Union Nacional de Trabajadores

UNION NACIONAL DE TRABAJADORES Union Nacional de Trabajadores and its Agent, Al- cides Serrano and Jacobs Constructors Company of Puerto Rico. Case 24-CB-885 July 23, 1975 DECISION AND ORDER On September 26, 1974, Administrative Law Judge Josephine H. Klein issued the attached Decision in this proceeding. Thereafter, Respondent Union, Charging Party, and the General Counsel all filed exceptions and supporting briefs.' The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,2 and conclusions of the Administrative Law Judge. ORDERS Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that Respondent Union Nacional de Trabajadores, its officers, agents, and representatives, and Respondent Alcides Serrano, while acting as agent of Respondent Union Nacional de TrabaJadores, shall: 1. Cease and desist from: (a) Restraining or coercing employees of Jacobs Constructors Company of Puerto Rico, or the em- ployees of any other employer in Puerto Rico, from engaging in their employment or exercising their rights under Section 7 of the National Labor Rela- tions Act, as amended, particularly by the use of force or violence or threats of force or violence upon the person or property of any employees, employers or representatives of employers, or third persons dealing with or attempting to deal with any employ- er. (b) In any other manner interfering with, restrain- ing, or coercing employees of Jacobs Constructors 1 The request for oral argument by the Respondents is hereby denied as the record and briefs adequately present the issues and positions of the parties. 2 The Respondent Union 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 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951 ). We have carefully examined the record and find no basis for reversing her findings. 3 As in the companion cases, issued this day, involving Respondent Union-Union Nacional de Trabajadores and Comite Organizador Obreros en Huelga de Catalytic (Catalytic Industrial Maintenance Co., Inc.), 219 NLRB No. 66, and Union Nacional de Trabajadores and its Agent Arturo Grant (Macal Container Corporation), 219 NLRB No. 67-where unlawful conduct was engaged in similar to that found herein, we shall modify the Order recommended by the Administrative Law Judge in order to better effectuate the policies of the Act and serve the public interest. 405 Company of Puerto Rico, or the employees of any other employer in Puerto Rico, in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action, which is necessary to effectuate the policies of the Act: (a) Post at Respondent Union's business office and meeting hall copies in English and Spanish of the attached notice marked "Appendix." 4 Copies of said notice on forms provided by the Regional Direc- tor for Region 24, after being duly signed by Respon- dent Union's authorized representative, and by Re- spondent Serrano, shall be posted by Respondent Union immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where no- tices to members are customarily posted. Reasonable steps shall be taken by Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (b) Forthwith mail copies of said notice in English and in Spanish, to the said Regional Director, after said copies have been signed as provided above, for mailing of said notice by the Regional Director to each employee in Puerto Rico of Jacobs Construc- tors Company of Puerto Rico, and to Jacobs Con- structors Company of Puerto Rico, for posting by it, if willing, at its various locations in places where no- tices to employees are customarily posted. (c) Publish said notice, at Respondent Union's ex- pense, in all newspapers of general distribution pub- lished in Puerto Rico, and in any newspaper of Re- spondent Union, in each case in the language in which the newspaper is printed. (d) Notify the Regional Director for Region 24, in writing, within 20 days from the date of this Order, what steps the Respondents have taken to comply herewith. MEMBER KENNEDY, dissenting in part: For the reasons fully stated in my dissenting opin- ion in Catalytic Industrial Maintenance Co., Inc., 219 NLRB No. 66, issued this date, I dissent from my colleagues' refusal to award backpay to those em- ployees who were prevented from working by Re- spo.ndents' unlawful restraint and coercion. As in Catalytic and Macal Container Corporation, 219 NLRB No. 67, also issued this date, agents of Respondent Nacional, particularly Respondent Al- cides Serrano, threatened company officials, employ- ees, suppliers, and others with physical harm if they attempted to undermine the strike effort. In addition, 4In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD when some of the striking employees sought to nego- tiate an end to the dispute, Alcides Serrano quickly squelched the effort and then proceeded to police his decision with a "gang" of 8-12 pipe- and stick-wield- ing nonemployees. According to the undisputed testi- mony, Serrano announced to the employees that he had brought "the gang with [him] to back [him] up so that no one will go to work." For the reasons stated in my Catalytic dissent, I would award backpay for wages lost on account of Respondents' unlawful conduct. APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all parties had the opportunity to present their evidence, it has been found that we, Union Nacional de Trabajadores de Puerto Rico, and Alcides Serrano, acting as agent for the Union, have violated the law and we have been required to execute this notice. We are committed to abide by the following statements: WE WILL NOT engage in any violence or threat- en to injure or damage the person or property of any employee or representative of Jacobs Con- structors Company of Puerto Rico or of any other employer in Puerto Rico or any other per- son for the purpose of preventing any employees from freely exercising their right not to partici- pate in any strike or their right to refrain from engaging in any concerted activity. WE WILL NOT in any other manner interfere with, restrain, or coerce any employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bar- gain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from engaging in such activities. UNION NACIONAL DE TRABAJADORES OF PUERTO RICO DECISION STATEMENT OF THE CASE JOSEPHINE H. KLEIN, Administrative Law Judge: Pur- suant to a charge filed on April 8, 1974,1 by Jacobs Con- Unless