Saladmaster Corp.

National Labor Relations Board - Board Decisions

Feb 26, 1975

216 N.L.R.B. 769 (N.L.R.B. 1975)

SALADMASTER CORPORATION 769
Saladmaster Corporation and Sin de Puerto Rico,
Caribe y Latinoamerica, afillada a la Seafarers
International Union of North America, AFL-CIO.
Case 24-CA-3482
February 26, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On November 18, 1974, Administrative Law Judge
Ramey Donovan issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Saladmaster
Corporation, Rio Piedras, San Juan, Puerto Rico, its
officers, agents , successors , and assigns , shall take the
action set forth in the said recommended Order.
union activities . Also alleged is that on or about March 8,
1974, employees Graterole and Villegas concertedly ceased
work and went on strike and that on or about May 13,
1974, Graterole and Villegas made unconditional offers to
Respondent for reinstatement and that Respondent failed
and refused to reinstate Graterole and Villegas because
they had engaged in a strike and in other concerted
activities. The conduct of Respondent, above-described,
regarding Santiago, Baez , Flores, Irizarry, Graterole, and
Villegas is alleged to constitute violations of Section 8(a)(3)
and (1) of the Act.
Respondent, in substance, denies the foregoing com-
plaint allegations of the commission of unfair labor
practices. Respondent further avers that Santiago was
terminated for "just cause" and that, in the alternative,
Santiago was a supervisor at all relevant times. Respondent
also asserts that it had accepted on March 14, 1974, the
unconditional requests for reinstatement by Baez, Flores,
and Irizarry but, when the said employees changed their
requests to conditional requests, the latter were unaccepta-
ble to Respondent. Regarding Graterole and Villegas,
Respondent asserts that it offered their jobs to said
employees and the latter did not return and therefore "they
forfeited their right to go back" to their jobs.
At the conclusion of the General Counsel's case in which
the General Counsel's witnesses were examined and cross-
examined and in the course of which General Counsel
exhibits and Respondent exhibits were offered and
received in evidence, the Respondent moved for the
dismissal of the complaint and presented reasons and
arguments in support of the said motion. I reserved ruling
on Respondent's motion to dismiss. Respondent then
stated that it rested and presented no evidence. Respon-
dent's motion to dismiss is now hereby denied.
FINDINGS AND CONCLUSIONS
I. JURISDICTION
DECISION
RAMEY DONOVAN, Administrative Law Judge: The
charge in this case was filed by the Union on March 11,
1974, against Saladmaster Corporation, Respondent here-
in. The complaint issued under the date of May 15, 1974.
On August 8, 1974, the General Counsel issued Notice to
Amend Complaint. The case was heard in Hato Rey,
Puerto Rico, on August 14-16, 1974, inclusive.
The motion to amend the complaint pursuant to notice
as aforementioned was granted at the inception of the
hearing , after the parties had been heard thereon and over
Respondent's objection.'
As amended, the complaint alleged that on or about
March 4-6, 1974, Respondent interrogated and threatened
employees with reprisals for union activities in violation of
Section 8(a)(1) of the Act . It is further alleged that on or
about March 8 , 1974, Respondent laid off and refused to
reinstate employees Baez , Flores , and Irizarry because of
their union activities and on the same date discharged and
refused to reinstate employee Santiago because of his
I In essence, the amendment to the complaint involved a change in the
date of alleged discriminatory discharge and the addition of two alleged
Respondent, Saladmaster Corporation, is a subsidiary of
SMC Industries, Inc., a Texas corporation. SMC has its
main office in Dallas, Texas. Respondent, at all times
material, is authorized to do business in Puerto Rico, and
maintains an office and place of business in Rio Piedras,
San Juan, Puerto Rico, where it is engaged in the sale and
distribution of stainless steel kitchenware, glassware,
cutlery, chinaware, and related products.
In a representative yearly period, Respondent, in the
course of its business, caused to be transported and
delivered to its office kitchenware, glassware, cutlery,
chinaware, and other goods valued in excess of $50,000
from States of the United States other than the Common-
wealth of Puerto Rico. In the same period, Respondent's
gross volume of business exceeded $500,000.
At all times material, Respondent is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act. The Union, SIU, at all times
material, is a labor organization within the meaning of
Section 2(5) of the Act.
discnmtnatees to the four originally alleged.
216 NLRB No. 138
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE ALLEGED UNFAIR LABOR PRACTICES
In February 1974, Santiago, an employee of Respon-
dent,2 contacted Montijo, a representative of the Union.
On February 19, 1974, Montijo came to Santiago's home
and explained to him the advantages of the Union.
Santiago signed a union card on that occasion and secured
a supply of blank cards from Monti jo. The following day,
February 20, Santiago spoke to his superior, Respondent's
district manager, De Jesus . Santiago asked the latter what
he would do "if the employees were to unionize or organize
themselves in a union." Santiago testified that ". . . I let
him know that we were planning to do it or that we were
going to do it."3 Thereafter, from February 26 to March 3,
Santiago spoke to other employees of Respondent about
the advantages of a union and in that period secured six
signed cards from these employees .4 The evidence indi-
cates that the cards were signed off Respondent's premises
but, in some instances at least , in the vicinity of the
premises.5
On March 4 and 5, 1974, employees in the bargaining
unit were summoned to the office of Respondent's
manager, De Jesus .6 According to Villegas, a secretary in
the collections department, she, Irizarry, and Graterole
were present at the first meeting with De Jesus .7 Villegas
states that she was also present at the second meeting with
De Jesus in addition to employees Padilla, Baez, and
Flores .8
Based on the uncontroverted testimony of Villegas,
Irizarry, Baez, and Flores, I find that at the meetings De
Jesus indicated in so many words, inter a/ia, that he was
aware of the union movement among the employees and
he asked them, "what is this about a union movement."
