Lubank Co.Download PDFNational Labor Relations Board - Board DecisionsApr 3, 1969175 N.L.R.B. 213 (N.L.R.B. 1969) Copy Citation LUBANK CO. Lubank Co., Marl Corporation ; Hospital Inc., De Diego San, Inc., Rio Lum , Inc., Lums Borin, Inc., Bayalum , Inc., Cagualum Corporation , and Lums Corporation De Ponce and Union De Trabajadores De La Industria Gastronomica De Puerto Rico, Local 610 , Hotel & Restaurant Employees and Bartenders International Union , AFL-CIO. Case 24-CA-2454 April 3, 1969 DECISION AND ORDER BY MEMBERS BROWN, JENKINS, AND ZAGORIA On October 17, 1968, Trial Examiner Sidney Lindner issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent 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 made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and orders that the Respondent, Lubank Co., Marl Corporation; Hospital Inc., De Diego San, Inc , Rio Lum, Inc., Lums Borin, Inc., Bayalum, Inc., Cagualum Corporation; and Lums Corporation De Ponce, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. We find that the complaint issued on the basis of the amended charge is not barred by Section 10(b) of the Act because the original charge filed on October 18, 1967, alleged that the Respondent interfered with its employers' Section 7 rights "by, among other [conduct], engaging in the following " and hence was sufficiently broad to encompass the acts referred to in the amended charge and complaint Fremont Hotel, Inc , 162 NLRB 820 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE 213 SIDNEY LINDNER, Trial Examiner The complaint alleges that Respondent, Lubank Co.,' has engaged in, and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(l) and Sections 2(6) and (7) of the National Labor Relations Act, as amended, 29 U S C. Sec 151, et seq , herein called the Act. With respect to the unfair labor practices, the complaint asserts but the Respondent's answer denies that it committed unfair labor practices within the meaning of Section 8(a)(1) of the Act between July 31 and August 6, 1967,' by (1) Respondent's Borinquen Towers Restaurant Manager Adolpho Aguila's interrogation of employees about their union activities; warning the employees they would suffer if they selected the Union as their bargaining representative; promising benefits to the employees to induce them to refrain from union activities; (2) Respondent's central office manager, Rose Capella Alonso's interrogation of Respondent's employees on August 23 and September 2, as to whether they had signed an authorization card for the Union and the reason they wanted the Union to represent them, her request of the employees to sign written statements that they did not want any union to represent them; and (3) the systematic interrogation of Respondent's employees about their and other employees' union activities by Respondent attorney, Rafael Cuevas Kuinlan. Pursuant to notice a hearing was held before me at Hato Rey, Puerto Rico, on June 10, 11 and 12, 1968 The General Counsel and Respondent and the Union appeared by counsel and were afforded full opportunity to be heard, to examine and cross-examine witnesses and to introduce evidence upon the issues in the case Since the hearing a brief has been received from the Respondent and has been duly considered Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT The parties stipulated that Respondent's gross income from the operation of its restaurants was in excess of $500,000 during 1967 and during the same period, Respondent purchased and had shipped to its restaurants located in Puerto Rico from points located outside of Puerto Rico, food stuffs, beverages and other merchandise which were valued in excess of $50,000. I find that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and is within the jurisdiction of the Board. II. THE LABOR ORGANIZATION INVOLVED Union De Trabajadores De La Industna Gastronomica De Puerto Rico, Local 610, Hotel & Restaurant Employees and Bartenders International Union , AFL-CIO (herein called the Union ), is a labor organization within the meaning of the Act. 'The parties stipulated at the hearing that Lubank Co , and its affiliated corporations are one employer of the employees of the various affiliated corporations owned and operated by Lubank Co 'All dates herein are in 1967 unless otherwise indicated 175 NLRB No. 36 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. Background and Setting; Ruling on Motion to Dismiss The Union commenced an organizing drive among Respondent's employees in July 1967. After a number of Respondent's employees signed union authorization cards, a Petition for Certification was filed with the Regional Office on August 11. The Union by said petition, sought to represent only the employees of Respondent's Miramar store. By letter dated August 17, the Union demanded that Respondent recognize it as collective-bargaining representative for all Respondent's employees. On August 24, the Union filed a second petition seeking certification and representation rights for all Respondent's employees in Puerto Rico. A notice of hearing regarding the petitions was issued setting the hearing date for September 7. During the first week of August and on August 23, September 2 and 4, meetings and interviews with the employees were conducted by Respondent's managerial personnel and its attorney. The conduct of Respondent's managerial personnel and its attorney at such meetings and interviews form the substance of the unfair labor practices alleged in the complaint. No evidence was adduced at the hearing to support the allegation in part V, paragraph 2, of the complaint and upon the close of the General Counsel's case, Respondent's Motion to Dismiss this allegation of the complaint was granted. At the outset of the hearing Respondent moved to dismiss the allegations of the complaint embodied in part V., paragraph I and such