Lozano Enterprises

National Labor Relations Board - Board Decisions

Jan 26, 1965

150 N.L.R.B. 1285 (N.L.R.B. 1965)

LOZANO ENTERPRISES 1285
the cards . While there is direct evidence of such misrepresentations in the case of only
several of the signatories , it is fair to assume that he must have made similar statements
to the others. It does not seem to me, moreover, that the misrepresentation is excused
because it was only partial ; namely, that the membership application cards also con-
tained-in much smaller print-authorizations to bargain . Indeed, what the record
as a whole reveals about Petroff's methods is not such as to inspire confidence.
As I have found that the Union was not entitled to recognition on behalf of the
garage and service employees, there was no reason why Grimaldi should not have
changed the payday of these employees without consulting the Union . Indeed , the fact
that the employees , including those who had signed union membership application
cards, requested this adjustment directly is only another indication that they did not
regard Petroff as their representative . They behaved in general , moreover, as if they
had never signed union cards and as if they did not intend to support the Union.
CONCLUSIONS OF LAW
1. The Respondent , Anthony O. Grimaldi, d/b/a Superior Rambler, is an employer
engaged in commerce or in an industry affecting commerce within the meaning of
Section 2 ( 6) and (7) of the Act.
2. Local 376, International Brotherhood of Teamsters, Chauffeurs , Warehousemen
and Helpers of America, is a labor organization within the meaning of Section 2(5) of
the Act.
3. The Respondent has not interfered with , restrained , or coerced his employees in
the exercise of the rights guaranteed . to them in Section 7 of the Act, and he has not
committed , therefore , any unfair labor practices affecting commerce within the
meaning of Section 8 (a) (1) of the Act.
4. By laying off and failing to reemploy Gerald Czapiewski and John Burke, Jr.,
and by discharging and refusing to reinstate Leaun Harrelson and Robert L. Weiss, the
Respondent has not discriminated with respect to their hire or tenure of employment,
and has not committed , therefore , any unfair labor practices affecting commerce within
the meaning of Section 8(a) (3) of the Act.
5. All new and used automobile salesmen , exclusive of the sales manager, and all
garage and service department employees , exclusive of the service manager, constitute,
respectively, units appropriate for the purpose of collective bargaining within the
meaning of Section 9(a) and (b) of the Act.
6. By failing and refusing to bargain with the Union as the exclusive representative
of the employees in the aforesaid appropriate units at all times since October 18, 1963,
and by unilaterally adjusting the payday of his employees , the Respondent has not
committed any unfair labor practices affecting commerce within the meaning of Sec-
tion 8(a) (5) of the Act.
RECOMMENDED ORDER
In view of my findings of fact and conclusions on law, I recommend that the Board
enter an order dismissing the complaint in its entirety.
Lozano Enterprises and Javier Martinez . Case No. 21-CA-5513.
January 26, 1965
DECISION AND ORDER
On September 30, 1964, Trial Examiner James R. Webster issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent 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 attached Decision.
The Trial Examiner, also found that the Respondent had not engaged
in certain other alleged unfair labor practices and recommended
dismissal thereof. Thereafter, Respondent filed exceptions and a
150 NLRB No. 123.
1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
brief to the Trial Examiner's Decision. The General Counsel filed
cross-exceptions with a supporting brief.' Respondent filed a reply
brief to General Counsel's cross-exceptions.
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 [Members Fanning, Brown,
and Jenkins].
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, cross-exceptions, and
briefs, and the entire record in this case, and hereby adopts the find-
ings, conclusions, and recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the Board hereby adopts as its Order the Order recom-
mended by the Trial Examiner and orders that Respondent, its offi-
cers, agents, successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order.2
I No exception was taken to the Trial Examiner 's dismissal of the complaint ' s allega-
tion of a Section 8(a) (4) violation
d Although Martinez has apparently been rehired to fill a full-time vacancy, in view
of the Respondent ' s past unfair labor practices as well as the fact that the unfair labor
practice giving rise to the instant case involves a discriminatory discharge , we shall
modify the Trial Examiner ' s Recommended Order by substituting a broad cease-and-
desist order Accordingly , the Trial Examiner ' s Recommended Order is hereby modified
by striking paragraph l(b) and substituting therefor the following as paragraph 1(b)
with a corresponding change in the notice.
