American Photocopy Equipment Co.

172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD American Photocopy Equipment Company and Joseph Hill and Robert E. Smith and Maeretha Smith and Tommy L. Wheeler. Cases 13-CA-9161, 13-CA-9162,13-CA-9188, and 13-CA-9395 October 30, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS On June 10, 1970, Trial Examiner Benjamin A. Theeman issued his Decision in the above-entitled proceeding finding that the Respondent had engaged in and was engaging in certain unfair labor practices in violation of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. The General Counsel filed cross-exceptions to the Trial Examiner's Decision, a supporting brief, and a brief in answer to the Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. 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 Trial Examiner's Decision, the exceptions, the briefs, and the entire record in this case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner and orders that the Respondent, American Photocopy Equipment Company, Chicago, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified: 1. Substitute the following for paragraph 2(a) of the Trial Examiner's Recommended Order: "(a) Offer to Juan Del Pozo and Lydia Del Pozo immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions without prejudice to their seniori- ty or other rights and privileges, and make them whole in the manner set forth in the section entitled `The Remedy.' " 2. The last indented paragraph of the Appendix is modified to read as follows: WE WILL offer Juan Del Pozo and Lydia Del Pozo immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions without preju- dice to their seniority and other rights and privileges, and make them whole for any loss of pay suffered as a result of our discrimination against them. I Respondent has excepted to some of the credibility resolutions made by the Trial Examiner. It is the Board's established policy not to overrule a Trial Examiner's resolutions as to credibility unless the clear preponderance of all the relevant evidence convinces us they are incorrect. Such a conclusion is not warranted here. Standard Dry Watt Products, Inc., 9.1 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE BENJAMIN A. THEEMAN, Trial Examiner: The complaint as amended 1 alleges that American Photocopy Equipment Company, (Respondent or Apeco), had engaged and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the National Labor Relations Act, as amended, 29 U.S.C. 151 et. seq. (the Act) among other things by failing and refusing since May 27, 1969, to reinstate Juan Del Pozo and Lydia Del Pozo his wife, two of Respondent's employees, to their former or substantially equivalent positions of employment because they had ceased work concertedly and had gone out on strike for the period May 5, 1969, through May 26, 1969, and after they had made unconditional offers to return to work.2 Respondent in its answer admits certain facts3 but denies the commission of the unfair labor practices, and further denies that the Del Pozos made unconditional offers to return. Pursuant to notice, a hearing on the consolidated cases was held before me on March 2, 3, 4, 5 and 6, 1970 in Chicago, Illinois. All parties appeared and were represented by counsel. They were given full opportunity to participate, adduce evidence, examine and cross-examine witnesses and 1 The original complaint issued on November 28, 1969, upon charges filed in Case No. 13-CA-9161 by Joseph Hill; Case No. 13-CA-9162 by Robert E. Smith ; Case No. 13-CA-9188 by Maeretha Smith ; Case No. 13-CA-9395 by Tommy L. Wheeler. The earliest charge was filed June 5, 1969. An order consolidating the cases issued on November 28, 1969. The complaint was again amended on February 13, 1970. 2 The final amended complaint listed 16 employees in this category. Prior to the opening of the hearing a settlement was reached as to 14 employees. At the hearing, the complaint was again amended to leave only the issues involving the reinstatement of the Del Pozos. 3 Respondent, among other things, admits that an economic strike occurred on May 5, 1969 at Apeco; and that the Del Pozos have not been reemployed. 186 NLRB No. 33 AMERICAN PHOTOCOPY EQUIPMENT 173 argue orally. The General Counsel and Respondents submitted briefs 4 that have been read and considered. Upon the entire record in the case and from my observation of the witnesses5 I make the following: FINDINGS OF FACT I. BUSINESS OF RESPONDENT Respondent, a Delaware corporation, maintains its principal office in Evanston, Illinois. There it is, and has been at all times material herein, engaged in the manufacture and sale of copying machines, other business machines, and related products. During the course of the past fiscal or calendar year, a representative period, Respondent manufactured, sold, and shipped finished products valued in excess of $1,000,000 from its plant in Evanston, directly to customers located in States of the United States other than the State of Illinois. It is found that Respondent is and has been an employer within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION At Apeco, some of the supervisors of the