Teamsters, Chauffeurs, Warehousemen, Etc., Local 901

National Labor Relations Board - Board Decisions

Jan 18, 1961

129 N.L.R.B. 1373 (N.L.R.B. 1961)

TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN, ETC., LOCAL 9 01 1373
Teamsters , Chauffeurs , Warehousemen and Helpers , Local 901,
IBTCW & H of America and Editorial "El Impartial," Inc.
Case No. 24-CB-373. January 18, 1961
DECISION AND ORDER
On September 28, 1960, Trial Examiner Thomas A. Ricci 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 copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief.
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 brief, and the entire record in the case,,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner.
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 the Respondent, Teamsters, Chauf-
feurs, Warehousemen and Helpers, Local 901, IBTCW & H of
America, its officers, representatives, agents, successors, and assigns,
shall :
1. Cease and desist from restraining and coercing employees of
Editorial "El Impartial," Inc., by physically assaulting them or by
threatening to do so to prevent them from working during a strike
or to force them to join a strike, or in any other manner seeking to
restrain or coerce said employees in the exercise of the rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its offices -and meeting halls, copies of the notice attached
to the Intermediate Report marked "Appendix." 1 Copies of said
notice, to be furnished by the Regional Director for the Twenty-fourth
Region, shall, after being duly signed by official representatives of the
i This notice shall be amended by substituting the words "Pursuant to a Decision and
Order" for the words "Pursuant to 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 "Pur-
suant to a Decree of the United States Court of Appeals, Enforcing an Order
129 NLRB No. 145.
1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent, be posted by it immediately upon receipt thereof, and be
maintained for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to its members 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.
(b) Mail signed copies of the said notice to the Regional Director
for the Twenty-fourth Region, for posting by Editorial "El Im-
parcial," Inc., the Company willing, at all locations where notices to
the Company's employees are customarily posted.
(c) Notify the Regional Director for the said Region, in writing,
within 10 days from the date of this Order, what steps the Respondent
has taken to comply herewith.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding, with all parties represented, was heard before the duly designated
Trial Examiner in Santurce, Puerto Rico, on August 29 and 30, 1960, on complaint
of the General Counsel and answer by Teamsters, Chauffeurs, Warehousemen and
Helpers, Local 901, IBTCW & H of America, herein called the Union or the Re-
spondent. The issues litigated are whether the Respondent has violated Section
8(b)(1)(A) of the Act.
Upon the entire record and from my observation of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE COMPANY
Editorial "El Imparcial," Inc., is a corporation organized and existing under the
laws of the Commonwealth of Puerto Rico, with its principal office and place of
business in the city of San Juan, Puerto Rico, where it is engaged in the preparation,
publication, and sale of a daily newspaper known as "El Imparcial." It subscribes
to the news and photo services furnished by International News Service and Inter-
national Photographic Service, which organizations are located and operate through-
out various States of the United States. In connection with the daily publication
and distribution of its newspaper, the Company furnishes advertising space and
services to various companies that manufacture and distribute nationally known
products which are sold throughout various States of the United States and its
territories. During the calendar year 1959 the gross annual income of the Company
from the publication and daily sale of its newspapers was in excess of $1,000,000.
I find that the Company is engaged in commerce within the meaning of the Act, and
that it will effectuate the policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Teamsters, Chauffeurs, Warehousemen and Helpers , Local 901, IBTCW & H of
America, is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Respondent Union engaged in a strike against the Company during May of
1960 and started picketing its place of business on May 24. According to the
complaint the Union, through its agents, engaged in illegally coercive conduct to
bring improper pressure upon employees who sought to continue working during
the strike. Picketing has continued since its inception and was still current at the
time of the hearing. The alleged illegal conduct consists of spoken threats of vio-
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN, ETC., LOCAL 9 01 1375
lence and direct assaults and other physical interference.' There are no other major
issues in this case.
The Respondent 's answer , duly filed , resolves some of the formal issues necessarily
raised by the complaint. Interstate commerce, and the fact the Respondent is a
labor organization, are conceded. Further, the complaint names five persons-
Jaime Amador (president), Federico Virella, (public relations officer), Frank
Montoya (organizer), Humberto Trias (organizer), and Jose Gil de Lamadrid (dele-
gate), as agents of the Respondent within the meaning of Section 2(13) of the Act.
