Simmons, Inc.

National Labor Relations Board - Board Decisions

Dec 7, 1961

134 N.L.R.B. 1038 (N.L.R.B. 1961)

1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Simmons, Inc. and George L. Weasler and Mariano Vazques and
Ariel' Morales. Cases Nos. 24-CA-1167 and 24-CA-1168. De-
cember 7, 1961
DECISION AND ORDER
On June 16, 1961, Trial Examiner Samuel Ross issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. The Trial Examiner also found that the Respondent
had not engaged in certain other unfair labor practices alleged in the
complaint and recommended that such allegations be dismissed.
Thereafter, the Respondent, the Charging Party, and the General
Counsel filed exceptions to the Intermediate Report together with sup-
porting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, except as hereinafter set forth.
1. We adopt the Trial Examiner's conclusion that Respondent did
not violate the Act by its discharge of Miguel Pacheco Cintron, Angel
Luis Gambaro, Juan A. Garcia, and Jose C. Burgos on March 24,1959.
These employees were discharged by Respondent for inciting, as
members of the Comite, the strike of March 23, 1959. The Board held
in an earlier proceeding that this strike was not violative of Section
8(b) (4) (C) as alleged in that case,' but the United States Court of
Appeals for the First Circuit reversed this finding of the Board2
In a Supplemental Decision and Order issued subsequent to the Inter-
mediate Report in this case, the Board, noting its respectful
disagreement with the court's opinion, accepted the court's findings
and conclusions as the law in the case and, in accord therewith, found
that the Comite and the above-named employees violated Section
8 (b) (4) (C) by virtue of the March 23 strike 3
Expressing himself in agreement with the Board's original decision
in the earlier case, but finding that the records in the two cases were
1 Comite de Empleados de Simmons , Inc, et al, 127 NLRB 1179.
2 Sammons, Inc v. NLRB., 287 F. 2d 628 (C.A. 1).
3 Comte de Empleados do Simmons , Inc., et al ( Simmons Inc ), 132 NLRB 242.
134 NLRB No. 100.
SIMMONS, INC. 1039
not substantially different, the Trial Examiner concluded that Cin-
tron, Gambaro, Garcia, and Burgos engaged in an unprotected ac-
tivity when they incited the strike of March 23 and that Respondent
could, as it did, discharge them therefor. Under all the circumstances,
including the absence of any significant difference between this record
and the earlier one, we also are compelled to hold that Respondent
did not violate the Act by the discharges.
2. After the unfair labor practice strike of March 25 was enjoined
on April 28, 1959, Respondent rehired strikers Arturo Santiago and
Ventura Rivera on or before May 4, and strikers Maria Serrano and
Antonio Gonzalez on May 22 and 27, 1959, respectively. Because the
General Counsel produced no proof that these employees applied for
reinstatement at any time before they were rehired, the Trial Ex-
aminer provided no remedy in their cases. We do not agree with
this disposition.
These four employees, together with the other employees who struck
on March 25, were, as found by the Trial Examiner, discharged while
on strike on or about April 15, 1959, in violation of Section 8(a) (3)
of the Act. When reinstated, they were rehired as new employees
and deprived of all seniority acquired before the strike. Clearly,
therefore, although Respondent has reinstated these employees, it
has not fully remedied its unlawful treatment of them. In the cir-
cumstances, we shall order Respondent to restore to these employees
their full seniority and other rights and privileges withheld upon
their reinstatement and make them whole for any financial loss re-
sulting from their reinstatement as new employees.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Simmons, Inc., San Juan, Puerto
Rico, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in and activities on behalf of Comite
de Empleados de Simmons, Inc. (also known as Comite de Negoci-
aciones de los Empleados de la Simmons, Inc.), or any other labor
organization of its employees, or encouraging membership in Sea-
farers International Union of North America, Atlantic and Gulf
District, Puerto Rico Division, AFL-CIO, or any other labor or-
ganization, by discharging or refusing to reinstate any of its em-
ployees or in any other manner discriminating in regard to their hire
or tenure of employment, or any term or condition of employment,
except to the extent permitted by the proviso to Section 8(a) (3)
of the Act.
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Threatening employees with discharge or other economic re-
prisals for the purpose of coercing employees into agreeing to terms
of proposed collective-bargaining agreements.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist Comite de Empleados de
Simmons, Inc. (also known as Comite de Negociaciones de los Emple-
ados de la Simmons, Inc.), Seafarers International Union of North
America, Atlantic and Gulf District, Puerto Rico Division, AFL-
CIO, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from engaging in such activi-
ties, except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition of
employment, as authorized by Section 8(a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Filiberto Aviles-Padilla, Angel Luis Cintron, Mari-
ano Vasquez, Daniel Ramos, Joachin Ramos, Ariel Morales, Victor
Isaac, Evangelico de Jesus, Ramon Cruz, Jose Villafane, Pedro Pa-
checo, and Manuel Menendez immediate and full reinstatement to
their former or to substantially equivalent positions, without preju-
dice to their seniority and other rights and privileges, and make them
whole for any loss of earnings they may have suffered as a result of
the discrimination against them, as provided in the section of the In-
termediate Report entitled "The Remedy."
(b) Upon application, offer immediate and full reinstatement to
Jose A. Villafane, Otilio Fernandez, Manuela Soto, and Rafael Mar-
rero to their former or substantially equivalent positions, and make
them whole for any loss of pay which they may suffer, if any, by
reason of Respondent's refusal to reinstate them, as provided in the
section of the Intermediate Report entitled "The Remedy."
(c) Restore to Arturo Santiago, Ventura Rivera, Maria Serrano,
and Antonio Gonzalez the seniority and any other rights and privi-
leges withheld from them upon their reinstatement following the
discrimination against them, and make them whole for any financial
loss suffered as a result of their improper reinstatement as new
employees.
(d) Preserve and, upon request, make available to the Board or its
agents, for examination and copying,,all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and
all other records necessary to analyze the amount of backpay due
under terms of this Order.
SIMMONS, INC. 1041
(e) Post at its plant at San Juan, Puerto Rico, copies of the notice
attached hereto marked "Appendix A." 4 Copies of said notice, to be
furnished by the Regional Director for the Twenty-fourth Region,
shall, after being duly signed by an authorized representative of the
Respondent, be posted by the Respondent immediately upon receipt
thereof, and be maintained by it for a period of 60 consecutive days
thereafter, in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(f) Notify the Regional Director for the Twenty-fourth Region,
in writing, within 10 days from the date of this Order, what steps it
has taken to comply therewith.
A In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in or activities on behalf
of Comite de Empleados de Simmons, Inc. (also known as
Comite de Negociaciones de los Empleados de la Simmons, Inc.),
or any other labor organization of our employees, or encourage
membership in Seafarers International Union of North America,
Atlantic and Gulf District, Puerto Rico Division, AFL-CIO, or
any other labor organization, by discharging or refusing to rein-
state any of our employees, or in any other manner discriminat-
ing against our employees in regard to their hire or tenure of
employment, or any term or condition of employment, except
to the extent permitted by the proviso to Section 8(a) (3) of the
Act.
WE WILL NOT threaten our employees with discharge or other
economic reprisals for the purpose of coercing them into agree-
ing to the terms of proposed collective-bargaining agreements.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to form labor organizations, to joint or assist
Comite de Empleados de Simmons, Inc. (also known as Comite
de Negociaciones de los Empleados de la Simmons, Inc.), Sea-
farers International Union of North America, Atlantic and Gulf
630849-62-vol. 134-67
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
District, Puerto Rico Division, AFL-CIO, or any other labor
organization, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or
protection, and to refrain from any or all such activities, except
to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of
employment, as authorized by Section 8(a) (3) of the Act.
WE WILL offer to Filiberto Aviles-Padilla, Angel Luis Cintron,
Mariano Vazques, Daniel Ramos, Joachin Ramos, Ariel Morales,
Victor Isaac, Evangelico de Jesus, Ramon Cruz, Jose Villafane,
Pedro Pacheco, and Manuel Menendez immediate and full rein-
statement to their former or substantially equivalent positions,
without prejudice to their seniority and other rights and priv-
ileges, and make them whole for any loss of pay suffered as a
result of the discrimination against them.
WE WILL, upon application, offer immediate and full reinstate-
ment to Jose A. Villafane, Otilio Fernandez, Manuela Soto, and
Rafael Marrero to their former or substantially equivalent posi-
tions, without prejudice to their seniority and other rights and
privileges.
We WILL restore to Arturo Santiago, Ventura Rivera, Maria
Serrano, and Antonio Gonzalez the seniority and any other rights
and privileges withheld from them upon their reinstatement fol-
lowing the discrimination against them, and make them whole
for any financial loss suffered as a result of their improper rein-
statement as new employees.
SIMMONS, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE -
Upon charges of unfair labor practices duly filed against Respondent Simmons,
Inc., herein called Simmons , the General Counsel of the National Labor Relations
Board issued a consolidated complaint dated September 6, 1960 , alleging that
Simmons had engaged in and is engaging in unfair labor practices within the meaning
of Section 8(a)(1) and ( 3) of the National Labor Relations Act, as amended (61
Stat . 136, 73 Stat . 519), herein called the Act . In substance , the complaint alleges
that on March 24, 1959 , Simmons discharged 5 employees 1 because they had engaged
in a strike or other lawful concerted activities on March 23 , 1959; that about March
25, 1959, Simmons discharged 19 other employees because they engaged in a second
Miguel Pacheco Cintron , herein called Pacheco, Angel Luis Gambaro , Juan A. Garcia,
Jose C. Burgos, and Filiberto Aviles-Padilla.
