Warner Brothers Co. of P. R., Inc.

National Labor Relations Board - Board Decisions

Jul 15, 1955

113 N.L.R.B. 177 (N.L.R.B. 1955)

WARNER BROTHERS COMPANY OF P. R., INC. 177
Warner Brothers Company of P. R., Inc. and American Federa-
tion of Labor. Case No. 04-CA-52?. July 15,1955
DECISION AND ORDER
On February 2, 1955, Trial Examiner James A. Shaw issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found that
the Respondent had not engaged in certain other unfair labor prac-
tices alleged in the complaint. Thereafter, the Respondent filed ex-
ceptions to the Intermediate Report, together with a supporting brief.'
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and brief of the Respondent, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, with the exceptions, modi-
fications, and additions noted below : a
1. The Respondent has excepted to the credibility findings of the
Trial Examiner. The Trial Examiner based his credibility findings
in part on his observation of the witnesses and their demeanor while
testifying. As demeanor is a factor of consequence in resolving issues
of credibility, and as the Trial Examiner, but not the Board, has had
the advantage of observing the witnesses while they testified, it is our
' The Respondent also filed a motion to reopen the record for the pi imary purpose of
showing, in connection with the so -called "Dubinsky incident ," that there was no refer-
ence to a contemplated visit by Dubinsky to Puerto Rico to organize the needlework indus-
try on the first page of the November 19, 1953, edition of the newspaper El Mundo. In
its supplemental motion in this respect , however , the Respondent in effect concedes, as
asserted by the General Counsel in his memorandum in opposition to the Respondent's
motion, that on page 3 of the November 19 issue of El Mundo there appeared an article
stating that a representative of Dubinsky had arrived in Puerto Rico for the purpose of
organizing the needlework industry and that this individual was willing to meet with
all interested workers at the Candado Hotel
Even if evidence of the type which the parties would adduce at a reopened heating had
been part of the record before us , it would not have caused us to alter any of our findings
herein. In view thereof , apart from other considerations , the Respondent 's motion to
reopen the record is hereby denied.
2 The Intermediate Report contains certain misstatements of fact and inadvertences,
none of which affects our ultimate conclusions herein . For example , the Trial Examiner
found that Asuncion Aponte preceded Lloyd B . Walker as general manager of the Re-
spondent 's plant whereas the record shows that Walker was the plant 's manager from the
time it commenced operations and that Aponte was assistant manager for some time after
the plant opened The Trial Examiner also found that complainant Ramos' fist period
of employment with the Respondent in 1953 was terminated on August 7 whereas it
appears from the testimony credited by him , considered in the light of the entire record,
that it was terminated on August 13.
As no exception has been filed to the Trial Examiner 's failure to find surveillance on
the facts of this case , the Board adopts the Trial Examiner's conclusion in Ibis respect
without thereby passing upon its merits
113 NLRB No. 22.
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
policy to attach great weight to the Trial Examiner's credibility find-
ings insofar as they are based on demeanor. Hence, we do not over-
rule a Trial Examiner's resolution of credibility except where the clear
preponderance of all the relevant evidence convinces us that the Trial
Examiner's resolution was incorrect.' No such conclusion is war-
ranted in this case with respect to the resolutions of credibility made
by the Trial Examiner in arriving at his ultimate conclusions. We
therefore adopt those credibility findings.
2. The Trial Examiner found that Paula Davila Ramos, Carmen
Gloria Quinones, and Matilde Fuentes were discriminatorily dis-
charged and that the Respondent thereby violated Section 8 (a) (3)
and (1) of the Act. We agree with this finding, for we are persuaded
by the record herein that all three complainants were discharged be-
cause of their protected concerted activity in connection with the
"Dubinsky incident" on November 20, 1953. Such concerted activity
under the circumstances of this case was concerted activity for the
mutual aid or protection of the employees involved, participation in
which is protected by Section 7 of the Act. A discharge for having
engaged in such activity violates Section 8 (a) (1) of the Act. Be-
cause this activity represented an initial step by the employees in
securing union representation and the discharges therefor an attempt
by the Respondent to thwart the unionization of its plant, we find that
the Respondent, by discharging Ramos, Quinones, and Fuentes, also
violated Section 8 (a) (3) of the Act. In any event, whether the dis-
charges are viewed as violations of Section 8 (a) (1) or of Section
8 (a) (3), we find it is necessary to order the reinstatement of, and
award back pay to, the discriminatees, as recommended by the Trial
Examiner, in order to effectuate the policies of the Act.
As indicated above, we reject the Respondent's contention that a
slowdown by Ramos and Quinones "possibly along in the middle of
the week" ending November 20, 1953, precipitated their discharge.
While the record shows some drop in production on the part of Ramos
and Quinones during the week in question, it appears from the testi-
mony of Manager Walker, who terminated the employment of all
the complainants, that this drop in production was not regarded by
the Respondent as a substantial one and that the production of the
other employees engaged in similar work had also fallen off during the
same period. Walker also conceded that the complainants were not
responsible for the decline in production of the other employees, and
there is no showing that any of the employees, including Ramos and
Quinones, had engaged in a deliberate slowdown. When, in addition
to the foregoing, the facts and circumstances reported in the Inter-
mediate Report are taken into account, including the reference to the
complainants' November 20 activity pertaining to the unionization
3Standaid Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F. 2d 302 (C. A. 3).
WARNER BROTHERS COMPANY OF P. R., INC. 179
of the plant implicit in the statements made by Walker and Supervisor
Mendez on the occasion of the discharges, the conclusion we have
reached is warranted .4
3. We agree also with the Trial Examiner's finding that Benita
Suarez was discriminatorily discharged on December 4, 1953, in viola-
tion of Section 8 (a) (3) and (1) of the Act.
According to Manager Walker, the motivating reason for the dis-
charge of Suarez was that she gave conflicting reasons for her absence
from work on December 3. On the basis of the entire record, however,
we find that this reason is a mere pretext and that Suarez was in fact
discharged because of her adherence to the Union. That this is so is
underscored by the absence of credible testimony to support the claim
that Suarez gave conflicting reasons for her absence on December 3,
Walker's warning to the employees in his speech on December 3 not
to sign the papers to which Ramos, Quinones, and Fuentes were solicit-
ing signatures in Guaynabo,5 Walker's observation of Suarez in the
company of Ramos in Guaynabo on December 3, and the discharge
of Suarez upon her return to work on December 4, just after Suarez
admitted to Supervisor Mendez that she had signed a union card.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Warner Brothers
Company of P. R., Inc., Guaynabo, Puerto Rico, its officers, agents,
successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in American Federation of Labor,
or in any other labor organization of its employees, by discharging any
of its employees or by otherwise discriminating in regard to the hire,
tenure, or any term or condition of employment of its employees.
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to form
4 This is so even if, as we find , contrary to the Trial Examiner , no significance can be
attached to the presence of Isabel Reyes during the Ramos ' November 20 speech. In this
connection we note that the record contains , in addition to the testimony set forth in the
Intermediate Report, testimony by complainant Fuentes, who was considered a credible
witness by the Tual Examiner, that during the afternoon of November 20, following the
"Dubinsky incident," Supervisor Mendez warned her not to "talk about unions and revo-
lutionize the girls here in the plant because if the American [a clear reference to Manager
Walker] hears about it he will discharge you "
5 At the time Ramos, Quinones , and Fuentes were in Guaynabo soliciting signatures to
applications for premiership in the Union Like the Trial Examiner , we find that the
Respondent violated Section 8 (a) (1) of the Act by Walker's speech to the employees in
which he warned them that , "God forbid that . . . [you] should sign those papers"
Implicit in this warning under the circumstances is the clear threat of reprisal, and we
so find. Accordingly, the Board's adoption of the Trial Examiner's recommendation for
the dismissal of the allegations in the complaint respecting threats of economic or other
reprisals relates, of course , only to other allegations which were not proved.
180 ,ECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor organizations, to join or assist American Federation of Labor,
or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in other concerted
activities for the purposes of collective bargaining or other mutual aid
or protection, or to refrain from any or all of such activities, except
to the extent that such right may be affected by an agreement requir-
ing membership in a labor organization as a condition of employment,
as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Paula Davila Ramos, Matilde Fuentes, Carmen Gloria
Quinones, and Benita Suarez immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and make them whole
for any loss of pay they may have suffered as a result of the discrimina-
tion against them, in the manner set forth in the section of the Inter-
mediate Report entitled "The Remedy."
(b) Upon request make available to the Board or its agents, for
examination and copying, all pertinent records necessary to analyze
the amount of back pay due under this Order.
(c) Post at its plant at Guaynabo, Puerto Rico, copies of the notice
attached hereto marked "Appendix A." 6 Copies of said notice, to be
furnished by the Regional Director for the Twenty-fourth Region,
shall, after being duly signed by the Respondent's authorized repre-
sentative, be posted by the Respondent immediately upon receipt
thereof and maintained by it for sixty (60) consecutive days there-
after in conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be taken to
insure that said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for the Twenty-fourth Region in
writing, within ten (10) days from the date of this Order, what steps
it has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges viola-
tions of the Act different from those found in this Decision and Order,
be, and it hereby is, dismissed.
6 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Ordei" the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WARNER BROTHERS COMPANY OF P. R., INC. 181
WE WILL NOT discourage membership in American Federation
of Labor, or in any other labor organization, by discharging any
of our employees or by otherwise discriminating in regard to the
hire, tenure, or any term or condition of employment of any of our
employees.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self -organi-
zation, to form labor organizations, to join or assist American
Federation of Labor, or any other labor organization, to bargain
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
any or all of such activities, except to the extent that such right
may be affected by an agreement requiring membership in a
labor organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act.
WE WILL offer to the employees named below immediate and
full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to any seniority or other rights and
privileges previously enjoyed, and we will make them whole for
any loss of pay suffered as a result of the discrimination against
them :
Paula Davila Ramos Matilde Fuentes
Carmen Gloria Quinones Benita Suarez
All our employees are free to become, remain, or to refrain from
becoming or remaining, members of the above-named Union, or any
other labor organization, except to the extent that this right may be
affected by an agreement in conformity with Section 8 (a) (3) of the
Act. We will not discriminate in regard to hire or tenure of em-
ployment or any term or condition of employment against any em-
ployee because of membership in or activity on behalf of any such
labor organization.
WARNER BROTHERS COMPANY OF P. R., INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof, and
must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges duly filed by the American Federation of Labor , herein called the
Union , the General Counsel of the National Labor Relations Board, by the Re-
gional Director for the Twenty-fourth Region ( Santurce , Puerto Rico ), issued a
182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complaint against Warner Brothers Company of P. R., Inc., herein called the Re-
spondent , alleging that Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8 (a) (1) and ( 3) and Section 2 (6) and
(7) of the National Labor Relations Act, as amended , 61 Stat. 136, herein called the
Act. Copies of the charges , complaint , and notice of hearing were duly served upon
Respondent.
With respect to the unfair labor practices , the complaint alleged, in substance,
that since on or about November 12, 1953, by conduct specially pleaded Respond-
ent interfered with , restrained, and coerced its employees in the exercise of rights
guaranteed in Section 7 of the Act and in violation of Section 8 (a) (1) thereof.