otherwise indicated, all dates herein are in 1974 structors of Puerto Rico (the Company) against Union Na- cional de Trabajadores (the Union) and Alcides Serrano, stated to be the Union's agent, a complaint was issued on June 7 alleging that on various occasions between April 2 and 19, during and after a strike against the Company, the Union, through Respondent Serrano and another agent, engaged in various acts of coercion and other misconduct in contravention of Section 8(b)(1)(A) of the Act.2 Pursuant to due notice, a hearing was held before me in Hato Rey, Puerto Rico, on July 18 and 19. All parties were represented by counsel and were afforded full opportunity to present oral and written evidence and to examine and cross-examine witnesses. Counsel for Respondent present- ed brief oral argument and a posttrial brief has been filed by the Charging Party. Upon the entire record, together with careful observa- tion of the witnesses and consideration of the brief, I make the following: FINDINGS OF FACT 1. PRELIMINARY FINDINGS The complaint alleges, the answer admits, and I find that: A. The Charging Party, a Puerto Rico corporation, with its principal office and place of business in Hato Rey, Puerto Rico, is and has been at all times material herein engaged in performing engineering, construction and relat- ed services. During the past year, a representative period, the Company purchased and caused to be transported and delivered to its places of business in Puerto Rico piping, paneling, and other construction goods and materials val- ued in excess of $50,000 directly from points outside Puer- to Rico. The Company is, and has been at all times materi- al herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. B. The Respondent Union, is and has been at all times material herein, a labor organization wtihin the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. The Facts At the time here involved, Respondent was engaged in constructing storage tanks and related pipes at a pollution control installation at Arecibo, Puerto Rico. Damian Cruz- Pabon was office manager at the project and Joseph Gresh served as project construction superintendent. Juan G. Per- eira-Zayas, the Company's comptroller, and Evelio Gonza- lez-Pomales, a project engineer, both with offices in Respondent's executive office in Hato Rey, also became involved in the matters with which this complaint is con- cerned. Cruz, Pereira, and Gonzalez all testified on behalf of the General Counsel. Gresh is no longer associated with Respondent and could not be located at the time of the hearing. 2 National Labor Relations Act, as amended (61 Stat. 136, 73 Stat 519, 29 U S.C. § I51, et seq ). UNION NACIONAL DE TRABAJADORES 407 There were approximately 22 workers, including 4 "fore- men." 3 Employee Serrano, the individual Respondent, did not appear or testify at the hearing.4 Respondents' only witness was Elias Samuel Castro-Ramos, organizer for Re- spondent Union.5 Cruz, Pereira, and Gonzales gave consistent and sub- stantially mutually corroborative testimony. Therefore, the summary of the General Counsel's evidence is based large- ly on a composite of their testimony. On March 28 Serrano, speaking on behalf of all the em- ployees, complained to Cruz and Gresh about what the employees deemed inadequate medical insurance. Accord- ing to Cruz, Serrano was excited and hostile at that time. Cruz immediately communicated with Pereira, who ar- ranged to have a representative of a medical insurance company visit the project the following Tuesday, April 2, and the employees were so informed. On Monday, April 1, the employees worked in an atmo- sphere of complaints and hostility, principally on the part of Serrano. But there is no evidence that the employees gave any indication or warning at that time that they ex- pected to strike. Union Organizer Castro, however, testi- fied that on Monday afternoon he was informed of the strike by Serrano and again on Monday evening by the president of the Boilermakers Union. Castro also testified that union authorization cards had been distributed some- time during the previous week. When Cruz and Gresh arrived at the project before 7 a.m. on Tuesday, all the employees (including the four "foremen") were already there but on strike. Cruz testified that Serrano, in an agitated manner and using obscenities, was leading the assembled employees. He had employees execute authorization cards at that time. Sometime later, a representative of an insurance company arrived and an im- proved insurance plan was explained to all the employees. Thereupon Cruz said that, since they had got their de- mand, the employees should return to work. Serrano, how- ever, as spokesman, said that it was now too late ; the em- ployees now wanted to be represented by the Union. Pereira arrived a little later and joined Cruz and Gresh in the trailer which housed the project office. Union Or- ganizer Castro also arrived on the scene and apparently spoke with the employees for a while and then entered the trailer, followed immediately by Serrano and approximate- ly three additional employees. Identifying himself as a union organizer,6 Castro said that they had union authori- 3 The status of the "foremen" under the Act is not an issue in the present proceeding. Pereira gave hearsay testimony that the foremen joined the strike out of fear. No finding is made on the basis of that testimony. 4 In his brief, counsel for the Company says that Serrano "was present" on July 17, when the trial was originally scheduled to begin and was post- poned until the next day The record , however, does not reflect Serrano's presence at any time. 5 Ramades Acosta-Cepeda, Respondent Union's secretary-treasurer, was called as an adverse witness by the General Counsel and testified briefly. 