Central Mercedita, Inc.

National Labor Relations Board - Board Decisions

Mar 25, 1960

126 N.L.R.B. 1287 (N.L.R.B. 1960)

CENTRAL MERCEDITA, INC. 1287
or the officer or agent designated to receive such matter before
the close of business of the last day of the time limit, if any, for
such filing or extension of time that may have been granted.
No exceptions were filed by the Respondent Unions and Respondent
Ackerman within the period for timely filing.
[The Board rejected the exceptions.']
1 See Ktekhaejer Corporation v. N.L.R.B., 273 F. 2d 314 (CA. 7).
Central Mercedita , Inc. and Hamilton William Thillet. Case
No. 24-CA-978. March 25, 1960
DECISION AND ORDER
On April 21, 1959, Trial Examiner Thomas S. Wilson issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a brief in support thereof.
The Board, on June 2, 1959, rejected the Respondent's exceptions and
brief on grounds of untimeliness and issued an order adopting the
findings, conclusions, and recommendations of the Trial Examiner
pro forma. Thereafter, the Board filed with the United States Court
of Appeals for the First Circuit a petition for summary entry of a
decree enforcing the Board's aforesaid order. The court on Decem-
ber 31, 1959, denied the Board's petition for summary enforcement on
the ground that in the circumstances of the case the Board erred by
entering an order by default against the Respondent because Respond-
ent's exceptions were only 2 days late.' On January 15, 1960, the court
granted the Board's motion to withdraw its petition and on January
20, 1960, the Board issued an order setting aside its order of June 2,
1959, in which it had adopted the findings, conclusions, and recom-
mendations of the Trial Examiner pro forma, and stating that it
would review the entire record and rule upon the exceptions. Accord-
ingly, the Respondent's exceptions to the Intermediate Report and its
brief in support thereof are hereby accepted and made part of the
record in this proceeding.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act the Board has delegated its powers in connection with
1N.L.RB. v. Central,Mercedlta, Inc., 273 F. 2d 370 (C.A. 1).
126 NLRB No. 158.
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this case to a three-member panel [Chairman Leedom and Members
Bean and Fanning.]
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in this case, including the Intermediate Report and the excep-
tions and brief, and hereby adopts the findings, conclusions, and rec-
ommendations of the Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Central Mercedita, Inc.,
Mercedita, Puerto Rico, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Discouraging membership in an office employee union, or any
other labor organization of its employees, by discharging any of its
employees or otherwise discriminating in regard to their hire or tenure
of employment because of their activities on behalf of such labor
organization.
(b) In any manner interfering with, restraining, or coercing its
employees in the exercise of their right to self-organization, to bargain
collectively through representatives of their own choosing, to form,
join, or assist labor organizations, or to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any or all such activities, except to
the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as
authorized by Section 8 (a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) ^Ofer to Hamilton William Thillet immediate and full rein-
statement to his former or substantially equivalent position without
prejudice to his seniority or other rights and privileges, and make
him whole, in the manner set forth in the section of the Intermediate
Report entitled "The Remedy," for any loss of pay he may have
suffered by reason of the Respondent's discrimination against him.
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records and reports, and
all other records necessary to analyze the amount of backpay due and
the right of reemployment.
CENTRAL MERCEDITA, INC. 1289
(c) Past in the Respondent's plant at Mercedita, Puerto Rico,
copies of the notice attached hereto marked "Appendix." I Copies of
said notice, to be furnished by the Regional Director for the Twenty-
fourth Region, shall, after being duly signed by the Respondent's
representative, be posted by it immediately upon receipt thereof and
maintained by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for the Twenty-fourth Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
2 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in an office employee
union, or in any other labor organization of our employees, by
discharging any of our employees or otherwise discriminating in
regard to their hire or tenure of employment because of their
membership in, or activities on behalf of, such labor organization.
