Telefonos Publicos de Puerto Rico, Inc.

National Labor Relations Board - Administrative Judge Opinions

Aug 18, 2004

24-CA-009465 (N.L.R.B. Aug. 18, 2004)

JD–79–04
Carolina, PR

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES

TELEFONOS PUBLICOS DE PUERTO
RICO, INC.

and Case 24–CA–9465

RICARDO SANTOS ORTIZ, An Individual

Shecyl San Miguel, Esq. and Maria M.
Fernandez, Esq., for the General Counsel.
Anibal Lugo Miranda, Esq. and Janice
Richardson, Esq. (Lugo Miranda Law
Offices), of San Juan, Puerto Rico, for
the Respondent.

DECISION

STATEMENT OF THE CASE

EARL E SHAMWELL JR., Administrative Law Judge. This case was heard before me in
San Juan, Puerto Rico, on November 4–7, 2003, pursuant to an original charge filed by the
Charging Party, Ricardo Santos Ortiz, against Telefonos Publicos de Puerto Rico, Inc. (the
Respondent) on December 6, 2002; Santos Ortiz filed an amended charge against the
Respondent on January 31, 2003. On June 30, 2003, the Regional Director for Region 24 of
the National Labor Relations Board (the Board) issued a complaint and notice of hearing against
the Respondent.

The complaint alleged essentially that the Respondent violated Section 8(a)(1) of the
National Labor Relations Act (the Act) by interrogating, threatening with unspecified reprisals,
and suspending and discharging certain named employees because they engaged in concerted
protected activities and by interfering with said employees’ exercise of rights guaranteed them
under the Act.

On July 14, 2003, the Respondent filed its answer to the complaint, generally denying
the commission of any unfair labor practices and asserting certain defenses to the complaint
allegations.

On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Respondent, I make the
following

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Findings of Fact

I. Jurisdiction—The Respondent’s Employer Status

The Respondent, a Puerto Rico corporation with an office and place of business in
Carolina, Puerto Rico, has been engaged in the business of installing and maintaining public
coin-operated telephones throughout the Commonwealth of Puerto Rico. The Respondent
admits, and I find and conclude, that it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.

II. The Unfair Labor Practice Allegations.

A. Background Facts

The Respondent, a certified telecommunications company, provides public telephone
service throughout the Commonwealth of Puerto Rico. During the times material to the
litigation, the Respondent had about 3000 coin-operated “pay” phones installed around the
island; for example, at shopping centers, hospitals, and laundromats.1 The Respondent’s
phones are located on various routes and territories established by the Company throughout the
island.

The Respondent maintains a work force of around nine installer/collector service
technicians (techs or technicians) to service its telephones. Technicians work from 6 a.m. to
3 p.m. Monday through Friday. The Respondent does not conduct business on the weekends.
The technicians’ main responsibility is collecting telephones on their routes on a daily basis.
Some of the assigned routes are located in high crime neighborhoods. Accordingly, phones in
such areas are subject, with some frequency, to unauthorized removal, vandalism, and theft.
Techs’ assignments include repairing and replacing damaged phones. The following describes
the technicians’ typical workday and the procedures followed by the Company regarding the
collections of phones.

Technicians report to work at 6 a.m. and once admitted by a supervisor to the “vault,” a
lockable and camera-protected concrete/cinder block room on the premises, are given a copy of
the day’s route summary report listing the phones that require not only collecting but also
possible repair or other servicing.2 The route summary report lists each telephone’s location (by
site, address, and city), the amount of uncollected coins in the individual phone as indicated by
a computerized polling system and any identifiable problems with a phone for which a “trouble
ticket” is issued. The Respondent’s management prepares the summary report a day (or more)
before and, based on the amounts recorded by the computer in the phones’ cash boxes,
determines which phone would be collected on any given day.

After receiving the summary report, the technician is then provided with a ring of keys,
which includes a key for each telephone to be collected that day and a corresponding number of
1 The material time frame included calendar year 2000. It should be noted that the
Respondent’s telephones accept credit or phone cards to complete calls, but this aspect of the
Respondent’s business is not pertinent to the instant case.
2 GC Exh. 2, a photograph, depicts the entrance to the vault; GC Exh. 5 is a copy of a
typical route summary report form for September 18, 2002, for a route covering the San Juan,
Santurce and Aux Mutuo areas of Puerto Rico.

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empty cash boxes which will replace the full boxes taken from the individual phones.3 The keys
to all phones are maintained in the vault on a large peg board that is secured by a lockable
metal cover.4 In practice, the keys, the assembled key ring, and the key to the key ring itself are
kept in the control and possession of the Respondent’s supervisors and individual workers
assigned to the vault room.

At the time the technician receives his keys, he and a supervisor complete a cash box
inventory control form for the day’s collection.5 This form notes the number of keys and empty
cash boxes the technician receives in the morning and the number of full boxes, empty boxes,
and keys he returns with in the afternoon. These amounts are counter-signed by both the
technician and his supervisor in the morning and upon the technician’s return in the afternoon.

When a technician reports to a phone site to collect a phone, he is required to complete
a key log sheet.6 On this form, the technician records the telephone number associated with
each phone, the amount the phone’s internal computer indicates is in the phone’s cash box (the
so-called “bypass” amount), and the serial number of the lock on the cash box to be removed
and the similar number of the lock to be installed on the replacement cash box. The locks on
the cash boxes are not operated by a key. Rather, after engagement, these locks may only be
removed by cutting, which effectively destroys them; they cannot be reused or repaired and are
discarded by the Company.7

At the end of his day, the technician returns the full and locked cash box to the vault
where his supervisor, as noted, records the number of full boxes returned. The technician does
not participate in the actual counting of the amounts in the returned cash boxes; that is left to
the vault room personnel.

The Respondent’s telephones appear to be well made and very sturdy, and are
designed to resist tampering and theft. However, they are not completely theft and vandal
proof. For instance, thieves have been known to stuff the phones’ coin return slot with cloth or
wire so that the coin return mechanism is disabled. The thief will after a time return to the
phone, remove the cloth (or other obstruction) and retrieve the trapped coins. Also, it is
possible for a dishonest technician to rig a phone so that the coins do not register in the phone
and make off with these unaccounted for coins. However, it would appear from the credible
evidence of record that in order to gain access to the cash box or, as opposed to merely
intercepting coins before they drop in the box, one would have to use a key to open the phone
3 See GC Exh. 8, a photograph depicting a key ring and keys to individual telephones. Each
individual key has an identification tag associating it with a given telephone. See GC Exh. 7, a
photograph which depicts a collection of cash boxes of the type installed on the Respondent’s
phones.
4 See GC Exh. 3, a photograph depicting the wall on which the keys are hung. The picture
shows how this wall of keys is protected by a closeable and lockable metal cover.
5 See GC Exh. 4, a representative cash inventory control form for September 16–18, 2002.
Note that the form also records any “test call” money, usually 25 cents provided by the
Respondent to the tech to determine if a phone is operating properly.
6 See GC Exh. 9, a copy of the Respondent’s key log sheet for September 17, 2002. The
technician gains access to the computer by punching in a code—a bypass code—provided by
the Company, which reports the amount of coins in the cash box. All technicians use the same
bypass code on a collection run.
7 See GC Exh. 10, a photograph of a cash box lock intact on a cash box, and also GC Exh.
11, an actual used cash box lock with serial numbers.

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itself to remove the cash box. While the wire lock on the cash box can be easily cut, as a
practical matter one would have to demolish the phone to gain access to the cash box without a
key.8

This is not to say that irregularities in the collection of the Respondent’s phones occur
only because of theft or vandalism. Some irregularities evidently occur through possible
glitches in the computer. In fact, the Company’s experience with collections indicates that
discrepancies in the amounts shown by the computer and the actual collections occur almost
everyday. However, as a matter of policy, the Company only investigates discrepancies (plus or
minus) greater than $10.00.

The three individuals named as discriminatees in the complaint, Oscar Sanchez, Angel
Olivo, and Edwin Lopez, were hired as technicians and performed their duties generally as
outlined above.

The Respondent discharged Sanchez on about July 11, 2002.9 Olivo and Lopez were
first suspended on September 19 for 10 workdays; on October 1, 2002, the Respondent
officially terminated both men.

B. The Substantive Complaint Allegations

1. The July 8, 2002 alleged interrogation of Sanchez;
his July 11, 2002 discharge

The complaint alleges that on or about July 8, 2002, the Respondent’s general manager,
Ralph Ciezar,10 interrogated and threatened employees, including Sanchez, with unspecified
reprisals because they engaged in protected concerted activities. Sanchez’s discharge on July
11 is also alleged to be unlawful. Sanchez testified at the hearing and related his version of
events transpiring on July 8 and 11.

Sanchez stated that he began working for the Respondent as a service technician on
October 19, 1999; his duties included collecting, repairing, and cleaning about 50 pay phones
situated along his assigned route which covered Cantano, Bayamon, Guaynabo, Santurce, and
Los Piedres, Puerto Rico. Sanchez stated that he serviced around 40–50 phones daily. He
said his last day of employment was July 11, 2002, on which date he was notified that he was
discharged. At the time of his discharge, his immediate supervisor was Juan Burgos.11

8 See GC Exh. 13, a photograph of one of the Respondent’s telephones showing a partially
removed cash box. The cash box is protected by a lockable cover. As is observable, the
depicted telephone, like most on the average street corner, is black and made of steel or other
heavy metals.
9 See GC Exh. 21, Sanchez’s termination letter dated July 11, 2002. Sanchez testified that
his last day of work was July 11. Whether his last day was the 11th or 12th is not significant. I
will use the letter’s date as the termination date.
10 The Respondent admits that Ciezar’s duties and responsibilities as its general manager
coincide with the Act’s definitions of supervisor and/or agent under Section 2(11) of the Act.
11 The Respondent admits that Burgos is a supervisor and/or agent within the meaning of
Section 2(11) and (13) of the Act. Sanchez noted that Burgos only supervised him for about a
month.