SIMMONS, INC. 1043
strike protesting the discharge of the 5 employees; 2 and that since May 4, 1959,
Simmons has refused to reinstate the 19 employees, notwithstanding their uncondi-
tional offer to return to work. The complaint further alleges that on March 20, 1959,
Simmons interfered with, restrained, and coerced its employees in the exercise of their
rights guaranteed by the Act, by threatening to discharge employees unless they
immediately agreed to accept a collective -bargaining agreement then being negotiated
by Simmons with the Seafarers International Union of North America, Atlantic and
Gulf District, Puerto Rico Division, AFL-CIO (herein called SIU). Simmons'
answer denies the substantive allegations of the complaint and denies that it engaged
in the commission of unfair labor practices.
Pursuant to due notice, a hearing was held before me in Santurce, Puerto Rico, on
October 10, 11, 12, 13, 14, 17, and 18, 1960. All parties were represented at the
hearing by counsel and were afforded full opportunity to be heard, to introduce
evidence , to examine and cross -examine witnesses , to present oral argument, and to
file briefs. A brief was filed by the Respondent which I have fully considered.
Upon the entire record in the case,3 and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. COMMERCE
Simmons, Inc., is a Puerto Rico corporation whose office and principal place of
business is located in San Juan, Puerto Rico, where it is engaged in the manufacture
and sale of mattresses, box springs, and upholstered furniture. During the past 12
months, Simmons purchased and caused to be shipped to its factory in Puerto Rico
from points and places outside of Puerto Rico, materials valued at in excess of
$100,000. On the foregoing admitted facts, I find that Simmons is engaged in
interstate commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Seafarers International Union of North America, Atlantic and Gulf District,
Puerto Rico Division, AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. SIU's certification as the representative of Simmons' production
and maintenance employees
In February 1957, Simmons entered into a 2-year collective-bargaining agreement
expiring January 31, 1959, with the then representative of its employees, Union de
Trabajadores de la Industria de Mattresses, Muebles y Ramas Anexas, herein called
the Mattress Workers, which at that time was affiliated with Federacion Libre de
Trabajadores de Puerto Rico, herein called FLT. The contract was signed on behalf
of the Mattress Workers by its officers, Pacheco, Gambaro, and Burgos, three of the
five employees whose discharge by Simmons is alleged herein as a violation of the
Act. Sometime in 1958 , the Mattress Workers withdrew their affiliation from FLT
but continued in existence as an independent union , operating under the same
collective-bargaining contract and with the same officers.
In late 1958 , under the initiative and sponsorship of their officers in Mattress
Workers, Simmons' production and maintenance employees decided to affiliate with
SIU.4 Thus, according to the uncontradicted and credited testimony of Victor Bosch,
then president of SIU's Puerto Rico Division, in November 1958, Simmons' em-
ployees attended a meeting at SIU's offices, approved a motion "to join SIU as
members" and 30 of them "signed membership cards." Thereafter, on December
3, 1958, SIU both orally and by telegram demanded recognition by Simmons as the
2 This allegation was added to the complaint by amendment during the hearing.
3 Upon request of the parties , I have also considered the entire record in the matter of
Comite de Empleados de Simmons , Inc., et al, 127 NLRB 1179, in which subsequent to
the hearing in this case, the Court of Appeals for the First Circuit, reversing the contrary
decision of the Board, concluded that the strike of March 23, 1959, was an unfair labor
practice within the meaning of Section 8(b) (4) (C) of the Act. See Simmons Inc. v.
N.L R.B., 287 F. 2d 628 (C.A. 1).
* Early in 1958 , Pedro Grant , SIU's executive secretary , had told them to wait until the
expiration of the then current collective -bargaining agreement between Simmons and
Mattress Workers.
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative of the latter 's employees .5 On December 10, 1958 , pursuant to a
notice of meeting signed by President Pacheco and Secretary Gambaro of Mattress
Workers, another meeting of Simmons ' employees was held at SIU's offices. At this
meeting, Pacheco and Gambaro were elected as SIU delegates , and they, together with
Burgos, Garcia, and Aviles-Padilla, were elected as members of SIU's negotiating or
bargaining committee . President Bosch and Executive Secretary Grant were desig-
nated as ex-officio members of this committee , which was instructed "by the members
present to prepare a collective bargaining agreement proposal and to carry on
negotiations with Simmons."
On January 15, 1959 , at a meeting at the SIU offices between Simmons and SIU,
in which the latter was represented by Executive Secretary Grant and Delegates
Pacheco and Gambaro , SIU renewed its demand for recognition . Simmons refused
to do so without a Board election because Local 901 of the Teamsters was asking
recognition for some of Simmons ' employees . 6 Thereafter, on January 23,7 SIU filed
a petition with the Board seeking to represent Respondent 's production and main-
tenance employees.8 The Mattress Workers were advised by the Board of SIU's and
Teamsters ' petitions , but on January 28, Pacheco and Gambaro, as president and
secretary , respectively , of Mattress Workers, filed a disclaimer of interest which stated
that Mattress Workers "hereby waives and disclaims any and all rights to represent
the employees of Simmons , Inc.," in the pending representation cases. In the consent
election which followed , both SIU and Teamsters won in the unit for which each had
petitioned.9 On March 5, SIU was certified by the Board as the representative of
Simmons' production and maintenance employees and Teamsters was certified as the
representative of Simmons ' drivers and warehouse employees.
B. The contract negotiations between SIU and Simmons which preceded the
strike of Simmons' employees on March 23, 1959
While SIU 's petition for certification was pending before the Board , the negotiat-
ing committee drafted contract proposals at SIU 's offices for submission to Simmons.
These proposals were approved by Simmons ' employees about January 27, at a
meeting at SIU's headquarters called for that purpose by Grant , as executive secre-
tary of SIU , and Pacheco and Gambaro, as delegates . On March 5 , the day SIU
was certified, SIU's Executive Secretary Grant sent to Simmons the contract pro-
posals which had been drafted in Spanish by the negotiating committee. These
proposals contained , inter alia, one which would require Simmons to pay into SIU's
welfare fund, 10 cents per working hour for each employee. Thereafter, Salvatore
Coils, SIU 's port agent , visited Simmons ' Vice President and General Manager
Gentile and instructed him "to forget" the contract proposals which he had re-
ceived "because Keith Terpe would negotiate . with the Simmons Company." 10
On March 12, Gambaro and Pacheco sent a telegram to Terpe requesting that the
negotiating committee "appointed by the membership be present " when SIU bar-
gained with Simmons . Notwithstanding this request , bargaining with Simmons com-
menced at the SIU office on March 16 and continued thereafter on March 17, 18,
and 19 without notice to or participation by any of the members of the negotiating
committee.
According to Gentile's credited testimony , Terpe and Grant were the Union's
representatives at the first meeting on March 16. At the bargaining sessions on
March 17, 18, and 19, Terpe and Coils were SIU's negotiators, and Simmons was
represented by Gentile , and by his superior , Dan Raffone , a vice president of Sim-
mons International , Ltd., of which Respondent Simmons is an affiliate . Accord-
ing to Gentile's credited testimony , the following transpired at the bargaining ses-
sions . On March 16, Terpe suggested that the parties use as a basis for negotiation
e On Simmons ' request , SIU agreed to defer discussion of its demand for recognition until
mid-January 1959
6 On January 13, 1959, the Teamsters had filed a petition with the Board for certification
as the representative of Simmons ' five truckdrivers and warehouse employees , Case No.
24-RC-1143 (not published in NLRB volumes).
° Unless otherwise noted, all dates hereafter refer to the year 1959
' Case No. 24-RC-1150 ( not published in NLRB volumes).
e In the production and maintenance unit, SIU received 37 out of 39 votes cast The
other two votes were challenged , and since they could not affect the results of the election,
the challenges were not resolved
10 Victor Bosch had resigned from SIU on December 31, 1958, and was later replaced as
president of SIU 's Puerto Rico Division by Keith Terpe , a national director of organization
for SIU.
SIMMONS, INC. 1045
a contract recently negotiated by SIU on the mainland with the United States
Hair & Foam Company. Copies of this contract, which was in English, were given
to Simmons' representatives and the meeting adjourned to the next day to afford the
Company an opportunity to study it. At the succeeding sessions on March 17, 18,
and 19, the parties discussed and reached tentative agreement on a number of
clauses, including the recognition clause, grievance procedure , union shop, and
no-strike clauses, and on working rules. On March 19, the par-ties agreed to renew
their negotiations on the following afternoon.
Terpe denied that he was present at the meeting of March 16. He also denied that
that there had been any negotiations with Simmons prior to March 20 other than
preliminary informal talks. I do not credit either of these denials of Terpe. Terpe's
own later testimony disclosed that there had been three or four meetings with Sim-
mons before March 20, during which various clauses of a proposed agreement with
the Company were discussed. Moreover, although contrary to Gentile's credited
testimony, Terpe at first denied that tentative "agreement" had been reached at these
allegedly "preliminary" meetings with Simmons, he later admitted that "accord" had
been reached on a number of such clauses. Indeed, the bargaining sossion of
March 20 hereinafter described, including the pressures exerted both by Terpe and
Simmons' representatives on the negotiating committee to sign a contract that night,
makes the conclusion inescapable that SIU and Simmons had reached substantial
agreement during the meetings of March 16, 17, 18, and 19, on virtually all of the
basic terms of the contract, including monetary matters.li In view of the foregoing,
I regard Terpe's refusal to characterize the meetings with Simmons before March 20
as bargaining or negotiation sessions , as an exercise in semantics.12
On March 20, the day before Grant resigned from SIU because of disagreement
with its policies, he on his own initiative notified Gambaro while the latter was
as work, that SIU had engaged in contract negotiations with Simmons without the
employees' bargaining committee.13 Gambaro expressed disbelief that SIU would
negotiate without his knowledge. Nevertheless, he notified Pacheco and the two
of them went to the SIU office at 2 p.m., where they were introduced by Colls to
Terpe as "the two delegates" from Simmons and as "part of the committee." Terpe
then told Gambaro and Pacheco that he had persuaded Simmons to grant the
employees an increase of 6 cents per hour and an additional paid holiday on Good
Friday, and Coils said, "The contract is going to be signed that afternoon." In view
of these developments, Gambaro and Pacheco decided to call the rest of the com-
mittee. When Garcia and Burgos 14 arrived about 4 p.m., Terpe called the four
committee members into his office, and said, "The contract has to be signed to-
night." The four replied that they were not going to sign any contract that day
because they, had not gone there for that purpose. However, Terpe persuaded
them to remain for the negotiation meeting with Simmons.
