Hotel Holiday Inn de Isla Verde

496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Isla Verde Hotel Corporation d/b/a Hotel Holiday AMENDED CONCLUSIONS OF LAW Inn de Isla Verde and Asociacion de Empleados del Casino del Holiday Inn de Isla Verde. Substitute the following for the Administrative Cases 24-CA-4269 and 24-CA-4381 Law Judge's Conclusion of Law 5: "5. By discharging and refusing to reinstate December 4, 1981 unfair labor practice strikers, Respondent has vio- DECISION AND ORDER lated Section 8(aXl) and (3) of the Act." ORDER BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- On June 15, 1981, Administrative Law Judge GeOn June 15, 1981, Administrhatthive Law Judge lations Board adopts as its Order the recommended George F. Mclnerny issued the attached Decision Order of the Administrative Law Judge, as modi- in this proceeding. Thereafter, Respondent filed ex- ed eow and here ord s t t Respondent, fled below, and hereby orders that the Respondent, ceptions and a supporting brief. Isla Verde Hotel Corporation d/b/a Hotel Holiday Pursuant to the provisions of Section 3(b) of the y Pursuant to the provisions of Section 3(b) of the Inn de Isla Verde, Carolina, Puerto Rico, its offi- National Labor Relations Act, as amended, the Na-,- cers, agents, successors, and assigns, shall take the tional Labor Relations Board has delegated its au- tional Labor Relations Board has delegated Its au- action set forth in the said recommended Order, as thority in this proceeding to a three-member panel. so modified: The Board has considered the record and the at- 1. Substitute the following for paragraph l(g): tached Decision in light of the exceptions and brief 1 S t f f n 1 . "(g) In any other manner interfering with, re- and has decided to affirm the rulings, findings, and straining, or coercing employees in the exercise of straining, or coercing employees in the exercise of conclusions 2 of the Administrative Law Judge andd t m S n 7 of t A ." ~~~~~, . ,. > ~~~ , , rights guaranteed them by Section 7 of the Act." to adopt his recommended Order, as modified th a,23 2. Substitute the following for paragraph 2(a): herein. 3"(a) Upon request, bargain with Asociacion de ' Respondent has excepted to certain credibility findings made by the Empleados del Casino del Holiday Inn de Isla Administrative Law Judge. It is the Board's established policy not to Verde as the representative of employees in the fol- overrule an administrative law judge's resolutions with respect to credi- lowing unit admitted to be appropriate: bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products. All croupier employees of Respondent em- Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. ployed at its hotel, exclusive of all other em- Members Fanning and Jenkins agree with the Administrative Law ployees, office clerical employees, guards and Judge's finding that the strike which occurred herein was in response to all supervisors as defined in Section 2(11) of serious and aggravated unfair labor practices, but, for the reasons sepa- rately stated by them in The Dow Chemical Company, 244 NLRB 1060, the Act." 1061, fn. 8 (1979), they would find the strike to be protected activity re- gardless of the seriousness of Respondent's unlawful conduct. 3. Substitute the attached notice for that of the We find it unnecessary to adopt the Administrative Law Judge's specu- Administrative Law Judge. lation that Respondent regarded Felix Ramos as more competent and versatile than other employees. We note that, contrary to the Administrative Law Judge's statement e shal conform the Administrative Law Judge's Conclusion of Law that the record does not indicate that the union officers told Assistant 5 with his findings by inserting "discharging and" between "By" and "re- Manager Jose Alvarez what they were planning to do, Alvarez testified fusing." they had told him their plans in the event they did not receive the bonus We note that the Administrative Law Judge inadvertently omitted that night. We also note that the Administrative Law Judge inadvertently pars. (e) and 2(a) of his recommended Order from his notice. We shall stated that Ruben Ramos testified he had seen Rafael Castillo on the modify the notice to conform with the Administrative Law Judges rec- night of September 12, 1980, talking with David Maza, when Ruben ommended Order, as modified herein. Ramos actually testified that Hector Rivera told him he (Rivera) had In agreeing with the Administrative Law Judge's make-whole remedy seen Castillo talking with Maza. These errors, to which Respondent ex- with respect to the discharged unfair labor practice strikers, we note that cepted and which we correct accordingly, do not affect the Administra- t he remedy shall be computed according to the principles enunciated in tive Law Judge's conclusions or our adoption thereof. Abilities and Goodwill Inc., 241 NLRB 27 (1979). In the absence of exceptions thereto, we adopt pro forma the Admin- Member Jenkins notes that he would award interest on any backpay istrative Law Judge's dismissal of the allegation that Respondent violated due based on the formula set forth in his dissent in Olympic Medical Cr- Sec. 8(aXI) of the Act by offering a striking employee benefits if he re- poraion 250 NLR B 146 (1980). turned to work. We also note that no exceptions have been filed regard- ing the Administrative Law Judge's conclusion that a no-strike clause APPENDIX may be implied from the parties' collective-bargaining agreement. ' We believe that a broad remedial order is warranted in this case, under the standard of Hickmott Foods, Inc., 242 NLRB 1357 (1979), inas- NOTICE To EMPLOYEES much as Respondent has engaged in numerous serious violations of Sec. POSTED BY ORDER OF THE 8(aXl), (3), (4), and (5) of the Act and has thereby demonstrated a gener- NATIONAL LABOR RELATIONS BOARD al disregard for employees' fundamental statutory rights. Accordingly, we shall modify the Administrative Law Judge's recommended Order by An Agency of the United States Government inserting the broad "in any other manner" cease-and-desist language. We shall also correct a typographical error in the Administrative Law Judge's recommended Order, par. 2(a) of which inadvertently refers to After a hearing at which all sides had an opportu- "officer clerical employees" rather than "office clerical employees." nity to present evidence and state their positions, 259 NLRB No. 73 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Isla Verde Hotel Corporation d/b/a Hotel Holiday AMENDED CONCLUSIONS OF LAW Inn de Isla Verde and Asociacion de Empleados del Casino del Holiday Inn de Isla Verde. Substitute the following for the Administrative Cases 24-CA-4269 and 24-CA-4381 L a w Judge's Conclusion of Law 5: "5. By discharging and refusing to reinstate December 4, 1981 unfair labor practice strikers, Respondent has vio- DECISION AND ORDER lat ed S e c tio n 8 (a) l ) a nd (3 ) o f th e A c t." ORT^PT BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN Pursuant to Section 10(c) of the National Labor On June 15, 1981, Administrative Law Judge Relations Act, as amended, the National Labor Re- On June _5, 1981, Administrative Law Judge ^ ^ g ,^ ^^ ^ eo mne Geore F Mc~ern isued he ttahed eciion lations Board adopts as its Order the recommended George F. Mclnerny issued the attached Decision A insrtv La Jugsmo - in this proceeding. Thereafter, Respondent filed ex- O o t At L J asp odi- ceptions an a supportig brief. fed below, and hereby orders that the Respondent, ceptions and a supporting brief. ^ ^ oprto // oe oia Pursuant to the provisions of Section 3(b) of the I V H C d H H y National Labor Relations Act, as amended, the Na- I d I V d , i o tIonal Labor Relations Board has- delegated its au- cers, agents, successors, and assigns, shall take the tional Labor Relations Board has delegated its au- , ' * , . i <-j thority in this proceeding to a three-member panel. action set forth in the said recommended Order, as thonity in this proceeding to a three-member panel. omndif ied The Board has considered the record and the at- s modified: , i. -, ^ * * -rir.1- ^ -, .- * r-1 Substitute the following for paragraph K~g): tached Decision in light of the exceptions and brief 1 S the f f p a p **g) 1(g) In any other manner interfering with, re- and has decided to affirm the rulings, findings,' and s o c e in t e i * 2 r .i- *-.**..* T T? -straining, or coercing employees in the exercise of conclusions2 of the Administrative Law Judge and rh g t by S t 7 of t Act." , . ,. , , .^ , -,- ,~rights guaranteed them by Section 7 of the Act." to adopt his recommended Order, as modified ici*t *~ i -/ to adp. 3 r2. Substitute the following for paragraph 2(a): he re in .3 "(a) Upon request, bargain with Asociacion de * Respondent has excepted to certain credibility findings made by the Empleados del Casino del Holiday Inn de Isla Administrative Law Judge. It is the Board's established policy not to Verde as the representative of employees in the fol- overrule an administrative law judge's resolutions with respect to credi- lowing unit admitted to be appropriate: bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. S candard Dry Wall Products, All croupier employees of Respondent em- Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings,.ployed at its hotel, exclusive of all Other em- Members Fanning and Jenkins agree with the Administrative Law ployees, office clerical employees, guards and Judge's Finding that the strike which occurred herein was in response to all supervisors as defined in Section 2( l1) of serious and aggravated unfair labor practices, but, for the reasons sepa- rately stated by them in The Dow Chemical Company, 244 NLRB 1060, the Act." 1061, fn. 8 (1979), they would find the strike to be protected activity re- gardless of the seriousness of Respondent's unlawful conduct. 3. Substitute the attached notice for that of the We rind it unnecessary to adopt the Administrative Law Judge's specu- Administrative Law Judge. lation that Respondent regarded Felix Ramos as more competent and versatile than other employees. We note that, contrary to the Administrative Law Judge's statement We sh all conform th e Administrative Law Judge's Conclusion of Law that the record does not indicate that the union officers told Assistant 5 w ith his findings by inserting "discharging and" between "By" and "re- Manager Jose Alvarez what they were planning to do, Alvarez testified fusing." they had told him their plans in the event they did not receive the bonus We n ote th at th e Administrative Law Judge inadvertently omitted that night. We also note that the Administrative Law Judge inadvertently pars. l(e) and 2(a) of his recommended Order from his notice. We shall stated that Ruben Ramos testified he had seen Rafael Castillo on the modify the notice to conform with the Administrative Law Judge's rec- night of September 12, 1980, talking with David Maza, when Ruben ommended Order, as modified herein. Ramos actually testified that Hector Rivera told him he (Rivera) had I n agreeing wit h the Administrative Law Judge's make-whole remedy seen Castillo talking with Maza. These errors, to which Respondent ex- wi th respect to th e discharged unfair labor practice strikers, we note that cepted and which we correct accordingly, do not affect the Administra- the remedy shall be computed ac c o rd ing to th e principles en u nc iate d in tive Law Judge's conclusions or our adoption thereof. Abilities and Goodwill. Inc., 241 NLRB 27 (1979). ' In the absence of exceptions thereto, we adopt pro forma the Admin- M em b er Jen kins no te s th at h e w o u ld aw a rd inte re st on any backpay istrative Law Judge's dismissal of the allegation that Respondent violated d u e ba se d on the formula se t fo r th in his d issen t in Olympic Medica l Cor- Sec. 8(aXI) of the Act by offering a striking employee benefits if he re- por"aion 2 50 N L R B 14 6 <1980). turned to work. We also note that no exceptions have been filed regard- ing the Administrative Law Judge's conclusion that a no-strike clause APPENDIX may be implied from the parties' collective-bargaining agreement. I We believe that a broad remedial order is warranted in this case, under the standard of Hickmoan Foods. Inc., 242 NLRB 1357 (1979), inas- NOTICE To EMPLOYEES much as Respondent has engaged in numerous serious violations of Sec. POSTED BY ORDER OF THE 9<aXO), (3), (4), and (5) of the Act and has thereby demonstrated a gener- NATIONAL LABOR RELATIONS BOARD al disregard for employees' fundamental statutory rights. Accordingly, we shall modify the Administrative Law Judge's recommended Order by An Agency Of the United States Government inserting the broad "in any other manner" cease-and-desist language. We shall also correct a typographical error in the Administrative Law >,.. , . .ri i idi , . Judge's recommended Order, par. 2(a) of which inadvertently refers to A ft e r a hearing at which all Sides had an opportu- "officer clerical employees" rather than "office clerical employees." nity tO present evidence and State their positions, 259 NLRB No. 73 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Isla Verde Hotel Corporation d/b/a Hotel Holiday AMENDED CONCLUSIONS OF LAW Inn de Isla Verde and Asociacion de Empleados del Casino del Holiday Inn de Isla Verde. Substitute the following for the Administrative Cases 24-CA-4269 and 24-CA-4381 L a w Judge's Conclusion of Law 5: "5. By discharging and refusing to reinstate December 4, 1981 unfair labor practice strikers, Respondent has vio- DECISION AND ORDER lat ed S e c tio n 8 (a) l ) a nd (3 ) o f th e A c t." ORT^PT BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN Pursuant to Section 10(c) of the National Labor On June 15, 1981, Administrative Law Jude TRelations Act, as amended, the National Labor Re- On June _5, 1981, Administrative Law Judge ^ ^ g ,^ ^^ ^ eo mne Geore F Mc~ern isued he ttahed eciion lations Board adopts as its Order the recommended George F. Mclnerny issued the attached Decision A insrtv La Jugsmo - in this proceeding. Thereafter, Respondent filed ex- O o t At L J asp odi- ceptions an a supportig brief. fed below, and hereby orders that the Respondent, ceptions and a supporting brief. ^ ^ oprto // oe oia Pursuant to the provisions of Section 3(b) of the I V H C d H H y National Labor Relations Act, as amended, the Na- I d I V d , i o tIonal Labor Relations Board has- delegated its au- cers, agents, successors, and assigns, shall take the tional Labor Relations Board has delegated its au- , ' * , . i <-j thority in this proceeding to a three-member panel. action set forth in the said recommended Order, as thonity in this proceeding to a three-member panel. omndif ied The Board has considered the record and the at- s modified: , i. -, ^ * * -rir.1- ^ -, .- * r-1 Substitute the following for paragraph K~g): tached Decision in light of the exceptions and brief 1 S the f f p a p **g) 1(g) In any other manner interfering with, re- and has decided to affirm the rulings, findings,' and s o c e in t e i * 2 r .i- *-.**..* T T? -straining, or coercing employees in the exercise of conclusions2 of the Administrative Law Judge and rh g t by S t 7 of t Act." , . ,. , , .^ , -,- ,~rights guaranteed them by Section 7 of the Act." to adopt his recommended Order, as modified ici*t *~ i -/ to adp. 3 r2. Substitute the following for paragraph 2(a): he re in .3 "(a) Upon request, bargain with Asociacion de * Respondent has excepted to certain credibility findings made by the Empleados del Casino del Holiday Inn de Isla Administrative Law Judge. It is the Board's established policy not to Verde as the representative of employees in the fol- overrule an administrative law judge's resolutions with respect to credi- lowing unit admitted tO be appropriate: bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. S candard Dry Wall Products, All croupier employees of Respondent em- Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings,.ployed at its hotel, exclusive of all Other em- Members Fanning and Jenkins agree with the Administrative Law ployees, office clerical employees, guards and Judge's finding that the strike which occurred herein was in response to all supervisors as defined in Section 2( l1) of serious and aggravated unfair labor practices, but, for the reasons sepa- rately stated by them in The Dow Chemical Company, 244 NLRB 1060, the Act." 1061, fn. 8 (1979), they would find the strike to be protected activity re- gardless of the seriousness of Respondent's unlawful conduct. 3. Substitute the attached notice for that of the We rind it unnecessary to adopt the Administrative Law Judge's specu- Administrative Law Judge. lation that Respondent regarded Felix Ramos as more competent and versatile than other employees. We note that, contrary to the Administrative Law Judge's statement We sh all conform th e Administrative Law Judge's Conclusion of Law that the record does not indicate that the union officers told Assistant 5 w ith his findings by inserting "discharging and" between "By" and "re- Manager Jose Alvarez what they were planning to do, Alvarez testified fusing." they had told him their plans in the event they did not receive the bonus We n ote th at th e Administrative Law Judge inadvertently omitted that night. We also note that the Administrative Law Judge inadvertently pars. l(e) and 2(a) of his recommended Order from his notice. We shall stated that Ruben Ramos testified he had seen Rafael Castillo on the modify the notice to conform with the Administrative Law Judge's rec- night of September 12, 1980, talking with David Maza, when Ruben ommended Order, as modified herein. Ramos actually testified that Hector Rivera told him he (Rivera) had I n agreeing with the Administrative Law Judge's make-whole remedy seen Castillo talking with Maza. These errors, to which Respondent ex- wi th respect to th e discharged unfair labor practice strikers, we note that cepted and which we correct accordingly, do not affect the Administra- the remedy shall be computed ac c o rd ing to th e principles en u nc iate d in tive Law Judge's conclusions or our adoption thereof. Abilities and Goodwill. Inc., 241 NLRB 27 (1979). ' In the absence of exceptions thereto, we adopt pro forma the Admin- M em b er Jen kins no te s th at h e w o u ld aw a rd inte re st on any backpay istrative Law Judge's dismissal of the allegation that Respondent violated d u e ba se d on the formula se t fo r th in his d issen t in Olympic Medica l Cor- Sec. 8(aXI) of the Act by offering a striking employee benefits if he re- por"aion 2 50 N L R B 14 6 <1980). turned to work. We also note that no exceptions have been filed regard- ing the Administrative Law Judge's conclusion that a no-strike clause APPENDIX may be implied from the parties' collective-bargaining agreement. I We believe that a broad remedial order is warranted in this case, under the standard of Hickmoan Foods. Inc., 242 NLRB 1357 (1979), inas- NOTICE To EMPLOYEES much as Respondent has engaged in numerous serious violations of Sec. POSTED BY ORDER OF THE 9<aXO), (3), (4), and (5) of the Act and has thereby demonstrated a gener- NATIONAL LABOR RELATIONS BOARD al disregard for employees' fundamental statutory rights. Accordingly, we shall modify the Administrative Law Judge's recommended Order by An Agency Of the United States Government inserting the broad "in any other manner" cease-and-desist language. We shall also correct a typographical error in the Administrative Law >,.. , . .ri i idi ,. Judge's recommended Order, par. 2(a) of which inadvertently refers to A ft e r a hearing at which all Sides had an opportu- "officer clerical employees" rather than "office clerical employees." nity tO present evidence and State their positions, 259 NLRB No. 73 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Isla Verde Hotel Corporation d/b/a Hotel Holiday AMENDED CONCLUSIONS OF LAW Inn de Isla Verde and Asociacion de Empleados del Casino del Holiday Inn de Isla Verde. Substitute the following for the Administrative Cases 24-CA-4269 and 24-CA-4381 L a w Judge's Conclusion of Law 5: "5. By discharging and refusing to reinstate December 4, 1981 unfair labor practice strikers, Respondent has vio- DECISION AND ORDER lat ed S e c tio n 8 (a) l ) a nd (3 ) o f th e A c t." ORT^PT BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN Pursuant to Section 10(c) of the National Labor On June 15, 1981, Administrative Law Jude TRelations Act, as amended, the National Labor Re- On June _5, 1981, Administrative Law Judge ^ ^ g ,^ ^^ ^ eo mne Geore F Mc~ern isued he ttahed eciion lations Board adopts as its Order the recommended George F. Mclnerny issued the attached Decision A insrtv La Jugsmo - in this proceeding. Thereafter, Respondent filed ex- O o t At L J asp odi- ceptions an a supportig brief. fed below, and hereby orders that the Respondent, ceptions and a supporting brief. ^ ^ oprto // oe oia Pursuant to the provisions of Section 3(b) of the I V H C d H H y National Labor Relations Act, as amended, the Na- I d I V d , i o tIonal Labor Relations Board has- delegated its au- cers, agents, successors, and assigns, shall take the tional Labor Relations Board has delegated its au- , ' * , . i <-j thority in this proceeding to a three-member panel. action set forth in the said recommended Order, as thonity in this proceeding to a three-member panel. omndif ied The Board has considered the record and the at- s modified: , i. -, ^ * * -rir.1- ^ -, .- * r-1 Substitute the following for paragraph K~g): tached Decision in light of the exceptions and brief 1 S the f f p a p **g) 1(g) In any other manner interfering with, re- and has decided to affirm the rulings, findings,' and s o c e in t e i * 2 r .i- *-.**..* T T? -straining, or coercing employees in the exercise of conclusions2 of the Administrative Law Judge and rh g t by S t 7 of t Act." , . ,. , , .^ , -,- ,~rights guaranteed them by Section 7 of the Act." to adopt his recommended Order, as modified ici*t *~ i -/ to adp. 3 r2. Substitute the following for paragraph 2(a): he re in .3 "(a) Upon request, bargain with Asociacion de * Respondent has excepted to certain credibility findings made by the Empleados del Casino del Holiday Inn de Isla Administrative Law Judge. It is the Board's established policy not to Verde as the representative of employees in the fol- overrule an administrative law judge's resolutions with respect to credi- lowing unit admitted tO be appropriate: bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. S candard Dry Wall Products, All croupier employees of Respondent em- Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings,.ployed at its hotel, exclusive of all Other em- Members Fanning and Jenkins agree with the Administrative Law ployees, office clerical employees, guards and Judge's finding that the strike which occurred herein was in response to all supervisors as defined in Section 2( l1) of serious and aggravated unfair labor practices, but, for the reasons sepa- rately stated by them in The Dow Chemical Company, 244 NLRB 1060, the Act." 1061, fn. 8 (1979), they would find the strike to be protected activity re- gardless of the seriousness of Respondent's unlawful conduct. 3. Substitute the attached notice for that of the We rind it unnecessary to adopt the Administrative Law Judge's specu- Administrative Law Judge. lation that Respondent regarded Felix Ramos as more competent and versatile than other employees. We note that, contrary to the Administrative Law Judge's statement We sh all conform th e Administrative Law Judge's Conclusion of Law that the record does not indicate that the union officers told Assistant 5 w ith his findings by inserting "discharging and" between "By" and "re- Manager Jose Alvarez what they were planning to do, Alvarez testified fusing." they had told him their plans in the event they did not receive the bonus We n ote th at th e Administrative Law Judge inadvertently omitted that night. We also note that the Administrative Law Judge inadvertently pars. l(e) and 2(a) of his recommended Order from his notice. We shall stated that Ruben Ramos testified he had seen Rafael Castillo on the modify the notice to conform with the Administrative Law Judge's rec- night of September 12, 1980, talking with David Maza, when Ruben ommended Order, as modified herein. Ramos actually testified that Hector Rivera told him he (Rivera) had I n agreeing wit h the Administrative Law Judge's make-whole remedy seen Castillo talking with Maza. These errors, to which Respondent ex- wi th respect to th e discharged unfair labor practice strikers, we note that cepted and which we correct accordingly, do not affect the Administra- the remedy shall be computed ac c o rd ing to th e principles en u nc iate d in tive Law Judge's conclusions or our adoption thereof. Abilities and Goodwill. Inc., 241 NLRB 27 (1979). ' In the absence of exceptions thereto, we adopt proforma the Admin- M em b er Jen kins no te s th at h e w o u ld aw a rd inte re st on any backpay istrative Law Judge's dismissal of the allegation that Respondent violated d u e ba se d on the formula se t fo r th in his d issen t in Olympic Medica l Cor- Sec. 8(aXI) of the Act by offering a striking employee benefits if he re- por"aion 2 50 N L R B 14 6 <1980). turned to work. We also note that no exceptions have been filed regard- ing the Administrative Law Judge's conclusion that a no-strike clause APPENDIX may be implied from the parties' collective-bargaining agreement. I We believe that a broad remedial order is warranted in this case, under the standard of Hickmoan Foods. Inc., 242 NLRB 1357 (1979), inas- NOTICE To EMPLOYEES much as Respondent has engaged in numerous serious violations of Sec. POSTED BY ORDER OF THE 9<aXO), (3), (4), and (5) of the Act and has thereby demonstrated a gener- NATIONAL LABOR RELATIONS BOARD al disregard for employees' fundamental statutory rights. Accordingly, we shall modify the Administrative Law Judge's recommended Order by An Agency Of the United States Government inserting the broad "in any other manner" cease-and-desist language. We shall also correct a typographical error in the Administrative Law >,.. , . .ri i idi ,. Judge's recommended Order, par. 2(a) of which inadvertently refers to A ft e r a hearing at which all Sides had an opportu- "officer clerical employees" rather than "office clerical employees." nity tO present evidence and State their positions, 259 NLRB No. 73 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Isla Verde Hotel Corporation d/b/a Hotel Holiday AMENDED CONCLUSIONS OF LAW Inn de Isla Verde and Asociacion de Empleados del Casino del Holiday Inn de Isla Verde. Substitute the following for the Administrative Cases 24-CA-4269 and 24-CA-4381 L a w Judge's Conclusion of Law 5: "5. By discharging and refusing to reinstate December 4, 1981 unfair labor practice strikers, Respondent has vio- DECISION AND ORDER lat ed S e c tio n 8 (a) l ) a nd (3 ) o f th e A c t." ORT^PT BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN Pursuant to Section 10(c) of the National Labor On June 15, 1981, Administrative Law Jude TRelations Act, as amended, the National Labor Re- On June _5, 1981, Administrative Law Judge ^ ^ g ,^ ^^ ^ eo mne Geore F Mc~ern isued he ttahed eciion lations Board adopts as its Order the recommended George F. Mclnerny issued the attached Decision A insrtv La Jugsmo - in this proceeding. Thereafter, Respondent filed ex- O o t At L J asp odi- ceptions an a supportig brief. fed below, and hereby orders that the Respondent, ceptions and a supporting brief. ^ ^ oprto // oe oia Pursuant to the provisions of Section 3(b) of the I V H C d H H y National Labor Relations Act, as amended, the Na- I d I V d , i o tIonal Labor Relations Board has- delegated its au- cers, agents, successors, and assigns, shall take the tional Labor Relations Board has delegated its au- , ' * , . i <-j thority in this proceeding to a three-member panel. action set forth in the said recommended Order, as thonity in this proceeding to a three-member panel. omndif ied The Board has considered the record and the at- s modified: , i. -, ^ * * -rir.1- ^ -, .- * r-1 Substitute the following for paragraph K~g): tached Decision in light of the exceptions and brief 1 S the f f p a p **g) 1(g) In any other manner interfering with, re- and has decided to affirm the rulings, findings,' and s o c e in t e i * 2 r .i- *-.**..* T T? -straining, or coercing employees in the exercise of conclusions2 of the Administrative Law Judge and rh g t by S t 7 of t Act." , . ,. , , .^ , -,- ,~rights guaranteed them by Section 7 of the Act." to adopt his recommended Order, as modified ici*t *~ i -/ to adp. 3 r2. Substitute the following for paragraph 2(a): he re in .3 "(a) Upon request, bargain with Asociacion de * Respondent has excepted to certain credibility findings made by the Empleados del Casino del Holiday Inn de Isla Administrative Law Judge. It is the Board's established policy not to Verde as the representative of employees in the fol- overrule an administrative law judge's resolutions with respect to credi- lowing unit admitted tO be appropriate: bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. S candard Dry Wall Products, All croupier employees of Respondent em- Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings,.ployed at its hotel, exclusive of all Other em- Members Fanning and Jenkins agree with the Administrative Law ployees, office clerical employees, guards and Judge's finding that the strike which occurred herein was in response to all supervisors as defined in Section 2( l1) of serious and aggravated unfair labor practices, but, for the reasons sepa- rately stated by them in The Dow Chemical Company, 244 NLRB 1060, the Act." 1061, fn. 8 (1979), they would find the strike to be protected activity re- gardless of the seriousness of Respondent's unlawful conduct. 3. Substitute the attached notice for that of the We rind it unnecessary to adopt the Administrative Law Judge's specu- Administrative Law Judge. lation that Respondent regarded Felix Ramos as more competent and versatile than other employees. We note that, contrary to the Administrative Law Judge's statement We sh all conform th e Administrative Law Judge's Conclusion of Law that the record does not indicate that the union officers told Assistant 5 w ith his findings by inserting "discharging and" between "By" and "re- Manager Jose Alvarez what they were planning to do, Alvarez testified fusing." they had told him their plans in the event they did not receive the bonus We n ote th at th e Administrative Law Judge inadvertently omitted that night. We also note that the Administrative Law Judge inadvertently pars. l(e) and 2(a) of his recommended Order from his notice. We shall stated that Ruben Ramos testified he had seen Rafael Castillo on the modify the notice to conform with the Administrative Law Judge's rec- night of September 12, 1980, talking with David Maza, when Ruben ommended Order, as modified herein. Ramos actually testified that Hector Rivera told him he (Rivera) had I n agreeing wit h the Administrative Law Judge's make-whole remedy seen Castillo talking with Maza. These errors, to which Respondent ex- wi th respect to th e discharged unfair labor practice strikers, we note that cepted and which we correct accordingly, do not affect the Administra- the remedy shall be computed ac c o rd ing to th e principles en u nc iate d in tive Law Judge's conclusions or our adoption thereof. Abilities and Goodwill. Inc., 241 NLRB 27 (1979). ' In the absence of exceptions thereto, we adopt pro forma the Admin- M em b er Jen kins no te s th at h e w o u ld aw a rd inte re st on any backpay istrative Law Judge's dismissal of the allegation that Respondent violated d u e ba se d on the formula se t fo r th in his d issen t in Olympic Medica l Cor- Sec. 8(aXI) of the Act by offering a striking employee benefits if he re- p ra "'ion 2 50 N L R B 14 6 <1980). turned to work. We also note that no exceptions have been filed regard- ing the Administrative Law Judge's conclusion that a no-strike clause APPENDIX may be implied from the parties' collective-bargaining agreement. I We believe that a broad remedial order is warranted in this case, under the standard of Hickmoan Foods. Inc., 242 NLRB 1357 (1979), inas- NOTICE To EMPLOYEES much as Respondent has engaged in numerous serious violations of Sec. POSTED BY ORDER OF THE 9<aXO), (3), (4), and (5) of the Act and has thereby demonstrated a gener- NATIONAL LABOR RELATIONS BOARD al disregard for employees' fundamental statutory rights. Accordingly, we shall modify the Administrative Law Judge's recommended Order by An Agency Of the United States Government inserting the broad "in any other manner" cease-and-desist language. We shall also correct a typographical error in the Administrative Law >,.. , . .ri i idi ,. Judge's recommended Order, par. 2(a) of which inadvertently refers to A ft e r a hearing at which all Sides had an opportu- "officer clerical employees" rather than "office clerical employees." nity tO present evidence and State their positions, 259 NLRB No. 73 HOTEL HOLIDAY INN DE ISLA VERDE 497 the National Labor Relations Board found that we pervisors as defined in Section 2(11) of the have violated the National Labor Relations Act, as Act. amended, and has ordered us to post this notice. ISLA VERDE HOTEL CORPORATION WE WILL NOT unilaterally discontinue our LA VERE HOTEL C RATION Christmas bonus and WE WILL NOT refuse to D D bargain about that bonus. WE WILL NOT threaten or discharge unfair DECISION labor practice strikers who are on strike be- cause of our unfair labor practices. STATEMENT OF THE CASE WE WILL NOT deny unpaid leave, issue writ- GEORGE F. MCINERNY, Administrative Law Judge: ten reprimands to, change shifts or days off, or This matter began with the filing of a charge in Case 24- deny the right to swap shifts of our employees CA-4269 on January 28, 1980, by Asociacion de Em- because they engaged in union or protected pleados del Casino del Holiday Inn de Isla Verde, herein activities, or filed charges or gave testimony referred to as the Union or the Charging Party.' The under the National Labor Relations Act. charge alleged thai Isla Verde Hotel Corporation, d/b/a Hotel Holiday Inn de Isla Verde,2 herein referred to as WE WILL NOT discharge or refuse to rein- Respondent,3 the hotel, or the casino, had refused to pay state our employees or revoke condonations of a Christmas bonus, had refused to bargain with the their acts because they engaged in union or Union, and had discharged 16 employees, all alleged to concerted activities, or filed charges or gave be unfair labor practices in violation of Section 8(a)(l), testimony under the National Labor Relations (3), and (5) of the National Labor Relations Act, as Act. amended, 29 U.S.C. §151 et seq., herein referred to as the Act. The charge was amended on February 1, 1980, and WE WILL NOT require our employees to sign on March 20, 1980, the Regional Director for Region 24 waivers of statutory rights in order to obtain of the National Labor Relations Board issued a com- reinstatement. plaint alleging violations of Section 8(a)(l), (3), and (5) WE WILL NOT in any other manner interfere of the Act. Respondent duly filed an answer, denying the with, coerce, or restrain our employees in the commission of any unfair labor practices. exercise of the rights guaranteed under the Na- Pursuant to notice accompanying the complaint, the tional Labor Relations Act. matter came on to hearing before me in Hato Rey, WE WILL offer to Jose Crespo, Humberto Puerto Rico, on June 16, 1980. The hearing continued on June 17, 18, and 19, at which time counsel for Respond- Sanchez, Arnaldo Delgado, Geraldo Rodri- ent, Ramos-Acosta, became ill, and, by agreement of all guez, and Felix Ramos immediate and full re- parties, the matter was continued to August 4, 1980. The instatement to their former jobs or, if those hearing proceeded on August 5, 6, and concluded on jobs no longer exist, to substantially equivalent August 7, 1980, again in Hato Rey, Puerto Rico. jobs without prejudice to their seniority or Thereafter, on September 2, 1980, I received notice other rights and privileges and WE WILL make from the official reporter in this matter that certain tapes them, together with all employees who en- containing a portion of the testimony received at this gaged in a strike on and after December 20, hearing on August 4 had been stolen from the reporter gaged in a strike on and after December 20, and had not been recovered 1979, caused by our unfair labor practices, Before any action could be taken on this development, whole for any losses they may have suffered as on September 2, the Union filed an additional charge in a result of our unlawful discrimination, plus in- Case 24-CA-4381 against Respondent alleging further terest. violations of the Act, some of which allegedly arose as a WE WILL remove from the files of Felix result of the appearance of a witness at this hearing. The Ramos all records of disciplinary actions taken charge in Case 2CA-4381 was amended on September on January 26, July 2, and September 12 and 16, 1980, and, on October 6, the said Regional Director 15, 1980. 'The Charging Party herein was represented by Attorneys Leonardo WE WILL, upon request, bargain with the Llequis and Jorge Farinacci. Attorney Farinacci appeared as counsel for Asociacion de Empleados del Casino del Holi- the Charging Party on November 12. 1980. However, Attorney Llequis originally appeared as counsel for the Charging Party and there is no day Inn de Isla Verde as the representative of record of his withdrawal as counsel. employees in the following appropriate unit:' The name of the Employer was changed at the hearing This is the correct name. All croupier employees employed at our Respondent herein was represented by Attorneys Francisco J. Ramos-Acosta and Rafael Buscaglia. Attorney Buscaglia appeared only hotel, exclusive of all other employees, as the signatory to the post-hearing brief filed on behalf of Respondent office clerical employees, guards and all su- and as signatory on behalf of Respondent to a post-hearing motion. At- torney Ramos-Acosta originally appeared as counsel for Respondent and there is no withdrawal of his appearance in the record. HOTEL HOLIDAY INN DE ISLA VERDE 497 the National Labor Relations Board found that we pervisors as defined in Section 2(11) of the have violated the National Labor Relations Act, as Act. amended, and has ordered us to post this notice. WE WILL NOT unilaterally discontinue ourI VERD HOTEL TOR A Christmas bonus and WE WILL NOT refuse to D H bargain about that bonus. WE WILL NOT threaten or discharge unfair DECISION labor practice strikers who are on strike be- cause of our unfair labor practices. STATEMENT OF THE CASE WE WILL NOT deny unpaid leave, issue writ- GEORGE F. MCINERNY, Administrative Law Judge: ten reprimands to, change shifts or days off, or This matter began with the filing of a charge in Case 24- deny the right to swap shifts of our employees CA-4269 on January 28, 1980, by Asociacion de Em- because they engaged in union or protected pleados del Casino del Holiday Inn de Isla Verde, herein activities, or filed charges or gave testimony ref er r ed t o as t h e U n i o n o r t h e Charging Party.' T h e under the National Labor Relations Act. charge alleged that Isla Verde Hotel Corporation, d/b/a Hotel Holiday Inn de Isla VerdeA herein referred to as WE WILL NOT discharge or refuse to rein- Respondent,' the hotel, or the casino, had refused to pay state our employees or revoke condonations of a Christmas bonus, had refused to bargain with the their acts because they engaged in union or Union, and had discharged 16 employees, all alleged to concerted activities, or filed charges or gave be unfair labor practices in violation of Section 8(a)(l), testimony under the National Labor Relations (3), and (5) of the National Labor Relations Act, as Act. amended, 29 U.S.C. §151 et seq., herein referred to as the WE, WILL NT require our employees.to sign Act. The charge was amended on February 1, 1980, and WE WILL NOT require our employees to sign on March 20, 1980, the Regional Director for Region 24 waivers of statutory rights in order to obtain of the National Labor Relations Board issued a com- reinstatement. plaint alleging violations of Section 8(a)(l), (3), and (5) WE WILL NOT in any other manner interfere of the Act. Respondent duly filed an answer, denying the with, coerce, or restrain our employees in the commission of any unfair labor practices. exercise of the rights guaranteed under the Na- Pursuant to notice accompanying the complaint, the tional Labor Relations Act. m at t er c am e on t o hearing b e fo r e m e in H at o R ey , WE ,, WILL offer to Jose Cres, Humberto Puerto Rico, on June 16, 1980. The hearing continued on WE WILL offer to Jose Crespo, Humberto June 17, 18, and 19, at which time counsel for Respond- Sanchez, Amaldo Delgado, Geraldo Rodri- ent, Ramos-Acosta, became ill, and, by agreement of all guez, and Felix Ramos immediate and full re- parties, the matter was continued to August 4, 1980. The instatement to their former jobs or, if those hearing proceeded on August 5, 6, and concluded on jobs no longer exist, to substantially equivalent August 7, 1980, again in Hato Rey, Puerto Rico. jobs without prejudice to their seniority or Thereafter, on September 2, 1980, I received notice other rights and privileges and WE WILL make f ro m t h e offici al reporter in this matter that certain tapes them, together with all employees who en- containing a portion of the testimony received at this gaged. in a strike on andafter December 20 „ hearing on August 4 had been stolen from the reporter gaged in a strike on and aftebr practic 20, and had not been recovered. 1979, caused by our unfair labor practices, Before any action could be taken on this development, whole for any losses they may have suffered as on September 2, the Union filed an additional charge in a result of our unlawful discrimination, plus in- Case 24-CA-4381 against Respondent alleging further terest. violations of the Act, some of which allegedly arose as a WE WILL remove from the files of Felix result of the appearance of a witness at this hearing. The Ramos all records of disciplinary actions taken charge in Case 24-CA-4381 was amended on September on January 26, July 2, and September 12 and 16, 19 80, a nd , o n O c t o b er 6, t h e said R egio na l D irec tor 15, 1980. The Charging Party herein was represented by Attorneys Leonardo WE WILL, Upon request, bargain with the Llequis and Jorge Farinacci. Attorney Farinacci appeared as counsel for Asociacion de Empleados del Casino del Holi- t h e Charging Party on November 12, 1980. However, Attorney Llequis originally appeared as counsel for the Charging Party and there is no day Inn de Isla Verde as the representative of record of his withdrawal as counsel. employees in the following appropriate Unit: I T h e name o f t h e Employer was changed at the hearing This is the correct name. All Croupier employees employed at our IRespondent herein was represented by Attorneys Francisco J. Ramos-Acosta and Rafael Buscaglia. Attorney Buscaglia appeared only hotel, exclusive of all Other employees, as the signatory to the post-hearing brief filed on behalf of Respondent Office Clerical employees, guards and all su- and as signatory on behalf of Respondent to a post-hearing motion. At- torney Ramos-Acosta originally appeared as counsel for Respondent and there is no withdrawal of his appearance in the record. HOTEL HOLIDAY INN DE ISLA VERDE 497 the National Labor Relations Board found that we pervisors as defined in Section 2(11) of the have violated the National Labor Relations Act, as Act. amended, and has ordered us to post this notice. WE WILL NOT unilaterally discontinue ourI VERD HOTEL TOR A Christmas bonus and WE WILL NOT refuse to D H bargain about that bonus. WE WILL NOT threaten or discharge unfair DECISION labor practice strikers who are on strike be- cause of our unfair labor practices. STATEMENT OF THE CASE WE WILL NOT deny unpaid leave, issue writ- GEORGE F. MCINERNY, Administrative Law Judge: ten reprimands to, change shifts or days off, or This matter began with the filing of a charge in Case 24- deny the right to swap shifts of our employees CA-4269 on January 28, 1980, by Asociacion de Em- because they engaged in union or protected pleados del Casino del Holiday Inn de Isla Verde, herein activities, or filed charges or gave testimony ref er r ed t o as t h e U n i o n o r t h e Charging Party. The under the National Labor Relations Act. charge alleged that Isla Verde Hotel Corporation, d/b/a Hotel Holiday Inn de Isla VerdeA herein referred to as WE WILL NOT discharge or refuse to rein- Respondent,' the hotel, or the casino, had refused to pay state our employees or revoke condonations of a Christmas bonus, had refused to bargain with the their acts because they engaged in union or Union, and had discharged 16 employees, all alleged to concerted activities, or filed charges or gave be unfair labor practices in violation of Section 8(a)(l), testimony under the National Labor Relations (3), and (5) of the National Labor Relations Act, as Act. amended, 29 U.S.C. §151 et seq., herein referred to as the WE, WILL NT require our employees.to sign Act. The charge was amended on February 1, 1980, and WE WILL NOT require our employees to sign on March 20, 1980, the Regional Director for Region 24 waivers of statutory rights in order to obtain of the National Labor Relations Board issued a com- reinstatement. plaint alleging violations of Section 8(a)(l), (3), and (5) WE WILL NOT in any other manner interfere of the Act. Respondent duly filed an answer, denying the with, coerce, or restrain our employees in the commission of any unfair labor practices. exercise of the rights guaranteed under the Na- Pursuant to notice accompanying the complaint, the tional Labor Relations Act. m at t er c am e on t o hearing b e fo r e m e in H at o R ey , WE ,, WILL offer to Jose Cres, Humberto Puerto Rico, on June 16, 1980. The hearing continued on WE WILL offer to Jose Crespo, Humberto June 17, 18, and 19, at which time counsel for Respond- Sanchez, Amaldo Delgado, Geraldo Rodri- ent, Ramos-Acosta, became ill, and, by agreement of all guez, and Felix Ramos immediate and full re- parties, the matter was continued to August 4, 1980. The instatement to their former jobs or, if those hearing proceeded on August 5, 6, and concluded on jobs no longer exist, to substantially equivalent August 7, 1980, again in Hato Rey, Puerto Rico. jobs without prejudice to their seniority or Thereafter, on September 2, 1980, I received notice other rights and privileges and WE WILL make f ro m t h e offici al reporter in this matter that certain tapes them, together with all employees who en- containing a portion of the testimony received at this gaged. in a strike on andafter December 20 „ hearing on August 4 had been stolen from the reporter gaged in a strike on and aftebr practic 20, and had not been recovered. 1979, caused by our unfair labor practices, Before any action could be taken on this development, whole for any losses they may have suffered as on September 2, the Union filed an additional charge in a result of our unlawful discrimination, plus in- Case 24-CA-4381 against Respondent alleging further terest. violations of the Act, some of which allegedly arose as a WE WILL remove from the files of Felix result of the appearance of a witness at this hearing. The Ramos all records of disciplinary actions taken charge in Case 24-CA-4381 was amended on September on January 26, July 2, and September 12 and 16, 19 80, a nd , o n O c t o b er 6, t h e said R egio na l D irec tor 15, 1980. The Charging Party herein was represented by Attorneys Leonardo WE WILL, Upon request, bargain with the Llequis and Jorge Farinacci. Attorney Farinacci appeared as counsel for Asociacion de Empleados del Casino del Holi- t h e Charging Party on November 12, 1980. However, Attorney Llequis originally appeared as counsel for the Charging Party and there is no day Inn de Isla Verde as the representative of record of his withdrawal as counsel. employees in the following appropriate Unit: I T h e name o f t h e Employer was changed at the hearing This is the correct name. All Croupier employees employed at our IRespondent herein was represented by Attorneys Francisco J. Ramos-Acosta and Rafael Buscaglia. Attorney Buscaglia appeared only hotel, exclusive of all Other employees, as the signatory to the post-hearing brief filed on behalf of Respondent Office Clerical employees, guards and all su- and as signatory on behalf of Respondent to a post-hearing motion. At- torney Ramos-Acosta originally appeared as counsel for Respondent and there is no withdrawal of his appearance in the record. HOTEL HOLIDAY INN DE ISLA VERDE 497 the National Labor Relations Board found that we pervisors as defined in Section 2(11) of the have violated the National Labor Relations Act, as Act. amended, and has ordered us to post this notice. WE WILL NOT unilaterally discontinue ourI VERD HOTEL TOR A Christmas bonus and WE WILL NOT refuse to D H bargain about that bonus. WE WILL NOT threaten or discharge unfair DECISION labor practice strikers who are on strike be- cause of our unfair labor practices. STATEMENT OF THE CASE WE WILL NOT deny unpaid leave, issue writ- GEORGE F. MCINERNY, Administrative Law Judge: ten reprimands to, change shifts or days off, or This matter began with the filing of a charge in Case 24- deny the right to swap shifts of our employees CA-4269 on January 28, 1980, by Asociacion de Em- because they engaged in union or protected pleados del Casino del Holiday Inn de Isla Verde, herein activities, or filed charges or gave testimony ref er r ed t o as t h e U n i o n o r t h e Charging Party. The under the National Labor Relations Act. charge alleged that Isla Verde Hotel Corporation, d/b/a Hotel Holiday Inn de Isla VerdeA herein referred to as WE WILL NOT discharge or refuse to rein- Respondent,' the hotel, or the casino, had refused to pay state our employees or revoke condonations of a Christmas bonus, had refused to bargain with the their acts because they engaged in union or Union, and had discharged 16 employees, all alleged to concerted activities, or filed charges or gave be unfair labor practices in violation of Section 8(a)(l), testimony under the National Labor Relations (3), and (5) of the National Labor Relations Act, as Act. amended, 29 U.S.C. §151 et seq., herein referred to as the WE, WILL NT require our employees.to sign Act. The charge was amended on February 1, 1980, and WE WILL NOT require our employees to sign on March 20, 1980, the Regional Director for Region 24 waivers of statutory rights in order to obtain of the National Labor Relations Board issued a com- reinstatement. plaint alleging violations of Section 8(a)(l), (3), and (5) WE WILL NOT in any other manner interfere of the Act. Respondent duly filed an answer, denying the with, coerce, or restrain our employees in the commission of any unfair labor practices. exercise of the rights guaranteed under the Na- Pursuant to notice accompanying the complaint, the tional Labor Relations Act. m at t er c am e on t o hearing b e fo r e m e in H at o R ey , WE ,, WILL offer to Jose Cres, Humberto Puerto Rico, on June 16, 1980. The hearing continued on WE WILL offer to Jose Crespo, Humberto June 17, 18, and 19, at which time counsel for Respond- Sanchez, Amaldo Delgado, Geraldo Rodri- ent, Ramos-Acosta, became ill, and, by agreement of all guez, and Felix Ramos immediate and full re- parties, the matter was continued to August 4, 1980. The instatement to their former jobs or, if those hearing proceeded on August 5, 6, and concluded on jobs no longer exist, to substantially equivalent August 7, 1980, again in Hato Rey, Puerto Rico. jobs without prejudice to their seniority or Thereafter, on September 2, 1980, I received notice other rights and privileges and WE WILL make f ro m t h e offici al reporter in this matter that certain tapes them, together with all employees who en- containing a portion of the testimony received at this gaged. in a strike on andafter December 20 „ hearing on August 4 had been stolen from the reporter gaged in a strike on and aftebr practic 20, and had not been recovered. 