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purposes of collective bargaining or
other mutual aid or protection or to refrain from any or all
such activities, except to the extent that such rights may be
affected by an agreement requiring membership in a labor or-
ganization as a condition of employment, as authorized by Section
8(a) (3) of the Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
WE WILL offer to Hamilton William Thillet immediate and
full reinstatement to his former or substantially equivalent posi-
tion without prejudice to any seniority or other rights and
privileges previously enjoyed by him, and we will make him
whole for any loss of pay suffered as a result of the discrimina-
tion against him.
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become or remain or to refrain from
becoming or remaining members of an office employee union, or any
other labor organization . We will not discriminate in regard to hire
or tenure of employment , or any term or condition of employment,
against any employee because of membership in, or activities on be-
half of, any such labor organization.
CENTRAL MERCEDITA, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced , or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge filed on February 19, 1958, by Hamilton William Thillet, an
individual , the General Counsel of the National Labor Relations Board, herein
called respectively the General Counsel i and the Board , by the Regional Director
for the Twenty -fourth Region (San Juan, Puerto Rico ), issued its complaint against
Central Mercedita , Inc., herein referred to as the Respondent , alleging that the
Respondent had engaged in and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8 ( a) (1) and ( 3) and Section 2(6) and (7)
of the Labor Management Relations Act, 1947, as amended , 61 Stat. 136 , herein
called the Act . Copies of the charge and complaint , together with the notice of
hearing thereon, were duly served upon the Respondent and the individual.
Respondent duly filed its answer admitting certain allegations of the complaint
but denying the commission of any unfair labor practices.
Pursuant to notice , a hearing was held at Ponce, Puerto Rico, on February 2 and 3,
1959 , inclusive , before the duly designated Trial Examiner . All parties appeared at
the hearing , were represented by counsel , and afforded full opportunity to be heard,
to produce , examine and cross-examine witnesses , to introduce evidence material
and pertinent to the issues , and were advised of their right to argue orally upon
the record and to file briefs and proposed findings and conclusions . The parties
waived oral argument and no briefs have been received . Upon the entire record in
the case, and from his observation of the witnesses , the Trial Examiner makes the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Central Mercedita , Inc., is a corporation of the Commonwealth of Puerto Rico
engaged in the manufacture and sale of raw sugar and molasses at Mercedita,
Puerto Rico. During the year 1957 it purchased materials and equipment necessary
for its business operations valued at more than $ 100,000 which were shipped directly
to its plant at Mercedita , Puerto Rico, from points located outside of Puerto Rico.
During the same period it manufactured and sold raw sugar valued at more than
$3,000 ,000 to its corporate affiliate, Puerto Rican American Sugar Refinery, Inc.,
which in turn manufactured refined sugar valued at more than $5,000,000 which
was sold and shipped to customers located outside of Puerto Rico.
The Respondent admits, and the Trial Examiner finds , that the Respondent is and
was at all times material herein engaged in commerce within the meaning of the Act.
IL THE INDIVIDUAL INVOLVED
Hamilton William Thillet is an individual who, for a period of about 10 years
prior to February 18, 1958, was an employee of the Respondent.
1 This term specifically includes the attorney appearing for the General Counsel at the
hearing.
CENTRAL MERCEDITA, INC . 1291
III. THE UNFAIR LABOR PRACTICES
A. The facts
By 1958 William Harrison Thillet had been for the past 10 years an accounting
machine operator in the accounting department of the Respondent which at that
time included approximately 40 employees. In 1958 Thillet was working in the
payroll and tax department under the immediate supervision of Epifanio Torres
who in turn reported to the manager of the department, Carlos Rivera Martinez.
The head cashier of the Respondent was Marcial Hernandez whose brother, Jose
Hernandez, was the production superintendent for the Respondent at its distillery.
For a number of years there had been a social club known as the "15 Year Club"
for those employees who had worked for the Respondent for 15 years. Due to
some considerable dissatisfaction among the employees, the rules of the 15 Year
Club had been changed in recent times so that employees with as little as 1 year's
employment were admitted to a limited membership in the club.
