Union De Tronquistas

UNION DE TRONQUISTAS 591 Union de Tronquistas de Puerto Rico, Local 901 affiliada a la International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America and Associated Federal Hotels Interna- tional, Inc. d/b/a Hotel La Concha. Case 24-CB-750 October 7, 1971 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS After transfer of the case to the Board, Respondent moved to exclude from the record General Counsel's letter to the Trial Examiner requesting that administrative notice be taken of previous cases involving Respondent The motion asserts that the General Counsel's letter was not served prior to the issuance of the Trial Examiner's Decision and, accordingly, argues that it was prejudiced by the Trial Examiner's taking administrative notice as requested We find no merit in this motion Matters of administrative notice need not be established in the record, and no prejudice has resulted from the delay in service of the General Counsel's letter, since the matter contained therein was fully discussed in the Trial Examiner's Decision and therefore could have been and, in fact, was challenged in Respondent's exceptions TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE On June 15, 1971, Trial Examiner Herzel H. E. Plaine issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices 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 a supporting brief. The General Counsel filed a brief in support of the Decision. 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 briefs, 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 adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the Respondent, Union de Tronquistas de Puerto Rico, Local 901, Affiliada a la International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, agents, and repre- sentatives, shall take the action set forth in the Trial Examiner's recommended Order. i The Respondent has excepted to certain credibility findings made by the Trial Examiner It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wa/I Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) We have carefully examined the record and find no basis for reversing his findings The Respondent's allegations of bias and prejudice on the part of the Trial Examiner are not supported by the record and are hereby rejected HERZEL H. E. PLAINE, Trial Examiner: The Respondent (Union) is accused of violating Section 8(b)(1)(A) of the National Labor Relations Act (the Act) by engaging in violence against employees and others on the hotel property of the Charging Party (Hotel La Concha or hotel), inflicting physical injuries and property damage in order to compel nonstriking employees to support a strike of the hotel employees November 30 to December 2, 1970. The complaint was issued December 29, 1970, on a charge by the hotel filed December 1, 1970. The evidence left no question that the violence occurred on the night of November 30 and early morning December 1, 1970, that nonstriking employees were injured and supervisory employees threatened with injury, that hotel property was damaged, that hotel guests were hurt or put in fear of injury, and that striking hotel employees armed with sticks, clubs, and metal pipes took part in invading the hotel and causing the injuries and damage. The controverted issue was whether the Union, through its agents, participated in the violence and was responsible for it. The case was tried March 15-18, 1971, in Hato Rey, Puerto Rico. Counsel for the hotel has filed a memorandum dealing with the facts, law, and remedy, and counsel for the General Counsel has filed a memorandum dealing only with remedy. Upon the entire record of the case, including my observation of the witnesses, and after due consideration of the memoranda of counsel, I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent Union is, as the parties concede, a labor organization within the meaning of the Act. The Charging Party is a Puerto Rican corporation that operates Hotel La Concha in Santurce, Puerto Rico. During the calendar year ending December 31, 1969, the hotel provided services to the public valued in excess of $500,000. In the same period, the hotel purchased goods, that originated from places outside Puerto Rico, valued in excess of $100,000. Less than 25 percent of the hotel's guests reside at the hotel for a month or more. Hotel La Concha is, as the parties admit, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 193 NLRB No. 90 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE UNFAIR LABOR PRACTICES A Representation and the Contract CP-11). The schedule effective Monday November 30, 1970, provided that employee Rios would retain her Sundays and Mondays off and that employee Diaz would work those days and have off instead Fridays and Saturdays (exh. CP-12). Both affected employees, Matos who had been reassigned and Diaz who had been rescheduled, were unhappy with the changes and com- plained to their union delegates or stewards. Chief of the day shift delegates, Felix Sanchez, protested to the housekeeper, particularly the change of the third uniform attendant, employee Matos, to linen girl. Sanchez argued that even if two girls worked 11 hours a day, with the 2 days off for each girl a supervisor would also have to work and fill in the hours not covered by the two girls. Sanchez regarded such performance of unit work by a supervisor as illegal under the contract. The situation became acute Monday morning November 30 when, according to the hotel personnel manager, Ugo Benitez Robles (Benitez), uniform attendant Diaz failed to show up for work reporting in sick, and uniform attendant Rios would not come in for overtime work in place of Diaz. General Delegate Sanchez came to see Personnel Manager Benitez, about 8:30 a.m., to complain, said Sanchez, that a supervisor was doing a uniform attendant's work Sanchez did more than complain, testified Benitez. According to Personnel Manager Benitez , General Delegate Sanchez said that he had already pulled the maids off the job and unless Benitez restored employee Matos to her job as room attendant, he would pull the rest of the employees out of the hotel. Sanchez told Benitez that he had 10 minutes in which to act. Based upon demeanor and upon circumstances that discredit Sanchez (cumulatively discussed hereinafter), I credit the testimony of Benitez. General Delegate Sanchez had already alerted Union Business Agent Mike Cruz of the problem in the previous week, as Cruz testified, but had not told Cruz that the housekeeper felt that the matter would be settled, as Cruz had further testified. On the contrary, as Sanchez testified, the housekeeper told Sanchez that the reduction in room attendant jobs from three to two had been ordered by the hotel's general manager, Mr. Vernon Daniel. Sanchez and the Union were well aware that the decision was not