Manuel San Juan Co., Inc.

812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Manuel San Juan Company, Inc., Commonwealth In- surance Company and United Adjustment Bureau, Inc. and Gloria Rivera de Nieves and Gremio Puer- torriqueno de Trabajadores.'Cases 24-CA-3314 and 24-CA-3318 June 21, 1974 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On January 30, 1974, Administrative Law Judge Paul L. Harper issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel 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 briefs 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 Manuel San Juan Company, Inc., Commonwealth Insurance Company, and United Adjustment Bureau, Inc., San Juan, Puerto Rico, its officers, agents, successors, and assigns, shall take the action set forth in the Administrative Law Judge's recommended Order. 1 The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C.A 3, 1951). We have carefully examined the record and find no basis for reversing his findings DECISION STATEMENT OF THE CASE PAUL L. HARPER, Administrative Law Judge: This case was heard in San Juan, Puerto Rico, on October 31, 1973, and November 1, 2, 5, 7, 8, and 9,1973. The charge in Case 24-CA-3314 was filed on February 24, 1973, and amended on October 2, 1973. The charge in Case 24-CA-3318 was filed on February 23, 1973. Order consolidating cases and complaint and notice of hearing was issued on October 3, 1973. The complaint presents questions as to whether the Respondent violated Section 8(a)(1),(3), and (4) of the National Labor Relations Act, as amended. In its answer and by stipulations entered at the hearing the Respondent admitted certain facts with respect to the jurisdictional aspects of the case but denied that it had committed any unfair labor practices. At the hearing all parties were represented by counsel and were given full opportunity to examine and cross- examine witnesses. At the conclusion of the hearing, the parties waived oral argument. Briefs were submitted by the General Counsel and the Respondent. Upon the entire record in the case, and the briefs of counsel, including my observation of the demeanor of witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE EMPLOYER INVOLVED The complaint alleges and the answer admits that Manuel San Juan Company, Inc., Commonwealth Insur- ance Company and United Adjustment Bureau, Inc., are, and at all times material herein, have been, a single integrated enterprise engaged in the insurance business with principal place of business in San Juan, Puerto Rico. During the year preceding issuance of the complaint, a representative period, the employer received gross income from retail sales amounting to more than $500,000. During the same period of time it purchased and caused to be delivered to its place of business in Puerto Rico directly from points outside thereof materials and supplies valued in excess of $50,000. Upon the foregoing facts, the Respondent concedes, and I find, that Respondent is an employer within the meaning of the Act. H. THE UNION INVOLVED Gremio Puertorriqueno de Trabajadores, located in San Juan, Puerto Rico, herein called the Union, is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Issues The complaint alleges, in substance, that: (1) On February 9, 1973, Respondent discharged Hector Delgado, Angela Quinones, Luisa Cumba, and Maria Lopez because of their membership and activities in the Union de Tronquistas de Puerto Rico, Local 901, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, herein Teamsters and/or because of other lawful concerted activities; (2) On February 14, 1973, Respondent refused reinstate- ment, upon unconditional application, to six unfair labor practice strikers; and (3) On February 21, 1973, Respondent discharged Charging Party Gloria Rivera de Nieves (Case 24-CA-3314) because of her membership and interest in the Union and/or because of her participation in the strike or other concerted activities; that thereafter Respondent 211 NLRB No. 109 MANUEL SAN JUAN CO. refused to grant legally required severance pay to Rivera because she filed the subject unfair labor practice charge. Background The General Counsel introduced evidence of certain events occurring in the spring and summer of 1972, prior to the 10(b) cutoff date on or about August 22, 1971, for the purpose of shedding light on Respondent's alleged unlaw- ful conduct, including its motivation for discharging and refusing to reinstate the individuals named in the com- plaint, in February 1973. Sometime in the spring of 1972 the Teamsters conducted an organizational campaign among Respondent's employ- ees. Credible testimony reveals that Hector Delgado and Angela Quinones were most active in getting other employees to sign union authorization cards and otherwise engaged in active support of the Teamsters' campaign. As a result of this campaign the Teamsters on April 13, 1972, filed a petition for certification with the Board's Regional Office in Puerto Rico. The petition was with- drawn on July 18, 1972.1 The General Counsel contends that certain events took place at meetings of employees and management in April, May, and June 1972 which led to the withdrawal of this petition and therefore are pertinent to the issues in this case. Such meetings took place at the Bankers Club, a restaurant in the same building occupied by Respondent, on several occasions, perhaps three or four, during April, May, and June 1972. It is undisputed that the principal subject matter of the discussions concerned the terms and conditions of employment of Respondent's employees. It is also clear from the composite and credible testimony of several witnesses that Delgado was quite outspoken at these meetings. As noted above Delgado, along with Quinones, were the most active employees supporting the organizational efforts of the Teamsters in 1972. Both Delgado and Quinones were subjected to interrogation about their union activities. On one occasion Delgado was subjected to threats of physical violence. These matters are discussed more fully below under the heading of each discriminatee involved. All of the above-alleged conduct attributed to the Respondent occurred prior to the withdrawal of the Teamsters petition on July 28, 1972 and thus prior to the 10(b) cutoff date of about August 22, 1972. It was offered by General Counsel as background evidence to support the theory of unlawful motivation on the part of Respondent in discharging these employees in February 1973. Sometime in January 1973 Delgado began talking to representatives of the Union and some employees about possible renewed interest in union organization. This renewed interest was apparently generated because of Respondent's continued delay in taking any action on the employees' continued requests for salary increases. The record evidence however does not establish that this activity became known to management before February 9, 1973. Whether it suspected such activity or not the evidence reveals that on February 8, 1973, Respondent 1 The parties stipulated such a petition was filed in Case 24-RC-4675 and withdrawn. 