A.P.A. Warehouse

National Labor Relations Board - Board Decisions

Mar 20, 1991

302 N.L.R.B. 110 (N.L.R.B. 1991)

110
302 NLRB No. 12
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In sec. II,C, of his decision, in the last sentence of his discussion of Diego
Davila, the judge inadvertently referred to ‘‘Aurich’’ rather than ‘‘Davila.’’
2 In adopting the judge’s conclusion that the Respondent unlawfully failed
to reinstate employee Michael Kiernan, we do not rely on the judge’s rationale
that the Respondent’s reinstatement offer to Kiernan was invalid because it
provided for an unreasonably short period of time in which Kiernan could ac-
cept it. Rather, under the Board’s reasoning in Esterline Electronics Corp., 290
NLRB 834 (1988), we find that the Respondent’s reinstatement offer to
Kiernan was not invalid on its face because the offer was not expressly condi-
tioned on compliance with the report-back date. Esterline, supra at 835. Thus,
we rely on the judge’s alternative rationale that the Respondent’s treatment of
Kiernan when he reported to work on March 28, 1988, demonstrated that the
offer had been dependent on his accepting it by March 25, 1988, and thus
was invalid on that basis. See Esterline, id.
In adopting the judge’s conclusion that the Respondent unlawfully failed to
reinstate employee Thomas Pringle, we do not rely on the judge’s application
of the rationale he used in finding that the Respondent unlawfully failed to
reinstate employee Alfredo Amigon. Rather, we find that the situation involv-
ing Pringle was more similar to that of Kiernan, who also received the Re-
spondent’s reinstatement offer while he was out of town. Accordingly, we
apply the rationale used for Kiernan, set forth above, to Pringle, and we find
that the Respondent failed to reinstate Pringle since March 17, 1988, rather
than March 28, 1988.
The Respondent in its exceptions contends that the judge erred in stating
that the Respondent failed to produce evidence to rebut the General Counsel’s
prima facie case regarding the discharge of Lauro Sosa and the alleged failure
to reinstate Taveras to his former position of employment. Even considering
the Respondent’s evidence, however, we adhere to the judge’s conclusions re-
garding Sosa and Taveras.
3 Champ Corp., 291 NLRB 803, 806 fn. 9 (1988).
As discussed in fn. 2, above, we note that under the Board’s reasoning in
Esterline, above, the Respondent’s reinstatement offers to these four employ-
ees were not invalid on their face.
4 We have amended the judge’s remedy in accordance with the tolling of
backpay for these four employees.
5 Champ Corp., id.; O.K. Machine & Tool Corp., 279 NLRB 474, 475
(1986); Burnup & Sims, 256 NLRB 965, 966 (1981).
A.P.A. Warehouse, Inc.; Sea-Jet Trucking Corpora-
tion; Affiliated Terminals, Incorporated; Sea-
Jet Trucking and A.P.A. Warehouse Incor-
porated and Quilvio Taveras
Sea-Jet Trucking Corporation; APA Warehouses,
Inc.; Affiliated Terminals, Incorporated; Sea-
Jet Industries Incorporated; and Sea-Jet
Trucking & APA Warehouses, Inc. and Inter-
national Union, United Automobile, Aerospace
and Agricultural Implement Workers of Amer-
ica, AFL–CIO and Martin Sosa
A.P.A. Warehouse Inc./Sea-Jet Trucking Corpora-
tion/Affiliated Terminals Incorporated/Sea-Jet
Industries Incorporated/Sea-Jet Trucking and
APA Warehouses Incorporated and Diego
Davila. Cases 29–CA–13505, 29–CA–13505–2,
29–CA–13556, and 29–CA–13935
March 20, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On January 17, 1990, Administrative Law Judge
James F. Morton issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the Charging Party (the Union) filed an answering
brief to the Respondent’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings,findings,1 and con-
clusions2 as modified below.
In concluding that the Respondent unlawfully failed
to reinstate employees Facindo Ruiz, Francisco Baez,
Elba Battista, and Crescencio Vergara, the judge found
that the Respondent failed to make a good-faith offer
of reinstatement to these employees by relying solely
on placing an order with Western Union for mailgrams
offering reinstatement, particularly when it was aware
of at least two instances where mailgram delivery had
failed. The judge stated that the Respondent could
have sent certified letters, or could have notified the
Union that these employees could report to work, or,
with Ruiz, could have asked Ruiz whether he had re-
ceived the mailgram when he returned to the Respond-
ent’s premises to vote in the election several weeks
after the mailgram had been ordered. The judge further
noted that there was nothing on the confirmation cop-
ies of the mailgrams sent to these employees which in-
dicated that the mailgrams had actually been sent.
Contrary to the judge, we find that the Respondent’s
attempt to communicate valid reinstatement offers to
Ruiz, Baez, Battista, and Vergara by a mailgram sent
to their proper addresses constituted a good-faith at-
tempt to tender such an offer,3 and that the confirma-
tion copies of the mailgrams placed in evidence by the
Respondent are a sufficient basis to infer that at least
a good-faith attempt at delivery of the offer was made.
Thus, under established Board precedent, we find that
the Respondent’s good-faith reinstatement offers have
tolled its backpay liability as to Ruiz, Baez, Battista,
and Vergara,4 although the Respondent is still obli-
gated to reinstate these four employees.5
AMENDED REMEDY
Add the following to the end of the second para-
graph of the judge’s remedy:
‘‘Backpay shall be tolled, however, for Ruiz, Baez,
Battista, and Vergara as of the date of the Respond-
ent’s good-faith attempt to communicate reinstatement
offers to these employees.’’
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, A.P.A. Warehouse, Inc.;
Sea-Jet Trucking Corporation; Affiliated Terminals, In-
corporated; Sea-Jet Trucking and A.P.A. Warehouse,
Incorporated; Sea-Jet Industries, Incorporated, Brook-
lyn, New York, its officers, agents, successors, and as-
111A.P.A. WAREHOUSE
signs, shall take the action set forth in the Order as
modified.
1. Insert the following at the end of paragraph 2(a),
before the period.
