Alonso & Carus Iron Works, Inc.

National Labor Relations Board - Administrative Judge Opinions

Mar 10, 2011

24-CA-011558 (N.L.R.B. Mar. 10, 2011)

JD–12–11
San Juan, PR
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ALONSO & CARUS IRON WORKS, INC.,
Respondent, Case 24–CA–11558
and
UNITED STEEL WORKERS, AFL–CIO,
LOCAL 6873,
Charging Party,
Jose L. Ortiz, Esq., for the General Counsel.
Luis M. Ferrer Medina and Fernando A. Baerga Ibanez,
Esqs. (Baerga & Quintana), of San Juan, Puerto Rico,
for the Respondent.
Ruben Cosme Ayala, of Bayamon, Puerto Rico, for the
Charging Party.
DECISION
Statement of the Case
MICHAEL A. ROSAS, Administrative Law Judge. This case was tried in San Juan,
Puerto Rico, on December 14, 2010.1 The charge was filed June 24, the amended charge was
filed September 8, the second amended charge was filed November 30, and the complaint
issued September 30. The complaint alleges that Alonso & Carus Iron Works, Inc. (the
Company or Respondent) violated Section 8(a)(1) of the National Labor Relations Act (the Act)
by denying Carlos Camacho and Hector Rivera the right to exercise their Weingarten rights prior
to discharging them, and threatening to discharge Weingarten representatives. Additionally,
over objection, the General Counsel’s trial motion to amend the complaint was granted as
follows: (1) subparagraph 1(c) is added to the complaint to refer to the second amended
charge; (2) subparagraph 7(a) is added to allege that a company supervisor, Jose
Hernandez, on or about February 19, threatened to discharge an employee if he attempted
to represent an employee in an interview; and (3) subparagraph 7(b) is added to allege
that Rule 46 of the Company’s employee rule book, which prohibits union-related meetings
or activities during worktime and without prior notification to management, was overly
broad and unlawful. The Company denied the material allegations of the complaint. With
respect to Rule 46, the Company contends that the rule, when considered in context with
the collective-bargaining agreement between the parties, does not restrain the right of
employees to meet over union matters.2
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Company, I make the following

1 All dates are in 2010 unless otherwise indicated.
2 Tr. 7–11.
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Findings of Fact
I. Jurisdiction
The Company, a corporation, manufactures and produces iron and steel products at its
facility in Catano, Puerto Rico, where it annually purchases and receives goods valued in
excess of $50,000 directly from points outside the Commonwealth of Puerto Rico. The
Company admits, and I find that, it is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act and that the United Steel Workers, AFL–CIO, Local 6873
(Union or Local 6873), is a labor organization within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. The Parties
The Company’s managers and supervisors involved in the controversy include: Jose
Soto, the vice-president for production; Eileen Lugo, the human resources director; Jose
Hernandez, production shop manager; and Ana Luisa Osorio and Hector Negron, supervisors.3
The two employees who complained that their Weingarten rights were denied, Carlos Camacho
and Hector Rivera, are members of Local 6873. Camacho was employed as a sandblaster and
painter; Rivera was employed for 31 years as a fabricator and beam cutter.
The Company’s Employee Manual includes rules regulating employees terms and
conditions of employment. The provision at issue in this case, Rule 46, prohibits employees
from “[holding] meetings and/or activities related to the Union during working hours and without
prior notification to management.” The discipline for employees who violate that rule is
progressively tiered: a written warning for the first violation; a 1-week suspension for the second
violation; and discharge for the third violation.4

3 The Company admitted that Hernandez and Osorio were supervisors as defined by
Section 2(11) of the Act. Negron was not alleged as a supervisor within the meaning of the Act,
but Hernandez testified that Negron holds the same position and same degree of responsibility
as Osorio (Tr. 116–117).
4 Exh. B to the Company’s position statement, dated December 3, 2010, and received as
GC Exh. 2, is the original Spanish language copy of Rule 46. On January 14, 2011, the General
Counsel filed a motion submitting the translation of Rule 46. I have designated it as ALJ Exh. 1.
The proposed translation was agreed to by the parties, except as to the translation for “horas
laborales.” The General Counsel contends that the proper translation is “work hours,” while the
Company asserts that it should be “work time.” In its reply, filed in the e-room on January 19,
2011, as attachment 1 to the Company’s brief, the Company submitted a certified translation of
the term by U.S. Court Certified Interpreter Aida Torres. I have redesignated that document as
ALJ Exh. 2. She provided a detailed and credible explanation as to why the correct term should
be “working hours,” a term not previously used by either party. I do not, however, give weight to
Ms. Torres’ assertion, as well as those of counsel, that “as used in Puerto Rico the term refers
only to hours spent by an employee working, excluding time that the employee is not working.”
Such an assertion should have been raised at trial and subjected to cross-examination.
Accordingly, the General Counsel’s motion is granted, except to the extent that the term “work
hours” in the proposed translation shall be deemed changed to “working hours.” The motion and
reply are received in evidence as ALJ Exh. 1–2.
