Union de Tronquistas, Local 901

National Labor Relations Board - Board Decisions

Mar 15, 1973

202 N.L.R.B. 399 (N.L.R.B. 1973)

UNION DE TRONQUISTAS, LOCAL 901 399
Union de Tronquistas de Puerto Rico, Local 901,
afiliada a la International Brotherhood of Team-
sters, Chauffeurs , Warehousemen & Helpers of
America and Lock Joint Pipe & Co . of Puerto Rico
Union de Tronquistas de Puerto Rico, Local 901,
afiliada a la International Brotherhood of Team-
sters , Chauffeurs , Warehousemen & Helpers of
America and Union Obreros Cemento Mezclado.
Cases 24-CB-774 and 24-CB-775
March 15, 1973
DECISION AND ORDER
On February 17, 1972, Administrative Law Judge I
Harry R. Hinkes issued the attached Decision in this
proceeding . Thereafter , the Respondent Union filed
exceptions and a supporting brief , and the General
Counsel filed a brief in support of the Administrative
Law Judge 's Decision. -
The National Labor Relations Board has consid-
ered the record and the attached Decision in light of
the exceptions and briefs and has decided to affirm
the Administrative Law Judge 's rulings , findings,2
and conclusions and to adopt his recommended
Order , as modified below.
We agree with the Administrative Law Judge that
Respondent Union violated Section 8 (b)(1)(A) by
engaging in threats and picket line violence at the
Lock Joint Plant in Puerto Rico beginning on August
9, 1971.
We do not, however , agree with his further
recommendation that the proper remedy in this case,
contrary to Board precedent , is an order directing the
Union to give backpay to all employees who did not
work as a result of these unfair labor practices. From
the very earliest days of the Taft -Hartley Act the
desirability of such a remedy has been argued to the
Board . In each case the Board has refused to enlarge
the scope of its traditional remedies for picket line
misconduct .3 The latest Board decision, Long Con-
struction Company, 145 NLRB 554, involved physical
injury to employees attempting to cross the picket
line. The Board reiterated its view that a backpay
order was not appropriate where the union 's unfair
i The title "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972
2 We find it unnecessary to the decision in this case to rule on the
Administrative Law Judge 's finding that the truck owners and their drivers
are employees of Lock Joint Pipe Many of the incidents were directed at
individuals who were directly employed by the Employer, and others
involved employees of the truckowners As to the latter incidents , it is not
necessary, for a finding of 8(b)(I)(A) conduct, that the employees coerced
have been those of Lock Joint See, e g , Local 3887, Steelworkers
(Stephenson Brick & Tile Company), 129 NLRB 6
3 Colonial Hardwood Flooring Company Inc, 84 NLRB 563, West
Kentucky Coal Company, 92 NLRB 916, Bitner Fuel Company, 92 NLRB
953, Harry Griffin Trucking, 114 NLRB 1494, International Terminal
Operating Co, inc, 114 NLRB 1563, Local 983, United Brotherhood of
labor practices involved solely interference with an
employee's right of ingress to his place of employ-
ment.
These important decisions have stood the test of 24
years of court litigation and Congressional scrutiny.
They have not been reversed or nullified and we do
not believe the time has come for the Board itself to
take that step. National Cash Register Co., et al. v.
N.L.R.B., 466 F.2d 945, on which our dissenting
colleagues rely, stands only for the well-established
principle that where an employer unlawfully prevents
an employee from working at the insistence of a
union both are jointly and severally liable for the
employee's loss of pay.4
In exercising its broad discretionary powers under
Section 10(c) of the Act the Board has always been
careful to balance the effectiveness of a particular
remedy against its consequences. Thus, the Board
has refrained from directing an otherwise appropri-
ate remedy where practical and economic considera-
tions dictated a lesser deterrent. See, for example,
Winn-Dixie Stores, Inc., 147 NLRB 788; Pepsi-Cola
Bottling Company of Beckley, Inc., 145 NLRB 785;
Tennessee-Carolina Transportation, Inc., 108 NLRB
1369. The extension of backpay liability to a
situation where, as here, only picket line misconduct
has occurred involves important considerations
going to the heart of the right to strike under Sections
7 and 13 of the Act. Those sections of the Act have
been called the safety valves of labor management
relations. Emotions run high among those for and
those against the union. Regrettable, sometimes there
is violence and the threat of violence. This we
deplore and in no way condone. However, adequate
remedies under the Act other than backpay exist to
prevent the occurrence of violence without interfer-
ing with the right to strike.5 Where union agents,
including pickets, engage in conduct violative of
Section 8(b)(1)(A) the Board enjoins the continua-
tion of such conduct and may, if warranted, seek an
immediate court injunction under Section 10(j) of the
Act. If such judicially directed injunctive relief is
ignored effective contempt action is available.
Finally, when a union resorts to or encourages the
use of violent tactics to enforce its representation
Carpenters and Joiners of America, AFL-CIO, 115 NLRB 1123
4 See also Stuart Wilson, Inc, 200 NLRB No 83, which is likewise
distinguishable as there the employer discriminated against the employees
by sending them home because of the union's unlawful threats and violence
5 As we noted in Long, supra, the lack of a Board order awarding
backpay to employees unable to work because of injuries resulting from a
union's unlawful conduct will not leave such employees without redress
against those responsible for their injuries These individuals will still have
available those private remedies traditionally used to process claims
resulting from another 's tortious conduct In fact they may be better served
by pursuing such remedies as the employee 's pay may be only a small part
of the total required to make him whole, such as medical expenses as well as
compensation for physical injury and pain and suffering.
