Panaderia Sucesion Alonso

National Labor Relations Board - Board Decisions

Dec 16, 1949

87 N.L.R.B. 877 (N.L.R.B. 1949)

In the Matter of URSILA CERVANTES, ERNESTO ALONSO, ESTR LLA
URSULA ALONSO, ANTONIO ALONSO, MIGUEL ALONSO AND RAMON
ALONSO D/B/A PANADERIA SuoESION ALONSO and ANSELMO GUTIER-
REZ, AN INDIVIDUAL
Case No. 38-C9.-13.Decided December 16,1911'
DECISION
AND
ORDER
On May 31, 1949, Trial Examiner Merritt A. Vickery issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents by discharging Anselmo Gutierrez did not commit or
engage in any unfair labor practice within the meaning of the National
Labor Relations Act, as amended. Accordingly, he recommended that
the complaint be dismissed, setting forth his reasons in a copy of the
Intermediate Report attached hereto. Thereafter, the General
Counsel filed exceptions to the Intermediate Report and filed briefs in
support of his exceptions.
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 Interme-
diate 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 exceptions and modifications
noted below.
1. Respondents operate a bakery at Palmer, Puerto Rico, in which
they employ three production workers. During 1948, their purchases
from continental United States totaled approximately $7,800. All of
their products were sold locally. In addition, the Respondents operate
a sugarcane plantation, which is conducted as an entirely separate and
independent enterprise apart from the bakery. The Respondents in
their answer admit that they are engaged in commerce within the
meaning of the National Labor Relations Act. The Trial Examiner
found, and we agree, that the Respondents are subject to the jurisdic-
tion of this Board. However, the Trial Examiner questions the wis-
87 NLRB No. 108.
877
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dom of exercising jurisdiction in this case because the business involved
is predominantly local in nature.
Further, he also questions the wisdom of applying the National
Labor Relations Act, which is primarily designed to meet conditions
existing in the United States, to Puerto Rico. On the latter point, he
observes that the economy of Puerto Rico, the character of its labor
movement, the degree of education among its working people, and the
attitude of management toward labor differ substantially from and
compare unfavorably with similar factors in the United States. How-
ever, there is no evidence in the record in this case to support the Trial
Examiner's remarks; nor has the Board had such evidence before it
in any other cases already decided. Furthermore, in the light of
available information concerning the economy of Puerto Rico and its
labor movement, we find his remarks to be largely unfounded, espe-
cially those comments which reflect disparagingly upon the responsi-
bility of labor and the degree of education' among the working people
in Puerto Rico. We emphatically reject all remarks and observations
contained in the Intermediate Report relating to the economy of
Puerto Rico and the character of its labor movement and its working
people.
It may well be true, as the Trial Examiner suggests, that were the
Respondents' bakery located in one of the 48 States, we would dismiss
this proceeding on the ground that the business involved is so small
and local in nature that an interruption of its operations by a labor dis-
pute would have only a remote and insubstantial effect on commerce.,
However, the term "commerce" when applied to Puerto Rico has a
broader meaning than when applied to any of the States. By statu-
tory definition,' all trade within any Territory 3 is embraced by the
term "commerce," whereas with respect to a State, only trade between
such State and outside points is embraced by that term. In conse-
quence, the Board has plenary jurisdiction over all business enter-
prises within Puerto Rico 4
Initially, the Board exercised its jurisdiction in Puerto Rico quite
extensively -and directly. In 1945, however, the Insular Legislature
enacted the Puerto Rico Labor Relations Act,5 modeled upon the exist-
ing National Labor Relations Act (Wagner Act). The National
Haleston Drug Stores, Inc., 86 NLRB 1166; H. W. Smith, d/b/a A-1 Photo Service,
83 NLRB 564; Fred Montgomery, d/b/a Pereira Studio, 83 NLRB 587. See Hardin's
Bakeries Corporation, 84 NLRB 942; Conlon Baking Company, 81 NLRB 934; Sta-Klccn
Bakery, Inc., 78 NLRB 798.
2 National Labor Relations Act, Section 2 (6).
Puerto Rico is included within the term "Territory." Ronrico Corporation, 53 NLRB
1137; N. L. R. B. v. Gonzalez Padin Company, 161 F. 2d 353 (C. A. 1, 1947).
4 Gonzalez Padin Company, Inc., 68 NLRB 520, enforced, N. L. R. B. v. Gonzalez Padin
Company, 161 F. 2d 353 (C'. A. 1, 1947).
5 Act No. 130, Laws of Puerto Rico, 1945, amended, Act No. 6, Laws of Puerto Rico, 1946.
PAINADERIA SUCESION ALONSO 879
Labor Relations Board soon thereafter designated the Puerto Rico
Labor Relations Board as its agent to institute in its behalf proceed-
ings under the National Act in Puerto Rico.6 The National Labor
Relations Board later permitted the Insular Board to exercise juris-
diction under the Puerto Rico Labor Relations Act in many types
of cases in which the National Board would otherwise have asserted
jurisdiction under the National Labor Relations Act.7 However,
continuation of these arrangements between the National and Insu-
lar Labor Relations Boards became impossible and were terminated,
when substantial differences between the Federal and Insular statutes
resulted from the amendment of the National Labor Relations Act by
the Labor Management Relations Act, 1947.8
Section 10 (a) of the amended Act permits the National Labor
Relations Board to cede jurisdiction over cases to any State or Terri-
torial agency only if the provisions of the State or Territorial statute
applicable to the-determination of such cases are not inconsistent with
the corresponding provisions of the amended Act. Because the dif-
ferences between the present Federal and Insular statutes are sub-
stantial, the National Labor Relations Board may not cede jurisdic-
tion over any cases to the Insular Board. An attempt to define an
appropriate area for action by the Insular Board over cases involving
essentially local business enterprises has proved unworkable and has
been abandoned by the Insular Board.' The Supreme Court of
Puerto Rico itself has recently held 10 that Section 10 (a) of the Labor
Management Relations Act, 1947, prohibits the Insular Board from
exercising jurisdiction over matters which are within the scope of the
Federal Act. Thus, at the present time, even if we were to decline
jurisdiction in the instant case, the Insular Board would be powerless
to act. Under all the circumstances, we believe that the purposes of
the Labor Management Relations Act, 1947, will be best effectuated
at present by this Board exercising jurisdiction within Puerto Rico
over enterprises of the type involved herein more fully than was our
practice during the period following the creation of the Puerto Rico
Labor Relations Board in 1945.
