Dyneteria, Inc.

National Labor Relations Board - Board Decisions

Nov 13, 1973

207 N.L.R.B. 282 (N.L.R.B. 1973)

282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dyneteria, Inc. and Union Nacional de Trabajadores.
Case 24-CA-3321
November 13, 1973
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On September 11, 1973, Administrative Law Judge
John F. Corbley issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,_ and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Dyneteria, Inc.,
Viques, Puerto Rico, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
DECISION
STATEMENT OF THE CASE
JOHN F. CORBLEY, Administrative Law Judge: A hearing
was held in this case on June 5 and 6, 1973, at Hato Rey,
Puerto Rico, pursuant to a charge filed by Union Nacional
de Trabajadores on March 5, 1973, and duly served upon
the Respondent on the same date, and a complaint and
notice of hearing dated May 4, 1973, issued by the
Regional Director for Region 24 of the National Labor
Relations Board, which was likewise duly served on
Respondent. The complaint alleges that Respondent has
violated and continues to violate Section 8(a)(3) and (1) of
the Act by discharging Jaime E. Lopez Roger, Francisco
Lopez Roger, and Ruben Lopez Roger on February 26,
1973, and thereafter refusing to reinstate them, because
said employees joined and assisted the Union and engaged
in other concerted activity for the purposes of collective
bargaining and mutual aid and protection.
In its answer which was duly filed and amended on the
record at the hearing, Respondent denied the commission
of any unfair labor practices.
For reasons, which will appear, I find and conclude that
Respondent discharged and thereafter refused to reinstate
Jaime E. Lopez Roger, Francisco Lopez Roger, and Ruben
Lopez Roger in violation of Section 8(a)(3) and (I) of the
Act.
At the hearing, the General Counsel, Respondent, and,
for part of the time, the Charging Party, were represented
by counsel. All parties were given full opportunity to
examine and cross-examine witnesses, to introduce eviden-
ce, and to file briefs. The General Counsel and Respondent
presented oral argument at the conclusion of the hearing
and the Charging Party waived this right. Briefs were
received from the Respondent and the General Counsel on
July 31, 1973.
Upon the entire record in this case,' including the briefs,
and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The Respondent is and has been at all times material
herein a corporation organized under, and existing by
virtue of, the laws of North Carolina. At all times material
herein the Respondent has maintained its principal office
and place of business in the city of Dunn, North Carolina,
and various other places of business in several States of the
United States and the Commonwealth of Puerto Rico,
where it is, and has been at all times material herein,
continuously engaged in providing maintenance and
security guard services at U.S. military installations located
at the aforesaid places pursuant to contracts with the
Department of Defense. During the past year, which
period is representative of its annual operations generally,
Respondent, in the course and conduct of its business
operations, furnished services valued in excess of $500,000.
At its Vieques island location, here involved, Respondent
is engaged in furnishing kitchen, housecleaning, and
security guard service for the Naval air facility located
there, pursuant to a contract with the Department of
Defense which provides Respondent $160,000 in annual
income.
The Board took jurisdiction of the Respondent in March
1973 pursuant to a stipulation for certification upon
consent election at Respondent's Vieques location in Case
24-RC-4951 which stipulation was approved by the
Regional Director on March 8, 1973. In paragraph 8 of
said stipulation and in a previously submitted commerce
questionnaire Respondent admitted the foregoing facts in
respect to its Vieques operation and also conceded that it is
an Employer engaged in commerce within the meaning of
the Act.
In view of the Respondent's recent admission as to the
Board's jurisdiction and the assertion of jurisdiction by the
Board in Case 24-RC-4951, in view of Respondent's
services across the North Carolina state line to Puerto Rico
to the United States Government, which services have a
value in excess of $50,000 annually; and for the further
reason that such services have a substantial impact upon
i The transcript of the proceeding is hereby corrected in the following
particulars ]omitted from publication]
207 NLRB No. 51
DYNETERIA, INC. 283
the national defense, I conclude that Respondent is and
has been, at all material times herein, an Employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act?
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer (as amended at the
hearing) admits, and I find that Union Nacional de
Trabajadores, sometimes referred to hereinafter as the
Charging Party or the Union, is a labor organization within
the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background-Respondent's Operations on
Vieques,,- Its Hierarchy
Vieques is an island off the coast of Puerto Rico where
the United States Navy operates a facility. As previously
noted, Respondent has a contract to provide kitchen,
housecleaning, and security guard service to the Navy at
this location. Respondent's housecleaning force, which
performs outside work including the cutting of grass and
trees, normally consists of approximately 28 employees.
The three alleged discriminatees, Jaime E. Lopez Roger,
Francisco Lopez Roger, and Ruben Lopez Roger, who are
brothers, were members of the latter crew. The guard
group includes about 25 employees and the kitchen force
about 8 or 9.
