Aacon Contracting Co., Inc.

National Labor Relations Board - Board Decisions

Jun 17, 1960

127 N.L.R.B. 1250 (N.L.R.B. 1960)

1250 DECISIONS OF NATIONAL •LABOR RELATIONS BOARD
Aacon Contracting Company, Inc. and Ivan Sparks, Manuel
Rosa, Ernesto Morales , Ernesto Santiago , Carlos Dominguez,
and Manuel Rosa and Local 1205, International Brotherhood
of Teamsters, Chauffeurs,. Warehousemen , and Helpers of
America, Party in Interest . Cases Nos. 2-CA-648, 2-CA-6434,
2-CA-6435, 2-CA-6490, 2-CA-6612, and 2-CA-6623. June 17,
1960
DECISION AND ORDER
On January 26, 1960, Trial Examiner Thomas S. Wilson issued his
Intermediate Report 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 copy of the
Intermediate Report attached hereto. Thereafter, the Respondent,
the General Counsel, the Party in Interest, and the Association of
Catholic Trade Unionists filed exceptions to the Intermediate Report
and supporting briefs.
- Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Rodgers, Jenkins, and
Fanning].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and briefs, and the-entire record in the
case,' and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations.2 .
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
'As the record, the exceptions, and the briefs, in our opinion, adequately present the
issues and the positions of the parties, the Respondent's request for oral argument is
denied.
2 After initially, and correctly, finding that the Respondent violated Section 8(a) (2)
only by virtue of unlawful assistance and support to Local 1205, the Trial Examiner at a
later point inadvertently described Local 1205 as "company dominated," and inadvertently
added "domination" to his Section 8(a) (2) Conclusion of Law The first inadvertence is
corrected to read "company assisted and supported," and the second inadvertence is
hereby deleted
The General Counsel excepts to the Trial Examiner's failure to find, as alleged in the
complaint, that the Respondent, by requiring as a condition of continued employment
that employee Santiago pay membership chits to Local 1205 for nearly a 2-year period dur-
ing which he was not employed by the Respondent, and by first paying such dues itself
and then deducting the amount of such dues from Santiago's wages, violated Section
8(a)(1), (2), and (3). We so find. See Spector Freight System, Inc, 123 NLRB 43.
To remedy this unfair labor practice, we shall order the Respondent to reimburse Santiago
for such dues which were illegally exacted from hum. Cf J S Brown-E F. Olds Plumbing
& Heating Corporation, 115 NLRB 594
In view of our agreement with the Trial Examiner's ultimate finding that the Charging
Parties were not "tronting" for Actu, we find it unnecessary to pass upon his prior finding
that in this case at least Actu must be found to be a labor organization.
127 NLRB No. 159.
AACON CONTRACTING' COMPANY, INC. - 1251
Relations' Board hereby orders that, the Respondent, Atcon Contract-
ing Company, Inc., Borough of Brooklyn, city and State of New
York, its officers, supervisors; agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging concerted activities of its employees or their
membership in a labor organization other than Local 1205, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen, and
Helpers of America, by discriminating in regard to the hire and
tenure or any term or condition of employment of any of its
employees.
- (b) Contributing assistance or financial support to Local 1205,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen,
and Helpers of America, 'or any other labor organization.
(c) Interrogating its employees regarding the concerted activities,
affiliations, or sympathies of any of its employees.
(d) Threatening its employees that it would visit reprisals upon
its employees or close the plant if they joined or assisted in concerted
activities or in a labor organization other than Local 1205, Interna-
stional Brotherhood of Teamsters, Chauffeurs, Warehousemen, and
Helpers of America.
(e) Requesting or permitting any of its employees to report to the
-Respondent on any concerted activity or upon the concerted or union
activities of any of its employees.
(f) Threatening' its employees with arrest or jail for engaging in
-concerted or union activities.
- (g) Requesting any of its discharged employees to sign statements
authorizing the withdrawal of their names from charges filed with
,the Board against Respondent.
(h) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to form
'labor organizations, to join or assist labor organizations other than
-Local 1205, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen, and Helpers of America, to bargain collectively
.through representatives of their own choosing, and to engage in other
concerted activities for the purposes of collective bargaining or other
.mutual aid or protection, or to refrain from any or all such activities,
• except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of em-
ployment as authorized in Section 8(a) (3) of the Act, as modified by
the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Withdraw and withhold recognition from Local 1205,_ Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen, and
Helpers of America, as the representative of any of Respondent's em-
1252 DECISIONS ;OF ,NATIONAL LABOR RELATIONS. BOARD
ployees at its Brooklyn plants for the purposes of contracting, nego-
tiating, or otherwise dealing with the Respondent with respect to
wages, rates of pay, or any other term or condition of employment,
unless and until said local shall be certified as such representative by
the Board.
- (b) Offer to each of the employees named in the section of the
Intermediate Report entitled "The Remedy" immediate and full rein-
statement to his former or substantially equivalent position without
prejudice to his seniority or other rights and privileges previously
enjoyed and make each of them whole for any loss of pay suffered by
him as a result of a discrimination against him, in the manner de-
scribed in said section entitled "The Remedy."
(c) Reimburse Ernesto Santiago for $84 in dues, covering a period
during which he was not employed, which Respondent paid to Local
1205 and then deducted from his wages.
(d) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records and reports,
and all other records necessary to analyze and compute the amount
of backpay due under the terms of this Order.
(e) Post at its plant in the Borough of Brooklyn, city, county, and
State of New York, copies of, the notice attached hereto marked
"Appendix." I Copies of said notice, to be furnished by the Regional
Director for the Second Region, shall, after being duly signed by the
Respondent, be posted by it immediately upon receipt thereof and
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 the Respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
(f) Notify the Regional Director for the Second Region, in .writ-
ing, within 10 days from the date of his Order, what steps have been
taken to comply herewith.
3In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
.Pursuant to a Decision and Order 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 :
• , i t
WILL NOT discourage concerted activity or membership in
NYE
any, labor organization other than Local 1205, International
= AACON CONTRACTING COMPANY, INC. 1253
Brotherhood of Teamsters, Chauffeurs, Warehousemen, and
Helpers of America, or encourage membership in this last-named
organization, by discriminating against employees in regard to
hire, tenure, or any term or condition of employment, except to
the extent authorized by Section 8(a) (3) of the Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
WE WILL NOT interrogate our employees regarding their con-
certed activity, engage in attempted surveillance of such activity,
threaten them with arrest or jail for engaging in such activity,
utter threats of economic or other reprisals to discourage con-
certed activity or membership in a labor organization other than
Local 1205, and will not in any other manner interfere with,
restrain, or coerce our employees in the exercise of their statutory
rights.
WE WILL withdraw and withhold recognition from said Local
1205, or any successor thereto, unless and-until it shall have been
certified as the collective-bargaining representative of our em-
ployees by the National Labor Relations Board.
WE WILL offer each of the following named employees immedi-
ate and full reinstatement to his former or substantially equiva-
lent position, without prejudice to his seniority and other rights
and privileges, and will ^ make each of them whole for any loss
of pay he may have suffered by reason of our discrimination
against him : Ivan Sparks, Ernesto Morales, Manuel Rosa, Gabriel
Rosa, Florentino Martinez, Edward Soney, Gilberto Pratts,
Ernesto- Santiago, Juan Figueroa, .Carlos Dominguez, Isaias
Suarez, Francisco Caneda, Miguel Ruiz, Israel Colon, Marcelino
Cordova, Ricardo Pacheco, Juan Acevedo, Victor Calcano, Am-
brosio Santana, Nemesio Alverio, Herbiberto Calcano, Hibolitc
Rios, Antonio Agosto, Nestor Hernandes, Francisco Lopes.
WE WILL reimburse Ernest Santiago for $84 in dues, covering
a period during which he was not employed, which we paid to
Local 1205 and then deducted from his wages.
All our employees are free to become, remain, or refrain from be-
coming or remaining members of any labor organization and to engage
in concerted 'activities, except to the extent that this "right may be
effected by an agreement in conformity with Section 8(a) (3) of the
National Labor Relations Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
AACON CONTRACTING COMPANY, INC.,
Employer.
Dated ------------- ---_ By--------------------==---------------
(Representative ) ( Title)
This notice must remain posted for 60 days from- the date hereof,
and must not be altered, defaced, or covered by any other material.
1254 DECISIONS OF, NATIONAL LABOR RELATIONS-BOARD
- INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon separate charges filed by Ivan Sparks on February 19, 1959, by Ernesto
Morales on February 24, by Manuel Rosa. on February 24 and May 18, by Ernesto
Santiago on March 17, and by Carlos Dominguez on May 14, the General Counsel
of the, National Labor Relations Board, herein called respectively, the General
Counsel i' and the Board, by the Regional Director for the Second Region (New
York, New York), issued complaints dated April 30 and June 30, 1959, together
with an order of the Regional Director consolidating said complaints for hearing,
against Aacon Contracting Company, Inc., hereinafter referred to as the Respondent
or Aacon. The consolidated complaints • alleged that the- Respondent had engaged
in and was engaging in unfair labor practices affecting commerce within the meaning
of Section 8(a)(1.), (2), and (3) and Section 2(6) and (7) of the Labor Manage-
ment Relations Act, 1947, 61 Stat. 136,, herein called the Act. Copies of the
charges, the complaints, the order of consolidation, and the notice of hearing thereon
were duly served upon the Charging Parties, the Respondent, and Local 1205, inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of
America, as a' Party in Interest, hereinafter called Local 1205.
The Respondent duly filed its answer admitting certain allegations of the com-
plaint but denying the commission of any unfair labor practices and specifically plead-
ing as a first defense that all the individual employees allegedly discharged by the
Respondent were barred from reinstatement because they were acting as "fronts"
for a noncomplying labor organization known as the Association of Catholic Trade
Unionists, hereinafter known as Actu, and as a second defense that the same indi-
viduals were barred from reinstatement by reason of their own misconduct.
Pursuant to notice, a hearing thereon was held at New York, New York, from
July. 20 to August 12 and was thereafter reopened upon motion of the Respondent
on September 23, 1959, before the duly designated Trial Examiner. All parties
appeared at the hearing, were represented by counsel, and afforded full opportunity
to be heard, to produce, examine and cross-examine witnesses, to introduce evidence
material and pertinent to the issues, and were advised of, their right to argue orally
upon the record and to file briefs and proposed findings and conclusions or both.
A brief was received from the Respondent on October 14. The General Counsel
filed no brief.2
'
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. BUSINESS OF THE RESPONDENT
The complaint alleged, Respondent admitted, and the Trial• Examiner finds that
Aacon Contracting Company, Inc., is and has been at all times herein mentioned, a
1 This term specifically includes the attorney appearing for the General Counsel at
the hearing '
2 Immediately after all parties had rested at 4 •30 p in on August 12, Respondent waived
oral argument but the General Counsel insisted, to the point of citing authority there-
for,' on his right to be allowed to argue the case orally at that time. The Trial Examiner
denied hint that right on the ground that, at that time and without the transcript of the
last 10 days of the hearing, such oral argument would be futile At the same time the
Trial Exam in er' suggested or ordered the General Counsel to file a brief. Subsequently
no notion to reopen the hearing for oral argument was made nor was a brief filed by
General Counsel.
As a reading of this Intermediate Report will indicate, the present was a long, eompli;
cated, and bitterly contested case Involving several unusual features. If the General
Counsel considers a case worth presenting at all, it seems to this Trial Examiner that he
should present it fully and completely including briefs It also seems to this Trial
Examiner that a General 'Counsel who ends His participation in a case with the mere
presentation of evidence has performed only half his duty to his client and to the trial
tribunal
The-Trial Examiner does not intend this as personal criticism of the General Counsel
involved because it has come to his attention, both in this and In other cases, that some
rule or understanding exists that, on the pretext of saving time and labor, a General
Counsel at the hearing will make an oral argument but will not prepare a•brief. In the
ordinary case this may be a defensible policy. In a case such as the instant one, it is not.
-- AACON, CONTRACTING COMPANY, INC. 1255
corporation duly organized and existing by virtue of the laws of the State of New
York. At all times herein mentioned, Aacon has maintained its principal office
and place of business at 145 Wolcott Street, in the Borough of Brooklyn, city of
New York, State of New York, and another plant and place of business at 144 King
Street•in said borough, city, and State and is now and has been continuously engaged
at said places of business and facilities in the business of providing and performing
disassembling, processing, and crating of machinery and vehicles for export and
related services. -
During the past year Aacon, in the course and conduct of its business operations,
caused to be purchased, transferred, and delivered to its places of business, lumber,
wood products, and other goods and materials valued at in excess of $500,000
which were transported to said places of business in interstate commerce directly
from States of.the United States other than the State of New York.
- At all times material herein Aacon is and has been engaged in commerce.
If. THE LABOR ORGANIZATION INVOLVED
Local, 1205, International Brotherhood of Teamsters, Chauffeurs, Warehousemen,
and Helpers of America, is a labor organization within the meaning of Section 2(5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The facts
Local 1205
For so long a time that the memory of those connected with this hearing could
not recall to the contrary, the production and maintenance employees of the Re-
spondent have been represented by, and the Respondent has had labor agreements
with, a labor organization of varying names and affiliations but always headed by
one Sigmund Brovarski. For ' the same period Local 807 has represented the
Respondent's drivers. When John and Robert Cadillac, brothers and the present
operating officers of the Respondent, came into control of the Respondent upon the
death of their father, they "inherited" these unions and agreements along with the
rest of the business. None bf the witnesses at. the present hearing was able to
recall when and under what circumstances recognition of these labor organizations
had been granted. .
