Pueblo International, Inc.

National Labor Relations Board - Board Decisions

May 18, 1977

229 N.L.R.B. 770 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pueblo International, Inc. and Roberto Matos Burgos
Union de Empleados de los Supermercados Pueblo
and Roberto Matos Burgos. Cases 24-CA-3643
and 24-CB-943
May 18, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On September 9, 1976, Administrative Law Judge
Elbert D. Gadsden issued the attached Decision in
this proceeding. Thereafter, Respondent Union and
Respondent Employer filed exceptions and support-
ing briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
Judge only to the extent consistent herewith.
The Administrative Law Judge, without setting
forth any specific rationale, found that Respondent
Employer violated Section 8(a)(3) by discharging
employee Roberto Matos Burgos for the nonpay-
ment of union dues at Respondent Union's request.
We see no basis for finding that Respondent
Employer acted unlawfully in discharging Matos.
General Counsel sought to establish that Respon-
dent Employer failed in its duty to investigate
Respondent Union's request for Matos' discharge,
since it was aware of the derogatory remarks Matos
had made about the Union. An employer may not
lawfully respond to a request for an employee's
discharge without investigating it, if it has reasonable
grounds to believe that the discharge is being sought
for reasons other than the failure to pay an initiation
fee or to tender dues. Conductron Corporation, a
subsidiary of McDonnell Douglas Corporation, 183
NLRB 419, 427 (1970); Granite City Steel Company,
169 NLRB 1009, 1012 (1968); Associated Transport,
Inc., 169 NLRB 1143 (1968). In this case, Respon-
dent Union's request appeared to be proper. While it
is possible that Respondent Employer may have been
aware of derogatory remarks which Matos had made
I The Respondent Employer has excepted to certain credibility findings
made by the Administrative Law Judge. It is the Board's established policy
not to overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 We agree with the Administrative Law Judge that Respondent Union
229 NLRB No. 117
about Respondent Union, this alone would not give
it reason to believe that the latter's request was for
discriminatory reasons. Here, there is no evidence of
anything else which would give Respondent Employ-
er any reason to believe that Respondent Union's
request for Matos' discharge was based upon any
ground other than his failure to tender periodic dues.
Accordingly, we find that Respondent Employer did
not violate Section 8(a)(3) and (1) when it honored
Respondent Union's request and discharged Matos.
Therefore, we shall dismiss those allegations of the
complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent
Union, Union de Empleados de los Supermercados
Pueblo, its officers, agents, and representatives, shall:
i. Cease and desist from:
(a) Causing or attempting to cause Pueblo Interna-
tional, Inc., to discriminate against Roberto Matos
Burgos, or any other of its employees, in violation of
Section 8(a)(3) of the Act.
(b) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
designed to effectuate the policies of the Act:
(a) Notify Pueblo Internatinal, Inc., in writing, that
it has no objection to the reinstatement or employ-
ment of Roberto Matos Burgos, and request that he
be unconditionally reinstated to his former or
substantially equivalent position without loss of
benefits or seniority.
(b) Make Roberto Matos Burgos whole for any loss
of pay which he may have suffered as a result of the
discrimination against him by payment to him of a
sum of money equal to that which he would normally
have earned from the date of the discrimination
against him to the date he is reinstated by Pueblo
International, Inc., or to the date Respondent
notifies Pueblo International, Inc., that it has no
objection to his reinstatement, whichever is earlier,
less interim earnings with interest at 6 percent per
annum and in a manner consistent with the Board
policies set out in F. W. Woolworth Company, 90
NLRB 289 (1950); and Isis Plumbing & Heating Co.,
138 NLRB 716 (1962).
was discnminatorily motivated by employee Matos' antiunion remarks in
causing his discharge purportedly for nonpayment of union dues, and,
therefore, violated Sec. 8(bX2). Hence, we find it unnecessary to pass on the
Administrative Law Judge's additional finding that Respondent Union
violated that section of the Act by failing to meet its fiduciary duty of
advising Matos of his obligations under the valid union-security provision of
the contract.
770
PUEBLO INTERNATIONAL, INC.
(c) Post at Respondent Union's office in Puerto
Rico, copies of the attached notice marked "Appen-
dix."3 Copies of said notice, prepared in Spanish and
English language, on forms provided by the Regional
Director for Region 24, after being duly signed by
the Respondent Union's official representatives, shall
be posted by the Respondent Union immediately
upon receipt thereof, and be maintained by Respon-
dent Union for 60 consecutive days thereafter, in
conspicuous places, including all places where
notices to employees and union members are
customarily posted. Reasonable steps shall be taken
by Respondent Union to insure that said notices are
not altered, defaced, or covered by any other
material.
(d) Forthwith mail to the Regional Director for
Region 24 signed copies of said notice for posting by
Pueblo International, Inc., if it is willing, in places
where notices to its employees are customarily
posted.
(e) Notify the Regional Director for Region 24, in
writing, within 20 days from the date of this Order,
what steps the Respondent Union has taken to
comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar
as it alleges violations of the Act by the Respondent
Employer, be dismissed in its entirety.
3 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT cause or attempt to cause Pueblo
International, Inc., to discriminate against Rober-
to Matos Burgos, or any other of its employees, in
violation of Section 8(a)(3) of the Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
and enjoyment of rights guaranteed to them in
Section 7 of the Act.
WE WILL notify Pueblo International, Inc., in
writing, that we have no objection to the
reinstatement or employment of Roberto Matos
Burgos and will recommend his unconditional
reinstatement to his former or equivalent position
without loss of benefits or seniority.
WE WILL make whole Roberto Matos Burgos
for any loss of pay he may have suffered by
reason of his discharge with interest at the rate of
6 percent per annum.
All employees, union members and nonmembers
alike, are free to become, remain, or refuse to become
or remain, members of Union de Empleados de los
Supermercados Pueblo, or any other labor organiza-
tion, and they may exercise rights protected by
Section 7 of the Act, except to the extent that such
rights may be affected by lawful agreements in
accord with Section 8(a)(3) of the Act.
