Hijos de Ricardo Vela, Inc.

HIJOS DE RICARDO VELA, INC. 377 Hijos de Ricardo Vela, Inc., Vela Distributing Corp. and Congreso de Uniones Industriales de Puerto Rico. Case 24-CA-2982 November 30, 1971 DECISION AND OF-DER By CHAIRMAN MILLER AND MEMBERS FANNING AND KENNEDY On August 19, 1971, Trial Examiner Anne F. Schlezinger issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions' and supporting affidavits and the General Counsel filed an opposition and a supporting affidavit. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions, opposition, and affidavits and has decided to affirm the Trial Examiner's rulings, findings, and conclu- sions and to adopt her recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that Respondent, Hijos de Ricardo Vela, Inc., and Vela Distributing Corp., Bayamon, Puerto Rico, its offi- cers, agents, successors, and' assigns, shall take the action set forth in the Trial Examiner's recommended Order. 1 We find no merit in the Respondent's motion to remand this proceeding to the Trial Examiner The Respondent was not represented at the hearing, its attorney having sought a postponement both before and during the hearing The former was denied by the Regional Director without prejudice ; the latter motion was in the form of a telegram and was denied by the Trial Examiner on the ground that no adequate reason had been presented for the failure of the Respondent to appear during the hearing in person and to advance reasons warranting a postponement. The Respondent now reasserts, in support of its motion to remand, the same reasons advanced to the Regional Director and to the Trial Examiner, i.e., a conflicting commitment to bargain on behalf of another client made long after the notice of hearing herein was served and indeed only shortly before the scheduled hearing date. No further reason for failure to appear at the hearing in person or by a representative was advanced by counsel for Respondent. Accordingly, the Trial Examiner was justified in denying the motion to postpone and for the same reasons we deny the motion to remand. Charging Party, the General Counsel, by the Regional Director for Region 24 (Hato Rey, Puerto Rico), issued a complaint dated April 28, 1971. The complaint alleges that Hijos de Ricardo Vela, Inc., and Vela Distributing Corp., which are referred to herein as Hijos and Vela Distributing respectively and as the Respondent jointly, constitute a single employer; that the Respondent on or about February 5, 1971, discharged 14 employees including Jose A. Crespo because they engaged in a work stoppage to support demands for improved working conditions and/or because they became members of the Union, and on or about February 25 refused to reinstate and discharged Crespo because of his leadership of the employees' concerted activities and/or because of his union membership or activities, in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. An answer, duly filed on May 1 for both corporations by Purcell Ruiz and Weasler, admits some of the jurisdictional allegations of the complaint and denies others; denies that the two corporations constitute a single employer; denies the commission of any unfair labor practices; admits the allegation of the complaint that: "On or about February 25, 1971, Respondent refused to reinstate and/or discharged employee Jose A. Crespo because of his leadership of the concerted activities of the Respondent's employees which led to the strike of February 2, 1971 and/or because of his membership in or activities on behalf of the Congreso de Uniones Industriales de Puerto Rico"; and asserts the following affirmative defenses: A- At all times material here to [sic] Jose A. Crespo was a "supervisor" as defined by the National Labor Relations Act. B- On or about February 5, 1971 Jose A. Crespo instigated, urged and led an illegal work stoppage of the employees who abandoned their employment. C- On or about February 25, 1971 the employees abandoned their strike and returned to work. D- On or about February 5, 1971 Jose A. Crespo abandoned his work, for the reasons set forth in paragraph B above. Pursuant to due notice, a hearing was held before the Trial Examiner at Hato Rey, Puerto Rico, on May 26, 27, and 28, 1971. The General Counsel and the Charging Party appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce relevant evidence. The Respondent made no appearance. Although the General Counsel and the Charging Party as well as several witnesses, a reporter, and an interpreter were present and ready to proceed, the Trial Examiner delayed the hearing in order to afford the Respondent further opportunity to appear or to explain the failure to do so. About an hour after the scheduled time of the hearing, the following telegram was received from Weasler: TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ANNE F. SCHLEZINGER, Trial Examiner: Based upon a charge filed on February 12 and an amended charge filed on April 23, 1971, by Congreso de Uniones Industriales de Puerto Rico, referred to herein as the Union or the MRS ANNE SCHNEIZER DESIGNATE TRIAL EXAMINER NATIONAL LABOR RELATION BOARD 7 FLOOR PAN AMERICAN BUILDING RE HIJOS DE RRCRDO VELA 24-CA-2982 194 NLRB No. 62 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FOR REASONS PREVIOUSLY ADVANCES TO THE REGIONAL OFFICE COUNSEL UNABLE TOMATTEND HEARING AS SCHEDULED RESPECTFULLY REQUEST OF POSTPONEMENT UNTIL ANY DAY AFTER JUNE 5 WITH EXCEPTION OF NUNE 9 PLEASE ADVISE COLLECT [SIC] The General Counsel stated, with reference to the reasons for postponement advanced by Weasler to the Regional Office, that Weasler "had made a collective bargaining commitment with a client-which, by the way, he made long after the complaint had gone out-and the commit- ment was for today, I presume sometime this morning." The General Counsel stated further that