Call, Burnup and Sims, Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1966

159 N.L.R.B. 1661 (N.L.R.B. 1966)

CALL, BURNUP, AND SIMS, INC. 1661
Call, Burnup, and Sims, Inc . and Union Obreros Cemento
Mezclado . Case 24-CA-2131. June 28,1966
DECISION AND ORDER
On April 15, 1966, Trial Examiner Jerry B. Stone issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Examin-
er's Decision. Thereafter, the Respondent and the General Counsel
filed exceptions to the Trial Examiner's Decision, and the Respondent
filed a brief in support of its exceptions.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
. The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the entire
record in this case, including the Trial Examiner's Decision, the
exceptions, and the Respondent's brief, and hereby adopts the Trial
Examiner's findings, conclusions, and recommendations, except to the
extent modified.
,The statutory obligation imposed on the Respondent, to bargain in
good faith required the Respondent, inter alia, to make itself avail-
able for collective bargaining, to approach negotiations "in a spirit of
amity and cooperation," 1 and to exert every reasonable effort to make
an agreement. In affirming the Trial Examiner's finding that
Respondent violated Section 8(a) (5) and (1) of the Act, we rely on
the totality of the circumstances, which in our opinion reveals an
overall course of conduct evidencing Respondent's rejection of these
well established principles. Thus, the background evidence relating
to Respondent's December 1964 and January 1965 conduct, as set
forth in detail in the Trial Examiner's Decision, plainly discloses
Respondent's intention to forestall or defeat the collective-bargaining
process. Additionally, and as set forth more fully below, the conduct
of Plant Manager Rey in early' April 1965, following certification of
the Union, points up Respondent's disposition to delay resolution of
differences concerning terms and conditions of employment through
the collective-bargaining representative. Finally, Respondent's fail-
ure to show at least the same spirit of accommodation in solving the
language problem as it does in solving communication problems
1 N.L.R.B. v. Reed & Prince Manufacturing Company, 118 F.2d 874, 885 (C.A. 1).
159 NLRB No. 144.
1662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
involving work instructions discloses an unwillingness on its part to
approach bargaining with the requisite good faith.
We would date the Respondent's refusal to bargain from the inci-
dent "in early April 1965" when the Respondent, by its agent Ray,
threatened its employees that it would not recognize or deal with the
certified Union or its delegate or steward in the absence of a con-
tract. This incident appears to have occurred before April S. Such
conduct is violative of both Section 8(a) (1), as was alleged and as
the Trial Examiner found, and Section 8(a) (5) of the Act, as we
find. Thus, from early April on-for more than 4 months-the
Respondent not only refused to deal with the certified representative
of employees on day-to-day problems without a contract, but did
nothing to contribute to the solution of the threshold problem of
arriving at a contract : language. This course of action demonstrates
to us a purpose to forestall bargaining with the Union for as long as
possible. Meanwhile the Union at its own expense supplied an intel-
ligible English version of the contract it had proposed-as requested
by the Respondent and thereafter ignored by it except to acknowl-
edge receipt-and finally offered to pay half the cost of an interpreter
for contract discussion. This suggestion the Respondent denied out
of hand.
In the circumstances of this case we agree with the Trial Examiner
that the Respondent should make itself available for negotiating
meetings at reasonable times and otherwise attempt to solve language
or other problems relating to commencement of negotiations in, a
spirit of good faith.
[The Board adopted the Trial Examiner's Recommended Order.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on July 30, 1965, and an amended charge filed on October 5,
1965, by Union Obreros Cemento Mezclado (herein sometimes called the Charging
Party or Union), the General Counsel of the National Labor Relations Board, by
the Regional Director of Region 24 (Santurce, Puerto Rico), issued a complaint
dated October 19, 1965, against Russell J. Burnup and Riley V. Sims, d/b/a Con-
crete Pumping Service alleging violations of Section 8(a)(1), (3 ), and (5) of the
Act. Counsel for Call, Burnup and Sims, Inc., filed an answer in the proceeding on
November 2, 1965. The aforesaid answer admitted some of the facts, denied other
facts, and denied the commission of unfair labor practices. Counsel for Call,
Burnup, and Sims , Inc., also made several motions prior to the hearing that the
complaint be dismissed. Trial Examiner Thomas N. Kessel ruled upon the afore-
said motions, denying the same.'
1I officially note from the Board 's official records that Thomas N. Kessel was the duly
designated Trial Examiner to conduct the hearing in this matter at all pertinent times
relating to his rulings and orders in this matter (on November 8 and 16 and December 1,
1965).
CALL, BURNUP, AND SIMS, INC. 1663
Pursuant to appropriate notice, a hearing was held before Trial Examiner Jerry
B Stone at Santurce, Puerto Rico, on December 13, 14, and 15, 1965.2 All parties
were represented at the hearing, participated therein, and were afforded the right to
present evidence, to examine and cross-examine witnesses, to offer oral argument,
and to file briefs. The General Counsel and the Respondent filed briefs and they
have been considered.
At the beginning of the hearing in this matter Respondent counsel moved for dis-
qualification of Jerry B. Stone as Trial Examiner on the alleged grounds that since
Trial Examiner Kessel had ruled on certain motions it was improper procedure for
another Trial Examiner to conduct the hearing.
As Respondent counsel pointed out at the hearing and in his brief, the National
Labor Relations Board's Rules and Regulations 3 provide in Section 102.25 that
"The trial examiner designated to conduct the hearing shall rule upon all motions
(except as provided in sections 102.16, 102.22, 102.29, and 102.47). The trial
examiner may, before the hearing, rule on motions filed prior to the hearing, and
shall cause copies of his ruling to be served on all the parties." 4 The National
Labor Relations Board's Rules and Regulations, however, also provides in section
102.34 that "At any time a trial examiner may be designated to take the place of
the trial examiner previously designated to conduct the hearing."
As to construction of the Board's rules, it is noted that the Board's Rules and
Regulations provide in Section 102.121 that "The rules and regulations in this part
shall be liberally construed to effectuate the purpose and provisions of the act."
Construing the rules accordingly, it is clear then that Trial Examiner Kessel had
authority as the designated Trial Examiner to conduct the hearing to rule on the
motions he ruled on. It is also clear from the rules as a whole that there was
authority to designate Trial Examiner Stone in place and stead of Trial Examiner
Kessel to conduct the hearing. Respondent's motion for disqualification of Trial
Examiner Stone was denied at the hearing. Having again considered Respondent's
argument in briefs, I find no reason to reverse said ruling.
At the hearing Respondent's counsel substantially reiterated his prehearing
motion to dismiss the complaint on the grounds of (1) misidentity of the Respond-
ent and (2) failure to allege a violation of the Act.
As revealed by a composite of credited testimony, stipulation, and official notice
of the Representation of Proceeding in Case 24-RC-2577,5 the facts are clear that
the incorrect appellation of the Respondent in the complaint and certain charges in
this proceeding was substantially attributable to acts of agents of the Respondent.
The facts reveal that (1) the Union filed a representation petition (to resolve the
question of representation) in Case 24-RC-2577, (2) Respondent was represented
at a hearing around January 14, 1965, in Case 24-RC-2577 by an attorney (Mar-
rero) and had present its Manager Armando Rey (of its Concrete Pumping Service
Station), (3) Respondent on January 14, 1965, by Armando Rey, entered into a
consent election agreement with the employer's name appearing thereon as "Russell
J. Burnup and Riley V. Sims d/b/a Concrete Pumping Service," (4) the Union
was duly certified as the exclusive bargaining representative of employees in the
appropriate bargaining unit (of Russell J. Burnup and Riley V. Sims, d/b/a Con-
crete Pumping Service), (5) prior to January 29, 1965, the Union filed an unfair
labor practice charge against Call, Burnup and Sims, Inc., (6) that the aforemen-
tioned unfair labor practice charge was disposed of by a settlement agreement in
March 1965, and (7) the aforementioned settlement agreement contained a written
agreement as follows: "All parties hereto agree that the charge be, and hereby is,
amended to state that the name of the employer is Russell J. Burnup and Riley V.
Sims, doing business as Concrete Pumping Service, and Call, Burnup and Sims,
Inc."
2I officially note from the Board's official records that Jerry B Stone was duly desig-
nated to serve as Trial Examiner instead of Thomas N. Kessel to conduct the hearing in
this matter, and was on December 13, 1965, and has been at all subsequent time the duly
designated Trial Examiner in this case
3 Series 8, as amended, revised January 1, 1965.
* The type of motions involved in this proceeding and issue are not motions provided for
in Section 102.16, 102.22, and 102.29.
5 Involving the Union and Respondent as parties.
1664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As stated by Respondent's counsel at the hearing, there is no question that
Respondent was present and participated in the Representation and unfair labor prac-
tice cases as indicated above. The parties at the hearing in this matter stipulated
that all documents in the instant proceeding, in the representation proceeding (24-
RC-2577), and in the settled unfair labor practice proceeding (24-CA-2037) all be
deemed amended tinnc pio tunc so as to show the correct name of the Company as
being Call, Burnup and Sims, Inc.
The Respondent appears to contend that the rulings by Trial Examiner Kessel
prior to the hearing, when considered in context with the conducting of the hearing
involved by Trial Examiner Stone, constituted "prejudical error." As indicated
previously in the discussion of the Board's Rules and Regulations, Trial Examiners
Kessel and Stone both were duly authorized to perform their functions herein.
Thus, there is no merit to Respondent's contentions.
The Respondent in captions in his brief indicates argument that Trial Examiner
Kessel's ruling prejudiced the Respondent. The Respondent otherwise did not pre-
sent argument on this point of contention. At most, considering Respondent's
involvement in the "name" problem, an argument that Respondent was prejudiced
by Trial Examiner Kessel is tenuous in nature.
Trial Examiner Kessel 's ruling reveals that he found the motions and arguments
thereto to raise factual issues that should be resolved at the hearing. The facts
adduced or stipulated to at the hearing clearly support this ruling. It has long been
recognized that procedural questions of this nature are primarily questions of fact
for the trier of fact to determine what justice requires in the particular situation.6
The facts clearly reveal (1) Respondent's involvement in procedural matters lead-
ing to the use of the incorrect appellation and (2) that Respondent knew that it
was being charged with unfair labor practices and had full opportunity to defend
itself. Surely the correction of minor errors of this nature is a proper function of
amendments. "Misnomer" of corporate name is not fatal and the trier of fact may
allow an amendment as justice requires. Considering all the foregoing, I find no
reason to distuib rulings, made either before or at the hearing, denying Respond-
ent's motions to dismiss.7
Respondent's other motion to dismiss was on the ground that the complaint did
not plead facts that constituted a violation of the Act(8(a)(1), (3), and (5).
Suffice it to say that the complaint allegations as a whole are sufficient to apprise
the Respondent that it was charged with violations of Section 8(a)(1), (3), and
(5) of the Act. As indicated by the ultimate disposition of this case, there is no
merit to Respondent's motion to dismiss for the foregoing reason.
The Respondent also moved to dismiss the complaint on the basis that the
National Labor Relations Act, as amended, had no application to the Common-
wealth of Puerto Rico. The Board has ruled adversely to Respondent's position on
this point.8 Accordingly there is no merit to Respondent's motion, and the ruling
denying such motion is reiterated herein.