202 NLRB No. 43
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rights the Board may decline to issue a bargaining
order to remedy an employer's unfair labor practices
and instead may direct an election to determine
whether or not the union is the recognized represent-
atives
To do more, in our opinion, runs the risk of
inhibiting the right of employees to strike to such an
extent as to substantially diminish that right. For the
misconduct of a few pickets may be sufficient to find
the union in violation of Section 8(b)(1)(A) and
enough to intimidate many employees. The Board
would then be required, under the logic of our
dissenting colleagues, to seek backpay for all intimi-
dated employees. Faced with this finacial responsi-
bility, few unions would be in a position to establish
a picket line. In our opinion, union misconduct of
this nature, while serious, does not warrant the
adoption of a remedy so severe as to risk the
diminution of the right to strike, a fundamental right
guaranteed by Sections 7 and 13 of the Act. Rather,
we believe, the availability to the General Counsel of
Section 10(j) of the Act, implemented by contempt
action, if necessary, as well as the witholding of an
otherwise appropriate bargaining order and the
direction of an election are the preferred methods of
deterring picket line misconduct violative of Section
8(b)(1)(A).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Union de Tronquistas de Puerto Rico, Local
901, afiliada a la International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America, its officers, agents, and representatives,
shall take the action set forth in the said Order, as so
modified.
1. Delete paragraph 2(a) of the recommended
Order and reletter the remaining paragraphs accord-
ingly.
2. Substitute the attached notice for that of the
Administrative Law Judge.
CHAIRMAN MILLER AND MEMBER KENNEDY, dissent-
ing in part:
We agree with our colleagues that by engaging in
acts of violence against nonstriking employees, by
damaging the property of nonstriking employees,
and by threatening injury to other employees, the
Union has, in violation of Section 8(b)(1)(A),
engaged in coercive activity designed to prevent
nonstriking employees from working and to deter
striking employees from returning to work. However,
we dissent from our colleagues' refusal to adopt the
Administrative Law Judge's recommended Remedy
to make the employees whole for the loss of wages
suffered when they were prevented from working by
the Union's unlawful conduct.
We are unable to perceive the basis of our
colleagues' conclusion that a backpay remedy herein
would unnecessarily "risk the diminution of the right
to strike," and their reliance on the existence of
"adequate remedies . . . other than backpay . . . to
prevent the occurrence of violence without interfer-
ing with the right to strike." Section 10(c)'s concern is
not with preventing or deterring violence but with
eliminating and remedying the effects of that
violence. Hence, any incidental deterrent or penal
effect of backpay is irrelevant in our -determination
of an adequate remedy for the violation found
herein. Indeed, it is difficult ` to comprehend how
making an employee whole for loss of wages suffered
because of the union's unlawful activity in prevent-
ing employees from working is any less remedial or
any more punitive or deterrent in effect than making
an employee whole for loss of wages suffered when
the employer would not allow him to work because
of the union's unlawful activity. In Stuart Wilson,
Inc.,7 wherein the employer sent employees home
because of union threats and violence, our colleagues
did not question the remedial nature of the backpay
order against the union nor did they point out the
inevitable deterrent or penal effect of that or any
other backpay order. In that case, as here, the
backpay remedy was sought in order to reimburse
the employees for loss of wages suffered as the result
of the union's unfair labor practices, and any
deterrent or penal effect of such remedy is merely
incidental.
In our view, a backpay order herein is no more
penal or deterring in effect than any other backpay
order issued by the Board. Indeed, a backpay remedy
in the instant case is necessary to remove the effect of
the Union's unlawful conduct and thereby effectuate
the policies of the Act.
In this regard, our colleagues have cited the
Board's decision in Long Construction Company,8 as a
basis for denying the remedy sought herein. While
the Long decision acknowledges Colonial Hard-
woods and related Board decision cited by our
colleagues as denying backpay when a union violates
Section 8(b) (1)(A) by interfering with an employee's
right of ingress to his place of employment, the
6 Allou Distributors, Inc, 201 NLRB No 4, Laura Modes Company, 144
NLRB 1592
1 200 NLRB No 83
8 145 NLRB 554
9 84 NLRB 563
UNION DE TRONQUISTAS, LOCAL 901 401
Board in Long expressly refused to decide whether
the result of those decisions is or is not required by
any lack of statutory authority. Rather, the Board
relied entirely on reasons of policy in denying
backpay in Long. Obviously, therefore, Colonial
Hardwood can no longer be considered controlling
on the issue of the Board's authority to render such a
backpay award; 10 the Board's rationale in Long,
instead, makes the denial of backpay in cases
involving such violations dependent only on certain
policy considerations. The reasons of policy set forth
in Long,ii however, in themselves distinguish that
case from the facts before us.
Obviously the Board's primary concern in Long
was the existence of damages other than the loss of
wages. But the fact that the loss of wages was only a
small part of the total required to make the
employees whole in that case is clearly nonexistent
here. Therefore, the policy reasons for denying
backpay-the necessity of private actions to fully
recover damages, complicated factual questions
outside the Board's expertise, and the existence of
state interest in remedying tortious conduct-are
manifestly irrelevant in determining whether or not a
backpay remedy herein would effectuate the policies
of the Act.
The Board's authority to issue a backpay order to
remedy union conduct found to be a violation of
8(b)(1)(A) of the Act recently received judicial
approval from the United States Court of Appeals
for the Sixth Circuit in National Cash Register Co., et
al. v. N.L.R.B., 466 F.2d 945. The court there
enforced the Board's backpay order against a union
to remedy picket line restraint and coercion of
employees found to be a violation of Section
8(b)(1)(A) of the Act. The Board did not find the
8(b)(2) violation alleged in the complaint in that case.
The court of appeals' opinion contains a comprehen-
sive review of the cases dealing with the broad
discretionary authority of the Board in framing and
issuing remedial orders under Section 10(c) of the
Act. The court expressly rejected the contention that
it is necessary to find a violation of Section 8(b)(2) of
the Act for a backpay order to issue against a union.
