Crown Cork De Puerto Rico, Inc

CROWN CORK DE PUERTO RICO 243 Crown Cork de Puerto Rico, Inc. and Union Inde- pendiente de Trabajadores de la Crown Cork and S.I.U. de Puerto Rico, Caribe y Latinoa- merica a/a S.I.U. of North America, AFL-CIO, Party to the Contract S.I.U. de Puerto Rico, Caribe y Latinoamerica a/a S.I.U. of North America, AFL-CIO and Union Independiente de Trabajadores de la Crown Cork Crown Cork de Puerto Rico, Inc. and Union Inde- pendiente de Trabajadores de la Crown Cork, Petitioner. Cases 24-CA-3787, 24-CA-3820, 24-CB-980, and 24-RC-5775 13 December 1984 SUPPLEMENTAL DECISION, ORDER, AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND DENNIS On 7 February 1979 Administrative Law Judge Irwin H. Socoloff issued the attached decision. The Respondent Employer and the Respondent Union filed exceptions and supporting briefs, and the Charging Party Union filed further exceptions and a supporting brief. Thereafter, on 19 July 1979 the Board issued its decision' and remanded this case to the judge for further credibility determinations. On 31 August 1979 Administrative Law Judge So- coloff issued the attached supplemental decision. The Respondent Employer filed further exceptions and a supporting brief, and counsel for the General Counsel filed a brief in support of the supplemental decision. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision, the sup- plemental decision, and the reeord in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, 2 and conclusions 3 only to ' 243 NLRB 569 2 The Respondent Employer asserts that the judge's resolutions of credibility, findings of fact, and conclusions of law are the result of bias After a careful examination of the entire record, we are satisfied that this allegation is without merit There is no basis for finding that bias and par- tiality existed merely because the judge resolved important factual con- flicts in favor of the General Counsel's witnesses As the Supreme Court stated in ,NLRB v Pittsburgh Steamship Co. 337 US 656. 659 (1949), IT]otal rejection of an opposed view cannot of itself impugn the integri- ty or competence of a trier of fact " Furthermore, the Board's established policy is not to overrule an administrative law judge's credibility resolu- tions unless the clear preponderance of all of the relevant evidence con- vinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362, (3d Cir 1951) We have carefully exam- ined the record and find no basis for reversing the findings 3 In the absence of exceptions. we adopt the judge's dismissal of the complaint allegations that the Respondent Employer violated Sec 8(a)(1) the extent consistent with this Supplemental Deci- sion and Order. In the underlying decision, the judge was pre- sented in part with the question whether Respond- ent Crown Cork de Puerto Rico, Inc. (hereafter Crown Cork or the Respondent Employer), and Respondent S.I.U. de Puerto Rico, Caribe 'y Latin- oamerica a/a S.I.U. of North America, AFL-CIO (hereafter SIU or the Respondent Union), engaged in unlawful conduct when they negotiated and exe- cuted a collective-bargaining agreement on 12 August 1976, 4 and thereafter maintained and en- forced this agreement. It has been the General Counsel's and the Charging Party's position that this conduct violated the Act because it occurred at a time when a competing labor organization, Union Independiente de Trabajadores de la Crown Cork (Union Independiente), had filed a representa- tion petition and was seeking to represent Crown Cork's production and maintenance employees who theretofore had been represented by SIU. Crown Cork and SIU have contended that the agreement executed on 12 August was merely an interim ex- tension agreement to succeed the expiring contract between them, that it did not provide for any addi- tional benefits for covered employees, and that its execution and maintenance was lawful under G & H Towing Co., 168 NLRB 589(1967). The judge rejected the Respondents' contentions, finding that the Respondents' 12' August agreement was de- signed to favor the incumbent SIU, increased em- ployer contributions to a SIU medical plan, and violated the Respondents' duty to maintain strict neutrality in ,the face of competing representational claims by the incumbent SIU and by Union Inde- pendiente. In finding these violations, the judge in effect relied on Shea Chemical Corp., 121 NLRB 1027 (1958), Which held that an employer must remain neutral and refrain from further negotia- tions , when an incumbent bargaining representa- tive's status is contested by a valid question con- cerning representation raised in support of a rival labor organization. Subsequent to the issuance of the judge's initial decision, the Board overruled Shea Chemical in RCA Del Caribe, Inc., 262 NLRB 963 (1982), hold- ing that "the mere filing of a representation peti- of the Act by pointing a camera at striking employees who were waiting to vote in a representation election Chairman' Dotson does not adopt the judge's finding that the Respond- ent Employer's statements to employees Fernandez and Rivera created the impression of surveillance in violation of Sec 8(a)(1) In identifying supporters of the Charging Party Union, the Respondent made no refer- ence to the method by which it learned of these employees' union activi- ties and the record provides no basis for finding that such knowledge was unlawfully obtained 4 Unless otherwise indicated, all dates are in 1976 273 NLRB No. 45 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion by an outside, challenging union will no longer require or permit an employer to withdraw from bargaining or executing a contract with an in- cumbent union. . . ." 5 In view of the Board's deci- sion in RCA Del Caribe, there no longer is any basis for finding that Crown Cork's negotiation and execution of the extension agreement on 12 August unlawfully assisted the incumbent SIU. 6 Accord- ingly, we shall dismiss the allegations that Crown Cork violated Section 8(a)(2) and (3) of the Act by executing and maintaining this agreement. Like- wise, we shall dismiss the related allegations that SIU's conduct violated Section 8(b)(2) and (1)(A). In view of the above, we shall modify the judge's conclusions of law to the extent that the violations found by him are based on the execution and enforcement of the 12 August agreement. Spe- cifically, we shall dismiss the allegations that Crown Cork violated Section 8(a)(2) of the Act when it acted in furtherance of its bargaining rela- tionship with the incumbent SIU, when it informed employees that SIU was their representative, and when it instructed its employees to attend a meet- ing conducted by SIU at the plant during working hours. However, we shall- not disturb the judge's find- ing that the strike which commenced on 24 Sep- tember was an unfair labor practice strike from its inception. In finding that the strike was caused in part by unfair labor practices, we rely on the exist- ence of numerous acts of misconduct which pre- ceded the commencement of the strike, including violations of Section 8(a)(1) and (3). Such miscon- duct was directed at the most prominent supporters of Union Independiente ,including incidents occur- ring in May or June, July, August, and September and culminated in the discriminatory discharge of employee Heriberto Padua, vice president of Union Independiente, on 24 September. Accordingly, the record supports the judge's finding that the strike was an unfair labor practice strike, notwithstanding that the strike additionally was based on the lawful execution of the extension agreement. We also shall not disturb the judge's finding that Crown Cork violated Section 8(a)(1) of the Act on 25 September, the day after the strike began, when it threatened to discharge the striking employees. The discharge threat was premised on these ern- , 5 RCA Del Caribe, supra at 965 6 Chairman Dotson and Member Dennis did not participate in RCA Del Caribe and express no view here on whether that case was correctly decided Absent a majority to overrule RCA Del Caribe, Chairman Dotson and Member Dennis consider , themselves institutionally bound to apply that precedent in this case In view of our holding herein, it is immaterial whether the 12 August agreement was merely an extension of the expiring agreement without modification of benefits, as contended by the Respondents, or also served to Increase benefits under the medical plan ployees' purported breach of the no-strike provi- sion under the extension agreement. 7 The strike was based on unfair labor practices which were not subject to resolution by the applicable grievance provision. 