Casa Duramax, Inc.

National Labor Relations Board - Board Decisions

Apr 22, 1992

307 N.L.R.B. 213 (N.L.R.B. 1992)

213
307 NLRB No. 32
CASA DURAMAX, INC.
1 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.
Chairman Stephens finds unlawful the threat that strikers’ jobs will
be ‘‘lost’’ to replacements because this statement is made against a
background of other undisputed threats of discharge in retaliation for
union activities. In this regard he finds the case closer to Baddour,
Inc., 303 NLRB 275 (1991), than to Larson Tool & Stamping Co.,
296 NLRB 895 (1989), in which he dissented. See also Mantrose-
Haeuser Co., 306 NLRB No. 74, slip op. at 6–7 (Feb. 21, 1992)
(concurring opinion) (finding statement not an unlawful threat to
freeze benefits in context and in absence of other coercive state-
ments); Harrison Steel Castings Co., 293 NLRB 1158 (1989) (find-
ing unlawful an employer’s threat that union’s advent will bring
about job loss because of business competition where statement was
made in context of other coercive statements).
Member Devaney does not agree that statements about job loss in
Respondent’s April 1990 leaflet violate Sec. 8(a)(1). The statements
that an employer can continue operations with replacements for
striking employees and that strikers could be permanently replaced
in some situations are truthful, although incomplete, statements con-
sistent with Board law regarding an employer’s right to replace eco-
nomic strikers. For the reasons discussed in his dissent in Baddour,
Member Devaney would dismiss this allegation of the complaint. In
doing so, he notes that the complaint does not allege that the leaflet
indicated that strikes are inevitable but ultimately futile.
1 All dates are 1990 unless I specify otherwise. The charge in Case
24–CA–6132 was amended on May 31 and June 28.
2 The specific complaint allegations are set forth elsewhere.
Casa Duramax, Inc. and Congreso de Uniones
Industriales de Puerto Rico. Cases 24–CA–
6132, 24–CA–6273, and 24–RC–7305
April 22, 1992
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On October 24, 1991, Administrative Law Judge
William N. Cates issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Casa Duramax, Inc., Coto
Laurel, Ponce, Puerto Rico, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.
IT IS FURTHER ORDERED that the election held on
April 5, 1990, in Case 24–RC–7305 is set aside and
a new election held.
[Direction of Second Election omitted from publica-
tion.]
Virginia Milan, Esq., for the General Counsel.
Victor M. Comolli, Esq. and Agustin Collazo, Esq. (McCon-
nell, Valdes, Kelley, Sifre, Griggs & Ruiz-Suria), of San
Juan, Puerto Rico, for the Company.
Nicolas Delgado, Esq. (Nicolas Delgado & Associates), of
San Juan, Puerto Rico, for the Union.
DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. Congreso
de Uniones Industriales de Puerto Rico (the Union) filed un-
fair labor practice charges against Casa Duramax, Inc. (the
Company), in Cases 24–CA–6132 and 24–CA– 6273 on
April 20, 1990,1 and January 2, 1991, respectively. The Na-
tional Labor Relations Board’s (the Board) Regional Director
for Region 24, as an agent of the Board’s General Counsel,
issued an order further consolidating cases, consolidated
amended complaint, and amended notice of hearing (the
complaint), on February 28, 1991, pursuant to which I heard
the cases in trial in Hato Rey, Puerto Rico, on July 8 and
9, 1991.
It is alleged in the complaint that the Company through
certain of its agents and supervisors engaged in various acts
that interfered with, restrained, and coerced its employees in
the exercise of rights guaranteed them by Section 7 of the
National Labor Relations Act (the Act).2 It is further alleged
that the Company violated Section 8(a)(3) of the Act by, on
or about November 30, granting its employees Wilberto
Torres (Torres); Manuel Bonilla (Bonilla); and Melquiades
Vargas (Vargas); wage increases that were less than the wage
increases granted to its other production and maintenance
employees.
In a report and recommendations on objections, order con-
solidating cases, and notice of hearing, the Regional Director
for Region 24 of the Board on July 20, consolidated certain
of the Union’s (Petitioner’s) objections to conduct affecting
results of the election (held on April 5) in Case 24–RC–7305
with the above-referenced unfair labor practice cases.
In its timely filed and amended answer, the Company ad-
mitted certain allegations but denied violating the Act in any
manner.
I have carefully reviewed the entire record and have stud-
ied the posthearing briefs filed by counsel for the General
Counsel, the Company, and Union. I have been influenced
by my assessment of the witnesses as they testified. Based
on the above, and as explained below, I find the Company
violated the Act substantially as outlined in the complaint.
214 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Inabon Ready Mix is the parent company of Casa Duramax, Inc.
4 It appears Lespier was company counsel at that time.
FINDINGS OF FACT
I. JURISDICTION
The Company is, and at material times has been, a Puerto
Rico corporation with a facility located at Coto Laurel,
Ponce, Puerto Rico, where it is engaged in the construction
of industrialized (prefabricated) houses. Annually, the Com-
pany purchases and receives goods and materials valued in
excess of $50,000 directly from suppliers located outside the
Commonwealth of Puerto Rico. The complaint alleges, the
parties admit, and I find, the Company is, and at times mate-
rial has been, an employer engaged in a business affecting
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE LABOR ORGANIZATION
The complaint alleges, the parties admit, the evidence es-
tablishes, and I find, the Union is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Overview
Early in 1990, the Union commenced an organizing cam-
paign at the Company. On February 16, the Union filed a
representation petition in Case 24–RC–7305. On February
20, Union Vice President Jose Figueroa requested in writing
that the Company recognize the Union as the collective-bar-
gaining representative of its employees. In his February 20,
letter, Figueroa notified the Company that certain employees,
namely Armando Troche, Bonilla, Torres, and Roberto Perez
were ‘‘the Union leaders in said unit.’’ The Company and
Union executed a Stipulated Election Agreement on March
5, which was approved by the Regional Director of Region
24 of the Board on March 6. An election by secret ballot
was conducted on April 5, under the direction and super-
vision of the Regional Director for Region 24 of the Board.