"In any other manner interfering with, restraining, or coercing its employees in the
exercise of their right to self - organization , to form, join , or assist Los Angeles Typographi-
cal Union No 174, affiliated with International Typographical Union, AFL-CIO, or any
other labor organization , by discharging or otherwise discriminating against employees
because of their union membership or activity , except to the extent that such right may
be affected by an agreement requiring membership in a labor organization as a condi-
tion of employment , as authorized in Section 8(a) (3) of the Act , as amended "
The Trial Examiner ' s Recommended Order is further modified to provide for the
posting of the notice in Spanish as well as in English
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding , with all parties represented , was heard before Trial Examiner
James R. Webster in Los Angeles, California, on April 6, 7, 8, and 9, 1964, upon a
complaint of the General Counsel and answer of Lozano Enterprises , herein called
Respondent . The complaint was issued on January 30, 1964, upon a charge filed on
August 21, 1963, and amended on January 22, 1964. The complaint alleges that
Respondent violated Section 8 (a) (1), (3 ), and (4 ) of the National Labor Relations
Act, as amended, herein called the Act, by the discriminatory discharge of the
Charging Party, Javier Martinez , on August 10, 1963. Briefs have been filed by the
General Counsel and by the Respondent and have been carefully considered.
On May 15, 1964, Respondent filed a motion to correct transcript . No opposition
to the, motion has been received from the General Counsel , and I have carefully
reviewed the motion and the transcript , and find that the corrections enumerated by
LOZANO ENTERPRISES 1287
Respondent are in order. I hereby order that the transcript stand corrected as set
forth in Respondent's motion of May 15, 1964, which motion has been placed in the
formal exhibit file:
Upon the entire record, and my observation of the witnesses, I hereby make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a California corporation with its principal office and place of
business at Los Angeles, California, where it is engaged in the publication, sale, and
distribution of La Opinion, a daily newspaper in the Spanish language. The newspaper
subscribes to the services of the United Press and the International News Service and
advertises nationally sold products. In the course and conduct of its newspaper opera-
tions, Respondent annually receives a gross income in excess of $200,000 and annually
purchases and receives goods and materials valued in excess of $50,000 directly from
points outside the State of California.
I find that Respondent is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Los Angeles Typographical Union No. 174 , affiliated with International Typo-
graphical Union, AFL-CIO, herein called the Union , is and has been at all times
material herein a labor organization within the meaning of Section 2 ( 5) of the Act.
IH. THE ALLEGED UNFAIR LABOR PRACTICE
This case involves the termination of Javier Martinez on August 10, 1963, only;
no other unfair labor practice is alleged. The termination of Martinez, a linotype
operator on the evening shift, was occasioned by the reinstatement of Jose Nabor
Villasenor pursuant to a decree of the United States Court of Appeals for the Ninth
Circuit in Case No. 21-CA-4513.1 Villasenor had been a linotype operator on the
night shift prior to his discharge on August 23, 1961.
The principal issue in this case is whether or not Respondent selected Martinez for
termination because of his union activities and membership, and/or because he testi-
fied as a witness on behalf of the General Counsel in the Villasenor case, which was
heard before a Trial Examiner on October 30 and 31, 1961.
A. Operation of the linotype department
Respondent publishes a morning newspaper, the La Opinion, and it employs four
linotype operators on the night shift and three on the day shift. One Linotype machine
is not used on the day shift, and Respondent has never operated with four linotype
operators on that shift. The day shift begins about 8 a.m., and on this shift the
linotype operators set ads, both display and classified, and prepare the contents for the
editorial page, the woman's page, the amusement page, and other sections of the
newspaper that do not require last minute preparations. Immediately prior to the
reinstatement of Villasenor, Respondent employed the following linotype operators:
Day shift: Night shift:
- Sergio Manzo Arturo Duenas
Francisco Martinez Aurelio (Lorenzo) Cortez
Roberto Ocariz Javier Martinez
Substitute worker: Jesus Barunda Andres Laguna
Laguna is the foreman of the linotype department and also is in charge of the
pressroom. Eleven employees come under his supervision-the seven linotype oper-
ators and five employees in the pressroom. Santes Aldama is the immediate foreman
of the pressroom employees; he is under the supervision of and takes order from
Laguna. Laguna also operates a Linotype machine on the night shift. Laguna directs
the work of the linotype operators, assigns overtime work, and assigns shifts to
employees in that department. He hired Javier Martinez for Respondent in August
1960. I find that Andres Laguna is a supervisor within the meaning of Section 2(11)
of the Act.
Francisco Martinez and Aurelio Cortez have been working for Respondent since
about 1926, and Arturo Duenas has been in the employ of Respondent since the latter
part of the 1920's, except for a period from about 1957 to 1961.
1318 F. 2d 41, enfg 137 NLRB 128.
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Besides Javier Martinez and Jose Villasenor, the following two linotype operators
also testified in the Villasenor case in October 1961 as witnesses on behalf of the
General Counsel: Roberto Ocariz and Sergio Manzo. Foreman Laguna was present
during the trial when these employees testified.
Javier Martinez was the employee with the least seniority on the night shift, and in
fact he had the least seniority of any of the linotype operators with the exception of
Barunda, the weekend and substitute worker. There is a question as to the seniority
status of Arturo Duenas because of his absence from Respondent from 1957 to August
1961, and this issue will be discussed in subsequent paragraphs.
