Dyneteria, Inc.

282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dyneteria, Inc. and Union Nacional de Trabajadores. Case 24-CA-3321 November 13, 1973 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On September 11, 1973, Administrative Law Judge John F. Corbley issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,_ and conclusions of the Administrative Law Judge and to adopt his recommended Order. 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 and hereby orders that the Respondent, Dyneteria, Inc., Viques, Puerto Rico, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE JOHN F. CORBLEY, Administrative Law Judge: A hearing was held in this case on June 5 and 6, 1973, at Hato Rey, Puerto Rico, pursuant to a charge filed by Union Nacional de Trabajadores on March 5, 1973, and duly served upon the Respondent on the same date, and a complaint and notice of hearing dated May 4, 1973, issued by the Regional Director for Region 24 of the National Labor Relations Board, which was likewise duly served on Respondent. The complaint alleges that Respondent has violated and continues to violate Section 8(a)(3) and (1) of the Act by discharging Jaime E. Lopez Roger, Francisco Lopez Roger, and Ruben Lopez Roger on February 26, 1973, and thereafter refusing to reinstate them, because said employees joined and assisted the Union and engaged in other concerted activity for the purposes of collective bargaining and mutual aid and protection. In its answer which was duly filed and amended on the record at the hearing, Respondent denied the commission of any unfair labor practices. For reasons, which will appear, I find and conclude that Respondent discharged and thereafter refused to reinstate Jaime E. Lopez Roger, Francisco Lopez Roger, and Ruben Lopez Roger in violation of Section 8(a)(3) and (I) of the Act. At the hearing, the General Counsel, Respondent, and, for part of the time, the Charging Party, were represented by counsel. All parties were given full opportunity to examine and cross-examine witnesses, to introduce eviden- ce, and to file briefs. The General Counsel and Respondent presented oral argument at the conclusion of the hearing and the Charging Party waived this right. Briefs were received from the Respondent and the General Counsel on July 31, 1973. Upon the entire record in this case,' including the briefs, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The Respondent is and has been at all times material herein a corporation organized under, and existing by virtue of, the laws of North Carolina. At all times material herein the Respondent has maintained its principal office and place of business in the city of Dunn, North Carolina, and various other places of business in several States of the United States and the Commonwealth of Puerto Rico, where it is, and has been at all times material herein, continuously engaged in providing maintenance and security guard services at U.S. military installations located at the aforesaid places pursuant to contracts with the Department of Defense. During the past year, which period is representative of its annual operations generally, Respondent, in the course and conduct of its business operations, furnished services valued in excess of $500,000. At its Vieques island location, here involved, Respondent is engaged in furnishing kitchen, housecleaning, and security guard service for the Naval air facility located there, pursuant to a contract with the Department of Defense which provides Respondent $160,000 in annual income. The Board took jurisdiction of the Respondent in March 1973 pursuant to a stipulation for certification upon consent election at Respondent's Vieques location in Case 24-RC-4951 which stipulation was approved by the Regional Director on March 8, 1973. In paragraph 8 of said stipulation and in a previously submitted commerce questionnaire Respondent admitted the foregoing facts in respect to its Vieques operation and also conceded that it is an Employer engaged in commerce within the meaning of the Act. In view of the Respondent's recent admission as to the Board's jurisdiction and the assertion of jurisdiction by the Board in Case 24-RC-4951, in view of Respondent's services across the North Carolina state line to Puerto Rico to the United States Government, which services have a value in excess of $50,000 annually; and for the further reason that such services have a substantial impact upon i The transcript of the proceeding is hereby corrected in the following particulars ]omitted from publication] 207 NLRB No. 51 DYNETERIA, INC. 283 the national defense, I conclude that Respondent is and has been, at all material times herein, an Employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act? II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer (as amended at the hearing) admits, and I find that Union Nacional de Trabajadores, sometimes referred to hereinafter as the Charging Party or the Union, is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background-Respondent's Operations on Vieques,,- Its Hierarchy Vieques is an island off the coast of Puerto Rico where the United States Navy operates a facility. As previously noted, Respondent has a contract to provide kitchen, housecleaning, and security guard service to the Navy at this location. Respondent's housecleaning force, which performs outside work including the cutting of grass and trees, normally consists of approximately 