Raul Flores Mora is and has been at all times material
herein the general manager of Respondent's operations at
Vieques, Puerto Rico, and its agent at that location,
reporting directly to Respondent's president at Dunn,
North Carolina. In his capacity as general manager, Mora
prepares the work schedule, checks the payroll, takes care
of employee "complaints," hires and discharges employees,
disciplines them, and, through three immediate "supervi-
sors," assigns them work. I find, as conceded by counsel
for Respondent in his closing statement, that Mora is a
supervisor within the meaning of Section 2(11) of the Act. I
further find that he is, and was at all material times, an
agent of Respondent acting in its behalf at least insofar as
the acts complained of herein (the discharge of the three
Lopez Rogers) are concerned, because it is undisputed that
he had the authority to discharge employees, and, as will
appear, was the only person with such authority insofar as
the housecleaning employees were concerned.
Next in Respondent's chain of command with regard to
its housecleaning operations is Wilfredo Rodriguez, a so-
called nonworking "supervisor." 3 Under Rodriguez are at
least three working foremen who oversee crews of about 7
employees into which the housecleaning force of 28 is
divided.
The General Counsel contends that Wilfredo Rodriguez
is a supervisor within the meaning of Section 2(11) of the
Act, primarily because, says the General Counsel, Rodri-
2 Siemons Mailing Service, 122 NLRB 81, 85 (direct outflow), Trico
Disposal Service, Inc., 191 NLRB 104; The Multi-Color Company, 122 NLRB
429, 433.
3 1 make this finding based on the credible testimony of Mora-
4 Given the difficulty of translating the full meaning of Spanish words
and thoughts into English and vice versa, I do not deem Rodriguez'
guez has the authority to hire and fire employees and
responsibly to direct them. Rodriguez denied at the hearing
that he possesses authority to hire and discharge employ-
ees. When confronted with his affidavit to a Board agent
he acknowledged that he had told the Board agent that he,
possessed the authority to hire and fire but explained that
he took such action only after Mr. Mora had interviewed
the employee on whom the action was taken-
I am satisfied with this explanation and conclude
therefrom that any such action taken by Rodriguez would
be after the decision to hire or discharge was made by
Mora .4 Insofar as Rodriguez' direction of the work force is,
concerned the record amply indicates that he performs this
function as a conduit of the instructions and orders given
him by Mora and not on the basis of his, Rodriguez', own
independent judgment. In any event I find it unnecessary
to reach or pass upon the question whether Rodriguez is a
supervisor within the meaning of Section 2(11) of the Act.
B. Sequence of Events Involving Union and Other
Concerted Activities; Participation Therein of the
Lopez Roger Brothers
Jaime Lopez Roger, Francisco Lopez Roger, and Ruben
Lopez Roger all began working for Respondent at Vieques
about December 1971 s All worked under Rodriguez in the
maintenance crew from December 1971 until their dis-
charge on February 26, 1973.
According to the laws of Puerto Rico the Employer is
required to pay its employees a Christmas bonus on or
about December 15 of each year. In 1972 the Christmas
bonus was late.
At about 7 a.m. on a morning in late December 1972 or
in early January 1973-but after the checks were due-sev-
eral employees including the three Lopez Roger brothers
informed Rodriguez that they would not work until the
bonus was paid. Rodriguez thereafter informed Mora of
this threatened stoppage and likewise told Mora that Jaime
E. Lopez Roger had communicated this threat to Rodri-
guez. From this, Rodriguez told Mora, he,' Rodriguez,
believed that Jaime Lopez Roger was the spokesman for
the group.
Thereafter the employees refused to work until they
received their checks. All three of the Lopez Roger
brothers participated in this stoppage. The checks were
given the employees about 10 o'clock on that same
morning and the employees later returned to work. This
stoppage took place outside the main gate of the Naval
station where employees wait to be picked up by
Rodriguez to be driven to the place where they are to' work
each day.6
Subsequently in late December 1972 or early January
1973 Jaime Lopez Roger spoke to Victor Emeric, a friend,
informed Emeric that the employees were interested in
"unionizing themselves" and inquired if Emeric knew of a
labor organization. Emetic suggested the Charging Party
explanation improbable.
5 Jaime and Francisco credibly testified they had worked a year and2 or
3 months. Rodriguez credibly testified that all three Lopez Roger brothers
were working there when he, Rodriguez , began in December 1971.
6 My conclusion as to the location of this stoppage is based on the
credible testimony of Rodriguez in this regard.
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and also said he would speak to its organizers so that the
organizers would come and visit the-employees.