In December 1957 or early January 1958 employee Felix Lugo Borrero got the
idea of forming a social club for all white collar employees of the Respondent,
particularly those in the accounting department. Pursuant to this idea he passed a
paper among the employees of the accounting department in order to sound out
their sentiments regarding the formation of such a club. Thillet was one of those
who signed the paper but from the very beginning he expressed the opinion that the
club should be a union rather than a social organization.
This group held its first meeting one Saturday about January 16, 1958. On the
floor at that opening meeting Thillet championed the idea of forming a union rather
than a social club. The group was divided in sentiment on this matter. After
seven or eight meetings the idea of forming a union, as still championed by Thillet,
was finally adopted by the group.
As a result of a certain conversation he had overheard in the office of Marcial
Hernandez, on the Monday following this first Saturday meeting of the group,
Epifanio Torres, the chief of the payroll and tax section of the accounting depart-
ment, took occasion to warn Thillet "to stop these union activities because the
directors [of the Respondent] knew about it and [Thillet] had been accused of
being the leader of the movement." Torres added that it was not company policy
to accept a union among its white collar employees. Thillet refused to be deterred
from his purpose.
Between January 16 and 18 Francisco Renta, a supervisor, inquired of employee
Felix Lugo Borrero if he were a member of the club. After receiving an affirmative
answer, Renta continued by warning "be careful because it could become a union."
When a fellow employee inquired of Renta as to what was wrong with forming a
union, Felix Lugo Borrero left without hearing Renta's answer.
Sometime in the latter part of January or the first of February Osvaldo de Aragon,
Respondent's general manager, told the Respondent's general counsel, Orlando J.
Antonsanti, that "a club was being formed and that rumors had reached him-no
official communication-that one of the hidden purposes of it was to cover up for
some union activity.. . Although mentioning no names, Aragon was able to
tell Antonsanti that in addition to the employees of the auditing department, certain
timekeepers, and other persons whom the Respondent considered to be either agri-
cultural workers or supervisors had been contacted to join the new organization.
Based upon this information Antonsanti concluded that this union would be
composed of employees from at least three different appropriate units and advised
Aragon to instruct his department heads "to try to point out to these boys if they
are going to form a union they should be careful not to get the units all mixed up
together, not to get the supervisory employees involved with rank and file units
because the Company would object."
Early in February Antonio J. Nazario, Respondent's chief electrical engineer and
a supervisor within the meaning of the Act, asked Thillet, "Is it true that you are
organizing a union among the employees?" When Thillet admitted that it was,
Nazario added, "Do not worry, they cannot fire you for that." Thillet then
inquired as to who had given Nazario that information but Nazario refused to reveal
the source of his information.
Also early in the month of February, Head Cashier Marcial Hernandez asked
employee Rafael Maldonado Collazo if he belonged to the Union and if he had
already signed a union card. When the employee acknowledged that he was
considering doing so, Hernandez warned him not to join because doing so could
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be "prejudicial" to him and also "prejudicial" to his uncle who was about to retire
from the Respondent's employ.2
On February 11 Marcial Hernandez, Respondent's head cashier, called Thillet to
his office where Hernandez informed Thillet that he had heard rumors that a union
was being organized and that Thillet was accused of being the leader of the move-
ment. Thillet admitted the truth of the rumor and stated further that the only thing
that the Respondent could do was to discharge him as he would no yield his
rights to do so. Hernandez then warned that Thillet should be careful as the
Respondent did not like to have its employees orgamze.3
Thillet happened to have an enlargement of a picture of his children in his hand
during this interview. Hernandez complimented Thillet on his handsome children.
During the course of that conversation Thillet made the remark that he would give
his life for his children.
