Union De Empleados

National Labor Relations Board - Board Decisions

Aug 17, 1971

192 N.L.R.B. 700 (N.L.R.B. 1971)

700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union de Empleados de la Industria del Enlatado de
scado y Ramas Anexas° de Puerto Rico, and its
agent, , - Domingo Rivera Rosado and, National
Packing Coinpany.CCase 24-CB-755
August 17, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND KENNEDY
On June 23, 1971, Trial Examiner John M. Dyer
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in certain
unfair labor practices alleged in the complaint and
recommending 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 supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National 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 recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Union De Empleados De La Industria Del Enlatado
De Pescado Y Ramas Anexas De Puerto Rico, and its
agent, Domingo Rivera Rosado, its officers, agents,
and representatives, shall take the action set forth in
the Trial Examiner's recommended Order, as modi-
fied below.'
APPENDIX,
NOTICE, To MEMBERS;
POSTED BY ORDER OF .THE
NATIONAL LABOR RELATIONS, BOARD
An Agency' of the United -States . Government
After a trial in which Respondent f"Union, the
Company, and the General Counsel of the: National
Labor' Relations Board participated and'--offered
evidence, the National Labor Relations Board, has
found that we violated the law and' has ordere&iis to
post this notice and we intend to carryout the'order of
the Board and abide by the following:
WE WILL NOT threaten to inflict-bodily'°harm nor
shall We inflict bodily harm 'upon- -any ' of our
members or any employee of National Packing
Company or any member of their families nor
damage their property because any of our mem-
bers or the employees of National Packing
Company exercise their rights not to join or assist
this Union in strike activities.
WE WILL NOT stop people from entering or
leaving the plant by blocking the gate.
UNION DE EMPLEADOS
DE LA INDusTRIA DEL
ENLATAro DE PESCADo
Y RAMAS ANEXAS DE
PUERTO RICO
(Labor Organization)
Dated By
(Representative) (Title)
Dated By
(Agent)
This is an official notice and must not be defaced by
anyone.
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, 7th Floor, Pan Am Building, 255 Ponce de
Leon Avenue, P.O. Box UU, Hato Rey, Puerto Rico
00919, Telephone 809-622-0586.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN M. DYER, Trial Examiner : National Packing
Company (herein called the Company or Charging Party)
filed the 8(b)(IXA) charge in this matter on January 8,
1971 ,1 alleging that the, Union De Empleados De La
1 Substitute the attached notice for the Trial Examiner's notice as the
last indented paragraph exceeds the scope of the Order.
192 NLRB No. 132
1 Unless otherwise stated all dates herein occurred in 1970.
UNION DE EMPLEADOS
Industria Del Enlatado De Pescado Y Ramas Anexas De
Puerto Rico (herein called Respondent Union or the
Independent) ` and Domingo Rivera Rosado, its agent,
restrained and coerced the Company's employees by
threats of violence and physical acts of violence. On March
5, 1971, the Regional Director issued the complaint herein,
which, inter alia,' alleges that the' Respondent Union and
Domingo Rivera, Rosado threatened employees with
violence if they tried to enter the Company's plant through
the Respondent: Union's picket line, and that, on various
occasions - with the knowledge and support of union agents,
violence,was visited on employees who attempted to enter
the-plant and when employees left the plant. On the basis of
the various violative acts alleged , the complaint concluded
that it was Respondent' Union's position and policy to
prevent employees from entering the plant while its strike
was''in progress and that the threats and acts were visited on
and in the presence of employees with the full knowledge
and approval of Respondent Union's officers and agents.
