The Shell Co., Ltd.

National Labor Relations Board - Board Decisions

Jul 19, 1968

172 N.L.R.B. 1227 (N.L.R.B. 1968)

THE SHELL COMPANY 1227
The Shell Company (Puerto Rico ) Limited and In-
ternational Association of Machinists and
Aerospace Workers, AFL-CIO. Case
24-CA-2409
July 19, 1968
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND JENKINS
The Shell Company ( Puerto Rico ) Limited
(Respondent ) in various ways violative of Section
8(a)(1) of the Act' interfered with the rights of its
employees at the International Airport at Isla
Verde, Puerto Rico, during an organizing campaign
conducted by International Association of Machin-
ists and Aerospace Workers, AFL-CIO (the
Union), and discriminatorily discharged two em-
ployees' because of their union activities.
Upon the entire record , including observation of
the witnesses , and after consideration of the brief
filed by Respondent , the Trial Examiner makes the
following:
On April 19, 1968, Trial Examiner Josephine H.
Klein issued her Decision in this proceeding, find-
ing that Respondent had engaged 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. Thereafter, Respondent filed exceptions
to the Trial Examiner's Decision and a supporting
brief.
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 brief,
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
orders that Respondent, The Shell Company (Puer-
to Rico) Limited, its officers, agents, successors,
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOSEPHINE H. KLEIN, Trial Examiner : This case
was heard at Hato Rey, Puerto Rico, on January 22
through 25 , 1968, on a complaint issued on
November 28, 1967, pursuant to a charge filed on
August 25, and amended September 6 and
November 28, 1967. The complaint alleges that
FINDINGS OF FACT
I. JURISDICTIONAL FINDINGS
The complaint alleges, Respondent admits, and
the Trial Examiner finds that:
A. Respondent, a corporation, is engaged in the
sale and distribution of gasoline and other petrole-
um products in Puerto Rico. During the calendar
year 1967 Respondent purchased gasoline and
other petroleum products valued in excess of
$50,000 from places outside Puerto Rico or from
persons or firms located in Puerto Rico that had
processed or produced such products from crude
oil shipped to Puerto Rico from places outside
Puerto Rico. During the same period Respondent
sold gasoline and other petroleum products valued
in excess of $50,000 to persons directly engaged in
interstate or foreign commerce or to persons, firms,
or businesses located in Puerto Rico whose opera-
tions affect interstate or foreign commerce.
Respondent is and at all material times has been an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
B. The Union is and at all material times has
been a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Chronology
In 1964 Respondent entered into a 3-year
renewal collective-bargaining agreement with the
Seafarers International Union (SIU). However, in
July 1966 Respondent rescinded that agreement
National Labor Relations Act, 29 U S C Secs 151, et seq
The Union's original charge alleged two discriminatory discharges (Ru-
hio and Garcia) The first amended charge added a third (Herrera) The
second amended charge, however, reverted to the original two The com-
plaint appears to allege only discriminatory discharges of Rubio and Gar-
cia Respondent's answer, on the other hand, affirmatively pleads that each
of the three employees was discharged for cause At the hearing, both the
General Counsel and Respondent presented evidence concerning Her-
rera's discharge, but it does not appear that this evidence was directed
toward an alleged violation of Sec 8(a)(3) Accordingly, the Examiner will
make no finding or conclusion as to whether Herrera's discharge was viola-
uveofSec 8(a)(3)
172 NLRB No. 128
1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because SIU had gone on strike in violation of a no-
strike clause While the SIU strike was in progress
Respondent hired 13 employees, including the al-
leged discriminatees and most of the present em-
ployees, to refuel planes at the International Air-
port at Isla Verde, Puerto Rico. These employees
were divided into three crews of three employees
each, with four employees filling in and doing
miscellaneous work. Eastern Airlines, Respondent's
largest customer, was then closed down by a strike.
When Eastern Airlines resumed operations,
Respondent's employees experienced difficulty in
performing their functions with crews of three Ac-
cordingly, the work was reorganized, with three
crews of four employees each and one employee to
fill in on vacations.
Sometime toward the end of 1966 it was rumored
that the SIU was going to win its case then pending
before the Board and that, as a result, Respondent's
former employees would be ordered reinstated, and
the present employees, who were still considered
temporary, would accordingly be discharged.
Several of the employees discussed among them-
selves this precarious situation and some com-
plaints about working conditions (which are
discussed below). They decided to get in touch with
a union. Pelayo A. Garcia Suarez (Garcia) con-
sulted an Eastern Airlines mechanic whom he knew
and was given the name of Juan L. Maldonado,
representative of the Union, which represents East-
ern's employees. Garcia and Ricardo Rubio
Sacarello (Rubio) visited Maldonado's home and
from there on the organizing campaign proceeded
On January 23, 1967,3 the Union filed with the
Board a petition for certification as bargaining
representative of Respondent's airport employees
On April 27 the Regional Director issued a Deci-
sion and Direction of Election, in which he held
that the appropriate unit included, in addition to
the service and maintenance employees at the air-
port, the P and M employees at Respondent's
Catano and Guayanilla plants and its offices in San
Juan and Ponce. The total number of employees in
the appropriate unit so determined was approxi-
mately 27.
An election held on May 31 was lost by the
Union by one vote. After the Union filed objections
to the conduct of the election, Respondent agreed
to a second election and, with the consent of the
Regional Director, the Union withdrew its objec-
tions, the election was set aside, and a second elec-
tion directed. The Union won the second election,
held on August 16. On October 18 the Regional
Director overruled Respondent's objections to the
conduct of the election and certified the Union.
The Board thereafter denied Respondent's request
for review.
' Unless otherwise stated. all dates herein are in 1967
' Rubio testified in part
The expression that anyone talking about the union he would tell
Sevilla so he could discharge him immediately-do you think 1 would
be so foolish as to say yes to Mr Sevilla when he asked me'
B. Alleged Violations of Section 8(a)(1)
1. Background
In 1966, when the union campaign began, a Mr.
de Sevilla was Respondent's plant superintendent at
the airport.
The complaint does not allege unfair labor prac-
tices by de Sevilla, and it appears that most, if not
all, of his relevant conduct occurred more than 6
months before the charge was filed. However,
evidence of his conduct will be briefly reviewed as
background to the matters alleged in the complaint.
De Sevilla was not called as a witness and none of
the testimony concerning him was contradicted or
denied.
Rubio testified that shortly after the representa-
tion petition was filed, de Sevilla told Rubio about
it, in the presence of Garcia and Rafael Berrios
Cuadrado (Berrios), another member of Rubio's
crew. When Rubio disclaimed any knowledge of
the petition de Sevilla asked him to "find out who
are the people who signed so I can talk to them and
see if I can get them what they want without the
need of bringing a union to the plant." According
to Garcia, de Sevilla said the Company could "give
them more than any union." Rubio said he would
see what he could find out. About a week later, de
Sevilla told Rubio and Garcia that he could not un-
derstand why they wanted to bring in a union when
they both planned to leave Respondent's employ.
Both Garcia and Rubio again disclaimed any
knowledge of the matter. In explanation of their un-
truthful disavowal of any involvement in the in-
cipient union campaign, Rubio and Garcia referred
to the fact that employee Martinez, apparently the
only avowedly antiunion employee at the airport,
had threatened to report to de Sevilla any union
talk he heard, so that the union sympathizers could
be immediately discharged.' Martinez, who testified
at the hearing, did not deny this testimony. There is
no question, however, that Rubio's and Garcia's ac-
tivities did not remain secret very long. They ap-
peared with Union Agent Juan L. Maldonado at the
representation hearing on March 30.
2. Benefits promised, granted, and withheld
Among the conditions to which the employees
objected when they first consulted the Union were
the facts that: (1) overtime payments were made
only at 45-day intervals; (2) the employees'
uniforms consisted of overalls, which were objec-
tionable to most of them, particularly those who ate
at the airport restaurant; and (3) the employees
were required to perform their own janitorial ser-
Q Martinez had made that statement and Sevilla had known about
10
A The statement made by Sevilla was that the company had gotten
rid of a union and that they thought they could work without a union
THE SHELL COMPANY 1229
vice in their restroom and dining room.' Com-
plaints as to these matters were frequently re-
gistered to de Sevilla.
