Union Nacional de Trabajadores

National Labor Relations Board - Board Decisions

Jul 23, 1975

219 N.L.R.B. 405 (N.L.R.B. 1975)

UNION NACIONAL DE TRABAJADORES
Union Nacional de Trabajadores and its Agent, Al-
cides Serrano and Jacobs Constructors Company of
Puerto Rico. Case 24-CB-885
July 23, 1975
DECISION AND ORDER
On September 26, 1974, Administrative Law Judge
Josephine H. Klein issued the attached Decision in
this proceeding. Thereafter, Respondent Union,
Charging Party, and the General Counsel all filed
exceptions and supporting briefs.'
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,2 and
conclusions of the Administrative Law Judge.
ORDERS
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that Respondent Union
Nacional de Trabajadores, its officers, agents, and
representatives, and Respondent Alcides Serrano,
while acting as agent of Respondent Union Nacional
de TrabaJadores, shall:
1. Cease and desist from:
(a) Restraining or coercing employees of Jacobs
Constructors Company of Puerto Rico, or the em-
ployees of any other employer in Puerto Rico, from
engaging in their employment or exercising their
rights under Section 7 of the National Labor Rela-
tions Act, as amended, particularly by the use of
force or violence or threats of force or violence upon
the person or property of any employees, employers
or representatives of employers, or third persons
dealing with or attempting to deal with any employ-
er.
(b) In any other manner interfering with, restrain-
ing, or coercing employees of Jacobs Constructors
1 The request for oral argument by the Respondents is hereby denied as
the record and briefs adequately present the issues and positions of the
parties.
2 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 her findings.
3 As in the companion cases, issued this day, involving Respondent
Union-Union Nacional de Trabajadores and Comite Organizador Obreros en
Huelga de Catalytic (Catalytic Industrial Maintenance Co., Inc.), 219 NLRB
No. 66, and Union Nacional de Trabajadores and its Agent Arturo Grant
(Macal Container Corporation), 219 NLRB No. 67-where unlawful conduct
was engaged in similar to that found herein , we shall modify the Order
recommended by the Administrative Law Judge in order to better effectuate
the policies of the Act and serve the public interest.
405
Company of Puerto Rico, or the employees of any
other employer in Puerto Rico, in the exercise of
their rights under Section 7 of the Act.
2. Take the following affirmative action, which is
necessary to effectuate the policies of the Act:
(a) Post at Respondent Union's business office
and meeting hall copies in English and Spanish of
the attached notice marked "Appendix." 4 Copies of
said notice on forms provided by the Regional Direc-
tor for Region 24, after being duly signed by Respon-
dent Union's authorized representative, and by Re-
spondent Serrano, shall be posted by Respondent
Union immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where no-
tices to members are customarily posted. Reasonable
steps shall be taken by Respondent Union to insure
that said notices are not altered, defaced, or covered
by any other material.
(b) Forthwith mail copies of said notice in English
and in Spanish, to the said Regional Director, after
said copies have been signed as provided above, for
mailing of said notice by the Regional Director to
each employee in Puerto Rico of Jacobs Construc-
tors Company of Puerto Rico, and to Jacobs Con-
structors Company of Puerto Rico, for posting by it,
if willing, at its various locations in places where no-
tices 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 Respondents have taken to comply
herewith.
MEMBER KENNEDY, dissenting in part:
For the reasons fully stated in my dissenting opin-
ion in Catalytic Industrial Maintenance Co., Inc., 219
NLRB No. 66, issued this date, I dissent from my
colleagues' refusal to award backpay to those em-
ployees who were prevented from working by Re-
spo.ndents' unlawful restraint and coercion.
As in Catalytic and Macal Container Corporation,
219 NLRB No. 67, also issued this date, agents of
Respondent Nacional, particularly Respondent Al-
cides Serrano, threatened company officials, employ-
ees, suppliers, and others with physical harm if they
attempted to undermine the strike effort. In addition,
4In 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."
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when some of the striking employees sought to nego-
tiate an end to the dispute, Alcides Serrano quickly
squelched the effort and then proceeded to police his
decision with a "gang" of 8-12 pipe- and stick-wield-
ing nonemployees. According to the undisputed testi-
mony, Serrano announced to the employees that he
had brought "the gang with [him] to back [him] up so
that no one will go to work."
For the reasons stated in my Catalytic dissent, I
would award backpay for wages lost on account of
Respondents' unlawful conduct.
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all parties had the opportunity
to present their evidence, it has been found that we,
Union Nacional de Trabajadores de Puerto Rico,
and Alcides Serrano, acting as agent for the Union,
have violated the law and we have been required to
execute this notice. We are committed to abide by
the following statements:
WE WILL NOT engage in any violence or threat-
en to injure or damage the person or property of
any employee or representative of Jacobs Con-
structors Company of Puerto Rico or of any
other employer in Puerto Rico or any other per-
son for the purpose of preventing any employees
from freely exercising their right not to partici-
pate in any strike or their right to refrain from
engaging in any concerted activity.
WE WILL NOT in any other manner interfere
with, restrain, or coerce any employees in the
exercise of their right to self-organization, to
form, join, or assist labor organizations, to bar-
gain collectively through representatives of their
own choosing, and to engage in other concerted
activities for the purpose of collective bargaining
or other mutual aid or protection or to refrain
from engaging in such activities.