‘‘(except that for Ruiz, Baez, Battista, and Vergara,
backpay shall be tolled as of the date the Respondent
made a good-faith attempt to tender them offers of re-
instatement).’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT fail to reinstate unfair labor practice
strikers to their former positions of employment on
their unconditional application.
WE WILL NOT assign returning unfair labor practice
striking employees to more onerous work and to fewer
work hours than they were assigned before they com-
menced to strike.
WE WILL NOT discharge any of our employees to
discourage their support for International Union,
United Automobile, Aerospace and Agricultural Imple-
ment Workers of America, AFL–CIO.
WE WILL NOT promulgate or enforce a lateness pol-
icy in order to discourage employees from supporting
the above Union.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL offer
Christopher Grant Rene Pinell
Michael Kiernan Justo Saldivar
Alfredo Amigon
a/k/a Socorro Ponce Miguel Jarrin
Thomas Pringle Lauro Sosa
Facindo Ruiz Jorge Collado
Senon Tapia Luis Pineda
Elba Alvarez Battista Quilvio Taveras
Crescencio Vergara Christino Sosa
Francisco Baez Roberto Rodriguez
Miguel Aurich Aldwin Skeete
Diego Davila
and all other returning striking employees full and im-
mediate reinstatement to the positions of employment
held by them at the start of the strike and WE WILL
make them whole, with interest, for all losses (includ-
ing those resulting from fewer working hours) they in-
curred by our unlawful failure to have so reinstated
them at the end of the strike (except that for Ruiz,
Baez, Battista, and Vergara, backpay shall be tolled as
of the date the Respondent made a good-faith attempt
to tender them offers of reinstatement).
WE WILL offer Lauro Sosa, Martin Sosa Torres, and
Diego Davila full and immediate reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and make
them whole with interest for all losses they suffered as
a result of our having unlawfully discharged them.
WE WILL remove from our files all references to
their discharges and notify those three employees in
writing that this has been done and that their dis-
charges will not in any way be used against them.
WE WILL make whole all employees who suffered
losses by reason of the unlawful lateness policy we
promulgated.
A.P.A. WAREHOUSE, INC.; SEA-JET
TRUCKING CORPORATION; AFFILIATED
TERMINALS, INCORPORATED; SEA-JET
TRUCKING AND A.P.A. WAREHOUSE, IN-
CORPORATED; SEA-JET INDUSTRIES, IN-
CORPORATED
Elias Feuer, Esq., for the General Counsel.
Horowitz & Pollack, P.C., of South Orange, New Jersey, for
Sea-Jet Trucking Corporation, et al.
Eugene G. Eisner, Esq. and Nicholas Fish, Esq. (Eisner,
Levi, Pollack & Ratner), of New York City, for Inter-
national Union, United Automobile, Aerospace and Agri-
cultural Implement Workers of America, AFL–CIO.
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge. The first
three cases listed in the caption above had been consolidated
for hearing with two representation cases, Cases 29–RC–
6841 and 29–RC–6844. The hearing as to those five cases
opened in late October 1988 and continued on various dates
until January 30, 1989, when it was recessed indefinitely,
pending ruling on a motion to sever. On February 15, 1989,
I granted the motion to sever Cases 29–RC–6841 and 29–
RC–6844 from the unfair labor practice cases. On that date,
I had issued a Report on Challenged Ballots and Objections
in those two representation cases (JD–NY–01–89).
On May 15, 1989, the hearing resumed in the three unfair
labor practice cases. On that date, I granted the General
Counsel’s motion to consolidate Case 29–CA–13935 with
them. The hearing continued for 6 more days on various
dates in May and June 1989 and closed on June 20, 1989.
The issues presented by the amended pleadings in these
four unfair labor practice cases are whether A.P.A. Ware-
houses, Inc. and the other Companies named in the caption
above (who are concededly a single business enterprise and
are referred to here as an entity under the name, Respondent)
112 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The complaint originally alleged at par. 18 that only one striking employee
had been unlawfully denied reinstatement. When the hearing resumed on May
15, 1989, the General Counsel moved to add the names of 11 other striking
employees to par. 18. I had reserved ruling on the motion in order to be able
to determine whether Respondent might have been prejudiced by so large an
increase in the named alleged discriminatees at such a late point in the pro-
ceeding. I now grant the motion as there has been no prejudice. Later in the
hearing, the General Counsel withdrew 1 of the 11 from par. 18.
has sought to discourage its employees from supporting the
labor organization named above (the Union) by various ac-
tions alleged to be unfair labor practices under Section
8(a)(1) and (3) of the National Labor Relations Act (the
Act). Specifically, Respondent is alleged to have engaged in
the following conduct aimed at discouraging its employees
from supporting the Union:
(1) Failed to reinstate 11 unfair labor practice strikers on
their unconditional application therefor.
(2) Failed to reinstate 13 other unfair labor practice strik-
ers to their former positions of employment and instead as-
signed them to more onerous, less desirable jobs.
(3) Discharged three employees.
(4) Reduced the wage rates of employees.
(5) Promulgated a notice informing employees that they
will be subject to a more stringent lateness policy and en-
forced that policy.
On the entire record, including my observation of the de-
meanor of the witnesses, and on consideration of the briefs
filed by Respondent and the Union, and of the oral argument
of the General Counsel at the conclusion of the hearing, I
make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
As found previously in the representation cases referred to
above, Respondent is engaged in commerce and it will effec-
tuate the purposes of the Act to assert jurisdiction here. Also
as found previously in those representation cases, Inter-
national Union, United Automobile, Aerospace and Agricul-
tural Implement Workers of America, AFL–CIO (the Union)
is a labor organization as defined in Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The general background of these cases has been set out in
the Report on Challenged Ballots and Objections (JD–NY–
01–89), discussed above.
The specific background, immediately relevant to most of
the issues under consideration now, is contained in footnote
14 of the Supplemental Decision on Objections and Chal-
lenges which issued in Cases 29–RC–5841 and 29–RC–6844.
There, it was recited that Respondent admitted in a settle-
ment agreement approved, in another series of cases, by Ad-
ministrative Law Judge Raymond Green on April 11, 1988,
that a strike which had commenced by its employees on No-
vember 8, 1987, was an unfair labor practice strike.
