Miramar Charterhouse

728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hotel Corporation of Puerto Rico, Inc. d/b/a Miramar Charter- house and Union de Trabajadores de la Industria Gastronomica ,de Puerto Rico, Local 610, Hotel & Restaurant Employees and Bartenders International Union, AFL-CIO Union de Trabajadores de la Industria Gastronomica de Puerto Rico, Independiente and Union de Trabajadores de la Industria Gastronomica de Puerto Rico, Local 610, Hotel & Restaurant Employees and Bartenders International Union, AFL-CIO. Cases Nos. 24-CA-1606 and 2.4-CB-434. September 20, 1963 DECISION AND ORDER On December 6, 1962, Trial Examiner Thomas A. Ricci issued his Intermediate report in the above-entitled proceeding, finding that the Respondents had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Intermediate Report. There- after, the General Counsel and the Charging Party 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 this case, and hereby adopts only those findings, conclusions, and recommendations of the Trial Examiner which are consistent with this Decision and Order. As more fully set forth in the Intermediate Report, the relevant facts, briefly summarized, establish the following : Union de Traba- jadores de la Industria Gastronomica de Puerto Rico, Local 610, Hotel & Restaurant Employees and Bartenders International Union, AFL-CIO, herein called Local 610, was certified on August 2, 1961, as the bargaining representative of Respondent Employer's employees and executed a collective-bargaining agreement covering such em- ployees on January 12, 1962, effective until January 9, 1964. A grievance involving the discharge of four bar employees arose in February 1962, and was being processed under the grievance ma- chinery of the contract. A date for arbitration had been scheduled when the events detailed in the Intermediate Report occurred, creating a split between contending forces in the contracting Union and result- ing in disaffiliation action by one faction and the formation of the Respondent Union. On March 29, 1962, the Respondent Union, through its official who had been business agent of Local 610, de- manded that the Employer recognize it as the bargaining representa- tive of the employees. The next morning, when the scheduled arbi- 144 NLRB No. 70. MIRAMAR CHARTERHOUSE 729 tration meeting opened, the same three representatives who had previously acted as the grievance committee on behalf of Local 610, including the aforesaid business agent, appeared in that capacity for Respondent Union prepared to process the grievance. The Employer, having general, though unofficial, knowledge of the intraunion dis- affiliation events, challenged the right of these representatives to act on behalf of the contracting union and submitted to the presiding Puerto Rican Labor Department arbitrator the question of which of the contending factions was the certified and contracting union entitled to participate in the proceedings. The arbitrator took this issue under advisement and adjourned the meeting. Accordingly, the merits of the grievance were never presented. At 1 that afternoon Respondent Union sent a telegram to the Employer demanding reinstatement of the four discharged employees and recognition as bargaining representative, allowing the Employer until 6 p.m. to comply with both demands. When the deadline passed without action by the Employer, all the service and maintenance employees on duty walked out, joined the four dischargees across the street from the main entrance to the hotel, and formed a picket line with signs 1 which read "Reinstate the employees or we stay out." The picketing employees were joined shortly thereafter by the repre- sentatives of the Respondent Union. About 6:20 p.m. the Employer's attorney appeared on the steps of the hotel and invited Respondent Union's attorney to come over and confer. A letter offering imme- diate reinstatement with backpay and tips but declining recognition as a matter for Board determination and committing the Employer to seek that determination, was accepted and the strike terminated at 7:10 p.m. The consolidated complaint alleges, inter alia, that since on or about March 30, 1962, Respondent Employer has violated Section 8(a) (5) and (1) of the Act by bypassing the incumbent Local 610 in the processing and adjusting of grievances in derogation of the statutory representative's rights under the existing contract and cer- tification, and by implementing a policy of withholding exclusive recognition from Local 610, contrary to its commitment under the collective-bargaining agreement and in violation of its statutory ob- ligation arising from the Board certification; and that Respondent Employer has rendered unlawful aid, assistance, and support to Respondent Union in violation of Section 8(a) (2) and (1) by recog- nizing and dealing with Respondent Union concerning individual employee grievances and by entering into a strike settlement agree- ment with Respondent Union whereby it consented to withhold gen- eral bargaining recognition from Local 610 until the Board had 1 These signs had previously been prepared by the dischargees and did not bear the name of any union. 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD redetermined the employee representative. The complaint further al- leges that the Respondent Union restrained and coerced employees in violation of Section 8(b) (1) (A) of the Act by its strike activities to compel the aforesaid conduct on the part of Respondent Employer, and by processing and adjusting individual employee grievances and entering into the strike- settlement agreement. The Respondent Union claims that it is the real beneficiary of the Board certification and the existing collective-bargaining agreement. The Respondent Employer contends that it did not, and could not, know which of the two factions, emerging from the disaffiliation, was entitled to representation rights. In any event, it asserts that it did not recognize or bargain with Respondent Union, and that the other faction, Local 610 under Trustee Ramos, had not contacted it after the intraunion upheaval. 1. With respect to the 8(a) (5) allegations, the Trial Examiner saw a causal connection between the actions of the Respondent Union on March 30, 1962, and the Respondent Employer's reinstatement of the four dischargees and found that the Respondent Employer, within the certification year, recognized and bargained with Respondent Union, at least as representative of the four dischargees, thereby ac- cording the Respondent Union the status belonging exclusively to the contracting and certified representative. However, because he viewed the totality of the pseudo-schismatic situation as creating "unusual cir- cumstances" within the intent of the Supreme Court's Ray Brooks decision,2 he considered relevant Respondent Employer's motive in dealing with Respondent Union and concluded that its conduct here was not undertaken in bad faith. Accordingly, he found no violation of Section 8(a) (5) of the Act. We do not agree with the conclusion that the circumstances war- ranted an exception to the general rule requiring exclusive 3 recogni- tion of a statutory representative unchallenged at least for the duration of the certification year.' For the reasons set forth in our decision in Dorado Beach Hotel,5 we find that the intraunion conflict did not con- 2 Ray Brooks v. N.L.R B , 348 U.S. 96. The "unusual circumstances " noted and ac- cepted by the Supreme Court therein as warranting exceptions to the presumptive con- tinuity of the statutory representative status were those where the certified union dis- solved, became defunct, or experienced a schism, or where the bargaining unit changed radically. 8 See Medo Photo Supply Corp. v. N.L.R B., 321 US 678, 683-684, wherein the Court stated : The National Labor Relations Act makes it the duty of the employer to bargain collectively with the chosen representative of his employees The obligation being exclusive . . . it exacts the negative duty to deal with no other. 4 Ray Brooks v. N.L.R B., supra 5 Dorado Beach Hotel, 144 NLRB 712 The decision therein is being issued simul- taneously herewith That case was heard by the Trial Examiner herein and the record of that proceeding was incorporated into this record as part of this proceeding In addi- tion , pertinent parts of the report in that case are repeated in the Intermediate Report herein. MIRAMAR CHARTERHOUSE 731 stitute a schism under the Board rules, nor did the certified Local 610 become defunct or cease to exist as a labor organization. Moreover, the record does not establish that the Respondent Union was the same labor organization as that which was chosen by the employees and certified by the Board, it successor or alter ego.6 Rather it was that dissident group which had defected from the certified union and had thereafter constituted itself a separate labor organization. In these circumstances, we find no basis for holding that the certified bargain- ing representative's majority status was subject to challenge or that Respondent Employer was relieved of the statutory obligation to rec- ognize it to the exclusion of all others? As the Respondent Employer did proceed to adjust grievances presented to it without consultation with the statutory bargaining representative, or giving such repre- sentative an opportunity to be present, it consequently withheld ex- clusive recognition from that representative.' Although we have held that there was no schism, we recognize that the situation gave rise to considerable confusion and that the Respondent Employer was not acting in bad faith. However, in the circumstances here, the objection element of good or bad faith is immaterial I and we find that Respon- e Although it is not clear that the Trial Examiner relied on this paint for his finding herein, the Intermediate Report contains the statement that the Respondent Union was "the same labor organization which was born In 1928, and which affiliated in 1957 with the AFL-CIO, continued its individual and distinctive existence from March 13, on under the name of the Independiente." This, in effect, is the defense advanced by Respondent Union herein and if legally supportable would eliminate the basis for the entire complaint. East Ohio Gas Company, 140 NLRB 1269; Waterway Terminals Coi poration, 120 NLRB 1788; Cochran Co, Inc, 112 NLRB 1400 , 1408-1409 ; N.L R B. v. Harris -Woodson Com- pany, Inc, 179 F. 2d 720 ( C.A. 4), enfg. 77 NLRB 819 , as amended 85 NLRB 1215 How- ever, contrary to the Trial Examiner, the record here establishes that as a result of in- ternal conflict two labor organizations emerged C This statutory obligation includes responsibility for any bypassing of the collective- bargaining representative on matters which are propeily a subject for bargaining. See N L R B. v. Benne Katz, d/b/a Williamsburg Steel Products Co, 369 U S. 736 'Even the individual employee sight personally to present his own grievance to his employer and to have such grievance adjusted without the intervention of any bargaining representative is limited by Section 9 ( a) to the condition that the adjustment may not be inconsistent with the terms of any collective -bargaining contract then in effect, and is further circumscribed by the proviso that the bargaining representative be given an oppor- tunity to be present. Here the certified and contracting bargaining representative was neither notified nor given an opportunity to be present, nor was the settlement consistent with the terms of the existing contract inasmuch as it withheld exclusive recognition from the contracting union See The Ingalls Shipbuilding Corporation, 143 NLRB 712 Con- sequently , it is immaterial to the violation whether a stranger union or the employees themselves processed the grievance . Cf. N L.R.B. v. Cabot Carbon Company, 360 U.S. 203, 218. e As stated by the Supreme Court in N.L R.B. v. Beene Katz, footnote 7, supra, the duty to bargain collectively imposed by Section 8 ( a) (5) "may be violated without a general failure of subjective good faith . . . .. And in International Ladies Garment workers v. N.L R B and Bernhard Altmann Texas Corp , 366 U.S. 731 , "To countenance such an excuse [of good faith ] would place in permissibly careless employer and union hands the power to completely frustrate employee realization of the premise of the Act . . . .. Board precedent makes it clear that if an employer withdraws or withholds recognition from a statutory bargaining representative at an inappropriate time, or if it fails to permit ad- ministration of a current contract even while a question concerning representation is pending, it violates the statute. See Hexton Furniture Company, 111 NLRB 342, 344; Marcus Trucking Company, 126 NLRB 1080 , 1101-1102, enfd. 286' F . 2d 583 ( C.A. 2) ; 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dent Employer committed a technical violation of Section 8(a) (5) of the Act.10 2. Although we have rejected his basic premise concerning the status of Local 610 under Trustee Ramos,il we agree with the Trial Examiner that Respondent Employer did not in fact concede exclusive bargain- ing rights to Respondent Union in the course of the strike negotiations and settlement and that Respondent Employer did not by the strike settlement render assistance and support to Respondent Union in violation of Section 8(a) (2) of the Act.12 As indicated by the Trial Examiner, the meeting concerned itself with a discussion of the grievances of the four dischargees in whose support the strikers had walked out, and even if the discussions were treated as affecting the work status of all strikers, this would still fall short of majority recognition. Although Respondent Union's demand for recognition as bargaining representative accompanied its demands on behalf of the dischargees, Respondent Employer refused such recognition at the outset and at no time discussed or altered its position on this point.13 A demand for reinstatement of dischargees is not, in itself, a demand for recognition,14 nor is settlement of such a demand the equivalent of Duralite Co, Inc, 132 NLRB 425, 427, Gerald Sklar and Alfred Goldman, Co-Partners d/b/a Michigan Advertising Distributing Company, 134 NLRB 1289, 1295, reversed on other grounds 316 F. 2d 145 (CA 6) ; Gulfcoast Transit Company, 135 NLRB 185 ; Tr-W Construction Company, 139 NLRB 1286: Commerce Company d/b/a Lamar Hotel, 140 NLRB 226. However, an employer's motive may be regarded as pertinent to the scope of the remedy required See Pepsi-Cola Louisville Bottlers, 139 NLRB 463; Rocky Mountain Phosphates, Inc, 138 NLRB 292. 