Union De Operadores Y Canteros

UNION DE OPERADORES Y CANTEROS Union de Operadores y Canteros de la Industria del Cemento de Ponce and Puerto Rican Cement Company, Inc. Cases 24-CB-930, 24-CB-931, and 24-CB-932 August 8, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND WALTHER On June 14, 1976, Administrative Law Judge Max Rosenberg issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Union de Operadores y Canteros de la Industria del Cemento de Ponce, its officers, agents, and representatives, shall take the action set forth in said recommended Order. DECISION MAx ROSENBERG, Administrative Law Judge: With all parties represented, this proceeding was heard before me between August 5 and 9, 1975, in Hato Rey, Puerto Rico, on an amended complaint filed by the General Counsel of the National Labor Relations Board and an answer filed in opposition thereto by Union de Operadores y Canteros de la Industria del Cemento De Ponce, herein called Respon- dent or the Union.' At issue is whether Respondent violated Section 8(b)(I)(A) of the National Labor Rela- tions Act, as amended, by certain conduct to be detailed hereinafter. Briefs have been received from the Charging Party and Respondent and have been duly considered. Upon the entire record made in this proceeding, including my observation of the demeanor of the witnesses as they testified on the stand, I hereby make the following: I The complaint, which issued on June 11, 1975, is based upon charges filed on April 15, 1975, and served on April 16. 1975. 2 Unless otherwise indicated, all dates herein fall in 1975. :l The Union's president, Efrain Fernandez, testified that he has solicited 231 NLRB No. 35 FINDINGS OF FACT AND CONCLUSIONS I. THE BUSINESS OF THE EMPLOYER Puerto Rican Cement Company, Inc., herein called the Employer, is a corporation duly organized under the laws of the Commonwealth of Puerto Rico. During the times material herein, the Employer has maintained an office and place of business in Hato Rey, City of San Juan, Commomwealth of Puerto Rico, as well as two plants located in Catano and Ponce, Commonwealth of Puerto Rico, where it is engaged in the manufacture, sale, and distribution of cement and related products. During the past calendar year, the Employer purchased and caused to be transported and delivered to its plants goods and materials valued in excess of $50,000, which items were transported and delivered to its plants in interstate commerce directly from States of the United States other than the Commonwealth of Puerto Rico in which they are located. In the same period, the Employer manufactured, sold, and distributed from its plants, products valued in excess of $50,000, of which products valued in excess of $50,000 were shipped from said plants in interstate commerce directly to States of the United States other than the Commonwealth of Puerto Rico in which they are located. The complaint alleges, the answer admits, and I find that the Employer is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED I find that Respondent is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The amended complaint alleges that, commencing on January 31, 1975,2 Respondent, by and through its agents, violated Section 8(b)(IXA) of the Statute by a variety of acts of violence and intimidation. Respondent denies the commission of any labor practices proscribed by the Act. As a preface to the consideration of the evidence and the law which controls the outcome of this litigation, I would note that my role in this proceeding is solely and simply to determine whether any or all acts and conduct of the Union, as alleged in the General Counsel's complaint, constitute violations of the National Labor Relations Act, as amended. As far as I am concerned, it matters not to me that the president of the Employer, a former Governor of the Island, espouses a political theme at variance with that of the Puerto Rican Socialist Party, an insular political organization which has supported the Union's cause in the labor dispute which has triggered this litigation.3 The political aspects of this case should be fought in another arena, and not before me. With this observation, I turn to a consideration of the merits of the Government's case. It is undisputed and I find that the Employer and Respondent were parties to a collective-bargaining agree- the support of vanous organizations dunng the strike against the Employer, the details of which will be chronicled hereinafter, and that Man Bras, president of this political party, came to his aid. 171 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment covering 474 production and maintenance employees at the Employer's Ponce plant which was effective from January 1, 1972, until December 31, 1974. This agreement contained a clause which provided that the compact was to remain in force and effect after December 31, 1974, while a new contract was being negotiated, unless and until either party notified the other in writing of its intention to terminate. At 2 p.m. on January 31, Efrain Fernandez, Respondent's president, appeared at the facility's personnel office and delivered a letter which stated that the extended contract had been terminated on that day by the Union. At 4 p.m. on January 31, picketing began at the entrance to the Ponce plant, and the incidents giving rise to this proceeding commenced to transpire. A. Blockage of Plant Entrances and Exits The complaint charges that, on January 31, and April 3, 4, and 7, Respondent, through its agents Gilberto Quin- ones, William Febles, Edwin Torres, Anastacio Burgos, and other striking employees under its direction and control, and by other persons