motion was denied. In his brief Respondent's counsel renewed the motion contending that (1) the conduct alleged in part V, paragraph 1, took place between July 31 and August 6; (2) the charge filed on October 18, refers solely to conduct occurring since September 1; (3) the amended charge of February 9, 1968, refers to unlawful conduct by the employer occurring since July; (4) the amended charge is a new cause of action alleging acts different and independent from those alleged in the original charge and therefore the amended charge must be within the Section 10(b) period; (5) since the amended charge was not filed within the 6-month period set forth in Section 10(b) of the Act, the allegations in the charge are barred by the Statute of Limitations. I find these contentions without merit. It is well established that the Board may base an unfair labor practice finding on any conduct which occurred within the 6-month period prior to the filing of a charge if the complaint, as here, issuing thereon alleges the conduct to be an unfair labor practice even though the charge itself does not specify such conduct as a violation of the Act.' B. Interference, Restraint , and Coercion With the inception of the Union ' s organizational activities in July , the Respondent lost little or no time thereafter in interrogating its employees regarding union activities and membership. Victoria Quiles, a witness in Respondent ' s Miramar restaurant from February to December , testified that shortly after she signed a union card in August , Adolfo Aguila, store manager of Respondent ' s Borinquen Towers restaurant ' called several employees together in the kitchen at the Miramar restaurant where he spoke to 'Stainless Steel Products, Incorporated, 157 NLRB 232, 234; Board v. Font Milling Co., 360 U.S. 301, 307-308. them. Aguila inquired why the employees wanted the Union and mentioned Respondent's medical insurance plan. Quiles remarked that she did not know anything about an insurance plan and as a matter of fact had never heard of it before the Union commenced organizing Respondent's employees. Esperanza Perez, a witness in Respondent's employ since December 1966 at the Miramar restaurant, testified that Aguila spoke to her in the presence of employee Altragacia Mena and then Monroe Frascona, assistant to the general manager, joined them. The conversation took place on the restaurant terrace. Aguila inquired why Perez and other employees joined the Union. Aguila asked Perez if the employees "were not in agreement" and "satisfied" with management. He then mentioned the medical insurance plan which Perez was not aware of until the Union commenced its organizational campaign, commenting that "everything was going to be straightened out." Aguila closed the conversation with a derogatory remark about the activity of unions in Cuba. Aguila admitted having conversations with groups of employees in the Miramar restaurant from July 31 to August 6. He testified he accompanied Frascona, the newly appointed assistant general manager, to the restaurant to introduce him to the various managers and employees and to listen to any employee complaints. Among other complaints, according to Aguila, was one voiced by an unidentified employee to the effect that Lums did not have a medical plan comparable to the one the Union claimed it had. Aguila testified that he explained to the employees that Respondent had a medical plan since it started operations in Puerto Rice but many employees did not join the plan because they had to contribute part of the monthly dues. Aguila called the employees' attention to the fact that many of their number in the Miramar restaurant were benefiting from the medical plan. He denied any personal conversations with employees Quiles or Perez, stating he engaged only in group conversations. He categorically denied inquiring of Quiles and Perez why each had signed a union card. He testified also that "the first time [I] knew about the Union in the Company" was on the occasion when he went with Frascona to the Miramar restaurant. With respect to the medical insurance plan, Aguila testified that it was Respondent's policy to inform newly hired employees about the plan even though an employee did not become eligible to participate until he had been employed for 3 months. In its further effort to show that Respondent was not promising employees benefits, the Respondent introduced evidence from its books and records containing entries of medical insurance payments by employees. At the Miramar restaurant for the first quarter of 1967, of 29 employees on the payroll, there were deductions for medical plan insurance against four employees. Additionally, the payroll records for the Borinquen Towers restaurant show deductions for medical plan insurance for five employees out of a total of 26 during the last quarter of 1966, and for the first quarter of 1967 of a total of 27 employees, one employee had deductions for medical plan insurance. Furthermore the payroll records for the Miramar restaurant do not show Steve London , general manager and field supervisor for the Lubank Co., and its affiliated corporations in Puerto Rico, testified that Aguila as store manager is the working head of the particular corporation, Lums Borin Inc., and in such capacity has authority to hire and discharge employees. I find Aguila to be a supervisor within the meaning of the Act, in spite of the denial in Respondent 's answer. LUBANK CO. any deductions for medical plan insurance for employees Quiles or Perez. Other than Aguila's generalized testimony that it was Respondent's policy to inform newly hired employees of its medical insurance plan, and it should be noted in this regard that Aguila hired only employees at the Borinquen Towers restaurant and had no direct knowledge of what was told newly hired employees in the other