The answer also concedes the status of these individuals as statutory agents of the
Respondent. Accordingly, the sole issue to be decided upon the testimony is
whether or not these five persons in fact engaged in conduct which, under the statute,
constitutes restraint and coercion within the meaning of Section 8(b) (1) (A).
Seven employees of the Company were called as witnesses by the General Counsel
and testified to acts of violence and threatening statements made by the Respondent's
agents. A last witness, Humberto Trias, one of the named Respondent agents,
was also called by the General Counsel. He did no more than authenticate his
earlier affidavit relating to some of the events reported by the preceding witnesses.
The Respondent called no witnesses and introduced no affirmative evidence in support
of any defense.
Thus, the testimony given in support of the essential complaint allegations stands
totally uncontradicted on the record by any opposing or conflicting witnesses. In
substance, the testimony is mutually corroborative, direct, clear, and credible. I
saw nothing in the demeanor of the General Counsel's witnesses that would warrant
rejection of their testimony. In his cross-examination of two of the witnesses, counsel
for the Respondent brought out some very minor variances in dates, only as to some
of the events, between their oral testimony and earlier affidavits. Respondent's
counsel also brought out the fact that some of the witnesses, after the events here
involved, have signed cards in favor of another union. He contended that these
facts alone require rejection of all the testimony given by all the General Counsel's
witnesses. For reasons explained hereafter, I find his contention generally unper-
suasive on the entire record. Accordingly, as the testimony is mutually corrobora-
tive, plausible, clear, direct, and essentially uncontradicted, I credit the General
Counsel's witnesses. No useful purpose would be served by setting out the testimony
in terms of which individual witnesses testified to which event, and which of them
corroborated others. I will instead set out the facts as they are clearly established
by the totality of their stories.
On May 24, 1960, the first day of the strike, the Union established a picket line
at the Company's building. When Garcia Castillo, an ilustrator, arrived for work,
Trias, the organizer, put his hands on Castillo's chest and said to him: "We are going
to beat you up if you go in to work."
When Julio Gonzales, a telegraph operator, approached the building to go to
work on Thursday morning, May 26, he saw Federico Virella, the Respondent's
public relations officer, carrying a sign. Virella said to Gonzales: "Behave yourself,
Juleto, because we are watching for you around ,the corner." Juleto is the diminutive
name for Julio. James Horacio also came to work that morning As he neared
the building Triers said to him: "If you go to work, I going to hit you." Trias made
a similar threat to Colazzo, another employee on his way to work, and then several
men, including Trias, "got a hold of him [Colazzo] and got him into the picket line."
Jose Hernandez, a messenger, left the building for lunch at about 11:30 on Thurs-
day, May 26. He passed near Trias who stood nearby, and, as he did so, Trias
grabbed him by the legs, threw him down, and began striking him with blows all
over the body. Trias even kicked Hernandez in the chest when he was down. A
striking employee who was with Trias then also began kicking Hernandez to prevent
him from rising.
Also on Thursday, May 26, a group of nonstriking employees were leaving the
building shortly after 5 p.m. Trias walked up to one of them-Oswaldo Castillo-
and struck him from behind, causing him to fall to the ground bleeding Castillo
dropped two briefcases he was carrying when he fell down. Garcia Castillo, who
was also leaving -the building at that time with Oswaldo, stooped to pick up the
1 Section 8(b) (1) (A), the only proscriptive section of the statute said to have been
violated by the Respondent in this case, reads as follows-
Sec 8(b). It shall be an unfair labor practice for a labor organization or its
agents-
(1) to restrain or coerce . . employees in the exercise of the rights guar-
anteed in Section 7: . . .
1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
packages . As he did so, Lamadrid, the union delegate who was with Trias, punched
Castillo several times in the head.
On May 29, as Garcia Castillo approached the building early in the morning to
go to work , a group of eight or more strikers approached him. Among them was
Trias, with "his hands in fists," and said to Castillo : "don't go to work ." Castillo
pretended to reach into his pocket fora weapon , and proceeded to enter the building.
At about the same time a group of strikers , among them Trias and Virella, ran
toward Horacio also coming to work , as though to attack him, with one of them,
an employee named Feliciano , holding a camera high above his head.
