Central Air Corp.

National Labor Relations Board - Board Decisions

Jan 17, 1975

216 N.L.R.B. 204 (N.L.R.B. 1975)

204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Central Air Corp. and Confederacion Obrera Puertor-
riquena. Case 24-CA-3478
January 17, 1975
DECISION AND ORDER
BY MEMBERS JENKINS , KENNEDY, AND
PENELLO
On November 13, 1974, Administrative Law Judge
Nancy M. Sherman issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions to the Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the General Counsel's
exceptions i and has decided to affirm the rulings,
findings, and conclusions of the Administrative Law
Judge and to adopt her recommended Order.
ORDER
work, close the Company's business, or blacklist
employees for future employment references.
WE WILL NOT promise benefits to our employ-
ees if they reject a union.
WE WILL NOT ask our employees about union
activity in a manner constituting interference,
restraint, or coercion.
WE WILL NOT lay off, discharge, or otherwise
discriminate against any employee in order to
discourage membership in Confederacion Obrera
Puertorriquena, or any other union.
WE WILL offer to reinstate Felipe Torres
Figueroa, Francisco Gomez Lopez, and Alpheus
T. Joseph to their former or substantially equiva-
lent jobs or, if no such jobs exist, put these
employees on a preferential hiring list.
WE WILL make these employees whole, with
interest , for loss of pay resulting from their layoff
or discharge.
WE WILL NOT in any manner interfere with,
restrain , or coerce employees in the exercise of
their rights under the Act.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Central Air Corp.,
Santurce, Puerto Rico, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order, except that the attached notice
is substituted for the notice of the Administrative
Law Judge.
I In accord with the General Counsel 's exceptions, the second full
paragraph of the Notice to Employees is changed to read as follows-
WE WILL NOT threaten employees with loss of their jobs or other
punishment for union activity, nor will we make threats to subcontract
unit work, close the Company's business , or blacklist employees for
future employment references.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had the
opportunity to present their evidence, it has been
decided that we violated the law and we have been
ordered to post this notice. We intend to carry out
the order of the Board and abide by the following:
WE WILL NOT threaten employees with loss of
their jobs or other punishment for union activity,
nor will we make threats to subcontract unit
CENTRAL AIR CORP.
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN , Administrative Law Judge: This
proceeding was heard at Hato Rey, Puerto Rico, on
September 25, 26, and 27, 1974,1 pursuant to a charge filed
on March 1, 1974, an amended charge filed on March 15, a
second amended charge filed on March 22, a third
amended charge filed on April 4 , and a complaint issued
on June 10. The case presents the questions of (A) whether
Respondent, in violation of Section 8(a)(1) of the National
Labor Relations Act, as amended (the Act) interrogated its
employees about their union activity, warned and directed
them to refrain therefrom, threatened its employees with
reprisals for union activity, and promised them benefits to
induce them to refrain therefrom; and (B) whether
Respondent , in violation of Section 8(a)(3) and (1) of the
Act, terminated employees Felipe Torres Figueroa, Fran-
cisco Gomez Lopez, Dolores Galindez Ramos,2 and
Alpheus T. Joseph to discourage union activity.
Upon the entire record, including my observation of the
witnesses , and after due consideration of a posthearing
memorandum filed by counsel for the General Counsel, I
make the following:
I All dates hereafter are 1974 unless otherwise stated
2 The first three of these employees follow the Latin custom of using
their mother's surname after their father 's surname . They will hereafter be
called , respectively , Torres, Gomez, and Galindez.
216 NLRB No. 40
CENTRAL AIR CORP.
FINDINGS OF FACT
1. JURISDICTION AND THE UNION 'S STATUS AS A
LABOR ORGANIZATION
Respondent is a Puerto Rico corporation with its
principal office and place of business in Santurce , Puerto
Rico, where it provides installation, repair, and mainte-
nance services on central air-conditioning units in Puerto
Rico. During the year preceding the issuance of the
complaint , a representative period, Respondent received
goods and materials valued in excess of $50,000 from other
enterprises in Puerto Rico which had received such goods
and services directly from points outside Puerto Rico. I
find that, as Respondent concedes , it is engaged in
commerce within the meaning of the Act,3 and that
exercise of jurisdiction over its operations will effectuate
the policies of the Act.
Confederacion Obrera Puertorriquena, herein called the
Union, is a labor organization within the meaning of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
On January 4, all eight employees in Respondent's shop
signed union authorization cards at the office of Union
Representative Frank Ruiz .4 On January 9 or 10 , Respon-
dent's president, Pedro J. DelValle (herein called Del-
Valle), received a letter from Ruiz that he wanted to
represent Respondent 's employees . About January 15, the
Union filed a petition for a representation election. On
January 24, Respondent and the Union signed an
agreement for a consent election , which the Union won by
a unanimous vote on February 14. No objections to the
election were filed , and the Union was duly certified.
Thereafter , Ruiz came to DelValle 's office to find out if
he was ready to negotiate . DelValle said that he was ready
and was waiting for Ruiz. Later, Ruiz brought DelValle a
proposed contract . DelValle then sent Ruiz a letter
proposing a meeting at 2 p.m. on April 18, 1974, at
DelValle's office. At the appointed time and place, two
unidentified persons appeared and asked DelValle to
discuss the proposed contract with them , but he refused on
the ground that he did not know them and they had no
written authorization from Ruiz . Immediately thereafter,
DelValle sent Ruiz a letter proposing a meeting on May 8.
During that meeting , which lasted a couple of hours, the
parties agreed to sign a contract different in some
undisclosed respects from the contract proposed by Ruiz.
Ruiz said that he had an appointment elsewhere but would
come back the next day to sign the contract. Ruiz never did
come back. As of May 8, two employees in the appropriate
unit were actively working for Respondent.
3 N.L.RB. v. Security National Life Insurance Co., 494 F.2d 336, 337-338
(C.A. I, 1974).
This finding is based on the credited testimony of employees Joseph,
B. The Alleged Independent 8(a)(1) Violations
1. Alleged conversations with employee Joseph
205
About a week after the filing of the January 15 petition,
Company President DelValle asked employee Joseph if he
knew anything about the Union, if he knew who brought
the Union into the Company, and if he knew anyone who
brought cards into the Company. Joseph replied that he
knew nothing about it. DelValle said that someone brought
the Union in. Joseph then asked why he did not call all the
employees together for a conference and find out who
brought the Union in and why. DelValle said that he was
going to wait until after the election. Joseph asked why he
should wait that long. DelValle said that if half the
employees voted for the Union and half against, he was
going to fire the employees that voted for the Union.
Joseph asked what DelValle was going to do if all the
employees voted for the Union. DelValle replied that in
that event he was going to close the Company and
subcontract all the contract work.
On a subsequent occasion, DelValle again asked Joseph
if he knew who brought the Union into the Company, and
Joseph again said that he did not know. DelValle then said
that he thought Felipe Torres was the leader in the union
activities, and that DelValle "was going to fire Felipe, fire
the employees and he hopes Felipe gets a job for the rest of
the employees." DelValle offered to give a raise to Joseph
and his helper (employee Jose de la Paz) if Joseph would
help out DelValle by not negotiating with the Union and
by signing a letter, to be drafted by DelValle, taking
Joseph's name off his union card. Joseph said that he was
going to think about it. Later that same day, DelValle
called Joseph to his office, again promised him a raise if he
signed a letter revoking his union card, and said that
DelValle "swears" Tones was the one who brought the
Union in. DelValle asked Joseph whether he was going to
"cooperate" with him; Joseph replied that he was in favor
of the majority. DelValle said that he was going to fire all
the employees, change his business name, and move the
business from Santurce to Levittown (the city where
DelValle lived), because he did not want to negotiate with
the Union. He also said that because he did not want to
"cooperate" with the Union, "anywhere the employees go
and find a job, . . . he was going to make them lose their
job and make life miserable."
