La Casa Oldsmobile

National Labor Relations Board - Board Decisions

May 4, 1950

89 N.L.R.B. 976 (N.L.R.B. 1950)

In the Matter Of MIGUEL FIRPI , D/B/A LA CASA OLDSMOBILE and
CONFEDERACION GENERAL DE TRABAJADORES DE PUERTO Rico
(AUTENTICA )
Case No. 38-CA -04.-Decided May 4,1950
DECISION
AND
ORDER
On January 24, 1950, Trial Examiner J. J. Fitzpatrick issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices in violation of Section 8 (a) (1) and (3) of the Act, as
amended, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found
that the Respondent had not engaged in certain other unfair labor
practices as alleged in the complaint, and recommended that the com-
plaint be dismissed as to these particular allegations.' Thereafter,
the Respondent filed exceptions to the Intermediate Report and a
supporting brief.
The Board 2 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 Inter-
Inediate Report, the Respondent's brief and exceptions, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Miguel Firpi,
' No exceptions were filed to so much of the Intermediate Report as recommends that the
complaint be dismissed' as to certain allegations . Accordingly, we shall adopt such recom-
mendations without passing upon the issues involved.
2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this proceeding to a three-member panel
[ Chairman Herzog and Members Houston and Styles].
89 NLRB No. 131.
976
0
LA CASA OLDSMOBILE 977
d/b/a La Casa Oldsmobile, San Juan, Puerto Rico, and his, officers,,
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Confederation General de Traba-
jadores de Puerto Rico (Autentica), or in any other labor organization,
of his employees, by discriminatorily discharging employees or by
discriminating' in any other manner in regard to their hire or tenure
of employment or any term or'condition of employment;
(b) In any other manner interfering with, restraining, or coercing
his employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Confederation General de Traba-
jadores de Puerto Rico (Autentica), or any other labor organization,,
to bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from any
or all of such activities except to the extent that such right may be
affected by an agreement requiring membership in a labor organization
as a condition of employment as authorized in Section 8 (a) (3) of the
Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer to Victor Chapman immediate and full reinstatement to
his former position or to a substantially equivalent position without
prejudice to his, seniority or other rights and privileges, and make
him whole for any loss of pay he may have suffered by reason of the
Respondent's discrimination against him, by payment to him of a sum
of money equal to that which he normally would have earned as wages
from the date of the Respondent's discrimination against him to the
date of the Respondent's offer of reinstatement, less his net earnings
during the period ;
(b) Post at his shop in San Juan, Puerto Rico, copies of the notice
attached to the Intermediate Report, marked Appendix.3 Copies of
said notice, to be furnished by the Regional Director for the Twenty-
fourth Region, 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 there-
after, in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken
a Said notice, however, shall be, and It hereby is, amended by striking from line 2 thereof
the words The recommendations of a Trial Examiner" and substituting in lieu thereof the
words "A Decision and Order." In the event that this Order is enforced by a decree of
a United States Court of Appeals, there shall be inserted before the words, "A DECISION
AND ORDER," the words, "A DECREE OF THE' UNITED STATES COURT OF APPEALS
ENFORCING."
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the Respondent to insure that said notices are not altered, defaced,
or covered by any other material;
(c) Notify the Regional Director for the Twenty-fourth Region
(Santurce, Puerto Rico) in writing, within ten (10) days from the date
of this Order, what steps the Respondent has taken to comply there-
with.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Mr. Lewis Moore, for the General Counsel.
Mr. Wilson B. Colberg, of San Juan, P. R., for Respondent.
Mr. Francisco Colon Gordiany, of San Juan, P. R. for the Union.