11 In this respect, I do not credit the testimony of Gentile that there had been no dis-
cussion of money matters between Terpe and Simmons' officials, and that by agreement,
such matters had been deferred until the other terms of the agreement had been nego-
tiated Indeed, Terpe, a witness for Simmons testified that the second meeting between
the parties was devoted exclusively to discussion of the Company's "counterproposal"
regarding such matters.
12 Terpe was an evasive, argumentative, and unresponsive witness whose testimony was
both self-contradictory and contrary to other testimony which I believe For all of these
reasons and others, I regard Terpe's testimony as generally unreliable and not worthy of
credence except where it is an admission against interest or in accord with other testimony
which I credit.
13 Terpe testified that he "dispatched" Grant to notify the bargaining committee "to
come" to the negotiations that day Grant denied that Terpe ever so instructed him either
that day or at any other time. Significantly, Terpe also testified that the committee's
function was "purely advisory," whereas Bosch testified that the committee had been in-
structed "to carry on negotiations with Simmons " Bosch, who was president of SIU's
Puerto Rico Division when the committee was elected, was obviously a more reliable wit-
ness in this regard than Terpe, who, as far as the record shows, was not even present in
Puerto Rico at that time Accordingly, I do not believe Terpe's testimony in respect to
the limited function of the committee, and I likewise disbelieve his testimony that he
instructed Grant to notify the committee to attend the March 20 bargaining session, the
latter because it is inconsistent with Terpe's testimony regarding the limited function of
the committee and with his failure to notify them to attend the four earlier bargaining
sessions
14 The fifth committee member, Aviles-Padilla, could not be reached because his shift
had ended at 2 p in.
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The four committee members and Terpe and Colls met with Gentile and Raffone
about 5 o 'clock that evening . The Hair & Foam contract which had been the basis
for the negotiations between Simmons and SIU in the preceding sessions was read
in English and interpreted by Colls to the four committee members. The commit-
mittee again objected to negotiating because of their lack of understanding of the
English contract and the absence of their contract proposals in Spanish . Gentile
then went to his office and returned with a copy of the contract demands which
the negotiating committee had drafted . However, the Hair & Foam contract con-
tinued as the basis for the negotiations . Thereafter , there were frequent disagree-
ments between the four committee members and Terpe and Colls in respect to
various clauses upon which there had been previous agreement between the SIU
representatives and Simmons . For example , according to the credited testimony of
Gentile , the committee objected to the recognition clause which named SIU as
the sole representative of the employees . However, when it was explained to them
by Terpe that the recognition clause was in accordance with the certification of
SIU and that , "You people are a part of this union ," the committee members
droppedetheir objections to this clause.15 The committee members also suggested that
the checkoff of dues should go to their treasury rather than to SIU's,1e but eventu-
ally receded from this request . However, in respect to other provisions, more
specifically the arbitration and no-strike clauses, Terpe was unable to persuade the
committee members to accept his proposals . In respect to the no -strike clause, Terpe
insisted that the proposed language in the Hair & Foam contract was necessary for
the protection of SIU "by vir tue of their [Mattress Workers Union ] affiliation with
us [SIU] ." 17 On several occasions during the negotiations , Terpe, Colls, and Raf-
fone said that they wanted the contract to be negotiated that night and were willing
to stay there all night to achieve that objective . About 9 o'clock that evening,
Terpe had to leave to meet some people arriving at the airport . Just before he left,
according to the credited testimony of committee member Garcia, Terpe said that
he wanted the contract signed that night or else "You will not have a union or a
contract ." 18 Garcia also testified that after Terpe left, Raffone told the committee
members that he had to leave for the States and that unless a contract was signed
that night , they would have to wait until July when he got back to Puerto Rico.
The committee members then suggested that discussion of the disputed no-strike
clause be set aside and that they proceed with the discussion of other clauses in the
contract. However, Raffone said, "No, . I want this contract signed tonight."
He then said that if it was not signed, "You ' ll have no union, no contract, or no
job, and on Monday morning when you go back to work , if you look to the side,
that will be reason enough to fire all of you." Other than to fix the date of Mon-
day, March 23, for the resumption of negotiations , this apparently was the final
statement that was made that evening before the meeting broke up.19
151n view of this and Bosch's credited testimony that Simmons ' employees had joined
SIU "as members," I do not believe Terpe's contrary testimony in the CC case that they
"were not even SIU members."
16 The committee as such had no treasury. By the term "their treasury," the committee
members were obviously referring to the treasury of the Mattress Workers Union which
at that time contained approximately $1,000
171 regard this statement by Terpe, an articulate witness, as an admission that
Mattress Workers was, in effect, a local union of SIU, since the term "affiliation" does not
apply to employees who "join" a union.
is Garcia's testimony in this respect corroborates that of Gambaro in Cases Nos.
24-ACC-60 and 24-CC-61 (127 NLRB 1179). Terpe denied making this statement
Gentile testified that he could not recall whether such a statement was made, which, of
course, is not the equivalent of a denial The statement attributed to Terpe by both
Garcia and Gambaro is consistent with Terpe ' s undenied insistence that a contract be
signed that night, and with the frequent disagreement between Terpe and the committee
members over the terms of the proposed contract . Moreover , I do not regard Terpe as a
trustworthy witness. For all these reasons , I do not credit his denial
19 Garcia's testimony in this respect is virtually identical to that of Gambaro in Cases
Nos. 24-CC-60 and 24-CC-61. Raffone did not testify either in this or the prior pro-
ceeding. Gentile testified that the meeting broke up when Terpe left However Gentile's
testimony in this respect was not only contrary to that of Garcia, but also to that of
Simmons' witness Terpe, who testified that the meeting was still in progress when he left,
that he returned from the airport later that night, found the office closed, and "concluded
the meeting was over." I therefore do not credit Gentile in this respect Gentile and
Terpe both testified that they did not hear Raffone make this threat. Obviously, Terpe
could not have heard it since he was not at the meeting when it was made Moreover,
SIMMONS, INC. 1047
The apparent agreement between Terpe and Simmons regarding the terms of the
contract negotiated in their absence, and the threat which had been made by Terpe
and Raffone to coerce agreement to its execution that night, quite obviously caused
the committee members to conclude that SIU and Simmons would execute the con-
tract with or without their acquiescence. Accordingly, the next day, the four com-
mittee members released a statement to the press highly critical of the manner in
which SIU had handled the negotiations with Simmons 2° The release charged
Terpe with having negotiated "by himself," without the authorization and "knowledge
of the workers," an agreement "contrary to the demands made by us." It criticized
the provisions of the agreement "negotiated by Terpe" and related the threats which
Terpe and Raffone had made.
C. The strike of March 23, 1959
On Monday, March 23, between the hours of 6:20 to 7 a.m., the four committee
members 21 accosted Simmons' employees as they arrived for work and reported to
them what had transpired at the SIU offices on the preceding Friday, including the
threats made to them by Terpe and Raffone. Thereupon, Simmons' production and
maintenance employees decided to engage in a demonstration strike for that half
day only,22 and the employees in the drivers and warehouse unit represented by
Teamsters decided to honor the strikers' picket line which was set up about 7:30 a.m.23
There is a conflict in the record in respect to whether this strike was engaged in
by the employees contrary to the advice of the four committee members. Gambaro
so testified in the CC case, and Garcia testified in the instant proceeding that he was
opposed to striking. However, two other employees whom I credit in this regard,24
testified without contradiction that they were instructed to engage in the strike by
Pacheco 25 I am satisfied on the whole record that the four committee members
initiated and controlled the strike and that Simmons' employees would not have
struck if they had opposed it.
About 8 a.m. Gentile requested committee members, Pacheco, Gambaro, Garcia,
and Burgos to come to his office and when they complied, Raffone asked them
whether they were on strike and why. Gambaro replied, "We are on strike," and he
said that a telegram had been sent to Simmons "which would explain the strike."
That telegram, which was drafted that morning for Gambaro and Garcia by Victor
Bosch, was received later in the day by Gentile. It read:
We are on strike during this day in order to reject agreement negotiated by
SIU representative. We dmand our committee be recognized to negotiate
contract.
Garcia testified that the purpose of the half-day strike was to protest Raffone's
threat to discharge any employee "who looks to the side," and to persuade SIU
to use the committee and its proposals, rather than the Hair & Foam contract, in
any further negotiations with Simmons.
That same morning, Gentile also called SIU's office to obtain the latter's assistance
in ending the strike. He was advised by Colls that the strike had not been authorized
by SIU. About 11 a.m., Terpe came to Simmons' plant and told the four cc,.nmittee
members and the striking employees that there had been a "terrible misunderstand-
ing, that no contract with Simmons had yet been executed," and "that the committee
and the Union [SIU] should proceed full blast and speed ahead to get a contract."
Everybody agreed and the picket signs were taken down and burned. However,
because of the half holiday, the employees did not return to work until the following
morning.
since Gentile testified that he was in and out of the meeting room that night, his testimony
does not controvert Garcia's testimony that the threat was made. Thus, Raffone's threat
stands uncontradicted on the record and I credit Garcia's testimony in this respect.
