American Furniture Co.

National Labor Relations Board - Board Decisions

Aug 31, 1960

128 N.L.R.B. 1409 (N.L.R.B. 1960)

AMERICAN FURNITURE COMPANY 1409
American Furniture Company and International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and Helpers, Local
Union 492. Case No. 33-CA-616. August 31, 1960
DECISION AND ORDER
On May 12, 1960, Trial Examiner Wallace E. Royster issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent has 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
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief.
The Board' has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed?
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case,3 and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, except as noted below.'
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, the American
Furniture Company, Albuquerque, New Mexico, its officers, agents,
successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union 492,
or in any other labor organization, by discharging or otherwise dis-
criminating in regard to its employees' hire or tenure of employment
or any term or condition of employment.
I Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as
amended, the Board has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Jenkins and Fanning).
2 The Respondent contends that the Trial Examiner was biased and prejudiced. We
hereby reject this contention as the record does not support it.
3 The Respondent's request for oral argument is hereby denied as the record, including
the exceptions and brief, adequately presents the issues and the positions of the parties
* We do not adopt the following three sentences in section III of the Intermediate
Report which are in any event unnecessary to our decision:
The pretense by Blaugrund that he was innocent of any knowledge of union ac-
tivity among the warehouse employees until December 8 is found to be a pretense.
Romero did not, I am convinced, make the layoffs for reasons known only to him.
Blaugrund was made aware of the situation as Romero believed it to exist and
surely directed Romero to bring about the termination of union supporters.
128 NLRB No. 129.
1410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Threatening to close the business, interrogating employees
about their union activity, suggesting the possibility of wage benefits
if employees would refrain from union activity, conditioning reem-
ployment upon abandonment of the Union, or in any other manner
interfering with, restraining, or coercing employees in the exercise of
their right to self-organization, to form labor organizations, to join
or assist the Union or any other labor organization, to bargain col-
lectively 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 or all such activ-
ities except to the extent that such rights may be affected by an agree-
ment requiring membership in a labor organization as a condition of
employment in the manner and to the extent authorized in Section
8(a) (3) of the Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) To the extent that it has not already done so, offer to Victor
Escarcida, Henry Trujillo, Alex Sandoval, Cleofas Fresquez, Benny
Martinez, Rudy Serna, Manuel Montoya, Gregorio Fresquez, Adon
Padilla, Eloy Montoya, Valentin Montoya, Elias Montoya, Eliseo
Lucero, and Candido Jiron, immediate and full reinstatement each to
his former or substantially equivalent position and make each whole
for any loss of earnings in the manner set forth in the section of the
Intermediate Report entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its
agents all social security payment records, payroll records, personnel
records and reports, and all other such data necessary for computation
of backpay due.
(c) Post at its warehouse in Albuquerque, New Mexico, copies of
the notice attached hereto marked "Appendix." 5 Copies of said
notice, to be furnished by the Regional Director for the Sixteenth
Region, shall, after being duly signed by the Respondent, be posted
by it immediately upon receipt thereof and be maintained 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 by the Respondent to insure that such notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Sixteenth Region, in
writing within 10 days from the date of this Order, what steps the
Respondent has taken to complyherewith.
5In 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."
AMERICAN FURNITURE COMPANY
APPENDIX
NOTICE TO ALL EMPLOYEES
1411
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 wrLL offer, to the extent not yet done, to Victor Escarcida,
Henry Trujillo, Alex Sandoval, Cleofas Fresquez, Benny Mar-
tinez, Rudy Serna, Manuel Montoya, Gregorio Fresquez, Adon
Padilla, Eloy Montoya, Valentin Montoya, Elias Montoya, Eliseo
Lucero, and Candido Jiron, immediate and full reinstatement
each to his former or substantially equivalent position without
prejudice to seniority or other rights and privileges previously
enjoyed.
WE WILL make each of the employees named above whole for
any loss of earnings sustained by each of them by reason of the
discrimination against them.