B. Alleged Failures to Reinstate 11 Strikers
On March 14, 1988 (all dates hereafter are for 1988 unless
stated differently), the Union sent a telegram to Respondent
informing it that the strike was over and that the employees
on strike will report for work on March 17. About 65 strik-
ing employees came to Respondent’s facility on March 17.
Respondent’s controller, Harold Pretter, gave them sheets on
which they wrote their names, addresses, and telephone num-
bers. He told them that they would be notified as to when
they were to report for work.
A number of the strikers were reinstated in the following
week. The General Counsel contends however that 11 strik-
ers were unlawfully denied reinstatement.1 Only 7 of those
11 testified. The respective merits of the claims of the seven
who testified are considered first.
1. Christopher Grant
Grant had begun working for Respondent on October 19,
1987, as a picker-packer on the day shift, earning $4 an
hour. He described the work he did as assembly line work
which was not at all strenuous.
He participated in the strike which began less than a
month after he started work. Then the strike ended in March
1989, he reported to Respondent’s facility and, on March 17,
1989, he put his name and other data on one of the sign in
sheets. Shortly afterwards, he received a mailgram, instruct-
ing him to report to work.
Grant testified as follows to the events that occurred when
he reported. Pretter assigned him to work on the loading
dock. Grant, who is 60 years old, told him that he could not
do that work. It involved the pulling around of manual jacks
for 3 hours. Pretter then wanted him to sign a paper which
stated that he did not want to work. Grant did not sign it.
He left and has not heard from Respondent since then.
Payroll records of Respondent which were subpoenaed by
the General Counsel show that Grant was assigned to depart-
ment 10, pick and pack, just prior to the strike and that,
when the strike ended, Respondent had at least one employee
in that department who had been hired during the strike.
Pretter’s testimony did not controvert Grant’s account. In-
stead, he related that Respondent had difficulty in spreading
the work around to its employees in March 1988 with the
influx of the returning strikers.
Respondent asserts that Grant was not entitled to decide
which job he would perform and that he left Respondent’s
employ voluntarily in March 1988. Those assertions do not
address the issue before me. It is Respondent’s burden to
show that it offered Grant reinstatement to his former job or,
if that job no longer exists, to a substantially equivalent one.
See American Gypsum Co., 285 NLRB 100 (1987). Respond-
ent has not met that burden. Its failure to offer Grant rein-
statement to the pick and pack department in March 1988 is
thus unlawful.
2. Michael Kiernan
Kiernan began working for Respondent on October 7,
1987, in its shipping and receiving department. He took part
in the strike called about a month later by the Union. At its
conclusion, Respondent sent Kiernan a mailgram which read,
‘‘Please report for work any afternoon at 3PM no later than
Friday March 25, 1988.’’
Kiernan testified credibly that he first learned of the
mailgram when he returned home on March 26 after having
been working out of the state.
Kiernan went to Respondent’s facility the next workday,
March 28. He showed the mailgram to the security guard sta-
113A.P.A. WAREHOUSE
2 The General Counsel also had referred to him as Secorro Ponce when par.
18 of the complaint was first amended.
3 The statement by Respondent’s guard to Pringle on March 28 is binding
on Respondent, as its substance was confirmed in Respondent’s brief. See
Harrison Steel Casting Co., 262 NLRB 450, 455 fn. 6 (1982).
tioned at the plant entrance. The guard made a telephone call
to the personnel department. A short while later, a man came
to the gate and informed Kiernan that there were no openings
and that he was not needed. Kiernan has not heard from Re-
spondent since then.
Respondent contends that Kiernan abandoned his job when
he failed to appear for work on March 26. It is clear from
the wording of the mailgram that Respondent’s offer de-
pended on Kiernan’s returning to work by that date. As that
date was unreasonably short, the offer to Kiernan was not a
valid one. See Esterline Electronic Corp., 290 NLRB 834
(1988). See also A & T Mfg. Co., 280 NLRB 916, 918
(1986). I therefore find that Respondent unlawfully failed to
reinstate Kiernan on and since March 17, 1988.
In the event the Board were to find, under its reasoning
in Esterline as to an otherwise facially valid offer, that
Kiernan had to respond to the offer, I would find that Re-
spondent’s treatment of him on March 28 clearly dem-
onstrated that the offer had been dependent on his accepting
it by March 26, clearly an unreasonable requirement under
the circumstances. I thus would find that offer invalid on that
basis.
3. Alfredo Amigon
Amigon has used another name, Socorro Ponce,2 while in
Respondent’s employ. He worked there since October 13,
1985, in the shipping and receiving department until the
strike began in November 1987. He took part in the strike.
Although the Union, as noted above, sent Respondent a tele-
gram on March 14 that the striking employees will report on
March 17, there is no evidence that Amigon did report on
that date. To paraphrase language quoted by Administrative
Law Judge Wieder in Champ Corp., 291 NLRB 803 (1988),
there is no basis for finding that the union’s letter was a
proper blanket application for reinstatement of all strikers
without further need for their individual appearances on
March 17, particularly as the union had notified respondent
on March 14 that the strikers would personally report to the
plant. Thus, it cannot be found that Respondent unlawfully
failed to reinstate Amigon on March 17. I note, in making
this finding, that there is no allegation that Respondent had
violated the Act by failing to communicate with the Union
to respond to the Union’s March 14 telegram and by, instead,
communicating directly with the employees involved in the
strike. In that regard, cf. Gitano Distribution Centers, 294
NLRB 695 (1989).
However, as is also evident from the holding in Champ
Corp., supra, Respondent was obliged to offer Amigon rein-
statement if he applied for it after March 17. In that regard,
Amigon testified uncontrovertedly that, in April 1988, he
went to Respondent’s facility and asked its general manager,
Pedro Maona, for work. Maona replied that there was no
work for him and that he should go to the Union for work.
Amigon was not reinstated and has not heard from Respond-
ent since then.
I find that Respondent has unlawfully failed as of April
1988 to reinstate Amigon to his former position of employ-
ment.