It is our view that in the case before us-where the
Union has flagrantly violated Section 8(b)(l)(A) of
the Act and where the only losses suffered by the
employees are wages-the Board should exercise its
descretion, fulfilling the mandate of Section 10(c),
and award backpay in order to remedy the Union's
unfair labor practices.
We would, therefore, adopt the Administrative
Law Judge's recommended Remedy and order the
Union to compensate the employees for wages lost as
a result of its unlawful conduct.
10 The past failure of the Board to prescribe such a remedy is not
controlling Acknowledging the Board 's authority to fashion a new remedy
(the Woolworth formula for computing backpay, 90 NLRB 289), the
Supreme Court stated in N L R B v Seven - Up Bottling Company of Miami,
Inc, 344 U S 344 (1953) "[Section l0(c) I charges the Board with the task of
devising remedies to effectuate the policies of the Act In fashioning
remedies to undo the effects of violations of the Act , the Board must draw
on enlightenment gained from experience " And in N LR B v Local 138,
International Union of Operating Engineers, AFL-CIO, 380 F 2d 244 (C A
2), the court , upholding the Board 's right to include interest in backpay
awards where it had not previously done so, noted that the Board has broad
discretion in determining what will effectuate the policies of the Act and
held that the Board " is not bound by its poor precedent not to grant interest
if it decides that an award of interest is consonant with the Board remedial
purposes of the Act "
ii The Board in Long declined to award backpay for the following
reasons -
(1) The cease -and-desist order , in conjunction with the utilization of the
contempt procedures provided in the Act, is well designed to prevent
the recurrence of the unfair labor practices and to vindicate public
rights, (2) to the extent that the Board has power to award backpay to
employees injured by Respondent's violent conduct , such power
derives from the effect of such conduct on the employee 's employment
relationship , yet the employee 's loss of pay may be only a small part of
the total required to make him whole, which total may well include
medical expenses as well as compensation for physical injury and pain
and suffering , (3) to the extent that satisfaction of individual claims
which are primarily private in nature may also serve to further the
public interest in obtaining the peaceful resolution of labor disputes,
such interest is equally well served by the individual's resort to those
remedies traditionally used to process claims resulting from another's
tortious conduct , (4) the numerous and complicated factual questions
involved in settling such claims are not such questions as fall within the
Board's special expertise , but do fall within the special competence of
judge and jury, and (5) in our opinion, our exercise of such authority as
may reside in the Board to award compensatory relief might well exert
an inhibitory effect on the exercise of State authority , and would, in
any event , complicate and confuse the issue, to the possible detriment
of the employees whose rights we seek to protect [ 145 NLRB at 556 1
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found,
after a trial, that we violated the National Labor
Relations Act:
WE WILL NOT prevent or attempt to prevent
employees of Lock Joint Pipe & Co. of Puerto
Rico, or employees of any other employer in
Puerto Rico, from working either by use of force
or violence or threat of force or violence upon any
employee or by causing or threatening injury to
the employee or his property.
WE WILL NOT in any other manner restrain or
coerce employees of Lock Joint Pipe & Co. of
Puerto Rico, or employees of any other employer
in Puerto Rico, in the exercise of rights guaran-
teed employees by Section 7 of the National
Labor Relations Act.
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
UNION DE TRONQUISTAS
DE PUERTO Rico, LOCAL
901, AFILIADA A LA
INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN &
HELPERS OF AMERICA
(Union Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board 's Office , Pan Am Building , 7th Floor, P.O.
Box U U 255 Ponce De Leon Avenue, Hato Rey,
Puerto Rico 00919, Telephone 809-662-0586.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HARRY R . HINKEs , Trial Examiner : The charge in Case
24-CB-774 was filed by Lock Joint Pipe & Co. of Puerto
Rico, hereinafter referred to as Lock Joint or Company, on
August 11, 1971, and served on Local 901, Union de
Tronquistas , hereinafter referred to as the Respondent or
Union, on August 18, 1971. The charge in Case 24 -CB-775
was filed by Union Obreros Cemento Mezclado, on
August 16, 1971, and served on said Local 901, Union de
Tronquistas , on August 19, 1971. Pursuant to these charges
an order was issued consolidating these cases on October 8,
1971, and alleging that the Union has been and is
restraining and coercing the employees of Lock Joint in the
exercise of their rights guaranteed in Section 7 of the Act,
by threats of harm to Lock Joint employees and/or
members of their families if said employees refuse or fail to
observe the picket line established by the Union at the
Lock Joint plant and by acts of violence directed at a Lock
Joint employee making a delivery to a customer. By such
behavior the' complaint alleges that the Respondent
engaged in unfair labor practices affecting commerce
within the meaning of Section 8(b)(1)(A) of the Act. By
answer duly filed Respondent Union denied the alleged
unfair labor practices.
A hearing was held before me in Hato Rey, Puerto Rico,
on November 15, 16, and 23, 1971, at which all parties were
afforded full opportunity to be represented , examine
witnesses and adduce relevant evidence . At the conclusion
of the hearing, counsel were afforded an opportunity to
make oral argument . In addition , briefs were requested
from the parties and have been received from counsel for
the General Counsel as well as from counsel for the
Charging Party . Counsel for the Respondent Union failed
to file a brief within the time allowed for said purpose and
failed to make a timely request for an extension of time.
Upon the entire record of this proceeding, I make the
following:
FINDINGS OF FACT
I. JURISDICTION
Lock Joint is a Puerto Rico corporation engaged in the
manufacture of concrete pipes with its principal place of
business in Carolina, Puerto Rico, and another in Hato
Rey, Puerto Rico. During the calendar year preceding the
issuance of the complaint, which period is representative of
all times material herein, it purchased and caused to be
shipped in the course of its operations directly to its place
of business from points outside Puerto Rico , materials and
supplies valued in excess of $50,000. The complaint alleges,
counsel for the Respondent Union stipulated at the
hearing, and I find that Lock Joint is now, and has been at
all times material herein , an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
The complaint alleges, counsel for the Respondent
Union stipulated during the course of hearing , and I find
that the Respondent Union is and has been at all times
material herein a labor organization within the meaning of
Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Agency
The complaint alleges that Nelson Gotay , Jaime Ortiz,
and Luis Roberto Capllonch were officers and agents of
the Respondent Union and Respondent's answer denies
this allegation.