WE WILL NOT by means of layoffs or discharges or by interro-
gations concerning union activity, by threats to close the business,
by suggesting the possibility of a wage increase to employees who
will forego union activity, by conditioning reemployment upon
abandonment of the Union, or in any other manner interfere with,
restrain, or coerce our employees in the exercise of their rights to
self-organization to form, join, or assist International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers,
Local Union 492, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, to engage
in concerted activities for the purposes of collective bargaining
or other mutual aid or protection, or to refrain from any or all
such activities 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, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
WE WILL NOT discriminate in regard to hire or tenure of em-
ployment, or any term or condition of employment, against any
employee because of membership in or activity on behalf of any
labor organization, and, all our employees are free to become or
remain or refrain from becoming or remaining, members of the
above-named Union or any other labor organization, except to
the extent that such rights may be affected by an agreement re-
quiring membership in a labor organization as a condition of
employment as authorized in Section 8 (a) (3) of the Act, as modi-
1412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fled by the Labor-Management Reporting and Disclosure Act of
1959.
AMERICAN FURNITURE COMPANY,
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.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This matter was tried before me, Wallace E. Royster, Trial Examiner, in Albu-
querque, New Mexico, on March 15, 1960. At issue is whether American Furniture
Company, herein the Respondent, threatened and interrogated employees concern-
ing their relationship to International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers, Local Union 492, herein the Union and unlawfully and
discriminatorily laid-off 14 employees. The complaint of the General Counsel
alleges that the Respondent has engaged in unfair labor practices affecting com-
merce within the meaning of Sections 8(a)(1) and (3) and 2( 6) and (7) of the
National Labor Relations Act, 61 Stat. 136, herein the Act.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The Respondent is a New Mexico corporation with a place of business in
Albuquerque, New Mexico, where it is engaged in the retail sale of furniture,
housewares, and related products. During the 12-month period preceding the
issuance of the complaint the Respondent's gross revenues exceeded $500,000. Dur-
ing the same period Respondent imported goods from points outside the State of
New Mexico having a value in excess of $50,000.
II. THE ORGANIZATION INVOLVED
The Union is a labor organization admitting to membership employees of the
Respondent.
III. THE UNFAIR LABOR PRACTICES
Victor Escarcida, who became Respondent's employee in April 1956, testified that
in late November 1959 i he spoke with a representative of the Union in connection
with organizing Respondent's warehouse employees. A meeting date for December
6 was arranged and Escarcida invited a number of warehouse employees to attend.
At the close of the workday on December 4, Candelario Romero, the warehouse
superintendent, told Escarcida that he was laid off because there was insufficient
work at hand. Escarcida asked if there was not another reason for the layoff.
Romero finally answered, in the words of Escarcida, that the latter "was a pretty
smart cooky and could put two and two together and come up with the answer."
The meeting of employees with a union organizer was held on Sunday, December
6. Fourteen of the forty-six warehouse employees attended and many of them
signed union designation cards.
On December 7 or 8, Escarcida approached Romero and asked to be reemployed.
Escarcida said that he regretted his attempt to organize the men into a union.
According to Escarcida, Romero laughed and said that this was not the first time
that such an effort had been made and that on other occasions it had been un-
successful. Escarcida persisted in his request that he be rehired but Romero said
that he could not bring this about; that Escarcida would have to talk to Respondent's
president, Emmanuel Blaugrund. Escarcida telephoned Blaugrund in the matter
and was told that the decision was one for Romero. Escarcida then abandoned his
effort to regain his job.
1 All dates referred to are in 1959 except where otherwise stated.
AMERICAN FURNITURE COMPANY 1413
Henry Trujillo was hired for work in the warehouse in June 1958. Trujillo
testified that he first heard of a purpose to organize the warehouse employees on
December 4 when Escarcida invited him to attend a meeting. Trujillo went to the
meeting on December 6 and signed a union designation card. At about 9 a.m. on
December 7, according to Trujillo, Romero asked him how many had attended the
meeting and if any of them had "signed up" for the Union. Trujillo answered that
all of the warehouse workers had been there and that all had "signed up." A little
later in the morning, Romero called Trujillo aside, told him that Blaugrund would
close the doors rather than deal with a union, and that if the men would forget
about the Union he would attempt to arrange a wage increase. Trujillo indicated
that he did not place much trust in Romero's talk of an increase, whereupon Romero
said that Trujillo would be let go. At about 10 that morning, Romero told Trujillo
to leave the warehouse. The next morning, December 8, Trujillo went to the office
for a paycheck. Seeing him, Romero told him to return to work. Trujillo did so
and is still employed.