1979, caused by our unfair labor practices, Before any action could be taken on this development, whole for any losses they may have suffered as on September 2, the Union filed an additional charge in a result of our unlawful discrimination, plus in- Case 24-CA-4381 against Respondent alleging further terest. violations of the Act, some of which allegedly arose as a WE WILL remove from the files of Felix result of the appearance of a witness at this hearing. The Ramos all records of disciplinary actions taken charge in Case 24-CA-4381 was amended on September on January 26, July 2, and September 12 and 16, 19 80, a nd , o n O c t o b er 6, t h e said R egio na l D irec tor 15, 1980. The Charging Party herein was represented by Attorneys Leonardo WE WILL, Upon request, bargain with the Llequis and Jorge Farinacci. Attorney Farinacci appeared as counsel for Asociacion de Empleados del Casino del Holi- t h e Charging Party on November 12, 1980. However, Attorney Llequis originally appeared as counsel for the Charging Party and there is no day Inn de Isla Verde as the representative of record of his withdrawal as counsel. employees in the following appropriate Unit: I T h e name o f t h e Employer was changed at the hearing This is the correct name. All Croupier employees employed at our IRespondent herein was represented by Attorneys Francisco J. Ramos-Acosta and Rafael Buscaglia. Attorney Buscaglia appeared only hotel, exclusive of all Other employees, as the signatory to the post-hearing brief filed on behalf of Respondent Office Clerical employees, guards and all su- and as signatory on behalf of Respondent to a post-hearing motion. At- torney Ramos-Acosta originally appeared as counsel for Respondent and there is no withdrawal of his appearance in the record. 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD issued a complaint in Case 24-CA-4381, alleging that III. THE ALLEGED UNFAIR LABOR PRACTICES Respondent had violated Section 8(a)(1), (3), and (4) of the Act. Respondent filed an answer to this complaint A. Background to the Strike again denying the commission of any unfair labor prac- This case concerns only the relationships between Re- tices. spondent and those persons employed as croupiers in the On October 14, 1980, counsel for the General Counsel casino operated as a part of the Holiday Inn at Isla in Case 24-CA-4269 filed a motion with me to reopen Verde. There is no dispute that the appropriate bargain- the record in Case 24-CA-4269 to reconstruct the miss- ing unit is, as described in the complaints herein: All ing testimony, and to consolidate that case with Case 24- croupier employees of Respondent, employed at its CA-4381. This was agreed to by counsel for Respond- hotel, exclusive of all other employees, office clerical ent, and on October 20, 1980, I ordered that the record employees, guards and all supervisors as defined in Sec- in Case 24-CA-4269 be reopened to receive the testimo- tion 2(11) of the Act. Croupiers are the employees who ny which was lost, that Case 24-CA-4269 be consoli- actually run the three games offered by the casino: dice, dated with Case 24-CA-4381, and that the consolidated roulette, and blackjack. The casino itself is modest in size cases be heard beginning on November 10, 1980. The compared to those in Atlantic City or Las Vegas, con- hearing proceeded in Hato Rey and Isla Verde, Puerto taining 3 roulette tables, 2 dice tables, 10 blackjack Rico, on November 10, 11, and 12, 1980. tables, and an unspecified number of slot machines. Throughout this extended hearing, all parties had the Croupiers must, of course, be able to handle at least opportunity to present testimony and documentary evi- one of these games, and the more skilled and experienced dence, to examine and cross-examine witnesses, and to can run two, or all three games. While the exact ratio of argue orally. Following the close of the hearing, briefs supervisors to rank-and-file employees is not defined in were filed by the General Counsel and Respondent. the record, it is evident that the ratio is very high, at These have been carefully considered. 4 slow times as high as one supervisor for each croupier. Based upon the entire record in this case, including my In addition to supervision by Respondent, the games are observation of the witnesses, and their demeanor, I make also closely watched by the Government of Puerto Rico. the following: At all times there is at least one inspector from the Com- monwealth Department of Tourism present in the casino. FINDINGS OF FACT Early in 1977 the croupiers organized themselves into an association, which is the Union in this case. Respond- I. THE BUSINESS OF RESPONDENT ent voluntarily recognized the Union as the representa- tive of the croupiers and the parties negotiated a collec- Isla Verde Hotel Corporation is a corporation orga- tive-bargaining agreement. nized under and existing by virtue of the laws of the areement between Resndent and the Union Commonwealth of Puerto Rico. At all times it has done was g the Upo business as Hotel Holiday Inn de Isla Verde, and main- ee ted by agreements dated November 8, 1978, and mented by agreements dated November 8, 1978, and tains its principal office and place of business in the city March 10, 1979. The documents appear unsophisticated, of Carolina, Puerto Rico, where it is engaged in the op- but upon analysis it is clear that the substantive content eration of a hotel and gambling casino. During the year covers the basic areas of wages, hours of work, and prior to the issuance of the complaints herein, which other conditions of employment. 5 There is a grievance period is representative of its annual operations, Re- procedure culminating in final and binding arbitration, spondent derived gross revenues of over $500,000. In conditioned, however, on the agreement of both parties that same period Respondent purchased and caused to be to the arbitration portion of the procedure. The contract transported and delivered to its Carolina, Puerto Rico, lacks a no-strike clause, although in general terms the location foodstuffs, beverages, and other goods and ma- Union agreed to be bound by all management rules, and terials valued in excess of $50,000 directly from points employees were bound by the terms of the November 8, located outside of the Commonwealth of Puerto Rico. 1978, and the March 10, 1979, supplements "not, under The complaints allege, the answers admit, and I find that any circumstances, abandon the table" and "not abandon Respondent is an employer engaged in commerce within work or the table of his own volition, without having the meaning of Section 2(2), (6), and (7) of the Act. been relieved or without being authorized by an offi- cial." (November 8, 1978 supplement, rules 9 and 16.) ii. THE LABOR ORGANIZATION INVOLVED Respondent under the March 10, 1979, supplement was empowered to suspend or discharge any employee for The complaints allege, the answers admit, and I find "Abandonment, without just cause, of the table where that Asociacion de Empleados del Casino del Holiday work is being performed or without prior permission Inn de Isla Verde is a labor organization within the from the immediate superintendent" 6 or for "refusal to meaning of Section 2(5) of the Act. 5 There was some question about parts of the agreement setting out a seniority list, and dealing with internal union matters, but even those parts were accepted by management. It was apparent that the parties 'On December 22, 1980, all parties filed a motion to include in the considered that this group of documents was the collective-bargaining record a stipulation of fact entered into on August 4, 1980. The motion is agreement between them, and I so find. allowed. Identified in this supplement as Luis Santiago Frills. 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD issued a complaint in Case 24-CA-4381, alleging that II. THE ALLEGED UNFAIR LABOR PRACTICES Respondent had violated Section 8(a)(l), (3), and (4) of the Act. Respondent filed an answer to this complaint A. Background to the Strike again denying the commission of any unfair labor prac- This case concerns only the relationships between Re- tic e s . spondent and those persons employed as croupiers in the On October 14, 1980, counsel for the General Counsel casino operated as a part of the Holiday Inn at Isla in Case 24-CA-4269 filed a motion with me to reopen Verde. There is no dispute that the appropriate bargain- the record in Case 24-CA-4269 to reconstruct the miss- ing unit is, as described in the complaints herein: All ing testimony, and to consolidate that case with Case 24- croupier employees of Respondent, employed at its CA-4381. This was agreed to by counsel for Respond- hotel, exclusive of all other employees, office clerical ent, and on October 20, 1980, I ordered that the record employees, guards and all supervisors as defined in Sec- in Case 24-CA-4269 be reopened to receive the testimo- tion 2(11) of the Act. Croupiers are the employees who ny which was lost, that Case 24-CA-4269 be consoli- actually run the three games offered by the casino: dice, dated with Case 24-CA-4381, and that the consolidated roulette, and blackjack. The casino itself is modest in size cases be heard beginning on November 10, 1980. The compared to those in Atlantic City or Las Vegas, con- hearing proceeded in Hato Rey and Isla Verde, Puerto taining 3 roulette tables, 2 dice tables, 10 blackjack Rico, on November 10, 11, and 12, 1980. tables, and an unspecified number of slot machines. Throughout this extended hearing, all parties had the Croupiers must, of course, be able to handle at least opportunity to present testimony and documentary evi- one of these games, and the more skilled and experienced dence, to examine and cross-examine witnesses, and to can run two, or all three games. While the exact ratio of argue orally. Following the close of the hearing, briefs supervisors to rank-and-file employees is not defined in were filed by the General Counsel and Respondent. the record, it is evident that the ratio is very high, at These have been carefully considered. 4 s lo w ti m e s as high a s o n e supervisor for each croupier. Based upon the entire record in this case, including my I n addition to supervision by Respondent, the games are observation of the witnesses, and their demeanor, I make a ls o c l o se ly watched by the Government of Puerto Rico. the following: A t a ll tim e s the r e is a t le a s t o n e inspector from the Com- monwealth Department of Tourism present in the casino. FINDINGS OF FACT Early in 1977 the croupiers organized themselves into an association, which is the Union in this case. Respond- 1. THE BUSINESS OF RESPONDENT ent voluntarily recognized the Union as the representa- Isla, Verde Hotel Corporation is a corporation orga- tive of the croupiers and the parties negotiated a collec- Isia Verde Hotel Corporation is a corporation orga- tiv-bargaining agreement. nized under and existing by virtue of the laws of the t agreement . Commonwealth of Puerto Rico. At all times it has done Ti a b R a th Union busiessas ote HoldayInnde sla erd, ad min- was executed originally on May 14, 1977, then supple- business as Hotel Holiday Inn de Isa Verde, and main- mented by agreements dated November 8, 1978, and tains its principal office and place of business in the city March 10, 1979. The documents appear unsophisticated, of Carolina, Puerto Rico, where it is engaged in the op- but upon analysis it is clear that the substantive content eration of a hotel and gambling casino. During the year covers the basic areas of wages, hours of work, and prior to the issuance of the complaints herein, which other conditions of employment. 5 There is a grievance period is representative of its annual operations, Re- procedure culminating in final and binding arbitration, spondent derived gross revenues of over $500,000. In conditioned, however, on the agreement of both parties that same period Respondent purchased and caused to be to the arbitration portion of the procedure. The contract transported and delivered to its Carolina, Puerto Rico, lacks a no-strike clause, although in general terms the location foodstuffs, beverages, and other goods and ma- Union agreed to be bound by all management rules, and terials valued in excess of $50,000 directly from points employees were bound by the terms of the November 8, located outside of the Commonwealth of Puerto Rico. 1978, and the March 10, 1979, supplements "not, under The complaints allege, the answers admit, and I find that any circumstances, abandon the table" and "not abandon Respondent is an employer engaged in commerce within work or the table of his own volition, without having the meaning of Section 2(2), (6), and (7) of the Act. b e e n relieved or without being authorized by an offi- cial." (November 8, 1978 supplement, rules 9 and 16.) II. THE LABOR ORGANIZATION INVOLVED Respondent under the March 10, 1979, supplement was empowered to suspend or discharge any employee for The complaints allege, the answers admit, and I find "Abandonment, without just cause, of the table where that Asociacion de Empleados del Casino del Holiday work is being performed or without prior permission Inn de Isla Verde is a labor organization within the from the immediate superintendent"' or for "refusal to meaning of Section 2(5) of the Act. I There was some question about parts of the agreement setting out a seniority list, and dealing with internal union matters, but even those parts were accepted by management. It was apparent that the parties On December 22, 1980, all parties filed a motion to include in the considered that this group of documents was the collective-bargaining record a stipulation of fact entered into on August 4, 1980. The motion is agreement between them, and I so find. allowed. Identified in this supplement as Luis Santiago Frills. 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD issued a complaint in Case 24-CA-4381, alleging that II. THE ALLEGED UNFAIR LABOR PRACTICES Respondent had violated Section 8(a)(l), (3), and (4) of the Act. Respondent filed an answer to this complaint A. Background to the Strike again denying the commission of any unfair labor prac- This case concerns only the relationships between Re- tic e s . spondent and those persons employed as croupiers in the On October 14, 1980, counsel for the General Counsel casino operated as a part of the Holiday Inn at Isla in Case 24-CA-4269 filed a motion with me to reopen Verde. There is no dispute that the appropriate bargain- the record in Case 24-CA-4269 to reconstruct the miss- ing unit is, as described in the complaints herein: All ing testimony, and to consolidate that case with Case 24- croupier employees of Respondent, employed at its CA-4381. This was agreed to by counsel for Respond- hotel, exclusive of all other employees, office clerical ent, and on October 20, 1980, I ordered that the record employees, guards and all supervisors as defined in Sec- in Case 24-CA-4269 be reopened to receive the testimo- tion 2(11) of the Act. Croupiers are the employees who ny which was lost, that Case 24-CA-4269 be consoli- actually run the three games offered by the casino: dice, dated with Case 24-CA-4381, and that the consolidated roulette, and blackjack. The casino itself is modest in size cases be heard beginning on November 10, 1980. The compared to those in Atlantic City or Las Vegas, con- hearing proceeded in Hato Rey and Isla Verde, Puerto taining 3 roulette tables, 2 dice tables, 10 blackjack Rico, on November 10, 11, and 12, 1980. tables, and an unspecified number of slot machines. Throughout this extended hearing, all parties had the Croupiers must, of course, be able to handle at least opportunity to present testimony and documentary evi- one of these games, and the more skilled and experienced dence, to examine and cross-examine witnesses, and to can run two, or all three games. While the exact ratio of argue orally. Following the close of the hearing, briefs supervisors to rank-and-file employees is not defined in were filed by the General Counsel and Respondent. the record, it is evident that the ratio is very high, at These have been carefully considered. 4 s lo w times as high as one supervisor for each croupier. Based upon the entire record in this case, including my I n addition to supervision by Respondent, the games are observation of the witnesses, and their demeanor, I make a ls o c l o se ly watched by the Government of Puerto Rico. the following: A t a ll tim e s the r e is a t le a s t o n e inspector from the Com- monwealth Department of Tourism present in the casino. FINDINGS OF FACT Early in 1977 the croupiers organized themselves into an association, which is the Union in this case. Respond- 1. THE BUSINESS OF RESPONDENT ent voluntarily recognized the Union as the representa- Isla, Verde Hotel Corporation is a corporation orga- tive of the croupiers and the parties negotiated a collec- Isia Verde Hotel Corporation is a corporation orga- tiv-bargaining agreement. nized under and existing by virtue of the laws of the t agreement . Commonwealth of Puerto Rico. At all times it has done Ti a b R a th Union busiessas ote HoldayInnde sla erd, ad min- was executed originally on May 14, 1977, then supple- business as Hotel Holiday Inn de Isa Verde, and main- mented by agreements dated November 8, 1978, and tains its principal office and place of business in the city March 10, 1979. The documents appear unsophisticated, of Carolina, Puerto Rico, where it is engaged in the op- but upon analysis it is clear that the substantive content eration of a hotel and gambling casino. During the year covers the basic areas of wages, hours of work, and prior to the issuance of the complaints herein, which other conditions of employment. 5 There is a grievance period is representative of its annual operations, Re- procedure culminating in final and binding arbitration, spondent derived gross revenues of over $500,000. In conditioned, however, on the agreement of both parties that same period Respondent purchased and caused to be to the arbitration portion of the procedure. The contract transported and delivered to its Carolina, Puerto Rico, lacks a no-strike clause, although in general terms the location foodstuffs, beverages, and other goods and ma- Union agreed to be bound by all management rules, and terials valued in excess of $50,000 directly from points employees were bound by the terms of the November 8, located outside of the Commonwealth of Puerto Rico. 1978, and the March 10, 1979, supplements "not, under The complaints allege, the answers admit, and I find that any circumstances, abandon the table" and "not abandon Respondent is an employer engaged in commerce within work or the table of his own volition, without having the meaning of Section 2(2), (6), and (7) of the Act. b e e n relieved or without being authorized by an offi- cial." (November 8, 1978 supplement, rules 9 and 16.) II. THE LABOR ORGANIZATION INVOLVED Respondent under the March 10, 1979, supplement was empowered to suspend or discharge any employee for The complaints allege, the answers admit, and I find "Abandonment, without just cause, of the table where that Asociacion de Empleados del Casino del Holiday work is being performed or without prior permission Inn de Isla Verde is a labor organization within the from the immediate superintendent"' or for "refusal to meaning of Section 2(5) of the Act. I There was some question about parts of the agreement setting out a seniority list, and dealing with internal union matters, but even those parts were accepted by management. It was apparent that the parties On December 22, 1980, all parties filed a motion to include in the considered that this group of documents was the collective-bargaining record a stipulation of fact entered into on August 4, 1980. The motion is agreement between them, and I so find. allowed. Identified in this supplement as Luis Santiago Frills. 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD issued a complaint in Case 24-CA-4381, alleging that II. THE ALLEGED UNFAIR LABOR PRACTICES Respondent had violated Section 8(a)(l), (3), and (4) of the Act. Respondent filed an answer to this complaint A. Background to the Strike again denying the commission of any unfair labor prac- This case concerns only the relationships between Re- tic e s . spondent and those persons employed as croupiers in the On October 14, 1980, counsel for the General Counsel casino operated as a part of the Holiday Inn at Isla in Case 24-CA-4269 filed a motion with me to reopen Verde. There is no dispute that the appropriate bargain- the record in Case 24-CA-4269 to reconstruct the miss- ing unit is, as described in the complaints herein: All ing testimony, and to consolidate that case with Case 24- croupier employees of Respondent, employed at its CA-4381. This was agreed to by counsel for Respond- hotel, exclusive of all other employees, office clerical ent, and on October 20, 1980, I ordered that the record employees, guards and all supervisors as defined in Sec- in Case 24-CA-4269 be reopened to receive the testimo- tion 2(11) of the Act. Croupiers are the employees who ny which was lost, that Case 24-CA-4269 be consoli- actually run the three games offered by the casino: dice, dated with Case 24-CA-4381, and that the consolidated roulette, and blackjack. The casino itself is modest in size cases be heard beginning on November 10, 1980. The compared to those in Atlantic City or Las Vegas, con- hearing proceeded in Hato Rey and Isla Verde, Puerto taining 3 roulette tables, 2 dice tables, 10 blackjack Rico, on November 10, 11, and 12, 1980. tables, and an unspecified number of slot machines. Throughout this extended hearing, all parties had the Croupiers must, of course, be able to handle at least opportunity to present testimony and documentary evi- one of these games, and the more skilled and experienced dence, to examine and cross-examine witnesses, and to can run two, or all three games. While the exact ratio of argue orally. Following the close of the hearing, briefs supervisors to rank-and-file employees is not defined in were filed by the General Counsel and Respondent. the record, it is evident that the ratio is very high, at These have been carefully considered. 4 s lo w times as high as one supervisor for each croupier. Based upon the entire record in this case, including my I n addition to supervision by Respondent, the games are observation of the witnesses, and their demeanor, I make a ls o c l o se ly watched by the Government of Puerto Rico. the following: A t a ll tim e s the r e is a t le a s t o n e inspector from the Com- monwealth Department of Tourism present in the casino. FINDINGS OF FACT Early in 1977 the croupiers organized themselves into an association, which is the Union in this case. Respond- 1. THE BUSINESS OF RESPONDENT ent voluntarily recognized the Union as the representa- Isla, Verde Hotel Corporation is a corporation orga- tive of the croupiers and the parties negotiated a collec- Isia Verde Hotel Corporation is a corporation orga- tiv-bargaining agreement. nized under and existing by virtue of the laws of the t agreement . Commonwealth of Puerto Rico. At all times it has done Ti a b R a th Union busiessas ote HoldayInnde sla erd, ad min- was executed originally on May 14, 1977, then supple- business as Hotel Holiday Inn de Isa Verde, and main- mented by agreements dated November 8, 1978, and tains its principal office and place of business in the city March 10, 1979. The documents appear unsophisticated, of Carolina, Puerto Rico, where it is engaged in the op- but upon analysis it is clear that the substantive content eration of a hotel and gambling casino. During the year covers the basic areas of wages, hours of work, and prior to the issuance of the complaints herein, which other conditions of employment. 5 There is a grievance period is representative of its annual operations, Re- procedure culminating in final and binding arbitration, spondent derived gross revenues of over $500,000. In conditioned, however, on the agreement of both parties that same period Respondent purchased and caused to be to the arbitration portion of the procedure. The contract transported and delivered to its Carolina, Puerto Rico, lacks a no-strike clause, although in general terms the location foodstuffs, beverages, and other goods and ma- Union agreed to be bound by all management rules, and terials valued in excess of $50,000 directly from points employees were bound by the terms of the November 8, located outside of the Commonwealth of Puerto Rico. 1978, and the March 10, 1979, supplements "not, under The complaints allege, the answers admit, and I find that any circumstances, abandon the table" and "not abandon Respondent is an employer engaged in commerce within work or the table of his own volition, without having the meaning of Section 2(2), (6), and (7) of the Act. b e e n relieved or without being authorized by an offi- cial." (November 8, 1978 supplement, rules 9 and 16.) II. THE LABOR ORGANIZATION INVOLVED Respondent under the March 10, 1979, supplement was empowered to suspend or discharge any employee for The complaints allege, the answers admit, and I find "Abandonment, without just cause, of the table where that Asociacion de Empleados del Casino del Holiday work is being performed or without prior permission Inn de Isla Verde is a labor organization within the from the immediate superintendent"' or for "refusal to meaning of Section 2(5) of the Act. I There was some question about parts of the agreement setting out a seniority list, and dealing with internal union matters, but even those parts were accepted by management. It was apparent that the parties On December 22, 1980, all parties filed a motion to include in the considered that this group of documents was the collective-bargaining record a stipulation of fact entered into on August 4, 1980. The motion is agreement between them, and I so find. allowed. Identified in this supplement as Luis Santiago Frills. HOTEL HOLIDAY INN DE ISLA VERDE 499 work at the assigned table or work shift." (March 10, party would be held, and steps were being taken to pay a 1979, supplement, rules 2(G) and (I).) Christmas bonus to all those entitled to receive a bonus. In the November 1978 supplement, the parties agreed Respondent did proceed with plans to pay the Christ- that "starting in April 1979 a work schedule with off mas bonus. Tosado testified that it was his intention to duty rotating days every three months will be prepared." pay the bonus at the Christmas party which was held at The purpose of this was an attempt to assure that week- another hotel on December 18. However, Tosado was end time off for employees in the casino's 7-day oper- informed by the hotel's general manager, David Maza ation would be equally shared, by rotating days off every San Miguel, that there was no money available on that 3 months. This sounds like a relatively simple procedure, date. Tosado informed several employees at the Christ- but in practice it did not work out that way. One of the mas party that the bonus would be paid on December 20 union officers during this period, Jose Crespo Nieves, 7 or 21.1 Other evidence shows that management intended testified that the Union tried on three separate occasions to give the bonus at 8:30 p.m., the time when the shifts during 1979, in April, August, and November, to work changed in the casino, on December 21. Carlos J. Luna, out schedules to implement this provision, but all three the hotel's personnel director, testified that Maza wanted proposed schedules were unacceptable to the casino to meet with the employees concurrently with the giving management. of the bonus to explain to them the hotel's economic After the second attempt to work out a mutually ac- problems. 12 ceptable schedule the Union filed a request with the However, on December 20, Respondent received Commonwealth Department of Labor for the appoint- notice from the Commonwealth Labor Relations Board ment of an arbitrator to enforce the contractual require- of the charge which had been filed on December 4. ment for rotating days. 8 This was the state of things on the afternoon of De- Sometime in November, the testimony is not clear cember 20. when, Crespo, who was then the president of the Union, together with Arnaldo Delgado Rodriguez, the general B. The Strike shop steward, met with the casino manager, Bienvenido Tosado Feliciano, to discuss proposed schedules worked Luna came into the casino between 1:30 and 2 p.m. on out by the Union. According to Crespo, the only witness December 20 and spoke to Miguel Barbosa Figueroa, the who testified about this meeting, Tosado rejected the Union's steward on the day shift. Luna and Barbosa gave schedule, became excited, and said he would not accept sharply different versions of this conversation. Accord- the schedule even if it were ordered by a court or the ing to Barbosa, Luna had with him a copy of the charge department of labor. At another point Crespo quoted from the Commonwealth Labor Relations Board. He Tosado as saying that he was not going to make the days showed Barbosa the document and asked if it had been rotational and that he was not going to do anything filed by the Union. Barbosa replied that it had, and that which was not for the benefit of the casino. the Union was going to take it "all the way." Luna then On December 4 Crespo, as president of the Union, said that Maza was angry and that he was not going to filed a charge against Respondent with the Puerto Rico give the employees the Christmas bonus. Labor Relations Board alleging a violation of the collec- Luna agreed with Barbosa on the time and place of tive-bargaining agreement since April because of the Em- the conversation, but testified that he had two documents ployer's failure to implement the rotating days schedule. with him, the charge and the request for arbitration, re- During December, the Union and management had ferred to above, which had been filed on November 9 other discussions over concerns of the employees with with another agency of the Commonwealth. Luna said regard to uniforms,' the annual Christmas party, and a that he told Barbosa the bonus would be distributed on Christmas bonus. '° With respect to the last issue, the evi- the next night at the shift change. Luna then said he dence shows that there is a law in the Commonwealth showed Barbosa the two cases, the arbitration request which requires the payment of a Christmas bonus to em- and the charge, and asked whether Barbosa knew of this ployees of employers who have enjoyed a profitable duplication. Barbosa replied that he would speak to the year. There is some evidence that Respondent did not Union's directors about the matters. make a profit in 1979, but that is really not at issue here. In view of what happened immediately after this con- Bonuses were paid to employees in 1977 and 1978. The versation Luna's version of the event is totally improb- discussions on these issues were apparently productive able and unbelievable. Barbosa's version is wholly in and in a letter dated December 6 management an- accord with his subsequent actions. Further, based on nounced that uniforms would be supplied, a Christmas my observation of his demeanor, I found Barbosa to be a completely credible witness. Luna, here and in his testi- 'Following the local custom I shall give the full name of each witness, mony on other aspects of these consolidated cases, ap- if the full name is given, and when it first appears. Afterwards I shall peared to me to be guarded and less than candid. Thus I refer to the witnesses by their patronyms. This was not filed until November 9, just before the third attempt to credit Barbosa's version of this conversation. work out a schedule. The matter did proceed to arbitration but since I did not consider the arbitrator's decision material to the issues here I re- "I found Tosado to be a credible witness. He was no longer employed jected the decision when offered as an exhibit, by the casino when he testified, and he had severed his other business · Croupiers were required to wear evening clothes while on duty. relations with Maza 10 The bonus would have amounted to about $200 for a person who " I had some problems with Luna's credibility, as noted infra, but I do had worked for the whole year, and proportionally less for those who not find this recital of Respondent's intentions to be inconsistent with had worked less than a full year. other facts in the record. HOTEL HOLIDAY INN DE ISLA VERDE 499 work at the assigned table or work shift." (March 10, party would be held, and steps were being taken to pay a 1979, supplement, rules 2(G) and (I).) Christmas bonus to all those entitled to receive a bonus. In the November 1978 supplement, the parties agreed Respondent did proceed with plans to pay the Christ- that "starting in April 1979 a work schedule with off mas bonus. Tosado testified that it was his intention to duty rotating days every three months will be prepared." pay the bonus at the Christmas party which was held at The purpose of this was an attempt to assure that week- another hotel on December 18. However, Tosado was end time off for employees in the casino's 7-day oper- informed by the hotel's general manager, David Maza ation would be equally shared, by rotating days off every San Miguel, that there was no money available on that 3 months. This sounds like a relatively simple procedure, date. Tosado informed several employees at the Christ- but in practice it did not work out that way. One of the mas party that the bonus would be paid on December 20 union officers during this period, Jose Crespo Nieves, 7 or 21." Other evidence shows that management intended testified that the Union tried on three separate occasions to give the bonus at 8:30 p.m., the time when the shifts during 1979, in April, August, and November, to work changed in the casino, on December 21. Carlos J. Luna, out schedules to implement this provision, but all three the hotel's personnel director, testified that Maza wanted proposed schedules were unacceptable to the casino to meet with the employees concurrently with the giving management. of the bonus to explain to them the hotel's economic After the second attempt to work out a mutually ac- problems. 12 ceptable schedule the Union filed a request with the However, on December 20, Respondent received Commonwealth Department of Labor for the appoint- notice from the Commonwealth Labor Relations Board ment of an arbitrator to enforce the contractual require- of the charge which had been filed on December 4. ment for rotating days.' This was the state of things on the afternoon of De- Sometime in November, the testimony is not clear cember 20. when, Crespo, who was then the president of the Union, together with Amaldo Delgado Rodriguez, the general B. The Strike shop steward, met with the casino manager, Bienvenido Tosado Feliciano, to discuss proposed schedules worked Luna came into the casino between 1:30 and 2 p.m. on out by the Union. According to Crespo, the only witness December 20 and spoke to Miguel Barbosa Figueroa, the who testified about this meeting, Tosado rejected the Union's steward on the day shift. Luna and Barbosa gave schedule, became excited, and said he would not accept sharply different versions of this conversation. Accord- the schedule even if it were ordered by a court or the ing to Barbosa, Luna had with him a copy of the charge department of labor. At another point Crespo quoted from the Commonwealth Labor Relations Board. He Tosado as saying that he was not going to make the days showed Barbosa the document and asked if it had been rotational and that he was not going to do anything filed by the Union. Barbosa replied that it had, and that which was not for the benefit of the casino. the Union was going to take it "all the way." Luna then On December 4 Crespo, as president of the Union, said that Maza was angry and that he was not going to filed a charge against Respondent with the Puerto Rico give the employees the Christmas bonus. Labor Relations Board alleging a violation of the collec- Luna agreed with Barbosa on the time and place of tive-bargaining agreement since April because of the Em- the conversation, but testified that he had two documents ployer's failure to implement the rotating days schedule. with him, the charge and the request for arbitration, re- During December, the Union and management had ferred to above, which had been filed on November 9 other discussions over concerns of the employees with with another agency of the Commonwealth. Luna said regard to uniforms,' the annual Christmas party, and a that he told Barbosa the bonus would be distributed on Christmas bonus. "With respect to the last issue, the evi- the next night at the shift change. Luna then said he dence shows that there is a law in the Commonwealth showed Barbosa the two cases, the arbitration request which requires the payment of a Christmas bonus to em- and the charge, and asked whether Barbosa knew of this ployees of employers who have enjoyed a profitable duplication. Barbosa replied that he would speak to the year. There is some evidence that Respondent did not Union's directors about the matters. make a profit in 1979, but that is really not at issue here. In view of what happened immediately after this con- Bonuses were paid to employees in 1977 and 1978. The versation Luna's version of the event is totally improb- discussions on these issues were apparently productive able and unbelievable. Barbosa's version is wholly in and in a letter dated December 6 management an- accord with his subsequent actions. Further, based on nounced that uniforms would be supplied, a Christmas my observation of his demeanor, I found Barbosa to be a completely credible witness. Luna, here and in his testi- 'Following the local custom I shall give the full name of each witness, mony On Other aspects of these consolidated cases, ap- if the full name is given, and when it first appears. Afterwards I shall peared to me to be guarded and less than candid. Thus I refer to the witnesses by their patronyms.cei absasvrino hi ovrain This was not filed until November 9, just before the third attempt to credit Barbosa's version of this conversation. work out a schedule. The matter did proceed to arbitration but since I did not consider the arbitrator's decision material to the issues here I re- "I found Tosado to be a credible witness. He was no longer employed jected the decision when offered as an exhibit,.by the casino when he testified, and he had severed his other business · Croupiers were required to wear evening clothes while on duty. relations with Maza 10 The bonus would have amounted to about $200 for a person who 11 had some problems with Luna's credibility, as noted infra, but I do had worked for the whole year, and proportionally less for those who not find this recital of Respondent's intentions to be inconsistent with had worked less than a full year. other facts in the record. HOTEL HOLIDAY INN DE ISLA VERDE 499 work at the assigned table or work shift." (March 10, party would be held, and steps were being taken to pay a 1979, supplement, rules 2(G) and (I).) Christmas bonus to all those entitled to receive a bonus. In the November 1978 supplement, the parties agreed Respondent did proceed with plans to pay the Christ- that "starting in April 1979 a work schedule with off mas bonus. Tosado testified that it was his intention to duty rotating days every three months will be prepared." pay the bonus at the Christmas party which was held at The purpose of this was an attempt to assure that week- another hotel on December 18. However, Tosado was end time off for employees in the casino's 7-day oper- informed by the hotel's general manager, David Maza ation would be equally shared, by rotating days off every San Miguel, that there was no money available on that 3 months. This sounds like a relatively simple procedure, date. Tosado informed several employees at the Christ- but in practice it did not work out that way. One of the mas party that the bonus would be paid on December 20 union officers during this period, Jose Crespo Nieves, 7 or 21." Other evidence shows that management intended testified that the Union tried on three separate occasions to give the bonus at 8:30 p.m., the time when the shifts during 1979, in April, August, and November, to work changed in the casino, on December 21. Carlos J. Luna, out schedules to implement this provision, but all three the hotel's personnel director, testified that Maza wanted proposed schedules were unacceptable to the casino to meet with the employees concurrently with the giving management. of the bonus to explain to them the hotel's economic After the second attempt to work out a mutually ac- problems. 12 ceptable schedule the Union filed a request with the However, on December 20, Respondent received Commonwealth Department of Labor for the appoint- notice from the Commonwealth Labor Relations Board ment of an arbitrator to enforce the contractual require- of the charge which had been filed on December 4. ment for rotating days.' This was the state of things on the afternoon of De- Sometime in November, the testimony is not clear cember 20. when, Crespo, who was then the president of the Union, together with Amaldo Delgado Rodriguez, the general B. The Strike shop steward, met with the casino manager, Bienvenido Tosado Feliciano, to discuss proposed schedules worked Luna came into the casino between 1:30 and 2 p.m. on out by the Union. According to Crespo, the only witness December 20 and spoke to Miguel Barbosa Figueroa, the who testified about this meeting, Tosado rejected the Union's steward on the day shift. Luna and Barbosa gave schedule, became excited, and said he would not accept sharply different versions of this conversation. Accord- the schedule even if it were ordered by a court or the ing to Barbosa, Luna had with him a copy of the charge department of labor. At another point Crespo quoted from the Commonwealth Labor Relations Board. He Tosado as saying that he was not going to make the days showed Barbosa the document and asked if it had been rotational and that he was not going to do anything filed by the Union. Barbosa replied that it had, and that which was not for the benefit of the casino. the Union was going to take it "all the way." Luna then On December 4 Crespo, as president of the Union, said that Maza was angry and that he was not going to filed a charge against Respondent with the Puerto Rico give the employees the Christmas bonus. Labor Relations Board alleging a violation of the collec- Luna agreed with Barbosa on the time and place of tive-bargaining agreement since April because of the Em- the conversation, but testified that he had two documents ployer's failure to implement the rotating days schedule. with him, the charge and the request for arbitration, re- During December, the Union and management had ferred to above, which had been filed on November 9 other discussions over concerns of the employees with with another agency of the Commonwealth. Luna said regard to uniforms,' the annual Christmas party, and a that he told Barbosa the bonus would be distributed on Christmas bonus. "With respect to the last issue, the evi- the next night at the shift change. Luna then said he dence shows that there is a law in the Commonwealth showed Barbosa the two cases, the arbitration request which requires the payment of a Christmas bonus to em- and the charge, and asked whether Barbosa knew of this ployees of employers who have enjoyed a profitable duplication. Barbosa replied that he would speak to the year. There is some evidence that Respondent did not Union's directors about the matters. make a profit in 1979, but that is really not at issue here. In view of what happened immediately after this con- Bonuses were paid to employees in 1977 and 1978. The versation Luna's version of the event is totally improb- discussions on these issues were apparently productive able and unbelievable. Barbosa's version is wholly in and in a letter dated December 6 management an- accord with his subsequent actions. Further, based on nounced that uniforms would be supplied, a Christmas my observation of his demeanor, I found Barbosa to be a completely credible witness. Luna, here and in his testi- 'Following the local custom I shall give the full name of each witness, mony On Other aspects of these consolidated cases, ap- if the full name is given, and when it first appears. Afterwards I shall peared to me to be guarded and less than candid. Thus I refer to the witnesses by their patronyms.cei absasvrino hi ovrain This was not filed until November 9, just before the third attempt to credit Barbosa's version of this conversation. work out a schedule. The matter did proceed to arbitration but since I did not consider the arbitrator's decision material to the issues here I re- "I found Tosado to be a credible witness. He was no longer employed jected the decision when offered as an exhibit,.by the casino when he testified, and he had severed his other business 'Croupiers were required to wear evening clothes while on duty. relations with Maza 10 The bonus would have amounted to about $200 for a person who 11 had some problems with Luna's credibility, as noted infra, but I do had worked for the whole year, and proportionally less for those who not find this recital of Respondent's intentions to be inconsistent with had worked less than a full year. other facts in the record. HOTEL HOLIDAY INN DE ISLA VERDE 499 work at the assigned table or work shift." (March 10, party would be held, and steps were being taken to pay a 1979, supplement, rules 2(G) and (I).) Christmas bonus to all those entitled to receive a bonus. In the November 1978 supplement, the parties agreed Respondent did proceed with plans to pay the Christ- that "starting in April 1979 a work schedule with off mas bonus. Tosado testified that it was his intention to duty rotating days every three months will be prepared." pay the bonus at the Christmas party which was held at The purpose of this was an attempt to assure that week- another hotel on December 18. However, Tosado was end time off for employees in the casino's 7-day oper- informed by the hotel's general manager, David Maza ation would be equally shared, by rotating days off every San Miguel, that there was no money available on that 3 months. This sounds like a relatively simple procedure, date. Tosado informed several employees at the Christ- but in practice it did not work out that way. One of the mas party that the bonus would be paid on December 20 union officers during this period, Jose Crespo Nieves, 7 or 21." Other evidence shows that management intended testified that the Union tried on three separate occasions to give the bonus at 8:30 p.m., the time when the shifts during 1979, in April, August, and November, to work changed in the casino, on December 21. Carlos J. Luna, out schedules to implement this provision, but all three the hotel's personnel director, testified that Maza wanted proposed schedules were unacceptable to the casino to meet with the employees concurrently with the giving management. of the bonus to explain to them the hotel's economic After the second attempt to work out a mutually ac- problems. 12 ceptable schedule the Union filed a request with the However, on December 20, Respondent received Commonwealth Department of Labor for the appoint- notice from the Commonwealth Labor Relations Board ment of an arbitrator to enforce the contractual require- of the charge which had been filed on December 4. ment for rotating days.' This was the state of things on the afternoon of De- Sometime in November, the testimony is not clear cember 20. when, Crespo, who was then the president of the Union, together with Amaldo Delgado Rodriguez, the general B. The Strike shop steward, met with the casino manager, Bienvenido Tosado Feliciano, to discuss proposed schedules worked Luna came into the casino between 1:30 and 2 p.m. on out by the Union. According to Crespo, the only witness December 20 and spoke to Miguel Barbosa Figueroa, the who testified about this meeting, Tosado rejected the Union's steward on the day shift. Luna and Barbosa gave schedule, became excited, and said he would not accept sharply different versions of this conversation. Accord- the schedule even if it were ordered by a court or the ing to Barbosa, Luna had with him a copy of the charge department of labor. At another point Crespo quoted from the Commonwealth Labor Relations Board. He Tosado as saying that he was not going to make the days showed Barbosa the document and asked if it had been rotational and that he was not going to do anything filed by the Union. Barbosa replied that it had, and that which was not for the benefit of the casino. the Union was going to take it "all the way." Luna then On December 4 Crespo, as president of the Union, said that Maza was angry and that he was not going to filed a charge against Respondent with the Puerto Rico give the employees the Christmas bonus. Labor Relations Board alleging a violation of the collec- Luna agreed with Barbosa on the time and place of tive-bargaining agreement since April because of the Em- the conversation, but testified that he had two documents ployer's failure to implement the rotating days schedule. with him, the charge and the request for arbitration, re- During December, the Union and management had ferred to above, which had been filed on November 9 other discussions over concerns of the employees with with another agency of the Commonwealth. Luna said regard to uniforms,' the annual Christmas party, and a that he told Barbosa the bonus would be distributed on Christmas bonus. "With respect to the last issue, the evi- the next night at the shift change. Luna then said he dence shows that there is a law in the Commonwealth showed Barbosa the two cases, the arbitration request which requires the payment of a Christmas bonus to em- and the charge, and asked whether Barbosa knew of this ployees of employers who have enjoyed a profitable duplication. Barbosa replied that he would speak to the year. There is some evidence that Respondent did not Union's directors about the matters. make a profit in 1979, but that is really not at issue here. In view of what happened immediately after this con- Bonuses were paid to employees in 1977 and 1978. The versation Luna's version of the event is totally improb- discussions on these issues were apparently productive able and unbelievable. Barbosa's version is wholly in and in a letter dated December 6 management an- accord with his subsequent actions. Further, based on nounced that uniforms would be supplied, a Christmas my observation of his demeanor, I found Barbosa to be a completely credible witness. Luna, here and in his testi- 'Following the local custom I shall give the full name of each witness, mony On Other aspects of these consolidated cases, ap- if the full name is given, and when it first appears. Afterwards I shall peared to me to be guarded and less than candid. Thus I refer to the witnesses by their patronyms.cei absasvrino hi ovrain This was not filed until November 9, just before the third attempt to credit Barbosa's version of this conversation. work out a schedule. The matter did proceed to arbitration but since I did not consider the arbitrator's decision material to the issues here I re- "I found Tosado to be a credible witness. He was no longer employed jected the decision when offered as an exhibit,.by the casino when he testified, and he had severed his other business 'Croupiers were required to wear evening clothes while on duty. relations with Maza 10 The bonus would have amounted to about $200 for a person who 11 had some problems with Luna's credibility, as noted infra, but I do had worked for the whole year, and proportionally less for those who not find this recital of Respondent's intentions to be inconsistent with had worked less than a full year. other facts in the record. 