Comite de Empleados de Simmons, Inc.

National Labor Relations Board - Board Decisions

Jun 17, 1960

127 N.L.R.B. 1179 (N.L.R.B. 1960)

COMITE DE EMPLEADOS DE SIMMONS, INC . 1179
Comite de Empleados de Simmons , Inc. (also known as Comite
de Negociaciones de los Empleados de la Simmons , Inc.) and
its officers and/or agents Miguel Pacheco Cintron , Angel Luis
Gambaro, Juan A. Garcia, Jose C. Burgos , and Filiberto Aviles
Padilla; and/or Teamsters , Chauffeurs , Warehousemen and
Helpers, Local 901, IBTCW & H of America and Simmons,
Inc.
Comite de Empleados de Simmons , Inc. (also known as Comite
de Negociaciones de los Empleados de la Simmons, Inc.) and
its officers and/or agents Miguel Pacheco Cintron , Angel Luis
Gambaro, Juan A. Garcia, Jose C. Burgos, and Filiberto Aviles
Padilla; and/or Teamsters, Chauffeurs , Warehousemen and
Helpers, Local 901, IBTCW & H of America and Seafarers
International Union of North America, Atlantic & Gulf Dis-
trict , P.R. Division, AFL-CIO. Cases Nos. 21-CC-60 and
24-CC-61. June 17, 1960
DECISION AND ORDER
On October 27, 1959, Trial Examiner Sydney S. Asher, Jr., issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents Comite de Empleados de Simmons, Inc., Miguel
Pacheco Cintron, Angel Luis Gambaro, Juan A. Garcia, and Jose C.
Burgos had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Interme-
diate Report attached hereto. The Trial Examiner also found that
the Respondents Teamsters and Filiberto Aviles Padilla had not en-
gaged in the unfair labor practices alleged in the complaint, and
recommended that those allegations of the complaint be dismissed.
Thereafter, the General Counsel, the Charging Company, and the
Comite and five individual Respondents filed exceptions and support-
ing briefs.'
The Board has reviewed the rulings of the Trial Examiner made 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
cases, and, finding merit in the Respondents' exceptions, hereby adopts
the findings, conclusions, and recommendations of the Trial Examiner
only to the extent that they are consistent with the findings, conclu-
sions, and order hereinafter set forth.
'The Teamsters notified the Board by telegram dated December 14, 1959, that it did
not desire to file a brief, but urged affirmance of the Trial Examiner 's recommended dis-
missal of the charges against the Teamsters.
127 NLRB No. 146.
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner found that, of the five employees of the
Charging Company who had been elected members of the bargaining
committee of the certified SIU, four sent the Company a telegram on
March 23, 1959, which constituted a demand for recognition of their
committee as the sole bargaining representative, exclusive of the
SIU, thereby establishing these members as a labor organization,
herein called the Comite, within the meaning of Section 2(5) of the
Act. He also found that the demand for exclusive recognition was
abrogated by another telegram sent on March 24, 1959, as a result of
which the Comite reverted to its status as the negotiating committee
of the SIU. However, the Trial Examiner found that, in the mean-
time, the four individuals, functioning as a labor organization or as
its agents, on March 23 engaged in, or induced or encouraged, a strike
of company employees in violation of Section 8(b) (4) (C) of the Act.
For the reasons set forth below, we find that the SIU committee
members did not seek exclusive representative status, did not become
a separate labor organization, and, therefore, could not engage in, or
induce or encourage, a strike in violation of Section 8(b) (4) (C) of the
Act.2
The employees of the Company had been represented for years by
the Union de Trabaj adores de la Industria de Mattresses, Muebles y
Ramas Anexas, which was affiliated with Federation Libre de
Trabaj adores de Puerto Rico. The Union withdrew from the
Federation in 1958, but its contract with the Company continued in
effect until its expiration date in February 1959, and the same em-
ployees continued to hold office, including Pacheco, president, and
Gainbaro, secretary. Early in 1958, some employees asked Grant,
executive secretary of SIU, to represent them, but he told them they
had to wait until the contract expired. Late in 1958, SIU organized
the employees with Gambaro's assistance. At a meeting on December
10, 1958, at the SIU office, which had been called by a leaflet signed
by Pacheco and Gambaro as well as by Bosch, an attorney who was at
that time president of the SIU Puerto Rico Division, the membership
elected Pacheco and Gambaro as delegates, and elected a committee
consisting of the two delegates, plus employees Burgos, Garcia, and
Padilla, to prepare demands and to negotiate with the Company.
Notices of SIU membership meetings thereafter were signed by Grant
as executive secretary and by Pacheco and Gambaro as delegates.
On December 15, 1958, Bosch, Pacheco, and Gambaro discussed
recognition of SIU with Gentile, general manager of the Company,
2 This section, at the time here relevant , made it an unfair labor practice "for a labor
organization or its agents . . . to engage in, or to induce or encourage the employees of
any employer to engage in, a strike . . . where an object thereof is . . . forcing or re-
quiring any employer to recognize or bargain with a particular labor organization as the
representative of his employees if another labor organization has been certified as the
representative of such employees under the provisions of section 9 "
COMITE DE EMPLEADOS DE SIMMONS , INC. 1181
and with the company attorney . At Gentile 's request , further discus-
sion was postponed until he returned , on January 15, from a trip to the
mainland . The January 15 conference was attended by Pacheco,
Gambaro, and Grant; Bosch did not attend as he had resigned as
president . When the Company refused to recognize SIU without an
election , the same conferees worked out the details for an election. In
this connection , Gentile testified that Pacheco and Gambaro "were all
along representing the Seafarers ." Pursuant to petitions filed by the
SIU for a production and maintenance unit, and by the Teamsters for
a drivers and warehouse unit , elections were held, and each petitioner
was certified on March 5 , 1959, for the unit it sought . Meanwhile,
the SIU bargaining committee had prepared , at the SIU office, pro-
posed contract terms , in Spanish , based on the former Mattress
Workers agreement . After approval by the SIU membership, Grant
sent these proposals to Gentile on March 5.
Contract negotiations between the Company and SIU began on
March 16. Gentile testified that the SIU was represented by Terpe, a
national director of SIU and president pro tempore of the Puerto
Rico Division , and by Grant. There is no other testimony that Grant
was present . Grant testified that he had no notice of any negotiations
prior to his resignation from SIU on March 21, 1959. The Trial
Examiner found that Grant was at the meeting on March 16 as well
as at several subsequent meetings , but the record establishes clearly
that Grant did not attend the later negotiations . Moreover, we are
convinced , from Grant 's conduct discussed below and from the entire
record, that Grant was not at the meeting on March 16 and we so
find. Terpe was generally accompanied at the bargaining meetings by
Colls, whom Terpe described as "our local agent ." As Terpe's position
with SIU involved him in negotiations with many companies, and as
he spent part of his time on the mainland and part in Puerto Rico,
he was not completely familiar with the local situation at each plant
where he negotiated . Terpe had returned from the mainland shortly
before the March 16 meeting , and brought with him a contract
recently executed with a company on the mainland . At his suggestion,
this contract , in English, was used as the basis of negotiations, and
there was no mention , at the March 16 meeting , of the proposals in
Spanish which the committee had prepared, the SIU membership
had approved , and Grant had transmitted to the Company.
Meetings were also held on March 17, 18 , and 19, which were
attended by Gentile and by Raffone, Gentile 's superior , for the Com-
pany, and by Terpe and Colls for the SIU. Bargaining on the basis
of the contract in English which had been submitted by Terpe, the
negotiators reached tentative agreement on several contract provisions.
On March 20 , about 11 a.m., Grant went to the company office, had
Gambaro called away from his work , and notified him that SIU and
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Simmons had started negotiations. Gambaro said he could not believe
it because a note had been sent to Terpe informing him that the
committee wished to be present at negotiations. Grant insisted that
negotiations had started and told Gambaro to come to the SIU office
later for further information. Gambaro told Pacheco what Grant
had said, and both Gambaro and Pacheco went to the SIU office that
afternoon. According to Gambaro, "the SIU members and the or-
ganizers there were surprised by our arrival, then Mr. Grant came
outside and told me: `Right now were going to send for you."' Terpe
arrived later, and Gambaro and Pacheco were introduced to him by
Coils. When they learned that tentative agreement had been reached
on some provisions, that these provisions were written in English,
that there had been no reference to their proposals submitted in
Spanish, that the negotiators were discussing a possible 5-year contract
term, and that Colls insisted on the contract being signed that after-
noon, they summoned the other committee members to the meeting,
except Padilla, whom they were unable to reach. The committee
members at the meeting continued to protest that they wanted time to
study the proposals, that they were not prepared to sign a contract,
and, particularly, that the contract in Spanish which they had sub-
mitted, and which had been approved by the SIU membership, was
not even available in the conference room. The committee was under
a handicap in considering the proposals in English. Gambaro, who
testified through an interpreter, stated that he did not know English,
and that Garcia, who did, translated some provisions for the others
but needed a dictionary in the process. The committee members
conversed among themselves in Spanish, and those who had repre-
sented the predecessor union had negotiated and executed contracts
in Spanish.
There was agreement finally that the committee members be
included in the negotiations and the committee members proceeded
to discuss some of the contract proposals with the SIU officials and
with Gentile and Raffone representing the Company. As the com-
mittee was in frequent dispute with the SIU officials, the session
was a protracted one. Gentile testified that both the Company and the
SIU "executives" expressed their willingness several times during the
afternoon and evening "to spend the entire night if necessary to
negotiate a contract." Gambaro testified that Terpe, who had to
leave about 9 p.m., had been insistent that the contract be signed that
evening and left with the admonition, "if you do not sign that con-
tract tonight you will not have a union or a contract." On rebuttal,
Terpe denied this. Gambaro also testified that Raffone said that if
the committee refused to sign the contract that night, "we would not
have a contract, nor work, nor union, and that from Monday on [this
was on Friday] anyone who even look to the side that would be enough
COMITE DE EMPLEADOS DE SIMMONS , INC. 1183
reason for discharging him...." Raffone did not testify . The Trial
Examiner stated in the Intermediate Report that Gentile and Terpe
contradicted this testimony about Raffone , but that he deemed it
unnecessary to resolve this conflict . Gentile , however, testified on
rebuttal , that he was in and out of the room and did not hear such
a remark by Raffone while he was there , and Terpe denied only that
he, Terpe, made such a remark.
In any event , the evidence shows that the committee members came
away from that meeting on March 20 convinced that an agreement
had been negotiated without their participation or knowledge, and
that this agreement had been , or was about to be, executed without
their approval. On the following day, Saturday, March 21, the day
Grant resigned from the SIU , the committee released a statement, in
Spanish, to the press , asserting that Terpe had negotiated an agree-
ment without their knowledge and contrary to their demands, that it
contained objectionable provisions , which were set forth , that a 5-year
contract term was possible , and that Terpe and Raffone had made the
threatening remarks referred to above. The statement was signed by
the four members as "Delegates and Employees of Simmons, Inc."
