American Photocopy Equipment Co.

National Labor Relations Board - Board Decisions

Oct 30, 1970

186 N.L.R.B. 172 (N.L.R.B. 1970)

172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American Photocopy Equipment Company and Joseph
Hill and Robert E. Smith and Maeretha Smith and
Tommy L. Wheeler. Cases 13-CA-9161,
13-CA-9162,13-CA-9188, and 13-CA-9395
October 30, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
On June 10, 1970, Trial Examiner Benjamin A.
Theeman issued his Decision in the above-entitled
proceeding finding that the Respondent had engaged
in and was engaging in certain unfair labor practices
in violation of the National Labor Relations Act, as
amended, and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief. The
General Counsel filed cross-exceptions to the Trial
Examiner's Decision, a supporting brief, and a brief in
answer to the Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
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, the briefs, and
the entire record in this case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner and
orders that the Respondent, American Photocopy
Equipment Company, Chicago, Illinois, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order, as so modified:
1. Substitute the following for paragraph 2(a) of
the Trial Examiner's Recommended Order:
"(a) Offer to Juan Del Pozo and Lydia Del Pozo
immediate and full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially
equivalent positions without prejudice to their seniori-
ty or other rights and privileges, and make them whole
in the manner set forth in the section entitled `The
Remedy.' "
2. The last indented paragraph of the Appendix is
modified to read as follows:
WE WILL offer Juan Del Pozo and Lydia Del
Pozo immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to
substantially equivalent positions without preju-
dice to their seniority and other rights and
privileges, and make them whole for any loss of
pay suffered as a result of our discrimination
against them.
I Respondent has excepted to some of the credibility resolutions made
by the Trial Examiner . It is the Board 's established policy not to overrule a
Trial Examiner's resolutions as to credibility unless the clear
preponderance of all the relevant evidence convinces us they are incorrect.
Such a conclusion is not warranted here. Standard Dry Watt Products, Inc.,
9.1 NLRB 544, enfd. 188 F.2d 362 (C.A. 3).
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BENJAMIN A. THEEMAN, Trial Examiner: The complaint
as amended 1 alleges that American Photocopy Equipment
Company, (Respondent or Apeco), had engaged and is
engaging in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and (3) and Section
2(6) and (7) of the National Labor Relations Act, as
amended, 29 U.S.C. 151 et. seq. (the Act) among other
things by failing and refusing since May 27, 1969, to
reinstate Juan Del Pozo and Lydia Del Pozo his wife, two
of Respondent's employees, to their former or substantially
equivalent positions of employment because they had
ceased work concertedly and had gone out on strike for the
period May 5, 1969, through May 26, 1969, and after they
had made unconditional offers to return to work.2
Respondent in its answer admits certain facts3 but denies
the commission of the unfair labor practices, and further
denies that the Del Pozos made unconditional offers to
return.
Pursuant to notice, a hearing on the consolidated cases
was held before me on March 2, 3, 4, 5 and 6, 1970 in
Chicago, Illinois. All parties appeared and were represented
by counsel. They were given full opportunity to participate,
adduce evidence , examine and cross-examine witnesses and
1 The original complaint issued on November 28, 1969, upon charges
filed in Case No. 13-CA-9161 by Joseph Hill; Case No. 13-CA-9162 by
Robert E . Smith ; Case No. 13-CA-9188 by Maeretha Smith ; Case No.
13-CA-9395 by Tommy L. Wheeler . The earliest charge was filed June 5,
1969. An order consolidating the cases issued on November 28, 1969. The
complaint was again amended on February 13, 1970.
2 The final amended complaint listed 16 employees in this category.
Prior to the opening of the hearing a settlement was reached as to 14
employees . At the hearing, the complaint was again amended to leave only
the issues involving the reinstatement of the Del Pozos.
3 Respondent , among other things, admits that an economic strike
occurred on May 5 , 1969 at Apeco; and that the Del Pozos have not been
reemployed.
186 NLRB No. 33
AMERICAN PHOTOCOPY EQUIPMENT 173
argue orally. The General Counsel and Respondents
submitted briefs 4 that have been read and considered.
Upon the entire record in the case and from my
observation of the witnesses5 I make the following:
FINDINGS OF FACT
I. BUSINESS OF RESPONDENT
Respondent, a Delaware corporation, maintains its
principal office in Evanston, Illinois. There it is, and has
been at all times material herein, engaged in the
manufacture and sale of copying machines, other business
machines, and related products.
