Puerto Rico Food Products Corp.

National Labor Relations Board - Board Decisions

Jun 8, 1979

242 N.L.R.B. 899 (N.L.R.B. 1979)

PUERTO RICO FOOD PRODUCTS CORP.. ETC.
Puerto Rico Food Products Corp., Tradewinds Food,
Inc. and Island Can Corp. and Sindicato General de
Trabajadores, Local 255, Amalgamated Meat Cut-
ters and Butcher Workmen of North America,
AFL-CIO. Cases 24 CA 3864 and 24 RC 5949
June 8, 1979
DECISION. ORDER, AND DIRECTION
BY MEMBFRS JENKINS, MURPHY, AND TRLESDAI.I
On May 15, 1978, Administrative Law Judge John
C. Miller issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel filed excep-
tions and a supporting brief and Respondent filed ex-
ceptions, a supporting brief, and a reply brief:
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions' and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge, as
modified below, and to adopt his recommended Or-
der as also modified herein.
The General Counsel excepts to the Administrative
Law Judge's dismissal of the complaint's allegation
that Respondent violated Section 8(a)(1) of the Act
by discharging five employees for engaging in a work
stoppage to secure an explanation for the termination
of their immediate supervisor, Leocadio Perez. The
General Counsel contends that because the identity
of Supervisor Perez had a direct impact on the em-
ployees' legitimate job interests, the employees' brief
work stoppage in protest thereof was a protected con-
certed activity within the meaning of Section 7 of the
Act, and that their resultant discharge was, therefore,
unlawful. We agree with the General Counsel.
Perez was hired as a production supervisor in Re-
spondent's third floor labeling department on Janu-
ary 5, 1977.) According to Perez' uncontradicted testi-
mony. during the interview at which he was initially
oriented to certain of his supervisory responsibilities,
Perez was informed of some of the major problems in
his department. Specifically, Personnel Manager An-
In ne absence of exceptions, we adopt pro ri,rma, the Administrative
Law Judge's recommendation to overrule the challenges to the ballots cast
by Vidal Acosta and Edwin Maury in the election in Case 24 RC 5949
2 Respondent has excepted to certain credibility findings made by the Ad-
ministralive I.aw Jludge It is the Board's established polic) notl to oserrule
an administrative law judge's resolutions with respect to credihilil unless
the clear preponderance of al o Ithe releant es idence cons inces us Ihat the
resolutions are incorrect. Siandauri Dn Wall PrldiiI. in, l91 NRB 544
(1950), enfd 188 F.2d 362 3d 'ir. 1951). We have careruls examind the
record and find no basis for reversing his findings.
11 All events herein are in 1977 unless otheruise indical.ed
tonio Carrasquillo and Production Manager Antonio
Guerra Valentin (herein called Guerra) told Perez of
a recent strike at Respondent's facility and that cer-
tain of the employees active in the strike would be
under his supervision and should be watched to a
greater degree than the other employees. Perez was
particularly instructed to report to Guerra "anything
out of the ordinary from those people."
From the outset of his employment until his termi-
nation, Perez sought. and apparently obtained, the
confidence of the workers in his department. Perez
made a conscious effort to have meals with these em-
ployees and to take his breaks at the same time they
did. He advised them on how to perform their work.
Perez also counseled them with respect to future
strike movements and distribution of propaganda, ac-
tivities generally protected under the Act, and warned
them to "never talk unnecessarily" about such mat-
ters. Perez, acting in the interest of the employees.
offered this advise based on his knowledge that Pro-
duction Manager Guerra, Personnel Manager Carra-
squillo, and others from management held strong
views in opposition to such protected concerted ac-
tivities.
On the morning of March 3, Perez. still in his pro-
bationary period, was terminated, allegedly for unsat-
isfactory performance. Before leaving Respondent's
facility, Perez returned to the third floor to inform the
employees in his department personally of his termi-
nation and to say goodbye to all of them. The label-
ing department employees became upset by the news
of Perez' termination and production on line 303
stopped. Thereafter, the employees on line 303, and
principally Gregoria Delgado, the line's leadperson
and controller of the switch to start and stop the line,
informed Supervisor Suigencio Recio that thes would
not work until they were given an explanation for
Perez' discharge. When reports of the stoppage and
the employees' demand reached Respondent's pres-
ident, Frank Unanue, he summoned Delgado to his
office. According to Unanue, Delgado demanded the
employees be told why Perez had been discharged,
adding that "he was a good man.... We can't go to
work until you explain what the problem is." Unanue
advised Delgado that the discharge was an adminis-
trative matter, that production must he resumed, and
that he would give an explanation after work to a
small group of employees if' they so desired. When
Delgado insisted on an immediate explanation, she
was discharged. Thereafter, Unanue, joined enroute
by Guerra and Carrasquillo, proceeded to the third
floor where he requested that the employees, who
were gathered around the labeling machine on line
303, return to work. The employees. individually and
collectively. aain demanded an explanation for Pe-
rez' discharge before theN would return to work. Once
242 NLRB No. 126
899
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
more Unanue refused to give one, stating that it was
an administrative matter and that production must be
resumed. Some of the employees thereupon returned
to work, but Zoraida Martinez, Carmen Ortiz, Jose
Colon-Vargas, and Wilfredo Maya persisted in their
demand for an explanation, at which point Unanue
advised them, if they did not want to work, to punch
out and leave the plant and permit those who wanted
to work to do so. The four employees refused to
punch out and before leaving the third floor and the
plant unsuccessfully attempted to get other employ-
ees to walk out.
Whether concerted actions by employees to protest
an employer's selection or termination of a supervisor
fall within the purview of Section 7 of' the Act de-
pends on the facts of each case. In this regard the
Board has consistently held that where ficts establish
that the identity and capability of the supervisor in-
volved has a direct impact on the employees' own job
interests they are legitimately concerned with his
identity and thereby have a protected right to protest
his termination.4
On the facts herein we find sufficient basis to con-
clude, contrary to the Administrative Law Judge. that
the termination of Supervisor Perez had a direct im-
pact on the employees'job interests. A fair reading of
the Administrative Law Judge's Decision on this
point suggests that he viewed the protected character
of the work stoppage as dependent on whether Super-
visor Perez was discharged for reasons which we find
violative of Section 8(a)( ) of the Act. Thus, absent
record evidence to sustain a finding that Perez was
terminated because he refused to engage in unfair la-
bor practices on behalf of Respondent or for similar
unlawful reasons, the Administrative Law Judge ap-
parently reasoned that Perez, in his role as a supervi-
sor, could not have such direct impact on employees'
working conditions as to render their work stoppage
over his discharge a protected activity.
We disagree. In the first place, the lawfulness of'
Perez' discharge was not at issue in this proceeding: it
is a matter neither raised by the allegations of the
complaint nor fully litigated at the hearing. More im-
portantly., neither precedent nor logic dictates that
the lawfulness of the supervisor's termination is the
touchstones for determining whether or not his iden-
tity and capability are matters of such moment to
employees that their protest of' his termination is pro-
tecter' activity under the Act. Thus, in the instant case
and as detailed above, from the outset of his employ-
ment, Perez sought and, despite his brief tenure, was
Dohhbbs Houses. Inc.. 135 NL.RB 885. 888 (1962). enforcement denied 325
F.2d 531 (5th Cir. 1963): see also Kelsw Marine. Inc., 199 NL.RB 7 (19721.
Plastilite Corporation. 153 NL RB 180 (1965). modified on other grounds 375
F.2d 343 (8th Cir, 1967); (CIever-Brookvs kanul~ficturing (Corporaril,, 120
NL.RB 1135 (1958), enfircement denied 264 F.2d 637 (7th (ir 1959): Ac'
Handle Corporation, 100 NLRB 1279 (1952).
able to obtain the confidence and loyalty of those un-
der his immediate supervision.
To this end, in addition to performing the more
customary supervisory responsibilities, vis-a-vis the
employees in the department, Perez made an extra
effort to meet with his employees, sharing his per-
sonal time at breaks and meals. And the record shows
that the discussions at these meetings were not limited
to the manner of performing work. Rather, despite
Respondent's instruction that Perez watch certain of
his employees because they had been active in a prior
strike and that he report any nascent, similar activity
to higher management, Perez counseled the employ-
ees on what they should and should not do regarding
future strikes and distribution otf propaganda. He par-
ticularly advised them not to talk unnecessarily about
such matters. It is clear, under such circumstances,
that the employees some of whom were apparently
under a cloud because of their prior concerted ac-
tivity and desire to unionize' would have a genuine
interest in the continued employment of a supervisor
who exhibited concern about their wellare as employ-
ees and counseled them on matters having a direct
bearing on their employment relationship.