8 Moreover, the strike was just one aspect , of the ongoing, underlying dispute with re- spect to the representative status of SIU and Union Independiente's efforts to replace it. Accordingly, Crown Cork's threat to discharge employees pursu- ant to- the no-strike provision was at its core an at- tempt to restrict the- unit employees' selection of a bargaining representative. See generally NLRB v. Magnavox Co. of Tennessee, 415 U.S. 322 (1974), re- hearing denied 416 U.S. 952 (1974). See also Ser- vair, Inc., 265 NLRB 181 (1982), enfd. 726 F.2d 1435 (9th Cir. 1984). Accordingly we agree with the judge that this threat coerced employees' exer- cise of Section 7 rights in violation of Section 8(a)(1).6 In his decision, the judge also found that Crown Cork violated Section 8(a)(3) on 21 June when it transferred employee Esteban Arroyo from the first to the third shift. The judge supported this finding solely on the basis that the Respondent Em- ployer's president, Arturo Diaz, conducted a meet- ing in August with members of Union Indepen- diente at which they complained of alleged acts of discrimination. At the meeting, Diaz requested the opportunity to "fix everything up" and "put every- thing back to normal." The judge found that Diaz' statements during this meeting, and the subsequent reassignment of Arroyo back to the first shift, evi- denced that the original transfer was discriminato- ry. In effect the judge has used employee com- plaints regarding shift changes, pay reductions, and job reclassifications, which employees had claimed were discriminatory, and the Respondent Employ- er's subsequent efforts to resolve these disputes as 7 This provision states as follows During the life of this Agreement, the Company shall not order lockouts During the life of this Agreement, the Union shall not cause or permit its members to cause, nor shall the Union members for any reason participate in a strike, nor a slowdown, nor a sit- down or permanent strike within the plant, nor any other type of interference with the Company's production The employees in- volved in any conduct prohibited by this Article shall be submitted to disciplinary measures up to and including discharge . 8 The scope of the bargaining agreement's grievance provision is limit- ed to cover only disputes over the application or interpretation of the terms of the contract Member Dennis concurs in the majority's finding that the 24 Septem- ber strike was a protected unfair labor practice strike despite the contrac- tual no-strike clause Under Arlan's Department Store of Michigan, 133 NLRB 802, 807 (1961), "only strikes in protest against serious unfair labor practices should be held immune from general no-strike clauses In Member Dennis' view, the Company's unfair labor practices were "seri- ous" within the meaning of Ann's In addition to discharging employee Padua, vice president of the rival union, the Company engaged in numer- ous other acts in violation of Sec 8(a)(1) and (3), all designed to prevent its employees from exercising their fundamental Sec 7 right to select the rival union as their bargaining representative CROWN CORK DE PUERTO RICO 245 an admission by the Respondent Employer that its earlier actions were discriminatory. These settle- ment efforts however were primarily designed to prevent an anticipated strike by the unit employees, and were not admissions of misconduct for the Re- spondent Employer's earlier actions with respect to Arroyo. On the contrary, the evidence supports Crown Cork's claim that Arroyo's initial transfer, one of several such transfers which occurred on 21 June, was based on the need to train certain em- ployees as a result of the recent introduction of a third shift during the previous month." In his decision, the judge also found that Crown Cork violated Section 8(a)(3) of the Act when it "terminated" Miguel Carrasquillo as leadman on 19 July and reduced his pay 25 cents per hour. We agree. However, as a remedy for this violation the judge recommended only that Carrasquillo be made whole for lost wages as a result of this inci- dent. In adopting the judge's decision in this regard, we shall modify his remedy with respect to Carrasquillo's demotion and in addition shall re- quire Crown Cork to reinstate Carrasquillo to his former leadman position or, if that position no longer exists, to a substantially equivalent position. Walker Electric Co., 219 NLRB 481 (1975). Finally, in light of our agreement with the judge that the strike herein was an unfair labor practice strike, and that the strikers had offered to return to work prior to the representation election conduct- ed on 29 October 1976," we adopt his finding that unfair labor practice striker replacements were in- eligible to vote, that on this basis 190 challenged ballots be sustained, and that the remaining chal- lenged ballots are not determinative. Accordingly, we adopt his finding that a 'majority of the valid ballots have been cast for Union Independiente, and that it should be certified as the collective-bar- gaining representative in the appropriate unit. " Although the Judge used the same rationale as that noted above in finding that the transfer of employee Guadalupe Rivera on 19 July from the first to the third shift also violated Sec 8(a)(3). we agree with the judge's ultimate conclusion that this transfer was discriminatorily moti- vated To support this conclusion, we rely on evidence that on 19 July Crown Cork engaged in a number of adverse changes affecting job as- signments and wage rates which were found to have violated Sec 8(a)(3) of the Act Further, although other employees were reassigned shifts on 19 July, the conclusion that Rivera's transfer was discriminatory is addi- tionally supported by our adoption of other concurrent acts of discrimi- nation against Rivera whereby Crown Cork departed from its longstand- ing practice of allowing Rivera to work during his vacation period, and by its belated decision to eliminate his leadman's pay, notwithstanding his demotion from that position had occurred 16 months before " The election was conducted pursuant to a Decision and Direction of Election The tally was 118 for Union Indepenchente and 15 for SIU, there were 213 challenged ballots, a sufficient number to affect the results of the election ORDER, The National Labor Relations Board orders that the Respondent, Crown Cork de Puerto Rico, Inc., Carolina, Puerto Rico, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Discharging or changing the rates of pay, classifications, shifts, and other terms and condi- tions of employment of its employees because of their union activities and sympathies. (b) Refusing to reinstate unfair labor practice strikers upon their unconditional offer to return to work. (c) Threatening summarily to discharge unfair labor practice strikers. (d) Threatening to discharge employees because of their union activities and sympathies. (e) Creating the impression of surveillance of the union activities of its employees. (f) . Soliciting employees to encourage other em- ployees to support SIU. (g) Prohibiting in-plant meetings- of Union Inde- pendiente while permitting such meetings of SIU. (h) In any other manner interfering with, re- straining, or coercing employees in the exercise of their rights under Section 7 of the Act to engage in concerted activities for their mutual aid and protec- tion, or to refrain from such activities. 2. Take the following affirmative action neces- Sary to effectuate the policies of the Act. (a) Offer Heriberto Padua and all the employees who engaged in a concerted work stoppage and strike commencing 24 September 1976, immediate and full reinstatement to their - former jobs or, if those jobs no longer exist, to substantially equiva- lent positions of employment, without prejudice to their seniority or any other rights and privileges previously enjoyed, discharging, if necessary, other employees who have been hired in their places. (b) Make Heriberto Padua whole for any loss of pay he may have suffered by reason of the discrim- ination against him-by payment to him of a sum of money equal to that which he normally would have earned as wages from the date of the discrim- ination, in the manner set forth in E W. Woolworth Co., 90 NLRB 289 . (1950), less his net earnings during such period, with interest as set forth in Isis Plumbing Co., 138 NLRB 716 (1962), and Florida Steel Corp., 231 NLRB 651 (1977). (c) Make whole all the employees who engaged in a concerted work stoppage and strike commenc- ing 24 September 1976, for any losses they may have suffered by reason of the failure and refusal to reinstate them to their former jobs, or to substan- tially equivalent positions, upon their unconditional 246 DECISIONS OF NATIONALLABOR RELATIONS BOARD offer to return to work, -by payment to each of them of .a sum of money equal, to that which that employee normally would have ,earned as wages from the date of the discrimination to the date Of the Respondent's offer of reinstatement in the manner set forth in paragraph (b) above. (d) Make ,Guadalupe Rivera, Rigoberto Febres, Miguel Carrasquillo, and Luis Nigagliom whole for the losses they suffered as a result of the unläwful reductions in their rates of pay in the manner set forth in paragraph (b) above. -(e) , Make Guadalupe Rivera whole for any loss of