Teamsters, Chauffeurs, Etc., Local 901

National Labor Relations Board - Board Decisions

Dec 1, 1961

134 N.L.R.B. 895 (N.L.R.B. 1961)

TEAMSTERS, CHAUFFEURS, ETC.; LOCAL 901 895
At best then , standing alone , the General Counsel 's evidence would make.out
a prima facie case that the discharge , made because of Soskel 's engagement in pro-
tected concerted activities, was violative , not of Section 8(a)(3), but of Section
8(a)(1), because it was reasonably calculated to interfere with, restrain , and coerce
employees in the exercise of rights guaranteed by Section 7 of the Act.
Respondent 's evidence overcame that prima facie showing, establishing by a
clear preponderance that it discharged Soskel , pursuant to a decision long since
arrived at, because of his incompetence , and at a time when the anticipated seasonal
slack had materialized . As found above ( footnote 2), not only were the General
Counsel's attacks on the bona fides of Respondent 's evidence based only on suspi-
cion , but Sosa's testimony itself went far to underwrite the genuineness of Respond-
ent's claims.
When Respondent 's evidence was concluded , only the timing of the discharge
and Taylor 's remark about Soskel freeing the Cubans remained as suspicious cir-
cumstances suggestive of unlawful intent. But aside from the fact that suspicion is
not proof and that the General Counsel must prevail by a preponderance of the
evidence on the record as a whole, Respondent 's evidence largely refuted the suspi-
cious force of those circumstances . Thus Respondent 's officers had decided on
March 20 that the time had come to separate Soskel . Though Sosa was called in
after Soskel posted his notice , Sosa was again informed that Soskel was to be dis-
charged, and for the same reasons which Sosa had known of since February 27.
I therefore conclude and find that the General Counsel failed to establish by a
preponderance of the entire evidence that Respondent 's discharge of Soskel was
an unfair labor practice under either Section 8 (a)(1) or (3).
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSION OF LAW
Respondent has not engaged in unfair labor practices as alleged in the complaint.
[Recommendations omitted from publication.]
Teamsters, Chauffeurs , Warehousemen & Helpers, Local 901,
IBTCW & H of America and Editorial "El Impartial," Inc.
Case No. 24-CC-67. December 1, 1961
DECISION AND ORDER
On March 22, 1961, Trial Examiner A . Norman Somers issued
his Intermediate 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 and was not engaging in certain other
unfair labor practices and recommended that those allegations of the
complaint be dismissed . Thereafter the General Counsel and the
Respondent filed exceptions to the Intermediate Report and briefs in
support thereof.
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 Intermedi-
ate Report , the exceptions and briefs , and the entire record in the
134 NLRB No. 83.
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations.'
ORDER
The Board adopts the Recommendations of the Trial Examiner with
the modification that provision 2(c) read : "Notify the Regional Di-
rector, Twenty-fourth Region, in writing, within 10 days from the date
of this Order, what steps the Respondent has taken to comply here-
with." 2 The Board further orders that the complaint be dismissed
to the extent recommended by the Trial Examiner.
1 We reject the contentions of our dissenting colleague for the reasons set forth in the
majority opinions in International Brotherhood of Teamsters , Chauffeurs, Warehousemen
and Helpers of America , Milk Drivers and Dairy Employees , Local 537 (Jack M. Lohman,
d/b/a Lohman Sales Company ), 132 NLRB 901 ; and Local 662, Radio and Television
Engineers , affiliated with International Brotherhood of Electrical Workers, AFL-CIO
( Middle South Broadcasting Co ), 133 NLRB 1698.
2 In the notice attached to the Intermediate Report as Appendix, the words "Decision
and Order" are hereby substituted for the words "The Recommendations of a Trial
Examiner " 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 "
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding was heard before A. Norman Somers, , the duly designated Trial
Examiner, in Santurce , Puerto Rico, on November 28, 29, and 30, 1960, on complaint
of the General Counsel and answer • of Respondent Union . The issue was whether
Respondent engaged in conduct violative of Section 8(b) (4) (i ) and (ii ) ( B) of the
Act,,as amended by the Labor-Management Reporting and Disclosure Act of 1959.'
On petition of the Regional Director in the U.S. District Court under Section 10(1)
of the Act, a restraining order pending this proceeding was issued against this Re-
spondent on October 27, 1960. Compton v. Local, 901 IBTCW & H of America,
U.S.D.C., P.R. Civil No. 249-260 (October 27, 1960). The General Counsel and
Respondent , through respective counsel , presented evidence and oral argument, and
Respondent has filed a brief. On consideration thereof; on the entire record, and
upon my observation of the witnesses , I hereby make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYERS
Editorial "El Impartial ," the Charging Party and the primary Employer in the
dispute out of which the events here in issue arose , is a Puerto Rican corporation.
It owns and publishes in San Juan a daily newspaper , in the Spanish language, called
El Impartial , which is the name by which we shall hereafter refer to this Employer.
The interstate business of El Imparcial , as stipulated and as found in prior Board de-
cision , of which official notice is here taken,2 show it to be in "commerce" and in
a business "affecting commerce" within the meaning of Section 2(6) and ( 7) of the
Act, and to an extent meeting the Board 's self-limiting standards for the assertion of
jurisdiction in this proceeding . The other employers are "persons" whom Respondent
Union is alleged to have sought to engulf in its dispute with El Impartial through co-
ercive means violating Section 8(b) (4) (i) or (ii ) (B). These consist of 11 business
establishments , 3 advertising agencies , and another newspaper publisher , all of whom
will be named as we reach their proper places in the narrative . = At this stage, it `is
found that all of them are "person [s] engaged in commerce or in an industry affecting
commerce" within the meaning of Section 8(b) (4) of the Act, the business establish-
ments having 'an annual inflow of materials or products from outside Puerto Rico
1 The pertinent portions of Section 8(b) (4) are set forth in footnote 4, below
a Teamsters , Chauffeurs, Warehousemen and Helpers , Local 901 , IBTCW d H of America
(Editorial "El Impartial," Inc.), 129 NLRB 1373; Editorial "El Impartial," Inc., 123
NLRB 1585 , 1592-1593.
TEAMSTERS, CHAUFFEURS, ETC., LOCAL 901 897
exceeding $50,000 and the three advertising agencies and the newspaper publisher de-
riving incomes of over $50,000 a year for services to persons who either receive
products or materials from, or sell and distribute, them to, places outside Puerto Rico,
in excess of $50,000 annually?
II. THE LABOR ORGANIZATION INVOLVED
Teamsters, Chauffeurs, Warehousemen & Helpers, Local 901, IBTCW & H of
America, is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction: Origin of strike and nature of issue
The events here arose out of a strike called by Respondent Union against El Im-
parcial, which has been the subject of at least one other proceeding before the Board.
See Teamsters, etc., Local 901, IBTCW & H of America, supra footnote 2. No
consideration is given that case in connection with the determination of the merits
here. The legality of the primary strike is not before us; neither do we have the
question of which of these primary disputants was at fault as between themselves.
Presented before us is only the narrow issue whether Respondent Union, in trying
to enlist outside support in its dipute with El Impartial, resorted to measures in
violation of the "secondary boycott" provisions of 8(b) (4) (1) and (ii) (B) of the
Act.4
In briefest outline, the Respondent on May 26, 1960, called a strike against El
Impartial, which was joined by the latter's photographers and, very shortly there-
after, also by the composing and press room employees, as well as some employees
in the editorial department of El Imparcial. The strike closed down El Imparcial's
operations entirely for about 10 days, after which it resumed and has continued
operations, but on a lesser scale than before the strike.
The dispute took on acrimonious proportions when, about 10 days after its out-
break, Seafarers International Union, AFL-CIO "entered the picture." Violence
and police action ensued, after which Respondent denounced SIU for acting as
"strikebreakers" for El Impartial and accused the government of the Puerto Rican
Commonwealth of abetting this endeavor. Respondent then sought to reach El
Imparcial through persons advertising in El Impartial. All "persons" whom Re-
spondent is here charged with having illegally sought to involve in the dispute fall
into that category, except Star Publishing Corporation, publisher of a newspaper,
whose case will be treated separately.
