Fibers International Corp.

National Labor Relations Board - Board Decisions

Mar 19, 1970

181 N.L.R.B. 731 (N.L.R.B. 1970)

FIBERS INTERNATIONAL CORP. 731
Fibers International Corporation and Oil , Chemical
and Atomic Workers International Union,
AFL-CIO. Case 24-CA-2658
March 19, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On November 10, 1969, Trial Examiner James
M. Fitzpatrick , issued his Decision in the
above-entitled proceeding, finding that the
Respondent had engaged in certain unfair labor
practices alleged in the complaint and
recommending that it cease and desist therefrom
and take certain affirmative action , as set forth in
the attached Trial Examiner ' s Decision . The Trial
Examiner also found that the Respondent had not
engaged in certain other unfair labor practices
alleged in the complaint and recommended that the
complaint be dismissed as to them . Thereafter, the
General Counsel filed limited exceptions to the Trial
Examiner ' s Decision . The Respondent filed
exceptions to the Trial Examiner ' s Decision and a
brief in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds no
prejudicial error was committed . The rulings are
hereby affirmed . The Board has considered the Trial
Examiner ' s Decision , the exceptions and brief, and
the entire record in this case , and hereby adopts the
findings , conclusions , and recommendations of the
Trial Examiner except as to his conclusion and
recommendation with regard to the conduct of
supervisor Chiesa.
The Trial Examiner found , inter alia , that certain
remarks made by supervisor Chiesa to employee
Fidel Colon were not coercive and not in violation
of Section 8(a)(1) of the Act . We do not agree.
In the early morning of January 29 , 1969, Chiesa
was present in a local bar together with employees
Colon and Juan Mendez . According to Colon's and
Mendez' credited testimony , Chiesa remarked to
Colon that:
I [Colon] had a good future with the
company because I was a good leader with my
co-workers and besides I knew all I had to do in
my job and that if I was with,,the Union it would
be prejudical to me and that I had better
opportunities with the company and he asked me
to leave the Union and stay with them.
In the course of a later conversation, that same
date, when the scene had shifted to another bar,
Chiesa in response to a question from Colon,
regarding another employee who was the
acknowledged leader in the union movement, said
that the employees could not count on de Jesus
becoming the president of the Union since he would
not be at Fibers, a prophecy that was fulfilled the
same day.' In our opinion, Chiesa's remarks were
clearly intended to warn Colon, one of the three
most active union supporters, of the consequences of
his union support, holding out also a promise of
future benefits if Colon were to abandon the Union
and "stay with them " Even though Chiesa's
remarks were made in the ambience of a bar, it is
most unlikely that Colon would fail to take note of
the implied promise of benefit if he abandoned the
Union or disregard the warning of reprisal if he did
not. Chiesa was no minor supervisor, whose remarks
would not necessarily reflect company policy.' In
these circumstances, we find Chiesa's statements
were clearly coercive within the meaning of the Act
and violated Section 8(a)(1) thereof.' Accordingly, in
order to remedy all effects of the Respondent's
unlawful conduct, we shall modify the Conclusions
of Law and the Recommended Order.
ADDITIONAL CONCLUSION OF LAW
Substitute the following as paragraph number 3 of
the Conclusion of Law and renumber the subsequent
paragraph accordingly:
3. By urging its employees to abandon the
Union and indicating they would thereby progress
more quickly with the Company and that it would
be prejudicial not to do so, Respondent violated
Section 8(a)(1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, as
modified herein, and orders that the Respondent,
Fibers International Corporation, Ponce, Puerto
Rico, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial
Examiner's Recommended Order, as so modified:
1. Reletter paragraphs 1(a) and (b) to 1(b) and
(c), respectively.
2. Insert as paragraph 1(a) the following:
"Urging its employees to abandon Oil, Chemical
and Atomic Workers International Union,
The Trial Examiner found the discharge violated Section 8(aX3) and (1)
of the Act.
'The evidence shows that Chiesa was a supervisor over four foremen, one
of whom was Colon's foreman
'We do not think that the N L R B v M & W Marine Ways, Inc. 411
F 2d 1070 (C A 5), cited by the Trial Examiner stands for the proposition
that coercive remarks, even though made in a friendly atmosphere, can
never constitute a violation of Section 8(a)(1) of the Act Cf Metropolitan
Life Insurance Company , 166 NLRB No 53
181 NLRB No. 93
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AFL-CIO or any union of their choice and
indicating that they would thereby progress more
quickly with the Company and that it would be
prejudicial not to do so."