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As soon as Luna left the casino Barbosa called Delga- that they were not going to give the bonus that night. 16 do, the general shop steward and a night-shift employee, Tosado did tell Santiago that, if the employees did not at his home. 13 Delgado in his turn, contacted Crespo and strike, they would receive the bonus on the next day. Union Vice President Humberto Sanchez. These three However, he instructed him not to tell this to the em- drove immediately from their homes to the casino. On ployees. arriving there, they asked Assistant Manager Jose Al- Santiago then called Sanchez and Crespo into the varez if Barbosa could be relieved from duty to consult casino office and informed them that there was no on the matter. Alvarez agreed and the four union offi- Christmas bonus and that Tosado had nothing to discuss cials went to the hotel's main office in order to talk to with them. Maza. On hearing of their request, Maza came to the A th p S a C door of his office and told them he had no time to talk t ts point Sanc hez and Crespo left the office an to them, and that they should talk to the casino manager. proceeded into the casino. On the way Sanchez encoun- They returned to the casino and again spoke to Alvarez, tered Tosado and asked whether he was going to pay the since the manager, Tosado, was not there. Alvarez tried bonus or not. Tosado replied that he was not, emphasiz- to contact Tosado but could not, then told the employ- ing the point with an all-purpose, apparently untranslata- ees to wait for Tosado to come in. ble, Spanish epithet. Sanchez and Crespo then proceeded Around 2:30 or 3 p.m. Delgado testified that he, from table to table in the casino, instructing the employ- Crespo, and Sanchez had a conversation in the parking ees that the "casino is stopped," but not to abandon the lot of the hotel. 14 They decided that, if management did tables. 17 The union leaders were, obviously, trying to im- not give the bonus and refused to speak about it, they plement a sit-down strike in the casino. These aims were could stage a "hands down" stoppage. 5 thwarted by management, as Tosado gave orders that su- Crespo, Sanchez, and Delgado then waited for Tosado pervisors move in on the tables, relieve the employees, at the casino until about 6 o'clock, then went home to and order them to leave the casino. This order to leave eat and change their clothes before reporting back to was also conveyed to employees who were off duty in work at 8:30. There is no indication in the record that the croupiers' restroom. 1s There were no problems and the union officers told Alvarez what they were planning no incidents. The croupiers all left the casino and went to do, but Delgado did admit that they told other em- outside the hotel, where they established a picket line. ployees, and it is clear from Alvarez' own testimony that Although Respondent maintained in later communica- he was aware that strike action was a real possibility. In tions to the strikers, and in its answer to the complaint in fact Alvarez located Tosado some time before 8 o'clock Case 2CA4269 that the employees had abandoned and told him of the situation. Tosado told Alvarez to unguarded, there is hold the day-shift supervisors beyond the end of their e r y e is shift in order to cover the gambling tables in case of an o evidence in this record that any employee left his emergency. table unguarded, or that anyone left his table except by Tosado finally arrived at the casino about 10 that the order of a supervisor. Rafael Rossi Soto, a witness night. He spoke to Alvarez and Santiago, the assistant for Respondent, testified that Sanchez had told him to manager in general charge of personnel matters. Accord- leave the casino. Then he asked Tosado what he should ing to Tosado he learned from Alvarez and Santiago that do.' 9 Tosado replied that he should do what the shop the situation was unchanged. steward had instructed, that he alone could do nothing. At that point Tosado left the casino and went to see It would, indeed, be inconsistent with the Union's plan Maza. Tosado and Maza discussed the fact that the to stage a sit-down strike to abandon the tables, and any bonus had been promised, and also their impression that departures by employees from their tables was the result if they gave the bonus that night, under pressure, they of management's prompt response to the work stoppage. would be establishing an undesirable precedent. They Thus I cannot find that any employee willfully aban- agreed that in those circumstances they would no longer doned his table, and, further, I find that the attempt to have control of the casino. Thus Tosado and Maza de- stage a sit-down strike, whatever the intention of the cided that they would not give the bonus that night, but if the employees did not strike they would give the bonus the next day. With this decided, Tosado returned to the casino e Tosado explained that he used Santiago as an intermediary because the latter was named in the contract as the management representative around 10:30 p.m. and told Santiago to inform the Union responsible for dealing with the Union. " The only dissent to this evidence was the testimony of Rafael Rossi " I have relied on the undenied and mutually corroborative testimony Soto, who could have been mistaken about what Sanchez said to him. of Delgado, Sanchez, and Crespo for my findings on the events of the Carlos Emmanueli, a government inspector on duty that night, testified afternoon and early evening of December 20. that there were not many people in the casino that night, even though it " It is not clear whether this was before or after they met with Al- was at the beginning of the tourist season. Emmanueli stated that there varez. were three out of nine blackjack tables open, one out of three roulette " At the hearing the translation was, as stated, "hands down." Howev- tables, and one out of two dice tables. er, Delgado's affidavit, in evidence, translates the words paro de brazos "The evidence shows that the croupiers work, roughly, a schedule of caidos as a "sit-down strike." The latter translation of these words is cor- one hour at the tables and one-half hour off. Thus approximately one roborated by Simon and Schuster's International Dictionary, third of the employees on a given shift would be off duty at all times English/Spanish, Spanish/English, Simon and Schuster, New York, 1973, during their shift. There are some variations to this which are not materi- and Appleton's New Cuyas, Prentice-Hall, Inc., Englewood Cliffs, New al here. Jersey, 1972. Accordingly I find that the agreement was to hold a sit- " Rossi was a new employee who had not yet joined the Union and down strike at the casino, to force management to grant the bonus. felt no loyalty toward it. 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As soon as Luna left the casino Barbosa called Delga- that they were not going to give the bonus that night. 16 do, the general shop steward and a night-shift employee, Tosado did tell Santiago that, if the employees did not at his home. " Delgado in his turn, contacted Crespo and strike, they would receive the bonus on the next day. Union Vice President Humberto Sanchez. These three However, he instructed him not to tell this to the em- drove immediately from their homes to the casino. On ployees. arriving there, they asked Assistant Manager Jose Al- Santiago then called Sanchez and Crespo into the varez if Barbosa could be relieved from duty to consult casino office and informed them that there was no on the matter. Alvarez agreed and the four union offi- Christmas bonus and that Tosado had nothing to discuss cials went to the hotel's main office in order to talk to with them. Maza. On hearing of their request, Maza came to the At this point Sanchez and Crespo left the office and door of his office and told them he had no time to talk oceeded into the casino. On the way Sanchez encoun- to them, and that they should talk to the casino manager. r j i ii. * 1 They returned to the casino and again spoke to Alvarez, t er ed T o s ad o an d as k ed w h ethe r h e w as going t o pay t h e since the manager, Tosado, was not there. Alvarez tried b o n us o r n o t . T osad o repli ed t h a t h e w as n o t, emphasiz- to contact Tosado but could not, then told the employ- ing the Point with an all-purpose, apparently untranslata- ees to wait for Tosado to come in. b le , Spanish epithet. Sanchez and Crespo then proceeded Around 2:30 or 3 p.m. Delgado testified that he, from table to table in the casino, instructing the employ- Crespo, and Sanchez had a conversation in the parking ees that the "casino is stopped," but not to abandon the lot of the hotel. 14 They decided that, if management did tables. 17 The union leaders were, obviously, trying to im- not give the bonus and refused to speak about it, they plement a sit-down strike in the casino. These aims were could stage a "hands down" stoppage." thwarted by management, as Tosado gave orders that su- Crespo, Sanchez, and Delgado then waited for Tosado pervisors move in on the tables, relieve the employees, at the casino until about 6 o'clock, then went home to and order them to leave the casino. This order to leave eat and change their clothes before reporting back to was also conveyed to employees who were off duty in work at 8:30. There is no indication in the record that the croupiers' restroom. 1" There were no problems and the union officers told Alvarez what they were planning no incidents. The croupiers all left the casino and went to do, but Delgado did admit that they told other em- outside the hotel, where they established a picket line. ployees, and it is clear from Alvarez' own testimony that Although Respondent maintained in later communica- he was aware that strike action was a real possibility. In tions to the strikers, and in its answer to the complaint in fact Alvarez located Tosado some time before 8 o'clock C 24-CA-4269, that the employees had abandoned and told him of the situation. Tosado told Alvarez to t unguarded, there is hold the day-shift supervisors beyond the end of their n e. r ta an e e let i shift in order to cover the gambling tables in case of an o evidence in this record that any employee left his emergency. table unguarded, or that anyone left his table except by * inc IA c i^T*_* » « i " - Tosado finally arrived at the casino about 10 that t h e o r d e r o f a supervisor. Rafael Rossi Soto, a witness night. He spoke to Alvarez and Santiago, the assistant f o r Respondent, testified that Sanchez had told him to manager in general charge of personnel matters. Accord- leave the casino. Then he asked Tosado what he should ing to Tosado he learned from Alvarez and Santiago that do.' 9 Tosado replied that he should do what the shop the situation was unchanged. steward had instructed, that he alone could do nothing. At that point Tosado left the casino and went to see It would, indeed, be inconsistent with the Union's plan Maza. Tosado and Maza discussed the fact that the to stage a sit-down strike to abandon the tables, and any bonus had been promised, and also their impression that departures by employees from their tables was the result if they gave the bonus that night, under pressure, they of management's prompt response to the work stoppage. would be establishing an undesirable precedent. They Thus I cannot find that any employee willfully aban- agreed that in those circumstances they would no longer doned his table, and, further, I find that the attempt to have control of the casino. Thus Tosado and Maza de- stage a sit-down strike, whatever the intention of the cided that they would not give the bonus that night, but if the employees did not strike they would give the bonus the next day. With this decided, Tosado returned to the casino T o sa do explained that he used Santiago as an intermediary because the latter was named in the contract as the management representative around 10:30 p.m. and told Santiago to inform the Union responsible for dealing with the Union. _" The only dissent to this evidence was the testimony of Rafael Rossi " I have relied on the undenied and mutually corroborative testimony Soto, who could have been mistaken about what Sanchez said to him. of Delgado, Sanchez, and Crespo for my findings on the events of the Carlos Emmanueli, a government inspector on duty that night, testified afternoon and early evening of December 20. that there were not many people in the casino that night, even though it " It is not clear whether this was before or after they met with Al- was at the beginning of the tourist season. Emmanueli stated that there varcz. were three out of nine blackjack tables open, one out of three roulette " At the hearing the translation was, as stated, "hands down." Howev- tables, and one out of two dice tables. er, Delgado's affidavit, in evidence, translates the words pare de brazos " The evidence shows that the croupiers work, roughly, a schedule of caidos as a "sit-down strike." The latter translation of these words is cor- one hour at the tables and one-half hour off. Thus approximately one roborated by Simon and Schuster's International Dictionary, third of the employees on a given shift would be off duty at all times English/Spanish, Spanish/English, Simon and Schuster, New York, 1973, during their shift. There are some variations to this which are not materi- and Appleton's New Cuyas, Prentice-Hall, Inc., Englewood Cliffs, New al here. Jersey, 1972. Accordingly I find that the agreement was to hold a sit- "1 Rossi was a new employee who had not yet joined the Union and down strike at the casino, to force management to grant the bonus. felt no loyalty toward it. 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As soon as Luna left the casino Barbosa called Delga- that they were not going to give the bonus that night. 16 do, the general shop steward and a night-shift employee, Tosado did tell Santiago that, if the employees did not at his home. " Delgado in his turn, contacted Crespo and strike, they would receive the bonus on the next day. Union Vice President Humberto Sanchez. These three However, he instructed him not to tell this to the em- drove immediately from their homes to the casino. On ployees. arriving there, they asked Assistant Manager Jose Al- Santiago then called Sanchez and Crespo into the varez if Barbosa could be relieved from duty to consult casino office and informed them that there was no on the matter. Alvarez agreed and the four union offi- Christmas bonus and that Tosado had nothing to discuss cials went to the hotel's main office in order to talk to with them. Maza. On hearing of their request, Maza came to the At this point Sanchez and Crespo left the office and door of his office and told them he had no time to talk oceeded into the casino. On the way Sanchez encoun- to them, and that they should talk to the casino manager. r j i ii. * 1 They returned to the casino and again spoke to Alvarez, t er ed T o s ad o an d as k ed w h ethe r h e w as going t o pay t h e since the manager, Tosado, was not there. Alvarez tried b o n us o r n o t . T osad o repli ed t h a t h e w as n o t, emphasiz- to contact Tosado but could not, then told the employ- ing the Point with an all-purpose, apparently untranslata- ees to wait for Tosado to come in. b le , Spanish epithet. Sanchez and Crespo then proceeded Around 2:30 or 3 p.m. Delgado testified that he, from table to table in the casino, instructing the employ- Crespo, and Sanchez had a conversation in the parking ees that the "casino is stopped," but not to abandon the lot of the hotel. 14 They decided that, if management did tables. 17 The union leaders were, obviously, trying to im- not give the bonus and refused to speak about it, they plement a sit-down strike in the casino. These aims were could stage a "hands down" stoppage." thwarted by management, as Tosado gave orders that su- Crespo, Sanchez, and Delgado then waited for Tosado pervisors move in on the tables, relieve the employees, at the casino until about 6 o'clock, then went home to and order them to leave the casino. This order to leave eat and change their clothes before reporting back to was also conveyed to employees who were off duty in work at 8:30. There is no indication in the record that the croupiers' restroom. 18 There were no problems and the union officers told Alvarez what they were planning no incidents. The croupiers all left the casino and went to do, but Delgado did admit that they told other em- outside the hotel, where they established a picket line. ployees, and it is clear from Alvarez' own testimony that Although Respondent maintained in later communica- he was aware that strike action was a real possibility. In tions to the strikers, and in its answer to the complaint in fact Alvarez located Tosado some time before 8 o'clock C 24-CA-4269, that the employees had abandoned and told him of the situation. Tosado told Alvarez to t unguarded, there is hold the day-shift supervisors beyond the end of their n e. r ta an e e let i shift in order to cover the gambling tables in case of an o evidence in this record that any employee left his emergency. table unguarded, or that anyone left his table except by * inc IA c i^T*_* » « i " - Tosado finally arrived at the casino about 10 that t h e o r d e r o f a supervisor. Rafael Rossi Soto, a witness night. He spoke to Alvarez and Santiago, the assistant f o r Respondent, testified that Sanchez had told him to manager in general charge of personnel matters. Accord- leave the casino. Then he asked Tosado what he should ing to Tosado he learned from Alvarez and Santiago that do.' 9 Tosado replied that he should do what the shop the situation was unchanged. steward had instructed, that he alone could do nothing. At that point Tosado left the casino and went to see It would, indeed, be inconsistent with the Union's plan Maza. Tosado and Maza discussed the fact that the to stage a sit-down strike to abandon the tables, and any bonus had been promised, and also their impression that departures by employees from their tables was the result if they gave the bonus that night, under pressure, they of management's prompt response to the work stoppage. would be establishing an undesirable precedent. They Thus I cannot find that any employee willfully aban- agreed that in those circumstances they would no longer doned his table, and, further, I find that the attempt to have control of the casino. Thus Tosado and Maza de- stage a sit-down strike, whatever the intention of the cided that they would not give the bonus that night, but if the employees did not strike they would give the bonus the next day. With this decided, Tosado returned to the casino T o sa do explained that he used Santiago as an intermediary because the latter was named in the contract as the management representative around 10:30 p.m. and told Santiago to inform the Union responsible for dealing with the Union. _" The only dissent to this evidence was the testimony of Rafael Rossi " I have relied on the undenied and mutually corroborative testimony Soto, who could have been mistaken about what Sanchez said to him. of Delgado, Sanchez, and Crespo for my findings on the events of the Carlos Emmanueli, a government inspector on duty that night, testified afternoon and early evening of December 20. that there were not many people in the casino that night, even though it " It is not clear whether this was before or after they met with Al- was at the beginning of the tourist season. Emmanueli stated that there varcz. were three out of nine blackjack tables open, one out of three roulette " At the hearing the translation was, as stated, "hands down." Howev- tables, and one out of two dice tables. er, Delgado's affidavit, in evidence, translates the words pare de brazos " The evidence shows that the croupiers work, roughly, a schedule of caidos as a "sit-down strike." The latter translation of these words is cor- one hour at the tables and one-half hour off. Thus approximately one roborated by Simon and Schuster's International Dictionary, third of the employees on a given shift would be off duty at all times English/Spanish, Spanish/English, Simon and Schuster, New York, 1973, during their shift. There are some variations to this which are not materi- and Appleton's New Cuyas, Prentice-Hall, Inc., Englewood Cliffs, New al here. Jersey, 1972. Accordingly I find that the agreement was to hold a sit- "1 Rossi was a new employee who had not yet joined the Union and down strike at the casino, to force management to grant the bonus. felt no loyalty toward it. 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As soon as Luna left the casino Barbosa called Delga- that they were not going to give the bonus that night. 16 do, the general shop steward and a night-shift employee, Tosado did tell Santiago that, if the employees did not at his home. " Delgado in his turn, contacted Crespo and strike, they would receive the bonus on the next day. Union Vice President Humberto Sanchez. These three However, he instructed him not to tell this to the em- drove immediately from their homes to the casino. On ployees. arriving there, they asked Assistant Manager Jose Al- Santiago then called Sanchez and Crespo into the varez if Barbosa could be relieved from duty to consult casino office and informed them that there was no on the matter. Alvarez agreed and the four union offi- Christmas bonus and that Tosado had nothing to discuss cials went to the hotel's main office in order to talk to with them. Maza. On hearing of their request, Maza came to the At this point Sanchez and Crespo left the office and door of his office and told them he had no time to talk oceeded into the casino. On the way Sanchez encoun- to them, and that they should talk to the casino manager. r j i ii. * 1 They returned to the casino and again spoke to Alvarez, t er ed T o s ad o an d as k ed w h ethe r h e w as going t o pay t h e since the manager, Tosado, was not there. Alvarez tried b o n us o r n o t . T o sad o repli ed t h a t h e w as n o t, emphasiz- to contact Tosado but could not, then told the employ- ing the Point with an all-purpose, apparently untranslata- ees to wait for Tosado to come in. b le , Spanish epithet. Sanchez and Crespo then proceeded Around 2:30 or 3 p.m. Delgado testified that he, from table to table in the casino, instructing the employ- Crespo, and Sanchez had a conversation in the parking ees that the "casino is stopped," but not to abandon the lot of the hotel. 14 They decided that, if management did tables. 17 The union leaders were, obviously, trying to im- not give the bonus and refused to speak about it, they plement a sit-down strike in the casino. These aims were could stage a "hands down" stoppage." thwarted by management, as Tosado gave orders that su- Crespo, Sanchez, and Delgado then waited for Tosado pervisors move in on the tables, relieve the employees, at the casino until about 6 o'clock, then went home to and order them to leave the casino. This order to leave eat and change their clothes before reporting back to was also conveyed to employees who were off duty in work at 8:30. There is no indication in the record that the croupiers' restroom. 18 There were no problems and the union officers told Alvarez what they were planning no incidents. The croupiers all left the casino and went to do, but Delgado did admit that they told other em- outside the hotel, where they established a picket line. ployees, and it is clear from Alvarez' own testimony that Although Respondent maintained in later communica- he was aware that strike action was a real possibility. In tions to the strikers, and in its answer to the complaint in fact Alvarez located Tosado some time before 8 o'clock C 24-CA-4269, that the employees had abandoned and told him of the situation. Tosado told Alvarez to t unguarded, there is hold the day-shift supervisors beyond the end of their n e. r ta an e e let i shift in order to cover the gambling tables in case of an o evidence in this record that any employee left his emergency. table unguarded, or that anyone left his table except by * inc IA c i^T*_* » « i " - Tosado finally arrived at the casino about 10 that t h e o r d e r o f a supervisor. Rafael Rossi Soto, a witness night. He spoke to Alvarez and Santiago, the assistant f o r Respondent, testified that Sanchez had told him to manager in general charge of personnel matters. Accord- leave the casino. Then he asked Tosado what he should ing to Tosado he learned from Alvarez and Santiago that do.' 9 Tosado replied that he should do what the shop the situation was unchanged. steward had instructed, that he alone could do nothing. At that point Tosado left the casino and went to see It would, indeed, be inconsistent with the Union's plan Maza. Tosado and Maza discussed the fact that the to stage a sit-down strike to abandon the tables, and any bonus had been promised, and also their impression that departures by employees from their tables was the result if they gave the bonus that night, under pressure, they of management's prompt response to the work stoppage. would be establishing an undesirable precedent. They Thus I cannot find that any employee willfully aban- agreed that in those circumstances they would no longer doned his table, and, further, I find that the attempt to have control of the casino. Thus Tosado and Maza de- stage a sit-down strike, whatever the intention of the cided that they would not give the bonus that night, but if the employees did not strike they would give the bonus the next day. With this decided, Tosado returned to the casino T o sa do explained that he used Santiago as an intermediary because the latter was named in the contract as the management representative around 10:30 p.m. and told Santiago to inform the Union responsible for dealing with the Union. _" The only dissent to this evidence was the testimony of Rafael Rossi " I have relied on the undenied and mutually corroborative testimony Soto, who could have been mistaken about what Sanchez said to him. of Delgado, Sanchez, and Crespo for my findings on the events of the Carlos Emmanueli, a government inspector on duty that night, testified afternoon and early evening of December 20. that there were not many people in the casino that night, even though it " It is not clear whether this was before or after they met with Al- was at the beginning of the tourist season. Emmanueli stated that there varcz. were three out of nine blackjack tables open, one out of three roulette " At the hearing the translation was, as stated, "hands down." Howev- tables, and one out of two dice tables. er, Delgado's affidavit, in evidence, translates the words pare de brazos " The evidence shows that the croupiers work, roughly, a schedule of caidos as a "sit-down strike." The latter translation of these words is cor- one hour at the tables and one-half hour off. Thus approximately one roborated by Simon and Schuster's International Dictionary, third of the employees on a given shift would be off duty at all times English/Spanish, Spanish/English, Simon and Schuster, New York, 1973, during their shift. There are some variations to this which are not materi- and Appleton's New Cuyas, Prentice-Hall, Inc., Englewood Cliffs, New al here. Jersey, 1972. Accordingly I find that the agreement was to hold a sit- "1 Rossi was a new employee who had not yet joined the Union and down strike at the casino, to force management to grant the bonus. felt no loyalty toward it. HOTEL HOLIDAY INN DE ISLA VERDE 501 Union, was forestalled, and that such a strike did not, in The next event in the chain was the meeting in the fact, occur. 2 parking lot between Crespo, Delgado, and Sanchez In subjecting these facts to analysis, it is first necessary where it was decided that the Union would strike if the to determine whether the employees who went out on bonus were not paid that night, and if management re- strike on the night of December 20 were engaged in pro- fused to discuss the matter of the bonus. The substance tected concerted activity or whether their action was un- of this decision, at least that part dealing with the possi- protected, subjecting them to disciplinary action by Re- bility of a strike, was conveyed to Alvarez, who in turn spondent. alerted Tosado. Initially there is no question that the discussions about The evidence shows that Respondent was aware of the the rotating days off constituted protected activity in nature of the problem, the seriousness of the situation, pursuance of the employees' concerted aims as expressed and the potential disruption of the business of the casino in the November 1978 amendments to the collective-bar- at the beginning of the tourist season. The record is gaining agreement. There is no indication in the record nearly barren of evidence tending to show any actions that, at least up to November 1979, the failure to reach by Respondent's agents in the period from mid-afternoon agreement on this matter was due to any factor other until 10 o'clock that night, or Respondent's motivations than the difficulty of implementing the mechanics of the in that time period. It is not unusual for the casino man- schedule. That this difficulty produced feelings of frus- ager to arrive at the casino as late as 10 p.m. The casino tration in the Union is evident from the request for arbi- operates from 1 p.m. to 4 a.m. Later testimony from one tration filed on November 9 by the then president, of Tosado's successors would indicate that the manager Ruben Ramos Perez. These frustrations may also have is present off and on during the early hours of operation, led to the resignation of Ramos in November and his re- but he apparently arrives late and remains until closing placement by Crespo. time. Thus I can raise no inference from the fact that Al- Such a change in leadership, particularly if the change varez could not reach Tosado until 7 or 8 p.m., and that is impelled or motivated by dissatisfaction with the poli- the latter did not actually arrive at the casino until after cies of the prior officers and impatience with the results 10. achieved by those officers, is almost inevitably accompa- It may well be that Respondent had no clear or defi- nied by a higher lever of militancy and a more aggres- nite plan of action during this period. There is no expla- sive approach to the problems at hand. Thus in late No- nation of Tosado's whereabouts or activity. There is no vember Crespo testified about expressions of anger and evidence that anyone had talked to Luna, whose an- impatience by Tosado in the course of their discussions nouncement to Barbosa early in the afternoon had preci- on uniforms, the Christmas party, and the Christmas pitated the whole thing. Luna testified that he was in his bonus, as well as further discussions on the rotating days office until 5 p.m. when he left for the day. I did not find off issue.2 t In this last situation Crespo fared no better Luna to be a credible witness but he was the personnel than his predecessor, Ramos, in reaching a solution. manager for the hotel, and there is no indication that Al- Crespo then tried a new tactic in filing a charge with the varez, Tosado, or anyone else contacted him either Puerto Rico Labor Relations Board on December 4. 22 before or after he left work for the day. While the substance of this charge may have overlapped, By 10 p.m., then, the stage was set for a confrontation or even duplicated the matter included in the November between the Union and Respondent. At that time Tosado arbitration request, there can be no question that this was came into the casino, verified the status of the situation also protected concerted activity. by conferring with Alvarez and Santiago, and left to There is no direct evidence in the record on when the consult with Maza. Tosado and Maza were apparently Respondent was notified of the charge. There is no indi- under the impression that the Union would strike if the cation on the charge itself, nor on the interview notice bonus were not given that night. Accordingly they de- from the Puerto Rico Labor Relations Board, that copies cided to test the Union by precipitating the threatened of those documents were sent to the Employer. It is logi- confrontation. They determined that they would not pay cal to assume, and I find, that notice was given to Re- over the bonus that night, but, if the strike did not occur, spondent, and from the testimony of Luna I infer and they would pay it the next day.23 find that whatever form that notice took was received by Tosado then determined that he would notify the Respondent on December 20. Union of the first part of this decision, that the bonus I have already found that Respondent's reaction to this would not be paid, but not the fact that it would be paid charge, as dictated by Maza and relayed by Luna to Bar- on the next day if there were no strike. In this decision I bosa, was to unilaterally determine that the Christmas find that Tosado not only intended to test the Union's bonus would not be paid. I find that this action constitut- will and strength, but also, by determining not to discuss ed a violation of Section 8(aX)() and (5) of the Act. the matter with the Union's representatives in the terms decided on by Maza and himself, flung down a gauntlet o Accordingly, cases such as Fansteel Metallurgical Corp. v. N.LR.B., 306 U.S. 240 (1939), cited by Respondent in its brief, are inapplicable to this case. 2 There is no explanation of why Maza would have instructed Luna to "1 Crespo's testimony on this is so sketchy and conclusionary that I tell the Union that the bonus would not be paid at all because of the cannot make a finding that Tosado showed animus or hostility toward filing of the charge with the Puerto Rico Labor Relations Board, then the Union or its officers. His comments could reflect only the normal changed his mind and agreed with Tosado that the bonus would be paid give and take of labor relations generally. on December 21 if there were no strike. Maza did not testify, and did not 22 There is testimony that under Puerto Rican law violations of the deny that he gave the orders or made the statements attributed to him by terms of a collective-bargaining agreement are violations of that law others HOTEL HOLIDAY INN DE ISLA VERDE 501 Union, was forestalled, and that such a strike did not, in The next event in the chain was the meeting in the fact, occur. 20 parking lot between Crespo, Delgado, and Sanchez In subjecting these facts to analysis, it is first necessary where it was decided that the Union would strike if the to determine whether the employees who went out on bonus were not paid that night, and if management re- strike on the night of December 20 were engaged in pro- fused to discuss the matter of the bonus. The substance tected concerted activity or whether their action was un- of this decision, at least that part dealing with the possi- protected, subjecting them to disciplinary action by Re- bility of a strike, was conveyed to Alvarez, who in turn spondent. alerted Tosado. Initially there is no question that the discussions about The evidence shows that Respondent was aware of the the rotating days off constituted protected activity in nature of the problem, the seriousness of the situation, pursuance of the employees' concerted aims as expressed and the potential disruption of the business of the casino in the November 1978 amendments to the collective-bar- at the beginning of the tourist season. The record is gaining agreement. There is no indication in the record nearly barren of evidence tending to show any actions that, at least up to November 1979, the failure to reach by Respondent's agents in the period from mid-afternoon agreement on this matter was due to any factor other until 10 o'clock that night, or Respondent's motivations than the difficulty of implementing the mechanics of the in that time period. It is not unusual for the casino man- schedule. That this difficulty produced feelings of frus- ager to arrive at the casino as late as 10 p.m. The casino tration in the Union is evident from the request for arbi- operates from 1 p.m. to 4 a.m. Later testimony from one tration filed on November 9 by the then president, of Tosado's successors would indicate that the manager Ruben Ramos Perez. These frustrations may also have is present off and on during the early hours of operation, led to the resignation of Ramos in November and his re- but he apparently arrives late and remains until closing placement by Crespo. time. Thus I can raise no inference from the fact that Al- Such a change in leadership, particularly if the change varez could not reach Tosado until 7 or 8 p.m., and that is impelled or motivated by dissatisfaction with the poli- the latter did not actually arrive at the casino until after cies of the prior officers and impatience with the results 10. achieved by those officers, is almost inevitably accompa- It may well be that Respondent had no clear or defi- nied by a higher lever of militancy and a more aggres- nite plan of action during this period. There is no expla- sive approach to the problems at hand. Thus in late No- nation of Tosado's whereabouts or activity. There is no vember Crespo testified about expressions of anger and evidence that anyone had talked to Luna, whose an- impatience by Tosado in the course of their discussions nouncement to Barbosa early in the afternoon had preci- on uniforms, the Christmas party, and the Christmas pitated the whole thing. Luna testified that he was in his bonus, as well as further discussions on the rotating days office until 5 p.m. when he left for the day. I did not find off issue.21 In this last situation Crespo fared no better Luna to be a credible witness but he was the personnel than his predecessor, Ramos, in reaching a solution. manager for the hotel, and there is no indication that Al- Crespo then tried a new tactic in filing a charge with the varez, Tosado, or anyone else contacted him either Puerto Rico Labor Relations Board on December 4.22 before or after he left work for the day. While the substance of this charge may have overlapped, By 10 p.m., then, the stage was set for a confrontation or even duplicated the matter included in the November between the Union and Respondent. At that time Tosado arbitration request, there can be no question that this was came into the casino, verified the status of the situation also protected concerted activity. by conferring with Alvarez and Santiago, and left to There is no direct evidence in the record on when the cs with Maza. Tosado and Maza were apparently Respondent was notified of the charge. There is no indi- under the impression that the Union would strike if the cation on the charge itself, nor on the interview notice bonus were not given that night. Accordingly they de- from the Puerto Rico Labor Relations Board, that copies cided to test the Union by precipitating the threatened of those documents were sent to the Employer. It is logi- confrontation. They determined that they would not pay cal to assume, and I find, that notice was given to Re- over the bonus that night, but, if the strike did not occur, spondent, and from the testimony of Luna I infer and they would pay it the next day. 2 find that whatever form that notice took was received by Tosado then determined that he would notify the Respondent on December 20. Union of the first part of this decision, that the bonus I have already found that Respondent's reaction to this would not be paid, but not the fact that it would be paid charge, as dictated by Maza and relayed by Luna to Bar- on the next day if there were no strike. In this decision I bosa, was to unilaterally determine that the Christmas find that Tosado not only intended to test the Union's bonus would not be paid. I find that this action constitut- will and strength, but also, by determining not to discuss ed a v io la tio n o f Se c:tio n 8(a)() and (5) o f t h e A c t. the matter with the Union's representatives in the terms ~~~ ----- ,~~~~~~~~~decided on by Maza and himself, flung down a gauntlet I Accordingly, cases such as Fansteel Metallurgical Corp. v. N.LR.B. e 306 U.S. 240 (1939), cited by Respondent in its brief, are inapplicable to this case. 2" There is no explanation of why Maza would have instructed Luna to " Crespo's testimony on this is so sketchy and conclusionary that I tell the Union that the bonus would not be paid at all because of the cannot make a finding that Tosado showed animus or hostility toward filing of the charge with the Puerto Rico Labor Relations Board, then the Union or its officers. His comments could reflect only the normal changed his mind and agreed with Tosado that the bonus would be paid give and take of labor relations generally,.on December 21 if there were no strike. Maza did not testify, and did not " There is testimony that under Puerto Rican law violations of the deny that he gave the orders or made the statements attributed to him by terms of a collective-bargaining agreement are violations of that law. others. HOTEL HOLIDAY INN DE ISLA VERDE 501 Union, was forestalled, and that such a strike did not, in The next event in the chain was the meeting in the fact, occur. 20 parking lot between Crespo, Delgado, and Sanchez In subjecting these facts to analysis, it is first necessary where it was decided that the Union would strike if the to determine whether the employees who went out on bonus were not paid that night, and if management re- strike on the night of December 20 were engaged in pro- fused to discuss the matter of the bonus. The substance tected concerted activity or whether their action was un- of this decision, at least that part dealing with the possi- protected, subjecting them to disciplinary action by Re- bility of a strike, was conveyed to Alvarez, who in turn spondent. alerted Tosado. Initially there is no question that the discussions about The evidence shows that Respondent was aware of the the rotating days off constituted protected activity in nature of the problem, the seriousness of the situation, pursuance of the employees' concerted aims as expressed and the potential disruption of the business of the casino in the November 1978 amendments to the collective-bar- at the beginning of the tourist season. The record is gaining agreement. There is no indication in the record nearly barren of evidence tending to show any actions that, at least up to November 1979, the failure to reach by Respondent's agents in the period from mid-afternoon agreement on this matter was due to any factor other until 10 o'clock that night, or Respondent's motivations than the difficulty of implementing the mechanics of the in that time period. It is not unusual for the casino man- schedule. That this difficulty produced feelings of frus- ager to arrive at the casino as late as 10 p.m. The casino tration in the Union is evident from the request for arbi- operates from 1 p.m. to 4 a.m. Later testimony from one tration filed on November 9 by the then president, of Tosado's successors would indicate that the manager Ruben Ramos Perez. These frustrations may also have is present off and on during the early hours of operation, led to the resignation of Ramos in November and his re- but he apparently arrives late and remains until closing placement by Crespo. time. Thus I can raise no inference from the fact that Al- Such a change in leadership, particularly if the change varez could not reach Tosado until 7 or 8 p.m., and that is impelled or motivated by dissatisfaction with the poli- the latter did not actually arrive at the casino until after cies of the prior officers and impatience with the results 10. achieved by those officers, is almost inevitably accompa- It may well be that Respondent had no clear or defi- nied by a higher lever of militancy and a more aggres- nite plan of action during this period. There is no expla- sive approach to the problems at hand. Thus in late No- nation of Tosado's whereabouts or activity. There is no vember Crespo testified about expressions of anger and evidence that anyone had talked to Luna, whose an- impatience by Tosado in the course of their discussions nouncement to Barbosa early in the afternoon had preci- on uniforms, the Christmas party, and the Christmas pitated the whole thing. Luna testified that he was in his bonus, as well as further discussions on the rotating days office until 5 p.m. when he left for the day. I did not find off issue.21 In this last situation Crespo fared no better Luna to be a credible witness but he was the personnel than his predecessor, Ramos, in reaching a solution. manager for the hotel, and there is no indication that Al- Crespo then tried a new tactic in filing a charge with the varez, Tosado, or anyone else contacted him either Puerto Rico Labor Relations Board on December 4.22 before or after he left work for the day. While the substance of this charge may have overlapped, By 10 p.m., then, the stage was set for a confrontation or even duplicated the matter included in the November between the Union and Respondent. At that time Tosado arbitration request, there can be no question that this was came into the casino, verified the status of the situation also protected concerted activity. by conferring with Alvarez and Santiago, and left to There is no direct evidence in the record on when the cs with Maza. Tosado and Maza were apparently Respondent was notified of the charge. There is no indi- under the impression that the Union would strike if the cation on the charge itself, nor on the interview notice bonus were not given that night. Accordingly they de- from the Puerto Rico Labor Relations Board, that copies cided to test the Union by precipitating the threatened of those documents were sent to the Employer. It is logi- confrontation. They determined that they would not pay cal to assume, and I find, that notice was given to Re- over the bonus that night, but, if the strike did not occur, spondent, and from the testimony of Luna I infer and they would pay it the next day. 2 find that whatever form that notice took was received by Tosado then determined that he would notify the Respondent on December 20. Union of the first part of this decision, that the bonus I have already found that Respondent's reaction to this would not be paid, but not the fact that it would be paid charge, as dictated by Maza and relayed by Luna to Bar- on the next day if there were no strike. In this decision I bosa, was to unilaterally determine that the Christmas find that Tosado not only intended to test the Union's bonus would not be paid. I find that this action constitut- will and strength, but also, by determining not to discuss ed a v io la tio n o f Se c:tio n 8(a)() and (5) o f t h e A c t. the matter with the Union's representatives in the terms ~~~ ----- ,~~~~~~~~~decided on by Maza and himself, flung down a gauntlet I Accordingly, cases such as Fansteel Metallurgical Corp. v. N.LR.B. e 306 U.S. 240 (1939), cited by Respondent in its brief, are inapplicable to this case. 2" There is no explanation of why Maza would have instructed Luna to " Crespo's testimony on this is so sketchy and conclusionary that I tell the Union that the bonus would not be paid at all because of the cannot make a finding that Tosado showed animus or hostility toward filing of the charge with the Puerto Rico Labor Relations Board, then the Union or its officers. His comments could reflect only the normal changed his mind and agreed with Tosado that the bonus would be paid give and take of labor relations generally,.on December 21 if there were no strike. Maza did not testify, and did not " There is testimony that under Puerto Rican law violations of the deny that he gave the orders or made the statements attributed to him by terms of a collective-bargaining agreement are violations of that law. others. HOTEL HOLIDAY INN DE ISLA VERDE 501 Union, was forestalled, and that such a strike did not, in The next event in the chain was the meeting in the fact, occur. 