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The Company contends that the legality of Rule 46 must be considered in context with
the current collective-bargaining agreement (CBA) between the parties, which is effective from
May 1, 2010, to April 30, 2014.5 The Company and the Union were previously bound by a CBA
that was in effect from May 1, 2006, to April 30, 2010.6 The current CBA provides, in pertinent
part, at Article XIV:
The Union shall have the right to celebrate meetings at a convenient site within the
premises of the plant in the Company’s property. Due to the distance in which the
employees live from the worksite, it is agreed that the Company will give the employees
one (1) hour monthly, if necessary, to conduct their meetings. The Union agrees to use
the last hour in the regular work shift, that is, 2:30 p.m. The Company will pay these at
the regular rate of pay to employees who attend the meetings. This hour will be
considered as time worked to any employee who attends. The Union will notify the
Company with sufficient time before the celebration of any Union meeting.
The Company will provide for Union use and its employees, a convenient room which
will serve as lunchroom and meeting room.
The Company accepts to compensate with money, exclusively its union employees, the
monthly hour not used during the year for Union meetings and the Union agrees not
arrange for any other meetings outside from the agreed upon hours. This time will be
paid during the month of December, before Christmas.
All employees will punch its time card at the assistance clock before leaving the unit.
Field employees will be notified with sufficient time so that they may attend these
meetings.7
B. Carlos Camacho
1. Prior discipline
Carlos Camacho is a member of the bargaining unit. On March 30, 2009, he was
involved in a workplace altercation with coworker Juan Ramos. After an investigation, the
Company determined that Camacho provoked Ramos to physically assault him. The Company
further concluded that Camacho’s conduct constituted grounds for a discharge. However, after
negotiations with Eric Maldonado, Local 6873’s president at the time, the Company agreed to
reduce the discipline to a 1-month suspension without pay. On June 4, 2009, Camacho and
Maldonado signed a “last chance” agreement acknowledging Camacho’s culpability for the
incident and the consequences of any further transgression. The agreement stated, in pertinent
part:
We advise you that in the moment that you commit any violation (serious or minor), you
will be immediately discharged without the opportunity for the union to represent you
once again. This includes, but is not limited to, your agreement to perform the tasks

5 The Company belatedly raises Rule 25 in its brief as proof that it does not maintain a ban
on other nonwork related matters. (Attachment 2 to R. Brief.) As the document was not offered
into evidence at trial, I have not given it any weight.
6 Stipulations of Fact 1–2.
7 R. Exh. 5.
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designated by your supervisors, without objecting to the same and that you will maintain
a harmonious relationship with the rest of your coworkers.8
2. The February 18, 2010 incident
On February 18, 2010, Camacho was preparing to operate a crane when Osorio
approached him. Osorio explained that she needed the crane to clear the platform. She
further directed Camacho to help Juan Ramos and Jose DeJesus, the employees who
were going to perform the work. Camacho refused, threw the crane control over the
platform, turned his back to Osorio, and started walking away. Osorio insisted that
Camacho return and comply with her instruction, but he ignored her request and
commented that he would not help those “dogs” because nobody helped him. He also
alluded to past problems with Ramos. Osorio told Camacho to go to the shop office to
meet with Hernandez. Camacho washed his hands and went to the shop office.9
Camacho and Osorio met with Hernandez at the shop office for approximately 30
minutes. Camacho began the meeting by telling Camacho that he could not stand anymore
instructions by Osorio, he was constantly changed from one job to another, and he previously
told Hernandez that he did not want to work with Ramos because he felt in danger.10
Hernandez told Camacho that the job was not dangerous and he should follow Osorio’s orders,
but Camacho responded that he did not want to follow her instructions any longer, was tired of
Osorio, and noted that Hernandez knew that he did not like to receive orders from women.
Osorio then explained her version of the incident, which Camacho conceded. Hernandez then
told Camacho that he had already been given several chances for outbursts against
Osorio and other coworkers. Camacho began crying and begged Hernandez not to take
this incident to the next level because he knew he would lose his job. Hernandez told
Camacho to go home, and informed him that the incident would be reported to the human
resources office and he would be notified the next day as to the Company’s decision.
During this meeting, Camacho did not request union representation or the presence of a
coworker.11

8 The terms of the letter, dated April 6, 2009, and signed by Jorge Ramos, the Company’s
president, was signed by Camacho and Maldonado nearly 2 months after the parties negotiated
a reduced penalty to suspension. (Jt. Exh. 1.)
9 In this sequence of events, I found Osorio more credible than Camacho. (Tr. 72–73.)
Camacho was somewhat evasive on cross-examination when asked to concede that he refused
to follow Osorio's instructions. After being instructed to respond to the question, he conceded
refusing her instructions. He did not, however, deny Osorio’s contention that he turned his back
on her and walked away, and that he frequently spoke negatively about coworkers. (Tr. 17–19,
29–30.)
10 Camacho insisted that Osorio knew he had problems working with Ramos, but conceded
that there had been no reported incidents since Camacho signed the last chance agreement in
April 2009. (Tr. 26, 31–32.)
11 I based my findings as to the discussions during this initial meeting on the testimony of
Hernandez and Osorio. (Tr. 73–75, 91–93, 108.) Camacho testified that he immediately
requested the presence of a union representative during his initial meeting with Hernandez and
Osorio, but Hernandez rejected that request and showed him a copy of the last chance
agreement. (Tr. 19–20, 32.) In contrast to the consistent and credible testimony of Hernandez
and Osorio denying that he made such a request, Camacho’s testimony was beset by
numerous inconsistencies. He was confronted twice on cross-examination with his prior
statement that Rivera did, in fact, arrive at the workshop office for that initial meeting.