UNION NACIONAL DE TRABAJADORES OF
PUERTO RICO
DECISION
STATEMENT OF THE CASE
JOSEPHINE H. KLEIN, Administrative Law Judge: Pur-
suant to a charge filed on April 8, 1974,1 by Jacobs Con-
Unless otherwise indicated, all dates herein are in 1974
structors of Puerto Rico (the Company) against Union Na-
cional de Trabajadores (the Union) and Alcides Serrano,
stated to be the Union's agent, a complaint was issued on
June 7 alleging that on various occasions between April 2
and 19, during and after a strike against the Company, the
Union, through Respondent Serrano and another agent,
engaged in various acts of coercion and other misconduct
in contravention of Section 8(b)(1)(A) of the Act.2
Pursuant to due notice, a hearing was held before me in
Hato Rey, Puerto Rico, on July 18 and 19. All parties were
represented by counsel and were afforded full opportunity
to present oral and written evidence and to examine and
cross-examine witnesses. Counsel for Respondent present-
ed brief oral argument and a posttrial brief has been filed
by the Charging Party.
Upon the entire record, together with careful observa-
tion of the witnesses and consideration of the brief, I make
the following:
FINDINGS OF FACT
1. PRELIMINARY FINDINGS
The complaint alleges , the answer admits, and I find
that:
A. The Charging Party, a Puerto Rico corporation, with
its principal office and place of business in Hato Rey,
Puerto Rico, is and has been at all times material herein
engaged in performing engineering, construction and relat-
ed services. During the past year, a representative period,
the Company purchased and caused to be transported and
delivered to its places of business in Puerto Rico piping,
paneling, and other construction goods and materials val-
ued in excess of $50,000 directly from points outside Puer-
to Rico. The Company is, and has been at all times materi-
al herein, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
B. The Respondent Union, is and has been at all times
material herein, a labor organization wtihin the meaning of
Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The Facts
At the time here involved, Respondent was engaged in
constructing storage tanks and related pipes at a pollution
control installation at Arecibo, Puerto Rico. Damian Cruz-
Pabon was office manager at the project and Joseph Gresh
served as project construction superintendent. Juan G. Per-
eira-Zayas, the Company's comptroller, and Evelio Gonza-
lez-Pomales, a project engineer, both with offices in
Respondent's executive office in Hato Rey, also became
involved in the matters with which this complaint is con-
cerned. Cruz, Pereira, and Gonzalez all testified on behalf
of the General Counsel. Gresh is no longer associated with
Respondent and could not be located at the time of the
hearing.
2 National Labor Relations Act, as amended (61 Stat . 136, 73 Stat 519, 29
U S.C. § I51, et seq ).
UNION NACIONAL DE TRABAJADORES 407
There were approximately 22 workers, including 4 "fore-
men." 3 Employee Serrano , the individual Respondent, did
not appear or testify at the hearing.4 Respondents' only
witness was Elias Samuel Castro-Ramos, organizer for Re-
spondent Union.5
Cruz, Pereira , and Gonzales gave consistent and sub-
stantially mutually corroborative testimony. Therefore, the
summary of the General Counsel's evidence is based large-
ly on a composite of their testimony.
On March 28 Serrano, speaking on behalf of all the em-
ployees, complained to Cruz and Gresh about what the
employees deemed inadequate medical insurance. Accord-
ing to Cruz, Serrano was excited and hostile at that time.
Cruz immediately communicated with Pereira, who ar-
ranged to have a representative of a medical insurance
company visit the project the following Tuesday, April 2,
and the employees were so informed.
On Monday, April 1, the employees worked in an atmo-
sphere of complaints and hostility, principally on the part
of Serrano. But there is no evidence that the employees
gave any indication or warning at that time that they ex-
pected to strike. Union Organizer Castro, however, testi-
fied that on Monday afternoon he was informed of the
strike by Serrano and again on Monday evening by the
president of the Boilermakers Union. Castro also testified
that union authorization cards had been distributed some-
time during the previous week.
When Cruz and Gresh arrived at the project before 7
a.m. on Tuesday, all the employees (including the four
"foremen") were already there but on strike. Cruz testified
that Serrano , in an agitated manner and using obscenities,
was leading the assembled employees. He had employees
execute authorization cards at that time. Sometime later, a
representative of an insurance company arrived and an im-
proved insurance plan was explained to all the employees.
Thereupon Cruz said that, since they had got their de-
mand, the employees should return to work. Serrano, how-
ever, as spokesman , said that it was now too late ; the em-
ployees now wanted to be represented by the Union.
Pereira arrived a little later and joined Cruz and Gresh
in the trailer which housed the project office. Union Or-
ganizer Castro also arrived on the scene and apparently
spoke with the employees for a while and then entered the
trailer, followed immediately by Serrano and approximate-
ly three additional employees. Identifying himself as a
union organizer,6 Castro said that they had union authori-
3 The status of the "foremen" under the Act is not an issue in the present
proceeding . Pereira gave hearsay testimony that the foremen joined the
strike out of fear. No finding is made on the basis of that testimony.
4 In his brief , counsel for the Company says that Serrano "was present"
on July 17, when the trial was originally scheduled to begin and was post-
poned until the next day The record , however, does not reflect Serrano's
presence at any time.
5 Ramades Acosta-Cepeda , Respondent Union 's secretary-treasurer, was
called as an adverse witness by the General Counsel and testified briefly.
6 Jacobs' representatives testified that Castro identified himself as Ra-
mades Acosta-Cepeda , an officer and organizer of the Union. Actually,
Acosta visited the project only for about half an hour on Thursday, April 4.
