International Association of Machinists

National Labor Relations Board - Board Decisions

Mar 18, 1971

189 N.L.R.B. 50 (N.L.R.B. 1971)

50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Association of Machinists and Aerospace
Workers , AFL-CIO, and its agent , Juan L.
Maldonado and General Electric Company Circuit
Protective Devices Department, Caribe Plant
Operations ; General Electric Power Products, Inc.,
General Electric Circuit Breakers, Inc. Case
24-CB-728
March 18, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND
KENNEDY
On September 29, 1970, Trial Examiner Maurice S.
Bush issued his Decision in the above-entitled
proceeding, finding that the Respondents had en-
gaged in and were engaging in certain unfair labor
practices and recommending that they cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision.
Thereafter, the Respondents filed exceptions to the
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
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 that 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 the case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner as modified herein.
We are not persuaded, on the instant record, that
the individual responsibility of Respondent Maldona-
do, Grand Lodge representative of the International,
for the acts otherwise attributable to the Union, has
been shown. Accordingly, we shall, and hereby do,
dismiss the complaint as to Respondent Maldonado.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner, as modified below,
and hereby orders that the Respondent, International
Association of Machinists and Aerospace Workers,
AFL-CIO, its officers, agents, and representatives,
shall take the action set forth in the Trial Examiner's
Recommended Order as so modified:
1. Delete the line, "1. Cease and desist from:", and
substitute the following:
1. Cease and desist from restraining or coerc-
ing employees of General Electric Company
Circuit Protective Devices Department , Caribe
Plant Operations ; General Electric Power Prod-
ucts , Inc., or General Electric Circuit Breakers,
Inc., in the exercise of their rights as guaranteed in
Section 7 of the Act (including the right to refrain
from joining or assisting International Association
of Machinists and Aerospace Workers,
AFL-CIO) by.
2. Substitute the attached notice for the Trial
Examiner's notice.
3 In footnote 13 of the Trial Examiner ' s Decision,
substitute "20" for "10" days.
i The Respondent excepted to certain of the credibility findings made
by the Trial Examiner It is the Board 's established policy, however, not to
overrule a Trial Examiner's resolutions with respect to credibility unless, as
is not the case here, a clear preponderance of all the relevant evidence
convinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc, 91 NLRB 544. enfd 188 F 2d 362 (C A 3) In affirming his finding as
to the credibility of witnesses Timoteo Cruz and his wife, Aurora Reyes,
however, we do not rely on the Trial Examiner 's inference , unnecessary
under the circumstances that their daughter. Maria Cruz, was not called to
corroborate their testimony because she feared bodily harm
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Section 7 of the National Labor Relations Act
guarantees all employees the right to join and assist
labor unions and also the right, with certain excep-
tions, to refrain from joining and assisting labor
unions, and to refrain from participation in union
activities, including strikes.
WE WILL NOT restrain and coerce the employees
of General Electric Company Circuit Protective
Devices Department, Caribe Plant Operations;
General Electric Power Products, Inc., and Gener-
al Electric Circuit Breakers, Inc., in the exercise of
their Section 7 rights.
More specifically:
WE WILL NOT inflict or threaten to inflict bodily
harm upon any nonstriking employees of the
above-named Companies.
WE WILL NOT cause damage to the automobiles,
buses, or other property used by the nonstriking
employees of the above-named Companies to
carry on their business operations.
WE WILL NOT attack the homes of nonstriking
employees or other employees of the above-named
Companies who fail or refuse to support the
189 NLRB No. 10
INTERNATIONAL ASSOCIATION OF MACHINISTS
International Association of Machinists and Ae-
rospace Workers, AFL-CIO, and its agents,
including Juan L. Maldonado
WE WILL NOT injure or attempt to attack and
inflict bodily harm on any of the nonstriking
employees or other employees of the above-named
Companies by any means, including the use of
incendiary devices, rocks, or clubs.
WE WILL NOT block the ingress or egress of
company officials, supervisors, or other employees
of the above-named Companies or harass and
threaten them while they are going to or from the
plants of the said Companies
WE WILL NOT allow large numbers of our
members or strikers to pursue and threaten
nonstriking employees of the above-named Com-
panies who fail or refuse tojoin or engage in any of
our union activities.
WE WILL NOT in any other manner restrain or
coerce employees in the exercise of their rights
under the National Labor Relations Act.
INTERNATIONAL
ASSOCIATION OF
MACHINISTS AND
AEROSPACE WORKERS,
AFL-CIO
(Labor Organization)
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, Seventh Floor Pan Am Building, 255 Ponce de
Leon Avenue, Box UU, Hato Rey, Puerto Rico 00919,
Telephone 809-765-0404.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MA[,RiCE S. BUSH, Trial Examiner This is the second
time within the current year that the above-named Union
and its agent Maldonado , Respondents , have been on trial
before a Trial Examiner for a violation of Section 8(b)(1)(A)
of the National Labor Relations Act on charges of strike
misconduct against the nonstriking employees of the
above-named Companies , the Charging Parties , arising out
of a strike which commenced on October 28, 1969. The
strike was still in progress at the time of the trial herein in
April 1970
The trial in the first case, Case 24-CB-718, took place
before Trial Examiner Owsley Vose in Puerto Rico in
51
January 1970 On April 7, 1970, Examiner Vose issued his
Decision in the case in which he found the Union and
Maldonado in violation of Section 8(b)(1)(A) of the Act by
reason of numerous acts of strike misconduct from October
29 through various dates in November 1969 and issued a
recommended cease and desist order thereon The Board
on June 25 , 1970, adopted Examiner Vose's findings,
conclusions , and cease-and-desist order as reported in 183
NLRB No. 126.
The present Trial Examiner takes full official notice of
the Board's decision in the first case and incorporates all
the findings of facts and conclusions herein, insofar as
pertienent, as though fully set forth in this Decision.