Continued
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Shortly after meeting with Camacho, Hernandez and Osorio reported the incident to
Lugo by telephone. After detailing Camacho’s insubordinate conduct, they agreed with Lugo’s
position that Camacho should be terminated the following day pursuant to the terms of the
last chance agreement.12
3. The February 19 meeting
Camacho reported to work on February 19. At approximately 8:30 a.m., Negron told
him to report to Hernandez' office. On the way to Hernandez' office, Camacho stopped by
Rivera’s work area. Camacho asked Rivera to represent him in a meeting in Hernandez's
office. Rivera agreed, but needed to wash up first and inform his supervisor, Negron, as to
what he would be doing. However, when Rivera informed Negron that he would represent
Camacho in a meeting with management, Negron denied the request. He told Rivera that
Camacho “waived his rights to the union.” Negron also warned Rivera that he would be
discharged if he accompanied Camacho to the meeting. Rivera returned to his work area.13
When Camacho arrived, Hernandez told him to sit down and said he would return
shortly. Over an hour later, Hernandez returned and directed Camacho to accompany him
to Lugo’s office. As Rivera had not yet shown up, Camacho stated that he wanted union
representation at the meeting. Hernandez rejected the request on the grounds that
Camacho no longer had a right to union representation and the meeting was to “inform”
Camacho.14
Lugo, Hernandez, Osorio, and Camacho were present at the meeting. Lugo started
by asking Osorio and Hernandez questions regarding Camacho’s conduct on February 18.
Osorio said that Camacho offended and disrespected her, and did not comply with her
directive that he work with Ramos. Hernandez confirmed Osorio’s version. Lugo then
asked Camacho for his version of the incident. Camacho told her that he needed union
representation by either Rivera or Adolfo Ayala from the grievance committee. Hernandez
responded that if either of the two came up, they would be discharged. Lugo then read the
last chance agreement and informed Camacho that he was terminated. Camacho pleaded
for another chance. Lugo said Camacho had already been given enough chances and he
left shortly thereafter.15
_________________________
Twice, Camacho responded that he did not recall if that was the case; a third time, he
responded, “[b]ut I believe that he didn't.” He denied lying in his affidavit and suggested that his
statement merely meant that he “informed Mr. Rivera that I had been summoned to
Mr. Hernandez' office.” (Tr. 33–38.)
12 It is not disputed that the Company decided on February 18 to discharge Camacho on
February 19. (Tr. 108–118, 131–149; R. Exh. 1.)
13 This finding is based on the credible and unrefuted testimony of Camacho and Rivera.
(Tr. 21–22, 52–54.)
14 As to the issue regarding representation requests, I found Camacho more credible. (Tr.
22–24.) Hernandez denied twice that Camacho made such a request. However, he then
conceded, and the Company’s position statement confirmed, that Camacho gestured to Rivera
as they walked to Lugo’s office and, after ascertaining that Camacho wanted someone to
accompany him, told him that he did not need anyone. (Tr. 111–113; GC Exh. 4, p.2.)
15 Again, I found Camacho more credible on the issue of representation requests. Lugo,
Hernandez, and Osorio all denied that Camacho requested representation at the February 19
meeting. Camacho provided a detailed version of the meeting. (Tr. 24–26.) Lugo, Hernandez,
Continued
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Having already prepared an Employee Admonition form prior to the meeting, Lugo
had Osorio sign it as soon as Camacho left the meeting. Following the meeting, Lugo
wrote a summary of the events leading to Camacho’s discharge. Referring to the last
chance agreement, she concluded that Camacho “has an attitude problem and is
insubordinate. The Company has given him several opportunities and even so the
employee continues with his pattern of conduct, therefore, Management’s decision was to
enforce what was previously stipulated. We proceeded to discharge Mr. Camacho.”16
After the meeting, Camacho picked up his belongings, went to Rivera’s working
area, and informed him that he had been discharged. Rivera asked him for the discharge
letter, but Camacho explained that he was not provided with a copy of one. Rivera urged
him to return to get one. Negron, apparently hearing the conversation, chimed in that a
verbal discharge was in order and that Camacho did not need anything in writing. Rivera
disagreed and urged Camacho to return to get a copy. Camacho agreed and returned to
Lugo’s office, where she provided him with one.17
C. Hector Rivera
Hector Rivera is a member of the bargaining unit and has served as president of Local
6873 since February 2010. On Friday, May 7, Rivera got into a heated argument with coworker
_________________________
and Osorio, on the other hand, provided inconsistent versions. They each conveyed the sense
of a relatively quick meeting. Osorio testified that Lugo did not ask questions, simply read the
last chance letter to Camacho and told him he was discharged. (Tr. 77–78.) Hernandez testified
that Lugo asked Camacho why, having agreed to a last chance agreement, he continued
“behaving the same way.” A follow-up leading question sidestepped Camacho’s potential
response and went directly to Lugo informing Camacho that he was terminated. (Tr. 95–96.) He
was also confused as to whether it was Osorio or Lugo who showed Camacho the last chance
agreement on February 19. Finally, Lugo, having sat through all of the prior testimony, including
that provided by Hernandez and Osorio, also attempted to convey the notion that she conducted
a quick meeting at which she simply read the contents of the last chance agreement and then
informed Camacho that he was discharged. (Tr. 135–136.) To the contrary, her summary written
right after the meeting stated that “the incidents which occurred on 2/18/10 were discussed with
Mr. Camacho.” (Jt. Exh. 3.)