813 called another general meeting of its employees. At this meeting Respondent's president, San Juan, Jr., announced that the desire and request of the employees for a salary increase was under study but that it would be several months in the future before the results of such study was known. The reaction to this announcement was predictable and in fact a number of employees left the meeting before it was over. The announcement generated considerable dissatisfaction among the employees. The next morning, February 9, 1973, on coming to work and while riding an elevator along with a number of other personnel of Respondent, including his former supervisor Jaime Cuyar and also Josefina Cacho, secretary to Respondent's personnel director, Delgado announced to this group his intention of renewing his organizational efforts. He was fired this same day along with Quniones, Lopez, and Cumba. On February 12, 1973, the employees formed a picket line at the entrance to the office building occupied by Respondent. The evidence establishes the sole reason for the strike was because of the discharges of the four individuals on February 9. On February 14 all employees made unconditional applications to return to work on advice of the Union's representative. Six strikers were refused reinstatement 2 Whether the strike was an unfair labor practice strike is one of the issues in the case. Charging Party Gloria Rivera de Nieves was discharged February 21, 1973. She was denied severance pay and General Counsel alleges this is a violation of Section 8(a)(4) of the Act. The separate issues outlined above will be discussed under the heading of the employee or employees involved. Hector Delgado Delgado was first employed by Respondent in June 1970, discharged February 9, 1973. During this period he progressed from the positions of accounts receivable clerk, cancellation analyst, and service representative, to that of accounts receivable analyst at the time of discharge. His salary ranged from $275 to $350 monthly. Respondent contends that Delgado's position was eliminated due to an economy plan; that such a plan was under study by a management committee during October, November, December 1972 and January 1973; that the execution of the plan was precipitated by the decision to discharge Angela Quinones. Respondent's stated reasons for its action must be weighed however in the light of all the circumstances surrounding the discharge, especially Delgado's known union activities and the fact that he was scheduled at the time of discharge to replace another employee during her upcoming 2 to 3 week vacation. Also consideration must be given to the fact that Respondent's records introduced to show an economic necessity for a payroll cut back failed to reveal such necessity; nor do I believe Respondent's afterthought that in any event such a reduction of personnel was necessary to fulfill a possible across-the- board salary increase, since it had just announced the day 2 Awildo Soto; Myriam Ramos-Gonzalez; Gilds Velez; Ana Hilda Rodriguez; Jorge Olivo ; Efrain Sanchez-Pinto. 814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD before the discharges that such an increase was merely under study and the results of the study would not be known for several months. The record evidence establishes beyond doubt that Respondent was well aware of Delgado's past activities on behalf of the Teamsters union. Delgado testified regarding a conversation with Respondent's President San Juan, Jr., sometime in April or May 1972. Orlando Lomba, adminis- trative manager (assistant to the president since January 1973) was present. The conversation occurred in Mr. San Juan's office. Delgado testified that San Juan told him if he "continued what [he] was doing he would take measures against [him] (admitted reference to Delgado's union activities) that San Juan became agitated and told him "for $500 I could have somebody bum your car, for $1000.. . have your bones ground and your car burned, and for more money, your car, you, and your family" . . . that at this point San Juan "took a pistol and put it at his waist and another one and put it on the desk." When asked what his response was Delgado testified San Juan "did not let me say anything." San Juan admitted calling Delgado to his office in the presence of Lomba because he had heard that Delgado was distributing a Teamsters circular among the employees. He testified he had not seen the circular at the time but that "by some expressions that had been made by some of the people in the office" he considered the circular contained "implied threats to the safety of the employees." San Juan denied displaying any fire arms and denied telling Delgado that for $500, $1000 or more he could have his car and house burned. He further denied that he told Delgado he could have him "beat up." This was in response however to Respondent counsel's specific questions and use of the specific words "beat up." Again counsel asked him "Did you say anything in that respect?" and the witness answered "No." Still again counsel asked San Juan "Did you at any time threaten Mr. Delgado with physical harm during that meeting or at any other time? The witness once again replied "No." Apparently the witness would distin- guish between "beating up" or "physical harm" and "having Delgado's bones ground" because he admitted, during one of the meetings with his assembled employees at the Bankers Club, that in response to Delgado's request that he repeat the threat in the presence of the group, "I said it was not the bones, it was the little bones." He further testified he considered the whole matter "in the form of a joke." Apparently Delgado did not consider it a joke when summoned to the office of the highest executive of the company in the presence of another official. Moreover I do not believe Mr. San Juan was really concerned by any reports of alleged threats of violence to other employees on the part of Delgado or any other union adherent. He could recall the name of only one employee alleged to have been subjected to such threats and that was an employee by the name of Aguayo. Aguayo was referred to in the Teamsters circular as "Guayo" or "grater," apparently a pseudonym for a stooge of management. San Juan admitted he spoke to Aguayo about the reports of such threats after his confrontation with Delgado. Further- more the alleged "violence" between Delgado and Aguayo was described by San Juan as his having heard these two employees had "strong expressions" on one or more occasions. Furthermore I am unimpressed with San Juan's testimony he considered his remarks about crushing Delgado's bones merely a joke when he admitted that "in Puerto Rico crushing your bones means something