Gonzalez Padin Co. Inc.

National Labor Relations Board - Board Decisions

Jun 11, 1946

68 N.L.R.B. 520 (N.L.R.B. 1946)

In the Matter of GONZALEZ PADIN COMPANY INC. and UNION DE
EMPLEADOS DE COMERCIO DE PUERTO Rico (CGT)
Case No. 24-C-72.-Decided June 11, 1946
DECISION
AND
ORDER
On March 11, 1946, the Trial Examiner issued his Intermediate
Report in the above entitled proceeding, finding that the respondent had
engaged in and was engaging in certain unfair labor practices, and
recommending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the copy of the Intermediate Report attached
hereto. Thereafter the respondent filed exceptions to the Intermediate
Report and a supporting brief.
The Board has considered the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermediate
Report, the respondent's exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the additions hereinafter set forth.
The Trial Examiner considered it unnecessary to determine whether
commerce within Puerto Rico as well as that between Puerto Rico and
outside points, is within the scope of the Act, since he found that the
respondent's operations affected commerce between Puerto Rico and the
United States. We think it clear that commerce within Puerto Rico is
included in the scope of the Act, and accordingly, even if the respondent's
imports from the United States be ignored, jurisdiction is well founded.'
The Board is empowered to prevent unfair labor practices "affecting
commerce," and Section 2 (6) of the Act defines "commerce" to in-
clude "trade, traffic, commerce, transportation, or communication . . .
within the District of Columbia or any Territory . . ." (Emphasis sup-
plied.) Puerto Rico is, as we have heretofore held, a "Territory" within
the meaning of the term as used in Section 2 (6) of the Act.2
' Matter of The Chase National Bank of the City of New York, San Imam, Puerto Rico,
Branch, 63 N. L. R. B. 656, 662-663.
2 Matter of Ronrico Corporation, et al, 53 N. L R B 1137.
68 N. L. R. B., No. 75.
520
GONZALEZ PADIN COMPANY, INC. 521
The respondent's contentions that the Act can have no application
to its employees engaged in local delivery operations, and that a failure
to show that the discharge of Jose Robles or the labor dispute which
might ensue therefrom affect commerce directly, is fatal to jurisdiction,
are plainly without merit .3
ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Gonzalez Padin Company,
Inc., San Juan, Puerto Rico, and its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Union de Empleados de Comercio
de Puerto Rico (CGT), or any other labor organization of its em-
ployees, by discharging or refusing to reinstate any of its employees,
or by discriminating in any other manner in regard to their hire and
tenure of employment, or any term or condition of their employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization to form
labor organizations, to join or assist Union de Empleados de Comercio
de Puerto Rico (CGT), or any other labor organization, to bargain
collectively through representatives of their own choosing, and to en-
gage in concerted activities, for the purpose of collective bargaining, or
other mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Jose Robles immediate and full reinstatement to his
former or a substantially equivalent position without prejudice to his
seniority and other rights and privileges ;
(b) Make whole Jose Robles for any loss of pay he may have suffered
by reason of the respondent's discrimination against him, by payment to
him of a sum of money equal to the amount he normally would have
earned as wages from November 14, 1944, to the date of the respondent's
offer of reinstatement, less his net earnings during said period ;
(c) Post immediately at its store at San Juan, Puerto Rico, copies
of the notice in the form attached to the Intermediate Report, marked
"Appendix A."4 Copies of said notice, accompanied by a Spanish trans-
lation thereof, to be furnished by the Chairman of the Puerto Rico Labor
7 N. L. R. B . v Jones & Laughlin Steel Corp., 301 U. S. 1; and N. L. R. B. v . Tex-O-Kan
Flour Mills Company, 122 F . (2d) 433 (C. C. A. 5).
4 Said notice , however, shall be, and it hereby is, amended by striking from the first para-
graph thereof the words "Recommendations of A Trial Examiner ," and substituting in lieu
thereof the words "A Decision and Order."
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Board as Agent of the National Labor Relations Board, shall,
after being duly signed by the respondent's representative be posted
by the respondent immediately upon receipt thereof, and maintained by
it for sixty (60) consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the respondent to insure that said
notices are not altered, defaced, or covered by any other material ;
(d) Notify the Chairman of the Puerto Rico Labor Relations Board
as Agent for the National Labor Relations Board, in writing, within
ten (10) days from the date of this Order, what steps the respondent has
taken to comply herewith.
INTERMEDIATE REPORT
Mr. Vincent M. Rotolo, for the Board.
Messrs. Rafael A. Gonzalez and Hector Gonzalez Blanes, of San Juan, Puerto
Rico, for the respondent.
STATEMENT OF THE CASE
Upon a charge duly filed on November 15, 1944, by Union De Empleados de
Comercio de Puerto Rico (CGT), herein called the Union, the National Labor
Relations Board, herein called the Board, by its Regional Director for the Twenty-
fourth Region (San Juan, Puerto Rico),1 issued its complaint dated January 4,
1946, against Gonzalez Padin Company, Inc., herein called the respondent, alleging
that the respondent had engaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6)
and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act.
