Lozano Enterprises

128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 8 (b) (4) (B) is not violated 'if the conduct complained of is primary and not otherwise unlawful. The statements and conduct of Respondents ' representatives relied on by the General Counsel to show an unlawful object, in my opinion are entirely compatible with the Respondents' avowed lawful objectives , and viewed in their proper context-the entire situation leading up to and surrounding the work stoppages-do not establish , by a predominance of evidential weight, an unlawful object. If the work stoppages were for a lawful object , it follows that the threats to institute such stoppages were also lawful . I shall recommend dismissal of the complaint.4 CONCLUSIONS OF LAW 1. PMA, its employer members, Seattle Stevedore , American Mail , and Mobile Crane, are each of them employers within the meaning of Section 2(2) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent ILWU, Respondent Local 19, and Engineers are each of them labor organizations within the meaning of Section 2 (5) of the Act. 3. The Respondents have not engaged in any of the unfair labor practices alleged in the complaint. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, I recom- mend that the Board issue an order dismissing the complaint in its entirety. The General Counsel's appropriate citation of Food Employer'.s Council, Inc., .supra, has been studied and the parallel between the factual situations Is Impressive. I dis- tinguish the present case because, somewhat due to the position taken by PMA, the alleged secondary employers , I regard the evidence of primary activities much stronger here. Also, I think before finding a violation here the Board may want to consider the implications of the retention in the Landrum -Griffin amended Act of the proviso that Section 8 ( b) (4) not be construed to limit primary strikes "not otherwise lawful," and the legislative history accompanying the retention of the proviso . 1 Legislative History of the Labor-Management Reporting and Disclosure Act of 1959, p. 942 . The Board's de- cision having been issued after the Landrum-Griffin enactment , though based on the Act prior to amendment , cannot be said to have been considered by Congress as incorporated in the body of "Present rules of law permitting picketing at the site of a primary labor dispute." The product boycott cases relied on by the General Counsel I consider in- apposite , for they involved the refusal of employees to work on the nonunion products of other than their own employers, products which they would not themselves manu- facture in the course of their employment . The threat of displacement in the normal course of their employment was remote and posed no violation of their contractual rights. Wa.shington-Oregon Shingle Weavers' District Council , etc. (Sound Shingle Co.), 101 NLRB 1159, enfd . 211 F. 2d 149 (C.A. 9) ; Local 1976, United Brotherhood of Carpenters etc.. (Sand Door & Plywood Co .) v. N.L.R.B., 357 U.S. 93, enfg. 113 NLRB 1210. Lozano Enterprises and Jose Nabor Villasenor. Case No. 21-CA- 4513. May 15, 1962, DECISION AND ORDER On March 5, 1962, Trial Examiner David F. Doyle issued his In- termediate Report in the above-entitled proceeding finding that the Respondent had engaged in and is engaging in certain unfair labor practices and recommending that it cease and desist therefrom and. take certain affirmative action, as set forth in the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a_brief in support thereof. 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 [Members Rodgers, Fanning, and Brown]. . 137 NLRB No. 15. LOZANO ENTERPRISES 129 The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions and the brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. ORDER The Board adopts the Recommendations of the Trial Examiner. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding came on regularly to be heard by David F. Doyle, the duly desig- nated Trial Examiner, at Los Angeles, California, on October 30 and 31, 1961, on complaint of the General Counsel and the answer of Lozano Enterprises, herein called the Company or the Respondent.' The complaint, in substance, alleged that the Company had (1) discriminatorily discharged Villasenor, the Charging Party, on or about August 23, 1961, in violation of Section 8(a)(3) of the Act, and (2) interfered with, restrained, and coerced its employees by certain acts and conduct of Foreman Andres Laguna and by Publisher Ignacio E. Lozano in violation of Section 8(a)(1) of the Act. The answer of the Respondent denied the commission of any unfair labor practices. At the hearing the parties were represented by the counsel or consultants who were afforded full opportunity to present evidence, examine and cross-examine witnesses, and to present oral arguments and briefs on the issues. From my observation of the witnesses, and upon the entire record in the case, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF LOZANO ENTERPRISES It was stipulated by the parties, and I