B. The efforts to enlist the aid of establishments advertising in El Impartial
1. The talks with the three advertising agencies
About June 22, Respondent embarked upon a campaign to discourage businesses
from advertising in El Impartial. This was denied by the two representatives of the
Union who were put on the witness stand by the General Counsel-Frank Chavez,
its secretary-treasurer, and Humberto Trias, an organizer for the Union and assist-
3 Although all are engaged in commerce to an extent which would warrant the Board's
assertion of jurisdiction in a proceeding in which any of them were the only employer in
the case, nothing here is intended to suggest that that is necessary for a finding that
Respondent's overtures to any of them offended Section 8(b) (4) (1) or (11) (B) of the Act.
4 The pertinent portion of Section 8(b)(4) provides that,
It shall be an unfair labor practice for a labor organization or Its agents-
s s a a t • s
(1) to engage in, or to Induce or encourage any individual employed by any
person engaged in commerce or In an industry affecting commerce to engage In, a
strike or refusal in the course of his employment to use, . . . process. . . . or
otherwise handle or work on any goods, . . or perform any services ; or (it) to
threaten, coerce, or restrain any person engaged in commerce or in an industry
affecting commerce, where in either case, an object thereof is:
s s s e a a s
(B) forcing or requiring any person to cease using, selling, handling, trans-
porting, or otherwise dealing in the products of any other producer, processor,
or manufacturer, or to cease doing business with any other person . . . .
630849-62-vol. 134-58
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ant to Chavez.5 This denial need not detain us. The proof is overwhelming and
was established by the surrounding circumstances and credible testimony. These
include overtures made by Chavez and Trias in some instances personally and in
others by telephone. The conversations, as testified by the various persons ap-
proached were, in large part, not specifically denied. In the telephone calls, the
caller identified himself as either Chavez or Trias or as purporting to speak for
the Union, without identifying himself. The circumstances surrounding the calls,
including testimony of two persons, hereafter named, who were specifically engaged
and paid by Respondent to break windows pursuant to this antiadvertising campaign,
leave no doubt that every call purporting to come from Chavez or Trias, or from
the Union, was made from that source, as it is here found they were.
On or about June 22, the three advertising agencies named in the complaint,
as amended, were informed by Respondent that it was engaged in a crucial struggle
with El Imparcial, that a vital aid in its strike would be the cessation of all ad-
vertising in that paper, and that the various advertising agencies were being con-
tacted for the purpose of enlisting their "cooperation" by having them and their
clients cease their advertising in El Imparcial. Armando Rosado, president of
Universal Advertising Agency, was personally approached at that time by Or-
ganizer Trias,6 Leslie Higliley, president of Highley Advertising Company, was
called on the telephone by Secretary-Treasurer Chavez; and Harry R. Moll, vice
president of Publicidad Badillo, Inc., was spoken to, in a single telephone con-
versation, first by Tsias and then Chavez. Rosado of Universal, in his personal
conversation with Trias, said the decision rested with his clients; Highley, on the
telephone, told Chavez that he knew of no current strike and that he intended to
have his clients continue advertising in El Imparcial; and Moll of Publicidad, in the
same manner as had Rosado to Trias, said that he could only "advise" his clients
but that the decision lay with them. Nothing more was said in the personal
conversation between Universal's Rosado and Organizer Trias. Highley's response
evoked from Chavez the epithet, "son-of-a-bitch" and a threat to close his agency,
to place pickets in front of his office, and to "take care of [his] clients by order-
ing strikes against them " Moll of Publicidad was told by Chavez that Respondent
would publish 2,000,000 leaflets "exhorting the public not to buy the products
which were being advertised in the Imparcial during the strike," that it "would not
be good for [his agency's] clients if their names should appear on the leaflet," and
that the "general public was on the side of the Union and . . . would very definitely
follow this exhortation."
We defer consideration of whether and to what extent these direct appeals as
such were internally coercive apart from the extrinsic action taken to enforce them.
Before discussing this last, we summarize a second conversation with President
Rosado of Universal, which occurred in mid-September 1960. This was about a
month after windows in two stores of a client of Universal (Franklin Stores of
Puerto Rico) were broken in the early morning after the appearance of an ad
for it in El Imparcial. In this September conversation, Rosado, while driving his
car, was stopped by a car occupied by Trias and Respondent's public relations di-
rector, Virella. Virella said, "Look, don't you send any more ads to that old
man at El Imparcial [referring to its owner and publisher] because El Imparcial
is not circulating and you are following or betraying your clients." Rosado replied
that at that time he had no ads in El Imparcial Trias countered with, "Yes, you
have, I know you have ads in the Imparcial." The two then said they would "fix
[his] wagon," that they would inform Universal's clients "they were throwing away
their money, putting ads in the Imparcial because El Imparcial circulation was
very low."
2. The breaking of windows of establishments advertising in El Imparcial
It has been stated that windows of two stores of Franklin Stores of Puerto Rico,
Inc., a client of Universal, were broken in mid-August. This was in the early
morning of August 16, after Franklin, which operates a 'chain of retail women's
dress shops, ran an ad in the August 15 issue of El Imparcial announcing an
5 Trias testified as Humberto Trias Conde, but this last is the second, or maternal, sur-
name. Not all witnesses use it. Those who do, such as Trias, Armando Rosado Ferrer,
Ismael Santos Jorge, and Jose Arce Batista, are in ordinary conversations, mentioned by
their first, or paternal, surname. This will be done here, and the only surname which will
be used in referring to a witness will be his paternal one.
6 He was approached again, about 3 months later, by Trias and Frederico Virella, public
relations director for Respondent. This will be treated later.
TEAMSTERS, CHAUFFEURS, ETC., LOCAL 9 01 899
anniversary sale to be held August 16 . Similar damage was sustained by Puerto
Rico Home Appliances, Inc., a client of Highley, immediately after appearance
of an ad for it in El Imparcial. Moll of Publicidad, it should be mentioned, issued
a memorandum to his clients, advising them of the call and of the reference to the
Union's contemplated leaflet to the "general public." So far as appears, none of
the clients of Publicidad were molested and none- of them are named in connec-
tion with the alleged violation here in issue.
Other establishments than Franklin and Home Appliances also sustained broken
windows. Two of them had that experience twice in succession immediately after
putting an ad in El Imparcial in disregard of an earlier request by Respondent
to them to "cooperate." These were Goodyear Western, Inc , which has a retail
outlet for the products of Goodyear 7 and Borinquen Music Corporation, known
as Casa Wurlitzer, which sells musical instruments. Another establishment, Gomez
Hermanos, Inc., which sells cars, sustained broken windows twice, the first time
without prior request to "cooperate," the second after such a request was made on
the telephone by Trias to Ramon (Moncho) Gomez, a co-owner of the Gomez
business and a brother-in-law of Trias. This last incident was followed by a similar
request on the part of Trias to Mrs. Gomez , who is his sisters Volkswagen de
Puerto Rico, Inc., which deals in the European-made car by that name, sustained
a broken window on September 15, after the second of three weekly ads, beginning
September 8, appeared in El Impartial . Edwin I . Ofgant, its general manager, 4 days
after the breakage , was approached by Chavez at a restaurant and asked , "Why in
the hell [he was ] advertising in the G.D. El Impartial ." Ofgant explained that
the ads were run pursuant to a commitment by his predecessor before he took over
on September 1, and that with the chores confronting him, he had "not yet had
an opportunity to get into the advertising phases." Chavez told him he had a
strike and "these s.o.b.'s are giving me a hard time," and urging him not to "forget,"
he gave Ofgant a parting handshake.
