Susquehanna Corp.

National Labor Relations Board - Board Decisions

Apr 23, 1970

182 N.L.R.B. 89 (N.L.R.B. 1970)

AMERICAN GYPSUM COMPANY 89
American Gypsum Company, Division of the Susquehanna
Corporation and Frank Sisneros : Case 28-CA-1802
April 23_1970,
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND JENKINS
On April 25, 1969, Trial Examiner Anne F. Schlezinger
issued her Decision in the above-entitled' proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take
certain affirmative, action, as set forth in the attached
Trial Examiner's' Decision. Thereafter, the Respondent
filed exceptions to the Trial Examiner's Decision, and
the General Counsel and Respondent filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations'Act, as amended, the National
Labor Relations Board has delegated its powers in con-
nection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Exam-
iner made at the hearing and finds that no prejudicial
error was committed. The rulings are hereby affirmed.
The Board has considered the Trial Examiner's Decision,
the exceptions and briefs, and the entire record in this
case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner only to the
extent consistent herein.
An economic strike began at Respondent's plant on
May 4, 1967. Sisneros, the Charging Party, and a
Respondent employee since 1962, participated in the
strike. By letter of November 21, 1967, the Union (United
Cement, Lime and Gypsum Workers International
Union, Local No. 419, AFL-CIO) made an unconditional
application for reinstatement on behalf of all the strikers.
Respondent did not reply The strike ended in December
1967, when the Union was decertified. The Union again
requested reinstatement of all strikers by letter of Febru-
ary 17, 1968. Again receiving no answer, the Union
filed a charge in Case 28-CA-1664 on March 4, 1968.
In April 1968, Hebert, formerly quality control super-
intendent, became plant manager. He began to hire
strikers as they appeared at the plant. This, as he
testified, caused an "uproar." Hebert then called upon
the Board's Regional Officer for assistance. Sanchez,
a company attorney, on the advice of Maydanis, a
Board field attorney, sent a preferential hiring list to
Respondent, with a letter advising strict adherence to
this list, and no new hires until the list was exhausted.
On June 26, 1968, Hebert sent letters to all those
on the list, asking whether they were interested in
employment as new employees. Sisneros, temporarily
employed at the time, received such a letter and returned
it to Respondent, indicating that he was interested in
a job. He was called for an interview on August 5,
1968.
Hebert had instituted a policy, not alleged to be
discriminatory, of having all new employees take a
physical examination, and was applying this requirement
to.the returning strikers. Therefore, when Sisneros was
interviewed on August 5, he was told he had to take
a physical examination that, day, as the doctor was
available.
Sisneros reported to the company physician as request-
ed, and was found to have a hernia. He was informed
that he, could not possibly be approved for employment
since his work • involved manual labor. On August 7,
1968, Sisneros called the plant clerk, Hup, who verified
that Sisneros could not be hired because of, the hernia
and that it should be corrected.
Without notifying Respondent of his intentions, Sisne-
ros underwent a hernia operation at the Veterans Admin-
istration Hospital on August 23, 1968, the earliest date
available. He returned periodically for, checkups and
was given his final release on September 29, 19,68. He
immediately went to Respondent to seek employment.
Between the time that Sisneros had been refused
employment by Respondent on August 5, 1968, and
the time he requested reemployment on September 29,
1968, Respondent had exhausted the preferential hiring
list by hiring the last employee to be contacted on
September 6, 1968, and had entered into a settlement
agreement with the Union, approved by the Regional
Director on September 12, 1968. By the terms of the
settlement agreement, the Union withdrew the 8(a)(3)
charges filed in Case 28-CA-1664.
When Sisneros arrived at the plant on September
29, he showed his hospital release to Davis, head fore-
man, and asked about getting his job back. Davis said
he could not answer until he checked with Hebert,
who was not there at the time.
Upon exhaustion of the preferential hiring list, Hebert
had made his own list of employees who desired work.
At the time Sisneros was released from the hospital,
this list contained two names, Moya and Woods. Moya,
a returning striker, was ahead of Sisneros on the prefer-
ential hiring list, but had been unable to accept employ-
ment when offered because he was then employed.
He indicated he would work for Respondent as soon
as he could leave his job, and Respondent promised
him a job when a vacancy arose. Pursuant to this
promise, Moya was hired on November 12, 1968. Woods
was employed at the time Sisneros was rejected, but
was subsequently laid off on August 10, 1968, to make
room for a returning striker. He was promised a job
as soon as an opening occurred, and as promised was
rehired on November 18, 1968.
