Panaderia "La Reguladora"

In the Matter of JOSE GARCIA DONIS, D/B/A PANADERIA "LA REGULADORA" and FEDERACION LIBRE DE Los TRABAJADORES DE PUERTO Rico Case No. 38-CA-50.Decided January 31,1950 DECISION AND ORDER On June 16, 1949, Trial Examiner Merritt A. Vickery issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices in violation of Section 8 (a) (1), (3), and (5) of the National Labor Relations Act, as amended, 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. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report with supporting briefs. The Board 1 has reviewed the rulings of the Trial, Examiner at the hearing and finds that no prejudicial error was committed. The rul- ings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs filed by the parties, and the entire record in the case and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the exceptions and modifications noted below. While we agree with the Trial Examiner's conclusion that the Board has jurisdiction in this case, we do not adopt his rationale on this issue. The Board's views on the question of jurisdiction appear in our decision in Ursula Cervantes, et al. d/b/a Panaderia Sucesion Alonso, 87 NLRB 877. On all other issues, the findings, conclusions, and recommendations of the Trial Examiner are affirmed. 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, Jose Garcia Donis, d/b/a Panaderla "La Reguladora," and its officers, agents, successors, and assigns shall: Pursuant to the provisions of Section 3 (b) of the Act , as amended , the National Labor Relations Board has delegated its powers in connection with this proceeding to a , three-member panel [Chairman Herzog and Members Reynolds and Murdock]. 88 NLRB No. 95. 347 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from : (a) Refusing to bargain collectively with Federation Libre de Los Trabajadores de Puerto Rico as the exclusive representative of all persons employed as bakers in Respondent's Panaderia "La Regula- dora"-exclusive of all other employees and supervisors within the meaning of the Act; (b) Engaging in like or related acts or conduct interfering with, restraining, or coercing his employees in the exercise of the rights to self-organization, to form labor organizations, or to join or assist Federation Libre de Los Trabaj adores de Puerto Rico, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, as guaranteed in Section i of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Immediately offer to Felipe Gonzalez Soto, Gerardo Cruz de Jesus, Felipe Hernandez Bonilla, Jose Ramon Ocasio Collazo, Ventura Cruz Calderon, Simon Caceres Garcia, Luis Davila Carrion, Santiago Enrique Flores, and Felipe Gonzalez, Jr., and to each of them, rein- statement to his former, or to a substantially equivalent, position, without prejudice to his seniority or other rights and privileges; (b) Make whole each of the above-named persons for any loss of pay he may have suffered by reason of Respondent's discrimination against him, by payment to him of a sum of money equal to the amount which he normally would have earned as wages from the date of his discharge to the date of Respondent's offer of reinstatement, less his net earnings during said period; (c) Upon request, bargain collectively with the Union above named, as the exclusive representative of the employees in the unit above described and, if an agreement is reached, embody such understanding in a signed agreement; (d) Post at his Panaderia "La Reguladora," in Rio Piedras, Puerto Rico, copies (in Spanish translation) of the notice attached to this Decision and Order and marked Appendix A. Said copies shall be furnished by the Regional Director for the Fifth Region, and shall, after being signed by Respondent, be posted by Respondent and main- tained by him for sixty (GO) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material; (e) Notify the Regional Director for the Fifth Region, in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply therewith. PANADERIA "LA REGULADORA" APPENDIX A NOTICE TO ALL EMPLOYEES 349 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, I hereby notify my employees that : I WILL NOT interfere with, restrain, or coerce the organization and membership of my employees, or any of them, in FEDERACION LIBRE DE LOS TRABAJADORES DE PUERTO Rico, or any other labor organization, or with the exercise of their right to bargain collec- tively through representatives of their own choosing and to en- gage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. All my employees are free to become or remain members of this union or any other labor organization. I WILL bargain collectively upon request with the above-named union as the exclusive representative of all employees in the bar- gaining unit described herein, with respect to rates of pay, hours of employment, or other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All bakers employed at Panaderia "La Reguladora," in Rio Piedras, Puerto Rico, but excluding all other employees and all supervisors as defined in the National Labor Rela- tions Act. 1 WILL offer to each of the employees named below immediate and full reinstatement to his former, or to a substantially equiva- lent position, without