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Sanchez described the circumstances and events that preceded his discharge.

Sanchez stated that about a month before he was discharged, the Company acquired
another telephone company whose phones had to be converted to the Respondent’s system.
According to Sanchez, the conversion entailed a doubling of the workload for the technicians
because the Company wanted the work accomplished in a very short period. As a
consequence, the management would only reluctantly approve vacations, and then for no more
than 3 days at a time.

Sanchez said that the work conditions were becoming intolerable and led to the
employees discussing them collectively. Sanchez said that the technicians met on two
occasions to discuss work-related issues. According to Sanchez, the first such meeting took
place in June at a liquor store where the workers often gathered to socialize after work.

According to Sanchez, employees Sandro Matos, Ariel Bertram, Juan Burgos, Angel
Olivo, Edwin Lopez, and others whose names he could not recall met at the liquor store and
discussed work conditions and the need to establish their own union or bring in an existing
union to represent them.

Sanchez said that the second meeting took place on July 8, 2002, this time in the
company parking lot in the morning just before the technicians punched in for work. Again,
according to Sanchez, Juan Burgos and fellow technicians Matos, Lopez, Olivo, Michael
Sanchez, Luis Burgos, and he were present. It was Luis Burgos who informed the group that
one of his parents was familiar with unionization and was advising them about what must be
done to secure union representation.

Sanchez said that the group discussed vacations, with the major complaint being that
the Respondent allowed only 3 days’ vacation at a time when they were entitled to more time.12
Sanchez said the technicians also discussed a wage increase that had been promised them if
they had completed the phone conversation before July 4, which they did. However, the raise
had not been granted.

Sanchez said the July 8 meeting ended abruptly because Ciezar came on the scene.

Sanchez stated that after finishing his route that same day, Ciezar called him to his
private office. There, according to Sanchez, Ciezar told him that if he did not like the conditions
of his employment at the Company, he could go to another company or to the local labor
department in Hato Rey (a section of San Juan). The meeting ended with nothing more being
said or discussed.

Sanchez said that the next day (July 9) his supervisor, Juan Burgos, advised him that his
requested vacation for July 20-23 (his birthday) was being suspended. According to Sanchez,
Burgos seemed to be reading from a paper that dealt with the suspension of his vacation.
Sanchez said that he asked Burgos what was happening and Burgos said he (Burgos) did not
have to give him any explanation.

12 Sanchez cited his own example, saying that when he was fired, he had 26 days’ vacation
due him which was acquired over his approximately 33 months with the Respondent. Sanchez
stated that over this period he had been able to take only 6–7 days of vacation. The
Respondent disputes Sanchez on this point.

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Sanchez said that on July 11, he was told that he was discharged and given a letter that
advised him of the decision by the Company to terminate him but did not give any reasons
therefor.13 Sanchez stated that he had not received any discipline from the Company. He
specifically denied being even verbally reprimanded by Ciezar because of a complaint from a
coworker and denied being verbally reprimanded by Carlos Ortiz, the Company’s system
information manager, for low production or discrepancies in collections on his route. Sanchez
further denied that he had “trouble” with Juan Burgos and specifically denied calling him a “son
of a b----” or having any physical confrontations with him. Sanchez stated that he received a
wage increase in December 2001 (and at other times) and was named employee of the month
at that time for which he received direct praise from Ciezar who had approved other raises for
him.

2. The suspension and discharge of Angel Olivo and Edwin Lopez
on September 19 and October 1, 2002

a. Olivo’s suspension and discharge

Olivo testified that he worked as a service technician for the Respondent since June
1999; he was discharged on October 1, 2002. Olivo stated that his direct supervisors during his
tenure with the Company were Juan Burgos, his immediate supervisor, and Carlos Ortiz who
was in charge of the automated and other operations of the Company.14

Olivo said that he was assigned around 300 telephones on a route that covered San
Juan, Santurce, and part of Hato Rey and Carolina; he claimed to have serviced around 30–40
telephones per day.

Directing himself to his last months with the Company, Olivo stated that he was
outspoken about working conditions at the Company and related two informal meetings he
participated in with other technicians where various work-related problems were discussed.
According to Olivo, around the beginning of July 2002, around 4 p.m. after work, he and a
number of technicians met at a store in Carolina.15 According to Olivo, there the employees
discussed vacations, Ciezar’s constant accusations of stealing from the telephones, a promised
but unrealized raise for replacing another acquired company’s telephones, scheduling issues,
and overtime pay which they were never given.

Olivo stated that the primary reason for this meeting was the promised raise, which the
employees felt entitled to because they had timely replaced the phones in question; the other
topics were raised in this context. Olivo stated that the discussions eventually turned to seeking
13 As noted, Sanchez’s letter (GC Exh. 21) notified him of his termination. It does not
provide any reasons; but merely informs him of severance pay due him under Puerto Rico law;
a check for salary up to July 15, 2002, and his vacation pay and Christmas bonus. The letter is
signed by Juan Burgos and Carlos Ortiz.
14 According to Olivo, he was a supervisor of the technicians until December 2001, when
Juan Burgos was promoted and replaced him. Olivo said he viewed this as a justified demotion.
Ortiz was in charge of the computerized system that “polled” the phones to determine the
amount of coins in the machines as well as any problems with them. According to Olivo, the
computers allowed the Company to call every phone in the system, which in turn caused the
creation of the aforementioned route summary reports.
15 Olivo named Edwin Lopez, Juan Burgos, Oscar Sanchez, Luis Burgos, and some others
whose names he could not recall as being present.

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the assistance of a union to represent the technicians because of the problems they were
having on the job.

Olivo also related a second employee meeting that occurred about a week later in the
company parking lot around 5:45 a.m., just before the technicians were to punch in. Olivo
stated that while he could not recall all of the participants by name, but basically all (nine) of the
techs were there.16 According to Olivo, the main point of the meeting was to discuss the raise
they had been promised. Olivo said that he told the group that they needed a union to
represent them before they were all fired by the Company.

Olivo also stated that later that same day, around 3 p.m., Juan Burgos told him he was
to see Ciezar. Olivo said he reported to Ciezar’s office as directed and, in the presence of
Carlos Ortiz, Ciezar first asked him what was happening. Ciezar then told him if he were not
happy with his job or salary that he could go to the Labor Department and seek vacations or a
raise. This meeting lasted about 5–10 minutes.

Olivo related the circumstances leading to his termination. According to Olivo, on
September 18, he was called by Juan Burgos to a meeting with Burgos, Ciezar, and Ortiz
around 3 p.m., after completing his route. According to Olivo, Ciezar told him that there were
two pay phones on his routes that had cash box discrepancies and asked why he (Olivo) had
the keys for these phones. Olivo said he was shown a document17 by Ortiz that indicated that
two telephones were short; that is the computer polling indicated that one phone was short
$19.30 and the other $32.85 and that the phones had been collected on September 16, 2002.

Olivo stated that he told Ciezar and Ortiz that he did not know why the money was
missing. Although he conceded that discrepancies were a fact of daily life for technicians, Olivo
said that he told the two supervisors that there was no way for a technician to take money
undetected from a cash box.18

Olivo explained that he was familiar with the location of the two phones in question as
they were on his route, were “good phones”—generated money rapidly—which he collected
either weekly or every other week. Olivo recalled that on September 16, Burgos, following the
usual procedure, gave him the keys for these two phones, but he (Olivo) had not himself
scheduled them the day before for collection. Olivo, however, could not recall if he himself had
requested that these good money-makers be placed on his list. However, he acknowledged
16 Olivo was able to name Edwin Lopez, Juan Burgos, Ray Rivera, Michael Sanchez, and
Ariel Bertram as participants at the second meeting.
17 See G.C. Exh. 14, which purports to be a Collection Report that included polling data and
coins collected and the differences or discrepancies between the two. Olivo said that he did not
have access to the report and did not use one like it in his daily work. Accordingly, he was
unable to attest to the accuracy of the data contained therein.
18 Recall the cash box lock, which Olivo stated secured the cash box and once opened was
unusable. Olivo noted that vandalism and technical problems in the Respondent’s automated
system often produced discrepancies which could manifest in there being more or less money in
the cash box than that which the computer polling indicated. Olivo also admitted that he had
discrepancies prior to September 18; but when these occurred, a trouble ticket was issued and
the telephone was checked out. Olivo implied that he had never been questioned about prior
discrepancies.

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that the keys to these two phones were put on his ring for the September 16 collections by Juan
Burgos.19

Olivo noted that he was not told at the September 18 meeting that the two phones had
been collected over the past weekend—Saturday, the 14th, and/or Sunday, the 15th—and did
not consider this as a significant point or issue because the Company does not conduct
business on the weekends. According to Olivo, management never informed him of the day the
phones were collected and he only learned of the date after he was fired.20 Olivo was sure that
Ortiz did not mention that the telephones were collected on the weekend; he just mentioned the
variances in the polling data amount and the actual amount in the machine. According to Olivo,
Ciezar never told him he was being suspended for collecting the telephones on the weekend.21

Olivo stated that his suspension was for about 2 weeks or 10 business days and he
returned to work on October 1, 2002; he was called to the main office along with Edwin Lopez.
Olivo said that he and Lopez were given discharge letters by Felip Madera, the company
controller and human resources manager, in the presence of Juan Burgos and Carlos Ortiz.