STATE\iENT OF TAE CASE
Upon charges duly filed by Confederacion General de Trabajadores de Puerto
Rico ( Autentica ), herein called the Union, the General Counsel of the National
Labor Relations Board, called respectively the General Counsel and the Board,
by the Regional Director of the Fifth Region ( Baltimore , Maryland ), issued a
complaint dated August 30, 1949 , against Miguel Firpi, an individual doing
business as La Casa Oldsmobile , herein called the Respondent , alleging that
Respondent had engaged in, and was engaging in , unfair labor practices affect-
ing commerce within the meaning of Section 8 (a) (1), (3 ), and (4), and
Section 2 (6) and ( 7) of the National Labor Relations Act, as amended (61
Stat . 136), herein called the Act . Copies of the charges were duly served on the
Respondent and the Union, as were also copies of the complaint and notices of
hearing thereon.
With respect to the unfair labor practices , the complaint as amended at the
hearing,2 alleges in substance :
1. That the Respondent from about June 5, 1948 , to the date of the complaint,
interfered with the statutory rights of his employees by (a) urging them not
to join the Union , ( b) questioning them about their membership in the Union,
(c) threatening to close the plant if the employees continued their activity for
a union, and (d ) polling them as to their membership in the Union.
2. On or about July 17, 1.948, discharged and locked out six employees' and
has since failed and refused to reinstate them because they joined or assisted a
labor organization or engaged in concerted activities with other employees for
the purposes of collective bargaining or other mutual aid or protection.
The Respondent 's answer , filed on September 14, 1949, admits certain allega-
tions of the complaint with reference to the nature of his business , but denies
i On the second clay of the hearing, Secretary Castro of the Union entered an appearance
for that organization.
2 The original complaint alleged the discharge about June 24, 1948, of Ruperto Font and
the failure thereafter to reinstate him because he joined or assisted a labor organization or
engaged in concerted activities with other employees, in violation of Section S (a) (3) : and
also alleged the discharge of Pablo Andino on or about December 16, 1948, and the failure
thereafter to reinstate him because lie joined or assisted a labor organization or engaged in
concerted activities with other employees, "and/or" because he gave testimony under the
Act to an agent of the Board about December 14. 1948. in violation of Section 8 (a) (3)
and (4) of the Act. During the presentation of his case the General Counsel's motions
were granted to dismiss with prejudice as to Font and Andino because of their failure to
appear at the hearing.
3 Juan Martinez, Jose Berrios Cintron, Bonifacio Roman, Alonso Mestay. Victor Chapman,
and Pedro Rosario.
LA CASA OLDSMOBILE 979
the allegations of interference and discrimination, and alleges that the six
employees' named in the complaint were discharged for lack of work, and that
two of them, âIestay and Roman, have since been reinstated.
Pursuant to notice, a hearing was held on September 20, 21, and 24, 1949, at
San Juan, Puerto Rico, before J. J. Fitzpatrick, the undersigned Trial Examiner
duly designated by the Chief Trial Examiner. All parties were represented by
counsel, participated in the hearing, and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence bear-
ing on the issues. At the close of the hearing the parties waived oral argument
and the filing of briefs and/or proposed findings of fact and conclusions of law.
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Miguel Firpi, doing business as La Casa Oldsmobile, is engaged in the busi-
ness of importing from the States and selling in the island of Puerto Rico,
Oldsmobile automobiles, automotive parts and supplies, and in the repairing and
servicing of automobiles and automotive equipment. His annual imports from
the States exceed $100,000 in value, as do his annual sales and services in the
island. Respondent admits and I find that lie is engaged in commerce within the
meaning of the Act.
It. THE ORGANIZATION INVOLVED
The Confederacion General de Trabajadores de Puerto Rico (Autentica) is a
labor organization within the meaning of Section 2 (5) of the Act, admitting to
membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background
The Respondent has been the insular representative of the Oldsmobile Division
of General Motors Company, Lansing, Michigan, since the year 1939, with office,
display room, and shop located at San Juan, Puerto Rico. In 194S, he employed
approximately 17 shop workers, including machinists, painters, polishers, and
laborers. What is described as the paint and polishing department of the shop
consisted, up to the middle of July 1948, of 1 painter, 4 polishers, and 2 helpers, all
working on a straight salary basis.'