Several of the employees affirmed that there was a union
movement and that they contemplated unionizing. De
Jesus stated that if the employees persisted in the union
movement, they would no longer be his friends and there
would be animosity between himself and the employees.
Although Santiago was still employed by Respondent at
the time, De Jesus, at the above meetings, informed the
employees that Santiago 's job was vacant and was
available for one of those present.
In context, I find that the aforedescribed conduct of De
Jesus constituted illegal interrogation and a threat of
reprisal in violation of Section 8(aXI) of the Acts The
asserted loss of the top supervisor 's good will and
friendship and the creation of hostility and animosity in
the supervisor vis-a -vis his subordinates as the proclaimed
consequence of the employees' union activity is indeed a
threat of reprisal and of detriment to the employees.
On Thursday, March 7, 1974, Santiago had a brief
conversation with De Jesus . Santiago asked De Jesus what
would happen "if we were to form a union within the
2 Wilfredo Santiago de Jesus , herein Santiago. The job status of Santiago
at relevant periods will be discussed fully at a later point in the Decision.
3 De Jesus did not testify.
4 Employees Baez, Irizarry, Flores, Graterole, and Villegas signed cards
between February 26 and March 4, 1974.
5 The Union filed a petition for certification with the Board on March 8,
1974. In the April 4, 1974, election in a unit of office clericals, collectors,
and warehousemen, there were 15 eligible voters. The vote was six for the
Union , six against , and two challenged ballots.
6 Jaime de Jesus Angulo , herein De Jesus, was in charge of Respondent's
Company ." De Jesus replied that this would bring an end
to his friendship and there would be animosity "between
us."
De Jesus, on Friday , March 8, 1974 , handed Santiago a
letter, dated March 7, 1974, in the Company's office. In
addition to reference to an enclosed paycheck , the letter
stated:
Pursuant to our conversation of this afternoon and
following instructions from the company, we are
notifying you that you are discharged from your
employment as of March 7, 1974.
[signed by De Jesus , division manager ]
On that same date, March 8, employees Baez , Flores,
and Irizarry received letters of indefinite layoff from De
Jesus . These letters were dated March 7, 1974, and read:
Following instructions received from the company and
due to an economy plan that will be established,
effective March 8, 1974, you are suspended from work
without pay until further notice.
[signed by De Jesus , division manager ]
Upon receipt of the aforementioned letters, on March 8,
1974, Santiago, Baez, Flores, and Irizarry left Respondent's
premises pursuant to their respective discharges and
layoffs. At the same time, Villegas and Graterole, having
learned of the terminations and layoffs, left the Company's
premises in sympathy with and in support of their fellow
employees and fellow union supporters.
After reporting the foregoing events to the Union, all six
of the employees referred to above, as well as members of
their families, began picketing Respondent 's premises on
March 12, 1974. They participated in this picketing for 2
months. The picketing, according to Villegas , was not
successful because the Company was able to carry on its
business with replacements and otherwise , and "because
management was doing the job [was able to carry on the
Company's business]." 10
During the picketing , Company Attorney Trujillo ap-
proached Villegas on the picket line on March 21 with a
letter and a check . Apparently the same approach was
made to Graterole since Villegas refused to sign the letter,
and said to Graterole that she should not sign such a letter
of resignation from their jobs. As far as appears , Graterole
did not sign.
On March 26, 1974, during the picketing , Respondent's
attorney Trujillo mailed Villegas a letter . The same letter,
addressed to Graterole , was also received by the latter. The
letters to Villegas and Graterole, respectively, were dated
March 26 and were signed by Trujillo.
Puerto Rico operation and was its highest ranking supervisor.
I Both Irizarry and Graterole are also office clerical employees.
9 Padilla is a secretary ; Baez and Flores are stock clerks who work in the
office and the adjacent warehouse.
6 Since it was not alleged in the complaint , I do not find that
Respondent , through De Jesus, created an impression of surveillance,
although I believe that the evidence would support such a finding.
io While picketing , the pickets carried signs with such statements as
"Don Jaime [De Jesus] discriminates unjustly"; "Fathers of families thrown
out unjustly."
SALADMASTER CORPORATION
In words and in substance , the letters stated that, on
behalf of Respondent , the addressees were informed that
on March 8 they had abandoned their secretarial jobs
"without any justified cause or reason to do so ." It was
stated that the Company desired that they return to work
"immediately" upon receipt of the letters and that failure
to do so would be considered to be a resignation from
employment and the Company would hire replacements
for their jobs . Salary checks were enclosed for the period
"up to several days after you illegally abandoned your
work ." Neither Villegas nor Graterole responded to the
letter or returned to their jobs . They continued to
participate in the picketing.
On May 13, 1974 , a telegram , signed by Irizarry, Baez,
Graterole , Villegas, Santiago, and Flores , was sent to
Respondent . The telegram stated:
WE THE UNDERSIGNED EMPLOYEES OF THIS COMPANY ARE
WILLING TO RETURN TO OUR JOBS WITHOUT ANY
CONDITION ON OUR PART.
De Jesus responded to the above telegram by identical
letters to Flores, Baez , and Irizarry , dated Friday, May 24,
1974. No response was sent to Santiago , Villegas, or
Graterole.
