Union De Operadores Y Canteros

National Labor Relations Board - Board Decisions

Aug 8, 1977

231 N.L.R.B. 171 (N.L.R.B. 1977)

UNION DE OPERADORES Y CANTEROS
Union de Operadores y Canteros de la Industria del
Cemento de Ponce and Puerto Rican Cement
Company, Inc. Cases 24-CB-930, 24-CB-931,
and 24-CB-932
August 8, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
On June 14, 1976, Administrative Law Judge Max
Rosenberg issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Union de
Operadores y Canteros de la Industria del Cemento
de Ponce, its officers, agents, and representatives,
shall take the action set forth in said recommended
Order.
DECISION
MAx ROSENBERG, Administrative Law Judge: With all
parties represented, this proceeding was heard before me
between August 5 and 9, 1975, in Hato Rey, Puerto Rico,
on an amended complaint filed by the General Counsel of
the National Labor Relations Board and an answer filed in
opposition thereto by Union de Operadores y Canteros de
la Industria del Cemento De Ponce, herein called Respon-
dent or the Union.' At issue is whether Respondent
violated Section 8(b)(I)(A) of the National Labor Rela-
tions Act, as amended, by certain conduct to be detailed
hereinafter. Briefs have been received from the Charging
Party and Respondent and have been duly considered.
Upon the entire record made in this proceeding,
including my observation of the demeanor of the witnesses
as they testified on the stand, I hereby make the following:
I The complaint, which issued on June 11, 1975, is based upon charges
filed on April 15, 1975, and served on April 16. 1975.
2 Unless otherwise indicated, all dates herein fall in 1975.
:l The Union's president, Efrain Fernandez, testified that he has solicited
231 NLRB No. 35
FINDINGS OF FACT AND CONCLUSIONS
I. THE BUSINESS OF THE EMPLOYER
Puerto Rican Cement Company, Inc., herein called the
Employer, is a corporation duly organized under the laws
of the Commonwealth of Puerto Rico. During the times
material herein, the Employer has maintained an office and
place of business in Hato Rey, City of San Juan,
Commomwealth of Puerto Rico, as well as two plants
located in Catano and Ponce, Commonwealth of Puerto
Rico, where it is engaged in the manufacture, sale, and
distribution of cement and related products. During the
past calendar year, the Employer purchased and caused to
be transported and delivered to its plants goods and
materials valued in excess of $50,000, which items were
transported and delivered to its plants in interstate
commerce directly from States of the United States other
than the Commonwealth of Puerto Rico in which they are
located. In the same period, the Employer manufactured,
sold, and distributed from its plants, products valued in
excess of $50,000, of which products valued in excess of
$50,000 were shipped from said plants in interstate
commerce directly to States of the United States other than
the Commonwealth of Puerto Rico in which they are
located. The complaint alleges, the answer admits, and I
find that the Employer is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
I find that Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The amended complaint alleges that, commencing on
January 31, 1975,2 Respondent, by and through its agents,
violated Section 8(b)(IXA) of the Statute by a variety of
acts of violence and intimidation. Respondent denies the
commission of any labor practices proscribed by the Act.
As a preface to the consideration of the evidence and the
law which controls the outcome of this litigation, I would
note that my role in this proceeding is solely and simply to
determine whether any or all acts and conduct of the
Union, as alleged in the General Counsel's complaint,
constitute violations of the National Labor Relations Act,
as amended. As far as I am concerned, it matters not to me
that the president of the Employer, a former Governor of
the Island, espouses a political theme at variance with that
of the Puerto Rican Socialist Party, an insular political
organization which has supported the Union's cause in the
labor dispute which has triggered this litigation.3 The
political aspects of this case should be fought in another
arena, and not before me. With this observation, I turn to a
consideration of the merits of the Government's case.
It is undisputed and I find that the Employer and
Respondent were parties to a collective-bargaining agree-
the support of vanous organizations dunng the strike against the Employer,
the details of which will be chronicled hereinafter, and that Man Bras,
president of this political party, came to his aid.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment covering 474 production and maintenance employees
at the Employer's Ponce plant which was effective from
January 1, 1972, until December 31, 1974. This agreement
contained a clause which provided that the compact was to
remain in force and effect after December 31, 1974, while a
new contract was being negotiated, unless and until either
party notified the other in writing of its intention to
terminate. At 2 p.m. on January 31, Efrain Fernandez,
Respondent's president, appeared at the facility's personnel
office and delivered a letter which stated that the extended
contract had been terminated on that day by the Union. At
4 p.m. on January 31, picketing began at the entrance to
the Ponce plant, and the incidents giving rise to this
proceeding commenced to transpire.
