The Laredo Daily Times

National Labor Relations Board - Board Decisions

Dec 3, 1945

64 N.L.R.B. 1191 (N.L.R.B. 1945)

I n the Matter of THE LAREDO DAILY TInIEs and LAREDO TYPooRAPIIICAL UNION No. 778 Case. No. 16-0-101. SUPPLEMENTAL DECISION AND ORDER December 3, 191145 On June 14, 1945, the Trial Examiner issued his Supplemental Inter- mediate Report in the above-entitled proceeding, finding that the re- spondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in a copy of the Supple- mental Intermediate Report attached hereto. Thereafter, the re- spondent filed exceptions to the Supplemental Intermediate Report and a supporting brief. No request was made for oral argument before the Board at Washington, D. C., and none was held. The Board has reviewed the rulings on motions and on objections to the admission of evidence made by the Trial Examiner at the hearing, and finds that no prejudicial error was committed. The rul- ings are hereby affirmed. The Board has considered the Supplemental Intermediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the following additions and clarifications. We find, as did the Trial Examiner, that the respondent discharged Apolonia Serna on October 10, 1944, and thereafter refused to rein- state him because of his membership and activity in the Union, par- ticularly his resort to the Union for aid in settling his back pay claim against respondent, thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. According to testimony in the Supplemental record, which we credit, when Allen, the respondent's president, received a copy of the Board's prior Decision and Order in this proceeding, he attempted to obtain a settlement of the back pay provisions thereof by offering Serna a check for $160 on condition that Serna "sign some letters." 1 58 N. L. R B. 458 64 N. L. R. B., No. 201. 1191 1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Serna, believing that the sum offered did not represent the full back wages to which he was entitled, declined to sign any papers in con- nection with the check. Whereupon, Allen threw the check at him, saying, "Do what you please." 2 As the Trial Examiner found in his Supplemental Intermediate Report, Serna thereupon enlisted the aid of the Union in recovering his back wages and, after discussing the matter with union officials Rodriguez and Guerrero, requested them to present his 'claim to Allen. Receiving no answer to the Union's letter to Allen concerning Serna's back wage claim, Rodriguez and Guerrero approached Allen in his office concerning the matter on October 10, 1944. When Guerrero attempted to explain some figures which he had drawn up concerning Serno's back pay, Allen abruptly ordered both union officials to leave the office and announced his inten- tion of "kick[ing] Serna out of the shop right away," Immediately thereafter, Allen went into the shop and forcibly conducted Serna into the office where he discharged him. The record thus shows that the respondent discharged Serna be- cause he sought the aid of the Union in procuring the back wages to which he believed himself entitled under the prior Decision and Order of the Board in this case. Section 7 of the Act guarantees to employees the right to join unions and to engage in concerted activities for their mutual aid or protection. Implicit in this grant of rights is the right of employees to utilize unions as their spokesmen in controversies with their employers relating to terms and conditions of employment. Ac- cordingly, we find that Serna's discharge interfered with the rights of Serna and other union members under the Act to make common cause over Serna's back pay grievance, in violation of Section 8 (1) of the Act. The responden't's conduct in discharging Serna neces- sarily discouraged membership in the Union and therefore also vio- lated Section 8 (3) of the Act.3 Whether the respondent's conduct be viewed as a violation of Section 8 (1) or Section 8 (3) of the Act, we find that the effectuation of the policies of the Act requires the remedy hereinafter set forth. THE REMEDY Having found that the respondent has violated Section 8 (1) and (3) of the Act, we must order the respondent, pursuant to the mandate of Section 10 (c), to cease and desist therefrom. We also predicate our cease and desist order upon the following findings : The respondent's .whole course of conduct discloses a purpose to defeat self -organization and its objects among its employees. The records in the prior and supplemental proceedings show, and we have found, that the respond- This finding is based upon the uncontradicted testimony of Serna a See Matter of Ross Gear and Tool Company, 63 N. L . R. B 1012. THE LAREDO DAILY TIMES 1193 ent has interfered with, restrained, and coerced its employees in the exercise of their statutory rights by various acts and statements. These illegal activities included the discriminatory discharge of Serna on three occasions, conduct which "goes to the very heart of the Act." Because of the respondent's unlawful conduct and its underlying pur- pose, we are convinced that the unfair labor practices found are per- suasively related to the other