Lums restaurants in Puerto Rico, no evidence was adduced by Respondent to contradict the testimony of Quiles and Perez that they did not know anything of the medical insurance plan until the Union commenced its organization drive.' The sheer lack of numbers of employees participating in the plan is an indication of the widespread unawareness of its existence. Moreover, it is clear from the record and I find that before the Union started to organize Lums' employees, notification affording opportunity to participate in Respondent's medical insurance plan was a mere happenstance. I further find based on the testimony of Quiles and Perez, which I credit, that they did not know of the medical insurance plan's existence until after the Union started to organize Respondent's employees and after Aguila was told during the course of his interviews with the Miramar restaurant employees that one of the reasons the employees turned to the Union was the lack of medical insurance. I find also that Aguila's promises to employees Quiles and Perez of the benefits of the medical insurance plan and that "everything was going to be straightened out" in violation of Section 8(a)(1) of the Act. I have heretofore not credited Aguila's testimony regarding Respondent's medical insurance plan. During the course of the hearing I had the distinct feeling that Aguila did not disclose the true facts when he denied any personal conversations with employees Quiles and Perez and that he was concerned primarily with giving answers which were favorable to his employer. It is inconceivable to me that a "trusted" managerial employee like Aguila who was called on by Respondent to contact the employees on various occasions was unaware of the Union's organizational campaign among Respondent's employees until he went around to the different restaurants to introduce Frascona. I do not credit Aguila's testimony. I find based on the testimony of Quiles and Perez, which I credit, that Aguila engaged in the conversations as testified to by them. Accordingly, I conclude and find that Respondent violated Section 8(a)(1) of the Act by Aguila's systematic interrogation of Respondent's employees as to the reasons they had joined the Union and why they wanted a union to represent them C. Interrogation of Respondent's Employees by Attorney Rafael Cuevas Cuevas, associate attorney in the firm of Baker and Woods interviewed employees on September 2 and 4. The complaint alleges that the systematic interrogation of Respondent's employees and the use by Cuevas of intensive and comprehensive written and oral methods of 'Respondent adduced testimony from employee Juana Francisca Mepas, who worked at the Bonnquen Towers restaurant since January 1967, that "they had spoken of this medical plan since I arrived there, but I have not joined it because I had to pay into it " She did not state who in management spoke to her about the plan or any other details I do not credit her testimony 215 questioning which included questions designed to ascertain the identification of the employees of the Respondent who are engaged in the campaign to organize the employees and the identity of the employees who had signed authorization cards for the Union and the person or persons who were soliciting signatures on said cards for the Union, violated the Act. According to Cuevas, as a result of conversations with Respondent's managerial personnel which included among other items a letter from the Union dated August 17, requesting recognition and because the Union had filed a Petition for Certification of representatives, Baker and Woods, Esqs., on behalf of the Respondent, decided to interview the employees. A 7-page questionnaire consisting of some 42 questions was prepared by the office and Cuevas was given the assignment to conduct interviews with employees in all of the Respondent's restaurants in Puerto Rico. Cuevas admittedly asked the questions in the order as they appear on the questionnaire.' He stated that with respect to some employees it was necessary to ask an additional question which was not on the questionnaire in order to clear up some matter and in other instances because of the answers he received he did not have to ask all of the questions. In its decision in Johnnies Poultry Co , 146 NLRB 770, 775, the Board specified that there are two types of legitimate interrogation of employees by an employer, as follows: (1) "The verification of a union's claimed majority status to determine whether recognition should be extended; and (2) the investigation of facts concerning issues raised in a complaint where such interrogation is necessary in preparing the employer's defense for trial in the case." (Emphasis supplied.) In the instant case Respondent's counsel's interrogations of its employees was conducted before any charge was filed by the Union with the Board.' Although Cuevas testified that one of the "purposes" of the interviews with Respondent's employees was to ascertain if the Union had "legitimate majority support," to enable Respondent to answer the Union's August 17 letter, it is clear from the record and I find that this was not communicated to the employees. While it is true that Cuevas did tell the interviewed employees that no reprisals would be taken against them, "the questioning must occur in a context free from employer hostility to union organization and must not be itself coercive in nature; and the questions must not exceed the necessities of the legitimate purpose by prying into other union matters, eliciting information concerning an employee's subjective state of mind, or otherwise interfering with the statutory rights of employees." Cuevas conducted his interviews in a systematic manner, by calling one employee at a time into an area separate and apart from the regular working area. When he completed one interview, he requested