Union Nacional de Trabajadores

414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union Nacional de Trabajadores and Comite Organi- zador Obreros en Huelga de Catalytic and Catalytic Industrial Maintenance Co., Inc. Union Nacional de Trabajadores and Merck , Sharpe & Dohme Quimicas de Puerto Rico, Inc . Cases 24- CB-877, 24-CC-168, 24-CB-878, and 24-CC-169 July 23, 1975 DECISION AND ORDER On September 30, 1974, Administrative Law Judge Sidney D. Goldberg issued the attached Decision in this proceeding. Thereafter, Respondents, Charging Parties, and the General Counsel 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, and conclusions of the Administrative Law Judge. Member Kennedy's dramatically phrased dissent from our failure to award reimbursement of lost pay to employees who putatively were coerced into join- ing the strike, here and in the two companion cases, is based in great part upon legal arguments made in his joint dissent, with former Chairman Miller, in the Lock Joint Pipe case .2 We rejected those arguments there. Moreover, the fact that the full Board has so recently reviewed the policy considerations involved in awarding such reimbursement, as reflected in the opinions therein, is itself persuasive consideration re- opening this debate of long standing. The majority in Lock Joint Pipe decided to affirm the Board's prior decisions which as of then had "stood the test of 24 years of court litigation and Congressional scruti- ny." 3 Subsequent to Lock Joint Pipe, in the only case in which that policy was before a court for review, our refusal to award such a remedy was affirmed 4 In Lock Joint Pipe, as here, the union involved had repeatedly and flagrantly violated the Section 7 rights of employees. The only new argument we per- ceive in our colleague 's dissent is that he is shocked by Respondent Union's expressed contempt for the law and the Board, as well as by its actions which reflect contempt for employee rights. This argument ' 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 Union de Tronquistas de Puerto Rico, Local 901, affiliada a la Internation- al Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of Ameri- ca (Lock Joint Pipe & Co. of Puerto Rico), 202 NLRB 399 (1973) 3 Ibid. 4 N.L.R B V. Oil, Chemical and Atomic Workers International Union, AFL-CIO (Catalytic Industrial Maintenance Company, Inc J, 476 F.2d 1031 (C.A 1, 1973) Coincidentally, the same employer, although a different union, is before us in the instant case. appears to call not so much for remedy as for punish- ment. That, of course, is not part of our statutory function. Since there is an established and effective judicial remedy for actions in contempt of our lawful orders, we see no basis for adopting an extraordinary reme- dy to vent our displeasure over Respondent Union's expressed attitude. Unlike our dissenting colleague, counsel for the General Counsel has not asked us to overrule or distinguish Lock Joint Pipe. Indeed, the General Counsel himself, in accord with one of the alternatives suggested in the majority opinion there- in, has recently issued instructions on procedures for Regional Directors to follow in submitting recom- mendations for preliminary injunctions under Sec- tion 10(j), in cases of apparent violations of Section 8(b)(1)(A) involving violence or blocking of access to the place of employment.5 We have every reason to believe, therefore, that the General Counsel has un- dertaken to give serious consideration to the use of this remedy in appropriate cases, that he will prompt- ly bring to the Board's attention any situations in which he thinks we should authorize it, and that this will be regarded as a continuing obligation of that office. We think preliminary injunctive relief and ap- propriate use of contempt proceedings will provide more prompt and effective remedies than reimburse- ment of pay. They have the further advantage of not burdening our administrative proceedings with the difficult, exhausting, and potentially divisive task of determining which employees were absent from work because of union coercion, a burden which could substantially delay the disposition of such cases. We noted in Lock Joint Pipe that employees legally damaged by the tortious conduct of unions might be better served by pursuing those private remedies tra- ditionally used for the recovery of such damages. Use of such remedies would bring these employees before tribunals which have more experience and are better equipped than this Board to measure the im- pact of tortious conduct, including violence, and to make the victims whole, for loss of pay and any other injury .6 5 Nash. "Requests for Section 10(j) Injunctive Relief in Section 8(b)(1)(A) Cases" (January 30, 1975). These instructions state , for instance, that a 10(1) injunction may be warranted where the local or state police are ineffective in controlling the conduct, resulting in danger to employees or others seri- ously restraining their statutory rights, which would not be effectively remedied by a Board Order in the normal course. 6 Member Jenkins observes further that awarding backpay to workers intimidated by union actions is rather analogous to awarding backpay to workers who strike because of unlawful employer intimidation or coercion. In both types of cases, we would be faced with measuring how much and what kind of harassment or coercion justified the workers ' refusal to work. And why not, if the employer's intimidation prevented the employees from choosing union representation , award as backpay the additional wages which the union might have secured for them9 UNION NACIONAL DE TRABAJADORES 415 ORDERI Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that: A. Respondent Union Nacional de Trabajadores, Rio Piedras, Puerto Rico, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Restraining or coercing employees of Catalytic Industrial Maintenance Co., Inc.; Merck, Sharpe & Dohme Quimicas de Puerto Rico, Inc.; Juan Her- nandez, Inc.; Chase Overseas, Inc.; or Industries Freight, or the employees of any other employer in Puerto Rico, by mass picketing and other blocking tactics designed to prevent their ingress and egress to perform services for their respective employers at the premises of Merck, Sharpe & Dohme Quimicas de Puerto Rico, Inc., or Catalytic Industrial Mainte- nance Co., Inc., anywhere in Puerto Rico; or, by the use of force or violence or threats thereof, threaten- ing to inflict or actually inflicting physical injury or damage to the persons, families, or property of such employees, in order to compel them to honor Respondent's picket line established at such premises in connection with any labor dispute Respondent may have with Catalytic Industrial Maintenance Co., Inc. (b) Inciting, instigating, or permitting pickets or strikers under Respondent's control and direction to block or impede the ingress and egress at such prem- ises of supervisors, executives, and other manage- ment representatives of Catalytic Industrial Mainte- nance Co., Inc.; Merck, Sharpe & Dohme Quimicas de Puerto Rico, Inc.; Juan Hernandez, Inc.; Chase Overseas, Inc.; or Industries Freight, or any other employer in Puerto Rico; or, by the use of force or violence or threats thereof, threatening to inflict or actually inflicting physical injury or damage to their persons, families, or property, for the purpose of pre- venting them from rendering services at said prem- ises during the course of any dispute Respondent 7 In view of Respondent Union's repeated violations of the Act, whose authority it refuses to recognize , and considering the nature and extent of its unlawful conduct, as shown in this case , in the recent Union National de Trabajadores and its Agent Radames Acosta-Cepeda (Surgical Appliances Mfg. Inc.), 203 NLRB 106 (1973), and in the companion cases issued this day, Union National de Trabajadores and its Agent Alcides Serrano (Jacobs Constructors Company of Puerto Rico), 219 NLRB No 65 (1975), and Union Nacional de Trabajadores and its Agent Arturo Grant (Macal Container Cor- poration), 219 NLRB No. 67 ( 1975), we have found it necessary to modify the Order recommended by the Administrative Law Judge in certain re- spects so as to better effectuate the policies of the Act and serve the public interest. However, we do not believe that the same broad order and extraordinary remedial provisions are necessary in the case of Respondent Comite. The Comite consists only of employees of Catalytic and the only misconduct chargeable to it has arisen in the dispute with Catalytic herein. may have with Catalytic Industrial Maintenance, Co., Inc. (c) In any other manner restraining employees at Catalytic Industrial Maintenance Co., Inc.; Merck, Sharpe & Dohme Quimicas de Puerto Rico, Inc.; Juan Hernandez, Inc.; Chase Overseas, Inc.; or In- dustries Freight, or any other employer in Puerto Rico, in the exercise of rights guaranteed by Section 7 of the National Labor Relations Act, as amended. (d) Inducing or encouraging, by picketing or any other means, any individual employed by Merck, Sharpe & Dohme Quimicas de Puerto Rico. Inc.; Juan Hernandez, Inc.; Chase Overseas, Inc.; Indus- tries Freight, or any other person engaged in com- merce or in an industry affecting commerce, to en- gage in a strike or a refusal in the course of his employment to perform services for their respective employers, where an object thereof is to force or re- quire Merck, Sharpe & Dohme Quimicas de Puerto. Rico, Inc., or any other person, to cease doing busi- ness with Catalytic Industrial Maintenance Co., Inc.; or to force or require Catalytic Industrial Mainte- nance Co., Inc. to recognize or bargain with Union Nacional de Trabajadores as the representative of its employees, unless or until Union Nacional de Traba- jadores has been certified as the representative of such employees under the provisions of Section 9 of the Act. (e) Threatening, restraining, or coercing Merck, Sharpe & Dohme Quimicas de Puerto Rico, Inc.; Juan Hernandez, Inc.; Chase Overseas, Inc.; Indus- tries Freight, or any other person engaged in com- merce, or in an industry affecting commerce, particu- larly by the use of threats, force, violence, or property damage, where an object thereof is to force or require Merck, Sharpe & Dohme Quimicas de Puerto Rico, Inc., or any other person, to cease doing business with Catalytic Industrial Maintenance Co., Inc.; or to force or require Catalytic Industrial Main- tenance Co., Inc., to recognize or bargain with Union Nacional de Trabajadores as the representative of its employees, unless or until Union Nacional de Traba- jadores has been certified as the representative of such employees under the