Crown Cork De Puerto Rico, Inc.

CROWN ('ORK DE Pt RI() RICO. IN('. Crown Cork de Puerto Rico, Inc. and Union Indepen- diente de Trabajadores de la Crown Cork and S. . U. de Puerto Rico, Caribe Y Latinoamerica a/s S. . U. of North America, AFL-CIO, Party to the Contract S. . U. de Puerto Rico, Caribe Y Latinomnerica, a/s S. I. IU. of North America, AFI.-CIO and Union Independiente de Trabajadores de la Crown Cork Crown Cork de Puerto Rico, Inc. and Ulnion Indepen- diente de Trabajadores de la Crown Cork, Peti- tioner. Cases 24-CA-3787. 24 CA 3820. 24 ('B 980, and 24 RC-5775 July 19. 1979 DECISION AND ORDER REMANDING PROCEEDING TO ADMINISTRATIVE LAW JUDGE BY CHAIRMAN FANNING ANI) MlIMB1 RS JNKINS AND PNIIttI() On February 7, 1979, Administrative law Judge Irwin H. Socoloff issued his Decision in this proceed- ing.' Thereafter, Respondent Employer and Respon- dent Union filed exceptions and supporting brief. and the Charging Party Union filed further excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the Deci- sion in light of the exceptions and briefs and has de- cided to remand this case to the Administrative Law Judge for further credibility determinations and the issuance of a Supplemental Decision. In his Decision, the Administrative Law Judge found that Respondent Employer (hereinafter called Respondent) was responsible for various acts in viola- tion of Section 8(a)(3), (2), and (I) of the Act. and that Respondent Union had violated Section 8(b)(2) and (I)(A) of the Act. Included among these viola- tions was the finding that the discharge of Heriberto Padua on September 24, 1976.2 was based soley on union considerations and therefore violative of' Sec- tion 8(a)(3). The legality of this discharge is related to several other issues litigated before the Administra- tive Law Judge, including the status of' the strike that commenced on the afternoon of September 24 which S . U. de Puerto Rico. Carile I.llnoamerlc.a a S I 1ot North Amenca AFI. (10. as the Intervenor n the representatllon proCeeding. Case 24 R( 5775 2 All dates are 1976 unless therwlse inLdicalted was ifund b the Administrative l.av Judge to have been an unfair labor practice strike froin its inception, the strikers' entitlement to recall upon application which was i'ound bh the Administratie La.v Judge to be applicable to those strikers when the president ofl the Charging Part 3 Union requested reinstatement on their behalt' on October 22. and the eligibility oft the striker replacements to vote in the election ccnducted on October 29 whose entitlement the Adininistrativ e law Judge found to be without support based on the prior events outlined above. While these findings with respect to events which succeeded Padua's discharge do not necessarily derive their sole support from the status of Padua's discharge as other unfair labor prac- tices were tound to have occurred before that date. the series of events nevertheless establishes that the legality of Padua's termination is an important ele- ment in the General Counsel's arguments with re- spect to these other events. I'he record, however, reveals substantial conflicts in the testimony with respect to what occurred during the events which led to Padua's discharge, and also re~xeals that the Administrative LaU Judge fitiled to make credibilit\ resolutions to resole these conflicts. The evidence presented hb Padua's supervisor. Jose David Carrasquillo. indicates that Padua responded to one of his instructions with obscene language and that he threatened to tear the super, isor's head off if a report was tiled. Carrasquillo urther testilied that he wrote a report concerning this incident and submitted the report to Plant Superintendent Francisco Gonza- les. The General Counsel. on the other hand. called three witnesses to the exchange between Carrasquillo and Padua.' kwhose testimon does not indicate that Padua threatened ('arrasquillo or was otherwise dis- respect lu l. T'he record shows that Respondent utilized this written report submitted by Carrasquillo as the basis for Respondent's conclusion that Padua had been in- subordinate. had shown a lack of respect and had threatened physical harlm to a supervisor.4 and that his actions warranted his immediate termination. However, the Administrative LaA. Judge. bh not making credibilit findings with respect to the event relerred to in the written report, has precluded a inld- ing w ith respect to the merits of (Carrasquillo's accu- sations against Padua. The Administrative l.aw Judge. instead, based his findings on the manner with ,ahich Respondent reacted to ('arrasquillo's report. 'I he,e three it ne-scx ertrc Pdua. Miguel ( arra,quill. ain I us Polar 4 tiourth tlexx t, thls c'eni. ( ilhcrIo or Robcr. Roidrique,. did nt res- It '(iorl ilcs lelllied Ihat he pp.ke u slh Rcsdriquc .hl uIl the eich.ange he- t, ee (rrasquillo n P'.i .ua, ht thai R..irlquiei did not stite .san il ore than. Ih.i he he0rd in .IruliIIti hci.eie i lhrn hii dd ni h1c.lr vhaI -u' sp}kci 243 NLRB No. 112 c69 DECISIONS OF NATIONAL ILABOR RELATIONS BOARD) Whether Padua misconducted himself as Carra- squillo asserted is necessarily material to any evalu- ation and review of the reason Respondent dis- charged Padua. We therefore remand the record to the Administrative Law Judge for credibility findings with respect to the Padua-Carrasquillo incident on September 23. Should it be found that Padua engaged in the misconduct attributed to him by Carrasquillo, then further consideration must be given to the issue of whether Respondent's treatment of Padua as a re- sult of this misconduct was discriminatory in the light of past practice. On the other hand, should it be found that Padua did not engage in the misconduct as stated in the report prepared by Carrasquillo and re- lied on by Respondent, consideration must be given to whether the preparation of the report was moti- vated by unlawful factors, as well as the allegation of disparate treatment with respect to the handling of this disciplinary action taken against Padua. In view of the importance of the conclusions with respect to Padua's discharge as it relates to several other issues litigated in this proceeding and outlined above, we shall refrain from ruling on the merits of the exceptions taken by the various parties to the re- maining findings and conclusions of the Administra- tive Law Judge, pending the preparation of the Sup- plemental Decision ordered herein. ORDER It is hereby ordered that this case be remanded to the Administrative Law Judge tor the purpose of making credibility determinations regarding the testi- mony of the witness referred to herein. Il IS FURIilIR ()RI)FRFI) that the Administrative Law Judge shall prepare and serve on the parties a Supplemental Decision containing credibility deter- minations, findings of fact. conclusions of law, and recommendations to the Board, and that following service of such Supplemental Decision on the parties, the provisions of Section 102.45 of the Board's Rules and Regulations, Series 8, as amended, shall be appli- cable. 570