The tally of ballots duly served on the parties revealed that
of the approximately 67 eligible voters, 27 voted for the
Union (Petitioner) while 32 voted against the Union (Peti-
tioner) with no void ballots cast. There were three challenged
ballots cast which were insufficient in number to affect the
results of the election. On April 10, the Union (Petitioner)
filed timely ‘‘Objections to the Election.’’ On July 20, the
Regional Director for Region 24 of the Board issued her re-
port and recommendations on objections, order consolidating
cases, and notice of hearing. In her report, the Regional Di-
rector overruled Objections 1, 3–9, and 12. She ordered a
hearing be held to resolve the Union’s (Petitioner’s) three re-
maining objections, namely, Objections 2, 10, and 11. Objec-
tions 2, 10, and 11, follow:
Objection 2: That on or about February 17, 1990, the
Company threatened to close the factory if the Union
won.
Objection 10: That the Company through its super-
visors asked for whom they were going to vote.
Objection 11: That the Company changed the work-
ing conditions of the employees.
The critical period with respect to the representation case
runs from the filing of the petition on February 16 until the
close of the polls on April 5.
B. The 8(a)(1) Allegations
I shall address the 8(a)(1) allegations in the order outlined
in the complaint.
1. The alleged violations attributed to Company
President Alfonso Hernandez
It is alleged at paragraph 8(a)(i) of the complaint that Her-
nandez on or about April 5, on two separate occasions,
promised employees the Company would sponsor an in-
house union, and stated the Company would have closed had
the Union won the Board-conducted election.
Torres, who worked as a carpenter for the Company for
approximately 5 years until he was laid off, testified that
after the Board-conducted election on April 5, his immediate
supervisor, General Foreman Jose Guzman, hereinafter Gen-
eral Foreman Guzman, came to his work area and told him
Jaime del Valle, the engineer in charge of the plant, wanted
to see him in his office. Torres went to the designated office
where General Foreman Guzman, del Valle, Company Presi-
dent Hernandez, Inabon Ready Mix Co. Engineer Quinones3
and Attorney Lespier4 were. Torres testified:
When I arrived at the meeting and I found everyone
there Mr. Alfonso Hernandez slapped me on the back.
He said that I had expressed myself very well before
him and . . . he told me that he was going to make
better the plant by forming a committee . . . I was
going to lead. He also told me the law did not permit
him to tell that if the Union were to win . . . he would
negotiate a closing of the plant.
Israel Mercado Hernandez, hereinafter Mercado Her-
nandez, who worked approximately a year for the Company
as a laborer under the supervision of Vice President of Oper-
ations Angel Munoz-Ayala, hereinafter Munoz-Ayala, testi-
fied that on April 5, after the Board election had been held:
There was a party and Mr. Alfonso Hernandez told us
in front of the employees that he had a surprise for the
employees that in two weeks the factory would have
closed if he had lost the election.
The Company did not present President Hernandez with
respect to these allegations nor was his absence explained in
any manner.
The testimony of Torres and Mercado Hernandez was
plausible, reasonable, uncontradicted, and therefore accepted.
I find Company President Hernandez’ comments that if the
Union had won the election, the Company would have closed
in 2 weeks were coercive and violated Section 8(a)(1) of the
Act. The record is void of any evidence that would indicate
President Hernandez based his comments on any objective
considerations or justifying circumstances such as economic
necessity or as a result of matters beyond the Company’s
control.
215CASA DURAMAX, INC.
I also find Company President Hernandez’ announcement
and promotion of an employee committee (headed by em-
ployee Torres) that would function as an alternative to the
Union constitutes unlawful interference with employee Sec-
tion 7 rights in violation of Section 8(a)(1) of the Act. See,
e.g., Bay State Ambulance Rental, 280 NLRB 1079, 1084–
1085 (1986).
It is alleged at paragraph 8(a)(ii) of the complaint that
Company President Hernandez on or about November 30,
advised employees that it had withheld pay raises and addi-
tional vacation pay because of the pendency of the Union’s
representation proceedings before the Board, but that it nev-
ertheless was granting them at this time, thereby informing
its employees that the failure to get pay increases and addi-
tional benefits was because of the Union’s organizational in-
terest.
Vargas, a 6-year employee with the Company currently
working as a welder for Vice President of Operations
Munoz–Ayala, testified that an employee meeting called by
management was held on November 30. He testified various
management personnel as well as all employees attended. He
stated Company President Hernandez told the employees the
Board’s case had been postponed until June 1991 and:
he said he was going to give us . . . classifications and
. . . told us that there would be an increase in salaries.
He also commented to us that he would take the re-
sponsibility because he understood . . . the Board [did]
not permit us being given an increase in salary. He also
told us of a retroactive . . . six day payment for vaca-
tion.
Vargas said the increases were effective December 1.
Bonilla, who worked for the Company for approximately
5 years as a welder but was unemployed as of the trial here-
in, and Torres corroborated Vargas’ testimony as outlined
above.
Bonilla testified Company President Hernandez said he
was giving the employees a salary increase because ‘‘he had
an inkling—feeling that the crane workers were going to
leave’’ the Company if he did not do so.
The above-credited testimony raises various questions.
Why did Company President Hernandez grant the wages and
other benefits increases that he did at the time he did? Was
it to reward the employees for rejecting the Union? Was it
to induce the employees to vote against the Union in the
event of a second election? Was it an attempt to blame the
Union for the employees not having received wages and
other benefits increases earlier? Was it based on business jus-
tifications?
The Board in Marine World USA, 236 NLRB 89, 90
(1978), held:
It is well settled, however, that the granting of wage in-
creases and/or benefits during the pendency of a rep-
resentation proceeding, including the pendency of ob-
jections to an election, is not per se unlawful. Rather,
the test is whether, based on the circumstances of each
case, the granting of increased wages and benefits is
calculated to impinge upon the employees’ freedom of
choice in an upcoming scheduled election or an election
which might be directed in the future.6 Thus, for exam-
ple, the Board has found the granting of new wages and
benefits during the pendency of a representation pro-
ceeding to be lawful where an employer has established
that such action was consistent with past practice,7 such
action had been decided upon prior to the onset of
union activity,8 or business justifications prompted the
adjustment.9
6 McCormick Longmeadow Stone Co., [158 NLRB 1237 (1966)]
supra at 1242; Champion Pneumatic Machinery Co., 152 NLRB 300,
306 (1965).
7 Cf. The Gates Rubber Company, 182 NLRB 95 (1970).
8 See, e.g., FMC Corporation, Power Control Division, 216 NLRB
476 (1975).
