Teamsters, Local 901

National Labor Relations Board - Board Decisions

Aug 18, 1967

167 N.L.R.B. 135 (N.L.R.B. 1967)

TEAMSTERS, LOCAL 901
Teamsters, Chauffeurs , Warehousemen and Helpers,
Local 901 , International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers of
America (Interstate Air Service Corp.) and Jose
Ramos , Ernesto Lopez , Julio Figueroa , Ismael
Perez Quiles and Mario Hernandez Ortiz. Case
24-CB-593 (1-5)1
August 18, 1967
DECISION AND ORDER
CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On June 5, 1967, Trial Examiner Sidney J. Bar-
ban issued his Decision in the above-entitled
proceeding, finding that 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 attached Trial Examiner's Decision.
The Trial Examiner further found that Respondent
had not engaged in certain other unfair labor prac-
tices alleged in the complaint and recommended
dismissal as to them. Thereafter, the General Coun-
sel and the Respondent filed exceptions to the
Decision, together with supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
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
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the Respondent, Teamsters, Chauffeurs,
Warehousemen and Helpers, Local 901, Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Santurce,
Puerto Rico, its agents, officers, and representa-
tives, shall take the action set forth in the Trial Ex-
aminer's Recommended Order, as modified herein:
Delete Appendix B attached to the Trial Ex-
aminer's Decision and substitute the attached
notice.
' This case was consolidated for hearing before the Trial Examiner with
Case 24-CA-2288 (1-5) No statement of exceptions having been filed
135
with respect to the Trial Examiner' s findings in Case 24-CA-2288 (1-5),
by Order of the Board, dated July 13, 1967, Case 24-CA-2288 (1-5) was
severed from the instant case
2 In affirming the Trial Examiner's dismissal of the allegation that
Respondent violated Sec 8(b)(1)(A) by failing or refusing to process
grievances of the discharged employees, we rely solely on the failure of
the General Counsel to establish by a preponderance of the evidence that
the Charging Parties had effectively invoked the grievance machinery
herein.
Additionally, while we adopt the Trial Examiner's finding that Re-
spondent violated 8(b(l)(A) by instructing employees not to cooperate
with Board agents during investigation of pending charges , in doing so, we
rely upon the fact that, as such conduct occurred in a context of a com-
mon effort by Respondent and the Employer to thwart activities on behalf
of a rival labor organization , Respondent thereby restrained and coerced
employees in their free access to the remedial processes of the Board
Accordingly, we need not pass upon whether said instructions, as found
by the Trial Examiner, also violated Respondent's duty to fairly and in
good faith represent the employees
APPENDIX B
NOTICE TO ALL MEMBERS OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS, LOCAL
901, INTERNATIONAL BROTHERHOOD OF TEAM-
STERS, CHAUFFEURS, WAREHOUSEMEN AND
HELPERS OF AMERICA
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify you that:
WE WILL NOT restrain or coerce employees
of Interstate Air Service Corp. by threatening
them with, or causing them, loss of work or em-
ployment, or other detriment, if they aid or sup-
port International Association of Machinists
and Aerospace Workers, AFL-CIO, or any
other labor organization.
WE WILL NOT obstruct the processes of the
National Labor Relations Board by instructing,
advising, or threatening employees not to
cooperate with agents of the Board, or to
withhold information from the Board.
WE WILL NOT in any other manner restrain
or coerce employees in the exercise of their
rights guaranteed by the Act.
TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN
AND HELPERS, LOCAL
901, INTERNATIONAL
BROTHERHOOD OF TEAM-
STERS, CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS OF AMERICA
(Labor Organization)
Dated By
(Representative ) (Title)
167 NLRB No. 19
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered , defaced , or covered by any other material.
If members have any question concerning this
notice or compliance with its provisions , they may
communicate directly with the Board 's Regional
Office , 7th Floor, El Hato Rey Building , 255 Ponce
De Leon Avenue , Hato Rey, Puerto Rico 00919,
Telephone 765-1125.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
SIDNEY J. BARBAN, Trial Examiner: This matter was
heard at Santurce, Puerto Rico, on February 20,1 21, 22,
and 23, 1967, upon complaints issued against the above-
named Respondents on December 13, 1966, as thereafter
amended, and an order consolidating cases issued Janua-
ry 11, 1967. The complaints, which are based on charges
filed by the above-named Charging Parties on either Oc-
tober 21 or 24, 1966, alleges that Teamsters, Chauffeurs,
Warehousemen and Helpers, Local 901, I.B.T.C.W. & H
of A. (herein called the Teamsters) engaged in conduct in
violation of Section 8(b)(1)(A) of the Act, and that In-
terstate Air Service Corp. (herein called Interstate) en-
gaged in conduct in violation of Section 8(a)(1) and (3) of
the Act. Respondents' answers deny any violation of the
Act. Prior to the conclusion of the General Counsel's
case, both Respondent Teamsters and Respondent In-
terstate withdrew from the hearing and presented no
defense.
Upon the entire record in this case,2 from observation
of the witnesses, and after due consideration of the oral
argument of General Counsel and the brief received from
Respondent Teamsters,3 I make the following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF RESPONDENT INTERSTATE
Respondent Interstate, a corporation organized and ex-
isting under the laws of Puerto Rico, is engaged in provid-
ing services at Isla Verde International Airport, Isla
Verde, Puerto Rico, for airline companies engaged in in-
terstate and foreign commerce, including the loading and
unloading, interior and exterior cleaning, and other main-
tenance of aircraft, baggage delivery, warehouse service,
and aviation gas products. During the 12 months preced-
' Respondent Interstate made no appearance at the opening of the hear-
ing on February 20, and the heanng was adjourned to February 21, at
which time Respondent Interstate and its counsel made an appearance.