pay he may have suffered as a result of the re- fusal to allow , him to work during his scheduled vacation in 1976 in the manner set forth in para- graph (b) above. (1) Offer Miguel Carrasquillo jinmediate and full reinstatement to his former position as leadman, with all duties and functions or, if that position no longer exists, to a substantially equivalent position. (g) Remove from its files any reference to the unlawful discharge of Heriberto Padua, and notify him in writing that this has been done and that the discharge will not be used as action against him in any way. (h) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (i) •Post at its Carolina, Puerto Rico facility copies of the attached ,notice marked, "Apperi- dix."" Copies of the notice, in English ,and in Spanish, on forms provided by the Regional Direc- tor for -Region 24, after being signed by the Re- spondent's - authorized representative, shall be posted by the Respondent :immediately- upon re- ceipt and maintained for 60 . consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (j) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. IT IS FURTHER ORDERED that the complaint filed against the Respondent S.I.U. de Puerto Rico, 12 If this Ordei- is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall _read "Posted,Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- 'al Labor Relations Board S' Caribe y Latinoamerica a/a S.I.U. of North Amer- ica, AFL-CIO is dismissed in its entirety. IT IS FURTHER ORDERED that the challenges to the ballots of the 190 strike replacements in Case 24-RC-5775 are sustained and that Case 24-RC- 5775 is severed from the unfair labor practice pro- ceeding. . CERTIFICATION OF REPRESENTATIVE IT IS CERTIFIED that a majority of the valid bal- lots in Case 24-RC75775 have been cast for Union Independiente de Trabajadores de la Crown Cork and that it is the exclusive collective-bargaining representative in the following appropriate unit: All production and maintenance employees employed by Crown Cork de Puerto Rico, Inc. at its factory located in Carolina, Puerto Rico, but excluding all office clerical employ- ees, sales personnel, professional employees, drivers, guards and supervisors as defined in the Act. -APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The •National Labor Relations Board has found that We violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT discharge or change the rates of pay, classifications, shifts, and other terms and con- ditions of employment of employees because of their union activities and sympathies. WE WILL NOT threaten summarily, to discharge unfair labor practice strikers and WE WILL NOT refuse to reinstate them upon their unconditional offer to return to work. WE WILL NOT threaten to discharge employees because of their union activities and sympathies. WE WILL NOT create the impression of surveil- lance of the union activities of employees. CROWN, CORK DE PUERTO RICO 247 WE WILL NOT solicit employees to encourage other employees to support SM. WE WILL NOT prohibit in-plant meetings of Union Independiente while permitting such meet- ings of SIU: WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights under the National Labor Relations Act.We will offer. Heriberto Padua, and all the em- ployees who engaged in a strike commencing 24 September 1976, and who offered, unconditionally, to return to work on 22 October 1976, immediate and full reinstatement to their former or equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, dis- charging, if necessary, other employees who have been hired in their places. WE WILL make Henberto Padua, and the strik- ing employees, whole for any loss of earnings be- cause of the discrimination against them, plus inter- est. WE WILL expunge from our files any reference to the discharge of Heriberto Padua and notify him in writing that this has been done and that evi- dence of this unlawful discharge will not be used as a basis for future action against him. WE WILL make Guadalupe Rivera whole for any loss of pay as a result of our refusal to allow him to work during his scheduled vacation in 1976, and WE WILL make Guadalupe Rivera, Rigoberto Febres, Miguel Carrasquillo, and Luis Nigaglioni whole for the reductions in their rates of pay, plus interest. WE WILL reinstate Miguel Carrasquillo to his po- sition as • leadman or, if that postion no longer exists, to a substantially equivalent position, with- out prejudice to any seniority or other rights and. privileges previously enjoyed. CROWN CORK DE PUERTO RICO, INC. - DECISION STATEMENT OF THE CASE IdwiN H SOCOLOFF, Administrative Law Judge On charges filed October 29 and December 27, 1976, and February 17, 1977, by Union Independiente de Trabaja- dores de, la Crown Cork (the Independent Union), against Crown Cork de Puerto Rico, Inc. and S.I.0 de Puerto Rico, Canbe y Latinoamenca a/a S.I.U. of North America, AFL-CIO (Respondent Employer and Re- spondent Union), the General Counsel of the National Labor Relations Board, by the Regional Director for Region 24, issued a consolidated complaint dated March 23, 1977, alleging violations by the Respondents of Sec- tion 8(a)(1), (2), and (3), Section 8(b)(1)(A) and (2) and Section 2(6) and (7) of the National Labor Relations Act. Respondents, by their answers, denied the commission of any unfair labor practices On March 24, 1977, the Re- gional Director Ordered that Case 24-RC-5775 be con- solidated with the above-referenced unfair labor practice cases for purposes of hearing and decision with respect to the issues raised by the Petitioner's objections to con- duct affecting the results of the election in that case, as well as disposition of 213 challenged ballots. Pursuant , to notice, a trial was held before me in Hato Rey, Puerto Rico, on April 25 and May' 16 through May 26, 1977, at which all parties were represented by coun- sel and were afforded full opportunity to be heard, to ex- amine and cross-examine witnesses',_ and to introduce evi- dence. Thereafter, the parties filed .briefs which have been duly considered On the entire record in this case, and from my obser- vation of the witnesses, I make the following FINDINGS OF FACT I. JURISDICTION Crown Cork de Puerto Rico, Inc is a Delaware cor- poration engaged in the manufacture, sale, and distribu- tion of metal cans; bottle caps, ,and related products at its plant located in the city of Carolina, Commonwealth of Puerto Rico. During the year preceding issuance of the complaint, a representative period, Respondent .Employ- er purchased goods and materials valued in excess of $50,000 which were transported and delivered to its plant directly from points in the United States located outside the Commonwealth of Puerto Rico. I find that Crown Cork de Puerto Rico, Inc. is an , employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7), of the Act. II. LABOR ORGANIZATIONS S.I.U. Puerto Rico, Canbe y Latinomenca a/a S.I.U. of North America, AFL-CIO and Union Independiente de Trabajadores de la 'Crown Cork are labor organiza- tions within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background Respondent Union S.I.U. was certified on August 17, 1973, as the collective-bargaining representative of the Crown Cork production and , maintenance employees working at the Carolina, Puerto Rico plant Thereafter, Crown Cork and S I U. entered into a collective-bargain- ing agreement, containing union-security and checkoff provisions, which was to expire on August 12, 1976. In May 1976, certain employees formed the Independent Union and on May 17 that union filed a representation petition seeking an election among the unit employees (Case 24-RC-5775) On August 2, the Regional Director issued a Decision and Direction of Election in the con- tractual unit. Immediately preceding the scheduled expiration of their contract, on August 12, Respondent 4mployer and Respondent Union executed a "Stipulation" whereby they agreed to extend the contract, including the union- 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD security and checkoff provisions, until such time as the representation proceedings before the Board were re- solved "in a final and binding manner." The stipulation further provided for increased payments by Crown Cork 18 the Contractual "Welfare Plan," from $6.50 per week per employee to $55 per: month Per employee, because of "the substantial increase there has been in the cost of medical-hospital expenses." In this proceeding, the General Counsel contends that, by the execution and maintenance of the contract exten- sion, including its union-security and checkoff provisions, notwithstanding the existence of a real question concern- ing representation,' the Respondents violated Section 8(a)(3) and (2) and Section 8(b)(2) and (1)(A) of the Act. In addition, the General Counsel asserts that Respondent Employer engaged in unfair 'labor practice conduct by making coercive statements to employees; creating the impression of surveillance of employees' union