unfair labor practices proscribed by the Act and that danger of their commission in the future is to be antici- pated from the respondent's conduct in the past. The preventive pur- pose of the Act will be thwarted unless our order is co-extensive with the threat. In order, therefore, to make more effective the inter- dependent guarantees of Section 7, to prevent a recurrence of unfair labor practices, and thereby minimize industrial strife which burdens and obstructs commerce and thus effectuate the policies of the Act, we shall order the respondent to cease and desist from in any manner in- fringing upon the rights guaranteed in Section 7 of the Act.5 As recommended in the Supplemental Intermediate Report, we shall also order the respondent to take certain affirmative action de- signed to effectuate the policies of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, the Laredo Daily Times, Laredo, Texas, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in the Laredo Typographical Union No. 778, or any other labor organization of its employees, by dis- charging or refusing to reinstate any of its employees or by dis- criminating in any other manner in regard to their hire and tenure of employment or any terms or conditions of their employment; (b) In any manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the Laredo Typographical Union No. 778, or any other labor organization, to bargain collectively through representatives of their choosing, and to engage in con- 'N L R B v Entwistle Manufacturing Company, 120 F (2d) 532, 536 (C. C A. 4). See also N L R. B. v Automotive Maintenance Machinery Company, 116 F. (2d) 350, 353 (C C A 7), where the Circuit Court of Appeals for the Seventh Circuit observed: "No more effective form of intimidation nor more violative of the N. L. R . Act can be conceived than discharge of an employee because he joined a union to See Bradley Lumber Co v. N. L. R B., 128 F. (2d) 768, 771 (C C. A 8), enf'g 34 N. L. R B 610 1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD certed activities, for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer to Apolonio Serna immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority and other rights and privileges; (b) Make whole Apolonio Serna for any loss of pay he may have suffered by reason of the respondent's discrimination against him, by payment to him of a sum of money equal to the amount which he normally would have earned as wages during the period from the date of his discharge on October 10, 1944, to the date of the respondent's offer of reinstatement to him, less his net earnings during said period; (c) Post at its plant at Laredo, Texas, copies of the notice at- tached hereto, marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by the respondent's representative, be posted by the respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respond- ent to insure that said notices are not altered, defaced, or covered by any other material; (d) Notify the Regional Director for the Sixteenth Region in writing, within ten (10) days from the receipt of this Order, what steps the respondent has taken to comply herewith. CHAIRMAN HERZOG took no part in the consideration of the above Decision and Order. 1"LRB 577 (9-1-44) NOTICE TO ALL EMPLOYEES Pursuant to a Supplemental Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : We will not in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Laredo Typographi- cal Union No. 778 or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. THE LAREDO DAILY TIMES 1195 We will offer to the employees named below immediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. Apolonio Serna All our employees are free to become or remain members of the above-named union or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment, against any employee because of member- ship in or activity on behalf of any such labor organization. THE LAREDO DAILY T IDMES, Employer Dated-------------------- By------------------------------ (Representative) (Title) NOTE: Any of the above-maned employees presently serving in the armed forces of the United States will be offered full reinstatement upon application in accordance with the Selective Service Act after discharge from the armed forces. This notice must remain posted for 60 clays from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT Messrs Elmer Davis and Glenn L Moller, for the Board Mr. Robe t S. Phelps , of Laredo , Tex., for the respondent Mr Juan-1 Guerrero . of Laredo , Tex, for the Union STATEMENT OF THE CASE Upon an amended charge duly filed on February 21, 1'144, by Laredo Typo- graphical Union No. 778, affiliated with the International Typographical Union, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Sixteenth Region (Fort Worth, Texas), issued its complaint dated March 1, 1044, against The Laredo Daily Times, Laredo, Texas, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices, affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accompanied by notice of hearing thereon, were duly served upon the respondent and the Union. With respect to the unfair labor practices, the complaint, as amended at the