Although Hernandez acknowledged that during the above conversation he did not
even entertain a thought that Thillet was threatening him in any way, that same
afternoon Hernandez called Thillet back to his office and said "Thillet, I have been
thinking over what you told me, was there any second intention?" After Thillet had
denied any ulterior meaning and was pressed again for "the truth," Thillet said,
"Well, somebody told me that you had gone several times to the directors of this
enterprise and had said bad things about me, that you were indisposing me with the
Company." Hernandez denied having done such a thing and added, "Somebody told
you that, can you tell me who, I do not remember having done such a thing, neither
to you nor to anyone else." When Thillet refused to disclose the source of his
information, Hernandez threatened, "If you do not tell me the person who said
such a thing I am going right now to see the directors of the Company, the adminis-
trator, and I will let them know this because this is a threat, I think." 5
The following day Hernandez, according to his own testimony,6 orally repeated
to officers of the Respondent including de Aragon, Felix Juan Serralles, and Raldiris,
his conversation with Thillet. Sometime later that morning Marcial Hernandez
related the events to his brother, Jose, who advised him to report the matter to the
district attorney which Marcial refused to do until Jose added, "Thillet has demon-
strated several times that he is very nervous, you better tell the District Attorney
about this."
So the next day, February 13, Marcial Hernandez went to report to the district
attorney as requested by his brother, Jose, and in the halls of the building happened
2 The threat implicit in this last remark becomes clear when it is realized that the
Respondent customarily made substantial cash payments to employees upon their retire-
ment in accordance with their years of service with the Respondent. In the case of
Maldonado's uncle, the Respondent apparently subsequently made him a cash retirement
gift of $14,000.
3In his examination Marcial Hernandez was asked no questions about this phase of his
conversation with Thillet so that Thillet's testimony stands uncontradicted
However, Hernandez did testify that he had no knowledge of the existence of a union
until the time of the strike some months later so that he did indirectly deny Thillet's
version of the opening phase of the conversation as found above.
But the facts show that Marcial Hernandez did at this time know of the formation of
the club and was able to identify all the founders thereof, except Thillet. In view of the
widespread knowledge of Tbillet's role in transforming this club into a union held by
Respondent's supervisory staff, the Trial Examiner is unable to accept Hernandez' plea
of ignorance especially in view of Hernandez' own version of the subsequent conversation
between the two later that same day. The Trial Examiner found Marcial Hernandez an
unconvincing witness
4'Thillet admitted that he had had a picture of his children in his hand at this meeting
but denied having shown it to Hernandez or having remarked about being willing to die
for his children. Although the Trial Examiner found Hernandez an unconvincing witness,
whereas Thillet was a convincing one, he believes that Hernandez did see the picture and
that there was some conversation between the two about the children as found above
At several places in the record Thillet answered questions according to their precise
technical meaning. On at least one occasion this brought forth what appeared to be
apparently startling contradictions in his testimony but proved, on further cross-
examination, to have been entirely accurate as he interpreted the question.
i Thus, according to Hernandez' own testimony, Thillet's words became threatening to
Hernandez only upon Thillet's refusal to disclose the source of Tbillet's information.
O During his testimony Aragon made no mention of receiving an oral report of the
incident nor any written report until February 13.
CENTRAL MERCEDITA, INC. 1293
to meet the Respondent 's attorney , Tormes, who guided Hernandez to the district
attorney 's office. After relating the story to the district attorney , Hernandez was
asked if he wanted to do something against Thillet "now " to which Hernandez
answered in the negative , that he just "wanted to inform you what happened."
Sometime that same day Marcial Hernandez made a written report of the incident
which arrived on Aragon 's desk on the morning of February 14.
That same morning of February 14 Aragon called Thillet to his office where, in
the presence of Attorney Tormes and Supervisor Rivera Martinez , Aragon stated
that Marcial Hernandez had complained that Thillet had threatened to kill him and
read Hernandez ' report on the matter. Thillet immediately denied having made
any such threat . Aragon then recalled an incident which had happened between
Thillet and an employee named Cepero in 1955 and another incident between Thillet
and Jose Hernandez in August 1957 and stated that because of the fact that Thillet
had threatened three department heads, he was forced to demand Thillet's resigna-
tion. Thillet pointed out that the Respondent had exonerated him in the Cepero
incident in 1955 and that the incident with Jose Hernandez had taken place off
Respondent 's property and related to matters unrelated to the Respondent or its
business and, therefore, should not count . But Aragon insisted upon Thillet's
resignation Thillet then refused to resign stating that the Respondent was asking
for his resignation because of his activities on behalf of the Union. Tormes said
it was all right to form a club but not to form a union . At this point Marcial
Hernandez was sent for and again repeated his accusation that Thillet threatened to
kill him which Thillet again demed . During the discussion Thillet recalled that a
third person had told him that another third person had gone to management with
tales about Thillet's activities on behalf of this union . Attorney Tormes promptly
requested the name of Thillet's informant which Thillet again refused to disclose.
