R.P.C. Inc.

National Labor Relations Board - Board Decisions

May 28, 1993

311 N.L.R.B. 232 (N.L.R.B. 1993)

232
311 NLRB No. 30
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the
issues and the positions of the parties.
The Charging Party has filed a motion to strike the Respondent’s
exceptions because they do not comply with Sec. 102.46 of the
Board’s Rules and Regulations. We deny the motion to strike. To
the extent that we are unable to identify the substance of the Re-
spondent’s exceptions, however, we deem the exceptions waived
(oral argument may further explicate a proper exception, but it is not
a substitute). The Charging Party has also filed a motion in support
of the judge’s decision, urging that it be affirmed in all parts. We
grant the motion to the extent it is consistent with this decision.
In response to the General Counsel’s request, we correct the
judge’s inadvertent error in describing a deauthorization petition to
rescind the Union’s authority to enter into a union-security agree-
ment as a decertification petition. Case 24–RD–213 is corrected to
read Case 24–UD–213.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
3 The contract was retroactive to November 14, with an expiration
date of November 13, 1991.
4 By letter dated February 22, 1989, the director for region 9A of
the UAW wrote to the Respondent to inform it ‘‘officially’’ of the
change from District 65 to Local 2286. The Respondent has denied
receiving this letter.
5 The contract identified the company as ‘‘Rorer Pharmaceutical
Corporation’’ and the Union as ‘‘District 65, United Autoworkers,
AFL–CIO.’’ The parties agreed to change the designations to
‘‘R.P.C. Inc., A Division of Rorer Pharmaceutical’’ and ‘‘Local
2286, United Autoworkers, Aerospace and Agricultural Implement
Workers of America, (UAW), AFL–CIO.’’
6 The stipulation further provided:
All internal union procedures were properly complied with, at
the level of the unit employees, the District 65 and the UAW,
and thus effective December 14, 1988, the internal union proce-
dure having been properly complied with, resulted in the estab-
R.P.C. Inc., a Division of Rorer Pharmaceutical
Corporation and Rhone Poulenc Rorer, Puerto
Rico, Inc. and District 65, United Auto Work-
ers, AFL–CIO and Local 2286, U.A.W., AFL–
CIO and International Union, United Auto-
mobile, Aerospace and Agricultural Implement
Workers of America (UAW), AFL–CIO. Cases
24–CA–5888, 24–CA–6039, 24–CA–6087, 24–
CA–6103, 24–CA–6217, 24–CA–6241, 24–CA–
6284, and 24–CA–6288
May 28, 1993
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On April 6, 1992, Administrative Law Judge Rich-
ard H. Beddow Jr. issued the attached decision. The
Respondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, the Charging
Party filed a request to strike exceptions and an an-
swering brief, and the Respondent filed a reply brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs1 and has
decided to affirm the judge’s rulings, findings,2 and
conclusions as further explained below and to adopt
the recommended Order.
The judge found, and we agree, that the Respondent
violated various sections of the Act, including Section
8(a)(5) of the Act by, among other things, withdrawing
recognition of the Union and repudiating its existing
contract with the Union. In its defense, the Respondent
had contended that it was privileged to act as it did be-
cause, according to the Respondent, the Union had
achieved its status as the employees’ representative
through a critically flawed affiliation process. We find,
for the reasons set forth below, that the Respondent is
estopped and time barred from challenging the Union’s
affiliation process.
As more fully described by the judge, prior to 1978,
District 65, UAW, had a longstanding collective-bar-
gaining relationship with USV Laboratories. In 1987,
USV was acquired by RPC Inc., a Division of Rorer
Pharmaceuticals. Rorer recognized District 65 and as-
sumed the extant collective-bargaining agreement,
which was due to expire on June 1, 1988. The unit of
employees at Rorer represented by District 65 was re-
ferred to as ‘‘District 65-Rorer.’’
In May 1988, the parties commenced negotiations
for a new collective-bargaining agreement. During the
negotiations, in May and again on November 1, local
representatives of District 65-Rorer informed the Re-
spondent’s representatives that District 65-Rorer mem-
bers were in the process of leaving District 65 and be-
coming instead a chartered local of the UAW. The par-
ties reached agreement on a new contract on Novem-
ber 1. At a contract ratification meeting held on No-
vember 4, employees voted to ratify the contract and
further voted unanimously to leave District 65 and to
affiliate as a separate local of the UAW. The new con-
tract was executed on November 21.3 Subsequently,
according to the Respondent’s minutes of a February
17, 1989 meeting between the Respondent and the
Union, local union officials advised the Respondent
that the membership had approved the change from
District 65 to a local of the UAW and that it was ex-
pected that a UAW representative would soon inform
the Respondent that this change had been approved by
the UAW.4 Finally, as found by the judge, the parties
on April 27, 1989, entered into a stipulation in which
they agreed to substitute the parties named in the stipu-
lation—i.e, the Respondent and Local 22865—for
those set forth on the cover page of the contract exe-
cuted the previous November 21.6 Thereafter, the Re-
233R.P.C. INC.
lishment of Local 2286, UAW to represent the employees in the
appropriate unit herein.
All entities mentioned in this paragraph represent and warrant
that the internal union procedures were fully complied with and
agree to hold harmless the employer for any act or conduct en-
gaged in by the employer, as a result of the recognition of the
change from District 65 UAW to Local 2286, UAW.
All parties herein agree that the change in the name of the
employer and the change in the name of the labor organization,
as expressed herein, will reflected by amendment of the parties,
in any further proceedings in the pending Board cases, and the
changes to which this Stipulation refer to will not be raised as
a defense by any of them to preclude any further processing.
[Sic.]
7 See McClintock, Principles of Equity at 80 (2d ed. 1948), as
quoted in Lehigh, supra at 1382:
The gist of equitable estoppel is that a party who has by his
statements or conduct, asserted a claim based on the assumption
of the truth of certain facts, whereby he has obtained a benefit
from another party, cannot later assert that those facts are not
true if thereby the other party will be prejudiced.
8 In Lehigh, supra, the employer was estopped from challenging
the merger of two unions because the employer had continued to
bargain with the merged union for a year after the merger took
place. Other examples of employer conduct constituting acceptance
of a union’s status include processing grievances, making contribu-
tions to health and welfare funds, deducting dues, and engaging in
bargaining. See Sewell-Allen Big Star, 294 NLRB 312, 313 (1989).
9 See, e.g., Bob’s Big Boy Family Restaurants, 259 NLRB 153,
154 fn. 9 (1981).
10 As previously discussed, to prove ‘‘knowledge’’ under the doc-
trine of estoppel, it need not be established that the party to be es-
topped had knowledge of all the details or even the bona fides of
the event in issue. Rather, to be estopped a party must have had
knowledge of an event and have had the opportunity either to accept
or refuse to accept the ramifications of that event.
11 For the reasons explained above, the Respondent’s assumptions
regarding the validity of the affiliation vote that led it to continue
to bargain are not in issue.
spondent dealt with Local 2286 as the bargaining rep-
resentative of the unit employees. The Respondent,
after initially deducting dues and placing them in es-
crow, forwarded them to Local 2286 pursuant to the
contractual checkoff provision. The Respondent and
Local 2286 also entered into successive stipulations to
amend various provisions of the collective-bargaining
agreement. On February 5, 1990, however, the Re-
spondent withdrew recognition of the Union. As noted,
the Respondent contended that the Union had achieved
its status through a flawed affiliation process. Thus, the
Respondent argues that: (1) the employee petition
seeking a change in affiliation was flawed; (2) there
was no prior notice to the employees of the proposed
change and no opportunity for adequate discussion;
and (3) there was no secret-ballot vote on the change.
For reasons that follow, we find, as did the judge,
that the Respondent is estopped from contesting the
validity of the Union’s affiliation process. Similarly,
the policies underlying Section 10(b) of the Act pre-
clude the Respondent’s belated challenge to the
Union’s affiliation.
We first examine the principle of equitable estoppel.
As discussed in Lehigh Portland Cement Co., 286
NLRB 1366, 1382–1383 (1987), a party that, in ob-
taining a benefit, engages in conduct that causes a sec-
ond party to reasonably rely on the ‘‘truth of certain
facts’’ that are assumed may not controvert those facts
later to the prejudice of the second party.7 The grava-
men of the harm is not the first party’s original con-
duct but rather the inconsistency of its later position.8
A party may be estopped from denying representations
even though that party had no timely knowledge of
their falsity. Thus, the estoppel doctrine does not oper-
ate only when a party makes an assertion or acts in ac-
cord with a valid belief. Rather, the key is that the es-
topped party, by its actions, has obtained a benefit. Ba-
sically, as discussed in Lehigh, the validity of a party’s
belief is irrelevant. Otherwise, a party to be estopped
could often escape the application of the estoppel doc-
trine by simply claiming that it was unaware of all the
facts when it acted.
Here, the General Counsel has made a persuasive
case for application of the estoppel doctrine. The ele-
ments of estoppel9—knowledge, intent, mistaken be-
lief, and detrimental reliance—have all been satisfied.
The Respondent had knowledge of the affiliation no
later than February 1989. Indeed, the Union informed
the Respondent in November 1988 that the affiliation
was pending. At the February 1989 meeting, the Union
informed the Respondent that the employees had ap-
proved the affiliation. At that point, the Respondent
had notice that the affiliation was essentially complete
and it had the opportunity to either accept or challenge
the affiliation.10 Finally, by entering into the April 27,
1989 stipulation, the Respondent officially accepted
what it already knew and had failed to challenge. It
recognized Local 2286 as the representative of its em-
ployees. By recognizing the Union, the Respondent in-
duced the Union to believe that the Respondent would
forgo any challenge it might have had to the Union’s
affiliation procedure. The Union, acting on its belief
regarding the Respondent’s intentions, relied to its det-
riment on the Respondent’s actions. That is, if its af-
filiation procedure had been promptly challenged in
early 1989, the Union would have been in a better po-
sition to establish that its procedure was valid or to
rectify any infirmity in that procedure (and the ongo-
ing day-to-day representation of the employees could
have been assured during the time needed for any cor-
rective action). Indeed, the Union could have resorted
to the Board’s processes or other means to reestablish
its status as the employees’ representative. Therefore,
we find, as contended by the General Counsel, that all
elements of estoppel have been satisfied.11
The Respondent, however, argues that it is not es-
topped. According to the Respondent, at the time it
recognized the Union, it did not know the facts sur-
rounding the affiliation procedure because it was af-
234 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 An amalgamated local union is a local that includes several
small bargaining units with different employers located within a spe-
cific geographic area. The UAW constitution procedural require-
ments are for withdrawal from an amalgamated local.
13 In the context of whether an employer may, as a defense to a
refusal to execute an agreed-on contract, challenge a union’s contract
ratification procedure, the Board has held that, in the absence of a
specific agreement to the contrary, it is for the union to determine
whether its internal procedures for contract ratification have been
met. See, e.g., Childers Products Co., 276 NLRB 709, 711 (1985),
affd. mem. 791 F.2d 915 (3d Cir. 1986); cf. Beatrice/Hunt-Wesson,
302 NLRB 224 (1991) (employer may challenge method of contract
ratification where parties had, prior to entering into an agreement,
discussed ratification and clearly defined what procedures would be
followed).
14 The fact that the Respondent accepted the hold-harmless clause
in the April 27, 1989 stipulation does not prevent the application of
equitable estoppel principles. Having been put on notice of the affili-
ation no later than February 1989, the Respondent had an oppor-
tunity to question and challenge that affiliation. In similar cir-
cumstances involving a union merger and a hold harmless clause in
Knapp-Sherrill Co., 263 NLRB 396, 398 (1982), the Board held that
‘‘the [e]mployer had but to question initially the merger procedures
rather than recognize [the union], and as the [e]mployer conducted
business with [the union] in a manner fully consistent with its rec-
ognition for 2 years thereafter, we find the [e]mployer may not now
challenge the procedures employed in the merger.’’ (Footnote omit-
ted.)
15 We need not, and do not, rely on the judge’s imputing the
knowledge of Supervisor Rivera to the Respondent. The judge found
that Rivera had knowledge of the affiliation process. Rivera became
a supervisor in March 1989. The judge imputed to the Respondent—
as of that date—all knowledge that Rivera had regarding the alleged
infirmities in the affiliation procedure. Thus, the judge in effect con-
cluded that the Respondent learned of the alleged infirmities in
March, rather than December, 1989. Under our analysis, it is unnec-
essary to decide whether Rivera’s knowledge may be imputed to the
Respondent because estoppel does not depend on the Respondent’s
specific knowledge of the alleged infirmities in the ratification pro-
cedures.
