De Diego Taxi Cabs, Inc.

National Labor Relations Board - Board Decisions

Feb 1, 1954

107 N.L.R.B. 1026 (N.L.R.B. 1954)

1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
snappers , but excluding office clerical employees , watchmen and
other guards , nonworking snappers , and all other supervisors as
defined in the Act constitute a unit appropriate for the purposes
of collective bargaining withirithe meaning of Section 9 ( b) of the
Act.
[Text of Direction of Election omitted from publication.]
DE DIEGO TAXI CABS, INC. and CAPITULO DE CHOFERES
DE SAN JUAN, SINDICATO DE TRANSPORTE DE PUERTO
RICO TWUA-CIO. Case No. 24-CA-375. February 1, 1954
DECISION AND ORDER
On September 29, 1953, Trial Examiner Stephen S. Bean
is sued his Intermediate Report in the above -entitled proceeding,
finding that the Respondent had engaged in and was engaging in
certain unfair labor practices , as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respond-
ent and the Intervenors filed exceptions to the Intermediate
Report and supporting briefs.
The Board has reviewed the rulings made by the Trial
Examiner at the bearing, and finds that no prejudicial error
was committed. The rulings are hereby affirmed. The Board
has considered the Intermediate Report, the exceptions and
briefs, and the entire record in the case, and hereby adopts
the Trial Examiner's findings, conclusions, and recommenda-
tions.'
ORDER
Upon the entire record in the case, and pursuant to Section
10 (c) of the National Labor Relations Act, the National
Labor Relations Board hereby orders that the Respondent,
De Diego Taxi Cabs, Inc., Santurce, Puerto Rico, and its
officers , agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Capitulo de Choferes de
San Juan, or any other labor organization of its employees,
[Chairman Farmer and Member Rodgers , while agreeing to assert jurisdiction in this
case, are not thereby to be taken as adopting the Board ' s past jurisdictional plan as a
permanent policy.
In view of the finding that Santos was discharged in violation of Section 8 (a) (3), the Trial
Examiner properly found that the discharge of a union negotiator in the midst of contract
negotiations was calculated to undermine the position of the Union as bargaining representa-
tive and to be treated as an element in determining that the Respondent was not bargaining in
good faith We do not adopt the Trial Examiner's suggestion that this would be true whether or
not the discharge violated Section 8 (a) (3).
107 NLRB No. 215.
DE DIEGO TAXI CABS, INC. 1027
by discriminating in regard to their hire or tenure of employ-
ment or any term or condition of their employment.
(b) Refusing to bargain collectively with Capitulo de Choferes
de San Juan as the exclusive representative of all its employees
in the appropriate unit with respect to rates of pay, wages,
hours of employment, or other conditions of employment.
(c) Making promises of benefits and threats of reprisals
to employees for refraining from or engaging in union activities,
requesting their attendance at union meetings for the purpose
of reporting their happenings, encouraging , assisting and
supporting the circulation of a petition to decertify the
Union, warning and menacing employees with the prospect
of the cessation or curtailment of operations and the discharge
of union supporters if union activities should continue, and
intervening in procuring employees' attendance and directing
their action at union meetings.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization, to form, join, or assist Capitulo de Choferes
de San Juan, or any other labor organization, to bargain
collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or
to refrain from any or all such activities except to the extent
that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employ-
ment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board
finds will effectuate the policies of the Act.
(a) Upon request, bargain collectively with Capitulo de
Choferes de San Juan as the exclusive representative of all
employees in the appropriate unit, and embody any understanding
zeached in a signed agreement.
(b) Offer Vicente Santos Ramirez immediate and full rein-
statement to his former or a substantially equivalent position
without prejudice to his seniority or other rights and privileges,
and make him whole for any loss of pay he may have suffered
by reason of the Respondent's discrimination against him,
as provided in the section of the Intermediate Report entitled
"The Remedy."
(c) Upon request make available to the Board or its agents
for examination and copying all payroll records , social-
security payment records, timecards, personnel records and
reports, and all other records necessary to analyze the amounts
of back pay due and the rights of employment under the terms
of this Order.
(d) Post at its office at Santurce, Puerto Rico, copies of the
notice attached to the Intermediate Report marked "Appen-
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dix."2 Copies of said notice, to be furnished by the Regional
Director for the Twenty-fourth Region, shall, after being
duly signed by Respondent's representative, be posted by
the Respondent immediately upon receipt thereof and maintained
by it for sixty (60) consecutive days thereafter in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notice is not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director for the Twenty-fourth
Region in writing within ten (10) days from the date of this
Order what steps the Respondent has taken to comply here-
with.
2 Said notice is hereby amended by deleting the words "The Recommendations of a Trial
Examiner," and substituting in lieu thereof the words "A Decision and Order."
In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order," the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge and two amended charges duly filed by Capinilo de Choferes de San Juan,
Sindicato de Transporte de Puerto Rico TWUA-CIO, herein called the Union , the General
Counsel of the National Labor Relations Board, by the Regional Director for the Twenty -fourth
Region ( Puerto Rico) issued a complaint dated April 22, 1953 , against De Diego Taxi Cabs,
Inc., herein referred to as Respondent , alleging that Respondent had engaged in unfair labor
practices within the meaning of Section 8 (a) (1), (3 ), and (5) and Section 2 (6) and (7) of the
National Labor Relations Act, 61 Stat . 136, herein called the Act. Copies of the charges and
the complaint were duly served upon Respondent and the Union.
With respect to the unfair labor practices the complaint alleged that : (a) Since on or about
July 1, 1952, Respondent has failed and refused upon request to bargain in good faith with
the Union concerning wages , hours , terms and conditions of employment of the Respond-
ent's employees in an appropriate bargainingunit , by engaging in the following acts : ( 1) Refus-
ing upon request to discuss grievances of employees of the Respondent with representatives
of the Union as the collective -bargaining agent of Respondent 's employees ; (2) engaging in
dilatory tactics during the course of collective -bargaining negotiations to avoid executing
a collective-bargaining agreement , the terms of which were agreed upon and settled with the
Union on or about October 15 , 1952; (3) raising new issues and shifting its position on issues
already agreed upon , during collective -bargaining conferences and vacillating on commitments
to execute a collective -bargaining agreement , the terms and conditions of which had been
agreed upon and settled with the Union on or about October 15, 1952; (4) making promises
of benefit and threats of reprisals to its employees while collective-bargaining conferences
were in progress with the Union, which weredesigned to undermine the prestige and authority
of the Union as the collective-bargaining agent of the Respondent 's employees ; (5) requiring
the Union to submit new proposals and to negotiate the terms of a collective -bargaining
agreement, the terms of which had been agreed upon and settled with the Union on or about
October 15,1952; (6) repudiating agreements made during the course of collective -bargaining
conferences concerning the retroactivity date of a collective -bargaining agreement , the terms
and conditions of which had been agreed upon and settled with the Union on or about October
15, 1952; (7) causing unreasonable delays in meeting commitments to attend bargaining
conferences for the inspection and approval of drafts of a collective -bargaining agreement,
the terms of which had been agreed upon and settled with the Union on or about October 15,
1952; ( 8) making promises of benefit to, and threats of reprisals against, employees while
collective -bargaining conferences were in progress in order to induce said employees to
DE DIEGO TAXI CABS, INC. 10Z9
withdraw their support of the Union's economic demands being made at.said collective-bargain-
ing conferences; (9) engaging in constant assaults and threats of assaults against members
of the Union who sought to present their grievances to Respondent while collective-bargaining
conferences were in progress in order to demonstrate that the Union did not possess the power
or authority to protect said members of theUnion; (10) encouraging, assisting, and supporting
a group of its employees to circulate a petition for decertification of the Union as the col-
lective-bargaining agent of its employees while it was engaged in collective-bargaining
negotiations with the Union; (11) discharging an officer and member of the Union's negotiating
committee while collective-bargaining conferences were in progress because of his representa-
tion of and concerted activities on behalf of the employees of Respondent, thereby undermining
the prestige and authority of the Union as the collective-bargaining agent of Respondent's
employees; (12) granting benefits to its employees without consulting with or advising the
Union as the collective-bargaining agent of its employees; and (13) advising its employees
that it would not and could not make an agreement with the Union while certain of its officers
and representatives were selected to conduct collective-bargaining negotiations.
