Maurice Embroidery Works, Inc.

National Labor Relations Board - Board Decisions

Mar 29, 1955

111 N.L.R.B. 1143 (N.L.R.B. 1955)

MAURICE EMBROIDERY WORKS, INC. 1143
2. The labor organization named below claims to represent em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer, within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. The Petitioner seeks a unit comprising all the production em-
ployees employed in the Employer's poultry processing operation, in-
cluding the truckdrivers and the porter, but excluding the retail store
employees. The Employer contends that no unit of its employees is
appropriate and that, in any event, the truckdrivers should be
excluded.
The Employer's establishment consists of a retail store where meat,
fish, and poultry are sold and, to the rear of the store, an enclosed
area in which chickens are slaughtered and prepared for delivery to
various retail stores and restaurants. In the retail store the Employer
employs meatcutters and salesmen.
The employees sought are separately located and supervised, and do
not interchange with the retail store employees. Although the truck-
drivers make some deliveries for the retail store, they spend the bulk
of their time in assembling, packing, and delivering orders for the
processing plant. In view of the foregoing, we find that the employees
sought are a functionally distinct and homegeneous group.2 We find,
therefore, that the following employees of the Employer constitute an
appropriate unit for collective bargaining within the meaning of Sec-
tion 9 (b) of the Act
All production and cleaning employees, including the truckdrivers
and the porter, but excluding office employees, retail store employees,
and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
2 See Theriot Super Food Markets, Inc., 101 NLRB 259.
MAURICE EMBROIDERY WORKS, INC. and UNION GENERAL DE TRABAJA-
DORES DE LA INDUSTRIA DE LA AGUJA, INDEPENDIENTE. Cases Nos.
24-CA-491 and 24-CA-504. March 29,1955
Decision and Order
On July 29, 1954, Trial Examiner Eugene E. Dixon issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that the Respondent cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. The Trial Examiner also
111 NLRB No. 171.
1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
found that the Respondent had not engaged in certain other unfair
labor practices and recommended that the complaint be dismissed
in these respects. Thereafter, the Respondent filed exceptions to the
Intermediate Report.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions, and the entire record in this case and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner with the following modifications :
1. The Trial Examiner found, and we agree, that the Respondent
violated Section 8 (a) (5) and (1) of the Act by refusing to bargain
with the Union on or about August 21 and August 30, 1953, and that
the current strike thereby became an unfair labor practice strike. The
Trial Examiner further found that, on and after September 8, 1953,
the Respondent violated Section 8 (a) (3) and (1) of the Act by
failing to reinstate the unfair labor practice strikers who had uncon-
ditionally requested reinstatement personally or through the Union.'
We agree with this finding except as to Marina Cintron Rivera, Mar-
garita Torres Torres, Angelica Valentin Pratts, and Carmen Rod-
riguez Perez. The Trial Examiner found that, although these four
strikers had engaged in picket line violence for which they might have
been legally discharged or refused reinstatement by the Respondents,
the Respondent had condoned or waived their picket line misconduct.
We do not agree.
The record shows that during the strike the four strikers involved
herein, as well as other strikers not named in the complaint, engaged
in violence on the picket line. As a result of this violence, three of
the strikers involved herein were arrested and convicted of assault and
the Respondent filed an unfair labor practice charge against the
Union. Thereafter, by letter dated September 2, 1953, the Union in-
dicated that it was abandoning the strike and notified the Respondent
that all of the strikers were ready to start working on September 8,
1953. The Trial Examiner found and we agree that this letter con-
stituted an unconditional request for reinstatement on behalf of all the
strikers. A day or so after the strike terminated, a group of about 15
or 16 strikers, including the 4 strikers herein involved, applied en
masse for reinstatement. Five or six were rehired at that time but
none of the four strikers who had engaged in picket line misconduct
were then rehired. Respondent's President Ades and Plant Manager
Antonia listed the names of the applicants, who were advised that they
should reapply or that they would be recalled. The plant manager
I All of the strikers are listed on the Appendix attached to the Intermediate Report,
except Marina Cintron Rivera , Margarita Torres Torres , and Angelica Valentin Pratts,
whom the Trial Examiner inadvertently omitted.
MAURICE EMBROIDERY WORKS, INC. 1145
testified that after the strike was over, she was instructed to rehire all
strikers applying for employment "with the exception of some who
had engaged in violence during the strike." President Ades corrobo-
rated this testimony and testified that he left instructions that the
four strikers in question, among others, were not to be rehired because
of their violence on the picket line. This evidence is not discredited
by the Trial Examiner. On September 9, the Board's Regional Office
settled the unfair labor practice charge against the Union by requiring
it to post a notice. The Respondent however, never agreed to the set-
tlement and by letter dated October 13, 1953, Respondent's counsel
advised the Regional Office that the Respondent did not intend to
rehire the 4 strikers involved herein, as well as 2 others, because they
had engaged in violence during the strike.
To support his finding that the Respondent was willing to condone
the picket line violence of these strikers, the Trial Examiner relied
upon the Respondent's knowledge of the misconduct and its failure
to take any position or issue any orders against hiring these employees
prior to the time when they, with others, applied for reinstatement.
We do not believe that the General Counsel has thereby established by
a preponderance of the evidence that, at the time of their applications,
the Respondent intended to reinstate the four strikers despite their
misconduct. The failure of the Respondent to take a definite posi-
tion against hiring these specific employees does not have controlling
significance because these strikers were a part of a group of mass
applicants. In this connection, although the Respondent rehired 5 or
6 at that time, it is significant that the Respondent did not rehire any
of the 4 in question. Moreover, there is no evidence to show that it
ever employed any striker who had engaged in picket line violence.
This is entirely consistent not only with the Respondent's instructions
to its plant manager not to reemploy strikers guilty of misconduct and
its reiteration of that position to the Regional Office, but also with
its refusal to sign the settlement agreement.
In view of the foregoing, and upon the entire record, we are not
convinced that it has been established by the preponderance of the
evidence that the Respondent condoned the picket line misconduct of
Marina Cintron Rivera, Margarita Torres Torres, Angelica Valentin
Pratts, and Carmen Rodriguez Perez.' Absent such condonation, the
Respondent was under no obligation to reinstate these strikers. Ac-
cordingly, we shall dismiss the complaint as to the allegations that
Respondent discriminated with respect to the hire or tenure of employ-
ment of Marina Cintron Rivera, Margarita Torres Torres, Angelica
Valentin Pratts, and Carmen Rodriguez Perez.
2 See Merck & Company, Inc , 110 NLRB 67 ; see also N. L. R. B v . Dorsey Trailers, Inc,
179 F 2d 589, 592 (C A 5) ; and N. L R B v Marshall Car Wheel and Foundry Co. of
Marshall, Texas, Inc , 218 F. 2d 409 (C A. 5)
1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Order
Upon the entire record in this 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, Maurice Em-
broidery Works, Inc., Mayaguez, Puerto Rico, its officers, agents, suc-
cessors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Union General de Trabajadores
De La Industria De La Aguja, Independiente, or any other labor
organization of its employees, by discriminating in regard to hire or
tenure of employment.
(b) Refusing to bargain collectively with Union General de
Trabajadores De La Industria De La Aguja, Independiente, as the
exclusive bargaining representative of all production and maintenance
employees of the Respondent at its needlework factory in Mayaguez,
Puerto Rico, excluding executive, administrative, office clerical and
professional personnel, guards, watchmen, and supervisors as defined
in the Act, with respect to rates of pay, wages, hours of employment,
or other conditions of employment.
(c) Threatening employees with loss of employment because of
their activities in behalf of Union General de Trabajadores De La
Industria De La Aguja, Independiente, or any other labor
organization.
(d) Offering inducements or gifts to employees to abstain from
activities in behalf of Union General de Trabaj adores De La Industria
De La Aguja, Independiente, or any other labor organization.