The record in, this case discloses that at least from August 5, 1955, every time
that Local 1205 went through another of its numerous changes of local number or
affiliation, officials,of Respondent would pass out, and have the employees execute,
applications for membership cards and dues deduction authorizations for the new
union organization. New employees were also presented with these same docu-
ments together with the other regular hiring forms at the time of hire. In addition
to these union forms the Respondent in similar fashion had its employees execute
a printed form on letterhead paper of the Respondent which, in English,3 read as
follows:
I, -------------------- - ---------- hereby authorize Aacon Contracting
Co., Inc. to pay the sum of ($4) per month to Local 1205 Teamsters Union on
my behalf in full payment of my membership dues. -
I understand fully that this is a benefit extended to me by said company
with no obligation on my part and in no way does it limit or curtail any of the
rights and/or privileges guaranteed me by my membership in the Union.
It is further understood that this agreement will remain in force until termi-
nated at any time in writing by either myself or Aacon Contracting Co., Inc.
Dated .------------------------------ Signature ----------------- 4
This practice of paying its employees' dues to Local 1205 without deducting same
from the wages of its employees was' also inherited by the Cadillac brothers when
they took over the operation of the Company. It was stipulated in this record that
the Respondent itself in fact paid Local 1205 the monthly dues for each of its
employees out of its own funds and without reimbursement by the employees. This
practice, continued at least until the employment of Respondent's present labor
attorney who promptly advised that the practice be discontinued.
' This printed form also contained the same verbiage in Spanish. These forms were in
use by the Respondent at least as late as January 15, 1959.
4 Respondent had this same form printed on the letterhead of its companion company,
Heavy Lift Service Co ., for execution by employees of that firm.
1256 DECISIONS OF NATIONAL ' LABOR RELATIONS BOARD
When , about 1956 or 1957, Local 1205 began sending receipts for the quarterly
payment of dues, Respondent attached one of these said receipts to the current pay-
check of each of its individual employees . In addition union membership books
and buttons were passed out to the employees by Respondent officials.
Although the record indicates that sometime in the dim distant past Brovarski had
appointed one Joe Malone as the Union's steward in the plant , few, if any, of the
employees knew that Malone was such steward. In fact, many of the employees
either did not know or had forgotten that they were supposed to be members of
Local 1205. The record indicates that the first meeting of Local 1205 which any of
the employees attended occurred on February 11, 1959, and that the first tangible
knowledge that the employees had of their union affiliation was when the Company
began to attach the dues receipts to the company paychecks.
Although Respondent and Local 1205 have apparently executed contracts every
few years purporting to cover the Respondent 's employees , there is no showing in
this record that Brovarski or his union ever sought , or permitted , assistance or
suggestions from any of the employees in the negotiation of these contracts . In fact,
the first time the employees ever saw one of those contracts was shortly after
February 18, 1959. Thus in showing "that this employer has been treating its
employees well," Robert Cadillac was able to testify "to begin with, the actual spirit
and interpretation of the contract [with Local 1205] was far more liberal than was
actually [written] there," and to cite the fact that every employee "has always been
paid over and above the contract wage figure" and that the employees received time
and a half for work on more holidays than provided for in the contract . It might
be argued that these so-called "benefits" resulted as much from inadequate repre-
sentation as from the beneficence of the employer.
According to the testimony of Robert Cadillac, the Respondent made it a practice
to settle all grievances unilaterally on,the floor of the shop to the satisfaction of
the employees so that the Union would not be called in to handle grievances. In
fact, in February and March 1959, the Cadillacs sharply criticized certain employees
for having taken grievances to either the New York State Labor Relations Board
or to Brovarski before coming to them with their complaints on the grounds that
it "embarrased the company with the Union." Other employees were told "it had
hurt the company with the Union" for them to have presented the problems of the
shop to the Union. Apparently this state of affairs was satisfactory to Brovarski and
his union because there is no ' showing that Brovarski was ever in the Respondent's
plant, at least to see any of the employees whom he purported to represent, until
February 19, 1959. And on that occasion Brovarski appeared in response to a
request from the Cadillacs to help Respondent in disciplining an employee who had
presented a petition to the Union.5
Rosa's First Petition
When the conditions in the shop and the above-cited lack of representation became
sufficiently irksome to some of the Puerto Rican employees of the Respondent,
employees Manuel Rosa 6 and Florentino Martinez on January 17, 1959,7 sought
advice from one Lumen Roman, a reporter on labor matters in the Spanish language
New York newspaper El Diario. After listening to their troubles, Reporter Roman
advised them to seek the assistance of the Association of Catholic Trade Unionists
whose office is located at 327 Lexington Avenue, New York City, whose constitution
provides in pertinent part as follows:
Article II
Purpose
The purpose of this Association shall be to foster and spread in the American
labor movement sound principles of trade unionism and to make Catholic social
principles an effective force for sound unionism and industrial relations.
Its purpose shall be to enroll members of established trade unions and to in-
struct them in Catholic social principles toward the end that these principles
5 It is true that sometime about January 24, 1959, the same employee , Sparks, had
appealed to Brovarski whose name and address he had secured through the assistance of
the New York State Labor Relations Board for help in securing reinstatement at the
Respondent ' s plant On this occasion , as will be found hereinafter , Brovarski was able to
effect the desired reinstatement by one short telephone call.
6 Unless otherwise specified , the name "Rosa" will refer to Manuel Rosa hereinafter and
not to his brother Gabriel. `
7 All dates hereinafter are in the year 1959 unless otherwise noted.
AACON CONTRACTING COMPANY, INC. 1257
may be widely disseminated among the working groups of metropolitan New
York. It shall not be the purpose of the Association to encourage or foster
trade unions organized on sectarian lines.
To accomplish these purposes, the Association shall engage in the following
activities: 1. Enroll into membership in this Association all persons who sub-
scribe to its principles and purposes and qualify for membership. 2. Promote
and extend the benefits of unionization to all working people. 3. Establish
schools and utilize other educational means to promote knowledge of Catholic
social principles. 4. Work toward a reconstruction of the social order through
the promotion of the programs outlined in Papal Encyclicals. 5. Sponsor
corporate communions, retreats and other spiritual activities for workers.
Article III
Membership
There shall be two kinds of members, General and Associates. Qualifications
for General Membership: An applicant: (a) Shall be a practicing Catholic.
(b) Shall be a member of a bona fide union, unless the union in the industry
where a member works is, in the opinion of the Executive Board, hopelessly
dominated by racketeers or communists. .
Qualifications for Associate Membership: An applicant shall comply with
(b), (c), and (d) above. Notwithstanding any other provision herein con-
tained, membership of both kinds shall be open to non-trade union members on
the basis of their work in behalf of the trade union movement, provided there
is no trade union for which they are eligible.
Article IV
Obligation of Members
1. A general member shall: (a) Be a practicing Catholic. (b) Actively
participate in the affairs of the Union of which he is a member. (c) Attend
all activities of the Association. (d) Take a course of basic instructions pre-
scribed by the Executive Board. (e) Subscribe to THE LABOR LEADER.
(f) Pay dues regularly.
Article VI
Officers and their duties
* * * * * * *
3. THE SECRETARY-TREASURER shall: (a) Be responsible for the proper
conduct of the administrative affairs of the Association and be custodian of its
properties. (b) Investigate labor disputes, issue statements thereon, and engage
in such activities as are deemed advisable after consultation and the approval
of the Executive Board.
Article XII
Publications
(a) The Association shall publish a newspaper known as The Labor Leader
which shall report labor news, as well as disseminate Catholic social
principles. .. 8
At•the Actu office where Rosa and Martinez went on January 19, they met a young
gentleman named Daniel J. Schulder, Actu's part-time secretary-treasurer and full-
time college student (until May 1959). Schulder suggested that they return with a
committee of workmen. This they did on January 23 when they discussed their
shop problems with Schulder who advised that they file a decertification petition
against Local 1205 so that either Local 1205 would give them some assistance or
they could get rid of the organization! For this purpose Schulder gave Rosa two
8 Actu will be more fully discussed hereinafter in a discussion of the question as to
whether Actu is a labor organization , which Rdspondent contends and which Actu denies.
1258 DECISIONS-OF NATIONAL LABOR RELATIONS BOARD
mimeographed petitions with places' for signatures which read-until the blanks
were filled out in pencil by Schulder subsequently-as follows:
- We, the undersigned employees of---------------------------- do hereby
authorize and ratify any act or acts taken on the part of--------------------
---------- in petitioning the National Labor Relations Board for an election
to decertify ------------------------------ as our bargaining agent.
On or before January 26, Rosa succeeded in securing the signatures of some 30-odd
employees to this petition either in the plant, at the homes of the employees, or on
the street. On the 26th, Rosa returned said signed petition which Schulder then
completed in pencil so that it read as follows:
We, the undersigned employees of Aacon Contracting Co., 145 Wolcott Street,
do hereby authorize and ratify any act or acts taken on the part of Daniel
Schulder in petitioning the National Labor Relations Board for an election to
decertify 1205 I.B.T., Brooklyn, New York, as our bargaining agent .9
On January 28, Schulder filed with the New York Regional Office of the Board
a petition to decertify Local 1205 signed "Daniel J. Schulder, Secretary-Treas. Assoc.
of Catholic Trade Unionists" as an "individual" with an address at "327 Lexington
Avenue, New York 16, New York."
Respondent was served with a copy of this decertification petition on January 30.
In the absence of Robert Cadillac, who was then on a vacation which extended
until February 16, John Cadillac conferred with Board Field Examiner Schneider
regarding this petition. Ultimately this petition was dismissed by the Regional Office
as untimely filed.
Sometime prior to February 16, employee Ramon Ortiz, reported to "Sam"
Camerone, Respondent's plant superintendent, that Rosa and a group of other em-
ployees had visited his home one night to secure his signature to a petition, that
he did not want to sign this petition because it was "against the Company's interest,"
but that he had signed the same because he had been "threatened" by the visitors.
Camerone did nothing about this information until at least February 16.
The Sparks' Petition
On or about January 21, Respondent recalled Ivan Sparks to work along with
two other laid-off employees.10 On January 24, Respondent again laid off Sparks
and the two other employees.
After this second layoff, Sparks went -to New York State Labor Relations Board
for advice and was sent by a field examiner there to Brovarski who, as secretary-
treasurer of Local 1205, was the highest official in that organization. Brovarski
telephoned John Cadillac requesting the reinstatement of Sparks on the ground that
he had been laid off out of seniority. As a result Sparks was reinstated on
February 4.11
When Sparks reported for work on February 4, John Cadillac voiced strenuous
objection to the fact that Sparks had gone to the 'State Labor Relations Board and
to Local 1205 in his efforts to secure reinstatement and reminded Sparks that his
door was always open so that Sparks should have come to him before going to the
State Board or to Local 1205 as it "embarrassed" Respondent with the Union.
Having heard that Sparks had been arguing with employees, John Cadillac assigned
him temporarily to work on a wash rack, a new installation, so that he would be off
by himself and not be able to talk to other employees.
Sometime prior to February 11, Sparks prepared a petition addressed to Local
-1205 which he had typed up in both English and Spanish. Among other demands
made in this petition were the following: (1) The employees wanted to pay their
own union dues; (2) the removal of the present shop steward and the election by
the employees of a new one; (3) the lunch hour extended from 30 minutes to an
hour; (4) -a lunch break at 5 p m. if overtime was worked; (5) a union meeting
for the company employees; and (6) more representation and protection from
Local 1205.
After showing this petition to Foreman John Hamm, Sparks took it to the
dressing room before work and succeeded in securing the signatures of 50-some
i
'The second petition was exactly the same except that it referred to _"Heavy Deft
Service Co., 145 Wolcott Street, B'klyn. N.Y " -
10 Sparks had been laid off in November by the Respondent.
' With his brother off on a vacation, John Cadillac was in charge' of the plant although,
when Robert was working, he took care of the operations of the plant while John spent
his efforts in securing work.
AACON' CONTRACTING COMPANY' INC. 1259
employees thereto. Rosa also assisted Sparks in getting some signatures from
Spanish speaking employees at their homes. A few, including Charles •Barrett,
signed this petition at Sparks' place of work. The testimony of the Cadillacs
showed that they knew that Sparks had been securing signatures to this petition
in the dressing room before work. It was "pretty common knowledge," to use
Robert Cadillac's words, that petitions were being signed by the employees and
that Sparks was the author of one such petition.12
On February 11, Sparks went to Brovarski's office where he presented this signed
petition to Brovarski who thereupon told Sparks that there was to be a union
meeting at the SIU hall in Brooklyn that very evening and requested Sparks to get
a group from the Respondent's plant to come to this meeting so that they could
discuss the petition. Although Sparks succeeded in getting about 20 employees
to attend, Brovarski stated that there were not enough of the Respondent's em-
ployees present to determine anything that evening, but agreed to hold a meeting
of the employees at the shop on February 16 to discuss the petition.