Also experiencing broken windows, although the record gives no indication of
any prior or later request made to them to stop advertising in El 'Impartial, were
F. W. Woolworth, Inc., Singer Sewing Machine Company, of New Jersey, whose
businesses need no explanation, and Gonzalez Padin Distributing Corporation, a
large wholesale and retail dealer in household applicances, and Eastern Airlines.
We defer to a later stage the discussion of the one concern advertising in El
Imparcial , which did not sustain broken windows though asked to cease advertising
in it. This is Cerveceria Corona , Inc., a brewery , whose employees , in a leaflet
distributed to them by Respondent, were asked to "insist" that Corona stop advertis-
ing in El Imparcial , and which the General Counsel claims to have been an induce-
ment and encouragement of these employees in violation of (i) of 8 (b)(4). See
footnote 4, supra. Before coming to Corona, we discuss the testimony of the last
two of the General Counsel 's witnesses, which ties in the window-breaking with the
antiadvertising campaign.
3. The mission to break windows of advertisers in El Impartial , and its execution
Two witnesses testified to having broken windows under instructions from Organizer
Trias. One was Ismael Santos , a striker, and the other was Jose Arce (known as
Pepe ), who provided transportation in his "publico " (a privately owned car which
can be used for paid transportation ) at a stipulated price per job, who normally
acted as lookout , while Santos threw the stones . There is no effective denial of
either testimony, Respondent 's main reliance being that when the police caught up
with them , they had been beaten , and, so far as appears , no criminal proceedings
have yet been instituted against them. These, to be sure, are factors bearing upon
the weight to be given the testimony . But after making due allowance therefor,
and considering the opportunity this Trial Examiner had to observe their testimony
4 The complaint , in an earlier context, refers to Goodyear Western Hemisphere Corpora-
tion as owning the retail outlet of the Goodyear enterprise in Puerto Rico It is pre-
sumably the same as that designated as Goodyear Western, Inc. I am using the latter
because it appears that way in the amendment to the complaint , which is a later document,
and presumably more precise on that score.
s Trias testified he had personally asked his brother -in-law to "cooperate." The latter
testified Trias had not had contact with him during the strike , but that after the first
breakage , an unidentified caller warned him that this would happen again if his company
continued advertising in El Imparcial , which indeed occurred after he again placed such
an ad More details on this subject were given by Ismael Santos, who testified to having
broken the windows. These are related in the next subsection.
900 DECISIONS OF NATIONAL LABOR - RELATIONS BOARD
and evaluate it in the light of all the surrounding events, there can be little doubt
of its truth. These were not hardened criminals, but lads otherwise engaged in law-
abiding occupations. Santos was drawn into the unlawful activity as the quid pro quo
for an extra allowance, which the Union admittedly paid him, above his weekly
strike benefit, in order to enable him to pay his rent, and Arce for the $8 to $10
he received for providing the transportation for each window-breaking job. Addi-
tionally, Santos owned up to his conduct after being identified by a janitor or watch-
man as the window breaker at one of the most recent of such occurrences (F. W.
Woolworth's on October 26). Also, the testimony of these two witnesses finds full
corroboration in ,the surrounding circumstances. Accordingly, on the basis of their
testimony, and the surrounding context, the following evidentiary findings are made:
Santos, a stereotyper in El Imparcial's pressroom, joined the strike about a week
or two after its outbreak on May 26. For about a month, without engaging in picket
duty, but merely for staying out, he received weekly strike benefits not in excess of
$30. He was then placed on picket duty. After 1 day at it, he told Organizer Trias
he needed money to pay his rent. Trias replied that he "would get the money for
[Santos] but that there was some work [he] had to do . . . because the ads were
increasing 'and so [Santos] had to break windows." Santos said he would ,think
it over and, in his own words, "finally, because of my need for the money," he
agreed. His first mission was to break the window of a store of Casa Wurlitzer,
owned by Borinquen Corporation. At midnight, he went there in the car of one
Eddie Velez, with whom Trias sent him for that purpose, along with another lad.
With Velez acting as lookout, Santos threw a stone. In his inexperience and nervous-
ness, he missed the window, and the third boy completed the job. The following
morning, at the union office, Santos received from Trias -a check for $84, signed
for the Union by Chavez. Trias informed Santos "he needed [him] here," and
so relieved him of further picket duty.
Trias, in Santos' presence, consulted each day's edition of El Imparcial for the
ads appearing in it. Seeing the Wurlitzer ad still appearing after the first window-
breaking episode, he said "it had to come out," and stated he would call that
establishment to ask it to "cooperate." Immediately afterward he made a call,
but the telephone being too far away, Santos did not hear it. This aspect of the
case is filled in by the credited testimony of Joaquin Pueyo, comptroller of Borinquen
Corp., that about 2 weeks before the first breakage, which he fixed as having occurred
on or about July 8, a person identifying himself as Trias called and asked for his
company's cooperation in Respondent's strike by discontinuing advertising in El
Imparcial, and Pueyo thereupon referred him to the Company's advertising agency
(one other than the three here involved). The company continued to advertise
in El Imparciall, and about 2 weeks after the first breakage, Pueyo, as the latter
testified, received a call from a person giving a name other than Trias, but saying
he spoke for the Teamsters, in which the same request was made, and again Pueyo
referred him to the advertising agency. The ads were continued and again a window
was broken. Santos testified Trias sent him on this second mission to Wurlitzer
when an ad appeared in El Imparcial the day after the call. It is found that this
call, though purporting to be made by one other than Trias, like the first, was made
by him.
As to Gomez Hermanos; Santos supplied particulars concerning the window
breaking there which were more illuminating than those given by Organizer Trias
and his brother-in-law Ramon Gomez (footnote 8, supra). He testified that on
observing an ad of the Gomez establishment in El Imparcial, Trias said, "Look, he is
advertising in the paper. I'm going to make a call and tell him not to advertise,"
and as, in the Wurlitzer incident, he made a call on the telephone, which was not
within hearing range of Santos. A Gomez ad 'appeared in El Imparcial the next
week, and again as in the case of Wurlitzer store, Trias sent Santos and Velez to
break a window there. With the latter as lookout, Santos performed that mission,
and reported this to Trias the next morning. Trias then went with Santos and Velez
to inspect the damage. On the way back to union headquarters, Trias made a stop
at his brother-in-law's house, and on leaving, told his sister "to tell Moncho not
to place any moreads; to cooperate with the strike."
Velez bowed out, and after this the transportation was provided by Jose Arce,
the other witness concerning this phase of the case. The later missions were also
three-man jobs, for which, as previously stated, Arce provided transportation in his
publico. Their executed missions included the breaking of windows of the Goodyear
Western store (whose manager, John Skelton, in a telephone conversation with Secre-
tary-Treasurer Chavez, to be described in fuller detail in our later discussion of
alleged violations of (i) of 8(b) (4), pledged his "cooperation" but nevertheless con-
tinued to advertise in El Imparcial after his superiors disapproved of his earlier
TEAMSTERS , CHAUFFEURS , ETC., LOCAL 901 901
decision ), Volkswagen ( whose general manager , as previously indicated , had been
approached by Chavez a few days after a window had been broken at one of its
stores, following the appearance of an ad in El Impartial ), and also, as earlier
indicated , of establishments not previously approached-Singer Sewing Machine Co.,
F. W. Woolworth, Gonzalez Padm Distributing Corp., and Eastern Airlines. The
boys met their undoing, oddly enough , after a job in a local drugstore , which is
not named in the complaint as amended.
4. Conclusion concerning threatening , restraining , or coercing of
advertisers in violation of 8(b ) (4) (ii) (B)
a. The establishments sustatning injury to property
The source of the breakage being Respondent and its purpose being to compel the
affected establishments to stop advertising in El Impartial, Respondent thereby
threatened , coerced , and restrained them with an object of forcing or requiring them
to cease doing business with El Impartial , in violation of Section 8(b) (4) (ii) (B).