The complaint further alleged that: (b) Respondent, by its officers, agents, and supervisors
has since on or about July 1, 1952, and continuously down to and including the date of issuance
of the complaint, interfered with, restrained and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act by the following conduct: (1) Assaulting and
threatening to assault its employees who sought to present grievances concerning their
working conditions; (2) making promises of benefit and threats of reprisals to its employees
in order to induce them to withdraw their support of the economic demands being made by
the Union as their collective -bargaining representative while collective-bargaining conferences
were in progress; (3) requesting certain employees to attend meetings of the Union called
while collective-bargaining conferences were in progress and to report concerning the
attitude of the officers and members of the Union toward proposals made by Respondent
to the Union during the course of such conference; (4) keeping the meetings called by the Union
during the course of collective-ba rgaining conferences under surveillance in order to determine
the attitude of the officers and members of the Union toward proposals made by Respondent
at said bargaining conferences; (5) encouraging, assisting, and supporting the circulation,
amongst its employees, of a petition to decertify the Union as the collective-bargaining agent
of Respondent's employees while it was engaged in bargaining negotiations with the Union;
(6) threatening its employees that it would curtail its operations and lay off those employees
who continued to support the Union's economic demands; (7) urging its employees to attend
a meeting called by the Union during the course of collective-bargaining negotiations, and by
promises of benefit and threats of reprisal inducing them to favor the acceptance at said
meeting of certain proposals made by Respondent to the Union during bargaining conferences
and to abandon their support of the Union's economic demands.
The complaint still further alleged that: (c) On or about October 12, 1952, Respondent
discharged and thereafter refused to reinstate employee Vicente Santos because of his
representation of and concerted activities on behalf of Respondent's employees for the purpose
of collective-bargaining concerning the wages, hours, and working conditions of said employees
or for their mutual aid or protection.
Respondent filed an answer admitting certain allegations concerning its business operations
but denying the commission of any unfair labor practices. By way of "special defenses"
Respondent alleged that the Union has failed and refused on request to bargain in good faith
with Respondent by: (1) Proceeding to alter, change, and amend the clauses of the draft of the
collective-bargaining agreement which Respondent and the Union were discussing and
attempting to deceive Respondent by submitting as the collective-bargaining agreement under
discussion a completely different draft containing clauses, commitments, and conclusions
varying from those agreed upon; (2) demanding that Respondent sign a collective-bargaining
agreement in January 1953, retroactive to August 15, 1952, containing clauses which would
oblige Respondent to pay to the Union checkoff amounts from employees' wages as of August 1,
1952, without Respondent having previously obtained the consent of its employees to make
such deductions; (3) while discussing the collective-bargaining agreement, giving Respondent
a draft which contained completely different clauses from those which were originally agreed
upon and 'pretending to discuss said collective-bargaining agreement with three different
drafts each containing different conditions and clauses, thus unabling Respondent to determine
with precision the demands that the Union required for the purpose of negotiating a collective-
bargaining agreement; and (4) insulting and offending both the representative of Respondent
and its attorney and arguing in such manner at different meetings as to make it impossible
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for Respondent to present its objections to the draft of the collective bargaining submitted
by the Union.
Pursuant to notice, a hearing was held before me at Santurce, Puerto Rico, from May 26
through June 3, 1953.
On May 26, before any evidence was taken, Attorney Paul Stawmski made an oral motion
for permission to intervene in behalf of a number of employees of Respondent or members
of the Union whom it was represented by counsel had filed on November 21, 1952, a commu-
nication which may be construed to be a petition for decertification of the Union, which
petition was later withdrawn. Mr. Stawinski was unable to say whether or not it was to be
contended that the Union was not the bargaining representative of the employees at the time
the complaint was filed or to what extent the employees whom he stated he represented
were parties in interest. Since it did not appear to me that the representations of counsel
formed a sufficient basis for the allowance of the motion to intervene, I denied it, reserving,
however, leave to renew same in theeventthat counsel should be able to show that facts which
might later appear in evidence, warranted its further consideration.
On June 1, after the evidence of the secretary-treasurer of Respondent had been heard and
while the president of the Union was testifying, Mr. Stawinski renewed the motion. In support
of the motion, counsel represented-that the Union's certification dated back several years
and that both the petition for decertification and a subsequent notice to the Board on April
23, 1953, signed by some 68 employees, were in actuality revocations of the authority of
the Union as the employees' bargaining representative, not requiring Board action. On the
score of these representations and contentions, I deemed it appropriate to allow the question
to be litigated and, over the objections of the General Counsel, allowed the renewed motion
for permission to. intervene in order that the employees whom it was stated were desirous
of showing they had not been represented by the Union after April 23, 1953, might have an
opportunity to present evidence of the circumstances under which their signatures to the
petitions, or claimed revocations, were obtained and whether or not the signatures were
authentic. Thereafter the intervenors did not see fit to offer the testimony of any of the
purported signatories to the petition or claimed revocation and the only testimony given by
any of the signers came from the lips of employees who were called by the General Counsel.
As will be subsequently pointed out in greater detail, these witnesses testified to the effect
that on November 21, 1952, a paper was prepared by Respondent and circulated on the orders
of Respondent, by Manuel (Manolin) Parodi Reinosa, a rival of the Union's president and that
they signed it and the April 23,1953, document, not because they desired to revoke the Union's
authority but because of their fear of the consequences of not signing. On this record the
presumption thattheUnion at all materialtimes has been, under its certificate, the representa-
tive for the purposes of collective bargaining of the majority of the employees of Respondent
in an appropriate unit comprising all taxi drivers of Respondent excluding executives, guards,
and supervisors as defined in the Act, has not been rebutted.
At the hearing, all parties were represented by counsel, were afforded full opportunity
to be heard, to examine and cross-examine witnesses, to introduce evidence bearing on the
issues, to argue orally upon the record, and to file briefs and proposed findings. The General
Counsel made an oral argument. Counsel for Respondent filed a brief on July 23, 1953. Counsel
for the Intervenors neither argued nor filed a brief. Upon the entire record in the case, and
from my observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
It is admitted that De Diego Taxi Cabs, Inc., is and at all material times has been, a
corporation duly organized and existing under the laws of the Commonwealth of Puerto Rico,
with its principal office and place of business located in Santurce, Puerto Rico, where it is
engaged in the business of operatinga fleet of approximately 40 taxicabs for the transportation
of passengers in and around the metropolitan area of the city of San Juan and to all parts of
the Island of Puerto Rico. During the course and conduct of its business operations, Respondent
transports passengers to and from airport terminals where passengers arrive and leave for
various States of the United States and foreign countries and also transports passengers to
and from various military installations of the United States Government located on the Island
of Puerto Rico. I find that Respondent is engaged in commerce within the meaning of Section
2 (6) of the Act.
DE DIEGO TAXI CABS, INC. 1031
H. THE LABOR ORGANIZATION INVOLVED
Capitulo de Choferes de San Juan is a labor organization within the meaning of Section 2 (5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Preliminary summary
In order that subsequent various detailed findings, some of which are but remotely related
to one another , may appear in their proper perspective , it seems helpful briefly to outline
the more salient aspects of this case.