10 Member Fanning would dismiss the 8(a) (5) allegation. The majority bases its find- ing of a violation on the ground that the Employer proceeded "to adjust grievances pre- sented to it without consultation with the statutory bargaining representative, or giving such representative an opportunity to be present. . . ' The record shows, however, that these grievances, which consisted of the discharge of four employees, were the subject of the Independent's strike and were adjusted by the Employer through the Independent The very same conduct is found by the majority not to constitute an 8(a) (2) violation Mr. Fanning agrees that this conduct of the Respondent Company was not illegal assist- ance to the Independent. However, in view of the fact that in this admittedly confused situation the Respondent expressly refused to deal further with the Independent until the Board should decide the identity of the bargaining representative, he would also find that this conduct was not a refusal to bargain with the certified bargaining representative n In holding that there was no violation of Section 8(a) (2), the Trial Examiner, con- sistent with his conclusions with respect to the 8 ( a) (5) allegations , started from the premise that the certified Local 610 ceased to exist and that Local 610 under Trustee Ramos was not in fact the majority representative to whom the Respondent Employer had a statutory obligation to accord exclusive representative status. In view of our disposi- tion of the issues herein we do not reach , nor do we pass upon, the findings of the Trial Examiner relating to the applicability of the rule of Midwest Piping and Supply Co , Inc., 03 NLRB 1060. 11 See Burrell Metal Products Corp , 134 NLRB 921, 922. 13 It is axiomatic that an agreement to seek an election is in essence a lesser concession than granting recognition. Indeed the former is the antithesis of the latter This differ- ence must not become so clouded as to treat them as the same or to infer an 8(a) (2) vio- lation whenever the former type of concession is the basis for an 8 (a) (5) finding. The violations differ and each must rest upon its own support even though in given circum- stances both may be based upon the same conduct. A similar distinction has been made between a strike to attain a consent election and one for recognition , when the latter would have been illegal . New Orleans Roosevelt Corporation, 132 NLRB 248 , 257-258 14 See Local 259, International Union, United Automobile, Aircraft and Agricultural Implement Workers ( Fanelli Ford Sales, Inc ), 133 NLRB 1468; Waitress B Bartenders Local 500 et al (Mission Valley Inn), 140 NLRB 433. MIRAMAR CHARTERHOUSE 733 extending exclusive recognition. Furthermore, the rendering of as- sistance in violation of Section 8(a) (2) rests, not upon what has been requested from, but what has been extended by, the employer. In our view, the reinstatement and strike settlement involved here was not the type of dealing which constitutes illegal assistance,15 for Respondent Employer did not thereby place the Respondent Union in a preferred position visa vis the incumbent Local 610, or place the incumbent union at a disadvantage. And this is so even though, as found herein, such conduct technically may, in the absence of appropriate notice and opportunity to be present, constitute an undermining of the statutory representative in violation of Section 8(a) (5). Accordingly, we find that the Respondent Employer did not violate Section 8(a) (2) as alleged, and adopt the Trial Examiner's dismissal of the complaint in this respect.16 3. We agree with the Trial Examiner that the Respondent Union did not violate Section 8(b) (1) (A) of the Act. However, we so find for the following reasons rather than those set forth in the Inter- mediate Report. Having rejected the Trial Examiner's findings that Local 610 had ceased to exist and the Independent was entitled to recognition as its successor, the question is presented whether, as the General Counsel contended, the Respondent Union interfered with the employees' Section 7 rights by striking to secure recognition and/or the strike set- tlement agreement. Such a holding would, however, be in direct con- flict with the Supreme Court's decision in Curtis Brothers 14 that peace- ful picketing for recognition by a minority union is not, in and of itself, volitive of Section 8(b) (1) (A). It is not contended that the picketing here was other than peaceful. The Supreme Court has found such an interference with Section 7 rights by a minority union's acceptance of exclusive recognition."' But no such recognition was offered or accepted in the instant case, and the strike settlement in no 15Cf. International Ladies' Gai ment Workers' Union, AFL-CIO v. N.L R B and Bernhard-Altmann Texas Corp., 366 U. S 731, and cases cited in footnote '8, supra As stated by the Supreme Court in Bernhard-Altmann: "A grant of exclusive recognition to a minority union constitutes unlawful support in violation of [Section 8(a)(2)], because the union so favored is given `a marked advantage over any other in securing the ad- herence of employees.' " [Emphasis supplied ] 11 Member Leedom would find that the Respondent Employer violated Section 8 ( a) (2) of the Act In his opinion , and for the reasons stated in Lewis Food Company, 115 NLRB 890, and the dissenting opinion in Fanelli Ford Sales, Inc , supra, the Respondent Em- ployer's conduct in dealing with the Respondent Union concerning the strike settlement and the reinstatement of the discharged employees was necessarily tantamount to recogni- tion of and bargaining with the Respondent Union. As such recognition and bargaining was in derogation of the status of Local 610 as the exclusive bargaining representative of the Respondent Employer's employees, it necessarily amounted to assistance and support of the Respondent Union, and under well-established principles was a violat i on of Sec- tion 8 ( a)(2). 17 N.I. R .B v. Drivers, Chauf eurs, etc., Local 639 ( Curtis Brothers ), 362 U.S. 274. We do not here determine whether the conduct involved may have violated other appro- priate sections of the Act , for no such violations have been alleged. 18 See Bernhard-Altmann, footnote 15, supra. 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD way interfered with employee rights. Accordingly, we find no basis for sustaining the General Counsel's contention and hereby adopt the Trial Examiner's recommendation that this allegation of the com- plaint be dismissed. THE REMEDY Having found that Respondent Employer has technically violated Section 8(a) (5) and (1) of the Act by failing to accord exclusive recognition to the statutory bargaining representative of its employees in the appropriate unit, we shall order that it cease and desist there- from and take certain affirmative action which we determine is neces- sary to effectuate the policies of the Act. Because of the absence of a showing of bad faith and of any indication that other unfair labor practices may be anticipated from past conduct, we shall not order that Respondent cease and desist from commission of any other unfair labor practices.19 Upon the basis of the foregoing findings and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. The Employer is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. The Unions involved are labor organizations within the meaning 3f Section 2 (5) of the Act. 3. The following employees of Respondent Employer constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act : All service and maintenance employees employed at Respondent Employer's hotel located at Stop 10, Santurce, Puerto Rico, exclusive of administrative and office clerical employees, watchmen, and all supervisors as defined in the Act. 4. At all times since August 2,1961, Local 610 has been the exclusive and certified representative of all employees in the appropriate unit for purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By failing to accord exclusive recognition to the statutory bar- gaining representative of the aforesaid employees, Respondent Em- ployer has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 6. By said acts Respondent Employer has interfered with, re- strained, and coerced its employees in the exercise of the rights guar- anteed in Section 7 of the Act, thereby engaging in unfair labor prac- tices within the meaning of Section 8 (a) (1) of the Act. 19 See Pepsi Cola Louisville Bottlers, etc., 139 NLRB 463 (I.R.). MIRAMAR CHARTERHOUSE 735 7. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2 ( 6) and (7) of the Act. ORDER Upon the foregoing findings and, conclusions and pursuant to Sec- tion 10 (c) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board hereby orders that the Respondent, Hotel Corporation of Puerto Rico, Inc. d/b/a Miramar Charterhouse, Santurce, Puerto Rico, its officers, agents, successors, and assigns, shall : 1. Cease and desist from failing to accord to Union de Trabaj adores do la Industria Gastronomica de Puerto Rico, Local 610, Hotel & Restaurant Employees and Bartenders International Union, AFL- CIO, exclusive recognition as collective-bargaining representative of its employees in the appropriate unit, in the manner found above. 2. Take the following affirmative action which is necessary to effec- tuate the policies of the Act : (a) Recognize and, upon request, bargain collectively with Union de Trabajadores de la Industria Gastronomica de Puerto Rico, Local 610, Hotel & Restaurant Employees and Bartenders International Union, AFL-CIO, as the exclusive bargaining agent in the appropri- ate unit with respect to rates of pay, wages, hours of employment, or other conditions of employment. (b) Post at its hotel in Puerto Rico, and at all places where notices to employees are customarily posted, copies of the attached notice marked "Appendix." 20 Copies of said notice, to be furnished by the Regional Director for the Twenty-fourth Region, shall, after being signed by the Respondent Employer's representatives, be posted by said Respondent and maintained by it for 60 consecutive days there- after, in conspicuous places, including all places where notices to employees are customarily posted at the Miramar Charterhouse Hotel in Puerto Rico. Reasonable steps shall be taken by the Respondent Employer to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Twenty-fourth Region, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. MEMBER JENKINS took no part in the consideration of the above Decision and Order. 20In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "A Decision and Order" the words "A Decree of the United States Court of Appeals, Enforcing an Order " 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX 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: WE WILL NOT engage in any acts depriving Union de Traba- jadores de la Industria Gastronomica de Puerto Rico, Local 610, Hotel & Restaurant Employees and Bartenders International Union, AFL-CIO, of the right to act as the certified and exclusive representative of employees in the bargaining unit described below. WE WILL recognize and, upon request, bargain collectively with Union de Trabajadores de la Industria Gastronomica de Puerto Rico, Local 610, Hotel & Restaurant Employees and Bartenders International Union, AFL-CIO, as the exclusive representative of all the employees in the bargaining unit, with respect to rates of pay, wages, hours of employment, or other conditions of em- ployment. The bargaining unit is : All service and maintenance employees employed at Re- spondent Employer's hotel located at Stop 10, Santurce, Puerto Rico, exclusive of administrative and office clerical employees, watchmen, and all supervisors as defined in the Act. HOTEL CORPORATION OF PUERTO Rico, INC. D/B/A MIRAMAR CIIARTERI-IOUSE, Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, P.O. Box 11007, Fernandez Juncos Station, Santurce, Puerto Rico, 00910, Telephone No. 724-7171, if they have any question con- cerning this notice or compliance with its provisions. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE A hearing in this proceeding was held on October 10, 23, and 25, 1962, before Trial Examiner Thomas A. Ricci in Santurce, Puerto Rico. The Government's case rests upon a consolidated complaint; against Hotel Corporation of Puerto Rico, Inc., d/b/a Miramar Charterhouse, herein called the Company or the Company Respond- ent, it alleges violations of Section 8(a)(1), (2), and (5) of the Act; against Union de Trabajadores de la Industria Gastronomica de Puerto Rico, herein called ,the Independiente or the Respondent Union, the complaint alleges violations of MIRAMAR CHARTERHOUSE 737 Section 8 (b)(1) (A). All parties, including the Respondents , the General Counsel, and Union de Trabajadores de la Industria Gastronomica de Puerto Rico, Local 610, Hotel & Restaurant Employees and Bartenders International Union, AFL-CIO, the Charging Party, herein called Local 610, appeared at the hearing and were afforded full opportunity to be heard , to examine and cross-examine witnesses, and to intro- duce evidence bearing on the issues. As part of their defense to the complaint, both Respondents offered into evidence the entire transcript of testimony and all the exhibits received in evidence at a hearing on objections to election held from October 2 to 12, 1962, in Dorado Beach Hotel, Case No. 24-RC-1726 [144 NLRB 712]. Pursuant to Board Order, and by designation of the Chief Trial Examiner, I acted as Hearing Officer in the Dorado Beach Hotel hearing. The General Counsel stipulated with the Respondents that the transcript and exhibits of that case be considered as evidence , testimonial and documentary , received in this proceeding.' Upon the entire record, and from my observation of the witnesses in this case and in the Dorado Beach Hotel case, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY RESPONDENT Hotel Corporation of Puerto Rico, Inc., is a corporation organized under the laws of the Commonwealth of Puerto Rico, and is engaged in the operation of a hotel called the Miramar Charterhouse in Santurce , Puerto Rico. The Miramar Charterhouse is not a permanent or residential type of hotel ; more than 25 percent of its guests remain less than 1 month . During the past year the Company received a gross income exceeding $500,000 from operations of this hotel and purchased materials and other equipment necessary for the operation of the hotel valued in excess of $50,000, all of which originated from places located outside Puerto Rico. I find that the Respondent Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to exercise jurisdiction in this proceeding. II. THE ALLEGED UNFAIR LABOR PRACTICES A. A picture of this case The Miramar Charterhouse is a new hotel and started operations on January 19, 1961. Very shortly thereafter Teamsters , Chauffeurs, Warehousemen and Helpers, Local 901, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America , herein called the Teamsters , or Teamsters Local 901, filed a petition with the National Labor Relations Board in Puerto Rico (Case No. 24-RC- 1586) seeking to achieve exclusive representative status among the hotel's overall group of service and maintenance employees . Union de Trabajadores de la Industria Gastronomica de Puerto Rico , Local 610, affiliated with Hotel & Restaurant Employees and Bartenders International Union, AFL-CIO, as then constituted, intervened in the representation proceeding. Pursuant to that petition an election was held on February 23, 1961, in which 48 votes were cast for Teamsters Local 901, 120 for Local 610, and 11 for no union. On the basis of objections filed, the results of that election were set aside . As second election was held on June 8, 1961, when 63 votes were cast for Teamsters Local 901 , 70 for Local 610, and 13 for no union. These results necessitated a runoff election between Teamsters and Local 610, which was held on July 20. In this election 55 employees voted for the Teamsters and 83 for Local 610, AFL-CIO; there were 3 void ballots and 2 challenges. The Teamsters filed objections to this election which, on investigation , the Regional Director over- ruled. On August 2, 1961 , on the basis of the last balloting , the Regional Director issued a certification of representatives in favor of Local 610, AFL-CIO. The Company bargained with the certified union and on January 12, 1961, signed a comprehensive collective-bargaining agreement by its terms effective to January 9, 1964. The contract provided , among other things, for dues checkoffs by the Company payable to the contracting union and for a regular grievance procedure , including arbitration through the Conciliation and Arbitration Bureau of the Puerto Rico Department of Labor. For the Union the contract was signed by Jose Frias, trustee, Ramon Morales, shop steward, and Nestor Maldonado , agent. 1 Mr Torres, who participated in the hearing in this case on October 10, 1962, as repre- sentative of the Charging Party, did not appear on October 23 or 25 , and was therefore not present when the record in Case No. 24-RC-1726 was stipulated as part of the evi- dence here No other appearance was entered for the Charging Party 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD About February 28, 1962, four barroom employees covered by the contract- Aguilar, Sosa, Molina, and Betancourt-were discharged, assertedly for cause. Im- mediately thereafter company representatives discussed the merits of the discharges with Morales, Maldonado, and Delgado, the attorney for Local 610. They were unable to settle the dispute and arranged to have the grievance settled by arbitration. A hearing before a Puerto Rican Labor Department arbitrator was scheduled for March 30. Before the matter could be heard by the arbitrator certain events oc- curred, fully discussed below, which raised a question concerning the identity of the contracting or certified union, and which brought into being a labor organization bearing the name of the Independiente, the Respondent Union here. B. The theory of the complaint The complaint against the Company alleges that: (1) on March 30 it dealt with Morales, Maldonado, and Delgado as agents of the Independiente and in consequence of such recognition reinstated the four discharged employees; (2) these three union spokesmen were no longer agents or representatives of the certified union; (3) such action by the Company constituted a failure to honor the certificate, an inferential refusal to recognize Local 610, AFL-CIO, as exclusive bargaining agent, and an illegal grant of representative status to the Independiente during the certification year and contract term; and (4) all the foregoing amounted to a refusal to bargain with Local 610, AFL-CIO, in violation of Section 8(a)(5) of the Act, as well as illegal assistance to the Independiente in violation of Section 8(a)(2). As to the Respond- ent Independiente, the complaint alleges that by strike action on March 30, for the purpose of compelling the Company to bargain with that union and thereby bypass the certified labor organization, the Independiente coerced and restrained the em- ployees in violation of Section 8(b) (1) (A) of the Act. The Company denies that it extended any recognition to the Independiente as bargaining agent. It asserts that management's decision to reinstate the four em- ployees was reached independently of any demand or other action by that union's agents or of the employees' strike. As to any refusal to bargain with Local 610 it denies that any request for bargaining was ever made upon it. Another and all- embracing defense of the Company is that because of the March events which brought the Independiente into existence it was no longer obligated to bargain with Local 610, or whatever was left of it after that time. As to the Respondent Independiente, its position is that it has at all times been the certified and contracting union, albeit under a slightly different name, and that it always had a legal right and is still entitled to act as majority representative of all the employees covered by the certificate and the contract. It is in support of the broader defense assertions-by the Company that it had a right to withhold recognition from any union and by the Independiente that it is entitled to administer the contract by virtue of the certification-that they placed the transcript and exhibits of the Dorado Beach Hotel case into evidence. The im- mediately following sections of this report, lettered C, D, E, F, G, and H, constitute my findings and conclusions based upon the record of the Dorado Beach Hotel case. C. The history of hotel and restaurant employee organization in Puerto Rico In 1928 there came into existence in Puerto Rico a labor organization represent- ing hotel and restaurant employees throughout the island. It was called Union de Trabajadores de la Industria Gastronomica de Puerto Rico. In December 1957 this union affiliated with Hotel and Restaurant Employees and Bartenders Interna- tional Union, AFL-CIO, as its Local 610; it was thereafter called Local 610. For reasons that do not appear on this record there came a time in about 1960 when the affairs of Local 610 were placed, by International President Miller, under control of a trustee. Between that time and March 1962, when the events which gave rise to this case occurred, there were a succession of trustees sent by the Inter- national president to Puerto Rico. The story as detailed in this record starts with February 1961, when the trustee was a Mr. Loew; in that month an executive board was elected by the union members, and one Thomas Sola was elected by the members to be president of that board. The following month Miller sent John Dennis to Puerto Rico to serve as acting secretary-treasurer, under the stewardship of Mr. Loew. In June 1961, Manuel Parron arrived from the States as trustee to replace Lowe. He set aside the election of officers and removed Sola as president. Apparently the membership was satisfied with Loew for there resulted a general protest against Parron, the employees threatening disaffiliation from the AFL-CIO if Parron re- mained. He was, however, successful in persuading the employees to permit him MIRAMAR CHARTERHOUSE 739 to remain; he announced he would leave the executive board as it was; Dennis remained as acting secretary-treasurer. Parron left Puerto Rico and returned to the States on November 30, 1961. A few days later Dennis distributed a leaflet among the members in which he identified himself as "head organizer" and "trustee." Again there occurred what one of the witnesses described as a "real uprising" by union members opposed to the idea of Dennis becoming trustee. In consequence a committee of five members was desig- nated to travel to Miami and argue the general membership dissatisfaction to Inter- national President Miller. They met with him on December 8, 1961, and threatened that unless Dennis were removed the Puerto Rico Local would disaffiliate Parron never returned to Puerto Rico, but, as a temporary stopgap to satisfy the demands of the Local 610 group, Miller sent Al Gonzalez, the president of the Miami Local of the Inter- national, to take over the affairs of Local 610. With Gonzalez to Puerto Rico went Marcel Kenney, first International vice president, to see that matters ran smoothly. Dennis remained as a dummy. In the course of the conference at Miami, President Miller found occasion to say to the employee committee: "Not to attack too much the Teamsters because maybe they would reach an agreement, in which they would be out of our jurisdiction and they wouldn't have any relations whatsoever with us." On January 5, 1962, Miller appointed still another trustee, Joel Frias, who went to Puerto Rico to take over and relieve Gonzalez. Two months later, on March 9, 1962, Frias told Maldonado, the office manager, that he had been ordered to return to the States and that Maldonado should "keep in contact with the shop stewards of Local 610 because they were the ones who could save the Union if something should happen." The next day, Frias distributed to the employees gathered in the office copies of a letter from Miller announcing that there would soon be a new trustee. The last trustee, Leopoldo Ramos Ducos, called Ramos, arrived on March 13 in the circumstances described below. For 3 years he had been a paid organizer for Teamsters Local 901 in Puerto Rico. under Teamsters International Representative Chavez. It was on this occasion, and as a direct result of his arival, that the In- dependiente came into being. D. The Miller-Hoffa pact By the year 1961 Teamsters Local 901, the only Teamsters Local on the Island of Puerto Rico, was carrying on an intensive organizational campaign among hotel and restaurant workers in direct competition with Local 610. Its activities spread throughout the industry; indeed, the petition in this very proceeding (Case No 24- RC-1726) was filed by Teamsters Local 901 in an effort to replace Local 610 as majority representative at the Dorado Hotel. On about March 1, 1962 (the precise date is neither clear on the record nor of any material importance), an agreement was made between the respective presidents of the two International Unions. It came to be called the "pact," or the "Miller-Hoffa agreement." The various witnesses who had occasion to refer to it at the hearing agreed that the pact was made and that it was a document of a few pages. Understandably the orieinal- the physical document bearing the handwritten signatures of the two presidents- was not and could not be made available for receipt into evidence in this proceeding. The terms of that agreement have a direct bearing upon the merits of a number of litigated proceedings now pending in the Boards Regional Office in Puerto Rico. Counsel for the Independiente served subpenas daces tecum upon Ramos, the new trustee in charge of Local 610 pursuant to the very agreement, and upon Frank Chavez, the Teamsters International representative in Puerto Rico and the highest officer of that union on the island, in an effort to compel them to produce at least a reliable copy of the Miller-Hoffa pact. Each of these men professed inability to do so. Counselor Torres apneared at the hearing as attorney for both Local 610 and the Hotel & Restaurant Employees and Bartenders International Union. AFL- CIO. As Trial Examiner, I asked him several times to make an effort to communi- cate directly with his client. Mr. Miller the president of the AFL-CIO International, and to reauest a copy of the pact Miller had signed. He repeatedly evaded any direct reply. And Mr. Marcel Kenney, the International vice president of the AFL-CTO, who appeared as a witness, and who was sent to Puerto Rico at the time of the events ostensibly to look after implementation of the agreement blandly said he had never seen the original and had read "only a part" of a copy of the document. 