It does not appear that he spoke to any Company representative . Whatever
the reason was for the mistaken identity , the evidence is clear that Castro
served as the union organizer but was known as Acosta to Jacobs ' represen-
tatives.
zation cards from all the employees and asked Pereira to
negotiate with the Union. Pereira refused. At the request of
Pereira and Cruz, the employee delegation left the trailer,
but said they would return. Around 11 a.m. Castro and
Serrano again approached the three company representa-
tives. According to Cruz, Serrano spoke for the employees
at this time. Cruz quoted Serrano as saying: "I have cards
signed by the employees also and I'm also an organizer for
Union National and we want to negotiate." Serrano was
speaking so excitedly and loudly that Gresh ordered him to
lower his voice, whereupon Serrano hurled derogatory epi-
thets and said to Gresh: "You, I'm going to bust your face
and I'm going to force you out of here, you are going to
have to leave." During this meeting Castro repeated the
employees' demands, which now included wage increases
to the levels recently achieved by the Union at another
company and increased safety equipment as well as dis-
charge of Cruz and Gresh. Castro said that the Union
would withdraw from the picture if the Company met the
stated demands. Pereira continued to reject the bargaining
demands, stating that he had no authority to negotiate.
Cruz and Pereira testified that sometime during the
morning of Tuesday, April 2, a representative of the Envi-
ronmental Quality Board (a local governmental agency)
drove onto the premises. When he emerged from his car
and started toward the trailer-office, he was confronted by
Serrano and other employees, who excitedly asked the vis-
itor what he was doing there. They blocked his way to the
office and forced him to return to his car. According to
Cruz, Serrano "told the man to take off his glasses that he
was going to hit him and told him he didn't have a damn
thing to do there." As the man was leaving, "[t]he group
and particularly Mr. Serrano told him that if he were to
return they would break his bones." The employees wrote
down the visitor's automobile registration and Serrano
"told him that if he returned they would tear up his car."
Castro was present throughout this time but said nothing.
On Wednesday morning , Jose Coppen, Jacobs' manager
of operations for Puerto Rico, accompanied Pereira to the
site . Stating that the Company agreed to meet all their de-
mands, Coppen asked why the employees were striking.
Serrano said that they had complained for 2 weeks and
nothing had been done. He complained that the Company
still had not produced "a written promise," although on
Tuesday Pereira had said he would bring one.
On the morning of April 3 a supplier of Jacobs delivered
a box. Serrano, with several other employees, grabbed the
box out of Cruz' hand, threw it back into the supplier's
truck, closed the truck door, and loudly ordered the driver
to leave. The driver readily complied.
On Wednesday afternoon, while Serrano was absent,
some employees, led by employee Andres Antiles-Crespo,
visited the office and offered to return to work if assured
that there would be no reprisals. Cruz agreed. The employ-
ees then asked to be paid for the days of the strike. Gresh
rejected that demand as setting a bad precedent. The em-
ployee group then went to consult their fellow workers.
When they returned to state that the strike would continue,
Gresh offered to pay for 1 of the 2 days. The employee
delegation again went to consult their colleagues. At this
point Serrano arrived. When informed of the negotiations,
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Serrano assumed control and asserted the sole right to set
the terms for returning to work. He said: "Nobody is going
back to work, we are going on with the strike." Thereupon
all the employees left the premises 7 According to Pereira,
Castro was present at the time but said nothing.
Cruz testified that on Wednesday and again on Thurs-
day Serrano left the project and later returned with some 8
to 12 men who, carrying pipes and sticks, mingled with the
striking employees. Serrano announced that he had
brought a "gang with [him] to back [him] up so that no one
will go to work."
On Thursday another supplier attempted to deliver ma-
terial. The truckdriver was "intercepted" by Serrano and
other employees. The driver left the premises when Serrano
said the employees were on strike and did not want any
deliveries made.
The strike continued. According to Cruz and Pereira, the
Company sought police protection on Thursday, and a po-
lice lieutenant and four or five police officers were present
at the project from Thursday afternoon until around 2 or
2:30 p.m. on Friday, after all the employees had been paid
and had left the premises.
On Friday, April 5, Pereira, accompanied by Harold
Spence, a representative of Jacobs' parent company, and
Eduardo R. Estrella, Esq., an attorney for Jacobs, again
visited the project. Pereira started to distribute among the
striking employees a pamphlet (or flyer) setting forth the
Company's commitment to meet all three of the employ-
ees' demands . In addition, the Company agreed to pay
wages for half the time of the strike. Serrano prevented
Pereira's giving pamphlets to all the employees. Serrano
"told the employees not to accept those promises, not to
rely on them, that the company was going to start taking
reprisals against the employees." At that point Castro ap-
proached and tried to talk with Pereira. When Pereira said
he had nothing to say to Castro, Castro then asked if Per-
eira wanted to fight. Pereira declined the invitation to fight
and repeated that he had nothing to discuss with Castro.
Attorney Estrella intervened, sent Pereira into the trailer-
office and proceeded to talk with Castro. The nature of
their discussion does not appear.
According to Cruz, on Saturday a final settlement of the
strike was negotiated by Pence, Pereira, and Estrella on
behalf of the Company, with Atiles for the employees. It
appears that both Serrano and Castro were present when
the strike settlement was negotiated but did not actively
participate in the negotiations.8
Castro testified that the Union did not become involved
until after the employees had decided to strike. After testi-
fying that he first heard of the strike on Monday evening
from the president of the Boilermakers Union, Castro then
said he first learned of it from Serrano on Monday af-
ternoon. Castro first visited the project on Tuesday, after
7 Pereira testified that one employee later visited the office and said that
he wanted to accept the Company's offer "but that the rest of the employees
were scared , afraid to come back to work." No finding is here made on the
basis of this hearsay evidence.
s Cruz testified that it would not be "legal" for the Company to negotiate
a settlement with Serrano He did not explain this statement . However, it is
clear that the Company refused to recognize the Union absent an election
and certification.