going to be reversed on any lower supervisory level. Reverting to the ultimatum on the morning of November 30, Personnel Manager Benitez and General Delegate Sanchez talked briefly, during which time Benitez received confirmation that the maids were out of the hotel. Sanchez then said time was up, and he was going to pull out the rest of the employees. He said he was acting under instructions from Union Business Agent Cruz and Benitez suggested that they call Cruz. Cruz was called and told Benitez that the employees in the housekeeping department were disturbed about abuse and discrimination against them, and that Benitez had 10 minutes more to put the girl, Matos, back into her original classification; if not, the rest of the employees would be pulled out of the hotel Cruz also talked to Sanchez. As a result Sanchez told Benitez he was sorry but he had to pull the employees out, as a show of strength. Personnel Manager Benitez called in Rogeho Oruna, the hotel's resident manager and comptroller, who, according The hotel has about 400 employees. They are represented in collective bargaining by the Union. Included in the Union's representation is a group of about 36 croupiers, who work in the hotel's gambling casino but who comprise a unit separate from the other employees. The current collective-bargaining contract (exh. CP-3) has a three-step grievance procedure under which the stewards and chief stewards (called delegates and general delegates in the complaint and testimony), and officers and agents of the Union designated by the Union, represent the Union on behalf of the employees Starting with step two (discussion between chief steward or general delegate and hotel personnel manager) the grievance must be reduced to writing. Grievances concerning pay, discharge, or discipli- nary suspension, not adjusted satisfactorily, may be submitted to arbitration by either the Union or the hotel. The contract further provides that the Union will not call or sanction a strike, slowdown, or work stoppage during the term of the contract. If such a strike, slowdown, or work stoppage not called or sanctioned directly or indirectly by the Union should occur, upon the hotel's request the Union is obligated to (a) publicly disavow the action within 48 hours of the request, (b) advise the hotel in writing that the action was not called or sanctioned by the Union, and (c) post notices on the union bulletin boards advising employees it disapproves such action and instructing them to resume normal work operations immediately. Employees participating in a strike, slowdown, or work stoppage may be discharged without recourse to the grievance procedure or arbitration and regardless of whether the Union has disavowed the action of the employees. There was evidence, supplied in cross-examination of Miguel (Mike) Cruz, chief among the Union's business agents in representing Hotel La Concha employees, that he and the Union had not made a practice of following the grievance procedures, as written in the contract, in solving grievances . Indeed, he conceded that only 4 or 5 months prior to the strike in this case, in the summer of 1970, croupiers and other employees had struck over a grievance originating with croupiers, that he had participated in the negotiations in which the hotel had insisted on arbitration, but that the matter had been resolved without going to arbitration. B. The Strike and its Sanction by the Union On or about Friday, November 27, 1970, a dispute arose in the housekeeping department of the hotel In an economy move, according to management witnesses, one of three uniform attendants, Marie (or Herminia) Matos, had been made a linen girl, a job that paid less, reducing the number of uniform attendants to two The change also entailed a schedule change for the remaining two uniform attendants, Ramonita Rios and Antonia Diaz, particularly adjusting their days off, since hitherto employees Rios and Diaz both had Sundays and Mondays off while employee Matos had worked those days and had Fridays and Saturdays off (see schedule effective March 24, 1970, exh. UNION DE TRONQUISTAS to Union General Delegate Sanchez, offered to move employee Matos back temporarily as a uniform attendant until the time schedule of the other two attendants could be resolved. Sanchez refused. He would not accede to the reduction to two uniform attendants, he said Resident Manager Oruna called Union Business Agent Cruz. Cruz told him, as Cruz testified on direct examina- tion, that the union membership was disgusted with accumulated problems and if Oruna wanted to avoid trouble he should put the lady (employee Matos) back in her former job and then they would talk about the case. Cruz admitted, on cross-examination, telling Oruna that if employee Matos was not transferred back to her former job the employees would strike Oruna asked, why not go to arbitration? Cruz replied (his testimony) it was not possible unless she was first restored to her former job, because otherwise supervisors would be doing the job of a union member. General Delegate Sanchez said he left managers Oruna and Benitez talking on the telephone to Union Business Agent Cruz. He testified that the maids were already outside the hotel, and that everybody walked out, and he walked out with them By about 9:30 a.m all of the employees, other than supervisors, had walked out including the union delegates of the various departments and the general delegates (the stewards and chief stewards) Later in the day and evening they were joined by employees and delegates of the night shift. Initially the employees and delegates gathered in groups in front of the hotel and in the parking area, and thereafter formed a picket line and carried signs, variously in English and Spanish, stating (among other things) "Teamsters Union Local 901 On Strike" and "Hotel La Concha Violates The Contract " Some of the signs were photographed being carried on the picket line by the local newspaper El Mundo (exh. CP-6A and -6B) and published in the December 2 edition of the newspaper (exh CP-12). Prominent among the employees shown in the photographs is the union steward or delegate of the engineering department, Israel Guzman The facts respecting the union signs and who were carrying them, and the presence and participation of the hotel employees and union leadership on or at the picket lines, including not only the union delegates such as Sanchez, Nazario Cordero (the nighttime general delegate), Hector Morales (his assistant), and Guzman, but also the union business agents Ciuz and Eliseo de Jesus (both directly in charge of hotel relations) and Jose Cadiz, were clearly established by testimony of Personnel Manager Benitez and Assistant Manager Raymond Tirado. Both managers were constantly observ- ing and in touch with the picket lines, even carrying telephone messages