Since in its employment history, Respondent has utilized only seven linotype oper-
ators (six employees and a working foreman) and a substitute linotype operator, it
necessarily follows that to maintain this quota of employees in this department, one
employee would have to be terminated to make a position available for Villasenor.
When Villasenor was discharged in 1961, Arturo Duenas was reemployed to fill his
position. For this reason it would appear that Duenas might have been a more logical
choice for termination than Martinez; also, if strict seniority had been adhered to,
Barunda, the substitute worker, would have been terminated and Javier would have
been transferred from the night shift to the position of substitute worker.
As of the time of the hearing in the instant case neither Duenas nor Barunda were
dues-paying members of the Union. Barunda had not joined the Union, and Duenas
had discontinued paying his dues at some unspecified date. The Union was certified
by the Board on December 15, 1961, to represent Respondent's employees in the
composing room, pressroom, and stereotype room. The election preceding the certifi-
cation was won by the Union by a vote of 12 to 1.
B. The seniority of Duenas
Arturo Duenas started his employment with Respondent in the late 1920's, 11 days
before the birth of Ignacio Lozano, Jr., the president of Respondent and publisher of
the newspaper, La Opinion. In 1957 Duenas was given an indefinite leave of absence
for the purpose of obtaining treatment for some stomach discomfort. His absence
extended over a number of years; Respondent found it necessary to hire an employee
to replace Duenas, and apparently considered the leave of absence as terminated.
Duenas had been a linotype operator on the day shift, and when he asked to be
returned to his job, Respondent did not feel inclined to terminate any of the linotype
operators then in its employ. Duenas was later offered a position on the night shift
when one became available but he refused this shift; Lozano testified that he believed
this was at the time that Javier Martinez was employed by Respondent (August 1960).
In August 1961, when Villasenor was terminated, Duenas was again offered a position
as linotype operator on the night shift-to fill the position previously occupied by
Villasenor; Duenas accepted this position.
Lozano testified that he considered Duenas as one of the most senior employees of
Respondent-that Duenas had accumulated approximately 30 years of service with
Respondent and had been in its employ prior to his birth. Lozano testified that the
choice of employee for termination lay between Martinez and Barunda.
C. Respondent's reasons for selecting Martinez
In determining who should be laid off in order to make a position for Villasenor,
Lozano discussed the matter with Foreman Laguna and with Jose Bravo, the general
manager and secretary of Respondent. Reinstatement of Villasenor required his
employment as a linotype operator on the night shift, which was his position when
terminated; there was also a wage premium for this shift. They determined that
Javier Martinez was the employee with the least seniority on that shift. Their choice
was either terminating him or transferring him to the position of substitute worker,
and then in turn terminating Jesus Barunda. For the period from August 1960 to
approximately January 1963 Martinez had been the weekend and substitute worker.
Foreman Laguna suggested Martinez for termination, and he testified that his recom-
mendation, and Respondent's decision to terminate him, were based on a considera-
tion of the following incidents: In January 1963, when Martinez was still employed
as the weekend and substitute worker, Foreman Laguna returned to the plant one
Sunday and found a stranger operating Martinez' machine, with Martinez standing
nearby. This person had come to the plant seeking work. Laguna reprimanded
Martinez on this matter. In June 1963, it was reported to Foreman Laguna that on
a Saturday morning Martinez left his machine while it was running and was gone
from the plant for about 40 minutes. The machine was turned off by a fellow
employee. According to Laguna, when Martinez was confronted with this incident
he stated that he had to go to the bus station to pick up a relative. On a Sunday morn-
LOZANO ENTERPRISES 1289
ing in 1963, Martinez (while off duty) returned to the plant and parked his automobile
in or in very close proximity to a service entrance to the plant; he was told to move the
car as the space was needed to load mailbags on a truck. He removed his coat and
wristwatch and threatened to fight a fellow employee. This incident was reported to
Foreman Laguna who spoke to Martinez about it the following Monday. According
to Laguna, Martinez told Laguna that he was sorry, that he had been drunk, and that
it would not happen again. One Sunday in June 1963, Barunda saw Martinez come
to the plant (while off duty); he saw Martinez walk to the cardrack holding the tune-
cards of the employees, and take one of the cards and scribble something on the card.
Later Barunda walked to the cardrack and noticed that the card of employee Ocariz
had been marked upon. He reported this incident to Foreman Laguna. On another
occasion in 1961, following a weekend, some lead slugs, used in the operation of the
plant, were found outside a broken window of the plant. Only Martinez and a
composer were working at the time. Although Respondent never learned who was
responsible for the broken window and the slugs outside, is was suspected that Mar-
tinez might have been involved.2
Martinez denied any misdeeds. He denied that he had at any time been corrected
or reprimanded or had been in any trouble at Respondent; he denied that he marked
a timecard and he denied leaving his machine on a Saturday for a 40-minute period.