acting on its behalf, attempted to block and did block entrances to and exits from the Ponce plant, and attempted to prevent and did prevent employees of the Employer as well as employees of suppliers, in the presence of employees, from entering and leaving said plant and premises, with an object to induce these employees not to cross the picket line which Respondent had established at the gates of the Ponce installation on January 31. Juan Maldonado, the Employer's personnel manager, testified that, after Respondent's President Efrain Fernan- dez visited the personnel office at 2 p.m. on January 31 to terminate the existing collective-bargaining agreement between the parties, he observed Fernandez at 4 p.m. on the picket line in the company of approximately 300 striking employees. Using a megaphone, the union presi- dent instructed the strikers "that they were not to enter to work and that no vehicle was to enter the plant. And above all, the trucks that were carting cement to the boats or the ships." Fernandez also told the strikers that "not a sack of cement would come out." From 7 p.m. to 10 p.m., Maldonado stationed himself at the main plant gate, during which period he watched certain company vehicles driven by supervisors attempt to depart the plant premises. The pickets blocked the egress, whereupon the local police intervened to allow the trucks to leave. During this incident, Maldonado noticed that Ricardo Villoch, admit- tedly an agent of Respondent and one of its delegates at the plant, was among the strikers who blocked the plant entrance. Santiago Alvarez, a quality control engineer, testified that, at 8:30 p.m. on January 31, he attempted to drive his station wagon through the plant gate with two employee riders but was thwarted from doing so by massed pickets. At this juncture, a beer can was thrown at his vehicle which struck a glass area on the right side. Jose F. Figueroa, an inventory control engineer, testified without contradiction and I find that, at 10 p.m. on January 31, he, too, was stopped at the gate by pickets. Gilberto Quinones, a member of the Union's board of directors and an admitted agent of Respondent, approached the driver's side of Figueroa's automobile and, pounding his fist on the door, exclaimed that "You will go out now to your home but you will not come in in the morning." As the strikers angrily shouted "maceta" which has a translation in Spanish as "a club" and which Figueroa construed as a threat to his physical well being, the police appeared and cleared the way for his exit. Figueroa turned into an adjacent road, at which point he heard an object strike his car which left a 1/2-inch dent in a fender. Maldonado further testified that, early in the morning on April 3, he and other supervisors and employees drove to work. As they approached the plant entrance in an auto caravan of 18 vehicles, the pickets massed in front of the gate to prevent the supervisors and nonstriking employees from entering, and threw rocks at the vehicles which shattered windshields and panes. Production Supervisor Juan Angel Valle testified that he drove two nonstriking employees to work on the same morning in the caravan. As he proceeded to the gate, the window pane on the right front door was shattered. A group of strikers were assembled on the right side of his car. When Valle left the plant in the afternoon, his automobile was again hit with an unidentified object and, again, this occurred in front of the strikers. Maldonado testified that, at 2:50 a.m. on April 7, four or five cement trucks operated by employees of independent contractors approached the plant gate and attempted to enter. In the presence of union officials, the trucks were halted by drums placed on the road by the strikers, who thereupon threw rocks, chairs, and other objects at the gates. Efrain Fernandez, the Union's president, testified that, at 1:30 p.m. on January 31, he called a meeting of his board of directors to announce that a strike had been pro- grammed to commence at 4 p.m. that afternoon. When the strike began, Fernandez mounted an automobile roof and addressed 400 strikers over a megaphone. While Fernandez testimonially asserted that the pickets did not prevent vehicles from either entering or leaving the plant on that date, he failed to controvert Maldonado's testimony that, when he spoke to the strikers over the megaphone, he instructed them that "they were not to enter to work and that no vehicle was to enter the plant" and that "not a sack of cement would come out." Although Fernandez admitted that he was on the picket line at 7 a.m. on April 3, he denied that he was present at 3 a.m. when the supervisor employee motorcade was bombarded by missiles which broke windshields and windows. However, Fernandez confessed that either a union official or a union delegate was present and in charge of the picket line at all times and he failed to deny his presence at the picket line on April 7 when the trucks of suppliers were hindered from entering the plant gates by the placement of metallic drums in the driveway or by the rocks and chairs which were thrown at the vehicles. In his testimony, the union president stated that he viewed anyone who crossed the picket line as "traitors" to the Union's cause. William Febles, a member of Respondent's board of directors, testified that he was present on the picket line on January 31, and April 3 and 7. He claimed that at no time did he observe any mass picketing, rock throwing, or other misconduct on the part of the strikers on those dates. 