such employee to send in the next employee! At the outset of each interview Cuevas asked the employees the following questions: "Approximately when did the Union Gastronomica contact you so that you became a member of the Union?" "Did you sign the union card?" "Who 'See G C Exits 2(a) and 2(b) 'As heretofore noted the interrogations by Cuevas took place on September 2 and 4 , the original charge was filed on October 18 This finding is based on the testimony of employees Llort, Quiles, and Perez, which I credit 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gave you the union card for your signature" "What other employees signed union cards?"' I find that by asking the questions in the form used as above, the Respondent, acting through its attorney, Cuevas, violated Section 8(a)(1) of the Act, for as the Board stated in Sullivan Surplus Sales, Inc , 152 NLRB 132, 134, "it had as the only answer the identification of union supporters and on their face intruded into employee activities which were irrelevant to any defense." See also Automotive Warehouse Distributors, Inc, 171 NLRB No 101.'° IV THE EFFECT UPON COMMERCE OF THE UNFAIR LABOR PRACTICES The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and the Commonwealth of Puerto Rico and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V THE REMEDY It having been found that the Respondent has engaged in certain unfair labor practices, I recommend that it cease and desist therefrom and that it take certain affirmative action which is necessary to effectuate the policies of the Act. Upon the basis of the above findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1 Lubank Co., Marl Corporation; Hospital Inc , De Diego San, Inc , Rio Lum, Inc., Lums Born, Inc., Bayalum, Inc , Cagualum Corporation; and Lums Corporation De Ponce is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2 Union De Trabajadores De La Industria Gastronomica De Puerto Rico, Local 610, Hotal & Restaurant Employees and Bartenders International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining , and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act, Respondent has engaged in 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 within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this case, it is recommended that Respondent, its officers, agents, including its attorney, successors, and assigns shall. 'The last question was not on the questionnaire I find based on the credited testimony of Quiles and Perez that it was asked "I am fully aware that Quiles and Perez under cross -examination by Respondent 's counsel testified that Managers Jiminez and Lopez told them and other employees in their presence that those employees who signed union cards would be fired However , I will not base any findings on these threats because they were not alleged in the complaint 1. Cease and desist from (a) The systematic interrogation of its employees with respect to their union membership (b) Promising benefits to employees to induce them to give up the idea of being represented by a union. (c) Individually and separately interviewing and interrogating its employees by counsel or otherwise with a view to ascertaining those who had signed union authorization cards and with a further view to ascertaining the persons who are soliciting employees for their signatures on union authorization cards. (d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization to form, loin or assist any 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 or to refrain from any or all such activities. 2 Take the following affirmative action which will effectuate the policies of the Act (a) Post in conspicuous places in all restaurants owned and operated by the Respondent and its affiliated corporations in the Commonwealth of Puerto Rico, including all places where notices to employees are customarily posted, copies of the attached notice marked "Appendix A."" Copies of said notice, on forms to be provided by the Regional Director for Region 24, shall, after being duly signed by the authorized representative of the Respondent, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 24, in writing, within 20 days from the receipt of this Trial Examiner's Decision, what steps the Respondent has taken to comply herewith.': "In the event that this Recommended Order be adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board ' s Order be enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order , what steps the Respondent has taken to comply herewith " APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that. LUBANK CO. 217 WE WILL NOT systematically interrogate our employees with respect to their union membership.WE E WILL NOT promise benefits to employees to induce them to give up the idea of being represented by a union. WE WILL NOT individually and separately interview and interrogate our employees by our attorney or otherwise with a view to finding out which employees have signed union authorization cards and with the further view of finding out the persons who solicited employees' signatures on union authorization cards. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization to form, join, or assist the Union 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 or to refrain from any and all such activity. All our employees are free to become or remain, or refrain from becoming or remaining, members of the Union or any other labor organization. LUBANK CO., MARL CORPORATION; HOSPITAL INC., DE DIEGO SAN, INC., RIO LUM, INC., LUMS BORIN, INC., BAYALUM, INC., CAGUALUM CORPORATION; AND LUMS CORPORATION DE PONCE (Employer) Dated By (Representative) (Title) 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Seventh Floor, Pan Am Building, 255 Ponce de Leon Avenue, Hato Rey, Puerto Rico 00919, Telephone 765-1125. Copy with citationCopy as parenthetical citation