UNION DE EMPLEADOS
DE LOS SUPERMERCADOS
PUEBLO
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge: Upon
charges filed on September 15, 1975, by Roberto Matos
Burgos, herein sometimes called the Charging Party,
against Pueblo International, Inc., herein called Respon-
dent Employer, and Union de Empleados de los Supermer-
cados Pueblo, herein called Respondent Union or the
Union, a complaint was issued by the General Counsel of
the National Labor Relations Board on January 9, 1976.
The complaint alleged that Respondent Employer dis-
charged Roberto Matos Burgos prior to the 30-day grace
period for his failure to pay union dues and, alternatively,
that the Respondent Union's demand for Matos' discharge
and Respondent Employer's compliance therewith were
carried out notwithstanding the fact that Matos occupied a
job classification which excluded him from the bargaining
unit; and that the demand as well as the actual discharge of
Matos were not carried out for his failure to pay dues, but
rather, because Matos made derogatory statements about
Respondent Union and its leadership in the presence of
employees of Respondent Employer and of officers of
Respondent Union, in violation of Section 8(a)(3) of the
National Labor Relations Act, as amended, herein called
the Act.
The hearing in the above matter was held before me in
Hato Rey, Puerto Rico, on March 4, 5, and 6, 1976. Briefs
received from counsel for the General Counsel, counsel for
the Respondent Employer, and counsel for the Respondent
Union, respectively, have been carefully considered.
Upon the entire record in this case and from my
observation of the witnesses, I hereby make the following:
FINDINGS OF FACT
1. JURISDICTION
Pueblo International, Inc., the Respondent Employer, is
and has been at all times material herein a corporation
duly organized under and existing by virtue of the laws of
the State of Delaware, and is duly authorized to do
business in the Commonwealth of Puerto Rico. Respon-
dent Employer owns and operates a chain of 33 supermar-
ket food stores throughout the island of Puerto Rico where
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it is, and has been at all times material herein, engaged in
the retail sale of food and related products.
During the past year, a representative period of its
annual operations, Respondent Employer in the course
and conduct of its business purchased and caused to be
transported and delivered to its retail supermarket stores in
the Commonwealth of Puerto Rico food and other goods
and supplies necessary for the conduct of its business
valued in excess of $50,000, of which goods were transport-
ed and delivered to its retail stores in interstate commerce
directly from the States of the United States other than the
Commonwealth of Puerto Rico. Respondent Employer
derived revenues from the course of its business operation
in excess of $500,000.
The complaint alleges, the Employer admits, and I find
that the Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
Respondent Union, Union de Empleados de los Supermer-
cados Pueblo is, and has been at all times material herein, a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Pueblo International, Inc., the Respondent herein, is
engaged in the retail sale of goods and related products
through a chain of 33 supermarket stores located through-
out the island of Puerto Rico. Included in its operations are
two doughnut shops, one variety store, and three cash-and-
carry stores. The managerial hierarchy of Respondent
Employer consists of a general manager, assistant manager,
front-end manager and departmental managers, some of
whom are salaried and some of whom punch a timeclock
and are paid by the hour. The department managers who
are paid by the hour are included in the appropriate
bargaining unit and are dues-paying members of the
Union. Departmental managers who are salaried are not
considered a part of the bargaining unit and do not pay
union dues. Respondent has a collective-bargaining con-
tract with the Respondent Union which covers employees
in all 33 of its stores.
For its prospective managers, Respondent conducts a
manager trainee program which runs for a period of 6-7
weeks, with emphasis on the department in which the
prospective manager will be assigned to work. Its hourly
paid department managers receive wage increases and
other benefits in accordance with the union contract,
including Christmas bonuses and overtime. Salaried de-
partment managers receive a bonus computed on so many
weeks or on their work performances in their stores, and
they have the option of joining two medical plans instead
of one. Their salaries are continually paid when they are on
sick leave, while hourly paid managers accumulate sick
leave and are paid only for accrued sick leave. A salaried
manager may take a few hours off without anything being
deducted from his salary but a bargaining nonsalaried
manager must punch out and punch in again, with some
exceptions to be granted within the discretion of a superior
manager. Life insurance of salaried managers are carried
by a profit-sharing plan.'
B. The Managerial or Employee Status of Roberto
Matos Burgos and the Propriety of his Compulsory
Membership in the Union
Roberto Matos Burgos testified that he commenced
employment with Respondent on March 22, 1971, and has
worked in several of Respondent's stores on many
occasions. Matos further stated that he was employed as a
manager-trainee and was periodically assigned to various
stores to fill in for dairy managers to acquire manager
training. The duration of his assignment in various stores
varied from 2 to 3 days, to a week or 2, or to a month, and
on rare occasion to as much as 6 months, during which
times he discharged the duties of dairy managers who were
on vacation, ill, or on leave for other reasons. He has been
assigned to the North store for the past 2 years. He has not
been assigned to fill in for dairy managers during the past
year. Whenever he was assigned to such other stores he was
so assigned by the dairy manager who told him he was
needed at the other store because the dairy manager was ill
or absent for other reasons. Matos described his duties at
Pueblo North as receiving merchandise, filling two refriger-
ators with chilled and frozen products, supervising two
employees, and on some occasions substituting for the
dairy manager when he was not present or was occupied
otherwise. when he bought merchandise for the store,
Matos said he relied largely on his experience.
Matos said at no time while he was working at Pueblo
North did management ever notify him of a change in his
job classification as a dairy manager-trainee. Nor was he
advised when he would be appointed a dairy manager
except that, if a vacancy of such position became available,
it would be offered to him. Matos testified that no union
officer or delegate ever asked him to become a member of
the Union or to pay union dues, or advised him that if he
did not pay union dues the Union would request his
discharge under the contract with Respondent Employer.
However, he contends that Union Secretary Bienvenido
Perez, on several occasions, had asked him why he did not
pay union dues and he replied that until the Company
clarified his status he could not pay such dues. Milagros
Rosich, vice president of the Union, also asked him why he
did not pay union dues. He told her he was a dairy
manager-trainee in the store, and until such time that his
status was cleared, either through the Company or the
Union, he could not pay union dues. He said Rosich said
all right.