4. Thomas Pringle
Pringle began working for Respondent in October 1987,
sorting clothes. He went out on strike in November 1987. In
December, he went to South Carolina, returned in February
when the strike was still on, left again in March for South
Carolina on a short visit, and returned home on the afternoon
of March 27, 1988. Waiting for him there then was a
mailgram from Respondent instructing him to report for
work at 8 a.m. that same day, i.e.—over 4 hours earlier.
Pringle went to Respondent’s facility that day, showed the
guard the mailgram that he had received and was told by the
guard that he was no longer working there. Respondent has
not communicated since then with Pringle. In its brief, Re-
spondent stated that Pringle voluntarily had given up his job
by having gone to South Carolina.
Essentially based on the same rationale set forth above re-
specting Amigon’s claim, I find that Respondent has unlaw-
fully failed to reinstate Pringle on and since March 28,
1988.3
5. Facindo Ruiz
Ruiz, in Respondent’s employ since 1979, reported to its
plant on March 17 after having been on strike since Novem-
ber 1987. He listed his name, address, and telephone number
on one of the sheets Pretter gave him and was told that Re-
spondent would call him. He voted without challenge at the
representation case election in April. He testified that he was
never called back by Respondent.
Pretter testified that Respondent made arrangements with
Western Union to have mailgrams sent to all employees who
had engaged in the strike. Respondent placed in evidence,
relative to Ruiz, the following document which Pretter identi-
fied as a confirmation copy of a mailgram Respondent had
requested Western Union to send:
SEA-JET TRUCKING APA WAREHOUSES H PRETTER
140 43 STREET SENDERS RISK
BROOKLYN NY 11232
THIS IS A CONFIRMATION COPY OF THE FOLLOWING
MESSAGE:
7187885526 MGMB TDMT BROOKLYN NY 30 03–21 0640P
EST
ZIP
FACUNDO RUIZ
652 47 STREET
BROOKLYN NY 11220
PLEASE REPORT TO WORK ANY AFTERNOON AT 3PM NO
LATER THAN FRIDAY, MARCH 25, 1988.
SEA-JET TRUCKING
A.P.A. WAREHOUSES, INC.
19:10 EST
MGMCORP
No explanation has been offered as to the meaning of the
words, Senders Risk, in Respondent’s address in this docu-
ment and none as to the significance of the numbers thereon.
It may be that Western Union received the order from Re-
spondent on March 21 at 6:40 p.m. EST. It may be, also,
114 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Moreover, I would think that Respondent could, among other things, have
shown that a mailgram to Ruiz was properly posted by Western Union if that
is the procedure it uses. Cf. E. B. Manning & Son, 281 NLRB 1124, 1126
(1986). Otherwise, one could at best presume that it was and, from that pre-
sumption would flow the presumption of delivery. That is one presumption too
many, particularly when there were more obvious, direct ways of tendering a
reinstatement offer to Ruiz.
5 He was incorrectly referred to as Eugenia Vergara in the original com-
plaint. His name was amended at the hearing.
that, at 19:70 EST Western Union did something with that
order. There is no reason given, if 19:10 EST is a reference
to time, as to why it was designated in that manner and not
simply shown as 7:10 p.m. EST, as the earlier time ref-
erence, 6:40 p.m. EST, apparently had been designated. In
any event, there is nothing on the document which indicates
that the mailgram had been sent to Ruiz.
The evidence is too vague for me to find that Respondent
tendered Ruiz a reinstatement offer. Respondent could read-
ily have discharged its obligation to offer Ruiz his former
job simply by notifying the Union that Ruiz could report to
work. It could itself have sent certified letters to the striking
employees and followed these up as to any that were unde-
livered. Instead, it relied on Western Union and was aware
of at least two instances where delivery had failed. Further,
Ruiz voted without challenge at the election held on Re-
spondent’s premises several weeks after Respondent asked
Western Union to send him a mailgram. Respondent could
easily have asked him then as to whether he received the
mailgram but there is nothing to indicate that it did go. In
Esterline, supra, the Board has imposed on an employer and
a striking employee alike the ‘‘requirement of good faith
dealing’’ insofar as tenders of reinstatement offers and re-
sponses thereto are concerned. The evidence before me as to
Ruiz demonstrates that Respondent has fallen far short of
that requirement in having simply placed a telephone call to
Western Union to relieve itself of its obligation.4
I therefore find that Respondent has not established that it
made a valid reinstatement offer to Ruiz and that in fact it
has unlawfully failed to do so.
Further, I credit Ruiz’ testimony that he received no rein-
statement offer. Even had Respondent made a valid reinstate-
ment offer, it is still obligated to reinstate him. Cf. O.K. Ma-
chine & Tool Corp., 278 NLRB 474, 475 (1986).
6. Tomas L. Sosa
Sosa worked for Respondents using the name, Bernardo
Flores. He was hired in 1982 and was working as an elevator
operator for $5.50 an hour when he went out on strike on
November 8, 1987. He reported on March 17 with other
strikers, as recounted above. On the following day, he re-
ceived a phone call instructing him to come back to work
later that same day. When he arrived at Respondent’s facil-
ity, Pretter told him, through an interpreter, that if he wanted
to work, he would have to vote in favor of Local 6, a labor
organization on the ballot with the Union in the then upcom-
ing representation case election. Sosa told Pretter that he did
not have to say then which way he would vote. Pretter told
him to leave and that Respondent would write to him. He,
in fact, has received nothing in writing from Respondent.
In October 1988 Sosa, using his real name, applied for a
job with Respondent and was hired as a new employee in
the UPS department at $5 an hour.
The evidence is clear that Respondent imposed an unlaw-
fully discriminatory provision to its reinstatement offer to
Sosa in March. I therefore find that it has not made a valid
reinstatement offer to him and that it has thus unlawfully
failed to offer him reinstatement to his former position of
employment.
7. Senon Tapia
Tapia began working for Respondent in December 1985,
took part in the strike in November 1987, and reported to
Respondent’s facility on March 17, 1988, with other striking
employees in accordance with the Union’s March 14 tele-
gram, discussed above. He next received a telephone call
from Respondent instructing him to report for work. How-
ever, he informed Respondent then that he was on the way
to the hospital with his child, who was ill. He was told to
wait until he received a telegram. On the next workday, he
went to Respondent’s facility where he was told that Re-
spondent would call him when he was needed. He has heard
nothing further from Respondent.
