Lozano Enterprises

National Labor Relations Board - Board Decisions

Apr 29, 1965

152 N.L.R.B. 258 (N.L.R.B. 1965)

258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT threaten employees with economic reprisals or changes of work-
ing conditions if the above-named Union gets into the plant.
WE WILL NOT instruct employees to stay out of the Union and be neutral.
WE WILL NOT promise any employee his old job back if he abandons the
Union.
WE WILL NOT suggest that employees circulate a loyalty pledge to the
Company.
WE WILL NOT circulate and obtain employee signatures on an antiunion
petition.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of the rights to self-organization, to form labor organi-
zations, to join or assist Textile Workers Union of America, AFL-CIO, CLC, or
any other labor organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the purposes of
collective bargaining or other mutual aid or protection, or to refrain from any
and all such activities.
WE WILL offer to Alton Fellers, Louis Grunder, Robert Ruiz, Daniel Rod-
riguez, Victor Zmeskal, and Ramon Martinez immediate and full reinstatement
to their former or substantially equivalent positions, without prejudice to their
seniority and other rights and privileges previously enjoyed.
WE WILL make whole Alton Fellers and Louis Grunder for any loss of pay
suffered by them by reason of the discrimination practiced against them, in
accordance with the Recommended Order of the Trial Examiner's Decision.
All our employees are free to become, remain, or refrain from becoming members
of the above-named labor organization.
LONE STAR TEXTILES, INC., GUADALUPE VALLEY
COTTON MILLS DIVISION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion 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, 6617
Federal Office Building, 515 Rusk Avenue, Houston, Texas, Telephone No. Capitol
8-0611, Extension 4371, if they have any question concerning this notice or com-
pliance with its provisions.
Lozano Enterprises and Jose Nabor Villasenor . Case No. 21-CA
4513. April 29,1965
SUPPLEMENTAL DECISION AND ORDER
On May 15, 1962, the National Labor Relations Board issued its
Decision and Order in the above-entitled proceeding,' finding, among
other things, that the Respondent - had unlawfully discriminated
against Jose Nabor Villasenor, and ordering the Respondent to offer
him immediate and full reinstatement to his former or substantially,
equivalent position, and to make him whole for any loss of pay he may
have suffered by reason of the discrimination against him. Thereafter,
the Board's Order was enforced by the United States Court of Appeals
for the Ninth Circuit?
1137 NLRB 128.
2 N.L R.B. v Lozano Enterprises, 318 F. 2d 41.
152 NLRB No. 25.
LOZANO ENTERPRISES 259
Pursuant to a backpay specification and appropriate notice issued
by the Regional Director for Region 21, a hearing was held on March 2,
3, and 17, 1964, before Trial Examiner Henry S. Sahm, for the pur-
pose of determining the amount of backpay due the discriminatee.
On January 22, 1965, the Trial Examiner issued his Backpay Deci-
sion. The Respondent filed exceptions to the Backpay Decision, to-
gether with a supporting brief.
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 McCulloch and Members Brown and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the backpay hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the entire
record in this case, including the Trial Examiner's Backpay Decision
and the Respondent's exceptions and brief, and hereby adopts the
findings,3 conclusions, and recommendations of the Trial Examiner
with the following additions and modifications.
Villasenor had been employed by the Respondent as a Linotype
operator on a Spanish language newspaper. During the approx-
imately 2-year period after he was discharged, he registered daily with
his union, which was attempting to locate a job for him, and regis-
tered weekly with the California Department of Employment for the
39 weeks for which he drew unemployment compensation payments.
In addition, he applied for work at over 15 establishments, most of
which hired Linotype operators, and requested friends and acquaint-
ances to let him know of job opportunities. Although he did not limit
himself to seeking jobs as a Linotype operator, but sought and accepted
various jobs which were offered him, his job opportunities were limited
because of his unfamiliarity with the English language. In order to