Essentially, the issues involved herein concern whether Respondent has violated
Section 8(a)(5) and (1) of the Act by refusing to bargain collectively with the
Union. There are subsidiary issues relating to language to be used in negotiations
and to threats relating to refusal to recognize or deal with the Union or its repre-
sentatives. Other issues touch on the question as to whether a strike was caused by
Respondent's conduct as alleged above and thereby constituted an unfair labor prac-
tice strike, and as to the effect of certain conduct engaged in by strikers as to poten-
tial right of reinstatement or remedial action.
Upon the entire record in this case and from my observation of the witnesses, the
following findings of fact, conclusions of law, and recommendations are made.9
6 See Bourget v. New England Telephone and Telegraph Company, 84 A 2d 830, 97 New
Hampshire 193.
7 See N L R B v. East Texas Steel Casting Co , 33 LRR\I 2793 and cases cited in footnote
above Cf also the Decision of the Supreme Court of the United States in N L.R.B v. Mat-
tison Machine Works, 365 U S 123.
9 Xavier Zequesra, 102 NLRB 874
9 All credibility resolutions made herein are based on a composite evaluation of the
demeanor of the witnesses and the probabilities of the evidence as a whole. Counsel for
all parties exhibited a commendable attitude in their attempts to narrow the issues in-
volved in this proceeding.
CALL, BURNUP, AND SIMS, INC.
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER INVOLVED
1665
The facts pertaining to the business of the Employer are based upon the pleadings
(as amended) and stipulations of the parties.
Call, Burnup, and Sims, Inc. (the Respondent), is a Puerto Rican corporation
engaged in Puerto Rico in the business of construction, communications, installa-
tions, and concrete pumping. During the 12-month period ending December 13,
1965, Call, Burnup, and Sims, Inc., in the course and conduct of its business, pur-
chased and received from points outside Puerto Rico goods and materials valued in
excess of $50,000. During the same period of time Call, Burnup, and Sims, Inc.
provided concrete pumping services to contractors and other persons in commerce
or in an industry affecting commerce valued in excess of $50,000.
Based upon the foregoing, it is concluded and found that the Respondent is
now, and has been at all times material herein, an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The facts pertaining to the labor organization involved are based upon the plead-
ings and admissions of Respondent's counsel at the hearing.
Union Obreros Cemento Mezclado (the Union) is now, and has been at all times
material herein, a labor organization within the meaning of Section 2(5) of the Act.
It is so concluded and found.
III. THE UNFAIR LABOR PRACTICES
A. Issues
As indicated previously, the issues herein concern (1) whether Respondent has
refused to bargain with the Union in violation of Section 8(a)(5) and (1), (2)
whether Respondent threatened employees that it would not deal with the Union
or its delegates, (3) whether or not a strike was an unfair labor practice strike and
(4) the effect of conduct of some of the strikers on potential right of reinstatement
or remedial action. A factual question concerns the parties divergent viewpoint and
conduct relating to the use of Spanish or English in negotiations.
B. Preliminary issues
The facts pertaining to the preliminary issues herein are based upon the pleadings
as amended, admissions thereto, or undenied portions thereof which are deemed to
be admitted pursuant to Section 102.20 of the National Labor Relations Board's
Rules and Regulations Series 8, as amended, stipulations of the parties, and credited
testimony of witnesses.'°
On December 17, 1964, the Union filed a representation petition in Case 24-RC-
2577, designed to determine under Board's processes whether employees of the
Respondent (in the appropriate bargaining unit involved herein) wanted the Union
to be their bargaining representative, and if a majority of the employees so desired,
to have said Union certified as the exclusive bargaining representative of such
employees. On January 14, 1965, at a hearing resulting from said petition, the
Respondent and the Union entered into a consent agreement as to a representation
election and procedures related thereto. Pursuant to said consent-election agree-
ment a representation election was held on January 29, 1965, among the employees
in the agreed and approved appropriate bargaming unit of the Respondent.
1. The appropriate bargaining unit
All employees working for Call, Burnup, and Sims, Inc., in its concrete pumping
operations in Puerto Rico, exclusive of office clerical employees, professional per-
sonnel, guards, and supervisors as defined in the Act, constitute a unit appropriate
IU Stipulations at the hearing removed any issue as to the status of Armando Rey as a
supervisor within the meaning of Section 2(13) of the Act. The status of other agents
of the Respondent (its attorneys and Fuentes) is not disputed
243-084-67-v of 159-106
1666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the purposes of collective bargaining within the meaning of Section 9(b) of
the Act.
2. The Union's representative status
On January 29, 1965, a majority of Call, Burnup, and Sims, Inc.'s employees in
the appropriate unit (described above), by secret-ballot election conducted under
the supervision of the Regional Director of Region 24 of the Board, designated and
selected the Union as its representative for purposes of collective bargaining with
the Respondent, and on March 1, 1965, said Regional Director certified the Union
as the exclusive collective-bargaining representative of the employees in said unit.
At all times since March 1, 1965, and continuing to date, the Union has been the
representative for the purposes of collective bargaining of the employees in the unit
described above, and by virtue of Section 9(a) of the Act has been and is now the
exclusive representative of all the employees in said unit for the purposes of col-
lective bargaining with respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment."
3. Events of October 1964 12
Armando Rey commenced working for the Respondent as manager of its pump-
ing operation in Puerto Rico around October 25, 1964. Shortly thereafter, approxi-
mately 2 weeks later, some of the employees complained to Rey that their hours of
employment had been cut since he had commenced working. Rey told the employ-
ees that he would try to see that the operators received 8 hours a day on the days
they worked and that he would try to see that the assistant operators received 4
hours of work on the days they worked.
4. Events of December 17-22, 1964 13
As indicated previously, on December 17, 1964, the Union filed a petition with
the National Labor Relations Board in Case 24-RC-2577. The aforesaid petition
is of the type designed to set in force the National Labor Relations Board's pro-
cedures to determine the question of the representative status of the Union in an
appropriate bargaining unit. Rey received notice of the details of the Representa-
tion petition within several days of the filing of the same. Approximately at this
time Rey caused to be posted on a bulletin board a notice advising the employees
that he wanted a meeting of the employees.
On approximately December 22, 1964, the employees at Respondent's pumping
station all were apprised by the aforementioned notice, or by word of mouth, of
Rey's proposed meeting. On approximately December 22, 1964, the employees at
Respondent's pumping station assembled, between 10 and 11 a.m., in Rey's office
for the called meeting.
Rey informed the assembled employees that he had received a letter about the
Representation petition setting forth that 30 percent of the employees desired a
union. Rey asked the employees who were the ones who wanted a union. A
"Ray Brooks v. N.L.R.B, 34'8 U.S. 96. Although Respondent's answer denied the con-
tinued majority status of the Union, it is noted that at no time did the Respondent notify
the Union that it had knowledge indicating that the Union was not longer the majority
bargaining representative nor did the Respondent initiate representation procedures to
redetermine the representative status I find nothing in the record to indicate "unusual
circumstances" within the meaning of the rationale of the Brooks case as a basis of attack
on the presumption of a majority based upon the certification
is The events of October 1964 primarily concern themselves with the introduction of
Armando Rey as manager of Respondent's pumping station in Puerto Rico The facts as
to such events are based upon a composite of the credited testimony of Rey and Roberto
de Leon Rodriguez
la The facts as to the events of December 17-22, 1964, are based upon a composite
evaluation of the stipulated facts and credited testimony of Rey, Jose Ramon Lopez, Jose
de Leon Rodriguez, Roberto de Leon Rodriguez, Jose Torres Ortiz, and David Rodriguez.
Jose de Leon Rodriguez and David Rodriguez testified more convincingly and completely
as to the details. Rey's testimony was consistent with the facts as found although not
complete in detail. Jose Torres Ortiz, Jose Ramon Lopez, and Roberto de Leon Rodriguez
appeared to confuse the facts as to several of Rey's talks. To the extent that testimony
of the witnesses is inconsistent with the facts found it is discredited as being incomplete
or confused.
CALL, BURNUP, AND SIMS, INC. 1667
majority of the assembled employees held up their hands indicating that they
desired a union . Rey then asked the employees why they wanted a union. An
employee named Lopez then asked Rey about his assurances of 8 hours' work for
the operators.
Rey told the employees that he was new with the Respondent, that he had been
there only 2 months and that he had been good to the employees. Rey told the
employees that he was sorry that the employees had done what they had about the
union petition , that he was new with the Company and that this could affect him,
that it could hurt him, that he could lose more than they could, that the Respondent
was a company that had existed for 30 years without a union and that his super-
visors would not think he was doing a good job.
Rey told the employees that he expected them to change their minds about the
Union and that they should forget about the Union. Rey also told the employees
that if the Union came in that the Company would probably sell its equipment or
take the pumps out of Puerto Rico and the employees would be left without jobs,
that he probably would not be able to guarantee 8 hours of work a day to the
operators and that he probably would have to utilize two shifts and eliminate over-
time work. Rey told the employees that they should not engage in union conversa-
tions on the job. Rey concluded his talk by telling the employees that they should
go out and think, that he wanted to see them individually and find out who wanted
the Union or not.
Apparently during the next hour or two after Rey had talked to the employees in
a group, individual employees were requested to go into Rey's office to see him.
Thereafter a number of the employees went into Rey's office individually to see
Rey. On the occasion that Jose de Leon Rodriguez was in Rey's office, Rey told
Jose de Leon Rodriguez that he knew that Jose de Leon Rodriguez was the leader
of the Union, that however, he hoped Jose de Leon Rodriguez would change his
mind about the Union. Jose de Leon Rodriguez told Rey that the employees
needed a union. Rey, thereupon told Jose de Leon Rodriguez that he (Rey) would
do everything he could to avoid a union.
On the occasion that Jose Torres Ortiz went in to see Rey in his office, Rey
asked Jose Torres Ortiz his opinion of the Union. Jose Torres Ortiz replied that
he was interested in the Union. Rey asked Jose Torres Ortiz why he was interested
in the Union. Jose Torres Ortiz replied that with a union he would have a right
to a vacation and that he had been working for the Respondent for 6 years and
had not had,a vacation. Jose Tones Ortiz told Rey that with a union he would get
bonuses and sick leave. Rey told Jose Tones Ortiz that the Union could promise
those things (vacations, bonuses, and sick leave) but that the Union could not
accomplish such things. Jose Torres Ortiz replied that in any event he was for the
Union. Rey told Jose Torres Ortiz that he was sorry that he felt that way because
he (Rey) thought Jose Torres Ortiz was one of the best employees. Rey bade
Jose Torres Ortiz goodbye and the latter returned to work.
On the occasion that Roberto de Leon Rodriguez went to see Rey, Rey asked
Roberto de Leon Rodriguez what he had learned about the Union and why he
wanted a union. Roberto de Leon Rodriguez told Rey that a union was necessary,
that with a union the employees would obtain hospitalization benefits and security
for the future of their families. Rey interrupted Roberto de Leon Rodriguez to
tell him to forget about it, that he was just like his brother (Jose de Leon Rod-
riguez), that he was trying to bring the Union in there. Roberto de Leon Rod-
riguez thereupon left the office.