like killing a person." In view of the contradictory nature of San Juan's testimony as well as certain admissions I believe Delgado's version of this episode the more accurate. I find San Juan's remarks to constitute evidence of his knowledge of Delgado's interest and activity in the Teamsters union as well as his hostility to such activity. However, since the event occurred outside the limitations of Section 10(b) of the Act no finding of an unfair labor practice is made. Nevertheless I find it establishes a background which throws light on Respondent's unfair labor practices found hereinafter to have occurred in February 1973. As further background regarding Delgado's union activities San Juan admitted that at one or more meetings with his employees at the Bankers Club in the spring and summer of 1972 Delgado "did talk about benefits that they would have by having a union, why a union was better ..."and that the company "could give them increases in salaries and what not." It is thus clear that Delgado was well known by Respondent as a strong adherent of union organization at the time of his discharge. The question to be resolved is what actually motivated Respondent to discharge Delgado on February 9; for the reasons asserted by Respondent or because of his past and/or renewed interest in organizing the employees just prior to his discharge? As noted above Delgado began to take a renewed interest in union organization in January 1973. This time his contacts were with the Charging Party rather than the Teamsters. The evidence however does not establish that Delgado's renewed interest and activity came to the attention of management personnel until the morning of February 9, 1973, the date of his discharge. It is significant to note however that although San Juan denied knowing about the "Gremio specifically" he did admit that in January 1973 he "heard that there was some unrest among the employees in general." On February 8, 1973, as already mentioned, Mr. San Juan called a general meeting of his employees late in the afternoon on a Thursday, just before quitting time. The next day, February 9, was payday. San Juan announced to the employees that their request for a salary increase (which had been under study since October 1972) was still under study and because of certain expenses and losses, including a Thanksgiving turkey given to each employee, it would be at least another 3 months before any salary adjustments could be made . Some of the employees left the meeting before it ended. On February 9 Delgado came to work as usual about 7:50 a.m. While riding the elevator with several fellow employees, including Supervisor Jamie Cuyor, Delgado announced his intention of renewing his union organiza- tional efforts among the employees. He testified he said to those present "this was happening to us [San Juan's announcement of further delay in considering the employ- ees' request for salary increases] . . . because we had not MANUEL SAN JUAN CO. 815 brought in the Union and that I intended to bring it back again." He was discharged about 4:45 p.m. the same day. Supervisor Ctiyor testified in answer to the question if he overheard Delgado's remarks in the elevator as follows: "Frankly, I do not remember." At another point in his testimony he testified he didn't remember if he was even in the elevator with Delgado at the time Delgado made his remarks about renewing union activities. Yet on cross- examination his response to the question of whether he remembered reporting such an incident to higher manage- ment was "No, I didn't tell anyone." It seems clearly apparent from this testimony Cuyor overheard Delgado's remarks. I so find. I further find Cuyar's knowledge is attributable to Respondent .3 Based on the above considerations, I find Respondent's asserted reasons for discharging Delgado on February 9, 1973, to be pretextual of its unlawful motivation. Delgado's union activities, both with respect to the Teamsters, and later the Union herein, were well known to Respondent. Respondent's hostility toward such activity is clearly established by credible evidence in the record. I find that Respondent's announcement to employees on February 8, 1973, to the effect that consideration of salary increases would be further delayed for a period of months triggered predictable dissatisfaction among the employees and that when it learned of Delgado's announced intention of renewing organizational efforts it immediately took steps to thwart such efforts. I find such unlawful motivation in discharging Delgado to be in violation of Section 8(a)(3) and (1) of the Act. Angela Quinones Quinones was first employed by Respondent on Septem- ber 10, 1971. She was employed as cashier and remained in that position until her discharge on February 9, 1973. Respondent contends she was discharged for inefficiency and other reasons discussed below . General Counsel contends Quinones was terminated because of her known past organizational activities on behalf of the Teamsters and the assumption by Respondent that she would again join with Delgado in renewed organizational efforts which became known to Respondent on February 9; that her discharge, along with that of Delgado, Lopez and Cumba was designed "to nip the union movement before it flourished." The credible evidence contained in the record establishes that it was Quinones who contacted the Teamsters in the spring of 1972; obtained a supply of union authorization cards; handed Delgado and two other employees a supply of such cards; personally obtained signatures of other employees and returned all the signed cards to the Teamsters. As a result a petition for certification of representatives was filed with the Board's Regional Office in Puerto Rico on April 13, 1972. It is evident that Respondent became aware of Quinones' union activities, as shortly after the petition was filed she was called in to Mr. San Juan's office in the presence of Mr. Orlando and questioned about her reasons for wanting union represent- ation. As in the case of Delgado this evidence furnishes only a background to throw light on Respondent's motivation in discharging Quinones and the others on February 9, 1973. Respondent, by memo dated February 9, 1973, from assistant to the president, Lomba, to Personnel Officer Sara de la Vega, stated "On February 9, 1973, management made the decision to separate the above mentioned employee from her position as cashier due to inefficiency." In addition the memo contained comments about a prior memo directed to this employee in June 1972 "wherein serious mistakes committed by her are enumerated"; references to other interoffice memoranda concerning Quinones' performance; and "Lastly, on February 8, Mr. Escobar Zayas, comptroller, balanced the petty cash box account and, as shown on the attached report, there was a difference." In his brief counsel for Respondent states "Angela Quinones . . . was discharged due to a shortage in the petty cash . . . which was found on February 8, 1973, by the auditors." Respondent's counsel points out several other reasons for Quinones' discharge, including not following instructions by allowing "people who had nothing to do with her functions within her workplace" (cashier's cage); and inefficiency because of errors made in her receipt book and errors made in certain bank deposits. It is not clear in the record when the alleged acts of inefficiency occurred but Respondent admits no written reprimands concerning Quinones postdates June 8, 1972, a period exceeding 8 months before her discharge. Moreover the evidence establishes that Quinones received a $25 a month raise in salary in October or November 1972. I can find no substantive evidence to support Respondent's contention that such alleged inefficiency played a control- ling part in the decision to discharge this employee. What then did the "shortage" have to do with Quinones' discharge? First how much was the shortage and the facts surrounding the shortage. The amount turns out to be the handsome sum of 25 cents . Even more interesting are the circumstances relating to the "shortage." Quinones was the custodian of petty cash as part of her duties of cashier. She freely admitted to the auditor (otherwise a near impossibil- ity to prove) that she used the 25 cents as bus fare4 with full intention of replacing the quarter the next day. Under these circumstances could Respondent have been truly concerned about this alleged "shortage?" I think not. Moreover, I believe, and find, that the alleged past errors and inefficiency of this employee were asserted by Respondent to camouflage its true motivation in discharg- ing her. That Quinones and Delgado were associated in the mind of Respondent is revealed by Respondent counsel's assertion in his brief that Delgado's discharge was "precipitated by the decision to discharge Angela Qui- nones on February 9, 1973." The only mutual activities between Delgado and Quinones reflected in this record is their interest and activity in union organization. Also the assertion the decision to discharge Quinones was made on February 9 contradicts Internal Auditor Adrian Torres' 3 Red Line Transfer & Storage Company, Inc., 204 NLRB No. 3; also see Wiese Plow Welding Co., Inc., 123 NLRB 616. 4 Bus fare in Puerto Rico was 25 cents at the time of the heanng. 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (chief accountant in February 1973) testimony such decision was made "also in January." Based on all the above considerations , including the contradictory and pretextual reasons asserted by Respon- dent for Quinones' discharge, I find Quinones' discharge, as in the case of Delgado, was motivated by Respondent's desire and intent to abort its employees renewed interest and activity in union organization , thereby violating Section 8(a)(3) and (1) of the Act. Maria Belen Lopez This individual worked for Respondent for a period of about 4 years. She was discharged February 9, 1973. General Counsel alleges it was because of her past interest and activity in the Teamsters and renewed "concerted activity" just prior to her discharge . Respondent's defense is two-fold (1) that the discharge resulted from economic considerations, and (2) that Lopez was a supervisor within the meaning of the Act at the time of her discharge. There is little doubt in my mind that Lopez, as well as Luise Cumba discussed below , were both caught up in Respondent's efforts to rid itself of the known principal union activists among its employees . However, inasmuch as I find both Lopez and Cumba were supervisors within the meaning of the Act, further discussion of the question whether their discharges were or were not unlawful seems superfluous. The discharge of a supervisor is unlawful only under very special circumstances which are not present in the subject case. Thus the initial point for determination is whether, as of the date of her discharge on February 9, 1973, Lopez, who obviously did not exercise major management functions, did have enough supervisory indicia to constitute her a supervisor under Section 2(11) of the Act. It is well established such definition must be read in the disjunctive. The General Counsel adduced evidence tending to show that Lopez possessed only minimal authority to direct the work of other employees and did not have the power to exercise independent judgement to carry out her duties as assistant to the accountant. The evidence adduced by Respondent's managerial witnesses tend to show just the opposite. Although it was Respondent that presented the testimony of two witnesses who worked directly under Lopez, I believe, and find, that their testimony on this subject is the more objective and I fully credit their account of their employment relationship with Lopez. Carmen Montalvo, accounts payable clerk, testified that when she worked in the accounting department, for a period of about a year from February 21, 1971, Lopez was her immediate supervisor ; that she received all her work assignments and instructions from Lopez; that she report- ed to Lopez any reason for being absent or late for work; that Lopez determined whether or not she worked overtime; that on occasions Lopez would reprimand her and she observed Lopez reprimanding other employees in the department; that at the end of her probationary period of 90 days Lopez reported her satisfactory progress to the then Administrative Manager Lomba; that Lopez deter- 5 N.L.R.B. v. Elliott- Williams Co., 345 F.2d 460, 463 (C.A 7, 1965). e N.L.R.B. v. Fullerton Publishing Company, d/bla Daily News Tribune, mined priorities of various work assignments ; checked all her work and on occasion assigned her to perform the duties of the cashier in the absence of the regular cashier. Additionally Montalvo testified that Torres (admitted supervisor of Lopez) was in charge of other sections of the accounting department including accounts receivable, the IBM section, and coding section. Maria Teresa Ortez testified she worked in the book- keeping section of the accounting department as secretary from January 1970 to July 1972. She testified she received work assignments from both Torres and Lopez , depending on the nature of the work assigned ; that Lopez would determine the priority of the work to be performed; that she obtained permission to be absent or late from both Lopez and Torres on each such occasion; that overtime work was assigned to her by either of them ; and that on occasion Lopez would reprimand her with respect to work assigned to her by Lopez. Thus the credited testimony of Montalva and Ortez establish that Lopez, during material times herein , respon- sibly directed the work of other employees in the bookkeeping section of the accounting department; had the authority to assign and reassign work to section employees ; and to select employees