Porto Rico Container Corp.

National Labor Relations Board - Board Decisions

May 25, 1950

89 N.L.R.B. 1570 (N.L.R.B. 1950)

In the Matter Of PORTO RICO CONTAINER CORPORATION and UNION DE
OPERARIOS DE FABRICA DE ENVASES DE CARTON DE PORTO RICO CON-
TAINER CORPORATION, AFILIADA A LA CONFEDERACION GENERAL DE
TRABAJADORES DE PUERTO Rico
Case No. 38-CA-l.-Decided May 25,1950
DECISION
AND
ORDER
On August 26, 1949, Trial Examiner Merritt A. Vickery issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found
that the Respondent had not engaged in certain other unfair labor
practices as alleged in the complaint, and recommended that these
particular allegations in the complaint be dismissed.'
Thereafter , the Respondent and the General Counsel each filed ex-
ceptions to the Intermediate Report with a supporting brief.2 The
Respondent also requested oral argument . This request is hereby
denied, inasmuch as the record, exceptions, and briefs, in our opinion,
adequately present the issues and the positions of the parties.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
2 These allegations are that the Respondent discriminatorily suspended Paula Adorno
and Luis Torres on March 20 , 1.947, and Enrique Ortiz, Virgilio Ortiz, and Concepcion
Rosa, on March 21 , 1947 ; and that it unlawfully discharged Rafael Rivera Mendoza on
March 18, 1947 , Enrique Ortiz and Luis Torres on March 25, 1947 , and Carlos Munos
Rivera on February 26, 1949 . No exceptions were filed to these recommendations, and
we shall adopt them.
2 The General Counsel also submitted a copy of his brief previously filed with the Trial
Examiner. The Respondent argues that this brief should not be considered by the Board
because it deals with matters not related to the exceptions filed by the General Counsel. We
do not agree with the Respondent . The brief became part of the record when it was filed
with the Trial Examiner.
89 NLRB No. 205.
1570
PORTO RICO CONTAINER CORPORATION 1571
rulings are hereby affirmed.3 The Board has considered the Inter-
mediate Report, the exceptions and briefs filed by the Respondent
and the General Counsel, and the entire record in the case, and hereby
adopts those findings, conclusions, and recommendations made by the
Trial Examiner that are consistent with our findings,' conclusions,
and order hereinafter set forth.
1. The Trial Examiner found that the Respondent interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed them in Section 7 of the Act. We agree with this con-
clusion. However, we limit the grounds for our finding to (a) Plant
Manager Santos Zubillaga's interrogation of nonstriking employees
as to whether the Union represented them,' and (b) the Respondent's
conduct in deducting from the pay of the striking employees the full
amount of their respective loans while continuing its usual practice
of making partial deductions of loans from the pay of nonstriking
employees.6
3 The Respondent at the hearing and in its brief moved to dismiss the complaint on the
grounds that (1) it was not validly issued under Section 10 (b) of the amended Act,
because it alleged as violations (a) acts occurring more than 6 months prior to the time
of the filing of the charge, and (h) independent S (a) (1) conduct which is not claimed
by the charge to be violative of the Act; and (2) it does not allege, and the evidence does
not prove, the Union's compliance with Section 9 (f), (g), and (h).
we find no merit in the Respondent's contentions. Thus, as to the first ground, it
appears that the charge, which relates to matters occurring early in 1947, was filed and
served within 6 months after the effective date of the amendments to the Act. Cat hey
Lumber Company, 86 NLRB 157, and Itasca Cotton Manufacturing Company, 79 NLRB
1442, enfd. 179 F. 2d 504 (C. A. 5), make it clear that, in these circumstances, the coin-
plaint may properly reach any violations committed under the original Act, eveh though
they were not mentioned in the charge and occurred more than 6 months before the service
of the charge. The Trial Examiner's ruling that only those items related to matters in
the charge could be alleged in the complaint is therefore incorrect and must be rejected.
With respect to the second ground urged, it is well established that compliance is a matter
for administrative determination and is not an issue litigable by the parties. The Ann
Arbor Press, 85 NLRB 58. Moreover, it administratively appears that the Union was in
compliance when the complaint issued. The motion to dismiss is accordingly denied in its
entirety.
4 The Intermediate Report contains certain misstatements of fact and inadvertences.
Accordingly, we note the following corrections : (a) The commerce data with respect to
the Respondent' s sales which is shown by the Intermediate Report to be for the period
February 1947 to January 1948, pertains in fact to the period February 1946 to January
1947 ; (b) Jose H. Rodriguez is not a complainant in this case, as the Trial Examiner
suggests at one point in the Intermediate Report ; and (c ) Eugenio Medina was assaulted
and stabbed on May 16, 1947, and not April 22, 1947, as the Trial Examiner finds.
5 The Royal Bank of Canada (San Juan Branch), 67 NLRB 403; C. Pappas Company,
Inc., 82 NLRB 765.
c Members Reynolds and Murdock would not find the Respondent's conduct in de-
ducting from the strikers' pay the full amount of their unpaid loans was violative of
Section 8 (a) (1) of the Act. In the past, the Respondent customarily deducted the entire
amount of any outstanding loans in cases of discharge or of suspensions until further
notice. It is apparent that the Respondent regarded the earned wages of its employees
as the primary security for such loans. When the earnings of the strikers were stopped
by the strike and the Respondent had no basis for knowing when the strikers would resume
work, or indeed, whether some might obtain other employment and never return,
it safeguarded the principal of its loans in the same manner as it had done in the
889227-51-vol. 89 100
1572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The loans, mentioned above; were made by the striking employees
in accordance with the customary practice at the plant of obtaining
advances against wages. Under this scheme of wage payments, em-
ployees made loans from the Respondent itself, or from the bank
upon the Respondent's guarantee of repayment, and were allowed to
repay such loans by way of small weekly or monthly deductions taken
from their pay. The record indicates that prior to the strike which
began at the Respondent's plant on March 21, 1947, the full amount
of unpaid loans was deducted only in cases of discharge or of suspen-
sions until further notice. However, on the first day of the strike,
a pay day, Zubillaga ordered that each striker be docked for the full
amount of his loan balance. Where this amount exceeded his pay,
he received nothing. On the other hand, those who did not join
the strike had only the usual deductions taken from their pay. These
facts, including Zubillaga's hostility toward the strikers, as demon-
strated by his statements at the bargaining conference earlier that
day that the employees who had walked out had forfeited their jobs,
and the timing of his move against them, convince us, as they did the
Trial Examiner, that the Respondent discriminatorily altered a con-
dition of the strikers' employment in retaliation for their striking.?
2. The Trial Examiner found that the Respondent dominated the
formation and administration of Association Unica, herein called the
Independent,' in violation of Section 8 (a) (2) of the Act. We do
not agree.
The Trial Examiner's ultimate finding is based largely on the fol-
lowing considerations : (a) The Independent was organized shortly
after the Respondent suspended operations during the strike called by
the Union following the Respondent's rejection of its request for bar-
gaining, and was "allowed to lapse into desuetude" after the Respond-
ent resumed operations; (b) the president of the Independent was a
brother-in-law of the plant's assistant manager, and its secretary had
a desk in the office of Zubillaga and the assistant manager; and (c)
past in cases of others who no longer earned wages. In the opinion of Members Reynolds
and Murdock, the Respondent took reasonable business precaution in acting as it did.
Moreover, they do not believe that the fact that the Respondent made the deductions on
the first day of the strike, which was a pay day, evidence discriminatory motivation. On
the contrary, in their view the timing of the Respondent's action was consistent with its
intention to effectively protect its financial interests. Under the circumstances, Members
Reynolds and Murdock believe that an employer should not be required to refrain, under
penalty of being found guilty of an unfair labor practice, from engaging in a course of
action which any reasonable business man could be expected to take.
' We regard Zubillaga's statement that this was done "because I didn't know what
would happen and I had to report the accounts to the Board of Directors in case of the
factory being closed, so my intention was to save all the advances I had made previously"
as mere rationalization in retrospect of action illegally motivated:
8 Although the Independent was not named as a party in the caption of the formal
papers in this case, it was in all material respects treated as a party to the proceeding.
Contrary to the Trial Examiner, it was served with copies of the charge, the complaint,
the notice of hearing , and the other formal documents.
PORTO RICO CONTAINER CORPORATION 1573
the president and secretary of the Independent were close friends of
Zubillaga and would not "act in opposition" to him, or "against his
wishes."
We are of the opinion that the afore-mentioned circumstances, how-
ever suspect they may be, fall short of establishing such a link between
the Respondent and the Independent as would support the Trial
Examiner's ultimate finding. The Trial Examiner found that Fran-
cisco Rosado and Avelino Barreto, the Independent's president and
secretary, respectively, were not supervisors for whose conduct the
Respondent was responsible. And the evidence does not warrant a
finding that the Respondent's employees had just cause to believe that
they were representatives of management. Moreover, the Respondent
has never accorded recognition to the Independent as the bargaining
representative of its employees. And the record does not establish that
the Respondent rendered assistance to the Independent in any other
way or that it participated in the formation or conduct of the Inde-
pendent's affairs. In view of the foregoing evidence, and upon this
state of the record., we find that there is insufficient evidence to warrant
a finding that the Respondent dominated the Independent, or that it
interfered with or supported that organization. Accordingly, we
shall dismiss the complaint insofar as it alleges a violation of. Section
8 (a) (2) of the Act.
3. We do not agree with the Trial Examiner's finding that the
Respondent violated Section 8 (a) (5) of the Act on and after March
25, 1947.
Our disagreement stems from our inability to find that the evidence
establishes that the Union enjoyed a majority status among the em-
ployees in the appropriate unit during the critical period. Accord-
ing to the Trial Examiner, the unit was then composed of 125 em-
ployees, with the Union representing 68 of the employees therein.a
His findings are, however, subject to modification in at least the fol-
lowing respects :
(a) The Trial Examiner omitted from his calculations five em-
ployees who continued working during the period of the strike called
by the Union, and who did not indicate in any objective manner their
adherence to the Union. We are of the opinion that these individuals
must be added to the number of employees found by the Trial Ex-
aminer to comprise the appropriate unit, and, further, that they must
be counted against the Union.
' Two of the persons included in the unit and counted by the Trial Examiner as prounion
are Altagracia Moralos, and Zonon Lopez, who, the Respondent contends , were supervisors,
As it is clear that the inclusion of these two individuals in the unit cannot affect our ultimate
finding, we shall, for the purpose of facilitating our task of pointing out our area of dis-
agreement with the Trial Examiner , accept the Trial Examiner 's findings in this connection.
However, this is not to be taken to mean 'that we have resolved the question of the precise
status of these persons during the period in question.
1574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) The Trial Examiner excluded from the unit four individuals
who were not working during the period material herein because they
were sick," and two persons who were away from work at the time
because they had been temporarily suspended for a specified period 11
It appears that each one in the group of four was regarded by the
Respondent as an employee during his or her absence, and that two
of them returned to work not long after the plant, which was shut
down on March 25, 1947, the date of the alleged refusal to bargain,
reopened on May 16, 1947. The two persons under suspension were
also considered by the Respondent to be employees during the period
of their suspension, and they too returned to their jobs when work
was again available at the plant following the shutdown, at a time
when their period of suspension was over. As in the cases of the
other five employees, there is uo evidence in the record to show that
the employees under discussion had designated the Union to act for
them. In the circumstances, we find that these employees must also
be included in the unit, and counted against the Union.
(c) It also appears that the Trial Examiner has counted as union
adherents at least two employees 12 who, during the critical period,
did not engage in any activity evincing a desire for representation
by the Union. The mere fact that these employees, for reasons not
disclosed by the record, did not work during the 3 days before the
plant shutdown does not warrant a finding that they thereby desig-
nated the Union to act as their bargaining representative. Contrary
to the Trial Examiner, therefore, we find that these employees must
be counted against the Union.
In addition, the Trial Examiner has found, and we agree, that there
are 56 other employees in the unit who never voluntarily authorized
the Union to act as their bargaining agent.13 We find, therefore, as
did the Trial Examiner, that these employees cannot be counted toward
a union majority. When the 11 individuals not counted by the Trial
Examiner are added to the 125 employees found by him to comprise
the appropriate unit, and when these employees plus the 2 erroneously
counted as union adherents are added to the 56 employees just referred
to, it appears that the appropriate unit was composed of 136 em-
ployees during the period in question, and that the union adherents
30 Felicita Hernandez, Aurea Rexach, Jose L. Figueroa, and Carmen Monclova.
" Santos Ramirez and Rafael Rodas.
13 Domitila Matta and Angelina Torres.
13 Included in this group are Rosado and Barreto, who are shown by the record to have
been rank-and-file employees during the critical period, with duties closely allied to those
of the other employees in the unit. Although the Trial Examiner has counted another
employee, Narcisa Arias, as being against the Union, it is clear from the Intermediate
Report that this was an inadvertence and that he actually intended to count Arias as a union
adherent. We have accordingly counted her among the union adherents.
PORTO RICO CONTAINER CORPORATION 1575
therein could not have exceeded 67 in number. This is not a majority
of the employees in the unit.
In view of the foregoing, and upon the whole record, we are not
persuaded that the Union at any time material herein represented a
majority of the Respondent's employees in the appropriate unit 14 We
shall accordingly dismiss the 8 (a) (5) allegation in the complaint.
4. The Trial Examiner found that the Respondent had unlawfully
discharged 24 employees. The Respondent excepts thereto.
The Respondent's plant was struck, and a picket line established
by the Union, on March 21, 1947. On March 25, 1947, the Respondent
shut down the plant and did not reopen it until May 16, 1947. Shortly
after the plant resumed operations the picketing was discontinued, but
the strike continued, and there is testimony in the record which in-
dicates that it was current at the time of the hearing. All 24 com-
plainants participated in the strike, which was attended by various
altercations between striking employees and others. All were dis-
charged during the first 5 weeks of the strike. The Respondent claims
that it discharged all 24 complainants, except Angel Garcia and Can-
dida Lopez, because its investigation of the strike altercations re-
vealed misconduct on the part of each dischargee which warranted
his discharge.15 It admits that Angel Garcia and Candida Lopez did
not engage in any such activity, but contends that they were discharged
by mistake.
As appears from the Intermediate Report, the Trial Examiner
found that Virgilio Ortiz, as well as Angel Garcia and Candida Lopez,
was not guilty of any misconduct prior to his discharge. With respect
to the remaining complainants, he concluded that the acts of violence
attributed to them Were of a character which did not justify the dis-
ciplinary action taken against them by the Respondent." We agree
14111 view of this finding, we need not pass on any of the rationale set forth by the Trial
Examiner for finding a violation of Section 8 (a) (5).
15 in addition to the reasons mentioned in the Intermediate Report, the Respondent also
contends that the discharges were justifi ed because (1) the complainants were illegal
strikers, without any employee status at the time of their discharge since the strike
was called as a result of suspensions which were lawfully made, and continued thereafter
because the Respondent refused to bargain, as it had it right to, with it labor organization
which did not represent a majority of its employees, and (2) the asserted misconduct
of the employees was violative of a plant rule in effect at the time. We find no merit
in these contentions. The fact that the strike was not the result of unfair labor practices
by the Respondent does not make it an illegal one, as the Respondent in effect contends.
Cf. Ka.llaher and Nev. Inc., 87 NLRB 41.0. As to the alleged violation of the plant rule,
it is significant that neither in its answer nor in the discharge letters to the complainants
does the Respondent assert this as a reason for the discharges . Besides , the rule appears to
be aimed at a situation not present in this case , viz, an attack within the plant or plant area
by one employee upon another with knives or other cutting tools used in their daily duties.
It is clear, therefore, that the Respondent was not in fact influenced by the alleged
violations of the plant rule in effecting the discharges herein.
10 The Trial Examiner therefore found it unnecessary to set forth the evidence hearing
on all the claimed acts of violence or to resolve the questions of credibility involved. To
the extent that the evidence omitted from the Intermediate Report is necessary to our
disposition of the case, it is set forth hereinafter, together with the appropriate credibility
findings.
1576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the Trial Examiner's findings only with respect to the three last
mentioned employees and as to Felix Diaz Castro, Carlos Rodriguez,
and Carlos Rivera.17 We base this finding upon the fact that the
Respondent has failed to establish affirmatively with respect to these
six employees that they had engaged, in the course of their concerted
activity, in "violence," the reason assigned for the termination of
each one in his or her letter of discharge.18
As to the remaining 18, we find, contrary to the Trial Examiner,
that the record establishes that in the course of their concerted activity
they engaged in conduct which justified their discharges.19
With respect to the six whose discharges were violative of the Act,
we note the following :
So far as Felix Diaz Castro and Carlos Rodriguez are concerned,
it is significant that the Respondent in its brief and exceptions fails
to point to a single act of misconduct on the part of either one. As
to Rodriguez, Rosalina Velez, one of the nonstrikers, testified that
he threw stones at other nonstrikers and "threatened me with the
rocks too." However, in the face of Rodriguez' denial that he acted
improperly towards nonstriking employees, and particularly because
of the incredible nature of Velez' testimony generally, and the fact
that the Trial Examiner has otherwise discredited her, we are not sat-
isfied that the weight of the evidence establishes that Rodriguez en-
gaged in the misconduct testified to by Velez.
Similarly, we are not persuaded that the record supports the Re-
spondent's contention that Virgilio Ortiz threw stones at a group of
nonstriking employees on their way to work. The evidence adduced
at the hearing shows merely that Ortiz was present on the occasion
when stones were hurled at nonstrikers. But no witness testified that
he actually saw Ortiz engage in rock throwing at the time. We regard
as noteworthy in this connection the Respondent's attempt to bolster
its case against Ortiz by asserting for the first time in its brief filed
with the Trial Examiner that Ortiz' discharge was also motivated by
the fact that, when the strike began on March 21, Ortiz attempted to
1' Castro, Rodriguez, Garcia, and Rivera were discharged on March 25, 1947; Lopez on
March 27, 1947 ; and Ortiz on April 1, 1947.
58 Although the Respondent may have entertained a belief in certain instances that a
particular dischargee conducted himself while on strike in a manner which would justify
his discharge, such belief is of no avail to the Respondelit. In this connection, see Mid-
Continent Petroleum Corporation, 54 NLRB 912, in which we held that "Once it is pleaded
that the discharge was made for unlawful conduct inseparably connected with the strike,
the burden was on the respondents to show that all the striking employees discharged
11therefor had, in fact, been guilty of unlawful conduct. . . .
19 These employees and the dates of their alleged discriminatory discharges are :
Ezequiel Cepeda , Jose Rivera de Leon, Francisco Fernandez , Erasmo Garcia , Fernando
Garcia, Ramon Garcia , Roberto Garcia , Sera&n Garcia , Samuel Hurtado , Benjamin Lopez,
Zenon Lopez, and Daniel Vasquez, on March 25, 1947; Juana Colon, Altagracia Morales,
Sara Rivera, Concepcion Rosa, and Ramona Tivent, on March 27, 1947 ; and Paula Adorno ;
on April 22, 1947.
PORTO RICO CONTAINER CORPORATION 1577
induce employees to leave the plant by cries of "fire" therein. We
adopt the Trial Examiner's finding in effect, that Virgilio Ortiz did
not shout "fire" in order to induce employees to leave.
Nor do we find support in the record for the claim by Respondent
that Carlos Rivera destroyed its property; attacked with stones a
group of nonstriking employees; and assaulted with his fists non-
striker Pio Gonzalez. Those who witnessed the incidents involving
destruction of the Respondent's property and rock throwing at non-
strikers did not impute responsibility therefor to Rivera. And the
record evidence including the testimony by Zubillaga and supervisors
Manuel and Edmundo Carmona, to which the Respondent attaches so
much weight, does not establish to our satisfaction that Rivera attacked
Pio Gonzalez, a fact denied by Rivera. Zubillaga's testimony regard-
ing the incident was too uncertain to support such a finding. He
testified at first that Rivera struck-the first blow in the fight with Pio
Gonzalez, and thereafter, contrary to Gonzalez' testimony, that "Pio
was the first to hit the other one." Manuel Carmona admitted frankly
that he did not witness the start of the fight between Rivera and
Gonzalez. And as Edmundo Carmona's testimony that other com-
plainants engaged in various assaults was not credited by the Trial
Examiner, we see no reason for according probative weight to his
accusations against Rivera. Nor are we able to accept the testimony
by Castor Cruz and Jorge Vasquez in this connection. Cruz' veracity
was openly questioned by the Trial Examiner at the hearing. Vas-
quez, called to the stand by the General Counsel, was characterized by
the Trial Examiner as a hostile witness and gave testimony at the
hearing which was conflicting and also contradictory of statements
contained in an affidavit signed by him prior to the hearing.20
Finally, in the cases of Angel Garcia and Candida Lopez, the Re-
spondent admits that they "did not do anything to be fired." How-
ever, it contends in effect that their discharge letters were the result
of a clerical error by an office employee who confused them with other
complainants bearing identical surnames, to whom she was told to
send discharge letters. We are not persuaded by this explanation.