This is so without regard to whether these concerns had previously been requested
to "cooperate" or not. The testimony of Santos establishes that he was sent on
all of his window -breaking mission to discourage further advertising in El Impartial
by the companies affected. In view of the pervasive character of the -activity and
its purpose , those not specifically requested to "cooperate" could hardly help link
the damage to their property with the Union 's campaign to deprive El Impartial of
advertising revenue, in the same manner as those who had been thus approached.
Respondent accordingly violated 8 ( b) (4) (ii ) ( B) in respect to all persons whose
windows were broken , as found.9
b. The three advertising agencies
Insofar as the requests to the Universal Advertising Service and Highley Advertis-
ing Agency were enforced by the damage to property of their clients (Universal's
Franklin Stores , and Highley 's Puerto Rico Home Appliances ), the latter action
endowed the requests with the force of a threatening demand . Additionally , Chavez'
threat to close down Highley's agency ,,picket his place, and to call strikes at his client's
places of business was a coercive act quite independently of the later violence to the
property to one of Highley 's clients.
On a different plane, however, would appear to be the threats made respectively
to President Rosado of Universal , in September , to "fix [his] wagon" by telling his
clients it was wasting their money to advertise in a paper of reduced circulation, and
to Publicidad to include its patrons in a "do not patronize " leaflet to the general
public.
In each instance , Respondent could legally have taken the action embraced in the
threat: Respondent could have appealed directly to Universal 's clients to cease
advertising in El Imparcial on the economic ground which it advanced to Universal,
without offense to (ii ) of 8(b)(4); also , under the interpretation of the "publicity"
e The following comments are in order in respect to two of these companies: Puerto
Rico Home Appliances , Inc, was not mentioned in the testimony of the window - breakers
as among the establishments to which they were sent However, Highley Advertising
Company , its advertising agent , had been asked by Chavez to discontinue advertising for
its clients in his "son-of -a-bitch" overture to President Highley The action which Chavez
threatened to take, to be sure, was other than window breaking . However , the record
establishes that the destructive measure pursued was adopted as the means of enforcing
the requests to cooperate , and in the light of the demand angrily made by Chavez upon
Highley, it is a fair inference that the breaking of the window of the latter ' s client came
from the same source as that established by direct evidence in respect of the others
As to Eastern Airlines , Inc, the complaint , as amended , does not include any mention of
it. However , the windowbreakers named it as among those included in the destructive
missions and for the same purpose The damage to Eastern Airlines and its purpose are
thus before us as if fully alleged. See American Newspapers Publishers Association v.
N.L R B , 193 F . 2d 789, 799-800 ( C A. 7), cert denied 344 U S 812 That Eastern Air-
lines is a "person engaged in commerce or a business affecting commerce" Is a matter
which may be and here is officially noticed
For completeness and for convenience of reference , we mention here the additional
companies embraced in the finding made in the text: Borinquen Music Corp. ; Gomez
Hermanos , Inc ; Franklin Stores of Puerto Rico , Inc ; Goodyear Western , Inc ; Volks-
wagen of Puerto Rico, Inc ; Gonzalez Padin Distributing Corp. ; Singer Sewing Machine
Co., and F. W. Woolworth Co
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proviso of 8(b)(4) given to it by two of my colleagues who have passed on the
issue, and in which I concur,10 Respondent could legally have distributed leaflets
to the consuming public identifying the clients of Publicidad as advertising in El
Imparcial.ii
The contention that the threats here considered violated the Act seems to make
no allowance whether the conduct which is threatened would be legal apart from
the threat. This gives to the governing section a literal reading without due regard
to the other rights intended to be preserved by the immunity accorded to the conduct.
The conduct in each of the instances here considered would be an exercise of the
right of free speech and communication. To make illicit the expression of an inten-
tion to exercise that right even though it is intended to achieve the same purpose
as may legitimately be sought by the communication would place an unwarranted
stricture on the basic right itself. If, for the purpose of having Universal's clients
cease advertising in El Imparcial, Respondent could legitimately have sought to
persuade them that such advertising was an improvident expenditure because of
the paper's poor circulation, then to bar a prior announcement to Universal of an
intention to do so would pro tanto undermine the interest legitimately served by
the communication. Freedom of speech is a matter in which the person to be spoken
to also has an interest: the right to speak has its justification not merely in the
interest of the speaker in trying to persuade the hearer to legitimate action, but in
the hearer's own interest in exposure to such "views and arguments and opinions"
as, after hearing them, he might deem relevant to his own decision. It is true that
in this situation Universal had an interest of its own in the subject apart from its
clients, such as commissions and the retention of its prestige with them, and presum-
ably that was the interest to which the "fix your wagon" statement to President
Rosado was directed. However, to give weight to that factor would be to exalt the
interest of the agent in the subject of the proposed communication above that of
the principals, to whom he has a fiduciary relationship. If that kind of interest could
illegalize the expression of an intention to speak to the clients, it would serve also
to bar the mere act of speaking to them, for to the extent that any of them might
be persuaded by the economic argument based on El Imparcial's low circulation, this
too could deprive Universal of possible commissions and perhaps impair its prestige
with them. A fair balancing of the relevant iiiterests, it seems to me, would require
that the legal consequences of the statement to Universal be determined on the
basis only of the client's interest in the content of the threatened communication
and the Respondent's in making it. Since the proposed communication to the clients
would have enjoyed the protection of free speech,12 and the statement to Rosado was
for the same purpose as could legitimately have been pursued by speaking directly
to the clients, the Union's statement to Rosado that it intended to do so shares the
immunity which a direct communication to them would have enjoyed.
The threat made to Publicidad of a leaflet appeal to the consuming public, unlike
that made to Universal, is not one involving any interest of Publicidad in its subject
'" Plumbers and Pipefitters Local Union No 142, AFL (Shop-Rite Foods, Inc d/b/a
Piggly Wiggly), 133 NLRB 307; Electrical Workers Local Union No. 73 (Northwest
Construction of Washington, Inc ), 134 NLRB 498; but see Local 662 Radao & Tele-
vision Engineers aflsated with International Brotherhood of Electrical Workers, AFL-CIO
(Middle South Broadcasting Co.), 133 NLRB 1698.
" The proviso reads:
Provided further, That for the purposes of paragraph (4) only, nothing contained in
such paragraph shall be construed to prohibit publicity, other than picketing, for the
purpose of truthfully advising the public, including consumers and members of a
labor organization, that a product or products are produced by an employer with
whom the labor organization has a primary dispute and are distributed by another
employer, as long as such publicity does not have an effect of inducing any individual
employed by any person other than the primary employer in the course of his em-
ployment to refuse to pick up, deliver, or transport any goods, or not to perform any
services , at the establishment of the employer engaged in such distribution.
In the cases cited in the preceding footnote, Trial Examiners Boyls and Miller, after a
detailed discussion of the legislative history, concluded (contrary to Trial Examiner Libbin
who deems the literal reading to govern) that subject to the same conditions the immunity
also applies to publicity identifying establishments using the services of the primary
employer.
12 Wyzanski, J, in Bernard L. Alpert v. Excavating and Building Material Chauffeurs
and Helpers Local Union No. 379, etc. (Consalvo Trucking Inc ), 184 F. Supp. 558
(D C. Mass.).
TEAMSTERS, CHAUFFEURS, ETC., LOCAL 901 903
matter separate from that of its clients , and the considerations governing the legality
of the statement to Publicidad would be the same whether made to Publicidad or
directly to the clients . The issue in respect to that threat is whether assuming, as
we already have ( footnotes 10 and 11 , supra), that it would have been permissible
to distribute leaflets to the public naming the clients of Publicidad as advertising in
El Impartial , it was likewise permissible for Respondent to tell either Publicidad or
the clients , or both , that it intended to distribute them if they did not cease advertising
in it. It may be observed , preliminarily , that the immunity of the leaflet distribu-
tion would not be impaired by an appeal not to patronize the establishments named
in it, for that is manifestly what the leaflets are for. I say this with due regard to
the wording of the proviso ( footnote 11, supra ) which describes the immunized
publicity as being for "the purpose" of informing the public . Here again in agree-
ment with the only one of my colleagues who has thus far had occasion to pass upon
the matter,13 and on the basis of the legislative history as therein detailed , I would
conclude that the immunity under the proviso is complete if it meets the dual
condition of being truthful and of not causing disruption of service , even though its
intent be , through a favorable response by the consuming public, to bring economic
pressure on neutrals to cease dealing with the primary employer.