Sisneros received no offer of employment from
Respondent after his operation, and on November 16,
1968, visited the plant again. Hebert informed Sisneros
that work was slow and that he would not be able
to hire him until after the first of the year.
The Trial Examiner found that Respondent, by its
actions, violated Section 8(a)(1) and (3) of the Act by
failing to reinstate Sisneros on and after September
29, 1968, ahead of Moya and Woods. We disagree.
Respondent initially refused to honor the Union's
request for reinstatement of strikers, which led to the
filing of the charge in Case 28-CA-1664. Thereafter,
182 NLRB No. 17
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's new plant manager sought assistance from
the Board's Regional Office in an attempt to effect
a settlement of the case Pursuant thereto, a preferential
hiring list was forwarded to the plant manager, who
followed it to the letter Respondent was informed that
each person on the list was to be called in order,
and that anyone refusing employment when offered was
to be stricken from the list No new hires were to
be made until the preferential list was completely
exhausted
The list was exhausted by September 6, 1968, and
a settlement agreement , withdrawing the charge in Case
28-CA-1664, was approved by the Regional Director
on September 12, 1968 At this time, as well as at
the time Respondent had promised to reinstate Moya
and Woods, neither the parties nor the Regional Director
knew that Sisneros had undergone an operation to correct
his hernia , nor did they know that he intended to return
to his former position
In these circumstances, we believe that Respondent
has met its obligations , and has not violated the Act
Accordingly, we shall dismiss the complaint in its entire-
ty,
ORDER
Upon the entire record in this case and from my
observation of the witnesses, I make the following
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The Respondent, a corporation duly organized under,
and existing by virtue of, the laws of the State of
Delaware, maintains its principal office and place of
business at Albuquerque, New Mexico It is engaged
at its Albuquerque place of business, the only facility
involved herein, in the manufacture and distribution
of gypsum wallboard During the last calendar year,
the Respondent, in the course and conduct of its business
operations, sold and shipped from its Albuquerque place
of business goods and materials valued in excess of
$50,000 directly to customers located outside the State
of New Mexico During the same period, the Respondent
purchased, transferred, and had delivered to its Albu-
querque place of business goods and materials valued
in excess of $50,000 directly from States other than
the State of New Mexico The Respondent in its answer
admits, and I find, that it is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act
It is hereby ordered that the complaint in the instant
case be, and the same hereby is, dismissed in its entirety
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ANNE F SCHLEZINGER, Trial Examiner Upon a
charge filed on November 25, 1968, by Frank Sisneros,
referred to herein as Sisneros or the Charging Party,
the General Counsel, by the Regional Director for Region
28 (Albuquerque, New Mexico), issued a complaint dated
January 8, 1969, alleging that American Gypsum Compa-
ny, Division of the Susquehanna Corporation, herein
called the Respondent, had engaged in and was engaging
in unfair labor practices in violation of Section 8(a)(1)
and (3) of the National Labor Relations Act, as amended
In its answer, duly filed, the Respondent admits some
of the allegations set forth in the complaint, but denies
that it has committed any unfair labor practices
Pursuant to due noticed a hearing was held before
me at Albuquerque, New Mexico, on March 4, 1969
All parties appeared at the hearing and were afforded
full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce relevant evidence
The Respondent's motions to dismiss the complaint made
at the hearing, on which ruling was reserved, are hereby
denied on the basis of the findings set forth hereinbelow
Subsequent to the hearing, the General Counsel and
the Respondent filed briefs which have been fully consid-
ered '
' The motion to correct transcript appended to the General Counsel s
brief to which there is no opposition is hereby granted
II THE LABOR ORGANIZATION INVOLVED
The Respondent in its answer admits, and I find,
that United Cement , Lime and Gypsum Workers Interna-
tional Union , Local No 419, AFL-CIO, referred to
herein as the Union, is a labor organization within
the meaning of Section 2(5) of the Act
III THE UNFAIR LABOR PRACTICES
The only issue in this case is whether the Respondent
unlawfully failed and refused to reinstate Sisneros fol-
lowing his participation in an economic strike
The facts are for the most part undisputed They
show that Sisneros had been continuously employed
by the Respondent from October 28, 1962, until he
went out on an economic strike called by the Union
on May 4, 1967 As the Respondent conceded at the
hearing, "We don't contend the strike was unlawful
Our position is that because of the strike he [Sisneros]
retained the status of an employee under the Act "