Cuban employees spoke Spanish well enough to converse with the Spanish- speaking employees. In September 1968 the Union started an organizational campaign at Respondent's Evanston plant. On May 5, 1968, after a union vote on the subject, the Union struck Apeco and picketed the plant. Some of the pickets were employees. Others were nonemployees. All wore the usual strike signs. The Cuban employees were split, some stayed at work, some picketed. The strike lasted through May 26. By that time about 120 employees were still out. Of these some 21 or 22 employees had been permanently replaced. On May 27, as agreed with the Union, Apeco took back all but the replaced strikers. Walsh, personnel manager for Respondent, on direct testimony stated that Apeco did not call the 22 back because they were "those employees that were reported to us to have carried on either violence on the picket line, or what we considered very abusive and vile language." Juan and Lydia Del Pozo were among those not called back. C. The Conduct of the Del Pozos on the Picket Line Industrial Workers Union, Local #8, affiliated with the Laborers International Union (the Union) is and has been a labor organization within the meaning of Section 2 (5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The issue as indicated above is whether the failure to reinstate Juan Del Pozo and his wife Lydia Del Pozo, both economic strikers, constitute violations of the Act. To resolve that issue requires a determination of two questions: (a) Did the Del Pozos make an unconditional offer to return; (b) Did Apeco fail to reinstate the Del Pozos because of Juan's misconduct on the picket line .6 B. The Strike at Apeco Many of the Apeco employees involved in this proceed- ing, including the Del Pozos, are recently from Cuba. They are Spanish speaking. The majority speak English very poorly and their understanding of spoken English varies. Testimony was received by the aid of an interpreter. Juan Del Pozo speaks some English, his wife not at all. At the request of counsel for Respondent, Juan started testifying in English, but difficulties promptly arose. Respondent's counsel withdrew his request and the interpreter was used. 4 The General Counsel moved, at the same time, to correct the transcript . No objections having been received, the motion is granted. s -The testimony of all witnesses has been considered. In evaluating the testimony of each witness, demeanor was relied upon. In addition, inconsistencies and conflicting evidence were considered. The absence of a statement of resolution of a conflict in specific testimony or, of an analysis of such testimony, does not mean that such did not occur. See Bishop & Malco, Inc., d/b/a Walker's, 159 NLRB 1159, 1161. Further, to the extent that a witness is credited only in part, it is done upon the evidentiary rule that it is not uncommon "to believe some and not all of a witness' testimony." N.LR.B. v. Universal Camera Corporation, 179 F. 2d 749, 754 (C.A. 2). 6 Respondent at the hearing asserted as an additional defense that Juan Juan Del Pozo started working at Apeco on January 23, 1968. His wife started in July 1968. At the time of the strike Juan was a group leader working in the warehouse as an order filler; 7 Lydia worked as a packer of paper rolls. The Del Pozos were union members and had signed union cards. Both went on strike on May 5. Juan was on the picket line every day of the strike. Lydia picketed the first week. The rest of the time, she remained at home. To understand the picket line conduct, a brief description of the Apeco factory is necessary. The main entrance to the Apeco for general employees was on the west side of the building. Opposite this entrance on the other side of the street was an open parking lot used by the employees to park their cars. The practice of the employees was to walk the distance between the lot and the entrance on arriving at or leaving from work. The parking lot was unfenced. There was another employee entrance on the east side of the Apeco,' building. This led to a parking lot that was inside the fence enclosing the company grounds. Starting with the morning of May 5, the Union formed a picket line at various points around the Apeco building with a larger group at the west entrances The first 3 days of the strike the employees walked through the picket line. As they did so heated exchanges in Spanish and English occurred. Beginning with the fourth day Apeco arranged that the working employees arrive in automobiles, keep the windows of their cars closed to avoid contact with the Del Pozo was responsible as a leader for violence and misconduct of other strikers on the picket line. Respondent did not pursue this defense with any vigor; nor was the defense mentioned in its brief. The record shows that Juan Del Pozo was used by the Union as a translator, or transmitter of instructions to other Spanish-speaking strikers because of his better command of English. Respondent failed to show that he was a director or leader of the pickets; that any violence or misconduct was committed at Del Pozo's command or request; or that he ratified any violence. It is concluded that this defense has no merit. T Del Pozo was not a supervisor. There is no issue on this question. 