The complaint further alleged that on or about November 20, 1953, Respondent
discharged Paula Davila Ramos, on November 23, 1953, discharged Matilde Fuentes
and Carmen Gloria Quinones , and on December 4, 1953, discharged Benita Suarez,
and that all of said discharges were made because the named employees were
members of and engaged in activities in behalf of the Union and because said
employees engaged in concerted activities with other employees for the purpose
of collective bargaining and other mutual aid and protection . After a request for
an extension of time to file its answer , which was granted, a request for a bill of
particular which was granted in part and denied in part by Trial Examiner Arthur
Leff on August 3, 1954 , the Respondent filed its answer on August 12, 1954. By
its answer it admitted its corporate structure , certain facts as regards its business
operations , that it was engaged in commerce within the meaning of Section 2 (6)
and (7 ) of the Act , and that the Charging Union is a labor organization within
the meaning of Section 2 (5) of the Act, it thereafter specifically denied that it has
engaged in any of the alleged unfair labor practices . As a further plea it alleged
that the "Board has no jurisdiction in this case ," and thereafter prayed that the
complaint be dismissed.
Pursuant to notice , a hearing was held in Santurce , Puerto Rico, on September
21, 22, and 23 , 1954, before the duly designated Trial Examiner , at which hearing
all parties were represented by counsel . Full opportunity to be heard , to examine
and cross -examine witnesses , to introduce evidence bearing upon the issues, and
to present oral argument and briefs was afforded all parties . At the completion
of the taking of testimony , and the parties had rested their respective cases, the
General Counsel requested that the Respondent furnish him with the timecards of
25 of its employees for their entire tenure of employment . After full discussion on
the record , the Trial Examiner agreed to adjourn the hearing sine die to permit the
Respondent to prepare and present to the General Counsel the requested time-
cards. At the same time the Trial Examiner agreed to accept them in evidence
upon their presentation to him by the General Counsel as exhibits in support of his
theory of the case, of which more anon below. The Trial Examiner also agreed
to permit all parties to file briefs from a day certain predicated upon his formal order
closing the hearing herein . Thereafter on or about November 4, 1954, the Trial
Examiner received the exhibits referred to above and after marking them for
identification as General Counsel 's Exhibits Nos. 19-A to 19-Y , inclusive, and 20,
admitted them in evidence and issued his formal order closing the hearing herein
on November 9, 1954. At the same time he granted the parties 20 days from
the receipt of said order to file briefs in support of their respective positions. Only
counsel for the Respondent took advantage of this opportunity , and a brief from
him was filed with the Trial Examiner on or about December 20, 1954. It has been
given due consideration.
From his observation of the witnesses, and upon the entire record in the case,
the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The record shows that the Respondent is a corporation organized and existing
by virtue of the laws of the Commonwealth of Puerto Rico, with its principal
office and place of business located in Guaynabo , Puerto Rico, where it is now and
has been at all times material herein continuously engaged in the manufacture of
brassieres as a wholly owned subsidiary of Warner Brothers Company of Bridge-
port, Connecticut . In the course and conduct of its business operations at its
Guaynabo plant it causes and has continuously caused materials , supplies, and
equipment to be purchased , transported , and delivered in interstate commerce
from and through States and Territories of the United States to its Guaynabo plant
valued in excess of $200 ,000 annually , and causes and has continuously caused
its entire output of finished materials , valued in excess of $300,000 annually, to be
WARNER BROTHERS COMPANY OF P. R., INC. 183
sold, transported, and delivered in interstate commerce from its Guaynabo plant
to and through States and Territories of the United States to its parent corpora-
tion in Connecticut for redistribution to customers throughout the several States
of the United States.
In view of the foregoing the Trial Examiner is convinced and finds that the
Respondent herein is engaged in commerce within the meaning of Section 2 (6) and
(7) of the Act; and that its business operations meet the standards recently an-
nounced by the Board for asserting jurisdiction in the several States and Territories of
the United States.
II. THE LABOR ORGANIZATIONS INVOLVED
American Fedeiation of Labor is a labor organization within the meaning of
Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Foreword
As indicated above the Respondent is engaged in the manufacture of brassieres.
At its plant in Guaynabo, Puerto Rico, as the Trial Examiner interprets the record,
the parent company. Warner Brothers Company of Bridgeport, Connecticut, started
its operations in Puerto Rico with the aid and assistance of the "Industrial Develop-
ment Corporation of the Government of Puerto Rico," herein referred to as "Fo-
mento." Its factory building is located about a quarter of a mile from Guaynabo.
The building was elected by "Fomento," who in turn leased it to the Respondent.
The factory building contains around 11,800 square feet and is approximately 120
feet wide and 90 feet deep. The building consists of one large room which houses
the sewing machines and other necessary equipment required to operate the plant.
The Respondent offices are located in a room partitioned off from the main factory.
It commenced its operations on or about March 16, 1953.
At the time it opened its factory "Fomento" assisted it in the recruitment of em-
ployees. When the employees were hired they were given a 3-day training period
without pay. Those that showed some promise were given regular employment.
At the end of the first month the Respondent had around 50 employees. Month by
month the number of employees increased until they numbered 168 in the spring
of 1954. For the first 13 weeks of employment the employees were paid the mini-
mum wage of 33¢ per hour or $13 20 per week. Thereafter they were expected
to work on a piecework basis and required to produce so many tickets or dozens
each day. If they produced more than the number of dozens set as a standard they
were paid in excess of the minimum wage. In other words the more they produced
the greater their hourly rate. The standards were set by the parent company, and
similar to those established in its plants in the States. In the beginning supervisory
employees from the States were sent to Puerto Rico to assist in getting the plant
started and to instruct the new employees.
At the time of the hearing herein the Respondent's supervisory staff consisted of
Lloyd B. Walker, general manager, Rosita Mendez, production manager, Luz Had-
dock, manager in charge of quality, and Lily Vego and Carmen Veley, supervisors
in charge of training. Before Walker became general manager one Asuncion Aponte
was in charge of the plant. The record also shows that one Victor Martinez was a
supervisory employee, and at times is referred to in the record as "Assistant
Manager."
A. The discriminatory discharge of Paula Davila Ramos
The record clearly shows that Paula Davila Ramos, herein referred to as Davila,
was the moving force behind the events which concern us herein. She was, to say
the least, a most controversial person.
Davila was one of the first employees hired by the Respondent when it opened
its plant in Maich 1953. At the time she was hired she had had considerable experi-
ence in the garment industry The record clearly shows that she was a skilled and
productive worker. Her production record was outstanding There is little, if any,
controversy in the record on this score. From the time she entered the Respondent's
employ up to the date of her discharge, November 20, 1953, she busied herself with
the affairs and grievances of her fellow workers. Since she had had experience in
the needle trades she knew something about the production standards established by
the Respondent, and the distribution of the workload amongst the employees Dur-
ing her employment she worked on operations 15-16 As the Trial Examiner sees
it the employees complained to Davila from time to time that the production stand-
379288-56-vol. 113-13
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ards established by the Respondent were too high. The gist of their complaints was
that as their pioduction rose, their quotas were increased accordingly, until it was
almost impossible foi them to rise above the minimum standard, which consequently
made it most difficult for them to earn more than the minimum wage, $13 20 per
week. Davila complained to management and requested her supervisors to adjust
the situation. The record indicates that her efforts were not in vain and that at
least on one occasion the Respondent made an adjustment as regards the distribu-
tion of work on operations 15-16 and endeavored to set the quotas of the employees
on that operation on a reasonable basis. Such activities on the part of Davila even-
tually led to some friction between herself and Rosita Mendez, production manager,
of which more anon.
Davila had two periods of employment with the Respondent. She testified that
she was first hired by the Respondent on March 24, 1953. At the time she apphed
for employment she was interviewed by Asuncion Aponte, then assistant manager-
what transpired at that time is best told in Davila's own words, consequently her
testimony in this regard follows below.
Q. Will you kindly tell us about the conversation the day you were first
hired, Mrs. Davila?
A. When I got to the plant for the first time, they called you in always to
fill out some papers and they asked some questions. He asked me if I spoke
English, and I said no How many children I had, and I told him how many I
had, and he asked me about other dependents I had. Then I asked him if I
could ask him some questions, and he said yes. I asked him if that company
gave, or if the operators had a right to vacation with pay, and he said yes, after
a year. I asked him if we could organize a union, to which he replied that that
was not necessary because that company was going to work on the basis of
minutes
Q. Will you explain that? Can you tell us what you understood by that?
A. I asked him what that meant and he replied that the company had a method
of giving us a package of brassicies which we had to do or complete in 14 min-
utes. And, for example, if we arrived one minute after eight o'clock there
would be a deduction of three to four cents by the company That was in order
that the operators should arrive at the factory at the indicated hour, on time.
Q. What was his answer to your question as to whether you could form a
union?
A. That we should not insist on that business of the union because the com-
pany would be annoyed about that, and that it would look bad, and that if on
entering the job a worker should ask such questions, right at the start; that the
company was operating in the very best faith in the Island, with the hope that
the operators would make money, and that he hoped that all of the girls would
understand the situation and have good relations, because he would not like to
have trouble of any kind.
The Respondent did not choose to call Aponte as a witness on its behalf, nor was
any showing made at the hearing herein that he was unavailable as such. Hence
Davila's testimony in this regard stands uncontradicted and undenied in the record.
She impressed the Trial Examiner most favorably as an honest and forthright wit-
ness In the circumstances the Trial Examiner credits her testimony in this regard
in its entirety.
We now come to the events surrounding the termination of Davila's first employ-
ment with the Respondent. She testified that sometime in the early part of August
1953, she developed a serious eye condition. She informed both of her immediate
supervisors, Mendez and Haddock, of her condition and they suggested that she
consult an oculist. She took their advice and went to the Optico Periz The oculist
advised her to rest for a few days and fitted her with glasses. At about the same time
she met a fellow employee, one "Joe," an American employed by the Respondent as
a mechanic in the Alamo drugstore, and asked him to tell her superiors that she
would be away from work a few days The record is not too clear as to who "Joe" was
nor is there any substantial evidence that "Joe" ever delivered the message. In any
event Davila was away from work for about 3 days Upon her return she found
that her card had been pulled out of the rack. She then went into the office and saw
Aponte, at the time, manager of the plant. She asked him about her card and he
told her, in substance, that her services were no longer required and that the reason
for the Respondent's action was because she had violated its 3-day absentee rule.
She protested and attempted to explain to him that her absence was due to illness.
She also told him that she had sent word by "Joe." Her protests were in vain and she
then left the plant.
WARNER BROTHERS COMPANY OF P. R., INC. 185
The Respondent contended at the hearing herein that Davila quit her job in August
1953. In support of its position it offered the testimony of Lloyd B. Walker and
Rosita Mendez. Both insisted in their testimony (most emphatically), on both
direct and cross-examination, that Davila quit her lob in August 1953 and that she
of her own free will voluntarily walked off the job. But their testimony in this re-
gard does not "jibe," so to speak, with the Respondent's own personnel records.
Davila's record was furnished the General Counsel by the Respondent at the hearing
herein. It was admitted in evidence without objection. The exhibit is set forth in
its entirety below:
This girl was hired on March 24, 1953; after receiving three days basic
training. She was assigned to operation #15, which is net-face around. She
proved to be a good learner, followed instructions accordingly and was able
to learn her operation quite well. She was above average in her work and
below average in her disposition toward the company's policies and regulations.
