Union Nacional de Trabajadores

National Labor Relations Board - Board Decisions

Jul 30, 1975

219 N.L.R.B. 862 (N.L.R.B. 1975)

862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union National de Trabajadores and its agent Arturo
Grant and The Carborundum Company of Puerto
Rico and Carborundum Caribbean, Inc.
The Carborundum Company of Puerto Rico and Car-
borundum Caribbean , Inc. and Union National de
Trabajadores. Cases 24-CB-907, 24-RC-5263, 24-
RC-5264,' and 24-CA-3548
July 30, 1975
DECISION AND ORDER
By MEMBERS JENKINS, KENNEDY, AND PENELLO
On February 13, 1975, Administrative Law Judge
Arnold Ordman issued the attached Decision in this
proceeding. Thereafter, Respondent Employer and
Respondent Union filed exceptions 2 and supporting
briefs and Respondent Employer filed a brief an-
swering Respondent Union's exceptions.
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge to the
extent consistent herewith.
1. Consistent with the findings of the Administra-
tive Law Judge , these are the critical facts in this
case:
On May 22, 1974, the Union was certified as the
exclusive bargaining representative of the Employer's
production and maintenance employees. Thereafter,
the Union and the Company held a number of bar-
gaining sessions which failed to yield a collective-
bargaining agreement. At the negotiations held on
August 22, 1974, the last meeting between the parties,
the Union's president, Arturo Grant, reacted to the
Company's final contract proposal by announcing
that it was better to conclude the meeting because
i In light of the Employer's motion to revoke Respondent Union's certifi-
cation of representative in Cases 24-RC-5263 and 24-RC-5264, we have
consolidated those cases with the proceedings herein.
2 Respondent Union has excepted to the fact that these proceedings have
been conducted in English rather than Spanish , and to our requirement that
it furnish complete translations in English of its exceptions to the Adminis-
trative Law Judge 's Decision . We find its contentions to be without ment.
See Carmona v. Sheffiel4 325 F.Supp. 1341 (D.C. Calif., 1971), affd. 475
F.2d 738 (C.A. 9, 1973).
3 The Respondent Union has excepted to certain credibility findings
made by the Administrative Law Judge . It is the Board's established policy
not to overrule an Administrative Law Judge 's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950 ), enfd . 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
"I'm at the point of starting a fight." When an em-
ployee on the Union 's negotiating committee started
to address a remark to the Company's negotiators,
Grant looked at the employee and said, "You keep
quiet because I'm about to start slapping people
here." At this point, the Company's representatives
agreed it was best to leave the meeting, which they
did.
About a week later, a union official , Radames
Acosta-Cepeda, telephoned Employer's attorney,
Victor Comolli, and asked if Comolli would inter-
vene to convince the company negotiators to contin-
ue meeting with the Union. Comolli commented that
the negotiators had been threatened by Grant at the
August 22 meeting and were afraid to meet with the
Union. Acosta-Cepeda replied that he would take
charge of the negotiations for the Union and again
requested Comolli's assistance in reinstituting negoti-
ations. Comolli agreed to contact his client and, a
few days later, Acosta-Cepeda again telephoned him.
During this second conversation, Comolli informed
Acosta-Cepeda that he had told the company negoti-
ators that Acosta-Cepeda was now in charge of the
negotiations for the Union. Comolli also told him
that the Company would meet with the Union on the
condition "that the Union cease in all kinds of
threats, disrespectful tactics, violence, or disruptions
in the plant," and on the further condition that the
meeting be held in San Juan at the offices of the
Department of Labor and in the presence of a Gov-
ernment mediator. Acosta-Cepeda agreed to these
conditions, and Comolli immediately contacted the
proper Government authorities and set up a meeting
for September 18, 1974.
That meeting was never held. On the morning of
September 17, 1974, Arturo Grant and three other
union agents entered the Employer 's plant against
the instructions of the plant guard. Once inside the
Employer's premises , they physically attacked and
beat a supervisor, Ortiz Cano, and an employee,
Jenero Rosario. As the four union officials left the
scene of the beatings, Arturo Grant stated, "This one
we are about to kill," referring to employee Rosario
who was slumped on the floor . Rosario had acted as
an organizer for the Independent, Respondent
Union's rival , during the earlier election campaign
which culminated in Respondent Union's certifica-
tion.
The Company did not appear at the bargaining
session scheduled for September 18. Shortly before
noon on the following day, September 19, Arturo
Grant, accompanied by an attorney and the same
union officials who had accompanied him during the
September 17 incident , again entered the Employer's
plant, ignoring the protest of the plant guard, who
219 NLRB No. 157
UNION NACIONAL DE TRABAJADORES 863
then telephoned the police. Once inside, they in-
quired as to why the Company' s representatives had
not appeared at the meeting arranged for the day
before, and again were told that the Employer was
concerned about the Union violence, that it would
not negotiate until the violence ended , and that it
objected to Grant's further participation in any bar-
gaining sessions . When the police who had been
summoned by the guard arrived, Grant and his com-
panions left the premises .4 Shortly afterwards, Grant
stood outside the closed plant gate with a loudspeak-
er and addressed a group of 50 to 100 of the
Company's employees who were on their lunchbreak.
Grant stated that the Employer was refusing to nego-
tiate, that the Employer was seeking to exclude the
Union from the plant, and that if the Employer con-
tinued closing its gates they would knock or break
the gates down. After this final incident, the Union
made several requests for bargaining sessions, but no
further bargaining occurred.
We agree with the Administrative Law Judge that
the Respondent Union and its agent Arturo Grant
violated Section 8(b)(1)(A) of the Act by each of the
following acts committed against employees or in the
presence of employees: (1) the threat of physical vio-
lence made at the negotiating session on August 22,
1974; (2) the physical violence and bodily injury in-
flicted upon Supervisor Ortiz Cano and employee
Jenero Rosario, and the threat to kill Rosario on Sep-
tember 17, 1974; and (3) the threat to knock or
break down the gates of the Company's plant on
September 19, 1974.
Notwithstanding this violent misconduct, the Ad-
ministrative Law Judge concluded that the Company
was not justified in refusing to meet and bargain with
the Union thereafter. The Company submitted that it
was not bound to bargain until it received assurances
that its negotiators would not be threatened , that its
employees would not be assaulted and threatened
with death, and that its property would not be sub-
jected to attack or threats of attack . The Administra-
tive Law Judge agreed with this contention. How-
ever , satisfied that assurances against union
misconduct were provided by his cease -and-desist or-
der designed to remedy the Union's violations of Sec-
tion 8(b)(1)(A), he proceeded to find that the Compa-
ny violated Section 8 (a)(5). We find merit in the
Respondent Company's exception to this conclusion.