Indeed, the employees' spontaneous reaction to the
news of Perez' discharge bears this out. Many em-
ployees directly supervised by Perez abruptly and un-
hesitatingly stopped work in order to secure an imme-
diate explanation for his discharge. Martinez. Ortiz.
Colon-Vargas, and Maya, full) aware of Delgado's
discharge for her effort to get an answer regarding
Perez' termination. undauntingly pressed nanue for
the reason underlying the discharge of their supervi-
sor and conditioned their return to work upon receipt
of said explanation. nder these circumstances, there
can be little doubt that the employees held the rea-
sonable belief that the loss of Perez as their supervi-
sor, a man in whom they obviously placed much con-
fidence, would adversel' alter their work environment
and, as such, have a direct impact, both real and per-
ceived. on their job interests.
To hold that the supervisor's discharge did not
have such an impact here, when it appears that these
unorganized employees genuinely and reasonably be-
lieved that it had, would place an undue premium on
their ability to assess accurately complex legal issues
at a time when they are acting spontaneously. We will
not engage in such "Monday-morning quarterback-
ing" where the ficts, as here. so clearly demonstrate
how the loss of a first-line supervisor could impair the
employees' work environment. In view of the otrego-
ing, we find that the employees' conduct falls within
the protection of the Act.
In this regard Perez testlied that Respiondenl sarined hint hat a. numbher
of the mphs ee working tinder his supervision were Ihte nes n tll,or o1t the
L nion.
900
PUERTO RICO FOOD PRODUCTS CORP., ETC.
Our conclusion is consistent with various circuit
court decisions which have agreed with the Board in
finding that employees may have a legitimate interest
in protesting the discharge of a supervisor. 6 Thus, for
example, in N.L.R.B. v. Guernsey-Muskingunm Corpo-
ration, Inc., 285 F.2d 8, 12 (6th Cir. 1960), where em-
ployees complained to management about the ap-
pointment of a new foreman, the court stated:
We think too that the grievance of which the
men complained was a proper subject for "con-
certed action" with management. In N.L.R.B. v.
Phoenix Mutual Life Ins. Co., 167 F.2d 983 ... it
was held to be a proper subject for concert of
action where insurance salesman protested the
employment of an office cashier. The court said.
167 F.2d at page 988:
A proper constuction is that the employees
shall have the right to engage in concerted ac-
tivities for their mutual aid or protection even
though no union activity be involved or collec-
tive bargaining be comtemplated. Here, Davis
and Johnson and other salesmen were prop-
erly concerned with the identity and capability
of the new cashier. Conceding they had no au-
thority to appoint a new cashier or even rec-
ommend anyone for the appointment, they
had a legitimate interest in acting concertedly
in making known their views to management
without being discharged for that interest.
This [the situation in Phoenix Mutual, supra] is
a close parallel to the case at bar.
Relying on Phoenix Mutual, supra, the court con-
cluded that the protesting employee was discharged
because of his activity in connection with the ap-
pointment of his foreman and that such a discharge
was in violation of the Act. However, some of these
decisions have nonetheless found such protests unpro-
tected where the method used by the employees to
express their protest, e.g., work stoppages as the one
here, was thought to be intemperate or unreasonable
in light of the ends sought to be achieved.7 In our
view, however, the application of Section 7 does not
depend on the manner or method by which employ-
ees choose to press their dispute, but rather on the
' N.L.R.B. v. Phoenix Mutual Life Ins. Co., 167 F.2d 983 (7th Cir. 1948):
N.L.R.. v. Guernsey.Muskingum Eleciricat Corporation, Inc., 285 F.2d 8
(6th Cir. 1960); Dobbs Houses, Inc. v. N.LR.B., 325 F.2d 531 (5th Cir 1963):
American Art Clay Company v. N.LR.B., 328 F.2d 88 (7th Cir. 1964). But see
N.L.R.B. and Ford Radio d Mica Corporation, 258 F.2d 457 (2d Cir. 1958).
See, e.g., Dobbs Houses, Inc. v. N.LR.B., 325 F.2d 531 (5th Cir. 1963);
Cleaver-Brooks Manufacturing Corporation v. ,.L.R.B., 264 F.2d 637 (7th
Cir. 1959); American Art Clay Co. v. N.L. R.B., supra, Henning and Cheadle,
Inc. v. N.L.R.B., 522 F.2d 1050 (7th Cir. 1975). However. these circuits have
upheld milder protests over supervisory discharges which have taken the
form of discussions or correspondence with the employer, See. e.g.. L. R B
v. Phoenix Mutual Life Ins. Co., 167 F.2d 983 (7th Cir. 1948).
matter they are protesting.8 We must, therefore, re-
spectfully disagree with any rule or holding in which
the protected nature of the concerted activity would
depend on the reasonableness of the method of pro-
test in relation to the subject matter in dispute.9 Thus,
in the instant case, whether the cessation of work was
a wise, necessary, justifiable, or reasonable reaction to
Respondent's discharge of Perez is not germane to
our inquiry. What is relevant is that the alleged dis-
criminatees, legitimately concerned about the impact
of Perez' termination on their own working condi-
tions, decided that a work stoppage was appropriate
for their mutual aid and protection. The employees
were thus engaged in a brief economic strike for
which they could not lawfully be discharged. Accord-
ingly, we find that Respondent, by discharging Delga-
do, Martinez., Ortiz, Colon-Vargas, and Maya for en-
gaging in a protected concerted work stoppage, while
seeking an explanation for the termination of their
immediate supervisor, violated Section 8(a)(1) of the
Act.
Finally, our dissenting colleague's opinion warrants
only brief comment. We are satisfied that our deci-
sion herein properly considers and applies Board
precedent to the established record evidence. The dis-
sent sets up and knocks down a variety of strawmen.
Thus, contrary to the dissenter's assertion, we do not
hold that employees enjoy a protected right to strike
'any time" there is a supervisory change that is not to
liking; we do not announce, or even hint, at a rule
that "protests over the discharge of any supervisor are
per se protected": and, finally, we do not endorse any
"presumption" that supervisory status standing alone
is the litmus test impact on employee working condi-
tions. In passing. therefore, we commend to our dis-
senting colleague a closer reading of the decision.
REMEDY
We have found that Respondent unlawfully termi-
nated Delgado, Martinez. Ortiz, Colon-Vargas, and
Maya while they were on strike. Recently, the Board
in Abilities and Goodwill, Inc.," decided to treat un-
lawfully discharged strikers in the same manner as
other discriminatorily discharged employees for the
See ,N.L.R.B. v. Washington Aluminum CompWaqo, 370 U.S. 9, 16 (1962):
N.L.R.. v. Mackay Radio d Telephone Co. 304 U.S. 333 (1938): HIening
and Cheadle, Inc.. 212 NLRB 776, 777 (1974),
9 See, e.g., Plastilite Corporation, 153 N LRB 180 (1965).
1o Respondent was, of course, free to replace the protesters qua economic
strikers. N.L.R.B. v. Mackay Radio & Telephone Co, 304 U.S. 333 (1938).
Conceding hat Respondent has the prerogative to hire and fire its supervi-
sors, this does not diminish the employees' "legitimate interest in acting
concertedly in making known their views to management without being dis-
charged for that interest." N.L.R.B. v. Guernsev-Muskingum Electrical Cor-
poration, Inc., supra at 13. quoting from N. LR. B. v. Phoenix Mutual Life Ins
Co., supra a, 988.
1 241 NLRB No. 5 (1979)
901
DIE('ISIONS OF NATIONAL LABOR RELATIONS BOARD
purpose of computing backpay, by dispensing with
the requirement that such strikers unconditionally re-
quest reinstatement in order to start the employer's
backpay obligation. The Board thus found that such
strikers are entitled to receive backpay from the date
of their unlawful discharge until they have been of-
fered reinstatement. The Board further found that, if
the discharged striker responds to the employer's of-
fer of reinstatement by continuing to withhold his or
her services, the employer's backpay obligation is
tolled and the employee resumes the status of a
striker. 12
On the basis of the foregoing we shall order Re-
spondent to offer the above-named individuals rein-
statement to their former jobs or, if such jobs are not
available, to substantially equivalent jobs, without
prejudice to their seniority or other rights and privi-
leges previously enjoyed, and make them whole for
any loss of earnings they may have suffered by reason
of the unlawful discrimination against them by pay-
ing them a sum of money equal to the amount they
normally would have earned from the date of their
unlawful discharge until the date Respondent offers
them reinstatement, computed in the manner set forth
by the Board in F. W. Woolworth Company, 90 NLRB
289 (1950), together with interest thereon as com-
puted in the manner prescribed in Florida Steel Cor-
poration, 231 NLRB 651 (1977).13 Respondent may of
course attempt to prove, in the compliance stage of
this proceeding, that the above-named individuals in-
curred a willful loss of earnings by continued partici-
pation in the strike after their date of discharge.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order that recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent,
Puerto Rico Food Products Corp., Tradewinds Food,
Inc. and Island Can Corp., Bayamon, Puerto Rico, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph I(c):
"(c, Discharging our employees because they en-
gaged in a concerted work stoppage for their mutual
1 As such, the employee will be required to request reinstatement upon
the conclusion, or the striker's abandonment, of the strike. In addition, in the
absence of an offer of' reinstatement, the employer remains free to avoid or
reduce its backpay obligation by establishing that the employee would nt
have accepted the offer if made, or by any other evidence showing the incur-
rence of a willful loss of' earnings
1 See, generally. Ii. Plumbing I/eating (o., 138 NRB 716 1962).
aid or protection with respect to wages, hours, or
other terms and conditions of employment.