During the course of the past fiscal or calendar year, a
representative period, Respondent manufactured, sold, and
shipped finished products valued in excess of $1,000,000
from its plant in Evanston, directly to customers located in
States of the United States other than the State of Illinois.
It is found that Respondent is and has been an employer
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION
At Apeco, some of the supervisors of the Cuban employees
spoke Spanish well enough to converse with the Spanish-
speaking employees.
In September 1968 the Union started an organizational
campaign at Respondent's Evanston plant. On May 5,
1968, after a union vote on the subject, the Union struck
Apeco and picketed the plant. Some of the pickets were
employees. Others were nonemployees. All wore the usual
strike signs. The Cuban employees were split, some stayed
at work, some picketed. The strike lasted through May 26.
By that time about 120 employees were still out. Of these
some 21 or 22 employees had been permanently replaced.
On May 27, as agreed with the Union, Apeco took back all
but the replaced strikers. Walsh, personnel manager for
Respondent, on direct testimony stated that Apeco did not
call the 22 back because they were "those employees that
were reported to us to have carried on either violence on the
picket line, or what we considered very abusive and vile
language." Juan and Lydia Del Pozo were among those not
called back.
C. The Conduct of the Del Pozos on the Picket
Line
Industrial Workers Union, Local #8, affiliated with the
Laborers International Union (the Union) is and has been a
labor organization within the meaning of Section 2 (5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The issue as indicated above is whether the failure to
reinstate Juan Del Pozo and his wife Lydia Del Pozo, both
economic strikers, constitute violations of the Act. To
resolve that issue requires a determination of two
questions: (a) Did the Del Pozos make an unconditional
offer to return; (b) Did Apeco fail to reinstate the Del
Pozos because of Juan's misconduct on the picket line .6
B. The Strike at Apeco
Many of the Apeco employees involved in this proceed-
ing, including the Del Pozos, are recently from Cuba. They
are Spanish speaking. The majority speak English very
poorly and their understanding of spoken English varies.
Testimony was received by the aid of an interpreter. Juan
Del Pozo speaks some English, his wife not at all. At the
request of counsel for Respondent, Juan started testifying
in English, but difficulties promptly arose. Respondent's
counsel withdrew his request and the interpreter was used.
4 The General Counsel moved, at the same time, to correct the
transcript . No objections having been received, the motion is granted.
s -The testimony of all witnesses has been considered. In evaluating the
testimony of each witness, demeanor was relied upon. In addition,
inconsistencies and conflicting evidence were considered. The absence of a
statement of resolution of a conflict in specific testimony or, of an analysis
of such testimony , does not mean that such did not occur. See Bishop &
Malco, Inc., d/b/a Walker's, 159 NLRB 1159, 1161. Further, to the extent
that a witness is credited only in part, it is done upon the evidentiary rule
that it is not uncommon "to believe some and not all of a witness'
testimony." N.LR.B. v. Universal Camera Corporation, 179 F. 2d 749, 754
(C.A. 2).
6 Respondent at the hearing asserted as an additional defense that Juan
Juan Del Pozo started working at Apeco on January 23,
1968. His wife started in July 1968. At the time of the strike
Juan was a group leader working in the warehouse as an
order filler; 7 Lydia worked as a packer of paper rolls. The
Del Pozos were union members and had signed union
cards. Both went on strike on May 5. Juan was on the
picket line every day of the strike. Lydia picketed the first
week. The rest of the time, she remained at home.
To understand the picket line conduct, a brief description
of the Apeco factory is necessary. The main entrance to the
Apeco for general employees was on the west side of the
building. Opposite this entrance on the other side of the
street was an open parking lot used by the employees to
park their cars. The practice of the employees was to walk
the distance between the lot and the entrance on arriving at
or leaving from work. The parking lot was unfenced. There
was another employee entrance on the east side of the
Apeco,' building. This led to a parking lot that was inside
the fence enclosing the company grounds.
Starting with the morning of May 5, the Union formed a
picket line at various points around the Apeco building
with a larger group at the west entrances The first 3 days of
the strike the employees walked through the picket line. As
they did so heated exchanges in Spanish and English
occurred. Beginning with the fourth day Apeco arranged
that the working employees arrive in automobiles, keep the
windows of their cars closed to avoid contact with the
Del Pozo was responsible as a leader for violence and misconduct of other
strikers on the picket line. Respondent did not pursue this defense with any
vigor; nor was the defense mentioned in its brief. The record shows that
Juan Del Pozo was used by the Union as a translator, or transmitter of
instructions to other Spanish-speaking strikers because of his better
command of English. Respondent failed to show that he was a director or
leader of the pickets; that any violence or misconduct was committed at
Del Pozo's command or request; or that he ratified any violence. It is
concluded that this defense has no merit.