to work overtime. In performing such functions she exercised independent judgment. It is well established that the existence of any one of the indicia set forth in Section 2(11) of the Act is sufficient to support a finding that the one possessing it is a supervisor.5 I have also considered those cases in which the Board considers the ratio of supervisors to employees in determining supervisory or nonsupervisory status . Howev- er the fact that there were only two or three employees at any given time under the direction of Lopez is not a decisive factor standing alone.6 Moreover, it is noted in this connection that Respondent stipulated Maria Melen- dez to be a supervisor although there were only one or two employees under her direction. Based on all the above considerations I find that at the time of her discharge Lopez was a supervisor within the meaning of Section 2(11) of the Act. Accordingly, I recommend the complaint allegations pertaining to Lopez be dismissed. Luisa Cumba This individual, with tenure of over 10 years with Respondent, was discharged February 9, 1973, along with Delgado, Quinones, and Lopez. As stated above it is almost certain, as in the case of Lopez, that she was caught up in Respondent's efforts to purge itself of all known union activists . The threshold question however, as with Lopez, is whether or not Cumba was a supervisor at the time of her discharge. The General Counsel contends that Cumba was not clothed with genuine supervisory authority pointing out that she punched a timeclock and never attended regular meetings of higher management officials. There is no dispute over these two points. Cumba did in fact punch a timeclock and higher supervision did not. She did not in 283 F.2d 545 (C.A. 9, 1960). Cf. First National Bank of New Snyrna Beach, 204 NLRB No. 11. MANUEL SAN JUAN CO. 817 fact attend supervisory meetings of departmental heads. It is admitted, as with Lopez, she did not have the authority to hire, tire or -proritdtii other employees or effectively recommend such action. However, again as with Lopez, the question that must be resolved is whether Cumba possessed any one of the indicia of supervisory status set forth in Section 2(11) of the Act. Marco Palacios testified he worked in the central files section under Mrs. Cumba for a period of about I 1 months beginning in March 1972. He testified Mrs. Cumba was his immediate supervisor; that she alone gave him his work assignments ; instructed him in his duties and reassigned work from one employee to another in the department; that Cumba requested him to work overtime on occasions; that he reported his absences or lateness to Cumba; that occasionally Cumba reprimanded him for "a job poorly done or taking too long to do something she had ordered me to do" and he observed her reprimanding others under her direction.? Luz Alvarez, who worked as a clerk in central files from June 1972 to February 1973, testified concerning her employment relationship with Cumba as follows: Cumba, and no one else, gave her work assignments and instruc- tions; selected and instructed her to work overtime on many occasions; and observed Cumba assigning work to others in the department, instructing them and on occasions giving verbal reprimands. Based on the credible testimony of Palacios and Alvarez I find that Luisa Cumba responsibly directed the work of others and in so doing exercised discretion and independ- ent judgement. Accordingly, I find Cumba was a supervi- sor within the meaning of Section 2(11) of the Act at the time of her discharge and therefore recommend all complaint allegations pertaining to Cumba be dismissed. Gloria Rivera de Nieves This employee started working for Respondent in October 1969 as a policy typist in the accident and health department. She was discharged February 20, 1973. The General Counsel alleges Rivera was discharged because she "joined and assisted the Union, and/or engaged in the concerted work stoppage and strike . . . or in other concerted activity." Rivera signed a Teamster card back in April 1972 and although apparently her interest and activity was known to supervision she was not discharged on February 9 along with Delgado and the other union activists. There is no evidence in the record to support a finding that such prior union activities had anything to do with her discharge. After the renewed activities among Respondent's employees, this time in the Charging Party Union, Rivera signed an authorization card and participated in the strike of February 12. The authorization card is dated February 12 although Rivera testified she signed the card earlier . I need not resolve this discrepancy as I find neither the signing of the card nor her r I have considered Palacios' change of heart toward the Union after the strike however I do not believe this in any way affected his credibility as a witness. 8 At this point counsel for General Counsel asked for a short recess stating that her witness was subject to migraine headaches and needed to relax. While I sympathize with anyone subject to migraine I also must participation in the strike had anything to do with her discharge. Counsel for General Counsel adduced testimony from Rivera that "near the end of the year" [1972] her departmental supervisor, Oliveras, interrogated and threat- ened her about her signing the Teamsters authorization card back in April 1972. She placed the scene of this conversation in the departmental office and testified that Maria Melendez and Maria Barroso were present. When asked to describe this conversation Mrs. Rivera became very tense and responded "Frankly, at this moment I do not remember." After a short recess 8 Rivera was again asked to relate "what he [Oliveras] said?" She responded this time that "when [she] gave the statement" [to the investigating Board agent] she remembered but "at this moment I do not remember." After refreshing her recollection by reading her previous statement she testified that Oliveras stated in this conversation "That Mr. San Juan had knowledge that we had asked for a union and that pressure would be exerted on the employees." Oliveras admitted that he had engaged in a conversation with Rivera, Melendez, and Barroso but fixes the time prior to the withdrawal of the Teamsters petition on July 18, 1972, therefore outside the 10(b) cutoff date. He testified, credibly, that all present merely discussed the Union in general terms and denied he said San Juan knew who signed Teamsters cards or that the Company would put pressure on those who signed Teamsters cards. It seems to me more plausible that such a conversation about the Teamsters would have occurred, as described by Oliveras, before the withdrawal of its representation petition rather than near the end of the year as testified by Rivera. I fully credit Oliveras' version of this conversation over that of Rivera. On reporting to work Monday, February 12, Rivera