28 employees. The three alleged discriminatees, Jaime E. Lopez Roger, Francisco Lopez Roger, and Ruben Lopez Roger, who are brothers, were members of the latter crew. The guard group includes about 25 employees and the kitchen force about 8 or 9. Raul Flores Mora is and has been at all times material herein the general manager of Respondent's operations at Vieques, Puerto Rico, and its agent at that location, reporting directly to Respondent's president at Dunn, North Carolina. In his capacity as general manager, Mora prepares the work schedule, checks the payroll, takes care of employee "complaints," hires and discharges employees, disciplines them, and, through three immediate "supervi- sors," assigns them work. I find, as conceded by counsel for Respondent in his closing statement, that Mora is a supervisor within the meaning of Section 2(11) of the Act. I further find that he is, and was at all material times, an agent of Respondent acting in its behalf at least insofar as the acts complained of herein (the discharge of the three Lopez Rogers) are concerned, because it is undisputed that he had the authority to discharge employees, and, as will appear, was the only person with such authority insofar as the housecleaning employees were concerned. Next in Respondent's chain of command with regard to its housecleaning operations is Wilfredo Rodriguez, a so- called nonworking "supervisor." 3 Under Rodriguez are at least three working foremen who oversee crews of about 7 employees into which the housecleaning force of 28 is divided. The General Counsel contends that Wilfredo Rodriguez is a supervisor within the meaning of Section 2(11) of the Act, primarily because, says the General Counsel, Rodri- 2 Siemons Mailing Service, 122 NLRB 81, 85 (direct outflow), Trico Disposal Service, Inc., 191 NLRB 104; The Multi-Color Company, 122 NLRB 429, 433. 3 1 make this finding based on the credible testimony of Mora- 4 Given the difficulty of translating the full meaning of Spanish words and thoughts into English and vice versa, I do not deem Rodriguez' guez has the authority to hire and fire employees and responsibly to direct them. Rodriguez denied at the hearing that he possesses authority to hire and discharge employ- ees. When confronted with his affidavit to a Board agent he acknowledged that he had told the Board agent that he, possessed the authority to hire and fire but explained that he took such action only after Mr. Mora had interviewed the employee on whom the action was taken- I am satisfied with this explanation and conclude therefrom that any such action taken by Rodriguez would be after the decision to hire or discharge was made by Mora .4 Insofar as Rodriguez' direction of the work force is, concerned the record amply indicates that he performs this function as a conduit of the instructions and orders given him by Mora and not on the basis of his, Rodriguez', own independent judgment. In any event I find it unnecessary to reach or pass upon the question whether Rodriguez is a supervisor within the meaning of Section 2(11) of the Act. B. Sequence of Events Involving Union and Other Concerted Activities; Participation Therein of the Lopez Roger Brothers Jaime Lopez Roger, Francisco Lopez Roger, and Ruben Lopez Roger all began working for Respondent at Vieques about December 1971 s All worked under Rodriguez in the maintenance crew from December 1971 until their dis- charge on February 26, 1973. According to the laws of Puerto Rico the Employer is required to pay its employees a Christmas bonus on or about December 15 of each year. In 1972 the Christmas bonus was late. At about 7 a.m. on a morning in late December 1972 or in early January 1973-but after the checks were due-sev- eral employees including the three Lopez Roger brothers informed Rodriguez that they would not work until the bonus was paid. Rodriguez thereafter informed Mora of this threatened stoppage and likewise told Mora that Jaime E. Lopez Roger had communicated this threat to Rodri- guez. From this, Rodriguez told Mora, he,' Rodriguez, believed that Jaime Lopez Roger was the spokesman for the group. Thereafter the employees refused to work until they received their checks. All three of the Lopez Roger brothers participated in this stoppage. The checks were given the employees about 10 o'clock on that same morning and the employees later returned to work. This stoppage took place outside the main gate of the Naval station where employees wait to be picked up by Rodriguez to be driven to the place where they are to' work each day.6 Subsequently in late December 1972 or early January 1973 Jaime Lopez Roger spoke to Victor Emeric, a friend, informed Emeric that the employees were interested in "unionizing themselves" and inquired if Emeric knew of a labor organization. Emetic suggested the Charging Party explanation improbable. 5 Jaime and Francisco credibly testified they had worked a year and2 or 3 months. Rodriguez credibly testified that all three Lopez Roger brothers were working there when he, Rodriguez, began in December 1971. 6 My conclusion as to the location of this stoppage is based on the credible testimony of Rodriguez in this regard. 