5. Events of January 11-13, 1965 14
After the meeting (around December 22, 1964), Rey had another meeting with
the employees concerning a paper that the employees could sign. The exact date
of the meeting is not vital since in any event it is clear that it occurred at some
time between December 22, 1964, and January 26, 1965. The witnesses who testi-
fied as to the date of the meeting placed it as follows: (1) Rey testified to the
date of the meeting as being about a week after the December 22, 1964, meeting;
(2) David Rodriguez testified that the date of the meeting was around January 10
"The facts as to the events of January 11-13, 1965, are based upon a composite and
the credited testimony of Rey, David Rodriguez, Jose Ramon Lopez, and* Jose Bigio.
Biglo is identified on the complaint as Vigio and in the official record as Viglo In this
Decision he will be referred to as Bigio.
1668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or 15, 1965 ; ( 3) Jose Ramon Lopez testified to the effect that the meeting occurred
in the middle of January 1965; ( 4) Jose Bigio testified to the effect that he went
to an office with reference to the paper concerning the Union in January 1965.
Sims, Respondent's secretary , testified to the effect that when he learned of the
union problem that he instructed Rey to cease his activities and that he changed
lawyers. Sims placed the time that this action occurred as being late December
1964 or early January 1965. The record reveals that on January 14, 1965, a repre-
sentation hearing was held in which the attorney involved in the "paper" event
participated and in which Respondent 's new attorneys did not participate.
The evidence as to the incident involved -herein was adduced for the purpose of
background evidence to aid in evaluation of Respondent 's motivation as to his con-
duct relating to bargaining . It is evident that Respondent 's evidence was adduced
to refute that such evidence revealed bad motivation . It would appear that
Respondent was trying to show that such conduct was without its knowledge and
therefore not revealing of the motivation of its bargaining representative.
It could be argued that I should credit Sims to the timing of his instructions being
late December 1964 or early January 1965 and since the evidence reveals that
Attorney Marrero was in a representative capacity on January 14, 1965, discredit
his testimony that he instructed Rey to cease and desist from his activities , and that
I should believe that Sims knew of Rey's and Marrero's conduct relative to the
"paper" for employees to sign about the Union at the time that such conduct
occurred.
Considering the sequence of events and Sims' demeanor as a witness , I am con-
vinced that he truthfully testified to the effect that as soon as he learned of the
union problem that he instructed Rey to cease his activities and that Sims changed
lawyers. Under such circumstances I find Rey's testimony as to the date of the
paper-signing event unreliable and do not credit it. Similarly , I find Sims' testi-
mony as to the timing of his instructions to Rey unreliable and do not credit it.
Considering the fact that David Rodriguez timed the paper-signing incident in the
middle of January 1965, around January 10 or 15, 1965, that Jose Ramon Lopez
timed the paper-signing incident around the middle of January 1965, the fact that
Jose Bigio timed the paper -signing incident around the middle of January 1965, and
the fact that , it appears that Sims had not changed the Respondent 's lawyers by
January 14 , 1965, the fact that it appears that the initial entrance of a lawyer on
the scene appears to be in connection with the paper -signing incident , I place the
timing of the "paper-signing" around January 11 to 13, 1965.
Approximately on January 11, 1965, Rey (manager of Respondent 's pumping
station ) and Fuentes ( Respondent 's vice president ) discussed the "union" problem
and Fuentes stated that they should see a lawyer . Rey and Fuentes went to see
a lawyer close to their office . The lawyer advised Rey and Fuentes that they
should get the employees to sign a paper to the effect that the employees did not
want a union . The first lawyer prepared a paper document for this purpose and
gave it to another lawyer ( apparently in the same law firm ) who accompanied Rey
and Fuentes back to Respondent 's shop.
Approximately on January 11, 1965, Rey had all of the employees at the pump-
ing station (except Jose de Leon Rodriguez and Jose Bigio ) assembled . Rey told
the employees that the lawyers had a paper with which they could either accept or
reject the Union, that the paper was for the National Labor Relations Board. Rey
told the employees that by signing the paper they could finish the problem with
the Union , that the ones who wanted to sign the paper were free to sign it, that
the ones who did not want to sign it did not have to sign it and that the ones
who could not sign the paper could write yes or no by their names.
The paper that was shown to the employees was typed and in English . Appar-
ently one of the employees asked why the paper was in English. Rey told the
employees that the paper was for the National Labor Relations Board and was
required to be in English . 15 The paper contained a statement to the effect that
employees of Burnup and Sims did not want a union because working conditions
were - good. The paper also contained the typed names of the employees and a
place for the signatures of the employees . All of the employees present signed the
paper document.
15 Although David Rodriguez testified that Rey said that the paper was from the Na-
tional Labor, Relations Board, I am convinced that the evidence does, not reveal that Rey
was attempting to perpetrate a fraud in this regard. I , therefore , believe that Rey told
the employees it was for the National Labor Relations B oard. Whether the word for or
from was used would not vitally affect the effect of the facts herein.
CALL, BURNUP, AND SIMS, INC. 1669
Jose Bigio, who was working at a location away from Respondent 's station, was
sent for by Rey and was told to go to an office at the Bank of San Juan. Bigio,
apparently shortly thereafter, went to an office at the Bank of San Juan where he
met Rey and a lawyer. Rey told Bigio to sign the paper, that he knew what it
was for, that he knew that it was to eliminate the Union . Bigio, as the other
employees had done, signed the paper document indicating that he did not want
the Union because working conditions were good.
6. Events of January 14, 1965 16
On January 14, 1965, representatives for the Union and the Respondent (Rey,
Fuentes, and Attorney Marrero) met at a scheduled representation hearing. On
this day the Respondent and the Union executed a consent-election agreement
designed for National Labor Relations Board election procedure determination of
the question of representation status.
7. Events of January 14-29, 1965 17
Sometime shortly after January 14, 1965, Rey or Fuentes communicated with
Riley V. Sims concerning the events relating to the Union. Sims thereupon in-
structed Rey that he was to cease from his activities relating to the union question
and to do nothing unless as told by Sims or Attorney Muller. Sims at this time
also ceased using Marrero as an attorney for the union question and commenced
using Attorney Muller and the latter's firm.
Apparently between January 14 and 29, 1965, Attorney Muller visited Respond-
ent's operations in Puerto Rico. Apparently during this time Muller prepared a
written speech for Rey to read to the employees. Rey made the speech as written
on two occasions between January 14 and 29, 1965. Only fragments of what Rey
told the employees are revealed in the evidence.18 Rey, in his speech, told the
employees that they had a right to vote against the Union if they wanted to, and that
they had a right to vote against the Union if they did not want the Union. Rey
credibly testified to the effect that he interspersed at several places in his speech
that the employees had a right to vote for the Union if they wanted to.
8. Events of January 29 and March 1965 is
As indicated elsewhere, the representation election was held on January 29, 1965,
and was won by the Union. On March 1, 1965, the Union was certified by the
Regional Director as the exclusive bargaining representative of Respondent's em-
ployees in a described appropriate bargaining unit.
In March 1965 the parties executed a settlement agreement in disposition of the
unfair labor practice charges filed by the Union in January 1965.
9. Respondent's revealed motivation
The evidence (1) as to Rey's conduct and statements to assembled employees on
December 22, 1965, in individual interviews with employees on December 22,
1965, and (2) as to Rey's and Fuentes' and Attorney Marrero's conduct and state-
ments to assembled employees on approximately January 18, 1965, with iegard to
the document relating to employees "not wanting the Union" was adduced to reveal
a background as to Respondent's motivation in not intending to sincerely recognize
or bargain with the Union. Standing alone it is clear that the -aforedescribed con-
duct does reveal an attitude of hostility toward the recognition of the principle of
collective bargaining and against the recognition of a union under any circumstances.
10 The facts are based upon a composite of stipulated facts and 'credited testimony of
Pedro Cortes Sanchez
17 The facts as to the events of January 14-29, 1965, are based upon a composite of the
credited testimony of Rey and David Rodriguez and upon stipulated facts From the
total consistency of the evidence and Sims' credited testimony as to the instructions to Rey
and to the changing of "lawyers," I am convinced and find that Rey communicated to
Sims initially about the union problems after January 14, 1965.
"I note however that the credited testimony of Rey reveals that copies of the written
speech were transmitted to the National Labor Relations Board's office in San Juan,
Puerto Rico.
19 The facts are based upon stipulations and credited testimony of Pedro Cortes Sanchez.
1670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
From the nature of the evidence adduced by the Respondent it would appear that
a contention is raised that the aforedescribed conduct does not in fact reveal
Respondent 's motivation . This appears to be contended on the basis that Sims and
Muller were the ones who handled the bargaining aspects of this case for Respond-
ent, that Sims and Muller were not aware of Rev's, Fuentes ', and Marrero's con-
duct until after it had been done, that Sims instructed Rey to cease from his activi-
ties and to do nothing unless told to do so by Sims or Muller , and that Respondent
settled the unfair labor practices charges in March 1965.
I note that despite the evidence that Sims learned of Rey's, Fuentes ', and Mar-
rero's activities Respondent took no positive action to disavow such conduct so as
to dissipate the unfair labor practice effect until after the January 29, 1965, elec-
tion was over . It is thus obvious that although Respondent recognized that the
described conduct was improper , it was willing to reap the benefit of such conduct.
I do not consider significant the fact that Rey in his written prepared speech
adhered to the law and correctly told employees that they were free to vote for or
against the Union in the absence of a positive disavowal of his prior conduct.
Under such circumstances I am convinced that Respondent 's action in directing Rey
to cease his activities was no more than wise counsel to avoid committing other
acts of unfair labor practices and did not reveal that Respondent was motivated in
a different direction than as indicated by Rey's, Fuentes ', and Marrero 's conduct.
Although I am convinced that Rey and Fuentes did not know of Respondent's spe-
cific manner of handling union and labor problems , I find it hard to believe that
top supervisory agents of Respondent ( Manager Rey and Vice President Fuentes)
did not know Respondent 's general attitude toward unions and toward the principles
of collective bargaining Accordingly , I am convinced that the evidence of Rey's,
Fuentes', and Marrero's conduct in December 1964 and January 1965 consti-
tutes background evidence of Respondent 's hostility toward unions and collective-
bargaining principles.
10. Events of February 8, 1965 20
On February 8, 1965, Roberto de Leon Rodriguez reported to work late and did
not punch his timecard . Jose de Leon Rodriguez punched Roberto de Leon Rodri-
guez' timecard for him.21 One of Rey's assistants reported this matter to Rey and
Rey sent for Roberto de Leon Rodriguez and Jose de Leon Rodriguez . Rey dis-
cussed the problem involved with Roberto de Leon Rodriguez and Jose de Leon
Rodriguez . Apparently Jose de Leon Rodriguez defended his actions on the basis
that he was a steward or delegate of the Union. Rey told Jose de Leon Rodriguez that
the parties did not have a union contract , that the Respondent was not supposed to
have these problems from him, and that even he (Jose de Leon Rodriguez) was
not supposed to mark anyone 's card. Rey told Jose de Leon Rodriguez that he was
not to do this any more.