There is no probative evidence that Respondent tendered
Tapia a valid offer of reinstatement. He was given virtually
no time to accept its first offer and when he sought to find
out if it was still open, he was politely told in effect that it
was not. As Respondent has not met its burden of proving
that it made a valid reinstatement offer, I find that it has law-
fully failed since March 17 to reinstate Tapia to his former
position.
The remaining four employees in this group did not tes-
tify. However, it is apparent that three of them did participate
in the strike and had applied for reinstatement. The signa-
tures of two of these four, Elba Alvarez Battista and
Crescencio Vergara,5 appear on the March 17 sign in sheets,
discussed above. As to the third of these four, Francisco
Baez, Pretter testified as noted above that Respondent had
placed an order with Western Union to send mailgrams to all
striking employees, directing them to return to work. Pretter
testified, also as earlier noted, that Respondent received con-
firmation copies from Western Union as to those mailgrams.
There is in evidence a confirmation copy as to Baez; it is
evident then that Baez also had applied for reinstatement.
As to the fourth individual in this group, he was originally
named in the complaint as Urbano Vergara. At the hearing,
the General Counsel stated that his real name is Victor Alva-
rez and the complaint was amended accordingly. The Gen-
eral Counsel did not refer to him in his oral argument at the
conclusion of the hearing and neither the Union nor Re-
spondent referred to him in their respective briefs.
For essentially the same reasons on which I have found
that Respondent simply, by placing an order with Western
Union, failed to tender to Facundo Ruiz a valid offer of rein-
statement, especially as at least two mailgrams admittedly
were never delivered, I find that Respondent has failed to
meet its burden of showing that it made valid offers to Baez,
Battista, and Crescencio Vergara.
As there is no evidence respecting Victor Alvarez, I shall
dismiss the allegation that he was unlawfully denied rein-
statement.
115A.P.A. WAREHOUSE
6 Aurich had been discharged on July 27, 1987. His discharge was alleged
as violative of the Act in a complaint that had issued in Cases 29–CA–13150
et seq. He was reinstated in April 1989 and a settlement agreement in those
cases was approved on April 11, 1989, by Judge Raymond Green. That agree-
ment contained a broad reservation of rights clause which clearly was intended
to allow for the litigation before me. That is obvious too from the fact that
no one has urged that litigation of Aurich’s discharge or of others similarly
situation is barred by that agreement. In an analogous case, the Board adopted
a finding that an earlier settlement agreement did not bar related litigation. See
Council’s Center for Problems of Living, 289 NLRB 1122 (1988).
7 Davila allegedly had been discriminatorily transferred to the receiving de-
partment and allegedly discriminatorily discharged, prior to the strike. Those
allegations were resolved by the settlement agreement approved by Judge
Green in Cases 29–CA–13150 et seq., discussed above. Also as noted above,
no one urges that agreement as a bar to this proceeding or seeks to set it aside
by reasons of any of the allegations before me. The broad reservation language
contained in the settlement agreement and the other factors cited with respect
to Aurich’s status, noted above, make clear that the only issue before me has
been whether Respondent’s failure to reinstate Davila to his former position
in its repacking department was discriminatorily motivated or due only to eco-
nomic considerations.
8 Pinell allegedly had been discriminatorily transferred in August 1987 from
the UPS department. That allegation was resolved in the settlement agreement
approved by Judge Green, discussed above. Related allegations as to other
strikers alleged to have been unlawfully reinstated to different jobs were simi-
larly settled. Those strikers are Jorge Collado, Luis Pineda, and Quilvio
Taveras.
C. Alleged Unlawful Failure to Reinstate Strikers to
Their Former Jobs
Paragraph 19 of the complaint, as amended, alleges that
Respondent unlawfully assigned 13 strikers to more onerous
and less desirable jobs on their return to work when the
strike ended. Only 5 of those 13 testified. The evidence as
to those five is discussed next.
1. Miguel Aurich
Aurich began working for Respondent as a floorman in
April 1978 and participated in the strike which began in No-
vember 1987.6 When the strike ended in March 1988, he
wrote his name, address, and telephone number on one of the
sign in sheets that Pretter gave him on March 17, 1988. He
returned to work on April 4, 1988, as a floorman but, after
2 days, he was assigned to the packing and repacking depart-
ment, to a more strenuous job and one which gave him fewer
work hours.
Payroll records in evidence disclose that Respondent, after
Aurich’s return, had a number of employees working as
floormen, including two who had started working for Re-
spondent after the start of the strike.
The evidence before me is clear that, when the strike
began, Aurich was in Respondent’s floormen department and
that, when it ended, he was restored temporarily to that de-
partment but almost immediately assigned him elsewhere to
a more onerous job with less worktime. The General Counsel
has thereby made out a prima facie showing that he was not
reinstated to his former job. That showing was buttressed by
Respondent’s own payroll records which disclosed that
floorman replacements continued to work after Aurich’s re-
turn. Respondent offered no probative evidence to rebut that
prima facie case. I thus find that Respondent, since on or
about April 4, 1988, has discriminatorily failed to reinstate
Aurich, an unfair labor practice striker, to his permanent
former job as floorman.
2. Diego Davila
Davila began working for Respondent in May 1982 in the
repacking department. He joined the Union’s picket line in
November 1978.7 As with Aurich, he filled out the data re-
quired by Pretter on the sign in sheets on March 17, 1988,
and returned to work. For his first week, he was assigned to
the receiving department but worked only 4 hours a day.
Thereafter his hours were changed to 8 a.m. to 5 p.m.
Respondent’s controller testified that Davila’s work assign-
ments, after the strike ended, were made solely because of
business considerations.
The General Counsel has made out a prima facie case of
unlawful discrimination in that Davila, as an unfair labor
practice striker, was not reinstated to his former position of
employment. Respondent’s conclusory evidence is insuffi-
cient to rebut that showing. I therefore find that Respond-
ent’s failure to reinstate Aurich to its repacking department
and its instead assigning him to a more arduous job with
fewer work hours were reprisals for his having participated
in the unfair labor practice strike.