The instant case involves alleged incidents of strike
misconduct in the subsequent months of December and
January
The complaint herein was issued on February 16, 1970,
pursuant to a charge filed by the above-named Companies
on January 23, 1970. The Union filed two separate answers
to the complaint , one by Donald E. Wharton, grand lodge
representative of the Union , under date of February 25,
1970, and the other by Louis P Poulton , associate general
counsel for the Union, under date of March 2,1970. Upon
motion, the first answer was withdrawn and the second
answer by Poulton allowed to stand as the Union 's answer
to the complaint . The answer admits theiurisdictional facts
and certain other factual allegations but denies the alleged
strike misconduct.
The case was tried before the appointed Trial Examiner
over a period of 8 days between April 10 and 21, 1970, at
Hato Rey, Puerto Rico. Briefs were received from all
parties on August 24, 1970 , after numerous extensions of
time made necessary by grievous delays in the deliveries of
the transcripts of testimony . The briefs , of which that of
counsel for the Union is the longest and most detailed, have
been carefully reviewed and considered
Upon the entire record and from his observation of the
witnesses, the Trial Examiner makes the following-
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Charging Parties-to wit , General Electric Company
Circuit Protective Devices Department , Caribe Plant
Operations; General Electric Power Products, Inc., and
General Electric Circuit Breakers , Inc., hereinafter collec-
tively referred to as the Company-are Puerto Rico
corporations operating plants at Palmer , Puerto Rico,
where they are engaged in the manufacture of electrical
products. All three corporations constitute a single
employer for the purposes of this proceeding . During the
year preceding the issuance of the complaint , the Company
had more than $50,000 worth of materials shipped to its
plant from places outside of Puerto Rico and during the
same period shipped in excess of $50,000 work of electrical
products to destinations outside of Puerto Rico
All three corporations constitute a single employer,
having its labor relations policies centrally formulated,
controlled, and enforced.
Upon the foregoing facts , it is found that the Company is
engaged in commerce within the meaning of Section 2(6)
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and (7) of the Act and that it will effectuate the policies of
the Act to assert jurisdiction over the unfair labor practices
alleged in the complaint.
11 THE LABOR ORGANIZATION
The Respondent , International Association of Machin-
ists and Aerospace Workers , AFL-CIO, hereinafter called
the Union , is a labor organization within the meaning of
Section 2 (5) of the Act
III THE UNFAIR LABOR PRACTICES
A Background Facts
An employee authorized strike broke out against the
Company on October 28, 1969, as a result of the frustration
and bitterness felt by the employees over the Company's
long failure to recognize and bargain with the Union
despite the fact that the Union won two successive
Board-conducted runoff elections held on August 15, 1967,
and June 5, 1969 The frustration and bitterness resulted
from the employees' feelings that the Company was
deliberately postponing recognition of and bargaining with
the Union by its tactics of taking appeals at every stage
from the results of two elections won by the Union. The
Union finally attained Board certification on January 22,
1970 The certification was reaffirmed on February 13, 1970,
when the Board denied a company motion for reconsidera-
tion of its certification. The certification culminated more
than 3 years of effort on the part of the Union to gain
recognition I
But even after its certification, the Union had great
difficulty in getting the Company to meet with it for
collective bargaining. Despite requests for such collective
bargaining commencing with February 24, 1970, the
Company refused to meet with union representatives until
only a few days before the trial herein began on April 10,
1970 The Company's initial failure to recognize and meet
with the Union after its certification resulted in unfair labor
practice charges by the Union against the Company The
charges became the subject of a complaint in Case
24-CA-2820 which was heard before the present Examiner
in Puerto Rico on April 8, 1970, and resulted in a Decision
by me on July 30, 1970, in which it was found that the
Company by its failure to recognize and bargain with the
Union was in violation of Section 8(a)(5) of the Act. At the
time of the conclusion of the trial herein on April 21, 1970,
the strike against the Company was still in progress.
The Company operates two adjacent plants on common
premises at Palmer, Puerto Rico 2 Before the strike, the
Company employed approximately 1,200 employees at its
plants, consisting of both men and women
After the commencement of the strike on October 28,
1969, the Company attempted to operate its plants with
nonstrikers, but immediately ran into strike misconduct
which hampered its operations As found by Examiner
Vose in the earlier case, this strike misconduct consisted of
The findings in the above paragraph are based on the findings in Trial
Examiner Vose's Board-adopted Decision in Case 24-CB-718 (183 NLRB
No 126) in my hereafter mentioned Decision in Case 24-CA-2820, and in
my Decision herein and on inferences from findings of fact in all such
sources
(1) the closing and padlocking the gates through which
employees enter the plant; (2) the blocking of cars
containing company officials from entering a plant gate, (3)
the throwing of stones at company officials after they had
attempted to cut open a gate to the plant, (4) attacks by
rocks, clubs, and chains of automobiles carrying company
officials through a plant gate; (5) the chasing of company
officials leaving the plant and threats to them of bodily
harm, (6) threats against nonstrikers seeking to enter or
leave the plant of bodily harm and to their families and
damage to their properties; (7) menacing employees seeking
to enter or leave the plant with clubs, sticks, and chains, (8)
striking employees seeking to enter or leave the plant with
sticks and clubs and by throwing rocks, bottles, and other
missiles at them, (9) the chasing of nonstriking employees
with threats of bodily harm; and (10) threatening a
nonstriking employee at his home with bodily harm 3
In the instant case the strike misconduct alleged in the
complaint was precipitated by the Company's inauguration
of a bus service on December 15, 1969, for its nonstriking
employees to bring them into the plant from central
meeting places and to return them after work to the same
central places This as will be seen caused a violent reaction
from the striking employees In anticipation of such
violence, the Company boarded up the glass windows of the
buses so far as possible to prevent bodily harm to the
passengers from missiles thrown on the buses
B Strike Leaders
The leader and person in charge of the strike has at all
times been Juan L Maldonado who, along with the
International Union, is a Respondent in this proceeding
Maldonado is a grand lodge representative of the
International; he is a professional union organizer and has
never been an employee of the Company. In the earlier
strike misconduct case, Examiner Vose found that
"Maldonado personally participated in the blocking of the
company officials' cars as they were attempting to enter the
plant, Maldonado personally threatened nonstriking em-
ployees as they were attempting to enter the plant, and
Maldonado was present during numerous incidents of
misconduct by pickets but did not protest or attempt in any
way to disassociate the IAM from what was going on"
Examiner Vose further found that, "The conduct of the
pickets on the picket line in the incidents [set forth in his
Decision] followed the pattern thus established, or followed
the example set by the acts of Maldonado himself "
Examiner Vose further found that Nicolas Matta, a
striking employee, was "the right hand man of Maldona-
do " Examiner Vose's Decision shows that Matta was
involved in numerous acts of strike misconduct. Examiner
Vose further noted that while Matta was engaged in striking
a nonstriking employee, Maldonado "stood by laughing."