For the record shows that (a) Candida Lopez was discharged by letter
dated March 27, 1947, whereas all the other complainants named
"Lopez" were discharged by letter dated March 25, 1947; (b) Zubil-
laga., who ordered the terminations, signed the letters of discharge to
each of the employees in question; (c) when Garcia and Lopez were
offered reinstatement, no mention was made of the asserted fact that
"As a result of their encounter, Rivera and Gonzalez were arrested and charged in a
local Puerto Rican court with breaching the peace by engaging in a fight. Rivera was
acquitted ; Gonzalez was convicted and fined.,
1578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they had been mistakenly discharged; 21 and (d) the Respondent did
not claim that Garcia and Lopez had been discharged because of a
clerical error until the hearing was under way. Even in its answer,
which was filed at the opening of the hearing, the Respondent stated,
as it did in the discharge letters to them, that Garcia and Lopez had
been discharged for violence. These facts make it clear that, although
Angel Garcia and Candida Lopez admittedly did not engage in mis-
conduct in the course of their strike activity, they were deliberately
discharged by the Respondent on the ground that they had done so.
In view of the foregoing, and upon the entire record, we conclude
that Felix Diaz Castro, Carlos Rodriguez, Virgilio Ortiz, Carlos
Rivera, Angel Garcia, and Candida Lopez gave the Respondent no
cause for discharging them by their conduct during the strike. It is
clear, therefore, and we find, that they were discharged by the Re-
spondent for engaging in concerted activity protected by the Act.
We further find that by such discharges the Respondent discriminated
in regard to their hire or tenure of employment in violation of Section
8 (a) (3) of the Act, thereby violating Section 8 (a) (1) of the Act by
interfering with, restraining, and coercing its employees in the exer-
cise of rights guaranteed them in Section 7.
However, as already noted, we do not agree with the Trial Examiner
that the Respondent violated the Act by its discharge of the other
complainants in the case. The credible evidence in the record shows
that each of them engaged in conduct during the strike which, con-
trary to the Trial Examiner, afforded justification for his or her dis-
charge. Thus, there is testimony which the Trial Examiner credited,
as do we, which shows that :
(a) Ezequiel Cepeda, Fernando Garcia, and Daniel Vasquez mali-
ciously destroyed at least one padlock on the Respondent's front gate
on March 24, 1947.
(b) Samuel Hurtado slapped the face of a supervisor of the Re-
spondent, who was cautioning strikers to desist from tampering with
the plant gate padlocks, causing his eyeglasses to fall to the ground
and break.
(c) Erasmo Garcia, Roberto Garcia, and Benjamin Lopez, while
armed with clubs, threatened a nonstriker on his way home from
work on March 24, 1947, with bodily harm if he failed to cooperate
with the strikers. The fact that their threat did not have the intended
effect does not, as the Trial Examiner implies, serve to excuse their
wrongdoing.
21 Indeed, as appears from the Intermediate Report, the letter offering reinstatement to
each of them contained this language : ". . . we have decided to give you another oppor-
tunity to return to your work in our plant , trusting that you will not incur again in the
motives which you gave for your former destitution."
PORTO RICO CONTAINER CORPORATION 1579
(d) Altagracia Morales, Ramona Tivent, Sara Rivera, and Con-
cepcion Rosa threw stones, and Juana Colon, a thermos bottle, at an
automobile leaving the plant on March 25, 1947, carrying nonstrikers
to their homes. The automobile's windshield and ventilator window
were cracked.
(e) Paula Adorno slapped the face of a customer of the Respondent
who called at the plant on April 22, 1947, to pick up an order placed
before the strike began.
The Respondent also adduced testimony, through at least two wit-
nesses in each case, which does not appear in the Intermediate Re-
port, but which, by its well-supported and mutually corroborative
nature, convinces us further that:
(f) Francisco Fernandez and Sera fin Garcia participated in an as-
sault made on March 25, 1947, upon two nonstrikers who were on their
way to work. Fernandez did not take the stand to deny the role in
the incident imputed to him by those assaulted. Garcia denied gen-
erally that he had engaged in any acts of violence prior to his dis-
charge. But his testimony as a whole is rendered suspect by the
inconsistencies therein and by the fact that the Trial Examiner has
discredited that portion of his testimony disclaiming knowledge of the
offer of reinstatement made by the Respondent on May 13, 1947.
(g) Jose Rivera de Leon was one of a number of strikers who at-
tacked a group of nonstrikers on their way to work on March 25,
1947. This complainant hit two of the nonstrikers with rocks, caus-
ing them serious injuries. We are unable to accept his claim of inno-
cence in the matter. His untrustworthiness as a witness is amply
demonstrated by his incredible testimony that the strike was "really
peaceful" without trouble "at no time at all," and by his denial that
Paula Adorno was the person who slapped the face of the Respondent's
customer on April 22. Further impugning de Leon's credibility is his
testimony that Luis Torres was the victim of an attack at the hands
of nonstriker Francisco Gotay, when, as the Trial Examiner properly
found, Torres was the aggressor.
(h) Ramon Garcia, with gun in hand, grabbed a female nonstriker
by the arm, and tore her dress sleeve, during the course of the above-
mentioned encounter between strikers and nonstrikers while other
members of her family were attacked. Garcia's testimony that he
was no more than an innocent passerby at the scene of the meeting
between the two groups was contradicted by at least four witnesses.
(i) Zenon Lopez slashed at the tire of a company truck as it left
the plant on March 21, 1947. Lopez' denial of responsibility for this
act does not ring true in the face of other testimony by him char-
acterizing the strike as a "very peaceful" one, and denying the
pendency of a court case charging him with a criminal assault on
1580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
April 22, 1947, a fact to which the Respondent and the General
Counsel stipulated.
As the weight of the evidence shows that the employees referred
to above engaged in conduct during the course of their concerted
activity which exceeded the bounds of permissible action, we find that
their discharge for such conduct was not unlawful.- We shall there-
fore dismiss the complaint as to them.
The Remedy
Having found that the Respondent has engaged in the unfair labor
practices set forth above, we shall order that it cease and desist there-
from and that it take certain affirmative action designed to effectuate
the policies of the Act.
Like the Trial Examiner, we have found that the Respondent unlaw-
fully discharged Felix Diaz Castro, Carlos Rodriguez, Virgilio Ortiz,
Carlos Rivera, Angel Garcia, and Candida Lopez. The Trial Exam-
iner recommended that the Respondent reinstate these employees and
make them whole for any loss of pay suffered as a result of the dis-
crimination against them. However, the record shows that on May
13, 1947, Castro and Lopez were invited to return to work "as soon as
possible"; that they did so just after the plant resumed operations on
May 16, 1947; and that Rodriguez returned to his job the day after the
plant reopened. It also appears that the Respondent's production
operations were completely shut down during the period between the
time that Castro and Lopez were discharged and the time that they
were offered reinstatement, and that Rodriguez, according to his own
testimony, was paid his salary by the Respondent for the period that
he was out of work following his discharge. As these facts show that
Castro, Lopez, and Rodriguez were offered reinstatement following
their discharge, which they accepted, and that they did not sustain
any loss of wages as a result of their unlawful separation, we shall not
order reinstatement or make an award of back pay as to them.
We shall, however, order the Respondent to offer Garcia, Rivera,
and Ortiz, who have not yet been reinstated, immediate and full rein-
statement to their former or substantially equivalent positions, without
prejudice to their seniority and other rights and privileges. Like the
Trial Examiner, we find the rights of Garcia and Ortiz unaffected
by the offers of reinstatement which were made to them before the
plant resumed operations in May 1947. For the record shows that,
at the time the Respondent invited them and other complainants to
return to work, it expressly barred the return of Rivera and Rodriguez,
23 As the Respondent was justified in discharging the complainants in question for their
misconduct considered above, we find it unnecessary to decide whether certain of them
engaged in additional allegedly unprotected activity.
PORTO RICO CONTAINER CORPORATION 1581
who were also entitled to reinstatement at the time. We have here-
tofore held that "an offer of reinstatement to some of a number of
employees who have been discriminated against as a result of con-
certed activity . . . together with a clear manifestation that the
other employees who have been so discriminated against will not be
allowed to return to work, does not constitute any real offer of rein-
statement within the purview of the Act." ss
We shall also order the Respondent to make Rivera, Garcia, and
Ortiz whole for any loss of pay they may have suffered by reason of
the Respondent's discrimination against them. Under ordinary cir-
cumstances, we allow an employee who is discharged in violation of
the Act back pay from the date of the discrimination against him
to the date he has been offered reinstatement. But in cases such as
this, where employees are discriminatorily discharged while on strike,
it is the Board's practice to award back pay from the date when the
dischargees unconditionally requested reinstatement, rather than from
the date of their discriminatory discharges, on the theory that their
loss of wages cannot conclusively be attributed to the discharges until
the strikers have indicated their willingness to abandon the strike .24
In the instant case, reinstatement was requested on April 10, 1947, on
behalf of all the complainants, including Rivera, Garcia, and Ortiz,
who were discharged prior thereto. But as that request was also
made on behalf of Enrique Ortiz and Luis Torres, who were lawfully
discharged, it is clear that it was not an unconditional request for
reinstatement, indicating the willingness of Rivera, Garcia, and Ortiz
to abandon the strike. As the record does not show whether these
employees have otherwise abandoned the strike, we shall order back
pay in their cases only from the date of such abandonment to the date
on which the Respondent offers them reinstatement.
Because of the Respondent's unlawful conduct and its underlying
purpose, we are convinced that the unfair labor practices found are
persuasively related to other unfair labor practices proscribed by the
Act, and the danger of their commission in the future is to be antici-
pated from the Respondent's conduct in the past. The preventive
purposes of the Act will be thwarted unless our order is coextensive
with the threat. In order, therefore, to make more effective the
interdependent guarantees of Section 7, to prevent a recurrence of
21 The Good Coal Company, 12 NLRB 136, enfd. 110 F. 2d 501 (C. A. 6), cert. den. 310
U. S. 630. See also N. L. R. B. v. Poultrymen's Service Corporation, 138 F. 2d 204 (C. A.
3). The fact that Carlos Rodriguez was thereafter allowed to return to work, as noted
above, does not alter the discriminatory nature of the Respondent's offer.
In view of our finding above, we need not pass on the additional reasons relied upon by
the Trial Examiner to support his finding that the Respondent's offer of reinstatement was
not a valid one.
u Ifallaher and Mee, Inc., supra; Alside, Inc., 88 NLRB 460; Globe Wireless, Ltd., 88
NLRB 1262.
1582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unfair labor practices, and thereby minimize industrial strife which
burdens and obstructs commerce, and thus effectuate the policies of
the Act, we shall order the Respondent to cease and desist from in-
fringing in any manner upon the rights guaranteed in Section 7 of
the amended Act.
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, Porto Rico Con-
tainer Corporation, Hato Rey, Puerto Rico, its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Union de Operarios de Fabrica
de Envases de Carton de Porto Rico Container Corporation, afiliada a
la Confederacion General de Trabaj adores de Puerto Rico, or any other
labor organization of its employees, by discharging or refusing to
reinstate or in any other manner discriminating against them in regard
to their hire or tenure of employment or any term or condition of their
employment ;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Union de Operarios de Fabrica de
Envases de Carton de Porto Rica Container Corporation, afiliada a la
Confederacion General de Trabajadores de Puerto Rico, or any other
labor organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection, or to
refrain from any or all of such activities, except to the extent that such
right may be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in Section
8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer to Angel Garcia, Carlos Rivera, and Virgilio Ortiz im-
mediate and full reinstatement to their former or substantially equiva-
lent positions,25 without prejudice to their seniority and other rights
25 In accordance with the Board ' s consistent interpretation of the term, the expression
"former or substantially equivalent position " is intended to mean "former position wherever
possible , and if such position is no longer in existence , then to a substantially equivalent
position ." The Chase National Bank of the City of New York , San Juan, Puerto Rico,
Branch, 65 NLRB 827.
PORTO RICO CONTAINER CORPORATION 1583
and privileges, and make them whole for any loss of wages suffered
as a result of the discrimination against them, in the manner described
in the section above entitled "The Remedy";
(b) Post at its plant in Hato Rey, Puerto Rico, copies in Spanish
translation of the notice attached hereto and marked Appendix A 26
Copies of said notice, to be furnished by the Regional Director for the
Twenty-fourth Region, shall, after being duly signed by the Respond-
ent's representative, be posted by the Respondent immediately upon
receipt thereof, and maintained by it for sixty (60) consecutive days
thereafter, in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered, defaced, or
covered by any other material;
(c) 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 other
violations of the Act, be, and it hereby is, dismissed.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
IVE WILL NOT DISCOURAGE IMEMI3ERSNIP IN UNION DE OPERARIOS DE
FABRICA DE ENVASES DE CARTON DE PORTO Rico CONTAINER CORPO-
RATION, AFILIADA A LA CONFEDERACION GENERAL DE TRABAJADORES
DE PUERTO RICO, or any other labor organization of our employees,
by discharging or refusing to reinstate any of our employees, or
by discriminating in any other manner with regard to their hire
or tenure of employment, or any term or condition of employment.
EVE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organiza-
tion, to form labor organizations, to join or assist UNION DE
OPERARIOS DE FABRICA DE ENVASES DE CARTON DE PORTO RICO CON-
TAINER CORPORATION, AFILIADA A LA CONFEDERACION GENERAL DE
TRABAJADORES DE PUERTO RICO, or any other labor organization, to
bargain collectively through representatives of their own choosing,
29 In the event this Order is enforced by decree of a United States Court of Appeals, there
shall be inserted before the words, "A Decision and Order," the words, "A Decree of the
United States Court of Appeals Enforcing."
1584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from
any or all of such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in Sec-
tion 8 (a) (3) of the Act.
WE WILL OFFER Angel Garcia, Carlos Rivera, and Virgilio Ortiz
immediate and full reinstatement to their former or substantially
equivalent positions without prejudice to any seniority or other
rights and privileges previously enjoyed, and make them whole
for any loss of pay suffered as a result of the discrimination against
them, as set forth in the Decision and Order.
All our employees are free to become or remain members of the
above-named union or any other labor organization, except to the ex-
tent that this right may be affected by an agreement in conformity
with Section 8 (a) (3) of the amended Act. We will not discriminate
in regard to hire or tenure of employment or any term or condition
of employment against any employee because of membership in or
activity on behalf of any such labor organization.
PORTO RICO CONTAINER CORPORATION,
Employer.
By -------------------------------------
(Representative ) (Title)
Dated ------------------------------
This notice must remain posted for 60 days from the date hereof, and
must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Richard Lipsi-tz, Esq., of Buffalo, N. Y., for the General Counsel.
Gaspar Rivera Cestero, Esq., and Milton F. Rua, Esq., of San Juan, P. R., for
Respondent.
Jose Rivera de Leon, Altagracia Morales and Concepcion Rosa, of San Juan,
'. R., for the Union.
STATEMENT OF THE CASE
Upon a charge filed on November 20, 1947, by the Union named in the caption,
herein referred to as the Union, the General Counsel of the National Labor Rela-
tions Board, by the Regional Director for the Fifth Region, issued a complaint,
dated February 16, 1949, against the Porto Rico Container Corporation, herein
referred to as the Respondent.
The charge alleged that Respondent had engaged in unfair labor practices
within the meaning of Section 8 (a) (1), 8 (a) (2), 8 (a) (3), and 8 (a) (5)
of the National Labor Relations Act' in that: (1) On or about April 1, 1947, it
129 USC 151 et seq. At the dates alleged the subsections bore the numbers by which
they were designated in the Act prior to its amendment . Both parties have used the
current designations even when the reference is to a point of time prior to the amendment.
I follow their practice.
PORTO RICO CONTAINER CORPORATION 1585
dominated the formation of Asociacion Unica de Empleados de Porto Rico Con-
tainer Corporation, contributing financial and other support; (2) on or about
March 18, 1947, it discriminatorily discharged Rafael Rivera Mendoza; (3) on
or about March 20, 1947, it discriminatorily laid off Virgilio Ortiz, Enrique Ortiz,
Concepcion Rosa, Paula Adorno, and Luis Torres (Ramos) ; (4) on or about
March 25, 1947, it discriminatorily discharged 26 named employees; and (5) on
or about March 25, 1947, it refused to recognize or bargain with the Union, a
refusal which it has thereafter continued.
The complaint repeated with more detail the allegations of the charge and in
addition alleged a number of acts as independent violations of Section 8 (a) (1).
To the complaint Respondent filed motions (a) to dismiss , ( b) to strike the
allegations of independent violations of Section 8 (a) (1) and (c) to make
these allegations definite. On February 25, 1949, I was designated by the Chief
Trial Examiner to rule on these motions. On February 28, 1949, I denied the
first two and ordered that the complaint be made definite in a number of respects
by the filing of a bill of particulars. These rulings were made in writing and
are part of the record.
On March 2, 1949, the General Counsel filed the bill of particulars. Mean-
while the proceeding had been scheduled for a hearing to commence March 7,
1949, and I was designated by the Chief Trial Examiner as the Trial Examiner
to conduct it.
The Union filed an amended charge on March 4, 1949. This was identical with
the original charge except: (1) It alleged a violation of Section S (a) (4) in
addition to the section previously alleged to have been violated; (2) it alleged
the discharge of Carlos Munoz Rivera, on or about February 24, 1949, for having
given information in regard to the pending proceeding and for union activity;
and (3) it alleged that by this discharge and by other acts since on or about
September 5, 1948-and not specified more exactly as to nature, actor, or date-
Respondent had interfered with the exercise of rights guaranteed by the Act.
At the opening of the hearing, General Counsel filed amendments to the com-
plaint. This merely added an allegation covering the discharge of Carlos Munoz
Rivera and made certain formal corrections.
Respondent filed an answer to the complaint and to the amendments to the
complaint. It denied that it had dominated the formation of Asociacion Unica;
denied the suspension of Luis Torres (Ramos) ; admitted the discharge of Rafael
Rivera Mendoza ; the layoffs of Virgilio Ortiz, Enrique Ortiz, Concepcion Rosa,
and Paula Adorno ; the discharges of some of the 26 named employees ; and the
discharge of Carlos Munoz Rivera ; and averred that said acts were for cause.
It admitted the refusal to bargain with the Union and stated that it did not
represent a majority of the employees. The answer also preserved Respondent's
objection to the allegations of independent violations of Section 8 (a) (1) as
not within the scope of the charge and not timely presented.
At the opening of the hearing-and before the answer was filed-Respondent
renewed its motions for dismissal of the proceedings and to strike from the com-
plaint. Ruling was reserved. They will be disposed of herein?
The hearing was held, pursuant to notice, from March 7 through April 22, 1949,
at San Juan, 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. Since
%A number of other motions were filed at the outset of the hearing. Developments shown
by the record obviated the need to consider them.
1586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the close of the hearing, both General Counsel and Respondent have submitted
briefs.
The Motion to Dismiss
This was founded upon two wholly separate theories: (1) That the proceeding
was not timely instituted; and (2) that the Union was in noncompliance with
Section 9 (f), (g), and (h) of the Act.
At the date of the acts alleged in the charge there was no time limit except as
imposed by the Board's rule against stale charges. It was not until August 22,
1947, that by amendment of the Act a 6-month limitation was enacted. It is well
settled that a newly enacted statute of limitations operates prospectively only.'
The charge in the proceeding at bar was filed well within 6 months from the
effective date of the amendment.
Nor is the proscription of stale charges applicable. The Union filed charges
with the Puerto Rico Labor Relations Board, doing so within a day or two of
the acts charged. That proceeding was arrested by Respondent's challenge of
that Board's jurisdiction. It was not until October 24, 1947, that the statement
of policy was executed which clearly established the jurisdiction of the National
Board over the case at bar. The charge was filed with the General Counsel
within a month from that date ; even before the statement was published in the
Federal Register'
Clearly, the claim of a want of timeliness is without foundation.
Respondent placed more reliance upon the second ground of his motion ; that
the complaint did not affirmatively allege, nor the evidence prove, union compli-
ance with Section 9 (f), (g), and (h).
Both the charge and the amended charge advise that the General Counsel ad-
ministratively determined the fact of union compliance before issuing the com-
plaint. The Board has recently decided that in complaint cases, as well as in
representation cases, compliance with Section 9 (f), (g), and (h) is a matter
for administrative determination and is not litigable by the parties.'
The motion to dismiss is overruled.
The Motion to Strike
This was directed to paragraph V of the complaint which listed a number of
acts claimed to violate Section 8 (a) (1).
The charge, it will be remembered, was filed November 20, 1947, and alleged
five specific acts which occurred on definitely stated dates between March 18 and
April 1, 1947.
Fifteen months after this charge was filed and served, almost 2 years
after the last of the acts stated in the charge, the complaint was filed. It alleged,
for the first time, 10 different categories of acts-with an unstated number in
each category-claimed to constitute independent violations of Section 8 (a) (1).
Its only statement as to the persons by whom these acts were done was the blanket
IN. L. R. B. v. Gate City Cotton Mills, 167 F. 2d 647 (1948) ; N. L. R. B. v. Caroline Mills,
Inc., 167 F. 2d 212 (1948) ; N. L. R. B. v. Brazen, 166 F. 2d 142 (1948) ; Old Colony Box
Company, 81 NLRB 1025 (February 28, 1949).
4 12 F. R. 7902. Published November 25, 1947.