For the remainder of the conference Aragon, Tormes , and Martinez pressured Thillet
to resign with offers of three or four months' severance pay, with compliments upon
his work and his family , with an offer of a good letter of recommendation , and with
a threat that it would do neither Thillet nor his family any good if the Respondent
had to discharge him. When Thillet adamantly refused to resign, Aragon ended
the conference by telling him to go home and consider the whole matter
Later that day Rivera Martinez urged Thillet not to be foolish but to take the
money and resign Martinez also offered that , if Thillet would resign, he, Martinez,
would take Thillet personally to the head offices of the Ferrer Enterprises with
whom he was personally acquainted so as to be sure that Thillet would be given
a job there. Thillet still refused to resign.
That same evening about 5:30 p .m. Tormes stopped Thillet in front of a super-
market as Thillet was on his way home after work and again urged Thillet not to be
foolish but take the offer of $1,000 severance pay 7 and to "pay no attention to the
gossip" of Marcial Hernandez . Tormes also told Thillet that he would get Thillet
a job at the Central Rumina if Thillet would resign. Thillet reiterated his refusal.
Twice again on February 15, Rivera Martinez urged Thillet to take the $1 ,000 and
resign. On the second occasion Rivera Martinez stated that he had called Attorney
Tormes in order to secure another month's severance pay for Thillet if he would
resign. Vega , another supervisor , also urged Thillet to take the money and resign,
but despite all this advice Thillet remained adamant in his refusal.
Finally on the morning of Monday, February 17, Rivera Martinez called Thillet
into his office again and asked for Thillet 's decision which Thillet told him remained
the same: not to resign. Thereupon Rivera Martinez stated that he was sorry but
that he had orders from the management to suspend Thillet if he did not submit
his resignation , that Thillet was therefore discharged , and that his pay for his 17
days' work would be mailed to him. Thus ended Thillet's employment by the
Respondent
Some months thereafter this union of white collar employees went on strike at the
Respondent 's plant. Antonsanti spoke to the president of the Union while the strike
was still on saying that, wh ale the Respondent objected to the present composition,
of the Union due to the inclusion of employees from inappropriate units, the Re-
spondent would be glad to have elections held in appropriate units and would bargain
with the Union if it won any of such elections . Antonsanti finally succeeded in
ending the strike.
'The $1,000 amounted to 5 months ' severance pay, an increase over what had been
offered previously
1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Conclusions
1. The Respondent's defense
The Respondent's contention is the same here as that stated by Aragon at the
conference of February 14, i.e, that Thillet was a dangerous man who had threatened
three department heads and thus the Respondent felt that it had to discharge him
after he had threatened to kill Marcial Hernandez on February 11. The competence
of Thillet as an employee is not in question.
The Respondent based its defense on three separate incidents.
The first of these incidents occurred in 1955 and involved another employee of
the accounting department named Cepero who, according to the undenied testimony,
delighted in teasing Thillet about numerous things including his parentage. On this
particular day in 1955, Thillet requested Cepero to cease teasing him. Cepero
persisted. Thillet walked to the soft drink machine, secured an empty bottle, re-
turned to Cepero's desk, hit Cepero in the face with his fist, smashed the bottle on
Cepero's desk, then stood waiting with the remains of the broken bottle in his hands
as other employees intervened and brought the incident to an end. Cepero, refusing
an apology, demanded the intervention of the Respondent's directors. After a hear-
ing before those officials of the Respondent, Thillet was returned to work without
apologizing, which he offered to do, and without reduction in salary, which had
been suggested at the meeting, but with a reminder that he must learn to take teasing.