from relatives and others to partici- pants. Their testimony was supported by admissions of the i Sanchez claimed he told some of the employees they might be fired by the employer for engaging in an illegal strike, but Cruz made no such claim for himself 2 De Jesus proved to be an evasive witness, even to the extent of denying, initially, his status, acknowledged by Cruz, as Cruz's union coworker in representing the Hotel La Concha employees in negotiation and administering the collective-bargaining contract initially de Jesus denied having any direct relationship with the employees of Hotel La Concha, saying he had only an indirect one through employees of a nearby 593 union representatives. For example, General Delegate Sanchez admitted he was on the line several times during the day. Union Business Agent Cruz admitted he was on the picket line whenever he was not in meetings with management during the day and night. Sanchez contribut- ed to the identification of Delegate Guzman carrying one of the picket signs. Further Sanchez remembered seeing the signs being prepared by the employees but, apparently attempting to help out the myth advanced at trial by his colleagues of the Union that this was a "wildcat" strike unabeted by the union representatives, testified incredibly that he didn't even read the signs let alone remember what they said. Cruz conceded that there were picket signs reading "Teamster's Strike." He said he ordered them thrown away but admitted they remained. Sanchez and Union Business Agent Cruz also made claim at trial that they remonstrated with the employees for engaging in an illegal strike but were ignored. The claim was unsupported by any evidence other than the mere assertions, and was contradicted by the actions of Cruz and Sanchez before and during the strike. Sanchez also testified that he made no move to return to his job before the strike ended on December 2, that he was not impeded from returning by anyone in management, and that he saw no incident of an employee or employees being impeded by anyone of management from returning to work. Neither Cruz nor he, said Sanchez, told any of the striking employees that they might lose their union membership or be otherwise disciplined by the Union for engaging in an illegal strike i Union Business Agent Cruz had arrived at the hotel and picket line sometime in the morning, after the walkout was complete. His coworker, Union Business Agent de Jesus,2 arrived about noon, and Union Business Agent Cadiz (who worked principally with bottling employees) arrived in the afternoon. Starting about noon of November 30 and ending about midnight, the union and management representatives met in a series of sessions in the hotel, seeking a solution to end the strike and the problem that engendered it. Union Business Agent Cruz was accompanied variously by others of the union business agents (de Jesus and Cadiz) and delegates (Sanchez, Nazario Cordero, Morales, etc.) Management representatives comprised variously General Manager Vernon Daniel, Resident Manager Oruna, Personnel Manager Benitez, Assistant Manager Tirado, and the hotel's lawyer Randall. As Union Business Agent Cruz described the negotiations, the Union recognized the right of the hotel to make personnel changes for economic reasoi s, including temporary layoffs, but short of elimina- tion of jobs; both sides, he said, agreed that the issue ought to be arbitrated; but the Union insisted as a prior condition that employee Matos be put back into her former uniform restaurant, and denied having signed the contract ; under prodding of cross-examination he changed his testimony to concede that he participated in negotiation of the hotel contract and signed it along with Cruz, on behalf of the Union (exh CP-3), that he had been in many of the union disputes with the hotel, and that he and Cruz were the Union's business agents working together in representing hotel and restaurant employees under about 16 contracts There were other attempted evasions in his testimony some of which are noted hereinafter 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD attendant job pending arbitration, and the hotel was equally insistent that she remain in her present linen girl job pending the arbitration Assistant Manager Tirado contradicted Union Business Agent Cruz's claim that the Union expressed willingness, in these meetings on November 30, to go to arbitration. Moreover, he testified, without contradiction by Cruz or his colleagues who attended the meetings, that management, calling attention to the contract no-strike arbitration provisions, proposed that at least while the parties were disputing the job reduction matter the Union bring the employees back to work in the hotel. To this suggestion, said Tirado, the union representatives replied, no, the people will stay out and we will continue to discuss the problem. And so, said Tirado, discussion continued, and the employees remained out. At the end of the meetings that night, with no resolution of the strike or the underlying grievance, the parties agreed to meet further the next day, December 1. In the course of the November 30 discussions, Lawyer Randall on behalf of the hotel prepared and caused to be hand delivered in the afternoon of November 30 a letter addressed to Luis Pagan, the secretary-treasurer and highest ranking officer of the Union The letter (exh CP-1) asked the Union, in accordance with the contract terms (described in heading A above), to publicly disavow the strike, to advise the hotel that the work stoppage and strike had not been called or sanctioned by the Union, and to post notices advising the employees that the Union disapproved the walkout and that the employees were to return to work immediately The letter noted the hotel's willingness to submit the grievance to arbitration, that the hotel was open, and that all employees should report to work immediately. Copies of the letter were also given to Union Business Agents Cruz and de Jesus and to General Delegate Sanchez and, as Resident Manager Oruna testified, the subject of the letter was discussed at one of the late afternoon or evening meetings In response, according to Oruna, Cruz said it was a union strike and unless the hotel put the uniform attendant back in her job the employees would be out until Christmas. Oruna gave an affidavit to this effect, attached to the hotel's motion filed the next day December 1, in the United States District Court, for a temporary restraining order against the Union (exh. CP-8) under a complaint to enjoin the Union from striking the hotel in violation of its no strike agreement. The Union's Secretary-Treasurer Luis Pagan, who came into the continued management-union meetings commenc- ing December 1, acknowledged in his testimony that by early morning December 1 he had seen the hotel's November 