the strike had begun and Serrano had obtained union cards
from all the employees. It was also apparently after the
insurance company representative had spoken to the em-
ployees. Castro testified that when he first spoke to man-
agement representatives on Tuesday he said that the Union
would withdraw if the Company met the employees' de-
mands and Pereira promised to give an answer concerning
the medical insurance the next day. However, Castro also
testified that on Tuesday he told management that he had
union authorization cards from all the employees and de-
manded that Pereira negotiate a collective-bargaining
agreement . According to Castro, "[a]fter the strike started,
when they saw that the company did not want to settle as
to the medical plan, that they only promised things, the
workers decided that one of their demands would be recog-
nition of the union because they understood that this was
the only way they would be well represented and so that
the company would not continue making promises but
would execute a collective bargaining agreement ." Pereira
said he had no authority to negotiate a contract, but the
medical insurance question was under consideration and
Pereira would give an answer the next day. Castro further
testified that on the next day, Wednesday, Pereira did not
produce anything on the medical plan and thus the strike
continued. Castro testified that at that time, with all the
employees present, he was seeking "a solution to the imme-
diate demands in order to end the strike and if those de-
mands were met the people would come in to work, but
then we would have to sit down and negotiate a contract."
Castro testified that on Thursday Pereira "came with the
demands satisfactorily met, according to him, but they
were not in writing and the workers believed that if they
were not in writing they did not want them." So the work-
ers stayed out on strike. On Friday, Pereira produced a
writing, but since it was "not signed by hand," it was not
immediately accepted. According to Castro, the workers
said they would return to work on Monday if they received
a properly signed document and a guarantee against repri-
sals. The necessary papers were provided Monday morning
and the employees went back to work after Castro read to
them the Company's promise not to take reprisals.
Castro generally denied that there had been any violence
at the project while he was present. He also denied, though
somewhat vaguely, that Serrano had made any threats in
Castro's presence. Castro did not, and obviously could not,
deny or contradict the testimony by General Counsel's wit-
nesses as to specific conduct by Serrano when Castro was
not present.
The Union filed a representation petition that afternoon,
April 8. That petition has been held in abeyance pending
proceedings on the present charge, which was filed the
same day.
On April 17, Castro visited the project and talked to the
employees. When Gresh said that Castro should not talk to
the employees on working time , but should await their free
time , Castro replied that "he would talk to the employees
whenever he felt like it." When Gresh then ordered him off
the premises, Castro replied "that he would not get out,
that if anyone wanted to get him out they could come and
get him out." Castro added that "if anybody had intentions
to fight with him he would fight."
UNION NACIONAL DE TRABAJADORES
Around April 17 the Company decided to discharge Ser-
rano. Cruz and Gonzalez, a project engineer for Jacobs,
testified that on April 19 Serrano and another employee
entered the trailer-office carrying hammers. Serrano de-
manded to know the identity of the "scum" (or otherwise
derogatorily described person) who had decided to dis-
charge him. When Gresh acknowledged responsibility, Ser-
rano, raising the hammer in his right hand, said: "I'm
going to break up your face." According to Gonzalez, Ser-
rano said he was going to "kill" Gresh. The fellow employ-
ee restrained Serrano , who thereupon swung his left hand,
hitting Gresh and pushing him against the wall of the trail-
er. Serrano agitatedly shouted a variety of epithets until
some fellow employees, "hearing this commotion walked in
and grabbed him and got him out of the trailer." Outside,
after freeing himself from the restraint of his coworkers,
Serrano picked up a pipe and shouted: "Anyone who stops
me I'm going to bash in his head." Addressing Gresh and
Cruz, who were at the entrance of the trailer , Serrano said,
"I'm going to smash you car," whereupon he struck Cruz'
car with the pipe, doing an unspecified amount of damage
thereto.
At that point Gonzalez left the premises in his car to
seek police protection. (At the time there were no tele-
phone facilities at the project.) Some employees convinced
Serrano that, since he had struck Gresh and was thus sub-
ject to an assault charge, it would be the better part of
valor for him to leave. Serrano then handed in his equip-
ment, signed necessary papers, got his pay and left the
premises.
The Union later filed a charge alleging that Serrano had
been discharged in violation of Section 8(a)(3). The charge
was dismissed.
B. Discussion and Conclusions
Serrano , named as a respondent in the charge and com-
plaint, was represented by counsel in these proceedings.
However, as previously noted, he did not appear or testify
at the hearing. His unexplained failure to testify requires
an inference that his testimony would not support a de-
fense to the complaint. Because of Castro 's limited person-
al knowledge and sketchy examination, most of the testi-
mony of the General Counsel 's witnesses was
uncontradicted.
Respondents' counsel contends that , although most of
the General Counsel's evidence was uncontradicted, it does
not warrant a finding of threats or violence by Serrano or
Castro because it does not appear that any criminal pro-
ceedings were instituted against them . The presence or ab-
sence of criminal proceedings is not determinative . Wheth-
er Respondents committed unfair labor practices as alleged
in the complaint will be decided on the basis of the evi-
dence in this record.
Respondents ' counsel also argued that the General
Counsel failed to meet his burden of proof because he did
not present "any employees as witness to the fact that he
had been coerced or threatened or beaten by anybody."
The complaint does not allege any threats or violence
aimed directly against employees. The gravamen of the
complaint is that Respondent coerced employees and inter-
fered with their statutory rights by engaging in conduct in
the presence of employees which would have the necessary
tendency to restrain their freedom of action.
It is unnecessary for the General Counsel to establish as
a fact that any employees actually were coerced. The em-
ployees could hardly fail to get the message conveyed by
the presence in their midst of a "gang" of outsiders armed
with pipes and sticks, or Serrano's protestations, for exam-
ple, that he "knew how to cut faces."