Robert Cadillac returned from his vacation to resume running the plant on
February 16. He was promptly notified by his brother, John. of the filing of the
decertification petition by Actu and the fact that upon' the request of Local 1205,
Sparks had been put to work on the wash rack. In addition Robert Cadillac
testified that upon his return he noted a definite worsening of the morale of the
plant.l3
That same day Brovarski made one of his infrequent visits to the Respondent's
plant and, according to his and Robert Cadillac's testimony, inquired if the Respond-
ent were paying the "dues for its employees. When at first Robert Cadillac denied
that fact, Brovarski pulled a paper from his'pocket and stated that he had "30 or 40
men who might give you an argument on that." 14 Although there is some doubt
of its accuracy, Brovarski claimed that at this time he ordered Cadillac to cease
paying the dues for the employees "immediately."
Brovarski returned to the Respondent's plant again on February 18. The record
is indefinite as to whether Brovarski was at the plant on February 17.
But Brovarski's return to the Respondent's plant on February 18 was caused by
a telephone call from Robert Cadillac telling him that, he, Cadillac, was having
trouble with Sparks. When Brovarski arrived at the plant, he and Robert Cadillac
went out to the wash rack where Cadillac accused Sparks •of failing to wash the
trucks clean. Brovarski demanded to know why this was so of Sparks and what
he had to say for himself. At this point, the testimony of the three witnesses to
the episode became so confusing as to make it almost impossible to tell who said
what or in what sequence. However, it is clear that mention was made in Cadillac's
presence of the petition and of Brovarski's promise to hold a meeting on January
16 to discuss that petition.15 It is also clear that the parties there discussed the
deficiencies of this new wash rack. It is further clear that the meeting ended with
12 A few of the Respondent's supervisors denied any such knowledge. In view of the
Cadillac testimony, the Trial Examiner could not credit these denials
"Foreman "Rocky" Buetti testified that he had noted this same change in morale when
he returned from his vacation about January 16. Apparently Robert Cadillac had not
noted the change at that time
14 Robert Cadillac so testified during his cross-examination In his examination Brovar-
ski failed to recall 'any such incident. However, from this and other parts of Brovarski's
testimony, it became quite clear that candor was not one of Brovarski's outstanding
characteristics
Both Brovarski and Cadillac denied that Brovarski had ever showed Cadillac the peti-
tion or supplied him with the names of the persons who had signed the petition. How-
ever, it is clear from Robert Cadillac's testimony that he knew that,Brovarski had a
signed petition and he also knew the contents of that petition. It is, therefore, hard to
believe that Robert Cadillac was ever in much doubt as to the identity of the signers of
the petition especially as Brovarski had that petition in his pocket when he called upon
Cadillac on February 16. This is of little significance in view of the admission by Robert
Cadillac that the existence and execution of the three petitions by the Respondent's em-
ployees was "common knowledge" and that it was well known that Sparks and Rosa were
the persons responsible therefor.
As a matter of fact, the Trial Examiner found Robert Cadillac, after he voluntarily
corrected certain parts of his testimony, to be quite an honest-though voluble-witness
on most matters The same cannot be said about Brovarski.
15 It seems logical that Sparks brought up these two matters, because Brovarski testified
that, in his,opinion, Sparks "did not make sense" when he, Brovarski, kept asking for
"something to defend" Sparks with
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brovarski telling Sparks in no uncertain terms that he was to do his work and that
the Union would not stand for his "featherbedding."
While these persons were discussing the cleaning of the trucks, employee Ernesto
Morales came up to drive off one of the trucks Sparks had just cleaned. When
Brovarski saw Morales, he turned to Cadillac and said that "Sparks and Morales
started all this trouble with the Union." 16, After Sparks had promised to do his
work better, Cadillac and Brovarski left the shop.
- A few minutes thereafter Robert Cadillac walked into the wash shop, stopped
Sparks from washing trucks, and said, "Sparks, why don't you tell the men to
forget all about it and come into the office and we will try to settle the grievances."
When Sparks said that he could not do that, Cadillac reminded him that the trucks
were still coming into the shop dirty, smiled, and walked away.
That afternoon, "Rocky" Buetti, the foreman, brought Sparks an insurance card
to sign. When Sparks noted that his occupation was listed thereon as "washer,"
he told Buetti that he could not sign because that was not his occupation.
A few minutes later Cadillac and Buetti returned to the wash rack where Robert
Cadillac said, "Sparks, 1 ,bring in Rocky here as a witness. I am firing you. Your
work is unsatisfactory. We want you to go back to the Labor Board." Sparks
was paid off and has never been reinstated since.
The next day at 4:30 p.m., after 11/2 hours of overtime work, Ernesto Morales
reported to his foreman and to Sam Camerone that he was not feeling well and could
not work another hour of overtime as he had been ordered to do. Camerone said
he would have to see Cadillac about the request. Morales went and got his coat.
Cadillac and Morales met near the timeclock where Cadillac discharged Morales
on the ground that Morales had "quit" by putting on his coat. Morales has not
been reinstated since.
Rosa's Second Petition
On February 18, Robert Cadillac spoke at a "supervisors meeting" which was held
daily for the half hour preceding 7 a.m. when the plant officially opened for work.
On this occasion he told the supervisors, who actually were leadmen and not super-
visors within the meaning of the Act, that he knew that some of the employees were
trying to get another union in the plant but that there was no need for that as the
plant already had a union , a union "inherited" with the business. Cadillac also
remarked about the possibility of closing the plant if such a new union came in
because the Cadillacs already had their money in their pockets.
That afternoon Sparks was discharged.
That same afternoon after work Robert Cadillac had another meeting, this time
with all the employees of the plant. On this occasion he stated that "some of the
men" had "embarrassed the company with the union" by telling Local 1205 that
Respondent was paying the dues for its employees, that because of Respondent's
bookkeeping system Respondent could not deny that fact to the Union, and, there-
fore, the employees would have to start paying their own dues which would cost
each man $48 per year. Again Cadillac told the employees that they did not need
another union in the plant as they already had a union. And again he spoke of
the possibility of closing the plant. In addition he showed the employees the Com-
pany's underlying records proving the payment of the dues to the Union together
with'the then existing contract with Local 1205 which he left with them for their
perusal. This was the first time the employees had seen the contract.
In his testimony Robert Cadillac originally denied having ever threatened to
close the plant but further examination brought from him the admission that during
individual interviews and plant meetings he had, in fact, threatened to close the
plant at various times but he claimed that these threats were all conditioned on
various contingencies: (1) if the employees could not get the work out as required
by the customers; (2) if the employees could not work "in peace"; or (3) if Respond-
ent was forced "to knuckle down" to a Communist union which was the way he
described the only organizations in which the employees had shown an interest,
Actu and District 65. In fact, Cadillac told the employees that in labor union
circles Actu was known as the "Catholic commies" 17 and, as proof that District 65
was also Communist, he posted reprints of newspaper articles on the plant bulletin
1 Robert Cadillac denied having heard this remark and Biovarski denied having made
it. This conflict will be discussed more fully hereinafter.
17 The Cadillacs had also sought assistance against Actu from the Catholic Chancery in
New York. At their request Monsignor O'Brien wrote them a letter on the Chancery
stationery indicating that Actu was composed only of lay Catholics who sometimes did
things without the approval of the Chancery. The Cadillacs posted this letter on the
plant bulletin board.
AACON CONTRACTING COMPANY, INC. 1261
board indicating that District 65 was Communist dominated. In the light of these
admissions the Trial Examiner cannot find that the employees' interpretation of
these remarks as threats to close the plant if the employees brought in a union
other than Local 1205 was unreasonable and accordingly, must find that Robert
Cadillac did in fact threaten to close the plant if the employees brought in a union
other than Local 1205.
On the afternoon of February 19, Morales was discharged as aforesaid.
While Sparks and Morales were having their difficulties with Respondent, Rosa
and his friends continued their consultations with Actu. Early in February, follow-
ing the dismissal of the first decertification petition, Schulder gave Rosa new petitions
exactly like those described supra and the two Rosas, Martinez, Santiago, Pratts, and
Soney again set forth to secure the necessary signatures thereon by soliciting their
fellow employees on street corners and at their homes. This time, however, the
Respondent received no more reports that employees were being threatened.
On the morning of February 19 Sam Camerone came to Rosa's work place
and asked Rosa if he had signed a petition. When Rosa denied having done so,
Camerone urged him to think carefully and to try to remember if he had not in fact
signed. Rosa reiterated his denial.18
That afternoon Robert Cadillac had Rosa called to his office where he asked
Rosa if he had signed any "papers and cards." 19 Rosa continued his denials.
Cadillac then explained that the Respondents were in difficulties which might land
them in jail, needed Rosa's help, and asked him to try to find out what was wrong
in the plant and to report back to Cadillac if he found out anything. Rosa promised
to try. On this occasion Cadillac showed Rosa the union contract and the dues
payment records to Local 1205 as he had done at the previous afternoon meeting
of the employees.
Following the interview with Rosa, Santiago was called to Robert Cadillac's
office where he also was asked if he had signed any papers and cards. Finally
Santiago acknowledged that he had signed a petition because, as a proud Puerto
Rican, he wanted to pay his own union dues. Cadillac then stated that, because
"somebody" had complained to Local 1205 that the Respondent was paying the
dues for the employees, Santiago personally would have to pay the $84 dues which
Local 1205 claimed he owed it for nearly 2 years' time during which Santiago had
been away from Respondent's employ and in Puerto Rico, and that if Santiago did
not pay that $84 the Respondent would have to lay him off. Santiago stated that
he wanted to pay that money himself and that he would.20
On the morning of February 20, Camerone called Rosa to his office where he
told Rosa that he wanted to speak to him "as a friend," that he did not care whether
Rosa had signed the petition or not. Camerone then continued by citing all the
benefits which Respondent gave its employees, including the fact that, even when
work was slow, there was always a day or two's work for them. Camerone added
that, if the employees succeeded in getting another. union to represent them, the
Respondent would probably have to withdraw many of these benefits and even
discharge a number of its present employees. ' He ended the conversation by
reminding Rosa that, as he was a family man, he should think these things over
carefully.
Again that afternoon Robert Cadillac had Rosa called to his office where he asked
if Rosa had found out anything. Rosa claimed that everything was all right in the
shop. Cadillac asked if Rosa had asked anyone to sign anything at their homes,
and if he had signed a petition. Rosa denied both. Cadillac then told Rosa that
he knew that Rosa was one of the men who had signed the petition. When Rosa
again denied the fact, Cadillac picked up the telephone and appeared 21 to speak to
Brovarski after which he told Rosa that Brovarski had confirmed the fact that
Rosa was in fact one of the signers of the petition in his possession. Cadillac then
^ In fact Rosa had by this time signed three such petitions.
11 Robert Cadillac denied having used the word "petition" but his testimony makes it
clear that be preferred the words "papers'and cards," the last being a reference to the
membership authorization cards of District 65 on which Rosa and his friends were also
soliciting signatures at the same time. The mention of cards indicates that the Respondent
was being kept up to date on the activities of Rosa.
20 Actually Santiago had already received a receipt for such payment as McGarry, Re-
spondent's office manager, had already paid Local 1205 that sum. Ultimately the Respond-
ent deducted the full sum from Santiago's pay prior to March 24.
'= Cadillac claimed that he merely pretended to telephone and speak with Brovarski.
The coercive effect of this telephone call on Rosa was just the same whether it was a real.
telephone call or only appeared, to be real.
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
accused Rosa of "blackmailing" the Respondent in securing signatures and that he
could be sent to jail for having done so. Cadillac then produced three legal looking
documents from the desk drawer; stating that they were statements from three
employees to the effect that Rosa had threatened them in order to secure their
signatures to the petitions.22 He threatened to take them to the district attorney
or the FBI. Throughout this interview, as at the hearing, Rosa continued to deny
having threatened any of the employees. Cadillac told Rosa that he "could not
get away" with anything like this, that it had "nothing to do with the Union" and
that he was going to the district attorney with the three statements. Cadillac ended
the interview with the statement that, because of Rosa's long employment with the
Respondent, Cadillac would give him the "benefit of the doubt" until he had
more evidence" but that, when he had that evidence, he would discharge Rosa 23
Thereafter Robert Cadillac had similar individual interviews over the next few
weeks with, according to his own estimate, about three-fourths of the Respondent's
employees during which he asked if the employees had signed papers or cards,
accused "someone" of telling the Union that the Respondent was paying the dues
for the employees so that the employees would have to pay their own dues, and
then showed them the existing Local 1205 contract and the underlying record of
the Respondent's payment of dues to Local 1205.
Within a few days after the discharges of Sparks and Morales, Brovarski actually
held the meeting he had promised for the Respondent's employees in the Respond-
ent's plant with the permission of the Respondent. During this meeting Brovarski
permitted the employees a show of hands on a number of issues mentioned in the
Sparks' petition. The men were permitted to vote on the length of the lunch hour
they wanted. The replacement of Malone as shop steward was discussed and,
although Brovarski announced that Malone would be replaced, he did not permit
a vote for the election of a new shop steward stating that the new shop steward
would be appointed by the Union as provided for in the Union's constitution. Sig-
nificantly there was a long discussion held as to whether or not the Respondent
would be permitted to continue to pay the dues for the employees. After a
debate which, according to Brovarski, indicated a complete division on this, Bro-
varski announced that thereafter the men should pay their own dues.24 And then,
in Brovarski's words:
We got into this meeting here and it had been brought to my attention that
people were being intimidated and they were going to their homes scaring
people, so I found out that Manuel Rosa was the guy -behind the whole thing
and, in fact, he was the ring leader there so I asked Manuel Rosa to stand
up,25 and I said, "Are you going around to these different homes of people
scaring little children, wives at mght?"