Until the early summer of 1948, none of Firpi's employees were organized, but
about the first of June of that year the Union came into the shop and in an elec-
tion held on July 12, 1948, the shop employees voted unanimously for the Union
as their bargaining representative. Since the election Respondent has negotiated
with the Union as the representative of his shop employees and at the time of
the hearing, a contract was in existence and amicable relations existed between
the Respondent and the Union. The complaint herein developed as a result of
activity prior to and about the time of the above election.
B. Interference
. On June 10, 1948, a San Juan newspaper contained an article about the for-
mation of a union in the Respondent's plant. At the time, Firpi was in the
The record indicates that the polishers and those classed as helpers received about the
same pay and presumably did about the same type of work.
S89227-51-vol. 89-63
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
States trying to arrange for more automobiles to be shipped to him, and his man-
ager, Herminio Romano, became very concerned. He called a meeting of the shop
employees and criticized them for organizing without consulting with manage-
ment. He then polled these employees to ascertain who was for or against the
Union' Romano denied that he polled the employees or talked to them individu-
ally. He testified that he simply called the shop employees together and asked
if it was true that they had formed a union as he would have to notify Firpi
about it, and that at the same time he told them that they had a right to form
a union. However, Romano also testified that an hour after this interview with
the employees he went to the spbregional office of the Board in San Juan for
advice as to what he should do under the law. It appears reasonably obvious
that if at the time he spoke to the employees be did not know what his rights and
obligations were as part of management, he could not then have advised the
employees as to their rights. His testimony that at the June 10 interview with
the employees, he did not question or poll them as to their interest in the Union,
is therefore rejected.
About the time of the above incident, Pedro Rosario, who helped organize the
Union, was called aside by his "immediate supervisor, Shop Foreman Pedro Ma-
lave, who told Rosario that he had seen the latter's name in the newspaper
account of the formation of the Union at the Respondent's plant and added:
"You are a new fellow here and you should not get mixed up in this." Malave
at the time also asked for and secured from Rosario the names of most of the
union leaders. July 14, 2 days after the Union won the election, Malave told
a group of union employees (including some of the union officers) according to
the testimony of Alonso Mestay, that Respondent would "cooperate" more with
the Union if Union President Ruperto Fonts was displaced by some other em-
ployee who knew what was "going on" in the shop. Epifauio Quinones (then
union vice president but later elected union president after Font was laid off)
corroborated Mestay. Malave denied that he had warned or questioned Rosario
about the Union or that he had suggested to Quinones and other employees that
the union president be displaced. In fact, he testified that he had never talked
with any of the employees about the Union. I credit the testimony of Rosario,
Mestay, and Quinones in the above respect, especially since there,is other credible
testimony of reference to the Union by Malave in talks to other employees, as
w ill hereafter appear.'
Miguel Firpi returned from the States about June 18. He immediately sought
advice from his attorney relative to the organization of the Union and, a few days
prior to the time set for the employees by secret ballot to decide whether they
wanted the Union as their bargaining representative, he called the shop employees
together during working hours and told them that he would consider a vote for
the Union as an indication of lack of confidence in management, but also frankly
s The above findings are based on a. reconciliation of the testimony of employees Juan
Martinez, Victor Chapman, Pedro Rosario, Jose Berrios Cintrion, Epifauio Quinones, and
Alonso Mestay.
The complaint alleged the discriminatory discharge of Font on June 24, but this
allegation was dismissed at the hearing when Font failed to appear and testify. See
footnote 2. supra.
4 Alonso Mestay testified that on July 14 he heard Jose Berrios Cintron ask Malave for a
raise in pay and at the time Malave told Cintron and Mestay that they were entitled to
raises which Firpi had been considering granting, but "with this Union business, he is not
in a disposition to grant raises." Cintron in his testimony made no mention of this incident
and in view of Malave's flat denial thereof, Mestay's testimony, lacking corroboration, is
not credited in this respect.