increase these opportunities, Villasenor took several courses in English
during the period of his unemployment, but he continued to search for
employment while taking these courses. Throughout the period of
his unemployment Villasenor did not refuse any job referral or job
offer and, it is clear from the entire record, he at all times maintained
his availability for work. Accordingly, we find, in substantial agree-
ment with the Trial Examiner, that Villasenor exhibited due diligence
in his efforts to obtain work.4 There is no merit in the Respondents'
contention that he failed to exhibit due diligence because he failed to
apply to other possible job sources a
$ The parties stipulated to the amount of pay Villasenor would have received if he
had not been discharged , and to the amounts of his interim earnings.
* Ripley Manufacturing Company, 150 NLRB 1696; Bonnar-Vawter, Inc., 135 NLRB
1270, 1278.
S See Mastro Plastics Corporation and French -American Reeds Manufacturing Co., Inc.,
136 NLRB 1342, 1359.
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We likewise find no merit in the Respondent's contention that deduc-
tions should be made from Villasenor's backpay of-lost earnings dating-
from the time that he quit his job as janitor at the Forum Cafe. As,
the Trial Examiner found, Villasenor, a skilled Linotype operator with
30 years' experience, was justified in quitting a janitorial job, which-
was unsuited to a person of his skill and experience, which paid less
than half the weekly wages he would have been receiving from the.
Respondent if he had not been discriminatorily discharged, and which
clearly did not meet the "desirable new employment" standard which
the Supreme Court has established in such cases.6
The Respondent also urges that the "special assistance" payments.
which the Union made to Villasenor during his discharge period should
be deducted from his backpay award. The Trial Examiner found,,
however, as do we, that Villasenor and the Union had agreed that
Villasenor would repay these funds to the Union, contingent upon his.
receiving a backpay award. Moreover, there is no basis in this record-
for finding that these were earnings, as there is nothing in the agree-
ment or in the record to indicate that Villasenor was to perform serv-
ices for these payments.?
ORDER
On the basis of the foregoing, the Trial Examiner's Backpay Deci-
sion, and the entire record in this case, the National Labor Relations.
Board hereby orders that the Respondent, Lozano Enterprises, Los.
Angeles, California, its officers, agents, successors, and assigns, shall
pay backpay to Jose Nabor Villasenor as set forth in the Trial Exam-
iner's Backpay Decision; 8 and that the Regional Director for RegionL
21 is authorized to take appropriate steps consistent with this Supple--
mental Decision and Order, without prejudice to the conduct of addi-
tional backpay proceedings.
9 Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177, 197-220. See also Mastro Plastics
Corporation, supra, at 1352; Brotherhood of Painters, Decorators & Paperhangers etc.-
(Lauren Burt, Inc.), 114 NLRB 295, 299-300 , cf. Knickerbocker Plastic Co., Inc.,
132 NLRB 1209, 1214. N.L.R.B. v. Southern Silk Mills, Inc., 242 F. 2d 697 (C.A. 6),
cited by the Respondent , held in effect that a dischargee must, if necessary to obtain in-
terim employment , accept "other available , suitable employment at a somewhat - lower-
rate of pay." [Emphasis added.) There is, however , no indication in that or any
other court opinion that janitorial work would be deemed to be suitable employment for-
a skilled Linotype operator , or that a dischargee must accept a reduction in wages of the
extent here involved.
7 See Standard Printing Company of Canton, 151 NLRB 963.
8 For the reason stated in Nassau & Suffolk Contractors ' Association, Inc., 151 NLRB-
972, we direct the addition of interest at the rate of 6 percent per annum of the
amount of backpay, such interest to accrue from the date of this Order.
TRIAL EXAMINER'S BACKPAY DECISION
This is a proceeding on a backpay specification issued by the Regional Director on
December 18, 1963 , as amended on February 13, 1964 , for the purpose of deter-
mining the amount of backpay which will make whole the discriminatee , Villasenor,.
in the manner directed by the Board on May 15, 1962, in its Decision and Order--
LOZANO ENTERPRISES 261
'herein reported in 137 NLRB 128, and enforced by a decree of the United States