provisions of Section 9 of the Act. 2. Take the following affirmative action to effectu- ate the policies of the National Labor Relations Act, as amended: (a) Post at its business office at Calle Parque 214 (altos), Rio Piedras, Puerto Rico,, in both Spanish and English, copies of the attached notice marked "Appendix A." 8 Copies of said notice, on forms pro- s In 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 " 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vided by the Regional Director for Region 24, after being duly signed by representatives of Union Na- cional de Trabajadores, shall be posted by Respon- dent immediately upon receipt thereof, and be main- tained 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 to insure that said notices are not altered , defaced, or covered by any other material. (b) Forthwith mail copies of said notice, in both Spanish and English , to 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 Catalytic Industrial Maintenance Co., Inc.; Merck, Sharpe & Dohme Quimicas de Puerto Rico, Inc.; Juan Hernandez, Inc.; Chase Overseas, Inc., and Industries Freight; and to each of the aforesaid companies for posting by them, if willing, at their premises at any location in Puerto Rico in places where notices to employees are customarily posted. (c) Publish said notice, at its own expense, in all newspapers of general distribution published in Puer- to Rico, and in any newspaper of Respondent, 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 Respondent has taken to comply here- with. B. Respondent Comite Organizador Obreros en Huelga de Catalytic, Barceloneta, Puerto Rico, its of- ficers, agents, and representatives , shall: 1. Cease and desist from: (a) Restraining or coercing employees of Catalytic Industrial Maintenance Co., Inc.; Merck, Sharpe & Dohme Quimicas de Puerto Rico, Inc.; Juan Her- nandez, Inc.; Chase Overseas, Inc.; or Industries Freight, by mass picketing and other blocking tactics designed to prevent their ingress and egress to per- form services for their respective employers at the premises of Merck, Sharpe & Dohme Quimicas de Puerto Rico, Inc., or Catalytic Industrial Mainte- nance Co., Inc., anywhere in Puerto Rico; or, by the use of force or violence or threats thereof , threaten- ing to inflict or actually inflicting physical injury or damage to the persons, families, or property of such employees, in order to compel them to honor Respondent's picket line established at such premises in connection with any labor dispute Respondent may have with Catalytic Industrial Maintenance Co., Inc. (b) Inciting, instigating, or permitting pickets or strikers under Respondent's control and direction to block or impede the ingress and egress at such prem- ises of supervisors, executives, and other manage- ment representatives of Catalytic Industrial Mainte- nance Co., Inc.; Merck, Sharpe & Dohme Quimicas de Puerto Rico, Inc.; Juan Hernandez, Inc., Chase Overseas, Inc.; or Industries Freight ; or, by the use of force or violence or threats thereof , threatening to inflict or actually inflicting physical injury or damage to their persons, families, or property, for the purpose of preventing them from rendering services at said premises during the course of any dispute Respon- dent may have with Catalytic Industrial Mainte- nance Co., Inc. (c) In any like or related manner restraining em- ployees of Catalytic Industrial Maintenance Co., Inc.; Merck, Sharpe & Dohme Quimicas de Puerto Rico, Inc.; Juan Hernandez, Inc.; Chase Overseas, Inc.; or Industries Freight, in the exercise of rights guaranteed by Section 7 of the National Labor Rela- tions Act, as amended. (d) Inducing or encouraging , by picketing or any other means, any individual employed by Merck, Sharpe & Dohme Quimicas de Puerto Rico, Inc.; Juan Hernandez, Inc.; Chase Overseas, Inc.; Indus- tries Freight, or any other person engaged in com- merce or in industry affecting commerce , to engage in a strike or a refusal in the course of his employ- ment to perform services for their respective employ- ers, where an object thereof is to force or require Merck, Sharpe & Dohme Quimicas de Puerto Rico, Inc., or any other person, to cease doing business with Catalytic Industrial Maintenance Co., Inc.; or to force or require Catalytic Industrial Maintenance Co., Inc., to recognize or bargain with Comite Or- ganizador Obreros en Huelga de Catalytic as the rep- resentative of its employees, unless or until Comite Organizador Obreros en Huelga de Catalytic has been certified as the representative of such employ- ees under the provisions of Section 9 of the Act. (e) Threatening, restraining, or coercing Merck, Sharpe & Dohme Quimicas de Puerto Rico, Inc.; Juan Hernandez, Inc.; Chase Overseas, Inc.; Indus- tries Freight, or any other person engaged in com- merce, or in an industry affecting commerce, particu- larly by the use of threats, force, violence, or property damage, where an object thereof is to force or require Merck, Sharpe & Dohme Quimicas de Puerto Rico, Inc., or any other person, to cease doing business with Catalytic Industrial Maintenance Co., Inc.; or to force or require Catalytic Industrial Main- tenance Co., Inc., to recognize or bargain with Com- ite Organizador Obreros en Huelga de Catalytic as the representative of its employees, unless or until UNION NACIONAL DE TRABAJADORES Comite Oganizador Obreros en Huelga de Catalytic has been certified as the representative of such em- ployees under the provisions of Section 9 of the Act. 2. Take the following affirmative action to effectu- ate the policies of the National Labor Relations Act, as amended: (a) Post at its business office, in both Spanish and English, copies of the attached notice marked "Ap- pendix B." 9 Copies of said notice, on forms provided by the Regional Director for Region 24, after being duly signed by representatives of Comite Organiza- dor Obreros en Huelga de Catalytic, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail to the Regional Director for Region 24 signed copies of the said notice, in both Spanish and English, for posting, if willing, by Catalytic Industrial Maintenance Co., Inc.; and by Merck, Sharpe & Dohme Quimicas de Puerto Rico, Inc.; Juan Hernan- dez, Inc.; Chase Overseas, Inc.; and Industries Freight, at their premises at any location in Puerto Rico, in places where notices to employees are cus- tomarily posted. (c) Notify the Regional Director for Region 24, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. MEMBER KENNEDY, dissenting in part: This is Union Nacional and we kill people. So leave. This proclamation, made by Respondent Nacional's president, Arturo Grant, to an employee seeking to cross a picket line and perform his job, dramatically demonstrates the utter contempt with which this Union holds employees' Section 7 rights. Never in my 28 years with this Agency have I en- countered such continuous reprehensible conduct on the part of union officials as is displayed in this case and the two companion cases issued herewith.1° As the Administrative Law Judge in this case put it: 9 See In. 8, supra. 10 Union Nacional de Trabajadores and its Agent Alcides Serrano (Jacobs Constructors Company of Puerto Rico). 219 NLRB No. 65 (1975); Union Nacional de Trabajadores and its Agent Arturo Grant (Macal Container Cor- poration), 219 NLRB No. 67 ( 1975). For a discussion of the unlawful con- duct engaged in by this Respondent in those cases, see my dissenting opin- ions therein. The statement of President Grant quoted above occurred in the Macal case. 417 The nature and extent of the restraint and coer- cion exerted by respondents through the vio- lence and threats of violence shown in this case and in the Surgical Appliances case," however, show that they have adopted these practices as part of their normal method of carrying on their activities. [Emphasis supplied.] My colleagues acknowledge the seriousness of the conduct found in these cases. And, yet, they fail to provide a remedy for the real victims of this con- duct-the employees who were prevented from pur- suing their livelihood and who were systematically subjected to assaults, threats of assaults, and similar violence. A notice is no substitute for lost wages. And if Respondents' officials are to be taken at their word, our notices and cease-and-desist orders will be meaningless as a deterrent to the commission of simi- lar unlawful conduct in the future. In my judgment, the only meaningful and effective way to remedy these cases is to require Respondents to reimburse the employees for wages lost as a result of their un- lawful restraint and coercion." In each of these three cases, Union Nacional de Trabajadores (hereafter Respondent or Union) is named as a respondent. In none of the cases is the Union certified or recognized as the representative of the employees involved. In the instant case (hereafter Catalytic), the employees of Catalytic Industrial Maintenance Co., Inc.-a construction firm-struck their employer on November 20, 1973, at its jobsite on the premises of Merck, Sharpe & Dohme Quimi- cas de Puerto Rico, Inc." Although separate gates were established for Catalytic and Merck employees, all entrances to Merck's 115-acre tract of land were picketed." In order to acquire a perspective on the tactics utilized by Respondent's officials in denying to employees their Section 7 right to refrain from engaging in union activities, a chronological descrip- tion of the major events in the Catalytic strike fol- lows. 11 Union Nacional de Trabajadores and its agent Radames Acosta-Cepeda (Surgical Appliances Mfg, Inc ), 203 NLRB 106 (1973), is yet another case in which Respondent National, through its officers, was found to have violat- ed Sec. 8(b)(IXA) by engaging in violence and threats of violence similar to that found here. 12 See my joint dissent with former Chairman Miller in Union de Tronquis- tas de Puerto Rico, Local 901, affthada a la International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (Lock Joint Pipe & Co of Puerto Rico), 202 NLRB 399 (1973). 13 All dates refer to calendar year 1973 In addition to the Union, the strike was also supported by co-respondent Comite Organizador Obreros en Huelga de Catalytic, an organization consisting primarily of Catalytic em- plojees 1 Union officials readily acknowledged to Merck employees and officers the secondary object of the picketing at the entrances reserved for them. 