"(d) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
their rights to selt:-organization, to form, join, or assist
Sindicato General de Trabajadores, Local 255, Amal-
gamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO, or any other labor or-
ganization, or to engage in concerted activities for the
purpose of collective bargaining or other mutual aid
or protection as guaranteed in Section 7 of the Act, or
to refrain from any or all such activities."
2. Insert the following as paragraph 2(a) and re-
letter the subsequent paragraphs accordingly:
"(a) Offer striking employees Gregoria Delgado,
Zoraida Martinez, Carmen Ortiz, Jose Colon-Vargas,
and Wilfredo Maya immediate and full reinstatement
to their former jobs or, if those jobs no longer exist, to
substantially equivalent jobs, without prejudice to
their seniority or other rights and privileges previ-
ously enjoyed, and make them whole for any loss of
earnings they may have suffered by reason of the un-
lawful discrimination against them by paying them a
sum of money equal to the amount they normally
would have earned from the date they were dis-
charged to the date that Respondent offers them rein-
statement, with interest as set forth in the section of
the Board's Decision entitled 'Remedy'."
3. Substitute the attached notice for that of the
Administrative Law Judge.
Ii IS FURTHER ORDE REI) that Case 24 RC 5949 be,
and it hereby is, remanded to the Regional Director
for Region 24 to take the action provided below.
DIRECTION
It is hereby directed that, as part of the investiga-
tion to ascertain a representative for the purpose of
collective bargaining with Respondent Employer, the
Regional Director for Region 24 shall, pursuant to
the Board's Rules and Regulations, Series 8. as
amended, within 10 days from the date of this Deci-
sion, Order, and Direction, open and count the bal-
lots cast by Gregoria Delgado. Zoraida Martinez,
Carmen Ortiz, Jose Colon-Vargas, Margarita Pagan,
Vidal Acosta, and Edwin Maury, and thereafter
cause to be served on the parties a revised tally of
ballots including thereon the count of the above-men-
tioned ballots. Should said tally of ballots indicate
that the Petitioner was designated by a majority, the
Regional Director shall issue a Certification of Repre-
sentative. Should the revised tally of ballots fail to
disclose that the Petitioner has been designated by a
majority, the election conducted on June 10. 1977,
shall be set aside and the Regional Director shall con-
duct a new election at such time as he deems the
902
PUERTO RICO FOOD PRODUCTS ('ORP.. ETC.
circumstances permit a free choice on the issue of
representation. 14
MEMBER MURPHY, concurring in part and dissenting
in part:
My colleagues conclude that employees have a pro-
tected right to strike any time an employer makes a
supervisory change which does not suit them. Thus,
they find here that employees were engaged in a pro-
tected work stoppage when they struck to protest the
removal of a recently hired probationary supervisor.
Perez. In so holding, my colleagues have established a
rule that employee protests over the discharge of amn
supervisor are per se protected. 5 Such a finding once
again flies in the face of existing Board law and repre-
sents an unreasonable shift in policy which I cannot
endorse. In agreement with the Administrative Law
Judge, I find such conduct unprotected. 6
The Board has traditionally upheld the right of
management to select supervisory personnel while
limiting the circumstances in which employee work
stoppages to influence supervisory selection are pro-
tected. The Board has, in fact, expressl' ruled that
"employees may [not] act concertedly to protest the
appointment or termination of even supervisor." 7
(Emphasis supplied.) In order to fall within the pro-
tection of Section 7 of the Act, a concerted employee
protest over the discharge of a supervisor must in-
volve conditions of employment and a labor dispute.
More specifically, to find an activity protected, the
facts in each case must establish that the supervisor's
identity and capability have a direct impact on the
employees' legitimate job interests.'"
My colleagues, claiming to apply the established
test, find that the employees' refusal to return to work
until Respondent justified Perez' termination was a
protected concerted activity. They reach this result,
however, by stretching the most inconsequential mi-
nutia regarding Perez' dealings with his subordinates
" The Administrative Law Judge found that certain alleged 8(aKl1) con-
duct found unlawful by him parallels the objections in Case 24 RC 5949.
However, the unlawful threat of reprisal made by Respondent's vice-pres-
ident, Felipe Bentiz occurred on the day following the election and could
not, therefore, have affected the employees' free choice in the election We
find, hosesver that Respondent's other unlawful conduct occurring in the
critical preelection period is sufficient to warrant setting aside the election
" Notwithstanding my colleagues' disavowal of these effects of their decl-
sion, no other impact is reasonabls deducible from a careful reading of the
majority pini on herein.
I agree with m) colleagues' adoption of the Administrative La Judge's
finding at Respondent violated Sec 8(a)( I bh variously threatening em-
plo)ees and creating the mpression of surv:illance I also agree with their
adoption of the Administrative Law Judge's finding that the challenges to
the ballots of Margarita Pagan, Vidal Acosta. and Edwin Maury should he
overruled and the challenge to Emilia Garcia Estella's ballot should he sus-
tained
1 Plastilite C(rporation. 153 NlRB 180. 182 1965)1. enfd. In pertinent part
375 F.2d 243 (8th Cir. 1967).
'' E.g. Kelso Marine. Inc.. 199 NLRB 7, 13 (1972). Pa.stilite ('rporatirn,
supra at 182: Dhs House. In , 135 NLRB 888, ( 19621. enforcement denied
325 F.2d 531 (5th (Or. 1963)
into evidence that he directly impacted on their legiti-
mate job interests. Further, faced with a dearth of
evidence that Perez' impact on the job interest of' the
protestors differed from that of any other superisor.
they find that "the employees' spontaneous reaction
to the news of Perez' discharge bears ... out" the fact
that Perez had a "direct impact, both real and per-
ceived. on their job interests." N131 colleagues thus
glean from the work stoppage itself the finding that
Perez had a sufficient impact on the protesting em-
ployees' job interests to render their conduct pro-
tected. Their rationale is fallacious for it runs some-
thing like this: Some strikers to protest a supervisor's
discharge are protected because there is direct impact
by the supervisor on employee job interest: here the
strike was to protest a supervisor's discharge: there-
fore the supervisor had a direct impact on the em-
ployees' job interests. This reasoning is circular, for.
as discussed above, the protected character of the
strike depends on the resolution of the question
whether the supervisor had a direct impact on em-
ployee job interests. By arguing that the strike itself is
proof that the supervisor has a direct impact on em-
ployee job interests, my colleagues assume the answer
to the question they must resolve.
Rather than fictionalizing the significance of cer-
tain facts and relying on such obvious bootstrapping
to find the requisite nexus between Perez and the em-
ployees' job interests (thereby furthering the guise of
adhering to the Board's traditional test in such mat-
ters), the majority might better have forthrightly
stated that, henceforth. the concerted protest over the
appointment or termination of a supervisor will auto-
maticaly fall within the protection of Section 7 of the
Act. For, a brief review of the record makes it appar-
ent that the majority has, in effect. reached that re-
sult.
Perez was hired as a labeling department supervi-
sor' 9 on JanuarN 5, 1977, and only 2 months later
(while still on probation) was discharged for failing to
satisfactorily perform his supervisory responsibilities.
During an orientation interview with Personnel Man-
ager Antonio Carrasquillo and Production Manager
Antonio Guerra Valentin, Perez was informed that
there recently had been a strike at Respondent's facil-
ity, that he should watch certain employees under his
supervision who had been active in the strike. and
that "anything out of the ordinary from those people
had to be told immediately to Mr. Giuerra." Perez
testified that he thereafter told the employees in his
department that they "should never talk unnecessar-
il . . . [w]ith respect to another strike movement or
distribution of propaganda which was not approved
1 6While it appears that Pere is a first-h I ne spers lsir. the record des not
establish the number at emploees under his inimmedilae iper, iton
9tl3
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by Mr. Guerra nor by Carrasquillo or anyone from
management." Also, according to Perez, during his
brief tenure as supervisor, he took breaks and meals
with the employees and instructed them on how to
perform their work. Perez indicated that by the above
conduct he hoped to gain the confidence of those he
supervised. Employee and protestor Gregoria Delga-
do characterized Perez as "a good man." but none of
the other protestors commented on his attributes as a
supervisor or cited any conduct by Perez which would
evince their confidence in him as a supervisor.