In March, after the Union won the election, DelValle
went over to Joseph and said that because of the union
activities, DelValle was going to close the business, change
the Company's name , have "new Company laws," get rid
of all the employees, put a shop in Levittown, and have all
new employees. Joseph said that he thought Respondent
should permit its servicemen to explain to the customers
what was the matter with their malfunctioning air-condi-
tioning units; DelValle replied that he knew, what was
wrong but in the future was going to correct it. Later that
month, DelValle called Joseph to his office and told him
that he wanted Joseph to accept a subcontract for all of
Respondent's service and maintenance work "and in that
Torres , and Gomez . On the basis of the witnesses ' demeanor, I do not
believe employee Galmdez's testimony that he did not sign a card.
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
way if [Joseph] had the rest of the employees [DelValle]
doesn't have to negotiate with the Union." Joseph replied
that he would accept the work on condition that DelValle
subcontracted the rest of the work to the employees he had
fired .5 DelValle said no, and told Joseph that if he would
give DelValle his resignation , DelValle would give him "a
recommendation letter, saying that [he] had 4,000 hours, to
get a diploma ."6 Joseph replied that he would think about
it. DelValle then said that if Joseph did not want to
"cooperate" with him, he was going to find some way to
get rid of Joseph. Joseph told him to go ahead and do what
he felt like , whereupon DelValle said that if he could not
get any way to get rid of Joseph, he was going to accuse
him of stealing something . DelValle told Joseph that he
was not going to negotiate with the Union , that he was
going to close the business , fire everybody , move the
business to Levittown, and subcontract the work because it
was cheaper for him and easier.
About March 15, DelValle told Joseph that he had, to
"throw away all the employees" - that is, "fire them out"
- and close the shop because of the union activities and
because "this type of employees that he has and people like
Frank Ruiz are people who put bombs into his business."
Joseph said that he did not think that the employees would
do such violent acts . Del Valle replied that he did not "trust
nobody." 7
2. Alleged conversations with employee Torres
About January 30, DelValle asked employee Torres
whether he knew there was a petition for an election, and
said that he was not opposed to an election because he was
sure that he was going to win the election, and that, after
the election was won, he would suspend the Union's
"authors," whose identity he already "more or less" knew.
On a later occasion, DelValle told Torres at his
At this time , Gomez , Torres, and Galindez were off the payroll.
a Joseph was enrolled in an on-the-job training program sponsored by a
school called the Technical Training Association , where he also attended
classes once a week . Under DelValle's contract with Technical Training, he
had to subnut a report about the things Joseph had been doing, certify that
he had been working in the specific activity of a refrigeration mechanic
under DelValle's supervision , and give an evaluation of how he had
improved while taking classes . If Joseph eventually passed an examination
by the Board of Examiners, it would award him the license of refrigeration
mechanic in Puerto Rico.
7 My findings under this heading are based on Joseph 's credited
testimony . DelValle initially denied talking about the Union with any
employee . DelValle specifically denied talking with Joseph about the
Union , asking him who was the organizer of the Union , telling him that the
plant would be closed and the work subcontracted if the Union won, telling
him that if the Union won he would have to fire all the employees to avoid
negotiating with the Union , and telling Joseph that he would accuse him of
stealing in order to get rid of him . Del Valle further testified that he did not
offer Joseph a wage increase if he cooperated with the Company against the
Union "because his salary was stipulated by the contract I signed with
Technical Training" (supra, In . 6); but immediately thereafter , he admitted
that this contract permitted Respondent to pay Joseph more than was called
for. In view of DelValle 's testimony about the alleged wage offer, the
considerations summarized infra, fns. 8 and 11 , and the witnesses'
demeanor, I credit Joseph over DelValle with respect to the matter
summarized in the text.
A different conclusion is not suggested by Respondent 's contention that
Levittown zoning restrictions forbade Respondent to operate its business
there . In threatening to move there , DelValle might well have been
consciously bluffing. Moreover, credence was lent to such threats by the
fact that certain Levittown businesses do operate in violation of zoning
worktable that the unions were not bad, that Del Valle was
not opposed to them , and that the employees had found in
Ruiz a "very weak leader" who would get the employees'
quarters from them but could do nothing for them since he
had never gone to school . DelValle said that "he would win
the election , that he knew the persons who were introduc-
ing the Union and that the persons who were introducing it
were doing something wrong and that that was going to
hinder [Torres ] in [his ] future work because [DelValle] was
going to be on the lookout watching the places where
[Torres ] went to look for a job in order to cause [him]
harm when [he] looked for a job in the future ." DelValle
also said that after the election the people would be
suspended and the shop would be closed ; but he did not
explain which people would be suspended . He said that
unions were not bad , but they caused harm to the
companies.s
3. Alleged conversations with employee Gomez
During the period material here, Respondent's secretary
was Miguel DelValle , who is Pedro R. DelValle's brother
and it married to employee Gomez' sister . Miguel Del Valle
and his wife pay weekly visits to her mother, with whom
Gomez lives. During one of these visits after the Union
filed its representation petition, Miguel DelValle told
Gomez that the Union was no good, that it would steal the
employees' money, that Gomez should vote in favor of
Respondent because it had done him many favors, that he
had better start resigning and getting another job, and that
if the Union won "they" would close the shop.9
On at least two occasions after the petition was filed,
Pedro R. DelValle told employees Gomez, de la Paz, and
restrictions , and both president Pedro R. DelValle and Respondent's then
secretary (Pedro's brother Miguel) live there.
A My findings under this heading are based on the credited testimony of
Torres , who testified that this last conversation occurred at his worktable on
a workday "[s]ome days" or "about four days" before the February 14
election . Del Valle testified that he never talked about the Union with Torres
or any other employee , and that he never told Torres that labor unions are
bad things . On cross-examination , DelValle pointed out that 4 days before
the election was a Sunday , when the shop did not work . When asked
whether he acknowledged that Torres "had been telling a mistake as to the
date," Del Valle replied, "Well, both things . He was mistaken [as to] the date
and he was not telling the truth ." Because DelValle's allegation of a
mistaken date tacitly assumes that the incident did occur at some time,
because of the demonstrated falsity of DelValle 's like testimony regarding
another conversation (infra, In. 11), and in view of the witnesses ' demeanor,
I credit Torres.
8 My findings about the conversation between Gomez and Miguel
DelValle are based on Gomez' credited testimony . After denying that he
ever made such remarks to Gomez, Miguel DelValle went on to testify that
he had no conversations whatever with Gomez between January 1, 1974,
and the date of Miguel DelValle 's testimony on September 24, 1974. Miguel
DelValle conceded that he and his wife visited the Gomez household almost
every weekend during this period . While the household is a large one, and
Miguel DelValle testified to an impression that Gomez was for some reason
trying to avoid him, I cannot believe that Miguel Del Valle did not speak to
Gomez during any of these 30-odd visits. Moreover , as found infra,
Respondent later terminated Gomez to discourage union activity; and
Miguel DelValle had a personal financial interest in seeing to it that Gomez
thereafter got a job somewhere else (infra, In. 25). For these reasons, and
after considering the witnesses ' demeanor, I credit Gomez over Miguel
DelValle.