16 In regard to equitable estoppel and the policy of Sec. 10(b), the
Respondent contends that Sewell-Allen, supra, as well as Control
Services, 303 NLRB 481 (1991), support its position. According to
the Respondent, these cases dictate that estoppel and Sec. 10(b) can-
not be invoked unless the party to be estopped or barred had knowl-
edge of all facts and alleged infirmities regarding an event and still
chose not to contest that event. We do not agree. In Sewell-Allen,
an employer sought to challenge the validity of a merger of a union
as a defense to an 8(a)(5) allegation. The Board held that the doc-
trine of estoppel and the policies underlying Sec. 10(b) precluded the
employer from doing so. The Board reasoned that the employer had
notice of the merger and thereafter chose to deal with the merged
union over a 7-month period. In so finding, and contrary to the Re-
spondent, the Board did not rely on, or find critical, the employer’s
knowledge or lack of knowledge of alleged infirmities in the merger
process. Sewell-Allen, supra at 312–314.
In Control Services, supra at 482 fn. 8, the Board similarly refused
to permit an employer’s belated challenge to a union merger elec-
tion. The Board found that the employer was estopped where nearly
a year after the merger the employer named the merged union in its
proposed contract and continued to deduct dues even some 9 months
firmatively misled by the Union. It submits that the
Union gave it assurances that the Union—during the
affiliation process—complied with its internal union
procedures. According to the Respondent’s interpreta-
tion of those procedures, the Union’s representations
were false. We cannot agree.
The burden is on the party seeking to avoid an oth-
erwise binding bargaining obligation to demonstrate
the irregularity justifying its refusal to bargain, as it is
with any affirmative defense. See Insulfab Plastics,
274 NLRB 817, 821 (1985), enfd. 789 F.2d 961 (1st
Cir. 1986). We find, contrary to the Respondent’s as-
sertions, that it has not established that the Union in-
tentionally and affirmatively misled it.
The judge essentially found that the Union did not
misstate what had occurred during the affiliation proc-
ess. The judge noted that no provision of the UAW
constitution addresses the sort of change that occurred
here. That is, Local 2286 was not created by a typical
withdrawal from an amalgamated local,12 the situation
addressed by the constitutional provisions. Instead the
local membership of District 65 created a chartered
local of the UAW. In this rather unusual circumstance,
the UAW constitution does not dictate the exact proce-
dures to be followed. Significantly, the officials of
both District 65 and the UAW have approved the
change and neither organization has objected to the
procedures that led to the creation of Local 2286.
These facts totally undermine the Respondent’s argu-
ment that the Union misrepresented to the Respondent
the Union’s internal process.13 We conclude that the
Respondent has failed to establish that it was affirma-
tively misled by the Union. We therefore reject the Re-
spondent’s argument that it was thereby privileged in
February 1990 to avoid estoppel14 and challenge Local
2286’s successor status by withdrawing recognition of
the Union.15
Section 10(b) of the Act similarly dictates that the
Respondent be precluded from challenging the status
of Local 2286. As set forth in Sewell-Allen Big Star,
294 NLRB 312, 313–314 (1989), the policies underly-
ing Section 10(b) dictate that a party may not indi-
rectly attack—more than 6 months after the event in
issue—the validity of a merger (or affiliation) process
through a defense to a later withdrawal of recognition.
Here, the Respondent attempts to do just that. It seeks
to justify its February 1990 withdrawal of recognition
on the basis that the affiliation occurring in November
1988 (and of which the Respondent had knowledge by
February 1989) was not valid. The Respondent’s chal-
lenge to the validity of the affiliation at least a year
after it had knowledge of that affiliation came too late
and cannot be considered a defense to the 8(a)(5) alle-
gation. In this respect, the situation is no different from
any belated attempt to attack a union’s majority status
as of the time of recognition.
As it argued in defending against the General Coun-
sel’s equitable estoppel position, the Respondent sub-
mits that Section 10(b) was not triggered because it did
not have knowledge of all facts relating to the affili-
ation.16 To be sure, the 10(b) period commences only
235R.P.C. INC.
after that. The union relied on the employer’s failure to challenge
the merger, that is, the union did not seek to reestablish its status.
As noted in Lehigh, supra at 1383 fn. 50, estoppel—unlike waiver—
does not turn on knowledge. The Board, in Control Services, found,
‘‘[i]n addition’’ to its finding of estoppel, that the employer ‘‘know-
ingly and intentionally waived’’ its right to challenge the union’s
merger. But the waiver finding was separate from the finding of es-
toppel. Finally, in another separate finding in Control Services, the
Board held that Sec. 10(b) prevented the employer from challenging
the merger more than 6 months after accepting that merger. Neither
the conclusion regarding estoppel nor that regarding Sec. 10(b) relied
on a finding that the employer—at the time it recognized the
union—had knowledge of any and all alleged infirmities in the
merger process.
17 Although Member Devaney agrees with this general proposition
and as it is applied in the context here, he finds it unnecessary to
rely on A & L Underground, in which he dissented.
18 The Board recognizes that the 10(b) period does not begin if
one party has fraudulently concealed the operative facts that could
give rise to a violation of the Act. See, e.g., O’Neill, Ltd., 288
NLRB 1354 (1988), enfd. 965 F.2d 1522 (9th Cir. 1992). For the
reasons set forth above in regard to equitable estoppel, we conclude
that the Union here did not fraudulently conceal the operative facts.
Rather, the Union reported to the Respondent that the affiliation had
been completed in a manner that it viewed—as did the UAW and
District 65—as consistent with its internal procedures.
19 In light of our findings regarding equitable estoppel and Sec.
10(b) of the Act, we need not pass on the judge’s finding that there
was substantial continuity between the pre- and postaffiliated union
and that the affiliation process complied with minimal due-process
safeguards.
20 In its exceptions to the judge’s recommended remedy, the Re-
spondent argues among other things that the judge erred in imposing
on the Respondent an obligation to bargain for a specific 21-month
period. We agree with the Respondent. Based on the violations
found, the Respondent’s obligation is to bargain, on request, with the
Union and if an agreement is reached, to embody it in a signed
agreement. As the judge did not include the 21-month requirement
in his recommended Order, we need not modify his Order in this
regard.
The Respondent also contends that it is entitled to an ‘‘offset’’
against certain parts of the make-whole remedy ordered by the judge
because it has already paid for various employee benefits. We leave
to the compliance phase of this proceeding a determination of
whether the Respondent is in fact entitled to an offset for payments
previously made.
when a party has clear and unequivocal notice of the
action giving rise to an alleged violation of the Act.
See, e.g., A & L Underground, 302 NLRB 467, 469
(1991), and cases cited.17 But it is knowledge of the
act or event to be challenged that triggers Section
10(b); there is no requirement that an affected party
have knowledge of all the circumstances leading up to,
or surrounding, the event in issue. Thus, for purposes
of Section 10(b), the Respondent—on learning of the
affiliation and being asked to accept it—had 6 months
to challenge that procedure and the resulting affili-
ation.18 Having failed to do so, it cannot now chal-
lenge the affiliation.19
In sum, we find that the Respondent knew of the
change in affiliation and had ample opportunity to
challenge the propriety of that affiliation. Having in-
stead chosen to deal with Local 2286 as the bargaining
representative of the unit employees, it may not now—
because of the doctrine of equitable estoppel and the
policy set forth in Section 10(b) of the Act—evade its
bargaining obligation by asserting facts at variance
with its previous position. We accordingly adopt the
judge’s conclusion that the Respondent violated Sec-
tion 8(a)(5) of the Act by withdrawing recognition of
the Union and repudiating the extant collective-bar-
gaining agreement.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, R.P.C. Inc., a Division of
Rorer Pharmaceutical Corporation and Rhone Poulenc
Rorer, Puerto Rico, Inc., Maniti, Puerto Rico, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order.20
Virginia Milan-Giol, Esq. and Efrain Rivera Vega, Esq., for
the General Counsel.
Francisco Chevere, Esq., of San Juan, Puerto Rico, and Tim-
othy P. O’Reilly, Esq. and Jeffrey E. Flemming, Esq., of
Philadelphia, Pennsylvania, for the Respondent.
Betsey A. Engel, Esq., of Detroit, Michigan, and Ginoris
Vizcarra DeLopz-Lay, Esq., of Santurce, Puerto Rico, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW JR., Administrative Law Judge. This
matter was heard in Hato Rey, Puerto Rico, on April 8–18,
and July 31 through August 8, 1991. The proceeding is based
on a series of charges filed December 6, 1988; October 25,
1989; February 8, March 1, August 10, October 3, 1990; and
January 22 and February 1, 1991, respectively, as amended,
by District 65, United Auto Workers, AFL–CIO and/or Local
2286, United Auto Workers, AFL–CIO. The Regional Direc-
tor’s consolidated amended complaint, dated March 22, 1991,
alleges that Respondent R.P.C. Inc., a Division of Rorer
Pharmaceutical Corporation, of Manati, Puerto Rico, violated
Section 8(a)(5), (3), (2), and (1) of the Act by:
1. Withdrawing recognition from the Union on February 5,
1990, repudiating an extant collective-bargaining agreement;
making unilateral changes designed to undermine the Union,
including denials of access, refusals to process grievances to
arbitration, and refusals to provide information; and unilater-
ally improving employee terms and conditions of employ-
ment in order to dissuade employees from supporting the
Union.
2. Giving written warnings to employee Carmen Hilda
Rolon on July 12 and September 21, and suspending Rolon
from employment for a 3-day period.
3. Issuing a written warning to employee Ines Velez on
August 2; and imposing more onerous terms and conditions
of employment on Velez since August 1.
4. Permitting a group of employees to campaign against
the Union during paid working time on August 3.
236 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Appropriate motions to correct the transcript were filed by the
General Counsel and the Respondent. The motions are granted and
the pleadings will be identified and received as G.C. Exh. 106 and
R. Exh. 40, respectively.
Subsequent to the preparation of a decision in these matters, the
General Counsel, by pleading dated March 11, 1992, moves to admit
as G.C. Exh. 105, a copy of the Board’s February 28, 1992 Decision
and Certification of Election (and a corrective Order dated March 9,
1992), in Case 24–RD–356 which affirms the hearing officials’ re-
port reflected in G.C. Exh. 2, a case involving the parties in this pro-
ceeding. The Board can obviously take notice of its own decisions
and as it helps to clarify and complete the record in this proceeding,
I find it appropriate to grant the motion and receive the exhibit.
Also, subsequent to the drafting of this decision, the Respondent
and Charging Party filed certain other letters or motions. They were
not considered in the preparation of this decision and as any further
rulings on such matters would serve no useful purpose they will be
denied or otherwise rejected.
5. Engaging in pre- and postelection conduct designed to
discourage the employees’ support for the Union.
On brief, the General Counsel moves to amend out of the
complaint paragraphs 9(j), 12(a), (b), and (c) to the extent it
refers to the creation of the impression of surveillance, 12(g)
to the extent that it refers to Jorge Gaitan, 14(a), (b), (l), and
16. Inasmuch as the motion is restrictive in nature it is grant-
ed.
Subsequent to several requests for extension of the filing
date, briefs were filed by all parties on January 14, 1992.
Thereafter certain other pleadings also were filed.1
On a review of the entire record in this case and from my
observation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent is engaged in the manufacture and distribution
of drugs, medicines, and related products. It operates a facil-
ity at Maniti, Puerto Rico, where it annually purchases and
receives goods and materials valued in excess of $50,000 di-
rectly from points outside Puerto Rico and it admits that at
all times material, it has been an employer engaged in oper-
ations affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act. It also admits that the Union
is a labor organization within the meaning of Section 2(5) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Prior to 1986, District 65 had a longstanding collective-
bargaining relationship with USV Laboratories. The latter
company was acquired by Rorer in 1986 and Rorer recog-
nized District 65 and assumed the collective-bargaining
agreement, which was due to expire on June 1, 1988.
On April 6, 1987, Samuel Cancel, the president of District
65-Rorer, notified John J. Flynn, regional director of region
9A of the UAW (which covers bargaining units in Puerto
Rico), that he was ‘‘petitioning for a local union, as provided
by our constitution, in article 36, § 11’’ in order to solve
their problems and enclosed a petition by a committee of
eight named members. International Representative Ralph Ri-
vera (who serviced the Rorer unit), and Renee Mendez, ad-
ministrative director of District 65, also were notified.
In mid-May 1987, Mendez came to Puerto Rico with
Steve Protulis, an international representative of UAW region
9A, and joined with Local Representative Abigail Ortiz of
region 9A to visit the plant. The employees and union rep-
resentatives discussed problems with the medical plan and
reasserted their interest in local control but agreed to hold the
petition in abeyance.
By letter of May 19, 1987, President Cancel wrote Flynn
and said that the unit was withdrawing its petition for a local
based on the representative by Mendez but added:
If these promises are not kept in the date vouched for,
our membership will re-activate said petition.
The local unit was given a petty cash fund and the right
to contract for a medical plan other than the one adminis-
tered by District 65, however, as time went by, conflicts cen-
tered around the medical plan continued to generate internal
problems and disputes.
In March 1988, employee Jorge Otero Camacho filed a de-
certification petition in Case 24–RD–353. The petition was
subsequently withdrawn and the withdrawal was approved on
May 26, 1988. The Union filed a related unfair labor practice
charge against Rorer, Case 24–CA–5771, and an informal
settlement agreement was approved on May 27, 1988.