The strike ended upon the Union's decertification in
December 1967 Prior thereto, the Union, on November
21, sent a letter to the Respondent making an uncondi-
tional application on behalf of all the strikers "for
reemployment in any position that is presently available
or will be available at any future time " On February
12, 1968, the Union sent the Respondent another letter
requesting reemployment of all the strikers Williams,
president of the Union, testified that the letters brought
no results, and that rehiring of strikers began after
the filing of a charge 2
4 Case 28-CA-1664 arising from this charge was settled prior to
AMERICAN GYPSUM COMPANY 91
,,Hebert, who had been hired by the Respondent in
August 1967 as quality control superintendent, became
plant manager early in April 1968. He testified that
he knew, when he became manager, that the strikers
had asked for reinstatement; that he was unfamiliar
with the action he should take in this situation; and
that as manager he hired about 10 of the strikers "as
the positions opened, and as they walked into the plant"
without regard to factors such as seniority, which caused
"a little bit of an uproar." Hebert called the Board's
Regional Office for assistance in the matter., Thereafter,
a preferential hiring list was prepared by Sanchez, a
company attorney, and Maydanis, an attorney in the
Board's Regional Office. Sanchez sent the list to the
Respondent with a covering letter dated June 24, 1968,
in which he advised the Respondent, to adhere strictly
to the list, and to hire no new employees until the
list was exhausted. The strikers were classified for rehire
purposes as skilled,. semi skilled, and unskilled.
Hebert sent letters dated June 26, 1968, to those
on the preferential hiring list asking each addressee
to indicate whether he was interested in employment
as " a new employee. -Sisneros received one of these
letters, returned it indicating that he was interested,'
and was called in for an interview on August 5. He
made out the application given him by Hup, the plant
clerk, and was told he had to take a physical examination.
He had been given such an examination when he was
employed by the Respondent in 1962, and Hebert was
requiring physical examinations for the returning strikers
Hebert testified that he intended on August 5 to hire
Sisneros, that Hup was preparing, the papers for this
purpose, and that Sisneros would have been put to
work subject to a later, physical if Dr. Dudley had
been unavailable at the time. Dr. Dudley was available,
however, so Sisneros was sent to the clinic for examina-
tion. The doctor found Sisneros had a right inguinal
hernia and, as Sisneros' work involved manual labor,
the doctor rejected him for employment and so indicated
on the form sent to the Respondent. As Sisneros testified,
the doctor said he could 'not release him for a job
until the hernia was "fixed,'' and when he later called
the plant, Hup also said he could not be hired because
of the hernia that had to be "fixed." Dr. Dudley testified
that such hernias are fairly common and that most
employers would take a man back with a corrected
hernia after 4 to 6 weeks.'
Sisneros under'went a hernia operation at the Veterans
Administration Hospital on August 23. He had a final
checkup and was given a release by the hospital on
September 29, 1968. He went directly to the Respondent,
showed the hospital release to Davis, head foreman,
and asked about getting his job back. Davis said he
could not answer 'until he checked with Hebert, who
was not there. Having heard nothing from the Respond-
ent, Sisneros went to the plant again on November
issuance of a complaint Some strikers , including Williams , were reinstat-
ed with backpay from the dates of their individual applications
8 Sisneros was working at the time on a temporary job that terminated
on January 29, 1969
16, saw Hebert this time, and asked about the possibility
of rehire. Hebert said that work was slow and he would
not be able to hire anyone probably until after the
first of the year.
Hebert testified that he understood hernias can be
corrected; that nevertheless, when the doctor reported
that Sisneros had a hernia, he no longer considered
Sisneros a returning striker; and that he removed Sisne-
ros' name from the preferential hiring list as it was
his understanding-no one having told him otherwise-
that if anyone on the list did not accept a job, whatever
the reason, his name was to be removed.' ,
After Hebert had offered a job to all those' on the
preferential hiring list, he prepared a list of his own
containing the names of men who had been hired as
strike replacements and then laid off to make room
for returning strikers. Hebert had promised, when he
laid off these men, that he would, rehire them if possible
after the preferential hiring list was exhausted. Hebert's
list also contained the, name of Moya, a striker who
had refused reinstatement when offered about the end
of July or the first of August, but told Hebert he, was
interested in returning when he could leave his current
job; and the name of Woods who, as Hebert testified,
was laid off on August 10 to make room for a returning
striker "for only one 'reason and that is because he
was hired .. after the Union had applied for positions."