172 UNION DE OPERADORES Y CANTEROS However, Febles admitted that he was in possession of several metal drums at the picket line on April 7. Neither Fernandez, Febles, nor the other witnesses which Respondent summoned to the stand to testify regarding these episodes impressed me with their demeanor or candor. I therefore credit the testimony of Maldonado, Alvarez, Figueroa, and Valle, and find that, on January 31, President Fernandez addressed the assembled strikers outside the plant gates at 4 p.m. and urged them to prevent any vehicular movement either into or out of the facility- "not [to allow] a sack of cement [to] come out." In consequence of this instruction, and in the presence of Union Delegate Ricardo Villoch, the strikers blocked egress from the plant until they were ordered by police to remove themselves to a nearby entrance road. I further find that, on the evening of January 31, and in the presence of either Villoch or Union Board of Directors' member Gilberto Quinones, or both, strikers prevented Engineer Alvarez from leaving the installation that night and threw a beer can at his automobile which struck the glass on the right side of the vehicle. A short time later, as engineer Figueroa attempted to leave the plant, Union Agent Quinones approached the former's car and, pounding his fist on the driver's door, shouted "You will go out now to your home but you will not come in in the morning," while the surrounding strikers yelled "maceta" which Figueroa interpreted as a threat to club him physically. I find that, on the morning of April 3, the strikers, in the presence and under the direction and control of the Union's agents, pelted the automobiles of supervisors and nonstriking employees with rocks and other objects as they attempted to enter the plant which shattered windshields and other panes. I also find that, on April 7, the strikers, under the aegis of union officials, sought to prevent the entry of trucks of the Employer's suppliers into the plant by placing metal drums on the driveway and stoning and otherwise bombarding the vehicles. Accordingly, by the foregoing conduct, I find and conclude that Respondent violated Section 8(b)(l)(A) of the Act. B. Intimidation of Nonstrikers The complaint alleges that during the month of February Respondent through striking employees under its direction and control and by other persons acting on its behalf, picketed the Employer's premises with shovels, sticks, rakes, and other equipment susceptible of being used as a weapon, with an object of inducing the nonstriking employees not to cross the picket lines. The evidence is quite clear that, during the times in question, several pickets paraded on a company road near the plant gates carrying shovels, heavy street brooms, and large pieces of timber that best could be characterized as clubs. In his testimony, Union President Fernandez conceded that, during the month of February, the pickets shouldered these items as they walked the line. When queried as to the reason for the strikers' bearing these tools, which hardly qualify as traditional props for picket line activities, Fernandez' response was too ludicrous to warrant credible acceptance. Fernandez related that, a few weeks after the strike started, "Different union members asked the compa- ny that they let us have garbage cans and shovels and brooms to sweep the area, and that was kept on the picket line so that we could maintain that area clean. Then, when we called the members out to picket, each one would pick up what he had to carry, be it a sign, a shovel, a broom, and carry it." Fernandez also admitted that, during the period in which these items were carried by the strikers, employees and supervisors entered and left the plant. Fernandez further testified in explanation of the presence of the tools, that it was customary for the Employer to wash and clean the access road, because suppliers' trucks would spill lime, rocks, dust, and other garbage on the street. However, the legitimacy of the strikers' mission to cleanse the roadway is belied by Fernandez' own confes- sion that, inasmuch as the strike had closed the plant to trucks from January 31 until it reopened in April, no trucks had in fact travelled the route during the month of February, and hence it would have been unnecessary to clean the thoroughfare. Moreover, I deem his testimony incredible that, while the Union and the Employer were locked in dire economic battle, the latter would have handed over these potential weapons to its adversary for the duration of the strike. In short, I find that the strikers, under the direction and control of the Union, picketed the Employer's plants with shovels, heavy brooms, and clubs, not with a purpose of sanitation in mind, but with a design to intimidate the nonstriking employees and supervisors from crossing the established picket line. By so doing, I conclude that Respondent ran afoul of Section 8(b)(1)(A) of the Statute. C. Home Visitation Threats The complaint alleges that, in the course of home visits by members of Respondent's home visits' committee on February 1, 2, and 3, and April 5, and on various other dates during February, March, and April, Respondent threatened the employees thus visited with loss of benefits and/or with harm to the members of their families, with an object of inducing said employees to support and assist Respondent and/or not to cross the picket line at the Ponce plant. Eleuterio Acosta, who had been employed as a mechanic at the Ponce plant prior to the work stoppage, left his job when the strike commenced at 4 p.m. on January 31. He testified without contradiction and I find that, between 9 a.m. and 10 a.m. on the morning of February 1, while he and his family were performing gardening chores on his lawn, an