On June 1, 1988, Otero, acting jointly with a few other
employees who were identified as the ‘‘Little Group’’ (which
included Luz Delia Santos, Luis Enrique Rivera, Will
Mercado, Rafael Herrera, and Gabriel Torres), filed a second
RD petition, Case 24–RD–356, which resulted in the holding
of a Board election on September 7, 1988. Of 86 valid bal-
lots counted, 53 were for the Union, 38 against the Union,
and 10 challenged. On September 14, 1988, Rorer (not the
employee petitioners), filed objections. After a 9-day hearing
between December 1988 and February 1989, the hearing of-
ficer left the Board. On agreement of all parties, another
Board agent issued a decision on September 1, 1990, this de-
cision overruled all objections and Rorer filed exceptions
which are still pending (see fn. 1).
In the interim, in May 1988, District 65 and Rorer began
negotiations for a new bargaining agreement. The employees
continued to work under the expired contract, however, the
Company stopped deducting union dues. A final bargaining
session was held on November 1, 1988. On November 4, the
employees ratified a new contract. The parties agreed on
final contract language and the contract was executed on No-
vember 21, 1988, retroactive to November 14, 1988, with an
expiration date of November 13, 1991.
The minutes of negotiation meetings for May and Novem-
ber 1988 kept by both parties each reflect that the Company
was informed by the bargaining committee that the unit was
in the process of changing from District 65 to a chartered
local of the UAW and that the Company sought assurances
about the change in a latter meeting (when the contract was
signed).
The minutes (prepared by Respondent) of a February 17,
1989 union-employer meeting also show that the Union in-
formed the Company that the membership had approved the
change from District 65, and that they were waiting for a
UAW representative to come to Puerto Rico and hand a let-
ter over to the company approving such changes.
237R.P.C. INC.
The contract executed on November 21, 1988, identified
the Company as ‘‘Rorer Pharmaceutical Corporation’’ and
the Union as District 65, United Auto Workers, AFL–CIO.
On April 27, 1989, Respondent and Local 2286 entered into
a stipulation whereby they agreed to substitute the parties
named in the stipulation—Respondent and Local 2286—for
those named on the cover page of the contract executed on
November 21, to reflect the correct names of both Respond-
ent and Local 2286. Specifically, each agreed that the respec-
tive, ‘‘correct entity’’ would be ‘‘R.P.C. Inc., a Division of
Rorer Pharmaceutical’’ and ‘‘Local 2286, United Automobile
Aerospace and Agricultural Implement Workers of America
(UAW), AFL–CIO.’’
The stipulation further provided as follows:
All internal union procedures were properly com-
plied with, at the level of the unit employees, the Dis-
trict 65 and the UAW, and thus effective December 14,
1988, the internal union procedure having been properly
complied with, resulted in the establishment of Local
2286, UAW to represent the employees in the appro-
priate unit herein.
All entities mentioned in this paragraph represent
and warrant that the internal union procedures were
fully complied with and agree to hold harmless the em-
ployer for any act or conduct engaged in by the em-
ployer, as a result of the recognition of the change from
District 65, UAW to Local 2286, UAW.
All parties herein agree that the change in the name
of the employer and the change in the name of the
labor organization, as expressed herein, will reflected
by amendment of the parties, in any further proceedings
in the pending Board cases, and the changes to which
this Stipulation refer to will not be raised as a defense
by any of them to preclude any further processing.
This quoted material was initialed in the margin by the sign-
ing representatives of the Company, Local 2286 (by Presi-
dent Cancel), and by District 65.
After signing the stipulation, the Respondent dealt with
Local 2286 as the bargaining representative of its unit em-
ployees. Once the Union received its local number from the
UAW, Respondent began remitting dues to Local 2286 on a
regular basis and Respondent also met with representatives
of Local 2286 to handle grievances and arbitrations.
Union President Cancel, a principal participant in these
earlier events, resigned from the Company on October 10,
and also resigned from Local 2286. For purposes of these
proceedings he has effectively disappeared. He could not be
located by the General Counsel and he was not presented as
a witness by any party.
On October 23, 1989, employee Jorge Otero Camacho
filed a decertification petition in Case 24–RD–213. The peti-
tion was signed by a majority of bargaining unit employees.
Victor Osuna, who became Respondent’s personnel man-
ager in June 1989, testified that Enrique Rivera and Julio
Roman came to him in mid-December 1989 (about 2 months
after Osuna had negotiated a resignation agreement with
Cancel), and gave him information about Cancel to the effect
that Cancel had effected the change from District 65 to the
new local without consulting anyone. By this time, Enrique
Rivera was a supervisor but he previously had been active
in the Union and had signed the April 6, 1987 change in af-
filiation letter to union region 9A as a member of the union
committee.
Osuna testified he then called the company attorneys who
prepared a questionnaire and instructed him to interview em-
ployees who had been mentioned by Roman. The selected
employees were told the interview was voluntary and their
would be no reprisals. Questions included whether they re-
ceived any notice of meetings to discuss or decide on a
change from District 65 to a local and what happened. A
questionnaire filled out by Roman was placed in the record
(at the request of the court) in which he stated he had at-
tended such a meeting where the vote was by ‘‘raising your
hands.’’
No other showing was made as to the number or contents
of the other questionnaires, however, by letter of January 10,
1990, to Abigail Ortiz, Respondent’s attorney, Victor
Comolli, requested documents and information regarding the
‘‘transfer of representation rights to Local 2286.’’ The
Union’s attorney replied on January 24, 1990, and noted that
the information referred to internal union matters, called at-
tention to the stipulation between the Union and the Re-
spondent and stated no other information was necessary.
In late January 1990, Rorer employee Raul Rosa resigned
as secretary-treasurer and medical plan administrator for
Local 2286 and contemporaneously prepared and presented
Rorer with undated petition sheets signed by most Rorer bar-
gaining unit employees which requested that they be put on
the company medical plan because the Union had changed
the medical plan (to become effective February 1) without
the employees having had the opportunity to vote on the
change. As will be discussed subsequently, Rosa also con-
temporaneously destroyed union records and documents that
were in his custody.
By letter of February 5, 1990, from Plant General Manager
Isidro Ferrer to Ortiz, Respondent said it was withdrawing
recognition of ‘‘United Auto Workers and its Local 2286’’
because ‘‘this union is not the lawful representative of the
employees.’’ The same day Ferrer held a meeting and stated
the same information to the employees.
After its letter withdrawing recognition, Rorer ceased col-
lecting or remitting dues to the Union or making contribu-
tions to the medical plan. In addition, Rorer notified the
Union that it would not process grievances filed after Feb-
ruary 5, 1990. It admittedly has declined to bargain with ei-
ther Local 2286 or District 65 of the Union since that time.
Prior to February 5, the Respondent also engaged in sev-
eral actions which are alleged to constitute denial to the
Union of use of the company cafeteria and bulletin boards
in August 1989, and denial of access to union representatives
and prohibition of leaflet distribution in November 1989.
These allegations, as well as other alleged violations of the
Act, including incidents which occurred both before and after
withdrawing of recognition are described in detail in the dis-
cussions set forth below and include an allegation that former
union official Raul Rosa, mentioned above, was involved in
an incident, in 1989, wherein Supervisor Enrique Rivera
sought to persuade him to renounce the Union.
238 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
A. Alleged Unilateral Changes Prior to Withdrawal
of Recognition
At relevant times Abigail Ortiz was an international rep-
resentative for region 9A of the Union with specific duties
servicing Local 2286. Previously, his secondary duties with
the region made him familiar with the activities of District
65 and he confirmed that during contract negotiations the
Company was made aware of the employees’ plan to convert
from District 65 to a local of the UAW.
He participated in various activities with the Respondent
throughout 1989 on behalf of Local 2286 and he credibly
confirmed the exchange of various documents to and from
various levels of the Union’s organization which resulted in
approval of the change from affiliation with District 65 to the
issuance of a Local 2286 charter. He also gave credible testi-
mony of his observations of the membership meeting of No-
vember 4, 1988 (when those present voted first to ratify the
contract and then to approve a change from District 65 to a
local union), as well as previous meetings where the latter
subject was discussed.
After the ratification and affiliation meeting, Ortiz asked
employees to sign new checkoff cards as the payments were
different because of the change, and because the contract had
expired on June 1 and, having had an election, Representa-
tive Ortiz felt that new checkoffs were necessary and there-
fore gave cards to Cancel, met with employees and explained
the process, and turned the cards into the Company as soon
as they were signed.
Contrary to the contention of Respondent, I find the latter
action merely was ministerial in nature and not indicative of
any relevance to the Union’s majority status, a subject spe-
cifically addressed in the Board-supervised election which
occurred 2 months previously.
Ortiz and District 65 Official Ralph Rivera testified that as
a matter of past practice union officials (who were not em-
ployees), had been allowed to visit the production or work
areas of the plant. Rivera recalled specifically that on May
13, 1988, Renee Mendiz and Steve Protulis, during a visit to
Puerto Rico from the States had visited production areas and
toured the plant. Ortiz testified that he normally would enter
the plant through the employees’ entrance, instead of through
the main entrance, and walk through the plant to the cafeteria
or to the administrative offices to meet with Respondent’s
officials, but that on November 8, Ortiz was denied permis-
sion to have a stateside UAW representative, Robert Madore,
visit the plant the next day. On this same occasion he was
not allowed to enter through the employees entrance.
When Ortiz again made this request Osuna agreed to con-
sult with his superior and said he would let Ortiz know but
he failed to do so. On November 9, when Ortiz went to a
meeting at Rorer’s office with Osuna, Production Manager
Velazquez, and others regarding the medical plan, Ortiz was
not allowed to enter through the workers’ entrance as he had
before and was told to go and register through the visitors’
entrance and was then escorted to the meeting room. A
phone call was made and, in the presence of Ortiz, Velaz-
quez confirmed to another international representative that
they would not permit outsiders to have a tour. After it was
argued that Madore was a union official and not a stranger,
Velazquez consulted with ‘‘a superior’’ and then affirmed his
denial.
As Ortiz was leaving, employee Hilda Rolon, a union del-
egate, was nearby in the cafeteria and signaled to Ortiz, how-
ever, both Osuna and Velazquez stood up, and prevented him
from going to Rolon.
Article XI, of the collective-bargaining agreement provides
under section 5, union visits:
The company will permit an authorized union rep-
resentative (who does not have to be an employee of
the Company) to enter the plant after having given no-
tice to the Personnel Office and should the same be
(not) authorized, the reasons or motives will be offered.
Osuna testified that since he arrived in June 1989, the pol-
icy was that no person who is not an employee could come
into the production areas, a policy that he said was estab-
lished by Manager Velazquez when he arrived at the plant
in February 1989 and that in June 1989 he (Osuna) estab-
lished rules on visitors being escorted through the reception
area for security reasons. Here, I find Osuna’s testimony to
be inconsistent with his and Velazquez’ actions on Novem-
ber 9 whereby each initially consulted with ‘‘superiors’’ be-
fore making a firm decision and I do not credit the testimony
that a policy in this area had been established prior to No-
vember 9. Moreover, the ‘‘policy’’ applies to a subject cov-
ered in the collective-bargaining agreement and no notice (or
bargaining) or the implementation of changes in policy was
given to the Union.
On November 14, between the change from first to second
shift, Ortiz began to hand out union leaflets near an entrance
by the guardhouse but he was instructed to stop by Jorge
Riquelme, the chief of Respondent’s security guards. Osuna
confirmed this order on the guardhouse phone and told Ortiz
that if he did not go outside the company premises the guard
would take him out. Ortiz told Osuna he would go to the
Board and then went outside the premises and distributed ad-
ditional leaflets. Both Ralph Rivera and Ortiz testified that
in the past he had been allowed to distribute leaflets inside
Rorer’s premises, both at the cafeteria and at the guardhouse
area inside Rorer’s gates closest to the building and the park-
ing lot.
Osuna again testified that it was ‘‘policy’’ (no establish-
ment date was provided) that nonemployees could only dis-
tribute material outside company premises. No disruptive ac-
tions by union personnel took place on either occasion and,
as noted, neither policy was communicated to the Union or
bargained about prior to their enforcement on November 9
and 14.
Under these circumstances, I find that the access sought by
union officials was consistent with contractual provisions and
was within the scope of Respondent’s past practices. The
right of access includes access sought for purposes of intro-
ducing a union official, Herk’s Inc., 293 NLRB 111, 117
(1989), and the term ‘‘access includes the right to peacefully
communicate by distributing leaflets to employees. Here, Re-
spondent’s implementation of a new ‘‘policy’’ in each in-
stance shows a departure from past practice and a unilateral
change in contractual granted rights and I find that it violates
Section 8(a)(5) of the Act, as alleged in the complaint (para-
graphs 9(i), (j), (k), (l), and (n)), see Parkview Furniture
Mfg. Co., 284 NLRB 947 fn. 2 (1987), and cases cited there-
in. These actions by high level company officials, each new
239R.P.C. INC.
to the plant since the negotiation of the collective-bargaining
agreement, occurred after the stipulated recognition of Local
2286 and after apparent changes in Respondent’s manage-
ment structure. The change in Respondent’s attitude evidence
by these actions as well as the attitude shown by its partici-
pation in other violations of the Act discussed below, clearly
must be taken into consideration in evaluating its sudden de-
cision to withdraw recognition.
