Union de Tronquistas, Local 901

UNION DE TRONQUISTAS, LOCAL 901 399 Union de Tronquistas de Puerto Rico, Local 901, afiliada a la International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America and Lock Joint Pipe & Co. of Puerto Rico Union de Tronquistas de Puerto Rico, Local 901, afiliada a la International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America and Union Obreros Cemento Mezclado. Cases 24-CB-774 and 24-CB-775 March 15, 1973 DECISION AND ORDER On February 17, 1972, Administrative Law Judge I Harry R. Hinkes issued the attached Decision in this proceeding. Thereafter, the Respondent Union filed exceptions and a supporting brief , and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. - The National Labor Relations Board has consid- ered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the Administrative Law Judge's rulings, findings,2 and conclusions and to adopt his recommended Order, as modified below. We agree with the Administrative Law Judge that Respondent Union violated Section 8 (b)(1)(A) by engaging in threats and picket line violence at the Lock Joint Plant in Puerto Rico beginning on August 9, 1971. We do not, however, agree with his further recommendation that the proper remedy in this case, contrary to Board precedent , is an order directing the Union to give backpay to all employees who did not work as a result of these unfair labor practices. From the very earliest days of the Taft-Hartley Act the desirability of such a remedy has been argued to the Board . In each case the Board has refused to enlarge the scope of its traditional remedies for picket line misconduct.3 The latest Board decision, Long Con- struction Company, 145 NLRB 554, involved physical injury to employees attempting to cross the picket line. The Board reiterated its view that a backpay order was not appropriate where the union's unfair i The title "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972 2 We find it unnecessary to the decision in this case to rule on the Administrative Law Judge's finding that the truck owners and their drivers are employees of Lock Joint Pipe Many of the incidents were directed at individuals who were directly employed by the Employer, and others involved employees of the truckowners As to the latter incidents, it is not necessary, for a finding of 8(b)(I)(A) conduct, that the employees coerced have been those of Lock Joint See, e g , Local 3887, Steelworkers (Stephenson Brick & Tile Company), 129 NLRB 6 3 Colonial Hardwood Flooring Company Inc, 84 NLRB 563, West Kentucky Coal Company, 92 NLRB 916, Bitner Fuel Company, 92 NLRB 953, Harry Griffin Trucking, 114 NLRB 1494, International Terminal Operating Co, inc, 114 NLRB 1563, Local 983, United Brotherhood of labor practices involved solely interference with an employee's right of ingress to his place of employ- ment. These important decisions have stood the test of 24 years of court litigation and Congressional scrutiny. They have not been reversed or nullified and we do not believe the time has come for the Board itself to take that step. National Cash Register Co., et al. v. N.L.R.B., 466 F.2d 945, on which our dissenting colleagues rely, stands only for the well-established principle that where an employer unlawfully prevents an employee from working at the insistence of a union both are jointly and severally liable for the employee's loss of pay.4 In exercising its broad discretionary powers under Section 10(c) of the Act the Board has always been careful to balance the effectiveness of a particular remedy against its consequences. Thus, the Board has refrained from directing an otherwise appropri- ate remedy where practical and economic considera- tions dictated a lesser deterrent. See, for example, Winn-Dixie Stores, Inc., 147 NLRB 788; Pepsi-Cola Bottling Company of Beckley, Inc., 145 NLRB 785; Tennessee-Carolina Transportation, Inc., 108 NLRB 1369. The extension of backpay liability to a situation where, as here, only picket line misconduct has occurred involves important considerations going to the heart of the right to strike under Sections 7 and 13 of the Act. Those sections of the Act have been called the safety valves of labor management relations. Emotions run high among those for and those against the union. Regrettable, sometimes there is violence and the threat of violence. This we deplore and in no way condone. However, adequate remedies under the Act other than backpay exist to prevent the occurrence of violence without interfer- ing with the right to strike.5 Where union agents, including pickets, engage in conduct violative of Section 8(b)(1)(A) the Board enjoins the continua- tion of such conduct and may, if warranted, seek an immediate court injunction under Section 10(j) of the Act. If such judicially directed injunctive relief is ignored effective contempt action is available. Finally, when a union resorts to or encourages the use of violent tactics to enforce its representation Carpenters and Joiners of America, AFL-CIO, 115 NLRB 1123 4 See also Stuart Wilson, Inc, 200 NLRB No 83, which is likewise distinguishable as there the employer discriminated against the employees by sending them home because of the union's unlawful threats and violence 5 As we noted in Long, supra, the lack of a Board order awarding backpay to employees unable to work because of injuries resulting from a union's unlawful conduct will not leave such employees without redress against those responsible for their injuries These individuals will still have available those private remedies traditionally used to process claims resulting from another's tortious conduct In fact they may be better served by pursuing such remedies as the employee's pay may be only a small part of the total required to make him whole, such as medical expenses as well as compensation for physical injury and pain and suffering. 202 NLRB No. 43 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rights the Board may decline to issue a bargaining order to remedy an employer's unfair labor practices and instead may direct an election to determine whether or not the union is the recognized represent- atives To do more, in our opinion, runs the risk of inhibiting the right of employees to strike to such an extent as to substantially diminish that right. For the misconduct of a few pickets may be sufficient to find the union in violation of Section 8(b)(1)(A) and enough to intimidate many employees. The Board would then be required, under the logic of our dissenting colleagues, to seek backpay for all intimi- dated employees. Faced with this finacial responsi- bility, few unions would be in a position to establish a picket line. In our opinion, union misconduct of this nature, while serious, does not warrant the adoption of a remedy so severe as to risk the diminution of the right to strike, a fundamental right guaranteed by Sections 7 and 13 of the Act. Rather, we believe, the availability to the General Counsel of Section 10(j) of the Act, implemented by contempt action, if necessary, as well as the witholding of an otherwise appropriate bargaining order and the direction of an election are the preferred methods of deterring picket line misconduct violative of Section 8(b)(1)(A). 