3. Delete from the Appendix the title "Notice to
Members" and substitute therefor the title "Notice
to Employees."
4. In the Appendix , inserting after the second
indented paragraph , the following paragraph-
WE WILL NOT urge our employees to abandon
Oil, Chemical and Atomic Workers International
Union , AFL-CIO, or any union of their choice
and indicating they would thereby progress more
quickly with the Company and that it would be
prejudicial not to do so.
TRIAL EXAMINER'S DECISION
plant. In October 1968 the Union began organizing
among the employees, including the handing out of union
leaflets, the holding of organizational meetings, the
distribution of blank union authorization cards and the
obtaining of employee signatures on such cards Among
the employees themselves three were most active on behalf
of the Union, Ruben de Jesus Gomez (herein called de
Jesus), Fidel Colon (also known as Fidel Colon Morales),
and Fidel A. Franceschi. Of these three de Jesus was the
most active. In due course the Union petitioned the Board
for an election seeking certification as the representative
of respondent's production and maintenance employees.
On January 23 and 24 a Board election was held which
the Union won.' In advance of the election, union
supporters, including de Jesus, obtained the signatures of
a substantial number of employees on a paper.' Thereafter
and shortly before the election these signatures were
reproduced on a union handbill beneath a statement
indicating that the signatories were voting for the Union.,
STATEMENT OF THE CASE
JAMES M. FITZPATRICK, Trial Examiner: This
proceeding under Section 10(b) of the National Labor
Relations Act, as amended (the Act), was tried before me
at Ponce, Puerto Rico, June 18 and 19, 1969,' on a
complaint issued May 15, pursuant to charges filed
January 30, and respondent's answer to the complaint.
The questions presented are whether respondent violated
Section 8(a)(1) of the Act by promising to reward
employees if they would sign sworn statements that the
use of their signatures on a union handbill prior to a
Board election was unauthorized and by soliciting an
employee to abandon his support of the Union with the
assurance that he would advance himself with respondent
if he did so, and Section 8(a)(3) by discharging and
refusing to reinstate an employee because of his union
activity.
Upon the entire record, including my observation of the
witnesses and consideration of the brief submitted by
respondent, I make the following-
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Fibers International Corporation, respondent herein, is
a Delaware corporation doing business in Guayama,
Puerto Rico, where it operates a plant for the manufacture
of nylon fibers. During the year preceding the issuance of
the complaint it sold and shipped products valued at over
$50,000 to points outside Puerto Rico. Respondent
admits, and I find, that it is engaged in commerce within
the meaning of the Act.
IL THE UNION
The charging party, Oil, Chemical and Atomic
Workers International Union , AFL-CIO (the Union), is a
labor organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
During the period of time pertinent to this case
respondent employed about 640 employees at its Guayama
'All dates herein are 1969 unless otherwise indicated
B. Alleged Violations of Section 8(a)(1)
1. The request of Supervisor Ortiz
The complaint alleges among other things that
respondent violated Section 8(a)(1) of the Act when, on or
about January 28 supervisor Ibzan Ortiz requested
employees of his department to sign sworn statements that
the use of their signatures on a union handbill was
unauthorized, telling them that if they did so the
respondent would reward them with "certain
considerations."
Ortiz was an electrical foreman. He testified that after
the handbill referred to above appeared some of those
whose facsimile signatures were on it complained to him
they had signed for other purposes than indicated by the
appearance of the handbill. Included among these were
several who worked under him in the electrical
department 5
On the morning of January 27, the Monday following
the election, Ortiz testified he presided over a regular
safety meeting of his electricians. Someone had a copy of
the union handbill6 and the men were going over it
'At the time of the hearing herein objections to the election and to
conduct affecting the results of the election were pending before the Board
in the matter of Fibers International Corporation, Case 24-RC-3629 On
June 30 the Board ordered a hearing on one of the objections On August
5 respondent filed a motion herein that the Trial Examiner take judicial
notice of and/or admit a copy of said order directing a hearing as Resp
Exh No opposition having been made thereto, I hereby grant the motion
and identify said order in this proceeding as Resp Exh 14
'The exact nature of the document on which the signatures were
obtained is not apparent from the record before me, nor do I deem it
essential to the disposition of the issues here posed to determine its nature
'This handbill was in Spanish The English translation of the text
appearing above the signatures is as follows.