automobile containing five men, including Union Delegate Pedro Torres and Home Visits' Committeeman Damaso Droz, drove up to his driveway. When the visitors emerged from the car, they sat down and asked Acosta why he had not reported for duty on the picket line. Acosta replied that he had paid a picket to substitute for him because he intended to travel to Mayaquez that day to obtain his Social Security forms and that he "was not a monkey." The Union's spokesman then retorted that any benefits which the Union might win from the Employer as a result of the strike would not be afforded to Acosta because of his failure to join the picket line. In his testimony, Droz acknowledged that he, Pedro Torres, and three other strikers visited Acosta's home on 173 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the morning of February I because they believed that he was ill. When Droz and his companions learned that Acosta was about to embark upon a trip to Mayaquez, the men drove away. However, neither Droz nor Torres denied Acosta's testimony that they had threatened to withhold the fruits of their strike action from Acosta because he had defected from the ranks of the picketers. On the basis of Acosta's undenied testimony, I conclude that Respondent violated Section 8(b)(1)(A) of the Act by threats of economic deprivation directed to Acosta on February I due to his absence from the picket line. Rafael Velez, a mechanic's helper at the Employer's plant in Ponce, joined the strike on the afternoon of January 31 and performed picket duties for 2 weeks thereafter. At 3 p.m. on April 5, Velez received a home visit from Jose Ledey, Jose Rodriquez, Alcides Rosario, and Jorge Rosado, all members of Respondent's home visits' committee. The visitors announced that the Employer had managed to break the Union's strike, and inquired as to why Velez had shirked his picket duties. Velez replied that he remained away from the picket line because he did not want "trouble." In the presence of Velez' wife and children, Rosario exclaimed that "as long as [Velez] didn't go to the picket line there would be no problems, that nothing could happen to me if I passed through the gates of Puerto Rican Cement because I was well insured and they thought well of me, but somebody who had nothing to do with them could do something to my family." The visit ended with Velez informing the committee that he had no intention of crossing the picket line. Alcides Rosario admitted on the stand that he had visited the home of Velez with other home visits' commit- teemen in order to determine why Velez had failed to participate in picket line activities. Velez replied that he was working for a relative, to which Rosario remarked that "we were glad that he was able to do something to help himself along economically." Velez promised that he would try to visit the picket line. At this juncture, Velez' wife broke in and commented that the reason for her husband's absence from the picketing area was due to his timidity. Despite the fact that Velez was gainfully employed, Rosario gave the curious testimony that he had offered to certify Velez' eligibility to receive food stamps. When asked whether he had given Velez the friendly advice that Velez' family would be harmed if Velez did not join the picket line, Rosario responded, "No, I did not think it necessary." 4 Rosario did not convince me that he possessed the requisite amount of candor to warrant accrediting his testimony and I do not. I therefore find, based upon Velez' credited utterances, that, on the afternoon of April 5, he received a house call from four members of Respondent's home visits' committee and was told that his family would be harmed if he continued to abandon Respondent's strike. I conclude that, by this conduct, Respondent violated Section 8(b)(1)(A) of the Act. I As indicated elsewhere in this Decision, Velez' home was firebombed on Ihe evening of April 26 while he swas at work and his lfamil) was asleep. D. Physical Assault Upon Nonstriking Employee Conrado Colon The complaint alleges that, on April 28, nonstriker Conrado Colon was physically assaulted and injured on a road in Ponce by Ramon Martinez, a member of Respondent's board of directors. Colon testified that, on the morning of April 28, a plant security guard escorted him to his father-in-law's home in search of Colon's wife. Not finding her there, Colon proceeded on foot down the highway where he met Director Martinez who was sitting in his car. Martinez inquired whether Colon was working, and the latter falsely replied in the negative. Colon decided to retreat to his father-in-law's house, at which point Martinez got out of his car and followed him. When Colon reached a clump of bushes, he was confronted by Martinez. Calling Colon, who was 5 feet tall and weighed 165 pounds, a "strike- breaker" and "cuckold," Martinez, who towered over Colon and weighed 200 pounds, proceeded to administer a beating to Colon because the latter had crossed the picket line. The foregoing testimony of Conrado Colon is uncontroverted and I find the facts as he testimonially reported them. Accordingly, I conclude that Respondent violated Section 8(b)(1)(A) of the Act by Martinez' physical assault upon Conrado Colon on April 28. E. Threat of Bodily Injury to Nonstriker Jose Antonio Colon The General Counsel asserts that, on May 5, Union President Efrain Fernandez and Delegate William Febles threatened Jose Antonio Colon with physical harm in order to induce him not to cross the picket line at the Employer's Ponce plant. Jose Colon testified that, at 9 p.m. on the evening of May 5, he was walking down a street in Ponce on his way to his