Congreso De Uniones Industriales De Puerto Rico, Ind.Download PDFNational Labor Relations Board - Board DecisionsMar 17, 1967163 N.L.R.B. 448 (N.L.R.B. 1967) Copy Citation 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Kroger Co., its officers , agents , successors, and assigns , shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Amalgamated Meat Cutters and Butcher Workmen of North America, Local Union No. 430, AFL-CIO, as the exclusive bargaining representative of its employees by refusing to. furnish to the Union or its agents information with respect to Respondent's O.R. program relied upon by the Respondent in determining anticipated workloads in the meat departments of its Dayton division and in allocating employee working hours to those departments , and the data upon which the O.R. program is based. (b) In any like or related manner interfering with, restraining , or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Furnish to the Union , upon request, the information and data described in paragraph 1(a) above. (b) Post at its stores in the Dayton , Ohio , division, copies of the attached notice marked "Appendix."ts Copies of said notice, to be furnished by the Regional Director for Region 9, after being duly signed by the representative shall be posted by the Respondent, immediately upon receipt thereof , and be maintained by it for 60 consecutive days thereafter , in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith."' the exercise of their rights under the law to form, join, or assist any labor organization , or to bargain collectively through representatives of their choosing, or to engage in concerted activities for their mutual aid or protection. WE WILL , upon request , furnish to Amalgamated Meat Cutters and Butcher Workmen of North America, Local Union No. 430, AFL-CIO, or its agents, information concerning the Company's O.R. program. THE KROGER CO. (Employer) Dated By (Representative ) (Title) 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. If employees have any question concerning this notice or complaince with its provisions, they may communicate directly with the Board's Rgional Office, Room 2407, Federal Office Building , 550 Main Street, Cincinnati, Ohio 45202, Telephone 684-3686. Congreso De Uniones Industriales De Puerto Rico , Ind. and Gayley Rico Company Congreso De Uniones Industriales De Puerto Rico , Ind. and Bayamon Transport Service. Cases 24-CB-570 and 24-CB-571. ''' In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." '" In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing , within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Rcommended Order of a Trial Examiner of the National Labor Relations Board , and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT refuse to bargain collectively with Amalgamated Meat Cutters and Butcher Workmen of North America, Local Union No. 430, AFL-CIO, as the exclusive bargaining representative of our employees by refusing to furnish to it or its agents information with respect to the Company's O.R. program used by the Company in determining anticipated workloads in its Dayton division meat departments and in allocating employee work hours to those departments , and also the data upon which the O.R. program is based. We will not in any like or related manner interfere with , restrain, or coerce our employees in March 17,1967 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZAGORIA On November 30, 1966, Trial Examiner John G. Gregg issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease.and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that Respondent had not engaged in certain other alleged unfair labor practices, and recommended dismissal of such allegations. Thereafter, the General Counsel filed exceptions to the Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, 163 NLRB No. 60 CONGRESO DE UNIONES INDUSTRIALES DE PUERTO RICO 449 and recommendations of the Trial Examiner , except plant in violation of Section 8(b)(1)(A ) of the National as modified below .' Labor Relations Act. The Respondent denies the ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, Congreso De Uniones Industriales De Puerto Rico, Ind., its officers , agents, and representatives , shall take the action set forth in the Trial Examiner's Recommended Order, as so modified. ' In the absence of any exception thereto, we adopt pro forma the Trial Examiner's findings and conclusions that in 11 instances, as alleged in the complaint, the Respondent violated Section 8(b)(1)(A) of the Act, including acts of violence , threats of violence, and damage to property The General Counsel excepts to the Trial Examiner 's finding that the evidence did not sufficiently establish a 12th allegation that Respondent stoned employee Cintron' s house, and his consequent recommendation that this additional allegation of Section 8(b)(1)(A) conduct be dismissed. In so finding , the Trial Examiner relied , at least in part , on his "observation of the demeanor of the witnesses." Under the Board 's established policy not to overrule a Trial Examiner's credibility findings unless a clear preponderance of all the relevant evidence convinces us that they were incorrect, we find insufficient basis for disturbing the Trial Examiner's credibility