Union De Empleados

National Labor Relations Board - Board Decisions

Jun 29, 1971

191 N.L.R.B. 770 (N.L.R.B. 1971)

770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union de Empleados de la Industria del Enlatado de
Pescado y Ramas Anexas de P.R . and its agent,
Domingo Rivera Rosado and S.I.U. de Puerto Rico,
Seafarers International Union of North America,
AFL-CIO
Union de Empleados de la Industria del Enlatado de
Pescado y Ramas Anexas de P.R . and its agent,
Domingo Rivera Rosado and National Packing
Company. Cases 24-CC-138 and 24-CC-139
June 29, 1971
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner as modified below and hereby or-
ders that the Respondent, Union de Empleados de la
Industrial del Enlatado de Pescado y Ramas Anexas de
P.R. its officer, agents, and representatives, including
Domingo Rivera Rosado, shall take the action set forth
in the Trial Examiner's recommended Order, as so
modified.
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On March 26, 1971, Trial Examiner Marion C. Lad-
wig issued his Decision in the above-entitled proceed-
ing, finding that Respondent had engaged in and was
engaging in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached
Trial Examiner's Decision. Thereafter, the Respondent
filed exceptions to the Trial Examiner's Decision and
a supporting brief, the General Counsel filed an excep-
tion to the Notice to Members recommended by the
Trial Examiner, and one of the Charging Parties, Na-
tional Packing Company, filed a brief in support of the
Trial Examiner's Decision.
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 these cases to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and briefs, and the
entire record in these cases, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, except as modified below.'
' The General Counsel excepts to the Trial Examiner's failure to order
that the notice be posted in Spanish as well as English, because many of the
members of the Respondent Union do not understand or read English The
Board has recognized that the widespread use of Spanish fn Puerto Rico
necessitates the posting of notices in both Spanish and English We therefore
find merit in this exception and hereby amend section 2(a) of the recom-
mended Order accordingly Congreso de Uniones Industriales de Puerto
Rico, Ind., 163 NLRB 448, 449.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Trial Examiner: This case was tried
at Ponce, Puerto Rico, on January 7, 1971, pursuant to
charges filed by the SIU on November 4 and by the Company
on November 13, 1970,' and pursuant to a complaint issued
November 18. The case arose when the Respondents, the
Independent Union and its president, Mr. Rivera, called a
strike at the Company's plant on October 31, purportedly
"because of the delay of the Board" in holding an election at
the plant (where the SIU was the certified collective-bargain-
ing representative). The primary issue is whether or not an
object of the strike (which continued after the dismissal of the
petition for an election) was to force the Company to recog-
nize and bargain with the Independent Union, in violation of
Section 8(b)(4)(i) and (ii)(C) of the National Labor Relations
Act.
In lieu of testimonial evidence at the trial, the parties
agreed that the case would be decided upon the evidence
(testimony, affidavits, and exhibits) introduced in the 10(1)
proceeding, in which the district court denied the request for
a temporary injunction.
Upon the entire record, and after due consideration of the
briefs submitted by the Independent Union, the SIU, and the
Company, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE COMPANY AND THE UNIONS
INVOLVED
The Company, a Puerto Rico corporation, is engaged in
the processing and canning of tuna fish at its plant in Playa
de Ponce, Puerto Rico, where it annually receives tuna fish,
materials, and equipment valued in excess of $50,000 from
outside the Island, and ships products valued in excess of
$50,000 to points outside the Island. The Respondents admit,
and I find, that the Company is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act, and that the
Independent Union and the SIU are labor organizations
within the meaning of Section 2(5) of the Act.