hearing, alleged in substance: (1) that from about November 15, 1943, the re- spondent, through its officers, agents, and employees, namely William P. Allen and Guadalupe Rodriguez, has disparaged and expressed disapproval of the Union; warned and threalened its employees to refrain from assisting, joining or remaining members of the Union ; stated tp its employees that if they engaged in union or concerted, activities their employment would be terminated; and 1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD required, as a condition of employment, that they abandon or resign their mem- bership in the Union; (2) that on or about November 27, 1943, the respondent discharged Apolonio Serna and, from that date to January 21, 1944, refused to reinstate him; that the respondent reemployed Serna on or about January 21, 1944, and again discharged him on or about March 6, 1944, and thereafter refused t,o reinstate him, because he joined or assisted the Union or engaged in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, and/or because lie filed charges or gave testimony pursuant to the Act ; and (3) that by the foregoing acts, the respondent interfered with, restrained, and coerced its employees in the exercise ,of the rights guaranteed in Section 7 of the Act Pursuant to notice, a hearing was held on March 16. 17, and 18, 1944, at Laredo, Texas, before W. P. Webb, the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the respondent «eie represented by counsel and the Union by its Secretary and Treasurer All parties participated in the hearing Full opportunity to be heard. iii exanilno and cross-examine witnesses, and to introduce evidence bearing upon the issues, was afforded all parties At the beginning of the hearing the respondent filed its aiiswei 'in winch it admitted certain allegations of the cornplaiut in iespect to its business, and that it discharged Apolonio Serna on or about November 27, 19-13, but denied all material averments of the complaint relating to the unfair labor piactices At the beginning of the hearing Board's counsel moved to amend the complaint to include the allegation that the respondent had also discharged Apolonio Serna on March 6, 1944, thereby violating Section 3 (4) of the Act The motion was granted by the Trial Examiner without objection. Thei eupon the i espondent's counsel moved to amend the respondent's answer to deny the aforesaid amended allegation The motion was granted by the Trial Examiner without objection At the conclusion of the hearing a motion by the Board's counsel to coutorm the pleadings to the proof in respect to minor inaccui acies regarding dates, the spell- ing of names, aod other matters not related to the fundamental issues, was granted by the Trial Examiner without objection At the conclusion of the hearing, counsel for the respondent nioned to dismiss the complaint in its entirety. Ruling on this motion w,is reserved It is now denied by the undersigend Opportunity to argue orally before the Trial Examiner at the conclusion of the hearing, and to file briefs with the Trial Examiner was waived by the parties. Upon the entire record in the case and from his observ ation of the witnesses, the undersigned makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent , The Laredo Daily Times , is a Texas corpoia tion , having its principal office and place of business in Lai edo, Texas, where it is engaged in the publication , sale, and distribution of a daily and Sunday newspaper, known as The Laredo Daily Times . It is the only daily newspaper published in Laredo The daily edition has a circulation of approxiniateln 12,01)1) copies . and the Sunday edition about the same It is published in both English and Spanish and is distributed in Texas and Mexico, about one-third of the copies going to Mexico Advertising material is received from busincQs concernis in Mexico and States other than the State of Texas The respondent is a niembem of the Asso- ciated Press and uses its wire reports . It also uses feature articles supplied by THE LAREDO DAILY TIMES 1197 Newspaper Enterprise Association of Cleveland, Ohio, and United Feature Syn- dicate, Inc The respondent procures approximately 90 percent of its paper from Canada, which amounts to about $2,000 a month in value. The respondent admits, for the purpose of this proceeding, that it is engaged in commerce within the meaning of the Act. The respondent not nially employs approximately 25 em- ployees 1V P Allen is president and general manager, and owns practically all of the stock of the respondent. if THE ORGANIZA11oN INVOLVED Laredo T.)pogiaphical Union No. 778, affiliated with the International Typo- graphical Union. is :r labor organization admitting to membership employees of the iespondent III THE UNFAIR LABOR PRACIIGES The d,,.. cr on inatoiy disehai yes of Apolonio Serita on November 27, 1943, and Mnrc1r, 6. 