% After the close of the hearing, the General Counsel, at my direction,
advised the parties concerning an exhibit received after they had
withdrawn from the hearing A copy of General Counsel's letter to the
parties dated February 24, 1967, has been marked TX Exh 1, and the
General Counsel's letter to the Trial Examiner dated March 8, 1967
(showing copies sent to the parties), with respect to proof of service has
been marked TX Exh. 2, and both are received into evidence No objec-
tion has been received to the exhibit from any party
3 Time for filing briefs was extended to April 17, 1967, at the request of
the Teamsters, and its original brief was timely filed On May 17, 1967, 1
received a supplemental memorandum from the Teamsters asserting that
(1) the Board is without jurisdiction over this matter, an issue which was
raised at the heanng, and (2) that I had deprived the Teamsters of due
process by limiting cross -examination of witness Echaverria and stating
ing the issuance of the complaint , interstate furnished
goods and services valued in excess of $50 ,000 to airline
companies engaged in the transportation of passengers
and cargo between Puerto Rico and the U.S. mainland
and foreign countries.
Although both Respondents admitted the above facts
and agreed in their answers to the complaints that In-
terstate is an employer in commerce and/or affecting
commerce within the meaning of Section 2 (6) and (7) of
the Act, at the hearing each took the position that In-
terstate is a person subject to the Railway Labor Act and
thus is not an employer within the meaning of the Act.
Further , pursuant to a petition filed by International
Association of Machinists and Aerospace Workers,
AFL-CIO (herein called the Machinists) under Section
9(c) of the Act and a hearing held on that petition , a Deci-
sion and Direction of Election was issued by the Regional
Director of the Board in Case 24-RC-3059, on February
8, 1967 , asserting jurisdiction over Interstate . No request
for review of the Regional Director 's Decision was filed
with the Board as provided in Section 102 .67 of the
Board 's Rules and Regulations , Series 8, as amended.
Upon the basis of the facts set forth , it is found that
Respondent Interstate is an employer in commerce or af-
fecting commerce within the meaning of Section 2(2), (6),
and (7 ) of the Act and that it will effectuate the policies of
the Act to assert jurisdiction over this matter. See
Bradley Flying Service, Inc., 131 NLR B 437.
11. LABOR ORGANIZATIONS
Respondent Teamsters and the Machinists are labor
organizations within the meaning of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. The Basic Issues
Interstate's employees here involved have been, and
were at times material herein, represented by Respondent
Teamsters under a collective-bargaining agreement.
Because of dissatisfaction with the Teamsters, a group of
employees on the night shift at Interstate's operations en-
gaged in activities to change their representation to the
Machinists. On October 20, 21, and 22, Interstate
discharged five of these employees. It is contended that
these discharges violated the Act. It is also asserted that
Interstate engaged in certain other conduct which inter-
fered with, restrained, or coerced the employees in the
exercise of their rights under the Act. It is further con-
that "It was this very refusal on the part of the Trial Examiner to receive
this evidence which prompted the defendant union to withdraw from the
hearing convinced that if it were not allowed to cross-examine this witness
of (sic) material issues to its case, it was futile to remain in the hearing
room " On May 18, 1967, a letter was received from counsel for In-
terstate, dated May 11, but postmarked May 16, 1967, stating that it was
not filing a brief in this case "considering that its rights were prejudiced
during the hearing" and asserting that the evidence submitted does not
support the complaint While these documents are tardy, I consider that
the due process issue raised should be treated as a motion to dismiss on
that ground and, for that purpose, receive Teamsters' supplemental
memorandum in evidence as TX Exh. 3 and Interstate's letter as TX Exh
4 in evidence. While it is considered that the record as a whole, on its face,
shows the contentions to be without merit, a discussion of the matters in-
volved will be added toward the end of the draft of this Decision already
completed when these documents were received.
TEAMSTERS, LOCAL 901 137
tended that the Teamsters, by assertedly failing or refus-
ing to fairly and in good faith represent the discharged
employees in respect to their employment, and by other
acts and conduct, restrained and coerced employees in
the exercise of their rights under the Act General Coun-
sel does not contend that he has adduced proof that the
Teamsters caused the discharge of the five employees
here involved.
their employment and the employees were well justified
in accepting his statements within the ambit of such ap-
parent authority as the statements of Interstate.
Respondent Teamsters admit that Frank Chavez,
secretary-treasurer, Frederico Virella, public relations of-
ficer, and Pito Colon, organizer for the Teamsters, are of-
ficers and agents of the Teamsters within the meaning of
the Act.