find, that Lozano Enterprises is a California corporation with its principal office and place of business at Los Angeles, California, where it is engaged in the publication, sale, and distribution of La Opinion, a daily newspaper in the Spanish language. The newspaper subscribes to the services of United Press and International News Service and advertises nationally sold products. In the course and conduct of its newspaper operations, the Company annually re- ceives a gross income in excess of $200,000 and annually purchases goods and ma- terials directly from points outside the State of California valued in excess of $50,000. I find that the Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It was also stipulated by the parties, and I find, that Los Angeles Typographical Union No. 174, International Typographical Union, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. HI. THE UNFAIR LABOR PRACTICES A. Background; stipulated facts It is undisputed that on South Main Street, Los Angeles, California, the Company maintains offices and a newspaper printing establishment devoted to the publication, sale, and distribution of La Opinion. At its plant, it employs a number of men who staff the composing room, pressroom, and stereotype room. It also employs such other editorial employees, mailroom employees, truckdrivers, and janitors as are usually found in a newspaper establishment. It was stipulated by the parties that Ignacio E. Lozano is the president of the 1 The charge was filed on August 28, 1961, and complaint issued on September 28, 1961. 649856-63-vol. 137-10 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company and publisher of the newspaper and that Andres Laguna is a supervisor, within the meaning of the Act, in charge of the linotype operators and other employees in the composing room It is likewise undisputed that in April 1961 the Union initiated efforts to organize the employees in the composing room of the Company. In June of that year the Union demanded recognition from the Company, and shortly thereafter both the Company and the Union filed petitions for a representation election.2 On October 19, 1961, the Board issued its Decision, Direction of Election, and Order in Cases Nos 21-RC-7289 and 21-RM-733 (not published in NLRB vol- umes). In Case No. 21-RC-7289, the Board found that the employees of the Company "in the composing room, press room and sterotype room," and excluding all other employees, composed a unit appropriate for the purposes of collective bargaining, and ordered that an election be held in the unit. This election was scheduled to take place in November 1961. The same Decision, Direction of Elec- tion, and Order dismissed the petition in Case No 21-RM-733. It is against this background of the Union's organizational campaign that the conduct, of which the General Counsel now complains, is alleged to have occurred. B. The union activities of Villasenor; his conversations with Foreman Laguna; his discharge by Laguna The witnesses presented by the General Counsel to sustain the complaint were various members of the composing room staff. Since these men were more fluent in the Spanish language, most of them testified through an official interpreter. This will account for the strangeness of idiom which appears throughout the transcript of testimony. It is undisputed that Jose Nabor Villasenor, the Charging Party herein, was hired by the Company as a linotypist in February 1960, and discharged in the course of a conversation with Foreman Laguna on August 23, 1961. At the time of the discharge, Laguna presented a discharge letter to Villasenor. This letter dated August 23, 1961, is written on the stationery of La Opinion and reads as follows: 3 Mr. JOSE NABOR VILLASENOR: It is with regret that this letter is written to notify you that you are indefinitely suspended from your work. The lack of efficiency in the performance of the job assigned to you, as a linotype operator, where it has been found that your production does not meet with the expected level in relation to the rate of wages paid; your apparent disregard of the continuous recommendations of our Editorial Room members, and, finally, numerous complaints about the way time is distracted during your shift, either by talking with fellow-workers or by often engaging in telephone conversations-all of this greatly detrimental to the normal general tasks of the Department-, have determined our decision to dispense with your services. Please accept our appreciation for the time you worked with this organization. LA OPINION, (S) Jose E. Bravo, JosE E. BRAVO, Manager. Villasenor testified as a witness for the General Counsel. He testified with every appearance of frankness, fairness, and accuracy. I credit his entire testimony. Villa- senor testified that in April 1961 he and another linotypist by the name of Roberto Ocariz joined the Union' Upon joining, Spencer, the business representative of the Union, requested the two men to assist the Union's organizational efforts by soliciting authorization cards for