In early January 1973, Edwin Melendez, an organizer for
the Charging Party, spoke to some 12 employees of
Respondent at the main gate of the Naval Station at
Vieques about 3:30 in the afternoon. Melendez told the
employees of the benefits of unionizing. He also passed out
union authorization cards at this meeting. All three Lopez
Roger brothers were present at this gathering. Francisco
took several cards. While the employees were listening to
and conversing with Melendez at the gate on this occasion,
Rodriguez drove by so closely that the employees had to
get out of his way to let him pass.
Francisco Lopez Roger subsequently' visited several
employees at their homes and tried to get them to sign up
for the Union.
Two weeks later a meeting was held at 9 a.m. on a
Saturday in January 1973 at Legi's bar which is some
distance from the Naval Base. Some 12 people attended
this meeting including Francisco and Jaime Lopez Roger.
Melendez, the union organizer, also attended and repeated
the necessity of having employees execute authorization
cards for the Union. Melendez then passed out cards some
of which were taken by Jaime E. Lopez Roger.
Jaime Lopez Roger then tried to sign up his fellow
employees and succeeded in obtaining signed authoriza-
tion cards from eight or nine of them at their homes. These
signed cards were returned to Melendez by Jaime at
another meeting at Legi's bar about 2 weeks later. In
attendance at this later meeting were about eight employ-
ees including Jaime Lopez Roger, as noted, and his brother
Ruben.
Also during this period, at least for several -months
preceding their discharge, I find that all three Lopez Roger
brothers frequently discussed the Union at the Naval Base
when they arrived at work at the gate and while they were
being taken out to the jobsite and that these conversations
were reported to Mora by Rodriguez.7
Meanwhile on January 23, 1973, the Union filed a
petition with the Board in Case 24-RC-4951 seeking a
Board-conducted election among the Employer's employ-
7 Rodriguez credibly testified that the Lopez Roger brothers were
sometimes late for work because they stopped on the way to the job to
discuss the Union and politics . Mora credibly testified that Rodriguez
reported these conversations as occurring on the way out to the jobsite and
named Jaime and Francisco Lopez Roger as being among the participants.
8 Mora testified that his warning letters were given to the three brothers
on this date and Rodriguez stated he, Rodriguez , warned them on this date.
From this combination of evidence, I conclude that Rodriguez delivered
Mora's warning letters to the three Lopez Roger brothers at that time.
9 The translation of this article follows:
U. S. Navy Officer
PRESSURE IS PUT ON NATIVES OF VIEQUES WHO WISH
TO UNIONIZE
By Victor Emeric
Claridad" Reporter
Vieques---A U_ S. Navy officer threatened with discharge 28 natives
of Vieques, maintenance workers at the military base, because the latter
have remained steadfast in their purpose to join Union Nacional de
Trabajadores.
Last Friday Raul Mora , a military man of Mexican background and
a top official of the Dyneteria Corporation, a company that holds a
contract to give maintenance to military installations, threatened with
discharging the workers particularly the brothers Ruben , Francisco and
Jaime Figueroa [sic in translation and in original ] spokesmen of the
group.
ees. An amended petition was filed on January 30, 1973, by
the Union seeking an election limited to a unit consisting
of the Employer's, service and maintenance employees at
Vieques.
On February 26, 1973, as will be discussed more fully
hereinafter, the three Lopez Roger brothers were dis-
charged.
On March 8, 1973, the Regional Director approved a
stipulation for certification upon consent election in Case
24-RC-4951 in which the election was scheduled to be
held on March 21, 1973. The election was held, and the
Union won and was certified by the Regional Director on
March 29, 1973, as the exclusive bargaining representative
of the Employer's service and maintenance employees at
the Naval air facilities on Vieques.
C. The Discharge of the Three Lopez Roger
Brothers
On February 22, 1973, Rodriguez gave the three Lopez
Roger brothers identical warning letters from Mora.8 Each
letter was addressed to the individual brother and stated it
was from Mora. The caption of each letter reflected
"Subject: Admonishment." The body of each letter was, as
follows:
Number 1. We have received various complaints of
your bad conduct and also of the bad comradeship
which you have shown lately.
Number 2. It is necessary that all personnel of this
company, work united and with good comradeship
being that it would be beneficial to all.
Number 3. We hope not to have to refer to this
again; otherwise we shall be obliged to suspend your
employment and salary for an indefinite time.
On February 26, 1973, Mora saw a copy of the
newspaper "Claridad" in which an article appeared, under
the byline of Victor Emeric, which discussed the Respon-
dent, Mora, and Respondent's employee-management
relations.9 The article also quoted statements by Jaime
Lopez Roger.
After reading the article in his office, and apparently
As tactics to prevent the workers from joining Union Nacional de
Trabajadores, officer Mora, without consulting these employees,
attempted , of his own accord, to cause them to become members of
Union de Trabajadores de Muelles (UTM).