Additionally, it should be observed again that Respon-
dents did not produce any employees as witnesses to con-
tradict the General Counsel's witnesses. It is reasonable to
assume that if the employees had voluntarily and freely
signed union authorization and membership application
cards, they might be willing witnesses on behalf of the Re-
spondents.
It is well established "that threats made against others in
the presence of strikers coerced the strikers in violation of
the Act." Bonnaz Embroideries Tucking, etc., Local 66 (V. &
D. Machine Embroidery Co.), 134 NLRB 879, 880 (1961),
citing International Woodworkers of America et al. (W. T.
Smith Lumber Company), 116 NLRB 507, 508 (1956), enfd.
243 F.2d 745 (C.A. 5 1957). See also, e.g., Local 3, Interna-
tional Brotherhood of Electrical Workers (New Power Wire
& Electric Corp.), 144 NLRB 1089, 1092 (1963), enfd. 340
F.2d 71 (C.A. 2 (1965); Union Nacional de Trabajadores et
al. (Surgical Appliances Mfg., Inc.), 203 NLRB 106 (1973).
The record as a whole inevitably leads to the inference
that Respondents' course of conduct did seriously interfere
with the employees' free exercise of their statutorily guar-
anteed rights. It will be recalled that, according to Castro,
he learned about the strike on Monday afternoon, from
Serrano. No explanation was forthcoming as to why the
employees had elected to go on strike as of Tuesday morn-
ing to support their demand or for improved medical insur-
ance when the Company had already promised that an
insurance company representative would talk to the em-
ployees on Tuesday. Both Castro and Pereira testified that
on Tuesday Castro said that the Union would withdraw if
the Company met the employees' demands. Such a com-
mitment by the Union would have been, to say the least,
somewhat unusual if the employees had freely executed
their membership application and authorization cards. As
previously set forth, Castro testified that the employees de-
cided to demand recognition of the Union when "they saw
that the company did not want to settle as to the medical
plan." But it is not apparent when such alleged "decision"
was made. The very earliest it could have been made with
any semblance of rationality was Wednesday, when, ac-
cording to Castro, the Company failed to present the
promised detail of an improved medical insurance pro-
gram . Yet Wednesday afternoon the employees, through a
delegation headed by employee Atiles, sought to negotiate
an end of the strike. The negotiations were aborted by
Serrano's bellicose conduct. Castro also testified that he
and Serrano had demanded recognition and bargaining
with the Union on Tuesday, the first day of the strike. The
evidence as a whole suggests that the apparently premature
strike may have been instigated by Serrano in consultation
with Castro. In any event, even if the strike was a sponta-
neous act by the employees, the record leaves no doubt
410 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that it was prolonged by Serrano 's threatening and coer-
cive conduct.
Respondents maintain that the evidence does not estab-
lish that Serrano was acting as an agent of Respondent
Union . So far as appears , he was not an officer or a paid
employee of the Union. There was no direct evidence that
he was ever formally or expressly appointed as an "agent"
of the Union? But that does not dispose of the "agency"
issue , under the Act.
Serrano and his brother, Efrain Serrano, had both been
working for Catalytic Industrial Maintenance Co., Inc., at
a construction project for Merck , Shape & Dohme Quim-
cals de Puerto Rico , Inc., in November and December
1973, when Respondent Union conducted a strike. In an
unfair labor practice proceeding against the Union arising
out of the Catalytic-Merck strike, it was alleged in the com-
plaint and admitted in the Union's answer that both the
Serrano brothers , members of the Catalytic organizing
committee , were "agents" of the Union . Cases 24-CC-168
and 24-CC-169 and 24-CB-877 and 24-CB-878, awaiting
decision by Administrative Law Judge Sidney D. Goldberg
[219 NLRB No. 66 and 219 NLRB No. 67]. In the present
case, Castro conceded that Serrano had been the Union's
"contact" at Catalytic and played the same role at Jacobs.
While at Catalytic, Serrano had acquired a supply of
blank union authorization cards . The evidence is undisput-
ed that he had such cards executed by Jacobs' employees
on Tuesday morning, the first day of the strike. But on
Monday, the day before, Serrano had informed Castro of
the strike . It is inconceivable that Serrano had not at least
by Monday afternoon obtained Castro's approval and as-
surances that the Union would sponsor the strike. It is
equally inconceivable that Castro and Serrano failed to
agree that Serrano would obtain union authorization cards
from the employees.
Thereafter , throughout the strike , Serrano served as the
principal spokesman for the employees. And, as Castro tes-
tified, "when you talk for the employees you talk for the
union ." Additionally, Cruz credibly testified that Serrano
informed management representatives that he was a union
agent . Such statements were made in the presence of Cas-
tro, who , so far as appears , gave no indication of dis-
agreement.
The evidence as a whole establishes that Serrano was, in
effect, the Union "resident agent" at the Jacobs project in
Arecibo . As the Union's agent , Serrano directed the course
of the strike, under the general guidance of Castro . Castro
did nothing to prevent or restrain Serrano's bellicosity. On
the contrary , at least on the occasion when Serrano threat-
ened the quality control board 's representative and pre-
vented his conferring with management personnel , Castro
was present and made no "effort to disassociate the
Union 's efforts from the threats ." Food Store Employees
Union, Local 347 (Davis Wholesale Co.), 165 NLRB 264,
268 (1967). Indeed , as stated above , Castro himself invited
Pereira to fight on April 5, and on April 17, threatened to
fight anybody who attempted to prevent his talking to Ja-
cobs employees in work areas whenever he chose . In testi-
fying, Castro gave the clear impression that he deemed vir-
tually any conduct , legal or illegal , to be justified to further
the employees' and the Union 's interests.