2. The Trial Examiner has found that the Respondents have not
violated Section 8 (a) (1) and (3) of the Act as charged in the com-
plaint herein. The alleged unfair labor practices originate from
the discharge of the complainant, Gutierrez, by Antonio Alonso, the
610 F. R. 10130, August 18, 1945.
7 Puerto Rico Labor Relations Board, Second Annual Report, p. S.
8 12 F. R. 7902, November 25, 1947.
9 Puerto Rico Labor Relations Board, Third Annual Report, pp. 8-9.
19 Bayamon Transit Company, Sucesora v. Puerto Rico Labor Relations Board, et al.,
70 P. R. Sup. Ct. No. 3, p. 292 (July 15, 1949).
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manager of Respondents' bakery 11 and also the manager of their
sugar cane plantation. Gutierrez was employed in the bakery from
1940 until his discharge on November 5, 1947. For about 13 years,
which antedates his employment with the Respondents, Gutierrez has
been president of a union of agricultural workers which represents
laborers at the Respondents' sugar cane plantation. The Trial
Examiner found that Gutierrez was discharged because he went to
Alonso's home on behalf of one Gabriel Fuentes Rivera, an agricul-
tural laborer, who had lost his employment at Respondents' planta-
tion. The Trial Examiner recommended that the complaint be
dismissed, on the ground that the acts done by Gutierrez in his ca-
pacity as president of an agricultural workers' union and in further-
ance of the union's interests and the interests of Fuentes, an agricul-
tural laborer, are not protected under Section 2 (3) of the Act. We
agree.
The Respondents cannot be found guilty of unfair labor practices
unless they have infringed upon rights granted "employees" by Sec-
tion 7 of the National Labor Relations Act. The General Counsel
argues that the Respondents have violated such rights in two ways :
First, that they have interfered with the right of Gutierraz-himself
a bakery employee-to engage in concerted activities; and second, that
they have interfered with their bakery employees' right to form, join,
or assist labor organizations, or engage in collective activities protected
by Section 7.
We find no merit in the first argument. Although the Respondents
may have interfered with the concerted efforts of Gutierrez and other
members of the agricultural union, such concerted activities are not
protected by the Act. Section 7 grants rights exclusively to "employ-
ees" as defined in Section 2 (3) 12 As agricultural laborers are not
"employees" within the meaning of Section 2 (3), they do not obtain
the benefit of the rights granted by Section 7. Among the rights
granted "employees" by Section 7 is the right to engage in concerted
activities for the purpose of collective bargaining or other mutual aid
or protection. Because Section 7 grants rights exclusively to "em-
ployees," any concerted activity must be that of more than one
"employee" in order to obtain the protection of Section 7. We do not
believe that one "employee" and nonemployees together may engage
"It is significant that the charges in this case do not arise from union activities in
Respondents' bakery. The bakery employees are unorganized. No question exists with
respect to any attempts to organize the bakery employees or with respect to concerted
action directly for their benefit.
12 See The International Rice Milling Co., Inc., et at., 84 NLRB 360.
PANADERIA SUCESION ALONSO 881
in protected concerted activities within the meaning of the Act. In
this case, because all Gutierrez' associates in his union activities were
agricultural laborers and were not "employees," there was. no con-
certed action as envisaged by Section 7 of the Act.13
The second argument advanced by the General Counsel is that
the discharge of Gutierrez constituted a threat and warning to the
other employees in the bakery that, if they should engage in union
activity, they likewise would face discharge. Therefore, it is con-
tended that by discharging Gutierrez the Respondents violated rights
guaranteed the bakery employees by Section 7 of the Act. Such
argument is not tenable in this case. Agricultural laborers are not
covered by the National Labor Relations Act and are not entitled to
any of the benefits thereof. It follows that activities by a single
employee on behalf of such laborers are likewise not protected by
the Act. In the present case, when Gutierrez, an "employee" as
defined in the Act, went to Alonso's home on behalf of Fuentes, an
agricultural laborer, he was engaged in an activity outside the pro-
tective scope of the Act 14 Respondents' discharge of Gutierrez for
such activity was therefore lawful. The fact that the discharge of
Gutierrez may have had the incidental effect of discouraging the other
bakery employees from exercising rights guaranteed them by Section
7 does not cause the Respondents' essentially privileged conduct to
assume the character of an unfair labor practice. Whenever an
unfair labor practice charge is filed with the Board based upon an
employer's discharge of active union members, it can be argued that
such discharges restrain and discourage other employees from engag-
ing in union activities. Nevertheless, if the Board finds that such
employees were discharged because they had engaged in activities
"The General Counsel refers to the case of N. L. it. B . V. Peter Cailler Kohler Swiss
Chocolates Co., Inc ., 130 F. 2d 503 ( C. A. 2, 1942 ), as authority for the contrary proposi-
tion. However in the Peter Cailler Kohler case, Whipple, the employee who was discharged,
acted in concert with other "employees" in the plant; whereas , in the instant case,
Gutierrez was associated with no other "employees" in his union activities . The question
for determination in the Peter Cailler Kohler case was not whether Whipple had been en-
gaged in concerted activity , but whether such activity was for "mutual aid or protection."
Thus , the Peter Cailler Kohler case is no authority for the issue presented in this case,
I. e., whether one "employee" and nonemployees together may engage in concerted activ.
ities within the meaning of Section 7.