6 Jacobs' representatives testified that Castro identified himself as Ra- mades Acosta-Cepeda , an officer and organizer of the Union. Actually, Acosta visited the project only for about half an hour on Thursday, April 4. It does not appear that he spoke to any Company representative . Whatever the reason was for the mistaken identity, the evidence is clear that Castro served as the union organizer but was known as Acosta to Jacobs ' represen- tatives. zation cards from all the employees and asked Pereira to negotiate with the Union. Pereira refused. At the request of Pereira and Cruz, the employee delegation left the trailer, but said they would return. Around 11 a.m. Castro and Serrano again approached the three company representa- tives. According to Cruz, Serrano spoke for the employees at this time. Cruz quoted Serrano as saying: "I have cards signed by the employees also and I'm also an organizer for Union National and we want to negotiate." Serrano was speaking so excitedly and loudly that Gresh ordered him to lower his voice, whereupon Serrano hurled derogatory epi- thets and said to Gresh: "You, I'm going to bust your face and I'm going to force you out of here, you are going to have to leave." During this meeting Castro repeated the employees' demands, which now included wage increases to the levels recently achieved by the Union at another company and increased safety equipment as well as dis- charge of Cruz and Gresh. Castro said that the Union would withdraw from the picture if the Company met the stated demands. Pereira continued to reject the bargaining demands, stating that he had no authority to negotiate. Cruz and Pereira testified that sometime during the morning of Tuesday, April 2, a representative of the Envi- ronmental Quality Board (a local governmental agency) drove onto the premises. When he emerged from his car and started toward the trailer-office, he was confronted by Serrano and other employees, who excitedly asked the vis- itor what he was doing there. They blocked his way to the office and forced him to return to his car. According to Cruz, Serrano "told the man to take off his glasses that he was going to hit him and told him he didn't have a damn thing to do there." As the man was leaving, "[t]he group and particularly Mr. Serrano told him that if he were to return they would break his bones." The employees wrote down the visitor's automobile registration and Serrano "told him that if he returned they would tear up his car." Castro was present throughout this time but said nothing. On Wednesday morning, Jose Coppen, Jacobs' manager of operations for Puerto Rico, accompanied Pereira to the site. Stating that the Company agreed to meet all their de- mands, Coppen asked why the employees were striking. Serrano said that they had complained for 2 weeks and nothing had been done. He complained that the Company still had not produced "a written promise," although on Tuesday Pereira had said he would bring one. On the morning of April 3 a supplier of Jacobs delivered a box. Serrano, with several other employees, grabbed the box out of Cruz' hand, threw it back into the supplier's truck, closed the truck door, and loudly ordered the driver to leave. The driver readily complied. On Wednesday afternoon, while Serrano was absent, some employees, led by employee Andres Antiles-Crespo, visited the office and offered to return to work if assured that there would be no reprisals. Cruz agreed. The employ- ees then asked to be paid for the days of the strike. Gresh rejected that demand as setting a bad precedent. The em- ployee group then went to consult their fellow workers. When they returned to state that the strike would continue, Gresh offered to pay for 1 of the 2 days. The employee delegation again went to consult their colleagues. At this point Serrano arrived. When informed of the negotiations, 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Serrano assumed control and asserted the sole right to set the terms for returning to work. He said: "Nobody is going back to work, we are going on with the strike." Thereupon all the employees left the premises 7 According to Pereira, Castro was present at the time but said nothing. Cruz testified that on Wednesday and again on Thurs- day Serrano left the project and later returned with some 8 to 12 men who, carrying pipes and sticks, mingled with the striking employees. Serrano announced that he had brought a "gang with [him] to back [him] up so that no one will go to work." On Thursday another supplier attempted to deliver ma- terial. The truckdriver was "intercepted" by Serrano and other employees. The driver left the premises when Serrano said the employees were on strike and did not want any deliveries made. The strike continued. According to Cruz and Pereira, the Company sought police protection on Thursday, and a po- lice lieutenant and four or five police officers were present at the project from Thursday afternoon until around 2 or 2:30 p.m. on Friday, after all the employees had been paid and had left the premises. On Friday, April 5, Pereira, accompanied by Harold Spence, a representative of Jacobs' parent company, and Eduardo R. Estrella, Esq., an attorney for Jacobs, again visited the project. Pereira started to distribute among the striking employees a pamphlet (or flyer) setting forth the Company's commitment to meet all three of the employ- ees' demands. In addition, the Company agreed to pay wages for half the time of the strike. Serrano prevented Pereira's giving pamphlets to all the employees. Serrano "told the employees not to accept those promises, not to rely on them, that the company was going to start taking reprisals against the employees." At that point Castro ap- proached and tried to talk with Pereira. When Pereira said he had nothing to say to Castro, Castro then asked if Per- eira wanted to fight. Pereira declined the invitation to fight and repeated that he had nothing to discuss with Castro. Attorney Estrella intervened, sent Pereira into the trailer- office and proceeded to talk with Castro. The nature of their discussion does not appear. According to Cruz, on Saturday a final settlement of the strike was negotiated by Pence, Pereira, and Estrella on behalf of the Company, with Atiles for the employees. It appears that both Serrano and Castro were present when the strike settlement was negotiated but did not actively participate in the negotiations.8 Castro testified that the Union did not become involved until after the employees had decided to strike. After testi- fying that he first heard of the strike on Monday evening from the president of the Boilermakers Union, Castro then said he first learned of it from Serrano on Monday af- ternoon. Castro first visited the project on Tuesday, after 7 Pereira testified that one employee later visited the office and said that he wanted to accept the Company's offer "but that the rest of the employees were scared, afraid to come back to work." No