The record as detailed below will show that Matta
likewise engaged in extremely serious strike misconduct in
the subsequent period of time here involved.
r A full description of the plant and grounds appears in Trial
Examiner's aforementioned Decision in the prior case
As found by Trial Examiner Vose in his Decision under "Conclusions
of Law
INTERNATIONAL ASSOCIATION OF MACHINISTS 53
C Chronology of Events
1 December 15, 1970-re paragraph VII(I) of
complaint
As heretofore noted, strike misconduct by the strikers of
a most serious nature started up again on December 15,
1970, when the Company commenced to furnish bus
transportation for the safe conduct of its nonstriking
employees into and out of the plant pi emises The point of
pickup or discharge of passengers was a police station at
Rio Grande, a small town within a 10 or 15 minute drive
from the plant
At the end of the December 15 workday about 4 00 p m ,
two company buses picked up nonstrikers who had finished
their day's work for transportation to Rio Grande. Josefa
Lebron, a company employee of 14 years, was among the
passengers in the first bus to leave the premises of the plant
Lebron's credited testimony shows that as her bus left the
main gate of the plant's premises, the bus, despite a police
patrol escort, was under continuous stone throwing attacks
from striking employees on the picket line and in five
pursuing automobiles, three of which she recognized as
belonging to striking employees. The bus was also attacked
by stone throwing persons standing in the grass along the
road as it traversed to Rio Grande From the bus she
positively recognized two of the stone throwing strikers in
the pursuing cars as Pablo Matos and Ignacio Agosto One
of the rocks shattered a window pane in the bus and a flying
fragment cut Lebron on her chin and another fragment fell
into the eye of the girl sitting next to her When the bus
arrived at the police station in Rio Grande, there was a
throng of about 100 strikers in front of the station They
pelted the nonstrikers with stones as they alighted from the
buses Among the strikers who threw stones at the
passengers were Ignacio Agosto, Pablo Matta, and Nicolas
Matta who had arrived at the police station in their
pursuing automobiles simultaneously with the buses Most
of the nonstrikers made their way to the awaiting cars of
relatives and friends, but a group of about 15 who had no
transportation were forced to take refuge in the police
station because of fear of being hit Lebron was one of
these She sought to leave the station from time to time on
foot for her home but was unable to because of the
menacing crowd of strikers outside On one such occasion
she was spotted by Ignacio Agosto who invited her to come
out so that he could break her neck
It was not until some 4 hours later about 8 30 p m that
these nonstrikers were able to leave the police station but
even then could do so only in police cars which took them
to their homes or neighborhoods A police car took Lebron
to the edge of the neighborhood where she lived as it was
pursued by a car of strikers including Nicolas Matta, Pablo
Matta. and another striker whose name Lebron could not
remember The police car dropped Lebron off at a spot
where her brother was waiting for her in his car and, as he
drove her home, his car was also pursued by the same car of
strikers After Lebron got into her home, the strikers stood
outside in front of her home
The above findings are based on the credited testimony
of Josefa Lebron Respondent argues that Lebron's
testimony concerning the rock throwing incidents of the
day in question should not be believed because of some
"improbabilities" and some "inaccuracies" in her testimo-
ny, such as the claim that the road on which the buses were
traversing from the plant to Rio Grande was not physically
wide enough to accommodate all of the striker-borne
automobiles Lebron said were following the buses and
throwing stones at them However, Lebron's demeanor and
any fair reading of the transcript of her testimony leaves no
room for doubt that the bus she was in was stoned by
strikers on foot and in automobiles while the bus was
enroute from the plant to the police station in Rio Grande
That is the basic fact whatever inadvertent inaccuracies
there may be in Lebron's original observations of the events
of the day or of her recollections of such events in her
testimony some 3 months later
Respondent also seeks to discredit Lebron's testimony by
the denials of various strikers named by Lebron as stone
throwers of any such conduct. Except in the case of Pablito
Ascencio, their denials are not credited. Although Lebron
in her direct testimony named Ascencio as one of the stone
throwing strikers, her subsequent testimony shows that she
did this inadvertently and did not even realize that she had
done so until it was called to her attention by counsel for
Respondent upon cross-examination. She then immediate-
ly corrected her testimony to show that she had not seen
Ascencio engage in any stone throwing. Her forthrightness
in making this correction further fortifies the Examiner's
impression of the reliability of her testimony
In other efforts to blunt Lebron's testimony, some of the
strikers called by the Union testified that contrary to
Lebron's testimony the large crowd of persons in the
vicinity of the police station at Rio Grande when the buses
of nonstrikers arrived were for the most part residents of
Rio Grande, not strikers, who had gathered there because
the police had beaten up two men and smashed up the car
of another man, none of whom were employees, past or
present, of the Company The Examiner does not give such
testimony credence. The record is convincing that the large
crowd at or near the police station when the buses of
nonstriking employees arrived consisted mostly of strikers
and members of their families protesting the Company's
bussing of its nonstriking employees and exhibiting their
extreme displeasure at the nonstriking employees for
jeopardizing the success of the strike by continuing their
employment with the Company during the course of the
strike.