' Pouts Valley Milling Company, 82 NLRB 1266 (April 19, 1949) ; Arthur J. Wiltse, 85
NLRB 58 (July 8, 1949). The only noncompliance Respondent sought to prove by evidence
was in relation to the furnishing of financial reports to union members. Were this a
litigable matter, I would find that the evidence affirmatively shows substantial compliance.
PORTO RICO CONTAINER CORPORATION 1587
phrase, "Respondent, by its officers, agents and supervisory employees." Its
only designation of a date was a blanket one covering all the acts in all 10 cate-
gories, "since on or about 1945 and continuously down to and including the date of
the issuance of the complaint."
In the bill of particulars 5 of the acts were alleged to have occurred in 1945,
IO in 1946, 120 in 1947 before the date of the first act mentioned in the charge,
and the remainder to have been coincident in time with or to have followed
the acts specifically charged as unfair labor practices.
Not one of the acts alleged to have occurred earlier in time than those com-
plained of in the charge was averred to have been causative of or directly con-
nected with any of the items it contained. On the other hand, the later events
all showed on their face a connection with those made the subject of the
charge, even though they were not specifically mentioned in it.
Respondent's motion to strike is directed to all the allegations of the complaint
not specifically covered by those of the charge.
As long ago as 1940, the Supreme Court recognized the possibility that:
The statutory requirement of a charge as a condition precedent to a com-
plaint excludes from the subsequent proceedings matters existing when the
charge was filed but not included in it'
In the case at bar we have allegations in the complaint of matters not only
existing when the charge was filed but antedating the events complained of in
the charge, although by their nature they must have been known to the charging
party when be prepared the charge which brought the proceeding into being.
The Supreme Court, in the quoted case, found it unnecessary to decide the
question raised by its own statement, finding that the problem before it could
be solved by the narrower holding that the Board is not restricted to the
specific unfair labor practices alleged in a charge but may deal with others
related to those so alleged and which grow out of them while the proceeding is
pending. Logically, the language and line of reasoning of the Court seems to lead
to two inescapable conclusions: (1) That the "statutory requirement of a charge
as a condition precedent" does impose a limit on the freedom of action which may
follow; and (2) that the limitation is not a strict one to the letter of the matter
charged.
Since the Supreme Court raised the question, two enactments by Congress seem
to bear on its answer, as the matter comes up in the case at bar. The Achnin-
istrative Procedure Act' specifically provides that parties sought to be charged
at administrative hearings shall be "timely informed" of, among other things,
"the matters of fact and law asserted." And the amendment of the National
Labor Relations Act, by imposing a statutory time limit on the filing and service
of charges, plainly showed a disapproval of claims of unfair labor practices first
alleged after they have grown stale.
Research has disclosed no controlling authority clearly answering the question
how far the complaint may go beyond the limits of the charge. It has been
held that not every variance is void.8 The Board has used language to the
effect that the complaint may include matters "relating to" the unfair labor
practices specified in the charge, even though not themselves definitely asserted.9
0National Licorice Company v. N. L. R. B., 309 U. S. 350 (1940).
7 5 U. S. C. 1004 (a) (1946).
Fulton Bag and Cotton .Mills, 75 NLRB 883 (1948).
9Erving Paper Mills, 82 NLRB 434 (1949).
889227-51-vol . 89-101
1588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
That appears to approach the limit permitted by the Administrative Procedure
Act.
Applying that rule to the case at bar, it is apparent that the acts and words of
Respondent's officers and supervisory employees in connection with the strike
which followed the suspensions referred to in one paragraph of the charge and
led to the discharges alleged in another, must be regarded as related to the
charge and to be proper for inclusion in the complaint.
But the allegations of words and acts antedating the earliest of the specific
allegations of the complaint, some of them by a full 2 years, bear no casual
relationship to and have no connection with any of the matters stated in the
charge. They can be included in the complaint only upon the theory that any
allegation of an unfair labor practice opens the door to a general search and to
action wholly independent of the subject matter of the charge.
As to the unrelated allegations of independent violations of Section 8 (a) (1),
not related to or connected with any of the matters averred in the charge, the
motion to strike is sustained. As to those which show a relationship to the mat-
ters alleged in the charge, although not specifically included, it is overruled. The
detail of matters regarded as properly within the scope of the proceeding will
appear in later portions of this Report.
Passing from preliminary matters, 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 is a Puerto Rico corporation, having its principal place of business
at Hato Rey, Puerto Rico. It is and at all times here involved was engaged in
the manufacture and sale of corrugated board, cardboard and corrugated board
boxes and containers, and paper box supplies. In the period February 1946
to January 1947, it purchased raw materials, machinery, and fuel oil to a
value of $643,525.87. Fifty-three percent of these purchases was made in con-
tinental United States. In the period March 1948 through February 1949 similar
purchases were in excess of $500,000. Ninety percent of them was made directly
in continental United States. In the period February 1947 to January 1948,
Respondent's sales totaled $1,290,888.40. Fifty-seven percent was ultimately in
export trade outside of Puerto Rico. Of that 57 percent, products to a value of
$24,816.24 were exported directly by Respondent. In the period March 1948
through February 1949, the sales totaled in excess of $800,000. Again, approxi-
mately 57 percent was used ultimately in export trade outside of Puerto Rico.
10 General Counsel's witness Ramona Tivent, Luis Torres (Ramos), and Paula Adorno
did not appear in person. The parties stipulated what each would testify to on both direct
and cross-examination. Respondent's witnesses Abelardo Gotay, Pio Gonzales, and Angel
Morales did not appear in person. The parties stipulated what each would testify to on
both direct and cross-examination. Also, the parties stipulated that 16 specified persons,
if called by Respondent, would testify in refutation of 2 of General Counsel's witnesses on
a particular point. Of the 16, Abelardo Gotay, Gilberto Perez, Ramon Gonzales, Ciprian
Gonzales, Isabelo Caraballo, and Nicolas Rivera did not appear in person. The other 10
covered by the stipulation had appeared in person and testified as to other points earlier
in the proceeding.
PORTO RICO CONTAINER CORPORATION 1589
Respondent concedes and it is found that Respondent is engaged in commerce
within the meaning of the Act.
If. THE LABOR ORGANIZATION INVOLVED
Union de Operarios de Fabrica de Envases de Carton de Porto Rico Container
Corporation, atliada a la Confederacion General de Trabajadores de Puerto Rico
is a labor organization admitting to membership employees of Respondent.
III. THE UNFAIR LABOR PRACTICES u
Foreword. To carry on its business Respondent employs 100-150 production
workers. In the main its work requires only unskilled labor. The employees are.
trained on the job. On most of the jobs, 30 days are sufficient to bring an employee
up to full productivity.
Respondent makes three types of boxes. Each type is made in a separate depart-
ment. Throughout the record the departments are referred to by their Spanish
titles : The corrugado, the plegadizo, and the armado. In spite of the fact that
the plant is thus departmentalized, it is operated as an integrated unit. When
work slackens in one department and piles up in another, workers are tempo-
rarily transferred.
There are in effect several different methods of compensation. Men above the
grade of foreman receive annual salaries. The three foremen and five other em-
ployees are paid weekly salaries. All others are paid on an hourly rate basis.
Some of the hourly paid workers are given a guaranty of pay for 40 hours a
week, provided their absences are justified. The remainder is paid for only
the hours they actually work. For all workers from foreman down the pay was
regularly supplemented by a bonus at Christmas. The amount of each bonus is
determined by the manager and is wholly discretionary with him.
Respondent has a regular system for loans to employees as an advance against
wages. An employee can borrow $10, $20, or $30 and repay the loan by deduction
of 1.0 percent of the amount borrowed each pay day. When larger amounts
are needed, Respondent aids the employee to a bank loan of $100 by guaranteeing
its repayment. In such cases $8.33 is deducted from the borrowers pay once
each month. The record shows that these methods for anticipating pay are
widely used.
Respondent has an established system for suspension of employees. Suspen-
sions are for two reasons : (1) Lack of work; and (2) disciplinary causes. When
an employee is found to be guilty of a breach of rule or of conduct detrimental
to the operation of the plant but the offense is not considered sufficiently serious
to warrant discharge, the offending employee is punished by suspension, usually
for a definite time, the length of the period being graded, according to the
manager's discretion, by the seriousness of the offense.
"Care must be used in the consideration of names shown in the record. Many of the
persons involved were of similar names. For instance, there are references to Jose H. Rod-
riguez, Jose N. Rodriquez, and Jose Rodriquez Ema. Further, the same person is designated
sometimes by hig patrilineal and sometimes by his matrilineal surname . Thus, Jose Rivera
de Leon is referred to both as Mr. Rivera and Mr. de Leon. The degree of possibility of
misunderstanding is well illustrated by a specific example from the record. Francisco Cruz
was an employee who did not join the Union or go out on strike. In fact, he was accused of
espionage in the Employer's interest. One of the active strikers was generally referred
to as Francisco Fernandez. But the record shows he signed the union agreement as Fran-
cisco F. Cruz.
1590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In general, suspensions for lack of work are applied on principles of seniority,
the newer employees being the first suspended. But this is subject to. certain
exceptions. Key employees who operate essential machines which require special
skills are retained even though they lack seniority. Also, at times of work
shortage disciplinary suspensions are more readily imposed and because of them
workers of less seniority may happen to be retained. Further, it is apparent
that employees with generally unsatisfactory work records are sometimes sus-
pended instead of newer employees even though no definite cause exists for
disciplinary action.
Suspensions for lack of work are generally "until further notice." They are
generally, but not always, made by the department foreman after consultation
with the manager. Disciplinary suspensions are always made by the manager.
The parties agree as to the supervisory status of Santos Zubillaga„manager;
Miguel Hernandez, assistant manager ; Manuel Carmona, paymaster ; Edmundo
Carmona, head of the delivery division ; Paulino Torres, foreman of corrugado ;
Manuel Ramirez, foreman of plegadizo ; and Cecilio Sanchez, foreman of armado.
The General Counsel claims, but Respondent denies, supervisory status for
Francisco Rosario (Cartagena), Avelino Barreto, Jose Brillon, Jorge Vasquez,
and Francisco Cruz.
The Respondent claims, but the General Counsel denies, supervisory status
for Rafael Rivera Mendoza, Altagracia Morales, and Zenon Lopez.
Respondent's rules adopted in January 1944 provide :
Tenth : The Administration will maintain the following officials :
1. Foreman of the Corrugating Department. (Corrugado)
2. Foreman of the Folding Boxes Department. (Plegadizo)
3. Foreman of the Set Up Boxes Department. (Armado)
4. Head of Delivery Department.
The method by which each of those whose status is in dispute was paid the
amount of his salary or wage and the amount of his 1946 bonus was as follows :
Name Salary or wage Bonus
Francisco Rosado (Cartagena) ------ $45.00 per wk--_________ $1,200.00
Avelino Barreto__________________ $40.00 per wk-__________ 12 75. 00
Jose Brillon______________________ $0.43 per hr____________ 40. 00
Jorge Vasquez____________________ $34.00 per wk___________ 100. 00
Francisco Cruz___________________ $0.87 per hr_-__________ 400. 00
Rafael Rivera Mendoza- _ _ _ _ _ _ _ _ _ _ $0.87 per hr____________ 200. 00
Altagracia Morales________________ $0.40 per hr____________ 1^ 25. 00
Zenon Lopez_____________________ $0.66 per hr------------ 14 60. 00
12 In connection with Barreto 's bonus it should be noted that in 1946 he returned from military
service only shortly before the year end.
13 Altagracia Morales was one of 18 women employees to be paid 40 cents per hour. She also was
one of 18 women to receive a bonus of $25. The 2 groups were not identical although they largely
overlapped.
14 Zenon Lopez' hourly rate was equalled or exceeded by 9 other hourly paid workers . His 1946
bonus was equalled or exceeded by 27 others.
These must be compared with the compensation and bonuses of others. The
first three of the following list are admittedly supervisors. The remainder are
not claimed by either party to have supervisory status but are among the most
highly compensated of the employees.
PORTO RICO CONTAINER CORPORATION 1591
Name Salary or wage Bonus
Paulino Torres___________________ $55.00 per wk___________ $2,750.00
Manuel Ramirez__________________ $39.50 per wk___________ 400. 00
Cecilio Sanchez___________________ $38.50 per wk___________ 300. 00
Constaricio Pacheco_______________ $0.66 per hr------------ 90. 00
Severo Collazo___________________
Samuel Hurtado__________________
$23.66 per wk___________
$0.74 per hr-___________
65. 00
Leoncio Figueroa----------------- $0.82 per hr____________ 265. 00
Pio Gonzales_____________________ $30.00 per wk___________ 80. 00
Jose Nicolas Rodriguez____________ $0.77 per hr_____________ 62. 50
From this list it is apparent that all who are admitted to be of supervisory
status (1) were paid a weekly salary and received a substantial bonus, and (2)
all who received salaries and large bonuses were not even claimed by either party
to be supervisors.
The fact that Francisco Rosado (Cartagena) was paid by weekly salary, that
his salary was the second largest below top management and that his bonus was
second largest, three or four times that of two of the foremen, negatives a
claim that the was regarded as a run-of-mine employee. This differentiation in
method and amount of compensation would be strong cumulative evidence, if
combined with some testimony of supervisory duties, to support a finding of
supervisory status.
But there is no credible evidence of such duties and powers before the strike.
The evidence is positive that up to that time Rosado was the shop mechanic ; that
he undertook machine repair ; that when he needed a helper he asked the office to
assign one; that major repairs were made by outside machine shops or foundries ;
that Rosado's supervision was limited to routine oversight of his temporarily
assigned helper or of the temporarily called in outside workers; that in time of
need he himself was temporarily assigned not to supervision but to operating a
cutting machine.
The burden of proof that Francisco Rosado (Cartagena) was a supervisor is
not maintained.
Avelino Barreto was Respondent's salesman and occasional bill collector with
his desk in the plant office before he entered military service. When he returned,
late in 1946, he was given back his former job, his former salary, and his former
desk. Under the general economic conditions existing at that time there was
little call for a salesman's services and Barreto was frequently given temporary
jobs in the factory ; particularly, assisting in loading trucks. In this work he
was, from time to time, authorized to give routine orders. On the evidence,
Barreto is found to have been without supervisory status.
There is no evidence to support a claim that Jose Brillon was other than a
rank-and-file employee.
Jorge Vasquez operated the towmotor and, when it was not in use, was a
general handyman. The evidence does not support a finding that he was a
supervisor.
Francisco Cruz was in charge of the larger corrugadora and, in that capacity,
gave routine orders to the crew required for its operation. These were in
regard to the width of board to be made, and the like. In that capacity, it is
found he was not a supervisor. There is some evidence that for a short time
prior to the strike he was promoted to the position of assistant foreman over the
1592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
entire department of the corrugado. This evidence is too indefinite in supporting
detail, in view of its direct contradiction, to support a finding. The burden of
proving Francisco Cruz to be a supervisor was not sustained.
A number of General Counsel's witnesses testified that Rafael Rivera Mendoza
was nothing more than the operator of the printer-slotter-as Francisco Cruz
was the operator of the big corrugadora-and that he was not a supervisor. A
number of Respondent's witnesses testified that he was assistant foreman. Many
of the witnesses, on both sides, gave the impression they had been well coached
to testify as to Rafael Rivera Mendoza's supervisory status, or lack of it.
The conflict seems settled by the letter Manager Zubillaga wrote Rivera Men-
doza on December 27, 1946, in answer to the latter's complaint that his 1946 year-
end raise and bonus were unsatisfactorily less than those of the year preceding.
Zubillaga pointed out that in the year before Rivera Mendoza had been not only
in charge of the printer-slotter but also :
You were in charge and correctly managed the Corrugated Box Depart-
ment as the right arm of Paulino, but if you consider it has been a long
time since you limited yourself. . . .
In view of this clear statement, it must be and it found that Rafael Rivera
Mendoza was not of supervisory status at the time of and for some weeks before
his discharge.
Respondent introduced evidence which might tend to show that Altagracia
Morales had at one time been a "leader" when the plegadizo department was
on piecework, in 1941-43. But there is an utter failure of evidence to support
the claim that either she or Zenon Lopez had any supervisory powers in the
period immediately preceding the strike. At most, they gave routine instruc-
tion to those with whom they worked. The burden of proof of supervisory
powers and status was not sustained as to either of them.
Before undertaking a discussion of the controverted questions of fact involved
in the charges of unfair labor practices, it seems advisable to comment upon
the quality of the evidence and the witnesses through whom it was adduced.
It must be remembered that nearly all of the witnesses were interrogated and
answered through an interpreter. Obviously, this increased the possibilities of
misunderstanding; both because of its addition to the number of persons through
whom both questions and answers had to pass and because of differences in con-
notation, or at least of shades of meaning, between Spanish and English equiva-
lents.
Also, it must be remembered that a great proportion of the witnesses were
illiterate, or of little education. Repeatedly, it seemed apparent that they lacked
understanding of questions they were purporting to answer.
The events concerning which the witnesses were being interrogated occurred
2 years before the hearing. This lapse of time unquestionably caused many
lapses of memory. And also, it permitted some witnesses to claim lapse of memory
where an answer might have been detrimental or embarrassing.
The strike of March 1947 concerning which the witnesses were testifying was
one in which passions ran high. It created a background of bitterness, of per-
sonal animosity, which inevitably colored the testimony. These colors were not
weakened by the feeling of union loyalty engendered in General Counsel's wit-
nesses by the long fight they had undergone together in the Union's behalf. Nor
were they weakened on the part of Respondent's witnesses by feelings of loyalty
to their employer and fear of economic detriment should their testimony in his
behalf be less than wholehearted.
PORTO RICO CONTAINER CORPORATION 1593
Whatever the reason, a great part of the record is taken up by testimony to
which it is impossible to give credence.
Rafael Rivera Mendoza was an extremely evasive witness throughout his time
on the stand. His manner and attitude were not such as to inspire belief in his
testimony. Altagracia Morales' memory failed from time to time, especially on
cross-examination and even on points as to which she had testified without hesi-
tation while being interrogated by the General Counsel. Specifically, in answer
to the charge that on the morning of March 25, 1949, she threw stones which she
carried in her umbrella, she testified positively-among other reasons for not
having an umbrella that day-that the weather was fair and sunny. Weather
Bureau records show that it rained hard that morning. Concepcion Rosa, in
denying the sale of bolita tickets, protested utter ignorance of what bolita is.
Later she admitted that on occasion she had been a purchaser of bolita tickets.
Enrique Ortiz testified that the strike was conducted peacefully and swore that
he himself had not been involved in any act of violence. The record shows that
he was three times charged and tried and was found guilty and fined for two
separate assaults, one of them of aggravated character. Amelia Rosario Velas-
quez gave a statement favoring the strikers to the Insular Board. Later, when
she hoped to get back her job with Respondent, she gave it an affidavit in which
she repudiated her earlier statement. When on the stand-not having been
reemployed-she repudiated that affidavit.
This is sufficient to indicate the lack of reliability of much of the General Coun-
sel's evidence. It does not pretend to cover all the examples furnished by the
record.
But not all the unsatisfactory evidence was on one side. Respondent's case
can furnish an equally great, or greater, number of examples.
Candida Lopez and Juanita Garcia both undertook to describe the walkout that
occurred on March 21, 1947. Both testified that they did not leave their work
to go on strike. Both explained their leaving by the terror which arose from
the cries of "Fire" they heard which caused them with their fellow employees
to drop their work and rush in panic to the stairway, down the stairs, and to the
sidewalk. But having told their story, both supplemented it by a second ex-
planation ; that while they were at their work and desirous of staying there,
strikers Altagracia Morales and Providencia Garcia forcefully pushed them from
their chairs, to the stairway, down the stairs, and to the walk. The inconsistency
needs no comment. Narcisa Arias testified that she (lid not return to work on
March 21 or 24 because of threats of violence. But she went on to state that
she was threatened for the first-and only-time on March 25. She negatived
all possibility of threat before that date. Rosalina Velez fixed the point from
which she observed the fight on Fiol Street as one from which she could have done
so only by seeing around a corner or through two brick walls. Daniel Vasquez
testified that the account he gave the Insular Board of the Fiol Street fight was
given under the compulsion of two union leaders who told him what to say and
made him repeat the story. He fixed the time they did this as March 24. The
light did not occur until March 25. Edmundo Carmona testified that on the
morning of March 21 he was downstairs in the factory ; that he heard Enrique
Ortiz shout "Fire"; that Ortiz was halfway tip the back stairs when he began
to shout; and that he (Carmona) immediately ran to see that the master switch
was thrown to cut off all electricity. Manuel Carmona testified that he was
upstairs and heard Ortiz shout as he came up the stairs. Carmona said that
he ran to the head of the stairs, greeted Ortiz by asking where the fire was, and
then, on his way back to the front of the building, or after he got there, noticed
1594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Samuel Hurtado's machine had been left running. How it continued to
operate after the power was cut off was not explained.
Again, further examples could be given. Respondent's testimony, like that
adduced by the General Counsel, contains much that appears incredible.
A. The discharge of Rafael Rivera Mendoza, March 18, 194'
Respondent admitted that on March 18, 1947, it discharged Rafael Rivera
Mendoza.
Respondent's manager admitted while on the stand that up to a few months
before that date Rivera Mendoza had been regarded as one of the most valued
employees. He was the operator in charge of the two printer-slotters, had been
assistant foreman of the corrugado, and was one of the two most highly paid
hourly workers in the factory. Manager Zubillaga's letter of December 27,
1946,-above referred to-while it bespeaks a current dissatisfaction, manifests
the high regard in which Rivera Mendoza formerly had been held.