Olivo recalled that Lopez asked Madera for the results of the investigation that
supposedly had been undertaken. According to Olivo, Madera said that he was not required to
give him any explanation or information.

Olivo stated unequivocally that he took no money from the Respondent’s phones, nor
did he ever tamper with or vandalize them.

b. Edwin Lopez’s suspension and discharge

Lopez testified that he was employed by the Respondent from October 1, 2000, to
September 19, 2002, as a technical service worker whose duties were to maintain, repair, and
collect pay phones located along a designated route; his usual hours were 7 a.m. to 3 p.m. on
Monday through Friday.

Lopez stated that his routes covered the Bayamon area of the island and included about
300 pay telephones; Lopez said he averaged around 30 collections per day but daily had about
40–50 trouble tickets to deal with because Bayamon was a high drug use area and experienced
a substantial amount of tampering and vandalism of the phones. Accordingly, his supervisor,
Juan Burgos, daily would assist him in servicing and collecting the phones on his route.
19 Olivo noted that Burgos, on other occasions, added so-called “good” phones to his
scheduled collections. Olivo seemed to be saying that adding phones that the Company
deemed in need of collection was routine.
20 Olivo initially said that he later learned that the two phones had been collected over the
weekend of September 14–15 from Edwin Lopez who said Ciezar told him about those suspect
collections. Upon examination by the Respondent’s counsel on cross-examination, Olivo later
changed his testimony regarding how he became aware of the collection of the phones over the
weekend in question. Olivo stated that someone other than Ciezar told Lopez of this allegation.
Olivo, I would note, seemed not to understand the question posed to him by the Respondent’s
counsel on this score.
21 Olivo stated that after being advised of his suspension on September 19, he privately
spoke to Ciezar for about 10–15 minutes, mainly asking him why he was being suspended.
According to Olivo, Ciezar said that he was initiating an investigation of the missing money and
if the investigation went okay, Olivo would be returned to work.

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Lopez said that he spoke with his coworkers about terms and conditions of employment
with the Respondent on two occasions around the first week of July 2002. Lopez said the first
meeting occurred at a liquor store (Essuelve Liquor Store) and the other in the company parking
lot.

Regarding the liquor store meeting, Lopez said that around the first week of July, he met
with a number of employees, fellow technicians,22 and discussed a number of work-related
concerns after work. According to Lopez, the employees each discussed their feelings,
arguments, and problems with the Company on topics such as vacation; overtime hours; vehicle
conditions; and uniforms. They also discussed a promised but unfulfilled raise; problems they
had with the Company in meeting their National Guard commitments; and their annual
evaluations which were not current or even being done in some cases.

Regarding the promised pay raises, Lopez stated that Ciezar had promised the
technicians a raise if by a certain time they were able to install and collect new phones
purchased by the Company as a result of the acquisition of another phone company. As to
overtime pay, Lopez said the employees rarely saw this on their paychecks. Lopez stated that
the Respondent required the technicians to put in for vacation 3 months in advance, but when
the time arrived the vacation was not allowed.

At this meeting, Lopez stated that he spoke with one of the participants, Luis Burgos,
whose father-in-law belonged to a union, and asked him to supply him with information about
unions in general and how they could be brought in to represent them. Lopez said that the
techs hoped to coordinate with Luis Burgos so that by the next day they would have information
about unions.

Lopez related what transpired at a second meeting of the techs, this time in the company
parking lot.23 According to Lopez, the night before he had spoken to Luis Burgos who told him
he had contacted a union representative. So, at the meeting, he informed the group that a
union representative was going to be meeting with them and authorization cards were going to
be distributed and picked up; that this was to occur during the week.

Lopez stated that the techs also again discussed the promised salary increase.
Consequently, the techs decided that he (Lopez) and Angel Olivo would arrange to speak with
Ciezar in the afternoon about the promised raise.

Lopez noted that Juan Burgos participated in the meeting and, in fact, stated that he was
going to support them with management, that the techs would have all the backup from him that
he could possibly muster.

Lopez said that later that day he met with Ciezar and explained what happened at this
meeting. According to Lopez, he returned to the Company after completing his route duties
and, per company procedure, was about to deliver the collected money and equipment to the
22 Lopez identified employees Oscar Sanchez, Ariel Bertram, Juan Burgos, Miguel Sandro
(phonetic), Angel Olivo, and Luis Burgos as participants in the group discussion.
23 Lopez thought this meeting took place on July 8, 2002. He identified Juan Burgos, Ray
(last name unknown), Sandro Matos, Ariel Bertram, Oscar Sanchez, Angel Olivo, Daniel (last
name unknown), and Luis Burgos as participants.

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vault and return the company car. However, he was intercepted by Carlos Ortiz who instructed
him merely to lock the car and accompany him to the administrative offices to meet with Ciezar.

When Ciezar arrived, Lopez stated that Ciezar told him he was upset with the group (of
techs) and with him (Lopez); that he did not understand Lopez’s attitude. Ciezar went on to say
that if he (Lopez) were not in agreement with company policy, he could go work for Pan
American (another telephone company); that the Respondent’s doors were open for him on the
day he wanted to leave.

Lopez stated that he told Ciezar that his (Ciezar’s) attitude was based on claims by the
techs relating to money but that the claims were fair for the employees. According to Lopez,
Ciezar told him that he had nothing else to say to him, that he (Lopez) could resign whenever he
wanted and, in fact, told him to leave the Company’s premises. Lopez said that as he was
about to leave, Ciezar told him to watch out and not bring a union in.

Lopez stated that his last day of work at the Company was September 19, 2002. He
related the circumstances leading to his suspension on that day and ultimate termination on
October 1.

On the afternoon of September 18, Lopez said that he was approached by Juan Burgos
who told him to report to Carlos Ortiz. He met with Ortiz and Burgos, who stayed for only a
short time, at Ortiz’s desk in the administrative area.

Ortiz proceeded to accuse him of collecting a telephone on the previous Sunday—the
15th—and that there was $60 missing. According to Lopez, Ortiz said that he suspected that
someone was using an illicit program that allowed him to access the phones—that someone
was using a “clandestine” line to collect the phones. Lopez said that Ortiz asked him if he
(Lopez) had collected the phone on Sunday and he said he had not.

Lopez said that he then asked to speak to Ciezar for an explanation of this clandestine
line allegation, whereupon Ortiz responded to him that Ciezar was listening to the conversation
on the speaker phone. Then all of a sudden, according to Lopez, Ciezar appeared in the office
but said nothing. Ortiz then announced that the conversation had ended, that he had nothing
more to say. Lopez said that he left Ortiz’s office but he observed Ortiz, Ciezar, and Juana
Burgos speaking at Ortiz’s desk as he was leaving. Lopez added that he was never given any
documentation regarding the alleged improper collection of the phones in question.

On September 19, Lopez reported for work at the usual time but was told by Juan
Burgos that he and Olivo were not assigned any work and were going to be suspended. Lopez
said that he and Olivo waited until 7:45 a.m. before going to Burgos to ask what was going on.
According to Lopez, Burgos said that they would find out very soon. Lopez and Olivo then
decided to speak with Felip Madera who was in the administrative office area; Madera directed
them to his office. At around 8 a.m., Juan Burgos was paged to Madera’s office; a meeting with
Olivo and Lopez, along with Madera and Burgos, thereupon took place.

Lopez stated that he and Olivo were given their 10-day suspension letters24 in that
meeting and were told by Ortiz that the Company was going to investigate the missing money
and that management suspected there was an illicit and clandestine polling program involved.
Continued
24 Lopez’s suspension letter is contained in GC Exh. 17. The letter indicates that he was
being suspended because of irregularities in several telephones on his route; and that after an

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_________________________

Lopez said that the suspension was to end on October 1. However, when they reported
for work, he and Olivo were not dispatched to their routes as were the other techs. Lopez said
that he and Olivo waited around 40 minutes and then asked Juan Burgos what was going on,
but received no response. Accordingly, Lopez and Olivo went to Madera’s office, and Lopez
again asked what was going on. According to Lopez, Madera ordered him to get out of his
office, to wait outside. A few minutes later, Juan Burgos was paged to Madera’s office.

Lopez said that he and Olivo considered themselves together in whatever was going on
and decided to go to the conference room where Ortiz, Madera, and Juan Burgos were
gathered. There, the two were each given a dismissal letter.

Lopez said that he asked Ortiz for the results of the promised investigation. However,
Madera responded, saying that he did not have to provide the results because a local law—Law
No. 80—protected the Company and he had no right to any investigation.25 Lopez said that he
disputed Madera’s statement, telling him that there must be a police complaint because if the
money was missing, then surely a robbery (theft) had taken place. According to Lopez, Madera
declared that the meeting was over and that he had nothing more to tell him.

Lopez noted that he was never given any documentation by management regarding the
allegedly missing money or any other irregularities on his route. Ortiz only told him that the
amount in question was $60 and the telephone in question was located at a local mall on his
route; the specific telephone was not identified by Ortiz in any of the meetings with him and
other managers.

The Respondent called Juan Burgos, Carlos Ortiz, and Ralph Ciezar, who provided the
Respondent’s defense to the charges in question.26

Juan Burgos testified that he began working for the Respondent around January 13,
2000, initially as a supervisor of company vehicles and phone card machine maintenance. He
later became a service technician with an assigned route and was promoted to supervisor of the
service technicians in January 2002 by Ciezar,27 the position he currently holds with the
Respondent.