2 December 17, 1969-re paragraph VII (2) of
complaint
Twenty-two year old Maria Rosa Cruz is a nonstriking
employee of the Company who lives with her parents at
their home located less than a 3-minute drive from the
company plant The credited testimony of Maria's mother,
Mrs Aurora Reyes, shows that she and other members of
her family, including Maria, were awakened a few minutes
before midnight on December 16, 1969, by several shots
fired outside their house Mrs. Reyes became very nervous
and could not go back to sleep She remained by a window
overlooking a small shack-like building below the house
which was owned by the family and was formerly operated
by her husband as a roadside stand for the sale of roast pig
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and alcoholic beverages Around 2 hours later she saw two
men approach the building and throw two fire bombs at the
front of the bar premises in an obvious effort to burn it
down. Her testimony shows that in the light of the bomb
she was able to recognize one of the men as Nicolas Matta,
the aforementioned striker who was strike leader Maldona-
do's right-hand man in the conduct of the strike She was
able to identify Matta because he had patronized her
husband's bar and was also further known to her because,
prior to the strike, he would occasionally drive her
daughter, Maria, home from work Her testimony shows
that the fire bombs caused a fire around the entrance to the
bar which damaged that area, but did not otherwise
damage the single-story shack-like, single-room structure
Respondent's only defense witness with respect to the
above-described fire bombing was strike leader Maldona-
do. Not having been at the premises when it was fire
bombed on December 16, 1969, Maldonado confined his
testimony solely to a claim that he went by the building in
question almost every day for weeks both before and after
December 16 and that he did not see any difference in the
appearance of the entrance to the bar building after
December 16 when the building was fire bombed as claimed
by Mrs. Reyes. His testimony was obviously intended to
throw doubt on the claim that the structure had ever been
burned. To this end the Respondent introduced camera
shots of the building taken by Maldonado during the
course of the trial which show no conspicuous signs of
damage to the building from fire. General Counsel
countered this with rebuttal testimony by Mrs Reyes'
husband, Timoteo. His testimony shows that he had
repaired the fire damage to the building in recent weeks in
preparation for converting the building into a home for one
of his married daughters. Insofar as Maldonado's testimony
and his camera shots were designed to show that the
building in question had not suffered any fire damage, his
testimony is not credited. The testimony of Mrs. Reyes and
her husband conclusively establish that the building in
question was damaged by fire some 2 hours after the
midnight of December 16, 1969 As noted above, Mrs Reyes
identified one of the two men who caused the fire as
Nicolas Matta Matta was not called as a witness The
record is thus conclusive that Matta, a striking employee
found in the earlier proceeding to be Maldonado's
right-hand man, was one of the two men responsible for the
firing of the building It will be shown below that Matta, a
month or so later, was also involved in setting on fire a
company bus loaded with nonstriking employees shortly
after it left the premises of the plant From the record as a
whole, from Matta's failure to take the witness stand, and
from the established fact that Matta is Maldonado's
right-hand man in the conduct of the strike, the Examiner
finds and concludes that Matta fire bombed the business
building adjacent to the home of the parents of Maria Rosa
Cruz in an effort to terrorize her into quitting her
employment with the Company as a nonstriking employee.
Miss Cruz was not called on to testify although she was
a When called as a defense witness by the Union Mrs Matta gave her
name as Alicio Ortiz it was not until her cross-examination that the
witness acknowledged that she was the wife of strike leader Nicolas Matta
There is some confusion in Miguelina's testimony as to whether the
incident occurred after or before she and Carmen had stopped at the home
home at the time of the fire bombing. Under these
circumstances, it is a natural assumption that Government
counsel would normally have called her to testify. It is
inferred from the record as a whole that she was not called
as a witness because she was afraid to testify for fear of
bodily harm. The record supports the further inference that
Matta fire bombed the property of the parents of Miss Cruz
as a warning to other nonstriking employees that they could
expect similar acts of terrorism unless they gave up their
employment with the Company during the course of the
strike
The Examiner further finds and concludes that inasmuch
as Matta was strike leader Maldonado's right-hand man in
the conduct of the strike the Union must be and is held
responsible for the act of terrorism against the property of
the parents of nonstriking employee Maria Rosa Cruz.
3 January 5, 1970-re: paragraph VII (3) of
complaint
Carmen Velazquez, the mother of two children, is a
nonstriking employee who resides in the town of Rio
Grande. She leaves her children with her parents who have
a separate home in Rio Grande and picks them up at the
end of each day's work for the return to her own home. She
receives transportation by company bus between the plant
and a central location in or near Rio Grande called Villos
de Rio Grande from which she walks to her parents' home
On January 5, 1970, as Carmen and another nonstriking
employee, Mtguelina Medina, on returning from work, got
off the bus at Rio Grande about 4:30 p.m and started
walking towards Carmen's parental home, they were
approached by a Volkswagen driven by striker Alfredo
Rodriguez who had two passengers, one of them a striker
like himself, Mrs Alicia Matta,4 the wife of strike leader
Nicolas Matta, and her father, Honario Ortiz, who works
for the Puerto Rico Department of Labor and has never
been an employee of the Company From the inside of the
car, Rodriguez called to Carmen and told her that she was a
dirty strikebreaker and threatened to cut her face. The
above findings are based on the joint testimony of Carmen
Velazquez and Miguelina Medina.5 Medina's testimony
further shows that she almost always travels with Carmen
on the company bus on the way back to Rio Grande at the
end of the workday. On the day here in question she
accompanied Carmen to the latter's parental home to pick
up something there.