His job in charge of the printer-slotters was a key position in Respondent's
production process. All the containers made from corrugated board had to go
through the printer-slotter to be printed and to be shaped for final folding. The
folding was done by hand and when the plant was in full operation a large
number of folders was required. Then, if anything happened to stop or delay
the operation of the printer-slotter the folders were caused to lose time. That
such losses increased Respondent's production costs is apparent.
To keep the printer-slotter in proper operable condition ; to make the numerous
adjustments necessary for each lot to be run through; to set in place, with the
extreme nicety required, the numerous rubber dies used in the vari-colored
printing jobs; to run the proof; and, when a job was in process, to oversee the
folders and make sure they handled the boxes in the proper order and only
after enough time to prevent the labels from smearing, obviously was not a job
that could be filled by an unskilled laborer, by one without training, or by one
with only a few days training on the job, such as would qualify most of
Respondent's employees for the work they had to do. On the contrary, the printer-
slotter could only be operated by a trained, skilled, experienced workman, such
as Rafael Rivera Mendoza ;-a fact that was appreciated by Respondent and by
Rafael Rivera Mendoza himself.
It is apparent, since the operation of the printer-slotter occupied a key position
in the maintenance of Respondent's production schedules and since its operation
was not a job that could be turned over to an unskilled man, that it was peculiarly
necessary that Respondent be able to rely upon the attendance of its operator and
his careful attention to his work.
Zubillaga's letter to Rivera Mendoza manifests, in addition to appreciation
of his ability and past services, a definite dissatisfaction with the manner in
which he was currently performing his duties. Also, by its references to the
letter to which it was a reply, it shows that Rivera Mendoza was dissatisfied
with his treatment by Respondent and thought that his services were not fully
appreciated.
Zubillaga's testimony shows that over the period from December 27 to March 17,
Rafael Rivera Mendoza continued to manifest his dissatisfaction by a continuing
amount of absence and by an increasing carelessness. It shows that some of
the absences were unnecessary and that some were deliberate, in an attempt to
demonstrate to the employer the employee's essentiality. Zubillaga's testimony
is corroborated, in part, by Respondent's payroll records which show Rivera
PORTO RICO CONTAINER CORPORATION 1595
Mendoza to have been absent over a fifth of the working time for the last 7 weeks
of that period. It is corroborated, in part, by the fact that it became necessary
to hire men on overtime to clean the rollers of the printer-slotter and that they
removed over 600 pounds of dried ink.
It seems clear from Zubillaga's testimony that Rivera Mendoza's absences and
carelessness increased to the point of intolerability and that Respondent finally
decided to discharge him and face the problem of replacing him.
There seems no reason to doubt that Zubillaga's letter of March 17, 1947,
informing Rafael Rivera Mendoza that he was discharged because of his exces-
sive absenteeism is less than bona fide.
Even if it be assumed that Rivera Mendoza was one of the leaders in the
then incipient movement to organize the factory and that Respondent's manage-
ment knew of his intentions and activities in this regard, it does not weaken the
conclusion in respect to his discharge. Of course, if in addition to this assump-
tion, I credited Rafael Rivera Mendoza's account of his final interview with
Santos Zubillaga, that the latter before handing him his letter of discharge asked
about his organizing activities in the plant and only discharged him after he
admitted a determination to form a union there, a different finding could be
supported. But I credit Zubillaga's account of that interview and not that of
Rivera Mendoza.
The record shows no overt union activity by Rafael Rivera Mendoza imme-
diately preceding March 17, 1947, to provoke Zubillaga to action against him
on that date. It does show absence of 2 half-days in the 2 working days imme-
diately preceding the discharge-and these following repeated absences in the
preceding weeks and following warnings of discharge to follow unless attend-
ance and conduct were bettered.
Upon the credible evidence it is found that Rafael Rivera Mendoza, by re-
peated, unnecessary, and unjustified absences, and by inattention and careless-
ness had given cause for discharge ; that Respondent complained of his conduct
by letter as early as December 27, 1946, and thereafter warned him that continu-
ance of his course of conduct would result in his discharge; and that he did
not heed the warning. The burden of proving Rafael Rivera Mendoza to have
been discriminatorily discharged was not sustained.
B. The suspension of Paula Adorno , March 20, 1947
There is little conflict of evidence in regard to this aspect of the proceeding.
That Paula Adorno was suspended just before quitting time March 20, 1947, is
admitted. She was handed by Zubillaga's secretary an envelope containing her
week's money and a note informing her she was suspended until further notice.
Nor is there serious dispute concerning her previous work record . She was
first hired in May 1943 ; she was holding , at the time of her suspension, an un-
skilled job in the armado ; and she had been suspended before for inattention
to her work.
Respondent 's account of her suspension is that because of a strike on the
railroad by which the plant received a large part of its supplies and delivered its
products to Island points such as Mayaguez and Ponce , it was forced, in the
week of March 20, 1947 , to lay off a number of employees ; that on that date its
assistant manager, Hernandez , again noticed Paula Adorno inattentive to her
job and not working properly ; and that it, therefore , laid her off as the first of a
number to be suspended.
1596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
No evidence was introduced to show that before her suspension Paula Adorno
had manifested the slightest interest in organizing the plant. All that is claimed
is: (1) In the noon hour of March 20, as she was walking across Martin Pina
Bridge, she happened to meet Rafael Rivera Mendoza who had been discharged
2 clays before and they stopped to talk; (2) while they were talking, Francisco
Cruz walked past; (3) that afternoon Cruz went to the office and talked to
Zubillaga ; and (4) when he cane out of the office, he looked toward Paula
Adorno and smiled. There is no evidence to show what Rivera Mendoza and
Paula Adorno were discussing, no evidence that Cruz heard their talk, no evidence
that he spoke about her to Zubillaga, or, if he did, what he said. Cruz denied
having made the alleged report to Zubillaga. I believe his denial.
That this evidence, even if credited, is insufficient to maintain the burden of
proof that Paula Adorno's suspension was discriminatorily motivated seems too
clear to require further comment. It is so found.
C. The meeting at Tomas Vasquez's house, March 20, 19117
In the noon hour, March 20, 1947, Rafael Rivera Mendoza met Jose Humberto
Rodriguez and told him to invite the employees to a meeting to be held im=
mediately after work that afternoon at Tomas Vasquez's house, in order
that he might have an opportunity to talk to them about union organization.
Rodriguez, on returning to the factory, gave Enrique Ortiz the job of passing
on the invitation to the workers in corrugado, to Jose Rivera de Leon that
of inviting those in plegadizo, and he undertook, himself, to notify those in
arinado.
The evidence does not show to whom the invitation was extended. About
28 or 30 attended and, according to Rodriguez, many others gave excuses for
not coming. The names of 20 are given : Mr. and Mrs. Tomas Vasquez,
Rafael Rivera Mendoza, Jose Humberto Rodriguez, Jose Rivera de Leon,
Samuel Ilurtado, Epifanio Gonzales, Luis Torres (Ramos), Concepcion Rosa,
Enrique and Virgilio Ortiz, Erasmo, Serafln, Roberto and Fernando Garcia,
Ezequiel Cepeda, Paula Adorno, Daniel Vasquez, Castor Cruz, and Juan Rondon.
Several of those who attended the meeting testified that when they were
on the way from the factory to the Vasquez house they looked back and saw
Francisco Cruz following them. None of them closely identified the point at
which this occurred. Neither (lid any witness claim that Cruz followed all
the way.
Francisco Cruz testified that lie, as well as Tomas Vasquez, lived toward
San Juan from the factory and that, consequently, for some distance both
used the same street until their routes diverged. He said that on the night of
March 20 lie left the factory with his wife to go home ; that while they were
on the way his wife commented on the fact that Paula Adorno was walking
with a group ahead of them and that she did not live in that direction ; that
he and his wife went directly to their home, following their then usual route;
that he did not follow the group or see where they went ; and that he did not
thereafter mention the matter to Zubillaga.
The evidence is insufficient to support a finding of surveillance.
At the meeting Rafael Rivera Mendoza talked about organization and what
steps should be taken to form a union. Then Samuel Hurtado moved that
since it was believed Paula Adorno and Rivera Mendoza had been disciplined
for union activity and that Francisco Cruz had spied on them, they should
agree that if any at the meeting should be discharged or suspended all would
walk out together. This was agreed.
PORTO RICO CONTAINER CORPORATION 1597
It should be noted that this agreement made no allowance for the normal
operation of Respondent's established suspension practices and did not con-
sider the possibility that some one of those it was designed to protect was
or would become liable to a disciplinary suspension.
D. The suspension of Enrique Ortiz, Virgilio Ortiz, and Concepcion Rosa,
March 21, 1947
Respondent admits that when the plant opened on the morning of March 21,
1947, the time cards of Enrique and Virgilio Ortiz and Concepcion Rosa were
not in the rack ; that when they discovered this they asked Zubillaga for the
reason; and that he informed there they were suspended.
On this showing the employees assumed and the General Counsel now seeks
a finding that the suspensions were motivated by the concerted activity of the
three.
The fact is established that these three were not the only ones suspended at
that time. Four others who had not attended the meeting and had not taken
any part in union activity were laid off at the same time. Incidentally, one of
the four was the wife of Francisco Cruz who General Counsel charges was a
supervisor and spied on the meeting at Tomas Vasquez.
Up to the time of that meeting the leaders in the organization movement in
Respondent's plant had been Rafael Rivera Mendoza, Jose Humberto Rodriguez,
Jose Rivera de Leon, Samuel Hurtado, and Epifanlo Gonzales. Not one of
General Counsel's witnesses named Enrique Ortiz, Virgilio Ortiz, or Concepcion
Rosa as one of the leaders before their suspension. All of the leaders were at
the Vasquez meeting. None of them were suspended or discharged.
To these facts must be added the established fact that Respondent at that
time was being forced by the conditions brought about by the railroad strike to
lay off a number of employees.
Moreover, it was shown that for some time Enrique and Virgilio Ortiz and
Concepcion Rosa had been neglecting their work to sell bolita tickets to their
fellow workers in the factory on working time; that Paulino Torres had warned
them against continuing the practice ; that they had neglected the warning and
that a day or two before their suspension he had recommend to Zubillaga they
be disciplined.'
On the basis of the evidence as a whole it is found that the burden of proof has
not been sustained that the suspensions of Enrique Ortiz, Virgilio Ortiz, or
Concepcion Rosa were discriminatorily motivated.
E. The walk-out, 7: 40 a. at., March 21, 1947
When Enrique Ortiz, on coming to work the morning after the meeting, learned
of his suspension, he told Jose Humberto Rodriguez and reminded him of the
agreement to go out in concert.
Rodriguez and Jose Rivera de Leon took advantage of the few minutes re-
maining before the bell rang to spread the word among the employees. The
'6 "Bolita" is a lottery, illegal under Puerto Rican law. It was referred to as the
Island's "numbers racket." In finding Enrique Ortiz, Virgilo Ortiz, and Concepcion Rosa
to have engaged in the sale of bolita, I do not credit the embroideries of the matter by
witness Rosalina Velez. The finding is based upon the testimony of Zubillaga and Paulino
Torres and the corroboration of the latter by the number who admitted buying bolita tickets
from one or more of the three.
1598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence shows that a number of them were advised and knew what was about
to happen, but does not show how many were informed or who were left in
ignorance.
A few minutes after the bell rang, at 7: 30, a number of the employees walked
out.
There is in the record evidence to support several different and inconsistent
theories of how the walkout was conducted. In fact, some of the witnesses
supported more than one inconsistent concept, giving equally strong adherence to
each. And of those who at this hearing confined their testimony to one view,
many were shown to have given earlier statements or evidence which was
thoroughly inconsistent with their present recollection.
One of the theories is that the employees went out, not voluntarily as part of a
deliberate, concerted movement but because they were stampeded by false shouts
of "Fire !" Another is that many of them were physically compelled by a few
strikers to leave their work, although against their own desires. And still a
third theory is that only a very few employees went out, whatever the
motivation.
A large number of witnesses testified that they heard shouts of "Fuego!
Fuego !" Some said the shouts came from downstairs, some from the back
stairway, some from upstairs. Some said there was a group of shouters, 20 or
more; some that there were 2 or 3; some that there was only 1; some that the
1 shouter was Enrique Ortiz. Some said that the group of shouters paraded
about the ground floor. Some denied this and said there was no parade
and no shouting except on the back stairway and upstairs. Of those who
remembered the ground floor parade, some had the shouters coming from the
front of the factory to the back stairs, some going from the back to the front
and out to the sidewalk, so that they apparently never got upstairs at all.
probably, such confused recollections are only to be expected of a moment of
excitement 2 years past, but there are other elements of this phase of the case
that seem harder to reconcile.
Out of the 65 witnesses who were present in the factory at the time of the
walkout, 26 were not interrogated about cries of "Fire !" and volunteered nothing
to indicate whether or not they heard them. Of the remainder, 12 did not
hear any such shouts and 27 testified that they did. All who say they heard
them are present employees of Respondent. But not all currently on Respond-
ent's payroll heard the cries. Upstairs, neither Ramirez, the foreman of plegar
rizo, nor Sanchez, that of armado, heard any cries of "Fire !" But they are
claimed to have been heard by Manuel Carmona and Arturo Lervold, although
they were further away than those foremen from the stairway whence the
cries were alleged to come and in another room. Downstairs, Zubillaga who
was in the front of the factory did not hear the shouts of "Fire!" Neither
Francisco Cruz nor Tomas Vasquez, who were in the rear of the building, heard
the shouts. Nor did Constancio Pacheco whose place of work was about the
center of the factory.
The testimony of many of the hearers as to their conduct on hearing "Fuego !
Fuego !" seems hard to reconcile, or to credit. Edmundo Carmona's first
thought was to see that the master switch was thrown. Many merely looked
up, saw no fire, and kept on at work ; evidently not noticing that the light and
power for the machines had been cut off. Others, on hearing the cries, imme-
diately went to look at the boiler and, seeing it was all right went back to work;
this in spite of the fact that a fire had occurred only a week or two earlier, not
PORTO RICO CONTAINER CORPORATION 1599
at the boiler but at one of the machines. The logical calmness and freedom from
excitability which the various witnesses claim to have exercised in this instance
seem wholly irreconcileable with either the impression left by their appearances
on the stand or with what the testimony shows was their attitude in other
moments of stress.
So far as the affair can now be reconstructed from the conflicting evidence,
what actually took place appears to have been about as follows : When Enrique
Ortiz was told by Zubillaga of his suspension he asked permission to come in
and get some clothes he had left there. This granted, he and Virgilio entered
through the truck yard into the corrugado, towards the rear of the building. As
they entered they set up a rallying cry "Come those who are with me!" or some
similar phrase. They were joined by some from corrugado and the group went
up the back stairs. On arriving at the second floor they marched through the
plegadizo and armado to the front stairway, immediately back of the office, still
repeating their rallying cry. As they marched they were joined by others and
when they reached the entry at the head of the front stairway they changed their
cry to "Nos vamos todos! We will all go !" which they repeated as they went down
the stairs to the sidewalk in front of the factory.
It is possible that some one or more of the marchers varied the rallying cry
with a shout of "Fuego ! Fuego !" but it is impossible to credit the claims that
a panic or stampede was caused. The testimony of Respondent's officers,
Hernandez and Lervold, makes it clear that the strikers left the upper floor in
reasonable order. It is clear that the overwhelming majority of them, if not
all, went out with knowledge they were participating in a "movement" and
not as a result of panic.
When the strikers reached the sidewalk, they stood in front of the factory for
a few minutes and then went in a group to Altagracia Morales' house.
There is an extreme conflict of testimony as to the number who walked out.
Respondent's witness Juanita Garcia said she saw "two or three go out from
downstairs." Respondent's witness Candida Lopez estimated the entire number
at no more than 10 or 15. Others, among them Zubillaga, estimated the number
of about 30. The General Counsel's witnesses agreed in estimates at about 80.
Manuel Carmona was asked to mark on lists of employees Respondent had
compiled those whom he knew had gone on strike that day. He marked 49 of
those listed as at work that morning, 5 listed as on vacation, and the 4 whose
suspensions have been discussed, a total of 58. On returning to the stand after
the lunch hour, he repudiated this testimony, claiming he had not understood
the question.
Disregarding his testimony, by comparing Respondent's payroll list for the
week ending March 20 with its payroll record of these who worked on March
21, deducting from both the 3 foremen ; Rafael Rivera Mendoza, who had been
discharged ; those out on vacation ; those out because of illness ; the suspended ;
and 2 who are shown by the evidence to have had special reasons for absence, not
connected with the matters in issue, it becomes apparent that 52 walked out
and that 48 remained. The 52 does not include Altagracia Morales or Nicolasa
Cruz who, as Respondent immediately learned, joined the strike that morning
although they were listed as on vacation. Nor does it include Paula Adorno,
Concepcion Rosa, Virgilio Ortiz, or Enrique Ortiz. Including them, the evidence
shows that 58 of Respondent's employees were on strike in the morning of
March 21.
1600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F. The meeting at Altagracia Morales' house, 8 to 11 a. m., March, 21, 1947
No credence is given the claims of those who testified that against their will
they were compelled , by physical force or economic threat, to go to or remain
at the meeting at Altagracia Morales' house, to which the strikers adjourned
immediately after the walkout.
All who testified they were so compelled were in Respondent 's employ and on
its payroll at the time of the hearing where they testified in the presence of
Respondent' s manager . Such facts are properly to be considered as militating
against the witnesses' credibility''
Further, their stories are refuted by the testimony of other of Respondent's
witnesses who showed that they had been free to stay away from the meeting,
or, having gone to it, to leave when they desired. Ovidia Morales testified that
since she did not want to go to the meeting she got on a bus and went home.
Narcisa Arias said that since she did not want to go she walked home. Josefa
Morales said that she went back to the factory rather than to go to the meeting.
Maria Luisa Melendez said she left the meeting and went home after about 15
minutes. Juan Rondon testified he left after about an hour. Sotera Rodriguez
Carrion said she went home about 10 o'clock.
It is found Respondent did not sustain the burden of proof of compulsion to
attend or to remain at the meeting.
Again there is a wide divergence of testimony as to the number present.
Candida Lopez estimated the number at only 10 to 15. Other of Respondent's
witnesses fixed the number at'25 to 30. General Counsel's witnesses uniformly
were sure the number present was about SO.
The record lists the names of a number. Omitting all as to whose presence
there was the slightest dispute, the list includes 38 named employees and 3 former
employees. This list was not claimed and is not believed to be complete. It is
merely the product of recollections 2 years old.
It seems probable that almost everyone who walked out of the factory that
morning went to the meeting. Those above named are the only ones shown
by the evidence to have failed to attend. In addition, there were at the meeting
4 and perhaps others of those who had been suspended. And there were l
and perhaps more-of employees on vacation. At its peak, the meeting's at-
tendance by present employees must have been about 55 and may have been
as great as 60 or even 65. This does not include Rafael Rivera Mendoza, Vin-
cente Reyes, or Angel Luis Pacheco who had been discharged for theft 2 or 3
months before the strike.
At the meeting it was voted to form a union. Raimundo Lebron, the presiiient
of the Transportation Workers' Union, was invited to advise on procedures to be
followed. Signatures were taken to an authorization of the Union to represent
the signers."
The Union voted that the members would not go back to work unless Re-
spondent reinstated Rafael Rivera Mendoza, Paula Adorna, Enrique Ortiz,
Virgilio Ortiz, and Concepcion Rosa and recognized the Union as the bargaining
representative of the employees. It selected a committee to inform Manager
Zubillaga and to open negotiations with him. That committee, according to
the written demand which it served upon Respondent, and which was signed
161. Spiewek & Sons, 71 NLRB 770 (1946).
17 This list of signatures was turned over to the Insular Board and was not produced in
evidence. General Counsel's witnesses testified that it had been signed by over 70. The
available evidence does not warrant belief that it bore that many signatures.
PORTO RICO CONTAINER CORPORATION 1601
by the committee members, was composed of Samuel Hurtado, Jose Rivera de
Leon, Angel Garcia, Jose Humberto Rodriguez, Nicolasa Cruz, Providencia
Garcia, and Altagracia Morales.
G. The conference between the committee and Manager Zubillaga
When the committee went to the factory to open negotiations with Respondent,
which it did about 10 a. in., March 21, it was accompanied by Rafael Rivera
Mendoza. Zubillaga refused to receive him and the Union's president, Rodriguez,
persuaded him to remain outside. The others went in.
Rodriguez, in his testimony, named Rivera Mendoza as a member of the
committee. If lie were, there can be no doubt but that Zubillaga' s insistence
on his exclusion was a denial of the right guaranteed to employees to bargain
through representatives of their own choosing and, in and of itself constituted
an unfair labor practice.
In spite of Rodriguez' testimony, I find that Rafael Rivera Mendoza was not
a duly selected member of the committee. Altagracia -Morales, in naming the
committee members, did not include Rivera Mendoza. Above all, the demand
served by the committee upon Zubillaga at the time does not bear his signature.
Since he was not a committee member, I find that Zubillaga's insistence upon
his exclusion from the conference was proper.