He just stood there. He didn't answer me yes or no.
I said, "Mr. Rosa, I believe you are a very brave man. I will give you an
invitation to come to my house to scare my children and I will ride you down
to the road and after I leave you out of my car, you are on your own. If you
want to come, you come."
That was the essence of the whole thing. He didn't answer me yes, no or
maybe. He just sat down.
Despite the efforts of Robert Cadillac and Brovarski, as noted above, Rosa
continued the circulation of his second petition to decertify Local 1205 which
''a Cadillac's claim that these legal looking documents were not such statements is
obviously correct as Ortiz, Pagan, and Arroyo were not even, asked for statements until
March 13 after Respondent's counsel had suggested,that course of action. Cadillac testi-
fied that he used this method in an effort to "shake the truth" out of Rosa. Again, how-
ever, the fake was effective coercion.
2J Despite this statement, Robert Cadillac testified at the hearing as follows -
Yes, I called him back the following day [February 20] because at the time that
I,had Rosa in my office he gave no indication of having threatened anyone and he
truthfully had been a good worker over the years and he had been a quiet man.
I had never known him to cause trouble and I found it very hard to believe that
14 The fact that Brovarski permitted 'this, long debate on the dues- question, after
allegedly having informed Robert Cadillac on February 16 that the Respondent must stop
paying such dues "immediately," casts considerable doubt on the truthfulness of Brovarski's
testimony regarding his order to Cadillac.
25 Prior to this- meeting Robert Cadillac had so informed Brovarski. Obviously there
was a close working relationship between the Cadillacs and Brovarski.
AACON CONTRACTING COMPANY, INC . - - 1263
resulted in the filing with the Board on March 4, 1959, of another decertification
petition signed by "Daniel J. Schulder (Assoc. of Catholic Trade Unionists) as
INDIVIDUAL" with the Actu address of "327 Lexington Ave., N.Y. 16, N.Y."
"On February 24, 1957, Manuel Rosa signed and filed the first charge against
Respondent with the Board alleging for the first time that the Respondent had
discharged "various employees" because of their refusal to support Local 1205.
This was the first general charge to be filed against the Respondent although Sparks
and Morales had filed charges regarding their own individual discharges prior to
this time. The Rosa charge in Case No. 2-CA-6435 was served upon the
Respondent on February 27.
The Respondent engaged its present attorney to take care of its increasing labor
difficulties in the latter part of February or the first part of March. His first piece
of advice was to abandon the practice of paying the dues to Local 1205 for and
on behalf of its employees. The practice apparently ended in the second quarter
of the year 1959.
Another piece of advice given by counsel was that Respondent should secure
statements regarding the alleged threats from the individual employees threatened.
On March 13, Robert Cadillac asked employees Ortiz, Pagan, and Arroyo if they
would make statements regarding these threats. They agreed to do,so and on the
following day, March 14, a Saturday, the three of them went to Robert Cadillac's
home in Brooklyn where, in the presence of the two Cadillacs and at least one
foreman, gave the written statements. Some of these statements had been prepared
the night before but one of them was rewritten at the Cadillac home. These state-
ments speak of alleged threats made in the last week of January or the first week
or two of February. Robert Cadillac admitted that there had been no threats
subsequent to that time.26
On Monday, March 16, the Cadillacs took the statements they had secured from
Ortiz, Pagan, and Arroyo to the district attorney's office where they asked the
district attorney to do something about the matter. The district attorney, after
questioning the Cadillacs, told them that the district attorney's office was "not inter-
ested in any labor union disputes or anything like that, but if any of the men that
were threatened with bodily harm would appear 'at the office, that the office would
investigate it." 27
On the afternoon of March 16 Robert Cadillac had the two Rosas, Manuel and
Gabriel,. Santiago, Pratts, Martinez, and Soney called to his office where he told
them "I think you all know why you are here . . . we are going to have to wait a
few minutes because Mr. McGarry 28 is over in the office getting your checks."
When Santiago was handed his layoff slip, he noted that no reason was given for
the discharge and asked that the reason ,be listed on the slip. Cadillac told him
that either the people at the unemployment compensation office or at the Board 29
would tell them the reason for the discharge. At the hearing the Respondent in-
sisted that these six employees had been discharged for "conduct unbecoming an
employee." During the period the employees were waiting for their checks Cadillac
pointed to a picture of one of the Respondent's annual banquets which had been
attended by all the employees and asked if the men saw anything but "pigs and
animals" in the picture.30
. When these six discharged employees returned from getting their belongings after
their discharge, Robert Cadillac was talking to the remainder of the assembled em-
ployees at a shop meeting. Cadillac pointed to the discharged group and, in his
own words, stated "those people going out, I have just fired them. You men know
why these people were fired. I don't care who signed those petitions going around,
_Y0 In view of the fact that Robert Cadillac mentioned nothing regarding threats during
his first interview with Rosa on February 19 but did mention the "threats" in his con-
versation of February 20 with Rosa, Robert Cadillac must have learned of these visits
and these conversations on or about February 19. Ortiz had originally reported the epi-
sode to Camerone during Cadillac's vacation
• •_27 Cadillac had promised not to disclose the names of the signers of the statements.
28 The office manager
29 All the witnesses were in accord on this statement but were approximately evenly
divided between which office was referred to
ao This reference was to a pamphlet which had been distributed around the Respondent's
plant- urging all the employees to remain united in the fight against Respondent and
Local 1205 which contained the following statement among others : "We are all woikers
and we have common interest in getting our rights and dignity and freedom The
Cadillacs 'think we are animals-BUT WE ARE MEN' AND WILL FIGHT AS MEN-
UNITED 1"
1264 DECISIONS OF NATIONAL LABOR RELATIONS-BOARD
but I want you to work peacefully, otherwise you will suffer the same fate." 31 The
six men thereupon left the plant and have never been reinstated.
In describing what precipitated these discharges, Robert Cadillac testified as
follows:
In between the time that all of this first began and, I would say, sometime in the
early part of March, we had,retained you [Attorney Raphael] and we had begun
to tell you all the different things that happened and subsequently we got these
statements from these people. -
On your advice to us, after these statements, we discharged these people
immediately.
On the following day Santiago filed a charge alleging that their discharges were
in violation of Section 8 ('a) (1) and (3) of the Act.
The Strike
On the morning of March 19, Rosa and the five others discharged on March 16
began picketing the Respondent's place of business carrying picket signs prepared at
the Actu office. They were joined by about a half dozen of Respondent's employees
including Isaias Suarez.
In addition to the strikers, Daniel Schulder and one Patricia O'Driscoll, whose
official capacity at Actu other than mere 'membership was not disclosed in this
record, were very much in evidence together with two news photographers whom
they had driven to the scene. Respondent also had been forewarned of the strike
and, at counsel's suggestion, was also forearmed with photographers, professional
and amateur, and with delegates from Brovarski's union who unsuccessfully
attempted to prevent the picket line from disrupting deliveries into the plant.
Respondent's plant was picketed on March 19, 20, and part of March 23. The
picketing by the strikers was peaceful throughout. In fact, Robert Cadillac testified
regarding the picketing: "Yes. Our men, [the strikers] were orderly and did not
cause too much trouble.32 It [violence and trouble] was most of those people from
Actu." -
As noted heretofore, the original six pickets had been joined by some six other
employees on the picket line on March 19. One of those joining the strike was
Isaias Suarez, who had worked steadily for the Respondent since 1950, was a section
leader and had been asked by Robert Cadillac during his personal interview in
February if he had signed some papers with other employees and whether he
knew that was going on in the plant .- On the morning of March 19 Suarez was
picketing with a sign given to him by Pratts when Superintendent Camerone ap-
proached Suarez and said: `-`Never mind about that. Come inside and go to work."
Suarez refused to do so unless all the others were put back to work. After Robert
Cadillac had made a similar request of Suarez with the same result, Camerone
started to make another request of-Suarez when Cadillac spoke up and said: "Leave
those men alone. Don't bother with them. They are not coming in here to
work anymore." Later that day these striking employees were handed their pay-
checks and discharge slips with the statement that Respondent was sorry to have
to let them go. As to Suarez, Cadillac testified that Suarez "stayed out on the 19th
and, of course , we had to let him go." Respondent applied the same reasoning to
all others who joined the picket line.
On the morning of March 23 another group of about 12 employees informed
Robert Cadillac at his office that they were going to join the strikers even though
they were not going to picket. After futilely attempting to dissuade this group,
Robert Cadillac told them that "if they went out, I would have to let them go."
Nevertheless this group joined the strikers and were either handed their pay and
layoff slips that same day or were told to return to the plant for those items
at a subsequent time.
si Some of the employees listening to these remarks interpreted them as a threat to fire
anyone who continued circulating anti-Local 1205 petitions Under the existing circum-
stances, this was not an unreasonable interpretation especially as the employees had no
reason to know that the men were supposedly being discharged because of alleged threats
made more than a month previously.
S' The only objectionable features Cadillac mentioned in regard to the strikers were the
fact that deliveries ceased and one ex -employee named Juan Landron , who had been dis-
charged during 1958 for fighting , had on one occasion during the strike laid down on a
piece of cardboard placed in the Respondent 's driveway for 30 seconds while an Actu
photographer took his picture which was subsequently reproduced in the March issue of
Actu's "The Labor Leader."
AACON CONTRACTING COMPANY, INC. 1265
As pointed out by Robert Cadillac, there was added to this peaceful picketing
of a labor dispute a completely unrelated and semireligious conflict when, at the
Cadillacs' request, one Father Belcher suddently arrived on the strike scene early
on the morning of March 19, walked through the picket line and publicly shook hands
with the Cadillacs in front of the plant. Father Belcher was an old-time friend and
parish priest of the Cadillacs who had come to the plant for the purpose of assisting
the Cadillacs in this labor dispute by approaching the Actu representatives. Just
as suddently and just as extraneously, Schulder and O'Driscoll of Actu began shouting
in a loud voice as Father Belcher shook hands with the Cadillacs "now you have
brought yourself a Priest, when are you going to buy yourself a Bishop" and similar
inflammatory statements. In addition Schulder requested one of Respondent's officers
to strike him, which offer, fortunately, was not accepted. Schulder was obviously
seeking to create trouble. However, despite his efforts, the picketing remained
peaceful.
The Trial Examiner cites these incidents not because they play any part in the
unfair labor practices but to indicate the restraint exercised by the strikers in prevent-
ing their owninvolvement in this emotional, but immaterial, religious conflict. The
most charitable thing that can be said for the activities of the Actu representatives
is that, through no fault of their own, their inflammatory statements and actions were
futile.
The Strike Settlement
On Saturday, March 21, Respondent filed an application for an injunction pendente
lite in the Supreme Court of the State of New York, County of New York, based
upon an affidavit signed by both Cadillacs stating in small part:
16. This morning, Thursday, March 19,-1959, without the consent of our-
selves or the representatives of Local 1205; this rump group became to picket
in front of our premises with 11 in number . . . . They a, trying to give the
impression that there is a labor dispute, and are carrying i:' `;ards which carry
the legend bearing the word "strike," and thus attempting to indicate to the
workers and to, the public at large that we are on strike, which in' fact we are
not, since we have no problems with our collective bargaining unit, and prac-
tically 95 percent of our employees came into work, and have every desire to
continue doing so.
The defendants named in this suit were the employees on strike, Schulder, Driscoll,
and other representatives of Actu although Actu was not individually named in the
caption. The show cause order ,was returnable on Monday, March 23.
On the morning of March 23 the Respondent's attorney and Robert Mozer, acting
as the attorriey for the individual named defendants, met at the supreme court and
agreed that the picketing should cease imediately and that they would hold a meeting
the following morning at Raphael's office to settle the matter
After Robert Cadillac had told strikers Alverio and Agosto on the picket line that'
his "brother [John] had called me and that I thought everybody was going back
to work" and after Schulder had returned'from the supreme court, the picketing
ceased during the afternoon of March 23.
The following morning, March 24, a committee of strikers including Rosa,
Schulder for Actu and Mazer as attorney for the group, Brovarski for Local 1205,
and, of course, the Cadillacs and their attorney met at Raphael's-office. The follow-
ing "Settlement' Agreement" was drawn up and, with considerable pressure exerted
on the strikers by Schulder, was executed by all parties present:
Pursuant to an off-the-record and without prejudice arrangement, a meeting
was scheduled at the office,of Raphael, Searles, Levin & Vischi; for Tuesday,
March 24th at 8 A.M., at, which were to-be present, the representatives of
AACON CONTRACTING CO., INC., LOCAL, 1205, IBT, a group of workers
employed by AAcon, representatives of the Association of Catholic Trade
Unionists, Robert Mozer, Esq., counsel for the ACTU, and the' workers, and
the following were present:
John Cadillac and Robert Cadillac, representing Aacon'Contracting'Co.,
Inc. ,
Sigmund Brovarski; Secretary-Treasurer of Local 1265 IBT -
Ernesto Morales'
Miss Patricia O'Driscoll
Herberto Calcano -
' Manuelo Rosa •
Florentino Martinez
.