These facts are insufficient to establish the requisite
nexus between Perez and the protesting employees'
job interest. Thus, by instructing employees on how
to do their work, Perez was performing an ordinary
supervisory function. There is no evidence that he
was particularly skilled at instructing employees or
that he did so with unusual frequency.2 0 In fact, aside
from Delgado's statement that Perez was a good man,
there is nothing to indicate that he was viewed by any
of the protestors as uniquely qualified to supervise,
either in terms of his job skills or the manner in which
he treated them as individuals.2 Nor is there any-
thing in the record to suggest that, by lunching with
employees, Perez distinguished himself from other su-
pervisors or became aligned with the legitimate job
interests of the protestors.2 2 Additionally. there is no
evidence that Perez was either aware of or shared in
employee grievances regarding working conditions or
that he at any time aided employees in bringing such
grievances to the attention of management.2 3 Perez
did testify to warning his subordinates that manage-
ment disapproved of another strike movement or dis-
tribution of propaganda. There is no indication, how-
ever, just how many employees Perez so warned and
the total absence of testimony to such conversations
by even one dischargee weighs heavily against my
colleagues' finding that Perez' warnings constituted
the primary basis for the employees' concern with his
identity. In sum, the record fails to indicate that Perez
had any more impact on the protesting employees'
legitimate job interests or the work they performed
than did any other supervisor.
My colleagues' finding that the protestors' conduct
was nonetheless protected has far-reaching implica-
tions. It establishes a presumption that, by virtue of
supervisory status alone, an individual sufficiently im-
20 Th. record is likewise devoid of evidence that Perez' subordinates were
dependent on his performance to fulfill their individual production quotas, a
factor also indicative of a supervisor's impact on the protestors in the per-
formance of their jobs. E.g., Okla-inn, d/h/a Holiday Inn of Henretoa, 198
NLRB 410, 413 (1972); Plasrilte Corporation, supra.
21 Compare Cleaver Brooks MJg. Company, 120 NL.RB 1135. 1143-44
(1958), enforcement denied 264 F.2d 637 (7th Cir. 1959).
22 In Kelso Marine. Inc:, supra. the line foreman whose discharge was pro-
tested not only lunched with his supervisees, but worked closely with them
and shared their grievances.
23 Compare Henning and Cheadle, Inc., 212 NLRB 776 (11974).
pacts on employees' working conditions to render
protected any concerted employee protests over said
individual's selection. It thereby effectively sanctions
every employee protest over the selection of supervi-
sory personnel, apparently even those urging the ter-
mination of a supervisor.
To allow employees to engage in concerted activi-
ties, including strikes, upon some whimsical notion of
dissatisfaction with management's selection of a su-
pervisor, not only undermines the stability of the
work environment, but also provides protection for
activities which involve neither conditions of employ-
ment nor a labor dispute within the meaning of the
Act. Further, it places in the hands of rank-and-file
employees a determination which has traditionally
been vested with management, without regard to effi-
ciency or adequacy of the supervisor's ability to per-
form supervisor responsibilities.
I cannot, therefore, approve the shift in policy ad-
vocated by my colleagues. Rather, I would adhere to
the test articulated in Plastilite Corporation, supra,
which extends to employees no more or less than Sec-
tion 7 of the Act requires-entitlement to engage in
concerted activity for their own mutual aid and pro-
tection when their terms and conditions of employ-
ment are at stake.24 Under this test, I find that the
work stoppage of employees Gregoria Delgado,
Zoraida Martinez, Carmen Ortiz, and Jose Colon-
Vargas was not a protected concerted activity and
that Respondent did not violate the Act25 by dis-
charging them for engaging in said activity.26
24 Activities specificall5 banned by another part of the statute are, natu-
rally, not protected. Thus, had the alleged protected activity herein been
fostered by a union, it would be found to have violated Sec. 8(bX XB) of the
Act Query: Whether uncounseled employees should be afforded the protec-
tions of the Act in the extreme circumstances of this case, while employees
guided by a union cannot lawfully engage in a work stoppage in protest of
supervisory selections. See Communications Workers of America, Local No.
2550. AFL-CIO (American Telephone and Telegraph Companv, Long Lines
Department). 195 NLRB 945 19721.
25 Were I to agree with the finding of my colleagues that these discharges
siolated Sec. 8(a)(l) of the Act, I would, in accordance with my dissenting
opinion in Abilities and Goodwill, Inc.. 241 NLRB No. 5 (1979)., find that
Respondent's backpay obligation commences upon the strikers' uncondi-
tional offer to return to work.
26 I would therefore sustain the challenges to their ballots cast in the elec-
tion of June 10, 1977.
APPENDIX
NOTICES To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WIL. NOT threaten employees with dis-
charge or wvith other reprisals or with changes in
working conditions because of their support or
assistance to Sindicato General de Trabajadores,
Local 255. Amalgamated Meat Cutters and
904
PUERTO RICO FOOD PRODUCTS CORP.. ETC.
Butcher Workmen of North America. AFL-
CIO, or any other labor organization.
WE WILL NOT create the impression that our
employees' union activities are under surveil-
lance.
WE WILL NOT discharge our employees be-
cause they engage in a concerted work stoppage
for their mutual aid or protection with respect to
wages, hours, or other terms and conditions of
employment.
WE Wll.l. NOT in any other manner interfere
with, restrain, or coerce our employees in the ex-
ercise of their right to self-organization, to form.
or assist labor organizations, to bargain collec-
tively through representatives of their own
choosing, or to engage in other concerted activi-
ties for the purpose of collective-bargaining or
other mutual aid or protection as guaranteed in
Section 7 of the Act, or to refrain from any or all
such activities.
WE WILL offer Gregoria Delgado. Zoraida
Martinez, Carmen Ortiz, Jose Colon-Vargas, and
Wilfredo Maya immediate and full reinstatement
to their former jobs or, if those jobs no longer
exist, to substantially equivalent jobs, without
prejudice to their seniority or other rights and
privileges previously enjoyed and WE ILL make
them whole for any loss of earnings suffered by
reason of the unlawful discrimination against
them by paying them a sum of money equal to
the amount they normally would have earned
from the date of their unlawful discharge to the
date we offer them reinstatement, plus interest.
PUERTO RICO FOODS PRODUCTS CORP.,
TRADEWINDS FOOD, INc. AND ISIAND CAN
CORP.
DECISION
S1ATEMENI OF IHE CASE
JOHN C. MILI.ER, Administrative Law Judge: This con-
solidated case was heard in Hato Rey. Puerto Rico, on No-
vember 14-22, 1977, on the basis of an order consolidating
a complaint alleging unfair labor practices with objections
and challenged ballots in the representation case.
Upon the entire record in this case, including my obser-
vation of the witnesses and their demeanor. I make the fol-
lowing findings and conclusions. I shall first dispose of the
unfair labor practice allegations as those findings will also
affect the disposition of the objections and challenged bal-
lots in the representation case.
FINDINGS OF FACI
I. JURISDI('I ION
The Respondents, Puerto Rico Foods Product Corp.,
Tradewinds Food, Inc. and Island Can Corp.. are corpora-
tions organized under the laws of the States of New Jersey
and Delaware and the Commonwealth of Puerto Rico and
such corporations are admittedly a single integrated enter-
prise engaged in the business of processing and canning
foods products with their principal offices and plant located
at Bayamon, Puerto Rico. During the past year, Respon-
dent purchased and caused to be delivered to its plant in
Puerto Rico, goods and materials valued in excess of
$50,000. and transported from States of the United States. I
find, therefore, that Respondent is an employer within the
meaning of Section 2(6) and (7) of the Act.
Sindicato General De Trabajadores. Local 255. Amalga-
mated Meat Cutters and Butcher Workmen of North
America, AFL-CIO. is, at all times material herein, a labor
organization within the meaning of Section 2(5) of the Act.
II. BACKGROUND
In the unfair labor practice segment of this case, the com-
plaint allege the discriminatory discharge of five employees
on March 3, 1977, on the basis of their union activities
and/or their protected concerted activities, and other viola-
tions based on threats to employees of plant closure, loss of
overtime and promotions, and loss of benefits in violation
of Section 8(a)(3) and (1) of the Act.