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Prerestraining Order Conduct The strikers first became effectively mobilized un- der the leadership of Efrain Serrano, Alcides Serra- no, and Radames Acosta-Cepeda on Friday, Novem- ber 23. All three are admitted agents of the Union." On that date, Efrain Serrano announced that no em- ployees or vehicles would be permitted to enter or leave the Merck plant. Accordingly, some 39 Merck employees were required to remain inside the plant during the entire 15-day period that the picketing continued. The establishment of makeshift living quarters and visitation privileges for spouses became necessary. On this same day, trucks owned by Chase and by Hernandez, Merck suppliers, were detained at the gate, and the drivers thereof threatened with physical harm. Indeed, the Hernandez driver was forced to abandon his truck with its explosive cargo of ammo- nia in the middle of the access road leading to the Merck plant. Thereafter until December 3, trucks owned by Chase were daily refused entrance to Merck's premises and were stoned each time they attempted to service Merck or adjacent customers.16 In addition to the truckdrivers, several Merck em- ployees were also threatened with physical harm if they "interfered with" the pickets. During the weekend of Saturday, November 24, and Sunday, November 25, Efrain Serrano threat- ened to bomb Merck's water supply and cut off the electricity. The electricity was in fact subsequently short-circuited by a chain thrown across several high voltage wires. As earlier, the trucks of suppliers con- tinued to be turned away. Over the weekend, Merck officials became increas- ingly concerned with the dangerous condition creat- ed by the location of the Hernandez ammonia truck on the access road. Pleas that Merck was not in- volved in the strikers' dispute with Catalytic and warning that the truck presented a grave danger to everyone proved unavailing. Three union agents, Carlos Rodriguez and Efrain and Alcides Serrano, adamantly refused to permit the truck to be moved. Finally, at 4 a.m. on Monday morning, November 26, the truck was moved with a police escort. Efrain Serrano threatened to kill both the truckdriver and 15 Alcides Serrano was named as an individual respondent in Jacobs Acosta-Cepeda, Respondent's secretary -treasurer, was named as an individ- ual respondent in Surgical Appliances and was also briefly involved in the Jacobs dispute 16 The harassment of suppliers and other individuals having business at a struck facility is a technique frequently utilized by Respondent. In Jacobs, for example, a truckdnver, as well as a representative from the Environmen- tal Quality Board (a local governmental agency), was threatened . The gov- ernment agent was told by Alcides Serrano that he (Serrano) "was going to hit him" and "would break his bones" if he did not leave and, should the agent return the pickets "would tear his car up " the Merck plant manager who planned the move. Merck employees attempting to report for work Monday morning were surrounded by approximately 20 pickets and were told by Efrain Serrano that they could not go in. In the process, nine cars were turned away and one car was hit with sticks and other ob- jects. In a similar fashion, the second-and-third shift employees were prevented from working. Employees caught inside the plant were warned not to leave. Employees who did not cooperate with the strike were threatened with physical harm." Monday, November 26, also proved to be a diffi- cult day for Merck's personnel manager, Victor Charron: the car in which he was riding was hit, kicked, and detained until the police intervened. Thereafter, Efrain Serrano warned Charron that "I'll cut you in Barceloneta [a nearby town]." 18 On Tuesday, November 27, the pickets continued to harass individuals attempting to work. A car occu- pied by several Merck female secretaries was struck repeatedly as it passed through the picket line, as was a car driven by a Catalytic area superintendent. A Merck utility supervisor was punched in the jaw; a Merck safety engineer was struck by a picket; Efrain Serrano threatened to assault a Merck production su- pervisor, and Catalytic's mechanical superintendent, Sam Ambrose, had his car struck and was threatened with physical harm if he crossed the picket line. Fi- nally, Alcides Serrano and several pickets blocked the access road within Merck's plant area by parking two cars across the road. On Wednesday, the pickets threatened to blow up the Merck plant with all of the employees inside. In addition, a car driven by Merck employee Pacheco Sanchez required police assistance to get through the picket line. Sanchez was told by Efrain Serrano that he (Serrano) was going "to get him at his home." and "give him a beating." The United States District Court for the District of Puerto Rico issued a temporary restraining order 17 As my separate dissenting opinions in Jacobs and Moral indicate, in all three of these cases employees who desired to return to work were forcibly detained from doing so In Jacobs, Alcides Serrano quickly extinguished a back-to-work movement which had started in his absence from the jobsite. He thereafter imported a "gang" of 8-12 nonemployees "who, carrying pipes and sticks, [mingled] with the striking employees" for the announced purpose of guaranteeing that "no one will go to work ." In Macal, several employees were told by President Grant, "This is Union Nacional and we are not responsible for what will happen to you . . . Get the hell out of here " At another point, according to the credited testimony, Grant indi- cated that if the employees went to work, he "would blow the top of their heads off." is Management officials have been subjected to physical abuse by Respondent's officials In Surgical Appliances, for example, Acosta-Cepeda poured hot coffee on a company supervisor and assaulted both the compa- ny president and his wife. In Jacobs, Alcides Serrano told the construction superintendent, "I'm going to bust your face." and had to be restrained from subsequently striking this same individual with a hammer Finally, in Macal, President Grant pushed the company president down a flight of stairs, the injuries from which required 5 months' of hospitalization UNION NACIONAL DE TRABAJADORES 419 against all secondary picketing. The order was served on Respondent the following day, Sunday, Decem- ber 2. 2. Postrestraining Order Conduct The pickets ignored the restraining order.19 On Monday morning, two Merck employees had their cars stoned when they attempted to enter the plant. On Tuesday, Secretary-Treasurer Acosta-Cepeda blocked the main entrance to the plant with a car and threw stones at the car of a Catalytic project superintendent.20 Finally, matters came to a head on Wednesday, December 5, when a caravan of Catalytic employees attempting to go to work were intercepted by five cars carrying union officials and agents armed with clubs and other weapons. The union agents started pounding one of the cars and Alcides Serrano struck Catalytic General Foreman Urbiztondo. The Cata- lytic employees left their cars and formed a line along the side of the road creating a dangerous con- frontation. Violence was averted only by police inter- vention. Later that day, Catalytic employee Ismael Rodriguez was threatened with a knife by Alcides Serrano who wanted to know why he had gone to work; was threatened by Efrain Serrano with a ham- mer; and was pushed and forced into a fight by Union Agent Julio Denis. The strike finally ended on December 6. The foregoing conduct illustrates the contempt with which this Union has treated employee rights. Pronouncements by union officials during the Jacobs hearing clearly demonstrates that such conduct is certain to continue in the future-Board and court cease-and-desist orders to the contrary notwithstand- ing. For, as the Administrative Law Judge in Jacobs found, the union officials hold "the Act and its ad- ministration in contempt." Acosta-Cepeda, for exam- ple, stated: [T]he only thing we have to say is that these are fabricated cases and we do not wish to continue with this spectacle. Union Organizer Elias Samuel Castro-Ramos pro- claimed during the Jacobs hearing 21 that he "does not recognize the authority of the law or of the Board 19 This is precisely the response which Acosta -Cepeda had earlier defiant- ly predicted . On November 26, he told employees that "Nacional had al- ready disregarded and violated an injunction," and on November 27 prom- ised that "the unions were not going to obey such injunction ... (and] the union was ready to go to jail." 20 Acosta-Cepeda was found in Surgical Appliances to have thrown stones at employees crossing the picket line to go to work. 21 Castro-Ramos was also involved in the unlawful conduct found in Ma- cal that administers the law." He then testified as fol- lows: The main [function of an organizer for Respon- dent Union] is to see that the workers' rights are respected, that the laws that are in effect in this country be applied in a manner favorable to the workers and when they cannot be they should be violated. First of all we [Union organizers] explain to [the workers] the unfairness of the Taft-Hartley Law which represents a straight jacket for the work- ers because it does not permit the normal devel- opment of organization; that law represents a whole bureaucratic system which only serves to delay the organization process and permits law- yers like [the Company's attorney] and compa- nies like Jacobs [to] go over the wishes of the majority of the employees in a shop. [Emphasis supplied.] It is evident that Castro-Ramos' assertion that the law should be applied in a "manner favorable to the workers" has reference to only those workers who support this particular Union. It is obvious that as far as Union Nacional officials are concerned em- ployers and workers opposed to their efforts have no rights. I am mystified by the failure to give a meaningful remedy to the real victims of the violent conduct in these cases-those employees who were restrained and coerced from going to work. The failure to give a monetary remedy here is in sharp contrast to a recent case where two of my colleagues in the majority or- dered reimbursement of $27.60 in postage fees to a labor organization 22 But my colleagues are unwilling to order a labor organization to reimburse lost wages to employees who were prevented from working by the Union's widespread violence in open defiance of the Act. The authority of the Board to issue backpay orders is derived from Section 10(c) of the Act. [W] here an order directs reinstatement of an employee, back pay may be required of the em- ployer or labor organization, as the case may be, responsible for the discrimination suffered by him. . . . [Emphasis supplied.] We have held, with court approval, that it is unneces- sary to find an 8(b)(2) violation as a prerequisite to issuing a backpay order against a labor organiza- tion-an 8(b)(l)(A) violation, standing alone, is suffi- cient.23 Indeed, the Supreme Court in Phelps Dodge 22 F W Woolworth Co, 216 NLRB No. 155 (1975). 