The Respondent's records show that on August 1, 1955,8 Thiillet's then $160 per
month salary was increased $15 per month to $175; on July 1, 1956, his salary was
increased $7.50 to $182.50 per month; on July 1, 1957, his salary was again increased
$5 to $187.50; and finally on October 21, 1957, his salary was further increased
$12.50 to $200 per month.
The second incident on which the Respondent relies involved the actions of Thillet
as a member of the board of directors of the Credit Co-operative at Mercedita in
which the Respondent, as such, was not directly involved although many of the
employees and officials of the Respondent were also members of the Credit Co-
operative. At a meeting of the board of directors of the Credit Co-operative in
August 1957, at which Jose Hernandez was presiding 2 days before the annual
meeting of the stockholders, Thillet, as a member of the board, demanded that a
motion before the board be voted on by secret ballot whereupon Jose Hernandez
indicated his displeasure at Thillet by berating him in indecent language and taking
a futile punch at him. Two days thereafter at the annual stockholders' meeting of
the Co-operative, when Thillet objected to permitting the election of three directors
by a vote of acclamation, Jose Hernandez as presiding officer again directed the
same insulting language to Thillet.
Upon the uncontradicted testimony here,9 it is impossible to consider Thillet the
aggressor or anything else but the victim of an unprovoked assault by a person who
happened to be one of the Respondent's officials while engaged in business unrelated
to the Respondent. In view of the $12.50 per month increase in Thillet's salary
granted him within 2 months after this incident, it would appear that the Respondent
at that time considered these incidents to be of no moment.
The third incident on which the Respondent relies is of course, the February 11
conversations between Marcial Hernandez and Thillet which Attorney Tormes sub-
sequently characterized as "gossip."
This whole incident of February 11, 1958, appears to have been manufactured
and blown up beyond recognition for the purpose of providing an excuse to discharge
Thillet. Originally Marcial Hernandez himself did not consider that he had been
threatened. His actions belie his subsequent claim. His report of the incident did
not even reach Aragon's desk for 3 days-hardly the action of a man who considers
himself threatened with death. He reported on February 12 to the district attorney's
office only at the insistence of his brother Jose and then only for the limited purpose
of having the incident "on record." Furthermore, Hernandez' own testimony makes
it clear that the refusal of Thillet to disclose the name of the person who had
informed him that Hernandez was reporting to the board of directors trying to
indispose them towards Thillet 19 was the fact which caused Hernandez originally
'The exact date of the Cepero incident is indefinite in the record.
9 Jose Hernandez was not called as a witness.
10 Respondent did not offer this report in evidence at the hearing.
CENTRAL MERCEDITA, INC. 1295
to threaten to take the matter to the directors H-and not the alleged threat by
Thillet.
Accordingly, the Trial Examiner must agree with Tormes' appraisal of Hernandez'
claim as "gossip." It is quite clear from the manner in which the Respondent was
grasping at straws as old as 1955 that, despite its contention, the Respondent did not
discharge Thillet because of any predisposition towards violence or because of the
alleged threat to Marcial Hernandez. This is so, first, because this record shows
no predisposition to violence on Thillet's part because, at the very most, he was the
aggressor only in the 1955 incident and secondly because Thillet made no threats
against Hernandez and Hernandez knew it.
C. The cause of the discharge of Thillet
If that is so, then why did the Respondent discharge Thillet on February 17, 1958?
At least 3 weeks prior to the discharge information had reached Aragon that this
social club for the while collar employees had been transformed into a union of
white collar employees. Aragon was so well informed about the club as to be able
to tell Attorney Antonsanti what employees were being approached to become mem-
bers of the Union so as to lead Antonsanti to the conclusion that the Union was
composed of employees from at least three inappropriate units and that under such
conditions -the Respondent "would object" to the Union. In fact Antonsanti advised
Aragon to have his department heads notify "the boys" of the Respondent's opposi-
tion to the Union on that score. If the department heads were to notify "the
boys," then it is obvious that the Respondent had to know who "the boys" were.