About 6 months before he was discharged, Carlos Colon,
assistant to the general manager of the North store, called
him and presented him with papers to sign for checkoff of
union dues. Matos asked him who sent the papers and
Colon said he received them in the mail, explaining that all
The facts set forth above are not in conflict in the record.
772
PUEBLO INTERNATIONAL, INC.
employees of Respondent Employer belong to the Union.
Matos said he then asked was membership applicable to
the position he occupied and Colon said it did not matter
what position he occupied, he had to pay union dues.
Matos said that about a month later Jorge Fernandez,
general manager of the North store, approached him and
advised him that he had become aware that Matos had not
signed the papers authorizing the checkoff of union dues.
He then asked Fernandez did he come to him as an
executive of the Company or as a participant of the Union,
and Fernandez said that he came only as a friend. He told
Fernandez he was a dairy manager-trainee and until such
time as his position was clarified in the Company by
Respondent Employer or Respondent Union, he could not
sign any papers for the checkoff of union dues; that
Fernandez said, "Hey, come here, look here, you are
against the Union?"; that he told Fernandez he wasn't
against the Union or in favor of the Union and he repeated
his reasons for not signing the papers. When he was asked
did Fernandez give him any further explanation, Matos
said, "Yes, he told me that in aform, in a way, that if I didn't
pay the union dues, I could be discharged" Matos said he
repeated his reasons for not joining the Union, adding that
when the Company clarified his status he would decide if
he would pay union dues or resign. Fernandez said OK and
that was all. He also maintained that neither Fernandez
nor a company officer, or any officer of the Union, ever
notified him that his job classification as a dairy manager-
trainee had been changed.
On several occasions in July and August 1975, Matos
said he said in the presence of Union Secretary Bienvenido
Perez: that the Union did not have the capacity to work as
the Union; that the employees of the Union could not offer
a good service because they found themselves working with
Pueblo, that how was it possible that Bienvenido Perez and
Milagros Rosich could do a good job in the Union because
they were working with the Employer, and that being so,
the Union was a sweetheart Union; that he saw the case of
Bienvenido Perez who worked 8 hours and held the job as
secretary of the Union, and that the only thing he did was
utilized it as a rubber stamp. On some other occasions
Matos said he told Perez he was a incapacitated, disabled,
and that Perez called him a mad man who knew nothing
about the Union because he was not a member of it and
that no one should pay any attention to what he said.
When Matos was asked what were his duties as a dairy
manager at Pueblo North, he said he received merchandise,
took care of the salesmen, supervised two dairy employees,
and made the orders for purchasing.
Dairy Manager Training
Matos further testified that, on several occasions while
he was at the Barbosa store, he was instructed orally and
by letter from the general manager to go to the distribu-
tion's center for classroom training. One of the training
courses involved the subject of the use of IBM cards. At
other training sessions the class consisted of dairy manag-
er-trainees and managers of the dairy department, instruc-
tors, and company officials who showed them what to do.
While in said training he was paid on a timeclock hourly
basis. When he first started to work at the Barbosa store,
Matos said the dairy manager, Nicoles Burgos, asked him
why he did not pay union dues and he said because he was
a manager-trainee; he would not decide to join the Union
until his job classification was clarified. He admitted he did
not ask Manager Burgos to clarify his work status.
However, when he was first employed Respondent Em-
ployer advised him that, when he became dairy manager,
he would have the option to change to another insurance
plan but the Respondent never granted him the other
insurance plan. He denied Perez ever spoke to him about
paying union dues.
In supervising employees Matos said either he or
Manager Burgos would tell the workers how to fill or pack
the refrigerators and how to reserve space when there was a
shortage of some products. During the month of September
1974, he said Manager Fernandez asked him would he like
to be a dairy manager and he said yes, but when Fernandez
told him what the salary would be, he told him he did not
want the job at that salary, it was lower than what he was
earning at the time. This was the last time Matos said he
had any discussion about being a dairy manager. On cross-
examination Matos said Manager Fernandez did tell him if
he (Matos) did not pay union dues, he was going to be
discharged.
Matos further testified that although he was employed by
Respondent 4-1/2 years he does not know when his
management training ended, if in fact it did. With respect
to his job classification and work description, Matos
identified Respondent Employer's Exhibits 2 and 3, dated
November 24, 1972, and March 26, 1975, respectively,
which designated his classification as dairy clerk, dairy
department. He intimated that such designations were not
filled in at the time he saw and signed them. However, he
admitted that he did not protest the classification designa-
tion of dairy trainee or dairy clerk, and he also admitted
that he had no authority to hire and fire employees.
When Matos was asked to read from the statement he
submitted to the Board in his affidavit, he read as follows:
A. (Reading in Spanish - translated): Even
though I finished the training period, I wish to clarify
that the training period in this declaration determines
the probationary period of the person, the person with
three months of probation on the job, at no moment the
Company promoted me to Dairy Manager. At every
moment I was working under the orders of a Dairy
Manager except on the occasion when I replaced some
manager that was going on vacation or when the
Manager of the Barbosa store went to the Army, in
which I substituted him. It was for about a year and
two months in Barbosa and I only had one employee
under my charge, who would sometimes work on a full
shift or full-time, sometimes part-time. At no time did I
ever have more than one employee at the Barbosa
store.
In continuing his testimony Matos described a conversa-
tion he had with Mr. Gutierrez, president of the Union,
during which Gutierrez called him to the lounge and asked
him if he was against the Union. He said he had heard
certain comments that Matos had made against the Union
and he wanted to know whether they were true or not, what
773
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(he) Gutierrez had done to Matos; and that he just wanted
to clarify those rumors and that was all. They continued to
be friends.
Matos said he did not protest his job classification
because he was acquiring knowledge and experience and
the job was convenient for his circumstances, including the
opportunity for him to attend the World University at
night after working days for Respondent Employer.
