Caribe Staple Co.

National Labor Relations Board - Board Decisions

Feb 28, 1994

313 N.L.R.B. 877 (N.L.R.B. 1994)

877
313 NLRB No. 151
CARIBE STAPLE CO.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all of 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.
2 We note that the General Counsel did not except to the judge’s
finding that the Respondent did not engage in overall bad-faith bar-
gaining.
3 We shall modify the judge’s recommended Order to include the
Board’s standard reinstatement language and the judge’s rec-
ommendation that the certification year be extended by 1 year. We
shall also modify the judge’s recommended Order to include Miguel
Ramirez, whom the judge inadvertently omitted, and to correct the
spelling of the names of some of the discriminatees.
4 See, e.g., Sun World, Inc., 271 NLRB 49 fn. 1 (1984).
5 See, e.g., GHR Energy Corp., 294 NLRB 1011 fn. 5 (1989).
Caribe Staple Co., Inc. and Juan Suarez and Jose
E. Rios-Rodriguez and Richie Vazquez and
Union General de Trabajadores de Puerto
Rico. Cases 24–CA–6381, 24–CA–6399, 24–CA–
6551, 24–CA–6569, 24–CA–6586, and 24–CA–
6701
February 28, 1994
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND TRUESDALE
On August 16, 1993, Administrative Law Judge Joel
A. Harmatz issued the attached decision. The Respond-
ent filed exceptions and a supporting brief. The Gen-
eral Counsel filed cross-exceptions and a brief in sup-
port of the cross-exceptions and in answer to the Re-
spondent’s exceptions.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings,1 and conclusions2 and to adopt the rec-
ommended Order as modified.3
The General Counsel cross-excepts to the judge’s
failure to include in the recommended Order a provi-
sion providing that the notice be written in both
English and Spanish and that it be mailed to all em-
ployees, as well as posted at the Respondent’s facility.
It appears from the record that some, if not most, of
the employees are primarily Spanish-speaking. Further,
the General Counsel alleges, and the Respondent does
not contest, that the plant has been closed. Accord-
ingly, we find merit to both of the General Counsel’s
cross-exceptions and shall order that the notice be
posted in both English and Spanish4 and mailed to the
employees who were working at the facility at the time
of its closure.5 We leave to the compliance stage final
determination as to the date of the facility’s closure.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Caribe Staple Co., Inc.,
Luquillo, Puerto Rico, its officers, agents, successors,
and assigns, shall take the action set forth in the Order
as modified.
1. Substitute the following for paragraphs 2(a), (b),
and (c).
‘‘(a) Offer Juan Suarez immediate and full reinstate-
ment to his former position or, if that position no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or
privileges previously enjoyed, and make him whole for
any loss of earnings and other benefits suffered as a
result of the discrimination against him, in the manner
set forth in the remedy section of the decision.
‘‘(b) Make whole, with interest, the employees listed
below for losses each sustained by reason of a 3-day
discriminatory suspension:
Carlos Baez David Casillas
Randolph J. Miguel Ramirez
Feliciano Luis M. De Jesus Cepeda
Safin Figueroa Miguel Garcia
Gilberto Gonzalez Ruben Hernandez
Jose E. Laureano Celestino Montanez
Efrain Pagan Eric Soto
Hector Western Miguel Rivera
Angel M. Rosa
‘‘(c) Remove, delete, and expunge from the employ-
ment records of Juan Suarez and the 16 employees
named above any and all references to the discharge
and suspensions, respectively, and inform them that
these incidents will not in any fashion be used against
them in the future.’’
2. Substitute the following for paragraphs 2(e), (f),
and (g) and reletter the subsequent paragraph.
‘‘(e) On request, bargain with the Union as the ex-
clusive representative of employees in the above-de-
scribed unit, as if the initial year of certification has
been extended for an additional 1 year from the com-
mencement of bargaining pursuant to the Board’s
Order in this case and, if an understanding is reached,
embody the understanding in a signed agreement.
‘‘(f) Post at its facility in Luquillo, Puerto Rico,
copies of the attached notice marked ‘‘Appendix.’’105
Copies of the notice, in both English and Spanish, on
forms provided by the Regional Director for Region
24, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent im-
mediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to
878 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ensure that the notices are not altered, defaced, or cov-
ered in any other material.
‘‘(g) Mail copies of the notice in both English and
Spanish to each employee employed by the Respond-
ent at the time of the facility’s closure.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
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 or-
dered 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 representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT instruct employees not to engage in
union activity.
WE WILL NOT create the impression that union activ-
ity is subject to surveillance.
WE WILL NOT direct employees to quit their jobs if
they wished to form a union.
WE WILL NOT threaten that the plant will close be-
cause employees have engaged in union activity.
WE WILL NOT declare that union organization would
be futile as the Company will never accept a union.
WE WILL NOT inform employees that they will be
watched because of their union affiliation.
WE WILL NOT threaten that union leaders will be
discharged.
WE WILL NOT inform employees that they could
vote in a representation election as long as they vote
against the Union.
WE WILL NOT threaten to challenge ballots at a rep-
resentation election because of a voter’s union senti-
ment.
WE WILL NOT request employees to spy and report
back on union activity.
WE WILL NOT create the impression that future
union activity will be subject to surveillance.
WE WILL NOT discourage membership in Union
General de Trabajadores de Puerto Rico, or any other
labor organization, and WE WILL NOT discourage em-
ployees from participating in protected concerted activ-
ity by discharging, suspending, or in any other manner
discriminating against our employees with respect to
wages, hours, or other terms and conditions or tenure
of employment.
WE WILL NOT refuse to bargain in good faith with
the Union General de Trabajadores de Puerto Rico, as
exclusive representative of employees defined imme-
diately below by refusing to meet at reasonable times
or refusing to meet unless the Union agreed to reduce
the size of its negotiation term, to withdraw all pend-
ing unfair labor practice charges, to waive the right to
file such charges in the future, to agree that daily ne-
gotiations would not exceed 4 hours, and to submit a
written bargaining agenda to us prior to each session.
The appropriate collective-bargaining unit consists of
the following employees:
All production and maintenance employees, in-
cluding leadmen employed by us at our place of
business in Luquillo, Puerto Rico, but excluding
all other employees, office clerical employees,
guards and supervisors as defined in the Act.
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.
WE WILL offer Juan Suarez immediate and full rein-
statement to his former position or, if that position no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or
privileges previously enjoyed, and WE WILL make him
whole for any loss of earnings and other benefits he
sustained by reason of our discrimination against him,
plus interest.
WE WILL make the employees listed below whole
for any loss of earnings they sustained by reason of
our discrimination against them plus interest, as set
forth in the decision of the administrative law judge:
Carlos Baez David Casillas
Randolph J. Miguel Ramirez
Feliciano Luis M. De Jesus Cepeda
Safin Figueroa Miguel Garcia
Gilberto Gonzalez Ruben Hernandez
Jose E. Laureano Celestino Montanez
Efrain Pagan Eric Soto
Hector Western Miguel Rivera
Angel M. Rosa
WE WILL notify Juan Suarez and the 16 employees
named above that we have removed from our files any
reference to the unlawful discharge and suspensions,
respectively, and that our actions in that respect will
not be used against them in the future in any way.
WE WILL, on request, bargain with the Union, as the
exclusive representative of employees in the above-de-
scribed unit, as if the initial year of certification has
been extended for an additional 1 year from the com-
mencement of bargaining pursuant to the Board’s
Order in this case, and WE WILL put in writing and
879CARIBE STAPLE CO.