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist Union General de Trabajadores De La Industria
De La Aguja, Independiente, or any other labor organization, to bar-
gain collectively through representatives of their own choosing and
to engage in concerted activities for the purpose of collective bargain-
ing or other mutual aid and protection, or to refrain from engaging in
such activities, except to the extent that such rights may be affected
by an agreement requiring membership in a labor organization as
authorized in Section 8 (a) (3) of the Act, as guaranteed in Section
7 thereof.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to the employees named in the Appendix attached to the
Intermediate Report, except Carmen Rodriguez Perez, immediate and
full reinstatement to their form6r or substantially equivalent posi-
tions without prejudice to their seniority and other rights and privi-
MAURICE EMBROIDERY WORKS, INC. 1147
leges, dismissing if necessary, any person hired by Respondent on or
after August 21, 1953.
(b) Make whole the said employees for any loss of pay they may
have suffered by reason of Respondent's refusal to reinstate them in
the manner set forth in the section of the Intermediate Report, entitled
"The Remedy."
(c) Upon request, bargain collectively with Union General de
Trabajadores De La Industria De La Aguja, Independiente, as the
exclusive representative of all employees in the above-described appro-
priate unit and if an understanding is reached, embody such under-
standing in a signed agreement.
(d) Upon request, make available to the Board, or its agents, for
examination and copying, all payroll records, social-security payment
records, timecards, personnel records and reports, and all other records
necessary to analyze the amounts of back pay due and the rights of
employment under the terms of this Order.
(e) Post at its plant in Mayaguez, Puerto Rico, copies of the said
notice attached to the Intermediate Report and 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 an authorized
representative for the Respondent, be posted by Respondent immedi-
ately upon receipt thereof and maintained by it for a period of sixty
(60) consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said notices are not
altered, defaced, or covered by other material.
(f) Notify the Regional Director for the Twenty-fourth Region,
in writing, within ten (10) days from the date of this Order what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the Respondent has violated Section 8 (a) (1) by denying the Union
access to company premises, compelling employees to listen to speeches,
and engaging in surveillance; and that the Respondent has violated
Section 8 (a) (3) by discriminating with respect to the hire or tenure
of employment of Trinidad Medina, Angel L. Rivera, Irenia Rod-
riguez, Luz Celenia Torres, Marina Cintron Rivera, Margarita Torres
Torres, Angelica Valentin Pratts, and Carmen Rodriguez Perez, be,
and it hereby is, dismissed.
3 This notice is amended by substituting for the words "The Recommendations of a
Trial Examiner" the words "A Decision and Order " and by deleting from the list of em-
ployees named therein , "Carmen Rodriguez Perez." In the event that this Order is en-
forced by decree of a United States Court of Appeals , there shall be substituted for the
words "Pursuant to a Decision and Order " the words "Pursuant to a Decree of the United
States Court of Appeals, Enforcing an Order "
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
This proceeding, brought under Section 10 (b) of the National Labor Relations
Act, as amended (61 Stat. 136), was heard in Mayaguez, Puerto Rico, January 19
to 22 and July 8, 1954, pursuant to due notice. The complaint, as amended both
before and at the hearing, was issued December 17, 1953, by the General Counsel
of the National Labor Relations Board.' Based on charges duly filed and served,
the complaint alleged in substance that the Respondent had engaged in unfair labor
practices proscribed by Section 8 (a) (1) (3) and (5) of the Act by: (a) Promising
wage increases and offering bribes to employees to stop union activity; (b) compelling
employees to listen to speeches "urging, persuading, warning, and coercing" em-
ployees to refrain from union activities; (c) refusing union representatives reasonable
access to employees on company premises for collective bargaining and organizational
activities; (d) threats of reprisals and promises of benefit to employees regarding
their union activity; (e) refusing to bargain with an appropriate unit of the employees
from June 11, 1953, and (f) discharging and refusing to reinstate employees because
of their union activities?
Respondent filed no written answer but was permitted to interpose orally at the
hearing a general denial.
All parties were represented by counsel and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, to introduce relevant evidence, to
argue orally, and to file briefs and proposed findings of fact and conclusions of
law. A brief was filed by the General Counsel.
In my study of the record it became apparent that an essential factor in the case
had not been touched upon, namely, whether or not certain employees named in the
complaint as 8 (a) (3)'s had participated in a strike that had taken place at Respond-
ent's plant in August 1953. Accordingly, I wrote the parties on May 14, 1954, ask-
ing that a stipulation in the matter be entered into if possible and informing them
that if such a stipulation was not possible I would reopen the case for the purpose
of taking the necessary testimony. It appearing that no stipulation was forthcom-
ing, on June 4, 1954, I issued an order (made a part of the record together with
return receipt as Trial Examiner's Exhibits Nos. 1 and IA) reopening the record
and setting June 21 as the date for reconvening the hearing in Mayaguez, Puerto
Rico. On June 17, 1954, pursuant to an unopposed request of Respondent's counsel
for a continuance to July 21, 1954, I issued an order (also made part of the record
together with return receipt as Trial Examiner's Exhibits Nos. 2 and 2A) changing
the date of the hearing to July 8, 1954. Nothing more was heard from Respondent's
counsel, nor did he appear at the reconvened hearing.
In view of the lack of showing that Trinidad Medina, Angel L. Rivera, Irenia Rod-
riguez, and Luz Celenia Torres had participated in the strike, the General Counsel's
motion at the hearing that the complaint be dismissed as to them was granted.
i The General Counsel and his representative at the hearing are referred to herein as
the General Counsel and the National Labor Relations Board as the Board. Maurice
Embroidery Works, Inc, is referred to as the Respondent and Union General de Traba-
jadores De La Industria De La Aguja, Independiente, as the Union.
2 Named in the complaint were :
Alicea, Rosa J Ouslan, Rosa N.
Aquino, Rosa M Perez, Carmen Rodriguez
Aveillez, Virginia Rivera, Angel L.
Beauchamp, Carmen Rivera, Maria T
Canino, Berta Rodriguez, Irenia
Carlo, Baudilia Rodriguez, Lydia
Estremera. Carmen Sulzona, Maria A.
Ferrer, Matilde Torres, Clorinda
Figueroa, Rosa M Torres, Luz Celenia
Gonzalez, Tomasa Torres, Victoria
Matias, Maria L. Valentin, Herminia
Medina, Trinidad Valladares, Isabel
Morales, Julia Vega, Genara
Added by amendment at the hearing were :
Marina Cintron Rivera Angelica Valentin Pratts
\iargarita Torres Torres
MAURICE EMBROIDERY WORKS, INC. 1149
As requested by the General Counsel in a letter dated May 24, 1954, I take official
notice that Vincente Pales Matos "is listed by the Secretary of State's office (Depart-
mento De Estado) for Puerto Rico as Secretary of Maurice Embroidery Works,
Inc., with term ending February 18, 1954," as revealed in that Company 's annual
report filed 1952.
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 RESPONDENT
Maurice Embroidery Works, Inc., is a Puerto Rico corporation with its principal
office and place of business in Mayaguez , Puerto Rico , where it is engaged in the
manufacture of khaki and wool caps for the United States Army Quartermaster
Corps. During the 12 months preceeding the hearing Respondent produced more
than 1 million caps valued in excess of $50,000 which were shipped to the Quarter-
master Corps in the United States . Respondent admits, and I find, as has the Board
on two occasions ,3 that Respondent is engaged in commerce within the meaning of
Section 2 (6) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Union General de Trabajadores De La Industria De La Aguja, Independiente,
is a labor organization within the meaning of Section 2 ( 5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain
As the result of a Board -conducted election on January 22 , 1953,4 the Union was
certified by the Board on May 25 as the bargaining representative of all production
and maintenance employees of Respondent at its needlework factory in Mayaguez,
Puerto Rico, excluding executive , administrative , office clerical and professional
personnel, guards, watchmen, and supervisors as defined in the Act .5 The course of
events thereafter was as follows: 6
On June 11 the Union, by its president, Cuebas, sent Respondent a proposed con-
tract giving Respondent 10 days in which to study it and requesting that within that
period Respondent designate "the date, place, and hour" for the beginning of the
negotiation of the agreement . In its letter the Union expressed the desire to reach
an agreement without resort to a work stoppage.