On April 1, following about a week spent learn-
ing the airport operation , William Izquierdo
replaced de Sevilla . From the beginning of his
tenure, Izquierdo had frequent informal meetings
with the employees , individually and in groups. Ac-
cording to credited testimony of several employees,
Izquierdo asked the employees to give him one year
free of a union to see what improvements he could
achieve in their working conditions . According to
Izquierdo , he asked the employees "for some sug-
gestions of anything they might be interested in im-
proving." The "suggestions " thus elicited included
the complaints listed above, which had previously
been made to de Sevilla. Within a short time, and
before the election of May 3 1 , the employees were
given new uniforms , consisting of trousers and
shirts and new shoes ; janitorial service was pro-
vided for the restroom and dining room ; and over-
time was being paid on a biweekly rather than a 45-
day basis. Additionally, Izquierdo told the em-
ployees that he would see that a coffeemaker was
provided, and it subsequently was, apparently
between the two elections . He also stated that the
restroom and dining room would be improved and
a refrigerator would be provided. The employees'
area was later completely reconstructed and a
refrigerator was installed.'
Operations Manager H. F. Rainey testified that
for a couple of years Respondent had had plans for
bettering its airport facility, principally to provide
adequate office space for the plant superintendent.
The original plan envisioned a two-story structure,
but, when that proved too expensive , Respondent
"devised a plan of just extending an office off of the
end of the present building ." Execution of that plan
"left the existing Ready Room or lunchroom on the
street side of the building , where the men when
they were by themselves did not have observation
of the activities within the yard." Accordingly, a
partition was rotated 90 degrees , providing an of-
fice with a window onto the lunchroom and a door
onto the main yard . Rainey testified that although
this resulted in bettering the employees ' facilities,
"it was done for observation ." However , in a cam-
paign letter addressed to all employees on August
15, Respondent 's director-manager , Noel Totti, Jr.,
said:'
WE HAVE KEPT PROMISES AND WILL
CONTINUE KEEPING THEM
The promises we have made you and kept
have been several. For example , we have kept
the following.
1. We changed your uniforms for better
ones.
2. The overtime worked is paid biweekly.
3. The Airport employees don't have to
clean the Plant any longer.
4. At the Airport we built a new dining
room for more comfort.
At a meeting held the week before the May 31
election , both Izquierdo and Rainey addressed the
employees . Izquierdo reminded the employees of
the benefits already received or promised , such as
the crew uniforms , the coffeemaker and the
prompter payment of overtime , and assured them
that things would continue to improve . According
to Rubio, Izquierdo indicated that his replacing de
Sevilla as plant manager was itself a benefit con-
ferred . Rubio 's testimony was.
Mr. Izquierdo said , " You know , boys, that
things have improved here-I will get you new
uniforms , I got a coffee pot-you know I am
not a boss that is on your back all the time-
things are improving and will be improving
more and more because I am not like Mr.
Sevilla, who was a non-educated person, but I
am an engineer and Sevilla treated you one
way and I will treat you another way-give me
a chance and when the election comes you
think what you are going to do in that election
and vote according to your conscience."
According to Rubio, Rainey then said:
.. that he did not see the need of a union,
that the union all it wanted was to stick their
hands into our pockets for the money for the
dues-he said that Shell could not raise the
salaries because there was the problem of the
election , but that Esso and Texaco were having
a bargaining agreement and that whatever Tex-
aco and Esso gave . Shell would also give us
or maybe better-he told us to give him a
chance, that things had been improved-"Give
me a chance and I am going to give you a
square deal."
Employee Carlos M. Cordova gave substantially the
same version of Rainey's speech . Rainey denied
having referred to the Esso and Texaco negotia-
tions. The notes from which he spoke at that meet-
ing do not specifically refer to the Esso and Texaco
negotiations , but they do say:
... The wage increase they [the Union]
promise you is based on Airline vs. Airline
Competition-we compete with other oil com-
panies not with airlines Our costs, product
quality must be competitive with Texaco and
Esso not Pan Am and Eastern.
' The "dining room " does not serve food but is , rather , a room for the
employees ' use on off-duty time H F Rainey. operations manager,
referred to it as the "ready room "
' There was some evidence that a stove was also promised but it does not
appear that any was provided
This letter was attached as an exhibit to the Regional Director 's Second
Supplemental Decision and Certification of Representative in Case
24-RC-3067, which was introduced into evidence in the present case
1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In a letter distributed to the employees on August
14, the Union said inter alia:
At all the plants [Respondent] gathered you all
together and told you that they would give you
the same or better benefits than those obtained
by the ESSO employees in their negotiations.
ESSO signed the collective-bargaining agree-
ment already. Where is that wage increase that
was offered? ...
In response, the Company sent a letter to all em-
ployees. It did not disavow the promise ascribed to
it, but said:
We can assure you that you will always get
fair and reasonable treatment, with or without
a Union. That includes paying the highest sala-
ries and benefits in our industry in Puerto
Rico. We have been unable to adjust your sa-
lary, as we would have liked, because the hold-
ing of the new election is pending . The Union
is the only one guilty of this delay, inasmuch as
it impugned the past election after having lost
it .... 8
Respondent also introduced into evidence a copy
of a letter dated August 28, about 2 weeks after the
second election, addressed to Rubio9 and announc-
ing a wage increase retroactive to August 1. The
letter referred to the representation proceeding and
continued:
For this reason, we were unable to grant the
salary raises that normally we would have
given at this time of the year. Frankly, we were
afraid that such raises could be interpreted as
an attempt on our side to influence you undu-
ly.
However, since this matter is still pending
resolution, we do not think it is just nor
reasonable to postpone the salary raises any
longer. Even the Union, in a recent circular
letter, has accused us of not giving the raise,
which, we repeat, was due solely to the above-
mentioned cause.
On all the evidence, the Examiner finds that be-
fore both the first and second elections Respondent
promised and conferred benefits in a manner calcu-
lated to or naturally tending to influence the em-
ployees' votes.
There was no evidence that any of the promises
or conferrals of benefits were conditioned upon the
outcome of the election. Additionally, all the em-
ployees questioned readily conceded that no threats
had been made. While company representatives
frequently said that they preferred to work without
a union, they also consistently said that the em-
" Both letters here quoted came into the present record as attachments to
the Regional Director's Second Supplemental Decision and Certification of
Representative , which overruled Respondent 's objections to the second
election in Case 24-RC-3067
" Rubio , who had been discharged on August 17, denied having received
the original of this letter However , it appears from the testimony of Per-
sonnel Director Graciani that an identical letter was sent to all employees
as of August 28
ployees were free to vote as they desired and
should vote according to their consciences.
The Examiner thus finds that the General Coun-
sel has failed to establish the allegations of the com-
plaint to the effect that benefits were promised only
on condition that the employees did not have a
union representing them. However, proof of such
allegation is not essential to establish violation of
Section 8(a)(1) by the promise or conferral of
benefits. See N.L.R.B. v. Exchange Parts Co., 375
U.S. 405, 409-410:
The danger inherent in well-timed increases in
benefits is the suggestion of a fist inside the
velvet glove. Employees are not likely to miss
the inference that the source of benefits now
conferred is also the source from which future
benefits must flow and which may dry up if it is
not obliged. The danger may be diminished if,
as in this case, the benefits are conferred per-
manently and unconditionally. But the absence
of conditions or threats pertaining to the par-
ticular benefits conferred would be of con-
trolling significance only if it could be
presumed that no question of additional
benefits or renegotiation of existing benefits
would arise in the future; and, of course, no
such presumption is tenable.
Board decisions appear to apply the Exchange
Parts principle so as to proscribe as interference,
the promise or conferral of any benefits calculated
to or naturally tending to persuade employees that
a union is unnecessary or will not achieve anything.
For example, in Casey Manufacturing Co., 167
NLRB 89, the Board held that an employer violated
Section 8(a)(1) by stating during an election cam-
paign at one of its plants that it "had to main-
tain the same working conditions in all [its] plants
because of their close proximity." A majority of
the Board panel held that the quoted statement
"was an announcement that the . . . employees
would receive all the benefits of a union contract
without a union, and was, therefore, by clear
implication, a promise of benefits made for
the purpose of coercing the employees into reject-
ing the Union and in violation of Section 8(a)(1) of
the Act."
