Palmas Del Mar Co.

PALMAS DEL MAR CO. Palmas del Mar Company and Union de la Industria Gastronomica de Puerto Rico, Local 610, Hotel and Restaurant Employees International Union, AFL-CIO and Union Independiente de Emplea- dos de Palmas del Mar and Union Los Titanes del Yunque, Intervenors. Cases 24-CA-5017 and 24-RC-6910 31 October 1985 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS DENNIS, JOHANSEN, AND BABSON On 18 June 1985 Administrative Law Judge David L. Evans issued the attached decision. The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order as modified.2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Palmas del Mar Company, Hato Rey, Puerto Rico, its officers, agents, successors, and as- signs, shall take the action set forth in the Order as modified. Insert the following as paragraph 1(f). "(f) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act." [Direction of Second Election omitted from pub- lication.] 1 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings The judge made two inadvertent errors which we find do not affect the judge's ultimate conclusions At sec III,A,2 of his decision, he re- ferred to the Respondent's 20 "July" rather than "August" letter At fn 2 of his cecision, the fudge omitted that the parties also stipulated that the other 12 challenged ballots had been cast by ineligible voters 11 The judge omitted a narrow cease-and-desist order against the Re- spondent, although he included such a provision in his notice to employ- ees We shall modify the fudge's recommended Order accordingly Antonio F. Santos, Esq and Efrain Rivera Vega, Esq., for the General Counsel. 71 Miguel Palou Sabater, Esq, and Frank Zorrilla Maldon- ado, Esq., of Hato Rey, Puerto Rico, for the Respond- ent. Norman Pietri, Esq., of Santurce, Puerto Rico, for Union de ]a Industria Gastronomica de Puerto Rico, Local 610, Hotel and Restaurant Employees International Union, AFL-CIO Jose Orlando Grau, Esq., of Humacao, Puerto Rico, for Union Independiente de Empleados de Palmas del Mar. DECISION STATEMENT OF THE CASE DAVID L. EVANS, Administrative Law Judge. This case was tried before me on 17-20 December 198411 in Hato Rey, Puerto Rico. Pursuant to a petition filed in Case 24-RC-6910 on 6 July by Union de la Industria Gastronomica de Puerto Rico, Local 610, Hotel and Res- taurant Employees International Union, AFL-CIO (Local 610), and further pursuant to a Stipulation for Certification Upon Consent Election approved by the Regional Director for Region 24 of the National Labor Relations Board on 26 July, an election by secret ballot was conducted on 23 August in the following unit of em- ployees employed by Palmas del Mar Company (Re- spondent): All employees employed by Respondent at its Hotels, Club Cala, Regime and other facilities at Humacao, Puerto Rico, in the departments of housekeeping, maintenance, golf, ground mainte- nance, food and beverage, laundry department, store keepers, janitors, life-guards, telephone opera- tors as well as the employees in the front office; but excluding all employees in the reservation and ad- ministrative departments, including office clerical employees, secretaries and employees engaged in sales, promotion and advertising, the comptroller, assistant comptroller, night auditors, accounts pay- able supervisors, accounts receivable supervisors, credit manager, personnel manager, front office manager, head front office cashier, head food and beverage cashier (both day and night), payroll su- pervisors, head of store rooms and receiving, costs account supervisor, food and beverage comptrol- lers, assistant manager and maitre d's, executive chef, and the secretaries to the general manager, ex- ecutive assistant manager, personnel manager, comptroller, food and beverage manager, executive and professional personnel, and guards and supervi- sors as defined in the Act. Participating in the election were two other labor or- ganizations as intervenors: Union Los Titanes del Yunque (Union Titanes) as the incumbent; and Union In- dependiente de Empleados de Palmas Del Mar (Union Independiente) which made a card showing. The tally of ballots issued upon conduct of the election was as fol- lows: 1 Unless indicated otherwise, all dates herein are in 1984. 277 NLRB No. 11 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Approximate number of eligible voters-287 Void ballots-1 Votes cast for Local 610-98 Votes casts for Union Titanes-3 Votes cast for Union Independiente-128 Votes cast against all participating labor organi- zations-3 Valid votes counted-232 Challenged ballots-27 Valid votes counted plus challenged ballots-259 Challenges are sufficient to affect the results of the election.2 Objections to conduct affecting the results of the elec- tion, discussed infra, were filed by Local 610, a com- plaint and notice of hearing issued on 19 October; and on 24 October the Regional Director issued an order which consolidated Cases 24-CA-5017 and 24-RC-6910.3 the complaint alleges violations of Section 8(a)(1) and (2) of the National Labor Relations Act (the Act). Respondent filed an answer admitting jurisdiction and the superviso- ry status of certain individuals, but denying the commis- sion of any unfair labor practices. On the entire record , including my observation of the demeanor of the witnesses, and after careful consider- ation of the briefs filed by Respondent and the General Counsel, I make the following FINDINGS OF FACT I. JURISDICTION Respondent maintains its principal office and place of business in the city of Humacao, Puerto Rico, where it is, and has been at all times material herein, continuously engaged in providing hotel, restaurant, and related serv- ices. During the year preceding issuance of the com- plaint, Respondent, in the course and conduct of the business, derived gross revenues in excess of $500,000. During the same period of time Respondent purchased and caused to be transported to its Humacao facilities food, liquor, and other goods and materials valued in excess of $50,000 which were transported and delivered to the hotel directly from suppliers located at points out- side Puerto Rico. Therefore, Respondent is, and has been at all times material herein, an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. II. LABOR ORGANIZATIONS INVOLVED Local 610, Union Titanes, and Union Independiente are, and have been at all times material, labor organiza- tions within the meaning of Section 2(5) of the Act.4 2 At the hearing before me the parties stipulated that 15 of the 27 em- ployees whose ballots were challenged were, in fact, eligible to vote in the election Therefore, the remaining challenges would not, in any event, be determinative 3 As originally docketed, this case included charges in Case 24-RC- 5039 which were filed by Union Titanes These charges were withdrawn just before the hearing opened, and the Regional Director issued an order severing those charges from the complaint. 4 Subsequent to the close of the hearing and the filing of the briefs, a letter was submitted by the counsel for Union Independiente who ap- III. THE ALLEGED UNFAIR LABOR PRACTICES The following individuals, at all times relevant to these proceedings, were supervisors of Respondent within the meaning of Section 2(11) of the Act: Glen Kassan, chair- man of the board; William Stowell, president; Arnold Benitez, general manager; Benny Tosado, personnel di- rector; Maria Vellon, housekeeper supervisor; Carmen Alciea Navarro, housekeeper supervisor; Raymond Rivera, bell captain; and Sergio Osorio, food and bever- age supervisor. Respondent operates the Palmas del Mar Complex which is comprised of 2500 acres within the municipali- ties Humacao and Yabucoa in the eastern part of Puerto Rico. On this property are two hotels, condominiums, golf courses, night clubs, and various other types of fa- cilities for the use of tourists and residents. Beginning in the summer of 1981 the employees in the unit described above were represented by Union Titanes. A contract between Respondent and Union Titanes was effective from October of that year until 3 October 1984; it contained union-shop and checkoff provisions. In April 1983 a referendum was conducted by the Board; the result was that the union-shop clause of the 1981 con- tract was deauthorized. Thereafter, a large percentage of the employees also opted to withdraw their checkoff au- thorizations. Union Titanes was held in disfavor by the employees at the time of the events of this case, a fact on which all parties agreed Under Titanes contract, delegates or stewards were appointed to represent employees of various depart- ments. In October 1982, Respondent hired Benny Tosado as personnel director. In February 1983, Tosado estab- lished a "Steering Committee." The Steering Committee was to be composed of the Titanes delegates from each department and certain supervisors.5 The Steering Com- mittee was originally designed to meet once a month but, in fact, it met only about six times from its creation until July 1984. Tosado testified that the purpose of the Steer- ing Committee was not to discuss grievances but to dis- cuss operational matters in the Complex, such as supply needs and suggestions for improved operations. Howev- er, several employees testified that at the Steering Com- mittee meetings, personnel problems were, in fact, dis- cussed; Tosado denied this, but I credit the employees. Tosado testified, without contradiction, that agents of Ti- tanes never objected to the operation of the Steering Committee. A. The 8(a)(1) Allegations Paragraph 5(a) of the complaint alleges: (a) In or about April, 1984, the exact date pres- ently unknown, Respondent, by Benny Tosado, Per- peared at the hearing In the letter counsel stated that Union Indepen- diente had disbanded and no longer existed The continued existence of Union Independiente is a proper matter for administrative investigation before conduct of the rerun election recommended herein. However, for purposes of this decision, the continued