T Del Pozo was not a supervisor. There is no issue on this question.
8 Early that morning some violence occurred at the west entrance that is
not pertinent to this hearing.
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pickets, enter the east entrance, park in the east parking lot,
and then enter the building. The testimony regarding verbal
exchanges after the third day between employees in the
closed cars and the pickets is inconclusive and no findings
thereon are made.
Respondent contends that Juan Del Pozo during the first
3 days of the strike while on the picket line used vile and
abusive language to the working employees as they entered
the plant. The words spoken in Spanish were "hijo de puta"
(son of a whore), "maricon" (homosexual). Witnesses
testified to the fact that they heard Del Pozo use these
words. Del Pozo testified that he used other words but at no
time did he use these. In this instance Del Pozo is not
credited. It is found that he did use the words while on the
picket line. It is further found that other pickets used these
words also. As stated above numerous verbal exchanges
occurred the first 3 days between the working employees
and the pickets. The language used on both sides was ripe
and familiar and spoken with an intent to demean the
other.9 It is found that this type of language was used by
both sides; that the working employees also used the words
"hijo de puta" and "maricon." As to the verbal exchanges,
it is found that some were started by the pickets and others
were started by the working employees. Considerable
testimony went into the record concerning the insulting and
dishonorable nature these words would have, or did have
when directed to a Cuban and the combustible effect their
use would have among Cubans. However, no special
significance or weight is given to this testimony in view of
(a) the general usage of these words by the strikers and
working employees during the strike, many of whom were
working with each other at Apeco at the time of the
hearing; and (b) the finding hereafter made that Apeco did
not consider conduct on the picket line as a factor in the
replacement or reinstatement of the strikers.
There is no dispute over the conduct of Lydia Del Pozo
on the picket line. The first week of the strike she picketed.
The next 3 weeks she remained at home. Apeco admits that
she was guilty of no improper conduct. Apeco contends
that its refusal to reinstate was based on the fact that her
husband, "Juan Del Pozo was such an outrageously violent
and insulting individual" it would just not [have been]
tenable, possible to take her back and not him."
D. Apeco Early in the Strike knew, or should have
known that Del Pozo used Insulting and Degrading
Language on the Picket Line
Starting with May 5, Apeco held daily meetings with the
working employees at which the employees reported picket
line occurrences and at which Apeco advised the employees
how to behave relative to the pickets. The working
employees on other occasions reported to their supervisors
any unusual happening that occurred on their way to and
from work including the language used by the strikers and
the names of those who used it.10 Apeco by the use of forms
obtained in writing the names of strikers who used what
was called in the form "threatening" language to the
working employees. Walsh testified that the names of seven
9 Some other expressions were: Communist, pendejo (idiot), kiss my
black ass, bitches, whores, lambs, mercenaries, slaves, and others.
10 The Cuban employees reported orally to the Spanish-speaking
strikers occurred most frequently as such offenders. One of
them was Juan Del Pozo. Accordingly, it is found that from
the early days of the strike, Apeco knew or should have
known that Juan Del Pozo was a striker who, while on the
picket line, used insulting and degrading language to the
working employees as they went through the picket line.
E. The Discontinuance of the Strike,- the Reinstate-
ment Agreement between Apeco and the Union on
May 27, 1969
About 2 or 3 days before the end of the strike
Loewenberg, General Counsel for the Union, called and
spoke to Curley, General Counsel of Apeco.11 Loewenberg
was seeking to end the strike and to get the employees back
to work as quickly as possible. Curley said there would be
some problem with some of the employees because
"production had been interfered with and [Apeco]
wouldn't be able to put them back all at one time." Further,
Curley stated that an undetermined number of the strikers
had been permanently replaced; that the precise number
would be checked out with his production people. This was
one of several conversations on this subject that occurred
between Loewenberg and Curley. Misconduct on the picket
line was neither discussed nor touched upon.
On May 27 representatives of Apeco and the Union met
at the Board's Chicago offices. Present for Apeco were
William P. Treacy, their attorney, General Counsel Curley
and another vice president, Clayton Rothbart. Present for
the Union were Joseph Cicero, their attorney, and Business
Agent John Serpico. The purpose of the meeting was the
settlement of the strike. The parties felt that there were
issues that would best be resolved without the presence of a
Board representative. After he left the meeting, Cicero told
Treacy that "the obvious and first thing was the orderly
return to work of the people on the picket line and also
those who were at home and not picketing.. . . When can
we tell them they were going back?" Treacy said this
presented a problem to Apeco because of two issues: (a)
some people were permanently replaced; and (b) prod-
uction line interruption would cause a 2 or 3 week delay in
the return of the strikers who had not been replaced. Apeco
as in the conversations with Loewenberg was unable to
name the employees permanently replaced or the exact
time that production would be resumed. Apeco said this
data needed to be checked.