prejudice to any seniority or other rights and privileges he previously enjoyed, and will make him whole for any loss of pay suffered as a result of the discrimination against him. Felipe Gonzalez Soto Simon Caceres Garcia Gerardo Cruz de Jesus Luis Davila Carrion Felipe Hernandez Bonilla Santiago Enrique Flores Jose Ramon Ocasio Collazo Felipe Gonzalez, Jr: Ventura Cruz Calderon JOSE GARCIA DONIS, d/b/a PANADERIA "LA REGULADORA," Employer. By ---------------------------------------- (Representative ) ( Title) Dated -------------------- 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Lewis Moore, Esq., of Santurce, P. R., for the General Counsel. Benicio F. Sanchez Catana, Esq., of San Juan, P. R., for Respondent. Rafael Molina, of Puerta de Tierra, P. R., for the Union. STATEMENT OF THE CASE Upon a charge filed by Federacion Libre de Los Trabajadores de Puerto Rico, hereinafter referred to as the Union, on August 30, 1948, and an amended charge filed by it on September 7, 1948, the General Counsel of the National Labor Relations Board, by the Regional Director for the Fifth Region, issued a com- plaint, dated January 31, 1949, against Jose Garcia Donis, doing business as Panaderia La Reguladora, hereinafter referred to as the Respondent. That complaint alleged that Respondent had engaged in unfair labor practices affecting commerce within the meaning of the National Labor Relations Act, as amended' Copies' of the charges and the complaint were served upon Respondent and the Union. With respect to unfair labor practices, the complaint alleged (1) that since on or about August 20, 1948, Respondent interfered with, restrained, and coerced his employees in the exercise of rights guaranteed by the Act; (2) that on or about August 20, 1948, Respondent discharged because they joined or assisted the Union, or because they engaged in concerted activities, Felipe Gonzalez Soto, Gerardo Cruz de Jesus, Felipe Hernandez Bonilla, Jose Ramon Ocasio Collazo, Ventura Cruz Calderon, Simon Caceres Garcia, Luis Davila Carrion, Santiago Enrique Flores, and Felipe Gonzalez, Jr.; and (3) that from and after August 20, 1948, Respondent has failed to recognize or to bargain collectively with the Union as the representative of his employees. Respondent filed an answer denying that he was engaged in commerce within the meaning of the Act and that he had committed any of the unfair labor practices alleged. Pursuant to notice, a hearing was held before Merritt A. Vickery, Trial Exam- iner, designated therefor by the Chief Trial Examiner. The hearing was held on March 2, 1949, at Santurce, Puerto Rico. All parties were represented by counsel, participated in the hearing and were afforded opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. At the close of the General Counsel's case, Respondent moved for a dismissal. The motion was overruled and Respondent rested without introducing testimony. . Upon the entire record and from my observation of the-witnesses, I make the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Respondent operates a small bakery at Rio Piedras , Puerto Rico. During the year 1948, he purchased flour to a value of $36,000, over 1,000 pounds of lard, 2,000 pounds of wrapping paper and 700 pounds of yeast. The lard, paper, and yeast were of the approximate value of $5,000. Also, he purchased sugar and 129 USC See. 151 et seq. PANADERIA "LA REGULADORA" 351 salt of about X2,000 value. All these items were purchased locally by Respondent from Puerto Rican dealers. To the knowledge of Respondent, the flour and lard had originated in the continental United States and had been imported to Puerto Rico by the dealers from whom he purchased them. The wrapping paper and the yeast may have been imported from continental United States, or they may have been of Puerto Rican origin. The sugar and salt originated in Puerto Rico. Respondent produced bread and related products to an annual'value of about $75,000. All the product was sold locally, in Rio Piedras, Puerto Rico. II. THE LABOR ORGANIZATION INVOLVED Federacion Libre de Los Trabajadores de Puerto Rico is a labor organization, admitting to membership employees of Respondent. III. THE ALLEGED UNFAIR LABOR PRACTICES On August 19, 1948, seven of the nine bakers employed by Respondent attended a meeting at the Union hall and joined the Union. The seven then signed a designation of the Union as their collective-bargaining representative. On August 20, 194S, Respondent proposed a reduction in bakers' pay from $4 to $3.50 per bag of flour processed. A spokesman for the employees stated that they were now members of the Union and that they could not agree to the reduction without consultation among themselves and with the Union. Respond- ent thereupon stated that the employees and the Union "could all go to Hell," and that he did not want to see them around the bakery any more. They left. On the following day, the employees, accompanied by the union organizer, Rafael Molina, went to see Respondent. Molina stated that he represented the bakers and wanted to discuss the episode of the preceding day and to negotiate a contract. Respondent recognized Molina as the representative of his employees and agreed to reinstate