14 For examples of other employee activities which are outside the protection of the Act,
see : The International Rice Milling Co., Inc., et al ., 84 NLRB 360 ; Dearborn Glass Com-
pany, 78 NLRB 891 ; Fontaine Converting Works, Inc., 77 NLRB 1386 ; Fafnir Bearing
Company, 73 NLRB 1008 ; Thompson Products, Inc., 72 NLRB 886; Joseph Dyson &
Sons, Inc., 72 NLRB 445; Scullin Steel Company, 65 NLRB 1294 , 1318 ; The American
News Company , Inc., 55 NLRB 1302 ; N. L. R. B. v. The Sands Manufacturing Company,
206 U. S . 332; N. L. it. B. v . Fansteel Metallurgical Corp., 306 U . S. 240 ; Southern Steam-
ship Company v. N. L. it. R.., 316 U. S. 31; N . L. it. B. v. Perfect Circle Company, 162 F. 2d
556 (C. A. 7, 1947).
877359-50-vol. 87-57
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unprotected by the Act 15 or were discharged for cause,16 the Board.
invariably refuses to find that the employer committed an unfair labor
practice by reason of such discharges, notwithstanding the incidental
effect upon other employees. For similar reasons, in this case, because
Gutierrez was discharged for engaging in unprotected activities, we do
not believe that the Respondents are guilty of violating the Act,.
despite the effect of the discharge upon the other bakery employees..
Upon the entire record in the case, we find that the Respondents.
have not been guilty of unfair labor practices within the meaning
of Section 8 (a) (1) and (3) of the Act, as amended. Accordingly,.
we shall dismiss the complaint herein.
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 orders that the complaint against the Respondents.
Ursula Cervantes, Ernesto Alonso, Estrella Ursula Alonso, Antonio,
Alonso, Miguel Alonso and Ramon Alonso d/b/a Panaderia Sucesion.
Alonso be, and it hereby is, dismissed.
CHAIRMAN HERZOG and MEMBER HOUSTON dissenting in part only::
We join our colleagues in exercising jurisdiction over this bakery-
in Puerto Rico, and in their repudiation of certain unfortunate lan-
guage in the Intermediate Report. We dissent, however, from their,
conclusion that the discharge of Gutierrez did not violate Section 8'
(a) (3). He was concededly an employee within the meaning of the;
Act, even though Fuentes, in whose behalf he acted, was not.
It seems to us unrealistic to say that the discharge of Gutierrez.
had only an indirect and remote effect on the other bakery employees,.
and would not have discouraged their membership in a labor organiza-
tion. There were only three employees at the bakery, including
Gutierrez himself. The other two were present when he was dis-
charged on the bakery premises. To conclude that the discharge of
Gutierrez because of his activities on behalf of a unionized agricul-
tural laborer did not violate Section 8 (a) (3) of the Act, requires the-
assumption that these bakers knew all the niceties of the National La-
15 Footnote 14, supra.
16 Chance Vought Aircraft Division of United Aircraft Corporation , 85 NLRB 183 (Em-
ployee who was president of union and leading organizer discharged for neglect of duty
and untruthfulness ) ; Stochham Pipe Fittings Company , 84 NLRB 629 ( Employee who was.
financial secretary and chairman of plant committee discharged for activities in connec-
tion with strike in violation of no -strike clause of contract ) ; Empire Box , Incorporated,.
79 NLRB 1011 ( Discharge of union president for engaging in union activities during-
working hours) ; The Pure Oil Company, 75 NLRB 539 ( Discharge of union president for
falsifying time card ) ; Underwood Machinery Company, 74 NLRB 641 (lay -off of union,
president for talking about union business during working hours).
PANADERIA SUCESION ALONSO 883
bor Relations Act, including the fact that agricultural labor is not pro-
tected by it, and the further assumption that they believed that, if
agricultural labor were covered, their employer would not have dis
charged Gutierrez. These assumptions, which seem to us a prerequi-
site to the majority's conclusion, are not acceptable to us.
The cases cited by our colleagues seem to us wholly inapposite,
involving as they do discharges for cause, not for activities on behalf
of a union. In such cases we must presume, as we do here, that em-
ployees are aware of the real reason for the discharge. The-real
reason.in those cases did not discourage union activities; in this case
it was calculated to do precisely that.
We would therefore find that Gutierrez' discharge because of his
activity on behalf of Fuentes discouraged union membership and
activity among the bakery employees, of whom Gutierrez was one,
and that the Respondent thereby violated Section 8 (a) (3) of the
Act.17
INTERMEDIATE REPORT
Lewis Moore, Esq., of Santurce , P. R., for the General Counsel.
Manuel Cruz Horta , Esq., of San Juan , P. R., for the Respondent,
STATEMENT OF THE CASE
Upon a charge filed by Anselmo Gutierrez, an individual acting in his own
behalf, on April 13, 1945, the General Counsel of the National Labor Relations
Board by the Regional Director for the Fifth Region issued a complaint dated
January 13, 1949, against the six persons named in the above caption to be doing
business as the Panaderia Sucesion Alonso. That complaint alleged that they
in that business, hereinafter referred to as Respondent, had engaged.in unfair
labor practices affecting commerce within the meaning of the National Labor
Relations Act, as amended.' Copies of the charge and the complaint were served
upon Ursula Cervantes, Ernesto Alonso, Estrella Ursula Alonso, and Antonio
Alonso and upon Anselmo Gutierrez. (At the hearing it was stipulated that
Miguel Alonso and Ramon Alonso had withdrawn from the business and were
neither necessary nor proper parties to the proceeding.)
With respect to unfair labor practices, the complaint alleged that on or about
November 5, 1947, Respondent discharged Anselmo Gutierrez because he joined
or assisted a labor organization or engaged in concerted activities with other
employees, in violation of Section 8 (a) (3) of the Act, and thereby interfered
with the rights of employees guaranteed by the Act, in violation of Section 8
(a) (1) of the Act.