B. Withdrawal of Recognition
Section 8(d) of the Act provides that when a collective-
bargaining contract is in effect, ‘‘the duty to bargain collec-
tively shall also mean that no party to such contract shall
[unilaterally] terminate or modify such contract.’’ The record
shows that the Respondent and the Union mutually accepted
a 3-year contract effective November 14, 1988, as final and
binding. The Respondent was made aware of a pending
change in form of the unit representative from District 65 of
the Union to a proposed Local of the same International
Union during negotiations and on April 27, 1989, after dis-
cussion and investigation it entered into a stipulative regard-
ing this recognition change of the ‘‘correct entity’’ to reflect
‘‘Local 2286’’ as well as a documented change in the form
of its own corporate identity, and it stipulated that ‘‘internal
union procedures were fully complied with.’’ Respondent
continued to recognize and deal with the Union as Local
2286 through February 5, 1990, when it unilaterally with-
drew recognition of any Union, either Local 2286 or District
65, even though the terms of the contract extended through
November 13, 1991.
Respondent’s contention that it is justified in its actions is
based on its alleged receipt of information in December 1989
that the affiliation had been without consulting the member-
ship and was executed by a vote by a show of hands. This
‘‘information’’ was supplemented by its receipt of a petition
of 178 signatures expressing dissatisfaction with the union
medical plan that also requested coverage under a company-
administered medical plan.
The recognition stipulation was dated April 27, 1989, well
beyond the 6-month 10(b) consideration relative to the Feb-
ruary 5, 1990 withdrawal of recognition. Although the Re-
spondent claims it only learned of deficiencies in the affili-
ation process in December 1989, when it got such informa-
tion from Enrique Rivera and Roman, Rivera had been an
employee-member of the committee which first sought cre-
ation of a local union and then later a member of the so-
called ‘‘Little Group’’ which sought to decertify the Union
and then had become a statutory supervisor on March 10,
1989, prior to the stipulation regarding recognition.
In his testimony, Rivera asserts that no vote was taken by
the membership on the change in affiliation; however, be-
cause of his earlier personal involvement he clearly knew
Cancel did not act alone and a statement to this effect to Re-
spondent clearly would have been false. As maintained by
the General Counsel, however, this alleged ‘‘information’’
regarding any defect in union procedures in changing to a
local is information shown to have been held by one of its
supervisors and agents and must be imputed to be known to
the Respondent, within the 10(b) period.
For this, and the additional considerations discussed
below, I find that Respondent is estopped from contesting the
statutes of Local 2286 as successor to District 65 of the
Union. See Control Services, 303 NLRB 481 fn. 8 (1991),
and cases cited therein, including Sewell-Allen Big Star, 294
NLRB 312, 313 (1989).
I also find that Respondent is not shown to have had any
objective basis for a valid belief that Local 2286 was not a
proper successor to District 65 or that the Union no longer
had the majority support within the bargaining unit when it
unilaterally withdrew recognition.
Turning first to majority support, it is clear that Respond-
ent’s managers claim a reliance on the employee petitions it
was given in January 1990. These petitions specifically ad-
dress the medical plan, not union membership, and cannot be
elevated to rejection of the Union in all its varied other as-
pects. Significantly, I find other aspects of these petitions in-
dicate that they are of suspicious validity.
The petitions were prepared and presented to the Respond-
ent by employee Raul Rosa who, in fact, had been the prin-
cipal union official involved with the union medical plan
until shortly before his apparent switch in sympathies and
resignation from the Union. As discussed in part ‘‘G,’’
below, Rosa was involved as the target of a management ef-
fort to change his union sympathies. This occurred in late
1989 and coincided with circumstances of interunion discord
which centered about the medical plan. In light of these oc-
currences, I find that both Respondent witnesses E. Rivera
and Rosa presented testimony in several crucial areas that
must be found to be essentially unbelievable within the over-
all context of the record and the events which are shown to
have occurred.
As noted, a decertification election was won by the Union
on September 7, 1988, and thereafter a second valid decerti-
fication petition was filed on October 23, 1989, and is pend-
ing. It is well established that even the filing of a decertifica-
tion does not afford the Respondent any basis for repudiating
its contract. Dresser Industries, 264 NLRB 1088, 1089
(1982), and, as stated in VM Industries, 291 NLRB 5, 7
(1988):
In short an employer may not unilaterally modify or
cancel a collective bargaining agreement on the ground
that, during its pendency, the question of future em-
ployee representation is about to be decided through the
medium of the machinery established by the Act to re-
solve such questions. Unless and until the incumbent
union is supplanted by a rival union, the existing con-
tract governs the employer’s relations with its employ-
ees.
Here, the Respondent specifically disregarded the earlier
election and the then pending procedures of the Board and
seized on a fragment of ‘‘information’’ regarding suspected
affiliation inrregularities in the change of the unit from Dis-
trict 65 to Local 2286. It did not chose to fully investigate
the matter but instead selected a small number of employees,
apparently all identified as persons who could substantiate
the irregularities, and made no apparent attempt to interview
other employees or union officers. Moreover, the further in-
formation obtained was in part from a principal source of the
initial information and it refuted managements’ and Enrique
Rivera’s broad claim that President Cancel had made the
changes on his own without consulting the membership inas-
much as the answers disclosed that meetings and discussions
240 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The exception is Julio Roman, who belatedly filed a charge on
January 16, 1990, in Case 24–CB–1527 (shortly before Respondent
withdrew recognition), a charge that was literally the same as a
charge filed by Respondent in Case 24–CB–1524. Roman’s charge
was dismissed and his appeal was denied.
on the subject actually were held and assertedly voted on
‘‘by a show of hands.’’ Based on this sketchy information
(and its reading of a copy of the International Union’s con-
stitution), the Respondent made an immediate decision to
seize on the opportunity presented, to repudiate its stipula-
tion, and to withdraw recognition of the Union.
On brief, the Respondent acknowledges that the UAW’s
constitution contains no separate procedures specifically gov-
erning the transfer of affiliation from one union local to an-
other, and I find that any evaluation of the validity of such
a transfer as it affects the status of a collective-bargaining
representative otherwise must be based on the basic concepts
of ‘‘substantial continuity’’ between the pre- and
postaffiliated union and an adequate ‘‘due process’’ safe-
guard for an opportunity for the members to discuss and vote
on the change in affiliation, see F. W. Woolworth Co., 305
NLRB 775 (1991), and cases cited therein.
Here, there is no serious question of substantial continuity
as the ‘‘change’’ actually involves a change in name and
placement within the larger framework of the same Union
but retains the overall continuity of the unit of employees
and merely created a more autonomous local body, Local
2286, within the continued existence of the International
Union. At the time of the change local officials and practices
remained essentially the same, members were the same and
had the same privileges, and the effect of the change was a
purely internal matter which gave more rather than less au-
tonomy and administrative control to the local employees
and union officers in the unit covered by the controlling col-
lective-bargaining agreement, compare the Woolworth case,
supra.
Turning to the due-process safeguards, it is clear that the
majority of so-called facts said by the Respondent to support
its action were matters alleged in testimony at the hearing or
contained in documents supoenaed from the records of the
Union. This ‘‘information’’ was not shown to have been
within its knowledge at the time it made and acted on its de-
cision to withdraw recognition of the Union and such infor-
mation could not have played any part in Respondent’s as-
serted justification for its action on February 5, 1990.
Although the Respondent makes the after-the-fact claim
that the change from District 65 to Local 2286 (of the same
Union) is tainted by nonconformance with the Union’s by-
laws, Respondent’s position depends on the occurrence of
certain events that can be viewed as indicative of duplicity
on the part of management and the several union dissidents
on which they purport to rely. The record otherwise hints at
a pattern of intrigue on the part of the Respondent. Of par-
ticular interest is the showing that Personnel Manager Osuna
and former Union President Cancel each signed a resignation
stipulation under which Cancel was paid over $18,000 as
special severance pay to settle a grievance (involving a 10-
day suspension). Osuma said this was done only because the
Company wished to help him on a personal problem (uniden-
tified) that he had presented to them. Then, after Cancel’s
October 10, 1989 voluntary resignation from the Union, Can-
cel suddenly moved from his home without disclosing any
forwarding address and he could not be located for service
of a subpoena.
A short while later Raul Rosa (who was referred to the
Company by Cancel when he left as the designated spokes-
man for the Union), suddenly abandoned the Union and the
medical plan he was administering for the Union and imme-
diately surfaced as the organizer of a petition drive against
the union medical plan and for the company plan.
A ‘‘paper trail’’ of documents relating to the change in af-
filiation were introduced as exhibits. They show a series of
communications between local officers (which included sig-
natures of committee members and petition signers) which
clearly demonstrate that President Cancel was not operating
on his own, as alleged by Respondent. The documents also
show that the hierarchy of the Union evaluated and gave in-
ternal approval to the granting of a local charter. The record
also shows that the subject was discussed extensively at local
meetings. Some conflicts do exist regarding the nature of the
notice for a vote on affiliation and the Respondent also
makes much of the fact that the Union’s files contained an
envelope with numerous apparent ballots that were marked
‘‘yes’’ in a handwriting that Respondent’s expert witness
concluded was that of one person. Otherwise, however, their
is no showing that these were ballots for an affiliation elec-
tion nor is their any record of their custody.
As noted above, former Union President Cancel has effec-
tively disappeared along with some records and his knowl-
edge of the whole affair. In a similar vein, Rosa admitted
that he burned or otherwise disposed of other union docu-
ments and records when he left the Union.
Despite some confusion in the minds of some witnesses
regarding the nature of the vote, I find that the predominant
credible testimony reveals that a confirmation vote on the
creation of the local union was taken contemporaneously
with the ratification of the new collective-bargaining agree-
ment. I also find that the purported fraudulent nature of the
unidentified paper ballots is a little more than a ‘‘red her-
ring’’ that otherwise fails to persuasively show that the em-
ployees did not exercise a free vote on the affiliation matter.
Julio Roman, Respondent’s own witness, agrees that a
vote on the local affiliation was taken but asserts that it was
by a show of hands (in which case there would be no rel-
evant paper ballots). Other witnesses assert that an attend-
ance list was checked off (a list was placed in evidence), and
voting was done after the vote on the contract by writing on
torn sheets of paper at tables and then placed them in a bal-
lot box and counted in front of everyone (with a vote of 31
in favor and none against). I find that the more credible testi-
mony shows paper ballots were cast. In any event, I find that
a vote by a show of hands in a situation such as this where
their appeared to be no major opposition to a previously dis-
cussed proposal which involved essentially a change in form
rather than substance (where the result would be a gain of
some greater local autonomy rather than any transfer of pow-
ers to outsiders), would not be so outside due-process consid-
eration as to require invalidation of the result. No employee2
nor higher union official objected to the election or its proce-
dures and nothing was called into question until over a year
after the election when the Respondent, rather than any em-
ployee, suddenly raised a challenge through its use of this ra-
tionalization for its unilateral withdrawal of recognition.
241R.P.C. INC.
Under these circumstances, I find that the apparent desires
of the membership of Local 2286 as approved by District 65
and the national convention of the International Union should
be honored, see America Maitus, 231 NLRB 1194 (1977). I
find that this result cannot be unilaterally disregarded by a
contracting party unless and until the majority of the mem-
bership clearly, objectively, and unequivocally demonstrate
that they no longer desire to be represented in a collective-
bargaining relationship by that specific union entity. See
Phoenix Pipe & Tube, 302 NLRB 122 (1991), enfd. mem.
955 F.2d 852 (3d Cir. 1991).
Finally, even if due-process considerations were so serious
as to render void the affiliation election, this action would
not dissolve the preexisting labor organization (District 65),
or its collective-bargaining agreement within the employer.
Contrary to Respondent’s argument and regardless of wheth-
er it still has a separate office on the island, District 65 is
still a viable part of the International Union and is shown to
represent units at other businesses in Puerto Rico and there-
fore Respondent was bound to recognize this entity if Local
2286 was not a valid successor.
Under all the above circumstance, I conclude that Local
2286 is the lawful successor entity to District 65, United
Automobile Workers Union, AFL–CIO and I find that Re-
spondent is shown to be estopped from challenging that sta-
tus. I further find that the Respondent otherwise has not
shown any valid basis that would justify a refusal to recog-
nize Local 2286 as its employees’ collective-bargaining rep-
resentative and I conclude that Respondent did not have a
lawful or valid basis to withdraw recognition from the
Union. Accordingly, its admitted refusal to recognize and
bargain with the Union since February 5, 1990, is a violation
of Section 8(a)(1) and (5) of the Act, as alleged.
C. Alleged Unilateral Changes After Withdrawal
of Recognition
The collective-bargaining agreement provides that the
Union be permitted to post notices relating to official union
business (including union meetings, elections, and social ac-
tivities) by submitting a copy to the personnel department
and, prior to August 1989, posting of such notices had been
routinely approved and the employees regularly had used the
employee cafeteria for union meetings.