1 Richie Vazquez was an original individual in this proceeding.
During the hearing, Cases 24–CA–6518 and 24–CA–6382 were re-
solved pursuant to an informal settlement stipulation as between the
parties. Jt. Exhs. 1(a) and (b). Pursuant thereto, the cases were sev-
ered and adjourned sine die pending compliance.
2 Certain errors in the transcript have been noted and corrected.
3 Unless otherwise indicated, all dates refer to 1991.
4 The tally showed that of approximately 114 eligible employees,
2 ballots were void, and 67 cast valid ballots for, and 44 against rep-
resentation by the Union, with 3 nondeterminative challenges. G.C.
Exh. 100(c).
5 Suarez testified that he organized this meeting, but he could not
attend as he was assigned to the second shift and the meeting took
place at 3 p.m.
6 Jaile testified that a fourth employee, identified only as ‘‘Ponce,’’
was present. Narvaez confirmed that there were only three. Jaile was
mistaken in this regard. Contrary to the General Counsel, the tran-
script does not appear to be flawed in this respect and I see nothing
sinister in this aspect of Jaile’s testimony.
7 Jaile’s testimony implies strongly that he considered Suarez, spe-
cifically, as the one that would know the most about the rumored
union activity.
sign any agreement reached on terms and conditions of
employment for our employees in the bargaining unit.
CARIBE STAPLE CO., INC.
Antonio Santos and Virginia Milan, Esqs., for the General
Counsel.
Victor M. Comolli, Esq., of San Juan, Puerto Rico, and Rich-
ard F. Nelson, Esq., of Chicago, Illinois, for the Respond-
ent.
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge. This case1
was tried in Hato Rey, Puerto Rico, on March 22–25, 29,
and 30, 1993, on an initial unfair labor practice charge filed
on August 21, 1991, and a fourth consolidated complaint
issued on March 27, 1991, alleging that the Respondent vio-
lated Section 8(a)(1), (3), and (5) of the Act. In its duly filed
answer, the Respondent denied that any unfair labor practices
were committed. Following close of the hearing, briefs were
filed on behalf of the General Counsel and the Respondent.
On the entire record,2 including my opportunity directly to
observe the witnesses while testifying and their demeanor,
and after considering the posthearing briefs, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, an Illinois corporation duly authorized to
do business in Puerto Rico, is engaged in the manufacture
of industrial staples from its facility located at Luquillo,
Puerto Rico. In the course of that operation, the Respondent
annually purchases and receives at its facility goods and ma-
terials valued in excess of $50,000 shipped directly from
suppliers located outside the Commonwealth of Puerto Rico.
The complaint alleges, the answer admits, and I find that the
Respondent is, and has been at all times material, an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
the Union General de Trabajadores de Puerto Rico (the
Union) is a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary Statement
This proceeding follows the Union’s designation by a ma-
jority at a Board election held on October 17, 1991,3 among
the Respondent’s previously unrepresented production and
maintenance employees.4 The complaint is founded on coer-
cive antiunion conduct and discrimination that allegedly took
place both before and after the election. In addition, it is al-
leged that during ensuing contract negotiations, the Respond-
ent, on numerous counts, was guilty of bad-faith bargaining.
B. The Preelection Period
1. The discharge of Juan Suarez; related allegations
a. Union activity
Juan Suarez was hired by the Respondent in late 1988. He
worked as a machinist in the toolroom, along with eight or
nine other machinists, under immediate supervision of Jorge
Narvaez. He was discharged on August 19. The General
Counsel contends that the Respondent took this step as a re-
prisal for union activity, thus, violating Section 8(a)(3) and
(1) of the Act. In addition, the complaint sets forth a variety
of independent 8(a)(1) violations, occurring prior to the dis-
charge, and allegedly addressed to Suarez’ union activity.
Suarez declares himself to be the original protagonist of
the Union. He asserts that he started discussing the possibil-
ity of organization with coworkers in March 1991. He avers
that those discussions continued through April, and then, on
May 30, he actually met with union officials, signing an au-
thorization card on that date, while obtaining blank cards. He
claims to have thereafter solicited cards from coworkers, and
organized the first union meeting for June 5 at the home of
Daniel Vila.5
b. The knowledge issue and related 8(a)(1) allegations
Although the Respondent contends otherwise, the record
contains an admission that, dating back to only a few weeks
before the discharge, it at least suspected that Suarez was the
leading proponent of the Union.
Thus, on August 2, Suarez, Rafael Parilla, and Daniel Vila
were summoned to meet with Production Manager Frank
Jaile. Supervisor Narvaez was also present. The complaint
imputes independent 8(a)(1) violations to Jaile during the
course of this session.
Jaile admits to calling this meeting on August 2,6 after
learning that ‘‘some of the employees were not happy with
the Company’’ and that he ‘‘heard they were gonna . . .
bring a union to the Company.’’7 He admits that he asked
the employees why they were not happy, whereupon all de-
nied that this was the case, also denying knowledge of the
880 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 According to Suarez, Narvaez commented that management
would learn the identity of employees affiliated with the Union be-
cause the cards would be turned over to the Company, and ‘‘we will
take matters into our hands.’’ Narvaez denied making the comment.
This is not the subject of an 8(a)(1) allegation and in the light of
several other violations to be found herein, would appear to be cu-
mulative.
9 Narvaez was examined as to the incident, but professed to a lim-
ited recollection. Remarkably, could not even recall that union activ-
ity was mentioned on this occasion. Indeed, he initially denied that
he was aware that organization activity was in progress at the time.
Later, however, he admitted that since June, ‘‘rumors’’ to that effect
that were ‘‘all over the place.’’ It was my impression that he re-
called more than he was willing to admit and his performance in this
regard, hardly, enhanced my confidence in Jaile’s account.
10 G.C. Exh. 13.
11 Jaile claims that he had no recollection that Suarez made this
point, but denied that Suarez protested that the discharge was falsely
grounded because others had to be involved yet were not disciplined.
12 Narvaez apparently reported the incident to Jaile in writing by
a memo dated August 16. R. Exh. 2(b).
13 Jaile admitted that Suarez blamed the discharge on his union ac-
tivity.
14 R. Exh. 2(d).
15 R. Exh. 2(c).
16 Narvaez testified that he assumed that the conversation was
started by Suarez because he was the only one not working. On
cross-examination, Narvaez was asked to elaborate. He testified that
most of the other employees were running their machines, while one
was reading a blueprint. All were ‘‘doing their jobs’’ as they listened
to Suarez. Later, he altered his testimony to indicate that none were
doing their work. Ultimately, on my questioning, Narvaez testified
that Suarez was regarded as the principal offender because he was
seated while the others were at their work stations. He conceded that
but for this fact, Suarez would not have been terminated. The claim
that he caused a disruption was taken as a thinly premised exaggera-
tion.
Union. He then explained that he left a union job in Chicago,
but left to work for Duo-Fast after two strikes in 5 years. He
admittedly told the employees that ‘‘if they were not happy,
I can get the lady from the payroll department to make out
the checks, and . . . they could go and get themself a job
someplace else where they’d be happy.’’
Suarez and Vila, an incumbent employee, agree that Jaile
opened the meeting by inviting them to quit if they were un-
happy with their jobs. Over Jaile’s denials, they testified that
Jaile identified them as the union leaders, and stated that he
was aware of the June 20 union meeting and knew all who
attended. They further testified, also over Jaile’s denial, that
the latter declared that the Company would not accept a
union under any circumstances and that it would prefer to
close down and move to Mexico, Costa Rica, or the Domini-
can Republic.8 Both relate that Jaile repeated the shutdown
and relocation threat several times before the meeting ended.