The discussion continued. During it, the Union urged
Apeco to take back all the strikers. Apeco did not agree.
Negotiations continued until an understanding was
reached. Then it was decided to put the agreement in
writing. Treacy started to do so. During the writing, Cicero
demanded that the workers permanently replaced should
be given preferential hiring treatment. Treacy answered,
"only to the extent of the law." Then, Cicero suggested the
language contained in the last two sentences of paragraph 4
of the memorandum quoted below. The final agreement
initialled by both parties provided for the mutual
supervisors.
11 Curley was also vice president-secretary of Apeco, and was present at
the last few days of the hearing.
AMERICAN PHOTOCOPY EQUIPMENT 175
withdrawal of pending unfair labor practice charges; for an
NLRB election on June 6, 1969; 12 and for a nonpicketing
agreement by the Union. As to the return of the employees
the agreement stated:
Apeco shall call back picketing employees as needed by
Apeco, it being understood that all except those
permanently replaced shall be called back and in no less
than the next three weeks. All those permanently
replaced, if they apply for employment at Apeco, shall
not be discriminated against . On the contrary they will
be accorded all rights provided by the law.
Though not mentioned in the agreement, the Union
advised Apeco that it would inform the employees
"permanently replaced of their rights and what they could
do about" them.
Several times during the meeting Cicero asked Curley for
the names of the employees Apeco planned not to take
back. Curley answered- that no list had yet been prepared;
that the Company did not know who had been replaced;
that certain key people had been replaced whose work had
to be done while the strike was on; and when the list was
prepared he would mail a copy to Cicero.
During the May 27 discussion improper conduct on the
picket line was mentioned once. The reference was to "the
question of what was going to happen on criminal charges"
brought against Serpico.13 As in the discussions with
Loewenberg, misconduct on the picket line by employees of
Apeco was neither discussed nor touched upon.
F. The Del Pozos are Permanently Replaced
By letter dated May 29, 1969 Apeco sent to the Union the
list of the "names of [22] people who were permanently
replaced" after the strike. The names of Juan Del Pozo and
his wife Lydia were included. In a statement delivered to a
Board representative in the latter part of June, 1969, the
replacement date listed for Juan was May 5, 1969. No
replacement date for Lydia is shown, but the name of her
replacement was given. The replacements for the Del Pozos
were working at Apeco at the time of the hearing.
On June 3, 1969, Apeco sent a letter to each of the
replaced strikers including Del Pozo and his wife Lydia 14
(1) advising them that their job at Apeco had been filled
with a permanent replacement; (2) enclosing a conversion
form should they be interested in converting their group
hospital and surgical program; and (3) advising that they
would get a check later representing their contribution if
they were a member of Apeco's profit sharing program.15
12 The election was held . The Union lost.
13 Not in issue in this proceeding. Serpico was a nonemployee of Apeco.
14 The General Counsel contends that this letter constituted a discharge
of the Del Pozos and was a separate 8(a)(3) violation of the Act. This is
error . Under N.L.R.B. v. Mackay Radio and Tel. Co., 304 U.S. 333, 346,
Respondent lawfully could replace the Del Pozos. There is no showing that
it did not do so. As a matter of right as replaced employees, the Del Pozos
were entitled to convert their health insurance programs, and were entitled
to the return of their contributions paid into the Apeco profit sharing
program. The letter of June 3 advised the Del Pozos of their permanent
replacement and of the rights which had accrued because of it. Absent
additional facts the June 3 letter does not constitute a violation of the Act.
G. The Del Pozos Unconditionally Apply for
Reemployment
About 1 or 2 weeks after the strike McGovern called the
Del Pozos on the telephone. McGovern spoke to Juan;
stated Apeco was making a survey and that he wanted to
know whether Mrs. Del Pozo wished to return to work.
Mrs. Del Pozo through Mr. Del Pozo answered "yes."
Because Mrs. Del Pozo doubted that the call had come
from McGovern, about a week later Mr. & Mrs. Del Pozo
went to Apeco and spoke to McGovern. McGovern told
them that his orders were "only to ask" if she wanted to
come back. Mrs. Del Pozo gave him the "yes" answer. Del
Pozo then asked McGovern "what about me." McGovern
told Juan, "I don't know about you."
