Coca Cola Puerto Rico Bottlers

National Labor Relations Board - Administrative Judge Opinions

Apr 16, 2010

24-CA-011018 (N.L.R.B. Apr. 16, 2010)

JD–23–10
Cayey, PR
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
CC 1 LIMITED PARTNERSHIP D/B/A Cases 24-CA-11018
COCA COLA PUERTO RICO BOTTLERS 24-CA-11032
24-CA-11033
and 24-CA-11034
24-CA-11035
CARLOS RIVERA, an Individual 24-CA-11038
24-CA-11039
and 24-CA-11040
24-CA-11041
CARLOS RIVERA-SANDOVAL, an Individual 24-CA-11042
24-CA-11043
and 24-CA-11044
24-CA-11045
BENJAMIN RODRIGUEZ-RAMOS, an Individual 24-CA-11046
24-CA-11047
and 24-CA-11048
24-CA-11050
EDWIN COTTO-ROQUE, an Individual 24-CA-11056
24-CA-11057
and 24-CA-11058
24-CA-11059
HECTOR SANCHEZ-TORRES, an Individual 24-CA-11060
24-CA-11064
and 24-CA-11065
24-CA-11072
JARIEL RIVERA-ROJAS, an Individual 24-CA-11081
24-CA-11088
and 24-CA-11095
24-CA-11105
HECTOR VAZQUEZ-, ROLÓN an Individual 24-CA-11115
24-CA-11116
and 24-CA-11141
24-CA-11189
JORGE RAMOS-ARROYO, an Individual 24-CA-11193
24-CA-11194
and 24-CA-11089
JOSE RIVERA-ORTIZ, an Individual
and
VIDAL ARGUINZONI, an Individual
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MIGUEL COTTO-COLLAZO, an Individual
and
JAN RIVERA-MULERO, an Individual
and
LUIS BERMUDEZ, an Individual
and
HECTOR RODRIGUEZ, an Individual
and
JUAN RIVERA-DIAZ, an Individual
and
JOSE COLLAZO-FLORES, an Individual
and
GABRIEL ROJAS-CRUZ, an Individual
and
JOSE RIVERA-BARRETO, an Individual
and
JOSUÉ RIVERA-APONTE, an Individual
and
JOSÉ SUAREZ an Individual
and
JORGE OYOLA , an Individual
and
PEDRO COLON-FIGUEROA, an Individual
and
JOSÉ SANCHEZ, an Individual
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and
LUIS OCASIO, an Individual
and
LUIS RIVERA-MORALES, an Individual
and
JOSE RIVERA-MARTINEZ an Individual
and
VIRGINIO CORREA an Individual
and
CARLOS RIVERA-RODRIGUEZ an Individual
and
LUIS MELENDEZ, an Individual
and
DENNES FIGUEROA an Individual
UNION DE TRONQUISTAS DE PUERTO RICO, LOCAL
901, INTERNATIONAL BROTHERHOOD OF TEAMSTERS
and
CARLOS RIVERA, an Individual
and
DENNES FIGUEROA, an Individual
and
MIGUEL COLON, an Individual
and
LUIS BERMÚDEZ, an Individual
and
MIGDALIA MAGRIZ, an Individual Cases 24-CB-2648
24-CB-2673
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and 24-CB-2682
24-CB-2686
SILVIA RIVERA, an Individual 24-CB-2706
24-CB-2707
and 24-CB-2725
24-CB-2726
JESUS BAEZ ORTIZ, 24-CB-2728
24-CB-2729
and
HUMBERTO MIRANDA BARROSO, an Individual
and
ORLANDO HERNANDEZ DOBLE, an Individual
and
RAYMOND REYES RIVERA, an Individual
Ana B.Ramos-Fernandez, Esq., Efrain Rivera-Vega, Esq., Isis Ramos-Melendez, Esq., and
Jose L. Ortiz, Esq.,
of San Juan, PR, for the General Counsel.
Linda A.Backiel, Esq., of San Juan, PR, Barbara Harvey, Esq., of Detroit MI, and Julien
Gonzalez, Esq., of Brooklyn, NY,
for six individual Charging Parties in the CB complaint.1
Miguel A. Maza, Esq.,Yolanda M. Da Silveira-Neves, Esq.,Vanessa Marzan-Henandez, Esq.,
and Agustin Collazo, Esq.,
of San Juan, PR, for the Respondent-Employer.
Antonio F. Santos-Bayron, Esq., and Jose E. Carreras-Rovira, Esq., of San Juan, PR,
for the Respondent-Union.
Jose Budet of Canovanas, PR,
for all of the Charging Parties in the CA complaint and four individual Charging Parties in
the CB complaint.2
DECISION
Statement of the Case
Bruce D. Rosenstein, Administrative Law Judge. This case was tried before me on
December 7 through 17, 2009, and January 11, 2010, in San Juan, Puerto Rico, pursuant to a
Third Consolidated Amended Complaint and Notice of Hearing in the CA cases and a Second
Consolidated Amended Complaint and Notice of Hearing in the CB cases (the complaint) issued

1 Attorneys Backiel and Harvey represent individual charging parties in Cases 24-CB-2706
(Magriz), 24-CB-2707 (Rivera), 24-CB-2725 (Baez), 24-CB-2726 (Miranda), 24-CB-2728
(Hernandez) and 24-CB-2729 (Reyes).
2 Budet is the principal representative for all of the individual charging parties in the CA
cases and for the individual charging parties in Cases 24-CB-2648 (Rivera), 24-CB-2673
(Figueroa), 24-CB-2682 (Colon), and 24-CB-2686 (Bermudez).
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on November 16 and 17, 2009, respectively, by the Regional Director for Region 24 of the
National Labor Relations Board (the Board). The complaint in the CA cases, based upon
original and amended charges filed on various dates in 20083 and 2009 by the 37 captioned
individual Charging Parties (the Charging Parties or referred to by their name), alleges that CC1
Limited Partnership d/b/a Coca Cola Puerto Rico Bottlers (the Respondent Employer or
Employer), has engaged in certain violations of Section 8(a)(1), (3), (4), and (5) of the National
Labor Relations Act (the Act).4 The complaint in the CB cases, based upon original and
amended charges filed on various dates in 2008 and 2009 by the 10 captioned individual
Charging Parties (the Charging Parties or referred to by their name) alleges that Union De
Tronquistas De Puerto Rico, Local 901, International Brotherhood of Teamsters (Respondent
Union or Local 901), has engaged in certain violations of Section 8(b)(1)(A) of the Act.5 The
Respondent Employer and the Respondent Union filed timely answers to the complaint denying
that they had committed any violations of the Act.
Issues
The CA complaint alleges, before the approved settlement agreements resolved certain
issues, that the Respondent Employer violated Section 8(a)(1), (3), (4), and (5) of the Act by
threatening its employees with discharge or other unspecified reprisals if they protested the
discharge of five bargaining unit employees, the denial of an employee’s request to be
represented by the Respondent Union in a disciplinary interview that the employee had
reasonable cause to believe would result in disciplinary action being taken against him, the
distribution of gift certificates to employees who did not engage in and/or abandoned their
participation in an unfair labor practice strike that occurred on October 20-22, the suspension
and discharge of five employees on September 10 and October 10, respectively, because the
employees engaged in protected concerted activities, the discharge of 35 employees and the
suspension of four employees for engaging in the October 20-22 unfair labor practice strike to
protest the five employees who were discharged on October 10, the reinstatement on
November 3 of the four employees who were suspended on October 23, pursuant to a “last
chance” agreement that conditioned their reinstatement on the relinquishment of terms and
conditions of employment that were prohibited or unlawful under the Act. Additionally, the
complaint alleges that the Respondent Employer unilaterally changed its past practice regarding
the duration of disciplinary warnings for purposes of progressive discipline. The CB complaint,
before the approved settlement agreements resolved certain issues, alleges that the
Respondent Union violated Section 8(b)(1)(A) of the Act when it refused to process individual
grievances filed by four of the Charging Parties or processed the grievances in a perfunctory

3 All dates are in 2008 unless otherwise indicated.
4 After the opening of the hearing, I approved an all-party informal Board Settlement
Agreement with a Notice to Employees fully remedying the allegations in paragraphs 9, 16, 23,
and 24 of the CA complaint (ALJ Exh. 2). Accordingly, in my decision, I will not make any
formal findings regarding those allegations.
5 Prior to the opening of the hearing, the Regional Director for Region 24 approved an all-
party informal Board Settlement Agreement with a Notice to Members in Cases 24-CB-2725,
24-CB-2726, 24-CB-2728 and 24-CA-2729 and severed these cases from the CB complaint
(GC Exh. 1 (ccccccc) and (ddddddd). Thus, no formal findings will be made concerning these
allegations. Additionally, after the opening of the hearing, I approved an informal Board
Settlement Agreement with a Notice to Members between the General Counsel and Local 901
over the objections of the Charging Parties that fully remedied the allegations in the CB
complaint regarding Cases 24-CB-2648, 24-CB-2673, 24-CB-2682, and 24-CB-2686 (ALJ Exh.
1). Thus, I will not make any findings concerning these allegations in my decision.
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and/or careless manner because they did not support candidates favored by Local 901 in an
internal union election. Additionally, the CB complaint alleges that seven members of the
Respondent Union were brought up on internal union charges because they were present at
and/or participated in a meeting held on October 12 by employees of the Employer, and/or
because of the union members’ support or participation in the October 20-22 unfair labor
practice strike. Lastly, on March 10, 2009, three of the seven employees were expelled from
union membership, removed from their Shop Steward positions, and each of them was fined the
sum of $10,000.
On the entire record,6 including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, Respondent Employer,7 Respondent
Union and the Charging Parties8 I make the following
Findings of Fact
1. Jurisdiction
The Respondent Employer, a Florida limited partnership, has been engaged in the
bottling of carbonated and non-carbonated beverages at its principal office and place of
business located in Cayey, Puerto Rico. The Employer, in conducting its business operations,
purchased and received at its facility goods and materials valued in excess of $50,000 from
points located outside the Commonwealth of Puerto Rico. The Respondent admits and I find
that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of
the Act and that the Respondent Union is a labor organization within the meaning of Section
2(5) of the Act.
II. Alleged Unfair Labor Practices
A. Background
At all material times since at least 2003, the Respondent Union has been the designated
exclusive collective-bargaining representative of the Unit. This recognition has been embodied
in successive collective-bargaining agreements between the Employer and Local 901, the most
recent of which was executed on February 2, 2009 through January 31, 2014.9