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and also said he would speak to its organizers so that the organizers would come and visit the-employees. In early January 1973, Edwin Melendez, an organizer for the Charging Party, spoke to some 12 employees of Respondent at the main gate of the Naval Station at Vieques about 3:30 in the afternoon. Melendez told the employees of the benefits of unionizing. He also passed out union authorization cards at this meeting. All three Lopez Roger brothers were present at this gathering. Francisco took several cards. While the employees were listening to and conversing with Melendez at the gate on this occasion, Rodriguez drove by so closely that the employees had to get out of his way to let him pass. Francisco Lopez Roger subsequently' visited several employees at their homes and tried to get them to sign up for the Union. Two weeks later a meeting was held at 9 a.m. on a Saturday in January 1973 at Legi's bar which is some distance from the Naval Base. Some 12 people attended this meeting including Francisco and Jaime Lopez Roger. Melendez, the union organizer, also attended and repeated the necessity of having employees execute authorization cards for the Union. Melendez then passed out cards some of which were taken by Jaime E. Lopez Roger. Jaime Lopez Roger then tried to sign up his fellow employees and succeeded in obtaining signed authoriza- tion cards from eight or nine of them at their homes. These signed cards were returned to Melendez by Jaime at another meeting at Legi's bar about 2 weeks later. In attendance at this later meeting were about eight employ- ees including Jaime Lopez Roger, as noted, and his brother Ruben. Also during this period, at least for several -months preceding their discharge, I find that all three Lopez Roger brothers frequently discussed the Union at the Naval Base when they arrived at work at the gate and while they were being taken out to the jobsite and that these conversations were reported to Mora by Rodriguez.7 Meanwhile on January 23, 1973, the Union filed a petition with the Board in Case 24-RC-4951 seeking a Board-conducted election among the Employer's employ- 7 Rodriguez credibly testified that the Lopez Roger brothers were sometimes late for work because they stopped on the way to the job to discuss the Union and politics. Mora credibly testified that Rodriguez reported these conversations as occurring on the way out to the jobsite and named Jaime and Francisco Lopez Roger as being among the participants. 8 Mora testified that his warning letters were given to the three brothers on this date and Rodriguez stated he, Rodriguez , warned them on this date. From this combination of evidence, I conclude that Rodriguez delivered Mora's warning letters to the three Lopez Roger brothers at that time. 9 The translation of this article follows: U. S. Navy Officer PRESSURE IS PUT ON NATIVES OF VIEQUES WHO WISH TO UNIONIZE By Victor Emeric Claridad" Reporter Vieques---A U_ S. Navy officer threatened with discharge 28 natives of Vieques, maintenance workers at the military base, because the latter have remained steadfast in their purpose to join Union Nacional de Trabajadores. Last Friday Raul Mora, a military man of Mexican background and a top official of the Dyneteria Corporation, a company that holds a contract to give maintenance to military installations, threatened with discharging the workers particularly the brothers Ruben , Francisco and Jaime Figueroa [sic in translation and in original ] spokesmen of the group. ees. An amended petition was filed on January 30, 1973, by the Union seeking an election limited to a unit consisting of the Employer's, service and maintenance employees at Vieques. On February 26, 1973, as will be discussed more fully hereinafter, the three Lopez Roger brothers were dis- charged. On March 8, 1973, the Regional Director approved a stipulation for certification upon consent election in Case 24-RC-4951 in which the election was scheduled to be held on March 21, 1973. The election was held, and the Union won and was certified by the Regional Director on March 29, 1973, as the exclusive bargaining representative of the Employer's service and maintenance employees at the Naval air facilities on Vieques. C. The Discharge of the Three Lopez Roger Brothers On February 22, 1973, Rodriguez gave the three Lopez Roger brothers identical warning letters from Mora.8 Each letter was addressed to the individual brother and stated it was from Mora. The caption of each letter reflected "Subject: Admonishment." The body of each letter was, as follows: Number 1. We have received various complaints of your bad conduct and also of the bad comradeship which you have shown lately. Number 2. It is necessary that all personnel of this company, work united and with good comradeship being that it would be beneficial to all. Number 3. We hope not to have to refer to this again; otherwise we shall be obliged to suspend your employment and salary for an indefinite time. On February 26, 1973, Mora saw a copy of the newspaper "Claridad" in which an article appeared, under the byline of Victor Emeric, which discussed the Respon- dent, Mora, and Respondent's employee-management relations.9 The article also quoted statements by Jaime Lopez Roger. After reading the article in his office, and apparently As tactics to prevent the workers from joining Union Nacional de Trabajadores, officer Mora, without consulting these employees, attempted, of his own accord, to cause them to become members of Union de Trabajadores de Muelles (UTM). The workers rejected this union because its actions denounce it as an "anti-labor and pro-employer union", according to what Jaime Lopez