20 parking lot between Crespo, Delgado, and Sanchez In subjecting these facts to analysis, it is first necessary where it was decided that the Union would strike if the to determine whether the employees who went out on bonus were not paid that night, and if management re- strike on the night of December 20 were engaged in pro- fused to discuss the matter of the bonus. The substance tected concerted activity or whether their action was un- of this decision, at least that part dealing with the possi- protected, subjecting them to disciplinary action by Re- bility of a strike, was conveyed to Alvarez, who in turn spondent. alerted Tosado. Initially there is no question that the discussions about The evidence shows that Respondent was aware of the the rotating days off constituted protected activity in nature of the problem, the seriousness of the situation, pursuance of the employees' concerted aims as expressed and the potential disruption of the business of the casino in the November 1978 amendments to the collective-bar- at the beginning of the tourist season. The record is gaining agreement. There is no indication in the record nearly barren of evidence tending to show any actions that, at least up to November 1979, the failure to reach by Respondent's agents in the period from mid-afternoon agreement on this matter was due to any factor other until 10 o'clock that night, or Respondent's motivations than the difficulty of implementing the mechanics of the in that time period. It is not unusual for the casino man- schedule. That this difficulty produced feelings of frus- ager to arrive at the casino as late as 10 p.m. The casino tration in the Union is evident from the request for arbi- operates from 1 p.m. to 4 a.m. Later testimony from one tration filed on November 9 by the then president, of Tosado's successors would indicate that the manager Ruben Ramos Perez. These frustrations may also have is present off and on during the early hours of operation, led to the resignation of Ramos in November and his re- but he apparently arrives late and remains until closing placement by Crespo. time. Thus I can raise no inference from the fact that Al- Such a change in leadership, particularly if the change varez could not reach Tosado until 7 or 8 p.m., and that is impelled or motivated by dissatisfaction with the poli- the latter did not actually arrive at the casino until after cies of the prior officers and impatience with the results 10. achieved by those officers, is almost inevitably accompa- It may well be that Respondent had no clear or defi- nied by a higher lever of militancy and a more aggres- nite plan of action during this period. There is no expla- sive approach to the problems at hand. Thus in late No- nation of Tosado's whereabouts or activity. There is no vember Crespo testified about expressions of anger and evidence that anyone had talked to Luna, whose an- impatience by Tosado in the course of their discussions nouncement to Barbosa early in the afternoon had preci- on uniforms, the Christmas party, and the Christmas pitated the whole thing. Luna testified that he was in his bonus, as well as further discussions on the rotating days office until 5 p.m. when he left for the day. I did not find off issue.21 In this last situation Crespo fared no better Luna to be a credible witness but he was the personnel than his predecessor, Ramos, in reaching a solution. manager for the hotel, and there is no indication that Al- Crespo then tried a new tactic in filing a charge with the varez, Tosado, or anyone else contacted him either Puerto Rico Labor Relations Board on December 4.22 before or after he left work for the day. While the substance of this charge may have overlapped, By 10 p.m., then, the stage was set for a confrontation or even duplicated the matter included in the November between the Union and Respondent. At that time Tosado arbitration request, there can be no question that this was came into the casino, verified the status of the situation also protected concerted activity. by conferring with Alvarez and Santiago, and left to There is no direct evidence in the record on when the cs with Maza. Tosado and Maza were apparently Respondent was notified of the charge. There is no indi- under the impression that the Union would strike if the cation on the charge itself, nor on the interview notice bonus were not given that night. Accordingly they de- from the Puerto Rico Labor Relations Board, that copies cided to test the Union by precipitating the threatened of those documents were sent to the Employer. It is logi- confrontation. They determined that they would not pay cal to assume, and I find, that notice was given to Re- over the bonus that night, but, if the strike did not occur, spondent, and from the testimony of Luna I infer and they would pay it the next day. 2 find that whatever form that notice took was received by Tosado then determined that he would notify the Respondent on December 20. Union of the first part of this decision, that the bonus I have already found that Respondent's reaction to this would not be paid, but not the fact that it would be paid charge, as dictated by Maza and relayed by Luna to Bar- on the next day if there were no strike. In this decision I bosa, was to unilaterally determine that the Christmas find that Tosado not only intended to test the Union's bonus would not be paid. I find that this action constitut- will and strength, but also, by determining not to discuss ed a v io la tio n o f Se c:tio n 8(a)() and (5) o f t h e A ct. the matter with the Union's representatives in the terms ~~~ ----- ,~~~~~~~~~decided on by Maza and himself, flung down a gauntlet I Accordingly, cases such as Fansteel Metallurgical Corp. v. N.LR.B. e 306 U.S. 240 (1939), cited by Respondent in its brief, are inapplicable to this case. 2" There is no explanation of why Maza would have instructed Luna to " Crespo's testimony on this is so sketchy and conclusionary that I tell the Union that the bonus would not be paid at all because of the cannot make a finding that Tosado showed animus or hostility toward filing of the charge with the Puerto Rico Labor Relations Board, then the Union or its officers. His comments could reflect only the normal changed his mind and agreed with Tosado that the bonus would be paid give and take of labor relations generally,.on December 21 if there were no strike. Maza did not testify, and did not " There is testimony that under Puerto Rican law violations of the deny that he gave the orders or made the statements attributed to him by terms of a collective-bargaining agreement are violations of that law. others. 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the Union, and dared them to test their resolve against to discuss the matter with the Union, in violation of the his. grievance procedures of the contract, 29 and the national As a final indication of Tosado's provocative and con- labor policy. 3' temptuous attitude toward the Union and its officials, I It is my view that the strike which occurred in Re- note that even after the message that there would be no spondent's casino was in response to unfair labor prac- bonus was delivered by Santiago, Sanchez tried once tices so serious as to be "destructive of the foundation on more to ask Tosado about the bonus, only to be peremp- which collective bargaining must rest." 3' Respondent's torily and crudely rebuffed. announcement that the bonus would not be granted be- In these circumstances, I find that Tosado's actions cause the Union had filed a charge can only have dem- constitute not only refusal to bargain over Respondent's onstrated to employees the futility of their exercise of unilateral refusal to pay the bonus, but also total willful legal rights under the law of the Commonwealth, and rejection of the collective-bargaining process. I find his the absolute refusal of Tosado to discuss the matter, as refusal to bargain to be a violation of Section 8(a)(l) and he was required under the contract, vouchsafed to the (5) of the Act. employees the attitude of Respondent toward the con- As has been noted, the collective-bargaining agreement between Respondent and the Union does not contain a tract and its obligations thereunder. Respondent is ill between Respondent and the Union . does not . containa cast, now, in the role of the champion of those very con- no-strike clause. It does contain an arbitration provision cast, now in the role of the champion of those very con- which is operative on the agreement of both parties to tractual principles it so cavalierly disregarded on the submit an issue to arbitration. The evidence in this case night of December 20, 1979 shows two instances where the parties have proceeded to Accordingly, I find that the strike which occurred on arbitration, and no instance where the Union has request- December 20 was in protest against serious and aggra- ed, and Respondent has refused, to arbitrate. According- vated unfair labor practices by Respondent. Indeed, in ly the arbitration clause in the contract may be taken to my view nothing shatters the foundation on which col- be the quid pro quo for an agreement by the Union not to lective bargaining is based so thoroughly and completely strike.2 A no-strike clause may also be inferred from the as an utter refusal to engage in collective bargaining. I agreements by individuals not to abandon their work or find that the strike was protected and that the actions of work stations contained in the contract. There is no the employees in striking were protected concerted ac- question in my mind that a refusal to give the bonus in tivity. this case would have been an arbitrable matter. 25Arbitra- tion of a dispute over the bonus would have accorded C. The Effects of the Strike with Federal policy as enunciated by Congress 2s and af- As noted previously, on leaving the casino the striking firmed by the courts"2 favoring arbitration of labor dis- employees established a picket line in front of the hotel. putes. These authorities and this policy would tend to On the next day, December 21, the day-shift employees the conclusion that a strike occurring in these circum- oined the strike beinnin at p.m. stances, while in protest against unfair labor practices, o g t . Also on December 21 the casino management com- would not constitute protected activity by the employees posed to fo leer 2the casino management con - where the grievance and arbitration route could have t form ee wa diected - been followed. ually, to the employees who had walked out on the pre- IThis, however, presents a different picture than that vious evening and stated that the addressee had "aban- considered by the Board in accordance with the princi- doned his work leaving large amounts of valuables on plea outlined above, The Dow Chemical Company, 212 the gambling table. As a result each of these employees NLRB 333 (1974), cited by Respondent in its brief. Here was discharged. The second letter went, again individ- the unilateral change imposed by Respondent was effec- ually, to the day-shift employees who had joined the tuated in retaliation for the employees' exercise of their strike on December 21. The addressees were "required right to file a charge with the Puerto Rico Labor Rela- to immediately report" to their regular work schedule. tions Board.2' In addition, the decision in Dow Chemical Failure to report would allow management to "take all shows that there was considerable discussion between those measures that are deemed appropriate." the union there and the employer between the announce- The strike continued, and on December 26 manage- ment by the employer of the unilateral change in hours ment directed another form letter to the day-shift em- and the implementation of that change. Here Respondent ployees informing them that they had not reported to through the casino manager, Tosado, absolutely refused work as directed on December 21 and had offered no excuse or justification for such failure to report. The em- Textile Workers Union of America. AFL-CIO v. Lincoln Mills of Ala- ployees were directed to report to work at 12:30 p.m. on barn, 353 U.S. 488 (1957). December 28 on penalty of suspension, since such failure " United Steelworkers of America v. American Manufacturing Co., 363 to report would, in management's view, constitute aban- U.S. 564 (1960); United Steelworkers of America v. Warrior & Gulf Naviga- do of r t. ton Co, 363 U.S. 574 (1960); United Steelworkers of America v. Enterprise donment of their employment. Wheel & Car Corp., 363 U.S. 593 (1960). N See the preamble of the Act." See original contract of May 14, 1977 (English translation, p. I), and " See, e.g., Gateway Coal Co v. United Mine Workers of America, et al., March 10, 1979 supplement (English translation, p. 1 of supplement). 414 U.S. 368 (1974).'° National Labor Relations Act, as amended, Sec. 8(d). " Respondent understandably may have been annoyed by the prospect " Mastro Plastics Corp. v. N.LR.B., 350 U.S. 270 (1956); Arlan's De- of being forced to litigate the same factual matter in two different fora, partment Store of Michagan Inc., 133 NLRB 802 (1961). but this does not give it license to react in the manner chosen. nSee The Dow Chemical Co., 244 NLRB 1060 (1979). 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the Union, and dared them to test their resolve against to discuss the matter with the Union, in violation of the his. grievance procedures of the contract," 9 and the national As a final indication of Tosado's provocative and con- labor policy. 30 temptuous attitude toward the Union and its officials, I It is my view that the strike which occurred in Re- note that even after the message that there would be no spondent's casino was in response to unfair labor prac- bonus was delivered by Santiago, Sanchez tried once tices so serious as to be "destructive of the foundation on more to ask Tosado about the bonus, only to be peremp- which collective bargaining must rest."3" Respondent's torily and crudely rebuffed. announcement that the bonus would not be granted be- In these circumstances, I find that Tosado's actions cause the Union had filed a charge can only have dem- constitute not only refusal to bargain over Respondent's onstrated to employees the futility of their exercise of unilateral refusal to pay the bonus, but also total willful legal rights under the law of the Commonwealth, and rejection of the collective-bargaining process. I find his the absolute refusal of Tosado to discuss the matter, as refusal to bargain t o be a violation of Section 8(a)(1) and h e w as r equir ed u nd e r t h e co n t r act, vouchsafed to the (5) of the Act. employees the attitude of Respondent toward the con- As has been noted, the collective-bargaining agreement trcan isobgtostheud.Rspdntsil betw^ R~~~poS ^ eS ~~~sZ S -:~ t ra£ t an d it s obigtions thereider. Respondent is ill no-strike clause. It does contain an arbitration provision cas t, n o w , in t h e ro l e o f t h e champion of those very con- which is operative on the agreement of both parties to tractual Principles it so cavalierly disregarded on the submit an issue to arbitration, The evidence in this case ^ o f December 20, 1979.» shows two instances where the parties have proceeded to Accordingly, I find that the strike which occurred on arbitration, and no instance where the Union has request- December 20 was in protest against serious and aggra- ed, and Respondent has refused, to arbitrate. According- v at ed unfair labor practices by Respondent. Indeed, in ly the arbitration clause in the contract may be taken to my view nothing shatters the foundation on which col- be the quid pro quo for an agreement by the Union not to lective bargaining is based so thoroughly and completely strike. 24 A no-strike clause may also be inferred from the as an utter refusal to engage in collective bargaining. I agreements by individuals not to abandon their work or find that the strike was protected and that the actions of work stations contained in the contract. There is no the employees in striking were protected concerted ac- question in my mind that a refusal to give the bonus in tivity. this case would have been an arbitrable matter. 25 Arbitra- tion of a dispute over the bonus would have accorded C. The Effects of the Strike with Federal policy as enunciated by Congress28 and af- As noted previously, on leaving the casino the striking firmed by the courts"2 favoring arbitration of labor dis- employees established a picket line in front of the hotel. putes. These authorities and this policy would tend to On the next day, December 21, the day-shift employees the conclusion that a strike occurring in these circum- joined the strike beginning at 1 p.m. stances, while in protest against unfair labor practices, A o Dcme 2 would not constitute protected activity by the employees p s o o r letter The f as direed, in - where the grievance and arbitration route could have ul t othe mpoyees wh had wal oute pre- been followedually, to the employees who had walked out on the pre- IThis, however, presents a different picture than that vious evening and stated that the addressee had "aban- considered by the Board in accordance with the princi- td o ne dg h l s w o r k table. large amounts of valuaboes on ples outlined above, The Dow Chemical Company, 212the gambling table. As a result each of these employees NLRB 333 (1974), cited by Respondent in its brief. Here w as discharged. The second letter went, again individ- the unilateral change imposed by Respondent was effec- ually, to the day-shift employees who had joined the tuated in retaliation for the employees' exercise of their strike on December 21. The addressees were "required right to file a charge with the Puerto Rico Labor Rela- to immediately report" to their regular work schedule. tions Board. 2' In addition, the decision in Dow Chemical Failure to report would allow management to "take all shows that there was considerable discussion between those measures that are deemed appropriate." the union there and the employer between the announce- The strike continued, and on December 26 manage- ment by the employer of the unilateral change in hours ment directed another form letter to the day-shift em- and the implementation of that change. Here Respondent ployees informing them that they had not reported to through the casino manager, Tosado, absolutely refused work as directed on December 21 and had offered no excuse or justification for such failure to report. The em- Textile Workers Union of America, AFL-CIO v. Lincoln Mills of Ala- ployees were directed to report to work at 12:30 p.m. on bama, 353 U.S. 488 (1957). December 28 on penalty of suspension, since such failure " United Steelworkers of A m eri ca v. A m erica n Mansfacturing Co., 363 to report would, in management's view, constitute aban- U.S. 564(1960); United Steelworkers of America v. Warrior & Gulf Naviga-- i lon Ca, 363 U.S. 574 (1960); United Steelworkers of America v. Enterprise donment of their employment. Wheel &t Car Corp., 363 U.S. 593 (1960). * See the preamble of the Act." See original contract of May 14, 1977 (English translation, p. 1), and " Sec, e.g., Gateway Coal Ca v. United Mine Workers of America, el aL., March 10, 1979 supplement (English translation, p. 1 of supplement). 414 U.S. 368 (1974). ° National Labor Relations Act, as amended, Sec. 8(d). "Respondent understandably may have been annoyed by the prospect " Mastro Plastics Corp. v. N.L.R.B., 350 U.S. 270 (1956); Arlan's De- of being forced to litigate the same factual matter in two different fora, partment Store ofMichagan Inc., 133 NLRB 802 (1961). but this does not give it license to react in the manner chosen. See The Dow Chemical Co., 244 NLRB 1060 (1979). 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the Union, and dared them to test their resolve against to discuss the matter with the Union, in violation of the his. grievance procedures of the contract," 9 and the national As a final indication of Tosado's provocative and con- labor policy. 30 temptuous attitude toward the Union and its officials, I It is my view that the strike which occurred in Re- note that even after the message that there would be no spondent's casino was in response to unfair labor prac- bonus was delivered by Santiago, Sanchez tried once tices so serious as to be "destructive of the foundation on more to ask Tosado about the bonus, only to be peremp- which collective bargaining must rest."3" Respondent's torily and crudely rebuffed. announcement that the bonus would not be granted be- In these circumstances, I find that Tosado's actions cause the Union had filed a charge can only have dem- constitute not only refusal to bargain over Respondent's onstrated to employees the futility of their exercise of unilateral refusal to pay the bonus, but also total willful legal rights under the law of the Commonwealth, and rejection of the collective-bargaining process. I find his the absolute refusal of Tosado to discuss the matter, as refusal to bargain t o be a violation of Section 8(a)(1) and h e w as r equir ed u nd e r t h e co n t r act, vouchsafed to the (5) of the Act. employees the attitude of Respondent toward the con- As has been noted, the collective-bargaining agreement trcan isobgtostheud.Rspdntsil betw^ R~~~poS ^d~~n~ion~~o~ t ra£ t an d it s obigtions thereider. Respondent is ill no-strike clause. It does contain an arbitration provision cas t, n o w , in t h e ro l e o f t h e champion of those very con- which is operative on the agreement of both parties to tractual Principles it so cavalierly disregarded on the submit an issue to arbitration, The evidence in this case ^ o f December 20, 1979.» shows two instances where the parties have proceeded to Accordingly, I find that the strike which occurred on arbitration, and no instance where the Union has request- December 20 was in protest against serious and aggra- ed, and Respondent has refused, to arbitrate. According- v at ed unfair labor practices by Respondent. Indeed, in ly the arbitration clause in the contract may be taken to my view nothing shatters the foundation on which col- be the quid pro quo for an agreement by the Union not to lective bargaining is based so thoroughly and completely strike. 24 A no-strike clause may also be inferred from the as an utter refusal to engage in collective bargaining. I agreements by individuals not to abandon their work or find that the strike was protected and that the actions of work stations contained in the contract. There is no the employees in striking were protected concerted ac- question in my mind that a refusal to give the bonus in tivity. this case would have been an arbitrable matter. 25 Arbitra- tion of a dispute over the bonus would have accorded C. The Effects of the Strike with Federal policy as enunciated by Congress28 and af- As noted previously, on leaving the casino the striking firmed by the courts"2 favoring arbitration of labor dis- employees established a picket line in front of the hotel. putes. These authorities and this policy would tend to On the next day, December 21, the day-shift employees the conclusion that a strike occurring in these circum- joined the strike beginning at 1 p.m. stances, while in protest against unfair labor practices, A o Dcme 2 would not constitute protected activity by the employees p s o o r letter The f as direed, in - where the grievance and arbitration route could have ul t othe mpoyees wh a wal oute pre- been followedually, to the employees who had walked out on the pre- IThis, however, presents a different picture than that vious evening and stated that the addressee had "aban- considered by the Board in accordance with the princi- td o ne dg h l s w o r k table. large amounts of valuaboes on ples outlined above, The Dow Chemical Company, 212the gambling table. As a result each of these employees NLRB 333 (1974), cited by Respondent in its brief. Here w as discharged. The second letter went, again individ- the unilateral change imposed by Respondent was effec- ually, to the day-shift employees who had joined the tuated in retaliation for the employees' exercise of their strike on December 21. The addressees were "required right to file a charge with the Puerto Rico Labor Rela- to immediately report" to their regular work schedule. tions Board. 2' In addition, the decision in Dow Chemical Failure to report would allow management to "take all shows that there was considerable discussion between those measures that are deemed appropriate." the union there and the employer between the announce- The strike continued, and on December 26 manage- ment by the employer of the unilateral change in hours ment directed another form letter to the day-shift em- and the implementation of that change. Here Respondent ployees informing them that they had not reported to through the casino manager, Tosado, absolutely refused work as directed on December 21 and had offered no excuse or justification for such failure to report. The em- Textile Workers Union of America, AFL-CIO v. Lincoln Mills of Ala- ployees were directed to report to work at 12:30 p.m. on bama, 353 U.S. 488 (1957). December 28 on penalty of suspension, since such failure " United Steelworkers of A m eri ca v. A m erica n Mansfacturing Co., 363 to report would, in management's view, constitute aban- U.S. 564(1960); United Steelworkers of America v. Warrior & Gulf Naviga-- i lon Ca, 363 U.S. 574 (1960); United Steelworkers of America v. Enterprise donment of their employment. Wheel &t Car Corp., 363 U.S. 593 (1960). * See the preamble of the Act." See original contract of May 14, 1977 (English translation, p. 1), and " Sec, e.g., Gateway Coal Ca v. United Mine Workers of America, el aL., March 10, 1979 supplement (English translation, p. 1 of supplement). 414 U.S. 368 (1974). ° National Labor Relations Act, as amended, Sec. 8(d). "Respondent understandably may have been annoyed by the prospect " Mastro Plastics Corp. v. N.L.R.B., 350 U.S. 270 (1956); Arlan's De- of being forced to litigate the same factual matter in two different fora, partment Store ofMichagan Inc., 133 NLRB 802 (1961). but this does not give it license to react in the manner chosen. See The Dow Chemical Co., 244 NLRB 1060 (1979). 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the Union, and dared them to test their resolve against to discuss the matter with the Union, in violation of the his. grievance procedures of the contract," 9 and the national As a final indication of Tosado's provocative and con- labor policy. 30 temptuous attitude toward the Union and its officials, I It is my view that the strike which occurred in Re- note that even after the message that there would be no spondent's casino was in response to unfair labor prac- bonus was delivered by Santiago, Sanchez tried once tices so serious as to be "destructive of the foundation on more to ask Tosado about the bonus, only to be peremp- which collective bargaining must rest."3" Respondent's torily and crudely rebuffed. announcement that the bonus would not be granted be- In these circumstances, I find that Tosado's actions cause the Union had filed a charge can only have dem- constitute not only refusal to bargain over Respondent's onstrated to employees the futility of their exercise of unilateral refusal to pay the bonus, but also total willful legal rights under the law of the Commonwealth, and rejection of the collective-bargaining process. I find his the absolute refusal of Tosado to discuss the matter, as refusal to bargain t o be a violation of Section 8(a)(1) and h e w as r equir ed u nd e r t h e co n t r act, vouchsafed to the (5) of the Act. employees the attitude of Respondent toward the con- As has been noted, the collective-bargaining agreement trcan isobgtostheud.Rspdntsil betw^ R~~~poS ^d~~n~ion~~o~ t ra£ t an d it s obigations thereider. Respondent is ill no-strike clause. It does contain an arbitration provision cas t, n o w , in t h e ro l e o f t h e champion of those very con- which is operative on the agreement of both parties to tractual Principles it so cavalierly disregarded on the submit an issue to arbitration, The evidence in this case ^ o f December 20, 1979.» shows two instances where the parties have proceeded to Accordingly, I find that the strike which occurred on arbitration, and no instance where the Union has request- December 20 was in protest against serious and aggra- ed, and Respondent has refused, to arbitrate. According- v at ed u n fair labor practices by Respondent. Indeed, in ly the arbitration clause in the contract may be taken to my view nothing shatters the foundation on which col- be the quid pro quo for an agreement by the Union not to lective bargaining is based so thoroughly and completely strike. 24 A no-strike clause may also be inferred from the as an utter refusal to engage in collective bargaining. I agreements by individuals not to abandon their work or find that the strike was protected and that the actions of work stations contained in the contract. There is no the employees in striking were protected concerted ac- question in my mind that a refusal to give the bonus in tivity. this case would have been an arbitrable matter. 25 Arbitra- tion of a dispute over the bonus would have accorded C. The Effects of the Strike with Federal policy as enunciated by Congress21 and af- As noted previously, on leaving the casino the striking firmed by the courts"2 favoring arbitration of labor dis- employees established a picket line in front of the hotel. putes. These authorities and this policy would tend to On the next day, December 21, the day-shift employees the conclusion that a strike occurring in these circum- joined the strike beginning at 1 p.m. stances, while in protest against unfair labor practices, A o Dcme 2 would not constitute protected activity by the employees p s o o r letter The f as direed, in - where the grievance and arbitration route could have ul t ot he e lrw t wal oute pre- been followedually, to the employees who had walked out on the pre- IThis, however, presents a different picture than that vious evening and stated that the addressee had "aban- considered by the Board in accordance with the princi- td o ne dg h l s w o r k tble. g large amounts of valuaboes on ples outlined above, The Dow Chemical Company, 212the gambling table. As a result each of these employees NLRB 333 (1974), cited by Respondent in its brief. Here w as discharged. The second letter went, again individ- the unilateral change imposed by Respondent was effec- ually, to the day-shift employees who had joined the tuated in retaliation for the employees' exercise of their strike on December 21. The addressees were "required right to file a charge with the Puerto Rico Labor Rela- to immediately report" to their regular work schedule. tions Board. 2' In addition, the decision in Dow Chemical Failure to report would allow management to "take all shows that there was considerable discussion between those measures that are deemed appropriate." the union there and the employer between the announce- The strike continued, and on December 26 manage- ment by the employer of the unilateral change in hours ment directed another form letter to the day-shift em- and the implementation of that change. Here Respondent ployees informing them that they had not reported to through the casino manager, Tosado, absolutely refused work as directed on December 21 and had offered no excuse or justification for such failure to report. The em- Textile Workers Union of America, AFL-CIO v. Lincoln Mills of Ala- ployees were directed to report to work at 12:30 p.m. on bama, 353 U.S. 488 (1957). December 28 on penalty of suspension, since such failure " United Steelworkers of A m eri ca v. A m erica n Manufacturing Co., 363 to report would, in management's view, constitute aban- U.S. 564(1960); United Steelworkers of America v. Warrior & Gulf Naviga-- i lon Ca, 363 U.S. 574 (1960); United Steelworkers of America v. Enterprise donment of their employment. Wheel &t Car Corp., 363 U.S. 593 (1960). * See the preamble of the Act." See original contract of May 14, 1977 (English translation, p. 1), and " Sec, e.g., Gateway Coal Ca v. United Mine Workers of America, el aL., March 10, 1979 supplement (English translation, p. 1 of supplement). 414 U.S. 368 (1974). ° National Labor Relations Act, as amended, Sec. 8(d). "Respondent understandably may have been annoyed by the prospect " Mastro Plastics Corp. v. N.L.R.B., 350 U.S. 270 (1956); Arlan's De- of being forced to litigate the same factual matter in two different fora, partment Store ofMichagan Inc., 133 NLRB 802 (1961). but this does not give it license to react in the manner chosen. See The Dow Chemical Co., 244 NLRB 1060 (1979). HOTEL HOLIDAY INN DE ISLA VERDE 503 With one exception, none of the employees returned to ary." Further negotiations resulted in the return of the work until the Union abandoned the strike on January 5. night-shift employees except for Crespo, Sanchez, and This employee, Rafael Rossi, stated that he called Delgado. Tosado on December 22. Tosado arranged to have Rossi As a condition of their return, however, the night-shift picked up and driven in to the hotel. Rossi lived in the employees, according to the credible testimony of Julio hotel with free room and board, and continued to work Bonet Harris, were required to sign a letter accepting the there while the strike lasted. He testified that Tosado hotel's offer to return, and also containing a "voluntary" promised to raise his salary after the strike was over, but waiver of "any claim that . . . [the Union] . . . or any this happened after he had returned to work and cannot other person may be making on my behalf, both with the be considered an inducement to return.33 Agencies of the Commonwealth of Puerto Rico as well There was another meeting at the casino on December as the Federal Government." Bonet's testimony is cor- 22 attended by Tosado, Santiago, Alvarez, and Felix roborated by a letter identical to his letter to manage- Ramos Hernandez, an employee who worked on the day ment executed by Edwin Feliciano Lopez. s Accordingly shift and also served as alternate shop steward for the I find that Respondent required that employees waive Union. Ramos testified that Santiago called him on De- their rights before this Agency, the National Labor Rela- cember 22, asked him to come back to work, and began tions Board, as well as agencies of the Commonwealth, to talk about reinstating some employees. Ramos would as a condition to their return to work. I find this to be a not talk about these matters, but agreed to come to the further violation of Section 8(aXl) of the Act. casino. The meeting among Ramos, Tosado, Alvarez, and Santiago took place at 10:30 p.m. According to D. Incidents Involving Felix Ramos Ramos, Tosado told him that if he came back to work he would have profit sharing and hotel protection while working. If Ramos came back he could stay in the hotel Up to now this Decision has been concerned with the and everything would be all right. Ramos replied that it incidents leading up to the strike, the strike itself, and its would be "immoral" to do that and, apparently, the aftermath. Henceforth I shall be concerned with a series meeting ended. of incidents concerning a single individual, Felix Ramos. There was no further testimony or evidence on this The first of these incidents occurred on January 26, meeting. Neither Tosado nor Alvarez was asked about it, 1980, and was included in the original complaint in Case and Santiago did not testify. The General Counsel 24-CA-4269. The others took place in June, July, and amended the complaint at the opening of the hearing, al- September 1980 and constitute the substantive allegations leging, among other things, that Respondent had violated in Case 24-CA-4381. Section 8(a)(l) of the Act by offering "a profit sharing In his extensive testimony, given in this proceeding, plan and other benefits and improvement in ... working Ramos revealed himself to be a person of intelligence conditions and terms of employment." It seems to me and personal charm. He must also possess a high degree that Ramos' description of the meeting of December 22 of competence as a croupier, as will be seen by the fact falls short of proving the violation alleged. Even if I that Maza granted him a unique and special schedule, were to credit Ramos in this instance, and I do have premium days off, and an unpaid leave of absence. some questions about his credibility, as will be discussed Ramos did, however, have a tendency to tone down and later, I do not believe that such a vague and general to minimize the vehemence of his words and actions in statement about profit sharing can furnish me with a his two serious confrontations with management. Thus basis for a finding that Respondent violated the Act in Ramos' testimony while generally credible, will be evalu- this regard. ated against the testimony of others where conflicts exist, The letters of December 21 to the night-shift employ- in the light of these observations. ees, and December 26 to the day shift are another Ramos first appeared in this case when he was called matter. Since I have found that the strike was in protest by Santiago on December 22 and later that night went to against substantial unfair labor practices by Respondent, the casino to talk with Santiago and Tosado. There is and that the strike was protected concerted activity, the no evidence in the record concerning whether Ramos conduct of Respondent in discharging the night-shift em- participated in the negotiations leading up to the return ployees as of December 21 and the day-shift employees to work of the day shift, but he was appointed as alterna- as of December 26 constituted further violations of Sec- tive union steward by Crepo after the strike ended on tion 8(aX1) and (3) of the Act. .' tion 8(aX 1) and (3) of the Act.3' , With the exception of Geraldo Rodriguez Rivera, who was held re- Additional post-strike developments show that after sponsible by management, together with Crespo, Sanchez, and Delgado, the strike was called off on January 5 there were negoti- of having instigated the strike. These four were never offered reinstate- ations between the Union and management leading to the ment return of the day-shift employees to work in mid-Janu- " See G. C. Exhs. IIA and 17A. Lopez, however, testified that his "fellow employees" told him that this type of letter would allow him to return to work. This does not explain the fact that the letters are identical " There is no allegation in the complaint concerning this incident and, and leads to my conclusion that in fact management prescribed the form in any event, it was not fully developed or litigated. Therefore I make no the letters were to take. finding whether it constitutes a violation of law. This would indicate not only that Ramos was a valued employee, See, e.g., Pacemaker Yacht Co. a Division ofMission Marine, Inc.. 253 but that he was considered by management as influential with his fellow NLRB 828 (1980). employees. HOTEL HOLIDAY INN DE ISLA VERDE 503 With one exception, none of the employees returned to ary."3 Further negotiations resulted in the return of the work until the Union abandoned the strike on January 5. night-shift employees except for Crespo, Sanchez, and This employee, Rafael Rossi, stated that he called Delgado. Tosado on December 22. Tosado arranged to have Rossi As a condition of their return, however, the night-shift picked up and driven in to the hotel. Rossi lived in the employees, according to the credible testimony of Julio hotel with free room and board, and continued to work Bonet Harris, were required to sign a letter accepting the there while the strike lasted. He testified that Tosado hotel's offer to return, and also containing a "voluntary" promised to raise his salary after the strike was over, but waiver of "any claim that . . . [the Union] ... or any this happened after he had returned to work and cannot other person may be making on my behalf, both with the be considered an inducement to return."3Agencies of the Commonwealth of Puerto Rico as well There was another meeting at the casino on December as the Federal Government." Bonet's testimony is cor- 22 attended by Tosado, Santiago, Alvarez, and Felix roborated by a letter identical to his letter to manage- Ramos Hernandez, an employee who worked on the day ment executed by Edwin Feliciano Lopez. 36 Accordingly shift and also served as alternate shop steward for the I find that Respondent required that employees waive Union. Ramos testified that Santiago called him on De- their rights before this Agency, the National Labor Rela- cember 22, asked him to come back to work, and began tions Board, as well as agencies of the Commonwealth, to talk about reinstating some employees. Ramos would as a condition to their return to work. I find this to be a not talk about these matters, but agreed to come to the further violation of Section 8(aX1) of the Act. casino. The meeting among Ramos, Tosado, Alvarez, and Santiago took place at 10:30 p.m. According to D. Incidents Involving Felix Ramos Ramos, Tosado told him that if he came back to work he 1 Th J9 would have profit sharing and hotel protection while working. If Ramos came back he could stay in the hotel Up to now this Decision has been concerned with the and everything would be all right. Ramos replied that it incidents leading up to the strike, the strike itself, and its would be "immoral" to do that and, apparently, the aftermath. Henceforth I shall be concerned with a series meeting ended. of incidents concerning a single individual, Felix Ramos. There was no further testimony or evidence on this 1The first of these incidents occurred on January 26, meeting. Neither Tosado nor Alvarez was asked about it, 1980, and was included in the original complaint in Case and Santiago did not testify. The General Counsel 24-CA-4269. The others took place in June, July, and amended the complaint at the opening of the hearing, al- September 1980 and constitute the substantive allegations leging, among other things, that Respondent had violated in Case 24-CA-4381. Section 8(a)(l) of the Act by offering "a profit sharing In his extensive testimony, given in this proceeding, plan and other benefits and improvement in ... working Ramos revealed himself to be a person of intelligence conditions and terms of employment." It seems to me and personal charm. He must also possess a high degree that Ramos' description of the meeting of December 22 of competence as a croupier, as will be seen by the fact falls short of proving the violation alleged. Even if I that Maza granted him a unique and special schedule, were to credit Ramos in this instance, and I do have premium days off, and an unpaid leave of absence. some questions about his credibility, as will be discussed Ramos did, however, have a tendency to tone down and later, I do not believe that such a vague and general t o minimize the vehemence of his words and actions in statement about profit sharing can furnish me with a his two serious confrontations with management. Thus basis for a finding that Respondent violated the Act in Ram o s ' testimony while generally credible, will be cvalu- this regard. a t e d against the testimony of others where conflicts exist, The letters of December 21 to the night-shift employ- i n t h e light o f t h es e observations. ees, and December 26 to the day shift are another R am o s f ir st appeared in this case when he was called matter. Since I have found that the strike was in protest by Santiago on December 22 and later that night went to against substantial unfair labor practices by Respondent, t h e c asino t o talk with Santiago and Tosado."1 There is and that the strike was protected concerted activity, the n o evidence in the record concerning whether Ramos conduct of Respondent in discharging the night-shift em- participated in the negotiations leading up to the return ployees as of December 21 and the day-shift employees t o w o r k o f t h e d a y shift, but h e w as appointed as alterna- as of December 26 constituted further violations of Sec- tiv e unio n s t ew a r d by Crespo af t er t h e st ri k e e n d ed o n tion 8(aXl) and (3) of the Act."~ ~ i .r .. tion . , 8(X 1 and (3) of the Act. 3 , With the exception of Geraldo Rodriguez Rivera, who was held re- Additional post-strike developments show that after sponsible by management, together with Crespo. Sanchz, and Delgado, the Strike was called off on January 5 there were negoti- of having instigated the strike. These four were never offered reinstate- ations between the Union and management leading to the m e "nt return f the dy-shiftemployes to wok in mi~anu- See G. C. Exhs. II A and 17A. Lopez, however, testified that his return of the day-shift employees to work in mid-Janu- "fellow employees" told him that this type of letter would allow him to return to work. This does not explain the fact that the letters are identical 3 There is no allegation in the complaint concerning this incident and, and leads to my conclusion that in fact management prescribed the form in any event, it was not fully developed or litigated. Therefore I make no the letters were to take. finding whether it constitutes a violation of law. " This would indicate not only that Ramos was a valued employee, "3See, e.g., Pacemaker Yacht Co., a Division ofMission Marine, Inc.. 253 but that he was considered by management as influential with his fellow NLRB 828 (1980). employees. HOTEL HOLIDAY INN DE ISLA VERDE 503 With one exception, none of the employees returned to ary."3 Further negotiations resulted in the return of the work until the Union abandoned the strike on January 5. night-shift employees except for Crespo, Sanchez, and This employee, Rafael Rossi, stated that he called Delgado. Tosado on December 22. Tosado arranged to have Rossi As a condition of their return, however, the night-shift picked up and driven in to the hotel. Rossi lived in the employees, according to the credible testimony of Julio hotel with free room and board, and continued to work Bonet Harris, were required to sign a letter accepting the there while the strike lasted. He testified that Tosado hotel's offer to return, and also containing a "voluntary" promised to raise his salary after the strike was over, but waiver of "any claim that . . . [the Union] ... or any this happened after he had returned to work and cannot other person may be making on my behalf, both with the be considered an inducement to return."3Agencies of the Commonwealth of Puerto Rico as well There was another meeting at the casino on December as the Federal Government." Bonet's testimony is cor- 22 attended by Tosado, Santiago, Alvarez, and Felix roborated by a letter identical to his letter to manage- Ramos Hernandez, an employee who worked on the day ment executed by Edwin Feliciano Lopez. 36 Accordingly shift and also served as alternate shop steward for the I find that Respondent required that employees waive Union. Ramos testified that Santiago called him on De- their rights before this Agency, the National Labor Rela- cember 22, asked him to come back to work, and began tions Board, as well as agencies of the Commonwealth, to talk about reinstating some employees. Ramos would as a condition to their return to work. I find this to be a not talk about these matters, but agreed to come to the further violation of Section 8(aX1) of the Act. casino. The meeting among Ramos, Tosado, Alvarez, and Santiago took place at 10:30 p.m. According to D. Incidents Involving Felix Ramos Ramos, Tosado told him that if he came back to work he 1 Th J9 would have profit sharing and hotel protection while working. If Ramos came back he could stay in the hotel Up to now this Decision has been concerned with the and everything would be all right. Ramos replied that it incidents leading up to the strike, the strike itself, and its would be "immoral" to do that and, apparently, the aftermath. Henceforth I shall be concerned with a series meeting ended. of incidents concerning a single individual, Felix Ramos. There was no further testimony or evidence on this 1The first of these incidents occurred on January 26, meeting. Neither Tosado nor Alvarez was asked about it, 1980, and was included in the original complaint in Case and Santiago did not testify. The General Counsel 24-CA-4269. The others took place in June, July, and amended the complaint at the opening of the hearing, al- September 1980 and constitute the substantive allegations leging, among other things, that Respondent had violated in Case 24-CA-4381. Section 8(a)(l) of the Act by offering "a profit sharing In his extensive testimony, given in this proceeding, plan and other benefits and improvement in ... working Ramos revealed himself to be a person of intelligence conditions and terms of employment." It seems to me and personal charm. He must also possess a high degree that Ramos' description of the meeting of December 22 of competence as a croupier, as will be seen by the fact falls short of proving the violation alleged. Even if I that Maza granted him a unique and special schedule, were to credit Ramos in this instance, and I do have premium days off, and an unpaid leave of absence. some questions about his credibility, as will be discussed Ramos did, however, have a tendency to tone down and later, I do not believe that such a vague and general t o minimize the vehemence of his words and actions in statement about profit sharing can furnish me with a his two serious confrontations with management. Thus basis for a finding that Respondent violated the Act in Ram o s ' testimony while generally credible, will be cvalu- this regard. a t e d against the testimony of others where conflicts exist, The letters of December 21 to the night-shift employ- i n t h e light o f th ese observations. ees, and December 26 to the day shift are another R am o s f ir st appeared in this case when he was called matter. Since I have found that the strike was in protest by Santiago on December 22 and later that night went to against substantial unfair labor practices by Respondent, t h e c asino t o talk with Santiago and Tosado."1 There is and that the strike was protected concerted activity, the n o evidence in the record concerning whether Ramos conduct of Respondent in discharging the night-shift em- participated in the negotiations leading up to the return ployees as of December 21 and the day-shift employees t o w o r k o f t h e d a y shift, but h e w as appointed as alterna- as of December 26 constituted further violations of Sec- tiv e unio n s t ew a r d by Crespo af t er t h e st ri k e e n d ed o n tion 8(aXl) and (3) of the Act."~ ~ i .r .. tion . , 8(X 1 and (3) of the Act. 3 , With the exception of Geraldo Rodriguez Rivera, who was held re- Additional post-strike developments show that after sponsible by management, together with Crespo. Sanchz, and Delgado, the Strike was called Off On January 5 there were negoti- of having instigated the strike. These four were never offered reinstate- ations between the Union and management leading to the m e"nt return f the dy-shiftemployes to wok in mi~anu- See G. C. Exhs. II A and 17A. Lopez, however, testified that his return of the day-shift employees to work in mid-Janu- "fellow employees" told him that this type of letter would allow him to return to work. This does not explain the fact that the letters are identical 3 There is no allegation in the complaint concerning this incident and, and leads to my conclusion that in fact management prescribed the form in any event, it was not fully developed or litigated. Therefore I make no the letters were to take. finding whether it constitutes a violation of law. " This would indicate not only that Ramos was a valued employee, "3See, e.g., Pacemaker Yacht Co., a Division ofMission Marine, Inc.. 253 but that he was considered by management as influential with his fellow NLRB 828 (1980). employees. HOTEL HOLIDAY INN DE ISLA VERDE 503 With one exception, none of the employees returned to ary."3 Further negotiations resulted in the return of the work until the Union abandoned the strike on January 5. night-shift employees except for Crespo, Sanchez, and This employee, Rafael Rossi, stated that he called Delgado. Tosado on December 22. Tosado arranged to have Rossi As a condition of their return, however, the night-shift picked up and driven in to the hotel. Rossi lived in the employees, according to the credible testimony of Julio hotel with free room and board, and continued to work Bonet Harris, were required to sign a letter accepting the there while the strike lasted. He testified that Tosado hotel's offer to return, and also containing a "voluntary" promised to raise his salary after the strike was over, but waiver of "any claim that . . . [the Union] ... or any this happened after he had returned to work and cannot other person may be making on my behalf, both with the be considered an inducement to return."3Agencies of the Commonwealth of Puerto Rico as well There was another meeting at the casino on December as the Federal Government." Bonet's testimony is cor- 22 attended by Tosado, Santiago, Alvarez, and Felix roborated by a letter identical to his letter to manage- Ramos Hernandez, an employee who worked on the day ment executed by Edwin Feliciano Lopez. 