Hebert had promised to put both Moya and Woods
on his list, which he described as "more of a gentlemen's
agreement."
A list placed in evidence, which represents part of
the list Hebert prepared, contains six names in the
following sequence: Smith, Miranda, Moya, Woods,
Sisneros, and Krause. Miranda and Woods are designat-
ed on the list as "Non-Union" and the other four
as ",Union." Hebert explained that, although it did
not affect his choice of men for rehire, he designated
as "Non-Union" those who worked during the strike,
and as "Union" those who went on strike and were
named on the preferential hiring list.
Hebert testified that Smith, shown on his list with
"Date of Hire" as September 6, 1968, was the -last
man on the preferential hiring list, because of a delay
in locating him, and that he, Hebert, prepared his list
right after Smith was hired. His list also shows the
"Date of Hire" for Miranda, Moya, and Woodt' as
September 19 and November 12, and 18, respectively.
Thus Moya and Woods, who like Sisneros were ill
the semiskilled category, were hired ' after Sisneros
reported to the Respondent that his hernia had been
corrected, and more than 3 months after Moya had
declined reinstatement and Woods had been laid off.
Hebert testified that he was aware that Sisneros reapplied
for his job, "I think it was in October or November,"
Some employees of the Respondent apparently retained their employ-
ee status for 'considerable periods after sustaining a physical injury
While Hebert testified that "As plant manager I have laid off
men for not being physically able to perform their, duties," he also
testified about an employee who broke his leg not on the job, was
retained on the employment record for about 3 months, and was, expected
back on his job in a few weeks ' ,
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but "if there was ah opening it was assigned to another
man who I • felt was= ahead of Mr. Sisneros on the
hiring list." Hebert explained that, while Moya was
hired after Sisneros notified the Respondent of the hospi-
tal clearance, Moya, ','was ahead of Mr. Sisneros on
the hiring list" because Moya had been interviewed
and the promise made to him before Sisneros so notified
the Respondent. Hebert also explained that Woods was
given precedence over Sisneros because Woods had
been "perturbed" about his layoff, and Hebert had
promised to rehire him for the first opening after complet-
ing the preferential -hiring list. Hebert also testified that
neither he nor any other management 'representative
told Sisneros he had' been terminated, that he 'would
hire Sisneros if there was,, a position open for him,
and that he thinks `"'at the time, he was told the first
opening that occurred, he would be hired. This was
after Mr. Woods." He stated further, however, that:
"As for positions that 'are vacant in the plant; yes,
there are positions vacant. But about the first of February
we had a; management meeting . . and we 'had a
problem • on, acquiring' help. 1 . The suggestion was
made that we concentrate on going to twelve hour
shifts and operate the plant on, a five day week. .
This would eliminate hiring any more help . . My
policy right now, if there is' a man at the gate-I would
hire him or -a man in my office, I would hire him
. Then my theory would be just to call the unemploy-
ment office.. - . '
The General Counsel contends that, as 'a result of
the Union's collective requests and Sisneros' individual'
requests, Sisneros made known to the Respondent his
continuing availability as- a' returning striker; that this
status continued for a reasonable length of time after
he was found on August 5 to have a hernia; that the
Respondent was apprised that Sisneros' hernia had been
corrected on September 29,•which was within a-reasson-
able length of time; that the Respondent nevertheless
removed his name from 'the preferential 'hiring list and
placed him on a,rehire list which included names other
than those `of returning strikers; and that by placing
Sisneros' name below those of Moya and Woods and
hiring Moya and Woods and not Sisneros, the Respond-
ent unlawfully discriminated against Sisneros on and
after September 29, 1968.
The Respondent argues in its brief that the Respondent
had a 'legitimate and substantial business reason for
not hiring Sisneros when 'it was learned that he had
a hernia; that there was no discrimination against Sisne-
ros "inherently destructive of employee rights" because
another striker was reinstated when Sisneros was found
ineligible in August, and in November also it was another
striker, Moya, who was hired rather than Sisneros;
and that the General Counsel has failed to prove any
unlawful- motive in the failure to reinstate or rehire
Sisneros.
Concluding' Findings'
It is admitted by the Respondent that Sisneros on
August 5 had the status of a returning economic striker.