The workers rejected this union because its actions denounce it as
an "anti-labor and pro-employer union", according to what Jaime
Lopez Roger, president of the Pro-Union Nacional Steering Commit-
tee, stated.
According to what Lopez Roger informed previously , the company
had discharged from their employment several workers for having
staged a stoppage in protest of the management 's refusal to pay them a
Christmas bonus.
Subsequently , and due to the combativeness displayed by the group,
the 12 dischargees were reinstated in their jobs.
"We shall remain firm in our position of giving our support to
Union Nacional de Trabajadores no matter what company pressures
we are subjected to. We were fired from our jobs once and our
combativeness and firmness forced them to reinstate us. We are
confident that victory will be ours", Lopez Roger ended up by saying."
Although as noted in my brackets , supra, the article reflects the surname
of the brothers as Figueroa , Jaime Lopez Roger acknowledged at the
hearing that the names of his brothers appeared in the article. Jaime's name,
as can be seen, appears correctly later in the article . Jaime also admitted at
the hearing that he had spoken to Emeric about some of the items appearing
in the article and that this conversation took place before the article
appeared
DYNETERIA, INC. 285
disagreeing with it, Mora told Rodriguez to tell the Lopez
Roger brothers to come to the office, or if they did not
wish to come to the office, he would give them 24 hours to
correct the statements in the article or else he would take
other action.
Rodriguez went out to the jobsite, as directed by Mora,
and spoke to Jaime Lopez Roger and Ruben Lopez Roger
(Francisco being absent that day). After Rodriguez had
repeated Mora's message, Jaime stated that he was aware
of what was in the newspaper article because "we" were
the ones who gave it to the newspaper. Jaime then declined
to speak to Mora but stated that Mora could come out and
speak to him. Jaime also told Rodriguez on this occasion
that Mora was a "son of a b-h."-10
Rodriguez then returned to speak to Mora and told him
of the'foregoing.11
At 3:30 that afternoon, the normal quitting time,
Rodriguez spoke to Jaime and Ruben Lopez Roger and
informed them that they no longer had work.
The following day, February 27, 1973, Jaime Lopez
Roger returned to the gate of the Naval Base and spoke to
Rodriguez and asked him for a letter of dismissal.
Rodriguez told Jaime Lopez Roger to wait until one was
prepared. At 8:30 -Rodriguez returned to the, gate and
handed Jaime Lopez Roger three identical letters, one each
for himself and his brothers Francisco and Ruben. Each
letter read as follows (as translated into English):
February 26, 1973
Messrs:
Francisco Lopez Roger
Ruben Lopez Roger
Jaime Lopez Roger
We certify that you are being permanently laid off
for the following reasons:
a. Insulting your employer.
b. Defaming your employer.
c. Developing strike problems during working hours.
d. Being disrespectful to your superior.
e. Charging and stating that your employer is perse-
cuting you which is not true.
f. For intervening politically in union matters and as
far as other things are concerned.
Very truly yours,
s/ Raul Mora
RAUL MORA
Representative
Dyneteria Inc.
Copy to:
Francisco and Ruben, as he was requested to do by
Rodriguez.
None of the three Lopez Roger brothers has been
reemployed by Respondent although Jaime and Francisco
voted challenged ballots in the Board-conducted election
in March 1973.
D. The Respondent's Reasons for Discharging the
Three Lopez Roger Brothers
In assessing the reasons why the Employer discharged
the -three Lopez Roger brothers, I will lay great stress upon
these reasons as explained by Mora in his testimony or in
documents he prepared. For, having found that Rodriguez
did not possess the authority to discharge employees, I
conclude that Mora is the only person with authority to
discharge maintenance and housekeeping employees. And,
I further find, based on Morals authorship of the warning
letters of February 22, 1973, and the discharge letters of
February 26, 1973, that he was, in fact, the Respondent
official who made and carried out the decision to terminate
the three Lopez Roger brothers.
In examining the reasons proffered for the discharges I
will first take the reasons presented in the discharge letters
and then proceed to other reasons advanced by Respon-
dent at the hearing.
1. From the discharge letters
"Insulting your employer" and "Being disrespectful to your
superior. " I conclude that these reasons are in fact
supported by the evidence. Thus , it is clear that Jaime
Lopez Roger called Mora a "son of a b-h" albeit not in
Morals presence. Since Rodriguez repeated to Mora all
other aspects -of Rodriguez' conversation with Jaime and
Ruben Lopez Roger on the morning of February 26, I also
conclude he informed Mora of the name calling in view of
the obvious importance of this remark. Rodriguez also
testified without contradiction that all three Lopez Roger
brothers talked back to him and to Mora on the, job. For
example, on the day after national election day (the day
after November 7, 1972) Rodriguez and Mora spoke to
several employees including the Lopez Roger brothers
about their absence from work the day before. Jaime told
Mora and Rodriguez on this occasion that he had not
come to work because he did not want to. The brothers
also "griped" on a number of occasions about the work
they-were assigned to do.
