Carib Inn of San Juan

National Labor Relations Board - Board Decisions

Nov 22, 1993

312 N.L.R.B. 1212 (N.L.R.B. 1993)

1212
312 NLRB No. 200
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel’s motion to strike the Respondent’s brief is
denied.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
The Respondent contends that the judge’s ‘‘effectiveness to make
credibility resolutions on the personal observations of the witnesses
was . . . dampened by his lack of knowledge of the Spanish Lan-
guage.’’ The Board has held, however, that the conduct of its pro-
ceedings in English, with the concomitant use of a translator, is not
a ground for overturning credibility resolutions. See generally Union
Nacional de Trabajadores, 219 NLRB 862 fn. 2 (1975).
The Respondent further argues that the judge was biased and prej-
udiced towards its case in that he allegedly fell asleep during its
cross-examination of the General Counsel’s witnesses. The General
Counsel contests the Respondent’s assertion in his answering brief.
In rejecting the Respondent’s argument, we stress that the Respond-
ent raised no objection to the judge’s alleged conduct during the
hearing itself, as would have been proper under the Board’s Rules
and Regulations. See, e.g., Secs. 101.10(b) and 102.41. We also find,
based on our review of the entire record, that there is no evidence
here demonstrating that the judge was biased and prejudiced against
the Respondent’s position.
Additionally, the Respondent asserts that the judge erred in finding
that it did not hire any of its predecessor’s employees who had
worked as service employees. Although the Respondent did hire a
few of these unit employees, the record shows that they worked in
either managerial or supervisory jobs after the Respondent assumed
control of the facility.
While noting that Gloria Pantojas became personnel manager for
the hotel when the Respondent began operations on June 1, 1986,
the judge incorrectly stated that Pantojas held this position until
April 30, 1986. The record, though vague on this subject, suggests
that Gloria Pantojas served as personnel director for at least several
years. In any event, we find that correction of the judge’s
misstatement is insufficient to affect his ultimate conclusions here.
3 In adopting the judge’s finding that the Respondent violated Sec.
8(a)(3) of the Act by refusing to consider for hire or to hire any of
its predecessor’s service employees in unit jobs, we stress that, as
the judge found, the Respondent failed to rebut the General Coun-
sel’s prima facie case of unlawful discrimination as required by
Wright Line, 251 NLRB 1083 (1980). However, we find it unneces-
sary to rely on the judge’s analysis insofar as he stated that: (1) ‘‘it
appears more ‘logical’ that management might have been a cause of
the [predecessor’s] bankruptcy rather than the work habits of service
employees’’; (2) the Respondent’s failure to hire these employees for
unit jobs was ‘‘‘inherently destructive’ of important employees’
rights’’; and (3) ‘‘[t]he Respondent did not explain with any credible
evidence why the workers chosen to be employed at its hotel were
better qualified or would have been superior employees to those
which it rejected.’’
4 In the remedy section of his decision, the judge based the
discriminatees’ backpay and reinstatement rights on the collective-
bargaining agreement between the Respondent’s predecessor and the
Union. We note, however, that the bankruptcy trustee lawfully termi-
nated this agreement on March 20, 1986. Nevertheless, based on our
finding that the Respondent discriminatorily refused to consider for
hire or to hire any of its predecessor’s employees, we conclude that
the Respondent was not entitled to set initial terms of employment
without first consulting the Union. See Love’s Barbeque Restaurant
No. 62, 245 NLRB 78, 82 (1979). Accordingly, we shall order the
Respondent to cancel, on request by the Union, any changes in the
employees’ wages and benefits that the Respondent made when it
began operating the hotel on June 1, 1986, and to make these em-
ployees whole for any losses they suffered because of these unilat-
eral changes.
5 Although the judge found that the Respondent violated Sec.
8(a)(1) of the Act in certain respects, he inadvertently failed to in-
clude a provision in his recommended Order and notice requiring
that the Respondent cease and desist from such conduct. We shall
modify the judge’s Order and notice accordingly.
6 See generally Isis Plumbing Co., 138 NLRB 716 (1962). Under
New Horizons, interest is computed at the ‘‘short-term Federal rate’’
Horizons Hotel Corporation d/b/a Carib Inn of San
Juan and Union de Trabajadores de la
Industria Gastronomica de Puerto Rico, Local
610, Hotel Employees and Restaurant Employ-
ees International Union, AFL–CIO. Case 24–
CA–5423
November 22, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On January 15, 1993, Administrative Law Judge
Lowell M. Goerlich issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief to
the Respondent’s exceptions.1
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings,2 and conclusions,3 to provide a new
remedy,4 and to adopt the recommended Order as
modified below.5
REMEDY
Having found that the Respondent has violated Sec-
tion 8(a)(1), (3), and (5) of the Act, we shall order it
to cease and desist and to take certain affirmative ac-
tion designed to effectuate the purposes of the Act.
Having found that the Respondent discriminatorily
refused to consider for hire or to hire employees for-
merly employed by its predecessor because of their
union affiliation, we shall order the Respondent to
offer all individuals who would have been hired on
and after June 1, 1986, employment in the positions
for which they would have been hired absent the Re-
spondent’s unlawful discrimination or, if those posi-
tions no longer exist, to substantially equivalent posi-
tions, dismissing, if necessary, any and all persons
hired to fill such positions. We shall also order the Re-
spondent to make whole all individuals whom it would
have hired absent this unlawful discrimination for any
loss of earnings and other benefits they may have suf-
fered as a result of the Respondent’s conduct. Backpay
shall be computed in accordance with the formula set
forth in F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest as prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).6
1213CARIB INN OF SAN JUAN
for the underpayment of taxes as set out in the 1986 amendment to
26 U.S.C. § 6621. Interest accrued before January 1, 1987 (the effec-
tive date of the amendment) shall be computed as in Florida Steel
Corp., 231 NLRB 651 (1977).
7 The remission of any wage and benefit loss that these employees
incurred is to be applied consistently with the make-whole remedy
set forth above with respect to the discriminatees.
Having found that the Respondent also has unlaw-
fully refused to bargain collectively with the Union,
we shall order that the Respondent, on request, recog-
nize and bargain collectively in good faith with the
Union in the service and casino bargaining units con-
cerning rates of pay, wages, hours, and other terms and
conditions of employment which the Respondent
would have been required to bargain had the Union’s
lawful status been acknowledged on June 1, 1986—the
date that the Respondent began operations at the hotel.
In addition, we shall order the Respondent to cancel,
on request by the Union, any changes in wages and
benefits that the Respondent made when it began oper-
ations; to make whole the service unit employees for
any losses they suffered because of these unilateral
changes from June 1, 1986, until the Respondent nego-
tiates in good faith with the Union to agreement or to
impasse; and to make whole similarly the casino unit
employees for any changes that occurred from the date
the Respondent began operations until it ceased casino
operations on June 23, 1986.7 Because the casino bar-
gaining unit no longer exists, we shall also order the
Respondent, in the event it reestablishes a casino on
the hotel premises, to recognize and bargain with the
Union concerning these employees and to offer em-
ployment to those former casino employees listed as
discriminatees in Exhibit C of the judge’s decision.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Hori-
zons Hotel Corporation d/b/a Carib Inn of San Juan,
Carolina, Puerto Rico, its officers, agents, successors,
and assigns, shall take the action set forth in the Order
as modified.
1. Insert the following as paragraph 1(a) and reletter
the subsequent paragraphs accordingly.
‘‘(a) Creating the impression of surveillance of the
employees’ union activities, threatening employees
with discharge because of their union activities, and
denigrating the Union in the eyes of the employees.’’
2. Insert the following as paragraphs 2(c) and (d),
and reletter the subsequent paragraphs accordingly.
‘‘(c) On request by the Union, cancel any changes
in wages and benefits for the service and casino unit
employees that the Respondent made when it began
operations on June 1, 1986. Make whole the service
unit employees for any losses they suffered because of
these unilateral changes from the date the Respondent
began operations, until the Respondent negotiates in
good faith with the Union to agreement or to impasse,
and similarly make whole the casino unit employees
from June 1, 1986, until the Respondent ceased casino
operations on June 23, 1986.
‘‘(d) In the event the Respondent reestablishes a ca-
sino on its hotel premises, recognize and bargain with
the Union concerning these employees and offer em-
ployment to those former casino employees listed as
discriminatees in Exhibit C of the judge’s decision.’’
3. Substitute the attached Appendix D for that of the
administrative law judge.
APPENDIX D
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT create the impression of surveillance
of our employees’ union activities, threaten our em-
ployees with discharge because of their union activi-
ties, or denigrate the Union in the eyes of our employ-
ees.
WE WILL NOT discourage membership in Union de
Trabajadores de la Industria Gastronomica de Puerto
Rico, Local 610, Hotel Employees and Restaurant Em-
ployees International Union, AFL–CIO or any other
labor organization by discriminatorily refusing to hire
applicants for employment or by unlawfully discrimi-
nating in any other manner in regard to their hire, ten-
ure, or terms and conditions of employment.
WE WILL NOT refuse to bargain collectively concern-
ing rates of pay, wages, hours, and other terms and
conditions of employment with the Union as the exclu-
sive representative of our employees at our hotel.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
WE WILL offer immediate employment to the fol-
lowing named persons to the jobs they would have
filled had they been lawfully hired, or to substantially
equivalent positions, without prejudice to their senior-
ity or any other rights or privileges previously enjoyed,
discharging, if necessary, any employees hired since
June 1, 1986, and make them whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against them, in the manner set forth in
the remedy section of this decision and to otherwise
comply fully with the remedy.
Carmen Ojeda Margarita Claussell
Maria Caldero Frank Rosado
1214 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On the request of the Respondent, parties were permitted to file
reply briefs.
Mineroa Vazquez Ramon Luis Rosario
Tomasa Garcia Blas Ortiz
Beatriz Hiraldo Jose Justiniano
Tomasina Garcia Raul Velazquez
Candida Santana Julio Rodriguez
Carmen M. Colon Orlando Trinidad
Isabel Rodriguez Maximino Carbo
Gloria Concepcion Delia A. Osorio [Ana
Juana Ayala Delia]
Felix B. Ramos Aurea Santana
Miguel Andrillon Emerita Escudero
Jesus Terreforte Ramon Matos Cintron
Julio Vega Hiram M. Miranda
Esmelin Santos Francisco Jimenez
Manuel Vazquez Heriberto Trujillo
Felix Ramirez Hector Guevarez
William Rivera Ana M. Guariola
Rafael Matos Monserrate Colon
William Martinez Conchita Rodriguez
Carmen De Jesus Maria De Jesus
Lydia Noguera Ana Verte Calderon
Matilde Ramos Gloria Caballero
Elba Iris Verdejo Domingo P. Morales
Sarah Algarin Victor Cruz
Filiberto Jaime Basilisa Rivera Garcia
Jesus Diaz Juanita Hernandez
Remuel Q. Perez Carlos Gonzalez
Juan M. Colon Roberto Perira
Carmelo J. Caldera Fernando V. Vazquez
Norberto A. Cruz Valentian Hernaiz
Isaias Diaz Virella Delgado
Iris C. Hernandez
WE WILL, on request, bargain collectively with the
Union as the exclusive representative commencing as
of June 1, 1986, of all our employees in the units
found appropriate.
WE WILL, on request, cancel any changes in wages
and benefits for the service and casino unit employees
that we made on beginning our operations, and WE
WILL make whole the service unit employees for any
losses they suffered because of these unilateral changes
from June 1, 1986, until we negotiate in good faith
with the Union to agreenment or to impasse, and WE
WILL similarly make whole the casino unit employees
from June 1, 1986, until we ceased casino operations
on June 23, 1986.
WE WILL, on reestablishing a casino on our hotel
premises, recognize and bargain with the Union con-
cerning these employees and offer employment to
those former casino employees listed above against
whom we have discriminated.
Angel Valencia-Aponte, Esq., for the General Counsel.
Luis F. Padilla, Esq., of Hato Rey, Puerto Rico, and Benito
Fernandez, for the Respondent.