9 See, e.g., Frito-Lay, Inc., 185 NLRB 400 (1970).
As noted in Electric Hose Co., 262 NLRB 186, 205 (1982),
increases in benefits implemented during the pendency of
union objections to a Board-conducted election violates the
Act if the circumstances indicate the employer was rewarding
the employees for rejecting unionization or if the employer
was seeking an advantage in the event the union prevailed
in its objections and a second election was ordered.
I note with respect to the Company’s contention that it
might have lost certain employees if it had not granted the
wages and other increases when it did was not supported by
any objective evidence.
The evidence reflects Company President Hernandez at-
tempted to accomplish two goals related to the Union’s ef-
forts at the Company when he announced on November 30,
the employees would be given job classifications, increases
in wages, and additional retroactive vacation days effective
December 1. First, the unrefutted testimony of Union Vice
President Figueroa shows ‘‘[t]he campaign issues . . . were
. . . vacations, the classifications, and the salary increases.’’
Thus, an inference is warranted that Hernandez was reward-
ing the employees for rejecting the Union in that he was
granting them exactly what they had been seeking to obtain
with union help thus lessening the need for the Union by his
actions. Second, Company President Hernandez acknowl-
edged the Board had not resolved certain matters (unfair
labor practice charges and the Union’s objections to the elec-
tion) before it and that he might be called on to answer for
his actions; however, he announced the increases anyway
saying he would take the responsibility for doing so. It is
quite clear Hernandez was not unmindful that a possible sec-
ond election could be directed in the future and that by
eliminating the issues that concerned the employees he could
influence the outcome of a second election if one was di-
rected.
In summary, the circumstances as a whole and the context
in which President Hernandez announced the wages and
other benefits increases persuades me he was rewarding the
employees for rejecting the Union and was also attempting
to impinge on employees’ freedom of choice in a possible
future election. Such violates Section 8(a)(1) of the Act and
I so find.
216 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 I note that Munoz-Ayala’s title in the complaint is alleged to be
plant manager. However, he testified at trial his title was vice presi-
dent of operations. Whatever his exact title may be, there is no dis-
pute that he is, and at material times herein was, a supervisor and
agent of the Company within the meaning of the Act.
6 In her posttrial brief, counsel for the General Counsel moved to
amend out the other portions of par. 8(b)(i) of the complaint that are
not set forth above. I grant her unopposed motion.
7 The intermediary was not identified in the record.
8 In her posttrial brief, counsel for the General Counsel moved to
amend out the other portions of par. 8(b)(ii) of the complaint that
are not set forth above. I grant her unopposed request.
9 I am not unmindful that counsel for the General Counsel did not
establish the date for this conversation. The evidence, however, indi-
cates it was between February 28 (Mercado Hernandez’ first day of
work) and April 5 (the date of the Board-conducted election).
10 Although Vargas was called as a witness by counsel for the
General Counsel, he was not asked about the above conversation.
2. The alleged violations attributed to Vice President of
Operations Munoz–Ayala5
It is alleged at paragraph 8(b)(i) that Munoz–Ayala on or
about February 28, informed employees that if the Union lost
the election, the Company would discharge senior employees
and retain the junior employees.6
Mercado Hernandez testified he was working at
‘‘Estanceas de Juana Diaz’’ at a pay rate of $3.45 per hour
and that on February 27, Munoz–Ayala sent an individual7
to his home to ask him to work for the Company starting
the next day (February 28) at a pay rate of $3.60 per hour.
Mercado Hernandez said he had sometime earlier met Vice
President of Operations Munoz–Ayala through a local base-
ball team. Mercado Hernandez testified Munoz–Ayala told
him on several occasions that he had hired him so that he
could vote in favor of the Company in the representation
election. Mercado Hernandez testified:
Mr. Munoz told me that if the factor[y] won the elec-
tion they would throw out the old personnel and stay
with the new ones who were trusted by them.
Vice President of Operations Munoz–Ayala testified he
hired Mercado Hernandez but denied telling him he had
hired him to vote for the Company. Munoz–Ayala also de-
nied telling Mercado Hernandez that if the Company won the
election, it would retain the new employees and get rid of
the more senior employees. Munoz–Ayala stated other em-
ployees were hired about the time Mercado Hernandez was
and that all were hired as a result of increases in production
at the Company.
Although Mercado Hernandez at times exhibited poor re-
call of events and had to have his memory refreshen some-
what extensively, I am persuaded his lack of recall was not
as a result of fabrication on his part. He impressed me as a
credible although somewhat timid witness. His overall testi-
mony had a ring of truth about it. In crediting his testimony,
I am mindful that he is no longer employed by the Company
and could possibly harbor bias against it; however, if he does
harbor such bias, it was not exhibited while he testified.
In discrediting Munoz–Ayala’s testimony, I note that no
records were presented to support his assertion that other em-
ployees were hired at about the same time as Mercado Her-
nandez and that the hirings were based on increased produc-
tion.
Based on the credited testimony of Mercado Hernandez, it
is clear Vice President of Operations Munoz–Ayala unlaw-
fully threatened to discharge the more senior employees at
the Company based on union considerations. Such violates
Section 8(a)(1) of the Act and I so find.
It is alleged at paragraph 8(b)(ii) that Munoz–Ayala on or
about March or April told employees that if the Union won
the election, the Company would close its operations.8
Mercado Hernandez testified Vice President of Operations
Munoz–Ayala said that if the Union won the election, the
Company would finish the contracts it had and close down
in 2 weeks.
Munoz–Ayala denied making any such statement.
I credit Mercado Hernandez’ testimony as outlined above.
Vice President of Operations Munoz–Ayala’s comments
constitute an unlawful threat to close the facility9 and as such
violates Section 8(a)(1) of the Act, and I so find.
It is alleged at paragraph 8(b)(iii) that on or about April,
Munoz–Ayala informed employees that if the Union pursued
processing objections to the election, scheduled benefits
would be withheld.