The conference was opened by Zubillaga who accused the strikers of ingrati-
tude, reminded the committee members of kindnesses he had shown them and
declared that every one of the employees who had walked out had forfeited
his job and that he would only reinstate such of the strikers who came to him
0one by one and justified their acts to his satisfaction. In answer to the Union's
written demand that he reinstate Rivera Mendoza, the two Ortizes, Concepcion
Rosa, and Paula Adorno, he gave a categorical denial. In answer to the demand
"as the representative of all the workers" that lie recognize the Union, he
turned to the employees who had remained at work and singling out one after
another demanded of him, "Does this union represent you?" Naturally, his
questioning brought forth only negative answers. Under the circumstances
every employee would have been justified of a fear that an answer in the
affirmative would mean that lie, too, must come back and face the boss alone
and explain his act before he could go back to work.
This interrogation seems clearly violative of Section 8 (a) (1) of the Act.
Respondent did not maintain its first intransigent attitude toward the Union
even throughout the conference. Zubillaga suggested that while he would not
take back the five whose reinstatement was desired, he would work with the
Union to determine whether it did in fact have the adherence of a majority and
that if it showed it had he would recognize it. Meanwhile, lie suggested that
the strikers should come back to work.
The committee carried Zubillaga's suggestions back to the Union which still
was waiting at Altagracia Morales' house. It sent the committee back to
Zubillaga with the message "Either all work or none work." And there the
matter rested for the time being, except that the Union immediately commenced
to picket the plant.
There must have been, that morning of March 21, serious doubts in the minds
of both the committee and Zubillaga where the majority lay. I have found
that a few more walked out than remained at work of those on duty that
morning. But there were several under temporary suspension, more on vaca-
tion, others who were on leave of absence or ill, some who were absent for
1602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the morning without explanation, and two or three at work away from the plant
making deliveries. Until the attitude of these employees could be discovered,
neither party could be positive of its majority status. Certainly, as matters
then stood, Zubillaga's challenge of the Union's majority cannot be found to have
been unreasonable.
II. The suspension of Luis Torres (Ramos)
On March 20, Torres told Hernandez he would not be at work the following
morning because he had to have his "stomach checked." He came in at noon
on the 21st and found that his card was not in the rack. He spoke to Carmona,
and later to Zubillaga about its absence. He said that he told Carmona "as
the employees went on strike I was not going to work that afternoon." Accord-
ing to his own testimony, Zubillaga asked : "Do you want to work?" And he
answered "we had already agreed not to continue working until they reinstate
the fellow workers who had been suspended."
That is the sum total of evidence in regard to the claim of his suspension.
It must be, and is found, that the burden of proving he was discriminatorily
suspended was not sustained.
1. The pay, and the deductions from it, March 21, 1947
Friday, March 21, was pay day and that afternoon all Respondent's employees,
strikers and nonstrikers alike, came in to receive the money they had earned
in the preceding workweek which ended the day before. It would be a profit-
less waste of time to itemize each employee's receipts and deductions. Re-
spondent's loan practices have been described. On March 21, when the em-o
ployees received their pay, this is what happened : All who had remained at
work were paid exactly as before. Those who owed the company $10, or $20, or
$30 had deducted the $1, $2, or $3 their loans called for. Those who had bor-
rowed from the bank $100 with the company's guarantee had $8.33 deducted,
if this happened to be the pay day in the month when that amount was deduct-
ible; otherwise, no deduction was made. But those who had gone on strike
and thus signified their adherence to the Union had a different treatment. The
deductions from their pay were not the small customary weekly or monthly
amounts, but the entire balance. Where that equalled or exceeded the week's
pay, they received empty envelopes. And this was true even though no pay-
ment was due that week. Thus, Jose Humberto Rodriguez had a $100 bank
loan which had been partly repaid, and on which he had made the monthly
payment due on March 14, so that on March 21 nothing was properly deductible,
under the terms of the loan. His balance due-although not presently due-
exceeded the amount of his week's pay and he received an empty envelope.
There can be no question of fact about this. Manuel Carmona stated that
it was done and stated that it was done pursuant to Zubillaga's orders. Those
orders he must have given early in the afternoon of the 21st, in time for the
office staff to make the changes they entailed in the amounts to be paid and
in the bookkeeping. It seems obvious he must have given them almost im-
mediately after the conference at which, according to his own account, he had
said he would recognize and deal with the Union provided it proved it had
the adherence of a majority. They must have followed immediately upon the
establishment of the picket line in front of the factory.
Zubillaga sought to justify the deductions made from the strikers' envelopes
by stating that when the strike occurred the company had a total of more
PORTO RICO CONTAINER CORPORATION 1603
than $3,000 outstanding in advances and guaranties against future pay; that
he did not know what was going to happen ; and that he ordered the deductions
to lessen the potential loss to the company and to protect himself against
criticism by his directors.
I am not convinced by his attempted justification of the act. I find that the
discrimination between the treatment given strikers and nonstrikers in this
matter was motivated by a desire to "punish" the former for joining the Union
or for their collective activity. It seems clearly violative of Section 8 (a) (1)
of the Act.
J. The Union's majority status
As has been stated , Respondent 's records show that 48, exclusive of the
3 foremen , remained at work on the morning of Friday , March 21, and that 52
walked out . The evidence shows that 3 of those who left the factory did not
go with the other strikers to Altagracia Morales' house . Narcisa Arias went
home . She later signed the union authorization . Sotera Rodriguez Carrien
went home and apparently had nothing to do with either side until the strike
was over . Ovidia Morales went home, had nothing to do with the Union there-
after , and went back to work on Monday afternoon . The 40 remaining were
immediately joined by 2 of the employees on vacation and by 4 of those who had
been suspended.
While the strikers , thus , were a majority of the employees at work that morn-
ing, they were not a majority of the entire roster. According to Respondent's
records , there were 16 on vacation, 10 out because of illness , a total of 12 em-
ployees out because of suspension , and 2 absent for some other reason. While
the General Counsel does not agree with Respondent 's numbers in all of these
categories , there is no doubt but that the number of all the absent on the morn-
ing of March 21, if all sided against the Union, would have been sufficient to
transform the Union 's majority of those at work that morning into a decided
minority of the entire employee roster. And there is no evidence to show, as
of that morning , what the attitude of these absent employees was to be.
Friday afternoon , the ranks of the strikers received an increase of three.
Luis Torres ( Ramos ) returned from his absence of the morning and joined them.
Narciso Colon Reyes and Carlos Rivera changed camp and went over to the
strikers.
Saturday was a holiday and the factory was closed . Over the week end, the
strikers sent a committee around to obtain signatures to a document headed :
We, the undersigned , hereby authorize the Union de Operarios , etc., as
our legitimate and exclusive representative , for the purpose of bargaining
collectively with our employer. . . .
Monday morning , when the factory reopened , only 37 reported for work. One
of them was Gertrudis Pagan, the remaining of the Friday temporary absentees.
Ten who had remained at work through Friday afternoon failed to return on
Monday. The signatures of 5 of them appear on the union authorization which
had been circulated over the week end: Guillermo Cruz, Josefa Morales, Con-
stancio Pacheco , Gilberto Perez Ruiz, and Rafael Nieves Rivera , nicknamed
Bacardi.
At the hearing , Guillermo Cruz testified that he did not sign the authoriza-
tion that Sunday, as claimed by General Counsel 's witnesses, but a couple of
weeks later ; that he did not stay from work thereafter because of union adher-
ence but because the strikers , by threat, compelled him to ; and that the only
reason he signed when he did was because of threats of personal harm.
S89227-51-vol. 89-102
1604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Josefa Morales testified that she signed the union authorization and thereafter
remained away from work only because of threats that unless she did so she
would lose her job.
Upon the impression made by these witnesses when on the stand, the patent
inconsistencies in their stories , and the general considerations a,ppiicable to all
the claims of force and fraud, to be discussed hereinafter, I do not credit either
of these witnesses. I find that both became adherents of the Union, as did the
other three above named, and that their signatures and their subsequent absences
from work were because of that fact.
So far as the record shows, Respondent (lid not know these five bad joined the
ranks of those represented by the Union, did not know that the other five Monday
absentees had not, and still did not know whether any of the vacationers.-other
than Altagracia Morales and Nicolasa Cruz,-any of the ill, or any of the sus-
pended, besides the four suspended the Thursday and Friday before, had joined
the strikers.
The union authorization shows that of those on vacation, in addition to the two
above named, Rosa Cosine, Maria Colon, Fernando Garcia, Sara Rivera, Guiller-
mina Parrilla, and Gerarde Mora Vidal signed. The evidence of the last named
is that he did not sign until 2 weeks later. The only attempted contradiction of
his testimony was to place the date of his signature still much later than he
claimed.
Of the sick, the union authorization was signed by Elionay Garcia, Laura Fe-
liciano, and Felicita Maura.
It was signed by two of those carried, on the lists prepared by Respondent and
admitted in evidence, as suspended: Julia Flores and Ernestina Arias. Also it
was signed by three others who had ceased to work for Respondent contemporane-
ously with the suspension of the two just above named but who were not referred
to on these lists: Rosa Maria Jiminez, Natividad Fuentes Velez, and Hilda Rojas
Montanez . All five had been suspended early in February "until .further notice"
and had not, thereafter, been recalled, even though the evidence shows Respondent
had found it necessary to work overtime since their suspensions were imposed. I
find none of the five was properly to be regarded as an employee at the time of
the strike.
Omitting them, omitting Gerardo Mora Vidal, since the record is silent regard-
ing his adherence to the Union at the time in question, and omitting 3, Itafaela
Otero, Sotera Rodriguez, and Maria Velez-who although absent from work
throughout the period of the strike did not otherwise manifest adherence to the
Union, either by signing the union authorization or the earlier pencil list, signed
at Altagracia Morales' meeting, the evidence shows the Union had Lite support of
68 of the employees. Their support, in the main, is doubly evidenced, by their
remaining from work through the time of the strike and by their signatures to
one or both union agreements.
The list of signatures the Union obtained, when presented in evidence, bore
7S signatures. But some were not employees. Rafael Rivera Mendoza bad been
discharged for cause before the strike; Vincente Reyes had been laid off for ill
health too long before the strike to warrant his being regarded as in ;auployee at
that time; Angel Luis Pacheco had been discharged for theft before the strike;
Mariano Molinary had resigned to take another job before it began.
How (lid the Union's strength of 68 compare with the number who remained
loyal to Respondent , or who, at least, are not shown to have given the Union
their support ? As we have seen, 37 reported for work on Monday morning and
PORTO RICO CONTAINER CORPORATION 1605
38 that afternoon. Another who was absent on Monday, Rafael Mesorani Nieves,
came back on Tuesday morning. Even with him, there were only 26 at work
that clay. However, on the record it cannot be claimed that any of the decrease
from Monday to Tuesday was because of union support on the part of any newly
absent that day. Thirty-nine manifested their nonadherence to the Union by
working in spite of the strike.
Three of the 39, men who worked throughout both Friday and Monday, signed
the union authorization : Gabino Sanjuro, Silvestre Merced, and Castor Cruz
Ayuso, All 3 admitted the signatures-Cruz doubtfully-but claimed they had
been obtained by threats of physical harm and loss of a job. One claimed his
signature was in fact of a date later than that of the strike and that testified
to by General Counsel's witnesses. Their evidence of the manner in which their
signatures were obtained was unsatisfactory. If it stood alone it would be in-
sufficient to support the burden of proof of compulsion. But it does not stand
alone. It is corroborated by the utter absence of evidence that any of the 3 gave
the Union any support by action, by the absence of evidence of adherence other
than the signature under dispute, by the unquestioned fact that all 3 continued
to work in spite of the strike and even though they had to go through the picket
line to do so. The signature list was not shown to Respondent until long after
the events in question . It could not have known, through it, these men were
claimed to be affiliated with the Union. All it had to judge by was the fact
that the men remained at their jobs in opposition to union desires. Nor could the
Union have been misled by the signatures into believing that the 3 were union
adherents. If it thought at the moment the signatures were given that it had
made converts to its cause, it must have been disillusioned the next morning when
its pickets saw the 3 returning to their jobs, crossing the picket line, and con-
tinuing at work as though no strike were in progress In the light of all the
facts in evidence, I find that these 3 cannot be counted toward a union majority,
They are, of course, included in the 37 already noted as nonunion. They are not
included in the 68 found to have shown that they desired the Union as their
representative.
To determine the number apparently not with the Union there must be added
to the 39 who remained at work those who were on vacation, sick, or under
suspension who manifested no support of the Union. Above have been noted
those in these categories who affirmatively adhered to the Union. Determina-
tion of its apparent opponents involves more than a mere problem in simple sub-
traction. Were all whom Respondent listed in each of the groups properly to be
regarded as employees at the time of the strike?
Respondent's records show 16 on vacation. As has been noted, 7 of them
immediately signified their adherence to the Union and have been included in
estimating the Union's strength. Of the 9 remaining, 1, Tevita Figuerea, cannot
be regarded as an employee. According to Zuhillaga's testimony, she had not
worked for the Company since September 1946. Since the Union has the burden
of proving its majority status at the time of its demand for recognition, the re-
maining 8-including Gerardo Mora Vidal, who manifested his support for the
Union too late-must be counted in the number opposed to the Union.
Respondent's records listed 10 persons as absent because of illness. The record
shows that Respondent had no established policy regarding sick leave. It would,
of course, be improper, in a question of union majority, to be bound by a policy
in which the employer can decide at his whim whether or not one is to be regarded
as an employee absent on sick leave, or as having lost his job and to make his
1606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
decision after the sick employee has shown a pro, or anti-union attitude. Yet
that is what appears here. Joaquina Fernandez left because of illness in Novem-
ber 1946; Vincente Reyes on February 6, 1947. Neither is carried on any list
of employees submitted at the hearing. One or both of Respondent's lists in-
clude Felicita Hernandez, Aurea Rexacb, Carmen Mlonclova, and Jose L. Figuerea.
The evidence shows that they left on account of illness, respectively, on February
7, 1947, February 7, 1947, January __, 1947, and September __, 1946.
Upon the same grounds upon which I sustained Respondent's challenge of the
inclusion of Vincente Reyes as a union adherent, I find that none of the four above
named should be counted as employees when estimating the union majority or
lack of it. Augustin Suarez, Victoria Leon-in spite of the fact that at the
hearing she testified she was prounion-and Celestino Davila are found to have
been employees at the time of the strike who manifested no adherence to the
Union and who are, therefore, properly to be counted against its majority.
The list prepared by Respondent and in evidence reflect that 12 employees were
under suspension in the period March 21-25, 1947. Evidence shows that 3
others-not named on either list-were suspended contemporaneously with 2 of
those named on one of the lists, early in February 1947. I have already found
that none of the 5 are properly to be regarded as employees as of the time of
the strike.
But Respondent lists as employees to be counted at that time two whom it
had suspended in December 1946. Respondent would differentiate the cases upon
the theory that these two, Santos Ramirez and Rafael Rodas, had been suspended
not "until further notice" but for a definite 3-month period, so that they would
be eligible to come back on a day certain shortly after the period in question.
It must have been realized by Respondent when it imposed these long suspensions
that it would be necessary for these men to obtain other employment in the time
of their layoff. The evidence is clear that Ramirez, at least, did obtain other
employment and was working for another company at the time of the strike.
To hold a union majority subject to the decision of men who had been away
from the factory for over 2 months, who were working for other employers, who
might or might not decide to return when the suspension ended seems unrea-
sonable. Particularly is it so where the facts are not a matter of record but
hidden in the Employer's knowledge so that the Union cannot know that men
who apparently have left and accepted other jobs are still to be regarded as
employees. I find that neither Santos Ramirez nor Rafael Rodas should be
regarded as an employee of Respondent at the time of the strike.
This leaves eight recently suspended employees to be regarded as properly
included in Respondent's employment roster on March 21, 1947. As has been
noted, four of them joined the strike at its inception. None of the other four
manifested any union adherence. They must be regarded as antiunion.
If to those above enumerated there be added the 3 who walked out with the
others on Friday morning and did not report back for work at any time during
the strike but who did nothing further and signed nothing to show they had
adopted the Union as their representative, it appears there were 57 employees
to be regarded as opposed to the Union.
Thus, there appears a total of 6S for the Union and 57 opposed to it.
In opposition to this appearance of a union majority, Respondent has objected
to the inclusion of 13 whom I have found on the evidence to have manifested
their union adherence.
PORTO RICO CONTAINER CORPORATION 1607
It has sought to claim that the adherence of General Counsel's witness, Amelia
Rosario Velasquez, was not voluntary, but the result of compulsion. When
on the stand, the witness testified to her union activity and loyalty. To impeach
her, Respondent introduced a letter she had written to Assistant Manager Her-
nandez, under date of November 21, 1947, seeking reemployment, and an affi-
davit she had executed before a notary who was also one of Respondent's coun-
sel, bearing date of November 27, 1947. In these she stated : (a) Her participa-
tion in the walkout; (b) her appearance and testimony before the Insular
Board; (c) her signature to the union authorization; and (d) her other partici-
pations in the strike were the result of compulsion by threat of physical harm,
and that her contradictory statements to the Insular Board were false. These
documents proved, quite conclusively, that the witness' word was thoroughly
unreliable. Of course, they are not evidence of the facts they purport to assert.
And to destroy the witness' credibility and at the same time urge I should accept
her former statements as proof of fact is to argue an absurdity. Her prounion
testimony is rejected. Her earlier antiunion, ex parte statements, except for
their bearing on her credibility are ignored.
Respondent called as witnesses, Guillermo Cruz, Ismael Carreras, Carlos
Ortiz, Daniel Vasquez, Carlos Rodriguez, Aurea Cruz, Josefa Morales, Narcisa
Arias, Petra Alicano, Maria Luisa Melendez, Castor Cruz Ayuso, Gabino San-
jurjo, Juan Rondon, Silvestre Merced, and Candida Lopez. Each repudiated
his signature to the union authorization as not voluntarily given, claimed that
so far as he participated in the strike his acts had been not voluntary but the
result of compulsion, and disavowed the Union.
Certain considerations are common to all 15 of these witnesses and their
testimony. (1) All were rehired by Respondent after the strike, were on its
payroll at the time of the hearing, had been instructed at the factory to appear
and testify, "because Don Santos needs you," and testified in the presence of its
manager, this same "Don Santos." (2) Each testified to one or more instances
of threats against himself to compel him to prounion action, but no corrobora-
tion was offered of any one of them, even though the testimony regarding some
of the allegations indicated that others were present when the threats were
made, if they were made. (3) The testimony of each, at one or more points,
in some cases at many points, contained strong improbabilities, sometimes com-
plete impossibilities and absolute self contradictions. (4) All were vague as to
details of the alleged threats. "They" threatened. Insistence on who had
been guilty almost uniformly brought a recital of a list of names, including
substantially all the strike leaders. (5) All these witnesses were strongly led
by counsel and interrogated through questions definitely suggestive of the
answers desired. Repeatedly, I called to counsel's attention that the phrase-
ology of the questions was not conducive to belief in or reliance upon the wit-
ness' answers. Over and over, the reply was that the leading character of the
interrogation was required by the low mentality of the witness and his lack
of education.
The points at which compulsion was alleged to have been applied covered the
entire course of the strike and the proceedings before the Insular Board. Sev-
eral, including Carlos Rodriguez and Daniel Vasquez who worked in the cor-
rugado, claimed they were forced to join the walkout. The evidence is clear
that a majority of those in corrugado stayed at their jobs. Candida Lopez
worked upstairs, where almost everyone left. But she told two inconsistent
stories, (a) that she was pushed from her work by force, and (b) that she was
1608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
frightened by the cries of fire and ran away. Carlos Rodriguez and Daniel
Vasquez claimed that they were compelled by force to attend the meeting at
Altagracia Morales' house. Sotera Rodriguez Carrion, Narcisa Arias, and
Ovidia Morales, after they walked out with the others, went their way, and did
not attend the union meeting. Several said they signed for the Union at that
meeting, not because it was their desire but because they were forced to do so.
Candida Lopez, Maria Luisa Melendez, and others testified that at the meeting
they were asked to sign and refused to do so. Petra Alicano agreed with the
others at the Altagracia Morales' meeting that it lasted from about 8 a. in. until
almost noon, at least 3 or 31/ hours. Carlos Rodriguez and Daniel Vasquez said
that the gates were locked and the attendants at the meeting were compelled to
stay. Maria Luisa Melendez left after only a few minutes ; Juan Rondon at the
end of an hour. Even Daniel Vasquez left after half an hour. None went back
to their jobs. Rodriguez admits that lie went back in front of the factory, was
alone, the picket line had not yet been instituted, but he decided not to go in
although there remained 2 hours before time to quit for lunch. All but 3 of these
witnesses stayed away from work throughout the strike. All claim they did this
not voluntarily but because they were compelled by threat to do so. The 3,
Castor Cruz Ayuso, Gabino Sanjurjo, and Silvestre Merced went back to their
jobs throughout the strike, as did 36 others of Respondent's employees. When it
is shown that others with impunity refused to act in accordance with the Union's
desires it is hard to credit the claims of the reemployed that their following of the
union line was because of compulsion.