Ruben Davila, of Santurce, Puerto Rico, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
LOWELL M. GOERLICH, Administrative Law Judge. The
original charge filed by Union de Trabajadores de la
Industria Gastronomica de Puerto Rico, Local 610, Hotel
Employees and Restaurant Employees International Union,
AFL–CIO (the Union) on August 6, 1986, was served on
Horizons Hotel Corporation d/b/a Carib Inn of San Juan (the
Respondent) by certified mail on or about the same date. An
amended charge filed by the Union on September 30, 1986,
was served on the Respondent by certified mail on October
1, 1986. The first amended charge filed by the Union on
March 20, 1987, was served on the Respondent by certified
mail on the same date. The second amended charge filed by
the Union on December 11, 1987, was served on the Re-
spondent on December 14, 1987. A complaint and notice of
hearing was issued September 30, 1986. An amended com-
plaint and notice of hearing was issued on December 21,
1987. In the amended complaint, among other things, it was
alleged that the Respondent as the successor to bankrupt
Carib Inn of San Juan Corp. a/k/a Carib Inn of San Juan
Prinair Hotel Corp. of P.R., Racket Club Hotel (the prede-
cessor) was obligated to bargain collectively with the Union
and, in filling its complement of employees, discriminated
against the predecessor’s employees all in violation of Sec-
tion 8(a)(1), (3), and (5) of the National Labor Relations Act
(the Act). The Respondent filed a timely answer alleging that
it had not engaged in the unfair labor practices alleged.
The matter came on for hearing on March 6–10, April 17,
November 20–22 and 24, 1989; April 4, August 13–16, Oc-
tober 18, 1990; and March 11–13 and 15, 1991. Two hearing
sessions were held at Eglin Air Force Base Federal Prison
Camp, Fort Walton, Florida, and April 4 and October 18,
1990, all other sessions were held at Hato Rey, Puerto Rico.
Each party was afforded a full opportunity to be heard, to
call, to examine and cross-examine witnesses, to argue orally
on the record, to submit proposed findings of fact and con-
clusions, and to file briefs.
Thereafter, on August 22, 1991, I approved, on agreement
of the parties, an order conditionally approving withdrawal
request pursuant to settlement agreement, a copy of which is
attached as Exhibit A.
On October 22, 1991, the General Counsel filed an appli-
cation for reinstatement of instant charge for further proceed-
ings. On December 12, 1991, an Order to Show Cause why
the application should not be granted was issued. On January
17, 1992, it was ordered that ‘‘the Order Conditionally Ap-
proving Withdrawal Request Pursuant to Settlement Agree-
ment entered on August 22, 1991 be revoked and hereby is
and a date for filing briefs on the merits of the case is set
for February 18, 1992.’’ Thereafter the General Counsel and
the Respondent filed briefs and reply briefs.1 All briefs have
been carefully considered.
On the entire record in this case and from my observation
of the witnesses and their demeanor, I make the following
1215CARIB INN OF SAN JUAN
2 The facts found are based on the record as a whole and the ob-
servation of the witnesses. The credibility resolutions have been de-
rived from a review of the entire testimonial record and exhibits,
with due regard for the logic of probability, the demeanor of the wit-
nesses, and the teachings of NLRB v. Walton Mfg. Co., 369 U.S.
404, 408 (1962). As to those witnesses testifying in contradiction of
the findings, their testimonies have been discredited either as having
been in conflict with the testimonies of credible witnesses or because
the testimony was in and of itself incredible and unworthy of belief.
All testimony has been reviewed and weighed in the light of the en-
tire record. No testimony has been pretermitted.
3 On or about February 28, 1986, Horizons Investors Corp. offered
to purchase the assets of Carib Inn of San Juan Corp., in the United
States Bankruptcy Court for the District of Puerto Rico in a Chapter
7 proceeding in a case entitled ‘‘In Re: Carib-Inn of San Juan Corp.,
Debtor, No. B–81–00273(B), Chapter 7.’’
On May 14, 1986, Horizons Hotel Corporation d/b/a Carib Inn
Tennis Club and Casino of San Juan, the Respondent, purchased the
assets of Carib Inn of San Juan Corporation from a trustee of the
United States Bankruptcy Court for the District of Puerto Rico. Pur-
suant to the provisions of a deed, the trustee was given a 2-week
grace period to surrender the hotel property which term expired on
May 31, 1986. By order dated June 6, 1986, the bankruptcy court
confirmed the Respondent’s purchase of the hotel.
4 Had the collective-bargaining agreement not been terminated, it
would have expired on May 31, 1988.
FINDINGS OF FACT,2 CONCLUSIONS, AND REASONS
THEREFOR
I. THE BUSINESS OF THE RESPONDENT
At all times material, the Respondent, a corporation orga-
nized under the laws of the Commonwealth of Puerto Rico,
has been engaged in providing facilities for lodging, enter-
tainment, food, beverage, and related services and operates a
facility located at Isla Verde Road, Carolina, Puerto Rico
(the hotel).
In the course and conduct of its business operations de-
scribed above, the Respondent, during the last 12-month pe-
riod, derived gross revenues in excess of $500,000 and, dur-
ing the same period of time, purchased and received goods
and products valued in excess of $50,000 directly from sup-
pliers located outside the Commonwealth of Puerto Rico.
The Respondent is, and has been at all times material, an
employer engaged in commerce and a business affecting
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is now, and has been at all times material, a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
First: In or about November 1985, Bankruptcy Judge Wil-
liam Beckerleg ordered the then Chapter 7 trustee, Hector
Rodriguez-Estrada, to sell or liquidate the assets of a hotel
owned by Carib Inn of San Juan Corporation d/b/a Carib Inn
Hotel and Casino. Prior to this period, the hotel had been ad-
ministered by various owners and involved in numerous
bankruptcy proceedings.
On or about May 14, 1986, the Respondent purchased the
business of Carib Inn of San Juan Corp. a/k/a Carib Inn of
San Juan Prinair Hotel Corp. of P.R., Racket Club Hotel (the
predecessor), from Hector Rodriguez-Estrada, trustee in
bankruptcy (Rodriguez-Estrada), and since June 1, 1986, has
continued to operate the business of Carib Inn in basically
unchanged form as it had been previously operated by Carib
Inn and Rodriguez-Estrada except that the casino license of
the predecessor expired on June 23, 1986, and thereafter the
casino ceased operations. At the time of the purchase
Rodriguez-Estrada operated and managed the assets of the
predecessor and was involved in the sale of the assets as
trustee appointed by the bankruptcy court. Prior to the sale
several bids were submitted for the purchase.3 The Respond-
ent’s bid was accepted. Prior to finalizing the purchase, Be-
nito Fernandez, president of the Respondent, and other Re-
spondent representatives visited the hotel premises on many
occasions.
In respect to these matters before me, the parties stipulated
as follows:
Horizons Hotel Corporation, d/b/a Carib Inn Tennis
Club and Casino, and/or Carib Inn Tennis Club & Re-
sort, hereinafter called Respondent, a corporation orga-
nized under the laws of the Commonwealth of Puerto
Rico in April 7, 1986, has been engaged in providing
facilities for lodging, entertainment, food, beverage, and
related services and operates a hotel located at Los
Gobernadores Avenue, Carolina, Puerto Rico, herein
called the hotel.
In May 1981 Carib Inn of San Juan Corporation, a
separate and distinct corporation organized under the
laws of Puerto Rico which operated the hotel whose
business is described above, filed a petition for bank-
ruptcy under 11 U.S.C. Chapter 11.
On November 21, 1985, the Chapter 11 proceeding
was converted to a Chapter 7 proceeding.
On November 21, 1985, Hector Rodgriguez Estrada
was appointed by the bankruptcy court as trustee in
bankruptcy for the Carib Inn of San Juan Corporation.
From November 21, 1985 through May 31, 1986,
Hector Rodriguez Estrada, continued the operations of
the hotel business of Carib Inn in basically unchanged
form and in an interrupted manner.
On May 14, 1986 Carib Inn of San Juan Corporation
sold its hotel facilities to Respondent. . . .
Since June 1, 1986 Respondent has continued the op-
erations of the hotel.
On June 1, 1986 Gloria Pantojas became Respond-
ent’s Personnel Manager, a position she held until April
30, 1986.
On March 20, 1986 Hector Rodriguez Estrada termi-
nated, under Title 11, Chapter 7, Section 365 of the
Bankruptcy Act, the collective bargaining agreement
between the Union and Carib Inn for the service and
maintenance unit.4
1216 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 The units are as follows:
SERVICE UNIT
Included: All employees employed by Respondent at its Hotel
in Isla Verde, San Juan, Puerto Rico, in the following depart-
ments; Housekeeping, food and beverage (including food and
beverage checkers and cashiers), repair and maintenance, laun-
dry and valet, pool (including lifeguards), storekeeping, uniform
service, telephone department employee, employees in the ad-
ministrative and general department, front office employees, of-
fice clerical employees and secretaries.
Excluded: Executive personnel, professional personnel, pool
manager, security employees, comptroller or auditor, assistant
comptroller or assistant auditor, night auditor, accounts payable
supervisor, accounts receivable supervisor, credit manager, time-
keeper, personnel director, Tennis Professional, Assistant Tennis
Professional, front office manager, Head Cashier Checker, head
front office cashier, head food and beverage cashier (both day
and night), payroll supervisor, head of storerooms and receiving,
food and beverage comptroller, assistant food and beverage
comptroller, assistant manager and maitre d’ of the banquet of-
fice, executive chef, assistant maitre d’, and the secretaries to
manager, personnel director, comptroller or auditor, food and
beverage manager, room division manager, sales manager and
banquet manager, assistant payroll supervisor, guards and super-
visors as defined in the Act.
CASINO UNIT
Included: All croupiers, apprentice croupiers and casino at-
tendants employed by Respondent at the Hotel.
Excluded: All office clerical employees including cashiers, all
other employees, professional personnel, guards and supervisors
as defined in the Act.
6 Because the Respondent was unable to obtain a license, the ca-
sino discontinued on June 23, 1986.
7 See Inland Container Corp., 275 NLRB 378 (1985).
8 The Respondent concedes in its Br. 40, ‘‘The Courts and Board
alike have held however, that where the Union would have enjoyed
majority status but for the new employer’s discriminatory refusal to
hire, the successor will ordinarily be subject to a bargaining order.’’
9 Fernandez defined ‘‘due diligence’’: ‘‘We had to make an inde-
pendent appraisal for ourselves as to the worth of what the property
was so as to be able to compose a bid to submit to the Bankruptcy
Court.’’
From June 14, 1979, through May 31, 1986, the
Union was the representative for the purpose of collec-
tive bargaining of the employees in the service and ca-
sino employees units, by virtue of Section 9(a) of the
Act.5
Respondent, since June 1, 1986, has continued the
business operation previously conducted by Carib Inn
of San Juan Corporation at the same hotel facilities,
with basically the same equipment, furniture and move-
able goods, offering basically the same services except
the operation of a casino6 to the same sort of potential
customers, same telephone numbers, and without inter-
ruption of services.
The following employees, who had been employed by the
Carib Inn of San Juan Corporation, continued in the employ-
ment of the Respondent: Gloria Pantojas continued as per-
sonnel director or manager; Angel Rosario continued as secu-
rity chief; Ramon Pantojas or Ramon Pantojas Rivera contin-
ued as night auditor and manager; Gilberto Santa continued
as pool manager; Aida Ocasio continued as executive house-
keeper; Osvaldo De Graci continued as security guard; Juan
Gomez continued as resident manager; and Rodriguez-
Estrada as consultant and then general manager. Few, if any,
rank-and-file service and maintenance employees continued
with the Respondent. A majority of the employees put to
work by Horizons in the service unit would have been the
predecessor’s employees if the Respondent had not been
guilty of unlawful discrimination (see infra). The restaurants
were continued without change. The Respondent used the
same advertising agency and the same nonunion and union
classifications were continued.
In regard to the casino unit, 14 employees of the prede-
cessor were put to work by the Respondent. Because the Re-
spondent employed not more than 24 employees in the unit,
a majority of the employees was continued in the casino unit.
Although the Respondent claims that it did not operate the
casino after June 1, 1986, it has produced no credible evi-
dence to support this claim. On the other hand Resident
Manager Gomez testified that the Respondent operated the
casino. Filiberto Jaime-Ortiz, a casino employee, testified
that on May 31, 1986, he observed a list in the casino em-
ployees’ restroom ‘‘[s]tating the names of the persons who
had been recruited by the new corporation.’’ Jaime-Ortiz fur-
ther testified that Rafi Diaz, who had been his ‘‘immediate
boss,’’ was recruited by Rodriguez-Estrada for employment
with the Respondent. Moreover, the 14 above-mentioned em-
ployees appeared on the first payroll of the Respondent’s
workers along with employees in the service unit.