findings on this issue Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F.2d 362 (C A. 3). Moreover, such finding of an additional damage to property violation of Section 8(b)(1)(A), urged by the General Counsel, would appear to be somewhat cumulative , and in any event is covered by the broad order herein The General Counsel excepts to the Trial Examiner's failure to order that the notice be posted in both English and Spanish, in view of the widespread usage of Spanish in Puerto Rico , and the Board 's consequent recognition of the necessity for posting notices in both Spanish and English in Puerto Rico We find merit in this exception , and hereby amend Section 2(a) of the Recommended Order accordingly See Call, Burnup , and Sims, Inc, 159 NLRB 1661; Puritana Manufacturing Corporation, 159 NLRB 518 The General Counsel also excepts to an alleged failure of the Trial Examiner to recommend a notice expressed in simple and readily understandable language, in conformity with the Board's Decision in Bilyeu Motor Corp, 161 NLRB 982 As the notice appears to be expressed in such language with respect to the violations found in this case, and as the General Counsel has failed to specify in what respects the notice should be modified, we find no merit in this exception. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN G. GREGG, Trial Examiner : Upon charges filed on May 11 , 1966 , by Gayley Rico Company, and May 24,1966, by Bayamon Transport Service, the Regional Director for Region 24 issued an order consolidating these cases for hearing and issued a consolidated complaint dated July 29, 1966 , against Congreso De Uniones Industriales De Puerto Rico, Ind., hereinafter referred to as the Respondent. In substance the complaint alleges that during the course of a strike , Respondent by its officers and agents engaged in, or encouraged and incited strikers and picketers to engage in, acts of restraint and coercion against employees and other persons who were desirous of entering Gayley's commission of any unfair labor practices. Pursuant to appropriate notice, hearing was held before me in Santurce , Puerto Rico, on September 12,13, and 14, 1966 . All parties were represented and participated in the hearing and were afforded the right to present evidence, to examine and cross-examine witnesses , to offer oral arguments , and to file briefs . Briefs were filed by the General Counsel , the Charging Parties, and the Respondent , and have been carefully considered. Upon the entire record in this case and from my observation of the demeanor of the witnesses as they testified , the following findings of fact , conclusions of law, and recommendations are made: 1. THE BUSINESS OF THE EMPLOYERS Gayley Rico Company is a corporation duly organized under , and existing by virtue of, the laws of the State of Virginia , maintains its principal office, plant , and place of business at Barrio Palmas, Catano, Puerto Rico, and is engaged in the manufacture , sale, and distribution of elastic fabric and related products . During the past year, Gayley , in the course of its business operations purchased, transferred , and delivered to its Catano plant , goods and materials valued in excess of $50,000 of which goods and materials valued in excess of $50,000 were transported to said plant directly from States of the United States other than the Commonwealth of Puerto Rico. During the past year Gayley Rico Company in the course of its business operations manufactured , sold, and distributed at said plant, products valued in excess of $500,000 , of which products valued in excess of $50,000 were shipped from said plant directly to States of the United States other than the Commonwealth of Puerto Rico. Gayley Rico Company is, and at all times material herein has been , engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. Bayamon Transport Service is a corporation duly organized under and existing by reason of the laws of the Commonwealth of Puerto Rico. During the past year in the course of its trucking operations within the Commonwealth of Puerto Rico, Bayamon Transport derived gross income in excess of $70,000 from said operations which were performed for various enterprises including Gayley Rico Company, Frozen Fruits Food Concentrates , Inc., Toa Canning Company, Coca Cola Bottling Co . of Puerto Rico, and Alcoa International, Inc., each of which annually produces , sells, and ships goods valued in excess of $50,000 directly out of the Commonwealth of Puerto Rico. Bayamon Transport Service is and at all times material herein has been engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Congreso De Uniones Industriales De Puerto Rico, Inc., is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Interference , Restraint , and Coercion The complaint , as amended at the hearing, alleges that during the course of the strike and picketing activities, the 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent Union 's officers and agents engaged in, or encouraged and incited the strikers and picketers under their direction and control to engage in, acts of restraint and coercion against employees and other persons who were desirous of entering the plant of Gayley to perform services therein . The complaint specifies 12 acts, alleging