Even Marcial Hernandez who purported to have no knowledge of the Union until
about the time of the strike, was able to name the employees, except Thillet, identi-
fied with the movement.
While until February I1 there is no direct evidence that Marcial Hernandez knew
that Thillet was the person who had been instrumental in changing the social club
of white collar employees into a union, the uncontradicted evidence proves that
numerous of Thillet's superiors knew of Thillet's efforts in that endeavor and had
warned him against such activity. At least 3 weeks prior to the discharge Respond-
dent's general manager received legal advice that Respondent would oppose the
white collar union as then constituted and was ordered to have his department heads
so advise "the boys" involved therein. In Thillet' s case his immediate superior had
promptly warned Thillet that Respondent did not want its employees organized.12
Respondent, therefore, knew of Thillet's part in this organization of white collar
workers to which Respondent was opposed. Although the dates do not appear to
fit, it is entirely possible that Hernandez's warning to Thillet was one result of
Antonsanti's advice to Aragon.
At least by February 11 Marcial Hernandez knew and accused Thillet of being
the leader of the union movement. It was for this purpose that Hernandez originally
called Thillet to his office on that day. Whether this information came to Hernandez
through a notification to the department heads of the Respondent's opposition to
the Union in accordance with Antonsanti's legal advice, as would seem most
plausible because the agitation for the formation of the Union centered in Hernan-
dez' department, or from independent sources really is immaterial.
Either way it is clear that Marcial Hernandez called Thillet to his office on Febru-
ary 11 in order to force him to abandon his effort on behalf of the Union which the
Respondent opposed. This could well have been Hernandez' interpretation of the
legal advice as handed down to the department heads. It also must have been
clear to Hernandez at the conclusion of that first interview that his efforts in that
direction had ended in dismal failure. Thillet refused to be coerced.
Hernandez' own description at the hearing of the conversation when he recalled
Thillet to the office for the interview in the afternoon indicates quite clearly that
Hernandez was seeking to create some insolence or disobedience on the part of
Thillet whereby he could further the Respondent's opposition to the union idea.
Hence when Thillet refused to name his informant, Hernandez immediately and for
the first time threatened to report Thillet to the board of directors. It is noteworthy
u The denial of Hernandez to Thillet that he was reporting to the directors trying to
"indispose" them toward Thillet was hardly one to give Thillet confidence in the accuracy
of that denial for, according to Hernandez' testimony, he merely said, "I do not remember
having done such a thing, neither to you nor to anybody else"
12 While Respondent's production and maintenance employees had long been organized in
unions, the white collar employees here involved had never been organized.
1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that this threat to report to the directors grew out of the refusal to name the inform-
ant and not because of any threat made by Thillet against Hernandez . Furthermore
Aragon, Tormes, and Martinez on February 14, and thereafter until February 17,
did not treat Thillet as an employee who had threatened to kill one of the Respond-
ent's officials with their increasingly large offers of severance pay, promises of a good
letter of recommendation , and their independent promises to personally secure
Thillet suitable employment with other firms-if only Thillet would resign his em-
ployment with the Respondent . This hardly seems the tactic which the ordinary
employer would use with an employee who had just threatened one of its officials
with death . These are the tactics of an employer knowing full well that the em-
ployee was not guilty of any such violent threats but who nonetheless was deter-
mined to rid itself of the particular employee for some other reason than the
palpably inadequate excuse it chose to use. That underlying reason quite obviously
from the conversation of February 11 was that Hernandez had become convinced
that Thillet would not abandon his activities on behalf of the Union of white collar
workers regardless of whatever coercion the Respondent might bring to bear. The
Trial Examiner must so find.
The Trial Examiner is convinced and, therefore, must find that the Respondent
discharged Hamilton William Thillet on February 17, 1958, because he refused to be
coerced into abandoning his activities on behalf of the Union of white collar em-
ployees in violation of Section 8(a)(1) and ( 3) of the Act.