Copies of the complaint accompanied by notice of the hearing were duly served
upon the respondent and the Union.
With respect to the unfair labor practices, the complaint alleged in substance that
the respondent on or about October 14, 1944, discharged and thereafter failed and
refused to reinstate Jose Robles, because of his union and concerted activities, and
by such conduct engaged in unfair labor practices within the meaning of Section
8 (1) and (3) of the Act.
The respondent in its duly filed answer to the complaint denied that it had
engaged in any unfair labor practices, and alleged that Robles was discharged from
its employ for proper cause.
Pursuant to notice, a hearing was held on February 4, 5, and 6, 1946, at San
Juan, Puerto Rico, before the undersigned, Arthur Leff, the Trial Examiner duly
designated by the Chief Trial Examiner. The Board and the respondent were
represented at the hearing by counsel. Full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing on the issues was
afforded all parties. Near the close of the hearing, the undersigned granted a
motion made by counsel for the Board to conform the pleadings to the proof as
to dates, the spelling of names, and like minor variances. The parties did not avail
themselves of the opportunity afforded them to present oral argument before, or
to file briefs with the undersigned.
' The Board has designated the Chairman of the Puerto Rico Labor Relations Board as its
Regional Director with authority to exercise the power of such office.
GONZALEZ PADIN COMPANY, INC. 523
Upon the entire record of the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Gonzalez Padin Company, Inc., a Puerto Rico corporation, operates a depart-
ment store in Puerto Rico, It maintains its principal store, which is the only store
involved in this proceeding at San Juan and branch stores at Ponce and Mayaguez ;
it also has a purchasing office in the United States. In Puerto Rico it acts as the
exclusive sales agent or dealer for a number of companies located in the United
States, among them Remington Typewriter Co., American Safety Razor Corp, and
International Philco Corp. During 1945, it sold merchandise valued at approximately
$2,000,000. Approximately 80 percent of the merchandise sold was purchased in
and imported from the United States, the dollar value of such imported mer-
chandise being in excess of $1,300,000.
Although originally admitting that it was engaged in commerce within the mean-
ing of the Act, the respondent near the close of the hearing, altered its position
in this regard, and contended that the Board had no jurisdiction over the subject
matter in this case on the ground that the respondent does not, in the course of its
business operations, export any goods outside Puerto Rico. But while it is true
that the respondent exports none of the merchandise that it buys, the record shows
that the greater part of the merchandise sold, which is substantial in volume, is
imported from the United States The Board's jurisdiction is tested by the effect
of the respondent's operations on commerce. Imports are as much a part of
commerce as are exports .2 Clearly, if a strike of the employees of the respondent's
store should lead to the closing of its doors and stop the sale of merchandise, it
would soon obstruct and burden commerce by impeding the free flow of supplies
not only within Puerto Rico but from the States of the United States to Puerto
Rico as well In Matter of Ronrico Corporation, 53 N. L. R. B. 1137, the Board
decided that Puerto Rico is included within the term "territory" in Section 2 (6)
of the At and that the Board's jurisdiction embraces unfair labor practices affect-
ing commerce between Puerto Rico and points outside Puerto Rico. Since it is
here concluded that the respondent's operations affect commerce between Puerto
Rico and points outside Puerto Rico, it is found, contrary to the respondent's
contention, that the respondent is engaged in commerce, within the meaning of the
Act .3
II. THE ORGANIZATION INVOLVED
Union de Empleados de Comercio de Puerto Rico, affiliated with Confederation
General de Trabajadores de Puerto Rico, is a labor organization admitting to
membership employees of the respondent
2 See N L. R B. v McGough Bakeries Corp, 153 F (2d) 420 (C. C A 5), N L R B v
Richter's Bakery, 140 F (2d) 870 (C. C A 5), cert denied 322 U. S. 574; N. L R B v.
Suburban Lumber Co., 121 F (2d) 829 (C C A. 3), cert. den. 314 U. S 693, N L R B v
J L. Hudson Co., 135 F (2d) 380 (C C A 6), cert den. 320 U. S 740, J L. Brandeis & Sons v
N. L. R. B.y 142 F. (2d) 977 (C. C. A. 8), cert. den. 323 U. S. 758 ; Matter of Hale Brothers
Stores, Inc., 62 N. L. R. B. 367.
2 In view of this conclusion , it is considered unnecessary, as the Board considered it un-
necessary in the Ronrico case, to decide whether Congress intended to include within the scope
of the Act, commerce within Puerto Rico as well as that between Puerto Rico and outside points.
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
M. THE UNFAIR LABOR PRACTICES
The discriminatory discharge of lose Robles4
1. The issues
Jose Robles, employed at the respondent's San Juan store as a messenger-
laborer, was discharged by the respondent on October 14, 1944. The complaint
alleges that the discharge was effected because of Robles' union activities The
respondent in its answer alleges that it was ignorant of Robles' union activities,
and asserts that "Robles was discharged because he refused to perform his duties
in a workmanlike manner and insisted on using the working hours for his own
private benefit and to the detriment of the employer corporation."