3. Rene Pinell
Pinell began working for Respondent in February 1983
and, prior to the start of the strike, he performed essentially
plant clerical work in Respondent’s UPS department.8 He
joined the strike and filled out a sign in sheet on March 17,
1988. On his return, he was assigned to work in the receiv-
ing department, unloading trucks. Respondent’s payroll
records disclosed that Pinell also worked fewer hours then,
compared to the hours he worked prestrike.
Here again, I find that the General Counsel has made out
a prima facie showing of unlawful discrimination. Respond-
ent offered no probative evidence in rebuttal. I therefore find
that Respondent retaliated against Pinell because of his sup-
port for the Union.
4. Justo Saldivar and Miguel Jarrin
Salvidar’s name was inverted, as Saldivar Justo, when it
was first listed in paragraph 19 of the complaint. It was
amended during the hearing.
He began working for Respondent in May 1982 and was
working in its order preparation department when he went
out on strike on November 8, 1987. When the strike ended
in March, he returned to work in that same department but
he has worked fewer hours than he did during the period
antedating the strike. Saldivar’s uncontroverted testimony is
that striker replacements continued to work in his department
after he returned to work and that they worked at least as
many hours as he did.
Pretter testified for Respondent only to confirm that Re-
spondent spread the work hours among the returning strikers
and their replacements, notwithstanding that the strike was an
unfair labor practice strike. His testimony is entitled to no
material weight towards rebutting the clear showing by the
General Counsel that Saldivar had been unlawfully discrimi-
nated against in being given less worktime because he took
part in the strike. See Radio Electric Service Co., 278 NLRB
531 (1986), when the Board gave no weight to ‘‘bare’’ asser-
tions by the employer there.
Saldivar’s testimony further established that a coworker,
Miguel Jarrin, on returning to work with him, similarly was
given fewer work hours.
116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Collado, Pineda, and Taveras had been included in the settlement agree-
ment approved by Judge Green, discussed above.
Respondent has unlawfully failed to reinstate Saldivar and
Jarrin to the positions of employment they held prior to the
strike in that their hours of work had been discriminatorily
reduced.
5. Lauro Sosa
Sosa was hired by Respondent on August 20, 1987, and
worked in the shipping and receiving department, unloading
trucks. Prior to the start of the strike, he worked an 8-hour
shift and also 4 to 5 overtime hours each week. He partici-
pated in the strike and returned to work on March 26, 1988.
He was then assigned to another department, receiving, at a
location different from the one he worked at before the
strike. He was assigned work for only 5 hours a day. Three
weeks later, he was laid off. His layoff is a matter considered
separately below.
Respondent has failed to reinstate Sosa to his former posi-
tion of employment and has failed to offer any business jus-
tification therefor. Its failure to reinstate him to his regular
shift in the shipping and receiving department and its assign-
ing him fewer work hours were unlawfully motivated.
6. Jorge Collado, Luis Pineda, and Quilvio Taveras
None of these three alleged discriminatees testified. How-
ever, Luis Pinell, whose status was discussed above, testified
as to them. He related that Taveras had worked with him op-
erating a computer in the UPS department before the strike
started. Pinell further testified that Taveras, Pineda, and
Collado had their jobs changed on their return to work when
the strike ended. Respondent’s payroll records disclose that
Taveras was assigned to the receiving department at the con-
clusion of the strike and that Pineda and Collado (who had
worked in the receiving department before the strike) were
assigned to the night receiving department after the strike
ended.
In the absence of any evidence from Respondent to negate
the prima facie evidence offered by the the General Counsel,
I find that Respondent has unlawfully failed to reinstate
Collado, Pineda, and Taveras to the jobs they held prior to
the strike.9
7. Christine Sosa, Sabas Vergara, Roberto Rodriguez,
and Aldwin Skeete
These four employees did not testify. They took part in the
strike called by the Union and their signatures, addresses,
and telephone numbers appear on the sign in sheets filled out
by the returning strikers on March 17, 1988.
The General Counsel relies on the data contained in sub-
poenaed computerized payroll records of Respondent to sup-
port the complaint allegation that Respondent unlawfully
failed to reinstate them to their former positions of employ-
ment.
As to Christine Sosa, these records show that was hired
on January 24, 1985, and that, prior to the start of the strike,
he worked as a floorman in department 48, usually working
40 hours a week plus considerable overtime. On his return
after the strike ended, he was assigned to night receiving de-
partment (dept. 51) where he worked only 8 to 12 hours a
week. Further, at least two employees who began work for
Respondent after the strike started were working in Sosa’s
former department while Sosa was assigned to the night re-
ceiving department after the strike ended. Those two employ-
ees then also worked appreciably more hours than did Sosa.
I find, from the foregoing, that Respondent has unlawfully
failed to reinstate Sosa to his former job as a floorman.
As to Sabas Vergara, the payroll records show that he was
hired by Respondent on October 27, 1986, and, prior to the
start of the strike, he worked in the platform department
(dept. 42), usually for 40 hours a week and receiving consid-
erable overtime work. On his return, he was reinstated to the
platform department. His work hours were not then materi-
ally at variance with those of the other employees in that de-
partment. Nor do the records show that there were any newly
hired employees in that department then. I find, from the
foregoing, that the evidence fails to establish that Sabas
Vergara was not reinstated to his former position of employ-
ment.
Concerning Roberto Rodriguez, the records show that he
began working for Respondent on May 2, 1981, and that he
was assigned to the order preparations department (dept. 43)
before the strike began, working usually a 40-hour week and
considerable overtime. On returning to work at the conclu-
sion of the strike, Rodriguez was assigned to a different de-
partment (the location department, dept. 07), although an em-
ployee, hired after the strike began, was then employed in
the order preparation department.
Respondent offered no rebuttal evidence pertaining to
Rodriguez and I thus find that Respondent discriminatorily
failed to reinstate him to its order preparation department
after the strike ended.