Bonilla, as has been noted, was a member of the in-plant
organizing committee. He testified that after the Company
learned the Union had filed objections to the election all the
employees were called two-by-two into Vice President of
Operations Munoz–Ayala’s office. Bonilla said he and fellow
worker Vargas were ‘‘called’’ to Munoz–Ayala’s office
where they met with Munoz–Ayala and General Foreman
Guzman. Bonilla testified:
When we arrived at the office Mr. Munoz asked us
what our opinion was of the objections that the Union,
the Congreso Industriales had filed. I answered to him
that I agreed with it—that we agreed to it. He com-
mented that why didn’t we leave that because there had
been a series of promises that they were going to be
given, that if we continued with the objections that that
would go on from one month to five years and that in
that period of time they could not grant us those prom-
ises. And he showed me a document that had the prom-
ises that were to be given to us but they could not be
validated because there existed an objection.
Bonilla testified the promises he was shown related to salary
increases, job classifications, and vacation modifications.10
Vice President of Operations Munoz–Ayala acknowledged
having a conversation with Bonilla in April about the
Union’s objections to the election but testified:
In April of that year some increases had been given
because of the minimum salary motive. Those who
were making $3.85 as I said previously were the ones
that received the increase and the employees who did
not receive the increase asked me why they did not re-
ceive an increase in salary.
. . . .
I explained to them that we were giving those in-
creases because of the law. The others were not given
217CASA DURAMAX, INC.
11 The Union notified the Company in writing on or about Feb-
ruary 20, that employee Torres was one of the Union’s in-plant orga-
nizing committee members.
12 At trial, I granted counsel for the General Counsel’s motion to
amend par. 8(c)(iii) out of the complaint.
13 At the trial, I granted counsel for the General Counsel’s motion
to amend par. 8(d) out of the complaint.
an increase because as we had an objection to the elec-
tions and until that case was not—results were not
reached for that case we could not give them an in-
crease.
Munoz–Ayala denied showing Bonilla an alleged list of
promises the Company had made.
I credit Bonilla’s testimony. I do so for a number of rea-
sons in addition to his most favorable demeanor while testi-
fying. First, I note that a short time after Bonilla’s conversa-
tion with Munoz–Ayala, an employee circulated a petition
seeking to have employees sign that they did not want the
Union to pursue its objections to the election. Second, short-
ly after the conversation, Company President Hernandez
granted the employees job classifications, increases in wages,
and additional vacation benefits. The benefits granted were
the same as ones Bonilla testified Munoz–Ayala showed him
on a written list.
I find the Company violated Section 8(a)(1) of the Act
when Vice President of Operations Munoz–Ayala told em-
ployees that promised benefits would be withheld for as long
as the employees collective-bargaining representative pursued
processing objections to the election. Such attempts to have
employees persuade the Union not to pursue objections con-
stitutes coercive interference with employees’ Section 7
rights.
3. The alleged violations attributed to General
Foreman Jose Guzman
It is alleged at paragraph 8(c)(i) of the complaint that Gen-
eral Foreman Guzman on or about February 19, threatened
employees with plant closing and loss of jobs if said employ-
ees continued to support the Union.
Torres testified that on or about February 19 or 20,11 Gen-
eral Foreman Guzman approached his work area and spoke
of their friendship and how he considered Torres to be his
trusted friend and one in whom he could confide. According
to Torres, General Foreman Guzman then said that if his
‘‘fellow workers continued with the idea of organizing them-
selves, it would cause the plant to shut down.’’
Guzman was not called to testify at the trial. I credit
Torres’ uncontradicted testimony outlined above.
Guzman’s statement constitutes an unlawful threat to close
and as such violates Section 8(a)(1) of the Act. I reject the
Company’s contention that the admitted friendship between
Torres and Guzman somehow lessened the coercive and
threatening nature of Guzman’s comments to Torres.
It is alleged at paragraph 8(c)(ii) that General Foreman
Guzman on or about March informed employees that the
Company was going to assist in establishing an in-house
union, that employees were obligated to vote for the Com-
pany out of loyalty and instructed employees to inform fel-
low employees to vote against the Union.
Former employee William Cesar Cruz–Gonzalez testified
about a conversation he had with General Foreman Guzman
toward the end of March. According to Cruz–Gonzalez,
Guzman told him he had given him (Cruz–Gonzalez) his job
and that he had to vote for the Company because of that fact.
Guzman ‘‘told’’ Cruz–Gonzalez to ‘‘try to convince’’ his
brother-in-law to vote for the Company. Cruz–Gonzalez also
testified Guzman told him that if the employees voted for the
Company, the Company would form ‘‘an in-house union’’
for the employees.
As noted elsewhere, General Foreman Guzman did not tes-
tify. Cruz–Gonzalez seemed frightened at having to testify
and was even unable to recite his address from memory. I
do not, however, find such sufficient to discredit or reject his
uncontradicted testimony. Accordingly, I credit his above-
outlined testimony.
I find General Foreman Guzman’s comments constitute
conduct that tends to impinge on employees’ Section 7
rights. First, Guzman impliedly threatened Cruz–Gonzalez
with termination if he did not support the Company. Guzman
reminded Cruz–Gonzalez that he had gotten him his job and
that ‘‘out of loyalty’’ he owed his allegiance to the Com-
pany. Implicit therein is the understanding that if Cruz-Gon-
zalez’ allegiance to the Company failed to materialize what
he had been given, namely his job, could then be taken
away. Second, General Foreman Guzman’s attempt to have
Cruz–Gonzalez dissuade a relative and fellow worker from
supporting the Union, when viewed in context, also violates
Section 8(a)(1) of the Act and I so find. See, e.g., Culmtech,
Ltd., 283 NLRB 163, 170 (1987). Third, to promise as Gen-
eral Foreman Guzman did, to establish an in-house union if
the employees rejected the Union and voted for the Company
violates Section 8(a)(1) of the Act and I so find.
It is alleged at paragraph 8(c)(iv)12 of the complaint that
General Foreman Guzman on or about April 5, informed em-
ployees the Company would establish an in-house union to
implement its promises.
Bonilla testified credibly, without contradiction, that on the
day of (April 5) but after the Board-conducted election, Gen-
eral Foreman Guzman invited him to ‘‘participate in a cele-
bration’’ that the Company had won the election. Bonilla de-
clined the invitation and General Foreman Guzman told him
not to be that way that what had happened had already hap-
pened. Bonilla stated Guzman said the Company was going
to create an in-house union with Torres as its head so the
employees could ask for the benefits Company President
Hernandez had offered.