"Defaming your employer." As heretofore set forth, an
article appeared in the "Claridad" of February 25, 1973,
under the byline of Victor Emeric, which from its contents
could well be considered by Respondent as unfavorable to
it. And, as noted, Jaime Lopez Roger admitted speaking to
Mr. Francisco Lopez Roger Emeric about Respondent prior to the appearance of the
Mr. Ruben Lopez Roger article. Also, as I have found, the two Lopez Roger
Mr. Jaime Lopez Roger brothers present on February 26, 1973, told Rodriguez on
Jaime took the letters home and gave a copy to his brothers that date that they had given Emeric the material, which
ro These findings are based on the essentially undisputed testimony of
Rodriguez. Luris Lopez, who was present during part of the conversation,
stated only that Jaime did not make the remark while Luris Lopez was
present. Jaime did not deny calling Mora by this name in Rodnguez'
presence ; Jaime rather stated only that he had never "cursed" More
" Mora testified specifically he was told that the Roger brothers were
aware of the article and agreed with it.
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appeared in the article and they agreed with it. Rodriguez
reported this conversation back to Mora. While there is a
question, whether the Lopez Roger brothers knew that
Emeric was a reporter at the time they spoke to him, the
fact remains that they did speak to Emeric, an outsider,
about their employer and that their observations were
obviously viewed by Mora as uncomplimentary to Respon-
dent and to him personally. I conclude therefore that this
reason is likewise supported by the evidence and, in the
circumstances, that the newspaper article with its reference
to the union activities of Respondent's employees, particu-
larly the three Lopez Roger brothers, was the final straw in
Mora's mind which caused him to discharge the Lopez
Rogers, as will appear.
"Developing strike problems during working hours." All
three Lopez Roger brothers participated in the strike
against the Respondent in connection with the late bonus
checks in the latter part of December 1972 or early January
1973. They were in fact among the leaders of the strikers.
And the fact that this reason appears in the discharge
letters for each indicates unmistakeably Respondent's
awareness of their participation and leadership. I conclude,
therefore, that the record supports the conclusion that this
was one of the real reasons for their discharge.
"Charging and stating that your employer is persecuting
you which is not true." The only evidence apparently
bearing on this reason is the statement, adduced by counsel
for Respondent in his cross-examination of Jaime Lopez
Roger, that Jaime told Emeric that Mora had told
Rodriguez that he, Mora, "was waiting for us to commit
any fault so that he could throw us out." Neither
Rodriguez nor Mora denied Mora's instant threat. Accord-
ingly, I conclude that the threat was made 12 and any
repetition of it was true. This reason (that the Roger
brothers made an untrue statement about employer
persecution) is not supported by the record. More will be
said of this threat hereinafter.
"For intervening politically in union matters and as far as
other things are concerned. " This phrase-at least the use of
the word "politically"-may have lost some of its flavor as
translated into English. But it unquestionably refers to the
Lopez Roger brothers "intervening" in "union matters."
That the Lopez Roger brothers were union activists is
amply supported by the record as previously recounted.
And Mora's knowledge of these activities is evident not
only from this entry in the discharge letters but also his
admission that he was aware of the many discussions of the
Union by the Lopez Roger brothers when they came to
work each day and were on their way to the jobsite. In
these circumstances, I conclude that the union activities of
the Lopez Roger brothers constituted, in fact, one of the
reasons why Respondent discharged them.
i2 While Rodriguez' repetition of the Mora threat is, strictly speaking,
hearsay, the testimony in regard to it was adduced without objection. And I
am satisfied that the threat, when considered in the light of the prior and
subsequent incidents, is consistent with the inherent probabilities of the
entire sequence of events. The mention of the threat in the Emetic article
itself which was, of course, published before the charges herein were filed,
lends some support to the foregoing conclusion. Also Mora and Rodriguez
acknowledged that warnings were given the three brothers on different
occasions. In any event when hearsay evidence is admitted without
objection "it is to be given its natural probative effect as if it were in law
admissible" and, where not controverted, carries the force of substantial
Moreover, in a letter to the Regional Office for Region
24 of the Board, explaining Respondent's position regard-
ing the charges which had already been filed in this case,
Mora stated that the main reasons for discharging the
Lopez Roger brothers were "clearly explained" in an
attached copy of the same discharge letter given to each
which has previously been referred to.13
2. The other reasons advanced by Respondent at
the hearing for the discharge of the Lopez Roger
brothers
The alleged poor" quality of their work. At the hearing
Mora testified that Jaime and Francisco Lopez Roger were
"poor" workers in that they had to be transferred from job
to job based on the complaints of Rodriguez. More
specifically, Mora said Francisco was demoted from a
working foreman position, however this had occurred some
time before Francisco's discharge. Mora also said he had
warned all three brothers four or five times orally or in
writing (e.g., the letter of February 22, 1973) about their
poor work. Rodriguez gave, as an example of Jaime's poor
work, that Jaime and others had to be transferred from one
cleaning job because it was reported that the job was not
finished on time. Others were also transferred from this
assignment however but no others were shown to have
been discharged because of it.