In support of this allegation , counsel for the General
Counsel cites the testimony of Edward Walters, Lock
Joint's vice president and general manager , who testified
that Ortiz, Capllonch, Gotay , as well as Jose Cadiz Ayala,I
were representatives of the Respondent Union, present at
the picket line that was established outside the Lock Joint
plant early in August 1971, and that Ortiz and Capllonch
were there most consistently . Counsel also cites the
testimony of witness Candelaria, an employee of Lock
Joint who was called to testify on the behalf of the
Respondent Union . Candelaria testified that Ortiz was in
full charge of the picketing activities . General Manager
Walters also testified in rebuttal that in the month of June
1970 he received a telegram signed "Nelson Gotay,
representative of the Teamster's Union of Puerto Rico
Local 901." In it he was told that Candelaria and another
individual were representatives of the Company' s office
workers. In addition , Walters testified that from late 1970
to August 6, 1971, he negotiated a contract with Ortiz,
Capllonch , and Gotay representing the Union . I was also
asked to take official notice of matter contained in prior
I The transcript of this proceeding at p. 14 , 1. 12 is hereby corrected. Adis
Ayala should read Cadiz Ayala.
I
UNION DE TRONQUISTAS, LOCAL 901
Board and Trial Examiners' decisions. Thus, in Cases
24-CA-2907 and 2921, the charge initiating the complaint
against Lock Joint was filed on behalf of the Respondent
Union by Nelson Gotay and signed by him as "organizer"
for the Respondent Union. At the hearing before the Trial
Examiner in those cases, which took place in January 1971,
Nelson Gotay filed a formal appearance as representing
the Respondent Union. The Trial Examiner's decision in
those cases identifies Capllonch as a steward for the
Respondent Union at the Lock Joint plant. In the case of
Hotel La Concha, 193 NLRB No. 90, the decision of the
Trial Examiner adopted by the Board identifies Cadiz as a
business agent for the Respondent Union in activities
occurring around November 1970. In that same decision
the Trial Examiner cites the case of the Respondent Union
involving Barceloneta Shoe Corp. in which both Cadiz and
Gotay are listed as agents for the Respondent Union
during events occurring in 1969. Counsel for the General
Counsel submits that the agency of Ortiz, Capllonch,
Gotay, and Cadiz is thus established noting that counsel
for the Respondent called none of these individuals to
testify, although some, if not all, of them were present at
some time during the course of the hearings. No explana-
tion was offered for Respondent's failure to call these
individuals to rebut the testimony establishing their agency
and their behavior or to negate the inferences to be drawn
from the documentary evidence submitted in that connec-
tion.
It may be argued that the agency status of Gotay,
Capllonch, and Cadiz, though established for periods in
1969, 1970, and early 1971, are not necessarily indicative of
their union agency status in this proceeding for August
1971. I would not agree. The prior existence or nature of a
status is admissible to evidence its existence or nature at a
particular time. See Wigmore's Code of Evidence, 3d ed.,
sec. 497, also Wigmore on Evidence, 3d ed., sec. 382. The
evidence of agency on the part of these individuals shown
in 1969, 1970, and 1971, coupled with Respondent's failure
to contradict the inference that such status continued
uninterrupted, particularly where such contradictory evi-
dence, if it existed, was readily available by the testimony
of these individuals who were present during the hearing,
leads me to conclude that counsel for the General Counsel
has sustained his burden of proof to establish that Gotay,
Capllonch, Cadiz, and Ortiz were agents for the Respon-
dent Union at all times material herein.
B. .- The Status of the Truck Owners
and their Drivers
The hauling operations of the Company are performed
by four individuals who own their own vehicles and hire
their own drivers. They haul exclusively for Lock Joint and
do not haul for any other business. The Company
establishes the rates it pays these truck owners based upon
distance and weight of the cargo. A Lock Joint employee
supervises the drivers, telling them where to go and when
to go. On occasion the Company will lend the truck owner
money for maintenance of their vehicles or to buy a set of
tires or to get license plates. The individuals driving these
trucks are paid by the truck owners who also pay all
operating expenses and taxes. In J. K. Barker Trucking Co.,
403
181 NLRB 515, affd. 450 F.2d 1322 (C.A.D.C.), an
arrangement not unlike that in this proceeding was found
to result in the truck owners who operated their own trucks
for a contractor being deemed employees of such contrac-
tor:
Notwithstanding the fact that the owner-operators have
substantial financial investments in trucking equip-
ment, pay all maintenance and operating costs, pay for
all permits , insurance , social security and income taxes,
we are persuaded by the fact that, once on the job, the
owner-operators, like the employee-operators, were at
all times subject to the supervision of the contractors.
In addition, the contractors retained control over the
loaders which were essential for loading the trucks, as
well as control over the place where the materials were
to be unloaded, and the number of trucks and hours of
their use.
Accordingly, I find that the truck owners and their
drivers are employees of Lock Joint within the meaning of
the Act by virtue of the complete control exercised by Lock
Joint over their operations.
C. The Unfair Labor Practices
General Manager Walters testified that the picket line of
the Respondent Union was set up at the Lock Joint plant
on Monday , August 9, 1971.