Cleofas Fresquez was hired in April 1957. He was informed of the December 6
meeting by Escarcida, attended, and signed a union designation card. At the close
of the workday on December 7, Romero handed him his check saying that Fresquez
was laid off. With other employees who had suffered the same fate, Fresquez stood
on the street near the warehouse, discussing the development when Romero ap-
proached. A rather lengthy conversation ensued during which, according to
Fresquez, Romero said that he did not like the Union and that Blaugrund would
close the doors rather than have the Union "come in." Romero asked the group
to get together and agree to abandon their plan to have a union; that if they would
do so, they could have their jobs back in about a week. Fresquez went back to
work the following Monday, December 14. On this occasion Romero said, "As
long as the fellow from the union doesn't bother me, I won't bother you guys."
Fresquez is still employed by the Respondent.
Eloy Montoya was hired by the Respondent in November 1955. Learning of the
organizing meeting from Escarcida, he attended and signed a designation card. At
about 10 the next morning, December 7, Romero told him, Montoya testified, "I hate
to tell you . . . after knowing and trusting you for so long, I have to lay you off."
Montoya pressed for a reason but Romero said merely that Montoya should know
what he had done. Romero then suggested that he and Montoya speak to Blaugrund;
that Romero was hopeful that a wage rise might be arranged. A moment or two
later, in an about-face, Romero told Montoya to continue at work. At the close
of the day, Romero told Montoya and others that he was under instruction to lay
off 10 men. Montoya asked for a reason and Romero replied that there was a lack
of work. Another affected employee, Alex Sandoval, commented that all the men
who had attended the meeting were being laid off. Romero said he knew nothing
about that. According to Montoya all 10 of those laid off on December 7 had
attended the union meeting. Somehow learning that he could return to work,
Montoya did so on December 14. On this occasion Romero said that if the Union
would let him alone he would not bother the men. Believing that he was to be paid
for the days that he did not work in the week of December 7, Montoya protested
to Romero that his check on December 15 did not reflect that payment. According
to Montoya, Romero said that the payment would be made later. At the close of
the workday on December 15, Montoya was again laid off and has not since worked
for the Respondent.
Alex Sandoval was hired in April 1957. Invited by Escarcida, Sandoval attended
the union meeting on December 6 and signed a designation card. At the close of
the day on December 7, Sandoval and nine others were told by Romero of their
layoff. Sandoval commented that all who had attended the union meeting were
being laid off. Romero professed ignorance of any connection between the two
happenings. Sandoval left the warehouse and met at a nearby point with others
who had been laid off. Romero soon joined them and offered the advice that they
could not organize the employees; that Blaugrund would close the doors rather
than deal with a union. Romero suggested that if the men would "get the heat off"
he would be willing to take them back to work in a week. On December 8,2
Sandoval telephoned Romero, saying that he had dropped interest in the Union.
Romero said that Sandoval and some others could come back to work the following
Monday and commented, "You guys sure put me in a spot. I even had to go on
deliveries myself." When Sandoval went back to work on December 14, Romero
2 This date appears in the transcript as December 18. The transcript is hereby
corrected.
57T684-61--vol. 128-90
1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asked a group including him if "everything was all right." When told that it
was, Romero said that if the Union did not bother him, he would not bother the
Union. Sandoval is still employed by the Respondent.
Candido Jiron worked about 3 months for the Respondent. He attended the union
meeting on December 6, signed a union card, was laid off December 15, and has not
since been recalled.
Benny Martinez, hired in May or June 1958, testified that at the invitation of
Escarcida he attended the union meeting on December 6 and signed a union desig-
nation card. Martinez was off on December 7, recalled to work on December 9,
and is still in Respondent's employ.