About the middle of June 1969, Juan visited Apeco.'6
There he met Walsh, personnel director for his assistant
McGovern. Walsh and Del Pozo spoke. There is a conflict
in testimony about this conversation which is resolved in
favor of Del Pozo. Walsh and McGovern testified in effect
that Del Pozo told them that he then held a better job,
where he was making "better money"; that he would not
return to Apeco unless he were given a raise and a
promotion. Del Pozo testified that he did not discuss going
back to work at Apeco; that he did tell Walsh he regretted
not working for Apeco because he was happy there; that he
asked Walsh why "Apeco call all the other persons to return
to the job and no call me?" To which Walsh replied "I don't
know"; that in response to a question of Walsh's he stated
he was satisfied with his pay at Apeco and further in
response to Walsh's question told Walsh that he went out
on strike to get better wages for the employees and better
working conditions. Walsh explained in detail the annual
review system of the Company with regard to promotion
and increased pay.
Although Del Pozo's testimony with regard to his
behavior on the picket line has not been credited his
testimony as to the above conversation is credited. It is
noted that Del Pozo at the time of the conversation was
working at another job earning approximately 50 cents less
per hour than he had been making at Apeco;17 that
McGovern testified that Del Pozo said he was making
"good money" but only when his attorney questioned the
words "good money" did McGovern change it to "better
money." 18 Thus, it seems unlikely that Del Pozo making
less than his previous salary would demand a raise as a
condition for reemployment. Further, McGovern in
amplifying his testimony with regard to Del Pozo's alleged
demand for "a promotion" stated that Del Pozo "thought
the people . . . were holding him back, the management
was not given him his just due ... that he had more ability
15 The letter varied as to the inclusion of paragraphs (2) and (3)
dependent upon the employee 's status.
16 To pick up some work clothes he had left behind and also his profit
sharing check.
17 It was stipulated that on June 3, 1969, about a week after the strike,
Del Pozo took a job with another company. He worked there for 12 weeks.
His pay was $2.52 per hour and he worked no overtime. At Apeco his pay
was $2 .73 per hour and in addition he worked overtime . It is neither
contended nor concluded that this other position was a "regular and
substantially equivalent position" to that held by Juan at Apeco.
18 The same change occurred on cross-examination.
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
than was being recognized, and that these were deterrents
to him if they remained the same . . . that he was deserving
of a promotion because of the work he was doing, a
promotion to assistant foreman or such." McGovern
continued that it was after this that Walsh explained
Apeco's policies of personnel and wage review.
Del Pozo's statement does not amount to a demand.
Certainly, it shows what Del Pozo would like if he were
reemployed but it may not reasonably be interpreted to
amount to a condition laid down by Del Pozo for
reemployment.
H. Vacancies Existed at Apeco after May 27, 1969
until after the Del Pozos applied for Reinstatement
The parties stipulated as follows:
At all times material herein sufficient vacancies existed
at American Photocopy Equipment Company to enable
reinstatement of Juan Del Pozo and Lydia Del Pozo
prior to the time either of them found any regular or
substantially equivalent employment.
MR. TREACY: . . . I do so stipulate with the two
reservations that there was a lapse of time after the
picketing terminated before anyone could have been
called and, secondly, that recently there has been a
curtailment of employment. But other than that I do
stipulate.. . .
MR MILLER: I accept the reservations.
Accordingly and on the record as a whole, it is found that
at all times on and after May 27, 1969 until the time of the
hearing there existed at Apeco a sufficient number of
vacancies to enable Apeco to reinstate the Del Pozos.
ANALYSIS AND CONCLUSIONS
1. The Del Pozos made an unconditional request
for reemployment
Respondent in one sentence in its brief contends that
"credibility rests with Apeco as to Del Pozo's conditional
offer to return to work, if, indeed, it can be construed as an
offer at all." This is a vague contention, is not amplified and
is of no material assistance in resolving this question.