On June 18 Respondent's attorney, Vincente Pales Matos, acknowledged receipt
of the proposed contract turned over to him by Maurice Ades, Respondent's presi-
dent, for joint study with Attorney Licari who was then in the United States and was
expected to be away about 3 weeks. In view of Licari's absence, Pales informed
the Union that "I shall communicate with the Union , in writing , at the beginning of
the second fortnight of July, to begin our negotiations and let you know our points
of view as to the clauses of the draft."
On June 22 Cuebas replied by letter to Pales' questioning Respondent 's need for
two lawyers , accusing Respondent of delaying tactics, protesting and not agreeing to
the "extension ," and warning Pales that it was up to him to "advise [the Company]
that this matter should be decided on a friendly basis between the workers and the
8 Maurice Embroidery Works, Inc., 107 NLRB 1451 ; also 24-RC-492, May 25, 1953
(not reported in printed volumes of Board Decisions and Orders
* All events herein occurred in 1953 unless otherwise noted.
There is no contention to the contrary and I find that at all times material herein the
Union represented Respondent 's employees for the purposes of collective bargaining in
the above appropriate unit
6 Most of these events are documented by correspondence received in evidence Besides
these documents there is the testimony of Antonio Cuebas Soto , the union president, and
Respondent 's attorney , Philip Licari . Licari's testimony on the whole is indefinite as to
dates and details , treating the circumstances in general terms Cuebas ' was mote de-
tailed and more closely corielated with the various exhibits received in evidence It was
stipulated that if called as witnesses the other members of the union negotiating com-
mittee would testify substantially the same as Cuebas Actually there is not a great
deal of direct conflict between Licari's testimony and Cuebas '. Where conflicts do arise,
unless otherwise indicated , I am inclined to credit Cuebas' version and the facts as found
in the text are based on this premise.
1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employer without our having to resort to other means to which we are entitled when
we receive a refusal to our demands for the workers."
On June 29 Pales wrote the Union stating that Licari had returned from the
United States and that the latter would be in Mayaguez on July 7 "which will be
a wonderful opportunity to discuss the terms of the agreement " Pales also gave
Licari's address in the event the Union wanted "to have an interview with him about
the agreement" before July 7.
On July 3 Cuebas replied to Pales requesting the hour and place of the July 7
meeting and informing him that it would have to take place either in the morning or
in the evening because of a hearing Cuebas had to attend at 2 p. m. on that day.7
No negotiating meeting took place in Mayaguez on July 7; "just a little conver-
sation" was held at the hearing room that day. Cuebas had been informed by Pales
that he was not going to participate in the negotiations which would be handled for
Respondent by Licari. In talking to Licari at the hearing room that afternoon,
Licari denied knowledge of Pales' letter concerning a negotiation meeting that day
and refused to negotiate pointing out that it was impossible to do so because of the
hearing then taking place. Licari did, however, offer to meet with the Union in
San Juan. Cuebas indicated the Union would consider that offer.
On July 10 Cuebas wrote Licari as "promised" in the July 7 conversation. Re-
viewing the correspondence with Pales and the events to date, Cuebas indicated the
Union had no objection to negotiating in San Juan provided the Company paid the
expenses incurred by the Union in so doing. Apparently having no serious expecta-
tion that the Company would offer to pay such expenses, Cuebas added that "The
Company has here in Mayaguez its office, its employer 8 and its officers, and it is here
that for several just reasons the agreement must be discussed and as was decided and
agreed by us. We give you 10 more days for you to decide with Mr. Ades when are
we going to start the negotiations of the agreement. This term ends on Monday,
July 20, 1953. We expect that around that date you will come to Mayaguez and
decide this matter of the agreement."
On July 15 Licari replied of Cuebas writing that he was sorry that he would not
be able to get to Mayaguez during July 9 and that this inability was his reason for
asking the Union to come to San Juan. He indicated he would be available in San
Juan on July 27 to "discuss the collective bargaining agreement presented by you, as
well as other counterproposals to same." He also indicated that it was "possible"
that he would be in Mayaguez August 5 or 6 when he would "be pleased to dis-
cuss . pending matters." He further stated that under no circumstances would
Respondent pay the Union's traveling expenses to San Juan.
On July 20 Cuebas wrote Licari accusing him and Pales of "evading and postpon-
ing the date of the discussion of the agreement which on June 11 we sent to the
Company." He informed Licari that the Union was "going to call a general assem-
bly of the workers in order to make the pertinent decisions necessary to protect the
rights of the workers and their demands." Further, in order to demonstrate the
Union's desire to reach an agreement "without . resort to other means" he gave
until July 20 as a deadline for discussions to begin, asking however for Licari's "de-
cision" by July 26.
On July 28 Cuebas wrote Respondent asserting in part that:
The workers have come to us to inform us that you have been holding assem-
blies after 5:30 to discuss matters concerning the work and to ask them who is
telling them not to produce the task which you require.
As legitimate representatives of the workers we ask you to allow us to be
present at those assemblies which you hold with the workers, as representative
of same, and we will gladly answer all the questions that you as employer wish to
ask.
The letter went on to say that if the practice continued the Union would have no
alternative but to file unfair labor practice charges with the Board. No reply was
received by the Union.
7 This hearing, it appears, was an unfair labor practice hearing involving the same
Union and Respondent as herein and the same attorney and union representatives namely
Licari and Cuebas, both of whom entered appearances. Maurice Embroidery Works,
supra
"In a similar letter of the same date from Cuebas to Respondent in Mayaguez refer-
ence was made to "employees" being located in Mayaguez
0In his testimony Licari offered no explanation as to why he was unable to enter into
negotiations at this time except that he "was engaged in some rather pressing matters."
MAURICE EMBROIDERY WORKS, INC. 1151
On July 29 the Union wrote to Respondent in Mayaguez stating that since no word
had been received that bargaining was going to take place the employees had de-
cided to give Respondent "until 10:00 a. in. next Wednesday, August 5, to begin the
negotiations of the agreement . If when this new term expires the negotiations of
the agreement have not begun, we shall proceed to declare a strike of the workers
until the collective bargaining agreement is discussed and executed." On the same
date, July 29, letters with similar information were sent to Licari and to Adalpho
Collazo, director of the office of conciliation and arbitration of the Puerto Rican
department of labor.
On July 30 Collazo wrote the Union stating that Conciliator Marcelino Flores
Rodriguez would be in Mayaguez August 3 "to assist the parties . . . in the nego-
tiations of the collective bargaining agreement." This meeting was not held but
Cuebas did talk to the conciliator at that time.lo
On August 4 the Union wrote Licari informing him that on Conciliator Flores'
assurance that Ades and Licari had given their "word of honor" promise that negoti-
ations would commence August 10, the Union was calling off the 10 a. m., August
5, strike. On the same day similar information was also sent directly by the Union
to Respondent in Mayaguez.
On August 6 Licari wrote Cuebas:
Enclosed you will find the counterprosal to the agreement submitted by the
workers of Maurice Embroidery Works, Inc.
Anticipating the pleasure of seeing you in Mayaguez on Monday, the 10th
I am
The counterproposals were essentially a flat rejection of the provisions sought in the
Union's proposed contract of June 11 and included a demand by Respondent for a
no-strike clause."
On August 10 (the day after the Union received the counterproposals), the prin-
cipals met for the first time-this was at the office of the chief of the department of
labor in Mayaguez. Present in addition to Conciliators Flores Rodriguez and Rod-
riguez Plata, were Licari and Ades for Respondent, Cuebas, Union Secretary Joaquin
Prosper, the union treasurer, Ramon Rivera Rosado, and four employees-Rienaldo
Rodriguez, Carmen Rodriguez, Francisco Yournet, and Isabel Valladares for the
Union.