that by each of the acts , and their totality, the Respondent Union did intimidate and coerce employees in the exercise of their rights under Section 7 of the Act to refrain from joining or supporting the Respondent Union's strike activities against the Gayley Rico Company. Gayley employee Jesus Perez Cintron testified that when leaving his work at the plant at 6 o'clock on May 10, 1966, which is the date the strike started, he was physically accosted , held, and shaken by Isabelo Matos, one of a group of picketing employees , some of whom held boards, and was threatened with kicking and having his face split open . He testified that while this took place, Union President Figueroa and Franklin Caban Ortiz were 10 feet away. This testimony was corroborated by testimony of Victor Manuel Nieves and was not denied; I credit the account given by Cintron . I find that the alleged misconduct did in fact take place, and that it took place in the presence of Union President Figueroa . The remaining question is whether or not Figueroa took steps reasonably calculated effectively to stop such misconduct . While the testimony indicates that Franklin Caban, who was with Figueroa, did in fact subsequently intervene to prevent further violence, there was no intervention by Figueroa, and no action was taken by Figueroa reasonably calculated to effectively stop the misconduct , nor to disavow or disclaim it . Accordingly, I find this to be a violation of Section 8(b)(1)(A) of the Act. Teamsters Local 783, International Brotherhood of Teamsters, Chauffeurs, Warehousemen , and Helpers of America (Coca-Cola Bottling Company ofLouisville), 160 NLRB 1776. Cintron testified further that on or about Sunday, May 15, his house was stoned and its windows broken. Rosado, an employee of Gayley, testified that around May 11, 1966 , one "Chiqui " asked him if he knew where Cintron' s house was but that he did not know . Rosado testified further that the next day another striker Rufino Benitez, told "Chiqui" that he knew where Cintron lived and that Rufino Rosado and another set out to find the house. Benitez, an employee of Gayley, testified that during the strike, about a week after it started , while he, Benitez, was picketing at the Gayley warehouse at night, Rosado came to him and according to Benitez "when he (Rosado) arrived I asked him if he was leaving and he said yes, because he was running away. I asked why, and he told me: because Chiqui , Pedro Perez and he, Rosado, had gone to Jesus Perez Cintron 's home and they had done a job that Mr . Arturo had told them to do." Benitez, while testifying , physically gestured to Arturo Figueroa who was present during the testimony. I am not persuaded on the basis of my observation of the demeanor of the witnesses as they testified and on the basis of the testimony of record that Montesino, Rosado, and one Perez did in fact stone Cintron ' s house, breaking windows and threatening its occupants . Accordingly, I find that that part of the complaint which alleges the stoning of Cintron's house by Montesino and others has not been established by substantial evidence of record and accordingly will recommend that it be dismissed. The General Counsel alleged that during the course of the Respondent Union's strike and picketing activities the Union ' s agents and officers in charge permitted some of the strikers under their control and direction to carry clubs and sticks which they brandished and used in a threatening manner towards employees and other persons who approached the entrance to said plant for the purpose of entering therein. Considerable credible testimony was adduced on the record by witnesses establishing this as a fact . Ruben Koch , plant manager for Gayley, and Ed Stall, Jr., testified , and I credit their testimony, that strikers carried and brandished sticks. I find , therefore , based on credible testimony on the record as a whole that the pickets and strikers carried sticks and clubs in a manner designed to intimidate and threaten employees of Gayley in the exercise of rights protected by Section 7 of the Act, with the knowledge of the union agents in charge of strike and picketing activities and without attempt on their part effectively to stop , or to disavow or disclaim , this conduct, all in violation of Section 8(b)(1)(A) of the Act. Gayley Foreman Pedrosa testified that on or about May 11 , 1966, he was stopped by Merced in the presence of other strikers including Caban, that Merced threatened to beat him up and said that he and the strikers would break Pedrosa 's ribs, and that Merced roughed him up. While Merced denied this , I credit the testimony of Pedrosa whom I found to be forthright and candid. I find therefore the aforesaid conduct by Merced and other strikers in physically assaulting and threatening Pedrosa was part of the overall pattern of violence and coercion established at the beginning of the strike by Figueroa and neither disclaimed nor disavowed by the Respondent Union , and find the aforesaid conduct a violation of Section 8(b)(1)(A) of the Act. It is further alleged in the complaint that on or about May 12, 1966 , a large group of picketers and strikers under the control and direction of the Respondent 's agents in charge of the strike and picketing