He testified that a friend named "Ruben" came to the shop one day but that he "never
saw" this friend operate a Linotype machine. He denied driving his automobile into
the plant. He was not questioned about the removing of his coat and wristwatch and
his challenging a fellow employee to a fight on the same occasion. Martinez also
denies the near collision that he is alleged to have had in September or October 1963
with Laguna. I cannot credit Martinez' denials. They are evasive in most instances,
as for example: He was asked, "Do you recall an occasion last September or October,
that is, 1963, when you almost had an automobile collision with Laguna?" Martinez
replied, "In September I was no longer working in the newspaper." He was asked
again about the accident "Near the intersection of 14th and Main, Los Angeles?"
And he replied, "No, I don't remember." He was asked if he had discussed the inci-
dent with Cortez and replied, "No, I don't remember." I credit the testimony of
Laguna and Cortez as to the occurrence of the near accident. Regarding the opera-
tion of Martinez' machine by a friend, he was asked, "Did he sit down and work on
a linotype machine?" He first answered, "He was not an operator there"; then when
the question was repeated he next answered it, "I never saw him." Martinez' testi-
mony on these instances reflect generally on his credibility as a witness. Regarding
the incident of Martinez' parking his car in the back of the plant one weekend and
taking off his coat and wristwatch and offering to fight a fellow employee at the time,
I credit the testimony of Antonio Medrano. No witness testified about the alleged
incident of Martinez leaving his machine on a weekend for a period of about 40 min-
utes. Foreman Laguna testified that this incident was reported to him by an employee
named Rutiaga. I credit Laguna's testimony that the report was made to him.
Rutiaga did not testify at the hearing. I credit the testimony of Barunda regarding
the marking of a timecard by Martinez on a weekend in June 1963. His testimony
was very straightforward, whereas Martinez' denial was evasive as indicated above.
At the meeting of Lozano, Bravo, and Laguna regarding the termination of an
employee to make a position available for Villasenor, they discussed the fact that
Barunda had for some time been working alone on Sundays; this is a job that Mar-
tinez had previously held. From the evaluation of the two employees on weekend
work, Laguna and Lozano testified that they reached the conclusion that Barunda
was a more desirable employee to work alone without direct supervision. Laguna
also stated that Barunda was a faster employee and committed less errors than Mar-
tinez. Barunda was hired in November 1962, about the same time that Martinez left
for his vacation and just before he was reassigned to the night shift. Laguna was
questioned about any instances of misconduct by Barunda. He stated that on an
occasion in 1964, after the termination of Martinez, Barunda came to work in an
inebriated condition, andLaguna told him to get out.
Respondent does not contend that Martinez was discharged for cause but contends
that in comparing Martinez and Barunda, Barunda appeared to Respondent to be the
better employee of the two.
2 Another incident was related that occurred after Martinez was terminated and was
not offered as a basis for his selection for termination, but primarily for credibility consid-
erations . In October or September 1963, when Foreman Laguna was leaving the plant early
one morning with employee Cortez accompanying him, Martinez, with his wife in his car,
drove his automobile in such a manner and in such proximity to Laguna' s car as to almost
cause a collision . Laguna and Cortez both credibly testified about this incident.
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. Alleged statements of Laguna at discharge of Martinez
In support of his contention that Respondent was motivated in his selection of
Martinez by discriminatory considerations rather than an objective comparison of the
two employees, the General Counsel offered testimony of statements allegedly made
by Laguna, both at the time of his notification to Martinez of his selection for termi-
nation and on other occasions. Martinez testifies that at the time he was notified of
his termination on August 8, 1963, Laguna stated to him "Javier, do you want to stop
working today, or do you want to finish your week, because the Government is com-
pelling us to employ Mr. Villasenor, and we have to give him a good shift." Mar-
tinez stated that he then answered that there were operators with less seniority, and
that Laguna stated to him, "Now, you remember I told you that all those who went
to testify in the case of Villasenor 1 was going to get even with them ... You always
refused to sign the cards that the Enterprises presented to you. We must give prefer-
ence to those who have signed them."
Martinez testified that employee Juan Baltierra heard the conversation with Laguna
on this occasion. Baltierra testified regarding the conversation as follows, "I only
heard Mr. Laguna told (tell) Javier that by orders of the Government Villasenor was
returning; that he had to be given a preference place, and that's all." Foreman
Laguna testified that he told Martinez on this occasion that due to the reinstatement
of Villasenor, someone had to leave, and that he was the one. Martinez told him
that Duenas should be the one. Laguna stated that he tried to explain to Martinez
that Duenas had much more time than he had, but Martinez did not agree. Laguna
then told him that Respondent could not give Villasenor the job of Barunda since
Barunda was only a substitute and it was required of Respondent that they give
Villasenor a full shift.