B Supervisory Questions, Agency
Interstate admits that Jose A. Santana, president of the
corporation, is a supervisor and agent of Interstate, but
disputes the allegation that Luis M DeJesus, Tirzo Mar-
rero, and Arsenio Nieves are supervisors or agents of In-
terstate. DeJesus described himself as the general
manager of the operations and agreed that he is "the top
man" at the Isla Verde operations when Santana is not
there The record is persuasive that he has authority to
hire employees and that he responsibly participates in the
discipline, direction, and discharge of employees. He is
clearly a supervisor and agent of Interstate within the
meaning of the Act
Marrero directs the work of the employees on the night
shift, assigns the work, instructs employees when to take
their lunch break, which may vary from day to day, tells
them when to punch out and leave if there is no work, and
has authority to release them from work in the case of
sickness during the shift. He is paid by the week rather
than by the hour as are the employees covered by the
Teamsters' agreement. Whereas the hourly rated em-
ployees wear coveralls at their work, Marrero wears a
distinctive uniform of green pants and grey shirt. DeJesus
without hesitation described Marrero as the supervisor in
charge of the shift On the basis of all of the evidence it is
found that Marrero is a supervisor and agent of Interstate
within the meaning of the Act
DeJesus indicated that Nieves, who is employed on the
morning shift, did not have the same authority as Mar-
rero, and, in particular, was supposed to consult with San-
tana or DeJesus before taking certain personnel actions.
Nieves is also hourly paid.4 There appears to be a
question as to whether he is a member of the Teamsters
or covered by the collective-bargaining agreement, all of
the evidence on the point being hearsay raising more
doubts than it resolves. On the whole, the testimony of
the employees is that Nieves, in the absence of DeJesus,
exercises the same authority over the employees on the
morning shift as Marrero on the night shift. DeJesus ad-
,mitted that Nieves' duties are to make sure that "the men
do the right job and do what they are supposed to do,"
and that Nieves is "in charge of organizing so that the
work will be done." Significantly, DeJesus testified that
the reason Nieves wears a uniform like Marrero and dif-
ferent from the other workers was "because practically
he is guiding the group, leading the group " DeJesus
further indicated that Nieves was expected to inform
management of his criticisms of the employees on the
morning shift Upon all the evidence it is found that
Nieves has authority to responsibly direct employees on
the morning shift in their work and is thus a supervisor
within the meaning of the Act. It is further plain that in-
terstate held Nieves out to the employees as the conduit
of views and instructions of management in matters of
" Although DeJesus testified that Nieves was paid the same amount as
the other workers , "figuring the hours ," he later stated that he did not
know Nieves' rate of pay because of unfamiliarity with "the accounting
C. The Facts
In the summer months of 1966, because of discontent
with representation by the Teamsters , some members of
the night shift at Interstate took the initiative in seeking
out the Machinists and securing Machinists cards. There
was considerable discussion of this matter on company
property during breaks and while the employees awaited
work on the night shift This activity accelerated about
the end of September 1966, when active card signing
began, some of which was on Interstate property, ap-
parently after work Prior to that time, Lopez, one of the
employees discharged , had displayed a Machinists card
of distinctive green hue during a discussion with Negron,
a shop steward for the Machinists who worked for an air-
line named in the record only as "Transcaribbean ," while
Supervisor Marrero was close by It appears that Mar-
rero was acquainted with Negron and undoubtedly knew
of his position.
The record as a whole leaves no doubt that the five
Charging Parties were leaders of the Machinists move-
ment, although not the only active participants in this ef-
fort Different ones among the Charging Parties were in-
volved in contacting the Machinists, securing cards, dis-
tributing them , getting them signed , and turning them in.
Some of them visited the homes of employees together
with other employees , to secure the execution of Machin-
ists cards . All five Charging Parties are identified as hav-
ing been vocal in discussing with other employees the ad-
vantages of Machinists representation over that provided
by the Teamsters, and all attended meetings of the em-
ployees on company property and at an employee's
home. During this period, the night -shift employees, who
appear to have numbered no more than 10, sought sup-
port from the morning shift, and eventually succeeded in
securing at least 20 cards for the Machinists from the em-
ployees
While this was occurring, Nieves told Quinones, an
employee on the morning shift, that there were rumors of
elections to bring in another union , that Quinones should
be careful because the employees involved in that effort
would be discharged.
About this same time, Marrero told the night -shift em-
ployees on their way to service a plane , that five em-
ployees were going to be discharged and indicated that
others were " in line." Marrero did not state the reason for
the anticipated discharges or the names of those to be
discharged.
Also during this period , Santana, the president of in-
terstate, told Martinez, the shop steward for the Team-
sters at Interstate , that Santana had heard rumors that the
employees were signing cards for another union, and
requested Martinez "to find out, to investigate ." Later,
on an occasion when Martinez , Santana, and DeJesus
were together , prior to the discharge of the Charging
end of the business " He also testified that Nieves did not work longer
hours than the other employees DeJesus' testimony that Nieves is paid
the same rate as other employees is not credited
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Parties, Santana asked Martinez about the results of the
investigation he had been requested to make. When Mar-
tinez said that he did not know anything (which was not
true), DeJesus said that "he knew something about that,
that someone had informed him."
At the end of the workday on October 20, 1966,
Ramos and Figueroa, who were employed on the night
shift, were called into an office by Marrero and given let-
ters signed by DeJesus terminating their employment.
These letters, and the letters subsequently given to
Lopez, Perez, and Hernandez,' are identical and read as
follows [in translation]:
This is to notify you that effective immediately you
are suspended indefinitivly [sic].
It is the opinion of our management and supervisors
that your attitude and conduct at work leave much to
be desired.
Please visit our office and hand in our company's
property.
Marrero told Ramos and Figueroa that he was sorry to
have to give them the letter, that it did not reflect his
feelings, and , in fact did not come from him or from "the
company, but from the union ." It is clear that the
reference was to the Teamsters and it is so found. Mar-
rero further informed them that three others , naming
Lopez, Perez, and Hernandez , all of whom were then on
their regular days off, were also to be discharged.