there had been discussions with Weasler about his reasons for requesting a postponement; that the Regional Director had denied the request; and that the General Counsel urged that the request to the Trial Examiner be denied as "The Regional Office's view is that it is rather presumptuous of him to send this telegram to you, in view of the fact that he was here yesterday and had made his presence known to us and perhaps to Your Honor as well." Weasler had introduced himself to the Trial Examiner at a hearing on May 25 as counsel for the party respondent in the case scheduled to be heard the next day. He gave no indication that the party he represented would not make an appearance. At the request of the Trial Examiner, the General Counsel, as he stated on the record, telephoned Weasler's office to try to ascertain whether any representative of the Respondent intended to appear at a later time, but was told "the secretary has no idea where the attorneys are meeting with their client this morning for the bargaining session and she says there is no prospect of getting in touch with anyone." The complaint in this case with notice of hearing, which issued on April 28, and also the amended charge, had been served on Weasler as well as on the Respondent.' In view of all the circumstances, the Trial Examiner denied the request for postponement,2 and a telegram was dispatched to Weasler's office informing him that his request was denied and that the hearing was proceeding. A secretary in the Regional Office states, in an affidavit which is in evidence, that she telephoned Weasler's office and, when told he was not in, read the telegram to his secretary with instructions to deliver it to Weasler. In addition, the General Counsel referred to the Trial Examiner at the opening of the hearing a petition to revoke subpenas that had been filed by the Respondent on May 24. He asserted that no response thereto had yet been made and that the General Counsel opposed the granting of this petition. The petition sought revocation of two subpenas duces tecum directed to each of the two corporations and two subpenas ad testificandum directed to the respective presidents of the corporations, served on May 19, 1971, and 1 The Respondent's letter discharging Crespo , dated February 25, 1971, shows on its face that copies were sent to the Board's Regional Office and to "Weasler & Purcell Rios." 2 See N.L RB. v. Interboro Contractors, Inc., 432 F.2d 855 (C.A. 2, 1970); Interurban Gas Corp, 164 NLRB 1072, T T.P Corp., 190 NLRB No. 48. 3 A decision dated March 25, 1971, by the Regional Director in a representation case (24-RC-4290) involving the two corporations , placed calling on them to appear at the hearing with certain documentary material at 9 a.m. on May 26. The corporate presidents were not present in the hearing room, nor any other representative of the corporations, and the documents sought in the subpenas had not been furnished by the Respondent .3 The petition to revoke was denied by the Trial Examiner on the record. The General Counsel announced at the opening of the second day of the hearing that no further word had been received from the Respondent or its counsel, that the witnesses waiting to testify were employees of the Respondent but no representative of the Respondent was present, and that he was prepared to continue the hearing. At the opening of the third day of the hearing, the General Counsel made the following statement: Yesterday, after the hearing was adjourned I phoned attorney Weasler's office and asked for him and his secretary answered and said he was out and I gave her the message that this hearing had been adjourned yesterday until today at 11 o'clock a.m. and to put in a defense if he desired. She took the message assuring me that she would get the message to him and I would like to make a further statement for the record of the fact that we have received no further word from Mr. Weasler's office in this matter. The General Counsel was later interrupted in the presentation of his closing argument, and the following comments were made on the record: MR. MARTIN: I have been informed by the Regional Attorney that he has received a communica- tion from attorney Weasler, for respondent, to the effect that at 8 o'clock this morning he sent Your Honor a telegram requesting that at the close of the General Counsel's case today he be given a postponement of this case without specifying any date and the Regional Attorney informed him that he suggested that he make his appearance personally and make his representations to Your Honor giving his grounds for the request for adjournment at the close of the General Counsel's case today. At the time they were talking the Regional Office had not received any telegram for Your Honor and if you want to note for the record that it is now six minutes of twelve o'clock and the phone conversation was just a few minutes ago. TRIAL EXAMINER: What was Mr. Weasler's response to the suggestion that he appear and give his reasons for requesting the postponement personally? MR. MARTIN: His response was that he did not have the time to come over and that he had more important matters to attend to and he did not want to be bothered in coming. TRIAL EXAMINER: Thank you for the informa- tion, Mr. Martin. I will withhold my ruling on the in evidence by the General Counsel, states: "After the denial of the Employer's motion to dismiss the petition with regard to Vela Distributing Corp. `for lack of jurisdiction,' the Employer left the hearing without, as specifically requested by the Hearing Officer, submitting commerce and other data with regard to the operations of Vela Distributing Corp.... Although duly notified, the Employer failed to appear at subsequent sessions of the hearing." HIJOS DE RICARDO VELA, INC. 379 request for postponement until