On August 20, 1989, Raul Rosa and Samuel Cancel re-
quested permission from Personnel Manager Osuna to use
the cafeteria for a union meeting on August 23, but they
were denied permission without being given a reason. Ap-
proximately 2 weeks later, the Union again requested the use
of the cafeteria for a meeting with new employees to provide
information about the medical plan administered by the
Union and to enroll them in it. Respondent denied the re-
quest because there was now a second shift and the cafeteria
was used for food service.
Ortiz then asked permission to hold the meeting at an open
area in the patio but Osuna said it would interrupt the arrival
of the second shift. When Ortiz argues that they would have
already arrived, Osuna said that Respondent’s policy from
then on was not to lend its facilities to the Union.
In the fall 1989, the Union requested permission to post
a leaflet on the bulletin board regarding the medical plan and
how to obtain benefits. Attempts by the Union to explain
why they needed to take these actions in furtherance with
union business were answered by Osuna with a statement
that it was ‘‘not his problem.’’ This request also was denied
and Rosa filed a grievance on the matter. Here, I do not
credit Osuna’s claim that the subject of the request was a
multipage section of the insurance policy with an error re-
garding the number of days for probation. His testimony in
this respect was evasive and inconsistent with the fact that
the bulletin board has a glass cover which only allows the
viewing of the top page and I find his asserted justification
for Respondent’s action is pretextual.
Here, the record shows that both Respondent’s past prac-
tices and the contract permitted the Union’s attempted ac-
tions discussed above. After Osuna became personnel man-
ager, however, he unilaterally and without notice to or bar-
gaining with the Union, made changes which had the effect
of prevailing or hindering the Union’s ability to commu-
nicate readily and effectively at the plant with its members.
These actions had the effect of undermining the Union and
I find that Respondent is shown to have violated Section
8(a)(1) and (5) of the Act, as alleged in paragraphs 9(g), (h),
and 11 of the complaint.
D. Alleged Refusal to Provide Information
Representative Ortiz testified that at a meeting held on No-
vember 9, 1989, he requested a list containing the names and
addresses of new employees from Respondent. This informa-
tion was necessary for the Union to communicate with new
employees regarding the medical plan, to enroll them, and to
prepare their medical cards. Addresses were needed because
Respondent had refused to allow the Union to talk to these
employees at their worksite or to meet with them in the cafe-
teria either during or after working time. The information
was not supplied to Ortiz but Osuna testified that he subse-
quently gave a list of names with dates of hire and depart-
ment names (but no addresses), to the then acting president
of Local 2286, Rogelio Cubano. Ortiz, however, did not re-
ceive copy list despite a specific request to Osuna. As bar-
gaining representative, the Union was entitled to all the in-
formation requested, information that clearly is shown to be
relevant, see Massillon Community Hospital, 282 NLRB 675,
682 (1987), and Laminates Unlimited, 292 NLRB 595, 601
(1989).
By letter of September 6, 1990, the Union also requested
information relevant to the processing of a grievance about
the amount of the Christmas bonus paid to certain employ-
ees, as well as information to monitor Respondent’s compli-
ance with the contracts provisions regarding the payment of
a Christmas bonus. By letter of September 24 Respondent re-
fused (because of Respondent’s withdrawal of recognition
from the Union).
As concluded above, Respondent has not established any
valid basis for withdrawing recognition. Accordingly, its ad-
mitted refusal to furnish the requested information constitutes
a failure to bargain in good faith in violation of Section
8(a)(1) and (5) of the Act, as alleged.
On February 5, 1990, Respondent’s general manager
Ferrer addressed a meeting of employees at a discotheque
near the plant, said the Company was withdrawing recogni-
tion from the Union, and also said that it had made a unilat-
eral decision that unit employees would get a 30-cent general
wage increase and the same or better benefits than existing
ones, including: a new savings plan whereby employees
242 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 This information is reflected on the original timecard. As noted
by the General Counsel, in response to a subpoena Respondent origi-
nally provided a photocopy of the timecards, from which it ap-
peared, in handwriting, that with Respondent’s testimony that they
were gone within their one-half hour lunchbreak. However, a blowup
of Santos’ original card shows an alteration and the machine
punched hour of 11:09 a.m. under the handwritten ‘‘11:47 a.m.’’
placing Santos’ out of the plant for 1 hour, not 15 minutes as al-
leged. Santos was not paid for the one-half hour that exceeded her
one-half hour lunch period, therefore Respondent’s payroll depart-
ment computed her time away from work as being from 11:09 to
12:09, and the alteration was made after payroll department process-
ing and prior to Respondent’s response to the General Counsel’s
subpoena.
could save up to 10 percent of wages and the Respondent
would match 50 percent of the employees’ savings (up to 6
percent of the amount saved); a new life insurance and pen-
sion plan; a new medical plan; a new short term and new
long-term disability plan; a new educational assistance or re-
imbursement plan; a higher Christmas bonus; yearly apprais-
als and wage revisions; and an in-house grievance procedure
whereby employees could discuss grievances with their im-
mediate supervisors. Ferrer also announced a $125 bonus to
be given that Friday, in order to encourage employees to feel
integrated to ‘‘the Rorer family.’’
Respondent admits making these changes (with the excep-
tion of the Christmas bonus and the grievance procedure).
Ferrer also announced that there would be no regular work
the next day but that employees were to report at 9 a.m. to
the same discotheque, for more detailed orientation on the
new benefits and for a celebration luncheon of Respondent’s
new nonunion status with the nonunit employees. Thereafter,
Respondent stopped remitting union dues and contributions
to the medical plan, and declined to process any grievances
filed after February 5.
Although Respondent denied instituting a changed Christ-
mas bonus and internal company grievance procedure, the
employees were told they would receive the higher 6-percent
Christmas bonus given yearly to the nonunit employees, in-
stead of the lower amount provided for in the contract.
Thereafter, in December, the employees did receive the high-
er or additional bonus. Also, copies of a new grievance pro-
cedure were distributed to unit employees in March 1990,
and the Company refused to discuss any new grievance with
union representatives after February.
Respondent also denied granting its employees the day off
‘‘on or about February 5, 1990,’’ and providing them with
a company sponsored party that same day. Here, it is clear
the date can be corrected to specifically reflect February 6,
1990, a date recognizable as ‘‘about February 5.’’ On this
date employees reported to the orientation 2 hours after the
normal shift time. They began lunch 2 hours later, were not
required to go to the plant after lunch, but could stay for a
party or go home, and were paid for the entire day.
It also is stipulated that Respondent thereafter eliminating
January 21, 1991 (a paid holiday, under the contract), and in-
stead made May 27, 1991, a paid holiday; an action that was
done without prior notice to or bargaining with the Union.
These above-described statements and actions occurred in
the context of Respondent’s illegal withdrawal of recognition
from the Union and, under the overall circumstance, support
an inference that Respondent intended to undermine any re-
maining or residual support for the Union. In the absence of
any valid justification for withdrawal of recognition it is
clear that this conduct demonstrates Respondent’s participa-
tion in unilateral changes inconsistent with its existing col-
lective-bargaining agreement and further shows a resulting
failure and refusal to bargain collectively, all in violation of
Section 8(a)(1) and (5) of the Act, as alleged in paragraph
9 of the complaint.
E. Alleged Unlawful Assistance
On August 3, Raul Rosa, Jose Olivero, Julio Roman,
Edwin Roure, Luz D. Santos, and Georgie Otero (persons
generally identified as being in the ‘‘little group’’ considered
by others to be antiunion in their sympathies), left Rorer’s
plant around 11 a.m. and went to a nearby local newspaper’s
office, wherein they were photographed and interviewed by
a newspaperwoman. Only Santos punched out and back in
when she left the plant and returned. A company rule re-
quires employees to punch out and in whenever they leave
or enter the plant and, as discussed below, this rule pre-
viously had been enforced against union supporter Rolon.
However, no disciplinary action was taken against these em-
ployees either at the time of the violation nor thereafter,
when Personnel Manager Osuna personally learned of the de-
tails. Osuna admitted that he was told by Otero, Olivero, and
Rosa that the purpose of the visit to the newspaper was to
contradict published statements made by Union President
Velez in favor of the Union and against Rorer’s conduct. The
employees’ timecards (except Santos) reflect that they were
paid as if they had only taken their regular one-half hour
lunch period.
Osuna admitted that he did not investigate whether the
employees had overstayed their one-half hour lunch period.
Otherwise, the record shows that they went by car and that
the trip would have entailed a change of uniform, a walk to
the parking lot, and a drive to the gate where a security
guard would stop them to write down their names and the
time, and then open the gates for them to leave. The same
procedure would be repeated on returning to work, as well
as driving to the newspaper through at least one traffic light,
parking, and time with the reporter (who admittedly was not
there when they first arrived). Although the regular records
kept by the security guard would have reflected when their
car left and returned, these records were not offered by the
Respondent. Santos’ timecard, however, shows that she
punched out at 11:09 a.m. and punched in at her return at
12:09 p.m.3
Under these circumstances, I conclude that the General
Counsel has shown that Respondent permitted antiunion em-
ployees to violate company rules concerning punching in and
out of the plant and paid some of them for the apparent one-
half hour of on the clock time when they actually were away
from the plant while it had earlier enforced this rule against
a union steward even though her offense had been under
clearly mitigating circumstances. These actions by Respond-
ent discriminate against prounion employees and thereby
interfere with the employees’ exercise of their statutory right
and, accordingly, I find that the General Counsel has shown
a violation of Section 8(a)(1) of the Act, as alleged in para-
graph 5(b) of the complaint, see Ducane Heating Corp., 254
NLRB 112, 118 (1981).
243R.P.C. INC.
F. Alleged Discrimination Involving Ines Velez Ramos
Ines Velez Ramos became acting president of Local 2286
in December 1989. Previously, she had been union secretary
to the last collective-bargaining agreement negotiation com-
mittee and records secretary of Local 2286.
During the week of July 19, 1990, Velez participated in
a demonstration outside the plant to protest Respondent’s
earlier withdrawal of recognition. Picketing was carried on
by some of the Company’s employees with the support of
the L.A.C.L.A. (a labor council for the advancement of Latin
Americans), which was holding a convention in San Juan at
that time. Before the group picketing started, Velez walked
outside the plant with a picket sign which accused Manager
Isidro Ferrer of being antiunion. Velez testified that she was
seen by several administrative employees, including Myriam
Tosado from human resources, and Gladys Malave, Victor
Osuna’s secretary. An editorial article about the demonstra-
tion was published on July 26, 1990, by a local newspaper,
which cited ‘‘Ramos’’ (Velez’ second surname) as president
of Local 2286, and said that she held Rorer’s management
accountable and that they were being threatened because they
stood up to Respondent and defended the worker’s rights.
On August 2, shortly after the article appeared Velez was
given a written warning dated August 1 for her absences and
tardiness. The warning letter by Packaging Supervisor Luis
Melendez noted 37 specific dates in 1990 where she had
been late or absent and separately listed each day between
June 4 and 22 (when she had been out on excused disabil-
ity), and noted that he had spoken to her about correcting her
problems on June 27 and that she was thereafter late four
times and absent three times. (The list, however, only shows
two 15-minute entrys, two 8-hour notations, and a single 4-
3/4-hour notation for this period, not seven problems.) When
Velez asked him why separate days were listed when she had
permission to be absent and was hospitalized, he said that he
did not know, that she would have to ask Osuna. Velez also
asked Melendez for her timecards so she could verify the
dates reflected in the warning, but the request was ignored.
Velez thereafter wrote to Melendez and stated that she did
not have a copy of Respondent’s rules with regards to tardi-
ness and absences and requested a copy and otherwise ex-
plained that her supervisor’s authorization had been obtained
for all absences.
Osuna testified that all absences are evaluated individually
for each employee and that Respondent does not have a fixed
policy or rule to follow and explained that having a policy
which establishes ‘‘firm guidelines would be unjust.’’ Osuna
failed to state how Velez’ absences were evaluated.
For most of her 6 years as an employee Velez has worked
on the packing lines; however, 6 to 8 months prior to the
April 1991 hearing in these proceedings she was assigned to
work in the manufacturing department inspecting damaged
products in a room by herself. The person who operated the
machine previously was sent to take Velez’ place on the
packing line. Velez testified that she never had operated the
inspection machine before nor had she previously performed
inspection work (except to the extent that it is done on the
packing line). The new work required her to lean into the
machine which made it uncomfortable because of back prob-
lems and she unsuccessfully asked her group leader for a
transfer. Her group leader asked Supervisor Gadiel Nieves
who told Velez that she would not be transferred because
they needed her at that machine. Velez also testified that her
group leader told her they had her there (in the inspection
room) so she would not be in contact with the rest of the
people in the shop and so that he could watch her.