the Union from their fellow employees in the composing room. Villasenor and Ocariz agreed to assist the Union and thereafter .they invited all their fellow employees to join the Union. Villasenor also testified that during the period between May and August 5 he had about six separate conversations with Foreman Laguna about the Union. All of these conversations took place in the linotype de- partment of the newspaper. In all of these conversations Laguna told him "not to join the Union, that it wasn't convenient because we were going to be exploited." Despite these conversations, Villasenor remained loyal to the Union. On Wednesday, August 23, Villasenor arrived at the linotype room at 6 p.m. to begin his work for the night. Immediately, Foreman Laguna took him aside and told 2 The company petition was docketed as Case No 21-RM-733, and the union petition as Case No 21-RC-7289 3 This letter is General Counsel's Exhibit No. 3 in evidence * Ocariz is sometimes referred to in the transcript as Ocaris. 5 All dates In this section of the report are in the year 1961. LOZANO ENTERPRISES 131 him that, except for Villasenor and Ocariz , all the employees had agreed to leave the Union . Laguna then said that if Villasenor would agree to leave the Union, he would immediately start earning $2.50 per hour, at which rate he would earn a hundred dollars per week for 40 hours' work, and that Villasenor would be assured of a job for the rest of his life. Laguna said that they had worked happily in the past without any union and that the only thing the Union did was to make promises and exploit the workers. Villasenor replied that he did not accept Laguna's invitation to resign from the Union since he joined the Union because of his convictions, and that if the Company wanted to offer him anything, they could offer it to him through the Union and he would accept it. At that point in the conversation Laguna said that "he just wanted to help" Villasenor, and then he handed Villasenor the discharge letter mentioned above. When Villasenor opened the letter he saw that it was written in English so he asked Laguna to read it to him in Spanish . Laguna told him to get someone else to translate the letter. Villasenor then said he would get someone to translate the letter as soon as he finished work. Laguna said that Villasenor could not work there anymore. Villasenor then asked if he was fired and Laguna replied in the affirmative. Villasenor asked Laguna why he was fired, and Laguna replied that he was fired because he talked more than 2 hours every day on the tele- phone. Villasenor said that statement was false, and that he was going to take the letter to the Union. Laguna replied that he could do anything he wanted with the letter, but then Laguna added that Villasenor should think the matter over seriously, and if Villasenor decided to leave the Union, to come and talk to Bravo, who would arrange for him to start earning $2.50 an hour right away. Villasenor replied that he wouldn't change his opinion, so he took his lunch box and went to the Union with the letter. Villasenor testified that with the discharge letter he was given his final check, although it was Wednesday, and the workweek at La Opinion ended on Thursday, with Friday the weekly payday. Villasenor further testified that he was never warned that his work or that any of his conduct was not satisfactory to Laguna or any other supervisor . Villasenor also said that he was paid an amount equal to 1 or 2 hours' wages each week during July, although he did not actually perform work for those hours of pay which were given to him as a reward or bonus for his good work. Villasenor's wage records indicate that he received pay for not less than 37 hours of overtime work during August 1961. C. Interference, restraint, and coercion Roberto Ocariz, another linotypist, testified credibly and to some extent corrobo- rated the testimony of Villasenor . Ocariz testified that in the latter part of July he had a conversation with Foreman Laguna. On this occasion Laguna gave him to understand that the men should leave the Union and if they continued to work as they were working, as a family, they wouldn't need to pay dues or expenses to the Union and Laguna would be able to obtain an increase of 50 cents per hour for the employees . Ocariz also testified that Foreman Laguna had praised Villasenor's work as late as July 1961. Javier Martinez, another linotypist , testified credibly that, Villasenor had solicited his support for the Union in the spring of 1961 and had invited Martinez to a meeting at the home of Ocariz in May. This witness also stated that in June, Foreman Laguna had made the comment to him that Villasenor was "one of the best operators he had ." Martinez also testified that about the time the Union began its organiza- tional campaign , Laguna asked Martinez if he was interested in the Union. Mar- tinez testified further that on August 26 he had a conversation with Laguna in which the Foreman told Martinez to forget about the Union and if he left the