activities; engaging in acts of assistance to the S.I.U. and changing employee shifts, rates of pay, job classifications, benefits and working conditions in order to encourage support for the S.I.U. and discourage support for the Independ- ent Union. On September 24, 1976, Respondent Employer dis- charged employee Heriberto Padua, an officer of the In- dependent Union. Thereafter, the great majority of the unit employees engaged in a strike. The General 'Counsel contends that Padua was discharged in violation of Sec- tion 8(a)(3) of the Act and that the ensuing strike, in pro- test of the discharge and other unlawful acts of -Crown Cork, was an unfair labor practice strike. Respondent Employer claims that Padua was discharged for cause and that the* strike was economic in nature. Also at issue is whether Crown Cork violated the Act by threatening to discharge the strikers and by refusing to reinstate them on their unconditional offer to return to work. An election was conducted on October 29, 1976. The Independent Union's objections to conduct affecting the results thereof are based, principally, on the alleged unfair labor practices summarized above. Resolution of the challenged ballot issues revolves almost entirely about a determination of the eligibility to vote of strike replacements. B. Facts and Conclusions 1. Formation of the Independent Union and Respondent Employer's knowledge thereof In early May 1976, at a meeting attended by 90 to 100 individuals (of the 130 to 140 unit employees then work- ing for Respondent Employer), the Independent Union was formed. The following employees were elected as members of the board of directors: Luis Nigaglioni President Heriberto Padua Soto Vice President Rigoberto Febres Secretary Miguel A. Carrasquillo Treasurer Pedro Diaz Sub-Secretary Esteban Arroyo Sub-Treasurer Ruben Feliciano - Member-at-large Armando Vegerano Member-at-large Francisco Fernandez Member-at-large Two days later, Nigaglioni and Fernandez met with Re- spondent Employer's supervisor, Personnel Manager Ana Aponte, and advised her of the formation of the Inde- pendent Union and the identity of the members of the board of directors. Nigaglioni stated that the new union was formed because of a lack of service by the S.I.U. and employee dissatisfaction with the contractual medi- cal plan. Aponte said that she 'would forward the infor- mation to 'the Crown Cork president, Arturo Diaz Ca- tal do As noted, the newly formed union filed a representa- tion petition with the Board on May 17, 1976. Some 2 weeks later, President Diaz initiated a meeting with the members of the board of directors and assured them that he, Diaz, would work with whichever union won the election. In June, Diaz again met with the directors to express his anger about certain machinery breakage which, Diaz believed, had been caused by intentional acts. 2. Coercive statements; acts of assistance; discriminatory conduct Employee Francisco Fernandez,, a member of the board, of directors of the Independent Union, testified that,. in late May or early June, President Diaz ap- proached him outside the plant and told him that there were some 15 or 20 workers who were "harming the plant." Diaz stated that those individuals, who he named, desired to remove the S.I.U. as bargaining representative despite the fact that that union was "working all right," and, therefore, he, Diaz, wanted to get those employees out of the plant. Diaz further stated that, in particular, he wanted to remove Independent Union President Nigag- honi from the plant Fernandez also testified that, in late August, at the request of Supervisor Bernardo Matos, Fernandez met Diaz and Matos at a local restaurant At that .time, Fernandez asked Diaz why he, Fernandez, had been reassigned to the night shift Diaz replied that Fer- nandez was one of the most important leaders at the plant and that the other workers would listen to him. Therefore, Diaz wanted Fernandez to encourage the night-shift employees to retain the S I.U. When Fernan- dez said that, as a member of the Independent Union, he could not campaign for the S.I.U., Diaz stated that the newly formed union was "a bunCh of Communists" and that Diaz' primary goal was "to get Nigaglioni out of the plant" because that employee had the entire plant in tur- moil. • Respondent Employer's witnesses, Diaz and Matos, contradicted each other with respect to the foregoing in- cidents. Thus, Diaz denied that he had had any meetings outside the plant with Fernandez since 1974. Matos, an entirely confused and unreliable witness, confirmed the fact of the August meeting but claimed that no conversa- tion occurred since, according to Matos, Fernandez left the meeting immediately after he arrived. Fernandez im- pressed me as a credible witness and I find that the con- versations with Diaz occurred substantially as he testi- CROWN CORK DE PUERTO RICO 249 fled. I conclude that Respondent Employer, through President Diaz, violated Section 8(a)(1) of the Act by creating the impression of. surveillance of employee- union activities and by threatening to discharge employ- ees because of their support for the Independent Union. Crown Cork violated Section 8(a)(2) and (1) of the Act by soliciting an employee to encourage other_ employees to support the S.I.U. rather than the Independent Union. Fernandez further testified that, during the month of August, Plant Superintendent Francisco Gonzales sum- moned Fernandez from his home to the plant in order to receive a telephone call in Gonzales' office. The caller was Respondent Union's executive secretary, Suarez Lazu, who asked Fernandez' to meet with the Union's president, Keith Terpe, at the S.I.U. officer. After com- pleting the telephone conversation, Fernandez was in formed by Gonzales that "it was all right, that he knew and Mr. Arturo Diaz CataldO knew about this meeting and that I should go, that they would pay my day even if I was absent." Gonzales further stated that he and Diaz wanted Fernandez to help them "so that they do not get the S I.U. out" and Gonzales reminded the em- ployee that he, Fernandez, had been the spokesman for the S.I.U. in 1973, when that union Was challenged by the Teamsters. Finally, Gonzales told Fernandez "that as long as I would help them, I was all right at the plant." Gonzales, in his testimony, denied that the above-related incident occurred. Gonzales was not, in my judgment, a reliable witness. His testimony was, in certain instances, self-contradictory and inconsistent with his prehearing affidavit. Based on those factors, as well as demeanor impressions, I have as- signed little weight to his testimony I find, based on Fernandez' testimony, that Respondent Employer, by its plant superintendent, Gonzales, unlawfully assisted Re- spondent Union by encouraging Fernandez to visit the S.I.U. offices during working hours and without loss of pay. Guadalupe Rivera was hired by Respondent Employer in 1967 as a first-shift fingerlift operator In February 1974, he was promoted to the position of first-shift lead- man and, as a result, was granted a 25-cent-per-hour wage increase In March 1975, Rivera was reassigned to his former fingerlift operator position but, nonetheless, he continued to be paid at the leadman rate although he no longer performed those duties. On July 19, 1976, Rivera was suddenly transferred to the third shift (the night shift) and he ceased receiving leadpay (the 25 per cent per hour). About the same time, Respondent, con- trary to its past practice of permitting Rivera to work during his scheduled vacation periods, and thereby earn double pay for those weeks, informed Rivera that he would be required 'to take a vacation. Rivera testified that when he saw Diaz about the vacation matter, in August, Diaz stated that "the law now required " Diaz then handed Rivera a $100 check, as a loan, and stated that he knew that Rivera was "in sympathy" with the Independent Union. According to Rivera, Diaz further stated that the employees "should be careful, we should think it over carefully, not to let ourselves be led by bad leaders who could lead us down wrong paths . . and that we were being advised by a Communist law firm; that he knew Mr. Escrebano and that that's why he was telling me this." Diaz testified that he could not recall making the statements attributed to him by Rivera. Based on Rivera's credited testimony, I find and con- clude, as alleged in the complaint, that, in August 1976, Respondent Employer, through President Diaz, Violated Section 8(a)(1) of the Act by creating the impression of. surveillance of the union activities of its employees. In addition, I reject Respondent's argument that its 1976 re- fusal to allow Rivera to work during his' scheduled vaca- tion period was based on the requirements of local law. Rivera was permitted to work during such periods in 1974 and in 1975 when the -same law was in effect and, under its provision, allowing an employee to obtain 'an exemption from the law's requirements