Union De Empleados

700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union de Empleados de la Industria del Enlatado de scado y Ramas Anexas°de Puerto Rico, and its agent,, - Domingo Rivera Rosado and, National Packing Coinpany.CCase 24-CB-755 August 17, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS BROWN AND KENNEDY On June 23, 1971, Trial Examiner John M. Dyer issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in certain unfair labor practices alleged in the complaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Union De Empleados De La Industria Del Enlatado De Pescado Y Ramas Anexas De Puerto Rico, and its agent, Domingo Rivera Rosado, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's recommended Order, as modi- fied below.' APPENDIX, NOTICE, To MEMBERS; POSTED BY ORDER OF .THE NATIONAL LABOR RELATIONS, BOARD An Agency' of the United -States . Government After a trial in which Respondent f"Union, the Company, and the General Counsel of the: National Labor' Relations Board participated and'--offered evidence, the National Labor Relations Board, has found that we violated the law and' has ordere&iis to post this notice and we intend to carryout the'order of the Board and abide by the following: WE WILL NOT threaten to inflict-bodily'°harm nor shall We inflict bodily harm 'upon- -any ' of our members or any employee of National Packing Company or any member of their families nor damage their property because any of our mem- bers or the employees of National Packing Company exercise their rights not to join or assist this Union in strike activities. WE WILL NOT stop people from entering or leaving the plant by blocking the gate. UNION DE EMPLEADOS DE LA INDusTRIA DEL ENLATAro DE PESCADo Y RAMAS ANEXAS DE PUERTO RICO (Labor Organization) Dated By (Representative) (Title) Dated By (Agent) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 7th Floor, Pan Am Building, 255 Ponce de Leon Avenue, P.O. Box UU, Hato Rey, Puerto Rico 00919, Telephone 809-622-0586. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN M. DYER, Trial Examiner : National Packing Company (herein called the Company or Charging Party) filed the 8(b)(IXA) charge in this matter on January 8, 1971,1 alleging that the, Union De Empleados De La 1 Substitute the attached notice for the Trial Examiner's notice as the last indented paragraph exceeds the scope of the Order. 192 NLRB No. 132 1 Unless otherwise stated all dates herein occurred in 1970. UNION DE EMPLEADOS Industria Del Enlatado De Pescado Y Ramas Anexas De Puerto Rico (herein called Respondent Union or the Independent) ` and Domingo Rivera Rosado, its agent, restrained and coerced the Company's employees by threats of violence and physical acts of violence. On March 5, 1971, the Regional Director issued the complaint herein, which, inter alia,' alleges that the' Respondent Union and Domingo Rivera, Rosado threatened employees with violence if they tried to enter the Company's plant through the Respondent: Union's picket line, and that, on various occasions-with the knowledge and support of union agents, violence,was visited on employees who attempted to enter the-plant and when employees left the plant. On the basis of the various violative acts alleged, the complaint concluded that it was Respondent' Union's position and policy to prevent employees from entering the plant while its strike was''in progress and that the threats and acts were visited on and in the presence of employees with the full knowledge and approval of Respondent Union's officers and agents. Respondent's general answer admitted the commerce and jurisdictional facts and Respondent Union's status but denied the balance of the complaint . At the hearing it was stipulated that the officers and members of the' board of directors named'in the complaint were and are officers and agents of the Union for whose -acts the Union is responsible. It was further stipulated that the Respondent Union, engaged in a strike and picketed the Company's property on and after October 31, 1970. - At the hearing held in Ponce, on April 5 and 6,1971, the General Counsel produced testimony to a number of incidents which will be described below. The Respondent produced no controverting testimony to any of'the actions or statements. The parties agreed to have entered in the record as an exhibit a transcription of a tape recording of a radio address by Domingo Rivera Rosado. To the extent that this transcription differs from testimony given concerning such radio broadcast, I find the transcription, more accurate. I find however no basis in the broadcast speech for any further findings or inferences. All parties were given the,opportunity to examine and cross-examine witnesses, to argue orally, and to file briefs. A letter from counsel for-the Charging Party in the nature, of a brief was timelyreeceived. Testimony of the General Counsel's witnesses is uncon- troverted and I find it worthy of belief. General Counsel's testimony essentially supports the allegations of violative acts in the complaint and I will find that the Union and its agent Domingo, Rivera Rosado by the acts detailed below violated Section 8(b)(1)(A) of the Act, noting in particular, Teamsters Local 783, International Brotherhood, of Team- sters, Chauffeurs, Warehousemen and Helpers of America (Coca-Cola Bottling Company of Louisville), 160 NLRB 1776. The standard promulgated by the Board therein was that-a union-was guilty of