In the summer of 1952 the Union started bargaining with Respondent and 4 other taxicab
companies whose employees it represented and whose contracts with the Union were to expire
on August 1 of that year. The 2 principal spokesmen for the companies were Pedro Laboy,
secretary-treasurer of Respondent and Cesar B. Matos, secretary-treasurer of Arrow Taxi
Cabs Company, herein called Arrow. Two or three days before August 1, Respondent discharged
employee Abraham Pagan. On July 31 theUnionwrote Respondent requesting that Pagan's case
be taken up under the grievance procedure provided for in the contract which was expiring that
day. Respondent declined the request by denying that Pagan had been discharged or that if he
had been discharged it was obliged to consider the case as a grievance matter because the
contract had expired by the time it received the Union's letter.
Several bargaining conferences held in July and August resulted in an agreement between
the Union and the five companies on all matters except wages and hours and the provisions
for a hospital plan and a Christmas bonus. On these matters, an impasse was reached and
recourse was had to the assistance of Mr. Rodriguez Plata of the Insular Mediation and
Conciliation Service. The Union's original wage demand was $4.50 a day. By September it
had yielded down to $ 3.20, in an effort to induce the companies to agree to an acceptable
hospitalization plan and bonus payment. Three dollars and twenty cents was the daily wage
provided for in the contract which had expired on July 31 and the minimum amount required
by law. Near the end of September , 3 of the companies came to an understanding with the
Union and signed contracts. Respondent and Arrow, however, continued to disagree with the
Union respecting a hospital plan and Christmas bonus.
About October 15, a tentative agreement was reached between Respondent, Arrow, and
the Union . By arrangement , the Union drafted the final contract and submitted it to the
conciliator. Upon inspecting it, Respondent claimed the draft contained provisions differing
from those tentatively declared acceptable. Thereupon, the parties agreed that the contract
should be redrafted under the direction of the conciliator and in accordance with notations
he had made during the course of the conferences before him. This the conciliator did and
Arrow signed on November 28, 1952, the draft he prepared after some additions and corrections
had been made. Just about this time, the Board was notified by the previously referred to
letter or petition for decertification that the employees were not willing to accept the collec-
tive-bargaining agreement about to be signed, which Respondent says it was ready to sign
on November 25.
After this communication Respondent refrained from signing the contract . The Union
investigated the circumstances surrounding the preparation , signing, and sending of the
letter and subsequently it was withdrawn. Then, on January 9, 1953, the parties attended
a conference at the Board's Regional Office. Respondent 's counsel was then given a draft
proposal of a contract . During conferences thereafter Respondent objected to making the
bonus and checkoff provisions retroactive to the previous October on the grounds of lapse
of time and change in personnel of employees. The Union, to overcome this objection expressed
its willingness to advance the retroactivity of the checkoff payments to January 7, 1953, and
to waive any provision for a hospitalization plan and Christmas bonus payment, providing
Respondent would agree to pay a $4 daily wage. Respondent offered to pledge to pay a lump
sum of $500 to the Union in June 1953 in lieu of the Christmas bonus it had tentatively agreed
in October to pay to the employees individually. When the Union proposed the swapping off
of any bonus payment for the $4 a day the Company took the position that salaries had been
discussed for 3 months and that $ 3.20 was the amount that had been finally submitted to the
conciliator and that accordingly the entire contract would have to be completely renegotiated.
Thereupon the Union withdrew its $4-a-day suggestion and as an alternative proposed that
the contract tentatively agreed upon on October 15, 1952, should be consummated with an
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
additional clause providing that the new contract should remain in force until the next
collective-bargaining agreement to be discussed would be signed. Respondent rejected
this proposition.
On March 2, the Union wrote Respondent that although since October 15, 1952, it had
made several concessions by way of changes more favorable to Respondent than those
contained in the terms of the agreement which it considered both parties had accepted on
October 15, it had decided, inasmuch as Respondent "has not wanted to reach an agreement,
... to maintain unchanged in all its aspects the Agreement which was accepted by both
parties in the presence of Conciliator Rodriguez Plata on the above stated date. October 15,
1952."
In response to a notification on May 1, 1953 , from the Board 's Regional Office that the
Union was waiving any retroactive application of the operation of the checkoff and Christmas
bonus clauses, Respondent replied on May 5, 19 days before the commencement of this
hearing , by stating that it had received a letter signed by 68 employees that they "had
decided to maintain themselves free from" the Union and asking for advice as to whether
a collective-bargaining agreement would be void, should the Union be decertified as a
result of such letter. The Regional Director then administratively advised Respondent
that its obligation to bargain with the Union had not been affected by the employees ' purported
disaffection from the Union. On May l4theUnion received a letter of invitation from Respond-
ent to discuss an agreement on May 15. The Union replied requesting another date because
of the unavailability of its counsel on the 15th. The union president went to see Respondent
on this day, nonetheless . Respondent claimed that some of its chauffeurs had threatened to
strike if bargaining were renewed and for that reason it could not negotiate, but when i
the threat of strike had passed it would be in a position to resume discussions.
During the course of the bargaining conferences about October 12, 1952, Respondent
discharged employee Vicente Santos (Ramirez) who was the union delegate who on occasion
had taken up employee grievances with Respondent , in the performance of the obligations
of his position.
B. The particularized issues and their components
Now that we have surveyed the case in general, the time has come to consider with more
particularity the various issues as they have been broken down and joined, in the several
portions of the complaint and answer.
a. The refusal to bargain
(1) On or about July 28, 1952, Respondent discharged one of its chauffeurs, Abraham
Pagan. On July 31, August 14, and September 2 as well as by a number of telephone calls
made in the meantime by its president , Angel Figueroa, the Union requested Respondent
to process Pagan's case as a grievance in the manner provided by the collective -bargaining
agreement that had gone into effect in August 1951. Respondent denied that this chauffeur
had been discharged and also declined to treat the dispute as a grievance, on the converse
basis that Pagan was no longer an employee , as well as on the alternative ground that
inasmuch as no collective -bargaining agreement was in existence at the time of the requests
there was no arbitration committee to which disputes could be submitted. On March 2, 1953,
the Union requested a meeting with Respondent to discuss the layoffs of Angel Paul Henriguez.
Primitivo Gonzales, and Alfonso Castro Colon under an oral understanding which it claimed
had been in effect since October 15, 1952. On March 16 the Respondent denied the request
by stating there was no agreement in existence. Since April 1953 the Union has not attempted
to take up grievances with the employer, such matters of this character which have arisen
having been referred directly to the Insular Department of Labor by the above-named Manuel
Parodi Reinosa of whom one will read much in pages which are to follow. Prior to the end
of July 1952, grievances had been presented in behalf of employees, by the union marshal,
Vicente Santos Ramirez (later a member of the union negotiating committee) who was dis-
charged by Respondent on October 12, 1952. About 12 or 13 days before he was discharged,
Santos intervened with Laboy in behalf of a chauffeur named Ocasio, who had been in-
volved in 2 motor vehicle collisions, in an attempt to obtain a reduction in the charge being
assessed by Respondent against him for the cost of repairing the taxicab Ocasio had been
i The record (p. 179 , 1. 20) is corrected accordingly.
DE DIEGO TAXI CABS , INC. 1033
driving. At this time Laboy told Santos he and the Union were bothering him too much.
The latter asked forgiveness for his intrusion and promised to intervene no more. I find,
without needing to, resolve the question as to whether or not Respondent at the times in
question was under legal obligation to ventilate grievances with the Union , that it did in
fact , as alleged , refuse to discuss them with representatives of the Union, and I believe
that this conduct and the attitude it reflects should appropriately be considered in its
bearing upon the broad question as to whether or nor Respondent failed and refused to
bargain In good faith.
