Congreso De Uniones Industriales De Puerto Rico, Ind.

National Labor Relations Board - Board Decisions

Mar 17, 1967

163 N.L.R.B. 448 (N.L.R.B. 1967)

448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Kroger Co., its officers , agents , successors, and
assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Amalgamated
Meat Cutters and Butcher Workmen of North America,
Local Union No. 430, AFL-CIO, as the exclusive
bargaining representative of its employees by refusing to.
furnish to the Union or its agents information with respect
to Respondent's O.R. program relied upon by the
Respondent in determining anticipated workloads in the
meat departments of its Dayton division and in allocating
employee working hours to those departments , and the
data upon which the O.R. program is based.
(b) In any like or related manner interfering with,
restraining , or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Furnish to the Union , upon request, the information
and data described in paragraph 1(a) above.
(b) Post at its stores in the Dayton , Ohio , division,
copies of the attached notice marked "Appendix."ts
Copies of said notice, to be furnished by the Regional
Director for Region 9, after being duly signed by the
representative shall be posted by the Respondent,
immediately upon receipt thereof , and be maintained by it
for 60 consecutive days thereafter , in conspicuous places,
including all places where notices to employees are
customarily posted . Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of this Order, what steps have
been taken to comply herewith."'
the exercise of their rights under the law to form, join,
or assist any labor organization , or to bargain
collectively through representatives of their choosing,
or to engage in concerted activities for their mutual
aid or protection.
WE WILL , upon request , furnish to Amalgamated
Meat Cutters and Butcher Workmen of North
America, Local Union No. 430, AFL-CIO, or its
agents, information concerning the Company's O.R.
program.
THE KROGER CO.
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or complaince with its provisions, they may communicate
directly with the Board's Rgional Office, Room 2407,
Federal Office Building , 550 Main Street, Cincinnati, Ohio
45202, Telephone 684-3686.
Congreso De Uniones Industriales De Puerto
Rico , Ind. and Gayley Rico Company
Congreso De Uniones Industriales De Puerto
Rico , Ind. and Bayamon Transport Service.
Cases 24-CB-570 and 24-CB-571.
''' In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice. In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order."
'" In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read: "Notify said
Regional Director, in writing , within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Rcommended Order of a Trial Examiner
of the National Labor Relations Board , and in order to
effectuate the policies of the National Labor Relations
Act, as amended, we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with
Amalgamated Meat Cutters and Butcher Workmen of
North America, Local Union No. 430, AFL-CIO, as
the exclusive bargaining representative of our
employees by refusing to furnish to it or its agents
information with respect to the Company's O.R.
program used by the Company in determining
anticipated workloads in its Dayton division meat
departments and in allocating employee work hours to
those departments , and also the data upon which the
O.R. program is based.
We will not in any like or related manner
interfere with , restrain, or coerce our employees in
March 17,1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On November 30, 1966, Trial Examiner John G.
Gregg issued his Decision in the above-entitled
proceeding, finding that the Respondent 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 the attached Trial Examiner's Decision. He
also found that Respondent had not engaged in
certain other alleged unfair labor practices, and
recommended dismissal of such allegations.
Thereafter, the General Counsel filed exceptions to
the Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner 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 brief, and the entire record in the
case, and hereby adopts the findings, conclusions,
163 NLRB No. 60
CONGRESO DE UNIONES INDUSTRIALES DE PUERTO RICO 449
and recommendations of the Trial Examiner , except plant in violation of Section 8(b)(1)(A ) of the National
as modified below .' Labor Relations Act. The Respondent denies the
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Congreso De
Uniones Industriales De Puerto Rico, Ind., its
officers , agents, and representatives , shall take the
action set forth in the Trial Examiner's
Recommended Order, as so modified.
' In the absence of any exception thereto, we adopt pro forma
the Trial Examiner's findings and conclusions that in 11
instances, as alleged in the complaint, the Respondent violated
Section 8(b)(1)(A) of the Act, including acts of violence , threats of
violence, and damage to property The General Counsel excepts
to the Trial Examiner 's finding that the evidence did not
sufficiently establish a 12th allegation that Respondent stoned
employee Cintron' s house, and his consequent recommendation
that this additional allegation of Section 8(b)(1)(A) conduct be
dismissed. In so finding , the Trial Examiner relied , at least in
part , on his "observation of the demeanor of the witnesses."