The record clearly establishes that prior to Septem-
ber 18 the Union engaged in violence and made
threats which were unprovoked , pervasive in charac-
ter, and destructive of an harmonious bargaining re-
The record reveals that a warrant had previously been issued for the
arrest of Grant as a result of his misconduct during the September 17 inci-
dent.
lationship. We would not expect or require an em-
ployer to sit down and bargain with a union guilty of
such misconduct absent adequate assurances against
continuation thereof. In this case, the Respondent
Company had not received such assurances at the
time of its alleged unlawful refusal to meet with the
Union. As the Administrative Law Judge recognized,
any commitments which Acosta-Cepeda made to
Comolli prior to the scheduled meeting on Septem-
ber 18 were rendered meaningless by the subsequent
acts of violence and threats on September 17 and 19.
But the Administrative Law Judge reasoned that his
cease-and-desist order directed at the Union's mis-
conduct provided the necessary assurances. We dis-
agree . We cannot perceive how his order dated Feb-
ruary 13, 1975, could mollify fears held 5 months
earlier . Thus, we believe that the Company was war-
ranted in refusing to meet and bargain with the
Union following the Union's violent misconduct and,
accordingly, we find that it did not violate Section
8(a)(5) of the Act.
2. The Company also excepts to the Administra-
tive Law Judge's denial of its motion to revoke the
Union's certification as exclusive bargaining repre-
sentative of its production and maintenance employ-
ees. We believe this exception is also meritorious.
This labor organization, by its brutal and unpro-
voked physical violence in this case and by its exten-
sive record of similar aggravated misconduct in other
recent cases,5 has evinced an intent to bypass the
peaceful methods of collective bargaining contem-
plated in the Act and commonly accepted and prac-
ticed by labor organizations and employers through-
out the country. It has consistently exhibited an utter
disregard for the orderly and lawful processes avail-
able under the Act, and has instead deliberately re-
sorted to self-help through violence. This Union,
though armed with a Board certification under the
Act, has in this case, as well as in the cases cited
above, evidenced a total disinterest in furthering the
Act's policies of promoting collective bargaining and
industrial peace .6 Indeed, it has infected the bargain-
ing process.
5 Union National de Trabjadores and its Agent, Alcides Serrano (Jacobs
Constructors Company of Puerto Rico), 219 NLRB 405 (1975); Union Nacion-
a! de Trabjadores and its Agent Arturo Grant (Macal Container Corporation),
219 NLRB 429; Union National de Trabaaadores and Comite Organizador
Obreros en Huelga de Catalytic (Catalytic Industrial Maintenance Co., Inc.),
219 NLRB 414. See also Union National de Trabjadores and its agent Ra-
dames Acosta -Cepeda (Surgical Appliances Mfg, Inc.), 203 NLRB 106 (1973).
6 The cases cited in In. 5, supra, are replete with examples of this Union's
contempt for the authority of the Act and the Board . In Jacobs Constructors
Company of Puerto Rico, Union Agent Castro -Ramos testified at the hearing
that he "does not recognize the authority of the law or of the Board that
administers the law ," and "people will understand that we are here against
our will , and that we do not acknowledge any authority of the Board over
us." He further stated, "The main [function of an organizer for Respondent
Continued
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While we recognize the importance of the right of
employees to be represented by their duly selected
bargaining representative , we cannot continue to cer-
tify as a qualified bargaining representative a labor
organization such as the Respondent Union which
does not lawfully pursue its representation rights and
is openly defiant of the authority of the Board and
the teachings and purposes of the Act. Due to the
atmosphere of fear and coercion generated by the
Union's unlawful conduct, no constructive bargain-
ing on behalf of the employees it represents is feasi-
ble. Thus, this Union has corrupted and frustrated
the representative scheme of bargaining envisaged by
the Act. In these circumstances , we believe it best
serves the purposes of the Act and the legitimate in-
terests of all concerned , without unduly impinging
upon the right of the Company's employees to be
represented by the union of their choice, to revoke
the Union's certification as bargaining representative
of the Company's employees. In addition, we shall
deny the Union the right to invoke our statutory pro-
cesses in aid of its demand for recognition with re-
spect to these employees until an appropriate time
when the employees are able to demonstrate their
desires anew in an atmosphere free of coercion and
the Respondent Union proves its majority among
these employees through the Board's election pro-
cess.'
ORDERS
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Union Nacional de Trabajadores, Rio Piedras, Puer-
to Rico, and its agent Arturo Grant, their officers,
agents , and representatives, shall:
1. Cease and desist from:
(a) Restraining or coercing employees of The Car-
borundum Company of Puerto Rico and Carborun-
dum Caribbean, Inc., a single integrated enterprise,
in the exercise of their rights under Section 7 of the
National Labor Relations Act, by violence or threats
of violence directed against such employees or in the
presence of such employees, by violence or threats of
Union] is to see that workers' rights are respected, that the laws that are in
effect in this country be applied in a manner favorable to the workers and
when they cannot be they should be violated."
7 See Herbert Bernstein, Alan Bernstein, Laura Bernstein , a Copartnership
d/b/a Laura Modes Company, 144 NLRB 1592 (1963).
8In view of Respondent Union's repeated violations of the Act, whose
authority it refuses to recognize, and considering the nature and extent of its
unlawful conduct in the cases cited in In . 5, supra, we have found it neces-
sary to modify the Order recommended by the Administrative Law Judge in
certain respects so as to better effectuate the policies of the Act and serve
the public interest.
violence against supervisors and other representa-
tives of the Employer, or by threats of damage to the
Employer's property.
(b) In any other manner restraining or coercing
employees in the exercise of rights guaranteed by
Section 7 of the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Post at its offices and meeting places in Puerto
Rico copies of the attached notice marked "Appen-
dix." 9 Copies of said notice, in English and in Span-
ish, to be furnished by the Regional Director for Re-
gion 24, after being duly signed by Arturo Grant and
an authorized representative of the Respondent
Union, shall be posted by it immediately upon re-
ceipt thereof and be maintained by it for a period of
60 consecutive days thereafter, in conspicuous
places, incuding all places where notices to its mem-
bers are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices
are not altered, defaced, or covered by any other ma-
terial.
(b) Forthwith mail copies of said notices, in Eng-
lish and in Spanish, to the Regional Director for Re-
gion 24, after said copies have been signed as provid-
ed above, for mailing of said notice by the Regional
Director to each employee in Puerto Rico of The
Carborundum Company of Puerto Rico and Carbo-
rundum Caribbean, Inc., and to that Company for
posting by it, if willing, at its premises at any location
in Puerto Rico in places where notices to employees
are customarily posted.