(2) After the contract which had been prepared by the Union had been redrafted in order
that it might more accurately incorporate the agreement on all clauses that had tentatively
been accepted by Respondent about October 15, 1952, the conciliator undertook to call the
parties together several times but Respondent presented a series of excuses for not meeting
to check the redraft and to sign it, if found in order Finally a meeting was set for November
28, 1952. Arrow, which alone with Respondent was the only other of the 5 companies with
whom negotiations had started in July , which hadnot by then come to a final signed bargaining
agreement with the Union , appeared at this meeting and after making a few changes , signed
the agreement on that date. Respondent did not appear. It based its failure to appear on the
grounds of the filing of the petition to which I have heretofore alluded. As will appear and be
found later , this petition was fostered by Respondent and did not represent the untrammelled
choice of the employees who were caused to sign it. After a hiatus of several weeks and the
petition for decertification was withdrawn and the Regional Office persuaded Respondent
that it should resume meeting with the Union , 2 or 3 conferences took place in early 1953.
Respondent asserted that the tentative agreement dating back to October was stale and that
it was not willing retroactively to grant all it had offered months earlier . In lieu of a promised
bonus to individual employees , the Company offered to pay the Union a lump sum of $ 500
the following June and insisted that the checkoff of dues date from January 7 , 1953 , rather
than from October 15 , 1952, as had been previously understood . Respondent proposed a
2-year term with the right of either of the parties to notify the other at least 60 days before
the expiration of the first year, what objections it might have to the existing contract,
rather than term retroactive to October 15, 1952, until August 1, 1953, with provision for
automatic renewal in the absence of termination notice more than 60 days before August 1,
1953 . These changed proposals required submission to the union membership. Thereafter
the Union informed Respondent that it was unwilling to accept the new proposals but that it
would agree either to the October 15 understanding or, if Respondent insisted in eliminating
the direct bonus payment, it would waive any bonus and also the hospitalization plan that had
been included in the October proposal provided Fspondent would pay a daily base wage of
$4. This resulted in Respondent requesting another draft proposal from the Union. About
the time it was prepared , along came , about April 23, another petition or statement from
employees that they had decided to remain working and go without a union . After a further
lapse of time and inquiries of the Regional Director , the Respondent invited the Union to
discuss bargaining . The Union immediately accepted the invitation but when it arrived at
the bargaining table , Respondent told it that it could not bargain because of a claimed threat
that employees would strike if it should do so . I find that Respondent did engage in dilatory
tactics from June 1952 to May 1953 during the course of collective -bargaining negotiations
and I believe that such conduct must be considered for the purpose of determining , whether,
in conjunction with , and in the light of, other facts and circumstances Respondent has bargained
in good faith.
(3) We have seen there was a delay from about October 15 , 1952 , to January 9, 1953,
before the parties got down to cases on the tentative agreement. Part of this delay was due
to a certain lack of precision onthepart of the Union in preparing a contract that incorporated
all the minutia of the verbal understanding and the ensuing redraft. A part was caused by
Respondent 's unwillingness to deal with the Unioa during the interim between the filing
and the withdrawal of the petition dated November 21. So , nearly 3 months later, we find
that Respondent was no longer agreeable to paying a bonus directly to employees who had
been with it since before September 30, 1952, or checking off dues from October 15 and
that it no longer chose to abide by the proposal with respect to the term of the contract.
Confronted with this tour de force, the Union , rather than insisting that the terms of the
tentative agreement be religiously adhered to , offered , as an alternative, to waive the bonus
payment, and the hospitalization plan and to allow the starting date of checking off of dues
to be postponed until 1953 upon Respondent raising the base pay 80 cents a day . When Respond-
ent rebelled at the give portion of this give -and-take proposal , the Union withdrew it. There-
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
upon in the words of a statement signed by Laboy, he and Respondent's attorney "reached
the same conclusion that these requirements of the Union necessitated the renegotiation of
the entire contract." The fact that Respondent shifted its position with respect to bonus,
hospitalization and checkoff matters and finally ended up by insisting that the entire agree-
ment should be reopened ab initio, supports the allegation that it vacillated and raised new
issues. The extent, if any, to which this conduct may be considered as supporting the con-
clusion that Respondent failed to bargain in good faith depends upon its interrelation with the
entire course of Respondent 's dealings with the Union.
(4) Laboy stated before the emergence of the letter of November 21, 1952, that he would not
sign any agreement, that he would find a way to oust the Union and that the only way he could do
so was bydischargingchauffeurs belonging to the Union and hiring nonunion people. In the hear-
ing of employee Primitivo Gonzales, Laboy told Parodithat the Union had to be defeated. In the
presence of a number of employees, Respondent's office man, Luis Figueroa,handed Parodi the
November 21 letter telling him to collect employees'signatures thereon. In circulating among
the employees, Parodi stated thatthe chauffeurs belonging to the Union got the worse cars, that
without the Union they would get new cars, that bailing facilities would be provided, that he would
personally see that chauffeurs who violated traffic laws were defended in court and would give
a prize to the chauffeur who produced the most revenue, that he could promise that employees
would be better off without, than with the Union, that Respondent did not want any union mem-
bers, that employees not signing the paper would be out of the Company at the first opportunity
and that they would be harassed until they left. Laboy told the employees that they would have to
sign the paper Parodiwas circulating so that they could get new cars, hospital benefits, bonding
facilities, lawyers to defend them in traffic violation cases, and other advantages. During the
time of the negotiations, Laboy stood near a company bulletin board bearing a notice of a meet-
ing to be held in theearlypartof September for the purpose of deciding whether a strike would
be called and told the employees that it was necessary for all of them to attend the meeting, that
they could go to it on company time and use the Company's taxis, that he would be compelled to
sell the Company, or only retain a few of the taxis, if required to increase wages, that the Com-
pany could only pay $3.20 daily, and that if the chauffeurs insisted on more they would be the
ones that would starve. Laboy also stated that he only wanted to pay $3.20 a day, but did not
want to pay a bonus or provide for hospital benefits and that he would rather sell his cars than
to have anything to do with the Union, that all of the more prominent members of the Union were
no longer employed, that he expected to have all the union members out of the Company, and,
that he could then, with the Union outof his business, get new taxicabs and give the employees
bonuses and other benefits. Laboy further announced that while the Union remained he would
neither change the cars nor would he sign any kind of a contract, that he had fired Santos who
was marshal and a prominent member of the Union and that he expected to get rid of all union
adherents and to be free of the Union.
It is very clear from all this that, as alleged, Respondents made promises of benefit and
threats of reprisals to its employees while collective-ba rgaining conferences were in progress
with the Union, which were designed to undermine the prestige and authority of the Union as
the collective-bargaining agent of Respondent's employees.
(5) As has been noted in subsections (2) and (3) above, Respondent requested the Union to
prepare another draft of its proposal about October 15, 1952, after it had reduced its demands
from $4.50 to $3.20 and then required a redrafting of that contract. This the Union agreed to
have undertaken under the direcuonof theconciliator. Then in 1953 Respondent repudiated this
proposal, the third that had been prepared. The Union, although still desirous of adhering to
the October 15 understanding, in view of Respondent's change in position, thereupon in fur-
therance of what I find to have been a continuing sincere desire to reach some mutually accept-
able, even though it were not an entirely satisfactory, agreement, made it known to Respondent
that it would pass up bonus and hospital benefits in return for a $ 4 wage scale. The net result of
this offer, completely rejected, was Respondent's rejoinder thatbargaining must be started all
over again. Thus the Union was left with the dismal prospect of once more assuming the burden
of again submitting a proposal. Thus, surely enough, on April 22, 1953, Respondent wrote the
Regional Director that it was necessary for the Union to submit a draft. The Union certainly
manifested a considerable degree of patience and complied with this demand, only to be met
with Respondent's remonstrance, in its answer, that the Union gave it three different drafts.
In the light of Respondent's entire course of conduct from July 1952 down to the present,
one can but regard its requiring the submission of new proposals and the renegotiation of an
agreement once provisionally agreed upon as an indication of its failure to bargain in good
faith. But for Respondent having failed to abide by the tentative agreement , the Union would not
have been required to trade further.