Both in the service unit and the casino unit there was
‘‘substantial continuity in identity of the employing enter-
prise.’’7
Both units satisfy the requirements for successor units as
set forth in NLRB v. Burns Security Services, 406 U.S. 272
(1972). See also Fall River Dyeing Corp. v. NLRB, 482 U.S.
27 (1987). Although the Respondent did not put to work a
majority of the employees of the predecessor in the service
unit it is, nevertheless, held to be a successor because had
it not engaged in discriminatory hiring tactics a majority of
the employees in that unit would have been the predecessor’s
employees (see infra). ‘‘It is well established that where the
other requisite elements for finding successorship are present,
a new owner’s failure to hire its predecessor’s employees
will not defeat a claim of successorship if such failure is
shown to have been motivated by the former employees’
union affiliation. . . . When a successor employer has dis-
criminated in hiring, it can be inferred that substantially all
the former employees would have been retained absent the
unlawful discrimination.’’ American Press, 280 NLRB 937,
938 (1986).8 Accordingly, the Respondent, as successor em-
ployer, violated Section 8(a)(5) by refusing to bargain with
the Union for the service and casino units and by refusing
its request for bargaining rights.
Second: Benito Fernandez, president of Horizons, the suc-
cessful bidder of the Carib Inn, testified: ‘‘We began doing
our due diligence9 and looking at the property of the Carib
Inn Hotel about November or December of 1985. And that
process continued until May 31st of 1986 when we took over
the property effective June 1, 1986.’’ The Respondent’s bid
for the hotel was made ‘‘sometime in February 1986.’’
Fernandez testified that the Respondent considered in propos-
ing its final bid: ‘‘There was an appraisal that had been pre-
1217CARIB INN OF SAN JUAN
10 Six employees testified that Fernandez had never spoken to
them. Some testified that they had never seen him talking to employ-
ees. Juan Gomez, who was hired as the Respondent’s resident man-
ager, testified that during the 12 days prior to June 1, 1986, when
he was on the payroll of the trustee he saw Fernandez ‘‘once or
twice, he was in the office all the time with Rodriguez-Estrada.’’ I
credit the foregoing testimony.
11 Gomez testified, ‘‘I was hired for Horizons Hotel Corporation,
I wasn’t hired for the Bankruptcy Court.’’
12 It would appear that this rationalization is not well taken since
first, Gomez testified that he did not need the job since he had an-
other in the offering; second, it seems plausible that Rodriguez-
Estrada could have operated 12 days without a resident manager as
he had been doing; and third, Gomez did little work as a resident
manager for Rodriguez-Estrada.
13 The credibility of Quinones is challenged. I have carefully
viewed her demeanor and attitude (as I did with all witnesses) and
measured her testimony against the testimony of other witnesses and
weighed it in the light of the record as a whole, I find Quinones
to be a truthful witness and I credit her and discredit any witness
who testified in contradiction of her testimony as credited. As to
Fernandez, he appeared a very intelligent and able person but a dis-
ingenuous witness; his testimony was conditioned so as to support
the Respondent in this case. As to Rodriguez-Estrada, he, by de-
meanor and attitude and by apparent sympathy with the Respond-
ent’s objectives, appeared to be an unreliable witness lacking vera-
ciousness. I did not believe him where his testimony was not cor-
roborated by other credible testimony or evidence in the record as
a whole.
14 Rodriguez-Estrada testified that Quinones was referred to him
by Hugo Valasco, a friend of ‘‘25 years.’’
15 The ‘‘temp’’ industry refers to a business which supplies tem-
porary employees, who do not work on a permanent basis, for an
employer.
pared by an independent licensed real estate appraiser by the
name of McCluskey which penetrated into our consideration,
our physical observation of the condition of the physical
plant of the hotel, the financial statements, the history of the
hotel in the past four or five years, its current occupancy rate
and its current standing as a hotel in Puerto Rico what the
marketplace thought of the hotel and the problems we fore-
saw in making this hotel an adequate profitable hotel prop-
erty. All these items went into the consideration of how we
compiled that final bid.’’
Prior to the takeover of the hotel according to Fernandez,
‘‘I tried every facility the hotel used from staying in every
floor of the hotel to check out the rooms, from using the
pool, from going to the restaurants. There are two res-
taurants, a Chinese and a Coffee Shop. To the gym, to even
the stores that were in the facility.’’
During the period while Fernandez was on the hotel prem-
ises prior to takeover, he testified that he spoke ‘‘to all em-
ployees, supervisors and non-supervisors.’’10 He also con-
ferred with Rodriguez-Estrada, the trustee who was operating
the hotel. In fact, he hired Rodriguez-Estrada as a consultant
for the Respondent ‘‘to provide a better transition period for
the corporation.’’ Later Rodriguez-Estrada became manager
of Horizons.
Third: During the period after the Respondent’s acquisition
of the hotel but before the Respondent took over operations,
Fernandez and Rodriguez-Estrada occupied adjacent offices
in the hotel and shared the same secretary. Rodriguez-Estrada
hired Juan Rafael Gomez on May 19, 1986, as resident man-
ager. He was on the trustee’s payroll until May 31, 1986,
and thereafter he became resident manager for the Respond-
ent until August 27, 1986. The hiring of Gomez was ap-
proved by Fernandez. All employees were informed of this
event in writing in which appeared the signature of
Rodriguez and the signature approval of Fernandez. Gomez
was told he would keep his job with the Respondent.11
Fernandez testified that he approved Gomez’ hire because
‘‘He [Rodriguez-Estrada] brought it to [his] attention that he
could not hire a resident manager and that he needed [his]
assistance otherwise he wouldn’t be able to hire a resident
manager’’ and that the time with the trustee’s operation
would have been too short to have attracted an applicant.12
Rodriguez-Estrada testified in reference to the hiring of
Gomez, ‘‘Mr. Fernandez asked me to get somebody to con-
tinue the operation after I leave.’’
Fourth: Gomez testified, ‘‘I was hired to work for Hori-
zons starting June 1st. So what I did on those 12 days I was
in the office all the time working on the schedules, working
on the marketing plan, working on those things we were
going to use starting June 1st.’’ This work was being per-
formed for the Respondent.
Gomez also testified that Rodriguez-Estrada chose the
managerial staff for the Respondent and discussed the super-
visors to be hired with Gomez including Theresa Capo and
Ramon Pantojas, ‘‘in charge of Food and Beverage.’’
Rodriguez-Estrada also offered supervisory jobs to Ramon
Maysonet and Felix Ramirez, a waiter, to work for the Re-
spondent after the Respondent ‘‘took over the hotel.’’ Ac-
cording to Gomez, Rodriguez-Estrada was the ‘‘highest rank-
ing managerial officer’’ of the Respondent on June 1–3,
1986, which position he continued to hold. He was the gen-
eral manager.
Fifth: On April 3, 1986, Rodriguez-Estrada met with
Ileana Quinones,13 general manager of the Professional Em-
ployment Center (PEC), at the hotel. Quinones explained that
Rodriguez-Estrada had spoken to Hugo Valasco,14 ‘‘who
happened to be a friend of his . . . that we had an agency
and Hugo told—they spoke and Hugo told me that Rodriguez
Estrada was waiting for my call.’’ Quinones called
Rodriguez-Estrada and made an appointment with him to dis-
cuss what services PEC could offer the Respondent. At a
meeting on April 3, 1986, Rodriguez-Estrada told Quinones
that ‘‘the reason why he wanted [her] services was because
a new management had come into the hotel and would be
hiring new people.’’ At the time Quinones was not aware
that Rodriguez-Estrada was a trustee in bankruptcy. He ap-
peared to her to be the ‘‘top man at the company. He was
running the show.’’
According to Quinones, Rodriguez-Estrada said ‘‘he would
try to do business with us if he could pretty much be guaran-
teed that there would be no risk of having a union.’’ ‘‘[H]e
asked me . . . in the temp industry15 . . . ‘Do you have
Unions? Is there a chance for a Union?’ I said, ‘No.’ Be-
cause in the nature of our industry, its never been heard of
and he said, ‘Put it in writing,’’’ that ‘‘there was no possibil-
ity for a union.’’ Other matters in relation to PEC’s prospec-
tive services were also discussed. Rodriguez-Estrada told
Quinones ‘‘to put it in writing because he wanted to discuss
this with Ben Fernandez.’’ The next day a letter dated April
4, 1986, was directed to Hector Rodriguez-Estrada, Horizons
Hotel, signed by Ileana Quinones. Enclosed with the letter
was a description of the items covered in the Quinones-
1218 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 The enclosure is attached and marked Exh. B.
17 It is not clear in the record as to why Rodriguez-Estrada made
the request but it is clear that photographs would have identified the
predecessor’s service employees whom the Respondent failed to hire.
18 From this testimony it would appear that Fernandez, along with
Rodriguez-Estrada, participated in the formation of the arrangements
with PEC. On June 19, 1985, Quinones addressed a letter to Doel
Sanchez, Comptroller, Horizons Hotel, Inc., a part follows:
Enclosed are invoices with the corresponding charges for serv-
ices. This also serves to remind you that the matter for the
guarantee of the payroll payment is still pending to be solved,
this should be resolved within the next few days.
As it had been mentioned in the initial accord, it was agreed
that PEC would select the personnel in accordance to its cri-
teria and knowledge in human resources. Contrary to this ac-
cord, you selected the personnel and only about 10 from the
ones we had interviewed and qualified for these purposes. We
understand that in this group of persons recruited by you there
are several who are ‘‘non-grata’’ and because of cir-
cumstances beyond our control, we are unable to dispense
with their services, as it would normally occur if we had [sic]
complete control of ‘‘our’’ personnel. This offers a completely
different picture to what was foreseen, as the risk is much
more greater than what it should have been if we had had the
freedom that we should have with all our personnel. This serv-
ice is more like a payroll service, more so as we do not have
the absolute control of the personnel. We could guarantee the
price of $4.85 for persons earning a salary of $3.35 if for this
personnel payment for sick leave and vacations is not in-
cluded. These benefits do not start retroactively until the third
month of employment, in accordance with the labor laws.
19 Fernandez further testified as to the people referred by PEC ‘‘I
mean I just interviewed the file from an experience point of view
and then I decided which ones we were going to hire and which we
were not from PEC.’’
20 The names generally were not names of employees who were
working for the predecessor.
21 However, David Garcia, a holdover who took Ramirez’ job as
bell captain, testified that he never received a termination letter.
Virgilio Quinones Huertas, a holdover who was listed as a houseman
on G.C. Exh. 18, testified that he never received a termination letter.
Rodriguez-Estrada conversation. Some advantages were list-
ed. The first ‘‘particular’’ was ‘‘There is no possibility of a
Union.’’16
Thereafter, PEC placed advertisements and started to inter-
view and send candidates to the hotel for Rodriguez-Estrada
‘‘who had, at this point in time, I believe, turned over a lot
of the recruiting operation over to [Mr.] Gomez.’’ Quinones
testified that Rodriguez-Estrada ‘‘made . . . photographs of
every person that solicited, attached to the—to the applica-
tion, so he would recognize [the] people.’’17
Early on Quinones understood that PEC would do the hir-
ing for Horizons and recommended people it felt qualified.
This procedure was not followed; the Respondent selected its
own personnel and did its own hiring. In regard to Quinones,
Fernandez testified: ‘‘She interpreted the contract to mean
that she had the authority to hire people. I took that in the
conversation when she became very angry was that she
thought she had the right to hire employees and I said no,
no, no, you have the right to refer employees to me, I’ll
make the determination of who gets hired.’’18 However,
Fernandez testified that Quinones did put ‘‘quite a few peo-
ple’’ on the payroll.
Quinones described to what level PEC’s function was re-
duced,
All we were doing is supplying them [Respondent’s
workers] with their paycheck . . . we supplied the hotel
with timecards which were to be filled by the employ-
ees and signed by the supervisors and by the employee
and those time cards would be returning to us weekly
and from there we would proceed to . . . [m]ake out
the pay checks . . . we would pay them and the hotel
would pay us right away.
Quinones testified, ‘‘We proceeded under the instructions
of Rodriguez-Estrada.’’ ‘‘I don’t know what his position
was. I know that he was my contact. He was the one I dealt
with and you know, as far as I know, he was the decision
maker.’’