Having promised its employees any wage in-
crease bargained by Esso and/or Texaco, Respon-
dent compounded its misconduct by withholding
the grant thereof and advising the employees that it
was the Union's conduct in prosecuting its
representation petition which prevented the in-
crease.10 See American Paper & Supply Co., 159
NLRB 1243, holding that an employer violated
"' While the complaint does not so allege, and the Examiner thus does
not so find , it is possible that , having withheld the promised wage increase
pending the August 16 election , Respondent further violated the Act when
it granted the wage increase after the election, and while it was hoping,
through objections, to secure a third election See Texas Electric Coopera-
tives , 160 NLRB 440, 461, citing Ambox, Inc, 146 NLRB 1520, 1521,
enfd as modified 357 F 2d 138 (C A 5)
THE SHELL COMPANY 1231
Section 8( a)(1) in announcing that because of an
organizing campaign the employees would not
receive a contemplated wage increase similar to
one given by the employer's competitor under a
union contract. The Board said (at 1244):
The natural effect of the announcement was
to convince the employees that they did not
need a union in order to obtain wage increases
or other improvements in their conditions of
employment. Moreover, by shifting to the
Union the onus for its not instituting the pur-
ported planned wage increase, the Respondent
sought to disparage and undermine the Union
by carrying the impression that the Union
stood in the way of the employees gettting a
wage increase. Thus, Respondent held out to
the employees a benefit they would be receiv-
ing but for the Union. By the foregoing con-
duct, we find that the Respondent interfered
with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section
7 of the Act, and thereby violated Section
8(a)(1) of the Act.
See also Knox Homes Corp., 159 NLRB 442, 445;
Dan Howard Mfg. Co., 158 NLRB 805, 813, enfd.
in pertinent part 390 F.2d 304 (C.A. 9).
In promising to secure prompter payment of
overtime and then in actually doing so, Respondent
violated Section 8(a)(1). Texas Electric Coopera-
tives, Inc., 160 NLRB 440, 461, citing American
Sanitary Products Co., d/b/a American School Supply
Company, 157 NLRB 473. Similarly, improvement
of the employees' dining and restroom facilities
constitutes a benefit the promise and/or execution
of which to influence the employees' action con-
stitutes interference under Section 8(a)(1). Cf.
Knox Homes Corp., supra at 445-447. On all the
evidence, the Examiner finds that Respondent vio-
lated Section 8(a)(1) by promising and conferring
benefits for the purpose of discouraging employee
support of the Union within the Supreme Court's
ruling in Exchange Parts.
Augustin Herrera Felix (Herrera) had worked for
Respondent in December of 1965 and was let go
when Respondent lost a contract. He was reem-
ployed as a temporary employee on May 7, 1967.
Sometime around the middle of June he was inter-
viewed by Personnel Manager Gilbert Graciani
Perez (Graciani) concerning a possible permanent
position at Respondent's Catano plant. According
to Herrera, Graciani said that he knew Herrera had
worked for Esso, which was unionized, and there-
fore thought that Herrera might be a union sym-
pathizer. Graciani advised Herrera that Respondent
provided employee benefits "the same [as] or
better" than Esso did, but Respondent "had come
to the conclusion that the company worked better
without a union ." Respondent therefore wanted to
know whether Herrera was for a union. When Her-
rera assured Graciani that he (Herrera) would vote
against the Union in an election, Graciani promised
him the Catano job when it became available. Ac-
cording to Graciani, Herrera was hired temporarily
to replace an employee on extended sick leave.
When it became apparent that that employee would
not return, Herrera "was offered the opportunity to
work as . a probationary employee." Graciani
admitted that he discussed the Union with Herrera,
telling him about the forthcoming election. Gra-
ciani testified:
At no time did I tell him that he had to think
like the company thought. I told him that the
union had their reasons to be, that as an in-
stitution we have nothing against them, but
that in our opinion we could work better
without it.
When asked how the subject of the Union came up
in his interview of Herrera, Graciani said:
In these interviews it's customary to explain
to the new employees certain company policies
plus the additional benefits, that he would be
entitled to if he remains as a permanent em-
ployee. In the course of this interview, I told
Mr. Herrera of the existing situation of the
union that was interested in representing our
production and maintenance employees and I
also told him he would be involved in an elec-
tion when he was employed.
Although the testimony of neither Herrera nor Gra-
ciani is entirely clear as to Herrera's employment
history with Respondent, there is no question that
he was employed by Respondent for most of the
month' preceding the election of May 31. Ac-
cordingly, there was no apparent need for Graciani
to inform Herrera of the Union campaign when in-
terviewing him for a permanent position. On all the
evidence, the Examiner credits Herrera's testimony
that he was promised permanent status" only after
he assured Graciani that he would vote against the
Union.12
Luis Rodriguez Santiago (Rodriguez) was hired
on February 3 as a temporary employee, for 6
months, to substitute for an employee who was then
on duty with the National Guard. A few days before
the first election he was called into Izquierdo's of-
fice. Izquierdo told him the advantages of working
without a union. He specifically mentioned the
facts that, through Izquierdo's intervention, em-
ployee Ortiz was not dismissed when he damaged
an airplane and employee Felix had been made a
leadman. Rodriguez then gave assurance that
Izquierdo could count on Rodriguez, whereupon
" Before the position became available at Catano, a permanent job came
up at the airport and Herrera was kept there He was discharged on Sep-
tember 4
" Even Graciam 's version would establish a violation of Sec 8(a)( I )
Even if Graciam did not condition Herrera's securing permanent status
upon his commitment to vote against the Union, the gratuitous reference to
the upcoming election and the Company 's opposition to the Union would
require the inference that the promise of a permanent position sometime in
the future was an implied promise of a benefit to influence Herrera's vote
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Izquierdo gave Rodriguez " a small present ," in the
form of a letter advising him of his permanent em-
ployment , with a raise of $15 per month plus the
right to $15 per diem . Izquierdo did not specifically
testify concerning the Rodriguez situation. Gra-
ciani , however , testified that Rodriguez learned that
the absent employee was not going to return from
the National Guard and thereupon applied to
Izquierdo for the permanent position. Since
Rodriguez had been with Respondent for 3 months,
and had proved he was competent , he was given the
position . Graciani denied that the appointment was
conditioned upon Rodriguez ' antiunion sympathies.
Graciani did not explain why Rodriguez was given a
permanent appointment almost 3 months before his
original appointment was to expire . So far as ap-
pears , he was not to be considered a probationary
employee , although , under similar circumstances,
Herrera had been "offered the opportunity to work
as an employee , a probationary employee ." On all
the evidence , the Examiner finds that Rodriguez'
permanent appointment a few days before the first
election was violative of Section 8(a)(1).
3. Implied threats
In May , employee Francisco Ortiz damaged an
airplane by moving the fueling vehicle before
disconnecting the hose from the plane . He testified
that Plant Manager Izquierdo told him:
... that there was no problem that that was
part of the job and that that could be fixed and
arranged that way because there was no
union-that if there had been a union we
would have to wait for the decision of third
parties.
He testified further that about a week before the
May 31 election Izquierdo visited him at his home
and again said that the accident incident "had been
decided in that way because there was no union-
that otherwise we have had to wait for the decision
of other persons." Izquierdo testified that Ortiz
"was reprimanded" for the plane accident, but
there was no corroboration of this testimony. There
was no suggestion that any reprimand or memoran-
dum was placed in his personnel file although in
another connection it was disclosed that such writ-
ten reports are made . Although Izquierdo denied
testimony that he had said that he had protected
Ortiz and that Ortiz should show his gratitude by
voting against the Union , he was not asked
whether , and thus did not deny that , he had said, in
effect , that with a union the matter could not have
been so simply disposed of. Ortiz ' testimony to this
effect establishes a violation of Section 8(a)(I) in
that it necessarily implied that , had there been a
" There was a suggestion in some of Respondent 's evidence that em-
ployee Irasel Martinez Pabon ( Martinez ), an avowed and staunch op-
ponent to the Union , had been involved in a similar accident No disciplina-
ry action was taken against him
" Employee Santiago Sanchez Ruiz (Sanchez ) testified to having seen
union , disciplinary action would have been taken
which would have necessitated a grievance, ap-
parently through arbitration . The message, there-
fore , was clear that the employees ' choosing to be
represented by a union would result in stricter
disciplinary measures . This result apparently en-
sued . On September 6, employee Herrera was
discharged for negligently damaging a plane. What-
ever evidence there is in the record indicates that
the Herrera and Ortiz incidents were essentially
similar , the only readily apparent difference being
the timing : Ortiz ' accident happened within the
month preceding the first election ; while the date of
Herrera's accident does not appear , his discharge
therefor came about 3 weeks after the second elec-
tion."
Rubio also credibly testified that the day before
the first election Izquierdo told Rubio, in the
presence of his crew , "that once a person got in-
voled with the union he could not progress , that he
would get stuck , that he cannot expect the position
of supervisor or any other position in manage-
ment ." Particularly in view of Respondent 's protes-
tation of a promotion -from-within policy , Izquier-
do's statement constituted a threat of reprisal or
discriminatory action because of union activities.