activities were permitted to engage in mass picketing and blocking tactics at the main entrance to the Gayley plant and to use threats of damage and physical harm to a management representative and some employees of Gayley who were attempting to enter the Gayley plant in an automobile driven by the management representative. In this connection there was straightforward testimony by Ed Newton Stall, Jr., director of manufacturing for Gayley, whose testimony I credit, that about 1 a.m. very early on the morning of May 12, 1966 , driving a car in which Patterson and Clark were also passengers , he approached the plant . Parked immediately in front of the plant gate and partially blocking the entrance were two vehicles. As Stall attempted to drive through the gate, the policeman and the guard who were outside the gate moved aside and a group of pickets gathered and approached the car in front and on both sides. Victor Fonseca, recognized by Stall as an employee of Gayley, came to the car window and inquired about the two other occupants of the car. Stall told him they were employees , that they wanted to enter the plant and would the strikers please let them enter. Fonseca refused to let them enter . The crowd of 8 to 12, some of them carrying sticks and clubs, became noisy. A resounding blow struck the car. Stall tried to drive slowly inside the gate. Fonseca jumped in front of the car stating something like "you can't go in." Stall drove inside the gate where he and the other occupants got out and were surrounded by the crowd of pickets who had followed . The three tried to walk toward the rear entrance of the plant but were restrained by the pickets . At this time, according to Stall, Fonseca placed his hands on CONGRESO DE UNIONES INDUSTRIALES DEI PUERTO RICO 451 Clark and said "the Americans cannot go in ." Fonseca continued to state that the other two could not go into the plant, and placed his hand on Stall's shoulder. About this time one of the strikers, Hernandez, said to Clark "You're an American, you don't belong in this. We have families, you probably have a family in America. You ought to go home, you ought to stay out of this." This testimony by Stall which I credit was substantiated by the testimony of Koch whom I also credit. I find, therefore, that this conduct of mass picketing and blocking tactics and the physical menacing of Stall and the use of threats to Clark by Fonseca and a group of strikers without any disavowal or disclaimer on the part of the Respondent Union to be part of the pattern of conduct established by the Respondent Union was fostered and instigated by the Union and constitutes a violation of Section 8(b)(1)(A) of the Act. Another Gayley employee, Juan Gascot, testified that he was on the shift starting at 11 p.m. on May 10, 1966, the day the strike started, that when he arrived in a car at the plant at 10 p.m. a group of strikers were in front of the factory stopping workers from going into the plant. He remained in the area. About 1 or 2 o'clock in the morning when Gascot tried to leave the scene, Merced came to one door and Caban to the other and told him he could not leave. Later about 3 or 4 in the morning, he again attempted to leave. As he started the car he felt a "bump" on the back of the car where it had been hit by a piece of wood. The next morning between 9 and 10 a.m. Gascot went to work through the special police. When he was inside, Merced came to the fence and told Gascot that Gascot was hungry, that Gascot had to get out of the factory, that some day Gascot would have to come out, and that "they would beat" Gascot. He also told Gascot to watch his car as "they" were going to break it up. I credit this testimony by Gascot and find the conduct of Merced to be a violation of Section 8(b)(1)(A) of the Act. Anibal Berrios, a driver for Bayamon Transport, testified that on May 13, 1966, he drove his tractor to the Gayley plant at 2:30 p.m. to transport a van of merchandise out of the factory. He parked in front of the factory and started for the office. He was surrounded and stopped by a group of about 20 pickets. When queried by them he told them he was there to take out a loaded van. He was told he could not. He was not permitted to go to the office until he assured the group that that was all he would do. I find that ample testimony of record establishes the existence of a pattern of conduct by the Respondent Union of coercive acts including blocking, threats, violence, and damage to property. I find the foregoing conduct of the group of pickets toward Berrios, whose testimony I credit, conformed to the pattern of coercive conduct established by the Respondent and designed to prevent entrance into and emergence from the plant, therefore in violation of Section 8(b)(1)(A) of the Act. The complaint alleged additionally that on or about May 17, 1966, a group of strikers and picketers led by Montesino set fire to a Bayamon Transport Service truck. Testimony of record which I credit establishes that after the Berrios incident on May 13, 1966, Alvarez, president of Bayamon, went to the Gayley plant where he was asked by Caban, a former schoolmate, not to move the van out of the Gayley premises . According to his testimony, Alvarez agreed to leave the van where it was until