violating Section 8(bX 1)(A) of the Act when it knew of the acts of misconduct and violence which took place; "but took no steps reasonably calculated effectively to stop such-acts" (emphasis supplied). Under this standard, on the ,evidence before me there is no alternative but to find that the Union violated the Act as charged. On the record before me, I make the following: FINDINGS OF FACr 1. THE BUSINESS OF RESPONDENT AND THE LABOR ORGANIZATION INVOLVED 701 National Packing Company, a Puerto Rico corporation, has its plant and office in Playa de Ponce, Puerto Rico, where it processes and cans tunafish . During the past year the Company purchased and received tunafish and materials valued in excess of $50,000 from points outside of Puerto Rico and sold and shipped over $50,000 of its products to points outside Puerto Rico. The parties agree and I find that the Company is engaged in commerce within the meaning of Section 2(6)'and ('l) of the Act. - The parties agree and I find that Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. H. THE UNFAIR LABOR PRACTICES A. Background and Undisputed Facts The Company is a subsidiary of Van Camp and processes and packs tunafish at the Ponce plant where normally 850 people are daily employed in its operation. There is a four- lane divided highway in front of the plant. A parking lot adjacent to and on the side of- the plant is enclosed by a fence., Beyond the fence is a vacant lot and the four-lane highway curves around the lot in about an 80-degree turn There is a crossover strip in the divided highway in front of the plant but further away from Ponce as far as the entrance to the parking lot is concerned, so that ,people leaving the parking lot must turn right and then make a U- turn to the left on the crossover strip in order to drive back towards Ponce. During the period of the strike a- large tent , capable of, containing 75 to 100 people was set up by Respondent Union in the vacant lot next to the parking lot some 60 feet or more distant from the parking lot fence . The tent contained cooking facilities and the strikers ate there or stayed near the tent and sometimes slept there . A sidewalk runs in front of the lot, the parking lot, an4 the plant. The divided highway'smedian strip is grassy. As the parties stipulated, at the time of the , strike Domingo Rivera Rosado was the president of the Respondent Union, Francisco Alcala was the secretary- treasurer, and Antima Echevarria, Gladys Pacheco, and Jose Roman Hernandez were all members of the board of directors of Respondent Union, and all five are the officials named in the complaint and for whose actions Respondent Union is liable. There has been prior litigation between the , parties including injunctive proceedings by the Regional office and an 8(bx4)(iXii)(C) case in which Respondent Union was held by the Trial Examiner to have violated that section of the Act. The Board has not yet ruled on this case. A final injunction was not granted and that case is on appeal to the U.S. Court of Appeals for the First Circuit. B. The Violations 1. On October 31, when General Manager Donald 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Baldwin approached the area , of the plant he found employees milling around outside and not entering the plant. He saw Francisco Alcala and , knowing him from prior dealings as a union- official, approached Alcala and asked what was the problem. Alcala replied that no one was going through the gate until there was an election. Later Baldwin approached Alcala stating ,that the entire day's catch of fish was ready to be cleaned and if it `was not cleaned it would be, unfit for human consumption and asked Alcala to allow the people to come in to work. Alcala replied that no one was goin g to`enter that plant until there was an election. Baldwin also saw Rivera driving a car to which a Ioadspeaking system was attached and Antima Echevarria was speaking over the system. Employee Sylvia Ortiz testified that when she arrived at the plant, gate around 6:35 that morning, she heard Antima Echevarria in the car driven by Rivera, talking to the crowd of people exhorting them not to go in to work in order to avoid violence. She also noticed signs in the area which stated "We want justice," We want elections," "We do not want the SIU." No one entered the plant that day, except Baldwin and possibly some other supervisory officials. 2. Gregorio Sanchez, an employee of the Company for 10' years, was outside of an establishment called El Fanguitoin the Barrio where he lives between 6-and 6:15 in the evening of November 4, with a group of his friends. Alcalacame by and called him over and told Sanchez that if be crossed the picket line, he would be the first toy be knocked down' and that Alcala would run him over with his car if Sanchez wenttowork and Alcala'lost his job.' 3. On November 9, some of the employees decided to see if they 'could `enter the 'plant and gathered near the townhall,' where they got in several cars and proceeded toward the plant entrance. Sylvia Ortiz was in a jeep which was the lead car. As the jeep, approached the' plant it was ringed by a group'of 75 t6'100strikers. Mrs. Ortiz testified that there were a lot of employees at the gate who stopped the jeep and were hitting the jeep with sticks and stones and rocking the jeep from side to side almost overturning it. The jeep incident was also -witnessed by Company General, manager Donald Baldwin and Production