4. Interrogation
Employee Carlos Mario Cordova testified that
sometime before the first election Izquierdo showed
him a sheet of paper on which were two handwrit-
ten lists of initials, one headed "RRS" (standing for
Rubio ), the other headed "IW" (standing for
Izquierdo ). The lists reflected Izquierdo's appraisal
of the prounion and antiunion sentiments , respec-
tively , of the airport employees . Cordova was on
the prounion list. Izquierdo then asked Cordova his
opinion but Cordova refused to give it . 14 Herrera
testified that about a week before the second elec-
tion he was called into Izquierdo 's office. Herrera's
testimony concerning this event was:
[Izquierdo ) told me that he wanted to talk to
me because the elections were coming up and
he told me exactly these words that I am re-
peating : "The only ones that I have called here
are you , Martinez , Garcia15 and Corps ." ... he
told me , " imagine you know what you are
going to do." And I said , " Yes" and he said,
"Then, can I count on your vote ?" And I said,
"Yes" and he told me that the only ones he
had called were the four of us-the ones I
mentioned before-because those were the
ones that he was sure of.
Employee Rodriguez testified that Izquierdo called
him in and said:
the list on Izquierdo's desk. Sanchez, however, was apparently not asked
for any comment
" The reference obviously was to Juan Jose Garcia, not to be confused
with Pelayo A Garcia Suarez, one of the alleged discriminatees
THE SHELL COMPANY 1233
... that he was calling one by one the em-
ployees to have an idea how many he could
count on-then he told me that he already
counted with Israel Martinez, Luciano Felix
Diaz, Jose Juan Garcia, Luis A. Corps, Carlos
Mario Cordova, and Francisco Ortiz.
After Izquierdo told him of the advantages of work-
ing without a union , Rodriguez gave his assurance
that he could be counted on. Employee Ortiz
testified that:
Mr. Izquierdo would tell us that he admired
Martinez because he always had expressed
himself openly in favor of the company and
against the union and that on the contrary
there were a few ungrateful ones who were not
men enough to express their feelings.
Such statements manifestly would be calculated to
induce disclosures of positions.
Izquierdo himself testified that he called each
employee into his office individually.16 Such in-
dividual interviews in the superintendent's office
could be expected to elicit more information con-
cerning the union views of employees than would
group meetings . Thus the Examiner rejects Respon-
dent's apparent argument that coercive interroga-
tion is disproved by the fact that at the employee
meeting on May 24, Izquierdo rejected Garcia's
request that a show of hands be had." Respondent
does not deny acts of individual interrogation, but
argues that "the acts of interrogation were discon-
nected and unplanned; no threats or promise of
benefits were made curing the interrogations." The
Examiner , however, finds that Izquierdo's inter-
rogations of individual employees in his office were
not isolated but rather were part of an overall pat-
tern of interference with the employees' Section 7
rights.
5. Conclusion
As previously observed, the employee witnesses
all readily conceded that no overt threats of reprisal
were made by Izquierdo or any other representative
of management. Generally speaking, the promises
and conferrals of benefits made by Respondent
were not conditioned upon the employees' rejecting
the Union. But throughout the campaign, from
Izquierdo's arrival on April 1 until the second elec-
tion, held on August 16, Respondent engaged in a
continuous antiunion campaign, which, though low-
keyed, was coercive-the fist in the velvet glove. In
toto Respondent's conduct was coercive and inter-
fered with its employees' rights under Section 7 of
the Act. N.L.R.B. v. West Point Mfg. Co., 245 F.2d
783 (C.A. 5), enfg. in pertinent part 115 NLRB
448; N.L.R.B. v. Popeil Bros. Inc., 216 F.2d 66
(C.A. 7), enfg. in pertinent part 101 NLRB 1083.
C. The Discharge of Rubio and Garcia
On August 17, the day after the second election,
which the Union won, Rubio and Garcia, the moving
forces in the union organizational activities, were
discharged. The General Counsel alleges that their
discharge was discriminatorily motivated, in viola-
tion of Section 8(a)(3) of the Act. Respondent
maintains that Rubio and Garcia were discharged
for cause and also contends that Rubio was a super-
visor within the meaning of the Act.
1. Rubio's status under the Act
Respondent's airport personnel worked in crews.
When lzquierdo replaced de Sevilla as plant su-
perintendent on April 1, there were three crews,
consisting of four members each. The four mem-
bers, called airport attendants, rotated as crew
leaders, each serving as such for I week. Sometime
in April one member of each crew was named crew
leader on a permanent basis with the title of "Air-
port attendant leadman," and an increase in pay
from $340 to $370 per month.
Rubio, Garcia, and Leadman Felix testified that
the leadman's duties were no different on a per-
manent basis from what they had been on a rotating
basis . Respondent's witnesses confirmed this,
lzquierdo testifying as follows:
0. These three I just named, who became
permanent leadmen, you had occasion to talk
to them about the fact that they were now per-
manent leadmen, did you not?
A. Yes.
Q. And you told them that the work was to
continue the same as before, did you not, but
not for them to get too lazy?
A. Correct.
Q. And they continued working as they had
been in the past, correct?
A. Correct.
Izquierdo then testified that the leadmen 's salaries
and "their responsibilities were increased" but his
further testimony made it clear that the " increased
responsibility" consisted solely of serving in the
capacity regularly rather than only every fourth
week. Rubio had been asked his opinion by Izquier-
do and said he was in favor of having the positions
i" He explained this conduct as follows "I did it individually for two
reasons one, because there is only one group in a shift and they are doing
the work and I can only take out one man to talk to him-second, because I
considered that if I did it individually they would be more open and frank to
tell me the things that they wanted as reforms in the plant-and besides
that, if I got them all together , I was beginning in the job and I wanted to get
to know them and the best way to do it was to take them individually " It
appears, however, that each crew spends almost half an hour at the plant
after it punches in and before it reports for duty at the ramp
" The suggestion was made because Izquierdo had previously said that
five or six employees had told him that they were opposed to the Union and
he accordingly asked Rubio and Garcia to have the election called off
They had replied that they would be happy to if the employees showed they
did not want the Union, since there was no sense in going to an election
which could not be won
1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
made permanent but only if there was a pay incre-
ment for meeting the responsibility on a full-time
basis.
The permanent leadmen voted in both elections
without challenge and were included in Respon-
dent's Excelsior list. It further appears that under
the prior SIU contract leadmen (or crew leaders, as
they were then called) were included within the
bargaining unit although they also received a $30-
per-month wage differential over the other em-
ployees.
Leadmen punch a timeclock as do other em-
ployees, they get paid for regular work and over-
time as other employees do and have the same
benefits as the other airport attendants. The
evidence is undisputed that the leadmen have no
authority to hire, fire, or discipline employees.
They cannot excuse employees who want to leave
early, even in the evening after the office is closed,
with neither the superintendent nor the assistant su-
perintendent present. This was established by con-
siderable testimony by witnesses for the General
Counsel concerning specific incidents. It was con-
firmed by Leadman Martinez, Respondent's wit-
ness , who testified as follows:
Q. Have you ever excused workers early, al-
lowed them to go home?
A. I am not authorized to do it, unless of
course in case of accident or a major cause.
In its brief, Respondent bases its contention that
the leadmen are supervisors primarily on the fact
that the leadman is the highest ranking employee
present at the airport after Izquierdo and Assistant
Plant Superintendent Pagan have left, which occurs
usually around 6 to 7 p.m., with the employees
remaining on duty until midnight. Either Izquierdo
or Pagan (more often Pagan) is present on Satur-
day and Sunday, though possibly not for the entire
working time. The leadman is never given a key to
the office. The evidence is clear that when neither
Izquierdo nor Pagan is present the leadman has no
more than routine authority. The home telephone
numbers of all supervisory personnel (including
Pagan, Izquierdo, and their superiors) are posted at
the plant for use in the event of any unusual or
other than purely routine problem. Izquierdo has a
radio telephone in his car so he can be reached in
the event of any nonroutine incident. Martinez,
Respondent's witness, corroborated the fact that
leadmen have authority over only routine matters,
testifying as follows on direct examination:
Q. And during those 18 hours [the total
workday] is there constant supervision of your
work.
A. Not necessarily
0. Would you please explain what you
mean by that?
A. According to the flights that there may
be and if things are normal, the supervisor asks
me how is the work and if everything is going
normally he rests his responsibility upon me.