CENTRAL AIR CORP.
William Rivera that if the Union won he was going to close
the Company.10
4. Alleged conversation with employee Galindez
About 2 weeks before the election, DelValle asked
employee Galindez whether he knew anything about the
Union and whether he had signed a union card . Galindez
replied that he had not signed a card . 1' He had , however,
done so (supra, fn. 4).
C. The Allegedly Discriminatory Terminations
1. Gomez
About July 1972, Company Vice President Miguel
DelValle offered a job to Gomez , who is his brother-in-law.
Gomez' immediate superior was supervisor Efrain Rami-
rez, who was the head of the shop . At the time of Gomez'
February 1974 termination, he was receiving $ 1.75 an hour.
Gomez spent most of his working time as a mechanic's
helper, performing maintenance and service work, but he
sometimes worked as an electrician or installed ducts. Two
or three times a month, he went to the field and worked
alone, performing maintenance work , without the direction
of Ramirez , DelValle , or a master mechanic . The rest of
the time, he was under the direction of one of these three
men. During one period of time , Gomez worked as a helper
for mechanic Vazquez , who quit prior to the election.
Gomez then began to work as a helper for mechanic
Rivera , who quit shortly after the election . Respondent
ordinarily assigns a particular helper to work with a
particular mechanic as a two-man team.
As previously found, prior to the election Company
Secretary Miguel DelValle advised Gomez to start looking
for another job because if the Union won the election,
Respondent would close the shop. Further , as previously
found, prior to the election Company President Pedro J.
DelValle repeatedly told Gomez and other employees that
if the Union won he would close the Company.
Prior to the election , all the employees regularly worked
40 hours a week . After the election, employees Gomez,
Joseph , and Joseph 's helper, de la Paz, were put on
"standby" (for which they were paid) during the mornings,
and were then sent home if there was no work.12
On February 19, 1974 , Supervisor Ramirez put Gomez
on "standby" duty at 8 a.m. At 10:30 a.m., Company
President DelValle told Gomez that DelValle could cover
the maintenance work with only one mechanic and one
helper and that Gomez was discharged.
10 This finding is based on Gomez' credited testimony . DelValle denied
ever talking to Gomez about his labor activities. However , in view of the
witnesses ' demeanor and the demonstrated falsity of DelValle's like
testimony regarding another conversation (infra, fn. 11), I credit Gomez.
ii These findings are based on Galindez ' credited testimony. On direct
examination , DelValle denied talking to Galindez during March about his
union activities . As noted in the text , Galindez testified that their discussion
occurred about 2 weeks before the February 14 election . On direct
examination and initially on cross-examination , DelValle denied having
interrogated any employees about their union activities ; indeed, he denied
having spoken to any of the employees about any activities for the Union.
However , DelValle's preheating affidavit states, "I asked Gahndez whether
he had participated in the petition for election that had been made, to which
he answered no, that he had not been aware of it and for such reason he had
2. Tones
207
Tones was hired by Respondent in or about October
1971. Tones and his assistant were engaged primarily in
the manufacture of metal ducts , but sometimes in the
installation of air-conditioning units . Ramirez was Tones'
immediate supervisor , but he also took orders from
Company President Del Valle.
As previously found , prior to the election DelValle told
employee Joseph that he thought Tones was the leader in
the union activities and that he was "going to fire [Tones],
fire the employees and he hopes [Tones ] gets a job for the
rest of the employees." Additionally, DelValle told Tones
that he knew the identity of the Union 's "authors," that he
was going to "suspend" them after the election, and that he
was going to interfere with Tones' obtaining a job
elsewhere.
On February 22, 1974 , when Tones went to the office for
his paycheck , DelValle gave him his check and told Tones
that "he was very sorry, for [Tones] to look for a job at
some other place because [DelValleI didn't have any more
work for [Tones], that [DelValle] didn't want any bad
people in his shop." DelValle did not explain what he
meant by "bad people ." DelValle said that Tones was the
person who brought the Union into the place . DelValle
gave no other reason why Tones was being let go.13
3. Galindez
Before March 1, 1974, employee Galindez was working
in the field on the installation of ducts for air-conditioning
units at the rate of $2.30 an hour. On that date, he was laid
off. On April 2, 1974, he returned to work for Respondent
at his previous rate of pay, but was assigned to shop and
delivery work.
4. Joseph
Joseph first started working for Respondent in 1971. He
resigned about a year later, but returned to work there on
August 20, 1973, at a wage increase . He and his helper, de
la Paz, worked primarily on maintenance and service calls
in the field. Joseph was paid $2.50 an hour. His immediate
supervisor was Company President DelValle.
As previously found, prior to the election DelValle
offered Joseph a raise if he would sign a letter of
withdrawal from the Union, but Joseph in effect refused.
Further, after the election DelValle asked Joseph to enable
him to avoid negotiating with the Union by accepting a
subcontract for all of Respondent's service and mainte-
complained to me that the other employees had put pressure on him." When
this affidavit was drawn to DelValle 's attention, he acknowledged having
asked Galindez whether he had participated in the petition for an election.
Because of these inconsistencies and the witnesses' demeanor , I accept
Galindez' testimony over DelValle 's to the extent they may be inconsistent.
12 No contention is made that Respondent thereby violated the Act.
13 My findings about the termination interview are based on Torres'
testimony . DelValle testified that Torres was suspended "Because we didn't
have a job for him and I told him I am sorry because he was one of the best
operators I had, but I told him I would have to layoff [sic ] him until I could
call him back." In view of Joseph's credited and indirectly corroborative
testimony about DelValle 's suspicion that Torres was the union leader, and
because Torres ' demeanor impressed me more favorably than DelValle's, I
credit Torres.
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nance work and, when Joseph conditioned his acceptance
on DelValle's subcontracting work to the "fired" employ-
ees, solicited Joseph's resignation by offering him a service
letter sufficient for a "diploma" and threatening to find a
way to get rid of him if he did not "cooperate."
About March 13, 1974, DelValle called Joseph into his
office, closed the door, and said, "well, the union is in and
there is a way that I have to find out to get rid of you." He
then gave Joseph two copies of a letter, one of them
bearing DelValle's signature, which alleged certain defi-
ciencies in Joseph's work and threatened him with "action"
if they were not corrected.14 Joseph thereupon offered to
quit. However, this did not satisfy DelValle, who told
Joseph that if he signed the copy which did not bear his
signature, he would give him a letter stating that he had
enough hours of work to entitle him to a "diploma" (supra,
fn. 6), and would see to it that Joseph did not really lose his
job but would perform the same work as before, being paid
"on the side" rather than as a part of Respondent' s regular
payroll. Joseph replied that he would "think about it" and
left the office. About a half hour later, Joseph telephoned
Del Valle and asked the real reason for his proposal.
DelValle replied that he "had to negotiate with the union
and that he doesn't have no money and he cannot afford
it." Joseph again said that he would "think about it." Later,
Joseph told DelValle that he would not sign the letter
because it was untrue.