Some of the employees named in the complaint as discriminatorily laid off did
not testify. Escarcida testified that Rudy Serna, Gregorio Fresquez, Manuel Mon-
toya, Adon Padilla, and Eliseo Lucero attended the December 6 meeting and signed
union cards. Eloy Montoya testified that his brother Elias S. Montoya signed a
union card on December 9. The parties stipulated that employees were laid off
and in some cases recalled, on the dates shown below:
Name 1st layoff Recall 2d layoff
Victor Escarcida____________________________
Henry Trujillo------------------------------
Ales Sandoval_____________________________
Cleofas Fresquez___________________________
Benny Martinez____________________________
Rudy Serna --------------------------------
Manuel Montoya__________________________
December 4_______
December 7-------
----- do------------
-----do------------
-----do------------
-----do------------
-----do------------
--------------------
December 9_______
December 14------
----- do------------
December 9_______
December 14______
December 9_______
Gregono Fresquez-------------------------- -----do------------ December 14------ December 15.
Aden Padilla------------------------------- -----do------------ ----- do------------ Do.
Eloy Montoya ------------------------------ -----do------------ -----do------------ Do.
Valentin Montoya__________________________ -----do------------ --------------------
Elias Montoya ------------------------------ December 11 3_____ --------------------
Ehseo Lucero_______________________________ December 15______ --------------------
Candido Jiron______________________________ -----do------------ --------------------
The name of Valentin Montoya was not mentioned by any witness. However, Eloy
Montoya and Alex Sandoval, each testified that all of the 10 men laid off on De-
cember 7 had been in attendance at the union meeting on the previous day.
President Blaugrund testified that during the summer of 1959 additional ware-
house facilities were constructed and when they were put to use in October he
expected to be able to operate the warehouse with fewer employees. Sales for
October and November fell substantially below those of the previous year. In
consequence , Blaugrund testified he instructed Superintendent Romero on Decem-
ber 7 to lay off 10 or 12 warehouse employees. The selection of individuals was left
entirely to the judgment of Romero and Blaugrund merely approved his action.
Not until December 8, according to Blaugrund, did he learn that any of the ware-
house employees were interested in the Union. Blaugrund denied that any con-
siderations of union membership or activity affected the decision to lay off employees.
Superintendent Romero testified that for a period of months Blaugrund had been
urging him to cut down the warehouse force but that he received no final instruction
in the matter until early December. Romero testified that considerations of seniority
were not given weight in selecting men for layoff, but that his "heart was involved
in this." Romero denied that the selections were influenced by any union activity
and asserted that he did not learn until after the December 7 layoffs that the men
were contemplating joining a union. When asked to explain the layoff of Escarcida
on December 4, Romero after considerable evasion, said that Escarcida had abused
one of Respondent's trucks. It was developed through Romero's testimony that any
possible abuse must have occurred more than a year before the layoff. For at
least that period of time Escarcida had been working as a checker. In addition
to being an -evasive witness, Romer on at least one point was deliberately mis-
leading. Upon questioning by Respondent's counsel, Romero testified that a record
which he then held in his hand established that on December 4 only three trucks
were operating. Escarcida had testified that there were seven. Upon cross-exami-
nation, Romero conceded that the record referred to was concerned only with
8 The stipulated date appears in the transcript as December 7. Testimony of Romero
convinces me that the transcript is in error and it is hereby corrected
AMERICAN FURNITURE COMPANY 1415
deliveries made within the city of Albuquerque and that on December 4 more than
three trucks were operating ; some of them for out-of-city deliveries . Romero did
not deny the remarks attributed to him by Escarcida to the effect that Escarcida
was smart enough to understand why he was being laid off or that he said to Es-
carcida, a few days later, that the latter had been laid off because of the Union.
The testimony of Sandoval , that on December 8 Romero said that the men had
embarrassed him and that he had to go on deliveries himself , stand undenied. Al-
though Romero said that the 10 layoffs on December 7 took place at the end of
the workday he did not refer specifically to the testimony of Henry Trujillo that
Trujillo was sent home at 10 that morning . He did not deny suggesting to Trujillo
and Eloy Montoya that the possibility of a wage increase existed if they would
drop the Union . According to Romero , it just happened that on the morning of
December 14 he needed additional help and found Sandoval , Cleofas Fresquez,
Gregorio Fresquez , Serna, Padilla, and Eloy Montoya at the warehouse ready for
work . Sandoval and Montoya had testified that they came to work on that day by
arrangement with Romero , having agreed to accept his condition that they forget
about the Union . There is no mention in Romero 's testimony of the conversation
in the morning of December 7 in which he alluded to the trust he had so long placed
in Eloy Montoya.