Izquierdo and Pagan visit the ramp, the scene of ac-
tual operations , up to five times during a shift, often
staying there as long as an hour at a time . The com-
pany jeep is used to get the supervisor from the
plant if anything unusual arises at the ramp in his
absence.
The specific responsibilities of the leadman are
the following: They secure schedules of planes to
be fueled during their shift by checking the Eastern
Airlines board. Anyone can do this and often mem-
bers of the crew other than the leadman will do it.
The leadman also takes meter readings and secures
the signature of the airline 's flight engineer on an
"invoice," which is essentially a delivery receipt. In
addition, both before and after a plane is refueled,
the leadman makes a simple test, taking a few
seconds, to assure that there is no water in the fuel.
He initials reports of these tests and secures the ini-
tials of the airline 's flight engineer.
The particular equipment to be used on each
shift is determined by lzquierdo or Pagan.
Thereafter, if there is more than one plane to be
refueled at a time, the leadman can say which
equipment is to be used on each plane. If there are
more than two planes to be fueled at the same time,
the leadman can say which is to be fueled first, but
it is mandatory that Eastern planes be given priority
over any others. Leadman Felix testified that if, on
checking the plane schedule, he thinks that the as-
signed equipment is insufficient, he or one of his
crew members so reports to Izquierdo or Pagan.
It is also mandatory that personnel be available
to fuel any scheduled Eastern Airlines plane. Thus,
if an Eastern plane is scheduled to arrive after mid-
night (the end of the night shift), the leadman can
require personnel to stay overtime, but he is
prohibited from doing so under any circumstances
for any other planes. In other situations, Izquierdo
or Pagan will direct overtime. The leadman may
then name the employee to serve or the employees
apportion overtime among themselves.
Rainey testified that when, under the SIU con-
tract, crews had five members each," the new crew
chief's duties were essentially the same as those of
the present leadmen. He described these duties as
follows:
Q. And when you had a five man crew, what
did the crew chief do?
A. He didn't do anything but he went into
the operations room and got the flights and the
flight times and their estimated time of arrival
and then he determined from the flight en-
gineer what the fuel was to be put aboard.
Then he saw to it that his crews were
dispatched to the planes which had to go out
first and then he saw to it that they were
hooked up properly, that the fire extinguishers
" There was some evidence that at one time crews consisted of seven
men each
THE SHELL COMPANY 1235
were set aside and that the [ grounds] and
everything were connected and that the equip-
ment was in good shape . And then when the
refueling was over , he made out the invoice,
actually a delivery receipt and had it signed
[that] the fuel had been received in good con-
dition , free of water and all this other thing
that is on this particular delivery receipt.
Now, with four-men crews , the crew leader spends
most of his time ( 99 percent according to Rubio)
doing the same manual work that the other em-
ployees do . ly When not refueling planes , the em-
ployees are required to wash, grease , and otherwise
service their equipment , consisting of fuel trucks
and hydrant trucks . While the leadmen sometimes
specify the vehicles to be serviced , they do the ser-
vicing just as the other employees do.
That the leadman is Respondent 's highest rank-
ing employee at the airport evenings , after Izquier-
do and Pagan have left, does not make the leadmen
"supervisors ," since their work is generally well
mapped out in advance and purely routine . Stewart
& Stevenson Services, Inc., 164 NLRB 741. In assig-
ning their crewmembers to particular planes and
equipment when there is more than one plane to be
refueled , the leadmen similarly serve in a routine,
nonsupervisory capacity . Other members of the
crew substitute for the leadman when he is on vaca-
tion . Fresno Auto Auction , Inc., 167 NLRB 878;
ITT Federal Corp., 167 NLRB 350; Great Lakes
Towing Co., 168 NLRB 695; Don The Beachcomber,
163 NLRB 275. The leadmen work alongside of the
crewmembers and perform the same manual work.
The leadmen have no authority to hire or fire, take
disciplinary action , or excuse workers, or effective-
ly to recommend any such action . Accordingly,
although the airport attendant leadmen receive a
small (less than 10 percent ) wage differential and
have certain operating responsibilities , they are, as
their title indicates , simply "leadmen" and not su-
pervisors within the statutory definition .'" American
Coach Co., 169 NLRB 1065, Ross Porta-Plant, Inc.,
166 NLRB 494; Steves Sash & Door Co., 164 NLRB
468.21
2. The discharge
On August' 17, the day after the Union won the
second election , Rubio and Garcia arrived at the
airport about 2:30 p.m., half an hour before they
were to punch in and an hour before their crew was
to relieve the crew then on duty, which was led by
Martinez . When they arrived at the airport, Rubio
and Garcia went out on the ramp , where Martinez'
crew was fueling an Eastern Airlines plane . Several
Eastern Airlines mechanics were present , including
the president of the Union . Rubio and Garcia jubi-
lantly greeted the mechanics and the Shell em-
ployees present , with mutual "congratulations" on
the Union 's victory in the Shell election the preced-
ing day.
Rubio and Garcia twitted Martinez by saying
generally: "Where are the people who were going
to get only 5 or 6 votes ?" or "Look at the people
who you said were going to get only 5 votes."
Martinez testified that in addition to being re-
minded of his frequent prediction that the Union
would receive only five or six votes , he had been
"threatened " as follows:
Mr. Pelayo [Garcia ] and Mr . Rubio came to
the ramp ... They started to congratulate the
mechanics and to my co -workers, then Rubio
came on one side of the hydrant car and
Pelayo and the others , I was facing , we were
about five feet apart ... and Mr. Sanchez and
Mr. Cordova were on the upper part of the
hydrant car , one on each side . Rubio then
came to me and told me , Martinez , what do
you say now, you used to say we were not
going to get even five votes , what are you
going to do now . I replied , Rubio , I am going
to join the union because I cannot leave my
work . But didn't you say you were leaving, and
I said , well, you send me my check at home,
then I will go.
Then Pelayo told me that I had always said
that if the union should win I would go, that
men abide by their word , and consequently I
should leave . I replied that if he would send my
check home I would leave . Then he told me
that if I did not quit , he would make enough
pressure so that I would have to leave. And I
went away from them....
Garcia and Rubio unequivocally denied that either
of them had made any threats to Martinez.
Cordova, Sanchez, and Rodriguez , members of
Martinez ' crew, and Berrios, a member of Rubio's
crew , all testified on behalf of the General Counsel.
Cordova testified that he had seen and heard
everything that went on at the time . He denied that
either Rubio or Garcia had made any threats to
Martinez . 22 He also testified tthat , although he had
often heard Martinez say that he would quit his job
if the Union won , neither Garcia nor Rubio made
1' When there is only a plane to be fueled , all four crewmembers do it,
two on each side of the plane Although Rainey testified that only two men
are needed to fuel a plane, the men performing the work testified that the
hoses are so heavy that it is only by the exertion of great physical effort that
one man can attach it to or detach it from a plane The evidence was un-
disputed the 13 employees are now doing the work performed by about 37
men under the SIU contract
d' In testifying that Garcia and Rubio had been guilty of misconduct in
going out on the ramp when they were not on duty there , lzquierdo said
that only supervisors have passes permitting them to do so He thereafter
stated that Respondent 's leadmen do not have such passes
t' See also, e g , N L R B v Beaver Meadow Creamery, 215 F 2d 247,
251 (C A 3), cited in Respondent's brief , which sustains a decision by a
Trial Examiner and the Board that a specific employee was a nonsuperviso-
ry "leadman " It would serve no useful purpose to review cases cited by
Respondent in which specified employees were found to be supervisors
Suffice it to say that they are all factually distinguishable from the present
case
d2 Cordova testified that Garcia and Rubio both shook hands with Mar-
tinez However, all the other relevant testimony shows that Rubio did not
shake hands with Martinez but Garcia did This minor error in Cordova's
testimony does not warrant his being discredited
1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any reference to this matter at the ramp on August
17. Employee Sanchez testified that he heard Rubio
say to Martinez, "Here you have the people who
were going to get only 5 votes in the election," and
Garcia said, "Oh, boy, how [we] won!" He did not
hear either Garcia or Rubio say anything more to
Martinez. Sanchez testified that he had heard
everything said and had seen the whole incident,
except for a short time when he turned his back to
disconnect a hose On cross-examination, Respon-
dent's counsel introduced a statement Sanchez had
given Respondent's counsel on August 21. That
statement said inter alia.
That at the moment in which I heard Messrs.
Garcia and Rubio bid Mr. Martinez a good af-
ternoon I turned my back to them to gather the
equipment utilized in my work, and at that mo-
ment I saw Mr. Israel Martinez leave in a jeep,
apparently very mad.