Roberto Matos testified that when he first started to
work he talked with Mr. Nogueras and he filled in and
signed some papers as Mr. Nogueras explained to him the
contract on dairy manager-trainees. Mr. Nogueras told him
that he was going to be in that position for a 3-month
probationary period; and that he was going to be a trainee
until a dairy manager's position became available, at which
time such position would be offered to him. Matos said he
was thereafter offered such a position on two occasions,
one at the Barbosa store by Mr. Civiles, the dairy
supervisor. Upon learning what the salary would be Matos
said he declined the offer. He was offered a position as a
dairy manager on another occasion when Manager
Fernandez, general manager of the Pueblo North store,
asked him did he want to be a dairy manager and of what
store. Matos said he told him he would assign him to any
store. When Fernandez made him the money offer Matos
said he did not accept it. Matos said no one told him what
his job classification would be when he was assigned to the
North store.
On September 13, 1975, Matos said he told Milagros
Rosich, vice president of the Union, that he had been
discharged and asked her did she know who told Respon-
dent he was not paying union dues and was refusing to do
so. He said she then told him she knew about his case but
Milagros denied she made such a statement.
Irving Fazzio, district store manager for 5 years and a
prior dairy manager, testified that he interviewed Matos for
employment, during which time he told him he was going
to remain a dairy manager-trainee for a period of 3
months, that if his performance as a trainee was approved
and if there was a position available for him at the store, it
would be given to him. By "approved," Mr. Fazzio said he
meant that after a period of 3 months, if a position were
opened, it would be given to Matos. However, after the 3-
month period when Matos was ready to serve as a dairy
manager, such a position was not available at that time and
he was sent to cover certain emergency needs in different
stores, such as filling in for a dairy manager who was ill or
on vacation. Subsequently a dairy manager's position
became available in the Barbosa store and it was offered to
Matos and Matos accepted the dairy manager position
punching a timecard at 50 hours per week. In other words
he was hourly paid instead of salaried. In that capacity he
would talk to Matos as he supervised him, telling him how
to get ahead by taking an interest in the work because
whether or not he would be advanced to a store where he
would be a salaried manager depended upon him.
Mr. Fazzio said Matos appeared to be optimistic and
happy the first few times he talked with him but, after 4 or
5 months, Matos would ask him not to assign him to a
department manager because he did not want to assume
the responsibility it entailed; that he did not believe he was
getting enough money to have so much responsibility; and
that he was working 50 hours a week and for him it was
easier to work 40 hours a week, because he had previously
told Fazzio that he was going to school at night and it was
more convenient to study with less hours. Mr. Fazzio said
they discussed the matter in supervisors' meetings and
decided to assign Matos to the North store as a dairy clerk
because they did not need him at the Barbosa store as a
dairy clerk. Rather, they needed a dairy manager at the
Barbosa store. Consequently, Matos was assigned to
Pueblo North store in December 1972 as a dairy clerk to
replace the previous dairy clerk who had been transferred
to Guayama where he lived. The prior dairy clerk worked a
40-hour week punching a timecard. Matos was verbally
notified in December 1972 that he was transferred from the
Barbosa store to the North store punching a 40-hour-week
clock so that he would have time to study. Matos said all
right.
Celestino Ayala testified that he was the supervisor of the
dairy department in Pueblo North in 1972 when Matos was
assigned there and that Matos had worked as a dairy clerk
at the De Diego and North stores. He advised Matos upon
his arrival at the North store that he would be in charge of
the frozen food case. Mr. Ayala continued to testify as
follows:
I explained to him the type of movement we had in
that store; being that it was highly continental custom-
ers we did a lot of business in the frozen food
department, so I specified the fact that we did do a lot
of business there because of our continental trade.
Q. Did you have any discussion with him with
regard to the hours he would work per week?
A. Yes, I told him he was going to be a 40-hour
basis a week.
Matos agreed and he was not considered for a dairy
manager's position while he worked at the North store
because Nicoles Burgos was dairy manager on a salary
basis at the North store at that time.
Jorge Louis Fernandez, general manager of the North
store during Matos' tenure there, testified that, in April or
May 1975, Union President Milagros Rosich brought
signed forms to him for the deduction or checkoff of union
dues and advised him that Roberto Matos refused to sign a
form. Fernandez said he then advised Matos that he should
sign the form because a refusal to do so could cause him to
be discharged by the Company since all other employees
paid dues. Matos told him that he was not going to pay.
Around July or August 1975 Fernandez asked Matos
again whether or not he had decided to pay dues and
Matos said he could not. Fernandez denied that Matos
ever told him the reason he would not pay dues was
because he was a management trainee. Fernandez said he
then told Vice President Milagros Rosich what Matos had
said.
Fernandez said he first learned that Matos had been
suspended when he came to work the next day (September
14, 1975). Later that day he said Matos came to him and
advised him that he had been suspended for failure to pay
dues and Fernandez said he was very sorry. Fernandez
admitted that he asked Matos if he would accept a
774
PUEBLO INTERNATIONAL, INC.
management trainee's position in a particular store but
Matos said Respondent would not pay him enough. He
denied that he told Matos he could have a dairy manager's
position in any store Matos wanted.
Fernandez further testified that Nicoles Burgos was dairy
manager of the North store and Mr. Ruiz, a dairy manager,
worked in his place when he went on vacation in 1974. He
said that in 1975, Mr. Saidis, dairy manager from the St.
Thomas store, filled in for Nicoles Burgos. Mr. Ruiz is
salaried but Mr. Saidis and the receiving manager in the
North store are hourly paid and are dues-paying members
of the Union. Mr. Burgos' is salaried and does not pay
dues. While Matos worked under his supervision at the
North store, Matos received the wage increases called for
by the union contract (Resp. Emp. Exh. 3). Fernandez said
he did not know that the Union could request the discharge
of Matos when he told Rosich, the vice president of the
Union, that Matos would not pay dues. Fernandez testified
that he completed the vacation form (Resp. Emp. Exh. 3)
on March 26, 1975, as appears thereon. He had sent other
dairy clerk employees (Gregori Allande and Hiram Parilla)
to other stores to assist for 1, 2, or 5 days, or I or 2 weeks.
He said he has never had a practice of having employees
sign blank forms for vacation.