existence and interest of Union Independiente is presumed 5 Tosado testified that the Steering Committee members were "by co- incidence" the Titanes delegates. PALMAS DEL MAR CO. sonnel Director, at an employee's home, solicited, urged and requested an employee to create and lead an independent labor organization to represent Re- spondent's employees. Since the charge was filed on 29 August, the date of this allegation (and others) is critical. Section 10(b) of the Act provides that: [No] complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made. Therefore, if the conduct alleged to be violative oc- curred' at any time before 29 February no violation can be found on the basis of this allegation . Although criti- cail, counsel for the General Counsel chose to lead his witness to the date of the alleged violation. Counsel asked employee Jose Abreu: "Directing your attention to April of 1984, what, if anything, do you recall [happen- ing] to you around that month?" In response, Abreu tes- tified that Tosado visited his home and asked him to lead in the formation of an "independent" labor organization. On cross-examination Abreu steadfastly claimed memory that the meeting was, indeed, in April, not February. Tosado admitted enough to conclude that Abreu was truthful in his testimony that Tosado encouraged him to form a union when Tosado visited his home. However, Tosado steadfastly denied that the incident took place in April 1984. Tosado (without leading) placed the meeting in late January or early February and was able to sup- port his designation of the date with reasons which were not challenged by the General Counsel. Of even more significance is the fact that Abreu's pretrial affidavit, taken on 2 October, first places the meeting at his home in "February." The affidavit originally read: "Around February 1984, I do not remember the exact date, Mr. Benny Tosado, personnel director of the company, vis- ited my home ... ." The affidavit was changed to strike "February" and insert "`April." Abreu was given ample opportunity to explain why the Board's investigator who drafted the af- fidavit would have first used the "February" date, but he was unable to do so. Additionally, the disclaimer of abili- ty to remember the "exact date" on 2 October was in- consistent with his insistence on cross-examination that the meeting was in April. For these reasons, I credit Tosado in his testimony about the date of the meeting. Therefore, I find that the meeting occurred before 29 February, and I conclude that this allegation of the com- plaint is barred by the limitations provisions of Section 10(b) of the Act as quoted above. Accordingly, I shall recommend dismissal of this allegation. Paragraphs 5(b), (c), and (t) of the complaint allege: (b) In or about May 1984, Respondent, by Benny Tosado, Personnel Director, at a conference room in the "Green House," solicited and encouraged its employees to support Union Independiente and discourage[d] its employees from supporting Local 610 or any other labor organization. 73 (c) In the same conversation mentioned above in paragraph 5(b), Respondent, by Benny Tosado, Per- sonnel Director, offered and promised wage in- creases, benefits and better working conditions to its employees if said employees became members of Union Independiente. (t) In the same meeting mentioned above in subparagraph[s] 5(b) and (c), Respondent, by Benny Tosado, convened, attended, participated in, and su- pervised a meeting of its employees during which Union Independiente was formed. Allegations grew out of a meeting, over which Tosado presided. When the meeting occurred and much of what happended at it is in substantial dispute. Although, again, the date of the incident is critical, counsel for the General Counsel chose to lead each of his three witnesses on these allegations to the date. Joseph Abreu, Carmen Donato, and Pedro Torres were led to testify that they, and other employees, met with Tosado in "May 1984." Without leading, Tosado credi- bly testified that the meeting in question occurred in late January or early February. Isidro Falcon, who became president of Union Independiente, testified, also without leading, that the meeting occurred on 7 February. Addi- tionally Falcon credibly testified that the Union Indepen- diente secretary (who was selected at the meeting in question) took notes which were turned over to the lawyer who represented Union Independiente at the hearing. The General Counsel did not call for such notes after their existence was disclosed by Falcon and pre- sented no other probative evidence which would bear on this issue. (Nor did the General Counsel ask Falcon how he could be so sure that the meeting happened on that specific date when it was obvious that Falcon was refer- ring to the notes taken by the secretary.) Respondent has the burden of proving the affirmative defense incorporated in the limitations period of Section 10(b) of the Act,6 and I find that it has done so in this case. That is, the General Counsel has failed to rebut the categorical evidence presented by Respondent and Union Independiente that the Tosado meeting occurred in late January or early Feburary 1984. I therefore find that the meeting, as subsequently described, occurred outside the limitations period of Section 10(b) of the Act and cannot be made the basis of a finding of a violation. While finding of a violation may not be made on the basis of the meeting, the meeting does provide relevant background for subsequent events. For this reason, and possible purposes upon review, it is necessary to describe what happened, making necessary credibility resolutions. Abreu testified that in the midafternoon as he was working in a dining room, he was approached by Tosado who told him "that they were waiting for me at one of the rooms in the Green House." (The Green House was a building composed of several rooms utilized for differ- ent types of meetings.) Abreu continued that when he got to the room there was a group of 12 to 13 fellow workers waiting for him. The employees were seated in 6 St Mary 's Infant Home, 258 NLRB 1024 (1981). 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD two rows of chairs and in the front of the room there was a blackboard. When he and Tosado arrived, Tosado went to the front of the room with his back to the black- board and facing the employees. Abreu testified that the employees first started talking about whether certain em- ployees were then members of Union Titanes and then they began discussing the medical plan which Union Ti- tanes administered. This medical plan was the object of frequent employee criticism because of the way it was administered and the lack of benefits provided. Accord- ing to Abreu, "Tosado promised us a medical plan which was the one that the supervisors had to which the em- ployees had to contribute with $5 a week." Abreu stated that he challenged the value of the supervisory program and "Mr. Tosado said that that could be negotiated at a-at a negotiations [sic] table." On direct examination Abreu did not testify that Tosado told the employees that such negotiations were contingent on their forming an independent union. However, on cross-examination he did testify that Tosado did make such a statement. In his pretrial affidavit, there is no mention of such a statement by Tosado, and Abreu could not explain the omission. Abreu testified that Tosado then told the group that he was there "upon a request that had been made to him .. . to organize an independent union . . . that the group of employees that was there was the one that had summoned him to go there to carry out the functions for which he was there." Then, according to Abreu, the em- ployees suggested names for a new independent union. Tosado wrote the names on the board and counted the favorite which was expressed by a show of hands. The name of Union Independiente de Empleados de Palmas del Mar Company, Inc. was chosen. Thereafter Tosado took nominations for the positions of president, vice president, and secretary of Union Independiente. Em- ployee Isidro Falcon was chosen to be president; Juan Rodriguez as vice president; Laudelino Torres treasurer; and Maria Torres for secretary. All of these positions were voted upon by a show of hands except that Maria Torres was unopposed for secretary. In each instance Tosado wrote the names of the nominees on the black- board, counted the votes, and announced the winner. Carmen Donato, a maid in the housekeeping depart- ment, testified that there were two meetings in the month of May at which an independent union was men- tioned. Donato testified that she had been a delegate (or steward) of Union Titanes and at the monthly Steering Committee meeting conducted in early May, there were present Supervisors Stowell, Benitez, and Padilla' 7 At that meeting, according to Donato, Tosado stated that the Steering Committee should begin forming an inde- pendent union to oppose Local 610 which was then or- ganizing. Tosado stated that there would be another meeting that month to pick officers of the independent union.8 Donato testified that a second May meeting was conducted 8 days later; Tosado was the only manage- ment representative. Tosadso opened the meeting of about eight employees by stating that "you already know 4 Padilla is the architect of the Palmas del Mar Complex. B This first "May" meeting is not mentioned by other witnesses, in the complaint, or in the General Counsel's brief. the procedures to which we are going to reach about the independent union." At that point Tosado conducted the election for the four offices of the independent union. Donato did not testify that at the meeting there was any discussion about the medical plan or any other employee problems and did not testify, as did Abreu, on cross-ex- amination, that Tosado had stated that a new medical plan could be negotiated after the independent union was formed. On cross-examination, Donato testified that in each of the monthly Steering Committee