That although I saw Mr. Martinez leave the
area where we were with anger (by the way he
left) [23] I do not know what caused him to act
in this manner since at that time there was a
plane started up its motor at approximately
125 feet from where we were standing which
prevented me from hearing the conversation
being taken place between Martinez, Garcia
and Rubio. [241
When asked about the statement at the hearing,
Sanchez said: "What I heard was before the plane
started its motors and, as I say in this statement,
Martinez had left when the motors started." The
Examiner concludes that Sanchez did not hear
everything that was said among Garcia, Rubio, and
Martinez. However, the Examiner credits his
testimony that he did not hear Rubio or Garcia
make any threats to Martinez or any reference to
Martinez' prior statements that he would quit his
job if the Union won the election. Rodriguez, also a
member of Martinez' crew, testified that he was
present on the ramp at the time in question but did
not see or hear the crucial parts of Martinez' con-
versations with Garcia and Rubio. Berrios, a
member of Rubio's crew, arrived at the ramp to
seek transportation to the plant. He testified that he
had seen the various people there but paid very lit-
tle attention since he "did not give it any im-
portance." Thus Rubio and Garcia were cor-
roborated in toto by Cordova and in substantial part
by Sanchez. There was no corroboration of Mar-
tinez' version of the incident at the ramp.
After the verbal exchange with Garcia and Ru-
bio, Martinez left in the company jeep and went to
the Eastern Airlines flight office. Within a very
short time Garcia, Rubio, and Berrios also left the
ramp and went to the plant, where they changed
into their uniforms, punched in, and then went to
the dining room. They were in the dining room with
Ortiz, the fourth member of the crew, receiving in-
structions from Izquierdo concerning the equip-
ment they were to use that day. Martinez stormed
in.25 He infomed Izquierdo that he was not going to
take any more harassment and threats from Rubio
and Garcia. Rubio asked him what he meant. Rubio
denied that he had ever made any threats and
called Martinez a liar. At that point Martinez asked
Rubio to go outside with him and settle the matter.
Rubio said that he was on working time and due at
the ramp to relieve the rest of Martinez' crew, but
that he would be happy to meet Martinez there or
outside if Martinez would return at midnight, when
Rubio finished work. Garcia tried to intervene and
end the argument, telling Rubio to stop arguing
since they were on working time and the Company
was looking for a reason to fire him. Rubio testified
that he did not hear Garcia's cautionary statement
because he was so involved in the argument and
excited.2e It was lzquierdo who ended the argument
by ordering Martinez to go into the office and Ru-
bio, Grcia, and the two other members of the crew
to go to the ramp, where they were due to start
workin*.
Martinez then went to change his clothes to leave
for home and Izquierdo telephoned Personnel
Manager Graciani at Respondent's home office in
San Juan. Izquierdo told Graciani that there had
been an argument and asked if it would not be
possible to transfer Martinez to some other loca-
tion, since he was so outspokenly out of sympathy
with the prounion sympathies of the other em-
ployees at the airport. Graciani spoke with Rainey
and then called Izquierdo back, asking him to bring
all three employees to the home office. According
to Izquierdo, Martinez went to the home office in
his own car because he was all dressed and ready to
leave for home. Rubio and Garcia, who were then
on working time, went with Izquierdo in his car.
When they arrived at the home office, Garcia and
Rubio were put in separate rooms so that, accord-
ing to Izquierdo, they could not "get together" on
their stories. Martinez was the first to be inter-
viewed by Graciani and Rainey. Next came Rubio,
" When asked if Martinez was angry when he left the ramp, Sanchez
replied "The way he took off in the deep, yes, because he left about half a
pound of tire on the runway-although he does that often "
" The English translation of Sanchez' statement, as quoted here, was
stipulated by counsel to be accurate
d5 There is complete unanimity among the witnesses that Martinez' en-
trance was tempestuous
'" There was some conflict of evidence as to which, if either, of the
protogonists issued an invitation to fistcuffs outside In its brief, Respon-
dent says "An argument ensued with both men challenging each other to
settle the matter in the most honorable manner known to Puerto Rican
males, namely, with their fists " This appears to be a reasonably sound
inference from the evidence Respondent's further statement that "Garcia
intervened indicating to Rubio that he should not fight Martinez at that
time but that they should wait until midnight at which time they could 'take
care' of Martinez" is not so clear While it is clear that Rubio said that he
and Garcia would see Martinez if he cared to return at midnight , the Ex-
aminer does not find that they challenged Martinez to return for a fight
Respondent apparently does not seek to justify the discharges on the basis
of the argument in the dining room
THE SHELL COMPANY 1237
and then Garcia. According to Rainey and Gra-
ciani, each of the three employees gave essentially
the same version of the events that he gave in testi-
fying at the hearing, as summarized above.27
After interviewing the three employees in-
dividually, Rainey spoke to Rubio and Garcia
together and told them to return to the airport, pick
up their personal belongings and leave. According
to Rubio and Garcia, Rainey said he was dismissing
them "Even though it is against the company
lawyer's opinion ... and against the Union and
against the National Labor Relations Board."
Rainey maintained that, although he had decided
they should be discharged, he simply suspended
them pending further investigation.
Under date of August 18, the next day, Rainey
wrote to Rubio and Garcia as follows:
A Management review of your dismissal
which is always done in these cases has
resulted in the decision to maintain this dismis-
sal until September 6, 1967 at which date we
will notify you as to whether this is a per-
manent dismissal or whether you will be rein-
stated to your position.
During this time , a further investigation will
be made of all matters related to the incident
in which you were involved on August 17,
1967.
Use of the word " dismissal " in the letter is hardly
consistent with Rainey's insistence that he had in-
formed the employees only that they were being
"suspended."
On cross-examination, Rainey said that not he,
but his superior, Managing Director Noel Totti, had
ordered the investigation and that Totti had
directed Rainey to write the "suspension" letters of
August 18 28 and subsequent "permanent dismissal"
letters of September 5. So far as appears, Totti had
had no contact with the matter before Rainey sent
Rubio and Garcia home. Rainey testified, also on
cross-examination, that Totti always makes the final
determination to discharge people, but there is no
evidence that Rubio and Garcia were informed that
Rainey's action was subject to review by higher
authority. Nor is there any evidence of an
established practice to have discharges or suspen-
sions subjected to "Management review."
Rainey testified that he had no personal
knowledge of the subsequent investigation. Neither
,_Totti, who allegedly ordered the investigation and
made the final decision to dismiss the men, nor At-
torney Jose Bengoa ,29 who conducted the investiga-
tion, testified at the hearing. With the exception of
a statement introduced to impeach Sanchez,
Respondent introduced no evidence gathered in the
course of Respondent's "post-suspension" in-
vestigation. So far as appears, the "investigation"
did not turn up a shred of evidence against Garcia
and Rubio. Bengoa did not call Garcia and Rubio in
for interviews; nor did he call in eyewitness Cor-
dova.
When asked precisely why he decided that Rubio
and Garcia should be discharged, Rainey said that
it was because he believed they had not told him
the entire truth about the matter and because they
had been harassing Martinez and other members of
the "minority group," i.e., the antiunion employees.
The evidence failed to show that Garcia or Rubio
had had any difficulties with any fellow employees
other than Martinez. Indeed, when asked why he
had suggested that Martinez be transferred, Izquier-
do said:
Mr. Martinez was the only employee at the
plant at the airport who was constantly under
pressure for the simple reason that he was not
in agreement with the union movement-Mar-
tinez would talk about it publicly and the other
employees would keep it to themselves.
On cross-examination Rainey testified, in effect,
that he believed Martinez rather than Rubio and
Garcia because Rubio and Garcia had given identi-
cal versions of the events of August 17. It is dif-
ficult to understand this basis for Rainey' s resolu-
tion of the credibility issue , particularly since Rubio
and Garcia were interviewed separately and, ac-
cording to Izquierdo, had been put in separate
rooms before their interviews "to avoid their
getting together in their statements ." The only
reason that Rainey suggested for disbelieving Rubio
and Garcia was their inability to explain why Mar-
tinez had been disturbed when he came to the din-
ing room and told Izquierdo that he would not put
up with any more threats.