1944; trite, ter cnce , rests aint , and coercion 1 The discharge of November 27, 1943 The piedeiessor of the Union began its organizational campaign in Laredo, Texas, about June or July 1942 It was known as "Labor Group of Graphic Arts" In September 1943, this group became affiliated with the International Typographical Union , and Local 778 was established . The Union has a contract with the South Texas Citizen , a local weekly newspaper, but its efforts to or- ganize the iespondent 's employees have resulted in little or no success . None of them joined the Union , except Apolonio Serna. This employee had worked for the respondent . all told , about 6 years up to the time of his first discharge on November 27, 1943. His job was setting up forms for advertisements Serna is a Mexican but has some knowledge of English . He joined the predecessor of the Union in 1942 it fact which became known to the respondent . He was elected "Segunlo Vocal ." of the Union, which means second trustee or director. Serna solicited some of the respondent's employees to join the Union but with no suc- cess On November 26, 1943, the day before his first discharge a group photo- graph appeared in the South Texas Citizen The group consisted of a repre- sentative of the International Typographical Union and 15 members of Local 778, one of whom was Serna . None of the others, appearing in this photograph, was an employee of the respondent . Although offered to thou respondent for pub- lication , Allen refused to use it Copies of the South Texas Citizen were re- ceived .iegularly by the respondent. On Saturd a y. November 27, the next day after the photograph was published, Cuadaloupe Rodriguez , one of the respondent 's foremen , summarily and without warning gave Serna his check and said to hint "This ceases your employment." Serna left the plant and on his way down town met President Allen. Allen told him that he had less work in the plant and less pages in the newspaper, but that he was going to have an interview with some of the employees , and that lie could then come back to work. Serna returned to the plant about 2 weeks after his discharge and had a conversation with Foreman Rodriguez. The latter patted Serna on the back and said to him. "Mr. Allen inquired about you and asked me whether or not you were working " Serna replied that lie had not been working . Rodriguez said, "Very well , there is one thing , you have got work here you have got employment here, but cease to be a member of the union . . . Mr. Allen has been very good to xis . You have got to eat, you have got a family . . It is up to you whether you want to work or not " Rodriguez also told Serna that the Union would not 1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD help him Serna told Rodriguez that he would think it oNer About 2 weeks later, that is about January 1, 1944, Serna again went to the plant and saw Fore- man Rodriguez. The latter said to Serna "What have you decided, have you made up your mind:" Serna replied that he was willing to work, but that he belonged to the Union Rodriguez ieplied that he was leaving it up to him, and told him that he had instructions from Allen to tell him that if he would give up the Union, he could come back to work' Accoi ding to the testimony of Eduai do Rodriguez and Juan Guerrero,' which is credited by the undersigned, at, a meeting of the Union on Sunday, January 16, 1944, it was resolved by the members that information would be given out that Serna was no longer a member of the Union The purpose of this resolution was to secure Serna's reinstatement by the respondent. On that same day, Ednaido Rodriguez and Juan Guerrero, together with two others, went over to Nuevo Laredo, Mexico, which is just across the river from Laredo, Texas, and met,Juan Bazaldua, the respondent's Spanish Editor, in charge of the Spanish section and a supervisor. Over a glass of beer, Rodriguez told Bazaldua that Serna was no longer a member of the Union. Bazaldua replied that most of the respondent's employees were afraid or "really were not game," "and that probably the re- spondent would reinstate Serna, since he had been discharged because of his union membership." 3 On January 20, the respondent sent for Serna He went to the plant and talked to Allen, with Foreman Rodriguez acting as interpreter Allen asked him 11' he wanted to work and Serna replied that lie did. Foreman Rodriguez then said to Serna, "Let's dedicate ourselves, let's devote ourselves to work and you just keep out of this union proposition, this union acquaintance, let's get down to work."' Serna went back to work the next day, at his old job. 2. The discriminatory discharge of March 6, 1944 On Thursday, March 2, 19=14, the respondent received the complaint and notice of hearing thereon.' On Saturday, March 4, Allen told Serna, in the presence of 1 These findings are based upon the credible testimony of Serna, Foreman Rodriguez did not specifically deny these facts He testified that he told Serna that Allen had said business was "picking up" and if it kept up Serna could have his job back, but that nothing was said about the Union. The undersigned credits the testimony of Serna. 2 Eduardo Rodriguez was president of the Union and a foreman at the South Texas Citizen plant. Juan Guerrero was secretary-treasurer of the Union. 