PEC was told who to hire. Quinones testified that
Rodriguez-Estrada ‘‘went over the list and told me who was
going to be on the payroll.’’ According to Fernandez, PEC
first believed that it was to do the hiring. According to
Fernandez, ‘‘What made PEC unhappy was that I made the
final decision as opposed to them making the decision [for
hiring]. . . . I was the line on them to locate experienced
people.’’19
During the period of recruiting, Quinones was called from
the hotel by the ‘‘girl that was representing the company that
worked for us as a recruiter.’’ She informed Quinones that
‘‘she had gotten instructions that henceforth, they would be
told who would be put on [the] payroll.’’ Quinones imme-
diately went to the hotel. She met with Rodriguez-Estrada.
Gomez was present. Rodriguez-Estrada gave her a list of em-
ployees who were ‘‘going to be put on the payroll.’’
Quinones identified this list as General Counsel’s Exhibit
18.20 Some of the employees’ names, General Counsel’s Ex-
hibit 18, appear on the Respondent’s first payroll which was
carried by PEC. Quinones testified, ‘‘We accepted applica-
tions from all the people but interviews were never exe-
cuted.’’
The predecessor’s employees were informed by
Rodriguez-Estrada on May 5, 1986, that they were separated
from employment and the Respondent would operate with its
own personnel.21
On May 21, 1986, Rodriguez-Estrada addressed the fol-
lowing memorandum to ‘‘all employees.’’
As is known by all of you, the firm Horizons Hotels
Corp. recently purchased the Carib-Inn Hotel. Said en-
terprise has the intention of operating this hotel with its
own management and its own personnel.
Our management and our personnel terminates its
duties at this hotel next May 31, 1986. Horizons Hotels
begins on June 1, 1986.
For the purposes of recruiting its own personnel, Ho-
rizons Hotels has established a recruiting office of its
employees at the Lobby of Coral Beach Condominium,
Manuel Mercado & Associates’ office, at Isla Verde,
near the Carib-Inn. Said recruiting center will be
opened starting tomorrow, Thursday until Friday from
9:00 a.m. to 4:00 p.m.
I suggest you ask your respective department heads
to allow you to fill out your applications for employ-
ment as soon as possible, if you are interested in con-
tinuing to work at this hotel. As far as we are con-
1219CARIB INN OF SAN JUAN
22 I consider Gomez a credible witness.
23 Some names he recognized and recalled were Julio Vega from
the front office, Domingo Morales, and Delia Osorio, telephone op-
erator.
24 Fernandez testified as follows:
A. They were given—my recollection is that PEC would give
those applications which is what they were to Juan Gomez. Juan
Gomez then gave them all to me, not all at the same time but
during a few days’ period of time I then received all of the ap-
plications. [Fernandez also testified that he did not ‘‘personally
have knowledge’’ of Gomez’ interviewing people.]
Q. Okay. What—was there any particular reason why Gomez
received those applications?
A. Yeah, because he would either interview those employees
that the applications referred to or he would talk to them or he
would talk to PEC who had interviewed them.
Q. Okay. And then did Mr. Gomez have occasions to talk to
you about what he talked to PEC?
A. Yes, he did.
25 Fernandez testified:
Q. What do you recall was, if anything, and what was your
participation, if any, in that determination as to who was to be
hired or not to be hired?
A. I’m the one who gave him [Gomez] the piles. There were
two piles with folders with a rubberband around each and I told
him that these people are to be hired, these people are not to
be hired. [Emphasis added.]
26 Because Horizons hired none of the predecessor’s personnel for
jobs in the service unit, it would appear that the pages of the alleged
notebook (which did not appear in the hearing) was wanting in ‘‘best
employees.’’
27 Fifteen persons on the list appear on the PEC invoice listing 58
employees who worked for the first week after June 1, 1986.
cerned, I am authorizing the department heads to allow
you to carry out such endeavors in an orderly manner.
[G.C. Exh. 2(b).]
Quinones described PEC’s participation in this endeavor,
‘‘that was another day that I was called to the office and told
that Janet, my employee, had to go to a condominium right
across the street of the hotel. . . . Coral Beach . . . at a real
estate office and that employees from the hotel were going
to be able to fill their applications there to solicit employ-
ment.’’ Quinones visited Coral Beach and observed persons
filling out applications. PEC interviewed none of these per-
sons who filled out applications for hotel jobs. After the ap-
plications were taken, PEC was told ‘‘who would work and
who would not.’’ Quinones testified, ‘‘After we got finished
there [Coral Beach], we went to the hotel and that’s when
they picked out the people and we were told what people
would work.’’ Gomez testified that Janet from PEC handed
him two piles of applications and that ‘‘one of them had a
rubber band around it and she told [him] that no people from
that pile was to be interviewed or was not to be hired.’’ PEC
did no interviewing of employees.
The credible record establishes that the persons listed in
Exhibit C attached hereto placed applications for employ-
ment with the Respondent.
Sixth: About 5 or 6 days before the end of May 1986,
Rodriguez-Estrada asked Gomez22 to ‘‘start working on . . .
a list of employees that were going to be needed to operate
the hotel when Horizons would take over.’’ Gomez furnished
a list of the number of employees needed in the departments
to Rodriguez-Estrada except it did not include the casino and
security departments. After Gomez gave the list to
Rodriguez-Estrada, a few days later, he gave Gomez ‘‘an-
other computer printout list with some names crossed out,’’
2 or 3 days before before May 31, 1986. These names
Gomez recognized as present employees of the hotel.23 After
Gomez received the list ‘‘we start the interviews for the peo-
ple that was to be hired . . . the people that did file applica-
tions at PEC offices.’’ According to Gomez, he ‘‘did these
interviews. . . . A girl from PEC was sitting next to me all
that time but . . . she didn’t interview no one of them. . . .
We were interviewing people that had been provided by PEC
but I did not interview no one at all that used to work [for]
the hotel before. Not even one.’’24 None of the predecessor’s
employees were called for employment interviews. The inter-
views took place in the ‘‘hotel conference room’’ about 3
days before May 31, 1985. ‘‘[T]here were two piles of appli-
cations. They both were being handled by the girl from PEC.
One of them had a rubberband25 around it and she told me
that no people from that pile was to be interviewed or was
not to be hired. She mentioned [that to me] . . . [t]he other
pile belonged to people that was staying—waiting to be
interviewed. People that was brought into the office or the
conference room by PEC. They were called by PEC.’’
Rodriguez testified that he had no ‘‘input’’ in the hiring
of employees for the Respondent. However, he saw the ‘‘list
of Mr. Fernandez addressed to Juan Gomez.’’ ‘‘Made to se-
lect the people who would stay and the ones would not
stay.’’ According to Rodriguez-Estrada, the criteria
Fernandez used for hiring the employees was ‘‘four months
walking upon down around the hotel, I think.’’ ‘‘[H]e told
me that he was taking names and interviewing people. And
he was going to make a list of the best employees to be
hired by his corporation.’’ Fernandez carried ‘‘a notebook’’
in his hand. However, Rodriguez had difficulty recalling the
names of employees Fernandez interviewed.26
Fernandez testified that he ‘‘made that decision [to hire]’’
the Respondent’s employees. How he came to his decision,
Fernandez described:
I consulted with supervisors that existed at the Carib
Inn prior to June 1, 1986. I consulted with some of my
associates that had observed employees during that pe-
riod of time. I reviewed the applications obtained by
professional employment census and based on all those
things I then came to the conclusion and also under the
factor of the number of people that our corporation
needed to begin operations, taking into consideration all
those factors. I then made the decision of the number
of people that were going to be hired and who specifi-
cally is going to be hired.
General Counsel’s Exhibit 18 is a list of people who were
going to be hired. According to Fernandez, he prepared and
finalized the list around the ‘‘end of May [1986],’’ and de-
livered it to Gomez.27 The reason former hotel employees
were not hired as explained by Fernandez, ‘‘Because we
didn’t need all of them. Second, we considered the fact that
the hotel had been in bankruptcy for so long that part of the
reasons why the hotel was in bankruptcy was that the em-
ployees were not tending to the needs of the guests.’’ Further
testifying, Fernandez stated ‘‘we never really were concerned
with the union or not with the union.’’ However, Fernandez
1220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
28 Apparently Fernandez’ alleged final work product had been
‘‘mostly’’ composed prior to the receipt of the applications of the
predecessor’s employees for he testified:
Q. Okay. So in other words when you got all the applications
from the former Carib Inn employees and when I say former I
mean those people that have been, you know, employed during
April, May of the Carib Inn, you had already a list of the people
that you were, you know, going to employ out of that pack of
applications, is that correct?
A. Well, a mostly completed list, not an absolutely finished
list but a mostly completed list.
29 ‘‘Idiot, stupid fool.’’
30 This testimony was proffered by the General Counsel and re-
jected.
knew there was a union in the hotel. Fernandez testified that
around 100 employees worked for Carib Inn at the time of
Horizons’ takeover. Of these employees, Fernandez testified
that he talked to between 30 to 35 at the jobsite. ‘‘At least
[he] asked [him] his or her name,’’ others he observed, ‘‘It
is reduced down to a list that we had given you. Those em-
ployees that I finally hired, that was the final work product28
. . . Exhibit No. 18.’’ While Fernandez said he had talked
to maids on the floor he could not name one. Some employ-
ees he ‘‘hired direct for Horizons Hotel Corporation.’’
The credible record reveals that Rodriguez-Estrada,
Gomez, Fernandez, and representatives of PEC all partici-
pated to some degree in the selection of the employees who
filled the Respondent’s jobs. Although Fernandez’ testimony
is somewhat conflicting, Fernandez apparently participated in
and ratified the hiring procedure. Nevertheless, it does seem
certain that Fernandez was the one who decided to avoid hir-
ing the predecessor’s service employees to escape the con-
sequences of union representation.
Virgilio Quinones Huertas, who was a carryover, testified,
‘‘I hadn’t known Mr. Fernandez. All I know is Mr.
Rodriguez Estrada. He is the one that’s my boss. He is the
one that gives me the food that I eat.’’
Seventh: According to Gomez, Ramon Pantojas was the
‘‘Night Auditor and the Night Manager’’ for Carib Inn
whose services were continued in the same capacity for the
Respondent. Gomez discussed hiring Pantojas with
Rodriguez three or four times in May 1986. According to
Gomez, Pantojas was ‘‘in charge of the nightly operations
while the General Manager and the Resident Manager are not
at the hotel.’’
According to Domingo Morales, he worked 2 days a week
for Pantojas as assistant who assigned him his work and to
whom he went to request time off. Gomez testified that
Pantojas was in charge of the night shift. From May 18 to
31 Pantojas gave instructions and assigned work.
Felix Ramirez testified that Pantojas was the night man-
ager and ‘‘ordered to have the rooms cleaned.’’ Ramirez
conversed with Pantojas around May 20, 1986, at the hotel.
Pantojas told employees ‘‘Horizons wants no employee that
has backed up the Union or is backing up the Syndicate. Be-
cause this enterprise does not want [a] Union.’’ ‘‘[W]e were
going to be thrown out like bags.’’ Ramirez also testified
that Pantojas told him that ‘‘he was the pet boy of Horizon’’
and that ‘‘Rodriguez-Estrada . . . had given him all the au-
thority to check that the union—that the Union members
would not infiltrate staying there to work.’’ Pantojas denied
he made the above statement. His denial is not credited.
Eighth: Maria Isabel DeJesus Rivera, an employee at Carib
Inn for around 20 years and delegate for the Union for about
15 years, was a maid in the housekeeping department. In
May 1986, about 2 weeks before her discharge, Rodriguez-
Estrada told her while she was in the cafeteria that he was
celebrating the sale of the hotel and that ‘‘they were nego-
tiating with him for him to stay.’’ DeJesus Rivera also testi-
fied that she overheard a conversation sometime thereafter in
May. ‘‘I have to take the Union out of here,’’ and in which
Rodriguez-Estrada said, ‘‘I have to take all the ‘pendejos’29
out of here.’’
Ninth: Frankie Rosado Garcia (Rosado) was a waiter at the
Carib Inn in the La Pinaja cafeteria. He had been the
Union’s general delegate or steward for around 12 years.
While he was in the cafeteria in May 1986, Rodriguez-
Estrada said to him ‘‘you betrayed me.’’ Thereafter Rosado
Garcia went to Rodriguez-Estrada’s office where Rodriguez-
Estrada said ‘‘if they [the Union] continued to bother him
that [I] was going to fire them all [all the workers] and to-
morrow he would place a letter in their hand.’’ On another
occasion in May 1986, Rodriguez-Estrada said ‘‘there was no
Union in Puerto Rico that would defend us.’’