With respect to the representation issues, a representa-
tion petition was filed on March 21, 1977. seeking an elec-
tion in a production and maintenance unit and thereafter
on April 12, 1977. the parties entered into a Stipulation fbr
Certification Upon Consent Election. An election was con-
ducted on June 10. 1977. and a tally of ballots disclosed
that of approximately 299 eligible voters, 278 ballots were
cast, of which 131 were for the Petitioner. 132 were against
the Petitioner, 14 votes were challenged, and I was void. On
June 17. 1977, the Petitioner filed timely objections to the
election and on September 19. 1977. the Acting Regional
Director issued and served on the parties an order consoli-
dating cases and notice of hearing on objections and chal-
lenged ballots in which he recommended to the Board that
the challenges to two ballots be sustained and that a hear-
ing be held to resolve the issues raised by the challenges to
eight ballots and Petitioner's Objections I, 2. and 6. There
being no exceptions filed to the Acting Regional Director's
recommendations, the Board adopted his recommenda-
tions, sustaining the challenges to the ballots of Juan Casa-
nova Navaroo and Moises Soto Ongay and directed that
Petitioner's Objections 1 2 and 6. be sent to hearing and
that issues relating to challenges to the ballots of Vidal
Acosta. Emilian Garcia Estella. Edwin H. Maury. Margari-
ta Pagan. Jose Colon-Vargas. Gregoria Delgado. Zoraida
Martinez. and Carmen Maria Ortiz also be resolved at a
hearing before an administrative law judge.
111. 11 AGED) UNFAIR ABOR PRA(CII(IES'
A. The 4/leged Discriminaloor Discharges
On March 3. 1977. Respondent terminated a supervisor
named Leocadio Perez at or about 9:30 a.m. Perez. an em-
I As ull detlailed in the record. I adhere to) my rulings that: (I I the ,ith-
drawal of the charge in Case 24-CA 3825 is without prejudice to refihng of
('ontinued
905
DF(ICISIONS OF NATIONAI. LABOR REI.ATIONS BOARD
ployee since January 5, 1977, was still in his probationary
period and according to Respondent's personnel manager,
Carrasquillo, he was terminated for lack of leadership. fail-
ure to grasp the work, and general incompetence. Employ-
ees in the labeling department located on the third floor of
the plant whom Perez supervised became upset when they
learned about the termination of Perez and the production
line known as line 303, which primarily handled the pro-
cessing of beans, stopped. The employees on line 303 prin-
cipally Delgado, informed Supervisor Recio that they
would not work until they received an explanation for the
termination of Perez. When this stoppage and the employ-
ees demand were relayed to Frank Unanue, Respondent's
president, he called (regoria Delgado, also known by the
nickname of Goyita, who was the leadperson on that line
and at the critical position by the labeling machine because
she controlled the switch which stopped or started line 303.
When Delgado reached Unanue's office, Delgado repeated
to him that employees would not work until they got an
explanation for Perez's discharge. She was advised that the
discharge was an administrative matter, that production
must be resumed, and that he would give an explanation of
such termination after working hours to a small group of
employees if they so desired. According to Ulnanue's testi-
mony, which I credit, he discharged Delgado when she re-
fused to return to work without an explanation for the dis-
charge of Perez. Thereafter, Unanue. joined enroute to the
work stoppage on the third floor by Guerra, production
manager, and Carrasquillo, the personnel manager. con-
fronted employees who were grouped near the labeling ma-
chine on line 303 and requested they return to work. Again
some of the employees there, notably Maya and ('olon-
Vargas, demanded an explanation for the discharge of Pe-
rez and again Unanue refused to give one stating that it was
an administrative matter and that production on line 303
must be resumed. Unable to reconcile their differences,
Unanue advised those employees that if they did not want
to work, to punch out and leave the plant and permit those
who wanted to work to do so. The employees involved,
namely, Martinez, Ortiz, Colon-Vargas, and Maya refused
to punch out and after vainly attempting to get other em-
ployees to walk out, left the third floor and the plant.
There is little doubt and I find that line 303 was deliber-
ately shut down because of employees reaction to the dis-
charge of Leocadio Perez2 and that there was no breakdown
of machinery preventing resumption of the running of line
303. Delgado stated that while the machine was shutdown
she inquired of Guerra about Perez's discharge. Since even
Delgado stated the inserting labels in the machine took no
more than 2 or 3 minutes, the failure of line 303 to resume
can only be attributed to a deliberate stoppage. There
would have been no reason to call Delgado up to the office
if proluction had resumed. Thus while Delgado insisted
a similar charge provided that it is not barred by Sec. 10(b) and the Regional
Director could properly issue a complaint based on a new charge since the
withdrawal did not constitute a dismissal on the merits: (2) the suhpenas ot
two Board field examiners Victor Martinez Pou and Edward Fernandez were
properly quashed in light of the General Counsel's refusal to permit them to
testify and because their testimony was irrelevant since the original case did
not involve a dismissal of the charge, on the merits. Lastly, in view of m'
disposition of the alleged 8(aX3)'s, their testimony is irrevelant and moot.
2 Referred to herein as either l.eoadio or Perez.
that the line was stopped only to insert labels, an explana-
tion was never given why production was not resumed and
why I)elgado was called to the office. On cross-examina-
tion, Delgado testified as follows:
Q. NMs. Delgado,. isn't the truth that when you went
to Mr. Unanue's office you admitted to him that ou
had stopped the machine because you wanted an ex-
planation of the discharge of Mr. Leocadio?
A. No. that was what he asked me. Whether I had
stopped the machine for that purpose and I said "no."
Sometime later the following exchange took place.
Q. At any time during the conversation with Mr.
Unanue did you ask the reasons why the Company
discharged Mr. Leocadio?
A. Yes, I did ask Mr. Unanue.
While Delgado denied stating she was not going to work
until they gave an explanation for Leocadio Perez's dis-
charge, her testimony' cannot be credited. It is undisputed
that the production line was stopped, that Delgado was
called to the office of the president because of such stop-
page, and that in her conversation there the discharge of
Leocadio came up and that she was terminated. In such a
factual context, there was no other reason for the stoppage
except the discharge of Perez.
Management representatives estimated the work stop-
page lasted approximately 45 minutes. I find that the stop-
page lasted from 20 to 45 minutes, that the stoppage was
deliberate, and that the employees on line 303 would not
resume production until they got an explanation for the
discharge of Perez. Undisputed testimony established that
the labeling machine on line 303, which is part of a continu-
ous canning "process," when stopped, results in a complete
stoppage of production of that line and the processing, in-
cluding the cooking, canning, labeling, and boxing of the
canned beans, comes to a halt. Testimony established that
production on that line is approximately 200 cans a minute
and rather obviously. an unplanned stoppage for more than
a few minutes results in a complete stoppage as to the pro-
cessing being done by that line. I do not credit employee
testimony that the extended stoppage was caused by the
necessity to insert a new supply of labels since it was unnec-
essary to stop the machine to insert new labels and even
assuming it was Delgado's practice to stop the machine to
insert a new supply, as she testified, such operation required
approximately 30 seconds to 3 minutes. Accordingly, I find
that the extended stoppage of line 303 was deliberate and
that the stoppage was to pressure management into an ex-
planation for the discharge of Supervisor Perez.
Also in dispute is whether the later discharge of four em-
ployees. Maya, Colon-Vargas. Martinez, and Ortiz, was
prompted solely by their interest in the reasons for the dis-
charge of Perez or whether it was also motivated in whole
or in part by the earlier discharge of employee [)elgado
While (olon-Vargas. Ortiz. and Delgado testified uniformly
that they were told that Perez's discharge wats an adminis-
trative matter an an example of "free enterprise." there is
little support for the view that the continued refusal to work
waits prompted by the discharge of Delgado. In the first
place. the stoppage was continuous and began prior to [)el-
gado's discharge. It was not for example, an instance of a
906
PUERTO RICO FOOl) PRODUCTS CORP.. ETC
temporary stoppage over Perez's discharge and then a re-
newed stoppage when it was learned that Delgado was dis-
charged. The stoppage was continuous and lasted from 20
to 45 minutes. To the extent there is employee testimony
supporting the view that the stoppage also concerned the
discharge of Delgado I do not credit it. Management repre-
sentatives uniformly and credibly testified in their recital of
events involving the confrontation between Unanue and the
employees on the third floor, that the name of Delgado was
not mentioned, and that the employees were demanding an
explanation of the discharge of Supervisor Perez. before re-
turning to work. Finally, Delgado testified that these other
employees told her their discharge was prompted by their
inquiries about Perez's discharge. I find and conclude that
the work stoppage and the discharges were solely over the
discharge of Supervisor Perez.