Many of the 15 reemployed, before their reemployment, had given prounion
statements to the Insular Board. Uniformly, they sought to explain these away
by statements that their contents had been dictated by the union leaders and that
their mandates had been followed only because of threats. Candida Lopez was
one of these. She testified at the hearing that on the afternoon following the
meeting at Altagracia Morales' house, she drew her pay and immediately left for
the country where she stayed, for 3 weeks. She said that before leaving, she
obeyed the orders of the Union's leaders and gave a statement to the Insular
Board. That statement contains references to a matter which did not occur until
March 25. Later she changed the date when she left for the country until March
27 or 28. The Insular Board's statement bears date of April 2. Daniel Vasquez
was another. He appeared at the Insular Board on April 1. He was most
positive that it was on the afternoon of March 24 that he was given detailed
instructions as to what he had to say ; including an account of the Fiol Street
fight which did not take place until March 25.
No further illustrations need be given of the unreliability of these witnesses
and the stories they told. There' can be no doubt, after considering the entire
record, but that the strike was carried on in an aura of at least minor violence
and of violent language, on the part of both strikers and nonstrikers. In such a
situation, doubtless, the less hardy and courageous felt themselves coerced from
time to time by one side or the other, perhaps by both. Amelia Rosario Velesquez
described herself as "a very coward woman." Daniel Vasquez said lie was not
"a man to fight." Others referred in different ways to their own timidity. They
all appear to have been exceedingly responsive to suggestion and to the pressure
which results when all about one support a given course of action and opposition
seems unpopular. During the strike these witnesses followed the Union's leaders.
Now, back in Respondent's employ, working with those who were nonstrikers,
under the daily supervision of men bound to Respondent's interest, with their
PORTO RICO CONTAINER CORPORATION 1609
own economic interests dependent upon maintaining Respondent's continuing
approval and conscious that they once imperiled them by supporting the Union,
they remember their strike-time actions not as results of their own volition but as
products of forces outside their own control. Surely, at the very least, their
testimony is subject to the suspicion that it is the product of the same type of
environmental pressure, now that they are of Respondent, as was that which
produced their adherence to the other side at the time of the strike when they
were of the Union.
As has been noted many of the points to which they testified are physiological
and chronological impossibilities. Others cannot be credited except upon an
assumption that the Insular Board was staffed by knaves or fools, incompetents
or rascals, and that the National Board investigator deliberately misled the
witnesses and misreported their statements. There appears no basis in fact
for such assumptions.
All 15 of these witnesses gave their signatures to the union authorization.
Three of them kept on at their jobs and by so doing gave the signatures, in some
degree, a timely refutation. Those three I have counted as against the Union, in
spite of their signatures.
The other 12 not only gave their signatures but corroborated them by striking
and cooperating in various prounion acts. Never, until 2 years later did they
appear to repudiate their signatures and disavow their strike-time conduct.
Respondent has the burden of sustaining its allegation their signatures, their
participation in the strike, their cooperation in the prounion acts were the result
of force or fraud. That burden cannot be sustained by evidence of the quality
of that given through these witnesses.
I find that all 12 should be regarded as union adherents at the time of the
Strike.
But although it now can be demonstrated, by the use of the union-authorization
agreement, that more than half of Respondent's total roster of employees had
designated the Union as their bargaining agent, it seems equally clear that at
least in the early part of the strike Respondent was justified of doubts of that
fact. Respondent, it must be remembered, was not shown the list of union
signatures. So far as the evidence shows, it did not even know of the existence
of the second list.
It knew, on Monday, March 24, that 3S of the employees were still at work, in
spite of the Union and its picket line. It knew that more than that number had
gone out and remained away from work. But even of these, it was justified in
believing some were not for the Union. The only ones Respondent then was coin-
pelled to accept as prounion, of those who walked out and, more clearly, of those
entitled to be absent from duty because of vacations, illness, or suspensions, were
those it could see on the picket line or otherwise demonstrating against the
company and its workers. The evidence was positive regarding a number of the
Union's members that they never participated in picketing or union demonstra-
tions. Regarding others, the evidence is in dispute, or doubtful, on this point.
Regarding many more, the record is wholly silent. Over the period, March 21-25,
the record does not definitely state, by name, more than 30 as picketers or partici-
pants in overt union action. It affords no basis for assuming that an appreciably
greater number of the employees than that, named and unnamed, were overt
actors.
On the record, it must be found that through Monday, March 24, there was room
for reasonable doubt on Respondent's part that the Union did, in fact, represent a
majority of its employees.
1610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
K. The further negotiations of the week of March 21,
On the afternoon of Friday, 'March 21, Zubillaga was asked by Goldsmith, a
Federal conciliator, to attend a meeting at the offices of the Insular Board on
Monday morning, March 24.
He attended as Respondent's sole representative. When he arrived, he found
about 10 strikers present as representatives of the Union: Jose Humberto Rodri-
quez, Jose Rivera de Leon, Samuel Hurtado, Enrique Ortiz, Virgilio Ortiz, Con-
cepcion Rosa, Paula Adorno, Providencia Garcia, Rafael Rivera Mendoza, and
possibly 1 or 2 others. This union delegation was accompanied by Raimundo
Lebron, the president of the Chauffeurs and Mechanics Union, who was there
in the capacity of their adviser.
In addition to Goldsmith, Pedro Brull, field examiner for the Insular Board,
and Francisco Berdiales, Insular conciliator, were present.
The evidence indicates that the conference, or at least the discussion between
Goldsmith and Zubillaga which contains the matter most important for our
present considerations, was carried on in English. From observation of the
union representatives who testified at the hearing it is to be doubted that they
could have followed the discussion with accuracy. All speak English to some
extent and understand it to an even greater degree but it does not seem probable
to an extent to follow such a discussion as the one being considered. Whatever
the reason, the union representatives who testified concerning the meeting gave
extremely unsatisfactory and disconnected accounts. On certain points they
were vague and seemed unsure. On others, I find their accounts incredible.
Neither party called Goldsmith, Brull, Berdiales, or Lebron to give an account
of the meeting, to corroborate or to refute any of the conflicting claims of what
there occurred.
Zubillaga gave a connected and consistent account of the conference, one
which is corroborated at certain points by matters of record. He gave his testi-
mony concerning it in a manner which carried conviction. In the main, I accept
his report of the conference.
Goldsmith opened the matter by suggesting that both parties should yield some-
what and see if they could not agree upon a middle point. He asked Zubillaga
if Respondent, as a step toward doing so, would pay the strikers the amounts that
had been deducted from their pay envelopes the preceding Friday.
Either this had been mentioned in the call arranging the conference, or for
some other reason Respondent had changed its attitude in regard to some of these
deductions. Zubillaga had with him checks in the amounts deducted from
some, but not all, and then and there tendered them to the union representatives.
He followed this by an offer to reduce to 1 week the suspensions imposed the
previous week so that all would be able to return to their jobs on the next
Friday, only 4 days later.
He absolutely refused to reinstate Rafael Rivera Mendoza, saying that he
had been discharged for cause and that the matter was not one open to negotiation.
He insisted that the only way in which this reinstatement would be made would
be by order of the Insular Board, if it, after full hearing, should find he had been
discharged wrongfully.
He stated that he did not believe the Union represented a majority and that
unless he was convinced that it did he would not recognize or deal with it.
Goldsmith asked if he would consent to an immediate election to determine the
Union's majority status, to be held that week. Zubillaga agreed to this and
promised that if the Union won the election he would recognize it as the bar-
gaining representative.
PORTO RICO CONTAINER CORPORATION 1611
Of these concessions, the tender of the checks was absolute. The reduction
of the suspensions and the consent to the election were conditioned upon the
abandonment of the strike.
The union representatives asked for an adjournment of a few minutes in order
that they might discuss Respondent's offers of compromise among themselves.
When they returned they declared themselves without authority to accept and
said the matter would have to be submitted to a general meeting of the Union.
The conference broke up on this statement and a promise by the Union that it
would inform Goldsmith of the Union's decision. No direct answer was ever
given.
The Union refused the tendered checks and later mailed them back to
Respondent.
On the morning of the conference and before it opened, the Union wrote
Respondent announcing its organization and again asking recognition and the
negotiation of a collective bargaining agreement. The letter ended, "We grant
you until Wednesday at 10: 00 a. m. to answer our requests." The letter offered
no proof of majority status. In fact, it did not even refer to the question of
majority. This letter was not received until some time after the conference
ended.
Respondent did not answer this letter until Thursday, March 27. Before it
did so, certain things happened which changed the situation.
On March 25 Respondent discharged IS of the strikers and on March 27, 6 more,
upon the claim that they had engaged in acts of wrongful violence in their
conduct of the strike.
Respondent's answer to the Union's letter read:
In reply to your letter of the 24th of March, we advise you that this com-
pany would be pleased in recognizing as collective bargaining unit any organ-
ization that shows us that represents, at the time of the election, the majority
of the bona fide employees of this company having been certified as to that
by the pertinent legal means.
For the purposes of this election this company shall insist that the same
be held at such a time in which all employees can attend to such election,
including those who are now hospitalized due to the injuries suffered in the
course of their employment and also this company does not recognize as
employees for all pertinent means those persons that have been discharged
and, therefore, have lost their status as employees when they incurred in
acts of violence and destroyed property.
Inasmuch as all 24 thus discharged were active members of the Union and
there were included in the number nearly all the leaders of the organization,
it clearly appears that a consent to an election thus conditioned was only a
consent to one in which the outcome of union defeat was certain.
A blanket discharge of a fifth of the entire employee roster, taken all from
the ranks of union members, immediately after a demand for an election and
immediately before consenting to that demand, and the insistence upon the condi-
tion that none so discharged should be eligible to vote, creates more than a mere
suspicion of bad faith, an inference only to be removed in the event Respondent
is able to make good its allegations of such illegal violence as to justify the
discharges.
The Union apparently gave no immediate answer to Respondent's thus condi-
tioned consent.
Before further negotiations were had, the picture changed still further.
1612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
L. The events of Tuesday, March 25, 19/7
Although General Counsel's witnesses quite uniformly testified that the strike
was "very peaceful," it is apparent that a certain amount of violence accompanied
it from the beginning. Although Respondent made much of the claimed "acts
of violence," it is equally apparent that, at least until Tuesday, March 25, they
were of a trivial nature, more irritating than damaging. Of those which occurred
before Goldsmith's attempted settlement conference, it is clear that Zubillaga
did not find them of enough importance to mention.
But on Tuesday morning, at about time for the factory to open, in addition to
a fist fight near the Martin Pina Bridge, a battle occurred on Fiol Street between
a group of employees on their way to work and a group of strikers, two of whom
were armed with lengths of pipe. In this Fiol Street fight, two of the workers
were seriously injured and two others less seriously, but still sufficiently that
hospitalization was necessary. As a result of the battle, a number of both strikers
and nonstrikers were arrested.
When the factory opened, the absences of the injured, the jailed, and those
afraid to come so decimated the working force that there were only 26 present.
At about 10 o'clock, Zubillaga called the workers together and informed them
he was going to close the plant and keep it closed until he obtained the protection
of an injunction to prevent further assaults, such as had occurred that morning.
He testified that there were about 45 there ; that he could have kept the factory
in operation ; and that his only reason for closing it was to prevent further blood-
shed. The payroll record for the day contradicts him as to the number present.
As stated, it lists only 26. This, of course, creates doubt that the closing was
solely for the protection of the workers. It indicates that there were not enough
present to man the factory. It suggests that Respondent having had a continuing
decline in the number of workers since the outset of the strike-48 Friday morn-
ing, 46 that afternoon, 37 Monday, and now on Tuesday, 26-was afraid of still
further losses which would make yielding to the strikers' demands inescapable.
Zubillaga told his remaining workers that he wanted them to remain in San
Juan and available to return on call and, so that they would be able to do so,
Respondent would pay all who had remained loyal and not gone out on strike
for 40 hours a week throughout the time the plant remained closed. Two of
General Counsel's witnesses testified that he made a further promise of a guar-
antee of employment for 5 years to all who did not join the strikers. This was
denied by a large number of those present. I do not believe this further promise
was made.
At that time the street in front of the factory was crowded with strikers, men
on strike at other plants in the neighborhood, members of the Chauffeurs and
Mechanics Union whose hall was only a few yards away, and an audience of
bystanders. Corporal Pablo Arbono estimated the number there at more than
200, and with a little urging at more than 300. Foreman Paulino Torres esti-
mated it at about 500.
In order to get his workers past the strikers, Zubillaga decided to use the three
automobiles he had available, his own and those of Paulino Torres and Assistant
Manager Hernandez, and by making as many trips back and forth as necessary,
to convey all the workers to points of safety beyond the zone of action. The
record does not show how many trips were made by any one of the three cars.
There is no evidence that any of the cars were attacked except one, on one trip.
Hernandez' car, driven by mechanic Francisco Rosado Cartagena was starting
from the factory taking five or six strikers when a thermos bottle and some stones
PORTO RICO 'CONTAINER CORPORATION 1613
were thrown at it. The windshield and the right ventilator window were cracked.
No one was injured . No criminal charges were presented against anyone and
nobody was arrested because of this incident . There were a number of police-
men present at the time . Their failure to report the affair , Corporal Arbona
testified , was because Zubillaga told him to ignore it.
The factory remained closed for nearly a month. Late in April. it was opened
to make deliveries of boxes completed before the closing and a few days later
was fully opened and production resumed. By that time an injunction had been
obtained.
M. The discharge of 26 strikers
On Tuesday, March 25, Respondent sent letters to 1S of the strikers, informing
them that they were discharged. The recipients were : Enrique Ortiz, Erasmo
Garcia, Serafin Garcia, Ezequiel Cepeda, Jose Rivera de Leon, Angel Garcia,
Roberto Garcia, Zenon Lopez, Benjamin Lopez, Ramon Garcia, Carlos Rivera
(Jockey), Fernando Garcia, Felix Diaz Castro, Francisco Fernandez (Cruz),
Carlos Rodriguez, Luis Torres (Ramos), Samuel Hurtado, and Daniel Vasquez.
Two days later, these letters were followed by similar letters to six more :
Concepcion Rosa, Altagracia Morales, Juana Colon, Sara Rivera, Ramona Tivent,
and Candida Lopez.
On April 1, a similar letter of discharge went to Virgilio Ortiz and, on April
22, following an incident to be referred to hereinafter, to Paula Adorno.
All the letters, except those to Ezequiel Cepeda, Fernando Garcia, and Daniel
Vasquez, were identical in content. The parties differed as to the correct trans-
lation of the phrase "constitutivos de delito." General Counsel interpreted this
to mean "consisting of felonies" ; Respondent as "which constitute crimes." It
is believed the word "delito" is rather the equivalent of the English word and
civil law term "delict," to be defined as "those small offenses which are punished
by a small fine or a short imprisonment." The word "felonies" seems erroneous ;
"Crimes" should be understood in the sense of meaning "misdemeanors." The
letter reads,
Due to acts of violence which constitute crimes, committed by you against
other employees of this plant as a result of the prevailing strike, you are
hereby discharged as employee of this company.
The letter to Ezequiel Cepeda, Fernando Garcia, and Daniel Vasquez followed
the quoted paragraph by a second :
As an additional reason for this discharge, we base ourselves too in that
you maliciously destroyed certain property of this company, to wit: the locks
of the in and out gates of the trucks which deliver the finished material.
N. Asooiacion Unica de Empleados de Porto Rico Container Corporation
This organization was not named as a party, was not served with copies of the
charge, the complaint, the notice of hearing, or any of the papers in the proceeding,
and was not represented. It did not intervene. Its president, Francisco Rosado
Cartagena and its secretary, Avelino Barreto, were called as witnesses.
Rosado and Barreto were the active organizers of the Asociacion Unica.
Rosario, it will be remembered, was Respondent's mechanic ; on the second highest
weekly salary in the factory, and with a 1046 bonus of $1,200, three times as
much as that of Foreman Ramirez and four times that of Foreman Sanchez.
He is the brother-in-law of Assistant Manager Hernandez.
1614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Barreto was Respondent's salesman and bill collector before he entered mili-
tary service, with a desk in the same office with Zubillaga and Hernandez.
When he came back from the army in 1946, there was, temporarily, no need for
the services of a full-time salesman. He acted as an assistant shipping clerk
and as truck checker, part of the time. The evidence is uncertain as to what
proportion of his time Barreto spent on each of his various duties. But even if
it be assumed that throughout the period from his return in 1946 until the strike,
substantially all his time was spent in the shop rather than the office, there still
is no possibility of question but that he identified himself with the office. His
affiliations were with management, not with the rank-and-file shop workers.
He realized his work in the shop was a temporary assignment and that his future
in the company was as an office worker. He received a weekly salary greater
than that of either Ramirez or Sanchez and, considering his short period of
service with Respondent in 1946, a large bonus.
Both Rosario and Barreto claimed to be close friends and intimates of Zubil-
laga. Rosado testified that he, Barreto, and Jose Britton, the Asociacion's treas-
urer, drop in at Zubillaga's house whenever they want to visit or get a drink.
"That is our house," was Rosado's phrase.
The first meeting to organize the Asociacion was held at Rosado's home on
March 28 or 29, 1947, within a week after the Union demanded recognition. Its
formal organization and its election of officers was on April 1, 1947.
According to Rosado, the Asociacion had no constitution. Its purpose he said
was to negotiate a contract with the Employer covering wages and working
conditions, to better employment relations, and to help members in need.
Many of the employees who admitted to membership and were asked about its
purpose seemed extremely doubtful except as to the purpose of opposing the
strikers.
On April 6, 1947, the Asociacion wrote Respondent demanding recognition as
the bargaining agent of the factory's employees. Respondent answered that
it would recognize whatever union could prove its majority status in an election.
From that day to this, the Asociacion has made no move, the excuse for the
inaction being, of course, the pendency of this proceeding and the rival claims
of the Union to be the exclusive bargaining agent.
Rosado said the Asociacion had held 3 or 4 meetings ; Barreto that it had
held 15 or 20. Barreto said that he as secretary entered the minutes of the
meetings and turned them over to Rosado to keep. Rosado said he has no
papers in his possession.
Both agreed there had been no meetings for a long time. Barreto said none
for 15 or 18 months. The hearing at which he said this started 23 months after
the strike.
Eugenio Medina, one of the Asociacion's minor officers, testified that each
prospective member was required to sign a statement reading:
I am a bona fide employee of Porto Rico Container Corporation and I have
never picketed and I have not gone on strike.
Rosado testified that the members of the Asociacion came to an agreement
that the "aggressors" should not be allowed to come back to work ; and that
its members "would not work together with those that nearly killed our co-
workers."
Barreto said:
A striker was eligible to be a member providing they were not those that
criminally wounded our co-workers that Tuesday the factory was closed.
PORTO RICO CONTAINER CORPORATION 1615
In answer to the question who was to determine which strikers were guilty
of criminal assaults , he said "The ones that had received the blows," and went
on to explain that a judicial determination of innocence would make no differ-
ence in the striker's ineligibility if the nonstriker who claimed to have been
assaulted did not approve of his admission.
Barreto definitely listed as ineligible : Enrique Ortiz, Luis Torres, Jose Rivera
de Leon, Roberto Garcia, Ramon Garcia, Fernando Garcia, Altagracia Morales,
Concepcion Rosa, and Virgilio Ortiz. As to several others he said he was
uncertain.
There is evidence that the Asociacion, on occasion, collected dues on com-
pany property, on company time ; but also evidence contradicting this. There
is evidence that Asociacion organizers represented to some employees that they
could not hold jobs with Respondent unless they joined. There is evidence that
the Asociacion solicited funds from some of the customers of Respondent. It
is admitted that on one occasion Respondent's trucks were used to convey
Asociacion members to an Insular Board hearing. But there is no sufficient
basis of evidence to show that any of these acts were with Respondent's knowledge
and consent or done under such circumstances that Respondent can be held to
knowledge.
But without that evidence, it is clear from the record that the Asociacion
Unica was a mere puppet ; a creature of Respondent's, created solely for the
purpose of destroying the Union. It was organized not by rank-and-file em-
ployees but by the two in the plant, not holding supervisory positions, who were
closest to management. No one reading the record can believe that either Rosado
or Barreto would act in opposition to Zubillaga, or against his wishes. The
Asociacion was formed by these two friends of Respondent's management only
a day or two after the Union had demanded recognition and the negotiation of
a collective bargaining agreement. It was kept exceedingly active throughout
the first months after the strike. As soon as the crisis of that period was past,
it was allowed to die. Its only major interest to date is to support the manage-
ment's position in regard to the discharge of the strikers.
On the facts, it must be held the Asociacion Unica is company dominated.
0. The further negotiations for settlement
Through April and well into May 1947, the Insular Board persisted in efforts
to bring about a settlement, with the situation complicated by the claims of
Asociacion Unica.
At a meeting between the Union and the Asociacion held early in April, the
differences between them were found to be irreconcilable, since the latter wholly
adopted Respondent's position that the discharged strikers were no longer em-
ployees and, hence, ineligible to participate in the selection of a bargaining agent.
Following that meeting, the Union wrote Respondent on April 10:
Our position was and is that we will only arrive to an agreement if all go
back to work in the same conditions as before the strike, until the Labor
Relations Board submits its final order, which the Union represented by us
is willing to accept.