In different occasions she showed resentfulness. In one instance, when one
of her co-workers was put on the floor, as a floor girl. She went home and
was absent for a couple of days, without notifying the office. A few weeks
later another operator in her section, made a small amount of money more
than she did and she was furious with her, up to the extent that she threatened
her, that she was going to do bodily harm on her. That day because of the
commotion she created she was fired. That was in August 7.
Sometime in September she sent word with another girl, that she wanted to
come back to work with us The supervisors passed the message on to the
management. We thought that by this time she would behave in a more
agreeable disposition and another opportunity was given to her. She was
hired again on October 2, 1953.
This girl was given all these opportunities because she was a good operator
on the machine despite the fact that she was very hard to handle. At this time
that particular operation was very slow and we needed the work and were
working overtime for a few weeks. When the work was normal again, we
noticed a slow-down of her production. This fact can be proven from our pro-
duction records. The results of a slow-down are as follows: forces us to take
the operators from another operation, in order to make-up the difference from
the lack of production. Also causes the operators on the next operation
to lose time from work. She also claimed that day that another operator, #52,
was doing all the small sizes while she was doing all the big ones. This took the
supervisors a good deal of time to check a whole week's production and prove
her how wrong she was. For these reasons alone plus her past record caused
her dismissal. [Emphasis supplied.]
(Signed ) LLOYD B . WALKER,
Manager.
(Signed ) R. S. MENDEZ,
Supervisor.
(Signed) Luz CH. HADDOCK,
Supervisor.
It is interesting to note that both Walker and Mendez signed the exhibit. The
other signer, Luz Haddock, one of the supervisors, was not called as a witness
by the Respondent nor was there any showing made at the hearing herein that
she was unavailable as such.
In the circumstances described above the Trial Examiner credits Davila's account
of the events that led up to her discharge by the Respondent on August 7, 1953.
The testimony of Walker and Mendez before the Trial Examiner when considered
in the light of the Respondent's own records, compels such a finding.
Davila was rehired by the Respondent on or about October 2, 1953. Her
testimony in this regard is set forth below. The Trial Examiner feels that since
there is a most serious problem involved herein as regards the credibility of
the witnesses, who appeared and testified under oath before him, that the best way
to inform all parties as to his reasons for resolving this issue, as he does below,
that on occasion the language of the witnesses themselves present the picture
and the impression that they made upon him at the time they testified. At this
time the Trial Examiner feels compelled to say that Davila impressed him most
favorably. There was a sincerity in her demeanor that impressed him deeply.
He is convinced from this observation that she was an inherently honest person,
and that her activities during her tenure of employment with the Respondent were
for the most part for the benefit of others rather than for herself. Though such a
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
procedure may seem to some to be burdensome and redundant , nevertheless the
Trial Examiner feels that all concerned should be informed as to the "why," so
to speak, of his findings above and below. As he sees it fairness demands such a
procedure.
Q. Now, did you go back and ask for work at Warner's, or how did it
happen that you went back there to work, will you tell us?
A. Well, there was a girl by the name of Lalin. I don't know what her full
name is, but they call her Lalin, and she asked me if I was working and
I told her that I was not. Then she asked me why I didn't go back to the
factory again. I told her that I wouldn't go because they had taken the
time card away from me. Then about a week later I met her again and she
told me that Miss Haddock had sent word to me.
TRIAL EXAMINER: That who had sent word?
Mr. RoTOLO: Miss Haddock, one of the supervisors.
A. (Continued.) She said she sent word to me to go to see Mr. Walker at his
office. That was on a Wednesday.
Q. Did you go to the factory?
A. Yes, I did.
Q. Did you talk with Mr. Walker?
A. Yes. He was in the office alone.
Q. Tell us the conversation you had at that time?
A. Well, he asked me if I wanted the job again and if I was willing to work
for him, and I told him yes, because I didn 't have any problem with him be-
cause he was a nice person and treated the operators well. I told him that I had
no objection to working for him again . Then he asked me if I could go the next
day, and I said no, that I couldn't , but that I could go the next Monday.
Q. And did you go back the next Monday?
A. Yes, I did go back.
Upon her return to work she was reassigned to sections 15-16. Her relations
with her supervisor, Rosita Mendez , are well described in her testimony.
Q. And what were your relations with Miss Mendez on that occasion after
you started working again with Warner Brothers?
A. Well, she was all right with me for about a week only.
Q. For only a week?
A. Yes.
Q. And what happened after that first week?
A. She always persecuted me. I couldn 't get together with the girls and talk
to them, and she would say that if I had come back to the factory to work
that I should do so without making any comments with the girls . I would
answer her that that was inevitable because the girls would sympathize with me,
and I with them also, and they would call me.
TRIAL EXAMINER: What do you mean by "sympathize"?
WITNESS: Well, you see, when I arrived at the factory I would say "Hello,
girls," and the girls would say "Here is Dona Paula" and they would come around
me.
TRIAL EXAMINER: All right, proceed.
Q. Now, these gatherings that you had with the girls, were they during work
hours or during rest periods or the lunch hour, or on what occasions?
A. No, they were outside of working hours.
Q. In the plant?
A. Yes, in the plant, but in the recess periods.
On November 20, 1953, Davila came to work at around noon. When she entered
the factory she had with her a copy of "El Mundo," a newspaper published in San
Juan and widely read throughout the Island. It was lunch time. The employees
were at ease . As she entered she called them around her. What happened is like-
wise best told in her own words.
Q. Now, when you went to work on the afternoon of that day, during the
lunch hour, did anything unusual happen in the plant?
A. Well, I arrived there about twelve-thirty. I was carrying a newspaper
of the day before, which was the 18th or 19th.
TRIAL EXAMINER That would he of November 1953?
WITNESS: Yes, of November, 1953.
Q. What about this newspaper, proceed.
A. Well, in those days they were announcing on the first page of the news-
paper that Mr. Dubinsky would arrive there.
WARNER BROTHERS COMPANY OF P. R., INC. 187
Q. Did the paper say who Mr. Dubinsky was?
A. The organizer of the union.
Q. What did you do with that newspaper?
A. Well, I arrived there as happy as a boy at Christmas, and I said to them:
"Come over here, girls, because God has come to see us. There will be no
more problems here in the factory. This American is coming down to organize
the needlework industry and we will soon get away from the $13.00." The
newspaper said that he would be staying in the Hotel Condado, one of the hotels
here, and that anyone who desired to have an interview with him on his arrival,
should send him a post card. So I said to the girls: "How many of you girls
would like to go with me on a committee?" Then Matilde Fuentes seconded
the proposal and Mrs. Carmen Quinones, and the other girls who were there,
who said that wherever I went with respect to the union they would follow
me. So we agreed on that, and then we began to laugh and talk, enjoying the
news. In that moment Mrs. Mendez was having her lunch near the inspection
table or bench.
Q. Was that in the same room?
A. Yes, in the same room. I wasn't afraid of talking about these things in
the same room.
Q. How far would you say Mrs. Mendez' inspection desk or table was from
the place where you gathered with these girls, more or less?
A. About from here, for instance, to the wall outside, across the hall.
TRIAL EXAMINER: We said before about 35 feet.
According to Davila and other witnesses, whom the Trial Examiner credits, there
were about 40 employees gathered around her when she addressed them. During
the course of the "conversation" Rosita Mendez left her desk, which as indicated
above was about 35 feet from where Davila was standing, and came to her and
inquired as to the cause of the "commotion." Davila asked her to participate in
the discussion if she cared to do so and then gave her the paper to read. At about
this time the bell rang and the employees returned to their working places.
Davila's account of her address to the employees was corroborated by the witnesses,
Matilde Fuentes, Carmen Gloria Quinones, and Aglae Rodriquez De Arroyo. The
Trial Examiner credits their testimony in this regard.
The day was Friday, November 20, 1953. According to Davila she returned to
her machine and resumed work. At the recess period, 3 p. in. the girls gathered
around the "Coke" machine and exchanged pleasantries and the like. On this occa-
sion there was an exchange of little gifts between the employees and a fellow worker
who was leaving the Respondent's employment. The recess period over the em-
ployees returned to their machines. At around 3.30 the paymaster appeared. What
happened thereafter is best told in Davila's own words. Her testimony in this regard
follows below:
Q. All right, now tell us what happened when this paymaster came around
as you have stated?
A. Well, he gave me my envelope, which I opened, and I was very happy
because that week Mr. Walker had paid me at the rate of 50 cents an hour.
Q. Yes. And what happened?
A. I was showing the ticket to the girls and saying to them: "Look , girls,
work hard and try to produce as I produce so that when this day arrives, pay
day, you will be satisfied too." Then at that moment there was an inspector from
Bridgeport. I was humming a dance tune, and I saw Mr. Walker there with
this inspector, and this man told me: "Go ahead and sing. Where there is song,
the atmosphere is good." But when I looked at Mr. Walker I found him so
strange and different from his usual self. He was not in his usual mood, because
he is always so nice to us. I was surprised because he was always nice to me.
He didn't say anything good about my singing, and he used to give me compli-
ments when I sang. So I told Carmen, who used to be the fellow worker next
to me-
Q. Carmen Quinones?
A. Yes, Carmen Quinones. I said to Carmen: "This gentleman who is here
on a visit must have found our work unsatisfactory, because I see that Mr.
Walker seems angry." Then Carmen said: "I don't know, Dona Paula." Then
the two of them left for the office and Mrs. Mendez came to me and told me
to go to Mr. Walker's office. I got up and even left my machine still running,
because I couldn't imagine what it was all about. When I arrived there I found
Mr. Walker seated at his desk and Mr. Martinez beside him. I was surprised
to see him so red faced, because it appeared to me he was in a state of nerves.
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Then Mr. Walker, the only thing he told me . well, he actually didn't tell
me, it was Mr. Martinez who told me, since he doesn't speak my language nor
I his. But he told me to punch and leave because that was my last week there.
I was very surprised. Then Mr. Walker told Mr. Martinez to write up something,
some note, so I went back to my machine without asking permission from Mr.
Walker When I sat down and started to give some money that I had to give to
the girl beside me, and to finish a cup that had fallen behind the needle in the
machine, and clip the tickets together with a rubber band, Mr. Walker came out
of the office, but going like the wind, and he came to me in a very angry atti-
tude, and with Mrs. Mendez at his side, he said to me some of the few words
he has learned in Spanish. He said: "No mas, no mas, out." I told him: "Be
calm, Mr. Walker." Then Mrs. Mendez told me- "Paula, get up, he doesn't
want you to operate that machine any more." I told Mrs. Mendez that I could
not leave my things behind and that I had to pick them up. Then Mr. Walker
grabbed the tickets from my hand and stopped the motor of my machine, and
he made me get up in that attitude, something for which I didn't blame him
because he didn't speak my language, and I believe it must have been Mrs. Mendez
who had told him something and put me in bad with him. He didn't speak my
language and I couldn't speak his so I couldn't explain anything to him, and
he couldn't tell me anything. I was suffering because I could not explain to
him or discuss with him the problems of the factory.