Rubio, Garcia, Cordova, Sanchez, and Leadman
Felix testified that Martinez was quick-tempered
and quoted Izquierdo as having expressed the
opinion that Martinez was unduly excitable and
rose to anger without learning the facts .3' Although
Izquierdo denied having entertained or expressed
any such opinion of Martinez, the fact is that
Izquierdo's response to the argument on August 17
was to call the home office to see if Martinez could
be transferred elsewhere.31 So far as appears, he did
'7 According to Garcia, Graciam said Martinez had accused Garcia of
pushing him However, the evidence clearly establishes that the argument
never got to the point of physical encounter
°M Rubio testified that when he and Garcia went to Respondent's home
office for dismissal letters on August 18, Graciam said "Well, that is a very
delicate letter that has to be written by a lawyer I cannot make it
because if I put in one word that can he misconstrued for another that is a
responsibility which I am not going to take " It was Graciam who later
handed them the "suspension " letters
m' Mr Bengoa , Respondent 's counsel, is apparently not associated with
counsel representing Respondent in the present proceeding
° There was additional evidence that some employees objected to Mar-
tinez' refusal to do his share of work Also, both Izgmerdo and Sanchez in-
dicated that Martinez frequently reported employees to the supervisors, a
practice hardly calculated to enhance his popularity
31 lzquierdo so testified Personnel Director Graciam denied that lzquier-
do had made any such suggestion However, Rubio and Garcia quoted
lzquierdo as having mentioned his attempt to secure a transfer for Martinez
both before and after the visit to Respondent's home office
1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not reprimand Rubio and Garcia or contemplate
doing so.
Perhaps the most telling fact about Rainey's
motivation was his failure to question any of the
eyewitnesses or to consult Izquierdo before decid-
ing to discharge the two men. Rainey testified
unequivocally that he had not asked for Izquierdo's
opinion or recommendation Izquierdo was plant
superintendent in constant contact with and super-
visor over the employees.31 Since Rainey, Totti, and
Graciani worked at the home office, miles away
from the airport, it is impossible to understand why
they would not seek the benefit of Izquierdo's view
if their real concern was justice to the employees
and efficiency of the airport operation.
To support his belief of Martinez and disbelief of
Garcia and Rubio, Rainey suggested that Garcia's
alleged threats on August 17 were part of an
established pattern. Rainey testified as follows:
Then there were other rumors of Garcia and
Rubio harassment and after the first election,
in which the company won the majority, Mr.
Sevilla, who was superintendent at the airport
at that time, called me and told me that the
people who were thought to have voted for the
company were being harassed and threatened
with paintings of skull and crossed bones on
their lockers.33
Rainey then testified that he then instructed de
Sevilla to maintain surveillance of the situation. The
most interesting aspect of this testimony is the fact
that de Sevilla left Respondent's employ on March
31 and the first election was not held until May 3 1.
Izquierdo, who was the plant manager at the time
of both elections, gave no testimony similar to that
attributed to de Sevilla by Rainey. Izquierdo
testified:
A. I knew that Mr. Martinez had brought to
me situations in which he had been involved
with the majority of the group because he did
not accept to belong to the union that they
were trying to form-Rubio and Pelayo Garcia.
Q. Could you give us any details as to these
situations or problems?
A. Really, I was not present in these situa-
tions
In answer to the next question, Izquierdo told of
Martinez' having once complained that Garcia,
while serving as leadman while Rubio was on vaca-
tion, had left planes to be fueled by Martinez' crew
when Garcia's crew "at least should have con-
nected the hydrant carts to start the refueling of
these planes" because the planes might be late in
leaving if they waited for the afternoon crew and
"the responsibility would fall on the afternoon
group." An argument ensued between Martinez
and Garcia. There is nothing to indicate that the
dispute was part of a campaign of "harassment" of
nonunion employees, and certainly nothing to im-
plicate Rubio, who was then on vacation. And
Izquierdo was not sufficiently disturbed about Mar-
tinez' reports to remember any other details or, ap-
parently, to report them to the home office.
Rainey testified to having heard of the problems
experienced by Martinez because of his outspoken
opposition to the Union. However, it developed
that the alleged "harassment" was perpetrated not
by Rubio and Garcia but by Eastern Airlines
mechanics. Rainey testified as follows:
I do know this, that there had been some in-
sidious tactics used against Martinez' group by
causing delays in signing the delivery receipts
of the mechanics, Eastern's mechanics are sup-
posed to sign this delivery receipt, but when
the group would finish the delivery into the air-
plane, there was nobody around to sign the
delivery receipt and therefore we would have
to delay and delay and delay until it got to the
point where I had to call Eastern's manager and
ask him to see to it that the mechanics who are
members of the machinists group would ex-
pedite the signing of these visits, that they were
delaying the whole Pipeline down there, and
this seemed to take place only on Martinez'
group.
Q. Did you have any reason to believe that
Rubio had anything to do with that?
A. No, I have no reason to believe other
than the fact that he was part of the union
movement there, but actually, Your Honor,
this has nothing to do with my decision to let
these two young fellows go. I did not really
think about how they were going to implement
their threats [to "get" Martinez' job], but I'm
sure that they would find a way.34
Rubio and Garcia testified without contradiction
that, except for having obtained the union
representative's name from an Eastern Airlines
mechanic, they did not seek or receive any aid in
their organizing campaign from airlines employees.
Martinez' testimony confirmed the fact that any
"harassment" he suffered was inflicted primarily by
Eastern Airlines mechanics. He testified that when
he finally signed a union card Garcia and Rubio
" Assistant Plant Superintendent Pagan, the only other supervisory em-
ployee with firsthand knowledge of the personnel situation at the airport,
did not testify
Z1 Rubio testified to having seen " R I P " painted on some lockers at this
time He said he assume the letters stood for "rest in peace " He denied
having participated in locker defacement and no evidence was adduced im-
plicating him in any such activity
" In its brief, Respondent repeats the theme that union affiliation in itself
raises a presumption of wrongdoing which renders specific proof unneces-
sary It says "What methods [Garcia and Rubio I used to persuade the anti-
union employees to change their minds we shall never know with certainty
We can, however, use our imaginations, and being familiar with the tradi-
tional methods of persuasion utilized by labor unions, figure out what this
particular union did to change the minds of these anti-union employees " It
may be noted at this point that Respondent voluntarily agreed to having the
first election set aside after the Union had filed objections
THE SHELL COMPANY 1239
took him to the mechanics , who said that because
Martinez had signed " the pressures would end,"
and they did end. Thus, even according to Mar-
tinez , there was no continuing history of "harass-
ment" when Rainey decided to dismiss Garcia and
Rubio. Accordingly, there is no apparent basis for
Rainey's professed conclusion that the "circum-
stantial evidence " supported Martinez ' version of
the conversations at the ramp on August 17 rather
than that of Rubio and Garcia. While it does appear
that the feeling between Martinez on the one side
and Garcia and Rubio on the other may have been
something short of mutual admiration and affec-
tion , there is no evidence other than Martinez' un-
corroborated charges that Rubio and Garcia, in
Rainey 's words , "were threatening that they `were
going to take [ Martinez'] job away from him."' On
the contrary, Rubio testified, without contradiction,
that when Izquierdo said that he would try to have
Martinez transferred , Rubio said : " Mr. Izquierdo,
do not do that , Martinez is a head of a family just
like we are and he has children.... Do not do that,
he can work in peace and quiet here with us.'
;
Rubio explained that " the main place here to make
more money is at the airport."
At one point Rainey testified that Rubio and Gar-
cia were discharged in part because "they inter-
rupted the work of Shell employees at work." How-
ever , there was no evidence to support this claim,
nor did Rainey suggest any basis for his having
thought so. Respondent sought to establish that
Rubio and Garcia were violating company and
FAA regulations by going out on the ramp on Au-
gust 17 when they were not on duty. First, it should
be observed that such alleged misconduct was not
stated as the reason for the discharge at the time.
No FAA regulations were produced and it was
clear that the Company itself had never prescribed
or enforced any such restrictions. Further, the un-
contradicted evidence was overwhelming that
several employees regularly went out on the ramp
when they arrived at work in order to secure trans-
poration by the company jeep to the Shell plant,
which is about a mile away from the ramp. Mar-
tinez himself testified to having done so. And it is
clear that management was fully aware of this prac-
tice, de Sevilla, Izquierdo, and Pagan all having pro-
vided transporation or having directed others to do
so under those circumstances. There also was
credited evidence of employees' having been on the
ramp under other circumstances when not on duty.