On June 3, at 5 p .m., Rousset , a sports editor who had remained in the building
night and day for several days, decided to visit his home. When he saw a group of
strikers he tried to reenter the door, and as he did so, with "a lot of people picketing
there," Trias kicked him from behind . Trias and Rousset were then taken to the
police station by the police , and, in front of the station , Trias said to Rousset: "not
to go to work anymore, and if I wanted to, I could tell the officers of El Imparcial
that they had threatened me with death, that I could say that's an excuse and not
to go to work anymore " Later, at about 1 a.m. during the night , Rousset attempted
again to leave the building, this time with a friend . A crowd of strikers gathered
about the automobile ; among them was Montoya , an organizer . They surrounded
the car; Montoya ran around to the side in which Rousset sat and "with a big piece
of wood struck the front glass and shattered it to pieces."
Later that same day, Rafael Berrios, a photographer employed by the Company,
as instructed by his superiors took a picture of Lamadrid on the picket line Re-
sentful, Lamadrid approached him in a threatening manner. At that moment Trias,
from behind Berrios, kicked the camera in his hands. Lamadrid had previously
said to Berrios : "I'm going to get you if you keep coming in to the paper." Trias
again was quickly arrested
A final incident occurred on June 6, while Berrios was leaving the building after
work. Amador, the union president , approached him from behind , grabbed a
manila envelope Berrios was carrying and attempted to wrestle it away from him.
As stated above, despite the fact all of the sworn testimony upon which the fore-
going fact findings rest is completely uncontradicted by any witnesses for the Re-
spondent , its counsel suggests the witnesses ought not be believed The first, and the
only definitive ground he advanced , is a deviation in dates, in the case of two wit-
nesses , between their testimony and their earlier affidavit . Witness Hernandez, who
testified that Trias attacked him at lunchtime on May 26, set the date of that incident
as May 25 in his affidavit given on June 16, 1960, to a Board agent . In all other
respects his affidavit , received in evidence , conforms precisely with his testimony
as to other events and with the testimony of other witnesses . Like Hernandez,
Garcia Castillo admitted , during cross -examination , that in a statement he gave the
Board agent on June 10 , 1960, he set the date of Trias' first threat to him as having
been made on May 26; at the hearing he said it occurred Tuesday, May 24, the first
day of the strike . Castillo's affidavit was not offered into evidence.
At best, these variances in dates can put in question only the two incidents in-
volved , and cannot serve to cast any substantial doubt upon the testimony of any of
the other witnesses Hernandez was positive at the hearing that Trias attacked him
the same day ( May 26 ) that he witnessed the attack by Trias and Lamadrid upnn
Garcia Castillo and 0 Castillo; he explained the different date appearing in the affi-
davit as a "confusion ." With the rest of his testimony completely uncontradicted,
with Trias shown in any event as having on several other occasions committed like
acts of violence at about the same time , and with Trias appearing at the hearing but
choosing not to deny the assault upon Hernandez , I believe the witness' explanation
concerning his earlier affidavit.
Garcia Castillo 's only explanation of the different date appearing in his earlier
affidavit was that so soon after the attack upon him which left him bleeding on the
ground, he was "tense ," and must therefore have been mistaken . The considerations
on the total record , which lead me to attach little significance to Hernandez' "con-
fusion" in dates-particularly the fact that the substance of these witnesses ' testimony
stands unchallenged-persuades me to credit the unequivocal , firm, and repeated
insistence of both Hernandez and Garcia Castillo that their calmer recollection now
is correct 2
2 In cumulative support of the veracity of his witnesses , the General Counsel also placed
into evidence an affidavit given by Trims on Tune 29, 1960, in which he literally admits to
several of the acts of violence upon nonstrikers related by the witnesses at the hearing
The General Counsel's theory on admissibility here is that the affidavit is an admission
against interest binding upon the Respondent . The record does not clearly establish the
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN, ETC., LOCAL 901 1377
As a further ground for contending that none of the General Counsel' s witnesses
should be believed, the Respondent showed, again largely through cross-examination,
that shortly after these events, the Seafarers International Union (SIU) instituted
an organizational campaign among the Company's employees, and that, on June 6,
1960, that union also started to picket the same premises. Four of the employee
witnesses-Hernandez, Horacio, Gonzales, and Berrios, signed cards in favor of
the SIU, apparently after the incidents of which they testified. It also appears, in
the testimony of some of these witnesses, that when later, SIU representatives did
picket, they "helped" these men enter the building to go to work.
The Respondent's counsel also asked that I take notice of certain other Board
proceedings, which I understand him to say impugn the veracity of these witnesses.