A. Blockage of Plant Entrances and Exits
The complaint charges that, on January 31, and April 3,
4, and 7, Respondent, through its agents Gilberto Quin-
ones, William Febles, Edwin Torres, Anastacio Burgos,
and other striking employees under its direction and
control, and by other persons acting on its behalf,
attempted to block and did block entrances to and exits
from the Ponce plant, and attempted to prevent and did
prevent employees of the Employer as well as employees of
suppliers, in the presence of employees, from entering and
leaving said plant and premises, with an object to induce
these employees not to cross the picket line which
Respondent had established at the gates of the Ponce
installation on January 31.
Juan Maldonado, the Employer's personnel manager,
testified that, after Respondent's President Efrain Fernan-
dez visited the personnel office at 2 p.m. on January 31 to
terminate the existing collective-bargaining agreement
between the parties, he observed Fernandez at 4 p.m. on
the picket line in the company of approximately 300
striking employees. Using a megaphone, the union presi-
dent instructed the strikers "that they were not to enter to
work and that no vehicle was to enter the plant. And above
all, the trucks that were carting cement to the boats or the
ships." Fernandez also told the strikers that "not a sack of
cement would come out." From 7 p.m. to 10 p.m.,
Maldonado stationed himself at the main plant gate,
during which period he watched certain company vehicles
driven by supervisors attempt to depart the plant premises.
The pickets blocked the egress, whereupon the local police
intervened to allow the trucks to leave. During this
incident, Maldonado noticed that Ricardo Villoch, admit-
tedly an agent of Respondent and one of its delegates at
the plant, was among the strikers who blocked the plant
entrance. Santiago Alvarez, a quality control engineer,
testified that, at 8:30 p.m. on January 31, he attempted to
drive his station wagon through the plant gate with two
employee riders but was thwarted from doing so by massed
pickets. At this juncture, a beer can was thrown at his
vehicle which struck a glass area on the right side. Jose F.
Figueroa, an inventory control engineer, testified without
contradiction and I find that, at 10 p.m. on January 31, he,
too, was stopped at the gate by pickets. Gilberto Quinones,
a member of the Union's board of directors and an
admitted agent of Respondent, approached the driver's
side of Figueroa's automobile and, pounding his fist on the
door, exclaimed that "You will go out now to your home
but you will not come in in the morning." As the strikers
angrily shouted "maceta" which has a translation in
Spanish as "a club" and which Figueroa construed as a
threat to his physical well being, the police appeared and
cleared the way for his exit. Figueroa turned into an
adjacent road, at which point he heard an object strike his
car which left a 1/2-inch dent in a fender.
Maldonado further testified that, early in the morning on
April 3, he and other supervisors and employees drove to
work. As they approached the plant entrance in an auto
caravan of 18 vehicles, the pickets massed in front of the
gate to prevent the supervisors and nonstriking employees
from entering, and threw rocks at the vehicles which
shattered windshields and panes. Production Supervisor
Juan Angel Valle testified that he drove two nonstriking
employees to work on the same morning in the caravan. As
he proceeded to the gate, the window pane on the right
front door was shattered. A group of strikers were
assembled on the right side of his car. When Valle left the
plant in the afternoon, his automobile was again hit with
an unidentified object and, again, this occurred in front of
the strikers.
Maldonado testified that, at 2:50 a.m. on April 7, four or
five cement trucks operated by employees of independent
contractors approached the plant gate and attempted to
enter. In the presence of union officials, the trucks were
halted by drums placed on the road by the strikers, who
thereupon threw rocks, chairs, and other objects at the
gates.
Efrain Fernandez, the Union's president, testified that, at
1:30 p.m. on January 31, he called a meeting of his board
of directors to announce that a strike had been pro-
grammed to commence at 4 p.m. that afternoon. When the
strike began, Fernandez mounted an automobile roof and
addressed 400 strikers over a megaphone. While Fernandez
testimonially asserted that the pickets did not prevent
vehicles from either entering or leaving the plant on that
date, he failed to controvert Maldonado's testimony that,
when he spoke to the strikers over the megaphone, he
instructed them that "they were not to enter to work and
that no vehicle was to enter the plant" and that "not a sack
of cement would come out." Although Fernandez admitted
that he was on the picket line at 7 a.m. on April 3, he
denied that he was present at 3 a.m. when the supervisor
employee motorcade was bombarded by missiles which
broke windshields and windows. However, Fernandez
confessed that either a union official or a union delegate
was present and in charge of the picket line at all times and
he failed to deny his presence at the picket line on April 7
when the trucks of suppliers were hindered from entering
the plant gates by the placement of metallic drums in the
driveway or by the rocks and chairs which were thrown at
the vehicles. In his testimony, the union president stated
that he viewed anyone who crossed the picket line as
"traitors" to the Union's cause.
William Febles, a member of Respondent's board of
directors, testified that he was present on the picket line on
January 31, and April 3 and 7. He claimed that at no time
did he observe any mass picketing, rock throwing, or other
misconduct on the part of the strikers on those dates.
172
UNION DE OPERADORES Y CANTEROS
However, Febles admitted that he was in possession of
several metal drums at the picket line on April 7.