Felicita Perez Cruz, a secretarial employee of the
Company, testified that when she came to work on August
9 she found the car of Jaime Ortiz blocking the entrance to
the plant . She parked her car near the office and was
approached by Ortiz and Capllonch , who also worked for
Lock Joint, and was told by them that it was dangerous for
her to enter because they were on strike and that it was
better for her to go back home and stay . She went home
and returned again around 1 p.m. when she entered the
plant through a different parking lot. The next day when
she went to work she was met at the entrance by
Caplionch, who told her she could not enter. With
Capllonch was another individual whom Mrs. Perez
identified as "one of the Tronquistas" (Teamsters). The
Teamster , in the presence of Capllonch , told Perez "if you
go in you will have to face the consequences ." Neverthe-
less, Perez entered and stayed until noon . She left at that
time , however, because she was nervous and did not return
to the plant again until a week later. In a statement given at
the time by Mrs. Perez to an attorney for the Charging
Party neither the names of Capllonch and Ortiz appear nor
does the statement by some person that it was dangerous to
go into the plant . Mrs. Perez explained that at the time she
did not want to mention the specific name nor use the
words that she was told.
Cirino Alvarado San Lucas , a timekeeper for Lock Joint,
testified that he reported to work on August 9, and while
working was telephoned by Ortiz, who told Alvarado to
come out . Some 15 or 20 minutes later , Alvarado not
having come out, Ortiz called him once again and , using a
coarse expletive , told him "come on out or they will wreck
your car." Alvarado then came out and was told by Ortiz
that they were on strike . Ortiz asked Alvarado to pick up a
picket sign, but Alvarado refused, agreeing, however, that
he would stay outside . When Alvarado reported to work
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the next day he found Capllonch, Gotay, and some 8 or 10
others at the entrances to the main gate . The group came
out in front of Alvarado's car and told him that he could
not get through, that nobody could go in. After staying for
a while, Alvarado left. On Wednesday, August 11, he
reported to work as usual but did not enter the plant until
about 11 a.m. when General Manager Walters called him
into the plant. Alvarado explained that he was afraid to
enter the plant that morning. After spending a few hours
with Walters, Alvarado left the plant and found that his
car's windshield and windows were broken and all four
tires punctured. Ortiz was in the vicinity and when
Alvarado told him there was no reason to wreck his car
because he was not going to work, Ortiz replied, "I am
your friend and advise you to stay home because if you
come to work you are going to be hit." On August 12, while
Alvarado was at work at the plant, he received a phone call
from a girl whose voice he could not identify, suggesting
that he might have difficulty leaving the plant. Alvarado
asked another employee to get him out in the other
employee's car. The two then left the plant with Alvarado,
frightened, lying on the floor of the back seat. Looking up
he could see Ortiz running alongside, the car. Alvarado
stayed home after August 12 and did not return to work
until August 25.
Raul Quiles Camacho, payroll officer for Lock Joint,
testified that he reported to work on August 9 and was
stopped at the gate by Ortiz who told him not to go into the
plant because his car might be damaged. Capllonch was in
the surrounding area at the time, together with several
others. Quiles did not enter the plant nor did he go to work
the next day because of these threats. On Wednesday,
August 11, he went to the plant and, as he went through
the gate, Capllonch called to him. A man with Capllonch,
whom Quiles did not know, told Quiles, "The Company
will protect you from the gate in, but what happens to you
outside neither you nor your family will be protected."
Another person walked over and pointing a finger at
Quiles said, "Nobody has broken a strike for me." That
person moved forward and Quiles called to a police officer
who was standing nearby. The police officer walked Quiles
to the office. Quiles was frightened and, when he left the
plant, approached Ortiz and told him that he was not going
to work. Ortiz replied, "all right you can go." Quiles stayed
away from work for 1 or 2 weeks and returned when the
Lock Joint chief of personnel told him that everything was
all right and that he could come back to work.
Vicente Betancourt de Jesus, a Lock Joint employee,
testified that he went out to lunch on August 9. Ortiz and
several others were standing in a group outside. Someone
said that if Betancourt went in to take the job of the janitor
he would be attacked. Betancourt further testified that on
August 24, as he was leaving the plant, he met a group of
five or six people including Ortiz. Ortiz said that Betan-
court was working and someone else added that they were
watching Betancourt.
Americo Nigaglioni, owner of three trucks used exclu-
sively to transport materials for Lock Joint under the
arrangement described earlier, testified that he arrived at
the plant on the morning of August 9 and saw Capllonch,
Ortiz, and Candelaria on the picket line. Later that
morning, Gotay told Nigaglioni, "Cooperate or in the
surrounding area the police will protect you, outside we
will catch you, we are the bosses outside." Nigaglioni
further testified that Gotay told him "if I wanted my
drivers and if I didn't appreciate my trucks to try and move
them." When Nigaglioni left the plant that afternoon he
heard Ortiz and Capllonch call the departing office
employees "rats." Nigaglioni testified further that he was
unable to use his trucks because the Teamsters prevented
him, and for 3 weeks his truckdrivers did not work.
Nigaglioni himself visited the plant repeatedly during this
period of time using a pickup truck to get to and from the
plant and not the usual tractor-trailer trucks used for
company deliveries. He was not stopped or interfered with
on these visits.
Jose Luis Perez Rosado works as a driver for his father,
Ismael Perez Souchet, who, like Nigaglioni, is a truck
owner supplying trucks and drivers for Lock Joint under
the arrangement described earlier. Jose Perez.testified that
he went to Lock Joint on August 9 and stayed there all
day. Standing with Gotay and Nigaglioni he heard Gotay
tell Nigaglioni that they wanted him to cooperate, and if
the drivers and trucks were not worth anything to him then
he should bring the company material out. Gotay added
that the police gave Nigaglioni protection inside Lock
Joint, but that outside he would not have any. Ismeal Perez
Souchet, Jose's father, testified that on August 9, while
outside the gates of Lock Joint, Gotay told him that if did
not want his trucks to be damaged he should stop hauling
for Lock Joint. Mr. Perez' trucks did not work at the
Carolina plant of Lock Joint for the next week or two.