Union that he would have permanent work . Martinez replied that he was afraid that the Union would sue him if he resigned . Laguna replied that the Company had attorneys and that they would take care of Martinez Regelio Noriega testified credibly that he is the makeup man at La Opinion and that on August 25 he had a conversation with Laguna in the Linotype room. This conversation is reported in the transcript as follows: Mr. Laguna told me, "Last Wednesday I fired Mr. Villasenor because in the office they don't want him here because he is one of the union leaders," and he told me, "Maybe I'm-I have made a mistake . I think the one I should have fired is Mr. Ocariz in place of Mr. Villasenor. And he asked me, "What do you think?" And I said, "You are the boss, you know what to do." 6 Transcript, page 121 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cergio Manzo also testified credibly as a witness for the General Counsel. This linotypist worked exclusively on the night shift and at the hearing the Company claimed that Manzo was a supervisor in charge of the night staff. However, Manzo denied that assertion and with some degree of vehemence. He testified that he had no authority to hire, fire, or direct the work of anybody in the composing room. He said that when the night shift came to work, Foreman Laguna had already portioned out the work for each of the night-shift employees, and that the employees consulted with Manzo only when a machine broke down or some other emergency arose. He said he was not consulted by Foreman Laguna about the apportionment of the work or any other feature of the night-shift's activity. He said that he was paid at the same rate of pay as the other linotypists and that on one occasion when Foreman Laguna went to Tia Juana for 2 days, Laguna left instructions with Manzo as to what each man was to do. Manzo was not paid anything extra for his work during these 2 days. Upon Manzo's testimony, which I credit, I find that Manzo is a rank-and-file employee and does not have supervisory status. Manzo further testified that Villasenor and Ocariz invited him to a union meeting at the home of Ocariz in May 1961. Present at this meeting were Ocariz, Villasenor, Barrera, Martinez, Ramirez, and Manzo. Early in July, Foreman Laguna told Manzo that Lozano, the publisher of the newspaper, wanted to see him in his office. When he spoke to Lozano in the latter's office, Lozano asked him why the men in the composing room had joined the Union. Manzo replied that they had joined the Union "because in reality we earned little." Lozano then asked if the men had any problem within the shop and Manzo replied in the negative. Lozano then asked why the men had not spoken to Lozano before entering the Union and before signing cards for the Union. Manzo replied that the men had joined the Union because the Union "was convenient" to them Lozano asked who had started the Union in the shop. Manzo replied that he did not know. D. The Company's defense In its defense the Company presented the testimony of three witnesses, Dale Spencer, representative of the Union, Foreman Laguna, and Publisher Lozano. Dale Spencer testified that Foreman Laguna joined the Union and attended union meetings. Spencer explained that all the men, including the foreman, had been ac- cepted in the Union on a provisional basis. They were provisional until the Union secured a contract with the Company. At that point the parties stipulated that fore- men are accepted as members by the Union and that foremen have the right to hire and fire and recommend the same as far as members of the Union are concerned Foreman Laguna testified that before July 1961 Villasenor was "a very acceptable- employee," but during July and August his production slowed down. Laguna said that he spoke to Villasenor "no more than three times" about his production. Laguna said that prior to August 1, Villasenor worked approximately 6 hours and in that length of time he made approximately 10 "galleys." However, in the first 2 weeks in August he was changed to fill in for Manzo who was ill and in that position Villasenor worked 9 hours but was making only 11 to 111/2 galleys in the period. Laguna said that this low production continued for approximately 15 to 20 days. On the night of August 22, Villasenor produced 10 galleys in 9 hours. When Laguna reached the plant on the next morning there was no "advance material" prepared, so he checked all the galleys that had been made on the night shift. He found that Villasenor had not performed all the work assigned to him; that, in fact, he had done "very little with the advance." Laguna said that he kept no regular record of how many galleys each man made each day but he kept Villasenor's galleys for the last day of work because on that date Villasenor "did too little." Laguna also testified that on one occasion he had phoned the shop to talk to Villasenor and was told that he was talking on the other line. Also Garcia and Avila, two employees in the editorial department, told him that Villasenor talked