3 Bazaldua admitted that lie met Rodriguez and the others in Nuevo Laredo, on Sunday, January 16, and that they talked, but "it was not a topic of interest. We were just talking there in the saloon about work and war news." He denied that anything was said about Seina The undersigned was not favorably impressed with the testimony of Bazaldua and finds that he made the statements substantially as testified to by Eduardo Rodriguez and Guerrero Bazaldua further testified that lie had seen Rodriguez at Nuevo Laredo, Mexico, on a number of occasions, but that Rodriguez had never before or since the meeting on Sunday. January 16. asked him to have a glass of beer. 4 This finding is based upon the credible testimony of Serna, whom the undersigned found to be a straightforward and truthful witness Foreman Rodriguez testified that the respondent ieinstated Serna because they had a lot of work to do and could not get an} one in town 6 Under (late of March 1, 1944, the Regional Director wrote the respondent as follows The Laredo Daily Times Attention Mr W. P Allen, Publisher Laredo, Texas Re The Laredo Daily Tunes Case No 16-C-1019 My dear Mr Allen We are enclosing copy of Complaint and Notice of Hearing in the above-entitled matter Our object is always to avoid the procedure of hearing where possible. Should you be disposed to contact us prior to the date of the hearing for the purpose of THE LAREDO DAILY TIMES 1199 Foreman Rodriguez, Jimmie Watt, press foreman, and Pena the bookkeeper, the latter and Rodriguez acting as interpreters, that there was not sufficient work to justify keeping him. Allen showed Serna a lot of books and figures, and finally asked Serna if he owed him anything. Serna replied that he did not. Allen then said to Serna, "Haven't you filed a statement against me or The Laredo Times?' Serna replied that he had not. Allen then said "Well, if you have not filed such a complaint are you willing to sign a letter for me?" Serna agreed, and Allen in- structed Pena to write the letter and told him what to put into it. It was then lunch time, and Serna said that lie would come back. About 3: 00 p in. that day, Serna returned to the plant and saw Rodriguez The latter asked Serna if he had signed the letter. Serna replied that he had not. Rodriguez then took Serna over to the desk, showed him the letter, translated it into Spanish, gave Serna a pen and told him to sign it The letter was typewritten in English and was addressed to Dr Elliott, the Regional Director. Serna looked over the letter and retused to sign it. The letter, according to Serna's testimony, referred to Paragraph 5 of the Complaint.' As to the text of this letter, Serna testified as follows : I recall this in which the letter stated that I would agree not to appear in any court at any time; by that I mean that we were not to come to no hear- ing or no procedure would be taken as we are doing now . . . That was one of my reasons for not signing it, when he [Foreman Rodriguez] explained to and that I was not to appear against The Laredo Tunes or Mr. Allen in any court. That is one of the outstanding points that I understood. When Serna refused to sign the letter, Foreman Rodriguez said to him "You agreed to sign this letter for Mr. Allen, . . . If you do not sign this letter, you do not iealize just in what sort of a mess you are getting into." 7 Serna told Rodriguez that he would see the pi esident of the Union about whether he should sign the letter or not. With the foreman's permission, Serna then left the plant, but returned later in the clay. He saw Pena and Watt, both of whom urged him to sign the letter. Serna again refused. On the following Monday morning, March 6, Serna reported for work as usual. After he had been at work about 15 minutes, Allen and Pena came to his department Pena, interpreting for Allen, said to Serna, "You have no reason why you should not sign this letter. If you do not come to some agreement as Mr. Allen has stated, there is the door." According to Serna, Allen was angry and excited and used some profanity, which was not interpreted by Pena. Serna understood from what Allen said, that if he did not sign the letter, he was discharged. Serna went outside. Serna 's credible testimony as to what then happened is as follows : I started out and as I was right at the door, Mr Allen called me back and I told him I would not return to talk to him because I was worried adjusting the matters made the subject of the enclosed instrument , in compliance with the National Labor Relations Act, we should be happy to have you call upon us Sincerely, (Signed) EDWIN A ELLIOTT, Regional Director 'Paragraph 5 of the Complaint states "Respondent did discharge and refuse or fail to reinstate the said Apolonio Seina for the reason that he joined or assisted the union or engaged in other concerted activities for the purpose of collective bargaining or other mateiial aid or pieteclion " 'i Tliese fi,idings are based upon the credible testimony of Serna Rodriguez denied having made this statement to Serna The undersigned does not credit his denial and finds that he made the statement substantially as testified to by Serna. 