For its defense, the Union called the three
above-mentioned occupants of the Volkswagen identified
by Carmen and Miguelina. They admit that they were in a
Volkswagen owned and driven by Rodnguez about 4:00
p.m on the day here in question and that they had had an
encounter with some women who were on foot, but claim
that there was a group of them, not only two women, and
that Rodriguez, age 23, merely passed the remark, "Look at
the group of beautiful girls," loud enough to be heard on
the outside to which one woman took sharp offense by
of Carmen's parents to pick up Carmen's children The Examiner accepts
Carmen s version that the incident happened on the way to her parents
home However. the important thing is that the incident did happen
whether before or after the women had called at Carmen's parental home
to pick up the children
INTERNATIONAL ASSOCIATION OF MACHINISTS 55
replying obscenely to him. They further denied that they
recognized Carmen and Miguelina in the group. Thus
Respondent 's witnesses admit an encounter with some
ladies at the time and place here involved, but have an
entirely different version of what occurred at the encounter
than that related by Carmen and Miguelina. The Examiner
does not credit the version of the occupants of the
Volkswagen as to what occurred at the encounter, not only
because of demeanor factors, but also because the version
of the incident by Carmen and Miguelina is the most
natural to believe in view of the bitterness and hostility this
record and the prior record before Trial Examiner Vose
show that the strikers felt against the nonstriking employ-
ees. Moreover, it is not very likely that young Rodriguez
would have passed kidding remarks about beautiful ladies
to Mrs. Matta and her father who directly or indirectly were
so involved in the strike.
The Examiner further finds and concludes that the threat
made by Rodriguez to Carmen was part of a continuing
plan by the Union to intimidate nonstriking employees to
quit their jobs with the Company.
4. January 9, 1970-re: paragraph VII (5) of the
complaint
An incident similar to the above occurred to Carmen
Velazquez on January 9, 1970, as she got off the company
bus at the Villa De Rio Grande around 4:00 p.m. At that
time she was approached by a car driven by Alberto Ramos
in which Gerardo Rodriguez and a man known only by the
name of "Maternillo" were passengers . All three occupants
of the car were strikers . From the car Maternillo addressed
Carmen and called her a strikebreaker and threatened to
strip her clothes off and even to burn her home.
The above findings are based on Carmen's credited
testimony. The Union called Alberto and Gerardo as
defense witnesses. Although they differed sharply with
Carmen as to where they saw her on the day in question,
they admit that they had an encounter with her on that date
in Rio Grande, but deny that Maternillo made any threats
to Carmen. Instead they testified that they all looked at her
because she was carrying a weapon (a rod) and that
Carmen said to them, "What the hell are you looking at
me?" Maternillo replied to her, "That was not an
expression for a lady, strike breaker." Alberto, age 37, and
Gerardo, age 27, had 11 and 6 years of employment with the
Company, respectively, prior to going on strike on October
28, 1969. The record does not reflect Maternillo's age or
length of service with the Company prior to the strike, but
the evidence shows that he served on the picket line up to
just a few days prior to the trial herein in April 1970. The
Examiner does not credit their version of the encounter
they had with Carmen.6
The Examiner further finds and concludes in the light of
the entire record in this proceeding and in the prior
proceeding that the threat made by striker Maternillo to
Carmen in the presence of two other strikers was part of a
continuing plan by the Union to intimidate nonstriking
employees to quit their jobs with the Company.
5. January 8, 1970-re: paragraph VII (4) of the
complaint
On the afternoon of Thursday, January 8, 1970. the day
before the incident described above , a similar incident
happened to nonstriking employee Tomas Sanchez Melen-
dez, a man who appeared to be in his fifties who has been
working for the Company since 1959. As he got off a bus
some 2 miles from his home that afternoon after work, he
was approached by a group of strikers , one of whom,
Hector Baez, threatened to put an end to the situation by
force of bombs and fire if Sanchez and others returned to
work the following Monday. As will be shown below, a
company bus carrying nonstriking employees was actually
firebombed the following Monday, with resulting serious
bodily injuries to some of the nonstriking employee
passengers.?
Baez admits trying to talk to the nonstriking employees as
they got off the bus in an effort to dissuade them from
working at the plant during the course of the strike, but
denies making any threats as stated by Sanchez against the
nonstrikers. This denial by Baez who worked for the
Company for some 10 years until the strike is not credited.
But it is established through Baez' testimony that some of
the nonstrikers on the bus were armed with knives and
machettes with which to defend themselves and that some
of the strikers and nonstrikers , including Baez and Sanchez,
were hauled by the police before a judge who said that the
nonstrikers were justified in arming themselves , but refused
to issue any criminal charges against any of the people
brought before him because of lack of evidence of any
violations of the law.
The Examiner further finds and concludes in the light of
the entire record in this proceeding and in the prior case
that the threat made by Baez to Sanchez was part of a
continuing strategy by the Union to intimidate nonstriking
employees to quit their jobs with the Company.
6. January 12, 1970-re: paragraph VII (6), (7),
and (8) of the complaint
Of all the incidents of strike misconduct here involved,
the most violent took place on January 12, 1970, with
resulting serious bodily fire burns to a number of
nonstriking employees . On that date about 4:15 p.m. a
number of buses transporting nonstriking employees out of
the Company 's plant approached the rear gate of the plant
grounds that leads directly into the community of Palmer.
At that time there were about 100 strikers at the gate and
along the access road from the gate to State Road No. 3
which is the main street of Palmer . As the second of a
caravan of 6 company buses approached the spot where
most of the pickets were , it came to a near stop in order to
6 The Examiner similarly does not credit the testimony of Ruperto
Vazquez , called by General Counsel to corroborate the testimony of
Carmen but who in fact contradicted her testimony in important aspects
on the incident under discussion , as well as the testimony of Alberto and
Gerardo on the same incident . This does not , however , affect the admitted
fact that an encounter did in fact occur between Alberto, Gerardo. and
Maternillo . on the one hand, and Carmen , on the other . The witnesses
differ only as to what was said between Carmen and Maternillo . As noted
above . the Examiner credits Carmen's version of the episode.