Respondent's general answer admitted the commerce
and jurisdictional facts and Respondent Union's status but
denied the balance of the complaint . At the hearing it was
stipulated that the officers and members of the' board of
directors named'in the complaint were and are officers and
agents of the Union for whose -acts the Union is
responsible . It was further stipulated that the Respondent
Union, engaged in a strike and picketed the Company's
property on and after October 31, 1970. -
At the hearing held in Ponce, on April 5 and 6,1971, the
General Counsel produced testimony to a number of
incidents which will be described below. The Respondent
produced no controverting testimony to any of' the actions
or statements . The parties agreed to have entered in the
record as an exhibit a transcription of a tape recording of a
radio address by Domingo Rivera Rosado. To the extent
that this transcription differs from testimony given
concerning such radio broadcast, I find the transcription,
more accurate . I find however no basis in the broadcast
speech for any further findings or inferences.
All parties were given the,opportunity to examine and
cross-examine witnesses, to argue orally, and to file briefs.
A letter from counsel for-the Charging Party in the nature,
of a brief was timelyreeceived.
Testimony of the General Counsel's witnesses is uncon-
troverted and I find it worthy of belief. General Counsel's
testimony essentially supports the allegations of violative
acts in the complaint and I will find that the Union and its
agent Domingo , Rivera Rosado by the acts detailed below
violated Section 8(b)(1)(A) of the Act, noting in particular,
Teamsters Local 783, International Brotherhood, of Team-
sters, Chauffeurs, Warehousemen and Helpers of America
(Coca-Cola Bottling Company of Louisville), 160 NLRB
1776. The standard promulgated by the Board therein was
that -a union -was guilty of violating Section 8(bX 1)(A) of the
Act when it knew of the acts of misconduct and violence
which took place; "but took no steps reasonably calculated
effectively to stop such -acts" (emphasis supplied). Under this
standard, on the , evidence before me there is no alternative
but to find that the Union violated the Act as charged.
On the record before me, I make the following:
FINDINGS OF FACr
1. THE BUSINESS OF RESPONDENT AND THE LABOR
ORGANIZATION INVOLVED
701
National Packing Company, a Puerto Rico corporation,
has its plant and office in Playa de Ponce, Puerto Rico,
where it processes and cans tunafish . During the past year
the Company purchased and received tunafish and
materials valued in excess of $50,000 from points outside of
Puerto Rico and sold and shipped over $50,000 of its
products to points outside Puerto Rico.
The parties agree and I find that the Company is engaged
in commerce within the meaning of Section 2(6)'and ('l) of
the Act. -
The parties agree and I find that Respondent Union is a
labor organization within the meaning of Section 2(5) of the
Act.
H. THE UNFAIR LABOR PRACTICES
A. Background and Undisputed Facts
The Company is a subsidiary of Van Camp and processes
and packs tunafish at the Ponce plant where normally 850
people are daily employed in its operation . There is a four-
lane divided highway in front of the plant. A parking lot
adjacent to and on the side of- the plant is enclosed by a
fence., Beyond the fence is a vacant lot and the four-lane
highway curves around the lot in about an 80 -degree turn
There is a crossover strip in the divided highway in front of
the plant but further away from Ponce as far as the
entrance to the parking lot is concerned , so that ,people
leaving the parking lot must turn right and then make a U-
turn to the left on the crossover strip in order to drive back
towards Ponce.
During the period of the strike a- large tent , capable of,
containing 75 to 100 people was set up by Respondent
Union in the vacant lot next to the parking lot some 60 feet
or more distant from the parking lot fence . The tent
contained cooking facilities and the strikers ate there or
stayed near the tent and sometimes slept there . A sidewalk
runs in front of the lot , the parking lot, an4 the plant. The
divided highway'smedian strip is grassy.
As the parties stipulated, at the time of the , strike
Domingo Rivera Rosado was the president of the
Respondent Union, Francisco Alcala was the secretary-
treasurer, and Antima Echevarria , Gladys Pacheco, and
Jose Roman Hernandez were all members of the board of
directors of Respondent Union , and all five are the officials
named in the complaint and for whose actions Respondent
Union is liable.