Respondent filed an answer admitting that on or about the date alleged it
discharged Anselmo Gutierrez, denying that the discharge was motivated as
alleged in the complaint, and averring that the discharge was for cause.
17 See N . L. R. B. V. Fashion Piece Dye Works , Inc., 100 F. 2d 304 (C. A. 3, 1938) ;
Memphis Furniture Mfg. Co., 3 NLRB 26, 33 (enfd. 96 F. 2d 1018 ( C. A. 6, 1938 )) ; Fort
Wayne Corrugated Paper Co. v . N. L. R. B ., 111 F. 2d 869 , 874 (C. A. 7, 1940 ) ; N. L. R. ft
v. J. G. Boswell Company, 136 F. 2d 558 ( C. A. 9, 1943).
129 USC See . 151 et seq.
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to notice, a hearing was held before Merritt A. Vickery, Trial Ex-
aminer, designated therefor by the Chief Trial Examiner. The hearing was held
on February 18, 1949, at Rio Grande, Puerto Rico. All parties were represented
by counsel, participated in the hearing, and were afforded opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence bearing
upon the issues.
Upon the entire record and from my observation of the witnesses I make the
following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent operates a small bakery at Palmer, Puerto Rico. During the year
1948 it purchased flour to the value of $7,200, lard to the value of $60, and yeast
.to the value of $540. All these originated in continental United States. (There
is no evidence to show whether these items were purchased in continental
United States and imported to Puerto Rico by Respondent or were purchased by
it in Puerto Rico after the importation had ended and the goods had come to rest
in the hands of Puerto Rican dealers.) Respondent manufactured bread and
crackers which were all sold locally within Puerto Rico.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Panaderia Sucesion Alonso had only three production employees, a master
baker, a dough mixer-also known as an "officer"-and a helper. Gutierrez, the
complainant, had been employed as the dough mixer since 1940. (The record
suggests that at some time the bakery had employed another full or partial "shift."
But the evidence is insufficient to show whether this word was used in the sense
of increased operations in any one day or merely that the work was spread
among a greater number who worked on alternate days.)
The bakery employees were unorganized. (No question of their organization,
or of any attempt to organize them, or of concerted action by them, or of action
.for their direct benefit is involved in this proceeding.)
Antonio Alonso and at least one of his sisters who was associated with him
in the ownership of the bakery were interested in the ownership of a sugarcane
plantation. The evidence is insufficient to show whether there was complete
identity of ownership of the two enterprises-the bakery and the farm. Antonio
Alonso was the directing head of both operations. But there appears no room
for doubt but that they were entirely separate businesses. There is no evidence
to suggest that the profits, the products, or the operation of either enterprise was
in any way dependent upon or connected with the other.
The workers, or at least some of them, on the plantation belonged to a local
of the Union de Trabajadores Agricola Afialiada a la Federacion Libre de
Trabajadores de Puerto Rico, a union of agricultural workers. Anselmo Gu-
tierrez, although he had been employed as a dough mixer in Respondent's bakery
since 1940, and, hence was not himself an agricultural worker, was and ever
since 1933, long antedating his employment in the bakery, had been president of
that local.
In September 1947, Alonso, acting as executive head of the plantation, dis-
charged one of. the farm workers, one Gabriel Fuentes Rivera, who belonged to
the Agricultural Workers' Union. There is no claim made but that this discharge
arose, as Alonso testified, from economic necessity and was entirely proper.
On November 3 or 4, 1947, Fuentes went to the bakery to see Gutierrez to inquire
of him as president of the Agricultural Workers' Local what, if any, rights he
PANADERIA SUCESION ALONSO 885
had as an organized worker arising from.his discharge. Gutierrez, who was on
duty at the time, stated that he would be free to attend to the matter in a day or
two as he had the next 2 days off and that he then would accompany Fuentes
in seeing Alonso.
On November 5, 1947, Gutierrez with Fuentes went to Alonso's home. They,
found him absent and sought to speak to his sister who was associated with him
in ownership of the plantation.
She informed Gutierrez that :
she looked after the domestic duties and had nothing to do with the pay-
rolls and time sheets and books for' the cane field ; that her brother looked
after the business affairs, and to wait until he came in.
Later in the day, Gutierrez went to the bakery to see Alonso on Fuentes' behalf.
Before he had an opportunity to bring up the subject, Alonso discharged him.
So far the facts are without material dispute. The evidence is conflicting
regarding what was said at the time of the discharge and regarding the reasons
underlying it.
Gutierrez testified that Alonso told him his services would no longer be needed
and that in answer to a demand for the reason he replied,
Because you went to my house to discuss Gabriel's case, and what you are
doing here is union work.
He said that by doing that, by engaging in labor politics, I was prejudicing
his capital.
Diego del Cristo, a baker employed by Respondent, testified that he was present
when Alonso discharged Gutierrez. His story of the interview is,
. . . Alonso told him that he had given orders to Carlos to fire him, but
since he had arrived at that time, he was discharging him personally.
* * * * * *
... before discharging Anselmo he said to him : "Yesterday you went to
my home to defend a worker. You are earning your money here working
with me here, and you should not mix up in these things."
Antonio Alonso, on direct examination, inferentially admitted that Gutierrez'
visit to his home was the culminating and direct cause of the discharge. He
denied that he had said Gutierrez was fired because his labor activities were
detrimental to Alonso's interests. But neither on direct nor on cross-examina-
tion did he elaborate on what he said at the time of the discharge..
Venancio Sanes, another baker in Respondent's employ, testified :
Q. Were you at the bakery when Anselmo was discharged?
A. Yes, sir.
Q. Did you overhear the conversation between Don Antonio and Anselmo?
A. Yes, I heard it.
Q. What was said?
A. Well, as he had gone to the home of Mr. Alonso's sister, she being very
nervous, she sent word for him to be suspended from work.