8 Early that morning some violence occurred at the west entrance that is not pertinent to this hearing. 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pickets, enter the east entrance, park in the east parking lot, and then enter the building. The testimony regarding verbal exchanges after the third day between employees in the closed cars and the pickets is inconclusive and no findings thereon are made. Respondent contends that Juan Del Pozo during the first 3 days of the strike while on the picket line used vile and abusive language to the working employees as they entered the plant. The words spoken in Spanish were "hijo de puta" (son of a whore), "maricon" (homosexual). Witnesses testified to the fact that they heard Del Pozo use these words. Del Pozo testified that he used other words but at no time did he use these. In this instance Del Pozo is not credited. It is found that he did use the words while on the picket line. It is further found that other pickets used these words also. As stated above numerous verbal exchanges occurred the first 3 days between the working employees and the pickets. The language used on both sides was ripe and familiar and spoken with an intent to demean the other.9 It is found that this type of language was used by both sides; that the working employees also used the words "hijo de puta" and "maricon." As to the verbal exchanges, it is found that some were started by the pickets and others were started by the working employees. Considerable testimony went into the record concerning the insulting and dishonorable nature these words would have, or did have when directed to a Cuban and the combustible effect their use would have among Cubans. However, no special significance or weight is given to this testimony in view of (a) the general usage of these words by the strikers and working employees during the strike, many of whom were working with each other at Apeco at the time of the hearing; and (b) the finding hereafter made that Apeco did not consider conduct on the picket line as a factor in the replacement or reinstatement of the strikers. There is no dispute over the conduct of Lydia Del Pozo on the picket line. The first week of the strike she picketed. The next 3 weeks she remained at home. Apeco admits that she was guilty of no improper conduct. Apeco contends that its refusal to reinstate was based on the fact that her husband, "Juan Del Pozo was such an outrageously violent and insulting individual" it would just not [have been] tenable, possible to take her back and not him." D. Apeco Early in the Strike knew, or should have known that Del Pozo used Insulting and Degrading Language on the Picket Line Starting with May 5, Apeco held daily meetings with the working employees at which the employees reported picket line occurrences and at which Apeco advised the employees how to behave relative to the pickets. The working employees on other occasions reported to their supervisors any unusual happening that occurred on their way to and from work including the language used by the strikers and the names of those who used it.10 Apeco by the use of forms obtained in writing the names of strikers who used what was called in the form "threatening" language to the working employees. Walsh testified that the names of seven 9 Some other expressions were: Communist, pendejo (idiot), kiss my black ass, bitches, whores, lambs, mercenaries, slaves, and others. 10 The Cuban employees reported orally to the Spanish-speaking strikers occurred most frequently as such offenders. One of them was Juan Del Pozo. Accordingly, it is found that from the early days of the strike, Apeco knew or should have known that Juan Del Pozo was a striker who, while on the picket line, used insulting and degrading language to the working employees as they went through the picket line. E. The Discontinuance of the Strike,- the Reinstate- ment Agreement between Apeco and the Union on May 27, 1969 About 2 or 3 days before the end of the strike Loewenberg, General Counsel for the Union, called and spoke to Curley, General Counsel of Apeco.11 Loewenberg was seeking to end the strike and to get the employees back to work as quickly as possible. Curley said there would be some problem with some of the employees because "production had been interfered with and [Apeco] wouldn't be able to put them back all at one time." Further, Curley stated that an undetermined number of the strikers had been permanently replaced; that the precise number would be checked out with his production people. This was one of several conversations on this subject that occurred between Loewenberg and Curley. Misconduct on the picket line was neither discussed nor touched upon. On May 27 representatives of Apeco and the Union met at the Board's Chicago offices. Present for Apeco were William P. Treacy, their attorney, General Counsel Curley and another vice president, Clayton Rothbart. Present for the Union were Joseph Cicero, their attorney, and Business Agent John Serpico. The purpose of the meeting was the settlement of the strike. The parties felt that