6 The Joint Motion of the Parties to correct the transcript, dated March 25, 2010, is granted
and received in evidence as JT Exh. 25.
7 The Respondent Employer Motions to correct the transcript and Objection to the General
Counsel’s Translation of GC Exh. 17, dated March 25, 2010, are granted and admitted into
evidence as R Exh. 6- 7.
8 The Charging Parties Motion to correct the transcript, dated March 25, 2010, is granted
and admitted into evidence as CP 24-CB-2706 Exh. 5.
9 The predecessor collective-bargaining agreement was in effect from July 1, 2003 through
July 1 (JT Exh. 1). Thereafter the parties, by joint stipulation, agreed to extend the collective-
bargaining agreement until July 31 (JT Exh. 2). Contrary to the position of the Employer, as set
forth in a September 9 letter to Lopez (JT Exh. 11(b)), that the collective-bargaining agreement
was extended in writing to August 31, and thereafter to midnight on September 9, I find no such
agreement existed. In this regard, the Employer did not introduce any written agreement to this
effect and Lopez credibly testified that Local 901 did not agree orally or in writing to extend the
collective-bargaining agreement beyond July 31. Moreover, Lopez stated his disagreement with
the Employer’s position during the parties’ September 9 collective-bargaining session, and
Continued
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German Vazquez holds the position of Secretary-Treasurer and is the principal officer of
Local 901. Jose Adrian Lopez was a Local 901 business representative and principal
representative of the bargaining unit employees at the Employer from 2003 to October 6. He
also served as the chief negotiator, until September 9, during collective-bargaining negotiations
with the Employer for a successor agreement. Carlos Rivera (Charlie-2nd shift), Miguel Colon
(1st shift), Francisco Marrero (Frankie-1st shift), Romian Serrano (3rd shift), and Felix Rivera (3rd
shift) served as Local 901 Shop Stewards until their suspensions on September 10.
During all material times, Carlos Trigueros held the position of Operations Director and
Lourdes Ayala served as Senior Human Resources Director for the Employer. William Acosta,
Armando Troche, Alejandro Barreto, and Wilson de Jesus held the positions of Maintenance
Manager, Control Dispatch Manager, Mechanical Supervisor and Production Supervisor,
respectively. Victor Colon serves as the Operations Process Leader while Maribel Aponte held
the position of inbound and outbound lead.
B. The 8(a)(1) and (3) Allegations
1. The Concerted Work Stoppage
The General Counsel alleges in paragraphs 8 and 10 of the CA complaint that on or
about September 9, certain employees ceased work concertedly to protest the Employer’s
refusal to allow Local 901 representative Lopez to speak to employees in the Employer’s
cafeteria during their non-work time about the ongoing negotiations between the Respondent
Employer and Respondent Union and other matters related to the employees terms and
conditions of employment. Thereafter, the Respondent Employer suspended the five Shop
Stewards on September 10, and terminated their employment on October 10, because they
assisted the Respondent Union and engaged in concerted activities.
Facts
On September 9, the Employer and Local 901 representatives participated in a
collective-bargaining session that commenced around 2 p.m. Representing the Employer were
Attorney Miguel Maza and Ayala. The Respondent Union’s principal spokespersons were
Lopez and Shop Steward Colon. All of the Shop Stewards were excused from work in order to
participate in the collective-bargaining session. During the course of the meeting, Maza
provided Lopez a letter regarding the extension of the parties’ collective-bargaining agreement.
Lopez informed Maza that the contents of the letter were inaccurate (JT Exh. 11(b).
Around 5 p.m., when the negotiation session was nearing its completion, Lopez asked
Ayala whether he could visit the facility around 8:30 p.m. that evening to meet with the third shift
_________________________
thereafter memorialized Respondent Union’s position with an e-mail to the Employer (ALJ Exh.
3). Lastly, one of the Employer’s Attorneys conceded during the hearing that no written
agreement existed that extended the parties’ collective-bargaining agreement beyond July 31.
Accordingly, I find that the parties’ collective-bargaining agreement expired by its terms on July
31. The Respondent Employer and Local 901 then operated under and adhered to the terms
and conditions of the expired agreement, until they executed the present collective-bargaining
agreement on February 2, 2009. NLRB v. Katz, 369 U.S. 736, 743 (1962).
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warehouse employees to discuss the status of on-going collective-bargaining negotiations and
several issues pertinent to those employees.10
Lopez and Shop Steward Colon testified that Ayala stated that there was no problem in
visiting the facility later that evening around 8:30 p.m. to meet with the warehouse employees.
Ayala testified that she did not give Lopez a definitive answer during the bargaining
session regarding whether he could visit the facility later that evening. The bargaining session
concluded around 5:30 p.m., and while Ayala was driving home, she telephoned Lopez to
discuss two issues with him. First, Ayala discussed the status of on-going negotiations and her
concern that the parties appeared deadlocked on a number of significant issues including
temporary employees. Second, Ayala informed Lopez that she was unable to return to the plant
that evening and therefore, he was not authorized to enter the facility. According to Ayala,
Lopez agreed to come to the facility the following day around 12 noon to discuss on-going labor-
management issues with her and address when he could meet with the bargaining unit
employees.
Shortly after Ayala arrived home, she telephoned Trigueros between 7 and 8 p.m. to
give him a brief update on the parties’ negotiation session held earlier that day. Additionally,
Ayala informed Trigueros that Lopez would be visiting the facility the next day because Ayala
was unable to return to the plant that evening, and therefore, she had informed Lopez that he
was not permitted to enter the facility on the evening of September 9 to meet with bargaining
unit employees.

Ayala also placed a telephone call to the security guard on duty at the main gate named
Eric, and informed him that Lopez was not authorized to enter the facility later on the evening of
September 9.
Trigueros, who had just left the plant, testified that he received a telephone call from
Ayala around 7 p.m. in which Ayala informed him about the negotiation session held earlier that
day and told him that she had denied Lopez’s request to enter the facility later that evening to
meet with bargaining unit employees on the third shift. Trigueros then telephoned Victor Colon,
who was working in the plant, and directed him to alert security that Lopez was not authorized to
enter the facility later that evening.11
Around 8:30 p.m. on September 9, Lopez arrived at the facility along with Shop
Stewards Marrero and Felix Rivera, and attempted to enter through the main gate. Lopez
identified himself to the security guard on duty who informed him that he was not authorized to
enter the facility. Lopez requested the guard to check with Ayala who he asserted had
authorized his entry into the plant that evening to meet with bargaining unit employees. Since
the guard ignored his request, Lopez drove his vehicle past the main gate and entered the
facility. He then proceeded to the cafeteria where he intended to meet with the 3rd shift
warehouse employees who were not scheduled to commence work until 9 p.m.

10 The bargaining unit employees work 24/7 in three shifts designated as 1st shift from 5
a.m.-1:30 p.m., 2nd shift from 1 p.m.-9:30 p.m. and 3rd shift from 9 p.m. - 5:30 a.m.
11 Colon confirmed in his testimony that Trigueros telephoned him around 7 p.m. on
September 9, and instructed him to alert security that Lopez was not authorized to enter the
facility that evening.
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Ayala testified that she received a number of telephone calls from the plant shortly after
8:30 p.m., while she was still at home, that Lopez had entered the facility and things were
getting out of hand. Accordingly, Ayala left her residence around 9 p.m. and drove to the facility
arriving around 10 p.m.
Trigueros testified that Ayala telephoned him sometime before 9 p.m. to inform him that
Lopez had entered the facility. He also received a telephone call from one of the security
guards that Lopez had entered the facility. Trigueros then telephoned Victor Colon to inform
him that Lopez had entered the facility and for Colon to find out where he was located.
Colon, accompanied by two supervisors, first went to the cafeteria in an effort to locate
Lopez. Upon arriving at the cafeteria, he saw Lopez talking to approximately 15-20 employees
that he recognized worked in the warehouse. Colon informed Lopez in front of the employees
that he could not stay in the plant and must leave. Lopez replied that he had the approval of
Ayala to meet with the warehouse employees. Colon informed Lopez that he would have the
police remove Lopez from the plant. Lopez uttered a number of profanities at Colon who
replied, “Do not speak to me in that way”. Colon further stated, for the second time, you must
leave the plant. Both Lopez and Colon continued their interchange that was laced with
profanities in front of the employees.12
Colon left the cafeteria and telephoned security. He instructed security to call the police
to come immediately to the plant and to let him know when they arrived.
Lopez informed the employees in the cafeteria, who had witnessed the interchange
between himself and Colon, to accompany him to the warehouse area in order to discuss the
matter.
The group of employees exited the cafeteria and proceeded towards the warehouse
area passing through the production area of the plant. As the group made its way past the
production area, a number of the production employees left their work stations and joined the
group of employees.
Production Supervisor Mercado testified that Shop Steward Serrano approached the
production area where he worked and shouted to employees who were working to come out
and join the group of employees who were making their way toward the warehouse area.
Mercado noted that approximately 17 employees abandoned their work stations, pushed the
emergency stop buttons on their machines, and joined the group of employees.

By the time that Lopez and the group of employees arrived in the conventional area, an
area in front of the warehouse, there were approximately 80-100 employees comprised of
production and warehouse workers.13
Control Dispatch Manager Troche testified that he observed a large group of employees
that arrived in the conventional area accompanied by Shop Stewards Frankie and Charlie. He
saw both Shop Stewards order employees in the distribution center to stop working and

12 Colon testified that he saw Shop Stewards Marrero and Felix Rivera in the group of
employees but neither of them made any statements to him.
13 Lopez, upon arriving in the conventional area, placed a telephone call around 9 p.m. to
Ayala’s office number. Since she did not answer the telephone, Lopez left a voice mail
message that was punctuated with profanity concerning the actions of Victor Colon in ordering
him from the facility.
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specifically heard them state, “stop, stop, stop”. He also observed Shop Stewards Felix Rivera
and Serrano join the group of employees and heard them yell to bargaining unit employees in
the adjoining work areas to stop work. He then witnessed 20-30 employees leave their work
stations and join the large group of employees in the conventional area. According to Troche,
Shop Steward Colon engaged in the same conduct.
Victor Colon returned to the cafeteria after calling security but found that Lopez and the
employees had already left. After talking to Trigueros on the telephone, Colon sought the
assistance of a supervisor and together they began searching the plant in an effort to locate
Lopez and the employees.
Victor Colon ultimately arrived in the conventional area, and went directly to the location
where Lopez was standing. He again directed Lopez to leave the facility. According to Colon,
Lopez along with Shop Stewards Rivera and Marrero got very close to him and Marrero raised
an incident that occurred in 2001. Marrero stated, “It’s good that this is happening to you; that’s
why they shot at you, bastard”.14 Colon panicked upon hearing those words and left the
conventional area to return to his office until the police arrived.
Shop Steward Colon having participated in negotiations earlier in the day returned to the
facility between 8:40 and 8:45 p.m. to attend the employee meeting in the cafeteria. He entered
the facility, after showing his ID card to the guard on duty, and upon arriving in the parking area
observed a police vehicle. He then proceeded to the cafeteria, the site of the scheduled
meeting, but upon arriving observed that neither Lopez nor the employees were there. He
telephoned one of his fellow Shop Stewards and learned that the employees were now in the
conventional area. Accordingly, he proceeded to that area, arriving sometime after 9 p.m. and
found a large number of employees holding a meeting with Lopez. He was informed by co-
workers that Victor Colon had ordered Lopez to leave the facility and that Trigueros was
expected shortly. Shop Steward Colon then observed Victor Colon arrive in the conventional
area accompanied by several police officers. Around that same time, Trigueros entered the
conventional area and Steward Colon informed him that Lopez wanted to talk with him. Shop
Steward Colon observed a discussion that occurred between Lopez and Trigueros and at the
end of their meeting heard Lopez inform the bargaining unit employees that a meeting would
occur the next day and that the employees should return to work. Shop Steward Colon then left
the facility around 9:20 p.m. that evening.
Lopez, in his testimony, confirmed that he met with Trigueros in the conventional area
and informed him that Victor Colon threatened to have the police remove him from the facility.
According to Lopez, Trigueros stated that the policy with Respondent Union had not changed
and what happened was a misunderstanding. He, therefore, agreed to meet with Lopez the
next day to clarify the situation but no meeting occurred. Since Lopez agreed to this
arrangement, he directed the employees to return to their work stations. Trigueros denied, in
his testimony, that he made the statements attributed to him by Lopez and did not agree to a
meeting on the following day.
Ayala arrived at the plant around 10 p.m. and was parking her car when she observed
Lopez walking in the direction of his vehicle. Ayala asked Lopez why he came to the plant that
evening since they agreed to meet tomorrow. Lopez told Ayala that she had given him

14 In 1991, when Colon worked for another employer, he was shot in their parking area
when entering his vehicle. He required extensive surgery and was hospitalized for a lengthy
period while recuperating from his injuries.
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permission to meet with the bargaining unit employees. Ayala told Lopez that no such
agreement had been reached. Lopez continued to tell Ayala that Victor Colon had called the
police to have him removed from the facility.
The next day, September 10, when the five Shop Stewards reported to work on their
respective shifts they were not permitted to enter the plant and were suspended without pay.
By letter dated September 22, the Employer provided the Shop Stewards the reasons for their
suspensions (JT Exh. 3 (b)).15 Thereafter, all of the Shop Stewards were terminated on
October 10 (JT Exh. 4).16
While the five Shop Stewards were terminated, none of the bargaining unit employees
who left their work stations without permission were disciplined by the Employer.