20 See General Counsel's Exhibit No 14, Cases Nos 24-CC-60 and 24-CC-61.
21 Aviles-Padilla was not at the plant that day because he had been given the day off
by his supervisor
22 March 23 has a half-day holiday.
23 The picket signs were generally derogatory of Terpe, the SIU, and the "sweetheart"
contract which Terpe had allegedly negotiated with Simmons. See General Counsel's
Exhibit No 8.
24 Augusto Silva and Justino Martinez.
25 Pacheco did not testify
1 048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
That afternoon, Simmons filed a charge with the Board alleging that the com-
mittee and its two agents, Pacheco and Gambaro, had violated Section 8 (b) (4) (C)
of the Act by striking on March 23 with an object of forcing or requiring Simmons
to bargain with the committee notwithstanding that SIU was the certified exclusive
bargaining representative of the employees 26 At the same time, Simmons filed a
charge against SIU, alleging that since March 16, the latter had refused to bargain
in violation of Section 8 (b) (3) of the Act, by "failing to designate a proper col-
lective bargaining agent to negotiate a contract" and by permitting "a work stoppage
during the course of negotiations...." 27
D. Respondent's discharge of the five committee members
On March 24, all of Simmons' employees resumed work. About 7:30 a.m., the
five committee members were called into Gentile's office. Gentile asked them if
they were the members of the committee. When they all replied "Yes," Gentile
informed them that they were fired for instigating and inciting an illegal strike,
referring to the strike of the day before. Thereupon, the five left the plant, went to
the SIU office, and apprised Colls and later Terpe of their discharge.28 The dis-
chargees then consulted with SIU's counsel, Hipolito Marcano, at the SIU offices.
They discussed the strike of the day before and showed him the original draft of
the telegram quoted above. Marcano recognized the handwriting on the draft
as that of Bosch and told the dischargees that Bosch had written it. According to
Marcano, Terpe or Colds then asked the dischargees whether they knew that Bosch
was connected with the Teamsters as "counsel or leader or something." Marcano
testified, "Then we went on discussing why, being members of the SIU, why did they
consult Mr. Bosch, an officer or counselor in some way connected with the Team-
sters, instead of coming to the union [SIU]? " 29 Marcano advised the five that
since no contract had been signed between SIU and Simmons, the telegram was "a
mistake" and that another should be sent to the Company. Marcano then drafted
the following telegram which was sent to Simmons:
Upon action taken by us, workers resumed work today. We abrogate and
withdraw previous telegram upon clarification of negotiation situation. Bargain-
ing committee ready to resume negotiations on behalf of SIU with attendance
and assistance of SIU leaders to which we are affiliated.
The message was signed "For the Bargaining Committee" by all the committee
members except Aviles-Padilla.
E. Events between March 25 and execution of collective-bargaining contract
between Simmons and SIU on April 10
On March 25 at 7:30 a.m., all but two of Simmons' production and maintenance
employees went out on a second strike 30 According to the credited and uncontra-
dicted testimony of Angel Luis Cintron, the object of the second strike was to pro-
test the discharge of Pacheco, Garcia, Gambaro, Burgos, and Aviles-Padilla. Pickets
paraded in front of Simmons' plant with signs which read as follows:
20 Case No. 24-CC-GO
2' Case No 24-CB-310 This charge, obviously inconsistent with its charge in the CC
case, was later withdrawn by Simmons under circumstances hereinafter set forth
28 Terpe testified that he was shocked at the news and asked then why they had been
discharged He also testified that Garcia then said that Gentile had asked them whether
they were responsible for the strike, that they had admitted that they were, and that
Gentile thereupon fired them 1 regard this testimony as another indication of Terpe's
incredibility. Neither Gentile, nor any other witness to the discharge of the five com-
mittee members, testified that the dischargees were asked or that they admitted re-
sponsibility for the strike It is, therefore, incredible that Garcia would have reported
to Terpe, whom he distrusted, an admission which he had not made to Gentile. Moreover,
in the light of Gentile's credited testimony that he notified SIU immediately after he
discharged the five, I regard Terpe's professed shock at the news of their discharge as
feigned
29 Terpe testified that there was in progress at that time, a "life and death" struggle
and "running war" between SIU and Teamsters over the representation of employees in
many of the industrial facilities in Puerto Rico In effect, therefore, the five dischargees
were being asked why they had defected to the enemy
so The two were maintenance men. As in the case of the earlier strike, the unit of
Simmons' employees represented by Teamsters honored the strikers' picket line
SIMMONS, INC. 1049
Gentile, who is next?
We protest about the discharged workers
Gentile , you are not in Mexico
Gentile, stop your hate against your employees
The committee members were at SIU's offices waiting for Terpe when the second
strike and picketing started . Terpe was advised of the strike by a telephone call
from Gentile at 8 a.m. He told Gentile that the strike was not authorized by SIU.
According to Terpe, he then urged the committee members to instruct the strikers
to go back to work, they denied responsibility for the second strike, but agreed
to tell the strikers to resume work.31 Terpe testified that he also sent "representa-
tives of the Seafarers Union" to the Simmons plant to urge the strikers to go back
to work. However, the record does not disclose that any such representative ever
actually complied with Terpe's instructions, if, in fact, any such were given. In
any event, the strike continued until enjoined 5 weeks later as hereinafter reported.
On March 25, Terpe "sent one of our [SIU's] officers, Felix de Jesus to the
Labor Board to prepare unfair labor practice charges against Simmons, Inc.," based
on the discharge of the committee members. At the Board's office, de Jesus stated
that he was not authorized to sign the charge. Therefore, Pacheco signed the
charge as "President of the Comite de Negotiaciones de los Empleados de la Sim-
mons, Inc." 32 On March 31, this charge was withdrawn by Gambaro as "Sec-
retary" of the Comite, and was substituted on the same day by a new charge filed
by SIU.33 SIU's charge alleged that the five had been discharged in violation of
Section 8(a)(3) of the Act, "because of their activities in behalf of the below-
named labor organization [SIU] and because they had engaged, as representatives
of said labor organization [SIU], in a strike against the above-named employer
[Simmons] on or about March 23, 1959."
On March 30, bargaining negotiations between SIU and Simmons resumed. The
five committee members participated in the negotiations, as representatives of SIU,
together with Terpe and Colls At the outset, Terpe requested that Simmons re-
instate the five discharged committee members. Gentile replied that "he would
be happy to discuss the discharge of these employees after we completed the nego-
tiations" and the matter was tabled for later discussion. Further bargaining ses-
sions with Simmons, with the committee members participating as part of the
SIU bargaining team, were held on March 31 and April 1, 2, 3, 6, and 7. During
these sessions, there was frequent disagreement between the committee members
and Terpe and Colls of the SIU in respect to the contract proposals . Sometime
during this period of negotiations , SIU sent a postal money order for $50 to the
five committee members for their expenses in connection with the bargaining ses-
sions. On April 7, they returned the money order to Terpe with the following letter:
Enclosed we are returning postal money order for $50 that you sent us as
assistance for being members of the negotiating committee at Simmons.-You
informed us that this assistance was for the five of us and that you could
not assist the strikers because the strike was one of the workers and not of
the SIU.-We have to state that if there is no assistance for all our fellow
workers there must not be any for the five of us. We are starving and we are
all needy. That is why we cannot accept the $ 10 assistance given us.34
After April 7, the committee members did not attend any further bargaining
sessions between SIU and Simmons . The reason for their nonattendance , according
to Garcia, was that SIU "didn't want to help the committee members at those meet-
ings" in respect to their contract proposals . Thereupon, SIU and Simmons promptly
concluded a contract on April 9 and it was executed on April 10. SIU made no
further effort, either before or after the contract was consummated, to effect the
reinstatement of the five committee members. Moreover, although all but two of
the employees whom SIU represented were still on strike, the contract executed
by SIU contained a no-strike clause without any reference to the strike then in
31 Contrary to this testimony , in the earlier CC case, Terpe testified that the committee
members refused his request to tell the workers to end the strike , another illustration of
his lack of veracity
32 Case No 24-CA-1133 ( not published in NLRB volumes).
33 Case No 24-CA-1138 ( not published in NLRB volumes).
34 The strikers had voted during the strike to authorize the payment of $7 a week in
strike benefits out of the Mattress Workers' treasury . At the time of the hearing in the
CC case, the Mattress Workers' treasury had about $5 left.
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
progress. Instead, S1U joined Simmons in proceeding against rthe committee and
the strike as hereinafter described.
F. Events after the execution of the contract between Simmons and SIU
On April 15, Simmons withdrew its refusal-to-bargain charge against SIU 35 and
amended its Section 8(b),(4) (C) charge in Case No. 24-CC-60, to include Garcia,
Burgos, and Aviles-Padilla as agents of the committee and Local 901 of the Team-
sters. The amended charge also alleged that the strike then in progress was in
violation of Section 8(b)(4)(C). Simultaneously therewith, Terpe, on behalf of
SIU, filed an identical charge against the committee, its members, and the Teamsters
in identical language.36
On April 15, Simmons also placed an advertisement in the newspaper "El
Imparcial" announcing that it was "resuming its operations" and "offering work."
None of the strikers applied for reinstatement. However, about a dozen other
applicants, including five or six furnished by SIU, were hired by Simmons on about
April 20, but quit within a half to a few hours because they did not want to be
strikebreakers.
On April 28, the General Counsel obtained an injunction in the United States
district court enjoining the strike and picketing of Simmons' employees in pro-
test of the discharge of the five committee members. The injunction was based
on a finding by the court that there was "reasonable cause to believe" that the
strike then in progress was merely a continuation of the earlier strike of March
23, and that an object thereof was to force or require Simmons to recognize and
bargain with the committee notwithstanding that SIU was the certified representa-
tive of Simmons' employees. The injunction order was served on the pickets by a
United States marshal on the afternoon of April 28. Thereupon, the pickets were
immediately withdrawn.