23 The National Cash Register Company, 190 NLRB 581, 585 ( 1971), enfd. Continued 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Corporation v. N.L.R.B., instructed that "[m]aking the workers whole for losses suffered on account of an unfair labor practice is part of the vindication of the public policy which the Board enforces." 24 It is difficult to conceive of a situation in which backpay orders could be more appropriate than in the instant cases. What purpose of the Act is effectu- ated and what public interest is served by withhold- ing backpay? We are not concerned here with those occasional situations in which tempers flare on the picket line and strikers momentarily engage in what has been euphemistically referred to as "mere animal exuberance." Here we are dealing with a drastically more serious problem. We are dealing with a labor organization which denounces the laws applicable to its conduct and which systematically threatens the lives of any and all individuals who dare to act in any manner contrary to its self-interest. In my judgment, the public has every right to expect this Board to issue a backpay order to the victims of the statutory violations committed by Respondents. We cannot justify uneven, inequitable applications of the Act. In Phelps Dodge Corp., supra, Mr. Justice Frank- furter praised this Board for the manner in which it had historically exercised its authority to award backpay. He stated: [In] applying its authority over back pay orders, the Board has not stereotyped formulas but has availed itself of the freedom given it by Congress to attain just results in diverse, complicated situ- ations 25 With these three decisions, the Board proves itself undeserving of such confidence. Accordingly, I dis- sent. 466 F.2d 945, 946, (C.A. 6, 1972), cert. denied 410 U.S. 966 (1973). u 313 U.S. 177, 197 (1941) 25 313 U.S. at 198. APPENDIX A WE WILL NOT use force or violence, or threats thereof, or cause property damage, to restrain or coerce employees of Catalytic Industrial Main- tenance Co., Inc.; Merck, Sharpe & Dohme Qui- micas de Puerto Rico, Inc.; Juan Hernandez, Inc.; Chase Overseas, Inc.; Industries Freight, or the employees of any other employer in Puer- to Rico, from performing their work. WE WILL NOT use mass picketing and other blocking tactics designed to prevent employees or supervisors or other managers of Catalytic, Merck, Hernandez, Chase, Industries Freight, or any other employer in Puerto Rico, from enter- ing their place of employment in order to com- pel them to honor a picket line established by us. WE WILL NOT engage in, or induce or encour- age any individual employed by Merck, Hernan- dez, Chase, Industries Freight, or any other per- son engaged in commerce or in an industry affecting commerce, to engage in a strike or re- fusal in the course of his employment to perform any services, where an object thereof is to force or require Merck, or any other person, to cease doing business with Catalytic, or where an ob- ject is to force or require Catalytic to recognize or bargain with us as the representative of its employees unless or until we have been certified as the representative of Catalytic's employees under the provisions of Section 9 of the National Labor Relations Act. WE WILL NOT threaten, coerce, or restrain Merck, Hernandez, Chase, Industries Freight, or any other person or employer engaged in com- merce or in an industry affecting commerce, where in any case it has one of the above-de- scribed objects. WE WILL NOT in any other manner restrain or coerce employees of Catalytic, Merck, Hernan- dez, Chase, Industries Freight, or employees of any other employer in Puerto Rico, in the exer- cise of rights guaranteed employees by Section 7 of the National Labor Relations Act. NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all parties had an opportunity to present evidence, the National Labor Relations Board has found that we violated the law and has ordered us to post this notice. To carry out the Order of the Board and any subsequent judgment of a court enforcing the Board's Order, we hereby notify you as follows: UNION NACIONAL DE TRABAJADORES APPENDIX B NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all parties had an opportunity to present evidence, the National Labor Relations Board has found that we violated the law and has UNION NACIONAL DE TRABAJADORES 421 ordered us to post this notice. To carry out the Order of the Board and any subsequent judgment of a court enforcing the Board's Order, we hereby notify you as follows: WE WILL NOT use force or violence, or threats thereof, or cause property damage, to restrain or coerce employees of Catalytic Industrial Main- tenance Co., Inc.; Merck, Sharpe & Dohme Qui- micas de Puerto Rico, Inc.; Juan Hernandez, Inc.; Chase Overseas, Inc.; or Industries Freight, from performing their work. WE WILL NOT use mass picketing and other blocking tactics designed to prevent employees or supervisors or other managers of Catalytic, Merck, Hernandez, Chase, or Industries Freight, from entering their place of employment in or- der to compel them to honor a picket line estab- lished by us. WE WILL NOT engage in, or induce or encour- age any individual employed by Merck, Hernan- dez, Chase, Industries Freight, or any other per- son engaged in commerce or in an industry affecting commerce, to engage in a strike or re- fusal in the course of his employment to perform any services, where an object thereof is to force or require Merck to cease doing business with Catalytic, or where an object is to force or re- quire Catalytic to recognize or bargain with us as the representative of its employees unless or until we have been certified as the representative of Catalytic's employees under the provisions of Section 9 of the National Labor Relations Act. WE WILL NOT threaten, coerce, or restrain Merck, Hernandez, Chase, Industries Freight, or any other person or employer engaged in com- merce or in an industry affecting commerce, where in any case it has one of the above-de- scribed objects. WE WILL NOT in any like or related manner restrain or coerce employees of Catalytic, Merck, Hernandez, Chase, or Industries Freight, in the exercise of rights guaranteed employees by Section 7 of the National Labor Relations Act. COMITE ORGANIZADOR OBREROS EN HUELGA DE CATALYTIC DECISION SIDNEY D. GOLDBERG, Administrative Law Judge: This case involves allegations of unlawful picketing, violence, and threats of violence. The complaint herein,' pursuant to Section 10(b) of the National Labor Relations Act, as amended (the Act), alleg- es that Union Nacional de Trabajadores (the Union) and Comite Organizador Obreros en Huelga de Catalytic (the committee) are labor organizations; that through named agents, in the course of a strike against Catalytic Industrial Maintenance Co., Inc. (Catalytic), they conducted mass picketing at the premises of Merck, Sharpe & Dohme Qui- micas de Puerto Rico, Inc. (Merck); that they engaged in violence and threats of violence; and that they engaged in said picketing and violence to force Merck to cease doing business with Catalytic and to force Catalytic to recognize the union as the representative of its employees although not certified as such representative. Respondents answered, admitting that the named per- sons were their agents, but denying that they had engaged in violence or unlawful picketing. The issues so raised came on for trial before me on Janu- ary 29, 1974, at Hato Rey, Puerto Rico. All parties were represented and the hearing opened with the presentation of .the case of the General Counsel. At the opening of the second day of the hearing the General Counsel announced that a settlement in principle had been reached with the attorney for the Respondents. The proposed settlement was reduced to writing: it provided for the entry of a Board order directing respondents to cease and desist from activi- ties which were described in detail and were similar to the activities alleged in the complaint as constituting unfair labor practices under Section 8(b)(1)(A) and 8(b)(4)(i) and (ii)(B) of the Act. It also provided for the entry, without notice to respondents, of a court decree enforcing the said Board order. The Charging Parties objected to the proposed settle- ment; they stated that respondents had violated the tempo- rary restraining order issued by the United States district court and had announced that they would ignore Board orders. An evidentiary hearing was held on the matter in which all parties participated. At the close of that hearing I denied the application for approval of the proposed settle- ment and directed that the trial of the case proceed. The General Counsel applied to the Board for leave to appeal from that ruling and the Board, by telegraphic order dated February 6, granted the General Counsel an appeal from my refusal to postpone the hearing. It directed that the hearing be postponed indefinitely pending the Board's con- sideration of the proposed settlement agreement. This di- rective was effected. By order dated April 4, 1974, the Board held that my ruling not to approve the proposed settlement stipulation and to direct that the hearing of the issues be resumed on the merits was a proper exercise of discretion; that it should be, and it was, affirmed. The Board also, ordered that the record be reopened for further hearing-before me, and, by order of the Regional Director dated April 11, the case was set forth for such further hearing on May 22, 1974. That order was duly served on the Respondent Union Nacional and its counsel. On May 22, pursuant to the order of the Regional Direc- tor, the case was called for hearing: The General Counsel and counsel for the Charging Parties were present but no I Issued January 2, 1974, on charges filed November 26 and 28, 1973. 