I receive the request from the respondent. After the conclusion of the General Counsel's closing argument, the Trial Examiner stated on the record: In view of the message received by telephone from Mr. Weasler that he has sent a request for postponement which as of 12:20 has not been received we will recess at this time with the consent of the parties present until 4 o'clock this afternoon at which time if the request for postponement has been received I will rule thereon, depending upon the nature of the request and the reasons advanced for postponement. When the hearing resumed at 4 p.m., the General Counsel announced that: ... this afternoon after we adjourned and at 2:15 p.m. I phoned attorney Weasler at his office to apprise him of the fact that Your Honor had adjourned the hearing until 4 p.m. today and that he had until 4 p.m. to make an appearance or renew his motion or make a showing for his motion. I spoke to his secretary and she must have passed the message on to him. We did receive a telegram at 1:49 p.m.... addressed to you. The General Counsel read into the record the following telegram: "MARTIN ADVICES GENERAL COUNSEL WILL REST TODAY. RESPONDENT MOVE THAT HEARING BE THEN POSPONED REASONABLE TIME SO COUNSEL CAN ORDER TRANSCRITT AND OTHERWISE PRESENT DEFENSE" [sic] The General Counsel then stated: I received a phone call from Mr. Weasler at 2:50 p.m. today and his only comment was that he did not think that he would be coming in today at 4 p.m., that his position is the same as it has been before, but he did not go into any details-those are the only comments he made. I wish to state to Your Honor that the General Counsel is opposed to the granting of this motion. I wanted to state that Mr. Weasler has been apprised at every turn, given every opportunity, we had phoned his office every moment that we had adjourned and that he was apprised when the time was and given every opportunity to come in and I think it highly improper on his part to presume that we should continue this hearing granting him an opportunity that he has not availed himself of either personally or through one of his associates. The Trial Examiner at this time ruled on the record that "The Respondent's motion for postponement is hereby denied as no adequate reason has been presented for his failure to appear at any time during the hearing in person and to advance reasons to warrant granting a postpone- ment." The General Counsel was requested to notify counsel for the Respondent of the time set for the filing of briefs. No briefs have been received. On July 20, about 2 months after the close of the hearing, Purcell Rios and Weasler filed with the Trial Examiner a Motion to Reopen Record, asserting that a request "for a postponement of the hearing on the grounds of other commitments" was denied by the Regional Director and by the Trial Examiner, and that "denial of a hearing will deny respondents of substantial rights and due process of Law ...."4 On July 26 an Opposition of General Counsel to Motion to Reopen Record was filed. On July 28, the Trial Examiner issued an Order Denying Motion to Reopen .5 Upon the entire record in this case, including the answer of the Respondent duly filed by its attorneys on May 1, the subsequent failure of the Respondent by its officials or counsel to appear at the scheduled hearing in accord with the duly served notice and subpenas, the testimony and documentation offered by the General Counsel, and from my observation of the witnesses who testified, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The complaint alleges, and the Respondent's answer admits, the following: "Hijos de Ricardo Vela, Inc., is a corporation of the Commonwealth of Puerto Rico engaged in operating a retail department store at Bayamon, P.R. During the year 1970, it purchased and had shipped to its place of business in Bayamon, P.R., from points located outside of Puerto Rico, household goods, electrical appliances, and other merchandise valued in excess of $50,000. During the same period it had a gross income of over $500,000." The complaint also alleges, and the Respondent's answer demes, the following: Vela Distributing Corp. is a corporate affiliate of Hijos de Ricardo Vela, Inc. It is the exclusive distributor of Zenith Company radio and television products on the island of Puerto Rico. It also acts as the radio and TV repair servicing arm of Hijos de Ricardo Vela, Inc. During the year 1970 it purchased and had shipped to its place of business in Bayamon, P.R. from points located outside of Puerto Rico, radios, TV sets and other electronic products valued in excess of $50,000. Hijos de Ricardo Vela, Inc. and Vela Distributing Corp. operate as a single integrated family type enterprise with common operational and labor relations controls. For the purposes of this proceeding said corporations constitute a single employer of the employees involved herein. Credible testimony and documentary evidence show that both corporations are at the same location, a 2-story and mezzanine building in Bayamon, and have the same cable address and telephone number. Vela Distributing distrib- utes Zenith products, and Hijos is a department store that sells general merchandise including Zenith products. Vela Distributing is identified on its letterhead stationery as "Zenith Distributors for Puerto Rico" and as "An Affiliate of Hijos de Ricardo Vela, Inc.," and its printed checks, 4 No question is raised in the Motion as to any of the General Counsel's comments made on the record with regard to the Respondent's request for postponement and failure to appear at the hearing. 5 See N.L R B. v. Otlans Roofing Co., 445 F.2d 299 (C.A. 9, June 23, 1971). 