I am persuaded General Foreman Guzman’s promise to es-
tablish an in-house union for the purpose of implementing
promises made by Company President Hernandez during the
Union campaign constitutes unlawful interference with em-
ployees’ Section 7 rights in violation of Section 8(a)(1) of
the Act.
4. The distribution of a leaflet
It is alleged at paragraph 8(e)13 of the complaint that on
or about April, the Company distributed a leaflet to employ-
ees informing them that if they participated in a strike, they
would lose their jobs.
That the Company distributed the following leaflet to its
employees during the union campaign is not disputed. The
leaflet set forth in full follows:
218 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
TAKE NOTE TAKE NOTE TAKE NOTE
WHY DO WE SAY THAT DURAMAX CAN CONTINUE ITS
OPERATIONS WITH OR WITHOUT A UNION?
AS WE EXPLAINED TO YOU IN ONE OF THE LEAFLETS
WHICH WE HAVE CIRCULATED, THE UNIONS, SHOULD
THEY WIN THE ELECTIONS, THEY USUALLY GO ON A
STRIKE TO FORCE THE EMPLOYERS TO MAKE CONCES-
SIONS.
THE ONES WHO ARE HARMED IN THESE STRIKES ARE
THE WORKERS BECAUSE THE EMPLOYER CAN CONTINUE
ITS OPERATIONS WITH REPLACEMENTS AND YOU WOULD
BE OUT WITHOUT RECEIVING YOUR PAY.
THERE ARE SITUATIONS WHERE THE STRIKERS COULD
BE REPLACED PERMANENTLY AND YOU COULD LOSE
YOUR JOB.
DON’T ALLOW YOURSELF TO BE DECEIVED,
DURAMAX MIGHT BE ABLE TO CONTINUE OPERATING
. . . NOT NECESSARILY WITH YOU WORKING.
I am persuaded the above statement informs employees
that when unionization occurs, strikes are inevitable (‘‘they
usually go on strike to force the employers to make conces-
sions’’), but ultimately futile (‘‘The ones who are harmed in
these strikes are the workers . . . Duramax might be able to
continue operating . . . not necessarily with you working’’)
and that the employees would lose their jobs as a con-
sequence of a strike or permanent replacement (‘‘the em-
ployer can continue its operations with replacements and you
would be without receiving your pay. There are situations
where the strikers could be replaced permanently and you
could lose your job’’).
The Board in Larson Tool & Stamping Co., 296 NLRB
895 (1989), explained:
The Board’s legitimate concern with protecting an
employer’s right to discuss potentially unfavorable as-
pects of unionization does not extend so far as to sanc-
tion propaganda that overtly raises the prospect of job
loss and leaves employees on their own to divine that
the ‘‘loss’’ is somehow less than total because it is con-
ditioned by a right to return to work after the replace-
ment’s departure. Rather, our statutory duty to protect
employees’ free choice in a representation election re-
quires finding that the Employer’s unqualified statement
about job loss ‘‘may fairly be understood as a threat of
reprisal.’’ As such, it amounts to objectionable conduct
that both violates Section 8(a)(1) of the Act and re-
quires that the election be set aside.
The Board in Baddour, Inc., 303 NLRB 275 (1991), further
explained its rationale as follows:
The Board in Larson Tool & Stamping Co., 296 NLRB
895 (1989), made it clear that employers cannot tell
employees without explanation that they would lose
their jobs as a consequence of a strike or permanent re-
placements. The phrase ‘‘lose your job’’ conveys to the
ordinary employee the clear message that employment
will be terminated. Further, if the employee is also told
that his/her job will be lost because of replacement by
a ’permanent’ worker, the message is reinforced. In
these circumstances, where the single reference to per-
manent replacement is coupled with a threat of job loss,
it is not reasonable to suppose that the ordinary em-
ployee will interpret the words to mean that he/she has
a Laidlaw right to return to the job.
In summary, I find the language in the leaflet at issue con-
stitutes a threat of job loss and as such violates Section
8(a)(1) of the Act.
5. Alleged improved working conditions
It is alleged at paragraph 8(f) of the complaint that on or
about March and April, the Company improved working con-
ditions to dissuade employees from supporting the Union.
Three former employees of the Company testified that be-
tween the time the Union filed its representation petition on
February 16, and the time the Board conducted the represen-
tation election on April 5, the Company made certain im-
provements in the employees working conditions.
Bonilla testified that in March, working conditions
‘‘changed totally.’’ He said the Company installed a water
fountain in the employees’ working area. He explained there
had previously been a water fountain ‘‘in front of the of-
fices’’ but ‘‘it was far for us to go to.’’ Cruz–Gonzalez also
testified a new water fountain was installed and both he and
Torres stated the Company brought in ‘‘bottled’’ or ‘‘cans
of’’ water for the employees to drink. Cruz–Gonzalez,
Bonilla, and Torres each testified that during this time (Feb-
ruary through April) the Company commenced to bring in ‘‘a
water truck’’ to sprinkle the construction dust along the
streets and in the working areas. Bonilla explained ‘‘a lot of
cement is used’’ at the construction site creating ‘‘a lot of
dust.’’
Torres testified:
The workers had asked for a time clock to be put in.
And our previous petition had not been met. And dur-
ing the election campaign the Company handed a sheet
out to inform us that the time clock was going to be
put in.
On March 26, Vice President of Operations Munoz–Ayala
issued a memorandum to all employees which reads in perti-
nent part as follows:
Beginning today, Monday, March 26, 1990, an elec-
tronic time clock will be used to control the arrival and
departure of all personnel. The same will be situated in
front of the purchasing and personnel office.
. . . .
We hope that you will use it well, since it is for your
benefit.
Bonilla testified that before the time clock was installed, the
employees’ times were ‘‘never accurate’’ but following the
installation, the times were ‘‘more precise . . . more accu-
rate.’’
Torres and Bonilla testified that during the February
through April time frame the Company ceased charging em-
ployees a 10-percent surcharge on construction materials pur-
chased from the Company for personal use. Torres explained
‘‘[s]ome fellow workers bought material[s] at cost when be-
forehand they were charged 10 percent above the cost
price.’’ Bonilla testified the Company also started providing
219CASA DURAMAX, INC.
14 There are some invoices in this timeframe that do not reflect the
surcharge, however, the invoices that do not are for tools that were
lost or for empty oil drums sold to the employees as garbage drums.
a company vehicle to transport the materials to the employ-
ees’ homes.