Under the Board 's established policy not to overrule a Trial
Examiner's credibility findings unless a clear preponderance of
all the relevant evidence convinces us that they were incorrect,
we find insufficient basis for disturbing the Trial Examiner's
credibility findings on this issue Standard Dry Wall Products,
Inc, 91 NLRB 544, enfd. 188 F.2d 362 (C A. 3). Moreover, such
finding of an additional damage to property violation of Section
8(b)(1)(A), urged by the General Counsel, would appear to be
somewhat cumulative , and in any event is covered by the broad
order herein
The General Counsel excepts to the Trial Examiner's failure to
order that the notice be posted in both English and Spanish, in
view of the widespread usage of Spanish in Puerto Rico , and the
Board 's consequent recognition of the necessity for posting
notices in both Spanish and English in Puerto Rico We find merit
in this exception , and hereby amend Section 2(a) of the
Recommended Order accordingly See Call, Burnup , and Sims,
Inc, 159 NLRB 1661; Puritana Manufacturing Corporation, 159
NLRB 518 The General Counsel also excepts to an alleged failure
of the Trial Examiner to recommend a notice expressed in simple
and readily understandable language, in conformity with the
Board's Decision in Bilyeu Motor Corp, 161 NLRB 982 As the
notice appears to be expressed in such language with respect to
the violations found in this case, and as the General Counsel has
failed to specify in what respects the notice should be modified,
we find no merit in this exception.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN G. GREGG, Trial Examiner : Upon charges filed on
May 11 , 1966 , by Gayley Rico Company, and May 24,1966,
by Bayamon Transport Service, the Regional Director for
Region 24 issued an order consolidating these cases for
hearing and issued a consolidated complaint dated July 29,
1966 , against Congreso De Uniones Industriales De Puerto
Rico, Ind., hereinafter referred to as the Respondent. In
substance the complaint alleges that during the course of a
strike , Respondent by its officers and agents engaged in,
or encouraged and incited strikers and picketers to engage
in, acts of restraint and coercion against employees and
other persons who were desirous of entering Gayley's
commission of any unfair labor practices.
Pursuant to appropriate notice, hearing was held before
me in Santurce , Puerto Rico, on September 12,13, and 14,
1966 . All parties were represented and participated in the
hearing and were afforded the right to present evidence, to
examine and cross-examine witnesses , to offer oral
arguments , and to file briefs . Briefs were filed by the
General Counsel , the Charging Parties, and the
Respondent , and have been carefully considered.
Upon the entire record in this case and from my
observation of the demeanor of the witnesses as they
testified , the following findings of fact , conclusions of law,
and recommendations are made:
1. THE BUSINESS OF THE EMPLOYERS
Gayley Rico Company is a corporation duly organized
under , and existing by virtue of, the laws of the State of
Virginia , maintains its principal office, plant , and place of
business at Barrio Palmas, Catano, Puerto Rico, and is
engaged in the manufacture , sale, and distribution of
elastic fabric and related products . During the past year,
Gayley , in the course of its business operations purchased,
transferred , and delivered to its Catano plant , goods and
materials valued in excess of $50,000 of which goods and
materials valued in excess of $50,000 were transported to
said plant directly from States of the United States other
than the Commonwealth of Puerto Rico. During the past
year Gayley Rico Company in the course of its business
operations manufactured , sold, and distributed at said
plant, products valued in excess of $500,000 , of which
products valued in excess of $50,000 were shipped from
said plant directly to States of the United States other than
the Commonwealth of Puerto Rico. Gayley Rico Company
is, and at all times material herein has been , engaged in
commerce within the meaning of Section 2 (6) and (7) of the
Act.
Bayamon Transport Service is a corporation duly
organized under and existing by reason of the laws of the
Commonwealth of Puerto Rico. During the past year in the
course of its trucking operations within the
Commonwealth of Puerto Rico, Bayamon Transport
derived gross income in excess of $70,000 from said
operations which were performed for various enterprises
including Gayley Rico Company, Frozen Fruits Food
Concentrates , Inc., Toa Canning Company, Coca Cola
Bottling Co . of Puerto Rico, and Alcoa International, Inc.,
each of which annually produces , sells, and ships goods
valued in excess of $50,000 directly out of the
Commonwealth of Puerto Rico. Bayamon Transport
Service is and at all times material herein has been
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Congreso De Uniones Industriales De Puerto Rico, Inc.,
is a labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Interference , Restraint , and Coercion
The complaint , as amended at the hearing, alleges that
during the course of the strike and picketing activities, the
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent Union 's officers and agents engaged in, or
encouraged and incited the strikers and picketers under
their direction and control to engage in, acts of restraint
and coercion against employees and other persons who
were desirous of entering the plant of Gayley to perform
services therein . The complaint specifies 12 acts, alleging
that by each of the acts , and their totality, the Respondent
Union did intimidate and coerce employees in the exercise
of their rights under Section 7 of the Act to refrain from
joining or supporting the Respondent Union's strike
activities against the Gayley Rico Company.