According to Gambaro, a copy was sent to Terpe so Terpe "should
hear us or listen to us."
On Monday morning, March 23, a half-holiday, with the plant
operating only in the morning, the committee members who were
at the Friday conference reported what had transpired at that con-
ference to the company employees as they arrived at the plant. All
those in the SIU unit, except the maintenance employees , went on
strike, and those in the Teamsters unit refused to cross the picket line.
Later that morning, Gambaro testified, he and Garcia went to see
Bosch because he had brought them into the SIU, and they wanted
to complain about the SIU and also to advise the Company that the
strike was to last only that day. Bosch testified that Gambaro and
Garcia "were complaining about the conduct of the SIU in the nego-
tiations; they wanted to be present in the negotiations and they wanted
also to intervene in the approval or tentative approval of any contract
that would be submitted later on to the members, they claimed they
were representative of the employees and would have to explain to
the member employees what was going on and what was really ac-
corded by the parties." Bosch helped them draft a telegram in
Spanish to the Company . It contained only Gambaro 's name, mis-
spelled "Ganbaro," as the sender, and it was, as Terpe, who saw it
later, testified, written in longhand "on a piece of yellow paper,
crosswise ." Gambaro testified that ". . . when we came back with
the telegram we handed it to the personnel there . . . I did not want
anybody to send that telegram . . . I brought it to the boys and one
of them sent it later." It was sent by an employee who was not a mem-
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her of the committee. The telegram, in evidence both in the original
Spanish and the English translation, was worded as follows :
WE ARE ON STRIKE DURING THIS DAY IN ORDER TO
REJECT AGREEMENT NEGOTIATED BY S.I.U. REPRE-
SENTATIVE. WE DEMAND OUR COMMITTEE BE
RECOGNIZED TO NEGOTIATE CONTRACT.
Before the telegram was delivered, company officials called four
committee members (Padilla was not present) to the office and asked
if they were on strike. They said that they were, and that they had
sent the Company a telegram explaining the strike. The Company
did not ask the committee members to end the strike but, after they
left the office, Gentile called Terpe and urged him to do so. Terpe
came to the plant, addressed the strikers, and, on the basis of his
statement that nothing had yet been signed, all agreed to end the
strike.
On the following day, March 24, work having resumed, Gentile
called all five committee members from their work to the office and
discharged them on the ground that they had incited an illegal strike.
The committee thereupon went to the Sib* office. When told about the
discharges, Terpe and other SIU officials recommended filing charges.
The committee also showed them the draft of the telegram sent the
day before, and explained going to Bosch rather than to SIU counsel
because Bosch had brought them into the SIU. Another telegram
was prepared and sent to the Company that afternoon reading as
follows :
UPON ACTION TAKEN BY US WORKERS RESUMED
WORK TODAY. WE ABROGATE AND WITHDRAW
PREVIOUS TELEGRAM UPON CLARIFICATION OF
NEGOTIATION SITUATION. BARGAINING COM-
MITTEE READY TO RESUME NEGOTIATIONS ON BE-
HALF S.I.U. WITH ATTENDANCE AND ASSISTANCE
OF S.I.U. LEADERS TO WHICH WE ARE AFFILIATED.
This was signed "FOR THE BARGAINING COMMITTEE" with
the names of all the members, except Padilla, who was away from the
plant when most of these events occurred.
On the following morning, March 25, the employees went on strike,
again in protest against the discharges. The committee members were
at the SIU office when Gentile called Terpe about the strike and,
according to Terpe, these members "acted extremely surprised" at
the news. Terpe and the SIU attorney advised the committee that
morning to file a charge, and sent an SIU representative with them.
At the Board office, however, after the charge was prepared, this
representative stated that he was not authorized to sign a charge but
that the delegates could do so. Pacheco signed the charge as "Presi-
COMITE DE EMPLEADOS DE SIMMONS, INC. 1185
dent" of "Comite de Negociaciones de los Empleados de la Simmons,
Inc." Afterwards, they returned to the SIU office for the rest of the
day. On March 31, Terpe sent another SIU representative to the
Board with Gambaro. Gambaro withdrew the charge filed by Pacheco,,
signing the withdrawal form as "Secretary" of the Comite.3 The SIU
representative then filed a charge for the SIU alleging that the five
discharges were discriminatory.
Bargaining negotiations were resumed on March 30. The SIU was.
represented by Terpe, Colls, an SIU organizer, and the five committee
members. The SIU first demanded that the Company reinstate the
five dischargees, but it was agreed to defer discussion of this matter-
until a contract had been negotiated. Further negotiation meetings
were held on March 31 and April 1, 2, 3, 6, and 7. Committee mem-
bers were present and in frequent disagreement with other SIU
representatives regarding the contract proposals. On April 7, they-
sent Terpe the following letter :
Enclosed we are returning postal money order for $50 that you,
sent us as assistance for being members of the negotiating com-
mittee at Simmons. You informed us that this assistance was
for the five of us and that you could not assist the strikers because
the strike was one of the workers and not of the SIU. We have
to state that if there is no assistance for all our fellow workers
there must not be any for the five of us. We are starving and
we are all needy. That is why we cannot accept the $10 assistance
given to US .4
The committee attended no bargaining sessions after April 7. A
3-year contract was signed by the Company and SIU on April 10.
On April 28, an injunction issued, picketing ceased, and the Company
reinstated all employees except the committee members.
3 Gambaro maintained in his testimony that , although Pacheco signed a charge as presi-
dent and he signed the withdrawal as secretary of the Comite , "at no time have we acted
as such "
4 During the strike , the strikers , at a meeting , voted to pay $ 7 a week in strike benefits
out df the Mattress Workers' treasury , which had been retained under the control of the-
former treasurer , who was not a committee member Gambaro testified that, although
there were 45 in the SIU unit, the benefits were paid to about 38 who were represented
by SIU, and that the approximately $ 1,000 in this fund was depleted , at the time of the
hearing, to about $5.
Gambaro 's testimony regarding the Mattress Workers ' treasury illustrates the compli-
cations caused in this case by the language difference . He testified that "We still had it
because we were waiting until we joined the SIU and then distribute it among the
members ." As the General Counsel maintained that the employees here involved never
became members of the SIU, while the Respondents contended that the SIU granted them
special membership whereby they did not have to pay dues until a contract was negotiated,
Gambaro ' s testimony appeared to be a concession that they had not yet become members-
when the funds were distributed to the strikers . In the transcript , however, following-
this testimony , is a comment by company counsel that "He said in Spanish 'hasta que-
entremos de lleno' which in English would be 'until we joined fully ' " This correction,
giving Gambaro ' s answer quite a different connotation , was accepted by counsel and made-
part of his answer on the record
,560940-61-vol. 127-76
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner concluded that the telegram sent on March 23
was a demand for "separate recognition as the employees' exclusive
bargaining agent," and that the telegram sent on March 24 confirmed
his interpretation of the first telegram as an attempt by the com-
mittee to displace the certified SIU. We do not agree. The first
telegram does not explicitly demand recognition of the committee as
the sole bargaining representative. Rather, its wording is equivocal,
and may be given a lawful or an unlawful connotation. When, how-
ever, we consider its wording in the light of the other evidence in the
record, we are convinced that it did not demand separate recognition.
There is, as set forth above, the testimony of Gambaro and Bosch
that the first telegram was sent to the Company to explain that the
employees went on strike to reject an agreement they thought had
been consummated, that the strike was of 1-day duration, and that the
committee demanded inclusion in the negotiations-a reasonable de-
mand, coming as it did from the SIU negotiating committee, duly
elected for that purpose, but nevertheless excluded from the first
series of bargaining meetings. The wording of the first telegram is
consistent with this testimony, as is also the wording of the second
telegram, in which the committee members withdrew the demand for
rejection of an agreement they previously thought had been con-
summated, and offered to participate in the negotiations they now
learned were still in progress.
That the telegrams had reference to committee participation in the
negotiations, rather than to replacing the certified representative, is
further indicated by the fact that the committee members did not
demand exclusive recognition at the March 20 bargaining session, in
the written criticism of Terpe released on March 21, in the conversa-
tion with Bosch on March 23 when the telegram was drafted, or in
the conversation with the Company on March 23 in which there was
reference to the first telegram then on its way to the Company. We
note also that the charges filed by Pacheco and later withdrawn by
Gambaro alleged unlawful discharges, not an unlawful refusal to
bargain with the Comite.
In determining the real meaning of these telegrams, we also consider
significant the relationship of the committee and the SIU throughout
the period in question. All the employees, including the committee
members, agreed to end the March 23 strike when Terpe assured them
that no agreement had yet been signed. After the committee mem-
bers were discharged, their first recourse was to the SIU, which
promptly demanded their reinstatement by the Company, and de-
ferred the matter only for the pendency of the contract negotiations.
Moreover, Terpe and SIU counsel, even after being shown the draft
of the March 23 telegram, which allegedly demanded separate recog-
COMITE DE EMPLEADOS DE SIMMONS, INC. 1187
nition, advised the committee members to file charges, sent an SIU
representative to the Board office to assist them in doing so, and later
filed SIU charges alleging that the committee members had been
unlawfully discharged. Thereafter, the committee members partici-
pated with the SIU officials in negotiations with the Company at
several meetings. In addition, all five were given funds by the SIU
to cover their expenses as part of the SIU negotiating team.
For the foregoing reasons, and on the record as a whole, we are
convinced, and find, that the March 23 telegram was an inartfully
worded demand for inclusion of the committee in the contract ne-
gotiations, and not an attempt by the committee to supersede the
certified SIU and become the exclusive bargaining representative.
On the basis of his finding that the telegram was a demand for
-exclusive recognition of the committee, the Trial Examiner found
further that four of the committee members, who told the Company
that the telegram stating the reasons for the strike was on its way,
"adopted" the telegram, and that they thereby constituted themselves
a separate labor organization. In so finding, the Trial Examiner
relied on the legislative history of the Wagner Act, in which the cur-
rent broad definition of a labor organization was enacted. This his-
tory shows that the definition was a broad one in order to extend the
protection and limitations of Sections 7 and 8 to inchoate or informal
groups as well as to established or traditional unions. The present
case, however, involves a duly elected bargaining committee of an
established union seeking to carry out the functions for which it was
elected. Although such a committee might, under some circumstances,
become a separate labor organization, we are satisfied that the com-
mittee herein did not at any time become a labor organization but
rather was at all times material "an internal and integral functioning
part" of the SIU 5 Moreover, we find, as did the Trial Examiner,
that the committee did not engage in any other conduct which estab-
lished it as a separate labor organization.