If any layoff could be justified because of lack of available work, this would have
occurred in October and November . Not alone was no one laid off in those months
but at least one new employee was hired in the warehouse . Subsequent to the
layoffs in December , the remaining crew worked overtime and employees from
other operations of the Respondent were brought to the warehouse to help out.
Respondent 's business for December exceeded that for October and November
very substantially . Blaugrund testified that daily sales figures are available to him
and that he always saw the weekly sales reports . If he looked at the sales record
for the first 5 days of December , he would have seen that they totaled $ 116,000;
had he been interested to compare this figure with that for the same period in the
preceding December , he would have noted an increase of $19 ,000. The early De-
cember sales figures do not suggest a necessity for cutting the size of the warehouse
crew.
Although Romero was under no sort of contract obligation to take seniority
into consideration in selecting men for layoff , I think it generally to be true that when
all else is equal , senior employees are less likely to be let go than those recently
hired , but it was not so here . Escarcida had been in Respondent 's employ for more
than 3 years ; Trujillo for about 11/2 years; Cleofas Fresquez for about 21 years;
Eloy Montoya for more than 4 years; Alex Sandoval for about 21 years; and Denny
Martinez for about 21 years . All were laid off. Filadelfio Trujillo , who had been
hired on November 9, was retained. Elias Montoya , Eloy's brother , who had been
hired by Romero upon Eloy's recd mendation and who was known by Romero
to be on strike against another empji and thus in Romero 's view one who prob-
ably would return to the struck eiripoyer when opportunity came to do so, was
not laid off until December 11 while his brother, with 4 years of service , was let
go on December 7.
I have no doubt and I find that Escarcida was laid off on December 4 because he
was believed , correctly , to be the one individual primarily responsible for arranging
a meeting of the warehouse employees with a union organizer. When, despite the
warning implicit in this layoff, 14 of the warehouse employees attended the meeting
on December 6, more drastic action as indicated . It was no accident that of the
10 laid off on December 7, all had attended that meeting . I credit the testimony
of Henry Trujillo and Eloy Montoya that in the evening of December 7 after the
layoff, Romero told them they could return to work the following Monday if they
would agree to forego interest in the Union . It is no happenstance that the six men
who were returned to work on December 14 were given that opportunity. They
had assured Romero that they were following his advice . Just what went through
Romero's mind as he juggled the jobs of these employees is uncertain . Three of
those laid off on December 7 came back to work on December 9 and remained
there. On December 11, Elias Montoya, who had not previously been affected,
was laid off . On December 15, three of those who had been laid off on December
7 and returned to work on December 14 were laid off again and two others who
had not been previously the subject of layoff were let go on the same date . I think
the most likely explanation for these layoffs, recalls, and further layoffs, is that
Romero found that he just could not handle the heavy workload in December with-
out recalling some of the laid-off workers and that he wavered between keeping
men that he needed and a desire not to let union supporters stay on the payroll. All
of the layoffs beginning with that of Escarcida through those on December 15
1416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stemmed, I find, from a determination on the part of the Respondent to combat
the Union's organizing attempt by ridding itself of all those who had demonstrated
some interest in that movement, but the Respondent had a business to operate and
some of those laid off had to be recalled.
Romero's unreliability as a witness was demonstrated by his evasiveness and
readiness to dissimulate on the stand. I do not credit his testimony where it is in-
consistent with that of the witnesses for the General Counsel. The pretense by
Blaugrund that he was innocent of any knowledge of union activity among the ware-
house employees until December 8 is found to be a pretense. Romero did not, I am
convinced, make the layoffs for reasons known only to him. Blaugrund was made
aware of the situation as Romero believed it to exist and surely directed Romero
to bring about the termination of union supporters.
Of course the witnesses for the General Counsel have an interest in supporting
the allegations of the complaint but some of the strongest evidence against the
Respondent is to be found in the testimony of Henry Trujillo, Alex Sandoval, and
Cleofas Fresquez, each of whom was returned to and now remains at work. I do
not think that they would chance disrupting the harmony of their employment rela-
tion by swearing falsely. Their testimony is fully credited as is that of Escarcida,
Montoya, Jiron, and Martinez.