At the time the strike was enjoined, the only employees working for Simmons
were the two maintenance workers who had worked throughout the 5 weeks of the
strike. When the injunction order was served, one of the strikers immediately ap-
plied for reinstatement to his old job and was rehired.37 On the following day,
April 29, four more strikers applied for work and were rehired.38 In the succeeding
day or two, Simmons also rehired six additional strikers, one of whom started to
work on April 30,39 and the balance on May 4.40 All 11 of the strikers who were
rehired were required by Simmons to make out an application for new employment
and were given new seniority from the date of such application. In addition to the
11 strikers whom it rehired, between April 28 and May 4 Simmons also hired 39
other employees. Of these, 1 started to work on April 28, 31 started on April
29, 1 on May 1, 4 on May 4, and 2 on May 5. Other than the rehired strikers,
none of the persons employed by Simmons between April 28 and May 4 had any
prior experience for the jobs for which they were hired, and no commitment was
made to them regarding the permanence of their employment.
On May 4, about 7: 30 a.m., a group of 11 strikers came to Simmons ' plant to
apply for reinstatement . 41 They asked Gentile for applications to return to work.
Gentile told them that he had run out of application blanks and that he had no need
for their services. According to Angel Luis Cintron , there were some persons, none
of whom had previously worked for Simmons, filling out applications for employment
at Simmons ' office at that time . Cintron testified that some of these persons were
86 See footnote 27, supra.
88 Case No 24-CC-61. Insofar as this charge alleged that the committee and its mem-
bers engaged in the March 23 strike to force Simmons to bargain with the committee
instead of SIU, it was directly contradictory to SIll's 8 ( a) (3) charge on behalf of the
committee members ( 24-CA-1138 ) which alleged that the March 23 strike was "in behalf
of" SIU.
37 Augusto Silva.
38 Antonio Rodriguez , Pablo Quinones, Justino Martinez , and another Antonio Rodriguez.
30 Pablo Hernandez.
40 Tiburcio Garcia, Asuncion Santiago, Arturo Santiago, Ventura Rivera, and Teofilo
Maldonado
41 Angel Luis Cintron, Mariano Vazquez, Daniel Ramos, Joachin Ramos, Ariel Morales,
Victor Isaac , Evangelico de Jesus, Ramon Cruz, Jose Villafane , Pedro Pacheco, and
Manuel Menendez.
SIMMONS, INC . 1051
subsequently employed by Simmons.42 After May 4, Simmons recalled and rehired
two additional strikers, to wit : Maria Serrano on May 22 and Antonio Gonzales on
May 27.
G. Concluding findings
1. The allegation of interference, restraint, and coercion
The General Counsel urges that Simmons violated Section 8(a)(1) of the Act
by Raffone's threat on March 20 to discharge employees on the slightest pretext if
the committee members did not agree to sign a contract that night . As to this issue,
apparently the Respondent 's only defense is that the threat was not uttered .43 I have
hereinbefore found that Raffone did make the threat. There can be no doubt that
such a threat interferes with, restrains , and coerces employees in their statutorily
protected right to engage in collective bargaining . Respondent's responsibility for
Raffone's conduct is not disputed . Accordingly, I find and conclude that by Raffone's
threat uttered to the committee members on March 20 , Respondent engaged in unfair
labor practices within the meaning of Section 8(a) (1) of the Act.
2. The allegation of violation of Section 8 (a) (3) of the Act based on the discharge
of the five committee members
The complaint herein also alleges and the General Counsel contends that the dis-
charge of the five committee members by Simmons violated Section 8(a)(3) of the
Act because it was based on their concerted activity protected by the Act. Conversely,
Respondent contends that the activity for which it discharged the five, the strike of
March 23, was an unfair labor practice on their part under Section 8(b) (4) (C) of
the Act, and therefore, not protected by the Act. Respondent further contends that,
even assuming the strike of March 23 was not an unfair labor practice within the
meaning of Section 8(b)(4)(C) of the Act, it was nevertheless an unprotected ac-
tivity because it constituted interference by a minority group with the collective bar-
gaining of the duly certified majority representative contrary to the purposes of the
Act.
As aforestated, the issue of whether the committee and its members committed an
unfair labor practice by their strike of March 23 within the meaning of Section
8(b) (4) (C) of the Act, has heretofore been considered and determined by the
Board and the Court of Appeals for the First Circuit 44 Accordingly, the initial
question presented herein is whether I am bound by either of the conflicting decisions
of the Board 45 or the court of appeals in the prior proceeding , or am free to make
my own findings in respect to the legality or illegality of the strike on the record
before me.46 The issue was in fact relitigated before me without objection by any
party ,47 and a complete record de novo was made. Although the record so made
42 Gentile denied that any of these persons, other than two strikers whom he did not
identify, were hired by Simmons. His testimony in this respect contradicts that of Cintron
and Evangelico de Jesus that the persons who were filling out application blanks on the
morning of May 4 were not strikers. Respondent's Exhibit No. 8 shows that two new
employees, Angel Silvagnoli and Miguel Sisamon, first started to work for Simmons on
May 5 Although the applications for employment of these new employees were available
to Respondent and necessary for it to show that they had applied and been hired prior
to May 4 when the strikers made unconditional application for reinstatement to their
former jobs, Respondent failed to produce the applications and offered no explanation for
its failure to do so Accordingly, I am compelled to the inference, which I now make,
that the applications if produced, would not support Gentile's testimony that the only
persons hired on May 4 were two returning strikers, and I credit the testimony of Cintron
that some nonstrikers who were applying on May 4 were subsequently employed by
Simmons See 2 Wigmore , Evidence ( 3d ed ), section 285
4" There is no reference to this issue in Respondent's brief.
44 See footnote 3, supra.
46 Cf. Insurance Agents' International Union, AFL-CIO (The Prudential Insurance
Company of America), 119 NLRB 768, 773; Novak Logging Company, 119 NLRB
1573, 1575.
49 Cf. United Brick & Clay Workers, et al. 'v. Deena Artware, Inc., 198 F. 2d 637, 642
(CA. 6)
47 Respondent was obviously not opposed to relitigating since the only decision then in
existence was that of the Board, adverse to Respondent's contentions.
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contains some documentary and other material evidence which was not before the
Board and the court of appeals in the prior case, and I have herein made a number of
credibility determinations and other findings which in the prior case were not re-
solved,48 the record in the two cases, though not identical,49 are not substantially
different.
In the CC case, the court of appeals, relying on the wording of the two telegrams
of March 23 and 24, the fact that Simmons' employees had not yet "fully joined"
SIU, the committee's objection to the recognition clause "naming SIU only," "and
to the checkoff clause under which SIU nand not `their treasury' (the Mattress Work-
ers' treasury) would receive the dues," concluded that the committee was a labor
organization whose conduct was not "compatible with integral affiliation" with SIU.
The court further concluded that by the strike and telegram of March 23, the com-
mittee "was declaring its independence of SIU," thereby implicitly holding that
an object of the March 23 strike was exclusive recognition of the committee for
bargaining.
On the record before me, I view the matters on which the court relied some-
what differently. I have found that Simmons' employees had joined and were mem-
bers of SIU. I regard the request of the committee for inclusion in the recognition
clause as one for joint recognition of SIU and Mattress Workers, a demand wholly
consistent with the affiliation of Mattress Workers, a local union, with SIU, an in-
ternational union, and with the committee's contract proposal that welfare fund
payments be made to SIU's welfare fund. I similarly regard the demand that the
dues checkoff should go to "their treasury." Since the revenue of International un-
ions like SIU is obtained from a per capita tax levied on local unions,50 such a demand
was wholly compatible with Mattress Workers' continued affiliation with SIU as a
local union. Finally, in view of the absence of any demand, either before or after
the March 23 strike, for exclusive recognition, its scheduled half-day duration, and
its prompt termination without "exclusive recognition" of the committee but only
on assurance that the committee and SIU would jointly negotiate with Simmons, I am
impelled to the same conclusion as the Board, that the March 23 telegram was an
"inartfully worded demand" of the committee for proper deference and status as
the negotiating arm of SIU in respect to Simmons' employees.51 As for the second
telegram upon which the court relied to conclude that the earlier one was a demand
for "exclusive" recognition of the committee, it must be remembered that it was
drafted by SIU's counsel, not the committee members, and that the latter were
factory workers, not lawyers, and that they were regarded by SIU as having de-
fected to the "enemy" Teamsters. In this context, I cannot believe as did the court,
that the telegram was intended either by Marcano, its draftsmen, or the committee,
to relegate SIU to a "subordinate" role in the negotiations.
Accordingly, if I were free to make my own findings on the record before me, I
would conclude that the committee was not a separate labor organization but an
integral part of SIU, notwithstanding their "divergent views" during the period from
March 20 to 23, and I would further conclude that the strike of March 23 was not
for either exclusive recognition, or even concurrent recognition with SIU as the
representative of Simmons' employees, but rather to protest the threats made to them
by Terpe and Raffone on March 20, and to require SIU to accord to the committee
and its contract proposals, proper deference and status as the negotiating committee
of SIU in the contract negotiations with Simmons. However since the court of ap-
48 E g , that Terpe's testimony is generally not trustworthy, that contrary to his testi-
mony, Simmons' employees were members of SIU; that on March 20, Raffone and Terpe
threatened the committee members with reprisals If they did not agree to sign the contract
that night; and that Terpe and Simmons had reached substantial agreement in the nego-
tiations before March 20 on all the terms of the contract, including monetary matters.
0 Here, as in the Deena Artware case, supra, the "witnesses in the two proceedings were
not the same. The cross-examination of some witnesses who testified in both proceedings
was not by the same attorney. Necessarily, the evidence produced in the different pro-
ceedings by such testimony was not identical "
50 See, Studies in Personnel Policy, No. 150, National Industrial Conference Board, Inc,
p. 29; Barbash, Labor Unions in Action, p 46
611 reach this conclusion notwithstanding that the telegram was drafted by Bosch, a
lawyer, because I believe that in the translation of the words from Spanish to English,
their true connotation was blunted and obscured.