16 The circumstances regarding Osorio’s signature or nonsignature were confusing and
somewhat suspicious. There were two completed Employee Admonishment forms, both
appearing to contain Osorio’s signature. However, after contending that both forms were the
same and that “[s]ome days I change my handwriting,” she conceded that she signed only one
of the forms. Osorio could not explain who signed her name on the other. (Jt. Exh. 2(a); GC
Exh. 3; Tr. 84–89.) Lugo, addressing both documents, only added to the confusion. She
identified Jt. Exh. 2 as the form that was in Camacho’s file and maintained that GC Exh. 3 was a
copy of it. It is not, as the signatures are clearly different. (Tr. 137–138). As Lugo generated
the form and maintained it in her files, it is evident that she signed Osorio’s name to GC
Exh. 3. Why she would have done that is not clear, but illustrates her control over the
disciplinary process that unfolded. In any event, the whole episode further diminished the
credibility of Lugo, as well as Osorio.
17 On cross-examination, Camacho was confronted with his written statement to the Board
that did not mention that he went to look for Rivera. However, there is minimal significance
to such an omission, since any subsequent discussions with Rivera had no bearing on
what had already transpired in Lugo’s office. (Tr. 38–41.)
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Edgar Santiago. The argument was observed by Soto as he passed through their work area.
Rivera and Santiago ceased arguing when they saw Soto, but continued arguing after he left the
area. However, Hernandez also heard the commotion. The lunch bell rang and they separated.
Hernandez approached them and asked each one for his version. After listening to their
explanations, Hernandez told Rivera and Santiago to come to his office after lunch. Hernandez
also called Soto, as his supervisor, and asked him to attend the meeting.18
Hernandez and Soto were in the workshop office when Rivera and Santiago arrived at
1:30 p.m. With Soto present, Rivera asked why they were being called into the office.
Hernandez explained that he heard screaming and asked them what happened. Rivera initially
denied that anything significant occurred, but then admitted that the argument ensued
because Santiago was informing management about union organizing activity. Santiago
responded by urging Rivera to repeat what he said on the floor. Another argument ensued
and, during the exchange, Rivera hurled obscenities at Santiago. Hernandez interjected
that Rivera, having denied insulting Santiago, proceeded to do just that in their presence.
After some further arguing between Rivera and Santiago, Hernandez told Rivera that he
would inform the human resources department of his conduct. Rivera and Santiago were then
directed to return to work. At no time before or during the meeting in the shop office did either
Rivera or Santiago request the presence of another employee or union representative.19
As promised, Hernandez called Lugo and reported the incident. At Lugo’s request,
Hernandez wrote a report of the incident and emailed it to her.20 Lugo then scheduled a
meeting for 3:30 p.m. to inform Rivera of the discharge. Hernandez asked Rivera to attend
the meeting, but Rivera responded that he was being picked up for an appointment and did not
have alternate transportation available. Hernandez excused Rivera from attending the
meeting.21
The afternoon meeting was attended by Lugo, Santiago, Soto, and Hernandez.
After Santiago provided his version of the incident and left, Lugo, Soto, and Hernandez decided
that Rivera should be discharged because it was his third incident of misconduct within the past
year. Realizing, however, the significance of discharging Local 6873’s president, Lugo called
Union Representative Ruben Cosme and informed him of Rivera’s impending discharge. She
did not, however, inform Cosme that she would be meeting with Rivera on May 10, much less
offer him an opportunity to attend.22

18 Rivera did not dispute the testimony of Hernandez and Soto that the argument occurred
and they witnessed it. (Tr. 56–57, 97–100, 120–122.)
19 I relied on the testimony of Hernandez and Soto as to what transpired during the
afternoon meeting on May 7. Rivera’s version, combining a sense of defiance with ignorance as
to why he was there, indicates that he was poised for yet another tussle. He knew from his
earlier conversation with Hernandez that it was about his earlier argument with Santiago. In any
event, Rivera did not testify that he requested union or other representation on May 7, 2011. (Tr.
55–57, 113–114, 108–118, 120–122).
20 Jt. Exh. 4.
21 Rivera’s testimony that Hernandez excused his attendance at the meeting later that
afternoon was not disputed. (Tr. 57–58.)
22 Further diminishing her credibility with respect to the accuracy of her documentation,
Lugo’s subsequent memorandum omitted any reference to her meeting with Hernandez, Soto,
and Santiago on May 7. (Jt. Exh. 6.) Nevertheless, Cosme, who attended the trial on behalf of
the Charging Party, did not testify and there is no dispute as to what transpired at the afternoon
meeting. (Tr. 101–104, 116, 120–130, 141–144; R. Exh. 4.) However, Lugo, Hernandez, and
Continued
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About an hour after Rivera arrived at work during the morning of May 10,
Hernandez told him to report to Lugo's office. Rivera inquired as to the purpose of the
meeting. Hernandez responded that it was about his May 7 argument with Santiago.