LA CASA OLDSMOBILE 981
advised the employees that they had the right to select a representative of their
own choice. The statement contained no threats of reprisals nor promises of
reward and as an expression of opinion is protected by Section 8 (c) of the Act.
Victor Chapman testified credibly that frequently from the inception of the
organizing in the shop, Shop Foreman Malave inquired from him, as well as other
employees, as to the progress the Union was making.' Chapman because of ill-
ness was absent from work part of the week immediately preceding the election
held in the plant on Monday, July 12. He testified that during this illness, Man-
ager Romano visited with him at his home; that during the course of the visit
Romano asked him what his "thoughts were concerning the Union" and that he
replied that it was a "good idea" ; that Romano pressed him further and wanted
to know "exactly" what his "idea" of the Union was, whereupon Chapman stated
that he "would remain more or less neutral" ; that Romano then urged him to
get well "so that Monday you can go back to the shop and vote." Romano denied
that he had ever been at Chapman's home, or, in effect, that he had ever discussed
the Union with him. In addition to the fact that Chapman has been heretofore
found to be a reliable witness, and Romano's denial as to the June 10 polling of
employees has not been credited, there are other circumstances that lead me to
believe that Chapman's 'testimony in this instance is substantially correct.
Romano knew that Firpi had recently told the employees that he would consider
a vote for the Union as an indication of lack of confidence in management. Chap-
man as the only painter in the plant and the highest paid man in the paint and
polishing department, although not a supervisor, was regarded, at least by man-
agement, as a leader in his department, if not in the entire shop. True Chapman,
as well as others in the shop, had indicated to Romano On Sine 10 that he favored
the Union; but he was not active for the organization and management knew who
the active union employees were. Chapman was therefore the logical worker to
approach if the Union's apparent strength among the employees was to be
attacked. Under the circumstances, I am satisfied and find that Romano sought
to influence this important employee not to support the Union, and having appar-
ently met with success in this respect, urged him to be on hand when the votes
for and against the Union were being cast. This finding is further supported by
uncontroverted testimony that Chapman received full pay for time lost during
this preelection illness, although on all previous absences for sickness his lost
time was deducted from his wages.
I find that the Respondent, by Manager Romano's polling the shop employees
on June 10 whether they favored the Union or not and his later questioning of
Victor Chapman prior to the election, by Foreman Malave's questioning of Chap-
man as to the Union's progress, and of Rosario about the union leaders, his
statement to Rosario that the latter should not get "mixed up" in the Union as
he was a new employee, and Malave's attempt on July 14 to have the employees
change the presiding officer of the Union after the Union had been selected as the
bargaining representative of the shop employees, has interfered with, restrained,
and coerced his employees in the exercise of their rights as guaranteed in Sec-
tion 7 of the Act and in violation of Section 8 (a) (1) thereof.
8 Malave denied that he asked Chapman how the Union was getting along, or that he ever
talked to him about the Union . As hereinbefore appears, Malave's denials that he talked
about the Union to other employees have not been credited . Chapman, although some-
times confused as to dates, appeared to be a frank witness testifying honestly and to the
best of his knowledge and ability. Malave's denials that lie talked to Chapman about the
Union are therefore not credited.
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The layoffs of July 17
On July 17, 1948, Respondent discontinued the paint and polishing department
and laid off all personnel therein on the ground that the department was being
operated at a loss.' Thereafter for several weeks such painting or polishing work
as was needed in the conduct of the Respondent's business was sent to another
local automobile concern, De La Cruz garage. However, on or about September 10
following, Firpi rehired two of the polishers, Alonso Mestay and Bonifacio Roman
but on a piecework basis. About October 1, a painter was retained also on a
piecework basis. In selecting a painter, the Respondent ignered Chapman,
although he as well as some of the others laid off had applied for reinstatement.