Neither Fernandez, Febles, nor the other witnesses which
Respondent summoned to the stand to testify regarding
these episodes impressed me with their demeanor or
candor. I therefore credit the testimony of Maldonado,
Alvarez, Figueroa, and Valle, and find that, on January 31,
President Fernandez addressed the assembled strikers
outside the plant gates at 4 p.m. and urged them to prevent
any vehicular movement either into or out of the facility-
"not [to allow] a sack of cement [to] come out." In
consequence of this instruction, and in the presence of
Union Delegate Ricardo Villoch, the strikers blocked
egress from the plant until they were ordered by police to
remove themselves to a nearby entrance road. I further find
that, on the evening of January 31, and in the presence of
either Villoch or Union Board of Directors' member
Gilberto Quinones, or both, strikers prevented Engineer
Alvarez from leaving the installation that night and threw a
beer can at his automobile which struck the glass on the
right side of the vehicle. A short time later, as engineer
Figueroa attempted to leave the plant, Union Agent
Quinones approached the former's car and, pounding his
fist on the driver's door, shouted "You will go out now to
your home but you will not come in in the morning," while
the surrounding strikers yelled "maceta" which Figueroa
interpreted as a threat to club him physically.
I find that, on the morning of April 3, the strikers, in the
presence and under the direction and control of the
Union's agents, pelted the automobiles of supervisors and
nonstriking employees with rocks and other objects as they
attempted to enter the plant which shattered windshields
and other panes. I also find that, on April 7, the strikers,
under the aegis of union officials, sought to prevent the
entry of trucks of the Employer's suppliers into the plant
by placing metal drums on the driveway and stoning and
otherwise bombarding the vehicles.
Accordingly, by the foregoing conduct, I find and
conclude that Respondent violated Section 8(b)(l)(A) of
the Act.
B. Intimidation of Nonstrikers
The complaint alleges that during the month of February
Respondent through striking employees under its direction
and control and by other persons acting on its behalf,
picketed the Employer's premises with shovels, sticks,
rakes, and other equipment susceptible of being used as a
weapon, with an object of inducing the nonstriking
employees not to cross the picket lines. The evidence is
quite clear that, during the times in question, several
pickets paraded on a company road near the plant gates
carrying shovels, heavy street brooms, and large pieces of
timber that best could be characterized as clubs. In his
testimony, Union President Fernandez conceded that,
during the month of February, the pickets shouldered these
items as they walked the line. When queried as to the
reason for the strikers' bearing these tools, which hardly
qualify as traditional props for picket line activities,
Fernandez' response was too ludicrous to warrant credible
acceptance. Fernandez related that, a few weeks after the
strike started, "Different union members asked the compa-
ny that they let us have garbage cans and shovels and
brooms to sweep the area, and that was kept on the picket
line so that we could maintain that area clean. Then, when
we called the members out to picket, each one would pick
up what he had to carry, be it a sign, a shovel, a broom,
and carry it." Fernandez also admitted that, during the
period in which these items were carried by the strikers,
employees and supervisors entered and left the plant.
Fernandez further testified in explanation of the presence
of the tools, that it was customary for the Employer to
wash and clean the access road, because suppliers' trucks
would spill lime, rocks, dust, and other garbage on the
street. However, the legitimacy of the strikers' mission to
cleanse the roadway is belied by Fernandez' own confes-
sion that, inasmuch as the strike had closed the plant to
trucks from January 31 until it reopened in April, no trucks
had in fact travelled the route during the month of
February, and hence it would have been unnecessary to
clean the thoroughfare. Moreover, I deem his testimony
incredible that, while the Union and the Employer were
locked in dire economic battle, the latter would have
handed over these potential weapons to its adversary for
the duration of the strike.
In short, I find that the strikers, under the direction and
control of the Union, picketed the Employer's plants with
shovels, heavy brooms, and clubs, not with a purpose of
sanitation in mind, but with a design to intimidate the
nonstriking employees and supervisors from crossing the
established picket line. By so doing, I conclude that
Respondent ran afoul of Section 8(b)(1)(A) of the Statute.
C. Home Visitation Threats
The complaint alleges that, in the course of home visits
by members of Respondent's home visits' committee on
February 1, 2, and 3, and April 5, and on various other
dates during February, March, and April, Respondent
threatened the employees thus visited with loss of benefits
and/or with harm to the members of their families, with an
object of inducing said employees to support and assist
Respondent and/or not to cross the picket line at the
Ponce plant.