As the consolidated complaint alleges a violation of Section
8(b) (4) (C) only, and this section is applicable only to a labor or-
ganization or its agents, we find it unnecessary to pass upon the Trial
Examiner's findings that, by certain conduct, some of the committee
members engaged in, or induced or encouraged employees to engage
in, a strike in violation of Section 8(b) (4) (C) of the Act, or his
further findings concerning whether an incident involving the Comite
-violated Section 8 (b) (1) (A).
8 See General Shoe Corporation, etc, 120 NLRB 911. In The Grand Union Company,
123 NLRB 1665 , on which the Trial Examiner relied , the Board found that a single in-
dividual who had been certified as collective- bargaining representative was a labor organi-
zation required to comply with the filing provisions of Section 9 of the Act , then in effect.
The Board did not, however , find that the elected negotiating committee which participated
: in the contract negotiations was a labor organization.
1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, we find that the allegations of the complaint that the
Respondents, or any of them, engaged in conduct violative of Section
8(b) (4) (C) of the Act have not been sustained. We shall, there-
fore, dismiss the complaint.
[The Board dismissed the consolidated complaint.]
CONSOLIDATED INTERMEDIATE REPORT
STATEMENT OF THE CASE
These cases involve allegations that Comite de Empleados de Simmons, Inc.
(also known as Comite de Negociaciones de los Empleados de la Simmons, Inc.),
herein called the Comite, and its officers and/or agents Miguel Pacheco Cintron,
herein called Pacheco; Angel Luis Gambaro, herein called Gambaro; Juan A. Garcia,
herein called Garcia; Jose C. Burgos, herein called Burgos; and Filiberto Aviles
Padilla, herein called Aviles Padilla; and/or Teamsters, Chauffeurs, Warehousemen
and Helpers, Local 901, IBTCW & H of America, herein called the Teamsters, have
since on or about March 20, 1959, engaged in, and induced and encouraged em-
ployees of Simmons, Inc., herein called the Company, and employees of other
employers (not named in the complaint) to engage in, a strike or concerted refusal
in the course of their employment to handle, work with, and transport any materials,
goods, articles, or commodities, or to perform any other services for the Company,
an object thereof being to force and require the Company to recognize and bargain
with the Comite and/or the Teamsters concerning the grievances, wages, hours, terms,
and conditions of employment of employees of the Company, notwithstanding that
Seafarers International Union of North America, Atlantic & Gulf District, P.R.
Division, AFL-CIO, herein called the SIU, had been certified as the exclusive
collective-bargaining agent of said employees. It is alleged that this conduct violated
Section 8(b) (4) (C) of the National Labor Relations Act, as amended (61 Stat.
136), herein called the Act. The charge and an amended charge in Case No.
24-CC-60 were filed by the Company; the charge in Case No. 24-CC-61 was filed
by the SIU. After consolidating the two cases, the General Counsel' issued a
consolidated amended complaint. The Comite, Pacheco, Gambaro, Garcia, Burgos,
and Aviles Padilla filed a joint answer. The Teamsters filed a separate answer.
Thereafter a consolidated hearing was held before me from June 1 through 8, 1959,
at Santurce, Puerto Rico. All parties were given an opportunity to participate fully
in the hearing.2 On June 8, 1959, the hearing was continued in order to permit the
Teamsters to take the deposition of a witness. On June 12, 1959, the Teamsters
advised me that, because of the physical condition of the witness whose deposition
it sought, "we shall have to forego the opportunity to take the deposition." Accord-
ingly, on that date I ordered the record closed. Thereafter, the General Counsel
filed a brief; the Comite, Pacheco, Gambaro, Garcia, Burgos, and Aviles Padilla
filed a joint brief; and the Teamsters filed a letter stating that it was "substantially
in accord with the position taken" in the joint brief of the other Respondents. All
briefs have been duly considered.
Upon the entire record in these cases,3 and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
There is no dispute, and it is found, that the Company is, and at all material
times has been, an employer engaged in commerce within the meaning of the Act,
1 The designation General Counsel Includes the General Counsel of the National Labor
Relations Board and his representatives at the hearing.
2 During the hearing, the Comite and the individual Respondents moved that official
notice be taken of the Board's records in Cases Nos. 24-CA-1167 and 24-CA-1168, in
which charges against the Company were filed during the hearing. The motion was
opposed by the General Counsel and the Company. Ruling on the motion was reserved.
It is now denied, on the ground that the matters of which official notice Is sought are
immaterial to any of the issues herein.
8 During the hearing, without objection, all parties then present viewed some motion
picture films . As these were not offered In evidence and do not constitute part of the
record, no findings are based thereon.
COMITE DE EMPLEADOS DE SIMMONS, INC. 1189
and its operations meet the Board's jurisdictional standards; 4 and that the Teamsters
and SIU are, and at all material times have been, labor organizations within the
meaning of the Act.
A. Sequence of events
1. Events prior to March 23
On February 1, 1957, the Company executed a 2-year collective-bargaining
agreement with Union de Trabajadores de la Industria de Mattresses, Muebles y
Ramas Anexas, herein called the Mattress Workers, which at that time was
affiliated with Federacion Libre de Trabajadores de Puerto Rico, herein called the
FLT.5 This contract covered the Company's production workers, drivers, and
warehouse employees, but excluded the maintenance employees. Early in 1958
some employees of the Company approached Pedro A. Grant, then executive sec-
retary of the SIU, and requested that the SIU represent them. Grant pointed out
that they were covered by a collective-bargaining agreement between the Company
and the Mattress Workers, and explained that the SIU could not represent them
until this contract expired. Sometime during 1958 the Mattress Workers disaffili-
ated from the FLT and continued in existence as an independent union. In Novem-
ber 1958 the SIU commenced to organize the Company's employees. Gambaro
participated in this campaign. About December 1, 1958, the Mattress Workers
notified the Company of its "intention of amending the existing collective bargaining
contract with the idea of negotiating a new one." This letter was signed by
Pacheco as president and Gambaro as secretary.
On December 2, 1958, Victor M. Bosch, an attorney who was then president of
the SIU, telephoned to Albert P. Gentile, vice president and general manager of
the Company, and requested recognition of the SIU as the bargaining representative
of the Company's employees . On December 10, 1958, the SIU held a membership
meeting of the Company's employees, at which Pacheo and GambaTo were elected
delegates . A negotiating committee was also elected , composed of Pacheco,
Gambaro, Burgos, Garcia, Aviles Padilla, Bosch, and Grant. This committee was
to prepare demands and to negotiate a new agreement with the Company to succeed
the Mattress Workers' contract which was due to expire January 31, 1959. On
December 15, 1958, Gentile and the Company's attorney conferred with Bosch,
Pacheco, and Gambaro concerning the SIU's claim for recognition. It was decided
to let the matter rest until January 15, 1959. Late in December 1958, Bosch re-
signed from the SIU. On January 13, 1959, the Teamsters filed with the Board a
petition seeking to represent the Company's truckdrivers, helpers, and dispatch,
receiving, and warehouse employees (Case No. 24-RC-1143). On January 15,6
Gentile and the Company's attorney met with Grant, Pacheco, and Gambaro, and
the SIU's demand for recognition was repeated. Gentile refused to recognize the
SIU without a Board election. On January 23, the SIU filed with the Board a
petition seeking to represent the Company 's production and maintenance employees,
excluding drivers, helpers, and dispatch, receiving, and warehouse employees, and
other classifications not here material (Case No. 24-RC-1150). The Mattress
Workers was notified of the petitions filed by the Teamsters and the SIU but replied
that it was on longer in existence . Its name did not appear on the ballots in the
elections, which were held on February 25 pursuant to the petitions mentioned
above, and won by the Teamsters and the SIU, respectively. On March 5 the
SIU was certified as the bargaining representative of the Company's production
and maintenance employees , excluding the drivers , helpers, and dispatch , receiving,
and warehouse employees, with other exclusions not relevant here. On the same
date the Teamsters was certified as the bargaining representative of the Company's
drivers, helpers, and dispatch, receiving, and warehouse employees. At that time
the Company's total work complement was approximately 50 employees. Of these,
about 45 were in the SIU's unit (consisting of 43 production workers and 2 main-
tenance employees) and the remaining 5 were drivers and warehouse employees
in the Teamsters unit.
4 The Company is, and at all material times has been, a Puerto Rico corporation en-
gaged in the manufacture of mattresses , box springs , sofa beds , chairs, and similar prod-
ucts It maintains its principal office, factory , and warehouse in San Juan , Puerto Rico.
During the 12 months immediately prior to the hearing , the Company caused to be shipped
from points outside the Commonwealth of Puerto Rico into the said Commonwealth
materials valued at more than $100,000.
c On behalf of the Mattress Workers, the contract was signed by Pacheco , Gambaro,
and Burgos.
6 Unless otherwise noted, all dates hereafter refer to the year 1959.
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The SIU's negotiating committee had formulated proposed contract demands.
These had been submitted to and approved by the SIU's membership. On March 5
they were transmitted by Grant to Gentile. Negotiations for a contract to cover
the Company's production and maintenance employees commenced on March 16.
At this meeting the Company was represented by Gentile, and the SIU by Grant
and Keith Terpe, then president pro rein pore of the SIU. It was agreed that any
accord reached on individual clauses was to be considered only tentative until the
entire contract was completed. Terpe submitted a copy of a recent contract be-
tween the SIU and the Hair & Foam Company in Pennsylvania and stated to Gentile
that "he thought [it] could be used as a basis for . . . negotiations." Further ne-
gotiating meetings were held on March 17, 18, and 19. In addition to the repre-
sentatives present on March 16, the Company also was represented by Dan Raffone,
Gentile's immediate superior, and the SIU by Salvator Coils. The members of the
SIU's negotiating committee did not attend. No discussions were held at these
meetings concerning the demands forwarded by Grant to Gentile on March 5. By
March 19 the parties had reached tentative agreement on the recognition clause, the
union-shop clause, the no-strike clause, and the grievance procedure. However,
there had been no discussion of money matters or the duration of the contract.
Another meeting was scheduled for March 20.
At 11 a.m. on Friday, March 20, Grant went to the Company's plant and asked
Gambaro if he knew that the S1U and the Company had already started to negotiate.
Gambaro replied that he did not believe this because a note had been sent to Terpe
stating that the committee wanted to be present when negotiations began. Grant
then directed Gambaro to come to the SIU's office at 5 p.m. to "be informed of
what is going on." At 2 p.m. Pacheco and Gambaro went to the SIU office, where
Terpe told them that he had obtained, or thought he could obtain, certain wage
concessions from the Company. Coils stated that "the contract is going to be
signed this afternoon." Pacheco then contacted Burgos and Garcia, who came to
the SIU office. The negotiating meeting commenced, with Gentile and Raffone
representing the Company and Terpe, Coils, Pacheco, Gambaro, Burgos, and Garcia
representing the SIU. When the committee members learned that the Hair & Foam
contract had been used as a basis for discussion, that a copy of the demands sent
to the Company on March 5 was not available at the SIU office, and that certain
clauses had been tentatively agreed upon, they at first refused to negotiate and
sought more time to prepare. Gentile then sent for a copy of the original demands
made by the S1U, and the committee members ultimately agreed to negotiate. A new
beginning appears to have been made, the clauses already tentatively agreed upon
being discussed all over again. There was a great deal of disagreement between
Terpe and Coils, on the one hand, and the committee members on the other. From
time to time the Company's representatives were asked to leave the room temporarily
while the SIU's representatives resolved their differences (the committee members
taking views opposed to those of Terpe and Coils). Without going into excessive
detail, I deem it sufficient to describe the committee members' position on only
two major issues: they objected to the recognition clause which named the SIU
as the sole representative, and argued that the Comite should also be included.