father's home when he passed a van in which Efrain Fernandez and William Febles were seated. After greeting the two union officials, Colon continued to walk down the street. The officials then drove the van to the end of the block where they waited for Colon to arrive. As he approached the vehicle, Febles remarked that Fernandez wished to speak to him. The union president spoke up and inquired why Colon had failed to respect the picket line. Colon answered that he was in dire financial straits, that his wife was pregnant and needed maternity clothes and hospitalization, that his mother was ill, and that he was short of the vital necessities of life. Febles broke in and stated that both he and Fernandez knew that Colon was working at the plant, and the latter admitted this happen- stance. At this juncture, and in Colon's words, Fernandez "got up and with a very great expression upon his face he told me, the only thing I can tell you as a fellow employee, the only thing I can tell you is that the next time that we meet you'd better be armed because I am going to shoot at you. And he repeated it to me three times." Febles retorted that "if he [Febles] lost the house which I believe he had invested $8,000 and he lost his wagon, that he was going to 174 UNION DE OPERADORES Y CANTEROS take it out on each and every one of the employees that was inside to get even." Efrain Fernandez recounted that, on the evening in question, he attended a strike meeting with leaders of other labor organizations which lasted from 7:30 p.m. to 11 p.m., and therefore denied that he had in any way threatened Jose Colon that night.5 He did admit, however, that Febles was not at this assembly and did not account for the delegate's whereabouts. William Febles testified that, on the night in question, he served as a picket captain from 6 p.m. until 6 a.m. the following morning, and denied that he had threatened Colon that night. As heretofore indicated, neither Fernandez nor Febles impressed me as trustworthy witnesses, and I do not credit their testimony where it collides with that of Jose Colon. I therefore find that, on the evening of May 5, Fernandez and Febles threatened Colon with physical violence for refusing to support the Union in its strike against the Employer. I conclude that, by the foregoing conduct, Respondent violated Section 8(bX)()(A) of the Act. F. Physical Assault Upon Nonstriking Employee Mario Santiago The General Counsel contends that, on May 15, Respondent, by its agents Ricardo Villoch, Carlos Arroyo, and others, physically assaulted and inflicted bodily injury upon a nonstriking employee near the Ponce plant with an object of inducing said employee not to cross the picket line at that facility. Mario Santiago testified that, on May 15, he left the plant in the company of Supervisors Eriberto Jiminez and Jerry Garcia and visited a local restaurant for lunch. About 20 minutes after they arrived, nine strikers, including Union Delegate Ricardo Villoch, entered the premises. Upon spying Santiago and the supervisors, striker Carlos Arroyo commented to his colleagues "what a wretched group of people we have here," an obvious reference to the nonstrikers. Thereupon, the strikers proceeded to call Santiago a "wretch," "poor devil," "cuckold," and "strike- breaker." Santiago paid his bill and left the restaurant. Villoch and his friends followed Santiago down the highway and surrounded him. While one of the strikers grabbed Santiago and put an arm-lock around his neck, another slugged him in the eye and hand causing a large welt to appear under the eye and a laceration on the hand. Santiago quickly jumped into the supervisors' car and returned to the plant. Striker Carlos Arroyo and Union Delegate Ricardo Villoch steadfastly maintained on the stand that it was Santiago who was the aggressor in the episode which occurred at the restaurant on May 15. According to them, they and about eight fellow strikers entered the eatery that noon to buy some drinks, and Villoch noticed Santiago's presence. Villoch journeyed over to Santiago's table and questioned the latter's refusal to join in common cause with the strikers. Villoch testified that he observed one of the supervisors slip a knife into Santiago's hand, whereupon he I Fernandez acknowledged that he knew Jose Colon because he had observed the latter on the picket line before Colon abandoned the strike. h While no apparent allegation appears in the complaint regarding the issue. the General Counsel adduced testimony from Julio Leon, a sounded the alarm and the strikers left the restaurant. Santiago followed after them with knife in hand, and cut the finger of one of the men who sought to take the weapon away from him. The strikers returned to the plant where they filed assault charges with the police against their alleged assailant. A few days later, the case was heard in court. Despite the fact that Arroyo and Villoch testimonial- ly claimed before me that Santiago had attacked one of their number with a knife, and failed to mention any injuries sustained by Santiago during the scuffle, Villoch reported on the stand that "when we went to court, we were the ones that were charged" and the charges against Santiago were dropped. Pressed further on the matter, Villoch admitted that his group was charged with "assault and battery" against Santiago. Accordingly, I credit the testimony of Santiago and find that, on May 15, he was physically assaulted by strikers in the presence of Union Delegate Ricardo Villoch because he refused to join and support the Union in its work stoppage, and to coerce him into honoring the picket line. By this conduct, I conclude that Respondent