Tenth: Carlos Gonzalez-Camacho conversed with Rafi
Diaz, casino manager, at a time when ‘‘he was going to be
the Manager of the Casino. . . . [H]e was hired by the Hori-
zons company to work with them and he was at the hotel
in his own office, asking and asking questions about the per-
sonnel.’’
Gonzalez-Camacho asked Diaz for a job with Horizons
when he received no answer to his application. Diaz replied
that he ‘‘didn’t want me there.’’ Gonzalez-Camacho was a
union member.30
Eleventh: On May 21, 1986, a meeting occurred between
Valentin Hernandez (sometimes called Chiro Hernandez),
secretary-treasurer of the Union, and General Steward Felix
Ramirez, Rodriguez-Estrada, and Gomez. Among other
things Hernandez was told by Rodriguez-Estrada that ‘‘any-
thing that [he] would like to talk about the administration of
the hotel, [he] had to speak it with or talk about it with Mr.
Gomez.’’ When leaving, Hernandez was asked to return to
Rodriguez-Estrada’s office. Rodriguez-Estrada indicated that
he was ‘‘going to recommend to Horizon[s] not to employ
or hire Mr. Frankie Rosado, and neither Carmelo Caldera,
because fellow-worker Carmelo Caldera was too ‘jodon’
[pest or pain-in-the-ass, troublesome].’’ Hernandez asked
Rodriguez-Estrada whether this recommendation was because
Rosado had been a member of the Union’s board of directors
and because Caldera was a member of the board of directors.
Rodriguez-Estrada ‘‘remained silent.’’ Rodriguez-Estrada
also informed Hernandez that ‘‘Horizons was going to hire
its own employees.’’
Twelfth: Felix Ramirez testified that when he talked to
Rodriguez-Estrada about going to Coral Beach to file an ap-
plication for employment, Rodriguez-Estrada said that ‘‘he
had authorization to be in charge of selecting the employ-
ees.’’
Ramirez testified as to what occurred when he was fired:
On the 31st at 3 o’clock in the afternoon, when I was
finishing my shift, Mr. Velazquez was coming in to re-
lieve me. When I came out, a security officer, called
Mr. Rosario who was also an intelligence officer for the
1221CARIB INN OF SAN JUAN
31 The scheme Rodriguez-Estrada worked out with Quinones to
avoid hiring the employees who had been covered by the service
unit contract was adopted and implemented by the Respondent.
Police Department of Puerto Rico, together with an-
other security officer, Mr. Martino, gave me my enve-
lope with my wages and they told me that they were
very sorry. . . . You are dismissed from the hotel. You
have your wages here. Horizons does not want you
anymore because you are too faithful to the Union. And
they gave me my salary, almost we can say, I had one
to each side like if we were prisoners and they ordered
me that I could not go back ever again to the hotel be-
cause I had embraced the employees on the 29th, when
they were fired.
Thirteenth: According to Ruben Davila, when the Union
learned that there was going to be a change of ownership it
started to collect ‘‘union cards.’’
The Question of Jurisdiction
The Respondent asserts that ‘‘the NLRB has no subject
matter jurisdiction to oversee the conduct of a trustee in
Bankruptcy.’’ Thus, the Respondent urges that the Board has
no jurisdiction to entertain a suit which involves a trustee in
bankruptcy as is the situation in the instant case and that
only the bankruptcy court has jurisdiction to adjudge the
case.
This contention was decided adversely to the Respondent
in the case of In re Carib-Inn of San Juan Corp., 905 F.2d
561, 563–564 (1st Cir. 1990). The court opined:
Furthermore, if the facts warrant a finding that the con-
duct of the bankruptcy trustee was performed on behalf
of the purchaser and amounted to an unfair labor prac-
tice, the proposition that an order of the bankruptcy
court could protect the purchaser from the con-
sequences under the National Labor Relations Act
would be untenable.
The Respondent’s objection is not well taken.
The Agency of Rodriguez-Estrada
Section 2(13) provides:
In determining whether any person is acting as an
‘‘agent’’ of another person so as to make such other
person responsible for his acts, the question of whether
the specific acts performed were actually authorized or
subsequently ratified shall not be controlling.
The following factors in the credible record establish that
Rodriguez-Estrada was an agent of the Respondent.
Rodriguez-Estrada and Fernandez occupied adjacent of-
fices in the hotel and shared a secretary; they were seen to-
gether at the hotel many times; Rodriguez-Estrada hired
Gomez with Fernandez’ approval as resident manager for the
Respondent’s operation; employees were informed that
Fernandez approved Gomez’ appointment; Rodriguez-Estrada
procured PEC and worked out the details with Fernandez’
apparent approval for PEC’s recruitment and hiring of work-
ers for the Respondent’s hotel operation and the placement
of them on PEC’s payroll; the interviews of employees for
jobs were conducted in the hotel conference room where they
could have been observed by employees; Rodriguez-Estrada
requested Quinones to come to the hotel on several occasions
and to participate in the solicitation of work applications of
the predecessor’s employees; Rodriguez-Estrada participated
in the selection of supervisors who were hired by the Re-
spondent; Rodriguez-Estrada asked Gomez to ‘‘start working
on . . . a list of employees that were going to be needed to
operate the hotel when Horizons would take over’’;
Rodriguez-Estrada gave Gomez a list of applicants to be
hired by Horizons; the Respondent offered Rodriguez-Estrada
a job as a consultant and then general manager of the hotel;
employees believed that Rodriguez-Estrada would continue
in the employment of Horizons as he did, although
Fernandez must have known that the observations of employ-
ees and others of Rodriguez-Estrada’s activity would have
lead them to believe that Rodriguez-Estrada was acting for
the Respondent, Fernandez did nothing to disavow the Re-
spondent’s connection with Rodriguez-Estrada.
The fact that Rodriguez-Estrada was also acting as a trust-
ee in bankruptcy is immaterial. See In re Carib-Inn of San
Juan, supra.
I find that Rodriguez-Estrada was an agent of the Re-
spondent and that the Respondent was bound by his acts as
detailed. See Lemay Caring Center, 280 NLRB 60 (1986),
enfd. sub nom. Dasal Caring Centers v. NLRB, 815 F.2d 711
(8th Cir. 1987).
Rodriguez-Estrada as an agent acted as much more than a
conduit for information; his activities allied him to and made
him part of management. Cf. LTV Electrosystems, 169 NLRB
532, 534 (1968). The credible evidence is that Rodriguez-
Estrada was acting on behalf of Horizons; there is no credi-
ble evidence that he was acting independently on behalf of
himself or as trustee in respect to matters herein detailed
which relate to the Respondent. Nor was his posture as an
agent ever disavowed by the Respondent to Quinones,
Gomez, the employees, or any others. His efforts on its be-
half were accepted, ratified, and implemented by the Re-
spondent.31
The Supervisory and Agency Status of Pantojas
A ‘‘supervisor’’ is defined in Section 2(11) of the Act as:
any individual having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall, pro-
mote, discharge, assign, reward, or discipline other em-
ployees, or responsibly to direct them, or to adjust their
grievances, or effectively to recommend such action, if
in connection with the foregoing the exercise of such
authority is not of a merely routine or clerical nature,
but requires the use of independent judgment.
The law on the subject is well summarized by Administra-
tive Law Judge Itkin in the case of Amperage Electric, 301
NLRB 5 (1991):
Actual existence of true supervisory power is to be dis-
tinguished from abstract, theoretical or rule book au-
thority. It is well established that a rank and file em-
ployee cannot be transformed into a supervisor merely
by investing him or her with a ‘‘title and theoretical
power to perform one or more of the enumerated func-
1222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
32 ‘‘Pendejos’’ according to the interpreter meant idiot, stupid, or
fool.
tions.’’ NLRB v. Southern Bleachery & Print Works,
Inc., 257 F.2d 235, 239 (C.A. 4, 1958), cert. den. 359
US 911 (1959). What is relevant is the actual authority
possessed and not the conclusory assertions of wit-
nesses. And while the enumerated powers listed in Sec-
tion 2(11) of the Act are to be read in the disjunctive,
Section 2(11) also ‘‘states the requirement of independ-
ence of judgment in the conjunctive with what goes be-
fore.’’ Poultry Enterprises, Inc. v. NLRB, 216 F.2d 798,
802 (C.A. 5, 1954). Thus, the individual must consist-
ently display true independent judgment in performing
one or more of the enumerated functions in Section
2(11) of the Act. The performance of some supervisory
tasks in a merely ‘‘routine,’’ ‘‘clerical,’’ ‘‘perfunctory’’
or ‘‘sporadic’’ manner does not elevate a rank and file
employee into the supervisory ranks. NLRB v. Security
Guard Service, Inc., 384 F.2d 143, 146–149 (C.A. 5,
1967). Nor will the existence of independent judgment
alone suffice; for ‘‘the decisive question is whether [the
individual involved] has been found to possess author-
ity to use [his or her] independent judgment with re-
spect to the exercise [by him or her] of some one or
more of the specific authorities listed in Section 2(11)
of the Act.’’ See NLRB v. Brown & Sharpe Manufac-
turing Co., 169 F.2d 331, 334 (C.A. 1, 1948). In short,
‘‘some kinship to management, some empathetic rela-
tionship between employer and employee, must exist
before the latter becomes a supervisor of the former.’’
NLRB v. Security Guard Service, Inc., supra.
The following factors establish that Pantojas was a super-
visor within the meaning of the Act.
Gomez testified that Pantojas was in charge of the night
operations; he was the only person present representing the
Employer; he exercised the highest supervisory authority
over the night workers; employees worked under his direc-
tion; he assigned work; and he granted time off to employ-
ees.
I find that Pantojas was a supervisor within the meaning
of the Act. I do not find that the credible evidence estab-
lishes that Pantojas was an agent of the Respondent prior to
June 1, 1986.
Alleged Violations of Section 8(a)(1)
A. Complaint Paragraph 11(a)
The allegations of paragraph 11(a) are planted on the al-
leged misconduct of Pantojas which occurred prior to June
1, 1986. Because I have found that Pantojas was not an agent
of the Respondent prior to June 1, 1986, I dismiss the allega-
tions in paragraph 11(a).
B. Complaint Paragraph 11(c)
Paragraph 11(c) alleges that the Respondent, acting
through Rodriguez-Estrada, unlawfully threatened to dis-
charge employees.
This allegation is planted on Rodriguez-Estrada’s state-
ment to an unidentified person overheard by DeJesus to wit;
‘‘I [had] to take all the ‘pendejos’32 out of here’’ and ‘‘I
have to take the Union out of here.’’ Rodriguez-Estrada’s
words were apparently addressed to an unidentified person.
Because there is no proof that the remarks were addressed
to an employee or that the speaker was aware that an em-
ployee was listening or that he would have reason to believe
that his remarks, as uttered, and to whom uttered, would
have a tendency to coerce, restrain, or interfere with employ-
ees’ Section 7 rights, I dismiss paragraph 11(c).
C. Complaint Paragraph 11(d)
This paragraph alleges that Rodriguez-Estrada created an
unlawful impression of surveillance and threatened employ-
ees with unlawful discharges. This allegation is based on the
following statement contained in the affidavit of Milagros-
Rivera dated September 2, 1986, the content of which she
could not remember:
Rodriguez answered that he was also going to sign a
deed and showed me a check for $36,000 and some pa-
pers where there were several signatures. Mr.
Rodriguez also remarked, ‘‘I do not stay as owner, but
I stay as director of the hotel.’’ That the employees
who signed cards, he added, ‘‘he was going to screw.’’
When he said this remark I defended the casino fellow
workers, reminding him that those in the casino had not
signed cards. Mr. Rodriguez then told me that he had
a list of those who had signed cards.
The affidavit was offered by the General Counsel as past
recollection recorded. It was rejected. Because there is no
proof in the record to support the allegations, I dismiss para-
graph 11(d).
D. Complaint Paragraph 11(e)
In this paragraph it is alleged that through Rodriguez-
Estrada the Respondent created an unlawful impression of
surveillance, unlawfully threatened employees, and deni-
grated the Union by making derogatory statements about the
Union.