30 letter asking Union disavowal of the strike, and never replied to the letter He also acknowledged that he was personally served with a copy of the hotel's motion for a temporary restraining order and its attached affidavit e General Delegate Sanchez thought the meeting started about 10 30 p in or I I p in Assistant Delegate Morales thought it was half over when he got there at I I p in Union Business Agent Cruz worked his estimate down from 12 a in (December l) to 11 30 p in (November 30) to I I p in Union Business Agent de Jesus thought it started at I I p in , and Union Business Agent Cadiz thought it started at 10 30 p in or 10 40 p in As to when the meeting ended Personnel Manager Benitez thought it was about midnight (12 a in December I), and Assistant Manager Tirado by Resident Manager Oruna (the sole attachment). Nevertheless, though contending at trial that the strike had been without union sanction or support, he admitted he never questioned Union Business Agent Cruz concerning Oruna's sworn statement, according to which Cruz clearly committed the Union to continue support of the strike. Pagan offered the rather lame and incredible excuse that he only read the motion and not the supporting affidavit. C. The Violence The Credited Facts The final meeting between management and union representatives on the night of November 30 started about 11 p.m. or earlier and ended about midnight or earlier.3 In the course of this meeting the tone and language adopted by the union representatives, particularly their chief spokesman Cruz, became more menacing than conciliatory. It appeared that earlier in the night about 20 of the croupiers came to the hotel prepared to work. The croupiers man the gaming tables of the hotel's casino and are members of the same Union as the hotel's service and maintenance employees, but comprise a separate unit for bargaining and have a separate contract, according to croupier Gonzalez Comacho. He said that the croupiers were met by their union delegate Raymond Ricardo Romero, who told them he had been instructed to tell the croupiers not to cross the picket line and to stay out of the hotel Of the 20 croupiers, 14 decided nevertheless to go to work, and at 8:30 p.m. they went into the casino. In the 11 p.m. meeting thereafter, between the hotel management and union representatives, according to Union Business Agent Cruz, he told General Manager Vernon Daniel that Daniel had better end the dispute and avoid having trouble on account of the "strike breakers" (Cruz's words), that some drunks and longhaired individu- als were going to try to go into the casino after them. Daniel asked, said Cruz, couldn't Cruz control this, and Cruz replied it was impossible for him to control 500 employees and 200 nonemployees; but, he suggested to Daniel, "why don't you close the casino for tonight?" Daniel refused, said Cruz. Significantly, Cruz further testified on cross-examination that before he went into the l l o'clock meeting where he warned Daniel to close the casino, he and the other union business agents and union delegates had been on the picket line; that when General Manager Daniel came out of the hotel to call him in for the meeting, he (Cruz) took all of the union representatives who were there to the meeting; that he left no one in charge even though he knew "outsiders" were there because, he said, he saw no need with 100 male employees among the picketers; and that he did not alert thought it was about 10 minutes to midnight The union witnesses put it after midnight closer to 12 30 a in (Cadiz) or 12 50 a in (Sanchez) December I, but there was an element of fabrication in at least one of the estimates Thus, Union Business Agent de Jesus testified on direct that the meeting ended at I a in December I, but admitted on cross-examination that his affidavit given to the Board a few days after the event correctly reflected his volunteered recollection then that the meeting broke up at 1150 p in , November 30 (exh GC-6) UNION DE TRONQUISTAS 595 the police (who were in the area) for trouble by "outsiders" or anyone else. Assistant Manager Tirado confirmed Union Business Agent Cruz's admitted threat that if the hotel did not tell the croupiers who had broken the picket line to leave the casino, some of "the people" would come in and take them out. The meeting got no further than to agree to meet again the next day The union representatives left in a group. Assistant Manager Tirado, who said that building security was one of his responsibilities, testified that he followed them out of the meeting in the manager's office and through the hotel lobby to make sure they left the building, and observed them leave through the garage entrance to the lobby. He then walked out the main entrance to the lobby and further observed the employees on the sidewalk picket line. He came back into the lobby and wound up in front of the Solimar (a cocktail lounge with a glass door) roughly between the front desk and the casino entrance (diagram, exh. GC-2), where he talked briefly with Manager Daniel and Resident Manager Oruna Personnel Manager Benitez also followed the union delegation out of the meeting in the manager's office, but then went to the hotel basement to check on the relief at the timekeeper's office, returned to the manager's office to find it closed, proceeded to the lobby, and ended up at the front desk. At the moment, he could not see, and was not aware of, Tirado standing near the Solimar door. At or about that time, which was after midnight of November 30 in the early morning of December 1, a group of people came bursting into the hotel lobby armed with metal pipes, sticks, and clubs, shouting "to the casino" and heading for the casino door There were in fact two groups, said Personnel Manager Benitez, one coming from the garage entrance to the lobby, and the other group running alongside the elevators, coming from the beach side, both converging toward the casino Among the participants, Benitez and Tirado identified Union Business Agents Cruz, de Jesus, and Cadiz, Union Delegates (and hotel employ- ees) Sanchez, Morales, and Nazario Cordero, and employee Manuel Torres Cordova (Torres) and Torres' brother. The latter carried a long piece of metal pipe, 4 or more feet long and about 2 inches in diameter, and Union Delegate Morales was among those armed with a smaller pipe. The casino security officer, Jose David Diaz Rodriguez (Diaz), who testified that he was standing at the hotel cashier's window in the lobby, raced to the casino door when he saw the rush for the casino, in a vain attempt to stop the rush. Diaz got in front of the intruders and had a temporary hold on the long pipe (also called a pole by the witnesses) until he was punched, kicked, and knocked down and out by the intruders. He later required hospital attention. Meantime Assistant Manager