LET'S VOTE FOR THE UNION
WE, THE WORKERS OF FIBERS INTERNATIONAL, URGE
OUR FELLOW WORKERS TO FOLLOW THE WAY OF THE
UNION THIS IS NOT A MOVEMENT OF HATE NOR
RANCOR WE WANT FIBERS TO PROGRESS, BUT THAT A
REASONABLE PORTION OF SUCH PROGRESS GET TO US.
LET'S VOTE IN A BLOCK FOR THE UNION"
'Ortiz testified that the employees who complained to him were Luis A.
Cruz, Carlos Colon, Hector Luis Burgos , Carlos Rios, Pedro Angel
Simonetti, and E Melio Rivera Of these only Cruz and Colon were called
as witnesses
'One of the electricians , Gazehound Soto Cruet (herein called Soto),
testified that Ortiz had the handbill with the signatures of electrical shop
FIBERS INTERNATIONAL CORP. 733
identifying their names. Ortiz testified that since some of
them had said beforehand that they were interested in
signing a statement affirming that they had signed for
other purposes than the handbill, he told the electricians
at the meeting that those who had come to him could go
to the industrial relations department to make a
statement. He denied saying that the company would have
some consideration for those who did so.
On the other hand electrician Soto testified that Ortiz
said "that he knew exactly that some were not satisfied
because of the publication of the leaflet and that these
persons who were not satisfied could go by the main office
of Fibers to give a sworn statement or to sign it before a
lawyer. Then, when he saw that nobody replied, he said
that the company . . that those persons who would give
the sworn statements the company would have certain
considerations for certain persons." When asked if any
employee responded to this, Soto testified: "Then Carlos
A. Colon said that he was ready to go and then Cruz and
then when he (Ortiz) saw the negative attitude of the
balance of the group he said that about the considerations
that the company would have for the persons that went to
make the declaration, and he said that there would be no
reprisals against those that went."'
The testimony of Soto was the only evidence offered by
the General Counsel to establish what was said at the
electricians' meeting on January 27. As noted above,
Ortiz, called by respondent, denied making any promise.
Carlos A. Colon and Luis A. Cruz, both of whom were
present at the meeting and gave statements to respondent,
were called as witnesses by the respondent but were not
asked directly by either respondent or the General
Counsel whether Ortiz uttered the promise described by
Soto and denied by Ortiz.'
The testimony of Soto and Ortiz are not in essential
conflict as regards the meeting on January 27 except as to
whether Ortiz promised that the company would have
certain considerations for those who gave statements Both
impressed me as forthright and responsive witnesses, but I
think Ortiz had a better recollection. Soto seemed less
accurate on details. For example in the earlier part of his
testimony he was in error as to the days of the week and
the days of the month of the election at the plant. He also
erroneously placed the meeting of electricians which
occurred on January 27 as the day after the election when
in fact it was on a Monday following the election held the
previous Thursday and Friday He later with the help of
counsel corrected these mistakes. As between the two
witnesses I credit Ortiz. I note that the promise of benefit
which he allegedly uttered on January 27 was itself a
matter of detail, and Soto, the only witness who testified
in support of the allegation, had trouble accurately
recalling other details I note further that a number of
other potential witnesses present at the meeting were not
employees thereon circled in red. Ortiz testified he could have had the
handbill in his hand , but he did not remember making any marks on it. I
find the evidence insufficient to establish that Ortiz made any markings on
the handbill.
'When asked later to what the reference to reprisals referred , he testified
"for having signed the leaflets that had been published." The General
Counsel does not contend that respondent directly or by implication
threatened reprisals
'On January 29 , 2 days after the electricians ' meeting Ortiz excused
Cruz from work for the afternoon because of illness He received pay for
the entire day It does not appear , however, that this was an unusual thing
in the plant, and apart from the coincidence of time, there is nothing to
indicate that this was a reward for having given the company a statement
I find this was not a reward for the statement he gave
called to testify with respect to it, and the testimony of
Carlos A Colon and Luis A Cruz, who were among
those present, does not affirmatively support the
allegation. Accordingly, I find that a preponderance of the
evidence fails to establish that on or about January 28
Ortiz on behalf of respondent promised the employees in
his department that they would be rewarded with "certain
considerations" if they gave statements to respondent
concerning the use of their signatures on a union leaflet.