Discussion
The Board has held that Section 7 protects “concerted activities for the purpose of
collective bargaining or other mutual aid or protection.” No union need be involved, any activity
by a single employee may be protected if it seeks to initiate, induce or prepare for group action.
Prill v. NLRB (Meyers Industries), 835 F. 2d 1481 (D.C. Cir. 1987), cert. denied, 487 U.S. 1205
(1988). This protection specifically includes the discharge of employees engaged in a work
stoppage to secure an explanation for the termination of their immediate supervisor and equally
applies to a Supervisor ordering the Respondent Union’s Business Representative to leave the
Employer’s facility during a meeting with bargaining unit employees concerning on-going
collective-bargaining negotiations between the parties. Puerto Rico Food Products Corp., 242
NLRB 899 (1979), Bob Evans Farms, Inc., 325 NLRB 138 (1997). See also, Fortuna
Enterprises, 354 NLRB No. 17 (2009).
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982), the Board announced the following causation test in all cases alleging
violations of Section 8(a)(3) or violations of Section 8(a)(1) turning on employer motivation.
First, the General Counsel must make a prima facie showing sufficient to support the inference
that protected conduct was a “motivating factor” in the employer’s decision. On such a showing,
the burden shifts to the employer to demonstrate that the same action would have taken place
even in the absence of the protected conduct. The United States Supreme Court approved and
adopted the Board’s Wright Line test in NLRB v. Transportation Management Corp., 462 U.S.
393,399-403 (1993). In Manno Electric, 321 NLRB 278 fn 12 (1996), the Board restated the test
as follows. The General Counsel has the burden to persuade that antiunion sentiment was a

15 The letters state in pertinent part that during the course of the negotiations the practice
has been that once negotiations are concluded you do not have any obligation to return to work.
We were surprised that after the negotiations were finished, without permission of the Company,
you returned to the facility and encouraged employees to abandon their work stations. Such
actions violate the parties’ collective-bargaining agreement and are clear violations of the
Employers rules of conduct. Your actions paralyzed the production line during working hours
and caused substantial economic loss to the company.
16 By letter dated October 6, Local 901 notified the Employer that Lopez is no longer a
representative of the Respondent Union and should no longer be allowed to enter your facilities
(JT Exh. 13(b)). Based on Lopez’s actions at the Employer’s facility on September 9, Local 901
terminated his employment.
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substantial or motivating factor in the challenged employer decision. The burden of persuasion
then shifts to the employer to prove its affirmative defense that it would have taken the same
action even if the employee had not engaged in protected activity.
The Employer principally argues that Lopez did not have authority to enter the facility on
September 9, and even if he had such authority, Lopez did not follow the procedures found in
Article 13 of the parties’ collective-bargaining agreement that requires Local 901 representatives
to comply with the rules and procedures established by the Company for visitors.17 Additionally,
it asserts that Lopez ignored instructions of Ayala and security personnel not to enter the facility
on the evening of September 9. The Employer also argues that Local 901 representatives
including the five Shop Stewards violated the No Strike Clause/Work Stoppage provisions found
in Article 5 of the parties’ Agreement.18 The fallacy of this argument is that those provisions
only remain in effect during the duration of the Agreement. As I found above, the parties’
collective-bargaining agreement expired by its terms on July 31, and accordingly the provisions
of Article 5 were not in effect on September 9. Hacienda Resort, 351 NLRB 504 (2007).
The issue herein, is not to determine whether the activities of Lopez violated Section 8
(a)(1) and (3) of the Act, but rather to evaluate the actions of the five Shop Stewards who the
General Counsel alleges were suspended and thereafter terminated for engaging in union and
other protected concerted activities.
The evidence establishes that the warehouse employees, who had gathered in the
cafeteria to meet with Lopez for the purpose of discussing the status of on-going collective-
bargaining negotiations in addition to issues significant to the warehouse, ceased work
concertedly when Victor Colon ordered Lopez to leave the facility. The actions of Colon in
directing Lopez to leave the facility followed by Lopez’s instructions for the employees to follow
him to the warehouse area to discuss the matter falls within the Acts protections.19 Although
other bargaining unit employees left their work stations and joined the group of employees
heading toward the warehouse area, the Employer took no disciplinary action against them.20
Rather, the Employer suspended and thereafter terminated the five Shop Stewards for their
actions on the evening of September 9.

17 Article 12 provides in pertinent part that the authority of the delegates (the five Shop
Stewards were the Respondent Union’s delegates) and substitutes that the Union designates
will have the following responsibilities and duties: Section 3 “The transmission of messages and
information that is originated and/or is authorized by the Local Union or its officials and when
said messages and information are”: (b) If they are not presented in writing, are of a normal
routine and do not involve strikes, slowdowns, or any other interference in the company
business. Article13 provides in pertinent part that representatives of Local 901 will notify the
Company of their intention to visit the work area and will comply with the rules and procedures
established by the Company for visitors. These visits will not interrupt work.
18 Article 5 states in pertinent part that during the duration of the Agreement there will be no
strike or stoppage by Local 901, its members, or any of the employees covered by the
Agreement. Any employee or group of employees that participate in any activity that violates
this Article will be subject to disciplinary actions by the Company that may include discharge.
19 If any of the bargaining unit employees had been disciplined because of their actions, I
would have found that the Employer violated Section 8(a)(1) and (3) of the Act.
20 The record establishes that approximately two hours of production time was lost on the
evening of September 9.
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I have carefully considered the arguments advanced by the Employer as it concerns the
reasons the five Shop Stewards were suspended on September 9, and thereafter terminated on
October 10. I find that the Employer has sustained the disciplinary actions taken against Shop
Stewards Carlos Rivera (Charlie), Francisco Marrero (Frankie), Romain Serrano and Felix
Rivera but not as to Miguel Colon.
The evidence establishes, and was not rebutted by the General Counsel, that Carlos
Rivera, Marrero, Serrano and Felix Rivera encouraged other bargaining unit employees to
abandon their work stations and join the group of employees heading towards the warehouse
area in addition to other employees that worked proximate to the conventional area. Moreover,
these four Shop Stewards did not instruct bargaining unit employees not to leave their work
stations nor did they urge them to return. Additionally, the evidence establishes that Marrero
raised an incident with Victor Colon that was abusive and is a clear violation of the Employer’s
Rules of Conduct that carry the imposition of disciplinary action including termination. Troche
also testified, without contradiction, that Shop Steward Marrero used abusive language when
Troche requested that he keep his voice down. The actions of the four Shop Stewards, as
discussed above, are in clear violation of Articles 1221 and 13 of the parties’ expired collective-
bargaining agreement whose terms and conditions of employment continued in full force and
effect until the parties executed their successor agreement on February 2, 2009. Moreover,
their activities on September 9 also violated the Employer’s Rules of Conduct.

On the other hand, I reject a number of the reasons set forth in the suspension letters of
the Shop Stewards that the Employer relies upon to suspend and thereafter terminate them (JT
Exh. 3(b)). In this regard, Ayala contradicted the statement contained in the letter that states,
“For this reason, we were surprised when on the night of Tuesday, September 9, after the
negotiation meeting finished, you entered without permission to the company”. Rather, she
testified that an employee can come back to the facility after finishing his or her shift if they go
through the main gate. This is consistent with the contents of the September 22 letter that does
not prohibit the Shop Stewards from returning to work after the completion of negotiations.
Additionally, Shop Steward Colon credibly testified that while performing Local 901 duties there
were no restrictions placed on his entrance into the facility outside of working hours. Thus,
there was no reason that the five Shop Stewards could not return to the facility the evening of
September 9, and attend the meeting conducted by Lopez to discuss terms and conditions of
employment with bargaining unit employees. Moreover, I note that Shop Stewards Carlos
Rivera, Serrano and Felix Rivera worked on the 2nd and 3rd shifts respectively, that overlapped
the approximate 8:30 p.m. start time of the scheduled cafeteria meeting with the employees.
Additionally, the record does not confirm the Respondent Employers assertion that the five
Shop Stewards were asked on more than one occasion to abandon the facility and refused
those instructions. Rather, the only evidence presented by the Employer was that Lopez
refused to follow the instructions of Ayala, the security guards, and Victor Colon that he was
either not authorized to enter the facility or that he should leave the plant immediately.
With respect to Shop Steward Miguel Colon, the evidence establishes that he did not
arrive at the facility on September 9 until sometime between 8:30 and 8:45 p.m., and upon
arriving at the cafeteria discovered that the meeting had already ended. He then telephoned a

21 Section 1(d) states in pertinent part: Upon carrying out his duties as such, the delegate
(Shop Steward) will not interrupt the work of the rest of the employees. In fact, the delegate will
not have the authority to declare strikes or any other action that paralyzes or obstructs the work
of the company or workplace (JT Exh.1, pages 21-22).
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fellow Shop Steward and learned that the employees were now located in the conventional
area. Colon proceeded to the conventional area and arrived around 9 p.m. just before
Trigueros appeared and spoke with Lopez. Thus, contrary to the Employer’s suspension letter,
Shop Steward Colon did not enter the facility unlawfully on the evening of September 9, did not
encourage any bargaining unit employees to abandon their work stations nor was he requested
to leave the facility by any Employer representative. Therefore, I reject the testimony proffered
by Supervisor Troche that Shop Steward Colon stated to employees to stop work and note that
Troche did not make that statement in his pre-trial affidavit (GC Exh. 14 (b)). I find the
Respondent’s attempt to link Shop Steward Colon with the conduct of the other four Shop
Stewards in instructing employees to stop work is not supported by the record. Indeed, it is
apparent to me that Shop Steward Colon did not arrive at the conventional area until after the
bargaining unit employees were assembled, and therefore, could not have instructed them to
cease work. Additionally, no evidence was presented that Shop Steward Colon verbally abused
supervisors or that he ever refused to follow supervisory instructions. I conclude that the
Employer conducted a superficial investigation as it concerned Shop Steward Colon, and
manufactured evidence in its desire to lump together the actions of the four other Shop
Stewards with those of Colon. Indeed, the evidence establishes that none of the Shop
Stewards including Colon were ever provided the opportunity to state their position concerning
the events of September 9, but rather were summarily suspended on September 10. An
employer’s failure to permit an employee to defend himself before imposing discipline supports
an inference that the employer’s motive was unlawful. Johnson Freightlines, 323 NLRB 1213,
1222 (1997).
For all of these reasons, I find in agreement with the General Counsel, that Section
8(a)(1) and (3) of the Act was violated when the Employer suspended Shop Steward Colon on
September 10, and thereafter terminated him on October 10. In this regard, Shop Steward
Colon should have been treated similarly to all other bargaining unit employees who concertedly
ceased work on September 9, but were not disciplined by the Employer. Therefore, the actions
of the Employer were pretextual, since he also engaged in protected concerted activities.
I further find, for the reasons set forth above, that the Employer did not violate the Act
when on September 10 it suspended Shop Stewards Carlos Rivera (Charlie), Francisco Marrero
(Frankie), Romain Serrano, and Felix Rivera, and thereafter terminated them on October 10. In
this regard, the Employer lawfully suspended and then terminated them due to their actions that
contravened the parties’ collective-bargaining agreement and the Employer’s Rules of Conduct.
Under those circumstances, the Employer would have taken the same actions even in the
absence of their protected activities.
2. The October 20-22 Strike
The General Counsel alleges in paragraphs 11 through 13 of the CA complaint that
certain employees of the Employer ceased work concertedly and engaged in an unfair labor
practice strike on October 20-22 to protest the Employer’s suspension and subsequent
termination of the five Shop Stewards on September 10, and October 10, respectively. On
October 23, the Employer discharged 34 and suspended 52 employees (four of whom are
alleged in the CA complaint) because they assisted the Respondent Union and engaged in
protected strike activities. The General Counsel also alleged in paragraph 21 of the complaint
that the Employer discharged its employee Dennes Figueroa because of his participation in the
October 20-22 strike.
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Facts
On Septemer 10, the day that the four Shop Stewards were suspended, Lopez received
a telephone call around 6 a.m. from another Local 901 Business Representative that he had
been denied access to the Employer’s facility.
On that same day around 7:15 a.m., Lopez had a breakfast meeting with Local 901
Attorney Jose Carreras and Secretary-Treasurer Vazquez concerning the events of September
9. A second meeting occurred later that morning at Local 901 headquarters with the same
representatives in addition to the five suspended Shop Stewards. The events of September 9
were thoroughly reviewed and decisions were made on how to handle the matter going forward.
It was proposed that three points would be discussed with the bargaining unit employees to
resolve the issues of September 9. They included that the Shop Stewards must immediately be
reinstated, that the Employer would not file any unfair labor practice charges against Local 901
for engaging in the work stoppage, and that the Employer must immediately return to the
negotiation table. The Local 901 representatives decided to convene an assembly of bargaining
unit employees for September 15, to discuss the three points and the impact of events that
occurred on September 9.
On or about September 12, a meeting took place between Attorney Maza and Lopez.
Maza inquired whether the parties could solve the issue of September 9, and proposed that the
Employer would be prepared to permit three Shop Stewards to return to work but not the other
two. Lopez informed Maza that all five Shop Stewards must be reinstated as a condition of
resolving the events of September 9. Maza then suggested that the matter could be resolved if
Local 901 would accept a five cent per hour increase in the 3rd, 4th, and 5th year of the next
collective-bargaining agreement. Lopez informed Maza that such a proposal was insulting and
to inform the Employer’s higher level officials located in Florida that it was rejected. Lopez then
presented Maza with the three points discussed above to resolve the events of September 9.