In view of the nonspecific nature of the allegation of
their "poor" work and the lack of persuasiveness in the
example cited I am not satisfied that "poor" work was a
reason for the discharge of the three brothers. Moreover,
the only written warning put in evidence speaks of "bad
conduct" (not "poor work") and "bad comradeship"
which, although somewhat ambiguous, is consistent with
the "union activities" reason advanced in the letter of
discharge (viz, association with the Union, since it is
apparent from the discharge letters that the Employer was
opposed to such association).
Tardiness of the three brothers. There is testimony by
Mora, denied by Jaime Lopez Roger, that Jaime came to
work late on numerous occasions and there is also evidence
that Francisco was late. I do not find that tardiness played
a part in the discharges. The brothers were not shown to
have been warned about it, it was not mentioned in the
discharge letters and other employees have been late,
according to Rodriguez, but no one else was shown to have
been discharged for this reason.
The political discussions of the Lopez Roger brothers at the
job. While Rodriguez testified that the Lopez Roger
brothers engaged in frequent political discussions at work
evidence sufficient to support a finding . Local 84, International Association
of Bridge, Structural and Ornamental Iron Workers, AFL-CIO (South Texas
Building Company), 129 NLRB 971, 979 (IR fn . 12 and cases cited therein).
13 In view of the discharge letter and this letter to the Board, I do not
credit Mora's self-serving declaration at the hearing that he did not
discharge the Lopez Roger brothers because of their union activities. Nor
do I assign any weight to his belated attempt in the instant letter to the
Board to explain that this last reason was their -political" (and not their
"union") activities as each discharge letter states. I will, however, consider
their alleged "political" activities as a separate reason.
DYNETERIA, INC. 287
and had been warned about it, I fwd no mention of this
reason in Mora's testimony.14 Further this reason is not
mentioned in the discharge letters.
Distribution of the newspaper "Claridad" at the jobsite.
Mora stated that the three brothers were passing out
"Claridad" on February 26, 1973. Rodriguez testified that
they had brought this newspaper to the site that day and
previously at the tune of the work stoppage over the late
Christmas bonus checks. Jaime Lopez Roger denied
passing out "Claridad" at the site. I find it unnecessary to
resolve this conflict in the testimony because I do not
believe this matter played a part in the discharges. For
Mora did not assign this as a reason at the hearing nor did
he mention it in the discharge letters.15
Alleged threats by one or all of the brothers "to get Mora"
outside the gate. Mora testified that he was told by
Rodriguez that all three Lopez Roger brothers stated that
they would "see him on the street in Vieques and that they
were going to get" him. Mora stated that these threats were
reported to him as occurring at the time of the Christmas
bonus strike and also after the discharges on February 26.
Rodriguez testified first that Jaime Lopez Roger said he
"was going to see Mora outside to fix him," later that
Jaime said he would "get Mora outside," and that these
threats were made at the time of the Christmas bonus strike
and again on the day of discharge at about 11 o'clock in
the morning (before the discharges took place). However,
elsewhere in his testimony, Rodriguez stated that the
morning conversation between the two brothers (who were
present that day) and Rodriguez consisted of a discussion
of the "Claridad" article of Emeric, Jaime's suggestion that
Mora come to speak to them and Jaime's calling Mora a
"son of a b-h." Rodriguez did not mention that the threat
was made in this conversation although pressed by the
General Counsel to answer the question whether anything
else was said. Jaime Lopez Roger dewed threatening "to
get Mora outside."
I find it unnecessary to unwind this credibility knot,
because I do not' find that the alleged threat or threats
constituted a reason for the discharges. For, taking the
testimony of Mora, who effected the discharges, the first
threat had occurred some 2 months before and was
obviously ignored. The second threat, per Mora, was made
after the discharges. Finally the threats are not mentioned
in the discharge letters.
Concluding Findings
I have found that the only reasons for the discharges
which are supported by the record are: (1) the insulting
and disrespectful conduct of the brothers, particularly
14 In the absence of testimony by Mora on this subject I attach no weight
to his letter to Regional Office on March 11 in which he mentions this
"reason" and, in any event, I have found the March I 1 letter to have been a
belated attempt to avoid the implication in each discharge letter that the
Lopez Roger brothers were discharged because of their union activities.