Both owner Firpi and his manager, Romano, testified that from April to July
1948, the paint and polishing department had been losing money-that the
Respondent's records for the first 6 months in 1948 showed rout the department
was several thousand dollars in the red. There was no demand made that the
books of the Respondent be produced to verify these claimed losses and I must
assume losses were actually incurred in the period named. It is true that some
of the laid-off employees testified that there was enough work in the department
prior to July 17, but they were not all in accord in that respect- some of them
admitting that business was slow for several months prior to the layoffs. More-
over, there is other credible testimony that work was very slack during this
period, and it is undisputed that some of the employees in the department were
on occasion placed at odd jobs to keep them busy.
It has been heretofore found that the Respondent about and prior to the time
of the July 12 election interfered with the rights of his employees. While the
employees laid off on July 17 were union men and this occurred so soon after the
election that it is probable that Firpi was still perturbed by the "lack of confi-
dence" in him displayed by the favorable union vote,10 I am satisfied and find
from the preponderance of the credible testimony that the discontinuance of the
paint and polishing department and the laying off of all the employees therein
was not for a discriminatory motive but was brought about because of economic
and business necessity. The record shows further and I find that within a few
weeks after the discontinuance of the paint and polishing department, Firpi
began to reap the results of his trip to the States by securing more than his
previous quota of new automobiles for sale, and his business in other respects
thereafter increased after the summer slump.
The complaint alleges that the unhired polishers and helpers in the paint
and polishing department were discriminatorily refused reinstatement. This
allegation is rejected as not supported by the proof. I find that these employees
were not replaced by other workers, but on the contrary that the Respondent
since the reopening of the paint and polishing department has been able to
function normally by using the two rehired polishers, Mestay and Roman." I
Those so laid off were Victor Chapman, Juan Martinez, Jose Berries Cintron, Bonifacio
Roman, Alonso Mestay, and Pedro Rosario.
10 There is credible and corroborated, though denied, testimony, that when laid off on
July 17 Alonso Mestay questioned the statement that the department had been operating at
a loss, and that Foreman Malave replied, "In any case you did not cooperate-I told you
something would come of it-you should have voted in favor of the house-and you probably
would have continued working."
11 Both Mestay and Roman continued on a piecework basis for several months after the
reopening of the department, but 2 or 3 months prior to the hearing during a slack season,
at their request, were put on a salary basis.
LA CASA OLDSMOBILE 983
find, therefore. that Respondent did not discriminate in failing to rehire Martinez,
Cintron, and Rosario, and will recommend that the complaint be dismissed as
to them.
D. The refusal to reinstate Victor Chapman
A more difficult question arises as to whether the failure to rehire painter
Chapman was not discriminatory. The Respondent in his answer alleges that
Chapman, with the others in the paint and polishing department, were laid
off because of lack of work for them at the time. Aside from a general denial
that the refusal to reinstate was discriminatory, the answer does not explain
nor attempt to explain why Chapman was not reinstated; nor does the answer
allege that there was any dissatisfaction with Chapman's work.
Notwithstanding that Chapman's work was not put in issue in the pleadings,
the Respondent without objection sought to establish through cross-examination
of Chapman and by the testimony of Firpi, Romano, and Malave that Chapman
was not satisfactory as an employee." Firpi testified that Chapman reported
for work irregularly ; loafed on the job and at times left his work early claim-
ing illness; and, that, on occasions, investigation disclosed that Chapman was
not ill but was painting for other establishments. He also testified that he
criticized Chapman for these delinquencies. Manager Romano and Shop Fore-
man Malave both testified that Chapman was frequently absent from his work.
Romano also testified that both he and Firpi criticized Chapman for absenteeism.