With regard to the checkoff of union dues, they raised the question of who was to
receive these funds, "their treasury" or the SIU's 7 On each of these issues the
committee members, after some discussion, eventually gave in and receded from
their original position. The meeting broke up without a complete contract having
been agreed upon,8 and another negotiating session was scheduled for Monday,
March 23. For reasons appearing below, no bargaining meeting took place on
March 23.
On Saturday, March 21, Pacheco, Burgos, Garcia, and Gambaro released to the
press for publication a joint statement highly critical of Terpe's handling of the
contract negotiations and accusing him of an "attack on our rights." A copy of this
release was sent to Terpe, as Gambaro explained, "so that [he] should hear us or
listen to us." On the same day, Grant resigned from the SIU.°
7 As will be mentioned in more detail below, the treasury of the Mattress Workers was
then still intact
8 Gambaro testified that as the meeting ended on Raffone's statement to the committee
members that if they refused to sign 'a contract that night they would have neither a
contract, nor jobs, nor a union, and that from Monday on any employee who even looked
to the side would be subject to discharge. Gentile and Terpe contradicted this. I deem It
unnecessary to resolve this conflict.
8 Numerous copies of the joint statement of the committee members, and of Grant's
letter of resignation from the SIU, were later printed at the Teamsters' expense. The
Teamsters also printed other material picturing the SIU as betraying its followers.
COMITE DE EMPLEADOS DE SIMMONS, INC . 1191
2. The strike of March 23
Monday, March 23, was a half-holiday; the Company's employees were scheduled
to work only from 7.30 a.m. to noon. The employees arrived early and gathered
across the street. From about 6.30 to about 7 or 7:30 a.m., the employees held a
discussion with members of the negotiating committee.10 At 7:30 a.m., instead of
going in to work, the production employees formed a picket line in front of the
plant . The employees represented by the Teamsters also refrained from working,
but did not picket. The only employees of the Company who reported for work
were the maintenance workers. The pickets carried various signs reading:
SIU says sign contract or be
out of work and out of union.
Mr. Hall we are not fools.
SIU we reject sweetheart
contract signed by Keith
Terpe of the SIU.
We repudiate the company-union
contract, AFL-CIO, Meanie,
Marcano, Paul Hall."
SIU says [it] wants to sign
contract for five years.
SIU gave up our rights.
SIU wants to sell us
out-damn it! 12
About 7:30 a.m. Gambaro and Garcia went to Bosch's office. At their request,
Bosch prepared a draft of a telegram addressed to the Company which read:
WE ARE ON STRIKE DURING THIS DAY IN ORDER TO REJECT
AGREEMENT NEGOTIATED BY S.I.U. REPRESENTATIVE. WE DE-
MAND OUR COMMITTEE BE RECOGNIZED TO NEGOTIATE CON-
TRACT.
ANGEL LUIS GANBARO [sic]
Gambaro and Garcia then returned to the Company's plant, where they showed the
draft of the telegram to the employees. It was taken to the telegraph office and
dispatched by employee Angel Luis Cintron.
About 8 a.m., Gentile summoned Pacheco, Gambaro, Burgos, and Garcia to his
office. Segundo Pantojas, a driver's helper employed by the Company who was
shop steward of the Teamsters at the Company's plant, also appeared. He explained
that, although he was not a member of the committee, he was steward of the
drivers' group and wanted "to hear what is going on." Raffone and Charles M.
Seery, the Company's production manager, were also present. Raffone asked the
committee members if they were on strike and they answered in the affirmative.
Raffone then asked Pantojas if the employees represented by the Teamsters were
on strike. Pantojas replied that these employees "were not on strike but respected
the picket line of the striking employees." The committee members stated that
they had sent the Company a telegram explaining why they were on strike. The
discussion then ended. Later that day, the Company received the telegram, worded
as described above.
Several times during the morning , Gentile talked to Colls on the telephone and
requested him to "get the people back to work." Coils expressed surprise when told
what had happened. About 10:30 a.m. Gentile reached Terpe by telephone. Terpe
promised to come to the Compay's plant and talk to the employees. A short while
later Terpe arrived at the factory and addressed the assembled strikers. After
they had been assured by Terpe that "there was in fact nothing signed," the em-
ployees (including, apparently, the committee members) agreed to call off the strike.
"According to Gambaro, after the committee members reported on the progress of
negotiations, the employees decided not to go in to work, even though the committee
members advised against strike action. I deem it unnecessary to make any findings as to
what occurred at this gathering.
"The "Meanie" no doubt refers to George Meany, president of the AFL-CIO ; the
"Marcano" to the SIU's attorney. The committee's press release of March 21 described a
Paul Hall as "president of the SIU."
13 At what hour the signs were prepared is not entirely clear. Charles M. Seery, the
Company's production manager, testified that he saw some signs as early as 6 B0 a m.
Gambaro testified that signs were still being made at 7:30 a.m.
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, about 11:45 a.m., the picket line was removed. However, it being a
half-holiday, the employees did not return to work that afternoon. That afternoon
the Company filed with the Board the original charges herein (Case No. 24-CC-60)
alleging that the Comite, Gambaro, and Pacheco had violated Section 8(b) (4) (C)
.of the Act.
On the following morning, March 24, all the Company's employees reported for
work at the usual time. Except as hereafter related, they all worked a full day.
Before 6:30 a.m , Gentile told Gambaro to bring all the committee members to his
office. Gambaro rounded up Pacheco, Garcia, Burgos, and Aviles Padilla (who had
started work at 6 a.m.) and they all went to the office. Gentile asked if they were
all members of the committee, and they answered "Yes." Gentile then told them
,they were discharged "for inciting, encouraging and engaging in an illegal strike."
The legality of these discharges is not in issue herein. The men then left the plant
and went to the SIU headquarters where they conferred with Terpe and other SIU
officials concerning the advisability of filing charges with the Board alleging that
the discharges were discriminatory. That afternoon the following telegram was sent
to the Company:
UPON ACTION TAKEN BY US WORKERS RESUMED WORK TODAY.
WE ABROGATE AND WITHDRAW PREVIOUS TELEGRAM UPON
CLARIFICATION OF NEGOTIATION SITUATION. BARGAINING COM-
MITTEE READY TO RESUME NEGOTIATIONS ON BEHALF S.I.U.
WITH ATTENDANCE AND ASSISTANCE OF S.I.U. LEADERS TO WHICH
WE ARE AFFILIATED.
This telegram bore the names of Gambaro, Pacheco, Burgos, and Garcia.
3. The strike of March 25
At 7:30 a.m. on March 25, only the maintenance employees of the Company
reported for work. All the others remained out. A picket line appeared at the
plant. The pickets bore various signs, reading:
Gentile, who is next?
We protest about the discharged workers.
Gentile, you are not in Mexico.
Gentile, stop your hate against your employees.
About the time the picket line appeared, the committee members were, in accord-
ance with instructions given them the previous day, at the SIU's headquarters waiting
for Terpe. They were conferring with Terpe an hour later, when Gentile called
Terpe on the telephone to inform him that the Company's employees were once
again on strike. Terpe relayed this news to the committee members. As Terpe de-
scribed it, they "acted extremely surprised." Terpe requested the committee members
to go to the plant and tell the employees to return to work, but they refused to do so.
Terpe and the SIU's attorney also advised the filing of a charge against the Com-
pany, and sent Felix de Jesus Martinez, a representative of the SIU, to the Board's
office with the dischargees. At the Board's offices, however, De Jesus stated that he
was not authorized to sign a charge. Pacheco then filed a charge against the Com-
pany alleging the discriminatory discharge of the five committee members. This
charge (Case No. 24-CA-1133) was filed on behalf of "Comite de Negociaciones
de los Empleados de ]a Simmons, Inc." and was signed by Pacheco as "President."
On March 31, Gambaro as "Secretary" of the Comite signed a request for with-
drawal of the charge. On the same day, the SIU filed with the Board a new charge
against the Company alleging that the five committee members had been discrim-
inatorily discharged (Case No. 24-CA-1138).
Meanwhile, on March 30, the Company and the SIU resumed negotiations for a
contract to cover the Company's production and maintenance employees. The
Company was represented by Gentile and Seery; and SIU by Terpe, Coils, and
Rafael Quinnones. The five committee members were also present At the outset,
the SIU demanded that the Company reinstate the five discharged committee mem-
bers. After some discussion, it was agreed that further discussion of the matter of
reinstating the committee members would be postponed until after a complete con-
tract had been negotiated The contract was then discussed in detail. Further
negotiating sessions were held March 31 and April 1, 2, 3, 6, and 7. The committee
members attended these sessions, and frequently disagreed with Terpe. Coils, and
Quinnones. On April 7, the committee members returned to the SIU, funds which
COMITE DE EMPLEADOS DE SIMMONS, INC. 1193
the SIU had previously given to them. On April 8, additional signs appeared on
the picket line at the Company's plant. These read:
The SIU abandons us while on strike.
The SIU and the Company against the employees.
The SIU does not dare picket Simmons.
Nothing for me, everything for you, selfish employer.
After April 7, the Company and the SIU continued negotiations for a contract
covering the production and maintenance employees, but the committee members did
not attend any sessions after that date.
On April 9, representatives of the Company and the Teamsters conferred in regard
to a collective-bargaining contract for the Company's drivers, helpers, and warehouse
employees. The Company was represented by Gentile, Raffone, and Seery; the
Teamsters by Richard Kavner, Frank Chavez, its secretary-treasurer, and Bosch.13
Much of the discussion concerned the strike at the Company's plant. The record
contains a number of conflicts as to what was said by the participants.14 Without
attempting to resolve each conflict, I deem it sufficient to find that, during the meeting,
the Teamsters' representatives stated that they thought the strike could be ended if
the Company would reinstate the five dischargees and sign a 1-year contract with the
SIU. Otherwise, warned the Teamsters' representatives, the Company might face
a strike for a year.