Jaile’s own version of what transpired substantiates that
the Respondent violated Section 8(a)(1) of the Act by in-
forming employees that they had a choice between quitting
and forming a union and by creating the impression that
union activity was subject to surveillance. I also find that the
credited, mutually corroborative testimony of Suarez and
Vila establishes that Jaile also threatened plant closure and
declared that union organization would be futile as the Com-
pany would not accept a union.9 I find that the Respondent
violated Section 8(a)(1) in these respects as well.
In addition, Jaile’s testimony as to the considerations
prompting the August 2 meeting confirms that, at that time,
he held Suarez suspect as a key proponent of the Union.
c. The discharge
An organizational meeting was held on Sunday, August
18. Suarez participated in arranging that meeting.10 Approxi-
mately 20 employees attended.
According to Suarez, at 2:15 p.m. on the next day, Mon-
day, August 19, he was again summoned to Jaile’s office.
Suarez requested that he be accompanied by a coworker,
Daniel Vila. The request was denied and he and Jaile met
alone. Jaile accused Suarez of having clocked in on Friday,
August 16, at 6:53 a.m., but then sat in his work area talk-
ing, doing nothing until 7:15 a.m. when his supervisor in-
structed that he go to work. Suarez questioned the accusa-
tion, noting that if he had been talking, the other person in-
volved should have been called down as well.11 Jaile alleg-
edly brushed the point aside, stating that he believed the su-
pervisor’s report.12 Suarez states that he argued back:
Listen. Let’s stop this nonsense. Because, I’m going to
tell you something: because of my responsibility, be-
cause of my conduct, and because of my attendance to
work, you can not—pin me. But, because of the Union,
Yes. Yes, because I am the President and Organizer.
And I am going to tell you one thing: we are going to
have an election. And we are going to win the election.
And you are going to receive such a beating at the elec-
tions, because we are going to win for so much that
you are going to remember us for the rest of your
life.13
According to Suarez, Jaile at this point stated that he was
‘‘fired.’’ Suarez replied, ‘‘Fantastic . . . . then, make my
checks out.’’ After Jaile stated that Suarez would have to re-
turn the next day to pick up his pay, Suarez demanded pay-
ment for his mileage, adding that, ‘‘besides when you fire a
person, you pay them immediately.’’ According to Suarez,
Jaile declared, ‘‘I don’t have to pay you anything.’’
The Respondent contends that Suarez was terminated sole-
ly because, in the face of prior warnings, on August 16 he
persisted in talking when he was supposed to be working.
Narvaez and Jaile agree that past warnings citing Suarez for
failing to produce at accepted quality levels figured promi-
nently in the decision. In this connection, the Respondent
documented these earlier offenses. Two written warnings
were proffered that predated Suarez’ May 30 initial contact
with the Union. Both related to his production of defective
parts. The first was dated April 23.14 Suarez denied ever see-
ing this document. It is clear, however, that he did receive
a warning on May 3, 1991, reminding that Suarez had been
warned previously, but again was producing parts contrary to
specifications. He was informed specifically that ‘‘if another
problem occurs, you will be suspended or dismissed.’’15
Suarez contested the latter as ‘‘not correct.’’
As for the events of August 16, Narvaez testified that, on
August 16, 1991, at 7:15 a.m. Suarez was sitting on his
bench, talking and ‘‘disturbing’’ the work of other employ-
ees.16 He claims that when he attempted to discuss the mat-
881CARIBE STAPLE CO.
17 Narvaez’ written account of the incident fails to mention that
Suarez showed any disrespect toward him. R. Exh. 2(b). Jaile’s writ-
ten account mentions ‘‘disrespect towards his supervisor’’ but not as
part of this incident. R. Exh. 2(a). Narvaez claims that he had given
verbal warnings for such offenses, but admits that he failed to reduce
any to writing.
18 Narvaez testified that he had warned Suarez for being out of his
work area, and wandering around the plant, when he should be
working. Jaile agreed that Suarez had been warned in the past for
such offenses. Misconduct of this nature, just as the accusations of
disrespect toward a supervisor, would entail a significant breach of
discipline. Yet, Narvaez prepared nothing in writing to memorialize
these warnings. This is important because the Respondent maintains
a progressive system of discipline which commences with an oral
warning. R. Exh. 1(a), pp. 3 to 5. Only where such warnings are
recorded in writing would a personnel file contain the justification
necessary to eliminate controversy as to the propriety in moving on
to the next disciplinary step. I did not believe Narvaez intimation
that in 1991 the use of such written notations was ‘‘not exactly’’ the
practice. I am persuaded by the General Counsel’s argument that no
prior infraction was documented because, in fact, none occurred. 19 Instead, Jaile appeared to argue that the others were working.
ter with Suarez, the latter responded in bad language.17
Narvaez claims that he had warned him orally on three prior
occasions about this type behavior.18
The Respondent has introduced a document dated August
19, signed by Jaile setting forth the grounds for terminating
Suarez, as variously founded on negligent and careless work,
recent verbal warnings based on his interference with the
work of others, and disrespect toward supervisors. It refers
to the August 16 incident, as follows:
The last example of negligence and carelessness oc-
curred on August 16, 1991 when after having punched
the timecard at 6:53 a.m., Suarez did not begin work
until 7:15 a.m. when the supervisor told him to get up
from the bench and begin to do his work.
Jorge Narvaez also signed that document attesting that it was
discussed with Suarez in his presence. (R. Exh. 2(a).) Suarez
denied that he had seen this document prior to the hearing.
The strong language used in this letter arouses curiosity,
particular when used in revisiting the past warnings for low
quality. For Jaile concedes that Suarez’ work performance
was never again questioned. In fact, Narvaez gave him a
very good evaluation in July 1991. Jaile was aware of this
appraisal and, thus, agreed that there was no problem with
the quality of his performance as of that date. Moreover,
Jaile strained in the attempt to give the assigned ground for
discharge a more persuasive gloss by linking the August 16
incident to unrelated offenses, by miscategorizing the former
as an additional ‘‘example of negligence and carelessness.’’
The General Counsel has presented evidence that others
received less severe punishment for ‘‘wasting time’’ either
by talking to coworkers, leaving their work stations, reading
a newspaper, repairing personal tools, and even sleeping.
(G.C. Exhs. 4(a), Carlos Santos; 4(b), Jose Trevino; 4(c) and
(d), Edwin Miranda; 4(e) and (f), Daniel Vila and Victor
Cruz; 4(g), Salvador Alvarez; 4(h), Able Santos; and 4(i),
Hector Rodriquez Pina.-) The General Counsel also points to
the fact that on August 16, others engaged in conversation
with Suarez were not disciplined. According to Narvaez, the
distinction was based on the fact that Suarez was viewed as
having provoked the conversation. Jaile, who made the deci-
sion, offered no testimony suggesting that he was aware that
this was the case.19 On cross-examination, he admitted that
he never even asked Narvaez to identify those that Suarez
was speaking to during the 15-minute interval. Ultimately, he
agreed with the General Counsel’s observation, that if others
were talking to Suarez, they should have been reprimanded.