7 The findings of the above paragraph are based on the credited
testimony of Sanchez.
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
make a short turn to the left onto State Road No. 3 where a
Baptist Church is located.
Among the women on the second bus were nonstriking
employees Monserrate Fuentes, Carmen Maria Diaz, and
Luz A. Martinez. The composite testimony of these three
employees show that as their bus neared the church,
Nicolas Matta, the aforementioned right-hand man of
strike leader Maldonado, threw a can of inflammable fluid
into the bus through its door and a nearby open window,"
drenching it and a number of its occupants. Immediately,
another striker, William Rosario, who was standing next to
Matta, threw a lighted object at the part of the bus that had
been drenched with the liquid 9 The bus immediately burst
into flames. At least four identified nonstrikers in the bus,
besides other unidentified persons, were burned as a result
of the flames which engulfed the inside of the bus. One
employee, Zelmina Gonzalez Matta, was seriously burned
on her shoulders, back, and neck, while another nonstriking
employee, Paulma Ramos Fuentes, was still hospitalized at
the time of the trial herein, some 3 months after the
incident, as a result of the burns received in the bus As the
occupants fled from the burning bus, they were chased by
strikers carrying sticks and stones. Several sought refuge in
nearby houses where they became captives because of the
taunting threats of physical violence from strikers if they
came out. Finally they were evacuated und:: police
protection around 7 p.m that night.
On the same day around 5:30 p.m, Rosario, who had
participated in setting the bus on fire, was involved in a
further act of violence at the same scene At that time a
large caravan of cars of supervisory personnel coming from
the plant reached the place where the bus had been burned.
Personnel Manager Manuel Laborde Montanez was
driving one of the cars and the car directly ahead of him
was being driven by Company Engineer Dale Wheeler.
Laborde's credited testimony shows that as the cars were
passing by the church a man whom he didn't know at the
time but later positively identified as Rosario from
photographs, smashed the windshield of the car driven by
Wheeler with a big pole Wheeler also testified to the
incident but was unable to identify the assailant because
the event "happened so fast I put my arm up [over his eyes]
in a reflex action." But just prior to the moment his
windshield was smashed, Wheeler saw Franklin Luperoy, a
well-known active striker, talking to a man at his side and
pointing out by gesture to him Plant Manager Esperson
who was sitting alongside Wheeler in the latter's car.10
The Union's first defense to the burning bus incident is
that General Counsel's "witnesses were not able to
demonstrate clearly, without doubt, the responsibility of
Matta and Rosario " The short answer to this contention is
that Matta and Rosario were not called to deny their
responsibility for the burning of the bus Thus the
composite testimony of General Counsel's witnesses that
Matta and Rosario put the bus on fire is uncontested,
stands undisputed, and is fully credited
x While most of the windows were boarded up from the outside with
plywood to prevent breakage, the window here in question was not covered
and could be seen through
" Juan Nieves an active striker was on picket duty at or near the scene
of the bus burning from I to 9 p m on the day of the burning His
testimony that he did not see Rosario at any time while on picket duty that
The Union's second defense to the burning bus incident
is that "General Counsel failed to introduce any evidence
connecting the incident to the Union." The circumstantial
evidence clearly shows that the Union was responsible for
the fire bombing of the bus. The act took place virtually on
the picket line. Some 100 strikers were at the scene. The bus
contained the hated nonstriking employees who were
threatening the success of the strike. One of the two men
responsible for the burning of the bus was strike leader
Maldonado's right-hand man, Matta. It was the responsi-
bility of the Union to have taken steps to avoid such
physical violence from the picketers on the picket line.
There is no evidence that it took any measures to prevent
violence. The record as a whole fuither supports the
conclusion that the Union condoned what was done in
order to frighten and scare the "strike breakers" into
quitting their fobs with the Company in order to force the
Company into a settlement of the strike issues.
As to the incident of Engineer Wheeler's smashed
windshield, the Union has three defenses. The first is
testimony by striker Luperoy whom Wheeler had identified
as being with the man who smashed his windshield whom
Laborde identified as Rosario. Luperoy admits being in the
general area all day where the bus was burned but denies
that he saw either Wheeler or Plant Manager Esperson or
that Rosario was around at all during the afternoon here in
question when the bus was burned and Wheeler's
windshield was smashed. The Examiner does not credit
Luperoy's testimony. The Union's second defense to the
testimony given by Wheeler and Laborde with respect to
the smashed windshield is that their testimony should not
be credited. The short answer to this defense is that Rosario
did not take the stand to deny that he had smashed the
windshield of Wheeler's car. The record stands undisputed
that someone smashed Wheeler's windshield on the day
here in question. The testimony of Personnel Manager
Laborde that the smashing was done by Rosario is fully
credited The Union's third defense, here as in the burning
bus incident, is that General Counsel "also failed to
establish any relation between this incident and the strike
or the Respondent [Union]." The connection of the
smashed windshield to the strike and the Union's
responsibility for the incident is inferred from the double
fact that Rosario is an active striker and that he was a direct
participant with strike leader Matta in the fire bombing of
the company bus
D. Maldonado's Involvement in the Strike
Misconduct
In the earlier strike misconduct case against the Union
and strike leader Maldonado, Examiner Vose found, as
heretofore indicated, that "Maldonado personally partici-
pated in the blocking of the company officials ' cars as they
were attempting to enter the plant, Maldonado personally
threatened nonstriking employees as they were attempting
day is not credited Similarly his testimony that he did not see Matta in the
area of the bus burning until an hour and a half or so after the bus was
burned is not credited
W The findings of the above paragraph are based on the composite
testimony of Wheeler and Laborde
INTERNATIONAL ASSOCIATION OF MACHINISTS 57
to enter the plant, and Maldonado was present during
numerous incidents of misconduct by pickets but did not
protest or attempt in any way to disassociate the IAM from
what was going on." Examiner Vose also found that, "The
conduct of the pickets on the picket line in the incidents [as
set forth in his Decision] followed the pattern thus
established, or followed the example set by the acts of
Maldonado himself."