On April 2, 1974, DelValle approached Joseph and said
that he had a recommendation letter for him and wanted
him to write a resignation letter. Joseph replied that
DelValle would have to talk to the director of his school
(supra, fn. 6). DelValle replied that he did not have to talk
to the director, that he was the boss and could do anything
he felt like doing. Joseph said that he was not going to
accept the letter of recommendation or resign. DelValle
stated that he was asking for Joseph's resignation because
"if one employee stayed in the Company . . . he would still
have to negotiate with the Union." DelValle told Joseph to
get off the property if he did not want to resign. Joseph
asked for a letter explaining the reason for his discharge;
DelValle replied that he was not going to give Joseph
anything and did not have to. The only reason DelValle
then gave for Joseph's discharge was a desire to avoid
negotiations with the Union.15
D. Evidence Bearing on Respondent's Explanations
for the Terminations
1. Gomez, Torres, and Galindez
It is uncontradicted that eight employees were in the unit
on February 14 (the date of the Union's election victory)
14 This letter is reproduced in its entirety infra, sec. 11, D,2.
15 My findings in the preceding two paragraphs are based on Joseph's
testimony. I have previously discredited DelValle' s general denials that he
ever talked to Joseph about the Union (supra, fn. 7). Aside from this
discredited testimony , DelValle neither denied that any of the conversations
in these two paragraphs occurred, nor gave his own version of them.
IS Respondent 's counsel solicited a stipulation that these three were
eliminated because these customers did not pay their bills. Whether or not
counsel for the General Counsel accepted this offer, a matter not wholly
clear in the record , the offer is inconsistent with a position that the
elimination decision was made by the customer rather than Respondent.
17 My finding in this sentence is based on Joseph's undenied and
and two were in the unit on April 2 and on various
subsequent dates including the dates of the hearing
(September 25-27). Respondent's counsel averred in his
opening statement, and DelValle testified, that Gomez,
Tones, and Galindez were laid off on February 19 and 22
and March 1, respectively, because Respondent had no
work for them to do. Counsel for the General Counsel
contends that in order to lend substance to Respondent's
allegedly untruthful claim that these employees were put
and maintained on layoff status for lack of work, the
amount of work performed by Respondent's own employ-
ees was held down by the devices discussed below.
a. Alleged abandonment of service contracts for
antiunion reasons and contracting out of service work
Prior to being terminated, Gomez had spent most of his
time on maintenance and service work. At the beginning of
April, about 5 weeks after Gomez's termination, Respon-
dent had 28 service contracts, of which 3 were eliminated
on April 2.18 Prior to Joseph's April 2 discharge, he, his
helper, and sometimes other mechanics had made service
calls to Cushman & Wakefield and to Pharmaseal.
DelValle testified that thereafter he made an agreement
with a cousin, Rafael Jiminez, who was not on Respon-
dent's payroll, to pay him an undisclosed hourly rate from
company funds for hours he spent making maintenance
calls for Respondent. Between May and September,
Respondent paid him $1,100 for service calls to Cushman
& Wakefield and $800 for service calls to Pharmaseal.17
Jiminez had no license and, when an employee of
Respondent during an earlier period not specified in the
record, had worked as Joseph's helper. Company Supervi-
sor Ramirez testified that, as of September 25, Respondent
had about 15 or 20 "small" maintenance contracts.
DelValle testified that the main purpose of Respondent's
maintenance and service operation was to keep in contact
with clients whose air-conditioning systems had been
installed by Respondent, and to get their "good opinion";
"like a non-profit activity, just like a promotion." He
testified that in January he had two mechanics and two
helpers performing maintenance and service, but helping at
times on construction work; one mechanic and one helper
on the installation of duct work; and two employees in the
shop. He further testified that the Respondent's 28
monthly service contracts as of April 2 paid "$25,
something like that" a month (of which more than 25
percent did not pay on time),18 but that the total amount of
such payments over a year "wouldn't cover at least 20
percent of the payroll of the year . . . . Once the company
has a construction project, once I have plans for designing,
credited testimony about what Jimenez told him. Such testimony was
received without objection from Respondent 's counsel and in the presence
of DelValle. Under these circumstances, and in view of DelValle's
corroborative testimony about Jimenez , I attach full probative weight to
Joseph's testimony in this respect. American Rubber Products Co. v.
N.L.R.B., 214 F.2d 47, 52 (C.A. 7); Local 901, International Brotherhood of
Teamsters v. Compton, 291 F.2d 793, 796-797 (C.A. 1); Golden State Bottling
Co. v. N.L.R.B., 414 U.S. 168, 173-174 ; International Union, United
Automobile, Aerospace and Agricultural Implement Workers (GyrodyneJ v.
N.L.R.B., 459 F.2d 1329, 1335-1339 (C.A.D.C., 1972).
18 Joseph testified without contradiction that Pharmaseal 's service
contract with Respondent paid about $600 a month.
CENTRAL AIR CORP. 209
that is money income that I could use for preserving a
group for keeping and giving that service and keeping in
contact with the customer, but if I don't have any of this
source of money, what is my alternative for keeping in
business?"
Leon Lyon Martin (hereinafter Lyon, see supra, fn. 2),
who had purchased air-conditioning units installed by
Respondent and had a contract with Respondent for their
maintenance at a monthly stipend , testified that while this
contract was still in force Company President DelValle
told him that he "was considering to eliminate the service
contracts or maintenance due that they expected a union to
come in and that [Lyon] should look for somebody else to
give [him ] maintenance." Lyon testified that this conversa-
tion occurred in February or, perhaps, January. Lyon went
on to testify that he related this incident to Joseph, who, in
turn , testified that Lyon mentioned the matter to him on
January 24. Lyon further testified that around April or
May, after he had arranged with another firm for
maintenance , DelValle told him that he had given up the
service contracts due to the Union and union problems.
Lyon testified that DelValle never told him that he did not
want to continue the maintenance service because Lyon
did not pay on time.
DelValle testified that he had severed business relation-
ships with Lyon because he did not pay on time and still
owed Respondent about $80 . DelValle further testified that
he had never talked with Lyon about the union activities of
Joseph or anyone. When asked whether DelValle ever told
Lyon that he was going to end service and maintenance
operations because he had labor union problems, DelValle
testified , "No, I never told such a thing, and also if I
commit a mistake to do it, I would be affecting my relation
with him and also my, let's say, my condition knowing the
internal problems the company had. That is something of
our concern that I consider is a matter of being discussed
in the office and with the people concerned with the office,
just only them , and also Mr . Lyon was one of the worst
clients I had."
As to this conflict in the testimony, I credit Lyon over
DelValle. Lyon, unlike DelValle, has no interest in the
results of this litigation . His demeanor impressed me
favorably, and I do not think that his disputes with
Respondent over the quality of service and the regularity
of payment would induce him to lie under oath.19 His
testimony is indirectly corroborated by DelValle' s threats
to combat the Union through subcontracting , and by his
efforts to make such arrangements with employee Joseph.