The General Counsel does not contend this conduct is violative of the Act. The
Respondent appears to have adduced this evidence to reveal that Jose de Leon
Rodriguez was acting without authority and in an illegal manner. I note however
that Rey's credited testimony and the facts do not reveal that Rey contested the
legality of Jose de Leon Rodriguez as a delegate or steward but only that he did
not have to deal with Jose de Leon Rodriguez because there was no union contract.
11. The events of April 1965122
Approximately between 6 and 7 a.m . one morning in early April 1965 several
operator helpers complained to Jose de Leon Rodriguez that the operator helpers
were not getting the 4 hours of work a day they believed promised by Manager
Rey. Whether Jose de Leon Rodriguez was in fact a duly appointed or elected
20 The facts as to the events of February 8, 1965 , are based upon the credited testimony
of Rey.
21 Roberto de Leon Rodriguez and Jose de Leon Rodriguez are brothers
22 The facts as to the events of April 1965 are based upon a composite of the credited
testimony of Jose de Leon Rodriguez , Roberto de Leon Rodriguez , Jose Ramon Lopez, and
Jose Torres Ortiz. Jose de Leon Rodriguez testified clearly and convincingly on this
event. The nature of the questions directed to Rey and his answers thereto did not
clearly reveal that he was questioned as to or denied the group meeting I discredit Rey's
testimony that he talked only to Jose de Leon Rodriguez . Portions of the testimony of
Roberto de Leon Rodriguez, Jose Ramon Lopez , and Jose Torres Ortiz appeared confused
and are not credited to the extent inconsistent with the findings herein
CALL, BURNUP, AND SIMS, INC. 1671
delegate or steward of the Union is not revealed by the evidence . It is clear that
Jose de Leon Rodriguez considered himself a leader and delegate of the Union and
that his fellow employees considered him as their union leader . It is also clear
from Rey's credited testimony that Rey considered Jose de Leon Rodriguez the
leader of the Union.
After his fellow employees had complained about the foregoing question , Jose de
Leon Rodriguez , accompanied by fellow employees Roberto de Leon Rodriguez,
Arsenio Betancourt , and Jose Torres Ortiz, went to Rey's office and saw Rey. Jose
de Leon Rodriguez acted as spokesman for the group and told Rey that he was the
union delegate or steward 23 and the operator helpers were complaining that he
(Rey) had promised them 4 hours of work a day and that despite this they were
being sent home ahead of time and were not receiving pay for 4 hours . Rey told
Jose de Leon Rodriguez that when he (Rey ) promised something that he was usu-
ally good for it, that he (Rey ) would take care of the problem immediately , that as
long as the boys were told to come in the day before that if they reported to work
and there was no work that they would be paid anyhow for 4 hours' work. Rey
told Jose de Leon Rodriguez that there was not a union contract and accordingly
that he ( Rey) did not recognize the Union , that he ( Rey) did not recognize the
status of a union delegate or steward , that Jose de Leon Rodriguez should not speak
to him ( Rey) as a union delegate or steward , and that if any of the employees had
problems that they should come in personally to talk to Rey.
Immediately following the above meeting , Rey called together the other employ-
ees in the shop for a meeting in his office . Rey told the assembled employees that
if they had problems to come to him personally and not to come to him "through a
delegate" because he did not recognize a delegate or a union . Jose de Leon Rodri-
guez and Roberto de Leon Rodriguez spoke up and told Rey that there had been an
election, that the Board had certified the election and that therefore they had a
right to have a representative of the Union to represent them. Rey told Jose de
Leon Rodriguez that he was repeating that Jose de Leon Rodriguez should not come
as a union delegate because he (Rey ) would not listen to him . Rey told Jose de
Leon Rodriguez that, in order that problems be avoided , he (Rey ) hoped that Jose
de Leon Rodriguez would not come again as a union delegate, that if Jose de Leon
Rodriguez came to him ( Rey) as a worker he (Rey) would take care of his
problem.
Contrary to Respondent 's contentions , the issue involved as to the foregoing inci-
dents is not whether Respondent refused to bargain about grievances with a union
steward in violation of Section 8(a) (5) of the Act. The issue is whether Respond-
ent by Rey's statements interfered with, restrained , or coerced employees in the
exercise of their Section 7 rights. I find nothing in Rey's statements to reveal that
he was doubting whether Jose de Leon Rodriguez was the duly appointed or elected
union delegate or steward or that he informed the employees of such doubt. Rey's
statements simply reveal that he was not going to deal with or recognize a union, or
a union steward or delegate , because there was no union contract . Assuming the
facts to reveal that the Respondent could refuse to deal with Jose de Leon Rodri-
guez on the basis that he was not•a duly elected or appointed union steward or dele-
gate, the Respondent cannot make statements to employees which in effect reveal
that the Respondent unqualifiedly will not recognize their certified bargaining agent
(the Union) or their union delegates or stewards.
Considering all of the foregoing , I conclude and find that Respondent, by its
agent Rey , in April 1965 threatened its employees that it would not recognize or deal
with the Union or the Union 's delegate or stewards . Such conduct is violative of
Section 8(a)(1) of the Act. I so conclude and find.
The foregoing evidence as to Rey's threats was adduced both in support of the
complaint's 8(a) (1 ) allegations and as evidence relating to Respondent 's motiva-
tion as to bargaining . As indicated previously I find that around January 18, 1965,
Sims learned of Rey's activities theretofore and instructed Rey 24 to cease and desist
from such activities and to only do such things as instructed by Sims and Muller.
As also indicated previously , I am convinced that Respondent 's action in direct-
ing Rey to cease his activities was no more than wise counsel to avoid committing
other acts revealing unfair labor practice conduct and does not reveal that Respond-
ent was motivated in a different direction than as indicated by Rey's, Fuentes', and
23 Rey credibly testified to the effect that Jose de Leon Rodriguez represented that he
was the union delegate or steward
24 Attorney Muller similarly instructed Rey
1672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Attorney Marrero's conduct. As also indicated previously, although I am con-
vinced that Rey and Fuentes did not know of Respondent's specific manner of han-
dling union and labor problems, I find it hard to believe that top supervisory agents
of Respondent (Manager Rey and Vice President Fuentes) did not know Respond-
ent's general attitude toward unions and toward the principles of collective bargain-
ing Accordingly, I am convinced that Rey's statements to the effect that he did not
and would not recognize a union or a union delegate because there was no union
contract constitute evidence revealing Respondent's opposition to unions and the
principle of collective bargaining.
12. Events of April 6-August 16, 1965 25
The events of April 6, 1965, through August 16, 1965, may be chronologically
set out as follows:
On April 6, 1965, the Union transmitted a letter (with a substantially complete
contract proposal), written in Spanish, to Armando Rey (Respondent's local man-
ager). The Union's letter referred to the enclosure of the contract proposal and
related that certain other clauses would be submitted at the negotiating sessions.
The Union invited the Respondent to commence negotiations on April 12, 1965, at
a stated designated place.26
On April 8, 1965, Attorney Roy H. Schenerlein, for the Respondent, transmitted
a reply letter to the union letter of April 6, 1965.27 The relevant statements therein
are revealed by the following excerpts from the letter:
In answer, please be advised that my firm represents the employer and will
be its bargaining agent. It will be greatly appreciated if you will forward me
an English translation of your proposal so that we will be able to study it and
prepare an answer or counter-proposal. Until we have had such an oppor-
tunity it would appear that a bargaining session as early as Monday, April 12,
would be premature.
Upon receipt of the English translation and after reasonable opportunity to
study the same, we will set a date for the first bargaining session at a mutually
agreeable time.
On April 15, 1965, the Union transmitted a letter to Schenerlein in reply to his
letter of April 8, 1965. The relevant statements therein are revealed by the follow-
ing excerpts from said letter:
We acknowledge receipt of your letter of April 8, of this year, requesting us
to send you a copy in English of the Proposed Collective-Bargaining Agree-
ment, submitted by our Union to your client Call, Burnup and Sims.
We greatly regret not being able to accede to your request in that respect,
inasmuch as all the documents of our organization are in the Spanish language.
We believe that if you need a copy in English of such document, which was
submitted to your client, it is their Office in San Juan, which should furnish
them said copy in the language that you wish.
25 The facts as to the events from April 6 through August 16, 1965, concern (1) corre-
spondence between the parties, (2) a union handbill, (3) a strike by employees on July 23,
1965, (4) an offer to return to work by striking employees on August 9, 1965, and (5)
hearsay information as to striking employees' conduct, credited testimony of Jose Ramon
Lopez, and certain court records. The facts as to the correspondence between the parties
are based upon stipulation as to the correspondence The facts as to the union handbill
are based upon the credited testimony of Pedro Cortes Sanchez The facts as to the
July 23, 1965. strike are based upon a composite of the credited testimony of Pedro Cortes
Sanchez, Roberto de Leon Rodriguez, Jose de Leon Rodriguez, and Jose Torres Ortiz. The
facts as to the August 9, 1965, offer to return to work by the striking employees are based
upon a composite evaluation of all the evidence, upon stipulations and upon the credited
testimony of Jose Torres Ortiz, Jose de Leon Rodriguez, and Rey. The event concerning
Rey's threat to employees has been set out previously
The contacts between the Union and the Respondent as to the setting up of negotiat-
ing meetings herein were limited to written correspondence which was stipulated into the
record. The Union's were in Spanish and Respondent 's letters in English. Sims credibly
testified to the effect that in accordance with his instructions all of his attorney 's letters
were approved by him before issuance.
W A reply to the Union 's April 6, 1965, letter on the stationary of the law firm of Muller
and Schenerlein of Miami , Florida.
CALL, BURNUP, AND SIMS, INC. 1673
We also wish to make it clear that we shall only discuss said Collective-
Bargaining Agreement in Spanish, inasmuch as the Committee that will handle
the negotiation is composed of workers who only speak the language of this
country which is Spanish.
For your information we wish to inform you that the Board of Directors of
this Union, at its last meeting, reached the following conclusions; that your
client Call, Burnup and Sims has been intentionally delaying all the legal pro-
cedures that we have undertaken on behalf of our represented and that it's
time for it to cease engaging in such unfair practice, which in the long run will
not lead to good understanding between the two parties.
To such effect the Board of Directors agreed to give the Employer, Call,
Burnup and Sims, until Monday, April 26, 1965, at 2:00 p.m. to start discuss-
ing with the Union the Proposed Collective-Bargaining Agreement that was
submitted to it by this labor organization. On said date, day and hour we
shall meet at the Conciliation and Arbitration Bureau of the Puerto Rico
Department of Labor, located at 414 Barbosa Ave, Hato Rey, to commence
the negotiation of the Collective-Bargaining Agreement.
Should you fail to accede to the request that we are making through this
communication, this Union shall have no other alternative but to use all of its
power to make your client obey the laws of Puerto Rico and those of the Fed-
eral Government of the United States.
Apparently sometime between April 15, 1965, and April 29, 1965, the Union dis-
tributed a handbill to employees concerning the Respondent's request for translation
of the Union's contract proposals.28 The handbill contained language to the follow-
ing effect:
Now those lawyers have written to us advising that they will be in charge of
the negotiation of the agreement and requesting that we submit same in the
English language.