Teamster Local 901, the Respondent here, competed in a Board-conducted election
on April 25, 1960, among the Company's editorial room employees; on objections
the results of that election were set aside. On April 4, 1960, the Respondent also
filed a charge (Case No. 24-CA-1293) against the Company alleging violations of
Section 8(a) (1) of the Act; a hearing before a Trial Examiner on a complaint in
that case "has been completed." On March 21, 1960, Asociacion de Fotografos,
Camarografos e Tecnicos da Prensa de Puerto Rico was certified by the Board (Case
No. 24-RC-1375) as bargaining representative for the Company's employees in a
photographic employee unit. And finally, the Respondent Teamsters also filed
charges (Case No. 24-CB-374) against the SIU, alleging illegal restraint and coer-
cion upon employees in violation of Section 8(b) (1) (A) of the statute; a complaint
was issued in that case and awaits hearing before a Trial Examiner. Respondent's
counsel stated at the hearing that the complaint in this last case alleges, among
other things, assaults by SIU agents upon the pickets of Teamster Local 901. From
this congeries of events, I am to conclude, according to the Respondent's counsel, that
all the General Counsel's witnesses lied. I am unable to do so.
The Respondent has not articulated any reasoning, any theory, whereby it must
follow that because more than one union may be competing for representative status
among employees of the same employer, any witnesses testifying against the interests
of one of the unions necessarily fabricates a story. This means that I must bridge
the gap in reasoning with e presumption of perjury. If the presumption is warranted
here, it must apply in every case where competing unions are involved. I have no
reason to believe that company representatives have misconducted themselves, as,
apparently, is alleged in the outstanding complaint in Case No. 34-CA-1293, or that
agents of the SIU, as set out in the various paragraphs in the complaint in Case No.
24-CB-374, have illegally coerced employees or assaulted the pickets of Local 901.
Undoubtedly the Respondent's argument proceeds on the unspoken belief that all
this will be proved to the Board's satisfaction. But even assuming the commission
of unfair labor practices by both the Company 'and the SIU, the Respondent's con-
tention here, logically extended, must lead to the further proposition that in such a
situation no one is to be believed, that all a respondent in such a complex of cross
complaints need do is stand mute to escape judgment, and, ultimately, that miscon-
duct by one party justifies and excuses misconduct by another. What all this ignores
is that the statute underlying all of these proceedings is inherently concerned with
the rights of employees to be free from illegal restraint and coercion in their selec-
tion and rejection of any union, and not with the balancing of conflicting interest of
competing labor organizations, or with the relative degree of misconduct shown to
have been committed by unions or employers, against the employees themselves.
I will not permit such assumptions, or, more correctly, suspicions of ulterior moti-
vation and consequently outright fabrication, to become substitutes for sworn
testimony given in open court, direct and mutually corroborative stories, and the
more natural inference arising from the failure of the Respondent or any of its named
agents to stand up and, under oath, give the lie to the damaging sworn testimony
nature and extent of Trias' agency relationship with Local 901 ; It shows only, by ad-
mission in the answer, that he is an agent within the meaning of Section 2(13) of the
statute While such agency status suffices to meet the statutory requirement of Section
8(b) (1) (A), there is a serious question on the record as a whole whether Trias was also
shown to be sufficiently high in the officer or managerial circle of the Union to warrant
use of his affidavit as affirmative evidence of the truth of its contents, or as an admission
against the interests of the Respondent Accordingly, my findings of fact here are not
based to any extent whatever upon that affidavit, and my conviction that the General
Counsel's witnesses must be believed in no sense rests upon Trias' prior statements In
writing this report, I have given no consideration whatever to General Counsel's Exhibit
No 2
586439-61-vol 129-88
1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Government witnesses. Even were I to assume, which I do not do, that there is
truth and substance in the cross charges and complaints of misconduct against the
Company and the competing SIU, I would still be primarily concerned with the re-
straint and coercion which such misconduct has upon employees seeking to work,
or to ignore the concerted activities of fellow employees. The statutory taint color-
ing the activities of the Respondent's agents in this case is the coercive effect of
physical assaults nand threats of violence upon employees in their legally guaranteed
privilege to decide freely, and without such illegal restraint, whether or not they
desired to join the strike of Local 901.
Accordingly I find that by each of the following acts of its agents the Respondent
violated Section 8(b) (1) (A) of the statute.
1. Organizer Trias' action in putting his hands on Garcia Castillo's chest and his
threat to beat him on May 24, 1960.