meetings be- tween February and May, Tosado and other "manager- ials" would tell the employees that an independent union should be formed to oppose Local 610. No other em- ployee testified that supervisors in addition to Tosado gave such encouragement, or that there was more than one meeting at which formation of an independent union was suggested. Pedro Torres, a waiter, stated he was invited to the meeting by employee Laudelino Torres. According to Torres, Tosado began the meeting by stating that "in order to start to plan in regards to forming the union, we had to get an attorney, and they had to registered or in- scribed it in a place." After that, Tosado conducted the election of the officers. Torres offered no testimony on direct examination that anything was said about the med- ical plan or any other problems of the employees. How- ever, on cross-examination, Torres did state that "some- thing was said about the medical plan because the medi- cal plan that we had were [sic] not giving us the bene- fits." Tosado testified that employee Juanito Rodriguez9 ar- ranged for the room in the Green House with "the person that has to do with the renting of places in differ- ent meeting rooms" and invited him (Tosado) to attend a meeting of employees. According to Tosado he was re- quested only to be moderator at the meeting. Tosado tes- tified that he went to the meeting and did act as modera- tor, receiving the nominations and counting the votes, and did nothing further. Tosado further testified he told the employees that he would give them no further assist- ance in forming an independent union. Tosado specifical- ly denied ever hearing Stowell, Benitez, or any other member of management promise employees anything in his presence. Tosado testified that no business was con- ducted other than the selection of a name of the union being formed and election of the officers. Tosado testi- fied that Abreu was at the meeting at the Green House when he arrived; therefore he did, in effect, deny Abreu's testimony that he (Tosado) summoned Abreu to come with him to the meeting. Union Independiente called Isidro Falcon to testify. Falcon (again without leading) testified that on 7 Febru- ary he was invited to a meeting by an employee whose name he could not remember. At the time Falcon thought the meeting was going to be the February Steer- ing Committee meeting. Falcon first testified, that the em- ployees went immediately to the election of the board of directors; then Falcon stated that operations were dis- cussed with Tosado calling on each member of the de- B Rodriguez was not called to testify PALMAS DEL MAR CO. 75 partment to recite the operational problems of that de- partment. These "operational" problems included the problems which the employees had with the insurance, but Falcon denied that the medical plan was mentioned. After this, according to Falcon, Laudelino Torres stated that since all the representatives of each of the depart- ments were there that it would be a good time to nomi- nate a board of directors for an independent union. Fur- ther according to Falcon, Tosado stated he was there be- cause a group of employees had asked him to be the moderator. At that point the name of the Union Indepen- diente and the officers of it were selected, with Tosado conducting voting. 1. Credibility resolutions I do not believe that Tosado was requested by the em- ployees to be their moderator; any employee could have entertained nominations and counted a showing of hands. Tosado was at the meeting for more than that. Tosado had previously requested Abreu to form an independent union. I believe his request was carried over into subse- quent meetings of a Steering Committee. That is, I be- lieve, and find, that in a late January, or early February, meeting conducted by Tosado, he told the employees that they should form an independent union to oppose Local 610 which was then organizing and that there would be a subsequent meeting to do so. At the meeting Tosado entertained nominations and conducted a vote, but at his own initiative, and not that of the employees. Finally, I find that the testimony of Abreu is insufficient to prove the alleged fact that Tosado promised the em- ployees a better health insurance plan if they formed an independent union (even if the meeting at which this al- legedly occurred did take place during the 10(b) period); Abreu could not explain why he would have left this remark out of his pretrial affidavit, and he was corrobo- rated by no other employees although there were alleg- edly several other employees present. Paragraphs 5(d), (e), (g), and (h) of the complaint allege: (d) In or about the end of May 1984, Respondent, by Benny Tosado, Personnel Director, in his office, urged and requested an employee to form or join Union Independiente and urged and requested said employee to discourage other employees from join- ing or supporting Local 610. (e) In or about June 1984, Respondent, by Wil- liam Stowell, President, in the presence of Benny Tosado, Personnel Director, in Stowell's office, urged and requested an employee to join Union In- dependiente and promised said employee benefits and improved working conditions if Union Indepen- diente was chosen as the employees' representative for the purposes of collective bargaining and dis- coaraged said employee's membership in or support for any other labor organization. (g) In or about June 1984, on various occasions the exact dates being presently unknown, Respond- ent, by Benny Tosado, Personnel Director, in a public bar in Humacao, Puerto Rico, solicited an employee to encourage other employees to support Union Independiente and discourage said employees to support Local 610 or any other labor organiza- tion by offering said employees a better medical plan and improved working conditions. (h) In the same conversation described above in subparagraph 5(g), Respondent, by Benny Tosado, Personnel Director, urged and solicited an employ- ee to form and organize Union Independiente during working hours. In support of these allegations the General Counsel called employee Roberto Melendez who testified as to a series of meetings with Tosado and one meeting with Tosado and Stowell. Melendez initiated the deauthoriza- tion petition against Union Titanes and was the chief em- ployee-organizer for Local 610. Melendez testified, and Tosado did not dispute, that Tosado knew of these ac- tivities by Melendez. Melendez testified that in May he was called from his work place in the kitchen by Tosado. Tosado asked him to come to his office after Melendez got off work and Melendez did so. Melendez testified that while the two men were alone in Tosado's office, Tosado told Melen- dez that he wished that the employee would "discon- nect" himself from Local 610 and join Union Indepen- diente. Tosado added that if Union Independiente was selected Respondent would be able to offer the employ- ees more and be able to "comply" with its offers and, conversely, that with Local 610 "we were not going to achieve or get anything." Tosado added that the Union Independiente would be more expensive to Respondent, but it was also going to be better for the employees. Tosado asked Melendez to speak "with the boys" and to get them to join Union Independiente. Melendez replied that he had already organized for Local 610 and that Tosado should talk to "the people" himself.' Melendez owns a bar-restaurant in Humacao. He testi- fied that Tosado came several times to his bar after work in the May-July period. Melendez testified that in an early June visit Tosado asked him what the problems of the employees were. On direct examination Melendez testified that Tosado told him to write the problem of the employees down and that he did so. On cross -exami- nation, however, Melendez testified that Tosado asked him to name the problems of the employees, and that, as he did so, Tosado "had this notebook and he wrote them down." Whichever was correct, Melendez added that Tosado told him that he would meet with Mr. Kassan "to solve the employees' problems and for me to discon- nect myself completely from Local 610 and join them .. . that anything that I would need, the company was at the best disposition [sic] of giving to me." Melendez 10 Although not alleged as a violation, Melendez further testified that at the beginning of June Tosado called him on the telephone at his work station and asked him to attend a meeting which was being held at the telephone office. (The telephone office was a separate building which was owned by the telephone company, not Respondent.) Melendez went to the meeting where he was met by Isidro Falcon and other employees who were in favor of Union Independiente. Falcon and ther other em- ployees sought to persuade Melendez to join Union Independiente, but Melendez refused Tosado denied this; but I found Melendez credible on the point. 