Counsel for the General Counsel presented invoices that
reflect a 10-percent surcharge on materials purchased from
the Company by the employees in December 1989 and Janu-
ary and February.14 Counsel for the General Counsel also
presented invoices that reflect employees were not charged
the extra 10 percent on construction materials they purchased
in March, April, and May.
Vice President of Operations Munoz–Ayala testified
‘‘water cans have always existed at the Company’’ but added
‘‘[w]hat I did was to bring in some more.’’ Munoz–Ayala
said the bringing in of additional water cans and the filing
of the Union representation petition ‘‘more or less . . . coin-
cided one with the other.’’ He testified the Company also
started sprinkling water on the dusty construction areas ‘‘dur-
ing that period of time.’’ Munoz–Ayala also testified that
during that same time frame the Company installed a water
fountain but he added it did so where one had previously ex-
isted. Munoz–Ayala also acknowledged installing a timeclock
which allowed more control over time keeping. He said he
had observed discrepancies between the hours marked and
the hours paid so ‘‘around the beginning of February’’ he
had ‘‘the idea to put in a time clock.’’
I am persuaded the timing of providing drinking water for
the employees—either by additional cans or a newly installed
water fountain; sprinkling the construction areas with water
to settle the dust; selling construction materials to the em-
ployees at the Company’s cost; and, installing a previously
requested timeclock was more than coincidental with the
Union’s filing of the representation petition. I am persuaded,
in agreement with counsel for the General Counsel, that the
Company took the above actions in an effort to lure its em-
ployees away from supporting the Union. The timing of the
improvements alone causes me to reject the Company’s con-
tention they were instituted in the due course of business and
not in an effort to dissuade the employees from supporting
the Union. The Company failed to demonstrate any history
or past practice of improving its employees’ working condi-
tions in any manner similar to what it did herein. In that re-
gard, there is no showing the Company had ever before at-
tempted to control construction site dust. The timeclock, al-
though requested for some time by the employees and assert-
edly thought of by Vice President of Operations Munoz–
Ayala in early February, was not installed until mid March
when the Union’s organizational campaign was well under-
way. The Company’s past practice with respect to selling
construction materials to its employees demonstrates it made
a change in that regard in that it ceased accessing a sur-
charge for purchased construction materials after the Union
came on the scene.
Accordingly, I find, as alleged in the complaint, that the
Company in March and April improved working conditions
for its employees to dissuade them from supporting the
Union. Such violates the Act and I so find. See, e.g., Mont-
gomery Ward & Co., 288 NLRB 126, 127 and cases cited
at fn. 6 (1988); Walter Garson, Jr. & Associates, 276 NLRB
1226, 1240–1241 (1985).
C. The 8(a)(3) Allegations
It is alleged at paragraph 9 of the complaint that on or
about November 30, the Company granted its employees
Torres, Bonilla and Vargas wage increases that were less
than the wage increases it granted its other production and
maintenance employees.
As is noted elsewhere in this decision, Company President
Hernandez informed the employees on or about November
30, they were being reclassified and given wage increases. I
have concluded, again as set forth elsewhere in this decision,
that Hernandez announced the reclassifications and wages
and other benefits increases in order to reward the employees
for rejecting the Union and to impinge on the employees’
freedom of choice in any future Board-conducted election.
Notwithstanding the above, a further issue must now be ex-
amined and that is whether the Company discriminatorily se-
lected employees for various classifications and resulting
wages and other benefits increases based on their support or
lack thereof for the Union.
The Company contends the reclassifications and resulting
wages and other benefits increases were motivated solely by
business considerations. Counsel for the General Counsel, on
the other hand, asserts the Company classified employees
Torres, Bonilla, and Vargas lower than they should have
been and that as a result, they received wages and other ben-
efits increases that were less than they should have received
and that the Company was motivated at least in part by the
three’s support for the Union.
Torres, as noted elsewhere in this decision, had worked for
the Company for approximately 5 years and had been identi-
fied as one of the Union’s in-plant organizers in a February
20, letter from Union Vice President Figueroa to the Com-
pany. Torres testified that on or about November 30, the
Company classified its carpenters and that he was classified
as a carpenter II and given a 35-cent-per-hour wage increase
which brought his hourly wage rate from $4 to $4.35 per
hour. He testified that carpenters I received a 50-cent-per-
hour wage increase which brought those employees hourly
wage rates from $4 to $4.50 per hour. Torres testified two
employees, namely Angel Aponte and Jose Juan Sanchez,
were classified as carpenters I while he, Miguel Aponte,
Hector Fermen Serrano, and Orlando Perez were classified as
carpenters II. He said the Company explained that those clas-
sified as carpenters I ‘‘did special work’’ while those classi-
fied as carpenters II did the ‘‘simplest jobs.’’ Torres testified,
without contradiction, that he performed all facets of work
in the home building industry. Torres specifically testified he
had worked as a ‘‘mason,’’ ‘‘a kitchen carpenter,’’ ‘‘a
roof[ing] carpenter,’’ and ‘‘a module carpenter.’’
Torres acknowledged on cross-examination that two of the
employees that received the same carpenter II classification
that he did actively supported the Company and opposed the
Union during the organizational campaign. He also acknowl-
edged that the two employees who were classified as car-
penters I could perform ‘‘a lot of jobs, different job’’ but
added he ‘‘could do the same jobs they did.’’
Bonilla worked for the Company for approximately 5
years as a welder under General Foreman Guzman. Vargas,
who is still employed by the Company, has worked as a
welder for approximately 6 years. Both Bonilla and Vargas
were known supporters of the Union. Bonilla was identified
220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 The duties of one occupying an accommodator’s position was
not explained in any detail in the record.
16 The duties of one occupying a fabricator’s position was not ex-
plained in any detail in the record.
in Union Vice President Figueroa’s February 20 letter to the
Company and Vargas wore union T-shirts at work.