DE DIEGO TAXI CABS, INC. 1035
(6) Scarcely more need be said concerning the allegation that by repudiating an under -
standing concerning the retroactivity date of a collective -bargaining agreement alleged to
have been settled upon in October 1952 than has already been stated in subsections (2) and
(3) above. Respondent 's excuse in January 1953 that it should not be required to pay a
Christmas bonus to those few employees who were in its employ in September 1952 and might
have left before January 9, 1953, and those who were still in its employ on Christmas but who
might not have worked for not much morethan 3 months , possesses little merit. The situation
would have been the same if the agreement had been signed in July 1952 before the old
contract had expired , or in October when Respondent said it was agreeable to paying the
bonus . It was no different than in 1951 when Respondent paid the bonus to short- and long-term
employees alike. The further excuse that it might be difficult to locate some employees no
longer in its employ , is likewise unimpressive . If Respondent did not want to go to the trouble
of looking in its records for the addresses of such employees , and indeed it did not satisfac-
torily show that there were any in this category--and send them their money, the Union quite
certainly would cooperate in locating them. Nor can all the difficulties Respondent raises
about deducting dues retroactively from the wages of employees who had not authorized such
deductions be regarded as other than imaginary . The Regional Office of the Board wrote
Respondent that the Union had indicated that the checkoff need not be retroactively applied
and the Union wrote Respondent letter emphatically denying that it was demanding the
payment from Respondent of union dues retroactive to October 15, 1952, and that there
would be no impediment to working out the checkoff clause which involved a personal problem
between the Union and its members , recipients if paid up, of benefits from the Union. When
these facts are considered in the context of Laboy's statements to the effect that he would
have no union , would sign no contract , would run his own business free from union interference,
was getting rid of union members and would get them all out of the Company, and his assertion
at the meeting after he had offered the deferred payment of $ 500 in lieu of individual bonus
payments , that he would then neither pay the $ 500 nor sign an agreement on the basis
Respondent had submitted it at the preceding meeting and would agree to nothing about
anything, the conclusion that the General Counsel has proved the allegation that Respondent
repudiated agreements , including those concerning retroactivity , is virtually inescapable.
(7, 8) These allegations vary but slightly from those just discussed under subheading (2)
and (4), (7) is encompassed in (2); (8) merely changes the emphasis in the impact of promises
of benefits and threats of reprisals from the undermining of prestige and authority in (4)
to inducement of withdrawal of support of the Union's economic demands . Any discussion
would be redundant.
(9) It is claimed that at sometime during working hours Laboy threatened chauffeur
Abrahai q Pagan with a screwdriver . What little evidence touching upon this subject appears
in the record is no more than hearsay . The General Counsel has failed to prove the fact.
Even though it could be found that such an assault occurred , there is no showing that it was
related to the alleged refusal to bargain. There is evidence that when a charge (which was
later dismissed ) filed by the Union alleging Respondent had violated the Act by refusing
to discuss a grievance involving Pagan was under discussion at the Board's Regional Office,
Laboy twice arose from his chair in a threatening gesture toward Pagan.
In January 1953 Laboy complained to chauffeur Gonzales , of whom we have already heard,
that he was a destructive operator and Gonzales complained to Laboy that he was being under-
paid. Angry words followed and Laboy hit Gonzales knocking him to the ground . Laboy was
found guilty in court on a criminal complaint arising from this incident. In my opinion this
thin evidence is insufficient to warrant the conclusion that the General Counsel has sustained
the burden of proving the allegation that Respondent 's agents engaged in constant assaults
and threats of assaults against members of the Union who sought to present their grievances
in order to demonstrate that the Union did not possess the power or authority to protect its
members.
(10) As has previously been related, two documents apparently signed by about 55 em-
ployees and dated November 21, 1952, and signed by 68 to 70 employees and dated April 23,
1953, respectively , were received by the Union . The parties seem to agree that the first was
filed as a petition for decertification and the second was filed as a withdrawal of representa-
tion . For convenience I shall refer to them as such . The petition was withdrawn by Parodi
who stated that many employees had signed it because they feared otherwise they would have
been fired but that if there were to be a secret election they would vote in favor of the Union.
Before the circulation of the petition first started, Luis Figueroa , one of Respondent's
traffic dispatchers , an examiner of job applicants and one of its office men handed it to
Parodi with instructions to get employees to sign it . Parodi had at one time been president
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Union but had been defeated for reelection on a close vote by Angel Figueroa (not to
be confused with Luis Figueroa). At a union meeting Parodi had advocated a strike for $4
or more a day. Angel Figueroa had counseled against using the strike weapon. At the same
time Parodi was calling employees aside and telling what he wanted them to say in favor of,
or against, the Employer and was also dealing with Respondent. Thus Laboy was heard to tell
Parodi that he would be given a job if he ousted the Union. In circulating the petition, Parodi
told employees that if the Union were decertified they would be better off, supplied with new
cars , given hospital benefits , furnished bail, defended in court, and that they would receive
prizes and other gifts . He told an applicant for employment that Respondent would not hire
union members . He stated signatures were being collected to defeat the Union because the
Employer had a plan that would be more beneficial to the employees than the Union could
offer.2 Any doubt that Respondent was instrumental in encouraging , assisting , and supporting--
even indeed in fostering--the circulation of the petition is dispelled by Laboy's statement to
a group of employees that they had to sign the letter in order to obtain the very boons Parodi
was promising. One could believe that, later on, Parodi had some compunctions of conscience.
if his letter to his fellow union members stating he has returned to his "home" and asking
"to be forgiven for all the wrong things I have done against the principles of the Union,"
was not a mere missive of expediency.
The withdrawal of representation is dated 1 day after the complaint in these proceedings
was filed. The date of its receipt at the Regional Office is uncertain. The date "Jun 16 1953"
stamped by that office is obviously erroneous as the document was offered in evidence by the
Intervenor on June 3, 1953. The circumstances of its preparation at so late a date, whether
it be April 23 or thereafter are not so clear as are the circumstances attendant upon the
circulation of the petition. The record , so far as unplead matter was litigated, does disclose
in one place that the Union received the so-called withdrawal before Respondent wrote about
May 12 that it wanted to bargain again and in another place that it received it after May 15,
1953 , and during the 2 weeks preceding June 1, 1953 , and that signatories thereto informed
the union president that this paper also was instigated by Respondent who used the services
of one Jose Pastrana and Parodi to circulate it.
The complaint, of course, contains noallegation relating to any withdrawal of representation
coming as it did after the complaint issued. Nor did the General Counsel seek to amend the
complaint during the hearing. Whether or not, therefore , the evidence was sufficient to support
the conclusion that Respondent encouraged , assisted , and supported the withdrawal of repre-
sentation , is a question which, even if not foreclosed by the pleadings , need not be decided,
nor is it an essential element in the determination of a final conclusion on the main issue of
refusal to bargain.
(11) Employee Vicente Santos Ramirez was the union marshal . Laboy testified he discharged
him on October 12 , 1952, "because of the continual grievance that Mr. Santos had as to the
way the De Diego Taxi Cab Company conducted its business ." In a letter to Santos, Laboy
wrote that "after a careful study of the constant disagreements that have occurred between
you and the Company and because of your constant dissatisfaction with the working conditions
imposed by this Corporation on its employees, ... we are sorry to inform you that on October
13, you will cease as an employee of this corporation." Santos received his vacation pay as
well as 1 month's salary in advance whenhe was discharged. The laws of Puerto Rico provide
that any time a person is discharged from work without cause he shall be paid 1 month's
salary and vacation pay. In his capacity as marshal of the Union, Santos frequently represented
its members by taking up with Laboy such matters as the physical condition of their auto-
mobiles, working shifts assigned to them, and other terms and conditions of employment.