36 Accordingly shift and also served as alternate shop steward for the I find that Respondent required that employees waive Union. Ramos testified that Santiago called him on De- their rights before this Agency, the National Labor Rela- cember 22, asked him to come back to work, and began tions Board, as well as agencies of the Commonwealth, to talk about reinstating some employees. Ramos would as a condition to their return to work. I find this to be a not talk about these matters, but agreed to come to the further violation of Section 8(aX1) of the Act. casino. The meeting among Ramos, Tosado, Alvarez, and Santiago took place at 10:30 p.m. According to D. Incidents Involving Felix Ramos Ramos, Tosado told him that if he came back to work he 1 Th J9 would have profit sharing and hotel protection while working. If Ramos came back he could stay in the hotel Up to now this Decision has been concerned with the and everything would be all right. Ramos replied that it incidents leading up to the strike, the strike itself, and its would be "immoral" to do that and, apparently, the aftermath. Henceforth I shall be concerned with a series meeting ended. of incidents concerning a single individual, Felix Ramos. There was no further testimony or evidence on this 1The first of these incidents occurred on January 26, meeting. Neither Tosado nor Alvarez was asked about it, 1980, and was included in the original complaint in Case and Santiago did not testify. The General Counsel 24-CA-4269. The others took place in June, July, and amended the complaint at the opening of the hearing, al- September 1980 and constitute the substantive allegations leging, among other things, that Respondent had violated in Case 24-CA-4381. Section 8(a)(l) of the Act by offering "a profit sharing In his extensive testimony, given in this proceeding, plan and other benefits and improvement in ... working Ramos revealed himself to be a person of intelligence conditions and terms of employment." It seems to me and personal charm. He must also possess a high degree that Ramos' description of the meeting of December 22 of competence as a croupier, as will be seen by the fact falls short of proving the violation alleged. Even if I that Maza granted him a unique and special schedule, were to credit Ramos in this instance, and I do have premium days off, and an unpaid leave of absence. some questions about his credibility, as will be discussed Ramos did, however, have a tendency to tone down and later, I do not believe that such a vague and general t o minimize the vehemence of his words and actions in statement about profit sharing can furnish me with a his t w o ser i o us confrontations with management. Thus basis for a finding that Respondent violated the Act in Ram o s ' testimony while generally credible, will be cvalu- this regard. a t e d against the testimony of others where conflicts exist, The letters of December 21 to the night-shift employ- i n t h e light o f th ese observations. ees, and December 26 to the day shift are another R am o s f ir st appeared in this case when he was called matter. Since I have found that the strike was in protest by Santiago on December 22 and later that night went to against substantial unfair labor practices by Respondent, t h e c asino t o talk with Santiago and Tosado."1 There is and that the strike was protected concerted activity, the n o evidence in the record concerning whether Ramos conduct of Respondent in discharging the night-shift em- participated in the negotiations leading up to the return ployees as of December 21 and the day-shift employees t o work of the day shift, but he was appointed as alterna- as of December 26 constituted further violations of Sec- tiv e unio n s t ew a r d by Crespo af t er t h e st ri k e e n d ed o n tion 8(aXl) and (3) of the Act."~ ~ i .r .. tion . , 8(X 1 and (3) of the Act. 3 , With the exception of Geraldo Rodriguez Rivera, who was held re- Additional post-strike developments show that after sponsible by management, together with Crespo. Sanchz, and Delgado, the Strike was called Off On January 5 there were negoti- of having instigated the strike. These four were never offered reinstate- ations between the Union and management leading to the m e"nt return f the dy-shiftemployes to wok in mi~anu- See G. C. Exhs. II A and 17A. Lopez, however, testified that his return of the day-shift employees to work in mid-Janu- "fellow employees" told him that this type of letter would allow him to return to work. This does not explain the fact that the letters are identical 3 There is no allegation in the complaint concerning this incident and, and leads to my conclusion that in fact management prescribed the form in any event, it was not fully developed or litigated. Therefore I make no the letters were to take. finding whether it constitutes a violation of law. " This would indicate not only that Ramos was a valued employee, "3See, e.g., Pacemaker Yacht Co., a Division ofMission Marine, Inc.. 253 but that he was considered by management as influential with his fellow NLRB 828 (1980). employees. 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD January 6, and he did return to work with the day shift and told Felix Ramos that he had time for him now and about that time. for them to go to the office. Felix Ramos replied that he On January 26, at 3 or 3:30 in the afternoon, Ramos had nothing to discuss because the matter had been re- noticed that a supervisor was working at one of the rou- medied. He added that he was going to wait for Tosado. lette tables.3 8 Ramos was not on duty at the time but In the meantime he was going to watch out for the inter- pursuant to his perception of his obligation as alternate ests of the employees in his role as shop steward. Padin steward he approached the assistant manager of the then banged his fist on the blackjack table and told Felix casino, Pedro Padin, and asked if he could talk to him Ramos that he had to go to the croupier's restroom. about a problem at the roulette table. Padin replied that Felix Ramos replied that he was not going to leave the he had no time to talk to Ramos, adding that he had to casino because he was carrying out his functions as shop wait for additional management personnel to arrive steward.4 He then walked toward an empty table at the before he would have time to speak to Ramos. The latter back of the casino. Padin followed him and said that persisted, saying that the problem existed then, and not Ramos had two alternatives, he could go to the res- later in the evening. Padin then ordered Ramos to go to troom, or he could resign. Ramos said he was not going the croupiers' restroom.39 Ramos obeyed the order and to resign, whereupon Padin suspended him on the spot. went to the restroom 40 where he discussed the matter The suspension was originally supposed to be for 7 with Alberto Guzman Rivera, the treasurer of the Union. days, but on the next day Ramos was told by Guzman Guzman advised Ramos to speak to the gambling inspec- that the suspension was converted to a discharge. On tor about it. Ramos left the restroom and told the inspec- January 28 Padin addressed a memorandum entitled tor, Carlos Troche, about the supervisor working the "Justified Discharge" and explaining that Ramos was dis- roulette table. Troche then went to Padin and told him charged for "insubordination and lack of respect" that the employment of supervisors to work the gam- toward Padin However, the incident outlined in the bling tables was contrary to the regulations of the Tour- memorandum which is identical to the incident as de- ism Department. Troche showed Padin the regulation scribed by Padin in his testimony, bears little relation to ism Department. Troche showed Padin the regulation and Padin said he would discontinue the practice. the several incidents described in the credible testimony and Padin said he would discontinue the practice. of Felix Ramos, Troche, Guzman, and Ruben Ramos. The incident did not end there. Later in the afternoon of x R amo s, Troche, Guman, and Ruben Ramos Even so, the incident as described by Padin and set out Padin and Troche went to the restroom where Ramos and Guzman were taking their break. 1 Padin asked in the January 28 memorandum shows that the discharge and Guzman were taking their break.?4 Padin asked was based at least in part on Ramos' insistence on per- Ramos why he had complained to the inspector. Ramos forming his function as a union steward. Further, con- answered that Padin had no time to talk to him about the stat nt in t aar 2 e r u trary to the statement in the January 28 memorandum incident and he talked to Troche as part of his duties as t discussion of grievances concerning the casino in shop steward. Padin then said that he did have time to th gambling area violated the grievance procedure of speak to the government inspector but he did not have the collective-bargaining agreement, I find that the time to speak to Ramos until 8 p.m. Padin's voice was agreement contains no such provision. It would appear, raised at this time and he was pointing his finger at rather, that Ramos was entirely correct in approaching Ramos. Padin, as he did, to discuss the grievance. Ramos' action At 8 o'clock that evening Ramos had finished work in pursuing the matter with the inspector also appears to and was talking to another employee, Ruben Ramos. be proper, particularly since the inspector immediately Ruben Ramos was working a blackjack table but there went to Padin and told him to stop the unauthorized use were no players at the time.42 Padin came up to them of a supervisor. Since I do not credit Padin's testimony that Ramos was rude and disrespectful, I find that the " There is nothing in the contract about a supervisor working at a January 28 memorandum shows that Ramos was dis- table, but there was no question raised by Respondent that the practice was not contrary to the parties' understanding. charged for ivokng the grievance procedure, and for '* Apparently the casino rules require off-duty croupiers to take their complaining about casino operations to the inspector break in the restroom. from the Department of Tourism. " There is a wide variance in the version of this conversation between Accordingly, based on the credible evidence on this the testimony of Ramos and Padin. In the latter's testimony, he described c i , o crl e lt Ramos as screaming at him in the middle of a crowded casino at the incident I find that Ramos complained about a violation height of the tourist season. However, Padin's testimony was confused, of the parties' practice and the regulations of the Tour- mixing up this incident in the afternoon with one which happened later in ism Department. Padin's conduct when he came into the the evening. My own observations of Ramos, and the testimony on an croupiers' restroom shows his resentment not at Ramos' incident in September 1980 indicate to me that he may have been more cs res t t o forceful in pressing his grievance than he was willing to admit, but his conduct in seeking to discuss the irregularity at the rou- testimony is substantially corroborated by that of the Commonwealth's lette table, but at Ramos' action in complaining to the gambling inspector, Carlos Troche Santiago, who was present. Respond- gambling inspector. Ramos' discharge thus was a viola- ent brought forth only Padin, whose testimony I find to be unreliable. tion of Section 8(a)(l) and (3) of the Act. See Iterboro Therefore I credit the broad outlines of Ramos' testimony and these find- ings are based on that testimony. "4 The testimony of Ramos on this part of the day's events was cor- " In an affidavit which was given in the course of the investigation of roborated by Guzman and undenied by Padin. I accept Ramos' version as this case and which was received in evidence Felix Ramos stated that credible and logical. there were no other union officers in the casino at that time. However, in " I have made these findings on the mutually corroborative stories of his testimony at the hearing he said that Barbosa and another steward Ruben and Felix Ramos. Padin, as I have noted, confused this incident named Roman were there that evening. This discrepancy may be ex- with the earlier exchange in the casino. I do not credit his testimony in plained if these other stewards were in the restroom at that precise time. this matter. This is a logical inference which I find acceptable. 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD January 6, and he did return to work with the day shift and told Felix Ramos that he had time for him now and about that time. for them to go to the office. Felix Ramos replied that he On January 26, at 3 or 3:30 in the afternoon, Ramos had nothing to discuss because the matter had been re- noticed that a supervisor was working at one of the rou- medied. He added that he was going to wait for Tosado. lette tables. 38 Ramos was not on duty at the time but In the meantime he was going to watch out for the inter- pursuant to his perception of his obligation as alternate ests of the employees in his role as shop steward. Padin steward he approached the assistant manager of the then banged his fist on the blackjack table and told Felix casino, Pedro Padin, and asked if he could talk to him Ramos that he had to go to the croupier's restroom. about a problem at the roulette table. Padin replied that Felix Ramos replied that he was not going to leave the he had no time to talk to Ramos, adding that he had to casino because he was carrying out his functions as shop wait for additional management personnel to arrive steward." 3 He then walked toward an empty table at the before he would have time to speak to Ramos. The latter back of the casino. Padin followed him and said that persisted, saying that the problem existed then, and not Ramos had two alternatives, he could go to the res- later in the evening. Padin then ordered Ramos to go to tr o o m , or he could resign. Ramos said he was not going the croupiers' restroom. 39 Ramos obeyed the order and to resign, whereupon Padin suspended him on the spot. went to the restroom 40 where he discussed the matter The suspension was originally supposed to be for 7 with Alberto Guzman Rivera, the treasurer of the Union. d a y s, b u t o n t h e n e x t day Ramos was told by Guzman Guzman advised Ramos to speak to the gambling inspec- t h a t t h e suspension w a s converted to a discharge. On tor about it. Ramos left the restroom and told the inspec- J a n u a r y 2 8 P a d i n a d d r e s s e d a memorandum entitled tor, Carlos Troche, about the supervisor working the " J u st ified Discharge" a n d explaining that Ramos was dis- roulette table. Troche then went to Padin and told him charged f o r "insubordination and lack of respect" that the employment of supervisors to work the gam- t o w a r d P a d i n H o w e v e r t h e i n c i d e n t o u t li n e d i n t h e bling tables was contrary to the regulations of the Tour- memorandum which is identical to the incident as de- ism Department. Troche showed Padin the regulation scribed by Padin in his testimony, bears little relation to ism Department. Troche showed Padin the regulation .. ' ,., .... ,, and Padin said .he would discontinue the practic. the several incidents described in the credible testimony and Padin said he would discontinue the practice^^ ^ ^ ^^ ^ ^ The incident did not end there. Later in the afternoon o Fl R de, by ad an Ramos. Padi andTroce wet tothe estrom were amos Even so, the incident as described by Padin and set out Padin and Troche went to the restroom where Ramos ^ eoadmsosta h icag and uzma wee taing hei brek .4 Pain aked in the January 28 memorandum shows that the discharge and Guzman were taking to the inspector. Ramos was based at least in part on Ramos' insistence on per- Ramos why he had complained to the inspector. Ramos fring hi fucto as a unio stwad p^^her c answered that Padin had no time to talk to him about the fm station as a unuary 28 rmerandum incident and he talked to Troche as part of his duties as ty discussion of grievances concerning the casino in shop steward. Padin then said that he did have time to th gambling area violated the grievance procedure of speak to the government inspector but he did not have the collective-bargaining agreement, I find that the time to speak to Ramos until 8 p.m. Padin's voice was agreement contains no such provision. It would appear, raised at this time and he was pointing his finger at rather, that Ramos was entirely correct in approaching Ramos. Padin, as he did, to discuss the grievance. Ramos' action At 8 o'clock that evening Ramos had finished work in pursuing the matter with the inspector also appears to and was talking to another employee, Ruben Ramos. be proper, particularly since the inspector immediately Ruben Ramos was working a blackjack table but there went to Padin and told him to stop the unauthorized use were no players at the time. 4 2 Padin came up to them of a supervisor. Since I do not credit Padin's testimony that Ramos was rude and disrespectful, I find that the " There is nothing in the contract about a supervisor working at a January 28 memorandum shows that Ramos was dis- table, but there was no question raised by Respondent that the practice hre o n ki t gevc pcdu, d r was not contrarytohe pris u rd charged for invoking the grievance procedure, and for '* Apparently the casino rules require off-duty croupiers to take their complaining about casino Operations to the inspector break in the restroom. from the Department of Tourism. "IThere is a wide variance in the version of this conversation between Accordingly, based on the credible evidence on this the testimony of Ramos and Padin. In the latter's testimony, he described -.1 I i r ii o c» ^ l»: a l * ;ln»;^« Ramos as screaming at him in the middle of a crowded casino at the incident I find that RamOS complained about a Violation height of the tourist season. However, Padin's testimony was confused, of the parties' practice and the regulations of the Tour- mixing up this incident in the afternoon with one which happened later in ism Department. Padin's conduct when he came into the the evening. My own observations of Ramos, and the testimony on an croupiers' restroom shows his resentment not at Ramos' incident in September 1980 indicate to me that he may have been more . . i * . ,. ... , .. . ,, forceful in pressing his grievance than he was willing to admit, but his conduct in seeking to discuss the irregularity at the rou- testimony is substantially corroborated by that of the Commonwealth's lette table, but at Ramos' action in complaining to the gambling inspector, Carlos Troche Santiago, who was present. Respond- gambling inspector. Ramos' discharge thus was a viola- ent brought forth only Padin, whose testimony I find to be unreliable, tion of Section 8(a)(l) and (3) of the Act. See Interboro Therefore I credit the broad outlines of Ramos' testimony and these find- ings are based on that testimony. " 1 The testimony of Ramos on this part of the day's events was cor- In an affidavit which was given in the course of the investigation of roborated by Guzman and undenied by Padin. I accept Ramos' version as this case and which was received in evidence Felix Ramos stated that credible and logical. there were no other union officers in the casino at that time. However, in 1 1 I have made these findings on the mutually corroborative stories of his testimony at the hearing he said that Barbosa and another steward Ruben and Felix Ramos. Padin, as I have noted, confused this incident named Roman were there that evening. This discrepancy may be ex- with the earlier exchange in the casino. I do not credit his testimony in plained if these other stewards were in the restroom at that precise time. this matter. This is a logical inference which I find acceptable. 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD January 6, and he did return to work with the day shift and told Felix Ramos that he had time for him now and about that time. for them to go to the office. Felix Ramos replied that he On January 26, at 3 or 3:30 in the afternoon, Ramos had nothing to discuss because the matter had been re- noticed that a supervisor was working at one of the rou- medied. He added that he was going to wait for Tosado. lette tables. 38 Ramos was not on duty at the time but In the meantime he was going to watch out for the inter- pursuant to his perception of his obligation as alternate ests of the employees in his role as shop steward. Padin steward he approached the assistant manager of the then banged his fist on the blackjack table and told Felix casino, Pedro Padin, and asked if he could talk to him Ramos that he had to go to the croupier's restroom. about a problem at the roulette table. Padin replied that Felix Ramos replied that he was not going to leave the he had no time to talk to Ramos, adding that he had to casino because he was carrying out his functions as shop wait for additional management personnel to arrive steward." 3 He then walked toward an empty table at the before he would have time to speak to Ramos. The latter back of the casino. Padin followed him and said that persisted, saying that the problem existed then, and not Ramos had two alternatives, he could go to the res- later in the evening. Padin then ordered Ramos to go to tr o o m , or he could resign. Ramos said he was not going the croupiers' restroom. 39 Ramos obeyed the order and to resign, whereupon Padin suspended him on the spot. went to the restroom 40 where he discussed the matter The suspension was originally supposed to be for 7 with Alberto Guzman Rivera, the treasurer of the Union. d a y s, b u t o n t h e n e x t day Ramos was told by Guzman Guzman advised Ramos to speak to the gambling inspec- t h a t t h e suspension w a s converted to a discharge. On tor about it. Ramos left the restroom and told the inspec- J a n u a r y 2 8 P a d i n a d d r e s s e d a memorandum entitled tor, Carlos Troche, about the supervisor working the " J u st ified Discharge" a n d explaining that Ramos was dis- roulette table. Troche then went to Padin and told him charged f o r "insubordination and lack of respect" that the employment of supervisors to work the gam- t o w a r d P a d i n H o w e v e r t h e i n c i d e n t o u t li n e d i n t h e bling tables was contrary to the regulations of the Tour- memorandum which is identical to the incident as de- ism Department. Troche showed Padin the regulation scribed by Padin in his testimony, bears little relation to ism Department. Troche showed Padin the regulation .. ' ,., ... ', ,, and Padin said .he would discontinue the practic. the several incidents described in the credible testimony and Padin said he would discontinue the practice.^p ^ ^ The incident did not end there. Later in the afternoon o Fl R de, by ad an Ramos. Padi andTroce wet tothe estrom were amos Even so, the incident as described by Padin and set out Padin and Troche went to the restroom where Ramos ^ eoadmsosta h icag and uzma wee taing hei brek .4 Pain aked in the January 28 memorandum shows that the discharge and Guzman were taking to the inspector. Ramos was based at least in part on Ramos' insistence on per- Ramos why he had complained to the inspector. Ramos fring his function as a union steward. Further, con- answered that Padin had no time to talk to him about the fm station as a unuary 28 rmerandum incident and he talked to Troche as part of his duties as t y discussion of grievances concerning the casino in shop steward. Padin then said that he did have time to th gambling area violated the grievance procedure of speak to the government inspector but he did not have the collective-bargaining agreement, I find that the time to speak to Ramos until 8 p.m. Padin's voice was agreement contains no such provision. It would appear, raised at this time and he was pointing his finger at rather, that Ramos was entirely correct in approaching Ramos. Padin, as he did, to discuss the grievance. Ramos' action At 8 o'clock that evening Ramos had finished work in pursuing the matter with the inspector also appears to and was talking to another employee, Ruben Ramos. be proper, particularly since the inspector immediately Ruben Ramos was working a blackjack table but there went to Padin and told him to stop the unauthorized use were no players at the time. 4 2 Padin came up to them of a supervisor. Since I do not credit Padin's testimony that Ramos was rude and disrespectful, I find that the " There is nothing in the contract about a supervisor working at a January 28 memorandum shows that Ramos was dis- table, but there was no question raised by Respondent that the practice hre o n ki t gevc pcdu, d r was not contrarytohe pris u rd charged for invoking the grievance procedure, and for '* Apparently the casino rules require off-duty croupiers to take their complaining about casino Operations to the inspector break in the restroom. from the Department of Tourism. "IThere is a wide variance in the version of this conversation between Accordingly, based on the credible evidence on this the testimony of Ramos and Padin. In the latter's testimony, he described -.1 I i r ii o c» ^ l«; a l * ;ln»;^« Ramos as screaming at him in the middle of a crowded casino at the incident I find that RamOS complained about a Violation height of the tourist season. However, Padin's testimony was confused, of the parties' practice and the regulations of the Tour- mixing up this incident in the afternoon with one which happened later in ism Department. Padin's conduct when he came into the the evening. My own observations of Ramos, and the testimony on an croupiers' restroom shows his resentment not at Ramos' incident in September 1980 indicate to me that he may have been more . . i * . ,. ... , .. . ,, forceful in pressing his grievance than he was willing to admit, but his conduct in seeking to discuss the irregularity at the rou- testimony is substantially corroborated by that of the Commonwealth's lette table, but at Ramos' action in complaining to the gambling inspector, Carlos Troche Santiago, who was present. Respond- gambling inspector. Ramos' discharge thus was a viola- ent brought forth only Padin, whose testimony I find to be unreliable, tion of Section 8(a)(l) and (3) of the Act. See Interboro Therefore I credit the broad outlines of Ramos' testimony and these find- ings are based on that testimony. 41 The testimony of Ramos on this part of the day's events was cor- In an affidavit which was given in the course of the investigation of roborated by Guzman and undenied by Padin. I accept Ramos' version as this case and which was received in evidence Felix Ramos stated that credible and logical. there were no other union officers in the casino at that time. However, in 1 1 I have made these findings on the mutually corroborative stories of his testimony at the hearing he said that Barbosa and another steward Ruben and Felix Ramos. Padin, as I have noted, confused this incident named Roman were there that evening. This discrepancy may be ex- with the earlier exchange in the casino. I do not credit his testimony in plained if these other stewards were in the restroom at that precise time. this matter. This is a logical inference which I find acceptable. 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD January 6, and he did return to work with the day shift and told Felix Ramos that he had time for him now and about that time. for them to go to the office. Felix Ramos replied that he On January 26, at 3 or 3:30 in the afternoon, Ramos had nothing to discuss because the matter had been re- noticed that a supervisor was working at one of the rou- medied. He added that he was going to wait for Tosado. lette tables. 38 Ramos was not on duty at the time but In the meantime he was going to watch out for the inter- pursuant to his perception of his obligation as alternate ests of the employees in his role as shop steward. Padin steward he approached the assistant manager of the then banged his fist on the blackjack table and told Felix casino, Pedro Padin, and asked if he could talk to him Ramos that he had to go to the croupier's restroom. about a problem at the roulette table. Padin replied that Felix Ramos replied that he was not going to leave the he had no time to talk to Ramos, adding that he had to casino because he was carrying out his functions as shop wait for additional management personnel to arrive steward." 3 He then walked toward an empty table at the before he would have time to speak to Ramos. The latter back of the casino. Padin followed him and said that persisted, saying that the problem existed then, and not Ramos had two alternatives, he could go to the res- later in the evening. Padin then ordered Ramos to go to tr o o m , or he could resign. Ramos said he was not going the croupiers' restroom. 39 Ramos obeyed the order and to resign, whereupon Padin suspended him on the spot. went to the restroom 40 where he discussed the matter The suspension was originally supposed to be for 7 with Alberto Guzman Rivera, the treasurer of the Union. d a y s, b u t o n t h e n e x t day Ramos was told by Guzman Guzman advised Ramos to speak to the gambling inspec- t h a t t h e suspension w a s converted to a discharge. On tor about it. Ramos left the restroom and told the inspec- J a n u a r y 2 8 P a d i n a d d r e s s e d a memorandum entitled tor, Carlos Troche, about the supervisor working the " J u st ified Discharge" a n d explaining that Ramos was dis- roulette table. Troche then went to Padin and told him charged f o r "insubordination and lack of respect" that the employment of supervisors to work the gam- t o w a r d P a d i n H o w e v e r t h e i n c i d e n t o u t li n e d i n t h e bling tables was contrary to the regulations of the Tour- memorandum which is identical to the incident as de- ism Department. Troche showed Padin the regulation scribed by Padin in his testimony, bears little relation to ism Department. Troche showed Padin the regulation .. ' ,., ... ', ,, and Padin said .he would discontinue the practic. the several incidents described in the credible testimony and Padin said he would discontinue the practice.^p ^ ^ The incident did not end there. Later in the afternoon o Fl R de, by ad an Ramos. Padi andTroce wet tothe estrom were amos Even so, the incident as described by Padin and set out Padin and Troche went to the restroom where Ramos ^ eoadmsosta h icag and uzma wee taing hei brek .4 Pain aked in the January 28 memorandum shows that the discharge and Guzman were taking to the inspector. Ramos was based at least in part on Ramos' insistence on per- Ramos why he had complained to the inspector. Ramos frming his function as a union steward. Further, con- answered that Padin had no time to talk to him about the fm station as a unuary 28 rmerandum incident and he talked to Troche as part of his duties as t y discussion of grievances concerning the casino in shop steward. Padin then said that he did have time to th gambling area violated the grievance procedure of speak to the government inspector but he did not have the collective-bargaining agreement, I find that the time to speak to Ramos until 8 p.m. Padin's voice was agreement contains no such provision. It would appear, raised at this time and he was pointing his finger at rather, that Ramos was entirely correct in approaching Ramos. Padin, as he did, to discuss the grievance. Ramos' action At 8 o'clock that evening Ramos had finished work in pursuing the matter with the inspector also appears to and was talking to another employee, Ruben Ramos. be proper, particularly since the inspector immediately Ruben Ramos was working a blackjack table but there went to Padin and told him to stop the unauthorized use were no players at the time. 4 2 Padin came up to them of a supervisor. Since I do not credit Padin's testimony that Ramos was rude and disrespectful, I find that the " There is nothing in the contract about a supervisor working at a January 28 memorandum shows that Ramos was dis- table, but there was no question raised by Respondent that the practice hre o n ki t gevc pcdu, d r was not contrarytohe pris u rd charged for invoking the grievance procedure, and for '* Apparently the casino rules require off-duty croupiers to take their complaining about casino Operations to the inspector break in the restroom. from the Department of Tourism. "IThere is a wide variance in the version of this conversation between Accordingly, based on the credible evidence on this the testimony of Ramos and Padin. In the latter's testimony, he described -.1 I i r ii o c» ^ l«; a l * ;ln»;^« Ramos as screaming at him in the middle of a crowded casino at the incident I find that RamOS complained about a Violation height of the tourist season. However, Padin's testimony was confused, of the parties' practice and the regulations of the Tour- mixing up this incident in the afternoon with one which happened later in ism Department. Padin's conduct when he came into the the evening. My own observations of Ramos, and the testimony on an croupiers' restroom shows his resentment not at Ramos' incident in September 1980 indicate to me that he may have been more . . i * . ,. ... , .. . ,, forceful in pressing his grievance than he was willing to admit, but his conduct in seeking to discuss the irregularity at the rou- testimony is substantially corroborated by that of the Commonwealth's lette table, but at Ramos' action in complaining to the gambling inspector, Carlos Troche Santiago, who was present. Respond- gambling inspector. Ramos' discharge thus was a viola- ent brought forth only Padin, whose testimony I find to be unreliable, tion of Section 8(a)(l) and (3) of the Act. See Interboro Therefore I credit the broad outlines of Ramos' testimony and these find- ings are based on that testimony. 41 The testimony of Ramos on this part of the day's events was cor- In an affidavit which was given in the course of the investigation of roborated by Guzman and undenied by Padin. I accept Ramos' version as this case and which was received in evidence Felix Ramos stated that credible and logical. there were no other union officers in the casino at that time. However, in 1 1 I have made these findings on the mutually corroborative stories of his testimony at the hearing he said that Barbosa and another steward Ruben and Felix Ramos. Padin, as I have noted, confused this incident named Roman were there that evening. This discrepancy may be ex- with the earlier exchange in the casino. I do not credit his testimony in plained if these other stewards were in the restroom at that precise time. this matter. This is a logical inference which I find acceptable. HOTEL HOLIDAY INN DE ISLA VERDE 505 Contractors, Inc., 157 NLRB 1295 (1966); Varied Enter- On the same night, after Ramos had his conversation prises Inc. d/b/a Private Carrier Personnel, 240 NLRB with Padin about the leave, he left the hotel about 11. As 126 (1979). Ramos related the story, a woman who was a guest at the hotel stopped him in the lobby and asked him some 2. Incidents in June and July 1980 questions about the games. He answered her and they After his discharge, in March or April," Ramos was both walked toward the exit. Ramos held the door for called by Attorney Leonardo Llequis. Llequis informed the guest, but did not remain with her after they were Ramos that the Union and Respondent had reached an outside the hotel. He went to his car which was in the agreement on the reinstatement of the night-shift employ- hotel parking lot. ees who had struck on December 20, 45 as well as Ramos' This incident was observed by one of the hotel's secu- situation. Ramos was told to go to the hotel and talk to rity force and a report that Ramos had left the hotel in General Manager Maza. At this meeting Maza told the company of a woman guest was handwritten by the Ramos that the "punishment" had been unjust and that security office and forwarded to Carlos Luna. There is he knew that Ramos was a capable and cooperative em- no written rule in evidence in this case which prohibits ployee. Maza further stated that Ramos could have his casino employees from leaving the hotel with guests. choice of shifts and days off and that he could take a There are rules requiring croupiers to exercise the leave of absence whenever he wanted if he returned to utmost discretion concerning guests and their business. work. Thus I credit Luna's testimony that there was an unwrit- At this time Ramos had another job, as a designer ten rule against employees' leaving the hotel in the com- with the American Fire Sprinkler Corporation in San pany of guests. However, Luna also testified that his cus- Juan. His hours were flexible, and required that he work tomary procedure in matters of this sort4' was to check from 6 or 7 a.m. until early in the afternoon. Thus on his out the report, then to hear the employee's side of the return to work at the casino, he chose the hours from 4 story before issuing a warning or other disciplinary o'clock in the afternoon until midnight, with Saturdays measure. In this case Luna admitted that he did not and Sundays as his days off. These unusual consider- check the report from the security office, did not make ations lead me to conclude, as I have above, that Ramos any independent investigation, and did not ask Ramos for was a versatile and highly regarded employee. 6 an explanation. He summoned Ramos to his office, con- On June 18, 1980, Ramos testified in this proceeding. fronted him with the security office report and told him Shortly after that he requested from Pedro Padin a leave he had violated the rules "in a crass form." of absence to run from July 5 through November 3.4 This interview was followed on July 2 by a memoran- Padin told him to put the request in writing, which he dum from Luna to Ramos entitled "Last chance" in did under date of June 26, 1980. On receiving the request which Luna described the incident with the guest 49 and Padin left the casino to consult with Maza, then re- noting that this violated the rules "in a flagrant manner." turned, and said that the leave was not approved because The memorandum went on to state that this was Ramos' of "problems with other leaves." Padin then added that last chance, and that he would be discharged for any fur- if Ramos had not testified (at this hearing) he would ther violations of the rules. have "enjoyed the favor" of management, but that he In this case I credit Ramos' version of the incident, but had gravely injured Respondent by his testimony. Padin I can understand how the fact that Ramos opened the gave the leave request back to Ramos marked "Not ap- door of the hotel for the guest, then followed her out the proved." door, could be misinterpreted by a security guard. Thus Although Padin did not deny this conversation he did I can find nothing out of the ordinary in the fact that the testify that the reason Ramos was not granted the leave security office reported the incident to Luna. I have al- was that Ramos had been given many privileges, more ready found that the rule alleged to have been violated than other employees. Luna testified on this matter, but here, while not contained in the rules of conduct for said that the reason the leave was not granted was be- croupiers, was consistent with the tenor and spirit of cause Ramos had been granted a leave of absence on those rules. Luna offered no explanation in this case as to aother occasion and that in June they "were not in a po- why he departed from his usual practice in disciplinary sition to give him another." cases of checking the report, investigating the incident, Padin's remarks to Ramos that the reason he was not and listening to the explanation of the accused employee. being granted the leave were clearly discriminatory. By his own testimony, he summoned Ramos to his office, Thus I find that Respondent's action in denying Ramos showed him the report from the security office, and leave without pay in June 1980 is a further violation of issued the warning. Section 8(al1), (3), and (4) of the Act. In view of the absence of any reason for this variance from custom, and in consideration of the timing of the " Ramos was uncertain about this date. At one point he said it was in warning less than 2 weeks after Ramos had first testified March, at another time he recalled the date as April 27. Since I have found that the striking night-shift employees returned to work in March, I find that the events related here also occurred in March." Luna testified that he had taken disciplinary action against other em- " With the exception of the four union officers mentioned above. ployees for the same infraction, but never against a croupier. " See also the letter from Carlos Luna containing a laudatory recom- " The English translation of the memorandum described the incident mendation of Ramos and dated February 7, 1980. as having occurred on June 23. However the Spanish version states that " I rely for the findings of the leave request on the credible testimony it occurred on June 26. The report of the secuty office likewise places of Felix Ramos. Padin did not testify on this issue. the date on June 26. HOTEL HOLIDAY INN DE ISLA VERDE 505 Contractors, Inc., 157 NLRB 1295 (1966); Varied Enter- On the same night, after Ramos had his conversation prises Inc. d/b/a Private Carrier Personnel, 240 NLRB with Padin about the leave, he left the hotel about 11. As 126 (1979). Ramos related the story, a woman who was a guest at the hotel stopped him in the lobby and asked him some 2. Incidents in June and July 1980 questions about the games. He answered her and they After his discharge, in March or April,' Ramos was b o t h w a lk e d t o w a r d t h e e x it. R a m o s h e ld t h e d o o r for called by Attorney Leonardo Llequis. Llequis informed t h e guest, but did not remain with her after they were Ramos that the Union and Respondent had reached an o u t s id e t h e h o t e l. H e w en t to h is c a r w h ic h w a s in t h e agreement on the reinstatement of the night-shift employ- h o te l parking lot. ees who had struck on December 20, 45 as well as Ramos' This incident was observed by one of the hotel's secu- situation. Ramos was told to go to the hotel and talk to rity force and a report that Ramos had left the hotel in General Manager Maza. At this meeting Maza told the company of a woman guest was handwritten by the Ramos that the "punishment" had been unjust and that security office and forwarded to Carlos Luna. There is he knew that Ramos was a capable and cooperative em- no written rule in evidence in this case which prohibits ployee. Maza further stated that Ramos could have his casino employees from leaving the hotel with guests. choice of shifts and days off and that he could take a There are rules requiring croupiers to exercise the leave of absence whenever he wanted if he returned to utmost discretion concerning guests and their business. work. Thus I credit Luna's testimony that there was an unwrit- At this time Ramos had another job, as a designer ten rule against employees' leaving the hotel in the com- with the American Fire Sprinkler Corporation in San pany of guests. However, Luna also testified that his cus- Juan. His hours were flexible, and required that he work tomary procedure in matters of this sort,' was to check from 6 or 7 a.m. until early in the afternoon. Thus on his out the report, then to hear the employee's side of the return to work at the casino, he chose the hours from 4 story before issuing a warning or other disciplinary o'clock in the afternoon until midnight, with Saturdays measure. In this case Luna admitted that he did not and Sundays as his days off. These unusual consider- check the report from the security office, did not make ations lead me to conclude, as I have above, that Ramos any independent investigation, and did not ask Ramos for was a versatile and highly regarded employee. 6 an explanation. He summoned Ramos to his office, con- On June 18, 1980, Ramos testified in this proceeding,. fronted him with the security office report and told him Shortly after that he requested from Pedro Padin a leave he had violated the rules "in a crass form." of absence to run from July 5 through November 3. 47 This interview was followed on July 2 by a memoran- Padin told him to put the request in writing, which he dum from Luna to Ramos entitled "Last chance" in did under date of June 26, 1980. On receiving the request which Luna described the incident with the guest 4 9 and Padin left the casino to consult with Maza, then re- noting that this violated the rules "in a flagrant manner." turned, and said that the leave was not approved because The memorandum went on to state that this was Ramos' of "problems with other leaves." Padin then added that last chance, and that he would be discharged for any fur- if Ramos had not testified (at this hearing) he would ther violations of the rules. have "enjoyed the favor" of management, but that he In this case I credit Ramos' version of the incident, but had gravely injured Respondent by his testimony. Padin I can understand how the fact that Ramos opened the gave the leave request back to Ramos marked "Not ap- door of the hotel for the guest, then followed her out the proved." door, could be misinterpreted by a security guard. Thus Although Padin did not deny this conversation he did I can find nothing out of the ordinary in the fact that the testify that the reason Ramos was not granted the leave security office reported the incident to Luna. I have al- was that Ramos had been given many privileges, more ready found that the rule alleged to have been violated than other employees. Luna testified on this matter, but here, while not contained in the rules of conduct for said that the reason the leave was not granted was be- croupiers, was consistent with the tenor and spirit of cause Ramos had been granted a leave of absence on those rules. Luna offered no explanation in this case as to aother occasion and that in June they "were not in a po- why he departed from his usual practice in disciplinary sition to give him another." cases of checking the report, investigating the incident, Padin's remarks to Ramos that the reason he was not and listening to the explanation of the accused employee. being granted the leave were clearly discriminatory. By his own testimony, he summoned Ramos to his office, Thus I find that Respondent's action in denying Ramos showed him the report from the security office, and leave without pay in June 1980 is a further violation of issued the warning. Section 8(a)l), (3), and (4) of the Act. In view of the absence of any reason for this variance -------ws unertan abut tis dte. t on poit hesaidit ws in from custom, and in consideration of the timing of the March, at another time he recalled the date as April 27. Since I have warning less than 2 weeks after Ramos had first testified found that the striking night-shift employees returned to work in March, I find that the events related here also occurred in March. '" Luna testified that he had taken disciplinary action against other em- " With the exception of the four union officers mentioned above. ployees for the same infraction, but never against a croupier. " See also the letter from Carlos Luna containing a laudatory recom- "9 The English translation of the memorandum described the incident mendation of Ramos and dated February 7, 1980. as having occurred on June 23. However the Spanish version states that " I rely for the findings of the leave request on the credible testimony it occurred on June 26. The report of the security office likewise places of Felix Ramos. Padin did not testify on this issue. the date on June 26. HOTEL HOLIDAY INN DE ISLA VERDE 505 Contractors, Inc., 157 NLRB 1295 (1966); Varied Enter- On the same night, after Ramos had his conversation prises Inc. d/b/a Private Carrier Personnel, 240 NLRB with Padin about the leave, he left the hotel about 11. As 126 (1979). Ramos related the story, a woman who was a guest at the hotel stopped him in the lobby and asked him some 2. Incidents in June and July 1980 questions about the games. He answered her and they After his discharge, in March or April,' Ramos was b o t h w a lk e d t o w a r d t h e e x it. R a m o s h e ld t h e d o o r for called by Attorney Leonardo Llequis. Llequis informed t h e guest, but did not remain with her after they were Ramos that the Union and Respondent had reached an o u t s id e t h e h o t e l. H e w en t to h is c a r w h ic h w a s in t h e agreement on the reinstatement of the night-shift employ- h o te l parking lot. ees who had struck on December 20, 45 as well as Ramos' This incident was observed by one of the hotel's secu- situation. Ramos was told to go to the hotel and talk to rity force and a report that Ramos had left the hotel in General Manager Maza. At this meeting Maza told the company of a woman guest was handwritten by the Ramos that the "punishment" had been unjust and that security office and forwarded to Carlos Luna. There is he knew that Ramos was a capable and cooperative em- no written rule in evidence in this case which prohibits ployee. Maza further stated that Ramos could have his casino employees from leaving the hotel with guests. choice of shifts and days off and that he could take a There are rules requiring croupiers to exercise the leave of absence whenever he wanted if he returned to utmost discretion concerning guests and their business. work. Thus I credit Luna's testimony that there was an unwrit- At this time Ramos had another job, as a designer ten rule against employees' leaving the hotel in the com- with the American Fire Sprinkler Corporation in San pany of guests. However, Luna also testified that his cus- Juan. His hours were flexible, and required that he work tomary procedure in matters of this sort,' was to check from 6 or 7 a.m. until early in the afternoon. Thus on his out the report, then to hear the employee's side of the return to work at the casino, he chose the hours from 4 story before issuing a warning or other disciplinary o'clock in the afternoon until midnight, with Saturdays measure. In this case Luna admitted that he did not and Sundays as his days off. These unusual consider- check the report from the security office, did not make ations lead me to conclude, as I have above, that Ramos any independent investigation, and did not ask Ramos for was a versatile and highly regarded employee. 6 an explanation. He summoned Ramos to his office, con- On June 18, 1980, Ramos testified in this proceeding,. fronted him with the security office report and told him Shortly after that he requested from Pedro Padin a leave he had violated the rules "in a crass form." of absence to run from July 5 through November 3. 