2. Robles' employment history
Before joining the respondent, Robles was engaged in buying and selling used
boxes and crates. His work brought him into contact with the respondent. In 1935,
he made an arrangement with the then head of the respondent's delivery depart-
ment to help load and unload trucks that called at the respondent's store. For these
services he received empty boxes and crates which he sold, and, in addition, a
weekly voucher calling for the payment to him of several dollars in cash. This
arrangement continued until Christmas of 1935 or 1936 when Robles was hired as a
full-time substitute employee in the respondent's delivery department. There Robles
performed the usual duties of a messenger and delivery clerk such as running
errands and delivering merchandise both inside and outside the store He was
compensated at the rate of from 4 to 5 dollars weekly. He was also afforded an
opportunity to augment his meager earnings by being permitted during working
hours, when work was slack, to remove from the store and to sell the store's
surplus boxes, crates, and cartons, retaining the proceeds. Although classified as a
"substitute," Robles' job proved to be a steady one He continued nominally to
retain his substitute status until 1942 when he was changed on the respondent's
records from a substitute to a permanent employee Robles' altered status involved
no change in his duties; the only discernable difference in his relationship to the
respondent was that now he punched a time card and received his weekly pay
envelope rather than by voucher.
Robles' change of status from a substitute to a permanent employee was effected
by Salvadore Gonzalez, the respondent's office manager in charge of employment,
who, according to Robles' credited and undenied testimony, called Robles into his
office and told 'him "You are going to work as a regular employee making $1
more and you will always take care of yourself with the boxes when you have hours
that there is not much work in the store." At that time, Robles' weekly wages were
increased to $6. At various times thereafter, Robles received further increases, none
of which, however, were individual merit increases , and he was earning $10 a
week at the time of his discharge in 1944.
During his tenure as a permanent employee, Robles was permitted by Angel Rolan,
an officer of the respondent and the general manager of that division of the store
which included the delivery department, as well as by Luis Hernandez, the foreman
Robles' full name is Jose Robles Gines. Puerto Rico generally follows the Spanish custom
of using the mother's surname as the last name and the father's surname as the penultimate
name. Individuals are ordinarily referred to by their father 's surname . In the interest of
simplicity , wherever any witness is referred to in the record by both names , the penultimate
name will be used to describe him in this report.
GONZALEZ PADIN COMPANY, INC. 525
of the delivery department and Robles' immediate supervisor, to continue his prior
practice of removing surplus boxes and crates from time to time during working
hours. Hernandez, called as a witness by the respondent, testified, and it is found,
that at various times throughout this period, perhaps once a week or once in 2
weeks, Rolan or Hernandez would give Robles empty crates and boxes, and on
such occasions would permit him during working hours to remove them from the
store for the purposes of sale. The privilege granted Robles was, however, not
without its limitations. Robles was prohibited from removing any boxes or crates
on company time except when specifically authorized. There is evidence, credited by
the undersigned, that on occasions during the course of his employment Robles
exceeded the limits of his privilege by removing boxes and crates without express
permission. To what extent Robles engaged in such unauthorized conduct is not clear
in the record.5 It is clear, however, that although Robles' supervisors, Hernandez
and Rolan, were aware that Robles at times engaged in this unauthorized conduct,
and on occasions criticized him for it, they did not consider this of sufficient con-
sequence to warrant their taking disciplinary action. Both Hernandez and Rolan
admitted that they never reported these incidents to the office; that they neither
recommended nor were consulted with respect to Robles' discharge ; and, more
specifically, that they never informed nor discussed with Gerardo Moledo, who
the respondent contends was alone responsible for the discharge, that Robles had
ever removed boxes or crates without permission.
There is no evidence in the record establishing that during the last month of
his employment, Robles on any specific occasion removed boxes and crates from
the store when not permitted to do so by either Rolan or Hernandez.
3. Robles' activities on behalf
of the Union
In the latter part of September 1944, the Union launched a campaign to organize
employees of the department stores located in the vicinity of the respondent's San
Juan store. Robles became interested in the Union at that time, was the first of
the respondent's employees to join, and thereafter assumed the leadership in
organizing employees at the respondent's store. He distributed union application
forms to employees, usually on the Square just outside the respondent's store, where
the employees would gather during non-working hours, but in some instances
inside the store, and also collected signed applications inside the store. In all,
Robles, prior to the termination of his employment, received and transmitted to
the union organizer 35 signed application forms.6 Robles' solicitation activities,
above described, were conducted during the 2-week period preceding his discharge.?
S The testimony ar' duced by the respondent on that point was vague and general. Hernandez,
the respondent's principal witness on this phase of the case, testified that he had observed
"several" such occasions , but he refused to define "several" beyond saying that it was more
than one. He could recall specifically only one such occasion, when Robles had removed a
box which Hernandez had promised to a lady, but he was certain that there were others
Hernandez further testified that he had spoken to Robles about it on "several" occasions, the
last time about a month before Robles' discharge.