finding is here made on the basis of this hearsay evidence. s Cruz testified that it would not be "legal" for the Company to negotiate a settlement with Serrano He did not explain this statement. However, it is clear that the Company refused to recognize the Union absent an election and certification. the strike had begun and Serrano had obtained union cards from all the employees. It was also apparently after the insurance company representative had spoken to the em- ployees. Castro testified that when he first spoke to man- agement representatives on Tuesday he said that the Union would withdraw if the Company met the employees' de- mands and Pereira promised to give an answer concerning the medical insurance the next day. However, Castro also testified that on Tuesday he told management that he had union authorization cards from all the employees and de- manded that Pereira negotiate a collective-bargaining agreement. According to Castro, "[a]fter the strike started, when they saw that the company did not want to settle as to the medical plan, that they only promised things, the workers decided that one of their demands would be recog- nition of the union because they understood that this was the only way they would be well represented and so that the company would not continue making promises but would execute a collective bargaining agreement." Pereira said he had no authority to negotiate a contract, but the medical insurance question was under consideration and Pereira would give an answer the next day. Castro further testified that on the next day, Wednesday, Pereira did not produce anything on the medical plan and thus the strike continued. Castro testified that at that time, with all the employees present, he was seeking "a solution to the imme- diate demands in order to end the strike and if those de- mands were met the people would come in to work, but then we would have to sit down and negotiate a contract." Castro testified that on Thursday Pereira "came with the demands satisfactorily met, according to him, but they were not in writing and the workers believed that if they were not in writing they did not want them." So the work- ers stayed out on strike. On Friday, Pereira produced a writing, but since it was "not signed by hand," it was not immediately accepted. According to Castro, the workers said they would return to work on Monday if they received a properly signed document and a guarantee against repri- sals. The necessary papers were provided Monday morning and the employees went back to work after Castro read to them the Company's promise not to take reprisals. Castro generally denied that there had been any violence at the project while he was present. He also denied, though somewhat vaguely, that Serrano had made any threats in Castro's presence. Castro did not, and obviously could not, deny or contradict the testimony by General Counsel's wit- nesses as to specific conduct by Serrano when Castro was not present. The Union filed a representation petition that afternoon, April 8. That petition has been held in abeyance pending proceedings on the present charge, which was filed the same day. On April 17, Castro visited the project and talked to the employees. When Gresh said that Castro should not talk to the employees on working time, but should await their free time, Castro replied that "he would talk to the employees whenever he felt like it." When Gresh then ordered him off the premises, Castro replied "that he would not get out, that if anyone wanted to get him out they could come and get him out." Castro added that "if anybody had intentions to fight with him he would fight." UNION NACIONAL DE TRABAJADORES Around April 17 the Company decided to discharge Ser- rano. Cruz and Gonzalez, a project engineer for Jacobs, testified that on April 19 Serrano and another employee entered the trailer-office carrying hammers. Serrano de- manded to know the identity of the "scum" (or otherwise derogatorily described person) who had decided to dis- charge him. When Gresh acknowledged responsibility, Ser- rano, raising the hammer in his right hand, said: "I'm going to break up your face." According to Gonzalez, Ser- rano said he was going to "kill" Gresh. The fellow employ- ee restrained Serrano, who thereupon swung his left hand, hitting Gresh and pushing him against the wall of the trail- er. Serrano agitatedly shouted a variety of epithets until some fellow employees, "hearing this commotion walked in and grabbed him and got him out of the trailer." Outside, after freeing himself from the restraint of his coworkers, Serrano picked up a pipe and shouted: "Anyone who stops me I'm going to bash in his head." Addressing Gresh and Cruz, who were at the entrance of the trailer, Serrano said, "I'm going to smash you car," whereupon he struck Cruz' car with the pipe, doing an unspecified amount of damage thereto. At that point Gonzalez left the premises in his car to seek police protection. (At the time there were no tele- phone facilities at the project.) Some employees convinced Serrano that, since he had struck Gresh and was thus sub- ject to an assault charge, it would be the better part of valor for him to leave. Serrano then handed in his equip- ment, signed necessary papers, got his pay and left the premises. The Union later filed a charge alleging that Serrano had been discharged in violation of Section 8(a)(3). The charge was dismissed. B. Discussion and Conclusions Serrano, named as a respondent in the charge and com- plaint, was represented by counsel in these proceedings. However, as previously noted, he did not appear or testify at the hearing. His unexplained failure to testify requires an inference that his testimony would not support a de- fense to the complaint. Because of Castro's limited person- al knowledge and sketchy examination, most of the testi- mony of the General Counsel's witnesses was uncontradicted. Respondents' counsel contends that , although most of the General Counsel's evidence was uncontradicted, it does not warrant a finding of threats or violence by Serrano or Castro because it does not appear that any criminal pro- ceedings were instituted against them . The presence or ab- sence of criminal proceedings is not determinative . Wheth- er Respondents committed unfair labor practices as alleged in the complaint will be decided on the basis of the evi- dence in this