Davila's account of Walker's conduct was corroborated by the testimony of the
witnesses, Matilde Fuentes and Carmen Gloria Quinones. For reasons set forth
below the Trial Examiner credits their testimony in this regard.
Davila further testified that she had the following conversation with Mendez
at the time of her discharge, in regard to certain papers she was requested to sign
by Walker.
Q. Who was there when you went back to the office?
A. When I got up from the machine and was about to leave, Mrs. Mendez
said: "Don't go, you have to go to the office and sign some papers there.
This all happened because you are mixed up in these union matters, because
almost always unions end by keeping the money of the workers. So this is
your last day here. Go in and sign those papers." Then I went to the office
and there was a paper that Mr. Martinez had written, and the paper that I
read said as follows: . . . Can I state what was in the paper?
Q. Tell us what you remember reading in the paper.
A. It said something like this: "We have been forced to dismiss Mrs. Paula
Davila today, the 20th of November, because she is a danger for the factory
where she forces the workers by her attitude to reduce their production."
They gave me that to sign, and I said I wouldn't sign it because it was not true.
Q. Did Mr. Walker tell you anything at that time?
A. No. He told me that if I didn't want to sign it, all right, but that he
would sign it and Mrs. Mendez and Mr. Martinez also would sign it. I didn't
sign it.
Shortly after her conversation with Walker and Mendez, Davila picked up her
belongings and left the plant. Her activities thereafter on behalf of herself and
fellow employees will be discussed and disposed of below.
The Respondent's position is that Davila was discharged for just cause. As indi-
cated above its answer was in effect a general denial of each and every allegation
in the complaint insofar as it related to violations of the Act. Such a pleading is
permissible under the Rules and Regulations of the Board. For generations it
has been recognized that a charging party, be he called "Plaintiff" or "General
Counsel," must prove his allegations by a preponderance of substantial evidence
when considered in the light of the "whole record." There is no essential difference
between cases tried before a Trial Examiner of the Board and a jury, except 1 man
instead of 12 is the "trier of the facts." Conscious of this responsibility the Trial
Examiner now proceeds to examine the testimony of the Respondent's witnesses
in such a "light."
Lloyd Walker, the Respondent's general manager at all times material herein,
testified in substance as follows as regards Davila's discharge. At the onset of the
hearing herein the General Counsel called Walker as a witness under Rule 43 (b)
of the Federal Rules of Procedure, for cross-examination. The gist of his testimony
follows below.
Close and careful examination of Walker's testimony convices the Trial Examiner
that his reasons for the discharge of Davila fall into two categories: (1) that she
WARNER BROTHERS COMPANY OF P. R., INC. 189
was a troublesome and aggravating person; and (2) that she engaged in a "slow-
down" during the last week of her employment. Mendez' testimony corroborated
Walker's in this regard. Let us again look at the record.
Walker admitted time and again in his testimony that Davila was an efficient
employee, and that her production was above the average. He likewise admitted
that she had protested the working conditions of her fellow employees, but denied
that she had been successful in her efforts. A typical example of his testimony in
this regard is set forth below:
Q. Particularly, can you mention any supervisor that she was having any dif-
ficulty with?
A. I would say Miss Rosita Mendez, Miss Luz Haddock, Miss Anne Spizak,
Miss Sally Mockedicius. Those are some of those I know definitely she had
difficulties with.
Q. When did these difficulties begin?
A. Within two to three weeks after she was employed.
Q. What was the nature of the complaints that you received, if any, from
the supervisors that you have mentioned concerning Miss Davila')
A. Generally not conforming to the rules and regulations set down, ob-
jecting to our policies and training.
Q. Isn't it a fact, Mr. Walker, that she complained about the high standard
you had set for the production in these operations 15 and 16?
A. To me, formally, no.
Q. To her supervisors? Isn't that one of her complaints?
A. Possibly, yes.
Q. And isn't it a fact that as a result of these constant complaints Miss Davila
was making and those of the other girls, did you reduce this high standard
that you had set9
A. We did not.
Q You maintained the standard of 42 dozens constantly during 1953 on
operations 15 and 16?
A. On operations 15 and 16, as I remember, to earn 33 cents an hour mini-
mum they still had to produce between 40 and 42 dozens.
Q. You never reduced it'
A. No.
Q. Now, were those complaints being made only by Miss Davila or by the
other workers in that operation, about their inability to produce this standard
you had set?
A. I think Miss Davila was the only one who complained.
Q. None of the other girls complained?
A. I haven't heard any other complain.
In the main Mendez' testimony consists of flat denials of that of Davila, and
all other witnesses called by the General Counsel Since the Trial Examiner con-
siders Davila's speech to the employees during the lunch hour on November 20,
1953, as the key to his ultimate disposal of the issues herein, he shall devote a
considerable portion of this ieport to an analysis of Mendez' testimony in this
regard. Careful examination of her testimony convinces him that here likewise the
parties should be reinformed by an excerpt from her testimony as it appears in the
official transcript of the record:
Q. Now calling attention to November 20th, do you recall anything un-
usual, any unusual gathering, at lunch time or just prior to their going back to
work after lunch on that day?
A. No, nothing.
Q. Do you remember on November 20th if Paula Davila had any copy of
a paper, El Mundo?
A. I haven't seen it.
Q. Did she at any time on that day throw it on the table and say: "Read
it" or "Look at it"1
A No
Q Did you ever, at any time as long as you have been working see Paula
Davila with a copy of El Mundo which she showed to you or threw on the
table'1
A. No
Q Did she ever at any time say anything to you about a union?
A. No
Q Did you ever discuss the question with her at any time?
A. No, never.
190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Did you ever make a statement at any time that she was number one?
A. No.
Q That one of the other girls was number two, which would be Carmen
Gloria Quinones, and that Matilde Fuentes was number three?
A. I have never made that statement.
Q. Did you ever make the statement that they were the ring leaders of the
union and you were going to get rid of them, or words to that effect?
A. Never.
Further on in her testimony she testified in substance that nothing of an unusual
nature occurred on November 20, 1953. According to her testimony she was eating
her lunch at her accustomed place at the time Davila made her speech to the as-
sembled employees in regard to Dubmsky's proposed visit to the Island, and that she
neither heard Davila's remarks nor had any conversation with her at the time.
Faced with such a flat denial of the testimony of Davila, and other witnesses, the
Trial Examiner must turn to the whole record to resolve this issue as to the credibility
of the witnesses. After due and careful consideration he credits the testimony of
Davila, and other witnesses called by the General Counsel. Persuasive factors in
this resolution have been: (1) Davila's demeanor; (2) the inconsistency of the
testimony of both Walker and Mendez as regards the circumstances under which
Davila left the Respondent's employment in August 1953, and (3) the demeanor of
both as they testified before him at the hearing herein Quite frankly the Trial
Examiner is convinced that neither of them gave a true account of the events with
which we are concerned herein in their testimony before him. In such circumstances
he has resolved the issue as to the credibility of the witnesses on this score.
We now come to the contention of the Respondent that Davila was discharged be-
cause she engaged in a deliberate "slow-down" in her production during the last
week of her employment. In resolving this issue, that is as to whether or not she did
engage in such a course of conduct, the Trial Examiner directs attention to the testi-
mony of General Manager Walker, wherein he testified that at about the time Davila
was rehired there was a "bottleneck," so to speak, in the production lines of depart-
ments 15 and 16, and that in order to correct this situation the employees in those
departments were required to work overtime to get the production of the entire plant
back in "balance." Verbatim his testimony in this regard was as follows, ". . . It was
necessary to work overtime to pick up the production and have it flow.. . A
careful study of the record convinces the Trial Examiner that production in depart-
ments 15 and 16 were back in line as of the week Davila was discharged. At the
hearing herein the General Counsel offered in evidence an analysis of the production
record of all employees in departments 15-16. It was admitted without objection by
the Trial Examiner. After long and careful consideration the Trial Examiner is con-
vinced that it should be made a part of this report. Consequently it is attached hereto
in its entirety marked "Appendix A."
Conclusion as to Davila
After due consideration the Trial Examiner is convinced that Davila was dis-
charged because she engaged in "concerted activities" on behalf of herself and her
coworkers. Her speech to the employees concerning the contemplated visit of
Dubinsky to the Island was the "disturbing factor" that caused her summary dis-
charge. The record clearly shows that she was discharged within the "hour," so to
speak, after she spoke to her coworkers. There is little if any dispute that she was
from the beginning active on behalf of her fellow workers. She was experienced in
the trade and her production was far above the average.' There is no question about
her legal rights to engage in such activity. That is so well settled that extensive com-
ment herein would be sheer nonsense.
As regards her activity on behalf of the Union the record is not too clear in this re-
gard as of the time of her discharge. Thereafter her activities are well established
in the record. They of necessity will be discussed below.
In his brief counsel for the Respondent points out that Dubinsky's contemplated
visit to Puerto Rico was related to matters other than union affairs. He refers
specifically to the edition of "El Mundo," and points out in substance that Dubinsky's
visit was concerned with the industrial development of the Island, rather than "Union
i See Appendix A The Trial Examiner has attached only a part of the exhibit as Appen-
dix A, the weeks from October 2, 1953, to the time of Davila's discharge The only pur-
pose of the Appendix is to show the "flow of production" in departments 15-16 during this
period.
WARNER BROTHERS COMPANY OF P. R., INC. 191
affairs" as such. That may be true. A copy of the edition of "El Mundo" is not
before the Trial Examiner. Suffice it to say that Davila, as an experienced worker
in the needle trades industry, was well acquainted with Dubinsky's role on behalf of
those employed therein. Neither the Trial Examiner nor any trier of the facts can
close his eyes and ears to matters which are of notorious and public knowledge. It
would be, so to speak, to say that such a controversial figure as John L. Lewis never
existed. In the circumstances the Trial Examiner rejects the Respondent's contention
in this regard.
A further factor in the Trial Examiner's findings as to Davila in addition to the
suddenness of her discharge was the testimony of Quinones and Fuentes which will
be discussed in full below.
The Trial Examiner is convinced and he so finds upon the record considered as a
whole, that Paula Davila Ramos was discharged by the Respondent on November
20, 1953, because she engaged in protected "concerted activities" on behalf of her-
self and fellow workers. Also because she on the date of her discharge had the
effrontery to urge her fellow workers to appeal to "Dubinsky" to adjust their griev-
ances. The events thereafter will be fully described below and justify such a finding.
The Trial Examiner has carefully considered the Respondent's position. He has
read its brief. He has weighed the evidence. He realizes that an employer has the
right to discharge an employee for any reason, except for the reasons set forth in
the Act. But where as here he has found that the Respondent's reasons for the
discharge of Davila (and others below) were mere pretext and not the true reason
for such action, then he agrees with the Board in a recent case, where it said: 2
The Trial Examiner indicated that there may be "some grounds for believing
Wojohn was discharged for minor inefficiencies." We disagree. Assuming
arguendo that the Respondent had justifiable cause to discharge Wojohn for
minor inefficiencies in his work performance, it is apparent, and we find, that this
was not the motivation for the Respondent's action. The mere existence, more-
over, of a valid reason is no defense to a discharge which, as here, was moti-
vated by antiunion considerations. [Emphasis supplied.)