Under date of May 13, 1947, Respondent wrote Field Examiner Brull of the
Insular Board, stating that in order to cooperate, it would agree to take back
all of those discharged for acts of violence, except Luis Torres, Enrique Ortiz,
Ramon Garcia, Carlos Rodriguez, Carlos Rivera, Ezequiel Cepeda, Francisco
1616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fernandez , Erasmo Garcia , Ramona Tivent . Paula Adorno , Juana Colon, Fer-
nando Garcia , Roberto Garcia , Altagracia Morales, Zenon Lopez , and Jose Rivera
de Leon.
In spite of denials by some of the dischargees not thus excepted , it is found.
that the offer of reinstatement came immediately to their notice . Immediately
after writing Field Examiner Brull, Respondent wrote directly to Felix Diaz
Castro, Serafin Garcia. , Samuel Hurtado , Angel Garcia , Benjamin Lopez, Daniel
Vasquez , Concepcion Rosa, Sara Rivera, Candida Lopez . and Virgilio Ortiz.
Later, February 27, 1948, Respondent offered reinstatement to Erasmo Garcia
and Ramona Tivent.
The letter sent to the first 10 opened with the paragraph :
Desiring to cooperate with Mr. Brill of the Insular Labor Relations Board,
we have decided to give you another opportunity to return to your work in
our plant , trusting that you will not incur again in the motives which you
gave for your former destitution.
Three of the recipients of this offer of "another opportunity " accepted it-
Felix Diaz Castro , Daniel Vasquez , and Candida Lopez. The others apparently
ignored it or left it for the Union to reply . On May 14, it answered the offer in
a letter the substance of which was contained in the one sentence "Either all of
us work, or nobody works."
Respondent 's offer of reinstatement to the 12 above n amed requires comment.
Three points should be noted. ( 1) The phraseology of the letter makes it ap-
parent that Respondent in no degree admitted error. The onus was placed upon
the employee who was warned not to repeat his offense . If he accepted the offer
made in this form , he, in substance admitted that he had been wrong . Clearly,
he was only invited to come back with a black mark against his record. (2)
No offer of back pay was made for the 6 weeks of lost wages . Nor was it pro-
posed that the employee could return to his job and leave the issue of back pay for
decision by the Insular Board. In the absence of all mention , in view of the
wording of the letter , it must be taken that acceptance of the offer of reinstate-
ment was conditioned upon surrender of all claims for wages for the period
following the strike . In this connection it should be remembered that Respondent
had paid the nonstrikers throughout the time the factory was closed. (3) The
offer of reinstatement was made only to a minority of those who had walked out
and formed the Union . The number excepted-as well as the fact that in the
group were all the leaders of the concerted action-made it apparent there would
be no chance of the Union in the plant . Thus , those to whom the offer was made
were, in substance , offered their jobs back upon condition they gave up their
union affiliation.
It is clear, the offer made by Respondent to reinstate these 12 can only be
regarded as a conditional, not an absolute , one.'8
Since the rejection of this offer by the Union, there has been no change in the
attitude of either Union or Respondent.
P. The acts of violence and the discharges
It may make for clarity if, even at the risk of repetition, the circumstances be
summarized in which Respondent on March 25 and 27 discharged 24 of the
strikers, alleging as the reason in each case that the employee had committed
acts of violence "which constitute crimes."
11 N. L. R. B. v. Poultrymen 's Service Corporation, 138 F. ( 2d) 204 ( 1943).
PORTO RICO CONTAINER CORPORATION 1617
According to Zubillaga's own report, on the morning of March 24 he, for
Respondent, agreed to recognize the Union, if shown it had a majority; and
Conciliator Goldsmith suggested that an election be held later that same week
to settle the question. The next day Respondent sent letters of discharge
to 16 strikers. Two days later he sent similar letters to 6 more and at the same
time wrote the Union that the election would have to be postponed until 4
hospitalized employees could return to vote, and that all the dischargees must
be held ineligible to participate in the election. That number withdrawn from
the Union's ranks would make union defeat at the election a certainty ; a fact
so apparent that Respondent must be held to have had full appreciation of it and
to have written its letter in the light of that knowledge.
Proof of the facts thus outlined seems clearly sufficient to make a prima facie
showing of discriminatory motivation on Respondent's part and to impose on it
the burden of going forward with the proof in justification of its actions.
This burden Respondent undertook to sustain in 2 ways. (1) By proving
that the Union, officially and formally in its meetings, deliberately proposed
and adopted as a strike tactic a campaign of violence. (2) By proving that each
of the 24 dischargees had been guilty of illegal violence warranting his discharge.
Respondent undertook to prove that the Union created a "Comite do Sob)"-
an assault committee or "goon squad"- to beat up all who opposed the strike.
The only witnesses to testify to the formation of such a committee were Daniel
Vasquez and Josefa Morales, two who had been strikers and later went back
to work for Respondent. I have already stated my lack of belief in their testi-
mony on other points. I discredit them on this. The falsity of their statements
is proved by the facts. There was no armed committee. There was no campaign
of violence. There were some fist fights. There was some stone throwing-
on one morning. There was only one fight to which anyone carried weapons.
In that, two strikers had pieces of pipe and one nonstriker had a gun. There
were only four workers injured, all in that one tight. There was little property
damage. Rdinundo Carmona's glasses were broken. the windshield and a window
on Hernandez ' car were cracked, and a padlock was ruined . The last, incident-
ally, was with the help of that Daniel Vasquez who testified for Respondent. The
total property loss could not have exceeded $100.
It must be found that the claim the strike was one of general planned violence
and that it was permeated by lawlessness was not sustained.
Of the 24 strikers to whom Respondent sent the letters of discharge on March
25 and 27, 2 can be omitted from consideration. Zubillaga admitted that letters
had been sent to Angel Garcia and Candida Lopez by mistake.
It would be an inexcusable waste of time to set forth in detail, item by item,
the evidence adduced in support of the claims of acts of violence against each
of the remaining dischargees. Some of the allegations were not of "acts." The
evidence offered against some of the Union's leaders was only of enthusiasm
for the strikers, manifested by cries of encouragement unconnected with action.
The record contains instances of this in regard to Jose H. Rodriguez, Altagracia
Morales, Jose Rivera de Leon, Concepcion Rosa, and others.
Some of the allegations were of acts wholly nonviolent. The two Carmonas
repeatedly included in their testimony, listing and describing the incidents of
violence, matters that were clearly within the area of peaceful picketing. For
instance, Rdinundo Carmona testified that Roberto Garcia and Raison Garcia
were guilty of violence in that as Americo Matias approached the factory they
"cornered" him and said "You cannot go to work," but that when lie (Carmona)
1618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reasoned with them, they allowed Matins to pass. No suggestion was made
of any threat or use of force.
Many of the acts, while violent, were of a character and committed in cir-
cumstances which a long course of decisions holds does not work a forfeiture
of employee status.
As long as a decade ago, the Court of Appeals for the Third Circuit said :
We cannot conclude that rights given to employees under the National
Labor Relations Act are destroyed because of violence as common to labor
disputes as a fist-fight upon a picket line.19
And later in the same year, the same court said, in a case involving much
more serious violence than a mere fistfight :
We think it must be conceded, however, that some disorder is unfor-
tunately quite usual in any extensive or long drawn out strike. A strike is
essentially a battle waged with economic weapons. Engaged in it are human
beings whose feelings are stirred to the depths. Rising passions call forth hot
words. Hot words lead to blows on the picket line. The transformation
from economic to physical combat by those engaged in the contest is diffi-
cult to prevent even when cool heads direct the fight. Violence of this
nature, however, much as it is to be regretted, must have been in the con-
templation of the Congress when it provided in Section 1.3 of the Act that
nothing therein should be construed so as to interfere with, or impede, or
diminish in any way the right to strike. If this were not so, the rights
afforded to employees by the Act would be indeed illusory. We accordingly
recently held that it was not intended by the Act that minor disorders of this
nature should deprive a striker of the possibility of reinstatement.
In the present case there was evidence of violence and disorder on the
part of many strikers. Numbers of them were convicted of crimes in the
state courts. The Board accordingly undertook to determine which of these
were sufficiently serious to bar reinstatement. * * * In making its de-
termination the Board confined itself to evidence of convictions and properly
refused to try accusations of violence which had not resulted in convictions
in the criminal courts. * * *.
As to the remaining offenses proved to have been committed, we are
satisfied from their character and from the small penalties imposed that they
were all sufficiently minor to come within our decision in the Stackpole
case. * * * 20
Examination of the report of the quoted case and of the Board decision
which it enforced is convincing that all the claimed acts of violence in the case
at bar were of the minor character which does not justify discharge or a refusal
to reinstate.
In the one incident alleged to have happened on Friday, March 21, no one
was injured and no property was damaged. No one was arrested or charged.
The affair was so trivial that Zubillaga did not even mention it in the conference
the following Monday.
In the various incidents of Monday, Edmundo Carmona was slapped and his
glasses broken, a padlock was maliciously destroyed by three strikers (one of
10N. L. R. B. v. Stackpole Carbon Corporation, 105 F. 2d 167 (1939).
20 Republic Steel Corporation v. N. L. R. B., 107 F. 2c1 472 (1939).
21 Republic Steel Corporation, 9 NLRB 219 (1938).
PORTO RICO CONTAINER CORPORATION 1619
whom Respondent reemployed almost immediately upon the reopening of the
plant after the strike ), a worker was warned by strikers armed with clubs not
to go back to work ( he told them lie would, he did, and he was not harmed), and
a fist fight occurred between a striker and a nonstriker as the latter left the
factory at the close of work for the day. This was the first case-and the only
one for that day-in which an arrest was made. Both were arrested . Later, the
striker was acquitted and the nonstriker found guilty of breach of the peace and
fined $10.
Tuesday morning , March 25, there occurred a fist fight near Martin Pina
Bridge for which two strikers and two nonstrikers were arrested and charged
with breach of the peace . All were acquitted.
On that same morning occurred the Fiol Street fight, in which an indeter-
minate number of strikers and nonstrikers were involved . It is indeterminate
because the witnesses did not agree either on who was present or on what
parts were played by any who were there. The evidence conflicts-even that
from the same side conflicts-as to where the groups met, who was in either
group , what any of the participants did, when any of them left, or where they
went when they did leave. Many of the witnesses betrayed a vindictive attitude
that made their - evidence questionable. Many others showed such a desire
for self-vindication , or self-glorification , that their testimony has to be taken
as strongly subject to doubt. Much of the doubtful-and some of the impos-
sible-testimony was corroborated by witnesses whom the evidence shows
could not have seen the affair . Now, at the end of 2 years , it is impossible
to learn the facts of the episode.
This much is sure. Seven strikers and five nonstrikers were arrested and
charged with a number of offenses.
Strikers Luis Torres and Enrique Ortiz were charged with maliciously as-
saulting nonstriker Francisco Gotay with lead pipes and breaking his arm.
Both were found guilty of aggravated assault and fined $50.
Four strikers, Enrique Ortiz, Luis Torres, Jose Rivera de Leon, and Carlos
Rodriguez, were arrested and charged with aggravated assault on Abelardo
Gotay. All were acquitted. (Carlos Rodriguez was reemployed by Respondent
shortly after the factory was reopened. He appeared as a witness for Re-
spondent.)
Two strikers, Luis Torres and Enrique Ortiz, were charged with aggravated
assault on Americo Matias, with a lead pipe, rocks, and stones, causing con-
tusions of the head and a fracture of the right arm. Ortiz was acquitted and
Torres found guilty and fined $50.
Nonstrikers Silvestre Merced, Isidro Gotay, Rufino Carrasquillo , Americo
Matias, and Francisco Gotay and strikers Luis Torres , Ramon Gonzales , Enrique
Ortiz, Jose H. Rodrigues, and Jose Rivera de Leon were arrested for breach of
the peace by engaging in a fight. ( The same fight in which Francisco Gotay and
Americo Matias were injured.) All were acquitted.
Striker Ramon Garcia and nonstriker Francisco Gotay were charged with
illegally carrying firearms. Garcia was acquitted ; Gotay, found guilty, fined
$50, and sentenced , in addition , to 25 days in jail.
About half an hour after that battle on Fiol Street, a fist fight occurred for
which nonstriker Felix Alvarado and strikers Luis Torres, Enrique Ortiz,
Ramon Garcia, Carlos Rodriguez, and Felix Diaz Castro were arrested and
charged with breach of the peace. All were acquitted.
889227-51-vol . 89-103
1620 DECISIONS. OF NATIONAL LABOR RELATIONS, BOARD
Later that morning, Tuesday, March 25, when Respondent closed the factory
and sought to take the employees away in automobiles, one of. the cars was
attacked. A number of the women strikers were alleged to have' carried stones
in their handbags and umbrellas and some of them were identified as having
been seen throwing them. Those alleged to have been seen with the stones in
their possession were Concepcion Rosa, Sara Rivera, Juana Colon, Altagracia
Morales, Maria Colon, Paula Adorno, and Ramona Tivent. The only ones iden-
tified as having been seen in the act of throwing them were Altagracia Morales,
Ramona Tivent, Sara Rivera, and Concepcion Rosa. Juana Colon was identified
as having been seen in the act of hurling a thermos bottle at the car. No one was
hit or in any way injured. The only damage done- was that the car's windshield
and the small ventilator window in its right front door were cracked. No one
was arrested or charged; although Corporal Pablo Arbona was standing on the
car's running board at the time of the affray and there were several other
policemen in the neighborhood. Corporal Arbona said he did not even make
a report of the affair ; that he was told not to by Zubillaga.
Except for two or three completely unsupported stories, such as that by
Edmundo Carmona how Gertrudis Pagan was attacked by Ramona Tivent with
a pair of manicure scissors and by Juana Colon with a shoemaker 's knife, but was
saved by his presence of mind and courageous action, and that of Juanita Garcia-
on Respondent's payroll-who claims to have been struck by someone with an
umbrella-stories not reported to the police at the time, apparently not told before
this hearing, 2 years later, and which I discredit-the foregoing covers the claims
of acts of violence through March 25, 1947.
The only affair leading to personal injury was the battle on Fboi Street. In
it Francisco Gotay and Americo Matias were quite seriously hurt and Abelardo
Gotay and Victor Gotay, badly, although less seriously injured.
. The only property damage shown to have been caused by the strikers is:
The breaking of Edmundo Carmona's glasses, the destruction of one large padlock,
and the cracking of the windshield and window on Hernandez' car. As has been
said, the total cannot have exceeded $100.
Only two strikers were arrested, tried, and found guilty as a result of all the
alleged acts of violence, Luis Torres and Enrique Ortiz. They both were found
guilty of serious offenses. I find Respondent had cause to discharge both of them
on March 25 and that their discharges are not shown to have been discriminatorily
motivated.
The General Counsel has advanced two arguments in opposition to this finding.
(1) That of the cases of these men, as of the others coincidentally discharged,
Respondent had made no impartial investigation but had relied on the words of its
own partisans. That is an item of evidence to show the discharges as a whole
were improperly motivated but it does not destroy the fact that these two had
given cause for discharge and that they were discharged for that cause. The
facts that Respondent was happy because they had given cause and that their
discharges aided him and harmed the Union seem immaterial. (2) That Fran-
cisco Gotay was illegally carrying a revolver, as found by the Insular Court, and
that he fired it at Luis Torres, as was testified at the hearing. This also seems
'immaterial. The assault was not caused by the gun. It was there because of
the fear of assault and was fired because of the assault's imminence. Gotay was
entitled to protect himself. It must be remembered that he could see, as Torres
and Ortiz approached, that what they were carrying was pieces of pipe and
not pipes of peace. He had a reasonable doubt of their pacific intent. .
PORTO RICO CONTAINER CORPORATION 1621
I find that none of the other discharges for alleged acts of violence were justified
on the facts. I find that they were in fact motivated not by the violence of the
actors but by the fact that their activity was in support of the Union.
As a corollary, I find that the insistence by respondent that all the dischargees
be declared ineligible to participate in the selection of a bargaining agent was for
the purpose of destroying the union majority. I find that there was a planned
failure and refusal to bargain in good faith.
Before leaving the subject of alleged acts of violence, consideration should be
given to the two later discharges made by use of the same form letter. Virgilio
Ortiz was sent it on April 1. The record contains no evidence of any violent
act on his part. Paula Adorno was sent hers on April 22. The plant reopened
to permit some customers to call for boxes they had ordered before the strike
while the picket line was in force. The customers who carne knew of the strike
and that because of it Respondent could not make deliveries. A group of pickets
tried to appeal to one customer not to cross the line. 11e refused and backed
his car to the door to permit loading. In the heat of argument, Paula Adorna
lost her temper and slapped his face. No damage was done-except loss of
face, in a purely metaphorical sense. I find neither of these later discharges
was justified and that they, too, were discriminatorily motivated.
On April 22, 1947, nonstriker Eugenio Medina was assaulted and stabbed. The
evidence shows that the attack upon him was planned in advance. Strikers Ra-
fael Rivera Mendoza-who has been found to have been discharged for cause
before the strike began-Jose H. Rodriguez, and Samuel Hurtado, and a stranger
to Respondent's employ, one Juan Resto, were arrested and tried for the affair.
Rivera Mendoza was found guilty of aggravated assault and fined $50. The
other three were found guilty of simple assault and fined $5 each. There is
evidence in the record that Medina on more than one occasion had been guilty
of using extremely insulting and provocative language toward the strikers. Also,
he had been involved in two of the fist fights which resulted in arrests and in
one of them lie had been the only one found guilty.
On June 2, 1947, the District Court of San Juan found that strikers Georgina
Santiago, Mercedes Gomez, Enrique Ortiz, Serafin Garcia, Ezequiel Cepeda, and
Erasmo Garcia had violated a writ of injunction granted on May 9 and were
guilty of contempt of court.
The allegation against the two first named was that they had destroyed the
lunclrboxes of some employees. The other four were found to have assaulted
nonstriker Justo Vasquez with their fists and feet. Each of the six was fined
$15. The recital of the facts proves the minor character of the violence of
which each of the six was found guilty.
Q. The discharge of Carlos Munoz Rivera, February 26, 1949
As the (late shows, this phase of the proceeding is entirely separate from the
events of March 1947, with which we have hitherto been concerned.
As amended charge and an amendment to the complaint alleged that on the
date stated, a week or two before the opening of the hearing, Respondent dis-
charged Munoz because of union activity on his part and because he gave in-
formation to aid the General Counsel in preparation of the case above con-
sidered. Respondent admitted the discharge on the date stated but denied that
it was motivated as alleged. Respondent averred that the discharge had been
for cause.
1622 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In support of his claim, General Counsel introduced evidence that twice in
1948 and again in January 1949, Munoz sought to secure a reorganization of Aso-
ciacion Unica and an accounting of its finances. Also, the General Counsel in-
troduced evidence to show that on February 26, 1949, the day of the discharge,
Munoz went to his office in Santurce to give a statement for use in preparation
of the case at bar.
General Counsel introduced no evidence that Respondent had knowledge of
this visit and no evidence of circumstances from which such knowledge could
be inferred. On the record, the only basis for suggesting a connection between the
visit and the discharge is mere suspicion based upon the fact that both occurred
on the same day.
Respondent proved by the payroll that for a long period of time preceding
the discharge, Munoz had an exceptionally bad attendance record and that it
appeared to be growing progressively worse. Further, the evidence showed
that for some period of time before February 26, 1949, it had been necessary for
Munoz' department, the corrugado, to work evenings and that Munoz had regu-
larly failed to come, giving as his only excuse that the factory's evening hours
did not fit in with his customary supper time.
The evidence shows that not long before Munoz had come into possession
of a substantial amount of money, some $2,000. Its possession may have been a
cause of his carefree, independent attitude. Certainly, matters connected with
his private business affairs were given as reasons for absence.
On the morning of February 26, 1949, Munoz asked permission for a quite
extended absence that day to attend to a real estate deal. He said nothing
about a contemplated visit to the General Counsel's office. Zubillaga told him
the amount of time he was asking for was unreasonable for the purpose he
had stated, that he was needed in the factory that day because of the press
of work, and that if he came back after the lunch hour with a reasonable re-
quest he would then be given such time as was actually needed.
Munoz did not wait. He left that morning without permission. He stayed
out the rest of the morning and did not come back in the afternoon when the
factory reopened after siesta. He did not return until late in the afternoon.
Admittedly, he spent part of the time at the General Counsel's office.
Upon his return to the plant, he found his card had been removed from
the rack. He asked Zubillaga for the reason. Zubillaga told him he was dis-
charged for his absenteeism, culminating in the absence that day, after permission
had been denied. He still did not mention that he had been at the General
Counsel's office.
On the evidence, I find Respondent has shown the existence of cause for
the discharge of Munoz. General Counsel did not maintain the burden of proving
the discharge discriminatorily motivated.
R. Summary
In view of the number of points it has seemed necessary to consider and the
extended consideration some of them have been given, I believe it will make
for clarity if a brief summary is given.
The charges that the discharge of Rafael Rivera Mendoza and the suspen-
sions of Paula Adorno, Enrique Ortiz, Concepcion Rosa, and Luis Terres arose
from their union or concerted activity and were discriminatorily motivated were
not sustained by the proof. Torres was not suspended. Respondent's action in
respect to all the others is found to have been for cause and justified.