47 This interview was followed on July 2 by a memoran- Padin told him to put the request in writing, which he dum from Luna to Ramos entitled "Last chance" in did under date of June 26, 1980. On receiving the request which Luna described the incident with the guest 4 9 and Padin left the casino to consult with Maza, then re- noting that this violated the rules "in a flagrant manner." turned, and said that the leave was not approved because The memorandum went on to state that this was Ramos' of "problems with other leaves." Padin then added that last chance, and that he would be discharged for any fur- if Ramos had not testified (at this hearing) he would ther violations of the rules. have "enjoyed the favor" of management, but that he In this case I credit Ramos' version of the incident, but had gravely injured Respondent by his testimony. Padin I can understand how the fact that Ramos opened the gave the leave request back to Ramos marked "Not ap- door of the hotel for the guest, then followed her out the proved." door, could be misinterpreted by a security guard. Thus Although Padin did not deny this conversation he did I can find nothing out of the ordinary in the fact that the testify that the reason Ramos was not granted the leave security office reported the incident to Luna. I have al- was that Ramos had been given many privileges, more ready found that the rule alleged to have been violated than other employees. Luna testified on this matter, but here, while not contained in the rules of conduct for said that the reason the leave was not granted was be- croupiers, was consistent with the tenor and spirit of cause Ramos had been granted a leave of absence on those rules. Luna offered no explanation in this case as to aother occasion and that in June they "were not in a po- why he departed from his usual practice in disciplinary sition to give him another." cases of checking the report, investigating the incident, Padin's remarks to Ramos that the reason he was not and listening to the explanation of the accused employee. being granted the leave were clearly discriminatory. By his own testimony, he summoned Ramos to his office, Thus I find that Respondent's action in denying Ramos showed him the report from the security office, and leave without pay in June 1980 is a further violation of issued the warning. Section 8(a)l), (3), and (4) of the Act. In view of the absence of any reason for this variance -------ws unertan abut tis dte. t on poit hesaidit ws in from custom, and in consideration of the timing of the March, at another time he recalled the date as April 27. Since I have warning less than 2 weeks after Ramos had first testified found that the striking night-shift employees returned to work in March, I find that the events related here also occurred in March. '" Luna testified that he had taken disciplinary action against other em- " With the exception of the four union officers mentioned above. ployees for the same infraction, but never against a croupier. " See also the letter from Carlos Luna containing a laudatory recom- "9 The English translation of the memorandum described the incident mendation of Ramos and dated February 7, 1980. as having occurred on June 23. However the Spanish version states that " I rely for the findings of the leave request on the credible testimony it occurred on June 26. The report of the security office likewise places of Felix Ramos. Padin did not testify on this issue. the date on June 26. HOTEL HOLIDAY INN DE ISLA VERDE 505 Contractors, Inc., 157 NLRB 1295 (1966); Varied Enter- On the same night, after Ramos had his conversation prises Inc. d/b/a Private Carrier Personnel, 240 NLRB with Padin about the leave, he left the hotel about 11. As 126 (1979). Ramos related the story, a woman who was a guest at the hotel stopped him in the lobby and asked him some 2. Incidents in June and July 1980 questions about the games. He answered her and they After his discharge, in March or April,' Ramos was b o t h w a lk e d t o w a r d t h e e x it. R a m o s h e ld t h e d o o r for called by Attorney Leonardo Llequis. Llequis informed t h e guest, but did not remain with her after they were Ramos that the Union and Respondent had reached an o u t s id e t h e h o t e l. H e w en t to h is c a r w h ic h w a s in t h e agreement on the reinstatement of the night-shift employ- h o te l parking lot. ees who had struck on December 20, 45 as well as Ramos' This incident was observed by one of the hotel's secu- situation. Ramos was told to go to the hotel and talk to rity force and a report that Ramos had left the hotel in General Manager Maza. At this meeting Maza told the company of a woman guest was handwritten by the Ramos that the "punishment" had been unjust and that security office and forwarded to Carlos Luna. There is he knew that Ramos was a capable and cooperative em- no written rule in evidence in this case which prohibits ployee. Maza further stated that Ramos could have his casino employees from leaving the hotel with guests. choice of shifts and days off and that he could take a There are rules requiring croupiers to exercise the leave of absence whenever he wanted if he returned to utmost discretion concerning guests and their business. work. Thus I credit Luna's testimony that there was an unwrit- At this time Ramos had another job, as a designer ten rule against employees' leaving the hotel in the com- with the American Fire Sprinkler Corporation in San pany of guests. However, Luna also testified that his cus- Juan. His hours were flexible, and required that he work tomary procedure in matters of this sort,' was to check from 6 or 7 a.m. until early in the afternoon. Thus on his out the report, then to hear the employee's side of the return to work at the casino, he chose the hours from 4 story before issuing a warning or other disciplinary o'clock in the afternoon until midnight, with Saturdays measure. In this case Luna admitted that he did not and Sundays as his days off. These unusual consider- check the report from the security office, did not make ations lead me to conclude, as I have above, that Ramos any independent investigation, and did not ask Ramos for was a versatile and highly regarded employee. 6 an explanation. He summoned Ramos to his office, con- On June 18, 1980, Ramos testified in this proceeding,. fronted him with the security office report and told him Shortly after that he requested from Pedro Padin a leave he had violated the rules "in a crass form." of absence to run from July 5 through November 3. 47 This interview was followed on July 2 by a memoran- Padin told him to put the request in writing, which he dum from Luna to Ramos entitled "Last chance" in did under date of June 26, 1980. On receiving the request which Luna described the incident with the guest 4 9 and Padin left the casino to consult with Maza, then re- noting that this violated the rules "in a flagrant manner." turned, and said that the leave was not approved because The memorandum went on to state that this was Ramos' of "problems with other leaves." Padin then added that last chance, and that he would be discharged for any fur- if Ramos had not testified (at this hearing) he would ther violations of the rules. have "enjoyed the favor" of management, but that he In this case I credit Ramos' version of the incident, but had gravely injured Respondent by his testimony. Padin I can understand how the fact that Ramos opened the gave the leave request back to Ramos marked "Not ap- door of the hotel for the guest, then followed her out the proved." door, could be misinterpreted by a security guard. Thus Although Padin did not deny this conversation he did I can find nothing out of the ordinary in the fact that the testify that the reason Ramos was not granted the leave security office reported the incident to Luna. I have al- was that Ramos had been given many privileges, more ready found that the rule alleged to have been violated than other employees. Luna testified on this matter, but here, while not contained in the rules of conduct for said that the reason the leave was not granted was be- croupiers, was consistent with the tenor and spirit of cause Ramos had been granted a leave of absence on those rules. Luna offered no explanation in this case as to aother occasion and that in June they "were not in a po- why he departed from his usual practice in disciplinary sition to give him another." cases of checking the report, investigating the incident, Padin's remarks to Ramos that the reason he was not and listening to the explanation of the accused employee. being granted the leave were clearly discriminatory. By his own testimony, he summoned Ramos to his office, Thus I find that Respondent's action in denying Ramos showed him the report from the security office, and leave without pay in June 1980 is a further violation of issued the warning. Section 8(a)l), (3), and (4) of the Act. In view of the absence of any reason for this variance -------ws unertan abut tis dte. t on poit hesaidit ws in from custom, and in consideration of the timing of the March, at another time he recalled the date as April 27. Since I have warning less than 2 weeks after Ramos had first testified found that the striking night-shift employees returned to work in March, I find that the events related here also occurred in March. '" Luna testified that he had taken disciplinary action against other em- " With the exception of the four union officers mentioned above. ployees for the same infraction, but never against a croupier. " See also the letter from Carlos Luna containing a laudatory recom- "9 The English translation of the memorandum described the incident mendation of Ramos and dated February 7, 1980. as having occurred on June 23. However the Spanish version states that " I rely for the findings of the leave request on the credible testimony it occurred on June 26. The report of the security office likewise places of Felix Ramos. Padin did not testify on this issue. the date on June 26. 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in this case, and particularly in the light of Padin's re- work days and to have Saturdays and Sundays off. This marks to Ramos about betrayal of Respondent through practice was described credibly by Ruben Ramos, Jose that testimony, I find that the variance from Luna's usual Crespo,55 and Felix Ramos. practice, and the severity of the warning s0 flowed from Felix Ramos, moreover, had always worked days since Respondent's resentment at Ramos for his prior testimo- he started at the casino in January 1977." As of April ny in this case. Therefore I find that this warning is an 1980, after his first discharge he had Maza's promise that additional violation of Section 8(a)(), (3), and (4) of the he could choose his own schedule and his days off. Act. Thereafter Ramos worked for a few months on a 4 p.m. to midnight schedule with Saturdays and Sundays off. In 3. Ramos' shift change and second discharge July he requested that he change to the 12:30 to 8 sched- At the resumption of this hearing on August 4, 1980, ule and retained the same days off. He returned from his the General Counsel amended the complaint in Case 24- vacation on September 1 to the same schedule. CA-4269 to allege the violations of the Act which have Hector Rivera had been the casino's assistant manager been discussed in the section of this Decision just con- for some 6 or 7 months before Padin's departure in eluded. Felix Ramos testified concerning these allega- August and his own elevation to the position of acting tions at the resumed hearing. Ramos testified that he manager. As assistant manager, Rivera had charge of took some vacation time in August and returned to work scheduling, casino operations, and personnel matters. He on September 1. testified that in that capacity he instituted a number of In the meantime, on August 26, Ramos was elected schedule changes designed to assure a fair distribution of acting president of the Union. 5' On September 4 or 5 weekend days off for all employees. He also stated that Ramos, accompanied by Attorney Jorge Farinacci, ap- he changed a number of shifts. proached the acting manager of the casino, Hector Respondent entered a chart into evidence to support Rivera Rivera,52 and explained to him that they had a Rivera's testimony on schedule changes. The chart letter addressed to Maza notifying him of Ramos' elec- shows all schedule changes including shifts and days off tion as acting president of the Union. They had been for the period from April 11, 1980, to November 1, 1980. unable to locate Maza so they gave the letter to Rivera. I have examined this chart for the period from April 11 According to Ramos, Rivera read the letter and then put through September 12, 1980, which seemed to me to be it in his pocket. Farinacci testified that Rivera took the the dates relevant to the issues in this case, and I find letter"s and put it into a drawer in his desk. Rivera that the data contained therein do not support Rivera's denied that the meeting took place, and stated that he testimony either that he attempted to equalize the week- did not know of Ramos' election until September 19 or end days off or that he systematically changed employ- 20." ees' shifts. Whatever happened to the letter of September 5, I With respect to days off, the chart shows that as of credit the testimony of Farinacci that he told Ramos- April 4 there were four employees who had Saturdays Acosta and Luna on September 3 that Ramos was the and Sundays off. On April 11 three of those employees acting president, and I credit the testimony of Farinacci had their days off changed. There were only seven em- and Ramos that they told Rivera on the night of Septem- ployees whose days off were changed to Saturdays and ber 5 that same thing. For reasons given below I do not Sundays, and in all but two of those cases, the changes credit Rivera on significant issues in this case. to Saturdays and Sundays were only for periods of 1 to 2 The significance of all this is the fact that as the result weeks. Ruben Ramos had those days off from September of an agreement between Tosado and the Union's first 5 through September 12, when his days off were president, Ruben Ramos, the president was entitled to changed again to Sunday and Monday. Edwin Feliciano was changed to weekend days off on May 23, then re- " Luna testified that he had checked with the security office about turned to Sunday and Monday on June 6. Miguel previous violations of rules, and the July 2 memorandum vaguely alluded to prior offenes, but I do not credit Luna and I find that prior violations Medina enjoyed weekend days off from July 4 to 18 of the rules by Ramos have not been established. when he was assigned Thursday and Friday as days off. " There are intimations in the record that this change in leadership Raymond Flores had Saturdays and Sundays off from was not without some internal conflict in the Union and that Crespo was July 18 to August . Luis Serra was one of the three em- contesting the change. These internal disputes are not really relevant here since Ramos had at least de facto title to the office he claimed. I presume ployees whose days were changed from Saturday and that this change in leadership was the reason for the replacement of At- Sunday on April 11. His days were changed back to Sat- torney Llequis by Attorney Farinacci. urday and Sunday on July 23 and he remained on that " Padin had left the casino in August. Rivera was appointed acting schedule through September 12. Miguel Barbosa was manager at the end of August, and was named manager in September 1980. Farinacci described this incident as happening on September 5, moved to a Saturday and Sunday schedule on August 22 Ramos said it was on the 4th. Other testimony indicates that Farinacci where he remained through September 12. was in the casino on the 5th, so that date is more probably correct, but These figures make it clear that there was no effort to the discrepancy is minimal. equalize weekend days off among the croupiers. Even if A Along with a copy addressed to Padin as casino manager. Farinacci ualize weekend days off among the croupiers. Even if also said that he notified Luna and Attorney Ramos-Acosta of the change and Ramos' election at a meeting on September 3. According to Farin- Crespo preferred to work nights, but on his accession to the presi- acci, Ramos-Acosta told him to send a letter informing Respondent of dency in November 1979 his days off were changed to Saturday and this change. Sunday. 14 At another point in his testimony Rivera said that Ramos gave him a " Of the 24 names on the Union's seniority list as of November 8, letter on September 14 informing him of Ramos' election. 1978, Felix Ramos was number five. 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in this case, and particularly in the light of Padin's re- work days and to have Saturdays and Sundays off. This marks to Ramos about betrayal of Respondent through practice was described credibly by Ruben Ramos, Jose that testimony, I find that the variance from Luna's usual Crespo, " and Felix Ramos. practice, and the severity of the warnings 0 flowed from Felix Ramos, moreover, had always worked days since Respondent's resentment at Ramos for his prior testimo- he started at the casino in January 1977. 6 As of April ny in this case. Therefore I find that this warning is an 1980, after his first discharge he had Maza's promise that additional violation of Section 8(a)l), (3), and (4) of the he could choose his own schedule and his days off. Act. Thereafter Ramos worked for a few months on a 4 p.m. to midnight schedule with Saturdays and Sundays off. In 3. Ramos' shift change and second discharge July he requested that he change to the 12:30 to 8 sched- At the resumption of this hearing on August 4, 1980, ule and retained the same days off. He returned from his the General Counsel amended the complaint in Case 24- vacation on September 1 to the same schedule. CA-4269 to allege the violations of the Act which have Hector Rivera had been the casino's assistant manager been discussed in the section of this Decision just con- for some 6 or 7 months before Padin's departure in eluded. Felix Ramos testified concerning these allega- August and his own elevation to the position of acting tions at the resumed hearing. Ramos testified that he manager. As assistant manager, Rivera had charge of took some vacation time in August and returned to work scheduling, casino operations, and personnel matters. He on September 1. testified that in that capacity he instituted a number of In the meantime, on August 26, Ramos was elected schedule changes designed to assure a fair distribution of acting president of the Union.51 On September 4 or 5 weekend days off for all employees. He also stated that Ramos, accompanied by Attorney Jorge Farinacci, ap- he changed a number of shifts. proached the acting manager of the casino, Hector Respondent entered a chart into evidence to support Rivera Rivera,"5 and explained to him that they had a Rivera's testimony on schedule changes. The chart letter addressed to Maza notifying him of Ramos' elec- shows all schedule changes including shifts and days off tion as acting president of the Union. They had been for the period from April 11, 1980, to November 1, 1980. unable to locate Maza so they gave the letter to Rivera. I have examined this chart for the period from April 11 According to Ramos, Rivera read the letter and then put through September 12, 1980, which seemed to me to be it in his pocket. Parinacci testified that Rivera took the the dates relevant to the issues in this case, and I find letter"3 and put it into a drawer in his desk. Rivera that the data contained therein do not support Rivera's denied that the meeting took place, and stated that he testimony either that he attempted to equalize the week- did not know of Ramos' election until September 19 or end days off or that he systematically changed employ- 20. M 4ees' shifts. Whatever happened to the letter of September 5, I With respect to days off, the chart shows that as of credit the testimony of Farinacci that he told Ramos- April 4 there were four employees who had Saturdays Acosta and Luna on September 3 that Ramos was the and Sundays off. On April 11 three of those employees acting president, and I credit the testimony of Farinacci had their days off changed. There were only seven em- and Ramos that they told Rivera on the night of Septem- ployees whose days off were changed to Saturdays and ber 5 that same thing. For reasons given below I do not Sundays, and in all but two of those cases, the changes credit Rivera on significant issues in this case. to Saturdays and Sundays were only for periods of 1 to 2 The significance of all this is the fact that as the result weeks. Ruben Ramos had those days off from September of an agreement between Tosado and the Union's first 5 through September 12, when his days off were president, Ruben Ramos, the president was entitled to changed again to Sunday and Monday. Edwin Feliciano ------- ~~~~~~~~~~was changed to weekend days off on May 23, then re- " Luna testified that he had checked with the security office about wturnch tn Sunday and Mdnday on Myn2 6 Mitnrel previous violations of rules, and the July 2 memorandum vaguely alluded t u r n e d t o Sunday a n d Monday On June 6. Miguel to prior offenes, but I do not credit Luna and I find that prior violations Medina enjoyed weekend days off from July 4 to 18 of the rules by Ramos have not been established. when he was assigned Thursday and Friday as days off. " There are intimations in the record that this change in leadership Raymond Flores had Saturdays and Sundays off from was not without some internal conflict in the Union and that Crespo was July 18 to August 1. Luis Serra was one Of the three em- contesting the change. These internal disputes are not really relevant here sice Ramos had at least de facto title to the office he claimed. I presume ployees whose days were changed from Saturday and that this change in leadership was the reason for the replacement of At- Sunday on April 11. His days were changed back to Sat- torney Llequis by Attorney Farinacci. urday and Sunday on July 23 and he remained on that " Padin had lefi the casino in August. Rivera was appointed acting schedule through September 12. Miguel Barbosa was manager at the end of August, and was named manager in September 1980. Farinacci described this incident as happening on September 5, moved to a Saturday and Sunday schedule On August 22 Ramow said it was on the 4th. Other testimony indicates that Farinacci where he remained through September 12. was in the casino on the 5th, so that date is more probably correct, but These figures make it clear that there was no effort to the discrepancy is minimal. equalize weekend days off among the croupiers. Even if I Along with a copy arddressed to Padin as caino manager. Faninacci also said that he notified Luna and Attorney Ramos-Acosta of the change and Ramos' election at a meeting on September 3. According to Farin- " Crespo preferred to work nights, but on his accession to the prcsi- acci, Ramos-Acosta told him to send a letter informing Respondent of dency in November 1979 his days off were changed to Saturday and (his change. Sunday. 14At another point in his testimony Rivera said that Ramos gave him a " Of the 24 names on the Union's seniority list as of November 8, letter on September 14 informing him of Ramos' election. 1978, Felix Ramos was number five. 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in this case, and particularly in the light of Padin's re- work days and to have Saturdays and Sundays off. This marks to Ramos about betrayal of Respondent through practice was described credibly by Ruben Ramos, Jose that testimony, I find that the variance from Luna's usual Crespo, " and Felix Ramos. practice, and the severity of the warnings 0 flowed from Felix Ramos, moreover, had always worked days since Respondent's resentment at Ramos for his prior testimo- he started at the casino in January 1977. 8 As of April ny in this case. Therefore I find that this warning is an 1980, after his first discharge he had Maza's promise that additional violation of Section 8(a)l), (3), and (4) of the he could choose his own schedule and his days off. Act. Thereafter Ramos worked for a few months on a 4 p.m. to midnight schedule with Saturdays and Sundays off. In 3. Ramos' shift change and second discharge July he requested that he change to the 12:30 to 8 sched- At the resumption of this hearing on August 4, 1980, ule and retained the same days off. He returned from his the General Counsel amended the complaint in Case 24- vacation on September 1 to the same schedule. CA-4269 to allege the violations of the Act which have Hector Rivera had been the casino's assistant manager been discussed in the section of this Decision just con- for some 6 or 7 months before Padin's departure in eluded. Felix Ramos testified concerning these allega- August and his own elevation to the position of acting tions at the resumed hearing. Ramos testified that he manager. As assistant manager, Rivera had charge of took some vacation time in August and returned to work scheduling, casino operations, and personnel matters. He on September 1. testified that in that capacity he instituted a number of In the meantime, on August 26, Ramos was elected schedule changes designed to assure a fair distribution of acting president of the Union.51 On September 4 or 5 weekend days off for all employees. He also stated that Ramos, accompanied by Attorney Jorge Farinacci, ap- he changed a number of shifts. proached the acting manager of the casino, Hector Respondent entered a chart into evidence to support Rivera Rivera,52 and explained to him that they had a Rivera's testimony on schedule changes. The chart letter addressed to Maza notifying him of Ramos' elec- shows all schedule changes including shifts and days off tion as acting president of the Union. They had been for the period from April 11, 1980, to November 1, 1980. unable to locate Maza so they gave the letter to Rivera. I have examined this chart for the period from April 11 According to Ramos, Rivera read the letter and then put through September 12, 1980, which seemed to me to be it in his pocket. Parinacci testified that Rivera took the the dates relevant to the issues in this case, and I find letter"3 and put it into a drawer in his desk. Rivera that the data contained therein do not support Rivera's denied that the meeting took place, and stated that he testimony either that he attempted to equalize the week- did not know of Ramos' election until September 19 or end days off or that he systematically changed employ- 20. M 4ees' shifts. Whatever happened to the letter of September 5, I With respect to days off, the chart shows that as of credit the testimony of Farinacci that he told Ramos- April 4 there were four employees who had Saturdays Acosta and Luna on September 3 that Ramos was the and Sundays off. On April 11 three of those employees acting president, and I credit the testimony of Farinacci had their days off changed. There were only seven em- and Ramos that they told Rivera on the night of Septem- ployees whose days off were changed to Saturdays and ber 5 that same thing. For reasons given below I do not Sundays, and in all but two of those cases, the changes credit Rivera on significant issues in this case. to Saturdays and Sundays were only for periods of 1 to 2 The significance of all this is the fact that as the result weeks. Ruben Ramos had those days off from September of an agreement between Tosado and the Union's first 5 through September 12, when his days off were president, Ruben Ramos, the president was entitled to changed again to Sunday and Monday. Edwin Feliciano ------- ~~~~~~~~~~was changed to weekend days off on May 23, then re- " Luna testified that he had checked with the security office about wturned tn Sunday and Mdnday on Myn2 6 Mitnrel previous violations of rules, and the July 2 memorandum vaguely alluded t u r n e d t o Sunda a n d Monday On June 6. Miguel to prior offenes, but I do not credit Luna and I find that prior violations Medina enjoyed weekend days off from July 4 to 18 of the rules by Ramos have not been established. when he was assigned Thursday and Friday as days off. " There are intimations in the record that this change in leadership Raymond Flores had Saturdays and Sundays off from was not without some internal conflict in the Union and that Crespo was July 18 to August 1. Luis Serra was one Of the three em- contesting the change. These internal disputes are not really relevant here sice Ramos had at least de facto title to the office he claimed. I presume ployees whose days were changed from Saturday and that this change in leadership was the reason for the replacement of At- Sunday on April 11. His days were changed back to Sat- torney Llequis by Attorney Farinacci. urday and Sunday on July 23 and he remained on that " Padin had left the casino in August. Rivera was appointed acting schedule through September 12. Miguel Barbosa was manager at the end of August, and was named manager in September 1980. Farinacci described this incident as happening on September 5, moved to a Saturday and Sunday schedule On August 22 Ramow said it was on the 4th. Other testimony indicates that Farinacci where he remained through September 12. was in the casino on the 5th, so that date is more probably correct, but These figures make it clear that there was no effort to the discrepancy is minimal. equ al iz e weekend days off among the croupiers. Even if I Along with a copy arddressed to Padin as caino manager. Faninacci also said that he notified Luna and Attorney Ramos-Acosta of the change and Ramos' election at a meeting on September 3. According to Farin- " Crespo preferred to work nights, but on his accession to the prcsi- acci, Ramos-Acosta told him to send a letter informing Respondent of dency in November 1979 his days off were changed to Saturday and (his change. Sunday. 14At another point in his testimony Rivera said that Ramos gave him a " Of the 24 names on the Union's seniority list as of November 8, letter on September 14 informing him of Ramos' election. 1978, Felix Ramos was number five. 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in this case, and particularly in the light of Padin's re- work days and to have Saturdays and Sundays off. This marks to Ramos about betrayal of Respondent through practice was described credibly by Ruben Ramos, Jose that testimony, I find that the variance from Luna's usual Crespo, " and Felix Ramos. practice, and the severity of the warnings 0 flowed from Felix Ramos, moreover, had always worked days since Respondent's resentment at Ramos for his prior testimo- he started at the casino in January 1977. 8 As of April ny in this case. Therefore I find that this warning is an 1980, after his first discharge he had Maza's promise that additional violation of Section 8(a)l), (3), and (4) of the he could choose his own schedule and his days off. Act. Thereafter Ramos worked for a few months on a 4 p.m. to midnight schedule with Saturdays and Sundays off. In 3. Ramos' shift change and second discharge July he requested that he change to the 12:30 to 8 sched- At the resumption of this hearing on August 4, 1980, ule and retained the same days off. He returned from his the General Counsel amended the complaint in Case 24- vacation on September 1 to the same schedule. CA-4269 to allege the violations of the Act which have Hector Rivera had been the casino's assistant manager been discussed in the section of this Decision just con- for some 6 or 7 months before Padin's departure in eluded. Felix Ramos testified concerning these allega- August and his own elevation to the position of acting tions at the resumed hearing. Ramos testified that he manager. As assistant manager, Rivera had charge of took some vacation time in August and returned to work scheduling, casino operations, and personnel matters. He on September 1. testified that in that capacity he instituted a number of In the meantime, on August 26, Ramos was elected schedule changes designed to assure a fair distribution of acting president of the Union.51 On September 4 or 5 weekend days off for all employees. He also stated that Ramos, accompanied by Attorney Jorge Farinacci, ap- he changed a number of shifts. proached the acting manager of the casino, Hector Respondent entered a chart into evidence to support Rivera Rivera,52 and explained to him that they had a Rivera's testimony on schedule changes. The chart letter addressed to Maza notifying him of Ramos' elec- shows all schedule changes including shifts and days off tion as acting president of the Union. They had been for the period from April 11, 1980, to November 1, 1980. unable to locate Maza so they gave the letter to Rivera. I have examined this chart for the period from April 11 According to Ramos, Rivera read the letter and then put through September 12, 1980, which seemed to me to be it in his pocket. Parinacci testified that Rivera took the the dates relevant to the issues in this case, and I find letter"3 and put it into a drawer in his desk. Rivera that the data contained therein do not support Rivera's denied that the meeting took place, and stated that he testimony either that he attempted to equalize the week- did not know of Ramos' election until September 19 or end days off or that he systematically changed employ- 20. M 4ees' shifts. Whatever happened to the letter of September 5, I With respect to days off, the chart shows that as of credit the testimony of Farinacci that he told Ramos- April 4 there were four employees who had Saturdays Acosta and Luna on September 3 that Ramos was the and Sundays off. On April 11 three of those employees acting president, and I credit the testimony of Farinacci had their days off changed. There were only seven em- and Ramos that they told Rivera on the night of Septem- ployees whose days off were changed to Saturdays and ber 5 that same thing. For reasons given below I do not Sundays, and in all but two of those cases, the changes credit Rivera on significant issues in this case. to Saturdays and Sundays were only for periods of 1 to 2 The significance of all this is the fact that as the result weeks. Ruben Ramos had those days off from September of an agreement between Tosado and the Union's first 5 through September 12, when his days off were president, Ruben Ramos, the president was entitled to changed again to Sunday and Monday. Edwin Feliciano ------- ~~~~~~~~~~was changed to weekend days off on May 23, then re- " Luna testified that he had checked with the security office about wturned tn Sunday and Mdnday on Myn2 6 Mitnrel previous violations of rules, and the July 2 memorandum vaguely alluded t u r n e d t o Sunda a n d Monday On June 6. Miguel to prior offenes, but I do not credit Luna and I find that prior violations Medina enjoyed weekend days off from July 4 to 18 of the rules by Ramos have not been established. when he was assigned Thursday and Friday as days off. " There are intimations in the record that this change in leadership Raymond Flores had Saturdays and Sundays off from was not without some internal conflict in the Union and that Crespo was July 18 to August 1. Luis Serra was one Of the three em- contesting the change. These internal disputes are not really relevant here sice Ramos had at least de facto title to the office he claimed. I presume ployees whose days were changed from Saturday and that this change in leadership was the reason for the replacement of At- Sunday on April 11. His days were changed back to Sat- torney Llequis by Attorney Farinacci. urday and Sunday on July 23 and he remained on that " Padin had left the casino in August. Rivera was appointed acting schedule through September 12. Miguel Barbosa was manager at the end of August, and was named manager in September 1980. Farinacci described this incident as happening on September 5, moved to a Saturday and Sunday schedule On August 22 Ramow said it was on the 4th. Other testimony indicates that Farinacci where he remained through September 12. was in the casino on the 5th, so that date is more probably correct, but These figures make it clear that there was no effort to the discrepancy is minimal. equ al iz e weekend days off among the croupiers. Even if I Along with a copy arddressed to Padin as caino manager. Faninacci also said that he notified Luna and Attorney Ramos-Acosta of the change and Ramos' election at a meeting on September 3. According to Farin- " Crespo preferred to work nights, but on his accession to the prcsi- acci, Ramos-Acosta told him to send a letter informing Respondent of dency in November 1979 his days off were changed to Saturday and (his change. Sunday. 14At another point in his testimony Rivera said that Ramos gave him a " Of the 24 names on the Union's seniority list as of November 8, letter on September 14 informing him of Ramos' election. 1978, Felix Ramos was number five. HOTEL HOLIDAY INN DE ISLA VERDE 507 one discounts four employees listed as terminated as of ings, in words which a witness has uttered in his native April 11 there were 26 employees who never had week- Spanish, indeed in an idiomatic Spanish, in response to a ends off during this April-September period. Rivera's question which is phrased in English, then translated into statement that it was his "main idea for all of the em- Spanish. Thus I am unaware of whatever shades of ployees to be able to enjoy the week-ends" is demonstra- meaning may reside in the Spanish word which was bly inaccurate. translated by the interpreter in this case as "notified." The chart shows that Rivera's further statement that The word "notify" is defined in Webster's New Colle- he wanted to allow employees to enjoy "the most advan- giate Dictionary, 1973 ed., G. & C. Merriam Company, tageous shift, which is the day shift" is similarly in error. Springfield, Massachusetts as ". obs: to point out; 2. to Excluding Felix Ramos and the four employees terminat- give a notice or report the occurrence of. . 3. to give ed as of April 11, on April 4 there were 15 employees on formal notice to ." In my view, the third meaning is the day shift, and 17 on nights. Of all these only two, what Rivera meant when he told Ramos that he was Hector Lopez and Rafael Rossi, were moved from nights notified" that Ramos' shift and days off were to be to days. Lopez was changed from the night shift to the chang ed. Frm th s I cn inf an dd ay ind that River a day shift on April 18, but on May 9 was moved back tochanged. From this I can infer and I find that Rivera the night shift. Rossi was changed from nights to days was notified b someone or ones higher in the hierarchy on August 29. Three employees (excluding Felix Ramos) of management than he. Since at this time Rivera was at were moved from days to nights. Ariel Cortes was least the acting casino manager the only person higher changed on September 5, but on September 19 he was than he in Respondent's management structure were promoted to supervisory rank. Miguel Barbosa was Luna and Maza. Since I have already found that Rivera transferred from days to nights on April 18 but changed was not truthful when he asserted that he changed back to days on August 22. Fernando Paulino was trans- schedules and days off to share the benefits of weekends ferred to a mixed day-night shift from the day shift on off and day shifts, I do not credit his statement that he April 11, then to the night shift on April 18. Raymond alone decided to change Ramos' shift and days off so Flores presents a unique situation. He transferred from that another employee could enjoy those advantages. 57 days to nights to mixed day-night shifts a total of 7 times Luna did not testify on this issue and Maza, of course, from April 6 to August 1. In contrast to Flores' situation, did not testify at all. seven employees showed no changes either in their days There is, then, no credible reason in this record as to off or their shifts during this period, and 17 additional why Luna or Maza "notified" Rivera to change Ramos' employees kept the same shifts although their days off schedule. But I have already noted, and credited testimo- changed in this period. ny that Padin had expressed to Ramos the hostility felt All of this shows clearly that there was no attempt toward him by management on account of his treachery made during the time Rivera was setting the schedules in testifying at this hearing in June. If management felt for the casino employees to equalize the disadvantages of that way in June, it is unlikely that this hostility would night-shift work, or to spread more equitably the advan- have abated when Ramos again testified in support of the tage of weekends off. further allegations against Respondent at the August por- Rivera testified that the schedule for employees was tion of the hearings. Moreover, Respondent was aware worked out by him and posted on Wednesdays for the of the practice agreed upon between Ruben Ramos and following week or 2 weeks. In September, Rivera stated, Toao, of e ttn reient to p Tosado, of permitting the union president to pick his he noticed that Felix Ramos "had been enjoying Satur- ssan w a o t a- days and Sundays off with a comfortable day shift" so he sh ift s a n d d ay s ofd Respondent was aware of the determined "to place another person in order for them to angement Maza had made with Ramos in Apl, and the enjoy that shift" and to place Felix Ramos on the night latter's second job, and Respondent was aware, having shift. been notified by Farinacci on September 3, of Ramos' Rivera testified that he posted this schedule for Ramos election as acting president of the Union. In the absence on Wednesday, September 3, but Ramos stated that on of any legitimate business reason, or of any credible justi- Friday, September 5, Rivera came up to him at a black- fication for this action, I infer and find that Ramos was jack table and told him that he was to report to the night reassigned on September 5 to retaliate against his further shift on the next night, Saturday. Ramos remonstrated testimony at this hearing in August and his elevation to with Rivera, pointing out that he had already made other the acting presidency of the Union. This conduct consti- arrangements for the weekend; that his other job, which tutes a further violation of Section 8(aXI), (3), and (4) of was known to management, made it impossible for him the Act. to work the night shift; and that both his position as While Ramos and Rivera were discussing the reassign- acting union president and his April agreement with ment on the night of September 5, they were joined by Maza would accord him the privilege of choosing his Attorney Farinacci. They then agreed that Ramos would shift and days off. To all of this Rivera responded that not be required to work on Saturday, September 6, but there was nothing personal in it, but he, Rivera, had been "notified" about it and that Ramos had to come to " Respondent's schedule chart shows that no one was moved from work the next night. nights to days in the week of September 5 or 12, or in several weeks fol- The appearance in the English language record of this lowing. Ruben Ramos who was already on the day shift had his days off changed in the week of September 5 from Tuesday and Wednesday to word, "notified," points up one of the real problems in Saturday and Sunday, but that only lasted for I week, as he was changed extracting the meaning, particularly the nuances or shad- to Sunday and Monday in the week of September 12. HOTEL HOLIDAY INN DE ISLA VERDE 507 one discounts four employees listed as terminated as of ings, in words which a witness has uttered in his native April 11 there were 26 employees who never had week- Spanish, indeed in an idiomatic Spanish, in response to a ends off during this April-September period. Rivera's question which is phrased in English, then translated into statement that it was his "main idea for all of the em- Spanish. Thus I am unaware of whatever shades of ployees to be able to enjoy the week-ends" is demonstra- meaning may reside in the Spanish word which was bly inaccurate. translated by the interpreter in this case as "notified." The chart shows that Rivera's further statement that The word "notify" is defined in Webster's New Colle- he wanted to allow employees to enjoy "the most advan- giate Dictionary, 1973 ed., G. & C. Merriam Company, tageous shift, which is the day shift" is similarly in error. Springfield, Massachusetts as "1. obs: to point out; 2. to Excluding Felix Ramos and the four employees terminat- give a notice or report the occurrence of . .; 3. to give ed as of April I1, on April 4 there were 15 employees on formal notice to .. " In my view, the third meaning is the day shift, and 17 on nights. Of all these only two, what Rivera meant when he told Ramos that he was Hector Lopez and Rafael Rossi, were moved from nights .. ta R o si a d o wer t be to days. Lopez was changed from the night shift to the h no t gf ed. t h at R a I o s n in h f t a n d d ay s o f r w e r e t o b e day shift on April 18, but on May 9 was moved back to wchanged. From this I can infer and I find that Rivera the night shift. Rossi was changed from nights to days w as no t l fi ed ^ someone or ones higher in the hierarchy on August 29. Three employees (excluding Felix Ramos) o f management than he. Since at this time Rivera was at were moved from days to nights. Ariel Cortes was least the acting casino manager the only person higher changed on September 5, but on September 19 he was than he in Respondent's management structure were promoted to supervisory rank. Miguel Barbosa was Luna and Maza. Since I have already found that Rivera transferred from days to nights on April 18 but changed was not truthful when he asserted that he changed back to days on August 22. Fernando Paulino was trans- schedules and days off to share the benefits of weekends ferred to a mixed day-night shift from the day shift on off and day shifts, I do not credit his statement that he April II, then to the night shift on April 18. Raymond alone decided to change Ramos' shift and days off so Flores presents a unique situation. He transferred from that another employee could enjoy those advantages."5 days to nights to mixed day-night shifts a total of 7 times Luna did not testify on this issue and Maza, of course, from April 6 to August 1. In contrast to Flores' situation, did not testify at all. seven employees showed no changes either in their days There is, then, no credible reason in this record as to off or their shifts during this period, and 17 additional why Luna or Maza "notified" Rivera to change Ramos' employees kept the same shifts although their days off schedule. But I have already noted, and credited testimo- changed in this period. ny that Padin had expressed to Ramos the hostility felt All of this shows clearly that there was no attempt toward him by management on account of his treachery made during the time Rivera was setting the schedules in testifying at this hearing in June. If management felt for the casino employees to equalize the disadvantages of that way in June, it is unlikely that this hostility would night-shift work, or to spread more equitably the advan- have abated when Ramos again testified in support of the tage of weekends off. further allegations against Respondent at the August por- Rivera testified that the schedule for employees was tion of the hearings. Moreover, Respondent was aware worked out by him and posted on Wednesdays for the of t pce n Rubn R s following week or 2 weeks. In September, Rivera stated, to o per th e u n o n pre sid en pi ck hi he noticed that Felix Ramos "had been enjoying Satur- t s a d da off. Resonen w re days and Sundays off with a comfortable day shift" so he s hl ft s an d d ay s gee, Respondent was aware of the ar- determined "to place another person in order for them to fangement Maza had made with Ramos in Apnl, and the enjoy that shift" and to place Felix Ramos on the night la t t e r's sec o n d j o b , an d Respondent was aware, having shift. been notified by Farinacci on September 3, of Ramos' Rivera testified that he posted this schedule for Ramos election as acting president of the Union. In the absence on Wednesday, September 3, but Ramos stated that on of any legitimate business reason, or of any credible justi- Friday, September 5, Rivera came up to him at a black- fication for this action, I infer and find that Ramos was jack table and told him that he was to report to the night reassigned on September 5 to retaliate against his further shift on the next night, Saturday. Ramos remonstrated testimony at this hearing in August and his elevation to with Rivera, pointing out that he had already made other the acting presidency of the Union. This conduct consti- arrangements for the weekend; that his other job, which tutes a further violation of Section 8(aX(), (3), and (4) of was known to management, made it impossible for him the Act. to work the night shift; and that both his position as While Ramos and Rivera were discussing the reassign- acting union president and his April agreement with ment on the night of September 5, they were joined by Maza would accord him the privilege of choosing his Attorney Farinacci. They then agreed that Ramos would shift and days off. To all of this Rivera responded that not be required to work on Saturday, September 6, but there was nothing personal in it, but he, Rivera, had been "notified" about it and that Ramos had to come to Respondent's schedule chart shows that no one was moved from Work the next night. nights to days in the week of September 5 or 12, or in several weeks fol- The appearance in the English language record of this 'low'"g Ruben Ramo s w h o was alr eady on t he d a y sh if had his d a y s o ff changed in the week of September 5 from Tuesday and Wednesday to word, "notified," points Up One Of the real problems in Saturday and Sunday, but that only lasted for I week, as he was changed extracting the meaning, particularly the nuances or shad- to Sunday and Monday in the week of September 12. HOTEL HOLIDAY INN DE ISLA VERDE 507 one discounts four employees listed as terminated as of ings, in words which a witness has uttered in his native April 11 there were 26 employees who never had week- Spanish, indeed in an idiomatic Spanish, in response to a ends off during this April-September period. Rivera's question which is phrased in English, then translated into statement that it was his "main idea for all of the em- Spanish. Thus I am unaware of whatever shades of ployees to be able to enjoy the week-ends" is demonstra- meaning may reside in the Spanish word which was bly inaccurate. translated by the interpreter in this case as "notified." The chart shows that Rivera's further statement that The word "notify" is defined in Webster's New Colle- he wanted to allow employees to enjoy "the most advan- giate Dictionary, 1973 ed., G. & C. Merriam Company, tageous shift, which is the day shift" is similarly in error. Springfield, Massachusetts as "1. obs: to point out; 2. to Excluding Felix Ramos and the four employees terminat- give a notice or report the occurrence of . .; 3. to give ed as of April I11 on April 4 there were 15 employees on formal notice to .. " In my view, the third meaning is the day shift, and 17 on nights. Of all these only two, what Rivera meant when he told Ramos that he was Hector Lopez and Rafael Rossi, were moved from nights .. ta R o si a d o wer t be to days. Lopez was changed from the night shift to the h no t gf ed. t h at R a m o sI in h f t a n d d ay s o f r w e r e t o b e day shift on April 18, but on May 9 was moved back to wchanged. From this I can infer and I find that Rivera the night shift. Rossi was changed from nights to days w as no t l fi ed ^ someone or ones higher in the hierarchy on August 29. Three employees (excluding Felix Ramos) o f management than he. Since at this time Rivera was at were moved from days to nights. Ariel Cortes was least the acting casino manager the only person higher changed on September 5, but on September 19 he was than he in Respondent's management structure were promoted to supervisory rank. Miguel Barbosa was Luna and Maza. Since I have already found that Rivera transferred from days to nights on April 18 but changed was not truthful when he asserted that he changed back to days on August 22. Fernando Paulino was trans- schedules and days off to share the benefits of weekends ferred to a mixed day-night shift from the day shift on off and day shifts, I do not credit his statement that he April II, then to the night shift on April 18. Raymond alone decided to change Ramos' shift and days off so Flores presents a unique situation. He transferred from that another employee could enjoy those advantages."5 days to nights to mixed day-night shifts a total of 7 times Luna did not testify on this issue and Maza, of course, from April 6 to August 1. In contrast to Flores' situation, did not testify at all. seven employees showed no changes either in their days There is, then, no credible reason in this record as to off or their shifts during this period, and 17 additional why Luna or Maza "notified" Rivera to