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representative of, or counsel for, either of the Respondents was present. The counsel present were directed to commu- nicate with Respondents' officials and their counsel; they reported that they had talked with both Arturo Grant, president of Respondent Union Nacional, and with coun- sel for Respondents, and that they had both stated that they were otherwise occupied and could not appear in this case. The taking of evidence on the issues thereupon proceed- ed on May 22, 23, and 24. At the end of each day, counsel were directed to make all possible efforts to communicate with Respondents and their counsel ; to inform them that the taking of evidence was proceeding and that , if respon- dents desired to participate, they should have a representa- tive present. Each day, participating counsel reported the results of their efforts. On May 24, the General Counsel received a telegram from Grant which stated that represen- tatives of Union Nacional could not appear and that it could not communicate with its counsel so that he could appear. On May 24, the record was completed to the satis- faction of the General Counsel and counsel for the Charg- ing Parties. The General Counsel was directed to write let- ters to Respondent Union Nacional and its counsel, informing them that the record had been completed; that the General Counsel and counsel for the Charging Parties had been given until June 19, 1974, to submit proposed findings, conclusions, and orders ; that copies of all docu- ments so submitted would be served on them ; and that they had been given until June 28, 1974, to submit objec- tions or cross-findings. Thereafter, on June 19 and July 8, 1974, counsel for the Charging Parties filed proposed findings of fact, conclu- sions of law, and an order, together with a brief in support thereof, with proof of due service thereof on the General Counsel, on Respondents, and on their counsel. The Gen- eral Counsel has not submitted a brief and no documents of any kind have been submitted by Respondents or their counsel. The evidence adduced by the General Counsel and the Charging Parties was not contradicted or controverted by Respondents. The undisputed evidence supports the allega- tions of the complaint and I find that Respondents, by their conduct, violated Section 8(b)(1)(A) and Section 8(b)(4)(i) and (ii)(B) of the Act. Upon the entire record herein ,2 I make the following: FINDINGS OF FACT 1. Merck is a Puerto Rico corporation engaged in 'the manufacture of chemical and related products at its plant 2 During the argument and the evidentiary hearing concerning the pro- posed settlement, Respondents were represented by their counsel but, be- cause of the limited nature of the issue involved, I placed some limitations on the extent of cross-examination of the witnesses presented . To counter- balance this restriction, I announced that the testimony taken during the evidentiary heanng would not be considered in determining the issues on their merits if the proposed settlement should be rejected and the case ear- ned to decision. Accordingly, in the formulation of this decision, no consid- eration has been given to the testimony of the II witnesses presented on February 5. The only exhibits presented that day, however, are Board ac- tions of which official notice is taken and they are entitled to consideration without the stated limitation. in Barceloneta, Puerto Rico. In the operation of its busi- ness it annually purchases materials directly from sources outside Puerto Rico valued in excess of $50,000 and its direct sales outside of Puerto Rico annually exceed $50,000. At all times material herein Merck has been, and is, an employer engaged in commerce. 2. Catalytic is a Delaware corporation engaged in the performance of construction work in several States. It has been engaged in such work for Merck on the latter's above- described premises and is an employer engaged in com- merce. 3. Juan Hernandez, Inc. (Hernandez), Chase Overseas, Inc. (Chase), and Industries Freight (Industries) are inde- pendent trucking firms engaged in contract hauling of car- go and other material to and from Merck and other per- sons engaged in commerce. 4. Union National de Trabajadores, herein called the Union, is, and has been at all times material herein, a labor organization. 5. Comite Organizador Obreros en Huelga de Catalytic, which, translated into English, is Organizing Committee of Workers on Strike at Catalytic and is herein called the committee, was at the times material herein a labor organi- zation. 6. At no time material herein was either the union or the committee recognized or certified as the collective-bargain- ing representative of the employees of either Catalytic or Merck. 7. The following named persons are members of the committee and officers of the union and acted as their agents herein : Arturo Grant Padro, union president; Ra- dames Acosta Cepeda, union secretary-treasurer; Carlos Rodriguez, union organizer; Vicente Gonzalez, committee member; Efrain Serrano, committee member; Alcides Ser- rano, committee member; and Julio Denis, committee member. 8. The premises of Merck involved herein consists of a tract of land containing approximately 115 acres, bounded on the north by Highway No. 2 and on the west by a public highway leading to the main entrance of Merck , as well as the premises of other persons. The distance from the main entrance of Merck on the public road to the Merck plant and the portion of the premises where Catalytic was per- forming its construction work is about half a mile. There is a paved road leading from that entrance to the Merck plant and the parking areas adjacent to the plant. 9. At the times material herein and for the purpose of carrying on the construction work on a part of Merck's premises, separate entrances were provided for the employ- ees of Merck and of Catalytic, respectively, and separate areas were provided for the parking of their automobiles. 10. Beginning November 20, 1973,3 the committee, through its members, and the Union, through its agents and employees of Catalytic, engaged in a strike against Catalytic. 11. At no time material herein were Respondents, or either of them, engaged in a labor dispute with Merck, Hernandez, Chase, or Industries. 12. On November 21, the union began picketing in front 7 All dates hereafter, not otherwise designated, are 1973. UNION NACIONAL DE TRABAJADORES 423 of the gate reserved for Merck employees. 13. On Friday, November 23, about 5:30 a.m.. Respon- dents, by their agent Efrain Serrano, stated over loud- speakers outside the Merck plant that neither Merck nor Catalytic employees, and no vehicles, would be permitted to enter or leave the Merck plant. 14. On November 23, the union, during its picketing at the entrance reserved for Merck employees, threatened to "damage" a security guard of Merck if he became "in- volved" with them. 15. On November 23, a truck from Chase, which re- moves liquid waste from Merck on a daily basis, was stopped on the entrance road into the Merck plant by a group of strikers including Respondent's agent Carlos Ro- driguez and they refused to allow the truck to enter Merck's premises. 16. On November 23, an employee of Hernandez at- tempted to deliver a tank of ammonia to Merck and was detained and blocked by 25 pickets at the entrance to Merck's premises; Respondents' agent Carlos Rodriguez, in the presence of Radames Acosta, the union's secretary- treasurer, told the Hernandez employee that he would not be permitted to enter Merck's premises and that, if he at- tempted to enter, it would be on his own responsibility; that, by reason of such threats and intimidation, the em- ployee of Hernandez was forced to, and did, abandon the truck outside the Merck plant, although he informed Re- spondents' agents that the truck carried a dangerous cargo. On the afternoon of that day Respondents' agents stated, over their loudspeaker, that neither the tank of ammonia nor any other vehicle would be permitted to enter the Merck plant. 17. On November 23, an employee of Chase was permit- ted to leave Merck's premises with a truckload, but was physically blocked from reentering the plant, and was de- tained by a group of pickets at the entrance to Merck's premises. The employee of Chase informed the pickets that he was there to service Merck; they responded that they were not letting any vehicle go into the plant, regardless of whether it was servicing Merck or Catalytic because their pressure on Merck would compel Merck to exert pressure on Catalytic to resolve its problems with the union, and the truck was not allowed to enter Merck 's premises. 18. On each working day between November 23 and December 3, employees of chase attempted to enter Merck's premises, but were not permitted to do so by the pickets; during this period vehicles of Chase were struck by rocks as they attempted to enter the Merck plant and as they entered and left other plants which they serviced in the immediate area. 19. On November 23, Julio Denis, member of the com- mittee, threatened a Merck employee , in the presence of Carlos Rodriguez, a union organizer, with a beating "if he interfered with them," referring to the pickets. 20. On the morning of November 24, the plant manager of Merck, in the presence of Respondents' agent, Carlos Rodriguez, informed the pickets that Merck was not in- volved in the labor dispute which the strikers had with Catalytic and that the ammonia truck had to be removed to a safe area since it was volatile and explosive . The strik- ers responded by stating that they were not going to permit anyone to enter the plant even though they knew it was illegal for them to do so. Later that same day the plant manager again requested that the pickets permit the am- monia truck to be stored in a safe area and again the strik- ers, in the presence of Respondents' agents, Carlos Rodri- guez, Efrain Serrano, and Alcides Serrano, refused to do so, again stating that no one was to enter the plant. Not until 4 a.m. on November 26 was the ammonia truck moved by a Merck employee, under police escort, to an area within the plant premises. 21. On the evening of November 25, Julio Denis stated over the loudspeaker at the Merck plant that the ammonia trailer might explode. 22. During this same period, Efrain Serrano threatened to bomb Merck's water wells, which are located outside the company fence. 23. Efrain Serrano also stated over the loudspeakers that the light and electric power might go out and thereafter the lights did go out by reason of a short circuit caused by a steel chain that was thrown over the high voltage line in- side the Merck property. 24. On November 26, after the ammonia truck had been brought inside the plant premises, respondents, through Efrain Serrano and in the presence of Carlos Rodriguez, stated over the loudspeakers that "they were going to get Mr. Ashby [the plant manager] and kill him as soon as they saw him in the street." Serrano also stated that the driver of the ammonia truck should be careful of his own personal safety. 