On October 21, 1966 , upon reporting for work on the
night shift , Lopez and Hernandez were given copies of
the letter addressed to them . Hernandez asked DeJesus
the reason for his termination and was told "that there
were some complaints from the supervisor that
[Hernandez] did just what [he] wanted."
On October 22, 1966, Perez, also employed on the
night shift, received his letter from Marrero. Perez
credibly testified that when he had read the letter, and
"realized I was discharged," "I asked him what this was
about, if I had done anything wrong in those days and if
he had anything against me." Marrero replied, as Perez
states, "that we knew there had never been any problems
from either side, that he knew all of us, and that he was
very sorry but I knew where that letter was coming
from."
There is no evidence that the employees had engaged
in any conduct giving cause for their termination . It does
not appear that they had been criticized for their work or
their conduct during the period immediately prior to
receiving DeJesus' letter, nor had they been previously
warned , nor had any unusual occurrence taken place that
might explain Interstate 's action.
After the discharges,,Negron, who was a shop steward
for the Machinists and worked for Transcaribbean, a
principal client of Interstate, had a conversation with
Marrero about the discharges. This occurred in a work
area apparently used by both men . In this conversation,
Negron asked Marrero why the boys had been
discharged , and Marrero said , in Negron's words, "that
the reason that the boys had been fired was because they
were signing cards for the IAM." Marrero told Negron
that the discharges were "not the company's doing,"but
was "the union ' s doing." Again , it is clear that the
5 Although the charges filed and the complaint in Case 24-CA-2288
shows the names of Ismael Perez Quiles and Mario Hernandez Ortiz, the
reference to the "union 's doing" was to the Teamsters
and was so understood by Negron.
The employees made some effort to bring their
discharges to the attention of the Teamsters. Lopez and
Figueroa separately went to Shop Steward Martinez and
ascertained that Martinez had copies of the letters of ter-
mination . Martinez told Figueroa that he "was going to
the union to take the case to Mr. Chavez." However,
when he got to the Teamsters' hall, he found that Chavez
was not in Puerto Rico , and he did nothing about the
matter thereafter. Hernandez and Perez went to the
Teamsters' hall on two occasions about their termination.
They were ultimately referred to Pito Colon as the
representative then handling Interstate problems. Colon
told them that he had just been assigned to handle the
problems of Interstate employees and, as stated by Her-
nandez, said , " I don't have any jurisdiction in this case.
The only one who has jurisdiction is Mr. Frank Chavez."
Colon stated that Chavez was then in New York. Her-
nandez testified that he made no further attempt to see
Chavez because after leaving the Teamsters ' hall, the
men went to the Regional Office of the Board and filed
charges.
In the middle of November 1966, Santana called a
meeting of the employees on the morning shift at which
Santana told the employees that a Mr. Paz, an investiga-
tor from the National Labor Relations Board , was going
to ask them questions about the employees who had been
discharged and advised them that they did not have to
give Paz any information, and, in fact, should tell Paz,
when questioned , that they did not know the employees
who had been fired. Santana said that if the employees
gave Paz any information the employees would become
"involved in the Federal Court ." Both DeJesus and
Nieves were present at the meeting.
About this same time, probably on the same day as the
foregoing , the night- shift employees were called to a
meeting in DeJesus' office by the management of In-
terstate. Santana left the office as soon as the meeting
began. No other supervisor remained. The group was
then addressed by Representative Virella of the Team-
sters. The several accounts in the record vary slightly and
that of employee Fabian is credited , as follows: "Mr.
Virella said that we were going to be investigated, that a
gentleman , Mr. Santiago Paz, was going to make an in-
vestigation , was going to investigate us, and for us not to
say anything to him , to tell Mr. Santiago Paz to ask Mr.
Tony Santana."
A number of Interstate employees on the night shift at-
tended a meeting at the Teamsters hall in January 1967,
at which Chavez and Virella spoke. They were excused
from work by Santana to attend this meeting. There are
some slight variations as to what occurred among the wit-
nesses who testified. The following is found to have oc-
curred: The employees asked that a representative be as-
signed to their operation to assist them . Chavez agreed to
this and told the employees that if the Teamsters were
successful in the forthcoming representation election to
be held on the petition of the Machinists , he would
negotiate increased benefits for them. Chavez and Virella
told the employees that there was a clause in the current
Teamsters contract with Transcaribbean, providing that
record refers to them as Ismael Perez and Mario Hernandez , and they will
be thus referred to herein
TEAMSTERS , LOCAL 901
Transcaribbean would not subcontract any of the work of
the unit covered by that contracts Chavez told the em-
ployees that if the Machinists should win the election, as
stated by employee Fabian, "we would disappear from
our work." Virella, who was holding a copy of the Trans-
caribbean agreement in his hand, stated, as Fabian
testified, "That if the IAM won the election and we went
on strike against Transcaribbean, that if by chance we
should have to strike against Transcaribbean, they would
feel obliged to protect Transcaribbean."