On April 10, the Company and the SIU executed a 3-year contract governing
the Company's production and maintenance employees. The negotiating committee
members were not present and did not sign. On April 14, representatives of the
Company again conferred with representatives of the Teamsters regarding a contract
to cover the Company's drivers and warehousemen. Gentile told Chavez that the
Company and the SIU had signed a 3-year contract for the production and main-
tenance unit. Chavez replied: "You must like trouble. You could have signed a
1-year contract with the SIU, reinstated the five employees you fired, and have the
strike over with." Chavez then suggested that the Company reinstate the five
committee members pending final Board action on the SIU charge against the
Company. On April 15 the SIU filed with the Board the original charge herein
(Case No. 24-CC-61) against the Comite, the five individual committee members,
and the Teamsters, alleging that they had violated Section 8(b) (4) (C) of the Act.
The strike and picketing continued. The striking production workers "made a
weekly collection" from the International Longshoremen's Union. They also re-
ceived money from another source: a fund amounting to possibly $1,000 was still
deposited in a bank under the name of the Mattress Workers, subject to withdrawal
upon the authorization of the former treasurer of the Mattress Workers. During
the strike, the striking production employees met and authorized the payment of
$7 per week from this account to each striking production worker. The Company's
drivers and warehousemen continued to respect the picket line; each of them received
$20 "for subsistence" from the Teamsters.
On April 28, on petition of the General Counsel, Hon. Clemente Ruiz-Nazario,
United States District Judge, enjoined the Comite, the five individual committee,
13 The finding that Bosch represented the Teamsters is based upon Bosch's testimony
that he attended at Kavner's Invitation, and Chavez' admission that he gave a statement
to a Board investigator that "the union was represented by Richard Kavner . . . my-
self . . . also representing the union was Attorney Victor Bosch "
The General Counsel contends that Bosch also represented the Comite at this meeting..
This was denied by Bosch and Gambaro. The General Counsel attempted to show that at
the meeting, either Kavner, Chavez, or Bosch stated that Bosch represented the Comite.
But even if such a statement was made, it would be immaterial. The fact of agency
cannot be established by mere proof that the purported agent claimed to have authority.
See 2 Restatement of Agency 2d, sec. 285 I accordingly find no probative evidence that
Bosch represented the Comite at this meeting
14 Gentile and Seery, witnesses for the General Counsel, testified that during this meet-
ing (1) Raffone asked what if the Company and the SIU signed a contract and then the
SIU demanded that employees be discharged for nonpayment of dues. Either Chavez or
Kavner replied. "We will take care of the dues . . . for a period of a year, if we have-
to"; (2) Bosch warned • "If you get an injunction, all we will have to do is change the-
picket signs"; and (3) Raffone asked how the strikers could remain out for a year with-
out funds. Either Chavez or Bosch answered : "We will pay them for a year" Bosch,
and Chavez, witnesses for the Comite and the individual Respondents, denied that such,
statements had been made.
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
members, and the Teamsters , pending final disposition of these cases by the Board,
from picketing the Company 's premises or otherwise inducing or encouraging em-
ployees to strike, with an object of forcing or requiring the Company to recognize
or bargain with either the Comite or the Teamsters as collective-bargaining agent
of the employees in the SIU unit, unless or until they were certified as the repre-
sentative of said employees (Civil No. 89-59, D.C., P.R .). This injunction is still
in effect . Upon issuance of the injunction picketing ceased and the employees
returned to work. The Company has not reinstated any of the discharged committee
members.
B. Status of the Comite and its agents
1. Contentions of the parties
The complaint alleges that the Comite is, and at all material times has been, a
labor organization within the meaning of Section 2(5) of the Act . In support of this
allegation , the General Counsel contends that there was "a change in name only
of the Mattress Workers Union into the Committee of the Employees of Simmons,
Inc., but a continued maintenance of a separate identity ." He also argues that "at
a certain point . . . correlative with the departure of Bosch and Grant, the com-
mittee lost interest in the SIU and attempted to maintain and establish itself and
function as an independent organization ." In this connection , the General Counsel
maintains that the Comite had officers separate from the SIU officers and a treasury
separate from the SIU's treasury . Finally, the complaint alleges that the individual
Respondents are, and at all material times have been, officers and/or agents of the
Comite, and/or agents of the Teamsters.
The consolidated answer of the Comite and the individual Respondents denies
that the Comite is or was a labor organization , and denies that the individual
Respondents are officers and/or agents of the Teamsters . On the contrary, this
answer alleges that they were at all material times "members of the S.I.U. negotiat-
ing committee ." The Teamsters ' answer alleges lack of knowledge as to whether
or not the Comite is a labor organization , and denies that the individual Respondents
were agents of the Teamsters.
2. Conclusions regarding the Comite
In The Grand Union Company , 123 NLRB 1665 , the Board said:
The Act in Section 2(5) defines "labor organization" to include any agency
or employee representation committee or plan in which employees participate
and which exists for the purpose , simply stated , of collective bargaining.3 The
legislative history concerning this definition shows that it was phrased broadly
in order to guarantee independence of action under Section 7 by all types of
bargaining organizations of employees , and to protect and circumscribe such
action under Section 8 equally with the action of employees represented by
traditional labor organizations.4
8 Sec. 2 ( 5) "The term `labor organization ' means any organization of any kind,
or any agency or employee representation committee or plan, in which employees
participate and which exists for the purpose, in whole or in part , of dealing with
employers concerning grievances , labor disputes , wages , rates of pay, hours of em-
ployment , or conditions of work "
4 S. Rept No. 573, 74th Cong , 1st sess , p 7, on S . 1958, which became the Wagner
Act, contained the following explanation of this definition :
The term "labor organization " Is phrased very broadly in order that inde-
pendence of action guaranteed by section 7 of the bill and protected by section 8
shall extend to all organizations of employees that deal with employers in regard
to "grievances , labor disputes, wages , rates of pay, hours of employment, or con-
ditions of work ." This definition includes employee-representation committees
and plans in order that the employer 's activities in connection therewith shall
be equally subject to the application of section 8. [Emphasis supplied.]
Let us examine the facts of the instant case in the light of these principles. The
record does not support the General Counsel's contention that the Mattress Workers
has continued to exist as a union separate and distinct from the SIU, but merely
changed its name to the Comite . Nor can I find any basis for the General Counsel's
argument (apparently inconsistent with his contention mentioned above ) that the
Comite first established its independent existence when Bosch and Grant left the
' COMITE DE-EMPLEADOS DE SIMMONS, INC. 1195
SIU. On the contrary, the Comite appears to have come into existence at the
December 10, 1958, meeting of the SIU, as the product of an official act of the
SIU, and to have' functioned-until March 23-as an arm of the SIU, within the
framework of the SIU's organization.15
On March 23, however, Pacheco, Gambaro, Garcia, and Burgos jointly adopted
a telegram to the Company demanding that the Comite be recognized as the ex-
clusive bargaining representative of the production and maintenance employees.16
What was the legal effect of such a demand? In the Grand Union case, supra, the
Board held that an individual "selected as a result of the employee agency or plan
for representation . . . has become d labor organization within the meaning of the
Act" at the moment he "petitions the Board for exclusive bargaining rights." By the
same token, it would seem that a group working within the framework of a labor
organization has become a distinct labor organization at the moment it splits off
from its parent and demands from an employer separate recognition as the em-
ployees' exclusive bargaining. agent. It is accordingly found that on the morning
of March 23, by adopting the telegram sent to the Company, Pacheco, Gambaro,
Garcia, and Burgos established the Comite as a labor organization separate and
distinct from the,SlU.
It will be recalled that on March. 24. Pacheco, Gambaro, Garcia, and Burgos in
a telegram to the Company withdraw_ their demand of the previous day for separate
recognition, stated their willingness to bargain with SIU officials attending, and
acknowledged their affiliation with the SIU. Thereafter, the Comite reverted to
its former status as a negotiating committee within the SIU's organization. It may
be that, by such,,conduct, the Comite, ceased to exist as an independent labor
organization. But for reasons which will appear below, it is not necessary to reach
this point. It is sufficient to find, as I do, that on March 23 and 24, 1959, the Comite
was a labor organization within the meaning of Section 2(5)-of the Act, separate
and distinct from the SIU.17 - : .
3. Conclusions regarding agency -
On March 23, when Pacheco, Gambaro,' Garcia, and Burgos adopted the telegram
and established the Comite as a labor organization independent of the SIU, they must
have intended it to be able to adt"through themselves as representatives. It is
accordingly found that each of them thereby constituted and appointed each of the
others as an agent of the Comite. It follows that on March 23 and 24, 1959, Pacheco,
Gambaro, Garcia, and Burgos were agents of the Comite.
. On April 10 Pacheco and Gambaro were seen conferring with officials of the
Teamsters at the Teamsters' headquarters: There is no evidence as to what was said.
In May they were observed in,the company of an organizer for United Rubber,
'ork, Linoleum and Plastic Workers of America, AFL-CIO, during-that union's
attempt to organize the employees of Lennox Plastic Company. These facts fall far
short of establishing any agency relationship between the Teamsters and any of the
individual Respondents. It is accordingly found that the General Counsel has failed
to sustain the allegations of the complaint that Pacheco, Gambaro, Garcia, Burgos,
and Aviles Padilla are, and at all material times were, agents of the Teamsters.
15 Terpe testified that the Comite members never joined the SIU; Gambaro denied this.
I find it unnecessary to resolve this conflict
"In finding that Pacheco,- Gambaro, Garcia, and Burgos adopted the telegram, I am
not unaware that Gambaro testified that, although he knew the telegram's contents, he
did not authorize Cintron to dispatch it , However, it is unnecessary to determine whether
or not the dispatching of the telegram was authorized. The record shows that no changes
were made in the draft ; the wording drafted by Bosch at 7 •30 a m. was identical with
the wording of the telegram received by the Company later in the day The record also
shows that at 8 a in., in the presence of representatives of the Company, Pacheco.
Gambaro, Garcia, and Burgos stated that they had sent the Company a telegram explain-
ing why they were on strike By such a statement they adopted the telegram as their own.
17 In reaching this conclusion I have not found it necessary to pass upon (1) whether
the Comite, had officers separate from those of the SIU, (2) whether the Comite had a
treasury separate from that of the SIU; (3) whether Pacheco was authorized to file
charges in Case No 24-CA-1133 on the Comite's behalf and whether Gambaro was
authorized to withdraw them, and (4) whether, if Pacheco was so authorized, the con-
duct of the Comite in filing this type charges (as contrasted with charges of violation of
Section 8(a) (5) of the Act) tends to prove its continued existence as a labor organization
distinct from the SIU
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Conclusions regarding-the strike of March 23
1. Inducement and encouragement by the Comite
The complaint alleges, and the joint answer of the Comite and the individual
Respondents denies, that the Comite and its agents, beginning on or about March 20,
"repudiated the SIU as the collective bargaining representative of employees in the
certified unit . . . and . . engage[d] in and . . . induce[d] and encourage[d]
employees of Simmons and other employers to engage in a strike." In this con-
nection, the General Counsel maintains that the Comite "started the strike, controlled
the strike . . . and had planned on this strike at least over the weekend between the
20th and the 23rd of March."