Shortly before his discharge, he had, as hitherto related in subsection III B a (1), been chided
by Laboy for bothering him by interceding in behalf of Ocasio. Santos had also attempted to
intervene in the case of another chauffeur named Narvaez who was being charged for the cost
of repairing a taxi involved in an accident. He was an employee member of the negotiating
committee of the Union and sat in on bargaining meetings that were being held at the time of
his discharge.
At the hearing, Respondent advanced various reasons for Santos' discharge , other than the
previously asserted reason of "his dissatisfaction with the working conditions imposed on the
employees." Without, for the time being , going into the question of whether Santos ' discharge
was in violation of Section 8 (a) (3) of the Act, it is reasonably clear that this action directed
against the union marshal and one of its negotiators in the midst of contract negotiations was
2 As to Respondent's responsibility for Parodi's conduct, see footnote 3, infra.
DE DIEGO TAXI CABS , INC. 1037
calculated to undermine the prestige and authority of the Union as the collective -bargaining
representative of its employees.
(12) While negotiations were going on between Respondent 's lawyer and the Union 's lawyer,
Respondent , without notice to or consultation with the Union, put into effect , in order, it says,
to stimulate production , a bonus of $1.50 a day payable to the chauffeur who produced the
most revenue daily. On April 8, 1953, following an assembly of employees on April 4, a
savings and loan fund was established. The committee which drafted the bylaws under which
the fund was established, consisted of Parodi , Luis Figueroa , whom by now we recognize
as Respondent ' s traffic dispatcher , job-applicant examiner , and bookkeeper and Ramon
Guzman whose work for Respondent involves taking telephone calls , assigning taxis to respond
to the calls, and keeping records of the chauffeurs' time of departure and return. The board
of directors was composed of the 3 above persons and chauffeur Olmo and mechanic Robles.
The evidence adduced failed to prove that this fund was supported by Respondent although
Parodi and 2 persons who were more closely identified with management than rank-and-file
employees took the lead in its establishment . The granting of the bonus during the course of
negotiations without consulting with or advising the Union is the type of conduct that the
Board has consistently regarded as in indication of a failure to bargain in good faith.
(13) A careful reading of the record fails to disclose sufficient evidence to warrant the
conclusion that, as alleged by the General Counsel, Respondent advised its employees that it
would not and could not make an agreement with the Union while certain officers and repre-
sentatives were selected to conduct collective- bargaining negotiations.
Conclusions as to the 8 (a) (5) Allegation
The obligation of good-faith bargaining prescribed by the Act contemplates that the parties
should come to the bargaining table with a fair and open mind and a sincere desire and pur-
pose to conclude an agreement . While at times Respondent went through the motions of
bargaining , I am satisfied that the following conduct, which has been described in more detail
above, in its totality and viewed in the light of the entire record, evidences its desire to
avoid, rather than to reach , an agreement on mutually acceptable terms : the refusal to dis-
cuss grievances ; the encouragement of the circulation of the petition for decertification; the
insistence that the Union restate its proposals in new documents and begin negotiations anew,
thus reopening matters agreed upon ; the shifting of its position and repudiation of tentative
agreements on and after January 9, 1953 , with respect to subjects upon which the parties
were in substantial accord about October 15 , 1952; the granting of bonus without notice to or
consultation with the Union , thus depriving the Union of its dignity and status as the exclusive
bargaining representative ; the assumption , and the entailing demoralizing and frustrating
effect of the position it took in February 1953, following months of bargaining , that the entire
contract must be renegotiated , after the Union had withdrawn its proposal of stepped-up
wages conditioned upon its waiver of bonus and hospitalization benefits when it was declared
unacceptable to Respondent; the discharge of the union marshal and member of its negotiating
committee in the midst of collective-bargaining conferences ; the assertion that no contract
would be signed with the Union ; and the making of promises of benefits and threats of reprisals
designed to undermine the prestige and authority of the Union as the collective-bargaining
agent of the employees and to induce them to withdraw their support of the Union's economic
demands.
It is conclusively settled that the obligation to bargain collectively created by Section
8 (a) (5) of the Act is an obligation to negotiate "honestly" (Art Metals Construction
Company v. N. L. R. B., 110 F. 2d 148, 150 (C. A. 2), with a bona fide intention to find
a basis of accord, if possible (N. L. R. B. v. American National Insurance Co., 343 U. S.
395, 402-403; N. L. R. B. v. Reed & Prince Mfg. Co., 118 F. 2d 874, 885 (C. A. 1),
certiorari denied, 313 U. S. 595; N. L. P. B. v. Highland Park Mfg. Co., 110 F. 2d 632,
637 (C. A. 4); Singer Mfg. Co. v. N. L. R. B., 119 F. 2d 131, 134 (C. A. 7), certiorari
denied, 313 U. S. 595, rehearing denied 314 U. S. 705), and, if an agreement is achieved,
to sign a written contract embodying its terms ( Heinz Co. v. N. L. R. B., 311 U. S. 514,
523-526; Art Metals Construction Company v. N. L. R. B., supra). N. L. R. B. v. Kiwi
and Prince Manufacturing Co., 205 F. 2d 131 (C. A. 1).
In view of all of the foregoing, I conclude and find that at least since on or about January
9, 1953, when negotiating meetings recommenced, Respondent has refused to bargain with the
Union and that by such refusal it has violated Sections 8 (a) (1) and (5) of the Act.
337593 0 55 - 67
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. Interference , restraint , and coercion
Specified Conduct
(1) We have seen that Laboy threatened to assault employee Pagan when a charge that
Respondent had refused to discuss his grievance was being aired and that he hit employee
Gonzales when the latter complained about being underpaid . While such conduct on the part of
an employer is certainly not to be condoned , I have already indicated my feeling that there is
an insufficient substantial evidential to show that this threat and this assault were so related
to concerted activities for the purpose of collective bargaining or other mutual aid or protection
as to warrant a finding they constituted per se violations of Section 8 (a) (1) of the Act.
(2) Laboy's statements that he would not sign a contract and that he would find a way to oust
the Union by discharging chauffeurs belonging to it and Parodi's statements3 that if the Union
were decertified , the employees would be better off, supplied with new cars , given hospital
benefits , furnished bail, defended in court, and would receive prizes and other gifts, that
Respondent would not hire union members , that signatures were being collected to defeat the
Union because the employer had a plan that would be more beneficial to the employees than
the Union could offer--were threats of reprisals and promises of benefits clearly calculated
to induce employees to withdraw their support of the economic demands currently being made
by the Union as their collective -bargaining agent. I find that by this conduct Respondent
violated Section 8 (a) (1) of the Act.
(3) In September 1952 , Laboy requested employee Daniel Alvarez Muniz to take a car and
attend a meeting of the Union , a notice of which had been posted on the Company , rather than
on the Union 's bulletin board, find out what happened at the meeting, and to come back and
inform him what transpired . This is a type of intrusion into the employees ' full freedom of
union activity that is almost invariably found to constitute interference , restraint, and
coercion of a character prescribed by Section 8 (a) (1) of the Act. I find a violation of this
section in the circumstances here present.
(4) As the evidence does not show that Respondent succeeded in inducing anyone actually
to spy upon any union meetings or that any of its officers , supervisors , or agents kept any of
them under surveillance , I find that the allegation to such effect has not been sustained.
(5) As has been seen above, a petition to decertify the Union was given Parodi by Respond-
ent's representative with the behest to circulate it among the employees who were told by
Laboy that they must sign it. It has been shown that employees signed it through fear of losing
their jobs if they did not and that the petition was withdrawn when it was realized that the
employees , in the event of an election would vote in favor of, rather than against , retaining
the Union . This conduct is clearly in derogation of the employees ' right not to be interfered
with, restrained , or coerced in their self-organizational activities.