Q. How do you know that?
A. Because Mr. Alonso was at the bakery, and Mr. Alonso said : "My sister
gave orders to suspend you from work."
Q. Don Antonio said that to Anselmo?
A. Yes, sir.
Q. Did you hear what Anselmo said?
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Anselmo asked why that was.
Q. Was anything else said?
A. Nothing else.
The record contains no other evidence bearing upon the reasons stated to
Gutierrez for his discharge.
Respondent claimed at the hearing that the discharge was "for cause" and
alleged a number of grounds . Alonso testified that a "series of circumstances"
led him to discharge Gutierrez.
(a) In the first place, unfaithfulness on the part of laborer Gutierrez. Mr.
Gutierrez went to the Municipal Court of Rio Grande to testify on behalf of
a worker who stole from me at the bakery some bags and a pair of shoes. Mr.
Gutierrez made himself a star witness for that defendant, and through his
false testimony the defendant was acquitted.
The record contains no further reference to this incident. It does not show
when it occurred in relation to the time of the discharge, who the accused em-
ployee was, what the facts were regarding his alleged offense, or what was the
character of Gutierrez' testimony. All that is definitely shown is that Gutierrez
testified adversely to Alonso's desire and that the judge who heard the entire
matter evidently believed Gutierrez. That, on the record, this cannot be regarded
as justification for discharge goes without saying.
(b) Alonso went on,
In the second place, Mr. Gutierrez, as president of the labor union, did
not work efficiently as a worker . . . This man would abandon the bakery
in order to attend to union matters, to the prejudice and detriment of the
processing of bread and crackers. For instance, on various occasions he
omitted to put salt in the crackers. On another occasion, he was not there
to elaborate the bread.
Alonso's testimony that on three or four occasions Gutierrez neglected to put
salt in cracker or bread dough was corroborated-although vaguely and indefi-
nitely-by Carlos Mendez, the bakery's "administrator," and by the baker, Sanes.
Their testimony, like Alonso's in this respect, was so indefinite as to time and
so uncertain as to circumstances as to be wholly unreliable in regard to furnish-
ing cause for the discharge. It is disregarded.
(c) Alonso testified in regard to Gutierrez' visit to his home on Fuentes' behalf,
On that.day, he abandoned his work to go to my home to see me.
But no evidence was introduced to contradict Gutierrez' statement that this
visit was made on his day off. Neither was any attempt made during his cross-
examination to weaken this statement. On the record as a whole, the claim of
abandonment of work is disregarded.
(d) Alonso testified that Gutierrez, on his visit to the Alonso home, behaved
in a "disrespectful manner." Alonso, it will be remembered, was not present
during the visit. His sister was not called as a witness. Neither Gutierrez nor
Fuentes was interrogated concerning the manner of conducting the visit. The
record is wholly silent on this claim of disrespect except for Alonso's bald con-
clusion, not supported by 'corroborative detail and obviously constituting nothing
except mere uncorroborated hearsay. It is disregarded.
Alonso, Mendez, Sanes, and Del Cristo testified regarding offers of rehire
made to Gutierrez after his discharge. The testimony of the first three in
respect of these offers was too vague, indefinite and lacking in detail to be
worthy of credence. That of Del Cristo corresponds with Gutierrez' statement
PANADERIA SUCESION ALONSO 887
of the matter, that he was not offered back his old job on the old terms and
that the claimed offer amounted only to a statement that Respondent would
interpose no objection if the employees divided their work with him "on their
own account." It is found that Respondent did not offer to take Gutierrez back
to his former job.
On the evidence as a whole it is found that the discharge of Gutierrez was
because he went to Alonso's home on Fuentes' behalf. Except for this discharge
there is no evidence upon which a finding of an unfair labor practice can be
predicated.
III. CONCLUSIONS
On the record there are two questions that must be answered before a conclu-
sion can be reached. (a) Is there a sufficient factual basis for establishment of
jurisdiction? (b) Does the discharge of Gutierrez because he was active in
Fuentes' interest constitute an unfair labor practice?
(a) Jurisdiction
What has already been said in description of the character and size of Re-
spondent's business is sufficient to demonstrate that its operation does not have
a direct or substantial relation to commerce among the several States. It Shows,
with almost equal strength, that it does not even materially affect either the
volume or the direction of flow of trade within Puerto Rico. The facts clearly
show that Respondent's business is predominantly local in character. Hence, the
conclusion is inescapable that were it located in one of the States the proceeding
would be dismissed either for want of jurisdiction or because to exercise it
would not effectuate the purposes of the Act.2
Do the lack of size and the local character of the business here involved require
the dismissal of this proceeding arising, as it does, not from a State but from.
Puerto Rico, an "insular possession?"
Section 2 (6) of the Act defines "commerce" as:
trade, traffic, commerce, transportation, or communication among the
several States, or between the District of Columbia or any Territory of the
United States and any State or other Territory, or between any foreign
country and any State, Territory, or the District of Columbia, or within the
District of Columbia or any Territory, or between points in the same State
but through any other State or any Territory or the District of Columbia or
any foreign country!
It has been held that for regulatory purposes the term "Territory" in a statute
may include Puerto Rico. Whether it comes within a given congressional act
depends upon the character and aim of the act.4
Following the amendment of the National Labor Relations Act in 1947, a State-
ment of Policy was entered into by the Board, the General Counsel, and the
Puerto Rico Labor Relations Board 5 This read in part :
Under date of August 10, 1945, the National Labor Relations Board and
the Puerto Rico Labor Relations Board agreed that the Puerto Rico Labor
2 Fred Montgomery, d/b/a Pereira Studio, 83 NLRB 587 (1949) ; H. W. Smith, d/b/a
A-1 Photo Service, 83 NLRB 564 (1949) ; Walter J. Mentzer, 82 NLRB 389 (1949).
2 29 USC, Sec. 152.