2. Statements of Supervisor Chiesa
The complaint also alleges that respondent violated
Section 8(a)(1) of the Act when in January its supervisor
Jose Chiesa (also known as Jose Chiesa Fernandez)
solicited an employee who was one of the active leaders in
the union movement to abandon his support of the Union
while telling him that he would better advance himself in
his job opportunities with the respondent if he did so.
In January Chiesa was a shift supervisor with four
foremen working under him. Fidel Colon was a
rank-and-file employee under one of these foremen. In the
early hours of January 29 shortly after getting off work at
midnight he and fellow employee Juan Mendez went to
the Monte Carlo bar next to the plant. They were joined
by Chiesa who also had just finished work and a friend of
his named Estrada. They remained in each other's
company for another hour or two, talking, drinking rum
highballs, and playing dominoes. Both Mendez and Fidel
Colon testified that Chiesa urged Fidel Colon, who was
one of the three employees most active in the union
movement, to abandon the Union because he would
progress more rapidly with the company if he did so
Mendez testified "at that place Mr. Chiesa urged Mr.
Colon to abandon the union movement, that he was a boy
with a lot of leadership and that he would get more out of
the company." Fidel Colon testified in somewhat more
detail as follows: "He (Chiesa) advised me that I had a
good future with the company because I was a good
leader with my co-workers and besides I knew all I had to
do in my job and that if I was with the Union it would be
prejudicial to me and that I had better opportunities with
the company and he asked me then to leave the Union
and stay with them." Chiesa denied making such
statements.
Eventually they left the Monte Carlo bar because it was
closing. Although none of them had any money, Fidel
Colon and Mendez wished to continue the party, so
Chiesa invited them to follow him in Fidel Colon's car to
his hometown of Caguas.9 The caravan proceeded to
Caguas where they first went to a bar where Chiesa
bought a quart of rum on credit. Then because that bar
was closing Chiesa invited them to his home where they
had a couple of drinks and then left. While still at the bar
in Caguas, according to Mendez and Fidel Colon, Fidel
Colon asked Chiesa's opinion regarding prospective
candidates for the presidency of the Union According to
Mendez, Chiesa replied that the only candidate was Fidel
A. Franceschi (also one of the three employees most
prominent in the union movement), and when Mendez and
Fidel Colon indicated that their preference was for de
Jesus, he said that they could not count on him.
According to Fidel Colon, Chiesa also said that de Jesus
was not going to be at Fibers Chiesa denied discussing
with them the subject of de Jesus or who might be
president of the Union.
'The trip from Guayama to Caguas is about 35 miles over mountain
roads
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With regard to both conversations, I credit Fidel Colon
and Mendez rather than Chiesa because his testimony was
more general than theirs. In his denial he simply
categorically denied making statements attributed to him
by them but did not testify as to what he did say. On the
other hand Fidel Colon and Mendez were more specific
about the whole course of events on the night in question
and, although their recollections were not identical, I find
they had a better recall of what transpired than did
Chiesa. Accordingly, I find that Chiesa did urge Fidel
Colon to abandon the Union on the ground that he would
thereby progress more quickly with the company I also
find that with respect to the union presidency Chiesa said
that the employees could not count on de Jesus and also
that he would not be at Fibers
3. Allegations of the complaint dismissed at the
hearing
The complaint also alleged that respondent's president
in a speech to the employees reminded them of benefits
they had received from respondent in the past and
informed them they would receive additional benefits in
the future, and that such conduct violated Section 8(a)(1)
of the Act When at the opening of the hearing the
General Counsel indicated he would offer no evidence in
support of this allegation, I granted respondent's motion
to strike it from the complaint I reaffirm that ruling here
In addition the complaint alleged that respondent
violated Section 8(a)(1) when its supervisor Del Toro'" on
March 10 informed an employee that those employees
who had supported the Union were blacklisted by
respondent, that they would get no promotions, and that
eventually they would be eliminated. In support of this
allegation the General Counsel offered the testimony of
Jose Alberto Guitierrez who testified that he had been an
employee of respondent for a period of about 6 months
until November or December 1968, and that in March in
a pizza palace in Guayama he had a conversation with
Del Toro who stated that employees who took part in the
union campaign were to be discharged. It further appeared
from his testimony, however, that at the time of the
conversation Guitierrez himself was not in fact an
employee of the company. No other persons employed by
the company were present during the conversation and the
evidence indicated no way in which Guitierrez would be a
conduit for the communication of such statements to
company employees. Del Toro did not testify. At the
conclusion of the General Counsel's case-in-chief
respondent moved to dismiss the allegation of the
complaint on the ground that the General Counsel had
failed to prove a prima facie violation of the Act. I
granted the motion at that time and dismissed that
allegation from the complaint. I now reaffirm that ruling.