record. Respondents' counsel also argued that the General Counsel failed to meet his burden of proof because he did not present "any employees as witness to the fact that he had been coerced or threatened or beaten by anybody." The complaint does not allege any threats or violence aimed directly against employees. The gravamen of the complaint is that Respondent coerced employees and inter- fered with their statutory rights by engaging in conduct in the presence of employees which would have the necessary tendency to restrain their freedom of action. It is unnecessary for the General Counsel to establish as a fact that any employees actually were coerced. The em- ployees could hardly fail to get the message conveyed by the presence in their midst of a "gang" of outsiders armed with pipes and sticks, or Serrano's protestations, for exam- ple, that he "knew how to cut faces." Additionally, it should be observed again that Respon- dents did not produce any employees as witnesses to con- tradict the General Counsel's witnesses. It is reasonable to assume that if the employees had voluntarily and freely signed union authorization and membership application cards, they might be willing witnesses on behalf of the Re- spondents. It is well established "that threats made against others in the presence of strikers coerced the strikers in violation of the Act." Bonnaz Embroideries Tucking, etc., Local 66 (V. & D. Machine Embroidery Co.), 134 NLRB 879, 880 (1961), citing International Woodworkers of America et al. (W. T. Smith Lumber Company), 116 NLRB 507, 508 (1956), enfd. 243 F.2d 745 (C.A. 5 1957). See also, e.g., Local 3, Interna- tional Brotherhood of Electrical Workers (New Power Wire & Electric Corp.), 144 NLRB 1089, 1092 (1963), enfd. 340 F.2d 71 (C.A. 2 (1965); Union Nacional de Trabajadores et al. (Surgical Appliances Mfg., Inc.), 203 NLRB 106 (1973). The record as a whole inevitably leads to the inference that Respondents' course of conduct did seriously interfere with the employees' free exercise of their statutorily guar- anteed rights. It will be recalled that, according to Castro, he learned about the strike on Monday afternoon, from Serrano. No explanation was forthcoming as to why the employees had elected to go on strike as of Tuesday morn- ing to support their demand or for improved medical insur- ance when the Company had already promised that an insurance company representative would talk to the em- ployees on Tuesday. Both Castro and Pereira testified that on Tuesday Castro said that the Union would withdraw if the Company met the employees' demands. Such a com- mitment by the Union would have been, to say the least, somewhat unusual if the employees had freely executed their membership application and authorization cards. As previously set forth, Castro testified that the employees de- cided to demand recognition of the Union when "they saw that the company did not want to settle as to the medical plan." But it is not apparent when such alleged "decision" was made. The very earliest it could have been made with any semblance of rationality was Wednesday, when, ac- cording to Castro, the Company failed to present the promised detail of an improved medical insurance pro- gram. Yet Wednesday afternoon the employees, through a delegation headed by employee Atiles, sought to negotiate an end of the strike. The negotiations were aborted by Serrano's bellicose conduct. Castro also testified that he and Serrano had demanded recognition and bargaining with the Union on Tuesday, the first day of the strike. The evidence as a whole suggests that the apparently premature strike may have been instigated by Serrano in consultation with Castro. In any event, even if the strike was a sponta- neous act by the employees, the record leaves no doubt 410 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD that it was prolonged by Serrano's threatening and coer- cive conduct. Respondents maintain that the evidence does not estab- lish that Serrano was acting as an agent of Respondent Union. So far as appears, he was not an officer or a paid employee of the Union. There was no direct evidence that he was ever formally or expressly appointed as an "agent" of the Union? But that does not dispose of the "agency" issue, under the Act. Serrano and his brother, Efrain Serrano, had both been working for Catalytic Industrial Maintenance Co., Inc., at a construction project for Merck , Shape & Dohme Quim- cals de Puerto Rico, Inc., in November and December 1973, when Respondent Union conducted a strike. In an unfair labor practice proceeding against the Union arising out of the Catalytic-Merck strike, it was alleged in the com- plaint and admitted in the Union's answer that both the Serrano brothers, members of the Catalytic organizing committee, were "agents" of the Union. Cases 24-CC-168 and 24-CC-169 and 24-CB-877 and 24-CB-878, awaiting decision by Administrative Law Judge Sidney D. Goldberg [219 NLRB No. 66 and 219 NLRB No. 67]. In the present case, Castro conceded that Serrano had been the Union's "contact" at Catalytic and played the same role at Jacobs. While at Catalytic, Serrano had acquired a supply of blank union authorization cards . The evidence is undisput- ed that he had such cards executed by Jacobs' employees on Tuesday morning, the first day of the strike. But on Monday, the day before, Serrano had informed Castro of the strike. It is inconceivable that Serrano had not at least by Monday afternoon obtained Castro's approval and as- surances that the Union would sponsor the strike. It is equally inconceivable that Castro and Serrano failed to agree that Serrano would obtain union authorization cards from the employees. Thereafter, throughout the strike, Serrano served as the principal spokesman for the employees. And, as Castro tes- tified, "when you talk for the employees you talk for the union." Additionally, Cruz credibly testified that Serrano informed management representatives that he was a union agent. Such statements were made in the presence of Cas- tro, who, so far as appears, gave no indication of dis- agreement. The evidence as a whole establishes that Serrano was, in effect, the Union "resident agent" at the Jacobs project in Arecibo . As the Union's agent, Serrano directed the course of the strike, under the general guidance of Castro. Castro did nothing to prevent or restrain Serrano's