change Ramos' employees kept the same shifts although their days off schedule. But I have already noted, and credited testimo- changed in this period. ny that Padin had expressed to Ramos the hostility felt All of this shows clearly that there was no attempt toward him by management on account of his treachery made during the time Rivera was setting the schedules in testifying at this hearing in June. If management felt for the casino employees to equalize the disadvantages of that way in June, it is unlikely that this hostility would night-shift work, or to spread more equitably the advan- have abated when Ramos again testified in support of the tage of weekends off. further allegations against Respondent at the August por- Rivera testified that the schedule for employees was tion of the hearings. Moreover, Respondent was aware worked out by him and posted on Wednesdays for the of t pce n Rubn R s following week or 2 weeks. In September, Rivera stated, to o per th e u n o n pre sid en pi ck hi he noticed that Felix Ramos "had been enjoying Satur- t s a d da off. Resonen w re days and Sundays off with a comfortable day shift" so he s hl ft s an d d ay s gee, Respondent was aware of the ar- determined "to place another person in order for them to fangement Maza had made with Ramos in Apnl, and the enjoy that shift" and to place Felix Ramos on the night la t t e r's sec o n d j o b , an d Respondent was aware, having shift. been notified by Farinacci on September 3, of Ramos' Rivera testified that he posted this schedule for Ramos election as acting president of the Union. In the absence on Wednesday, September 3, but Ramos stated that on of any legitimate business reason, or of any credible justi- Friday, September 5, Rivera came up to him at a black- fication for this action, I infer and find that Ramos was jack table and told him that he was to report to the night reassigned on September 5 to retaliate against his further shift on the next night, Saturday. Ramos remonstrated testimony at this hearing in August and his elevation to with Rivera, pointing out that he had already made other the acting presidency of the Union. This conduct consti- arrangements for the weekend; that his other job, which tutes a further violation of Section 8(aX(), (3), and (4) of was known to management, made it impossible for him the Act. to work the night shift; and that both his position as While Ramos and Rivera were discussing the reassign- acting union president and his April agreement with ment on the night of September 5, they were joined by Maza would accord him the privilege of choosing his Attorney Farinacci. They then agreed that Ramos would shift and days off. To all of this Rivera responded that not be required to work on Saturday, September 6, but there was nothing personal in it, but he, Rivera, had been "notified" about it and that Ramos had to come to Respondent's schedule chart shows that no one was moved from Work the next night. nights to days in the week of September 5 or 12, or in several weeks fol- The appearance in the English language record of this 'low'"g Ruben Ramos w ho was alr eady on t he day shift had his day s off changed in the week of September 5 from Tuesday and Wednesday to word, "notified," points Up One Of the real problems in Saturday and Sunday, but that only lasted for I week, as he was changed extracting the meaning, particularly the nuances or shad- to Sunday and Monday in the week of September 12. HOTEL HOLIDAY INN DE ISLA VERDE 507 one discounts four employees listed as terminated as of ings, in words which a witness has uttered in his native April 11 there were 26 employees who never had week- Spanish, indeed in an idiomatic Spanish, in response to a ends off during this April-September period. Rivera's question which is phrased in English, then translated into statement that it was his "main idea for all of the em- Spanish. Thus I am unaware of whatever shades of ployees to be able to enjoy the week-ends" is demonstra- meaning may reside in the Spanish word which was bly inaccurate. translated by the interpreter in this case as "notified." The chart shows that Rivera's further statement that The word "notify" is defined in Webster's New Colle- he wanted to allow employees to enjoy "the most advan- giate Dictionary, 1973 ed., G. & C. Merriam Company, tageous shift, which is the day shift" is similarly in error. Springfield, Massachusetts as "1. obs: to point out; 2. to Excluding Felix Ramos and the four employees terminat- give a notice or report the occurrence of . .; 3. to give ed as of April I11 on April 4 there were 15 employees on formal notice to .. " In my view, the third meaning is the day shift, and 17 on nights. Of all these only two, what Rivera meant when he told Ramos that he was Hector Lopez and Rafael Rossi, were moved from nights .. ta R o si a d o wer t be to days. Lopez was changed from the night shift to the h no t gf ed. t h at R a m o sI in h f t a n d d ay s o f r w e r e t o b e day shift on April 18, but on May 9 was moved back to wchanged. From this I can infer and I find that Rivera the night shift. Rossi was changed from nights to days w as no t l fi ed ^ someone or ones higher in the hierarchy on August 29. Three employees (excluding Felix Ramos) o f management than he. Since at this time Rivera was at were moved from days to nights. Ariel Cortes was least the acting casino manager the only person higher changed on September 5, but on September 19 he was than he in Respondent's management structure were promoted to supervisory rank. Miguel Barbosa was Luna and Maza. Since I have already found that Rivera transferred from days to nights on April 18 but changed was not truthful when he asserted that he changed back to days on August 22. Fernando Paulino was trans- schedules and days off to share the benefits of weekends ferred to a mixed day-night shift from the day shift on off and day shifts, I do not credit his statement that he April II, then to the night shift on April 18. Raymond alone decided to change Ramos' shift and days off so Flores presents a unique situation. He transferred from that another employee could enjoy those advantages."5 days to nights to mixed day-night shifts a total of 7 times Luna did not testify on this issue and Maza, of course, from April 6 to August 1. In contrast to Flores' situation, did not testify at all. seven employees showed no changes either in their days There is, then, no credible reason in this record as to off or their shifts during this period, and 17 additional why Luna or Maza "notified" Rivera to change Ramos' employees kept the same shifts although their days off schedule. But I have already noted, and credited testimo- changed in this period. ny that Padin had expressed to Ramos the hostility felt All of this shows clearly that there was no attempt toward him by management on account of his treachery made during the time Rivera was setting the schedules in testifying at this hearing in June. If management felt for the casino employees to equalize the disadvantages of that way in June, it is unlikely that this hostility would night-shift work, or to spread more equitably the advan- have abated when Ramos again testified in support of the tage of weekends off. further allegations against Respondent at the August por- Rivera testified that the schedule for employees was tion of the hearings. Moreover, Respondent was aware worked out by him and posted on Wednesdays for the of t pce n Rubn R s following week or 2 weeks. In September, Rivera stated, to o per th e u n o n pre sid en pi ck hi he noticed that Felix Ramos "had been enjoying Satur- t s a d da off. Resonen w re days and Sundays off with a comfortable day shift" so he s hl ft s an d d ay s o f g e Respondent was aware of the ar- determined "to place another person in order for them to fangement Maza had made with Ramos in Apnl, and the enjoy that shift" and to place Felix Ramos on the night latter's sec o n d j o b , an d Respondent was aware, having shift. been notified by Farinacci on September 3, of Ramos' Rivera testified that he posted this schedule for Ramos election as acting president of the Union. In the absence on Wednesday, September 3, but Ramos stated that on of any legitimate business reason, or of any credible justi- Friday, September 5, Rivera came up to him at a black- fication for this action, I infer and find that Ramos was jack table and told him that he was to report to the night reassigned on September 5 to retaliate against his further shift on the next night, Saturday. Ramos remonstrated testimony at this hearing in August and his elevation to with Rivera, pointing out that he had already made other the acting presidency of the Union. This conduct consti- arrangements for the weekend; that his other job, which tutes a further violation of Section 8(aX(), (3), and (4) of was known to management, made it impossible for him the Act. to work the night shift; and that both his position as While Ramos and Rivera were discussing the reassign- acting union president and his April agreement with ment on the night of September 5, they were joined by Maza would accord him the privilege of choosing his Attorney Farinacci. They then agreed that Ramos would shift and days off. To all of this Rivera responded that not be required to work on Saturday, September 6, but there was nothing personal in it, but he, Rivera, had been "notified" about it and that Ramos had to come to Respondent's schedule chart shows that no one was moved from Work the next night. nights to days in the week of September 5 or 12, or in several weeks fol- The appearance in the English language record of this 'low'"g Ruben Ramos w ho was alr eady on t he day shift had his days off changed in the week of September 5 from Tuesday and Wednesday to word, "notified," points Up One Of the real problems in Saturday and Sunday, but that only lasted for I week, as he was changed extracting the meaning, particularly the nuances or shad- to Sunday and Monday in the week of September 12. 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would begin his new schedule on the night shift, with of the Board on behalf of Felix Ramos. Later that after- Tuesdays and Wednesdays off, on Sunday, September 7. noon Farinacci and Ramos attended an arbitration hear- It was the practice at the casino that one employee ing at the Commonwealth Department of Labor involv- could swap shifts with another provided that the substi- ing the prior discharge of an employee named Pastrana. tute was qualified and that prior approval of manage- Representing the casino at this hearing were Carlos Luna ment was obtained. On September 5 Ramos informed and Attorney Francisco Ramos-Acosta. Rivera that it was impossible for him to work the late There is some conflict in the testimony of Farinacci shift because of his other part-time job, but that he and Ramos on the one hand, and Luna and Ramos- would change shifts with another employee, Eugenio Acosta on the other, over what was said and done con- Rosario Rexach. Rosario was equally as skilled as Ramos cerning the charge which had been filed earlier in the and Rivera accepted the swap for the 5 days beginning day. I do not find it necessary to resolve the questions of on September 11. credibility growing out of this conflict because it is un- On Sunday, September 7, Ramos called another em- disputed that Farinacci gave a copy of the charge to ployee, Anibal Colon Hernandez, and asked him to sub- Ramos-Acosta. The latter informed Luna of the contents stitute for that I night. Colon agreed and Ramos called of the charge either by telling him orally, or by giving Supervisor Abelardo Garcia and informed him of the him a copy. Thus Respondent was aware of the matter substitution. 58 Colon worked that night and Ramos him- on that afternoon. self worked the night shift on Monday, September 8. That evening Ramos reported to the night shift at the Tuesday and Wednesday, September 9 and 10, were casino. His timecard which was received in evidence Ramos' days off under his new schedule. shows that he punched in at 8:27 p.m. On September 11, Ramos was working the day shift Because of the practice in the casino of relieving crou- under his agreement with Rosario which had been ap- piers as described above in connection with the incident proved by Rivera. About 2:30 in the afternoon Rivera between Padi and Ramos, it was the the custom for su- told Ramos that the change that Ramos and Rosario had pervisors to schedule some employees for a break at the worked out could no longer continue because "they no beginning of their shift. This was done on a rotating longer wanted it." Who "they" were was not explained basis so that on alternative days or nights a croupier in the record, but I infer and find that, as with the would either begin work at the beginning of the shift, or change of shift, the orders to discontinue the arrange- would begin one-half hour or so after that time. On Sep- ment between Ramos and Rosario came from above, tember 11 Ramos had been scheduled to begin work at either Maza or Luna. the beginning of his shift. Of course it had been Rosario either „a or.~ Ln .i. . i.and not Ramos who actually worked the night shift on In his testimony, Rivera asserted that he had author- a nt ms h tu or the night shft on September 11. The supervisor in charge on September ized the swap between Rosario and Ramos, but only for September 11. The supervisor in charge on September ized thtween Roro and Ramos, d t oy for 12, Rafael Castillo Rodriguez, was aware of that, and he 2 days, not for a week. Rivera did not deny the conver- scheduled Ramos to begin work at the start of the night scheduled Ramos to begin work at the start of the night sation with Ramos outlined in the previous paragraph, shift at 8:30 p.m September 12. Ramos however, and I note that Thursday, September 11, was only the shift at 8:30 p.m. on September 12 Ramos, however, and I note that Thursday, September 11, was only the acting on his understanding of the existing practice, did first day of the swap. Thus Rivera contradicted his own not immediately report to work, but was present in the testimony, a further indication of his unreliability as a cano a sort time after 8: credible witness. Rosario was also informed of this deci- according to Juan Rivera, Cas- Between 8:30 and 8:35, according to Juan Rivera, Cas- sion and he worked his regular day shift on September tillo and Ramos had a conversation close to the table 12. . ... . . where Rivera was eating. Rivera was not busy at the While this incident was not alleged in the complaint as time. In fact he had nothing to do, and was able to give a separate and distinct violation, the matter has been his full attention to the conversation. Castillo began by fully litigated in this proceeding and Respondent is not instructing Ramos to go to work because his shift had al- prejudiced by a separate finding on this matter. Accord- ready started. Ramos answered that he did not have to ingly, I find that the decision to cancel the swap between begin because he had done so the previous night. Castillo Rosario and Ramos was made by Maza or Luna, and then said that Ramos had not worked the previous night that the reason that decision was made was the same as and to get to work. the reason for the original change in shift and days off Ramos then began to argue with Castillo, asking if for Ramos, in retaliation for his testimony in this pro- there were something personal that Castillo had against ceeding, and his election as acting president of the him. Castillo continued to order Ramos to begin work. Union. I find this abrogation of the arrangement between Rosario and Ramos to be a separate Ramos to be a separate and additional viola- mos himself testified that he had reported to work and had a con- tion of Section 8(a)(1), (3), and (4) of the Act. versation with Castillo at 8:25 p.m. This is contradicted by the timecard On September 12, at noon,"5 Attorney Farinacci filed showing that Ramos had clocked in at 8:27 and must have encountered Castillo some minutes later. Ramos' entire testimony on this incident with the charge in Case 24-CA-4381 with the Regional Office Castillo s defensuve clntradictory ntired etimony on this incident with Castillo is defensive, contradictory, and marked by self-justification which is not warranted by the facts. While I find that Ramos' description " Garcia denied that he had been notified of the substitution, but raised of events later that evening is credible, I do not credit his version of the no objection at the time. Resolution of this credibility issue is not neces- conversation with Castillo shortly after 8:30. 1 also had trouble with Cas- sary to the resolution of the issues herein. tillo's credibility, so I have relied for the facts on this incident on the s According to the date stamp imprinted by the Board's Regional credible testimony of Juan Rivera Melendez, a cashier who works part Office. time at the casino and is not a member of the bargaining unit here. 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would begin his new schedule on the night shift, with of the Board on behalf of Felix Ramos. Later that after- Tuesdays and Wednesdays off, on Sunday, September 7. noon Farinacci and Ramos attended an arbitration hear- It was the practice at the casino that one employee ing at the Commonwealth Department of Labor involv- could swap shifts with another provided that the substi- ing the prior discharge of an employee named Pastrana. tute was qualified and that prior approval of manage- Representing the casino at this hearing were Carlos Luna ment was obtained. On September 5 Ramos informed and Attorney Francisco Ramos-Acosta. Rivera that it was impossible for him to work the late There is some conflict in the testimony of Farinacci shift because of his other part-time job, but that he and Ramos on the one hand, and Luna and Ramos- would change shifts with another employee, Eugenio Acosta on the other, over what was said and done con- Rosario Rexach. Rosario was equally as skilled as Ramos cerning the charge which had been filed earlier in the and Rivera accepted the swap for the 5 days beginning day. I do not find it necessary to resolve the questions of on September 11. credibility growing out of this conflict because it is un- On Sunday, September 7, Ramos called another em- disputed that Farinacci gave a copy of the charge to ployee, Anibal Colon Hernandez, and asked him to sub- Ramos-Acosta. The latter informed Luna of the contents stitute for that 1 night. Colon agreed and Ramos called of the charge either by telling him orally, or by giving Supervisor Abelardo Garcia and informed him of the h im a copy. T h u s Respondent was aware of the matter substitution. 58 Colon worked that night and Ramos him- on that afternoon. self worked the night shift on Monday, September 8. That evening Ramos reported to the night shift at the Tuesday and Wednesday, September 9 and 10, were casino. His timecard which was received in evidence Ramos' days off under his new schedule. sh o w s t h a t h e punched in at 8:27 p.m. On September 11, Ramos was working the day shift Because of the practice in the casino of relieving crou- under his agreement with Rosario which had been ap- piers as described above in connection with the incident proved by Rivera. About 2:30 in the afternoon Rivera between Padin and Ramos, it was the the custom for su- told Ramos that the change that Ramos and Rosario had pervisors to schedule some employees for a break at the worked out could no longer continue because "they no beginning of their shift. This was done on a rotating longer wanted it." Who "they" were was not explained b as is so that on alternative days or nights a croupier in the record, but I infer and find that, as with the w o u ld e it h er begin w o r k at t h e beginning of the shift, or change of shift, the orders to discontinue the arrange- w o ul d begin one-half hour or so after that time. On Sep- ment between Ramos and Rosario came from above, tember 11 Ramos had been scheduled to begin work at either Maza or Luna. t h e beginning of his shift. Of course it had been Rosario ,,.... „* . j .. . i. i. j .1 and not Ramos who actually worked the night shift on In his testimony, Rivera asserted that he had author- and not R wt .,,, ,' „ . , „ i. . , r~~September 11. The supervisor in charge on September ized the swap between Rosario and Ramos, but only for Sp bI the Rodrisor in chare on September 2 das, ot or awee. Rveradidnotdenytheconer- 12, Rafael Castillo Rodriguez, was aware of that, and he sato wt R amo out k Rln e ^ di n o d t h e previous n parag raph,- scheduled Ramos to begin work at the start of the night sanIon with Ramos outlined in the previous paragraph, ift at 8=30 p.m. on September 12. Ramos, however, and I note that Thursday, September 11Rc was only the acting on his understanding of the existing practice, did first day of the swap. Thus Rivera contradicted his own n^ immediately report to work, but was present in the testimony, a further indication of his unreliability as a ^no im aeort time after 8:30.wp credible witness. Rosario was also informed of this deci- ci a so timn to 8a30r60 sionand e woked is rgula dayshif on epteber Between 8:30 and 8:35, according to Juan Rivera, Cas- sion and he worked his regular day shift on September Ramos had a conversation close to the table where Rivera was eating. Rivera was not busy at the While this incident was not alleged in the complaint as time. In fact he had nothing to do, and was able to give a separate and distinct violation, the matter has been his full attention to the conversation. Castillo began by fully litigated in this proceeding and Respondent is not instructing Ramos to go to work because his shift had al- prejudiced by a separate finding on this matter. Accord- ready started. Ramos answered that he did not have to ingly, I find that the decision to cancel the swap between begin because he had done so the previous night. Castillo Rosario and Ramos was made by Maza or Luna, and then said that Ramos had not worked the previous night that the reason that decision was made was the same as and to get to work. the reason for the original change in shift and days off Ramos then began to argue with Castillo, asking if for Ramos, in retaliation for his testimony in this pro- there were something personal that Castillo had against ceeding, and his election as acting president of the him. Castillo continued to order Ramos to begin work. Union. I find this abrogation of the arrangement between Rosario and Ramos to be a separate and additional viola- Ramos himself testified that he had reported to work and had a con- tion of Section 8(a)(l), (3), and (4) of the Act. versation with Castillo at 8:25 p.m. This is contradicted by the timecard On September 12, at noon, 59 Attorney Farinacci filed showing that Ramos had clocked in at 8:27 and must have encountered the i harge -i.-..- ;_ e <--~IA /-i A AIOI .. »« Rio-^ - fice /r Castillo some minutes later. Ramos' entire testimony on this incident with the Charge in Case 24-CA-4381 With the Regional Office Castillo is defensive, contradictory, and marked by self-justification which is not warranted by the facts. While I find that Ramos' description " Garcia denied that he had been notified of the substitution, but raised of events later that evening is credible, I do not credit his version of the no objection at the time. Resolution of this credibility issue is not neces- conversation with Castillo shortly after 8:30. I also had trouble with Cas- sary to the resolution of the issues herein,.tillo's credibility, so I have relied for the facts on this incident on the "9 According to the date stamp imprinted by the Board's Regional credible testimony of Juan Rivera Melendez, a cashier who works part Office. time at the casino and is not a member of the bargaining unit here. 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would begin his new schedule on the night shift, with of the Board on behalf of Felix Ramos. Later that after- Tuesdays and Wednesdays off, on Sunday, September 7. noon Farinacci and Ramos attended an arbitration hear- It was the practice at the casino that one employee ing at the Commonwealth Department of Labor involv- could swap shifts with another provided that the substi- ing the prior discharge of an employee named Pastrana. tute was qualified and that prior approval of manage- Representing the casino at this hearing were Carlos Luna ment was obtained. On September 5 Ramos informed and Attorney Francisco Ramos-Acosta. Rivera that it was impossible for him to work the late There is some conflict in the testimony of Farinacci shift because of his other part-time job, but that he and Ramos on the one hand, and Luna and Ramos- would change shifts with another employee, Eugenio Acosta on the other, over what was said and done con- Rosario Rexach. Rosario was equally as skilled as Ramos cerning the charge which had been filed earlier in the and Rivera accepted the swap for the 5 days beginning day. I do not find it necessary to resolve the questions of on September 11. credibility growing out of this conflict because it is un- On Sunday, September 7, Ramos called another em- disputed that Farinacci gave a copy of the charge to ployee, Anibal Colon Hernandez, and asked him to sub- Ramos-Acosta. The latter informed Luna of the contents stitute for that 1 night. Colon agreed and Ramos called of the charge either by telling him orally, or by giving Supervisor Abelardo Garcia and informed him of the h im a copy. Thus Respondent was aware of the matter substitution. 58 Colon worked that night and Ramos him- on that afternoon. self worked the night shift on Monday, September 8. That evening Ramos reported to the night shift at the Tuesday and Wednesday, September 9 and 10, were casino. His timecard which was received in evidence Ramos' days off under his new schedule. sh o w s t h a t h e punched in at 8:27 p.m. On September 11, Ramos was working the day shift Because of the practice in the casino of relieving crou- under his agreement with Rosario which had been ap- piers as described above in connection with the incident proved by Rivera. About 2:30 in the afternoon Rivera between Padin and Ramos, it was the the custom for su- told Ramos that the change that Ramos and Rosario had pervisors to schedule some employees for a break at the worked out could no longer continue because "they no beginning of their shift. This was done on a rotating longer wanted it." Who "they" were was not explained b as is so that on alternative days or nights a croupier in the record, but I infer and find that, as with the w o u ld e it h er begin w o r k at t h e beginning of the shift, or change of shift, the orders to discontinue the arrange- w o ul d begin one-half hour or so after that time. On Sep- ment between Ramos and Rosario came from above, tember 11 Ramos had been scheduled to begin work at either Maza or Luna. t h e beginning of his shift. Of course it had been Rosario ,,.... „* j ..i. . . i. j .1 and not Ramos who actually worked the night shift on In his testimony, Rivera asserted that he had author- and not R wt .,,, ,' „ . , „ i. . , r~~September 11. The supervisor in charge on September ized the swap between Rosario and Ramos, but only for Sp bI the Rodrisor in chare on September 2 das, ot or awee. Rveradidnotdenytheconer- 12, Rafael Castillo Rodriguez, was aware of that, and he sation with R amos outline di n t he pr evious paragraph,- scheduled Ramos to begin work at the start of the night sanIon with Ramos outlined in the previous paragraph, ift at 8=30 p.m. on September 12. Ramos, however, and I note that Thursday, September 11Rc was only the acting on his understanding of the existing practice, did first day of the swap. Thus Rivera contradicted his own n^ immediately report to work, but was present in the testimony, a further indication of his unreliability as a ^no im aeort time after 8:30.wp credible witness. Rosario was also informed of this deci- ci a so timn to 8a30r60 sionand e woked is rgula dayshif on epteber Between 8:30 and 8:35, according to Juan Rivera, Cas- sion and he worked his regular day shift on September Ramos had a conversation close to the table where Rivera was eating. Rivera was not busy at the While this incident was not alleged in the complaint as time. In fact he had nothing to do, and was able to give a separate and distinct violation, the matter has been his full attention to the conversation. Castillo began by fully litigated in this proceeding and Respondent is not instructing Ramos to go to work because his shift had al- prejudiced by a separate finding on this matter. Accord- ready started. Ramos answered that he did not have to ingly, I find that the decision to cancel the swap between begin because he had done so the previous night. Castillo Rosario and Ramos was made by Maza or Luna, and then said that Ramos had not worked the previous night that the reason that decision was made was the same as and to get to work. the reason for the original change in shift and days off Ramos then began to argue with Castillo, asking if for Ramos, in retaliation for his testimony in this pro- there were something personal that Castillo had against ceeding, and his election as acting president of the him. Castillo continued to order Ramos to begin work. Union. I find this abrogation of the arrangement between Rosario and Ramos to be a separate and additional viola- Ramos himself testified that he had reported to work and had a con- tion of Section 8(a)(l), (3), and (4) of the Act. versation with Castillo at 8:25 p.m. This is contradicted by the timecard On September 12, at noon, 59 Attorney Farinacci filed showing that Ramos had clocked in at 8:27 and must have encountered the i harge -i.-..- ;_ e <--~IA /-i A AIOI .. »« Rio-^ - fice /r Castillo some minutes later. Ramos' entire testimony on this incident with the Charge in Case 24-CA-4381 With the Regional Office Castillo is defensive, contradictory, and marked by self-justification which is not warranted by the facts. While I find that Ramos' description " Garcia denied that he had been notified of the substitution, but raised of events later that evening is credible, I do not credit his version of the no objection at the time. Resolution of this credibility issue is not neces- conversation with Castillo shortly after 8:30. I also had trouble with Cas- sary to the resolution of the issues herein,.tillo's credibility, so I have relied for the facts on this incident on the "9 According to the date stamp imprinted by the Board's Regional credible testimony of Juan Rivera Melendez, a cashier who works part Office. time at the casino and is not a member of the bargaining unit here. 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would begin his new schedule on the night shift, with of the Board on behalf of Felix Ramos. Later that after- Tuesdays and Wednesdays off, on Sunday, September 7. noon Farinacci and Ramos attended an arbitration hear- It was the practice at the casino that one employee ing at the Commonwealth Department of Labor involv- could swap shifts with another provided that the substi- ing the prior discharge of an employee named Pastrana. tute was qualified and that prior approval of manage- Representing the casino at this hearing were Carlos Luna ment was obtained. On September 5 Ramos informed and Attorney Francisco Ramos-Acosta. Rivera that it was impossible for him to work the late There is some conflict in the testimony of Farinacci shift because of his other part-time job, but that he and Ramos on the one hand, and Luna and Ramos- would change shifts with another employee, Eugenio Acosta on the other, over what was said and done con- Rosario Rexach. Rosario was equally as skilled as Ramos cerning the charge which had been filed earlier in the and Rivera accepted the swap for the 5 days beginning day. I do not find it necessary to resolve the questions of on September 11. credibility growing out of this conflict because it is un- On Sunday, September 7, Ramos called another em- disputed that Farinacci gave a copy of the charge to ployee, Anibal Colon Hernandez, and asked him to sub- Ramos-Acosta. The latter informed Luna of the contents stitute for that 1 night. Colon agreed and Ramos called of the charge either by telling him orally, or by giving Supervisor Abelardo Garcia and informed him of the h im a copy. Thus Respondent was aware of the matter substitution. 58 Colon worked that night and Ramos him- on that afternoon. self worked the night shift on Monday, September 8. That evening Ramos reported to the night shift at the Tuesday and Wednesday, September 9 and 10, were casino. His timecard which was received in evidence Ramos' days off under his new schedule. sh o w s t h a t h e punched in at 8:27 p.m. On September 11, Ramos was working the day shift Because of the practice in the casino of relieving crou- under his agreement with Rosario which had been ap- piers as described above in connection with the incident proved by Rivera. About 2:30 in the afternoon Rivera between Padin and Ramos, it was the the custom for su- told Ramos that the change that Ramos and Rosario had pervisors to schedule some employees for a break at the worked out could no longer continue because "they no beginning of their shift. This was done on a rotating longer wanted it." Who "they" were was not explained b as is so that on alternative days or nights a croupier in the record, but I infer and find that, as with the w o u ld e it h er begin w o rk a t t h e beginning of the shift, or change of shift, the orders to discontinue the arrange- w o ul d begin one-half hour or so after that time. On Sep- ment between Ramos and Rosario came from above, tember 11 Ramos had been scheduled to begin work at either Maza or Luna. t h e beginning of his shift. Of course it had been Rosario ,,.... „* . j .. . i. i. j .1 and not Ramos who actually worked the night shift on In his testimony, Rivera asserted that he had author- and not R wt .,,, ,' „ . , „ i. . , r~~September 11. The supervisor in charge on September ized the swap between Rosario and Ramos, but only for Sp bI the Rodrisor in chare on September 2 das, ot or awee. Rveradidnotdenytheconer- 12, Rafael Castillo Rodriguez, was aware of that, and he sation with R amos outline di n t he pr evious paragraph,- scheduled Ramos to begin work at the start of the night sanIon with Ramos outlined in the previous paragraph, ift at 8=30 p.m. on September 12. Ramos, however, and I note that Thursday, September 11Rc was only the acting on his understanding of the existing practice, did first day of the swap. Thus Rivera contradicted his own n^ immediately report to work, but was present in the testimony, a further indication of his unreliability as a ^no im aeort time after 8:30.wp credible witness. Rosario was also informed of this deci- ci a so timn to 8a30r60 sionand e woked is rgula dayshif on epteber Between 8:30 and 8:35, according to Juan Rivera, Cas- sion and he worked his regular day shift on September Ramos had a conversation close to the table where Rivera was eating. Rivera was not busy at the While this incident was not alleged in the complaint as time. In fact he had nothing to do, and was able to give a separate and distinct violation, the matter has been his full attention to the conversation. Castillo began by fully litigated in this proceeding and Respondent is not instructing Ramos to go to work because his shift had al- prejudiced by a separate finding on this matter. Accord- ready started. Ramos answered that he did not have to ingly, I find that the decision to cancel the swap between begin because he had done so the previous night. Castillo Rosario and Ramos was made by Maza or Luna, and then said that Ramos had not worked the previous night that the reason that decision was made was the same as and to get to work. the reason for the original change in shift and days off Ramos then began to argue with Castillo, asking if for Ramos, in retaliation for his testimony in this pro- there were something personal that Castillo had against ceeding, and his election as acting president of the him. Castillo continued to order Ramos to begin work. Union. I find this abrogation of the arrangement between Rosario and Ramos to be a separate and additional viola- Ramos himself testified that he had reported to work and had a con- tion of Section 8(a)(l), (3), and (4) of the Act. versation with Castillo at 8:25 p.m. This is contradicted by the timecard On September 12, at noon, 59 Attorney Farinacci filed showing that Ramos had clocked in at 8:27 and must have encountered the i harge -i.-..- ;_ e <--~IA /-i A AIOI .. »« Rio-^ - fice /r Castillo some minutes later. Ramos' entire testimony on this incident with the Charge in Case 24-CA-4381 With the Regional Office Castillo is defensive, contradictory, and marked by self-justification which is not warranted by the facts. While I find that Ramos' description " Garcia denied that he had been notified of the substitution, but raised of events later that evening is credible, I do not credit his version of the no objection at the time. Resolution of this credibility issue is not neces- conversation with Castillo shortly after 8:30. I also had trouble with Cas- sary to the resolution of the issues herein,.tillo's credibility, so I have relied for the facts on this incident on the "9 According to the date stamp imprinted by the Board's Regional credible testimony of Juan Rivera Melendez, a cashier who works part Office. time at the casino and is not a member of the bargaining unit here. HOTEL HOLIDAY INN DE ISLA VERDE 509 Ramos then began walking toward the roulette table Hector Rivera then came up and suggested that they go where he was assigned, continuing to argue. He then said to his office to discuss the matter. that if there were something personal against him the In the office, according to Hector Rivera and Castillo, two of them could take care of it in the parking lot at 4 they went over the incident, Ramos again apologized, o'clock (when the shift ended). 61 Ramos continued, and Castillo told him that the "report" had already been saying that he was not Ta Ta62 and if it were something prepared but that he would consult with Rivera and let personal they could settle it themselves. Juan Rivera Ramos know their decision later. Ramos testified that then cautioned Castillo not to continue the argument. Castillo had misunderstood the reference to 4 a.m. and Ramos went to work and the incident was over. that what Ramos meant was that they had to settle per- After this, according to Castillo, he went to the casino sonal matters after working time. Rivera then said that if office and wrote a report on the incident. In fact Castillo they reached an agreement it was all right with him. wrote two reports. In what was identified as the first Rivera then left and Castillo and Ramos reached an report, Castillo recited the fact that Ramos had invited agreement that Castillo would ask Rivera to "revoke" him to fight at 4 a.m., and described this as a violation of the report. In this instance, I credit Ramos over Castillo the agreement and stated that Ramos was forthwith dis- and Rivera and I find that the incident in the casino was charged.63 He was instructed to report to Luna's office Castillo with Rivera's approval. at 1 p.m. on Monday, September 15, for final processing. s , . 3 Then Castillo wrote another letter allegedly correcting The night was not yet ended, however. Around 3:30 errors which appeared in the first. The second letter Rivera came up to Ramos and handed him the dismissal shows three substantive changes from the first. The letter. " Rivera then told Ramos that he was not going to words "attended the undersigned" in the first paragraph drop the charges because astillo had spoken of the c - of the first letter were changed to "offended the under- dent to Maza and Maza had told Castillo to go ahead signed" in the second. There is no question that this with the discharge. This testimony by Felix Ramos was change makes the paragraph more accurate, and reflects corroborated by Ruben Ramos who testified that he what actually happened. However the other changes are spoke with Rivera on the day after Felix Ramos was dis- more difficult to explain. Indeed Castillo furnished no charged, and that Rivera told Ruben Ramos that Maza credible explanation as to why, in the second letter, he had found out about the incident and "wanted to go on eliminated the reference to Ramos' position as acting with the case." Ruben Ramos added that he had seen shop steward in the salutation, and the reference to Castillo talking with Maza in the lobby of the hotel on Ramos as the "group representative" in the last para- the night of Felix Ramos' discharge. graph. Despite extensive cross-examination, Castillo's ex- Crediting this testimony by Felix and Ruben Ramos, I planation is so confused and contradictory as to be total- find that the confrontation in the casino had been adjust- ly unconvincing.6 Hector Rivera, the casino manager, ed and forgiven by Respondent through the actions of likewise was thoroughly confused on his role in passing Castillo and Rivera at the 11:30 p.m. meeting in the on these letters. Castillo said, for example, that he casino office. This constituted a clear and unequivocal showed both letters to Rivera. Rivera stated that he saw condonation of whatever misconduct Ramos may have only one, then identified that as the first letter. For these committed. N.L.R.B. v. Marshall Car Wheel and Foundry reasons I discredit the testimony of both Castillo and Co. of Marshall. Texas, Inc., 218 F.2d 409 (5th Cir. 1955); Rivera on this issue. I really can make no findings on this Retail Wholesale and Department Store Union, AFL-CIO subject, but the logic and the inherent probabilities of the [Coca Cola Bottling Works, Inc.] v. N.L.R.B., 466 F.2d situation would indicate to me that Castillo prepared the 380 (D.C. Cir. 1972). first letter and showed it to Rivera when the latter ar- After the fact of this condonation and forgiveness, rived at the casino about 11:30 p.m. Rivera noted the ref- Maza found out about the incident. I have already noted erences to Ramos as acting steward, and, knowing that Maza's hostility toward Ramos as expressed in the earlier Ramos was no longer acting steward, but acting presi- incident between Ramos and Padin. I have further found dent, decided to delete those references and so instructed evidence of a continuation of this hostile attitude in the Castillo. I cannot speculate as to the reason Rivera did change of shifts and the denial to Ramos of the privilege not ask Castillo to include Ramos' current title. of swapping shifts with other employees. Maza did not After Hector Rivera arrived at the casino, Juan Rivera testify, nor did any other witness ascribe to him any testified that Ramos approached Castillo and attempted reason or motive for this action. In view of this the only to excuse himself, saying that he had lost his head. logical inference I can draw is that Maza ordered the discharge of Ramos, using the incident with Castillo as a '" Juan Rivera understood this remark to be an invitation to fight. discharge of Ramos, using the incident with Castillo as a £ Ta Ta is the nickname of an employee named Eduardo Rivera. pretext, because he had testified in previous phases of Ramos explained that Eduardo Rivera had been humiliated in an incident this hearing contrary to the interests of Respondent, and, with Castillo in front of a number of people, but chose not to file a griev- on that very day, had filed a new charge with the Board ance or complaint about it. Ramos apparently wanted Castillo to under- complaining of further misconduct by Respondent. Shat- stand that he would not supinely accept that type of manifestation of Castillo's authority. Juan Rivera testified that Ramos was excited, and tuck-Denn Mining Corporation (Iron King Branch) v. was talking in a loud voice with his arms extended and waving his hands. N.L.R.B., 362 F.2d 466 (9th Cir. 1967). I thus find that U The phrase used several times in this proceeding is translated as by revoking the agreement condoning the incident in the "suspended from employment and salary permanently." I think that the casino, and ordering the discharge of Felix Ramos on the plain meaning of this is that the employee is discharged. " The two letters were typed by a croupier named Rosalie Rodriguez, but she did not testify in this proceeding. " The second of the two letters discussed above. HOTEL HOLIDAY INN DE ISLA VERDE 509 Ramos then began walking toward the roulette table Hector Rivera then came up and suggested that they go where he was assigned, continuing to argue. He then said to his office to discuss the matter. that if there were something personal against him the In the office, according to Hector Rivera and Castillo, two of them could take care of it in the parking lot at 4 they went over the incident, Ramos again apologized, o'clock (when the shift ended)."1 Ramos continued, and Castillo told him that the "report" had already been saying that he was not Ta Ta 62 and if it were something prepared but that he would consult with Rivera and let personal they could settle it themselves. Juan Rivera Ramos know their decision later. Ramos testified that then cautioned Castillo not to continue the argument. Castillo had misunderstood the reference to 4 a.m. and Ramos went to work and the incident was over. that what Ramos meant was that they had to settle per- After this, according to Castillo, he went to the casino sonal matters after working time. Rivera then said that if office and wrote a report on the incident. In fact Castillo they reached an agreement it was all right with him. wrote two reports. In what was identified as the first Rivera then left and Castillo and Ramos reached an report, Castillo recited the fact that Ramos had invited agreement that Castillo would ask Rivera to "revoke" him to fight at 4 a~m., and described this as a violation of the report. In this instance, I credit Ramos over Castillo the agreement and stated that Ramos was forthwith dis- and Rivera, and I find that the incident in the casino was charged." He was instructed to report to Luna's office f i b Castillo with Rivera's approval. at 1 p.m. on Monday, September 15, for final processing. T n w n y ed, .A 3:30 Then Castillo wrote another letter allegedly correcting R T h e camht was not yet ended however. Around 3:30 errors which appeared in the first. The second letter Rivera came up to Ramos and handed him the dismissal shows three substantive changes from the first. The dletter." Rivers then told Ramos that he was not going to words "attended the undersigned" in the first paragraph p t h e charges because Castillo had spoken of the mci- of the first letter were changed to "offended the under- dent to Maza and Maza had told Castillo to go ahead signed" in the second. There is no question that this with the discharge. This testimony by Felix Ramos was change makes the paragraph more accurate, and reflects corroborated by Ruben Ramos who testified that he what actually happened. However the other changes are spoke with Rivera on the day after Felix Ramos was dis- more difficult to explain. Indeed Castillo furnished no charged, and that Rivera told Ruben Ramos that Maza credible explanation as to why, in the second letter, he had found out about the incident and "wanted to go on eliminated the reference to Ramos' position as acting with the case." Ruben Ramos added that he had seen shop steward in the salutation, and the reference to Castillo talking with Maza in the lobby of the hotel on Ramos as the "group representative" in the last para- the night of Felix Ramos' discharge. graph. Despite extensive cross-examination, Castillo's ex- Crediting this testimony by Felix and Ruben Ramos, I planation is so confused and contradictory as to be total- find that the confrontation in the casino had been adjust- ly unconvincing." Hector Rivera, the casino manager, ed and forgiven by Respondent through the actions of likewise was thoroughly confused on his role in passing Castillo and Rivera at the 11:30 p.m. meeting in the on these letters. Castillo said, for example, that he casino office. This constituted a clear and unequivocal showed both letters to Rivera. Rivera stated that he saw condonation of whatever misconduct Ramos may have only one, then identified that as the first letter. For these committed. N.L.R.B. v. Marshall Car Wheel and Foundry reasons I discredit the testimony of both Castillo and Co. of Marshall. Texas, Inc., 218 F.2d 409 (5th Cir. 1955); Rivera on this issue. I really can make no findings on this Retail Wholesale and Department Store Union, AFL-CIO subject, but the logic and the inherent probabilities of the [Coca Cola Bottling Works, Inc.] v. N.L.R.B., 466 F.2d situation would indicate to me that Castillo prepared the 380 (D.C. Cir. 1972). first letter and showed it to Rivera when the latter ar- After the fact of this condonation and forgiveness, rived at the casino about 11:30 p.m. Rivera noted the ref- Maza found out about the incident. I have already noted erences to Ramos as acting steward, and, knowing that Maza's hostility toward Ramos as expressed in the earlier Ramos was no longer acting steward, but acting presi- incident between Ramos and Padin. I have further found dent, decided to delete those references and so instructed evidence of a continuation of this hostile attitude in the Castillo. I cannot speculate as to the reason Rivera did change of shifts and the denial to Ramos of the privilege not ask Castillo to include Ramos' current title. of swapping shifts with other employees. Maza did not After Hector Rivera arrived at the casino, Juan Rivera testify, nor did any other witness ascribe to him any testified that Ramos approached Castillo and attempted reason or motive for this action. In view of this the only to excuse himself, saying that he had lost his head. logical inference I can draw is that Maza ordered the - ----- , ,~~~~~~~~~~discharge of Ramos, using the incident with Castillo as a 61 Juan Rivera understood this remark to be an invitation to right. dicagofRmsuinthicdetwhCsilosa Ta Ta is the nickname of an employee named Eduardo Rivera. pretext, because he had testified in previous phases of Ramos explained that Eduardo Rivera had been humiliated in an incident this hearing contrary to the interests of Respondent, and, with Castillo in front of a number of people, but chose not to file a griev- on that very day, had filed a new charge with the Board ance or complaint about it. Ramos apparently wanted Castillo to under- complaining of further misconduct by Respondent. Shat- stand that he would not supinely accept that type of manifestation of Castillo's authority. Juan Rivera testified that Ramos was excited, and tuck-Denn Mining Corporation (Iron King Branch) v. was talking in a loud voice with his arms extended and waving his hands. N.L.R.B., 362 F.2d 466 (9th Cir. 1967). I thus find that " The phrase used several times in this proceeding is translated as by revoking the agreement condoning the incident in the suspended from employment and salary permanently. I t h ink that t he c d oreig the discharge of Felix Ramos on the plain meaning of this is that the employee is discharged. aio n reigtedscag fFlxRmso h I The two letters were typed by a croupier named Rosalie Rodriguez, but she did not testify in this proceeding. " The second of the two letters discussed above. HOTEL HOLIDAY INN DE ISLA VERDE 509 Ramos then began walking toward the roulette table Hector Rivera then came up and suggested that