Manag- er Juan de Dios Alverado. Baldwin testified that he saw a woman lie, down in front of the jeep and saw a crowd of about' 100 people surrounding the jeep and hitting it with stinks which were 2 by 2's about 4 feet long.'In the group around the car he recognized Gladys Pacheco, Antima Echevarria, and Jose Roman Hernandez. ' - Alvarado testified that he saw the jeep full of employees with the strikers surrounding them rocking the jeep from side to side. He stated there were70to80people surrounding the jeep and that Gladys Pacheco was using a 2-by 2-inch stick approximately"4 feet, long to hit the jeep„ These sticks had picket signs attached to them. He also saw Alcala in the group surrounding the jeep: Finally the police'dispersed the striking employees and the jeep left without the employees coming into the plant. 4.- Pablo 'Torres, a maintenance supervisor with the Company, was at work on November 19. At about 1 p.m., he was standing under, the, roof in the parking lot near the small gate to the plant, when he saw six individuals running from the direction of the tent toward the parking lot. As they ran the individuals picked up stones. He, recognized three of them as people who had been employed at the plant. The six individuals threw rocks, some about the size, of,his fist,, into the parking lot. Several hit a car on the fly, and others hit on the parking lot area and-bounced into cars. 5.^ Genera l Manager Baldwin testified that he left the plant early on November 19 and, after making the U-turn to proceed back toward Ponce, saw eight or ten piles of rocks laid out along the highway up as far as the curve., Division Production Manager James W. Bellm testified that shortly before 4 o'clock he was near the parking lot and saw three or -four strikers leave the area of the tent and approach the parking lot fence opposite- the small gate, which leads from the plant,"tothe parking, lot. As the employees started to come out of the plant to the parking, lot about 4 p.m. this group of strikers ran back to the tent. Then as the workers started to get into their cars.and leave the plant, 100 to 125 strikers left the area of the tent and proceeded on toward the roadway, and into the median strip. He observed, as the cars left the parking lot and made the, V-turn, and started back towards Ponce, that rocks were being thrown at the cars. Sylvia Ortiz w as working that afternoon and left in her husband's car. She testified as they, made the U-turn and drove back on the road toward Ponce, their car came under a bait of'rocks. Pablo Torres,- Jesus Ramirex, and Quintin Lopez also testified as'to the rock barrage as they drove their cars from the plant with ' Lopez'_ windshield, being broken by a rock thrown by a striker whom he recognized. 6. After he had let the employees out of his car, Quintin Lopez drove to Jesus Ramirez' home and discussed with him going to the police station and reporting the incident since he recognized the striker who had broken his windshield. Ramirezzagreed to go with Lopez and they went to the Molina Street police station. When they got there Lopez went into the station and filed a complaint, and Ramirezremained outs_ ide. Rivera ' and Alcala were in a , group outside the police station and came over to Ramirez and asked what happened to Lopez' car. He showed' them the' broken windshield. Alcala said they should have broken the windshield and done something worse because Lopez was an "s.o.b." Rivera asked Ramirez how many people went in to work and then told, Ramirez how many actually - did. Rivera said that the war was not over yet, that they had 300 employees throwing rocks that day and tomorrow there' would be'400. Ramirez and Lopez testified that there- was a group of people with Rivera and Alcala whom' they'recognized as; strikers. When Lopez came ' out of the police station, Ramirez told him to unlock the,car and get going. The two got in the car immediately and left. ' Ramirez `testified that he was nervous in that crowd. 7. On-November 20 General Manager Baldwin and" Division Production Manager Bellm left the plant prior to the 'time the employees were to leave and walked out into the median strip. They testified that there were 80 to 100 strikers in the tent area and that as the employees started to leave the plant these strikers left the -tent area =and came down to the road, most of them into, the median strip. UNION DE EMPLEADOS 703 Policemen were lined up on both sides of the one-way lane directly in front of the plant and most of the 80 to 100 strikers moved into the median strip. As the cars made the U-turn and proceeded back towards Ponce both Bellm and Baldwin saw rocks being thrown from the crowd of strikers towards the cars containing employees and supervisors. C. Analysis From the credited uncontroverted testimony provided by the General Counsel it is clear that the president and secretary-treasurer of Respondent Union as well as the three members of the board of directors named in the complaint were present and indeed participated in some of the activities set forth above. Rivera was present and made statements in incidents one and six; Alcala was present and/or made statements in incidents one, two, three, and six; and the members of the board of directors were present at incident three. Incidents four, five, and seven took place immediately in front of or to the side of the area established by Respondent Union as its strike headquarters, with the