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 Administrative Law Judge, as modified below, and hereby orders that the Respon- dent, Union de Tronquistas de Puerto Rico, Local 901, afiliada a la International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, its officers, agents, and representatives, shall take the action set forth in the said Order, as so modified. 1. Delete paragraph 2(a) of the recommended Order and reletter the remaining paragraphs accord- ingly. 2. Substitute the attached notice for that of the Administrative Law Judge. CHAIRMAN MILLER AND MEMBER KENNEDY, dissent- ing in part: We agree with our colleagues that by engaging in acts of violence against nonstriking employees, by damaging the property of nonstriking employees, and by threatening injury to other employees, the Union has, in violation of Section 8(b)(1)(A), engaged in coercive activity designed to prevent nonstriking employees from working and to deter striking employees from returning to work. However, we dissent from our colleagues' refusal to adopt the Administrative Law Judge's recommended Remedy to make the employees whole for the loss of wages suffered when they were prevented from working by the Union's unlawful conduct. We are unable to perceive the basis of our colleagues' conclusion that a backpay remedy herein would unnecessarily "risk the diminution of the right to strike," and their reliance on the existence of "adequate remedies . . . other than backpay . . . to prevent the occurrence of violence without interfer- ing with the right to strike." Section 10(c)'s concern is not with preventing or deterring violence but with eliminating and remedying the effects of that violence. Hence, any incidental deterrent or penal effect of backpay is irrelevant in our -determination of an adequate remedy for the violation found herein. Indeed, it is difficult ` to comprehend how making an employee whole for loss of wages suffered because of the union's unlawful activity in prevent- ing employees from working is any less remedial or any more punitive or deterrent in effect than making an employee whole for loss of wages suffered when the employer would not allow him to work because of the union's unlawful activity. In Stuart Wilson, Inc.,7 wherein the employer sent employees home because of union threats and violence, our colleagues did not question the remedial nature of the backpay order against the union nor did they point out the inevitable deterrent or penal effect of that or any other backpay order. In that case, as here, the backpay remedy was sought in order to reimburse the employees for loss of wages suffered as the result of the union's unfair labor practices, and any deterrent or penal effect of such remedy is merely incidental. In our view, a backpay order herein is no more penal or deterring in effect than any other backpay order issued by the Board. Indeed, a backpay remedy in the instant case is necessary to remove the effect of the Union's unlawful conduct and thereby effectuate the policies of the Act. In this regard, our colleagues have cited the Board's decision in Long Construction Company,8 as a basis for denying the remedy sought herein. While the Long decision acknowledges Colonial Hard- woods and related Board decision cited by our colleagues as denying backpay when a union violates Section 8(b) (1)(A) by interfering with an employee's right of ingress to his place of employment, the 6 Allou Distributors, Inc, 201 NLRB No 4, Laura Modes Company, 144 NLRB 1592 1 200 NLRB No 83 8 145 NLRB 554 9 84 NLRB 563 UNION DE TRONQUISTAS, LOCAL 901 401 Board in Long expressly refused to decide whether the result of those decisions is or is not required by any lack of statutory authority. Rather, the Board relied entirely on reasons of policy in denying backpay in Long. Obviously, therefore, Colonial Hardwood can no longer be considered controlling on the issue of the Board's authority to render such a backpay award; 10 the Board's rationale in Long, instead, makes the denial of backpay in cases involving such violations dependent only on certain policy considerations. The reasons of policy set forth in Long,ii however, in themselves distinguish that case from the facts before us. Obviously the Board's primary concern in Long was the existence of damages other than the loss of wages. But the fact that the loss of wages was only a small part of the total required to make the employees whole in that case is clearly nonexistent here. Therefore, the policy reasons for denying backpay-the necessity of private actions to fully recover damages, complicated factual questions outside the Board's expertise, and the existence of state interest in remedying tortious conduct-are manifestly irrelevant in determining whether or not a backpay remedy herein would effectuate the policies of the Act. The Board's authority to issue a backpay order to remedy union conduct found to be a violation of 8(b)(1)(A) of the Act recently received judicial approval from the United States Court of Appeals for the Sixth Circuit in National Cash Register Co., et al. v. N.L.R.B., 466 F.2d 945. The court there enforced the Board's backpay order against a union to remedy picket line restraint and coercion of employees found to be a violation of Section 8(b)(1)(A) of the Act. The Board did not find the 8(b)(2) violation alleged in the complaint in that case. The court of appeals' opinion contains a comprehen- sive review of the cases dealing with the broad discretionary authority of the Board in framing and issuing remedial orders under Section 10(c) of the Act. The court expressly rejected the contention that it is necessary to find a violation of Section 8(b)(2) of the Act for a backpay order to issue against a union. It is our view that in the case before us-where the Union has flagrantly violated Section 8(b)(l)(A) of the Act and where the only losses suffered by the employees are wages-the Board should exercise its descretion, fulfilling the mandate of Section 10(c), and award backpay in order to remedy the Union's unfair labor practices. We would, therefore, adopt the Administrative Law Judge's recommended Remedy and order the Union to compensate the employees for wages lost as a result of its unlawful conduct. 