(c) Publish said notice at Respondent Union's ex-
pense, in all newspapers of general distribution pub-
lished in Puerto Rico, and in any newspaper of Re-
spondent Union, in each case in the language in
which the newspaper is printed.
(d) Notify the Regional Director for Region 24, in
writing, within 20 days from the date of this Order,
what steps the Respondent Union and its agent Artu-
ro Grant have taken to comply herewith.
IT IS FURTHER ORDERED that the Certification of
Representative heretofore issued in Cases 24-
RC-5263 and 24-RC-5264 be, and it hereby is, re-
voked.
IT IS FURTHER ORDERED that the complaint in Case
24-CA-3548 be, and it hereby is, dismissed in its en-
tirety.
MEMBER KENNEDY, concurring:
I agree with my colleagues' finding that Respon-
In the event that this 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."
UNION NACIONAL DE TRABAJADORES
dent Union Nacional and its agent engaged in viola-
tions of Section 8(b)(1)(A) of the Act and that the
Union's certification must be revoked.
I concur in the remedy which is being ordered in
this case because, unlike Catalytic Industrial Mainte-
nance, Jacobs Construction, and Macal Container, su-
pra, there is no indication here that employees have
lost wages because of the Union's misconduct.
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a full trial in which all sides had the opportuni-
ty to present their evidence, the National Labor Re-
lations Board has found that we, Union Nacional de
Trabajadores, and our agent Arturo Grant, violated
the National Labor Relations Act, and has revoked
our certification as exclusive bargaining representa-
tive of the employees of The Carborundum Compa-
ny of Puerto Rico and Carborundum Caribbean,
Inc., and has ordered us to post this notice.
WE WILL NOT restrain or coerce employees of
The Carborundum Company of Puerto Rico
and Carborundum Caribbean , Inc., a single
integrated enterprise, in the exercise of their
rights under Section 7 of the National Labor Re-
lations Act by violence or threats of violence di-
rected against such employees or, in the pres-
ence of such employees, by violence or threats of
violence against supervisors and other represen-
tatives of the Employer, or by threats of damage
to the Employer's property.
WE WILL NOT in any other manner restrain or
coerce employees of The Carborundum Compa-
ny of Puerto Rico and Carborundum Caribbe-
an, Inc., in the exercise of rights guaranteed by
Section 7 of the Act.
WE WILL NOT act or claim to act as the collec-
tive-bargaining representative of the employees
of The Carborundum Company of Puerto Rico
and Carborundum Caribbean, Inc., unless and
until we have been certified anew by the Nation-
al Labor Relations Board.
You are free to retain your membership in this
Union or join any other labor organization, and by
majority choice, to select at the appropriate time any
union to represent you in bargaining with your Em-
ployer.
UNION NACIONAL DE TRABAJADORES
DECISION
STATEMENT OF THE CASE
865
ARNOLD ORDMAN, Administrative Law Judge: In Septem-
ber and October 1974 the employing enterprises and the
Union, each named in the caption, herein identified, re-
spectively, as the Employer and the Union or as Respon-
dent Employer and Respondent Union, filed charges of
unfair labor practices against each other. Pursuant to these
charges, complaint issued against the Union and its agent
Arturo Grant on October 15, 1974 (Case 24-CB-907), and
complaint issued against the Employer on October 23,
1974 (Case 24-CA-3548). By order also dated October 23,
1974, the two matters were consolidated for hearing.'
The principal issue posed in Case 24-CB-907 is whether
the Union and Grant, by violence and threats of violence,
restrained and coerced employees in the exercise of their
rights under Section 7 of the National Labor Relations
Act, as amended, thereby violating Section 8(b)(1)(A) of
the Act. The Union and Grant deny the commission of
unfair labor practices. The principal issue posed in Case
24-CA-3548 is whether the Employer refused to meet and
bargain with the Union which had been certified as the
bargaining representative of its employees in an appropri-
ate bargaining unit, thereby violating Section 8(a)(5) of the
Act. The Employer denies the commission of unfair labor
practices, and urges affirmatively that because of events
following the certification of the Union, it is no longer un-
der any obligation to meet and bargain with the Union.
Hearing on the controverted issues was conducted be-
fore me in Hato Rey, Puerto Rico, on November 7 and 8,
1974. Oral argument was presented at the hearing and sub-
sequently, on December 30, 1974, written briefs were re-
ceived from all parties.
Upon the entire record in this proceeding, upon my ob-
servation of the witnesses and after due consideration of
argument and briefs, I make the following:
FINDINGS AND CONCLUSIONS
1. JURISDICTION
The Carborundum Company of Puerto Rico and Carbo-
rundum Caribbean, Inc., herein collectively referred to as
the Employer, are Puerto Rico corporations and, at all
times material here, have been a single integrated corpora-
tion engaged in the manufacture, sale, and distribution of
abrasives, ceramics, and related products. The Employer's
principal office and plant is in the city of Mayaguez, Puer-
to Rico. During the past year, a representative period, the
Employer, in the course and conduct of its business, has
purchased and received at its Mayaguez plant goods val-
ued in excess of $50,000 from points outside Puerto Rico.
Union Nacional de Trabajadores, herein the Union, was
certified on May 22, 1974, as the exclusive representative
of the Employer's production and maintenance employees
1 Early in the hearing , Attorney Comolli who later appeared as a witness
was replaced as counsel for Respondent Employer Radames Torruella, Esq.
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in an appropriate unit.
Upon the foregoing undisputed facts General Counsel
alleges, the Employer and the Union admit , and I find that
the Employer is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act and that
the Union is a labor organization within the meaning of
Section 2(5) of the Act . It is further admitted , and I find,
that Arturo Grant, named as a Respondent herein , Osval-
do Romero , Carlos Rodriguez , and Carlos Gomez are, and
have been at all times material herein , respectively, the
president, secretary of organization , organizer, and organ-
izer of the Union , acting on its behalf and agents thereof
within the meaning of Section 2(13) of the Act.
I conclude and find that it is proper for the Board to
assert jurisdiction in this proceeding.
It. THE UNFAIR LABOR PRACTICES
A. Background
Following an election proceeding before the Board par-
ticipated in both by the Union herein and by an indepen-
dent union of the Employer's employees , here called the
Independent, the Union was certified on May 22, 1974, as
the exclusive bargaining representative of the production
and maintenance employees of the Employer . Thereafter,
the Employer and the Union held a number of bargaining
sessions for the purpose of negotiating a collective -bargain-
ing agreement covering the employees in the unit for which
the Union had been certified as bargaining representative.