' All dates are in 1970 unless otherwise indicated
191 NLRB No. 129
UNION DE EMPLEADOS 771
II THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The October 31 strike was the second strike which Re-
spondent Domingo Rivera Rosado had called against the
Company in 1970. Rivera called the first one in February,
when he was discharged as business agent for the SIU (which
had been certified in 1967 and which had a 3-year agreement
with the Company, expiring November 30). Although he had
never been employed by the Company, he led the strike
against it for about 3 weeks, until the SIU reinstated him as
business agent. A short time later, the SIU again discharged
Rivera, who thereupon threatened the Company with
another strike unless it started dealing with him as represent-
ative of the employees. On March 29, he and some former
SIU members and stewards formed the Independent Union.
Meanwhile, the SIU appointed new stewards to administer its
agreement with the Company, and the SIU official who re-
placed Rivera as business agent visited the stewards each
week thereafter. However, the Company (fearing another
strike) refused to deal with the SIU representatives, and dealt
only with the Independent Union representatives in the pro-
cessing of grievances.
During the summer, Independent Union President Rivera
visited the Company's office almost daily, without invitation.
He discussed grievances with General Manager Donald Bald-
win, and on several occasions, stated that he wanted to
negotiate a new collective -bargaining agreement with Bald-
win.
In March, after Rivera had coerced the Company (by
threat of a repeated strike) to deal solely with him, a majority
of the employees voted to withdraw SIU's authority to enter
into a union-shop agreement with the Company. On Septem-
ber 15, the Independent filed a petition for an election, sup-
ported by authorization cards signed by' over 600 of the ap-
proximately 800 employees. These cards were apparently
obtained during the time the Company was dealing solely
with Rivera and the Independent Union, while refusing to
deal with the certified SIU.
B. October 31 Strike
On September 30, 1 day before the hearing in the represen-
tation case, the SIU filed a charge (24-CA-2934) against the
Company, alleging that since March 30, the Company had
been dealing illegally with the Independent Union and had
refused to, bargain with the SIU. (A similar charge, in 24-
CA-2935, was filed the following day by the SIU's parent
organization.) Following the October 1 representation hear-
ing, the Independent Union was advised that the representa-
tion case would be held in abeyance during the investigation
of the complaint cases.
On October 30, when Rivera went (with counsel) to the
Regional Office to inquire about the status of the representa-
tion case, he was again advised that the petition was being
held in abeyance pending disposition of the charges. When
asked his position on the two charges against the Company,
he answered, "That I didn't have anything to do with the
charges. They were not against the union that I represent."
(At that time, both of-the charges alleged not only a violation
of Section 8(a)(5) but also a violation of Section 8(a)(2). Al-
though the latter allegation entitled the' Independent Union,
under Sec. 102.8 of the Board's Rules and Regulations, to
become a "party" in the two complaint cases upon its "prop-
erly seeking" to do so, the Independent Union at no time
sought to intervene in either case. On November 12, both
charges were amended to delete the 8(a)(2) allegations. See
Miramar Charterhouse, 144 NLRB 728, 731-733 (1963), in
which the Board in a somewhat similar case found a violation
of Section 8(a)(5) but no violation of Section 8(a)(2).
The next morning , October 31, the Independent Union
called a strike at the Company's plant (across the Island from
the Regional Office). It picketed with signs reading, "We
want elections." and "We don't want violence, we want jus-
tice, we don't want the SIU." The plant entrance was
blocked, and employees were prevented from going to work.
After the plant was closed for over a week, a group of em-
ployees assembled at the Ponce city hall, and went in a cara-
van of automobiles to the plant in an attempt to enter. When
the jeep, in the lead, reached the plant, "they almost turned
around the jeep, they threw stones and they hit us with the
sticks and one of the workers lay in front of the jeep and
another workers closed the gate." One week later, a tempo-
rary restraining order was issued by the Federal district court
in the 10 proceeding. That same evening, Independent Union
President Rivera made a speech over the radio, stating that
it was untrue, as claimed by the SIU, that the strike was over,
and stating that the court order was binding only upon the
Independent Union and its officers, and not upon the in-
dividual employees who were still free to remain away from
work. The strike continued until November 25, when a
broader order was issued by the court.