Mr. Dajer testified that he received a letter dated
September 10, 1975, from the president of the Union
advising him that Matos had refused to sign the dues-
checkoff authorization card to pay initiation fees and
regular dues for the Union; that the Union had made
several efforts to obtain Matos' signature but he had
continually refused to sign; and that the Union thereupon
requested the discharge of employee Matos pursuant to
provisions of the collective-bargaining agreement (sec. B,
art. II, on union shop).
Around April 1975 Mr. Dajer said the Union called him
and told him that Matos refused to pay union dues and
according to the collective-bargaining contract he could be
dismissed for refusing to do so. He said he then asked the
president of the Union whether he had asked Matos to pay
his union dues and he said yes, several times, either
through himself or his people. He than asked the president
of the Union to ask Matos again to pay the union dues and
he called General Manager Fernandez at the North store
and advised him that he had learned that Matos was not
paying union dues and directed Fernandez to try to talk to
Matos to advise him that he had to pay dues because he
could be dismissed if he did not.
Fernandez called Mr. Dajer a week later and advised
him that Matos said he did not want to pay and he was not
going to pay any dues. Fernandez did not know any reason
given by Matos why he would not pay.
Around August 1975, during the negotiation period,
President Gutierrez informed Mr. Dajer that Matos was
still not paying dues. He asked the president had the Union
asked Matos to pay and he said yes. In early September,
President Gutierrez called him again and informed him
that all efforts to have Matos pay union dues had been
unsuccessful and that Matos should be dismissed accord-
ing to the contract. He told the president to send the letter,
as specified in the contract, requesting Respondent Em-
ployer to take such action and the letter was received by
him.
In September 1975 there were approximately 135
employees at the North store and around 2,600 employees
in the bargaining unit. The Respondent Employer did not
know of any reason why Matos was denied membership in
the Union other than his failure to pay the required
initiation fees and dues. Mr. Dajer said he did not know of
any document in Matos' personnel file which notified
Matos of a change in his position from manager-trainee to
dairy clerk. He acknowledged that in his 10 years' tenure
with Respondent-Employer he knew of no case where the
union-security clause was invoked to discharge an employ-
ee, except in employee Matos' case.
Jose Nicoles Burgos Diaz testified that he worked as a
salaried dairy manager at the North store and supervised
Matos as a dairy clerk since the end of 1972. Around July
1975, Matos told him he (Matos) did not pay union dues.
He advised Matos to check on that matter because it may
cause him a problem in the future. He has never had a
conversation with Matos as to whether Matos would
become a dairy manager. However, whenever Burgos was
busy or out of the store, Matos would substitute as dairy
manager and he would review Matos' work on the next
day. He has never known Matos to be a dairy manager-
trainee. However, when Burgos was confronted with his
affidavit previously submitted to the Board, he acknowledged
under extensive cross-examination that Matos had told him 3
months before his discharge that he (Matos) was a dairy
manager-trainee. Burgos said he did not seriously consider
Matos' statement, however.
On redirect examination Burgos explained that, when
Matos would substitute for him in ordering from the
distribution center, such function is carried out by a very
set and fixed procedure outlined in a book and no exercise
of discretion is involved. With respect to taking care of
salesmen, this function is carried out without handling any
money. When Matos came to the North store, he was
transferred in as a dairy clerk although Burgos knew he
was previously a dairy-manager trainee when he was
employed by the Company.
Jose A. Gutierrez, president of the Union for 9 or more
years, testified that he first met Matos in August 1972; that
when he tried to urge Matos to join the Union and provide
for dues checkoff Matos told him that he was not going to
join the Union because he did not believe in it. He said he
then told Matos that it was necessary for him to join. He
asked Matos about the union checkoff authorization again
in September 1972 but Matos said no. He asked Matos
again after he went to the North store and again, Matos
said, "No, the employees did not need a union and he
would not join."
He said he spoke to Matos unsuccessfully about the
Union in August 1975. The probationary period for new
employees with the Respondent Employer is 90 days as
provided by the collective-bargaining agreement; all
employees who remain under Respondent's employ after
90 days become permanent employees. The board of
directors of the Union had discussed on several occasions
Matos and other employees who had failed to pay union
dues and the possible termination of their employment.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The board of directors decided in September 1975 that the
Union should send a letter to the Respondent Employer
requesting Respondent to discharge Matos. The witness
acknowledged that this was the first time that he has
known the Union to make such a request. He denied Matos
had ever mentioned that clarification of his job description
or duties was a problem. He also stated that Bienvenido
and other union employees had told him Matos made
several statements against the Union but he did not
attribute any significance to them. He also acknowledged
that he never warned Matos he could be discharged if he
did not join the Union. His explanation for the Union not
taking action against Matos before September 1975 was
due to the fact that the Union affords every employee all
possible leeway to join the Union and because all the
employees who were employed there after a period of time
had joined the Union and were paying dues except Matos.
Bienvenido Perez Cortes testified that Matos told him the
president of the Union, Gutierrez, was no good; that he
was receiving checks from the Union; that the Union was
weak; that the Union was proemployer. Perez stated that
he informed the president of the Union of Matos'
statements. Perez continued to testify as follows:
Q. Do you know who made the determination to
request Matos' discharge?
A. No, I don't know.
Q. Didn't the union President consult with you
over the phone, early in September of 1975?
A. No. On that date, no.
Q. At any other time?
A. Before that, it would be said that they were
going to send a company letter to all.
* * *
the Union because it was not worth it and he refused to sign
the form authorizing the checkoff for membership and
dues. Perez said he also spoke with Matos again in 1972 or
1973 on the same subject and Matos said it was not
important for him to belong to the Union. Matos did not
talk to him about his status as a management trainee.
Alejandro Cruz Sierra, treasurer to the Union, testified
that, on three occasions between 1972 and 1975, he spoke
to Matos about joining the Union and Matos said he did
not want to join and refused to sign an authorization for
checkoff. Matos never told him he was a manager-trainee.
In January, February, or March, 1975, the board of
directors of the Union discussed Matos' refusal and
decided to ask the Employer to clarify whether Matos
would be made an executive, to clarify whether he was to
become a member of the Union or a part of the Employer.
He did not know that the Union sent a letter to the
Employer about Matos. However, he said he did advise
Matos that if he did not join the Union he could jeopardize
his job. The Union's board has also decided in its meeting
to request Respondent Employer to discharge Matos.