there were issues that would best be resolved without the presence of a Board representative. After he left the meeting, Cicero told Treacy that "the obvious and first thing was the orderly return to work of the people on the picket line and also those who were at home and not picketing.. . . When can we tell them they were going back?" Treacy said this presented a problem to Apeco because of two issues: (a) some people were permanently replaced; and (b) prod- uction line interruption would cause a 2 or 3 week delay in the return of the strikers who had not been replaced. Apeco as in the conversations with Loewenberg was unable to name the employees permanently replaced or the exact time that production would be resumed. Apeco said this data needed to be checked. The discussion continued. During it, the Union urged Apeco to take back all the strikers. Apeco did not agree. Negotiations continued until an understanding was reached. Then it was decided to put the agreement in writing. Treacy started to do so. During the writing, Cicero demanded that the workers permanently replaced should be given preferential hiring treatment. Treacy answered, "only to the extent of the law." Then, Cicero suggested the language contained in the last two sentences of paragraph 4 of the memorandum quoted below. The final agreement initialled by both parties provided for the mutual supervisors. 11 Curley was also vice president-secretary of Apeco, and was present at the last few days of the hearing. AMERICAN PHOTOCOPY EQUIPMENT 175 withdrawal of pending unfair labor practice charges; for an NLRB election on June 6, 1969; 12 and for a nonpicketing agreement by the Union. As to the return of the employees the agreement stated: Apeco shall call back picketing employees as needed by Apeco, it being understood that all except those permanently replaced shall be called back and in no less than the next three weeks. All those permanently replaced, if they apply for employment at Apeco, shall not be discriminated against. On the contrary they will be accorded all rights provided by the law. Though not mentioned in the agreement, the Union advised Apeco that it would inform the employees "permanently replaced of their rights and what they could do about" them. Several times during the meeting Cicero asked Curley for the names of the employees Apeco planned not to take back. Curley answered- that no list had yet been prepared; that the Company did not know who had been replaced; that certain key people had been replaced whose work had to be done while the strike was on; and when the list was prepared he would mail a copy to Cicero. During the May 27 discussion improper conduct on the picket line was mentioned once. The reference was to "the question of what was going to happen on criminal charges" brought against Serpico.13 As in the discussions with Loewenberg, misconduct on the picket line by employees of Apeco was neither discussed nor touched upon. F. The Del Pozos are Permanently Replaced By letter dated May 29, 1969 Apeco sent to the Union the list of the "names of [22] people who were permanently replaced" after the strike. The names of Juan Del Pozo and his wife Lydia were included. In a statement delivered to a Board representative in the latter part of June, 1969, the replacement date listed for Juan was May 5, 1969. No replacement date for Lydia is shown, but the name of her replacement was given. The replacements for the Del Pozos were working at Apeco at the time of the hearing. On June 3, 1969, Apeco sent a letter to each of the replaced strikers including Del Pozo and his wife Lydia 14 (1) advising them that their job at Apeco had been filled with a permanent replacement; (2) enclosing a conversion form should they be interested in converting their group hospital and surgical program; and (3) advising that they would get a check later representing their contribution if they were a member of Apeco's profit sharing program.15 12 The election was held. The Union lost. 13 Not in issue in this proceeding. Serpico was a nonemployee of Apeco. 14 The General Counsel contends that this letter constituted a discharge of the Del Pozos and was a separate 8(a)(3) violation of the Act. This is error. Under N.L.R.B. v. Mackay Radio and Tel. Co., 304 U.S. 333, 346, Respondent lawfully could replace the Del Pozos. There is no showing that it did not do so. As a matter of right as replaced employees, the Del Pozos were entitled to convert their health insurance programs, and were entitled to the return of their contributions paid into the Apeco profit sharing program. The letter of June 3 advised the Del Pozos of their permanent replacement and of the rights which had accrued because of it. Absent additional facts the June 3 letter does not constitute a violation of the Act. G. The Del Pozos Unconditionally Apply for Reemployment About 1 or 2 weeks after the strike McGovern called the Del Pozos on the telephone. McGovern spoke to Juan; stated Apeco was making a survey and that he wanted to know whether Mrs. Del Pozo wished to return to work. Mrs. Del Pozo through Mr. Del Pozo answered "yes." Because Mrs. Del Pozo doubted that the call had come from