560940-61-vol. 'f2T=81
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
N H destor ezernan
1
11, ^ "IN i Al ri 'emes vao o
'Daniel Schulde'r '
Robert Mozer ' , -
- Sidney O.-Raphael
The object of the meeting was to try to work out a peaceful formula for the,
work stoppage which has resulted, and concerning which application for tem-
porary injunction is now pending before the Supreme Court of the State of
New York-in Special Term Part I re. the above.
On the basis of a full and complete -discussion had among -all, of the parties
above enumerated, the following formula was evolved and is agreed to by the,
persons whose signatures are affixed hereto, as follows:,
1. The picketing of Aacon Contracting Co. Inc. and any and all work
stoppages which have already been discontinued will not be resumed.
2. Attached hereto is a list of names of employees who are not now employed
but who are now placed on a preferred hiring list and are to be rehired on
the basis of seniority and classification basis as soon as jobs are available, and
will be thus rehired as soon as such jobs are available; with the understanding
that for a period of thirty day's after the rehiring of such persons on ,the, pre-
ferred list that should there be any necessity for the lay-off of workers during
such thirty day period, that they shall be laid off prior to those who as of the
date of this stipulation were actually employed in the plant, and after the thirty
-days shall have expired, then- they shall be allotted back into their former
seniority and classification status. -
3. All of the terms and conditions of the collective agreement in effect be-
tween Aacon Contracting Co. Inc. and Local 1205 IBT, are continued in full
force and effect and are to apply to the terms and conditions of this stipulation
as well, and Local -1205 IBT shall be continued to be recognized as the collective
-bargaining agent for all the present employees contained in the collective bar-
gaining unit of the agreement 'aforementioned, and that the collective contract
is to be extended for a further period,' and that the terms and conditions for
a new collective agreement are to be negotiated. -
4. The present petitions pending in the National Labor Rel'ations Board for
decertification, and the various unfair labor practice charges which are now
pending in the Second Region of the National Labor Relations Board will be
withdrawn without prejudice by March 30, 1959, and the parties hereto will
arrange for the necessary document's to' be executed- by .the appropriate persons
in order to effectuate these withdrawals.,
5. The discharges of Ivan Sparks, Angel Garcia, and-Ernesto Morales are
to be arbitrated in accordance with the provisions of the collective agreement,
above mentioned, and the award of the arbitrators will be a- determination of
whether the discharges stand or if not whether they are to be returned and
placed on the preferred hiring list and treated in accordance with those persons
on the preferred hiring list, but that'in any event there is'not to be any back
pay awarded for the said persons, nor to any other persons.,
6. The action heretofore. instituted in the Supreme Court- of the Cdunty of
New York, entitled "Aacon Contracting Co. Inc., plaintiff, vs.,Sparks, and others,
defendants" is hereby discontinued without costs to either party- as against the
other, and the motion for a temporary injunction now returnable in the Supreme
Court is hereby withdrawn:
Dated: Mar.24, 1959 - • •
That afternoon: the Respondent dismissed its application for the= injunction.33- Sep
far as the record discloses, none_ of the unfair, labor practices charges or petitions
were withdrawn. " I -• -
That afternoon the"strikers:met atithie hone ofstriker Caneda' and expressed dis-
satisfaction with the' reinstatement: provisions= of. the aggreement: • Schulder •• advised
them that it was the "best" they could get. • - I
This, dissatisfaction over the reinstatement- provisions apparently;caused-the strikers
to decide-to resume picketing Respondent's plant on April 6. Actually this renewal
of picketing had-been, planned, for an earlier- date-but, unfortunately. for the venture,
Schulder managed 'toget-hiniselffarrested-on some other matter- so•that the renewal
had to be postponed until April 6.
'
. -. •
33 However the Respondent has filed an action for damages against•Actu•under Section
301 of the Act and a libel action against Actu growing.outi of the-publication of an
account of the Aacon strike in Actu's newspaper "The Labor Leader."
AACON CONTRACTING COMPANY, INC. - - 1267
Again information regarding the threat, of- renewed picketing on April 6 Was
relayed to the Cadillacs. The Cadillacs promptly consulted their attorney who
informed them that, as Robert Cadillac testified, "if they [the strikers] come back
that was the last opportunity [he] was going to take their word, they had-had-the
last opportunity, and that we were going to have them arrested somehow or other." 34
On the morning of April 6 Rosa, Santiago, Pratts, and -a few others appeared at
a restaurant approximately a block and a-half away from the plant with, Schulder
and O'Driscoll but decided against resuming the picketing because so 'few of the
employees had appeared. Schulder and an employee or two did drive around,-the
plant a few times that morning `but there was no picketing and theme has been ho
picketing since.
-
-
However, on the afternoon of April 6, the Cadillacs, Superintendent Camerone,
and Foreman Gonzales drove employees Pagan, Ortiz, and Arroyo together with
one or two more -employees, to whom, Rosa and some of the pickets -had spoken
while soliciting signatures to their petitions or at the picket line, to the Brooklyn
district attorney's office where the employees told for the district attorney's edification
their stories. On this occasion the district' attorney sent detectives with the Cadillacs
to the plant office where Respondent supplied the detectives with the addresses of
Manuel and Gabriel Rosa, Pratts, Santiago,' Martinez, Soney, arid,the men men-
tioned in the March 14th statements of Ortiz, Pagan, and' Arroyo. Those six
strikers were thereafter picked up by-the, detectives, taken to the district attorney's
office where they were questioned that night, handed subpenas calling for their
appearance before the grand jury thereafter, and later that evening released. Since
that time no developments have occurred in any of- these "cases" although a repre-
sentative of the district attorney's office testified at the hearing thaf these cases
were still "pending."
:-Through the intervention of the-Chancery the Cadillacs had several meetings with
Catholics prominent in Actu activities during which further efforts were made to
settle the labor dispute by reinstating even one striker and of securing the dismissal
of-the numerous, actions"' brought by Respondent against Actu. Acting once again
on advice of- counsel Respondent refused to consider even one reinstatement or the
dismissal of even one lawsuit.' It must be said here that the Actu emissaries indicated
a profound lack of information on the matters about which they were purporting to
negotiate and that, therefore, the negotiations were uniformly fruitless.
On May 14 and 20 unfair labor practice charges on behalf of the discharged
strikers were filed by Carlos Dominguez and Rosa, respectively, and promptly
served upon Respondent.
On May 28 Superintendent Camerone visited strikers Carlos Domingues and
Francisco Caneda at their home and asked them to go with him to the Respondent's
office telling them that the Respondent "needed their help" to settle this case and
that, when the.case was settled which should not take too long, "maybe we call
you back" to work.
When Dominguez nand Caneda arrived at the office, Robert Cadillac asked them
to sign the following form which had been prepared by Respondent's counsel with
the suggestion that it be signed by all those persons included in the charges. The
form read as follows:
The undersigned having been advised that I am a party to a charge which
was made by 'nie before the National Labor Relations Board in Case No:
2-CA-6612, and in which I am supposed to have charged Aacon Contracting
Co., Inc. with interfering with, restraining and coercing my. rights in labor
organizations, collective bargaining and otherwise interfering with such rights
which' I have under the law.
This, matter haa,- been thoroughly explained to me in both, English and
Spanish', and I have had the, opportunity to fully understand what has happened,
and reflect on the` same; and do hereby unequivocally state that the use of my
name in .the charge before' the National Labor Relations Board, was not my
own voluntary act, and that I never intended to nor did I wish to make such-
a charge, because the same is' untrue, and' I was obliged to do so at the
insistence of the representatives of the Association of Catholic Trade Unionists,
and I was advised, and practically ordered, to permit my name to be used in
connection with these cases, foar otherwise-I would-never be able to get my job
back with'Aacon Contracting Co.,-Inc., and 1-also was told that by signing
these papers the, said organization, Association of Catholic Trade Unionists;
ai Attorney Raphael subsequently explained that be meant by this remark arrests for
illegal picketing under Section 722(b) of the New York Penal Law based on one of his
own cases known as State of New York v . Bellows.
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would get back for me all my back pay which I lost as a result of being
unemployed since the middle of March, 1959, and only because of this rep-
resentation and everything else that happened was I compelled to permit my
name to be used for these charges.
This is an authorization to the National Labor Relations Board, and any
other agency , to be instructed to withdraw my name from such charges.
`After considering the matter overnight , Caneda returned to the plant the following
day and executed the document. '
About the same time Foreman Gonzales went to the home of striker Antonio
Agosto and asked Agosto to go to the plant office as Robert Cadillac wanted to talk
to him. Upon arrival at the office , Cadillac showed him two papers and asked
Agosto , as a favor to him, to please sign the papers , that he, Cadillac, "wanted to
settle the case" and that , after the matter was settled , many of the men "would be
going back to work." Agosto refused to sign the document.
As counsel had suggested that all strikers mentioned in the charges sign such
dorm, the Cadillacs sent various of their foremen, and in some cases even wives
W foremen , to the homes of strikers in order to induce them to • go to Respondent's
office and sign . Several of these agents offered to help the striker get his job back
hr suggested that all the men would be reinstated when this case was settled.35' As
some of those called to the office as above refused to sign the above form, counsel
for the Respondent prepared a second form as follows:
The undersigned , have been advised that I am 'a party to a charge which
was made by me before the National Labor Relations Board in Case No.
2-CA-6623, and in which I am supposed to have charged Aacon Contracting
Co., Inc., with interfering with, restraining and coercing my rights in labor
organization , collective bargaining and otherwise interfering with such rights
which I have under the' law.
This matter has been thoroughly explained to me in both English and
Spanish, and I have had the opportunity to fully understand what has happened,
and reflect on the same, and do hereby unequivocally state that the use of my
name in the charge before the National Labor Relations Board , was not my own
voluntary act, and that I never intended to nor did I wish to make such a
charge, because the same is untrue.
This is an authorization to the National Labor Relations Board , and any
other agency, to be instructed to withdraw my name from such charges.
A number of strikers signed one document or the other as requested . But none
have been reinstated. '
B. Conclusions
Except in the cases of Sparks and Morales where Respondent depends upon the
merits, the Respondent's defense here constitutes in effect, a plea of confession and
avoidance. Thus Respondent pleads that reinstatement cannot be ordered here for
any employee , except Sparks and Morales, because: (1) The parties settled their
dispute privately by the agreement of March 24; (2) the Rosa group and all the
strikers were guilty of such misconduct as to deny them their right to reinstatement;
and (3 ) the unfair labor practice charges here were filed by individuals fronting
for Actu which, as a labor organization , admittedly was not in compliance with the
filing requirements of the Act. ,
Thus Respondent appears to concede the merits of the General Counsel's case,
a concession justified , if'not required , by the facts. In fact Respondent's 96-page
printed brief to the Trial Examiner contains only 5 pages which can be considered
as dealing with the- merits, . all of which are devoted to Sparks and Morales.
But, if the Respondent 's defenses are found to be meritorious, then there will be
no necessity to consider the merits of the General Counsel's case except as to.Sparks
and, Morales . Therefore, we will here first consider the defenses, and,. perhaps, save
time.
1.' The defenses
a.' Settlement of March 24
On March . 24 "a committee representing the striking employees (except Sparks
and Morales ), Actu, Local 1205, and Respondent signed an agreement purporting
3_. These promises were not denied Respondent merely defended on the grounds that
the Cadillacs had not authorized the making of such promises . As the Respondent had sent
these foremen ,for the purpose of getting the strikers into Cadillac 's office and as Cadillac
himself made much the same statements , this restriction on their authority seems
untenable.
AACON CONTRACTING COMPANY, INC. 1269
to settle the existing labor dispute at the Respondent's plant, together with the
reinstatement of the strikers, including Sparks and Morales, the representatives
capacity of Local 1205, and further providing for the dismissal of the injunction
suit and the withdrawal of all pending unfair labor practice charges and petitions
filed with the Board.
Respondent claims this to be a defense to the instant consolidated complaint.
At the very best for the Respondent's contention, the document of March 24
could constitute a settlement of only the private rights involved because the docu-
ment, although purporting to include within its terms the charges and the petitions
already on file with the Board, was not executed by any representative of the Board.
Nor was the Board included in the settlement negotiations in any way. Thus, in the
absence of the Board, there was, and could have been, no settlement of the public
rights involved herein which arose with the filing of those same unfair labor practice
charges and petitions. -
It has been a long-settled law that a respondent cannot deprive the Board of
jurisdiction or the public of the right to enforcement of the public rights involved
by the stratagem of any such private settlement.
This defense, therefore, has no merit.
b. Misconduct
It is also now well settled law that the Board will deny reinstatement to dis-
criminatorily discharged employees if they have engaged in sufficiently serious
misconduct.
In order to bring this case within the above rules of law, the Respondent called
employees Ortiz, Pagan, and Arroyo as witnesses together with the three statements
,made by them on March 14. These employees testified orally regarding the visits
of Rosa and his group while they were soliciting signatures to Rosa's first petition
in late January or early February.
The written statement of March 14 by Ortiz charges that "these fellows threaten
to beat me up and said I'd lose my job if we didn't sign up with the other union."
The statements of Arroyo and Pagan relate that the men had said that the signing
of these petitions was a "military secret" and that "if anyone told on them they
had enough people and cars to follow the guilty party and beat him severely." In
addition the statements of Ortiz and Arroyo mentioned "rumors" each had heard
that the Rosa group were "armed with guns and knives."