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which bear the Zenith trademark, also identify this corporation as an affiliate of Hijos. The Hijos printed letterhead identifies it as "Department Store-Radios and TV sets-ZENITH." Rodrigo Leroy Vela, referred to in the record generally as Leroy Vela, is president of Vela Distributing, and Ricardo Vela, his brother, is president of Hijos. There are references in the record also to Ileana Vela, a sister, Victor Vela, a cousin, Cuca Vela whose relationship is not shown, and a son of Leroy Vela among the relatives associated with the Respondent. The unit found appropriate in the representation proceeding, to which the decision in that case shows there was no objection by any of the parties, was described as follows: All employees employed by Hijos de Ricardo Vela, Inc. and Vela Distributing Corp. in the shop . . . and in the field, engaged in the repair of TV's, radios and record players, including shop and field T.V. and Radio Technicians, the driver helpers, and the shop stockroom and shop spare parts stock room clerk and shop helper; but excluding all other employees, office clerical employees, sales personnel, guards and supervisors as defined in the Act. At the time of the events herein, there were approximate- ly 14 employees in these unit categories. There is only one repair shop for both Hijos and Vela Distributing which is located on the second floor. The offices of Leroy and Ricardo Vela, and of Batista who is secretary to both of them, are located on the mezzanine floor. Personnel actions affecting these repair employees are taken by Leroy or Ricardo Vela in the name of either or both corporations, but the employees are generally interviewed, hired, discharged, and supervised by Leroy Vela, who is in charge of the electronic repair work. Batista also supervises the repair work, particularly that done in the field. Directions are given the employees in the shop largely through intercoms between the shop and the offices of Leroy Vela and Batista, but both frequently come into the shop as well. Employees when hired for this work are placed on either the Hijos or Vela Distributing payroll, are at times transferred from one to the other with no notice and no change in jobs, and employees doing the same work may be on different payrolls. The technicians repair Zenith TV sets, radios, record players, and other electronic equipment in the shop and in the field. They make repairs on new products which come from the factory with defects and are brought to the shop from the Vela Distributing warehouse, and on used products brought in by customers who purchased them from Hijos or which Vela Distributing sold to stores other than Hijos. 6 In the representation proceeding referred to above (Case 24-RC-4290) the Regional Director asserted jurisdiction on the basis, inter aka, of the following findings. ... the record shows that Vela Distributing Corp., located at the same premises as Hijos de Ricardo Vela, Inc., is engaged in the distribution of color TVs, radios, record players and tape recorders (items sold at retail by Hijos de Ricardo Vela, Inc.) which are manufactured by the Zenith Corporation in the Continental United States . The stationery and checks of Vela Distributing Corp describe it as "an affiliate of Hilos de Ricardo Vela, Inc.," the President of Vela Distributing Corp., who signs discharge letters for employees of both corporations, is a Director of Hijos de Ricardo Vela, Inc.; and the employees of both corporations sought herein work The TV sets and parts shipped to Vela Distributing originate in Chicago. Leroy Vela generally marks the retail prices on the invoices or the boxes in which the products are contained. Nazario, the senior TV technician, testified that he has observed the prices marked on many items, that the Zeroth TV sets are priced from $150 to $ 1200, that he has seen shipments containing about 150 TV sets unloaded at the warehouse, and that about 200 sets a month go through the shop for repair. He testified further that the Respondent sells each month about 50 flybacks at $16.80 each, 25 or 30 flybacks on color TV sets at about $25 each, 50 or 60 deflection yokes at $ 17.50 each, 50 or 60 volume controls at $3 each, and 20 to 25 color demodulators at $13.65 each.6 I conclude, on the basis of the entire record, that the two corporations are, with respect to the employees here involved, highly integrated operations with a common labor relations policy, that they constitute a single employer for the purposes of this proceeding ,7 that the Respondent is an employer ' engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the purposes of the Act to assertjurisdiction herem.8 III. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the Respondent in its answer admits, and I find that Congreso de Uniones Industriales de Puerto Rico is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES 1. The walkout The 14 employees here involved had been discussing certain complaints about working conditions for months when, in about August or September 1970, they designated Crespo as their spokesman.9 Crespo told Leroy Vela in about September, as he testified, that he had been selected by the men to report that "we needed more technicians, that we needed a medical plan, that we needed a janitor and better salaries and better tools for the men in the field." Vela refused some of the requests and said he would think about the others. When no action was taken, Crespo went to see Vela again a month or two later. He raised the same matters, and Vela again said he would think about them. There was later a third meeting and the same reply. No action was taken on any of the requests. On Monday, February 1, 1971, all 14 employees agreed they would go in a group to see Leroy Vela the next day about their complaints. They went to Leroy Vela's office about 10 the next morning but he was not there. Batista, the in the same building under the same supervision. I find therefore that Hijos de Ricardo Vela, Inc. and Vela Distributing Corp. constitute a single employer Cf Tropicana Products, Inc, 122 NLRB 121. 