Burgos stated that he supervised Sanchez and Lopez. As to Olivo, Burgos said that at
one time Olivo was a supervisor but was demoted to be his (Burgos’) assistant, working with
him in the vault.28 Burgos said that Olivo and the employee he described as being in charge of
the vault, Carlos Escalara, had access to the vault room.29 Burgos noted, however, that he
(Burgos) was responsible for counting every cash box and every key given to the service
investigation, he would either be reinstated or additional discipline would be imposed.
25 Lopez’s dismissal letter (GC Exh. 18), like Olivo’s, makes a reference to Law No. 80.
However, this law or rule was not explained or elaborated on at the hearing.
26 Madera, an admitted supervisor, did not testify at the hearing. No reason was given by
the Respondent for his nonappearance.
27 I note that Burgos had some difficulty in remembering his dates during questions by the
Respondent’s counsel.
28 Burgos volunteered that Olivo was to him hurt by the demotion and seemed resentful of
him at times, but there never were hard feelings or fights between them. Burgos acknowledged
that in spite of Olivo’s demotion, they enjoyed a good working relationship.
29 Escalara did not testify at the hearing.

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technicians each morning. Burgos stated that Escalara, a vault worker, was responsible for
counting the cash boxes and keys in the afternoon and that Escalara delegated certain
employees, Edwin and Ivan and even the technicians to assist him with his duties.30

Burgos stated that it was not unusual for Escalara and he to add telephone keys to the
ring made up the day before based on the technicians’ identification of phones requiring
collections. According to Burgos, Olivo, as his assistant, also added keys because he was
authorized to work inside the vault31 and pick any of the keys he needed.

Regarding the keys, Burgos confirmed that he had access to the master key that could
open most of the Company’s phones.

Burgos also confirmed that on occasion he socialized with Olivo, Sanchez, and Lopez at
a liquor store. However, Burgos denied that they ever spoke to him about unions and he never
told Ralph Ciezar that the three men were looking to get a union at the Company. Burgos,
however, acknowledged that Lopez complained about his salary at the liquor store and once
while the employees were gathered in the company parking lot. Burgos also acknowledged that
he spoke to Ciezar about Lopez’s complaints regarding his salary.

Burgos stated that he knew Sanchez and was his supervisor. According to Burgos,
Sanchez was a problem employee, one he described as “negative” in that he refused to do
assignments; was argumentative and spoke harshly to him using profanity; and, on one
occasion, almost provoked a physical confrontation with him.32 Burgos said he had to address
Sanchez’s on-the-job behavior on many occasions and that Sanchez’s aggressive tendencies
caused problems sometimes with other workers. Burgos said that he did not report Sanchez’s
behavior to upper management, except perhaps on one occasion indirectly to Ortiz.33 Burgos
also stated that he never gave Sanchez a written reprimand.

Burgos acknowledged that he had heard Sanchez complain about his vacation’s being
cancelled in July 2002 because another tech was called to active duty with the National Guard.
According to Burgos, Sanchez said that he would rather not take his vacation at all if he could
30 No last names of Edwin and Ivan were provided by Burgos.
31 To illustrate the point, Burgos compared Olivo’s route summary report, dated September
16, 2002 (R. Exh. 12), which showed Olivo’s phone collections for September 17, with Olivo’s
key log sheet for September 17, which indicates the telephones he actually collected. Burgos
noted that two phones on the key log sheet—7269332 and 7269054—were not on Olivo's route
summary sheet and were obviously added to the collection’s list but not by him (Burgos),
because he stated he did not give Olivo the keys to the phones on September 17. Burgos
volunteered that these two phones contained very low amounts, $8.50 and $8.25, respectively,
and did not need collection unless they were broken. Burgos also noted that these two phones
were also not on Olivo’s route summary sheet dated September 18, 2002 (GC Exh. 5). Burgos
admitted that with respect to R. Exh. 12, he had not seen the particular document before the
hearing and that Olivo may have been given the document by Ortiz.
32 Burgos related a particular incident involving Sanchez’s behavior that was particularly
upsetting to him and almost led to fisticuffs between the two. However, Burgos said that they
made up with each other.
33 Burgos said that often his unpleasant encounters with Sanchez evidently made him visibly
sad and, on occasion, managers like Ortiz would ask what the matter was about. Burgos said
that he would only say that he had had an argument, not identifying the employee, but had
taken care of the problem.

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not have his requested dates. So Sanchez opted not to take his vacation. Burgos felt that the
Company did not cancel Sanchez’s vacation.

Burgos stated that he did not himself terminate Sanchez but acknowledged that Carlos
Ortiz asked him what he (Burgos) thought about Sanchez whose productivity was lessening,
and his completion of trouble tickets was minimal. Burgos also acknowledged that he was told
by management that Sanchez was going to be discharged but was at no time told exactly why
Sanchez was being terminated.

Burgos said that when Lopez (whom he supervised) was suspended, he was asked to
handle his route by management.

However, according to Burgos, Lopez told him on the day of his suspension that
whatever he (Burgos) might discover on the route, to shut up about it. Burgos said that Lopez
did not elaborate but that he was surprised by Lopez’s request.

Burgos said that after and during Lopez’s suspension, he was working the Bayamon
(Lopez’s) route and checking phones for proper operation which entails putting a quarter in the
phone, noting that in a properly operating phone, the coin should be returned if he does not
make a call; if the quarter does not return, then there is a problem. Burgos said that he opened
a phone that did not return the quarter and discovered that the coin return chute was broken
and that a substantial number of coins—about $25 or $30 worth—that the computer would not
register were jammed in the telephone. Burgos bagged up the coins and returned the chute to
the Company’s warehouse parts clerk who said the chute was broken. Burgos said he showed
the broken part to Ciezar. According to Burgos, he later discovered two other phones on the
Bayamon route that were similarly damaged and rigged to retain the coins.

Burgos opined that the damage to the coin returns could only be accomplished by
someone with keyed access to the phones; vandals could not have done what he considered an
“inside job.” Burgos stated that he brought the damaged parts from all three phones and the
coins he collected back to management, specifically Ciezar, and told him that the affected
phones were on Lopez’s route.34

Burgos noted that after discovering the tampered with phones on Lopez’s route, he
(eureka-like) connected his earlier comments—to shut up about what he might see on the
route—but never told management (Carlos Ortiz or Ralph Ciezar) about Lopez’s comments.
34 The Respondent produced what Burgos said was one of the actual damaged coin chutes
and three photographs of each damaged chute—Respondent’s X, Y, and Z. I made notes on
the exhibits indicating the top of the coin return mechanism and the bottom part with a plastic
part cut out. The photos were of damaged coin chutes, according to Burgos, taken from the
three phones he found tampered with on Lopez’s route. Burgos admitted he did not create any
official documentation regarding the three phones that were tampered with; his reports to
management were verbally delivered. Burgos was able to identify the actual phone and its
location for the part associated with R. Exh. 2. I deemed the actual part to be too bulky for
admission into the record. Burgos could not recall with accuracy or confidence whether the
damaged parts associated with Exhs. X and Y were discovered during Lopez’s 10-day
suspension. Burgos, however, said that he did not discover the phone represented by R. Exh.
Z was tampered with until November 20, 2002, much after Lopez’s discharge. Burger also
admitted that the Respondent does not maintain any inventory of damaged phones or phone
parts.

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Burgos stated that during their time with the Company Lopez and Olivo had no
“irregularities” in the performance of their jobs and that he had no part in any investigation of the
two that may have been instituted by the Company.35

Carlos Ortiz testified that he serves as the Respondent’s manager in charge of general
company operations, including its computerized telephone system and related programs and
employee discipline. Ortiz said he has served in this capacity for over 5 years.

Ortiz explained the circumstances leading to his decision to suspend and later terminate
Olivo and Lopez.

Ortiz said that he regularly monitors the collections of the technicians basically by
comparing their route summary reports and key log sheets with collection reports associated
with the tech and his specific route.36 Ortiz says that he also attempts to verify the accuracy of
the amounts contained in these documents. In the event of a discrepancy of $10 or more—a
cash box discrepancy—he commences an investigation. Ortiz stated that he first checks the
computer system for possible glitches; if no computer-related problem is detected, he issues a
trouble ticket for the technician to determine and fix the problem with the telephone in question.

Ortiz directed himself to his investigation of two phones on Olivo’s route that were
”short,” that is, had less money collected than that which his computerized polling indicated was
deposited.

According to Ortiz, he reviewed the September 17, 2002 collection report pertaining to
Olivo’s route which showed that two specific telephones were $19.30 and $32.85 short. Ortiz
then undertook his investigation to determine the reason for the shortages, first by running a
computer check of each phone utilizing a program that, inter alia, gives accounting by date and
time of all calls made on that phone, the amounts in the cash box, and its last collection.

Ortiz stated that his investigation showed that each of the two Olivo telephones had
been collected on Sunday, September 15, 2002, and contained no money. The computer
indicated that before the “collection,” one phone contained $27.70 and the other $41.50.37 Ortiz
stated that this was not normal because the Company did not conduct business on Sunday.

35 Burgos also stated that he did not participate in any decision to discharge either Lopez or
Olivo but was present when at least Olivo was suspended and knew then that a discrepancy in
the collection of one of Olivo’s phones was the reason therefor. Burgos claimed to have no
knowledge of the specific reason(s) for Olivo’s discharge.
36 See R. Exh. 13, a representative collection report; this specific report is associated with
Olivo for September 16, 2002. The collection report is based on data that the vault room
employee (Escalara) enters into the Company’s computers on the day the cash boxes are
returned by the technician.
37 Ortiz identified R. Exhs. 10 and 11 as the computer generated reports that showed the
date indicating the irregularities in question regarding Olivo’s phones. The phones in question
are identified by telephone number and a specific location on the route, namely an Esso Service
Center and a Super Kleen (laundromat).