So is it here, the Trial Examiner finds that Paula Davila Ramos was discharged by
the Respondent on November 20, 1953, because she engaged in concerted activities
on behalf of herself and fellow workers, and that by such conduct the Respondent
herein violated Section 8 (a) (3) and (1) of the Act.
B. The discriminatory discharge of Carmen Gloria Quinones
Carmen Gloria Quinones, herein referred to as Quinones, was hired by the Re-
spondent in June 1953. Prior thereto she had had some experience in the trade
with the Jem Manufacturing Company in Bayamon, a small town near San Juan,
Puerto Rico. For the most part her employment with the Respondent was in
operations 15-16-the same department and section where Davila was employed.
Her production record is set forth in Appendix A. As indicated above in that sec-
tion of this report concerning Davila, Quinones was an active supporter of Davila in
the latter's efforts to encourage concerted action by the employees in the plant to
better their working conditions She was present at the time Davila made her speech
to the employees on November 20, 1953. Moreover, credible evidence in the record
shows that it was she along with Matilde Fuentes who seconded Davila's proposals
on that occasion and urged united action by the employees to present their problems
to Dubinsky. Her testimony in this regard follows below:
Q. Now, what was the discussion that you had with Paula Davila on that day?
A. Mrs. Paula Davila came to work at about twelve-thirty, around noon. She
brought a newspaper with her in which there was an article about a Mr. Du-
binsky, an American who was coming down to Puerto Rico to organize the
needlework industry. She was quite happy, and she called us and we all got
together with her, and then she stated openly: "How many of you are ready
and willing to form part of a committee to visit that gentleman, or to write
to him, and if you are the ones to follow, you are the ones to sign. The ones
that are willing to go, let's go." Then Matilde Fuentes and myself seconded
her to do either one thing or the other, either to go there in a committee to
see this gentleman, or to write to him.
Q. Were you the first one to second the proposal of Mrs. Davila?
A. Yes, sir.
2 See The Plastic Holding Conipa'ny, Inc ., 110 NLRB 2137.
192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. And then Matilde Fuentes?
A. Yes, sir.
Q. Who else seconded her?
A. Well, openly, nobody else.
Quinones futher testified that among those present at the time Davila made her
speech was one Isabel Reyes. The Trial Examiner considers this of some importance.
Reyes was a floor girl. Her duties were to distribute the work to the employees. A
resume of her duties and potentialities are best told in the testimony of her superior,
Lloyd B. Walker.
Q. What would you say the duties of those floor girls would be?
A. The main duty of the floor girl is to service the operators.
Q. In what way?
A. To hand out work and to pick up work.
Q. Do they check quality of work?
A. On occasions they are required to check quality, yes.
Q. Do you consider them as supervisory employees in the sense that they
responsibly directed the work?
A. They were potentially supervisory personnel. We developed them.
Q. But they were not considered supervisors in the sense that they were re-
sponsible for the production and quality of the work?
A. Mrs. Mendez was in charge of production, and Mrs. Vega, quality.
Q. Would you consider the floor girl as an assistant to Miss Mendez or Miss
Vega?
A. Yes.
As the Trial Examiner sees it the Respondent rests its case on the theory that it
had no knowledge of the activities of Davila, Quinones, Fuentes, and Suarez. The
answer to that denial of necessity must rest upon the testimony of all witnesses, that
is the record "considered as a whole." This position requires examination of the
record. Mendez, at the time of Davila's speech, was seated some 35 feet away from
where the employees were assembled. Her testimony in this regard was to the effect
that she neither heard Davila, nor paid any attention to the commotion of the em-
ployees who surrounded Davila, at the time the incident occurred. As the Trial
Examiner interprets the record as a whole, Mendez' testimony in the final analysis
adds up to this: (1) That such an incident did not occur; (2) if it did she was uncon-
scious of it; and (3) that she at no time ever commented to any of the employees
under her supervision in this regard. Quite frankly the Trial Examiner does not
credit her blanket denials. On the contrary he credits the testimony of each and every
witness called by the General Counsel, who testified before him under oath at the
hearing herein. It must be remembered that the factory building, where the Respond-
ent's operations were confined to, was 120 feet wide and 90 feet deep with an office
partitioned off from the main floor near the entrance. In such circumstances the
Trial Examiner simply cannot accept Mendez' flat denial that the Davila incident
never occurred. In the circumstances the Trial Examiner credits Quinones' account
of her discharge, which follows immediately below.
Q. Did you report for work as usual on Monday morning, November 23d?
A. Yes, sir.
Q. What happened at the time you reported to work on Monday morning?
A. Well, I went in as usual and started to work I had already completed two
packages of work when Mrs. Mendez came and told me that Mr. Walker wanted
me in the office. I got up and left my work and went with Mrs. Mendez to the
office.
Q. Did you have a conversation there with Mr. Walker?
A. Yes, sir, through Mrs. Mendez.
Q. You don't know how to speak English, do you, Miss Quinones?
A. No, sir.
Q. And Mrs. Mendez was acting as interpreter for Mr. Walker and yourself?
A. Yes, for both of us.
Q. Now, what did Mr. Walker tell you at that time through Mrs. Mendez9
A. She asked me if I had noticed the benefits that the Guaynabo women had
had ever since the moment that the factory started working there, and if I noticed
how they used to dress before and how they were dressing now. I answered
that I did not live in Guaynabo, but that I was living in Rio Piedras, and that
when I came to work I brought my lunch along to eat in the factory, and I
didn't go out to Guaynabo or anywhere I didn't have to go in to Guaynabo.
He also asked me if I had any place to go to work if I left that factory. I an-
WARNER BROTHERS COMPANY OF P. R., INC. 193
swered that I didn't because I had worked formerly in the Jem Manufacturing
in Bayamon. Then he asked me why I had left the work in that factory. I
answered him that I was going to have a baby and I couldn't continue working,
because it was well advanced . I quit because I was unable to find somebody to
take care of in,,, child and couldn't go back to work in Bayamon. He asked me
then who was taking care of the baby while I was working with Warner Brothers,
to which I replied that nobody was, and that I was working because the child had
died. Then he asked me if [ could repeat the words that he had said to me, to the
other girls in the factory.
Q. What words, about your child, or anything else?
A. About the benefits that we had obtained from working there, and that
business conditions had improved in the town of Guaynabo because of the money
that the girls were making in that factory.
Q. What did you answer to that?
A. Then I answered him that he, as the boss, just the same as he had called
me to the office, should call them into the office also, because they would pay
more attention to him than to me, because I had seen during the time I had been
working in the factory that the women of Guaynabo were very proud of the way
they dressed, and because of the fact that I was not from Guaynabo myself,
they might think I was an intruder, a buttinsky, and they might get angry at me,
thinking that I would be saying that they did not dress well before the factory
was established, if I told them that they were dressing better since it was opened.
Then Mrs. Mendez asked him whether I was going to remain in the factoryf or
if I was leaving.
Further on she testified as follows:
Q. What did you understand Mrs. Mendez to ask Mr. Walker?
A. She told me that he had told her that he didn't want me in the factory
any more, since I had started to follow in the footsteps of Mrs. Paula Davila
in these matters of the union, and that these things were not convenient for
them, and that 1 should punch my card and go and come back the next week on
Friday to get my money for the week before. That they had already gotten rid
of the leader No. 1, which was Paula Davila, and that now they were getting rid
of me, who was No. 2, and that they were looking for Matilde Fuentes, who was
No. 3, and that they would send to her home for her and fire her.
Q. Did you leave the factory right away then?
A. I became nervous and I could not'go to the office to look for my purse
and lunch box, so then Mrs. Mendez went and brought me my things, and the
tickets she gathered up herself and put them in the envelope where we usually
put them, and she herself punched out my card, and then I left. I gave my ad-
dress to Mr. Martinez so that he should send my pay envelope to my home.
The Trial Examiner readily admits that he has quoted extensively from the rec-
ord, however he knows of no better way to convey to all parties his resolution of
the issue as to credibility which certainly is the key to the solution to the allega-
tions in the complaint Unquestionably it is a difficult and thankless task. But such
issues must be resolved in the light of the whole record. That task he accepts and
answers below. He refuses to make findings by lifting a sentence here and there
out of context.3 It is for that reason that he has quoted so extensively from the
record.
In further justification of its position as regards the discharge of Quinones, the Re-
spondent at the request of the General Counsel, presented to the Trial Examiner the
following, which was properly identified and admitted in evidence. The exhibit
sets forth the Respondent's position as regards the discharge of Quinones:
WARNER BROTHERS, INC. PUERTO RICO.
Re Carmen Gloria Quinones
This girl was hired on June 9, 1953; after receiving three days basic train-
ing, and was assigned to operation # 15, which is net-face around. She had a
hard time learning and had to rip and repair a good deal of work. Then she
learned her operation quite well and was just average.
She participated on the slow-down of production together with Paula Davila.
This fact can be proven from our production records. The results of a slow-
down are as follows: it foices us to take the operators from another operation,
8 See Ohio Associated Telephone Company v. N. L R B., 192 F. 2d 664 (C. A. 6), setting
aside 91 NLRB 932. Hunkin-Conked Construction Co., 100 NLRB 955.
194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in order to make-up the difference from the lack of production. Also causes
the operators on the next operation to loose time from work. This causes a
lot of changes in the daily routine of work and breaks one of the regulations
of the policies of the company. For this reason alone was this girl dismissed.
(Signed ) LLOYD B. WALKER,
Manager.
(Signed) R. S. MENDEZ,
Supervisor.
(Signed ) Luz CH. HADDOCK,
Supervisor.
The Trial Examiner is convinced that when the above is compared with Appen-
dix A; his observations and findings above as regards Davila; and that his ultimate
conclusions below are justified when considered in the light of the whole record.
Conclusions as to the Discharge of Quinones
For the same reasons that he has thoroughly discussed above in the case of Davila,
the Trial Examiner is convinced and finds that upon the entire record that Quinones
was discharged by the Respondent because she publicly and openly supported Davila
in her concerted activities on November 20, 1953.
Consequently he finds that she likewise was discharged by the Respondent herein
because she engaged in a course of conduct that the Act permits. That is, she
exercised her statutory rights under Section 7 of the Act. The Respondent's true
motive for discharging her was for precisely that reason.
In the circumstances, the Trial Examiner finds that the Respondent discharged
Quinones because she exercised her rights under Section 7 of the Act, and that by
such conduct it violated Section 8 (a) (3) and (1) of the Act.
C. The discriminatory discharge of Matilde Fuentes
Fuentes was hired by the Respondent at about the time it opened its plant in
Guaynabo, March 27, 1953. She first worked in operation 7, but later was assigned
to operation 5.
The conversations surrounding her discharge paralleled those of Davila and
Quinones. The record shows that she was in attendance at the time of Davila's
speech. It was she who seconded Davila's proposal that the employees contact
Dubinsky upon his arrival on the Island and take concerted action to correct their
working conditions.
Her account of the events that led up to her discharge was in substance as follows.
She testified that she was present at the time Davila made her speech, and that she
along with Quinones had openly agreed with Davila's proposals. She became ill
on Friday after her return from work and was hospitalized for a short time. On
Monday, November 23, 1953, she did not report for work. Mendez sent for her.