Roger, president of the Pro-Union Nacional Steering Commit- tee, stated. According to what Lopez Roger informed previously , the company had discharged from their employment several workers for having staged a stoppage in protest of the management 's refusal to pay them a Christmas bonus. Subsequently, and due to the combativeness displayed by the group, the 12 dischargees were reinstated in their jobs. "We shall remain firm in our position of giving our support to Union Nacional de Trabajadores no matter what company pressures we are subjected to. We were fired from our jobs once and our combativeness and firmness forced them to reinstate us. We are confident that victory will be ours", Lopez Roger ended up by saying." Although as noted in my brackets, supra, the article reflects the surname of the brothers as Figueroa , Jaime Lopez Roger acknowledged at the hearing that the names of his brothers appeared in the article. Jaime's name, as can be seen, appears correctly later in the article . Jaime also admitted at the hearing that he had spoken to Emeric about some of the items appearing in the article and that this conversation took place before the article appeared DYNETERIA, INC. 285 disagreeing with it, Mora told Rodriguez to tell the Lopez Roger brothers to come to the office, or if they did not wish to come to the office, he would give them 24 hours to correct the statements in the article or else he would take other action. Rodriguez went out to the jobsite, as directed by Mora, and spoke to Jaime Lopez Roger and Ruben Lopez Roger (Francisco being absent that day). After Rodriguez had repeated Mora's message, Jaime stated that he was aware of what was in the newspaper article because "we" were the ones who gave it to the newspaper. Jaime then declined to speak to Mora but stated that Mora could come out and speak to him. Jaime also told Rodriguez on this occasion that Mora was a "son of a b-h."-10 Rodriguez then returned to speak to Mora and told him of the'foregoing.11 At 3:30 that afternoon, the normal quitting time, Rodriguez spoke to Jaime and Ruben Lopez Roger and informed them that they no longer had work. The following day, February 27, 1973, Jaime Lopez Roger returned to the gate of the Naval Base and spoke to Rodriguez and asked him for a letter of dismissal. Rodriguez told Jaime Lopez Roger to wait until one was prepared. At 8:30 -Rodriguez returned to the, gate and handed Jaime Lopez Roger three identical letters, one each for himself and his brothers Francisco and Ruben. Each letter read as follows (as translated into English): February 26, 1973 Messrs: Francisco Lopez Roger Ruben Lopez Roger Jaime Lopez Roger We certify that you are being permanently laid off for the following reasons: a. Insulting your employer. b. Defaming your employer. c. Developing strike problems during working hours. d. Being disrespectful to your superior. e. Charging and stating that your employer is perse- cuting you which is not true. f. For intervening politically in union matters and as far as other things are concerned. Very truly yours, s/ Raul Mora RAUL MORA Representative Dyneteria Inc. Copy to: Francisco and Ruben, as he was requested to do by Rodriguez. None of the three Lopez Roger brothers has been reemployed by Respondent although Jaime and Francisco voted challenged ballots in the Board-conducted election in March 1973. D. The Respondent's Reasons for Discharging the Three Lopez Roger Brothers In assessing the reasons why the Employer discharged the -three Lopez Roger brothers, I will lay great stress upon these reasons as explained by Mora in his testimony or in documents he prepared. For, having found that Rodriguez did not possess the authority to discharge employees, I conclude that Mora is the only person with authority to discharge maintenance and housekeeping employees. And, I further find, based on Morals authorship of the warning letters of February 22, 1973, and the discharge letters of February 26, 1973, that he was, in fact, the Respondent official who made and carried out the decision to terminate the three Lopez Roger brothers. In examining the reasons proffered for the discharges I will first take the reasons presented in the discharge letters and then proceed to other reasons advanced by Respon- dent at the hearing. 1. From the discharge letters "Insulting your employer" and "Being disrespectful to your superior. " I conclude that these reasons are in fact supported by the evidence. Thus , it is clear that Jaime Lopez Roger called Mora a "son of a b-h" albeit not in Morals presence. Since Rodriguez repeated to Mora all other aspects -of Rodriguez' conversation with Jaime and Ruben Lopez Roger on the morning of February 26, I also conclude he informed Mora of the name calling in view of the obvious importance of this remark. Rodriguez also testified without contradiction that all three Lopez Roger brothers talked back to him and to Mora on the, job. For example, on the day after national election day (the day after November 7, 1972) Rodriguez and Mora spoke to several employees including the Lopez Roger brothers about their absence from work the day before. Jaime told Mora and Rodriguez on this occasion that he had not come to work because he did not want to. The brothers also "griped" on a number of occasions about the work they-were assigned to do. "Defaming your employer." As heretofore set forth, an article appeared in the "Claridad" of February 25, 