The May 24 letter from De Jesus stated:
You are hereby notified to report to Saladmaster Corp.
where there is now work available for you. You should
report to the undersigned who will assign your duties
and responsibilities . You should appear personally not
later than May 30, 1974. . . . Should you fail to so
appear , we shall offer the job to somebody else.
On or about Tuesday, May 28 , Flores, Baez, and Irizarry
went to Respondent 's office and spoke with De Jesus. De
Jesus offered them jobs as collectors at a salary of $200 per
month , plus commission on the collections , and mileage.
The employees asked De Jesus whether they would receive
past benefits that had accrued or were due to them as
employees . He said , no, inasmuch as they would be starting
as new employees . The employees asked De Jesus why they
were not being offered their former jobs . He replied that it
was because their jobs had been filled by others. The
meeting ended with the employees stating that they would
think over the offer made to them .11 After considering the
aforedescribed offer of De Jesus', the three employees sent
him a telegram on May 29, 1974. The message read as
follows:
11 Baez and Flores were stock clerks who worked both in the office and
in the warehouse that was attached to and that was immediately adjacent to
the office . Irizarry was a typist and general office worker . Baez' salary as
stock clerk was $510 per month; Flores' salary was $365 ; and Irizarry's
salary had been $300. The work of a collector, whose earnings above a
minimum of $200 per month would depend on the collector 's zeal and
ability in earning commissions in collecting on accounts , and whose work
would entail travel with a mileage allowance , is obviously different from the
work of a stock clerk and office worker stationed at one location, with
regular hours, and a fixed monthly salary. It is also indicated that a
collector's job would or could result in greater income to the collector than
the job of a stock clerk or typist, at least when the clerk or typist was
earning no more than $300 per month.
is Respondent 's departments or sections were : collections - under
Collection Manager Alejandro; sales - composed of persons called area
771
IN.OUR PREVIOUS TELEGRAM WHERE WE WERE ASKING
THAT WE BE UNCONDITIONALLY REINSTATED IN OUR
JOBS, WE WERE REFERRING TO OUR FORMER JOBS AND
NOT AS COLLECTORS OR TO OCCUPY OTHER POSITIONS.
No response to this telegram was received.
The status of Santiago
Santiago had been employed by Respondent since 1959.
From 1965 Santiago had held the titles of office manager
and assistant manager. He was in effect the number two
man in the organization under De Jesus and would
function in the latter's place when De Jesus was absent.12
Santiago, in the past, gave orders and directions to other
employees, excused employees absences, and exercised
supervisory functions. In 1973 Santiago's salary was $775
per month, plus a quarterly bonus of $637.
De Jesus' daughter, Mildred Ferrer, appeared in Respon-
dent's Puerto Rico office in 1971. According to Santiago,
whose testimony is not controverted on this aspect,
Mildred was not on the company payroll but was paid by
her father, Division Manager De Jesus. From 1971 on,
Mildred Ferrer functioned in the office and from Santia-
go's standpoint she was a cause of internal friction. By the
same token, Santiago's relationship status with his superi-
or, De Jesus, deteriorated. As early as 1971 Santiago began
writing letters to the Company's home office about De
Jesus.
On September 18, 1973, Santiago wrote to Flocker, the
company president in Dallas. In the letter Santiago stated
that the "situation has been happening since 2 years ago
... " and he referred to "nepotism" being practiced by De
Jesus. 13 Santiago stated in the letter that De Jesus had been
giving him "a hard time" and Santiago opined that De
Jesus was "jealous" of him. Santiago noted that when De
Jesus was absent his daughter was "approving sales
contracts" and this, in Santiago's view, could "cause
problems."
De Jesus wrote a letter to Santiago on September 19,
1973, in which he advised Santiago that he was recom-
mending that Santiago's quarterly bonus be suspended.
The reason stated for this action was that the bonus had
been conditioned on Santiago not being "involved in sales
or supervision and you broke that policy and besides that
you [are being released from other duties ].... 1114
It is fairly evident that by September 19, 1973, Santiago's
position status was on a downward slope insofar as his
superior, De Jesus, was concerned. While there is no
managers who were in charge of salesmen . Neither the area managers nor
the salesmen were employees of Respondent . Office and administrative -
composed of employees of Respondent , and including stock clerks who
were in the warehouse contiguous to the office.
13 Santiago testified that there was friction between Mildred Ferrer and
the other employees in the office and the employees brought their disquiet
to Santiago's attention . In taking up the problem with De Jesus, Santiago
asserts that he accomplished nothing as far as solving the problem.
14 Santiago's testimony, not controverted , is that for 3-5 years he had
sold company products at night through working with area managers and
their salesmen and he received checks from various area managers for his
services and assistance . Santiago states that during this period he had De
Jesus' consent to the arrangement. Although no witness of Respondent
testified regarding the matter, Respondent apparently claims that Santiago
was improperly splitting commissions.
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
indication that Santiago's tenure on the company payroll
was threatened at that point, there is clear indication that
the status he held in the organization was being dimin-
ished. In his letter of September 19, De Jesus informed
Santiago that he was being relieved of "other duties" and
that De Jesus was recommending suspension of his
quarterly bonus.15
On October 4, 1973, a memorandum under that date was
circulated in Respondent's office. The memorandum is
lengthy and detailed and sets forth the duties and
responsibilities of each employee by name. The document
is signed by De Jesus and there is no claim or evidence that
he did not write the memorandum and sign it.16
Villegas testified that Mildred Ferrer brought the
memorandum to her at her desk in the office.17 Irizarry
testified that Villegas had received two copies and gave one
to her. Baez testified that he received a copy of the
memorandum from employee Flores. The latter also
testified to having received a copy of the memorandum.