To conclude otherwise would be to impute to Congress the naive belief that a
union which is engaged in a test of economic strength with a primary employer resorts
to publicizing the names of persons trading with the primary employer as a naked
educational project , instead of for the purpose of damming up that source of revenue
to the primary employer through inducing the consuming public to withhold its
patronage from persons dealing with it. The presumption that one intends "the
natural and foreseeable consequences " of his action 14 is one with which we may
reasonably assume Congress is familiar , and we may infer that Congress , when it
immunized the publicity , immunized also its use for the purpose of its "natural and
foreseeable consequence" of forcing secondary employers to stop trading with the
primary employer. To be sure , such action is coercive upon the secondary em-
ployer , and to immunize it pro tanto narrows the scope of the general prohibition of
8(b) (4) (ii) (B). But this is a concession which Congress made in deference to
the interest of freedom of speech subserved by the leaflet , to which, in the particular
instance , it gave predominance over the interest served by the general prohibition.
The Intermediate Report of Trial Examiner Boyls in the Plumbers (Piggly Wiggly.)
case ( footnote 10, supra ), contains exhaustive citations to the legislative history
showing that it was out of deference to that interest that the proviso was inserted.
This conclusion is fortified by the further fact , therein noted , that Congress did
not include picketing within that immunity ( see footnote 11, supra ) because it has
an impact upon employees beyond the language of the picket sign.15 This last ob-
servation is given added weight by the fact that Congress conditioned even the im-
munity of nonpicketing publicity upon its not having an effect of the kind that picket-
ing tends to produce , namely that of causing employees of neutrals to refuse to
perform services at the establishments named in the publicity.
The point of the above is that Congress , in deference to the interest of free speech
served by publicity other than picketing , immunized it as long as it was truthful and
as long as the coercion upon neutrals to stop dealing with the primary employer
simply flowed from the economics of the persuasion that such publicity might carry
to the consuming public (as opposed to the operational impediments of a work,
stoppage ). That being so, it would seem a bit strained to hold that though the
publicity was not forbidden , it was nevertheless unlawful to tell the persons to be
affected, beforehand , of the intention to engage in it in order to afford them the
opportunity to avoid its economic consequences by taking the action which they could
lawfully be compelled to take by the publicity itself. If so to tell them beforehand
is a threat , it is a threat to do what may lawfully be done and which is made to
accomplish the same object as is permitted for the publicity itself.
The threats to Universal and to Publicidad thus fall within the general doctrine,
long ago enunciated by Judge Learned Hand, that "a threat to do that which a person
has a right to do is not unlawful ." National Fireproofing v. Mason Builders, 169 F.
1s General Drivers, Warehousemen and Helpers , Local Union No. 968 , etc. (Schepps
Grocery Co.), 133 NLRB 1420.
14 Radio Officers ' Union, etc . ( A. H. Bull Steamship Company ) v. N.L.R .B., 347 U.S.
17, 52.
1s Cf. Bakery Drivers v. Wohl, 315 U . S. 769, 776-777 ; Hughes et al. v. Superior Court
of California for Contra Costa County , 339 U . S. 460, 465. See also United Wholesale and
Warehouse Employees, Local 261 , etc. (Perfection Mattress ), 129 NLRB 1014.
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
259, 269 (C.A. 2, 1909), and cases cited. This doctrine has its specific embodiment
in our field as follows: 16
Generally speaking, laborers and the members of a labor organization have a
right to threaten to do that which they have a right to do.
The criterion has been expressed in the Restatement of the Law of Torts (1939)
chapter 38 "Labor Disputes," section 783:
The propriety of the threat depends upon what is threatened. If what is
threatened is proper, the threat is also proper.
Since it would have been lawful, in each instance, to have taken the action
threatened, the threats made to Universal and to Publicidad were not unlawful under
Section 8(b) (4) (ii) (B).
5. Alleged inducement of individuals employed by companies advertising
in El Imparcial, in violation of (i) of 8(b)(4)(B)
We have previously indicated that one company, Cerveceria Corona, a brewery,
though asked to cease advertising in El Imparcial, had not sustained damage, but that
the Union had circulated a leaflet to its employees asking them to "insist with Corona"
that it not advertise in El I•mparcial. The General Counsel contends that that was
an inducement and encouragement of these employees to refuse, in the course of their
employment, to perform services in order to force their employer to cease advertising
in El Imparcial. He makes the same contention in respect to the telephonic appeal,
previously alluded to, of Secretary-Treasurer Chavez to James Skelton, manager of
Goodyear Western's store, not to advertise in El Imparcial. The General Counsel
contends that, the appeal, independently of any extrinsic action to enforce it, was an
unlawful inducement of an "individual employed by" Goodyear Western to refuse
"in the course of his employment, to perform services," within the prohibition of
(i) of 8(b)(4)(B). We discuss each in that order.
Coming first to the leaflet to the employees of Corona, the General Counsel con-
tends that "insist," in the context in which it was used, meant insist to the point of
stopping work if Corona rejected the requested overtures by its employees to cease
advertising in El Impartial. The context relied on is Respondent's bitterness toward
El Impartial, which is reflected in its reference to it as "the most antilabor employer
in all Puerto Rico and maybe in all America," its characterization of "every person
who buys El Impartial and every advertiser who advertises in [it]" as "helping to
weaken the strike, for he is in cooperation with the most monstrous employer of
Puerto Rico," and the basis of mutual help on which the appeal is claimed to have
been put, as follows:
Cerveceria Corona continues advertising in El Imparcial although the ad does
not produce anything since El Imparcial is NO GOOD and circulates little.
You, the fellow workers of Corona, know what this means. If some day you
have differences with the employer, El Imparcial will be against you. For that
reason, because of the fellowship that should unite all of us workers, we are
asking you to insist with Corona so that it doesn't advertise in El Impartial,
because it is equivalent to contributing to break a strike -and because other means
produce better results. We the strikers of El Impartial, will help you at any
time you need our help. Help us to keep our movement, which is yours, strong.
Fraternally,
Strike Committee of El Imparcial.
The expression "fraternally" and to "our movement, which is yours" is derived from
the fact that Corona is an "organized" plant, although by what union is not
altogether clear.
Granted the foregoing context, I find it difficult to go along with the conclusion
that the expression "insist" means doing so to the point of stopping work. The
expression "insist" has many facets: it is as susceptible of the meaning to "urge
vigorously" as to insist to the point of striking. The surrounding context as strongly
supports that meaning as the one urged by the General Counsel. The statement in
the leaflet that El Imparcial "circulates little" suggests an economic argument to be
made to that employer to persuade it not to advertise in El Imparcial. Also to be
considered are certain negative aspects of the context. The record shows no attempt
by Respondent to induce strikes or stoppages by employees of any other employer in
support of its dispute with El Imparcial. To the extent that the legal effect of
language is determined by its "tendency," then, as against an assumed tendency having
16 31 Am. Jur. 724 (1938) "Labor," sec. 398.