them on the following day. He agreed, at least tenta- tively, to enter into a collective-bargaining agreement when certain changes he was then making in his machinery should be completed, estimated to be about a week or 10 days later. August 22, 1948, the bakers reported for work, pursuant to Respondent' s agrt- meat with Molina. Respondent refused to reinstate them and threatened vio- lence unless they left. When Molina again sought to intervene on their behalf, Respondent wholly repudiated his promises of the day before and said that he would not sign a collective-bargaining agreement. Because of Respondent's statement that he would not sign an agreement, Molina did not prepare and submit one as had been agreed in the meeting of August 21. Respondent was present at the hearing and heard all of the testimony. He failed to testify or to offer any evidence. The above facts are, therefore, clearly established on the basis of credible, uncontradicted testimony. On the record there are two questions that must be answered before any con- clusions can be reached. (a) Is there a sufficient factual basis for establishment of jurisdiction? (b) Does Respondent's conduct, above. outlined, constitute one or more of the unfair labor practices alleged in the complaint? (a) Jurisdiction What has already been said in description of the character and size of Respond- ent's business is sufficient to demonstrate that its operation does not have a direct 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or substantial relation to trade, traffic, and commerce among the several States. It is sufficient to show that it could not have even a material effect bn the volume or the direction of flow of commerce within Puerto Rico. It is sufficient to show that Respondent's business is predominantly local in character. Hence, the conclusion seems inescapable that were it located in one of the States, the pro- ceeding would have to be dismissed either for want of jurisdiction or under the Board's rule of not accepting jurisdiction where it is apparent that so to do will not effectuate the purposes of the Act.2 Does the local character of the business involved require the dismissal of this proceeding, arising as it does not from a State but from Puerto Rico, an "insular possession"? The Act defines "commerce" to include not only that "among the several States" and that between any State, Territory, or foreign country and any other, but also that "within the District of Columbia or any Territory." a For regulatory purposes, the term "Territory" in a statute may include Puerto Rico. Whether it comes within a given congressional act depends upon the char- acter and aim of the act.' Following the amendment of the Act in 1947, a Statement of Policy was entered into by the Board, the General Counsel, and the Puerto Rico Labor Relations Board.` This read, in part: Under date of August 10, 1945, the National Labor Relations Board and the Puerto Rico Labor Relations Board agreed that the Puerto Rico Labor Rela- tions Board would act as agent of the National Labor Relations Board for enforcement in Puerto Rico of the National Labor Relations Act... . The recent passage of the Taft-Hartley Act . . . has given rise to serious administrative and procedural problems which make the continuation of the agency agreement unfeasible. .. . In terminating the present agency agreement . . . the plenary power of the Congress . . . over labor disputes and matters affecting representation aris- ing in the Territory of Puerto Rico is recognized. It is also recognized that in the Labor-Management Relations Act, 1947, . . . it was the apparent in- tent of Congress that State and Territorial agencies designed for the purpose of disposing of matters concerning representation and labor disputes be en- couraged to continue in their assigned functions over matters purely local in character. * e a * o z a For the present, under the administrative discretion vested in the National Labor Relations Board and the General Counsel, it is the opinion of the Board and General Counsel that the full exercise of plenary jurisdiction over all matters concerning representation and labor disputes in the Territory of Puerto Rico, especially those involving enterprises purely local in their opera- tion is not administratively feasible or desirable. It is appropriate, therefore, for the Puerto Rico Labor Relations Board to proceed on the basis of this statement concerning all cases arising in the enterprises listed above or others of similar character until the assertion of B Fred Montgomery, d/b/a Pereira Studio, 83 NLRB 587 (1949) : A. W. Smith, d/b/a 6.-1 Photo Service, 83 NLRB 564 (1949) ; Walter J. Mentzer, 82 NLRB 389 (1949). 3 29 USC Sec. 152. 4 People of Puerto Rico v. The Shell Company, 302 U. S. 253, 58 S. Ct. 107, 82 L. Ed. 235 (1937) and cases therein cited. 