727-083-64-vol. 144-4 8 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Two purported copies of the pact were received in evidence, Exhibit No. 22 of the Independiente, and Exhibit No. 4 of the Trial Examiner; they are identical. Ramos testified that a few months before the hearing he had delivered to an investigating committee of the Puerto Rican Senate a copy of the agreement, one which he had received from International Representative Chavez. All the parties stipulated that Trial Examiner's Exhibit No. 4 is an authentic copy of the copy [sic] of the agreement which Ramos placed in the hands of the Puerto Rico Senate Committee. As to Exhibit No. 22 of the Independiente, Ramos started by agreeing that it is "an absolutely correct copy of the pact that was made between the two International Unions." He said he knew this to be true because he had read the document that had been in his hand. As his testimony continued he began to say he was not sure about the copy; he then added that "in substance" the copy received in evidence did represent the pact as he recalled it. I am of the opinion that, considering the record as a whole, the copies of the pact received in evidence may be taken as precisely reflecting the original agreement. There can be no question but that those persons in the hearing room who could most reasonably be expected to be familiar with the terms of the agreement and whose respective positions made them especially chargeable with knowledge of its contents, were carrying out a concerted and deliberate strategy to keep the terms of the agreement from seeing the light of day, to confuse this Board on what is perhaps the most critical element of this entire case, and to mislead both their oppo- nents and the entire group of employees involved. Ramos was made autocratic boss of Local 610, received a copy of the pact from his superior, Chavez, and yet pro- fessed inability to remember its terms. Chavez started his testimony by saying, "I forgot what is in the agreement." He is the very official of the Teamsters International charged with carrying out the arrangement. He even testified: "We are complying very simply with the pact that was signed by presidents of two international unions." Yet he continued to feign ignorance of its terms. International Vice President Kenney had been in Puerto Rico a number of times on the problem of Local 610; he was said to have cooperated with Ramos in the trustee arrangement pursuant to the agreement. Yet he said under oath: "I have never seen a signed copy of the agreement in any form ... I've seen a part of a copy of the agreement." He made no effort to explain how a two-page document could possibly come to be cut into segments for distribution and how he could look at the whole and see only part. And finally, Torres, the trustee's lawyer, asked by the Trial Examiner to help obtain evidence of the contents of the agree- ment, answered on the record: Mr. ToRRES: I do know that there was one copy in Puerto Rico of that document. I saw the document, I didn't read it all. I didn't want to read it. TRIAL EXAMINER: Why? Mr. ToRRES: Because when you don't read something, you are not involved in it-I cannot testify to its contents and so forth. In his own words Attorney Torres represents the Teamsters in all kinds of litigation, including Labor Board matters. Chavez, who as head man of the Teamsters in Puerto Rico is therefore necessarily Torres' client, testified 2 days after his lawyer announced he does not read important documents that come into his hands. As Chavez was being pressed by counsel for the Independiente for details of the pact, Torres urged a continuing series of objections on the grounds that the best evidence would be a copy of the pact! In view of what I deem a deliberate refusal by all those persons having knowledge of the pact and whose interest could be hurt or helped by producing either the original agreement or an openly admitted true copy of it, the secondary character of the exhibits received in evidence does not make them any the less proof of the contents of the agreement. In any event, there are admissions by Ramos and Chavez from the witness stand, partial but nevertheless revealing, as to the substantive terms of the agreement, which I believe in the total picture of the record suffice in themselves to establish the agreement, or, in the very least, to furnish adequate corroborating proof of the reliability of the copy received as an exhibit. After considerable evasion and with marked reluctance Ramos finally came forth with the following phrases as to the contents of the agreement: "About that the Teamsters people will withdraw their interest in the hotel industry . . . the other thing is that I was named trustee . . . for the Local 610 . . and the agreement is it would be effect for 5 years, and the same would be declared void if I resigned That's all I can remember." In like fashion Chavez, from the witness stand, evaded all questions as to his knowledge of the terms of the agreement, but finally came forth with the following: "I remember that we were not supposed to raid Local 610's jurisdiction . . . we will strictly abide in our jurisdiction with relation to Local 610, MIRAMAR CHARTERHOUSE 741 we will turn over to Local 610 , which the approval of the membership , whatever we have organized now in their jurisdiction . Local 610 further agrees that they never interfered in our jurisdiction ." Chavez also conceded that the pact provided that in the event Ramos ceased being trustee for Local 610, the Teamsters International could unilaterally revoke the agreement. On the basis of the entire record as made I find that the copy received in evidence, set out in full immediately following this section of this report , is the Miller-Hoffa pact. The more significant provisions are as follows: Teamsters Organizer Ramos to be appointed as trustee over Local 610. Teamsters International to withdraw all representation petitions pending before the National Labor Relations Board in the hotel and restaurant industry in Puerto Rico. Teamsters International to transfer to Local 610 all of those of its members in the hotel and restaurant industry. "It is further agreed and understood that there shall be no press releases of any kind concerning this agreement." 2 The agreement to remain in force for 5 years, but the Teamsters could unilaterally terminate it if Ramos ceased to be the principal officer of Local 610. Ramos to have full charge of the staff as well as the right of hiring and dis- charging employees of Local 610. "It is further agreed that his [Ramos '] successor during the life of this agree- ment shall be subject to the approval of the Teamsters Union." COPY OF AGREEMENT IN EVIDENCE The International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America, hereinafter referred to as the Teamsters International, and the Hotel and Restaurant Employees and Bartenders International Union, here- inafter referred to as the Hotel Employees International , in exchange for the mutual promises and other consideration set forth herein, do hereby agree and convenant as follows: 1. The Hotel Employees International shall appoint as trustee of Hotel Em- ployees Local Union 610, Brother Lepoldo D. Ramos, at present a member and organizer of Teamsters Local Union 901 . The Hotel Employees International shall also appoint Brother Ramos as a Hotel Employees International Organizer, with the understanding that Brother Ramos will be on the payroll of the Hotel Employees International and will conduct his activities in accordance with the rules and procedures of the Hotel Employees International under the direction of General President Edward S. Miller, or his successor. 2. The Teamsters International shall withdraw all representation petitions now pending before the National Labor Relations Board, with the exception of the La Concha petition, and for the life of this agreement shall not file any further petitions with the National Labor Relations Board with respect to employees in Puerto Rico falling within the jurisdiction of the Hotel Employees International. The Teamsters International shall also transfer to Hotel Employees Local Union No. 610 all its members in Puerto Rico who now fall within the jurisdiction of the Hotel Employees International. 3. The Hotel Employees International agrees that negotiations for collective bargaining agreements to cover the members of Hotel Employees Local Union 610 shall be conducted on a local union level and shall be subject to the approval of the members involved. 4. It is further mutually agreed that a Teamster -Hotel Employees Joint Organizing Committee shall be established by the Teamsters International and the Hotel Employees International , with the express understanding , however, that the Hotel Employees International will not be requested to become, and will not become, a part of any effort to organize any workers who do not fall within its established jurisdiction . Joint Organizing drives shall be financed in the manner mutually agreed upon by the Teamsters International and the Hotel Employees International. It is further agreed and understood that if the Joint Organizing Committee should decide to organize employees beyond the geo- 2 In my judgment the patently incredible testimony of the witnesses Ramos, Chavez, and Kenney concerning their purported inability to recall the terms of the agreement , and the ievealing statement by Attorney Torres concerning this asserted ignorance of the pact, support the finding that this provision, appearing in the exhibit copy, was part of the original signed document. 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD graphic territory of Puerto Rico, specifically in the Caribbean Island area, the Hotel Employees International shall agree in advance either to participate in the particular organizing drive or, in the event the Hotel Employees Inter- national should determine that it does not wish to participate in the particular drive, the Hotel Employees Union shall agree in advance that if the Teamsters International shall organize the employees involved, the employees will remain members of the Teamsters International and will not be transferred to the Hotel Employees International. 5. It is further agreed and understood that there shall be no press releases of any kind concerning this agreement . At a meeting of the members of Hotel Employees Local Union 610, International Organizer Ramos will be introduced to the members as the International Trustee of the Local , and International Organizer Ramos will announce to the membership of the Local the establish- ment of the Joint Organizing Committee. This agreement shall remain in full force and effect for five years after the date of its execution unless it is modified by mutual consent of the parties , or unless its implementation becomes impossible by operation of law. However, it is expressly understood that the Teamsters International may unilaterally terminate this agreement if Brother Ramos ceases to be the principal executive officer of Hotel Employees Local Union 610. For the INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSE- MEN, AND HELPERS OF AMERICA, (S) James R. Hoffa, JAMES R. HOFFA, General President. For the HOTEL AND RESTAURANT EM- PLOYEES AND BARTENDERS INTERNATIONAL UNION, (S) Ed S. Miller, EDWARD S . MILLER, General President. (Handwritten) Leopoldo D. Ramos shall be the principal officer of the Local 610 and as such have full charge of the staff and as such shall have the right of hiring and firing staff. It is further agreed that his successor during the life of this agreement shall be subject to the approval of the teamsters union. E. Evolution of the Independiente from Local 610 When Miller, of the Hotel & Restaurant Workers International , agreed with Hoffa, of the Teamsters International, to deliver complete control over the Puerto Rico Local to a Teamsters organizer , the local union was in the hands of Trustee Frias, the last of a long line of such trustees who had been sent from the States over several years. The last meeting of employees or of members in Local 610 had taken place in Febru- ary of the year before, when the last election of officers was also held. A later trustee, Parron, removed all of the elected representatives. In consequence , at the beginning of March 1962 there were no regularly elected union officers. There was, however, a still-functioning executive board; this, according to the uncontradicted evidence, by gracious sufferance of Trustee Parron in June of 1961. In addition, there were a number of organizers employed by Local 610, a number of stewards who functioned at the different hotels and restaurants where union members worked, and an office staff consisting, so far as the record shows, of an office manager and a janitor. It also appears that one Rosario served as treasurer of the executive board, and one Boucher as vice president of the board . If it can be said that there were any "officers" or leaders among the union members in the Puerto Rico Local at that time these were the only such persons. In addition there was Frias, the trustee, and Dennis, the would-be trustee , who still functioned under Frias as secretary-treasurer. These last two, of course, were simply representatives of International President Miller from Cincinnati, and not leaders of the Union in the sense that officers are the selectees of its members. Word of the pact and of the imminent designation of a Teamsters organizer to take over Local 610 reached Puerto Rico on about March 9 or 10. There was an immediate protest reaction by a large number of union members, including particu- MIRAMAR CHARIERHOI SE 743 larly members of the executive board and the longtime Local 610 organizers. A spontaneous move to prevent a Teamsters takeover was born. Stewards, organizers, and members of the executive board constituted themselves into a steering committee. This group remained somewhat amorphous for a few days until by the 13th or the 14th it jelled into a solid group of between 10 and 20 persons. Its first action was to send a telegram to Miller in Cincinnati telling him that the agreement had "aroused general indignation of our membership" and demanding "immediate autonomy." A copy of this telegram was simultaneously sent to Mr. Meany, president of the AFL-CIO.3 By return telegram Miller swept aside the employees' protest and said that Ramos had been hired •"because of his experience in the hotel and restaurant field." The steering committee repeated its protest to Miller by telegram once again on March 13, saying they "reject" the appointment of a Teamsters organizer over Local 610. No further response was ever received by this group from Miller. At 2:30 in the morning of March 13, Ramos, accompanied by five regular Team- sters Local 901 organizers (Gotay, Gonzalez, Mercadero, Henry Lugo, and Angel Ortiz) appeared at the office of Local 610 and attempted to gain possession of the premises, the records, and all other property belonging to the Union. They were confronted by certain union members who had anticipated this move and who called the local police authorities in advance. There resulted a period of extreme confusion from that early hour until perhaps noon of the same day. As word spread throughout the hotels, union members, stewards, and members of the executive board kept com- ing to the office and forming a mass obstruction