At the outset Licari indicated he was not authorized to offer anything but the
counterproposals. The Union pointed out that the counterproposals offered noth-
ing that was not already in effect. Then after some conversation it was agreed that
the union proposals be read. Licari rejected everything but recognition of the Union,
a 10-minute rest period (which was currently in effect), use of a bulletin board,
and the furnishing of a water cooler. At this point the conciliators asked the union
committee to step outside to permit a private discussion with Licari and Ades. On
their return to the conference room Licari asked them for 15 days to consider "what
concessions he could make" and told them he would have to ask them to come to
San Juan. The Union asked Licari to submit his concessions to them in writing by
August 14 or 15 to which he agreed.
On August 15 a proposal involving wage schedules for various of Respondent's op-
erations presumably reflecting increases from 1 to 5 cents per operation were re-
ceived by the Union from Licari through Conciliator Flores.12 Written in pencil
by Conciliator Flores on one of the sheets of these schedules were the additional
concessions , stipulated to have been made through the conciliators by Respondent, of
a "Union shop six months probation, 6 days vacation and check off." 13
On August 17 at 2 p. m. the two conciliators, a union committee, and Licari met
in the latter's office in San Juan. According to Cuebas' testimony, he told Licari
that the Union had "come all the way from Mayaguez to San Juan to continue negoti-
ating the collective bargaining agreement in spite of the fact that the proposals that
10 No explanation appears in the evidence why the meeting did not take place.
"The counterproposals made no mention of the Union's proposal for a $50 Christmas
Bonus and for bulletin boards-which I do not interpret as amounting to acceptance by
Respondent. Apart from how silence could be interpreted, no concessions were made in
the document and specifically was no concession or proposal of any kind made therein re-
garding wage rates, probation, vacations, or check off.
Is It had been agreed that Licari would present all matters through the conciliators.
13 It does not appear when these concessions were made. In view of Licari's testimony
about his position on these matters (which I discuss below) it appears unlikely that they
were made before or at the August 17 meeting which took place at Licari's office in San
Juan.
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he had made through Conciliator Flores did not merit such a trip...:. Cuebas fur-
ther testified about this meeting as follows. Licari indicated that despite Ades' absence
Licari had authority to accept, discuss, and sign an agreement. The Union informed
Licari that it "would not accept the small concessions" Respondent was making and
asserted that while wage increases in gloves and working caps of 1 to 5 cents were
being offered, increases of 100 to 200 pieces were being required in the tasks so that
actually there was little if any increase in the proposed rates. Licari answered that
if they had not come to San Juan with the intention of accepting the counterproposals,
they could have saved the expense of the trip because Respondent was going to offer
nothing more and suggested that the meeting be called off. The Union asked him to
reconsider because it was not insisting on its original proposals and attempted to show
him wherein they had reduced their demands. Licari declined to listen, maintaining
(in conflict with his previous statement) that he had no authority "to accept or to
negotiate."
At this point the conciliators asked the union committee to leave the room to per-
mit a discussion with Licari alone. This done, the conciliators informed the Union
"that they had not been able to convince Mr. Licari to set down and negotiate" but
recommended that the committee "insist" that Licari listen to the Union's modifica-
tion of its original demands. Licari agreed to listen and the Union enumerated the
reductions in its demands-wages from 75 to 10 cents, vacations from 30 to 12 days,
sick leave from 30 to 12 days, Christmas bonus from $50 to $10. Licari answered
that "it was very pretty" but that he was unable to accept. He suggested that if the
Union would give him 2 or 3 months to study the revised proposals and consult
with the Company he would give them an answer. The Union countered by offering
until the following Thursday at noon for him to give them an answer whether he ac-
cepted their reductions or what concessions he could make. Suggesting that they
could leave, Licari contended that such conditions were "oppressive" and that he
would not negotiate under such pressure. The Union asked him to reconsider "be-
cause the workers were willing to go on strike if the Company would not decide to
negotiate in good faith " Licari answered, "Go ahead and call any strike you wish,
the company and I know already what we are going to do." On this note, according
to Cuebas, the meeting ended.
Licari's testimony about the August 17 meeting 14 in San Juan would indicate
that the parties "discussed" a union shop and checkoff, vacations, sick leave, and
wage increases. Licari had no objection to a union shop and checkoff provided that
the checkoff "should be outside the plant and should be made by the Union, in other
words, a certain type of checkoff where the Union collects and not the employer,
that the responsibility should be upon the Union to collect." As to vacations and
sick leave, Licari indicated that Respondent "might" give some such leave but added
that he "would rather discuss the other parts of the contract before . discussing
sick leave and vacation." As to wage rates Licari testified that he told Cuebas it
would be impossible to raise them to the extent requested by the Union but that
he would determine what amount could be given after he had "looked over the
prices that the employer had obtained in his contract." 15
Cuebas, reflecting an attitude that had compelled the conciliators to "restrain"
him earlier in the meeting, said he was going back to Mayaguez and call a strike.
Back in Mayaguez the following day, August 18, the Union wrote Respondent,
as follows:
MR. ADES BROS. August 18, 1953.
Maurice Embroidery Works Inc.
San Juan No. 9, Mayaguez, P. R.
DEAR Snt: Please be informed that your workers cannot go to work this
afternoon because they have been called to be present at a meeting today at
2 PM in order to inform them regarding the agreements reached at the meet-
ing held in Mr. Licari's office, attorney for the company, and with the right
to resolve your matters as employer.
14 Although the testimony does not specifically indicate that these comments were made
on August 17, it does appear from Licari's testimony that they reflect the position he took
in a meeting at San Juan. It appears therefore that it was at the August 17 meeting, or
in any event no earlier, that these matters were first discussed since the document upon
which Conciliator Flores made the notation of the concessions in question was not de-
livered to the Union until 2 days before the meeting took place.
No mention was made at this point in Licari's testimony about the proposed rate
increases submitted by Respondent to the Union through the conciliators 2 days before
It is possible, indeed likely (in view of the written wage proposals Licari had previously
submitted) that this comment was made by him in the August 10 meeting.
MAURICE EMBROIDERY WORKS, INC. 1153
If you allow them, the workers will return to work after the meeting is over
if it ends early.
If the workers accept Mr. Licari's offers to the Union's demands in the
agreement submitted on June 11th, we will let you know immediately, as well
as the determination taken.
Yours truly,
ANTONIO CUEBAS, President (U. G. T. I. A. 1.).
JOAQUIN PROSPER, Secretary.
After the meeting, the Union wrote another letter to Respondent, as follows:
MR. ADES BROS. August 18, 1953.
Maurice Embroidery Works Inc.
9 San Juan Street, Mayaguez, Puerto Rico
DEAR SIR: We notify you that after explaining to the workers of your shop
the offers you made through your lawyer, Licari, in answer to the demands
which the workers made in the Collective Bargaining Agreement which was
sent to you on June 11, the workers did not agree to accept them because same
was a mockery towards the workers.
In answer to same, the workers agreed to go on strike tomorrow Wednesday
at 8:00 A. M. and to continue on strike until you decide to sign the agreement.
We are in the best disposition to meet and continue the discussions of the
agreement when you decide it. In the meantime, the strike will continue.
Cordially,
ANTONIO CUEBAS, President (U. G. T. 1. A. 1.).
JOAQUIN PROSPER, Secretary.
On August 20 Respondent's president, Maurice Ades, wrote the Union expressing
regret about the strike and calling attention to the concessions made by Respondent.
The letter also stated, "as we are willing to continue negotiating, we sincerely regret
your action, and have to warn you that if by Friday, August 21, the workers do not
return to their work at the usual hour, we will be forced to substitute them with
other permanent workers." Similar statements were also sent to the employees
individually.
On August 21 or 22 the Union and Respondent met again at the offices of the
department of labor in Mayaguez. According to Cuebas' credited testimony, the
conciliators stated "that they were there to see if they could get the Company to
agree to start negotiating in order to settle the srike." Cuebas informed the con-
ciliators "that the union representatives were present and in the best disposition to
reach an agreement satisfactory to both parties to sign the agreement and settle
the strike.. " Licari "answered that they were there in answer to a call from the
conciliators but that they were not there to negotiate nor to sign anything, that
they were not giving anything, that they were not signing anything, that if the workers
wanted to go back to work they could do so under the same conditions, without
giving them any assurance on the part of the company." In view of this position
by Respondent the meeting ended and the strike continued.16
About a week later an undated letter was sent by the Union to Respondent,
.as follows:
Mr. ADES BROS
Maurice Embroidery Works Inc.