The union has drastically refused to comply with the claims of the employer
as that agreement will only be discussed in Spanish which is the language of
our country.
On April 23, 1965, Ray C. Muller, one of Respondent's retained counsel (law
partner of Schenerlein), transmitted a letter to the Union in reply to the Union's
April 15, 1965 letter. The relevant statements therein are revealed by the following
excerpts from said letter.29
We have received a letter from you dated April 15, 1965, written in Span-
ish We also have not yet received any translation from you of the Spanish
contract proposals you sent us.
Our firm has been designated by Mr. Sims, President of the Company, as the
authorized bargaining representative. All labor relations policies are set in
West Palm Beach by Mr. Sims and all decisions concerning labor relations are
made by Mr. Sims. Neither Mr. Sims nor we, as the Company counsel and
designated bargaining representative, speak any Spanish whatsoever.
We feel that since we are operating under an English law, for an American
company, it is not unreasonable that we request that negotiations be carried on
in the English language. Of course, you or your committee should feel free at
any time to use our interpreter in negotiations if you feel that this is necessary.
Again, please furnish your proposals in English, advise us when you want to
meet, and we will be most happy to commence negotiations looking toward
an agreement with your union.
On April 26, 1965, Ray C. Muller transmitted another letter to the Union in
which he stated that the words "our" (relating to "use our interpreter") in the last
21 The only, witness who testified with reference to the handbill was Pedro Cortes
Sanchez. The date of the handbill distribution was not precisely established. Counsel
for Respondent in his question referred to an April 20, 1965, date but the answers did
not establish the date as of any particular time. Considering the matter referred to in
the handbill and the logical consistency of all of the evidence, I fix the time as indicated
The facts as to the content of the handbill are based upon the credited testimony of
Pedro Cortes,Sancbez.
2DAlthough the letter refers to Sims as president of the Company, the evidence reveals
Sims to be president of the parent corporation (a Florida corporation) and secretary of
the Respondent herein.
1674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sentence of the third paragraph of his April 23, 1965, letter was a typographical
error and should have been "your." Muller's letter also set forth that he awaited
the Union's advice as to when negotiations could commence and that he still wanted
a copy of the Union's proposals.30
On July 6, 1965, the Union transmitted a letter and a translated copy of its con-
tract proposals to Attorney Roy M. Schenerlein. The relevant statements therein
are revealed by the following excerpts from said letter:
Attached we are sending you a copy in English of the proposed Collective-
Bargaining Agreement that was submitted to your client Call, Burnup and Sims
by this Union.
We hope to have satisfied you thereby, but insist that we discuss this contract
in the Spanish language, inasmuch as the persons who will be affected by said
document only speak this language.
We take this opportunity to invite you to start discussing and negotiating
said contract on Wednesday, July 21 of this year, starting at 9:00 a.m , at the
Conciliation and Arbitration Bureau of the Puerto Rico Department of Labor,
located at 414 Barbosa Ave., Hato Rey, Puerto Rico.
On July 7, 1965, Attorney Muller transmitted a letter to the Union in reply to the
Union's letter of July 6, 1965. The relevant statements therein are revealed by the
following excerpts from said letter:
We have your letter of July 6, 1965 with the English translation of the pro-
posed Collective Bargaining Agreement.
We do appreciate your courtesy in sending us your proposals in English and
we were able to have your letter translated for us. However, we do not agree
that negotiations be conducted in Spanish. You state that all persons who will
be affected by the contract can only express themselves in Spanish. I must
point out to you that it is your Union that is the designated collective bargain-
ing agent for the employees and your Union will do the negotiations, not the
employees who will be affected by the contract. Further, you should under-
stand that the employer and his representatives in these negotiations neither
speak nor understand Spanish. If you feel it necessary, you can use an inter-
preter for negotiations and thereafter interpret into Spanish any agreement
arrived at so that your Spanish speaking members may know what your orga-
nization has obtained for them.
I would appreciate hearing from you as to when we may commence negotia-
tions in English toward reaching agreement on a Collective Bargaining Contract.
On July 13, 1965, the Union transmitted a letter to Attorney Muller in reply to
Muller's July 7, 1965, letter. The relevant statements therein are revealed by the
following excerpts from the said letter:
We acknowledge receipt of your letter dated July 7, 1965, notifying us that
you received the copy of the Collective-Bargaining Agreement Proposal sent
you, attached to which was a letter inviting you to start discussing and negoti-
ating said contract on Wednesday, July 21, 1965, starting at 9 a.m., at the
Conciliation and Arbitration Bureau of the Puerto Rico Department of Labor
located at 414 Barbosa Ave., Hato Rey.
It is our purpose to inform you again that according to the Union's plans,
Wednesday, July 21, 1965, continues to be the date when we shall meet at the
Puerto Rico Department of Labor to initiate the negotiation of said contract.
As regards your allegation that it is necessary that the negotiation of this
contract be conducted in the English language may I tell you the following:
(1) It may be possible that neither you, nor the representatives of your
client, Call, Burnup and Sims, in the city of Miami know how to express
yourselves in the Spanish language, but the representative of said Company in
San Juan, Puerto Rico, Mr. Armando Rey, does know how to express himself
in Spanish, inasmuch as he is of Latin origin.
(2) When this Union filed a petition for election with the National Labor
Relations Board, San Juan Office, your client Call, Burnup and Sims, attended
30 Since Respondent already had a "Spanish" copy of the proposals, it is obvious that
Muller was referring to an "English" copy of the proposals.
CALL, BURNUP, AND SIMS, INC. 1675
the hearings that were held before said agency, represented by persons who
understood Spanish very well, and all the proceedings in such hearings were
conducted in that language.
(3) Finally, it is our purpose to remind you that our highest Court of Jus-
tice, the Supreme Court of this country, in a recent decision declared that the
Spanish language is the language of Puerto Rico, inasmuch as it is the manner
of understanding each other in this country.
For the reasons set forth in this letter, we continue to sustain that due to
the little knowledge that we have of the English language, it is necessary that
we discuss this contract in Spanish and that in this case it is you who have
to obtain an interpreter to translate the proceedings of the negotiations. To
conclude our letter we again emphasize that it is necessary that we meet on the
date that we mentioned abo,,c and which shall he the date when we shall sit
down to negotiate the Contract between this Union and your client, Call,
Burnup and Sims.
On July 16, 1965, Attorney Muller transmitted a letter to the Union which con-
tained the following statements:
When your Union is prepared to commence negotiations and you are pre-
pared to negotiate in the English language, please let us know and we will
make ourselves available. Until that time, I see no point in further communi-
cations-particularly when I can't read what you write.
On July 23, 1965,31 some of Respondent's employees congregated around 6 to 7
a.m. and decided to see Manager Rey and tell him that if an agreement were signed
they would continue working, that otherwise they would stop and strike. Thirteen
of the employees saw Rey but were unsuccessful in securing an agreement. Rey
told the employees that the ones in agreement with him could go to work and the
others, to leave. Nine of the employees thereupon went out on strike.
On August 4, 1965, the Union transmitted to Armando Rey (manager) a letter
which contained statements to the effect that the Union had decided to have the
striking employees return to work so as to avoid the interruption of production and
so that the workers could continue working while the unfair labor practice cases
pending before the National Labor Relations Board were being processed. The
Union's letter notified Rey that striking employees would report to work on Mon-
day, August 9, 1965, at the usual (reporting) time.
On August 6, 1965, the Union by President Pedro Cortes Sanchez transmitted
another letter to Manager Armando Rey.32 The letter contained statements to the
effect that the Union was attempting to seek a satisfactory understanding in relation
to the negotiation of a collective-bargaining agreement. The letter set forth that
the Union had instructed Pedro Cortes Sanchez to take certain action. The relevant
statements in the letter as to Pedro Cortes Sanchez' instructions and the Union's
contentions are revealed by the following excerpts from said letter:
... was instructed to request of your company, that if it should be necessary
to obtain the services of a bilingual interpreter in order to be able to negotiate
said contract, whatever fees it might be necessary to pay for the services of
said interpreter be paid fifty-fifty by the union and the Company.
The Union believes that that is a reasonable measure and hope that your
Company will not raise objections to same.
Awaiting a prompt reply to our request, we remain.
On August 9, 1965, eight striking employees reported for work at Respondent's
plant and made an unconditional offer to return to work. Manager Armando Rey
told the eight employees that there were no jobs for them as they had been replaced 33
"The above facts are based upon the credited testimony of Jose de Leon Rodriguez,
Roberto de Leon Rodriguez, and Jose Torres Ortiz A more detailed factual finding as
regards the commencement of the strike is set out in the section of this Decision pertain-
ing to the question of the unfair labor practice strike
13 It is noted that Muller's July 6, 1965, letter indicated the futility of addressing letters
in Spanish to his law firm
33 Stipulated as being the employees named in the complaint allegations with reference
to this issue. Although nine employees went out on strike on July 23, 1965, the record
is barren as to what ultimately happened as to the ninth employee The charges, the
complaint, and statements by counsel reveal that only the eight employees named in the
complaint are involved in the issue herein
1676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On August 16, 1965, Respondent's Attorney Muller transmitted a letter to the
Union in reply to the Union's August,6, 1965, letter. Muller's letter contained the
following:
Mr. Armando Rey has forwarded to me your letter of August 6, 1965. I
apologize for the delay in answering, but I have just returned to Miami after
being out of the City for some period of time.
First, you are aware that I 'am representing the Company in its labor rela-
tions and in these contract negotiations. Under the circumstances, you are
merely wasting time and delaying matters by writing to the San Juan person-
nel of our Company.
Second, I expect the contract negotiations to be conducted in the English
language and I do not intend to have an interpreter present so that I can
understand what you may say in Spanish. If you desire an interpreter to trans-
late for you, that is entirely up to you and I do not feel our client should con-
tribute to any expense which you may incur in using a translator.
Again, we are most anxious to sit down and negotiate a collective bargaining
agreement with your union , but I cannot do it in Spanish.
As to the question of whether the Respondent has refused to bargain, the follow-
ing is argued as having persuasive effect. (1) A decision of the Supreme Court of
Puerto Rico (the People of Puerto Rico, Petitioner v. Supreme Court of Puerto
Rico, San Juan Bench, Hon. Daniel Lopez Pritchard, Judge) in which the court
determined whether an attorney had the right to insist on a judicial proceeding
being conducted in English. The court set forth in effect that Spanish was the com-
munication language of Puerto Rico and that Section 1 of the reference law of Feb-
ruary 21, 1902 (I.L.P.R.A.)34 was directive in scope and did not confer a right on a
defendant or his attorney to decide on the language to be used. In the court's
determination the court pointed out that the determinant factor arose from "the fact
that the means of expression of our people is the Spanish language and that is a
reality that cannot be altered by any law." The court in its decision referred to
due process of law and the right of a fair trial and pointed out the use of trans-
lators as a means of affording such. The court overruled a lower court's ruling that
the defendant's attorney had a right to insist on use of the English language in the
proceeding. (2) A provision of the laws of Puerto Rico relating to collective-
bargaining contracts was introduced into the record as follows.