Monday, May 16. There was testimony by Berrios, Daniel Marrero, and William Rolon Rivera, all employees of Bayamon, and all of whom I credit as testifying candidly, establishing that on the morning of Monday, May 16, three or more persons came to the Bayamon lot in a car. The persons were identified through testimony as including Frankie Caban, Montesino, and an assistant mechanic at Gayley. Marrero clearly identified "Chiqui" as Montesino, having seen him testify and heard him identify himself in a related court proceeding. It was indicated by this group that a van had been moved out of the Gayley premises and that they believed it had been moved by Bayamon. While Montesino sat in the car, the hoods of the trucks were checked by the visitors to determine which if any were still warm. According to Marrero, whom I credit, Chiqui said, "Come on, let's go; what we have to do is set fire to the trucks." I am satisfied from the testimony of Marrero and his demeanor while testifying that Marrero was referring to Montesino when he used the nickname "Chiqui." Later that morning Caban and others returned to Bayamon and discussed the matter of the moving of the truck from Gayley with Alvarez. Alvarez denied moving it but made it clear that to keep his business with Gayley he would provide the service required. The next morning a Bayamon tractor to which was attached a flat bed containing Gayley material was found burned. Guzman, a Gayley employee, testified credibly that on or about May 16 Chiqui asked Guzman, who was then picketing, to take him to Bayamon. Chiqui directed Guzman to the Bayamon lot where Chiqui got out, dispensed the liquid contents of a paper bag inside the cabin of a truck, struck two matches, threw them inside the cabin, and started a fire. Chiqui then jumped in the car and they departed. I am satisfied from credible testimony of record that the "Chiqui" referred to was Montesino. The record also establishes that a man's shoe was found at the scene of the fire. There was testimony that Montesino left the scene minus a shoe. I am convinced and find that Caban and Montesino went to the Bayamon premises with others, as part of the overall pattern of the Respondent Union to interfere with and coerce Bayamon and to discontinue deliveries to and from Gayley, and that Montesino, after threatening to do so in the presence of Caban, returned at night with striker Guzman and set fire to a Bayamon tractor. I find this conduct concerning which the Respondent Union had knowledge and concerning which it took no action effectively to stop, disavow, or disclaim to be a violation of Section 8(b)(1)(A) of the Act. Local 3, International Brotherhood of Electrical Workers, AFL-CIO (New Power Wire and Electric Corp.), 144 NLRB 1089. The testimony of Jorge Gomez Sanchez established that his son went to work for Gayley on May 10, 1966, the day the strike began, that on or about May 20, 1966, Victor Fonseca came to his home with several others and persuaded Sanchez to drive with them to the Gayley plant for the purpose of persuading his son to leave the plant and stop working for Gayley during the strike. From Sanchez' testimony, which I credit, I am convinced that as a result of his discussion with Fonseca and because of the statements made by Fonseca he was concerned for the physical safety of his son and was in fact coerced into going with the strikers and persuading his son to leave the factory. The actions of Fonseca and the other strikers in intimidating and coercing Sanchez and through Sanchez coercing his son, were a continuing part of the overall pattern of the Respondent Union in the conduct of its strike and picketing activities and I find it to be a violation of Section 8(b)(1)(A) of the Act. 295-269 0-69-30 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The record also contains testimony by Fernandini, who was in charge of the security guards at Gayley, concerning two incidents occurring around May 20, 1966, in which Merced threatened him, threatened to break his face in two, and stated that he was going to go after the patrols; that Merced, angered over the introduction of new employees into the plant after the strike was under way, threatened, if these employees were not taken out by Gayley, to stop and search all cars and physically to take out such employees to stop them from entering the plant, and that if such employees were carried in patrol cars to break up these patrol cars. I credit the testimony of Fernandini and find these threats to be a violation of Section 8(b)(1)(A) of the Act. William Herrera, an independent trucker, testified that he and another driver made a delivery to Gayley Rico on May 21, 1966, at which time Merced jumped on their truck thereby causing Herrera to stop the truck and preventing him from entering the plant until the police intervened. I credit Herrera's testimony and find the conduct of Merced to be a violation of Section 8(b)(1)(A) of the Act. Testimony of record establishes that Gonzalez, a Gayley supervisor, had his car parked on May 13 on Gayley property in the back of the plant, discovered that his windshield had been smashed, and found stones on the car hood. Testimony by German Laurean, a Gayley employee and striker, whom I credit, established that on May 13 in