Chapman on cross-examination admitted that he was late for work on "many
occasions." He admitted that in several instances, for periods ranging from
2 days to a week at a time, he was excused from work because of illness. He
testified that on all these occasions he was actually ill, and denied that he
ever left %vork and performed outside jobs. He further testified that on one
occasion, in 1947, Firpi asked him why more cars were not turned out daily
from his department and that he explained that.the hand polishing required
too much time and suggested that Respondent install mechanical polishers; that
thereafter when Firpi followed his suggestion and installed electric polishers,
the number of cars turned out daily increased from about 4 to from 9 to 12.
This testimony of Chapman's as to the 1947 incident was not disputed and is
credited.
Chapman estimated that during the period he worked for the Respondent
he was absent from work because of illness a total of 9 days. To this pre-
sumably should be added the 2 or 3 days Chapman was home ill the week
preceding the election, as it is not too clear whether he included those days
in his estimate. This would make a total of about 12 working days absence
in a period covering slightly over 1 year. The above is the only estimate in
the record as to Chapman's actual absences. Firpi, Romano, and Malave con-
fined their testimony in this respect to generalizations like "irregularity at
work," and "frequently" and "quite a few times" absent. As the Respondent
presumably had in his possession at the time of the hearing Chapman's time
carol (which would have shown the exact number of hours and clays Chapman
was absent from work) but did not produce them, I assume that Chapman's
estimate is not seriously disputed. I find therefore that he was absent from
"- As Chapman ' s work record was fully litigated , I am making findings thereon and also
whether unsatisfactory attendance at work was the reason for the failure to rehire him as
the Respondent seemed to contend at the hearing , even though he did not so allege in his
answer.
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work approximately 12 days during the period July 1, 1947, to July 17, 1948,
when he worked for the Respondent."
These absences from work for the period named certainly were not exces-
sive, provided Chapman was actually ill in each instance. Firpl's uncorro-
borated generalization that "on occasions" management investigated and found
that Chapman was doing outside work when he claimed to be sick must be
confined to the absences prior to the first full week in July 1948 when, as
previously found, Romano urged Chapman to get well so that he could vote
the following Monday. If the Respondent had actually "investigated" Chap-
man's two or three absences from work prior to that week and ascertained
that he was working elsewhere, the approximate (late or dates and place or
places where he had been found working should have been presented, so that
this testimony could be checked. Lacking such specifications, I am unable
to accept the generalization and find that Chapman did no outside work when
excused for illness.
Likewise, I accept Chapman's denial that he was ever criticized for loafing
on the job. Chapman wi s a painter and his job was to paint automobiles or
parts of them that came into the department. It is conceivable that prior to
the July layoff, Firpi, on the occasions when he left his office and went down
to the shop, noted that Chapman was not actually wielding a paint brush, as
it has been heretofore found, as contended by the Respondent, that work at
that time was slack in the department.
I find under all the circumstances herein outlined that Chapman's absences
from work, or his alleged loafing on the job, were not the operative causes of
Respondent's failure to reinstate him, but utilized as an afterthought. This
finding is buttressed by the failure of the Respondent in its answer to allege
that Chapman's work was in any -way unsatisfactory, and by the fact that on
his release on July 17, he (as well as all others laid off) was informed by
management that the layoffs were due only to losses in the department and
lack of work, and if there was "any change in the conditions stated" Respondent
"will be very glad to advise you, if you are available, and the Company deems
it convenient."
The Respondent knew that Chapman was inclined to favor the Union as a
result of the June 10 poll. As the highest paid man and leader in his depart-
ment.he was interrogated by Shop Foreman Malave as to the Union's progress
and, immediately prior to the election, Manager Romano urged him to be sure
and vote after Chapman had stated that he expected to be "more or less neutral"
about the Union. Finally, when the unanimous vote in favor of the Union was
announced, Respondent knew that Chapman had not been "neutral." In the
light of these happenings, I find that the Respondent refused to reinstate
Chapman to his former position 1" because of his membership in and activity for
the Union, thereby violating Section 8 (a) (3) and (a) (1) of the Act.