9 San Juan Street-Mayaguez Puerto Rico
DEAR SIR: We inform you that we have learned that the gentlemen from the
Conciliation and Arbitration Department are seeking to obtain that a meeting
be held between the parties involved in the strike conflict to see if the strike
can be settled.
We notify you that the leaders of the Union are in the best disposition to be
present at said meeting and to sit to bargain the collective bargaining agreement
in good faith and in that way solve the strike conflict.
16 It would appeal fiom Licari's testimony which I do not accept that at this meeting
the proposals and counterproposals were again gone over. As indicated above, Licari's
testimony was far from specific and detailed being in the form of a general statement in
which the sequence of events was often confused and sometimes obviously not consistent
with the documentation of the evidence. If I follow Licari's testimony correctly, he indi-
cates that there were 2 meetings with the Union in San Juan and no less than 7 in Maya-
guez. I believe Cuebas' account as set forth in the text more nearly reflects what hap-
pened.
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although we have been on strike for 10 days, we reiterate our position that
we always wanted to negotiate to your refusal to bargain in good faith.
We have communicated with you in writing so as to make it clear that at
no moment have we refused to bargain and that we are willing to again sit to
bargain in order to start the negotiations as soon as you want to.
Very truly yours,
ANTONIO CUEBAS, President (U. G. T. 1. A. 1.).
Apparently in connection with this letter another meeting between the parties was
held at the department of labor in Mayaguez about August 30-this time with the
chief conciliator, Collazo, present. Collazo announced that the purpose of the meet-
ing was to settle the strike. Licari indicated that he was present out of deference
to Collazo's invitation "but that he was not there to sign anything or negotiate any-
thing." After a conference between the union representatives and the conciliators,
Cuebas told Licari that if the Company was willing to recognize the Union and take
back the employees with a guarantee of no reprisals, the Union was willing to end
the strike "and leave the rest of the agreement to be negotiated when the company
would be working normally again." Rejecting this proposal, Licari stated that the
employees could return to work under the same conditions prevailing when they
embarked on the strike "and with no guarantee whatsoever regarding the Union."
Without avail the conciliators pressed Licari and Ades for acceptance on-the grounds
that "they were giving nothing but guaranteeing the right of the workers and the
right of the Union to continue negotiating since the Union was certified by the
National Labor Relations Board."
On September 2 the Union wrote to Respondent, as follows:
MR. ADES BROS Wednesday Sept. 2, 1953.
Maurice Embroidery Works Inc.
Calle San Juan #9, Mayaguez
SIR: In the name of all the workers employed at your shop whom we repre-
sent and who went on strike Wednesday Aug 19 at 8 A. M., we hereby notify
you that we have decided to return to work under the same working conditions
as before the strike.
All the workers will be ready to start working next Tuesday at 8 AM.
We hope that you will not discriminate against the workers who exercising
their right went on strike.
We await your reply.
Yours truly,
THE UNION ANTONIO CUEBAS, President (U. G. T. I. A. 1.).
JOAQUIN PROSPER, Seci etary.
No reply was made.
On September 25 the Union directed letters to both Licari and Respondent asking
that negotiations continue and requesting an answer within 10 days. These letters
were replied to on October 1 by Attorney Pales with the information that continued
negotiations would have to await Maurice Ades' return from the United States.
On October 23 the Union again wrote similar letters to Licari and Respondent seek-
ing resumption of negotiation on the proposals made by the Union on June 11 which
the Union claimed Respondent had "refused to discuss."
On November 6 the Union wrote separate letters to Licari, Pales, and Respondent
requesting a meeting with them the following Wednesday at the department of labor
in Mayaguez still seeking negotiation of a contract. On November 9 Respondent and
Pales in separate letters to the Union referred to Licari's absence in the United States
and requested postponement of a meeting until his return. No further evidence was
offered as to the refusal to bargain.
I deem it unnecessary to evaluate and develop conclusions as to the bulk of
Respondent's conduct herein since two aspects of that conduct in my opinon clearly
establish the allegation that Respondent refused to bargain in violation of Section 8
(a) (5) of the Act.
I refer specifically to Respondent's refusal on August 21 or 22 at the department
of labor in Mayaguez to negotiate after the strike had started and its refusal at the
same place about 10 days later not only to negotiate but even to consider the Union's
suggestion that the Respondent recognize the Union, permit the strikers to return to
work with Respondent's guarantee of no reprisal against them, and hold in abeyance
the matter of collective bargaining until operation had returned to normal. In
both instances, I conclude and find, Respondent refused to bargain with the duly
designated representatives of its employees within the meaning of Section 8 (a) (5)
of the Act. Cf. R. I. Oil & Refining Co., Inc., 108 NLRB 641 and cases cited therein
MAURICE EMBROIDERY WORKS, INC. 1155
particularly N. L. R. B. v. United States Cold Storage Corp., 203 F. 2d 924 (C. A. 5),
enfg. 96 NLRB 1108, cert. denied 346 U. S. 818, and N. L. R. B. v. Reed & Prince Mfg.
Co., 118 F. 2d 874 (C. A. 1), cert. denied 313 U. S. 595.
B. The violation of Section 8 (a) (3)
The complaint as amended at the hearing alleged that on or about September 2,
Respondent discharged the employees named in the Appendix hereof and, despite
their application for reinstatement on or about that same date, has refused to rein-
state them because of their union activities or their participation in the strike. Hav-
ing found that prior to the termination of the strike Respondent refused to bargain
with its employees in violation of Section 8 (a) (5) of the Act, it follows that at
that point if not sooner (a question I've found it unnecessary to decide), the strike
became an unfair labor practice strike entitling the strikers to immediate reinstate-
ment upon their unconditional offer to abandon the strike and its objectives and
return to work.17
Cuebas' letter of September 2 to Respondent, supra, clearly constituted an uncon-
ditional offer by the employees to return to work at 8 a. in., September 8.18
By Respondent's failure to honor that request, I find it discriminated against the
employees in violation of Section 8 (a) (3) of the Act. Respondent apparently
would avoid such a finding by contending that there was no refusal to reinstate the
strikers; that, according to Respondent's evidence, several of the striking employees
made personal applications for reinstatement a day or so after the strike ended 19
and were told in substance that they would be reemployed as soon as the elimination
of the strike disruption permitted; that to effectuate this promise they were asked
to return to the plant in about 2 weeks which they never did, and that this request
was in accordance with Respondent's practice of never directly notifying employees
of the availability of work.
Even if the evidence was to the above effect I would find that by its failure to
respond to the Union's unconditional offer to return to work Respondent certainly
discriminated at least against those who did not make personal applications. Assum-
ing that Respondent may not have been able to absorb immediately all those who
applied a day or so after the strike ended or who might have applied on September 8,
this would not have absolved Respondent from taking more affirmative action than
it did in meeting the obligation to reinstate. The least Respondent could and should
have done to support its position would have been to notify the Union of any prob-
lems confronting Respondent regarding immediate absorption of the strikers in its
production schedules and either have given the Union a definite commitment regard-
ing the question of reinstatement or have offered to work the problem out with the
Union to a definite conclusion.
But the crux of Respondent's evidence on this matter, that the applicants were
told to return in about 2 weeks thus putting the onus on them to perfect their appli-
cations, is not credited.
The substance of the testimony by the majority of the General Counsel's wit-
nesses was that Ades and Plant Manager Maria Antonia took their names and told
told them that as soon as the work was organized Respondent would send for them.
According to the testimony of Maria Antonia, both she and Ades told the group at
that time that Respondent needed 2 or 3 weeks to get the work organized, that they
would take the applicants' names so as to know what operation to put them on and
told them to come back in 2 weeks. Among those named in her testimony as being
included in the group to whom these remarks were made were Carmen Plaza, Mar-
garita Torres, Angelica Valentin, Marina Cintron, and Carmen Rodriguez.