The last employee in this group, Aldwin Skeete, was hired
by Respondent, according to its records, on October 20,
1987, several weeks before the strike began. He was working
then in the pick and pack department (dept. 10). On his re-
turn when the strike ended, he was assigned to the receiving
department (dept. 40), notwithstanding that three other em-
ployees in his former department than had been hired after
the strike began and that those newly hired employees
worked appreciably more hours than did Skeete. Based on
this uncontroverted evidence, I find that Respondent has
discriminatorily failed to reinstate Skeete to its pick and pack
department and has unlawfully failed to provide him with his
regular work hours.
D. Alleged Unlawful Discharge of Lauro Sosa
As found above, Respondent unlawfully failed to reinstate
Sosa to the job he held prior to the strike.
Sosa testified that, on his return to work at the end of the
strike, Respondent’s plant manager, Pedro Maona, stated that
he would fire workers in order that the Union would not
have any strength. Maona did not testify. I credit Sosa’s ac-
count.
Sosa was laid off three weeks after his return although
there were employees, who had begun working for Respond-
ent during the strike, still working for Respondent after his
layoff.
Respondent’s payroll records contain a notation, ‘‘T,’’ in-
dicating that Sosa was terminated from its employ.
The General Counsel has made out a clear prima facie
case of discrimination and, as Respondent offered no pro-
117A.P.A. WAREHOUSE
10 As amended at the hearing.
bative rebuttal evidence, I find that Sosa was unlawfully laid
off.
E. Alleged Unlawful Discharge of Martin Sosa Torres10
Torres began working for Respondent on February 3,
1986; he took part in the strike and returned on March 21,
1988. On March 28, he was ill with a sore throat. He testi-
fied that he telephoned Respondent’s office several times that
morning to notify it that he was unable to go work but that
no one answered the phone. He saw a doctor that day who
gave him a note, dated that same day. Later that day, he
went to Respondent’s plant to cast his ballot in the represen-
tation case election being conducted that day.
When Torres reported for work the next day, the security
guard stopped him from entering the building. Pretter, Re-
spondent’s controller, and its plant manager, Maona, came to
the security area and asked Torres why he missed work the
previous day. Torres replied that he was ill. Maona asked
how he could have been sick and yet have come to the plant
to vote. Torres explained that his throat had been sore and
that dust in his work area would have aggravated it. Maona
then told him that he was discharged.
Pretter testified for Respondent that he assumed that
Torres had voluntarily left Respondent’s employ by not hav-
ing called in on March 28 to explain his absence.
Maona’s questions to Torres indicate that Respondent was
more concerned with the fact that Torres came in on March
28 to vote than with the fact that it had no record that he
had called in earlier. His summary rejection of Torres’ expla-
nation further indicates that he had never been interested in
hearing it. Pretter’s account that Torres had quit is obviously
inconsistent with the fact that he voted on March 28. These
factors, along with the uncontroverted account given by
Lauro Sosa, as noted above, that Maona had said that Re-
spondent would fire employees to reduce the Union’s
strength, make out a prima facie showing of unlawful dis-
crimination. Respondent failed to offer any probative evi-
dence that it would nontheless have discharged Torres. I thus
find that Respondent discharged Torres because of his sup-
port for the Union.
F. Alleged Discriminatory Discharge of Diego Davila
As discussed above, Davila began working for Respondent
in 1982; he was a member of the Union’s organizing com-
mittee; he took part in the strike, serving as picket line cap-
tain; and returned to work on April 4, 1988.
On about November 1, 1988, Davila began wearing a shirt
that had been discarded and which was laying on top of
boxes at Respondent’s facility. Davila’s testimony is that
other employees had also been wearing similarly discarded
shirts in order to keep warm. Davila testified that, on No-
vember 10, Respondent’s personnel manager discharged him,
telling him that he was using the ‘‘company’s garments.’’
According to Davila, when he protested that this was a com-
mon practice, the personnel manager responded that Davila
was discharged on management’s orders.
Respondent’s controller, Pretter, testified that Respondent’s
warehouse manager discharged Davila because he was wear-
ing an article of clothing that belonged to one of Respond-
ent’s customers. Pretter further testified that Respondent had
done time and study motions on Davila which disclosed that
he did 60 percent to 70 percent less work than other employ-
ees but that Respondent did not discharge him for that reason
as it ‘‘bent over backwards to accommodate him.’’
The evidence in the record before me makes clear that
Davila was an active union adherent; that he was treated dis-
parately as to his discharge from that accorded other employ-
ees who wore discarded shirts to keep warm; and that Re-
spondent made little effort to ‘‘accommodate’’ him in that
regard despite Pretter’s assurances thereon. Further, the
record is unclear as to just when, or as to who in Respond-
ent’s management, made the decision to discharge Davila.
I find that a prima facie showing has been established by
the General Counsel that Davila’s discharge was due to his
having supported the Union and that Respondent’s efforts to
rebut that showing tend instead to confirm it.
G. Alleged Discriminatory Promulgation and
Enforcement of a Stricter Lateness Policy
The complaint alleges that Respondent had adopted a more
strict lateness policy in order to discourage support for the
Union among its employees. In support thereof, the General
Counsel offered the testimony of Rene Pinell that, imme-
diately on his return from work at the conclusion of the
strike, a notice was posted alongside the employee timeclock
which stated that employees would not be permitted to enter
the plant if they arrived 10 minutes late for work. Prior to
the strike, Respondent’s policy had been to dock an em-
ployee for a half hour for being 15 minutes late. The new
policy was enforced, at least as to one employee, who was
working in the ticketing department.
In S & S Screw Machine Co., 288 NLRB 235 (1988), the
Board adopted a finding that the General Counsel had made
out a prima facie case of unlawful discrimination based on
the employer in that case having promulgated a stricter tardi-
ness policy immediately after a representation election had
been conducted among its employees. The instant case is
very closely analogous to that case and I thus find that the
General Counsel has made out a prima facie showing of un-
lawful discrimination by Respondent in its sudden promulga-
tion of a more stringent lateness policy. Respondent has not
persuaded me that it would, notwithstanding, have imple-
mented that policy for nondiscriminatory reasons. Accord-
ingly, I conclude that the stricter lateness policy was unlaw-
fully motivated.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Sec-
tion 2(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. Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(1) and (3) of the Act by having:
(a) Failed to make valid offfers, to the following named
employees, of reinstatement to their former positions of em-
ployment, on their unconditional application therefor, be-
cause of their having supported the Union.