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testified that he replied to Tosado that he had already made his decision. Melendez testified that later in June Tosado called him at his workplace and asked him to meet with Stowell in Stowell's office. Melendez agreed to do so. Tosado met Melendez at the employees' locker room after work and from there the men drove to Stowell's office in Melen- dez' automobile. When they got to Stowell's office, Stowell, in Tosado's presence, asked Melendez to "dis- connect completely" from Local 610 because that union did not give anything and that Local 610 was "a union of violence" and that a person such as Melendez should not associate with Local 610. Stowell added that the best thing Melendez could do was join Union Independiente and bring those who were with him in Local 610 to sup- port Union Independiente. Further, according to Melen- dez, Stowell stated that with Union Independiente "they would be able to negotiate everything that employees would request and that with Local 610 they will not be able to get anything." Stowell further stated that if Me- lendez was afraid to disassociate from Local 610 because of fear for his personal safety, that "they would give me some bodyguards." Melendez replied that he did not want anyone watching over him. Finally, according to Melendez, Stowell added that Melendez "disconnect myself from Local 610 and that anything that I would need to have to talk with Mr. Tosado." Tosado, accord- ing to Melendez, added that Melendez should work to bring employees into Union Independiente and "to use my working hours or outside working hours, that the company was willing to pay me whatever it was." Me- lendez testified that he replied, "I did not act in that manner" and that Tosado ended the conversation by saying, "Think it over and to join them." Melendez further testified that Tosado visited the bar which Melendez owned in Humacao six or seven addi- tional times during the months of May through July. At each time, according to Melendez, Tosado asked him to disaffiliate from Local 610 and join Union Independiente. Tosado testified that he is required to pass by Melen- dez' bar on his way home each night and, until June or July, he stopped at the bar frequently to talk to Melen- dez and shoot pool or play dominoes. On direct examina- tion Tosado testified that in June or July when he stopped by Melendez' bar Melendez asked for a meeting in Tosado's office. Tosado did not say on direct examina- tion if Melendez stated at that point what the purpose of the meeting would be. Tosado's testimony then went to his being in his office alone with Melendez. There, ac- cording to Tosado, Melendez stated that he had 17 de- mands to make of management which, if satisfied, would cause Melendez to get the group of employees then in favor of Local 610 to shift their allegiance to Union In- dependiente. These demands included a salary increase of 30 to 40 cents an hour, an improved medical plan, a night-shift premium, and increases in holiday, vacation, sick leave, funeral leave, and other benefits. As Melendez spoke, Tosado copied the demands. Tosado testified that he told Melendez that the demands could not be granted for two reasons: the economic situation at Palmas (which was poor), and that legally Respondent still had a collec- tive-bargaining agreement with Union Titanes which did no expire until October 1984, so that the only bargaining that Respondent could do was with Union Titanes. Tosado further testified that Melendez replied that he understood that it could be done and that he wanted a meeting with Kassan or Stowell to see if his demands could be granted. Tosado replied that Kassan was not available and would not be for 10 or 12 days; Melendez replied that he wished to see Stowell with Tosado. Tosado continued in his testimony that on the follow- ing day he met with Melendez and Stowell. Melendez read from some document the same 17 demands , stating that he was doing that "so that I may convince my boys and bring them into the Union Independiente." Stowell,' further according to Tosado, told Melendez the same things that Tosado had: Respondent was in poor finan- cial situation and it could only deal with Union Titanes at that time. Tosado testified that upon hearing Stowell's reply, Melendez left the room in a very upset state. On direct examination, Tosado denied that he ever sought to get Melendez to abandon his allegiance to Local 610. But to the extent they differ, I credit Melen- dez. These things do not happen in a vacuum; if Melen- dez was one who had his allegiance for sale, he would have done or said something to someone else during the long campaign which would have revealed his duplicity. Respondent could demonstrate no such act. i i On the other hand Tosado's version makes no sense. He would not have let Melendez finish a long listing of 17 demands if he was, as he made out to be, so determined that Re- spondent would not bargain with Melendez, even if it could. Even more improbable is Tosado's testimony that he acceded to Melendez, demand for a meeting with Re- spondent's executive Stowell so that the same demands could be made and the same answers be given. Even the smallest of corporations consider the time of their execu- tives more valuable. Finally, Respondent failed to call Stowell as a witness and did not offer any reason for its failure to do so. If Stowell's testimony would have been favorable to Respondent, Respondent assuredly would have called him to testify, and I draw an adverse infer- ence from its failure to do so. I believe, and find, as Me- lendez described, that Tosado and Stowell, by promises of benefits, attempted to get Melendez to reverse his ef- forts and support the Union Independiente. Therefore I find and conclude that by this conduct of Tosado's and Stowell in May, June, and July, Respondent violated Section 8(a)(1) of the Act. Paragraph 5(f) of the complaint alleges: "In or about June or July 1984, Respondent, by Sergio Osorio, food and beverage supervisor, in his office, solicited an em- ployee to encourage other employees to form a labor or- ganization." Employee Abreu testified that in July 1984 Osorio asked Abreu to come to Osorio's office. There, accord- ing to Abreu: He proposed to me that we should form a group of employees who had experience, who were brave, 11 Respondent introduced hearsay by Tosado that Melendez had at- tempted to start another independent union Although not objected to, I am not bound to credit on this hearsay testimony, and I do not PALMAS DEL MAR CO that would be respected, and to support the inde- pendent union and while we were getting the sign- ing of the collective-bargaining agreement, if we have been able to organize that quality of employ- ees, he thought that we would not have any prob- lems at Palmas del Mar. On cross-examination Abreu acknowledged that at the time of the alleged incident he knew that an election was going to be conducted on 23 August; that date was set at a preelection conference on 23 July. Osorio, was not called to testify by Respondent, but Respondent argues that the statements by Osorio could not have been made since, by July 1984, Union Independiente had already been formed and an election including Union Indepen- diente was already scheduled. I find no impossibility in a post-26 July solicitation to form another organization to support Union Indepen- diente, and this was the thrust of Abreu's testimony. That is, I believe Abreu, and I find and conclude that this conduct by Osorio interfered with the employees' Section 7 rights in violation of Section 8(a)(1) of the Act. Paragraph 5(i) of the complaint alleges: In or about the end of July 1984, the exact date being presently unknown, Respondent, by William Stowell, President, in the presence of Benny Tosado, Personnel Director, Arnold Benitez, Gen- eral Manager and other supervisors, in an employee meeting at a conference room in "Green House," encouraged its employees to form, join and support, Union Independiente and discouraged said employ- ees from joining or supporting Local 610 or any other labor organization by, inter alga, informing said employees that Respondent could "work better" with Union Independiente. Abreu testified that during July he was asked by some fellow employees to come to a meeting at the Green House. At the meeting were about nine employees and Stowell, Benitez (general manager), Osorio, and Miguel Vega (who was an assistant to Osorio). According to Abreu, Stowell requested the employees to support Union Independiente. According to Abreu, Stowell said. That Union 610 would not allow him to work calmly or with tranquillity at the hotels he had worked with the Union 610 and that he did not want that to happen at Palmas and that is why he was requesting the support of all the employees that . .. they would support the independent union. Abreu's testimony stands unrebutted; Tosado did no more., than testify that he was not present when such re- marks were made by any other supervisors. If Stowell had not made the remarks attributed to him, Respondent would have assuredly have produced Stowell himself to deny them rather than rely solely upon Tosado's denial that he witnessed such remarks. That is, I draw an ad- verse inference from Respondent's failure to call Stowell, or explain why it did not, and I credit Abreu. While a statement of personal experiences which con- tains no promise of benefit or threat of reprisal is pro- 77 tected under the free speech proviso of Section 8(c) of the Act, 12 and a statement of a preference of one com- peting union over another is protected by the same pro- viso,13 an appeal for support for one labor organization over another is not.14 Accordingly I find and conclude that by the appeals for support for Union Independiente made by Stowell and Benitez, Respondent violated Sec- tion 8(a)(1) of the Act. Paragraph 5(k) of the complaint alleges: In or about August 1984, Respondent, by Benny Tosado, its Personnel Director, in the presence of Arnold Benitez, its General Manager, at the [Green House] promised employees an improved medical plan, pay raises and other unspecified benefits if said employees became members [of] and supported Union Independiente. In support of this allegation the General Counsel called employee Mildred Cardoza who testified that in August a fellow employee told her that she should go to a meeting at the Green House. At the meeting were Tosado, Benitez, Osorio, and Vega. According to Car- doza, Tosado, and Benitez spoke to a group of employ- ees gathered there. Cardoza testified: Well he [Tosado] said that we shouldn't vote for 610 because 610 was-one that could close hotels, to support the independent union, that we would- we were going to have better benefits . . . salary increase and . . . Blue Cross plan. . . . we didn't have need to have anybody from the outside to back us, that any problem that we might have, the door to their offices were open to solve the prob- lems. Tosado denied ever making any such statements; how- ever, I found Cardoza to be the more credible witness and I find that Tosado spoke to the employees in the manner described by Cardoza. One of the main com- plaints of the employees with Union Titanes was its ad- ministration of the medical plan; therefore, a promise of a better medical plan such as Blue Cross would necessar- ily have a substantial impact upon the employees and would necessarily have interfered with their free choice of a collective-bargaining representative. Accordingly, I find and conclude that by the remarks of Tosado, Re- spondent did, as alleged, violate Section 8(a)(1) of the Act. Paragraph 5(1) of the complaint alleges: In or about August 1984, on various occasions, the exact date presently unknown, Respondent, by Maria Vellon, Carmen Alciea Navarro, Castoria Rosario, and Gelda Fullings, housekeeping supervi- sors, at the housekeeping department, solicited an employee to support Union Independiente and fur- ther threatened said employees with cessation of op- 12 Sterling Aluminum Co., 163 NLRB 302 (1967) Gem International, Inc Y. NLRB, 321 F.2d 626 (8th Cir 1963) 14 World Wide Press, 242 NLRB 346 (1979). 