violated Section 8(b)(1)(XA) of the Act. At the hearing, the General Counsel amended the complaint to add three allegations. These averments recited that, on two occasions on May 26, nonstriking employees were physically assaulted and their vehicles were stoned by strikers. On May 29, nonstriking employees were threatened with bodily or property injury by a striker. With respect to the May 29 incident, Carmelo Cubille testified that he was at the plant that day working as a laborer. At 5 p.m., he left the premises with a fellow employee to return to his home. As they drove to the gate, they were accosted by striker Jose Luis Rodriquez. In earshot of Cubille, Rodriquez addressed Cubille's compan- ion and stated that "we should not work any more because if not then they were going to jump us and give us a beating and burn our homes." Rodriquez left the scene momentari- ly and returned with a hand hidden behind his back. Believing that the striker possessed a concealed weapon, Cubille drove off with his companion. In light of Union President Fernandez' testimony that a union agent was present and in charge of the picket line at all times, I have no difficulty in finding that, by Rodriquez' threat to Cubille and another employee on May 29, Respondent violated Section 8(bX)( I XA) of the Act. How- ever, the episodes which occurred on May 26 present a different question of union culpability. In each case, the incidents occurred far from the picket line, and the culprits were strikers who held no office in the Union. Moreover, in each case, the General Counsel failed to establish by preponderant evidence that the Union has either instigat- ed, encouraged, adopted, or condoned the acts of savagery which were visited upon the unfortunate victims. Absent such proof, which is statutorily demanded, I am reluctantly constrained to dismiss these allegations from the com- plaint.6 nonstriker, that, on April 8, he was at home when a plant supervisor and two security guards visited him to inquire whether he desired to return to work, Leon agreed to do so, but he informed the supervisor that his automobile was in need of repair. The supervisor agreed to meet Leon at a service (Continued) 175 DECISIONS OF NATIONAL LABOR RELATIONS BOARD G. Possession of Explosive Devices and the Bombings Finally, the complaint alleges that, on April 7, Respon- dent "maintained explosive devices in a panel truck under its control by the picket line, the discovery of which explosive devices by the State Police, and the subsequent discovery of explosives and timing devices in the private vehicle and home of a striking employee and Union member, the attendant publicity in the local newspapers, plus the explosion of bombs at the homes of some of the Employer's nonstriking employees, had the effect of coercing Employer's employees in the exercise of rights guaranteed in Section 7 of the Act." The evidence relating to this allegation is not in essential dispute, and I find the facts to be as follows. Captain Teodoro Rovira, the commandant of the Ponce police, testified that, at 6 a.m. on April 7, he and approximately 30 policemen under his command were routinely patrolling the highway adjacent to the plant when he learned from an informant that a van belonging to the Union was parked nearby. The informant confided that he had seen approximately 200 pounds of rocks hidden in the vicinity of the pickets which could be used to injure the nonstrikers and police. Rovira rounded up a police detail to search the area, and found the cache of rocks. During the search, the commandant discovered a number of pieces of pipe and sticks near the van. Upon a closer scrutiny, Rovira found some glass bottles and a plastic gallon jug containing gasoline which were located near the platform of a trailer parked in the vicinity. Rovira and his men retrieved these articles and placed them in a police car. At this juncture, Rovira received the intelligence that the Union's vehicle, which was stationed nearby, and which had been utilized by Union President Fernandez and his fellow union officials to prepare food for the strikers and to pay them for picket duty during the strike, housed Molotov-cocktail bombs. The captain located Fernandez, and requested that he unlock the vehicle for a search. Fernandez complied with Rovira's directive. Upon entering the van, Rovira discovered two Molotov firebombs. On further investigation, he found two more such bombs outside the van in the picketing area. Following standard police procedures, the commandant transported the incendiaries to police headquarters. 7 Subsequently, this evidence was turned over to the Criminal Investigation Corps of the Police Department of Puerto Rico for further analysis and investigation. Concur- rently, Rovira summoned a police wrecker and the van was towed to police headquarters. Rounding out Rovira's testimony, he recounted that an arrest warrant was issued against Fernandez because of the discovery of volatile substances in the van and the contiguous area, and the case was referred to the local district attorney for prosecution. At the trial of Fernandez, station and drive him to the plant. Leon proceeded to a garage followed by the supervisor. When they arrived, a Volkswagen containing strikers Wilfredo Mercade, Pedro Colon, and Raul Colon, pulled up. One of the strikers shouted, "Hey, Julio. you are going to break strike. You are going in the plant to work." When Leon failed to respond to this taunt, one of the strikers threw a rock at the supervisor's vehicle, and he immediately drove off. Leon thereupon drove back home. Here, again, the General Counsel has the court found no probable cause