Lubank Co.

National Labor Relations Board - Board Decisions

Apr 3, 1969

175 N.L.R.B. 213 (N.L.R.B. 1969)

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.