Due to my prior credibility evaluation of Martinez and due to the fact that the
witness Baltierra does not corroborate Martinez as to the "crucial" statement Martinez
attributes to Laguna, indicating a discriminatory motive in his selection of Martinez,
I credit the versions of Laguna and Baltierra and discredit that of Martinez. Mar-
tinez also testified that after he appeared as a witness in the Villasenor. case in October
1961, Laguna stated to him that he was going to get even with the employees who
testified for Villasenor. I do not credit this testimony of Martinez. There is no evi-
dence that any action has been taken by Laguna (other than the 'termination of
Martinez in question) against the three Linotype operators who testified at-the hearing
(Ocariz, Martinez and Manzo); in fact, after the Villasenor hearing, Martinez was
promoted from the substitute linotype position to a regular full-time job on the
evening shift.
E. Statement of Lozano to Martinez
The next day Martinez talked with Lozano about the layoff and asked him if he
thought it was just that he be terminated. Lozano replied, "No, I don't think it is
just, that you or anyone else be discharged, but we are being forced to reinstate
Villasenor, and we have to make room for him and there is no alternative but to let
you go." Martinez then asked about Duenas and Barunda. Lozano stated, "As far
as Duenas is concerned, we do not consider him junior to you by any means. He
has been an employee of the company for-well, since the late twenties; granted, he
has been gone for a period of time, but we certainly recognize and respect the senior-
ity that he has established in the thirty-odd years he has been with the company, just
the same as we will when we are able to rehire you, we will recognize the seniority
that you have built up in the time you have been here." He told Martinez that at
.the very first opportunity when a vacancy existed, he would have first call. Martinez
was allowed to finish the week prior to his termination.
Lozano testified that he asked Martinez, "If we were to offer him the substitute
work would he accept and he said, flatly, `No.' " Lozano also testified that no offer
was actually made, nor to be made, as it had already been determined that Barunda
was to be retained and Martinez terminated. Martinez testified he was offered "Sun-
days" only and would have accepted if given all the substitute hours. I_ cannot con-
clude from this testimony that Martinez would have rejected Barunda's position if it
had been offered to him, since he had inquired of Lozano why Duenas or Barunda
had not been selected before him I find that, irrespective of how Lozano may have
phrased the hypothetical offer, Martinez did not understand it to be Barunda's position.
Martinez also testified, and Lozano denied, that on his inquiry about Duenas and
Barunda, Lozano stated, among other things, that he had "other obligations." Lozano
did explain other considerations than seniority that went into Respondent's selection
of Martinez; and it is very likely that he used words of like import, but, for reasons
previously stated I do not credit Martinez' testimony on the use of these words.
LOZANO ENTERPRISES 1291
F. Prior 8(aXl) conduct by Laguna
In the Villasenor case, Case No. 21-CA-4513, the Trial Examiner found that
Laguna in 1961 interrogated Martinez and promised him "permanent employment"
if he would abandon the Union; that Laguna told Ocariz that he could obtain a wage
increase for all employees if they would abandon the Union ; and that Laguna told
Villasenor that if he would agree to leave the Union, he would immediately start
earning $2.50 per hour and he would be assured of a job for the rest of his life. The
Board adopted the Trial Examiner 's Decision and the United States Court of Appeals
for the Ninth Circuit enforced the Order.3
Respondent has complied with the affirmative provisions of the Board 's Order and
court decree with the exception of the backpay due Villasenor ; a backpay hearing has
been held on this point.
G. Union animus
Evidence was offered in the instant case of the animus of Laguna toward the Union,
but there is no contention that he violated Section 8(a)(1) by any of his statements
or conduct. Laguna told Juan Baltierra in November 1963 that Ocariz had some
infernal machinations, that he was nobody there at the plant , and that Baltierra, by
paying attention to Ocariz , would go down in rank. Ocariz is the chairman for the
Union at Respondent and collects the dues from the other dues-paying members;
Baltierra was a dues-paying member of the Union. In January 1964, Laguna told
Villasenor that "if you yourself recognize that you work here and you live from what
you earn here, you should be with the company."
Martinez also testified about conversations with Laguna in which Laguna endeav-
ored to get him to abandon the Union . He told Martinez on one occasion in about
October 1962 that he should make up his mind to leave the Union alone-that his
future is with the company. Later in the same year, Laguna told Martinez that he
noticed that Martinez had not made up his mind to leave the Union, as he saw that
Martinez was still paying his dues. Martinez replied on the occasion that he was
a member of the Union and had to pay them, and Laguna replied, "You know best."