through the Puerto Rico Department of Labor. When Rivera saw Diaz about the matter, Diaz clearly related his position concerning the supposed- requirements of the law to , his claimed knowledge of Rivera's union sympathies. In light of that factor, and the absence of satisfactory expla- nation for Respondent's sudden change of its practice of permitting Rivera to wdrk during scheduled vacation pe- riods, I find and conclude that Respondent Employer, in violation of Section 8(a)(3) of the Act; refused to allow Rivera to do so in 1976, and thereby earn double pay for that period, because of his Independent Union sympa- thies. The General Counsel also- contends that Respondent Employer violated Section 8(a)(3) of the Act when it transferred Rivera to the third shift and ceased" paying him 25 "cents per hour leadpay. Likewise, it is asserted that when, on June 21, 1976, Respondent transferred em- ployee Esteban Arroyo, a member *of the board of direc- tors of the Independent Union, from the first shift (where he had worked since the date of his hire, March 16, 1972) to the third shift, it did so for discriminatory reasons. It is also alleged that, on July 19, 1976, Re- spondent unlawfully reclassified and reduced the pay of Rigoberto Febres, the secretary of the Independent Union, and Miguel Carrasquillo, the 'treasurer. For the 5-1/2-year period preceding July 1976, Febres worked for Respondent as a shipping and receiving clerk. On July 15, he received a letter from Personnel Manager Aponte, stating: As you are aware, the position of "Shipping & Receiving Clerk" is not negotiated by the collective bargaining agreement, this being a position of a con- fidential nature and which belongs to the office per- sonnel. Our management is not interested in unionizing this position in a new contract and you being the person who for years have perfortried this position, you being a union member, we give you preference in case you want to become part of Our office per- sonnel. . If you agree, we shall be pleased to give you the opportunity, otherwise, we shall, be forced to give 1 Escrebano was one of the - lawyers representing the Independent Union 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD you a new classification within the unionized posi- tions which you are prepared to perform. We hope that you may see what is best for you and give us your answer, in writing, tomorrow, July 16, 1976, in the morning hours. If we don't receive a reply from you, we shall believe _that you are not interested and we shall im- inediately proceed to reclassify you. After reading the letter, Febres told Aponte, "I knew this was going to happen" Aponte replied, "This is the way they work over here." Febres requested additional time to consider the matter and that request was denied. When he then refused a -changed status, he was, on July 19, assigned to the position of fingerlift driver and his pay was reduced by 25 cents per hour. Despite the as- signed reason for Respondent's action with respect to Febres, he was, shortly- after his reclassification, replaced as shipping and receiving clerk by a bargaining unit em- ployee who was not-,required to terminate his union membership: I ;find and conclude that Febres' reclassifi- cation, and the pay reduction which he suffered, were in patent violation of Section 8(a)(3) of the Act. Also on July 19; Miguel Carrasquillo was "terminated" as a_ leadman, and redueed in pay by 25 cents per hour. According to the notice furnished to Carrasquillo by Re- spondent Employer, the reason for the action was a "change in company policy." When Carrasquillo ques- tioned , his supervisor,_ Les Inwood, about the matter, he was told that "it was., because the company no longer trusted , me." Inwood refused Carrasquillo's request for greater specificity.,At the hearing, Gonzales testified that he decided to reclassify Carrasquillo, and reduce his pay, because. of customer complaints about the cans produced on the third shift. However, Carrasquillo worked as a leadman on the first shift. In light of Respondent's knowledge of Carrasquillo's position as an officer of the Independent Union; its demonstrated animus, the shifting and pretextual reasons which it has advanced to explain the demotion of that employee and the timing of the action, I find ancl.eonclude that Carrasquillo's reclassifi- cation and pay reduction were accomplished in violation of the Act Luis Nigaglioni Was hired by Crown Cork in May 1973, as a general worker. Beginning November 1975, he was paid at the rate of $4 30 per hour On May 17, 1976, following his election as president of the Independent Union, , Nigaglioni was - reclassified from "general -worker" to "production- worker," an action which is de- scribed in Respondent Employer's personnel files as a "promotion." However, Nigaglioni testified that, despite the classification Change, his duties remained the same. When Nigaglioni received his paycheck on August 15, he' discovered that his hourly rate had been reduced to $4.05. Nigaglioni then approached Gonzales about the matter and was told that his pay was reduced by 'order of Diaz. Gonzales further told Nigagliont "Luis, so that no more problems arise,' I don't want any more meetings at the plant because Mr. Arturo doesn't want them." Ni- gaglioni then asked if his pay had been reduced because of the Independent .Union and Gonzales replied that he did not want any more problems at the plant, and he would not allow any more meetings of the Independent Union there. Gonzales, in his testimony, attributed the August pay reduction of Nigaghom 'to a change of duties which al- legedly occurred on May 17, when Nigaglioni was,' as noted, reclassified. Since Nigaglioni credibly testified that the May 17 "promotion" did not result in any change of duties, I find that the assigned reason for the pay reduction does not explain that action. Rather, in all the circumstances, including Diaz' statement to Fernan- dez that he, Diaz, wanted to "get Nigaglioni out of the plant" because of his activities on behalf of the Inde- pendent Union, I find and conclude that Respondent Employer reduced Nigagliones rate of pay in violation of Section 8(a)(3) of the Act. I further conclude that Gonzales, in orally promulgating a rule prohibiting in- plant union meetings which, as stated, applied only to the Independent Union, acted in violation of Section 8(a)(2) In late May or early June, Francisco Fernandez, a member of the Independent Union's board of directors, was transferred from the first shift to the second shift. According to Gonzales' uncontradicted testimony, the transfer occurred at the request of the employee I thus conclude that the allegation of a discriminatory transfer of Fernandez has not been sustained In August, Fernan- dez, then in charge of the storeroom, was assigned an ad- ditional duty, to mop the storeroom floor- Previously, that task, among others, was performed by unit employ- ees, on an optional basis, on Saturdays, at a time-and-a- half rate. The record evidence suggests that Fernandez' work activities were not materially changed by.the addi- tional assignment and, on that basis, I find no violation of the Act in that regard. In early August, Harold Abrams, director of industrial relations of Crown Cork and Seal Co., Respondent Em- ployer's parent corporation located in Philadelphia, Pennsylvania, arrived in Puerto Rico in order to verify rumors that the unit employees would strike upon the ex- piration of the contract On ,August 4, Abrams and Diaz met with the members of the board of directors of the Independent Union and Abrams began the meeting by asking the employees if there would be a strike. Febres stated that there would not be a strike if "the discrimina-• tion" against the supporters of the Independent Union, including shift changes, pay reductions, and job reclassi- fications, stopped. Diaz assured the directors that, if given 2 weeks time, he would "fix everything up" and "put everything back to normal." Upon receiving that representation, the directors agreed not to strike On August 16, Esteban Arroyo was returned to the first shift. At the hearing, Diaz testified that that action was taken, - "absolutely, as a result of the agreements - reached at the August 4 meeting. On the other hand, Gonzales testified that he alone was responsible for the original transfers of Arroyo and Guadalupe Rivera, from the first shift to the third shift, and that the purpose was to place experienced employees on the third shift while new hires were trained on the first shift. According - to Gonzales, when the training period was completed, he, Gonzales, without consulting Diaz, returned Arroyo and CROWN CORK DE PUERTO RICO 251 Rivera to the first shift. I think it more likely, consistent with Diaz' testimony, that those employees were re- turned to the first shift in compliance with Diaz' agree- ment with the Independent Union to end "the discrimi- nation" and "put everything back to normal." I find and conclude