Milagros Rosich Meldonado has been in the employ of
Employer since 1959 and works in the office in North store.
She is vice president of the Union and had talked to Matos
about joining the Union at the North store in 1973. She
further testified as follows:
Q. Did Matos tell you at the time why he wasn't
joining the union?
A. The first time I spoke with him, the answer that
he gave me was that he could not become a member of
the union because he was in the store as a dairy
manager trainee.
Q. Did you at any time report what Matos had told
you to any other union officer?
Q. Did the union President, at any time, call you
over the phone, or take your vote over the phone,
regarding whether Mr. Matos should be discharged or
not?
A. I only remember that a letter was sent, that
anyone that was not in the union would sign the paper,
and if not, he would be discharged according to the
agreement.
Q. And that was decided when? At a meeting?
A. That I can recall, no.
Q. So there was no meeting to discuss that, either?
A. In some meeting we discussed the cases, but to
discharge someone specifically, no.
Q. So discharging Matos, specifically Matos, that
was never discussed at a meeting?
A. No, because there were quite a few who had not
signed.
Q. So you don't know who or when the determina-
tion to request Matos' discharge was made?
A. No, I don't recall.
Rafael Diaz Saez testified that for at least 12 years he has
been a delegate to the Union, and a member of the board
of directors for the past 3 years; that he talked with Matos
in 1972 and told him that it was necessary that he join the
Union. At that time Matos said he did not want to belong to
* * * *
A. Yes.
Q. To whom?
A. The President of the union, and the Board.
Q. Who was the President of the union?
A. Mr. Jose A. Gutierrez.
Q. When did you tell Mr. Gutierrez that?
A. During the times that I communicated with him,
during the year 1973 to the year 1975. I don't recall the
exact dates ....
* * s
Q. Did you at any time, on or around June, 1975,
ask Gutierrez to have Matos' status defined?
A. Yes.
Q. And what did Gutierrez answer?
A. That he was resolving the problem with man-
agement and that he would let us know the results.
Milagros Rosich further stated that she did not vote for
Matos' discharge and that she did not know of any meeting
where such a vote was taken; that she did not know Matos
was discharged until after he had been discharged; and
that she was never called on the telephone to vote for such
a discharge. She continued to testify as follows:
776
PUEBLO INTERNATIONAL, INC.
Q. What was it he said to you when you ap-
proached him about paying dues to the union?
A. As I said before, I explained, I had the checkoff
form for the union with his name, and I explained to
him that we had a list, that I had a list of some
employees of the store who were not paying union dues.
The rest of the employees, all, signed the form with no
problem.
I then directed myself to Robert so that he would
sign the form, because he was the only one that was
missing, and he answered that he could not sign it,
because he was in the store as a dairy manager trainee.
Q. He used those words, "manager trainee?"
A. Yes.
Q. He never said he was a management trainee, did
he?
A. No.
Q. All right. You knew he wasn't in the store as a
dairy manager trainee, didn't you?
A. No, I had knowledge that he was a dairy clerk.
Q. You knew he had replaced Mr. Matinez, who
had been transferred, didn't you?
A. Yes.
Q. So did you tell that to Mr. Gutierrez when you
made your verbal report to him?
A. Yes.
Q. In other words, you told him that you knew the
man was a dairy clerk, and not a manager trainee?
A. Exactly.
Q. And when you talked to Mr. Matos on two
times later, you asked him to sign the dues deduction
forms, didn't you?
A. Yes.
Q. And he told you he refused to sign, didn't he?
A. Exactly.
Q. And he said absolutely nothing about being in
training for anything on those occasions, did he?
A. No.
Q. Simply said he didn't want to have anything to
do with it, didn't he?
A. Exactly.
C. Pertinent Contract Provisions Regarding Union-
Security Clauses
The Respondent Employer has had prior collective-
bargaining agreements with the Respondent Union and the
effective date of the current collective-bargaining agree-
ment or contract is September 8, 1975. The prior contract
which expired on August 31, 1975, contained a union-
security clause and article II of the current collective-
bargaining agreement contains a union-security clause
which provides as follows:
It shall be a condition of employment for all
employees of the Company covered by this Agreement
who are members in good standing of the Union as of
the date of execution of this Agreement, to continue
being members in good standing thereof. Those
employees covered by this Agreement who are not
members of the Union as of the date of execution of this
Agreement. must, not later than the thirty-first day
from the date of execution of this agreement, join and
continue being members in good standing of the
Union. All employees covered by this Agreement who
may be given employment on or after the date of
execution must, not later than the thirty-first day from
the date of their employment, join and continue being
members in good standing of the Union.
In the event that an employee covered by this
Agreement fails to pay the initiation fee or the dues that
may uniformly and without discrimination be imposed,
such as required to join and continue being members of
the Union, the latter shall report this fact to the
Company in writing.
The Company agrees to discharge that employee not
later than 7 days after having received such notification,
provided that: it has no justification to believe that he was
not offered admission into the Union under equal terms
and conditions as generally offered to all, or it has no
reasonable doubt to believe that he was not accepted or
was expelled from the Union, for reasons other than his
refusal to pay the initiation fee or regular dues which are a
condition for belonging and continuing being a member of
the Union.
The collective-bargaining agreement including the
above-described union-security clause covers the following
employees as described in article I, section B, of the current
collective-bargaining agreement which provides as follows:
B. The employees covered by this Agreement shall
be the employees included in the following contracting
unit:
Included: All employees of the Company's retail stores
located in the Commonwealth of Puerto Rico, includ-
ing employees of the front end department, employees
of the fruits and vegetables department, dairy products,
meats and fowl, employees of the Deli, Variety Store,
Dona Dona, bakery, flower shop and the Cash and
Carry stores and employees working two days only
(part-time).
Excluded: All executive and professional employees,
management trainees; employees of the central ware-
house (Distribution Center); employees of the whole-
sale warehouse (Pueblo Wholesale); employees of the
construction, maintenance and service department
(Pueblo Maintenance); supervisors and guards as
defined in the National Labor Relations Act, as
amended.