LAWS OF PUERTO RICO Annotated
T. 29, Sec. 62(5)
(5) All existing collective bargaining contracts, as well as those hereafter
executed, are hereby declared to be instruments for the promotion of the pub-
lic policy of the Government of Puerto Rico in its efforts to develop production
to the maximum; and it is declared that as such they are vested with a public
interest. The exercise of the rights and the performance of the obligations by
the parties to such collective bargaining contracts are therefore subject to such
reasonable regulations as may be necessary to effectuate the public policies of
this subchapter.-? May 8, 1945, No. 130, p. 406, Sec. 1; Mar. 7, 1946, No.
6, p. 18, Sec. 1, eff. Mar. 7, 1946.
^(3) A provision of the statutes of the United States of America was introduced into
the record as follows:
48 U.S. Code Annotated 864
All pleadings and proceedings in the District Court of the United States for
Puerto Rico shall be. conducted in the English language.
(4) The Respondent was represented at the January 14, 1965, representation hear-
ing (Case 24-RC-2577) by Vice President Fuentes, Manager Rey, and Attorney
Marrero, all of whom it is clear were fluent in the Spanish language. At the repre-
sentation hearing proceeding Attorney Marrero and Fuentes conducted discussion
with the hearing officer in English. A translator was provided to translate English
34 This section provides : "In all departments of the State Government, in all courts of
this island and in all public offices, the English and the Spanish language shall be used
without distinction ; and whenever necessary , oral translations and interpretations shall be
made from one language into the other, so that the interested parties may understand any
proceeding or communication in said language."
CALL, BURNUP, AND SIMS, INC. 1 1677
into Spanish and vice versa for Jose Cortes Sanchez-* the union president.35 (5)
Armando Rey testified in the instant proceeding and I find from my observation of
Rey as a witness and his testimony that he is reasonably fluent in the use of the
English language. Sims also credibly testified to the effect that he had heard Rey
use English while conversing with him and employees in Sims' presence.36 (6)
Pedro Cortes Sanchez credibly testified to the effect that Jose Vasquez Canino and
Antonio Crespo were fluent in both the English and Spanish language. Jose Vas-
quez Canino testified in the instant proceeding and I find from my observation,of
Jose Vasquez Canino as a witness and his testimony that he understands the English
language well enough to converse in the same, although it would appear obvious
that some difficulties might arise. I am convinced that with patience and under-
standing that Jose Vasquez Canino and a person speaking English could resolve the
understanding of matter discussed. (7) Pedro Cortes Sanchez credibly testified to
the effect that the employees in the appropriate bargaining unit were fluent in Span-
ish but not in the English language. Sims credibly testified to the effect that he had
seen Rey converse in English with some of the employees. As Sims explained the
incident, it appears that English was used as a matter of courtesy to Sims. (8)
Sims credibly testified to the effect that his oral and written instructions to Fuentes
and Rey were in the English language. It is obvious therefore that Sims relied on
Fuentes' and Rey's seeing to it that such instructions were communicated to the
employees in a language the employees understood. From all of the evidence it is
obvious that it would be necessary that the instructions be transmitted to some of
the employees in Spanish. As Sims credibly testified, on occasion, when he wished
to talk to an employee who understood Spanish only, Rey translated Sims' state-
ments from English to Spanish. It is obvious that Rey would also have to translate
the employee's statement from Spanish to English for Sims' benefit. (9) Sims cred-
ibly testified to the effect that examination of the English translated copy of the
Union's contract proposal revealed variations and obvious irregularities. Sims also
credibly testified to the effect that such variations or irregularities were never
pointed out to the Union. (10) Muller's letter of August 16, 1965, constituted the
last act of Respondent or the Union with respect to the negotiating problem as of
the time of the hearing in this matter. (11) Sims testified as to the factors he con-
sidered in declining to negotiate in the Spanish language as is revealed from the
following excerpts from his testimony: 37
Well, everything that we have had anything to do within the U.S. Federal
laws are in English, and also the Puerto Rico federal laws are in English.
And every contract that we have of a business nature has been in English.
And our people are just not versed, or would have the ability to do it in Eng-
lish.-I mean in Spanish: I'm sorry.
Q. Was any consideration given to the different meanings or shading of
language?
A. Well, after reading this contract that has just been exhibited here, then
we came upon different variations. And it just seemed impossible to go for-
ward with a Spanish translation.
Summary as to the Refusal to Bargain Issue
The General Counsel's complaint essentially charges Respondent with violation of
Section 8 (a) (5) of the Act. Section 8 (a) of the Act sets forth that "It shall be an
unfair labor practice for an employer-(5) to refuse to bargain collectively with
the representatives of his employees, subject to the provisions of Section 9(a)."
Section 8(d) of the Act defines collective bargaining insofar as applicable to the
issues in this case as
For the purposes of this section, to bargain collectively is the performance of
the mutual obligation of the employer and the representative of the employees
3 It is noted that this January 14 , 1965, hearing occurred prior to Sims ' and Muller's
knowledge of the union problem.
3e Although Sims did not testify that he thought Rey fluent in the use of the English
language , I am convinced from Rey's testimonial appearance that he is . The fact that
a person is fluent in a language does not mean that there could not be some difficulty in
language understanding.
37 It is obvious that Sims knew that common everyday problems in his business were
solved by communicating instructions which on occasions had to be translated Consider-
ing the total consistency of all the evidence, I do not believe or credit Sims' testimony to
the effect that it seemed impossible to go forward with a Spanish translation.
1678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to meet at reasonable times and confer in good faith with respect to wages,
hours, and other terms and conditions of employment, or the negotiation of an
agreement , or any question arising thereunder , and the execution of a written
contract incorporating any agreement reached if requested by either party, but
such obligation does not compel either party to agree to a proposal or require
the making of a concession.
Considering the foregoing, I find it proper to set forth the following truism. If a
party does not make himself available to meet at a reasonable time, the party fails
to meet his statutory obligation to meet at reasonable times and confer in good
faith and thus clearly is not bargaining in good faith within the meaning of Section
8(a)(5) of the Act.
Although the evidence reveals that there were some officials of both the Union
and the Respondent who could speak and understand both English and Spanish, I
find no reason to doubt that each party would feel more assured of his understand-
ing of what was transpiring were the negotiations in his native tongue.
The factual question in this case devolved into a consideration of whether or not
Respondent's conduct concerning the language question reveals that Respondent
was making itself available for meetings at reasonable times.
The General Counsel argues the effect of a court decision and statute of Puerto
Rico relating to the use of the Spanish language in the courts of Puerto Rico. The
Respondent argues the effect of a statute relating to the use of the English language
in courts of the United States of America. I find nothing in the legislative history
of the National Labor Relations Act, in court decisions, or in the National Labor
Relations Board decisions to support an argument that any specific prescribed lan-
guage was intended for the parties to use in collective-bargaining negotiations. I
am convinced that the question of language to be used, similar to questions relating
to time or place of the meetings, is not one to be determined by any rigid set stand-
ard.38 I have considered the above argument only in the nature of persuasive legal
authority as applied to the facts of this case and am convinced that such does not
have persuasive value in determining the issue herein.
Considering the evidence as a whole as relating to the efforts to initiate collective-
bargaining sessions ,39 I note that the Union transmitted its bargaining proposal to
Respondent on April 6, 1965, that although the Union initially insisted (April 23,
1965) on Respondent's translating such proposal on its own into Spanish, that the
Union did furnish (July 6, 1965) to the Respondent what it believed to be a cor-
rectly translated copy of its proposals, and that on August 6, 1965, the Union pro-
posed in effect a sharing of interpreter costs-if translation were necessary. From
all the foregoing it is clear that the Union was making a reasonable and sincere
attempt to solve the problems besetting the commencement of negotiations.
The Respondent's letters reveal that it has insisted on the use of the English lan-
guage in negotiations throughout the period of time involved and that Respondent
would make no move from such a position to accommodate the solution of the
language problem. Respondent's letter of July 16, 1965, was to the flat effect that
there was no point in further communication until the Union agreed to negotiate in
the English language. Respondent's final letter of August 16, 1965, constituted a
continuing expression that Respondent would do nothing to contribute to a solu-
tion of the problem involved.
The Respondent had an affirmative duty to make itself available for collective
bargaining and to seek negotiations of a collective-bargaining agreement. Consid-
ering all of the foregoing, I am convinced that Respondent's failure to point out to
the Union the problems it noted in the translated contract proposal reveals that
Respondent was not attempting in good faith to meet its statutory obligation to
bargain. I am also convinced that Respondent's failure to show at least the same
spirit of accommodation in solving the problem of language communicating in bar-
38 St Loui8 Typographical Union No. 8, ITU, 149 NLRB 750.
39 The General Counsel argues that the background evidence relating to Respondent's con-
duct in December 1964 and January 1965 and the evidence relating to Rey's April 1965
conduct and statements relating to grievances constitute persuasive evidence revealing
Respondent's motivation to refuse to bargain in good faith. I agree, but I do not find it
necessary to consider such evidence in my determination of Respondent's conduct as
regards the attempt to initiate collective-bargaining negotiations . Its specific conduct
relating to the issue of bargaining is sufficient to determine that Respondent has not
bargained in good faith within the meaning of Section 8 ( a) (5) of the Act.
CALL, BURNUP, AND SIMS, INC. 1679
gaining as it does in solving communication problems involving work instructions
reveals that Respondent was not attempting in good faith to make itself available
so as to meet its statutory obligation to meet at reasonable times.40
Consistent with Board decisional law it may be stated that where a party by his
conduct reveals his unavailability for the affirmative performance of his statutory
obligation of meeting at reasonable times to confer in good faith-that such con-
duct constitutes an avoidance and frustration of the legal obligation to bargain.
Considering all of the foregoing, I conclude and find that the Respondent, com-
mencing on April 8, 1965,41 and at all times thereafter, has failed to bargain col-
lectively (in good faith) with the Union. Such conduct is violative of Section
8(a)(5) and (1) of the Act.42 I so conclude and find.
C. The unfair labor practice strike
1. Preliminary facts
As indicated previously, nine of Respondent's employees struck on July 23, 1965.
It may be summarized that during the period of time preceding and during the
aforesaid strike that Respondent's employees were familiar (1) with the fact that
Rey, Respondent's manager, had threatened them that Respondent would move
his equipment rather than deal with the Union; (2) with the fact that Respondent
had solicited their signatures to a repudiation of the Union; (3) with the fact that
Respondent had settled unfair labor practice charges pertaining to the Decem-
ber 1964 and January 1965 incidents and had posted notices designed to remove
from the employees' minds the effect of the December 1964 and January 1965
incidents referred to; (4) with the fact that Rey, despite the foregoing, had indi-
cated to the employees in April 1965 that he would not deal with union delegates
or the Union because there was no union contract; (5) with the fact that Pedro
Cortes Sanchez had kept them advised of the correspondence between the parties
and the respective positions of the parties as to the use of the English language or
the Spanish language in negotiations; 43 (6) with the fact that the Union was accus-
ing the Respondent of intentionally delaying the commencement of negotiations
and engaging in unfair practices; 44 (7) with the fact that the Union had submitted
an English translated copy of the Union's contract proposals to the Respondent;
and (8) with the fact that Respondent had indicated that there was no point in
further communication between the Union and the Respondent until the Union
agreed to negotiate for a contract in the English language.