McGovern, about a week later Mr. & Mrs. Del Pozo went to Apeco and spoke to McGovern. McGovern told them that his orders were "only to ask" if she wanted to come back. Mrs. Del Pozo gave him the "yes" answer. Del Pozo then asked McGovern "what about me." McGovern told Juan, "I don't know about you." About the middle of June 1969, Juan visited Apeco.'6 There he met Walsh, personnel director for his assistant McGovern. Walsh and Del Pozo spoke. There is a conflict in testimony about this conversation which is resolved in favor of Del Pozo. Walsh and McGovern testified in effect that Del Pozo told them that he then held a better job, where he was making "better money"; that he would not return to Apeco unless he were given a raise and a promotion. Del Pozo testified that he did not discuss going back to work at Apeco; that he did tell Walsh he regretted not working for Apeco because he was happy there; that he asked Walsh why "Apeco call all the other persons to return to the job and no call me?" To which Walsh replied "I don't know"; that in response to a question of Walsh's he stated he was satisfied with his pay at Apeco and further in response to Walsh's question told Walsh that he went out on strike to get better wages for the employees and better working conditions. Walsh explained in detail the annual review system of the Company with regard to promotion and increased pay. Although Del Pozo's testimony with regard to his behavior on the picket line has not been credited his testimony as to the above conversation is credited. It is noted that Del Pozo at the time of the conversation was working at another job earning approximately 50 cents less per hour than he had been making at Apeco;17 that McGovern testified that Del Pozo said he was making "good money" but only when his attorney questioned the words "good money" did McGovern change it to "better money." 18 Thus, it seems unlikely that Del Pozo making less than his previous salary would demand a raise as a condition for reemployment. Further, McGovern in amplifying his testimony with regard to Del Pozo's alleged demand for "a promotion" stated that Del Pozo "thought the people . . . were holding him back, the management was not given him his just due ... that he had more ability 15 The letter varied as to the inclusion of paragraphs (2) and (3) dependent upon the employee's status. 16 To pick up some work clothes he had left behind and also his profit sharing check. 17 It was stipulated that on June 3, 1969, about a week after the strike, Del Pozo took a job with another company. He worked there for 12 weeks. His pay was $2.52 per hour and he worked no overtime. At Apeco his pay was $2.73 per hour and in addition he worked overtime. It is neither contended nor concluded that this other position was a "regular and substantially equivalent position" to that held by Juan at Apeco. 18 The same change occurred on cross-examination. 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD than was being recognized, and that these were deterrents to him if they remained the same . . . that he was deserving of a promotion because of the work he was doing, a promotion to assistant foreman or such." McGovern continued that it was after this that Walsh explained Apeco's policies of personnel and wage review. Del Pozo's statement does not amount to a demand. Certainly, it shows what Del Pozo would like if he were reemployed but it may not reasonably be interpreted to amount to a condition laid down by Del Pozo for reemployment. H. Vacancies Existed at Apeco after May 27, 1969 until after the Del Pozos applied for Reinstatement The parties stipulated as follows: At all times material herein sufficient vacancies existed at American Photocopy Equipment Company to enable reinstatement of Juan Del Pozo and Lydia Del Pozo prior to the time either of them found any regular or substantially equivalent employment. MR. TREACY: . . . I do so stipulate with the two reservations that there was a lapse of time after the picketing terminated before anyone could have been called and, secondly, that recently there has been a curtailment of employment. But other than that I do stipulate.. . . MR MILLER: I accept the reservations. Accordingly and on the record as a whole, it is found that at all times on and after May 27, 1969 until the time of the hearing there existed at Apeco a sufficient number of vacancies to enable Apeco to reinstate the Del Pozos. ANALYSIS AND CONCLUSIONS 1. The Del Pozos made an unconditional request for reemployment Respondent in one sentence in its brief contends that "credibility rests with Apeco as to Del Pozo's conditional offer to return to work, if, indeed, it can be construed as an offer at all." This is a vague contention, is not amplified and is of no material assistance in resolving this question. The General Counsel erroneously contends that the events of the May 27 meeting constitute "the necessary unconditional request for reinstatement on behalf of all striking employees, including the Del Pozos." It has already been found that both Del Pozos were permanently replaced during the strike. That the May 27 agreement between the Union and Apeco was not an unconditional request for employment for replaced strikers is self-evident. The first sentence of paragraph 4 specifically excluded replaced strikers from those strikers who were to be called back as needed. Further, under paragraph 4 the Union agreed that replaced strikers were required to "apply for employment at Apeco." This appears to be clearly a condition to reemployment. Thus it is concluded that as to the Del Pozos and the other replaced strikers the agreement was not an unconditional application for reemployment. See Mississippi Steel Corporation, 169 NLRB No. 96, page 31 of 19 Cf. Indiana Ready Mix Corporation, 141 NLRB 651. 