Wilfredo Martinez Rolon works for his father, who is
another truck owner supplying trucks and drivers for the
exclusive use of Lock Joint. Martinez testified that, when
he arrived at the Lock Joint plant on August 9, he saw
certain employees of Lock Joint picketing in front of the
plant. Ortiz, who was on the picket line, called to Martinez
and asked him to talk to an individual who was from the
Teamsters Union. That individual told him that it was
better that he did not take his trucks out because they
might be damaged. Ortiz, however, was not present when
Martinez was told this and Martinez was able to operate
his trucks from the plant that day. The next day when
-Martinez came to the plant again, he found a much bigger
crowd outside the plant with a "menacing attitude." He
then reported to the Lock Joint dispatcher that the drivers,
having seen how things were, did not want to take the
trucks out of the plant. The next day he met Gotay in front
of the gate to the plant. Many other individuals were
present. Gotay told Martinez, "Do not attempt to move
that truck that you are loading there, if you dare take it out
through here we are going to destroy the truck and we are
not responsible for what happens to the driver." When
Martinez said that he did not like Gotay's threatening
attitude, Gotay replied, "Oh, you're one of the tough guys"
and called to several others saying "This is one of the
tough ones-we will have to give him a scolding." One of
them told Martinez, "It's best that you keep quiet because
you know what can happen to you." Martinez reported the
incident to a policeman who was standing nearby and
Gotay said, "You are nothing but a baby-if you have
UNION DE TRONQUISTAS, LOCAL 901
these trucks here be a man and protect them if you dare."
Martinez then sent his drivers home and they stayed away
until August 25.
1. The shooting incident
Martinez testified that he had agreed with General
Manager Walters to provide a truck for the transportation
of a trailer of cement in bulk. On August 13, Walters asked
if Martinez had such a truck available to haul the cement
trailer. Martinez supplied the tractor, but not the driver,
whom Walters procured. When Martinez left the plant that
afternoon, he passed the pickets among whom were
Candelaria and Capllonch. Someone in the crowd told
him, "We know you live in Jardines de Vega Baja so be
very careful and remember that as a truckman we are
going to get rid of you."
David Salmon is an assistant manager for the Wacken-
hut Corporation which provides security services for plants
and has provided such services for Lock Joint for the past
11 years. Salmon testified that Walters asked him to
provide protection for the driver and the truck which was
to be used to obtain cement for the Lock Joint plant on
August 13. Accordingly, Salmon arranged for two Wack-
enhut vehicles to escort the vehicle, using four investigators
including Salmon. At about 2 p.m. on August 13, the truck
and trailer left the plant, a Wackenhut vehicle with two
investigators in front of it and another Wackenhut vehicle
following it with Salmon and a driver in the second vehicle.
As the convoy left Lock Joint passing the picket line,
several rocks were thrown at the truck which swerved to
the left missing a large group of demonstrators that was on
the right, but striking several police cars which were parked
to the left of the truck. The truck and the two cars
continued, getting to the highway that leads to the cement
plant. This highway has three traffic lanes going in one
direction and three traffic lanes going in the opposite
direction with a dividing median. The truck and its two
accompanying vehicles were in the middle lane when
Salmon noticed a light green Ford Torino bearing license
49 N065 approaching from the rear in the left lane. It
passed Salmon 's car and positioned itself next to the rear
wheels of the trailer. There it made several swerving
motions which appeared to be an effort to force the truck
to move over, but in so doing the rear of the Ford collided
with the rear wheel of the trailer. Salmon radioed his office
for a police car, but in the meantime began taking
photographs of the event.
After the collision between the Torino and the cement
trailer, the Torino fell behind. Before long, however, it
approached once again from the rear on the left lane.
Salmon noticed that the right rear window of the Torino
was down, although all the other windows were closed. A
pistol was extended out the window of the car and several
shots were fired towards the rear of the trailer . Salmon
could see paint flying off the rear of the trailer and the
Torino then dropped behind. A police car then approached
and the Torino pulled around and came over on the right
lane and, proceeding at a very high rate of speed, passed
the convoy and disappeared. The convoy continued to the
cement plant where the trailer was loaded and returned to
Lock Joint escorted by two police cars. Salmon then took
405
photographs of the trailer which , together with the
photographs taken of the incident on the highway with the
Torino, were offered and received in evidence . In addition,
a certification from the Puerto Rico Department of Public
Works was offered and received in evidence establishing
that a Ford car with license 49 N065 is registered in the
name of Jose Cadiz Ayala, a resident of number 352 del
Parque Street , Santurce , Puerto Rico . Said Jose Cadiz
Ayala is the Cadiz earlier noted as a business agent of the
Respondent Union. Moreover, the residence of said Cadiz
as noted on the certification from the Department of
Public Works is the same as the address of the Respondent
Union as well as that of counsel for the Respondent
Union. It would appear, therefore , that the so-called
"residence" of Cadiz is really the union headquarters.
Salmon left the Lock Joint plant late in the afternoon of
August 13, escorting Walters and the secretaries, who were
very nervous. The cars of the employees were lined up with
a Wackenhut car in the front and another Wackenhut car,
in which Salmon was riding, in the rear . The procession
passed a group of demonstrators one of whom broke the
windshield on one of the cars with a rock . Salmon's
windshield was also smashed.
Salmon testified that the Ford Torino involved in the
highway incident was seen by him at the Lock Joint plant
prior to the convoy leaving the plant early that afternoon.
When the convoy returned the Ford was once again parked
at the plant but in a different spot . Salmon also testified
that , when escorting the employees from the plant late that
afternoon, he recognized Gotay and Cadiz in the crowd of
demonstrators . Later, at the request of police authorities,
Salmon identified the driver of the Ford Torino as Cadiz.
At around 11:30 p.m., on the night of August 13, Salmon
returned to the Lock Joint plant to check whether the
guards he posted there were performing their duties.