The testimony of Guitierrez was allowed to stand in the
record with regard to company motive in discharging de
Jesus.
C. The Discharge of de Jesus
The complaint alleges that respondent violated Section
8(a)(3) of the Act by discharging de Jesus on January 29
because of his leadership in the union movement and since
"The complaint alleged and the answer admitted that at all times
material Del Toro was a supervisor
that time refusing to reinstate him Respondent admits the
discharge and refusal to reinstate him, but asserts that it
had good cause.
De Jesus was employed as a maintenance electrician
under the immediate supervision of foreman Ortiz. He
had a good record with the company. As noted above, he,
Fidel Colon and Fidel Franceschi were the most active
employees organizing for the Union." Of the three, only
de Jesus was discharged At the time of his discharge the
company was cognizant of his union leadership.
The record is clear that some employees whose
facsimile signatures appeared on the union handbill
distributed shortly before the election resented this
disclosure of their union adherence. At least two of those
who were unhappy about it, Carlos A Colon and Luis A.
Cruz, both electricians, complained to their foreman Ortiz
and on about January 27 gave written statements covering
the matter to the company's attorney 11 The fact that Cruz
gave such a statement to the company became a matter of
controversy between him and de Jesus.
Around 4 30 on the afternoon of Tuesday, January 28
as the maintenance electricians who had just gotten off
work were entering the company parking lot from the
plant, de Jesus confronted Cruz about his giving the
statement to the company De Jesus started the
conversation'by taking hold of Cruz' right arm and asking
him if he had made a statement for the company. The two
then got into an argument and de Jesus became somewhat
vehement. According to him he accused Cruz of "not
telling the truth," and made remarks impugning Cruz'
manhood. According to Cruz, whom I credit, the
argument continued as he got into his car at which point
de Jesus took hold of his left arm. Two coworkers who
rode with Cruz, Miguel Rivera and Carlos A. Colon, both
corroborated his testimony that de Jesus used obscene
language, calling him a homosexual and lacking sufficient
manhood to stand behind what he had done. Both Cruz
and Rivera testified that the last thing de Jesus said to
Cruz was that they would see each other."
De Jesus did not hurt Cruz when he took hold of his
arm. But Cruz who on the stand appeared to be a timid
man, was frightened. He took de Jesus' closing remarks as
an assertion that in the future de Jesus would catch him
outside the plant and do him harm.
De Jesus denied telling Cruz he was a homosexual or
grabbing him by the arm or telling him he would take
care of him later In view of the other evidence relating to
these matters I do not credit de Jesus' denials.
At the end of the argument de Jesus got into a car
driven by fellow employee Soto. As Cruz was driving out
of the parking lot Soto's car blocked the way. It is not
clear from the evidence what caused this. Soto denied that
it was intentional. But Cruz in his frightened state of mind
thought it was intentional
It was in the early hours of the following morning that
supervisor Chiesa in discussing the presidency of the
"De Jesus was involved in union activity from the beginning of the
organizing campaign in October 1968 He solicited over 70 employee
signatures on union authorization cards, attended numerous union meetings
and frequently spoke at them , and participated in two radio programs
sponsored by the Union. His name appeared on several union handbills
He served as union observer at the Board election on January 23 and 24,
and thereafter signed the certificate of conduct of election
"The text of these statements does not appear in the record before me
"The above finding of what transpired in the parking lot is based on the
collective testimony of Cruz, Rivera, and Carlos A Colon, whom I credit
Jorge Colorado Malave, another coworker who rode with Cruz , did not
testify
FIBERS INTERNATIONAL CORP. 735
Union with Mendez and Fidel Colon asserted that they
could not count on de Jesus and that he would not be at
Fibers The record does not reveal whether Chiesa then
knew of the parking lot incident
The day after the parking lot incident Cruz and his
fellow riders signed a written report on the incident which
was then delivered to the company Later that day de
Jesus was called into the office of a Mr. Gray, his
supervisor, and according to de Jesus accused of having
insulted someone in the parking lot the day before and,
with Soto, of having blocked the exit to the parking lot.