The facts offered to support this allegation are as follows:
Frankie Rosado Garcia, herein referred to as Rosado,
was an employee of the predecessor and worked as a
waiter at La Pinaja, the cafeteria. Rosado was a stew-
ard. Around May 12 or 13, 1986, the president of the
Union was seated in the cafeteria. Rosado testified
‘‘When I finished with the President of the Union I
went towards the cashier. And then he [Rodriguez-
Estrada] went by me and he said, ‘aha, you betrayed
me.’’’ Later in the day Rosado went to Rodriguez-
Estrada’s office. ‘‘I asked him why he said that I had
betrayed him. And he said Diaz [the Union’s president]
had come to stop the hotel. And I said to him no, that
he had only come because of the election. And then he
told me that if they continued to bother him that he was
going to fire them all [the workers] and tomorrow he
would place the letter in their hand.’’
Thereafter, in May, Rosado conversed again with
Rodriguez-Estrada in La Pinaja. Rosado testified:
1223CARIB INN OF SAN JUAN
33 The testimony of Rosado is credited. 34 Ramirez is credited as to these events.
I remember that Mr. Rodriguez-Estrada came to the
room to eat, that he usually came in to eat. And how
are the elections, and I said that they were all right.
And then he said that the Union was not backing us.
And I said why not. Then he told us that if he would
have been the one for the Union, he would have gotten
for us what was owed to us from the Federal Court. He
said that there was no Union in Puerto Rico that would
defend us. That was the conversation that we had at
that table . . . he said that our Union did not back
us. . . . I told him that he was not the President of the
Union and then I went to the kitchen to serve him his
meal. . . . He told me that if he would have been the
President of the Union he would have gotten for us all
the money that was owed to us from the Federal
Court.33
The General Counsel asserts in his brief at 26 and 27:
Rosado’s testimony reveals that, by Rodriguez-
Estrada’s comment that he (Rosado) was betraying him,
moments before Rosado was speaking with Union
president Diaz, Rodriguez-Estrada created the impres-
sion in the eyes of employee Rosado, that Rodriguez-
Estrada was engaging in surveillance of the employees’
Union activities. On the same day, Rodriguez-Estrada’s
statement to Rosado that if the employees continued to
bother him, he (Rodriguez-Estrada) was going to fire
them constituted an unequivocal threat of discharge be-
cause of the employees’ support for the Union, because
it came in response to Rosado’s association with Union
president Diaz, as Rodriguez-Estrada observed. Prisoner
Rodriguez-Estrada admitted that he had lots of con-
versations with Rosado.
Thereafter, Rodriguez-Estrada’s statement to Rosado
that the Union did not back them up, that the Union
should have obtained certain monies for the employees
and that there was ‘‘no Union that could defend them’’
was calculated to denigrate the Union before the eyes
of its employees-members and to distance the employ-
ees from the Union, suggested futility in Union mem-
bership or Union support and dissuaded employees
from continued membership in and support for the
Union. Rodriguez-Estrada’s statement ‘‘you betrayed
me’’ could reasonably have led Rosado to assume that
his Union’s activities had been placed under surveil-
lance specifically because of the timing of the remarks.
Rood Industries, 278 NLRB 160, 164 (1986). Because
Rodriguez-Estrada had been endowed with apparent au-
thority to act on behalf of management, the Respondent
violated Section 8(a)(1) also by threatening to fire
Union supporters. National Gypsum Co., 293 NLRB
1138, 1143 (1989). Likewise, Rodriguez-Estrada’s de-
meaning statements to denigrate the Union in the eyes
of the employees violated Section 8(a)(1) of the Act.
Cf. Lehigh Lumber Co., 230 NLRB 1122, 1125 (1977).
I am in agreement with the General Counsel and find that
by the Respondent’s agent Rodriguez-Estrada’s remarks to
employee Rosado, the Respondent violated Section 8(a)(1) of
the Act.
The test is ‘‘whether the threatened conduct has the tend-
ency to interfere with, restrain or coerce the employees in the
exercise of their Section 7 rights.’’ Cox Fire Protection, 308
NLRB 793 (1992).
E. Complaint Paragraph 11(f)
In this paragraph it is alleged that the Respondent, through
Rodriguez-Estrada, threatened to unlawfully discharge em-
ployees because they engaged in activities on behalf of the
Union.
Felix Ramirez34 testified that he engaged in conversation
with Rodriguez-Estrada in Rodriguez-Estrada’s office on
May 21, 1986. Chiro Hernandez, union secretary-treasurer,
was present. They wanted to know why the employees would
have to go to Coral Beach to fill out applications. Rodriguez-
Estrada responded, ‘‘I have nothing to talk with you because
you don’t represent anybody. I don’t have to talk to you any-
thing about [the] Union.’’ Addressing Ramirez, Rodriguez-
Estrada said, ‘‘[W]hat is Mr. Ramirez doing in this office.
He no longer represents the employees because the Union is
out.’’ To Hernandez Rodriguez-Estrada said, ‘‘Horizons
ha[d] nothing to do with the Union Gastronomica.’’ Ramirez
further testified:
Then he didn’t want to comment anything else with us.
Mr. Hernandez told him if you do not listen to me, I
thank you but I am going to go to the Secretary of
Labor of the Commonwealth of Puerto Rico because
those that I represent have a complaint. When we
turned our backs, he said don’t go, you can talk as
friends but not as the representatives of any Union.
Gomez was present. Rodriguez-Estrada pointed at Gomez
and said that ‘‘he represented Horizon.’’
Valentin Hernandez remembers:
[W]hen I knocked at the door accompanied by fel-
low-worker Ramirez, I told him that I wanted to talk
to him regarding certain irregularities that were occur-
ring at the hotel. And in regard to the memo that he
had sent to the workers dated May 21, 1986.
He told me that he did not have to receive me as a
representative of the Union . . . since the Union no
longer existed, but that he could receive me as a friend.
I told him that if he did not want to receive me it
was all right with me and I would leave.
We went into the office—finally he did receive me,
and we started talking about the memo.
. . . .
The memo dated May 21, 1986. Mr. Gomez was
there and he introduced me to him.
He told me that Mr. Gomez was a representative of
Horizons at the hotel. And that anything that I would
like to talk about the administration of the hotel, I had
to speak it with or talk about it with Mr. Gomez. . . .
I told Mr. Estrada and Mr. Gomez that my intention
and wish was to meet with Mr. Ben Fernandez to dis-
cuss all the atrocities that were occurring at the hotel
with regard to the dismissal of each and every one of
the employees. . . . Before I left, when I said I am
1224 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
35 ‘‘Jodon’’ according to the dictionary to which the interpreter re-
ferred, meant ‘‘to fuck, to pester, . . . to get on his nerves, to annoy,
to be a drag, to bugger up, to mess up, to ruin.’’
36 Because the units were covered by a union contract, presump-
tively the employees would have continued to support the Union.
37 It is also inferred from the pretextual nature of the reasons for
the discharges advanced by the Respondent that the Respondent was
motivated by union hostility. Whitesville Mill Service Co., 307
NLRB 937 (1992).
leaving, Mr. Gomez told me that he would be in charge
of making the arrangements so I and Mr. Ben
Fernandez could meet.
After Hernandez left on request he returned. On this occa-
sion Rodriguez-Estrada told Hernandez that ‘‘he was going
to recommend to Horizon not to employ or hire Mr. Frankie
Rosado, and neither Carmelo Caldera, because fellow-worker
Carmelo Caldera was too ‘jodon.’’’35
Hernandez asked Rodriguez-Estrada whether he was going
to take such action because these employees were or had
been on the Union’s board of directors. According to Her-
nandez, Rodriguez-Estrada ‘‘remained quiet.’’
The General Counsel claims that Rodriguez-Estrada’s
‘‘threat that he would recommend to Horizons not to hire
known Union leaders Caldera and Rosado on the heels of his
prior statement, constituted a violation of Section 8(a)(1) of
the Act by telling the employees’ representatives that those
who engaged in union activity would not be hired.’’ The
General Counsel relies on J. D. Landscaping Corp., 281
NLRB 9, 11 (1986). That case, however, concerns informing
employees that they would not be hired for engaging in
union activity. The instant case involves statements made to
a union representative. I find no violation of Section 8(a)(1).
Paragraph 11(f) is dismissed.
Alleged Violations of Section 8(a)(3)
Once the General Counsel has shown by a preponderance
of the evidence that the employees’ union affection or the
Respondent’s unlawful desire to avoid the bargaining obliga-
tion to recognize and bargain with the Union were motivat-
ing factors in its decision to refuse to consider an employee
for employment, the burden shifts to the employer to show
that it would have failed or refused to give the employee em-
ployment even if the employee had not shown union affec-
tion or suspected union affection or the employer had not en-
tertained antiunion motives. Cf. Wright Line, 251 NLRB
1083 (1980).36
The following factors and inferences support the General
Counsel’s prima facie case.
Rodriguez-Estrada, prior to June 1, 1986, acted as an agent
for the Respondent.
The Respondent’s antagonism against the Union and its
antiunion animus are evident in Agent Rodriguez-Estrada’s
statement to Quinones ‘‘he would try to do business with us
if he could pretty much be guaranteed that there would be
no risk of having a union’’ and ‘‘[p]ut it in writing’’ that
there was ‘‘no possibility [of] a union.’’
The Respondent’s antiunion animus is further self-evident
and inferred in that the Respondent did not choose one pred-
ecessor employee for employment in the service unit which
had been a union-represented unit.37 Rodriguez-Estrada
‘‘made [PEC] get photographs of every person that solicited,
attached to the . . . application, so he would recognize [the]
people,’’ creating the inference that the Respondent wanted
to finger the predecessor’s employees.
In Quinones’ resume of her discussion with Rodriguez-
Estrada on April 3, 1986, appears the language ‘‘There is no
possibility of a union’’ further manifesting Horizons’
antiunion animus and its desire to avoid the Union.
Rodriguez-Estrada worked out a scheme for the Respond-
ent (of which obviously Fernandez was aware, participated
in, and condoned) for hiring and paying Horizons’ workers,
who actually went to work for Horizons as permanent em-
ployees, by putting them on a PEC payroll as temporary em-
ployees ostensibly because temporary employees, as
Quinones represented, were nonunion employees, and for the
purpose of avoiding charges of discrimination or any bar-
gaining obligation.
Horizons sought to fence out the Union by hiring ‘‘al-
leged’’ temporary employees under the PEC umbrella al-
though the employees hired were of a permanent nature.
Rodriguez-Estrada, Fernandez, Gomez, and PEC, in some
degree, participated in the scheme of hiring and putting Hori-
zons’ workers on PEC’s payroll as temporary employees
which included no predecessor employee to be hired in the
service unit.
Nevertheless, although it appeared that Fernandez’ list of
employees to be hired had already been prepared, Rodriguez-
Estrada informed the predecessor’s employees to file applica-
tions with Horizons Hotel at the lobby of Coral Beach Con-
dominium (Rodriguez-Estrada ‘‘had the authorization to be
in charge of selecting the employees’’) which creates the in-
ference that Rodriguez-Estrada’s notification to the prede-
cessor’s employees was subterfuge to create an appearance
that the predecessor’s service employees were being consid-
ered for jobs.
Although PEC took the applications for employment for
the predecessor’s employees at the Coral Beach Condomin-
ium, none of these employees were interviewed for jobs or
called for interviews. Their applications were separated from
other job applicants by Fernandez.
Proof was that the predecessor’s employees listed on Ex-
hibit C filed applications or offered themselves for employ-
ment but were never offered employment.
Only supervisory and managerial employees were chosen
by Rodriguez-Estrada from the predecessor’s employees who
were carried on Horizons’ payroll.
Pantojas told employees, ‘‘Horizon wants no employee
that has backed up the Union or is backing up the Syndicate,
[b]ecause this enterprise does not want [a] union’’ and that
Rodriguez-Estrada had given him ‘‘all the authority to check
that the Union—that the [u]nion members would not infil-
trate staying there to work.’’
Rodriguez-Estrada was heard to say ‘‘I have to take the
Union out of here,’’ and ‘‘I have to take all the ‘pendejos’
out of here.’’
Rodriguez-Estrada told an employee ‘‘if they [the Union]
continued to bother him that he was going to fire them all
[all workers] and tomorrow he would place [a] letter in their
hand.’’
Rafi Diaz, casino manager, told a union member, when he
inquired about his job application, that he ‘‘didn’t want me
there.’’
1225CARIB INN OF SAN JUAN
38 In the casino, the union problem was not as acute as in the serv-
ice unit because the probability was that the casino would be closed,
which occurred.