On all the evidence , it is concluded that during the strike
Serrano was acting as the Union's agent within the mean-
ing of Section 2 ( 13) of the Act. Accordingly, the Union is
responsible for his coercive and threatening conduct. Addi-
tionally , since he was acting as an agent of the Union,
Serrano is personally guilty of violating Section 8 (b)(1)(A)
of the Act.
On April 17, Castro, clearly acting as an agent of the
Union , threatened to fight anybody who attempted to pre-
vent his speaking with the employees whenever he chose. It
is thus clear that the Union 's pattern of coercive and
threatening conduct was a continuing one. It is concluded
that on April 17 the Union, through Castro, violated Sec-
tion 8(b)(1)(A) of the Act.
The evidence also establishes that on April 17 and 19
Serrano threatened and assaulted management representa-
tives within view of other employees . So far as appears,
when he threatened Gresh with a hammer and then shoved
him, Serrano was reacting to his own discharge rather than
specifically furthering the Union 's interests . However, the
Union filed a charge with the Board concerning Serrano's
discharge and there is no suggestion that the Union disap-
proved or attempted to disassociate itself from Serrano's
continued belligerency . Serrano's conduct in that period
was apparently condoned by the Union, and part of the
continuing general pattern of coercion and restraint.
CONCLUSIONS OF LAW
1. Jacobs Constructors Company of Puerto Rico is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Union Nacional de Trabajadores is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. Respondent Alcides Serrano is an agent of Respon-
dent Union within the meaning of Section 2 ( 13) of the Act.
4. By the acts and conduct described in section II,
above, Respondents have restrained and coerced , and are
restraining and coercing , employees in the exercise of the
rights guaranteed them under Section 7 of the Act and
thereby have engaged in and are engaging in unfair labor
practices within the meaning of Section 8 (b)(1)(A) of the
Act.
9 In this connection , on direct examination of Respondents ' counsel, Cas-
tro testified:
Q. Do you know if Alcides Serrano has ever been named representa-
tive, or organizer , or officer of the union?
A. No, he has never been a member of the union in any category.
Q. Did you while being there give Mr. Serrano any authority to act
in the name of the union?
A. No, sir
THE REMEDY
Having found that Respondents have engaged in and are
engaging in unfair labor practices within the meaning of
Section 8(b)(1)(A) of the Act , I shall recommend that each
Respondent be ordered to cease and desist therefrom and
take certain affirmative action designed to effectuate the
policies of the Act.
UNION NACIONAL DE TRABAJADORES 411
The Charging Party, however , urges that remedial action
be required in addition to the customary provisions. In
support of its request, the Charging Party asks that official
notice be taken of the following additional proceedings,
which allegedly establish the Respondent Union's "procliv-
ity" for violating the Act:
Union Nacional de Trabajadores ( Surgical Applicances
Mfg., Inc.), supra, 203 NLRB 106 (1973). Like the present
case, that case concerned threats and violence engaged in
by the Union and Acosta in November 1972 for the pur-
pose of preventing employees ' refusing to participate in a
strike . Upon the Respondents ' default, the Board on April
23, 1973, issued an order against both the Union and Acos-
ta restraining violations essentially similar to those found
in the present case.
Union Nacional de Trabajadores ( Constructions Werl,
Inc.), Cases 24-CB-861, 24-CB-863 , and 24-CC-163. Case
24-CB-861 (which had been consolidated with Case 24-
CC-163) [219 NLRB No. 66] involved the Union' s alleged
violation of Section 8(d) of the Act by striking without
giving statutorily required notices . A temporary restraining
order and then , after hearing , a preliminary injunction
were granted under Section 10(j) of the Act. (D.P.R. Civil
No. 746-73.) Proceedings were later instituted against Re-
spondent for contempt of the injunction . The Board pro-
ceeding was ended by a stipulation and consent order
(DS-522) and judgment entered by the court of appeals
on March 15, 1974 (No. 74-1066) [502 F.2d 1160 (C.A. 1,
1974)]. Case 24-CB-863 involved alleged threats and vi-
olence during a strike . This case also was ended by a stipu-
lation and consent order (DS-521) and judgment of en-
forcement by the court of appeals (No. 74-1054, March 7,
1974) [502 F.2d 1160 (C.A. 1, 1974)].
In referring to these cases , the Charging Party fails to
note that the Board orders enforced by the courts appar-
ently contain nonadmission clauses. The stipulations for
settlement set forth the text of the orders which it is agreed
that "the Board may enter . . . forthwith." The text of the
orders so prescribed contains a statement that "it is under-
stood that the signing of this Stipulation by the Respon-
dent union does not constitute an admission that it has
violated the Act." While the Board Orders (DS-522 and
DS-523) do not themselves contain express nonadmission
clauses, they do provide that the stipulations are "hereby
approved and made a part of the record ." Additionally,
neither the stipulations nor the orders contain any factual
statements or findings that violations have been commit-
ted.
Union Nacional de Trabajadores (Catalytic Industrial
Maintenance Co., et al.), supra, Cases 24-CC-168, 24-
CC-169 24-CB-877, and 24-CB-878. [219 NLRB No. 66
and 219 NLRB No. 67.] In these cases, the complaint al-
leged , inter alia, violence and threats in the course of a
strike commencing on or about November 20, 1973, and
continuing until December 1, 1973, when it was restrained
and then enjoined by a United States District Court.