Antonia also testified on direct examination that Ades told her that as soon as she
organized the work and the employees made application she should hire them "with
17 N. L. R B. v. Pecheur Lozenge Co , Inc, 209 F 2d 393 (C. A. 2 ), cert. denied 347
U. S 953
18 It is found that all the employees named in the Appendix herein participated in the
strike No individual applications were required . N L R B. v Brown, and Root, 203 F.
2d 139 , 147 (C. A 8) ; Wheatland Electric Cooperative , Inc, 102 NLRB 119, 1120; Sifers
Candy Company, 75 NLRB 296, 297.
"Eleven of the General Counsel's witnesses testified as to making a personal application
for reinstatement in a group at the time . From this testimony it would appear that about
15 or 16 applicants presented themselves for reinstatement and that 5 or 6 of them were
hired at this time . I so find.
344056-55-vol 111-74
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the exception of some who had engaged in violence during the strike." Those she
could not hire at that moment but was to wait. Nowhere in her direct examination
does it appear when she was told this-nor did specific questions about it on cross-
examination bring out that information. She could not remember-except that it
was after the strike.
Ades' testimony was that he told the group they were "organizing the machines
and could not hire all of them at one time"; that he "took down their names to know
where to locate each one on a certain operation"; and that he instructed Maria An-
tonia "that as soon as there was work when they came back they should be assigned
to their machines."
In answer to a leading question by his counsel Ades then testified that he left
instructions with Maria Antonia that Yournet, Carmen Rodriguez, Margarita Torres,
Marina Cintron, Angelica Valentin, and Carmen Plaza were not to be rehired because
of picket line violence on their part. Although this question and answer appears
in a context concerning the group application the day after the strike there is no
specific indication that it was at that time the instructions'was given. The significance
of this testimony as it affects the defense of picket line misconduct to the reinstate-
ment of the above people will be discussed below.
Partly because of the illogical way Respondent would have me believe the assign-
ment of work was to be semicontingent upon an employee's application rather than
upon the readiness of the work and the need of the employee, partly because of the
unconvincing explanation given by both Ades and Antonia for taking the names of
the applicants 20 and partly because the evidence shows that Respondent (contrary
to its contention) did call some people back to work,21 I am inclined to and do credit
the General Counsel's witnesses in their testimony that they were told by Respondent
they would be notified when work was ready for them.
But they were not recalled.22 Yet within 8 weeks after the strike ended when
Respondent's payroll rose to 110 employees (3 less than when the strike started) the
Respondent had added 43 new employees to its rolls. From this evidence it is clear,
and I find, that neither as to those who made unsuccessful personal applications nor
as to those who fruitlessly relied on the Union's unconditional offer on their behalf
has Respondent fulfilled its legal obligation to reinstate the striking employees. By
this failure Respondent committed an unfair labor practice.
C. Picket line misconduct
On October 13 Licari wrote to the Regional Office of the Board in San Juan stat-
ing that:
With respect to Francisco Yournet, Carmen Plaza Hernandez , Margarita
Torres Torres, Angelica Valentin, Marina Cintron and Carmen Rodriguez Perez
we do not intend to rehire them because they engaged in violence during the
strike ( see case No. 24-CB-90).
Of the foregoing people only Carmen Rodriguez Perez was named in the con-
solidated complaint . But by way of motion by the General Counsel at the hearing
over Respondent 's objection , the General Counsel was permitted to add to the
alleged discriminatees listed in the complaint the names of Margarita Torres Torres,
Marina Cintron, and Angelica Valentin Pratts.
The record shows, as was argued by Respondent's Counsel in opposition to the
motions to amend the complaint as indicated above, that in the original charge filed
September 30 by the Union in case number 24-CA-504, 15 alleged discriminatees
were listed including all 6 of the people referred to in Licari's letter of October 13
to the Board . In a first amended charge on the same case filed December 14, while
26 alleged discriminatees were named , only Carmen Rodriquez Perez of the 6 people
in question was included in this charge . Then, when the consolidated and amended
complaint was issued on December 17 the alleged discriminatees named were the
20 It is apparent from the direct examination of Maria Antonia that the company records,
as would normally be assumed, provided complete and accurate information as to what
operations the striking employees had been working on not only just before the strike but
at all times during their employment
n Supervisor FIIicidad Balines testified that several days after the strike Respondent sent
for Dommago Gaztambide and Lydia Rodriguez, the latter sending word back that she
could not come back to work because she was ill
22 Most of the General Counsel's witnesses testified that they made several additional per-
sonal applications to Respondent for reinstatement which is denied in part by Respondent's
testimony. To what extent if any such applications were made is unnecessary to decide.
MAURICE EMBROIDERY WORKS, INC. 1157
same as were named in the first amended charge, including, as indicated, only Carmen
Rodriquez of the six in question. In the meantime, a charge against the Union had
been filed on August 28 by the Company that culminated in a settlement agreement
between the Board and the Union in which the Union agreed to post a notice to its
members as follows:
WE WILL NOT engage in, foster, incite, approve, or condone threats of or acts
of violence by officers, directors, agents or members of the above named labor
organization against employees of the above named employer or any other
employer, for their refusal to participate in a strike or concerted activity at the
employer's or any other employer's factory or place of business, in the exercise
of their rights guaranteed in Section 7 of the Act, as amended.
As to the alleged misconduct, Maria Antonia testified that on the first morning
,of the strike Carmen Rodriquez Perez (who identified herself on the witness stand
as a director of the picket line), in an attempt to stop Jean Rodriquez from entering
the plant, grabbed the latter by the arms and pinned her against the wall of an ad-
jacent house telling her she could not go in to work because there was a strike going
on. Maria Antonia told Carmen, "well, if she wants to come in you cannot stop her
or threaten her." Some of the pickets also told Carmen to let her go in if she wanted
to. Thereupon Carmen allowed Jean to enter the plant. Although Carmen denied
any disturbance or affray on the picket line, I credit Maria Antonia.
Police Office Rafael Calero testified that on August 25 Angelica Valentin and
Marina Cintron attacked Maria Ramirez Martinez at noon as the employees were
leaving the plant-Angelica with her fists and Marina with an umbrella. They were
promptly arrested. Cintron did not testify about the matter. Valentin denied any
encounter with the police during the strike and denied having been arrested. The
records of the District Court of Mayaguez show that on August 25 Angelica Valentin
end Marina Cintron pleaded guilty of simple assault. l credit Officer Calero.
Margarita Bayron testified credibly that on or about August 25 at noon when the
employees were coming out of the plant Margarita Torres struck her with an um-
brella and was about to hit her again when a policeman interceded and arrested them.
The district court records also show that on August 25 Margarita Torres pleaded
guilty to simply assault.
I am of the opinion that the above conduct was not a manifestation of the ex-
,cusable "animal exuberance and mutual harassment characteristic of such strike
situations" as contended by the General Counsel. On the contrary I believe and
find that it belongs in the category of activity unprotected by the Act for which the
employees may be legally discharged or refused reinstatement 23 absent its condona-
tion by the employer. As an alternative position, the General Counsel also contends
that in any event the Respondent did in fact condone the conduct and first raised the
question on the advice of Counsel 6 weeks after the strike was ended after having
previously indicated its willingness to take back the guilty employees. In my opinion
the evidence and the law support the General Counsel's position.
The testimony of Plant Manager Antonia and of Ades has already been set forth.
It conflicts with the testimony offered by the General Counsel's witnesses (namely
that the employees were told to make further application to ascertain if work was
ready rather than that they were told they would be notified when the work was
ready) and I have already resolved in favor of the General Counsel. However, no
matter how that conflict might have been resolved, it would not help Respondent
regarding the question of condonation. For, it seems to me, Respondent's willing-
ness to overlook or waive that conduct under the circumstances herein would be as
evident in its request to the employees in question to check back to see when work
would be ready as in the statement to them that Respondent would notify them when
,employment was available for them.
