Puerto Rico Cereal Extracts, Inc.

National Labor Relations Board - Board Decisions

Jun 4, 1951

94 N.L.R.B. 1032 (N.L.R.B. 1951)

1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the contract bar rule, of which other raiding unions may well see
fit to take advantage with consequent unstabilizing effects upon labor
relations.
The majority rely upon the Boston Machine Works case in finding
that a schism occurred as a result of the formal dissolution vote taken
at the December 4 meeting. The cited case, however, presents sub-
stantially different facts. The Board's finding of schism in that case
was expressly predicated upon those particular circumstances, which
revealed an intraunion split of such proportions as to seriously affect
the ability of the bargaining representative to function in that
capacity.
We do not believe that the normal bargaining relationship between
the Employer and the certified bargaining representative in this case
"has become a matter of such confusion . . . that the relationship
between them can no longer be said to promote stability in indus-
trial relations." 13 The Intervenor has continued to function to all in-
tents and purposes exactly as it did before the alleged schism. Four
of its five officials have remained loyal. The Employer is in no doubt
as to the union with which it must bargain. Moreover, by their 17 to
15 vote to unseat the leader of the faction favoring the Petitioner, the
employees in effect formally repudiated the vote for dissolution taken
at the previous regular meeting 14 Under these circumstances, we
would find the contract to be a bar and dismiss the petition, without
prejudice to its refiling a reasonable time before December 31, 1951,
the termination date of the existing contract.
13 Boston Machine Works Company , supra.
14 Cf Diagraph-Bradley Industries, Inc., 91 NLRB 605
PUERTO RICO CEREAL EXTRACTS, INC. and CONFEDERACION GENERAL DE
TRABAJADORES DE PUERTO RICO (AUTENTICA). Case No. 38-C,4-
176. June 4, 1951
Decision and Order
On February 14, 1951, Trial Examiner David F. Doyle issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engab ng 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 Interme-
di ate Report attached hereto. The Trial Examiner also found that the
Respondent had not engaged in certain other alleged unfair labor
practices and recommended dismissal of these allegations. There-
after, the Respondent filed exceptions to the Intermediate Report and
a supporting brief.
94 NLRB No. 157.
PUERTO RICO CEREAL EXTRACTS, INC. 1033
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the following modifications and
additions:
We agree with the Trial Examiner's finding, based as it was largely
upon his observation of the witnesses, that the Respondent discrim-
inatorily discharged Marrero, Francia, and Figueroa, and thereby vio-
lated Section 8 (a) (3) of the Act. With respect to the work record
of Marrero, the record shows, in addition to the facts shown in the
Intermediate Report, that on several occasions during the period pre-
ceding the discharges, he was reproved for leaving his post and or-
dered back to work. Further, the record shows that Francia, as a
watchman, was remiss in his duties, either by failing to punch the
time clock or by punching it off schedule, on more occasions than the
't'rial Examiner reported. However, we do not deem these minor
modifications of the Trial Examiner's findings sufficient to alter our
conviction, based on the entire record, that the Respondent discharged
these employees because of their union activities, and not, as it asserted
long after their discharge, because of inadequacies in their work per-
formance. Our conclusion of discriminatory motivation is strength-
ened particularly by the Respondent's officials' unequivocal statements
of antinnion purpose made to two of the employees at the time of their
discharge.
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, Puerto Rico
Cereal Extracts, Inc., its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Confederation General de Traba-
jadores de Puerto Rico (Autentica), or any other labor organization
of its employees, by discharging or refusing to reinstate any of its
employees, or by discriminating in any other manner in regard to their
hire or tenure of employment or any term or condition of employment.
(b) Engaging in surveillance of its employees' self-organizational
activities upon behalf of Confederation General de Trabajadores de
Puerto Rico (Autentica), or of any other labor organization.
' Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act,
the Board has delegated its powers.in connection with this case to a three-member panel
[ Chairman Herzog and Members Houston and Reynolds].
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) 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 Confederation General de Traba-
jadores de Puerto Rico (Autentica), 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 bar-
gaining or other mutual aid or protection, or to refrain from any or
all 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 Pablo Marrero Santos, Manual Colon Francia, and
Thomas Figueroa immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to their
seniority or other rights and privileges, and make them whole for
any loss of pay they may have suffered by reason of the Respondent's
discrimination against them in the manner described in the section of
the Intermediate Report entitled "The remedy."
(b) Upon request, make available to the Board or its agents, for
examination and copying, all payroll records and reports, social se-
curity payment records, time cards, personnel records and reports,
and all other records necessary to analyze the amounts of back pay
due and the right of reinstatement under the terms of this Order.
(c) Post at its plant at Toa Baja, Puerto Rico, copies in Spanish
translation of the notice attached hereto and marked "Appendix." 2
Copies of said notice, to be furnished by the Regional Director for
the Twenty-fourth Region, shall, after being duly signed by Re-
spondent's authorized 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. Reason-
able steps shall be taken by the Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Twenty-fourth Region
in writing, within ten (10) days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the Respondent interfered with the rights of its employees by threats
of reprisal and promises of benefit, by interrogation as to their union
' In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be inserted before the words "A Decision arid Order ," the words
"A Decree of the United States Court of Appeals Enforcing."
PUERTO RICO CEREAL EXTRACTS, INC. 1035
sympathies, membership, and activities, and by preparation and circu-
lation of antiunion petitions, be, and it hereby is, dismissed.
Appendix
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, as amended, we hereby notify our employees that :
IVE WILL NOT engage in surveillance of our employees' self-
organizational activities.
WE WILL NOT discourage membership in CONFEDERACION
GENERAL DE TRABAJADORES DE PUERTO RICO (AUTENTICA), or in
any other labor organization of our employees by discharging any
of our employees or in any other manner discriminating in re-
gard to their hire or tenure of employment or any term or con-
dition of employment.
IVE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form, join, or assist CONFEDERACION GENERAL DE TRABAJADORES
DE PUERTO RICO (AuTENTICA), 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, or to
refrain from any or all of such activities, except to the extent
that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment,
as authorized in Section 8 (a) (3) of the National Labor Re-
lations Act.
WE WILL offer to Pablo Marrero Santos, Manuel Colon Francia,
and Thomas Figueroa immediate and full reinstatement to their
former or substantially equivalent positions without prejudice
to any seniority or other rights and privileges previously enjoyed;
and we will make them whole for any loss of pay suffered as a
result of the discrimination against them.
All our employees are free to become or remain members of the
above-named union or any other labor organization.
PUERTO Rico CEREAL EXTRACTS, INC.,
Employer.
Date------------------- 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.
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report and Recommended Order
Mr. George L Weasler, for the General Counsel.