Even accepting these statements-at face value, there is but one threat to do bodily
harm. The quoted statement regarding the loss of a job can hardly be classified
as a threat because it amounts to no more than a prognostication as to the possi-
bilities in the event of the occurrence of certain events in the future. It is well rec-
ognized "seller's talk" in union organizing campaigns. It can hardly be taken
seriously because it is so well known that the employer has unilateral control over
jobs. Respondent also attempted to make much of the mention of the fact that
the men stated that the signing of cards or petitions was a "secret" or a "military
secret" to be kept from Respondent. It must be recognized that in many organizing
campaigns secrecy is maintained solely for the protection of the employees. Further-
more, in the case of Ortiz, there is definite proof that he did not consider these
statements to constitute a threat against him because the very first thing he did
thereafter was to inform Camerone of the visits and to alibi the fact that he signed
the petition on the ground that he had been "threatened." Likewise it is clear from
the total inaction thereafter of both Camerone and Robert Cadillac that neither
of them considered these so-called threats a serious matter-at least until Respond-
ent's counsel a month or so later conceived the idea that having a report of the
so-called threats in writing might be useful.
In addition Arroyo expressly repudiated the idea that threats were made in his
oral testimony while Pagan did much the same thing by implication.
Ortiz enlarged upon his generalized statement until he testified that he was being
threatened practically all the time. He also testified that he was threatened with
a beating when he crossed the picket line on March 19 for the first time. On the
other hand, Pagan, who accompanied Ortiz on this occasion, testified that Rosa
only said to them "Look, please cooperate with us.... You will be responsible
for what may happen." This credible testimony disproves any idea that Ortiz was
threatened at this time.
His own statement disclosed the reason why Ortiz was a willing and imaginative
witness for Respondent when it stated: "What they had in mind is against the
Company's interest because they want to cancel out the Union, which offers many
benefits for us and our families." His own testimony proved that both,he and his
wife were afraid that, if Ortiz signed something "against the Company's interest,"
1270 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
he might lose his job with Respondent and be unable to support his large family,
a not wholly unfounded fear. Ortiz was. an extremely timid individual.
As to the remarks that the men were "armed with guns and knives," no one ever
saw any such and the oral testimony indicated that these allegations were based
in large measure on "rumors" spread by unidentified persons. In this connection
it is noteworthy that these three employees went to Cadillac's home on March 14
to give their statements regarding these threats only after another rumor from
another unidentified source to the effect that "there were fellows around with the
intention of treating us rough." As Robert Cadillac requested the men to make the
statements, it is possible that he may have been the unidentified source of that rumor.
Then Respondent produced three other employees, Nunez, Rios, and Borgos, who
testified in general that they were told by Santiago or Pratts that anyone going
through the picket line would be hurt. That these alleged remarks were either
misinterpreted or exaggerated at the hearing is clear from the fact that all three of
these witnesses crossed the picket line without incident throughout the strike. On
the other hand Robert Cadillac himself described Manual Rosa as "quiet," "very
polite, and courteous," and a "hard worker," which opinion coincided with the
observations made by the Trial Examiner during the hearing. In fact it was hard
for Cadillac to believe that such a man could suddenly have started making threats.
It seems so incongruous to the Trial Examiner likewise that he must credit Rosa's
consistent denials thereof, both to Cadillac and at the hearing.
Robert Cadillac also testified that, despite these alleged threats, Respondent "was
willing to rehire [all] these men if work became available for them" and "I had
nothing against any man, and J don't. I have nothing against these men." And
the private settlement of March 24 provided for the reinstatement of all these
employees.
Accordingly, the Trial Examiner must find that this defense, like many other
.things in this case, has been so enlarged and exaggerated beyond reality in order
to try to create a defense as to be unbelievable.
Therefore, the Trial Examiner finds this defense to be without merit.
A comment may be in order in regard to *Robert Cadillac's willingness to rein-
state "if work becomes available." Respondent contended that the strike so "badly
decimated" Respondent's business that it was impossible for Respondent to.reinstate
the strikers. The record shows that all these persons were employed from October
to February when Respondent's records show its gross business to have been as
follows: October-$132,000; November-$164,000; December-$256,000; Janu-
•afy-$328,000;•February-$225,000; March-$218,000. After their discharge Re-
spondent's gross business was as follows: April-$209,000 and May-$213,000. It
-thus appears that at least from a business point of view, the Respondent could have
reinstated all these discriminatees if it had cared to.
c. Fronting
The last of the Respondent's three independent defenses is that all the individual
employees who filed unfair labor practice charges against the Respondent were
mere "fronts" for a noncomplying labor organization, Actu, and that, therefore,
all the charges must be dismissed.
The law is now well settled that the Board will dismiss charges filed by individuals
whom the Board on the evidence finds were fronting for a labor organization which,
because of noncompliance with the Act, could not have filed those charges in its
own name. The test seems to be:
In such matters, the Board endeavors to ascertain whether the charges were
filed by the individuals on their own behalf', or whether they were actually
acting, not for themselves and other employees similarly situated, but on behalf
of, and as agents for, the noncomplying union, and with the purpose of using
the individual charges as a device for enabling the noncomplying union to
reap for itself the benefits of the Board's processes while avoiding compliance.36
As Actu denies being a labor organization, Respondent is confronted with proving
both that Actu is in fact a labor organization and then that Dominguez, Rosa,
and the others who filed charges, were merely acting as agents and on behalf of
Actu when filing such charges.
According to its constitution Actu is a voluntary association of Catholic individuals
including employees who were members of bona fide trade unions. Non-Catholic
employees may become "associate members" of Actu but without voting rights.
3° Midcontuient Coal & Coke Company, 123 NLRB 1867.
AACON CONTRACTING COMPANY, INC. 1271
The purposes of Actu as set forth in its constitution do not qualify Actu as a
"`labor organization" within -the meaning of Section 2(5) of the Act. However, the
minutes of its meetings prove that Actu has been closely involved, or meddling, in
many, many labor disputes . It has filed innumerable decertification petitions, in-
cluding two in the instant proceeding , and perhaps has even filed unfair labor practice
charges in other matters with the Board . In this and in many another labor dispute,
it has given freely of its advice, good or bad.
But, under the Act, any individual , any lawyer , may do all of these things without
being a labor organization within the meaning of the Act. Furthermore it is quite
obvious that with only one part- or full -time, inexperienced college student as its
secretary-treasurer and its only active officer , albeit with volunteer feminine assist-
ance in the instant case, Actu is not physically equipped nor has it the capacity to
act as a bona fide labor organization . Consequently , without more , the Trial
Examiner would have to conclude in the ordinary case that Actu was not a labor
organization.
However, in this case , there is more . That is so because on March 24 in what
appears to have been a rather frantic effort to extricate himself and ' other members
and officers of Actu from Respondent 's injunction proceedings against them, Actu's
ebullient secretary-treasurer not only executed the agreement providing for the dis-
missal of the injunction suit but also purporting to settle the labor dispute at the
Respondent 's plant and the grievances of the Respondent 's employees . In addition
'to executing - this agreement for Actu he also brought pressure on the employees'
committee to execute the agreement as the "best " settlement that could be had.
Whether done inadvertently or intentiohally , this action requires the Trial Examiner
to find that , in this case at least , Actu "exists for the purpose, in whole or in part,
,of dealing with employers concerning grievances , labor disputes . . ." and thus
'qualifies as a labor organization within the meaning of Section 2(5) of the Act.37
That, of course , leaves the question of fact as to whether Rosa, Dominguez , at al.,
were acting as fronts for Actu in filing the unfair labor practice charges herein.
In the cases cited by the Respondent the Board has found "fronting" where the
noncomplying unions stood to gain something from the filing of the charges which
it could-not do for itself because of its noncompliance status or where the individual
selected to file the charges was an officer or paid official of the noncomplying union.
The present case fits into neither category . Although Actu has to be held a labor
organization here due to the settlement of March 24 , and the abortive settlement
efforts thereafter , it has already been noted that it had neither the physical setup nor
the capacity- to act as a bona fide labor organization . Actu was not seeking to
become the bargaining representative of Respondent 's employees . No further proof
of this is needed than to cite the fact that Actu introduced the Rosa group to
District 65 as a possible bargaining representative for them. Actu personally had
.no stake in the outcome of either the charges or the petitions . Thus it is impossible
to see any possible gain accruing to Actu from the filings except, perhaps, some
personal satisfaction or public notoriety , neither of which is important here.
Nor is there one scintilla of credible evidence that Dominguez, Rosa, or any other
person filing charges, - was an officer, paid official, or otherwise interested in Actu
except as a "labor adviser" and helper in their own labor troubles, both of consid-
erably doubtful quality. In making this finding the Trial Examiner is not unmindful
of the testimony of Brovarski to the effect that he had been told by an unknown
organizer for District 65 in confidence that Manuel Rosa was a paid organizer for
District 65 , which testimony , being the rankest sort of hearsay as the "unknown"
organizer never appeared as a witness , was worthy of neither denial nor credit.
Respondent counsel also sought to establish this connection on the basis of a
"conspiracy," demanding the greatest latitude of examination for that purpose, which
was granted , but still the proof was not fortlicoming . In this same connection
Respondent also sought to charge the Rosa group and the strikers with "misconduct"
because of the publication of an account of Respondent 's strike in "The Labor
Leader" of Actu which counsel contended was not only "libelous" but "scurrilous." 38
This contention extends the law of agency and responsibility far beyond the breaking
point.
The fact of the matter is that Rosa and a number of his fellow employees believed
that they needed a union to represent their interests ; that Local 1205 was not repre-
senting them ; that, if the employees paid their own dues, perhaps Local 1205 would
be more anxious to represent those paying the dues; . and, ultimately , that they had
f
a7 N.L.R B. v. Cabot Carbon Company, et al , 360 U S 203.
A libel action by a Respondent is now pending in the courts of the State of Now York
against Aetu based upon this article.
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been discriminatorily discharged because of their concerted efforts to secure these
reforms. Not being experts on the subject, these individuals sought advice on their
labor problems from a newspaper reporter on a Spanish language newspaper who,
in turn, wisely or not, sent them to Actu for that advice. All the petitions and
charges subsequently filed had but one aim: to secure the legitimate, lawful objectives
the employees had set for themselves. The objectives sought by these employees
were all rights guaranteed employees by the Act. Thus it is crystal clear that in
filing the charges here Dominguez, Rosa, et al., were "actually acting for themselves
and other employees similarly situated and not on behalf of or as agents for" Actu.
This defense then is also'without merit.
Now that the smoke screen has been dispersed, it is time to look at the merits of
the instant matter.
2. The unfair labor practices
a. Local 1205
The record here does not disclose when or under what circumstances Local 1205
and its predecessors were recognized as the bargaining agent for the Respondent's
production and maintenance employees. The record does show that just as the
Cadillac brothers, in Robert Cadillac's words, "inherited" the business, just so they
also inherited a predecessor of Local 1205 as such bargaining representative. The
record also proves that in like fashion, the Cadillacs continued the practice of paying
to Local 1205 or its predecessors a sum of money equal to the dues of its employees.
This money was paid out of company funds and was not deducted from the wages
owed by Respondent to the employees, at least until the payment due for the second
quarter of 1959 and subsequent to the time that the Sparks' petition had been
handed to Brovarski. When Respondent's attorney was first told of these company
payments, he stated that that arrangement would have to be changed.
Each time ,that Local 1205 went through one of its many changes of number of
affiliation, Respondent's officials passed out to the employees at their work or at the
office new union application forms and new dues deductions authorizations for
signature by said employees. When such union matters were distributed for signa-
ture, they were handed to the employees just as any other piece of paper involved
in the employer-employee relationship was handled, such as insurance forms, the
printed form authorizing the Respondent to pay the employees' dues to Local 1205
and innumerable other items.
In fact, many of the employees did not know that they were members of a union
or had a bargaining representative until sometime during the year 1956 when Re-
spondent began to attach to the individual employee's paycheck a receipt for the
payment of $12 union dues for the quarter.39
Some of the employees had had medical bills paid by the Local 1205 insurance
coverage. Apparently Respondent also had a separate health and welfare insurance
coverage for its employees so that the employees were not sure from which fund
the bills had been paid. But at least some of the employees recognized from these
receipts that there was a union in the picture some place.
. In or about April 1958, Respondent and Local 1205 executed a new 2-year agree-
ment purporting to cover the Respondent's production and maintenance employees.
There is no showing in this record by whom this agreement was negotiated. There is
certainly no evidence in this record that any of the employees were consulted on
the demands to be made in negotiations, assisted at the negotiations, ratified the
agreement when made, or, in fact, knew of the existence of the negotiations or of
the agreement or were ever permitted to see the executed agreement until the inter-
views of February 1959, when Robert Cadillac informed the employees that the
Respondent had a contract with Local 1205 which it did not intend to break and
left a copy of that agreement in their presence for their perusal at the same time
that he showed them the Respondent's books as the underlying documents to prove
the payment by the Respondent to Local 1205 of the dues for the employees.
At the hearing the Respondent pointed out as a "benefit" it had given to its
employees the fact that all of its employees were being paid 5 to 10 cents per hour
more than was required under the contract with Local 1205 and that the Respondent
was recognizing more paid holidays than required by the terms of the agreement.