25. On November 24, at approximately 10 a.m., an em- ployee of Industries arrived at the Merck premises to deliv- er a tank of acid; he was stopped at the plant entrance by a group of about 15 persons who informed him that they were on strike and that he could not go into the plant. The pickets forced the driver to leave the truck parked at the picket line and only under picket escort was he permitted to enter the Merck office to communicate with his superi- ors. Upon returning to the truck, he found it impossible to enter the Merck premises by reason of mass blocking by the pickets and he returned the truck to his employer's place of business. 26. On or about November 24, the truck of an employer, attempting to deliver food to Merck's cafeteria, was blocked at the entrance of the plant by a group of pickets, and was not permitted to enter. 27. On or about November 24, the truck of an employer, attempting to make a delivery of milk to Merck's cafeteria, was blocked at the entrance of the plant by a group of pickets, and was not permitted to enter. 28. On November 25. Respondents, through Efrain Ser- rano, stated over the loudspeakers at the Merck plant that no one was going to be permitted to enter the Merck plant on the next day. By reason of this statement, those employ- ees who were in the plant on November 25 were compelled to remain inside. 29. On November 26, at approximately 6 a.m., Respon- dents, through Radames Acosta, secretary-treasurer of the union; and in the presence of Efrain Serrano and Alcides Serrano, members of the committee, stated that the em- ployees of Catalytic should join the Union, and they should not be afraid because Union Nacional had already 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD disregarded and violated an injunction. 30. On November 26, respondents, through their agents set forth above, immediately following the foregoing state- ments, announced over the loudspeakers that the Merck employees were not going to be permitted to enter the plant the following day. 31. On November 26, at 6 a.m., the Merck employees attempting to report for the first shift, in the presence of Respondents' agents, Radames Acosta, Efrain Serrano, and Alcides Serrano, were detained and surrounded by a group consisting of more than 20 pickets on the road lead- ing to the Merck plant and they were prevented from en- tering Merck's premises. Efrain Serrano stated several times, over the loudspeakers, that he was not going to let anyone to go inside the plant . At the same time, a group of pickets, in the presence of Radames Acosta, threw sticks and other objects at one of the cars attempting to enter Merck's premises and, as a result , approximately nine vehi- cles were forced to turn away by strikers blocking their entrance to Merck's premises. 32. On November 26, after they had prevented Merck's first-shift employees from entering its plant , Respondents, through about 50 pickets, including Arturo Grant and Car- los Rodriguez, prevented the second and third shift of Merck's employees from entering the plant by similar mass blocking of the entrance road and by their threatening statements over the Union's loudspeakers that no one would be permitted to enter the plant. 33. By reason of Respondent's conduct set forth above, approximately 39 Merck employees were forced to stay in- side the Merck plant during the entire period that the pick- eting continued, and makeshift living accommodations had to be furnished and made available for these employees inside the Merck plant. 34. During the period that Merck employees were com- pelled by Respondents' activities to remain inside the Merck plant, wives were permitted by the pickets to enter to see their husbands only when escorted by one of the pickets. 35. On November 26, about 9 p.m., Victor Charron, per- sonnel manager for Merck , while attempting to enter the plant was stopped by a group of more than 25 pickets, including Efrain Serrano, Alcides Serrano, and Radames Acosta, who hit and kicked the car he was riding in, and said Merck employee was prevented from entering the plant until the police intervened. 36. On November 26, Respondents' agent Efrain Serra- no, speaking over the loudspeakers at the Merck plant, ad- dressed Victor Charron, Merck's personnel manager, say- ing, "I'll cut you in Barceloneta." 37. On November 27, Radames Acosta, secretary-trea- surer of the Union, stated over the loudspeakers that Cata- lytic was attempting to obtain an injunction, but that the unions were not going to obey such injunction, as they had refused to obey other injunctions in the past, and that the union was ready to go to jail. 38. On November 26, 27, and 28, announcements were made over Respondents' loudspeakers that the Merck em- ployees inside the Merck plant would not be permitted to leave and that bodily harm would be inflicted upon those employees who would not cooperate with the strike. 39. On November 26 and 28, a group of about 30 pick- ets at the entrance of Merck's' premises blocked the car driven by Martinez Robles , a maintenance mechanic for Merck, and prevented him from entering Merck's prem- ises. Martinez informed Efrain Serrano that he did not work for Catalytic, and asked why was he being stopped. Serrano replied that by detaining the employees of Merck he could help solve the problem that they had with Catalyt- ic. 40. On November 27. a group of Merck female secre- taries, while attempting to enter the plant as a group, were detained at the entrance to Merck 's premises by a group of about 20 to 25 pickets who surrounded their car and struck it repeatedly. 41. On November 27, Ted Crowder, area superintendent for Catalytic, was surrounded at the entrance of Merck's premises by a group of 25 to 30 pickets , including agents of the Respondents, who struck his car and refused to let him enter. 42. On November 27, Cristobal Solis , utility supervisor for Merck, attempted to enter Merck's premises ; two men stepped in front of his car, physically blocking his entrance to the plant. A group of 25 pickets surrounded his car and one of them told Solis that he could not go in . During this conversation, one of the pickets punched Solis in the jaw. 43. On November 27, Jose Cintron, safety engineer for Merck, accompanied by one Sarkis, another Merck em- ployee, attempted to enter Merck's premises with supplies and provisions for the Merck employees who were remain- ing inside the plant. A group of pickets, including agents of Respondents, physically blocked and stopped them at the entrance and prevented them from entering the premises. While the vehicle was stopped, the pickets, including agents of respondent, continuously struck the car. When one of the pickets attempted to open the rear door of the car and was prevented from doing so by Cintron, Rodri- guez, an agent of respondents, struck Cintron. Police inter- vention was required in order to permit the vehicle to enter the premises. 44. On November 27, Respondents' agent Alcides Serra- no and a group of pickets blocked the road inside Merck's premises, between the entrance from the highway and the plant, with two cars and prevented Merck's employees from entering the plant. 45. On November 28, Respondents' agent Efrain Serra- no, speaking over a loudspeaker, threatened to beat Pedro Reyes, production supervisor for Merck. 46. On November 27 and 28, Sam R. Ambrose , mechan- ical superintendent for Catalytic , was confronted by 25 to 30 pickets, including agents of Respondents, on Merck's premises; they surrounded his car and struck it; they also threatened him and his family with a beating if he went in. 47. On November 28, the pickets stated , over the Union's loudspeakers, that they were going to blow up the Merck plant with all the employees in it. 48. On November 28, Ted Crowder, area superintendent for Catalytic, again attempted to enter the Merck premises but was blocked by pickets until he was able to obtain police intervention. This was repeated on a daily basis for the duration of respondents ' activities. 49. On November 28, Pacheco Sancez, a Merck employ- UNION NACIONAL DE TRABAJADORES 425 ee, was stopped by a group of 20 to 25 pickets as he at- tempted to leave the plant and was told that he would not be allowed to reenter the plant. When Pacheco attempted to reenter the Merck plant later that same day, he was stopped at the entrance to the premises by a group of 30 to 40 pickets, including agents of Respondents, who refused to allow him to enter. The pickets surrounded his car and respondents' agent Rodriguez, with a group of six or seven other pickets, attempted to lift the front of the Volkswagen driven by Pacheco. It was not until the police intervened that Pacheco was able to enter the plant premises. 50. On November 28, as Pacheco Sanchez, a Merck em- ployee, was entering Merck's parking lot, Respondents' agent Efrain Serrano, shouted that he would get him at his home. The following day, Serrano told Pacheco that he was going to give him a beating. 51. On December 1, upon the petition of Raymond J. Compton, Regional Director of the National Labor Rela- tions Board, and after oral notice of the application to counsel for Respondent, the United States District Court for the District of Puerto Rico issued a temporary restrain- ing order, enjoining and restraining respondents from any acts or conduct that would induce or encourage any em- ployee of Merck, Hernandez, Chase, Industries, or any other person engaged in commerce, to engage in a strike or refusal in the course of his employment, to use, process, transport, handle, or work on any goods, materials, or commodities or to refuse to perform any service, or by any means threatening, coercing, or restraining Merck, Her- nandez, Chase, Industries, or any other person engaged in commerce, where an object thereof was ( 1) to force or re- quire Merck, or any other person, to cease doing business with Catalytic; or (2) to force or require Catalytic to recog- nize or bargain with respondents , unless or until respon- dents have been certified as the representative of such em- ployees under the provisions of Section 8 of the Act. The said temporary restraining order was thereafter duly served on agents of Respondents on December 2, 1973. 52. On December 3, a group of 25 to 30 pickets stopped Samuel Santiago, a Merck employee , as he entered Merck's premises from the public highway; one of them struck his car and pushed him. 53. On December 3, Samuel Santiago, a Merck employ- ee, attempted to enter the Merck premises by an access road ; as he drove on said road, two men threw rocks at his car. 54. On December 3, Manuel Laguna, a forklift operator for Merck, attempted to enter the plant by the access road but was stopped by four men, including an agent of re- spondents, who blocked the road. As Laguna turned his car around, these four men threw stones at him. 55. On December 4, Acosta, secretary-treasurer of the Union, and Efrain Serrano and Alcides Serrano, members of the committee , blocked the main entrance road leading to the plant with a car. 56. On December 4, Acosta, secretary-treasurer of the Union, threw a stone at the station wagon driven by Jack Treathaway, project superintendent for Catalytic, at the in- tersection of two public highways bordering Merck's prem- ises, as he was attempting to enter. 