In addition the Trial Examiner must also find that the Respondent attempted to
coerce its employees in violation of Section 8(a)(1) of the Act by the conversa-
tions of Epifanio Torres, Antonio J. Nazario , and Marcial Hernandez with Thillet
and in the conversation between Marcial Hernandez and employee Rafael Maldon-
ado Collazo and that between Francisco Renta and Felix Lugo Borrero.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States , and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent has engaged in certain unfair labor
practices , it will be recommended that it cease and desist therefrom and that it take
certain affirmative action designed to effectuate the policies of the Act.
It having been found that the Respondent discriminated in regard to the hire and
tenure of employment of Hamilton William Thillet by discharging him on February
17, 1958, the Trial Examiner will recommend that the Respondent offer said Thillet
immediate and full reinstatement to his former or substantially equivalent position
without prejudice to his seniority or other rights and privileges and make him whole
for any loss of pay he may have suffered by reason of said discrimination against
him by payment to him of a sum of money equal to that which he would have earned
as wages from the date of the discrimination against him to the date of the offer of
reinstatement less his net earnings during said period, in accordance with a formula
set forth in F. W. Woolworth Company, 90 NLRB 289.
In the opinion of the Trial Examiner, the unfair labor practices committed by the
Respondent in the instant case are such as to indicate an attitude of opposition to
the purposes of the Act generally. In order, therefore , to make effective the inter-
dependent guarantees of Section 7 of the Act , thereby minimizing industrial strife
which burdens and obstructs commerce , and thus effectuate the policies of the Act,
it will be recommended that the Respondent cease and desist from infringing in any
manner upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. By discharging Hamilton William Thillet on February 17, 1958, thus dis-
criminating in regard to his hire and tenure of employment , because he had en-
gaged in protected union and concerted activities for the purposes of collective
bargaining or other mutual aid or protection and because of his membership and
activities on behalf of the Union , the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(3) and ( 1) of the Act.
MT. CLLMENS METAL PRODUCTS COMPANY 1297
2. By interfering with, restraining , and 'coercing its employees in the exercise of
the rights guaranteed to them in Section 7 of the Act, the Respondent has com-
mitted unfair labor practices within the meaning of Section 8(a) (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Mt. Clemens Metal Products Company and International Union,
United Automobile, Aircraft and Agricultural Implement
Workers of America (UAW) AFL-CIO. Case No. 7-CA-1814.
March 25, 1960
DECISION AND ORDER
On March 26, 1959, Trial Examiner George A. Downing issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
and the General Counsel filed exceptions to the Intermediate Report
and supporting briefs.'
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and briefs, and the entire record
in the case, and hereby adopts the Trial Examiner's findings, conclu-
sions, and recommendations , insofar as they are consistent with this
.Decision and Order.
1. The Trial Examiner found that the Respondent dominated and
interfered with the formation and administration of, and assisted
and contributed financial and other support to, the Shop Committee,
in violation of Section 8(a) (2) of the Act. We agree with the Trial
Examiner to the extent of his finding that Respondent interfered with
the administration of the Shop Committee in violation of Section
8(a) (2) 2
The Trial Examiner found, and we agree, that the 10(b) date gov-
erning this aspect of the case is January 16, 1958. However, while
recognizing that evidence of conduct which occurred prior to the
statutory 6-month period may be utilized solely as background to
i The Respondent has requested oral argument . As the record and briefs adequately
present the issues and the positions of the parties , the request for oral argument is
hereby denied.
2 Respondent 's brief to the Board concedes that the Shop Committee is a labor organiza-
tion within the meaning of the Board 's Decision in Cabot Carbon Company and Cabot
Shops, Inc., 117 NLRB 1633 , set aside 256 F. 2d 281 ( C.A. 5), reversed and remanded
N.L.R.B. v. Cabot Carbon Company and Cabot Shops, Inc., 360 U . S. 203.
126 NLRB No. 154.
554461-60-vol . 126-83