Eleuterio Acosta, who had been employed as a mechanic
at the Ponce plant prior to the work stoppage, left his job
when the strike commenced at 4 p.m. on January 31. He
testified without contradiction and I find that, between 9
a.m. and 10 a.m. on the morning of February 1, while he
and his family were performing gardening chores on his
lawn, an automobile containing five men, including Union
Delegate Pedro Torres and Home Visits' Committeeman
Damaso Droz, drove up to his driveway. When the visitors
emerged from the car, they sat down and asked Acosta why
he had not reported for duty on the picket line. Acosta
replied that he had paid a picket to substitute for him
because he intended to travel to Mayaquez that day to
obtain his Social Security forms and that he "was not a
monkey." The Union's spokesman then retorted that any
benefits which the Union might win from the Employer as
a result of the strike would not be afforded to Acosta
because of his failure to join the picket line.
In his testimony, Droz acknowledged that he, Pedro
Torres, and three other strikers visited Acosta's home on
173
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the morning of February I because they believed that he
was ill. When Droz and his companions learned that
Acosta was about to embark upon a trip to Mayaquez, the
men drove away. However, neither Droz nor Torres denied
Acosta's testimony that they had threatened to withhold
the fruits of their strike action from Acosta because he had
defected from the ranks of the picketers.
On the basis of Acosta's undenied testimony, I conclude
that Respondent violated Section 8(b)(1)(A) of the Act by
threats of economic deprivation directed to Acosta on
February I due to his absence from the picket line.
Rafael Velez, a mechanic's helper at the Employer's
plant in Ponce, joined the strike on the afternoon of
January 31 and performed picket duties for 2 weeks
thereafter. At 3 p.m. on April 5, Velez received a home visit
from Jose Ledey, Jose Rodriquez, Alcides Rosario, and
Jorge Rosado, all members of Respondent's home visits'
committee. The visitors announced that the Employer had
managed to break the Union's strike, and inquired as to
why Velez had shirked his picket duties. Velez replied that
he remained away from the picket line because he did not
want "trouble." In the presence of Velez' wife and children,
Rosario exclaimed that "as long as [Velez] didn't go to the
picket line there would be no problems, that nothing could
happen to me if I passed through the gates of Puerto Rican
Cement because I was well insured and they thought well
of me, but somebody who had nothing to do with them
could do something to my family." The visit ended with
Velez informing the committee that he had no intention of
crossing the picket line.
Alcides Rosario admitted on the stand that he had
visited the home of Velez with other home visits' commit-
teemen in order to determine why Velez had failed to
participate in picket line activities. Velez replied that he
was working for a relative, to which Rosario remarked that
"we were glad that he was able to do something to help
himself along economically." Velez promised that he would
try to visit the picket line. At this juncture, Velez' wife
broke in and commented that the reason for her husband's
absence from the picketing area was due to his timidity.
Despite the fact that Velez was gainfully employed,
Rosario gave the curious testimony that he had offered to
certify Velez' eligibility to receive food stamps. When
asked whether he had given Velez the friendly advice that
Velez' family would be harmed if Velez did not join the
picket line, Rosario responded, "No, I did not think it
necessary." 4
Rosario did not convince me that he possessed the
requisite amount of candor to warrant accrediting his
testimony and I do not. I therefore find, based upon Velez'
credited utterances, that, on the afternoon of April 5, he
received a house call from four members of Respondent's
home visits' committee and was told that his family would
be harmed if he continued to abandon Respondent's strike.
I conclude that, by this conduct, Respondent violated
Section 8(b)(1)(A) of the Act.
I As indicated elsewhere in this Decision, Velez' home was firebombed
on Ihe evening of April 26 while he swas at work and his lfamil) was asleep.
D. Physical Assault Upon Nonstriking Employee
Conrado Colon
The complaint alleges that, on April 28, nonstriker
Conrado Colon was physically assaulted and injured on a
road in Ponce by Ramon Martinez, a member of
Respondent's board of directors.
Colon testified that, on the morning of April 28, a plant
security guard escorted him to his father-in-law's home in
search of Colon's wife. Not finding her there, Colon
proceeded on foot down the highway where he met
Director Martinez who was sitting in his car. Martinez
inquired whether Colon was working, and the latter falsely
replied in the negative. Colon decided to retreat to his
father-in-law's house, at which point Martinez got out of
his car and followed him. When Colon reached a clump of
bushes, he was confronted by Martinez. Calling Colon,
who was 5 feet tall and weighed 165 pounds, a "strike-
breaker" and "cuckold," Martinez, who towered over
Colon and weighed 200 pounds, proceeded to administer a
beating to Colon because the latter had crossed the picket
line. The foregoing testimony of Conrado Colon is
uncontroverted and I find the facts as he testimonially
reported them.
Accordingly, I conclude that Respondent violated
Section 8(b)(1)(A) of the Act by Martinez' physical assault
upon Conrado Colon on April 28.
E. Threat of Bodily Injury to Nonstriker Jose
Antonio Colon
The General Counsel asserts that, on May 5, Union
President Efrain Fernandez and Delegate William Febles
threatened Jose Antonio Colon with physical harm in order
to induce him not to cross the picket line at the Employer's
Ponce plant.