Analysis and Conclusion
Although considerable time was spent during this
proceeding on the question of Roberto Matos Burgos'
status (managerial versus employee), the evidence of record
is practically free of conflict that Matos was a dairy clerk
since he was transferred from the Barbosa store to the
North store in 1972. In fact Matos himself testified that he
was not a dairy manager in the North store and that he had
no authority to hire, fire, assign, transfer, or grant leave to
employees, and, further, that he has not exercised such
authority. While the evidence shows that Matos was
777
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
initially hired as a dairy manager-trainee, the record is also
clear that he has not had any recent (during the past year
or two) managerial classroom or practical training, even
though his title may have been changed to correspond with
his dairy clerk duties. However, even if Matos were in fact
a dairy manager-trainee, or more, a dairy manager, he was
nevertheless hourly paid, as distinguished from a salaried
trainee or manager and, therefore, was properly included in
the appropriate collective-bargaining unit. As so classified,
Matos was eligible and obligated to join and retain
membership in the Union as required by the union-security
clause of the prior and current collective-bargaining
agreements.
It is true that the record shows that Matos was given an
hourly paid clock-punching dairy manager's position when
he was first assigned to the Barbosa store but that, shortly
thereafter, he expressed dissatisfaction with the volume of
responsibility, the adequacy of his wages, and the number
of working hours which he said made it inconvenient for
him to attend evening classes at the World University. In
response to Matos' dissatisfaction Respondent Employer
assigned Matos to the North store as a dairy clerk,
replacing the prior dairy clerk in the North store. The
record does not show that Matos ever protested this
demotion and reassignment, nor is it shown that Matos
thereafter served in the capacity of a dairy manager-trainee
or a dairy manager, dejure or defacto. Therefore, in view of
the foregoing evidence, I hereupon conclude and find that
at no time during Matos' working tenure in the North store
(during which period he was asked on several occasions to
join the Union) was Matos ever in fact a dairy manager or
dairy manager-trainee so as to exclude him from inclusion
in the appropriate bargaining unit.
The remaining principal question presented by the
evidence for determination in this case is whether Matos'
discharge by Respondent Employer on September 13,
1975, was solely predicated upon Matos' failure and refusal
to pay a membership fee and dues to the Union, or whether
his discharge was discriminatorily motivated by Respon-
dent Union in reprisal for antiunion remarks made by
Matos. A determination of this issue, however, can be
made only subsequent to a determination as to whether the
evidence establishes that Respondent Union had knowl-
edge of the antiunion remarks made by Matos, and
whether Respondent Union ever discharged its duty to
properly advise Matos of the nature and extent of his
contractual obligation to procure and maintain member-
ship in the Union. I do not credit Matos' testimonial denial
that no union representative ever asked him to join the
Union and pay dues. In this regard, a review of the credible
evidence of record established that prior to being assigned
to the North store Matos had been approached by several
union and management representatives about his nonmem-
bership in the Union.
The evidence further established that subsequent to
Matos' assignment to the North store he was asked by
Nicoles Burgos why he did not pay union dues; that Colon
told Matos he had to pay union dues; that Union Vice
President Rosich asked Matos why he did not pay union
dues; that Store Manager Fernandez told Matos he
understood Matos did not pay union dues and advised him
if he did not do so he would be discharged; that Union
President Gutierrez told Matos it was necessary for him to
join the Union and on a subsequent occasion asked him to
sign the checkoff authorization which Matos refused to do;
that Union President Gutierrez spoke to Matos again
about joining the Union but he admitted he did not advise
Matos that the Union could request his discharge if he did
not join the Union; and that Rafael Diaz also told Matos it
was necessary for him to join the Union.
The record also shows according to Matos' testimony,
which I credit, that Union President Gutierrez asked him
whether he was against the Union because Gutierrez had
learned about several statements Matos had made against
the Union; that fellow employee Perez corroborated
Matos' testimony about his antinunion remarks to Union
President Gutierrez; and that Union President Gutierrez
himself admitted that other union members told him about
Matos' antiunion remarks. Based upon the foregoing
credible evidence I hereupon conclude and find that not
only did Matos make remarks against the Union and
Union President Gutierrez on several occasions, but that
the Union (President Gutierrez) also had knowledge of
Matos' antiunion remarks.
With respect to the question as to whether Respondent
Union discharged its fiduciary duty to properly advise
Matos of his obligation for membership in the Union, the
credible evidence shows that the union and management
representatives asked Matos about his union membership
on several occasions and, at the same time, told him that it
was necessary for him to join the Union, that if he did not
join the Union his job could be in jeopardy or he could be
discharged for not obtaining membership in the Union.
Although Manager Fernandez reported his conversation
with Matos about his nonmembership to Union Vice
President Rosich, he nevertheless admitted that he did not
know that the Union could request the discharge of Matos.
Matos did not deny the occurrence nor the substance of
these conversations. Thus, the above conversations with
Matos about his nonmembership were pursued by the
Union and Matos certainly had knowledge of Respondent
Union's efforts to subscribe his membership. However, the
only question raised by the several conversations is
whether they constituted clear notice of what was required
of Matos, so as to enable Respondent Union to enforce its
union-security agreement. As counsel for the General
Counsel pointed out, the Board has long held that:
[W]hen a union requires a new employee to perfect
membership under a lawful union-security agreement,
it has a duty to notify the employee, at some point, as to
what his "membership" obligations are. To permit a
union to lawfully request the discharge of an employee
for failure to meet his dues-paying obligations, where
the provisions relating to such obligations are not
disclosed to the employee, would be grossly inequitable
and contrary to the spirit of the Act. Philadelphia
Sheraton Corporation, 136 NLRB 888, 896 (1962), enfd.
sub nom. N.LR.B. v. Hotel, Motel and Club Employees'
Union, Local 568, AFL-CIO, 320 F.2d 254 (C.A. 3,
1963).