The General Counsel erroneously contends that the
events of the May 27 meeting constitute "the necessary
unconditional request for reinstatement on behalf of all
striking employees, including the Del Pozos." It has already
been found that both Del Pozos were permanently replaced
during the strike. That the May 27 agreement between the
Union and Apeco was not an unconditional request for
employment for replaced strikers is self-evident. The first
sentence of paragraph 4 specifically excluded replaced
strikers from those strikers who were to be called back as
needed. Further, under paragraph 4 the Union agreed that
replaced strikers were required to "apply for employment at
Apeco." This appears to be clearly a condition to
reemployment. Thus it is concluded that as to the Del
Pozos and the other replaced strikers the agreement was not
an unconditional application for reemployment. See
Mississippi Steel Corporation, 169 NLRB No. 96, page 31 of
19 Cf. Indiana Ready Mix Corporation, 141 NLRB 651.
20 See N.L.R.B. v. Erie Resistor Corp., 373 U.S. 221, 223; N.LR.B. v.
TXD (ULP strikers); EFCO Manufacturing Inc., 108 NLRB
245, 248.
The question now for resolution is whether the Del Pozos
applied for employment, as required by paragraph 4. The
agreement lays down no form that the application must
take. There is no law, nor is the Examiner aware of any case
that specified the form that the application must take. The
one requirement is that the application must be
unconditional. 19 In the loose relationship that exists
between employer and employee considerable latitude may
be expected in the determination of what constitutes an
application. In N.L.R.B. v. Fleetwood Trailer Co., 389 U.S.
375, the Supreme Court said at page 380 "the right to
reinstatement does not depend upon technicalities relating
to application." Cf. Albritton Engineering Corporation, 138
NLRB 940, 956.
Lydia Del Pozo applied unconditionally for employment
in response to the questions put to her by McGovern in
early June 1969. The Company was actively soliciting
information of the strikers as to their availability for work.
She answered she was available. There is no doubt that
under these circumstances she was applying for work and
Apeco was aware of it. No conditions were attached to her
response.
Similarly, Juan applied for work when McGovern in his
presence asked Lydia if she wanted to come back and Juan
said, "What happens with me?" Only one reasonable
conclusion can be drawn from Juan's question, he was
asking about employment for himself. Apeco was fully
aware of that fact since the question was put in connection
with the survey Apeco was making addressed to Lydia and
her availability for work. Juan attached no conditions. That
Juan was seeking employment is supported by his
questioning of Walsh the following week, when he asked
the personnel manager why others were called back to work
and not he.
Accordingly, from the foregoing and the record as a
whole it is found that the Del Pozos during the first 2 weeks
of June 1969 made unconditional applications for reem-
ployment.
2. The Del Pozos were entitled to full reemploy-
ment unless substantial business reasons to the
contrary existed
It is clear from the foregoing that on May 27, the Del
Pozos had the status of economic strikers who had
permanently been replaced. Further, it has been found that
the Del Pozos individually made unconditional requests for
reinstatement in the first 2 weeks of June 1969, at which
time jobs at Apeco were available to which the Del Pozos
could have been assigned. Under these conditions and
under established Board and Court principles, the Del
Pozos were entitled to full reinstatement, unless they had in
the interim acquired regular and substantially equivalent
employment elsewhere, or unless the employer demon-
strates legitimate and substantial business reasons for
refusing to offer reinstatement.20 There is no showing that
the Del Pozos, up to the time of the hearing, had acquired
Great Dane Trailers Co., 388 U.S. 26, 34; N.LR.B. v. Fleetwood Trailer Co.,
389 U.S. 375, 378; The Laidlaw Corporation, 171 NLRB No. 175, affd.
AMERICAN PHOTOCOPY EQUIPMENT
regular and substantial equivalent employment elsewhere.
Apeco however , contends that there exists "legitimate and
substantial business reasons for the failure to reemploy the
Del Pozos." We shall now treat with that contention.
3. Apeco did not consider nor rely upon picket
line misconduct in the replacement of Juan Del
Pozo, or in the failure to reinstate him
As stated above, Walsh testified that Del Pozo was not
called back by Apeco because he was reported to have used
"very abusive and vile language" on the picket line.21 The
record clearly shows that Del Pozo's picket line conduct
was not considered either with regard to his replacement or
in connection with the failure to reinstate him. It is
concluded that the reason advanced by Apeco is pretextual
and an afterthought.
Apeco's list of replaced strikers given to the Board in
June 1969 shows May 5, 1969, for the date of replacement
of Del Pozo. This was the first day of the strike. It has
already been found that Apeco knew or should have known
of Del Pozo's picket line conduct from that first day. Walsh
asserted that the decision to replace strikers was made while
the strike was in progress and on the basis of misconduct.