6 The respondent has about 150 employees at its San Juan store.
1 The findings herein made concerning Robles' union activities , although based largely upon
his own uncontested testimony , are also supported in substantial respects by the testimony of
four other employee witnesses , including one called by the respondent. Further, it was
stipulated that if the union organizer were called as a witness, he would testify that prior to
October 14, 1944, he received 35 applications from Robles.
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Events on the day of the
discharge
At the time Robles was engaged in his solicitation activities he carried the
union application forms in the rear pocket of his trousers . 8 Robles testified that
during the period of his employment , various department heads, each anxious to
make sure that his deliveries were promptly attended to and not withheld in favor of
others, would at times remove the papers which Robles carried in his pocket for the
purpose of determining what delivery receipts Robles held for them. On Saturday
afternoon , October 14, 1944, Robles further testified , Alberto Gonzalez , a depart-
ment head and an officer of the respondent , while looking for his delivery receipts,
removed from Robles ' pocket the union application forms. As to what followed,
Robles' testimony ( as interpreted from Spanish ) is set out below:
He [Alberto Gonzalez ] took them out. He asked , "Is this mine ?" I said, "No,
these are application blanks for entrance to the Union of Commercial
Employees."
And then he said to me, "Are you a top leader in the CGT?" And I answered,
"I am a leader looking for justice for us since there is none here for the
workers." Then he answered me and said, in a loud voice , in a very angry atti-
tude, "If the Union can 't do anything for you, what can you do yourself
alone for it."
Alberto Gonzalez denied that he had ever seen any union application forms
or ever had a conversation with Robles concerning labor unions and further denied
that he had ever searched Robles' pockets. On cross-examination he conceded,
however , that it was his custom personally to follow up Robles for the return of
his delivery slips and that he was interested in the papers that Robles carried about.
Gonzalez from his demeanor on the witness stand did not impress the undersigned
as a trustworthy witness .9 Robles, on the other hand , impressed the undersigned
as a generally veracious , albeit an unlettered and not too articulate witness, whose
over-all testimony was supported by convincing detail and other corroborating cir-
cumstances in the record . Moreover , Robles' testimony concerning his conversation
with Alberto Gonzalez was in part corroborated by another witness.10 Although
the undersigned believes that Robles' account of what was said may have been
somewhat embellished by an exaggerated consciousness of his own importance in
his role as union leader , he is nevertheless convinced from all the testimony and
from his observation of the witnesses that Robles did have a conversation with
Gonzalez concerning the Union at the time in question and that Alberto Gonzalez
was then aware of Robles' union activities It is so found.11
8 Robles' testimony to this effect was corroborated by Jaime Santana, a witness for the
respondent, who testified that he frequently saw them there during that period. Robles did not
wear a coat while at work.
*Gonzalez ' manner while testifying was belligerent; the form of his answers was that of
one who "doth protest too much", and his denials lacked the ring of sincerity.
10 Primitivo Quinones, employed at that time by the respondent as a tailor , testified that
from his work station located on a balcony approximately 20 feet above the place where the
conversation occurred, he overheard Alberto Gonzalez on the day of Robles' discharge address
Robles in an irate manner on the subject of the Union. Concerning the precise words used,
Quinones' testimony was somewhat at variance from that of Robles'. According to Quinones'
testimony, as translated, Gonzalez told Robles that "since the union won't do anything for
them, for them to strike out for themselves."
ii Another Board witness, Pedro Rodriguez, testified that on the afternoon of Robles' dis-
charge, he overheard Salvadore Gonzalez, the respondent's office manager, inquire of employee
Jaime Santana, whether Robles had given Santana an application card. Both Gonzalez and
Santana denied that any such incident had occurred. Santana, particularly, impressed the
undersigned as a ciec'ible witness, and the undersigned on the basis of his appraisal of the
quality and quantity of the conflicting testimony, credits the denials, rejecting the testimony
of Rodriguez.
GONZALEZ PADIN COMPANY, INC. 527
The conversation above related occurred at about 2:30 or 3 p. m , approximately
at the time that the weekly pay envelopes were being distributed to the employees.
Shortly thereafter, Robles received his pay for the week ending October 14. With
it he received his time card for the week from October 16 to 21 12
At about 5 or 5:30 that afternoon, upon his return from a delivery errand, Fore-
man Hernandez summoned him and handed him an envelope containing a letter
and four $10 bills. The letter, dated October 14, 1944, read as follows :
DEAR MR. RoBLES : We regret to inform you that we have decided to discon-
tinue the position which you have been occupying up to now.
Enclosed please find $40 00 which is a month's pay granted by law.
Very truly yours,
GONZALEZ PADIN COMPANY, INC.
It was conceded that the "law" referred to in the letter was an Act of the
Puerto Rican legislature,13 the provision of which, pertinent to this case, provide
that an employee
hired for an indeterminate period who shall be discharged from his work
without just cause14 shall have the right to receive from his employer, in addi-
tion to the salary which he shall have earned, a sum equivalent to one month's
work as liquidated damages.