In March 1963 Laguna's wife give birth to a baby and Laguna told Martinez that
she needed someone to help her for a few days. Martinez agreed to have his wife
help Laguna 's wife until the latter was up and about. On the days that Martinez'
wife was so employed, Laguna would take Martinez to his home in the evening after
work (after 1 a.m ), and Martinez would pick up his wife and return to his own home.
On one or more of these occasions Laguna told Martinez that he should leave the
Union alone and that his future lay on the,side of the Enterprise.
Laguna denied talking with Martinez about his getting out of the Union, but testi-
fied to a discussion with Martinez about union dues. He testified, "I do not know
what brought it up that he told me he had not paid dues, or that he had not given
Ocariz money, or something like that. And then I told him, `You are paying dues,
because you want to.' And then he made -me understand that he had to pay them
because he was afraid that if he were not in the Union he was going to be fired from
La Opinion ." Laguna was asked what did be reply to Martinez , and he answered,
"I did not say anything."
The testimony of Martinez to the solicitations by Laguna to abandon the Union is
supported by the credible testimony of Baltierra and Villasenor ; 4 and from an evalu-
ation of Laguna's entire testimony on the subject , I cannot credit his denial. His
testimony strongly suggests that the subject of Martinez' leaving the Union was
involved in some of their discussions . On the other hand, I cannot credit Martinez'
testimony as to a letter or card that Laguna allegedly wanted him to sign in these
discussions . He did not actually read any such letter or card, and neither Baltierra
nor Villasenor , or any other witness, mentioned any such letter or card , and Laguna
denied it.
H. Reemployment of Martinez
In February 1964 Sergio Manzo took a 6-month leave of absence to go to Mexico
to look for employment in that country for the reason that his wife did not like
living in Los Angeles. Lozano wrote Martinez and told him that Respondent would
be willing to rehire him to fill Manzo's position on a temporary basis if Manzo came
back within the 6-month period, or on a permanent basis if Manzo decided to remain
9 137 NLRB 128 enfd 318 F. 2d 41
* I place considerable confidence in the testimony of Baltierra His testimony was
not all favorable to the General Counsel's case, in that he did not corroborate all of
Martinez ' testimony as to his termination conversation with Laguna
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in Mexico. Lanzo was not at the plant when Martinez returned to inquire about
reemployment, and he talked with Laguna. Laguna told him to return the next day,
which he did. Laguna called five persons to be witnesses to Martinez' reply as to
whether or not he would accept the position under the terms and conditions set forth
in the letter. Martinez accepted the employment and returned to work for Respond-
ent in February 1964.
1. Conclusions
From an analysis of the evidence of the comparative faults of Martinez and
Barunda, the evidence supports Respondent's contention that Martinez was the
employee with more instances of objectionable conduct to his credit. On the other
hand, Martinez was the senior employee; he was a dues-paying member of the Union
and Barunda was not; Laguna was displeased with Martinez' continued union affilia-
tion , as evidenced by his solicitations to him and by his remarks about Ocariz and
union adherence to other employees. My task is to determine from the evidence
whether or not Martinez would have been selected for termination if he had not been
a member of the Union; or, would the selection have been the same if Barunda had
been the union member and Martinez had been "with the company." Or, to state it
another way, was Martinez selected because of the instances of misconduct enumer-
ated by Respondent, or was he selected because he was a dues-paying member of the
Union and refused to abandon it?
In the eyes of Respondent the instances of misconduct, occurring over the 3 years
of his employment, were not of such magnitude as to warrant discharge; in fact, it
did not prejudice his recall to employment at the very first opening in February 1964.5
As to the value or weight given to seniority by Respondent, great significance was
given to seniority in the retention of Duenas. Martinez was told that the seniority
he had built up in the time he had been working for Respondent would be recognized
when rehired. Thus, irrespective of any misconduct, he would be, and was, offered
employment before any new employee. Martinez had worked for Respondent 3 years
when terminated, and Barunda had worked for Respondent about 10 months.
Another item of evidence, which cuts both ways, is the promotion of Martinez
from the substitute position to full employment on the night shift in January 1963.
This indicates the lightness with which Respondent regarded any misdeeds that
occurred prior to that time and it indicates Martinez' merit; on the other hand, it also
shows that his dues-paying status with the Union did not interfere with his advance-
ment . At that time, with Barunda in its employ, Respondent chose Martinez for the
night shift rather than Barunda. And this was after Laguna's solicitations of Mar-
tinez about October 1962 and later the same year to abandon the Union. It was
also almost immediately after the incident on a Sunday in January 1963, when
Martinez was discovered by Laguna letting a nonemployee operate his Linotype
machine.
In the Villasenor case it was found that in 1961 Laguna offered Martinez "perma-
nent employment if he would abandon the Union," and that he made the same offer
to Villasenor before handing him his discharge notice. Respondent has posted notice
in said case and reinstated Villasenor, and there is no accusation of an independent
violation of Section 8(a) (1) in this case. But, Laguna, without threats or promises,
has continued to solicit Martinez and Villasenor to abandon the Union. Immediately
prior to the reinstatement of Villasenor in August 1963, the dues-paying members of
the Union, out of the seven linotype operators, were Javier Martinez, Sergio Manzo,
and Roberto Ocariz.