that the original transfers of Arroyo and Rivera: from the first shift to the third shift, were in vio- lation of Section 8(a)(3) of the Act. I also conclude that Rivera's loss of leadpay at the time of his unlawful trans- fer to the third shift, and fully 16 months after he ceased performing the duties of a leadman, was accomplished for discriminatory reasons.2 3 The contract extension In the weeks preceding the August 12 execution of the contract extension, Diaz met with Respondent Union's executive secretary, Suarez Lazu, on some three occa- sions. According to Lazu's testimony,. he insisted, at those meetings, on increased Crown Cork contributions to the medical plan as a condition to signing the "Stipu- lation" Thus, Lazu testified that larger contributions were needed in order to meet the increased costs of maintaining the plan. Lazu later testified that such in- creased contributions were sought from all participating employers in order to improve the plan and eliminate problems. In any event, after initially resisting the sub- stantially increased payments sought by the S.I U., Re- spondent Employer relented. There is considerable record evidence that, indeed, at least some increase in the size of employer payments to the plan was necessary in order to maintain then existing levels of medical service. While I accept Respondents' arguments in that regard, I find them nondeterminative. of the issue before me. On August 13, Respondent ' Employer posted on its bulletin board a letter, signed by President Diaz, which stated, inter - Yesterday morning, I was asked by my superiors to sign a STIPULATION extending the duration of the AGREEMENT between the COMPANY and the UNION until such date as the National Labor Relations Board resolved in a binding manner the cases pending consideration. The main reason for this decision was maintain- ing in effect for the membership the protection that the agreement gives them and particularly the Med- ical Plan, for which the Company agreed to pay a big increase, so that the service could be amplified [Em- phasis added.] Also on August 13, Diaz met with Febres and Fernandez and showed them a copy of the "Stipulation." Febres stated that the members of the Independent Union would not accept it and he demanded that the "Stipulation" not be used as a basis for continuing the deduction of dues in 2 Gonzales testified that he reduced Rivera's pay pursuant to a memo- randum he received from Comptroller Jose Laureano However, that memorandum, dated 2 days after the pay reduction, does not even ad- ress the subject of leadpay favor of Respondent Union. Diaz shrugged and walked out. 3 On 'August 27, Respondent .Union circulated a leaflet among the unit employees, signed by Suarez Lazu, which 'stated, inter . Hereby we are informing all employees of Crown Cork as well as their relatives, that the Medical Plan of the S.I.U., continues to cover everyone like before. Moreover, we are making great efforts to improve the plan at all places where the employees of Crown Cork go to receive services. The General Counsel contends that Respondents, by negotiating and executing the "Stipulation" and, thereaf- ter, enforcing and administering the collective-bargaining agreement, including its union-security and check-off provisions, at a time when a valid question concerning representation had been raised, violated the neutrality re- quirements mandated by ,the Board's holding in Shea Chemical Corp., 121 NLRB 1027 (1958) Respondents assert that their actions were privileged under an excep- tion to Shea Chemical, enunciated by the Board in G&H Towing Co., 168 NLRB 589 (1967) There, the Board held: Unlike the situation in Shea Chemical Corporation, relied on by the General Counsel, where the em- ployer and a union with a claimed card majority ne- gotiated a "complete two-year collective bargaining agreement," the parties here only extended the ter- mination date of their existing contract from time to time so as to avoid a lapse in contractual relations while awaiting resolution of the representation ques- tion No changes were made in wages or any other contractual terms during this period There is no evidence that the parties engaged in any bargaining, or even introduced preliminary proposals. Thus, consistent with what we said in Shea, G&H pursued a neutral course by neither "bargaining collectively with the incumbent or any other union" nor "refus- ing to permit the incumbent union to continue ad- ministering its contract. ." We find no violation in the extensions of G&H's contract with the Sea- farers Contrary to Respondents' contentions, I conclude that the instant matter does not present a G&H Towing type case Here, preceding and following the execution of the contract extension, Respondent Employer engaged in nu- merous acts of support and assistance to Respondent Union, in violation of Section 8(a)(2), and acts of coer- cion and discrimination, in violation of Section 8(a)(1) and (3) of the statute. The extension of the contract with the favored union occurred in that context, and, thus, cannot be viewed as a neutral act designed to avoid a lapse in contractual relations. Moreover, Respondent Employer and Respondent Union, at a time when both knew that employee dissatisfaction with the medical plan 3 One week later, Febres complained to Aponte about the continuation of dues deductions She replied, "I got orders from upstairs" 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was one of the primary reasons for the formation of the Independent Union, agreed to a doubling of Employer contributions to that plan and then informed the employ- ees that the increased payments would permit improve- ment of the plan and amplified service. I thus conclude, regardless of the then existing financial needs of the wel- fare plan, that the contract extension, including the agreed-upon change in contractual terms, was designed to assist the S.I.U. By extending and enforcing the con- tract, as modified, beyond August 12, 1976, Respondents violated Section 8(a)(3), (2), and (1) and Section 8(b)(2) and (1)(A) of the Act 4. The Padua discharge Henberto Padua was employed by Crown Cork as a quality control inspector' from November 11, 1970, until he was discharged on September 24, 1976. In May 1976 he was elected vice president of the Independent Union. In late July or early August Padua posted a notice of an out-of-plant Independent Union meeting on the plant bul, letin board. That notice was removed by Supervisor J. A. La Santa who told Padua that, by order of Diaz, em- ployees were not permitted to post notices at the plant. Thereafter, La Santa filed a written report of the inci- dent Respondent Employer asserts that Padua was dis- charged on September 24, due to "insubordination," a "lack of respect toward a superior," and a "threat of physical harm to a superior" arising out of an incident between Padua and Supervisor Jose David Carrasquillo which occurred on September 23. For the reasons -stated below, I find and conclude that Respondent Employer discharged Padua because of his Independent Union ac- tivities, in violation of Section 8(a)(3) of the Act About 5.30 a.m. on September 23, as Padua was walk- ing toward production line 1, a "jam" developed at line 2. Supervisor Carrasquillo yelled at Padua to go to line 2. According to Padna's credited, corroborated testimo- ny he then told Carrasquillo that "there is no reason for him to shout at me like that. If he knew anything about cans he would have realized that that was mechanics' work and not of the inspector. And I told him, if you want me to help you, I can help you so that you will know about cans. I've been doing this work for 6 years and I can help you. But since you show a negative atti- tude, there is no way to help you do a better job." Car- rasquillo accused Padua of insulting him and Padua re- sponded, "Well, I'm telling you the truth, that you do not know anything about cans. I know about cans. If you feel insulted, that's the truth, that you don't know about cans." Carrasquillo told Padua that if he, Padua, persist- ed in telling Carrasquillo that, Carrasquillo would report him. Padua then said to Carrasquillo that "if the truth hurt him, to go ahead and make a report." 4 Later, Car- rasquillo instructed Padua to report to Gonzales' office at 2 p.m. on the same day. When Padua did so, he was told by Gonzales that "he did not have my case, that Arturo Diaz Cataldo had my case . . . and he had noth- 4 At the time of the incident, Carrasquillo was a newly hired supervi- sor Thereafter, according to Diaz, he was discharged for "failing to make the grade" ing to do with " Padua was then instructed to report at 11 a.m., the next day, to see Diaz. Padua arrived at the plant at 11 a.m on September 24 but was told by the security guard to wait outside At 1 p m., Supervisor Carrasquillo appeared and attempted to hand an envelope to Padua. Padua said that he would not accept it before seeing Gonzales Carrasquillo and Padua then went to Gonzales' office, where "almost all the supervisors of the plant" had been gathered, and Gonzales _read, and then handed to Padua, a discharge letter, stating. We have studied the report of Supervisor' Carras- quill° to Mr. Francisco Gonzales, Superintendent of this Plant, in relation to your behavior during your work shift that ended the 23rd of September 1976. We have found that at 5:30 in the morning of that day, you engaged in three violations to the Rules of Conduct of this company, namely: 1) Insubordination . 