Yet, in a sworn statement given to a Board representative
on June 25, 1969, Walsh stated that the replacement of the
striking employees was "done on a random selection on the
basis of what jobs had to be done and what new hires were
available." When shown this statement at the hearing
Walsh testified the statement was true when made and still
true as of the time of the hearing. On cross-examination,
Walsh affirmed that nothing in his statement referred to
misconduct on the picket line. Then when asked which was
the truth, the strikers were "replaced based upon your
production needs, or replaced upon misconduct?" Walsh
responded, "Both are true." The answer to the last question
is not credited. Accordingly, from the foregoing and on the
record as a whole, it is found that misconduct on the picket
line was not a factor in the replacement of Del Pozo as an
Apeco employee.
A similar conclusion is drawn with regard to the
reinstatement of Del Pozo. During the period from late
May to late June, 1969, there were many instances where
Apeco and the Union, and Apeco and striking employees
held conversations and had dealings concerning reinstate-
ment. The evidence shows that at no time during this period
was misconduct on the picket line mentioned by Apeco.22
There is no question that a matter considered so vital to the
issue discussed would under normal conditions be men-
tioned. Apeco offers no explanation for its failure to bring
up the matter of the misconduct. In view of Apeco's failure
to refer to this important factor when it was pertinent and
material to do so, it is reasonable to conclude that Apeco
did not consider misconduct to be significant in relation to,
nor rely upon misconduct as a basis for the refusal of
(C A 7) 414 F 2d 99 , c d. Feb 24, 1970, 73 LRRM 2537, American
Machinery Corporation, 174 NLRB No. 25 affd (C A 5) April 15, 1970,
No. 27283
21 Walsh's testimony in support of this contention is not credited
22 There follows a partial but significant list of these instances (a) the
conversations between Loewenberg and Curley dealing with ending the
strike and requesting the return of the strikers , (b) the negotiations of May
27 and the written agreement executed by the Union and Apeco , (c) the
177
reinstatement . Kohler Co., 128 NLRB 1062, 1239
(Gunderson) modified in other respects 1962 (C.A.D.C.) 300
F. 2d 699; Terry Coach Industries, Inc., 166 NLRB 563, In.
10; Marydale Products Company, Inc., 1232, 1235, affd. 1963
(C.A. 5) 311 F.2d 890. The proffer of false and unconvinc-
ing reasons by Apeco for failure to reinstate Del Pozo, and
the failure to offer legitimate reasons leads to the inference
that Apeco refused to offer him reinstatement because of
his union activities.23 Having found that Apeco did not
consider Juan's conduct sufficient basis for refusal to
reinstate him when he applied in June for reemployment,
there is no warrant for permitting Apeco (a) to refuse to
reinstate him now on those grounds or (b) to assert now
that it did refuse to reinstate him on those grounds.
Apeco stated that its reason for not reinstating Lydia Del
Pozo was that Juan "was such an outrageously violent and
insulting individual . . . it would just not [have been]
tenable, possible to take her back and not him." It has been
shown that at the time of possible reinstatement, Apeco did
not consider that Juan to be so bad an individual. The
stated reason for the failure to reemploy Lydia is
groundless and falls. Thus, the record shows that Apeco has
failed to show any legitimate reason why Lydia as an
economic striker should not have been reinstated.
It is clear from the foregoing that Apeco has shown no
legitimate and substantial business justification for not
offering full reinstatement to the Del Pozos. Such refusal to
reinstate is an unfair labor practice without reference to
intent or improper motivation. Its effect is to discourage
employees from exercising their rights to organize and
strike as guaranteed by Section 7 and 13 of the Act as laid
down in the Fleetwood, Laidlaw and American Machinery
cases supra. In accordance with the foregoing and on the
record as a whole it is found that Apeco by their refusal to
reinstate the Del Pozos violated Section 8(a)(3) and (1) of
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth above in section
III, occurring in connection with its operations described in
section I, above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
CONCLUSIONS OF LAW
1. Apeco is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By failing to offer full reinstatement to Lydia Del
Pozo and Juan Del Pozo who were economic strikers when
survey among the replaced employees , (d) the telephone conversation
between McGovern and the Del Pozos, (e) the personal interview between
McGovern and the Del Pozos, and (f) the personal interview of Walsh and
McGovern with Juan Del Pozo
23 Cf language of the Court in Shattuck Denn Mining Co v N L R B,
362 F 2d 466, 470 (C A 9, 1966), Betts Baking Co v NLRB, 380 F 2d
199,205 (C A 10, 1967)
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
openings and vacancies were available after each had made
an unconditional request for reinstatement, Respondent
has discriminated with respect to their hire, tenure, and
terms and conditions of employment, thereby discouraging
membership in the Union, and has engaged in unfair labor
practices within the meaning of Section 8(a)(3) of the Act.