6 12 F. R. 7902, November 25, 1947. PANADERIA "LA REGULADORA" 353 jurisdiction by the National Labor Relations Board, or the General Counsel, or until this statement is modified. * * * s * a r Following the publication of this statement, the workers in a number of busi- nesses local in character took their problems to the Insular Board. It accepted jurisdiction and instituted proceedings. Early in 1948, a representation case arose involving a Puerto Rican taxicab company.' The General Counsel advised the Regional Office that it should be processed. When the Insular Board was informed of this assertion of jurisdic- tion, it dismissed its pending proceedings in a number of cases and notified the island labor unions to file petitions or charges involving even wholly local enterprises with the National Board. Thereafter, the charge in the instant case was filed. The General Counsel entertained it and asserted jurisdiction. This and two companion cases 7-- also involving small bakeries-are the first to arise since the amendment of the Act in 1947, and since the amendment, in that same year, of the Organic Act of Puerto Rico' to give that island a larger measure of autonomy and to assist insular agencies to assume increasing responsibility in civil administration. Prior to the 1947 Amendment of the National Labor Relations Act,' a num- ber of decisions were handed down, involving Puerto Rican business enterprises. Search has disclosed none in which jurisdiction over a predominantly local Puerto Rico business operation has been determined. In Ronrico Corporation, ° the Board specifically based its holding of jurisdic- tion upon the finding of substantial commerce between Puerto Rico and points in continental United States and foreign countries. In the decision, the Board stated that because of this it was unnecessary to decide whether the Act gave jurisdiction upon the ground that the Respondent was engaged in commerce "within a Territory." In The Texas Company,'1 the Trial Examiner based his finding of jurisdiction upon the fact that the Respondent received the bulk of the petroleum products in which it dealt from foreign countries and that it shipped one-third of its output in foreign and interstate commerce. The Board adopted the Examiner's findings with no comment regarding jurisdiction, except a footnote reading : Respondent contends that the Board does not have jurisdiction in the instant case, inasmuch as the Act has no application to Puerto Rico since Puerto Rico is not a "territory" and is not within the coverage of Section 2 (6) of the Act defining commerce. For reasons stated in Matter of Ron- rico Corporation, 53 NLRB :1137, we find no merit in this contention. In Chase National Bank of New York, San Juan, Puerto Rico Branch,'" the Trial Examiner spelled out in detail the substantial and direct effect of Respondent's business activities upon interstate and foreign commerce and based his finding of jurisdiction upon that effect. Having done this, he added the sentence : 6 Capitulo de Choferes de San Juan, Case No. 3S-CB-2. This proceeding was settled and, thus, did not come before the Board. 7 The other two cases are : Ursula Cervantes, et at., d/b/a Panaderia Sucesion Alonso, Case No. 38-CA-13, and Matter of Carmelo 2uctell, d/b/a Panaderia La Esperana, Case No. 38-CA-18. 61 Stat. 770 et seq. ° That Amendment did not change the wording of the phrase covering the Board's territorial jurisdiction. 10 53 NLRB 1137 (1943). 1160 NLRB 424 (1945). 12 63 NLRB 656 (1945). 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Moreover, Section 2 (6) of the Act confers jurisdiction on the Board over an employer whose business is confined exclusively "within the District of Columbia or any Territory of the United States." The Board adopted the findings of the Trial Examiner without discussion of the question of jurisdiction. In The Royal Bank of Canada, San Juan;Bran ch," the facts showing the direct and substantial effect of Respondent's business activities upon interstate and foreign commerce were set forth in detail. The Board held that jurisdiction existed for the reason set forth in the Ronrico and Chase National Bank decisions. In Matter of Gonzales Padin Company, Inc.,14 the Trial Examiner spelled out the jurisdiction by finding in detail the facts making clear the direct and sub- stantial effect of Respondent's business activities upon interstate commerce. He omitted all reference to the question of jurisdiction over commerce "within a territory" except for a footnote reading : It is considered unnecessary, as the Board considered it unnecessary in the Ronrico case ..., to decide whether Congress intended to include within the scope of the Act, commerce within Puerto Rico as well as that between Puerto Rico and outside points. The Board adopted the Trial Examiner's findings and conclusions, but went on to say : The Trial Examiner considered it unnecessary to determine whether com- merce within Puerto Rico as well as that between Puerto Rico and outside points is within the scope of the Act, since he found that the Respondent's operations affected commerce between Puerto Rico and the United States. We think it clear that commerce within Puerto Rico is included, in the scope of the Act and accordingly, even if the Respondent's imports from the United States be ignored, jurisdiction is well founded. In a proceeding brought to enforce the decision in this case," the Court said : The Respondent contends that although it imported large quantities of merchandise from the United States, that merchandise was acquired only for