So far as the alleged "repudiation" of the SIU by the Comite beginning on March
20 is concerned, it is true that on March 20 four members of* the SIU's negotiating
committee disagreed with Terpe's views and methods during bargaining, and that
this disagreement between the various representatives may perhaps be looked upon
as hampering the collective-bargaining process. But such disagreements are not
forbidden by the Act. It is likewise true that on March 21 these same four members
of the SIU's negotiating committee released to the press an attack on Terpe and the
SIU. Assuming that, this constituted what the complaint describes as "repudiation"
of the SIU, such conduct does not fall within the proscription of Section 8(b)1(4) (C)'
of the Act, absent strike action vis-a-vis their employer. Moreover, such attacks
upon union officials would appear to constitute' the exercise of protected free
speech. No case has been called to my attention, and I am familiar with none,
holding that a verbal or written attack by a group of employees upon a union
official constitutes an unfair labor practice. Indeed, any such 'rule would go far
toward silencing constructive criticism within unions.
With regard to the General Counsel's theory that the Comite started and con-
trolled the strike and planned it in advance, this is highly speculative. I find no
probative evidence in the record to support it.
What evidence is there, then, that the Comite induced or encouraged any employee
of the Company to engage in the half-day strike of March 23? It will be recalled
that, after Bosch drafted a telegram to be sent to the Company reading: "WE ARE
ON STRIKE DURING THIS DAY" etc., Gambaro and Garcia showed this draft
to the employees gathered outside the Company's plant. The United States Supreme
Court has said, "speaking of Section 8(b) (4) of the Act: "The words `induce or
encourage' are broad enough to include in them every form of influence and per-
suasion." 18 Bearing this in mind, I am convinced that the action of Gambaro and
Garcia in circulating the "WE ARE ON STRIKE" telegram induced and encouraged
the employees by strengthening their determination to strike. This conduct was
engaged in by them as agents of the Comite acting within the scope of their au-
thority. I accordingly conclude that on March 23 the Comite induced and encouraged
the Company's employees to engage in a strike against the Company.19 'I find no
evidence to. support the allegation of the complaint that, during this half-day strike,
the Comite induced or encouraged strike action by employees of employers other
than the Company 20
2. Participation by the individual Respondents
As Gambaro and Garcia were the individuals who circulated the telegram to the
Company's employees, it is clear, and I find, that they, as agents of the Comite,
individually induced and encouraged the Company's employees to strike. In any
event, on March 23, Pacheco, Gambaro, Garcia, and Burgos refused to work that
morning.' Each of them therefore engaged in the strike, as alleged in the complaint.
It is accordingly unnecessary to decide whether Pacheco and Burgos individually
induced and encouraged the Company's employees to strike.
Aviles Padilla stands on a different footing. He was not present on March 20
when Pacheco. Gambaro, Garcia, and Burgos conferred with the SIU officials and
later negotiated with representatives of the Company. He did not participate in the
joint statement of the other committee members released to the press on March
Is International Brotherhood of Electrical Workers, Local 501, et al . v. N.L.R.B. (Samuel
Larger), 341 U S 694, 701-702.
19 The complaint also alleges that the Comite "attempted to induce and encourage" the
Company's employees to engage in strike action, but mere attempts do not appear to be
proscribed by the Act
29 Compare Local No. 25, Bakery & ,Confectionery Workers International Union of
America, AFL-CIO, et at (King's Bakery, Inc ), 116 NLRB 290, 296 ; and International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, etc, Local No. 41,
A.F. of L. (Union Chevrolet Company), 96 NLRB 957, 958.
COMITE DE -EMPLEADOS DE SIMMONS, INC. 1197
21. He was out of the metropolitan aiea from the evening 'of March ^20 until the
afternoon of March 23; consequently he did not take part in the half-day strike of
March 23. Indeed, he did not even know that such a strike had occurred until
after it was terminated.' I.find the record-completely devoid'of any evidence linking
him with the strike, the telegram, or the Comite's activities on March 23 21
3. Participation by the Teamsters
The complaint alleges that,the Teamsters, begining on or about March 20, engaged
in, and induced and encouraged employees of the Company to engage in, a strike.
The Teamsters' separate answer denies this allegation, but admits that members of
the Teamsters employed by the Company "have refused to go through a picket line
maintained by other employees . . . in a bargaining unit other than the bargaining
unit for which Respondent Teamsters . . . has been certified." So far as the strike
of March 23 is concerned, it is clear that the Company's drivers and warehousemen
refrained from working during the half-day strike; but the question raised by the
Teamsters' denial is whether the Teamsters as a'labor organization went on strike
or whether, on the'contrary, the five drivers and warehousemen in the Company's
employ, without any inducement or encouragement whatever from the Teamsters,
each decided separately and individually to respect the Comite's picket line.
On this issue there is very little evidence. There is, however, Pantojas' 8 a.m.
statement to Raffone, in the presence of Pacheco, Gambaro, Burgos, and Garcia,
that the Company's drivers "respected the picket line of the striking employees."
For the purpose of argument it may be assumed that Pantojas, in making this state-
ment as steward for the drivers, did so as an agent of the Teamsters acting within
the scope of his authority. In my opinion, Pantojas was not committing the Team-
sters to any future course of action, but instead was merely relating a fact, namely;
that the individual drivers had refused to cross the picket line. And since none of the
drivers was present when the statement was made, they cannot be said to have,
been influenced thereby.
The Teamsters members did not picket during this half-day strike, nor has it
been shown that they received any strike benefits for this particular half day. It is
accordingly found that the General Counsel has failed to prove that the Teamsters,
as a labor organization participated in, or induced and encouraged any employees
of the Company to participate in; the strike of March 23.
4. Object of the strike
It has been found that the Comite and the individual'Respondentg except Aviles
Padilla engaged in, and induced and encouraged the Company's employees to engage
in, a half-day work stoppage on March 23. The complaint alleges, that an object
of this strike was "to force and require Simmons to recognize' and bargain with
the Respondent Committee and/or Respondent Teamsters -. . . concerning the . ,
conditions of employment of employees of Simmons, notwithstanding that the SIU
had been certified as the exclusive collective bargaining agent of said employees."
The consolidated answer of the Comite and' the individual Respondents denies this
allegation , and alleges that the Company 's employees "engaged in a one-half day'
work stoppage on March 23, 1959, because of their dissatisfaction with Simmons
during bargaining negotiations prior to that date."
The issue of object boils down to interpreting, under all the circumstances, the
last sentence of -the March 23 telegram, namely: "WE DEMAND OUR COM-
MITTEE BE RECOGNIZED TO _ NEGOTIATE CONTRACT." The General
Counsel contends that this means the Comite wanted to be recognized as the sole and
exclusive bargaining agent, separate and, distinct from the SIU; and -demanded the
Company meet with it alone, in the absence of officials of the SIU., The Comite
and the individual Respondents argue, conversely, that the quoted sentence of the
telegram merely demanded that the Comite be recognized as part of the SIU nego-,
tiating team, and be permitted to participate in bargaining sessions along with the
SIU officials. The weakness of the Comite's argument in this respect is apparent
when it is recalled that the committee members did, in fact, participate fully in the
negotiating session of March 20, and the record reveals no valid reason why they
should assume that they would be excluded from any future bargaining. It may
well be, as their answer alleges, that the strike was caused by dissatisfaction with
the way negotiations had proceeded, but the solution they sought was to remove the
SI U's officials from the picture. That this was the import of the telegram of March 23
21 The General Counsel concedes , in his brief , that Aviles Padilla was not present at the
plant on March 23 but argues that "he had been a member of the Comite that planned
the strike." However, as mentioned above, I find no evidence that the strike, was planned
in advance. I . - r- , _
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is further shown by the telegram- of March 24: This later communication, after
specifically abrogating and withdrawing the prior demand, stated that the committee
was ready to resume negotiations "WITH ATTENDANCE' AND ASSISTANCE
OF S.I U. LEADERS." Had the original object been merely to attend along with
the SIU leaders, there would have been no need to revoke it and send the second
telegram . By nullifying the first telegram and simultaneously conceding the SIU
officials' right to be present at negotiations, the Comite clearly revealed its original
intent to deny them this right. It is accordingly found that an object of the strike
was to force the Company to remove the SIU as the sole bargaining agent for the
Company's production and maintenance employees, and substitute the Comite in
its place. As the Board had certified the SIU as the exclusive representative of
these employees, and the certification was still effective, the objective was one pro-
scribed by Section 8(b) (4) (C) of the Act.
As of the time this half-day strike ended, the Teamsters had not made any
demands on the Company that it be recognized for any employees outside the unit
for which it was certified. It is accordingly clear, and I find, that the General
Counsel has failed to prove that an object of the March 23 strike was to force the
Company to recognize the Teamsters as bargaining_ agent for its production and
maintenance employees.
D. Conclusions regarding the strike which began on March 25
1. Contentions of the parties
The General Counsel in his brief maintains that "After March 25, 1959, and up
to April 28, 1959, the, . . . strike continued to have as a purpose to force the
employer to bargain with the Comlte,'•but added as an object, the requiring of
Simmons to bargain with the Comite regarding grievances arising from the dis-
charge of certain employees adherents of the Comite. The entire course of conduct
of the Comite, beginning on March 23rd and continuing to April 28th constituted
[a] violation of Section 8 (b) (4) (C) of the Act." , But the joint answer of the
Comite and the individual Respondents alleges that "a second work stoppage
commenced on March 25, 1959, . . because of the unlawful discharge of the
Respondent members of the negotiating committee of the S.I.U." Assuming, with-
out deciding, that the Cbmite remained in existence after March 24 as a labor
organization separate from the SIU and that all the Respondents engaged in, or
induced and encouraged the Company's employees to engage in, the strike which
began on March 25,22 the crucial question becomes: Whether one 23 object of that
strike was the same as the object of the previous strike, namely, to compel the
Company to recognize the Comite as the exclusive bargaining representative of its
production and maintenance employees. The General Counsel would answer
this in the affirmative; the Respondents in the negative.
2. Object of the strike
The General Counsel cites the Board decision in the Arnold Bakers case 24 to,
support his position that, except for an added object, the strike of March 25 was
a.mere continuation of the strike of March 23. In Arnold Bakers Local 50 pick-
eted for recognition. While the picketing was in progress, the Board certified an-,
other union. Local 50 thereafter continued the picketing but changed the wording
of the signs being carried by its pickets. The. Board, pointing out, that "there is
no evidence that Local 50 took any steps to indicate that its purpose had, in fact,
changed," held that the purpose of the picketing after certification was the same
as it had been before certification and Local 50 had therefore violated Section
8(b)(4)(C) of the Act. But the facts here are substantially different. Here the,
first strike had terminated, the employees had all returned to work, and had worked
a full day between the ,first and second strikes. There was no such hiatus in
Arnold Bakers. Here, the strikers had sent a message to their employer expressly,
renouncing their demand for recognition. There was no similar renouncing of
objective in Arnold Bakers. Here, also, there was •a change in the tenor of• the
picket signs from dissatisfaction-with the SIU in the earlier strike.,to complaints-
22 There is evidence that during this strike some of the individual ' Respondents per-
sonally picketed and/or directed the pickets ' activities.