2) Lack of respect toward a superior 3) Threat of physical harm to a superior For the above reasons, I must notify you that we have decided to terminate you immediately from your employment at this company V Enclosed is your discharge check covering all your earnings with this company 5 When Padua asked Gonzales for an opportunity to ex- plain what had happened, Gonzales refused and told Padua that Carrasquillo was a respectable man and Re- spondent Employer believed him, and believed the ver- sion of events contained in his report. Padua again asked for an opportunity to explain and was told by Gonzales that "There is nothing to explain. Just hand in your iden- tification card and go out of the plant as soon as possi- ble" Although initially denied by Gonzales, the record evi- dence clearly reflects that Respondent Employer con- ducted no investigation of the Padua-Carrasquillo inci- dent beyond a reading of the report submitted by Carras- quillo Yet, there were many witnesses to that alterca- tion. Diaz testified that he decided to discharge Padua pursuant to Crown Cork's July 22, 1975 rule providing for immediate dismissal of an employee who is disre- spectful to a supervisor. However, in the past, first of- fense infractions of that rule have resulted in warning let- ters, not discharge, and then only after full investigation. In light of Respondent Employer's, knowledge of Padua's leading role in the formation and activities of the Independent Union; its demonstrated animus; its contem.- poraneous discrimination against other supporters of the Independent Union; the absence, contrary to past prac-1 tice, of an investigation of the incident relied on to sup- port the discharge and the refusal to permit Padua to ex- plain his version of events, .I conclude that Respondent 5 The report filed by Carrasquillo with Gonzales stated that Padua had threatened to tear Carrasquillo's head off if he, Carrasquillo, filed a report CROWN CORK DE PUERTO RICO 253 seized upon the Carrasquillo-Padua incident as a pretext to justify a discharge motivated solely by union consider- ations and, thus, violated Section 8(a)(3) of the Act. 5. The strike On August 1, 1976, at a membership meeting of the In- dependent Union, the board of directors was authorized to call a strike if Respondent Employer continued to engage in discriminatory conduct Among the specific cases of discrimination discussed at that meeting were those of Arroyo, Febres, Rivera, anc Carrasquillo. On September 24, immediately after the Padua dis- charge, the strike began. Fernandez testified: When they came out, part of the protest was the discharging of Padua and the discrimination that was going on in the plant and the extension of the contract that they had done The following legends appeared on the picket signs car- ried by the strikers: We Do Not Want the SIU For a Repressive Employer, a Combative Employee Employer Breaks the Law—Violates the Law United Workers May Never Be Vanquished Angel, Padua, Nigaglioni—We Are With You One day after the strike began, on September 25, Crown Cork sent telegrams to all striking employees stating that unless they immediately returned to work, they were subject to summary discharge for violation of the no-strike clause of Respondent Employer's contract with the S.I.U., as extended and modified by the "Stipu- lation." On October 22, Nigaglioni delivered to Crown Cork the following application for reinstatement on behalf of all striking employees: Union Independiente de Trabajadores de Crown Cork, on behalf of all the employees presently on strike due to the unfair labor practices engaged in by the Company you preside, offers the. immediate return to work of all its members presently on strike. UITCC guarantees the security of all the facili- ties, equipment and personnel of the Company from any intentional acts engaged in by its members. If our offer is not accepted, the strike will contin- ue to all effects. Some 27 strikers received telegrams from the employer, in February 1977, and thereafter, advising them to report to work. The remaining 105 strikers have not been of- fered reinstatement. I find and conclude that the strike was, from its incep- tion, an unfair labor practice strike By threatening sum- marily to discharge unfair labor practice strikers, Re- spondent Employer violated Section 8(a)(1) of the Act. By refusing to reinstate unfair labor practice strikers • upon their unconditional offer to return to work, Crown Cork violated Section 8(a)(3) of the Act.° 6. The election It is undisputed that, on October 29, the day of the election, Respondent Employer placed a camera -in the area of its second floor administrative offices, pointed at and visible to a group of peacefully striking employees who were waiting in line to vote The General Counsel contends that such a photographing of peacefully strik- ing employees, absent a showing of justification, is un- lawful (citing Gopher Aviation, 160 NLRB 1698 (1966)). In Gopher, the Board held that the photographing of pickets is unlawful when undertaken for purposes of sur- veillance, but not when it is designed to serve a legiti- mate end. In the instant case, during the period between the formation of the Independent Union and the onset of the strike, Crown Cork experienced an unusual amount of breakage of parts and machinery vital to its produc- tion operations. Its industrial engineer, Vincent Dum- browsky, credibly testified that those occurrences were not due to normal wear and tear but, apparently, were caused by intentional acts. Shortly after the strike began, Crown Cork's director of security, Edward Freskin, found an unfinished silencer for a 38 caliber weapon "jammed" into a lathe In these circumstances, I find that Respondent Employer has demonstrated justification for use of its camera as a security measure. Accordingly, I find no violation of the Act in that regard 7. Postelection assistance On February 17, 1977, Respondent Employer reinstat- ed 25 of the 132 striking employees. 7 On that day, the returning strikers were sent to the cafeteria where they were -addressed by Gonzales, Plant Manager Pino and Respondent Union's agent, Delegate Enrique Rivera Employees Eduardo Barreto and Angel Luis Andino tes- tified , that, at the meeting, Pino told the group that he was interested in production and not unions Further, that while he, Pino, knew that the gathered employees belonged to the Independent Union, "the Union in. the plant" was the S I.0 _Pin° then introduced Rivera as the S I.0 delegate and the latter spoke about the S.I.U. medical ,plan. One week later, Andino asked Pmo why union dues were being deducted from his,paycheck. Pino replied that the incumbent union was the S.I.U. and "in order to be able to work at Crown Cork, one had to belong to that union or be a part of management." Neither Pino nor Rivera were called to, testify about the events of February 17. Gonzales, in his testimony, could not recall being present at the meeting Based on the testimony of Barreto and Andino, I find and .con- elude that, on February 17, Respondent Employer violat- ed Section 8(a)(2) of the Act by informing the returning strikers that Respondent Union was their representative. 6 Respondent Employer contends that the October 22 application for reinstatement was not unconditional I find nothing in the wording of the application which would support that position Nor were there contem- poraneous acts or statements by the strikers at odds with the uncondition- al nature of their offer to return to work 7 On April 22, two more strikers were recalled 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Crown Cork again violated Section 8(a)(2) when, 1 week later, Pino repeated that assertion to Andino. On May 10, 1977, Respondent Employer made a loud- speaker announcement directing all of its first-shift em- ployees to attend a meeting in the cafeteria at 2 p.m. The employees were further instructed not to punch out their timecards until the meeting ended. At the ensuing meet- ing, attended by all the first-shift employees, the group was addressed by Supervisor Victor Morales, Delegate Enrique Rivera, and Guillermo Ryan, an employee of the Human Resources Development Institute. 