(6) Laboy 's statements that he would be compelled to sell the Company , that he would retain
only a few taxis giving service at Fort Buchanan and 2 or 3 operating from the Normandie
Hotel, and that he would sell the cars rather than have anything to do with the Union , and that
he had fired the marshal of the Union and expected to get rid of all its members were patently
violative of Section 8 (a) (10 of the Act.
(7) It is very apparent that a number of employees were discontented with President Angel
Figueroa 's concession before October 15,1952, in agreeing to reduce the original wage demand
from $4.50 to the $ 3.20 base prevailing under the 1951 -1952 contract . There was talk of a
strike in the air at this time and Parodi was its leading vocal , if not genuine , advocate. Laboy
made it plain to the employees that he would not pay more than $ 3.20 and told them that if
they did not accept it they would starve. A meeting was called and a notice was placed on the
bulletin board on which Respondent posts notices to its employees (the Union usually posted
its notices on a pane of glass ) notifying the members about this particular meeting. Laboy
stood near this notice and told the employees that it was necessary for all of them to attend
this assembly . Laboy's strange interest in having a full attendance at this precise meeting
can scarcely be explained except on the basis that he knew or believed that its purpose was
to consider strike action. He informed the employees that they could take time off and they
could use the company taxis for that purpose . He had told them that he would sell the business
3 Because of the circumstances under which the petition was prepared and circulated by
Parodi, including its being handedtohimbyLuis Figueroa , with instructions to get employees'
signatures and Laboy 's statement to a group of employees that they had to sign it, I am con-
vinced and find that the relationship between Parodi and Respondent was such as to render
the latter responsible for Parodi ' s remarks and conduct.
DE DIEGO TAXI CABS, INC. 1039
or retrench its operations and had threatened them with the prospect of famishment if they
should strike for more pay. There can be no doubt that by this time Laboy believed that the
employees had been probably quailed into voting against a strike. Employees are free to refrain
from, as well as to engage in, any or all union activities. When an employer interferes with
that freedom and tells them they must participate in a union meeting, he violates the Act. And
this is particularly true, where an employer, as I find Respondent did in this case, accompanies
his urgings, instructions, or insistence with threats of reprisals, if employees do not do his
bidding, and promises of reward if they do.
That Respondent engaged in the conduct discussed in the various subsections of this general
title III, B, a, is virtually undenied. lam persuaded and find that by Respondent's various acts
of making promises of benefits and threats of reprisals, requesting the attendance at meetings
of the Union for the purpose of reporting their happenings , encouraging , assisting and support-
ing the circulation of a petition to decertify the Union, warning and menacing employees with
the prospect of the cessation or curtailment of operations, and the discharge of union sup-
porters and intervention in procuring employees' attendance and directing their action at union
meetings, Respondent interfered with, restrained, and coerced its employees in violation of
Section 8 (a) (1) of the Act.
c. The discharge of Vicente Santos
The story of this aspect of the case has already been related in considerable detail. This
report has already grown too long and the facts need not be repeated. We should, however,
pause for a moment to consider the reasons assigned for Santos' discharge when he was
fired, whether they are consistent with Respondent's conduct at that time and how they com-
pare with the reasons advanced at the hearing. Originally Respondent wrote Santos it was
discharging him because of his dissatisfaction with the working conditions imposed on em-
ployees . It can be readily understood that Respondent dimly viewed Santos ' expressions of
disapproval of its behavior toward its employees. But that was Santos' job. In fulfillmentof
his obligation as the Union's marshal and under the contract it was his duty to call Respond-
ent's attention to incidents of claimed or actual improper or inequitable treatment of em-
ployees and seek their rectification. Whether or not there was substantial justification for
Santos' complaints in every case is of no moment. The entire purpose of a grievance pro-
cedure is to enable employers and their employees, through their duly selected representatives,
to eliminate misunderstandings and solve differences in an orderly, peaceful manner to the
end that disruptive industrial strife may be avoided. If, then, Respondent discharged Santos
for the very reason that he, as a representative of, in behalf of, and in concert with, the Union
and its members, engaged in activities that can be no other than for purposes respecting
mutual aid or protection, its dischargeofhimwas in restraint of the rights guaranteed in Sec-
tion 7 of the Act, if not indeed a discrimination in regard to his tenure of employment violative
of Section 8 (a) (3) of the Act. And whether this conduct be deemed a violation of Section 8 (a)
(1) or 8 (a) (3), the remedy should be the same.
At the hearing, while not disavowing that it discharged Santos for the reasons stated in its
letter of October 12, 1952, Respondent advanced additional reasons that were not disclosed to
him at that time. Thus it asserts that factors leading up to his separation were that on August
21, 1952, an outside repairman refused to make estimates of damage to automobiles because
he claimed Santos insulted him, that on May 14, 1952, Santos taxied local passengers rather
than obeying an order to pick up a fare at Fort Buchanan Post Exchange, that on May 17 and
August 12, 1952, he did not complete his time and refused to continue working, that on March
27 and July 10, 1952, he was absentwithout leave or excuse, that on May 18, 1952, he reported
to work and left because his car was out of order and said he would not drive any other car,
and that on June 6, 1952, he reported to work but left because his car was not given to him
early. If they did occur, and they are not specifically denied by Santos, these acts of insub-
ordination, indifference, or impatience, whatever they may be called, took place between
March 27 and August 21. Why did Respondent fail in October 1952 to consider them sufficiently
important to merit mention as causes for discharge? Why did it stress them for the first time
on June 3? If Respondent had had any truly substantial reason, or a reason it was willing to
disclose, for inflicting upon Santos the always harsh penalty of discharge, why did it go to the
expense of paying him for services not used, a vacation allowance and for a month in advance
as required by the Insular Statute when an employee is discharged without cause? Of course an
employer may discharge an employee for no reason or cause as well as for a good or bad
reason or cause, without running afoul of the Act, provided that the cause or reason is not one
it prescribes. But here we have a situation where the employer, in reality first ascribes its
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
disapproval of an employee 's activities in behalf of union members as the cause for discharge,
then , by its conduct in paying time and for vacation in advance assumes the position there was
no cause for the discharge and then, finally for the first time many months later when it is
defending against an unfair labor practice charge, advances at the eleventh hour, some
relative minor derelictions and temperamental traits as the reason . These reasons do not
stand up under scrutiny . In the light of the entire course of Respondent 's conduct throughout
the course of its negotiations up to October 12, 1952, both in Laboy's dealings with the union
negotiators of whom Santos was one, and his statements to his employees , I am convinced that
the real reason for the discharge of Santos , who next to Angel Figueroa , the president of the
Union, was its most prominent member and who more than anyone argued the union line and
sought the advancement of the welfare of its members with Laboy, was Santos ' representation
of members of and his activities on behalf of the Union, I accordingly conclude that in dis-
charging Santos , Respondent violated Section 8 ( a) (1) and 8 (a) (3) of the Act.
d. Respondent 's special defenses
The contention that the Union itself failed and refused to bargain in good faith by deceptively
altering clauses in a proposal which had been discussed and by preventing Respondent from
determining its precise demands by submitting divers proposals , must be rejected . When the
parties resumed bargaining conferences on January 9,1953 , Attorney Benicio Sanchez Castano
for the first time appeared as representative of the Union. President Figueroa had stated to
Mr. Sanchez that a certain draft had been prepared by the conciliator and that it had been fully
agreed to by the parties . Attorney Sanchez asked Flgueroa to get him a draft of this document.