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Regarding Lopez, Ortiz stated he discovered a similar cash box discrepancy for one of
the phones on his route. Specifically, Ortiz said that he discovered that again on Sunday,
September 15, between 1:08 a.m. and 8:02 p.m., a Lopez phone was evidently collected and
$49 removed from the cash box.38

Ortiz said that he reported his findings to Ciezar on September 17, explaining to him that
he felt that the Olivo and Lopez phones had been collected on Sunday. Ciezar also reported to
Ciezar that when he printed the route summary reports for Olivo’s route on September 16
(Monday), the two phones in question were not among those to be collected by him.39 Ortiz
said that he examined Olivo’s collection report for September 16 and noted that the two phones
in question had been collected by him that day in the amount of $8.40 and $8.60, respectively.40
The result was a shortage of $19.30 and $32.85, respectively, for each phone. Ortiz said that
he also questioned how Olivo could have gotten the keys to collect these phones from Escalara,
the vault employee, without them having been included on his summary reports.

Ortiz also said he also discovered from Lopez’s collection report for September 17,41 a
similar situation involving the one phone in question on his route, mainly, that $13.95 had been
collected on that date, a low amount, and that this amount reflected a discrepancy or shortage
of $35.30 when compared to the $49.25 reported as having been deposited in the telephone in
question on the previous Sunday, the 15th.

Ortiz stated that Ciezar instructed him to speak to both Olivo and Lopez about the
problem.

Ortiz met with Olivo alone in the afternoon on September 18 in his office and presented
to him his evidence that the phones had been collected on Sunday and that there was a $32
shortage. Ortiz told Olivo that he (Ortiz) would have to investigate the matter, that management
required this.

Ortiz said he also met with Lopez42, also alone, that same afternoon and explained the
situation to him regarding the shortage in question for one of his phones and in likewise said he
would have to investigate the matter further.

Ortiz noted that after Lopez left at around 4 p.m., he (Ortiz) met with Ciezar and they
decided after discussing the matter to suspend Olivo and Lopez because of the seriousness of
the matter. On the next day, the 19th, Ortiz said he spoke to Burgos and instructed him to bring
Olivo and Lopez to him, not to issue them keys or cash boxes for collection until he had spoken
with them.

Ortiz met first with Olivo on the 19th and said that he told Olivo he had a problem with
his phones, and what explanation did he have. According to Ortiz, Olivo said repeatedly that he
did not know anything about the discrepancies. In the end, Ortiz said that he told Olivo he was
38 Ortiz identified R. Exh. 6, a computer generated report for a telephone located on Lopez’s
Bayamon route at Canton Mall that showed evident removal of the money in question.
39 See R. Exh. 12.
40 Ortiz noted that telephones with less than $40 are or should not be collected.
41 See R. Exh. 14, Lopez’s collection report printed by Ortiz on September 17, 2002.
42 Ortiz said that at his meetings with the two, he allowed them to look at the reports he
used on the computer.

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suspended for 10 days and gave him a suspension letter signed by Burgos,43 Olivo’s
supervisor.

After Olivo left, Ortiz then met with Lopez and essentially asked him the same questions
he asked of Olivo. According to Ortiz, Lopez said that he had no answer for the discrepancies
regarding the one telephone on his route, in spite of questioning by Ortiz on the subject.44 Ortiz
then notified Lopez that he was suspended, pending an investigation, and gave him his
suspension letter.

After the meeting with Lopez, Ortiz said that he saw Olivo in Ciezar’s office. Shortly,
Ciezar called him to the office and asked him to explain to Olivo what was the issue and
problem. Ortiz said that he gathered from this conversation that Ciezar had asked Olivo how he
obtained the key to the two phones he collected from Escalara when they were not on his
summary report of phones to be collected that day.

According to Ortiz, Olivo told Ciezar that on his own volition, he had taken the keys
because he thought those phones were in need of collection, that he had said nothing to Burgos
about taking the keys on the 17th.45

Ortiz said that during the 10-day suspension, he racked his brain for an answer to the
shortages but could only conclude that the collections were made on Sunday (the 15th) and the
keys were returned sometime the following Monday. Ortiz concluded that Lopez and Olivo were
the culprits and, after the completion of his investigation of the matter during their 10-day
suspension, decided to terminate them on October 1, and that the discrepancies were the only
reasons they were fired. Ortiz confirmed that Burgos was assigned by him to cover Lopez’s
route in Bayamon46 during his suspension.

Regarding Sanchez, Ortiz admitted that he was responsible for his termination. Ortiz
explained that Sanchez was terminated for a number of reasons. First, he was insubordinate
and disrespectful to Burgos, his supervisor, and once called him (Burgos) an S.O.B. and almost
came to blows with him over a job-related matter. According to Ortiz, Sanchez also had many
cash box discrepancies which he was unable to explain satisfactorily to management.47
According to Ortiz, these were the main two reasons for firing Sanchez. However, Sanchez, in
his view, was a “negative” employees who would not collect phones as required but would give
no reasons for the failure and on another occasion Sanchez threatened a fellow employee who
Sanchez believed was a “snitch” who reported to management. While he gave Sanchez more
than five reprimands from the beginning of calendar 2000 until he was fired in July of that year,
43 Ortiz said the letter date of September 10 reflects a typographical error.
44 Ortiz stated that he queried Lopez specifically on why he collected two phones located
relatively close to each other in Canton Mall with less than $40.00 in the cash box (see R. Exh.
6 and 7) but did not collect two other phones there with $40.30 and $94.40, respectively. See
R. Exhs. 8 and 9. Because Lopez would not give him any responses, Ortiz said he was very
concerned.
45 On rebuttal, Olivo denied that he told Ciezar this. He reaffirmed his position that Burgos
gave him these keys as he had on other occasions when keys were added to his ring.
46 Ortiz did not address any of the damage to and coins collected from phones on Lopez’s
route as claimed by Burgos.
47 Ortiz said that he would speak to Sanchez on various occasions about the cash box
discrepancies and seek an explanation from him. However, Sanchez would merely say there
were no problems.

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Ortiz conceded that none of the reprimands were written. Ortiz also noted that during the last
couple of months prior to his discharge, Sanchez’s production was waning because his
collections were low which he felt reflected Sanchez’s negative attitude toward his duties.48

Regarding union activities or talk about unions, Ortiz denied that he ever participated in
or attended any meetings where anything about unions was mentioned by Olivo or Lopez.
Furthermore, neither Burgos nor Sanchez ever mentioned a union to him and he (Ortiz) never
acted as a translator for any employee who spoke to Ciezar (who spoke no Spanish) about the
subject of unions. Ortiz claimed that he was never present at any meeting with Burgos, Olivo,
or Sanchez while Ciezar was listening on the phone; nor did he ever meet with Lopez while
Ciezar was listening to the conversation on the speaker phone. Ortiz denied being present in
any meeting where Ciezar allegedly threatened Olivo, Sanchez, or Lopez.

Ralph Ciezar, the general manager and top executive of Telefonos Publicos, testified
that he knew the alleged discriminatees, Olivo, Sanchez, and Lopez. Ciezar also acknowledged
that all serious disciplines, including suspensions and discharges, had to be approved by him.
Based on information provided by Ortiz, Ciezar said that he approved the suspensions of Olivo
and Lopez, and ultimately their and Sanchez’s discharge.

Ciezar specifically denied ever having met with Sanchez or Olivo and Lopez to discuss
benefits and other terms and conditions of their employment with the Company. Ciezar also
denied making threats or taking any reprisals against the three because they voiced their
concerns regarding wages, vacations, and the like, saying any testimony to the contrary was
completely false. Ciezar said that he knew of no involvement of the men in union activities.49

Regarding the discharge of Olivo and Lopez, Ciezar said that he read the computer
polling and collection reports provided by Ortiz and undertook some independent investigation
of the discrepancies issue during the period of their suspension. Ciezar explained that during
the suspension period, he contacted the manufacturers of the telephones in question to
determine whether a malfunction in them or their programming could cause a clearing of the
phones’ memory (to show a “zero” balance).50

Contention of the Parties

The General Counsel contends that the Respondent’s service technicians first met
during the first week of July 2002 at a liquor store where they often socialized after work to
discuss terms and conditions of employment at the Company. The participants at this meeting
included the three alleged discriminatees—Olivo, Sanchez, and Lopez—and a number of their
fellow employees, plus their friend and recently promoted supervisor, Juan Burgos. The
General Counsel submits that the meeting and the types of discussions—vacation times,
uniforms, a promised raise, and job evaluations—in spite of any arguments and testimony to the
48 Ortiz stated that he examined Sanchez’s productivity records but did not produce them at
the hearing, claiming that they had been purged from the Company’s records in the normal
course of business.
49 Ciezar conceded that Burgos mentioned to him on a couple of occasions that Lopez
requested a raise for himself, and that ultimately Lopez’s raise was given based on his approval.
Ciezar claimed to have at no time met with Lopez alone to discuss his salary, and did not meet
with Lopez with Ortiz acting as a translator regarding Lopez’s complaints about his salary.
50 Ciezar did not indicate the answer he received from the manufacturers. I assume there
was no malfunction disclosed by his inquiry.

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contrary, to a certainty took place based on the fully corroborated testimony of Sanchez, Lopez,
and Olivo. She also contends that the unionization process was raised and fellow tech Luis
Burgos51 agreed to consult with his former father-in-law about the process.