The last such meeting was held on August 22, 1974, at the
Mayaguez Hilton Hotel in Mayaguez , Puerto Rico , the lo-
cation of the previous meetings . No agreement resulted.
Arrangements were made for a further meeting to be held
on September 18, 1974 , in San Juan at the Department of
Labor offices with a conciliator from the Department of
Labor present . The Department of Labor conciliator ap-
peared as did representatives for the Union. No representa-
tives for the Employer appeared.
The parties stipulated that following this abortive effort,
the Union made several requests for further bargaining
with the Employer and the Employer received these re-
quests . However , no further bargaining occurred.
The instant cases arise out of the foregoing situation.
The Employer takes the position , inter alia, that because of
acts of violence, threats, and intimidation committed by
the Union during the period in question , it was relieved of
its obligation to bargain. In this connection , the Employer
filed the unfair labor practice charges leading to the is-
suance of the complaint against the Union alleging that the
Union had by such conduct violated Section 8(b)(1)(A) of
the Act . The Employer , on September 20, 1974 , also filed a
petition to revoke the certification of the Union . The Re-
gional Director for Region 24 denied the petition and the
Employer requested the Board to review that denial. On
November 5, 1974 , the Board rejected this request without
prejudice to renewal of the request before the Administra-
tive Law Judge in the instant proceeding. Accordingly, Re-
spondent has moved in the instant proceeding for revoca-
tion of the certification.
The Union for its part filed unfair labor charges against
the Employer resulting in the issuance of a complaint alleg-
ing that the Employer , by refusing since on or about Sep-
tember 19 , 1974, to meet and bargain with the Union as the
exclusive bargaining representative of the Employer's em-
ployees in an appropriate unit, violated Section 8(a)(5) of
the Act.
The evidence and subsidiary findings relevant to the re-
spective cases, consolidated for purposes of this proceed-
ing, are set forth hereunder.
B. Case 24-CB-907
The specific derelictions alleged in the complaint against
the Union recite that on or about August 22, 1974, Arturo
Grant, during the course of a negotiating meeting, threat-
ened to slap representatives of the Employer's negotiating
committee;? that on or about September 17, 1974, Grant
and other agents of the Union threatened to inflict and did
inflict bodily injury upon an employee and upon a supervi-
sor of the Employer; that on the same date Grant threat-
ened to kill said employee; and that on or about September
19, 1974, Grant in the presence of employees threatened to
knock down the gates to the Employer's plant. These inci-
dents are discussed hereunder seriatim.
(1) The incident of August 22: As noted, the last negoti-
ating meeting between the Employer and the Union oc-
curred on August 22, 1974. Four officials were present for
the Employer; for the Union two union officials appeared,
Grant and Romero, accompanied by four employees com-
prising the employee committee. Of these 10 individuals
only 4 testified: Richard Tremble, the Employer's labor
relations representative; Jose Remus, plant manager of the
Employer's pouring plant; Arturo Grant, president of the
Union; and Osvaldo Romero, organizing secretary for the
Union. Only two of these four, Remus and Grant, testified
as to the "slapping" incident.
It appears that at the August 22 meeting, the Employer's
representatives submitted their final contract proposal to
the Union with the suggestion that the proposal be submit-
ted to the union membership for approval. Grant replied
that the proposal was unsatisfactory and that it would be
submitted to the membership with a negative recommen-
dation. Grant also added the comment addressed to Trem-
ble that this is a bunch of "desgraciados" and stated also
that this was a "cabronada" on the part of the Employer.3
Thereupon, according to Remus, who appeared as a wit-
ness for General Counsel, Grant announced that it was
better to conclude the meeting because "I'm at the point of
starting a fight." Remus further testified that Tremble and
Padilla, the Employer's personnel manager, were talking to
2 This allegation was made purusant to General Counsel's motion, made
at the opening of the hearing. Notice of the motion had been given to the
parties well in advance of the hearing and no objection was made to the
motion. The motion was granted.
3 The bargaining negotiations were conducted essentially in Spanish. So.
too, was the hearing herein, necessitating the use of an interpreter. The
parties were unable to agree as to an accurate translation of the words
"desgraciados" and "cabronada." The word "desgraciados" was translated.
albeit inadequately, as "scoundrels" or "miserable people," but no agree-
ment could be reached as to whether the term was essentially an insult.
There was agreement that the word "cabronada" was an offensive term but
not even an approximate translation could be stipulated.
UNION NACIONAL DE TRABAJADORES 867
one another at this time when an employee member of the
union negotiating committee started to address a remark to
Padilla . At that point, Remus testified , Grant looked at the
employee and said , "You keep quiet because I 'm about to
start slapping people here." Thereupon, according to Re-
mus, Remus suggested that the Employer negotiators leave
because things were getting bad , and the Employer negoti-
ators did leave . On cross-examination by union counsel,
Remus reaffirmed that Grant 's remark about slapping peo-
ple was addressed to the employee representative and not
to the Employer's representatives . Remus could not re-
member any of the Employer negotiators making a state-
ment that they were leaving the meeting because they were
being mistreated.
Arturo Grant, also a witness for General Counsel, gave
the only other competent testimony relevant to the "slap-
ping" incident . In reply to a question by counsel for the
Union, Grant denied that he had threatened at the August
22 meeting or at any other time to slap members of the
Employer's negotiating committee.
As noted , the amended complaint alleges that Grant
threatened at the August 22 meeting to slap the
"Employer's representatives ." That allegation is not specif-
ically supported by the record, Grant denied having made
the statement at all. What was established, however, by
Remus' testimony , which I credit, is that toward the close
of the August 22 meeting, in the presence and hearing of
both the Employer' s representatives and the employee rep-
resentatives of the Union , Grant did address the remark to
one of the employee representatives that "You keep quiet
because I am about to start slapping people here." I so
find . I find further , as also established by Remus' credited
testimony, that Grant stated just a few moments before
that it was better to conclude the meeting because he was
at the point of starting a fight . I discredit Grant's denials in
this respect.
(2) The incidents of September 17: The relevant allega-
tions of the complaint here are that Arturo Grant and
other named agents of the Union threatened to inflict and
did inflict bodily injury upon an employee, and upon a
supervisor in the presence of that employee , and, further,
that Grant threatened to kill said employee.
The principal support for these allegations derives from
the testimony of Ortiz Cano and of Jenaro Rosario, the
supervisor and employee involved.