to the entry of Ramos. At one time there were as many as 80 persons crowding the office rooms, mostly Local 610 mem- bers, but including also perhaps 15 members of Teamsters Local 901. The police sided with the Local 610 people and kept the Ramos group out. At one point Ramos was permitted to go to the second floor office, but he never succeeded in gaining physi- cal possession of any records or other property of Local 610. The steering committee was in virtually constant session, with members coming and going. There were law- yers in profusion: Delgado, longtime Local 610 attorney; Torres, Teamsters lawyer generally and up to that moment attorney of record for Teamsters Local 901 in the Dorado Hotel representation proceeding; Andreu Ribas, Chavez' legal representative and also a Teamsters lawyer; and Hipolito Marcano, Puerto Rican senator and presi- dent of the Puerto Rico Federation of Labor, who encouraged the local union in its struggle for independance from either of the International unions. Eventually, Ramos and the Teamsters organizers left the area; Ramos has never succeeded in gaining possession of any of the records or documents of the old Local 610. Later in the day he visited the two local banks where the union funds were on deposit, claimed the right to make withdrawals, and succeeded in having the funds frozen. With the conflicting claim advanced by the steering committee on behalf of the Independiente these funds in the hands of the banks remained for disposition by court litigation. All those persons who could in any way be said to be officers or agents of Local 610 as it was constituted before these events, apart from Trustee Frias and former Trustee Dennis, became part of the steering committee. This included all members of the executive board, Rosario and Boucher, treasurer and vice president respectively of that board, the office staff, and a considerable number of stewards and organizers. It does not appear that a single person who could be said to have held any kind of elected or appointed office in the Union joined forces with Ramos in any way. Members of the steering committee spent the major portion of the afternoon of March 13 duplicating from 5,000 to 6,000 copies of a notice calling a general mass meeting of union members for the next day. The announced purpose of the meeting, as stated in the notice, was to protest the appointment of a Teamsters organizer as trustee and to consider disaffiliation from the AFL-CIO. That notice was widely distributed throughout the Island to employees and to various hotels and restaurants. On March 14, there took place a mass meeting of members of the Union The steering committee, assisted by Attorney Delgado, was in charge. Maldonado, a 8 The Miller-Hoffa pact appears to be a clear violation of the policy statement of the AFL-CIO executive council issued August 18, 1958, which reads, in pertinent part- Therefore, this Executive Council declares it to be the policy of the AFL-CIO that any alliance or agreement, formal or informal, between an affiliate of the AFL-CIO and the International Brotherhood of Teamsters be cancelled Further, that this above-stated principle applies to any proposals for new alliances or agreements be- tween the corrupt leadership of the International Brotherhood of Teamsters and any AFL-CIO affiliate. [ See 42 LRRM 58.1 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD longtime organizer of Local 610 and for some time the office manager, testified that there were present for the meeting between 400 and 600 members. Blas Panzardi, an old organizer from Local 610 who defected to Ramos 3 months after the March events, testified that in his opinion there were "around 150, more or less." Rivera, who acted as secretary to take minutes of the meeting, set the number at about 300. It is clear that the gathering overflowed the meeting hall and offices occupied by the Union. The men stood about on the streets and the sidewalks; loudspeakers were set up so that persons outside the building could hear what went on in the crowded rooms upstairs . This was clearly the largest turnout of any membership meeting the witnesses could recall. The last meeting of employees that ever took place in this Union, back in February 1961, was attended by about 200 persons. In the interval, of course, the affairs of the Union were conducted by successive trustees who were not obligated to, and do not appear to have consulted the desires of the membership. The meeting proceeded for its announced purpose and a motion to disaffiliate from the AFL-CIO and to go independent was made; it was seconded a number of times. There ensued a general shout of approval. A call was made for no votes and none was heard. There was also a motion to reject the appointment "of any Teamster as trustee of our union." In like fashion, no negative votes being voiced, the motion was unanimously deemed carried. The individual membership of the newly formed steering committee was announced, 20 names were read off as constituting the control committee, and the matter stood at that point. The evidence as a whole shows clearly that when expressions of opinion were voiced by individual members they were in the form of general cheering in the building and outside to show a universal approval and enthusiasm for what was going on in the meeting room itself. Sometime in April a revised constitution was prepared and adopted. It followed substantially the terms of the old Local 610 AFL-CIO constitution, differing pri- marily by deletion of all references to the International Union and to those matters that are pertinent to an affiliated local. The name of the organization was changed only by dropping the AFL-CIO Local designation. As an independent union this group then proceeded to campaign for membership, to participate in election proceedings, and generally to carry on in an attempt to represent employees in the hotel and restaurant industry throughout Puerto Rico. What funds were on deposit in the name of the old Local 610 in the banks remained frozen; all the properties of the old union, including the physical offices and books and records, have at all times remained in the control of the steering committee. F. The activities of Leopoldo Ramos Ducos as trustee The appointment of Ramos as trustee of Local 610 was effective March 12, 1962. He testified that after failing to obtain possession of the Union's records he did nothing for about 1 month. He rented an office in the beginning of April, paying the first rent on April 16 About the same day he hired four persons to work for him as organizers : Angel Ortiz, Henry Lugo (these two had accompanied him during the night of March 12 and 13 to seize the records), Angel Ramon, and Victor Mar- tinez. All four of these had been regular Teamsters Local 901 organizers in the hotel and restaurant industry prior to that day. Sometime in June he added to his staff two other former Teamsters organizers, Victor Ortiz Jusino and Adolfo Urdo. By the time of the hearing in October, two other organizers were working for him- Miguel Cruz and Blas Panzardi-each of whom defected from the Independiente to go to work for Ramos. Operating out of his office and with these organizers to assist him, Ramos pro- ceeded to draft and have printed a large number of campaign leaflets which the organizers distributed at the various hotels and restaurants, calling upon workmen to join or to vote in favor of Local 610, AFL-CIO. Ramos went on to testify that he never held any meeting of employees or of union members until the month of September. Sometime in April he prepared a form demand letter which he distributed to those hotel and restaurant employees whom he believed to have unexpired contracts with Local 610; he called upon them to recognize him as the authorized representative of the contracting union and to pay over to him dues checkoffs and other welfare bene- fits called for in the agreements He said he asked International Vice President Kenney for copies of contracts in effect but that Kenney never sent them to him. Ramos also testified that none of these employers recognized him as the spokesman for the bargaining agent; that none forwarded any money to him; that some withheld action because of the conflicting claim received from the Tndependiente; and that others placed the dues checkoff payments in the hands of the local courts pending final litigation. MIRAMAR CHARTERHOUSE 745 G. Evidence indicating that after March 13, 1962, Local 610, AFL-CIO, was an activity of Teamsters Local 901 in disguise 1. The Miller-Hoffa pact, upon which the Ramos designation as trustee rested, contains several provisions which show convincingly that Ramos was not selected for this post because of any personal qualifications, but only because of his status as a Teamsters organizer. One clause provides that the "deal" would be off if Ramos were removed. Another specifies that any successor trustee must also be acceptable to the Teamsters International. It follows from these agreements that what Miller intended to concede, and what Hoffa was exacting by the placement of Ramos in complete charge of the Local, was not merely the use of an experienced organizer or union leader, but instead the permanent entrenchment of a Teamsters representative in unfettered control of Local 610. 2. The pact also provides that there should be established a joint organizing com- mittee of the Teamsters International and the Hotel & Restaurant Workers Interna- tional. Chavez, the Teamsters International representative in Puerto Rico, admitted candidly no such cooperative step was ever taken. 3. Chavez was as much a participant in the effort to take over the offices and the records of Local 610 as was Ramos himself. Together they discussed the pact with Myra Wolfgang, an AFL-CIO International vice president, at a hotel a day or two before the events of March 13. Late in the evening of March 12, Maldonado, a spokesman for the temporary steering committee, met Chavez at the hotel and told him of the telegram which had been sent to Miller in Cincinnati, giving the latter a 48-hour ultimatum to cancel the designation of the new trustee. According to Mal- donado, Ramos was also present and Chavez said to him that he should go to the office but wait 24 hours. Chavez recalled having told Ramos that night "he should go in the morning, early, go in the office . . . because if not the politicians might try to stop him." Ramos testified that he sat on a sofa 6 feet away from the other two while they talked but did not hear what they said. I discredit his denial. When Ramos attempted to take over the Local 610 office at 2:30 the next morning, and continued his efforts throughout the day, Chavez was there to assist him. At precisely what time Chavez arrived is not clear on the record but I think it unim- portant to decide exactly at what moment he eame. According to him he arrived at about 10 o'clock; he had simply heard there were "a lot of policemen there" and "I wanted to see what it was all about, that's all." Perez, another witness and one of a group guarding the office during the night, put Chavez together with Ramos at the very hour when the Teamsters group arrived at 2:30 a m. Ramos, who gave a more detailed story of the events, stated unequivocally that after having trouble with the old group which prevented his entry, he personally went to the home of Chavez at 6 a.m. to pick him up. He continued to say that be and Chavez then together went to the hotel to confer with Myra Wolfgang at about 6:30 a in ; and that to- gether they returned to the office where by that time there were perhaps 80 persons milling about the place. Regardless of the hour when Chavez may have arrived, there is no question but that he was there early in the morning, that he went there for the purpose of assisting the takeover, and that he, like Ramos, was in the com- pany of the several regular Teamsters organizers. With time the police permitted Ramos to ascend to the second floor office, but he had no success in gaining control or possession of anything. He walked out to the balcony facing the street and called down to Chavez, who was on the sidewalk. Ac- cording to Ramos he told Chavez, "There is a jam in here-they refuse to give me the records, to hand me the records," and Chavez answered for him "to stay there until something happened, because I 1Ramos] was to call Attorney Ribas and try to fix the problem." Chavez quoted Ramos as asking him, "What am I supposed to do?" and then added that "maybe" he told Ramos he (Chavez) would call his own lawyer. On Chavez' admission Andreu Ribas is his lawyer, and a "Teamsters lawyer." I do not know who called Ribas, for Ramos and Chavez each testified it was he who telephoned the lawyer. Ribas did arrive, and shortly thereafter. as at- torney of record for Ramos, filed an injunction proceeding in the Federal District Court against the old members of Local 610 I think on this record, and particularly in view of the demeanor of Ramos and Chavez on the witness stand, a more reliable version of the instructions Chavez called up to Ramos on the balcony, and the version which I credit, is that given by witness Santiago- "You don't give up a inch no matter what it takes. They have to go and we are taking over." 4. Mr. Torres, the attorney who represented Ramos' Local 610 at the 2-week hearing in this stage of the proceeding, stated on the record that he represents the Teamsters "in certain cases, criminal cases, civil cases, and some hearings before this 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board etc . and so forth." He is also the attorney who, on behalf of Teamsters Local 901, filed the petition initially in this case back in 1961 and represented Teamsters Local 901 throughout the proceeding until the question of these objections arose. 