He denied it and demanded to know who had accused
him. Gray said he did not need to know, and fired him on
the spot.No real effort was made to get de Jesus' version.'
Soto was then called in and given a verbal reprimand
for blocking the way. Industrial relations supervisor
Guerrero testified that de Jesus was discharged for using
abusive language to another employee, for grabbing his
arm, and for threatening him.
D Company Discipline in Similar Situations
In support of its defense that it fired de Jesus for cause
and that its action was consistent with disciplinary action
taken in other cases, the respondent offered evidence of
action it had taken in six other situations during the
period of about a year from June 1968 through May 1969.
In sum this evidence indicated that one employee was
discharged for physically attacking a supervisor in the
parking lot, two employees were fired for fighting with
each other in the plant work area; one employee was
discharged for physically attacking the sergeant of the
security guard in the warehouse; a supervisor who drew a
knife on an employee in the corridor approaching the
plant cafeteria was given a written reprimand and the
other employee involved who had responded by picking up
a pole was given a verbal reprimand, both on the theory
that they were old friends who were kidding around with
each other; one employee was discharged for
insubordination and using abusive and offensive language
to his supervisors on the job; and one employee who was
discharged for threatening other employees in the plant
with a knife. The General Counsel offered evidence of a
seventh situation where a foreman and a rank-and-file
employee got into an argument in the plant cafeteria over
the merits of the soup. The foreman attempted to strike
the other employee. The company investigated but did not
discipline either man. No one contends that these were the
only occasions on which employees were disciplined during
that year, and in fact in view of the size of the work force
it is only reasonable to infer that there were other
occasions and other grounds on which employees were
disciplined, at least in some minor respects.
E. Discussion
the Act on that occasion
With respect to the statements which I have found
above were made by supervisor Chiesa to employees
Mendez and Fidel Colon in the early hours of January 29,
I note that they were made casually in the course of
friendly conversation in or around barrooms where they
were engaged in social drinking. The talk was unplanned,
informal, and noncoercive. In fact Chiesa's comment
regarding de Jesus' prospects for union presidency was in
response to a question put by Fidel Colon. In these
circumstances I find that even though Chiesa made the
statements they do not amount to a violation of Section
8(a)(1) of the Act. N L R B. v M & W Marine Ways,
Inc, 411 F.2d 1070 (C A. 5)
The conduct of de Jesus in the parking lot on January
28 warranted some kind of disciplinary action. It is fair to
say that he spoke to Cruz in angry abusive terms.15
Moreover, in view of his ill-tempered language
emphasized by twice taking hold of Cruz' arm, his parting
words indicating that they would see each other in the
future was, in context, reasonably construed as a threat of
future bodily harm." But even though the company may
have had a basis for disciplining him, the question to be
decided here is whether it fired de Jesus, who otherwise
had a good record with the company, because of
misconduct or because of his union activities
I find that in discharging de Jesus the company was
motivated by a desire to discriminate against him because
of his union leadership In arriving at this finding I have
weighed various factors in the evidence. Among these is
the fact that he was the outstanding union activist among
the employees. By such activity he of course did not
become immune from normal discipline as an employee.
Nevertheless, the discharge of the most active union
adherent is a coincidence which requires close scrutiny of
the employer's motivation. There is some evidence
although not a great deal, of company union animus I
note particularly the statements of supervisor Chiesa to
Mendez and Fidel Colon in the early hours of January 29,
the day on which de Jesus was discharged His urging of
Fidel Colon to abandon his support of the Union on the
ground that he would fare better with the company, tends
to indicate a managerial attitude disfavoring the Union.
And his later comments regarding the union presidency to
the effect that the employees could not count on de Jesus
and that he would not be there suggest that de Jesus'
departure was a foregone conclusion. In addition the
March statements of supervisor Del Toro to ex-employee
Guit ►errez, although substantially after the fact, indicate a
strong antiunion attitude at that time and certainly
support the inference that the company had a continuing
antiunion attitude already in esse at the time of the
discharge of de Jesus.