Tirado, who had been in front of the Solimar, jumped into the fray, trying to help Diaz wrest the long pipe from the several intruders who now had hold of it, including Cruz, de Jesus, Cadiz, and Torres. Tirado was followed by Personnel Manager Benitez who ran over from the front desk. Benitez grabbed onto the pipe to help Tirado and Diaz and yelled to Tirado to get away and call in the police (who apparently were somewhere outside the hotel). Diaz was knocked out and Benitez brushed aside as a number of the intruders ran into the casino. Personnel Manager Benitez had stopped to help security guard Diaz, and Assistant Manager Tirado had run to fetch the police, so the thread of the narrative was picked up by witnesses inside the casino. Three of the croupiers-Gonzalez Comacho, Gonzalez Spignolio, and Cosme Olivo-and the assistant manager of the casino-Ismael Nun-testified. The casino was full with patrons, and the gambling in progress at the gaming tables, when the casino was thrown into an uproar of shouting, violence, and confusion, as a group of the intruders from the lobby burst through the casino door and the inner corridor and ran around the circular arrangement of the gaming tables with pipes and sticks, striking at croupiers, hitting some, and some of the patrons unable to dodge the blows, knocking over tables and chairs and strewing chips all over the place. At the same time rocks were thrown from outside through the casino windows showering glass and rocks inside. In general the employees and guests of the casino were put in terror of the physical injury inflicted on some. Three of the croupiers were injured by the attackers, according to Gonzalez Comacho and others. Croupier Suarez was most seriously injured when struck on the back and spine. He had to be carried out and required hospitalization. Croupier Zayas was cut and bleeding from a head wound inflicted by one of the intruders, identified as employee Pantojas, a dishwasher, who used a closed jackknife to reinforce the blow. Employee Pantojas also succeeded in knocking down croupier Gonzalez Spignolio with a blow on the back; but in turn Pantojas was himself stretched out on the casino floor by a retaliatory blow, was relieved of his jackknife, and later removed from the floor by the police and arrested Croupier Gonzalez Comacho saw at least one of the women patrons of the casino hurt, when hit on the leg by a blow aimed at a croupier who evaded it. However Comacho and the others were convinced (and so testified) from the nature of the attack and the yelling and cursing directed at the croupiers, that they and not the casino's patrons were the object of attack. The violence was brought to an abrupt halt when Assistant Casino Manager Nun ran to the cashier's desk of the casino for his pistol and fired two shots into the carpet of the casino. At that moment Assistant General Delegate Hector Morales (sometimes called Moralito), was running with a lead pipe in his hand toward croupier Gonzalez Comacho, according to croupier Gonzalez Spignolio and Nun; and Nun's two shots into the carpet in front of Morales "froze" him in his tracks. At Nun's command Morales dropped the pipe. Most of the patrons and employees dove for the floor at the sound of the shots. As the moment of extreme tension caused by the shooting lifted, the intruders and patrons ran for exit and out the casino door. Assistant General Delegate Morales was among them. Assistant Manager Tirado, who had found some police and was on his way back to the casino, identified Morales and one of the hotel's waiters, de Jesus Tapia, among the persons emerging from the casino. 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (Tirado testified also that he had seen Tapia and Morales earlier in the night outside on the picket line )4 The whole incident happened rapidly. Assistant Casino Manager Nun estimated that the episode inside the casino lasted about 90 seconds, and other witnesses estimated that the intrusion into the hotel and casino took about 5 minutes. Assistant Manager Tirado and Personnel Manager Benitez came into the casino to find it a shambles. According to their testimony, guests were on the floor or under tables, some hurt, some crying; several croupiers were hurt; one of the intruders, employee Pantojas, was hurt and stretched out on the floor; tables, chairs, and stools were overturned and some broken; gambling chips having the value of money were strewn all over the place; and broken glass was everywhere. There was also some damage in the lobby. That day and the next, the hotel experienced almost 50 premature checkouts of its guests. The Discredited Testimony In finding the foregoing facts concerning the violence, I have largely discarded as incredible the testimony of those of the union leaders directly involved in the violence-Union Business Agents Cruz, de Jesus, and Cadiz, and Union Delegates Sanchez and Morales. The burden of their story was that as they left the meeting of union and management held in the hotel manager's office on the night of November 30-December 1, and proceeded to the hotel lobby, they were confronted by a mob, coming in the lobby, that headed for the casino. Union Business Agent Cruz estimated there were 200 people in the mob, more nonemployees or "outsiders" than employees, he said. When confronted with his affidavit given shortly after the event (exh. GC-3) it appeared that he had earlier described it as a mob of about 50 employees and 1 alleged nonemployee from whom, Cruz claimed, he took away a piece of pipe. Cruz then changed his testimony at trial to 50 people, but insisted that only the nonemployee carried a pipe or stick. His colleague Union Business Agent de Jesus testified on direct that he saw no sticks or pipes. When confronted with his affidavit (exh. GC-6), it appeared that his description, shortly after the event, was a crowd of 40 employees with pipes and sticks. Whereupon de Jesus changed his testimony to say, yes, he saw the employees carrying sticks and pipes but not until he got outside the hotel and looked back into the lobby Union Business Agent Cadiz and Union Delegate Sanchez estimated the group comprised 40 to 60 people and Union Delegate Morales thought the number was 60 to 70. Cadiz and Sanchez saw many with sticks and clubs, they said. Sanchez, a longtime employee of Personnel Manager Benitez testified that following the brief ineffectual struggle by security guard Diaz, Tirado, and himself in front of the casino door to block entrance of Union Business Agent Cruz and others of the union leadership, Cruz and the others went into the casino Benitez assisted the injured Diaz, he said, and coming back to the casino entrance saw Union Business Agent Cadiz emerge and go into the Solimar, and commence to overturn some tables Benitez followed him A member of management inside the