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD eration and loss of jobs if Respondent's employees joined and/or supported Local 610. In support of this allegation the General Counsel called employee Carmen Donato. Donato testified that in the month of August, during working hours, Maria Vellon, along with Castoria Rosario,15 addressed a group of maids and told them: [N]ot to vote for 610, to vote for the independent union because the 610 union was a union that had problems with the hotel area, that they have al- ready closed several hotels, and that if 610 would win at Palmas del Mar, the hotel would close be- cause that was a very [trouble-making] union every- where. And that if we voted for the independent union, we could have better working conditions, better salaries, better medical plan and that they were going to lower the . . . amount of rooms the maids were assigned to clean. Donato further testified that Supervisor Gelda Full- ings, through an interpreter, called a meeting of house- keeping employees on 22 August and said. That if we voted for the 610 and not for the inde- pendent, that if 610 was chosen at Palmas del Mar that she would take her luggage and she would leave immediately because 610 was a union of prob- lems and that the company would not accept that union and that shw would leave us. And that after the elections, if Union 610 won, the hotel would close. Respondent called neither Vellon nor Fullings to deny the testimony of Donato. I find that Donato's testimony was credible and conclude that, by that conduct, Re- spondent, in violation of Section 8(a)(1), solicited em- ployees to support a labor organization by promises of benefits and threatened employees with cessation of op- erations and loss of jobs if Local 610 was selected by the employees as their collective-bargaining agent. Paragraph 5(o) of the complaint alleges: On or about August 16, 1984, Respondent, by Raymond Rivera, Bell Captain Supervisor, at the employees' cafeteria, threatened an employee with plant closure if Local 610 won a scheduled Board election. In support of this allegation the General Counsel called employee Fidel Serrano who testified that during the week before the 23 August election, in the employ- ees' cafeteria: Mr. Rivera told me that if the 610 was to win at Palmas, Palmas would have to close its operations because they would not be able to comply with the demands of that union. I didn't reply and we didn't speak anything else about the matter. 15 The complaint does not allege that Rosario is a supervisor within Sec 2(11) of the Act, and I make no finding in regard to her conduct Respondent did not call Rivera to rebut this testimony which I find credible. Rivera's statement was not limited to potential economic demands which, if Respondent agreed to and Respondent could not afford to meet, would cause business failure.16 It included all demands, including, presumably such matters as recognition, griev- ance procedure, and effective dates of a proposed con- tract. As such, this statement of Rivera had no point except to threaten an employee with cessation of business and loss of jobs if Local-610 were selected as the collec- tive-bargaining representative. Therefore it violated Sec- tion 8(a)(1) of the Act, as I so find and conclude. Paragraph 5(p) on the complaint alleges: "On or about July 17 and August 20, 1984, Respondent mailed to its employees a letter [sic] threatening said employees with cessation of operations if Local 610 won a Board-con- ducted election." Respondent sent two letters to its employees on 17 July. In a letter from William Stowell to all employees, it was announced that Triton Group, Ltd., the investment company which controls Respondent, had agreed to sell Palmas to the Maxxam Group, Inc., another financial in- stitution. The employees were told that the sale was sub- ject to approval by Triton's stockholders, and they ex- pected to give this approval around the end of Septem- ber 1984. The letter went on to say that Maxxam was a financially responsible institution which desired to "back the continued progress of Palmas." The employees were further told that the sale would "improve the future" of Palmas and the employees. It concluded that Respondent "will let you know of any important development in regard to the proposed sale." The second letter of 17 July enclosed a reprint of an article which had appeared into two Puerto Rico news- papers on 12 July. As the first paragraph of the letter to employees points out, the article recites a history of the closing of several hotels in the San Juan and the Isla Verde tourist sectors as well as the recent closing of two other large hotels in the area. The letter goes on to state: Regretfully, the closing of these two hotels will throw out on the street from six hundred (600) to seven hundred (700) fathers of families. The closing of the Hotel San Juan left eight hundred (800) fa- thers of families out of work. In the meantime, what have Local 610 and the other unions done to avoid their members losing their jobs? NOTHING. AB- SOLUTELY NOTHING. Local 610's specialty is closing or provoking the closing of the hotels where they managed to get in. Our jobs are being threatened by Local 610. Only ourselves, working together, can save our jobs. We cannot, nor should we, get into sterile fights among ourselves. We are fully convinced that Local 610 will not represent your best interest, nor much less the inter- est of all of us who work at Palmas. With Local 610, there might be a great risk of strikes and other risks and problems of which would make it impossi- is Cf. Tro-Cast, Inc, 274 NLRB 377 (1985). PALMAS DEL MAR CO. 79 ble to operate normally. Tourists run away from strikes and labor disturbances. Avoid the problems that those unions bring about. Don't jeopardize your job and those of your fellow-workers-still more important, the future of your children. Vote against 610 the day of the election. The letter of 20 August to the employees was signed by William Stowell. It states that the supervisors have heard that Local 610 will be defeated on the next Thurs- day, 23 August, by an ample margin and that Respond- ent was counting on the employees to keep their word to vote against Local 610. The letter goes on to state that: Whether or not the [Palmas] property is sold to the Maxxam Group will depend on your vote next Thursday. If this sale does not materialize, you, as well as I, as well as the entire operations, will face an uncertain future. Only you can control your future now; you will very soon decide whether you want to give that control to outsiders-persons who have already established a record as job destroyers, of strikes and violence and having a fourth-rate medical plan. Vote for yourself on Thursday. The General Counsel argues that the last two letters "impliedly threatened its employees with plant closure." However, there simply is no statement that Respondent intended to close or would close its hotel should Local 610 be successful at the election. The letter of 17 July does state that: "Local 610's specialty is closing or pro- voking the closing of the hotels where they managed to get in." This is campaign rhetoric in its purest form and is unlikely to be believed by even the most naive em- ployees. That is, no employee would believe that Local 610 would organize a hotel for the purpose of closing it down. At any rate, there is nothing in these two letters to convey the message that Respondent, of its own initia- tive, or because of circumstances participated by any- thing Local 610 would do, would go out of business merely because Local 610 was selected by the employ- ees. Accordingly, I find that Respondent has not violated Section 8(a)(1) of the Act by these two letters and shall recommend dismissal of this allegation of the complaint. However, the reference to the sale of Palmas to Maxxarn, and the potential effect of the coming election in the 20 August letter should be borne in mind when considering subsequent communications by Respondent to its employees. Paragraphs 5(q), (r), and (s) of the complaint allege: (q) By letters mailed to its employees dated "June, 1984" 30 July, 8, 12, 13, 15, 17, and 21 August, Respondent discouraged its employees from voting for or otherwise supporting Local 610. (r) On or about August 22, 1984, Respondent, by Glen Kassan, Chairman of the Board, in the pres- ence of William Stowell, President, Arnold Benitez, General Manager, Benny Tosado, Personnel Direc- tor and other supervisors, at the Convention Center, threatened its employees with cessation of oper- ations and loss of jobs if said employees voted for Local 610 in a scheduled Board election. (s) On or about August 23, 1984, Respondent caused a written notification to be included in its employees' paycheck envelopes threatening said employees with discharge if said employees voted for Local 610 in a scheduled Board election. In its brief the