Mr. Yumil Galib Frangie, of San German, P. R., for the Respondent
Mr. Vincente,Maroiglao, of San Juan, P. R, for the Union
STATEMENT OF THE CASE
Upon a charge filed on November 28. 1949. by Confederation General de
Trabajadores de Puerto Rico (Autentica), herein called the Union, the General
Counsel of the National Labor Relations Board' by the Regional Director for
the Twenty-fourth Region (Santurce, Pureto Rico), issued his complaint dated
September 8, 1950, against Puerto Rico Cereal Extracts, Inc, herein called the
Respondent or the Company, alleging that the Respondent had engaged in and
was engaging in unfair labor practices affecting commerce within the meaning
of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor
Relations Act as amended, 61 Stat 136, herein called the Act.
With respect to the unfair labor practices the complaint alleged in substance
that: (1) The Respondent on or about November 23, 1949, discharged Pablo
Marrero Santos, Manuel Colon Francma, and Toinas Figueroa, and since that (late
has failed and refused to reinstate said employees because of their membership
in and activities on behalf of the Union, and because they engaged in concerted
activities with other employees for the purpose of collective bargaining or other
mutual aid and protection; (2) that Respondent interfered with, restrained,
and coerced its employees by threats of reprisal or promise of benefit, to refrain
from assisting, becoming, or remaining members of the Union, or engaging in
concerted activities for the purpose of collective bargaining or other mutual
aid or protection ; by questioning its employees concerning their sympathies,
membership in, or activities on behalf of, the Union; by surveillance of the or-
ganizational activities of its employees and of the Union ; by preparing and
circulating among its employees antiunion petitions for the purpose of en-
couraging its employees to repudiate the Union, and to discourage its employees
from engaging in union activities ; and by granting wage increases to its em-
ployees for the purpose of discouraging membership in and activities on behalf
of the Union; and (3) that by the foregoing conduct the Respondent engaged
in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of
the Act.
Copies of the charge, the complaint, and a notice of hearing were duly served
upon the Respondent and the Union.
Respondent filed an answer in which it admitted the jurisdictional allegations
of the complaint and that the Union was a labor organization within the meaning
of the Act. As to the discharges of the employees named in the complaint, the
answer admitted that the employees were discharged on or about November 23,
1949, but denied that these discharges were effected for the reasons stated in
the complaint and affirmatively alleged that the said employees were discharged
because of their inefficiency and lack of discipline, and that at the time of
said discharges Respondent had no knowledge that said employees had joined
or assisted the Union or engaged in any concerted activities with other employees
for the purpose of collective bargaining or other mutual aid or protection
Pursuant to notice a hearing was held at San Juan, Puerto Rico, on October
12-19, 1950, before David F. Doyle, the undersigned Trial Examiner duly desig-
nated by the Chief Trial Examiner. The General Counsel and Respondent were
1 The General Counsel and his representative at the hearing are herein called the General
Counsel, and the National Labor Relations Boaid is called the Board,
PUERTO RICO CEREAL EXTRACTS, INC. 1037
represented by counsel and the Union by one of its officers. Full opportunity to
be beard, to examine and cross-examine witnesses, and to introduce evidence
bearing upon the issues, was afforded all parties. At the conclusion of the hear-
ing, the General Counsel moved to conform the pleadings to the proof as to names,
dates, and minor variances. This motor was granted with consent of,all parties.
At the conclusion of the General Counsel's case and again at the conclusion of
the evidence, the Respondent moved generally to dismiss the complaint, and
made separate motions addressed to various allegations of the complaint. The
undersigned reserved ruling on these motions. They are stated and decided
in the course of this Report. Also at the close of the hearing the parties were
advised they might present oral argument, proposed findings of fact and con-
clusions of law, and briefs. All parties waived oral argument and none submitted
briefs
Upon the entire record in the case and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent is a corporation organized under the laws of the Territory
of Puerto Rico, with its principal office and place of business at Toa Baja, Puerto
Rico, where it engages in the manufacture and distribution of malt and malt
products. Respondent in the course and conduct of its business operations during
the period October 1, 1949-October 1, 1950, caused a substantial amount of raw
materials, such as cereals, syrups, and related products, and machinery and
other equipment, of a value in excess of $75,000 to be purchased, transported,
and shipped in interstate commerce from and through various States and Terri-
tories of the United States to its Toa Baja plant. During the same 12-month
period the Company sold malt and malt products valued in excess of $200,000
within the Territory of Puerto Rico. At the hearing the Respondent conceded
that it was engaged in commerce within the meaning of the National Labor
Relations Act
Upon the Respondent's answer, its stipulation in open court as to the nature
and extent of its business, and the Board's plenary jurisdiction over trade and
commerce in the Territory of Puerto Rico, I find that the Respondent is engaged
in commerce within the meaning of the Act.
11 TIIE LABOR ORGANIZATION INVOLVED
Confederacion General de Trabajadores de Puerto Rico (Autentica) is a labor
organiiaiti'w within the meaning of Section 2 (5) of the Act
III TIIE UNFAIR LABOR PRACTICES
A Bacl„yroa'nd of the controversy; individuals involved; undisputed facts
The Respondent conducts its business in the town of Toa Baja, Puerto Rico,
where it maintains a plant in which it manufactures and bottles beer and other
malt beverages. Operations of the plant began in April 1949. Within some
mouths thereafter the Company had a production and maintenance force of
approximately 43 workmen, who were assigned to 3 departments in the plant,
namely the brewhouse, the bottling department, and the office. All employees]
when hired, served a 90-day probationary period during which they were tem-
2 The finding is based upon the complaint , answer, and stipulation of the pasties
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
porary employees. After demonstrating satisfactory performance of duty
during that period, they became permanent employees.
The general manager of the enterprise was Francisco Vincenty. The comp-
troller of the Company was Luis Antonio Aranda, and the foreman of the
bottling department was Blanco Roman Hernandez'
Among the workers acquired by the Respondent were the three employees
who were discharged on November 23, 1949 Pablo Marrero Santos was as-
signed to the bottling department. One of his duties was to inspect bottles as
they came from the washer. This inspection was performed as the bottles were
passed mechanically before a bright-electric light Marrero's task was to in-
spect bottles for an hour and then to fold up or build up paper box cartons for
an alternate hour in the same department. This change of work afforded some
relief to the strain on the eyesight of inspectors Tomas Figueroa was one of
three watchmen who maintained a 24-hour guard on the plant. Figueroa and
the other watchmen worked on three shifts-midnight-8 a in. ; 8 a. m -4 p. in. ;
4 p. m.-midnight. These shifts were rotated on a 15-day basis Each watch-
man was allowed 1 day off each week. Manuel Colon Francia was the relief
watchman, who worked on the regular watchman's day off ; he also worked 3
days each week in the bottling department. These three employees were paid
at the rate of 30 cents per hour
There is no dispute about the above facts.
B. The organizational efforts of the diischaigees ; the action of management;
sit,vcrllance; the discharges
The principal witnesses on behalf of the General Counsel were the three
dischargees, Pablo Marrero Santos, Manuel Colon Francia, and Tomas Figueroa.
According to their testimony, Pablo Marrero Santos, herein called Marrero, and
Manuel Colon Francia, herein called Francia, were the sponsors and organizers
of the union movement among the employees.