a long time on the telephone. Laguna admitted that he never spoke to Villasenor about using the telephone too much He also said that there was no restriction on the use of the phone by employees of the Company. Laguna also said that Villasenor was never given any warning in writing about his low production and, although he was paid for 1 extra hour, this practice was never stopped. Laguna said he was waiting for everything to become all right because he knew that ordinarily Villasenor was a fast worker Laguna also testified that Lozano and Bravo had both instructed him not to inter- fere in any way with the employees joining the Union. He said that before he joined the Union he discussed the matter with Bravo and Lozano, telling them that he was seriously thinking of joining the Union. They told him to do as he pleased, so he joined the Union in a happier frame of mind. Laguna said that when he discussed LOZANO ENTERPRISES 133 the Union with any of the employees it was "as a member." He said that he finally discussed Villasenor's low production record with Bravo and they decided that Villasenor had to be discharged. Ignacio E. Lozano, publisher of the newspaper, testified that he talked to Laguna about the Union's demand for recognition He told the foreman that the had retained counsel to deal with the matter and he instructed Laguna that the Company was not permitted to promise any benefits or threaten or intimidate any of the employees in any way in regard to the Union. Later on, Laguna came to Lozano and told him that he was considering joining the Union. He told Laguna to do as he pleased. Lozano testified that around June 1 the Union put out some literature which accused the Company of subjecting the employees to inhumane working conditions and of exploiting the employees. He considered these statements to be false, so he separately invited two of the oldest employees of the Company, Manzo and Cortez, to his office. In addition, a third employee, Ruteaga, asked for an interview. Lozano testified that he told Manzo that he understood the Union represented a majority of the employees and that he had received a copy of the letter which the Union had sent to the employees. He considered this letter unfair to the Com- pany and he felt that he had a right through Manzo to answer some of the Union's charges. He told Manzo that he didn't think that their working conditions were inhumane; and if the men felt that they were being exploited, why hadn't they com- plained to Lozano or to someone else in the management end of the newspaper. Manzo replied that he had joined the Union. Lozano then told him that he had com- plete liberty to do so; that the Company could not tell him to join or not to join. On the next day Lozano had a similar conversation with Cortez, another linotypist. Also, according to Lozano Ruteaga came to him with some personal complaints about Foreman Laguna. These dealt with personal grievances, and Lozano asked if Ruteaga felt that he couldn't have settled those grievances with him and the foreman before he took the step of going along with the Union Ruteaga replied that "it didn't occur to him to do so, and that they figured they were far enough along with the Union, that they had to go along with it." The above summary sets forth the highlights of the testimony, and presents the factual issues in the case. All the testimony, the exhibits, and the briefs of the parties have been considered. Reference to some testimony has been omitted here in the interest of brevity? Concluding Findings As indicated previously, Villasenor, as a witness, was most convincing, and the testimony of Ocariz, Noriega, and the other employees possessed the same persuasive quality. The testimony of these men, which I credit, establishes overwhelmingly that Foreman Laguna discharged Villasenor because of his adherence to the Union and not for any misconduct or inefficiency on the part of Villasenor. Villasenor's testimony establishes that when he reported for work on August 23, 1961, Foreman Laguna told Villasenor that, except for Villasenor and Ocariz, all the employees had agreed to leave the Union. Laguna then promised Villasenor a 50-cent hourly wage increase, a 40-hour week, and a permanent job if Villasenor would leave the Union. Villasenor rejected Laguna's offers and professed continued loyalty to the Union. At that point Laguna handed Villasenor a letter terminating his employment and his final paycheck. Although this was Wednesday, and the workweek of the newspaper ended on Thursday, with Friday the usual payday, Villasenor was discharged forthwith, and not permitted to perform his work on this Wednesday evening. The precipitate nature of Villasenor's discharge ]ends credence to his testimony that he was discharged for refusing to leave the Union, rather than because of any incompetence or inefficiency. Furthermore, Villasenor was paid for 1 or 2 hours, for which he performed no work, as some kind of a bonus for his good work. This practice was never discontinued, which seems most peculiar, if, in