SIMMONS, INC. 1053
peals in whose jurisdiction this case falls has concluded otherwise in the prior case,
I deem myself bound by its decision as the law of the case in respect to this issue.52
In the prior case , the court of appeals concluded that on March 23, the committee
and four of its members ,53 as agents of the committee , had engaged in and induced
and encouraged the employees of Simmons to engage in a strike which constituted
an unfair labor practice within the meaning of Section 8(b) (4) (C) of the Act.
There can , therefore , be no question regarding Simmons' right to discharge these
four employees 54 Accordingly , I shall recommend dismissal of the complaint insofar
as it alleges that Respondent 's discharge of Pacheco, Gambaro , Burgos, and Garcia
violated Section 8 ( a) (3) and ( 1) of the Act.
Simmons' discharge of the fifth committee member, Aviles-Padilla , stands, how-
ever, in a different posture. On Friday , March 20, he had been given permission
by his supervisor at Simmons to take off the following Monday, and he had left .the
plant on Friday at 2 p .m., and, with a friend, had gone on a trip to Mayaguez , Ponce,
and other places on the island , from which he did not return to his home until Monday
evening, March 23. Thus, he did not participate with the other committee members,
either in the meeting with SIU officials on March 20, the bargaining sessions with
Simmons that afternoon and evening , in the press release on March 21, or in the
strike and telegram to Simmons on March 23. Indeed , there is no testimony in
this record that Aviles-Padilla was aware before he left the plant on March 20,
that any of the foregoing events were scheduled or contemplated . There is, more-
over, no testimony in the record that he ever subsequently ratified or approved the
strike, or that the other committee members were authorized to engage therein as
his agent . On the contrary , the record is uncontradicted that he did not even know
that the strike had occurred until Tuesday morning, March 24 , after the strike was
over.55
As hereinbefore found, on March 24 , Aviles-Padilla was discharged by Respond-
ent, allegedly because he was a member of SIU 's negotiating committee whose other
four members had engaged in and induced the "illegal" strike of March 23. Re-
spondent had no reasonable basis for believing that Aviles-Padilla had anything to
do with the strike, since , as aforestated , he had not attended the negotiation meet-
ing with Simmons on March 20, had not signed the press release , was not at the
plant when the strike occurred , and had been given permission by his supervisor to
take the day off on March 23. In fact, Respondent 's General Manager Gentile
admitted that he was not even aware that Aviles-Padilla was a member of the com-
mittee until the latter appeared in his office on March 24 in response to Gentile's
instructions to his superintendent that all the committee members be sent to him.
It is, therefore, quite obvious that since Respondent could not reasonably have be-
lieved that Aviles-Padilla had engaged in or was responsible for the "illegal" strike,
it did not discharge him for that reason . Accordingly , the only possible remaining
reason for his discharge would be that as a member of the committee , he was some-
how responsible for the "illegal" strike of the other committee members. However,
the Board has rejected the contention that an employee who is a member of a union
committee is responsible for strike misconduct of other members of the committee,
absent evidence of his participation therein . 56 Thus , all that remains is that Aviles-
Padilla was discharged because of his membership in the committee. The court
of appeals in the prior case held that the committee was a labor organization. A
fortiori, the discharge of Aviles-Padilla for being a member of the committee neces-
sarily discouraged membership therein and, therefore, violated Section 8 ( a)(3) and
(1)' of the Act.
Moreover, even if the committee is not regarded as a labor organization, but
only as an integral part of SIU whose function , as I have found, was to draft con-
tract proposals and to negotiate with Simmons , membership therein was a type of
union and concerted activity which is protected by Section 7 of the Act.57 Accord-
52 Cf. U & Me Transfer, et al., 119 NLRB 852, 859, footnote 11; H. N. Thayer Company,
115 NLRB 1591, 1595.
Pacheco, Gambaro, Burgos, and Garcia.
84 N.L.R.B. v. Fansteel Metallurgical Corporation, 306 U.S. 240, 256, 259.
' In the prior case, the other Trial Examiner, the Board, and the court of appeals, in
agreement with these findings, all concluded that Aviles-Padilla had not engaged in any
conduct violative of Section 8(b) (4) (C) of the Act.
se The Patterson-Sargent Company, 115 NLRB 1627, 1630.
57 Nu-Car Carriers, 88 NLRB 75, enfd . 189 F. 2d 756 (C.A 3).
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ingly, the discharge of Aviles-Padilla for engaging in such protected union and con-
certed activity interfered with, restrained, and coerced employees in the exercise
of rights guaranteed by the Act, in violation of Section 8(a)(1) of the Act. In either
case, the remedy for the violation would be the same.
Furthermore, even if Respondent, contrary to' my conclusion above, discharged
Aviles-Padilla in the "honest" but nevertheless mistaken belief that he was also re-
sponsible for the "illegal" strike, it would not affect my conclusion that Respondent
thereby violated Section 8(a)(3) and (1) of the Act58 The Rubin Bros. principle
has been consistently followed by the Board,59 notwithstanding that the Court of
Appeals for the Fifth Circuit refused to enforce the Board's order in that case.60
Moreover, a number of other courts of appeal have expressed approval of this
Board principle.81 In Industrial Cotton Mills, supra, the court said:
As we view the situation, the statutory protection extended to a blameless em-
ployee is a firm and clear guarantee, not one which constantly varies with the
correctness of the employer's opinion or with the accuracy of his sources of
information. Nor does the Act expose the innocent employee to the hazard of
his employer's mistake where the consequence of this mistake is to divest the
employee of a right guaranteed by the Act.
And in Cusano v. N.L.R.B., supra, the court said:
To adopt the petitioner's view would materially weaken the guarantees of the
Act, for the extent of employees' protected rights would be made to vary with
the state of the employer's mind. We conclude that if the conduct giving rise
to the employer's mistaken belief is itself protected activity, then the employer's
erroneous observations cannot justify the discharge. [Emphasis supplied.]
Since the activity for which Aviles-Padilla was discharged was membership in the
committee, a protected activity guaranteed to employees by the Act, it is therefore
immaterial that Gentile may have mistakenly believed that Aviles-Padilla was also
responsible for and participated in the "unlawful" strike of March 23. Accordingly,
I conclude that Respondent's discharge of Aviles-Padilla was an unfair labor prac-
tice within the meaning of Section 8(a)(3) and (1) of the Act 82
3. The discharge and/or failure and refusal to reinstate 19 strikers
As aforestated, the complaint herein also alleges that Respondent discharged
and/or refused to reinstate 19 additional employees because they had participated
in the strike to protest the discharge of the 5 committee members which began
on March 25.
At the time the second strike was enjoined on April 28, Respondent had in its
employ only the two maintenance employees who had worked throughout the strike.
Immediately thereafter Respondent rehired 11 of the striking employees but re-
quired them to make application as new employees and withdrew their seniority
acquired with Respondent prior to the strike.63 As hereinbefore found, on May 4,
se Rubin Bros Footwear, Inc, et al, 99 NLRB 610.
w Hill & Hill Truck Line, Inc., 120 NLRB 101; KARD-TV, 122 NLRB 222,226; Jackson
Tile Manufacturing Company, 124 NLRB 218, 235.
w 203 F. 2d 486
m Cusano, d /b/a American Shuffleboard Co. v. N L R.B., 190 F. 2d 898, 902 (C.A 3) ;
Halt River Valley Water Users' Association v. N L R B., 206 F 2d 325, 329 (C A. 9) ;
N.L R B. v. Industrial Cotton Mills, 208 F. 2d 87, 90-93 (CA 4)
62 In so concluding , I reject as without any substance or merit, the contention in Re-
Hpondent's brief (p. 20) that the failure of Aviles-Padilla to protest his innocence of
participation or responsibility for the March 23 strike at the time of his discharge was
"a tacit admission of his responsibility" therefor. Aviles-Padilla does not speak English
and testified in this case through an interpreter. According to Gentile, at the time he fired
the committee members, he spoke to them in English and then in Spanish said, "they were
fired for an illegal strike." Aviles-Padilla had started to work at 6 a m. on the day of
his discharge and had not even heard about the strike until 7:25 a m , 5 minutes before
he was fired. Without knowledge of any of its details or the legal implications of the
strike, his failure to disassociate himself from the other committee members or to con-
tradict Gentile, who rarely even spoke to him, does not, in my opinion, constitute an
admission of responsibility or participation in the strike, especially where, as here, the
record clearly shows the contrary and the absence of any reasonable belief on Gentile's
part of any guilt on the part of Aviles-Padilla.
08 No allegation of the complaint is directed to this action of Respondent. I shall, there-
fore, make no finding based thereon.
SIMMONS, INC. 1055
11 additional strikers applied for reinstatement but were refused reemployment
allegedly because all of them had been permanently replaced before that date. Con-
trary to this contention, I have found that at least two new employees were hired
by Respondent after May 4. Of the remaining eight alleged discriminatees, the
record shows that two, Arturo Santiago and Ventura Rivera, were rehired by Re-
spondent on or before May 4, and two others, Maria Serrano and Antonio Gonzalez,
were reemployed by Respondent later in May. The General Counsel produced no
proof that any of these four applied for reinstatement at any time before they were
rehired, or that the remaining four ever applied for reemployment. Accordingly,
I shall recommend dismissal of paragraph XV of the complaint as to these eight
employees.