Francia testified credibly that he began employment with the Respondent
on April 27, 1949. When he was hired he understood that he would be a tem-
porary employee for a period of 90 days and that if during that period his
work was satisfactory he would become a permanent employee of the Company.
As a watchman his immediate superior was Aranda, the comptroller ; as a
stacker in the bottling department his superior was Roman. He stated that a
week or two before his discharge on November 23, 1949, the employees began
the formation of the Union. The reason for this action was the dissatisfaction
of the employees with their rate of pay. After some discussion among the em-
ployees about forming a union, Francia obtained some blank authorization cards
from Pedro Santos, the president of the Union at the Carioca plant. Francia
and Marrero then began the process of passing out the cards to fellow em-
ployees, and obtaining their signatures. Cards were passed to the employees
in the plant, in the washroom, and outside of the plant.
After a week or two of this activity, Marrero and Francia called a meeting
of employees for 9: 30 Sunday morning, November 20, 1949, at the home of Jose
Llanos, an employee at a place known as Abra Estrecha. Francia personally
told the following workers of the proposed meeting : Francisco Santiago, Juan
Cintron, Luis Cintron, Hilarion Silva, Fulgencia Cintron, Gilberto Rios, Juan
Maria Rivera, and several others.
3It was stipulated by..all parties that these men occupied the designated positions in
management It is also worthy of note that Blanco Roman Hernandez is referred to in
the testimony as Blanco Roman.
PUERTO RICO CEREAL EXTRACTS, INC. 1039
At the time and place of the meeting only a few workers appeared so Francia
obtained a bicycle for the purpose of riding to Tres Palmas, a neighboring
village, to round up Aurelia Garcia and other employees, who lived in that
locality. As he rode to Tres Palmas, Foreman Blanco Roman driving his car
approached, and stopped to talk to Francia. Roman asked Francia where
Marrero was. Francia told Roman that Marrero was a little further down the
road. Roman then asked Francia if Marrero was at the meeting or outside
on the road. Francia told him that Marrero was outside on the road. Roman
then said he was bringing to Marrero the latter's hat, which Marrero had left
at Roman's house. In the car with Roman was Aurelia Garcia, the man to
whom Francia wished to speak, so Francia did not continue on to Tres Palmas,
but returned to the meeting place. When he arrived near the meeting place
Roman's car was parked on the road, and he was engaged in a conversation with
Marrero and Pedro Santos, the president of the Union at the Carioca plant.
The conversation lasted about 15 minutes. The place on the road where these
three men engaged in the conversation was approximately 150 feet from the
home of Jose Llanos, the proposed meeting place.
The only persons attending the meeting were the three dischargees, Jose
Llanos, and Pedro Santos. Because of the very small attendance, the idea of
the meeting was abandoned, but on ensuing days Marrero and Francia continued
to pass out authorization cards and to collect those which were signed by
the men. On Wednesday, November 23, 1949, Francia was discharged. In the
weeks immediately preceding his discharge he had not been warned by the
Company that his work was unsatisfactory in any particular. His discharge
was accomplished in the same manner as the discharges of the other two dis-
cbargees. It was undisputed at the hearing that at approximately 8 o'clock on
November 23, 1949, the three employees were handed identical letters, of which
the following is an English translation :
DEAR SIR :
We hereby wish to inform you that this corporation will no longer need
your services since the 23rd of November, 1949.
Enclosed we are sending you a check in the amount of $62.40 as separa-
tion pay according to the law. With nothing further we remain,
The above letter was handed to Francia by Aranda, the comptroller of the
Company. When Francia asked the reason for his discharge Aranda told him
that the letter was self-explanatory. Vincenty then escorted Francia off the
premises of the Company.
Francia testified that after his discharge both Marrero and he continued
to obtain signatures upon authorization cards and that ultimately they ob-
tained 27 signatures authorizing the Union to represent employees.
According to the testimony of Francia he obtained the cards about the 15th
of November and began obtaining signatures a few days thereafter. He stated
that among those who signed for the Union before he was discharged were the
following: Juan Cintron, Fulgencio Cintron, Luis Cintron, Hilarion Silva, Fran-
cisco Santiago, Gilbert Rios, Ismall Valentin, Pablo Marrero, and Tomas
Figueroa.
Francia also testified that he was not told the Company's reason for his dis-
charge until he attended a conference in connection with this case at the Na-
tional Labor Relations Board in Santurce, Puerto Rico, on June 27, 1950. At
that time. and place he learned for the first time that the Company claimed. tha;t-ti
on several occasions he had failed to punch his watchman's clock, or had punched
it tardily.
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Marrero testified that his job was to inspect bottles and to shape up paper
cartons in the bottling department. On two occasions his superiors had spoken
to him as to his conduct in the plant. On one of these occasions he had thrown
a bottle containing beer to another employee who had failed to catch the bottle.
The bottle broke, and the glass and beer spilled on the floor. Vincenty, the general
manager, was in the bottling department at the time and he spoke to the em-
ployees there present and told them that the bottles cost 3 cents each and that
they were not to be broken through carelessness or horseplay On another occa-
sion Marrero had accidently tipped over a can containing paint. Another em-
ployee claimed that this action was deliberate, and for this, Foreman Roman had
reprimanded Marrero. There is no dispute that both of these incidents occurred
some 6 to 8 weeks prior to the discharge of the three men. During the interval be-
tween the latter of these incidents and his discharge, Marrero was not told that
his work was unsatisfactory, or that he was to be disciplined for this conduct.
Marrero also testified to the organizational efforts of the employees. He tes-
tified that the talk about organizing the Union began about a month and a half
before the men were discharged. Prior to November 15, he attempted to get
some blank union authorization cards from the attorney for the Union, and later
from Vincente Marciglio, an officer of the Union, but was unsuccessful in these
efforts. Later he met with Mareigho, who informed him that he had given a
substantial number of cards to Francia. Thereafter Marrero and Francia act-
ing together passed out the cards and gathered in the signatures. According
to the testimony of Marrero the cards were obtained about 3 or 4 weeks before
the men were discharged.
Immediately upon receipt of the cards, Francia and Marrero passed them
out to the men, and collected those cards which the employees signed Marrero
signed up the 2 truck drivers, Dolores Calderon and Alejandro Rodriguez, and
Luis Cintron, Fulgencio Cintron, and others. Before the men were discharged,
they had collected more than 12 signed cards. A few days before November 20,
1949, Francia and Marrero decided to invite all interested employees to a meet-
ing at the house of Jose Llanos at Abra Estrecha, at 9. 30 a in on Sunday, No-
vember 20, 1949. Francia and Marrero spread the word of the proposed meet-
ing throughout the plant, by word of mouth
On Saturday night, November 19, 1949, Marrero went to Santurce to visit a
friend. When he arrived at the friend's house he was told that the friend was
at the home of Foreman Blanco Roman. Marrero went to Roman's home. While
he was there, Roman threw his arm around Marerro and said laughingly, "Well,
Marrero, you have become a labor leader. I used to be a labor leader myself
and there's nothing in it. All I did was to gain the hatred of the people." When
Marrero left Roman's house he forgot to take his hat.