Santiago testified that on October 4 or 5, 1973, on his desk,
in an envelope addressed to him, there was a photocopy of
the memorandum.
The memorandum stated, inter alia,
Before indicating to you the manner in which we will
operate in the future, I wish to remind you that you are
all going to work directly under my supervision.18
... In my absence you have the cooperation of
Mildred [Ferrer, De Jesus' daughter] who will help you
and take care of you as if I were here.'9
The letter then contains some exhortations about punctual-
ity, courtesy to customers, and so forth. It is next stated
that De Jesus believes that it is appropriate and convenient
"to carry out the following reforms." Duties and responsi-
bilities of each individual employee are thereinafter set
forth. For instance, "Rosa Vargas will be in charge,
together with Elba and a new employee, of the payments
received by mail . . . Rosita Villegas will continue in
charge of the collectors.... Lucas [Baez] will be in
charge of dispatching orders...." 20 The last paragraph
of the memorandum, No. 10, dealt with Santiago.
13 On its face , De Jesus' reference to Santiago's being relieved of "other
duties" is not clear as to what "other duties" he was refemng to. However,
Santiago testified that the September 19 letter was the letter "in which they
relieved me of my position of Assistant to the Manager ." His duties in the
aforesaid position , according to Santiago, had been to recruit and train
salesmen "and to help in any way ... that would be beneficial to Mr. De
Jesus," the division manager.
16 De Jesus ' signature is distinctive . There is no question in my mind that
the signature on the memorandum is the same as that on De Jesus ' letter to
Santiago, September 19, 1973, G.C. Exh. 17.
17 The indication is that photocopies of the memorandum , not the
original , were distributed.
1s All emphasis herein is supplied . Since, in the past, all employees had
worked under De Jesus' supervision as division manager and top supervisor
of the Puerto Rico operation , the reorganization memorandum , in this
sentence alone , wherein all were thereafter to work "directly" under De
Jesus' supervision is indicative of the elimination of any intermediate
supervision between the employees and De Jesus . Since there were no more
than 1 S employees involved and since De Jesus and all employees worked in
close proximity in the private home converted into an office and attached
warehouse that Respondent used as its place of business , direct supervision
by De Jesus was not infeasible.
10. Wilfredo Santiago will be relieved from his job as
Office Manager and shall take care exclusively of the
following duties:
A. Preparing a list of the merchandise that is needed
and ordering the same ... .
B. Soliciting [securing or requesting?] from Finis
Amend some special cards to keep the inventory
C. He must deliver to me every Monday morning a
list of the inventory ... .
D. He shall check and pay the invoices and bills .. .
received ... .
E. [All complaints and requests for information from
customers "shall be delivered to me [De Jesus]
and I shall pass it on to Wilfredo [Santiago]."
Santiago will then answer the letters aforemen-
tioned and will help the customer].
Neither the above-described memorandum nor its
contents were ever thereafter recalled, repudiated, revoked,
modified, amended, or rescinded either orally or in
writing.21
After the issuance of the October 4, 1973, memorandum,
Santiago did not thereafter give any orders to other
employees, excuse absences, or otherwise exercise the
authority and functions of a supervisor. Employees such as
Baez and Flores, for instance, who testified as to Santiago's
prior supervision of their work, also testified that after the
issuance of the October 1973, memorandum, Santiago no
longer possessed or exercised supervisory authority. Like
other employees, Baez and Flores were familiar with the
memorandum and its contents. Various employees testified
that to their knowledge and in their eyes, Santiago ceased
to be office manager on October 4, 1973, and that
thereafter he was regarded as and performed the functions
of a clerk, without possessing or exercising any supervisory
power over other employees.
Although his duties, functions, and authority had been
materially changed as a result of the October memoran-
dum Santiago continued to occupy the same desk with the
same nameplate ,22 telephone, pencils, and so forth, as
previously. His salary and bonus remained unchanged and,
on correspondence, he signed his name with the title, office
iS In short , Ferrer would be in charge when De Jesus was absent. In the
past, as assistant manager, Santiago had fulfilled this function and had
exercised supervision . After October 4, 1973, Ferrer was in charge, gave
orders, and so forth, when De Jesus was absent.
20 The rather vague term used with respect to many employees that they
were "in charge or' this or that duty or function has no apparent
significance insofar as indicating a supervisory status. It is clear that Rosa,
Elba, "and a new employee," and Villegas and Baez , and Marcial (Flores)
whose job was to clean and keep the warehouse in order and was "in charge
of" samplers, were simply rank-and-file employees who were "in charge of
performing certain duties . However , as we shall we, when the memorandum
came to setting forth Santiago 's duties and responsibilities even the vague
terminology of being "in charge of anything was omitted and his duties
were simply set forth. Any connotation of prestige or status that the
designation of "in charge of might convey was thus avoided.
21 De Jesus had not discussed the memorandum with Santiago and, after
its receipt there was no discussion between the two regarding the
memorandum . On his part, Santiago attributed the situation to De Jesus'
attitude toward him which Santiago described as being the "cold shoulder"
by De Jesus.
22 All the office employees had desks with nameplates . Santiago's
nameplate read, Wilfredo Santiago , office manager.