In the prior case, Simmons contended that the second strike was also in violation
of Section 8(b) (4) (C), but the court of appeals, in agreement with the Board and
the other Trial Examiner, concluded that "this matter was found against it on ade-
quate evidence." My own appraisal of the record compels the same conclusion,
that the sole object of the second strike was to protest the discharge of the five
committee members. Insofar as this strike was to protest Simmons' lawful discharge
of Pacheco, Gambaro, Burgos, and Garcia, it was, at the least, an economic strike 64
As economic strikers, Simmons' striking employees continued to remain "employees"
within the meaning of Section 2(5) of the Act, a status inconsistent with Respond-
ent's requirement that they fill out application for new employment and with its
withdrawal of their previously acquired seniority. When asked to explain Respond-
ent's conduct in this regard, Simmons' General Manager Gentile at first testified that
all the striking employees had been permanently replaced before the strike was
enjoined on April 28. However, he subsequently conceded that he was in error in
this regard and that, as found above, there had been no replacement of any of the
strikers at that time. Gentile then testified that it was Respondent's "official posi-
tion" that all the strikers had "quit" when they did not respond to its advertisement
on April 15 that it was "resuming its operations" and "offering work." However,
he later admitted that none of the strikers had evinced, either orally or in any
other manner, an intention to "quit" their employment with Respondent, and that
their strike and picketing was inconsistent with any such abandonment of their jobs.
The only other possible explanation for Respondent's requirement that the return-
ing strikers apply as new employees with new seniority is that Respondent, without
notice, discharged the strikers when they failed to abandon the strike and return to
work in response to Respondent's advertisement. Moreover, this conclusion is
consistent with the fact that at that time Respondent regarded the strike then in
progress as unlawful under Section 8(b) (4) (C) of the Act, and that, therefore, it
was free to discharge the participants therein. In this connection, it is significant
that on April 15, the very day that Respondent advertised that it was "offering
work," it filed an amended charge with the Board alleging that the strike then in
progress violated Section 8(b) (4) (C), that SIU simultaneously filed an identical
charge, thus indicating the latter's cooperation and concurrence with Respondent,
and that on April 28, before any employees were hired, the strike was enjoined on
that ground. For all the foregoing reasons, including Gentile's inconsistent and
implausible explanations for treating the returning strikers as new employees, I
conclude, notwithstanding Gentile's denial, that on or about April 15, Respondent
discharged all the striking employees for participation in what it regarded as an
illegal strike. Since, as hereinbefore found, the strike was a protected concerted
activity on the part of Respondent's employees, their discharge therefor was an un-
fair labor practice by Respondent within the meaning of Section 8(a) (3) and (1)
of the Act.65
I have thus far only considered the second strike from the standpoint that it was
in protest over the lawful discharge of four of the five committee members. How-
ever, this strike was also in protest over the discharge of Aviles-Padilla whose dis-
missal, I have found, was an unfair labor practice by Respondent within the mean-
ing of Section 8(a)(1) and (3) of the Act. Thus, insofar as the strike was in
protest of the discharges of Aviles-Padilla, it was an unfair labor practice strike, and
°SN.L.R.B. v. J. I. Case Company, Bettendorf Works, 198 F. 2d 919 (C.A. 8), cert
denied 345 U S. 917; N L.R B. v. Globe Wireless , Ltd, 193 F 2d 748 (C A. 9) ; N.L R B v
Peter Cailler Kohler Swiss Chocolates Company, Inc ., 130 F. 2d 503 (C .A. 2) ; Carter
Carburetor Corporation v. N L.R .B., 140 F. 2d 714 ( C.A. 8) ; John S. Swift Company, Inc,
124 NLRB 394.
es See cases cited In footnote 04, supra. In reaching this conclusion, I have deferred
the consideration of certain contentions of Respondent which shall be set forth and
determined hereinafter.
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the fact that the strike was also economic in part did not deprive the strikers of their
rights as unfair labor practice strikers . 66 As the Board said in the Happ Brothers
case, supra, where the employees struck to protest the nondiscriminatory dismissal
of one employee as well as the discriminatory discharge of two others:
Under well settled principles , the strikers assumed the role of unfair labor
practice strikers , whether or not Yarborough 's dismissal, which is not charged
to be discriminatory , was also a cause of the strike . As unfair labor practice
strikers , they were not vulnerable to discharge because they were replaced... .
Accordingly, when 11 of the strikers unconditionally offered to return to work on
May 4 after the second strike was enjoined , they were entitled to reinstatement
regardless of whether , in the interim , their jobs had been filled by replacements.67
Accordingly , I find and conclude that by refusing to reinstate the unfair labor prac-
tice strikers who offered unconditionally to return to work on May 4, Respondent's
action "was clearly in derogation of the strikers ' statutory rights and constituted a
violation of Section 8 (a) (3) and ( 1) of the Act." 68
There remains for consideration certain contentions of Respondent advanced in
defense of its refusal to reinstate the striking employees who applied unconditionally
to return to work on May 4.
Respondent first contends that as a consequence of its execution during the second
strike of a contract with SIU , containing inter alia, a no-strike clause, the continuation
of the strike thereafter was in breach of the contract and an unprotected activity.
Accordingly , Respondent argues that it had the right to discharge or to refuse to
reinstate "any of the strikers" for engaging in such unprotected activity . I reject
this contention of the Respondent as without merit . I have found above that the
strike which began on March 25 was an unfair labor practice strike since it was
engaged in, inter alia, to protest the discriminatory discharge of Aviles-Padilla.
Accordingly , even assuming that the no -strike clause was applicable to the strike
which was in progress at the time the contract was executed , the right of the strikers
to protect Respondent 's unfair labor practice in discharging Aviles-Padilla could not
be affected unless the no-strike clause in question included an "explicit " waiver of
"strikes against such unfair labor practices ." 69 I find no such "explicit" waiver of the
right to strike in protest over unfair labor practices in the contract between Simmons
and SIU.70
Moreover , equitable considerations compel the conclusion that the no-strike clause
in Respondent's contract with SIU did not apply to or affect the lawful nature of
the strike . Significant in this regard is the fact that there was no contractual prohibi-
tion to strike when the employees commenced their lawful strike,to protest the
discharge of the five committeemen , and they were never thereafter advised that the
contract which had been executed between Simmons and SIU contained a no-strike
clause or that the continuation of the strike would place their job rights in jeopardy.
Nor was this a case where Respondent could reasonably assume that the nature of the
contract and its provisions would be made known to the employees by SIU. To the
contrary, Respondent knew , not only that SIU had not authorized or sanctioned the
strike, but also that in cooperation with it , SIU had filed a charge with a view to the
subsequent injunction of the strike , alleging it to be unlawful under Section 8(b)
(4) (C) of the Act . Indeed , the very execution of the contract by SIU with a no-
strike clause which made no reference to the existing strike , in which practically
all of the employees which SIU purported to represent were then engaged , is capable
only of two inferences : ( 1) that the current strike was not contemplated to be
included within its terms; and (2) that SIU was acting contrary to the interests of
the very employees who had brought about its certification . Although the latter
inference is not without some support in the record , I am inclined to the conclusion
that the parties did not contemplate that the clause applied to the then current strike
because the record shows that Respondent did not rely on it either when it hired some
B° N.L.R B. v. Remington Rand, Inc , 94 F. 2d 862, 872 (CA 2), cert. denied 304 U.S
576 and 589 ; N.L R B . v. Stackpole Carbon Company, 105 F. 2d 167, 175-176 (CA. 3),
cert denied 308 U.S. 605; Happ Brothers Company, Inc , 90 NLRB 1513, 1515, reversed
on other grounds 196 F. 2d 195 (C.A. 5).
67 Lewin -Mathes Company, Division of Cerro de Pasco Corporation , 126 NLRB 936, 940 ;
Butler Knitting Mills , Inc, 127 NLRB 68; Barney's Supercenter, Inc, 128 NLRB 1325
es Happ Brothers Company, supra. In view of this conclusion , the four alleged dis-
criminatees , in respect to whom there was no proof of application for reinstatement, are
also entitled to reemployment upon application therefor. I shall so provide hereinafter
°° Mastro Plastics Corp. v. N L.R.B , 350 U.S. 270.
70 See article III, General Counsel's Exhibit No . 6, in Cases Nos. 24-CC-60 and
24-'CC-61.
SIMMONS, INC. 1057
or refused to reinstate others of the striking employees . Moreover, I know of no
case precedent in which a no-strike clause executed under circumstances such as
existed here was held to be breached by the continuation of a strike without knowl-
edge of its existence . Since I regard the consequence of such a holding to be in-
equitable and unjust , I reject the obvious afterthought contention of Respondent,
raised for the first time at the hearing herein , that the continuation of the strike after
the execution of the contract rendered the strikers subject to discharge and/or
refusal of reinstatement to their jobs.
Respondent also contends that as a consequence of certain alleged violence on
the picket line, the remedy of reinstatement should be denied to three of the strikers,
Pedro Pacheco,71 Joachin Ramos , and Daniel Ramos , and to Aviles-Padilla. The
alleged picket line violence occurred on two occasions , April 7 and 22 . I shall con-
sider these incidents seriatim.
According to Isidor Morales, a salesman employed by Simmons, on April 7
about 3 to 3:30 p .m., Superintendent Mike Seery was on the street in front of
Simmons' plant directing the truck of a customer that was backing up to the loading
platform, when one of the pickets, Pedro Pacheco , without any apparent provoca-
tion, struck him in the back with the wooden handle of his picket sign , and thereupon,
two other pickets, Joachin Ramos and Daniel Ramos, father and son, joined the
attack on Seery, the father hitting Seery with a stick or branch , and the son with
his fist. Morales testified that Seery grabbed Pacheco around the throat to utilize
Pacheco's body as a shield from the blows of the two Ramoses which , nevertheless,
continued until the police , who were nearby , "freed Mike Seery from the group that
were attacking him." Pacheco and the two Ramoses were taken into custody by
the police . The record does not disclose whether or not they were charged with
or convicted of any infraction of the law. On cross-examination, Morales gave a
somewhat different version of the incident , to wit, that Ramos and his son did
not intervene in the fight between Pacheco and Seery until after the latter grabbed
Pacheco by the throat . The latter version is consistent with a photograph of the
incident 72 that was made by Wilfred Sykora, Respondent's sales manager , who had
a camera with him at that time. That photograph, obviously made before the inter-
vention of the two Ramoses, shows Seery with his arms around Pacheco 's throat, and
Joachin Ramos about 4 feet away, apparently carrying an upraised stick. Daniel
Ramos is not shown in this photograph, and thus, had not yet reached the scene of
the disturbance . From the foregoing , it is therefore quite obvious that Morales'
testimony that Seery was attacked by Pacheco , Joachin Ramos , and Daniel Ramos,
and that he grabbed Pacheco 's throat in order to shield himself from the blows
of the two Ramos until "freed" by the police, is not credible. Joachin Ramos and
Daniel Ramos testified that Seery started the fight by jumping down from the
loading platform and grabbing Pacheco by the throat , and that they intervened for
the purpose of separating the combatants . Both Ramoses denied striking Seery.