participants in a crowd that came from the strike headquarters. These incidents were clearly visible to those in charge of the strike and indeed the statements of Rivera and Alcala in incident six establish that the incidents were known and were approved of by responsible union officials. Therefore, applying the Board's test laid down in the Coca-Cola Bottling case, supra it is clear from the incidents described above that Respondent Union knew of the threats and the acts of misconduct and violence which took place and took no steps reasonably calculated effectively to stop such. Therefore, I find that Respondent Union and its agent Domingo Rivera Rosado, in the incidents where he was involved or for which as a union oficial he bore responsibility, have, by each of the seven incidents set forth above, engaged in conduct violative of Section 8(b)(1XA) of the Act. It is also clear that it was Respondent Union's policy to attempt to prevent employees from entering the plant to work and that the incidents described above were carried out by strikers under the direction and control of Respondent Union to enforce that policy. M. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent Union's commission of the unfair labor practices set forth in section II, above , violating Section 8(bXIXA) of the Act and occurring in connection with the Charging Party's business operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. IV. THE REMEDY Having found that Respondent Union and Respondent 2 In the event no exceptions are filed as provided by Section 102.445 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. Union's agent, Domingo Rivera Rosado, engaged in conduct violative of the Act, I shall recommend that the Respondent Union together with its agent cease and desist from the violative acts found and post a proper notice, informing all members and employees that Respondent Union and its agent will not engage in such violative conduct. On the basis of the foregoing facts and the entire record I make the following: CONCLUSIONS OP LAW 1. National Packing Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent Union and its agent, Domingo Rivera Rosado, by engaging in threats of physical violence and by engaging in actual violence against and in the presence of company employees because of the efforts of some employees to go to work or for going to work during' Respondent Union's strike, have thereby engaged in unfair labor practices affecting commerce within the meaning of Sections 8(b)(1)(A) and 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 2 ORDER Respondent, Union de Empleados de la Industria del Enlatado de Pescado y Ramas Anexas de Puerto Rico, and its agent, Domingo Rivera Rosado, its officers, agents, and members of the board of directors, shall: 1. Cease and desist from: (a) Restraining or coercing employees of National Packing Company of Ponce, Puerto Rico, in the exercise of their rights guaranteed in Section 7 of the Act, including the right to refrain from joining or assisting Union de Empleados de la Industria del Enlatado de Pescado y Ramas Anexas de Puerto Rico, by threatening or inflicting bodily harm or damage to any employee or member of his family or to any employee's property. (b) Blocking ingress to or egress from the plant either by blocking the gate or inflicting damage or throwing rocks at vehicles or employees leaving the Company's premises. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Post at its offices and meeting halls copies of the attached notice marked "Appendix."3 Copies of said notice, written in both English and Spanish on forms provided by the Regional Director for Region 24, after- being duly signed by Domingo Rivera Rosado, Francisco Alcala, Antima Echevarria, Gladys Pacheco, and Jose Roman Hernandez, who as authorized representatives of Respondent engaged in the violative acts noted above, shall 3 In the event that the Board's Order is enforced by a Judgment of a' United States Court of Appeals, the words in the notice reading "POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD." DECISIONS OF NATIONAL LABOR RELATIONS BOARD be posted by Respondent Union immediately upon receipt thereof, and be maintained by Respondent union for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to its members are customarily posted. Reasonable steps shall be taken by Respondent Union to 'insure that said notices are not altered, defaced, or covered by any other material. (b) Promptly after receipt of unsigned copies of said notices, writtm in both English and Spanish, from the Regional Director, return to him copies signed by the same five individuals noted above as authorized ' representatives of Respondent for posting at National .Packing Company, if National Packing Company is willing, at all places where notices to the, Company's employees are customaril posted. Proper, steps should be taken to insure , that said- notices, if posted, are not altered, defaced, or covered by any other material No the Regional Director for Region 24, in writing, within ° days from the date of the receipt of this Decision, what steps the Respondent Union has taken to comply herewith.4 4 In the event that this rmmntended order is adopted by the Board after exceptions have been filed, this provision shall be mod ed to read: "Notify the Regional Director for Dion 24, in writing, within 20 days from the date of this order, what steps the Respondent has taken to comply herewith:'