4 People of Puerto Rico v. The Shell Company, 302 U. S. 253, 58 S. Ct. 167, 82 L. Ed.
235 (1937) and cases therein cited.
5 12 FR 7902, November 25, 1947.
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Board would act as the agent of the National Labor Relations
Board for enforcement in Puerto Rico of the National Labor Relations
Act...
The recent passage of the Taft-Hartley Act . . . has given rise to serious
administrative and procedural problems which make the continuation of the
agency agreement unfeasible .. .
In terminating the present agency agreement . . . the plenary power of
the Congress . . . over labor disputes and matters affecting representation
arising in the Territory of Puerto Rico is recognized. It is also recognized
that in the Labor-Management Relations Act, 1947, . . . it was the apparent
intent of Congress that State and Territorial agencies designed for the pur-
pose of disposing of matters concerning representation and labor disputes be
encouraged to continue in their assigned functions over matters purely local
in character.
*
For the present, under the administrative discretion vested in the National
Labor Relations Board and the General Counsel, it is the opinion of the
Board and General Counsel that the full exercise of plenary jurisdiction
over all matters concerning representation and labor disputes in the Terri-
tory of Puerto Rico, especially those involving enterprises purely local in
their operation is not administratively feasible or desirable.
* * * * * * *
It is appropriate, therefore, for the Puerto Rico Labor Relations Board to
proceed on the basis of this statement concerning all cases arising in the
enterprises listed above or others of similar character until the assertion of
jurisdiction by the National Labor Relations Board or the General Counsel
or until this statement is modified.
* * * * * * *
Following the publication of this statement, the workers in a number of busi-
nesses local in character took their problems to the Insular Board. It accepted
jurisdiction and instituted proceedings e
Early in 1948, a representation case arose involving a Puerto Rican taxicab
company. The General Counsel advised the Regional Office that it should be
processed. When the Insular Board was informed of this assertion of jurisdiction
it dismissed its pending proceedings in a number of cases and notified the Island's
labor unions to file petitions or charges involving even wholly local enterprises
with the National Board.
Thereafter the charge in the instant case was filed . The General Counsel
entertained it and asserted jurisdiction. This and two companion cases 8-also
involving small bakeries-are the first to arise since the amendment of the Act
in 1947, the first since the publication of the quoted statement, and the first since
the 1947 amendment of the Organic Act of Puerto Rico which purported to give
that island a larger measure of autonomy and to assist insular agencies to assume
increasing responsibility in civil administration.9
Before 1947, a number of cases arose involving industries in Puerto Rico.
Search has disclosed no decision by the courts or by the Board in which juris-
E The record does not clearly show whether the instant case was among those so accepted.
7 Capitulo de Choferes de San Juan, Case No. 38-CB-2.
8 Carmelo Quetel, d/b/a Panaderia. "La Esperanza", 38-CA-18 ; Jose Garcia Donis,
d/b/a Panaderia "La Reguladora", 88 NLRB 347.
D 61 Stat. 770 at seq.
PANADERIA SUCESION ALONSO 889
diction under the National Labor Relations Act over a predominantly local
Puerto Rican business has been determined.
In Ronrico Corporation 10 the Board specifically based its holding of jurisdic-
tion upon the finding of substantial commerce between Puerto Rico and points
in continental United States and foreign countries. In the decision, the Board
stated that because of this it was unnecessary to decide whether the Act gave
jurisdiction upon the ground that the respondent was engaged in commerce
"within a Territory."
In The Texas Company 11 the trial examiner based his finding of jurisdiction
upon the fact that the respondent received the bulk of its petroleum products
from foreign countries and shipped one-third of its output in foreign and inter-
state commerce. The Board adopted the examiner's findings with no comment
regarding jurisdiction except a footnote reading,
Respondent contends that the Board does not have jurisdiction in the
instant case, inasmuch as the Act has no application to Puerto Rico since
Puerto Rico is not a "territory" and is not within the coverage of Section
2 (6) of the Act defining commerce. For reasons stated in Matter of Ronrico
Corporation, 53 NLRB 1137, we find no merit in this connection.
In Chase National Bank of New York, San Juan, Puerto Rico, Branch," the
trial examiner spelled out in detail the substantial and direct effect of respond-
ent's business activities upon interstate and foreign commerce and based his
finding of jurisdiction upon that effect. Having done this, he added the sentence,
Moreover, Section 2 (6) of the Act confers jurisdiction on the Board
over an employer whose business is confined exclusively "within the District
of Columbia or any Territory of the United States."
The Board adopted the findings of the trial examiner without discussion of
the question of jurisdiction.
In The Royal Bank of Canada, San Juan Branch,'0 the facts showing the direct
and substantial effect of respondent's business activities upon interstate and
foreign commerce were set forth in detail. The Board held that jurisdiction
existed for the reasons set forth in the Ronrico and Chase National Bank
decisions.
In Gonzales Padin Company, Inc.,` the trial examiner spelled out the juris-
diction by finding in detail the facts making clear the direct and substantial
effect of respondent's business activities upon interstate commerce. He omitted
all reference to the question of jurisdiction over commerce "within a territory"
except for a footnote reading,
It is considered unnecessary, as the Board considered it unnecessary
in the Ronrico case, to decide whether Congress intended to include within
the scope of the Act, commerce within Puerto Rico as well as that between
Puerto Rico and outside points.
The Board adopted the trial examiner's findings and conclusions but went on
to say,
The Trial Examiner considered it unnecessary to determine whether
commerce within Puerto Rico as well as that between Puerto Rico and
outside points is within the scope of the Act, since he found that the Re-
10 53 NLRB 1137 (1943).
60 NLRB 424 (1945).
12 62 NLRB 656 ( 1945).
13 67 NLRB 403 (1946).
l4 68 NLRB 520 (1946).
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent's operations affected commerce between Puerto Rico and the United
States. We think it clear that commerce within Puerto Rico is included in
the scope of the Act and accordingly, even if the Respondent's imports from
the United States be, ignored, jurisdiction is well founded.