joined the strike of a majority of the work force in protest of the discharges of the four fellow workers on February 9. Admittedly her supervisors noticed Rivera, along with many others, on the picket line. Fabio Pons, who became acting supervisor of the accident and health department, substituting for Oliveras during the latter's absence due to illness, testified that he saw both Rivera and Secretary Teresa Barroso on the picket line. According to her own testimony Rivera abandoned the strike before it ended about noon on February 14. She reported for work at starting time about 8 a.m. that same day and continued working until her discharge on February 20.9 Secretary Barroso apparently reported back for duty at the same time as Rivera. Rivera testified that on the day of her discharge, but before being notified, she had another conversation with Oliveras. This time the alleged conversation took place in a restaurant named the Palm Beach. She testified that Oliveras "told me that they had had a meeting where he was asked to discharge me" . . . "that he had said that he was not going to discharge me because he knew that he did consider that such a condition is often brought on or aggravated by stress, such as existed here where the witness was called upon to relate events which apparently she anticipated would be challenged or contradicted by other witnesses. 9 Rivera returned to the office the next day, February 21, but was not permitted to work. 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not have any reason to" . . . "that they talked to Mr. Fabio Pons to discharge me . . . and he very gladly agreed to do it." Contradictorily, Rivera further testified that Oliveras told her Pons had "volunteered to effect my discharge" . . . further that Oliveras said she would be fired that day "and that they were going to have a witness that would come and bother me so that I would answer back and then that person would be Mr. Pons' witness." She then testified everything happened as predicted "except that the witness did not appear." It is most significant that nowhere in Rivera's testimony about this alleged conversation is the Union, her signing a union card, or her participation in the strike, mentioned. The subject matter of the conversation, as related by Rivera, is suggestive of entrapment on the part of Respondent in an alleged effort to so agitate or "bother" her to the extent of provoking an act of insubordination ["so (she) would answer back"] and thus provide justifica- tion for discharge. Oliveras denied the existence of any such conversation with Rivera and further denied he had been to any meeting with other officials concerning her discharge prior thereto. I credit his denials. His testimony there were no superviso- ry meetings about her discharge is corroborated by the testimony of Pons and lends support to the testimony of other management officials concerning Rivera's termina- tion. In fact Assistant to the President Orlando Lomba called Pons to his office after the discharge to get a report of the reason for the discharge . However, even if I were to accept Rivera's testimony concerning this alleged conver- sation I see no basis of an unfair labor practice finding nor would I draw any inference, under all the circumstances surrounding her discharge , of unlawful motivation. Respondent contends Rivera was discharged primarily because of continued acts of insubordination to Acting Supervisor Pons and an aggravated incident of insubordi- nation on February 20, the day of her discharge. There were other complaints by Respondent of Rivera's work habits, including extensive absence from her work station and an incident of alleged unexcused absence around the Christmas holidays in 1972. These other complaints will be only lightly discussed as they provide merely a background to the more serious and credible contention of insubordi- nation. The rather regular absences from her work station and more particularly the unexcused absence during the Christmas holidays (Rivera later buttressed her claim of illness with a doctor's report, adding still more fuel to an already deteriorated relationship between Rivera and Pons) irritated Pons to the extent of considering discharg- ing Rivera at that time . Nevertheless he gave Rivera "another opportunity of proving your good faith as an employee." 10 As noted hereinbefore Pons had been substituting for accident and health department supervisor Oliveras for a period of several months prior to Rivera's discharge. During January and February 1973 Oliveras was still absent due to illness although he came to the office during this period a day or so at a time. Apparently during these 10 Letter from Pons to Rivera dated February 20, 1973. Apparently the letter was written after Rivera's discharge and at her request. I attach no brief visits he did not take over from Pons, who was substituting for him . It is inconceivable that Rivera was not aware of Pons' status. She admitted that he made work assignments to her and the evidence is clear that Pons asked her to account for the alleged unexcused absence during the Christmas holidays. It is also clear, from Rivera's own testimony, that she refused to recognize Pons as her supervisor. When asked if she was aware that Pons was substituting for Oliveras during January and February, Rivera responded, incredibly, "Not that I have knowledge of . . . he was an employee like myself ." This is contradictory to her testimony that she accepted work assignments from Pons during this period. Pons testified that after their encounter over her Christmas holiday absence , Rivera continued her same pattern of absences from her work station and continued to refuse to recognize him as department head. He testified that on February 20 Rivera "came in at 9 o'clock and went out and came back at eleven ." When she returned Pons told her he "had given [her] some opportunities but that I could no longer accept her absences and it was then that she got insubordinate." When asked "what was the nature of her insubordination" Pons testified that Rivera told him "She did not have to account to me , that her boss was Orlando Oliveras." Pons asked Rivera to resign but, according to Pons, "She said that she would not resign, that I should give her a reason for discharging her, and I did have a reason." It is undisputed that Rivera continued to work, or at least she remained in the office until quitting time. During this time she demanded a discharge letter from Pons and Pons agreed to prepare one (which Rivera acknowledged she received on February 28). The following day she again came to the office and once again Pons told her she was discharged. Oliveras came to the office this same day and spoke to Rivera advising her "the management of Manuel San Juan Company had decided definitely that she could not keep her job any longer." Oliveras further testified that Pons threatened