Hernandez informed Robles that he did not know why Robles was being dis-
charged, and suggested that Robles call at the office. Upon inquiry there, Salvadore
Gonzalez told Robles, "I don't know what is going on with you. I am just be-
ginning to find out about it. Go and ask Moledo." Calling on Gerardo Moledo, the
respondent's cashier, Robles again failed to receive any explanation for his dis-
charge; Moledo's only answer was, "We don't need you any more. We are through
with you. You will ask Alberto that knows about it Finally, as suggested by Moledo,
Robles went to see Alberto Gonzalez and said, "Alberto, what is going on? I have
been fired You know, I just came back from work and I find this surprise here."
To this Alberto Gonzalez replied, "Well, let it not be a surprise to you and go to
the CGT and ask them for a job."15
5. The respondent 's contentions concerning the discharge of
Robles and evaluation of evidence related thereto
Notwithstanding the explicit reason ascribed therefor in the discharge notice, the
respondent did not contend at the hearing that Robles was released because his job
had been discontinued. Such a contention could not have been validly urged, for the
12 Each Saturday, the respondent's employees received their time cards for the following
week. They would carry these about on their person and turn them in at the end of the week
which they covered. The time cards for the succeeding week are prepared at the cashier's
office on Friday afternoon
11 The Act is known as Law No 43, approved April 28, 1930, as amended by Law No. 84,
approved May 11, 1943.
14 Emphasis supplied.
is-The findings made above concerning Robles' conversation with the various members of
the respondent 's supervisory and executive personnel which followed the receipt by him of
the discharge notice are based upon Robles' credited and, in that respect , substantially un-
contradicted testimony . Hernandez , Moledo, and Salvadore Gonzalez, while testifying, each
admitted that the conversations with him occurred substantially as testified to by Robles.
Alberto Gonzalez was not specifically questioned concerning his conversation with Robles at
that time, although in response to a general question not related to this specific incident, he
did testify that he "never had any conversation with Jose Robles in relation to labor unions
or his joining a union or his campaigning for a union in Gonzalez Padin, Incorporated."
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
iespondent's own records conclusively show that the job was not discontinued and
that Robles was replaced the following Monday.
Nor did the respondent at the hearing rely on the allegation of its answer
which asserts as one of the reasons for the discharge that "Robles refused to
perform his duties in a workmanlike manner ." Indeed, the testimony of the respon-
dent's own witnesses is to the contrary. Hernandez, Robles' immediate supervisor,
and Rolan, his general supervisor, both conceded while testifying that Robles was a
good worker.
The respondent based its defense upon a single ground . It claimed that Robles
was discharged by Moledo its cashier,16 because he was using company time to
remove empty boxes and crates from the store for his own use . It asserted that
the discharge decision was made by Moledo, and by Moledo alone, who acted
without informing or consulting any other supervisor or executive of the
respondent.
Moledo testified that about once a week during the 3 or 4 weeks preceding the
discharge, he had observed Robles on the street carting away empty boxes; that
on each of these occasions he had directed Robles' attention to the fact that Robles
was on company time which was to be used exclusively for the respondent's
business; that he had no knowledge then, although he did now, of any arrange-
ment which permitted Robles to remove and sell boxes on the respondent' s time 17
that he last observed Robles engaged in such activity on the morning of the day
preceding the discharge; that at that time he finally decided to discharge Robles;
and that pursuant to that decision, which he in the meantime communicated neither
to Robles nor to any of the respondent's supervisors or officials, he caused to be
prepared and delivered to Robles on the following afternoon the discharge notice
which has been set out above. Moledo admitted that he had never received any
complaints concerning Robles from either Hernandez or Rolan, the foreman and
supervising officer, respectively, of the delivery department. He testified (although
not uniformly) that on at least some of the occasions when he spoke to Robles about
his improper use of company time, Robles advised him that he had received per-
mission to remove the boxes. Yet he admitted that he made no investigation to
determine whether Robles in fact had received such permission; he explained this
only by saying that he "wasn't interested." He further admitted that neither before
nor after the discharge did he inform Robles of the reason which he now asserts
motivated his action. According to his own testimony, the only reason he gave
Robles for the discharge was that "we didn't need him any more."
Robles, on the other hand, could not recall ever meeting Moledo on the street
while engaged in carrying away empty boxes and crates, and testified that, in any
event, Moledo never complained to him about this practice.
The undersigned was not impressed by Moledo's testimony as to the circum-
stances which led him to prepare the discharge notice . Moledo's testimony con-
cerning his meetings with Robles was vague, incomplete, and lacking in detail.
He was indefinite as to the occasions and number of times that he spoke to Robles
is There is testimony indicating that Moledo , as cashier , is also an officer of the re-
spondent ; this testimony is accepted as fact even though a written commerce statement
submitted by the respondent listing its officers does not include Moledo's name.
iv Moledo's testimony on that point was as follows:
By counsel for the respondent:
Q. Do you have any knowledge of an agreement to give him [Robles] empty boxes and
crates and let him have boxes and crates delivered and sold oil Gonzalez Padin 's time?