fact, Villasenor was not performing his work in a satisfactory manner. In the letter terminating Villasenor's employment, the Company gave several rea- sons for the discharge of the employee. The letter mentions "lack of efficiency," 7At the hearing the General Counsel introduced into evidence as his exhibit No 7, a copy of a letter issued by the Company to all employees on June 19, 1901 The Company also placed in evidence its translation of the same letter, as Respondent's Exhibit No 2 Upon all the evidence, I find that the letter contains no threat of ieprisal or force or promise of benefit, and for that reason cannot be considered as evidence of an unfair labor practice under Section 8(c) of the Act For that reason the letter was not con- sidered by the Trial Examiner in making his findings herein, and is therefore not re- produced in this report 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "lack of production," his "disregard of the continuous recommendations of the edi- torial-room members," "his conversations with fellow employees during working hours," and "his use of the telephone during working hours." In this regard there is absolutely no evidence of Villasenor's disregard of the continuous recommenda- tions of editorial room members; and the proffered proof of Villasenor's excessive conversation with fellow employees and his excessive use of the telephone is scant to the point of absurdity. In the light of all the evidence, the testimony of Laguna as to Villasenor's failure to produce sufficient work I find singularly unconvincing. Laguna's assertion that Villasenor's production slowed down is based upon no, record kept in the ordinary course of business, for no such records were kept. Laguna's assertion is based entirely on what Laguna says were his daily observations. Laguna's testimony is called into question by one admitted fact in this record, in addition to the testimony of Villasenor. Although Laguna paid Villasenor for an hour or two for which the employee performed no work, as a bonus, Laguna did not discontinue this bonus pay at any time, although according to his testimony, he observed that Villasenor's lack of production had continued for approximately 20 days. In the light of all the evidence, I cannot accept the testimony of Laguna. For the reasons stated above, I find that the discharge of Villasenor was discrimi- natory and a violation of Section 8(a) (3) and (1) of the Act. Also according to Villasenor's testimony, Laguna told him on about six occasions between May and August 23, 1961, to abandon the Union. These exhortations of Laguna unlawfully interfered with Villasenor's rights under Section 7 of the Act and were additional violations of Section 8(a) (1) Also, immediately prior to his dis- charge, Foreman Laguna promised Villasenor a 50-cent per hour increase as well as a permanent job if he would renounce his adherence to the Union. This conduct, too, constitutes an additional violation of Section 8(a) (1) of the Act. Upon the credited testimony of the employee involved in each incident, I find that the following additional violations of Section 8(a) (1) occurred (a) On August 26, 1961, Laguna interrogated Martinez about his union activity and promised him permanent employment if be would abandon the Union (b) Late in July 1961, Laguna told Ocariz that Laguna could obtain a wage in- crease for all employees if they would abandon the Union. It is also found on the credited testimony of Cergio Manzo that in July 1961 Lozano directed Manzo to appear in his office, and at that time and place Lozano interrogated Manzo as to why the linotypists were joining the Union and asked Manzo to disclose the name of the employee who was responsible for bringing the Union into the plant. Taking into consideration the fact that a representation petition was then pending before the Board, with an election in the appropriate unit in the offing. I find that Lozano's interrogation also constitutes a violation of Section 8(a)(1) of the Act.8 W. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company as set forth in section IIT, above, occurring in connection with the operations of the Company set forth in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Company has engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action necessary to effectuate the policies of the Act. Having found that the Company has discriminated in regard to the tenure of employment of Jose Nabor Villasenor, I shall recommend that the Company offer to him immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of pay he may have suffered by reason of the discrimination against him by payment to him of a sum of money equal to that which he would have earned as wages from the date of such discrimination to the date of reinstate- ment or a proper offer of reinstatement, as the case may be, less his net earnings during such period; the backpay to be computed on a quarterly basis in the manner established by the Board in F W. Woolworth Company, 90 NLRB 289. 