Gayley employee Jesus Perez Cintron testified that
when leaving his work at the plant at 6 o'clock on May 10,
1966, which is the date the strike started, he was
physically accosted , held, and shaken by Isabelo Matos,
one of a group of picketing employees , some of whom held
boards, and was threatened with kicking and having his
face split open . He testified that while this took place,
Union President Figueroa and Franklin Caban Ortiz were
10 feet away. This testimony was corroborated by
testimony of Victor Manuel Nieves and was not denied; I
credit the account given by Cintron . I find that the alleged
misconduct did in fact take place, and that it took place in
the presence of Union President Figueroa . The remaining
question is whether or not Figueroa took steps reasonably
calculated effectively to stop such misconduct . While the
testimony indicates that Franklin Caban, who was with
Figueroa, did in fact subsequently intervene to prevent
further violence, there was no intervention by Figueroa,
and no action was taken by Figueroa reasonably calculated
to effectively stop the misconduct , nor to disavow or
disclaim it . Accordingly, I find this to be a violation of
Section 8(b)(1)(A) of the Act. Teamsters Local 783,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen , and Helpers of America (Coca-Cola
Bottling Company ofLouisville), 160 NLRB 1776.
Cintron testified further that on or about Sunday,
May 15, his house was stoned and its windows broken.
Rosado, an employee of Gayley, testified that around
May 11, 1966 , one "Chiqui " asked him if he knew where
Cintron' s house was but that he did not know . Rosado
testified further that the next day another striker Rufino
Benitez, told "Chiqui" that he knew where Cintron lived
and that Rufino Rosado and another set out to find the
house. Benitez, an employee of Gayley, testified that
during the strike, about a week after it started , while he,
Benitez, was picketing at the Gayley warehouse at night,
Rosado came to him and according to Benitez "when he
(Rosado) arrived I asked him if he was leaving and he said
yes, because he was running away. I asked why, and he
told me: because Chiqui , Pedro Perez and he, Rosado, had
gone to Jesus Perez Cintron 's home and they had done a
job that Mr . Arturo had told them to do." Benitez, while
testifying , physically gestured to Arturo Figueroa who was
present during the testimony. I am not persuaded on the
basis of my observation of the demeanor of the witnesses
as they testified and on the basis of the testimony of record
that Montesino, Rosado, and one Perez did in fact stone
Cintron ' s house, breaking windows and threatening its
occupants . Accordingly, I find that that part of the
complaint which alleges the stoning of Cintron's house by
Montesino and others has not been established by
substantial evidence of record and accordingly will
recommend that it be dismissed.
The General Counsel alleged that during the course of
the Respondent Union's strike and picketing activities the
Union ' s agents and officers in charge permitted some of
the strikers under their control and direction to carry clubs
and sticks which they brandished and used in a
threatening manner towards employees and other persons
who approached the entrance to said plant for the purpose
of entering therein. Considerable credible testimony was
adduced on the record by witnesses establishing this as a
fact . Ruben Koch , plant manager for Gayley, and Ed Stall,
Jr., testified , and I credit their testimony, that strikers
carried and brandished sticks. I find , therefore , based on
credible testimony on the record as a whole that the
pickets and strikers carried sticks and clubs in a manner
designed to intimidate and threaten employees of Gayley
in the exercise of rights protected by Section 7 of the Act,
with the knowledge of the union agents in charge of strike
and picketing activities and without attempt on their part
effectively to stop , or to disavow or disclaim , this conduct,
all in violation of Section 8(b)(1)(A) of the Act.
Gayley Foreman Pedrosa testified that on or about
May 11 , 1966, he was stopped by Merced in the presence
of other strikers including Caban, that Merced threatened
to beat him up and said that he and the strikers would
break Pedrosa 's ribs, and that Merced roughed him up.
While Merced denied this , I credit the testimony of
Pedrosa whom I found to be forthright and candid. I find
therefore the aforesaid conduct by Merced and other
strikers in physically assaulting and threatening Pedrosa
was part of the overall pattern of violence and coercion
established at the beginning of the strike by Figueroa and
neither disclaimed nor disavowed by the Respondent
Union , and find the aforesaid conduct a violation of
Section 8(b)(1)(A) of the Act.