I find that the layoff or discharge of Escarcida on December 4 and the subsequent
layoffs of Henry Trujillo, Alex Sandoval, Cleofas Fresquez, Benny Martinez, Rudy
Serna, Manuel Montoya, Gregorio Fresquez, Adon Padilla, Eloy Montoya, Valentin
Montoya, Elias Montoya, Eliseo Lucero, and Candido Jiron, on the various dates
shown above were discriminatorily motivated and by the layoffs that the Respondent
discriminated in regard to hire and tenure of employment to discourage membership
in and activity on behalf of the Union. I find that by the layoffs and each of
them, the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a) (3) of the Act.
By the layoffs, by inquiring of Trujillo as to the attendance at the meeting on
December 6, by asking Trujillo who had "signed up" at that meeting, by telling
Trujillo and others that the Respondent would close its doors rather than deal
with the Union, by suggesting the possibility of a wage increase if employees would
forget the Union, by telling laid-off employees they could return to work if they
would abandon their attempt to organize, and by saying that the men would not
be disturbed in their work if the Union did not bother the Respondent, the Respond-
ent has interfered with, restrained, and coerced employees in the exercise of rights
guaranteed in Section 7 of the Act and has thereby engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(1) 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 its operations described in p_ on I , above, have a close , intimate,
and substantial relation to trade, traffic, an& mmerce 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,
it will be recommended that it cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies ofthe Act.
Having found that the Respondent has discriminated in regard to the tenure of
employment of 14 employees it will be recommended that to the extent it has not
already done so, it offer to each of them immediate and full reinstatement, each
to his former or substantially equivalent position without prejudice to seniority and
other rights and privileges previously enjoyed. Each of those laid off in December
1959 shall be made whole for any loss of earnings sustained thereby by a payment
to him or a sum of money equal to the amount he would have earned from the
date or dates of his layoff to the date of offer of reinstatement less his net earnings
during that or those periods. Backpay shall be computed in accordance with the
Board's Woolworth formula.4 Loss of pay shall be determined by deducting from
a sum equal to that which he would have earned for each quarter or portion thereof,
his net earnings in other employment during that period . Earnings in one partic-
ular quarter shall have no effect upon the backpay liability for any other quarter.
Reinstatement as used herein has not been accomplished by the rehire on December
4F. W. Woolworth Company, 90 NLRB 289.
SHEAR'S PHARMACY , INC. 1417
14 of Gregorio Fresquez, Adon Padilla, and Eloy Montoya, each of whom was again
laid off the following day.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
2. By discharging or laying off Victor Escarcida on December 4; Henry Trujillo,
Alex Sandoval, Cleofas Fresquez, Benny Martinez, Rudy Serna, Manuel Montoya,
and Valentin Montoya on December 7; Gregorio Fresquez, Adon Padilla, and Eloy
Montoya on December 7 and 15; Elias Montoya on December 11; and Eliseo Lucero
and Candido Jiron on December 15, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)(3) of the Act.
3. By the discharges or layoffs, by interrogating employees concerning attendance
and happenings at a union meeting, by conditioning reemployment upon abandon-
ment of the Union, by suggesting the possibility of a wage increase if the men would
leave the Union, by saying that the business would be closed if the men insisted
upon a union, and by saying that employees would not be disturbed if the Union did
not bother the Respondent, the Respondent has interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed in Section 7 of the Act
and has thereby engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Shear's Pharmacy, Inc. and Frances Budnick and Retail Drug
Employees ' Union Local 1199, Retail , Wholesale and Depart-
ment Store Union , AFL-CIO, Party to the Contract
Retail Drug Employees' Union , Local 1199, Retail , Wholesale
and Department Store Union , AFL-CIO and Frances Budnick
and Shear's Pharmacy, Inc., Party to the Contract . Cases Nos.
0-CA-6363 and 0-CB-f442. August 31, 1960
DECISION AND ORDER
On November 6, 1959, Trial Examiner Arthur E. Reyman issued
his Intermediate Report in the above-entitled proceeding finding that
Respondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, Respondent Local 1199
filed exceptions to the Intermediate Report and a brief in support
thereof and the General Counsel filed a memorandum in support of
the Intermediate Report.
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 Inter-
mediate Report, the exceptions, the briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
128 NLRB No. 124.