Compton v. Union National de Trabajadores, D.P.R., Civil
No. 1060-73. In the Board proceeding , a settlement agree-
ment was reached by the General Counsel and the Respon-
dents . However , upon objection of the Charging Parties,
Administrative Law Judge Goldberg rejected the settle-
ment . The case was heard in May 1974 and is now awaiting
decision.
Union Nacional de Trabajadores (Macal Container Corp.),
Case 24-CB-888 [219 NLRB No. 67]. The complaint in the
Macal case alleges numerous threats and acts of violence
by Respondent Union and its agents , including Castro, in
the course of a strike commencing on April 23 , 1974, with-
in a week after Castro is here found to have made threats
in the present case . The Macal case was heard by Adminis-
trative Law Judge Eugene E. Dixon on August 6 and 7,
1974, and is now awaiting decision.
The Board has held that neither injunctions under Sec-
tion 10(j) nor consent orders and judgments of enforce-
ment pursuant to settlement agreements constitute evi-
dence of a "proclivity" to violate the Act. Teamsters, Local
70 (C & T Trucking Co.), 191 NLRB 11 (1971). A fortiori
settlement agreements which , like those in the Werl cases,
contain "nonadmission" clauses cannot establish a "pro-
clivity." Similarly, under C & T Trucking, a "proclivity" on
the part of Respondent Union to violate the Act would not
be shown by judgments holding it in contempt of a 10(j)
injunction.
Thus , in the present case we are left with only the Surgi-
cal Appliances Mfg., Inc.. supra, default order against Re-
spondent and the findings in the present case as the basis
for finding a "proclivity" on Respondent 's part to violate
the Act. In C & T Trucking the Board held that a broad
cease-and-desist order was not appropriate despite " 13 set-
tlement agreements , one Board decision , one Trial
Examiner's decision to which no exceptions were filed and
another which is currently before the Board , a civil and
criminal contempt adjudication in one case , and a prelimi-
nary injunction in another , all involving the Respondent
herein ." On the other hand , the Board has found a "pro-
clivity" sufficient to warrant a broad order in at least one
case where there was evidence of only one prior violation
by the respondent union . Teamsters, Chauffeurs, Helpers
and Taxicab Drivers Local 327 (Hartmann Luggage Compa-
ny), 173 NLRB 1403 (1968 ). Although it held the Board's
Order insufficiently specific , the Court of Appeals for the
Sixth Circuit expressly held that there was sufficient evi-
dence to support the Board 's "proclivity" finding. (419
F.2d 1282, 1284.)
While C & T Trucking reflects a restrictive view and
postdates Hartmann Luggage, it is distinguishable from the
present case in a major respect . In C & T Trucking the
violations involved were of a different type from those in-
volved in the earlier cases , whereas the violations found in
the present case are of the same type as and very similar to
those which the Union was found to have committed in the
Surgical Appliances case . Accordingly , I find that Respon-
dent Union has demonstrated a "proclivity" for engaging
in the type of coercive conduct shown in the present case.
In any event , without reference to any other proceed-
ings , the evidence in the case sub judice may in itself estab-
lish the need for extraordinary remedies. As recently said
in Local Union No. 69, Sheet Metal Workers (Wind Heating
Company), 209 NLRB 875 (1974), fn. 2: "The Board has
long held that a broad remedial order is appropriate when-
ever a proclivity to violate the Act is established either by
facts compelled by a particular case . . . or by prior Board
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Decision against the respondent at bar based upon similar
unlawful conduct in the past." In the present hearing Acos-
ta and Castro made it clear that , as agents for the Union,
they held the Act and its administration in contempt. For
example , Acosta, called as an adverse witness by the Gen-
eral Counsel , proclaimed : "In respect to this the only thing
we have to say is that these are fabricated cases and we do
not wish to continue with this spectacle ." Castro also pro-
tested that he "does not recognize the authority of the law
or of the Board that administers the law ." He testified fur-
ther:
The main [function of an organizer for Respondent
Union] is to see that the workers' rights are respected,
that the laws that are in effect in this country be ap-
plied in a manner favorable to the workers and when
they cannot be they should be violated.
s s s s
First of all we [Union organizers ] explain to [the
workers] the unfairness of the Taft-Hartley Law which
represents a straight jacket for the workers because it
does not permit the normal development of organiza-
tion ; that law represents a whole bureaucratic system
which only serves to delay the organization process
and permits lawyers like [the Company 's attorney] and
companies like Jacobs [to] go over the wishes of the
majority of the employees in a shop.
And toward the end of the hearing Castro persisted again
in making sure "that people will understand that we are
here against our will, that we do not acknowledge any au-
thority of the Board over us." These purely gratuitous
protestations , it should be borne in mind , were in lieu of
any attempt to provide substantial or significant evidence
in defense against the factual allegations of the complaint.
On the basis of the pronouncements and demeanor of
Acosta and Castro , I have no hesitancy in concluding that
extraordinary remedies are called for to provide any rea-
sonable hope of preventing further violations of the Act by
Respondent Union and its various agents, including Re-
spondent Serrano . Teamsters, Chauffeurs, Warehousemen
and Helpers Local 85 (West Transportation, Inc.), 180
NLRB 709, 717-718 ( 1970). With this in mind , I turn to
consideration of the specific remedies requested by the
Charging Party.
1. Reimbursement of the Charging Party's and the General
Counsel's Expenses: As the Charging Party recognizes, it is
a "general and well-established principle that litigation ex-
penses are ordinarily not recoverable ." Heck's, Inc., 191
NLRB 886, 889 , reversed in pertinent part sub nom. Food
Store Employees, Local 347 v. N.L.R . B., 476 F .2d 546 (C.A.