Bonilla testified, without contradiction, that six employees
were performing welding tasks at the Company at the end of
November when the Company classified its welders into
welders I, II, and III. Bonilla testified he, Ariel Calon, and
Vargas were classified as welders II. Those working as weld-
ers II had their hourly wage rates increased form $4 to $4.35
per hour effective December 1. Those classified as welders
I had their hourly wage rates increased from $4 to $4.50 ef-
fective December 1. Bonilla stated that Oscar Diaz and
Anibal Davila were classified as welders I and that Javior de
Jesus was classified as a welder III. Bonilla said he was told
the Company selected Diaz as a welder I because he was an
‘‘accommodator’’15 and Davila was selected because he was
‘‘a fabricator.’’16 Bonilla said that before Davila, who is
General Foreman Guzman’s brother-in-law, was brought in at
the Company, he and Vargas worked as fabricators. Vargas
testified he worked as a fabricator and that after Davila left
the Company, he did Davila’s job. Bonilla testified he and
Vargas were not satisfied with their classifications and as a
result they asked Vice President of Operations Munoz–Ayala
‘‘what had happened’’ and why they had been classified ‘‘so
badly.’’ According to Bonilla, Munoz–Ayala said he had
nothing to do with the reclassifications, that Company Presi-
dent Hernandez, the Company’s attorney, and company offi-
cial Figueroa had made the decisions regarding the classifica-
tions. Bonilla testified they tried to speak with Company
President Hernandez but ended up speaking with Figueroa.
Company official Figueroa told them Vice President of Oper-
ations Munoz–Ayala and General Foreman Guzman had
done all the reclassifications. Bonilla said they then returned
to Vice President of Operations Munoz–Ayala who told them
what had already been done with respect to the classifica-
tions was it and nothing more could be done, and told them
‘‘if you don’t like how it was done you can come to the of-
fice and present your resignation.’’
Bonilla acknowledged on cross-examination that Diaz had
more seniority than he did but not more than Vargas.
Vice President of Operations Munoz–Ayala testified the
reclassification of employees was effective on December 1.
In addressing the reasons for the reclassifications, he testi-
fied:
One of the reasons that we made a reclassification
was to have an idea of how to place the employees.
The other reason was that it had been a long time since
they had received an increase and we—there was a pos-
sibility—we had the possibility of losing key employ-
ees.
Munoz–Ayala explained the Company established three clas-
sifications— carpenters/welders I, II, and III. He testified that
in classifying employees:
We used a series of factors, seniority, ability to do
the job, the type of job that they did, and the versatility
that they could achieve on the job.
Munoz–Ayala testified Torres was classified as a carpenter
II and Bonilla and Vargas were classified as welders II based
on the above-listed factors. He testified the Union activities
of the three employees played no part in their being assigned
the classifications indicated.
As to the Company’s failure to classify employee Torres
as a carpenter I and employees Bonilla and Vargas as weld-
ers I and to pay them accordingly, the credited evidence
shows as follows: The Company opposed unionization at its
facility to the extent of unlawfully threatening to close if the
Union won the election; it threatened to discharge employees
because of their membership in or activities in support of the
Union; it threatened employees they would lose their jobs if
they participated in an economic strike at the Company; it
promised employees to establish, promote, and/or sponsor an
employee committee as an alternative to the Union for the
employees to secure better working conditions; informed its
employees that promised benefits would be withheld as long
as the Union processed objections to the Board-conducted
election; and it announced and granted wages and other ben-
efits increases to its employees for rejecting the Union. It is
beyond dispute that Torres, Bonilla, and Vargas supported
the Union and that the Company knew of their support.
Torres and Bonilla were identified to the Company as in-
plant organizers while Vargas wore union T-shirts at work.
The Company clearly viewed Torres as the leading employee
supporting unionization at the Company. Immediately after
the Board-conducted election was held on April 5, Company
President Hernandez told Torres he had expressed himself
very well during the campaign and that he was going to form
an employee committee to work with the Company and that
Torres could head the committee. President Hernandez also
told Torres in that same conversation that the law had not
permitted him to say so earlier but that if the Union had won
the election, he would have closed the plant. That Bonilla
was viewed as favoring the Union is demonstrated in part by
Vice President of Operations Munoz–Ayala’s asking Bonilla
his opinion regarding the objections the Union had filed to
conduct affect the results of the election and Bonilla’s an-
swering that he agreed with the Union’s actions. Munoz–
Ayala even asked Bonilla why the employees didn’t leave
the objections alone because it interfered with the Com-
pany’s giving the employees a number of promised benefits
such as job classifications, salary, and vacation increases. Fi-
nally, these three known union supporters, although testifying
they were fully qualified, were not selected for classifications
as carpenters or welders I where their wages would have
been increased to the top of the Company’s pay scale.
The foregoing evidence and the record as a whole shows
at least prima facie that the Company failed to classify
Torres as a carpenter II and Bonilla and Vargas as welders
II because of their support for and activities on behalf of the
Union. Accordingly, such actions by the Company con-
stitutes unfair labor practices unless the Company can dem-
onstrate by a preponderance of the evidence that it would
have classified the three as it did even in the absence of any
union activities on their part. Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982). See also NLRB v. Transportation Manage-
ment Corp., 462 U.S. 393 (1983), in which the Supreme
Court sanctioned the Wright Line analysis. The Company
failed to discharge its burden.
221CASA DURAMAX, INC.
17 No evidence was presented in support of Objection 10. I shall
recommend that Objection 10 be overruled.
18 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendments to 26 U.S.C. § 6621.
19 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.
Although the Company contends it had business justifica-
tions for the classifications given the employees, it failed to
support such with objective evidence. The Company did not
present records to show employee seniority which was one
of the four factors it claims it utilized in classifying its em-
ployees. The Company failed to present any evidence to re-
fute Torres’, Bonilla’s, and Vargas’ claims they had the abil-
ity and versatility to perform the job duties of category I
classifications. The Company failed to present evidence to
demonstrate how the factors it allegedly used to classify em-
ployees applied in general or to the three employees in par-
ticular. The Company failed to establish the job duties per-
formed by the three employees at question herein or to high-
light how the three failed to meet the standards or perform
the tasks necessary for category I classifications.
In summary, I find the Company failed to demonstrate it
would have classified and paid the three employees in ques-
tion as it did even in the absence of any union activities on
their part. Accordingly, I find the Company violated Section
8(a)(3) and (1) of the Act when on or about November 30,
it failed to classify its employees Torres, Bonilla, and Vargas
in work and pay classifications I.