Summing up this analysis of the evidence-at first impression, it appeared to me
that Duenas would have been the most "logical" choice for termination. This would
have returned Respondent's linotype personnel complement to the status quo prior
to Villasenor's discharge. But the considerations advanced by Respondent for retain-
ing Duenas-his many years of prior employment by Respondent and his age-
I credit as the basis for his retention.
I find that Respondent has not seriously regarded Martinez' misdeeds-he was
advanced from substitute worker to the day shift in January 1963, shortly after allow-
ing a friend to operate his Linotype machine, and he was recalled at the first opening,
as he was told he would be.6
"And thin includes the near coi1i,,ion incident in September 1083, after Martinez was
terminated
6 Likewise, Barunda's act of misconduct in reporting to work inebriated on one occasion
resulted in no action by the Respondent other than sending hum home for the day.
(This occurred after the terniiation of Martinez )
LOZANO ENTERPRISES 1293
In 1961 as found in the Villasenor case, Laguna had offered Martinez permanent
employment if he would abandon the Union and, although Respondent ceased and
desisted from making such offers after the Board Order and court decree in said case,
Laguna did continue to solicit Martinez and others to abandon the Union , and he did
inform Baltierra that by paying attention to Ocariz ( the union chairman ) he would
go down in rank; and when it became necessary to terminate an employee , he passed
over and retained a nonunion employee who had only 10 months of seniority with
the Respondent , and selected an employee who had not acceded to his solicitations
to abandon the Union ( and thereby not accepted his offer for permanent employ-
ment ), and one who had given him such a definite answer in the negative in the
spring of 1963.
I conclude from the evidence that Laguna recommended , and Respondent selected,
Martinez for termination because he failed and refused to abandon the Umon, and
thereby Respondent violated Section 8(a)(3) and ( 1) of the Act. I also conclude
that Martinez was not selected because of his appearance and testimony in the Villa-
senor case , and that therefore Respondent has not violated Section 8(a)(4) of the
Act. Had Respondent 's selection of an employee for termination not been based on
discriminatory considerations , Martinez would have been transferred to his old posi-
tion of substitute worker.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III , above, occurring in connec-
tion with the operations of 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 thereof.
V. THE REMEDY
Having found that Respondent has engaged in and is engaging in certain unfair
labor practices , I shall recommend that Respondent be ordered to cease and desist
therefrom and to take certain affirmative action designed to effectuate the policies
of the Act.
As I have found that Respondent discriminatorily discharged Javier Martinez, I
shall recommend that it offer him immediate and full reinstatement to the substitute
linotype position or such other position as he would now occupy in the absence of the
discrimination against him, without prejudice to seniority and other rights previously
enjoyed , and make him whole for any loss of earnings he may have suffered by rea-
son of the discrimination against him, by ,payment to him of a sum of money equal
to that which he would have earned as wages from the date of the discrimination
against him to the date of a proper offer of reinstatement , less interim earnings, the
amount to be computed in accordance with the formula set forth in F. W. Woolworth
Company, 90 NLRB 289, to which should be added interest at the rate of 6 percent
per annum as prescribed in Isis Plumbing & Heating Co ., 138 NLRB 716.7 I shall
also recommend that Respondent be ordered to preserve and make available to the
Board or its agents , upon request, for examination and copying , all pertinent books
and records which may be necessary to analyze and compute the amount of backpay
due and the right to reinstatement under these recommendations . And I recommend
that Respondent be ordered to post appropriate notice to employees as provided in
the Recommended Order set forth below.
Upon the basis of the findings of fact and the entire record in the case, I make the
following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Los Angeles Typographical Union No . 174, affiliated with International Typo-
graphical Union , AFL-CIO, is a labor organization within the meaning of Section
2(5) of the Act.
7 As Martinez would have been transferred on August 10, 1963, to the substitute posi-
tion, in the absence of the discrimination , his loss of wages should be computed on that
basis until such time as he was placed on the day shift in February 1964 in the position
previously occupied by Manzo. If this position developed to be a temporary assignment
because of the return of Manzo, then calculation of lost wages should continue from
the termination of such temporary assignment until a proper offer of reinstatement.
1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By discharging Javier Martinez because of his union activities , thereby discour-
aging membership in a labor organization , Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)(3) and ( 1) of the Act.
4. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2 ( 6) and ( 7) of the Act.