1973, under the byline of Victor Emeric, which from its contents could well be considered by Respondent as unfavorable to it. And, as noted, Jaime Lopez Roger admitted speaking to Mr. Francisco Lopez Roger Emeric about Respondent prior to the appearance of the Mr. Ruben Lopez Roger article. Also, as I have found, the two Lopez Roger Mr. Jaime Lopez Roger brothers present on February 26, 1973, told Rodriguez on Jaime took the letters home and gave a copy to his brothers that date that they had given Emeric the material, which ro These findings are based on the essentially undisputed testimony of Rodriguez. Luris Lopez, who was present during part of the conversation, stated only that Jaime did not make the remark while Luris Lopez was present. Jaime did not deny calling Mora by this name in Rodnguez' presence; Jaime rather stated only that he had never "cursed" More " Mora testified specifically he was told that the Roger brothers were aware of the article and agreed with it. 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD appeared in the article and they agreed with it. Rodriguez reported this conversation back to Mora. While there is a question, whether the Lopez Roger brothers knew that Emeric was a reporter at the time they spoke to him, the fact remains that they did speak to Emeric, an outsider, about their employer and that their observations were obviously viewed by Mora as uncomplimentary to Respon- dent and to him personally. I conclude therefore that this reason is likewise supported by the evidence and, in the circumstances, that the newspaper article with its reference to the union activities of Respondent's employees, particu- larly the three Lopez Roger brothers, was the final straw in Mora's mind which caused him to discharge the Lopez Rogers, as will appear. "Developing strike problems during working hours." All three Lopez Roger brothers participated in the strike against the Respondent in connection with the late bonus checks in the latter part of December 1972 or early January 1973. They were in fact among the leaders of the strikers. And the fact that this reason appears in the discharge letters for each indicates unmistakeably Respondent's awareness of their participation and leadership. I conclude, therefore, that the record supports the conclusion that this was one of the real reasons for their discharge. "Charging and stating that your employer is persecuting you which is not true." The only evidence apparently bearing on this reason is the statement, adduced by counsel for Respondent in his cross-examination of Jaime Lopez Roger, that Jaime told Emeric that Mora had told Rodriguez that he, Mora, "was waiting for us to commit any fault so that he could throw us out." Neither Rodriguez nor Mora denied Mora's instant threat. Accord- ingly, I conclude that the threat was made 12 and any repetition of it was true. This reason (that the Roger brothers made an untrue statement about employer persecution) is not supported by the record. More will be said of this threat hereinafter. "For intervening politically in union matters and as far as other things are concerned. " This phrase-at least the use of the word "politically"-may have lost some of its flavor as translated into English. But it unquestionably refers to the Lopez Roger brothers "intervening" in "union matters." That the Lopez Roger brothers were union activists is amply supported by the record as previously recounted. And Mora's knowledge of these activities is evident not only from this entry in the discharge letters but also his admission that he was aware of the many discussions of the Union by the Lopez Roger brothers when they came to work each day and were on their way to the jobsite. In these circumstances, I conclude that the union activities of the Lopez Roger brothers constituted, in fact, one of the reasons why Respondent discharged them. i2 While Rodriguez' repetition of the Mora threat is, strictly speaking, hearsay, the testimony in regard to it was adduced without objection. And I am satisfied that the threat, when considered in the light of the prior and subsequent incidents, is consistent with the inherent probabilities of the entire sequence of events. The mention of the threat in the Emetic article itself which was, of course, published before the charges herein were filed, lends some support to the foregoing conclusion. Also Mora and Rodriguez acknowledged that warnings were given the three brothers on different occasions. In any event when hearsay evidence is admitted without objection "it is to be given its natural probative effect as if it were in law admissible" and, where not controverted, carries the force of substantial Moreover, in a letter to the Regional Office for Region 24 of the Board, explaining Respondent's position regard- ing the charges which had already been filed in this case, Mora stated that the main reasons for discharging the Lopez Roger brothers were "clearly explained" in an attached copy of the same discharge letter given to each which has previously been referred to.13 2. The other reasons advanced by Respondent at the hearing for the discharge of the Lopez Roger brothers The alleged poor" quality of their work. At the hearing Mora testified that Jaime and Francisco Lopez Roger were "poor" workers in that they had to be transferred from job to job based on the complaints of Rodriguez. More specifically, Mora said Francisco was demoted from a working