5. Virtually all the assistants Ramos used in his campaign among the hotel and restaurant employees, including the group at the Dorado Hotel , were Teamsters organizers who went to work directly for him. Chavez testified it was he who recom- mended the hiring of all six of the Teamsters who constituted Ramos' entire payroll by June of 1962. A particularly revealing example of the influence Chavez exercised over the activities of Ramos appears in the testimony of the trustee himself at one point: "It was a Saturday-I was at Dorado Hotel making my campaign. He [Chavez] showed up in my office and named two organizers to be switched from Teamsters to Local 610. That's what I declared at the Puerto Rico Senate . . . he appointed two organizers to Local 610 " 6. In his activities after having hired the Teamsters organizers , Ramos prepared and distributed a large number of leaflets in the name of Local 610, AFL-CIO. He testified quite candidly that most of these leaflets were made at the printshop owned and operated by the Teamsters Union. He said he paid for the printing jobs. It also appeared that three of the many Local 610 leaflets identified and received into evidence were printed at a private shop unconnected with Teamsters Union. As to some of the Local 610 leaflets Ramos disclaimed any responsibility , either for their preparation or distribution . He was flatly contradicted by Chavez. Chavez spoke of having himself "dreamed up" the language of some of these , of their dis- tribution by Teamsters organizers not in Ramos' employ, and of general campaign activity among hotel and restaurant workers conducted by Chavez himself. He also said that Ramos ordered these leaflets, and paid for them directly after their printing at the Teamsters printshop. In fact , Chavez made no mystery of his participation in the campaign carried on in the name of Local 610, AFL-CIO. He insisted that Ramos always paid for leaflets printed in the Teamsters printshop , but he candidly conceded many of them were written by himself or his personal assistants, and were distributed by both those former Teamsters organizers who had gone to work for Ramos, and others who had at all times remained on the payroll of Teamsters Local 901. He said he furnished the services of his own people "gratis." Indeed, from the totality of his testimony it appears quite clear that he virtually did not distinguish between the Teamsters campaign among these employees before the Miller -Hoffa pact and its continuance thereafter. Q. Did you used to help Local 610 with your organizers at the campaigns at the Dorado Beach Hotel? A Yes, oh, sure. Q. During the election, May 4th and June 1st elections A. All the way through from the beginning. He admitted quite as candidly that his organizers also campaigned during this very period by visiting the homes of hotel and restaurant employees to solicit Local 610 adherence. There is direct (his own testimony) evidence that even Ramos continued to think of himself as a Teamsters representative and not as an AFL-CIO official at all. As late as September he wrote and had his organizers distribute a leaflet attacking the Independiente and the SIU ; the pamphlet was distributed at several large hotels whose employees were involved in another active representation proceeding before the Board. Ramos signed this leaflet "Teamsters Local Union 901," and its closing state- ment, in very large black letters, is "The Teamster always conquers." 7. Chavez completed his testimony on October 3, 1962. His last statement as a witness was that while the pact had been in effect up to that very day, as of "now" it was "off." Five days later , on October 8, as Ramos was concluding his testimony in the case, he said that some of his organizers (former Teamsters ) "are thinking of going to Local 901 Teamsters . they have told me that they are thinking of some conversation they had with Mr . Chavez, to go to work for Teamsters Local 901." With this, the cycle of fraud and trickery upon the employees , agreed upon in the Miller-Hoffa pact but kept hidden by its very terms, would seem to have come full circle. When Chavez calls the tune of agreement , the Teamsters organizers move over to Ramos' payroll and distribute Local 610, AFL-CIO, leaflets approved and drafted by Chavez. As soon as Chavez has a change of heart , they think of shedding the AFL-CIO cloak and once again emerging in their true colors as the Teamsters Union. MIRAMAR CHARTERHOUSE 747 H. Concluding findings as to the nature and character of Local 610, AFL-CIO, under the trusteeship of Ramos About March 5, 1962, the president of the Hotel & Restaurant Employees and Bartenders International Union signed a document officially designating a new trustee over its Local 610, with both the name of the new designee and the effective date of the appointment left blank. On the 12th the name of Ramos was inserted on the document and his tenure started . Whatever may have been the legal effect, in a very technical sense, of this action by Miller, from that moment on Local 610, AFL-CIO, in Puerto Rico in fact ceased to exist as a labor organization within the meaning of that term as defined in the Act.4 The only action taken by any employees or members of the labor organization was to reject Ramos as trustee, to disaffiliate from the International AFL-CIO, and to create a labor organization called the Independiente. The mass meeting of March 14 was attended by a larger group of union members than , it appears, had ever assembled at an employee or member- ship meeting before. If the percentage participation at the meeting by 400 to 500 of the total paper membership of 4,000 seems small, it must be remembered that for several years the summary treatment of this local at the hands of the International had precluded any meeting at all, the members were no longer accustomed to being accorded voting rights. The motions to end any relationship with the International, to change the Union's name, and to continue its real existence, were carried by universal cheers and acclamation . The leaders of the employee members may not have been duly elected officers in the formal , traditional sense, but this was only because for several years the action of the International president had shut off any employee expression of choice in the matter . If any persons could be viewed, in retrospect, as then hold'ng positions of leadership or "officership" among the em- ployees, it was the members of the executive board, the officers of that board, the stewards at the various hotels and restaurants , and the paid organizers . To a man they moved with the disaffiliation and took respective positions continuing in the newly formed labor organization . There is no indication at all that a single member at that time chose to join forces with the new trustee and bring into being any other and separate labor organization. In contrast, the record shows clearly that for a period of a full month, from March 12 to about April 9, Local 610, AFL-CIO, consisted of nothing more than the document designating Ramos as trustee, and Ramos himself. In the trustee's own words , he had "no organ;zation." If there was a Local 610 organization at that time. it was no more than a paper local. When Ramos did begin to take action in April, nominally as an official of Local 610, AFL-CIO, it was only as a tool of the Teamsters Union and its International Representative Chavez. To assist him in his attempt to persuade hotel and restaurant workers to join forces with him, Ramos hired Teamsters organizers , the very persons who, before the new trusteeship, had been campaigning for Teamsters Local 901. Chavez recommended the selection of the Teamsters organizers; Chavez "switched" organizers from the Teamsters payroll to that of Ramos. At Ramos' request, Chavez and his personal crew in the Teamsters printshop drafted what appeared to be Local 610 leaflets, Printed them , and distributed them. It would appear that Teamsters organizers still on the Teamsters payroll were as active in distributing Local 610 leaflets as were the former Teamsters organizers being paid by Ramos. One of the first inducements the new Ramos-Local 610 offered hotel and restaurant employees was "medicines completely free of charge" at the Santa Rita Drug Store. Chavez admitted the Santa Rita Drug Store is owned and operated by Teamsters Local 901, and added he "thought" it has been used to dispense free medicines to hotel em- plovees. He laid that since May 1, 1962, the Teamsters has also owned a dispensary at the Blanco Drug Store , and here also he "thought" Dorado Beach Hotel employees had been given free medical assistance. Thus, the intended scheme revealed by the Miller-Hoffa pact was in fact carried out, but in form only. The meatless shell of what used to house an energetic and determined group of workmen did become a legal structure controlled directly, as well as behind the scenes, by the Teamsters Union. It did not, however, grow into the substance of a labor organization. There is no evidence that the Ramos-Local 610 ever had any members or represented any employees. Among other things, the Section 2(5) of the Act reads as follows: The term "labor organization" means any organization of any kind, or any agency or employee representation committee or plan , in which emploilees participate and which exists for the purpose, in whole or in part, of dealing with employers concern- ing grievances, labor disputes , wages, rates of pay, hours of employment , or condi- tions of work . [Emphasis supplied I 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pact provided that the Teamsters "shall also transfer to Hotel Employees' Local Union No. 610 all its members in Puerto Rico who now fall within the jurisdiction of the Hotel Employees International." I do not know whether Chavez physically delivered to Ramos the membership or authorization cards of any employees at all. Nor need I comment at this late date in the administration of this statute upon the legal effect of any such agreement or transfer of employees by union leaders from one union to another. It is clear, however, that between March 12 and sometime in September no union employee meeting of any kind was held by Ramos for his Local 610. None of the employers who previously had contracts with Local 610 recognized him as a bargaining agent. None of them accorded him the contractual benefits flowing from the existing agreements covering employees in the hotel and restaurant industry. He never came into possession of any of the assets, or records, of the true labor organization to which the employees chose to adhere. In sum, whatever exist- ence Local 610, AFL-CIO, had in Puerto Rico centered in Ramos and in Ramos alone. Local 610 was but a fiction, or, at best, a legal technicality created by the stroke of the pen when Miller named a trustee. There was no more a Local 610 affiliated labor organization than there would be had the International issued a charter to a designated local, with no further action taken upon it by anyone. The situation here is not analogous to those in which the Board has had occasion to speak of "schism" within a labor organization. There did not emerge two unions where first there was one. Within the intendment of the statute as a whole a labor organization is distinguished above all by the participation in its activities by "em- ,ployees." In this instance, so far as appears, all the employees continued their separate organizational life exactly as they had before, with the exception that they severed their organization from the AFL-CIO; their union otherwise remained the same. There was no dissident or minority group which chose to remain with an older leader- ship, or with an identifiable group which drew aside.5 I think the record as a whole warrants the conclusion that the same labor organization which was born in 1928, and which affiliated in 1957 with the AFL-CIO, continued its individual and dis- tinctive existence from March 13 on under the name of the Independiente. If there was any other organization it was the Teamsters Union, whatever it chose to call itself, or any one of its segments, at that time. 1. Further testimony by Ramos in the complaint proceeding Ramos completed his testimony in the Dorado Hotel case on October 8; he was called again to testify for the General Counsel on October 25 as a rebuttal witness in the instant complaint proceeding after the two Respondents had rested their de- fense on the Dorado Hotel record, which, in most pertinent part, consists primarily of Ramos' own statements under oath. In the second appearance he retracted some of his admissions and changed other points in his story. One of Ramos' most revealing acts, as late as September, showing that he was even then acting as a Teamsters organizer and not as an AFL-CIO agent, was his prepara- tion and broad distribution among hotel employees of a leaflet in the name of "Team- sters Local 901" and emphatically proclaiming "The Teamster Always Conquers." Two weeks after unequivocally admitting-several times-that he had personally written the leaflet and ordered its distribution, he said he had nothing to do with it, either in the preparation or distribution. In his earlier testimony Ramos also clearly said that in response to his April 23 form letter calling upon hotels and restaurants to send contract dues checkoffs to him personally, no employer did so. In his second appearance he changed this and testi- fied that three employers-Atlantic Beach Hotel (7 employees), Night and Day Nightclub (20 employees), and El Nilo Restaurant (20 employees)-did forward contract dues to him "immediately after I claimed it by the letter . . . the beginning of April . He added that a fourth company, Zipperles Restaurant, recognized him as bargaining agent and dealt with him beginning sometime in June. Ramos impressed me as an unreliable witness when he testified at the first hearing; the fact that he completely reversed important details of his testimony later does not make him more credible in my judgment Chavez, the Teamsters International repre- sentative, corroborated Ramos' first story about the "Teamster Local 901" leaflets, saying that Ramos had ordered them to be printed at the Teamsters printshop. Asked if he had made any attempt to disabuse the hotel employees of the impression, neces- sarily arising from the critical leaflet, that it was the Teamsters that was competing with the Independiente, Ramos came forth with a series of evasive answers In any event, his total demeanor on the witness stand, including particularly his incredible insistence that he was not familiar with the Miller-Hoffa