The Board has further held that,
778
PUEBLO INTERNATIONAL, INC.
where the protection of an individual employee's right
to continued employment is to be balanced against the
statutorily restricted right of a union to enforce a
union-security agreement requiring membership as a
condition of employment, a union must show that it has
dealt fairly with the employee and given him clear
notice of what is required of him. Absent such a
demonstration the individual's rights must be held
paramount and protected. [Local 545, International
Union of Operating Engineers, AFL-CIO (Joseph Sara-
ceno & Sons, Inc.), 161 NLRB 1114, 1121 (1966).]
Most of the conversations with Matos involved an inquiry
as to why he was not paying dues, or statements to the
effect that he should become a member, that it was
necessary that he become a member, and management
(Fernandez) told him if he did not become a member he
could jeopardize his job or be discharged. Although Union
President Gutierrez told Matos it was necessary that he
join the Union such statement was not couched in
language which embraced a time frame nor did it
constitute an ultimatum to Matos to join the Union or the
Union would recommend his discharge. Nor did Union
President Gutierrez advise Matos that under the contract
the Union could recommend his discharge. The record
does not show that Matos had ever seen or was ever given a
copy of the contract or a written and formal notice as an
ultimatum to join the Union within a certain period of time
or be subject to the Union's recommendation for his
discharge.
When all of the above factors are considered along with
the fact that no union representative ever mentioned the
contractual nature of the union-security provision, a copy
of which contract Matos has never seen, as well as the long
duration (3 or 4 years) of Matos' nonmembership employ-
ment with Respondent Employer, it would be highly
speculative to conclude that such conversations with Matos
constituted the clear notice of Matos' obligation under the
contract which the Board's decisions require.
Consequentially, I conclude and find such conversations
insufficient to support a finding that the Union discharged
its fiduciary duty to properly and clearly notify Matos of
his obligations under the union-security contract. It is
particularly noted that the strongest admonition to Matos
about his nonmembership in the Union was given by
Manager Fernandez and not by any representative of the
Union. Hence, it becomes inconceivable on the record to
find that Respondent Union ever discharged its fiduciary
duty to clearly notify Matos of his membership obligations
under the union-security provisions of either contract.
Thus, having failed to notify Matos with respect to the
nature and extent of his contractually defined membership
obligations, Respondent Union could not lawfully seek his
discharge for a failure to satisfy its membership require-
ment. International Association of Bridge, Structural and
Ornamental Reinforced Iron Workers, Riggers & Machinery
Movers, Local Union 377, AFL-CIO, 189 NLRB 68 (1971).
However, even if the Union's notice to Matos were in
fact found clear and sufficient within the context of the
law, I nevertheless conclude and find that Respondent
Union's recommendation for his discharge, having oc-
curred within such close proximity to his prior antiunion
remarks, clearly reveals the Union's overriding discrimina-
tory motive for recommending Matos' discharge. Since
Matos has been working in the North store for well over I
year without any serious threat of discharge while both
union and management representatives were well aware he
was not a member of the Union and did not pay dues, it
becomes even clearer that the Respondent's contention
that Matos was discharged for failure to join the Union
and pay dues is a pretext to mask their otherwise unlawful
discharge of Matos for his antiunion remarks. In other
words, Matos "could well have assumed" that Respondent
Union was not really interested in securing his membership
or did not deem it urgent, and that he could work freely for
Respondent Employer while remaining a nonmember as he
had done successfully for over 3 years. Rocket and Guided
Missile Lodge 946, International Association of Machinists
and Aerospace Workers, AFL-CIO (A erojet-General Corpo-
ration), 186 NLRB 561 (1970).
I do not deem significant the fact that Matos was
discharged within less than 31 days after the execution, or
the effective date of the current contract, as distinguished
from his long working tenure and nonmembership in the
Union under the prior contract. In either event, Respon-
dent Union did not give clear and sufficient notice to
Matos and its recommendation for his discharge, accompa-
nied by Respondent Employer's actual discharge of Matos,
having been discriminatorily motivated by Matos' anti-
union remarks instead of his failure to join the Union and
pay dues, constituted a violation of Sections 8(b)(2) and
8(a)(3) and (I) of the Act as alleged.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent Employer set forth in
section III, above, occurring in connection with the
operations of Respondent Employer described in section 1,
above, have a close, intimate, and substantial relationship
to trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and
obstruction commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent Employer and Respon-
dent Union have engaged in unfair labor practices
warranting a remedial order, I shall recommend that they
cease and desist therefrom and that they take certain
affirmative action to effectuate the policies of the Act.
It having been found that Respondent Union recom-
mended the discharge of Roberto Matos Burgos and that
Respondent Employer complied with such request by
discharging Roberto Matos Burgos in violation of Section
8(b)(2) and 8(a)(3) of the Act, respectively, the recommend-
ed Order will provide that Respondent Employer offer
Roberto Matos Burgos reinstatement to his job, and that
Respondent Employer and Respondent Union, jointly and
severally, make him whole for loss of earnings if any,
within the meaning and in accord with the Board's decision
in F. W. Woolworth, Company, 90 NLRB 289 (1950), and
Isis Plumbing & Heating Co., 138 NLRB 716 (1962), except
779
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as specifically modified by the wording of such recom-
mended Order.
Because of the character of the unfair labor practices
herein found, the recommended Order will provide that
Respondent Union and Respondent Employer cease and
desist from or in any other manner interfering with,
restraining, and coercing employees in the exercise of their
rights, guaranteed by Section 7 of the Act. N.L.R.B. v.
Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941).
Upon the basis of the above findings of fact and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Pueblo International, Inc., the Respondent Employ-
er is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Union de Empleados de los Supermercados Pueblo,
Respondent Union, is and has been at all times material
herein a labor organization within the meaning of the Act.
3. By causing Respondent Employer to discriminate in
regard to tenure of employment of Roberto Matos Burgos
for uttering remarks against the Union, Respondent Union
has engaged in unfair labor practices condemned by
Section 8(b)(2) of the Act.
4. By discriminating in regard to tenure of employment
of Roberto Matos Burgos, by discharging him in reliance
upon Respondent Union's request that Matos be dis-
charged for failing to join the Union and pay union dues in
accordance with the Union's security contract provisions,
Respondent Employer also interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed
in Section 7 of the Act, and thereby engaged in unfair labor
practices condemned by Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
780