SALADMASTER CORPORATION 773
manager.23
A careful consideration of the entire evidence persuades
me that after October 4, 1974, Santiago ceased to possess
or to exercise any authority or power of a supervisor and
he was not a supervisor . Santiago knew this ; the other
employees knew it ; and the division manager, the man in
charge of the Puerto Rico office, De Jesus, knew it. The
evidence reveals that De Jesus determined and effectuated
the duties, responsibilities , and the authority of all persons
employed by the Company in the Puerto Rico office and
this included Santiago . De Jesus exercised his control of
the local situation even to the extent of using his daughter,
Mildred Ferrer, who was not on the company payroll, as a
sort of ex officio personage , who, among other functions,
was placed in charge of the office in the absence of De
Jesus in the period after October 1973. This eliminated
whatever function or claim that Santiago had regarding the
title of assistant manager . As is abundantly clear from the
evidence, on October 4, 1973, De Jesus expressly relieved
Santiago from "his job as office manager" and limited
Santiago to specifically enumerated clerical duties.
Titles and symbols without the possession and exercise
of supervisory power do not constitute a person a
supervisor and the absence of a supervisory title is not
determinative if a person in fact possesses and exercises
supervisory power and functions . Moreover, upon exami-
nation of the symbols, Santiago's desk was a plain metal
desk no different from that of one of two secretaries
located in close proximity to that of Santiago . The two or
three desks aforementioned were in an open space that was
formerly the kitchen area of the private house that had
been converted into business quarters by Respondent.
Except for some plants, the area of Santiago's desk was
undivided and unseparated from other clerical desks and
there was neither wall nor door . The fact that Santiago
retained his desk nameplate is surely inconsequential in
view of the realities that occurred when De Jesus, in
writing to all employees , relieved Santiago of his office
manager position . Santiago's retention of his salary and
bonus was apparently attributable to his 15 years with the
Company; his thorough knowledge of all aspects of the
business ; his better than average education ; 24 and his
ability to speak and write bilingually . Indeed the salary of
$8,060 annually was not of baronial proportions either in
itself or when supplemented by a quarterly bonus since the
gross total was $ 10,608 annually in the inflated economy of
1974.
The fact that Santiago continued to sign business
correspondence with the title , office manager, is not a
determinative factor . As a matter of personal pride and
self-morale , even after the meat of supervisory status and
authority had been eviscerated by De Jesus, Santiago no
doubt preferred to write to customers and to the home
office with the title of office manager rather than without
23 In a February 1974 letter from Santiago to the company president in
Dallas, Santiago mentioned having proposed to De Jesus that Santiago
without "leaving my position as his assistant" would go into "the field" and
set up a sales force for Santiago's wife . Respondent's counsel introduced
this letter as evidence that Santiago was still the assistant manager and
therefore a supervisor after the October 1973 memorandum.
24 A letter in evidence refers to the fact that Santiago contemplated
taking night courses to complete work for a degree in business admimstra-
any title or with the title of "clerk" or "order clerk" or
such. Indeed, he testified that he used the title because he
had not received official notice from the home office in
Dallas that he was not office manager. This was indeed a
clutching at straws to preserve a shred of illusion from the
reality, of which Santiago was fully aware, that he was no
longer the office manager or anything else but a clerk.
As far as this record indicated, Respondent's home office
was indifferent as to whether the woman in the Puerto
Rico office, who De Jesus placed in charge of the cash box,
used or was given or was not given the designation of
"cashier" or "head cashier" or "fiscal clerk" or whatever.
Similarly, De Jesus stated that Alejandro "will be in charge
of the collections department." I note that the employee
witnesses at the hearing referred to Alejandro as the
"collections manager." He could as well have been referred
to as "collections coordinator" or "senior collections clerk"
or whatever. The record indicates that the duties and
authority exercised by employees in the Puerto Rico office
were determined by De Jesus . This is particularly true in
the case of Santiago and it is Santiago whose status
concerns us. Titles, nameplates, and so forth are not the
determinants of the question of whether or not Santiago
was a supervisor within the meaning of the Act when, in
1974, he engaged in union activity and when he was
discharged. I am satisfied that Santiago was not a
supervisor in the relevant period.
Analysis and conclusions with respect to the
alleged discrimination against employees
As previously described, De Jesus convened a meeting in
his office on March 4 and 5, 1974, with six of Respondent's
employees, Villegas, Irizarry, Baez, Flores, Graterole, and
Padilla. Villegas, apparently, was the only employee
present at both sessions . All those present were clerical
employees and worked in the office25 but not all office
clericals were present and others in the unit were also not
present. De Jesus initially stated and indicated that he was
aware of the union movement ; 26 and, in effect, he solicited
and elicited a response from those present regarding his
statement and query. Several of the employees then stated
that it was true and that they wanted to organize and were
thinking of union organization . No employee expressed
dissent to the statements of their colleagues abovemen-
tioned. De Jesus then said that if they, the employees,
continued in this course of action, i.e., unionization, they
"were his enemies . . ."; ". . . there would be animosity
between him and us." De Jesus went briefly into two other
topics. He said that Santiago was relieved of his job or that
Santiago's job was vacant and De Jesus offered the job to
anyone of the employees present at the meeting. Apparent-
ly this matter was not pursued further at the meeting by
tion . This indicates some prior work at the college level.
25 The two male employees who were present , Baez and Flores, were
stock clerks who worked both in the office and in the immediately adjacent
warehouse.
26 "... that he knew of the union movement ...."; "what is this about a
union movement?'; "... that he knew there was a labor movement in the
11office... .
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
either De Jesus or the employees . 27 De Jesus also said that
he had been looking into a medical plan for the employees
but had determined that the premiums were too high.
The next event occurred on Thursday, March 7, 1974, in
the form of a conversation between Santiago and De Jesus.
According to Santiago's uncontroverted testimony, "the
conversation commenced because I [Santiago ] asked what
would happen if we were to form a union in the
Company." De Jesus replied that , if this was done,
friendship would cease and "there would be animosity
between us."