the afternoon Merced stated to a group that he had "broken the glass of Tony Gonzalez." I find this to be a violation of Section 8(b)(1)(A) of the Act. Based on careful analysis of the record in this case and on my observation of the demeanor of the witnesses as they testified, I am convinced and find that each of the incidents alleged in the complaint with the exception of the stoning of Cintron's house by Montesino and others occurred as alleged and that each of them is a violation of Section 8(b)(1)(A) of the Act. I am also convinced that the Respondent Union herein with the beginning of the strike on May 10, 1966, embarked on a course of conduct at the Gayley plant, and away from the Gayley plant, which was part of an overall pattern including the carrying of sticks and clubs by pickets, the damaging of property by fire and otherwise, and the use of coercion and intimidation by force and threats, all for the purpose of intimidating and coercing employees of the Charging Parties herein in the exercise of rights protected by Section 7 of the Act. The Respondent Union, which instigated and fostered these acts of misconduct, did nothing effectively to stop, disavow, or disclaim them. I find, therefore, that in its totality this conduct clearly violates Section ft)(1)(A) of the Act. B. The Responsibility of the Respondent Union It is alleged in the complaint, as amended, that at all times material Arturo Figueroa, president of the Respondent Union, Juan Francisco Merced, Francisco Rivera Montesino, Vicor Fonseca, Franklin Caban Ortiz, and Gabriel ')Imo Rodriquez were agents of the Respondent Union and that the Respondent Union is responsible for the conduct of said agents under the provisions of Section 2(13) of the Act. The complaint further alleges that the strike and picketing activities herein were sponsored and supported by the Respondent Union and that the activities of the strikers and picketers were under the direction and control of the officers and agents of the Respondent Union. The Respondent Union admits that Figueroa is the president of the Respondent Union but denies the allegations -concerning the agency status of all the named individuals and denies that the activities of the strikers and picketers were under the direction and control of the alleged officers and agents. According to the testimony of Gabriel Olmo Rodriquez, who identified himself as secretary-treasurer of the Respondent Union, during the course of the strike when he was present at the picket line he made sure that the pickets conducted themselves in accordance with union policy, that if the pickets came and asked questions as to where and how they could picket he told them, that while he was not instructed to do this by Figueroa he nevertheless did it as he knew it was his duty as a union official. Rodriquez also testified that whenever he left the scene of the picketing he made sure somebody responsible was left in charge, usually Merced and Caban, and gave them instructions. Rodriquez also testified that he made sure that the supplying of food and other items went smoothly. Caban testified that he was in charge of the pickets, sometimes during the day, other times at night, and that Merced generally directed during the day. Caban stated that Figueroa was sometimes in the vicinity of the pickets, would inquire as to the situation, and would stay and talk to the pickets; and that Figueroa would ask him (Caban) how the conduct of the picketing was going. There is ample credible testimony of record to establish and I find that the Respondent Union sponsored and was in charge of strike and picket line activities, that Figueroa kept in touch with the situation by going regularly to the scene, talking with picket directors and pickets, and inquiring and receiving status reports from those in charge. It is clear that Union Officer Gabriel Olmo Rodriquez was similarly in charge of the strike and picket activities, left Merced, Caban, and sometimes others in charge when he was not there, kept in touch, and advised on the situation. The record clearly indicates that both Figueroa and Rodriquez were conspicuous in and about the picket area and on the picket line directing the picket activities. I find therefore that Figueroa and Rodriquez were officers and agents of the Respondent Union for the broad purpose of directing -ind conducting strike, picket, and related activity, and that the Respondent Union is responsible for their conduct and for the conduct of others which occurred in their presence, or outside their presence, which was an integral part of the pattern of conduct which they established and encouraged and which they fostered and instigated , and concerning which they did not take steps reasonably calculated effectively to stop, disavow, or disclaim. Local 888 U.A.W. (Miami Plating Co.), 144 NLRB 897. The record also amply establishes that Juan Francisco Merced and Franklin Caban were members of the organizing committee for the Respondent Union, were active in the picket area and on the picket line, and that they actively directed and controlled picketing activity, with the knowledge, direction, and consent of Figueroa and Rodriquez. While the Respondent Union contends that the agency status of Merced and Caban was limited to