23 N.L R.B. v . Denver Building and Construction Trades Council , eta at. ( Gould &
Pretsner), 341 U S 675 , 688, 689; and Local No. 25 , Bakery & Confectionery Workers-
International Union of America, ' AFL-CIO, et at. (King's Bakery , Inc.), 116 NLRB
290, 295. !
24 Local 50, Bakery & Confectionery Workers International Union , AFT-CIO (Arnold
Bakers, Inc ), 115 NLRB 1333, enforcement denied 245 F. 2d 542 ( C.A. 2).
COMITE DE EMPLEADOS DE SIMMONS, INC . : 1199
against the Employer at the start of the strike of March 25. Indeed Seery, a wit-
ness , for the General-Counsel, testified that "there was a complete change in the
tone of the strike." 25 Finally, there was an independent intervening act by the
Employer (namely, the discharge of five employees) which triggered the second
strike. No such event occurred in Arnold Bakers. Hence I conclude that the
object of the strike which began on March 25 was quite different from that of the
strike of March 23.
What, then, was the object of the strike which commenced March 25? It does
not appear to have been, to, secure recognition- for the Comite, for that- claim had
been abandoned on March 24 and was not renewed in any communication 'to the
Company. In view of the telegram of March 24, the discharges of the same date,
the nature of the signs carried by the pickets on March 25, and the entire record
in these cases, I am convinced and find that the sole object of the strike which
began on March 25 and ended on April 28 was to force or require the Company
to reinstate the five employees whom it had discharged on March 24.
3. Legality of the object
The General Counsel ably and vigorously urges that, even if the sole object of
the strike was to obtain the' reinstatement of the dischargees, this objective under
the facts here present is one proscribed by Section 8(b) (4) (C) of the Act. For
this proposition, he relies on the Lewis Food case.26 There, the Respondent struck
and picketed the employer's plant in furtherance-of its demand for recognition in
the face of an outstanding certification of another union. The Trial.Examiner and
the Board agreed that such conduct was violative of Section 8 (b) (4) (C) of the.
Act. Before the picketing had commenced, the employer had discharged certain
employees. During the picketing, the Respondent notified the employer that it
would cease picketing if the employer would reinstate the dischargees. The Trial
Examiner found that picketing for this purpose was not unlawful because the
Respondent's purpose was to adjust a grievance arising out of the discharge of its
adherents, a grievance which it had standing under Section 9(a) of the Act to
adjust, despite the certification held by another union. The majority of the Board:
disagreed with the Trial Examiner on this-point, saying:
In the instant case the Board is of the opinion . . . that the second of the'
Union's dual objectives, namely, striking to force the Employer 'to reinstate
certain dischargees, is equally violative -of, Section 8(b) (4) (C). [Footnote
omitted.] Whether or not the demand for the reinstatement of these employees
be considered a grievance, the Union's strike for such a purpose necessarily, in,
our opinion, is a strike to force or require the Employer to recognize and
bargain with the Respondent as to this matter . . recognition and bargaining'
are essential' elements of this objective without which it- would be impossible for
the Respondent to satisfactorily settle its specific dispute.27
-But, in my opinion ,' the facts present here differ substantially from those existing
in Lewis Food, and hence require a different result.- For 'here the Comite specifi-,
zs The General Counsel points out that new,picket signs appeared on April sand argues
that this shows "that the intent was once again to obtain complete-severance from the
SIU." I cannot agree. The signs The SIU abandons us while on strike" and "The SIU
does not dare picket Simmons" are merely critical of the SIU's alleged failure to take
more vigorous steps to secure the reinstatement of-the dischargees. The other signs, "The
SIU and the Company against the employees" and "Nothing for me, everything for you,
selfish employer" bespeak dissatisfaction with the.progress of negotiations-possibly even
infer collusion-but fall short of demanding separate recognition for the Comite. Had
the Comite members intended to renew their demand for separate recognition, I am con-
vinced that they would not have depended solely on such picket signs. Their past con-
duct indicates that they knew full well how to phrase such a demand and would not have
hesitated to do so, had that been their aim.
ii Meat if Provision Drivers -Union, Local No. 626, etc (Lewis Food Company), 115
NLRB 890.
2i In reaching this conclusion; the Board noted its respectful disagreement with the
contrary reasoning of the United States Court of Appeals for the Second Circuit in
Douds v. Local 1250, Retail Wholesale Department Store Union etc., 173 F. 2d 764- As a
Trial Examiner I am therefore. bound, to follow the decision of the Board in the Lewis
Food,caset(rather than the holding of the, Second Circuit in Douds v. Local 1250 ), unless
or until it is reversed by either the Board or the United States Supreme Court., Insurance
Agents' International Union, AFL-CIO, (The Prudential Insurance Company of America),
119 NLRB 768; Novak Logging Company, 119 NLRB 1573; and Scherrer and Davisson-
Logging Company, 119 NLRB 1587. - , '
1200 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
tally revoked its demand for recognition before the strike began on March 25, and,
never renewed it; thus there was no strike with a dual purpose. Here the SIU,
the certified union, itself took. steps to secure the dischargees' reinstatement: it
made demands upon the Company for reinstatement of the dischargees at the
beginning of the very next bargaining session (which demands it apparently never
withdrew); it filed charges against the Company alleging that the discharges were
discriminatory; and it paid funds to the dischargees (albeit they later returned this
money). Moreover, the members of the committee personally participated in
negotiations with the Company after the discharges, and did so as part of the
SIU's bargaining team. It thus -appears, and I find, that the committee members
and the SIU made common cause regarding the reinstatement of the dischargees.
This distinguishing factor, it seems to me, removes these cases from the reach of
She Lewis Food holding that it would be "impossible" for the strikers to obtain
what they sought (i.e., reinstatement of the dischargees) without the Company
bargaining separately with members of the Comite in the absence of representatives
.of the SIU, the certified bargaining agent. 1 conclude that the object of the strike
which began on March 25-to force reinstatement of the dischargees-was not one
proscribed by Section 8(b) (4) (C) of the Act.
4. Objectives of the Teamsters' conduct
The General Counsel contends that the Teamsters "acted in concert with and
instigated and aided and abetted the Comite . . . in the carrying [on] of an
illegal strike in violation of Section 8(b)(4)(C) [and thereby] adopted the illegal
purpose and thus also violated the afore-mentioned section." But even assuming
that the Teamsters engaged in, or induced and encouraged employees to engage in,
,activities designed to further the aims of the strike which began on March 25,28 it
has been found above that the purpose of that strike was not an illegal one. Hence
the Teamsters cannot be said to have fostered a strike which had an object proscribed
by the Act. -
Finally, the General Counsel takes the position that "in addition the Teamsters
also independently violated Section 8(b)(4)(C) by engaging in the conduct as set'
forth above with an object of compelling. Simmons to limit the term of any collective
bargaining with the SIU to a period of one year and to reinstate the five Comite
members. (Refer to Teamsters conduct at April 9 meeting.)" With regard to
the Teamsters' alleged strike pressure upon the Company to prevent it from contract-
ing with the SIU for a period of more than a year, the General Counsel points out
that the Teamsters, knowing it could not legally represent the Company's produc-
tion and maintenance employees for at least a year, wanted to be in a position to
take over their representation from the SIU at the earliest possible time 29 Hence,
argues the General Counsel, it pressured the Company "to prevent the consummation
of a contract longer in duration that one year with the SIU." But even if the General
Counsel is correct in his appraisal of the Teamsters' motive, "So long as a union
acts' in its self-interest . the licit and illicit . . -. are not to be distinguished by
any judgement regarding the-wisdom or unwisdom, the rightness or wrongness, the'
selfishness or unselfishness of the end of which the particular union activities are
the means." 30 Therefore we must leave the Teamsters' motive to one side, and
examine only what it was that the Teamsters was trying to get the Company to do.
This was to contract with the SIU for a period not to exceed a year. As the demand
was that the Company contract with the certified bargaining agent, it cannot in
sound reason be maintained that the Teamsters sought recognition for itself for the
Company's production and maintenance employees, or attempted to supplant the
SIU as their bargaining representative. What it might have hoped to do in the
future is not only speculative but also immaterial.
The General Counsel's contention that the Teamsters violated Section 8(b) (4) (C)
of the Act by bringing strike pressure to bear on the Company to reinstate the dis-
chargees is equally unsound. It should be recalled that the dispute between the'
production and maintenance employees on the one hand and the Company on the'
other had an immediate effect upon the drivers' working conditions, as they refused
to cross the picket line. Thus the Teamsters, which represented the drivers and was
engaged in negotiating a' contract to cover them, had a direct interest in the early
28 It will he'recalled that the Teamsters gave funds to the striking drivers of the Com-
pany, whom it represented. Also, Pantojas engaged in certain picket-line conduct during
this strike which the General Counsel 'describes as "active participation by a Teamsters
union shop steward in the strike'at Simmons."
29 Although the Teamsters and the SIU had at one time enjoyed friendly relations in
Puerto Rico, there- is. evidence that in March this situation no longer prevailed.
3° United States v. Hutcheson, 312 U S. 219, 232. ' ' -
,COMITE DE EMPLEADOS DE,SIMMONS, INC. 1201
settlement of this dispute. Surely, under these circumstances, it was not wholly
'pr'ecluded from discussing the'inatter with-the 'Company and exploring the possi-
bilities of settling the dispute. This is ,not to say that' I am necessarily convinced
-that- theTeamsters' only concern was to get its men working again. But I do suggest
that we should step cautiously before stamping as an unfair labor practice the conduct
of a third party whose only guilt might be-that it attempted to act the role of the
peacemaker vis-a-vis the disputants. Be that as it may, the Teamsters' demand for
reinstatement of the dischargees not only coincided with the strikers' demand but
also made common cause with the SIU. For, as pointed out above, the SIU likewise
demanded such reinstatement and even filed charges against the Company on the
dischargees' behalf. Moreover,, the Teamsters never attempted to organize the
Cdinpany's' production and maintenance employees and never made a demand on
the Company that it be recognized as their representative. It is therefore clear, and
,I'find, that by demanding that the Company reinstate the dischargees the Teamsters
was not seeking to supplant the SIU as the bargaining representative of the Com-
pany's production and maintenance employees. I accordingly find that, whatever
.the extent of the Teamsters' activities with regard to the strike which began on
March 25, it was not for a purpose violative of Section 8(b) (4) (C) of the Act.