Jose Colon testified that, at 9 p.m. on the evening of May
5, he was walking down a street in Ponce on his way to his
father's home when he passed a van in which Efrain
Fernandez and William Febles were seated. After greeting
the two union officials, Colon continued to walk down the
street. The officials then drove the van to the end of the
block where they waited for Colon to arrive. As he
approached the vehicle, Febles remarked that Fernandez
wished to speak to him. The union president spoke up and
inquired why Colon had failed to respect the picket line.
Colon answered that he was in dire financial straits, that
his wife was pregnant and needed maternity clothes and
hospitalization, that his mother was ill, and that he was
short of the vital necessities of life. Febles broke in and
stated that both he and Fernandez knew that Colon was
working at the plant, and the latter admitted this happen-
stance. At this juncture, and in Colon's words, Fernandez
"got up and with a very great expression upon his face he
told me, the only thing I can tell you as a fellow employee,
the only thing I can tell you is that the next time that we
meet you'd better be armed because I am going to shoot at
you. And he repeated it to me three times." Febles retorted
that "if he [Febles] lost the house which I believe he had
invested $8,000 and he lost his wagon, that he was going to
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UNION DE OPERADORES Y CANTEROS
take it out on each and every one of the employees that was
inside to get even."
Efrain Fernandez recounted that, on the evening in
question, he attended a strike meeting with leaders of other
labor organizations which lasted from 7:30 p.m. to 11 p.m.,
and therefore denied that he had in any way threatened
Jose Colon that night.5 He did admit, however, that Febles
was not at this assembly and did not account for the
delegate's whereabouts. William Febles testified that, on
the night in question, he served as a picket captain from 6
p.m. until 6 a.m. the following morning, and denied that he
had threatened Colon that night.
As heretofore indicated, neither Fernandez nor Febles
impressed me as trustworthy witnesses, and I do not credit
their testimony where it collides with that of Jose Colon. I
therefore find that, on the evening of May 5, Fernandez
and Febles threatened Colon with physical violence for
refusing to support the Union in its strike against the
Employer. I conclude that, by the foregoing conduct,
Respondent violated Section 8(bX)()(A) of the Act.
F. Physical Assault Upon Nonstriking Employee
Mario Santiago
The General Counsel contends that, on May 15,
Respondent, by its agents Ricardo Villoch, Carlos Arroyo,
and others, physically assaulted and inflicted bodily injury
upon a nonstriking employee near the Ponce plant with an
object of inducing said employee not to cross the picket
line at that facility.
Mario Santiago testified that, on May 15, he left the
plant in the company of Supervisors Eriberto Jiminez and
Jerry Garcia and visited a local restaurant for lunch. About
20 minutes after they arrived, nine strikers, including
Union Delegate Ricardo Villoch, entered the premises.
Upon spying Santiago and the supervisors, striker Carlos
Arroyo commented to his colleagues "what a wretched
group of people we have here," an obvious reference to the
nonstrikers. Thereupon, the strikers proceeded to call
Santiago a "wretch," "poor devil," "cuckold," and "strike-
breaker." Santiago paid his bill and left the restaurant.
Villoch and his friends followed Santiago down the
highway and surrounded him. While one of the strikers
grabbed Santiago and put an arm-lock around his neck,
another slugged him in the eye and hand causing a large
welt to appear under the eye and a laceration on the hand.
Santiago quickly jumped into the supervisors' car and
returned to the plant.
Striker Carlos Arroyo and Union Delegate Ricardo
Villoch steadfastly maintained on the stand that it was
Santiago who was the aggressor in the episode which
occurred at the restaurant on May 15. According to them,
they and about eight fellow strikers entered the eatery that
noon to buy some drinks, and Villoch noticed Santiago's
presence. Villoch journeyed over to Santiago's table and
questioned the latter's refusal to join in common cause with
the strikers. Villoch testified that he observed one of the
supervisors slip a knife into Santiago's hand, whereupon he
I Fernandez acknowledged that he knew Jose Colon because he had
observed the latter on the picket line before Colon abandoned the strike.
h While no apparent allegation appears in the complaint regarding the
issue. the General Counsel adduced testimony from Julio Leon, a
sounded the alarm and the strikers left the restaurant.
Santiago followed after them with knife in hand, and cut
the finger of one of the men who sought to take the weapon
away from him. The strikers returned to the plant where
they filed assault charges with the police against their
alleged assailant. A few days later, the case was heard in
court. Despite the fact that Arroyo and Villoch testimonial-
ly claimed before me that Santiago had attacked one of
their number with a knife, and failed to mention any
injuries sustained by Santiago during the scuffle, Villoch
reported on the stand that "when we went to court, we
were the ones that were charged" and the charges against
Santiago were dropped. Pressed further on the matter,
Villoch admitted that his group was charged with "assault
and battery" against Santiago.