Moreover , DelValle's testimonial reliance on his alleged
unwillingness to "affect my relation with" Lyon is difficult
to reconcile with DelValle's alleged anxiety to terminate
that relationship and, furthermore , is a curious explanation
for failing to tell Lyon something which according to
DelValle was not true . Also, the conversations testified to
by Lyon provide some explanation for DelValle's effort to
deprecate , as a mere promotion , the service and mainte-
nance operation which absorbed almost half of Respon-
19 Company Supervisor Ramirez testified that Lyon made a large
number of baseless complaints about the air conditioning, and DelValle
that Lyon complained "viciously" and was a "perfectionist"; but Joseph
testified that he thought that the kind of units installed at Lyon's
establishment were all defective when they left the factory . Lyon testified
dent's work force and contributed at least $1 ,275 a month
gross revenues to a firm allegedly in economic straits.
b. Alleged rescheduling and contracting out of work
on the Pamcor job in Las Piedras
Respondent's contract on the 1973-74 Pamcor job in Las
Piedras called for it to put the air-conditioning units on the
roof, fabricate the ducts, insulate the ducts, and install
them. Respondent put the air-conditioning units in place
on the roof on November 13, 1973. Because of the time
needed by other contractors to complete necessary inter-
vening steps on the project, the project was not ready for
the ducts' installation until June It, 1974.
Before the petition was filed about January 15, 1974,
Torres was engaged in fabricating ducts for this Pamcor
job. After the petition was filed, the tickets for the material
were picked up and everything was called off. Torres was
laid off on February 22. Respondent did not resume its
fabrication of ducts for the Pamcor job until about June
11, when the project was ready for the installation of the
fabricated ducts. Respondent fabricated the duct work at
its own shop with its own employees-Galindez (who
before his 1-month layoff during March had performed
duct installation work) and Vincent Arce, whom DelValle
described as a sheet metal worker . However, Respondent
had the duct insulation work performed by a subcontrac-
tor, and had the installation of the ducts performed by
another subcontractor. This air-conditioning job, which
was in its last stages at the time of the hearing in September
1974, was substantially the same as a job performed by
Respondent in or about 1970 for the same building and
calling for about the same number of air-conditioning
units. In 1970, Respondent subcontracted the duct insula-
tion work, but both the fabrication and the installation of
the ducts were performed by Respondent's own employees.
The 1970 installation job required the services of three or
four of Respondent's employees, including Galindez.
There is no evidence that the 1970 work force was more
skilled than the 1974 work force. Rather, DelValle testified,
"I never had a group that was very skilled. I subcontract all
the things that require skill."
2. Joseph
Respondent's counsel averred in his opening statement
that Joseph was not discharged, but was laid off, and that
he was laid off for the same economic reasons which
allegedly motivated Respondent's action as to the others.
However, Company President DelValle testified that he
fired Joseph, and did so because "since the election comes,
he started motivating some complaints from many custom-
ers who were calling to the office asking me if we had some
other mechanic to send instead of [Joseph ] because they
didn't want to do with him because they don't like the way
he behaves and the way he treats his assistants." 20
that his accountant did not want to write individual checks for as little as
$40, the monthly stipend which he owed Respondent ; but that he did not
believe there were any outstanding debts and "our credit is of the best."
20 So far as the record shows, Joseph had only one assistant, de Is Paz,
during this period.
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent offered into evidence a letter from the PIP21
dated March 15, 1974, threatening to rescind its mainte-
nance contract with Respondent unless it sent a service-
man other than Joseph . The letter alleged that Joseph was
"rude . . . always seems to be annoyed and . . . dislikes
being asked questions or that observations be made to him.
He is rough and hostile ." The letter further asserted that
after the PIP rejected Joseph's suggestion that it use
different size filters because they would make his work
easier, he left without installing them . Further, the letter
asked Respondent to send someone else as soon as possible
to install the filters . DelValle testified that PIP also made
several telephoned complaints about Joseph , whose date
and content he did not specify . DelValle testified that he
did not show this letter to Joseph:
Because there were many complaints and if I was
going to show him all the things that I received, the
complaints , the phone complaints , maybe I was
stimulating him for correcting his faults , but if I was
being specific with a customer, maybe the next time he
would do worse, so that it is a matter of being
diplomatic when you call the attention to an employee.
You cannot tell directly to him that the customer has
been complaining about him, because maybe the next
time you have to send him there . But in this one, it was
definite that they don't want him there anymore.
In addition , Respondent offered into evidence the
following letter from a second customer , Cushman &
Wakefield of Puerto Rico, Inc.:
Pursuant to your request , I am confirming what I
said in the telephone conversation that we had last
Tuesday with your office.
As I had informed you, the equipments that you
repaired on December 18, 1973, were not operating
satisfactorily.
The reason for not having called you before, as you
suggested , was due to the fact that on that date your
mechanic , Mr. Alphens Joseph [sic ], told us that your
company was going to cease its operations because it
was having problems with a labor union.22
Thanking you for the service that you gave us anew
and hoping to have complied with your request, I
remain
Cordially yours,
H. Rodriguez
Superintendent
Prior to Joseph 's discharge, H. Rodriguez , who signed
the foregoing letter from Cushman & Wakefield to
Respondent , had given him permission to use Rodriguez'
name as a reference on Joseph 's application for a job with
Cushman & Wakefield, where Joseph obtained a job after
Respondent discharged him. Cushman & Wakefield's letter
to Respondent is dated April 11, 1974, 9 days after
Joseph's discharge and 3 days after Respondent received
the third amended charge attacking Joseph's termination.
In connection with this letter, DelValle testified:
A. [By Mr. DelValle]: . . . when I was making a
declaration to [Board investigator] Fernandez .. .
when he asked me if I had been talking with any
customer things that was related with the union, I said
to him no, but immediately I recall that I had a call the
day before from a customer who told me that Mr.
Joseph had been commenting with him some problem,
and Mr. Fernandez asked me if I could get a proof or a
letter that would confirm that .. .
Q. [By Mr. Martin] You never mentioned this to
Mr. Joseph then, right?
A. No. I called him the attention and told him that
he should not be making commentaries concerning the
company's affairs with clients. By the way, later -
Q. No. Then you did not mention this particular
matter to him?
A. No, because if I had to send him there, probably
he could be against the customer and probably do
something against him.
DelValle did not specify any other customers who
complained about Joseph. He did however, testify:
Q. [By Mr. Luciano] Did at any time you call Mr.
Alpheus T. Joseph in relation to this [PIP and
Cushman] letters?
A. In relation to the complaints I called . . . him
the attention and I let him know that I wouldn't like
that these things get repeated, otherwise we have to
commit some other decisions about his status in the
company.
Q. And what happened?
A. That he put no interest in my advice and keep
doing the same things and I keep receiving calls,
complaints and so forth.
Q. What did you do?
A. Well, I decided to fire him suspended limited,
suspended him permanently because he was affecting
my business relation.
It is uncontradicted that DelValle did not refer to any
customer complaints when discharging Joseph. As a
rebuttal witness, Joseph testified on direct examination
that DelValle had never given him any warning about any
complaints from customers , or spoken to him about
complaints from any customers , or shown him any letters
from any customers . During his cross-examination, Res-
pondent offered as impeaching evidence a letter given to
Joseph by DelValle under the circumstances summarized
supra, section II, C,4 .23 This letter is dated March 13, 1974,
and reads as follows (Resp . Exh. 3):
The following is to call your attention about your
behavior during the past three weeks . Thus, is my
purpose to list up all the things that I have been
informed and to advice [sic] you to stop this practices,
that in one way or another can affect our good
22 There is no record evidence of any union activity at Respondent's
shop prior to January 1974.