On the following morning the meeting was poorly attended. Present were the
three dischargees, Pedro Santos, the president of the Union at the Carioca plant,
Alvaro Oquendo, and another employee who lived nearby. While they were at
the roadside near the meeting place Roman drove up in his car and said with
a smile, "Well, there's practicaly nobody here. I was over at Naranjito and
I was watching those that might come here." Approximately eight workers
lived in the town of Naranjito 4
Roman told Marrero that the watchman at the factory had his hat and that
the watchman would give him the hat if he asked for it. Later in the day
Marrero obtained his hat.
I This number of workers living at Naranjito was stipulated
PUERTO RICO CEREAL EXTRACTS, INC. 1041
According to Mari ero the meeting was so poorly attended that the employees
present called off the meeting and returned to their homes
Marrero testified that early on the morning of November 23, 1949, he was
called into the office and given a copy of the letter set forth above, addressed
to himself, by Aranda, He asked Aranda why he was being fired. Aranda
said, "You know why." Marrero refused to accept the letter and the check.
Aranda then asked his address so that the letter and check could be marled to
him. Aranda said, "Alright, Marrero, we do not need your services any longer.
Get out of here " As Marrero left the office Vincenty accompanied him. Vin-
centy said, "I don't want any unions here." At the gate leading from the
plant to the road, Vincenty said to Marrero, "If I have to remain here with
only one or two men I will work with them, but I don't want any unions."
Immediately upon his discharge, Marrero went to the office of the Board
at Santurce where he conferred with a field examiner who told him to accept
the check as his acceptance of it would have no bearing on the merits of his
proposed case against the Company. About 3 o'clock in the afternoon Marrero
returned to the plant and received his copy of the letter and a check for $62 40
plus pay for the time he had worked While be was near the office Vincenty
called to him and said, "Marrero, come here, will you? Marrero, never mind
about this union business. Take that money that we have given you. After
it is gone come back here." Marrero said to Vincenty, "Well, Don Paco, if we
workers have tried to organize ourselves here, it is because we were told that
after three months employment in the factory we would get a raise and we
have not been given any raise And also the supervisors will discharge men
for insignificant reasons "
Both Marrero and Francia testified in a straightforward and frank manner.
The testimony of each corroborated the other. Though their testimony dif-
fered on some points, these were minor. These two witnesses were cross-ex-
amined very thoroughly on all phases of their testimony, but nothing was dis-
closed which could be considered a valid reason for doubting their testimony.
I deem them to be reliable, trustworthy witnesses, so credit their testimony
Tomas Figueroa, the third dischargee, also testified on behalf of the Gen-
eral Counsel. He was a watchman in the plant. He stated that he began
working for the Company in the spring of 1949, and joined the Union about 9 or
10 days before his discharge. He signed an authorization card at the request
of Francia. He had no indication from the Company that his work was un-
satisfactory until the morning of November 23, 1949, when he too was given
the form letter and a check for $62 40 plus the wages he had earned. As he
could not read he asked Aranda to read the letter to him. Aranda complied with
his request As he left the office he said to Aranda, "Aranda, tell me some-
thing. Why am I being discharged from my work?" Aranda replied, "Be-
cause you are one of those who gave your signature to the union."
Figueroa also testified that he attended the abortive union meeting on Novem-
her 20, 1949. On that occasion Jose Llanos, Pablo Marrero, Manuel Francia,
and Pedro Santos were present. At about the time the meeting was to begin
Blanco Roman drove his car along the highway, and stopped to engage in a
conversation with Pedro Santos, while Pablo Marrero talked to Antonio Nevares,
the carpenter who accompanied Roman.
Figueroa admitted that on two occasions he had complained to the office about
changes in the schedule of the watchmen on the ground that the changes in
shifts were not quite fair to him He stated that these differences were minor
and had not disturbed the good relations existing between company officials and
himself or between his fellow watchmen and himself. He testified that none of
953841-52-vol 94 67
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his superiors had ever complained to him about the way he performed his work
or reprimanded him for any conduct. From all of the evidence it is apparent that
Figueroa was given no reason for his discharge until Vincenty testified at the
hearing.
Figueroa as a witness impressed the undersigned very favorably. He is con-
siderably older in years than the other employees and apparently has received
no formal schooling, as he cannot read or write. However, as a witness his
bearing was characterized by a courteous dignity, and his testimony was offered
with such simplicity and fairness that it could not fail to be convincing. His
testimony is credited fully.
Francisco Vincenty, general manager of the Company, was examined by the
General Counsel under Rule 43 B of the Rules of Civil Procedure for the United
States District Courts. He stated that prior to the discharges the Company
had no knowledge of union activity in its plant:
Vincenty testified that the Company began operations at its plant at Toa Baja,
Puerto Rico, around April 1949 and that at the time of hiring the men were re-
quired to sign an agreement to the effect that their employment was temporary
for a period of 90 days and that if their work was satisfactory during that period
they would become permanent employees. He stated that the three dischargees
were hired pursuant to this arrangement and had become permanent employees
of the Company.
Vincenty testified that he ordered Aranda to discharge the three men on
November 23, 1949. Prior to taking this action he had on several occasions
discussed the prospective discharges with Aranda, the comptroller, and Roman,
the foreman. The discharge of Marrero had been discussed and was finally
effected because Roman had reported to him on several occasions that Marrero
did not obey Roman, and on one occasion Marrero had deliberately spilt a can of
paint, and on another occasion Vincenty himself had seen Marrero throw a bottle
containing beer to another man ; the bottle fell to the floor and broke spilling its
contents. Vincenty testified that on the last-mentioned occasion he spoke to all
the employees about throwing bottles. In addition to these faults, Marrero-
wandered in and out of the plant, and did not observe proper discipline.
He testified that Francia, as a watchman, was required to punch a watchman's
clock at two stations in the plant every hour on the hour during his shift on
duty. The punches, when made, registered on a chart in the time clock and
that it was from examination of these charts that Aranda learned of Francia's
failure to punch his clock, promptly or at all, on eight occasions between October
5-November 23, 1949. After Francia had failed to punch his clock on the second
occasion, Aranda and Vincenty spoke to him about it. On the day before the dis-
charge Francia had not punched for 3 or 4 hours.
He testified that Tomas Figueroa was always having trouble with the other
watchmen ; that the other watchmen complained that Figueroa did not accommo-
date them as to working hours and other small favors. Also another watchman,
Ramirez by name, had reported that on two occasions he had found cases opened,
and a couple of bottles of beer missing from the case. Vincenty stated that he
did not mention the incident of the opened cases and the missing beer to Figueroa
because it was a very delicate subject ; nor had he ever counselled with Figueroa
concerning his relationship with the other watchmen.