they go where he was assigned, continuing to argue. He then said to his office to discuss the matter. that if there were something personal against him the In the office, according to Hector Rivera and Castillo, two of them could take care of it in the parking lot at 4 they went over the incident, Ramos again apologized, o'clock (when the shift ended)."' Ramos continued, and Castillo told him that the "report" had already been saying that he was not Ta Ta 62 and if it were something prepared but that he would consult with Rivera and let personal they could settle it themselves. Juan Rivera Ramos know their decision later. Ramos testified that then cautioned Castillo not to continue the argument. Castillo had misunderstood the reference to 4 a.m. and Ramos went to work and the incident was over. that what Ramos meant was that they had to settle per- After this, according to Castillo, he went to the casino sonal matters after working time. Rivera then said that if office and wrote a report on the incident. In fact Castillo they reached an agreement it was all right with him. wrote two reports. In what was identified as the first Rivera then left and Castillo and Ramos reached an report, Castillo recited the fact that Ramos had invited agreement that Castillo would ask Rivera to "revoke" him to fight at 4 a~m., and described this as a violation of the report. In this instance, I credit Ramos over Castillo the agreement and stated that Ramos was forthwith dis- and Rivera, and I find that the incident in the casino was charged." He was instructed to report to Luna's office f i b Castillo with Rivera's approval. at 1 p.m. on Monday, September 15, for final processing. T n w n y ed, .A 3:30 Then Castillo wrote another letter allegedly correcting R T h e camht was not yet ended however. Around 3:30 errors which appeared in the first. The second letter Rivera came up to Ramos and handed him the dismissal shows three substantive changes from the first. The dletter." Rivers then told Ramos that he was not going to words "attended the undersigned" in the first paragraph p t h e charges because Castillo had spoken of the mci- of the first letter were changed to "offended the under- dent to Maza and Maza had told Castillo to go ahead signed" in the second. There is no question that this with the discharge. This testimony by Felix Ramos was change makes the paragraph more accurate, and reflects corroborated by Ruben Ramos who testified that he what actually happened. However the other changes are spoke with Rivera on the day after Felix Ramos was dis- more difficult to explain. Indeed Castillo furnished no charged, and that Rivera told Ruben Ramos that Maza credible explanation as to why, in the second letter, he had found out about the incident and "wanted to go on eliminated the reference to Ramos' position as acting with the case." Ruben Ramos added that he had seen shop steward in the salutation, and the reference to Castillo talking with Maza in the lobby of the hotel on Ramos as the "group representative" in the last para- the night of Felix Ramos' discharge. graph. Despite extensive cross-examination, Castillo's ex- Crediting this testimony by Felix and Ruben Ramos, I planation is so confused and contradictory as to be total- find that the confrontation in the casino had been adjust- ly unconvincing." Hector Rivera, the casino manager, ed and forgiven by Respondent through the actions of likewise was thoroughly confused on his role in passing Castillo and Rivera at the 11:30 p.m. meeting in the on these letters. Castillo said, for example, that he casino office. This constituted a clear and unequivocal showed both letters to Rivera. Rivera stated that he saw condonation of whatever misconduct Ramos may have only one, then identified that as the first letter. For these committed. N.L.R.B. v. Marshall Car Wheel and Foundry reasons I discredit the testimony of both Castillo and Co. of Marshall. Texas, Inc., 218 F.2d 409 (5th Cir. 1955); Rivera on this issue. I really can make no findings on this Retail Wholesale and Department Store Union, AFL-CIO subject, but the logic and the inherent probabilities of the [Coco Cola Bottling Works, Inc.] v. N.L.R.B., 466 F.2d situation would indicate to me that Castillo prepared the 380 (D.C. Cir. 1972). first letter and showed it to Rivera when the latter ar- After the fact of this condonation and forgiveness, rived at the casino about 11:30 p.m. Rivera noted the ref- Maza found out about the incident. I have already noted erences to Ramos as acting steward, and, knowing that Maza's hostility toward Ramos as expressed in the earlier Ramos was no longer acting steward, but acting presi- incident between Ramos and Padin. I have further found dent, decided to delete those references and so instructed evidence of a continuation of this hostile attitude in the Castillo. I cannot speculate as to the reason Rivera did change of shifts and the denial to Ramos of the privilege not ask Castillo to include Ramos' current title. of swapping shifts with other employees. Maza did not After Hector Rivera arrived at the casino, Juan Rivera testify, nor did any other witness ascribe to him any testified that Ramos approached Castillo and attempted reason or motive for this action. In view of this the only to excuse himself, saying that he had lost his head. logical inference I can draw is that Maza ordered the - ----- , ,~~~~~~~~~~discharge of Ramos, using the incident with Castillo as a 61 Juan Rivera understood this remark to be an invitation to right. dicagofRmsuinthicdetwhCsilosa Ta Ta is the nickname of an employee named Eduardo Rivera. pretext, because he had testified in previous phases of Ramos explained that Eduardo Rivera had been humiliated in an incident this hearing contrary to the interests of Respondent, and, with Castillo in front of a number of people, but chose not to file a griev- on that very day, had filed a new charge with the Board ance or complaint about it. Ramos apparently wanted Castillo to under- complaining of further misconduct by Respondent. Shat- stand that he would not supinely accept that type of manifestation of Castillo's authority. Juan Rivera testified that Ramos was excited, and tuck-Denn Mining Corporation (Iron King Branch) v. was talking in a loud voice with his arms extended and waving his hands. N.L.R.B., 362 F.2d 466 (9th Cir. 1967). I thus find that " The phrase used several times in this proceeding is translated as by revoking the agreement condoning the incident in the suspended from employment and salary permanently. I t h ink that t he c d oreig the discharge of Felix Ramos on the plain meaning of this is that the employee is discharged. aio n reigtedscag fFlxRmso h I The two letters were typed by a croupier named Rosalie Rodriguez, but she did not testify in this proceeding. " The second of the two letters discussed above. HOTEL HOLIDAY INN DE ISLA VERDE 509 Ramos then began walking toward the roulette table Hector Rivera then came up and suggested that they go where he was assigned, continuing to argue. He then said to his office to discuss the matter. that if there were something personal against him the In the office, according to Hector Rivera and Castillo, two of them could take care of it in the parking lot at 4 they went over the incident, Ramos again apologized, o'clock (when the shift ended)."1 Ramos continued, and Castillo told him that the "report" had already been saying that he was not Ta Ta 62 and if it were something prepared but that he would consult with Rivera and let personal they could settle it themselves. Juan Rivera Ramos know their decision later. Ramos testified that then cautioned Castillo not to continue the argument. Castillo had misunderstood the reference to 4 a.m. and Ramos went to work and the incident was over. that what Ramos meant was that they had to settle per- After this, according to Castillo, he went to the casino sonal matters after working time. Rivera then said that if office and wrote a report on the incident. In fact Castillo they reached an agreement it was all right with him. wrote two reports. In what was identified as the first Rivera then left and Castillo and Ramos reached an report, Castillo recited the fact that Ramos had invited agreement that Castillo would ask Rivera to "revoke" him to fight at 4 a~m., and described this as a violation of the report. In this instance, I credit Ramos over Castillo the agreement and stated that Ramos was forthwith dis- and Rivera, and I find that the incident in the casino was charged." He was instructed to report to Luna's office f i b Castillo with Rivera's approval. at 1 p.m. on Monday, September 15, for final processing. T n w , hwv .A 3:30 Then Castillo wrote another letter allegedly correcting R T h e camht was not yet ended however. Around 3:30 errors which appeared in the first. The second letter Rivera came up to Ramos and handed him the dismissal shows three substantive changes from the first. The dletter." Rivers then told Ramos that he was not going to words "attended the undersigned" in the first paragraph p t h e charges because Castillo had spoken of the mci- of the first letter were changed to "offended the under- dent to Maza and Maza had told Castillo to go ahead signed" in the second. There is no question that this with the discharge. This testimony by Felix Ramos was change makes the paragraph more accurate, and reflects corroborated by Ruben Ramos who testified that he what actually happened. However the other changes are spoke with Rivera on the day after Felix Ramos was dis- more difficult to explain. Indeed Castillo furnished no charged, and that Rivera told Ruben Ramos that Maza credible explanation as to why, in the second letter, he had found out about the incident and "wanted to go on eliminated the reference to Ramos' position as acting with the case." Ruben Ramos added that he had seen shop steward in the salutation, and the reference to Castillo talking with Maza in the lobby of the hotel on Ramos as the "group representative" in the last para- the night of Felix Ramos' discharge. graph. Despite extensive cross-examination, Castillo's ex- Crediting this testimony by Felix and Ruben Ramos, I planation is so confused and contradictory as to be total- find that the confrontation in the casino had been adjust- ly unconvincing." Hector Rivera, the casino manager, ed and forgiven by Respondent through the actions of likewise was thoroughly confused on his role in passing Castillo and Rivera at the 11:30 p.m. meeting in the on these letters. Castillo said, for example, that he casino office. This constituted a clear and unequivocal showed both letters to Rivera. Rivera stated that he saw condonation of whatever misconduct Ramos may have only one, then identified that as the first letter. For these committed. N.L.R.B. v. Marshall Car Wheel and Foundry reasons I discredit the testimony of both Castillo and Co. of Marshall. Texas, Inc., 218 F.2d 409 (5th Cir. 1955); Rivera on this issue. I really can make no findings on this Retail Wholesale and Department Store Union, AFL-CIO subject, but the logic and the inherent probabilities of the [Coco Cola Bottling Works, Inc.] v. N.L.R.B., 466 F.2d situation would indicate to me that Castillo prepared the 380 (D.C. Cir. 1972). first letter and showed it to Rivera when the latter ar- After the fact of this condonation and forgiveness, rived at the casino about 11:30 p.m. Rivera noted the ref- Maza found out about the incident. I have already noted erences to Ramos as acting steward, and, knowing that Maza's hostility toward Ramos as expressed in the earlier Ramos was no longer acting steward, but acting presi- incident between Ramos and Padin. I have further found dent, decided to delete those references and so instructed evidence of a continuation of this hostile attitude in the Castillo. I cannot speculate as to the reason Rivera did change of shifts and the denial to Ramos of the privilege not ask Castillo to include Ramos' current title. of swapping shifts with other employees. Maza did not After Hector Rivera arrived at the casino, Juan Rivera testify, nor did any other witness ascribe to him any testified that Ramos approached Castillo and attempted reason or motive for this action. In view of this the only to excuse himself, saying that he had lost his head. logical inference I can draw is that Maza ordered the - ----- , ,~~~~~~~~~~discharge of Ramos, using the incident with Castillo as a 61 Juan Rivera understood this remark to be an invitation to right. dicagofRmsuinthicdetwhCsilosa Ta Ta is the nickname of an employee named Eduardo Rivera. pretext, because he had testified in previous phases of Ramos explained that Eduardo Rivera had been humiliated in an incident this hearing contrary to the interests of Respondent, and, with Castillo in front of a number of people, but chose not to file a griev- on that very day, had filed a new charge with the Board ance or complaint about it. Ramos apparently wanted Castillo to under- complaining of further misconduct by Respondent. Shat- stand that he would not supinely accept that type of manifestation of Castillo's authority. Juan Rivera testified that Ramos was excited, and tuck-Denn Mining Corporation (Iron King Branch) v. was talking in a loud voice with his arms extended and waving his hands. N.L.R.B., 362 F.2d 466 (9th Cir. 1967). I thus find that " The phrase used several times in this proceeding is translated as by revoking the agreement condoning the incident in the suspended from employment and salary permanently. I t h ink that t he c d oreig the discharge of Felix Ramos on the plain meaning of this is that the employee is discharged. aio n reigtedscag fFlxRmso h I The two letters were typed by a croupier named Rosalie Rodriguez, but she did not testify in this proceeding. " The second of the two letters discussed above. 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD night of September 12, Respondent has violated Section CONCLUSIONS OF LAW 8(a)(1), (3), and (4) of the Act. 1. Isla Verde Hotel Corporation d/b/a Hotel Holiday After handing Ramos the discharge letter in the casino Inn de sla Verde is an employer engaged in commerce at 3:30 a.m. Rivera then said that Ramos could "defend" within the meaning of Section 2(6) and (7) of the Act. himself at the meeting with Luna at 1 on Monday, Sep- 2. Asociacion de Empleados del Casino del Holiday tember 15. However, Rivera stated that he never both- Inn de Isla Verde is a labor organization within the ered to inform Luna about the situation. I find this rather meaning of Section 2(5) of the Act. hard to believe, but even harder to believe was Luna's 3. By unilaterally discontinuing its Christmas bonus in testimony that when Castillo and Ramos came to his December 1979, Respondent has violated Section 8(aX1) office Monday afternoon he knew nothing about the and (5) of the Act. matter. Since this meeting is really only a postscript to 4. By refusing to bargain about the discontinuance of the main events in this case, I need make no findings the Christmas bonus Respondent has violated Section concerning it, other than to note my disbelief of the testi- 8(a)(1) and (5) of the Act. mony of Rivera that he never notified Luna of the meet- 5. By refusing to reinstate unfair labor practice strik- ing's purpose, and Luna's denial of any knowledge of the ers, Respondent has violated Section 8(aXl) and (3) of incident in the casino on September 12. This reinforces the Act. my lack of confidence in the credibility of either Luna or 6. By sending letters threatening them with reprisals Rivera. for engaging in protected concerted activity, Respondent has violated Section 8(aXl) and (3) of the Act. IV. THE REMEDY 7. By requiring employees to waive statutory rights in order to obtain reinstatement, Respondent has violated Having found that Respondent has engaged in and is Section 8(a)() of the Act. engaging in certain unfair labor practices, I shall recom- 8 icarin it e ei ao on an 8. By discharging its employee, Felix Ramos, on Janu- mend that it cease and desist therefrom, and take certain ary 26 Respondent has violated Section 8(a) and ary 26, 1980, Respondent has violated Section 8(aXl) and affirmative action designed to effectuate the policies of (3) of the Act the Act. „~~~~~ ~~~~~the Act. .,9. By denying an unpaid leave to its employee, Felix Having found that the strike which began on Decem- Ramos, in June 1980, Respondent has violated Section ber 20, 1979, was an unfair labor practice strike I shall 8(a)(l), (3), and (4) of the Act. recommend that Respondent offer Jose Crespo, Hum- 10. By issuing a written warning to its employee, Felix berto Sanchez, Arnaldo Delgado, and Geraldo Rodri- Ramos, in July 1980, Respondent has violated Section guez immediate and full reinstatement to their former 8(a)(l), (3), and (4) of the Act. jobs, or, if those jobs no longer exist, to substantially 11. By changing the shift and days off of its employee, equivalent jobs, without prejudice to their seniority and Felix Ramos, in September 1980, Respondent has violat- other rights and privileges, and make these employees, ed Section 8(a)(l), (3), and (4) of the Act. together with all other employees who went on strike on 12. By denying to its employee, Felix Ramos, the right December 20 and 21, 1979, against Respondent's unfair to swap shifts with other employees, Respondent has labor practices, whole for any loss of earnings they suf- violated Section 8(aX1), (3), and (4) of the Act. fered by reason of Respondent's unfair labor practices 13. By revoking an agreement to condone the conduct and the discrimination against them by payment to them of its employee, Felix Ramos, on September 12, 1980, of sums of money equal to that which they normally and thereby causing his discharge, Respondent has vio- would have earned, absent the unfair labor practices and lated Section 8(a)(l), (3), and (4) of the Act. discrimination against them, including the 1979 Christ- Upon the foregoing findings of fact, conclusions of mas bonus, less net earnings during such period, with in- law, and the entire record, and pursuant to Section 10(c) terest thereon, to be computed in the manner prescribed of the Act, I issue the following recommended: in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977). 66 ORDER67 I shall further recommend that Respondent offer Felix The Respondent, Isla Verde Hotel Corporation d/b/a Ramos immediate and full reinstatement to his former Hotel Holiday Inn de Isla Verde, Isla Verde, Puerto job or, if that job no longer exists, to a substantially Rico, its officers, agents, successors, and assigns, shall: equal job, without prejudice to his seniority and other 1. Cease and desist from: rights and privileges, and to make him whole for any (a) Refusing to bargain on request with the Union. loss of earnings suffered by him by reason of the discrim- (b) Unilaterally discontinuing its Christmas bonus. ination against him in January and in September 1980 (c) Refusing to grant benefits or discontinuing existing computed in the same manner as outlined in the preced- benefits to employees because they engaged in union ac- ing paragraph. tivities, or in concerted activities for their mutual aid or I shall further recommend that Respondent bargain on request with the Union, and that all references to certain In the event no exceptions are filed as provided by Sec. 102.46 of disciplinary action be removed from the files maintained the Rules and Regulations of the National Labor Relations Board, the by Respondent concerning Felix Ramos. findings, conclusions, and recommended Order herein shall, as provided by Respondent concerning Felix Ramo. 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 See, generally, Isis Plumbing and Heating Ca, 138 NLRB 716 (1962). shall be deemed waived for all purposes. 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD night of September 12, Respondent has violated Section CONCLUSIONS OF LAW 8(a)(1). (3), and (4) of the Act. 1. Isla Verde Hotel Corporation d/b/a Hotel Holiday After handing Ramos the discharge letter in the casino Inn de Isla Verde is an employer engaged in commerce at 3:30 a.m. Rivera then said that Ramos could "defend" within the meaning of Section 2(6) and (7) of the Act. himself at the meeting with Luna at 1 on Monday, Sep- 2. Asociacion de Empleados del Casino del Holiday tember 15. However, Rivera stated that he never both- Inn de Isla Verde is a labor organization within the ered to inform Luna about the situation. I find this rather meaning of Section 2(5) of the Act. hard to believe, but even harder to believe was Luna's 3. By unilaterally discontinuing its Christmas bonus in testimony that when Castillo and Ramos came to his December 1979, Respondent has violated Section 8(a(l) office Monday afternoon he knew nothing about the and (5) of the Act. matter. Since this meeting is really only a postscript to 4. By refusing to bargain about the discontinuance of the main events in this case, I need make no findings the Christmas bonus Respondent has violated Section concerning it, other than to note my disbelief of the testi- 8(a)(l) and (5) of the Act. mony of Rivera that he never notified Luna of the meet- 5. By refusing to reinstate unfair labor practice strik- ing's purpose, and Luna's denial of any knowledge of the ers, Respondent has violated Section 8(a)l) and (3) of incident in the casino on September 12. This reinforces the Act. my lack of confidence in the credibility of either Luna or 6. By sending letters threatening them with reprisals Rivera. for engaging in protected concerted activity, Respondent has violated Section 8(aX1) and (3) of the Act. Iv. THE REMEDY 7. By requiring employees to waive statutory rights in Havig fond hat espoden hasengaed n an is order to obtain reinstatement, Respondent has violated H..,n, round ,„„t Respondlen, has »^gg in „<d i.s ^ oT S " l> n ° h t " e l engaging in certain unfair labor practices, I shall recom- ecn 81) of t A. ~.,. .. , , . . ., e -1*1 *~8. By discharging its employee, Felix Ramos, on Janu- mend that it cease and desist therefrom, and take certain .Bischarging it e ix R o o Janu- re- * . -i. _i re i- r. ~ ~~~ery 26, 1980, Respondent has violated Section 8(aXl) and affirmative action designed to effectuate the policies of ary26,19 eo n As v the Act. 9. By denying an unpaid leave to its employee, Felix Having found that the strike which began on Decem- Ramos, in June 1980, Respondent has violated Section ber 20, 1979, was an unfair labor practice strike I shall 8(a)(l), (3), and (4) of the Act. recommend that Respondent offer Jose Crespo, Hum- 10. By issuing a written warning to its employee, Felix berto Sanchez, Amaldo Delgado, and Geraldo Rodri- Ramos, in July 1980, Respondent has violated Section guez immediate and full reinstatement to their former 8(a)(l), (3), and (4) of the Act. jobs, or, if those jobs no longer exist, to substantially 11. By changing the shift and days off of its employee, equivalent jobs, without prejudice to their seniority and Felix Ramos, in September 1980, Respondent has violat- other rights and privileges, and make these employees, ed Section 8(a)(l), (3), and (4) of the Act. together with all other employees who went on strike on 12. By denying to its employee, Felix Ramos, the right December 20 and 21, 1979, against Respondent's unfair to swap shifts with other employees, Respondent has labor practices, whole for any loss of earnings they suf- violated Section 8(aXI), (3), and (4) of the Act. fered by reason of Respondent's unfair labor practices 13. By revoking an agreement to condone the conduct and the discrimination against them by payment to them of its employee, Felix Ramos, on September 12, 1980, of sums of money equal to that which they normally and thereby causing his discharge, Respondent has vio- would have earned, absent the unfair labor practices and lated Section 8(a)(l), (3), and (4) of the Act. discrimination against them, including the 1979 Christ- Upon the foregoing findings of fact, conclusions of mas bonus, less net earnings during such period, with in- law, and the entire record, and pursuant to Section 10(c) terest thereon, to be computed in the manner prescribed of the Act, I issue the following recommended: in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977). 66 ORDER"7 I shall further recommend that Respondent offer Felix The Respondent, Isla Verde Hotel Corporation d/b/a Ramos immediate and full reinstatement to his former Hotel Holiday Inn de Isla Verde, Isla Verde, Puerto job or, if that job no longer exists, to a substantially Rico, its officers, agents, successors, and assigns, shall: equal job, without prejudice to his seniority and other I. Cease and desist from: rights and privileges, and to make him whole for any (a) Refusing to bargain on request with the Union. loss of earnings suffered by him by reason of the discrim- (b) Unilaterally discontinuing its Christmas bonus. ination against him in January and in September 1980 (c) Refusing to grant benefits or discontinuing existing computed in the same manner as outlined in the preced- benefits to employees because they engaged in union ac- ing paragraph. tivities, or in concerted activities for their mutual aid or I shall further recommend that Respondent bargain on request with the Union, and that all references to certain " In the event no exceptions are filed as provided by Sec. 102.46 of disciplinary action be removed from the files maintained t he Rules and Regulations of the National Labor Relations Board, the by Respondent concerning Felix Ramos. findings, conclusions, and recomm ended Order herein shall, s 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 * See, generally, Isis Plumbing and Heating Ca, 138 NLRB 716 (1962). shall be deemed waived for all purposes. 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD night of September 12, Respondent has violated Section CONCLUSIONS OF LAW 8(a)(1). (3), and (4) of the Act. 1. Isla Verde Hotel Corporation d/b/a Hotel Holiday After handing Ramos the discharge letter in the casino Inn de Isla Verde is an employer engaged in commerce at 3:30 a.m. Rivera then said that Ramos could "defend" within the meaning of Section 2(6) and (7) of the Act. himself at the meeting with Luna at 1 on Monday, Sep- 2. Asociacion de Empleados del Casino del Holiday tember 15. However, Rivera stated that he never both- Inn de Isla Verde is a labor organization within the ered to inform Luna about the situation. I find this rather meaning of Section 2(5) of the Act. hard to believe, but even harder to believe was Luna's 3. By unilaterally discontinuing its Christmas bonus in testimony that when Castillo and Ramos came to his December 1979, Respondent has violated Section 8(a(l) office Monday afternoon he knew nothing about the and (5) of the Act. matter. Since this meeting is really only a postscript to 4. By refusing to bargain about the discontinuance of the main events in this case, I need make no findings the Christmas bonus Respondent has violated Section concerning it, other than to note my disbelief of the testi- 8(a)(l) and (5) of the Act. mony of Rivera that he never notified Luna of the meet- 5. By refusing to reinstate unfair labor practice strik- ing's purpose, and Luna's denial of any knowledge of the ers, Respondent has violated Section 8(a)l) and (3) of incident in the casino on September 12. This reinforces the Act. my lack of confidence in the credibility of either Luna or 6. By sending letters threatening them with reprisals Rivera. for engaging in protected concerted activity, Respondent has violated Section 8(aX1) and (3) of the Act. Iv. THE REMEDY 7. By requiring employees to waive statutory rights in Havig fond hat espoden hasengaed n an is order to obtain reinstatement, Respondent has violated H..,n, round ,„„t Responden, has »^g in and i.s ^ oT S " l> n ° h t " e engaging in certain unfair labor practices, I shall recom- ecn 81) of t A. ~.,. .. , , . . ., e -1*1 *~8. By discharging its employee, Felix Ramos, on Janu- mend that it cease and desist therefrom, and take certain .Bischarging it e ix R o o Janu- re- * . -i. _i re i- r. ** ^~~ey 26, 1980, Respondent has violated Section 8(aXl) and affirmative action designed to effectuate the policies of ary26,19 eo n As v the Act. 9. By denying an unpaid leave to its employee, Felix Having found that the strike which began on Decem- Ramos, in June 1980, Respondent has violated Section ber 20, 1979, was an unfair labor practice strike I shall 8(a)(l), (3), and (4) of the Act. recommend that Respondent offer Jose Crespo, Hum- 10. By issuing a written warning to its employee, Felix berto Sanchez, Amaldo Delgado, and Geraldo Rodri- Ramos, in July 1980, Respondent has violated Section guez immediate and full reinstatement to their former 8(a)(l), (3), and (4) of the Act. jobs, or, if those jobs no longer exist, to substantially 11. By changing the shift and days off of its employee, equivalent jobs, without prejudice to their seniority and Felix Ramos, in September 1980, Respondent has violat- other rights and privileges, and make these employees, ed Section 8(a)(l), (3), and (4) of the Act. together with all other employees who went on strike on 12. By denying to its employee, Felix Ramos, the right December 20 and 21, 1979, against Respondent's unfair to swap shifts with other employees, Respondent has labor practices, whole for any loss of earnings they suf- violated Section 8(aXI), (3), and (4) of the Act. fered by reason of Respondent's unfair labor practices 13. By revoking an agreement to condone the conduct and the discrimination against them by payment to them of its employee, Felix Ramos, on September 12, 1980, of sums of money equal to that which they normally and thereby causing his discharge, Respondent has vio- would have earned, absent the unfair labor practices and lated Section 8(a)(l), (3), and (4) of the Act. discrimination against them, including the 1979 Christ- Upon the foregoing findings of fact, conclusions of mas bonus, less net earnings during such period, with in- law, and the entire record, and pursuant to Section 10(c) terest thereon, to be computed in the manner prescribed of the Act, I issue the following recommended: in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977). 66 ORDER"7 I shall further recommend that Respondent offer Felix The Respondent, Isla Verde Hotel Corporation d/b/a Ramos immediate and full reinstatement to his former Hotel Holiday Inn de Isla Verde, Isla Verde, Puerto job or, if that job no longer exists, to a substantially Rico, its officers, agents, successors, and assigns, shall: equal job, without prejudice to his seniority and other I. Cease and desist from: rights and privileges, and to make him whole for any (a) Refusing to bargain on request with the Union. loss of earnings suffered by him by reason of the discrim- (b) Unilaterally discontinuing its Christmas bonus. ination against him in January and in September 1980 (c) Refusing to grant benefits or discontinuing existing computed in the same manner as outlined in the preced- benefits to employees because they engaged in union ac- ing paragraph. tivities, or in concerted activities for their mutual aid or I shall further recommend that Respondent bargain on request with the Union, and that all references to certain " In the event no exceptions are filed as provided by Sec. 102.46 of disciplinary action be removed from the files maintained t he Rules and Regulations of the National Labor Relations Board, the by Respondent concerning Felix Ramos. findings, conclusions, and recomm ended Order herein shall, s 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 * See, generally, Isis Plumbing and Heating Ca, 138 NLRB 716 (1962). shall be deemed waived for all purposes. 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD night of September 12, Respondent has violated Section CONCLUSIONS OF LAW 8(a)(1). (3), and (4) of the Act. 1. Isla Verde Hotel Corporation d/b/a Hotel Holiday After handing Ramos the discharge letter in the casino Inn de Isla Verde is an employer engaged in commerce at 3:30 a.m. Rivera then said that Ramos could "defend" within the meaning of Section 2(6) and (7) of the Act. himself at the meeting with Luna at 1 on Monday, Sep- 2. Asociacion de Empleados del Casino del Holiday tember 15. However, Rivera stated that he never both- Inn de Isla Verde is a labor organization within the ered to inform Luna about the situation. I find this rather meaning of Section 2(5) of the Act. hard to believe, but even harder to believe was Luna's 3. By unilaterally discontinuing its Christmas bonus in testimony that when Castillo and Ramos came to his December 1979, Respondent has violated Section 8(a(l) office Monday afternoon he knew nothing about the and (5) of the Act. matter. Since this meeting is really only a postscript to 4. By refusing to bargain about the discontinuance of the main events in this case, I need make no findings the Christmas bonus Respondent has violated Section concerning it, other than to note my disbelief of the testi- 8(a)(l) and (5) of the Act. mony of Rivera that he never notified Luna of the meet- 5. By refusing to reinstate unfair labor practice strik- ing's purpose, and Luna's denial of any knowledge of the ers, Respondent has violated Section 8(a)l) and (3) of incident in the casino on September 12. This reinforces the Act. my lack of confidence in the credibility of either Luna or 6. By sending letters threatening them with reprisals Rivera. for engaging in protected concerted activity, Respondent has violated Section 8(aX1) and (3) of the Act. Iv. THE REMEDY 7. By requiring employees to waive statutory rights in Havig fond hat espoden hasengaed n an is order to obtain reinstatement, Respondent has violated H..in, round ,h., Responden, has »^gg in and i.s ^ oT S " l> n ° h t " e engaging in certain unfair labor practices, I shall recom- ecn 81) of t A. ~*,. .* , , . . ., .. .1*1 *8. By discharging its employee, Felix Ramos, on Janu- mend that it cease and desist therefrom, and take certain .Bischarging it e ix R o o Janu- re- * * -i * _i re i- r. **^~ey 26, 1980, Respondent has violated Section 8(aXl) and affirmative action designed to effectuate the policies of ary26,19 eo n As v the Act. 9. By denying an unpaid leave to its employee, Felix Having found that the strike which began on Decem- Ramos, in June 1980, Respondent has violated Section ber 20, 1979, was an unfair labor practice strike I shall 8(a)(l), (3), and (4) of the Act. recommend that Respondent offer Jose Crespo, Hum- 10. By issuing a written warning to its employee, Felix berto Sanchez, Amaldo Delgado, and Geraldo Rodri- Ramos, in July 1980, Respondent has violated Section guez immediate and full reinstatement to their former 8(a)(l), (3), and (4) of the Act. jobs, or, if those jobs no longer exist, to substantially 11. By changing the shift and days off of its employee, equivalent jobs, without prejudice to their seniority and Felix Ramos, in September 1980, Respondent has violat- other rights and privileges, and make these employees, ed Section 8(a)(l), (3), and (4) of the Act. together with all other employees who went on strike on 12. By denying to its employee, Felix Ramos, the right December 20 and 21, 1979, against Respondent's unfair to swap shifts with other employees, Respondent has labor practices, whole for any loss of earnings they suf- violated Section 8(aXI), (3), and (4) of the Act. fered by reason of Respondent's unfair labor practices 13. By revoking an agreement to condone the conduct and the discrimination against them by payment to them of its employee, Felix Ramos, on September 12, 1980, of sums of money equal to that which they normally and thereby causing his discharge, Respondent has vio- would have earned, absent the unfair labor practices and lated Section 8(a)(l), (3), and (4) of the Act. discrimination against them, including the 1979 Christ- Upon the foregoing findings of fact, conclusions of mas bonus, less net earnings during such period, with in- law, and the entire record, and pursuant to Section 10(c) terest thereon, to be computed in the manner prescribed of the Act, I issue the following recommended: in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977). 66 ORDER"7 I shall further recommend that Respondent offer Felix The Respondent, Isla Verde Hotel Corporation d/b/a Ramos immediate and full reinstatement to his former Hotel Holiday Inn de Isla Verde, Isla Verde, Puerto job or, if that job no longer exists, to a substantially Rico, its officers, agents, successors, and assigns, shall: equal job, without prejudice to his seniority and other I. Cease and desist from: rights and privileges, and to make him whole for any (a) Refusing to bargain on request with the Union. loss of earnings suffered by him by reason of the discrim- (b) Unilaterally discontinuing its Christmas bonus. ination against him in January and in September 1980 (c) Refusing to grant benefits or discontinuing existing computed in the same manner as outlined in the preced- benefits to employees because they engaged in union ac- ing paragraph. tivities, or in concerted activities for their mutual aid or I shall further recommend that Respondent bargain on request with the Union, and that all references to certain " In the event no exceptions are filed as provided by Sec. 102.46 of disciplinary action be removed from the files maintained t he Rules and Regulations of the National Labor Relations Board, the by Respondent concerning Felix Ramos. findi ngs, conclusions, and recomm ended Or der herein shall, s 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 * See, generally, Isis Plumbing and Heating Ca, 138 NLRB 716 (1962). shall be deemed waived for all purposes. HOTEL HOLIDAY INN DE ISLA VERDE 511 protection, or because they filed charges with or gave employees who engaged in an unfair labor practice strike testimony to the Board under the Act. on and after December 20, 1979, for any losses of earn- (d) Issuing threats of discipline and warning notices to ings suffered by them in the manner set forth in section employees because they engaged in union activities, or in IV of this Decision, entitled "The Remedy." concerted activities for their mutual aid or protection, or (c) Remove from the files maintained by Respondent because they filed charges with or gave testimony to the and concerning Felix Ramos all reference to disciplinary Board under the Act. actions taken against him on January 26, July 2, and Sep- (e) Requiring employees to sign waivers of statutory tember 12, and September 15, 1980. rights in order to obtain reinstatement. (d) Preserve and, upon request, make available to the (f) Discharging or refusing to reinstate or revoking Board or its agents, for examination and copying, all agreements to condone activities of its employees for en- payroll records, social security payment records, time- gaging in union activities, or in concerted activities for cards, personnel records and reports, and all records nec- their mutual aid or protection or because they filed essary to analyze the amount of backpay due under the charges with or gave testimony to the Board under the terms of this Order. Act. (e) Post at its place of business in Isla Verde, Carolina, (g) In any like or related manner interfering with, re- Puerto Rico, in the English and Spanish languages, straining, or coercing its employees in the exercise of the copies of the attached notice marked "Appendix."6 rights guaranteed them by Section 7 of the Act. Copies of said notice, on forms provided by the Regional 2. Take the following affirmative action designed to ef- Director for Region 24, after being duly signed by Re- fectuate the policies of the Act: spondent's authorized representative, shall be posted by (a) Upon request, bargain with the Union as the repre- Respondent immediately upon receipt thereof, and be sentative of employees in the following unit admitted to maintained by it for 60 consecutive days thereafter, in be appropriate: conspicuous places, including all places where notices to All croupier employees of Respondent employed at employees are customarily posted. Reasonable steps shall its hotel, exclusive of all other employees, officer be taken by Respondent to insure that said notices are clerical employees, guards and all supervisors as de- not altered defaced, or covered by any other material. fined in Section 2(11) of the Act. (f) Notify the Regional Director for Region 24, in writing, within 20 days from the date of this Order, what (b) Offer to Jose Crespo, Humberto Sanchez, Amaldo steps Respondent has taken to comply herewith. Delgado, Geraldo Rodriguez, and Felix Ramos immedi- ate and full reinstatement to their former jobs, or, if " In the event that this Order is enforced by a Judgment of a United those jobs no longer exist, to substantially equivalent States Court of Appeals. the words in the notice reading "Posted by jobs, without prejudice to their seniority and other rights Order of the National Labor Relatons Board" sl rppeals Enforcing an (and privileges, and make them,)gant toeth a Judgmen of the United States Court of Appeals Enforcing an and privileges, and make them, together with all other Order of the National Labor Relations Board." HOTEL HOLIDAY INN DE ISLA VERDE 511 protection, or because they filed charges with or gave employees who engaged in an unfair labor practice strike testimony to the Board under the Act. on and after December 20, 1979, for any losses of earn- (d) Issuing threats of discipline and warning notices to ings suffered by them in the manner set forth in section employees because they engaged in union activities, or in IV of this Decision, entitled "The Remedy." concerted activities for their mutual aid or protection, or (c) Remove from the files maintained by Respondent because they filed charges with or gave testimony to the and concerning Felix Ramos all reference to disciplinary Board under the Act. actions taken against him on January 26, July 2, and Sep- (e) Requiring employees to sign waivers of statutory tember 12, and September 15, 1980. rights in order to obtain reinstatement. (d) preserve and, upon request, make available to the (f) Discharging or refusing to reinstate or revoking Board or its agents, for examination and copying, all agreements to condone activities of its employees for en- payroll records, social security payment records, time- gaging in union activities, or in concerted activities for cards, personnel records and reports, and all records nec- their mutual aid or protection or because they filed essary to analyze the amount of backpay due under the charges with or gave testimony to the Board under the terms of this Order. Ac t. (e) Post at its place of business in Isla Verde, Carolina, (g) In any like or related manner interfering with, re- Puerto Rico, in the English and Spanish languages, straining, or coercing its employees in the exercise of the copies of the attached notice marked "Appendix."" rights guaranteed them by Section 7 of the Act. Copies of said notice, on forms provided by the Regional 2. Take the following affirmative action designed to ef- Director for Region 24, after being duly signed by Re- fectuate the policies of the Act: spondent's authorized representative, shall be posted by (a) Upon request, bargain with the Union as the repre- Respondent immediately upon receipt thereof, and be sentative of employees in the following unit admitted to maintained by it for 60 consecutive days thereafter, in be appropriate: conspicuous places, including all places where notices to All croupier employees of Respondent employed at employees are customarily posted. Reasonable steps shall its hotel, exclusive of all other employees, officer b e ta k e n by Respondent to insure that said notices are clerical employees, guards and all supervisors as de- "altered defaced, or covered by any other material. fined in Section 2(11) of the Act. (f) Notify the Regional Director for Region 24, in writing, within 20 days from the date of this Order, what (b) Offer to Jose Crespo, Humberto Sanchez, Amaldo steps Respondent has taken to comply herewith. Delgado, Geraldo Rodriguez, and Felix Ramos immedi- ate and full reinstatement to their former jobs, or, if In the event that this Order is enforced by a Judgment of a United those jobs no longer exist, to substantially equivalent States Court of Appeals, the words in the notice reading "Posted by jobs, without prejudice to their seniority and other rights Order of the National Labor Relations Board" shall read "Posted Pusu- ant to a Judgment of the United States Court of Appeals Enforcing an and privileges, and make them, together with all other Order of the National Labor Relations Board." HOTEL HOLIDAY INN DE ISLA VERDE 511 protection, or because they filed charges with or gave employees who engaged in an unfair labor practice strike testimony to the Board under the Act. on and after December 20, 1979, for any losses of earn- (d) Issuing threats of discipline and warning notices to ings suffered by them in the manner set forth in section employees because they engaged in union activities, or in IV of this Decision, entitled "The Remedy." concerted activities for their mutual aid or protection, or (c) Remove from the files maintained by Respondent because they filed charges with or gave testimony to the and concerning Felix Ramos all reference to disciplinary Board under the Act. actions taken against him on January 26, July 2, and Sep- (e) Requiring employees to sign waivers of statutory tember 12, and September 15, 1980. rights in order to obtain reinstatement. (d) preserve and, upon request, make available to the (f) Discharging or refusing to reinstate or revoking Board or its agents, for examination and copying, all agreements to condone activities of its employees for en- payroll records, social security payment records, time- gaging in union activities, or in concerted activities for cards, personnel records and reports, and all records nec- their mutual aid or protection or because they filed essary to analyze the amount of backpay due under the charges with or gave testimony to the Board under the terms of this Order. Ac t. (e) Post at its place of business in Isla Verde, Carolina, (g) In any like or related manner interfering with, re- Puerto Rico, in the English and Spanish languages, straining, or coercing its employees in the exercise of the copies of the attached notice marked "Appendix."" rights guaranteed them by Section 7 of the Act. Copies of said notice, on forms provided by the Regional 2. Take the following affirmative action designed to ef- Director for Region 24, after being duly signed by Re- fectuate the policies of the Act: spondent's authorized representative, shall be posted by (a) Upon request, bargain with the Union as the repre- Respondent immediately upon receipt thereof, and be sentative of employees in the following unit admitted to maintained by it for 60 consecutive days thereafter, in be appropriate: conspicuous places, including all places where notices to All croupier employees of Respondent employed at employees are customarily posted. Reasonable steps shall its hotel, exclusive of all other employees, officer b e ta k e n by Respondent to insure that said notices are clerical employees, guards and all supervisors as de- "altered defaced, or covered by any other material. fined in Section 2(11) of the Act. (f) Notify the Regional Director for Region 24, in writing, within 20 days from the date of this Order, what (b) Offer to Jose Crespo, Humberto Sanchez, Amaldo steps Respondent has taken to comply herewith. Delgado, Geraldo Rodriguez, and Felix Ramos immedi- ate and full reinstatement to their former jobs, or, if In the event that this Order is enforced by a Judgment of a United those jobs no longer exist, to substantially equivalent States Court of Appeals, the words in the notice reading "Posted by jobs, without prejudice to their seniority and other rights Order of the National Labor Relations Board" shall read "Posted Pusu- ant to a Judgment of the United States Court of Appeals Enforcing an and privileges, and make them, together with all other Order of the National Labor Relations Board." HOTEL HOLIDAY INN DE ISLA VERDE 511 protection, or because they filed charges with or gave employees who engaged in an unfair labor practice strike testimony to the Board under the Act. on and after December 20, 1979, for any losses of earn- (d) Issuing threats of discipline and warning notices to ings suffered by them in the manner set forth in section employees because they engaged in union activities, or in IV of this Decision, entitled "The Remedy." concerted activities for their mutual aid or protection, or (c) Remove from the files maintained by Respondent because they filed charges with or gave testimony to the and concerning Felix Ramos all reference to disciplinary Board under the Act. actions taken against him on January 26, July 2, and Sep- (e) Requiring employees to sign waivers of statutory tember 12, and September 15, 1980. rights in order to obtain reinstatement. (d) Preserve and, upon request, make available to the (f) Discharging or refusing to reinstate or revoking Board or its agents, for examination and copying, all agreements to condone activities of its employees for en- payroll records, social security payment records, time- gaging in union activities, or in concerted activities for cards, personnel records and reports, and all records nec- their mutual aid or protection or because they filed essary to analyze the amount of backpay due under the charges with or gave testimony to the Board under the terms of this Order. Ac t. (e) Post at its place of business in Isla Verde, Carolina, (g) In any like or related manner interfering with, re- Puerto Rico, in the English and Spanish languages, straining, or coercing its employees in the exercise of the copies of the attached notice marked "Appendix."" rights guaranteed them by Section 7 of the Act. Copies of said notice, on forms provided by the Regional 2. Take the following affirmative action designed to ef- Director for Region 24, after being duly signed by Re- fectuate the policies of the Act: spondent's authorized representative, shall be posted by (a) Upon request, bargain with the Union as the repre- Respondent immediately upon receipt thereof, and be sentative of employees in the following unit admitted to maintained by it for 60 consecutive days thereafter, in be appropriate: conspicuous places, including all places where notices to All croupier employees of Respondent employed at employees are customarily posted. Reasonable steps shall its hotel, exclusive of all other employees, officer b e ta k e n by Respondent to insure that said notices are clerical employees, guards and all supervisors as de- "altered defaced, or covered by any other material. fined in Section 2(11) of the Act. (f) Notify the Regional Director for Region 24, in writing, within 20 days from the date of this Order, what (b) Offer to Jose Crespo, Humberto Sanchez, Amaldo steps Respondent has taken to comply herewith. Delgado, Geraldo Rodriguez, and Felix Ramos immedi- ate and full reinstatement to their former jobs, or, if In the event that this Order is enforced by a Judgment of a United those jobs no longer exist, to substantially equivalent States Court of Appeals, the words in the notice reading "Posted by jobs, without prejudice to their seniority and other rights Order of the National Labor Relations Board" shall read "Posted Pusu- ant to a Judgment of the United States Court of Appeals Enforcing an and privileges, and make them, together with all other Order of the National Labor Relations Board."