On September 15, approximately 130-160 bargaining unit employees attended an
assembly at a location off-site that was also attended by Attorney Carreras, Vazquez, and
Lopez. A Motion was made to reconvene the parties collective-bargaining negotiations, that
Lopez would continue to have the Respondent Union’s support, that the Employer would not file
any charges or actions against Local 901 or any of its members, and to authorize a strike to
protest the suspension of the five Shop Stewards. The Motion to strike was approved
unanimously and it was agreed to present the three points to the Employer for their
consideration.
By memorandum dated September 16, Vazquez sent a document to Teamsters
headquarters in Washington, DC, requesting approval for strike benefits assistance (CP-24-CA-
2706 Exh. 1). This request was subsequently approved on October 14.
On October 3, Local 901 held an internal union election to fill the positions of President,
Vice President, and three trustee positions. Three of the employees that were brought up on
internal union charges and expelled from membership alleged in Cases 24-CB-2706 and 2707
were candidates for several of the open positions.
On October 6, Local 901 sent a letter to Ayala that Lopez is no longer a representative of
its organization and he should no longer be allowed to enter the Employers facilities (JT Exh.
13). By a letter of the same date, Local 901 terminated Lopez from his position as a Business
Representative.
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On October 9, pursuant to requests by a number of bargaining unit employees to have
another assembly, a flyer was prepared by the suspended Shop Stewards and distributed to
bargaining unit employees announcing a meeting for October 12, to further discuss the three
points to be presented to the Employer. On that same date, an officer of Local 901 asked Shop
Steward Colon not to divide the membership by voting to authorize a strike at the Employer.
However, in an earlier conversation with one of Local 901’s attorneys, Colon was informed that
the only way to have the Shop Stewards reinstated was to engage in a strike.
On October 10, the five Shop Stewards were terminated by the Employer (JT Exh. 4).
On October 12, the five terminated Shop Stewards held an assembly at a location near
the Cayey facility, and all bargaining unit employees in attendance signed a petition to authorize
a strike at the Employer unless they immediately reinstated the five Shop Stewards, agreed not
to file unfair labor practice charges against Local 901, and reconvened negotiations for a
successor collective-bargaining agreement. A number of employees from other employers
attended the October 12 meeting to support the authorization of a strike due to the termination
of the Shop Stewards.
On October 13, Hector Sanchez testified that he attended a meeting along with other 1st
shift employees in which Trigueros informed the employees in attendance that those who
followed the discharged Shop Stewards would also be terminated.
On October 14, Shop Steward Colon sent Vazquez the list of bargaining unit employees
who signed the petition on October 12, to authorize a strike at the Employer.
On October 19, the five Shop Stewards met at Colon’s home to make final preparations
for the strike that was to commence at the Employer’s facility on October 20. Picket signs were
prepared and the “Broad Order” issued against Local 901 by the United States Court of Appeals
for the First Circuit was discussed at the meeting (JT Exh. 10 (a) and (b)).
Before the strike commenced at the Employer’s facility on the morning of October 20,
the terminated Shop Stewards read the “Broad Order” to the bargaining unit employees on the
picket line to inform them what actions could be taken or not taken during the strike. The strike
continued for three days before ending on October 22. A number of bargaining unit employees
carried picket signs protesting the actions of Victor Colon in ordering Lopez from the facility, and
Steward Colon and others used loud speakers when senior management officials arrived at the
facility to protest the termination of the five Shop Stewards in addition to seeking their
immediate reinstatement, and to reconvene collective-bargaining negotiations between the
parties.
By letter dated October 20 to Local 901, the Employer informed Vazquez that an illegal
strike was on-going at the Cayey facility, and it expected Local 901 within two hours to cease
and desist in the interruption of ingress and egress of its premises and the stoppage of
operations (JT Exh. 18).
By letter of the same date, and in response to the Employer’s communication, Vazquez
made it abundantly clear that the Respondent Union did not send or authorize the presence of
Officers or Union members to take part in the strike (JT Exh. 19).22 The Employer made Xerox

22 See also JT Exh. 21(b), that reiterates that Local 901 did not authorize or participate in
Continued
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copies of the Respondent Union’s letter and had copies distributed by security personnel to the
bargaining unit members who were engaged in the strike on October 20. After reading the
letter, and noting that Local 901 did not authorize the strike, a few employees abandoned the
picket line and returned to work.
Trigueros testified that the Employer’s initial decision was to terminate all of the
bargaining unit employees that participated in the strike. It was ultimately decided, however,
that certain business operational needs dictated which employees who participated in the strike
should be terminated or suspended. Trigueros noted that the Employer had a list of the strikers
based on Human Resources checking who was at work or on approved leave for October 20-
22, and comparing those lists with the employees who did not report for work. Thus, those
employees who were scheduled to work on October 20-22 but did not report were presumed to
be on the picket line and engaged in the strike.
Figueroa was on disability leave from September 24 through November 24 and was
reinstated on November 24. Figueroa testified that he participated in the strike on October 20-
22, at a time that he was not scheduled to work due to his being on approved disability leave.
The General Counsel argues that he was terminated on December 18, due to his participation in
the strike.
Figueroa testified that he was called into Marlyn Cruz’s office, an admitted Employer
agent, along with Victor Colon and his immediate supervisor Wilson de Jesus on December 18,
and was informed by Cruz that he was being terminated based on a December 5 incident that
occurred between himself and another employee and/or because he participated in the October
20-22 strike.
Cruz admitted in her testimony that after a thorough investigation of the December 5
incident between Figueroa and another employee that established he had left his work station
without authorization and had made threatening remarks to a co-worker, she orally terminated
Figueroa on December 18. She admitted that no formal letter was provided to Figueroa that
summarized the reasons for his termination. Cruz testified that she was not aware that
Figueroa had participated in the strike, since he was on approved disability leave, and that is the
reason why the Employer never sent Figueroa a letter dated October 23 similar to those
provided to other employees that were either suspended or terminated for their participation in
the strike. Accordingly, Cruz testified that Figueroa was terminated on December 18 solely
based on the events that took place on December 5. Supervisor de Jesus testified that he
summarized the events of December 5 in a statement that he provided to Human Resources to
support what occurred between Figueroa and the other employee, both of whom were under his
direct supervision (R Exh. 3). He also noted that he attended the December 18 termination
meeting in Cruz’s office, and credibly testified that neither Figueroa nor Cruz mentioned the
word “strike” during their discussion. Moreover, he is positive that Cruz did not inform Figueroa
during the meeting that one of the reasons that he was terminated was due to his participation
in the October 20-22 strike.
Discussion
A strike which is motivated or prolonged, even in part, by an Employer’s unfair labor
practices is an unfair labor practice strike. C-Line Express, 292 NLRB 638 (1989); Tall Pines
Inn, 268 NLRB 1392, 1411 (1984). As long as an unfair labor practice has “anything to do with”
_________________________
the strike.
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causing a strike, it will be considered an unfair labor practice strike. NLRB v. East Optics Corp.,
458 F. 2d 398, 407 (3rd Cir. 1972), cert. denied 419 U.S. 850 (1972). In Golden Stevedoring
Co., 335 NLRB 410 (2001), the Board held that a work stoppage is considered an unfair labor
practice strike if it is motivated at least in part, by the employer’s unfair labor practices. In sum,
the unfair labor practices must have “contributed to the employees’ decision to strike.” RGC
(USA) Mineral Sands, 332 NLRB 1633 (2001).

In Clear Pine Mouldings, 268 NLRB 1044 (1984), enfd. 765 F.2d 148 (9th Cir. 1985),
cert. denied 474 U.S. 1105 (1986), the Board held that strike misconduct is disqualifying if,
under all the circumstances, it reasonably tends to coerce or intimidate other employees. The
Employer argues that 13 employees either engaged in acts of sabotage or violence during the
course of the strike and such misconduct precludes there reinstatement even if the strike is
found to be protected.23
The Employer disputes the General Counsel’s position that the strike was caused by its
unfair labor practices and argues that the strike was at all times called for economic reasons. It
further argues that the strike was called to seek the recognition of another labor organization
known as “Movimiento Solidario Sindical”24, and therefore it was a “minority strike” undertaken
by a minority group of employees. Additionally, it asserts that the strike was in direct violation of
the “Broad Order” issued against Local 901 for previously having violated the Act. Lastly, it
asserts that several of the minority strikers including Shop Steward Colon, requested the
Employer during the course of the strike to sit and bargain with them, rather than the
Respondent Union who was the employees’ exclusive collective-bargaining representative.
Contrary to the Employer’s arguments set forth above, I find that the October 20-22
strike was called to protest the suspension and discharge of the five Shop Stewards, and to
reconvene the parties’ successor collective-bargaining negotiations that had ceased on
September 9.25 Therefore, since October 20, the employees protest was an unfair labor
practice strike.
On September 15, shortly after the Shop Stewards suspensions on September 10,
Senior officials of Local 901 and the five Shop Stewards attended and participated in an
assembly where a majority of the bargaining unit employees unanimously voted to authorize a
strike at the Employer’s facility unless they immediately reinstated the five suspended Shop
Stewards, reconvened collective-bargaining negotiations and agreed not to file unfair labor
practice charges against Local 901 for engaging in the concerted work stoppage on September
9. Indeed, on September 16, Vazquez submitted a request for approval of strike benefit
assistance to Teamster headquarters in Washington DC that was subsequently approved on
October 14. On October 12, at the request of a majority of the bargaining unit employees, the
now terminated Shop Stewards conducted a second assembly where the vote was once again
unanimous to authorize a strike to immediately reinstate the Shop Stewards and to reconvene