13 There is no suggestion in the record that Chapman's admitted tardiness in reporting
for work was criticized or had any material bearing on the failure to rehire him.
14 The fact that the painter finally hired to replace Chapman worked on piecework whereas
Chapman received a weekly salary of $40 is not too important. As a matter of fact, the
record discloses that the new painter received more money per week on piecework than
Chapman had been paid as a salary but he had to hire and pay a helper. Chapman, at the
time of his release, told Firpi that he would be available whenever needed. He reiterated
that be desired to return to work for the Respondent when he signed the application for
reinstatement which the Respondent received on September. 7. Nevertheless he was never
offered reinstatement under the new pay arrangement or otherwise.
LA CASA OLDSMOBILE
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
985 '
The activities of the Respondent set forth in Section III, above, occurring
in connection with the operations of Respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and Territories, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent has engaged in certain unfair labor
practices, it will be recommended that he cease and desist therefrom, and take
certain affirmative action which it is found will effectuate the policies of the
Act.
It has been found that the Respondent discriminated in regard to the hire
and tenure of employment of Victor Chapman, by refusing on or about October
1, 1948, to reinstate him to his former position. It will therefore be recommended
that the Respondent offer Chapman immediate reinstatement to his former or
substantially equivalent position15 without prejudice to his seniority or other
rights and privileges, and make him whole for any loss of pay he may have
suffered by reason of the discrimination by payment to him of a sum of money
equal to that which lie normally would have earned as wages from the date of
such discrimination to the date of the offer of reinstatement, less his net earnings
during said period.
It having been found that the Respondent engaged in certain acts of inter-
ference, restraint, and coercion in addition to the discrimination against Victor
Chapman, and in order to make effective the interdependent guarantees of
Section 7 and prevent the recurrence of any unfair labor practices, it will be
also recommended that the Respondent be ordered to cease and desist from
interfering with, restraining, or coercing his employees in any other manner in -
the exercise of the rights granted them by the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following :
CONCLUSIONS OF LAW
1. Confederacion General de Trabajadores de Puerto Rico (Autentica), is a
labor organization within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Victor
Chapman, thereby discouraging membership in Confederacion General de
Trabajadores de Puerto Rico (Autentica), the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (3)
of the Act.
3. By interfering with, restraining, and coercing his employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged
and, is engaging in unfair labor practices within the meaning of Section 8 (a)
(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.
11 In accordance with the Board's consistent interpretation of the term, the expression
"former or substantially equivalent position" is intended to mean "former position wherever
possible , but if such position is no longer in existence , then to a substantially equivalent
position ." See Chase National Bank of the City of New York, etc., 65 NLRB 827.
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. The Respondent has not discriminated as to hire and tenure of employment
of Juan Martinez, Jose Berrios Cintron, Pedro Rosario, Bonifacio Roman, and
Alonso Mestay.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, I recommend that the Respondent, Miguel Firpi,
doing business as La Casa Oldsmobile, San Juan, Puerto Rico, his agents,
successors , and assigns , shall:
1. Cease and desist from :
(a) Discouraging membership in the Confederacion General de Trabajadores
de Puerto Rico (Autentica), or any other labor organization of his employees,
by discriminating in regard to their hire or tenure of employment or any term
or condition of employment ;
(b) In any other manner interfering With, restraining, or coercing his em-
ployees in the exercise of the right of self-organization, to form labor organiza-
tions, to join or assist Confederacion General de Trabajadores de Puerto Rico
(Autentica), or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or protection, and
to refrain from any or all such activities except to the extent that such right may
be affected by an agreement requiring membership in a labor organization as a
condition of employment as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which I. find will effectuate the
policies of the Act :
(a) Offer to Victor Chapman immediate and full reinstatement to his former
or substantially equivalent position without prejudice to his seniority and other
rights and privileges, and make him whole for any loss of pay he may have
.suffered by reason of the Respondent's discrimination against him by payment
to him - of a sum of money equal to an amount determined in the manner set
forth in the section above entitled "The remedy" ;
(b) Post immediately in conspicuous places at his shop in San Juan, Puerto
Rico, copies of the notice attached hereto marked Appendix. Copies of said
notice, to be furnished by the Regional Director for the Fifth Region, shall,
after being duly signed by the Respondent or his duly authorized representa-
tive, be posted by the Respondent immediately upon receipt thereof and main-
tained by him for sixty (60) consecutive days thereafter in conspicuous places,
including all places where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material ;
(c) Notify the Regional Director for the Fifth Region in writing within
twenty (20) days from the date of the receipt of this Intermediate Report
what steps the Respondent has taken to comply herewith.