20 See N.L.R.B. v. Erie Resistor Corp., 373 U.S. 221, 223; N.LR.B. v. TXD (ULP strikers); EFCO Manufacturing Inc., 108 NLRB 245, 248. The question now for resolution is whether the Del Pozos applied for employment, as required by paragraph 4. The agreement lays down no form that the application must take. There is no law, nor is the Examiner aware of any case that specified the form that the application must take. The one requirement is that the application must be unconditional. 19 In the loose relationship that exists between employer and employee considerable latitude may be expected in the determination of what constitutes an application. In N.L.R.B. v. Fleetwood Trailer Co., 389 U.S. 375, the Supreme Court said at page 380 "the right to reinstatement does not depend upon technicalities relating to application." Cf. Albritton Engineering Corporation, 138 NLRB 940, 956. Lydia Del Pozo applied unconditionally for employment in response to the questions put to her by McGovern in early June 1969. The Company was actively soliciting information of the strikers as to their availability for work. She answered she was available. There is no doubt that under these circumstances she was applying for work and Apeco was aware of it. No conditions were attached to her response. Similarly, Juan applied for work when McGovern in his presence asked Lydia if she wanted to come back and Juan said, "What happens with me?" Only one reasonable conclusion can be drawn from Juan's question, he was asking about employment for himself. Apeco was fully aware of that fact since the question was put in connection with the survey Apeco was making addressed to Lydia and her availability for work. Juan attached no conditions. That Juan was seeking employment is supported by his questioning of Walsh the following week, when he asked the personnel manager why others were called back to work and not he. Accordingly, from the foregoing and the record as a whole it is found that the Del Pozos during the first 2 weeks of June 1969 made unconditional applications for reem- ployment. 2. The Del Pozos were entitled to full reemploy- ment unless substantial business reasons to the contrary existed It is clear from the foregoing that on May 27, the Del Pozos had the status of economic strikers who had permanently been replaced. Further, it has been found that the Del Pozos individually made unconditional requests for reinstatement in the first 2 weeks of June 1969, at which time jobs at Apeco were available to which the Del Pozos could have been assigned. Under these conditions and under established Board and Court principles, the Del Pozos were entitled to full reinstatement, unless they had in the interim acquired regular and substantially equivalent employment elsewhere, or unless the employer demon- strates legitimate and substantial business reasons for refusing to offer reinstatement.20 There is no showing that the Del Pozos, up to the time of the hearing, had acquired Great Dane Trailers Co., 388 U.S. 26, 34; N.LR.B. v. Fleetwood Trailer Co., 389 U.S. 375, 378; The Laidlaw Corporation, 171 NLRB No. 175, affd. AMERICAN PHOTOCOPY EQUIPMENT regular and substantial equivalent employment elsewhere. Apeco however, contends that there exists "legitimate and substantial business reasons for the failure to reemploy the Del Pozos." We shall now treat with that contention. 3. Apeco did not consider nor rely upon picket line misconduct in the replacement of Juan Del Pozo, or in the failure to reinstate him As stated above, Walsh testified that Del Pozo was not called back by Apeco because he was reported to have used "very abusive and vile language" on the picket line.21 The record clearly shows that Del Pozo's picket line conduct was not considered either with regard to his replacement or in connection with the failure to reinstate him. It is concluded that the reason advanced by Apeco is pretextual and an afterthought. Apeco's list of replaced strikers given to the Board in June 1969 shows May 5, 1969, for the date of replacement of Del Pozo. This was the first day of the strike. It has already been found that Apeco knew or should have known of Del Pozo's picket line conduct from that first day. Walsh asserted that the decision to replace strikers was made while the strike was in progress and on the basis of misconduct. Yet, in a sworn statement given to a Board representative on June 25, 1969, Walsh stated that the replacement of the striking employees was "done on a random selection on the basis of what jobs had to be done and