39 It appears to be that it would have been a mathematical improb-
ability that ‘‘certain people’’ and ‘‘dead ones’’ would include all the
employees in the service unit which would have been covered by the
contract and not one would have been a fit employee for the Re-
spondent or that Fernandez would have found no ‘‘best employees’’
of whom, according to Rodriguez-Estrada, Fernandez was making a
list.
40 This language of the Board seems apropos: ‘‘We find it reason-
able to infer that it was not just coincidental that all those applicants
who displayed union affiliation were refused employment while
those who were hired did not display union affiliation.’’ Fluor Dan-
iel, 304 NLRB 970 (1991).
41 The Board had said in Texaco, Inc., 285 NLRB 241, 246
(1987): ‘‘under Great Dane, even if the employer proves business
justification, the Board may nevertheless find that the employer has
committed an unfair labor practice if the conduct is demonstrated to
be ‘inherently destructive’ of important employee rights or motivated
by antiunion intent.’’
Although service unit employees were carried on PEC
payroll, Horizons controlled their conditions of employment.
There is no credible proof that any predecessor employee’s
application was reviewed for employment which, assuming
arguendo that such had occurred, common sense and mathe-
matical improbability dictate that not every service unit em-
ployee would have been found wanting. The Respondent’s
choice of nonunion employees was deliberate and contrived.
The same persuasion which inclined Horizons to pass over
service unit employees carried over to the casino employ-
ees.38
The Respondent justifies its action with this explanation as
related by Fernandez:
All of them? Because we didn’t need all of them. Sec-
ond, we considered the fact that the hotel had been in
bankruptcy for so long that part of the reasons why the
hotel was in bankruptcy was that the employees were
not tending to the needs of the guests.
Q. Well, how do you know that sir?
A. Well, one I know from personal observation.
Two, I know it’s just a matter of logic that the hotel
had been in bankruptcy for so long that there needed
to be a change of certain people so that it would func-
tion better and it would make money.
JUDGE GOERLICH: You were eliminating the dead
ones,39 is that it?
THE WITNESS: Yes, sir.
The speciousness of such reasoning is obvious. The Re-
spondent asserts that the service personnel were a cause of
the prior operator’s bankruptcy but submits no definite credi-
ble proof. Moreover, Fernandez, although he allegedly ob-
served the service employees, did not point to one depart-
ment or an individual employee, which in his scrutiny he
found to be deficient in fulfilling duties. Nor was there any
credible proof that the persons put to work were more quali-
fied or had better records than the predecessor’s employees.
‘‘Logic’’ would seem to dictate that in the unskilled job clas-
sifications in the service unit, seasoned, qualified employees
would have been more advantageous employees than new
unfamiliar employees.40
Incongruously, the Respondent hired a substantial number
of supervisory, administrative, and managerial employees in-
cluding Rodriguez-Estrada who had managed these ‘‘certain
people’’ and ‘‘dead ones’’ for around 6 months without tak-
ing action. Horizons also hired Gloria Pantojas as personnel
director; Efrain Guzman as storekeeper; Ramon Pantojas as
night auditor; and others. Because the individuals hired by
the Respondent apparently had been unable to induce the em-
ployees working under them to meet Fernandez’ standards,
there seems no ‘‘logical’’ reason for hiring such apparant in-
efficient persons to run the hotel and bypass the service em-
ployees. Indeed it appears more ‘‘logical’’ that management
might have been a cause of the bankruptcy rather than the
work habits of service employees.
The reasons advanced by Fernandez do not stand scrutiny
and are contrived and implausible. Support for a finding of
an unlawful motivation is ‘‘augmented [when] the expla-
nation for discharge offered by the [R]espondent [does] not
stand . . . scrutiny.’’ NLRB v. Bird Machine Co., 161 F.2d
589, 592 (1st Cir. 1949).
In Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 185
(1941), it was stated:
Discrimination against union labor in the hiring of men
is a dam to self-organization at the source of supply.
The effect of such discrimination is not confined to the
actual denial of employment; it inevitably operates
against the whole idea of the legitimacy of organiza-
tion. In a word, it undermines the principle which, as
we have seen, is recognized as basic to the attainment
of industrial peace.
Horizons’ use of PEC’s temporary payroll for the purpose
of creating the appearance that Horizons’ workers were only
temporary employees was a coverup contrived so that it
would appear that PEC overlooked the service employees
and Horizons was not the cause of any discrimination. The
credible facts surely reveal that PEC was brought into the
picture for the purpose of placing the fault on PEC and af-
fording the Respondent a means of legitimacy while permit-
ting it to ignore, deliberately, for employment the service
employees who had been employed in a union-represented
unit. Employees who were hired and who were overlooked
could not fail to get the message from the Respondent’s mis-
conduct that the Respondent would have no union in its
hotel. Thus, they were discouraged in the exercise of their
Section 7 rights.
The Respondent’s machinations reveal its antiunion ani-
mus and reveal the kind of conduct which carries with it
‘‘unavoidable consequences which the employer not only
foresaw but which he must have intended’’ and thus bears
its own ‘‘indicia of intent.’’ Cf. Erie Resistor Corp. v. NLRB,
373 U.S. 221, 228, 231 (1963). See also NLRB v. Great
Dane, 388 U.S. 26 (1967).41 It was the kind of conduct that
is ‘‘inherently destructive’’ of important employees’ rights.
The Respondent’s scheme hindered future bargaining, dis-
couraged union affection, and created obstacles to future ex-
ercise of Section 7 rights.
I find that the Respondent refused to consider the prede-
cessor’s employees because they had been employees in a
unit which had been covered by a union contract and were
presumptively for the Union and because it wanted to avoid
1226 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
42 ‘‘[T]o the extent that there is uncertainty with respect to what
Respondent would have done absent its unlawful purpose, such un-
certainty must be resolved against the Respondent since it cannot be
permitted to benefit from its unlawful conduct.’’ Honda of Hayward,
307 NLRB 340 (1992).
43 See Limestone Apparel Corp., 255 NLRB 722 at 722 (1981).
‘‘[A] finding of pretext necessarily means that the reasons advanced
by the [Respondent] either did not exist or were not in fact relied
upon, thereby leaving intact the inference of wrongful motive estab-
lished by the General Counsel.’’
bargaining with a collective-bargaining representative of its
employees.42 The Respondent has not demonstrated by credi-
ble evidence that irrespective of the discriminatees’ union
connections and its antiunion considerations, it would not
have hired any of the predecessor’s service employees. See
Wright Line, 251 NLRB 1083 (1980). The Respondent has
shown no ‘‘legitimate objectives’’ for its actions.
The Respondent did not explain with any credible evi-
dence why the workers chosen to be employed at its hotel
were better qualified or would have been superior employees
to those which it rejected. Common sense would verify that
at least some of the long-term experienced employees who
had been working in the hotel would have been equally
qualified. See Fluor Daniel, supra.
This language from the case of Columbus Janitor Service,
191 NLRB 902, 910, 911 (1971), is apropos:
First: It is well settled that Allied’s employees were
entitled to be considered by Columbus for employment
on a nondiscriminatory basis. Tri-State Maintenance
Corp. v. NLRB, 408 F.2d 171 (C.A.D.C). The Respond-
ent’s duty in this regard obtained even though Colum-
bus was not a successor in law of Allied for an em-
ployer may not refuse a person employment because of
his union affection. Phelps Dodge Corp. v. NLRB, 383
U.S. 177.
Prior to the hiring of any new employees for the
Friendship site, the union affection of Allied employees
was brought to the attention of Columbus by Local 587.
Nevertheless, as is established by the credible proof, the
Respondent considered none of Allied’s employees for
prospective employment, although it hired new employ-
ees who exceeded the Allied employees in number. To
permit an employer to pretermit his predecessor’s em-
ployees’ reasonable expectations of employment with-
out justifiable explanation is but to cater to that em-
ployer who ‘‘might well seek to avoid application of
the successorship principle by refusing to hire the sell-
er’s employees.’’ Indeed, if successorship is to have
any legal significance in fact such pretermission cannot
be tolerated for to tolerate it is to put in the hands of
the employer the power to destroy the successorship
principle as it has evolved in the law of labor relations
and to deprive the employee of the protection which the
principle affords the employee when there is a sudden
change in his employment relationship. It is well estab-
lished that ‘‘the interests to be protected [under the Act]
are primarily those of employees. . . .’’ Philip Carey
Manufacturing Company v. NLRB, 331 F.2d 720, 735
(C.A. 6). With the employees in mind, the Supreme
Court has said in John Wiley & Sons, Inc. v. Livingston,
376 U.S. 543, 549:
The objectives of national labor policy, reflected in
established principles of federal law, require that the
rightful prerogatives of owners independently to rear-
range their businesses and even eliminate themselves
as employers be balanced by some protection to the
employees from a sudden change in the employment
relationship. [Emphasis added.]
‘‘Some protection,’’ it seems clear, at least con-
templates the duty for an arguable successor employer
who hires employees to consider a predecessor’s em-
ployees for hire on a nondiscriminatory basis. Where
the predecessor’s employees are prounion and the em-
ployees hired are nonunion, the failure of the arguable
successor employer to consider any of the predecessor’s
employees for employment creates a strong presump-
tion of unlawful discrimination. . . . In this regard the
Respondent explained that Allied employees were
passed over because the Respondent sought new em-
ployees in the belief that they would not have to
unlearn a prior employer’s work methods and would,
without such inhibition, adapt more readily to the Re-
spondent’s work methods. The apocryphal character of
such claim is self-evident for the Respondent did not
interview a single Allied employee to ascertain whether
he or she possessed bad habits or whether he or she
would adapt to the Respondent’s work methods, al-
though it knew Allied employees were available for
employment.
There is no credible evidence that the casino employees
were not selected in the same manner as the service unit em-
ployees.
The Respondent’s reason for refusing to hire its prede-
cessor’s employees as detailed was a pretext woven from the
same cloth as its scheme described to avoid the Union and
its bargaining obligations.43 The reason stated by Fernandez
for not hiring the predecessor’s employees was false.
By failing to consider for hiring and failing to hire em-
ployees of its predecessor, the Respondent violated Section
8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act
and it will effectuate the purposes of the Act for jurisdiction
to be exercised here.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The following employees of the Respondent constitute
units appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act:
Unit A:
Included: All employees employed by Respondent at
its Hotel in Isla Verde, San Juan, Puerto Rico, in the
following departments; Housekeeping, food and bev-
erage (including food and beverage checkers and cash-
iers), repair and maintenance, laundry and valet, pool
(including lifeguards), storekeeping, uniform service,
1227CARIB INN OF SAN JUAN
44 See Franklin Parish Broadcasting, 222 NLRB 1133 fn. 2
(1976), in which it is stated, ‘‘We further find that the bargaining
order entered into herein by the Administrative Law Judge should
commence as of the date on which the Respondent embarked on its
clear course of unlawful conduct, December 10, 1974, since the
Union had already achieved majority status by that date. Trading
Port, Inc., 219 NLRB [298] (1975).’’ See also Crown Cork & Seal
Co., 308 NLRB 445 (1992).
45 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
telephone department employee, employees in the ad-
ministrative and general department, front office em-
ployees, office clerical employees, and secretaries.
Excluded: Executive personnel, professional person-
nel, pool manager, security employees, comptroller or
auditor, assistant comptroller or assistant auditor, night
auditor, accounts payable supervisor, accounts receiv-
able supervisor, credit manager, timekeeper, personnel
director, Tennis Professional, Assistant Tennis Profes-
sional, front office manager, Head Cashier Checker,
head front office cashier, head food and beverage cash-
ier (both day and night), payroll supervisor, head of
storerooms and receiving, food and beverage comptrol-
ler, assistant food and beverage comptroller, assistant
manager and maitre d’ of the banquet office, executive
chef, assistant maitre d’, and the secretaries to manager,
personnel director, comptroller or auditor, food and
beverage manager, room division manager, sales man-
ager and banquet manager, assistant payroll supervisor,
guards and supervisors as defined in the Act.
Unit B:
Included: All croupiers, apprentice croupiers and ca-
sino attendants employed by Respondent at the Hotel.
Excluded: All office clerical employees including
cashiers, all other employees, professional personnel,
guards and supervisors as defined in the Act.
4. At all times material, the Union has been the exclusive
representative of all the employees in the above units for the
purpose of collective bargaining within the meaning of Sec-
tion (9) of the Act.
5. By failing and refusing to recognize and bargain with
the Union, the Respondent violated Section 8(a)(1) and (5)
of the Act.