According to Salmon 's instructions , the plant gate was
locked . Salmon got out of the car, walked up to the gate
and showed the guard his credentials. Gotay came up
behind him with several other people , commenting to these
people , "Here 's the son-of-a-bitch that caused all the
trouble this afternoon ," adding that he thought "all the god
damn gringos should be run out of Puerto Rico." As
Salmon left the plant shortly thereafter , the demonstrators
rushed at his car damaging it with rocks . According to
Salmon , Gotay was present at this time.
Joseph Rodriguez, another Wackenhut employee, corrob-
orated much of Salmon's testimony, testifying that the
Ford Torino came up twice on the left of his car in which
both he and Salmon were riding. Although he did not see
any pistol firing he did hear the radio of the lead vehicle
reporting "they are shooting at us. " Rodriguez also
testified that on August 18, he was assigned to meet a tank
truck making a delivery to Lock Joint. He met the truck
about a half a mile from the plant . There another car
approached and a man identifying himself as Gotay got
out and spoke to the truckdriver. He then told Rodriguez
not to bring the truck into the plant because they had
reached an agreement and he gave permission to bring the
truck to the plant the next day. Gotay then pointed to three
cars nearby saying, "All these are my men and I control
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them ." The truckdnver then refused to drive the truck into
the plant because of the men in the area.
2. The case of the Respondent
Luis Antonio Hernandez, called as a witness by the
Respondent, testified that he was working on August 9 for
Lock Joint. He left the plant at noon and met the strikers
who were picketing. He denied being threatened or being
prevented from going into the plant, nor did he know of
any violence. He was, however, unable to say how many
were involved in the picket line because he was "not
watching too well," nor was this witness able to recognize
the pickets, aside from one who is his coworker and
neighbor and who is not involved in this matter. Hernan-
dez testified that Lock Joint discharged him on August 27
and gave him a letter specifying the reason. He claimed
that he paid no attention to the letter because he had
another job and, therefore, did not know the reason for his
discharge. Later, however, he admitted that he took his
discharge to arbitration because he was without work. I
find his testimony to be of little probative value. His
inability to state the number or the identity of the pickets
whom he claimed to see and his contradiction concerning
his knowledge for the reason for his discharge lead me to
believe that his testimony is not to be credited.
Angel Maysonet Robles, another witness called by the
Respondent, testified that he was a driver for truck owner
Ismael Perez Souchet. He, too, testified that he was not
prevented from going in or coming out of Lock Joint, nor
was he threatened. He admitted, however, that he did not
work on August 10, allegedly because the other drivers
were not working he didn't want to work alone.
Jorge Gutierrez, another witness called on behalf of the
Respondent, was a driver for the truck owner, Nigagliom.
He testified that on August 9, working for Nigaglioni, he
went into the Lock Joint plant with nobody impeding his
entrance or exit, nor were any threats made to him.
Gutierrez further testified that he had no knowledge of any
other drivers being threatened with bodily harm or damage
to a truck. He, too, however, did not work on August 10,
claiming that he did not work because the rest of his
coworkers refused to work and he stayed away for 2 weeks.
The testimony of these three witnesses concerning the
absence of violence or threats does not negate the
testimony of others who claimed to be threatened. At most,
it merely indicates that these three employees were not
present on the specific occasions when the alleged violence
and threats occurred.
Angel Luis Bermudez, a Lock Joint timekeeper at the
Company's Hato Rey plant, testified that he learned of the
work stoppage on Saturday, August 7. Nevertheless, he
reported for work on August 9, 10, and 11 at the Hato Rey
plant. On August 12, he joined the work stoppage and
picketed at the Carolina plant of Lock Joint. He denied
anyone threatened any of the employees, but admitted that
he did not see anything on August 9, 10, and 11 at the
Carolina plant.
Longino Candelaria, called as a witness by the Respon-
dent, testified that he was an employee of Lock Joint and
reported to work on August 9 in the morning. Upon his
arrival he was notified that there was a work stoppage and,
accordingly, he went out where he met Ortiz. Ortiz told
him that he expected the cooperation of Candelana and
that there was going to be no fighting. He further testified
that nobody threatened him. Candelaria denied ever being
a delegate for Local 901. As noted earlier, however,
General Manager Walters testified that he received a
telegram from the Union notifying him that Candelana
represented the Union. Candelaria also denied that
Capllonch and Ortiz were delegates. He admitted, howev-
er, that when Ortiz told him that there will be no fighting
on the picket line, he was reading from a letter signed by
the secretary-treasurer of the Union and addressed to
Capllonch and Ortiz as "delegates" for Lock Joint. I do not
credit Candelana's testimony.
3. Analysis and conclusions
I credit the testimony of the witnesses who testified on
behalf of the General Counsel. Even were I to credit the
testimony of the witnesses who testified on the behalf of
the Respondent, I could only conclude nothing violative of
the Act occurred while they were present . Their testimony
does not contradict the testimony given by General
Counsel's witnesses. No one contradicted the threats made
to Felicita Perez, Alvarado, Quiles, Betancourt, Nigaglioni,
Ismael , or Martinez. No one contradicted the acts of
violence directed to Alvarado or the Lock Joint driver of
the cement truck-trailer. Indeed, the ones who could have
contradicted the testimony thus offered by General
Counsel's witnesses, namely Gotay, Ortiz, Capllonch, and
Cadiz, were not called by counsel for the Respondent to
testify despite their apparent availability.
Accordingly, I find that agents of the Respondent Union
threatened the above-named employees of Lock Joint if
said employees refused or failed to observe the picket line
established by the Respondent at Lock Joint, and that said
agents committed acts of violence against Lock Joint
employees for their failure to observe the picket line
established by the Respondent. Such behavior was a clear
violation of Section 8(b)(1)(A) of the Act. I.L. W. U. (Sunset
Line and Twine Co.), 79 NLRB 1487; New Power Wire and
Electric Corp., v. N.L.R.B., 340 F.2d 71; Teamsters Local
327 (Hartmann Luggage Co.), 173 NLRB 1403, 419 F.2d
1282.