23 The Employer argues, as part of its affirmative defense, that bargaining unit employees
Benjamin Rodriquez Ramos, Henry Cotto, Vidal Arquinzoni, Jose Luis Sanchez, Gabriel Rojas,
Luis Rivera Morales, Rafael Oyola, and Hector Rodriguez engaged in violence while bargaining
unit employees Jose Rivera Ortiz, Hector Sanchez, Jan Rivera, Juan Resto, and Pedro Colon
engaged in acts of sabotage.
24 That labor organization filed a representation petition with the Board on October 22 that
was later withdrawn on November 6 (JT Exh. 23 and 24).
25 On October 20-22, approximately 109 bargaining unit employees participated and
supported the strike on each of those days.
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the stalled collective-bargaining negotiations between the parties. The evidence establishes
that Senior Local 901 Officers including Vazquez were not in attendance at this second
assembly. However, Shop Steward Colon credibly testified that on October 14, he sent a copy
of the strike petition signed by a majority of the bargaining unit employees to Vazquez. Thus
the Respondent Union was fully aware, prior to the commencement of the strike on October 20,
of the names of the employees who attended the October 12 assembly and signed the strike
petition.
I also note that on October 13, in a meeting with bargaining unit employees on the 1st
shift, Trigueros told those in attendance that employees who followed the discharged Shop
Stewards would also be terminated.26
On the first day of the strike, a number of bargaining unit employees displayed picket
signs directed at Victor Colon who had ordered Lopez to leave the facility during a meeting in
the Employer’s cafeteria that was called to discuss on-going collective bargaining negotiations
between the parties and issues particular to the 3rd shift warehouse employees. Additionally,
the evidence discloses that Shop Steward Colon and other employees used loud speakers
while on the picket line to inform senior officials of the Employer when they arrived for work that
they were seeking the immediate reinstatement of the five terminated Shop Stewards and the
reconvening of stalled collective-bargaining negotiations between the parties.27
For all of these reasons, and in agreement with the General Counsel, I find that at all
times since October 20 the bargaining unit employees were engaged in an unfair labor practice
strike. Therefore, the Employer’s actions in suspending four and terminating 34 employees for
their participation in the October 20-22 strike, violated Section 8(a)(1) and (3) of the Act. I find,
however, that Figueroa was terminated for legitimate business reasons unrelated to his
participation in the October 20-22 strike. Indeed, the testimony of Supervisor de Jesus and that
of Cruz was detailed and precise in comparison to the vague testimony presented by Figueroa.
Moreover, I fully credit Supervisor’s de Jesus testimony that the word strike was not mentioned
during the discharge meeting nor did Cruz state that one of the reasons for Figueroa’s
termination was based on his participation in the strike.28
With respect to the Employer’s arguments that the strike was for economic reasons, was
in violation of the “Broad Order”, was called by another labor organization for recognition
purposes and /or that Shop Steward Colon sought to bargain with the Employer at a time the
other labor organization was not the exclusive collective-bargaining representative of the unit, I
reject those arguments for the following reasons.
First, the Employer did not submit any evidence that Shop Steward Colon or any other
bargaining unit employee requested the Employer to negotiate with them as the exclusive
collective-bargaining representative. Second, while Lopez admitted in his testimony that he

26 Because of the settlement concerning this allegation found in paragraph 9 of the CA
complaint, no formal finding will be made. However, pursuant to the terms of the settlement
agreement, I am permitted to consider such evidence when litigating this matter and may make
findings of fact and/or conclusions of law.
27 Negotiations were suspended after the September 9 work stoppage and were not
reconvened until in or around November/December 2008.
28 I note that Figueroa admitted in his pre-trial affidavit that after his return to work on
November 24 and before his discharge on December 18, no one in management ever made
any comments to him regarding his participation in the strike.
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observed representatives of the other labor organization in attendance at the October 20 strike,
and that a number of bargaining unit employees signed authorization cards on October 21, the
Employer did not introduce any evidence that established recognition activity occurred prior to
the commencement of the strike or that any authorization cards were distributed or executed by
bargaining unit employees in advance of the strike. Third, the evidence establishes that a
majority of the bargaining unit employees’ authorized the strike in advance of October 20, for
the sole purpose of protesting the suspensions and terminations of the five Shop Stewards and
to reconvene stalled collective-bargaining negotiations between the parties. Fourth, the
Employer did not substantiate by the introduction of any evidence that the October 20 strike was
a “minority strike” called by a minority group of employees. Lastly, the Employer did not
conclusively establish that Local 901 violated the “Broad Order” as the weight of the evidence
confirms that the Respondent Union did not authorize or call the October 20-22 strike.29
3. Alleged Strike Sabotage and Violence 30
While the Employer asserts as part of its affirmative defense that five employees
engaged in sabotage and eight in violence, evidence was only presented that four employees
engaged in acts of sabotage,31 and three engaged in violence.32 Accordingly, those other
employees who were alleged to have engaged in acts of violence or sabotage and participated
in the October 20-22 unfair labor practice strike must be reinstated with full back pay and
allowances.
Facts
Jari Navarro, a control and instrumentation engineer testified that he was working on
October 20 and observed Pedro Colon pushing some buttons on the screen of the 2L labeling
machine he was working on.33 The machine stopped and Colon left his work station to
participate in the strike. Navarro noted that Colon was not the last person to leave the
production area before joining the strike but he was the last person he observed to leave the
area where the labeling machine is located. After a large number of employees in the
production area joined the strike, the Employer gave instructions that some of the supervisors
should check the machines in their work areas to see if they were ready for the resumption of
production. Navarro, and another supervisor, checked a number of machines including the 2L
labeling machine that Colon had been working on before he left to join the strike. Navarro
testified that while the labeling machine was not broken, he could not restart it due to the
parameters having been altered. In order to restart the machine, which took approximately 45
minutes, he had to input the parameters from a list of another working machine. According to

29 The Respondent Union’s Board of Directors must authorize a strike vote that is taken and
recommended by the membership. In this case, no such authorization was approved by the
Board of Directors.
30 The Respondent Employer’s Motion, filed on March 25, 2010, to amend its affirmative
defenses included in its answer by withdrawing numbers 58 and 59, and to withdraw the names
of Jose Rivera Ortiz and Hector Sanchez from affirmative defenses number 60-62 is denied. In
this regard, such a post-hearing Motion is discretionary with the judge pursuant to the Board’s
Rules and Regulations, Section 102.23. Since the undersigned made no provisions for such an
amendment, and particularly noting that the allegations concerning sabotage regarding these
named employees were fully litigated during the hearing, I find that the Motion must be denied.
31 The employees are Hector Sanchez, Pedro Colon, Juan Resto, and Jan Rivera.
32 The employees are Edwin (no last name), Vidal Arguinzoni, and Jose Rivera Ortiz.
33 Navarro prepared a report of the events that occurred on October 20 (R Exh. 1).
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Navarro, the only way to change the parameters on the labeling machine was with the assigned
password that he testified was in the possession of the machine operator. Navarro noted that if
the machine is stopped, it does not change the parameters. Rather, the parameters can be
changed only if they are altered, and you have to push more than one button on the machine to
do so.
Supervisor Barreto testified that the password for the 2 L labeling machines is “1379”
and has not changed since 1993. He asserts that once the password is entered, anyone can
change the parameters of the machine or make adjustments. Barreto is certain that the
password for the 2 L labeling machine is possessed by the specific operators of the machine,
the mechanics, and the maintenance supervisors. However, he admitted that no records are
kept by the Employer who has passwords for the labeling machines.
Pedro Colon acknowledged that he left his work station to participate in the October 20
strike, but asserts that the only button he pushed on the operators screen was to lower the
speed of the 2L labeling machine. Colon testified that he has been operating similar machines
for the last 16 years and the 2L labeling machine for the last five years. While Colon admitted
that you need a password to change or alter the parameters, he testified that he has never been
provided a password for the 2L labeling machine during the five years he has operated it. He
opined that while the technicians and mechanics have assigned passwords he is not sure
whether the supervisors also have passwords for the 2L labeling machines. He asserts that at
no time, before he left his work station, did he ever alter or change the parameters on the
labeling machine.
Bargaining Unit Employee Luis Melendez has operated the 2L labeling machine on the
2nd shift for the last six years. He testified that without an assigned password, which the 2L
labeling machine operator is not provided, the parameters on the machine cannot be altered or
changed. Melendez noted that the numbers “1379” starts and operates the 2L labeling machine
but the parameters can’t be changed using that password. He further asserts that there is a
button on the screen which permits the machine operator to increase or decrease the speed of
the machine but without the password, the parameters cannot be changed.
Discussion
The weight of the testimony convinces me that the parameters of the 2L labeling
machine cannot be changed unless someone has the specific password. Although Navarro and
Barreto testified that Pedro Colon, as the operator of the 2L labeling machine must have had the
password, the testimony of Colon and Melendez who have each operated the machine for at
least five years convinces me otherwise. Therefore, since the Employer does not keep records
of who has assigned passwords for the 2L labeling machine, it has not conclusively established
that Pedro Colon had the password. Since the Employer did not establish that Colon had the
password or was the person who changed or altered the parameters of the 2L labeling machine,
the allegations that he engaged in acts of sabotage cannot be sustained. Additionally, I find
Melendez’s testimony that the numbers “1379” are solely used to start and operate the machine
but can’t be used to alter or change the parameters more plausible then testimony from the
Respondent’s witnesses concerning this issue. Thus, Pedro Colon must be treated similarly to
the other bargaining unit employees who participated in the October 20-22 unfair labor practice
strike and were discharged for their actions.
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Facts
The Employer further asserts that bargaining unit employees Hector Sanchez, Juan
Resto, and Jan Rivera engaged in acts of sabotage on their assigned machines when they left
their work stations unattended and joined the strike.
Sanchez admitted in his testimony that he stopped his assigned mixing machine before
he left the work area to participate in the October 20-22 strike. He asserts that if the mixing
machine is stopped no damage can occur to it, however, acknowledged that if the product
remains in the machine for long periods of time while shut down it can spoil. Sanchez testified
that other shift operators have access to the password for the mixing machine he works on in
addition maintenance personnel and his supervisor.
Supervisor Barreto testified that after observing the strike for a short period, he was
asked along with other supervisors to get the machines in operational order so that production
could resume. In undertaking his troubleshooting responsibilities, he observed that the machine
Juan Resto operated before he left to participate in the strike had the plastic removed so that
the product could not be packaged properly. He noted that while the machine was not broken,
the plastic needed to be reinserted and it took approximately 25 minutes to get the machine in
operational order.
Barreto also performed maintenance on a conveyor machine that was not working
properly because the photo cell was out of place. He noted that Jan Rivera operated the
conveyor machine before he left his work area to participate in the strike. The conveyor
machine took about 20-25 minutes to repair before it returned to full operational capability.34
Discussion
Although the Employer has established that Sanchez, Resto, and Rivera were the
operators of the three machines that had been taken out of production before they left to
participate in the strike, no evidence was presented that these employees caused the problems
that shut down those machines. In the absence of conclusive proof that these three employees
were responsible for the problems to the machines in question, I am unable to find that they
engaged in acts of sabotage on October 20. The Employer’s burden, herein, of establishing an
“honest belief” that an employee engaged in misconduct requires more than the mere assertion
that it had such a belief. There must be some specificity, linking particular employees to
particular allegations of misconduct which I find is missing in the subject case. Beaird
Industries, Inc., 311 NLRB 768, 769-770 (1993). Therefore, these three individuals must be
treated to similarly situated employees who participated in the unfair labor practice strike and
were terminated for their actions.35