As the General Counsel contends, the collective requests
of the Union and the individual requests by Sisneros
were a clear indication'to the Respondent that Sisneros
was making a continuing -'request for reemployment.'
The Respondent, in,fact, was in the process on August
5 of rehiring Sisneros when the doctor found that he
had a hernia and rejected him for that reason. The
Respondent argues that its failure to put Sisneros back
to work on August 5 was for " a legitimate and substantial
business reason . . . i.e., Sisneros had 'a hernia." The
General. Counsel does not allege , however, that the
Respondent's failure to rehire Sisneros on August 5
was discriminatory., The General Counsel does contend
that Sisneros' status as a returning striker was not
forfeited because of his unavailability for medical rea-
sons on August, 5,, particularly as the Respondent knew
that a hernia was correctable,, and'Sisneros took prompt
action, in having; it, corrected. I find that Herbert was
not warranted in, these circumstances in terminating
Sisneros' status as a returning striker on August 5.6
The General, Counsel contends -further that Sisneros'
status as a returning' striker continued for a reasonable
period after August 5, and that his availability for work
on September 29, immediately, ; made known to the
Respondent, was within such a, reasonable period. The
Respondent in its brief challenges this contention as
a "vague theory" that raises many questions such as
whether 'a reasonable , period might. extend for years
and which medical problems would permanently' disquali-
fy an employee for a job. There is no issue in this
case of status being retained for years, however, and
that the hernia did not permanently disqualify Sisneros
is apparent from the facts, among others, that Hebert
was'-admittedly aware that a hernia is correctable, and
that the doctor testified that a man is generally reemploy-
able 4 to 6 weeks after a hernia operation.'
Moreover, the period of less than 2 months that
Sisneros was unavailable for work - considerably short-
er than the period, that the employee who broke his
leg was retained on the employment rolls 'was in the
circumstances of this case a reasonable period. In the
Fleetwood' Trailer case,' an employer was held to have
violated the Act by failing to'reinstate economic strikers
who had applied for reinstatement at a time when no
jobs were available, but for whom jobs,becam'e available
some `2 months later. The Supreme Court in that case
explicitly rejected the argument that reinstatement rights
are determined at the time of initial application, and
stated that "the status of the striker, as an employee
continues until he has obtained `other regular and sub-,
stantially, equivalent employment.' "There is no conten-,
',See American Machinery Corporation, 174 NLRB No -25; The
Laidlan Corporation, 171 NLRB No 175
See Forster Manufacturing Company, Inc , 175 NLRB No 29
1 Additional questions raised by the Respondent's brief which I find
it unnecessary in this case to answer, include "what if Sisneros waited
a year before consenting to an operation; what if Sisneros happened
to be a Christian Scientist; how much medical knowledge, is charged
to an employer; to what extent can a company rely on the judgement
of a medical doctor; etc "
8 NL R B v Fleetwood Trailer Co , 389 U S '375; see also The
Laidlaw Corporation, 171 NLRB No 175
AMERICAN GYPSUM COMPANY; 93'
tion in the instant case that Sisneros has obtained other
regular and substantially equivalent employment, He
therefore had a right of reinstatement as a, returning
striker, and "This right of reinstatement continued to
exist so long as [he] had not abandoned the employ
of Respondent for other substantial and equivalent
employment. Moreover, having signified- [his] intent to
return by [his] unconditional application for reinstate-
ment . . . it was incumbent on Respondent to seek
[him] out as positions were vacated. "I
Sisneros was therefore entitled to consideration for
employment as a returning striker on and after September
29 As such, he should have been given priority for
available jobs over a striker who had rejected reinstate-
ment when offered and an employee who had been
newly hired after the Union's unconditional request
for reemployment of all strikers. Hebert was therefore
not warranted, after receiving notice that Sisneros' hernia
had been corrected and that he desired reemployment,
in disregarding Sisneros' status as a returning striker,
and in giving Moya and Woods precedence over Sisneros
for available jobs on the basis of the "gentlemen's
agreement."
The Supreme Court held in the Fleetwood case, supra,
regarding the reinstatement rights of economic strikers:
.. unless the employer who refuses to reinstate
strikers can show that his action was due to "legiti-
mate and substantial business justifications," he
is guilty of an unfair labor practice. NLRB v.
Great Dane Trailers, 388 U.S 26, 14 (1967). The
burden of proving justification is on the employer.
Ibid. It is the primary responsibility of the Board
and not of the courts "to strike the proper balance
between the asserted business justifications and
the invasion of employee rights in light of the
Act and its policy."'Ibid.