Another symptomatic aspect of the situation is the
one-sided investigation of the parking lot incident. No
As I have found above that a preponderance of the
evidence fails to establish that supervisor Ortiz on January
28 promised employees they would be rewarded with
certain considerations if they gave statements to the
company concerning the use of their signatures on a union
handbill, I find there is insufficient evidence on which to
base a finding that respondent violated Section 8(a)(1) of
"Although Gray fired him, de Jesus was also seen sometime later by
industrial relations supervisor Guillermo J Guerrero who asked him if he
had anything to say De Jesus answered no, that he would speak to the
proper authorities
"De Jesus himself must have thought his conduct was at least
questionable In connection with the Region's investigation of the charge
which initiated this proceeding , he gave five pretrial affidavits dated
January 30 (the day the charge was filed ), February 17, February 19 (two
affidavits), and March 13 Only in the March 13 affidavit did he mention
anything about the parking lot incident of January 28 Yet 3 or 4 days
after his termination on January 29 he on his own asked at least three
other employees to give statements to the effect that the incident involved
no violence
"At my invitation the parties introduced evidence concerning the level of
profane and obscene language among employees in the plant In this
regard I find that rough language was not uncommon among respondent's
employees
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
effort was made to obtain de Jesus' side of the story prior
to his discharge When on the afternoon of January 29 he
was called into supervisor Gray's office and accused of
improper conduct in the parking lot, he denied acting
improperly and sought to learn who his accusers were.
Instead of getting his side of the story Gray fired him on
the spot At that time, therefore, his fate was already
sealed and the circumstances suggest that the company
was not interested in broadening its investigation along
lines which might clear him.
Both the General Counsel and respondent offered
evidence of disciplinary action in comparable situations.
In five of the seven incidents on which evidence was
offered, the employees involved were discharged. But four
of these discharge cases involved gross violence; one
threats with a knife in a work area and the other three
actual physical attacks on others. In the one discharge
case which did not involve violence the employee was
found to have been both insubordinate and to have used
abusive and offensive language to his supervisors on the
job. In the two other incidents on which evidence was
offered the participants were not discharged. One of these
was the soup controversy in the cafeteria in which a
foreman swung on another employee. Neither was
disciplined. In the other incident the participants were
only reprimanded after having been -involved in what other
employees considered a serious altercation in the plant in
which a supervisor pulled a knife and a rank-and-file
employee picked up a pole to defend himself. On that
occasion the company was tolerant enough to conclude
that the participants were only kidding and let them off
with reprimands. The misconduct in these last mentioned
incidents seems more serious to me than the misconduct
of de Jesus The present case involved only some hot
words between two, rank-and-file employees in the parking
lot during which one employee twice took hold of the arm
of the other, actions which reasonably construed cannot be
considered a physical attack, and followed by an
ambiguous threat that he would see the other at a later
time. No weapons were involved No physical attack was
then involved. While I do not question the company's
right to discipline an employee under such circumstances,
when its action is compared with what it has done in
allegedly comparable circumstances it appears
heavyhanded Why did the company find it necessary to
discharge de Jesus for less violent conduct than involved
in the soup episode or the knife and pole episode" In the
circumstances here presented I find that it was looking for
a way to get rid of him, and when he misbehaved in a
manner which might be expected to bring down on his
head some modest disciplinary action, it seized the
opportunity to go all the way and discharge him Put
another way, I think that if he had not been the leading
union activist, he would have been disciplined by some
means less than discharge This conclusion is supported by
the testimony of industrial relations supervisor Guerrero
who made it clear that they carefully considered the case
of de Jesus in order to make sure that they had enough on
him to fire him " Moreover, the record suggests that
because of his union leadership de Jesus was held to a
higher standard of conduct than other employees.18
Considering all these circumstances, and although the
matter is not free from doubt, I find that the discharge of
de Jesus and subsequent failure to reinstate him were
discriminatorily motivated and, therefore, were in
violation of Section 8(a)(3) of the Act
"When asked why de Jesus was not suspended pending investigation of
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE'
Those activities of respondent found to be unlawful, as
set forth in section III, above, occurring in connection
with its operations described in section I, above, have a
close, intimate, and substantial relationship to trade,
traffic, and commerce between Puerto Rico and the
several States and foreign countries, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that respondent engaged in unfair labor
practices in violation of Section 8(a)(3) of the Act, I
recommend that it cease and desist therefrom and take
certain affirmative action designed to effectuate the
policies of the Act, including that it offer de Jesus
immediate, full, and unconditional reinstatement to his
former or substantially equivalent position, without
prejudice to his seniority and other rights, privileges, or
working conditions, and make him whole for any loss of
earnings suffered by reason of discrimination against him
by paying him a sum of money equal to the amount he
would have earned from the date of the discrimination to
the date respondent offers him reinstatement, less his net
earnings during that period in accordance with the Board's
formula stated in F. W Woolworth Company, 90 NLRB
289, with interest thereon at the rate of 6 percent per
annum as set forth in Isis Plumbing & Heating Co , 138
NLRB 716, and that it make records available to Board
agents in connection with compliance therewith, and post
appropriate notices in both English and Spanish. The
complaint does not allege and I have not found that the
discriminatory discharge of de Jesus violated Section
8(a)(l) as well as 8(a)(3) of the Act: Nevertheless, it is
well established that discrimination which violates Section
8(a)(3) of the Act also constitutes interference with,
restraint, or coercion of employees in the exercise of their
Section 7 rights. Accordingly I also recommend that
respondent cease and desist from all such conduct
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. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the act
2. Oil, Chemical and Atomic Workers International
Union , AFL-CIO , is a labor organization within the
meaning of Section 2(5) of the Act.