15 Again I attach no weight to Mora's reference to this matter in his letter
to the Regional Office for the same reasons mentioned in Ins 13 and 14.
16 N.L R.B. v Washington Aluminum Co., 370U-S. 9, 15(1962); N LR.B.
v. Mackay Radio & Telegraph Co, 304 U.S. 333, 344
17 Notwithstanding the language of Emetic's newspaper article , it is not
clear from the entire record whether the three brothers were briefly
discharged at the time of the Christmas bonus strike . Further no unfair
Jaime; (2) the comments by Jaime to Emeric at least some
of which were published in "Claridad," (3) the participa-
tion of the brothers in the Christmas bonus strike and (4)
their union activities. Of these four reasons it is clear that
at least two reasons, advanced by Respondent in the
discharge letters and supported by other evidence, were
unlawful, i.e., the brothers' participation in the Christmas
bonus strike and their subsequent union activities.
Respondent argues that the strike was unlawful because
it was unjustified, i.e., unnecessary, because the checks
were on their way. The gist of Respondent's argument thus
seems to be that the strike was not a labor dispute because
it was ill-advised or unwise. But this type of contention has
been rejected by the Supreme Court on at least two
occasions.16 Hence I reject it here . Moreover, the strike
was not shown to be violent nor was it in breach of a
collective-bargaining agreement. I, therefore, conclude that
the Christmas bonus strike was a legitimate labor dis-
pute.17
Insofar as the brothers' union activities are concerned,
the discharge letters do not specify whether Respondent
was discharging them because of their union activities
outside the base or their union activities on the base. But
even if Respondent were referring to the activities on the
base, I note that there is no evidence that Respondent had
a no-solicitation rule, nor that Respondent through Mora
or Rodriguez had warned the brothers not to discuss the
Union at work, nor, in any event, that discussion of the
Union by the brothers when they arrived at work or were
being taken out to their work sites (the times described by
Mora when he was aware such activities occurred), in any
way interfered with their own work or the work of their
fellow employees. It is obvious that in these discussions the
three brothers were taking the side of the Union.18
I conclude on the basis of the foregoing, particularly the
discharge letters, that Mora was long irked by the
participation of the three brothers in the Christmas bonus
strike and their subsequent efforts to encourage their
fellow employees to join the Union. And, indeed as Mora
told Rodriguez, he, Mora, was looking for the three
brothers to "commit" a "fault" so that he could "throw"
them "out." The publication of Emeric's newspaper article
and its mention of the participation of the three brothers in
union activities supplied Mora with the "fault" he was
looking for to carry out his threat.
I find on the basis of the foregoing, that Respondent's
discharge of three Lopez Roger brothers was based in
substantial part on their union activities and that such
discharges were therefore in violation of Section 8(a)(3)
and (1) of the Act.19
I further find, on the basis of the foregoing, that the
labor practices are alleged based on any discharges at that time; hence I
make no findings in this regard.
18 Respondent points out in its brief that Ruben Lopez Roger has no
further interest in this proceeding because he did not come to the hearing. I
do not deem his absence to be of any significance . For I am aware of no
requirement-and Respondent cites none-for an individual to appear at
an unfair labor practice hearing dealing with alleged discrimination against
him.
W James Hoomatan d/b/a Chicago Master Mattress and Furniture
Company, 196 NLRB 579: N L.R B. v. Great Eastern Color Lithographic
Corp., 309 F 2d 352, 355 (C A. 2,1962 ), enfg . 133 NLRB 911, cert. denied
373 U.S. 950 (1963).
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge of the three Lopez Roger brothers was also based
in substantial part upon their participation in the Christ-
mas bonus strike. Since this strike was a concerted activity
protected by Section 7 of the Act, and since a substantial
reason for their discharge was because they participated in
this strike, `I also find, based on this entirely separate
reason, that their discharges were in violation of Section
8(a)(1) 20 of the Act 21
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE
UPON COMMERCE
The activities of Respondent, set forth above, occurring
in connection with the operations of Respondent described
in section I, above, have a close, intimate and substantial
relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
The recommended order will contain the conventional
provisions involving findings of interference, restraint, and
coercion and unlawful discharge in violation of Section
8(a)(3) and (1) of the Act. This will require Respondent to
cease and desist from the unfair labor practices found and
to post a notice to that effect in English and in Spanish
which will also state the affirmative action Respondent will
be required to take to remedy its discharge of the three
Lopez Roger brothers. Thus, Respondent will be required
to offer Jaime E. Lopez Roger, Francisco Lopez Roger,
and Ruben Lopez Roger reinstatement to their former or
substantially equivalent positions without prejudice to their
seniority or other rights and privileges. Each will be made
whole for any loss of earnings he may have suffered by
reason of the discrimination against him by payment to
him a sum of money equal to that which he would have
earned from the date of the initial discrimination against
him to the date of the offer of reinstatement, less net
earnings, if any, during such period, to be computed in the
manner prescribed in F. W. Woolworth Company, 90 NLRB
289, with 6 percent interest thereon as prescribed by Isis
Plumbing & Heating Co., 138 NLRB 716.