5. Respondent 's discharge of Javier Martinez on August 10, 1963, was not a vio-
lation of Section 8 (a) (4) of the Act as alleged.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact,, conclusions of law, and the entire
record herein , and pursuant to Section 10(c) of the Act, I recommend that Respond-
ent, Lozano Enterprises , its officers , agents, successors , and assigns , shall:
1. Cease and desist from.
(a) Discouraging membership in or activities on behalf of Los Angeles Typo-
graphical Union No. 174 , International Typographical Union, AFL-CIO, or any
other labor organization of its employees , by discharging or in any other manner
discriminating against employees in regard to their hire or tenure of employment of
any term or condition of employment.
(b) In any like or related manner interfering with , restraining , or coercing employ-
ees in the exercise of their rights under the Act, except to the extent that such rights
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.
2. Take the following affirmative action , which I find will effectuate the policies
of the Act:
(a) Offer Javier Martinez immediate and full reinstatement to the substitute lino-
type position , or such other position as he would have occupied in the absence of
the discrimination against him, without prejudice to his seniority or other rights or
privileges , and make him whole in the manner set forth in the-section of the Decision
entitled "The Remedy." In the event Martinez is serving in the Armed Forces of the
United States, notify him of his right to full reinstatement upon application in accord-
ance with the Selective Service Act and the Universal Military Training and Service
Act of 1948 , as amended , after discharge from the Armed Forces.
(b) Preserve and, upon request , make available to the National Labor Relations
Board or its agents, for examination and copying , all records necessary for the deter-
mination of the amount of backpay due under these recommendations.
(c) Post at its plant in Los Angeles , California, copies of the attached notice
marked "Appendix ." 8 Copies of said notice, to be furnished by the Regional Direc-
tor for Region 21, shall, after being duly signed by the Respondent or its authorized
representatives , be posted by Respondent immediately upon receipt thereof, and
maintained by it for a period of 60 consecutive days thereafter , in conspicuous places,
including all places where notices to employees are customarily posted. Reasonable
steps shall be taken to insure that said notices are not altered , defaced, or covered by
any other material.
(d) Notify the Regional Director for Region 21, in writing, within 20 days from
the date of the receipt of this Decision what steps it has taken to comply herewith.9
It is recommended that the complaint be dismissed insofar as it alleges a violation
of Section 8(a) (4) of the Act.
It is further recommended that unless, within 20 days from the date of the receipt
of the Trial Examiner's Decision , the Respondent shall notify the said Regional
Director , in writing , that it will comply with the foregoing Recommended Order, the
National Labor Relations Board issue an order requiring Respondent to take the
aforesaid action.
8 In the event that this Recommended order be adopted by the Board , the words "a
Decision and Order" shall be substituted for the words " the Recommended Order of a
Trial Examiner" in the notice . In the further event that the Board ' s Order be enforced
by a decree of a United States Court of Appeals , the words "a Decree of the United
States Court of Appeals , Enforcing an Order" shall be substituted for the words "a
Decision and Order."
9In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read: "Notify said Regional Director , in writing , within '10 days
from the date of this Order , what steps the Respondent has taken to comply herewith."
BEAR RIVER LUMBER CO., INC.
APPENDIX A
NOTICE TO ALL EMPLOYEES
1295
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify you that:
WE WILL NOT discourage membership in or activity on behalf of Los Angeles
Typographical Union No. 174, International Typographical Union, AFL-CIO,
or any other labor organization, by discharging any of our employees, or in any
other manner discriminating against employees in regard to their hire, tenure,
or employment or any term or condition of employment.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of rights guaranteed to them by Section 7 of the Act,
or to refrain from the exercise of any or all of such rights, except to the extent
that such rights 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 Javier Martinez immediate and full reinstatement to the sub-
stitute linotype position, or such other position as he would have occupied in
the absence of the discrimination against him, without prejudice to seniority or
other rights and privileges previously enjoyed, and make him whole for any loss
of earnings he may have suffered by reason of our discrimination against him.
All our employees are free to become, remain, or refrain from becoming or remain-
ing members of any labor organization, except to the extent that such right may be
affected by an agreement requiring membership in a labor organization as a condi-
tion of employment, as authorized by Section 8(a)(3) of the Act.
LOZANO ENTERPRISES,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
NOTE.-We will notify Javier Martinez if presently 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 of
1948, as amended, after discharge from the Armed Forces.
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.
Employees may communicate directly with the Board's Regional Office, 849 South
Broadway, Los Angeles, California, Telephone No. 688-5206, if they have any ques-
tion concerning this notice or compliance with its provisions.
Bear River Lumber Co ., Inc. and Teamsters , Chauffeurs, Ware-
housemen and Helpers of America , Local 150 , International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America ,' Petitioner. Case No. 20-RC-6060. Janu-
a,mj 26, 1965
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Hearing Officer
' The name of the Petiitoner appears in the caption as amended at the hearing.
150 NLRB No. 125.
775-692-65-vol. 150--83