The following day, March 8, 1974 , De Jesus discharged
Santiago and indefinitely laid off Baez , Flores, and
Irizarry. Since De Jesus did not orally inform any of the
four employees of the reasons for the foregoing actions and
since neither De Jesus nor any other representative of
Respondent testified as to the reasons for the discharge
and layoff, we are left to examine what was stated by De
Jesus in the letters he wrote , signed, and delivered.
The letter to Santiago, as well as the others , was dated
March 7, 1974. In the Santiago letter, the only explanation
for the discharge is:
Pursuant to our conversation of this afternoon and
following instructions from the company, we are
notifying you that you are discharged from your
employment as of March 7, 1974.
The conversation, "our conversation of this afternoon,"
is clearly a reference to March 7 since the letter was written
and dated on March 7. The only conversation between De
Jesus and Santiago on March 7, revealed in the instant
record, is that described by Santiago, above . The record is
clear that that conversation consisted of Santiago asking
De Jesus, what would happen "if we were to form a union
.. " and De Jesus responding that such action would
result in the cessation of friendship and the creation of
hostility and animosity "between us." A letter was then
written by De Jesus on that same day, March 7, after the
conversation and delivered to Santiago on March 8,
notifying him that he was discharged "pursuant to our
conversation of this afternoon [March 7 ]. "
Quite clearly, De Jesus knew as a result of what Santiago
had said on March 7, that Santiago 's question was not part
of a Socratic discourse in which the questionnaire was
simply posing a series of philosophical hypotheses unrelat-
ed to current realities .28 De Jesus, in his letter , did not cite
the conversation of March 7 as a reason for Santiago's
discharge because he thought that Santiago simply had an
inquiring mind that led Santiago to ask hypothetical
questions divorced from what was occurring around him.
De Jesus knew before he met with a selected group of
employees on March 4 and 5 that there was a union
movement, principally among the office employees, and he
so informed them at the meeting . Further, at the meeting,
the employees confirmed their interest in unionization to
the extent that De Jesus felt obliged to wain them of his
hostility to such activity. Therefore, on March 7, when
Santiago again asked De Jesus what would happen if we
were to form a union, it must have been apparent to De
Jesus that Santiago was involved in the union movement
and was not simply asking an academic question.29
De Jesus' letter of March 7, that he gave to Santiago on
March 8 notifying him of his discharge , stated not only
that the discharge was pursuant to their conversation of
March 7 but that it was pursuant to "instructions from the
Company." The evidentiary deficiency in this second
reason is that the record contains no "instructions from the
Company" regarding Santiago and no witness testified as
to the existence or content of such "instructions ." Nor, if
such instructions existed , do we know when and by whom
they were issued , or when received nor the reasons
expressed in the instructions.
In the March 7 letter that De Jesus gave to Irizarry,
Baez, and Flores on March 8 when they were laid off
indefinitely, he stated that the action was "following
instructions received from the Company and due to an
economy plan that will be established . . . ." The alleged
instructions from the Company regarding these three
employees are as much of a mystery in this record as are
the alleged instructions regarding Santiago , discussed
above . What I have stated regarding the alleged Santiago
"instructions" is equally applicable to alleged instructions
concerning Irizarry, Baez , and Flores.
De Jesus' letter to the latter three employees also avers
that their layoff was due "to an economy plan that will be
established ." There is no evidence of or explanation of any
economy plan that was either contemplated or established.
Moreover, Respondent did not eliminate the jobs of the
three employees who were laid off indefinitely but filled the
vacant jobs with replacements 30
A consideration of the entire evidence persuades me that
after February 20, 1974, and prior to March 4, 1974, and
on and after March 4 , 1974, De Jesus was aware that there
was a union movement among Respondent's office
employees. The evidence also convinces me that De Jesus
was aware or suspected that Santiago , Irizarry, Baez, and
Flores were involved in the union movement. Santiago had
spoken to De Jesus about the latter's reaction to a union in
the Company on two occasions , February 20 and March 7,
1974, and, in between those dates , De Jesus became aware
of and was confirmed of the fact that the employees were
involved in a union movement.
27 Santiago was working at his job on March 4, 5, 6, 7, and was notified
of his discharge and discharged on March 8 , 1974, by De Jesus.
2a Santiago engaged in much the same type of conversation with De
Jesus on February 20. By March 7 it was undoubtedly clear to De Jesus that
Santiago was not posing idle questions.
ss Santiago had also testified that on February 20, 1974, the day after he
had been visited by the union representative, Montijo, Santiago commenced
a conversation with De Jesus in which Santiago asked what would De Jesus
do "if the employees were to uniomm .... and "I [Santiago l let him know
that we were planning to do it or that we were going to do it." By March 4,
1974, De Jesus was fully aware of the union movement among the
employees. When Santiago again spoke to De Jesus on March 7 about De
Jesus' reaction to the union movement, the fact of Santiago's involvement
was virtually inescapable.
30 In May 1974 De Jesus offered Irizarry , Baez , and Flores jobs as
collectors since, he said, their former jobs had been filled . The situation
indicates not only that the job of Irizarry, Baez, and Flores had not been
eliminated but that the Company was expanding its complement inasmuch
as there is no evidence that three collectors had suddenly quit or had been
terminated prior to the time that collector 's jobs were offered to the three
laid-off employees.