It is further alleged in the complaint that on or about
May 12, 1966 , a large group of picketers and strikers under
the control and direction of the Respondent 's agents in
charge of the strike and picketing activities were
permitted to engage in mass picketing and blocking tactics
at the main entrance to the Gayley plant and to use threats
of damage and physical harm to a management
representative and some employees of Gayley who were
attempting to enter the Gayley plant in an automobile
driven by the management representative. In this
connection there was straightforward testimony by Ed
Newton Stall, Jr., director of manufacturing for Gayley,
whose testimony I credit, that about 1 a.m. very early on
the morning of May 12, 1966 , driving a car in which
Patterson and Clark were also passengers , he approached
the plant . Parked immediately in front of the plant gate
and partially blocking the entrance were two vehicles. As
Stall attempted to drive through the gate, the policeman
and the guard who were outside the gate moved aside and
a group of pickets gathered and approached the car in
front and on both sides. Victor Fonseca, recognized by
Stall as an employee of Gayley, came to the car window
and inquired about the two other occupants of the car.
Stall told him they were employees , that they wanted to
enter the plant and would the strikers please let them
enter. Fonseca refused to let them enter . The crowd of 8 to
12, some of them carrying sticks and clubs, became noisy.
A resounding blow struck the car. Stall tried to drive
slowly inside the gate. Fonseca jumped in front of the car
stating something like "you can't go in." Stall drove inside
the gate where he and the other occupants got out and
were surrounded by the crowd of pickets who had
followed . The three tried to walk toward the rear entrance
of the plant but were restrained by the pickets . At this
time, according to Stall, Fonseca placed his hands on
CONGRESO DE UNIONES INDUSTRIALES DEI PUERTO RICO 451
Clark and said "the Americans cannot go in ." Fonseca
continued to state that the other two could not go into the
plant, and placed his hand on Stall's shoulder. About this
time one of the strikers, Hernandez, said to Clark "You're
an American, you don't belong in this. We have families,
you probably have a family in America. You ought to go
home, you ought to stay out of this." This testimony by
Stall which I credit was substantiated by the testimony of
Koch whom I also credit. I find, therefore, that this
conduct of mass picketing and blocking tactics and the
physical menacing of Stall and the use of threats to Clark
by Fonseca and a group of strikers without any disavowal
or disclaimer on the part of the Respondent Union to be
part of the pattern of conduct established by the
Respondent Union was fostered and instigated by the
Union and constitutes a violation of Section 8(b)(1)(A) of
the Act.
Another Gayley employee, Juan Gascot, testified that he
was on the shift starting at 11 p.m. on May 10, 1966, the
day the strike started, that when he arrived in a car at the
plant at 10 p.m. a group of strikers were in front of the
factory stopping workers from going into the plant. He
remained in the area. About 1 or 2 o'clock in the morning
when Gascot tried to leave the scene, Merced came to one
door and Caban to the other and told him he could not
leave. Later about 3 or 4 in the morning, he again
attempted to leave. As he started the car he felt a "bump"
on the back of the car where it had been hit by a piece of
wood. The next morning between 9 and 10 a.m. Gascot
went to work through the special police. When he was
inside, Merced came to the fence and told Gascot that
Gascot was hungry, that Gascot had to get out of the
factory, that some day Gascot would have to come out, and
that "they would beat" Gascot. He also told Gascot to
watch his car as "they" were going to break it up. I credit
this testimony by Gascot and find the conduct of Merced
to be a violation of Section 8(b)(1)(A) of the Act.
Anibal Berrios, a driver for Bayamon Transport,
testified that on May 13, 1966, he drove his tractor to the
Gayley plant at 2:30 p.m. to transport a van of
merchandise out of the factory. He parked in front of the
factory and started for the office. He was surrounded and
stopped by a group of about 20 pickets. When queried by
them he told them he was there to take out a loaded van.
He was told he could not. He was not permitted to go to the
office until he assured the group that that was all he would
do. I find that ample testimony of record establishes the
existence of a pattern of conduct by the Respondent Union
of coercive acts including blocking, threats, violence, and
damage to property. I find the foregoing conduct of the
group of pickets toward Berrios, whose testimony I credit,
conformed to the pattern of coercive conduct established
by the Respondent and designed to prevent entrance into
and emergence from the plant, therefore in violation of
Section 8(b)(1)(A) of the Act.
The complaint alleged additionally that on or about
May 17, 1966, a group of strikers and picketers led by
Montesino set fire to a Bayamon Transport Service truck.