General Counsel contends by all of the letters referred to in paragraph 5(q) Respondent threat- ened employees "with a possibility of strike, violence, the loss of jobs and benefits, hard bargaining and cessa- tion of operations if Local 610 won the upcoming elec- tions."17 General Counsel's brief does not quote any lan- guage of the series of letters and offers only the conclu- sions that the letters were a "threat to the employees that if Local 610 won the election no agreement would be reached with Local 710, as a result the employees would have to go on strike and lose their jobs; there was going to be violence and, moreover, Respondent would close down its operations." I shall address the letters of "June," 30 July, and 8, 12, 13, 15, and 17 August first: The letters simply do not say that if Local 610 were chosen by the employees no agreement would be reached. The letters did state that in Respondent's opinion Local 610 was a union prone to striking and violence but did not state that such would be inevitable should the union win the election, nor would they logically have left that impression. These let- ters state that both sides have a right to reject proposals which were found to be unacceptable, but did not indi- cate Respondent would refuse to bargain in good faith. The letters state that the employer could be put out of business by a strike, but did not say at any point that Re- spondent would go out of business simply because Local 610 might call a strike of the unit employees. The state- ments of these letters are well within the free speech proviso of Section 8(c) of the Act. They contain no threat of reprisal nor promise of benefit. Therefore no violation of the Act can be premised upon their issuance, and I shall accordingly recommend dismissal of the alle- gation of the complaint based on these seven letters. However, the message of 21 August stands on a differ- ent footing. It must be considered along with Kassan's speech on 22 August (referred to in par. 5(r) of the com- plaint) and the notice included in the employees' 23 August paycheck envelopes, as well as factual matters in- cluded in order communications to employees relating to the proposed sale of Palmas to Maxxam. To recapitulate: In one of Respondent's two letters of 17 July, Stowell announced to the employees that Triton was proposing to sell, and Maxxam was proposing to buy, Palmas, that Maxxam was financially strong, and that the sale would "improve the future" of Respondent and the employees; the employees were further told that the sale was subject to the approval of the stockholders which was expected to be given in late September. The second letter of 17 July was an attack on Local 610 which, while found not violative here, did emphasize the 17 Br, p. 13 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD possibilities of strike if Local 610 were selected; it closed: "Don't jeopardize your job and those of your fellow- workers-still more important, the future of your chil- dren. Vote against 610 the day of the election." The letter of 20 August plainly states: "Whether the property is sold to the Maxxam Group will depend on your vote next Thursday. If this sale does not materialize, you, as well as I, as well as the entire operations, will face an uncertain future." On 21 August in the Respondent's in-house news bul- letin entitled "El Coqui," a notice to employees from Stowell was distributed to all employees. The letter began that the election on 23 August "will have a major impact on your future and that of Palmas." It continued: Palmas-and your jobs with Palmas-are at a crossroads. Plans have been announced to sell the resort facilities and property to MAXXAM. We are very hopeful that that sale will take place in late September. But, MAXXAM is very interested in the union election. In fact, They insisted that the sale not go through until late in September and insisted on the right to back out of the deal if they were not happy with any developments. MAXXAM is a successful company and has done its homework. They are well aware of the Local 610 threat which is facing us and they are insisting that they be able to keep all of their options open. As you know, our present owners, Triton, do not have the money to continue operations for many more months. MAXXAM is our future-if there is to be a future at all. Your help is absolutely essential. Only you can do your job each and every day with ethusiasm. Only you can prove to our guests-and, in turn, MAXXAM-that you are reliable and responsible. No outsiders can make our operations a success. The very reverse is true: outsiders could seriously harm our operations. It is up to us (employees, su- pervision, and management) working together to make Palmas a success. On Thursday, August 23, you have the future of Palmas, and your future, in your hands. Trust yourself- vote for yourself-vote against Local 610's stikes and other troubles. [Emphasis in original.] On 22 August, over Stowell's signature, Respondent distributed a 2-page listing of questions which had pur- portedly been asked by employees and Respondent's an- swers. The last question and answer, and accompanying quote from a newspaper article, are: Question: Did Maxxam purchase the property? The Truth: NO. Maxxam has not effected any purchase. It has decided not to proceed with the purchase until such time as the result of the election is known. See article below. /s/ William A. L. Stowell, President EL NUEVO DIA-Saturday, 28 July 1984 By Lisette Nunez-El Nuevo Dia A Palmas del Mar spokesman informed [sic] yes- terday, in a telephone conversation, that the sale of the tourist complex will be completed by the end of September or the beginning of October. All preceding answers argued against the selection of Local 610 in the election. Also on 22 August Respondent's chairman of the board, Glen Kassan, gave a speech to assembled employ- ees. After the speech, Stowell circulated to all employees a Spanish translation of Kassan's speech. I quote herein the English translation received in evidence of the Span- ish version circulated to the employees to show what parts of the speech were emphasized to the employees with underlining. Kassan began the speech by apologiz- ing for having to use a translator and then proceeded upon a history of Palmas del Mar. Kassan told the em- ployees that the Triton Group had purchased Palmas in 1975. He went on to state that: "When Triton started its fiscal year in June 1984, we had enough cash resources to survive until a little after January 1985. From then on our financial situation became very, very precarious." He continued: I have been involved in a lot of business dealings throughout the years and I assure you that this year, when I finish making out our budgets and our action plan for 1984-1985, All my past experience was telling me that it was a matter of just a few more months, when we would be forced to close the doors of this hotel and all of its recreational facilities. Kassan stated that although Triton had financed the op- eration, Palmas had continued to lose as much as $1 mil- lion in 1983. The speech makes its point: Under these circumstances it was indispensable to find a buyer for this property if we were to avoid that it close down leaving all the personnel jobless. Fortunately our search ended with the offer made for Palmas by the MAXXAM Group. MAXXAM is a company with its main office in New York. Their operations have two main as- pects-one is the manufacture of patterns for femi- nine attire, and the other one, real estate. The com- pany is a big one and is very well administered. If it purchases Palmas, this would be its first experience in the hotel field as well as Puerto Rico. Bill Stowell and I have had many conversations with the MAXXAM representatives and I am convinced that Palmas' future is with MAXXAM. MAXXAM is interested in continuing with Palmas' develop- ment as well as that of the properties Palmas has. The other Palmas owners, including Triton, would have liked to do more concerning Palmas. But we didn't have the funds. MAXXAM is willing to invest its funds carefully and reasonably in order to continue developing the property. There is the possibility that we can see more living facilities, more recreational facilities and even more rooms for the Candelero Hotel. This would all repre- sent more secure jobs, a better future for all of you PALMAS DEL MAR CO. and more job opportunities for all of us. You would benefit from Palmas' growth. That's the future I see for Palmas. We are on the threshold of becoming a great vacation center. You are standing on that threshold with us. The future is in your hands. Your future and Palmas' future could be entering a new stage if you so decide, if the very special sit- uation we have had here up to now-which charac- terized itself by the good understanding and fellow- ship that exists between the management and the employees-could be utilized to project Palmas at a big hotel and tourist center level. It is of the utmost importance that you grasp well what I am saying . Palmas' days under ' Triton are numbered . Palmas would inevitably have to close before the beginning of the next fiscal year which starts on June 1, 1985. With MAXXAM we would not only have a future facing us but perhaps a bril- liant future. MAXXAM has decided not to go ahead with the purchase until the end of September or the begin- ning of October. Its directors have become intimate- ly familiar with the hotel industry in Puerto Rico, the ups and downs for the tourist business , here, the labor-management picture on the island and Local 610's record. MAXXAM does not have to buy Palmas. Yes, let me repeat that for you, MAXXAM does not have to buy Palmas. Its contract, which I signed -as Presi- dent of Triton, gives them all kind[s] of escape clauses which would allow them to cancel the sale with no penalties at all. There are many other possi- bilities of investing in the real estate business that are being offered to