local retailing and, therefore, lost its "interstate character" upon arrival at its stores. Here, it says, its business was entirely local in nature and did not bring it within the jurisdiction of the Board. We do not agree. We think that even laying the Respondent's imports from the United States to one side, as the Board did, nevertheless the Board's jurisdiction over the Respond- ent is well founded. It is established by several decisions of the Supreme Court and this Circuit. Court of Appeals that Puerto Rico is a completely organized territory, although not one incorporated into the United States, and that as such the power of Congress to legislate respecting it is plenary, subject only to such constitutional restrictions as apply to the situation, none of which concern us here. . .. Thus Congress can constitutionally regulate purely intra-terri- torial commerce. And we think there can be no doubt that Congress must have intended to exercise this power when in Section 10 (a) of the National Labor Relations Act it gave the Board authority to prevent any person from '$ 67 NLRB 403 (1946). 1468 NLRB 520 (1946). 15 N. L. R, B. v. Gonzales Padin Company, Inc., 161 F. 2d 353 (C. A. 1, 1947). PANADERIA "LA REGULADORA" 355 engaging in any unfair labor practice affecting commerce and in Section 2 (6) of the Act defined commerce to include "trade . . . within ... any Territory." The anomaly of the situation created by the quoted dicta-of Trial Exam- iners, the Board and the court-in these Puerto Rico cases, when considered in conjunction with the above cited recent Board decisions in regard to predomi- nantly local businesses in continental United States, hardly needs to be pointed out. The Board does not act in local affairs in the States ; nearby, with a common language, with a generally predominant industrial economy, with a generally lit- erate and educated body of labor developed by experience to a sense of respon- sibility, with managements generally equipped by experience to deal with labor of that character, with a common sociological and legal background, and with a law drafted to meet conditions existing in the United States. But in Puerto Rico, according to the dicta, the Board will act in affairs wholly local in charac- ter, which cannot affect commerce outside the island. And this is in spite of the facts that Puerto Rico is separated from the States by over a thousand miles of ocean, has a different language, has a predominately agricultural economy, has a bcdy of labor largely illiterate, even more largely uneducated, and in general not developed to a sense of responsibility, has managements generally experienced in dealing only with uneducated and irresponsible labor and in dealing with `it upon a paternalistic basis, has a greatly different sociological and legal back- ground, and, also, in spite of the fact that the Act was drafted without regard to its applicability to Puerto Rican conditions and problems 18 The anomaly is no less from the viewpoint of legal theory than from that of its practical application, above considered. Puerto Rico, although not a "Terri- tory" but a "Possession" may be regarded as included in the term "Territory" because it has powers of local autonomy.17 Because of this, it, so far as labor relations are concerned, is to be within the orbit of national control even as to matters of predominantly local character. Thus, the Board's jurisdiction operates to the negation of the very autonomy upon which it rests. The Board's decisions from Alaska and Hawaii throw no light upon the juris- dictional problem. All arose from businesses which were of direct and sub- stantial effect on interstate commerce 18 Nor are those arising from the District of Columbia of great value here. Many involve interstate commerce and state that jurisdiction is based upon the fact of its existence.19 Some which purport to be based on the fact of commerce "within the District" indicate that the decision largely rested upon a demon- strated interstate commerce connection.20 And even in, those in which jurisdic- tion rests squarely upon the fact of commerce "within the District," 21 the underlying differences of fundamental fact between Washington, D. C. and a dis- tant territory with an autonomous government, weaken their authority to compel 10 The legislative history of both the Wagner and the Taft-Hartley Acts shows that Puerto Rico was not considered. 17 People of Puerto Rico v. The Shell Company, supra. "Alaska Juneau Gold Mining Company, 2 NLRB 125 (1936) ; McCabe, Hamilton of Renny, Ltd., 3 NLRB 547 (1937) ; United States Smelting, Refining and Mining Company, 27 NLRB 383 (1940). 19 Nolan Motor Company, Inc., 2 NLRB 357 (1936) ; Washington Branch of the Sun Life Insurance Company, 15 NLRB 817 (1939) ; Home Beneficial Association, 17 NLRB 1027 (1.939). 20 See, Willard, Inc., 2 NLRB 1094 (1937). 21 Club Troika, Inc., 2 NLRB 90 (1936) ; Westchester Apartments, Inc., 17 NLRB 433 (1939) ; Rutland Court Owners, Inc., 44 NLRB 587 (1942). 