1200 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD and because he was road, that is why I would not go back. As I was going out, Mr. Guadalupe Rodriguez, the foreman, was coming in, and then both Mr. Rodriguez and Mr Allen called me back. and inasmuch as I was outside, I proceeded on to my home. That was all On the same day, Allen wrote Seine a letter reciting the history of Seine's employment and endeavoring to justify the respondent's actions toward Serna, but it did not state that Serna would not be required to sign the above-desci ibed letter. Serna did not return to work and, at the time of the hearing, had not been reinstated. 3. Conclusions as to the discharges and interference, restraint, and coercion In the respondent's answer, signed by Allen, it is contended that Serna was discharged on November 27, 1943, because "the seasonal increase of the business was expected and had not materialized." It further contends that Set-Ila wits oliered, but refused, reemployment about two weeks later At the hearing, witnesses for the respondent gave confused, contradictory and evasive testimony as to the actual clischaige and the respondent's alleged reasons for it. Foreman Rodriguez testified that lie discharged the employee. President Allen testified, "I called him in there and discharged hint " Rodri- guez at first gave as one of the reasons for discharging Serna, "lie was the newest nian there." Shortly thereafter Rodriguez admitted that Serna had more seniority than Castillo, another employee doing the same sort of work, who was not discharged Allen testified that he discharged Seines. Because I had an overdraft at the bank for about $2,000 00 which my books reflect, and I was having a faster loss in business than I expected Allen further stated, however, that he had not needed Seine during the entire year of 1943, and admitted that he had been overch•afted at the bank "since the beginning of the summer " Allen gave no reasonable explanation as to why, if poor business and bad debt, both of long existence, were the real reasons for Serna's discharge, the decision to dismiss the employee was suddenly made on November 27 Nor do the reasons for the discharge advanced by the re- spondent bear scrutiny in the light of immediately subsequent events Almost immediately after Serna's dismissal another emploee was hired to take his place.s As found above, about two weeks after the discharge Serna was offered his job back if lie would drop the Union He rejected this condition. The Trial Examiner is convinced and finds that there is no merit in the contentions of the respondent that Serna was discharged on November 27 because of business decline and a bad debt Serna was the only union member in the iespondent's plant. The respondent knew that Serna was a member of the local group which was the predecessor of the Union, chartered by the International late in September 1943. As noted above, the Union endeavored to have the respondent publish a photograph of union members and officers, including Serna, but the union president was told by the Spanish Editor that Allen refused permission. On November 26, 1943, the picture was published by the respondent's weekly competitor, the South Texas Citizen On the next day Serna was summarily discharged. In mid- December and again early in January Serna was, in effect, offered reinstatement by Rodriguez upon the condition that lie cease his union membership. On January 16 the Spanish Editor was told that Serna had dropped such member- ship. Four days later the respondent sent for the employees, and reinstated 8 Allen stated, "About the first of December." THE LAREDO DAILY TIMES 1201 him without asking him if he still belonged to the Union, but with the admoni- tion that he "keep out of this union proposition." The Trial Examiner concludes, and finds, that Serna was discharged on November 27, 1943, because of his union membership and activity in behalf of that organization. The answer contends that Serna was not discharged on March 6, but that he left his work voluntarily although urged to remain. The testimony of the re- spondent's witnesses as to the events of March 4 and 6 are likewise confused and contradictory. The document which, as found above, Serna was told to sign or "there is the door," was not produced by the respondent. During the hearing counsel for the respondent stated that Allen had informed him that he had torn it up and thrown it away. Allen, however, testified that he never seen it, and did not know whom it was addressed to. He insisted, nevertheless, that it was noth- ing but a "memorandum receipt," and that he suggested Serna sign it to settle the case which, he said, "the Labor Relations Board say we must settle." Book- keeper Pena, who typed the document, was not called as a witness. Foreman Rodriguez, who translated the text of the document into Spanish for Serna, was vague and uncertain in this testimony concerning the nature of its contents, and the Trial Examiner can place no reliance upon his statement that the "letter" only contained an agreement that Allen did not owe Serna any money. Fore- man Watt's testimony as to the document was somewhat more explicit, and sub- stantially corroborated Serna's testimony on the point. Watt testified