foreman position, however this had occurred some time before Francisco's discharge. Mora also said he had warned all three brothers four or five times orally or in writing (e.g., the letter of February 22, 1973) about their poor work. Rodriguez gave, as an example of Jaime's poor work, that Jaime and others had to be transferred from one cleaning job because it was reported that the job was not finished on time. Others were also transferred from this assignment however but no others were shown to have been discharged because of it. In view of the nonspecific nature of the allegation of their "poor" work and the lack of persuasiveness in the example cited I am not satisfied that "poor" work was a reason for the discharge of the three brothers. Moreover, the only written warning put in evidence speaks of "bad conduct" (not "poor work") and "bad comradeship" which, although somewhat ambiguous, is consistent with the "union activities" reason advanced in the letter of discharge (viz, association with the Union, since it is apparent from the discharge letters that the Employer was opposed to such association). Tardiness of the three brothers. There is testimony by Mora, denied by Jaime Lopez Roger, that Jaime came to work late on numerous occasions and there is also evidence that Francisco was late. I do not find that tardiness played a part in the discharges. The brothers were not shown to have been warned about it, it was not mentioned in the discharge letters and other employees have been late, according to Rodriguez, but no one else was shown to have been discharged for this reason. The political discussions of the Lopez Roger brothers at the job. While Rodriguez testified that the Lopez Roger brothers engaged in frequent political discussions at work evidence sufficient to support a finding. Local 84, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO (South Texas Building Company), 129 NLRB 971, 979 (IR fn. 12 and cases cited therein). 13 In view of the discharge letter and this letter to the Board, I do not credit Mora's self-serving declaration at the hearing that he did not discharge the Lopez Roger brothers because of their union activities. Nor do I assign any weight to his belated attempt in the instant letter to the Board to explain that this last reason was their -political" (and not their "union") activities as each discharge letter states. I will, however, consider their alleged "political" activities as a separate reason. DYNETERIA, INC. 287 and had been warned about it, I fwd no mention of this reason in Mora's testimony.14 Further this reason is not mentioned in the discharge letters. Distribution of the newspaper "Claridad" at the jobsite. Mora stated that the three brothers were passing out "Claridad" on February 26, 1973. Rodriguez testified that they had brought this newspaper to the site that day and previously at the tune of the work stoppage over the late Christmas bonus checks. Jaime Lopez Roger denied passing out "Claridad" at the site. I find it unnecessary to resolve this conflict in the testimony because I do not believe this matter played a part in the discharges. For Mora did not assign this as a reason at the hearing nor did he mention it in the discharge letters.15 Alleged threats by one or all of the brothers "to get Mora" outside the gate. Mora testified that he was told by Rodriguez that all three Lopez Roger brothers stated that they would "see him on the street in Vieques and that they were going to get" him. Mora stated that these threats were reported to him as occurring at the time of the Christmas bonus strike and also after the discharges on February 26. Rodriguez testified first that Jaime Lopez Roger said he "was going to see Mora outside to fix him," later that Jaime said he would "get Mora outside," and that these threats were made at the time of the Christmas bonus strike and again on the day of discharge at about 11 o'clock in the morning (before the discharges took place). However, elsewhere in his testimony, Rodriguez stated that the morning conversation between the two brothers (who were present that day) and Rodriguez consisted of a discussion of the "Claridad" article of Emeric, Jaime's suggestion that Mora come to speak to them and Jaime's calling Mora a "son of a b-h." Rodriguez did not mention that the threat was made in this conversation although pressed by the General Counsel to answer the question whether anything else was said. Jaime Lopez Roger dewed threatening "to get Mora outside." I find it unnecessary to unwind this credibility knot, because I do not' find that the alleged threat or threats constituted a reason for the discharges. For, taking the testimony of Mora, who effected the discharges, the first threat had occurred some 2 months before and was obviously ignored. The second threat, per Mora, was made after the discharges. Finally the threats are not mentioned in the discharge letters. Concluding Findings I have found that the only reasons for the discharges which are supported by the record are: (1) the insulting and disrespectful conduct of the brothers, particularly 14 In the absence of testimony by Mora on this subject I attach no weight to his letter to Regional Office on March 11 in which he mentions this "reason" and, in any event, I have found the March I 1 letter to have been a belated attempt to avoid the implication in each discharge letter that the Lopez Roger brothers were discharged because of their union activities. 