Her predecessor at the inspection machine had worked
there for only 2 weeks before her request for a change was
approved. Also, two other employees who worked there had
done so for about a month at a time. First-Shift Supervisor
Gadiel Nieves testified that prior to Velez’ being assigned to
work in that area various persons did the work and generally
they assigned the jobs to whomever was available from an-
other area. Nieves also testified that Velez had not been
trained and was not qualified to do other work in the manu-
facturing department (such as operate machines and make
batches) and therefore was kept on inspection.
Velez had been under the care of Dr. Pablo Forestier,
Rorer’s doctor, from February 18 to March 3, 1991, for back
problems. When she reported back to work in March, she
brought a doctor’s certificate which stated that she suffered
from ‘‘acute lumbosacral muscle spasm and acute
tendonitis,’’ and it called for no hard work and to alternate
between sitting and standing. Velez brought the certificate to
the nurse who gave it to Supervisor Nieves. Nieves had
Velez start her first day back on the job from her back ail-
ment by having her sanitize the room she was working in.
Sanitizing a room consists of washing the walls and ceiling
with a sponge squeegee and mopping the floor.
In a discipline case of this nature, applicable law requires
that the General Counsel meet an initial burden of presenting
sufficient evidence to support an inference that the employ-
ee’s union or other protected, concerted activity was a moti-
vating factor in the employer’s decision to warn, transfer, or
otherwise discipline an employee. Here, the record shows
that Velez was acting president of the Union and previously
had served as secretary for the union negotiating committee.
She also notoriously engaged in picketing outside Respond-
ent’s facility in mid-July and had been named in a newspaper
article about that event. In view of the above, as amplified
by the timing of her disciplinary warning (approximately a
week after the article), and her transfer to a different job as-
signment (about a month later), I find that the General Coun-
sel has met his initial burden by presenting a prima facie
showing, sufficient to support an inference that velez’ pro-
tected union activities were a motivating factor in Respond-
ent’s decision to take these actions. Accordingly, the testi-
mony will be discussed and the record evaluated in keeping
with the criteria set forth Wright Line, 251 NLRB 1083
(1983); see NLRB v. Transportation Management Corp., 462
U.S. 393 (1983), to consider Respondent’s defense and, in
the light thereof, whether the General Counsel has carried his
overall burden.
Respondent’s principal defense is an assertation that Velez
was treated no differently than other employees. Certain
warnings were placed into the record as General Counsel’s
Exhibits 78 and 29 and Respondent’s Exhibits 23 and 24.
These exhibits show warnings regarding attendance prob-
lems, however, as pointed out by the General Counsel, most
of them are not as detailed as the one against Velez. More-
over, I find no explanation for the Respondent’s lack of re-
sponse to Velez’ questions which disputed the number and
nature of the offenses. Respondent offers no explanation as
to why absences taken with supervisory approval for such
244 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Compare the similar type statement by a ‘‘semi-supervisor’’
leadman found to be admissible hearsay in Fimco, Inc., 282 NLRB
653, 662 (1987).
things as hospitalization and recovering time should be listed
as a separate item of absenteeism for each separate day or
why such excused absenteeism should be a matter requiring
any disciplinary action. Respondent further admits that it has
no fixed policy in this area and that the employees are not
given any regular guidelines. As noted above, the written
warning itself contains unexplained internal inconsistencies
and I conclude that it was hastily prepared without an appar-
ent, valid business reason for its issuance at that particular
time. I find that the detailed warning given to Velez is not
fully comparable with occasional warnings given to others
and, in view of Respondent’s failure to persuasively explain
its policy, I find that it has not met its burden of showing
that the warning to Velez was for nondiscriminatory reasons.
Accordingly, I conclude that Respondent is shown to have
violated Section 8(a)(3) of the Act in this respect, as alleged.
In a similar vein, Respondent asserts that Velez was not
discriminated against as an inspector because other employ-
ees have been put in that position and because Velez was not
qualified to change to other positions in the operations area.
It also points out that others were required to perform clean-
ing duties and that someone was assigned to help her. Re-
spondent’s contentions, however, beg the question as to why
she was transferred from the packing department in the first
place or why she couldn’t go back to that department after
a short period as an inspector. Other employees were only
required to perform that job for short periods and otherwise
were transferred, even to other departments, as was the case
with her predecessor on the job.
Here, I credit Velez’ testimony that her group leader4 (not
Enrique Rivera directly, as alluded to by the Respondent),
said she was placed in the inspection location so that she
would not be in contact with other employees and where he
could watch her. In this connection, I find it irrelevant that
Supervisor Enrique Rivera denied having any contact with
her during this period inasmuch as the remark was commu-
nicated to Velez by her group leader. Otherwise, it appears
that once she was assigned to inspection (for no clearly valid
reason), Respondent engaged in disparate treatment by retain-
ing her in that job for a comparatively excessive time for
reasons that appear to be pretextual (no persuasive expla-
nation was offered as to why she couldn’t be trained or re-
turned to her old department), and I conclude that the highly
suspicious timing of the assignment, shortly after Velez, as
union president, publicly challenged the validity of Respond-
ent’s withdrawal of recognition, supports a conclusion that
her assignment to an isolated work station was not motivated
by a legitimate business reason but was done for the illegal
reason stated by her group leader.
This conclusion is reinforced by the showing that Re-
spondent made no effort to provide less harsh working condi-
tions when it disregarded a doctor’s certification of condi-
tions for her return to work for acute back problems, by re-
quiring her to participate in physically washing the walls and
ceiling of her room. Accordingly, I find that Respondent is
shown to have discriminatorily assigned Velez to an isolated
and more onerous work station because of her union activi-
ties in violation of Section 8(a)(1) and (3) of the Act, as al-
leged. See Fimco, Inc., supra.
G. Miscellaneous Alleged 8(a)(1) Violations
The several categories of illegal conduct discussed above
did not happen in isolation but occurred over several years
in an atmosphere where other seemingly minor alleged inci-
dents occurred. Taken together, these actions are shown to be
classic examples of conduct that interferes with or has a rea-
sonable effect or tendency to discourage the employees’ ex-
ercise of their statutory rights under Section 7 of the Act.
The violations found below have a cumulative effect which
show a corporate mindset or pattern of conduct apparently
designed to build on the failed decertification vote in Sep-
tember 1988 and designed to dispute the legitimacy of its
employees’ exercise of their statutory rights. These violations
reinforce the conclusions reached above regarding the other
conduct engaged in by the Respondent and show a pattern
of overall conduct whereby Respondent has repeatedly gone
beyond the bounds of permissible conduct and illegally inter-
fered with its employees in an apparent effort to build on a
perceived opportunity to operate without any obligation to
deal with a labor organization.
1. Paragraphs 14(c), (d), (e), and (f) of the complaint
Rosa, who testified as a witness for the Respondent, ad-
mitted on cross-examination that after the September 1988
elections Supervisor Rosario went to his work area and told
him that the employees were fools, because they would have
gotten a 65-cent raise if they had voted against the Union or
gotten rid of the Union. Rosario also told Rosa that there
was no need for a union and asked him why he was a union
leader. The supervisor then said that ‘‘they’’ had good op-
portunities and that he could help Rosa make progress and
be promoted.
Employee Edwin Arce worked in the manufacturing de-
partment for 14 years. On several occasions 3 or 4 days be-
fore the election in September 1988, William Rosario (then
his immediate supervisor), told him that if the Company won
they would get a 65-cent raise.
Carmen Lydia Marrero, who still is an employee, testified
that about a week after the election of September 1988,
Rosario, in the presence of other employees (including
Edwin Arce), stated that because the Union won Respondent
was not going to give its employees a 65-cent increase. She
also testified that Rosario was ‘‘always joking’’ and that she
didn’t understand that his remarks on the raise were made on
behalf of the Company; however, it is noted that she testified
under subpoena and, in the middle of her testimony, inter-
rupted to say that 2 years had gone by since this case began
and that she did not want to continue with it, demeanor that
indicates she wished to qualify her testimony because she
was in front of Respondent’s officials.
Witness Arce also was reluctant to testify and had gone
to Osuna, on being supoenaed, to express that he ‘‘was not
interested in the case.’’ His demeanor indicated that he was
concerned over the consequences of his appearance as a wit-
ness in these proceedings, however, when counsel for Re-
spondent asked him if he felt coerced or intimidated by
Rosario’s pre- and postelection remarks, he answered that he
245R.P.C. INC.
‘‘took it badly’’ because at that time there was the problem
that ‘‘they’’ were trying to take the Union out.
Under each of these circumstances, I find that Respond-
ent’s supervisor made comments attributable to the Respond-
ent’s which constitute a promise of benefit that has a coer-
cive, influential effect on employees’ voting intentions or
their continuation of support for the Union, and I conclude
that the General Counsel has shown a violation of Section
8(a)(1) of the Act in each instance, as alleged.
2. Paragraphs 14(g) and (h) of the complaint
Rogelio Cubano has been a packaging mechanic for 15
years. He served as shop steward and then as acting presi-
dent of Local 2286 when Cancel resigned.
Cubano testified that in November 1988, about a week
after the ratification of the contract, Respondent’s head of
personnel from the U.S. held a meeting with the engineering
personnel to present Isidro Ferrer as the new plant manager.
In Ferrer’s address to the group he stated that the truth is that
if there were no union at Rorer the employees would be bet-
ter paid.
Ferrer was not called as a witness to rebut this testimony
given by Cubano.
Jose Rodriguez worked for Rorer since January 1973 as a
material handler. On January 28, 1989, he gave a Board
agent a statement (G.C. Exh. 84). In his statement Rodriguez
avers that about 3 weeks prior to the elections Roberto
Bonilla, his immediate supervisor, ‘‘again’’ told him at his
office that ‘‘if it were not for the fact that we had a union,
we would be earning more money.’’
On January 27, 1991, Jose Rodriguez died by electrocution
and therefore was not available to testify and I find that his
statement constitutes reliable, probative evidence under Rule
804(a)(4) of the Federal Rules of Evidence. Supervisor
Bonilla also was not called by Respondent and accordingly,
in each instance I find that the Respondent is shown to have
made statements that constitute an inference with the em-
ployees’ Section 7 rights and I conclude that Respondent is
shown to have violated Section 8(a)(1) of the Act in each in-
stance, as alleged.
3. Paragraphs 14(j) and (m) of the complaint
Carmen Marrero testified that during November 1989, she
approached Supervisor Enrique Rivera, about giving her
brother a job and that Rivera told her that he could not help
her but added that if she spread propaganda against the
Union, said that she did not want to have anything to do
with the Union, and joined the ‘‘Little Group,’’ then he pos-
sibly could help her. Marrero described the ‘‘Little Group’’
as a group of employees who began the campaign against the
Union and identified Delia Santos, Gabriel Torres, Enrique
Rivera (before he became a supervisor), and Julio Roman, as
founders of the ‘‘Little Group.’’ The Respondent elicited fur-
ther testimony to the effect that Rivera was always ‘‘joking’’
but Marrero also said she ‘‘wouldn’t know what to say’’ if
Rivera was joking when he made these comments. Rivera
testified that Marrero had initiated a joke that ‘‘now—she
would join the little group,’’ however, this was not Marrero’s
only statement and otherwise it is clear that Rivera’s sugges-
tion that she speak and spread propaganda against the Union
in exchange for the securing of a job for her brother is an
offer of benefits that interferes with employee rights, regard-
less of whether or not it was clothed in a possible joke about
joining the ‘‘little group.’’ Accordingly, I find that it is
shown to be a violation of Section 8(a)(1) of the Act, as al-
leged.
In December 1990, the former unit employees received
two Christmas bonuses. Rolon testified that the bonuses were
handed out by Ferrer and that he said one was for the
amount they would received if the Union had been ‘‘in’’ and
one was trying to bring them up to the amount that the non-
unionized employees received. Osuna testified that unit em-
ployees were given a second Christmas bonus in 1990 be-
cause of excellent production for that year and agreed that
two checks were handed out to the employees: one in the
amount they would have received under the contract, and an-
other as a ‘‘gift’’ for their performance during 1990. The
amount of the second check was the difference between the
amount they would have received under the contract and 6
percent of their salary as a Christmas bonus. The record also
shows that in 1989 production volume was more than double
that of the previous year; however, there was no additional
Christmas bonus given in 1989.
Under these circumstances, it appears that Osuna’s expla-
nation for the added 1990 bonus is pretextual and that the
real reason, as indicated by Ferrer, was that former unit em-
ployees would receive the same as nonunionized employees
(as he had promised in his speech to employees when he
withdrew recognition on February 5), because the Union was
‘‘out.’’ The granting of this additional benefit also conveys
the message that employees will be rewarded for being non-
union and it interferes with employee rights in violation of
Section 8(a)(1) of the Act, as alleged.
4. Paragraph 14(i) and (k) of the complaint
Raul Rosa admits that Enrique Rivera tried to convince
him to renounce to the Union and join management and he
specifically testified that when Supervisor Gary Butney came
into a bar (to be joined shortly thereafter by Ferrer and
Osuna), and asked Rivera what was he doing there with
Rosa, Rivera said he was trying to convince Rosa to change
to management. This conversation took place a few weeks
after Rivera had told Rosa that it was easy to solve his prob-
lem with management rules (which disapproved his upcom-
ing marriage to a nonunit employee), and said that all he had
to do was to resign from his union position. Rivera also had
implied that he could help Rosa get a managerial position,
and Rosa had agreed that it sounded interesting and asked if
they could talk about it.