34 Barreto prepared a report of the events that occurred on October 20 (R Exh. 2).
35 My review of the Employer’s official Production Line Control records for October 20, the
first day of the strike, does not show any of the alleged sabotage incidents having occurred
including the problems described with the Filler, Labeling, or Kister machines (GC Exh. 17).
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Facts
As it concerns allegations of violence during the strike that were engaged in by
bargaining unit employees, the Employer proffered several witnesses to support these
assertions.
Miribel Aponte, an inbound and outbound lead, testified that on the evening of October
20 she went to Wal-mart accompanied by security personnel to purchase a number of personal
articles in the event it was necessary to spend a number of nights at the facility during the strike.
Upon leaving the facility, Aponte observed a white Nissan Altima that followed the van she was
riding in. Once the van reached Wal-mart, the white Nissan Altima stopped. Aponte,
accompanied by the security personnel, entered Wal-Mart to make her purchases and upon
exiting the store observed that the white Nissan Altima was no longer parked adjacent to the
store. It was later determined that the white Nissan Altima belonged to employee Vidal
Arguinzoni.
Leonardo Rivera, a handyman and member of the bargaining unit, testified that he did
not participate in the strike but requested on October 20 to leave work after his shift ended in
order to pick up his children. Rivera testified, as he was riding his bicycle in the street just past
the Consolidated Cigar factory in Cayey, that he observed a white Nissan Altima following him.
As the vehicle got closer to him, he observed that the driver of the automobile was Arguinzoni
and sitting in the passenger seat was Jose Rivera Ortiz. When the vehicle came about two feet
from Rivera, both Arguinzoni and Ortiz yelled at him in an aggressive manner and Rivera
responded in kind. Rivera admitted that no damage occurred to his bicycle and he was not
physically harmed by the occupants in the vehicle. Rivera filed a police report regarding the
incident but was informed by the officers that it would not be processed as all parties responded
to each other in an aggressive manner.
Discussion
Based on the above recitation, I cannot conclude that either Arguinzoni or Ortiz engaged
in acts of violence as alleged by the Employer. In this regard, Aponte was unable to observe
who was driving the white Nissan Altima and could not confirm if Arguinzoni was in the vehicle
that followed the van to Wal-mart. Likewise, Rivera did not establish that any violence occurred
during the confrontation between himself and Arguinzoni/Ortiz. Rather, the Police refused to
process the incident report due to all parties engaging in aggressive behavior, and no evidence
of physical harm or damage was reported.
Under these circumstances, I find that Arguinzoni and Ortiz did not engage in acts of
violence during the strike. Therefore, they must be treated similarly to all bargaining unit
employees that were discharged for their participation in the unfair labor practice strike.
Facts
Supervisor Troche testified that on October 21, when four trucks were loaded with
product and were leaving the facility, he observed a number of employees throwing bottles at
the vehicles and sitting in front of the trucks. He also observed an individual that he knows as
“Edwin” hitting the trucks with his hands as they exited the plant.
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Discussion
Based on the above evidence, it is not possible to subscribe such conduct to any
specific bargaining unit employee alleged by the Employer to have committed violence during
the strike particularly which employees threw bottles at vehicles or sat in front of the trucks.
Indeed, none of the employees alleged by the Employer as part of its affirmative defense No. 58
to have engaged in acts of violence is named “Edwin”, and the Employer has not presented any
conclusive evidence as to who specifically was involved in throwing objects or bottles at the
trucks as they exited the facility on October 21. In this regard, Troche did not address the
incident of “Edwin” hitting the trucks with his hands as they exited the plant in his pre-trial
affidavit (GC Exh.14(b)), and in his testimony he could not conclusively establish the employee’s
full and complete name. Moreover, no evidence was presented that slapping the trucks caused
any specific damage or impeded the exit of the trucks from the facility.
Under these circumstances, I find that the Employer has not carried its burden in
establishing that acts of violence were committed by named employees in the bargaining unit
when trucks exited the facility on October 21. MP Industries, Inc. 227 NLRB 1709 (1977)
(threats and name calling, unaccompanied by any physical acts or gestures that would provide
added emphasis or meaning to the words are not sufficient to deny reinstatement after a strike).
C. The 8(a)(1) and (4) Allegations
The General Counsel alleges in paragraphs 10, 11, 14, and 15 of the CA complaint that
on or about October 30, the Respondent Employer coerced four employees that were
suspended on October 23 for participating in the October 20-22 strike, into signing “last chance”
agreements conditioning their reinstatement from their suspensions on the relinquishment of
their right to file unfair labor practice charges or give testimony to the Board. The General
Counsel asserts that such conduct is prohibited and the discharge of the four employees’ is
unlawful under the Act.36
Facts
The evidence establishes that 86 bargaining unit employees who participated in the
October 20-22 strike were either terminated or suspended on October 23 for their conduct.37

36 During the course of the hearing, the General Counsel sought to amend the CA complaint
to include 48 additional employees who executed the “last chance” agreement on October 30. I
denied the General Counsel’s Motion for two reasons. First, the CA complaint allegations
regarding the “last chance” agreement only alleged violations concerning four employees who
after executing their respective agreement were subsequently terminated allegedly because
they violated the terms and conditions of the agreement. Notably absent from the complaint
was any reference to the 48 additional employees who also executed the “last chance”
agreement. Second, unlike the four employees alleged in the complaint that executed the “last
chance” agreement and were subsequently terminated, the 48 employees were reinstated on
November 3, and no further disciplinary action was taken against them. Thus, any violation
found regarding the Employer’s coercion of the 48 employees in executing the “last chance”
agreement would be cumulative.
37 Suspension or discharge letters were sent to 86 employees for their participation in the
strike including Luis Ocasio who was serving a fifteen day suspension from October 16 until
October 30 (JT Exh. 5 and 6). The one remaining employee, Dennes Figueroa, is alleged in
paragraph 21 of the CA complaint to have been terminated on December 18 for his participation
Continued
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After the strike ended on October 22, and suspension or termination letters were sent to
the impacted employees, the Respondent Union sought reconsideration on behalf of those
employees who were suspended, and after extensive discussions with the Employer “last
chance” agreements were negotiated (JT Exh. 7). On October 30, a total of 52 employees
including the four employees alleged in the CA complaint, executed a “last chance” agreement
that provided for their reinstatement on November 3, subject to immediate termination for any
violation of its terms.
The comprehensive agreement contains standard release language based on the acts
committed but according to the General Counsel contains a number of provisions that infringe
on Section 7 rights under the Act. For example, the “last chance” agreement provides for
employees to relinquish rights for reasons other then what the original suspension was based
upon,38 and waiving rights to testify or give evidence in state/ federal courts and administrative
agencies.39
Discussion
Generally, the Board has held that an employer violates the Act when it insists that
Employees’ waive a statutory right to file charges with the Board. Athey Products Corp., 303
NLRB 92, 96 (1991). On the other hand, an employer does not violate the Act when, in
exchange for sufficient consideration the employer insists that a discriminatee sign a release
waiving claims arising prior to the date of the execution of the release. First National
Supermarket, 302 NLRB 727 (1991). However, there is no legitimate interest in limiting an
employee’s future rights with respect to matters arising after the execution of the release.

The terms of the “last chance” agreement, specifically included in Paragraph 4(b) and 7
are overly broad and are unlawful under the Act. For example, the Board is an administrative
agency of the United States Government (federal forum) and Paragraph 7 precludes the
suspended employees’ from filing future actions in that forum that would include unfair labor
practice charges or giving testimony to the Board. Additionally, the General Counsel shortly
after the CA and CB complaints were issued apprised both the Respondent Employer and the
Respondent Union that there was a strong probability that it would seek Section 10(j) relief in a
United States District Court. Based on the language contained in Paragraph 7 of the “last
chance” agreement, the suspended employees would be prohibited from providing evidence or
giving testimony in support of that action. I further find that the language in the “last chance”
agreement found in paragraph 4(b) likewise restricts employees in the exercise of Section 7
rights. For example, the four employees would be prohibited from engaging in lawful strike
_________________________
in the October 20-22 strike. As it concerns Figueroa, the Employer did not send him a letter
detailing the reasons for his termination.
38 Paragraph 4(b) states in pertinent part that: “The employee will agree not to file any action
and/or grievance against the Company or the Union due to the facts upon which his suspension
was based, including but not limited to any violation to the right to strike, to organize, to
associate, or any other disposition related with Section 301 of the Labor Management Relations
Act or any local laws and/or for lack of adequate representation by the union, back pay and/or
noncompliance with the collective bargaining agreement”.
39 Paragraph 7 states that: “The employee agrees not to testify, to provide evidence against
the Company or the Union in any Court of law, administrative agency or hearing, or in any local
or federal forum, except when the employee is subpoenaed or ordered to do so by a Court of
law or competent authority”.
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action against the Employer or filing actions against the Employer under the parties’ collective-
bargaining agreement. Ishikawa Gasket America, Inc., 337 NLRB 175 (2001) (separation
agreement found overly broad and unlawful because it forced employee to prospectively waive
her Sec. 7 rights).
Based on the forgoing, and in agreement with the General Counsel, I find that on
October 30 the Respondent Employer coerced employees Luis Bermudez, Jose Rivera-Barreto,
Virgino Correa, and Luis Melendez into signing a “last chance” agreement in violation of Section
8(a)(1) of the Act that conditioned their reinstatement from their suspension on the
relinquishment of their right to file unfair labor practice charges or give testimony to the Board.40
Accordingly, all four employees must be reinstated with full back pay and allowances based on
the Employers actions in violating Section 8(a)(1) and (4) of the Act, since the execution of the
“last chance” agreement on October 30 preceded the employee’s subsequent terminations for
allegedly violating the terms of the agreement.41
D. The 8(b)(1)(A) Allegations in the CB complaint
The General Counsel alleges in paragraph 15 of the complaint that the Respondent
Union threatened a number of members with discipline by issuing internal union charges against
them because they were present at and/or participated in a meeting held on October 12, with
employees of the Employer, and/or because of the union members’ support or participation in
the October 20-22 strike. Thereafter, on March 10, 2009, the Respondent Union expelled three
of these individuals from union membership and imposed upon each of them a fine of $10,000.
Facts
At all material times Migdalia Magriz and Maritza Quiara were employed by Crowley
Liner Services de Puerto Rico and were Local 901 Shop Stewards in that facility. Likewise,
Silvia Rivera was a Local 901 Shop Steward at her employer, Pepsi Cola, Mfg.
On October 3, an internal union election was held to fill a number of Local 901 positions
including President, Vice President and Trustee. Magriz, Quiara, and Rivera were members of
a partial slate of candidates for the “Teamsters Making a Difference” in the internal union
election. In the Respondent Employer’s bargaining unit, the “Teamsters Making a Difference”
slate obtained 108 votes in comparison to Local 901’s supported slate receiving six votes.
The results of the internal union election, based on a total vote of all employers in which
Local 901 is the exclusive collective-bargaining representative, showed that the slate of
candidates supported by Local 901 was victorious. Objections to the conduct of the election