Vincenty gave the following version of management activity leading up to
the discharges. He testified that for approximately 2 months prior to the dis-
charges he had been considering discharging some men for general negligence and
inefficiency. In the proposed discharges he was anxious to proceed in accord-
ance with law, so he consulted the Department of Labor of the Territory of
Puerto Rico concerning the way in which he would effect the discharges. Around
PUERTO RICO CEREAL EXTRACTS, INC. 1043
November 1, 1949, he discussed the prospective discharges with Juan N. Cabal-
lero, acting director of the Industrial Supervision Service of the Department of
Labor. In this interview with Caballero, Vincenty inquired as to his right to dis-
charge unsatisfactory employees, and as to proper procedure in discharging them.
This interview was followed by a letter addressed to the Department of Labor
on November 16, 1949. This letter is as follows:
Dear Mr. CABALLERO:
I assume that you will recall that about two weeks ago I went to consult
you in connection with a small number of workers who work at our factory
of Malta Caribe, who as I informed you have been doing a very poor job and
besides are careless and lazy. It is our belief that there is some legal way
for us not to tolerate these workers who demoralize the others.
We shall appreciate for your Department to advise us as to our procedure
in this matter.
Awaiting your advice and thanking you in advance, we remain.
On November 21, Caballero, on behalf of the Department of Labor, replied
as follows :
We acknowledge receipt of your communication dated November 16, 1949,
wherein you remind us of our interview concerning some of your workers
who have been performing a very poor job, are careless and lazy, thus
jeopardizing the normal operations and efficiency of the industry.
You now request this Department to furnish information regarding the
procedure to be followed in this matter. As long as it is your desire to
comply with the provisions of the law in this matter.
In response and for your better guidance we enclose herewith a mimeo-
graphed copy of Law No. 50 of 1949, which covers discharges without just
cause which will serve your purpose in solving the problems submitted
by you.
Act No. 50, Laws of Puerto Rico, 1949, which is referred to in the letter, pro-
vides that an employee who is discharged without just cause must be paid sepa-
ration pay equal to 1 month's wages in addition to wages earned to the date
of discharge. Vincenty testified that this letter was received on November 22
and that he ordered the discharges of the three employees on November 23.
Upon the discharge of the men he considered it to be prudent to pay them $62.40
separation pay, in addition to the wages which they had earned, as the Com-
pany wished to avoid all legal difficulties which might arise from the discharges
He testified that the first knowledge he had that the men were forming a union
was immediately after the men were discharged. At that time Marrero told
hun that lie was going to present the matter of his discharge to the proper
governmental authority.
The credibility of Vincenty's testimony will be discussed hereafter.
Luis Antonio Aranda, comptroller of the Company, testified that he handed
each of the dischargees their discharge letters at the order of Vincenty. He
stated that Francia had no conversation with him at the time of his discharge,
but that Marrero refused to accept the proffered letter and check. Later he
came back and accepted them and asked permission to take his clothes which were
in his locker Aranda testified that he accompanied Marrero to the locker and
that as Marrero left the plant lie told Aranda that he had some papers, and that
now he was going to form the Union. Aranda told him that if he wanted to
form a union the Company would not oppose it, but he ordered Marrero off the
company property because Marrero at that point attempted to call the employees
into a gathering or meeting. Aranda stated that his first knowledge of any
union activity at the plant was on the date of the discharges.
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He further testified that one of his duties as comptroller was to make a daily
check of the performance of duty by the night watchman. To do this he exam-
ined the charts of the watchman's clock each moaning. He noted that on eight
occasions between October 5, 1949, and November 3, 1949 , Francia had been off
schedule in punching or had not punched at all, for certain hours . At the time
of each check be called the attention of Vincenty to Francia ' s delinquency.
Vincenty, about 2 or 3 weeks prior to November 23, 1949, discussed with Aranda
the advisability of discharging Francia . However , neither official discussed
these delinquencies with Francia except at the occasion of the second delinquency.
When each of the dischargees asked him the reason for the Company ' s action
at the time of discharge he dismissed them with the answer that the letter was
self-explanatory
The testimony of this witness , as to his checking of the watchman 's clocks, and
his discovery of Francia 's delinquencies , which is supported by the clock charts,
is credited . His testimony as to the manner in which the discharges were ef-
fected-by letter and check-is also accepted However, the demeanor and
bearing of this witness was that of a highly interested party rather than that
of a disinterested witness For that reason , and in view of more credible
evidence, his testimony as to conversations with the dischargees at the tine of
discharge , and as to knowledge of the union activities , is not credited.
_. Blanco Roman Hernandez , foreman of the bottling department , was called
and examined by both the General Counsel and Respondent . Upon examination
as an adverse witness by the General Counsel , he testified that lie was the
immediate supervisor of Marrero and part-time supervisor of Francia . Francia's
duty as watchman 3 days a week was not performed under Roman 's supervision.
Roman testified to the incident in which Marrero spilled the paint, and placed
that incident as occurring about 2 months prior to lllarreio 's diseharge He
admitted at this point in his testimony that lie remembered an occasion when he
returned a hat to Marrero. His testimony in the first instance indicated that
this action took place before the men were discharged . At the next question,
however, he stated that he did not know whether this incident took place before
or after the men were discharged ,' but upon being recalled 2 days later by the
Respondent lie testified that he was very sure that this incident occurred after
the men were discharged e
He testified further that Marrero was unsatisfactory as an employee In
addition to his other faults he left his place of work a great deal and talked to
other employees in the plant, the yard, and the toilet . On many occasions he had
sent Marrero back to his post when he had observed him talking to the men.
He had complained about this to Vincenty.
He denied that he had ever said to Marrero that he had been a labor leader
and that all he acquired from that occupation was the hatred of the people.
However, he testified that during the years 1942-1943, he had been president of
the Union herein involved.
He also testified that he was not consulted by Vincenty as to the discharge of
the men during the weeks immediately preceding the discharges
The testimony of Roman is discussed hereafter.
In addition to the testimony of company officials, testimony of several em-
ployees was received . These employees , generally , evidenced such favoritism
for the Company and hostility toward the dischargees , that the undersigned has
serious doubts as to their veracity.
a Transcript, p 125
Transcript , pp 379, 385.
PUERTO RICO CEREAL EXTRACTS, INC. 1045
Antonio Nevares, mechanic and carpenter at the plant, testified that he ac-
companied Roman on the occasion when Roman returned to Marrero his hat and
that this incident occurred after the discharges. On that occasion Roman and
be talked to Marrero alone. On cross-examination the witness stated that lie
was paid 72 cents an hour and performed his duties with the assistance of a
helper whom he directed. He stated that the conversation between Roman and
himself and Marrero took place near Abra Estrecha, near the place where Jose
Llanos lives.
The purpose of Nevares' testimony was to support the testimony of Roman.
He appeared too anxious to do that. When it is considered that all production
and maintenance workers in the plant are paid 30 cents an hour, and Nevares
72 cents an hour, the economic gulf between the workers and this employee is
apparent. Nevares, as mechanic and carpenter responsible for the ,brewery
equipment, is in a position closer to the management than to the workers. His
demeanor, bearing, and testimony was that of a management official corroborating
the testimony of other officials rather than that of a disinterested employee.
I do not credit his testimony that the Marrero-Roman hat conversation took place
after the discharges. In this testimony, I believe, Nevares found it to his own
best interests to support Roman, and that his recollection of the event was
influenced by his desire to assist the Company.