Proscribed discrimination is fully substantiated in this re-
gard. The Respondent, within a few weeks prior to the dis-
charge, had singled out Suarez as among several suspected
instigators of the Union. At the time he and others interested
in organizational activity were invited to quit their employ-
ment. The discharge a few weeks later, against this back-
ground, merited an inference that it at least in part was
founded on unlawful considerations. See Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982). This was not countered by
proof demonstrating that Suarez would have been discharged
even had he not engaged in union activity. There is no evi-
dence that any oral warnings for talking or leaving the work
area had been committed to writing as was the Respondent’s
practice, and the General Counsel has offered a number of
instances where lesser discipline was meted out to employees
who had wasted time, even on multiple occasions. To make
matters worse the defense was presented through Jaile and
Narvaez, neither of whom, in this instance, impressed as
truthful witnesses. Accordingly, the Respondent has failed to
present a credible explanation that Suarez would have been
terminated had he not engaged in union activity, and it is
concluded that he was discharged in violation of Section
8(a)(3) and (1) of the Act.
2. The discharge of Jose Rios
Rios was employed by the Respondent for 10 years’ prior
to his discharge on September 19, 1991. During his tenure,
he worked as a mechanic on the first shift under the super-
vision of Miguel Ramos. The Respondent asserts that Rios
was terminated by reason of his noncompliance with the es-
tablished attendance policy.
Rios admitted to frequent absences, over the last 5 years’
averaging about 30 days per annum. He attributes this to a
chronic kidney condition and illness to a son. His discipli-
nary history for attendance dates back well before the advent
of unionization. Warnings that are in evidence begin in 1983,
followed by additional citations issued in 1986 and 1988. (R.
Exhs. 3(d), (e), and (f).) In fact, in 1988, prior to Jaile’s ar-
rival at the plant, Rios had been discharged for absenteeism.
He later was rehired.
A warning dated October 18, 1990, stated:
YOU HAVE A RECORD OF EXCESSIVE AND CONSECU-
TIVE ABSENCES. YOU ARE ABSENT TOO FREQUENTLY,
ON OCCASIONS YOU DO NOT ALWAYS CALL NOR DO
YOU BRING A MEDICAL CERTIFICATE. YOU SHOULD AL-
WAYS NOTIFY IN ADVANCE WHEN YOU ARE GOING TO
BE ABSENT. IN THE EVENT OF ILLNESS, YOU SHOULD
NOTIFY ON THE SAME DAY AND IF YOU REMAIN ILL,
YOU SHOULD NOTIFY THE COMPANY AGAIN.
882 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 R. Exh. 3(c).
21 R. Exh. 1(b).
22 R. Exh. 3(b).
23 G.C. Exh. 17. The button signified support of the Union. The
Union was not in the picture until May 30.
24 The complaint does not implicate Ramos in any unlawful con-
duct, and neither incident was the subject of litigation adequate to
support an 8(a)(1) finding or remedy.
25 The General Counsel contends that pretext is somehow sug-
gested by the Respondent’s failure to act at this time. I fail to see
the logic in this position. The record does not disclose that these ab-
sences offended the Respondent’s rules, a factor that distinguishes
them from those that led to the discharge. Thus, Jaile explained that
Rios was not terminated on those occasions because he brought in
a medical excuse. As shall be seen, the documented explanation for
the discharge, however, explains that the September absences were
different because on that occasion he violated the ‘‘call-in’’ policy.
26 R. Exh. 3(a). Rios initially testified that Jaile gave him a dis-
charge letter. However, he then suggested that his memory was frail,
but that it was he who requested a dismissal letter. He claims he
was told that they do not give dismissal letters. I reject his testimony
in this respect.
27 The fact that Rios in a quarterly evaluation for the period ending
July 1, 1991, was awarded an attendance rating of ‘‘very satisfac-
tory,’’ is in no way inconsistent with the facts on which the Re-
spondent allegedly acted in discharging him. G.C. Exh. 5(c). The rat-
ing merely reflects that Rios had no unexcused absences and did not
neglect to call during the period covered by this evaluation.
YOUR ABSENCES AFFECT PRODUCTION AND YOUR CO-
WORKERS. WE EXPECT YOUR COOPERATION OR WE
WILL BE OBLIGED TO TAKE OTHER MEASURES.20
Effective January 31, 1991, the requirement of advance
notification was codified in the Respondent’s attendance pol-
icy. The rule in question provided in material part as follows:
1. The person who needs to be absent or arrive late
one day, shall call at least one hour prior to the com-
mencement of of his work shift in order to notify the
reason for which he will not be coming to work.
2. The person who is absent without calling, shall
not be able to return to work until he speaks with the
Superintendent.21
The foregoing disciplinary action and publication of the
above policy preceded any union activity. By written warn-
ing dated May 28, 1991, Rios was informed as follows:
YOU HAVE A RECORD OF EXCESSIVE AND CONSECU-
TIVE ABSENCES. ON ONE OCCASION, WE HAD ALREADY
GIVEN YOU A WARNING FOR THIS SAME REASON.
THEREFORE, ON THIS OCCASION YOU ARE SUSPENDED
FROM THE JOB WITHOUT PAY FOR A PERIOD OF THREE
WORKING DAYS. THE NEXT TIME YOU WILL BE SUS-
PENDED PERMANENTLY.
WE EXPECT YOUR COOPERATION. THANK YOU.22
There is no evidence that Rios ever had actively engaged
in solicitation on behalf of the Union or that he was an early
advocate of organization. At best, his involvement was lim-
ited to the period after the May suspension. Thus, he did tes-
tify that he attended the Las Croabas union meeting in late
July, and that a few days later he openly avowed his support
by clipping a union button to his company I.D., which he
wore to work appended to his shirt collar.23
Rios points to two occasions when his supervisor com-
mented to him concerning the Union. He claims that during
the month of August, Supervisor Ramos pointed to the but-
ton and inquired as to what that was giving Rios. Rios re-
plied that it was giving him union representation and that if
Ramos wished to know what else, to contact and inquire of
a union representative. Rios adds that 2 or 3 days later,
Ramos walked by him and commented, in the presence of
Carlos Santos, that if the Union were to wage a strike or
stoppage, they would be hurt because they would be re-
placed, and the factory would continue working no matter
what.24
Though warned as to the possibility of discharge, in the
days that followed the May suspension, Rios was absent,
with a medical excuse, on the following days:
June 13 August 16
July 16 August 19
July 17 August 20
August 14 August 21
August 15 August 26
Although, Rios claims to have openly demonstrated union
allegiance during this time frame, he was not disciplined de-
spite this cluster of absenteeism.25
Jaile claims that he elected to discharge Rios on Septem-
ber 18. His uncontradicted testimony establishes that, without
calling in, Rios was absent on Friday, September 13; Mon-
day, September 16; Tuesday, September 17; and Wednesday,
September 18. Jaile adds that, during this period, he, without
success, attempted to contact Rios. In a memorandum con-
cerning his position, he refers to the prior discipline chron-
icled above, and then states:
EMPLOYEE JOSE E. RIOS . . . DID NOT REPORT TO
WORK ON ON THE FOLLOWING DAYS, 9/13/91, 9/16/91,
9/17/91, 9/18/91, NOR DID HE CALL. I WAS TRYING TO GET
IN TOUCH WITH HIM, WITHOUT SUCCESS.
ON SEPTEMBER 18, 1991, I HAD TO MAKE THE DECI-
SION OF DISMISSING JOSE E. RIOS . . . FROM EMPLOY-
MENT, AFTER WAITING FOUR (4) CONSECUTIVE DAYS
WITHOUT HAVING ANY INFORMATION AS TO HIS AB-
SENCES.26
I have serious concern for the credibility of Rios. But, tak-
ing account of the Respondent’s union animus, any inference
of discrimination would be weak even were one to accept
Rios’ uncorroborated testimony that he openly displayed
union sentiment during this time frame. Nor is the General
Counsel’s caused strengthened by the possibility that the Re-
spondent might have acted against Rios to eliminate a ‘‘yes’’
vote. In contrast with any such speculation, the reason as-
signed for the termination is virtually unchallenged. No evi-
denced was adduced that Rios called in at any time during
his September absences.27 The Respondent had every right to
demand strict compliance with its policy in this regard, par-
ticularly in the case of an individual who had been warned
directly and specifically as to this precise requirement. In my
opinion, the Respondent has demonstrated beyond question
that Rios would have been discharged even if he had not en-
883CARIBE STAPLE CO.