She arrived at the plant at about noon. Upon her arrival Mendez came to her and
according to Fuentes, in her testimony before the Trial Examiner, the following
conversation occurred:
Q. And did you have a conversation with Miss Mendez at that time?
A. Yes.
Q. Tell us what happened?
A. I told her: "Miss Mendez" . that is, we are not in the habit of calling
her Miss Mendez. We called her Dona Rosita. So I said, "Dona Rosita,
what do you want me for." Then she told me: "I am not the one. It is the
American; but look, Matilde, I am so very sorry, because you are such a good
girl. You are a good worker, and I am very sorry, but it has to be done.
Go and see Mr. Walker, because we have already got rid of the leader No. 1,
which was Paula, and the leader number 2, which was Carmen Gloria, and
there was lacking only yourself, number 3. He told me also . .
Mr. FRANCO: There is no question pending. If the witness will give us time,
we will object.
TRIAL EXAMINER: There is no question pending. Ask the witness if she was
relating to the conversation she had with Miss Mendez?
WITNESS: Yes.
TRIAL EXAMINER. It was all part of the conversation?
WITNESS' Yes.
WARNER BROTHERS COMPANY OF P. R., INC. 195
TRIAL EXAMINER: All right.
A. She also said to me that a person who was very loyal to the factory
had told her what we were doing in the factory, and then when she had finished
she sent me to the office of Mr. Walker.
Shortly thereafter she went to Walker's office . Fuentes testified as follows as
regards this incident:
Q. Did you go to Mr. Walker 's office at that time?
A. Yes, sir, 1 did.
Q. Did Mr. Walker talk to you?
A. Yes. We both arrived at the office about the same time.
Q. Did you understand English? Did Mr. Walker speak to you in English?
A. No, I didn't understand. Mr. Walker was talking to Mr. Martinez, who
is the manager they have in the office . He was talking to him in English and
Mr. Martinez would say it to me in Spanish. The first question he asked me
was: "Matilde , when one has something good, he holds on to it." I nodded
my head, but I didn't speak. Then he asked me how much I was making
when I came to work there . You see he would talk to me in Spanish , and then
he would explain to Mr. Walker. Then Mr. Walker would say something
else in English and Mr. Martinez would translate it to me. Then he asked
me: "Mr. Walker wants to know how much you were making when you first
came here to work." I told him I was working in an ensign factory, and that
when it was good work they used to pay $3.00 a dozen, and I would make ten
dozens at $3.00, which would be $30.00. Then he told me: "Well, if you were
making $30.00 you would not leave to come here to make $13 00." Then when
I told him that and he said I would not leave that to come here for $13.00,
I answered that I had gone there because the Department of Labor, when
it interviewed us, told us that after the training period of thirteen weeks we
were going to earn whatever we wanted to because we were going to work by
sections . I told him that was why I left that work to come to work there.
Q. What else did he say to you?
A. Then he asked me if my husband knew how to read and write English,
and how much money he was making. I told him that he knew how to read
English and to speak it , but I didn't know what he was asking because that
was his own business. Then he told me: "We have gotten rid of leader No. 1,
and No. 2 and you are No . 3, and you can come here and get your pay next
Friday.
The Respondent 's position as regards Fuentes was stated to the record by its
counsel at the hearing herein:
Mr. FRANCO : What I have in mind , Mr. Examiner, is that it is in order to
sustain our theory that she was discharged for cause , because she was not
doing the work the way she should, and she didn't show aptitude, and in
connection with that I want to know what she has been doing.
TRIAL EXAMINER. Is that your theory as to discharge?
Mr. FRANCO : For cause ; and I want to show that she didn 't show aptitude
or ability in her job, and I want to know what she has been doing , whether she
has a comparable job or not.
In addition to its position set forth above, it also takes the position that absentee-
ism was a factor in her discharge.
But other evidence in the record is to the contrary . For example , her timecards
for the entire period of her employment show that she had about the same record of
all employees in the plant . Her cards show that she did have some absenteeism.
But on the whole her record is on a par with a majority of employees employed by
the Respondent during this period.
Her personnel record ( General Counsel 's Exhibit No. 5) does not "jibe" with
counsel 's statement that Fuentes did not have either ability or aptitude . This record
is set forth below:
WARNER BROTHERS, INC. PUERTO Rico.
Re Matilde Fuentes
This girl was hired on March 27, 1953. She was given three days basic train-
ing and was assigned to operation 7, which is 1/8 " seam across. From the begin-
ning she showed a disagreeable disposition . She had a hard time learning this
kind of work and whenever bad work was given back to be repaired , she did not
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
like it . On several occasions she threatened to leave her work , because she did
not like to repair . Once she walked out, and we had to talk to her , in order to
make her come back. After several weeks we transferred her to operation #5,
which is 3/ls ' underbust seam, in which she proved fairly good . After sometime
she began to receive again a lot of repairs . Again she disliked to fix the repairs
that were given to her.
She was absent from work very often , and when she came back she had no
reasonable excuse to account for her absence. Her attention was called to that
fact with no results . It is important to say that his girl could have been a very
good operator on operation # 5. She showed the ability to do it, but she did
not seem to have interest in keeping her job.
As a whole this girl's attitude toward the company's policies and regulations
was below average.
(Signed ) LLOYD B. WALKER,
Manager.
(Signed ) K. I. MENDEZ,
Supervisor.
(Signed ) Luz CH. HADDOCK,
Supervisor.
Walker, in his testimony before the Trial Examiner, insisted that Fuentes was dis-
charged because she was a "chronic absentee ." He denied that he made the state-
ments attributed to him by Fuentes at the time of her discharge.
Mendez' testimony on both direct and cross-examination consisted in the main of
flat denials of the testimony of all witnesses called by the General Counsel. Close
examination of the record reveals that both Walker and Mendez testified in the main
as regards Davila, who the Trial Examiner has found above to have been the "key"
to the disposal of all issues herein.
Conclusions as to Fuentes
Quite frankly , the Trial Examiner was, at first blush , inclined to be somewhat
skeptical about accepting the testimony of Quinones and Fuentes as regards their
conversations with Mendez and Walker at the time of their discharges . However,
after long and careful consideration he credits their account of what transpired at
the time they were discharged . The extensive testimony both oral and documentary
as concerns the Respondent 's position as regards Davila has persuaded the Trial
Examiner that all three of these girls were discharged because of the incident of
November 20, 1953, which has been fully described above. As he sees it the Respond-
ent discharged these employees to "nip-in-the -bud," so to speak , any idea that the
employees might gather from Davila as regards unionization of the plant.
Another factor that has been persuasive as regards Fuentes, is the position of the
Respondent as stated by its counsel at the onset of her testimony on cross-examina-
tion. As indicated above he stated that she was discharged because of her lack of
aptitude and ability . Her personnel record shows that she had "ability." Moreover,
the Respondent kept her in its employ regardless of her alleged absenteeism until her
participation with Davila in the activities described above.
In the circumstances and after due consideration the Trial Examiner is thoroughly
convinced that Matilde Fuentes was discharged by the Respondent on November 23,
1953 , for precisely the same reasons as he has found above as regards Davila and
Quinones ; and that by such conduct the Respondent engaged in conduct violative
of the rights guaranteed employees in Section 7 of the Act, and specifically violative
of Section 8 (a) (3) and (1) thereof.
At this stage of the report the Trial Examiner directs attention to the testimony of
Maria Luisa Fuentes and Aglae Rodriguez De Arroyo . In substance , both supported
the testimony of Davila, Quinones, and Matilde Fuentes as regards the events of
November 20, 1953. The importance of their testimony to the Trial Examiner in
his ultimate resolution of the issues herein is that they corroborated the testimony of
the discriminatee as regards Davila's activities at the time . Both testified that Davila
had the edition of "El Mundo" which has been referred to above. Their testimony has
been duly considered and credited by the Trial Examiner in regard to what they
observed and witnessed at the time.
The importance of the above finding is that it refutes Mendez' denial that she had
knowledge of the "El Mundo" incident . Since he has resolved the issue he sees no
necessity for further comment in this regard.
WARNER BROTHERS COMPANY OF P. R., INC. 197
Interference with, Restraint , and Coercion
D. The events of December 3, 1953, and what followed thereafter
On the morning of December 3, 1953, Juan Eugenio Suarez, janitor in the
Respondent 's plant at all times material herein, went to Guaynabo on an errand
for Mendez and Haddock. While in Guaynabo he met Davila, Quinones, and
Fuentes who were engaged in activities on behalf of the Union at the time. With
them, according to Suarez, were three men. The record is not too clear as to
their identity. As the Trial Examiner sees it they were representatives of the
American Federation of Labor, who were assisting Davila and others in their
campaign to unionize the Respondent 's employees.
Davila testified that she asked Suarez to sign an application for membership
in the Union, and that he refused to do so. Her testimony in this regard was
corroborated by other witnesses, and is fully credited by the Trial Examiner.
Suarez' testimony is not too clear as to just what he was asked to sign, nor
as to the identity of the men, except to the extent that they had something to
do with "labor " After he had completed his errand he returned to the plant.
Upon arrival he repotted the incident to Haddock who informed Mendez. The
latter then went to Walker and gave him the information. At about noon as
the girls were preparing to leave the plant for lunch in Guaynabo and elsewhere
nearby Walker made a speech to them. He spoke in English and Mendez inter-
preted his words in Spanish to the employees.
There are several versions of the speech in the record. In the considered
opinion of the Trial Examiner the best account of the incident is found in the
testimony of Maria Luisa Fuentes. It follows below:
Q. All right, proceed, what happened on that day?
A. On that day about twelve o'clock noon when we left, Mr. Walker kept
us there and told us that in Guaynabo there were some girls with some papers
and God torbid that we should sign those papers, and he told us that we
should go on the side opposite from where the girls were, because he had
called the Department of Labor on the phone, he said, and they told him
that they had no agent at Guaynabo with papers. Then he went on ahead
of us-
Q. Just a minute , before you go on. Did he mention who these girls were
that were in Guaynabo?
A. Yes, he did.
Q. Who did he say they were?
A. Matilde, Carmen, and Paula.
Q. When you say Paula, you mean Mrs. Paula Davila?
A. Yes, sir.
Q. And when you say Carmen, do you mean Carmen Gloria Quinones?
A. Yes, sir.
Both Walker and Mendez denied that the names of either Davila, Quinones,
or Fuentes were mentioned in the speech. The gist of their testimony was that
all that Walker said was that there were some men from the Department of Labor
in Guaynabo, and that he had called the "Department of Labor and Fomento,
because I know that if they were from the Department of Labor and Fomento
they would come in to my office. If they ask you to sign any paper make sure
of what you sign." An excerpt from Mendez' testimony follows below:
Q. Did he make any statement to them that there was a union involved in
this?
A. Oh. no.
Q. Did he make any statement to them that they should not sign anything?
A. No, he never said that.
Q Did he tell them that they should walk on one side of the street, so
that they would not see these people?
A. I don't remember that.
Q. Did he in his talk make any mention of Paula Davila?
A. No, he didn't.
Q Or Carmen Gloria Quinones"
A. No, he didn't.
Q. Or Matilde Fuentes)
A. No, he didn't mention her at any time.
Q. Did he mention any girls at all?
A. No
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Juan Eugenio Suarez' version of the speech was that Walker did mention Davila,
Quinones, and Matilde Fuentes therein. He further testified that Walker also said in
substance that if any of the employees "saw these people" in Guaynabo they were
to tell them to come see him at the plant.