Alvaro Oquendo testified that he is the nephew of Jose Llanos and that he lives
near Llanos at Abra Estrecha, and that no meeting of employees was held at his
uncle's house on November 20, 1949 He testified that he signed not a union au-
thorization card but a paper for Marrero about 10 or 12 days after the discharges.
The purpose of the paper was to get Marrero's job back.
Juan Cintron Cabrera testified to the latter incident concerning Marrero. He,
also, testified that he signed a paper, not further described, after the men were
discharged, because Marrero told him that the paper "was to get on the job
again."
Fulgencio Cintron Rivera also testified to the incident of the bottle throwing.
He also said that after the discharges he signed a paper, the nature of which he
did not understand, at the request of Marrero, for the purpose of assisting
Marrero to get his job back.
Luis Cintron Cabrera also testified that the dischargees, or one of them,
"asked me for my signature outside of the gate after they were discharged They
asked me to give them my signature, and I innocently gave it to them, thinking
it was for the purpose of their coming back to work."'
The testimony of these witnesses is likewise commented upon hereafter.
Jose Antonio Calero testified that he was summoned from his home on November
23, 1949, to be a watchman replacing Francia. He began his duties as watchman
on that day about 8: 30 a. in., taking up his station at the gate. At that time
Marrero was outside the gate on the highway and Vincenty was not within sight.
In the afternoon Marrero returned to the plant to collect his money. At the
time Marrero left the office the witness saw Vincenty and Marrero at the door
of the office for a moment. This testimony I deem of doubtful value in the light
of all the evidence.
Jesus Eduardo Guzman testified that he is employed as a clerk by the Re-
spondent and was present in the office on the morning that the men were dis-
charged. During the morning he saw and heard a conversation between Tomas
Figueroa and Aranda. In this conversation Figueroa asked Aranda to read
the discharge letter as Figueroa could not read. After Aranda read the letter,
Figueroa asked if he was being discharged for "forming a union ." Aranda said,
7 Transcript , p. 300.
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"No," and "that the letter explained everything." A few questions later this
witness repudiated this testimony saying that he was not sure of the substance
of this conversation. I credit his testimony that in the conversation between
Figueroa and Aranda, the Union was mentioned. On this point, to some extent
the witness corroborated the testimony of Figueroa. I reject the later repudiation
of this testimony by the witness. It was obvious that the witness testified he
was not sure of this conversation, after he decided that this testimony was det-
rimental to the Company. I reject all testimony of the witness thereafter, as
being unreliable.
Hector Rafael Rivera, another clerk, testified that on the day of his dis-
charge Figueroa asked Aranda to read the discharge letter to him, and that
Aranda complied with the request, and that there was no other comment by
either Figueroa or Aranda at that time He stated that in effecting the three
discharges Aranda did not mention the Union and neither did the dischargees.
This testimony is rejected for the reason that the testimony of Figueroa, di-
rectly contrary, has been credited fully.
Gregorio Rodriguez, storekeeper, testified that he had charge of the stores
and stock as well as the records pertaining to each. He explained that at the
close of business each day he took the number of cases of beer on hand, and
that he again checked the number of cases in the morning. On one occasion
Ramirez, a , watchman, called his attention to the fact that a case had been
opened and a few bottles of beer taken. On two or three occasions the witness
himself noticed that a case had been opened and a few bottles removed. He
reported the incidents to the management, but did not indicate that he was sus-
picious of anyone. He testified that he did not know who removed the bottles.
Ezequiel Concepcion, watchman, testified that relations between all the watch-
men were harmonious ; that on several occasions Figueroa complained to the
office about rotation of shifts but that his complaints did not bother the other
watchmen.
Rodriguez and Concepcion appeared to be disinterested witnesses . They tes-
tified with fairness and candor . Their testimony has been credited.
C. Events after the discharges; the election ; the pay raises 8
On November 28, 1949, the Union filed the charge herein. On December 16,
1949, the Union filed a petition for certification of representatives in Case No.
38-RC-146. It was stipulated by all parties at the hearing that in support of
this petition the Union filed signed authorization cards of 24 employees.
Twenty-two of these cards did not bear the date on which they were executed,
but cards bearing the name of Francia and Marrero were dated November 20,
1949. The card of Marrero was witnessed by employee Jose Llanos and an
undated card of Jose Llanos was witnessed by Marrero.
On January 5, 1950, the Company and the Union executed an agreement for
a consent election. Pursuant to this agreement, an election was held on Jan-
uary 13, 1950 Results of the election, according to the tally of ballots, were as
follows :
Approximate number of eligible voters-------------------------- 43
Votes cast for the union-------------------------------------- 1
Votes cast against the union----------------------------------- 38
Valid votes counted--------------------------------------------- 39
Challenged ballots---------------------------------------------- 3
Valid votes, counted plus challenged ballots--------------------- 42
8 There is no substantial dispute as to the facts in this section of this Report.
PUERTO RICO CEREAL EXTRACTS, INC. 1047
On examination by the General Counsel, Vincenty also testified that the pay
of the chauffeurs was increased on January 7, 1950, and that a general wage
increase was granted in April 1950. He explained that at the time the men
were hired in April of 1949 he had promised them an increase in wages at the
end of 1 year's operation and that the general wage increase was the promised
raise.
Concluding Findings
A As to the discharges; company knowledge of union activity
The conflicts inherent in much of the above testimony are resolved in favor
of the dischargees and against the Respondent for many reasons:
(1) As indicated previously, --Marrero, Francia, and especially Figueroa,
impressed the undersigned favorably by their demeanor and bearing on the
witness stand They testified with candor and frankness and appeared to
hold no animosity against either their former fellow workers or the Com-
pany. Marrero frankly admitted his part in the incidents of the thrown bottle
and the spilled paint. Francia admitted his inability to explain his delinquency
as to punching the watchman's clock. This testimony was apparently contrary
to their interests but they did not evade or avoid questions on these subjects,
I find that they were reliable and trustworthy witnesses. Figueroa's testimony,
which has been credited, corroborates Francia and Marrero on important fea-
tures.
(2) The testimony of these three witnesses is corroborated to some extent
by the undisputed evidence.
