Puerto Rico Gas and Coke Co.

PUERTO RICO GAS AND COKE COMPANY 489 substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. IV. THE REMEDY Having found that the Company has engaged in and is engaging in certain unfair labor practices affecting commerce, I shall recommend that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. It has been found that the Company, by threats of shutdown and removal if the Union won the representation election , and of loss of reemployment opportunity because of support of the Union, interfered with, restrained, and coerced its em- ployees in violation of Section 8(a)(1) of the Act. I shall therefore recommend that it cease and desist therefrom any like or related conduct. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. International Union of Electrical , Radio and Machine Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. By threats of shutdown and removal and of loss of reemployment opportuni- ties, thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting com- merce, within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Puerto Rico Gas and Coke Company and Union de Trabajadores de la Industria de Gas Fluido de San Juan, FLT. Case No. 24-CA-929. August 13, 1959 DECISION AND ORDER On April 20,1959, Trial Examiner John C. Fischer issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in any unfair labor practices and recom- mending that the complaint be dismissed in its entirety as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. Respondent filed a brief in support of the Inter- mediate Report. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Bean and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed.' i Respondent alleged in Its answer , as one of its affirmative defenses to the complaint, that the Charging Union was out of compliance with Section 9(f), (g), and (h) of the Act Apparently In order to refute this contention , the Regional Director prepared an affidavit setting forth the compliance status of the Union , and counsel for the General 124 NLRB No. 67. 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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,2 Conclusions,3 and recom- mendations of the Trial Examiner. [The Board dismissed the complaint.] Counsel introduced it into evidence at the hearing . The Trial Examiner refers to this affidavit in the Intermediate Report. The respondent's contention involves administra- tive matters not cognizable in this proceeding ( Standard Cigar Company , 117 NLRB 852), and, hence , the affidavit should not have been made part of the record. We are ad- ministratively satisfied that the Union is in compliance. 2 The Intermediate Report contains a number of misstatements and inadvertencies, none of which affects the Trial Examiner's ultimate conclusions . Accordingly, we note the following more important corrections : The record reveals that the Respondent found it necessary to retrench its operations but not, as the Trial Examiner found , that the Respondent was "facing bankruptcy." According to Respondent's witnesses , whom the Trial Examiner credited , when Cruz was asked about the "fatchemco" situation , he stated that "what has happened up to now is nothing compared to what is going to happen in the future ," and not, as the Trial Examiner found , that "the damage I have done to this plant up to now is nothing com- pared to what it is going to be." There is no reference in the record to the custom , found by the Trial Examiner to exist, by which Respondent gave its . employees a bottle of rum each Christmas or, to the discontinuance of such a custom. The Trial Examiner 's characterization of the various incidents in the plant and of Cruz' alleged misconduct in the "fatchemco " situation as "sabotage" is not warranted, and hence we specifically do not adopt it. Further, his finding that Cruz ' three prior discharges were "for cause" is not adopted , since this is unnecessary to the disposition of the case and was not fully litigated in this proceeding. 3 The General Counsel has excepted to the Trial Examiner 's credibility resolutions. The Board will not overrule a Trial Examiner's credibility findings unless a clear pre- ponderance of all the relevant evidence convinces the Board that such resolution was incorrect. Standard Dry Wall Products, 91 NLRB 544, 545, enfd . 188 F. 2d 362 ( C.A. 3) ; Universal Camera Corporation v. N.L.R.B ., 340 U . S. 474, 492-497. Upon the entire record, such conclusion is not warranted here. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, brought under Section 10 (b) of the National Labor Relations Act as amended ( 61 Stat. 136), was heard at San Juan, Puerto Rico, on February 24 through 27, 1959, pursuant to due notice, with all parties represented and par= ticipating in the hearing. The complaint, which was issued on November 28, 1958, by the General Counsel of the National Labor Relations Board and which was based on charges filed and served, alleged that Respondent has since November 10, 1957, interfered with, restrained, and coerced employees, in the exercise of the rights guaranteed them in Section 7 of the Act and the Respondent Company dis- criminatorily terminated the employment of Julio Cruz Alvarez because of his active leadership and representation of the Union , all in violation of Section 8(a) (1) and (3 ) of the Act. Respondent answered on December 4, 1958, denying that it had engaged in unfair labor practices as alleged. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS The complaint alleges and the answer admits facts which establish that Respondent, a wholly owned subsidiary of the Central Public Utility Corporation of New York, is a corporation of the State of Delaware authorized to do business in the Common- wealth of Puerto Rico where it is engaged in the manufacture and sale of fluid gas at retail and wholesale to customers located in Puerto Rico. During the year 1957 its gross revenue from its sales of gas was in excess of $1,000,000. The Respondent PUERTO RICO GAS AND COKE COMPANY 491 Company is and has been at all times material herein, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE UNION AS A LABOR ORGANIZATION Union de Trabajadores de la Industria de Gas Fluido de San Juan, FLT, is a labor organization within the meaning of Section 2(5) of the Act.' III. THE UNFAIR LABOR PRACTICES A. The question This case involves the motivation of Respondent Company in terminating the employment of Julio Cruz Alvarez, the alleged discriminatee. The complaint charged that on or about November 10, 1957, that Respondent transferred Cruz from its plant department to its construction department and thereafter on November 29, 1957, terminated his status as a regular and permanent employee of the Company because of his active leadership and representation of the members of the Union employed by the Company and all because of his activity on behalf of said em- ployees in respect to wages, hours, tenure, and conditions of employment. The Respondent denied the allegation. B. Cruz' background Cruz was employed as a permanent employee about 1947 as a laborer in the construction department installing pipelines . After about a year he was put to work in the main plant, another department, as a pipefitter. This was a promotion. He next became an operator's helper. Cruz joined the Union immediately, and after working thus in the plant he became president of the Union in 1956 with the usual duties of such office. Nevertheless, Cruz was discharged three times for cause, but the Union always forced his reemployment on the Company under the contract grievance provisions. First (1948) he was discharged because, in cahoots with a physician he had attempted and perhaps defrauded the eWorkmen's Compensation Fund on a false claim of hernia. The next time (1950) he was discharged for insult- ing a company customer, and lastly (1954) he was fired for not properly performing his work and abusing his foreman. In spite of this record, he became president of the Union in 1956. C. The charge against the Company The charge out of which this case arose, signed by Cruz as president on December 5, 1957, lists 11 employees whom on November 29, 1957, "the employer in order to discourage membership in a labor organization discriminatorily discharged and has refused to reinstate"-then follows their names, including Cruz'. The San Juan Regional Office dismissed the names of all but Cruz, but proceeded on his case. The Company contended that these men were members of the construction unit which was eliminated for economic reasons. The simple controlling fact was that the Company was in a perilous financial situation, facing bankruptcy and the New York stock-owning officials dictated to General Manager Charles Regenass to dis- continue all gasline extensions, connections, and service to private dwellings and stores and operate solely as a gas producing plant, selling from its mains. Cus- tomers were required to hire private contractors for connections, extensions, instal- lations, and services required. Accordingly the construction crew was progressively reduced from 70 to 32 then to 21 men and eventually to a standby staff operating out of the plant department. Cruz was one of those displaced because of economic reorganization. D. The Company's "rotation offer" General Manager Regenass was a qualified, old line gas utility man of more than 30 years' experience in the Philippines, the Orient, and in South America. As 1 Raymond J. Compton, Regional Director for the Twenty-fourth Region, National Labor Relations Board, made an affidavit as to the compliance stages of the Union show- ing that the Union had been In full compliance with the requirement of Section 9(f), (g), and (h) of the Act at all times pertinent. The Board in Case No. 24-RC-1058 in a Decision and Direction of Election dated July 30, 1958 (unpublished), certified the Union as the bargaining representative for the Respondent's employees. The Charging Union is found to be a labor organization within the meaning of the Act. 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a salaried man for an "absent landlord," Regenass' job was to produce gas at a profit. The evidence shows that he had, however, the best interest of the individual employees at heart. He had caused a welfare loan fund to be set up to protect needy employee participants from local loan sharks at usurious interest, and he had per- sonally underwritten the major portion of the loan fund against the advice of his employers. Subsequently, however, he had to draw out his own investment in order to build his new home, started in May 1957, and to protect himself? Regenass' first step was to go to the union men and exhort them to increase their production-this, to no avail. Regenass testified that although their wages had been. raised from 50 cents per hour to $1 under the Minimum Wage Law, they did only one-third as much work as Filipinos and even men of 70 years. When the volume of work gave out late in November the permanent employees of the Union were offered an opportunity to rotate equally in shifts in accordance with the quantity of work available at the Company in keeping with the union-company contract. The men refused to rotate as provided in the contract, and the Company then took the most competent and efficient ones, who were willing, as permanent employees and carried the 11 remaining on part time. However, they were to be given work if available and were allowed all their rights and benefits as to insurance, bonuses, vacations, and sick leave as permanent employees. "Temporaries" were eliminated. Cruz refused to work under these conditions and was discharged as were the others.. E. Cruz' transfer to construction department Cruz' contention is that he was shifted from the plant department to the construc- tion department because of his union activities. The Company contends that he was shifted out of the plant because he was suspected of sabotage, was a menace and a danger to the continued successful operation of the gas plant itself if allowed on the plant premises. Manager Regenass characterized Cruz as having become thor- oughly incompetent and inefficient as an employee, as well as being disloyal and guilty of harassing management-which was already in difficulty. Cruz' transfer from the inside of the plant to outside work when he returned from his vacation late in October or early in November was occasioned by an act of sabotage, the circum- stantial evidence of which management decided clearly incriminated Cruz. Management had serious trouble with Cruz during his incumbency as union presi- dent beginning May 1957. On May 3 Regenass got a letter from President Cruz stating that "we needed additional men because all the pipe ducts of the gas produc- tion was going over to certain drips." (This was the result of tar or other matter clogging the pipes.) Regenass testified: "I told him [Cruz] that where I come from before, we had less than five men attending, this same type of plant, and we didn't need any additional men. Things started to happen. One morning I was called at my house from hotel managers that the whole city had no gas. Service was com- pletely stopped. Well I jumped into my pants and run down to the plant as fast as possible, I soon found the pipe drip was full of water. There had been strict orders to pump the drip on every shift coming in. The first job they do is to pump the drip. There are about eight men that are supposed to pump that drip in different shifts. They work on three shifts a day, working only five days. It means additional men. Well, I started an investigation why the drip was not pumped. . Mr. Cruz told me, `We have no time to pump that drip.' I said, `you know always you have to do that before you start any other job.' He said, `We have no time.' He repeated that statement later on again in front of Mr. Pedro Rivera, inspector from the Department of Labor. After May 3rd, we started to notice trouble. The plant didn't work. It got so bad that one day our tanks were practically empty." The end result was that Regenass and the plant superintendent discovered that the bypass valve was open, allowing all of the residual tar to go over the drip and clog the lines. This trouble period cost the Company "thousands and thousands of dollars." Regenass believed Cruz directly responsible, but was unable to prove it, although Cruz told him that he knew who did it. O As a witness the Trial Examiner found Regenass to be a forthright, objective, and honest witness, and in sharp contrast with Cruz whose demeanor on the witness stand documented well his repeated discharges. In all credibility conflicts in their versions of events, the Trial Examiner credited Regenass' testimony over Cruz'-and they were the principal witnesses in the case. Respondent's witnesses Morales, Esquilin, Jiminez, and Patt substantiated Regenass. PUERTO RICO GAS AND COKE COMPANY 493 F. The "fatchemco" situation Tar is used in this plant as a boiler fuel. The boilers were built for the use of tar. To distill the tar a chemical additive named "fatchemco" was used to make a com- bustible emulsion. At a later date an inspector from the safety division of the Labor Department called on Regenass. Regenass quoted him: "Mr. Regenass, we have a complaint from the president of the union that the union is demanding that we prohibit you the use of tar in your boilers: that the tar was bad." The inspector talked to the boiler fireman on duty, a union member, who said: "The tar is very bad lately, but we never complain to anybody about bad tar." However, at inventory time the storekeeper reported to Plant Superintendent Morales that there was not a drop of "fatchemco" used during the whole past month. The same eight men involved in not pumping the drip: "Each one [said] yes, I put in every time." Regenass testified: "So, there again, is a very funny coincidence that Cruz knew the tar was bad and went to the Labor Department but he also told me, `Prove that I did it.' I said, `Well, I can't prove that.'" Cruz then went on his vacation and when he returned he told Superintendent Morales and the plant foreman: "The damage I have done to this plant up to now is nothing compared to what it is going to be." Regenass' reaction was restrained. He said: "We cannot have the man inside the plant anymore because he is a danger. We are a public utility. We do give service,as an obligation, so absolutely prohibit him to enter the plant." I said, "Transfer him to construction. Even so he don't work at all, don't let him get inside the plant any more." Asked why he did not fire Cruz out of hand, Regenass stated: "I have fired him three times before and he always comes back like a bad penny." The Union and the Labor Department, according to Respondent always forced the Company to take him back. G. Cruz' explanation rejected Cruz testified that Plant Superintendent Morales accused him of ordering the men to dump the "fatchemco" in the ditch. Cruz' rejected testimony in this con- nection was: "That it was not true. I could not do that. I worked for the Company and wanted it to prosper because from there I obtained my living for my family; and as president of the union, I didn't dare do such a big thing." Cruz also denied that he had reported the tar situation to the Labor Department, but he admitted reporting a rotten stair, and oil slippery holes and an exposed dangerous steampipe, as well as the danger of the boiler exploding. The Trial Examiner carefully observed Cruz and concluded in view of the accepted testimony of Respondent's witnesses that he was unworthy of belief. Accordingly his versions of events are rejected. Although, General Counsel presented several witnesses who testified, cumulatively consisting of Luis Rivera and Herminio Santiago, Satero Santana, Eleuteria Colon, Valentin Figueroa Gonzales, and Domencio Figueroa supporting Cruz' assertion that Regenass told the group: "Get rid of this man as president and all the troubles will be over. I will give back your jobs and I will give you back your Christmas bonus, [and] your loans" is pure fabrication. The loan fund was exhausted, the custom of giving employees a Christmas bottle of rum was discontinued in view of the sabotage, and finally there was no work except temporary available. In Conclusion It is concluded that General Counsel has not sustained the burden of proving by a preponderance of the evidence the allegations of his complaint. Accordingly it will be recommended to the Board that the complaint be dismissed in its entirety. Upon the above findings of fact and upon the entire record in the case I make the following: CONCLUSIONS OF LAW (1) The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. (2) The Union is a labor organization within the meaning of Section 2(5) of the Act. (3) The Respondent has not violated Section 8(a)(3) of the Act as alleged in the complaint. (4) The Respondent has not engaged in conduct violative of Section 8(a)(1) of the Act as alleged in the complaint. [Recommendations omitted from publication.]