Rivera admits that he made the statement to Rosa at the
bar that he told Rosa in the same conversation that there was
no need for a union at the plant, and that Butney added that
Rosa was very intelligent and there was a good future in the
Company and opportunity for progress. As otherwise shown,
Rosa subsequently married, was transferred to an apparently
better job (but not to management), resigned from the Union,
and became an activist against the union medical plan he had
helped administer.
On October 1, 1990, Hilda Rolon told Osuna she would
report the matter of her suspension and demotion to the
Union (see the discussion in pt. H). Osuna allegedly asked
her if she wanted to sign a paper saying that she did not be-
long to the Union because he did not want third persons ap-
246 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pearing at the gate and much less Abigail (Ortiz). Rolon ad-
mits that Osuna also told her that she had a right to go to
the Union when she insisted that Rorer was committing an
injustice with her. Osuna and Rivera, who was present, deny
that he asked her to sign a nonunion statement and the Re-
spondent argues in brief that it is unbelievable that an experi-
enced personal manager would make such a request of an
employee. Which this might be likely in many situations, the
overall circumstances of these proceedings indicate that
Osuna or other supervisors, including Rivera (who was him-
self transformed from a union official to a production super-
visor), were participants in matters of apparent intrigue
whereby former union officials withdrew their support and
participation in union affairs and became supporters of man-
agement or, as in the case of Cancel, accepted a seemingly
large settlement for a minor grievance and then disappeared.
Accordingly, I find that Rolon’s testimony is not inherently
unbelievable and should be credited over that of Osuna. Ac-
cordingly, I find that in each of the above instances involv-
ing both Rosa and Rolon, Respondent is shown to have made
implied offers to induce them to withdraw their right to
union representation or to withdraw their support for the
Union in violation of Section 8(a)(1) of the Act, as alleged.
5. Paragraphs 9(t) and (u) of the complaint
On September 14, Respondent asked its employees to indi-
vidually sign a document authorizing Respondent to reduce
their lunch hour from 1 hour to half an hour. It did so with-
out prior notice to or bargaining with the Union and by solic-
iting its employees to sign a document waiving their right to
a 1-hour lunch period, which is a term and condition of em-
ployment, Respondent bypassed the Union and dealt directly
with its employees in violation of Section 8(a)(5) of the Act,
as alleged.
Also, in early April 1990, Osuna solicited employee
Gonez to put her request to withdraw a grievance in writing
and did not contact the Union. Section 9(a) of the Act allows
employees to meet directly with their employer to adjust a
grievance provided the Union is given the opportunity to be
present. Here, the grievance was being handled by the Union
pursuant to Respondent’s agreement to arbitrate all cases
pending arbitration as of February 5. Accordingly, Respond-
ent bypassed the Union and dealt directly with its employees
in violation of Section 8(a)(5) of the Act, as alleged.
H. Alleged Discrimination Involving Carmen
Hilda Rolon
Rolon has worked for Respondent for over 6 years. She
is accurately described in the General Counsel’s brief as a
serious lady who is shown to be highly respected by every-
one at the plant (as demonstrated by witnesses, including
management personnel) referred to her as ‘‘Dona’’ Hilda
(‘‘Dona,’’ is described as a term of respect in Spanish). In
1986, Rolon was selected as an employee of the month and
in 1990 she received a commendation and a reward for ex-
cellent production in her line. Rolon also became shop stew-
ard in the packing department and among her duties she has
processed grievances for employees.
On July 11, 1990, Packing Supervisor Melendez called
Rolon from the line to talk on the phone to her husband who
was at the gate. She was told there had been a fire involving
her mother and her sister, became upset and had to be helped
to the infirmary. Melendez was aware of her condition and
the cause and authorized her husband to come into the plant
to get her and gave her permission to go home. She then
learned her family’s possessions were lost in the fire but they
were not physically harmed and she calmed down, felt better,
and went back to the plant. She got her belongings at the in-
firmary and reported back to Melendez and her line.
Melendez confirmed that she was out for only about 1 hour,
however, the next day Melendez wrote and placed in her file
a memo describing an oral reprimand to Rolon because of
her failure to punch her timecard when she left the previous
day. Rolon, however, testified that Melendez never gave her
any verbal warnings and up to the time of the hearing she
had no idea that this warning was in her file since she be-
lieved that due to the circumstances surrounding her depar-
ture, including her leaving with Melendez’ authorization, she
had been excused from punching her card. It was shown that
on leaving the plant from the infirmary Rolon would not
have to go by the timeclock. It is also noted that despite
being involved in and aware of the circumstances of her de-
parture, Melendez made no mention of punching in or out
when she returned to the production line. The memo said she
had not complied with company rules and stated that ‘‘cir-
cumstances like this one should not be repeated’’ and it was
recorded in the usual company format use to issue warnings
to other employees.
Subsequently to the occasion of Rolon’s warning, five em-
ployees left the plant and went to the newspaper to dispute
published comments by Velez against the Company. These
employees received no discipline for leaving the plant with-
out punching their cards (one, Luz Delia Sandos did punch
her card) and were paid for a full day’s work. Two of these
employees said they understood they didn’t have to punch
out as they were excused.
On September 11, Second-Shift Supervisor Luis Melendez
met with her line employees, including Rolon. At the end of
the meeting, one employee asked Melendez if it was true that
the plant would be moved to Guayama or Guayanilla.
Melendez said that was news to him and Rolon then said
something to the effect that if the plant was moved, since he
was their supervisor, she would rent her home and they
would all move there (to Guayama or Guayanilla). Rolon
considered it to be general friendly banter between the em-
ployee and the supervisor about a subject that previously had
been raised by Manager Ferrer in an employee’s meeting in
June. At that time Ferrer had spoken about possible reloca-
tion of the plant to some other area where the Company
would have room to expand. He also had said that he would
try to acquire land in the Arecibo area, that a consultant had
recommended other locations which were far from the area
where the present employees lived, and that if the plant relo-
cated to such areas, it would mean the present employees
would have to relocate also or lose their jobs.
At 8 p.m., that same day, Supervisor Enrique Rivera called
Rolon to his office and told her that employees had told him
she had made (upsetting) comments about the factory mov-
ing to Guayama. Rolon denied making the comment, asked
if he would tell her who had made those comments, and said
she was going to get her people together to discuss this be-
cause she had not made that type of comment. Rivera agreed
she had the right to meet with her people because she was
247R.P.C. INC.
the group leader but did not identify Olga Burgos, the com-
plaining employee.
Rivera said he also decided to investigate further, spoke to
two or three employees, decided to give Rolon a warning,
and then did so.
Rolon was upset and admits that when she went to the
lockers to change around 11:40 p.m., she commented that
there were many ‘‘SOB’s’’ who like to hurt other people. Ri-
vera testified that the next day Burgos (who was not called
as a witness), told him Rolon had ‘‘insulted the employees’’
at the locker room and had asked ‘‘who were the bitches and
motherfuckers who took the gossip [to Rivera].’’
When Rolon came to work on September 14, she was es-
corted to Personnel Manager Osuna’s office. In the presence
of several other supervisors, Osuna told Rolon that Melendez
was going to ‘‘escort’’ her out of the plant because he was
going to suspend her while he conducted an investigation and
that she should report back the following Monday at 3 p.m.
Rolon requested she be spared the shame of having a super-
visor escort her out of the plant. She stated that she was a
serious person and that they could trust her to go to the line,
get her belongings and leave, which she did.
On behalf of its investigation Respondent obtained written
statements from seven employees. On Monday morning, Sep-
tember 17, Rolon received an anonymous call informing her
that there were orders at the guardhouse entrance to the ef-
fect that she would not be allowed to enter. Rolon phoned
Osuna who told her that she would have no problems enter-
ing the plant. Rolon also testified that Osuna then added a
comment that if she wanted to sign a paper stating that she
would renounce the Union, then nothing would happen.
When Rolon arrived at work the guard stopped her at the
gate and told her she could not go in until he spoke with
Osuna. After 5 to 10 minutes she was taken to the lobby
where Osuna met her and took her to his office. Rivera was
there and handed her a letter stating that she was being sus-
pended for 3 days from Friday, September 14, until Tuesday,
September 18, and that she was being demoted from group
leader to senior packer for ‘‘violating the Company’s Rules
of Conduct’’ (no specific rules were indemnified).
The improper conduct referred to in the letter was for
making false comments about the plant moving to Guayama
or Guayanilla that created an atmosphere of worries for the
employees and for using abusive language against employ-
ees.
Although the letter makes no mention of it, Respondent
also asserts that Rolon and her husband threatened another
employee on Saturday, after her initial verbal suspension, an
incident that was reported to Supervisor Rivera at his home
that same day. Rolon admitted that she had seen that em-
ployee but denied that any threat was made.
On September 27, Rolon hand delivered a letter to Rivera
in which she denied any wrongdoing and objected to her sus-
pension and demotion and further stated that she did not
know what Rules of Conduct he was referring to in his letter
and further. The letter also objected to the suspension be-
cause the Company had not followed the procedures set out
in its ‘‘Policies and Procedures’’ handed to her on April 27
by Rivera. After Rivera refused to sign for receipt of the let-
ter, Rolon arranged a meeting with Manager Ferrer who
called in Melendez, Osuna, and Production Manager Evaristo
Velazquez. Ferrer then promised Rolon he would reinves-
tigate the matter and that she should go by Osuna’s office
the following Monday for the final answer. On Monday,
Osuna told her he had made a new investigation and the re-
sult was the same. After further discussion, Osuna finally
told her that he could do nothing because there were seven
persons against her.
In addition to the 3-day suspension, Rolon was demoted
from her position as group leader to that of senior packager.
She denied that the comment and incidents had occurred as
described in the letter but indicated a willingness to accept
the suspension but not the demotion; however, Osuna said
the Company could not do anything else. Rolon testified that
when she said she would report this matter to the Union,
Osuna again asked her if she wanted to sign a paper saying
she did not belong to the Union. I credit Rolon’s testimony
regarding the circumstances and contents of her remark about
the warning letter, the plant moving, and the subsequent ex-
change of comments with other employees and supervisors
(see the discussion in pt. G,4, above).
Here, the record shows that Rolon was a union steward
(who processed grievances), during a period when the Re-
spondent was appealing the Union’s victory in the September
1988 Board election. The Respondent also had started to deal
with union matters under apparently new concepts guided by
a new plant manager, Ferrer, and new personnel director,
Osuna, and under a new overall corporate organization.
Moreover, the Respondent contemporaneously was challeng-
ing other persons involved in union activities with actions
otherwise found to be unfair labor practices as discussed
above and it was pursuing a pattern of conduct whereby it
appeared to be setting the stage for a challenge to the
Union’s majority status among its employees.
Under these circumstances, I find that the General Counsel
has presented sufficient evidence to support an inference that
the employee’s union activities were a motivating factor in
the Respondent’s decision to warn and suspend her on the
occasions discussed above.
Turning to an evaluation under the Wright Line criteria,
supra, Respondent’s defense is based on a contention that
each instance was a matter of legitimate discipline.
Rolon was selected as a group leader in May 1989 over
11 coworkers for his superior overall work qualities, shortly
before Osuna became personnel manager. However, after
Rolon exercised her duties as shop steward and filing two
grievances in August 1989, Respondent seized on a minor in-
cident of semantics and twisted her words into a matter of
making ‘‘totally false’’ statements about the plant moving
and creating an ‘‘atmosphere of uncertainty and worries
among the employees.’’ Her attempts to defend herself were
allowed to escalate and then presented as an additional viola-
tion of rules based on a purported investigation. This ‘‘inves-
tigation’’ failed to seek out Rolon’s description of events but
instead relied on seven statements of employees regarding
the locker room incident. A review of testimony and these
statements, however, shows many discrepancies and that one
witness said only five women were there, the statement by
Olga Burgos (she was not called as a witness even though
she was a principal character in the events) related only to
Rolon’s plant moving comment, only three of the statements
purportedly relied on were placed in evidence, and the state-
ments of two employees were of what another employee had
told them because they had not witnessed the incident in the
248 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6621. Interest accrued before January
1987 (the effective date of the amendment) shall be computed as in
Florida Steel Corp., 231 NLRB 651 (1977).
locker room. Despite the lack of persuasive evidence, Re-
spondent went forward with discipline and imposed both a
suspension and a demotion (for someone who had an essen-
tially superior past work history). The severity of the dis-
cipline, combined with Respondent’s apparent exaggeration
of the offense (especially the initial plant moving remark
which engendered any following incidents), suggests that its
reasons were pretextual and I find that its argument fails to
persuasively support Respondent’s claim that it had a legiti-
mate nondiscriminatory basis for its action. Accordingly, I
conclude that Respondent was motivated by Rolon’s union
activities and therefore I conclude that it is shown to have
violated Section 8(a)(1) and (3) of the Act in this respect, as
alleged.