57. On December 5, nonstriking Catalytic employees formed a caravan of cars to enter the construction jobsite. On the public highway, about 1/4 of a mile from another public highway leading to the plant entrance, they were confronted by five cars carrying pickets, including agents of Respondents, who were armed with clubs and other weapons; Respondents' agents approached one of the cars that contained a number of Catalytic employees and began pounding on the car. Respondents' agent Alcides Serrano then hit Urbiztondo, general foreman for Catalytic; em- ployees of Catalytic left their cars and lined up on the other side of the road, creating a serious confrontation between the two groups, and violence was averted only by police intervention. 58. On December 5, about 9 a.m., Alcides Serrano threatened Ismael Rodriguez, a Catalytic employee, with a knife and demanded to know why he had gone to work that day; Efrain Serrano threatened to hit Ismael Rodri- guez with a hammer; and Julio Denis pushed Ismael Rod- riguez and started a fight with him. 59. Throughout the period of their activity, Respondents made threats, over the Union's loudspeakers, that they would harm Jorge Medina, Merck's security chief, and his family. 60. During the period set forth herein, the picketing by Respondents covered every possible entrance to the prop- erty owned by Merck and all the entrances to its plant. 61. The activities of Respondents, set forth in findings of fact numbered 12 through 50, and 52 through 60, occur- ring in connection with the operations of Merck, Catalytic, and other employers, as set forth in findings of fact num- bered 1, 2, 3, and 8, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the sev- eral States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. THE REMEDY The General Counsel has submitted no suggestions con- cerning the remedy he considers appropriate in these cases. The Charging Parties, however, have made specific re- quests. They urge that the order to be recommended herein provide: (a) Reimbursement to the National Labor Relations Board and the Charging Parties for their expenses in the preparation and presentation of the allegations of unfair labor practices in these cases. (b) A broad order prohibiting repetition by the union of the conduct found violative herein, directed against any employer or person in Puerto Rico. (c) Execution by respondents of a sufficient number of copies of the notice to be prescribed herein for mailing to all employees of the Charging Parties in Puerto Rico. (d) A notice to members in understandable language which will clearly remedy the rights violated by Respon- dents. (e) Reimbursement to the employees of the charging parties who were prevented from working during the strike by the conduct of Respondents found violative of the Act. Notwithstanding Respondents' failure to participate in this case after the rejection of the proposed settlement and despite the absence of objections to the Charging Parties' 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD remedial proposals, the order to be recommended herein will be formulated with due regard for the established prin- ciples governing such orders. (a) Reimbursement to the Board and Charging Parties for expenses in prosecuting this case It may be assumed that the Board has authority to assess against a Respondent the costs of litigation in an appropri- ate case, as was done in Tiidee Products, Inc., 194 NLRB 1234 (1972)--albeit pursuant to direction by the court of appeals-and apparently approved in principle by the Su- preme Court in N.L.R.B. v. Food Store Employees Union, Local 347 etc. [Heck's Inc.], 94 S.Ct. 2074 (May 20, 1974). The basis of the award of counsel fees and expenses to the Board and the union in Tiidee, however, was respondent's interposition of frivolous defenses and tactics of delay in the litigation itself, as contrasted with its activi- ties giving rise to the litigation.4 In two recent cases the Board considered applications for similar awards of litiga- tion expenses and, in both cases, denied them. Orion Corporation, 210 NLRB 633 (1974), involved a re- fusal to bargain with a certified union; the company's posi- tion was that its withdrawal of recognition was based upon a belief that "the union no longer represented a majority of employees." This defense was litigated and rejected, by both the Administrative Law Judge and the Board, as hav- ing "no reasonable basis." The recommendation of the Ad- ministrative Law Judge that the charging union be reim- bursed its expenses, including counsel fees and its expenses in attending bargaining sessions, however, was reversed, the Board stating that: ... Respondent's conduct, although serious, is not so aggravated and pervasive, or its defense so frivolous, as to warrant this special additional remedy. Union de Tronquistas de Puerto Rico, Local 901, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (F F. Instrument Corporation), 210 NLRB 1040 (1974), like the case at bar, involved threats and violence in violation of Section 8(b)(1)(A) and activi- ties, violent and otherwise, in violation of Section 8(b)(4)(i) and (ii)(B). To allegations of violation of both sections, respondents interposed the defense that F. F. Instrument was an "ally" of the company with which it had its primary dispute. With respect to the 8(b)(1)(A) violation, the de- fense was stricken on motion and, in support of that de- fense to the 8(b)(4) violation, respondent introduced no evidence at all. The Administrative Law Judge declined to recommend that the charging party be reimbursed for its expenses and the Board affirmed, stating that: We have only awarded such cost reimbursement reme- dy in limited circumstances where frivolous defenses were raised by a litigious Respondent strictly to delay or avoid its obligations under the Act. See, e.g., Tiidee Products, Inc., 194 NLRB 1234. . . . we are not will- ing to find that Respondent's contesting this matter 4 In cases like Tidee, involving refusals to bargain, there may be an over- lapping of these two types of activity. through to a decision of an Administrative Law Judge should be construed as wholly frivolous. It warned, however, that "any further litigation in this case would constitute an abuse of the processes of the Board and the courts." Respondents' answer in this case consisted solely of a general denial; they participated in the first day of trial and in the hearing of the application for approval of the pro- posed settlement. After the Board affirmed my ruling re- jecting the proposed settlement, Respondents did not par- ticipate further in the hearing of the case and they have not interposed objections or opposition to the charging parties' proposed findings and order. Accordingly, it cannot be said that Respondents have in any way impeded or abused the Board's processes 5 and I shall not recommend that they be required to reimburse the Board or the charging parties for any of their expenses herein. (b) The scope of the order to be recommended Although the Charging Parties allege that the union has been guilty of repeated and widespread violations of the Act similar to those found herein, thereby showing a "pro- clivity" to engage in such conduct, there is only one prior adjudication of such violation. In Union Nacional de Traba- jadores and its agent Radames Acosta-Cepeda (Surgical Ap- pliances Mfg. Inc.), 203 NLRB 106 (1973), the Board, on Respondents' default in answering, rendered its decision finding that: ... on or about November 9, 1972, at or near the picket line described above, Respondent Acosta-Cepe- da threw a stone at two employees who had crossed the picket line and reported to work; on or about No- vember 15, 1972, at or near the driveway located at the side of the Company's plant, Respondents through their agent Amada Torres, a picketing employee, in- flicted damage to the property of a company official in the presence of employees; on or about November 15, 1972, at or near the loading platform entrance to the Company's plant, Respondents by their picketing employees and other unknown agents, led by Respon- dent Acosta-Cepeda, surrounded the car of a compa- ny official driving nonstriking employees to work and blocked and impeded the access of said employees to the Company's plant; on or about November 15, 1972, at or near the loading platform entrance to the Company's plant, Respondent Acosta-Cepeda assault- ed an employee passenger of the car described above, poured hot coffee over a company supervisor, and at- tacked the wife of the Company's president, all in the presence of company employees; and on or about De- cember 4, 1972, at or near the entrance to the Company's premises, Respondent Acosta-Cepeda as- saulted the Company's president. By the aforesaid acts and conduct, the Board found that Respondents had restrained and coerced employees in the exercise of the rights guaranteed them under Section 7 of the Act and had thereby engaged in unfair labor practices 5 See Condon Transport, Inc, 211 NLRB 297 (1974). UNION NACIONAL DE TRABAJADORES 427 within the meaning of Section 8(b)(1)(A) of the Act. In addition to this Board order, the Charging Parties have directed my attention to two Board orders against the Respondent Union entered on settlement stipulations. No reliance may be placed upon these consent orders: not only has the Board expressly declined, in determining the scope of an order to be issued, to consider such consent orders,6 but examination of the stipulations upon which those con- sent orders were entered discloses that in each case the parties expressly provided that the execution there of should not be deemed an admission of violation of the Act by the Union. The remaining material which, the Charging Parties con- tend, shows the "proclivity" of Respondent Union to en- gage in similar conduct, and which justifies a broad order herein, consists of allegations of such conduct in com- plaints and other proceedings against it. These, of course, are mere statements of parties; they provide no probative evidence of the proclivity in question, and no weight can be given to them. Similarly, no weight can be given to the issuance of the temporary restraining order in this case since it was, at most, a finding that there was "reasonable