There has been prior litigation between the , parties
including injunctive proceedings by the Regional office and
an 8(bx4)(iXii)(C) case in which Respondent Union was
held by the Trial Examiner to have violated that section of
the Act. The Board has not yet ruled on this case. A final
injunction was not granted and that case is on appeal to the
U.S. Court of Appeals for the First Circuit.
B. The Violations
1. On October 31, when General Manager Donald
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Baldwin approached the area , of the plant he found
employees milling around outside and not entering the
plant. He saw Francisco Alcala and , knowing him from
prior dealings as a union- official, approached Alcala and
asked what was the problem. Alcala replied that no one was
going through the gate until there was an election. Later
Baldwin approached Alcala stating ,that the entire day's
catch of fish was ready to be cleaned and if it `was not
cleaned it would be, unfit for human consumption and
asked Alcala to allow the people to come in to work. Alcala
replied that no one was goin g to`enter that plant until there
was an election. Baldwin also saw Rivera driving a car to
which a Ioadspeaking system was attached and Antima
Echevarria was speaking over the system.
Employee Sylvia Ortiz testified that when she arrived at
the plant, gate around 6:35 that morning, she heard Antima
Echevarria in the car driven by Rivera, talking to the crowd
of people exhorting them not to go in to work in order to
avoid violence. She also noticed signs in the area which
stated "We want justice," We want elections," "We do not
want the SIU." No one entered the plant that day, except
Baldwin and possibly some other supervisory officials.
2. Gregorio Sanchez, an employee of the Company for
10' years, was outside of an establishment called El
Fanguitoin the Barrio where he lives between 6-and 6:15 in
the evening of November 4, with a group of his friends.
Alcalacame by and called him over and told Sanchez that
if be crossed the picket line, he would be the first toy be
knocked down' and that Alcala would run him over with his
car if Sanchez wenttowork and Alcala'lost his job.'
3. On November 9, some of the employees decided to
see if they 'could `enter the 'plant and gathered near the
townhall,' where they got in several cars and proceeded
toward the plant entrance. Sylvia Ortiz was in a jeep which
was the lead car. As the jeep, approached the' plant it was
ringed by a group'of 75 t6'100strikers. Mrs. Ortiz testified
that there were a lot of employees at the gate who stopped
the jeep and were hitting the jeep with sticks and stones and
rocking the jeep from side to side almost overturning it.
The jeep incident was also -witnessed by Company
General, manager Donald Baldwin and Production Manag-
er Juan de Dios Alverado. Baldwin testified that he saw a
woman lie, down in front of the jeep and saw a crowd of
about' 100 people surrounding the jeep and hitting it with
stinks which were 2 by 2's about 4 feet long.'In the group
around the car he recognized Gladys Pacheco, Antima
Echevarria, and Jose Roman Hernandez. ' -
Alvarado testified that he saw the jeep full of employees
with the strikers surrounding them rocking the jeep from
side to side. He stated there were70to80people surrounding
the jeep and that Gladys Pacheco was using a 2-by 2-inch
stick approximately"4 feet, long to hit the jeep„ These sticks
had picket signs attached to them. He also saw Alcala in the
group surrounding the jeep: Finally the police'dispersed the
striking employees and the jeep left without the employees
coming into the plant.
4.- Pablo 'Torres, a maintenance supervisor with the
Company, was at work on November 19. At about 1 p.m.,
he was standing under, the, roof in the parking lot near the
small gate to the plant, when he saw six individuals running
from the direction of the tent toward the parking lot. As
they ran the individuals picked up stones. He, recognized
three of them as people who had been employed at the
plant. The six individuals threw rocks, some about the size,
of,his fist,, into the parking lot. Several hit a car on the fly,
and others hit on the parking lot area and- bounced into
cars.