7 N.L.RB v. Stowe Spinning Co, 336 US. 226; N L.R.B. v. Ogle Protection Service, Inc., 444 F.2d 502 (C.A. 6, June 30, 1971); Macke Laundry Service Co., 190 NLRB No. 1; AAA Electric, Inc., 190 NLRB No 23. 8 See N.L R B v. Marinor Inns, Inc, 445 F.2d 538 (C.A. 5, July 14, 1971); Tropicana Products, Inc., 122 NLRB 121; City and County Electric Sanitary Sewer Service, Inc, 191 NLRB No. 27. 9 Nazano, the senior TV technician, testified that Crespo was selected as spokesman because, while he was one of the youngest men in the group, he was the most intelligent and had the most education. HIJOS DE RICARDO VELA, INC. 381 secretary, called Ricardo Vela and told him the men wanted to discuss their problems. Ricardo Vela asked the group who was the leader, and Crespo stepped forward. He went with Ricardo Vela to the office, and explained the changes requested by the employees which, he said, were first raised with Leroy Vela 2 or 3 months earlier. Ricardo Vela agreed to the requests. Crespo testified that he then "told him to please put it in writing because words the wind takes them." Ricardo Vela asked for a week in which to do so, and asked Crespo to report this to the other men, which Crespo did. The men decided they would not go in to work until they received what was promised "in writing," or until Leroy Vela returned and talked to them. Crespo reported this decision to Ricardo Vela. The 14 men went to the parking lot in the rear of the building. The receiving platform for electronic equipment is located there, as well as the stairway that leads to the offices and, above them, to the shop. Ricardo Vela stood at the receiving platform door and saw the men on the parking lot. The men did not picket but congregated on the parking lot, where both Ricardo and Leroy Vela, who parked on the lot, saw the men each day of the walkout. On about Wednesday or Thursday, Torres, a union organizer, came to the parking lot, spoke to the men, and gave them some union cards. The cards were signed and returned to Crespo, who turned them in to the Union. On Thursday, February 4, which was a payday, the 14 men received their pay for Monday and 1 hour on Tuesday. Also on Thursday there was a meeting in Leroy Vela's office at which Leroy Vela and both Crespo and Nazario met with Cancel of the Arbitration and Conciliation Service. The employees stated what the men were seeking and explained they went on strike because they received no action on their complaints and no assurances of action in writing. Leroy Vela asked Cancel to give him until February 9 because there had to be a meeting of the board of directors before he could reach an agreement. 2. The discharges On Friday, February 5, Figueroa, the president of the Union, sent Leroy Vela a letter informing him that the Union claimed to represent the Respondent's TV and radio technicians, and suggesting a meeting at the Department of Labor of Puerto Rico on February 9 to begin negotiations. In a letter dated February 8, on the letterhead of Hijos and signed by Leroy Vela, the proposed meeting was rejected for the following reasons: I wish to inform you that the company I represent agreed last Friday to dispense with the services of the employees to which you have referred in your letter due to the fact that they, in an unexpected manner and without any justifiable reason, abandoned their employ- ment last Tuesday, February 2, at 10:00 in the morning, without having returned to the performance of their duties, in spite of the request that we made to them in that sense. This attitude on the part of the concerned employees was the cause for the company taking the action I am stating to you. In reality, upon abandoning their jobs, the employees were the ones who, of their own accord, dispensed with working for the company. Figueroa testified that he telephoned Leroy Vela on February 9, that he asked why Vela had not appeared for the proposed meeting, and that Leroy Vela replied that "he had fired all his employees and that I did not represent any of his employees." Crespo and union organizer Padilla were at Conciliator Cancel's office on about Monday, February 8, when Leroy Vela telephoned. Cancel reported to them that Vela said the men had been discharged, and that he replied that was not the agreement that had been reached. Crespo testified that this was the first notification of discharge he received. On about Tuesday, February 9, or within the next few days, the strikers received in the mail letters dated February 5, some on Vela Distributing letterheads signed by Leroy Vela as president, others on Hijos letterheads signed by Ricardo Vela as president. The letters, in which vacation checks were enclosed, read as follows: In view of the fact that on Tuesday, February 2, 1971, at 10:00 A.M., without prior notice and without a justified cause, you, in conjunction with other employ- ees of this company, abandoned the job without your having returned to it as of this date, notwithstanding our friendly efforts so that you return to the perform- ance of your duties, the Board of Directors, at a meeting held today, decided to dispense with your services as an employee of this company. The unjustified abandonment of your job, without prior notice, and your refusal to return, thus failing to discharge your duties, have motivated this action on our part. We are enclosing check . . . as a final liquidation according to law. The men went to the union offices and had copies made of the letters. They also began picketing the store entrances on Tuesday at about 1:30 p.m. Crespo and Nazario testified that Leroy Vela called the police when picketing began and claimed, when the police came, that the strike was illegal because the men had no representation ; that Padilla, the union organizer, identified himself; and that Vela then returned to the store. Padilla was present at the picket line from time to time after that, and Figueroa was also there at times. 