TEAMSTERS, CHAUFFEURS, ETC., LOCAL 901 905
no support in any experience involving the use of that expression, there is the positive
enlightenment afforded us by the actual consequence of its use in this case. See
Local 50-Bakery and Confectionery Workers etc. (Arnold Bakers Inc.) v. N.L.R.B.,
245.F. 2d 542, 547 (C.A. 2). • So far as appears, the appeal induced no work stop-
page, it induced no demand upon that employer to cease advertising under threat of
any work stoppage, or any consequences of the kind which it is claimed to have
"tended" to induce. It would seem a fair conclusion that the General Counsel has
failed of his burden to tip what is at best to him a patent ambiguity in favor of the
pejorative meaning which he urges, and that the legal consequence is controlled by
the proposition that: "The statement here is ambiguous at best, and Respondent is
accordingly entitled to the interpretation which exonerates rather than convicts."
Senorita Hosiery Mills, Inc., 115 NLRB 1304, 1315.
As to Manager Skelton of the Goodyear Western store, it is difficult to conceive
of him as an "individual employed by" that concern as that term is used in 8(b)
(4) (i), or that an appeal to him not to advertise in El Imparcial, addressed as it was
to his managerial discretion, is an inducement "to engage in a refusal, in the course of
his employment, . . . to perform . services." The General Counsel concedes
that the prohibition in (i) of 8(b)(4) against inducement of "any individual em-
ployed by a person" cannot be interpreted literally, for under that interpretation,
even the president and sole stockholder of a corporate person could of be induced
with impunity because of his own legal status as an "individual employed by" his
corporate creature. He contends, however, that the term is applicable to any
"individual employed by a [corporate] person" short of an'officer or one who sets
policy for the enterprise as a whole. In that connection, aware of the contrary view
expressed by me in a prior case,17 he urges its reconsideration. That issue is now
pending before the Board on exceptions to my report, but having again considered
the matter, for the reasons therein explicated, I adhere to the conclusion as previously
expressed, in agreement with the view expressed by Judge Wyzanski, in Alpert v.
Excavating Union (Consalvo Trucking), supra, footnote 12, that:
8(b) (4) (i) is concerned with appeals addressed to those who perform services
manually or clerically or who manually use goods, or who have minor super-
visory functions. It does not cover appeals to those who on behalf of their
employer have power lawfully to terminate, close, or otherwise control business
relations with the so-called primary employer. [Emphasis supplied.]
Skelton's managerial functions are hardly those of a "minor supervisor." He is
one who "on behalf of [his] employer [has] power lawfully to . control business
relations with the . primary employer." Goodyear Western is a Panama corpo-
ration, whose parent, Goodyear International Co., is a subsidiary of Goodyear Tire
& Rubber Co. of Akron, Ohio. Goodyear Western owns and operates retail outlets
for Goodyear products. The one in the Greater San Juan area, which is managed by
Skelton, is the only such outlet presently in Puerto Rico. He is in charge of a force
of 26 persons, including an office manager. Apart from selling, the force under
Skelton is also engaged in rendering services, such as tire retreading, as well as truck
operations, presumably in making deliveries. Such advertising as is part of any
national selling campaign is handled by the dominant Goodyear enterprise from
continental United States through an advertising agency. On the other hand, the
advertising for a purely local selling campaign of the store's products or services is
handled by Skelton in accordance with his own best judgment and discretion. He
must, of course, stay within the amount of the budget allocated to the Goodyear
Western store out of a central overall advertising budget for the whole Goodyear
enterprise. Subject to that and consistently with basic policy of the enterprise as a
man in his position is supposed to understand it, he is responsible for his own adver-
tising in the very manner in which he is responsible for the successful running of the
store
As stated, the General Counsel contends that when Chavez asked Skelton to cease
advertising in El Imparcial, Respondent was inducing him to refuse "in the course
of his employment, to perform services" for Goodyear Western. He equates the
situation with that in the Amalgamated Meat Cutters and Butcher Workmen of North
America, AFL, Local No. 88 (Swift and Company) case,18 where the union, as part
of a campaign to organize the salesmen of Swift, induced buyers for meat selling
concerns, who belonged to it, not to place orders with Swift's salesmen and, instead,
to place them with salesmen of other packing concerns. There the buyers were asked
"'Local 294 , International Brotherhood of Teamsters , etc (Van Transport Lines, Inc.),
131 NLRB 242.
18 113 NLRB 275, enfd. 237 F. 2d 20 (C A D C ), cert. denied 352 U S 1015
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to perform their duties in a manner which would have put their personal loyalties to
the union ahead of that owed to their employer. As the Board put it (p. 279), "the
discretion vested in the buyers by their employers was one to be exercised solely
in the employer's interests and was not a discretion to accomplish some ulterior aim
of the buyers themselves." [Emphasis supplied.]
Quite the reverse was the appeal made to Skelton. It was made to him not on
the basis of any community of interest between himself and the strikers or to "ac-
complish some ulterior aim of [his own]." The request, as Skelton described it,
was made to him on the basis of Goodyear's "friendly" relations on the continent
with the Teamsters and the desirability in Goodyear's own interest of being "friendly"
with the Teamsters in Puerto Rico, and when he assented to Chavez' request for
"cooperation" by saying he saw no reason why they should not be "friendly," he
made a decision, as he indicated on the stand, on the basis of his managerial judg-
ment of what would serve his employer's interests. Later discussion with people
above him in the Goodyear hierarchy caused him to reconsider his judgment, but
the test is not whether in making the decision he properly gauged the sentiment of
those in higher authority, but whether the Union's inducement of him and his own
decision were on the basis of Goodyear's, not his personal interest in being "friendly"
with the Teamsters. It is hardly disputable that it was on that basis on which the
Union asked his "cooperation" and on which he promised it.
The above rather highlights the incongruity of making the determination of
whether one falls outside the category of an "individual employed by" a neutral turn
on the fortuity of the office he occupies or the title of his position rather than the
managerial function he performs. Whether Skelton was given an office within the
corporation, there is no question but that he was given a responsibility in the running
of the Goodyear Western store in San Juan, whereby to the outside world at least,
he stood for its management , and, as his testimony indicated, it was in that capacity
in which he was approached and in which he spoke to Chavez. It is accordingly
found and concluded, first, that Skelton, as manager of Goodyear Western's store,
is not "an individual employed by" it, within the meaning of (i) of 8(b)(4), and
separately and independently thereof, in asking him not to advertise on behalf of
Goodyear Western in El Imparcial, Respondent did not "induce or encourage" him
"to engage, in the course of his employment . . . in a refusal to perform . . . serv-
ices," within the meaning of that section. This takes us to the last phase of the
case, involving Star Publishing Corporation.
C. The alleged coercion of Star Publishing Corporation to "cease doing
business with" El Impartial
Star publishes an English newspaper in San Juan bearing its name. It is a lessee
of the second floor of the building owned by El Imparcial. Not having printing
facilities of its own, that portion of its operations, up to the time of the strike, was
contracted out to El Imparcial under a 1-year contract expiring October 30, 1960,
the relevant terms of which are described later. It should be said that Star handled
all other functions of its paper's publication, such as composing, editorial work, and
photo-engraving (except for several minor items in respect to the latter, for which
it used the facilities and services of El Imparcial, at a fixed charge per job). It
is also noted that the printing, provided for by the contract, was done by the press-
room employees of El Impartial, the occasional photoengraving, performed on an
as-needed basis, was done by El Imparcial's photoengravers, and that both classes
of employees of El Imparcial participated in the strike here involved.
The alleged violation in respect to Star is that as the condition of acceding to Star's
request for an assurance that Star's employees could enter the El Impartial building
without molestation from Respondent's pickets, Chavez, in turn, elicited from Star
the assurance that its employees would "not enter the Imparcial part of the building
and will not use Imparcial equipment." This exchange of assurances occurred dur-
ing the first week of the strike, when El Imparcial had suspended operations, in-
cluding the performance of its contracted printing services for Star, as well as the oc-
casional photoengraving. The only use that Star's employees would or could have
for El Imparcial equipment was to perform the printing (or the limited photoengrav-
ing) services which El Impartial, through its employees, normally performed for
Star. This was explicitly indicated by William J. Dorvillier, president of'Star:
TRIAL EXAMINER: . . . did you understand, then, by the statement "not to
enter El Imparcial's part of the building" to mean that your employees were
not to enter the El Imparcial part of the building to do the kind of work that
normally the employees of El Imparcial did?