Accordingly, I credit the testimony of Santiago and find
that, on May 15, he was physically assaulted by strikers in
the presence of Union Delegate Ricardo Villoch because
he refused to join and support the Union in its work
stoppage, and to coerce him into honoring the picket line.
By this conduct, I conclude that Respondent violated
Section 8(b)(1)(XA) of the Act.
At the hearing, the General Counsel amended the
complaint to add three allegations. These averments
recited that, on two occasions on May 26, nonstriking
employees were physically assaulted and their vehicles
were stoned by strikers. On May 29, nonstriking employees
were threatened with bodily or property injury by a striker.
With respect to the May 29 incident, Carmelo Cubille
testified that he was at the plant that day working as a
laborer. At 5 p.m., he left the premises with a fellow
employee to return to his home. As they drove to the gate,
they were accosted by striker Jose Luis Rodriquez. In
earshot of Cubille, Rodriquez addressed Cubille's compan-
ion and stated that "we should not work any more because
if not then they were going to jump us and give us a beating
and burn our homes." Rodriquez left the scene momentari-
ly and returned with a hand hidden behind his back.
Believing that the striker possessed a concealed weapon,
Cubille drove off with his companion.
In light of Union President Fernandez' testimony that a
union agent was present and in charge of the picket line at
all times, I have no difficulty in finding that, by Rodriquez'
threat to Cubille and another employee on May 29,
Respondent violated Section 8(bX)( I XA) of the Act. How-
ever, the episodes which occurred on May 26 present a
different question of union culpability. In each case, the
incidents occurred far from the picket line, and the culprits
were strikers who held no office in the Union. Moreover, in
each case, the General Counsel failed to establish by
preponderant evidence that the Union has either instigat-
ed, encouraged, adopted, or condoned the acts of savagery
which were visited upon the unfortunate victims. Absent
such proof, which is statutorily demanded, I am reluctantly
constrained to dismiss these allegations from the com-
plaint.6
nonstriker, that, on April 8, he was at home when a plant supervisor and two
security guards visited him to inquire whether he desired to return to work,
Leon agreed to do so, but he informed the supervisor that his automobile
was in need of repair. The supervisor agreed to meet Leon at a service
(Continued)
175
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
G. Possession of Explosive Devices and the
Bombings
Finally, the complaint alleges that, on April 7, Respon-
dent "maintained explosive devices in a panel truck under
its control by the picket line, the discovery of which
explosive devices by the State Police, and the subsequent
discovery of explosives and timing devices in the private
vehicle and home of a striking employee and Union
member, the attendant publicity in the local newspapers,
plus the explosion of bombs at the homes of some of the
Employer's nonstriking employees, had the effect of
coercing Employer's employees in the exercise of rights
guaranteed in Section 7 of the Act."
The evidence relating to this allegation is not in essential
dispute, and I find the facts to be as follows.
Captain Teodoro Rovira, the commandant of the Ponce
police, testified that, at 6 a.m. on April 7, he and
approximately 30 policemen under his command were
routinely patrolling the highway adjacent to the plant when
he learned from an informant that a van belonging to the
Union was parked nearby. The informant confided that he
had seen approximately 200 pounds of rocks hidden in the
vicinity of the pickets which could be used to injure the
nonstrikers and police. Rovira rounded up a police detail
to search the area, and found the cache of rocks. During
the search, the commandant discovered a number of pieces
of pipe and sticks near the van. Upon a closer scrutiny,
Rovira found some glass bottles and a plastic gallon jug
containing gasoline which were located near the platform
of a trailer parked in the vicinity. Rovira and his men
retrieved these articles and placed them in a police car. At
this juncture, Rovira received the intelligence that the
Union's vehicle, which was stationed nearby, and which
had been utilized by Union President Fernandez and his
fellow union officials to prepare food for the strikers and to
pay them for picket duty during the strike, housed
Molotov-cocktail bombs. The captain located Fernandez,
and requested that he unlock the vehicle for a search.
Fernandez complied with Rovira's directive.
Upon entering the van, Rovira discovered two Molotov
firebombs. On further investigation, he found two more
such bombs outside the van in the picketing area.
Following standard police procedures, the commandant
transported the incendiaries to police headquarters. 7
Subsequently, this evidence was turned over to the
Criminal Investigation Corps of the Police Department of
Puerto Rico for further analysis and investigation. Concur-
rently, Rovira summoned a police wrecker and the van was
towed to police headquarters.
Rounding out Rovira's testimony, he recounted that an
arrest warrant was issued against Fernandez because of the
discovery of volatile substances in the van and the
contiguous area, and the case was referred to the local
district attorney for prosecution. At the trial of Fernandez,
station and drive him to the plant. Leon proceeded to a garage followed by
the supervisor. When they arrived, a Volkswagen containing strikers
Wilfredo Mercade, Pedro Colon, and Raul Colon, pulled up. One of the
strikers shouted, "Hey, Julio. you are going to break strike. You are going in
the plant to work." When Leon failed to respond to this taunt, one of the
strikers threw a rock at the supervisor's vehicle, and he immediately drove
off. Leon thereupon drove back home. Here, again, the General Counsel has
the court found no probable cause for subjecting Fernan-
dez to further legal proceedings because the owner of the
van testified that he had loaned the vehicle to the Union
rather than to an identifiable union official for use during
the strike.