that Allen, with the "paper" on the desk before him, asked Serna "why this complaint against him," but that all he could recall of the contents was: "I, so-and-so, have no claim against the Laredo Times" Allen's account of Serna's leaving the plant on March 6 is, in substance, as follows. He told the employee that he did not care about his not having signed the "receipt" on the preceding Saturday, but insisted that he go over to the book- keeper and "tell him how much we owe you." In about five minutes Serna came from the back of the plant, with his bicycle, "came barging through and about half knocked the door down ... and went through another one and almost knocked it off " He "hollered" and asked Serna to stop, but the employee declared, 'No, I am going" Rodriguez testified that Serna was just leaving the plant when he came in, that he asked the employee what the matter was, but that Serna only replied, "No," and kept on going. It is plain that the testimony of neither Allen nor Rodriguez provides reason- able support for the respondent's contention that Serna quit his job voluntarily on March 6 The Trial Examiner finds no merit in the contention. On the other hand, the circumstances described in the findings above, which are undisputed by Pena, establish beyond doubt that Serna was given his choice, by Allen through Pena, of signing a release absolving the respondent from respon- sibility under the Act for his previous discharge or of leaving his employment. The Trial Examiner is convinced, and finds, that Serna was, in effect, discharged by the respondent on March 6, because charges had been filed on his behalf by the Union, with respect to his previous discharge on November 27. In summary, the Trial Examiner concludes and finds that Serna was dis- criminatorily discharged„ by the respondent on November 27, 1943, because of his union membership and activity, and on March 6, 1944, because he had filed charges against the respondent under the Act ; thereby discouraging membership in the Union and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act. It is also found that the respondent, by the anti-union remarks of Rodriguez 670417-46-vol 64-77 1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to Serna, as described above, has interfered with, restrained , and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III, above, occurring in connection with the operations of the respondent described in Section I,_above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that the respondent has engaged in unfair labor practices, it will be recommended that the respondent cease and desist there- from, and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the respondent discharged Apolonio Serna on No- vember 27, 1943, and thereafter refused to reinstate him until January 21, 1944, for the reason that he joined or assisted a labor organization and engaged in concerted activities for the purposes of collective bargaining or other mutual aid or protection. It also has been found that the respondent again dis- charged Apolonio Serna on March 6, 1944, because lie filed charges pursuant to the Act. It will therefore be recommended that the respondent offer Apolonio Serna immediate and full reinstatement to his former or substantially equiva- lent position, without prejudice to his seuiotity or other rights and privileges. It will be further reconnnendFd that the respondent nuke whole Apolonio Serna for any loss of pay he may have suffered by reason of the respondent's discrimination against him in the following mmmer: (1) by payment to Apo- lonio Serna of a sum of inonev equal to that which he would normally have earned as wages from November 27, 1943. the date of his first discharge, to January 21, 1944, the date on which he was reinstated, less net earnings (luring said period; and (2) by payment to Apolommo Serna of a sum of money equal to that which lie would normally have earned as uuages during the period from March 6, 1944. to the date of his offer of reinstatement, less his net earn- ing during said period 10 Upon the basis of the foregoing findings of fact, and n1Nm the entire record in the case the undersigned makes the following: CONCLUSIONS or LAW 1. Laredo Typographical Union No 778, affiliated with the International Typo- graphical Union, is a labor organization within the meaning of Section 2 (5) of the Act. 913y "net earnings less expenses such is for transportation room, and board , incurred by an employee in connection with obtaining work and working elsewhere than for the resl'ponlent , which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere See Matter of Crossett Lumber Conipany and United Diotherhood of Carpenters and Joiners of America , Lumber and Saw- mill Workers Union , Loral 25Q0 . 8 N L R B 440 Monies reteiied for work peiformed upon Federal , State . county munxpi . il, oi other work -relief projects shall he considered as^ eainings See Republic Steel Corporation v N L R R, 311 U S 7 '" During the last day of the hearing, an exchange between eonusel indicated that the respondent inight reinstate Seina after the close of the hearing No information has been received by the Trial IAnin nei as to Rbat if any action in this respect has been taken by the i eyionde» t THE LAREDO DAILY TIMES 1203. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in, and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Apolonio Serra, thereby discouraging membership in Laredo Typographical Union No. 778, affiliated with the International Typographical Union, the respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act 4. By discharging and otherwise discriminating against Apolonio Serna be- cause he filed charges under the Act, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (4) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law the under- signed recommends that the respondent , The Laredo Daily Times. Laredo, Texas, its agents , successors , and assigns, shall: 1 Cease and desist from : (a) Discouraging membership in Laredo Typographical Union No. 778, of&lia- ated with the International Typographical Union or in any other labor organiza- tion by discharging , refusing to reinstate , or otherwise discriminating in regard to the hire and tenure and employment or any term or condition of employment of its employees ; (b) Discharging , refusing to reinstate , or otherwise discriminating against any of its employees because they have filed charges or given testimony under the National Labor Relations Act ; (c) In any other manner interfering with, restraining , or coercing its em- ployees in the exercise of the right to self-organization , to form, join , or assist labor organizations , to bargain collectively through representatives of their own choosing , and to engage in concerted activities for the purposes of collective bar- gaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2 Take the following affirmative action which the undersigned finds will effectuate the policies of the Act: (a) Offer to Apolonio Serra immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges; (b) Make whole said Apolonio Serna for any loss of pay he may have suffered by reason of the respondent 's discrimination against him by payment to him of a stun of stoney in the manner set fo r th in Section V entitled "The remedy"; (c) Post immediately in conspicuous places throughout the respondent 's place of business at Laredo , Texas, and maintain for a period of at leas sixty (60) consecutive days from the date of posting notices to its employees stating: (1) that the respondent will not engage in the conduct from which it is recommended to cease and desist in paragraph 1 (a), (b), and ( c) of these recommendations; (2) that the respondent will take the affirmative action set forth in paragraph 2 (a) and ( b) of these recommendations ; and (3 ) that the respondent 's employees are free to become and remain members of Laredo Typographical Union No. 778, affiliated with the international Typographical Union, and that it will not dis- criminate against any employee because of membership in or activity on behalf of that labor organization; 1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Notify the Regional Director for the Sixteenth Region within ten (10) days from the receipt of this Intermediate Report what steps the respondent has taken to comply herewith. It is further recommended that unless on or before ten (10) days from the receipt of this Intermediate Report the respondent notifies said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 3, effective November 26, 1943, any party or counsel for the Board may within fifteen (15) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article, II of said Rules and Regulations, file with the Board, Rochambeau Building, Washington, D. C. an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections), as he relies upon, together with the original and four copies of a brief in support thereof. Immediately upon the filing of such statement of exceptions and/or brief, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing within ten (10) days from the date of the order transferring the case to the Board. W. P. WEBB, Trial Examiner. Dated April 26, 1944. NLRB 577 "APPENDIX A" (9-1-44) NOTICE To ALL EMPLOYEES Pursuant to the Recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : We will not in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Laredo Typographical Union No. 778 or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. We will offer to the employees named below immediate and full reinstate- ment to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. Apolonio Serna All our employees are free to become or remain members of the above-named union or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. Dated-------------------- THE LAREDO DAILY TIMES, Employer. By-------------------------------- (Representative) (Title) THE LAREDO DAILY TIMES 1205 NoTE: Any of the above -named employees presently serving in the armed forces of the United States will be offered full reinstatement upon application in ac- cordance with the Selective Service Act after discharge from the armed forces. This notice must remain posted for 60 days from the date hereof, and must not be altered , defaced, or covered by any other material.