15 Again I attach no weight to Mora's reference to this matter in his letter to the Regional Office for the same reasons mentioned in Ins 13 and 14. 16 N.L R.B. v Washington Aluminum Co., 370U-S. 9, 15(1962); N LR.B. v. Mackay Radio & Telegraph Co, 304 U.S. 333, 344 17 Notwithstanding the language of Emetic's newspaper article , it is not clear from the entire record whether the three brothers were briefly discharged at the time of the Christmas bonus strike . Further no unfair Jaime; (2) the comments by Jaime to Emeric at least some of which were published in "Claridad," (3) the participa- tion of the brothers in the Christmas bonus strike and (4) their union activities. Of these four reasons it is clear that at least two reasons, advanced by Respondent in the discharge letters and supported by other evidence, were unlawful, i.e., the brothers' participation in the Christmas bonus strike and their subsequent union activities. Respondent argues that the strike was unlawful because it was unjustified, i.e., unnecessary, because the checks were on their way. The gist of Respondent's argument thus seems to be that the strike was not a labor dispute because it was ill-advised or unwise. But this type of contention has been rejected by the Supreme Court on at least two occasions.16 Hence I reject it here. Moreover, the strike was not shown to be violent nor was it in breach of a collective-bargaining agreement. I, therefore, conclude that the Christmas bonus strike was a legitimate labor dis- pute.17 Insofar as the brothers' union activities are concerned, the discharge letters do not specify whether Respondent was discharging them because of their union activities outside the base or their union activities on the base. But even if Respondent were referring to the activities on the base, I note that there is no evidence that Respondent had a no-solicitation rule, nor that Respondent through Mora or Rodriguez had warned the brothers not to discuss the Union at work, nor, in any event, that discussion of the Union by the brothers when they arrived at work or were being taken out to their work sites (the times described by Mora when he was aware such activities occurred), in any way interfered with their own work or the work of their fellow employees. It is obvious that in these discussions the three brothers were taking the side of the Union.18 I conclude on the basis of the foregoing, particularly the discharge letters, that Mora was long irked by the participation of the three brothers in the Christmas bonus strike and their subsequent efforts to encourage their fellow employees to join the Union. And, indeed as Mora told Rodriguez, he, Mora, was looking for the three brothers to "commit" a "fault" so that he could "throw" them "out." The publication of Emeric's newspaper article and its mention of the participation of the three brothers in union activities supplied Mora with the "fault" he was looking for to carry out his threat. I find on the basis of the foregoing, that Respondent's discharge of three Lopez Roger brothers was based in substantial part on their union activities and that such discharges were therefore in violation of Section 8(a)(3) and (1) of the Act.19 I further find, on the basis of the foregoing, that the labor practices are alleged based on any discharges at that time; hence I make no findings in this regard. 18 Respondent points out in its brief that Ruben Lopez Roger has no further interest in this proceeding because he did not come to the hearing. I do not deem his absence to be of any significance. For I am aware of no requirement-and Respondent cites none-for an individual to appear at an unfair labor practice hearing dealing with alleged discrimination against him. W James Hoomatan d/b/a Chicago Master Mattress and Furniture Company, 196 NLRB 579: N L.R B. v. Great Eastern Color Lithographic Corp., 309 F 2d 352, 355 (C A. 2,1962), enfg. 133 NLRB 911, cert. denied 373 U.S. 950 (1963). 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharge of the three Lopez Roger brothers was also based in substantial part upon their participation in the Christ- mas bonus strike. Since this strike was a concerted activity protected by Section 7 of the Act, and since a substantial reason for their discharge was because they participated in this strike, `I also find, based on this entirely separate reason, that their discharges were in violation of Section 8(a)(1) 20 of the Act 21 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activities of Respondent, set forth above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY The recommended order will contain the conventional provisions involving findings of interference, restraint, and coercion and unlawful discharge in violation of Section 8(a)(3) and (1) of the Act. This will require Respondent to cease and desist from the unfair labor practices found and to post a notice to that effect in English and in Spanish which will also state the affirmative action Respondent will be required to take to remedy its discharge of the three Lopez Roger brothers. Thus, Respondent will be required to offer Jaime E. Lopez Roger, Francisco Lopez Roger, and Ruben Lopez Roger reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges. Each will be made whole for any loss of earnings he may have suffered by reason of the discrimination against him by payment to him a sum of money equal to that which he would