When called to the stand, Union President Fernandez
substantially corroborated the testimony of Rovira as to
the events which transpired on the morning of April 7. It is
undisputed and I find that, as a result of Fernandez' arrest
and arraignment, it became common knowledge in the city
of Ponce and its environs that a van, loaned to the Union
to dispense food and picket pay, was found by the police to
contain explosive devices, and that the nonstrikers quickly
became aware of this happenstance. I find that, upon
learning that the Union possessed these destructive
artifacts in and around the picket line, the nonstriking
employees had reason to believe that they would be the
target of violence visited upon them by adherents of that
labor organization if they persisted in crossing the picket
line and refusing to support the Union in its strike against
the Employer. I therefore conclude that, by this conduct,
Respondent violated Section 8(bX I)(A) of the Act.
This area of the complaint also encompasses the
allegation that the firebombing of the homes of Rafael
Velez, Pasqual Santiago, and Julio Leon in April, and the
eremite bombing of the Seafarers' International Union's
headquarters in Ponce, was offensive to the provisions of
Section 8(bX 1)(A) of the Act.
Velez testified without contradiction and I find that on
the morning of April 26 at approximately 4 a.m. he
returned from work at the plant to find his wife and
children, in the company of the local police, assessing the
damage to his living room and porch caused by a Molotov
cocktail. By good fortune, Velez' spouse and five children
were asleep in an adjacent bedroom, and suffered no
injury.
Pasqual Santiago's testimony is also undenied and I find
that, at 8 p.m. on April 10, he returned from his job at the
Ponce plant and retired to bed with his wife and two
children. At 1 a.m. on the following morning, he was
awakened by the explosion of two firebombs which
demolished a side of his home. The police arrived and
found two wicks at the scene which are the normal fuses for
Molotov cocktails. As a result of this trauma, Santiago's
wife was placed under the care of a psychiatrist. A few
weeks later, he removed his family to his in-laws' house and
remained at his abode to protect the edifice. Then, on
Sunday evening, a firebomb destroyed his porch. Finally,
at the end of April, while Santiago was visiting his wife and
children at her parents' home, he received notification that
his casa had been burned to the ground.
Julio Leon testified that, after the encounter reported
marginally above with strikers Wilfredo Mercado, Pedro
Colon, and Raul Colon on April 8, he returned to his home
rather than report to work at the behest of his supervisor.
failed preponderantly to establish by proof that the Union fostered, was
aware of, or condoned this serious misconduct by these strikers. Insofar as
the complaint might be construed as encompassing this assault as a violation
of the Act, I shall dismiss any allegation relevant thereto from the pleadings.
I These devices, in Rovira's words, consisted of "a glass receptacle with
inflammable liquid with a wick which is lit and which is thrown. And as the
glass breaks the flames spread which have already been ignited."
176
UNION DE OPERADORES Y CANTEROS
About 1 a.m. on April 9, while he was asleep, a Molotov
cocktail exploded on his porch which caused substantial
damage. Leon summoned the police and firemen, and the
Criminal Investigation Corps undertook an investigation of
the cause of the blast.
On another occasion during the course of Respondent's
strike against the Employer, the offices of the Seafarers'
International Union (SIU) were torn by eremite or plastic
bombs,8 and two such explosives were found inside the
plant in late June.
Each of the bombing incidents chronicled above were
the subject of an intensive investigation by the local police
and the Criminal Investigation Corps of the Common-
wealth of Puerto Rico. Notwithstanding their diligent
search for the perpetrators of these explosive incidents, no
suspects, so far as this record stands, were either found,
arrested, tried, or convicted.
In the complaint, the General Counsel urges that I find
that Respondent intruded upon the rights of nonstrikers
protected by the Act, when, in violation of Section
8(b)(1)(A) of the legislation, it exploded incendiary and
other bombs at the homes of nonstrikers and elsewhere.
While the suspicion lurks that the Union, or its allies, with
easy access to the tools of explosive violence, as evidenced
by the van incident of April 7, and the Union's proclivity
for physical violence during the strike, may have been the
real miscreants in triggering these episodes, under our
system of justice, suspicion alone cannot prevail over
preponderant proof that, in unalterable fact, the Union was
the wrongdoer. In sum, I will dismiss the allegations of the
complaint which charge that Respondent violated Section
8(b)(1)(A) of the Act by exploding a variety of bombs at
the homes of nonstrikers, as well as in other areas, because
Union accountability has not been evidentially demon-
strated.