for subjecting Fernan- dez to further legal proceedings because the owner of the van testified that he had loaned the vehicle to the Union rather than to an identifiable union official for use during the strike. When called to the stand, Union President Fernandez substantially corroborated the testimony of Rovira as to the events which transpired on the morning of April 7. It is undisputed and I find that, as a result of Fernandez' arrest and arraignment, it became common knowledge in the city of Ponce and its environs that a van, loaned to the Union to dispense food and picket pay, was found by the police to contain explosive devices, and that the nonstrikers quickly became aware of this happenstance. I find that, upon learning that the Union possessed these destructive artifacts in and around the picket line, the nonstriking employees had reason to believe that they would be the target of violence visited upon them by adherents of that labor organization if they persisted in crossing the picket line and refusing to support the Union in its strike against the Employer. I therefore conclude that, by this conduct, Respondent violated Section 8(bX I)(A) of the Act. This area of the complaint also encompasses the allegation that the firebombing of the homes of Rafael Velez, Pasqual Santiago, and Julio Leon in April, and the eremite bombing of the Seafarers' International Union's headquarters in Ponce, was offensive to the provisions of Section 8(bX 1)(A) of the Act. Velez testified without contradiction and I find that on the morning of April 26 at approximately 4 a.m. he returned from work at the plant to find his wife and children, in the company of the local police, assessing the damage to his living room and porch caused by a Molotov cocktail. By good fortune, Velez' spouse and five children were asleep in an adjacent bedroom, and suffered no injury. Pasqual Santiago's testimony is also undenied and I find that, at 8 p.m. on April 10, he returned from his job at the Ponce plant and retired to bed with his wife and two children. At 1 a.m. on the following morning, he was awakened by the explosion of two firebombs which demolished a side of his home. The police arrived and found two wicks at the scene which are the normal fuses for Molotov cocktails. As a result of this trauma, Santiago's wife was placed under the care of a psychiatrist. A few weeks later, he removed his family to his in-laws' house and remained at his abode to protect the edifice. Then, on Sunday evening, a firebomb destroyed his porch. Finally, at the end of April, while Santiago was visiting his wife and children at her parents' home, he received notification that his casa had been burned to the ground. Julio Leon testified that, after the encounter reported marginally above with strikers Wilfredo Mercado, Pedro Colon, and Raul Colon on April 8, he returned to his home rather than report to work at the behest of his supervisor. failed preponderantly to establish by proof that the Union fostered, was aware of, or condoned this serious misconduct by these strikers. Insofar as the complaint might be construed as encompassing this assault as a violation of the Act, I shall dismiss any allegation relevant thereto from the pleadings. I These devices, in Rovira's words, consisted of "a glass receptacle with inflammable liquid with a wick which is lit and which is thrown. And as the glass breaks the flames spread which have already been ignited." 176 UNION DE OPERADORES Y CANTEROS About 1 a.m. on April 9, while he was asleep, a Molotov cocktail exploded on his porch which caused substantial damage. Leon summoned the police and firemen, and the Criminal Investigation Corps undertook an investigation of the cause of the blast. On another occasion during the course of Respondent's strike against the Employer, the offices of the Seafarers' International Union (SIU) were torn by eremite or plastic bombs,8 and two such explosives were found inside the plant in late June. Each of the bombing incidents chronicled above were the subject of an intensive investigation by the local police and the Criminal Investigation Corps of the Common- wealth of Puerto Rico. Notwithstanding their diligent search for the perpetrators of these explosive incidents, no suspects, so far as this record stands, were either found, arrested, tried, or convicted. In the complaint, the General Counsel urges that I find that Respondent intruded upon the rights of nonstrikers protected by the Act, when, in violation of Section 8(b)(1)(A) of the legislation, it exploded incendiary and other bombs at the homes of nonstrikers and elsewhere. While the suspicion lurks that the Union, or its allies, with easy access to the tools of explosive violence, as evidenced by the van incident of April 7, and the Union's proclivity for physical violence during the strike, may have been the real miscreants in triggering these episodes, under our system of justice, suspicion alone cannot prevail over preponderant proof that, in unalterable fact, the Union was the wrongdoer. In sum, I will dismiss the allegations of the complaint which charge that Respondent violated Section 8(b)(1)(A) of the Act by exploding a variety of bombs at the homes of nonstrikers, as well as in other areas, because Union accountability has not been evidentially demon- strated. However, in doing so, I would make this very clear and emphatic observation. In his 13 years on the bench, this Judge has presided over many trials, both in Puerto Rico and on the Mainland, in which, during the course of a prolonged economic strike, the adversaries became locked in deadly embrace. Because of the height of emotions, violence, regrettably, found its way into the labor arena among the immediate participants. But, in this case, it is not a man, but a coward, who by stealth, and under the cover of night, firebombs and terrorizes a home where only sleeping women and children, unconnected with the immediate strife, repose. Whoever firebombed the home of Rafael Velez on the morning of April 26, or the house of Pasqual Santiago on April 10, and twice thereafter, reducing it to ruins and causing Santiago's wife to suffer a nervous breakdown, or the home of Julio Leon, can hardly be characterized as a proud hero in the cause. To this paper warrior, who has run from the battlefield and crept into the bushes of darkness to destroy innocents, his only reward can be shame. 