In the considered opinion of the Trial Examiner, Suarez' testimony is the "key,"
so to speak. to the resolution of the credibility of the witnesses as regards just what
Walker said in his speech to the employees. Suarez impressed the Trial Examiner
in the main as an honest witness. In the circumstances he credits Maria Luisa
Fuentes' account of the speech, since she likewise impressed the Trial Examiner
as a credible witness. By such resolution of the testimony the Trial Examiner
finds that neither Walker nor Mendez gave a full and true account of the incident.
After the speech Walker got in his station wagon and drove into Guaynabo. Suarez
accompanied him. The record indicates that Victor Martinez, assistant manager of
the plant, was also with Walker on this occasion and acted as interpreter for him in
his conversations with Davila, and other persons on that day, and as such participated
in the events that followed.
The record is somewhat confusing as to just what Walker did when he arrived in
Guaynabo at noon on December 3, 1953. From what the Trial Examiner gleans
from the credible testimony of all witnesses, particularly that of Davila, Walker
stopped his car and accompanied by Martinez went over to where Davila, Fuentes,
and Quinones were seated and asked them the whereabouts of the men from Insular
Department of Labor. He was informed by Matilde Fuentes that they had left.
Among those in the group was Benita Suarez of whom more anon below.
The records shows that Walker stayed in town about an hour before returning to
the factory. While he was there many of the employees were walking around on
the streets.
As the Trial Examiner sees it, it is the contention of the General Counsel that
Walker's activities in Guaynabo constituted "surveillance," of the employees, and
that by such conduct the Respondent interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed them in Section 7 of the Act, and
consequently violated Section 8 (a) (1) of the Act.
The Trial Examiner is of the opinion that the record does not support the General
Counsel's position in this regard. True there is considerable suspicion that the pur-
pose of his trips to Guaynabo on the clay in question were for the purpose of "surveil-
lance" of the conduct of the employees, and in particular to see who engaged in con-
versation with Davila, Quinones, and Matilde Fuentes and that by such conduct
interfered with the rights of the employees to discuss their problems, and to join or
refrain from joining the Union. But as indicated above the Trial Examiner is not
convinced that the record as a whole supports the General Counsel's position in this
regard. Findings of fact cannot be predicted on suspicion, they must be supported
by substantial evidence. In such circumstances the Trial Examiner will recommend
that this particular allegation in complaint be dismissed.
This is not to say that other allegations of this nature in the complaint are not sup-
ported by substantial evidence when considered in the light of the whole record. The
Trial Examiner is convinced that Walker's request to the employees to refrain from
talking to Davila, and her companions, constituted interference with, restraint, and
coercion. It must be remembered that the Trial Examiner has found above that
Davila, Quinones, and Matilde Fuentes were discharged for engaging in "protected
concerted activities." In the circumstances the Trial Examiner is convinced that it
is reasonable to infer that the intent of Walker's speech was to urge and warn the
employees to refrain from discussing their problems with Davila and the others.
That the speech had precisely that effect is supported by credible testimony in the
record. Several witnesses, including Davila, testified to the effect that when the girls
from the plant came into town that day, they, for the most part, avoided her and those
with her. Her testimony in this regard was as follows:
Q. So you and these other girls were waiting in front of this tobacco factory
and waiting for the other girls to go by, is that right?
A. Yes.
Q. Now, after twelve o'clock of that day, were you still there at the tobacco
factory entrance?
A. Yes, sir, until all of them had returned to the factory.
Q. Now, did you see the girls walking through town on that day after the
noon hour?
A Yes, sir.
Q. Did you solicit them to sign these papers for you that you had?
A. I couldn't do so.
WARNER BROTHERS COMPANY OF P. R., INC. 199
Q. Why couldn't you?
A. Because Mr. Walker was escorting or following them in his station wagon.
Q. When did you see Mr. Walker on that day, in the noon hour?
A. It was about between twelve to twelve-ten or twelve-fifteen.
Q. Now you say you saw these other girls walking into town from the fac-
tory. Will you tell us whether Mr. Walker came in with them, or came after
them, or what was the situation?
A. The girls took the opposite side from where we were.
In view of the foregoing the Trial Examiner is convinced and finds that the Re-
spondent by the conduct described immediately above, interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed them in Section 7
of the Act, and therefore was violative of Section 8 (a) (1) of the Act.
There yet remains for disposal in this section of the report, the allegation in the
complaint that the Respondent likewise interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed them in Section 7 of the Act by.
(a) urging, persuading, and warning its employees by threats of economic and
other reprisals and by promises of benefit to refrain from assisting, becoming, or
remaining members of the Union and engaging in or continuing to engage in
concerted bargaining or other aid or protection.
After a close and careful perusal of the entire record the Trial Examiner is con-
vinced that it does not support the above allegation by substantial evidence. As a
matter of fact he finds little if any evidence to support it. In the circumstances he
will recommend that this particular allegation be dismissed in its entuety.
E. The alleged discriminatory discharge of Benita Suarez
Suarez was hired by the Respondent on July 21, 1953, and discharged on Decem-
ber 4, 1953. At the time of her discharge she was a floor girl. Her duties consisted
of delivering work to the machine operators. Before that she had worked in two
other departments as an operator. She admitted that while so engaged that she
was not a fast operator, and the record indicates that this was a factor in her being
made a floor girl. The events leading up to her discharge were as follows.
On the morning of December 3, 1953, she was in Guaynabo where she planned to
take a bus to Santurce to deliver some material to her dressmaker. While she was
in Guaynabo she met Davila, Quinones, and Matilde Fuentes in the Alamo drugstore.
While there Davila persuaded her to sign an application for membership in the
Union. She was with Davila and the other girls at the time Walker came by and
talked to them about the "men" from the Insular Department of Labor. Walker
admits that he saw Suarez twice that morning in Guaynabo. The first time at about
9 or 10 a. m. when he went after the mail, and the second time when she was with
Davila.
Suarez further testified that on December 2, 1953, she told one of her supervisors,
Provi Sanchez, that she would be absent the next day, December 3, to take a dress
to her dressmaker and that Sanchez told her that it would be all right. Suarez'
testimony in this regard stands uncontradicted and undenied in the record, since the
Respondent did not choose to call Sanchez as a witness, and no showing was made
at the hearing herein that she was unavailable as such. In the circumstances the
Trial Examiner credits Suarez' testimony in this regard.
Suarez further testified that her mother was ill on the morning of December 3,
1953, and that this necessitated her getting a late start to Guaynabo and Santurce.
On the morning of December 4, 1953, she reported to work as usual Upon her
arrival at the plant she was informed by some of her fellow employees that they had
learned that she had signed a union card and that ". . . if I had signed I had to notify
the office about it." She then went to Mendez and told her that she had signed such
a card. At the same time she told Mendez that she had not reported to work the
day before because her mother was ill and that she had also gone to see her dress-
maker. Mendez then informed her that Walker had seen her in Guaynabo the day
before. Mendez then took her to Walker's office. Present in the office at the time
were Walker, Mendez, Martinez, and Walker's secretary. Shortly after she entered
the office Walker, Mendez, and Martinez left and went into another room. Upon
their return they gave her a paper written in Spanish. Her testimony as regards
this incident was as follows:
Q. Who acted as interpreter for you on that occasion?
A. I don't know because they went out back somewhere to make out some
paper, a paper which they handed me to read.
879288-56-vol. 113-14
200 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
Q. Was it written in Spanish?
A. Yes, sir.
Q. What did the paper state?
A. As far as I remember it said that in the six months that I had been work-
ing there I had not accomplished any type of work, that I had not been able
to do any type of work; that I had been absent from work the day before when
they most needed me, and that the excuse I had stated was that my grand-
mother was sick, and I didn't have any grandmother, and also that 1 had no
more right to work any longer in that factory. I don't remember what else
the paper said.
Q. Did you sign that paper?
A. No.
Q. Why didn't you sign it?
A. Because I wasn't told to sign it.
Q. Who showed you the paper?
A. Mr. Martinez.
Q. Weren't you asked to sign the paper?
A. No.
TRIAL EXAMINER: Let me get something straightened out. In this paper, do
I understand the witness ' testimony to be that there was a statement in there
that the excuse she had given was that her grandmother was sick? Is that
what she testified was on the paper?
WITNESS: The paper said that I had not been to work that day because my
grandmother was sick, and I didn't have a grandmother.
Shortly after her interview with Walker she left the plant.
The Respondent contends that Suarez was discharged for three reasons: (1) That
she had a high record of absenteeism throughout her tenure of employment; (2) that
she absented herself without leave on December 3, 1953; and ( 3) that she lied
when she told Mendez that in addition to having an appointment with her dressmaker
on December 3, 1953, she was unable to come to work on that date because her
grandmother was ill. In other words the Respondent contends that Suarez was
discharged for just cause.
At the hearing herein the Trial Examiner admitted in evidence Suarez' personnel
record. It is set forth below:
WARNER BROTHERS , INC. PUERTO Rico.
Re Benita Suarez Gonzales
This girl was hired on July 21 , 1953; after receiving three days basic train-
ing. She was assigned to operation #22, which is top and bottom facing.
She proved to be very slow, and after three weeks, she could only make 2 (two)
dozen, per day. On August 8 she was transferred to another section of the
room , for training in operation 15, which is net-face around, where she also
proved to be very slow, with an average of 12 dozen daily; which is way below
the daily labor requirements. When questioned about her low production,
she answered, "What else do you expect me to do?"
Another opportunity was given to her on November 16th. This time as a
floor-girl. Here she also was very slow and her attention was called several
times toward this disposition ; in order to help her keep her job. She was sup-
posed to keep the girls on the machines, supplied with work, and she had to
be told several times during the day, that she was not doing so.
Then on December 10, during working hours, she was seen in town and
when a reason was required from her, she said in the first instance that she
was taking some material over to her dressmaker , and in the next instance,
when she realized how poor the excuse was, she stated that her grandmother
was sick.
As a whole, this girl's attitude toward her work and the company 's policies
and regulations, showed a great lack of interest and was below average.
(Signed ) LLOYD B. WALKER,
Manager.
(Signed) ROSITA MENDEZ,
Supervisor.
(Signed) Luz CH HADDOCK,
Supervisor.
In addition the Respondent contends that it had no knowledge of Suarez' mem-
bership in the Union or of her activities on its behalf, and that consequently this
could not have been a factor in her discharge.
WARNER BROTHERS COMPANY OF P. R., INC. 201
Conclusions as to Suarez
It has been well said that hard cases make bad law. So is it here. The case as to
Suarez is most difficult. The solution of the case as to her in the final analysis rests
on the resolution of the credibility of the witnesses. Another factor is certain
undenied and uncontradicted testimony in the record as regards Suarez.
As indicated above one of the Respondent's contentions is that Suarez did not
notify it that she would be absent from work on December 3, 1953. The uncon-
tradicted and undemed testimony in the record is to the contrary. The Trial
Examiner has found above that Suarez went to one of her supervisors, Provi Sanchez,
and received permission from her on December 2, 1953. The Respondent offered
no pertinent testimony as regards this incident. It did not choose to call Sanchez
as a witness on its behalf, nor make any showing at the hearing herein that she was
unavailable as such.