On November 9, the Regional Director issued an order,
dismissing the September 15 petition. On November 13 (fol-
lowing the amendment of the charges to delete the 8(a)(2)
allegations), an "Amended Order Dismissing Petition" was
issued, stating that whereas the amended charges alleging
8(a)(1) and (5) violations have merit and whereas "a formal
complaint based upon said charges should issue," the Sep-
tember 15 petition was dismissed. Despite these dismissals,
the Independent Union continued the strike,
C. Independent Union's Motivation
The narrow issue in this case concerns the Independent
Union's motivation for the October 31 strike. (It is clear that
on that date, the SIU remained the certified representative of
the employees. Teamsters, Local 901 (Valencia Baxt Express,
Inc.), 137 NLRB 808, 812-813 (1962), enfd. 314 F.2d 792
(C.A. 1); Parks v. Atlanta Printing Pressmen, 243 F.2d 284,
289-290 (C.A. 5), cert. denied 354 U.S. 937 (1957).)
The complaint alleges that after having sought to impede
and prevent the SIU from carrying out its statutory and
contractual obligations as the certified collective-bargaining
agent, Rivera and the Independent Union engaged in the
October 31 strike "with an object of obtaining recognition"
from the Company.
When asked at the trial what was the Independent Union's
reason for striking on October 31, its counsel stated, "Yes, we
struck just because of the delay of the Board, the Board was
just taking its time. It messed around on these charges." (Em-
phasis supplied.) The counsel further stated, as justification
for the strike, that the Board "found the charges were valid"
and "although we were a party we weren't given a chance to
appear to testify, or even talk settlement or do anything
which the Board's own rules give us a right to do." However,
I find that this was clearly an afterthought, because the Re-
gional Director did not find merit to the charges against the
Company until 9 days after the strike began, and did not
approve a Company-SIU settlement of the charges until
November 13, nearly 2 weeks after the strike began.
In its brief to the court in the 10(1) proceeding, the Re-
spondents contended that by striking they were merely seek-
ing an election in November, before the SIU agreement ex-
pired. Nowhere do they explain how striking the Company
could possibly accomplish that purpose. In fact, the Respond-
ents apparently recognized in their brief the inappropriate-
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ness of calling a strike against an employer in order to expe-
dite an election, when arguing, "The strike although perhaps
ill-advised was certainly not illegal." (Emphasis supplied.)
After considering all the evidence, I find that at least an
object of the October 31 strike was to force the Company to
recognize the Independent Union, whether or not the Re-
gional Director directed an election. Earlier in the year, Riv-
era had resorted to a strike against the Company to get back
his own business-agent job with the SIU, and had forced the
Company to deal only with him (and later with the newly
formed Independent Union) by threatening another strike.
Then when the charges (resulting from the Company's sub-
mission to Rivera's demand that the Company deal only with
him) were blocking the election which he and the Independ-
ent Union sought, Rivera again called a strike against the
Company. Being the respondent in the two pending com-
plaint cases, the Company was in no position to agree to an
election, or to encourage the Regional Director to direct an
election. Rivera had been requesting the Company to negoti-
ate a new collective-bargaining agreement with him, and it
was obvious that upon Rivera's calling this second strike, the
Company "could reasonably extricate itself ' only by agreeing
to recognize and bargain for a new contract with the Inde-
pendent Union. International Brotherhood of Teamsters, Lo-
cal 41 (Union Chevrolet Co.), 96 NLRB 957, 962 (1951). This
purpose, of forcing recognition from the Company, was
manifestly confirmed when the Respondents continued to
strike even after the Regional Director dismissed the petition
for an election. I therefore find that the Respondents' October
31 strike, with an object of forcing the Company to recognize
and bargain with the Independent Union when the SIU was
the certified representative, violated Section 8(b)(4)(i) and
(ii)(C) of the Act.