Although paragraph 12(f) of the complaint also originally
was directed to another warning on September 21, this matter
was not persued on brief and I find no persuasive reason to
find a violation of the Act in this respect.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. District 65, U.A.W. and Local 2286, U.A.W., AFL–CIO
and International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America (UAW), AFL–
CIO are, respectively, labor organizations within the meaning
of Section 2(5) of the Act.
3. At all times material, the latter entity, Local 2286, has
been the exclusive representative for purposes of collective
bargaining in the following described unit, which is a unit
appropriate for collective bargaining within the meaning of
Section 9(b) of the Act and it is the lawful successor to Dis-
trict 65, which otherwise continues to be a labor union and
entity:
All production and maintenance and warehouse em-
ployees employed by the Company at its locations in
Manati, Puerto Rico, but excluding all other employees,
laboratory technicians, chemists, other laboratory em-
ployees, clerical employees and executives, quality con-
trol inspectors, guards and supervisors as defined in the
‘‘National Labor Relations Act.’’
4. By unilaterally withdrawing recognition on February 5,
1990, and thereafter failing and refusing to recognize and
bargain collectively with Local 2286, Respondent violated
Section 8(a)(1) and (5) of the Act.
5. By denying union representatives access to the plant,
denying union access to and use of the company cafeteria,
bulletin boards prohibiting the distribution of union literature
within company premises, and failing to process grievances,
the Respondent has violated Section 8(a)(1) and (5) of the
Act.
6. By failing and refusing to furnish the Union with cer-
tain requested information, as described in the above deci-
sion, which was and is necessary and relevant to the Union’s
performance of its functions as the exclusive bargaining
agent of the unit employees, and dealing directly with em-
ployees, Respondent has violated Section 8(a)(1) and (5) of
the Act.
7. By paying and assisting employees with antiunion sym-
pathies to campaign off premises on company time and fail-
ing to enforce applicable company rules regarding punching
out when leaving the plant, Respondent has given such em-
ployees unlawful assistance and has violated Section 8(a)(1)
of the Act.
8. By providing employees with a party and day off with
pay, by telling employees the Union isn’t needed and offer-
ing better conditions and promotions, by offering promotion
or other benefits for the employees’ withdrawal of union sup-
port and telling employees they would have received specific
raises if the Company had won a decertification election, or
that they would be better paid without a union, Respondent
has violated Section 8(a)(1) of the Act.
9. By giving disciplinary warnings to, suspending, demot-
ing, or transferring (to isolated work stations or more oner-
ous working conditions), employees Ines Velez Ramos and
Carmen Hilda Rolon because of their union activities or sup-
port, Respondent has violated Section 8(a)(1) and (3) of the
Act.
10. The Respondent otherwise is not shown to have en-
gaged in conduct violative of the Act as alleged in the com-
plaint.
REMEDY
Having found that Respondent has engaged in unfair labor
practices, it is recommended that the Respondent be ordered
to cease and desist therefrom and to take the affirmative ac-
tion described below which is designed to effectuate the poli-
cies of the Act.
With respect to the necessary affirmative action, it is rec-
ommended that Respondent be ordered to revoke the warn-
ings given to Carmen Hilda Rolon and Ines Velez Ramos;
to reinstate Rolon to her former position as group leader and
make her whole for any loss of earnings she may have suf-
fered because of the discrimination practiced against her by
payment to her a sum of money equal to that which she nor-
mally would have earned on the days suspended and from
the date of the discrimination to the date of reinstatement as
group leader in accordance with the method set forth in
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as
computed in New Horizons for the Retarded, 283 NLRB
1173 (1987);5 to reinstate Velez to her former position on the
packing line and that Respondent expunge from its files any
reference to the unlawful warnings to both Rolon and Velez
and notify them in writing that this has been done and that
evidence of this unlawful discipline will not be used as a
basis for future personnel action against them.
Having found that Respondent has refused to recognize
and bargain with Local 2286 as the exclusive representative
of the employees in the appropriate unit as described, I shall
recommend that Respondent be ordered to recognize and, on
request, bargain in good faith with Local 2286 as the exclu-
sive representative of the employees in the appropriate unit
with respect to wages, hours, benefits, and all other terms
and conditions of employment, and on request of the above
Union, retroactively restore the terms and conditions of em-
ployment that existed immediately before it withdrew rec-
249R.P.C. INC.
6 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
ognition of the Union, including wage rates and benefits that
would have been paid absent unlawful changes on and after
February 5, 1990, until it negotiates in good faith with the
Union to agreement or to impasse; this also includes the
processing of grievances. Inasmuch as the parties’ contract
had an expiration date of November 13, 1991, the term of
the bargaining obligation shall be extended to recommence
when Respondent properly recognizes the Union and extend
the number of days left on the agreement after February 5,
1990, when Respondent illegally withdrew recognition. Any
remission of wages shall be computed as prescribed in Ogle
Protection Services, 183 NLRB 682 (1970), enfd. 444 F.2d
502 (6th Cir. 1971), plus interest as prescribed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987). The Re-
spondent also shall remit all payments it owes to the em-
ployee benefit funds and reimburse its employees in the man-
ner set forth in Kraft Plumbing & Heating, 252 NLRB 891
fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981), for
any expenses resulting from the Respondent’s failure to
make these payments. Any amounts that the Respondent
must pay into the benefit funds shall be determined in the
manner set forth in Merryweather Optical Co., 240 NLRB
1213 (1979).
Because of the serious nature of the violations and Re-
spondent’s egregious misconduct demonstrates a general dis-
regard for the employees’ fundamental rights, I find it nec-
essary to issue a broad order requiring the Respondent to
cease and desist from infringing in any other manner on
rights guaranteed employees by Section 7 of the Act,
Hickmott Foods, 242 NLRB 1357 (1979).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
The Respondent, R.P.C. Inc., a Division of Rorer Pharma-
ceutical Corporation and Rhone Poulenc Rorer, Puerto Rico,
Inc., Maniti, Puerto Rico, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain in good
faith with Local 2286, U.A.W., AFL–CIO and International
Union, United Automobile, Aerospace and Agricultural Im-
plement Workers of America (UAW), AFL–CIO as the ex-
clusive bargaining agent of its employees in the following
appropriate unit:
All production, maintenance and warehouse employees
employed by the Company at its location in Manati,
Puerto Rico, but excluding all other employees, labora-
tory technicians, chemists, other laboratory employees,
clerical employees and executives, quality control in-
spectors, guards and supervisors as defined in the ‘‘Na-
tional Labor Relations Act.’’
(b) Unilaterally implementing changes in terms and condi-
tions of employment without first notifying or bargaining
with the Union.
(c) Advising unit employees that it would withdraw rec-
ognition of the Union and operate without the Union and re-
pudiating its collective-bargaining agreement with the Union
because of their union or other protected concerted activities.
(d) Issuing disciplinary warnings to or suspending or de-
moting employees or transferring employees to isolated and
more onerous work positions.
(e) Denying plant access to union representation, denying
union access to and use of the cafeteria and bulletin boards
and prohibiting the distribution of union literature within its
premises.
(f) Failing and refusing to process grievances and dealing
directly with employees.
(g) Failing and refusing to furnish the Union with re-
quested information necessary and relevant to the Union’s
performance of its function as bargaining representative.
(h) Discriminatorily assisting employees with antiunion
sympathies.
(i) Providing employees with a company party and a day
off with pay because in recognition of the Company going
nonunion.
(j) Soliciting employees to drop their support of the Union
and promising the opportunity for promotions, better working
conditions, or raises or other benefits or otherwise telling
employees that they would have received such benefits if
there was no union or if they had voted against the Union.
(k) In any other manner interfering with, restraining, or co-
ercing its employees in the exercise of rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Carmen Hilda Rolon and Ines Velez Ramos im-
mediate and full reinstatement to their former positions and
make Rolon whole for the losses she incurred as a result of
the discrimination against her in the manner specified in the
remedy section of the above decision.
(b) Expunge from its files any reference to the warnings
and suspensions of Rolon and Velez and notify them in writ-
ing that this has been done and that evidence of the unlawful
suspension and warning will not be used as a basis for future
personnel actions against them.
(c) Furnish the Union with the requested information it
previously failed to provide as described in the above deci-
sion.
(d) Recognize and, on request, bargain collectively with
the Union as the exclusive representative of the Respondent’s
employees in the above unit, with respect to the rates of pay,
wages, hours, and other terms and conditions of employment
and, if an agreement is reached, embody it in a signed agree-
ment.
(e) On request of the Union, rescind any departures from
terms and conditions of employment that existed immediately
before the Respondent’s unilateral withdrawal of recognition
on February 5, 1990, retroactively restoring preexisting terms
and conditions of employment, including wage rates and ben-
efit plans, and make the employees and all benefit funds
whole by remitting all wages and benefits that would have
been paid in the absence of the unilateral changes in the
manner specified in the remedy section of this decision.
(f) On request, allow union representatives access to the
plant, allow union representatives the use of the cafeteria or
250 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 If 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.’’
an equivalent facility for union meetings and for processing
grievances or for otherwise communicating with employees.
(g) Preserve and, on request, make available to the Board
or its agents for examination and copying, all records, re-
ports, and other documents necessary to analyze Respond-
ent’s compliance under the terms of this decision.
(h) Post at its Manati, Puerto Rico facility copies of the
attached notice marked ‘‘Appendix,’’7 in English and Span-
ish. Copies of the notice, on forms provided by the Regional
Director for Region 24, after being signed by the Respond-
ent’s authorized representative, shall be posted by Respond-
ent immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other mate-
rial.
(i) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT fail and refuse to bargain in good faith with
Local 2286, U.A.W., AFL–CIO and International Union,
United Automobile, Aerospace and Agricultural Implement
Workers of America (UAW), AFL–CIO as the exclusive bar-
gaining agent of its employees in the following appropriate
unit:
All production, maintenance and warehouse employees
employed us at our location in Manati, Puerto Rico, but
excluding all other employees, laboratory technicians,
chemists, other laboratory employees, clerical employ-
ees and executives, quality control inspectors, guards
and supervisors as defined in the ‘‘National Labor Re-
lations Act.’’
WE WILL NOT unilaterally implement changes in terms and
conditions of employment without first notifying or bargain-
ing with the Union.
WE WILL NOT advise unit employees that we would with-
draw recognition of the Union and operate without the Union
and repudiate our collective-bargaining agreement with the
Union.
WE WILL NOT issue disciplinary warnings to or suspend or
demote employees or transfer employees to isolated and
more onerous work positions because of their union or other
protected concerted activities.
WE WILL NOT deny plant access to union representation,
deny union access to and use of the cafeteria and bulletin
boards, and prohibit the distribution of union literature within
our premises.
WE WILL NOT fail and refuse to process grievances or deal
directly with employees.
WE WILL NOT fail and refuse to furnish the Union with re-
quested information necessary and relevant to the Union’s
performance of its function as bargaining representative.
WE WILL NOT discriminatorily assist employees with
antiunion sympathies.
WE WILL NOT provide employees with a company party
and a day off for antiunion reasons.
WE WILL NOT solicit employees to drop their support of
the Union and promise the opportunity for promotions, better
working conditions or raises or other benefits, or otherwise
tell employees that they would have received such benefits
if their was no union or if they had voted against the Union.
WE WILL NOT in any other manner interfere with, restrain,
or coerce our employees in the exercise of rights guaranteed
them by Section 7 of the Act.
WE WILL offer Carmen Hilda Rolon and Ines Velez
Ramos immediate and full reinstatement to their former posi-
tions and make Rolon whole for the losses she incurred as
a result of the discrimination against her with interest.
WE WILL expunge from our files any reference to the
warnings and suspension of Rolon and Velez and notify
them in writing that this has been done and that evidence of
the unlawful suspension and warning will not be used as a
basis for future personnel actions against them.
WE WILL furnish the Union with the requested information
it previously failed to provide as described in the administra-
tive law judge’s decision.
WE WILL recognize and, on request, bargain collectively
with the Union as the exclusive representative of the Re-
spondent’s employees in the above unit, with respect to the
rates of pay, wages, hours, and other terms and conditions
of employment and, if an agreement is reached, embody it
in a signed agreement.
WE WILL, on request of the Union, rescind any departures
from terms and conditions of employment that existed imme-
diately before the Respondent’s unilateral withdrawal of rec-
ognition on February 5, 1990, retroactively restoring pre-
existing terms and conditions of employment, including wage
rates and benefit plans, and make the employees and all ben-
efit funds whole by remitting all wages and benefits that
would have been paid in the absence of the unilateral
changes in the manner specified in the remedy section of this
decision.
WE WILL, on request, allow union representatives access to
the plant and allow union representatives the use of the cafe-
251R.P.C. INC.
teria or an equivalent facility for union meetings and for
processing grievances.
R.P.C. INC., A DIVISION OF RORER PHARMA-
CEUTICAL CORPORATION AND RHONE
POULENC RORER, PUERTO RICO, INC.