have earned from the date of the initial discrimination against him to the date of the offer of reinstatement, less net earnings, if any, during such period, to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289, with 6 percent interest thereon as prescribed by Isis Plumbing & Heating Co., 138 NLRB 716. It will also be recommended, in view of the nature of the unfair labor practices in which Respondent has engaged (see N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536), that Respondent be ordered to cease and desist from infringing in any manner upon the rights guaranteed employees by Section 7 of the Act. CONCLUSIONS OF LAW 1. Respondent is engaged in commerce and the Union is -a labor organization all within the meaning of the Act. 2. By discharging Jaime E. Lopez Roger, Francisco 20 N.L.R B v. Washington Aluminum, supra; Carlson Corporatio , 195 NLRB 218 (TXD), enfd. 83 LRRM 2392 (C.A. 1, 1972) (not reported by the court). 21 Respondent's motion to dismiss the complaint made near the conclusion of the hearing and taken under advisement by me at that time, is hereby denied, consistent with my findings, supra. 22 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the Lopez Roger, and Ruben Lopez Roger, in each instance because of their activities on behalf of the Union, the Respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 3. By discharging Jaime E. Lopez Roger, Francisco Lopez Roger, and Ruben Lopez Roger, in each instance because of their participation in concerted activities protected by Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning. of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following: RECOMMENDED ORDER22 Respondent, Dyneteria, Inc., its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in, or activities in behalf of, Union Nacional de Trabajadores, or in any other labor organization, by discriminating in regard to hire and tenure of employment or in any other manner in regard to any term or condition of employment of any of Respon- dent's employees in order to discourage union membership or activities. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act, except to the extent such rights may be affected by an agreement requiring membership in a labor organization, as authorized in Section 8(a)(3) of the Act, as amended. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer Jaime E. Lopez Roger, Francisco Lopez Roger, and Ruben Lopez Roger immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other nghts and privileges and make them whole for any loss of pay they may have suffered as the result of the discriminatory discharges, in the manner set forth in "The Remedy" section herein. (b) Preserve and, upon request, make available to the Board or its agents for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its place of business in Vieques, Puerto Rico, copies of the attached notice marked "Appendix" 23 and copies of a Spanish translation of the same notice. Copies findings, conclusions, recommendations and Recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions and order, and all objections thereto shall be deemed waived for all purposes 23 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." DYNETERIA, INC. 289 of this notice, in English and Spanish, on forms provided by the Regional Director for Region 24, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced or covered by any other material. (d) Notify the Regional Director for Region 24, in writing within 20 days of the receipt of this Order, what steps Respondent has taken to comply herewith. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government labor organization, as authorized in Section 8(a)(3) of the National Labor Relations Act, as amended. WE WILL NOT discharge you, or take other reprisal action against any of you, because you engage in legally protected concerted activities or because you join, support, or engage in organizational activities on behalf of Union National de Trabajadores, or any other union. WE wiLL offer to reinstate Jaime E. Lopez Roger, Francisco Lopez Roger, and Ruben Lopez Roger to their respective jobs with full seniority and all other rights and privileges as the Board has found that they were discharged because they engaged in protected concerted activities and because they supported the organizational campaign of the above-named union. WE WILL also make up all pay Jaime E. Lopez Roger, Francisco Lopez Roger, and Ruben Lopez Roger lost because of their discharge with 6 percent interest. DYNETERIA, INC. (Employer) After a trial at which all sides had the chance to give evidence it has been decided that we, Dyneteria, Inc., have violated the National Labor Relations Act and we have been ordered to post this notice. The National Labor Relations Act gives you, as employees, certain rights, including the right to engage in concerted activities, and the right to self-organiza- tion, to form, join or help unions, and to bargain through a representative of your own choosing. Accordingly, we give you these assurances: WE WILL NOT do anything which interferes with your rights above, except to the extent that said rights are affected by an agreement requiring membership in a 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 concern- ing this notice or compliance with its provisions may be directed to the Board's Office, Pan Am Building, 7th Floor, 255 Ponce de Leon Avenue, Hato Rey, Puerto Rico 00919, Telephone 809-622-0225.