28 Narvaez denied questioning Ramos in this regard. However,
there is no allegation of coercive interrogation, and, it is not beyond
possibility that evidence in the General Counsel’s possession would
not support a violation under the strictures of Rossmore House, 269
NLRB 1176 (1984), enfd. sub nom. Hotel & Restaurant Employees
Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985).
29 I shall dismiss the allegation that Narvaez unlawfully created the
impression of surveillance. In doing so, I note that, according to
Vila’s account, Narvaez first sought to verify Vila’s reported in-
volvement, and then specifically informed Vila that his source was
an informer. I am convinced that Vila had no reasonable basis for
assuming that his past union activity had been observed.
gaged in union activity, and accordingly, the 8(a)(3) and (1)
allegations in his case shall be dismissed.
3. Other interference, restraint, and coercion
a. By Jorge Narvaez
The complaint alleges that the Respondent violated Section
8(a)(1) when in April 1991, Narvaez created the impression
that union activity was subject to surveillance and threatened
that union supporters would be discharged. Neftali Rosa, a
machinist on the second shift, averred that in April 1991,
when Suarez was transferred to the second shift, Narvaez
told him and Alvin Rodriquez, ‘‘not to talk with Juanito
Suarez . . . [b]ecause he was marked because of the
Union.’’ According to Rosa, Suarez was nearby. Suarez was
not examined as to the incident. Rodriquez was unavailable
for reasons that would not warrant an inference adverse to
Rosa’s credibility. Nevertheless, the likelihood that Narvaez
would have made such a comment at that time is diminished
by the fact that no union was involved until May 30. In this
instance, I credit Narvaez whose denial is enhanced by the
improbable, uncorroborated testimony of Rosa. The allega-
tions are dismissed as unsubstantiated by credible evidence.
It is further alleged that in or about June or July 1991,
Narvaez instructed an employee not to engage in union ac-
tivities. In this connection, Edgardo Ramos, a tool and die
maker, testified that, after the initial union meeting at Vila’s
home, he was approached by Narvaez, who inquired as to
whether he knew anything about the Union.28 Ramos denied
knowledge. More importantly, Ramos testified that at a latter
time, Narvaez approached him at his work station and told
him, ‘‘not to get involved in this thing with the Union.’’
Ramos also testified in substantiation of an allegation that
about June 1991, Narvaez created an impression among its
employees that Respondent was engaging in surveillance of
union activity. In this instance, he related that Narvaez came
to his work station, stating that ‘‘it was already known who
the Union organizers were,’’ adding that they were from the
toolroom.
Narvaez denied instructing Ramos not to get involved with
the Union or stating that he knew the organizers were from
the toolroom. On balance, I was inclined to believe Ramos.
There was nothing in his testimony that aroused doubt as to
his veracity. In this light, Ramos’ status as an incumbent em-
ployee makes it more difficult to assume that he would have
fabricated the illegalities he imputes to his immediate supe-
rior. On Ramos’ credited testimony, I find that Respondent
violated Section 8(a)(1) in June or July 1991 when Narvaez
instructed him to refrain from union activity and created the
impression that union activity was subject to surveillance.
Narvaez was implicated in further misconduct by em-
ployee Vila. In this connection, the complaint alleges that on
or about August 1, 1991, Narvaez created an impression that
union activity was under surveillance, stated that such activ-
ity was being watched, and interrogated employees and
threatened them with discharge.
Vila testified that on a Thursday during this time frame,
also a payday, Narvaez delivered his paycheck, stating that
he had heard that Vila was one of the union leaders, inquir-
ing as to whether that was true. Vila claims that he stated
that he would answer if Narvaez would identify the individ-
ual that made this report. According to Vila, Narvaez de-
clined, but went on to warn that he was being watched, and
that all the union leaders, including Vila would be dismissed.
Narvaez denied that he ever made such comments. I believed
Vila, an incumbent employee, particularly, in light of
Narvaez’ professed inability to recall details of the highly un-
usual and significant meeting called by Jaile the very next
day, August 2, with three of his subordinates, as well as in-
consistencies in his testimony pertaining to when he learned
that union activity was in progress. Accordingly, I find that
the Respondent violated Section 8(a)(1) when Narvaez in-
formed Vila that he would be watched because of his known
affiliation with the Union, and that he and other union lead-
ers would be discharged.29
b. By Jose Urena
The complaint alleges that during the preelection period,
Jose Urena, about late September or early October 1991, in-
formed its employees that they could vote in the election as
long as they voted against the Union. Urena is referred to in
the record as the general manager of the plant. He is
headquartered in Chicago, and his duties include responsibil-
ity for overseeing the Respondent’s Caribbean operations.
At the time, Melvin Rodriquez was a temporary quality as-
surance inspector and some question existed as to his voting
eligibility. He testified that, several weeks before the elec-
tion, he asked Urena if he would be permitted to vote, and
the latter allegedly, replied, jokingly, ‘‘if it was ‘no,’ yes.’’’
Additionally, in mid-October 1991, it is alleged that Re-
spondent, by Urena, at the plant, created the impression that
union activity was under surveillance and threatened to chal-
lenge ballots on the basis of union support. Here again, Rod-
riquez was the General Counsel’s sole witness. He testified
that, after his first conversation with Urena, and only a few
days prior to the scheduled election, the latter called him to
his office and told him: ‘‘We know that you’re with a union,
and we recommend you not to vote, because, if you do so,
we’re going to challenge your vote.’’
Urena did not appear as a witness. Considering that both
conversations related to the eligibility issue, and that the
threat to challenge Rodriguez was made with reference to his
status as a union supporter, the strain of humor ended, and
it is entirely likely that Urena’s overall remarks would have
been taken seriously, tending to impede the employee’s par-
ticipation in the Board election. The Respondent thereby vio-
lated Section 8(a)(1) of the Act.
884 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
30 In this sector, all dates refer to 1992, unless otherwise indicated.
31 The Respondent’s brief includes a representation that ‘‘Garcia
testified that none of the comments attributed to him took place.
. . . He denied all allegations of . . . coercion made by . . .
Monet.’’ Having examined and reexamined Garcia’s testimony, I
have found no support for this unfortunate commentary on the evi-
dence.
32 G.C. Exh. 12(a). It appears that a similar message was orally
communicated on July 8, contemporaneous with the walkout. Thus,
Juan Cortez, a union representative testified without contradiction
that he arrived at the plant at 9 p.m., on July 8, and advised the
Company that the second-shift employees were willing to return to
work and that the Respondent should allow the third shift to report.
33 G.C. Exhs. 12(b) and (d).
34 G.C. Exh. 12(e).
C. The Postelection Issues
1. Interference, restraint, and coercion
a. By Jorge Narvaez
The complaint alleges that, during March or April 1992,30
Narvaez threatened employees with discharge because of
their union activity. Edgardo Ramos, a tool and die maker,
supervised by Narvaez, testified that in this time period:
Narvaez would always be saying, that stuff with the
union, that we were being very annoying with this
Union thing. And that if we continued to annoy and
disturb with this union thing, that he was going to fire
us all.