However, in doing so, I would make this very clear and
emphatic observation. In his 13 years on the bench, this
Judge has presided over many trials, both in Puerto Rico
and on the Mainland, in which, during the course of a
prolonged economic strike, the adversaries became locked
in deadly embrace. Because of the height of emotions,
violence, regrettably, found its way into the labor arena
among the immediate participants. But, in this case, it is not
a man, but a coward, who by stealth, and under the cover
of night, firebombs and terrorizes a home where only
sleeping women and children, unconnected with the
immediate strife, repose. Whoever firebombed the home of
Rafael Velez on the morning of April 26, or the house of
Pasqual Santiago on April 10, and twice thereafter,
reducing it to ruins and causing Santiago's wife to suffer a
nervous breakdown, or the home of Julio Leon, can hardly
be characterized as a proud hero in the cause. To this paper
warrior, who has run from the battlefield and crept into the
bushes of darkness to destroy innocents, his only reward
can be shame.
8 Following the commencement of Respondent's strike against the
Employer on January 31, the SIU filed a representation petition with the
Board seeking an election to oust Respondent as the collective-bargaining
representative of the unit employees at the Ponce plant.
" In the event no exceptions are filed as provided by Sec. 102.46 of the
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the Employer's
operations described in section 1, 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 thereof.
V. THE REMEDY
Having found that Respondent has violated and is
violating Section 8(bXIXA) of the Act, I shall order that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
I. Puerto Rican Cement Company, Inc., is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. By blocking ingress and egress to the plant through
mass picketing and by placing or throwing objects in the
driveways; by engaging in acts of violence against both the
body and property of nonstriking employees; by intimidat-
ing nonstrikers at the picket line; by threatening said
employees with both physical and property injury during
home visitations; and by possessing, maintaining, and
storing any explosive devices or other weapons at or near
the premises of the Ponce plant, Respondent has engaged
in and is engaging in unfair labor practices outlawed by
Section 8(b)( IXA) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
Upon the foregoing findings of fact and conclusions of
law and the entire record, and pursuant to Section 10(c) of
the National Labor Relations Act, as amended, I hereby
issue the following recommended:
ORDER9
Respondent Union de Operadores y Canteros de la
Industria del Cemento de Ponce, its officers, agents, and
representatives, shall:
I. Cease and desist from:
(a) Blocking ingress and egress of nonstriking employees,
supervisors, and employees of suppliers, to the plant
through mass picketing and by placing or throwing objects
in the driveways.
(b) Engaging in acts of violence against both the body
and property of nonstriking employees because they
crossed the picket line.
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.
7In
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Intimidating nonstriking employees at the picket line
to prevent them from crossing said line.
(d) Threatening nonstriking employees with both physi-
cal and property injury during home visitations if they
failed and refused to support and assist it in its strike
against the Employer.
(e) Possessing, maintaining, or storing any explosive
device or other weapon at or near the premises of the
Ponce plant.
(f) In any other manner restraining or coercing employ-
ees in the exercise of rights guaranteed to them in Section 7
of the Act.
2. Take the following affirmative action which I deem
is necessary to effectuate the policies of the Act:
(a) Post at its offices in Ponce, Puerto Rico, copies of the
attached notice marked "Appendix." to Copies of said
notice, on forms to be provided by the Regional Director
for Region 24, after being duly signed by Respondent's
duly authorized representative, shall be posted by it
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to members are custom-
arily posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, defaced, or
covered by any other material.
(b) Mail to the Regional Director for Region 24, copies
of the attached notice marked "Appendix" for posting by
Puerto Rican Cement Company, Inc., at its place of
business in Ponce, Puerto Rico, in areas where notices to
employees are customarily posted, if the Employer is
willing to do so. Copies of said notice, to be provided by
the Regional Director for Region 24, after being signed by
a representative of Respondent, shall be forthwith returned
to said Regional Director.
m' 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 read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
(c) Notify the Regional Director for Region 24, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
as to those allegations not specifically found herein.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT block nonstriking employees, supervi-
sors, or employees of suppliers, from going into or
coming out of the Ponce plant either by mass picketing
or by placing or throwing objects in the driveway.
WE WILL NOT engage in acts of violence against the
body or property of nonstriking employees because
they cross the picket line at the Ponce plant.
WE WILL NOT intimidate nonstriking employees at
the picket line by carrying shovels, brooms, or any
other potential weapons in order to prevent those
employees from crossing the picket line.
WE WILL NOT threaten the nonstriking employees
with physical or property injury during home visits if
they fail or refuse to support and assist our Union in its
strike against the Puerto Rican Cement Company, Inc.
WE WILL NOT possess, maintain, or store any
explosive devices or other weapons at or near the
premises of the Ponce plant.
WE WILL NOT in any other manner restrain or coerce
employees in the exercise of their rights guaranteed
under the National Labor Relations Act, as amended.
UNION DE OPERADORES Y
CANTEROS DE LA
INDUSTRIAL DEL CEMENTO
DE PONCE
178