8 Following the commencement of Respondent's strike against the Employer on January 31, the SIU filed a representation petition with the Board seeking an election to oust Respondent as the collective-bargaining representative of the unit employees at the Ponce plant. " In the event no exceptions are filed as provided by Sec. 102.46 of the IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the Employer's operations described in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that Respondent has violated and is violating Section 8(bXIXA) of the Act, I shall order that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. CONCLUSIONS OF LAW I. Puerto Rican Cement Company, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. By blocking ingress and egress to the plant through mass picketing and by placing or throwing objects in the driveways; by engaging in acts of violence against both the body and property of nonstriking employees; by intimidat- ing nonstrikers at the picket line; by threatening said employees with both physical and property injury during home visitations; and by possessing, maintaining, and storing any explosive devices or other weapons at or near the premises of the Ponce plant, Respondent has engaged in and is engaging in unfair labor practices outlawed by Section 8(b)( IXA) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact and conclusions of law and the entire record, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby issue the following recommended: ORDER9 Respondent Union de Operadores y Canteros de la Industria del Cemento de Ponce, its officers, agents, and representatives, shall: I. Cease and desist from: (a) Blocking ingress and egress of nonstriking employees, supervisors, and employees of suppliers, to the plant through mass picketing and by placing or throwing objects in the driveways. (b) Engaging in acts of violence against both the body and property of nonstriking employees because they crossed the picket line. Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 7In DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Intimidating nonstriking employees at the picket line to prevent them from crossing said line. (d) Threatening nonstriking employees with both physi- cal and property injury during home visitations if they failed and refused to support and assist it in its strike against the Employer. (e) Possessing, maintaining, or storing any explosive device or other weapon at or near the premises of the Ponce plant. (f) In any other manner restraining or coercing employ- ees in the exercise of rights guaranteed to them in Section 7 of the Act. 2. Take the following affirmative action which I deem is necessary to effectuate the policies of the Act: (a) Post at its offices in Ponce, Puerto Rico, copies of the attached notice marked "Appendix." to Copies of said notice, on forms to be provided by the Regional Director for Region 24, after being duly signed by Respondent's duly authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are custom- arily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail to the Regional Director for Region 24, copies of the attached notice marked "Appendix" for posting by Puerto Rican Cement Company, Inc., at its place of business in Ponce, Puerto Rico, in areas where notices to employees are customarily posted, if the Employer is willing to do so. Copies of said notice, to be provided by the Regional Director for Region 24, after being signed by a representative of Respondent, shall be forthwith returned to said Regional Director. m' In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." (c) Notify the Regional Director for Region 24, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed as to those allegations not specifically found herein. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT block nonstriking employees, supervi- sors, or employees of suppliers, from going into or coming out of the Ponce plant either by mass picketing or by placing or throwing objects in the driveway. WE WILL NOT engage in acts of violence against the body or property of nonstriking employees because they cross the picket line at the Ponce plant. WE WILL NOT intimidate nonstriking employees at the picket line by carrying shovels, brooms, or any other potential weapons in order to prevent those employees from crossing the picket line. WE WILL NOT threaten the nonstriking employees with physical or property injury during home visits if they fail or refuse to support and assist our Union in its strike against the Puerto Rican Cement Company, Inc. WE WILL NOT possess, maintain, or store any explosive devices or other weapons at or near the premises of the Ponce plant. WE WILL NOT in any other manner restrain or coerce employees in the exercise of their rights guaranteed under the National Labor Relations Act, as amended. UNION DE OPERADORES Y CANTEROS DE LA INDUSTRIAL DEL CEMENTO DE PONCE 178