Narvaez denied the threat. As previously indicated, the testi-
mony of this incumbent employee is preferred over that of
his supervisor. Although Ramos suggested that Narvaez
might have made these remarks in reaction to machinery
breakdowns attributed by him to sabotage, the broadly stated
threat was indefensible, and violated Section 8(a)(1) of the
Act.
b. By Ignacio Garcia
The complaint in this respect is based on two incidents.
First it alleged that the Respondent violated Section 8(a)(1)
on or about April 25, when Garcia allegedly requested that
an employee observe and report back concerning the union
activity of coworkers, while creating an impression that
union activity was under surveillance.
Richie Vazquez, a second-shift mechanic, testified that in
April, Garcia inquired as to whether he was going to attend
a union meeting concerning negotiations scheduled for that
day. Vazquez responded in the negative, whereupon Garcia
asked if he would attend and report back on what transpired.
Vazquez refused, but Garcia stated that was okay, for he
would get someone else. Garcia denied each and every state-
ment attributed to him by Vazquez. I consider it highly
doubtful that Vazquez, as an incumbent employee, would
have concocted the episode. He was regarded as the more
believable witness. I credit him and find the Respondent vio-
lated Section 8(a)(1) when in April 1992, Garcia requested
that he observe and report back on union activity, and, in
doing so, created the impression that future union activity
would be subject to surveillance.
The second allegation relates that the Respondent violated
Section 8(a)(1) when in early July 1992, Garcia threatened
plant closure. To substantiate this allegation, the General
Counsel offered the testimony of Jose Monet, whose dis-
charge is the subject of an 8(a)(3) allegation discussed
below. Monet testified that several weeks prior to his termi-
nation, in early July, he was called to Garcia’s office and
was told:
[B]ecause we had brought the Union to the Company,
that they were going to close the Company because
they did not agree with there being a union in the Com-
pany.
Monet’s testimony was uncontradicted.31 However, he was
a totally unimpressive witness, whose shortcomings, as shall
be seen below, included a bent toward fabrication. My dis-
trust of Monet is sufficiently deep to make it more likely that
Garcia was not examined out of oversight than that the inci-
dent described by Monet actually took place. In this light, the
Respondent is entitled to benefit of the doubt, and I find that
it did not violate Section 8(a)(1) in this respect.
2. The alleged discrimination
a. The alleged lockout/suspension
On Wednesday, July 8, 1992, most employees on the sec-
ond shift walked off the job after Richie Vazquez, a member
of the Union’s negotiating committee, was sent home for dis-
ciplinary reasons. On July 9, the Union informed the Re-
spondent in writing that the employees were available to
work immediately and offered to return unconditionally.32
For a number of reasons, the Respondent closed the plant,
thus, preventing scheduled third shift from working. In fact,
work did not resume until the morning of Monday, July 13,
when the plant was reopened.33 The complaint does not chal-
lenge the legitimacy of the discipline meted out to Vazquez.
Nor does it question the shutdown between July 8 and 13.
Instead, it alleges that the Respondent violated Sec. 8(a)(3)
and (1) when on July 13, 1992, it ‘‘imposed a three-day sus-
pension from work to all of its second shift employees.’’ In
this connection, on July 14, the Respondent, in writing, in-
formed each of the 15 second-shift employees as follows:
You have been suspended without any pay during the
dates of July 13, 14 and 15, 1992, for your participation
in the illegal abandonment of your work on July 8,
1992. We want this to be quite clear for you that the
enterprise is not willing to allow this type of attitude
and should this occur again you will be subject to im-
mediate discharge.34
By letter of July 16, the Plant Manager Urena wrote Union
Representative Juan Eliza, clarifying that the suspensions
were based on the following:
The bulletin that was distributed to employees clearly
states that the Company would not allow similar wild
cat strikes, and that any employee participating in an il-
legal wild cat strike will be subject to disciplinary ac-
tion up to and including termination.
. . . .
885CARIBE STAPLE CO.
35 According to Monet, he was alerted that this would occur on
July 28 by his immediate supervisor, Ramos. The latter allegedly re-
ported that Garcia was taking this step because Monet had left his
work area dirty and refused to obey an order. Monet testified that
Ramos also stated that Garcia had listed him as a witness, but that
he told Garcia to remove his name because Monet had never refused
an instruction from Ramos. Although Ramos did not testify, I did
not believe Monet even as to this tangential matter.
36 G.C. Exh. 10(a) is an informal report typed on plain company
stationery, ostensibly prepared and signed by Garcia and dated July
28. Garcia insists that this document was given to Monet at this
meeting. It cited his failure to comply with Ramos’ instruction that
he remove the glue spillage from the machines and floors in his
area, and to comply with his own instruction that Monet do so.
Monet denied that this was the document presented to him at that
time. Instead, he insists that the document in question was on the
Company’s standard disciplinary warning form. See, e.g., G.C. Exh.
4(h). He claims that the warning that he received on July 29 stated
that he did not do his work properly, would not take orders, failed
to work properly and to complete his work, and that he required
constant supervision throughout his shift. He claims that his copy of
this document was lost before he had an opportunity to read whether
it called for a disciplinary warning or discharge. To his knowledge,
prior to the hearing, no one from management was ever informed
that he did not possess the document. The Respondent first submit-
Continued
I mentioned to you that the work stoppage carried out
by the second shift employees was completely illegal,
and that the company had the right to apply disciplinary
measures to those employees.
The complaint alleges that the Respondent, by implementing
the suspensions, violated Section 8(a)(3) and (1) of the Act.
The right to strike is protected by Sections 7 and 13 of
the Act. None of the disciplined participants were linked on
a personal basis with any form of misconduct. There is no
evidence whatever that this single, spontaneous walkout was
in any sense unprotected. Thus, the Respondent, having
failed to demonstrate reasonable cause to believe that any
employee listed below had engaged in misconduct of a dis-
qualifying nature, the suspension merely for participating in
a strike constituted an act of discrimination proscribed by
Section 8(a)(1) of the Act:
Carlos Baeza David Casillas
Randolph J. Feliciano Luis M. De Jesus Cepeda
Safin C. Figuero Michael Garcia
Gilberto Gonzalez Rubin Hernanadez
Jose E. Laureano Celestino Montanez
Efrain Pagan Eric Sota
Hector Western Miguel A. Rivera
Angel M. Rosa
b. The Monet discharge and disciplinary warning
(1) Background
Jose Monet was discharged on July 30, 1992. At the time,
he was a member of the Union’s negotiating committee. The
Respondent contends that he was discharged in consequence
of a confrontation on July 29 in which he physically struck
Supervisor Ignacio Garcia. In support of the 8(a)(3) allega-
tion, the General Counsel, relying entirely on Monet’s testi-
mony, insists that there was no such assault and Monet was
terminated on pretextual grounds.
The General Counsel also argues that a report of an oral
warning issued by Garcia to Monet at the time of the alleged
assault violated Section 8(a)(3) and (1). In this connection,
it appears that Monet was responsible for maintenance of
five machines. He was excused from work on July 21, 22,
and 23, due to his participation in negotiations. Because a
holiday weekend intervened, he did not return to work until
Monday, July 27. He insists that, on July 20, when he left
work, his overall work area was clean, but that when he re-
turned to work on July 27 he found the conditions to be ‘‘de-
plorable,’’ with his work area very dirty. He reported this to
Miguel Ramos, his supervisor. Ramos instructed him to clean
glue that had spilled in his area. Monet states that he com-
plied.