Now as to the Respondent's contention that Suarez lied when she told Mendez
that a further factor in her absenting herself from work on December 3, 1953, was
that her grandmother was ill. Suarez testified that it was her mother who was ill
and that she had no grandmother. Her testimony in this regard is credited by the
Trial Examiner and he finds that she did not make the statement attributed to her
by the Respondent.
Suarez impressed the Trial Examiner as an honest witness. At the time she
appeared before him she was 21 years old. Her demeanor as a witness was excellent.
In the circumstance and upon the findings made above, the Trial Examiner
credits Suarez' account of the events that occurred on December 3, 1953, and rejects
the contentions of the Respondent in this regard.
We now come to its contention that it was without knowledge that Suarez had
signed a union card. In the considered opinion of the Trial Examiner there is sub-
stantial evidence to the contrary in the record. It must be borne in mind that Suarez
testified that she went to Mendez upon the advice of certain of her coworkers and
told Mendez that she had signed a union card on December 3, 1953, and that shortly
thereafter she was discharged. The Trial Examiner has carefully examined the
record, particularly the testimony of Mendez, and he finds no testimony by her or
any other witness as regards this incident. The only testimony in the record that
might possibly have some relevancy in this regard is that of Mendez at page 352 of
the record. There she testified as follows:
Q. Now on December 3 at lunch time and thereafter, did anyone tell you
that any of the girls had signed any papers or cards?
A. Nobody did, no.
In view of the foregoing the Trial Examiner credits Suarez' testimony that she
told Mendez that she had signed a union card on December 3, 1953. Consequently
he finds that the Respondent had knowledge of Suarez' activities on behalf of the
Union at the time it discharged her.
In view of all of the above and upon the record considered as a whole the Trial
Examiner is convinced and finds that the reasons advanced by the Respondent for
the discharge of Benita Suarez were mere pretext, and that the true motive for her
discharge was because of her union affiliation and concerted activities.
The Trial Examiner is not unmindful of the fact that Suarez was not an outstand-
ing employee , but it must be remembered that the Respondent retained her in its
employment despite this factor. It also must be remembered that she was seen with
Davila in Guaynabo on December 3, 1953, on at least two occasions by General
Manager Walker. Though the Trial Examiner does not specifically find that this was
the primary reason for her discharge, nevertheless he did not completely disregard
the incident in reaching his ultimate conclusions herein.
In the circumstances , and upon the entire records considered as a whole, the Trial
Examiner finds that the Respondent discharged Benita Suarez on December 4, 1953,
because of her union and concerted activities, and that such conduct was in contra-
vention of the provisions of Section 7 of the Act, and therefore violative of Section
8 (a) (3) and (1) of the Act.
The Role of the Union in This Proceeding
Throughout the record there is testimony that the employees had had some con-
tact with officials of the American Federation of Labor in Puerto Rico before the
events of November 20 and December 3, 1953. Among those who were active in
this regard were Quinones and Matilde Fuentes. The record shows that they had
been in touch with Armando Rivera and one Juliano, at times material herein, presi-
dent of a local of the Union at a glass and paper factory in the area. The difficulty
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in resolving the issue as to whether the Respondent had knowledge of this activity on
the part of its employees is because it did not come out in the "open," "so to speak,"
until November 20, 1953, and thereafter on December 3, 1953. The record is too
vague to make a specific finding that the Respondent had knowledge of union activi-
ties as such , except as regards the "Dubinsky" incident on November 20, 1953. For
this reason the Trial Examiner has predicated his findings as regards Davila, Quinones,
and Matilde Fuentes on their concerted rather than union activity. The case as to
Suarez is the only discriminatee that he has found to be within the four corners of
the complaint on both union and concerted activities. For these reasons the Trial
Examiner has refrained from discussing the activities of Davila, Quinones, and
Matilde Fuentes as regards their visits to the union office in San Juan, and to the
Insular Department of Labor in San Juan and Rio Piedras. He feels that the General
Counsel 's case rests on sound ground as regards his findings as regards the discrimi-
natees regardless of whether they rest on either concerted or union activities.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with the operations of the Respondent set forth in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States , and tend to lead to labor disputes burdening and obstructing commerce
and the tree flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, the Trial
Examiner will recommend that it cease and desist therefrom and take certain affirma-
tive action to effectuate the policies of the Act.
Having found that the Respondent discriminatorily discharged Paula Davila Ramos,
Matilde Fuentes, Carmen Gloria Quinones, and Benita Suarez, it will be rec-
ommended that the Respondent offer to all of them immediate and full reinstatement
to their former or substantially equivalent positions, without prejudice to their
seniority or other rights and privileges, and that each be made whole for any loss
of pay she may have suffered by reason of the discrimination against her, by pay-
ment to each of them of a sum of money equal to that which each would normally
have earned as wages from the date of the discrimination to the date of the Respond-
ent's offer of reinstatement , less her net earnings during such period.4 The back
pay shall be computed in the manner established by the Board,5 and the
Respondent shall make available to the Board its payroll and other records to facili-
tate the checking of amounts due.
The preventive purposes of the Act will be thwarted unless the recommendations
are coextensive with the threat contained in violations of the Act herein found. It
will therefore be recommended that the Respondent cease and desist from infringing
in any manner upon the employees' rights guaranteed in Section 7 of the Act.
Upon the foregoing findings of fact, and upon the entire record in the case, the
Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Warner Brothers Company of P. R., Inc., is engaged in commerce within the
meaning of the Act.
2. American Federation of Labor is a labor organization within the meaning
of Section 2 (5) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act , the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a)
(1) of the Act.
4. By discriminating in regard to the hire and tenure of employment of Paula
Davila Ramos , Matilde Fuentes , Carmen Gloria Quinones , and Benita Suarez, there-
by discouraging membership in a labor organization , the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3)
of the Act.
5. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
s Crossett Lumber Company, 8 NLRB 440
F W Woolwoi th Company, 90 NLRB 289
WARNER BROTHERS COMPANY OF P. R., INC. 203
APPENDIX A
Total Doz
WEEK ENDING OCTOBER 2, 1953 Pi od
Op 15
Total
Op 16
Paula Davila Ramos---------------------------------------- 242 174
Carmen Gloria Quinones------------------------------------ 80 164
Isabel Garcia---------------------------------------------- 130 76
Mercedes Diaz--------------------------------------------- 180 120
Ana Maria Acevedo---------------------------------------- 188 150
Graciela Serrano------------------------------------------- 246 184
Nicolasa Catala-------------------------------------------- 192 136
WEEK ENDING OCTOBER 9, 1953
Paula Davila Ramos---------------------------------------- 256 236
Carmen Gloria Quinones------------------------------------ 174 130
Isabel Garcia---------------------------------------------- 120 120
Mercedes Diaz--------------------------------------------- 164 142
Ana Maria Acevedo---------------------------------------- 144 138
Graciela Serrano------------------------------------------- 222 164
Nicolasa Catala-------------------------------------------- 240 220
WEEK ENDING OCTOBER 16, 1953
Paula Davila Ramos---------------------------------------- 262 250
Carmen Gloria Quinones------------------------------------ 180 180
Isabel Garcia---------------------------------------------- 108 108
Mercedes Diaz--------------------------------------------- 146 130
Ana Maria Acevedo---------------------------------------- 246 246
Graciela Serrano------------------------------------------- 190 170
Nicolasa Catala-------------------------------------------- 182 182
WEEK ENDING OCTOBER 23, 1953
Paula Davila Ramos---------------------------------------- 306 290
Carmen Gloria Quinones------------------------------------ 274 220
Isabel Garcia---------------------------------------------- 138 108
Mercedes Diaz--------------------------------------------- 186 164
Ana Maria Acevedo---------------------------------------- 24 24
Graciela Serrano------------------------------------------- 252 198
Nicolasa Catala-------------------------------------------- 308 258
Carmen Lina Avila----------------------------------------- 36 34
Teofila Flores--------------------------------------------- 2 2
WEEK ENDING OCTOBER 30, 1953
Paula Davila Ramos---------------------------------------- 246 208
Carmen Gloria Quinones------------------------------------ 246 104
Isabel Garcia---------------------------------------------- 156 96
Mercedes Diaz--------------------------------------------- 186 174
Ana Maria Acevedo---------------------------------------- 212 148
Graciela Serrano------------------------------------------- 256 200
Nicolasa Catala-------------------------------------------- 210 114
Carmen Lina Avila----------------------------------------- 54 54
Teofila Flores--------------------------------------------- 18 18
WEEK ENDING NOVEMBER 6, 1953
Paula Davila Ramos---------------------------------------- 232 130
Carmen Gloria Quinones------------------------------------ 228 134
Isabel Garcia---------------------------------------------- 172 90
Mercedes Diaz--------------------------------------------- 138 114
Ana Maria Acevedo---------------------------------------- 154 138
Graciela Serrano------------------------------------------- 246 184
Nicolasa Catala-------------------------------------------- 224 138
Carmen Lina Avila----------------------------------------- 60 58
Teofila Flores--------------------------------------------- 24 24
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Total Dog.
WEEK ENDING NOVEMBER 13, 1953 Prod.
Op 15
Total
Op 16
Paula Davila Ramos---------------------------------------- 296 214
Carmen Gloria Quinones------------------------------------ 210 208
Isabel Garcia---------------------------------------------- 130 110
Mercedes Diaz--------------------------------------------- 76 122
Ana Maria Acevedo---------------------------------------- 162 114
Nicolasa Catala-------------------------------------------- 214 214
Graciela Serrano------------------------------------------- 204 118
Carmen Lina Avila----------------------------------------- 78 78
Teofila Flores--------------------------------------------- 34 48
WEEK ENDING NOVEMBER 20, 1953
Paula Davila Ramos---------------------------------------- 206 130
Carmen Gloria Quinones------------------------------------ 146 134
Isabel Garcia---------------------------------------------- 174 4
Mercedes Diaz--------------------------------------------- 166 6
Ana Maria Acevedo---------------------------------------- 244 28
Nicolasa Catala-------------------------------------------- 248 166
Graciela Serrano------------------------------------------- 236 106
Carmen Lina Avila----------------------------------------- 106 96
Teofila Flores--------------------------------------------- 60 60
Metco Plating Company and Local No. 1, International Union,
Metal Polishers, Buffers, Platers, and Helpers , AFL. Case No.
7-CA-1074. July 18,1955
DECISION AND ORDER
On February 7, 1955, Trial Examiner Lee J. Best issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. The Trial Examiner also found that the
Respondent had not engaged in certain other unfair labor practices
alleged in the complaint and recommended dismissal of those allega-
tions. Thereafter, the Respondent, the General Counsel, and the
Union filed exceptions to the Intermediate Report and supporting
briefs.'
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.2
1 Respondent also requested oral argument. In our opinion, the record, the exceptions,
and the briefs fully present the issues and the positions of the parties. Accordingly, the
request is denied.
2 The Trial Examiner resolved many of the credibility issues without specifically dis-
cussing evidence in the record which was contrary to his ultimate findings. The Board
113 NLRB No. 23.