In fact the collective agreement provided for a classification of "laborer" despite
the fact that the Respondent had no such classification of employees. Although the
39 Actually for anyone not versed in the American labor movement, these receipts
might have been most anything despite the printed words "Local No 1205 " The only
other identifying insignia was a lightly printed watermark containing the initials of the
International Union
AACON CONTRACTING COMPANY, INC. 1273
Respondent claimed these matters as "benefits" given to the employees by the Re-
spondent , it could be argued that, perhaps , the representatives of the employees had
misjudged the Respondent 's willingness to pay when he-negotiated the agreement on
behalf of the employees.
There is no evidence in this record that Local 1205 ever handled a grievance on
behalf of any of the employee -members until January 1959. In fact , Robert
Cadillac pointed out in his testimony that he handled grievances promptly so that
there would be no need for the intervention of the Union or Brovarski . Indeed, John
Cadillac criticized Sparks for having taken his grievance about his second layoff
to the New York State Labor Board and thence to Brovarski before having taken
it, up with one of the Cadillacs because his actions had "embarrassed " Respondent
with the Union. - -
The undisputed evidence in this record is that the first time the employees ever
saw Brovarski at the plant was on February 16. Brovarski returned on February
18 when the evidence proved that Robert Cadillac had telephoned him to come to
the plant to help him about the Sparks' matter.
In short , it appears that at least until March 1959 , the Respondent was paying
Local 1205 $4 per man per month of its own money in order to_have the employees
covered under the insurance plan of Local 1205 and; perhaps , • in order to enjoy
"labor peace."
Beginning about February 1959, the Respondent began an active campaign of-
assistance to Local 1205 by interfering with, coercing, and restraining its employees
in every attempt on their part to change the status quo by either replacing Local 1205
as their bargaining agent or forcing Local 1205 to represent them ' instead of the
management.
But in view of the financial payments of company funds to Local 1205 for these
many years, the Respondent's distribution of union application forms, union author-
ization cards, union receipts , and union badges to the employees as well as the total
nonfeasance of Local 1205 as a representative of the Respondent 's employees, the
Trial Examiner must find that - the Respondent interfered with the formation and
administration -of Local 1205 and, contributed financial and other support to it in
violation of Section'8 (a) (2) of the Act.
b. The discharges
(1) Sparks-Morales
John Cadillac had scarcely succeeded in eliminating the first threat to the happy
relationship between Respondent and Local 1205 by securing the dismissal of the
first decertification petition against Local 1205, when Sparks took his grievance over
his second layoff on January 24 to Local 1205 via the New York Labor Relations
Board and successfully secured his reinstatement on February 4. Cadillac did not
appreciate - having any employees process a grievance against Respondent through
the New York Labor Relations Board and Local 1205 and told Sparks so in no
uncertain terms while reinstating him. This was the second threat to the status quo.
On February 4 Sparks was deliberately, but supposedly temporarily, placed as
the washer on the wash rack, a new job for him, where he would have little, if any,
opportunity to speak to any of the employees and where his only contact with them
would be through Morales,who drove the trucks away from the wash rack after
washing.
In view of the Respondent 's defense here , it is significant that Sparks ' work on
the -wash rack was apparently satisfactory to Camerone and Buetti . although em-
ployee Charles Barrett, whom Sparks had replaced on the wash rack , was sent
back to assist Sparks on a few occasions prior to February 16 40
When Robert Cadillac returned from his vacation on February 16, he was promptly
informed of the decertification petition and the reinstatement of Sparks.
And on 'the same day he received a visit from Brovarski , which according to both
men, dealt with ' the petition which Sparks was kno w n to have authored , circulated,
and presented on February 11 to Local 1205 demanding, among other things, that
the employees be permitted to pay their own dues to Local 1205 and other reforms
designed, to force Local 1205 to become a real representative of the employees.
Cadillac admitted that during this interview Brovarski pulled out a paper from his
pocket and stated that he had 30 or 40 employees who would dispute Cadillac's.
denial of the fact that the Respondent was paying the dues to Local 1205. Obviously
this was the Sparks ' petition.
4" The testimony as to the number, length, and reasons for this assistance was vague
and indefinite.
1274: DECISIONS OF NATIONAL LABOR RELATIONS-BOARD
Although Brovarski - testified ,t rather --` iricreditably in view of 'all' the testimony;-
that he never disclosed the names of any of the signers of this petition to anyone,
Robert ' Cadillac admitted that it was "common knowledge" around the'planf that,
Sparks had so authored and circulated this petition . The testimony of Respondent's
witnesses , Ortiz and Charles Barrett , confirms this admission .41 " - -
The numerous derogatory remarks during the plant meetings and individual
interviews by Cadillac to the men who had informed Brovarski that Respondent was
paying their dues are proof of the Respondent 's dislike of this activity by Sparks.
Promptly after Brovarski 's first visit to the plant on February 16 Robert Cadillac:
testified that he began to grow dissatisfied with the work of Sparks at the wash rack.
On the 17th , Cadillac telephoned Brovarski about Sparks but was unable to reach
him until the 18th when Brovarski came to the plant at Cadillac 's request and'
proceeded , when the subject of Brovarski 's broken promise to hold a plant meeting
on-the 16th came up, to berate Sparks and to warn him that the Union would not
permit "feather bedding." 42 To this Cadillac added his own warning to Sparks by,
reminding Sparks that the trucks were still coming from the wash rack dirty.
The whole tenor of this incident leads the Trial Examiner to the conclusion that,
during this interview , Brovarski did in fact accuse Sparks and Morales of having
started "this whole mess" with the Union , and it- is so found. " -
Morales was suspect in the Respondent 's eyes because he was Sparks' only visible
contact with the rest of the employees and he had signed the Sparks ' petition.
The Trial Examiner is convinced , and therefore finds, that Sparks' alleged "poor
workmanship" and Morales ' alleged "quitting" by reasons of having donned his
suit coat after 1i/2 hours of overtime work and after having admittedly reuested
both his foreman and Buetti , both of whom had authority to release him' under
normal circumstances but who in this instance both referred ' the matter to Cadillac,
to allow him to cease work because of his physical condition , were mere pretexts
used by the Respondent to attempt to disguise the discriminatory nature of 'their
discharges on February 18 and 19 ; respectively.
This conclusion is corroborated by, the affidavit of March 19 signed by both
Cadillacs and attached to the papers in the Respondent 's injunction proceeding which
states in pertinent part: "
9. We were threatened by Sparks , who is a defendant and former employee,
and who has a record of having been convicted in the county court of Kings
for assault with a gun , and received a suspended sentence , and who is now
arrested on another charge, and by Morales , that unless we agreed to recognize
them as the spokesnien for the employees and knuckle under to their demands,
and disaffiliated ourselves from our collective agreement with Local 1205, and
otherwise conform with all of their outlandish whims and desires , that they
would see to it that our plant woidd be shut down and that our workers would
dil be called out on strike. These threats were made in person and by tele-
phone , and, we have reported these incidents to the office of the District
Attorney of Kings County , who is presently processing this whole matter.43
[Emphasis supplied.]
Rightly or wrongly , the Cadillacs credited Morales with being a leader, like
Sparks, in the concerted action of the employees against the company =dominated
Local 1205, and therefore , discharged Morales on the pretext that he had "quit"
just as they discharged Sparks the day before on the pretext of poor workmanship.
Accordingly , the Trial Examiner is convinced and, therefore , must find that
Respondent discharged Sparks and Morales in order ' to discourage concerted activity
against Local 1205 , and to encourage membership in Local 1205' in violation of
Section 8 (a) (1) and ( 3) of the Act.
(2) The six discharges of March 16
By. February 19, if not before , Respondent knew that Manuel Rosa assisted
by Gabriel Rosa, Santiago , Martinez , Soney , and Pratts 44 were all busily engaged
'I Barrett testified that he had signed the Sparks' petition at Sparks ' request on the
same day Sparks was discharged , February 18, and that he reported the incident to the
Cadillac's a couple of days thereafter . Barrett was obviously mistaken about the dates
because the signed petition was in Brovarski 's hands by the evening of February 11.
The report to the Cadillacs must have been made prior to February 18.
'a Brovarski 's irritation at Sparks was still evident in his tone of voice as he testified
about the incident at the hearing.
63 The record is clear that the Cadillacs first visited the district attorney on March 16
when they were told that his office was not interested in any "union disputes."
44 One of Respondent 's original informants, Ortiz, also included Sparks in this group.
AACON CONTRACTING COMPANY, INC. 1275
in their second effort to disturb this status quo by again seeking signatures to another
decertification petition against Local 1205.
It is significant that Rosa and Santiago were two of the first employees called by
Robert Cadillac for individual interviews on that day. It is further significant that
on the following day, February 20, Cadillac recalled Rosa and accused him of
"blackmailing" Respondent by securing signatures for the decertification petition,
threatened him with jail, and, in an effort to "shake the truth" out of this "quiet,"
"very courteous," hardworking employee, made his pretense of telephoning Brovarski
to find out if Rosa had signed the Sparks' petition and of producing three legal looking
documents which he claimed to be statements regarding alleged "threats." 45 Cadillac
testified that he did not "pointedly" question Rosa about the threats at either of these
meetings. But Cadillac ended the two interviews by threatening Rosa with discharge
if and when he secured "more evidence."
Brovarski also knew of Rosa's leadership in the movement against Local 1205
when he called Rosa to task for that activity during the meeting he held with the
employees of the Respondent a few days later.
On March 16, Robert Cadillac called the same six employees, the two Rosas,
Santiago, Martinez, Soney, and Pratts, and discharged them allegedly for "conduct
unbecoming an employee" referring the men to the unemployment compensation
board or to the National Labor Relations Board for further details as to the cause of
their discharge.
Apparently the "more evidence" to which Cadillac had referred on February 20
had been secured by March 16. But Cadillac admitted that there had been no
further reports of threats from February 19 to March 16. The only change in that
evidence by March 1.6 was that, upon advice of counsel, Respondent had had the
evidence of the original threats (prior to February 19) reduced to writing. This
there was no "more evidence," at least as to threats.
On the other hand, despite the lack of any additional evidence regarding threats,
by March 16 Cadillac did have "more evidence" against the Rosa group, because on
February 24 Rosa had filed a charge with the Board alleging coercion and discrimina-
tion in the hire and tenure of employment and on March 3 a second decertification
petition against Local 1205 based upon the signatures obtained by the Rosa group
had been filed with the Board. Clearly, therefore, the "more evidence" upon which
Cadillac had waited before discharging the men was evidence that these men intended
to continue their concerted efforts to secure the rights guaranteed them by the Act
despite the Respondent's campaign of interference, restraint, and coercion to prevent
them from, doing just that. Thus it is clear that the Respondent's motivation in dis-
charging these six employees, again on advice of counsel, on March 16 was the fact
that Respondent then had proof that these individuals were continuing their con-
certed efforts to secure the rights guaranteed them by the Act-and not because of
the stale claims of threats supposedly made some month or 6 weeks before.
Thus, as the Respondent admittedly knew that there had been no further instances
of threats from February 19 to March 16, its motivation in reviving these stale
charges of threats on March 13-14,48 must necessarily have been its knowledge that
concerted action continued, despite Respondent's efforts to prevent it.
On March 116, the Cadillacs took the statements of these stale charges to the
district attorney, who refused to permit his office to become embroiled in a "labor
dispute." So on the afternoon of March 16, acting once again on advice of counsel,
the Respondent discharged Rosa and his five known assistants precipitously and for
the indefinite offense of "conduct unbefitting an employee." The purpose of the
sudden revival of these old charges, thus became apparent-a pretext for the
discharges.
The March 19 affidavit of John and Robert Cadillac again adds confirmation
when it states:
About two months ago, a little corps of die hard , rebellious employees, inspired
by two employees who are defendants in this case, mainly Sparks and Morales,
both of whom have criminal records, tried to create chaos and disrupt our good
labor relations , and undermine our collective agreement by intimidating and
coercing their fellow workers in going to homes and threatening them with
weapons and dangerous instruments, including guns and knives, and threatening
to inflict bodily injury to them and their families, unless they would affiliate
themselves with the illegal project they had undertaken, perhaps emulating
their recent hero in Cuba, Fidel Castro, in trying to overthrow that which was
45 Actually these statements were not made until March 14.
49 The merits of these charges have been considered under a section of this report relat-
ing to the Respondent's defenses.
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
going along peacefully and smoothly, and establish some form of anarchy under
which they would take over our business... ?'+ [Emphasis supplied.]
-The evidence is conclusive that Respondent's prime purpose throughout was to
prevent any disruption of its relationship with Local 1205, and that any interest it
indicated in the so-called threats was subsidiary to and solely for the purpose of
using the same to maintain the status quo with Local 1205. If the Respondent had
been sincerely interested in the so-called threats,, why then did they treat these
accusations so cavalierly for such an extended period, only to suddenly revive them
a month or more later, promptly after counsel had advised the discharge of these
six individuals when it became obvious that they were not to be deterred from their
concerted activities to rid themselves of Local 1205 despite Respondent's interference
and coercion? The answer to that is simple enough, but becomes even simpler when
we recall that these accusations were known to be substantially baseless.