Rivera said he needed either a union representative or one of the grievance committee
members, and had been unable to contact Cosme. Hernandez responded that Rivera
would not need a representative to attend, as the meeting would be very quick.23
Prior to the May 10 meeting, Lugo prepared an Employee Admonishment form
detailing Rivera’s discharge and basing it on violent or threatening behavior and
disrespectful behavior toward a coworker, “insulting him and inclusively threatening him in
the presence of two Supervisors, utilizing offensive and threatening language.” She added
that the Company “cannot tolerate this type of conduct and more so when it is not the first
time that you have this type of behavior.”24
Upon his arrival at her office, Lugo told Rivera to sit down. Soto, Santiago, and
Hernandez were also present. Even though the decision had already been made to
discharge Rivera, Lugo wanted Santiago there because she anticipated that Rivera would
deny the allegations. Lugo explained that she was investigating the incident involving
Santiago. She then asked Rivera what happened. Rivera professed a lack of recollection
as to what happened that day. Lugo told Rivera that Hernandez sent her an email stating
what had happened at the office, and that Soto and Hernandez heard him insult Santiago.
Rivera insisted that he did not recall the incident, at which point Santiago refreshed his
recollection about cursing his mother. Rivera responded angrily and called Santiago a
snitch. Santiago replied that he simply wanted an apology. Rivera apologized. At Lugo’s
direction, Santiago left. Lugo noted to Rivera that he engaged in the same aggressive
conduct in front of her. She explained that Rivera’s conduct was unacceptable and
violated the Company’s disciplinary regulations. Lugo also informed Rivera that she
reported the incident to Cosme and that he would be discharged. Rivera became angry,
pointed a finger at her, and accused her of having an attitude problem and an agenda to
discharge workers. Lugo told Rivera that it was his third infraction within the past year and
dismissal was warranted. She proceeded to read from an Employee Admonishment form
and asked Rivera to sign it. Rivera refused. Hernandez, Soto, and Lugo all proceeded to
sign the termination form and Rivera was provided with a copy.25
_________________________
Soto only testified that she informed Cosme that Rivera would be discharged as a result of his
latest conduct. As such, there is no indication that she informed Cosme that she planned to
meet with Rivera on May 10. (Tr. 103, 125–126, 143–144.)
23 I credited Rivera’s detailed version regarding this interaction over the terse denial
provided by Hernandez. (Tr. 58– 59, 104.) As emphasized during his cross-examination, Rivera
was a long-time official of the Union, was well aware of his rights, and had a long history of
asserting the rights of employees to have a union delegate present during certain meetings with
the Company. As such, his credibility on this issue was bolstered by his past practice in such
situations. (Tr. 55, 63–64.) See FRE Rule 406. Moreover, having found Hernandez less than
credible regarding Camacho’s representation request, I have little reason to credit his testimony
in this instance. See fn. 14, supra.
24 Rivera confirmed the testimony of Lugo and Hernandez that the Employee Admonishment
form was prepared prior to, and presented to him during, the meeting. (Tr. 61, 107–108, 144; Jt.
Exh. 5.)
25 Rivera testified that he responded to Lugo’s inquiry by explaining his version of the
argument with Santiago. (Tr. 59–61.) Lugo, Hernandez, and Soto, on the other hand, all testified
Continued
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III. Legal Analysis
The Supreme Court has long held that an employee has a right to have union
representation at an investigatory interview that the employee reasonably believes may
result in disciplinary action. NLRB v. Weingarten, Inc., 420 U.S. 251, 262 (1975). The test
for determining whether an employee reasonably believes that the interview might result in
disciplinary action is considered from an objective perspective under all the circumstances
of the case rather than by the employee’s subjective motivation. Weingarten, supra at 257;
Lennox Industries, 244 NLRB 607, 614–615 (1979), enfd. 637 F.2d 340, 344 (5th Cir. 1981),
cert. denied 452 U.S. 963 (1981); (United Telephone Co. of Florida, 251 NLRB 510, 513
(1980).
The General Counsel contends that Camacho and Rivera had a reasonable basis
to believe that they would be subjected to investigatory interviews, then requested union
representation and were denied.26 The Company contends that neither Camacho nor
Rivera requested union representation. Assuming, arguendo, that they did, the Company
further asserts that their Weingarten rights were not triggered because they were
subjected to meetings convened solely for the purpose of informing them of their
discharges. In addition, the Company contends that Camacho previously waived his
Weingarten rights in a last chance agreement signed in 2009.27
Weingarten provides the right to representation during an employer’s interview that
may reasonably lead to discipline. However, this right does not apply where the adverse
action has been decided and the employee is only being informed. LIR-USA Mfg. Co., 306
NLRB 298, 305 (1992). On the other hand, when an employer informs an employee of a
disciplinary action and then seeks facts or evidence in support of that action, or to attempt
to have the employee admits his alleged wrongdoing, or to sign a statement to that effect,
. . . the employee’s right to union representation would attach. Baton Rouge Water Works
Co., 246 NLRB 995, 997 (1979). See, also Electric Co., 355 NLRB No. 71 (2010), citing
Titanium Metals Corp., 340 NLRB 766 (2003).