In likewise, the General Counsel submits that a second meeting of the technicians,
around July 8, 2002, in the company parking lot just before the techs reported for work, also
took place. Again, Lopez, Sanchez, and Olivo, among other named techs and Juan Burgos,
were in attendance. She notes that by this time, Luis Burgos told Lopez (and the group) that he
had contacted a union whose representative would later in the week meet with them to obtain
authorization cards.

The General Counsel contends that because the three—Lopez, Sanchez, and Olivo—
participated in these meetings in a very activist way, they were discharged by the Respondent.
She notes that the Respondent’s hostility to the concerted activism of the three, especially their
support of a union, was fairly immediate and in Sanchez’s case very swift. Sanchez, she
argues was fired within about 2 days of the parking lot meeting, but not before the Respondent
cancelled his scheduled vacation without notice or cause, and was called in by Ciezar and
threatened with an implied loss of his job.

The General Counsel asserts that in likewise, Olivo and Lopez also were individually
called in by Ciezar, and each was told by him that if they did not like the working conditions at
the Company they could leave. Lopez, in addition, was interrogated by Ciezar, who wanted to
know what was happening with the employees. Then, within about 2 months, the Respondent
discharged the two on what the General Counsel contends are pretexts. All in all, the General
Counsel submits that the three technicians were threatened and later suspended and
discharged because they engaged in concerted protected activities in violation of Section
8(a)(1) of the Act.

The Respondent argues that in the case of Sanchez, he was fired for good cause,
mainly his lack of discipline, insubordination, and general poor on-the-job performance. As to
Lopez and Olivo, the Respondent emphasizes that the two were discharged 2 months after
Sanchez and only because an investigation of discrepancies between monies reported and
collected from phones on their routes indicated that the phones had been tampered with by a
person with keys to the phones in question. The Respondent asserts that it rightfully concluded
that the culprits were Olivo and Lopez and discharged them consistent with the Puerto Rico
Wrongful Discharge Act—Law 80—which permits an employer to discharge an employee for
just cause.52 The Respondent argues that it did not discriminate against either Lopez, Sanchez,
or Olivo for engaging in protected activity; that Olivo and Lopez were fired due to “dishonesty,
dubious and unacceptable conduct in dealing with money that did not belong to them.”53
Continued
51 As noted, Luis Burgos did not testify at the hearing. No reason was given for his
nonappearance.
52 Law 90, LPRA §185 et. seq. generally prohibits arbitrary and discriminatory discharges or
layoffs of employees and provides for indemnification where such action is taken without just
cause.
53 The Respondent also argues that Olivo was a supervisor within the meaning of the Act
based on his duties assisting Burgos in the vault room and therefore was not covered by the
Act. However, it should be noted that the Respondent asserts in its brief, at p. 3, asserts “Angel
Olivo Pagan (‘Mr. Olivo’) and Edwin Lopez-Lopez (‘Mr. Lopez’) were also installers/collectors of
public phones with TPPR.” The Respondent does not explain this inconsistency. See also p. 6
of the Respondent’s brief, Statement of Proven Facts, where Olivo’s duties as a tech are briefly

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_________________________

As to the charge that Ciezar unlawfully interrogated and/or threatened the three with
unspecified reprisals because they voiced concerns about vacations, wages, and other terms
and conditions their employment, the Respondent submits that Ciezar credibly denied the
allegations and in fact denied any knowledge that either of the discharged techs were engaged
in union related or other concerted protected activities.

The resolution of the instant charges clearly will depend on determining the credibility
issues. However, it will be helpful to discuss the legal principles applicable to the matter at
hand.

The Applicable Law Regarding 8(a)(1) Violations

Employer interference, restraint, or coercion of employees who exercise their statutory
right to form, join, or assist labor organizations are unlawful under Section 8(a)(1) of the Act.54
The test under Section 8(a)(1) does not turn on the employer’s motive or whether the coercion
succeeded or failed. The test is whether the employer engaged in conduct which it may be
reasonably said tends to interfere with the free exercise of employee rights under the Act.
Gissel Packing Co., 395 U.S. 575 (1969); Almet, Inc., 305 NLRB 626 (1991); American
Freightways Co., 124 NLRB 146, 147 (1959). Thus, it is violative of the Act for the employer or
its supervisor to engage in conduct, including speech, which is specifically intended to impede
or discourage union involvement. F. W. Woolworth Co., 310 NLRB 1197 (1993); Williamhouse
of California, Inc., 317 NLRB 699 (1995). The test of whether a statement or conduct would
reasonably tend to coerce is an objective one, requiring an assessment of all the circumstances
in which the statement is made as the conduct occurs. Electrical Workers Local 6 (San
Francisco Electrical Contractors), 318 NLRB 109 (1995). Rossmore House, 269 NLRB 1166
(1984), enfd. sub nom. Hotel and Restaurant Employees Local 11 v. NLRB, 706 F.2d 1006 (9th
Cir. 1985). Medcare Associates, 330 NLRB 935. Greenfield Die and Manufacturing Corp., 327
NLRB 237 (1998).

It is well settled that an employer’s interrogation of employees concerning their union
activities may be violative of the Act. Hudson Neckwear, Inc., 302 NLRB 93 (1991). Among the
circumstantial factors examined are the background of the interrogation, the nature of the
information sought, the identity of the questioner, and the place and method of interrogation.
Sunnyvale Medical Clinic, 277 NLRB 1217, 1218 (1985).55 The Board has also considered
other factors such as whether the questioning was by an immediate supervisor who worked
closely with the employee, whether it was made in a joking tone, and whether the employee was
an open, active union supporter, Raytheon Co., 279 NLRB 245 (1986); Action Auto Stores, Inc.,
298 NLRB 875 (1990); Dealers Mfg. Corp., 320 947 (1996).
described. However, be that as it may, the record discloses that Olivo was demoted from a
supervisory position with the Respondent in early January 2002 and then became an ordinary
service technician. Sometime in May or June 2002, he was asked by Ciezar to assist Burgos in
the vault room, mainly dispatching techs with cash boxes and keys. He also performed his
normal duties as a technician and covered his route accordingly. I would find and conclude that
he was an employee within the meaning of the Act and that his limited assistance to an admitted
supervisor is not sufficient to make him a supervisor.
54 Sec. 29 U.S.C. §158(a)(1).
55 The Board, however, does not mechanically apply these factors in each case. Rather, it
views these criteria as useful indicia that may serve as a starting point for assessing the totality
of circumstances. Perdue Farms, Inc. v. NLRB, 144 F.3d 830 (D.C. Cir 1998).

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Section 8(a)(1) may also be violated where an employer links terminations of employees
to their union activities. Area Metal Forms, 310 NLRB 397, 400 (1993); and in likewise an
employer may violate the Act by linking promises of improved benefits and wage increases to
the employees’ selection of a particular union. Christopher Street Corp., 286 NLRB 253, 254
(1987).

Finally, while Section 8(a)(1) prohibits certain speech and conduct deemed coercive,
employers are free under Section 8(c) of the Act to express their views, arguments, or opinions
about and regarding unions as long as such expressions are unaccompanied by threats of
reprisals, force, or promise of benefit. NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).

Section 8(a)(1) of the Act also makes it an unfair labor practice for an employer “to
interfere with, restrain, or coerce employees in the exercise of rights guaranteed in Section 7 of
the Act, including the right to engage in concerted activities . . . for the purpose of mutual aid or
protection.” 29 U.S.C. §157. The Board has held that in order to find that activities are
concerted, the employee’s activities must have been “engaged in with or on the authority of
other employees and not solely by and on behalf of the employee himself.” Meyers Industries,
268 NLRB 493, 497 (1984). Under the Meyers analysis, an 8(a)(1) violation will be found if the
employer knew of the concerted nature of the employee’s activity, the concerted activity was
protected under the Act, and the adverse employment action at issue was motivated by the
employee’s protected activity. Id.

In Amelio’s, 301 NLRB 182, the Board stated that in cases where unrepresented
employees have allegedly been subjected to adverse actions by their employer for participation
in protected concerted activities, the following analytical framework is to be employed:

The General Counsel presents a prima facie case that an employer has discharged an
employee in violation of Section 8(a)(1) when the evidence shows that the employee has
engaged in protected concerted activity—that is, the individual acts with or on the
authority of other employees—the employer knew of the concerted nature of the activity,
and the discharge was motivated by the employee’s protected concerted activity. 301
NLRB at 182.

Once the General Counsel meets the burden imposed by this test, the employer
assumes the responsibility of persuading the fact-finder that the adverse action against
the employee would have been issued even in the absence of the protected concerted
activity. Kysor Industrial Corp., 309 NLRB 237 (1992), citing Wright Line, 251 NLRB
1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982),
approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983).56

For an activity to be concerted, there must be a sharing of common interest. NLRB v.
City Disposal Systems, 465 U.S. 822 (1984). There must be a mutual concern upon which the
employees are acting which relates to terms or conditions of employment. The same action or
activity that would be protected when acting in concert with other employees would not be
protected if an employee were to act in an individual capacity. In Meyers Industries (Meyers 1),
the Board defined concerted activity as that, “with or on the authority of other employees,” as
opposed to individual activity which was activity “solely by and on behalf of the employee
56 This analysis is to be applied even in cases where pretext is alleged. Teamsters Local
657 (Texia Productions, Inc.), 342 NLRB No. 59 (July 29, 2004.

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himself.” Meyers Industries, Inc., 291 NLRB 882, 996 (1986) (a/k/a Meyers I). This definition of
concerted activity also “encompasses those circumstances where individual employees seek to
initiate or to induce or to prepare for group action, as well as individual employees bringing truly
group complaints to the attention of management.” Meyers at 888.