10 The past failure of the Board to prescribe such a remedy is not controlling Acknowledging the Board's authority to fashion a new remedy (the Woolworth formula for computing backpay, 90 NLRB 289), the Supreme Court stated in N L R B v Seven- Up Bottling Company of Miami, Inc, 344 U S 344 (1953) "[Section l0(c) I charges the Board with the task of devising remedies to effectuate the policies of the Act In fashioning remedies to undo the effects of violations of the Act , the Board must draw on enlightenment gained from experience " And in N LR B v Local 138, International Union of Operating Engineers, AFL-CIO, 380 F 2d 244 (C A 2), the court, upholding the Board's right to include interest in backpay awards where it had not previously done so, noted that the Board has broad discretion in determining what will effectuate the policies of the Act and held that the Board "is not bound by its poor precedent not to grant interest if it decides that an award of interest is consonant with the Board remedial purposes of the Act " ii The Board in Long declined to award backpay for the following reasons - (1) The cease-and-desist order, in conjunction with the utilization of the contempt procedures provided in the Act, is well designed to prevent the recurrence of the unfair labor practices and to vindicate public rights, (2) to the extent that the Board has power to award backpay to employees injured by Respondent's violent conduct, such power derives from the effect of such conduct on the employee's employment relationship , yet the employee's loss of pay may be only a small part of the total required to make him whole, which total may well include medical expenses as well as compensation for physical injury and pain and suffering , (3) to the extent that satisfaction of individual claims which are primarily private in nature may also serve to further the public interest in obtaining the peaceful resolution of labor disputes, such interest is equally well served by the individual's resort to those remedies traditionally used to process claims resulting from another's tortious conduct , (4) the numerous and complicated factual questions involved in settling such claims are not such questions as fall within the Board's special expertise , but do fall within the special competence of judge and jury, and (5) in our opinion, our exercise of such authority as may reside in the Board to award compensatory relief might well exert an inhibitory effect on the exercise of State authority , and would, in any event, complicate and confuse the issue, to the possible detriment of the employees whose rights we seek to protect [ 145 NLRB at 556 1 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 Lock Joint Pipe & Co. of Puerto Rico, 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 the employee or his property. WE WILL NOT in any other manner restrain or coerce employees of Lock Joint Pipe & Co. of Puerto Rico, or employees of any other employer in Puerto Rico, in the exercise of rights guaran- teed employees by Section 7 of the National Labor Relations Act. 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD UNION DE TRONQUISTAS DE PUERTO Rico, LOCAL 901, AFILIADA A LA INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA (Union 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 compli- ance with its provisions may be directed to the Board's Office, Pan Am Building, 7th Floor, P.O. Box U U 255 Ponce De Leon Avenue, Hato Rey, Puerto Rico 00919, Telephone 809-662-0586. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HARRY R. HINKEs, Trial Examiner : The charge in Case 24-CB-774 was filed by Lock Joint Pipe & Co. of Puerto Rico, hereinafter referred to as Lock Joint or Company, on August 11, 1971, and served on Local 901, Union de Tronquistas, hereinafter referred to as the Respondent or Union, on August 18, 1971. The charge in Case 24 -CB-775 was filed by Union Obreros Cemento Mezclado, on August 16, 1971, and served on said Local 901, Union de Tronquistas, on August 19, 1971. Pursuant to these charges an order was issued consolidating these cases on October 8, 1971, and alleging that the Union has been and is restraining and coercing the employees of Lock Joint in the exercise of their rights guaranteed in Section 7 of the Act, by threats of harm to Lock Joint employees and/or members of their families if said employees refuse or fail to observe the picket line established by the Union at the Lock Joint plant and by acts of violence directed at a Lock Joint employee making a delivery to a customer. By such behavior the' complaint alleges that the Respondent engaged in unfair labor practices affecting commerce within the meaning of Section 8(b)(1)(A) of the Act. By answer duly filed Respondent Union denied the alleged unfair labor practices. A hearing was held before me in Hato Rey, Puerto Rico, on November 15, 16, and 23, 1971, at which all parties were afforded full opportunity to be represented , examine witnesses and adduce relevant evidence . At the conclusion of the hearing, counsel were afforded an opportunity to make oral argument. In addition, briefs were requested from the parties and have been received from counsel for the General Counsel as well as from counsel for the Charging Party. Counsel for the Respondent Union failed to file a brief within the time allowed for said purpose and failed to make a timely request for an extension of time. Upon the entire record of this proceeding, I make the following: FINDINGS OF FACT I. JURISDICTION Lock Joint is a Puerto Rico corporation engaged in the manufacture of concrete pipes with its principal place of business in Carolina, Puerto Rico, and another in Hato Rey, Puerto Rico. During the calendar year preceding the issuance of the complaint, which period is representative of all times material herein, it purchased and caused to be shipped in the course of its operations directly to its place of business from points outside Puerto Rico , materials and supplies valued in excess of $50,000. The complaint alleges, counsel for the Respondent Union stipulated at the hearing, and I find that Lock Joint is now, and has been at all times material herein, an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. The complaint alleges, counsel for the Respondent Union stipulated during the course of hearing , and I find that the Respondent Union