D. The Objections
Having found support in the record for certain of the ob-
jections to the conduct affecting the results of the election
filed by the Union (Petitioner) in Case 24–RC–7305, namely,
Objections 2 and 1117 and having also concluded that such
conduct violates Section 8(a)(1) of the Act, I conclude the
Company has interfered with the exercise of employee free
choice in the election conducted on April 5. Accordingly, I
recommend that election be set aside and a second election
be directed.
CONCLUSIONS OF LAW
1. Casa Duramax, Inc. is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Congreso de Uniones Industriales de Puerto Rico is a
labor organization within the meaning of Section 2(5) of the
Act.
3. The Company violated Section 8(a)(1) of the Act: by
threatening to close its facility if the Union won the rep-
resentation election or if the employees continued to seek
union representation; by promising to establish, promote,
and/or sponsor an employee committee (or in-house union)
as an alternative to the Union for employees to secure better
working conditions; by announcing and granting wages and
other benefits increases to reward its employees for rejecting
the Union and/or to influence their choice with respect to
union representation in any future Board-conducted represen-
tation elections; by threatening to discharge employees be-
cause of their support of or membership in the Union; by
telling employees that promised benefits would be withheld
so long as the Union pursued processing objections to the
Board conducted representation election; by threatening its
employees they would lose their jobs if they participated in
an economic strike at their facility; by impliedly threatening
to terminate employees if they did not support the Company
and oppose the Union; by asking employees to dissuade fel-
low workers from supporting the Union; and, by improving
working conditions to dissuade employees from supporting
the Union.
4. The Company violated Section 8(a)(3) and (1) of the
Act by, on or about November 30, failing and refusing to
classify Wilberto Torres as a carpenter I and by on or about
that same date failing and refusing to classify Manuel Bonilla
and Melquiades Vargas as welders I and by failing and refus-
ing to pay these three employees the wages prescribed for
carpenters I and welders I.
5. By certain of the unfair labor practices found herein, the
Company has interfered with the freedom of choice of its
employees and it is recommended that the election held on
April 5, in Case 24–RC–7305 be set aside and that a second
election be directed.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Company has violated Section
8(a)(1) and (3) of the Act, I recommend that it be required
to cease and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.
Having found that the Company unlawfully failed to clas-
sify Torres as a carpenter I and Bonilla and Vargas as weld-
ers I, I shall recommend that they be so classified imme-
diately and that they be made whole for lost earnings they
suffered by reason of the failure to be so classified, with in-
terest.
Backpay shall be computed in the manner prescribed in F.
W. Woolworth Co., 90 NLRB 289 (1950), plus interest, as
computed in New Horizons for the Retarded, 283 NLRB
1173 (1987).18
Finally, I recommend the Company be ordered to post an
appropriate notice to employees attached hereto as ‘‘Appen-
dix’’ for a period of 60 days in order that employees may
be apprised of their rights under the Act and the Company’s
obligation to remedy the unfair labor practices. I recommend
the notice to employees be posted both in English and in
Spanish.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended19
ORDER
The Company, Casa Duramax, Inc., Coto Laurel, Ponce,
Puerto Rico, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Classifying Torres as a carpenter II rather than as a
carpenter I, and Bonilla and Vargas as welders II rather than
as welders I because of their membership in or activities on
behalf of the Union.
222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 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.’’
(b) Threatening to close its facility if the Union won the
representation election or if the employees continued to seek
union representation.
(c) Promising its employees to establish, promote, and/or
sponsor an employee committee as an alternative to the
Union for the employees to secure better working conditions.
(d) Announcing and granting wages and other benefits in-
creases to reward employees for rejecting the Union and/or
to influence their choice with regard to union representation
in any future Board-conducted representation elections.
(e) Threatening to discharge employees because of their
support of or membership in the Union.
(f) Telling employees that promised benefits would be
withheld so long as the Union pursued processing objections
to the Board-conducted representation election.
(g) Threatening employees they would lose their jobs if
they participated in an economic strike at the Company.
(h) Impliedly threatening to terminate employees if they
did not support the Company and oppose the Union.
(i) Asking employees to dissuade their fellow workers
from supporting the Union.
(j) Improving working conditions to dissuade employees
from supporting the Union.
(k) 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) Classify Torres as a carpenter I and Bonilla and Vargas
as welders I and make them whole for the loss of earnings
they suffered as a result of their not being so classified in
the manner set forth in the remedy section of this decision.
(b) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, time cards, personnel
records and reports, and all other records necessary to ana-
lyze the amount of backpay due under the terms of this
Order.
(c) Post at its Coto Laurel, Ponce, Puerto Rico facility
copies of the attached notice marked ‘‘Appendix.’’20 Copies
of the notice, on forms provided by the Regional Director for
Region 24, after being signed by the Company’s authorized
representative, shall be posted by the Company immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Company to ensure that the notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER RECOMMENDED that the results of the elec-
tion held on April 5, 1990, in Case 24–RC–7305 be set aside
and that the representation matter be remanded to the Re-
gional Director for Region 24 for the purpose of conducting
a new election at such time as she deems the circumstances
permit the free choice of a bargaining representative.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT threaten to close our facility if the Union
wins the representation election or if our employees continue
to seek union representation.
WE WILL NOT promise to establish, promote, and/or spon-
sor an employee committee as an alternative to the Union for
our employees to secure better working conditions.
WE WILL NOT announce and/or grant wages and other ben-
efits increases to reward our employees for rejecting the
Union and/or to influence their choice with respect to union
representation in any future Board-conduct representation
elections.
WE WILL NOT threaten to discharge our employees because
of their support of or membership in the Congreso de
Uniones Industriales de Puerto Rico or any other labor orga-
nization.
WE WILL NOT inform you that promised benefits will be
withheld so long as the Union pursues processing objections
to the Board-conducted representation election.
WE WILL NOT threaten our employees that they will lose
their jobs if they participate in an economic strike at our fa-
cility.
WE WILL NOT, impliedly or otherwise, threaten to termi-
nate our employees if they do not support the Company and
oppose the Union.
WE WILL NOT ask our employees to dissuade their fellow
workers from supporting the Union.
WE WILL NOT improve working conditions to dissuade our
employees from supporting the Union.
WE WILL classify Wilberto Torres as a carpenter I, and
employees Manuel Bonilla and Melquiades Vargas as weld-
ers I, and WE WILL make them whole for the wages they lost
as a result of our failure to so classify them.
CASA DURAMAX, INC.