Motivation for the Discharges
There was testimony by several of the alleged discrimi-
natees that they had actively solicited union authorization
cards prior to their discharge. Further. Perez testified that
when hired he was informed that the employees in his de-
partment were active with the Union and that the depart-
ment was a trouble spot. In view of the factual circum-
stances found and related previously, and the absence of
any evidence of company knowledge as to renewed union
activity. I find little or no basis for concluding that the
discharges of' three employees. Delgado. Martinez, and Or-
tiz,' were motivated by their union activities.
With respect to whether their discharges and that of Jose
Colon-Vargas and Wilfredo Maya were motivated by their
protected concerted activities, that is a closer issue. In de-
ciding this, the principal underlying issue is whether in the
circumstances related, the conduct of the employees in re-
fusing to work was protected concerted activity.
As I previously concluded that the stoppage was caused
by the discharge of Supervisor Perez. I find it unnecessary
to reach or resolve the question of whether a work stoppage
here over the discharge of another employee is protected
concerted activity. While in some instances, a work stop-
page by employees because of the termination of a supervi-
sor may be protected concerted activity,. the activities of
Supervisor Perez were not related in any way to employees'
exercise of their Section 7 rights nor did it have a direct
impact on employees own job interests. There is no evi-
dence in the record that Supervisor Perez was engaged in
any union organizational attempts or that he resisted em-
ployer instructions to engage in conduct to discourage
union activity or that he was in any was asked to surseil
employees union activity and that he was discharged for
failure to discourage or surveil employees union activities.
There seems little dispute that Supervisor Perez as dis-
charged during his probationary period for failing to grasp
his job functions and perform in a manner expected of a
supervisor. Rightly or wrongly. management concluded
that he wias competent as a supervisor and discharged him
approximately 2 months after he was hired. Accordingly. I
See also Resp. Exh 6.
4 Kelso alanne. Irn ' 199 NlRB 7 (1972); Ijttenmnn atd (heuadle. In,
212 NL.R 776, 777 (1974)
find and conclude that Supervisor Perez's discharge was un-
related to the employees' exercise of their Section 7 rights
nor did it have a direct impact on employees own job inter-
ests and that his discharge was the sole result of manage-
ment's conclusion that he had not performed competently
as a supervisor. In view of such conclusion, I also find and
conclude that the employees work stoppage initiated to se-
cure an explanation for such discharge, while not itself vio-
lative of the Act. was nor protected concerted activity.' Ac-
cordingly. I conclude that management's decision to
terminate such employees was not motivated by their union
activities nor was their conduct protected concerted ac-
tivity. Accordingly. these five terminations are not violative
of either Section 8(a)(3) and (I) of the Act.
B. Tle 8(a)( I) .4 legriotis
These allegations are contained in paragraph 5 of the
complaint and involve three managerial people. President
Frank Unanue. Vice-President Felipe Benitez. and Mainte-
nance Supervisor Juan Soler. Discussion of the evidence
and the allegations will be discussed separately with respect
to each of these individuals. who I find. are supervisors and
agents of Respondent.
I. President Frank Unanue
On June 9, 1977, in the dining room, President Unanue
allegedly threatened employees with discharge if they gave
assistance or support to the Union. Three employee wit-
nesses. Angel Correa Felipe Marrero, and Salvador Ledee.
testified with respect to this incident. Only one of the three.
Marrero. stated that Frank Unanue said the' had fired ev-
erybody out there (in Respondent's New Jersey plant). that
they had hired new people. and that the same thing would
happen in Puerto Rico. ('orrea's testimony was that Una-
nue had stated that the Union had lost there, the employees
had been replaced with new people. and that that could
happen in Puerto Rico. Ledee's recollection of Unanue's
statement was that he had just arrived from the United
States where he had been filling out (reviewing) applica-
tions for jobs the last 2 days because 150 people had gone
on strike, and that the Union had abandoned them.
According to Ulnanue. at the meeting on June 9 1977,
the day before the election, he apologized for his appear-
ance as he had just returned from Respondent's plant in
New Jersey. lie stated he told the employees that these
people [the Union l went in there, created this conflict, and
then walked away from them and a lot of these men were
left without work. The testimony of employees (Correa.
Ledee. and Unanue are not in conflict and I credit their
testimony .
The credited testimony does not establish that Unanue
threatened employees with discharge if' they supported the
Union. tle did advise them that striking employees had
been replaced and expressed his view that the Utnion had
caused the strike and had in effect abandoned the emplos-
ees. The real facts inxolvine this other labor dispute were
not clearly set forth in this record and therefoire I am not in
a position to udge whether there was anV misrepresentat-
'See I[)h )t, ,x. I, 135 NI RB 85. 888 ( 1962
907
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion as to the facts about the labor dispute in Respondent's
stateside plant. Only one of the three employees used the
term that employees were "fired" while another stated that
employees were replaced. An employer, of course, has the
legal right to replace striking employees who are economic
strikers. While I conclude that Unanue was taking the op-
portunity to bring home to employees in the Puerto Rico
plant that the strike in the stateside plant resulted in strik-
ing employees being replaced, I find no explicit or implicit
threat to illegally discharge employees here if they sup-
ported the Union. Accordingly, this allegation shall be dis-
missed.
2. Vice President Felipe Benitez
With regard to Benitez, he allegedly did the following:
(a) At a meeting in the plant dining room in late
May. he threatened employees with discharge if they
assisted or supported the Union.
(b) At a meeting in the plant dining room in late
May or early June 1977, he made implied threats of
plant closure if the employees assisted or supported the
Union.
(c) At a meeting in the plant dining room on June
13, 1977. he threatened employees with reprisals if they
gave assistance or support to the Union.
(d) At a meeting in the plant dining room in late
May 1977, he implied and threatened employees with
changes in working conditions if they assisted or sup-
ported the Union.
(e) At or about late May 1977, in the plant dining
room, he created an impression of surveillance of em-
ployees' union meetings and activities.
Each of the above allegations will be discussed seriatum.
With respect to employees being threatened with dis-
charge, there was testimony by Ana Maria Perez that Beni-
tez stated in a meeting several weeks before the election
that, if the Union won at Goya.6 it would be the same as at
Barcardi (another plant in Puerto Rico) that except for two
or three people, employees would be hired as temporary
employees. Benitez did not testify because of poor health.
Guerra, production manager, testified that Benitez com-
pared Barcardi with Goya, noting that there was a practice
at Barcardi to suspend employees before their 90-day pro-
bationary period ended and that that did not occur at Goya
unless an employee was really bad. Zenon Rosa, Respon-
dent's security director, testified similarly that Benitez
stated that employees were discharged at Barcardi before
their probationary period was up, but that such a problem
did not exist at this plant. I credit Perez that a threat was
made that, if the Union won the election at Goya, the em-
ployment practices would become similar to that at the
Barcardi plant, namely that with few exceptions, employees
would be temporary and subject to suspension or discharge
prior to the completion of the probationary period. While it
was not a direct threat of discharge if employees supported
the Union, it was implicit that if the Union won, employees
status as permanent employees would be ended and like at
the Barcardi plant, employees would be largely temporary
6 A brand or trade name for Respondent and its products.
and subject to suspension and discharge before their proba-
tionary period ended. Accordingly, I find such statement
violative of Section 8(a)(1) of the Act.
As to (b), Benitez allegedly made implied threats of plant
closure if the employees assisted or supported the Union.
The above-cited testimony noted previously does not in my
view constitute a threat of plant closure. Other than the
testimony by Perez noted previously, which I find does not
constitute a threat of plant closing, there is no other testi-
mony supporting this allegation. Accordingly, allegation (b)
is dismissed.
As to (c), Perez credibly testified that Benitez, at a meet-
ing on June 13, 1977. the first working day following the
election, stated he knew the persons that had voted against
him, that such employees were traitors and ungrateful, and
that, in the future, he was going to point out the employees
one by one those in favor of the Union. Salvador ('ollazo
also credibly testified and corroborated Perez that Benitez
at the June 13. 1977, meeting had stated that people he had
trusted were traitors and that in the future he would point
out each of the traitors by name. Calling employees traitors
because they had supported the Union and threatening to
name them publicly in front of other employees was a clear
threat designed to hold them up to public ridicule and pos-
sibly affect their relationship with fellow employees and su-
pervisors with consequent effects on their employment rela-
tionship. Accordingly, I find such statement a threat of
reprisal which clearly coerces employees in the exercise of
their Section 7 rights.
