Crown Cork De Puerto Rico, Inc.

National Labor Relations Board - Board Decisions

Jul 19, 1979

243 N.L.R.B. 569 (N.L.R.B. 1979)

CROWN ('ORK DE Pt RI() RICO. IN('.
Crown Cork de Puerto Rico, Inc. and Union Indepen-
diente de Trabajadores de la Crown Cork and
S. . U. de Puerto Rico, Caribe Y Latinoamerica a/s
S. . U. of North America, AFL-CIO, Party to the
Contract
S. . U. de Puerto Rico, Caribe Y Latinomnerica, a/s
S. I. IU. of North America, AFI.-CIO and Union
Independiente de Trabajadores de la Crown Cork
Crown Cork de Puerto Rico, Inc. and Ulnion Indepen-
diente de Trabajadores de la Crown Cork, Peti-
tioner. Cases 24-CA-3787. 24 CA 3820. 24 ('B
980, and 24 RC-5775
July 19. 1979
DECISION AND ORDER REMANDING
PROCEEDING TO ADMINISTRATIVE LAW
JUDGE
BY CHAIRMAN FANNING ANI) MlIMB1 RS JNKINS
AND PNIIttI()
On February 7, 1979, Administrative law Judge
Irwin H. Socoloff issued his Decision in this proceed-
ing.' Thereafter, Respondent Employer and Respon-
dent Union filed exceptions and supporting brief.
and the Charging Party Union filed further excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the Deci-
sion in light of the exceptions and briefs and has de-
cided to remand this case to the Administrative Law
Judge for further credibility determinations and the
issuance of a Supplemental Decision.
In his Decision, the Administrative Law Judge
found that Respondent Employer (hereinafter called
Respondent) was responsible for various acts in viola-
tion of Section 8(a)(3), (2), and (I) of the Act. and
that Respondent Union had violated Section 8(b)(2)
and (I)(A) of the Act. Included among these viola-
tions was the finding that the discharge of Heriberto
Padua on September 24, 1976.2 was based soley on
union considerations and therefore violative of' Sec-
tion 8(a)(3). The legality of this discharge is related to
several other issues litigated before the Administra-
tive Law Judge, including the status of' the strike that
commenced on the afternoon of September 24 which
S . U. de Puerto Rico. Carile I.llnoamerlc.a a S I 1ot North
Amenca AFI. (10. as the Intervenor n the representatllon proCeeding.
Case 24 R( 5775
2 All dates are 1976 unless therwlse inLdicalted
was ifund b the Administrative l.av Judge to have
been an unfair labor practice strike froin its inception,
the strikers' entitlement to recall upon application
which was i'ound bh the Administratie La.v Judge to
be applicable to those strikers when the president ofl
the Charging Part 3 Union requested reinstatement on
their behalt' on October 22. and the eligibility oft the
striker replacements to vote in the election ccnducted
on October 29 whose entitlement the Adininistrativ e
law Judge found to be without support based on the
prior events outlined above. While these findings with
respect to events which succeeded Padua's discharge
do not necessarily derive their sole support from the
status of Padua's discharge as other unfair labor prac-
tices were tound to have occurred before that date.
the series of events nevertheless establishes that the
legality of Padua's termination is an important ele-
ment in the General Counsel's arguments with re-
spect to these other events.
I'he record, however, reveals substantial conflicts
in the testimony with respect to what occurred during
the events which led to Padua's discharge, and also
re~xeals that the Administrative LaU Judge fitiled to
make credibilit\ resolutions to resole these conflicts.
The evidence presented hb Padua's supervisor. Jose
David Carrasquillo. indicates that Padua responded
to one of his instructions with obscene language and
that he threatened to tear the super, isor's head off if a
report was tiled. Carrasquillo urther testilied that he
wrote a report concerning this incident and submitted
the report to Plant Superintendent Francisco Gonza-
les. The General Counsel. on the other hand. called
three witnesses to the exchange between Carrasquillo
and Padua.' kwhose testimon does not indicate that
Padua threatened ('arrasquillo or was otherwise dis-
respect lu l.
T'he record shows that Respondent utilized this
written report submitted by Carrasquillo as the basis
for Respondent's conclusion that Padua had been in-
subordinate. had shown a lack of respect and had
threatened physical harlm to a supervisor.4 and that
his actions warranted his immediate termination.
However, the Administrative LaA. Judge. bh not
making credibilit findings with respect to the event
relerred to in the written report, has precluded a inld-
ing w ith respect to the merits of (Carrasquillo's accu-
sations against Padua. The Administrative l.aw
Judge. instead, based his findings on the manner with
,ahich Respondent reacted to ('arrasquillo's report.
'I he,e three it ne-scx ertrc Pdua. Miguel ( arra,quill. ain I us Polar
4 tiourth tlexx t, thls c'eni. ( ilhcrIo or Robcr. Roidrique,. did nt res-
It
'(iorl ilcs lelllied Ihat he pp.ke u slh Rcsdriquc .hl uIl the eich.ange he-
t, ee (rrasquillo n P'.i .ua, ht thai R..irlquiei did not stite .san il ore
than. Ih.i he he0rd in .IruliIIti hci.eie i lhrn hii dd ni h1c.lr vhaI -u'
sp}kci
243 NLRB No. 112
c69
DECISIONS OF NATIONAL ILABOR RELATIONS BOARD)
Whether Padua misconducted himself as Carra-
squillo asserted is necessarily material to any evalu-
ation and review of the reason Respondent dis-
charged Padua. We therefore remand the record to
the Administrative Law Judge for credibility findings
with respect to the Padua-Carrasquillo incident on
September 23. Should it be found that Padua engaged
in the misconduct attributed to him by Carrasquillo,
then further consideration must be given to the issue
of whether Respondent's treatment of Padua as a re-
sult of this misconduct was discriminatory in the light
of past practice. On the other hand, should it be
found that Padua did not engage in the misconduct as
stated in the report prepared by Carrasquillo and re-
lied on by Respondent, consideration must be given
to whether the preparation of the report was moti-
vated by unlawful factors, as well as the allegation of
disparate treatment with respect to the handling of
this disciplinary action taken against Padua.
In view of the importance of the conclusions with
respect to Padua's discharge as it relates to several
other issues litigated in this proceeding and outlined
above, we shall refrain from ruling on the merits of
the exceptions taken by the various parties to the re-
maining findings and conclusions of the Administra-
tive Law Judge, pending the preparation of the Sup-
plemental Decision ordered herein.
ORDER
It is hereby ordered that this case be remanded to
the Administrative Law Judge tor the purpose of
making credibility determinations regarding the testi-
mony of the witness referred to herein.
Il IS FURIilIR ()RI)FRFI) that the Administrative
Law Judge shall prepare and serve on the parties a
Supplemental Decision containing credibility deter-
minations, findings of fact. conclusions of law, and
recommendations to the Board, and that following
service of such Supplemental Decision on the parties,
the provisions of Section 102.45 of the Board's Rules
and Regulations, Series 8, as amended, shall be appli-
cable.
570