Apparently the Company sought to prove that the discharges preceded rather
than followed the union activity. The dischargees testified that a very sub-
stantial amount of the union activity preceded their discharges. There can be
no doubt as to the accuracy of their assertion. At the time the Union filed its
petition for certification of representatives it filed signed authorization cards
for 24 employees. The cards of Marrero and Francia bore the date of execution,
November 20, 1949. Marrero's card was witnessed by Jose Llanos, another
employee. These cards constitute undisputed evidence that the cards were
obtained prior to November 20, 1949, and that the work of obtaining signatures
had begun on or before that date Marrero's card proved that Jose Llanos knew
of the union activity. Figueroa testified that his card was signed about 2 weeks
before his discharge. From these facts it is perfectly clear that at least 4
employees were participating in union activity by November 20, 1949. Marrero
and Francia testified that a majority of the 24 cards were obtained before their
discharge. Though 22 cards were undated, there appears to be no doubt that
substantial union activity had occurred prior to the discharge of the men on
November 23, 1949. In this connection I might state that I do not credit the testi-
mony of Juan Cintron Cabrera, Fulgencio Cintron Rivera, Luis Cintron Cabrera,
and Alvaro Oquendo, in which each stated that he signed a paper, after the men
were discharged, in order to help the dischargees to be reinstated. The testi-
mony of these men that they did not understand the nature of the paper they
signed is incredible These witnesses are young men, alert and modern, all have
had some schooling, and they live in the metropolitan area of San Juan, Puerto
Rico, a progressive, modern city, enjoying all the facilities of communication
such as newspapers, motion pictures, and radio. For these bright young men
to testify that they did not understand the nature of the paper they signed,
especially in the atmosphere of union activity here present, is to tax the credulity
of the undersigned Furthermore, these witnesses displayed such an eagerness
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to repudiate their conduct in signing their union authorization cards, and dis-
played such an anxiety to divest themselves of all connection with union activity,
that the undersigned was forced to the reluctant conclusion that then testimony
was false. It is the considered conclusion of the undersigned that these wit-
nesses participated in the union activity as related by the tlnee dischargees,
but when called upon to testify to that participation, in open court, after the
discharge of the three fellow employees. they did not possess the moral stamina
which the truth required. I reject their testimony as not reliable
(3) The testimony of the three dischargees is consistent with all the facts
of the case and presents a pattern of events which is entirely credible
On the other hand, the testimony proffered by the Respondent is either
incredible or unreliable for many reasons. First, although Vincenty's demeanor
and bearing as a witness impressed the nildei signed favorably, his testimony
was incredible. He stated that the Company had just cause for discharging
each man, yet it appears that the Company effected these, discharges in a pe-
culiarly furtive manner, and for reasons which it kept peculiarly secret for a
long time. He claims an adequate and proper reason in each case, yet the dis-
charge letter to each employee was silent as to why he was dischai ged, and
Aranda dismissed the employees with the cryptic phrase that the letter explained
everything According to all the evidence, Marrero worked a period of many
weeks between his infractions of discipline and his ultimate discharge and it
was not until the hearing and Vincenty's testimony that a reason for his dis-
charge was afforded him. On the second failure to punch his clock, Francia was
cautioned about his omission, but in subsequent weeks he was given no warning
or reprimand, and his discharge letter was silent on this subject. Not until
he went to the Regional Office did lie learn that he was fired because of his
failure to punch his clock. Figueroa was allegedly discharged because he did
not get along with the other watchmen and because he was suspected of taking
beer while on duty. Vincenty testified that he never cautioned Figueroa about
his relationship with the other watchmen and considered the subject of stealing
beer "too delicate" to mention to Figueroa Such secrecy and concealment is
usually found in illegal, unlawful, operations; it is rarely found in the conduct
of men who act with clear conscience, aware that their conduct is just.
Second, there is no doubt that Vincenty proceeded in the matter of these dis-
charges with the utmost care and caution. The exchange of letters between
the Department of Labor of Puerto Rico and the Company prove this. Vincenty
used extreme care in these discharges and it is apropos to ask why. He testified
that he was being prudent, trying to save the Company from being embroiled
in lawsuits as a result of the discharges For that reason he consulted the
Labor Department and paid the men severance pay of a month's wages-$62.40.
I find that his extreme caution was for quite another reason. He knew that these
discharges were not ordinary discharges-because these dischargees were all men
who were actively engaged in forming a union among his employees. He testified
that he did not know that the Union was organizing his employees. I find that
hard to believe. This is a small plant of 43 employees. Vincenty lives on the
premises and frequents the plant both day and night. Roman, the foreman of
his bottling department, is a former labor leader. I cannot believe that these
men did not soon learn of Marrero's and Francia's organizational activities,
when they began talking with the other employees in this small plant.' The
knowledge of union activities possessed by Roman is dealt with in the next
section of this Report.
8 Jackson Daily News, 90 NLRB 565.
PUERTO RICO CEREAL EXTRACTS, INC. 1049
Third, the reasons advanced for the discharges appear to be so insubstantial
that they , too, are incredible . Marrero offended against the discipline of the
plant on two occasions , but it appears that these offenses were condoned, or at
least not considered serious breaches of discipline , until November 23, 1949,
when he was discharged without warning or explanation . If his conduct was
a serious breach of discipline it would seem that the protection of the enterprise
would have warranted his dismissal at the time his offenses occurred, not 2
months later. Francia failed to punch his clock occasionally . However, the
safety of the plant was entrusted to Francia for several weeks while his lapses
from duty continued and then, on November 23, 1949, he , too, was fired without
explanation or warning . Figueroa was discharged because he did not get along
with the other watchmen and was suspected of taking beer on his shift. Figueroa
said his relations with other watchmen were friendly , and Ezequiel Concepcion,
another watchman , testified credibly that the relations of all the watchmen
were "harmonious."
Gregoria Rodriguez , the storekeeper , testified that on several nights bottles
of beer were missing but that he did not know who took them and that , although
he reported the loss to management , any suspicions he may have had he kept
to himself . This, certainly , is an insubstantial reason for discharging an
employee.
Fourth, in discharging all three men the Company paid each a full month's
salary-$62 .40-as separation pay, as required by the laws of Puerto Rico in
cases where discharge is not for just cause . Vincenty explained that this pay-
'ment was dictated by prudence . However , I deem the payment evidence that
the Company knew that it was discharging the men without just cause. For
these reasons I find the testimony of Vincenty unacceptable.
There is no doubt that Marrero threw the bottle of beer and spilled the paint.
When he committed those acts if the Company did not care to accept his ex-
planation his conduct might have been a reason for his prompt discharge. There
is no doubt that Francia failed to punch his clock on some occasions . But these
reasons were not the real reasons for the discharge of the men. Nor was Figueroa
discharged for the reasons given by the Company. From all the credible evidence
I find that the real reason for the discharges was that the men had joined the
Union and were engaging in union activities with other employees for their
mutual aid and protection. The reasons given by the Company are pretexts
used by the Company to cloak its illegal conduct in discharging Marrero, Francia,
and Figueroa. I find that the discharges were in violation of the rights guar-
anteed to employees in Section 7 of the Act, and in violation of Section 8 (a) (1)
and (3 ) of the Act10
B. As to surveillance and company knowledge of union activity
Marrero testified that on November 19, 1949, Roman, at his home, twitted
Marrero about being a union leader, and that on November 20, Roman came to
the vicinity of the proposed meeting at Abra Estrecha, and laughingly said,
"Well, there's practically nobody here. I was over at Naranjito and was
watching those that might come here." Roman denied both, that he had the
conversation with Marrero at his home or came to the meeting place. However,
Roman testified that at one time he was president of the Union , and he did
admit that on a Sunday he sought out Marrero to return to Marrero his hat.