bellicosity. On the contrary, at least on the occasion when Serrano threat- ened the quality control board's representative and pre- vented his conferring with management personnel , Castro was present and made no "effort to disassociate the Union's efforts from the threats." Food Store Employees Union, Local 347 (Davis Wholesale Co.), 165 NLRB 264, 268 (1967). Indeed, as stated above, Castro himself invited Pereira to fight on April 5, and on April 17, threatened to fight anybody who attempted to prevent his talking to Ja- cobs employees in work areas whenever he chose . In testi- fying, Castro gave the clear impression that he deemed vir- tually any conduct, legal or illegal, to be justified to further the employees' and the Union's interests. On all the evidence , it is concluded that during the strike Serrano was acting as the Union's agent within the mean- ing of Section 2( 13) of the Act. Accordingly, the Union is responsible for his coercive and threatening conduct. Addi- tionally, since he was acting as an agent of the Union, Serrano is personally guilty of violating Section 8 (b)(1)(A) of the Act. On April 17, Castro, clearly acting as an agent of the Union, threatened to fight anybody who attempted to pre- vent his speaking with the employees whenever he chose. It is thus clear that the Union's pattern of coercive and threatening conduct was a continuing one. It is concluded that on April 17 the Union, through Castro, violated Sec- tion 8(b)(1)(A) of the Act. The evidence also establishes that on April 17 and 19 Serrano threatened and assaulted management representa- tives within view of other employees . So far as appears, when he threatened Gresh with a hammer and then shoved him, Serrano was reacting to his own discharge rather than specifically furthering the Union 's interests . However, the Union filed a charge with the Board concerning Serrano's discharge and there is no suggestion that the Union disap- proved or attempted to disassociate itself from Serrano's continued belligerency . Serrano's conduct in that period was apparently condoned by the Union, and part of the continuing general pattern of coercion and restraint. CONCLUSIONS OF LAW 1. Jacobs Constructors Company of Puerto Rico is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. Union Nacional de Trabajadores is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. Respondent Alcides Serrano is an agent of Respon- dent Union within the meaning of Section 2( 13) of the Act. 4. By the acts and conduct described in section II, above, Respondents have restrained and coerced , and are restraining and coercing, employees in the exercise of the rights guaranteed them under Section 7 of the Act and thereby have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (b)(1)(A) of the Act. 9 In this connection, on direct examination of Respondents' counsel, Cas- tro testified: Q. Do you know if Alcides Serrano has ever been named representa- tive, or organizer, or officer of the union? A. No, he has never been a member of the union in any category. Q. Did you while being there give Mr. Serrano any authority to act in the name of the union? A. No, sir THE REMEDY Having found that Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act, I shall recommend that each Respondent be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. UNION NACIONAL DE TRABAJADORES 411 The Charging Party, however, urges that remedial action be required in addition to the customary provisions. In support of its request, the Charging Party asks that official notice be taken of the following additional proceedings, which allegedly establish the Respondent Union's "procliv- ity" for violating the Act: Union Nacional de Trabajadores (Surgical Applicances Mfg., Inc.), supra, 203 NLRB 106 (1973). Like the present case, that case concerned threats and violence engaged in by the Union and Acosta in November 1972 for the pur- pose of preventing employees' refusing to participate in a strike. Upon the Respondents' default, the Board on April 23, 1973, issued an order against both the Union and Acos- ta restraining violations essentially similar to those found in the present case. Union Nacional de Trabajadores ( Constructions Werl, Inc.), Cases 24-CB-861, 24-CB-863, and 24-CC-163. Case 24-CB-861 (which had been consolidated with Case 24- CC-163) [219 NLRB No. 66] involved the Union' s alleged violation of Section 8(d) of the Act by striking without giving statutorily required notices . A temporary restraining order and then, after hearing, a preliminary injunction were granted under Section 10(j) of the Act. (D.P.R. Civil No. 746-73.) Proceedings were later instituted against Re- spondent for contempt of the injunction . The Board pro- ceeding was ended by a stipulation and consent order (DS-522) and judgment entered by the court of appeals on March 15, 1974 (No. 74-1066) [502 F.2d 1160 (C.A. 1, 1974)]. Case 24-CB-863 involved alleged threats and vi- olence during a strike . This case also was ended by a stipu- lation and consent order (DS-521) and judgment of en- forcement by the court of appeals (No. 74-1054, March 7, 1974) [502 F.2d 1160 (C.A. 1, 1974)]. In referring to these cases , the Charging Party fails to note that the Board orders enforced by the courts appar- ently contain nonadmission clauses. The stipulations for settlement set forth the text of the orders which it is agreed that "the Board may enter . . . forthwith." The text of the orders so prescribed contains a statement that "it is under- stood that the signing of this Stipulation by the Respon- dent union does not constitute an admission that it has violated the Act." While the Board Orders (DS-522 and DS-523) do not themselves contain express nonadmission clauses, they do provide that the stipulations are "hereby approved and made a part of the record." Additionally, neither the stipulations nor the orders contain any factual statements or findings that violations have been commit- ted. Union Nacional de Trabajadores (Catalytic Industrial Maintenance Co., et al.), supra, Cases 24-CC-168, 24- CC-169 24-CB-877, and 24-CB-878. [219 NLRB No. 66 and 219 NLRB No. 67.] In these cases, the complaint al- leged, inter alia, violence and threats in the course of a strike commencing on or about November 20, 1973, and continuing until December 1, 1973, when it was restrained and then enjoined by a United States District