pact, makes it impossible 5 Cf Hebron Brick Company, 135 NLRB 245. MIRAMAR CHARTERHOUSE 749 ,for me to accept his belated retraction. I find that he did write and distribute the leaflet in the name of the Teamsters. Considering his testimony as a whole, it may also well be that he never received any dues at all from the companies he listed in his second appearance. Whether or not any employers extended recognition to him as a trustee during those early days was an important issue at the Dorado Beach Hotel hearing and the question on that point was put to him clearly and more than once He did not equivocate in saying that none of them had done so. Be that as it may, I do not believe that any such dues which he may have collected from employers, even assuming it happened at all, suffice to alter the finding, to which I adhere, that his entire course of conduct amounted to nothing more than a front for Teamsters Local 901. At best he said he pocketed dues of about 50 employees out of a total membership of 4,000, a relatively insignificant matter. More important, however, there is every indication that the receipt of these dues in no way indicates employee desire to join or pay dues to the AFL-CIO or to have any regard for Miller's designation of Ramos as trustee of Local 610. Ramos said that the El Nilo and Zipperles restaurants were covered by a multi- employer Local 610 contract including six employers. When, at the expiration of that agreement, the Independiente filed a Labor Board petition for an election among the employees of all those companies, Ramos first intervened in the proceeding, and then withdrew his Local 610 from participation in any election. But such action is persuasive indication that when two restaurants forwarded dues to Ramos, it was not because their employees wished it so, but rather because, unlike other employers who deposited contract checkoffs in court or held them pending NLRB resolution of the question, these two were somehow persuaded by Ramos. Had it been the employees who wanted their dues paid to him, he would at least have, or he should have, attempted to establish his authority to act as their bargaining agent in the Board-conducted election. And as to Zipperles' restaurant, Ramos said the dues were forthcoming only after issuance of an unfair labor practice complaint by the Labor Board's Regional Director. Zipperles' restaurant settled with the Government, avoided further prosecution, and paid to Ramos. Dues collection in these circum- stances can hardly be viewed as successful organizational activity by "Local 610, AFL-CIO." And since the filing of the Independiente petition for an election, these restaurants have ceased sending anything to Ramos. I have no reason to believe that the dues forwarded to Ramos by the Atlantic Beach Hotel for 7 employees, and by the Night and Day Nightclub for 20 others, any more reflect employee intent to be represented by Ramos than does the action of El Nilo and Zipperles. Ramos said, for the first time in his later testimony, that he even discussed two grievances at these restaurants "about 15 days" after opening his office in April. As in most of his testimony, he was again vague as to details, and, of course, these facts, too, came as belated changes in testimony by a generally discredited witness. Ramos' final assertion was that his Local 610 was even certified by the Board's Regional Director after an election as bargaining agent for about 20 employees of the Under The Trees Restaurant. This one is located under and in the same building where Ramos opened his office in April. He said this happened in June, but he never mentioned the fact in his long testimony during the Dorado Beach Hotel hearing, where he also admitted there never was a member or employee meeting of his Local 610 before September. The Under The Trees Restaurant certificate means only that this very small group of employees were persuaded that they were voting for an AFL-CIO union when in reality it was Teamsters Local 901 that would do the bargaining for them. I could hardly conclude otherwise now that all the facts appearing in the Dorado Beach Hotel record have come to light. J. The refusal to bargain The General Counsel virtually conceded on the record that the evidence was not intended to establish directly a literal refusal by the Company to recognize Ramos as the authorized agent of the certified union or a precise rejection of a request by him on behalf of Local 610 for recognition as bargaining agent. All that occurred between Ramos and the Company was a demand for dues money under the current contract, and a reply from the Company asking Ramos to submit checkoff authoriza- tions in writing and signed by the employees before the Company could legally deduct any dues from wages earned. However, in the sense that direct dealings on behalf of employees with a union other than the certified one, if it be found that the Independiente was such a stranger labor organization, in itself constitutes a by- passing of the majority representative and therefore "a refusal to bargain" with 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the statutory representative, the evidence affirmatively and convincingly proves the allegation of the complaint. The facts as to the sequence of events leading to reinstatement of the four dis- charged employees, as to the written correspondence exchanged between the company representatives and the agents of the Independiente, and as to at least part of what was said among them, are not contradicted. When Morales, shop steward, Maldonado, business agent, and Delgado, attorney, first discussed the merits of the four discharges with company representatives on about the last day of February, the Company knew it was dealing with these three persons as representatives of the then Union-Local 610, AFL-CIO. The decision of both groups to go to arbitration was pursuant to the clause of the then current contract, which expressly provided that a grievance should be so processed By the time these two groups arrived, on March 30, at the office of the Puerto Rico Department of Labor arbitrator for the scheduled hearing before that official, the three employee representatives had become officers or agents of the Independiente, and the Company well knew that fact. Indeed, it is for the very reason that the Company was aware of the claim of these persons as repreesntatives of a labor organization called the Independiente, that the merits of the four discharges were never even discussed before the arbitrator. Instead, the first question raised by the Company, and the only one considered by the arbitrator at all, was whether the Independiente had any right to speak on behalf of the dis- charged employees in view of the disaffiliation action that had occurred within the Union on March 14. And the arbitrator, according to his decision, which by stipu- lation of the parties fully reflects what occurred before him, never heard any argu- ments respecting the merits of the discharge, and eventually, on April 5, 1962, issued a document saying merely he had no authority to answer the question of which of two competing groups had the right to be recognized as bargaining agent. Late in the afternoon of March 29, the day before the scheduled arbitration hear- ing, Maldonado, signing himself president, sent a telegram to the Company saying "We demand immediate recognition." Apparently the Company's response to this direct demand was to raise a question before the arbitrator the next day as to the Indenendiente's right to be recognized. When the parties left the office of the arbitrator in the middle of the day on March 30, the company representatives returned to the hotel; Morales, the shop steward, also went to the hotel to advise the employees of the state of affairs: and Maldonado, together with Attorney Delgado and the four discharged employees, proceeded to the office of the Independiente. About 1 o'clock Maldonado sent a second telegram to the Company, in which he again demanded reinstatement of the four employees and "recognition." The telegram gave the Company until 6 p m. that day to comply with both demands. The demand, of course. was on behalf of the Independiente. Because the employees as a group had decided that they were prepared to strike if the four were not reinstated, at the union hall these four pre- pared picket signs in anticipation of strike action. In the middle of the afternoon Grajirena, the hotel manager, telephoned the union hall and spoke to Attorney Delgado. Hs asked to be given until Monday to answer the second telegram and, when Delgado insisted upon the 6 p m deadline, asked the attorney whether this was a threat of strike. Delgado avoided any direct reply but repeated he would allow only until 6 p.m. Garjirena then called in another lawyer, Mr. Romero: up to that moment the Company had been represented by Attorney Collazo, who had also accompanied the company representatives to the arbitration hearing. Romero arrived at the hotel at about 5:20. When Steward Morales arrived at the hotel the employees learned that the Com- pany had not decided to reinstate the four discharged workmen At 6.05 p m. all the service and maintenance employees then on duty-a total of about 70 or 80- quit work and formed picket lines across the street from the main entrance to the hotel. They carried signs saying "Reinstate the employees or we stay out." Soon Maldonado and Delgado arrived and joined the pickets. By about 6:20 Manager Grajirena, together with Attorney Romero, anpeare^i in the lobby of the hotel with a letter they had prepared. Romero stepped down on the steps, invited Delgado to come to talk to him, and delivered this letter to him The letter offered immediate reinstatement to the four employees. but added that the Question of recognition of the Independiente should be submitted to the Na- tional Labor Relations Board. The matter was not settled on that basis, the manager and the company attorney returned to the manager's office. and they prepared a secon-t letter. In a short while Romero returned to the lobby with this, delivered it to Delgado, Delgado crossed the street and discussed the second letter with the employees, and by 7:10 most of the employees were back at work. By 7.30 the strike was completely over. MIRAMAR CHARTERHOUSE 751 The second letter reads as follows: After having studied the case of the discharge of the four (4) bar employees, we have decided to reinstate them to their employment paying them the time they have been out of work including tips, as provided in the applicable Man- datory Decree. The Company shall not discriminate against these employees. With respect to the recognition of the Union de Trabajadores de la Industria Gastronomica de P. R. (Independiente), we believe the matter should be sub- mitted to the National Labor Relations Board, which we shall proceed to do on Monday morning. The four men were immediately reinstated. On the Monday morning following the Company filed a petition for a representation election by the Board (Case No. 24-RM-79); the Regional Director dismissed that petition. The Independiente also filed a representation petition (Case No. 24-RC-1938) on May 4, and the Regional Director dismissed that one also. On appeal the Board, on August 28, reversed the Regional Director and directed a hearing on the Inde- pendiente's petition . The Board later modified its decision and ordered the hearing canceled and the petition to be held "in abeyance." That there was a causal relationship between the demands of the Independiente and the Company's decision to reinstate the four employees a month after they had been discharged is an inference that arises from the foregoing facts without need of much discussion. To offset this rather obvious conclusion the Company offered testimony intended to prove instead that the action of the Independiente had nothing to do with the reinstatement of the four men. Manager Grajirena testified that the new lawyer , Romero, arrived at the hotel about 5:20 p .m. and that while discussing with the company representatives the reason why he had been called "helped us in realizing that although these four boys were the only ones working with these bottles of liquor, the place where they stored it after the close of the bar-that several people could have gone into that storeroom or storage space and could have been the ones to water down the Scotch." He continued to say that the Company had no evidence that these four men had been the offenders, that it could not "pinpoint" the offense to them, and that Romero recommended that the Company reinstate them. I have no doubt the lawyer recommended that the Company reinstate the four discharged persons. I cannot hold, however, that the decision to do so that day was not the result at least in part of a powerful nudge by the Independiente . Romero was called into the situation to replace another lawyer only because the Company received the telegram from the Independiente . Grajirena had already received the implied threat from Attorney Delgado on the telephone that there would be a strike at 6 o'clock that evening if the men were not back at work. He admitted Friday evening is one of the critical times of the week in the hotel business . Further, although the strike started at 6 o'clock, and the Company knew the men wanted the four barroom employees back at work, it was not until after the employees had walked out that Romero appeared in front of the hotel with the letter offering reinstatement. More- over, the first letter did not offer backpay to the four employees; with Delgado re- jecting the first offer, and the employees continuing to strike , the Company prepared a second letter, now including backpay and tips. When this was offered to the union representatives the strike ceased. Of course it was the Company which decided to reinstate the men. But this is equally true of every economic concession an employer gives employees in the course of collective bargaining . I think what happened in this case was no different than what can be said of normal collective -bargaining procedures. Pressed by the officers of the Independiente , squeezed by the economic pressure of the strike, the Company reappraised its position with respect to the four men and decided to change its at- titude towards them . I find that the Respondent Company recognized the Inde- pendiente as representative of these four men at least, bargained with that union about their reinstatement, and thereby, as precisely alleged in the complaint , accorded to the Independiente collective -bargaining representative status during the certification year starting August 1961. Analysis and Conclusions 1. Refusal to bargain The crucial question upon which the legality or illegality of the Company 's dealings with the Independiente turns is a simple one. Was the Company's action on March 30 a bad-faith refusal to bargain with the certified or contract union? The obligation to deal with the certified union , and that union alone, for a 12-month period after 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD August 1961 is clear and not disputed .6 That the Company did bargain with a union during the "certification year" in this instance is also a fact. The General Counsel argues that on March 30, 1962, Local 610, AFL-CIO, with Ramos as trustee, was the certified union; the Independiente insists it was at that time the real beneficiary of the certificate ; the Company contends it simply did not, and could not know which of the two was entitled at that time to whatever rights flowed from either the cer- tificate or the contract. The Ray Brooks rule of law, like many principles emerging from the statute on which this complaint is predicated , is not concerned merely with words, or with the appearance of things ; its real intent is to govern matters of substance and the realities of collective bargaining in industrial life. That is why this so -called "1 year certifica- tion rule," seemingly one of the most absolute dictates of Section 8(a) (5) of the Act, is not really a per se doctrine, but permits of variations under what have been referred to as "unusual circumstances." 