2. Prelude of the strike-events of July 23, 1965, the unfair labor practice strike 45
For a period of 2 or 3 days some of the employees had reported to work and
had been sent home without working and told to report back the next day.
On the morning of July 23, 1965, as the employees arrived at the worksite, some
of the employees commenced discussing the situation of employees' reporting to
a By its insistence on the use of the English language the Respondent, under the facts
of this case, in effect was keeping itself unavailable. The Respondent's July 16, 1965,
letter which flatly revealed that further communication was futile unless the Union agreed
to negotiation in the English language, in and of itself, reveals an unwillingness to attempt
to solve the problem of language, and reveals that Respondent was not in good faith
attempting to make itself available so as to meet its statutory obligation
41I have considered the facts as a whole and am convinced that facts reveal that Re-
spondent's motivation from April 8, 1965, and thereafter was not to bargain in good faith.
4 Burgie Vinegar Company, 71 NLRB 829; St. Louis Typographical Union No. 8, ITU,
supra As indicated previously-in making the above findings and conclusions, I have not
considered the background evidence relating to Respondent's December 1964 and Jan-
uary 1965 conduct, or as to Rey's conduct in April 1965 relating to discussion with em-
ployees as to processing of grievances. Such evidence, however, strongly supports the
Decision herein
4s These facts are based upon Pedro Cortes Sanchez' credited testimony.
44 As indicated Pedro Cortes Sanchez advised the employee of the Union's April 15, 1965,
letter to the Respondent.
45 The facts as to the prelude to the strike, as to the events of July 23, 1965, and as to
the unfair labor practice strike are based upon a composite evaluation of (1) the credited
testimony of Jose de Leon Rodriguez, Roberto de Leon Rodriguez, Jose Torres Ortiz,
Armando Rey, and Pedro Cortes Sanchez, (2) the total consistency of all of the evidence,
and (3) a fair inference from such testimony and evidence.
1680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work and then being sent home. Ultimately there were 13 employees in the group
discussing what they felt to be problems. The employees discussed among them-
selves (1) their belief that Rey had made a promise of guaranteed working hours,46
(2) their belief that Rey was not living up to his promise of guaranteed working
hours, (3) their understanding that the Company had not met with the Union and
that there was no contract, (4) their belief that having a Union meant that they had
a right to have a contract, (5) their belief that there would not be a contract
because they believed the union president had "sold out" to the Company, (6)
their belief that they would have no assurances of work such as promised by Rey
without a contract, (7) their belief that they could not put up with the problems
concerning work assurances any longer without something decisive being done, and
(8) their belief that in order to have something decisive done they must tell Rey
that they would work if there were a contract-but would not work without a
contract.
Members of the group (13 employees) told each other not to work unless an
agreement with Rey was reached. The group (13 employees) decided to approach
Rey and to attempt to get an agreement , and if they could not, to strike. The
group (13 employees) decided to tell Rey that they would work with an agreement
but would not work without an agreement.
Around 7.30 a.m. on the morning of July 23, 1965, Pedro Cortes Sanchez, presi-
dent of the Union, arrived at the worksite and found the 13 employees in the proc-
ess of discussing their problems and their decision to strike. Pedro Cortes Sanchez
attempted to tell the employees the problems of strikes. The employees however
told Pedro Cortes Sanchez that they had lost faith in him because they believed he
had "sold" himself to the Respondent.
The group (13 employees) approached Rey and told him of the work assurance
problem and that they would work if there were an agreement and would not work
if there were not an agreement. Rey told the employees that the Respondent could
not do what they asked. Rey pulled out a sheet of paper and told them that those
with him should report to work and those who did not agree with him should leave.
Four of the employees in the group thereupon went to work and nine of the
employees went out on strike 47
During the period of time (July 23 to August 9, 1965) the Union furnished the
striking employees some financial assistance . Apparently during this same pe-
riod of time Pedro Cortes Sanchez discussed with the striking employees the idea of
returning to work, but the employees were of the opinion that they had to continue
the strike for a contract because of the conditions of work.
As indicated previously, the Union transmitted a letter on August 4, 1965, to
Manager Armando Rey advising in effect that the striking employees would return
to work at the usual time on August 9, 1965.
On August 9, 1965, striking employees Jose de Leon Rodriguez, Arsenio Bentan-
court, Roberto de Leon Rodriguez, Jose Torres Ortiz, Ramon Reinoso Pena, Jose
Ramos Popez, Lazaro Lopez, and Jose Bigio reported at the worksite. Jose de
Leon Rodriguez acted as spokesman for the employees and told Rey that they
wanted to go back to work. Rey told the group that he was sorry but that they
had already been replaced. The parties stipulated that striking employees Jose
de Leon Rodriguez, Arsenio Bentancourt, Roberto de Leon Rodriguez, Jose Torres
Ortiz, Ramon Reinoso Pena, Jose Ramos Lopez, Lazaro Lopez, and Jose Bigio all
made an unconditional application for reinstatement for their jobs and were told
their jobs were filled and that they had been replaced.
Considering all of the foregoing, I find that it is clear that the striking employees
believed that they had to strike in order to get the contract which they desired. I
am also convinced that Rey's April 1965 remarks to the effect that he would not
recognize a union delegate or a union without a contract and that he would not
deal with a union delegate as to grievances served as a contributing cause to their
belief that they had to have a contract in order to have work assurances and pro-
tection. Accordingly, I find that Respondent 's unfair labor practices by Rey as
set forth above constituted a contributing cause to the July 23, 1965, strike. Since
the employees felt they had to strike to obtain a contract under the circumstances
herein, it is also obvious that Respondent's refusal to bargain collectively with the
46 Related to the questions of hours of work or pay guaranteed if told to report to work.
47 Eight of the nine employees who went out on strike are the subject of the charges and
complaint in this matter. These eight are Jose de Leon Rodriguez , Arsenio Betancourt,
Roberto de Leon Rodriguez , Jose Torres Ortiz, Ramon Reinoso Pena , Jose Ramon Lopez,
Lazaro Lopez, Jose Bigio ( or Vigio).
CALL, BURNUP, AND SIMS, INC. 1681
Union, commencing on April 8, 1965, also served as a contributing cause to the
July 23, 1965, strike. Accordingly I find that the July 23, 1965, strike was an
unfair labor practice strike from its inception. I also find that the Respondent was
obligated to reinstate such unfair labor practice strikers upon their August 9, 1965,
unconditional offer to return to, work and that failure to reinstate such employees
at that time constituted a violation of Section 8 (a) (1) and (3) of the Act 48
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has violated Section 8(a)(3), (5 ), and (1) of the
Act, I will recommend that Respondent cease and desist therefrom from such vio-
lative conduct and take certain affirmative action designed to effectuate the policies
of the Act.
The Respondent appears to contend that the evidence that was adduced relating
to the conduct of Jose Ramos Lopez, Lazaro Lopez, and Ramon Reinoso Pena elim-
inated any obligation that Respondent had on August 9, 1965, or thereafter as to
reinstatement and backpay or as to bargaining with the Union. I find no merit in
Respondent's contention.
Apparently during the strike sometime between the end of July 1965 and shortly
after August 9, 1965,49 Manager Armando Rey was in the police station in Toa
Bajo, Puerto Rico. Also at the police station at this time were striking employees
Jose Ramos Lopez, Lazaro Lopez, Ramon Reinoso Pena, and other persons.
According to Rey's credited testimony, some of the persons there told him their
version of what had happened. What Rey was told is revealed by the following
excerpts from Rey's credited testimony:
Some of these boys, like I mentioned before, some of these persons that he
mentioned before waited for the boys at work at that time in the company, out
in the city, and hit them with a rock, with rocks, and with a piece of iron.
And some of them is accused with a gun and everything. One of our boys
was in the hospital for a couple of weeks.
Rey credibly testified to the effect that Jose Ramos Lopez, Lazaro Lopez, and
Ramon Reinoso Pena were charged with criminal violations at the time. Pedro
Cortes Sanchez credibly testified that he contributed $134 toward the cost of bail-
bond for the above referred-to employees.
Jose Ramon Lopez credibly testified to the effect that he was convicted of mali-
cious mischief , a criminal offense , and fined $50 for conduct arising out of the
strike. Jose Ramon Lopez testified that the incident involved in the criminal
charges occurred after August 9, 1965 .50
The Respondent introduced into evidence records of the District Court of Puerto
Rico, et al., at Toa Alta concerning the sentencing of Jose Ramon Lopez and
Ramon Reinoso Pena. The record pertaining to Jose Ramon Lopez reveals that the
charge was for malicous mischief, that on September 16, 1965, Jose Ramon Lopez
came before the court, that after the charge was read Jose Ramon Lopez pleaded
innocent , that after hearing the evidence , the court declared the accused (Jose
Ramon Lopez) guilty of the malicious mischief and sentenced the accused to a
penalty of $50 fine and 1 day in jail for each dollar not paid. The record pertain-
48 Respondent 's contentions as to alleged conduct of certain employees alleged to remove
the obligation to reinstate is set forth in the section of this report called "The Remedy."
49 Considering Rey's testimony as a whole as to dates of events and the consisteney as
to all the evidence, I find Rey's testimony unreliable to establish that the time that Rey
was in the police station was before August 9, 1965.
50 Jose Ramon Lopez' testimony as to dates did not appear reliable to so establish. I
am convinced that there is a high probability that he has confused the question asked as
being for the date of the trial of the incident.
243-084-67-vol. 159-107
1682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing to Ramon Reynoso 51 Pena reveals that the charge was for assault and serious
aggression, that on November 4, 1965 , Ramon Reynoso Pena came before the
court, that after the charge was read, Ramon Reynoso Pena pleaded not guilty, that
after hearing the evidence , the court found Ramon Reynoso Pena guilty of assault
and serious aggression and sentenced the accused to the penalty of $100 fine or 1
day in jail for each dollar not paid.
I note that when the employees on August 9, 1965, made their unconditional
offer for reinstatement to their jobs Rey said that he was sorry but that their jobs
had been filled, that they had been replaced. I find it hard to believe and do not
believe that Rey considered any incident of conduct as being his reason to tell the
employees that they had been replaced. Nor does the evidence submitted establish
that the employees had engaged in (prior to August 9 , 1965 ) conduct of such a
nature as to warrant a refusal to reinstate such employees.
Nor do I find the hearsay evidence and record of conviction submitted in this
case sufficient to reveal that the employees referred to engaged in conduct of such
a nature that they have lost their rights as unfair labor practice strikers. I note
that there are many criminal charges for which the question of provocation is not
applicable as a defense to the crime but is only to be considered as to the question
of sentencing . On the evidence in this record I do not find that the Respondent has
established facts to warrant a departure from the normal remedy. It very well may
be that the Respondent in the compliance stage of this proceeding can establish such
evidence and as a matter of policy be entitled to appropriate modification of its
obligation therein.