Although it was conceded that Garcia and Ru-
bio35 were eminently satisfactory employees,
Respondent adduced evidence of a prior alleged ex-
ample of "harassing" conduct by them. Respon-
dent's witnesses testified that the manager of
Pipelines (Puerto Rico)Inc., a separate corporation
affiliated with Respondent '31 had complained to
Respondent that Garcia and Rubio were "mo-
lesting" Pipelines employees. Personnel Director
Graciani testified that the complaint was that Gar-
cia and Rubio "were harassing the Pipelines em-
ployees telling them they were pretty boys that they
worked with air conditioning and that that situation
was going to end very soon." Rainey said that Gar-
cia and Rubio were threatening Pipelines' em-
ployees that "whenever the union came in they
were going to take over the pipeline and their
jobs." According to Rubio and Garcia, Respon-
dent 's and Pipelines ' employees had been engaging
in mutual "needling" for sometime. When Graciani
told Rubio and Garcia of the complaints and or-
dered them to stop, they stopped their "needling"
and that was the end of the matter. Graciani said
that written reports of the matter had been put in
Rubio's and Garcia's personnel files but the reports
were not produced at the hearing . Garcia and
Rubio credibly testified that they had not seen the
reports and had not been informed that any had
been made.
On cross-examination of some of General Coun-
sel's witnesses, Respondent adduced evidence that
Rubio had lent money to some of his fellow em-
ployees and had sold watches to some of them.
Over the General Counsel's objections the Ex-
aminer permitted such questioning, on the assump-
tion that its purpose was to impeach the witnesses
by showing possible motivation to testify favorably
to Rubio. In its brief Respondent appears to argue
that Rubio's commercial activity was a contributing
cause for his discharge. Without suggesting that the
evidence shows any impropriety in Rubio's activi-
ties, the Examiner notes only that they played no
part in the discharge, and probably were not even
known to Respondent at that time. Respondent's ir-
revelant reference to them now underscores the
conclusion, required by the record as a whole, that
Respondent was looking for some pretext on which
to discharge those responsible for bringing in the
Union.37 On all the evidence, the Examiner finds
that Rubio and Garcia were discharged for their
union activities , in violation of Section 8(a)(3) and
(I) of the Act.
15 Respondent 's witnesses were particularly generous in their praise of
Rubio It was shown that sometime in April, because of his superiority as an
employee , he, as well as Martinez, had been asked to take a psychological
test to qualify for a position as a salesman In its brief , Respondent says that
Rubio and Garcia ' attempted to show that Respondent was trying to get rid
of Rubio through the offer of a sales job " The Examiner did not have this
impression of testimony So far as the Examiner could see, the evidence
was adduced to establish , and did establish , only that Respondent con-
sidered Rubio a good employee
' Pipelines' and Respondent's offices are together at the airport
17 Respondent also suggests , without a shred of evidence , that Rubio's
commercial activities may conceivably have been used as an instrumentali-
ty of coercing antiunion employees to vote for the Union This unsupported
speculation is but added detail establishing pique at the Union 's victory as
Respondent 's motivation in discharging Rubio and Garcia
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. The Shell Company ( Puerto Rico ) Limited is
an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. International Association of Machinists and
Aerospace Workers , AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By promising to and conferring benefits on its
employees to influence their exercise of Section 7
rights , by interrogating its employees as to their
union sympathies , and by impliedly threatening
worsened working conditions if the employees
selected the Union to represent them , Respondent
has engaged in and is engaging in unfair labor prac-
tices affecting commerce within the meaning of
Section 8 (a)(1) of the Act.
4. By discharging Pelayo A. Garcia Suarez and
Ricardo Rubio Sacarello for engaging in union ac-
tivities , Respondent committed unfair labor prac-
tices affecting commerce within the meaning of
Section 8 ( a)(3) and (1) of the Act.
THE REMEDY
Having found that Respondent has engaged in
unfair labor practices violative of Section 8(a)( I )
of the Act, the Examiner will recommend that it be
ordered to cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the
policies of the Act.
Having found that Respondent unlawfully
discharged Pelayo A. Garcia Suarez and Ricardo
Rubio Sacarello, the Examiner will recommend that
Respondent be ordered to offer those employees
immediate and full reinstatement to their former or
substantially equivalent positions at Respondent's
facility at the International Airport, Isla Verde,
Puerto Rico, without prejudice to their seniority or
other rights and privileges, and make them whole
for any loss of pay they may have suffered as a
result of their discharge by payment of sums of
money equal to those they would have earned as
wages from August 17, the date of their discharge,
to the date of Respondent's offers of reinstatement,
less their net earnings during such period, com-
puted quarterly, with interest in accordance with
the formulae prescribed in F. W. Woolworth Com-
pany, 90 NLRB 289, and Isis Plumbing & Heating
Co., 138 NLRB 716.
Upon the foregoing findings of fact and conclu-
sions of law and the entire record, and pursuant to
Section 10(c) of the Act, it is hereby recommended
that the following be issued:
ORDER
Respondent , The Shell Company ( Puerto Rico)
Limited, its officers , agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Promising or granting its employees wage in-
creases, improved status or tenure , improved work-
ing conditions , or any other betnefits in order to
discourage their support of a labor organization.
(b) Threatening employees with stricter discipli-
nary action or other worsening of terms and condi-
tions of employment for their choosing to be
represented by a labor organization.
(c) Coercively interrogating employees concern-
ing their union activities and sympathies or the
union activities and sympathies of other employees.
(d) Discouraging membership in the Interna-
tional Association of Machinists and Aerospace
Workers, AFL-CIO, or any other labor organiza-
tion, by discriminating against any of its employees
as to hire, tenure , or other terms or conditions of
employment.
(e) In any, like or related manner interfering
with, restraining , or coercing employees in the ex-
ercise of their rights guaranteed in Section 7 of the
Act.
2. Take the following affirmative action, which it
is found will effectuate the policies of the Act:
(a) Offer Pelayo A. Garcia Suarez and Ricardo
Rubio sacarello immediate and full reinstatement to
their former or substantially equivalent positions
without prejudice to their seniority or other rights
and privileges.
(b) Make Pelayo A. Garcia Suarez and Ricardo
Rubio Sacarello whole for any loss of earnings suf-
fered by them in the manner set forth in the section
of the Trial Examiner's Decision entitled "The
Remedy. '•"
(c) 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 Selection
Service and Universal Military Training and Service
Act of 1948, as amended, after discharge from the
Armed Forces.
(d) 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 records necessary to analyze the amount of
backpay due and the rights of employees under the
terms of this Recommended Order.
(e) Post at its plant at the International Air-
port, Isla Verde, Puerto Rico, and at its plants and
offices in Catano, Guayanilla, San Juan and Ponce,
Puerto Rico, copies of the attached notice marked
"Appendix,"' together with accurate translations
thereof in the Spanish language. Copies of said
I 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 "
THE SHELL COMPANY 1241
notice, on forms provided by the Regional Director
for Region 24 (Hato Rey, Puerto Rico), after being
duly signed by Respondent's representative, shall
be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 24,
in writing, within 20 days from the date of this
Decision, what steps Respondent has taken to
comply herewith.39
'" 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 Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
WE WILL offer Pelayo A. Garcia Suarez and
Ricardo Rubio Sacerello immediate and full
reinstatement to their former jobs or substan-
tially equivalent jobs at the International Air-
port , Isla Verde , Puerto Rico, and we will
make them whole for any loss of pay they may
have suffered by reason of their discharge on
August 17, 1967.
All our employees are free to become or remain,
or to refrain from becoming or remaining , members
of International Association of Machinists and
Aerospace Workers , AFL-CIO , or any other labor
organization , except to the extent that such rights
may be affected by an agreement requiring mem-
bership in a labor organization as a condition of
employment , as authorized by Section 8(a)(3) of
the National Labor Relations Act.
THE SHELL COMPANY
(PUERTO Rico) LIMITED
(Employer)
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
WE WILL NOT promise or grant to our em-
ployees wage increases , improved tenure or
other terms or conditions of employment, or
any other benefits to discourage their member-
ship in or activities on behalf of International
Association of Machinists and Aerospace Wor-
kers, AFL-CIO, or any other labor organiza-
tion.
WE WILL NOT coercively interrogate our em-
ployees in regard to their union membership or
sympathies or those of their fellow employees.
WE WILL NOT threaten stricter disciplinary
action or any other worsening of terms and
conditions of employment for the employees'
choosing the above-named Union, or any other
labor organization, as their collective-bargain-
ing agent.
Dated By
(Representative ) (Title)
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 consecu-
tive 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, Seventh Floor Pan Am Building, 255 Ponce
de Leon Avenue, Hato Rey, Puerto Rico 00919,
Telephone 765-0404, Ext. 425.
354-126 O-LT - 73 - pt. 2 - 7