A. No, sir. -
Q. Do you have any knowledge of it?
A. At that time, no. From what I have heard after that, yes.
GONZALEZ PADIN COMPANY, INC 529
His account as to what was said was contradictory; at two points in his testimony
he stated that at least on certain occasions when he reproached Robles for using
company time to remove the boxes, Robles' answer was that he had authority to
do so; but at an intervening point he stated that on these occasions Robles said
absolutely nothing and merely "looked at [him] in a very bad way" While
admitting that he had observed Robles engaged in like activity "lots of times"
between 1942 and September 1944, conduct which he testified he had considered
improper all along, Moledo was unable to explain satisfactorily why he had
refrained from speaking to Robles about it prior to September 1944 and why he
had abstained altogether from discussing the matter with Robles' foreman or
department head.'8
But the implausibility inherent in Moledo's testimony concerning the reason for
the discharge goes even deeper. As cashier charged with the responsibility of
making the final payment and preparing the discharge papers, Moledo was the
person through whom all discharges, whatever their origin, were channelized.
Moledo, however, was not the officer charged with supervision of the delivery de-
partment; this fell under the jurisdiction of Rolan who held the corporate office
of secretary While all of the respondent's officers had the right to discharge, it was
a general, although perhaps not invariable practice in the respondent's organization
to have final discharge action withheld until the case had first been submitted
to Personnel Manager Salvadore Gonzalez who would conduct an investigation
into the facts before a final decision was reached. According to Moledo, this
procedure was not followed in the case of Robles. Nor did Moledo, according to
his own testimony, make any effort to ascertain whether Robles had received per-
mission to remove the boxes, even though, as he twice testified, Robles had informed
him that such permission had been granted This is particularly significant in view
of the fact that Moledo did not claim, and the record fails specifically to establish,
that Robles had no permission from Rolan or Hernandez to remove the boxes and
crates at the time Moledo says he reprimanded Robles for using company time
for such purposes. If Moledo had been genuinely concerned about Robles' alleged
improper use of company time, it is unreasonable almost to the point of absurdity
to believe that he would not under such circumstances at least have called the
matter to the attention of Robles' supervisors, one of whom was an officer of the
respondent directly charged with the supervision of the delivery department And
it is no more reasonable to believe that the now asserted reason would have been
withheld from Robles by Moledo and,other officials of the respondent at the time
of his discharge, had Robles in fact been discharged for that reason Nor is it likely
that Moledo would have referred Robles to Alberto Gonzalez for an explanation
of his discharge, if, in fact, he had personally discharged Robles for the reason
which he now asserts.
Not only was the now asserted reason unmentioned at the time of the discharge,
but, what is more significant , the reason then given in the discharge notice, namely
that Robles' job had been discontinued, was an entirely different one Moreover,
the payment to Robles of an extra month's pay "granted by law" carried with it
an implicit admission that the discharge was, in the words of the statute, "without
just cause." In this connection the undersigned has not overlooked Moledo's testi-
mony that the notice used was a common form which might be used by the respon-
18 Moledo's explanation that he found Robles using company time more often in September
1944 than before is entirely unconvincing in the light of Hernandez' credited testimony, earlier
adverted to, indicating that during the period of Hernandez ' supervision Robles was given
permission to remove boxes about once a week . According to Moledo 's own testimony, he did
not during the mouth preceding the discharge observe Robles doing it more often than that.
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent even in cases where an employee was discharged for cause. The record shows
that other employees actually discharged for cause by the respondent were not
paid a month's wages. Salvadore Gonzalez testified, at variance with Moledo, that
where the respondent discharged employees for cause it would, as a general rule,
not state in the discharge notice, "enclosed please find month's pay granted by
law."19 He testified further that the form of discharge notice given to Robles was
one used only in the following situations : (a) where there were no reasons for
the discharge except that no further employment was available, and (b) where,
although there was a reason for the discharge, the respondent did not care to
disclose that reason, or did not "want it to go any further." In the case of Robles,
the respondent offered no explanation for not caring to disclose the reason or
allowing the matter to go any further, even though the asserted reason, if a valid
one, would clearly have excused it from any legal obligation to pay Robles one
month's termination wages.
Upon consideration of all the evidence the undersigned is convinced, and finds,
that Robles was not in fact discharged for the reason assigned by Moledo in his
testimony, which the undersigned does not credit 20 The underlying motive and
reason for the discharge must be sought elsewhere.
6. Conclusion
During the 2 weeks of activity which preceded Robles' discharge, the union
drive, in which Robles was a leader, had made substantial progress, and the respon-
dent had reason to fear that, if permitted to continue undisturbed, it might soon
result in the successful organization of its employees Notwithstanding Moledo's
denial, it is clear, and it is found, that the respondent had knowledge that Robles
was identified with the Union's organizational efforts. As has been found above,
Alberto Gonzalez became aware, if he were not already aware of Robles' leading
organizational role, in the course of his conversation with Robles which preceded
the discharge by several hours. Nor does the finding of knowledge on Alberto
Gonzalez' part rest on this incident alone It is also confirmed and supported by
Alberto Gonzalez' statement to Robles made immediately after the discharge:
"Well, let it not be a surprise to you and go to the CGT and ask for a job," a
statement which Alberto Gonzalez did not deny making. Moreover, the undenied
fact that Moledo found it necessary or expedient to refer Robles to Gonzalez
when Robles inquired as to the reason for his discharge can only be construed,
as it is here by the undersigned, to mean that Alberto Gonzalez was a participant
in, if not indeed the originator of, the discharge decision 21
But Moledo's referral of Robles to Alberto Gonzalez and the latter' s suggestion
that Robles "go to the CGT and ask for a job" go beyond establishing Gonzalez'
connection with the discharge and the respondent's knowledge of Robles' union
activities. These incidents also supply the key to the respondent's underlying motive
in effecting the discharge, disclosing , as they do, the existence of a close and
iG Salvadore Gonzalez asserted that the respondent in such a notice might state that the
position was discontinued , but he was unable to substantiate this assertion by documentary
proof, although requested to do so. The only specific instance to which he could point where
an employee discharged for cause was given a letter similar to that received by Robles and
was paid a month's salary involved an employee suspected of gambling but against whom the
respondent had no definite proof.