Christopher Grant Tomas L. Sosa
Michael Kiernan Senon Tapia
Alfredo Amigon a/k/a
Socorro Ponce Elba Alvarez Battista
118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 As Respondent retained striker replacements after the conclusion of the
strike and spread available work hours among them and the returning unfair
labor practice strikers, it is appropriate to defer to the compliance stage the
calculations of the losses suffered by all the returning strikers. Cf. Suburban
Ford, Inc., 248 NLRB 364, 365 (1980). See also Champ Corp., 291 NLRB
803 (1988).
12 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
Thomas Pringle Crescencio Vergara
Facindo Ruiz Francisco Baez
(b) Failed to assign the following named employees to
their former job, as noted, on their return to work after their
participation in an unfair labor practice strike:
Miguel Aurich floorman department
Diego Davila repacking department
Rene Pinell UPS department
Justo Saldivar order preparation department
Miguel Jarrin order preparation department
Lauro Sosa shipping and receiving
department
Jorge Collado receiving department
Quilvio Taveras UPS department
Christino Sosa floorman department
Roberto Rodriguez order preparation department
Aldwin Skeete Pick and pack department
(c) Assigned the following named employees to more on-
erous jobs with fewer working hours because they took part
in an unfair labor practice strike:
Miguel Aurich Lauro Sosa
Diego Davila Christino Sosa
Rene Pinell Roberto Rodriguez
Justo Saldivar Aldwin Skeete
Miguel Jarrin
(d) Discharged Lauro Sosa, Martin Sosa Torres, and Diego
Davila in order to discourage support among its employees
for the Union.
(e) Promulgated and enforced a stricter lateness policy in
order to discourage support among its employees for the
Union.
4. The unfair labor practices described in paragraph 3
above affect commerce within the meaning of Section 2(6)
and (7) of the Act.
5. Respondent did not unlawfully discriminate as to its
employees Sabas Vergara and Victor Alvarez.
REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall recommend that it be ordered to
cease and desist therefrom, and to take certain affirmative ac-
tion designed to effectuate the policies of the Act.
Respondent shall offer to Christopher Grant, Michael
Kiernan, Alfredo Amigon, Thomas Pringle, Facundo Ruiz,
Tomas L. Sosa, Senon Tapia, Elba Alvarez Battista,
Crescencio Vergara, Francisco Baez, Miguel Aurich, Diego
Davila, Rene Pinell, Justo Saldivar, Miguel Jardin, Lauro
Sosa, Jorge Collado, Luis Pineda, Quilvio Taveras, Christine
Sosa, Roberto Rodriguez, Aldwin Skeete, and Martin Sosa
Torres, full and immediate reinstatement to their former posi-
tions of employment, as found above, and make them and
others similarly situated11 whole for all losses of earnings
and other benefits suffered by reason of its unlawful failure
to have reinstated them, and/or by unlawfully discharging
them, such losses to be computed and accordance with the
formula set forth in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest thereon computed in accordance with
the principles set out in New Horizons for the Retarded, 283
NLRB 1173 (1987).
Respondent shall also make whole employees who in-
curred lost wages by reason of its implementing its discrimi-
natory lateness policy, within interest thereon computed as in
New Horizons for the Retarded, supra.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended12
ORDER
The Respondent, A.P.A. Warehouses, Inc.; Sea-Jet Truck-
ing Corporation; Affiliated Terminals, Incorporated; Sea-Jet
Industries, Incorporated; Sea-Jet Trucking and A.P.A. Ware-
houses, Incorporated, Brooklyn, New York, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing to reinstate unfair practice strikers to their
former positions of employment upon their unconditional ap-
plication therefor.
(b) Assigning returning unfair labor practice striking em-
ployees to more onerous work and to fewer work hours than
they were assigned to before they commenced to strike.
(c) Discharging any employee to discourage support
among its employees for International Union, United Auto-
mobile, Aerospace and Agricultural Implement Workers of
America, AFL–CIO.
(d) Promulgating or enforcing a lateness policy in order to
discourage employees from continuing to support the above-
named Union.
(e) In any other way interfering with, restraining, or coerc-
ing its employees in the exercise of the rights guaranteed
them in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) In accordance with the manner provided for in the rem-
edy section above, offer
Christopher Grant Diego Davila
Michael Kiernan Rene Pinell
Alfredo Amigon a/k/a
Socorro Ponce Justo Saldivar
Thomas Pringle Miguel Jarrin
Facundo Ruiz Lauro Sosa
Tomas L. Sosa Jorge Collado
Senon Tapia Luis Pineda
Elba Alvarez Battista Quilvio Taveras
Crescencio Vergara Christino Sosa
Francisco Baez Roberto Rodriguez
Miguel Aurich Aldwin Skeete
full and immediate reinstatement to the jobs they held at the
commencement of the strike, as found above, and make each
of these employees and all other returning unfair labor prac-
tice strikers similarly situated whole, with interest as pro-
119A.P.A. WAREHOUSE
13 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
vided for in the remedy section here, for any losses in earn-
ings and other benefits they suffered as a result of their ei-
ther not laving been reinstated in full to their former jobs,
or to their have being unlawfully discharged, or to both.
(b) Make whole, with interest as provided for in the rem-
edy section, all employees who suffered losses as a result of
the enforcement of the lateness policy, found to have been
unlawfully promulgated.
(c) Remove from its files all references to the unlawful
discharges of Lauro Sosa, Martin Sosa Torres, and Diego
Davila and notify them in writing that this has been done and
that their discharges will not be used against them in any
way.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Post at its Brooklyn, New York facility, copies of the
attached notice marked ‘‘Appendix.’’13 Copies of the notice,
on forms provided by the Regional Director for Region 29,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the allegations of the com-
plaint that Respondent had discriminated against Sabas
Vergara and Victor Alvarez are dismissed.