5.^ Genera l Manager Baldwin testified that he left the
plant early on November 19 and, after making the U-turn
to proceed back toward Ponce, saw eight or ten piles of
rocks laid out along the highway up as far as the curve.,
Division Production Manager James W. Bellm testified
that shortly before 4 o'clock he was near the parking lot and
saw three or -four strikers leave the area of the tent and
approach the parking lot fence opposite - the small gate,
which leads from the plant,"tothe parking, lot. As the
employees started to come out of the plant to the parking,
lot about 4 p.m. this group of strikers ran back to the tent.
Then as the workers started to get into their cars .and leave
the plant, 100 to 125 strikers left the area of the tent and
proceeded on toward the roadway, and into the median
strip. He observed, as the cars left the parking lot and made
the, V-turn, and started back towards Ponce, that rocks were
being thrown at the cars.
Sylvia Ortiz w as working that afternoon and left in her
husband's car . She testified as they, made the U-turn and
drove back on the road toward Ponce, their car came under
a bait of'rocks. Pablo Torres,- Jesus Ramirex, and Quintin
Lopez also testified as'to the rock barrage as they drove
their cars from the plant with ' Lopez'_ windshield, being
broken by a rock thrown by a striker whom he recognized.
6. After he had let the employees out of his car, Quintin
Lopez drove to Jesus Ramirez' home and discussed with
him going to the police station and reporting the incident
since he recognized the striker who had broken his
windshield. Ramirezzagreed to go with Lopez and they went
to the Molina Street police station. When they got there
Lopez went into the station and filed a complaint, and
Ramirezremained outs_ ide.
Rivera ' and Alcala were in a , group outside the police
station and came over to Ramirez and asked what
happened to Lopez' car. He showed' them the' broken
windshield. Alcala said they should have broken the
windshield and done something worse because Lopez was
an "s.o.b." Rivera asked Ramirez how many people went in
to work and then told, Ramirez how many actually - did.
Rivera said that the war was not over yet, that they had 300
employees throwing rocks that day and tomorrow there'
would be'400.
Ramirez and Lopez testified that there- was a group of
people with Rivera and Alcala whom' they'recognized as;
strikers. When Lopez came ' out of the police station,
Ramirez told him to unlock the,car and get going. The two
got in the car immediately and left. ' Ramirez `testified that
he was nervous in that crowd.
7. On-November 20 General Manager Baldwin and"
Division Production Manager Bellm left the plant prior to
the 'time the employees were to leave and walked out into
the median strip. They testified that there were 80 to 100
strikers in the tent area and that as the employees started to
leave the plant these strikers left the -tent area =and came
down to the road, most of them into, the median strip.
UNION DE EMPLEADOS 703
Policemen were lined up on both sides of the one-way lane
directly in front of the plant and most of the 80 to 100
strikers moved into the median strip. As the cars made the
U-turn and proceeded back towards Ponce both Bellm and
Baldwin saw rocks being thrown from the crowd of strikers
towards the cars containing employees and supervisors.
C. Analysis
From the credited uncontroverted testimony provided by
the General Counsel it is clear that the president and
secretary-treasurer of Respondent Union as well as the
three members of the board of directors named in the
complaint were present and indeed participated in some of
the activities set forth above. Rivera was present and made
statements in incidents one and six; Alcala was present
and/or made statements in incidents one, two, three, and
six; and the members of the board of directors were present
at incident three . Incidents four, five, and seven took place
immediately in front of or to the side of the area established
by Respondent Union as its strike headquarters, with the
participants in a crowd that came from the strike
headquarters. These incidents were clearly visible to those
in charge of the strike and indeed the statements of Rivera
and Alcala in incident six establish that the incidents were
known and were approved of by responsible union officials.
Therefore, applying the Board's test laid down in the
Coca-Cola Bottling case, supra it is clear from the incidents
described above that Respondent Union knew of the
threats and the acts of misconduct and violence which took
place and took no steps reasonably calculated effectively to
stop such. Therefore, I find that Respondent Union and its
agent Domingo Rivera Rosado, in the incidents where he
was involved or for which as a union oficial he bore
responsibility, have, by each of the seven incidents set forth
above, engaged in conduct violative of Section 8(b)(1XA) of
the Act. It is also clear that it was Respondent Union's
policy to attempt to prevent employees from entering the
plant to work and that the incidents described above were
carried out by strikers under the direction and control of
Respondent Union to enforce that policy.
M. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
Respondent Union's commission of the unfair labor
practices set forth in section II, above , violating Section
8(bXIXA) of the Act and occurring in connection with the
Charging Party's business operations described in section I,
above, have a close , intimate , and substantial relationship
to trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
IV. THE REMEDY
Having found that Respondent Union and Respondent
2 In the event no exceptions are filed as provided by Section 102.445 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
Section 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.
Union's agent, Domingo Rivera Rosado, engaged in
conduct violative of the Act, I shall recommend that the
Respondent Union together with its agent cease and desist
from the violative acts found and post a proper notice,
informing all members and employees that Respondent
Union and its agent will not engage in such violative
conduct.
On the basis of the foregoing facts and the entire record I
make the following:
CONCLUSIONS OP LAW
1. National Packing Company is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent Union and its agent, Domingo Rivera
Rosado, by engaging in threats of physical violence and by
engaging in actual violence against and in the presence of
company employees because of the efforts of some
employees to go to work or for going to work during'
Respondent Union's strike, have thereby engaged in unfair
labor practices affecting commerce within the meaning of
Sections 8(b)(1)(A) and 2(6) and (7) of the Act.
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: 2
ORDER
Respondent, Union de Empleados de la Industria del
Enlatado de Pescado y Ramas Anexas de Puerto Rico, and
its agent, Domingo Rivera Rosado, its officers, agents, and
members of the board of directors, shall:
1. Cease and desist from:
(a) Restraining or coercing employees of National
Packing Company of Ponce, Puerto Rico, in the exercise of
their rights guaranteed in Section 7 of the Act, including the
right to refrain from joining or assisting Union de
Empleados de la Industria del Enlatado de Pescado y
Ramas Anexas de Puerto Rico, by threatening or inflicting
bodily harm or damage to any employee or member of his
family or to any employee's property.
(b) Blocking ingress to or egress from the plant either by
blocking the gate or inflicting damage or throwing rocks at
vehicles or employees leaving the Company's premises.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Post at its offices and meeting halls copies of the
attached notice marked "Appendix."3 Copies of said
notice, written in both English and Spanish on forms
provided by the Regional Director for Region 24, after-
being duly signed by Domingo Rivera Rosado, Francisco
Alcala, Antima Echevarria, Gladys Pacheco, and Jose
Roman Hernandez, who as authorized representatives of
Respondent engaged in the violative acts noted above, shall
3 In the event that the Board's Order is enforced by a Judgment of a'
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."
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be posted by Respondent Union immediately upon receipt
thereof, and be maintained by Respondent union for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to its members are customarily
posted. Reasonable steps shall be taken by Respondent
Union to 'insure that said notices are not altered, defaced,
or covered by any other material.
(b) Promptly after receipt of unsigned copies of said
notices, writtm in both English and Spanish, from the
Regional Director, return to him copies signed by the same
five individuals noted above as authorized' representatives
of Respondent for posting at National .Packing Company,
if National Packing Company is willing, at all places where
notices to the, Company's employees are customaril
posted. Proper, steps should be taken to insure , that said-
notices, if posted, are not altered, defaced, or covered by
any other material
No the Regional Director for Region 24, in writing,
within
°
days from the date of the receipt of this Decision,
what steps the Respondent Union has taken to comply
herewith.4
4 In the event that this rmmntended order is adopted by the Board
after exceptions have been filed, this provision shall be mod ed to read:
"Notify the Regional Director for Dion 24, in writing, within 20 days
from the date of this order, what steps the Respondent has taken to
comply herewith:'