About 2 p.m., on July 27, according to Monet, he was ap-
proached by Garcia, the production supervisor in this area.
As I understand Monet’s testimony, he had cleaned the area,
but not the machines. Garcia instructed Monet to do so.
Monet declined, observing that he had left the area clean be-
fore his absence to participate in bargaining. Garcia detoured
to a meeting in the office, but then returned at shift’s close,
and started scrapping the machinery himself. In the process,
dirt from the equipment fell to the floor already cleaned by
Monet. According to Monet, as he was leaving, Garcia told
him to remove the dirt from the floor as that was his respon-
sibility under company regulations that had to be obeyed.
Monet described his response, as follows:
‘‘I told him that that was not my obligation, that I
was a mechanic and not a janitor.’’ That there were
other people who were supposed to do the cleaning job.
That I had already cleaned my machinery before I had
left, and that I again turned it in clean, and that if he
had thrown, if he had dirtied the area, that he would
need to find somebody to clean it; that that person was
not me.
I told Mr. Garcia that I was aware, as a mechanic,
that anytime I fixed equipment, or a piece of machin-
ery, whatever scrap fell out of that, it was my respon-
sibility to pick it up and clean it.
Garcia then went to the office.
Monet admits that as a mechanic his duties included clean-
up of the machinery. However, in this instance, he claims
that the dirt was so ‘‘drastic’’ that all of it could not be re-
moved prior to the end of his shift.
(2) The July 29 disciplinary meeting; Monet’s account
There is no question that on July 29, Garcia attempted to
deliver a disciplinary report to Monet.35 The testimony, how-
ever, is in conflict as to the circumstances under which this
occurred.
Monet claims that on July 29, Garcia, at about 2 p.m.,
called him to his office. Monet told Garcia that he would not
discuss the issue with him, as Ramos, not Garcia, was his
immediate supervisor, and that if it were necessary to clear
up the misunderstanding, it would be through Frank Jaile.
Later, Monet was called to Jaile’s office. He was accom-
panied by a coworker, Richard Rivera, whom he asked to be
a witness. Carlos Maldonado, the second-shift supervisor,
Daniel Ortiz, and Garcia were present. Garcia gave him a
document36 and asked Monet if he agreed with it. Monet re-
886 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ted a copy of G.C. Exh. 10(a) to the General Counsel on September
16, 1992. Except in the highly unlikely event that the Company was
aware of Monet’s unfortunate separation from the document he
claimed to have received, it clearly would not risk substituting a dif-
ferent document. I find that Monet was given G.C. Exh. 10(a) at that
time.
37 This is taken as a reference to the insubordinate behavior de-
picted in G.C. Exh. 10(a).
38 G.C. Exh. 10(a).
39 Garcia testified that a copy was also given to Monet’s witness,
Rivera.
40 Jaile testified that shortly after the confrontation he learned from
Garcia and Narvaez that as Garcia was delivering the warning to
Monet, the latter grew upset and struck Garcia on the right shoulder.
He called Garcia to the office where he observed that Garcia’s
shoulder was still red.
41 Narvaez testified initially that Garcia was hit ‘‘right on the
jaw,’’ but immediately thereafter, without prompting, testified that
the blow ‘‘caught him in the shoulder.’’ It was my impression that
the former was simply an unthinking slip, prompted by the fact that
the witness seemed to be concentrating on the nature of the swing.
42 Criminal charges were filed against Monet by Garcia. They
were based on the July 30 assault. There was no reference to the
July 29 incident. Also, Jaile called the police in connection with July
30, and did not mention what had reportedly occurred the day be-
fore. I see nothing unusual in this omission, considering the fact that
prior incidents were overwhelmed by what took place on the latter
date. In passing, it is noted that, on the date of trial, Garcia withdrew
the charges. G.C. Exh. 15. According to Monet, Garcia told the
judge that he had worked for many years with Monet and that there
never had been a problem and that this incident was spawned ‘‘by
pressures that he was under from the office, and from some orders
that he was receiving.’’
jected the report as untrue. Jaile arrived as they were argu-
ing. He asked to speak to Garcia alone, then, came out and
told Monet to leave, but to report the next day as usual, ex-
plaining that ‘‘there was something of a confusion, and that
it had to be fixed.’’ Monet’s account acknowledges that he
argued with Garcia concerning the warning, but he denies
‘‘any aggression’’ toward Garcia on July 29.
On July 30, Monet returned to work. At 8:30 a.m., he was
told to report to Jaile’s office. Rivera again accompanied
him. Garcia and Narvaez were also present. According to
Monet, Jaile informed Monet that based on Garcia’s report,37
he had not been able to ‘‘rest easily’’ with the knowledge
that it was necessary to dismiss him. Monet agreed stating
that there had been an ‘‘injustice.’’ Jaile allegedly stated that
‘‘due to the report written by Mr. Ignacio Garcia . . . the
orders were coming from Chicago, and that it was not in his
hands.’’ Jaile attempted to calm him down, advising that ‘‘if
he wanted to get work in another company, that he would
give me good references . . . [a]nd there would be no prob-
lems.’’ It is the sense of Monet’s testimony that he was dis-
charged at this point.
If Monet is to be believed, it was at this point that there
was the first physical contact between himself and Garcia.
He claims that after Jaile’s remarks, he got up to shake
hands with Garcia, and to say ‘‘that I was congratulating him
for his decision to leave my family without their bread on
the table.’’ Monet testified that Garcia squeezed his hand and
pulled his hand forward, and he responded by pulling Garcia
back toward himself. Narvaez then jumped in and grabbed
Monet by the neck. Rivera pulled Garcia back, and Monet
wrested himself free, pleading that he needed air badly be-
cause of his heart condition and blood pressure. He left the
premises on instruction of a security officer. Monet also de-
nies that he hit Garcia on this occasion.
Monet denies that he was discharged because of his ag-
gressive conduct toward a supervisor. He insists that the rea-
son set forth in the July 29 warning and that given by Jaile
for the discharge were one and the same. In fact, he insists
that there was no physical contact with Garcia until after the
discharge.
(3) The defense
Garcia avers that during the July 29 meeting with Monet,
in the presence of employee Rivera, he gave Monet the
warning he had prepared the previous day.38 He informed
Monet that it was a verbal warning that would be placed in
his file.39 He related that as he attempted to read the docu-
ment to Monet, the latter became unruly, shouting obsceni-
ties at Garcia and took a swing at Garcia, striking him on
the right shoulder. A red mark appeared on Garcia’s shoul-
der, which remained visible when he reported the incident to
Jaile about 5 minutes latter.40
Narvaez confirmed that he was in the area, and noticed
that Garcia had given the warning to Monet, who was over-
heard arguing with Garcia. As Monet continued to protest,
according to Narvaez, both were standing face-to-face, when
Monet ‘‘swung out [right to left across his body with the
back of the left hand] on him [Garcia] . . . and hit him.’’41
Narvaez testified that he was later shown the red mark that
had been left on Garcia’s shoulder.
Jaile met with Garcia and Monet separately on July 29. He
avers that he informed Monet in the presence of Rivera, that
he had been giving blood, and was not feeling well, and
therefore was sending Monet home. Monet was told that
Jaile would make up his mind as to his decision and advise
him the next day.
All agree that the next day, with employee Rivera again
serving as Monet’s witness, Jaile informed Monet that he
was terminated. Contrary to Monet, Jaile testified that he told
Monet he would be discharged for ‘‘striking a supervisor.’’