Testimony of record which I credit establishes that after
the Berrios incident on May 13, 1966, Alvarez, president of
Bayamon, went to the Gayley plant where he was asked by
Caban, a former schoolmate, not to move the van out of the
Gayley premises . According to his testimony, Alvarez
agreed to leave the van where it was until Monday,
May 16. There was testimony by Berrios, Daniel Marrero,
and William Rolon Rivera, all employees of Bayamon, and
all of whom I credit as testifying candidly, establishing
that on the morning of Monday, May 16, three or more
persons came to the Bayamon lot in a car. The persons
were identified through testimony as including Frankie
Caban, Montesino, and an assistant mechanic at Gayley.
Marrero clearly identified "Chiqui" as Montesino, having
seen him testify and heard him identify himself in a related
court proceeding. It was indicated by this group that a van
had been moved out of the Gayley premises and that they
believed it had been moved by Bayamon. While Montesino
sat in the car, the hoods of the trucks were checked by the
visitors to determine which if any were still warm.
According to Marrero, whom I credit, Chiqui said, "Come
on, let's go; what we have to do is set fire to the trucks." I
am satisfied from the testimony of Marrero and his
demeanor while testifying that Marrero was referring to
Montesino when he used the nickname "Chiqui." Later
that morning Caban and others returned to Bayamon and
discussed the matter of the moving of the truck from
Gayley with Alvarez. Alvarez denied moving it but made it
clear that to keep his business with Gayley he would
provide the service required. The next morning a
Bayamon tractor to which was attached a flat bed
containing Gayley material was found burned. Guzman, a
Gayley employee, testified credibly that on or about
May 16 Chiqui asked Guzman, who was then picketing, to
take him to Bayamon. Chiqui directed Guzman to the
Bayamon lot where Chiqui got out, dispensed the liquid
contents of a paper bag inside the cabin of a truck, struck
two matches, threw them inside the cabin, and started a
fire. Chiqui then jumped in the car and they departed. I
am satisfied from credible testimony of record that the
"Chiqui" referred to was Montesino. The record also
establishes that a man's shoe was found at the scene of the
fire. There was testimony that Montesino left the scene
minus a shoe. I am convinced and find that Caban and
Montesino went to the Bayamon premises with others, as
part of the overall pattern of the Respondent Union to
interfere with and coerce Bayamon and to discontinue
deliveries to and from Gayley, and that Montesino, after
threatening to do so in the presence of Caban, returned at
night with striker Guzman and set fire to a Bayamon
tractor. I find this conduct concerning which the
Respondent Union had knowledge and concerning which it
took no action effectively to stop, disavow, or disclaim to
be a violation of Section 8(b)(1)(A) of the Act. Local 3,
International Brotherhood of Electrical Workers,
AFL-CIO (New Power Wire and Electric Corp.), 144 NLRB
1089.
The testimony of Jorge Gomez Sanchez established that
his son went to work for Gayley on May 10, 1966, the day
the strike began, that on or about May 20, 1966, Victor
Fonseca came to his home with several others and
persuaded Sanchez to drive with them to the Gayley plant
for the purpose of persuading his son to leave the plant and
stop working for Gayley during the strike. From Sanchez'
testimony, which I credit, I am convinced that as a result
of his discussion with Fonseca and because of the
statements made by Fonseca he was concerned for the
physical safety of his son and was in fact coerced into
going with the strikers and persuading his son to leave the
factory. The actions of Fonseca and the other strikers in
intimidating and coercing Sanchez and through Sanchez
coercing his son, were a continuing part of the overall
pattern of the Respondent Union in the conduct of its
strike and picketing activities and I find it to be a violation
of Section 8(b)(1)(A) of the Act.
295-269 0-69-30
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record also contains testimony by Fernandini, who
was in charge of the security guards at Gayley, concerning
two incidents occurring around May 20, 1966, in which
Merced threatened him, threatened to break his face in
two, and stated that he was going to go after the patrols;
that Merced, angered over the introduction of new
employees into the plant after the strike was under way,
threatened, if these employees were not taken out by
Gayley, to stop and search all cars and physically to take
out such employees to stop them from entering the plant,
and that if such employees were carried in patrol cars to
break up these patrol cars. I credit the testimony of
Fernandini and find these threats to be a violation of
Section 8(b)(1)(A) of the Act.
William Herrera, an independent trucker, testified that
he and another driver made a delivery to Gayley Rico on
May 21, 1966, at which time Merced jumped on their truck
thereby causing Herrera to stop the truck and preventing
him from entering the plant until the police intervened. I
credit Herrera's testimony and find the conduct of Merced
to be a violation of Section 8(b)(1)(A) of the Act.