3. Reinstatement of 13 strikers On February 23, Padilla told the strikers agreement had been reached between the Union and the Respondent. Padilla then went in to talk to Leroy and Ricardo Vela and later all the men went in. Leroy Vela stated that he had already sent a letter to the Union to the effect that the men could return to work on Thursday, February 25, at 9 a.m., and those who did not appear then would be replaced. The men agreed they would return on that date, and the picketing was discontinued. All 14 strikers returned to work on February 25,10 and all but Crespo were put to work and have been employed since 10 After they returned to work, the men were given new work schedules, dated February 24 and effective February 25, signed by Leroy Vela on behalf of Hijos. 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD then. It was not until a few days after their return that the men received the following letter, dated February 19, with the names of both corporations typed in as the heading and at the close, and signed by Leroy Vela on behalf of both corporations: This is to notify you that since you abandoned your job on February 2, 1971 without prior notice and without a justified cause, the Company feels free to replace you with a new employee or to take any other action it deems necessary. Now, for the purpose of maintaining the most cordial of relations with you, the Board of Directors has decided to maintain your position open and available for you until Thursday, February 25, at nine in the morning. If you fail to report for work on that day and at the hour indicated, we shall understand that you have irrevocably renounced all the rights to employment that you have and, consequently, the corporation shall proceed to recruit replacements or take any other action it deems necessary. 4. Refusal to reinstate Crespo When Crespo went in to work with the other 13 men on February, 25, he could not find his timecard. He asked Ileana Vela about it and was told Leroy Vela wanted to see him. Leroy Vela arrived a little later and handed Crespo a letter dated February 25. The letter, which shows that copies were sent to the Regional Office of the Board and to Weasler and Purcell Rios, states: As you well know, according to law and to the supervisory position that you occupied with Vela Distributing Corp., you owed loyalty and responsibility to the company. Due to your active participation in the strike of February 2, 1971, of the employees of the repair shop of Hijos de Ricardo Vela, Inc., and of Vela Distributing Corp., you repudiated your responsibilities towards management. These being the facts, we have no other alternative than to confirm your discharge and we refuse to have you return to the job. In spite of the fact that there does not exist any legal obligation on the part of management, taking into consideration that you are the father of a family, that you are studying, and the time you worked with the company, we are enclosing check number 1316, which is equivalent to a month's pay. 5. Crespo's employment status Crespo was hired in March 1966 by Leroy Vela as an employee on the Hijos payroll and began work as a helper to Nazario. After about 5 or 6 months, during which Crespo was learning TV repair work, he was given a job as a TV technician but remained on the Hijos payroll. He worked in the shop and also had a truck route for repair of TV sets outside the shop. He received when he began working an hourly rate which totaled about $33 a week, and had been increased to about $42 when he left his job in May 1968. At the request of Leroy Vela, he returned to work for Hijos in January 1969 as a TV technician at about $66 a week. In about October 1970 Crespo was switched to the Vela Distributing payroll as he learned when he noticed the change in name on his timecard. He was given no explanation or notice of this change , and there was no change in his job. Crespo is one of the youngest of the TV technicians in the Respondent's employ, and the only one who has no TV repair diploma. Nazario, who has been working with TV for 18 years and is the most experienced and the highest paid TV technician in the shop, has diplomas from schools in Los Angeles and in Mayaguez. At one time he was sent to Zenith in Chicago to study color TV, and was given letters of introduction by Leroy Vela referring to him as the chief technician. Nazario was on the Hijos payroll until about 1964, when Vela Distributing was established and he was transferred to its payroll. He has instructed other technicians in the repair of TV color sets, studied literature and service manuals as to the schematics on new models and ekplained them to the other technicians, filled out service warranty forms for claims against the factory for defective parts, and kept records of parts needed so Leroy Vela could order them from Chicago. Nazario left the Respondent's employ in April 1969 and returned in August. At the time he left, he and Crespo had a conversation in the office with Leroy Vela and his cousin Victor Vela. Victor Vela was put in charge of administration of the shop work, moved to the work bench previously used by Nazano, and organized files, parts storage, and ordering systems. Crespo, whose wages were increased to $74 a week , assumed some of Nazario's duties, including filling out warranty forms and noting parts needed so Leroy Vela could order them, but he did not do any training of other technicians. TV repair work took about 95 percent of Crespo's time, and this continued to be so after August 1969 when Nazario returned to work as a TV technician, and