D.C. 1973), remanded 417 U.S . 1 (1973). On the other
hand , imposition of such costs is proper "in order to dis-
courage future frivolous litigation , to effectuate the policies
of the Act, and to serve the public interest ." Tiidee Prod-
ucts, Inc., 194 NLRB 1234 , 1236 (1972).
In view of Respondent's agents' proclaimed refusal to
"acknowledge" the "authority" of the Act and the Board
that administers it and their position that the law "should
be violated" if it conflicts with the Union's view as to the
best interests of the "workers ," there is ample reason to
believe that only a substantial and immediate monetary
burden will serve to deter further resort to violence and
threats of violence to impose the Union 's will on employees
and employers alike. Thus , it may well be said that assess-
ment of such costs is clearly necessary to effectutate the
policies of the Act and serve the public interest.
There is, however , serious question as to whether Re-
spondents' litigating this case may be termed "frivolous"
within the Tiidee decision . Respondents ' failure to present
any substantial defense and Respondent Serrano's unex-
plained failure to testify certainly suggest that Respondents
were not litigating in good faith . Acosta's and Castro's
statements strongly reinforce this impression . On the other
hand , respondents generally have the right to require that
the General Counsel be put to his proof initially. And, de-
spite Respondents' failure to present any evidence contra-
dicting the plethora of evidence against Serrano , there was
some plausible basis for Respondents ' argument that he
was not an "agent" of the Union . Accordingly , while the
matter is not entirely free from doubt, it is concluded that
in the present case it would not be appropriate at this time
to depart from the general rule against assessment of the
costs of litigation.10
2. A broad order: While loudly proclaiming great con-
cern for the plight of workers , the Union , through its
agents , has resorted to brute force and threats of violence
to deprive employees of the freedoms which the Act is de-
signed to protect . As set forth, Castro stated the Union's
position that laws "should be violated" when they cannot
be applied in the way the Union believes is "favorable to
the workers ." And the Union's conduct in the present
case " makes it clear that the Union does not consider as
"favorable to the workers" any application of the law
which permits them to choose not to honor a strike sup-
ported by Respondent Union . The present record , there-
fore, provides strong reason for fearing or predicting that
Respondent will embark upon a similar course of strong-
arm tactics to enforce any strike it might call at any time in
the future . Accordingly , a broad cease-and-desist order is
here appropriate . See, e .g., N.L.R. B. v. Teamsters, Local
327 [Hartmann Luggage Co .], 419 F .2d 1282 , 1884 (C.A. 6,
1970); N.L.R.B. v . Local 138, 138A and 138B, International
Unions of Operating Engineers [Cafasso Lathing & Plas-
tering, Inc.], 377 F .2d 528 (C.A. 2, 1967). As suggested by
the Charging Party , the order will be limited geographically
to Puerto Rico.
3. Lost Wages: The Charging Party requests that Re-
spondents he required to make compensation for wages
lost by employees "who were prevented from entering to
work because of the Respondents ' violent conduct."
It is perhaps sufficient here to point out , as the Charging
10 No opinion is here expressed as to whether such remedy would be
appropriate if the litigation were to be further extended . Presumably the
Board will be at liberty to impose such a requirement at a later stage of the
proceedings (Union de Tronquistas de Puerto Rico, etc. (F. F. Instrument Cor-
poration), 210 NLRB 1040 (1974) ), particularly if the pending Catalytic and
Macal cases should result in orders against the Union and thus establish a
broader "pattern of repeated unlawful actions." Orion Corp., 210 NLRB 633
(1974).
1' As well as in the Surgical Appliances case , supra.
UNION NACIONAL DE TRABAJADORES
Party apparently recognizes , thalt to date the Board has
declined to grant any such remedy in strike violence cases.
Union de Tronquistas de Puerto Rico , etc. (Lock Joint Pipe &
Co. of Puerto Rico), 202 NLRB 43 ( 1973). Contrary to the
Charging Party's contention , I understand Lock Joint as
totally rejecting a backpay remedy in cases like this. Being
bound by Board rulings , I have no authority to consider
the Charging Party's arguments in favor of reconsidering
the Lock Joint rule."
As already indicated , I find that effectuation of the poli-
cies of the Act requires that special measures be taken to
assure employees of their freedom to refrain from support-
ing the Union if they so desire. See Union de Tronquistas de
Puerto Rico, etc. (F.F. Instrument Corporation), supra, and
cases there cited . The fundamental condition for the pro-
tection of employee rights is the employees ' knowledge of
those rights . The individual employee must have assurance
12 No opinion is here expressed as to whether there is sufficient probative
evidence to warrant a finding that any employees did lose any wages as a
result of the Union's restraint or coercion. Cf Union de Tronquistas de Puer-
to Rico, etc. (F.F. Instrument Corporation), supra
413
that their guaranteed freedoms will be protected against
incursions by unions as well as by employers . In the cir-
cumstances of the present case , involving a small project in
a somewhat isolated location , it appears necessary that no-
tice be sent to each individual employee . And, since Jacobs
apparently operates numerous relatively small projects, it
appears wise , as a preventive measure , to require that all
Jacobs ' employees be given appropriate assurance that
their rights will be protected . Accordingly , I shall recom-
mend that Respondents be required to send copies of the
prescribed notice to all employees of Jacobs Constructors
in Puerto Rico.
As is customary , I shall also recommend that Respon-
dents be required to provide copies of the prescribed notice
for posting by Jacobs . Additionally , since it has been found
that Respondents are likely to engage in similar miscon-
duct with respect to other employees , I shall provide that
sufficient copies of the notice be made available to the
Regional Director to furnish to other employers if and
when it should appear that Respondent Union is engaging
in or about to engage in similar activity with respect to the
employees of such other employers.
[Recommended Order omitted from publication.]