6. By interfering with, restraining, and coercing employees
in the exercise of their rights guaranteed by Section 7 of the
Act, the Respondent has engaged in unfair labor practices in
violation of Section 8(a)(1) of the Act.
7. By failing and refusing to hire the employees listed in
Exhibit C, the Respondent has engaged in unfair labor prac-
tices in violation of Section 8(a)(3) and (1) of the Act.
8. The above violations of the Act are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I recommend that it cease and desist
therefrom and take certain affirmative action designed to ef-
fectuate the policies of the Act. It is further recommended
that the Respondent be required to recognize and bargain
with the Union in the service unit and the casino unit. In that
the casino unit no longer exists, it is recommended that the
Respondent recognize and bargain with the Union for the ca-
sino unit when and if the Respondent again operates a casino
on the hotel premises and that the Respondent offer employ-
ment to the casino employees listed on Exhibit C in accord-
ance with their seniority. It having been further found that
the Respondent unlawfully discriminated against the service
employees listed in Exhibit C it is recommended that the Re-
spondent, in accordance with Board policy, offer them em-
ployment to the same positions at which they would have
been employed under the terms of the contract between the
Union and Carib Inn which was terminated on March 20,
1986, in accordance with the seniority therein declared, or if
such positions no longer exist to substantially equivalent po-
sitions, without prejudice to the seniority or other rights and
privileges they may have acquired, dismissing, if necessary,
any employees employed since June 1, 1986, and make them
whole for any loss of earnings they may have suffered as a
result of the discrimination against them by payment to them
of a sum of money equal to the amount they would have
earned from the date they would have been respectively em-
ployed by the Respondent had it not discriminated against
them to the date of an offer of employment, less net earnings
during the period to be computed on a quarterly basis in the
manner established by the Board in F. W. Woolworth Co.,
90 NLRB 289 (1950), with interest to be computed in the
manner prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
In that the Respondent’s unfair labor practices were com-
mitted at least by June 1, 1986, it is recommended that the
Respondent’s obligation to bargain with the Union com-
mence on June 1, 1986.44
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended45
ORDER
The Respondent, Horizons Hotel Corporation d/b/a Carib
Inn of San Juan, Carolina, Puerto Rico, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Discouraging membership in Union de Trabajadores de
la Industria Gastronomica de Puerto Rico, Local 610, Hotel
Employees and Restaurant Employees International Union,
AFL–CIO or any other labor organization by discriminatorily
refusing to hire applicants for employment or by unlawfully
discriminating in any other manner in regard to their hire,
tenure, or terms and conditions of employment.
(b) Refusing to bargain collectively concerning rates of
pay, wages, hours, and other terms and conditions of em-
ployment with Union de Trabajadores de la Industria
Gastronomica de Puerto Rico, Local 610, Hotel Employees
and Restaurant Employees International Union, AFL–CIO as
the exclusive representative of its employees in the following
appropriate units:
Unit A:
Included: All employees employed by Respondent at
its Hotel in Isla Verde, San Juan, Puerto Rico, in the
1228 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
46 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
following departments; Housekeeping, food and bev-
erage (including food and beverage checkers and cash-
iers), repair and maintenance, laundry and valet, pool
(including lifeguards), storekeeping, uniform service,
telephone department employee, employees in the ad-
ministrative and general department, front office em-
ployees, office clerical employees, and secretaries.
Excluded: Executive personnel, professional person-
nel, pool manager, security employees, comptroller or
auditor, assistant comptroller or assistant auditor, night
auditor, accounts payable supervisor, accounts receiv-
able supervisor, credit manager, timekeeper, personnel
director, Tennis Professional, Assistant Tennis Profes-
sional, front office manager, Head Cashier Checker,
head front office cashier, head food and beverage cash-
ier (both day and night), payroll supervisor, head of
storerooms and receiving, food and beverage comptrol-
ler, assistant food and beverage comptroller, assistant
manager and maitre d’ of the banquet office, executive
chef, assistant maitre d’, and the secretaries to manager,
personnel director, comptroller or auditor, food and
beverage manager, room division manager, sales man-
ager and banquet manager, assistant payroll supervisor,
guards and supervisors as defined in the Act.
Unit B:
Included: All croupiers, apprentice croupiers and ca-
sino attendants employed by Respondent at the Hotel.
Excluded: All office clerical employees including
cashiers, all other employees, professional personnel,
guards and supervisors as defined in the Act.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer the persons listed in Exhibit C immediate em-
ployment to the same positions they would have held under
the terms of the aforesaid contract between the Union and
Carib Inn had they been lawfully hired or, if such positions
no longer exist, to substantially equivalent positions without
prejudice to their seniority or any other rights or privileges
previously enjoyed, discharging, if necessary, any employees
hired since June 1, 1986, and make them whole for any loss
of earnings and other benefits suffered as a result of the dis-
crimination against them, in the manner set forth in the rem-
edy section of this decision and to otherwise comply fully
with the remedy.
(b) On request, bargain collectively with Union de
Trabajadores de la Industria Gastronomica de Puerto Rico,
Local 610, Hotel Employees and Restaurant Employees
International Union, AFL–CIO as the exclusive representa-
tive of its employees in the bargaining units found appro-
priate, bargaining to commmence as of June 1, 1986.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the re-
instatement rights and amounts of backpay due under the
terms of this Order.
(d) Post at its Carolina, Puerto Rico hotel copies of the at-
tached notice in Spanish and English, marked ‘‘Appendix
D.’’46 Copies of the notice, on forms provided by the Re-
gional Director for Region 24, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
EXHIBIT A
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
WASHINGTON, D.C.
HORIZONS HOTEL CORPORATION D/B/A CARIB INN OF SAN
JUAN
and Case No. 24–CA–5423
UNION DE TRABAJADORES DE LA INDUSTRIA GASTRONOMICA
DE PUERTO RICO, LOCAL 610, HOTEL EMPLOYEES AND RES-
TAURANT EMPLOYEES INTERNATIONAL UNION, AFL–CIO
ORDER CONDITIONALLY APPROVING
WITHDRAWAL REQUEST
PURSUANT TO SETTLEMENT AGREEMENT
The instant matter was closed for hearing purposes on
March 15, 1991, and the current expiration date for the filing
of briefs is October 5, 1991.
The General Counsel having taken the position that the un-
fair labor practices alleged in the Complaint and Notice of
hearing issued by the Regional Director on December 21,
1987, as amended, were committed, among others, by Hector
Rodriguez-Estrada, while acting as agent for the Respondent,
The Respondent having taken the position that Rodriguez-
Estrada was not an agent of Respondent during the time ma-
terial herein and that, in any event, his conduct here cannot
be disassociated from his functions as Trustee in Bankruptcy
for the predecessor’s estate,
The preponderance of the proffered evidence at the hearing
tending to show that Rodriguez-Estrada did engage in the un-
lawful conduct charged in the Complaint and that but for
Rodriguez-Estrada’s conduct, the allegations contained in the
instant Complaint against Respondent would not have been
made,
The Respondent and Charging Party wishing to settle their
differences in the instant matter in an amicable fashion, pro-
curing to remedy the alleged unfair labor practices and to
proceed with business as usual,
1229CARIB INN OF SAN JUAN
1 This is a kind of resource that could not easily be fabricated. I
find it to be genuine.
The Respondent and Charging Party having, in fact,
reached a private settlement which includes, inter alia, rec-
ognition of the Charging Party as the exclusive collective
bargaining representative for its employees in the hotel, the
actual execution of a three-year collective bargaining agree-
ment based on Respondent’s prevalent wages, salaries and
other economic terms and other monetary conditions of em-
ployment, with a reopener clause for wages after one year,
the offer of reinstatement for the alleged discriminatees and
a negotiated backpay amount for each discriminatee, and ne-
gotiate a medical plan acceptable to both parties,
The Charging Party having filed before me a conditional
withdrawal request of the underlying charge here,
IT IS HEREBY ORDERED that said withdrawal request is
conditionally approved based on the representation that a pri-
vate settlement has been reached between the parties.
IT IS FURTHER ORDERED that said approval is conditioned
on the performance of the undertakings in the private settle-
ment between Charging Party and the Respondent and that
on application by the Charging Party or Respondent that
those undertakings have not been complied with, the charge
will be subject to reinstatement for further proceedings or
dismissal as the case may be.
Upon final compliance of such undertakings by the Re-
spondent and Charging Party, counsel for the General Coun-
sel will file a Motion before me informing accordingly and
at that time I will enter an ORDER dismissing the Com-
plaint.
Dated at Hato Rey, Puerto Rico, this 23rd day of August
1991.
/s/ Lowell M. Goerlich
Administrative Law Judge
EXHIBIT B
$4. 85 per hour costs for employees of $3.35 [sic] which
cost it $4.54 without administrative costs.
Consider the following factors:
It does not need a personnel director who might well earn
a salary of 1,500 monthly or 18,000 annually, in addition to
an office clerk, and a person to handle the payrolls which
might add up to some $1,000.00 between the two.
Let’s take also into account the following particulars:
1. There is no possibility for a Union.
2. There is no need to incur in administrative expenses for
interviews and evaluations for the purpose of hiring.
3. There are no classified ads expenses.
4. Hiring is carried out in a hushed-up fashion.
5. There is no need to keep employees working when in
fact they are not needed (the employee is to be utilized when
there is a need for it).
6. There is no need to keep inefficient employees at any
time.
7. Compensation does not have to be paid when an em-
ployee is fired.
8. Maternity leave does not have to be paid.
9. Money derived from premiums on account of Work-
men’s Compensations policies are not to be paid or kept tied
up, which would pay $14,700.00 approximately annually and
in advance, for approximately 88 persons at $3.35.
10. They do not have to file Social Security and Federal
returns.
11. They do not risk any increase in their policies due to
claims made upon.
12. Fringe benefits do not have to be paid.
13. There is no obligation to pay non-working days.
14. Investment is 100% deductive for the Income Tax
operational costs.
15. You will only pay for hours worked. If a task is per-
formed one day within 5 hours instead of 8, that employee
cannot finish it in 5 hours.
16. You do not have to worry over the accident claims re-
lated to work.
17. We will provide employees to avoid overtime in ac-
cordance with your needs.
We will interview and qualify personnel for you, accord-
ing to your specifications and requirements.
We will verify the employment references as well as re-
quest from them health certificates (when it is deemed nec-
essary) and of Good Conduct for the Police.
We will offer seminars on motivation, attitudes, physical
appearance in accordance to the needs, without any cost on
your part.
We will pay the employees on a weekly basis, on holiday,
after the Payroll Sheet signed by you has been turned in.
We will keep control of vacations and same will be paid
when due without any need for you to keep this control.
If you wish to grant a raise to someone, you can contact
us and we will make arrangements.
You may be to pay the whole payroll, including the casino
employees—as long as said employees possess a license and
qualify for the respective ‘‘Bonding’’ insurance.1
EXHIBIT C
Margarita Claussell Carmen Ojeda
Maria Caldero Frank Rosado
Mineroa Vazquez Ramon Luis Rosario
Tomasa Garcia Blas Ortiz
Beatriz Hiraldo Jose Justiniano
Tomasina Zapata Raul Velazquez
Candida Santana Julio Rodriguez
Carmen M. Colon Orlando Trinidad
Isabel Rodriguez Maximino Carbo
Gloria Concepcion Delia A. Osorio
Juana Ayala [Ana Delia]
Felix B. Ramos Aurea Santana
Miguel Andrillon Emerita Escudero
Jesus Terreforte Ramon Matos Cintron
Julio Vega Hiram M. Miranda
Esmelin Santos Francisco Jimenez
Manuel Vazquez Heriberto Trujillo
Felix Ramirez Hector Guevarez
William Rivera Ana M. Guardiola
Monserrate Colon Rafael Matos
Conchita Rodriguez William Martinez
Carmen de Jesus Maria de Jesus
Lydia Noguera Ana Verte Calderon
1230 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Matilde Ramos Gloria Caballero
Elba Iris Verdejo Domingo P. Morales
Sarah Algarin Victor Cruz
Basilisa Rivera Iris C. Hernandez
Garcia Filiberto Jaime
Juanita Hernandez Jesus Diaz
Remuel Q. Perez Carlos Gonzalez
Juan M. Colon Roberto Perira
Carmelo J. Caldera Fernando V. Vazquez
Norberto A. Cruz Valentian Hernaiz Delgado
Isaias Diaz Virella