In a proceeding brought to enforce the Board's decision in this case,16 the
Court said,
The respondent contends that although it imported large quantities of
merchandise from the United States, that merchandise was acquired only for
local retailing and, therefore, lost its "interstate character" upon arrival
at its stores. 'Hence, it says, its business was entirely local in nature and
did not bring it within the jurisdiction of the Board. We do not agree.
We think that even laying the respondent's imports from the United States
to one side, as the Board did, nevertheless the Board's jurisdiction over the
respondent is well founded.
It is established by several decisions of the Supreme Court and this
Circuit Court of Appeals that Puerto Rico is a completely organized terri-
tory, although not one incorporated into the United States, and that as such
the power of Congress to legislate respecting it is plenary, subject only to
such constitutional restrictions as apply to the situation, none of which
concern us here. . . . Thus Congress can constitutionally regulate purely
intra-territorial commerce. And we think there can be no doubt that Con-
gress must have intended to exercise this power when, in Section 10 (a) of
the National Labor Relations Act, it gave the Board authority to prevent
any person from engaging in any unfair labor practice affecting commerce
and in Section 2 (6) of the Act defined commerce to include "trade .. .
within . . . any Territory."
The anomaly of the situation created by the quoted dicta of trial examiners,
the Board and the Court in these Puerto Rico cases when considered in con-
junction with the cited recent Board decisions in regard to predominantly local
businesses in continental United States hardly needs to be pointed out. The
Board does not act in local affairs in the States ; nearby, with a common lan-
guae, with a generally predominant industrial economy, with a generally liter-
ate and educated body of labor developed by experience to a sense of respon-
sibility, with managements generally equipped by experience to deal with labor
of that character, with a common sociological and legal background, and with
a law drafted to meet conditions existing in continental United States. But
in Puerto Rico, according to these dicta, the Board will act in affairs wholly
local in character which cannot affect commerce outside the island. And this
is in spite of the facts that Puerto Rico is separated from the States by over
a thousand miles of ocean, has a different language, has a predominantly agri-
cultural economy, has a body of labor largely illiterate and even more largely
uneducated, in general not developed to a sense of responsibility, has manage-
ments generally experienced in dealing only with uneducated and irresponsible
labor and in dealing with it upon only a paternalistic basis, has an entirely
different sociological and legal background, and in spite of the fact that the
Act was drafted without regard to its applicability to Puerto Rico 36
From the viewpoint of legal theory as well as from that of the practicalities
the anomaly is as great. Puerto Rico is not a territory but a "possession."
15N. L. R. B. v. Gonzales Padin Company, Inc., 161 F. 2d 353. (C. A. 1-1947).
16 The legislative history of both the Wagner Act and the Taft-Hartley Law shows that
there was no discussion of Puerto Rican problems or conditions.
PANADERIA SUCESION ALONSO 891;
However, it may be regarded as included in the statutory term "Territory",
because it has powers of local autonomy 1° And because it has these, so far as
labor relations are concerned, it is within the orbit of national control even as
to matters of predominantly local character, to the negation of that autonomy.
The Board decisions from Alaska and Hawaii throw no light. All seem to
have arisen from businesses which were of direct and substantial effect on
interstate commerce.18
Nor are those from the District of Columbia of great value here. Most of
them involve interstate commerce and show that jurisidiction was based upon
that fact.'9 In a few the decisions state that jurisdiction is based upon the
fact that "respondent is engaged in trade within the District of Columbia" but
examination makes it clear they, in fact, largely rest upon actual interstate
commerce connection." And although in another group of cases jurisdiction
rests squarely upon the fact of commerce "within the District" 21 the underlying
differences of fundamental fact between Washington, D. C., and a distant ter-
ritory with an autonomous government weaken their effect to compel a finding
of jurisdiction over a Puerto Rican business enterprise of predominantly local
character.
It must be conceded that the present Puerto Rican statute governing labor-
management relations is such as to prevent the Board from ceding to the
Insular Board in accordance with Section 10 (a) of the Act its Puerto Rican
jurisidiction. But the question is not one of cession of a possessed power.
Rather it is one of the possession of that power. Does the Board have juris-
diction over purely local enterprises merely because they are being carried on
in Puerto Rico rather than in one of the 48 States? Is the phrase "within any
Territory" to be read as though it stood alone, and thus to take from the in-
sular government and vest in the Board jurisdiction over all labor disputes,
no matter how local in character and how trivial? Of is the phrase
to be read in conjunction with the stated policy of the Act, with jurisdiction
limited to such matters as may truly tend to interrupt the flow of commerce
or to burden commerce of more than local concern? Is the intent of Congress
to be gleaned from that phrase alone or is it to be construed in connection with
the Organic Act of Puerto Rico 22 which the same Congress that enacted the
Taft-Hartley Law amended to reflect "the policy of the United States to encour-
age the people in the Territories to increasingly participate in their local gov-
ernments" and "as a demonstration . . . that the United States practices as
well as preaches the doctrines of democracy and self-determination" :23
These questions cannot be answered by a Trial Examiner as though they
were of first impression. The Board has stated administratively, in the pub-
lished Statement of Policy above quoted, that it has jurisdiction over all Puerto
Rican labor relations. It has stated, repeatedly and recently, in the cited cases,
17 People of Puerto Rico v. The Shell Company, supra.
18Alaska Juneau Gold Mining Company, 2 NLRB 125 (1936) ; McCabe, Hamilton h
Rennny, Ltd., 3 NLRB 547 (1937) ; United States Smelting, Refining and Mining Company,
27 NLRB 383 (1940).
19Nolan Motor Company; Inc., 2 NLRB 357 (1936) ; Washington Branch of the Sun
Life Insurance Company of America, 15 NLRB 817 (1939) ; Home Beneficial Association,
17 NLRB 1.027 (1939).
29 Willard, Inc., 2 NLRB 1094 (1937).
21 Club Troika, Inc., 2 NLRB 90 (1936) ; Westchester Apartments, Inc., 17 NLRB 433
(1939) ; Rutland Court Owners, Inc., 44 NLRB 587 (1942).