I find that the Respondent has failed in this case to
meet the burden of proving justification imposed rby
the Supreme Court.10 The Respondent's assertions that
Sisneros forfeited ' his " status as a returning economic
striker when it was found that he had a hernia, that
Hebert was justified in removing from the preferential
hiring list the name of any striker who did not accept
reemployment when offered as no one had advised him
otherwise, and that Moya and Woods were entitled
to preference over Sisneros on the basis of the "gentle-
men's agreement ," are erroneous views as to Sisneros'
rights, and the Board holds that "The Respondent's,
good faith but erroneous view of the law in this regard
would not be a defense."" Nor does the fact that
Hebert followed the preferential hiring list and reinstated
all the other strikers constitute a defense as the Board
holds in such cases, "It is immaterial that no showing
of discriminatory intent on the part of the Respondent
was made. 1112
e The Laidlaw Corporation, supra
1° See Lamb-Weston, Inc , 170 NLRB No 186
Pioneer Flour Mills, 174NLRBNo 174
" N L R.B v Fleetwood Trailer Co , supra , Forster Manufacturing
Company, Inc , supra, Lamb-Weston, Inc, supra ,
In conclusion, I find, on the basis of the foregoing
and the entire record, that the Respondent, although
justified in not putting Sisneros, to work on August
5 because of the hernia, was not justified in terminating
his status as an economic striker seeking reemployment.
I find further that Sisneros' status continued for a reason-
able time, that his hospital discharge on September
29 was within a reasonable period of less than 2 months,
that the Respondent failed and refused to reemploy
Sisneros as vacancies arose on or after September 29,
and that the Respondent has failed to meet the burden
imposed by the Supreme Court of proving justification
therefor. The Respondent's failure and refusal to reemr
ploy Sisneros on and after September 29 was "in effect
a `delayed' discrimination and its effect was to discourage
employees from exercising their rights to organize and
to strike as guaranteed by Sections 7 and 13 of the
Act."13 Accordingly, I find that the Respondent, by
failing and refusing to offer reemployment to Sisneros
when jobs became available on and after September
29, 1968, discriminated with respect to the hire, tenure,
and terms and conditions of employment of Sisneros,
thereby discouraging membership in or, activities on
behalf of the Union, and has thereby engaged in and
is engaging in unfair labor practices within the meaning
of Section 8(a)(3) of the Act I find further, that the
Respondent, by the foregoing conduct, has interfered.
with, restrained, and, coerced its employees in the exer-
cise of their Section 7 rights, and has thereby engaged
in and is engaging in unfair labor,practices within the
meaning of Section 8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth, in section
III, above, occurring in connection with its operations
set forth 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
Having found that the Respondent , has engaged in
certain unfair labor practices, I shall recommend that
it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
As I have found that the Respondent violated Section
8(a)(1) and (3) of, the Act by failing and refusing to
offer reemployment to Frank Sisneros on and after
September 29, 1968, I shall recommend that the Respond-
ent offer Sisneros immediate and full reinstatement to
his former or substantially equivalent employment, with-
out prejudice to his seniority or other rights and privi-
leges, and make him whole for any loss of earnings
he may have suffered by reason of the discrimination
11 N.L R B v Fleetwood Trailer Co supra, Pioneer Flour Mills,
supra ,
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
against him from September 29, 1968, the date of the
discriminatory failure and refusal to reemploy him, to
the date of the Respondent ' s offer of reinstatement
Loss of pay shall be computed as prescribed in F
W Woolworth CornpanN 90 NLRB 289, and interest
on such backpay shall be computed at 6 percent per
annum in accordance with Isis Plumbing & Heating
Co , 138 NLRB 716 The determination for backpay
purposes of the date when an opening arose for which
Sisneros would have been medically examined and found
qualified, absent the unlawful failure and refusal to
reemploy him, is hereby deferred to the compliance
stage of this proceeding
Upon the basis of the above findings of fact and
the entire record, I make the following
CONCI USIONS OF LAW
I The Respondent is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act
2 The Union is a labor organization within the mean
mg of Section 2(5) of the Act
3 By failing and refusing on and after September
29, 1968, to offer reemployment to Frank Sisneros in
his former or substantially equivalent employment, the
Respondent has violated Section 8(a)(3) and (1) of the
Act
4 The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of
the Act
[Recommended Order omitted from publication ]