Ortiz Cano, who had been a supervisor for Respondent
for almost 20 years, testified that he came to Respondent's
plant on September 17 at 6: 20 a.m ., 10 minutes before
working hours started , as was his custom . When the start-
ing bell rang, Ortiz Cano followed his usual practice of
collecting timecards of the employees he supervised. As he
completed this task he saw Arturo Grant, Osvaldo Rome-
ro, Carlos Rodriguez , and Carlos Gomez (all admittedly
officers and agents of the Union) standing there together
with an employee , Jenaro Rosario . Ortiz Cano further testi-
fied that, pursuant to longstanding directives of the Em-
ployer, he informed the four union officials that unless
they had permission they could not go inside the plant.
When no response was made , Ortiz Cano opened the door
to the adjoining production control room where he did his
work. At this point, according to Ortiz, he was shoved
through the door by someone he did not see. Thereupon,
Rodriguez asked him what he was going to do and Ortiz
replied that he was going to bring the cards up to date.
Ortiz testified that Rodriguez then hit him with his fist, that
Grant, Romero, and Gomez, who came into the room with
Rodriguez, also struck him and beat him to the floor. Ortiz
stated that when he looked up from the floor he saw the
four union officials heading toward Jenaro Rosario, who
was also present, and that Rodriguez had his hands up in a
menacing manner. According to Ortiz, he seized this op-
portunity to run out of the rear door to the office, escaping
an effort by Rodriguez to grab him as he ran out.
Ortiz gave the foregoing testimony on direct examina-
tion by General Counsel. On cross-examination by union
counsel, it appeared that Ortiz, an older man, was either
reluctant to reply to questions or that his memory was not
too sharp as to numerous matters. However , his account of
the attack upon him remained unshaken despite vigorous
questioning. The only additional information furnished by
Ortiz as to this incident was that upon emerging from the
office he told some employees, who were there, that he had
been hit and that when Jose Remus , a plant manager, came
into the plant at 7 a.m., Ortiz told Remus what had hap-
pened.
Employee Jenaro Rosario , a machine operator, testified
next. He stated that he, also, came to the plant at 6:20 a.m.
on September 17. Upon his arrival, according to Rosario,
he saw the four union officials , previously named , standing
in the area where Rosario punched in his timecard. As
Rosario proceeded to enter the working area, Romero
hailed him and asked whether he had been collecting sig-
natures for a union deauthorization petition . Rosario gave
Romero a noncommittal answer .4 Romero sought to ques-
tion Rosario further. At that point, Rosario testified, Ortiz,
who was collecting his timecards, told the union officials
they could not be present because they were not author-
ized. According to Rosario, Ortiz then proceeded to enter
the production control room , Rodriguez shoved Ortiz in-
side the room , and all four officials went into the room as
did Rosario. Rosario corroborated Ortiz' account of the
beating given Ortiz , corroborated that, as Ortiz fell to the
floor, the union officials advanced toward Rosario, and
that Ortiz fled through the rear door at this juncture. Ro-
sario testified that Rodriguez slapped him while the other
union officials held him , Rosario , against the wall. The
union officials then left the room, according to Rosario,
but as Grant and Rodriguez walked out the door, they
made the comment, "This one we are about to kill ." Rosar-
io testified that a report was made to the police as to what
had occurred and a "warrant was sworn against them."
On cross-examination by counsel for the Union, Rosario
stated that he made no effort to defend Ortiz because
"there were four against two," and that he did not yell for
help. Despite rigorous questioning, however, Rosario's ac-
count of the fracas remained essentially unshaken.
Of the four union officials involved in the September 17
incidents only Grant and Romero testified. Grant testified
It is undisputed that Rosario had acted as an organizer for the Indepen-
dent during the earlier election campaign which culminated in the certifica-
tion of the Union.
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he came to the plant that day at about 6 : 25 a.m. ac-
companied by Romero , Rodriguez , and Gomez . Grant ac-
knowledged speaking to the guard at the outside gate of the
plant . Initially , Grant denied that the guard informed him
he could not enter the plant premises until 8 a .m. when the
office personnel arrived , but soon affirmed that the guard
had so informed him. However , nothwithstanding this ad-
monition , Grant testified , he and his companions went in
anyway, informing the guard that they were going in only
for a few minutes to remind the employee members of the
union negotiating committee of the bargaining session
scheduled for the following day at the Department of La-
bor and to offer them transportation if needed . After enter-
ing the premises , according to Grant, the message was
transmitted to the negotiating committee members. Grant
also acknowledged that his colleague Romero spoke to Ro-
sario on this occasion . Grant stated further that he and
Rodriguez had followed a supervisor into an office and
Rodriguez had grabbed the supervisor by the arm and
asked the latter what he was going to do. Grant conceded
that all four union officials as well as Rosario were present
in the office at the time but that he, Grant , remained at the
door and that the total time spent in the office was from 30
seconds to a minute.
On cross-examination by counsel for the Union, Grant
repeated that Rodriguez had grabbed a supervisor, now
identified as Ortiz , by the arm. Grant explained the inci-
dent on the basis that Ortiz had stated they (the union
officials) "could not be there ," and that Rodriguez told
Ortiz why they were there and that they were leaving. Ac-
cording to Grant , Ortiz said , "Now, you are going to see,"
and turned to enter an office whereupon Rodriguez grab-
bed Ortiz and asked, "What's happening? What are you
going to do?" Grant testified that as he entered the office
he saw Rosario there sticking his hand into his pocket.
Grant testified further that he told Rosario to be careful
what he was going to do because Grant thought Rosario
was reaching for a gun.
Rodriguez, obviously a pivotal figure in these events,
was not called upon to testify. Neither was Gomez. How-
ever, Romero, union secretary , was called as a witness for
the Union . Romero testified on direct examination that he
arrived at the plant between 6 and 6 : 30 a.m ., that he was
accompanied by Grant and Rodriguez, and that the pur-
pose of the visit was to talk to the employees about ongo-
ing negotiations . Romero confirmed that he questioned
Rosario as to whether the latter had been collecting signa-
tures to a petition adverse to the Union . He stated also that
he was accompanying Rosario to the timecard rack when
the bell for starting work sounded and that a gentleman,
heretofore identified as Ortiz, informed the union represen-
tatives that they could not remain there . Romero testified
that he told Ortiz he was talking to Rosario, that Ortiz
announced that "if you don't leave , you will see," and ran
into an adjoining office . Romero testified further that he
followed Ortiz to calm him down and assure him nothing
was happening and that Rodriguez who had been standing
near the door also sought to calm Ortiz . According to
Romero, Rodriguez did nothing more except that Rosario
entered the room and Grant took a position at the door. At
that point, Romero testified, Grant addressed Rosario who
was reaching into his back pocket , and asked Rosario what
the latter was going to do . According to Romero , he, like
Grant, assumed Rosario was reaching for a gun . Romero
concluded this phase of his testimony by stating that noth-
ing more happened and that the union representatives left.