In the instant case there is no direct evidence that
Maldonado was personally involved in any of the incidents
or strike misconduct found herein or that he was even
present when these incidents took place.
But the record, however, shows that Maldonado, as strike
leader, kept in close touch with the strikers as they engaged
in strike activities through loyal strikers who reported to
him by telephone at regular intervals as to what was going
on. Thus the record shows that striker Pablito Ascencio
kept Maldonado informed by telephone of what was going
on on December 15, 1969, the day the Company began to
transport its nonstriking employees to and from its plants in
company buses as a regular procedure As shown above,
the buses were stoned by strikers on their way home from
the plant to Rio Grande and at Rio Grande where the buses
stopped to dislodge its passengers. As the occupants left the
bus they were pelted by the strikers with missiles of various
sorts Ascencio telephoned Maldonado from Rio Grande to
tell him what was happening there after the buses had
arrived and began to unload its passengers It is inferred
from the record that after the first trial before Trial
Examiner Vose which showed Maldonado's personal
involvement in the earlier incidents of strike misconduct
that Maldonado either on his own or more likely through
the advice of counsel went underground during the period
her involved from which he directed the strike activities
behind the scenes through trusted aides but was nat really
letting up on his original strategy of employing violence and
threats to intimidate the nonstriking employees to quit their
jobs with the Company and the Company to shut their
plants until a strike settlement was reached This is reflected
in the fact that incident after incident of strike violence and
threats occurred against nonstriking employees from
December 15, 1969, through January 12, 1970, without
anything in the record to show that Maldonado did
anything to stop such conduct On the contrary, the record
supports the inference that Maldonado condoned the
unlawful conduct by his silence as there is no evidence that
Maldonado said or did anything in any way to disassociate
himself or the Union from the burning bus incident in
which his right-hand strike aide, Nicolas Matta, took such
a prominent part by throwing a container of inflammable
fluid into one of the company buses. There is no evidence
that Maldonado ever reprimanded Matta for the act or
offered any apologies to the Company for the incident or
gave it any assurances that he would take all necessary
measures to prevent a reoccurrence of such violence on the
part of the strikers The record in Case 24-CA-2820 shows
that the Union was dealing with a stubborn employer who
was determined to postpone union recognition and
collective bargaining as long as possible i i It is evident that
Maldonado knew this and was determined to use whatever
force necessary to bring the Company to the bargaining
table for serious bargaining. But the obdurateness on the
part of the company does not justify the strike misconduct
herein found.
Maldonado and striker Ascencio in their testimony
sought to attribute the stone throwing at company buses
and its occupants at Rio Grande on December 15, 1970, to
persons other than the strikers, such as university student
sympathizers The Examiner does not credit such testimo-
ny. The record is overwhelming that the stone throwing was
done by strikers
From the record as a whole the Examiner finds and
concludes that the strike misconduct herein found,
following the pattern shown in the earlier case, is
attributable to the Union and its strike leader Maldonado.
E The Law Governing Union Responsibility for
Strike Misconduct and Conclusions
The law applicable for union responsibility for strike
misconduct by strikers has been well stated by Trial
Examiner Vose in the earlier case as follows
It is settled that where . a picket line is the scene
of repeated acts of misconduct, to the knowledge of the
union conducting the picketing, the union has the duty
to take steps reasonably calculated effectively to curb
the misconduct, and failing this the union may be held
responsible for resulting restraint and coercion of
employees. Local 5881, United Mine Workers (Grundy
Mining Co ) 130 NLRB 1181,1182 enfd 296 F 2d 734 (C A
6): United Steelworkers of America (Vulcan-Cincinnati,
Inc), 137 NLRB 95, 98; Local 3, International Brother-
hood of Electrical Workers etc (New Power Wire and
Electric Corp), 144 NLRB 1089,1091-1092, enfd. 340 F.2d
71 (C A. 2); Teamsters Local 783, International Brother-
hood of Teamsters (Coca-Cola Bottling Company of
Louisville), 160 NLRB 1776, 1779; Congreso De Uniones
Industriales De Puerto Rico, Ind. (Gayley Rico Company),
163 NLRB 448,450-453
Furthermore, even as to conduct occurring outside
the presence of acknowledged union agents and without
the knowledge of the union conducting the picketing,
the union may be held responsible for such conduct
where it follows a pattern established by acknowledged
union agents As held in International Woodworkers of
America, AFL-CIO (W T Smith Lumber Co), 116
NLRB 507, 508-509, enf. 243 F 2d 745 (C A 5).