7 Or, in broader concepts , an employer's conduct must in all cases, including the certificate year situation, be examined in the light of the ever-present good- or bad -faith test.8 The Company's refusal to recognize Local 610 under Ramos is implicit both tangentially through the employee -reinstatement strike settlement with the Inde- pendiente, and by its express statement in the manager 's letter of March 30 that the matter of union recognition "should be submitted to the National Labor Relations Board." Were the circumstances of the moment so unusual as to fit this case into the exceptions to the Ray Brooks rule? I think yes . The Board has only recently said that "an employer can hardly be obligated to deal with a labor organization which has ceased to function." 9 In his own words Ramos had "no organization ." It was not shown, and it is not contended that a single employee , either in the Miramar Charterhouse or at any other hotel, chose to continue his affiliation with the AFL-CIO And, of course, every agent or representative of the old Local 610, bar none , assumed an active role within it. I cannot hold that a piece of paper-Miller's appointment of Ramos as boss of a local AFL-CIO union-was in itself a labor organization . To do so would indeed exalt shadow over substance . Precedent deals with certified unions that have became defunct and holds that the Ray Brooks rule does not apply; as a minimum that precedent governs here. And the fact that with time, after the events being considered here, Ramos did come to life wrapped in the cloak of the AFL-CIO but with the body and bones of the Teamsters, serves all the more to make this a most unusual circumstance calling for a waiver of the normal certification year rule. Not only did Ramos become a union different from the one the employees had chosen, but he started to function in fact as agent of the very labor organization which they had expressly rejected as their bargaining representative. If the question is posed in terms of good or bad faith by the Company in dealing with the officers of the Independiente at 6 p .m. on Friday, March 30, I think it would be equally impossible to say that its conduct was a bad-faith refusal to bargain with Ramos. The company representatives had heard of the revolt against the AFL-CIO by the hotel employees of Puerto Rico ; it was common knowledge and the newspapers had detailed how the Teamsters organizer had vainly attempted to seize the records and property of the Union . Maldonato and Delgado , who stood across the street from the hotel as spokesmen for the strikers , were the same representatives who had negotiated the contract for them and acted on their behalf at all times. And finally, not some, but all of the employees quit work and aligned themselves behind the four discharged workmen and the Independiente . It seems also fair to consider the fact that up to this point Ramos had made no claim for recognition upon the Company or communicated with it in anyway.10 If the Ray Brooks rule is to be given absolute , mechanical application in this set of facts, it means Grajirena , the hotel manager, was under a duty to set out to find e Ray Brooks v. N L.R B , 348 U S. 96. Carson Pine Scott & Company, 69 NLRB 935 ; Public Service Electric and Gas Co, 59 NLRB 325 ; Westinghouse Electric & Manufacturing Company, 38 NLRB 404 8 See N.L R B. v. Insurance Agents' International Union ( Prudential Ins Co.), 361 U.S 477, and N.L.R.B. v. American National Insurance Co., 343 U.S 395. 9 Rocky Mountain Phosphates , Inc., 138 NLRB 292 111 do not credit Ramos' testimony that 3 days after March 30, a security officer at the hotel named Barrios physically prevented his entry into the hotel to speak with the manager Grajirena testified there was no security officer by that name during that year, and he said his only instructions to the security officer who did work at that time was . to direct union representatives to his office I credit him. MIRAMAR CHARTERHOUSE 753 Ramos personally, and to clear the reinstatement of the discharged employees with him before he could legally compromise the demands of the total complement of workmen then on duty and put an end to the strike. In view of the total record before me, I cannot in good conscience so construe Section 8(a)(5) of the statute. I conclude instead that the evidence does not support the complaint allegation that the Respondent Company refused to bargain with the majority representative of its em- ployees in violation of the Act. 2. Illegal assistance The complaint alleges independently of all the foregoing that the Company illegally assisted the lndependiente in violation of Section 8(a)(2) of the Act. The only evidence which the General Counsel points to as proving this separate unfair labor practice is the Company's letter to the Independiente, reinstating four employees and promising to ask the Labor Board to decide whether the lndependiente was entitled to "recognition." Beyond the general statement that this action on March 30, 1962, constituted illegal assistance to the lndependiente, purely a reiteration of the conclusionary allegation of the complaint, the General Counsel did not articulate any theory whereby the Company's concession to Maldonado and Delgado at that moment, aimed at inducing the full complement of employees to resume working, can be rationalized into a conclusion of illegality. He did not file a brief on the law to support the complaint. I have considered two possible theories that the General Counsel may have intended to urge. The first is that any dealings with a union other than the certified or contracting one, in circumstances which require a finding of violation of Section 8(a)(5), automatically also amount to violations of Section 8(a)(2). Such a contention blurs the statutory distinction between the two sections of the statute; the argument was not shown to have been sustained in any prior Board decision and I am by no means certain that it is a valid contention as a matter of law. In any event, I do not reach that possible question in this case because it has not been proved that the Company violated Section 8(a)(5) to start with. Inasmuch as Ramos and his so-called AFL-CIO Local 610 was not in fact the majority representative of the Miramar Hotel employees on March 30, the Com- pany was not under statutory obligation to accord it exclusive representative status. The second possible theory of illegal assistance to the Independiente would rest upon the rule of Board law emerging from the Midwest Piping line of cases. When an employer is confronted at any given moment with two competing demands for recognition, each from a labor organization whose claim raises a real question concerning representation, it lends illegal assistance, and thereby violates Section 8(a) (2) of the Act, when it accords exclusive recognition to one of the two unions in the absence of a Board-conducted election.ii Where, however, an employer is confronted with rival union claims for exclusive recognition, one of which is substantial, reliably supported by reasonable evidence, and the other no more than a "bare" claim without substantiation, the employer is free to deal with the union which in fact represents a majority of the employees.12 To find a violation of Section 8(a)(2) under the principles of these cases, it must first be found that Ramos' Local 610 on March 30 presented the Company with a "real" question concerning representation, and that the Company accorded exclusive recognition to the Independiente when it reinstated the four discharged workmen. It is a serious question in this case whether Manager Grajirena's letter settling the strike was in fact a concession of exclusive bargaining rights to the Independiente. What bargaining did occur related directly only to the four discharged workmen, and did not affect the terms of employment of all the hotel employees. In a broader sense, perhaps, Maldonado and Delgado weie acting as spokesmen for all the strikers, and on their behalf were discussing with the company representatives whether the larger group would or would not return to work. But even viewing the discus- sions of the moment as affecting the work status of all the strikers, the total number of employees involved fell short of a majority in the certified or contract unit, because in addition to the 70 or 80 strikers the service and maintenance employee overall group totaled between 180 and 200. In any event, the letter expressly reserved the matter of "recognition" as a question to be decided by the National Labor Relations Board. More important, however, and I think dispositive of the issue even under this second theory, is the fact that Ramos' Local 610 did not present a "real" question ii Midwest Piping and Supply Co., 63 NLRB 1060 ; Novak Logging Company, 119 NLRB 1573. "William Penn Broadcasting Co., 93 NLRB 1104 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD concerning representation. Those same pertinent facts which lead to the conclusion that he did not, standing alone as trustee with "no organization," have the standing of the old certified union, must necessarily require a finding that in the total circum- stances his mere existence fell short of raising a real question concerning repre- sentation. In the light of the factual findings compelled by the record in the Dorado Beach Hotel case, I can only conclude that if there was a rival claim for recognition facing Manager Grajirena on March 30, 1962, it was really the voice of Teamsters Local 901, muted at that time. The Midwest Piping rule does not apply where at best one of the two competing unions is one which was recently defeated in a Board-conducted election. I shall, therefore, recommend dismissal of the Section 8(a) (2) allegation of the complaint. 3. Coercion by the Independiente I shall also recommend that the complaint against the Independiente be dis- missed. According to the General Counsel, by the act of its agents in forcing the Company to deal with the Independiente at all, that union improperly restrained the employees in their freedom to choose their own bargaining agent. Again, although no exact theory was articulated, I take it to be that inasmuch as the em- ployees already had chosen, less than 12 months earlier, Local 610, AFL-CIO, as their exclusive bargaining agent, the Independiente had no right to use the com- pulsive force of strike action to impose a new and different representative upon them. This argument looks like the other side of the coin, as it were, of the General Counsel's overall attack upon the strike settlement made between the Company and the Independiente on March 30. Was the Independiente really a new and different union from the one certified by the Board the previous August? Can it be said that with apparently all of the members and officers of old Local 610 shifting bodily into the Independiente, and with all the employees on duty that evening standing resolutely and solidly on the picket line, that union coerced them illegally when it spoke for them? Regardless of the avenue of approach, I see nothing illegal in Grajirena's strike settlement with the Independiente's representa- tives that day. The Company had a right, under the total circumstances, to nego- tiate with Maldonado and Delgado over the reinstatement of the four employees. And those same considerations which are pertinent to the dismissal of the Section 8(a)(5) and Section 8(a)(2) allegations lead to the conclusion that there was nothing wrong in the Independiente representing the strikers and speaking on their behalf to urge reinstatement of their fellow employees. RECOMMENDATION Upon the basis of the foregoing findings and conclusions , I recommend that the complaint herein be dismissed in its entirety. Landrum Mills Hotel Corporation d/b/a Hotel La Concha and Union de Trabajadores de la Industria Gastronomica de Puerto Rico, Local 610, Hotel and Restaurant Employees and Bar- tenders International Union, AFL-CIO. Case No. 934-CA-1613. September 20, 1963 DECISION AND ORDER On December 31, 1962, Trial Examiner Thomas A. Ricci issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Intermediate Report. There- after, the General Counsel and the Respondent filed exceptions to the Intermediate Report and supporting briefs. 144 NLRB No. 71.