A. Camacho Representation Requests
Camacho did not request representation on February 18. To the contrary, the
credible facts indicate that he attempted to contain the controversy to the shop office and
pleaded with Hernandez to sidestep protocol and not report it to Lugo. Camacho did,
however, request representation as he went with Hernandez to the February 19 meeting.
Hernandez, alluding to the last chance agreement, told Camacho that he waived his
Weingarten rights and denied the request. He also told Camacho that he would not need
_________________________
that Rivera insisted that he could not recall what transpired on May 7 before being prodded by
Santiago. Significantly, Rivera did not refute the testimony of the Company’s witnesses that he
did not request representation during the May 10 meeting. (Tr. 105–108, 126–130, 144–146; Jt.
Exh. 5.) Notwithstanding credibility problems that I had with Hernandez and Lugo, including the
fact that Lugo was able to listen to preceding testimony of Hernandez and Soto, I found the
versions given by the Company’s witnesses more credible. An important consideration in my
determination was Rivera’s testimony that he apologized to Santiago, but never conceded his
abusive behavior toward Santiago. (Tr. 60.)
26 GC Brief at 12–16.
27 R. Brief at 19–21.
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representation, as the meeting would be informative only and Camacho had waived his
Weingarten rights anyway.28 Notwithstanding that assurance, however, Lugo proceeded to
ask Osorio, Hernandez, and Camacho for each of their versions of the incident. She also
asked Camacho if he recalled signing the last chance agreement and why he misbehaved
in light of the agreement. Lugo concluded by reciting the contents of the last chance
agreement and informing Camacho that he was terminated.
Camacho had a reasonable basis to believe he would be subjected to an
investigatory interview when he requested representation prior to the February 19
meeting. Consolidated Edison, 323 NLRB 910 (1997); see also Quality Mfg. Co., 195
NLRB 197, 198 fn. 3 (1972). Camacho was being called into the human resources
director’s office for a meeting after disrespecting and disobeying Osorio’s directive.
Moreover, his supervisor told him that the meeting would consider the consequences of
this latest incident in relation to his previous disciplinary disposition. See e.g., Circuit
Wise, Inc., 308 NLRB 1091, 1109 (1992
The facts and circumstances also reveal that he reasonably believed he was in an
investigatory meeting when he requested representation in Lugo’s office. It is also evident
that Lugo and Hernandez decided to discharge Camacho prior to the meeting and that
Lugo had already prepared a termination letter. However, the 20-minute long meeting
involved more than just informing Camacho that he was discharged. I agree with the
General Counsel, citing El Paso Electric Co., supra, that, although the Company had already
made the decision to discharge Camacho, it “sought to obtain more information from Camacho
in order to substantiate or bolster its decision to fire him.”29 Accordingly, the Company, by
denying Camacho’s request for representation prior to and during an investigatory meeting,
violated his Weingarten rights.
B. Rivera’s Representation Requests
On May 7, Hernandez told Rivera that he would inform the human resources office
about the incident that occurred that day. Hernandez reported the incident to Lugo and they met
later that day with Soto and Santiago. Since Rivera was not present, Lugo cut Santiago’s
explanation short and excused him from the meeting. She then proceeded to discuss and
decide on Rivera’s termination with Hernandez and Soto. Realizing the significance of
discharging Local 6873’s president, Lugo called Cosme to inform him of Rivera’s discharge. She
also prepared Rivera’s discharge form.

28 The last chance letter was a clear and unmistakable waiver of Camacho’s Weingarten
rights. See Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983). The letter was received
in evidence (Jt. Exh. 1) and the Company referred to it in its position statement as a justification
for denying Camacho’s Weingarten rights. (GC Exh. 4.) The Company essentially relied on the
last chance letter as a waiver of Camacho’s Weingarten rights. It did not, however, plead a
waiver based on the last chance letter as an affirmative defense in its answer to the complaint.
(GC Exh.1.) Nor was such an affirmative defense mentioned in its post-hearing brief. Proof of a
waiver is an affirmative defense and must be pled. See Allied Signal Aerospace, 330 NLRB
1216, 1228 (2000), review denied, 253 F.3d 125 (2001). General Electric, 296 NLRB 844, 857
(1989), enfd. mem. 915 F.2d 738 (D.C. Cir. 1990). If not, it is waived. Harco Trucking, LLC,
344, 478, 479 (2005). Moreover in the absence of a motion, it is beyond my purview to amend
the answer. See GPS Terminal Services, 333 NLRB 968, 968–969 (2001).
29 GC Brief at 15.
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Shortly after arriving at work on May 10, Hernandez directed Rivera to report to Lugo’s
office. He also informed Rivera that the purpose of the meeting related to Rivera’s
argument with Santiago. Rivera requested union representation. Hernandez denied the
request and told Rivera that he would not need a representative to attend because the
meeting would be merely informative. From an objective standpoint, Rivera would not have
any reason to doubt Hernandez’s representation that the meeting would be merely
informative. On the other hand, Hernandez actually knew that Santiago would be present
at that meeting to provide his version of events. As such, Hernandez was keenly aware of
the likelihood that Rivera would be subjected to an investigative interview in Lugo’s office.
Consolidated Edison Co., supra.
After reporting to Lugo’s office, Rivera encountered Soto, Santiago, and
Hernandez. Although the decision had already been made to discharge Rivera, Lugo
wanted Santiago present because she anticipated that Rivera would deny the allegations.