SALADMASTER CORPORATION 775
Aside from Santiago's conversations with De Jesus on
the matter of unionizing among the employees, which
indicated Santiago's involvement, there were other factors
present. De Jesus was well aware of Santiago's past
leadership role as a supervisor of the office employees. This
fact, plus Santiago's relatively higher sophistication and the
esteem in which he stood among his fellow employees,
would readily lead De Jesus to know or to suspect that
Santiago had a leading role in the union movement.
As to Baez , Flores, and Irizarry, the meetings that De
Jesus held on March 4-5, 1974, confirmed that they and
the other employees were indeed interested in unioniza-
tion. Moreover, the evidence reveals that De Jesus was
aware of the union movement among the employees before
the meeting. All the employees laid off on March 8, Baez,
Flores, and Irizarry, were signers of union cards for
Santiago when the union movement first began. Baez and
Irizarry signed cards on February 26, 1974; Flores,
February 27. All these employees were closely identified
with Santiago. Baez and Flores had been directly super-
vised by Santiago when he was office manager and the
record indicates that Santiago was a benevolent supervisor
who retained the friendship of employees. Irizarry typed
letters and correspondence for Santiago both while he was
a supervisor and thereafter and was thus also identified
with him. These were the three employees laid off on
March 8 together with Santiago . The record contains little
information about Padilla and it is not shown whether she
had signed a union card or not. According to one witness,
Padilla's desk nameplate bore the title, executive secretary.
In any event, Padilla was not laid off. Graterole and
Villegas also were not laid off on March 8. They had signed
union cards but this had not occurred until March 4, which
would indicate that it was just before or just after De Jesus'
first meeting with employees on the subject of the union
movement. Moreover, Villegas and Graterole worked and
had worked in the collections department under Alejandro
and not directly under Santiago. A further consideration
that is not to be ignored is that Respondent, by, in effect,
terminating four employees on March 8, 1974, had reduced
its unit complement of 15 by approximately 27 percent. A
greater reduction might seriously impair company opera-
tion since the loss of four experienced employees was in
itself a rather drastic step. Finally, the elimination of the
instigator of the union movement, Santiago, and three of
his friends who had been the earliest signers of union cards,
could normally be expected to be sufficient to chill the
union movement among other employees.
The evidence, previously described, fully supports the
conclusion that Respondent was aware of the union
activities of Santiago, Baez, Flores, and Irizarry and
discharged them on March 8, 1974, because of their union
activities. Aside from the evidence of statements and
conversations between De Jesus and the discharged and
laid-off employees, it is apparent that in Respondent's
small and closely knit office operation, with all employees
working on one floor of a converted private house,
knowledge of the union movement and of its participants is
not surprising and would be inferable even absent other
evidence of De Jesus' awareness of what was going on. Nor
can we ignore the timing of the four discharges and layoffs,
all occurring on March 8, 1974, 1 day after a conversation
between De Jesus and Santiago on the topic of union
activities, and 3 days after a similar conversation that De
Jesus had with the remaining discriminatees. It is also clear
that the terminations came suddenly and without any
advance warning and that all the employees discharged or
laid off had signed union cards and supported the union
movement. Respondent neither offered De Jesus as a
witness to testify as to the reason for the discharge and
layoffs nor did Respondent present other witnesses for this
purpose.
I find that Santiago was discharged by De Jesus on
March 8, 1974, because of his known or strongly suspected
union activities. The discharge was in violation of Section
8(a)(3) and (1) of the Act. Respondent's attorney's
argument that Santiago was disloyal and so forth and that
therefore dust cause for discharge existed is not convincing.
Counsel, however able and eloquent, cannot supply
evidence unless he is either a witness or had introduced
evidence as to why Respondent discharged Santiago. The
General Counsel introduced a prima facie case of illegal
discrimination against Santiago. Respondent did not offer
any witness to testify as to the reasons for Santiago's
discharge but did elicit, via cross-examination, some
evidence of certain arguable deficiencies in Santiago's
conduct as an employee. The fact that Santiago could have
been discharged for nondiscriminatory reasons cannot
prevail over evidence that the sole evidentiary explanation
offered by Respondent in this record for the discharge
appears in the letter dated March 7, 1974, and delivered
the following day. The reasons adduced in that letter have'
at no time been explained either at the hearing or otherwise
and the reasons in the letter, on their face, as I have
previously pointed out, either confirm the discriminatory
nature of the discharge or offer clearly pretextual,
unexplained, and unconvincing reasons for the discharge.
I also find that Baez, Flores, and Irizarry were indefinite-
ly laid off on March 8, 1974, because of their known and
suspected union activities and in violation of Section
8(a)(3) and (1) of the Act, and it is unnecessary to repeat
the factors previously described. The letters they received
on March 8 in explanation for the layoffs are unexplained
and completely unconvincing in their reference to instruc-
tions "from the Company" and the reference "to an
economy plan that will be established."
I find that Graterole and Villegas walked out and struck
on March 8, 1974, in protest against the discharge of
Santiago, Baez , Flores, and Irizarry, their fellow unionists
and friends, and that the action of Graterole and Villegas
was also in sympathy with and in support of Santiago,
Baez, Flores, and Irizarry.
I further find that following the discharge and layoffs of
the four employees, they and Graterole and Villegas
engaged in a strike against Respondent's unfair labor
practices and that they were unfair labor practice strikers.
When the strikers made unconditional application for
reinstatement on May 13, 1974, they were entitled to
reinstatement to their former jobs. Respondent's offer of
collector's jobs to Baez, Flores, and Irizarry was not an
adequate offer of reinstatement. The unfair labor practice
strikers were entitled to their former jobs, displacing, if
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
necessary, the occupants that Respondent claimed had
been placed in those jobs. None of the dischargees had
been collectors prior to their terminations or layoffs and
collector's jobs involved methods of payment, such as
commissions and travel , that were not present in the
strikers' former jobs. Santiago, Villegas, and Graterole are
also unfair labor practice strikers entitled to reinstatement
to their former jobs from May 13, 1974, the date of the
application for reinstatement.