PORTO RICO CONTAINER CORPORATION 1623
. From the foregoing it must follow that when a number of the employees
walked out, on the morning of March 21, 1947, in a mistaken belief the discharge
and suspensions had been for union activity and in protest against them, their
action constituted an "economic" strike. Up to that point Respondent is not
shown to have been guilty of any unfair labor practice.
Nor did Respondent's refusal to accept Rivera Mendoza as a member of the
employees' committee constitute a refusal to deal with the representative of the
employees' own choosing. The evidence shows he was not a chosen representa-
tive but a mere interloper. Respondent had no obligation to accept him or
to deal with him.
At the time of the committee's conference with Respondent, the latter had a
reasonable doubt of the majority status of the Union, formed only that morning
after the walkout. Respondent's witnesses generally understated the number
of those who walked out and overstated the number that remained at work, as
is clearly shown by Respondent's own payroll records. At the time of the con-
ference Manager Zubillaga must have known that a majority of the employees
who came to work that morning had walked out. But in spite of these facts he
could not then know whether all who had walked out were affiliated with a
union formed after the walkout and could not know whether or not those out
for vacations, illness, or suspension adhered to that union.
Under the circumstances, it is found that Respondent's request for proof of
the Union's majority does not warrant a claim of a refusal to bargain and
cannot be characterized as an unfair labor practice.
Manager Zubillaga admitted that during that conference he turned to the
employees remaining at their jobs and singling out some of them, asked "Does
this union represent you?" That interrogation of employees as to their union
status by management representatives is in itself violative of rights guaranteed
by the Act is established law. It is found that by this admitted act Respondent
violated Section 8 (a) 1 of the Act.
In paying the employees on the afternoon of Friday, March 21, Respondent
distinguished between employees on strike and those who remained at work in
relation to loans theretofore made against future wage payments. Those who
had not joined the strike were subjected only to the customary small deductions
for repayments on the loans. Those on strike had their loan payments accel-
erated and were subjected to deductions of the entire amount outstanding, even
though not yet due, and even though this required the entire pay so that an
employee received only an empty envelope. That this was done was admitted
by Respondent. Further, it was admitted that it was done by order of Manager
Zubillaga. And he admitted that the order was issued early on that Friday
afternoon, shortly after the conference in which he learned that the strikers
had formed a union which was demanding recognition. The differentiated treat-
ment and the deduction of the increased amounts from the strikers' pay could
be justified only upon a theory that by striking or by joining a union the em-
ployees had surrendered or lost their jobs and thus matured the loans. Such a
theory is not tenable under the Act. I find that the order to differentiate and the
consequent increased deductions were with the intent and of the necessary effect
to discourage union membership and to penalize legitimate concerted activity.
I find that by this Respondent violated Section 8 (a) 1 of the Act.
The fact that on Monday Respondent tendered payment of the amounts in
excess of the customary deductions taken from some-but not all-of the pay
envelopes does not remove the effect of the unfair labor practice thus committed.
1624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By Monday morning, March 24, at the time of the conference arranged by
Conciliator Goldsmith, it seems apparent that Respondent's doubts of the Union's
majority must have weakened. Still, I am unable to find that at that time
such doubts must be classed as unreasonable. The Union offered at that meet-
ing no proof of the number of its members. In the absence of such proof, it
cannot be found that Respondent's expression of doubt and request for evidence,
or his acquiescence in the conciliator's suggestion of an immediate consent elec-
tion to settle the matter constituted a refusal to bargain.
But with this proposal pending, Respondent's discharge the next day of
1S striking union members, 2 days later of 6 more, and thereafter of another 2,
and the coincident insistence that none of the dischargees should be eligible to
vote requires a different finding unless it is first found that the discharges were
justified.
In only 2 of the 26 discharges do the facts show justification. Twenty-four
of the twenty-six alleged to have been discharged for acts of violence were not
guilty of violence of a degree warranting discharge. Respondent cannot justify
its actions in discharging these 24 strikers by a claim of a reasonable belief
in their guilt. It made no fair and impartial investigation. It gave the dis-
chargees no opportunity to be heard. It went to great length to obtain the evi-
dence against them, accepting it from their opponents in the very conflicts upon
which the discharges were based. It paid no attention to the record of arrests
and convictions by the local authorities. Strikers acquitted by the courts were
discharged while nonstrikers who were convicted were retained and went undis-
ciplined. Respondent having thus undertaken to determine the guilt of these
striking union members must be held to have acted at its peril.
On the facts, I find that the 24 strikers were discharged not for illegal acts
of violence but for their union membership and activity. Consequently, I find
that the discharge of each was in violation of Section 8 (a) 3 of the Act.
Of the 24, 10 were offered reinstatement on May 13, 1947, and 2 more, much
later. Three of the 10 accepted the offer and went back. Also one of those
whom Respondent had said it would not reinstate was taken back at about the
same date. There remain 11 found wrongfully discharged, never reinstated,
and never offered reinstatement and 7 others who were wrongfully discharged
and were offered reinstatement which they did not accept. The offers of rein-
statement were in effect conditioned upon surrender by the offeree of rights
guaranteed by the Act. Their rejection did not change the rights or status of
those who refused them.
By reason of this mass discharge, which I have found was wrongful and
which I find was for the purpose of destroying the Union and its majority in
the then impending consent election and of nullifying the consent to it thereto-
fore given, I find Respondent refused to bargain in good faith with the Union
which in fact had the adherence of a majority of the employees. I find that by
this act Respondent violated Section 8 (a) 5 and Section 8 (a) 1 of the Act.
Although, as has been said, the strike commenced as an "economic" strike,
without a precedent unfair labor practice on Respondent's part to bring it on,
it is apparent that Respondent's conduct, as above outlined, had the effect of
transforming it into an "unfair labor practice" strike. It would be profitless
to take time to demonstrate the exact point at which the change occurred. There
is nothing in the record to indicate anything in the course of action of either
party which requires such exactness of determination. It seems clear that at
least by the time of the wrongful discharge of the first 18 strikers the Respondent
bad committed itself to a policy of denying the employees the guaranteed right
of self-organization.
PORTO RICO CONTAINER CORPORATION 1625
Respondent admits that on the day it discharged this first 18 and even before
they could have received their letters of discharge, Manager Zubillaga called
together the workers present in the plant who had not gone out on strike and
promised them that Respondent would continue to pay to those who had remained
loyal their hourly wages for a full 40 hours per week throughout the time the
factory remained closed. Most of those to whom this promise was made were
not skilled workers whose retention might have been essential to Respondent's
continuance in business and who, therefore, had to be induced not to listen to the
allurements of a rival employer. With few exceptions the employees, as Zubillaga
himself said,. were required to have only a manual dexterity which normally
could be acquired by only a few days experience. As to the few others, the
evidence is clear. There is no rival manufacturer of corrugated board on the
Island. Respondent's promise to pay these workers, and his payment of them
throughout the strike are found to have been promises and payments of benefit
to induce them not to join the strike, 'or to affiliate with the Union, or to partici-
pate in collective activity. By this, it is found that Respondent again violated
Section 8 (a) 1 of the Act.
Asociacion Unica was organized by two or -three employees who were in a
special relationship with Respondent. They were motivated not by the welfare
of the employees or by a desire to effectuate their right to self-organization but
by a desire to aid Respondent against the majority of the employees. The sole.
purpose of the Asociacion's organization was to help Respondent in the then
current industrial conflict. There is no evidence that Respondent contributed
financial support. The evidence is clear that Respondent did not then, or at
any later time, recognize the Asociacion as the bargaining representative of the
employees. It has not bargained with the Asociacion. On the contrary, it is
clearly apparent that immediately after it had served its purpose as an arm
of Respondent in the strike, it was allowed to lapse into desuetude. On the
record as a whole, taking into consideration the persons who organized it, the
time it was formed, the purposes it stressed at its few early meetings, and its
complete quiescence over the long period commencing immediately at the close
of strike activity, Asociacion Unica is found to have been dominated by Respond-
ent. It was its mere creature.
No space need be taken to repeat the finding regarding the discharge of Carlos
Munoz Rivera. The evidence wholly fails to support the allegation that it was
either for collective activity or because fie had given evidence or information
in aid of the current proceeding. It did not violate the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in Section III, above, occurring in con-
nection 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 with foreign countries and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce.
V. THE APPROPRIATE UNIT
At the time of the strike, March 21, 1947, the Union itself described the unit
it claimed to represent by the inclusive phrase "all the workers."
The evidence shows that both the Union and Respondent at that time under-
stood the term to be used as excluding both office workers and supervisors, even
though the Act at that time did not require the exclusion of the.latter.
1626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the complaint, General Counsel alleged the appropriate unit to consist of:
All employees ... exclusive of clerical employees, office employees, chauf-
feurs, supervisory employees, guards and professional employees as defined
in the Act.
The allegation was formally denied by the answer but no evidence was offered
by Respondent in support of its denial.
At the hearing, General Counsel asked that the allegation of the appropriate
unit be amended to include chauffeurs, in view of the fact that the evidence dis-
closed they, on occasion, worked as intraplant production employees and had
identical interests.
General Counsel also moved that the allegation of appropriate unit be amended
to exclude the position of mechanic, inasmuch as the evidence disclosed that in
Respondent's organizational setup he is peculiarly a representative of manage-
ment and has interest clearly divergent from and in some respects opposed to
those of the rank-and-file production employees.
The evidence fully warrants the suggested changes. On the basis of the evi-
dence, the appropriate unit is found to consist of :
All employees of Respondent employed at its Hato Rey Plant, exclusive of
clerical employees, office employees (which term includes part-time sales-
men and bill collectors, even though they spend a portion of their time as
shop, or production, or delivery employees), supervisory employees, guards,
and professional employees, as defined in the Act as amended.
It should be noted that adoption of the unit as thus stated, or as originally
alleged by the General Counsel, even if applied as of the date of the strike instead
of the broader and more inclusive definition then set forth by the Union, would
not weaken the finding above made of the Union's majority at the time of the
strike. To the contrary, it would increase that majority by withdrawing from
the basis for computation both mechanic Rosado and part-time salesman and bill
collector Barreto. They are both included in the number set forth as opposed to
the Union.
VI. THE REMEDY
Since it has been found that the Respondent has engaged in certain unfair labor
practices within the meaning of the Act, it will be recommended that it cease
and desist therefrom and take certain affirmative action deemed necessary in
order to effectuate the policies of the Act.
In general, it is unnecessary and would only cause duplication to set forth here
that which will be stated in the section to follow headed "RECOMMENDA-
TIONS." One phase of the remedy to be recommended requires special comment.
The recommendations will include a paragraph to the effect that Respondent
should be required to recognize and, on demand, to bargain with the Union as the
representative of the employees in the unit hereinabove described and found
appropriate. That recommendation is based solely upon a presumption of con-
tinuing majority which I construe the Board's decisions to hold conclusive. It
is, in my opinion, clearly demonstrable by the record that even if all whose rein-
statement will be recommended go back to Respondent's employ, the Union still
will not be able to count more than a third of the unit as its adherents. Also,
it seems apparent that while Respondent's unfair labor practices may account for
part of the defection from the union part, possibly the greater part is due to the
passage of time. Two and a half years is a long time to hold a majority-as many
a Congressman has found.
PORTO RICO CONTAINER CORPORATION 1627
Were it an open question, I would hold that the circumstances in which the
Union attained its majority, the smallness of the majority it held, the short
period over which it can be shown to have held it, and the long time that has
elapsed since it had it, combine to require a present showing that the Union is
currently acceptable to a majority of the employees, before foisting it upon them
as the "representative of their own choosing." But the question is not an open
one. Controlling decisions by the Board have dictated the answer." Constrained
by them, it will be recommended that Respondent be ordered to recognize the
Union and to bargain with it as the representative of the employees in the unit.
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS or LAW
(1) Union de Operarios de Fabrica de Envases de Carton de Porto Rico Con-
tainer Corporation, afiliada a in Confederacion General de Trabajadores de
Puerto Rico, is a labor organization within the meaning of Section 2 (5) of the
Act.
(2) All employees of Respondent employed at its Hato Rey Plant, exclusive
of clerical employees, office employees (which term includes part-time salesmen
and bill collectors, even though they spend a portion of their time as shop, or pro-
duction, or delivery employees), supervisory employees, guards, and professional
employees, as defined in the Act as amended, constitute a unit appropriate for the
purposes of collective bargaining, within the meaning of the Act.
(3) The Union above named was on March 24, 1947, and at all times thereafter
has been the exclusive representative of all the employees in the above-described
unit, within the meaning of the Act.
(4) By failing and refusing to bargain collectively in good faith with said
Union as the exclusive representative of the employees in the above-described
unit on and since March 24, 1947, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (5) of the original Act
and Section 8 (a) 5 of the Act as amended.
(5) By discriminatorily discharging, because of union membership or activity,
or concerted activity, Roberto Garcia, Erasmo Garcia, Felix Diaz Castro, Serafin
Garcia, Samuel Hurtado, Carlos Rodriguez, Ramon Garcia, Jose Rivera de Leon,
Angel Garcia, Francisco Fernandez (Cruz), Carlos Rivera, Ezequiel Cepeda, Ben-
jamin Lopez, Zenon Lopez, Daniel Vasquez, Concepcion Rosa, Altagracia Morales,
Sara Rivera, Juana Colon, Ramona Tivent, Candida Lopez, Virgilio Ortiz, Paula
Adorno, and Fernando Garcia, and by failing and refusing thereafter uncondi-
tionally to offer them, or any of them, reinstatement Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (3) of
the original Act and Section 8 (a) 3 of the Act as amended.
(6) Asociacion Unica de los Empleados de Porto Rico Container Corporation
is a labor organization within the meaning of Section 2 (5) of the Act.
(7) By maintaining and dominating the above-named Asociacion, Respondent
has engaged and is engaging in unfair labor practices within the meaning of Sec-
tion 8 (2) of the original Act and Section 8 (a) 2 of the Act as amended.
-Nagy, Harrington & Marsh, 74 NLRB 1455 (1947) ; Tishomingo Electric Power Assoc.,
74 NLRB 864 (1947) ; Jones & Laughlin Steel Corporation, 72 NLRB 975 (1947).
1628 DECISIONS OF NATIONAL LABOR RELATIONS. BOARD
(8) By the acts hereinabove listed as violative of Section 8 (5) and 8 (a) 5,
Section 8 ( 3) and 8 ( a) 3, and Section 8 . ( 2) and 8 ( a) 2, and by discrimi-
natorily deducting amounts not then due from the pay of striking union -mom-
hers, by interrogating employees as to their union membership or adherence,
and by promising to pay and paying nonstriking workers for hours of labor
not worked , in order to induce them not to join the Union or not to engage in
concerted activity, Respondent engaged in unfair labor practices within the
meaning of Section 8 (1) of the original Act. -
(9) By discharging Rafael Rivera Mendoza, Luis Torres ( Ramos ), Enrique
Ortiz, and Carlos Munoz Rivera, and by suspending temporarily Concepcion Rosa
Enriquez Ortiz , Virgilio Ortiz, Paula Adorno, and Luis Torres ( Ramos ), Respond-
ent did not engage in any unfair labor practice within the meaning of the
Act.
. (10) Except as concluded and stated in paragraphs (4), (5), (7), and (8) im-
mediately above , the burden of proof has not been maintained to show Respondent
to have engaged in any unfair labor practice within the meaning of the original
Act or the Act as amended.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, it is recom•
mended that Respondent be ordered:
1. To cease and desist from :
(a) Maintaining, supporting, aiding, recognizing as a collective bargaining
representative, Asociacion Unica de Empleados de Porto Rico Container Corpo-
ration, or negotiating or dealing with it as such representative ;
(b) Refusing to bargain collectively with Union de Operarios de Fabrica
de Envases de Carton de Porto Rico Container Corporation as the exclusive rep-
resentative of the employees in the appropriate unit;
• (c) Interfering with, restraining, or coercing its employees in the exercise
of their right to self-organization, to form labor organizations, or to join or
assist Union de Operarios, etc., or any other labor organization, to bargain
collectively through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other mutual aid or
protection.
2. Take the following affirmative action which it is found will effectuate the
policies of the Act :
(a) Offer Roberto Garcia, Erasmo Garcia, Felix Diaz Castro, Serafin Garcia,
Samuel Hurtado, Carlos Rodriguez, Ramon Garcia, Jose Rivera de Leon, Angel
Garcia, Francisco Fernandez (Cruz), Carlos Rivera, Ezequiel Cepeda, Ben-
jamin Lopez, Zenon Lopez, Daniel Vasquez, Concepcion Rosa, Altagracia Mor
ales, Sara Rivera, Juana Colon; Ramona Tivent, Candida Lopez, Virgilio Ortiz,
Paula Adorno, and Fernando Garcia, immediate and full reinstatement each to
his former or a substantially equivalent position without prejudice to his
seniority or other rights and privileges;
(b) Make whole the above-named individuals for any loss, of pay they may
have suffered by reason of Respondent's discrimination against them ;
(c) Upon request, bargain collectively with Union de Operarios, etc., as the
exclusive representative of -the employees in the unit hereinabove described,
in respect to rates of pay, wages, hours of employment, and:other conditions of
employment ;
PORTO RICO CONTAINER C'ORPOAAk ION 1629
(d) Post at Respondent's Hato Rey Plant copies- in Spanish translation of the
notice attached hereto and marked Appendix A. Copies of said notice, to be
supplied by the Regional Director for the Fifth Region, shall, after being duly
signed by Respondent , be posted by Respondent immediately upon receipt
thereof and be maintained by him for at least sixty (60) days thereafter, in
conspicuous places, including all places where notices to employees customarily
are posted . Reasonable precautions shall be taken by Respondent to insure
that such notices are not altered, defaced, or covered by other material ;
(e) Notify the Regional Director for the Fifth Region in writing, within twenty
(20) days from the date of receipt of this Intermediate Report, setting forth in
detail the steps, if any , taken by Respondent in compliance herewith.
It is further recommended that unless on or before twenty (20) days from
the date of receipt of this Intermediate Report Respondent notifies the said
Regional Director in writing that he will comply with the foregoing recom-
mendations , the National Labor Relations Board issue an order requiring
Respondent to take such action.
It is further recommended that all allegations of the complaint and the
amendments thereto as to which affirmative findings of unfair labor practices by
Respondent have not been made be dismissed.
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 designate by precise citation the portions of the record relied
upon and shall be legibly printed or mimeographed, and if mimeographed shall
be double spaced. Proof of service on the other parties of all papers filed
with the Board shall be promptly made as required by Section 203.85. As
further provided in said Section 203.46 should any party desire permission to
argue orally before the Board, request therefor must be made in writing to
the Board within ten (10) days from the date of service of the order trans-
ferring 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, con-
clusions, and order, and all objections thereto shall be deemed waived for all
purposes.
Dated at Washington, D. C., this 26th day of August 1949.
MERRITT A. VICKERY,
Trial Examiner.
1630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO ALL EMPLOYEE®
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce our employ-
ees in the exercise of their right to self-organization, to form labor organiza-
tions, to join or assist UNION DE OPERARIOS DE FABRICA DE ENVASES DE CAR-
TON, PORTO Rico CONTAINER CORPORATION, or any other labor organization,
to bargain collectively through representatives of their own choosing, and
to engage in concerted activities for the purpose of collective bargaining or
other mutual aid or protection.
WE WILL NOT in any manner, directly or indirectly, maintain, support, or
aid ASOCIACION UNICA DE LOS EMPLEADOS BE PORTO RICO CONTAINER CORPORA-
TION, will not recognize it as the representative of any of our employees for
purposes of collective bargaining, and will not negotiate or deal with it in
respect to rates of pay, wages, hours, or other conditions of employment.
WE WILL BARGAIN collectively upon request with UNION DE OPERARIOS DE
FABRICA DE ENVASES DE CARTON DE PORTO RICO CONTAINER CORPORATION as
the exclusive representative of all employees in the bargaining
unit described herein, with respect to rates of pay, wages, hours of
employment or other conditions of employment, and if an understanding is
reached, embody such understanding in a signed agreement. The bargain-
ing unit is :
All employees at the Hato Rey Plant, exclusive of clerical employees,
office employees (which term includes part-time salesmen and bill collectors,
even though they spend a portion of their time as shop, or production, or
delivery employees), supervisory employees, guards, and professional em-
ployees, as defined in the Act as amended.
WE WILL OFFER to the employees named below immediate and full rein-
statement to their former or substantially equivalent positions without
prejudice to any seniority or other rights and privileges previously enjoyed,
and make them whole for any loss of pay suffered as a result of the discrimi-
nation.
Roberto Garcia Benjamin Lopez
Erasmo Garcia Zenon Lopez
Felix Diaz Castro Daniel Vasquez
Serafin Garcia Concepcion Rosa
Samuel Hurtado Altagracia Morales
Carlos Rodriguez Sara Rivera
Ramon Garcia Juana Colon
Jose Rivera de Leon Ramona Tivent
Angel Garcia Candida Lopez
Francisco Fernandez (Cruz) Virgilio Ortiz
Carlos Rivera Paula Adorno
Ezequiel Cepeda Fernando Garcia
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard to hire
PORTO RICO CONTAINER CORPORATION 1631
or tenure of employment or any term or condition of employment against any
employee because of membership in or activity on behalf of any such labor organ-
ization.
PORTO RICO CONTAINER CORPORATION,
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.