Therefore, the Trial Examiner can come to no conclusion other than that Re-
spondent discharged Manuel Rosa, Gabriel Rosa, Santiago, Pratts, Martinez, and
Soney on March 16 because'of their union activities against Local 1205 and in order
to discourage the concerted, activities of its employees in their efforts to free them-
selves from the domination of the Respondent and Local 1205 in violation of Section
8(a)(1) and (3) of the Act.
(3) The discharges of the strikers
In order to show the discriminatory nature of the discharges of all those employees
who made common cause with the previously discharged employees by joining the
picket line or merely withholding their service from the Respondent, it suffices to
record here only the testimony of Robert Cadillac. In speaking of employee Suarez,
who was one of the employees who joined Rosa and the pickets on March 19, Robert
Cadillac testified:""' [Suarez] stayed out on the 19th and, of course, we had to let
him go." - [Emphasis supplied.]
And in speaking of employee Alverio, who headed the group of -a dozen or so
employees who informed Robert Cadillac in the plant on March 23 that they were
going to help their countrymen by ceasing to work behind a picket line, Cadillac
testified: "I told [Alverio and the group] that if they went out, I would have to let
them go [discharge them]."
In accord with these remarks, Robert Cadillac had Suarez, Alverio, and the others
given their checks, either on the picket line or in some cases at a subsequent date,
in full payment for the time worked and the holiday allowance due to them. In
other words Respondent discharged these employees because they joined the picket
line: _ Those employees have not been reinstated.
It is now too well settled to require the citation of authority that an employee who
is discharged because he joins an unfair labor practice strike to protest the dis-
criminatory discharge of a fellow employee is himself a victim of a violation of
Section 8(a)(1) and (3) of, the Act. This is the case here of all those employees
who were discharged like'Suarez and Alverio for having joined the picket line or
the unfair labor practice strike of March 19.
Here the strike of March 19 was an unfair labor practice strike, as it was caused-
by the discriminatory discharge of Rosa and his five lieutenants, and all those who
were thereafter discharged because they joined that strike, such as Suarez and Alveno,
are also victims of a violation of Section 8(a)(1) and (3) by. Respondent.
The result would be the same as to those who subsequently acted in concert in
joining the strike even though it should be held (which it is not) that the discharges,
of Rosa et al. were not violations of the Act.48
Hence, under the admitted facts here, the Trial Examiner must find that the Re-
spondent discriminatorily discharged all those employees who Joined the original
six dischargees on the picket line in violation of Section 8(a) (1) and (3) of the Act.
c. Interference, restraint, and coercion
The facts concerning the interference, restraint, and coercion, exercised- upon its
employees by Respondent are so plain and clear as not to require any detailed
exposition of them here. , It would seem sufficient merely to mention the general
categories of such usual -and ordinary violations of Section 8(a)(1) of the Act:
41 The impression created by the above paragraph that "weapons" and "guns and
knives" were present at these visits is unwarranted by the evidence, as shown heretofore
4l-N L.R B. v: J., E McCatron- et al. d/b/a Idaho Pine Molding Co , 216 F 2d 212
(C A 9) ; cert. denied 348 U.S. M. John S. Swift Company, Inc., 124 NLRB 394
AACON CONTRACTING COMPANY, INC . 1277
1. Respondent through Robert Cadillac and Camerone systematically inter-
rogated employees individually regarding their union activities,, sympathies, and
whether they had signed "papers, and cards." 49
2. Respondent through Robert Cadillac requested Rosa to report on the union
or concerted activities of others. It is clear from the fact that the Respondent was
always forewarned regarding strike action and other concerted activities that
Respondent succeeded in its efforts to secure reports on such activities.
3. The Respondent through Robert Cadillac and Camerone threatened the em-
ployees. with reprisals in the form. of lost benefits and layoffs if any union other
than Local 1205 succeeded in becoming the bargaining representative for the
employees.
4. The,Respondent throughaRobert Cadillac and Camerone threatened employees
with discharge if they persisted in their anti-Local 1205 concerted efforts.
5. The Respondent through Robert Cadillac threatened to close the plant if the
Respondent were forced to "knuckle down" to a Communist union while at the
same time informing the employees that the only two organizations in which the
employees had evinced any interest, Actu and District 65, were such Communist
organizations.
6. The Respondent through Robert Cadillac threatened Rosa with arrest if he
continued to "blackmail" the Respondent by"securing signatures to his anti-Local
1205 petitions.
In addition to these ordinary, prosaic, and clear-cut violations of Section 8(a) (1)
of the Act, two other slightly more complex violations were fully litigated at the
hearing and, therefore, will be considered here. These are: (1) The arrest of the
Rosa brothers, Santiago, Martinez, Soney, and Pratts on April 6; and (2) the
statements purporting to authorize the National Labor Relations Board to withdraw
certain names from the charges against Respondent which the Respondent had
induced many strikers to execute in May and June 1959 with implied promises of
prompt reinstatements.
As to the, arrests of April 6 the undisputed evidence from, witnesses of the Re-
spondent proven conclusively that one of the fast things which Attorney Raphael
did after being, hired to handle the Respondent's labor troubles was to ferret out
the criminal records of* the employees involved in the concerted activities; that,
acting on advice of counsel, the Respondent induced employees Ortiz, Pagan, and
Arroyo to sign statements regarding the threats allegedly made by those seeking
signatures of the employees of the anti-Local 1205 petitions, which statements were
thereafter used as the pretext for the discharge of the men mentioned therein on
the following workday; that when the Respondent was forewarned that the men
so discriminatorily, discharged on March 16 intended to resume picketing again in
April, Attorney Raphael was so informed and thereupon told Robert Cadillac that,
"if they did come back, that was the,last opportunity [Raphael was] going to take
their word, they had their last opportunity, and that we were going to have ,them
arrested somehow or other.". [Emphasis supplied.]
On April 6 50 Rosa and his fellow strikers gathered near the Respondent's plant
intending to resume picketing that morning, as Respondent had been advised, but
refrained because the employees showed insufficient interest.
However, that afternoon the Cadillacs drove the three employees who had signed
statements on March 14, Ortiz, Arroyo, and Pagan, plus three other employees who
claimed to have been threatened on the picket line, together with Foreman Gonzales,
who acted as interpreter, to the district attorney's office where all six told their
stories to the district attorney.51 After the Cadillacs,- had, supplied the district at-
torney's office with the addresses of the, six strikers, the men were arrested, taken
to the district attorney's office, questioned far 'into the night, and finally handed
subpenas requiring their appearance before the grand jury on April 14 52 The em-
49 Walton Manufacturing Company, 124 NLRB 1331.
60 Originally the picketing was supposed to have resumed on April 4, but was postponed
on that occasion because Schulder of Actu had been arrested while engaged in some
activity having nothing to do with the Respondent.
m Robert Cadillac contended that these employees went "voluntarily" to the district
attorney's office but the evidence discloses that the men agreed to go to the district attorney
only after Robert Cadillac had suggested that visit. The employees were willing to go but
the impetus for the visit came from the Respondent, not from the employees.
52 Subsequently the return date on the subpenas was changed to April 21 and thereafter
postponed indefinitely. At the time of the close of the present hearing no further action
had been taken by the district attorney's office.
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees from the plant witnessed this handling of the arrested men at the district
attorney's office. They must have been impressed.
The history of this whole episode of April 6 from the Respondent's sudden, but
belated, revival of these stale threat stories on March 13; from Respondent's abortive
attempt to secure some action based on such written reports from the district
attorney on March 16, together with the obvious use thereof in the discharges of
that same day; from Respondent counsel 's stated determination to have the men
arrested "somehow or other" if picketing was resumed together with Respondent's
instigation of the arrests on April 6 by taking the signers to the district attorney's
office and supplying the arresting officers with the addresses even though picketing
was not resumed,53 requires the finding here that Respondent intentionally and actively
instigated and assisted in bringing about the arrests of the known leaders of the
concerted activity in order to prevent them from engaging further in the legitimate
concerted action of picketing Respondent to protest the unfair labor practices al-
ready committed by Respondent. This is a violation of Section 8(a)(1) of the Act.
In addition to the restraint and coercion directly visited upon these six leaders
of the concerted activity against Local 1205, there were at the district attorney's
office six employees then employed by Respondent and brought there by Respondent
who witnessed the inconvenience, harassment, and humiliation inflicted on these
leaders by reason of Respondent's instigation of action by said district attorney
against them because of their temerity in continuing their concerted activities despite
Respondent's campaign of coercion to the contrary. The sight must necessarily
have had its deterrent effect on any thought they might have harbored of continuing
the efforts the six had made to secure the rights guaranteed employees by the Act.
Furthermore the reports made in the normal course of events by these witnesses to
the remainder of the employees at the plant must necessarily have convinced those
employees also of the futility of continuing any similar concerted efforts in face
of the obvious influence of Respondent upon the actions of the district attorney
against those who attempted such concerted efforts contrary to Respondent's wishes.
This necessarily is interference, restraint, and coercion of the type so carefully set
forth by the Board in J. W. Banta Towing Company, Inc. et al.54 The Trial Exam-
iner, therefore, must find that for the reasons there set forth this action by Re-
spondent constituted interference, restraint, and coercion in violation of Section
8(a)( I) of the Act.
The other unusual type of interference, restraint, and coercion grows out of the
further action of Respondent undertaken upon advice of counsel in May and June
to induce all those strikers whose names were mentioned in the charges filed to
sign statements stating that their names were included in said charges without
authorization, that said charges were untrue and, therefore, authorizing the Board
to withdraw said names from said charges.
In the first place the Act authorizes any "individual" to file such charges. This
authorization must necessarily include the concomitant right to have such charges
heard and decided upon all the evidence available-not upon such evidence as may
remain available after the charged employer has succeeded in inducing persons
included in said charges to withdraw therefrom.
In the second place the evidence here proves that many of the discharged strikers
were induced to sign such alleged withdrawal authorizations by implied promises
made by agents of Respondent that employees signing such withdrawals would be
assisted in securing reinstatement to employment as soon as the case was "settled."
This obviously is discriminatory and coercive at least as far as those who refused
to sign such withdrawal and who insisted upon having :the public and private rights
determined in accordance with the provisions of the Act, i.e., by the Board.
The Trial Examiner, therefore, must find that Respondent's efforts here to have
each and every employee whose rights are here involved execute such a withdrawal
request amounted to interference, restraint, and coercion within the meaning of
Section 8(a) (1) of the Act. It is so found-55
K3 The fact that Respondent's officials were so actively engaged in instigating, and
assisting in, the arrests, even though picketing was not resumed quite clearly disproves
:counsel's attempted explanation of his threat to have the men arrested "somehow or
other" was a reference only to arrests for disorderly conduct on the picket line.
54 See 116 NLRB 1787 at pp. 1796 and 1805-1806, reversed on other grounds 253 F. 2d
66 (C.A. 7) .
55Local 294, etc. (Valetta Trucking Company), 116 NLRB 842, 844. Clearfield Cheese
Company, Inc., 106 NLRB 417.
AACON CONTRACTING COMPANY, INC. 1279
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in numerous unfair labor prac-
tices, it will be recommended that it cease and desist therefrom, and that it take
certain affirmative action designed to effectuate the policies of the Act.
It having been found that the Respondent discriminated in regard to the hire and
tenure of employment of the employees listed below by discharging each of them,
the Trial Examiner will recommend that the Respondent offer to each of them
immediate and full reinstatement to his former or substantially equivalent position
without prejudice to his seniority or other rights and privileges and make each of
them whole for any loss of pay he may have suffered by reason of said discrimina-
tion by payment to him of a sum of money equal to that which he would have
earned as wages from the date of the discrimination against him to the date of the
offer of reinstatement less his net earnings during such period in accordance with
the formula set forth in F. W. Woolworth Company, 90 NLRB 289:
Ivan Sparks Miguel Ruiz
Ernesto Morales Israel Colon
Manuel Rosa Marcelius Cordova
Gabriel Rosa Richardo Pacheco
Florentino Martinez Juan Acevedo
Edward Soney Victor Calcano
Gilberto Pratts Anibrosio Santana
Ernesto Santiago Hemesio Alverio
.Juan Figueroa Herbiberto Calcano
Carlos Dominguez Hipolito Rios
Isaias Suarez Antonio Agosto
Francisco Caneda Nester Hernandez
Francisco Lopes
It having been found that the Respondent has engaged in various other unfair
Gabor practices, the Trial Examiner will order other appropriate affirmative and
negative relief.
Because of the variety of the unfair labor practices engaged in by the Respondent,
the Trial Examiner senses an attitude of general opposition to the purposes of the
Act in general, and hence the Trial Examiner deems it necessary to order that the
Respondent cease and desist from in any manner infringing upon the rights guar-
anteed in Section 7 of the Act.
CONCLUSIONS OF LAW
1. Local 1205, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen, and Helpers of America, and Association of Catholic Trade Unionists are
labor organizations within the meaning of Section 2(5) of the Act.
2. By discharging the employees named above in "The Remedy" thereby dis-
criminating in regard to their hire and tenure of employment, and discouraging
concerted activity among its employees, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a)(3) and
(1) of the Act.
3. By dominating and interfering with the administration of Local 1205, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of
America, and contributing financial and other support to it, the Respondent has
engaged in unfair labor practices within the meaning of Section 8(a) (2) of the Act.
4. By interfering with, restraining, and coercing its employees with the exercise
of the rights guaranteed to them in Section 7 of the Act, the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8(a) (1)
of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]