It will also be recommended, in view of the nature of the
unfair labor practices in which Respondent has engaged
(see N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536), that
Respondent be ordered to cease and desist from infringing
in any manner upon the rights guaranteed employees by
Section 7 of the Act.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce and the Union
is -a labor organization all within the meaning of the Act.
2. By discharging Jaime E. Lopez Roger, Francisco
20 N.L.R B v. Washington Aluminum, supra; Carlson Corporatio , 195
NLRB 218 (TXD), enfd. 83 LRRM 2392 (C.A. 1, 1972) (not reported by the
court).
21 Respondent 's motion to dismiss the complaint made near the
conclusion of the hearing and taken under advisement by me at that time, is
hereby denied, consistent with my findings, supra.
22 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
Lopez Roger, and Ruben Lopez Roger, in each instance
because of their activities on behalf of the Union, the
Respondent has engaged and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of
the Act.
3. By discharging Jaime E. Lopez Roger, Francisco
Lopez Roger, and Ruben Lopez Roger, in each instance
because of their participation in concerted activities
protected by Section 7 of the Act, Respondent has engaged
in and is engaging in unfair labor practices within the
meaning of Section 8 (a)(l) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning. of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this proceeding, and pursuant to
Section 10(c) of the Act, I hereby issue the following:
RECOMMENDED ORDER22
Respondent, Dyneteria, Inc., its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in, or activities in behalf
of, Union Nacional de Trabajadores, or in any other labor
organization, by discriminating in regard to hire and
tenure of employment or in any other manner in regard to
any term or condition of employment of any of Respon-
dent's employees in order to discourage union membership
or activities.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed in
Section 7 of the Act, except to the extent such rights may
be affected by an agreement requiring membership in a
labor organization, as authorized in Section 8(a)(3) of the
Act, as amended.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer Jaime E . Lopez Roger, Francisco Lopez Roger,
and Ruben Lopez Roger immediate and full reinstatement
to their former or substantially equivalent positions,
without prejudice to their seniority or other nghts and
privileges and make them whole for any loss of pay they
may have suffered as the result of the discriminatory
discharges, in the manner set forth in "The Remedy"
section herein.
(b) Preserve and, 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 amount of backpay due under the
terms of this Order.
(c) Post at its place of business in Vieques, Puerto Rico,
copies of the attached notice marked "Appendix" 23 and
copies of a Spanish translation of the same notice. Copies
findings, conclusions, recommendations and Recommended Order herein
shall, as provided in Section 102.48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions and order, and
all objections thereto shall be deemed waived for all purposes
23 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals. the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
DYNETERIA, INC. 289
of this notice, in English and Spanish, on forms provided
by the Regional Director for Region 24, after being duly
signed by Respondent's representative, shall be posted by
it 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.
(d) Notify the Regional Director for Region 24, in
writing within 20 days of the receipt of this Order, what
steps Respondent has taken to comply herewith.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
labor organization, as authorized in Section 8(a)(3) of
the National Labor Relations Act, as amended.
WE WILL NOT discharge you, or take other reprisal
action against any of you, because you engage in
legally protected concerted activities or because you
join, support, or engage in organizational activities on
behalf of Union National de Trabajadores, or any
other union.
WE wiLL offer to reinstate Jaime E. Lopez Roger,
Francisco Lopez Roger, and Ruben Lopez Roger to
their respective jobs with full seniority and all other
rights and privileges as the Board has found that they
were discharged because they engaged in protected
concerted activities and because they supported the
organizational campaign of the above-named union.
WE WILL also make up all pay Jaime E. Lopez
Roger, Francisco Lopez Roger, and Ruben Lopez
Roger lost because of their discharge with 6 percent
interest.
DYNETERIA, INC.
(Employer)
After a trial at which all sides had the chance to give
evidence it has been decided that we, Dyneteria, Inc., have
violated the National Labor Relations Act and we have
been ordered to post this notice.
The National Labor Relations Act gives you, as
employees, certain rights, including the right to engage
in concerted activities, and the right to self-organiza-
tion, to form, join or help unions, and to bargain
through a representative of your own choosing.
Accordingly, we give you these assurances:
WE WILL NOT do anything which interferes with your
rights above, except to the extent that said rights are
affected by an agreement requiring membership in a
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, Pan Am Building, 7th Floor,
255 Ponce de Leon Avenue, Hato Rey, Puerto Rico 00919,
Telephone 809-622-0225.