23 DelValle did not testify about the circumstances under which he gave
Joseph this letter.
CENTRAL AIR CORP.
relations with our customers and our order in process-
ing the services call that are received in our office
everyday.
First: You are not calling to the office whenever you
finish a service, letting the office unable to contact you
on any emergency call.
Second: On the services sheets you are not filling the
time space when you start and finish a service.
Third: You have been rejecting to receive orders
from Mr. Ramirez when I'm not at the office knowing
that he is my representative.
Four: Some of our customers has been complaining
about your loud comentaries [sic] about labor relations
and our internal things when you visit them. This kind
of customers are very strict about this concern, because
some of them are the managers of the factories where
you have been committing this faults.
Having you informed about this, I hope you would
not repeat the same, thus we will be forced to take
action.
There is no record evidence that Respondent at any
other time mentioned to Joseph the first three items listed
in this letter . Joseph credibly testified without contradic-
tion that, before he received the letter, nobody had ever
mentioned any alleged failure by Joseph to call into the
office after finishing a service call , or said anything about
any alleged inability by Respondent to reach him for
emergency calls . Joseph credibly testified that he had
called into the office after each service call unless he was
unable to find a working telephone in the area . Joseph
further credibly testified without contradiction that he had
always filled out the time spaces on his service sheets, and
that before he received this letter nobody ever spoke to him
about any alleged failure to fill out these spaces. In
addition, Joseph credibly testified without contradiction by
anyone - including Ramirez, who testified for Respon-
dent - that he ordinarily received service orders from
Ramirez and had never had any problems with Ramirez
about these orders, and that before Joseph received this
letter nobody had ever brought to his attention any alleged
refusal to accept orders from Ramirez . Finally , Joseph
credibly testified without contradiction that although he
had in fact talked to three named customers about labor
relations , it was they and not he who brought the matter
up. In this connection , Joseph testified that during a
service call between the January 15 petition and the
February 14 election, Rodriguez of Cushman & Wakefield
asked him about the Union movement among Respon-
dent's employees.
E. Analysis and Conclusions
1. Alleged independent violations of Section
8(axl)
I find that Respondent violated Section 8(ax1) of the Act
24 1 do not , however , find that Respondent violated Sec . 8(a)(l) by
asking employee Torres whether he knew there was a petition for an
election . I believe that this was merely a rhetorical question which was not
intended to or understood as seeking to elicit any particular answer.
25 Miguel DelValle testified, ". . . where [Gomez] lives , I pay rent of
211
when Pedro R. DelValle, Respondent's president, (1) told
employees Joseph, Gomez, de la Paz, and Rivera that the
shop would be closed if the Union won; (2) told employee
Joseph that if the employees voted for the Union, he was
going to close the Company and subcontract its work; (3)
told employee Joseph that Respondent was going to close
the shop because of the Union activities; (4) told Joseph
that in order to avoid negotiating with the Union,
Respondent was going to fire all the present employees,
move to Levittown, and hire all new employees; (5) told
employees Joseph and Tones that Respondent would
discharge the union leaders and the employees who voted
for the Union; (6) told employees Joseph and Tones that
because of the union activities, DelValle would interfere
with the employees' getting and keeping jobs elsewhere; (7)
offered to give Joseph and his helper a raise if Joseph
would not negotiate with the Union and would take his
name off his union card; and (8) threatened to discharge
Joseph if he failed to cooperate with his plan to avoid
negotiating with the Union by subcontracting all the
maintenance and service work, and offered him a letter of
recommendation if he cooperated to the extent of
resigning . I also find that Respondent violated Section
8(axl) when President DelValle interrogated employee
Joseph . as to whether he knew anything about the Union,
who brought the Union into the Company, and who
brought cards into the Company, and interrogated employ-
ee Galindez about whether he knew anything about the
Union and whether he had signed a union card. I base my
finding that such interrogation violated Section 8(a)(l)
partly on the fact that both employees untruthfully
disclaimed knowledge about the matter; that DelValle also
told three employees, including Joseph, that he planned to
discharge employees for union activity; that Respondent in
fact did discharge some threatened employees (including
Joseph) for union activity; that DelValle's interrogation
sought information useful for accomplishing his an-
nounced discriminatory purpose; and that such interroga-
tion served no apparent legitimate purpose.24
I conclude that Respondent further violated Section
8(a)(l) of the Act when Company Vice President Miguel
DelValle told employee Gomez that he had better start
resigning and getting another job, and that if the Union
won "they" would close the shop. Miguel DelValle was
concededly at this time a supervisor for Respondent, and
his closure threat echoed similar threats made to Gomez
and other employees during this same period by Company
President Pedro R. DelValle, Respondent's principal
officer, who was Miguel's brother and neighbor and
discussed with him Respondent's business, including the
union activity there. Moreover, as found infra, Respondent
subsequently terminated Gomez and other threatened
employees to discourage union activity . It is true that
Miguel DelValle is Gomez' brother-in-law, had arranged
for Gomez' hire by Respondent , and had some personal
financial interest in Gomez' holding on to a job.25
However, these same considerations would likely indicate
that house . If he can't support to that house , you know, counterpoint, if he
doesn't find work . . . . I have to pay his house and me and my wife have to
support the house that he is living in and thirteen brothers that he has.
Anyway, we have to support that family , I have evidence of that ; even his
house, the milk, and if I don't want him working with us , I have to support
(Continued)
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to Gomez that Miguel DelValle knew what he. was talking
about, was serious , and was not bluffing . Cf. Caster Mold &
Machine Co., Inc., 148 NLRB 1614, 1621 (1964); Dixisteel
Buildings, Inc., 186 NLRB 393, 402, enfd. 445 F.2d 1260
(C.A. 8, 1971).
I see nothing in the record to support the complaint
allegation that Respondent threatened its employees with
more onerous work rules and conditions if they engaged in
union activity.26 Hence , I shall recommend that this
portion of the complaint be dismissed.
2. Alleged discrimination against employees, in
violation of Section 8(aX3) and (1)
As found supra, beginning about a week after the Union
filed its January 15 petition and continuing until Joseph's
April 2 termination , Respondent repeatedly evinced an
intention to abort the union movement by depriving
employees of their jobs through the technique, among
others, of contracting out work . While the Union's
representation petition was pending , Respondent told his
customer Lyon that because of the union movement he was
discontinuing service work, and told employee Gomez,
who had been performing such work, that his job might
disappear because of the Union and he had better look for
a job elsewhere . Then, DelValle told Gomez, 5 days after
the Union's unanimous election victory, that he was being
laid off for lack of work . Thereafter, DelValle told Lyon
that Respondent had given up service contracts because of
the Union and union problems . Nor was Gomez recalled
after the discharge of service mechanic Joseph . Instead,
DelValle arranged for the performance of service work by
his cousin Jiminez, whose skills , like those of Gomez, were
those of a helper.27
Likewise,- while the petition was pending , President
DelValle expressed the belief that Torres was the leader in
the union movement , and told employee Joseph that he
was going to fire Torres . DelValle also told Torres himself
that he knew the identity of the Union's "authors" and
planned to suspend them after the election . By adding that
he intended to interfere with Torres' postelection search for
a job, DelValle made it clear to Torres too that he would
be among those suspended for union activity. Three days
after terminating Gomez, Del Valle told Torres, who
DelValle conceded was one of Respondent's best opera-
tors, to look for a job elsewhere because DelValle "didn't
have any more work" for Torres , that DelValle "didn't
want any bad people in his shop." DelValle further
remarked on this occasion that Torres was the person who
brought the Union into the plant . When the Pamcor job
later reached the point where the ducts had to be installed,
Respondent made no effort to recall Torres , an admittedly
able operator who had been fabricating the ducts before
the petition was filed . Instead, Respondent assigned the
fabrication of the ducts to Galindez and Arce, and
subcontracted to another concern installation work indis-
tinguishable from installation work which Respondent had
him anyway . My interest is for him to keep working on the unit all day,
Central Air Conditioning."