Solimar, named Cordero, restrained Cadiz and attempted to detain him, but Benitez intervened to prevent more damage and let Cadiz go Hearing shots in the casino, Benitez said he ran back to the casino entrance to see Cruz, Nazario Cordero and others of the union the hotel, initially asserted the group was mainly nonem- ployees, then admitted he didn't know that to be true. He also admitted that there were 15 he knew were hotel employees but would not or could not name any of them. Morales, also a longtime employee, said he saw employees in the group carrying clubs and pipes but said he couldn't name any. Continuing with the account, it was the contention of Cruz, de Jesus, and Cadiz, that the invading group was a conglomeration of strangers, agitators, anti-American revolutionaries, hippies, and drunks (including perhaps some striking employees who had started drinking), that had been agitating trouble for the hotel, outside on or near the picket line, and were now inside the lobby to make trouble. Cruz said he called on the employees among them to get out of the lobby, and called on his colleagues to help get them out, and then personally charged at the stranger at the casino door who was carrying a big pipe and who was about to hit Personnel Manager Benitez and security guard Diaz with it. He wrested the pipe from the stranger and carried it outside the hotel, said Cruz, taking with him some 15 or 20 employees. On cross-examination Cruz embel- lished the story by saying Benitez helped him take the pipe away from the stranger and Benitez then gave the pipe to Cruz, who took it outside the hotel. The whole account by Cruz became ridiculous when it appeared that in his affidavit (exh. GC-3) given shortly after the events of November 30-December 1, Cruz sought to make clear that Bemtez was not present dunng the attack on secunty guard Diaz at the casino door but was in the manager's office with Managers Daniel and Oruna. Additionally, Cruz couldn't make up his mind whether he faced or had his back to the casino door and whether he succeeded or not in keeping out attackers when the attack occurred and he attempted the claimed rescue. He testified both ways, suggesting at one point that he faced the door and knew that he succeeded in keeping some people out of the casino but that others got past him and broke in. He then reversed himself saying he had his back to the door and didn't know whether he kept anyone from going in because he didn't see anyone going in. Of course, he said, he heard later that some persons did break in. Personnel Manager Bemtez had identified the carrier of the big pipe in the attack on the casino as Tones Cordova's brother, but Cruz claimed it was a stranger, a hippie type with a beard. Cadiz said the stranger was a tall colored man with no long hair, and Sanchez and Morales said he was a tall dark man with a beard. Cadiz added that Cruz took a second pipe from this individual, but was embarrassed to find that he had not mentioned the claimed fact in his affidavit given shortly after the event (exh. GC-4). Cruz and his four colleagues testified that each of them leadership coming out, followed by screaming hotel patrons The croupier witnesses, who had been inside the casino , while they knew some but not all of the union leadership, identified only Assistant General Delegate Morales among those taking part in the violence inside the casino However, this circumstance did not derogate from the accuracy of Benitez 's testimony, since the entrance to the casino inside its outer door is a corridor that is not visible to those inside the gaming area of the casino, and the total credible testimony indicated that there were more persons involved in invading the lobby and charging the casino door than engaged in the destructive action inside the casino UNION DE TRONQUISTAS succeeded separately in getting 15 or 20 employees to turn around and leave the hotel lobby. If true, that would have left none of the 40 to 60 persons who it was claimed came into the lobby to invade the casino, other than the hippie type stranger or however he was described Most signifi- cantly, each of the five union witnesses, while denying that he had set foot inside the casino door, and claiming that he was herding employees to the outdoors from the hotel lobby, could not account for seeing each other or what each other was doing while the casino was under attack. From these and other inconsistencies and failings in credibility, noted elsewhere, I am persuaded that the account of the happenings at and near the casino by Union Business Agent Cruz and his colleagues, and their disclaimer of participation in and responsibility for the violence aimed at the nonstriking employees of the casino, is a fabrication. D. Union Ratification of the Misconduct The Union's Secretary-Treasurer Luis Pagan, who as its chief official claimed superior authority to do or undo whatever the Union's business agents and delegates had done, made no appearance or intervention in the strike, notwithstanding the hotel's earlier request to him in writing (exh. CP-1), until the afternoon of the second day of the strike (December 1) when the union-management meetings resumed . He claimed he was interested in obtaining an earlier meeting that day but he made no attempt to personally communicate this interest to the hotel manage- ment, leaving it, he said, to Union Business Agent de Jesus. The meeting on December 1 was in the late afternoon, and Pagan picked up where his subordinate Cruz had left off the previous day, insisting there had to be an overall solution of the grievance before the employees would come back to work. At trial, Union Secretary-Treasurer Pagan admitted the strike was contrary to the Union's contract with the hotel. He contended it was a "wildcat" strike, not authorized by the Union because Union Business Agent Cruz, who was in charge of relationships with the hotel and its employees, told him so. However, Pagan admitted he never questioned Cruz as to whether the strike was contrary to his orders or wishes, that he never asked Cruz if he did anything to get the employees back to work, and that he (Pagan) never answered the hotel's letter of November 30 which asked him as head of the Union to publicly disavow the strike. Additionally, Pagan admitted that when he took charge of the matter on December I he made no attempt to warn the employees of possible disciplinary action for engaging in an unauthorized strike, nor was any disciplinary action taken. His reason for failing to do any of these things, said Pagan , was that the hotel wanted the strike, and did not want the employees to work. He got this advice, Pagan admitted , also from the union business agent, not from the hotel management. And, Pagan further admitted, he never questioned his business agent Cruz about Cruz's statement to management