882191-51 24 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD .a finding of jurisdiction over Puerto Rican business enterprises of predominately local character. It must be conceded that the present Puerto Rico statute governing labor- management relations is such as to prevent the Board from ceding to the Insular Board, in accordance with Section 10 (a) of the Act, its Puerto Rican jurisdiction. But the question is not one of cession of a power admittedly possessed by the Board. Rather it is one of its possessions of power over purely local enterprises. Is the phrase "within any Territory" to be read as though it stood alone, and thus to take from the Insular Government and vest in the Board the jurisdic- tion over all labor disputes, no matter how local in character and how trivial? Or is the phrase to be read in conjunction with the stated policy of the Act, with jurisdiction limited to such matters as truly tend to interrupt the flow of com- merce or to burden commerce of more than local concern? Is the intent of Congress to be gleaned from the phrase alone, or is this to be construed in con- iection with the Organic Act of Puerto Rico 22 which the same Congress that enacted the Taft-Hartley Act amended to reflect "the policy of the United States to encourage the people in the Territories to increasingly participate in their local :governments" and "as a demonstration ... that the United States practices as well as preaches the doctrines of democracy and self-determination." 23 Ifhese questions cannot be answered by a Trial Examiner as though they were of first impression. The Board has stated administratively, in the published Statement of Policy above quoted, that it has jurisdiction over all territorial labor relations. It has stated, repeatedly and recently, in the cited cases, that its sphere of action includes all trade within Puerto Rico. And its dicta to this effect has been approved by the Court of Appeals. By these, I am constrained to hold that jurisdiction is present in the case at bar. (b) Unfair labor practices From the facts above stated, it is obvious that Respondent discriminatorily discharged his bakers because they concertedly resisted the reduction in their wages until they had an opportunity to consult among themselves and with the Union. Respondent's sudden discharge of them, without warning, immediately after they had informed him that they had joined the Union and had selected it as their collective-bargaining representative, cannot be regarded as other than ,discriminatory 2a At the hearing, Respondent stipulated that the bakers-exclusive of all other employees and all supervisors-constituted a correct and appropriate unit for purposes of collective bargaining. Further, he stipulated that in August 1948, he employed nine bakers and who the nine were. The General Counsel introduced .a petition signed, on August 19, 1948, by seven of the nine bakers, 'authorizing the Union to represent them. Neither in August 1948, nor at the hearing did the Respondent question this proof of majority designation. The Union was, there- fore, clearly the legally designated bargaining agent. In view of these facts, Respondent's refusal to permit the bakers to consult with the Union concerning the proposed reduction in pay and his discharge of them when they informed him of their desire for such a consultation constitute a clear refusal to bargain .21 21 48 USC Sec. 731 et seq. 23 Both quotations are from the House Committee Report recommending the amendment .of the Organic Act, House Report No. 455, May 26, 1947. 24 Anthony & Sons, Inc. v. N. L. R. B., 163 F. 2d 75 (C. A. D. C., 1947). 25 N. L. R. B. v. Consolidated Machine Tool Corporation, 163 F. 2d 376 (C. A. 2, 1947). PANADERIA "LA REGULADORA" 357 Nor can Respondent's later meeting with Rafael Molina be considered to have cured the error of that refusal. This follows from Respondent's entire abrogation of all agreements made during that meeting, thus restoring to its pristine force his former refusal.2G On the basis of the credible and uncontradicted evidence, it is found that Respondent discriminatorily discharged the nine bakers hereinabove named and named in the complaint; that he refused to recognize the Union as the bakers' collective-bargaining representative and to bargain with it on their behalf, although he knew it had been designated properly for that purpose ; and that, by these discharges and this refusal to bargain, he interfered with, restrained, and coerced his employees in their exercise of rights guaranteed by the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of the Respondent, set forth in Section III, above, occurring in -connection with the operations of Respondent described in Section I, above, are in trade and commerce within Puerto Rico and, to the extent that they have been found to be unfair labor practices, tend to lead to labor disputes burdening and obstructing that trade and commerce. V. THE REMEDY It having been found that the respondent has engaged in certain unfair labor practices, it will be recommended that he be ordered to cease and desist there- from and to take certain affirmative action which, It is found, will effectuate the policies of the Act. It has been found that Respondent, on or about August 20, 1948, discriminatorily discharged Felipe Gonsalez Soto, Gerardo Cruz de Jesus, Felipe Hernandez Bonilla, Jose Ramon Ocasio Collazo, Ventura Cruz Calderon, Simon