In the middle of January, Santana and an unidentified
"American " spoke to a meeting of the morning-shift em-
ployees. None of the witnesses questioned were able to
testify as to the statements made by the American who
spoke. It is found that the following testimony of em-
ployee Quinones accurately expressed what Santana
stated to them on this occasion : Santana said , " Boys, I
am going to take the opportunity now that all of you of the
morning group are here together to tell you that you are
trying to bring another union in here , and I want to let you
know that if you do that, I am going to deliver the con-
tract to Transcaribbean and all of you are going to be left
without work, because Transcaribbean has a clause in the
contract that they can pick their own personnel." It is
further found, on the basis of the whole record, that "the
contract" referred to by Santana was the Teamster-
Transcaribbean contract which was discussed with the
night-shift employees by Chavez and Virella. There is no
other contract shown by the record to which the state-
ment might refer. In addition , it appears that in both
November and January, Interstate arranged to have the
Teamsters give the same message to the night -shift em-
ployees, who were most militant in favor of the Machin-
ists, that Interstate was giving the employees on the
morning shift.
D. Conclusions in Case 24-CA-2288 (1-5)
On the basis of the evidence set forth , and on the
record as a whole, a preponderance of the evidence
clearly establishes and it is found that Respondent In-
terstate discharged the Charging Parties herein because
of their activities on behalf of and affiliation with the
Machinists , in violation of Section 8(a)(1) and (3) of the
Act.7
Respondent Interstate further interfered with,
restrained , and coerced employees in the exercise of their
rights under the Act and thus violated Section 8(a)(1) of
the Act by the following:
1. Supervisor Nieves' statement to employee Quin-
ones that he should be careful about engaging in activities
on behalf of the Machinists , since employees so involved
would be discharged.
F The reference was to clauses in the Teamster-Transcaribbean con-
tract which expired, so far as the record shows, on December 31, 1966
(counsel for Teamsters stated that he would present proof that the agree-
ment was in force in January 1967, when the meeting occurred , but did not
do so), in pertinent part as follows
Section I The Company agrees to refrain from using the services
of any person who does not observe the wages , hours and conditions
of employment established by labor unions having jurisdiction over
the type of service performed, which would be to the detriment of
present employees
Section 2 For the purpose of preserving work and job opportuni-
ties for the employees covered by this Agreement, the Company
agrees that no work or services presently performed or hereafter as-
signed to the collective bargaining unit will be subcontracted in
whole or part to any other non unit employees unless otherwise
139
2. Santana ' s conduct in requesting employee Martinez
to find out the names of employees engaged in activities
on behalf of the Machinists and the subsequent interroga-
tion of Martinez with respect to this matter , which con-
stitutes an unlawful attempt to have an employee engage
in surveillance of fellow employees ' protected activity,
and coercive interrogation of the employee concerning
such activities.
3. Supervisor Marrero's statement to Negron that the
five Charging Parties had been discharged because of
their activities on behalf of the Machinists , made under
circumstances which Marrero reasonably should have an-
ticipated would result in the statement being commu-
nicated to , and restraining and coercing , Interstate's em-
ployees in their protected activities.
4 President Santana ' s conduct in instructing em-
ployees to withhold information and not cooperate with
agents of the Board in their investigation of the charges
herein . See Grand-Central Chrysler, Inc., 155 NLRB
185
5. President Santana's conduct in threatening em-
ployees with loss of employment if they designated the
Machinists as their collective -bargaining representative.
It is recommended that allegations in the complaint that
Supervisor Nieves interrogated employees as to Machin-
ists activity and that Nieves stated that the Charging
Parties had been discharged for their activities on behalf
of the Machinists be dismissed for lack of proof. It is
likewise recommended that the allegation in the com-
plaint that Supervisor Marrero's conduct in telling the
employees on the night shift that five employees were to
be discharged thereafter be dismissed. The remarks at the
time given were ambiguous. It is not at all clear that the
employees understood the coercive context of the re-
mark ; one employee testified that they did not take Mar-
rero seriously . In any event a finding on this point would
only be cumulative in light of the findings already made.
E. Conclusions in Case 24-CB-593 (1-5)
The General Counsel contends that Respondent Team-
sters, as the collective -bargaining agent of the employees
involved, had an obligation under the Act to aid the
Charging Parties in filing grievances concerning their
discharges and to fairly, and in good faith , represent them
in their meritorious grievances against Respondent In-
terstate It is asserted that by failing or refusing to carry
out such obligation, Respondent Teamsters violated Sec-
tion 8(b)(1)(A) of the Act.
It must first be recalled that the discharged employees
here involved made no determined efforts to have their
grievances processed by the Teamsters, but turned to the
Board to vindicate their rights . In essence , the contention
provided in this Agreement This shall not restrict the Company from
continuing to have work services performed either by present con-
tractors or by others at any time or place , in accordance with
established practice
Respondents contended at the hearing that illegal motivation on the
part of Interstate in these discharges was disproved by the fact that other
employees who were active on behalf of the Machinists were not
discharged However, as the court stated in N L R B v Challenge-Cook
Brothers , 374 F 2d 147 (C A 6), "The mere fact that all union members
or supporters are not discharged does not disprove the fact that an em-
ployee 's discharge is based upon an unlawful discriminatory motive "
This is particularly true in this case where plain admissions of illegal mo-
tive, testified to by General Counsel's witnesses , stand undemed on the
record
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is that the Teamsters violated the Act because it did not
affirmatively , on its own motion , thereafter seek to
process the grievances , notwithstanding the processing of
the charges by the Board . There is, on the facts
presented , a substantial doubt that the employees acted
with sufficient persistence to raise an obligation on the
part of the Teamsters to take such affirmative action, but,
in any event , I would not find , in the circumstances of this
case , that the Teamsters inaction constituted a violation
of the Act.