that the Union would keep the employees on strike until the hotel put the linen girl back into her former uniform attendant job. Pagan was already aware, before the meeting, that the hotel had petitioned the U.S. District Court for an injunction against the strike, and was 597 put on notice at the meeting that Cruz's statement formed part of the basis for a temporary restraining order issued that day directing the Union to immediately end the stnke. Pagan was handed the documents, motion, and order (exh. CP-8 and CP-2a), in the meeting. The hotel's actions, in meeting round-the-clock to get the employees back on the job and seeking legal aid to accomplish this end when negotiation appeared futile, were hardly the actions of an employer who wanted a strike. Pagan's response, in the meeting, to the temporary restraining order, was yes, the employees will go back but there will be sabotage. And indeed there was. The court order to end the strike was turned over by Pagan to Business Agent Cruz, to hold a meeting of the employees and tell them of the order. The employees ended the strike and reported for work the next morning, December 2. Immediately, the hotel was plagued by a rash of fires and other acts of sabotage within the hotel. Significantly, by Pagan's own testimony, not until the hotel called on Pagan to intervene, and he acceded by holding a meeting with the union delegates and a membership meeting, and sent in his business agents Cruz and de Jesus, did the sabotage take a sharp drop, though it did not entirely disappear, said Pagan. The late afternoon meeting of December 1 also dealt with the additional problems created by the violence and damage inflicted in the early morning by the Union and employees on persons and property in the hotel (see settlement proposal by hotel, exh. CP-7). In this connection the hotel announced the discharge of seven employees, including Union Delegates Sanchez and Morales, for their participation in the violence. As part of an overall settlement, the hotel indicated willingness to reduce the discharges to a 3 week suspension without pay. At a further meeting on the following day, Union Secretary-Treasurer Pagan came in with the seven employ- ees and declared that they were not guilty of participating in the violence and refused to accede to any suspension let alone discharge. At trial, Pagan admitted that he took this position without making any investigation of the charges and that he had not yet made any such investigation. In view of Pagan's assertion on December 2, the hotel reinstated the seven employees pending decision "by appropriate administrative or judicial authorities" (exh. CP-9, applicable to all seven). However, following the filing of the complaint in this case, the hotel formally discharged Union Delegates Sanchez and Morales on January 4, 1971. Promptly thereafter the Union hired both men as assistants to Business Agent Cruz, and on January 7, 1971, Union Secretary-Treasurer Pagan notified the hotel that both Sanchez and Morales had been assigned by the Union to assist Cruz in matters relating to employees of Hotel La Concha. E The Section 8(b)(1)(A) Findings Under the answer of the Union, as amended at trial, as well as by the proof , Union Business Agents Cruz, de Jesus, and Cadiz, and Union Delegates Sanchez, Morales, and Nazario Cordero are agents of the Union and were its agents on November 30-December 1, 1970. Specifically 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they have been agents of the Union in representing the employees of Hotel La Concha relative to the collective- bargaining agreement with the hotel. The complaint charged, and the General Counsel established, that after commencing and maintaining a strike of the hotel employees against the hotel on November 30, 1970, these six agents with the aid of others conducted a physical assault in the early morning of December 1 upon the nonstriking casino employees of the hotel in the hotel casino, injuring some of these employees and threatening injury to others, including supervisory employees, and damaging the hotel's casino and other property. From the nature of the assault, as well as the preceding threat by Union Business Agent Cruz (that the nonstrikers would be taken out by force unless the hotel closed the casino), it was clear that the object of the Union was to compel all employees to engage in the strike. By way of showing complete union responsibility for the illegal acts, it was further established that immediately following these events the chief union official, Pagan, though admitting that the strike was illegal under the collective-bargaining agreement, refused to disavow it or discipline participating employees, but instead ratified and adopted the unlawful conduct of his subordinates by continuing the strike until halted by court order Further, Pagan condoned the physical assault by union officials and hotel employees who participated, by declaring them not guilty without any investigation, and rewarding two of the employees discharged by the hotel, because of the assault, with jobs with the Union in administering the collective- bargaining agreement with the hotel. Pagan further evidenced his contempt for peaceful collective bargaining and legal process, and his condonation of violence for achieving the ends intended to be achieved by peaceful means, by threatening sabotage in the hotel if the hotel used the court injunction to halt the strike and get the employees back to work By his own admission such sabotage did occur and did not abate until he intervened with the employees thereafter at the request of the hotel. The violence and resulting coercion by the Union and its agents in preventing nonstriking employees from working, and correlatively deterring striking employees from aban- doning the strike and returning to work, was a clear violation of Section 8(b)(1)(A) of the Act. ILWU (Sunset Line and Twine Co), 79 NLRB 1487 (1948); New Power Wire and Electric Corp v N.LR.B, 340 F.2d 71, 72-73 (C.A. 2, 1965); Teamsters, Local 327 (Hartman Luggage Co.), 173 NLRB 1403 (1968), enfd. N L.R.B. v. Teamsters, Local 327, 419 F 2d 1282 (C.A. 6, 1970). CONCLUSIONS OF LAW By engaging in acts of violence against nonstriking 5 Limiting the order geographically to Puerto Rico would appear to conform to the suggestion of the Sixth Circuit in the cited Teamsters, Local 327 (Hartman Luggage) case, as well as fully meet the need in this case Note, however, that the Board did not feel constrained to tie a geographic limit to the orders in two subsequent cases against the respondent in that case, see Teamsters, Local 327 (Whale, Inc), 178 NLRB No 65, (1969), Teamsters, Local 327 (Coca-Cola Bottling Works of Nashville), 184 NLRB No 10, (1970) 1 am following the alleged limitation as to persons, adopted in those two cases to meet the Sixth