On cross-examination by General Counsel, Romero tes-
tified, contrary to Grant, that the guard made no effort to
stop the union officials at the gate on the morning of Sep-
tember 17. However , in an earlier affidavit furnished to the
Board , the witness had corroborated Grant's testimony in
that regard . Romero also acknowledged in answer to ques-
tions propounded by counsel for the Employer that Rodri-
guez was holding Ortiz as Rodriguez , according to Rome-
ro, was trying to calm Ortiz.
The summary of the relevant evidence here presented as
to the events of September 17 poses a substantial problem
of credibility. I find that the testimony of Ortiz and Rosar-
io is essentially straightforward , credible , and consistent.
To a considerable degree the testimony of Grant and
Romero is corroborative but not as to the critical physical
encounters and the threat to kill Rosario . On the other
hand, the hostility of the union officials to Rosario, who
had acted as organizer for the Independent , is manifest on
the record. Similarly, the union officials were obviously put
out by Ortiz' statement that they had no right to be on
plant premises without permission. The explanations prof-
fered by Grant and Romero as to why they would follow
Ortiz into the production control room impress me as
being lame and somewhat contrived especially in view of
their claim that they had really completed what they came
to do at the plant, i.e., talk to the employee members of the
union negotiating committee . Relevant here also is the fact
that other conduct of the union officials such as their disre-
gard of plant guard instructions and, as more fully dis-
cussed hereunder , an asserted willingness to resort to phys-
ical force to achieve their objectives display a strong
likelihood that they would engage in the type of physical
attack and threat attributed to them by Rosario and by
Ortiz, the latter of whom, so far as the record shows,
played no partisan role in the antecedent and current
Union-Employer controversy . Significant here also is the
unexplained failure of the Union to produce Rodriguez as
a witness inasmuch as he was centrally involved in the
events relevant here.
In sum , I credit the testimony of Ortiz and Rosario as to
the events of September 17, 1974. Accordingly , I conclude
and find that Arturo Grant, Rodriguez, Romero, and Go-
mez inflicted bodily injury upon Supervisor Ortiz in the
presence of employee Rosario, inflicted bodily injury upon
Rosario also , and that Grant and Rodriguez further threat-
ened to kill Rosario.
3. The incident of September 19: The relevant allegation
of the complaint here is that on or about September 19,
1974, at the Employer's plant, the Union's agent Arturo
Grant, in the presence of employees , threatened to damage
the Employer's property by stating that he would knock
down the gates to the Employer's plants. The pertinent evi-
dence can be succinctly stated.
Shortly before noon on September 19, Arturo Grant, ac-
companied by Rodriguez , Romero, and Gomez , came to
the Employer's plant. With them on this occasion was one
UNION NACIONAL DE TRABAJADORES
of the Union's attorneys, Pedro Baiges Chapel, who was
present among other reasons because a warrant had previ-
ously been issued for the arrest of Grant. Over the protest
of a guard stationed at the plant gate, the group entered the
plant premises . Certain events transpired on the premises
which are not particularly germane here. In sum, however,
it appeared that the purpose of the union officials ' visit was
to discover why the Employer's representatives had not ap-
peared at the Department of Labor meeting which had
been scheduled the previous day. The union officials
learned in this connection that the Employer was con-
cerned about the violence that was occurring, that the Em-
ployer would not negotiate until the violence ended and,
further, that the Employer objected to the participation of
Grant in any bargaining negotiations . During the interim
the police, who had been summoned by the plant guard,
appeared at the plant premises . So far as the record shows,
the police took no action but Grant and his companions
left the premises and stationed themselves on the street
immediately outside the plant gate. This was during the
noon hour when the employees were on their lunchbreak.
About 50 to 100 employees were present at that time in the
immediate area of the plant gate.
It is undisputed that Grant addressed the employees on
this occasion over a loudspeaker located on the street out-
side the plant gate . Several witnesses testified with substan-
tial consistency as to the tenor of Grant's remarks which
were about 10 to 20 minutes in duration. The net of
Grant's remarks , according to these witnesses , was that the
Employer was refusing to negotiate, that the Union would
compel the Employer to negotiate, that the Employer was
seeking to exclude the Union from the plant, and that if the
Employer continued closing its gate , they (the Union)
would break it down.5
Grant, in his testimony , essentially confirmed this ac-
count of his remarks to the employees over the loudspeak-
er. Asked whether he had during the course of his remarks
threatened "to destroy the Company property-the gates-
or break them down," Grant replied, " I said something
similar to that." Grant testified further that he told the
employees that
... all this maneuvering and all this violence of the
Company was with the intention of stepping on the
right of each one of the employees to be represented
by the Union and that neither the employees nor us
could permit that we be stepped on by the Company
and that for that reason we were going to impede the
force of the Company to intimidate the employees;
that they were closing the gates which they had never
closed before, and that if this was done to prevent us from
going in that it was useless because we could knock them
down. . . . [Emphasis supplied.]
The only inconsistent testimony in this regard was given
by Osvaldo Romero. Romero testified initially that he did
not remember precisely but that possibly Grant did talk
5 The evidence is in conflict as to whether the Employer had always kept
its gate closed except to those who had legitimate business at the plant or
whether the practice of closing the plant gate was a recent development. I
find it unnecessary to resolve this issue.
869
about breaking the fence or gate. Later Romero specifical-
ly denied that Grant said the Union would knock down the
gates if the Employer closed them, or that Grant said any-
thing like that. In view of uniform testimony to the con-
trary and, particularly, Grant's own admissions, I do not
credit Romero's denials.
In sum, I conclude and find that on September 19, 1974,
Respondent's agent, President Arturo Grant, in the course
of addressing Respondent's employees over a loudspeaker
threatened that if the Employer closed its gates, the Union
would knock them down.
Conclusionary Findings as to Case 24-CB-907
I have already found herein that at the final bargaining
meeting of August 22, 1974, between the Employer and the
Union at which employees of the Employer were present,
Arturo Grant toward the close of the meeting announced
that it was better to close the meeting because he was at the
point of starting a fight and that, a few minutes later, told
one of the employee representatives at the meeting, "You
keep quiet because I am about to start slapping people
here." True, the latter remark was addressed to an employ-
ee representative and not to the Employer's representative.
However, the term "people here" was inclusive, and, in any
event, Grant's announced intention to resort to physical
force if necessary could not have other than a coercive and
intimidatory effect upon all who were present, and particu-
larly upon the employees in the exercise of their rights
guaranteed by Section 7 to engage in free collective bar-
gaining.