10 On the other hand, the undersigned credits Robles' testimony that he was never criticized
or reprimanded by Moledo for using company time to remove boxes and crates.
Si In light of the entire record, the testimony of Moledo and Alberto Gonzalez that they
did not confer with each other concerning the discharge is found implausible and is not
credited.
GONZALEZ PADIN COMPANY, INC. 531
intimate relationship between Robles' CGT affiliation and the discharge decision. In
assessing their significance, they must be considered, not alone, but in conjunction
with the entire pattern of events reflected by the full record of this case, including
the timing of the discharge in relation to the Union's campaign, the payment to
Robles of a month's wages required by law to be made only where the discharge
was "without just cause," the respondent's failure to state to Robles any reason
for the discharge other than the patently false one assigned in the discharge notice,
and the assignment at the hearing of an entirely different but nonetheless specious
reason. Such consideration leads to the conclusion, herein found, that the roots
of the respondent's decision to discharge Robles lay in Robles' outstanding role in
the recently irritated union movement to organize the respondent's employees and in
the respondent's determination to frustrate the development of that movement and
to discourage similar activities by its employees in the future.
It is found, upon the entire record, that the respondent by discharging Robles
on October 14, 1944, and by failing thereafter to reinstate him, discriminated in
regard to his hire and tenure of employment, thereby discouraging membership in
the Union, and interfering with, restraining, and coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above, occurring in
connection with the operations of the respondent described in Section I above, have
a close, intimate and substantial relationship to trade, traffic, and commerce among
the several States and Puerto Rico, and tend to lead to labor disputes burdening
and obstructing commerce and the free flow thereof.
V. THE REMEDY
It has been found that the respondent, for the purpose of frustrating and dis-
couraging union organization among its employees, not only at the time of the
discharge but in the future as well, discriminatorily discharged Jose Robles and
refused to reinstate him because of his union activities. The respondent, having by
such conduct violated Section 8 (1) and (3) of the Act, it will be recommended
that the respondent pursuant to the mandate of Section 10 (c) cease and desist
therefrom. Discrimination such as was engaged in by the respondent strikes at the
roots of the employee rights safeguarded by the Act and is one of the most effec-
tive forms of intimidation that can be conceived.22 Moreover, it discloses a pro-
pensity and a determination on the part of the respondent to engage in persistent
efforts, but not necessarily by the same method, to continue to defeat self-organ-
ization by its employees. Because of the respondent's unlawful conduct and its
underlying purpose, the undersigned is convinced that the unfair labor practice com-
mitted by the respondent is related to other unfair labor practices proscribed
and that danger of their commission in the future is to be anticipated from the
respondent's conduct in the past. The preventive purposes of the Act will be
thwarted unless recommended order is coextensive with a threat. In order, there-
for, to make effective the interdependent guarantees of Section 7, to prevent a re-
currence of unfair labor practices, and thereby minimize industrial strife which
burdens and obstructs commerce, and thus effectuate the policies of the Act, it will
22 See N. L. R. B. v. Entwistle Manufacturing Company, 120 F. (2d) 532, 536 (C. C. A. 4);
N. L. R. B. v. Automotive Maintenance Machinery Co., 116 F. (2d) 350, 353 (C. C. A. 7).
696966--46-35
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be recommended that the respondent be ordered to cease and desist from in any
manner infringing upon the rights guaranteed in Section 7 of the Act.
Further, and in order to rectify the respondent's discrimination in regard to the
hire and tenure of employment of Jose Robles, it will be recommended that the
respondent offer him immediate and full reinstatement to his former or substantially
equivalent position without prejudice to his seniority and other rights and privileges
It will also be recommended that the respondent make him whole for any loss of
pay that he may have suffered by reason of the respondent's discrimination against
him by payment to him of a sum of money equal to the amount he would have
earned as wages from November 14, 1944, the date to which he was given sev-
erance pay under the Puerto Rico law referred to above,23 to the date of the re-
spondent's offer of reinstatement less his net earnings 24 during said period
CONCLUSIONS OF LAW
1. Union de Empleados de Coinercio de Puerto Rico (CGT) is a labor organiza-
tion within the meaning of Section 2 (3) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Jose
Robles, thereby discouraging membership in Union de Empleados de Coinercio
de Puerto Rico (CGT), the respondent has engaged in and is engaging in unfair
labor practices, within the meaning of Section 8 (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices, within the meaning of Section 8 (1)
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.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law the under-
signed recommends that the respondent, Gonzalez Padin Company, Inc., San Juan,
Puerto Rico, its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in Union de Empleados de Comercio de Puerto
Rico (CGT) or any other labor organization of its employees by discharging or
refusing to reinstate any of its employees, or in any other manner discriminating
in regard to their hire and tenure of employment, or any term or condition of
their employment.