" The record fails to show what DelValle meant in referring to "new
company laws" during his March conversation with Joseph.
performed, 4 years previously, with its own employees,
including Galindez.
After terminating Gomez and Torres, DelValle asked
service mechanic Joseph to enable him to avoid negotiating
with the Union by accepting a subcontract for all
Respondent's service and maintenance work. When Joseph
failed to give a reply satisfactory to DelValle , he offered
Joseph a service letter if he would resign , and threatened to
find a way to get rid of him if he did not cooperate. Later,
DelValle offered Joseph a service letter and a job "on the
side" in an unsuccessful effort to induce Joseph to provide
evidence of imaginary deficiencies which would provide a
pretext for his ostensible discharge and thereby help him
avoid having to bargain with the Union. On April 2,
DelValle again solicited Joseph's resignation because "if
one employee stayed in the company ... he would still
have to negotiate with the Union." When Joseph again
refused to resign, DelValle discharged him without any
further explanation.
In consequence of these terminations , all of which
preceded DelValle 's contract negotiations with the Union,
by the time a contract was orally agreed to the unit had
been reduced in size to two employees, as compared to
eight when the election was held some 3 months earlier.
Accordingly, even if the Union had executed the contract,
it could have had little effect on Respondent 's costs. In any
event , the Union never troubled to execute the contract.
While the record fails to show the Union's reasons, the
diminution in the size of the unit , owing partly to the three
discriminatory terminations, was calculated to cause the
Union to lose interest.
I conclude that the foregoing evidence shows, at least
prima facie, that Gomez , Torres , and Joseph were terminat-
ed to discourage union activity, in violation of Section
8(aX3) and (1) of the Act . I further conclude that this prima
facie case is not overcome by the evidence relating to
Respondent's explanations for the terminations.
Thus, I do not believe that serviceman Gomez was put
and maintained on layoff status simply because Respon-
dent's service work fell off and Rivera , the latest service
mechanic whom Gomez had been serving as helper,
resigned . Rather, DelValle's statements to Lyon that union
problems motivated Respondent 's abandonment of service
contracts, and his repeated threats to combat the Union by
contracting out work, lead me to infer that any absence of
service work for Gomez (perhaps with a new mechanic,
although former helper Jiminez managed alone) was
created by Respondent to provide a pretext for taking and
keeping Gomez off the payroll.
Similarly, I do not believe that Torres was taken and
kept off the payroll simply because Respondent had no
shop work . This contention is inconsistent with Respon-
dent's unexplained April action in recalling Galindez,
rather than Torres, to perform shop work , although prior
to being laid off Galindez had been performing installation
work and Torres had been performing mostly shop work.
Moreover, this contention is inconsistent with Respon-
27 Juninez received sums which would have paid Gomez' wages for 27
weeks - that is, from the time of his termination until a few weeks before
the hearing.
CENTRAL AIR CORP.
dent's June 1974 action in subcontracting Pamcor installa-
tion work like that performed in 1970 by Galindez and
having Galindez complete the Pamcor duct fabrication
work begun by Torres, one of Respondent's best operators,
before his layoff. Furthermore, I do not credit DelValle's
explanation for Respondent's action in discontinuing the
Pamcor duct fabrication performed by Torres before his
February layoff, and not resuming such fabrication until
June, when the project was ready for the installation of the
fabricated ducts. DelValle credibly testified that if a
contract calls for payment when the duct work is
fabricated and put on site , Respondent can proceed
immediately , because then it can get its money back at
once . Thereafter, he testified as follows:
Q. [By Mr . Martin] Now , isn't it a fact, Mr.
DelValle, that the fabrication for the Pamcor project in
Las Piedras was begun in February in your shop?
A. It was intended to be, but when we checked the
clause of the contract that says that the duct work has
to be billed when they are installed , we had to stop the
fabrication ; so we couldn't fabricate it.
Q. But you did begin it.
A. We tried, but we had to stop, and also there was
a week of rain there that stopped all the things that all
the contractors were doing there.
Q. But isn't it a fact that Felipe Torres was doing
that fabrication when he was laid off?
A. He started it and I wish he could fabricate the
whole of it, because by that time the sheet metal was
costing 11 - 1/2 cents a pound . I have to finish that
project paying 30 cents a pound for steel.
The veracity of DelValle 's testimony that it was
Respondent 's discovery of the Pamcor payment clause
which caused the 3-month break in duct fabrication is
drawn into question by the consequent inappropriateness
of his further allegation that "We tried, but we had to stop"
the fabrication , by the manifest straw-grasping in his
allegation about a week 's rain to explain a delay of 3
months, and by Respondent's failure to produce the
Pamcor contract (supra fn. 17).
For these reasons, and in view of DelValle 's demeanor, I
do not credit his testimony about the reasons for the delay.
Rather, I find that Respondent abandoned the duct
fabrication in anticipation of Torres' layoff for union
activity , delayed resumption of the fabrication for as long
as it could in order to provide a pretext for keeping him off
the payroll , and-when the fabrication had to be complet-
ed because the project was ready for the ducts to be
hung-contracted out the installation work in order to
provide a pretext for assigning fabrication to Galindez
(who before his layoff had done mostly installation work)
and keeping Torres off the payroll because of his suspected
union leadership . I note that Respondent was using a very
similar technique for keeping Gomez off the payroll;
indeed , a few weeks before the layoffs, Gomez (and also
Torres) had performed duct installation work at another
project, the First Federal Building.
28 Respondent does not appear to contend that Joseph was discharged
for the other deficiencies alleged in this letter. Nor would the record furnish
213
Nor do I believe that Joseph was discharged because of
complaints from customers about his behavior. It is
uncontradicted that DelValle did not mention this matter
to Joseph when discharging him. Further, I credit Joseph's
testimony that aside from DelValle's March 13 letter to
him, which constituted a transparent attempt to create a
paper basis for an ostensible discharge of Joseph,28
DelValle never told him that customers were complaining
about him, and I discredit DelValle's testimony that he
told Joseph about complaints from PIP and Cushman &
Wakefield. I rely on their demeanor; the fact that after
Respondent discharged Joseph, Cushman & Wakefield
hired him with the recommendation of the superintendent
who had signed its postdischarge letter to Respondent
describing its alleged conversation with Joseph about the
Union; the fact that this letter makes no assertion that this
conversation or any other conduct by Joseph was objec-
tionable to Cushman & Wakefield; the strong suggestion in
DelValle's testimony that he did not learn about this
conversation until after Joseph's discharge; and the
implausibility of DelValle's explanation for never showing
Joseph PIP's letter directing DelValle not to send him
again-namely, that DelValle was afraid that knowing it
was PIP which had complained about Joseph might lead
Joseph to be rude again when he returned to PIP.