them, not only in Puerto Rico but in the United States and abroad . We need them-but they do not need us. And they certainly do not need us if they ' see that we are heading straight into problems with Local 610. So, as I already told you, the future is in your hands. We -in conjunction with you-have made a lot of progress in making Palmas prosper and I wish to congratulate you for your efforts. But at this moment you have in your hands a decision to open wide the door that would lead you into a brilliant future with MAXXAM or to shut it completely. The MAXXAM management has asked us to call [them] to let [them] know the results of the voting. t s Once those ballots are counted I would have to make the call-a call that may mean more than what any others may have meant before to you in terms of your jobs, your future; you, with your votes are giong to tell me what I will have to tell MAXXAM. Thank you. Memorandum, which circulated the speech, states that many of Respondent's employees had requested a copy of Kassan's speech because they wanted to "take this 18 The translation of the circulated Spanish copy is obviously faulty at this point It states "The Maxxam management has asked us to call you to let you know the results of the voting " 81 message home and read it thoroughly with their fami- lies." Finally, before they voted, the employees received their pay envelopes with the following notice: "THIS IS YOUR LAST CHECK! You must decide whether you wish to give Local 610 control over your pay, job and your medical plan! Today you will decide your future at Palmas del Mar! BEFORE THE ELECTION!" The words immediately preceded by the exclamation marks were hand-printed with large lettering; the re- mainder was typed. 2. Analysis On 1,7 July, the same day another letter was issued at- tacking Local 610, the employees were told by letter that a sale to the Maxxam Group was in the making and that the sale would "improve the future" of Palmas del Mar and all of the employees. The letter of 20 July states flatly that "whether or not the property is sold to the Maxxam Group will depend on your vote next Thurs- day." Stowell's letter of 21 August states that "Maxxam is very interested in the Union election"; that Maxxam Group will depend on your vote next Thursday." Stowell's letter of 21 August states that "Maxxam is very interested in the Union election"; that Maxxam had in- sisted on the right to "back out of the deal if they were not happy with any developments"; that Triton did not have "the money to continue operations for many more months"; and that "Maxxam is our future-if there is to be a future at all." The question-and-answer sheet of 22 August stated that Maxxam "has decided not to proceed with the purchase until such time as the result of the election is known." On 22 August Kassan told the em- ployees, by speech and in writing, that Respondent was losing $1 million a year, and that under the circum- stances it was "indispensable to find a buyer for this property if we were to avoid that [closing] down leaving all the personnel jobless"; that Maxxam was that buyer; that "Palmas' days under Triton are numbered"; that without relief Palmas would have to close "on June 1, 1985"; that Maxxam knew about "Local 610's record"; that Maxxam "does not have to buy Palmas"; and that "Maxxam's management has asked him to call them to let them know the results of the election." Kassan's speech concluded that the call he was to make "may mean more than what any others may have meant before to you in terms of your jobs, your future; you, with your votes are going to tell me what I will have to tell Maxxam." As if Kassan's image of the telephone call which would put them all out of work was not dramatic enough, Respondent included in the employees' pay- check envelopes the next day a notice entitled "This is your last check."19 By this the employees were shown just what a termination notice would look like; and Re- spondent wanted them to remember it when they went to vote. In summary, Stowell's El Coqui remarks and the speech of Kassan on 22 August, and the notice in the last is I reject any contention that the handwritten message should only be read as. "This in your last check before the election," Such a statement would have been pointless, the employees were not expecting two pay- checks that day The notice was drafted as it was strictly for shock value. 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD paycheck envelope had one pervading theme: The hotel would not survive if it was not purchased by the Maxxam Group, and the Maxxam Group would not pur- chase the hotel if Local 610 was selected ; then the em- ployees would be out of a job. These threats, collectively and individually, are blatant violations of Section 8(a)(1), as I so find and conclude.20 Paragraphs 5(u) of the complaint alleges: (u) On or about August 24, 1984, Respondent mailed to all of its employees a letter expressing a continuing effort by Respondent to discourage em- ployees' support [of] a labor organization, particu- larly Local 610, by congratulating the employees in their victory in point [of] reference that Local 610 did not receive a majority of the votes in the elec- tion. On 24 August Stowell sent a letter to all employees over his signature. 21 In the letter Stowell congratulates the employees for achieving "a great triumph," and urges employees to put the campaign behind them, no matter how they have voted. It also states: I am requesting each member of our family at Palmas to get together and to go forward towards a better future having assured the future of our fami- lies and a Palmas del Mar that will prevail. . . . I know that I can count on your support and help working in harmony and union while we start this new phase in the development of Palmas del Mar. The letter closed with expressions of thanks and great af- fection. In his brief, the General Counsel argues that since, at the time, there were sufficient challenges to affect the re- sults of the election and there was the possibility that ob- jections could be filed, the "congratulations" constituted support and assistance to Union Independiente. The letter does not mention Union Independiente (or Local 610), and only the most strained of interpretations could lead to the conclusion that the employees would some- how be coerced by this letter, standing alone, in the event of a re-run election. Therefore, an independent violation of Section 8(a)(1) of the Act may not be made out on the basis of this letter; accordingly, I shall recom- mend dismissal of this allegation of the complaint. However it is well to note that the above-quoted por- tion of the 24 August letter fortifies my conclusion that the employees had been threatened that the economic future of the hotel, and their jobs, depended on the rejec- tion of Local 610. In the letter the employees are assured that, as of the date, the future of Palmas, and their fami- lies, is bright. The only intervening circumstances be- tween the threatening letters by Stowell and the threat- 20 See Ona Corp., 261 NLRB 1378 (1982), enfd in relevant part 729 F 2d 713 (11th Cir. 1984), where the Board found violative the conduct of the employer who first portrayed the receipt of a new line of produc- tion as the salvation of the plant, then it told the employees that if the union was selected the new line may not be received Here, Respondent was more direct, the clear message was that the economic salvation would not occur if Local 610 was chosen 21 The letter was received in evidence as Resp Exh 2, and it was translated by the official interpreter at Tr pp 216, 217 ening speech by Kassan, and the assurances of the 24 August letter from Stowell, was the 23 August failure of Local 610 to receive the majority of votes in the Board election. That is, the preceding threats were suspended after they had apparently achieved the desired affect. B. The 8(a)(2) Allegations Paragraphs 7 and 8 of the complaint allege that the conduct alleged to be violative of Section 8(a)(1) in para- graph 5 also constitutes rendering unlawful assistance and support, and domination and interference with the formation and administration of, Union Independiente in violation of Section 8(a)(2) of the Act. To summarize the violations found on the basis of the allegations of paragraphs 5(d) through (i) of the com- plaint:22 Between May and July Tosado met several times with employee Roberto Melendez, both in Tosa- do's office and at Melendez' bar-restaurant, and urged the employee to disassociate himself from Local 610 and join the organizational effort of Union Independiente, and request Melendez to attempt to get other employees to do the same; additionally Stowell, in Stowell's office, also urged Melendez to abandon Local 610 and convince other employees to do the same, and promised Melendez economic benefits (for himself and all the other employ- ees) if he did so. In July, Osorio solicited employee Abreu from some sort of organization which would sup- port Union Independiente. In July, Stowell and Benitez urged a group of employees to give their support to em- ployees because Respondent could work better with that labor organization. In August, Tosado and Benitez urged a group of employees to support Union Independiente with a promise of a better health care plan if they did. And in August, Vellon and Fullings threatened groups of the maids that the hotel would close if Local 610 was se- lected instead of Union Independiente. At minimum, these actions by Respondent constitute unlawful "support" of Union Independiente within the meaning of Section 8(a)(2) of the Act, as I find and con- clude. However, there is no evidence, within the 10(b) period, that Respondent also dominated or interfered with the formation and administration of Union Indepen- diente. Certainly, there is no allegation that any of Re- spondent's agents participated in any activities of Union Independiente after the conduct of the February meeting by Tosado.23 Moreover, there is no evidence of any managerial control of, instruction to, or participation in the organizational structure of, Union Independiente within the 10(b) period. In these circumstances, it cannot be said that Respondent dominated Union Independiente, and I Shall accordingly recommend that this allegation of the complaint be dismissed. 