40 The Employer terminated the four employees on November 6, November 13, December
10, and January 9, 2009 respectively, allegedly because they violated the terms and conditions
of the “last chance” agreement. Victor Colon testified that Bermudez abandoned his work area
and was terminated for violating the terms of the “last chance” agreement and the Employer’s
Rules of Conduct. The Employer did not introduce any evidence as to the specific reasons
Barreto, Correa, or Melendez violated the terms of the “last chance” agreement and were
subsequently terminated.
41 I further find that the Respondent Employer violated Section 8(a)(1) and (3) of the Act
because the discharges were directly related to the four employees participation in the unfair
labor practice strike, and but for that action, the employees would not have executed the “last
chance” agreement. Five Cap, Inc. 331 NLRB 1165,1169 (2000).
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were filed by Magriz, Quiara, and Rivera with the United States Department of Labor and a
Complaint is presently pending in the United States District Court of Puerto Rico contesting the
internal union election (GC Exh. 28).
On October 12, Magriz and Rivera along with employees from other employers attended
an assembly of Local 901 members in which a second strike vote against the Respondent
Employer was unanimously approved. Quiara was hospitalized on October 12, and did not
attend the assembly.
On October 14, Shop Steward Colon sent Vazquez the list of bargaining unit employees
who signed the petition on October 12, to authorize a strike at the Employer (GC Exh. 29).
By letter dated October 14, IBT General President James P. Hoffa approved strike funds
to members employed by the Respondent Employer (GC Exh. 18).
On October 20-22, Magriz, Quiara, and Rivera, along with other Local 901 Shop
Stewards and employees of other employers, attended and participated in the strike at the
Respondent Employer’s facility.
On October 27, Attorney Maza sent a letter to Local 901 with photographs requesting to
identify those who attended the October 20-22 strike (JT Exh. 20).
By letters dated January 12, 2009, Local 901 Secretary-Treasurer Vazquez notified
Magriz, Quiara, and Rivera that internal union charges have been brought against them
because of their attendance at the October 12 assembly and participation in the October 20-22
strike (U Exh. 1).
By letter dated January 26, 2009, Vazquez notified Magriz, that a hearing on the internal
union charges had been set for February 14, 2009. Hearing dates for the charges against
Quiara and Rivera were scheduled for February 12 and 13, 2009, respectively (GC Exh. 23).
The three employees sought postponements due to scheduling conflicts but Local 901 denied
the requests.
By letters dated March 10, 2009, Local 901 notified the three Shop Stewards that they
were being expelled from membership and each fined the sum of $10,000 (GC Exh. 27). The
actions imposed on Magriz, Quiara, and Rivera were the only discipline Local 901 has applied
to any of its members in the past three years.
By letters dated March 23, 2009, Magriz, Quiara, and Rivera appealed the disciplinary
actions imposed on them to IBT headquarters in Washington DC (GC Exh. 30).
By letter dated April 27, 2009, General Teamsters President Hoffa denied the appeal
and a request for a stay of the imposed sanctions (U Exh. 7).
In September 2009, Local 901 filed internal union charges against Raymond Reyes,
Humberto Miranda, Jesus Baez, and Orlando Hernandez for attending the October 12 assembly
and participating in the October 20-22 strike. Both Reyes and Hernandez hold the position of
Local 901 Shop Stewards at employers other then the Respondent Employer. Local 901 did not
impose any disciplinary sanctions against these members.
The factual Stipulation of the parties (General Counsel, Local 901, and the Charging
Parties) indicates that Edgardo Rivera, a Local 901 Shop Steward at UPS, attended the October
20-22 strike but no charges or disciplinary sanctions were brought against him (GC Exh. 34).
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To date, Local 901 has made no attempts to collect the fines it imposed on Magriz,
Quiara, and Rivera, nor has it attempted to enforce the union security clause of the collective-
bargaining agreements it has with their employers.
The Stipulation further provides that no officials of Local 901 communicated directly with
union members about its position regarding the strike nor did Local 901 inform Magriz, Quiara,
or Rivera that the October 20-22 strike was not authorized by it or that they could be subject to
internal union sanctions if they supported or participated in the strike. Additionally, none of the
Local 901 members who were employees of the Respondent Employer were disciplined for
attending the October 12 assembly or participating in the October 20-22 strike.
Lastly, the Stipulation notes that Vazquez and other Local 901 officials have stated to its
members that the reasons why Magriz, Quiara, and Rivera were disciplined was because they
participated in an illegal strike in violation of the “Broad Order”, and the Respondent Union’s By-
Laws, and International Constitution.
Discussion
Section 7 of the Act, guarantees employees the right to engage or refrain from engaging
in concerted activities for the purpose of collective bargaining. Section 8(b)(1)(A) of the Act
makes it an unfair labor practice for a labor organization to restrain or coerce employees in the
exercise of their rights guaranteed by Section 7, provided that this paragraph shall not impair
the right of a labor organization to prescribe its own rules with respect to the acquisition or
retention of membership therein. The Supreme Court has held that the federal labor laws
impose on a union, in acting as an exclusive bargaining representative, a statutory duty to fairly
represent all workers in the bargaining unit, which includes the duty to treat all such workers
without hostility or discrimination, to exercise its discretion with good faith and honesty, and to
avoid arbitrary conduct. Vaca v. Sipes, 386 U.S. 171 (1967). A breach of this duty of fair
representation constitutes a violation of Section 8(b)(1)(A). NLRB v. General Truckdrivers, 778
F.2d 207, 212-13 (5th Cir. 1985). However, the Supreme Court has determined that the proviso
to Section 8(b)(1) “leaves a union free to enforce a properly adopted rule which reflects a
legitimate union interest, impairs no policy Congress has imbedded in the labor laws, and is
reasonably enforced against union members who are free to leave the union and escape the
rule.” Scofield v. NLRB, 394 U.S. 423 (1969). Indeed, the Court held in Scofield that the
imposition of reasonable union fines on members for violating a union rule relating to production
ceilings was not subject to challenge based on Section 8(b)(1)(A). Because the rule was aimed
at a legitimate union interest and did not contravene any policy of the Board, and because it was
enforced solely through internal union mechanisms not affecting employment, the Court found
that its enforcement by reasonable fines did not constitute the restraint or coercion prohibited by
Section 8(b)(1)(A). In Office Employees Local 251 (Sandia National Laboratories), 331 NLRB
1417, 1418-1419 (2000), the Board held that Section 8(b)(1)(A)’s proper scope, in union
discipline cases, is to proscribe union conduct against union members that (1) impacts on the
employment relationship, (2) impairs access to the Board’s processes, (3) pertain to
unacceptable methods of union coercion, such as physical violence in organizational or strike
contexts, or (4) otherwise impairs policies imbedded in the Act.
Contrary to the position taken by Local 901, and consistent with my finding above, I
conclude that the October 20-22 strike was caused by the unfair labor practices of the
Respondent Employer. Therefore, the attendance at the October 12 assembly and the
participation in the October 20-22 strike by Magriz, Quiara, and Rivera, is protected conduct
under the Act. Here, imposing discipline and fines against union members who engage in
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protected concerted activities by their attendance at the October 12 assembly, and participating
in an unfair labor practice strike, is conduct within the Act’s protection since it impairs policies
imbedded in the Act. Triangle Electric Co., 335 NLRB 1037 (2001); International Union of
Operating Engineers, Local 400, AFL-CIO (Hilde Construction Company) 225 NLRB 596 (1976).
I further find that the disciplinary sanctions imposed on Magriz, Quiara, and Rivera, are
disparate when compared to the treatment received by other Stewards and members who
engaged in the same conduct. The record confirms that while Local 901 sent a letter to the
Respondent Employer on October 20, stating that it did not authorize or condone the strike, it
never took any affirmative action to independently notify its members that it had withdrawn
support for the strike at any time before or after the commencement of the strike. Thus, Local
901 never informed Magriz, Quiara, and Rivers that the strike was not supported by it, despite
strike funds having been requested and approved. In this regard, Local 901 knew on October
14 who had attended the October 12 assembly and later in October 2008 who had participated
in the October 20-22 strike, yet it did not impose sanctions on any other Shop Stewards or union
members for their attendance or participation at the assembly or the strike. I also note that
none of the other Shop Stewards were candidates in the internal union election held on October
3. Accordingly, I conclude that the actions of Local 901 in filing internal union charges and
imposing sanctions against Magriz, Quiara, and Rivera was not only disparate but occurred in
part because they comprised a slate of candidates that opposed the slate favored by Local 901.
Likewise, I reject the argument advanced by Local 901 that the actions of Magriz,
Quiara, and Rivera violated the Court imposed “Broad Order.” Rather, I find that the terminated
Employer Shop Stewards discussed and explained the “Broad Order” at the October 19 pre-
strike meeting at Shop Steward Colon’s home and also on the morning of October 20 prior to
the commencement of the strike. Additionally, as found above, the Respondent Union made it
abundantly clear to the Employer that it did not authorize or call the October 20-22 strike. Thus,
I am hard pressed to find that Magriz, Quiara, and Rivera violated the “Broad Order” in any way,
particularly when the Order is directed at the leadership of Local 901 who engage in strike
misconduct. Indeed, I particularly note the Respondent Union’s By-Laws that specifically state,
“The shop stewards are not officers, nor agents of this Union” (U Exh. 9-Sec. 18.08). Moreover,
it is undisputed that when the Respondent Union disciplined Magriz, Quiara, and Rivera on
March 10, 2009, it knew that no violence or conduct in violation of the “Broad Order” had
occurred. In fact, no entity filed any legal actions against the Respondent Union for the
activities associated with the three day strike at the Employer’s facility nor was any illegal
activity reported to the Court that oversees the “Broad Order”. Accordingly, as found above, the
actions of the Respondent Union were disparate and in part taken against these individuals
because of their participation in the internal union election against the slate of candidates
supported by Local 901.
Lastly, since I find that the strike was caused by the unfair labor practices of the
Employer and therefore was not an illegal strike, the argument that the Charging Parties
violated Local 901’s By-Laws and its International Constitution is rejected.

In summary, based on the above recitation, I find that Local 901 violated Section
8(b)(1)(A) of the Act. Therefore, it must rescind the fines levied against Magriz, Quiara, and
Rivera, and reinstate them to full membership in the Respondent Union including their Shop
Steward positions.42

42 While I agree with the Respondent Union that the portion of the unfair labor practice
charge filed on July 31, 2009, alleging a violation regarding the filing of internal union charges
Continued
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Conclusions of Law
1. Respondent is an employer engaged in commerce within the meaning of Section
2(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. The Respondent Employer violated Section 8(a)(1) and (3) of the Act by:
(a) Suspending and then discharging its employee Miguel Colon because he
assisted the Respondent Union and engaged in protected concerted activities to protest the
Employer’s refusal to permit a Business Representative of the Respondent Union to meet with
employees during their non-work time about on-going collective-bargaining negotiations and
other matters related to their terms and conditions of employment.
(b) Suspending four and discharging 34 bargaining unit employees who ceased
work concertedly and engaged in an unfair labor practice strike to protest the Employer’s
suspension and discharge of five Shop Stewards and to reconvene stalled collective-bargaining
negotiations between the Employer and Local 901.
(4) The Respondent Employer violated Section 8(a)(1), (3), and (4) of the Act by
coercing its employees Luis Bermudez, Jose Rivera-Barreto, Virginio Correa, and Luis
Melendez into signing a “last chance” agreement conditioning their reinstatement from their
suspension on the relinquishment of their right to file unfair labor practice charges or give
testimony to the Board, and thereafter terminated them for allegedly violating the terms of that
agreement.
(5) The Respondent Union violated Section 8(b)(1)(A) of the Act on March 10, 2009, by
expelling from membership and removing Migdalia Magriz, Maritza Quiara and Silva Rivera
from their Shop Steward positions, and fining each of them $10,000.
(6)The Respondent Employer did not violate Section 8(a)(1) and (3) of the Act when it
suspended and then terminated Shop Stewards Carlos Rivera, Felix Rivera, Romian Serrano,
and Francisco Marrero for their participation in a work stoppage at the Employer’s facility.
(7) The Respondent Employer did not violate Section 8(a)(1) and (3) of the Act when it
terminated its employee Dennes Figueroa.