1 will also recommend that the Company preserve and, upon request, make available to the Board or its agents, all pertinent records and data necessary to assist in an analysis and computation of the amount of backpay due. BBallas Egg Products, Inc, 121 NLRB 873, footnote 1, Mid-South Manufacturing Company, Inc, 120 NLRB 230, 232. LOZANO ENTERPRISES 135 Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Los Angeles Typographical Union No. 174, International Typographical Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. Lozano Enterprises is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By discharging and refusing to reinstate Jose Nabor Villasenor because of his participation in union activities, thereby discouraging membership in the above- named labor organization, the above-named Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. By interrogating its employees and by promising them benefits if they would withdraw from the Union the Company has also violated Section 8(a),(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in this case, I recommend that the Respondent, Lozano Enterprises, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Los Angeles Typographical Union No. 174, International Typographical Union, AFL-CIO, or any other labor organization of its employees, by discharging or refusing to reinstate, or in any other manner dis- criminating against employees in regard to their hire or tenure of employment or any term or condition of employment. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the Union 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 activities. 2. Take the following affirmative action which I find will effectuate the policies of the Act: -(a) Offer Jose Nabor Villasenor immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of pay he may have suffered by reason of the discrimination against him, in the manner set forth in the section of this report entitled "The Remedy." (b) Preserve and, 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 analyze the amount of backpay due under the terms of these Recommendations. (c) Post at its plant in Los Angeles, California, copies of the notice attached hereto marked "Appendix." 9 Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being duly signed by the Company's representative, be posted 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. The Company shall take reasonable steps that such notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Twenty-first Region, in writing, within 20 days from the date of receipt of this Intermediate Report, what steps the Com- pany has taken to comply herewith.io ' In the event that these Recommendations be adopted by the Board, the words "A Deci- sion and Order" shall be substituted for the words "The Recommendations of a Trial Examiner" in the notice In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order " io In the event that these Recommendations be adopted by the Board, this provision shall be modified to read "Notify the Regional Director for the Twenty-first Region, In writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is further recommended that, unless the Company shall within 20 days from the date of receipt of this Intermediate Report notify said Regional Director in writ- ing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the Company to take the action aforesaid. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended , we hereby notify you that: WE WILL NOT discourage membership in Los Angeles Typographical Union No. 174, International Typographical Union, AFL-CIO, or any other labor organization of our employees, by discharging, refusing to reinstate, or in any other manner discriminating against them in regard to their hire or tenure of employment or any term or condition of employment. WE WILL offer Jose Nabor Villasenor immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay suffered by him as the result of the discrimination against him. WE WILL NOT in any manner interfere with, restrain, or coerce our employ- ees in the exercise of their right to self-organization , to form labor organizations, to join or assist the above-named Union 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, and to refrain from any or all such activities. All our employees are free to become or remain, and to refrain from becoming or remaining, members of the above-named or any other labor organization. LOZANO ENTERPRISES, 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 Employees may communicate directly with the Board's Regional Office, 849 South Broadway, Los Angeles 14, California, Telephone Number Richmond 9-4711, if they have any question concerning this notice or compliance with its provisions. Local Union 825, International Union of Operating Engineers, AFL-CIO and Wm. C. Ehret. Case No. 22-CC-137. May 15, 1962 DECISION AND ORDER On January 29, 1962, Trial Examiner John F. Funke issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. 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 McCulloch and Members Rodgers and Fanning]. 137 NLRB No. 17.