Caceres Garcia, Luis Davila Carrion, Santiago Enrique Flores, and Felipe Gonsalez, Jr. It will, therefore, be recommended that the Respondent offer each of them imme- diate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights. and privileges, and that the Respondent make each of them whole for any loss of pay he may have suffered by reason of the discrimination against him, by payment to him of a sum of money equivalent to that which he would have earned as wages from the date of his discharge to the date of the offer of reinstatement, less his net earnings during said period. It has been found that the Respondent has refused to bargain collectively with Federacion Libre de Los Trabajadores de Puerto Rico, as the exclusive repre- sentative of its baker employees in the appropriate unit. It will, therefore, be recommended that the Respondent, upon request, bargain collectively with said Union as the representative of such employees, and, if an agreement is reached, embody such understanding in a signed agreement. The scope of Respondent's conduct, as above found discloses a purpose to defeat self-organization among his employees. The conduct engaged in by Re- spondent, which is specifically violative of Sections 8 (a) (1), S (a) (3), and 8 (a) (5) of the Act, reflects a determination generally to interfere with, restrain, and coerce his employees in the exercise of the right to self-Qrganization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. Because of Respondent's N. L. R. B. v. Athens Manufacturing Company, 161 F. 2d 8 (C. A. 5, 1947). 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conduct in the past and since there appears to be an underlying attitude of oppo- sition on the part of Respondent to the purposes of the Act, it is to be anticipated that the policies of the Act will be defeated in the future by like conduct unless Respondent is restrained therefrom. It, therefore, will be recommended that the Respondent be ordered to cease and desist from engaging in any like or related acts or conduct interfering with, restraining, or coercing his employees in the exercise of the rights guaranteed by Section 7 of the Act. On the basis of the foregoing findings of fact and upon the entire record in the case, I make the following : CONCLUSIONS OF LAW 1. Federacion Libre de Los Trabajadores de Puerto Rico is a labor organization within the meaning of the Act. (Section 2 (5).) 2. All persons employed as bakers at Respondent's "Panaderia La Regula- dora"-excluding all other employees and all supervisory employees-constitute a unit appropriate for the purposes of collective bargaining within the meaning of the Act. (Section 9 (b).) 3. Federacion Libre de Los Trabajadores de Puerto Rico was on August 20, 1948, and at all times thereafter, the exclusive representative of the employees in the above described appropriate unit for collective bargaining within the mean- ing of the Act. (Section 9 (a).) 4. By refusing, on August 20, 1948, and at all times thereafter, to bargain collec- tively with Federation Libre de Los Trabajadores de Puerto Rico, as the exclu- sive representative of the employees in the appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of the Act. (Section 8 (a) (5).) 5. By discriminatorily discharging, on or about August 20, 1948, and refusing thereafter to reinstate Felipe Gonzalez Soto, Gerardo Cruz de Jesus, Felipe Her- nandez Bonilla, Jose Ramon Ocasio Collazo, Ventura Cruz Calderon, Simon Caceres Garcia, Luis Davilla Carrion, Santiago Enrique Flores, and Felipe Gon- zalez, Jr., because they joined or assisted the Union, or because they engaged in concerted activities, Respondent has engaged in and is engaging in unfair labor practices within the meaning of the Act. (Section 8 (a) (3).) 6. By interfering with, restraining, and coercing his employees in the exercise of the rights guaranteed in Section 7 of the Act, in the respects hereinabove set forth, Respondent has engaged in and is engaging in unfair labor practices within the meaning of the Act. (Section 8 (a) (1).) 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of the Act. (Section 2 (6).) RECOMMENDATIONS On the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend 1. That Respondent be ordered to cease and desist from : (a) Refusing to bargain collectively with Federacion Libre de Los Trabaja- dores de Puerto Rico as the exclusive representative of all persons employed as bakers in Respondent's "Panaderia La Reguladora"-exclusive of all other em- ployees and supervisory employees-and (b) Engaging in like or related acts or conduct interfering with, restraining, or coercing his employees in the exercise of the rights to self-organization, to form labor organizations, or to join or assist Federacion Libre de Los Trabaja- dores de Puerto Rico, or any other labor organization, to bargain collectively PANADERIA "LA REGULADORA" 359 through representatives of their own choosing, and to engage in concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. That Respondent be ordered to take the following affirmative action, here- inabove found necessary and apt to effectuate the policies of the Act : (a) Immediately offer to Felipe Gonzalez Soto, Gerardo Cruz de