22 48 USC See. 731 et seq.
23 Both quotations are from the I-louse Committee Report recommending the amendment
of the Organic Act of Puerto Rico, House Report No. 455, May 26, 1947.
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that its sphere of action includes all trade within Puerto Rico. And its dicta
to this effect has been approved by the Court of Appeals. By these, I am con-
strained to find that jurisdiction is present in the case at bar.
(b) Unfair labor practices
Agricultural workers are not employees within the meaning of the Act.
Unions of agricultural laborers are specifically withdrawn from the protection
of the Act and the aid of the agencies created by it.25 Hence, it must follow that
acts done by Gutierrez in his capacity of president of an agricultural workers'
union, acts done by him in furtherance of that union's interest, acts done by
him in furtherance of the interest of Fuentes, not an employee of the bakery,
an agricultural laborer and a member of the agricultural workers' union with
which Gutierrez was affiliated, are not within the direct protection of the Act.
Of course, it may be true that an act done directly in furtherance of the
interest of a nonprotected group may be indirectly in the interest of a pro-
tected right of collective employee action and, hence, come within the Act's
operation.
That was the situation in Peter Cailler Kohler Swiss Chocolates, Inc., 28 of
which the Court of Appeals granted enforcement.21
That case arose from the discharge of one Whipple. His discharge was
motivated by his calling a union meeting, at which he sponsored and caused the
adoption of a resolution expressing solidarity with an organization of small milk
producers known as the Dairy Farmers' Union which was then in conflict with
another milk producers' organization. Whipple's employer had adopted a policy
favoring this rival organization.
The Court held that so far as the resolution was a "concerted activity" for the
"mutual aid and protection" of the protected members of Whipple's union and
the nonprotected members of the dairy farmers' organization the Act did not
cover it. But it held that the meeting and the adoption of the resolution were
collective activity and that insofar as they may have been intended for the
common benefit of the employees of the respondent although by the indirect
method of seeking the future support of the members of the favored dairy
organization, they were protected under the Act.
In the case at bar there was no concerted activity on the part of Respondent's
employees. Gutierrez was the only actor. (Fuentes was not an employee of
the bakery. Since he was an agricultural worker, he cannot be regarded as an
employee within the meaning of the Act.) The term "concerted activity" implies
group, not individual action.28
Nor can it be held that Gutierrez' act of going to Alonso's home was in further-
ance of any concerted aetivitS or any collective right of the bakery's employees.
He went solely to intercede for Fuentes who was without the Act. Hence, an
act done for him or for the "mutual aid and protection" of him and the bakery
employees would be beyond the Act's protection.
Nor is the position tenable that Gutierrez' support of Fuentes was indirectly
for the benefit of the bakery workers by making friends for their union, as in
the Chocolate Company case. The essence of that decision was that the action
24 29 USC Sec, 152 (3).
21 Title III, Act of June 14, 1948, Public Law 639, 80th Congress, 2d Sess.'
21) 33 NLRB 1170 (1941).
27 N. L. R. B. v. Peter Cailler Kohler Swiss Chocolates Company, Inc., 130 F. 2d 503
(C. A. 2, 1942).
2$ Earl C. Gould and John C. Preisner, 82 NLRB 1195 (1949).
PANADERIA SUGESION ALONSO 893
involved was collective in character for the benefit of a group whose collective
support might be attracted to the acting union. Here there was no group action
and no group support in prospect. Both the subject and the predicate of the act
were in the singular. There is no basis for a finding that Gutierrez' visit to
Alonso's home was in any sense a "concerted act" or that it was, directly or
indirectly, for the benefit of the employees of the bakery.
To discharge Gutierrez from his job at the bakery because he went to Alonso's
home to intercede for Fuentes as a farm worker may have been a social and a
moral wrong but it cannot be found to constitute an unfair labor practice under
the Act.
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following :
CONCLUSIONS OF LAW
1. Ursula Cervantes, Ernesto Alonso, Estrella Ursula Alonso and Antonio
Alonso, doing business as Panaderia Sucesion Alonso, are engaged in commerce
within the meaning of Section 2 (6) of the Act.
2. Respondent by discharging Anselmo Gutierrez did not commit or engage
in an unfair labor practice within the meaning of the Act.
3. The evidence is insufficient to support a holding that Respondent committed
or engaged in an unfair labor practice within the meaning of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, I recom-
mend that the complaint be dismissed in its entirety.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board, any party may, within twenty (20) days from the date
of service of the order transferring the case to the Board, pursuant to Section
203.45 of said Rules and Regulations, file with the Board, Washington 25, D. C.,
an original and six copies of a statement in writing setting forth such exceptions
to the Intermediate Report or to any other part of the record or proceeding
(including rulings upon all motions or objections) as he relies upon, together
with the original and six copies of a brief in support thereof; and any party
may, within the same period, file an original and six copies of a brief in support
of the Intermediate Report. Immediately upon the filing of such statement of
exceptions and/or briefs, the party filing the same shall serve a copy thereof
upon each of the other parties. -,Statements of exceptions and briefs shall desig-
nate by precise citation the portions of the record relied upon and shall be legibly
printed or mimeographed, and if mimeographed shall be double spaced. Proof of
service on the other parties of all papers filed with the Board shall be promptly
made as required by Section 203.85. As further provided in said Section 203.4G
should any party desire permission to argue orally before the Board, request
therefor must be made in writing to the Board within ten (10) days from the
date of service of the order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall as provided in Section 203.48 of said Rules
and Regulations, be adopted by the Board and become its findings, conclusions,
,and order, and all objections thereto shall be deemed waived for all purposes.
Dated at Washington, D. C., this 31st day of May 1949.
MERRITT A. VICKERY,
Trial Examiner-