As to (d), the threat of changes in working conditions if
they assisted the Union made at a meeting in the plant
dining room in late May 1977, 1 have previously credited
the testimony of Ana Perez that Benitez stated that if a
union won, working conditions would be like those at
Bacardi, namely, that except for two or three people who
were permanent employees, the other people would be tem-
porary employees. I find this testimony sufficient to estab-
lish that employees were threatened with changes in work-
ing conditions if the Union were to win the election. While
I recognize that I previously fIund this to be a threat of
discharge, it also constitutes a change in working conditions
for those continuing to work as temporary employees. and
is, therefore, also violative of Section 8(a)(l) of the Act.
As to (e), the allegation involving creating the impression
of surveillance, employee Salavador Collazo gave credited
and uncontradicted testimony that Benitez stated at a meet-
ing several weeks before the election that he knew where
the Union was meeting-that it was at Puente Blanco and
at Pangola. He further stated that large groups of people
from the Union were visiting the employees at night and
that such visits both impressed and scared some employees.
I find that such statements created the impression that em-
ployees' union activities were being kept under surveillance
which I find is violative of Section 8(a)(1) of the Act.
3. Maintenance Supervisor Juan Soler
Soler is alleged to have engaged in threats substantially
similar in nature to that of Benitez. Specifically, Soler, on
various dates in May and June 1977, preceding the June 10.
1977. election, is alleged to have threatened employees with
908
PUERTO RICO FOOD PRODUCTS CORP., ETC.
discharge, reprisals, loss of benefits, and changes in working
conditions if employees supported or assisted the Union.
Paragraph 5(a)(3) of the complaint alleges that on or
about June 9, 1977, in an unloading area, Soler threatened
employees with discharge if they supported or assisted the
Union. Employee Felipe Marrero credibly testified that
Soler approached him, Correa, and Edwin Rivera and
stated that if the Union won, they would reduce the person-
nel and that there would be no more promotions. On the
basis of Marrero's testimony which was substantiated in
certain respects by that of employee Angel Correa, I find
that the threat to reduce personnel if the Union won is a
threat of discharge violative of Section 8(aXl) of the Act.
Paragraph 5(b) of the complaint alleges threats of dis-
charge of employees in early June at the maintenance shop.
The only witness for the General Counsel, Luis Colon Gon-
zalez, stated that Soler stated employees had to vote for the
factory (management) because, if the Union won, the union
people would work to close down the factory and the
Union would not allow employees to work overtime. While
I have credited this testimony for purposes of other allega-
tions, I do not find in this statement a direct or indirect
threat of discharge of employees by Respondent. Accord-
ingly, I recommend dismissal of 5(b) of the complaint.
Paragraphs 5(c)(2) and (3) of the complaint alleges that
Respondent, through Soler, made implied threats of plant
closure in the maintenance shop in early June and on June
6, 1977, in the employees' bathroom. As to the implied
threats of closure, I credit the testimony of Gonzalez, noted
above, that Soler stated that if the Union won, it would
only work to close down the plant. Admittedly, this is not a
direct or indirect threat that Respondent would close down
the plant, but it attributes the probable closing of the plant
to actions by the Union. While employees might be reluc-
tant to accept such a speculative statement of face value, it
represents management's assessment that, if the Union wins
the elections and becomes the bargaining representative, it
may ultimately result in a closure of the plant. I find such
statement emanating from management represenatives co-
ercive and violative of Section 8(a)(l). As to a similar threat
allegedly made in the employees' bathroom on June 6,
1977, I do not credit Roberto Martinez who stated that the
meeting occurred at I p.m. on June 6 since there is over-
whelming testimony that management held meetings in the
plant dining room at I p.m., at least during the week pre-
ceding the election. Accordingly, I recommend that allega-
tion paragraph 5(cX3) be dismissed.
Paragraph 5(dX)(l) of the complaint alleges that on or
about late May 1977, in the plant dining room, Soler threat-
ened employees with loss of benefits if they supported the
Union. Employee Ana Perez credibly testified that Soler
stated at a meeting that if the Union won, an employee
could not work over 40 hours a week. Her testimony was
corroborated by the credible testimony of Salvador Collazo
that Soler stated while employees were permitted to work
overtime and on Saturday now, if the Union came in, the
Union would not allow the workers to work overtime be-
cause they wanted additional people hired. On the basis of
the above credited testimony, I find that Soler's comments
that overtime would be done away with if the Union came
in constitutes a threat of loss of benefits and is violative of
Section 8(a)( ) of the Act.
The second part of paragraph 5(d), which for purposes of
clarity I will designate as 5(dX2), alleges that on June 6,
1977, at the dining room and maintenance shop, respec-
tively, Soler threatened employees with loss of benefits if
employees assisted or supported the Union. There is no tes-
timony with respect to alleged comments made by Soler on
June 6 in the dining room, or in the maintenance shop. The
testimony of Gonzalez which I have credited related to
comments made in the maintenance shop some 8 days be-
fore the scheduled June 10, 1977, election. The testimony of
Martinez which I discredited related only to the bathroom
incident of June 6. Accordingly, I shall dismiss the last part
of the allegation in 5(d).
Paragraphs 5(e)(1) and (f)(2) concern the same set of
facts. They allege that on June 9, 1977, in an unloading
area of the plant, Soler threatened employees with reprisals
and changes in working conditions. Angel Correa credibly
testified that on that date, Soler came to where he and sev-
eral other employees were working and said that if the
Union won, there would be no increases in salary, no pro-
motions, and that overtime would be eliminated. Employee
Felipe Marrero credibly testified in a similar vein that Soler
stated there would be no more promotions and that person-
nel would be reduced. In view of the credited testimony, I
find that Soler's comments constituted threats of reprisals if
employees supported the Union in the forthcoming election
and were violative of Section 8(aXl) of the Act. Paragraph
5(f) of the complaint alleged the same facts as changes in
working conditions, and as an additional violation of Sec-
tion 8(aX1). As the reprisals alleged and found are also
alleged as changes in working conditions, the necessity for
5(f) is questionable and at best redundant and cumulative.
Since it is, however, technically a change in working condi-
tions, that too is violative of Section 8(a)(l) and I so find.
IV. THE REPRESENTATION PROCEEDING
A. The Challenged Ballots
The ballots of four employees allegedly discriminatorily
discharged on March 3, 1977, were challenged by the Em-
ployer at the June 10, 1977, election. As I previously con-
cluded that the discharges of Gregoria Delgado, Zoraida
Martinez, Carmen Ortiz, and Jose Colon-Vargas were not
for union activities or for protected concerted activities, the
challenges to the ballots of these four employees are sus-
tained.
There remain for resolution the challenges which were
made by the Union to the ballots of Vidal Acosta, Emilian
Garcia Estella, Edwin H. Maury, and Margarita Pagan.
There was no evidence presented by the Union on behalf of
the challenge to the ballot of Margarita Pagan. Since the
party challenging the ballot has the burden of sustaining
that challenge and has not done so here, I recommend the
challenge to the ballot of Margarita Pagan be overruled.
I. Vidal Acosta
Ivan Carrasquillo, Respondent's personnel manager,
credibly testified that Acosta occupied the position of driver
909
DECISIONS OF NATlIONAL LABOR RELATIONS BOARD
and that he punched his timecard at the same place as the
drivers and trailer-drivers, and that he spent most of his
time on the street driving. He is directly supervised by
Frank Unanue, the president of the Company. On cross-
examination Carrasquillo conceded that Unanue utilizes
him as his personal chauffeur, including driving Unanue's
mother to different places, and for other personal matters
for Unanue. He drove vehicles ranging from Unanue's car,
pickup buses, or the company station wagon. He was in
effect, a general chauffeur who wore civilian clothes and did
not wear any plant unifobrm.
The appropriate collective-bargaining unit was all pro-
duction and maintenance employees, including all plant
clericals, drivers, helpers, warehousemen, and mechanics.
The record establishes that Vidal Acosta is a general chauf-
feur, but unlike another chauffeur discussed hereafter, Ed-
win Maury, he does not wear a uniform. but wears civilian
clothes and also performs as a personal chauffeur fbr the
president of the Company, including running personal er-
rands. While the percentage of time he spends running er-
rands for other people in the Company is not delineated in
the record, I find that his primary function was to act as
personal chauffeur fobr Unanue, the Company president.
When he was not so utilized, the Company utilized him to
run business errands and to take people home who worked
late. I find that Acosta is a general chauffeur, even though
his position is primarily that of personal chauffeur to the
company president. In such role, he performs; like that of
any other driver or trailer-driver employed by the Com-
pany. I conclude that his job function is essentially that of a
driver. I shall, therefore, overrule the challenge to his ballot.