(b) In any other manner interfering with, restraining, or coercing its employees
in the exercise of the right to self-organization, to form labor organizations, to join
or assist Union de Empleados de Comercio de Puerto Rico (CGT), or any other
23 It cannot be validly urged that the "liquidated damage" provision of the Puerto Rican
law limits the back pay award. For under Section 10 (a) of the Act the power of the Board
to fashion an appropriate remedy to prevent the commission of unfair labor practices is ex-
clusive and "cannot be affected by any other means of adjustment or prevention that has been
or may be established by agreement , code, law or otherwise."
34 By "net earnings" is meant earnings less expenses , such as for transportation, room, and
board , incurred by an employee in connection with obtaining work and working elsewhere than
for the respondent , which would not have been incurred but for his unlawful discharge and the
consequent necessity of his seeking employment elsewhere . See Matter of Crossett Lumber Com-
pany, 8 N. L. R. B. 440. Monies received for work performed upon Federal, State, county,
municipal , or other work-relief projects shall be considered as earnings . See Republic Steel
Corporation v. N. L. R. B., 311 U. S. 7.
GONZALEZ PADIN COMPANY, INC. 533
labor organization, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of collective bar-
gaining, or other mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will effec-
tuate the policies of the Act :
(a) Offer to Jose Robles immediate and full reinstatement to his former or
substantially equivalent position without prejudice to his seniority and other rights
and privileges. 0
(b) Make whole Jose Robles for any loss of pay he may have suffered by reason
of the respondent's discrimination against him by payment to him of a sum of
money equal to the amount he normally would have earned as wages from
November 14, 1944, to the date of the respondent's offer of reinstatement, less his
net earnings,25 during said period;
(c) Post immediately at its store at San Juan, Puerto Rico, copies of the notice
in the form attached to the Intermediate Report herein, marked "Appendix A".
Copies of said notice, accompanied by a Spanish translation thereof, to be furnished
by the Regional Director for the Twenty-fourth Region, after being duly signed
by the respondent, shall be posted by the respondent immediately upon receipt
thereof, and maintained by it for sixty (60) consecutive days thereafter, in con-
spicuous places, including all places where notices to employees are customarily
posted Reasonable steps shall be taken by the respondent to insure that said
notices are not altered, defaced, or covered by any other material;
(d) Notify the Regional Director of the Twenty-fourth Region in Writing
within ten (10) days from the date of the receipt of the Intermediate Report
what steps the respondent has taken to comply therewith.
It is further recommended that unless the respondent notifies said Regional
Director in writing within ten (10) days from the receipt of this Intermediate
Report that it will comply with the foregoing recommendations, the National Labor
Relations Board issue an order requiring the respondent to take the action
aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective November 27,
1945, any party or counsel for the Board may, within fifteen (15) days from the
date of the entry of the order transferring the case to the Board, pursuant to
Section 32 of Article II of said Rules and Regulations, file with the Board,
Rochambeau Building, Washington 25, D. C, an original and four copies of a
statement in writing, setting forth such exceptions to the Intermediate Report or
to any other part of the record or proceeding (including rulings upon all motions
or objections) as he relies upon, together with the original and four copies of a
brief in support thereof. Immediately upon the filing of such statement of excep-
tions and/or brief, the party or counsel for the Board filing the same shall serve
a copy thereof upon each of the other parties in said Section 33. Should any party
desire permission to argue orally before the Board, request therefor must be made
in writing to the Board within ten (10) days from the date of the order trans-
ferring the case to the Board.
ARTHUR LEFF,
Trial Examiner.
Dated March 11, 1946.
i5 See footnote, 24, supra.
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE To ALL EMPLOYEES
Pursuant to recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereljv notify our employees that:
We will not in any manner interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization, to form labor organizations,
to join or assist Union de Empleados de Comercio de Puerto Rico or any
other labor organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection.
We will offer to the employees named below immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice
to any seniority or other rights and privileges previously enjoyed, and make
them whole for any loss of pay suffered as a result of the discrimination.
JOSE RoBLEs
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard to hire
or tenure of employment or any term or condition of employment against any
employee because of membership in or activity on behalf of any such labor
organization
GONZALEZ PADIN COMPANY, INC.
Employer.
By ........................................
(Representative) (Title)
Dated ..............................
NoTE-Any of the above-named employees presently serving in the armed forces
of the United States will be offered full reinstatement upon application in accord-
ance with the Selective Service Act after discharge from the armed forces.
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.