8 Barreto and Andino testified that Morales and Ryan admonished the employees about absences. Then, Rivera. distributed certain cards, bearing the S.I.U. name, which Ryan de- scribed as entitling the bearer to obtain medical services and, at certain stores, make discount purchases. Morales, Ryan, and Rivera were not called as wit- nesses. Based on the testimony of Barreto and Andino, I find and conclude that, on May 10, 1977, Respondent Employer violated Section 8(a)(2) ,of the Act by instruct- ing its employees to attend a meeting of Respondent Union, held at the plant during working hours, at which, in the presence of Crown Cork representatives, the S.I.U. ,announced the availability of additional benefits. 8. The objections The Independent Union's objections 5 and 6 to con- duct affecting the results of the election held on October 29, 1976, rely upon the unfair labor practice conduct found hereinabove to have occurred between the date the petition was filed and the date of the election. Since, during the critical period preceding the election, the Em- ployer and the Intervenor engaged in unfair labor prac- tice conduct in violation of Section 8(a)(1), (2), and (3) and Section 8(b)(1)(A) and (2) of the Act, .1 conclude that there is merit to the objections. If a majority of valid ballots had not been cast for the Petitioner, as de- termined, infra, the election would properly be set aside 9. The challenges The tall); of ballots served on the parties after the elec- tion showed that 346 ballots were cast, of which 118 were for the Independent Union, 15 for the S.I U. and there were 213 challenged ballots, a sufficient number to affect the results of the election. There were 190 chal- lenges by the Petitioner on the ground, inter aim, that the voter was an unfair labor practice strike replacement and, therefore, ineligible to • vote. Since it is undisputed that those voters were hired after the commencement of the September 24 strike as replacements for the strikers, and since I have found that the strike was an unfair labor practice strike, I conclude that the challenges to their ballots should be sustained The remaining 23 challenged ballots are not determinative of the results of the elec- tion 9 Since a majority of the valid ballots have been cast 8 That organization, which "works with" the AFL-CIO, referred to Respondent Employer. in September and October 1976 strike replace- ments Before and during the stnke, Ryan was frequently seen at the plant attending to S I U business 9 Respondents contend that at an October 14 meeting of the parties at the Board's offices in Hato Rey, the Independent Union. by oral agree- for the Independent Union, it should be certified as the collective-bargaining representative in the unit described in the Decision and Direction of Election IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activities of Respondents set forth in section III above, occurring in connection with Respondent Em- ployer's operations described in section 1 above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening commerce and the free flow of commerce V. THE REMEDY Having found that Respondents have engaged in unfair labor practices in violation of Section 8(a)(3), (2), and (1) and Section 8(b)(2) and (1)(A) of the Act, I shall recom- mend that they be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. Crown Cork de Puerto Rico, Inc. is an employer engaged in commerce, and in operations affecting com- merce, within the meaning of Section 2(2), (6), and (7) of the Act 2. Union Independiente de Trabajadores de la Crown Cork, and S I.0 de Puerto Rico, Caribe Y Latinoamer- ica a/a S.I.U. of North America, AFL-CIO are labor or- ganizations -within the meaning of Section 2(5) of the Act 3. By negotiating, executing, maintaining, and enforc- ing an extension and modification of their collective-bar- gaining contract beyond August 12, 1976, including union-security provisions, notwithstanding the existence of a real question concerning representation, Respond- ents violated Section 8(a)(3), (2), and (1) and Section 8(b)(2) and (1)(A) of the Act. 4. By discharging Heriberto Padua; reducing the wage rates of Guadalupe Rivera, Rigoberto Febres, Miguel Carrasquillo, and Luis Nigaglioni; changing the work shifts of Guadalupe Rivera and Esteban Arroyo; reclassi- fying Rigoberto Febres and Miguel Carrasquillo; refusing to permit Guadalupe Rivera to work during his sched- uled vacation in August 1976, and refusing to reinstate unfair labor practice strikers upon their unconditional offer to return to work, Respondent Employer violated Section 8(a)(3) of the Act 5. By soliciting an employee to encourage other em- ployees to support Respondent Union rather than the In- dependent Union; encouraging an employee to visit Re- spondent Union's offices during working hours and with- out loss of pay; orally promulgating a rule prohibiting in- ment with the other parties and the Board agent, waived its right to chal- lenge the ballots of strike replacements hired on or before October 8 Based on the testimony of Paul Schactor. an attorney for the Independ- ent Union, I find that, at that meeting, the Independent Union maintained its position that the strike replacements were not eligible to vote It agreed only that if those replacements were found eligible to vote at all, October 8 was the eligibility cutoff date CROWN CORK DE PUERTO RICO 255 plant union meetings which, as stated, applied only to the Independent Union; informing its employees that Re- spondent Union was their representative and instructing its employees to attend a meeting of Respondent Union, held at the plant during working hours, Respondent Em- ployer violated Section 8(a)(2) of the Act. 6. By creating the impression of surveillance of the union activities of its employees;- threatening to discharge employees because of their support for the Independent Union and threatening summarily to discharge unfair labor practice strikers, Respondent Employer violated Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication] SUPPLEMENTAL DECISION IRwiN H. SOCOLOFF, Administrative Law Judge On February 7, 1979, I issued my decision in this proceed- ing, finding that Respondent Employer and Respondent Union had engaged in activities violative of the National Labor Relations Act. Included among the statutory Vio- lations found to have been committed by Respondent Employer was its discharge on September 24, 1976, of Henberto Padua, the vice president of the Independent Union. Thereafter, on July 19, 1979, the Board issued its Decision and Order Remanding "for credibility findings with respect to the Padua-Carrasquillo incident on Sep- tember 23," which preceded the discharge. As noted at page 13, lines 36-37 of my initial decision, my findings concerning the September 23, 1976 incident, between Padua and his immediate supervisor, Jose David Carrasquillo, were based on the "credited, corroborated testimony of Padua." Thus, Padua impressed me as an entirely forthright and honest witness and, in reliance on his testimony, as .corroborated by Luis Pomar and Miguel Currasquillo, observers of the event in question, I find that the September 23 incident transpired as report- ed in my initial decision. More particularly. I find that Padua did not use obscene language or threaten to tear the supervisor's head off. Jose David Carrasquillo's testi- mony to the contrary is not credited as I found Carras- quill° a confused witness who exhibited an uncertain memory of the events of September 23 I thus conclude that the later report filed -by Cariasquillo with the plant superintendent, Francisco Gonzales, concerning the fore- going incident, contained, in part,. false accusations against Padua As Carrasquillo was, at the time, a statu- tory supervisor, knowledge of the falsity of those acCusa- lions is attributable to Respondent-In light of that -factor, and for the reasons stated at page 15 of my initial deci- sion, I again conclude that the Padua discharge was in violation of Section 8(a)(3) of the Act.' [Recommended Order omitted from publication] ' At fn 4 of its decision, the Board observed that Plant Superintendent Francisco Gonzales testified that, after receiving the report from Carras- quill°, he attempted to investigate the matter by questioning employee Roberto or Gilberto Rodriquez about the exchange between Carrasquillo and Padua Rodriquez did not testify at the hearing For the reasons stated at p 6,11 25-28 of my initial decision, I did not find Gonzales a credible witness Moreover,' with respect to this particular testimony, it must be 'noted that, in his pretrial affidavit; Gonzales claimed to have questioned an employee named Isandre, and, no one else, about the Padua-Carrasquillo incident Likewise, Gonzales' testimony at the hearing that, after receiving the report from Carrasquillo, he asked that supervi- sor for the names of witnesses to the incident, is inconsidtent with Gon- zales' admission in his affidavit that he did not do so Accordingly, I dis- credit Gonzales contrary testimony and I again conclude that Respond- ent Employer conducted no investigation-of the Padua-Carrasquillo inci- dent beyond a reading of the report submitted by Carrasquillo