There is a certain theoretical logic in the General
Counsel 's contention that the Teamsters owe a high stan-
dard of representation to the employees whom it
represents , even to those employees who may object to
that representation . Cf. Vaca v. Sipes, 386 U. S. 171. But
more than theoretical logic is required in the regulation of
labor relations , which is, intensely , an exercise in the ad-
justment of human relationships . The problem of the role
of a bargaining representative in the grievance process,
where the interests of the representative and the grievant
diverge , is not new and continues to raise difficulties.
Compare the situation presented in Star Expansion In-
dustries Corporation , 164 NLRB 563, and particu-
larly the discussion under "Findings and Conclusions as
to all Matters in Issue" of the Trial Examiner ' s Decision.
But the problem of requiring such a representative to
fairly represent persons who are trying to destroy it is an
exercise in futility. While ideally this may be an obligation
of the bargaining agent , practically , such a representative
is so poorly equipped for the task that I cannot find that
it violates the law by failing to attempt the task , nor do I
consider it appropriate to order such an agent to make the
attempt in the future . Obviously the Board 's processes
are the proper forum to vindicate such rights and the
Charging Parties speedily and rightly repaired to those
procedures.
This does not mean , however, that the bargaining agent
may restrain or coerce the employees in their proper at-
tempts to replace it as a representative of the bargaining
unit . And that is what the Teamsters did in this case.
Chavez and Virella clearly sought to coerce the em-
ployees in their efforts to assist the Machinists, by telling
the employees- in terms clearly to be graspede -that if
they selected the Machinists as their representative in the
forthcoming election , the Teamsters , through their agree-
ment with Transcaribbean would deprive them of work
and employment.
Nor were these statements to the employees justified
on the basis of the no-subcontracting clauses in the
Transcaribbean agreement . Not only is there no evidence
in the record that this agreement was in effect when the
remarks were made , but there is no proof that the work
involved was work reserved to the employees in the bar-
gaining unit at Transcaribbean . The terms of that contract
and the fact that the work had been subcontracted to In-
terstate is convincing evidence that the work was not
reserved for Transcaribbean employees . The terms of the
agreement and the circumstances of the threat show that
the threatened removal of the work from Interstate would
not be on the basis of preserving the work of Transcarib-
bean employees , but rather for purpose of preventing
8 In making this finding , it has been kept in mind that one employee wit-
ness testified that he did not consider Chavez' statement a "threat " No
attempt was made to determine the witness ' concept of "threat," but it is
clear to me not only that the natural tendency of the remarks of Chavez
Transcaribbean from doing business with Interstate if its
employees were not represented by the Teamsters. Such
action on the part of the Teamsters would violate Section
8(b)(4)(A) and 8(e) of the Act. Cf. International Associa-
tion of Heat and Frost Insulators and Asbestos Workers
Local Union No. 8, AFL-CIO (Preformed Metal
Products Co., Inc.), 163 NLRB 557; Retail Clerks In-
ternational Association, Local Union No. 1288,
AFL-CIO (Nickel's Pay-Less Stores), 163 NLRB 817.
Lastly, the instruction of Virella to the employees not
to cooperate with agents of the Board in its investigation
of the charges in this matter not only violated the Act by
seeking unlawfully to impede the right of the employees
in their free access to the remedial processes of the
Board, but by the obvious pattern of cooperation with
Respondent Interstate in its efforts to defeat the em-
ployees' exercise of their rights under the Act, the Team-
sters thereby also violated their duty and obligation under
the Act to fairly and in good faith represent the em-
ployees. While it may not be realistic to require that the
Teamsters use its contract with Interstate affirmatively
to seek the reinstatement and reimbursement of the
discharged employees, the Teamsters cannot be per-
mitted to use its representative status as a means to
coerce and restrain the employees it represents in the ex-
ercise of their rights under the Act.
For the reasons stated, and upon the entire record, it is
found that by the conduct of Chavez and Virella in in-
structing the employees not to cooperate with agents of
the Board in its investigation of the charges in this matter,
and by threatening the employees with loss of work and
employment if they selected the Machinists as their bar-
gaining representative, the Teamsters restrained and
coerced employees in the exercise of rights under the
Act, and thus violated Section 8(b)(I)(A) of the Act. It is
further recommended that the allegation that the Team-
sters violated the Act by failing or refusing to process
grievances of the discharged employees under the In-
terstate agreement be dismissed.
F. The Due Process Issue
Respondent Teamsters contends that it was deprived
of due process by my ruling in limiting its cross-examina-
tion of witness Echaverria. It is further stated that my rul-
ing prompted it to withdraw from the hearing "convinced
that if it were not allowed to cross examine this witness of
(sic) material issues to its case , it was futile to remain in
the hearing room."
Briefly the circumstances were : Upon objection by
General Counsel, Respondent Teamsters was prevented,
on recross -examination , from questioning the witness
concerning other employees who had signed cards for the
Machinists , on the basis that this matter exceeded the
scope of General Counsel's redirect examination of the
witness . Counsel for the Teamsters had previously been
directed by me to limit his interrogation on recross-ex-
amination to the issue raised by the redirect examination.
It was asserted by Teamsters' counsel that the purpose
of his proposed questioning was to test the credibility of
the witness and to show that a number of employees not
and Virella on this occasion was to restrain and coerce the employees in
the exercise of their rights under the Act, but that this was the intent of the
speakers, and it is so found.