For the foregoing reasons , I find that the evidence
preponderantly shows that the real reason Respondent
terminated Gomez, Torres, and Joseph was a desire to
discourage union activity, in violation of Section 8(a)(3)
and (1) of the Act.
However, I conclude that counsel for the General
Counsel has not sustained his burden of proof with respect
to Galindez' 1-month layoff, which DelValle testimonially
attributed to lack of work. There is no evidence that during
this period Respondent had any installation work, which
was the kind of work Galindez had been performing before
his layoff. Nor is there evidence that Galindez was more
active in the Union than were other employees. While it is
true that DelValle asked him whether he had signed a
union card (as had all the other employees), DelValle may
well have believed Galindez' untruthful denial. According-
ly, I shall recommend dismissal of the complaint as to
Galindez' layoff.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2 (5) of the Act.
3. Respondent has violated Section 8(a)(1) of the Act
by threatening employees with reprisals for union activity,
by offering employees benefits for rejecting the Union, and
by interrogating employees about union activities in a
manner constituting interference, restraint , or coercion.
4. Respondent has violated Section 8(a)(3) and (1) of
the Act by laying off employees Torres and Gomez, and
discharging employee Joseph, to discourage union activity.
support for such a claim, particularly in view of Joseph's uncontradicted
and credible testimony about these allegations.
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. Such unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
6. Respondent has not, in violation of Section 8(a)(1) of
the Act, threatened its employees with more onerous work
rules and conditions if they engaged in union activity.
7. Respondent's layoff of employee Galindez did not
violate Section 8(a)(3) and (1) of the Act.
THE REMEDY
Having found that Respondent has violated the Act in
certain respects , I shall recommend that Respondent be
required to cease and desist therefrom . Because Respon-
dent's unfair labor practices included the discriminatory
termination of more than a third of its work force -
conduct which goes "to the very heart of the Act"
(N.L.R.B. v. United Mineral and Chemical Corp., 391 F.2d
829, 837-838 (C.A. 2, 1968))-for a specific purpose of
assuring Respondent that nothing of substance would
result from the Union 's certification , Respondent's unlaw-
ful conduct leads me to anticipate that , unless restrained, it
will engage in "continuing and varying efforts to attain the
same end in the future" (N.LR.B. v. Express Publishing
Co., 312 U.S. 426, 437-439 (1941)). Accordingly, I shall
recommend that Respondent be required to cease and
desist from infringing on employee rights in any other
manner . N .L.R.B. v. Southern Transport, Inc., 343 F.2d 558,
560-561 (C.A. 8, 1965).
Company President DelValle and Company Supervisor
Ramirez testified that as of September 1974, Respondent
was, like many other Puerto Rican construction firms, in a
"very critical" economic condition , having acquired no
new projects during 1974. DelValle testified that the only
air-conditioning systems which Respondent installed in
whole or in part after the unlawful terminations consisted
of the Pamcor installation (resumed in June 1974, more
than 2 months after the final discriminatory termination,
and in its last stages during the September 25-27 hearing),
and installations in Carolina and Arecibo , both resumed in
early September and still in progress during the hearing.
DelValle testified that owing to recent sharp increases in
steel and copper prices , these latter contracts were being
performed at a loss . DelValle further testified that
Respondent was attempting to develop a new kind of water
tank , and if this did not succeed, Respondent faced
bankruptcy. Accordingly, even if the discriminatees had
not been unlawfully deprived of work , Respondent might
not have had work for them during periods following their
discriminatory termination . Under these circumstances, I
shall recommend that Respondent be ordered to offer such
employees immediate and full reinstatement to their
former or substantially equivalent positions, without
prejudice to their seniority and other rights and privileges,
and, in the event there is insufficient work for all such
employees , to dismiss , if necessary, all persons who were
newly hired after the discriminatory terminations, and also
discontinue , if necessary, all subcontracts for work which
Respondent's employees are capable of doing , unless
29 See N.L.R.B v. Izzi, 395 F.2d 241, 242-243 (C.A. 1, 1968).
30 In the event no exceptions are filed as provided by Sec 102 .46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
Respondent can affirmatively show that such work would
have been subcontracted even if the discriminatees had not
been terminated 29 If no job is then available for any or all
of the discriminatees , Respondent shall place them on a
preferential list, and thereafter offer them reinstatement as
jobs become available and before other persons are hired
for such jobs.
I shall also recommend that Respondent be required to
make the employees whole for any losses they may have
suffered by reason of the discrimination against them, by
payment to each of them of a sum of money equal to the
amount he normally would have earned as wages from the
date of such discrimination to the date of the offer of
reinstatement or placement on a preferential hiring list, as
the case may be, less his net earnings during said period,
the backpay to be computed on a quarterly basis in the
manner established by the Board in F. W. Woolworth
Company, 90 NLRB 289 (1950), with interest as called for
in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). In
view of my finding that the service work subcontracted to
Rafael Jiminez and the subcontracted installation work on
the Pamcor project would under Respondent's prior
practice have been performed by Respondent's own
employees, and were subcontracted to disguise Respon-
dent's antiumon motive for failing to reinstate its own
employees, for purposes of computing backpay such
subcontracted work shall be considered as work which
would have been performed during the backpay period by
Respondent's own employees but for the discrimination
against them.
In addition, I shall recommend that Respondent be
required to post appropriate notices , not only in English,
but in Spanish, the principal language in Puerto Rico and
the native language of most of the persons involved in this
case.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER 30
Respondent Central Air Corporation, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with reprisals if operations
are organized by Confederacion Obrera Puertorriquena,
hereinafter called the Union, or any other labor organiza-
tion; offering employees benefits if they reject the Union
or any other labor organization; and interrogating its
employees about the activities of the Union or any other
labor organization in a manner constituting interference,
restraint, or coercion.
(b) Laying off or discharging any employee, or otherwise
discriminating against any employee in regard to hire or
tenure of employment, or any term or condition of
employment, to encourage or discourage membership in
the Union or any other labor organization, except to the
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
CENTRAL AIR CORP.
extent such conduct may be permitted by an agreement in
accordance with the proviso to Section 8(aX3) of the
Natignal Labor Relations Act, as amended.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer reinstatement to employees Felipe Torres
Figueroa , Francisco Gomez Lopez, and Alpheus T. Joseph,
without prejudice to their seniority or other rights and
privileges , and make them whole for any loss of pay they
may have suffered by reason of the discrimination against
them , in the manner set forth in the section of this Decision
entitled "The Remedy."
(b) Preserve and, upon request , make available to the
Board or its agents, for examination and copying, all
contracts and subcontracts , all payroll records, social
security payment records, timecards, personnel records
and reports , and all other records necessary or useful to an
analysis of the amount of backpay due under the terms of
this recommended Order.
31 In the event that the Board 's 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
215
(c) Post at its shop in Santurce, Puerto Rico, and at all
projects where its employees are doing work in connection
with the installation of air-conditioning systems, copies in
English and Spanish of the attached notice marked
"Appendix."31 Copies of the notice on forms to be
provided by the Regional Director for Region 24, after
being duly signed by an authorized representative of
Respondent, shall be posted by Respondent immediately
upon receipt thereof, and be maintained for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that the notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 24, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that all other allegations of the
complaint be dismissed, including the allegations of
unlawful discrimination against Dolores Galindez Ramos.
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."