It is recommended that unless on or before twenty (20) days from the receipt
of this Intermediate Report the Respondent notify said Regional Director in
writing that he will comply with the above recommendations, the National Labor
Relations Board issue an order requiring him to take such action.
It is further recommended that the complaint be dismissed insofar as it alleges
discrimination as to the hire and tenure of employment of Juan Martinez, Jose
Berrios Cintron, Pedro Rosario, Bonifacio Roman, and Alonso Mestay.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board, any party may, within twenty (20) days from the date
LA CA SA OLDSMOBILE 987
of service of the order transferring the case to the Board, pursuant to Section
203.45 of said Rules and Regulations, file with the Board, Washington 25, D. C.,
an original and six copies of a statement in writing setting forth such exceptions
to the Intermediate Report and Recommended Order 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 six copies of a brief in support
thereof; and any party may, within the same period, file an original and six
copies of a brief in support of the Intermediate Report and Recommended
Order. Immediately upon the filing of such statement of exceptions and/or
briefs, the party filing the same shall serve a copy thereof upon each of the
other parties. Statements of exceptions and briefs shall designate by precise
citation the portions of the record relied upon and shall be legibly printed or
mimeographed, and if mimeographed shall be double spaced. Proof of service
on the other parties of all papers filed with the Board shall be promptly made
as required by Section 203.85. As further provided in said Section 203.46, 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 service of the order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the afore-
said Rules and Regulations, the findings, conclusions, recommendations, and
recommended order herein contained shall, as provided in Section 203.48 of said
Rules and Regulations, be adopted by the Board and become its findings, con-
clusions, and order, and all objections thereto shall be deemed waived for all
purposes.
Dated at Washington, D. C. this 24th day of January 1950.
J. J. FITZPATRICK,
Trial Examiner.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, I hereby notify my employees that :
I WILL NOT discourage membership in CONFEDERACION GENERAL DE TRABAJA-
DORES DE PUERTO RICO (AUTENTICA) or any other labor organization of my
employees, by discriminating in regard to their hire and tenure of employ-
ment or any term or condition of employment.
I WILL offer to Victor Chapman immediate and full reinstatement to his
former or substantially equivalent position without prejudice to any seniority
or other rights or privileges previously enjoyed by him and make him
whole for any loss of pay suffered as a result of the discrimination against
him.
I WILL NOT in any manner interfere with, restrain, or coerce my em-
ployees in the exercise of the right to self-organization to form labor organ-
izations, to join or assist CONFEDERACION GENERAL DE TRABAJADORES DE PUERTO
Rico (AUTENTICA), or any other labor organization, to bargain collectively
through representatives of their own choosing and to engage in other con-
certed activities for the purposes of collective bargaining or other mutual
aid or protection, or to refrain from any or all such activities except to the
extent that such right may be affected by an agreement requiring membership
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in a labor organization as a condition of employment as authorized in Sec-
tion 8 ( a) (3) of the Act.
MIGuEL FIBPI , D/B/A LA CASA OLDSMOBILE,
Employer.
By-------------------------------------------
Dated------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof , and must
not be altered , defaced , or covered by any other material.