TEAMSTERS, LOCAL 901
discharged had signed cards for the Machinists. I ruled
that examination of this witness at that point in the record
was not appropriate for those purposes.
In particular, with respect to the second stated pur-
pose, the record at this point showed that at least 15 em-
ployees had signed cards for the Machinists, and counsel
for the Teamsters refused a stipulation of General Coun-
sel that admitted that most of these were still employed
by Interstate.9 At the time, I advised counsel that his rul-
ing as to this witness did not preclude proper, unobjec-
tionable questions on the issue asked in a relevant context
and at a proper place of witnesses competent to testify
about these matters. After Respondents withdrew, a wit-
ness did testify, as noted above, that 20 signed cards were
turned in to the Machinists. Although the employees
were told that others were "in line" to be discharged,
there is no evidence that employees other than the five
here involved were discharged for their activities on be-
half of the Machinists.
Upon the facts above stated, and the record as a whole,
I find that Respondents were not deprived of due process
as alleged.
CONCLUSIONS OF LAW
1. Respondent Interstate is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. Respondent Teamsters and the Machinists are
labor organizations within the meaning of Section 2(5) of
the Act.
3. Respondent Interstate has engaged in and is engag-
ing in unfair labor practices in violation of Section 8(a)(1)
and (3) of the Act.
4. Respondent Teamsters has engaged in and is engag-
ing in unfair labor practices in violation of Section
8(b)(1)(A) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the, Act.
THE REMEDY
Having found that Respondent Interstate and Re-
spondent Teamsters have each engaged in certain unfair
labor practices, it will be recommended that each Re-
spondent cease and desist from the unfair labor practices
found, and take certain affirmative action designed to
effectuate the policies of the Act.
It will be recommended that Respondent Interstate
offer Jose Ramos, Ernesto Lopez, Julio Figueroa, Ismael
Perez Quiles, and Mario Hernandez Ortiz immediate and
full reinstatement to their former or substantially
I In the course of his argument on the point , Teamsters counsel stated.
"I think we had most of it on direct He did say there were others and a
great many others and I wanted to pin that down, that's all The fact that
it came in late, I couldn't pin it down for your cutting it off "
During discussion of the point by Teamsters counsel, counsel for
Respondent Interstate did not join in the position of the Teamsters and
specifically agreed on the record that he was "satisfied with the record and
without the stipulation" offered by General Counsel After withdrawal of
Respondent Teamsters , Respondent Interstate sought a recess, which
was granted Upon returning after the recess, counsel for Respondent In-
terstate requested permission to further examine the witness on the same
point. When I affirmed his previous ruling and refused Interstate's counsel
permission to examine in a manner which had been denied to the Team-
141
equivalent positions, without prejudice to their seniority
and other rights and privileges, and make them whole for
any loss of earnings they may have suffered by reason of
the discrimination against them, by payment to them of a
sum of money equal to that which they would have
earned as wages from the date of the discrimination
against them to the date of the offer of reinstatement, and
in such a manner consistent with Board policy set forth in
F. W. Woolworth Company, 90 NLRB 289. Interest on
backpay shall be computed in the manner set forth in Isis
Plumbing & Heating Co., 138 NLRB 716.
It will also be recommended that Respondent In-
terstate preserve and, upon request, make available to the
Board payroll and other records to facilitate investigation
of reinstatement and the computation of backpay.
It will be recommended, because of the aggravated na-
ture of the threat of Respondent Teamsters to deprive the
employees of Interstate of work which they are ac-
customed to do with respect to Transcaribbean opera-
tions, which was affirmed by Chavez on the record at the
hearing,10 that Respondent Teamsters be ordered to
cease and desist from threatening employees with loss of
work they have been accustomed to do or taking any ac-
tion to deprive them of such work because such em-
ployees are represented by a labor organization other
than the Teamsters, or because such employees exercise
rights guaranteed to them under the Act.
As the unfair labor practices committed by the Re-
spondents were of the character which go to the very
heart of the Act, it will be recommended that each of the
Respondents cease and desist from infringing in any
manner upon the rights of employees guaranteed by
Section 7 of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclu-
sions of law, and upon the entire record in this case it is
recommended that-
A. Respondent Interstate Air Service Corp., Isla
Verde, Puerto Rico, its officers , agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discharging , or otherwise discriminating against,
employees in order to discourage membership in or sup-
port of International Association of Machinists and
Aerospace Workers, AFL-CIO, or any labor organi-
zation.
(b) Threatening employees with discharge or other
reprisals if they become or remain union members or give
assistance or support to a union.
(c) Interrogating employees concerning union mem-
sters-but which would have been re-recross examination in his
case -Respondent Interstate withdrew
10 The record shows the following
WITNESS Lady, please tell the gentlemen That we went to the
meeting between 6 00 and 6 30, and Mr Frank Chavez spoke to us
He asked us if we knew that there were going to be some elections
He told us that if the election was won by the iAM we would disap-
pear from our work
MR CHAVEZ And they will
MR CHAITOVITZ I want that on the record
MR CHAVEZ Let it be on the record-we have a subcontracting
clause
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bership or union activities in a manner violative of Sec-
tion 8 (a)(1) of the Act.
(d) Inducing, instructing , or encouraging employees to
ascertain or report on the union activities, membership,
or union adherence of other employees.
(e) Obstructing the processes of the Board by instruct-
ing or advising employees not to cooperate with agents of
the Board , or to withhold information from the Board, or
to give false information to the Board.
(f) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed by the Act.