Lugo explained that she was investigating Rivera’s argument with Santiago, and then
asked Rivera what happened. Rivera and Lugo proceeded to discuss the information she
received from Hernandez and Soto. Santiago interjected his version of the incident and an
ensuing argument culminated with Rivera apologizing to Santiago. After Lugo noted that
Rivera’s latest display essentially corroborated the allegations, she informed Rivera that
he was being discharged because it was his third infraction within the past year. After a
nearly 1-hour long meeting,30 Lugo proceeded to read from the discharge form, but Rivera
refused her request to sign it. Hernandez, Soto, and Lugo all proceeded to sign the
termination form and Rivera was provided with a copy. As in Camacho’s case, it is evident
that, although the decision to terminate Rivera had been made prior to the meeting, Lugo
did more than just notify Rivera of that fact at the meeting. She used the meeting to obtain
more evidence from Rivera in order to substantiate the Company’s decision. Baton Rouge
Water Works Co., supra. Therefore, Respondent’s refusal to provide Rivera with union
representation violated Section 8(a)(1) of the Act.
C. Supervisors’ Threats
The General Counsel also contends that the two aforementioned Weingarten violations
were accompanied by unlawful supervisory threats. The first occurred on February 19 when
Negron warned Rivera that he would be discharged if he accompanied Camacho to the meeting
in Lugo’s office. The allegation of that threat, however, was not inserted in the initial complaint;
nor was it included in the General Counsel’s trial amendment, which alluded to Hernandez’s
threats.
The General Counsel, citing Redd-I, Inc., 290 NLRB 1115 (1988), seeks to further
amend paragraph 7 of the complaint to allege a separate 8(a)(1) violation based on Negron’s
threat. Rivera did testify about Negron’s threat. However, the General Counsel never moved to
amend the pleadings at trial and Negron was not called as a witness. The first mention that
Negron’s conduct constituted a violation surfaced in the General Counsel’s brief and is not
addressed by the Company in its brief. Contrary to the General Counsel’s contention, the
principles of Redd-I, Inc., would not be served here and its belated motion to amend the
complaint to allege the additional threat is denied.
The complaint was, however, timely amended to include Hernandez’s threat. As
previously discussed, Camacho attempted to exercise his Weingarten rights, but was rebuffed.

30 Rivera’s estimate of the meeting was not disputed. (Tr. 59.)
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Under the circumstances, Hernandez violated Section 8(a)(1) of the Act when he informed
Camacho that any employee seeking to represent him would be discharged. See Consolidated
Edison Co. of New York, Inc., supra; Southwestern Bell Telephone Co., 227 NLRB 1223 (1977);
Good Hope Refineries, 245 NLRB 380, 384 (1979), enfd. 620 F.2d 57, 59 (5th Cir. 1980).
D. Rule 46
The General Counsel contends that Company Rule 46 unlawfully restrains protected
concerted activity because it is ambiguous and overly broad in several respects: it prohibits all
unauthorized meetings and/or union related activities during “working hours,” which would even
includes lunch and break periods; it could be interpreted as banning such activity in working and
nonworking areas; it requires prior permission from management in order to engage in union
activity; and there is no evidence that the Company similarly prohibits other nonwork-related
matters. The Company concedes that the literal translation for “horas laborales” is “working
hours,” but contends that such an extremely narrow interpretation misconstrues the real
meaning of the term. Instead, the Company contends that, based on common usage and local
laws, “horas laborales” really means “work time.” The Company also maintains that Rule 46
must be read in conjunction with CBA Article XIV, which provides for compensated union
meetings or activities.
An employer may lawfully impose some restrictions on employees' statutory rights to
engage in union solicitation and distribution. Such restrictions, however, must be clearly limited
in scope so as not to interfere with employees' rights to solicit coworkers on their own time or to
distribute literature on their own time in non-work areas. Republic Aviation Corp. v. NLRB, 324
U.S. 793 (1945): Our Way, Inc. 268 NLRB 394 (1983). Therefore, an employer's maintenance of
a work rule that could be reasonably construed to restrict the exercise of Section 7 rights would
be deemed in violation of Section 8(a)(1). Lutheran Heritage Village-Livonia, 343 NLRB 646,
646-647 (2004).
The Board has long viewed rules prohibiting union solicitation or activities during
“working hours” as overly broad and presumptively invalid because they could reasonably be
construed as prohibiting solicitation at any time, including an employee's break times or other
nonwork periods. Our Way, Inc., 268 NLRB 394 (1983); Krystal Enterprises Inc., 345 NLRB No.
15, slip op. at 37 (2005); A.P. Painting & Improvements, Inc., 339 NLRB 1206, 1207 (2003);
K.B. Specialty Foods Co., 339 NLRB 740, 742 (2003); Becker Group, Inc., 329 NLRB 103, 109
(1999); Carry Companies Of Illinois, Inc., 311 NLRB 1058, 1070 (1993). An employer may
nevertheless overcome such a presumption by showing that the rule was communicated to
employees in such a way as to convey clearly an intention to permit solicitation during times
when and places where employees are not actually working. Our Way, supra.