Testimony of record establishes that Gonzalez, a Gayley
supervisor, had his car parked on May 13 on Gayley
property in the back of the plant, discovered that his
windshield had been smashed, and found stones on the car
hood. Testimony by German Laurean, a Gayley employee
and striker, whom I credit, established that on May 13 in
the afternoon Merced stated to a group that he had
"broken the glass of Tony Gonzalez." I find this to be a
violation of Section 8(b)(1)(A) of the Act.
Based on careful analysis of the record in this case and
on my observation of the demeanor of the witnesses as
they testified, I am convinced and find that each of the
incidents alleged in the complaint with the exception of
the stoning of Cintron's house by Montesino and others
occurred as alleged and that each of them is a violation of
Section 8(b)(1)(A) of the Act. I am also convinced that the
Respondent Union herein with the beginning of the strike
on May 10, 1966, embarked on a course of conduct at the
Gayley plant, and away from the Gayley plant, which was
part of an overall pattern including the carrying of sticks
and clubs by pickets, the damaging of property by fire and
otherwise, and the use of coercion and intimidation by
force and threats, all for the purpose of intimidating and
coercing employees of the Charging Parties herein in the
exercise of rights protected by Section 7 of the Act. The
Respondent Union, which instigated and fostered these
acts of misconduct, did nothing effectively to stop,
disavow, or disclaim them. I find, therefore, that in its
totality this conduct clearly violates Section ft)(1)(A) of
the Act.
B. The Responsibility of the Respondent Union
It is alleged in the complaint, as amended, that at all
times material Arturo Figueroa, president of the
Respondent Union, Juan Francisco Merced, Francisco
Rivera Montesino, Vicor Fonseca, Franklin Caban Ortiz,
and Gabriel ')Imo Rodriquez were agents of the
Respondent Union and that the Respondent Union is
responsible for the conduct of said agents under the
provisions of Section 2(13) of the Act. The complaint
further alleges that the strike and picketing activities
herein were sponsored and supported by the Respondent
Union and that the activities of the strikers and picketers
were under the direction and control of the officers and
agents of the Respondent Union. The Respondent Union
admits that Figueroa is the president of the Respondent
Union but denies the allegations -concerning the agency
status of all the named individuals and denies that the
activities of the strikers and picketers were under the
direction and control of the alleged officers and agents.
According to the testimony of Gabriel Olmo Rodriquez,
who identified himself as secretary-treasurer of the
Respondent Union, during the course of the strike when he
was present at the picket line he made sure that the
pickets conducted themselves in accordance with union
policy, that if the pickets came and asked questions as to
where and how they could picket he told them, that while
he was not instructed to do this by Figueroa he
nevertheless did it as he knew it was his duty as a union
official. Rodriquez also testified that whenever he left the
scene of the picketing he made sure somebody responsible
was left in charge, usually Merced and Caban, and gave
them instructions. Rodriquez also testified that he made
sure that the supplying of food and other items went
smoothly. Caban testified that he was in charge of the
pickets, sometimes during the day, other times at night,
and that Merced generally directed during the day. Caban
stated that Figueroa was sometimes in the vicinity of the
pickets, would inquire as to the situation, and would stay
and talk to the pickets; and that Figueroa would ask him
(Caban) how the conduct of the picketing was going. There
is ample credible testimony of record to establish and I
find that the Respondent Union sponsored and was in
charge of strike and picket line activities, that Figueroa
kept in touch with the situation by going regularly to the
scene, talking with picket directors and pickets, and
inquiring and receiving status reports from those in
charge. It is clear that Union Officer Gabriel Olmo
Rodriquez was similarly in charge of the strike and picket
activities, left Merced, Caban, and sometimes others in
charge when he was not there, kept in touch, and advised
on the situation. The record clearly indicates that both
Figueroa and Rodriquez were conspicuous in and about
the picket area and on the picket line directing the picket
activities. I find therefore that Figueroa and Rodriquez
were officers and agents of the Respondent Union for the
broad purpose of directing -ind conducting strike, picket,
and related activity, and that the Respondent Union is
responsible for their conduct and for the conduct of others
which occurred in their presence, or outside their
presence, which was an integral part of the pattern of
conduct which they established and encouraged and
which they fostered and instigated , and concerning which
they did not take steps reasonably calculated effectively to
stop, disavow, or disclaim. Local 888 U.A.W. (Miami
Plating Co.), 144 NLRB 897.