to resign if management failed to back his decision to discharge Rivera. Based on all the above considerations surrounding the discharge of Rivera I find that the employment relation- ship between Rivera and Pons had become intolerable to Pons and that on February 20, 1973, after Rivera made it crystal clear she did not intend to recognize Pons as her supervisor he discharged her for insubordination . I find the discharge entirely justifiable and in no way related to Rivera's union or concerted activities. Accordingly, I recommend the complaint allegations pertaining to Rivera be dismissed. The 8(a)(4) Allegation The complaint alleges Respondent ". . . refused to pay ... Gloria Rivera de Nieves . . . a monetary benefit to which she was entitled, in reprisal for her having filed a charge under the Act." Respondent admits it failed and refused to pay Rivera 1 month's severance pay required by law in Puerto Rico. It significance to the letter in arriving at my conclusion herein MANUEL SAN JUAN CO. also acknowledged such payment was made to the other dischargees . The difference in treatment, according to Respondent's position, resulted in the fact that such payment was made to the other dischargees prior to their filing charges with the Board; that refusal to grant severance pay to Rivera "was due to the fact that at the time that all amounts due to her were calculated, Respondent had already received notification that she had filed an 8(a)(3) charge at the National Labor Relations Board." Respondent argues that it did not know the outcome of such litigation, and since "In the event of reinstatement Mrs. Rivera would not be entitled to severance pay under State law No. 50" its refusal was not in reprisal for filing the charges herein but a matter "of waiting for a final disposition of the unfair labor practice charge in order to ascertain whether or not the employee's discharge is final and there is no possibility or reinstatement before being entitled to severance pay under Law No. 50." Respondent does not consider what should be done about the other dischargees who have already received their severance pay and whose ultimate status is still pending final litigation of their cases . It is clear however in the record that such severance pay is deductible from any backpay which may be due as a result of these proceedings. I find no merit to Respondent's contention and further find that by refusing to grant severance pay to Rivera because of her filing the unfair labor practice charges herein Respondent violated Section 8(a)(4) of the Act. The strike of February 12, 1973 It is undisputed that when the employees of Respondent reported for work on the morning of February 12 a picket line had been established at the entrance to the office building partly occupied by Respondent and a majority of the employees were on strike. During the approximate 2- 1/2 day strike most of the employees, apparently on advice of a representative of the Union, returned to work. A small number, about 25, remained during the morning of the third day, February 14. Before noon, most of these except for a few stragglers, including those six named in the complaint, had returned to work. Thereafter, the six employees named in the complaint returned and unconditionally offered to go back to work. According to Personnel Director de la Vega, Respondent "waited until about 8: 10 and since some of the employees still did not come up and since we needed to continue with our work we decided to take [hire] some employees who could do the work." She further testified "only four or five persons were taken [hired ]. " Further, that about 1 p.m. February 14 "all the employees who had been downstairs reported to work" . . . and all were put back to work "except four or five"; that four of the six named in the complaint had been replaced; and that striker Sanchez' position had been eliminated. Whether all the strikers named in the complaint were or were not replaced is a matter I do not find necessary to resolve. The evidence establishes, and in effect Respondent 11 General Drivers and Helpers Union, Local 662, Teamsters [Rice Lake Creamery Co.] v. N.LR.B., 302 F.2d 908,911 (C.A.D.C., 1962) 819 admits, that all six employees unconditionally offered to return to work on February 14, 1973. The evidence further establishes, and apparently Respondent admits, that the strike was initiated because of the discharge on February 9, 1973, of the four individuals discussed hereinabove. I have found that the discharge of Delgado and Quinones was in violation of Section 8(aX3) and (1) of the Act. Since the strike was occasioned solely to protest the unfair labor practices found herein, I find the strike to have been an unfair labor practice strike.(( Accordingly, the returning unfair labor practice strikers who offered unconditionally to go back to work on February 14, even if replaced, were entitled to reinstatement and Respondent's refusal to reinstate them constitutes a violation of Section 8(a)(3) and (1) of the Act.12 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, found to constitute unfair labor practices occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent unlawfully discharged Hector Delgado and Angela Quinones on February 9, 1973, I shall recommend that the Respondent offer each of these employees immediate and full reinstatement to their former jobs, or, if those jobs no longer exist, to substantial- ly equivalent positions, without prejudice to their seniority or other rights and privileges, and make each of them whole for any loss of earnings they may have suffered by reason of the discrimination against them by payment to them of a sum of money equal to that which they normally would have earned from the aforesaid date of their discharge to the date of Respondent's offer of reinstate- ment, less net earnings during such period. Backpay and interest shall be computed as prescribed in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Having found that the strike which began on February 12, 1973, is an unfair labor practice strike and that the Respondent unlawfully has refused to reinstate the six strikers named in the complaint , I shall recommend that Respondent offer said employees immediate and full reinstatement to their former jobs , or, if those jobs no longer exists, to substantially equivalent positions , without prejudice to their seniority or other rights and privileges, discharging, if necessary, persons hired on and after February 12, 1973. I shall further recommend that Respondent make said strikers whole for any loss of 12 Mastro Plastics Corp. v. N.LR.B., 350 U.S. 270 (1956). 