Nor can I believe or find on this record that Ades took any position against the
hiring of the employees in question or issued any orders against such action prior to
or at the time they applied for reinstatement, as set forth above, the day after the
strike ended. And it can hardly be said that at that time Respondent was not aware
.of the conduct which later it informed the Board it relied on as a grounds for refusal
to reinstate those employees. Besides Antonia's eye witness testimony of the picket
line conduct of Carmen Rodriquez and Yournet there is Respondent's CB charge
against the Union filed August 28, together with Respondent's referral to the Board
of the names of the individuals who "committed violence and had been arrested in
the picket line" and the names and badge numbers of the police officers who made
the arrests. On these facts I find that Respondent condoned or waived the picket
xs N. L R. B. v. Cleat field Cheese Co., Inc., 213 F. 2d 70 (C A. 3).
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
line misconduct of Carmen Rodriquez, Angelica Valentin, Margarita Torres, and
Marina Cintron.24
D. Interference, restraint, and coercion
Among those things alleged in the complaint as constituting violations of Section
8 (a) (1) of the Act by Respondent are. surveillance, bribes, threats, promises of
wage increases, imposing upon employees coercive speeches, and denying access by
union officials to company premises for organization, collective bargaining, and union
activity purposes.
I find no evidence in this record supporting a finding that Respondent engaged in sur-
veillance of the union activities of the employees.25 The dismissal of that allegation
will be recommended.
I shall also recommend the dismissal of the allegation of the complaint that the
union representatives were denied access to the premises of the company for collec-
tive bargaining and organization or union activities. Apparently, the general Counsel
relies on the Union's written request of July 28 to Respondent for the opportunity
to be present at sporadic employee assemblies at the end of the workday referred to
above. That letter ended with the following paragraph:
If by any chance you hold another assembly this afternoon we expect that you
will notify us so as to be present. In that case, you can call us at telephone 690.
As indicated, no reply to this request was ever received by the Union. The evi-
dence is undisputed that from time to time for some months before the strike the
employees were assembled a few minutes before quitting time for group instructions
and discussion about the work. These meetings usually continued a few minutes
after the quitting time. The only real conflict between the Respondent's and the
General Counsel's testimony is the latter's assertion and the former's denial that
Ades voiced his displeasure regarding the Union at these meetings and tried to influ-
ence employee adherence to the Union by promises of benefit as well as threats of
reprisals.
Thus we have Baudilia Carlo's testimony that among other things Ades said that
if the employees went on strike he would discharge them; Julia Morales Martis
testified that Ades told them he would discharge them if they continued to attend
union meetings; Margarita Torres Torres testified that Ades said he did not want any
kind of a union in the shop-that he would give them money and presents if they
wanted them but no union; Angelica Valentin Pratts testified that Ades said he did
not want unions in the shop because since the Union had come in the employees
were falling down on the job and those following the Union would be discharged.
However this conflict is resolved, I find that it does not support the allegation that
the union representatives were denied access to company premises for the purposes
stated in the complaint. Obviously no organization functions were involved since
the Union had already been certified as the employees' bargaining representative.
Moreover, it is clear that the objective sought in the Union's letter of July 28 was
not one of collective bargaining. There is no evidence that an employee meeting
was held on the day the Union requested notice thereof. There is no evidence that
a union representative ever actually sought and was refused access to Respondent's
premises. As I view it, the fact that Respondent might make some coercive state-
ments in these otherwise ligitimate meetings would not make a union representative's
exclusion therefrom an unfair labor practice under the circumstances herein.
Nor does the evidence, in my opinion, support the allegation that Respondent
violated Section 8 (a) (1) of the Act by compelling employees to listen to speeches
"urging, persuading, warning and coercing employees to refrain from union activi-
ties." Apparently it is the above-mentioned meetings with the employees at the
end of the workday that the General Counsel would point to as proof of this allega-
tion. That the Employer had a light to assemble his employees on company time
to discuss their work is obvious. If he also engages in coercive conduct during this
time, he violates the Act, not because he has assembled the employees which he had
a right to do but because of what he did when they were assembled. Since there is
no evidence that the employees were not free to leave these meetings when quitting
time arrived, any aspect of compulsion from that point by Respondent, of course,
is lacking.
21 Cf. Marshall Car Wheel and Foundry Co of Marshall, Texas, Inc., 107 NLRB 314,
and cases cited therein
25 Apparently the circumstances of the attendance of Maria Antonia at a union meeting
on July 29 was meant to prove this allegation. The undenied testimony, though some-
what confusing, shows that she was invited into the hall by union members and that her
presence in the vicinity was not for the purpose of spying on the union meeting. I so find.
MAURICE EMBROIDERY WORKS, INC. 1159
There remains to be disposed of the question of Respondent's alleged threats of
reprisals and promises of benefits concerning its employees' union activities. The
evidence and its conflict on the subject in connection with the above meetings has
been noted. Notwithstanding that the reliability of one of the General Counsel's
witnesses in this matter appears questionable,26 I find in accordance with the testi-
mony of Carlo, Morales, and Torres that Ades both threatened them with discharge
if they continued their union activity and cajoled them with the promise of gifts
if they would give up their union aspirations for his shop.
Supervisors Jean Rodriguez and Felicidad Balines both testified that the meetings
in question were held for the purpose of encouraging employees to higher achieve-
ment with respect to new work. Significantly, Rodriguez could not remember if
the Union was mentioned by Ades in these meetings and neither she nor Balines
denied it . It also appears from the evidence that no similar meetings were held
during the strike or since the strike although a new subcontract was obtained by
Respondent after the strike started.
With respect to the Union meeting of July 29 at which Maria Antonia made an
appearance, several of the General Counsel's witnesses testified in effect that Antonia
told them to think well what they were doing because Ades did not want a union
and if they went on strike they would be discharged 27 The sum and substance of
Antonia's testimony about her comments at the meeting was that she made an inquiry
about one matter-"about those meetings that they claimed Mr. Ades was holding
in the shop" which in its letter of July 28 to Respondent, the Union contended were
illegal. She also categorically denied making the statement attributed to her by the
General Counsel's witnesses explaining that at that time she "did not know there
was a strike being organized." On cross-examination she testified that Ades never
discussed with her nor mentioned to her the Union and that she had read no corre-
spondence from the Union concerning a strike or a possibility of a strike. That
she either read union correspondence or talked to Ades about union matters is clear
from her knowledge of the Union's communication of July 28 about the company
meetings with the employees. It is also clear that almost from the start the Union
did not hesitate to imply that there was a possibility of a strike occurring. Thus,
on June 11 the Union wrote Respondent at Mayaguez in part, as follows:
We think it is wise to advance [sic] you that it is our desire that the negotia-
tions of the agreement be carried out without our having to resort to a workers
stoppage. .. .
and on July 10 in part that:
We reiterate our commitment that we desire to reach an agreement without
having to recurr to other means afforded to us by the labor laws.
I credit the General Counsel's witnesses and find that Antonia told the employees
in the union meeting of July 29 that they would be discharged if they went on strike.
Isabel Valladares testified that on her way home from picketing about 7:30 p. m.
on August 28, Ades and Balines in a station wagon overtook her. Balines called to
her, "Come over, Isabel, Mr. Ades is willing to give you $25.00 to break the strike
and go back to work." Isabel said, "No." Ades said nothing.
Marina Cintron testified that during the strike on a Friday about 10 a. m. Balines
came into Cintron's house alone and told her that Ades was offering her $25 to
break the strike and go back to work which she refused. Balines left and drove
away with Ades in a station wagon. Two days before the strike ended about 8:30
p. m. Balines allegedly came to Carmen Rodriguez's home about which Rodriguez
testified as follows:
She came as usual and I thought it was to tell me I could go to work and
she brought news that the strike had terminated and when I asked her: "Well,
what is new" she said "Nothing, I came to tell you that Mr. Ades sent me to
tell you that if you wanted $25 you could go back to work tomorrow." Then
I answered: "My word and my dignity are worth more than Mr. Ades' shop or
the whole world." Then she said "That is nothing, because all those that we
have approached have abandoned the strike and have gone back to work."
Then I told her that if the others had sold themselves for $25 I would not do
that. Then nothing else happened and she left.
20 Pratts, contrary , to fact denied any picket line trouble or her arrest in connection
therewith.