when Victor Vela left hisjob. His wages were increased about this time to $80, and in April 1970 to $90, but Nazario continued to receive higher wages than Crespo. Leroy Vela generally interviews, hires, and discharges employees for both corporations, including those engaged in TV and radio repairs. He and Batista supervise the repair work by intercom or in person. The record shows that relatively little supervision is exercised over this work as the men know their jobs and they repair equipment in the order in which it was received, as noted in a record book kept by one of the employees. This routine is varied only when Leroy Vela directs on the intercom that a particular job be given priority. Whichever technician was available at the time would do the job but, if all were busy, Nazario or Crespo, after he took over some of Nazario's duties, would perform this job. Crespo received the same employment benefits as the other technicians, punched a timeclock, was hourly paid, and like the other men asked Leroy Vela when he wanted time off. The TV technicians did not interchange with the technicians who repaired radios and record players at the other end of the shop, and Crespo testified that he knew nothing of their work. Credited testimony of Crespo and others in the shop shows that Crespo never hired or discharged employees, responsibly directed employees, or possessed or exercised any of the other indicia of statutory supervisory status. Crespo testified in fact that he first HIJOS DE RICARDO VELA, INC. 383 heard of his supervisory status when he read the discharge letter of February 25. Concluding Findings It is clear from the entire record, and I find, that the 14 repair shop employees walked off their jobs on February 2, 1971, because of their inability to obtain from the Respondent what they considered a satisfactory answer to complaints about their working conditions. It is long- established Board and court law that such a work stoppage constitutes protected concerted activity.11 Leroy Vela, who had told the Conciliator and two representatives of the employees who walked out that he needed until February 9, when there would be a meeting of the board of directors, before he could enter into any agreement as to the work stoppage issues, did not find it necessary to wait for a February 9 meeting when he sent the discharge letters dated February 5. I find, on all the relevant evidence, that,this action was taken because Leroy Vela learned that the men who engaged in the work stoppage had also become members of the Union. Accordingly, I conclude and find that all 14 men who walked out on February 2 were discharged by the Respondent on or about February 5 because, as shown in large part by the Respondent's letters, they had engaged in a lawful work stoppage, and because of their union membership. I find therefore that the Respon- dent, by such discharges, has interfered with, restrained, and coerced its employees in the exercise of their Section 7 rights, in violation of Section 8(a)(1) and (3) of the Act.12 It is also clear from the entire record, as the Respondent in its answer admits, that while the other 13 strikers were permitted to return to work, Crespo was denied reinstate- ment and discharged because of his leadership of the employees' concerted activity and/or because of his union membership and activities. The Respondent contends in its answer that the termination of Crespo's employment was not violative of the Act because (1) he was a supervisor within the meaning of the Act, and (2) he instigated and led "an illegal work stoppage of the employees who abandoned their employment." As to (1), however, the record shows, as set forth above, that the work of the 14 employees, in the shop and in the field, is supervised by Leroy Vela and Batista and that Crespo did not possess or exercise any statutory supervisory authority. Accordingly, I find that Crespo was not a supervisor but an employee within the meaning of the Act. 13 As to (2), I have found above that the work stoppage was clearly, on the basis of Board and court authorities, a protected concerted activity. Furthermore, the Respondent's letter to Crespo made no claim that the work stoppage was illegal and the Respondent reinstated all who participated therein except Crespo. I find, therefore, that Crespo, like the other striking employees, was discriminatorily discharged because of his participation in protected concerted activity and because of his union membership, that he was refused reinstatement and 11 N L.R B. v. Washington Aluminum Co, 370 U.S. 9; Hugh H Wilson Corporation v. N L.R.B., 414 F.2d 1345, Toledo Commutator Company, 180 NLRB No. 146; Carbet Corporation, 191 NLRB No. 145. 12 See cases cited in fn 11 above. 13 Dobbs Houses, a Division of Squibb Beechnut, Inc, 182 NLRB No. 95, Marinette Marine Corporation, 179 NLRB No 102. discharged because of his leadership of the protected concerted activity and because of his union membership and activities, and that the Respondent by such refusal to reinstate and discharge has further violated Section 8(a)(1) and (3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III above, occurring in connection with the operations of the Respondent 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. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices in violation of Section 8(axl) and (3) of the Act, I shall recommend that the Respondent cease and desist therefrom and from in any other manner infringing upon its employees' Section 7 rights,14 and that it take certain affirmative action designed to effectuate the policies of the Act. I have found that the Respondent on or about February 5, 1971, discharged 14 employees because they engaged in protected concerted activity and because of their union membership, in violation of Section 8(a)(1) and (3) of the Act, and on February 25 refused to reinstate one of the 14, Crespo, because of his leadership of the protected concerted activity and because of his union membership and activities. The General Counsel seeks a reinstatement and backpay order for Crespo only as the other 13 men were reinstated, upon application, on February 25.15 Accordingly, I shall recommend that the Respondent offer Crespo immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him by payment of a sum of money equal to that which he would normally have earned as wages from February 25, 1971, the date on which he was refused reinstatement and discharged, to the date on which the Respondent shall make an adequate offer of reinstate- ment, less his net earnings during said period. Backpay shall be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289, together with interest thereon at the rate of 6 percent per annum, as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: 14 See Morgan Precision Parts v. N.LR.B, 444 F 2d 1210 (C.A. 5, July 15, 1971). 15 The remedy necessary to effectuate the policies of the Act would, in the circumstances of this case, be identical whether the discrimination against Crespo is found to be violative of Section 8(a)(1) or (3). See American Art Clay Company, Inc., 142 NLRB 624. 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Hijos de Ricardo Vela, Inc., and Vela Distributing Corp., for purposes of this proceeding, constitute a single employer which is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Congreso de Unions Industriales de Puerto Rico is a labor organization within the meaning of Section 2(5) of the Act. 3. Jose A. Crespo is an employee within the meaning of Section 2(3) of the Act. 4. By discharging 14 employees for engaging in protected concerted activity and because of their union membership, and by refusing to reinstate one of the 14, Jose A. Crespo, because of his leadership of the protected concerted activity, and because of his Union membership and activities, the Respondent has violated Section 8(a)(1) and (3) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record herein, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:16 ORDER The Respondent, Hijos de Ricardo Vela, Inc., and Vela Distributing Corp., Bayamon, Puerto Rico, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging, refusing to reinstate, or otherwise discriminating in regard to the hire and tenure of employment of its employees because of their leadership of or participation in protected concerted activities, or their membership in or activities on behalf of Congreso de Uniones Industriales de Puerto Rico or any other labor organization of their choice. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise 'of the rights guaranteed to them in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer to Jose A. Crespo immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed, and make him whole for any loss of earnings he may have suffered by reason of the Respon- dent's discrimination against him in the manner set forth in the section of this Decision entitled "The Remedy." (b) Notify Jose A. Crespo, if at present serving in the Armed Forces of the United States, of his right to full reinstatement, upon application, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all 'payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its operations at Bayamon, Puerto Rico, copies in both English and Spanish of the attached notice marked "Appendix." 17 Copies of said notice, on forms provided by the Regional Director for Region 24, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 24, in writing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith.18 16 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, 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. 17 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board." is In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read "Notify the Regional Director for Region 24, in writing, within 20 days from the date 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 discharge, refuse to reinstate, or otherwise discriminate in regard to the hire and tenure of employment of our employees because of their leadership of or participation in protected concerted activities, or their membership in or activities on behalf of Congreso de Uniones Industriales de Puerto Rico or any other labor organization of their choice. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed to them in Section 7 of the National Labor Relations Act. WE WILL offer to Jose A. Crespo immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed, and WE WILL make him whole for any loss of earnings he may have suffered by reason of our discrimination against him, together with interest thereon at the rate of 6 percent per annum. All our employees are free to become, remain, or to refrain from becoming,-or remaining, members of the above-named orany other labor organization. HIJOS DE RICARDO VELA, INC. 385 HIJOS DE RicARDo VELA, Training and Service Act, as amended, after discharge INC. AND VELA from the Armed Forces. DISTRIBUTING CORP. This is an official notice and must not be defaced by (Employer) anyone. This notice must remain posted for 60 consecutive days Dated By from the date of posting and must not be altered, defaced, (Representative) (Title). or covered by any other material. Any questions concerning this notice or compliance with Note: We will notify Jose A. Crespo, if at present its provisions, may be directed to the Board's Office, Pan serving in the Armed Forces of the United States, of his Am Building, 7th Floor, P.O. Box U U, 255 Ponce de Leon right to full reinstatement, upon application, in accordance Avenue, Hato Rey, Puerto Rico 00910, Telephone with the Selective Service Act and the Universal Military 809-622-0586.