Jesus, Felipe Hernandez Bonilla, Jose Ramon O°asio Collazo, Ventura Cruz Calderon, Simon Caceres Garcia, Luis Davila Carrion, Santiago Enrique Flores, and Felipe Gon- zalez, Jr., and to each of them, reinstatement to his former, or to a substan- tially equivalent, position, without prejudice to his seniority or other rights and privileges; (b) Make whole each of the above-named persons for any loss of pay he may have suffered by reason of Respondent's discrimination against him, by payment to him of a sum of money equal to the amount which he normally would have earned as wages from the date of his discharge to the date of Respondent's offer of reinstatement, less his net earnings during said period ; (c) Upon request, bargain collectively with the Union above named, as the ex- clusive representative of the employees in the unit above described and, if an agreement is reached, embody such understanding in a signed agreement ; (d) Post at his Panaderia "La Reguladora," in Rio Piedras, Puerto Rico, copies (in Spanish translation) of the notice attached to this Intermediate Report and marked Appendix A. Said copies shall be furnished by the Regional Director for the Fifth Region, and shall, after being signed by Respondent, be posted by Respondent and maintained by him for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by Respondent to insure that said notice are not altered, defaced, or covered by any other material ; (e) Notify the Regional Director for the Fifth Region, in writing, within twenty (20) days from the date of the receipt of this Intermediate Report, what steps the Respondent has taken to comply therewith. It is further recommended that unless on or before twenty (20) days from the receipt of this Intermediate Report, the Respondent notifies said Regional Di- rector in writing that he will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the Respondent to take the action aforesaid. As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board-Series 5, as amended August 18, 1948, any party may, within twenty (20) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file with the Board, Washington 25, D. C., an original and six copies of a statement in writing setting forth such exceptions to the Intermediate Report and Recom- mended Order or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and six copies of a brief in support thereof; and any party may, within the same period, file an original and six copies of a brief in support of the Intermediate Report and Recommended Order. Immediately upon the filing of such state- ment of exceptions and/or briefs, the party filing the same shall serve a copy thereof upon each of the other parties. Statements of exceptions and briefs shall designate by precise citation the portions of the record relied upon and shall be legibly printed or mimeographed, and if mimeographed shall be double spaced. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.85. As further provided in 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said Section 203.46 should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. In the event no Statement of Exceptions is filed as provided by the aforesaid Rules and Regulations, the findings, conclusions, recommendations, and recom- mended order herein contained shall, as provided in Section 203.48 of said Rules and Regulations, be adopted by the Board and become its' findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. Dated at Washington, D. C., this 16th day of June 1949. MERRITT A. VIcKERY, Trial Exa'mimerr APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, I hereby notify my employees that : I WILL NOT interfere with, restrain, or coerce the organization and member- ship of my employees, or any of them, in FEDERACION LIBRE DE LOS TRABAJA- noRES DE PIiERTO Rlco, or any other labor organization, or with the exercise of their right to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. All my employees are free to become or remain members of this union or any other labor organization. I WILL bargain collectively upon request with the above-named union as the exclusive representative of all employees in the bargaining unit described herein, with respect to rates of pay, hours of employment, or other condi- tions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All bakers employed at Panaderia "La Reguladora," in Rio Piedras, Puerto Rico, but excluding all other employees and all supervisors as defined in the National Labor Relations Act. I WILL offer to each of the employees named below immediate and full reinstatement, to his former, or to a substantially equivalent position, with; out prejudice to any seniority or other rights and privileges he previously enjoyed, and will make him whole for any loss of pay suffered as a result of the discrimination against him. Felipe Gonzalez Soto Simon Caceres Garcia Gerardo Cruz de Jesus Luis Davila Carrion Felipe Hernandez Bonilla Santiago Enrique Flores Jose Ramon Ocasio Collazo Felipe Gonzalez, Jr. Ventura Cruz Calderon JOSE GARCIA DONIS, d/b/a PANADERIA "LA REGULADORA", Employer. By ---------------------------------------- (Representative ) (Title) Dated-------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.