As to the misconduct by pickets. . .We agree with
the Trial Examiner that the Respondents were liable
therefore. However, unlike the Trial Examiner, we do
not predicate such responsibility on the absence of any
evidence that any picket captain sought to prevent such
misconduct. As it does not appear from the record that
any picket captains were in fact present on such
occasions, we impute responsibility to the . Local
for such misconduct rather on the fact that it
conformed to a pattern established by the officers and
agents of that Local through their own unlawful acts of
I' In that noted case the present Trial Examiner as heretofore noted
issued a Decision in which he found the Company in violation of Section
8(a)(5) of the Act for failure to bargain with the Union as requested
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coercion and restraint
More recently the Board in Teamsters Local115,
International Brotherhood of Teamsters (E J Lavino &
Company), 157 NLRB 1637, stated the proposition as
follows
This attitude of the Respondent's business
agent coupled with the restraint and coercion
practiced by the Union's picket captains is
sufficient to make the Union legally responsible
for the restraint and coercion practiced by other
strikers who were but following the pattern laid
down by Respondent's agents
That this proposition is applicable to conduct away
from the picket line, as well as on the picket line, is
clearly stated in International Union of Electrical
Workers, (The Sperry Rubber & Plastics Company), 134
NLRB 1713, 1724
Under the above applicable law as applied to the findings
of strike misconduct found herein, the Examiner finds and
concludes that the Union and strike leader Maldonado are
in violation of Section 8 (b)(1)(A) of the Act
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, the examiner makes the
following
CONCLUSIONS OI LAW
I By permitting a group of strikers to attack a group of
nonstrikers being transported in company buses from the
Company's plant to their homes, the Union and Juan L
Maldonado, grand lodge representative of the Union,
engaged in restraint and coercion of employees in violation
of Section 8(b)(1)(A) of the Act
2. By permitting one or more strikers to approach the
parental home of a nonstriking employee where she lived
and there to throw fire bombs against the adjacent business
property of her father, the Union and Maldonado engaged
in restraint and coercion of employees in violation of
Section 8(b)(1)(A) of the Act
3. By permitting a striking employee to threaten a
nonstriking employee with bodily harm to prevent her from
continuing to work during the strike, the Union and
Maldonado engaged in restraint and coercion of employees
in violation of Section 8(b)(1) of the Act
4 By permitting a striking employee to warn and
threaten a nonstriking employee with the fire bombing of
company buses he used to enter and leave the Company's
premises unless he discontinued the use of such buses, the
Union and Maldonado engaged in restraint and coercion of
employees in violation of Section 8(b)(1)(A) of the Act
5. By permitting a striking employee to threaten a
nonstriking employee that her home would be burned if she
continued to work at the company plant during the strike,
the Union and Maldonado engaged in restraint and
coercion of employees in violation of Section 8(b)(l)(A) of
the Act
6. By permitting two strikers to fire bomb a company
bus transporting nonstriking employees shortly after the
bus had left company premises and by further permitting
the strikers to pursue and threaten the nonstriking
employees as they alighted from the burning bus with
further attacks if they persisted in working at the plant
during the strike, the Union and Maldonado engaged in
restraint and coercion of employees in violation of Section
8(b)(1)(A) of the Act
7 By permitting a striker to attack and break the
windshield of an automobile transporting supervisors and
nonstriking employees, the Union and Maldonado engaged
in restraint and coercion of employees in violation of
Section 8(b)(l)(A) of the Act.
8. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
THE REMEDY
In view of the repeated and serious nature of the acts of
strike misconduct committed by the Respondent Union
under the leadership of its agent Respondent Juan L.
Maldonado in violation of Section 8(b)(1)(A) of the Act, an
order will be recommended to direct the Union and
Maldonado not only to cease and desist therefrom, but also
to cease from in any other manner restraining or coercing
employees in the exercise of their Section 7 rights.
ORDER
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, it is recommended that Respondent International
Association of Machinists and Aerospace Workers,
AFL-CIO, its officers, agents and representatives, and
Respondent Juan L Maldonado, agent and grand lodge
representative of the said International Association of
Machinists and Aerospace Workers, AFL-CIO, shall:
I Cease and desist from
(a) Inflicting or threatening to inflict bodily harm on any
employee of the Company.
(b) Causing damage to the automobiles, buses, or other
property used by the Company's employees to carry on the
Company's business operations.
(c) Attacking the homes of nonstriking employees or
other employees of the Company who fail or refuse to
support the Respondents
(d) Injuring or attempting to attack and inflict bodily
harm on any employee of the Company by any means
including the use of incendiary devices, rocks, or clubs.
(e) Blocking the ingress or egress of company officials,
supervisors, or other employees or harassing and threaten-
ing them while they are going to or from the Company's
plant or plants.
(f) Allowing large numbers of its members to pursue and
threaten employees of the Company who fail or refuse to
join or engage in any activity of the Respondents.
(g) In any other manner intimidating, harassing, coercing,
and restraining any employee in his right to refrain from
joining in or supporting any union or other concerted
activity of the Respondent Union
INTERNATIONAL ASSOCIATION OF MACHINISTS 59
2 Take the following affirmative action which it is
found will effectuate the policies of the Act
(a) Post in conspicuous places in its business office,
meeting hall, and other places where it customarily posts
notice to its members, signed copies of the attached notice
marked "Appendix," together with a Spanish language
translation thereof.'2 Copies of said notice, together with a
Spanish language translation thereof, on forms provided by
the Regional Director for Region 24, after being duly
signed by Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt
thereof, and be maintained by it for a period of 60
consecutive days thereafter, in conspicuous places Reason-
able steps shall be taken by the Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(b) Mail to the Regional Director for Region 24 signed
copies of attached notice, together with a Spanish language
translation thereof, for posting by General Electric
Company Circuit Protective Devices Department, Caribe
Plant Operations; General Electric Power Products, Inc.,
and General Electric Circuit Breakers, Inc., if they are
willing, in places where notices to their employees are
customarily posted Copies of said notice in Spanish and in
English, to be furnished by said Regional Director, shall,
after being signed by the Respondent as indicated, be
forthwith returned for disposition by him
(c) 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.13
General Counsel's motion that that part of his brief under
the caption "B Events in the Current Case" be considered
as an amended complaint is hereby denied. The motion
lacks the particularity required of any motion for
consideration.
12 In the event that the Board's Order is enforced by ajudgmentof a
United States Court of Appeals, the words in the notice reading "Posted
By Order Of The National Labor Relations Board" shall be changed to
read "Posted Pursuant To A Judgment of the United States Court of
Appeals Enforcing an Order of the National Labor Relations Board '
1 o In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director in
writing, within 10 days from the date of the Order, what steps Respondent
has taken to comply herewith "