E. Matters not covered in the complaint
The General Counsel called two witnesses who testified that in. April, Wilfred F.
Sykora, the Company's sales manager, was pushed by Aviles Padilla and struck by
.Otillio Fernandez while attempting to take a photograph outside the plant. Also
,Eladio Mulero, an independent trucker, testified that during the strike which began
on March 25, while he was making a delivery at the Company's plant; a crowd of
over -200 people attempted to prevent him from unloading his van and threw stones,
one of which smashed the windshield. -He further testified that, several people,
including Pantojas, were immediately in front of the truck. The complaint does
,not allege- any violation of Section 8(b) (1) (A) of the Act. The Board has held
that "when an issue relating to the subject matter of a. complaint is fully litigated
,at a hearing; the Trial Examiner 'and the Board are expected to pass upon it even
though it is not specifically alleged to be an unfair labor practice in the complaint." 31
-In accordance with that rule, I find that the testimony regarding these incidents
relates to the subject matter of the instant complaint. The question then remains
-whether it was "fully litigated", at the hearing. If so, it is my duty to decide the
matter-on the merits, although-not mentioned in the complaint.
None of the -witnesses who testified about these-,incidents were cross-examined
with regard thereto, nor did the Respondents produce any witnesses to contradict
their testimony. Moreover, the attack on Sykora was not mentioned at oral argu-
ment or in the briefs. The truck incident was referred to by the'General Counsel
at oral argument and in his brief. It was not adverted to at all by the Respondents.
But the extent to which these matters were pursued by the Respondents would not
seem to be the test of whether they were "fully litigated " 32 As the General Counsel's
witnesses described these events in some detail (except that Otillio Fernandez was
not further identified), it is found that they were "fully litigated"
So far as the attack upon Sykora is concerned, it will be assumed that the Comite
was still in existence as a separate labor organization, that Aviles Padilla was acting
,as its agent within the scope of his authority,33 that Sykora was a supervisor within
the meaning of the Act, that the attack took place as described, and that nonsuper-
visory employees of the'Company witnessed it. Even if all this should be found,
and the incident should then be held to be a violation of Section 8(b) (1) (A) of the
Act attributable to the Comite,34 it would be no more than an isolated instance of
" Monroe Feed Store, 112 NLRB 1336, 1337; Ford Radio d Mica Corporation, 115
NLRB 1046, 1074, remanded 258 F 2d 457'(C A 2), Supplemental Decision 122 NLRB .34;
and Texas Natural Gasoline Corporation, 116 NLRB 405, 411, enforcement denied 253
F 2d 322 (C A., 5). I note the contrary holding in N L R.B' v I B.& Mlq Cc , et al,
210 F 2d 634, 637 (CA 5). However, with due respect for the United States Court of
Appeals for the Fifth Circuit, as a Trial Examiner, I am bound by the Board's decisions
unless or until the Board or the United States Supreme Court determines otberwise
32 The Great Atlantic &_ Pacific Tea Company, 123'NLRB 747, footnote 2.
as See Central Massachusetts Josnt Board, etc, 123 NLRB 662 -
34 Assaults on supervisors in the presence of nonsupervisory employees have been held
violative of Section 8(b) (1) (A) of the Act. NL R B. v. International Woodworkers of
America, AFL-CIO, et al:, 243 F. 2d 745 (C.A. 5) ; and Conimunicattion's Workers of
America, AFL-CIO (Ohio Consolidated Telephone Company), 120 NLRB 684, enfd'. 266
F. 2d 823 ( C.A. 6), rehearing denied ' June 26, 1959, affd as mod. 362' U.S. 479. - `
560940-61-vol . 1'27-77
H",
DECISIONS OF''NATIONAL LABOR RELATIONS BOARD
such violence , by the, Comite, insufficient standing 'alone, to justify ,remedial Action
against the Comite. With regard to the Mulero incidents, the i same , principle
applies. Assuming that Pantojas, was acting as a Teamsters agent within the 'scope
of his authority and that The incident occurred as described and in the presence
of nonsiipervisory employees of 'the Company; it is , an isolated event 'with respect to
the Teamsters, and does not,, standing, alone, warrant • a cease-and-desist order
against the Teamsters.
THE REMEDY
Having found that Respondents Comite,'Pacheco, Gambaro;''Garcia; and Burgos
have violated Section 8(b) (4),(C) of the Act, it will be' recommended that they cease
and desist from engaging in, or inducing or encouraging' the employees of the
Company to engage in, any, work stoppage designed to force or require the Com-
pany to recognize or bargain 'with the Comite as the bargaining representative of
any employees in the unit described above, so long as any other union is certified
by the Board as the re'p'resentative of such employees. And the fact that these
Respondents appear voluntarily, to have ceased their unlawful conduct does not
make such reniedy any the less appropriate.35
So far 'as the posting of notices is concerned, the usual requirements must be
tailored to fit the peculiar circumstance present here that the Comite, not being a
traditional formalized labor organization, presumably maintains no regular, office or
meeting hall. Accordingly, it will not be recommended that posting be made in
the Comite's office or meeting hall. Instead, in order to effectuate the policies of
the Act, it will be recommended that Respondents Comite, Pacheco, Gambaro,
Garcia, and Burgos cause the usual notice to be published, at their own expense,
in a newspaper of general daily circulation in San Juan, in Spanish translation, and
in such format and with such frequency (not to exceed three times) as the Regional
Director shall determine. It will also be recommended that copies of the notice,
in Spanish translation, be signed and sent to the Company, if it be willing, for
posting at its San Juan plant.
As Respondent Aviles Padilla and -Respondent Teamsters have not been shown
to have committed any unfair labor practices, it will be recommended that the
complaint against them be dismissed. Finally, it will be recommended that the
complaint be dismissed insofar as it alleges that the remaining Respondents induced
or encouraged concerted activities by employees of any employer other than the
Company, or that an object of their conduct was to force or require the Company
to recognize or bargain with the Teamsters as the representative of any employees
in the unit described above.
Upon the basis of the foregoing findings of fact and upon the entire record in
these cases, I make the following:
CONCLUSIONS OF LAW
1. Simmons , Inc., is, and at'all material times has been , an employer within the
meaning of Section 2(2) of the Act.
2. Teamsters , Chauffeurs , Warehousemen and Helpers , Local 901, IBTCW & H
of America , and Seafarers International Union of North America, Atlantic & Gulf
District , P.R. Division , AFL-CIO, are, and at all material times have been, labor
organizations within the meaning of Section 2(5) of the Act.
3. Comite de Empleados de Simmons , Inc. (also known as Comite de Nego-
-ciaciones de los Empleados de la Simmons , Inc.) was on March 23 and 24, 1959,
a labor organization within the meaning of Section 2(5) of the Act
4. On March 23 and 24, 1959, Miguel Pacheco Cintron , Angel Luis Gambaro,
.Juan A. Garcia, and Jose C.- Burgos were agents of Comite de Empleados de
Simmons, Inc. (also known as Comite de Negociaciones de los Empleados de•la
Simmons, Inc.) within the meaning of Section 2(13) of the Act.
5. All production and maintenance employees employed by Simmons, Inc., at
its San Juan , Puerto Rico , place of business , excluding all office clerical employees,
truckdrivers , drivers' helpers , dispatching and receiving clerks, warehouse employees,
guards, and supervisors as defined , in the Act , constitute -a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9(b) of the Act
35 The cessation of unfair labor practices does not preclude- the issuance of ' a remedial
order General' Drivers, Chauffeurs, Warehousemen and Helpers Union. Local 1886
;.(American Iron and Machine Works), 115 NLRB 800, 807-808, enfd. 247 F 2d TI
(C.A., D C ), affd. 357. U.S. 93; and International Hod Carriers' Building' and Common
Laborers Union of America,. Local No. 83, AFL-CIO,-'et al. (Consolidated' Construction
Company, Inc.), 124 NLRB 1131, footnote 4. •1 7 ; ,, - A, -
ALAMO EXPRESS, INC., AND ALAMO CARTAGE COMPANY 1203
6. Seafarers International Union of North America, Atlantic & Gulf District,
P.R. Division , AFL-CIO, was on March 5, 1959, and at all times since has been,
the exclusive certified representative of the employees in the above -described unit
for the purposes of collective bargaining within the meaning of Section 9(a) of
the Act.
7. By engaging in, and inducing and encouraging the employees of Simmons,
Inc., to engage in, a strike or a concerted refusal in the course of their employment
to perform services for Simmons , ,Inc., on March 23, 1959, with an object of forcing
and requiring Simmons, Inc., to recognize or bargain with Comite de Empleados de
Simmons, Inc. (also known as 'Comite de Negociaciones de los Empleados de la
Simmons, Inc.) as the bargaining representative of the employees in the unit de-
scribed above, notwithstanding that another union had been certified by the Board
as the representative of such employees, Respondents Comite, Pacheco, Gambaro,
Garcia, and Burgos engaged in unfair labor practices within the meaning of
Section 8(b) (4)-(C) of the Act.
8. The aforesaid unfair labor practices, occurring in connection with the opera-
tions of Simmons , Inc., have a close, intimate , and substantial relation to trade,
traffic, and commerce among the several States and tend to burden and obstruct
commerce and the free flow thereof, and therefore constitute unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of the Act.
9. The General Counsel has failed to prove that Filliberto Aviles Padilla and
Respondent Teamsters, Chauffeurs, Warehousemen and Helpers, Local 901,
IBTCW & H of America, have committed, or are committing, any unfair labor
practices within the meaning of Section 8(b) (4) (C) of the Act.
10. The General Counsel has failed to prove that Respondents Comite, Pacheco,
Gambaro , Garcia, and Burgos induced and encouraged concerted activities by
employees of any employer other than Simmons, Inc., or that an object of their
conduct was to force or require Simmons, -Inc., to recognize or bargain with
Teamsters, Chauffeurs, Warehousemen and Helpers, Local 901, IBTCW & H of
America, as the bargaining representative of any employees in the unit described
above.
[Recommendations omitted from publication.]
Alamo Express, Inc., and Alamo Cartage Company and Local
968, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America and Local 657, Inter-
national Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America and Local 968, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America and Local 657, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America and Antonio Gil and Local 657, International Brother-
hood of Teamsters , Chauffeurs, Warehousemen and Helpers
of America and Local 968, International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers of America
and Local 657, International Brotherhood of Teamsters, Chauf
feurs, Warehousemen and Helpers of America . Cases Nos..
23-CA-853, 23-CA-866, 23-CA-867, 23-CA-888, 23-CA-891, 23-
CA-892, 23-CA-896, 23-CA-898, and 23-CA-902. June 17, 1960
DECISION AND ORDER
On December 16, 1959, Trial Examiner Sidney Lindner issued his
Intermediate Report in the above-entitled proceedings, finding that
the Respondent had engaged in and was engaging in certain unfair
127 NLRB No. 143.