It would seem that Attorney Martinez Alvarez , who appeared for Respondent on January 9, also
for the first time , had asked Sanchez for a draft proposal. At this meeting, Sanchez delivered
a draft that had been given to him by Figueroa , to Alvarez but no mention was made of the
fact that it was claimed to be the draft that was prepared by or under the direction of the
conciliator . Either on or before January 15, 1953 , when the next meeting was held, Alvarez
stated to Sanchez that there was a difference between the proposal handed him on the 9th and
that prepared under the conciliator 's aegis . It appears that the contract submitted on the 9th
contained a $ 4.50 daily wage clause and no provision respecting a hospitalization plan or a
bonus payment. Thus this document more closely resembles the Union 's first proposal, less
the hospitalization and bonus which were later waived than the October 15 proposal. In any
event, the fact of the divergencies in the document given Alvarez on January 9 and in the
October 15 suggestions caused no break in the meetings which continued on January 15,
February 11, and February 27. No representation that the proposal of January 9 was a dupli-
cate of that of October 15, having been made Respondent can hardly claim that it was decep-
tively submitted . Negotiations having broken off by Respondent after the filing of the petition
for decertification which it encouraged , the Union cannot be convicted of a refusal to bargain
on the grounds that, if it is a fact, it tried to make a bargain for more money than it would
have accepted earlier while at the same time relinquishing its demands for other benefits.
It is difficult to believe that Figueroa was stupid enough to think that he could trick Respondent
into acceptance of a contract which it would not read. A far more likely conclusion is that the
paper handed Respondent 's counsel on January 9, 1953 , was a copy of the original blanket
proposals submitted by the Union to all five taxicab companies in the beginning of August 1952
as subsequently redrafted . Respondent 's counsel frankly admits that this document was not
claimed to have been a copy of the October 15 draft and it was readily identified as not being
such . There would seem to have been no occasion for Figueroa to have felt that Respondent
required the resubmission of the latter proposal with which it was familiar by virtue of fairly
recent discussions between the Union and Respondent . It is an entirely reasonable assumption
that Respondent actually had the October 15 proposals on hand or available --for otherwise how
could it so readily have noticed the differences in the two documents ? Or again it may well be
that Figueroa--an individual possessing scarcely none of the attributes of a man of affairs--
simply handed over to the Union 's newly retained lawyer whatever files he held . But it is
fruitless to engage in endless surmises about this confusing situation . The outstanding con-
sideration remains that even if the proposalhad been given Respondent 's counsel in an attempt
to mislead--a fact which Respondent , the raiser of the issue in its special dffense, has filed
to establish-- it still would not follow that Respondent , by its conduct which has been exposed
at length in these many pages , has itself not failed and refused to bargain in good faith.
Respondent's contention , by way of further so -called special defense , that the Union's demand
that it should agree to pay the Union an amount representing a checkoff of dues retroactively to
August 15 , 1952 , is not factually supported. In the first place, the Union 's interim request was
DE DIEGO TAXI CABS, INC. 1041
that this payment should be retroactive only to October 15, a not unreasonable suggestion in
view of the fact that Respondent had not made these payments since the contract expired in
August. And more importantly, perhaps, there is the fact that by May 1953, Figueroa indicated
that the deduction of membership dues and their payment to the Union by Respondent need not
be retroactive and that any problem as to future deductions and payments could be adjusted by
discussion.
Taking Respondent's testimony at full strength that on February 27, 1953, Figueroa stated
that Respondent's attorney did not tell the truth and then retracted the statement, no lengthy
dissertation is required to convince one that this incident furnishes no basis for concluding
that, as alleged in its last "special defense," the Union failed and refused on request to bar-
gain in good faith.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connection with its
activities described in section I, above, have a close, intimate, and substantial relation to trade.
traffic, and commerce among the several States and the Territories of the United States and
tend to lead to labor disputes burdening and obstructing commerce.
V. THE REMEDY
Having found that Respondent has engaged in and is engaging in certain unfair labor practices,
I will recommend that it cease and desist therefrom, and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that from January 9,1953, Respondent has unlawfully failed and refused to bar-
gain with the Union as the exclusive representative of Respondent's employees in an appro-
priate unit, I will recommend that Respondent, upon request, bargain collectively with the
Union as such representative and, in the event that an understanding is reached, embody such
understanding in a signed agreement.
Having found that Respondent in various respects has interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed by the Act, I will recommend
that Respondent cease and desist therefrom.
Having found that Respondent has discriminated in regard to the hire and tenure of employ-
ment of Vicente Santos, I will recommend that Respondent offer him full and immediate rein-
statement to his former or substantially equivalent position without prejudice to his seniority
and other rights and privileges and make hum whole for any loss of pay that he may have
suffered as a result of the discrimination against him, by payment to him of a sum of money
equal to the amount he would normally have earned as wages from October 13, 1952, to the
date of offer of reinstatement, less his net earnings during such period, the back pay to be
computed on a quarterly basis in the manner established by the Board in F. W. Woolworth
Company, 90 NLRB 289. I will also recommend that Respondent preserve and upon request
make all records pertinent to a determination of back pay due, available to the Board or its
agents.
In view of the nature of the unfair labor practices committed, the commission by Respondent
of similar, as well as other, unfair labor practices may be reasonably apprehended. The
remedy should be coextensive with the threat. I will therefore also recommend that the
Respondent cease and desist in any manner from infringing upon the rights guaranteed in
Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I
make the following:
CONCLUSIONS OF LAW
1. Capitulo de Choferes de San Juan is a labor organization within the meaning of Section 2
(5) of the Act.
2. All taxicab drivers of Respondent, excluding executives, guards, and supervisors as
defined in the Act, constitute a unit appropriate for the purposes of collective bargaining
within the meaning of the Act.
3. The above-named Union has been at all material times, the exclusive representative of
all employees in the aforesaid appropriate unit for the purposes of collective bargaining within
the meaning of Section 9 (a) of the Act.
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. By refusing on January 9, 1953, and at all times thereafter to bargain collectively with
the aforesaid Union as the exclusive representative of its employees in the aforesaid appro-
priate unit, Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (5) of the Act.
5. By interfering with, restraining, and coercing employees in the exercise of rights
guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act.
6. By discriminating in regard to the hire and tenure of employment of its employees, and
thereby discouraging membership in the above-named labor organization, Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3)
of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
[Recomendations omitted from publication.]
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor Ielations Act, we hereby
notify our employees that:
WE WILL bargain collectively , upon request , with Capitulo de Choferes de San
Juan, as the exclusive representative of the employees in the bargaining unit described
below with respect to rates of pay , wages , hours of employment , and other conditions
of employment , and if an understanding is reached , embody such understanding in a
signed agreement . The bargaining unit is:
All taxicab drivers working for us in Puerto Rico, excluding executives , guards,
and supervisors as defined in the Act.
WE WILL NOT make promises of benefits and threats of reprisals to employees for
refraining from or engaging in union activities , request them to attend union meetings
for the purpose of reporting their happenings , encourage , assist , and support the cir-
culation of petitions for union decertification , warn and menace employees with the
prospect of the cessation or curtailment of our business operations and the discharge
of union supporters if union activities should continue , nor procure the attendance of
and direct the action of our employees at union meetings.
WE WILL NOT discourage membership of our employees in the above -named or
any other labor organization by discharging or refusing to reinstate any of them, or
by discriminating in any other mariner in regard to their hire and tenure of employment,
or any term or condition of employment.
WE WILL offer Vicente Santos , upon his application , immediate and full reinstatement
to his former or substantially equivalent position , without prejudice to any seniority or
other rights and privileges previously enjoyed and make him whole for any loss of pay
he may have suffered as a result of the discrimination against hum.
WE WILL NOT in any other manner interfere with, restrain , or coerce our employees
in the exercise of the rights to self -organization , to form labor organization , to join or
assist the above-named or any other labor organization , to bargain collectively through
representatives of their own choosing , and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protection, or to refrain
from any or all such activities except to the extent that such rights may be affected
by an agreement requiring membership in a labor organization as a condition of em-
ployment, as authorized in Section 8 (a) (3) of the Act.
DE DIEGO TAXI CABS, INC.,
Employer.
Dated ... ............. By..............................................................................................
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be altered,
defaced, or covered by any other material.