Editorial "El Imparcial" Inc.

National Labor Relations Board - Board Decisions

May 6, 1952

99 N.L.R.B. 8 (N.L.R.B. 1952)

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