At his first appearance on the witness stand Roman indicated the hat incident
10 In making this finding I am also taking into consideration the matters discussed,
and the findings contained in the next section of this Report entitled "B. As to sur-
veillance and company knowledge of union activity."
1050 DECISIONS OF NATIONAL -LABOR , RELATIONS- BOARD
took place before the discharge of the men;. at the next question that he was
not sure whether it occurred before or after the discharges ; and, finally, when
called by the Company 2 days later, that he was sure that it occurred after the
discharges. .
Francia, Marrero , and Figueroa all testified that Roman was at the meeting
place on November 20, 1949. At the place of meeting on that date, too, were
the three dischargees, Pedro Santos, the union president at the Carioca plant,
and one or two employees Three days later Francia and Marrero , the union
leaders, and Figueroa , one of the first members , were discharged . I cannot
believe that the discharges were a coincidence . To me, the antiunion purpose
and the antiunion result of Roman's activity is patent.
Roman is a man of middle age-intelligent and experienced . As a former
union president and a present foreman he has had more than usual experience
with unions and union activity . He knew of the union activity in the plant when
it first occurred , and he confirmed his knowledge by personal surveillance of
the union meeting.
I find, in accordance with the testimony of Marrero , that Roman did speak
to Marrero about becoming a union leader and , in accordance with the testimony
of all three dischargees , that Roman did go to the meeting place at Abra Estrecha
on November 20, 1949, using the return of Marrero's hat as a pretense to cover
his illegal purpose to discourage membership in the Union by his presence at the
meeting place , to find out by surveillance who were members of the Union, and
to learn how many of the employees had joined the Union . Roman 's testimony
is hereby rejected as being unreliable and incredible , in the light of all the
evidence.
0. As to the increase in pay
It is undisputed that on January 5, 1950, the Company and the Union executed
an agreement for a consent election . Vincenty testified that on January 7, 1950,
an increase in pay was granted to the chauffeurs and that in April 1950, a general
pay increase was granted to all employees . Marrero testified that among the first
men that he signed up for the Union were the chauffeurs, Dolores Calderon and
Allejandro Rodriguez. The increase of pay granted to the chauffeurs 2 days
after the execution of an agreement for an election and 6 days before the elect
tion which was held on January 13 , 1950, is certainly a violation of Section 8 (a)
(1) of the Act, in view of the circumstances then prevailing.
However, there is no testimony that the general increase in pay effective in
April, 3 months after the election, was inspired by an ulterior motive. The
explanation of Vincenty that this raise was promised to the employees when they
began work is accepted in the absence of evidence to the contrary.
D. Respondent 's motions to dismiss
The Respondent made various motions, to dismiss the complaint generally,
and certain allegations of the complaint specifically , on the ground that there
was insufficient evidence to sustain the complaint or the allegations. These
motions are denied, except as to paragraphs marked ( a), (b), and ( d), of para-
graph V of the complaint . The allegations contained in those specific sub-
paragraphs of paragraph V are hereby dismissed , and to that extent the motion
is granted.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above , occurring in
connection with the operations of the Respondent described in Section I, above,
. PUERTO RICO CENTRAL EXTRACTS, INC. 1051
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes, burdening and
obstructing commerce.
V. THE REMEDY
Since it has been found that the Respondent has engaged in certain unfair
labor practices it will be recommended that it take certain affirmative action
designed to effectuate the policies of the Act.
Having found that the Respondent discriminated with respect to the hire and
tenure of employment of Pablo Marrero Santos, Manuel Colon Francia, and
Tomas Figueroa, by discharging them because of their union and concerted
activities, it will therefore be recommended that the Respondent offer to Pablo
Marrero Santos, Manuel Colon Francia, and Tomas Figueroa immediate and full
reinstatement to their former or substantially equivalent positions," without
prejudice to their seniority and other rights and privileges, and make them whole
for any loss of pay they may have suffered by reason of the Respondent's dis-
crimination against them consistent with the Board's new policy in the method
of computing back pay.12 It will be recommended that the loss of pay be com-
puted on the basis of each separate calendar quarter, or portion thereof, during
the period from the discriminatory action to the date of a proper offer of rein-
statement. The quarterly periods, hereinafter called "quarters," shall begin
with the first day of January, April, July, and October. Loss of pay shall be
determined by deducting from a sum equal to that which each would normally
have earned for each quarter, or portion thereof, their net earnings," if any, in
other employment during that period Earnings in one particular quarter shall
have no effect upon the back-pay liability for any other quarter. It will also
be recommended that the Respondent make available to the Board, upon request,
payroll and other records to facilitate the checking of the back pay due, -
In the opinion of the undersigned the Respondent's conduct discloses a fixed
purpose to defeat self-organization and its objectives. Because of the Respond-
ent's unlawful conduct and its underlying purpose, the undersigned is convinced
that the unfair labor practices found are persuasively related to the other unfair
labor practices proscribed by the Act and that the danger of their commission
in the future is to be anticipated from the course of the Respondent's conduct
in the past. The preventive purpose of the Act will be thwarted unless the
recommendations are coextensive with the threat. In order, therefore, to make
effective the interdependent guarantees of Section 7, to prevent a recurrence of
unfair labor practices, and to minimize strife which burdens and obstructs com-
merce, and thus to effectuate the policies of the Act, it will be recommended that
the Respondent cease and desist from infringing in any manner upon the rights
guaranteed by Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, the undersigned makes the following:
11 The Chase National Bank of the City of New York, San Juan, Puerto R;co, Branch,
65 NLRB 827.
12 P. W. Woolworth Company, 90 NLRB 289; Pratt, Reed & Co., Inc., 90 NLRB 1499.
" By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working
elsewhere than for Respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere. See Crossett
Lumber Company, 8 NLRB 440 Monies received for work performed upon Federal,
State, county , municipal , or other work-relief projects shall be considered as earnings.
See Republic Steel Corporation V. N. L. R. B., 311 U. S. 7.
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Confederacion General de Trabajadores de Puerto Rico (Autentica), is a
labor organization within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Pablo
Marrero Santos, Manuel Colon Francia, and Tomas Figueroa, thereby discour-
aging membership in a labor organization, Respondent has engaged in unfair
labor practices within the meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
5. The Respondent has not engaged in the unfair labor practices alleged in
paragraph V, subparagraphs (a), (b), and (d) of the complaint.
[Recommended Order omitted from publication in this volume.]
NEPTUNE BROADCASTING COMPANY wind AMERICAN FEDERATION OF
RADIO ARTISTS , AFFILIATED WITH THE ASSOCIATED ACTORS AND
ARTISTES OF AMERICA , A. F. L., PETITIONER. Case No. 4-RC-1020.
June 4, 1951
Decision and Direction of Elections
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Harold Kowal, hear-
ing officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Herzog and Members Murdock and Styles].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The appropriate unit :
The Petitioner seeks a unit of full- and part-time staff announcers,
specialists, salesmen, and office clerical employees, excluding the man-
ager, janitors, technicians, guards, supervisors, and professional em-
ployees, or in the alternative, if an over-all unit is found inappropriate,
94 NLRB No. 136.