2. Take the following affirmative action which it is
found will effectuate the purposes of the Act.
(a) Offer Jose Ramos, Ernesto Lopez, Julio Figueroa,
Ismael Perez Quiles, and Mario Hernandez Ortiz im-
mediate and full reinstatement to their former or substan-
tially equivalent positions , without prejudice to their
seniority or other rights and privileges , and make them
whole for any loss of earnings they may have suffered by
reason of Respondent Interstate ' s discrimination against
them , as set forth in that section of the Trial Examiner's
Decision entitled "The Remedy."
(b) Notify above -named employees if presently serv-
ing in the Armed Forces of the United States of their right
to full reinstatement upon application in accordance with
the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
(c) Preserve and, upon request , make available to the
Board or its agents, for examination and copying, all
payroll records , social security payment records,
timecards , personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(d) Post at its operations at Isla Verde International
Airport , Isla Verde , Puerto Rico, copies of the attached
notice marked "Appendix A,"" which shall be translated
into Spanish by the Regional Office of the Board . Copies
of said notice , to be furnished by the Regional Director
for Region 24, after being duly signed by Respondent's
representative , shall 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 employees are customarily
posted . Reasonable steps shall be taken by Respondent
to insure that said notices are not altered , defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 24, in
writing, within 20 days from the receipt of this Decision,
what steps Respondent Interstate has taken to comply
herewith. 12
B. Respondent Teamsters , Chauffeurs,
Warehousemen and Helpers , Local 901, International
Brotherhood of Teamsters , Chauffeurs, Warehousemen
and Helpers of America , Santurce, Puerto Rico, its of-
ficers, agents, and representatives, shall
1. Cease and desist from:
(a) Restraining or coercing employees of Interstate
Air Service Corp., Isla Verde , Puerto Rico, by threaten-
ing them with, or causing such employees , loss of work or
employment , or other detriment , if they aid or support In-
ternational Association of Machinists and Aerospace
Workers, AFL-CIO, or any other labor organization.
(b) Obstructing the processes of the National Labor
Relations Board by instructing , advising, or threatening
employees not to cooperate with agents of the Board, or
to withhold information from the Board.
(c) In any other manner restraining or coercing em-
ployees in the exercise of their rights guaranteed by the
Act.
2. Take the following affirmative action which it is
found will effectuate the purposes of the Act:
(a) Post in conspicious places at its offices in Santurce,
Puerto Rico, and in all places where notices to its mem-
bers are customarily posted, copies of the attached notice
marked "Appendix B," [Board's Appendix B substituted
for Trial Examiner's Appendix B.] which shall be trans-
lated into Spanish by the Regional Office of the Board.13
Copies of such notice to be furnished by the Regional
Director for Region 24, after being duly signed by the
Respondent's representative, shall be posted immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter Reasonable steps shall be taken
by the Respondent Teamsters to insure that such notice
is not altered, defaced, or covered by any other material
(b) Mail to the Regional Director for Region 24, such
reasonable number of signed copies of the notice marked
"Appendix B" as the Regional Director may designate,
for the purpose of posting on bulletin boards of Interstate
Air Service Corp., Isla Verde, Puerto Rico, the company
willing, for a period of 60 days, or to be otherwise
reasonably brought to the attention of the employees of
Interstate Air Service Corp.
(c) Notify the Regional Director for Region 24, in
writing, within 20 days from the receipt of this Decision,
what steps Respondent Teamsters has taken to comply
herewith. 14
" In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
12 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director,
in writing, within 10 days from the date of this Order, what steps Re-
spondent has taken to comply herewith
13 See in 1 I , supra
14 See in 12, supra
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL NOT discharge or otherwise discriminate
against employees in order to discourage member-
ship in or support of International Association of
Machinists and Aerospace Workers, AFL-CIO, or
any other labor organization.
WE WILL NOT threaten employees with discharge
or other reprisals if they become or remain members
of a union of their choice or give assistance or sup-
port to such a union.
WE WILL NOT interrogate employees concerning
TEAMSTERS , LOCAL 901
union membership or union activities in a manner
violative of Section 8(a)(1) of the Act.
WE WILL NOT induce , instruct , or encourage em-
ployees to find out or report upon the union activi-
ties , membership , or union adherence of other em-
ployees.
WE WILL NOT obstruct the processes of the Board
by instructing or advising employees not to
cooperate with agents of the Board , or to withhold in-
formation from the Board , or to give false informa-
tion to the Board.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
rights guaranteed by the Act.
WE WILL offer to Jose Ramos , Ernesto Lopez,
Julio Figueroa , Ismael Perez Quiles , and Mario Her-
nandez Ortiz immediate and full reinstatement to
their former or substantially equivalent positions
without loss of seniority or other rights and
privileges , and WE WILL make them whole for any
pay they lost because of the discrimination against
them , with interest.
All our employees are free to become , remain, or
refrain from becoming or remaining , members of Interna-
tional Association of Machinists and Aerospace Work-
143
ers, AFL-CIO, or any other labor organization , except
as may be required by a lawful contract with the em-
ployees ' bargaining representative.
INTERSTATE
AIR SERVICE CORP.
(Employer)
Dated By
(Representative ) (Title)
Note : We will notify the above -named employees if
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon application
in accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced , or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board ' s Regional Office, 7th Floor, El
Hato Rey Building , 255 Ponce de Leon Avenue, Hato
Rey, Puerto Rico 00919 , Telephone 765-1125.