is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. Agency The complaint alleges that Nelson Gotay, Jaime Ortiz, and Luis Roberto Capllonch were officers and agents of the Respondent Union and Respondent's answer denies this allegation. In support of this allegation, counsel for the General Counsel cites the testimony of Edward Walters, Lock Joint's vice president and general manager , who testified that Ortiz, Capllonch, Gotay, as well as Jose Cadiz Ayala,I were representatives of the Respondent Union, present at the picket line that was established outside the Lock Joint plant early in August 1971, and that Ortiz and Capllonch were there most consistently. Counsel also cites the testimony of witness Candelaria, an employee of Lock Joint who was called to testify on the behalf of the Respondent Union. Candelaria testified that Ortiz was in full charge of the picketing activities . General Manager Walters also testified in rebuttal that in the month of June 1970 he received a telegram signed "Nelson Gotay, representative of the Teamster's Union of Puerto Rico Local 901." In it he was told that Candelaria and another individual were representatives of the Company's office workers. In addition, Walters testified that from late 1970 to August 6, 1971, he negotiated a contract with Ortiz, Capllonch, and Gotay representing the Union. I was also asked to take official notice of matter contained in prior I The transcript of this proceeding at p. 14, 1. 12 is hereby corrected. Adis Ayala should read Cadiz Ayala. I UNION DE TRONQUISTAS, LOCAL 901 Board and Trial Examiners' decisions. Thus, in Cases 24-CA-2907 and 2921, the charge initiating the complaint against Lock Joint was filed on behalf of the Respondent Union by Nelson Gotay and signed by him as "organizer" for the Respondent Union. At the hearing before the Trial Examiner in those cases, which took place in January 1971, Nelson Gotay filed a formal appearance as representing the Respondent Union. The Trial Examiner's decision in those cases identifies Capllonch as a steward for the Respondent Union at the Lock Joint plant. In the case of Hotel La Concha, 193 NLRB No. 90, the decision of the Trial Examiner adopted by the Board identifies Cadiz as a business agent for the Respondent Union in activities occurring around November 1970. In that same decision the Trial Examiner cites the case of the Respondent Union involving Barceloneta Shoe Corp. in which both Cadiz and Gotay are listed as agents for the Respondent Union during events occurring in 1969. Counsel for the General Counsel submits that the agency of Ortiz, Capllonch, Gotay, and Cadiz is thus established noting that counsel for the Respondent called none of these individuals to testify, although some, if not all, of them were present at some time during the course of the hearings. No explana- tion was offered for Respondent's failure to call these individuals to rebut the testimony establishing their agency and their behavior or to negate the inferences to be drawn from the documentary evidence submitted in that connec- tion. It may be argued that the agency status of Gotay, Capllonch, and Cadiz, though established for periods in 1969, 1970, and early 1971, are not necessarily indicative of their union agency status in this proceeding for August 1971. I would not agree. The prior existence or nature of a status is admissible to evidence its existence or nature at a particular time. See Wigmore's Code of Evidence, 3d ed., sec. 497, also Wigmore on Evidence, 3d ed., sec. 382. The evidence of agency on the part of these individuals shown in 1969, 1970, and 1971, coupled with Respondent's failure to contradict the inference that such status continued uninterrupted, particularly where such contradictory evi- dence, if it existed, was readily available by the testimony of these individuals who were present during the hearing, leads me to conclude that counsel for the General Counsel has sustained his burden of proof to establish that Gotay, Capllonch, Cadiz, and Ortiz were agents for the Respon- dent Union at all times material herein. B. .- The Status of the Truck Owners and their Drivers The hauling operations of the Company are performed by four individuals who own their own vehicles and hire their own drivers. They haul exclusively for Lock Joint and do not haul for any other business. The Company establishes the rates it pays these truck owners based upon distance and weight of the cargo. A Lock Joint employee supervises the drivers, telling them where to go and when to go. On occasion the Company will lend the truck owner money for maintenance of their vehicles or to buy a set of tires or to get license plates. The individuals driving these trucks are paid by the truck owners who also pay all operating expenses and taxes. In J. K. Barker Trucking Co., 403 181 NLRB 515, affd. 450 F.2d 1322 (C.A.D.C.), an arrangement not unlike that in this proceeding was found to result in the truck owners who operated their own trucks for a contractor being deemed employees of such contrac- tor: Notwithstanding the fact that the owner-operators have substantial financial investments in trucking equip- ment, pay all maintenance and operating costs, pay for all permits, insurance, social security and income taxes, we are persuaded by the fact that, once on the job, the owner-operators, like the employee-operators, were at all times subject to the supervision of the contractors. In addition, the contractors retained control over the loaders which were essential for loading the trucks, as well as control over the place where the materials were to be unloaded, and the number of trucks and hours of their use. Accordingly, I find that the truck owners and their drivers are employees of Lock Joint within the meaning of the Act by virtue of the complete control exercised by Lock Joint over their operations. C. The Unfair Labor Practices General Manager Walters testified that the picket line of the Respondent Union was set up at the Lock Joint plant on Monday, August 9, 1971. Felicita Perez Cruz, a secretarial employee of the Company, testified that when she came to work on August 9 she found the car of Jaime Ortiz blocking the entrance to the plant. She parked her car near the office and was approached by Ortiz and Capllonch , who also worked for Lock Joint, and was told by them that it was dangerous for her to enter because they were on strike and that it was better for her to go back home and stay. She went home and returned again around 1 p.m. when she entered the plant through a different parking lot. The next day when she went to work she was met at the entrance by