Similarly, the finding heretofore made that Grant and
his fellow union agents physically attacked Supervisor Or-
tiz in the presence of employee Rosario, physically at-
tacked Rosario, and that Grant and Rodriguez threatened
to kill Rosario, gives concrete content to Grant' s earlier
announced willingness at the August 22 meeting to resort
to violence to achieve the Union's objectives. A more dra-
matic demonstration of restraint and coercion of employ-
ees and the hazards of failing to cooperate and differing
with the Union can scarcely be presented.
Finally, I have found, as Grant virtually admits, that he
told the employees of the Union's intention to break down
the gates of the plant to further the Union's objectives.
This could only increase the apprehension of the employ-
ees as to the consequences of a free exercise on the part of
their organizational and collective-bargaining rights and is
plainly restraint and coercion of employees in the statutory
sense.
On the whole record, I conclude and find that by the
foregoing acts and each of them, the Union and its agent
Arturo Grant violated Section 8(b)(1)(A) of the Act. Union
Nacional de Trabajadores and its agent Radames Acosta-
Cepeda (Surgical Appliances Mfg., Inc.), 203 NLRB 106
(1973).
C. Case 24-CB-3548
The critical allegation in the complaint in this case is
that the Employer, since on or about September 19, 1974,
refused to meet and bargain collectively with the Union as
the exclusive bargaining representative of the Employer's
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees comprising an appropriate unit ." The Employer
denies this allegation and denies that the Union is current-
ly the exclusive bargaining representative of the employees
comprising the appropriate unit . The Employer in its an-
swer to the complaint also advances several affirmative de-
fenses . In substance the Employer pleads that because of
the Union's unremedied acts of violence and threats, the
Employer is under no obligation to bargain ; that the Em-
ployer is entitled , because of such violence and threats, to a
revocation of the Union's certification as bargaining repre-
sentative ; and that since August 22, 1974, a valid bargain-
ing impasse has existed between the Union and the Em-
ployer, terminating any further obligation on the part of
the Employer to meet and bargain collectively with the
Union.
Certain preliminary, albeit critical , facts are undisputed.
As already noted , the Union was certified on May 22,
1974, pursuant to a Board election , as the exclusive bar-
gaining representative of the Employer's production and
maintenance employees .? Pursuant to that certification the
Employer and the Union held several bargaining meetings.
The last such meeting occurred on August 22, 1974. A fur-
ther bargaining session, agreed to by the parties and sched-
uled for September 18, 1974, at the Department of Labor
in San Juan , did not take place because the Employer did
not attend . At the instant hearing the parties stipulated
that the Union made further requests for bargaining ses-
sions and that the Employer received these requests. These
requests were not acknowledged and no further bargaining
took place.
In the normal situation the continuing obligation of an
employer to meet and bargain with a union which has been
certified as the bargaining representative of his employees
in an appropriate bargaining unit is not subject to chal-
lenge . This is particularly true where, as here , the refusal of
the employer to meet and bargain with the Union occurs
months before the initial certification year has expired. Ray
Brooks v . N.L.R.B., 348 U.S. 96 (1954). It appears, there-
fore, that the Employer's violation of Section 8(a)(5) of the
Act is patent unless the Employer's proffered defenses
have merit . These defenses are considered hereunder.
Apart from its strictly affirmative defenses , the Employ-
er proffers no independent evidence in support of its denial
that the Union is no longer the exclusive bargaining repre-
sentative of its employees in an appropriate unit . True, the
Employer has made a motion to revoke the Board 's certifi-
cation of the Union as such representative . However, it
seems fair to assume that determination of that issue turns
on the identical considerations which the Employer urges
as grounds for relieving it of its bargaining obligation.
6 There is no dispute as to the composition of the appropriate unit for
which the Union had been certified on May 22, 1974, as exclusive bargain-
ing representative. The complaint alleges , the answer admits, and I find that
all production and maintenance employees employed by the Employer at its
factories in Mayaguez, Puerto Rico, but excluding the driver , all office and
plant clerical employees , technicians, professional personnel , guards and all
supervisors as defined in Section 2(11) of the Act , constitute a unit appropri-
ate for the purposes of collective bargaining within the meaning of Section
9(b) of the Act.
The record is devoid of any suggestion that the majority status of the
Union , established in the certification proceeding , no longer exists.
As noted , one of the propositions urged by the Employer
is that "[s]ince August 22, 1974 a valid impasse existed in
negotiations held between [the Union] and the Employer"
(par. 5 of the affirmative defenses listed in the Employer's
answer). I find this defense to be without merit.
To be sure , the Employer did submit a complete coun-
terproposal to the Union at the meeting of August 22,
1974, and denominated that counterproposal as its "final
offer" with a request that it be submitted to the union
membership for approval . As noted , the Union negotiators
indicated dissatisfaction with the counterproposal at the
meeting . Subsequently , it was rejected by the Union mem-
bership . Yet practical and long experience in labor rela-
tions refutes the notion that this series of events necessarily
precluded the possibility or even the probability of further
fruitful negotiations . Indeed, the Employer here did not
consider the meeting of August 22 as closing the door to
further bargaining . As shown by the testimony of its own
witness, Attorney Victor M. Comolli, arrangements were
proposed a week after the August 22 meeting , and thereaf-
ter consummated , for a further meeting between the Com-
pany and the Union to be held on September 18, 1974, at
the Department of Labor. No mention was made of an
impasse . Instead , it was assumed that with a cessation of
violence and a change of union negotiators it would be
possible "to iron out the wrinkles" in the bargaining nego-
tiations.e
In view of the totality of the evidence , the fact that only
a limited number of bargaining sessions had been held, the
fact that the August 22 meeting was the first at which the
Employer had submitted a complete counterproposal, the
fact that no one suggested at the time that an impasse ex-
isted , and the fact that the parties themselves agreed that
further bargaining negotiations might serve a useful pur-
pose . I am satisfied and find that no impasse existed.
More serious , however, and of greater import is the
Employer's contention that it was relieved of its statutory
duty to meet and bargain with the Union because of the
Union's misconduct already described and discussed earli-
er in this Decision . In this connection the Employer cites
and relies upon Herbert Bernstein, et al., d/b/a Laura
Modes Company, 144 NLRB 1592 (1963), and related cases
(see Employer's brief to the Administrative Law Judge p.
15, et seq.). Concededly, the misconduct of the Union en-
gaged in by its president, Arturo Grant , and by other ad-
mitted agents of the Union was of a serious nature and is
not to be condoned. On the other hand, equally to be shun-
ned is the frustration of the right of the Employer's em-
ployees, who were not directly involved in the misconduct
here found, to be represented by a bargaining representa-
tive of their own choosing, a choice made by them several
months earlier with all the protection afforded in a Gov-
ernment-conducted secret ballot election.