Court. Compton v. Union National de Trabajadores, D.P.R., Civil No. 1060-73. In the Board proceeding, a settlement agree- ment was reached by the General Counsel and the Respon- dents . However, upon objection of the Charging Parties, Administrative Law Judge Goldberg rejected the settle- ment. The case was heard in May 1974 and is now awaiting decision. Union Nacional de Trabajadores (Macal Container Corp.), Case 24-CB-888 [219 NLRB No. 67]. The complaint in the Macal case alleges numerous threats and acts of violence by Respondent Union and its agents, including Castro, in the course of a strike commencing on April 23 , 1974, with- in a week after Castro is here found to have made threats in the present case. The Macal case was heard by Adminis- trative Law Judge Eugene E. Dixon on August 6 and 7, 1974, and is now awaiting decision. The Board has held that neither injunctions under Sec- tion 10(j) nor consent orders and judgments of enforce- ment pursuant to settlement agreements constitute evi- dence of a "proclivity" to violate the Act. Teamsters, Local 70 (C & T Trucking Co.), 191 NLRB 11 (1971). A fortiori settlement agreements which, like those in the Werl cases, contain "nonadmission" clauses cannot establish a "pro- clivity." Similarly, under C & T Trucking, a "proclivity" on the part of Respondent Union to violate the Act would not be shown by judgments holding it in contempt of a 10(j) injunction. Thus, in the present case we are left with only the Surgi- cal Appliances Mfg., Inc.. supra, default order against Re- spondent and the findings in the present case as the basis for finding a "proclivity" on Respondent's part to violate the Act. In C & T Trucking the Board held that a broad cease-and-desist order was not appropriate despite " 13 set- tlement agreements, one Board decision, one Trial Examiner's decision to which no exceptions were filed and another which is currently before the Board , a civil and criminal contempt adjudication in one case , and a prelimi- nary injunction in another, all involving the Respondent herein." On the other hand , the Board has found a "pro- clivity" sufficient to warrant a broad order in at least one case where there was evidence of only one prior violation by the respondent union. Teamsters, Chauffeurs, Helpers and Taxicab Drivers Local 327 (Hartmann Luggage Compa- ny), 173 NLRB 1403 (1968). Although it held the Board's Order insufficiently specific, the Court of Appeals for the Sixth Circuit expressly held that there was sufficient evi- dence to support the Board's "proclivity" finding. (419 F.2d 1282, 1284.) While C & T Trucking reflects a restrictive view and postdates Hartmann Luggage, it is distinguishable from the present case in a major respect. In C & T Trucking the violations involved were of a different type from those in- volved in the earlier cases, whereas the violations found in the present case are of the same type as and very similar to those which the Union was found to have committed in the Surgical Appliances case. Accordingly, I find that Respon- dent Union has demonstrated a "proclivity" for engaging in the type of coercive conduct shown in the present case. In any event, without reference to any other proceed- ings, the evidence in the case sub judice may in itself estab- lish the need for extraordinary remedies. As recently said in Local Union No. 69, Sheet Metal Workers (Wind Heating Company), 209 NLRB 875 (1974), fn. 2: "The Board has long held that a broad remedial order is appropriate when- ever a proclivity to violate the Act is established either by facts compelled by a particular case . . . or by prior Board 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Decision against the respondent at bar based upon similar unlawful conduct in the past." In the present hearing Acos- ta and Castro made it clear that , as agents for the Union, they held the Act and its administration in contempt. For example, Acosta, called as an adverse witness by the Gen- eral Counsel, proclaimed : "In respect to this the only thing we have to say is that these are fabricated cases and we do not wish to continue with this spectacle." Castro also pro- tested that he "does not recognize the authority of the law or of the Board that administers the law." He testified fur- ther: The main [function of an organizer for Respondent Union] is to see that the workers' rights are respected, that the laws that are in effect in this country be ap- plied in a manner favorable to the workers and when they cannot be they should be violated. s s s s First of all we [Union organizers] explain to [the workers] the unfairness of the Taft-Hartley Law which represents a straight jacket for the workers because it does not permit the normal development of organiza- tion ; that law represents a whole bureaucratic system which only serves to delay the organization process and permits lawyers like [the Company's attorney] and companies like Jacobs [to] go over the wishes of the majority of the employees in a shop. And toward the end of the hearing Castro persisted again in making sure "that people will understand that we are here against our will, that we do not acknowledge any au- thority of the Board over us." These purely gratuitous protestations, it should be borne in mind, were in lieu of any attempt to provide substantial or significant evidence in defense against the factual allegations of the complaint. On the basis of the pronouncements and demeanor of Acosta and Castro, I have no hesitancy in concluding that extraordinary remedies are called for to provide any rea- sonable hope of preventing further violations of the Act by Respondent Union and its various agents, including Re- spondent Serrano. Teamsters, Chauffeurs, Warehousemen and Helpers Local 85 (West Transportation, Inc.), 180 NLRB 709, 717-718 (1970). With this in mind, I turn to consideration of the specific remedies requested by the Charging Party. 