Circuit criticism namely, an order against the Union, its officers, agents, and "repre- employees on the employer's property, injuring some of the employees and threatening injury to others including supervisory employees, and damaging the property of the employer, the Union has engaged in coercive activity designed to prevent nonstriking employees from working and to deter striking employees from returning to work. Such conduct is an unfair labor practice in violation of Section 8(b)(1)(A) of the Act, and affects commerce within the meaning of Section 2(6) and (7) THE REMEDY The General Counsel has asked that I takejudicial notice of previous similar violations of Section 8(b)(1)(A) of the Act by the Union, and provide a broad order prohibiting the Union from engaging in such conduct not only against employees of the Charging Party but also against employees of "any other employer on the island of Puerto Rico " Also, the Charging Party has suggested, because of the seriousness of the violation, that in addition to the usual posting of notices I make provision for the Union to mail to each employee of the hotel a copy of the notice. Both recommendations have merit In addition to the present case, the Union has been found to have violated Section 8(b)(1)(A) in three previous cases decided in 1969 and 1970. Each involved a different employer, in other locations in Puerto Rico, and each involved violence or the threat of violence by the Union. Two of the cases involved violence and threat of violence in connection with strikes, and the third involved the threat of violence growing out of a representation election. The cases are: 1. Union de Tronquistas, Local 901 (Envelopes, Inc.), Case 24-CB-662, TXD 225-69, April 24, 1969; adopted by Board order June 3, 1969. 2. Union de Tronqutstas, Local 901 (Barceloneta Shoe Corp), Case 24-CB-702, TXD 32-70, January 21, 1970; adopted by Board order February 18, 1970. 3 Union de Tronquistas, Local 901 (Bourne Puerto Rico, Inc.), Case 24-CB-713, TXD 40-70, January 27, 1970; adopted by Board order February 25, 1970. In view of the egregious nature of the violation in this case and the foregoing record of recent similar violations by the Union, of which I take judicial notice, I find that the Union has a proclivity to engage in violence and threats of violence, justifying a broad prohibition against such conduct (or other infringement of Section 7 nghts) affecting employees of the employer in this case and employees of other employers in Puerto Rico. N L.R B. v. Teamsters, Local 327 (Hartman Luggage Co), supra, 419 F.2d 1282, 12845 Upon the foregoing findings of fact, conclusions of law, sentatives," rather than the usual "successors and assigns", although I cannot help but believe, as suggested in the Coca-Cola Bottling case, that the Sixth Circuit overlooked the limited meaning of "successors and assigns" and its implicit presence in limited form anyway in enforcement orders, as described by the Supreme Court in Regal Knitwear Co v N L R B, 324 U S 9 (1945), making the change of little or no significance I am also following the Board practice , used in the cited Teamsters cases and commented upon in the Coca-Cola Bottling case, of not attempting to prescribe a time limit on the effectiveness of the broad order UNION DE TRONQUISTAS 599 and the entire record, and pursuant to Section 10(c) of the Act, there is hereby issued the following recommended: 6 ORDER The Union, its officers, agents, and representatives, shall: 1. Cease and desist from (a) Restraining or coercing employees of Hotel La Concha, or the employees of any other employer in Puerto Rico, from engaging in their employment, particularly by use of force or violence or threat of force or violence upon any employees, or by causing or threatening injury to supervisors or damage to property of employers. (b) In any other manner restraining or coercing employees of Hotel La Concha, or the employees of any other employer in Puerto Rico, in the exercise of their rights under Section 7 of the Act. 2 Take the following affirmative action which is necessary to effectuate the policies of the Act' (a) Post in its business office, meeting hall, and other conspicuous places where notices to members of the Union are customarily posted, copies in English and Spanish of the attached notice marked "Appendix "7 Immediately upon receipt of copies of said notice, on forms to be provided by the Regional Director of Region 24 (Hato Rey, Puerto Rico), the Union shall cause the copies to be signed by one of its authorized representatives and posted in the places designated in this subparagraph, the posted copies to be maintained for a period of 60 consecutive days thereafter. Reasonable steps shall be taken by the Union to insure that said notices are not altered, defaced, or covered by any other material. (b) Deliver to the Regional Director of Region 24 sufficient signed copies of said notice, in English and Spanish, for posting by Hotel La Concha at all locations where notices to employees of the hotel are customarily posted, if the hotel is willing to post them (c) Mail copies of said signed notice, in English and Spanish, to each employee of Hotel La Concha. (d) Notify the Regional Director of Region 24, in writing, within 20 days from the date of receipt of this decision, what steps the Union has taken to comply therewith.8 s In the event no exceptions are filed as provided by Section 10246 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, he adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes r 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 " 8 In the event that the recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read "Notify the Regional Director of Region 24 , in writing, within twenty days from the date of this Order, what steps the Union has taken to comply therewith , ' APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after a trial, that we violated the National Labor Relations Act: WE WILL NOT prevent or attempt to prevent employees of Hotel La Concha, or employees of any other employer in Puerto Rico, from working, either by use of force or violence or threat of force or violence upon any employee, or by causing or threatening injury to any supervisor or damage to property of the employer. WE WILL NOT in any other manner restrain or coerce employees of Hotel La Concha, or employees of any other employer in Puerto Rico, in the exercise of rights guaranteed employees by Section 7 of the National Labor Relations Act. UNION DE TRONQUISTAS DE PUERTO Rico, LOCAL 901, AFFILIADA A LA INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA (Labor Organization) Dated By (Representative ) (Title) 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, Seventh Floor, Pan Am Building, 255 Ponce de Leon Avenue, Box UU, Hato Rey, Puerto Rico 00919, Telephone 809-622-0586.