Caplionch, who told her she could not enter. With Capllonch was another individual whom Mrs. Perez identified as "one of the Tronquistas" (Teamsters). The Teamster, in the presence of Capllonch, told Perez "if you go in you will have to face the consequences ." Neverthe- less, Perez entered and stayed until noon . She left at that time, however, because she was nervous and did not return to the plant again until a week later. In a statement given at the time by Mrs. Perez to an attorney for the Charging Party neither the names of Capllonch and Ortiz appear nor does the statement by some person that it was dangerous to go into the plant. Mrs. Perez explained that at the time she did not want to mention the specific name nor use the words that she was told. Cirino Alvarado San Lucas, a timekeeper for Lock Joint, testified that he reported to work on August 9, and while working was telephoned by Ortiz, who told Alvarado to come out. Some 15 or 20 minutes later , Alvarado not having come out, Ortiz called him once again and, using a coarse expletive, told him "come on out or they will wreck your car." Alvarado then came out and was told by Ortiz that they were on strike. Ortiz asked Alvarado to pick up a picket sign, but Alvarado refused, agreeing, however, that he would stay outside . When Alvarado reported to work DECISIONS OF NATIONAL LABOR RELATIONS BOARD the next day he found Capllonch, Gotay, and some 8 or 10 others at the entrances to the main gate. The group came out in front of Alvarado's car and told him that he could not get through, that nobody could go in. After staying for a while, Alvarado left. On Wednesday, August 11, he reported to work as usual but did not enter the plant until about 11 a.m. when General Manager Walters called him into the plant. Alvarado explained that he was afraid to enter the plant that morning. After spending a few hours with Walters, Alvarado left the plant and found that his car's windshield and windows were broken and all four tires punctured. Ortiz was in the vicinity and when Alvarado told him there was no reason to wreck his car because he was not going to work, Ortiz replied, "I am your friend and advise you to stay home because if you come to work you are going to be hit." On August 12, while Alvarado was at work at the plant, he received a phone call from a girl whose voice he could not identify, suggesting that he might have difficulty leaving the plant. Alvarado asked another employee to get him out in the other employee's car. The two then left the plant with Alvarado, frightened, lying on the floor of the back seat. Looking up he could see Ortiz running alongside, the car. Alvarado stayed home after August 12 and did not return to work until August 25. Raul Quiles Camacho, payroll officer for Lock Joint, testified that he reported to work on August 9 and was stopped at the gate by Ortiz who told him not to go into the plant because his car might be damaged. Capllonch was in the surrounding area at the time, together with several others. Quiles did not enter the plant nor did he go to work the next day because of these threats. On Wednesday, August 11, he went to the plant and, as he went through the gate, Capllonch called to him. A man with Capllonch, whom Quiles did not know, told Quiles, "The Company will protect you from the gate in, but what happens to you outside neither you nor your family will be protected." Another person walked over and pointing a finger at Quiles said, "Nobody has broken a strike for me." That person moved forward and Quiles called to a police officer who was standing nearby. The police officer walked Quiles to the office. Quiles was frightened and, when he left the plant, approached Ortiz and told him that he was not going to work. Ortiz replied, "all right you can go." Quiles stayed away from work for 1 or 2 weeks and returned when the Lock Joint chief of personnel told him that everything was all right and that he could come back to work. Vicente Betancourt de Jesus, a Lock Joint employee, testified that he went out to lunch on August 9. Ortiz and several others were standing in a group outside. Someone said that if Betancourt went in to take the job of the janitor he would be attacked. Betancourt further testified that on August 24, as he was leaving the plant, he met a group of five or six people including Ortiz. Ortiz said that Betan- court was working and someone else added that they were watching Betancourt. Americo Nigaglioni, owner of three trucks used exclu- sively to transport materials for Lock Joint under the arrangement described earlier, testified that he arrived at the plant on the morning of August 9 and saw Capllonch, Ortiz, and Candelaria on the picket line. Later that morning, Gotay told Nigaglioni, "Cooperate or in the surrounding area the police will protect you, outside we will catch you, we are the bosses outside." Nigaglioni further testified that Gotay told him "if I wanted my drivers and if I didn't appreciate my trucks to try and move them." When Nigaglioni left the plant that afternoon he heard Ortiz and Capllonch call the departing office employees "rats." Nigaglioni testified further that he was unable to use his trucks because the Teamsters prevented him, and for 3 weeks his truckdrivers did not work. Nigaglioni himself visited the plant repeatedly during this period of time using a pickup truck to get to and from the plant and not the usual tractor-trailer trucks used for company deliveries. He was not stopped or interfered with on these visits. Jose Luis Perez Rosado works as a driver for his father, Ismael Perez Souchet, who, like Nigaglioni, is a truck owner supplying trucks and drivers for Lock Joint under the arrangement described earlier. Jose Perez.testified that he went to Lock Joint on August 9 and stayed there all day. Standing with Gotay and Nigaglioni he heard Gotay tell Nigaglioni that they wanted him to cooperate, and if the drivers and trucks were not worth anything to him then he should bring the company material out. Gotay added that the police gave Nigaglioni protection inside Lock Joint, but that outside he would not have any. Ismeal Perez Souchet, Jose's father, testified that on August 9, while outside the gates of Lock Joint, Gotay told him that if did not want his trucks to be damaged he should stop hauling for Lock Joint. Mr. Perez' trucks did not work at the Carolina plant of Lock Joint for the next week or two. Wilfredo Martinez Rolon works for his father, who is another truck owner supplying trucks and drivers for the exclusive use of Lock Joint. Martinez testified that, when he arrived at the Lock Joint plant on