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD earnings they may have suffered by reason of Respon- dent's unlawful refusal to reinstate them to :heir former jobs by payment to them of a sum of money equal to that which they normally would have earned from noon February 14, 1973 (that date being the day on which unconditional application for reinstatement was made by said striking employees), to the date of the Respondent's offer of reinstatement less their net earnings during such period. The backpay provided shall be computed on the basis of the formula prescribed in F. W. Woolworth Company, 90 NLRB 289, and interest of 6 percent per annum shall be added to said backpay as prescribed in Isis Plumbing & Heating Co., 138 NLRB 716. Having found that Respondent unlawfully refused to grant severance pay to Gloria Rivera de Nieves after her discharge on February 20, 1973, I shall recommend that Respondent make whole this employee by paying her severance pay she was entitled to on February 20, 1973, and in addition thereto interest at the rate of 6 percent per annum shall be added to such payment. Upon the basis of the foregoing findings of fact and upon the entire record in the case I make the following: CONCLUSIONS OF LAW 1. Manuel San Juan Company, Inc. et al., an integrated enterprise, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Gremio Puertorriqueno de Trabajadores is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminatorily discharging Hector Delgado and Angela Quinones, thereby discouraging membership in the Union, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. The strike by Respondent's employees which began on February 12, 1973, was caused by Respondent's unfair labor practices found herein. 5. By failing and refusing, since February 14, 1973, to reinstate the six striking employees named above after they made unconditional applications for reinstatement to their former positions, thereby unlawfully discriminating against them and discouraging membership in the Union, Respon- dent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8 (a)(3) and (1) of the Act. 6. By refusing to grant severance pay to Gloria Rivera de Nieves after her discharge on February 20, 1973, because she filed the subject unfair labor practice charge, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(4) and (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 8. Respondent has not violated the Act by discharging Maria Lopez, Louisa Cumba, and Gloria Rivera de Nieves. Nor has the Respondent violated the Act in any other manner not specifically found herein. 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: ORDER 1a Respondent Manuel San Juan Company, Inc., Common- wealth Insurance Company and United Adjustment Bureau, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Gremio Puertorriqueno de Trabajadores, or any other labor organization, by discharging any of its employees or otherwise discriminat- ing against any of its employees in regard to their hire and tenure of employment or other terms or conditions of employment. (b) Discouraging membership in Gremio Puertorriqueno de Trabajadores, or any other labor organization, by refusing to reinstate employees because of their union or strike activities or in any other manner discriminating in regard to hire or tenure of employment or any terms or conditions of employment. (c) Discouraging employees in the exercise of their statutory rights by refusing to grant severance pay to discharged employees because said employees have filed unfair labor practice charges with the National Labor Relations Board. 2. Take the following affirmative action, which is deemed necessary to effectuate the policies of the Act: (a) Offer to Hector Delgado and Angela Quinones immediate and full reinstatement to their former jobs, or, if those jobs no longer exists, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of unlawful discrimination against them in the manner set forth in the section of this Decision entitled "The Remedy." (b) Offer to the employees named below who have been found to be unfair labor practice strikers immediate and full reinstatement to their former jobs , or, if those jobs no longer exists, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of unlawful discrimination against them in the manner set forth in the section of this Decision entitled "The Remedy." Awilda Soto Ana Hilda Rodriquez Myriam Ramos-Gonzalez Jorge Olivo Gilda Velez Efrain Sanchez-Pinto (c) Make whole Gloria Rivera de Nieves by payment to her of an amount equal to her severance pay due on February 20, 1973, plus 6-percent interest from said date to the date of payment. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, 13 In the event no exceptions are filed as provided by Sec . 102.46 of the the Rules and Regulations, be adopted by the Board and become its Rules and Regulations of the National Labor Relations Board , the findings, findings, conclusions, and order, and all objections thereto shall be deemed conclusions, and recommended Order herein , as provided in Sec. 102.48 of waived for all purposes. MANUEL SAN JUAN CO. 821 personnel records and reports, and all records necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at its plant in San Juan, Puerto Rico, copies of the attached notice marked "Appendix." 14 Copies of the notice, in both English and Spanish, on forms provided by the Regional Director for Region 24, after being duly signed by Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 14 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in the Gremio Puertorriqueno de Trabajadores, or any other labor organization, by discharging any of our employees because of their union or concerted activities, or. by otherwise discriminating against them in regard to their hire or tenure of employment or any term or condition of their employment, WE WILL offer Hector Delgado and Angela Qui- nones immediate reinstatement to their former or substantially equivalent positions, and make them whole for any loss suffered by reason of the discrimina- tion practiced against them by paying them backpay with interest at 6 percent per annum. WE WILL offer Awilda Soto, Myriam Ramos-Gonza- lez, Gilda Velez, Ana Holda Rodriguez, Jorge Olivio, and Efrain Sanchez-Pinto, immediate and full rein- statement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges and make them whole for any loss in pay suffered by reason of our refusal to reinstate them on February 14, 1973. WE WILL make Gloria Rivera de Nieves whole for our refusal to grant her severance pay at the time of her discharge on February 20, 1973, by payment to her of an amount equal to such severance pay plus interest at an annual rate of 6 percent from February 20, 1973, until the date of such payment. WE WILL NOT, in any other manner, interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the Act, except as permitted in Section 8(a)(3) of the Act. MANUEL SAN JUAN COMPANY, INC. COMMONWEALTH INSURANCE COMPANY AND UNITED ADJUSTMENT BUREAU, INC. (Employer) 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, P.O. Box U U, 255 Ponce de Leon Avenue, Hato Rey, Puerto Rico 00919, Telephone 106-622-0247. 1'