referring' to alleged infrac- tion of its instructions to him, including the matter of time schedules. Insubordination is indeed a lawful reason for discharge. But I do not con- sider the test of insubordination in this case to be whether or not Fernandez was first to raise his voice during the September 6 discussion with Ayuso in the presence of others or whether Fernandez told Ayuso-once, twice, or thrice- that he would leave if Ayuso wanted him to. Viewing the entire history of the case we have Fernandez, then an employee of more than 4 years' standing, sum- marily discharged in 1949 because of union membership and activities after he ignored warnings to discontinue such activities. Upon his reinstatement he is told not to discuss the Union or any other matters with employees ; however he continues his officership in the Union. Then follows a barrage of memoranda which the Respondent submits in support of the second discharge, but which memoranda and the matters contained therein admittedly are not the reason, or even a reason, for the discharge. It appears, moreover, that much of the criticism is unfounded, as it was on the occasion of the first discharge, and that 41)ITORIAL "EL IMPARCIAL" INC. 17 not until -the formation of the Union in 1949 did Fernandez begin to receive criticism of his work. Rather than Fernandez studiously attempting to violate the Respondent's instructions, as the Respondent's answer averred before such defense was abandoned , I find that the Respondent has studiously goaded Fernandez, thus continuing the pattern of conduct toward him as described in the earlier proceeding . I further find that Fernandez ' own conduct toward Ayuso on September 6 was not such as would cause the Respondent to dis- charge him ; and if this conduct be called insubordinate it was the direct result of provocation stemming from the Respondent's animosity toward the Union for which the Respondent, not Fernandez , is responsible. I find that the Re- spondent did not discharge Fernandez because of his .conduct on September 6, but because of his union 'membership and activities . By discharging Fernan- dez on September 6, 1950, I therefore conclude that the Respondent has violated Section 8 (a) (1) and (3) of the Act. The complaint alleges other specific violations of Section 8 (a) (1) of the Act. However, the General Counsel failed, upon request, to direct the Trial Examiner's attention at the hearing to evidence supporting these additional allegations, and I find in any event that there, is no substantial record support for them. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent described in Section III, above, occurring in connection with the Respondent's operations described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and Territories, and such of them as have been found to constitute unfair labor practices tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor prac- tices, I shall recommend that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. I shall recommend that the Respondent offer to Ismael Fernandez immediate and full reinstatement to his former or a substantially equivalent position 8 without prejudice to his seniority or other rights and privileges and make him whole for any loss of pay suffered by him as a result of the discrimination by payment to him of a sum of money equal to the amount he would have earned from September 6, 1950, the date of his discriminatory discharge, to the date of offer of reinstatement less his net earnings' to be computed on a quarterly basis in the manner established by the Board in P. W. Woolworth Company, 90 NLRB 289, 291-294. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other such period. It will also be recommended that the Respondent make available to the Board, upon request, payroll and other ,records to facilitate the checking of the amount of back pay due.' In view of the nature of the unfair labor practices committed, I shall also recom- mend that the Respondent cease' and desist from infringing in any manner upon,the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following : 8 The Chase National Bank of, the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. + Crossett Lumber Company, 8 NLRB 440 , 497-498. 8 F W. Woolworth Company, supra. 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. The Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act. 2. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication in this volume.] EAST DENVER & LAKEWOOD PLUMBING & HEATING Co. and UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, LOCAL UNION No. 3, AFL, PETITIONER' and DRAIN LAYERS LOCAL UNION No. 331, INTERNATIONAL HOD CARRIERS BUILDING AND COM- MON LABORERS UNION OF AMERICA, AFL, PETITIONER. Cases Nos. 30-RC-713,30-RC-716. May 6,1952 Decision and Order Upon petitions duly filed, a consolidated hearing was held before Harry Irwig, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affil inctl. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel. [Chairman Herzog and Members Styles and Peterson]. Upon the entire record in this case, the Board finds : The Employer repairs, remodels, and installs plumbing and heating systems in Denver, Colorado, and the surrounding territory, within a radius of approximately 75 miles. During 1951, the Employer's total purchases of supplies and materials exceeded $70,000 in value, of which approximately $50,000 was manufactured outside the State and purchased from Denver suppliers. The Employer's sales during the same period were made entirely within the State. The value of goods and services supplied to commercial customers during the year did not exceed $500, although the Employer received $18,000 from the supply of goods and services in the construction of a cottage court, which may serve the tourist trade. The Employer contends that its business is too remotely related to commerce for the Board to assert jurisdiction. Inasmuch as the Em- ployer's operations do not meet any of the criteria established by the Board for the assertion of jurisdiction, we agree that it would not 1 This Petitioner requested that it also be identified as being sometimes called Denver Unity Local No. 3, Plumbers and Gas Fitters United Association. 99 NLRB No. 3.