3. By conduct set forth in section III, above, which has
been found to constitute unfair " labor practices, the
respondent discriminated against employees to discourage
membership in a labor organization and thereby engaged
the parking lot incident (the normal personnel practice ) Guerrero testified
that they had to be sure that they had enough facts to support a decision
to discharge him He felt he had enough facts when supervisor Ortiz
brought him a typewritten statement signed by Cruz and by Colorado,
Rivera and Carlos A Colon as witnesses
"When industrial relations supervisor Guerrero was asked why de Jesus
was so speedily terminated on the same day the parking lot incident was
reported , he testified that it was because as a union leader de Jesus more
than the others would be expected to obey company rules, and if other
employees were aware that a man with his responsibilities had been
allowed to get away with threatening an employee , it would have been
detrimental to the order in the plant
FIBERS INTERNATIONAL CORP. 737
in and is engaging in unfair labor practices within the
meaning of Section 8(a)(3) of the Act affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact and conclusions of
law and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following
RECOMMENDED ORDER
Fibers International Corporation, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Oil, Chemical and
Atomic Workers International Union, AFL-CIO, or any
other labor organization, by discriminatorily discharging,
refusing to' reinstate, or in any other manner
discriminating against any employee in regard to his hire,
tenure, or other term or condition of employment.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to
self-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.
2 Take the following affirmative action to effectuate
the policies of the Act:
(a) Offer to Ruben de Jesus Gomez immediate, full,
and unconditional reinstatement to his former or
substantially equivalent position, without prejudice to his
seniority or other rights, privileges, or working conditions,
and make him whole for any loss of earnings he may have
suffered, in the manner set forth in the section hereto
entitled "The Remedy."
(b) Notify Ruben de Jesus Gomez if presently serving
in the Armed Forces of the United States of his right to
full reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces.
(c) 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 Recommended Order.
,(d) Post at its plant at Guayama, Puerto Rico, copies
in both English and Spanish of the attached notice
marked "Appendix "" Copies of said notice, on forms
provided by the Regional Director for Region 24, after
being duly signed by respondent's authorized
"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
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 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
representative, shall be' posted by respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days . thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted Reasonable steps shall be taken by
respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 24, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.2° Insofar
as the complaint alleges unfair labor practices not
specifically found herein, it is dismissed
pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board "
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
1 writing, within 10 days from the date of this Order, what steps respondent
has taken to comply herewith "
APPENDIX
NOTICE TO MEMBERS
Posted by Order of the National Labor Relations
Board an agency of the United States Government
WE WILL NOT fire or otherwise discriminate against
any employee because he joins, assists, or supports a
union.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their right to self-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.
WE WILL offer Ruben de Jesus Gomez his old job
back, with full seniority, and we will make up the pay
he lost, together with 6 percent interest.
WE WILL notify Ruben de Jesus Gomez if presently
serving in the Armed Forces of the United States of his
right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
FIBERS INTERNATIONAL
CORPORATION
(Employer)
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 concerning this notice or compliance
with its provisions, may be directed to the Board's Office,
7th Floor, Pan Am Building, 255 Ponce de Leon Avenue,
Hato Rey, Puerto Rico 00919, Telephone 809-765-0404.