cause to believe" that the Act was being violated. The nature and extent of the restraint and coercion exerted by Respondents through the violence and threats of violence shown in this case and in the Surgical Appli- ances case, however, show that they have adopted these practices as part of their normal method of carrying on their activities. Although it must be kept in mind, in fashioning remedial orders designed to prohibit repetition of the unfair labor practices found, that the courts have repeatedly stated their reluctance to enforce broad orders that would, in effect, substitute prosecutions for contempt of their orders for the Board proceedings that would normally be brought against subsequent violations of the Act,7 their reluctance has been largely based upon their concern that such future conduct, although violative of the same section of the Act, might differ considerably in substance from the conduct against which the order was directed. In this case, however, the type of future conduct that would be prohibited by a broad order against coercive conduct will be precisely the same conduct as that found to have been extensively committed by Respondents in this case and in the Surgical Appliances case; namely, violence and threats of violence. A broad order in those terms would , therefore, meet the test laid down by the Supreme Court in N.L.R.B. v. Express Pub- lishing Company, 312 U.S. 426, 436-437 (1941), that: The breadth of the order, like the injunction of a court, must depend on the circumstances of each case, the purpose being to prevent violations, the threat of which in the future is indicated because of their simi- larity or relation to those unlawful acts which the 6 Brotherhood of Teamsters & Auto Truck Drivers, Local No. 70, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (C & T Trucking Co.), 191 NLRB 11 (1971); see also Communica- tions Workers of America, AFL-CIO and Local 4372 [ Ohio Consolidated Telephone Co.] v. N.L.R.B., 362 U.S. 479, 481 (1960). 7 San Francisco Local Joint Executive Board of Culinary Workers, et al, v N L R. B., 501 F.2d 794 (C.A.D.C., 1974), and cases cited therein. Board has found to have been committed by the em- ployer in the past. . . . To justify an order restraining other violations it must appear that they bear some resemblance to that which the employer has commit- ted or that danger of their commission in the future is to be anticipated from the course of his conduct in the past. Moreover, the nature of these violations is so inimical to the conduct of labor relations sought to be regulated by the Act as to justify use of the strongest available measures to restrain them. In Milk Wagon Drivers Union, etc. v. Mea- dowmoor Dairies, Inc., 312 U.S. 287 (1941), which I cited in rejecting the proposed settlement, the Supreme Court drew a line between efforts to persuade through the exercise of the constitutionally guaranteed rights of free speech and picketing and those to compel through violence and the threats thereof. So would I here draw a line between the specificity of an order designed to prevent recurrence of other unfair labor practices and the breadth of an order to restrain future violence. Accordingly, the recommended Order to be entered herein will restrain Respondents from acts of violence and threats of violence, by words and actions such as striking persons or their cars, or blocking their movement, against employees of any employer in Puerto Rico.8 The situation with respect to the provisions of the order relating to violations of Section 8(b)(4)(i) and (ii)(B) is quite different. In the first place, there is no history of prior violations of this section by Respondents and it has not been established, on this record, that the use of unlawful secondary activity has been adopted by them as an, integral part of their habitual tactics in labor relations. Second, the acts and conduct that, in the context of this case, are found to constitute unfair labor practices might not, in some fu- ture context, constitute such violation. Accordingly, al- though Respondents will be enjoined from further acts and conduct similar to that found to have been committed herein, the order will be limited to activities -directed against Merck, its employees, and employees of employers dealing with Merck. There is no evidence that Respondents committed unfair labor practices, as defined in Section 8(b)(4), against employers other than Merck, doing busi- ness with Catalytic, or their employees. With respect to Merck and employers doing business with it, however, the order will cover Puerto Rico. (c) The mailing of the notice The Charging Parties request that the order herein con- tain a provision requiring Respondents to sign an appropri- ate notice, in English and in Spanish, and to provide both Catalytic and Merck with a sufficient number of copies thereof. It is not clear, from the Charging Parties' request, whether they are willing to mail the notices themselves or whether they seek to have Respondents do so. The order to be recommended herein will provide that Respondents per- 8 Union de Tronquistas de Puerto Rico, Local 901, affihada a la Internation- al Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica (Hotel La Concha), 193 NLRB 591 (1971) 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD form the task and stand the expense of such mailing .9 In view of the widespread nature of Respondents' restrain and coercion of employees of Merck, Catalytic, Chase, Hernandez, and Industries, only direct communication from Respondents to all the employees affected can serve as an adequate remedy for the unlawful conduct of the Respondents. (d) The language of the notice The Charging Parties request that the wording of the notice be such as to be easily understood by the employees who were subject to Respondents' unlawful conduct. This request is supported by Board practice and court approval over the past several years and it will be granted. The no- tice to be provided herein will be the one suggested by the Charging Parties, amended only as required by the scope of the order to be recommended. (e) Reimbursement of lost wages to employees prevented from working by Respondents' unfair labor practices As stated above with respect to the award of litigation expenses, it may be assumed that the Board has the power to direct reimbursement of lost wages to employees pre- vented from working through unlawful restraint and coer- cion by a labor organization. The Board, however, has determined as a matter of poli- cy that it will not grant such reimbursement. In Union de Tronquistas de Puerto Rico, Local 901, affiliada a la Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (Lock Joint Pipe & Co. of Puerto Rico), 202 NLRB 399 (1973), the conduct found to have been committed by the Union was every bit as violent and aggravated as that committed by Respondents in this case. The Administrative Law Judge in that case recommended a "make-whole" remedy for the employees kept from working by the Union's violence and threats thereof. The Board declined to direct that remedy and this expression of Board policy is binding on me. 10 Contrary to the argument of the Charging Parties herein, I do not find, in the Board's statement in Union de Tronquistas de Puerto Rico, Local 901, etc. (F. F. Instrument Corporation) 11 that it was "un- necessary to pass on this question since there is no evi- dence that any employee lost worktime or wages," any- thing indicating an imminent change by the Board in the position it has taken on this subject. The Charging Parties, if so advised, may address their argument on this subject to the Board. Upon the foregoing findings of fact, I reach the follow- ing: 9 Union de Tronquistas (Hotel La Concha), supra 10 Insurance Agents' International Union (Prudential Insurance Company of America), 119 NLRB 768 (1957). 1121ON LRB 1040 (1974). CONCLUSIONS OF LAW 1. Respondent, Union Nacional de Trabajadores and Comite Organizador Obreros en Huelga de Catalytic, are labor organizations within the meaning of Section 2(5) of the Act. 2. Each Respondent herein acted as the agent of the other within the meaning of Sections 2(13) and 8(b) of the Act. 3. Catalytic Industrial Maintenance Co., Inc.; Merck Sharp & Dohme Quimicas de Puerto Rico, Inc.; Juan Her- nandez, Inc.; Chase Overseas, Inc.; and Industries Freight are employers within the meaning of Section 2(2) of the Act and are engaged in commerce or in an industry affect- ing commerce within the meaning of Section 2(6) and (7) of the Act. 4. By the acts set forth in findings of fact 12 through 28; 30 through 40; 42 through 45; 47; 49 through 55; 59; and 60, Respondents and each of them induced and encour- aged employees of Merck, Hernandez, Chase, Industries Freight, and other persons engaged in commerce and in- dustries affecting commerce to engage in a strike or refusal to perform services for their employers, with an object of forcing or requiring (a) such employers to cease doing busi- ness with Catalytic and with each other; and (b) forcing or requiring Catalytic to recognize or bargain with Respon- dents, or either of them, as the representative of its employ- ees although neither Respondent had been certified as the representative of such employees under the provisions of Section 9 of the Act, and Respondents thereby engaged in unfair labor practices within the meaning of Section 8(b)(4)(i)(B) of the Act. 5. By the acts set forth in findings of fact 12 through 28; 30 through 40; 42 through 45; 47; 49 through 55; 59; and 60, Respondents and each of them threatened, restrained, and coerced Merck, Hernandez, Chase, Industries Freight, and other employers and persons engaged in commerce or in an industry affecting commerce with an object of (a) forcing or requiring Merck and other persons, as well as other employers, to cease doing business with Catalytic and with each other; and (b) forcing or requiring Catalytic to recognize or bargain with the Respondents or either of them as the representative of its employees although nei- ther Respondent had been certified as the representative of such employees under the provisions of Section 9 of the Act, and Respondents thereby engaged in unfair labor practices within the meaning of Section 8(b)(4)(ii)(B) of the Act. 6. By the acts set forth in findings of fact numbered 13 through 50, and 52 through 59, Respondents have re- strained and coerced the employees of Merck, Catalytic, Hernandez, Chase, Industries Freight, and other employers in their exercise of rights guaranteed in Section 7 of the Act and thereby engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. [Recommended Order omitted from publication.]