WITNESS: That's right.
TEAMSTERS, CHAUFFEURS, ETC., LOCAL 901 907
- The General Counsel argues that what differentiates this from the "ally" situation,
as exemplified by Judge Rifkind's classic opinion in the leading Metropolitan Federa-
tion case,19 is that the use of El Imparcial's facilities for printing (and for a certain
kind of photoengraving) would be in connection with Star's printing of its own
newspaper. Since, in using El Imparcial's equipment, the employees of Star would
nevertheless have been performing work which El Imparcial's employees would
normally have performed but for the strike, it is difficult to see how it would have
made Star any less an "ally" because it needed the printing for its own operations,
any more than the same could be said for a merchant, who, because he needs the
product of a manufacturing concern which is on strike, lends out part of his working
force to make, the product for the ^ manufacturer until the latter is, able to resume
normal operations. The merchant's need of the product does not alter the fact
that in supplying his own personnel to fill the gap in the manufacturer's manpower
caused by the strike, he is an "ally" of the manufacturer. Heightening the corre-
sponding conclusion here is that under the contract as executed and under the course
of practice in respect thereto, Star's employees, in printing the paper on El Im-
parcial's presses, would be doing so in furtherance of the contractual arrangement.
The relevant provision is the portion of clause 6, which releases El Imparcial of
liability where nonpublication is caused by cessation of El Imparcial's operations
as a result of "strikes," and then provides that:
. .. In case of strike in the "Printer's" (El Imparcial's) shop, the Printer will
provide all facilities to "The Publisher" (Star) for the publication of this
newspaper, but "The Printer" shall be under no obligation to provide labor
force for the printing of "The Publisher's" newspaper as long as the strike
continues.
President Dorvillier testified that if Star availed itself of that privilege, it was still
obligated to pay El Imparcial the "contract price less our [labor] cost." The "con-
tract price," under paragraph 4, sets a fixed rate per day for a given quantity of copies
of a prescribed size, with another fixed rate for any excess in quantity or size. The
result of Star's thus availing itself of the privilege is that under the contract, El
Imparcial, subject only to reimbursement to Star for its labor cost, would be en-
titled to its contract rate as if it had itself performed the contracted printing opera-
tion. And in reimbursing Star for the labor cost, El Imparcial would, in effect, be
paying for the work done in replacement of its own striking employees.
It is difficult to envision a situation more completely fitting the "ally" concept, as
laid down by the Board and the courts-namely, one where the employees of the
nonstruck employer "perform the work which the employees of the [primary em-
ployer] would have performed had they not been on strike," and for which the latter
is paying 20
Some point was made of the fact that at the time Chavez elicited the assurance
from Star, the latter's employees were not, in fact, using El Imparcial's equipment,
and, according to Dorvillier's testimony, Star's employees did not have the compe-
tence or skill to use El Imparcial's presses because of their unique manufacture. I
hardly see that that alters the situation in favor of the General Counsel's position.
If anything, it would be the other way, since it would follow therefrom that apart
from the unprotected character of the "ally" relationship, Star was not even being
"coerced" into forgoing it by the assurance thus elicited, for the paper could not
have printed anyway, as long as the Union's primary strike' activity against El Im-
parcial was effective enough to prevent El Imparcial from operating. Dorvillier testi-
fied that after giving that assurance, Star had its paper printed up by another publi-
cation in San Juan. But this was manifestly the result of the primary strike at El
Imparcial. He also testified that after El Imparcial resumed operations, the latter
notified Star to that effect, but that Star did not resume relations with El Imparcial.
The relevancy of this too eludes me, since there was nothing in the assurance given
to Chavez which compelled Star to that recourse: since El Imparcial's equipment
could now be operated by its own employees, the assurance to Respondent that Star's
10Douds v . Metropolitan Federation, etc., Local 5 31 (Project Engineering Company),
75 F. Supp 672 (D C N.Y ).
p Shopmen's Local No 501 etc (Oliver Whyte Company , Inc.), 120 NLRB 856, 859,
citing Douds v. Metropolitan Architects , supra, footnote 19, N.L R B . v. Business Machine,
etc, Local 459 ( Royal Typewriter Co ), 228 F. 2d 553 (C.A 2 ) ; 111 NLRB 317, 329.
The Board has within the past week restated this test in passing upon whether a new type
of "struck work" provision appearing in certain contracts offends the prohibition of Sec-
tion 8 ( e) against entry into "hot cargo" agreements See Amalgamated Lithographers
et al. ( Employing Lithographers of Greater Miami ), 130 NLRB 968.
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees would not use it became academic. Star simply sought to avoid the in-
convenience of contracting out its work to a concern with a primary strike still on
its hands-understandable, but hardly relevant to the issue before us.
Since the only business relationship which would be affected by Star's assurance
that its employees would not use El Imparcial's equipment was that of an "ally," it
follows that apart from the highly dubious consideration of whether the condition
laid down by Chavez in exchange for the requested assurance constituted "threat,
restraint, or coercion," within the meaning of (ii) or 8(b) (4), the assurance thus
elicited was not for any object of forcing Star to cease "doing business" with El
Impartial, within the authoritative meaning of that term as used in the applicable
section. Hence, there was no violation of 8(b ) (4) (ii) (B ) in respect to Star, as
alleged.
IV. THE REMEDY
It has been found that Respondent threatened, restrained, and coerced neutrals
to force them to cease advertising in El Imparcial, in violation of Section 8(b) (4) (ii)
(B) of the Act, and it will be recommended that it cease and desist therefrom.
The General Counsel would go further and have Respondent enjoined from any
kind of secondary boycott activity, not only in relation to El Impartial, but "any
other employer" in Puerto Rico. This rather runs against the grain of recent judicial
pronouncements, which, since the Supreme Court's decision in the Communications
Workers case,21 have shown less than total rapture with spread-eagle orders of the
"or any other employer" kind here sought.22 The underlying fault with these orders,
as the courts see them, is that which the Supreme Court sought to abate in the classic
decision in Express Publishing,23 when it tailored to the violation found a loose-fitting
order purporting to place an employer, for transgressing one subdivision of Section
8, under an injunction as broad as the statute. We have been reminded that in vesting
agencies such as ours with injunctive powers, Congress has given it responsibility
to employ that power with the temperance and balance of an equity court.24 The
classic function of the injunctive power is its use in remedying the situation pre-
sented-to stop the offense and remedy its consequence, not to subject the offender to
a perpetual injunction to obey the law in general . The vice in orders which reach
beyond the situation which gave rise to them, such athose which enjoin violations
"'in any other manner" or against "any other employer," is that they project into the
remote future embracing newly arising situations completely disconnected from the
present, and to whose solution the present situation may well become irrelevant. One
result is that the new situations, instead of being handled under the established se-
quence of filing of charges, investigation, complaint, hearing, etc., are subject to the
short-cut device of a contempt proceeding brought in the courts of appeals, whose
enforcing decrees provide the only compulsive sanction to these orders. At that point,
these appellate tribunals are saddled with the burden of conducting trials de nova
of issues of fact, with attendant credibility determinations, which normally are the
grist of the Trial Examiners and the Board. It is one thing to do so as an incident
of effectuating the remedy to which the court has lent its sanction of a decree; it is
another to present to them a brand new issue, of the kind which, under the scheme
of the statute and under principles of administrative law, they should have the guid-
ance of initial consideration by the Agency 25
The above serves further to explain the judicial aversion to orders which go be-
yond what is calculated to give effective relief in the situation presented and which
will require them to consider alleged future offenses on a de novo basis, without
benefit of the agency's initial insight. The burden of proof borne by the prosecution
in such contempt proceedings, which is considerably heavier than in original proceed-
ings before the Agency,26 and the distressing misadventures which have attended
the Agency in bringing de novo issues of fact in contempt proceedings before the
21 Communications Workers of America, AFL-CIO, et at ( Ohio Consolidated Tele Co ) v
NLRB, 362US 479.