August 9, he saw certain employees of Lock Joint picketing in front of the plant. Ortiz, who was on the picket line, called to Martinez and asked him to talk to an individual who was from the Teamsters Union. That individual told him that it was better that he did not take his trucks out because they might be damaged. Ortiz, however, was not present when Martinez was told this and Martinez was able to operate his trucks from the plant that day. The next day when -Martinez came to the plant again, he found a much bigger crowd outside the plant with a "menacing attitude." He then reported to the Lock Joint dispatcher that the drivers, having seen how things were, did not want to take the trucks out of the plant. The next day he met Gotay in front of the gate to the plant. Many other individuals were present. Gotay told Martinez, "Do not attempt to move that truck that you are loading there, if you dare take it out through here we are going to destroy the truck and we are not responsible for what happens to the driver." When Martinez said that he did not like Gotay's threatening attitude, Gotay replied, "Oh, you're one of the tough guys" and called to several others saying "This is one of the tough ones-we will have to give him a scolding." One of them told Martinez, "It's best that you keep quiet because you know what can happen to you." Martinez reported the incident to a policeman who was standing nearby and Gotay said, "You are nothing but a baby-if you have UNION DE TRONQUISTAS, LOCAL 901 these trucks here be a man and protect them if you dare." Martinez then sent his drivers home and they stayed away until August 25. 1. The shooting incident Martinez testified that he had agreed with General Manager Walters to provide a truck for the transportation of a trailer of cement in bulk. On August 13, Walters asked if Martinez had such a truck available to haul the cement trailer. Martinez supplied the tractor, but not the driver, whom Walters procured. When Martinez left the plant that afternoon, he passed the pickets among whom were Candelaria and Capllonch. Someone in the crowd told him, "We know you live in Jardines de Vega Baja so be very careful and remember that as a truckman we are going to get rid of you." David Salmon is an assistant manager for the Wacken- hut Corporation which provides security services for plants and has provided such services for Lock Joint for the past 11 years. Salmon testified that Walters asked him to provide protection for the driver and the truck which was to be used to obtain cement for the Lock Joint plant on August 13. Accordingly, Salmon arranged for two Wack- enhut vehicles to escort the vehicle, using four investigators including Salmon. At about 2 p.m. on August 13, the truck and trailer left the plant, a Wackenhut vehicle with two investigators in front of it and another Wackenhut vehicle following it with Salmon and a driver in the second vehicle. As the convoy left Lock Joint passing the picket line, several rocks were thrown at the truck which swerved to the left missing a large group of demonstrators that was on the right, but striking several police cars which were parked to the left of the truck. The truck and the two cars continued, getting to the highway that leads to the cement plant. This highway has three traffic lanes going in one direction and three traffic lanes going in the opposite direction with a dividing median. The truck and its two accompanying vehicles were in the middle lane when Salmon noticed a light green Ford Torino bearing license 49 N065 approaching from the rear in the left lane. It passed Salmon's car and positioned itself next to the rear wheels of the trailer. There it made several swerving motions which appeared to be an effort to force the truck to move over, but in so doing the rear of the Ford collided with the rear wheel of the trailer. Salmon radioed his office for a police car, but in the meantime began taking photographs of the event. After the collision between the Torino and the cement trailer, the Torino fell behind. Before long, however, it approached once again from the rear on the left lane. Salmon noticed that the right rear window of the Torino was down, although all the other windows were closed. A pistol was extended out the window of the car and several shots were fired towards the rear of the trailer . Salmon could see paint flying off the rear of the trailer and the Torino then dropped behind. A police car then approached and the Torino pulled around and came over on the right lane and, proceeding at a very high rate of speed, passed the convoy and disappeared. The convoy continued to the cement plant where the trailer was loaded and returned to Lock Joint escorted by two police cars. Salmon then took 405 photographs of the trailer which, together with the photographs taken of the incident on the highway with the Torino, were offered and received in evidence . In addition, a certification from the Puerto Rico Department of Public Works was offered and received in evidence establishing that a Ford car with license 49 N065 is registered in the name of Jose Cadiz Ayala, a resident of number 352 del Parque Street, Santurce, Puerto Rico. Said Jose Cadiz Ayala is the Cadiz earlier noted as a business agent of the Respondent Union. Moreover, the residence of said Cadiz as noted on the certification from the Department of Public Works is the same as the address of the Respondent Union as well as that of counsel for the Respondent Union. It would appear, therefore, that the so-called "residence" of Cadiz is really the union headquarters. Salmon left the Lock Joint plant late in the afternoon of August 13, escorting Walters and the secretaries, who were very nervous. The cars of the employees were lined up with a Wackenhut car in the front and another Wackenhut car, in which Salmon was riding, in the rear. The procession passed a group of demonstrators one of whom broke the windshield on one of the cars with a rock . Salmon's windshield was also smashed. Salmon testified that the Ford Torino involved in the highway incident was seen by him at the Lock Joint plant prior to the convoy leaving the plant early that afternoon. When the convoy returned the Ford was once again parked at the plant but in a different spot . Salmon also testified that, when escorting the employees from the plant late that afternoon, he recognized Gotay and Cadiz in the crowd of demonstrators . Later, at the request of police authorities, Salmon identified the driver of the Ford Torino as Cadiz. At around 11:30 p.m., on the night of August 13, Salmon returned to the Lock Joint plant to check