2. Public Relations Officer Virella's statement to employee Gonzales on May 26 to
behave himself because the union agents were watching him. In the context of all
that the Respondent's agent did at this picket line that day, this was clearly a threat
of possible violence upon Gonzales' person.
3. The threat by Trias to Horacio on May 26 early in the morning that if he went
to work Trias would hit him.
4. The physical assault by Trias upon employee Hernandez on May 26.
5. The physical assault by Trias upon Oswaldo Castillo at 5 p.m. on May 26, and
the assault by Delegate Lamadrid upon Garcia Castillo at the same time and place.
6. The threatening gesture of violence by Trias to Garcia Castillo on May 29, and
the like threat by Trias and Virella to Horacio at about the same time.
7. The physical assault by Trias upon Rousset, a supervisory employee, in the pres-
ence of rank-and-file employees at the door of the building on June 3, and his state-
ment to Rousset to tell company officials Trias had threatened to kill Rousset if he
continued working. In view of Tnas' widespread hoodlum tactics shown by the
entire record, his oblique suggestion about killing people to keep them from working
was quite the same as an outright threat. In the general picture of his behavior, his
statement was no less a threat because it may have been intended only to create the
impression that he was making such threats.
8. Organizer Montoya's act in smashing the window of the automobile in which
Rousset was leaving the plant on June 3.
9. Trias' action in kicking a camera in the hands of employee Berrios on June 3.
10. The act of Respondent's President Amador in seizing the briefcase of employee
Berrios on June 6 as he left the building.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in connec-
tion with the operations of the Company 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 of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I
shall recommend that it be ordered to cease and desist therefrom and that it take cer-
tain affirmative action designed to effectuate the policies of the Act.
Upon the foregoing findings of fact and upon the entire record, I make the
following:
CONCLUSIONS OF LAW
1. Teamsters, Chauffeurs, Warehousemen and Helpers, Local 901, IBTCW & H of
America, is a labor organization within the meaning of Section 2(5) of the Act.
2. By physically assaulting employees and by threatening to inflict bodily injury
upon employees for the purpose of compelling them to cease work and to engage in
a strike, the Respondent has restrained and coerced the employees of Editorial "El
Imparcial," Inc., in the exercise of rights guaranteed by Section 7 of the Act, and has
thereby engaged in and is engaging in unfair labor practices affecting commerce
within the meaning of Section 8 (b) (1) (A) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
INT'L UNION OF ELECTRICAL, ETC., FRIGIDAIRE LOCAL 801 1379
APPENDIX
NOTICE TO ALL OUR MEMBERS , OFFICERS, REPRESENTATIVES AND AGENTS AND
TO ALL EMPLOYEES OF EDITORIAL "EL IMPARCIAL," INC.
Pursuant to the recommendations of a Trial Examiner of the National Labor Rela-
tions Board, and in order to effectuate the policies of the National Labor Relations
Act, we hereby notify you that:
WE WILL NOT physically assault or threaten to inflict bodily injury upon em-
ployees of Editorial "El Impartial," Inc., for the purpose of compelling them to
cease work and to engage in a strike.
WE WILL NOT in any other manner restrain or coerce employees of Editorial
"El Impartial," Inc., in the exercise of their rights guaranteed in Section 7 of the
Act, as amended, including the right to refrain from any or all concerted activi-
ties as guaranteed by the Act.
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND 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.
International Union of Electrical , Radio and Machine Workers,
AFL-CIO, Frigidaire Local 801 (General Motors Corporation,
Frigidaire Division ) and Donald L. Snyder
General Motors Corporation , Frigidaire Division and Donald L.
Snyder. Cases Nos. 9-CB-77f2 and 9-CA-1924. January 19, 1961
DECISION AND ORDER
On May 3, 1960, Trial Examiner W. Gerard Ryan issued his Inter-
mediate Report in this case, finding that the Respondents had not
violated Section 8(a) (3) and (1) and Section 8(b) (2) and (1) (A)
of the Act, as alleged in the complaints, and recommending that the
complaints be dismissed in their entirety, as set forth in the copy of
the Intermediate Report attached hereto. Thereafter the General
Counsel filed exceptions to the Intermediate Report, and a brief in
support of the exceptions, and the Respondents filed briefs in support
of the Intermediate Report.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in this
case, and finds merit in the General Counsel's exceptions. Accord-
ingly, the Board hereby adopts the findings of fact of the Trial Ex-
aminer, but not his conclusions or recommendations.
129 NLRB No. 169.