The balance between these competing interests is not
always easy to strike . The Employer here , however, in his
above-cited brief, after all the evidence was submitted and
contentions advanced , submits what I believe and find to
be an appropriate criterion for resolution of this issue in
the instant case . The Employer states:
s The September 18 meeting, as already noted, did not take place.
UNION NACIONAL DE TRABAJADORES 871
It is respectfully submitted to the Administrative
Law Judge that the Company's position is that it is not
bound to bargain with the Union until it gets assur-
ances that the Company negotiating committee will
not be threatened in any manner nor that Company
employees will be assaulted or threatened with death
nor company property subjected to attack or threats
of attack.
Those assurances are here provided. The misconduct of the
Union here alleged and found is violative of Section
8(b)(1)(A) of the Act and, pursuant to the statutory
scheme, continuation of such misconduct will be enjoined
by the Order entered herein. That order, to the extent nec-
essary and appropriate , is subject to Board affirmance and
court enforcement including the application of contempt
sanctions , if warranted.
The sole remaining objection to entry of a bargaining
order against the Employer is the Employer 's understand-
able disinclination to sit down at a bargaining table with
Arturo Grant, whose behavior generally, and at the bar-
gaining conference of August 22 particularly , prompts its
legitimate apprehension to further negotiations with him.
As the record demonstrates , however, both the Union and
Arturo Grant have already volunteered that he will not
further participate in Employer-Union negotiations. Ap-
propriate , therefore , is a provision in the remedial order to
be entered herein , as General Counsel indeed urges, to in-
sure that Arturo Grant not participate in such further bar-
gaining negotiations . In such a frame of reference I believe
the respective rights and interests of both the Employer
and employees are fully served . I believe further that this
accommodation comports with the principles enunciated
in Laura Modes, supra, as elucidated in Cascade Corpora-
tion, 192 NLRB 533 (1971), and quite recently in New Fair-
view Hall Convalescent Home, 206 NLRB 688 (1974).
Accordingly, I conclude and find that the Employer, by
refusing to meet and bargain collectively with the Union as
the exclusive bargaining representative of the Employer's
employees in the appropriate unit found herein violated
Section 8(a)(5) and ( 1) of the Act? I find further that there
is no meritorious bar to the entry of a bargaining order
framed in the manner herein described . By the same token
I find no warrant for granting Respondent 's request and/
or motion to revoke the certification of the Union.
CONCLUSIONS OF LAW
1. Union Nacional de Trabajadores is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
2. Arturo Grant is an agent of the above-named union
within the meaning of Section 2(13) of the Act.
3. The Carborundum Company of Puerto Rico and Car-
borundum Caribbean, Inc., constitute a single integrated
enterprise which is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
9 The complaint does not allege this conduct to be violative of Sec.
8(a)(1). However, an unlawful refusal to bargain derivatively interferes with
the right of employees guaranteed in Sec . 7 of the Act to engage in collective
bargaining and hence derivatively violates Sec. 8(a)(l). I so find.
4. All production and maintenance employees employed
by the above-named Employer at its factories in Maya-
guez, Puerto Rico, but excluding the driver, all office and
plant clerical employees, technicians, professional person-
nel, guards and all supervisors as defined in Section 2(11)
of the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
5. By the acts and conduct described in section II,B,
above, the above-named Union and its agent Arturo Grant
violated Section 8(b)(1)(A) of the Act.
6. By the acts and conduct described in section II,C,
above, the above-named Employer violated Section 8(a)(5)
and (1) of the Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
8. There is no warrant for revoking the certification of
the above-named union as exclusive bargaining representa-
tive of the Employer's employees in the above-described
unit.
REMEDY
Pursuant to the mandate of Section 10(c) of the Act,
cease-and-desist orders will be entered against the Union
and its agent Arturo Grant and against the Employer en-
joining them from engaging in the specific illicit conduct in
which they have been found to have engaged. General
Counsel and the Employer also join in a request that a
broad cease-and-desist order be entered against the Union
and Arturo Grant enjoining them from restraining or
coercing employees in any other manner in the exercise of
the rights guaranteed them by Section 7 of the Act. In view
of a similar pattern of violence in which the Board found
this same union to have engaged in Surgical Appliances
Mfg., Inc., supra,, and in view of the open and pervasive
character of the violence and threats found herein, I find
that a proclivity on the part of the Union to violate the Act
has been established and that a broad order is appropriate.
I shall so recommend.
In addition, the Employer, but not the General Counsel,
asks for special remedial relief against the Union in the
form of provisions directing that the Union reimburse the
Employer for its attorney's fees and costs in the present
proceeding and that the Union notify the employees at
their homes of its violations of Section 8(bxl)(A). With
respect to the request for litigation costs , the Board only a
few weeks ago gave a painstaking review of its controlling
rationale as to the imposition of such extraordinary reme-
dies . See Heck's, Inc., 215 NLRB 142 (1975). It would be
superfluous to restate that rationale here. Significant, how-
ever, is the Board's comment that it is "a continuing func-
tion of this administrative agency to consider on a case-by-
case basis , in the light of both our experience and the facts
of each case, what remedy will best remedy the misconduct
found ." In the instant proceeding we are confronted with
charges of unfair labor practice by the Employer against
the Union and by the Union against the Employer. In each
instance I have found merit to the charges. Without weigh-
ing the relative gravity of the offenses found, it would ap-
pear inappropriate in such a situation to award special re-
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lief to either party by directing reimbursement of litiga-
tional costs . I deny the request for reimbursement of such
costs . I likewise deny the request that the Union be re-
quired to notify the employees at their homes of its viola-
tion of the Act. Nothing in the record herein suggests that
the employees here involved have transient or temporary
employment or that they are unlikely to be reached if the
customary notices are posted . Accordingly , I shall direct
that the Union post the notices herein prescribed at its
business offices and meeting halls and, in addition, that
such notices be posted , the Employer willing, at the
Employer's places of business . This should assure adequate
publication to the employees affected.
So far as the order against the Employer is concerned,
no special relief is requested . In addition to directing the
Employer to cease and desist from its refusal to bargain
and from engaging in like or related conduct , an affirma-
tive bargaining order will be entered , conditioned however
on the proviso that the Employer will not be required to
bargain with the Union if the Union is represented in the
bargaining negotiations by Arturo Grant . Like the Union,
the Employer will be required to post appropriate notices,
and the usual reporting requirements will be imposed on
both the Employer and the Union.
[Recommended Order omitted from publication.]