whether the guards he posted there were performing their duties. According to Salmon's instructions, the plant gate was locked. Salmon got out of the car, walked up to the gate and showed the guard his credentials. Gotay came up behind him with several other people, commenting to these people, "Here's the son-of-a-bitch that caused all the trouble this afternoon," adding that he thought "all the god damn gringos should be run out of Puerto Rico." As Salmon left the plant shortly thereafter, the demonstrators rushed at his car damaging it with rocks . According to Salmon, Gotay was present at this time. Joseph Rodriguez, another Wackenhut employee, corrob- orated much of Salmon's testimony, testifying that the Ford Torino came up twice on the left of his car in which both he and Salmon were riding. Although he did not see any pistol firing he did hear the radio of the lead vehicle reporting "they are shooting at us." Rodriguez also testified that on August 18, he was assigned to meet a tank truck making a delivery to Lock Joint. He met the truck about a half a mile from the plant . There another car approached and a man identifying himself as Gotay got out and spoke to the truckdriver. He then told Rodriguez not to bring the truck into the plant because they had reached an agreement and he gave permission to bring the truck to the plant the next day. Gotay then pointed to three cars nearby saying, "All these are my men and I control 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD them." The truckdnver then refused to drive the truck into the plant because of the men in the area. 2. The case of the Respondent Luis Antonio Hernandez, called as a witness by the Respondent, testified that he was working on August 9 for Lock Joint. He left the plant at noon and met the strikers who were picketing. He denied being threatened or being prevented from going into the plant, nor did he know of any violence. He was, however, unable to say how many were involved in the picket line because he was "not watching too well," nor was this witness able to recognize the pickets, aside from one who is his coworker and neighbor and who is not involved in this matter. Hernan- dez testified that Lock Joint discharged him on August 27 and gave him a letter specifying the reason. He claimed that he paid no attention to the letter because he had another job and, therefore, did not know the reason for his discharge. Later, however, he admitted that he took his discharge to arbitration because he was without work. I find his testimony to be of little probative value. His inability to state the number or the identity of the pickets whom he claimed to see and his contradiction concerning his knowledge for the reason for his discharge lead me to believe that his testimony is not to be credited. Angel Maysonet Robles, another witness called by the Respondent, testified that he was a driver for truck owner Ismael Perez Souchet. He, too, testified that he was not prevented from going in or coming out of Lock Joint, nor was he threatened. He admitted, however, that he did not work on August 10, allegedly because the other drivers were not working he didn't want to work alone. Jorge Gutierrez, another witness called on behalf of the Respondent, was a driver for the truck owner, Nigagliom. He testified that on August 9, working for Nigaglioni, he went into the Lock Joint plant with nobody impeding his entrance or exit, nor were any threats made to him. Gutierrez further testified that he had no knowledge of any other drivers being threatened with bodily harm or damage to a truck. He, too, however, did not work on August 10, claiming that he did not work because the rest of his coworkers refused to work and he stayed away for 2 weeks. The testimony of these three witnesses concerning the absence of violence or threats does not negate the testimony of others who claimed to be threatened. At most, it merely indicates that these three employees were not present on the specific occasions when the alleged violence and threats occurred. Angel Luis Bermudez, a Lock Joint timekeeper at the Company's Hato Rey plant, testified that he learned of the work stoppage on Saturday, August 7. Nevertheless, he reported for work on August 9, 10, and 11 at the Hato Rey plant. On August 12, he joined the work stoppage and picketed at the Carolina plant of Lock Joint. He denied anyone threatened any of the employees, but admitted that he did not see anything on August 9, 10, and 11 at the Carolina plant. Longino Candelaria, called as a witness by the Respon- dent, testified that he was an employee of Lock Joint and reported to work on August 9 in the morning. Upon his arrival he was notified that there was a work stoppage and, accordingly, he went out where he met Ortiz. Ortiz told him that he expected the cooperation of Candelana and that there was going to be no fighting. He further testified that nobody threatened him. Candelaria denied ever being a delegate for Local 901. As noted earlier, however, General Manager Walters testified that he received a telegram from the Union notifying him that Candelana represented the Union. Candelaria also denied that Capllonch and Ortiz were delegates. He admitted, howev- er, that when Ortiz told him that there will be no fighting on the picket line, he was reading from a letter signed by the secretary-treasurer of the Union and addressed to Capllonch and Ortiz as "delegates" for Lock Joint. I do not credit Candelana's testimony. 3. Analysis and conclusions I credit the testimony of the witnesses who testified on behalf of the General Counsel. Even were I to credit the testimony of the witnesses who testified on the behalf of the Respondent, I could only conclude nothing violative of the Act occurred while they were present. Their testimony does not contradict the testimony given by General Counsel's witnesses. No one contradicted the threats made to Felicita Perez, Alvarado, Quiles, Betancourt, Nigaglioni, Ismael, or Martinez. No one contradicted the acts of violence directed to Alvarado or the Lock Joint driver of the cement truck-trailer. Indeed, the ones who could have contradicted the testimony thus offered by General Counsel's witnesses, namely Gotay, Ortiz, Capllonch, and Cadiz, were not called by counsel for the Respondent to testify despite their apparent availability. Accordingly, I find that agents of the Respondent Union threatened the above-named employees of Lock Joint if said employees refused or failed to observe the picket line established by the Respondent at Lock Joint, and that said agents committed acts of violence against Lock Joint employees for their failure to observe the picket line established by the Respondent. Such behavior was a clear violation of Section 8(b)(1)(A) of the Act. I.L. W. U. (Sunset Line and Twine Co.), 79 NLRB 1487; New Power Wire and Electric Corp., v. N.L.R.B., 340 F.2d 71; Teamsters Local 327 (Hartmann Luggage Co.), 173 NLRB 1403, 419 F.2d 1282. CONCLUSIONS OF LAW 1. Nelson Gotay, Jaime Ortiz, Luis Capllonch, and Jose Cadiz were at all times material herein officers and/or agents of the Respondent Union. 