The record also amply establishes that Juan Francisco
Merced and Franklin Caban were members of the
organizing committee for the Respondent Union, were
active in the picket area and on the picket line, and that
they actively directed and controlled picketing activity,
with the knowledge, direction, and consent of Figueroa
and Rodriquez. While the Respondent Union contends
that the agency status of Merced and Caban was limited to
organizing activities , I am persuaded by substantial
credible evidence on the record as a whole, and I find that
under the circumstances Merced and Caban were agents
of the Respondent Union not only for the purposes of the
organizing committee but for the broad purpose of
directing and conducting strike and picketing activities
which are the subject of the charges herein and that the
CONGRESO DE UNIONES INDUSTRIALES DE! PUERTO RICO 453
Respondent Union is responsible for their conduct to the
same extent as in the case of Figueroa and Rodriquez.
As for Francisco Montesino, while he was not an
employee of either of the Charging Parties herein, there is
substantial testimony of record to establish that he played
a role at the strike and picket scene well beyond that of an
ordinary picket. I am persuaded that he was there with the
knowledge and consent of Union President Figueroa, to
help with the strike and picket activities, counseled and
advised with Merced and Caban when they were in charge
of activities, did himself direct the pickets on occasion,
and was clearly observed on the scene communicating
with union chiefs Figueroa and Rodriquez. His activities
were not disclaimed or disavowed by the Respondent
Union nor were steps taken to effectively stop his
activities. While Montesino and others testified that his
presence in the strike and picket area was merely because
he had a girl friend in the area, I simply do not credit this
testimony.
Similarly, as to Victor Fonseca there is ample testimony
of record to establish that he was a conspicuous
participant in strike and picket activities working closely
with Merced and Caban in carrying out strike and picket
objectives. Under the circumstances, I am convinced and
find that Montesino and Fonseca were agents of the
Respondent Union for the purpose of conducting strike
and picket and related activities and that the Respondent
Union is responsible for their conduct within this scope
regardless of whether their specific acts were actually
authorized or subsequently ratified. United Furniture
Workers of America, Local 309, C.I.O., (Smith Cabinet
Manufacturing Company), 81 NLRB 886. Assuming,
arguendo, that Fonseca and Montesino were not agents of
the Respondent Union there is ample credible testimony of
record to establish the fact that they were active in the
strike and picket area, that both were observed on the
picket line in the conduct of picket activities under
circumstances indicating knowledge by the Respondent
Union through its agents . Accordingly, I would apply the
principle that the basis of the Respondent Union's
responsibility for improper conduct by pickets is based on
its instigation or fostering of such conduct. To the extent
that the acts and conduct of Fonseca and Montesino are
included hereinabove in the findings of violations of
Section 8(b)(1)(A) by the Respondent Union, I find that
such conduct conformed to the pattern established by the
Respondent Union through its officers and agents, was not
the conduct of these persons as individuals but was
instigated or fostered by the Respondent Union through its
agents Figueroa, Rodriquez, Merced, and Caban and
accordingly I hold the Respondent Union responsible
therefor. Local No. 888, U.A.W., supra. In any event, I
would hold the Respondent Union responsible for acts of
misconduct and violence by the strikers based on the fact
that the Respondent Union which authorized the strike
knew of the acts of misconduct and violence but took no
steps reasonably calculated effectively to stop such acts.
Teamsters Local 783, International Brotherhood of
Teamsters, etc. (Coca-Cola Bottling Company of
Louisville), 160 NLRB 1776.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent Union set out in
section III, above, occurring in connection with the opera-
tions of the Charging Parties 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 obstruct-
ing commerce and the free flow of commerce.
Upon the foregoing findings of fact and upon the entire
record herein, I make the following:
CONCLUSIONS OF LAW
(1) The Respondent Union is a labor organization within
the meaning of Section 2(5) of the Act.
(2) By assaulting and threatening to commit bodily
harm to, and damage to the property of, supervisors,
employees, and others; by intimidating supervisors,
employees, and others; by picketing with clubs and sticks;
by mass picketing and blocking tactics; by physically
preventing supervisors, employees, and others from
entering the struck premises; by setting fire to the truck of
a transport service attempting to continue service during
the strike; by threatening and coercing the father of an
employee in order to prevent the employee from working
during the strike; by threatening plant guards with bodily
harm; by breaking the windshield of an employee's car;
and by encouraging , fostering, instigating, and embarking
on a course and pattern of conduct including the foregoing
conduct; and by taking no steps effectively to stop,
disclaim , or disavow such conduct, the Respondent Union
has restrained and coerced employees of the Charging
Parties herein in the exercise of their rights guaranteed by
Section 7 of the Act and thereby has engaged in and is
engaging in unfair labor practices affecting commerce
within the meaning of Section 8(b)(1)(A) of the Act.