22 N.L.R B v. Ochoa Fertilizer Corp, et al, 283 F 2d 26 (C A 1) ; NLRB v United
States Steel Corp, 278 F 2d 896 • (CA 3) , N L R.B. v International Hod Carriers etc
(Economy Forms), 285 F 2d 394 ('C A 8) ; N L.R B v. Dallas General Drivers Local
Union 745 (Mfacatee Inc ), 281 F. 2d 593 (C A. 5) _
2i N L R 13 v Ea•press Publishing Company, 312 U S. 426
24 N L R B v U S Steel Corp , 278 F 2d 896, 901 (C A 3), and cases cited
25 Cf. Chenery Corp v SEC , 318 US. 80. 88 (1943) ; 332 U S 194, 200 (1947).
26 Kansas City Power & Light Co. v. N.L.R B., 137 F. 2d 77, 79 (C A 8)
TEAMSTERS, CHAUFFEURS, ETC., LOCAL 901 909
courts of appeals,27 should impress one with the relative futility of these all-embrac-
ing orders even when they are enforced by decree. They may have a certain moral
force, but that, on balance, does not compensate for the equitable and practical con-
siderations weighting against them.
The General Counsel claims that prior cases demonstrate a subsisting policy or
practice on the part of Respondent to use the secondary boycott weapon in disputes
with employers on the island. He cites Union de Trabajadores de la Gonzalez Chemi-
cal Industries, Inc., et al. (Gonzalez Chemical Industries, Inc.), 128 NLRB 1352,
and two cases in which consent orders and decrees were entered 28 Leaving aside such
considerations as the apparent closeness of the issue in Gonzalez, as reflected by the
3 to 2 reversal of the Trial Examiner, who had exonerated respondent, and that in
the two consent cases, the stipulations expressly preserve the union's position that
consent to the orders is not to be taken as an admission of guilt, it would be enough
to say that each of these cases provides its remedy.for the situations there presented.
It is the Trial Examiner's considered opinion that the reasons, above explicated,
against a broad order, encompassing any future dispute which the Union might have
with any employer in Puerto Rico other than El Imparcial, on fair balance, out-
weight such considerations as 'are advanced in its favor. The purposes of the Act
will be fully subserved by a requirement that Respondent not threaten, restrain, or
coerce any neutrals withan object of forcing them to cease doing business with El
Imparcial. This too goes beyond the precise situation found, since the only class of
neutral found to have been subjected to coercion consisted of users of advertising
space in El Imparcial. However, such as requirement is still'within reasonable
bounds in that it limits itself to the relations of Respondent to the employer with
whom the primary dispute exists and avoids the inequities and unwieldiness of the
"or any other employer" provision here urged.
On the findings above, and on the entire record, the Trial Examiner makes the
following:
CONCLUSION OF LAW
By threatening, coercing, and restraining persons engaged in commerce or in an
industry affecting commerce with an object of forcing or requiring them to cease
doing business with Editorial "El Imparcial," Inc., Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(b) (4) (ii) (B)
of the Act, which affect commerce within the meaning of Section 2(6) and (7) of
the Act.
RECOMMENDATIONS
On the foregoing findings and conclusion, and on the entire record, it is rec-
ommended that Teamsters, Chauffeurs, Warehousemen & Helpers, Local 901,
IBTCW & H of America, its officers, representatives, agents, successors, and assigns,
shall:
1. Cease and desist from breaking windows or causing any other damage to the
property of, or threatening, coercing, or restraining any persons engaged in com-
merce or in an industry affecting commerce, where an object thereof- is to force or
require any person to forego advertising in or to cease doing any other business with
Editorial "El Imparcial," Inc.
2. Take the following affirmative- action which it is found will effectuate the
policies of the Act:
(a) Post at its business office, meeting places, and meeting halls, copies of the
notice attached hereto marked "Appendix." Copies of said notices, to be furnished
by the Board's Regional Director for the Twenty-fourth Region, shall, after being
duly signed by the Respondent's authorized representative, be posted by Respondent
immediately upon receipt thereof, and be maintained by it for a period of 60 con-
secutive days thereafter, in conspicuous places, including all places where notices to
union members, employees, or other persons affected are posted. Reasonable steps
shall be taken by said Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(b) Sign and cause to be delivered to the Regional Director for posting, at cus-
tomary notice-posting places, by the following named persons, if willing:
27 See, e g., Kansas City Power, supra; N L R B. v. Standard Trouser Company, 162 F.
2d 1012 (C.A. 4) ; NLR.B v. Tupelo Garment Company,- 122 F. 2d 603 (CA. 5)
N.L R B v Arcade-Sunshine Co, Inc, 132 F. 2d 8 (C A.D C.).
28 Hermandad de Traba)adores de la Construction, et al . (Levitt Corp ), 127 NLRB
900; Teamsters, Chauffeurs, etc, Local 901, et al. (Industries Freight Service), Case No.
24-CC-59, stipulation dated February 20, 1959; order April 21, 1959; decree (C.A..1)
August 6, 1959.
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Editorial "El Imparcial ," Inc.; Universal Advertising Agency, Inc.; Highley
Advertising Co.; Franklin Stores of P.R ., Inc.; Borinquen Music Corp. (Casa
Wurlitzer ); Gomez Hermanos , Inc.; Goodyear Western, Inc.; Puerto Rico Home
Home Appliances, Inc.; Volkswagen de Puerto Rico, Inc.; Gonzalez Padin Dis-
tributing Corp .; Singer Sewing Machine Co.; F. W . Woolworth Co.; Eastern
Airlines.
(c) Notify the Regional Director for the Twenty -fourth Region , in writing , within
20 days from the receipt of this Intermediate Report, what steps the Respondent has
taken to comply herewith.
It is further recommended that unless the Respondent shall within 20 days from
receipt of this Intermediate Report notify said Regional Director in writing it will
comply with the foregoing recommendations , the National Labor Relations Board
issue an order in accordance with the above.
And it is also recommended that the portions of the complaint , as amended,
alleging the violation of Section 8(b) (4) (i ) (B) in respect to Cerveceria Corona, Inc.,
and Goodyear Western , Inc., and of Section 8 (b) (ii) (B ) in respect to Publicidad
Badillo, Inc., and Star Publishing Corp., be dismissed.
APPENDIX
NOTICE TO ALL MEMBERS AND OTHER PERSONS CONCERNED
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify you that:
WE WILL NOT break windows or cause any to be broken, or cause any other
damage to the property of, or threaten, or otherwise coerce or restrain any of the
companies listed below, or any other person engaged in commerce or in any
industry affecting commerce , where an object thereof is forcing or requiring any
of them or any other such person to forego advertising in El Imparcial or to
cease doing any other business with Editorial "El Imparcial," Inc.
The companies above referred to are : Franklin Stores of Puerto Rico, Inc.,
Borinquen Music Corp. (Casa Wurlitzer); Gomez Hermanos, Inc.; Goodyear
Western, Inc.; Puerto Rico Home Appliances, Inc.; Volkswagen de Puerto
Rico, Inc.; Gonzalez Padin Distributing Corp.; Singer Sewing Machine Co.;
F. W. Woolworth Co.; Eastern Airlines; Universal Advertising Agency, Inc.;
and Highley Advertising Co.
TEAMSTERS , CHAUFFEURS , WAREHOUSEMEN & HELPERS,
LOCAL 901, IBTCW & H OF AMERICA,
Labor Organization.
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.
Plaza Provision Company (P.R.) and Teamsters, Chauffeurs,
Warehousemen and Helpers , Local 901, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Petitioner. Case No. 24-RC-1593. December 1, 1961
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, a hearing was held before Marie B. Poston,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
134 NLRB No. 101.