what new hires were available." When shown this statement at the hearing Walsh testified the statement was true when made and still true as of the time of the hearing. On cross-examination, Walsh affirmed that nothing in his statement referred to misconduct on the picket line. Then when asked which was the truth, the strikers were "replaced based upon your production needs, or replaced upon misconduct?" Walsh responded, "Both are true." The answer to the last question is not credited. Accordingly, from the foregoing and on the record as a whole, it is found that misconduct on the picket line was not a factor in the replacement of Del Pozo as an Apeco employee. A similar conclusion is drawn with regard to the reinstatement of Del Pozo. During the period from late May to late June, 1969, there were many instances where Apeco and the Union, and Apeco and striking employees held conversations and had dealings concerning reinstate- ment. The evidence shows that at no time during this period was misconduct on the picket line mentioned by Apeco.22 There is no question that a matter considered so vital to the issue discussed would under normal conditions be men- tioned. Apeco offers no explanation for its failure to bring up the matter of the misconduct. In view of Apeco's failure to refer to this important factor when it was pertinent and material to do so, it is reasonable to conclude that Apeco did not consider misconduct to be significant in relation to, nor rely upon misconduct as a basis for the refusal of (C A 7) 414 F 2d 99, c d. Feb 24, 1970, 73 LRRM 2537, American Machinery Corporation, 174 NLRB No. 25 affd (C A 5) April 15, 1970, No. 27283 21 Walsh's testimony in support of this contention is not credited 22 There follows a partial but significant list of these instances (a) the conversations between Loewenberg and Curley dealing with ending the strike and requesting the return of the strikers , (b) the negotiations of May 27 and the written agreement executed by the Union and Apeco , (c) the 177 reinstatement . Kohler Co., 128 NLRB 1062, 1239 (Gunderson) modified in other respects 1962 (C.A.D.C.) 300 F. 2d 699; Terry Coach Industries, Inc., 166 NLRB 563, In. 10; Marydale Products Company, Inc., 1232, 1235, affd. 1963 (C.A. 5) 311 F.2d 890. The proffer of false and unconvinc- ing reasons by Apeco for failure to reinstate Del Pozo, and the failure to offer legitimate reasons leads to the inference that Apeco refused to offer him reinstatement because of his union activities.23 Having found that Apeco did not consider Juan's conduct sufficient basis for refusal to reinstate him when he applied in June for reemployment, there is no warrant for permitting Apeco (a) to refuse to reinstate him now on those grounds or (b) to assert now that it did refuse to reinstate him on those grounds. Apeco stated that its reason for not reinstating Lydia Del Pozo was that Juan "was such an outrageously violent and insulting individual . . . it would just not [have been] tenable, possible to take her back and not him." It has been shown that at the time of possible reinstatement, Apeco did not consider that Juan to be so bad an individual. The stated reason for the failure to reemploy Lydia is groundless and falls. Thus, the record shows that Apeco has failed to show any legitimate reason why Lydia as an economic striker should not have been reinstated. It is clear from the foregoing that Apeco has shown no legitimate and substantial business justification for not offering full reinstatement to the Del Pozos. Such refusal to reinstate is an unfair labor practice without reference to intent or improper motivation. Its effect is to discourage employees from exercising their rights to organize and strike as guaranteed by Section 7 and 13 of the Act as laid down in the Fleetwood, Laidlaw and American Machinery cases supra. In accordance with the foregoing and on the record as a whole it is found that Apeco by their refusal to reinstate the Del Pozos violated Section 8(a)(3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth above in section III, occurring in connection with its operations described in section I, 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. CONCLUSIONS OF LAW 1. Apeco is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By failing to offer full reinstatement to Lydia Del Pozo and Juan Del Pozo who were economic strikers when survey among the replaced employees , (d) the telephone conversation between McGovern and the Del Pozos, (e) the personal interview between McGovern and the Del Pozos, and (f) the personal interview of Walsh and McGovern with Juan Del Pozo 23 Cf language of the Court in Shattuck Denn Mining Co v N L R B, 362 F 2d 466, 470 (C A 9, 1966), Betts Baking Co v NLRB, 380 F 2d 199,205 (C A 10, 1967) 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD openings and vacancies were available after each had made an unconditional request for reinstatement, Respondent has discriminated with respect to their hire, tenure, and terms and conditions of employment, thereby discouraging membership in the Union, and has engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By the foregoing conduct, Respondent has also interfered with, restrained, and coerced its employees in the exercise of their Section 7 rights and thereby has engaged and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The said unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. V. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, it is recommended that Respondent cease and desist therefrom and take certain affirmative action which will effectuate the policies of the Act. Having found that Respondent violated Section 8(a)(3) and (1) of the Act by refusing to reinstate Lydia Del Pozo on June 5, 1969 and Juan Del Pozo on June 12, 1969,24 it is recommended that Apeco offer each of them immediate and full reinstatement to his or her former or substantially equivalent position, without prejudice to his or her seniority or other rights and privileges, and make each of them whole for any loss of earnings each may have suffered as a result of the discriminatory failure to reinstate each by payment to each of a sum of money equal to that which each normally would have earned as wages from the date of the refusal of reinstatement to the date of Respondent's offer of reinstatement, less net earnings of each during such period, with backpay and interest thereon to be computed in the manner prescribed by the Board in F. W. Woolworth Co., 90 NLRB 289, and Isis Plumbing & Heating Co., Inc., 138 NLRB 716. Upon the foregoing findings and conclusions and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following: RECOMMENDED ORDER The Respondent, American Photocopy Equipment Company, Evanston, Illinois, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in or activities on behalf of Industrial Workers Union, Local #8, affiliated with the Laborers International Union, or any other labor organiza- tion, by failing to reinstate strikers who had made an unconditional application for reemployment to existing vacancies, or in any other manner discriminating against them in regard to their hire, tenure, or any terms or conditions of employment. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to Juan Del Pozo and Lydia Del Pozo immediate and full reinstatement to his or her former or substantially equivalent position, without prejudice to seniority or other rights and privileges, and make each whole for any loss of earnings each may have suffered as a result of the unlawful failure to reinstate each in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and upon request make available to the Board and its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary in determining the amount due as backpay. (c) Post at its plant in Evanston, Illinois, copies of the notice attached hereto and marked "Appendix." 25 Copies of said notice, on forms to be provided by the Regional Director for Region 13 (Chicago, Illinois) shall, after being duly signed by an authorized representative of the Respondent, be posted by Respondent immediately upon receipt thereof and be maintained by it for a period of 60 consecutive days thereafter in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the said Regional Director in writing, within 20 days from the date of this Decision and Recommended Order, what steps the Respondent has taken to comply herewith.26 24 These dates are arbitrarily set. The record shows that the McGovern/ Del Pow telephone conversation during which Lydia requester' reemployment occurred during the first week in June ; the personal conversation between them at the plant during which Juan requested reemployment occurred a week later. 25 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes . In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read, "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 26 In the event these recommendations are adopted by the Board, this provision shall be modified to read : "Notify the Regional Director for Region 13, in writing, within 10 days from receipt of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in or activities on behalf of Industrial Workers Union Local #8, affiliated with the Laborers International Union, or any other labor organization, by failing to reinstate strikers who had made an unconditional application for reemployment to existing vacancies, or in any other manner discriminating against them with respect to their hire, tenure, or any term or condition of employment. WE WILL NOT in any like or related manner interfere AMERICAN PHOTOCOPY EQUIPMENT with, restrain, or coerce our employees in the exercise of rights guaranteed in Section 7 of the Act. WE WILL offer to Juan Del Pozo and Lydia Del Pozo immediate and full reinstatement to his or her former or substantially equivalent position , without prejudice to his and her seniority or vacation or other rights and privileges, and will make each whole for any loss of earnings suffered as a result of the discrimination against them. AMERICAN PHOTOCOPY EQUIPMENT COMPANY (Employer) Dated By 179 (Representative) I(Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered , defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, 881 U.S. Courthouse and Federal Office Building, 219 S. Dearborn Street, Chicago, Illinois 60604, Tel. 312-353-7572. 0