1. Reimbursement of the Charging Party's and the General Counsel's Expenses: As the Charging Party recognizes, it is a "general and well-established principle that litigation ex- penses are ordinarily not recoverable ." Heck's, Inc., 191 NLRB 886, 889, reversed in pertinent part sub nom. Food Store Employees, Local 347 v. N.L.R.B., 476 F.2d 546 (C.A. D.C. 1973), remanded 417 U.S. 1 (1973). On the other hand, imposition of such costs is proper "in order to dis- courage future frivolous litigation , to effectuate the policies of the Act, and to serve the public interest." Tiidee Prod- ucts, Inc., 194 NLRB 1234, 1236 (1972). In view of Respondent's agents' proclaimed refusal to "acknowledge" the "authority" of the Act and the Board that administers it and their position that the law "should be violated" if it conflicts with the Union's view as to the best interests of the "workers," there is ample reason to believe that only a substantial and immediate monetary burden will serve to deter further resort to violence and threats of violence to impose the Union's will on employees and employers alike. Thus, it may well be said that assess- ment of such costs is clearly necessary to effectutate the policies of the Act and serve the public interest. There is, however, serious question as to whether Re- spondents' litigating this case may be termed "frivolous" within the Tiidee decision. Respondents' failure to present any substantial defense and Respondent Serrano's unex- plained failure to testify certainly suggest that Respondents were not litigating in good faith . Acosta's and Castro's statements strongly reinforce this impression. On the other hand, respondents generally have the right to require that the General Counsel be put to his proof initially. And, de- spite Respondents' failure to present any evidence contra- dicting the plethora of evidence against Serrano , there was some plausible basis for Respondents' argument that he was not an "agent" of the Union. Accordingly, while the matter is not entirely free from doubt, it is concluded that in the present case it would not be appropriate at this time to depart from the general rule against assessment of the costs of litigation.10 2. A broad order: While loudly proclaiming great con- cern for the plight of workers, the Union, through its agents, has resorted to brute force and threats of violence to deprive employees of the freedoms which the Act is de- signed to protect. As set forth, Castro stated the Union's position that laws "should be violated" when they cannot be applied in the way the Union believes is "favorable to the workers." And the Union's conduct in the present case " makes it clear that the Union does not consider as "favorable to the workers" any application of the law which permits them to choose not to honor a strike sup- ported by Respondent Union. The present record, there- fore, provides strong reason for fearing or predicting that Respondent will embark upon a similar course of strong- arm tactics to enforce any strike it might call at any time in the future. Accordingly, a broad cease-and-desist order is here appropriate. See, e.g., N.L.R.B. v. Teamsters, Local 327 [Hartmann Luggage Co.], 419 F.2d 1282, 1884 (C.A. 6, 1970); N.L.R.B. v. Local 138, 138A and 138B, International Unions of Operating Engineers [Cafasso Lathing & Plas- tering, Inc.], 377 F.2d 528 (C.A. 2, 1967). As suggested by the Charging Party, the order will be limited geographically to Puerto Rico. 3. Lost Wages: The Charging Party requests that Re- spondents he required to make compensation for wages lost by employees "who were prevented from entering to work because of the Respondents' violent conduct." It is perhaps sufficient here to point out , as the Charging 10 No opinion is here expressed as to whether such remedy would be appropriate if the litigation were to be further extended . Presumably the Board will be at liberty to impose such a requirement at a later stage of the proceedings (Union de Tronquistas de Puerto Rico, etc. (F. F. Instrument Cor- poration), 210 NLRB 1040 (1974) ), particularly if the pending Catalytic and Macal cases should result in orders against the Union and thus establish a broader "pattern of repeated unlawful actions." Orion Corp., 210 NLRB 633 (1974). 1' As well as in the Surgical Appliances case, supra. UNION NACIONAL DE TRABAJADORES Party apparently recognizes , thalt to date the Board has declined to grant any such remedy in strike violence cases. Union de Tronquistas de Puerto Rico, etc. (Lock Joint Pipe & Co. of Puerto Rico), 202 NLRB 43 ( 1973). Contrary to the Charging Party's contention, I understand Lock Joint as totally rejecting a backpay remedy in cases like this. Being bound by Board rulings , I have no authority to consider the Charging Party's arguments in favor of reconsidering the Lock Joint rule." As already indicated, I find that effectuation of the poli- cies of the Act requires that special measures be taken to assure employees of their freedom to refrain from support- ing the Union if they so desire. See Union de Tronquistas de Puerto Rico, etc. (F.F. Instrument Corporation), supra, and cases there cited . The fundamental condition for the pro- tection of employee rights is the employees' knowledge of those rights . The individual employee must have assurance 12 No opinion is here expressed as to whether there is sufficient probative evidence to warrant a finding that any employees did lose any wages as a result of the Union's restraint or coercion. Cf Union de Tronquistas de Puer- to Rico, etc. (F.F. Instrument Corporation), supra 413 that their guaranteed freedoms will be protected against incursions by unions as well as by employers . In the cir- cumstances of the present case, involving a small project in a somewhat isolated location , it appears necessary that no- tice be sent to each individual employee . And, since Jacobs apparently operates numerous relatively small projects, it appears wise, as a preventive measure , to require that all Jacobs' employees be given appropriate assurance that their rights will be protected . Accordingly, I shall recom- mend that Respondents be required to send copies of the prescribed notice to all employees of Jacobs Constructors in Puerto Rico. As is customary, I shall also recommend that Respon- dents be required to provide copies of the prescribed notice for posting by Jacobs. Additionally, since it has been found that Respondents are likely to engage in similar miscon- duct with respect to other employees, I shall provide that sufficient copies of the notice be made available to the Regional Director to furnish to other employers if and when it should appear that Respondent Union is engaging in or about to engage in similar activity with respect to the employees of such other employers. [Recommended Order omitted from publication.]