(3) The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
(4) That portion of the complaint alleging the stoning
and breaking of windows of the house of an employee by
Montesino and others is not established by substantial
evidence and is dismissed.
THE REMEDY
The coercive and illegal conduct found herein, including
threats, violence, and destruction, requires that the
Respondent Union be ordered to cease and desist from
this type of conduct in any further strike and picketing
activities connected with the Charging Parties herein.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, it is hereby recommended that the
Respondent, Congreso De Uniones, Industriales De
Puerto Rico, Ind., its officers , agents, and representatives,
shall:
1. Cease and desist from restraining and coercing
employees of the Charging Parties herein by assaulting
and threatening to commit bodily harm to, and damage to
the property of, supervisors, employees, and others;
picketing with clubs and sticks , mass picketing and
blocking tactics; physically preventing supervisors,
employees, and others from entering the struck premises;
setting fire to the truck of the transport service attempting
to continue service during the strike; threatening and
coercing the father of an employee in order to prevent the
employees from working during the strike; threatening
plant guards with bodily harm; breaking the windshield of
454 DECISIONS OF NATIONAL
an employee 's car; or in any other manner restraining or
coercing employees of the Charging Parties in the exercise
of their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Post at the offices and meeting halls of the
Respondent Union copies of the attached notice marked
"Appendix . " I Copies of said notice , to be furnished by the
Regional Director for Region 24, after being duly signed by
the Respondent 's representative, shall be posted by the
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including places where notices, to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are
not altered , defaced, or covered by any other material.
(b) Mail signed copies of the notice to the Regional
Director for Region 24 for posting , the Charging Parties
willing, at all locations where notices to their employees
are customarily posted.
(c) Notify the Regional Director for Region 24, in
writing, within 20 days of the receipt of this Decision, what
steps the Respondent has taken to comply herewith.2
' In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board's Oidei is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
2 In the event that this Recommended Order is adopted by the
Board, this piovision shall be modified to read "Notify the
Regional Director for Region 24, in writing, within 10 days from
the date of this Order, what steps Respondent has taken to
comply herewith "
APPENDIX
NOTICE To ALL MEMBERS OF CONGRESO DE UNIONES
INDUSTRIALES DE PUERTO RICO, INC. AND To
EMPLOYEES OF GAYLEY RICO COMPANY AND BAYAMON
TRANSPORT SERVICE
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT restrain or coerce employees of
Gayley Rico Company and Bayamon Transport
Service in the exercise of employee's rights
guaranteed in Section 7 of the Act (including the right
to refrain from joining or assisting our union) by
assaulting and threatening to commit bodily harm to,
and damage to the property of, supervisors,
employees, and others; picketing with clubs and
sticks, mass picketing and blocking tactics;
physically preventing supervisors, employees, and
others from entering the struck premises; setting fire
to the truck of a transport service attempting to
continue service during the strike; threatening and
coercing the father of an employee in order to prevent
the employee from working during the strike;
threatening plant guards with bodily harm; breaking
the windshield of an employee's car.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of the
LABOR RELATIONS BOARD
rights guaranteed by Section 7 of the National Labor
Relations Act.
CONGRESO DE UNIONES
INDUSTRIALES DE PUERTO
RICO, INC.
(Labor Organization)
Dated By
(Representative ) (Title)
GAYLEY RICO COMPANY
(Employer)
Dated By
(Representative ) (Title)
BAYAMON TRANSPORT
SERVICE
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced,
or covered by any other material.
If members and employees have any question
concerning this notice or compliance with its provisions,
they may communicate directly with the Board's Regional
Office, P.O. Box 11007, Fernandez Juncos Station,
Santurce, Puerto Rico 00910, Telephone 724-7171,
Extension 123.
United Association of Journeymen and
Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and
Canada, Local No. 481, AFL-CIO and
Northwest Natural Gas Company and
International Chemical Workers Union,
Local No. 133. Case 36-CD-38.
March 17, 1967
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended , following
a charge filed by Northwest Natural Gas Company,
herein called the Company , alleging that United
Association of Journeyn en and Apprentices of the
Plumbing and Pipe Fitting Industry of the United
States and Canada, Local No. 481 , AFL-CIO, herein
called the Plumbers , violated Section 8(b)(4)(D) of
the Act . A duly scheduled hearing was held before
Patrick H . Walker, Hearing Officer, on
September 26, 1966. All parties appearing were
afforded full opportunity to be heard, to examine and
cross-examine witnesses , and to adduce evidence
bearing upon the issues. The rulings of the Hearing
Officer made at the hearing are free from prejudicial
163 NLRB No. 56