4. By the foregoing conduct, Respondent has also
interfered with, restrained, and coerced its employees in the
exercise of their Section 7 rights and thereby has engaged
and is engaging in unfair labor practices within the meaning
of Section 8(a)(1) of the Act.
5. The said unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
V. THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, it is recommended that Respondent cease
and desist therefrom and take certain affirmative action
which will effectuate the policies of the Act.
Having found that Respondent violated Section 8(a)(3)
and (1) of the Act by refusing to reinstate Lydia Del Pozo
on June 5, 1969 and Juan Del Pozo on June 12, 1969,24 it is
recommended that Apeco offer each of them immediate
and full reinstatement to his or her former or substantially
equivalent position, without prejudice to his or her seniority
or other rights and privileges, and make each of them whole
for any loss of earnings each may have suffered as a result
of the discriminatory failure to reinstate each by payment
to each of a sum of money equal to that which each
normally would have earned as wages from the date of the
refusal of reinstatement to the date of Respondent's offer of
reinstatement, less net earnings of each during such period,
with backpay and interest thereon to be computed in the
manner prescribed by the Board in F. W. Woolworth Co., 90
NLRB 289, and Isis Plumbing & Heating Co., Inc., 138
NLRB 716.
Upon the foregoing findings and conclusions and the
entire record, and pursuant to Section 10(c) of the Act, I
hereby issue the following:
RECOMMENDED ORDER
The Respondent, American Photocopy Equipment
Company, Evanston, Illinois, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in or activities on behalf of
Industrial Workers Union, Local #8, affiliated with the
Laborers International Union, or any other labor organiza-
tion, by failing to reinstate strikers who had made an
unconditional application for reemployment to existing
vacancies, or in any other manner discriminating against
them in regard to their hire, tenure, or any terms or
conditions of employment.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Juan Del Pozo and Lydia Del Pozo
immediate and full reinstatement to his or her former or
substantially equivalent position, without prejudice to
seniority or other rights and privileges, and make each
whole for any loss of earnings each may have suffered as a
result of the unlawful failure to reinstate each in the manner
set forth in the section of this Decision entitled "The
Remedy."
(b) Preserve and upon request make available to the
Board and its agents , for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary in determining the amount due as backpay.
(c) Post at its plant in Evanston, Illinois, copies of the
notice attached hereto and marked "Appendix." 25 Copies
of said notice, on forms to be provided by the Regional
Director for Region 13 (Chicago, Illinois) shall, after being
duly signed by an authorized representative of the
Respondent, be posted by Respondent immediately upon
receipt thereof and be maintained by it for a period of 60
consecutive days thereafter in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the said Regional Director in writing, within 20
days from the date of this Decision and Recommended
Order, what steps the Respondent has taken to comply
herewith.26
24 These dates are arbitrarily set. The record shows that the McGovern/
Del Pow telephone conversation during which Lydia requester'
reemployment occurred during the first week in June ; the personal
conversation between them at the plant during which Juan requested
reemployment occurred a week later.
25 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions, recommendations , and Recommended Order herein
shall, as provided in Section 102.48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions , and order, and
all objections thereto shall be deemed waived for all purposes . In the event
that the Board's Order is enforced by a judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall be changed to read, "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board."
26 In the event these recommendations are adopted by the Board, this
provision shall be modified to read : "Notify the Regional Director for
Region 13, in writing, within 10 days from receipt of this Order, what steps
the Respondent has taken to comply herewith."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in or activities
on behalf of Industrial Workers Union Local #8,
affiliated with the Laborers International Union, or any
other labor organization, by failing to reinstate strikers
who had made an unconditional application for
reemployment to existing vacancies, or in any other
manner discriminating against them with respect to
their hire, tenure, or any term or condition of
employment.
WE WILL NOT in any like or related manner interfere
AMERICAN PHOTOCOPY EQUIPMENT
with , restrain , or coerce our employees in the exercise of
rights guaranteed in Section 7 of the Act.
WE WILL offer to Juan Del Pozo and Lydia Del Pozo
immediate and full reinstatement to his or her former or
substantially equivalent position , without prejudice to
his and her seniority or vacation or other rights and
privileges, and will make each whole for any loss of
earnings suffered as a result of the discrimination
against them.
AMERICAN PHOTOCOPY
EQUIPMENT COMPANY
(Employer)
Dated By
179
(Representative ) I(Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance with
its provisions , may be directed to the Board's Office, 881
U.S. Courthouse and Federal Office Building, 219 S.
Dearborn Street , Chicago , Illinois 60604, Tel.
312-353-7572.
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