CONCLUSIONS OF LAW
1. Nelson Gotay, Jaime Ortiz, Luis Capllonch, and Jose
Cadiz were at all times material herein officers and/or
agents of the Respondent Union.
2. The truck owners and the drivers they employ who
haul exclusively for Lock Joint and whose operations are
directly and intimately controlled by Lock Joint are
employees of Lock Joint within the meaning of the Act.
3. By engaging in acts of violence against nonstriking
employees, by damaging their property, and by threatening
injury to other employees, the Union has engaged in
coercive activity designed to prevent nonstriking employ-
ees from working and to deter striking employees from
returning to work. Such conduct is an unfair labor practice
in violation of Section 8(b)(1)(A) of the Act, and affects
commerce within the meaning of Section 2(6) and (7).
UNION DE TRONQUISTAS, LOCAL 901 407
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices I shall recommend that it cease and
desist therefrom and take certain affirmative action which
I find necessary to effectuate the policies of the Act.
Counsel for the General Counsel recommends the
issuance of a broad order against violence and threats of
violence, prohibiting such conduct or other infringement of
Section 7 rights of employees of Lock Joint or any other
employer in Puerto Rico. He cites the Hotel La Concha
case, supra, in which the Trial Examiner noted that this
Respondent had been found to have violated Section
8(b)(1)(A) in three previous cases decided in 1969 and
1970, each involving a different employer in other
locations in Puerto Rico, and each involving violence or
threats of violence by the Umon. The Hotel La Concha
case was a fourth such case and in that case the Board
adopted the Trial Examiner's recommendation that the
Order prohibiting such conduct by the Umon be broad and
cover employees of any employer in Puerto Rico. In
addition to the usual posting of notices, the Union was
required to mail each employee a copy of the notice.
In addition, however, counsel for the General Counsel
urges that the Order require Respondent to make whole
those employees who lost wages because Respondent's
violence and threats of violence prevented them from
working. The Act empowers the Board to make such a
provision under Section 10(c) which permits the imposition
of a backpay order against a labor organization which is
responsible for the discrimination suffered by the employ-
ee. In Long Construction Company, 145 NLRB 544,
however, the Board rejected the Trial Examiner's recom-
mendation that the Umon in that case make certain
employees whole for loss of wages resulting from the
unlawful acts of the Union. In that case the Board noted
that the cease-and-desist order is well designed to prevent
the recurrence of the unfair labor practices and the
satisfaction of individual claims, which are primarily
private in nature, is preserved by the individual's resort to
those remedies traditionally used to process claims result-
ing from another's tortious conduct. Ordinarily such
reasoning would be more than adequate to limit the
remedy to a cease and desist Order. I note, however, that in
the case of this Union, which is the Respondent herein, at
least four cease-and-desist orders have been issued against
it within the past 2 years. None of them have apparently
had any noticeable effect. In each instance the victims of
the Union's unlawful behavior have been relegated to
private law suits, if indeed, they sought any redress. Where
as here, the Union has repeatedly shown a disregard of its
legal obligations, I find no reason to accommodate it
further by relieving it from the obligation that it has
towards its victims and providing for it still another means
of evading its responsibilities, since many of the victims
will not have the inclination or the means to pursue a
2 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
remedy at court in separate litigation . I, therefore, will
recommend that the Respondent Umon be required to
make whole those employees of Lock Joint who have
suffered a loss of wages by reason of the Union 's unlawful
conduct in preventing them from working.
Upon the foregoing findings of fact , conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 2
ORDER
The Union, its officers, agents, and representatives,
shall:
1. Cease and desist from:
(a) Restraining or coercing employees of Lock Joint Pipe
& Co. of Puerto Rico, or the employees of any other
employer in Puerto Rico, from engaging in their employ-
ment, particularly by the use of force or violence or threat
of force or violence upon any employees, or causing or
threatening to cause injuries to employees or damage to
their property.
(b) In any other manner restraining or coercing employ-
ees of Lock Joint Pipe Co. of Puerto Rico, or the
employees of any other employer in Puerto Rico, in the
exercise of their rights under Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Make each employee of Lock Joint Pipe & Co. of
Puerto Rico whole for any loss of wages he may have
suffered by reason of the Respondent's unfair labor
practices in restraining and coercing such employee in the
exercise of the Section 7 rights.
(b) Post in its business office, meeting hall or other
conspicuous places where notices to members of the Union
are customarily posted copies in English and Spanish of
the attached notices marked "Appendix."3 Immediately
upon receipt of copies of said notice on forms to be
provided by the Regional Director of Region 24, the Union
shall cause copies to be signed by one of its authorized
representatives and posted in the places designated in this
subparagraph, the posted copies to be maintained for a
period of 60 consecutive days thereafter. Reasonable steps
shall be taken by the Union to insure that said notices are
not altered, defaced, or covered by any other material.
(c) Deliver to the Regional Director of Region 24
sufficient signed copies of said notice, in English and
Spanish, for posting by Lock Joint Pipe & Co. of Puerto
Rico at all locations where notices to employees of the
Company are customarily posted, if the Company is willing
to post them.
(d) Mail copies of said signed notice in English and
Spanish to each employee of Lock Joint Pipe & Co. of
Puerto Rico.
(e) Notify the Regional Director of Region 24, in writing,
3 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted pursuant
to a Judgment of the United States Court of Appeals enforcing an Order of
the National Labor Relations Board "
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
within 20 days from the date of receipt of this Decision what steps the Union has taken to comply herewith .4
4 In the event that the recommended Order is adopted by the Board after date of this Order what steps the Respondent has taken to comply
exceptions have been filed, this provision shall be modified to read "Notify herewith "
the Regional Director for Region 24, in writing, within 20 days from the
1