In NLRB v. City Disposal Systems, 465 U.S. 822 (1984), the Supreme Court made clear
that the Board need not interpret the Act to give a narrow and literal interpretation of “concerted
activities.” Accordingly, City Disposal made clear that such individual activity must be closely
attenuated to the group action in order to be considered concerted. The Board in Meyers, citing
City Disposal, held that “at some point an individual employee’s actions may become so
remotely related to the activities of fellow employees that it cannot reasonably be said that the
employee is engaged in concerted activity. City Disposal at 833.

It should be noted that some ostensibly concerted activity is not protected by the Act.
Generally, if the employee’s concerted conduct is accompanied by outrageous behavior or
disloyal (to the employer) conduct, the employee may lose his right to reinstatement or other
remedies afforded by the Act. Alto-Shaam, Inc., 307 NLRB 1466 (1992), enfd. 996 F.2d 1219
(7th Cir. 1993), cert. denied 510 U.S. 965 (1993); C-Town, 281 NLRB 458 (1986); Bird
Engineering, 270 NLRB 1415 (1984).

The Alleged Concerted activity

It is beyond cavil in Board law that vacation times, overtime pay, promised wage
increases, uniforms, and job evaluations relate to and are a part of employees’ terms and
conditions of employment and are frequent objectives of organizational and concerted activities.
Discussions among employees about these concerns are necessary to further that goal.
Jeanette Corp. v. NLRB, 532 F.2d 916, 918 (3rd Cir. 1976). Thus, “the activity of [even] a single
employee in enlisting the support of his fellow employees for their mutual aid and protection is
as much ‘concerted activity’ as is ordinary group activity.” Owens–Corning Fiberglas Corp. v.
NLRB, 407, F.2d 1357, 1365 (4th Cir. 1969). Thus, individual action is concerted as long as it is
engaged in with the object of initiating or inducing group action. Cibao Meat Products, 338
NLRB No. 134 (April 11, 2003).

In the instant case, there is little dispute that the three alleged discriminatees—Olivo,
Lopez, and Sanchez—met with a number of their fellow workers on two occasions in late June
or possibly early (the first week of) July at the liquor store and on July 8 in the company parking
lot and discussed concerns about various terms and conditions of their employment with the
Respondent. Furthermore, the employees discussed the possibility and/or desirability of union
representation at both meetings.57 I would find and conclude that the three engaged in
concerted activity, that is, discussing in a group context their respective concerns about
vacations, overtime pay, promised wage increases, uniforms, and job evaluations at the
Respondent’s facility, and that these meetings and the discussions were had for their mutual aid
57 I have credited the testimony of Olivo, Lopez, and Sanchez regarding the occurrence of
these meetings and the topics of discussion among the employees. I found the three highly
credible in their respective testimony in that they were straightforward, consistent, and
forthcoming in their responses to questions from not only the General Counsel but also the
Respondent’s counsel. Moreover, the Respondent does not seriously dispute that the meetings
took place. The Respondent asserts that it had no knowledge of their occurrence.

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and protection.58 Hence, I would find and conclude that the three discharged employees were
engaged in protected concerted activity.

The Respondent’s Knowledge and Animus

A central issue in this matter is whether the Respondent’s upper level managers were
aware of the discharged employees’ activities and their expressed concerns about their working
conditions. Notably, Ciezar and Ortiz insisted that they knew nothing of the matter. However, it
would be my finding and conclusion that Ciezar and Ortiz were made aware of the employees’
concerns at least on July 8, and the source of that knowledge in my view was Juan Burgos, the
technicians’ supervisor. My reasons are as follows:

First, while Burgos denied telling his supervisors about what had transpired at the liquor
store gathering and the July 8 parking lot meeting, his denials did not have the ring of truth as I
heard him testify. He was clearly hesitant and seemed nervous in his denial. He seemed to be
overly protective of the Company. On the other hand, based on the credible testimony offered
by Sanchez, Lopez and Olivo, Burgos was certainly in attendance at both meetings and
evidently, based on his (Burgos) own testimony, socialized with the techs regularly.
Additionally, on July 8, the three testified that when Ciezar showed up for work, the techs with
Burgos in attendance quickly dispersed. It seems likely based on later events that Ciezar’s
suspicions were aroused and, in all likelihood, he called Burgos into find out what was afoot.59
Not surprisingly, based on Burgos’ revelations, Ciezar, before the day had ended, called
Sanchez, Lopez, and Olivo in for individual meetings whereat the issue of working conditions
and their satisfaction with the Company was broached by Ciezar.

My belief that in all likelihood Burgos told Ciezar about the techs’ concerns about their
working conditions and their plans to seek the assistance of a union is buttressed by Burgos’
evident antipathy for Sanchez, whom he testified was insubordinate and disrespectful to him. It
is more than mere coincidence in that light that Ciezar called Sanchez in first on July 8 and
broached the issue of working conditions with him and then, a mere 3 days later, Sanchez was
terminated.

In agreement with the General Counsel, I would find and conclude that the Respondent
gained knowledge of what had transpired at the July 8 parking lot meeting most likely and
plausibly by and through its supervisor, Juan Burgos.

Turning to the individual meetings Sanchez, Lopez, and Olivo said they had with Ciezar
on July 8, while Ciezar denies they occurred, I do not credit his denial. The three discharged
technicians each testified credibly with clarity and elaboration about their respective encounters
with Ciezar, who essentially told each man that if he did not like the working conditions at the
Company—the subjects of the parking lot meeting—he could leave the Company or report the
matter to the local department of labor.

58 Even if, as the Respondent contends, Lopez may have discussed his concerns about his
own raise at some point in his employment, this does not negate the collective nature of his
activities.
59 It should be noted that Ciezar testified that he spoke with Burgos daily. Burgos was his
eyes and ears with regard to the techs.

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I would find and conclude that Ciezar unlawfully interrogated and/or threatened the three
in individual meetings with him. In Sanchez’s case, I would find that he was unlawfully
threatened with an implied loss of his job if he did not like working conditions at the Company.
Lopez was interrogated indirectly when Ciezar expressed how upset he was with the techs and
Lopez personally, and invited him to work for another company if he did not like the working
conditions at the Respondent’s facility; and Lopez was threatened with an unspecific reprisal by
Ciezar who told him to watch out and not bring a union in.

As to Olivo, I would find that he was unlawfully interrogated and threatened when in the
aftermath of Ciezar’s knowledge of the parking lot meeting he asked Olivo what was happening
and told Olivo that if he were dissatisfied with the working conditions, he could go to the local
labor department and seek vacations and a raise.

I note that given the circumstances of these employees’ encounters with Ciezar, his
statements were patently coercive and intended to chill the three known activists in the exercise
of their statutory rights. First, each man had that same day met with fellow workers and
expressed their concerns collectively about working conditions at the Company. Ciezar, the top
official at the Respondent, evidently having determined (probably through Burgos) that the three
were ringleaders, called each individual man to the administrative offices and made the
statements each attributed to him. Because each man was treated almost identically, the
suggestion of a plan to intimidate and coerce not only the three but also all of the techs
emerges. I note that the Respondent had a fairly small work force and the words of Ciezar’s
actions probably and reasonably got out. That Sanchez was fired a few days later probably
made the intimidation complete. I would find and conclude that Ciezar’s statements to Sanchez,
Lopez, and Olivo constituted unlawful threats and interrogations, all in violation of Section
8(a)(1) of the Act.

Directing myself to the discharges of the three, the Respondent essentially argues that
each man was terminated for legitimate reasons unrelated to their having engaged in protected
concerted activity.

Regarding Sanchez, the Respondent asserts that he was historically a low producing,
disrespectful, and insubordinate employee who had numerous verbal reprimands relating to his
performance as a technician. It was for these reasons that the Respondent says he was
terminated, not his having engaged in protected activities of which it was unaware. The General
Counsel contends that the reasons are simply pretexts for discharging Sanchez. I would agree
with the General Counsel. Notably, while the Respondent claims that he was essentially a poor
employee, they produced no documentation of what I view as serious misconduct. Cursing
one’s supervisor, refusing to perform assignments, and other inappropriate conduct as testified
to by the Respondent’s managers seemingly would merit a written reprimand, a suspension if
not termination. However, all of this was tolerated for reasons not clear. Burgos stated he was
upset with Sanchez’s behavior, most particularly his disrespectful conduct, but aside from a long
face never really complained of his conduct to management.60

60 Sanchez disputed management’s accusations against him, stating that he had never been
verbally reprimanded, let alone written up for his job performance or attitude. He stated he
received all of his raises and once was made an employee of the month and given a raise for
the award by Ciezar.

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However, as noted, Sanchez was terminated within 3—perhaps 4—days of the
Respondent’s discovery that he was involved in the meeting with the techs. Notably, his
termination letter does not give any reason for his discharge, nor was there any evidence of his
running afoul of management in the days or even weeks preceding his discharge. The only
event of significance in my view was Sanchez’s involvement in a meeting with his fellow workers
who were unhappy with working conditions at the Company. I believe his discharge by the
Respondent was based on that knowledge

Thus, the timing of his discharge, along with the Respondent’s undocumented assault
against Sanchez’s on-the-job performance, as well as the animus against him and his activity
exhibited by Respondent’s chief manager’s unlawful interrogation of and threat to him,
convinces me, in agreement with the General Counsel, that the reasons for his discharge
asserted by the Company were pretextual. I would find a violation of the Act regarding
Sanchez’s discharge.

Olivo and Lopez were both fired for basically the same reasons—so called “irregularities”
in the collection of telephones on their respective routes. Not to put too fine a point on the
matter, they were basically fired for stealing by the Respondent.