2. Emilian Garcia Estella
Julio Sanchez, a supervisor in the kitchen where Garcia
Estella works, testified that she works in the kitchen like
other employees. Garcia distributes vegetables and peels
them. She is a "pusher" who pushes the production. She
does not give orders to other employees nor does she substi-
tute for Sanchez, the admitted supervisor in the kitchen,
when he is out. She punches a timecard like other employ-
ees and is paid by the hour. She wears the kitchen uniform
that all employees wear. She is paid 10 cents more an hour
because she is a pusher. As a pusher, she must always have
material available for the other women and also delivers the
utensils to be utilized. There are approximately 30 to 40
people employed in the kitchen. According to Sanchez, he
is the only supervisor in the kitchen and Garcia Estella is
the only "pusher."
Garcia Estella was challenged on the basis of being a
supervisor. In response to questions Sanchez said that Gar-
cia Estella does not assign workers to certain tables nor
does he tell them what to do.
Employee Collazo stated that Garcia Estella duties in-
clude supervising, organizing, and placing the women at
their work and distribution of the work and that she has
done so for the past 2 years. He also testified that her offi-
cial title is supervisor of personnel. On cross-examination,
Collazo stated that he worked in the retort section in the
back of the factory and is located approximately 90 feet
away from the place Garcia Estella works. He conceded
that he works looking toward the outside of the building
and with his back to the kitchen.
Employee Roberto Martinez Morales stated he was a
kitchen helper and described Garcia Estella as the women's
supervisor. He further explained that she distributed work
to the women and when employees are new she directs
them and teaches them. He also stated that when Sanchez,
the supervisor in the kitchen, gives an order, Garcia Estella
goes over and places them (the women). Garcia Estella has
been employed there approximately 10 years. Garcia Es-
tella does not have the authority to hire or fire nor, fobr that
matter, does Sanchez, the admitted supervisor in the
kitchen.
The accurateness of the testimony of Salvador Collazo
and Roberto Martinez is subject to question. Collazo works
in the retort section with his back to the kitchen. As to
Martinez, on direct-testimony he stated he was a kitchen
helper. On cross-examination, he agreed that he worked in
the retort section of the plant. His actual job function was
not clarified thereafter in the record, although he stated he
worked several steps away from the kitchen. Despite the
discrepancy as to where Martinez worked, I credit his testi-
mony that she (Garcia) implements the orders of Supervisor
Sanchez and tells the women where to go and what to do. A
pusher cannot effectively perform her job if she cannot di-
rect or tell people what to do. To the extent that Sanchez
testified to the contrary, I do not credit him. I find that as a
senior female employee she directs the women in the
kitchen and in implementing the orders of Sanchez, she uses
independent judgment and her expertise developed over
some 10 years of employment. The fact that she is paid 10
cents more an hour and is designated as a "pusher" sub-
stantiates my conclusion that she exercises sufficient au-
thority to be classed as a supervisor within the meaning of
the Act. In so concluding. I have also taken into consider-
ation that, if she is not a supervisor, Sanchez is the only
supervisor in a department which has from 30 to 40 em-
ployees. Accordingly, I find that Garcia Estella is a supervi-
sor within the meaning of the Act and I therefore recom-
mend that the challenge to her ballot be sustained.
3. Edwin Maury
His ballot was challenged by the Union on the ground he
is a messenger. According to the testimony of Personnel
Director Carrasquillo, Maury is a utility driver or general
chauffeur who drives a panel delivery truck, is paid on an
hourly basis, and punches a timecard. He wears the same
uniform that male employees of the production and mainte-
nance departments wear. His major duty is to pick up parts
from suppliers for the parts department. He also spends
approximately a half-hour each day in picking up the mail.
In support of the objection, employee Salavador Collazo
stated that Maury reports to the general office and that his
duties consist of going to the bank and the post office and
he make delivers to wherever he is sent. He also stated that
Maury worked only at the general offices of the plant, and
that sometimes he wore the regular work uniform and
sometimes he wore regular civilian clothes. Another em-
ployee. Roberto Martinez. testified that Maury was seen
910
PIl ERTO RICO FOOD PRO)IUC1S ('ORP., ETC.
many times with a hrietcase and wits a messenger and he
did not see perform an: other duties. lHe also stiated he
wore a unitorm like his. namel, blue shirt and trousers. lHe
also stated he could not say M ury spent most of his time.
whether in the otffice or in the street.
It is clear that Maurv drives a panel truck making pick-
ups and deliveries, wears the same unlitorm a other male
employees in maintenance and production, is hourly paid.
and punches a timecard like other drivers. While it appears
that he performs messenger duties a small portion of his
working time. employee testimon as to his job duties is
rather vague and incomplete. I find that his work duties are
essentialls that oft a general chauffeur and that his commu-
nity of interest is primarily with other drivers in the plant. I
find him properly included in the unit and I recommend the
challenge to his ballot be overruled.
Summary of' Disposition of Challenged Ballots
For the reasons previously noted, I recommend that the
objections to the ballots of G(regoria Delgado. Zoraida
Martinez. Carmen Ortiz, and Jose Colon-Vargas be sus-
tained. I further recommend that the challenges to the hal-
lots of Margarita Pagan, Vidal Acosta, and Edwin Maury
be overruled. I.astlv, I recommend that the challenge to the
ballot of Emilian Garcia Estella he sustained.
B. Objections o the Eleclion
The 8(a)(1) violations previously found parallel the ob-
jections to the election. The violations found are in my
judgment sufficient to warrant setting aside of the election
and I so recommend. A new election shall he held by the
Regional Director after severance of the representation pro-
ceeding from this consolidated proceeding.
CoN'(t USI()NS OF LAW
1. Respondent, a single integrated enterprise. is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. By threatening employees with discharge and other
reprisals, and changes in working conditions if they assisted
or supported the Union, Respondent violated Section
8(a)( ) of the Act.
3. By creating the impression that the union activities of
the employees were under surveillance. Respondent inter-
fered with the employees' exercise of their Section 7 rights
and thereby violated Section 8(a)( 1) of the Act.
4. The discharges of employees Gregoria Delgado,
Zoraida Martinez, Carmen Ortiz. Jose Colon-Vargas, and
Wilfredo Maya were not in violation of either Section
8(a)(3) or (I) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
6. Except as specifically found herein. Respondent has
not engaged in violations of Section 8(a)(1) and (3) of the
Act.
lill RIxti)
I1aving fund that Respondent has engaged in certain
untfair labor practices. it will be recommended that Respon-
dent be ordered to cease and desist therefrom and that it
take certain affirmative action designed to effectuate the
purposes of the Act.
tipon the foregoing findings of fact. conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
.Act. I herebs, issue the following recommended:
ORDFlR-
The Respondent. Puerto Rico Food Products Corp..
I radewinds Food. Inc. and Island ('an C(orp.. Bayamon.
Puerto Rico. its officers, agents. successors, and assigns.
shall:
i. (ease and desist from:
(a) Threatening employees with discharge. or with other
reprisals or with other changes in working conditions, be-
cause of their support or assistance to the Union.
(hb) Creating the impression of surveillance of employees'
union activities.
(e) In an' like or related manner interlering with, re-
straining, or coercing employees in the exercise of their
rights to self-organization, to form, join, or assist Sindicato
General de Trabajadores. Local 255. Amalgamated Meat
('utters and Butcher Workmen of North America. AFI,
CIO, or any other labor organization. or to engage in con-
certed activities ifor the purpose of collective bargaining or
other mutual aid or protection as guaranteed in Section 7 of
the Act, or to refrain from ans or all such activities.
2. Take the following affirmative action which is deemed
necessary to effectuate the policies of the Act:
(a) Post at its place of business at Bayamon, Common-
wealth of Puerto Rico, copies of the attached notice marked
"Appendix."? Copies of said notice shall be posted in both
English and Spanish and shall be on forms provided by the
Regional Director for Region 24. and after being duly
signed by Respondent's representative, shall be posted by it
immediately upon receipt thereof, and he maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are custom-
arily posted. Reasonable steps shall he taken by Respon-
dent to insure that said notices are not altered. defaced, or
covered by any other material.
(b) Notify the Regional Director t'or Region 24, in writ-
ing. within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions. and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
I 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."
911
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER ORDERED that Case 24-RC-5949 be sev-
ered and remanded to the Regional Director for Region 24
to open and count the overruled, determinative challenged
ballots, and thereafter to issue a revised tally of ballots.
Should said tally of ballots indicate that the Petitioner was
designated by a majority, he shall issue a certification of
representative. Should the revised tally of ballots fail to dis-
close that the Petitioner has been designated by a majority,
the election conducted on June 10. 1977, shall be set aside
and said Regional Director shall conduct a rerun election at
such time as he deems the circumstances permit a free
choice on the issue of representation.
912