The Respondent contends that the foregoing evidence relating to conduct of cer-
tain employees warrants a deviation from the normal bargaining-type order. I do
not agree. As indicated above, the evidence is not sufficient to establish the facts
to so warrant a departure from the normal remedial requirements. Assuming the
facts were tied up so as to reveal that the named employees without provocation or
justification committed acts of violence against working employees, the evidence
that the union president personally from his own finances aided the individuals in
bailbond payments does not reveal that the Union initiated such conduct as a means
of self-help,52 or attempting by such means to seek its desired ends rather than
through the processes of the Board 53
Having found that Respondent since April 8, 1965, in connection with its failure
to attempt to solve the problem of language usage in negotiations, -has not made
itself available to perform its statutory obligation to meet at reasonable times to
confer in good faith and thereby has failed and refused to bargain collectively with
the Union as the exclusive representative of Respondent's employees in an appro-
priate unit, I will recommend that Respondent be ordered to make itself available
for negotiation meetings at reasonable times and otherwise to attempt to solve
language or other problems relating to commencement of negotiations, and to bar-
gain collectively, upon request, with the Union as the exclusive representative of its
employees and, if an understanding is reached, embody such understanding in a
signed contract 54
As indicated, it has been found that the strike (by employees-Jose de Leon
Rodriguez, Arsenio Betancourt, Roberto de 'Leon Rodriguez , Jose Torres Ortiz,
Ramon Reinoso Pena, Jose Ramon Lopez, Lazaro Lopez, and Jose Bigio) 55 which
took place on July 23, 1965, was caused by unfair labor practices of the Respond-
ent. As unfair labor practice strikers, Respondent's striking employees (referred to
above) were, upon their unconditional application for reinstatement on August 9,
1965, entitled to reinstatement, and Respondent's failure to reinstate any of them
was a violation of Section 8(a)(3) of the Act. I will recommend that Respondent
offer such referred-to employees as it has not reinstated immediate and full rein-
statement to their former or substantially equivalent positions, dismissing if neces-
ta Spelled Reinoso in the complaint in this matter.
52 This follows even if the evidence were to have established that the Union furnished
such bail bond money.
sa The facts in this case are more similar to the facts in United Mineral & Chemical
Corporation, 155 NLRB 1390, and are dissimilar to the facts in Laura Modes Company, 144
NLRB 1592 , argued by the Respondent.
64 The very nature of collective bargaining would imply that the probabilities of solu-
tion of problems being solved in face-to-face meetings are higher than when solution is
attempted at a distance or by written correspondence.
M It is not absolutely clear whether this employee 's name is Bigio or Viglo . In any event
the reference Bigio herein is intended to suffice for either spelling.
CALL, BURNUP, AND SIMS, INC. 1683
sary any employees hired since July 23, 1965. If after such dismissal there are
insufficient positions remaining for all these referred -to employees , the available
positions shall be distributed among them, without discrimination because of their
union membership or activity, or participation in the strike, in accordance with
such system of seniority as has heretofore been applied in the Respondent's busi-
ness. Those strikers (referred to herein) for whom no employment is immediately
available after such distribution shall be placed upon a preferential hiring list with
priority among them determined by such system of seniority,as has heretofore been
applied in the conduct of Respondent's business, and thereafter, in accordance with
such list, shall be offered reinstatement as positions become available, and before
other persons are hired for work. Reinstatement, as provided herein, shall be with-
out prejudice to the employees' seniority or other rights and privileges.
I will also recommend that the Respondent be required to make the referred-to
striking employees whole for any loss of pay they may have suffered by reason of
Respondent's discrimination against them. This shall be done by payment to each
of them of a sum of money he normally would have earned from August 9, 1965,
to the date of reinstatement or placement upon a preferential hiring list, less his
net earnings. The backpay provided herein shall be computed in accordance with
the formula set forth in F. W. Woolworth Company, 90 NLRB 289, with interest
thereon. Isis Plumbing & Heating Co., 138 NLRB 716.
As the unfair labor practices committed by the Respondent were of a nature
which go to the very heart of the Act, I will recommend that the Respondent cease
and desist therefrom and cease and desist from infringing in any other manner on
the rights of employees guaranteed by Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Union Obreros Cemento Mezclado is now, and has been at all times material
herein, a labor organization within the meaning of Section 2(5) of the Act.
2. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
3. By interfering with, restraining, and coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a)(1) of the
Act.
4. By refusing to reinstate unfair labor practice striking employees on August 9,
1965, upon their unconditional application for reinstatement to their jobs, Respond-
ent has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (3) and (1) of the Act.
5. All employees-working for the Respondent in its concrete pumping operations
in Puerto Rico, exclusive of office clerical employees, professional personnel,
guards, and supervisors as defined in the Act, constitute a unit appropriate for the
purpose of collective bargaining within the meaning of Section 9(b) of the Act.
6. Union Obreros Cemento Mezclado, at all times since January 29, 1965, has
been the exclusive representative of all employees in the aforesaid appropriate unit
for the purpose of collective bargaining within the meaning of the Act. The afore-
said Union since March 1, 1965, has been certified as the exclusive collective-
bargaining representative of the employees in said appropriate unit within the meaning
of the Act.
7. By refusing to bargain collectively on April 8, 1965, and thereafter, as to the
terms and conditions of employment of employees in the appropriate bargaining
unit, the Respondent has engaged in unfair labor practices within the meaning of
Section 8 (a)(5) of the Act.,
8. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of, law and
upon the entire record in this case , it is recommended that Respondent , its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Union Obreros Cemento Mezclado, or in any
other labor organization , by refusing to reinstate or in any other manner discrimi-
nating against . any employee in regard to hire, tenure of employment, or any term
1684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or condition of 'employment except to the extent that such may be done pursuant to
an agreement' requiring membership in a labor organization as a condition of
employment, as authorized in Section 8(a)(3)' of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
(b) Refiisipg to make itself available for negotiating meetings and otherwise not
attempting to,solve language or other problems relating to commencement of actual
negotiations, and from refusing to bargain collectively concerning rates of pay,
wages, hours of employment, and other terms and conditions of employment, with
Union Obrero"s Cemento Mezclado, as the exclusive bargaining representative of its
employees in the appropriate, bargaining unit described above.
(c)- Threatening its employees that it will not recognize or deal with their collective-
bargaining representative (the Union), or with the collective-bargaining rep-
resentatives' delegates or stewards, or in any other manner interfering with, restrain-
ing, or coercing its employees' in the exercise of their rights guaranteed in Section 7
of the Act,' except as may be done as a result of the effect on such rights of an
agreement requiring membership in a labor organization as a condition of employ-
ment, as authorized' in Section 8(a)'(3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative actions which are designed to effectuate the
policies of the Act:
(a) Make itself available for negotiating meetings at reasonable times and other-
wise attempt to solve language or other problems relating to commencement of
negotiations, and to bargain collectively, upon request, with Union Obreros
Cemento Mezclado, as the exclusive collective-bargaining representative of all the
employees in the appropriate bargaining unit described below, and embody any
understanding reached in a signed contract.
The appropriate collective-bargaining unit is defined as follows:
All employees working for Call, Burnup, and Sims, Inc., in its concrete pump-
ing operations in. Puerto Rico, exclusive of office clerical employees, profes-
sional personnel, guards, and supervisors as defined in the Act.
(b) Offer Jose de Leon Rodriguez, Arsenio Betancourt, Roberto de Leon Rodri-
guez, Jose Torres Ortiz, Ramon Reinoso Pena, Jose Ramon Lopez, Lazaro Lopez,
and Jose Bigio immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority and other rights and
privileges, and make each of them whole for any loss of pay they may have
suffered by reason of the discrimination against them, all in accord with and in the
manner set forth in the section of this ' Decision entitled "The Remedy."
(c) Notify the above-named employees if presently serving in the Armed
Forces of the United States of their right to full reinstatement upon application in
accordance with the Selective Service Act and the Universal Training and Service
Act, as amended, after discharge from the Armed Forces.
(d) Preserve and, upon request, make available to the Board and its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary or useful to
determine the amount of backpay due.
(e) Post at its principal place of business at Isla Grande Airport, Santurce,
Puerto Rico, English and Spanish copies of the attached notice marked "Appen-
dix." 56 Copies of said notice, to be furnished by the Regional Director for Region
24, after being duly signed by the Respondent, shall be posted by the Respondent
immediately upon receipt thereof and maintained by it for 60 consecutive days
,thereafter, in conspicuous places, where notices are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that said notice is not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 24, in writing, within 20 days from
the date of this Recommended Order, what steps the Respondent has taken to com-
ply herewith 57 -
sa In the event that this Recommended order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's order is enforced
by a decree of a United States Court of Appeals the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
67 In the event that this' Recommended Order is adopted by the Board, this provision
,shali'be modified to lead : "Notify said Regional Director, in writing,'within' 10 days from
the date'of this Order, what steps the Respondent has taken to compis"h'erewith.
CALL, BURNUP„ AND SIMS, Inc. . 1685
1. 1
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial' Examiner' of the National
Labor Relations Board, and in order to effectuate the policies of the National
Labor Relations Act, as amended, we hereby notify our employees that:
WE WILL make ourselves available for negotiating meetings at reasonable
times and otherwise attempt to solve language or other problems relating to
commencement of negotiations, and bargain collectively, upon request, with
Union Obreros Cemento Mezclado as the exclusive collective-bargaining repre-
sentative of all the employees in the appropriate bargaining unit described
below, and embody any understanding reached in a signed contract.
The appropriate collective-bargaining unit is:
All employees working for Call, Burnup , and Sims, Inc., in its concrete
pumping operations in Puerto Rico, exclusive of office clerical employees,
professional personnel , guards, and supervisors as defined in the Act.
WE WILL offer Jose de Leon Rodriguez, Arsenio Betancourt, Roberto de
Leon Rodriguez, Jose Torres Ortiz, Ramon Reinoso Pena, Jose Ramon Lopez,
Lazaro Lopez , and Jose Bigio , immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice to their seniority
and other rights and privileges , and make each of said employees whole for
any loss of pay he may have suffered by reason of our discrimination against
him, all in accord with and in the manner set forth in the section of the
Trial Examiner's Decision entitled "The Remedy."
WE WILL notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to reinstatement upon appli-
cation in accordance with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge from the Armed Forces.
WE WILL NOT discourage membership in the Union Obreros Cemento Mez-
clado, or in any other labor organization, by refusing to reinstate or in any
other manner discriminating against any employee in regard to hire , tenure of
employment, or any term or condition of employment except to the extent
that such may be done pursuant to an agreement requiring membership in a
labor organization as a condition of employment as authorized in Section
8(a)(3) of the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
WE WILL NOT threaten our employees that we will not recognize or deal
with their collective-bargaining representative (the Union), or with the collective-
bargaining representatives ' delegates or stewards , nor will we in any other man-
ner interfere with, restrain, or coerce our employees in the exercise of their
rights guaranteed in Section 7 of the Act, excepting as may be done as a result
of the effect on such rights of an agreement requiring membership in a labor
organization as a condition of employment , as authorized in Section 8(a)(3)
of the Act, as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
All of our employees are free to become or remain, or refrain from becoming
or remaining members of Union Obreros Cemento Mezclado, or any other labor
organization, except to such extent as such rights may be affected by an agree-
ment requiring membership in a labor organization as a condition of employment,
as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
CALL, BURNUP AND SIMS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
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.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, P.O.
Box 11007, Fernandez Juncos Station, Santurce, Puerto Rico 00910, Telephone
724-7171.