It is or should be obvious to all that stealing from one’s employer is a dischargeable
offense. Here, the Respondent’s managers discovered irregularities in the collection data for
phones on both Olivo’s and Lopez’s routes. The documents adduced at the hearing by the
Respondent clearly establish that the phones were “short” and that they may have been
collected on Sunday, a nonwork day, by someone who had keyed or computer access to the
phones and the cash boxes.

While shortages and even surpluses are seemingly a regular event in the Company’s
collections of its phones, the Respondent only responds to irregularities in the amount of $10 or
more dollars, plus or minus. The shortages attributed to Lopez and Olivo certainly exceeded
the standards. The Respondent’s manager, Ortiz, credibly explained his calling the two on the
carpet as it were, to inquire about the shortages. While one could argue that his decision to
suspend them pending an investigation was rather extreme, I cannot substitute my judgment for
his in view of what he viewed as an unexplained, possible theft of company property. Given
this, I do not agree with the General Counsel that the suspensions were sufficiently motivated
by the Respondent’s knowledge of Lopez’s and Olivo’s having engaged in protected activity in
July. I would find and conclude that the Respondent has met its burden, at least with respect to
Lopez's and Olivo’s suspension, to show that this action was not motivated by their having
engaged in protected activity and, in any case, the Respondent would have suspended them
pending an investigation irrespective of their having engaged in concerted protected conduct.

However, the discharge of the two presents a different matter in my mind. As noted,
Ortiz confirmed that he told both men that the Company would investigate the matter of the
shortages and pending the results, they would either be reinstated or disciplined, the
Respondent’s suspension letters state as much.

My research has not revealed that the Board has not enunciated any specific rules or
criteria for what would constitute an employer’s adequate investigation of purportedly wrongful
acts or behavior of its employees where concerted activity is involved. However, the Board has
held that an inference of animus and discriminatory motivation may be warranted under all the
circumstances of a case, including the employer’s failure to investigate adequately the alleged
misconduct leading to the discipline or discharge. 6 West Limited Corp., 330 NLRB 527 (2000);
Visador Co., 303 NLRB 1039 (1991).

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Here, the issue for me is whether Olivo and Lopez received what may be described as
an adequate good-faith investigation of the missing money by the Respondent, untainted by
what I have determined to be its knowledge of their having engaged in protected activities and
my finding of its animus against those activities.

I would conclude they did not. I note that Ortiz, the manager charged with “investigating”
the shortage, acted first on his strongly held assumption that the two took the money on Sunday
or in the intervening days when he discovered the irregularities. Ortiz, admitting that other
employees had access to the keys to the phone, nonetheless did not make inquiry of them.
Thus, Burgos and Escalara, for example, a supervisor and the vault assistant, respectively,
were given a pass on the suspected theft even though Ortiz thought the thefts were possibly the
work of insiders. This at the least is discriminatory. Additionally, it seems that if one were
honestly investigating a theft of company property accomplished by a technician’s possibly
utilizing what Ortiz felt was some surreptitious or clandestine technical process, that is,
someone hacking into the company computers, common sense would dictate a query of all
persons who could theoretically accomplish the theft. In my view, an honest and basic
investigation would include an interview with all the techs. Perhaps an examination of phone
collections records of the techs would disclose Saturday or Sunday collections on their routes
and other shortages and irregularities, which would tend to exculpate Olivo and Lopez.

There were only about nine technicians in the Respondent’s employ. So this would not
have been a particularly arduous task for Ortiz, who claimed to be racking his brain for a
solution to the problem. Incredibly, in spite of a potential for system-wide intrusion into the
system, he focused his attentions exclusively on Lopez and Olivo whom he promised a
legitimate investigation of the matter. In the end, both men were shown the door without any
word of explication. I believe that any employee accused of theft, a serious and often
disqualifying charge for future employment where money handling is involved, deserves
something more, especially where the two here denied adamantly that they had committed the
theft and had no previous reports of irregularities in their collections.

But for purposes of the Act, employees, in my view, deserve quite a bit more from a
promised investigation where they have engaged in protected activities and received a hostile
response from an employer for their activities. Here, I believe that the Respondent’s
investigation, such as it was, was inadequate by design and had a preordained conclusion, that
is, that Lopez and Olivo were to be deemed guilty of theft and were going to be terminated.

I would find and conclude that their termination was motivated by their having engaged
in protected concerted activity on July 8 and that the supposed investigation of them for theft
was simply a cover or subterfuge—a pretext—for the Respondent’s delayed and hostile
response to their having engaged in protected activities. In my view, Olivo and Lopez were
unlawfully terminated.61

61 Hewlett Packard Co., 341 NLRB No. 62 (March 29, 2004), where the Board recently held
that the employer’s failure to conduct a full and fair investigation into the employee’s alleged
misconduct constituted evidence of discriminatory intent. At fn. 2.

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Conclusions of Law

1. The Respondent is an employer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.

By interrogating and threatening its employees with unspecified reprisals because they
had engaged in concerted protected activities and other activities for their mutual aid or
protection, the Respondent has violated and is violating Section 8(a)(1) of the Act.

3. By discharging Oscar Sanchez, Edwin Lopez, and Angel Olivo because they
engaged in activities for their mutual aid and protection, mainly meeting and discussing among
themselves and other employees mutual concerns such as wages, vacations, and other terms
and conditions of employment at the Respondent’s facility, the Respondent has violated and is
violating Section 8(a)(1) of the Act.

4. The aforementioned unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the Act.

The Remedy

Having found that the Respondent has violated Section 8(a)(1) of the Act, I shall
recommend that it be required to cease and desist therefrom and from engaging in like or
related unlawful conduct, and to take certain affirmative action designed to effectuate the
policies of the Act.

Having found that the Respondent discriminatorily terminated Oscar Sanchez, Edwin
Lopez, and Angel Olivo, I recommend that the Respondent be ordered to offer them immediate
and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or other rights and privileges previously
enjoyed, and make them whole for any loss of earnings and benefits they may have suffered
from the time of their discharge to the date of the Respondent’s offer of reinstatement. I shall
further recommend that the Respondent be ordered to expunge from its records any reference
to their unlawful termination, to give them written notice of such expunction, and to inform them
that its unlawful conduct will not be used as a basis for future personnel actions against them.
Backpay shall be computed in accordance with the formula approved in F. W. Woolworth Co.,
90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB
1173 (1987).

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended62

ORDER

The Respondent, Telefonos Publicos De Puerto Rico, Inc., its officers, agents,
successors, and assigns, shall

62 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.

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1. Cease and desist from

(a) Discharging employees, or in any other manner discriminating against them with
regard to their hire or tenure of employment or any term or condition of employment, because
they engage in protected concerted activity by meeting and discussing with their fellow
employees mutual concerns such as wages, vacation, overtime, evaluations, or other terms and
conditions of employment.

(b) Interrogating and threatening employees with unspecified reprisals because they
engage in concerted protected activities.

(c) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) Within 14 days from the date of this Order, offer Oscar Sanchez, Edwin Lopez,
and Angelo Olivo full reinstatement to their former jobs or, if such jobs no longer exist, to
substantially equivalent positions, without prejudice to their seniority or any other rights or
privileges previously enjoyed, and make them whole for losses they suffered by reason of the
discrimination against them as set forth in the remedy section of this Decision.

(b) Within 14 days from the date of this Order, remove from its files any reference to
the unlawful discharges of Oscar Sanchez, Edwin Lopez, and Angel Olivo, and within 3 days
thereafter notify them in writing that this has been done and that it will not use the discharges
against them in any way.

(c) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.

(d) Within 14 days after service by the Region, post at its Carolina, Puerto Rico facility
copies of the attached Notice marked “Appendix.”63 Copies of the Notice, on forms provided by
the Regional Director for Region 24, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places, including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the Respondent at any time since
July 8, 2002.

63 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

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(e) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.

Dated, Washington, D.C. August 18, 2004

__________________________
Earl E. Shamwell Jr.
Administrative Law Judge

JD–79–04
Carolina, PR

APPENDIX

NOTICE TO EMPLOYEES

Posted by Order of the
National Labor Relations Board
An Agency of the United States Government

The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain on your behalf with your employer
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities

WE WILL NOT discharge employees, or in any other manner discriminate against them with
regard to their hire or tenure of employment or any term or condition of employment, because
they engage in protected concerted activity by meeting and discussing various mutual concerns
such as wages, vacation, and other terms and conditions of employment.

WE WILL NOT interrogate or threaten our employees with unspecified reprisals because they
engage in concerted protected activities, including meeting and discussing among themselves
wages, vacations, and other terms and conditions of employment.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them by Section 7 of the Act.

WE WILL within 14 days from the date of this Order, offer Oscar Sanchez, Edwin Lopez, and
Angelo Olivo full reinstatement to their former jobs or, if such jobs no longer exist, to
substantially equivalent positions, without prejudice to their seniority or any other rights or
privileges previously enjoyed, and make them whole for losses they suffered by reason of the
discrimination against them, less any net interim earnings, plus interest.

WE WILL within 14 days from the date of this Order, remove from our files any reference to the
unlawful discharges of Oscar Sanchez, Edwin Lopez, and Angel Olivo, and within 3 days
thereafter notify them in writing that this has been done and that we will not use the discharges
against them in any way.

TELEFONOS PUBLICOS DE PUERTO RICO, INC.
(Employer)

Dated By
(Representative) (Title)

JD–79–04
Carolina, PR
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
525 F. D. Roosevelt Avenue, La Torre de Plaza, Suite 1002, San Juan, PR 00918-1002
(787) 766-5347, Hours: 8:30 a.m. to 5 p.m.

THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (787) 766-5377.