Joachin Ramos , who is 63 years old and weighs 104 pounds , testified that he was
across the street when the fight began and intervened only to extricate his son
from the melee.
In my opinion , the credibility of all three of the witnesses , Morales and the two
Ramoses, is suspect 73 Moreover , all of the witnesses gave the unlikely testimony
that nothing was said by any of the participants , either to provoke the fight or during
its progress . Significantly , neither of the principal combatants , Seery nor Pacheco,
who could have shed light on what provoked the fight , and who was the aggressor,
testified. In view of the absence of their testimony , and my lack of belief in the
testimony of Morales and the two Ramoses, I regard the record as inconclusive
in respect to who was the aggressor, and what provoked the fight . Accordingly,
I conclude that Respondent has not by a preponderance of the credible evidence
71 This is not the same person as Miguel Pacheco Cintron who was a member of SIU's
bargaining committee.
71 Respondent 's Exhibit No 5.
73 Morales ' credibility is suspect because of the inconsistent versions of the incident
given on direct and cross-examination and because he denied giving a statement to the
Board, whereas the General Counsel's representative in the CC case stipulated to the con-
trary. Moreover, his testimony regarding how he remembered the exact date of the second
incident was likewise implausible . I similarly regard the testimony of Joachin Ramos
and Daniel Ramos. Both were reluctant to identify themselves and each other in the
photographs of the incident . Moreover , the photograph which shows Joachin but not
Daniel makes it unlikely that Joachin was across the street when the incident began, or
that he intervened merely to extricate his son
630849-62-vol. 134-68
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
established that Pacheco is not entitled to reinstatement because of this incident. In
respect to the two Ramoses, although it is clear that they intervened in the fight
after it began, I likewise conclude that the credible record is insufficient to establish
that they did more than attempt to separate the combatants. Accordingly, Re-
spondent has not borne its burden of showing that by reason of their participation
in this incident they are not entitled to reinstatement.74
The second incident of picket line violence allegedly occurred on April 22.
According to Respondent's then sales manager, Wilfred Sykora, he was taking a
photograph of the general scene in front of Simmons' plant, when he was pushed by
one unidentified person and then struck in the mouth by the fist of another person
whom he later identified as striking employee Otilio Fernandez. Sykora sustained
an "internal cut" in his cheek from the blow administered by Fernandez which
he characterized as "not serious." Fernandez did not testify. According to Sykora,
about a month later, Fernandez asked Sykora "to forgive him for what he had
done," saying, "he had nothing personally against him." Sykora testified that he
accepted the apology and "that ended the incident." Isidor Morales, who also
testified for Respondent regarding the alleged assault on Seery identified the person
who "pushed" Sykora as Aviles-Padilla, the employee whose discharge by Respond-
ent I have heretofore found was an unfair labor practice. Aviles-Padilla denied
that he ever pushed Sykora and testified that he was across the street "not even
close to Sykora" when the incident occurred. Respondent did not refuse reinstate-
ment to Fernandez on this ground. In view of the lack of importance attached to
the incident by Sykora, the person directly involved, and by Respondent, I do not
regard this incident as establishing such misconduct on the part of Fernandez as
to render him ineligible for reinstatement. Insofar as Aviles-Padilla's participation
in the incident, I, as aforestated, do not regard Morales' testimony as reliable, and
I credit Aviles-Padilla's denial of participation therein. Moreover, his alleged
misconduct, that of pushing Sykora, is not in my opinion of sufficient gravity to
render him ineligible for reinstatement.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of'the Respondent described in section 1, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burdening and obstructing
commerce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I shall recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Filiberto Aviles-Padilla was discriminated against in respect to
his hire and tenure of employment, I shall recommend that the Respondent be
ordered to offer him immediate and full reinstatement to his former or substantially
equivalent position, without prejudice to his seniority and other rights and privileges,
and make him whole for any loss of earnings he may have suffered because of the
discrimination against him, by payment of a sum of money equal to the amount he
normally would have earned as wages from the date of his discharge to the date of
the offer of reinstatement, less his net earnings during said period, with backpay
computed on a quarterly basis in the manner established by the Board in F. W.
Woolworth Company, 90 NLRB 289, 191-294.
Having further found that the strike of Respondent's employees which began on
March 25 was caused by and resulted from Respondent's unlawful and discrimina-
tory discharge of Filiberto Aviles-Padilla, and that the striking employees were
unfair labor practice strikers entitled upon application to immediate reinstatement,
and that 11 of them unconditionally applied for but were denied such reinstatement
on May 4, 1959,75 I shall recommend that Respondent be ordered to offer these 11
employees immediate and full reinstatement to their former or substantially equiva-
lent jobs, without prejudice to their seniority and other rights and privileges, and
make them whole for any loss of earnings they may have suffered because of the
discrimination against them by payment of a sum of money to each equal to the
amount he would normally have earned as wages from May 4, 1959, to the date of
74 Although not significant to my conclusion, I note that on May 4, when Pacheco and
the two Ramoses applied for reinstatement to their former jobs, Respondent did not assert
this incident as the reason for Its refusal to reemploy them.
13 See footnote 41, supra.
SIMMONS, INC. 1059
the offer of reinstatement, less his net earnings during said period, with backpay
computed quarterly in the manner established by the Board in F. W. Woolworth
Company, supra.
Of the eight remaining strikers alleged in the complaint herein as discriminatees
the record shows that four have been reinstated by Respondent and that as to the
remaining four,76 there was no proof that application for reinstatement had been
made. In respect to the latter four, I shall recommend that the Respondent shall,
upon application, offer them reinstatement to their former or substantially equiva-
lent positions, without prejudice to their seniority or other rights and privileges, dis-
missing, if necessary, any new employees hired on or after March 25, 1959, and
make them whole for any loss of pay they may suffer by reason of Respondent's
refusal to reinstate them, if any, by payment to each of them of a sum of money
equal to that which he normally would have earned as wages during the period
from 5 days after the date on which he applied for reinstatement to the date of
Respondent's offer of reinstatement, with loss of pay computed on a quarterly basis
as hereinabove provided.
I shall also recommend that the Respondent make available to the Board, upon
request, payroll and other records to facilitate the determination of the amounts due
under this recommended remedy.
In view of the nature of the unfair labor practices committed, the commission of
similar and other unfair labor practices reasonably may be anticipated. I shall
therefore recommend that the Respondent be ordered to cease and desist from in any
manner infringing upon the rights guaranteed to its employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Seafarers International Union of North America, Atlantic and Gulf District,
Puerto Rico Division, AFL-CIO, is a labor organization within the meaning of
Section 2 (5) of the Act.
2. Comite de Empleados de Simmons, Inc. (also known as Comite de Negociaci-
ones de los Empleados de la Simmons, Inc.), was on March 20 to 24, 1959, a labor
organization within the meaning of Section 2(5) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Filiberto
Aviles-Padilla, thereby discouraging membership in Comite de Empleados de Sim-
mons, Inc. (also known as Comite de Negociaciones de los Empleados de la Sim-
mons, Inc.), and encouraging membership in and adherence to the policies of
Seafarers International Union of North America, Atlantic and Gulf District, Puerto
Rico Division, AFL-CIO, Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(3) of the Act.
4. By discriminating in regard to the hire and tenure of employment of Angel
Luis Cintron, Mariano Vazquez, Daniel Ramos, Joachin Ramos, Ariel Morales,
Victor Isaac, Evangelico de Jesus, Ramon Cruz, Jose Villafane, Pedro Pacheco, and
Manuel Menendez, thereby encouraging membership in and adherence to the policies
and directives of Seafarers International Union of North America, Atlantic and
Gulf District, Puerto Rico Division, AFL-CIO, Respondent has engaged in unfair
labor practices within the meaning of Section 8 (a) (3) of the Act 77 .
5. By its conduct set forth in Conclusions of Law, numbered 3 and 4, above, and
by threatening employees with discharge for failure to agree to the terms of a pro-
posed collective-bargaining agreement, Respondent has interfered with, restrained,
and coerced employees in the exercise of rights guaranteed in Section 7 of the Act
and thereby has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a)( I) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce.
7. The General Counsel has not sustained the burden of proof of paragraph XIII
of the complaint in respect to Miguel Pacheco Cintron, Angel Luis Gambaro, Juan
A. Garcia, and Jose C. Burgos.
8. The General Counsel has not sustained the burden of proof of paragraph XV
of the complaint in respect to Arturo Santiago, Ventura Rivera, Maria Serrano,
Antonio Gonzalez, Jose A. Villafane, Otilio Fernandez, Manuela Soto, and Rafael
Marrero.
[Recommendations omitted from publication.]
76 Jose A. Vallafane, Otillo Fernandez, Manuela Soto, and Rafael Marrero.
77 Cf. The Radio Officers' Union etc. (A. H. Bull Steamship Company) v. N.L.R.B.,
347 U.S. 17.