organizing activities , I am persuaded by substantial credible evidence on the record as a whole, and I find that under the circumstances Merced and Caban were agents of the Respondent Union not only for the purposes of the organizing committee but for the broad purpose of directing and conducting strike and picketing activities which are the subject of the charges herein and that the CONGRESO DE UNIONES INDUSTRIALES DE! PUERTO RICO 453 Respondent Union is responsible for their conduct to the same extent as in the case of Figueroa and Rodriquez. As for Francisco Montesino, while he was not an employee of either of the Charging Parties herein, there is substantial testimony of record to establish that he played a role at the strike and picket scene well beyond that of an ordinary picket. I am persuaded that he was there with the knowledge and consent of Union President Figueroa, to help with the strike and picket activities, counseled and advised with Merced and Caban when they were in charge of activities, did himself direct the pickets on occasion, and was clearly observed on the scene communicating with union chiefs Figueroa and Rodriquez. His activities were not disclaimed or disavowed by the Respondent Union nor were steps taken to effectively stop his activities. While Montesino and others testified that his presence in the strike and picket area was merely because he had a girl friend in the area, I simply do not credit this testimony. Similarly, as to Victor Fonseca there is ample testimony of record to establish that he was a conspicuous participant in strike and picket activities working closely with Merced and Caban in carrying out strike and picket objectives. Under the circumstances, I am convinced and find that Montesino and Fonseca were agents of the Respondent Union for the purpose of conducting strike and picket and related activities and that the Respondent Union is responsible for their conduct within this scope regardless of whether their specific acts were actually authorized or subsequently ratified. United Furniture Workers of America, Local 309, C.I.O., (Smith Cabinet Manufacturing Company), 81 NLRB 886. Assuming, arguendo, that Fonseca and Montesino were not agents of the Respondent Union there is ample credible testimony of record to establish the fact that they were active in the strike and picket area, that both were observed on the picket line in the conduct of picket activities under circumstances indicating knowledge by the Respondent Union through its agents . Accordingly, I would apply the principle that the basis of the Respondent Union's responsibility for improper conduct by pickets is based on its instigation or fostering of such conduct. To the extent that the acts and conduct of Fonseca and Montesino are included hereinabove in the findings of violations of Section 8(b)(1)(A) by the Respondent Union, I find that such conduct conformed to the pattern established by the Respondent Union through its officers and agents, was not the conduct of these persons as individuals but was instigated or fostered by the Respondent Union through its agents Figueroa, Rodriquez, Merced, and Caban and accordingly I hold the Respondent Union responsible therefor. Local No. 888, U.A.W., supra. In any event, I would hold the Respondent Union responsible for acts of misconduct and violence by the strikers based on the fact that the Respondent Union which authorized the strike knew of the acts of misconduct and violence but took no steps reasonably calculated effectively to stop such acts. Teamsters Local 783, International Brotherhood of Teamsters, etc. (Coca-Cola Bottling Company of Louisville), 160 NLRB 1776. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Union set out in section III, above, occurring in connection with the opera- tions of the Charging Parties described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstruct- ing commerce and the free flow of commerce. Upon the foregoing findings of fact and upon the entire record herein, I make the following: CONCLUSIONS OF LAW (1) The Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. (2) By assaulting and threatening to commit bodily harm to, and damage to the property of, supervisors, employees, and others; by intimidating supervisors, employees, and others; by picketing with clubs and sticks; by mass picketing and blocking tactics; by physically preventing supervisors, employees, and others from entering the struck premises; by setting fire to the truck of a transport service attempting to continue service during the strike; by threatening and coercing the father of an employee in order to prevent the employee from working during the strike; by threatening plant guards with bodily harm; by breaking the windshield of an employee's car; and by encouraging , fostering, instigating, and embarking on a course and pattern of conduct including the foregoing conduct; and by taking no steps effectively to stop, disclaim , or disavow such conduct, the Respondent Union has restrained and coerced employees of the Charging Parties herein in the exercise of their rights guaranteed by Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(b)(1)(A) of the Act. (3) The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. (4) That portion of the complaint alleging the stoning and breaking of windows of the house of an employee by Montesino and others is not established by substantial evidence and is dismissed. THE REMEDY The coercive and illegal conduct found herein, including threats, violence, and destruction, requires that the Respondent Union be ordered to cease and desist from this type of conduct in any further strike and picketing activities connected with the Charging Parties herein. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, it is hereby recommended that the Respondent, Congreso De Uniones, Industriales De Puerto Rico, Ind., its officers , agents, and representatives, shall: 1. Cease and desist from restraining and coercing employees of the Charging Parties herein by assaulting and threatening to commit bodily harm to, and damage to the property of, supervisors, employees, and others; picketing with clubs and sticks , mass picketing and blocking tactics; physically preventing supervisors, employees, and others from entering the struck premises; setting fire to the truck of the transport service attempting to continue service during the strike; threatening and coercing the father of an employee in order to prevent the employees from working during the strike; threatening plant guards with bodily harm; breaking the windshield of 454 DECISIONS OF NATIONAL an employee 's car; or in any other manner restraining or coercing employees of the Charging Parties in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Post at the offices and meeting halls of the Respondent Union copies of the attached notice marked "Appendix . " I Copies of said notice , to be furnished by the Regional Director for Region 24, after being duly signed by the Respondent 's representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including places where notices, to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered , defaced, or covered by any other material. (b) Mail signed copies of the notice to the Regional Director for Region 24 for posting , the Charging Parties willing, at all locations where notices to their employees are customarily posted. (c) Notify the Regional Director for Region 24, in writing, within 20 days of the receipt of this Decision, what steps the Respondent has taken to comply herewith.2 ' In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Oidei is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " 2 In the event that this Recommended Order is adopted by the Board, this piovision shall be modified to read "Notify the Regional Director for Region 24, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE To ALL MEMBERS OF CONGRESO DE UNIONES INDUSTRIALES DE PUERTO RICO, INC. AND To EMPLOYEES OF GAYLEY RICO COMPANY AND BAYAMON TRANSPORT SERVICE Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT restrain or coerce employees of Gayley Rico Company and Bayamon Transport Service in the exercise of employee's rights guaranteed in Section 7 of the Act (including the right to refrain from joining or assisting our union) by assaulting and threatening to commit bodily harm to, and damage to the property of, supervisors, employees, and others; picketing with clubs and sticks, mass picketing and blocking tactics; physically preventing supervisors, employees, and others from entering the struck premises; setting fire to the truck of a transport service attempting to continue service during the strike; threatening and coercing the father of an employee in order to prevent the employee from working during the strike; threatening plant guards with bodily harm; breaking the windshield of an employee's car. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of the LABOR RELATIONS BOARD rights guaranteed by Section 7 of the National Labor Relations Act. CONGRESO DE UNIONES INDUSTRIALES DE PUERTO RICO, INC. (Labor Organization) Dated By (Representative ) (Title) GAYLEY RICO COMPANY (Employer) Dated By (Representative ) (Title) BAYAMON TRANSPORT SERVICE (Employer) Dated By (Representative) (Title) 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. If members and employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, P.O. Box 11007, Fernandez Juncos Station, Santurce, Puerto Rico 00910, Telephone 724-7171, Extension 123. United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local No. 481, AFL-CIO and Northwest Natural Gas Company and International Chemical Workers Union, Local No. 133. Case 36-CD-38. March 17, 1967 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS BROWN, JENKINS, AND ZAGORIA This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended , following a charge filed by Northwest Natural Gas Company, herein called the Company , alleging that United Association of Journeyn en and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local No. 481 , AFL-CIO, herein called the Plumbers , violated Section 8(b)(4)(D) of the Act . A duly scheduled hearing was held before Patrick H . Walker, Hearing Officer, on September 26, 1966. All parties appearing were afforded full opportunity to be heard, to examine and cross-examine witnesses , and to adduce evidence bearing upon the issues. The rulings of the Hearing Officer made at the hearing are free from prejudicial 163 NLRB No. 56 Copy with citationCopy as parenthetical citation