2. The truck owners and the drivers they employ who haul exclusively for Lock Joint and whose operations are directly and intimately controlled by Lock Joint are employees of Lock Joint within the meaning of the Act. 3. By engaging in acts of violence against nonstriking employees, by damaging their property, and by threatening injury to other employees, the Union has engaged in coercive activity designed to prevent nonstriking employ- ees 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). UNION DE TRONQUISTAS, LOCAL 901 407 THE REMEDY Having found that Respondent has engaged in certain unfair labor practices I shall recommend that it cease and desist therefrom and take certain affirmative action which I find necessary to effectuate the policies of the Act. Counsel for the General Counsel recommends the issuance of a broad order against violence and threats of violence, prohibiting such conduct or other infringement of Section 7 rights of employees of Lock Joint or any other employer in Puerto Rico. He cites the Hotel La Concha case, supra, in which the Trial Examiner noted that this Respondent had been found to have violated Section 8(b)(1)(A) in three previous cases decided in 1969 and 1970, each involving a different employer in other locations in Puerto Rico, and each involving violence or threats of violence by the Umon. The Hotel La Concha case was a fourth such case and in that case the Board adopted the Trial Examiner's recommendation that the Order prohibiting such conduct by the Umon be broad and cover employees of any employer in Puerto Rico. In addition to the usual posting of notices, the Union was required to mail each employee a copy of the notice. In addition, however, counsel for the General Counsel urges that the Order require Respondent to make whole those employees who lost wages because Respondent's violence and threats of violence prevented them from working. The Act empowers the Board to make such a provision under Section 10(c) which permits the imposition of a backpay order against a labor organization which is responsible for the discrimination suffered by the employ- ee. In Long Construction Company, 145 NLRB 544, however, the Board rejected the Trial Examiner's recom- mendation that the Umon in that case make certain employees whole for loss of wages resulting from the unlawful acts of the Union. In that case the Board noted that the cease-and-desist order is well designed to prevent the recurrence of the unfair labor practices and the satisfaction of individual claims, which are primarily private in nature, is preserved by the individual's resort to those remedies traditionally used to process claims result- ing from another's tortious conduct. Ordinarily such reasoning would be more than adequate to limit the remedy to a cease and desist Order. I note, however, that in the case of this Union, which is the Respondent herein, at least four cease-and-desist orders have been issued against it within the past 2 years. None of them have apparently had any noticeable effect. In each instance the victims of the Union's unlawful behavior have been relegated to private law suits, if indeed, they sought any redress. Where as here, the Union has repeatedly shown a disregard of its legal obligations, I find no reason to accommodate it further by relieving it from the obligation that it has towards its victims and providing for it still another means of evading its responsibilities, since many of the victims will not have the inclination or the means to pursue a 2 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 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 remedy at court in separate litigation . I, therefore, will recommend that the Respondent Umon be required to make whole those employees of Lock Joint who have suffered a loss of wages by reason of the Union's unlawful conduct in preventing them from working. 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 The Union, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Restraining or coercing employees of Lock Joint Pipe & Co. of Puerto Rico, or the employees of any other employer in Puerto Rico, from engaging in their employ- ment, particularly by the use of force or violence or threat of force or violence upon any employees, or causing or threatening to cause injuries to employees or damage to their property. (b) In any other manner restraining or coercing employ- ees of Lock Joint Pipe Co. of Puerto Rico, 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) Make each employee of Lock Joint Pipe & Co. of Puerto Rico whole for any loss of wages he may have suffered by reason of the Respondent's unfair labor practices in restraining and coercing such employee in the exercise of the Section 7 rights. (b) Post in its business office, meeting hall or other conspicuous places where notices to members of the Union are customarily posted copies in English and Spanish of the attached notices marked "Appendix."3 Immediately upon receipt of copies of said notice on forms to be provided by the Regional Director of Region 24, the Union shall cause 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. (c) Deliver to the Regional Director of Region 24 sufficient signed copies of said notice, in English and Spanish, for posting by Lock Joint Pipe & Co. of Puerto Rico at all locations where notices to employees of the Company are customarily posted, if the Company is willing to post them. (d) Mail copies of said signed notice in English and Spanish to each employee of Lock Joint Pipe & Co. of Puerto Rico. (e) Notify the Regional Director of Region 24, in writing, 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 read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD within 20 days from the date of receipt of this Decision what steps the Union has taken to comply herewith .4 4 In the event that the recommended Order is adopted by the Board after date of this Order what steps the Respondent has taken to comply exceptions have been filed, this provision shall be modified to read "Notify herewith " the Regional Director for Region 24, in writing, within 20 days from the 1