CONCLUSIONS OF LAW
Respondent has violated Section 8 (a)(1) of the Act by
interrogating employees regarding union activities and by
threatening employees with detriments because of their
union activities.
Respondent has violated Section 8(a)(3) and (1) of the
Act by discharging Santiago and by indefinitely laying off
Baez , Flores, and Irizarry, all on March 8, 1974, and all
because of their union activities.
Respondent has violated Section 8(a)(3) and (1) of the
Act by refusing to reinstate Santiago, Baez , Flores, Irizarry,
Villegas, and Graterole on and from May 13, 1974, when,
as unfair labor practice strikers, they made unconditional
application for reinstatement to their jobs.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it will be recommended that it cease
and desist therefrom and take certain affirmative action to
effectuate the policies of the Act.
Wilfredo Santiago, Lucas Baez , Marcial Flores, Evelyn
Irizarry, Elba Graterole, and Rosita Villegas are to be
offered by Respondent immediate and full reinstatement to
their former positions, displacing, if necessary, any persons
occupying such positions. In the event such former
positions no longer exist, the aforesaid six employees are to
be offered reinstatement to substantially equivalent posi-
tions. The offers of reinstatement shall include restoration
of seniority and other rights and privileges previously
enjoyed by the six employees.
Santiago, Baez , Flores, and Irizarry are to be made
whole for any loss of pay suffered as a result of the
discrimination against them by payment to each of a sum
of money equal to that which he or she normally would
have earned, absent the unlawful discrimination, from
March 8, 1974, to the date of the offer of reinstatement,
less intermediate earnings, if any, and with interest at 6
percent on the balance due. All computations herein are to
be made on a quarterly basis. Villegas and Graterole are to
be paid the moneys they would have earned, absent the
discrimination against them, from May 13, 1974,31 to the
date of the offer of reinstatement, less any intermediate
earnings , and with interest at 6 percent on the balance due.
31 Unlike Santiago, Baez, Flores, and Irizarry who were discharged and
laid off on March 8 , 1974, Villegas and Graterole ceased work on that date
as unfair labor practice strikers and as strikers their entitlement to
reinstatement and backpay did not commence until May 13, 1974, when
they and the others (who had also participated in the strike after being
discharged ) applied for reinstatement
31 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
Upon the foregoing findings of fact, conclusions of law,
and the entire record, I hereby issue the following:
ORDER32
Respondent, Saladmaster Corporation, its officers,
agents , successors , and assigns, shall:
1. Cease and desist from:
(a) Discharging, laying off, or refusing to reinstate
employees for engaging in concerted or union activities for
their mutual aid and protection.
(b) Interrogating or threatening employees with detri-
ments or reprisals regarding union or concerted activities
or because they engage in concerted or union activities.
(c) In any other like or related manner, interfering with,
restraining, or coercing employees in the exercise of rights
guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Offer Wilfredo Santiago , Lucas Baez, Marcial Flores,
Evelyn Irizarry, Elba Graterole, and Rosita Villegas
immediate and full reinstatement to their former positions,
displacing, if necessary, any occupants of those positions
and, if such positions no longer exist, to sustantially
equivalent positions, without prejudice to seniority and
other rights and privileges; and make them whole for any
loss of pay, with interest, as more fully described in this
Decision under the heading of "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents , for examination and copying, all
payroll records, social security records, timecards, attend-
ance records, personnel records and other records neces-
sary for the determination of backpay due and the rights of
reinstatement under the terms of this Order.
(c) Post at its place of business and office in Rio Piedras,
San Juan, Commonwealth of Puerto Rico, copies of the
attached notice, in English and in Spanish, marked
"Appendix." Copies of said notice, on forms provided by
the Regional Director for Region 24, after being signed by
an authorized representative of Respondent, shall be
posted by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the aforesaid Regional Director, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith 33
conclusions , and recommended Order herein shall, as provided in Sec
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings , conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
33 In the event that the Board 's 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 "
SALADMASTER CORPORATION 777
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties were represented by
their attorneys and were afforded the opportunity to
present their evidence , it has been found that we have
violated the National Labor Relations Act in certain
respects and an order has been issued and we have been
ordered to post this notice and to inform you that:
WE WILL NOT discharge, layoff, refuse to reinstate, or
otherwise discriminate against our employees for
engaging in union or concerted activities for their
mutual aid and protection.
WE WILL NOT interrogate or threaten our employees
with detriments or reprisals regarding union or concert-
ed activities or because they engage in union or
concerted activities.
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce our employees in the exercise
of their rights guaranteed to them by Section 7 of the
National Labor Relations Act.
WE WILL offer Wilfredo Santiago , Lucas Baez,
Marcial Flores , Evelyn Irizarry, Elba Graterole, and
Rosita Villegas immediate and full reinstatement to
their former positions, displacing, if necessary, any
occupants of those positions ; and, if such positions no
longer exist, to substantially equivalent positions,
without prejudice to their seniority and other rights and
privileges.
WE WILL pay to the aforenamed six employees the
wages and earnings , with interest at 6 percent, that they
may have lost by reason of their discharges , layoffs,
and our refusal to reinstate them , as more fully
described in the section of this Decision entitled "The
Remedy."
SALADMASTER CORPORATION