22 The remainder of the violations found hereinabove were in the con- text of a virulent campaign against Local 610, but they did not, of them- selves, advocate the selection of Union Independiente 23 Tosado did attend a party held by Union Independiente, but he did nothing there which would constitute an element of domination. PALMAS DEL MAR CO. C. The Objections Petitioner's first objection is that Respondent "created and dominated" Union Independiente. As this conduct occurred prior to the petition being filed on 6 July, it may not be made the basis of objections herein.24 Petitioner's second objection is that the employer sup- ported Union Independiente. This objection is supported by the conduct of Supervisors Tosado, Stowell, Osorio, Benitez, Vellon, and Kassan as discussed above. Petitioner's third objection is essentially a repetition of its first and is not a sufficient basis for setting aside the election. Petitioner's fourth objection is that the Employer fur- nished meeting places and food and beverage to Union ]independiente during hours which were paid for by the employer. There is no evidence of this occurring within the critical period and I shall recommend that this objec- tion be overruled. Petitioner's fifth and sixth objections refer to the aspeeches and letters of Stowell and Kassan found viola- tive above. As these messages contained threats of clo- sure if Local 610 were selected as the representative of the employees, they constitute objectionable conduct as well. Petitioner's seventh objection is that Respondent made repeated references to the inevitability of a strike if Local 610 were selected. While the strike theme was prominent in Respondent's publicity, in none of it does it state that strikes would be inevitable; nor would employ- ees reasonably be led to believe that strikes were inevita- ble because of these references. Accordingly, I shall rec- ommend that this objection be overruled. Petitioner's eighth objection is that Respondent's rep- resentatives "surveyed, questioned and polled employees in relation to their union sympathies and the way they were going to vote." There is no evidence in support of this objection, and I shall accordingly recommend that it be overruled. Petitioner's ninth objection is that a supervisor, Angel Morales, placed a sign in the cafeteria that "Strikes, Vio- lence and Hostilities" were the slogans of Local 610. There is no evidence submitted in support of this objec- tion, and I shall accordingly recommend that it be over- ruled. Petitioner's 10th objection is that Union Independiente and Respondent distributed copies of the official sample ballot marked in favor of Union Independiente. No evi- dence in support of this objection was submitted, and I accordingly recommend that it be overruled. Petitioner's 11th objection is that supervisors were de- liberately classified as ordinary employees for purposes of the election. There is no evidence in this regard, and I shall accordingly recommend that it be overruled. Petitioner's 12th objection is that Respondent sent no less than five letters to all employees attacking exclusive- ly Local 610 and asking the employees to vote against it. The matter of the letters to the employees has been cov- ered above. There is no merit to the contention that by the number of letters to employees, alone, objectionable 24 See Ideal Electric Co., 134 NLRB 1275 (1961) 83 conduct occurred. Accordingly, I shall recommend that this objection be overruled. Petitioner's 13th objection refers to the notice included in the employees' last paycheck before the election that "this was their last check." As I have found that this conduct constitutes a threat within the meaning Section 8(a)(1) of the Act, I shall further recommend that the Board sustain this objection to the election. Petitioner's 14th objection is that Respondent distribut- ed a newspaper called El Coqui de Palmas urging em- ployees to vote against Local 610. As stated above, the article distributed was a reprint of Stowell's 21 August speech. As I found that the speech contained a threat of hotel closure if Local 610 was selected by the employ- ees, the action further constitutes objectionable conduct, and I shall recommend that this objection be sustained. Petitioner's 15th objection refers to Kassan's speech which I have found constituted an independent violation of Section 8(a)(1) as it was a threat to close the hotel if Local 610 was selected. Accordingly, I shall further rec- ommend that this objectiopn to the conduct affecting re- sults of the election be sustained. Petitioner's 16th objection is a "catchall" statement that Respondent otherwise "violated the law in its elec- tion campaign." This objection need not be dealt with further as no evidence was submitted by petitioner in support of this objection. D. Recommendations I find and conclude that the violative conduct speci- fied above which occurred after 6 July and before the election of 23 August support the objections to conduct affecting the results of the election filed in Case 24-RC- 6910 and that said objections have merit as they are of a character which would have a substantial impact on the employees' freedom of choice and prevent a free and fair election. It is therefore recommended that the election shall be set aside and a new election held when the Re- gional Director deems that the circumstances permit a free choice of bargaining representative. IV. THE EFFECT OF THE UNFAIR ]LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations de- scribed in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices violative of Section 8(a)(1) and (2) of the Act, I shall recommend that it be ordered to cease and desist therefrom and from any like or related manner interfering with its employees' Section 7 rights and that it take certain affirmative action designed to effectuate the policies of the Act. On the basis of the foregoing findings of fact and on the entire record, I make the following 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 610, Union Independiente, and Union Titanes are labor, organizations within the meaning of Section 2(5) of the Act. 3. By the following acts and conduct, Respondent has violated Section 8(a)(1) of the Act: (a) Urging employees to vote for Union Independiente, and against Local 610, with promises of benefits and threats of reprisals. (b) Urging an employee to form an organization to support Union Independiente in an election campaign. (c) Threatening employees with a cessation of oper- ations if the employees supported Local 610 or chose it as their collective-bargaining representative. (d) Appealing to employees to support one labor orga- nization over another. 4. By supporting Union Independiente, Respondent has violated Section 8(a)(2) of the Act. 5. Respondent has not otherwise violated the Act as alleged in the complaint. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed25 ORDER The Respondent, Palmas del Mar Company, Hato Rey, Puerto Rico, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Urging employees to vote for Union Independiente de Empleados de Palmas del Mar, and against Union de la Industria Gastronomica de Puerto Rico, Local 610, Hotel and Restaurant employees International Union, AFL-CIO, with promises of benefits or threats of repris- als. (b) Urging employees to form an organization to sup- port Union Independiente de Empleados de Palmas del Mar in an election campaign. (c) Threatening employees with cessation of operations if the employees supported Union de la Industria Gas- tronomica de Puerto Rico, Local 610, Hotel and Restau- rant Employees International Union, AFL-CIO or if they chose it as their collective-bargaining representa- tive. (d) Appealing to employees to support one labor orga- nization over another. (e) Rendering support to Union Independiente de Em- pleados de Palmas del Mar, or any other labor organiza- tion. 2. Take the following affirmative action necessary to effectuate the policies of the Act. 25 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec lq2 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. (a) Post at its Humacao, Puerto Rico, facilities copies of the attached notice marked "Appendix."26 Copies of the notice, on forms provided by the Regional Director for Region, 24, after being signed by the Respondent's authorized representative, shall be posted by the Re- spondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER ORDERED that the election conducted on 23 August 1984 in Case 24-RC-6910 is set aside. A new election shall be held at such time as the Regional Director for Region 24 decides that the circumstances permit the free choice of a bargaining representative. 26 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT urge you to vote for union Indepen- diente de Empleados de Palmas del Mar, and against Union de' la Industria Gastronomica de Puerto Rico, Local 610, Hotel and Restaurant Employees Internation- al Union, AFL-CIO with promises of benefits or threats of reprisals. WE WILL NOT urge you to form an organization to support Union Independiente de Empleados de Palmas del Mar in an election campaign. WE WILL NOT threaten you with a cessation of oper- ations if you support Union de la Industria Gastronomica de Puerto Rico, Local 610, Hotel and Restaurant Em- ployees International Union, AFL-CIO or choose it as your collective-bargaining representative. WE WILL NOT appeal to you to support one labor or- ganization over another. WE WILL NOT render support to Union Independiente de Empleados de Palmas del Mar, or any other labor or- ganization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. PALMAS DEL MAR COMPANY