7 Carlos, Pratts , Leopolda Perpina, and Lydia Rodriguez in substance so testified.
Herminia Valentin testified that Antonia said Ades wanted no unions and if the em-
ployees continued to support the Union "he would close the shop."
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARu
The entire foregoing is denied in the direct testimony of both Balines and Ades.
On the subject in question that testimony simply amounts to terse, flat denials. More-
over, the entire direct testimony of those two witnesses on all aspects of the case
is extremely short-covering only 11 pages of the record. Since neither one was
cross-examined, this leaves me with but a brief glimpse of these two on the witness
stand, and nothing more, upon which to evaluate their testimony. There was noth-
ing in the brief glimpse alone that gave me any feeling that these witnesses were
testifying falsely. On the contrary the reliability of the testimony of the General
Counsel's witnesses on this matter is subject to varying degrees of question. The
testimony of Carmen Rodriguez is considerably damaged by her specific denial of
the occurrence of picket line incidents which I find are clearly established by the
evidence.28 To a lesser extent the testimony of Valladares and Cintron presents
imperfections, minor though they be, which prevents a complete and unqualified
acceptance thereof. In this compaiative light of both versions I am constrained
to resolve the conflict on this matter in favor of Respondent's denial.
In view of the foregoing I find Respondent violated Section 8 (a) (1) of the Act
by (1) Ades' threats of discharge to employees for continuing union activity, (2)
Ades' promise of gifts to employees for giving up the Union, and (3) Maria Antonia's
telling employees that they would be discharged if they went on strike.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion 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 tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Since it has been found that Respondent has engaged in certain unfair labor prac-
tices, it will be recommended that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
It has been found that Respondent refused to bargain with a duly designated repre-
sentative of its employees in an appropriate unit. It will therefore be recommended
that Respondent upon request, bargain with Union General de Trabajadores De La
Industria De La Aguja, Independiente, and if an understanding is reached, embody
such understanding in a signed agreement.
It has also been found that Respondent discriminated in regard to the hire and
tenure of the employees named in the Appendix hereof. It is recommended that
Respondent offer them reinstatement to their former or substantially equivalent posi-
tions without prejudice to their seniority or other rights or privileges, dismissing if
necessary persons hired after the date on which the strike was converted to an unfair
labor practice strike. I shall also recommend that Respondent make said employees
whole for any loss of pay they may have suffered by reason of Respondent's refusal
to reinstate them by payment to each of them of a sum of money equal to that which
each normally would have earned as wages from September 8, 1953, the date the
Union set for the unconditional return to work by the strikers, to the date of Re-
spondent's offer of reinstatement, less his or her net earnings, if any, during said
period. Loss of pay shall be computed upon a quarterly basis in the manner estab-
lished by the Board in F. W. Woolworth Company, 90 NLRB 289; N. L. R. B. v.
Seven-Up Bottling Company of Miami, Inc., 344 U. S. 344.
In view of the nature of the unfair labor practices committed, the commission by
the Respondent of similar and other unfair labor practices may reasonably be antici-
pated. The remedy should be coextensive with the threat. It will therefore be rec-
ommended that the Respondent cease and desist from infringing in any manner upon
the rights guaranteed employees by Section 7 of 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. Union General de Trabajadores De La Industria De La Aguja, Independiente,
is a labor organization within the meaning of Section 2 (5) of the Act.
2. All production and maintenance employees of Respondent at its needlework
factory in Mayaguez, Puerto Rico, excluding executive, administrative, office clerical
21 She testified she directed picket line activities and was present at the scene of the
picketing the entire time of the strike
MAURICE EMBROIDERY WORKS, INC. 1161
and professional personnel, guards, watchmen, and supervisors as defined in Section
2 (11) of the Act, constitute a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9 (b) of the Act.
3. At all times since May 25, 1953, the Union has been and now is the exclusive
representative of all the employees in the above unit for the purposes of collective
bargaining within the meaning of Section 9 (a) of the Act.
4 By failing and refusing at all times since August 22, 1953, to bargain collec-
tively with Union General de Trabajadores De La Industria De La Aguja, Inde-
pendiente, Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (5) and (1) of the Act.
5. By discriminating in regard to the hire and tenure of employment of the em-
ployees named in the Appendix herein Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act.
6. By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, Respondent had engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Appendix
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Re-
lations Board, and in order to effectuate the policies of the National Labor Relations
Act, we hereby notify our employees that:
WE WILL NOT discourage membership in Union General de Trabajadores De
La Industria De La Aguja, Independiente, or in any other labor organization of
our employees, by discriminating in any manner in regard to hire, tenure, or any
other term or condition of employment.
WE WILL NOT threaten employees with loss of employment because of their
activities in behalf of Union General de Trabajadores De La Industria De La
Aguja, Independiente, or any other labor organization.
WE WILL NOT offer inducements or gifts to employees to abstain from activi-
ties in behalf of Union General de Trabajadores De La Industria De La Aguja,
Independiente, or any other labor organization.
WE WILL NOT in any manner interfere with, restrain, or coerce our employees
in the exercise of the right to self-organization, to form labor organizations, to
join or assist the above-named or any other labor organization, to bargain col-
lectively 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 engaging in any or all such activities, except
to the extent that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment in conformity with
Section 8 (a) (3) of the Act.
WE WILL offer the following employees immediate and full reinstatement to
their former or substantially equivalent positions, without prejudice to any
seniority or other rights and privileges, and make them whole for any loss of pay
suffered as a result of the discrimination against them
Virginia Aveillez
Carmen Beauchamp
Carmen Estremera
Matilde Ferrer
Rosa M. Figueroa
Tomasa Gonzalez
Maria L. Matias
Rosa N. Ouslan
Maria T. Rivera
Maria A. Sulzona
Clorinda Torres
Victoria Torres
Genara Vega
Rosa J. Alicea
Rosa M. Aguino
Berta Canino
Baudilia Carlo
Julia Morales
Carmen Rodriquez Perez
Lydia Rodriquez
Hermina Valentin
Isabel Valladares
WE WILL bargain collectively, upon request, with Union General de Traba-
jadores De La Industria De La Aguja , Independiente , as the exclusive representa-
tive of all the employees in the bargaining unit described below with respect to
rates of pay, wages, hours of employment, and other conditions of employment,
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and if an understanding is reached embody such understanding in a signed agree-
ment. The bargaining unit is:
All production and maintenance employees of the Mayaguez factory ex-
cluding executive , administrative , office clerical and professional personnel,
guards, watchmen , and supervisors as defined in Section 2 (11) of the
National Labor Relations Act as amended.
All our employees are free to become or remain, or to refrain from becoming or
remaining , members of any labor organization , except to the extent above-stated.
MAURICE EMBROIDERY WORKS, INC.,
Employer.
Dated---------------- By----------------------------------------------
(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.
T. A. MCGAHEY , SR., T. A. MCGAHEY, JR., MRS. ALTIE MCGAHEY
JONES, AND MRS. WILDA FRANCES MCGAHEY HARRISON , D/B/A Co-
LUMBUS MARBLE WORKS, A PARTNERSHIP and THE AMERICAN FED-
ERATION OF LABOR. Case No. 15-CA-544. March 29, 1955
Decision and Order
On September 9, 1954, Trial Examiner Sydney S. Asher, Jr., issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents 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 copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found that
the Respondents had not engaged in certain other unfair labor prac-
tices and recommended that the complaint be dismissed in these re-
spects. Thereafter, the Respondents and the General Counsel filed
exceptions and supporting briefs.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and briefs, and the entire record in this
case and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the following additions and
modifications :
1. The Trial Examiner found that Respondent T. A. McGahey, Sr.,
engaged in surveillance of the union meeting held in mid-December
1952, and thereby violated Section 8 (a) (1) of the Act. We do not
agree.
The record shows that the Union had scheduled a meeting for the
Respondents' employees at a hall located in a neighborhood shopping
center a few blocks from McGahey's residence ; and that McGahey was
seen parked in his car across the street from the hall when the meeting
111 NLRB No. 195.