Remedy
Having found that the Respondent Employer and the Respondent Union have engaged
in certain unfair labor practices, I find that they must be ordered to cease and desist and to take
certain affirmative action designed to effectuate the policies of the Act.
The Respondent Employer unlawfully suspended and subsequently discharged
employee Miguel Colon. It must reinstate Colon to his former position or if that position no
longer exists, to a substantially equivalent position without prejudice to his seniority or any other
_________________________
against the Charging Parties is time barred under Section 10 (b) of the Act, the expulsion from
membership, removal from their Shop Steward positions, and the fine allegations are timely
having been imposed on March 10, 2009.
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rights or privileges previously enjoyed and make him whole from September 10, 2008, for any
loss of earnings and other benefits suffered as a result of the discrimination taken against him.43
The Respondent Employer also unlawfully suspended and subsequently terminated Luis
Bermudez, Jose Rivera-Barreto, Virginio Correa, and Luis Melendez,44 and unlawfully
discharged Carlos Rivera-Sandoval, Benjamin Rodriquez-Ramos, Edwin Cotto-Roque, Hector
Sanchez-Torres, Jariel Rivera-Rojas, Hector Vazquez-Rolon, Jorge-Ramos-Arroyo, Jose
Rivera-Ortiz, Vidal Arguinzoni, Miguel Cotto-Collazo, Jose Diaz, Alexis Hernandez, Ada Flores,
Jan Rivera-Mulero, Juan Resto, Nilsa Navarro, Henry Cotto, Hector Rodriguez, Juan Rivera-
Diaz, Jose Collazo-Flores, Gabriel Rojas-Cruz, Josue Rivera-Aponte, Jose Suarez, Jorge
Oyola, Pedro Colon-Figueroa, Jose Sanchez, Luis Ocasio, Luis Rivera-Morales, Jose Rivera-
Martinez, Carlos Rivera-Rodriguez, Eddie Rivera-Garcia, Giovanni Jimenez, Rafael Oyola-
Melendez and Carlos Ortiz-Ortiz, all of whom engaged in an unfair labor practice strike, and
therefore must offer them reinstatement to their former positions or if those positions no longer
exist, to substantially equivalent positions without prejudice to their seniority or any other rights
or privileges previously enjoyed and make them whole for any loss of earnings and other
benefits, computed on a quarterly basis from October 20, 2008, less any net interim earnings,
as prescribed in F. W. Woolworth Co. 90 NLRB 289 (1950), plus interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).45
The Respondent Union must expunge Migdalia Magriz, Maritza Quiara and Silvia
Rivera’s expulsion of membership from its records, reinstate them to full membership status and
their Shop Steward positions, and rescind the fines levied against them.

43 Contrary to the Respondent’s Employer’s argument in its post-hearing brief (p 76) that
Colon is not entitled to reinstatement because Lopez refused the Employer’s offer to reinstate
him, I find that the record does not support such an assertion. In this regard, Lopez credibly
testified that Attorney Maza proposed that the work stoppage issue could be resolved if Local
901 would agree to the reinstatement of only three of the five Shop Stewards. At no time did
Attorney Maza identify to Lopez which of the three Shop Stewards he was referring to regarding
the offer of reinstatement. The record confirms that Lopez rejected the offer and replied that all
five Shop Stewards must be reinstated. It is noted that Attorney Maza did not testify during the
proceeding and the testimony of Lopez regarding this issue is unrebutted (TR 132). .
44 The Employer also coerced these four employees into signing a “last chance” agreement
conditioning reinstatement from their suspensions on the relinquishment of their right to file
unfair labor practice charges or give testimony to the Board in violation of Section 8(a)(1) of the
Act, and then subsequently terminated the four employees for allegedly violating the terms of
the agreement, in violation of Section 8(a)(1), (3), and (4) of the Act. I find, however, that the
remedy for this violation including reinstatement is the same as for their participation in the
unfair labor practice strike. However, since the General Counsel seeks that the Employer jointly
and severally with the Respondent Union make whole these employees due to their both
coercing employees to execute the “last chance” agreement, it is so ordered. Indeed, the
Respondent Union agreed to this remedy when it executed the above noted settlement
agreement. The back pay period for each employee is Bermudez from November 6 to
December 7, 2009, Rivera from November 13 to December 7, 2009, Correa from December 10
to December 7, 2009, and Melendez from January 9, 2009 to December 7, 2009.
45 Although the General Counsel makes compelling arguments in its post-hearing brief that
the current practice of awarding only simple interest on backpay and other monetary awards
should be replaced with the practice of compounding interest, such a remedy is within the
province of the Board to decide. Therefore, since the Board has not changed its current
practice, the undersigned is not disposed to grant such a remedy.
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On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended46
ORDER
A. CC 1 Limited Partnership d/b/a Coca Cola Puerto Rico Bottlers. Cayey, Puerto Rico,
its officers, agents, and representative shall
1. Cease and desist from
(a) Discharging and suspending employees because they engaged in union or protected
concerted activities.
(b) Coercing employees into signing “last chance” agreements conditioning their
reinstatement on the relinquishment of their right to file unfair labor practice charges
or give testimony to the Board.
(c) Discharging and suspending employees because they participated in a strike caused
by our unfair labor practices.
(d) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days of the date of this Order, offer Miguel Colon reinstatement to his
former position, discharging the occupant of that position if necessary, or if that
position no longer exists, to a substantially equivalent position without prejudice to
his seniority or any other rights or privileges previously enjoyed, and remove any
reference from the Employer’s files of Colon’s unlawful suspension and discharge,
and within 3 days thereafter notify Colon in writing that this has been done, and that
the suspension and discharge will not be used against him in any way.
(b) Within 14 days of the date of this Order, offer the unfair labor practice strikers listed
in the remedy section of this decision reinstatement to their former positions,
discharging any replacements who occupy those positions, or if those positions no
longer exist, to substantially equivalent positions without prejudice to their seniority or
any other rights or privileges previously enjoyed. Within 3 days thereafter notify all of
the unfair labor practice strikers in writing that this has been done, and that the
suspensions or discharges will not be used against them in any way.
(c) Make whole Miguel Colon from September 10, 2008, and the unfair labor practice
strikers from October 20, 2008, for any loss of earnings and other benefits suffered
as a result of the discrimination against them in the manner set forth in the remedy
section of this decision.
(d) Make whole Luis Bermudez, Jose Rivera-Barreto, Virginio Correa, and Luis
Melendez jointly and severally with the Respondent Union, for any loss sustained by
reason of their suspensions and discharges plus interest in the manner set forth in fn
44 of this decision.
(e) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated

46 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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by the Board or its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records, including an
electronic copy of such records if stored in electronic form, necessary to analyze the
amount of back pay due under the terms of this Order.
(f) Within 14 days after service by the Region, post at its facility in Cayey, Puerto Rico,
copies of the attached notice marked “Appendix A”.47 Copies of the notice, on forms
provided by the Regional Director for Region 24, after being signed by the
Employer’s authorized representative, shall be posted by the Employer in the English
and Spanish language, and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Employer to ensure that the notices are not
altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent Employer has gone out of business
or closed the facility involved in these proceedings, the Employer shall duplicate and
mail, at its own expense, a copy of the notice to all current employees and former
employees employed by the Respondent Employer at any time since September 9,
2008.
(g) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent Employer has taken to comply.
B. Union De Tronquistas De Puerto Rico, Local 901, International Brotherhood of Teamsters, is
officers, agents, and representatives, shall
Cease and desist from
(a) Expelling Migdalia Magriz, Maritza Quiara and Silvia Rivera from membership
in Local 901, removing them from their Shop Steward positions, and imposing
fines against them for engaging in lawful protected activities under the Act.
(b) In any like or related manner restraining or coercing employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Reinstate Migdalia Magriz, Maritza Quiara and Silvia Rivera to full
membership including their Shop Steward positions and rescind the $10,000
fines levied against each of them.
(b) Within 14 days from the date of this Order, remove from its files, any
reference to the unlawful expulsion of membership for these individuals, and
within 3 days thereafter, notify them in writing that we have done so and that
we will not use the expulsion against them in any way.
(c) Within 14 days after service by the Region, post at the Respondent Union
Office, copies of the attached notice marked “Appendix B.”48 Copies of the

47 If this Order is enforced by a Judgment of the United States Court of Appeals, the words
in the notice reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD”
shall read “POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF
APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”
48 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
Continued
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notices, on forms provided by the Regional Director for Region 24, after being
signed by the Respondent Union’s authorized representatives, shall be
posted in the English and Spanish language, and maintained for 60
consecutive days in conspicuous places including all places where notices to
employees and members are customarily posted. Reasonable steps shall be
taken to ensure that the notices are not altered, defaced, or covered by any
other material. In the event that, during the pendency of these proceedings,
the Respondent Union has gone out of business or closed the Union office
involved in these proceedings, it shall duplicate and mail, at its own expense,
a copy of the notice to all employees and current members employed by
Coca Cola Puerto Rico Bottlers at any time since March 10, 2009.
(d) Sign and return to the Regional Director sufficient copies of the notice for
posting by the Respondent Union at all places where notices to employees
and members are customarily posted.
(e) Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region
attesting to the steps that it has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the
Act not specifically found.
Dated, Washington, D.C., April 16, 2010
_____________________
Bruce D. Rosenstein
Administrative Law Judge
_________________________
National Labor Relations Board.”
JD–23–10
Cayey, PR
APPENDIX A
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and
has ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain on your behalf with your employer
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT discharge and suspend employees because they engage in union or
protected concerted activities.
WE WILL NOT coerce employees into signing “last chance” agreements conditioning
their reinstatement on the relinquishment of their right to file unfair labor practice charges or give
testimony to the Board.
WE WILL NOT discharge or suspend employees because they participated in a strike
caused by our unfair labor practices.
We WILL NOT in any like or related manner interfere with, restrain, or coerce employees
in the exercise of rights guaranteed them by Section 7 of the Act.
WE WILL, within 14 days of the date of this Order, offer Miguel Colon reinstatement to
his former position, discharging the occupant of that position if necessary, or if that position no
longer exists, to a substantially equivalent position without prejudice to his seniority or any other
rights or privileges previously enjoyed, and remove any reference from the Employer’s files of
Colon’s unlawful suspension and discharge, and within 3 days thereafter notify Colon in writing
that this has been done, and that the suspension and discharge will not be used against him in
any way.
WE WILL, within 14 days of the date of this Order, offer the unfair labor practice strikers
listed in the remedy section of this decision reinstatement to their former positions, discharging
any replacements who occupy those positions, or if those positions no longer exist, to
substantially equivalent positions without prejudice to their seniority or any other rights or
privileges previously enjoyed. Within 3 days thereafter notify all of the unfair labor practice
strikers in writing that this has been done, and that the suspensions or discharges will not be
used against them in any way.
WE WILL, make whole Miguel Colon from September 10, 2008, and the unfair labor
practice strikers from October 20, 2008, for any loss of earnings and other benefits suffered as a
result of the discrimination against them in the manner set forth in the remedy section of this
decision.
JD–23–10
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WE WILL, make whole Luis Bermudez, Jose Rivera-Barreto, Virginio Correa, and Luis
Melendez jointly and severally with the Respondent Union, for any loss sustained by reason of
their suspensions and discharges plus interest in the manner set forth in fn 44 of this decision.
CC 1 Limited Partnership d/b/a Coca Cola Puerto
Rico Bottlers
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
525 F. D. Roosevelt Avenue, La Torre de Plaza, Suite 1002
San Juan, Puerto Rico 00918-1002
Hours: 8:30 a.m. to 5 p.m.
787-766-5347
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 787-766-5377
JD–23–10
Cayey, PR
APPENDIX B
NOTICE TO MEMBERS
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain on your behalf with your employer
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL, reinstate Migdalia Magriz, Maritza Quiara and Silvia Rivera to full membership
including their Shop Steward positions and rescind the $10,000 fines levied against each of
them.
WE WILL, within 14 days from the date of this Order, remove from our files, any
reference to the expulsion from membership of Migdalia Magriz, Maritza Quiara and Silvia
Rivera, and WE WILL, within 3 days thereafter, notify them in writing that we have done so and
that we will not use the expulsion against him in any way.
WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
Union De Tronquistas De Puerto Rico, Local 901,
International Brotherhood of Teamsters
(Labor Organization)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
525 F. D. Roosevelt Avenue, La Torre de Plaza, Suite 1002
San Juan, Puerto Rico 00918-1002
Hours: 8:30 a.m. to 5 p.m.
787-766-5347
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 787-766-5377