The Company relies on Article XIV of the CBA, which specifies the rights of union
members to meet one hour each per month to attend union meetings.31 While Article XIV

31 I sustained an objection on the basis of relevance to the Company’s attempt to
submit testimony as to “how does the company actually police that the union meetings are
held as agreed upon.” (Tr. 148-149.) The Company indicated that it relied on the CBA as
its evidence that the Rule 46 did not preclude protected concerted activity by employees
during when they were not actually working. (Tr. 8-10.) However, there is no contention by
the General Counsel or the Union that the CBA was honored by the Company. As such,
the sole determination as to the legality of Rule 46 must be considered in context with
Article XIV of the CBA.
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affords employees the opportunity to attend union meetings for one hour per month, it
hardly covers every potential situation in which an employee may seek to engage in
protected concerted conduct during his nonworking hours and in nonworking areas.
Applying that standard here, I find the Company’s no-solicitation rule unlawful because
employees would reasonably construe its prohibition of “meetings and/or activities related to the
Union during working hours and without prior notification to management” to fall during working
hours, which includes breaks or other nonwork periods. See Moeller Aerospace Technology,
Inc., 347 NLRB No. 76, slip op at 8-9 (2006). In addition, the Company’s no-solicitation rule is
also unlawful because employees reasonably would construe its prohibition in all areas, which
includes non-working areas. See Satellite Services, Inc., 356 NLRB No. 17, slip op at 11 (2010).
Under the circumstances, the Company’s promulgation and maintenance of Rule 46
violated Section 8(a)(1) of the Act.
Conclusions of Law
1. The Company is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. By engaging in the following conduct the Company committed unfair labor practices
contrary to the provisions of Section 8(a)(1) of the Act.
(a) refusing to honor the requests of Carlos Camacho and Hector Rivera for Weingarten
representation at investigatory meetings;
(b) threatening to discharge employees that serve as Weingarten representatives; and
(c) maintaining an overly broad and ambiguous no-solicitation rule.
4. The above-described labor practices affect commerce with the contemplation of
Section 2(6) and (7) of the Act.
REMEDY
Having found that the Company has engaged in certain unfair labor practices, I find that
it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Having found that the Company maintained an overly broad rule prohibiting employees
from “[holding] meetings and/or activities related to the Union during working hours and without
prior notification to management,” we shall order the Company to rescind the rule and notify its
employees in writing that the rule is no longer in force.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended32

32 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
Continued
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ORDER
The Company, Alonso & Carus Iron Works, Inc., of Catano, Puerto Rico, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) denying employees’ requests to be represented by a shop steward or union official at
interviews when they reasonably believe that the interview might result in disciplinary action
against them.
(b) threatening with discharge any shop steward or union officials that accompany
employees during interviews or meetings where such employees have a reasonable belief that
the interview might result in disciplinary action against them.
(c) maintaining in its employee handbook and enforcing the following rule regarding
solicitation: Rule 46: “[holding] meetings and/or activities related to the Union during working
hours and without prior notification to management.”
(d) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Rescind in its employee handbook Rule 46, which prohibits employees from
“[holding] meetings and/or activities related to the Union during working hours and without prior
notification to management,” and notify employees that this action has been taken and that they
do not have to request permission to engage in solicitation on employees’ own time in a
nonwork area.
(b) Within 14 days after service by the Region, post at its Catano, Puerto Rico facility
copies of the attached notice marked “Appendix.”16 Copies of the notice, on forms provided by
the Regional Director for Region 24, after being signed by the Company’s authorized
representative, shall be posted by the Company and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted. In
addition to physical posting of paper notices, notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or other electronic means, if the
Company customarily communicates with its employees by such means. Reasonable steps
shall be taken by the Company to ensure that the notices are not altered, defaced, or covered
by any other material. In the event that, during the pendency of these proceedings, the
Company has gone out of business or closed the facility involved in these proceedings, the
Company shall duplicate and mail, at its own expense, a copy of the notice to all current
employees and former employees employed by the Company at any time since February 18,
2010.
_________________________
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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(c) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Company has taken to comply.
Dated, Washington, D.C. March 10, 2011
______________________________
Michael A. Rosas
Administrative Law Judge
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San Juan, PR
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT deny your requests to be represented by a shop steward or union official at an
interview when you reasonably believe that the interview might result in disciplinary action
against you.
WE WILL NOT threaten with discharge any shop steward or union official that accompanies an
employee during an interview or meeting where that employee has reasonable belief that the
interview might result in disciplinary action against him/her.
WE WILL NOT maintain a rule prohibiting any of you from engaging in union or other protected
solicitation/distribution during nonwork time and in nonwork areas.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the
exercise of rights guaranteed them by Section 7 of the Act.
WE WILL rescind any rule prohibiting any of you from engaging in union or other protected
solicitation/distribution during nonwork time and in nonwork areas, and we will inform you in
writing that this has been done.
WE WILL permit you to be represented by a union official or shop steward at an interview or
meeting which you reasonably believe might result in disciplinary action taken against you.
ALONSO & CARUS IRON WORKS, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
JD–
San Juan, PR
525 F. D. Roosevelt Avenue, La Torre de Plaza, Suite 1002
San Juan, Puerto Rico 00918-1002
Hours: 8:30 a.m. to 5 p.m.
787-766-5347
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 787-766-5377.