In this and other proceedings, the Respondents argue that
the petition for an election should not have been dismissed;
that they were not given an opportunity to be heard in the
complaint cases against the Company (although, as noted
above, Rivera declined to state a position on those charges,
and the Independent Union did not attempt to intervene in
those cases); and that the SIU-Company settlement of those
cases (approved by the Regional Director on November 13)
and their negotiation of a new agreement were improper.
These arguments ignore the undisputed evidence that the
Company was induced-by threat of strike-to deal solely
with Rivera and the Independent Union, thereby depriving
the employees of representation by the certified SIU for sev-
eral months. However, even if the arguments had merit, they
would be no defense to the allegations in this proceeding.
Upon the foregoing findings of fact, conclusions of law, and
the entire record, and pursuant to Section 10(c) of the Act,
I hereby issue the following recommended.'
ORDER
Respondent, Union de Empleados de la Industria del En-
latado de Pescado y Ramas Anexas de P.R. and its agent,
Domingo Rivera Rosado, its officers, agents, and representa-
tive shall:
1. Cease and desist from engaging in, or inducing any
employee to engage in, a strike or refusal to perform services
at National Packing Company or any other person engaged
in commerce, or threatening, coercing, or restraining the
Company, where an object is to force or require the Company
to recognize or bargain with the Respondent Union as the
collective-bargaining representative of the Company's em-
ployees when the SIU is the certified representative under
Section 9 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act:
(a) Post in conspicuous places in Respondent Union's
offices, meeting halls, and all other places where notices to its
members are customarily posted, copies of the attached no-
tice marked "Appendix."' Copies of the notice, on forms
provided by the Regional Director for Region 24, after being
duly signed by an authorized representative of the Respond-
ent Union and by Respondent Rivera, shall be posted by the
Respondent Union immediately upon receipt thereof, and be
maintained by it for a period of 60 consecutive days there-
after. Reasonable steps shall be taken by the Respondents to
ensure that the notices are not altered, defaced, or covered by
any other material.
(b) Sign and return by mail to the Regional Director, im-
mediately upon receipt from him, copies of the notice for
posting by the Company.
(c) Notify the Regional Director for Region 24, in writing,
within 20 days from the date of the receipt of this Order, what
steps the Respondent has taken to comply herewith.
In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
' In the event that the Board's Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted pursuant to a judgment of the United States Court of Appeals
enforcing an order of the National Labor Relations Board."
CONCLUSIONS OF LAW
By engaging in a strike at the Company's plant, thereby
inducing employees not to perform services and coercing the
Company, with an object of forcing the Company to recog-
nize and bargain with the Independent Union even though
the SIU was the certified bargaining representative of the
employees, the Independent Union and Rivera, its president,
engaged in unfair labor practices affecting commerce within
the meaning of Section 8(b)(4)(i) and (ii)(C) and Section 2(6)
and (7) of the Act.
THE REMEDY
In order to effectuate the policies of the Act, I find it
necessary that the Respondents be ordered to cease and desist
from the unfair labor practices found and to take certain
affirmative action.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found, after a
trial, that we violated Federal law by engaging in a strike at
National Packing Company to force.the Company to recog-
nize and bargain with us, when the SIU was the certified
bargaining representative:
WE WILL NOT strike National Packing Company, or
any other employer, to force it to recognize and bargain
with us, when S.I.U. de Puerto Rico, Seafarers Interna-
tional Union of North America, AFL-CIO, is the cer-
tified bargaining representative of the employees.
UNION DE EMPLEADOS 773
Dated By
UNION DE EMPLEADOS
DE LA INDUSTRIA
DEL ENLATADO
DE PESCADO
Y RAMAS ANEXAS
DE P.R.
(Labor Organization)
(Representative) (Title)
This is an official notice and must not be defaced by any-
one.
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.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, Seventh
Floor Pan Am Building, 255 Ponce de Leon Avenue, Hato
Rey, Puerto Rico 00919, Telephone 809-622-0586.
Dated By
(Representative) (Title)