Narvaez confirmed that this was the specifically assigned
ground, and that Monet responded to it by denying that he
hit Garcia. Monet, according to Garcia, continued calling him
names, eventually stating that he be given all that he was
owed and that the matter be forgotten. Garcia, with corrobo-
ration from Narvaez and Jaile, testified that Monet then ap-
proached as he was seated, extending his hand, and as Garcia
extended his, Monet grabbed it swinging the other arm and
striking Garcia at the bridge of the nose, breaking his glass-
es, and leaving the area above Garcia’s eye lacerated and
bleeding. As others attempt to pull them apart, Monet tried
to kick Garcia with his knee.42
(4) Concluding findings
The complaint alleges that the warning of July 29 was
issued in violation of Section 8(a)(3) and (1) of the Act. It
is apparent from Monet’s own testimony that he refused to
clean portions of his area that were left in good order prior
to his absence to attend negotiations. Garcia’s instruction that
Monet correct the situation and then clean the floor seemed
perfectly logical and addressed routinely to the spectrum of
887CARIBE STAPLE CO.
43 R. Exh. 6(b).
44 In this connection, it is entirely possible that Monet’s false testi-
mony was inspired by an incorrect reporting of the reason given by
the employer for the discharge in an unemployment ruling. Thus, on
August 2, a hearing officer issued a determination disqualifying
Monet from benefits because he was discharged for failure to follow
instructions. There was no reference to an assault. G.C. Exh. 14. On
appeal, on October 30, this view of the facts was revised to reflect
that Monet was discharged ‘‘because he assaulted a supervisor.’’ R.
Exh. 6(b). I think it entirely likely that the original determination
was founded on a mistaken iteration of the ground for discharge, and
that Monet, who denied that he assaulted Garcia on July 29, seized
on this error, as a means of substantiating his position that there was
no assault and to further the view that the Company used this as a
belated, pretextual afterthought.
45 Consistent therewith, the General Counsel’s contention that less-
er discipline was meted out for failure to follow supervisory direc-
tives is of no consequence. G.C. Exhs. 18(b) through (f).
46 G.C. Exh. 11(f).
47 G.C. Exh. 11(a).
48 G.C. Exh. 11(b).
49 G.C. Exh. 11(d).
50 In contrast with Gomez, Monet states that Gomez was involved
with the Union, having both attended union meetings and signed a
card.
Monet’s job responsibilities. On the other hand, Monet’s tes-
timony that he, as a maintenance mechanic, was not obli-
gated to obey directives from production supervisors not only
was unconfirmed from a single credible source, but struck as
illogical. On balance, I find that there is no reason to assume
on this record, that Garcia had the obligation to use other
means to correct the situation. I find that the warning was
grounded on legitimate cause and would have been issued
even if Monet had not engaged in union activity.
I reach the same result with respect to the discharge.
Monet was an incredible witness, whose dubious testimony
was left to stand uncorroborated by the General Counsel’s
unexplained failure to call Monet’s chosen witness to the
critical events, Richard Rivera. Beyond that, his demeanor
was unconvincing, and the content of his testimony seemed
unlikely and deliberately tailored to mitigate and deflect mis-
conduct that he knew to be serious and indefensible. I reject
Monet’s testimony were at odds with that of the Respond-
ent’s witnesses.
Several objective factors suggest that he was guilty of the
July 29 assault and that he was told that this was the reason
for his termination. Undisputed evidence reveals that, in an
unemployment compensation hearing, Rivera testified that
Monet had touched the right shoulder of Garcia on that occa-
sion. Monet admitted that this testimony prompted the award
which denied him unemployment benefits.43 In addition, on
August 17, Monet submitted the first of two sworn prehear-
ing affidavits to the General Counsel. According to his testi-
mony, he did not know in that time frame that he had been
discharged because of any assault. Yet, he took occasion in
these statements to set forth past examples of lenience shown
by the Respondent toward employees caught fighting. More-
over, according to representation by the General Counsel,
both affidavits were submitted before the General Counsel
was alerted to the Respondent’s position that the altercation
was the assigned cause of discharge. I am convinced that
Monet included these defensive assertions on his own be-
cause, at all times since July 30, he was well aware of the
assigned ground for discharge.44
I credit the Respondent’s witnesses and find that Monet
was discharged on July 30, because on July 29 he assaulted
Supervisor Garcia as the latter issued a disciplinary warn-
ing.45
The General Counsel contests the cause assigned as
pretextual. The alleged instances of disparate treatment were
unimpressive. In the main, this view of the disciplinary his-
tory is left to turn on a proffer of facial summaries appearing
in the disciplinary reports relied on by the General Counsel
in this case, as well as testimonial accounts. The documenta-
tion is inconclusive. It merely offers a superficial view of the
underlying facts, with such factors as provocation and miti-
gation left unexplored. In one incident a mechanic foreman
threatened another mechanic with a knife and invited him to
fight.46 According to Jaile, he suspended the mechanic fore-
man. In another incident one employee hit another, and was
merely suspended.47 In another, one employee slapped an-
other, received a verbal warning, and threat of suspension if
the incident were repeated.48 On another occasion, two su-
pervisors had a fist fight which produced a 10-day suspen-
sion for each.49 Finally, there is General Counsel’s Exhibit
18(a) which suggests that an employee had exhibited a ‘‘vio-
lent attitude’’ toward a supervisor. Aside from the absence
of definition as to what this meant, the disciplinary event
took place prior to Jaile’s employment. Moreover, the em-
ployee’s misconduct was directed toward a general manager
whose judgment on discipline, a mere warning, acknowl-
edged a personal friendship since childhood with the em-
ployee involved.
In my opinion, the warning notices alone offer no founda-
tion for any fair comparison with the conduct for which
Monet was discharged. Moreover, the Respondent effectively
counters the General Counsel’s presentation in this regard
through testimony of Narvaez that some 2 to 3 years earlier
Juan Santana, was discharged for assaulting him over a dis-
pute concerning Santana’s production of substandard parts.
Beyond that the General Counsel adduced testimony from
Manuel Gomez, a mechanic who revealed that in July 1992,
during a work-related argument with Supervisor Garcia, he
placed his hand on Garcia’s shoulder. Garcia claimed that
Gomez had pushed him. Garcia told Gomez to accompany
him to the office. They latter refused, pointing out that Gar-
cia was not his supervisor. Later, Jaile called him to the of-
fice, got his side of the story, and then went off to discuss
the issue with Garcia. When he returned, Jaile told him that
‘‘everything was alright that I could return to work.’’ Gomez
was not disciplined in any way. Although Gomez testified
that he believed that his nonsupport of the Union ‘‘saved
him,’’50 he later accepted that it was possible that he was
spared because his version of the incident, which was in fact
witnessed by his supervisor, Miguel Ramos, happened to
have been believed by Jaile.
These incidents do not bear sufficient kinship to the as-
sault of a supervisor during a disciplinary interview to arouse
doubt that misconduct of this nature constitutes valid cause
for discharge. In evaluating evidence of disparate treatment,
I have always acted on firm appreciation that disciplinary
patterns often are reflective of personal judgment, which
does not always come out the same—even in a facially iden-
tical context—whether exercised by a different, or even the
same, individual. Where an inherently sensible ground for
888 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
51 G.C. Exhs. 101 (a) and (b).
52 G.C. Exh. 101(c).
53 G.C. Exhs. 101(g) and (h).
54 In this sector of the decision, all dates refer to 1992, unless oth-
erwise indicated.
55 At p. 48 of the General Counsel’s posthearing brief, the latter
withdrew an allegation that the Respondent violated Sec. 8(a)(5) and
(1) by imposing a limitation upon employee participation in pro-
tected activity.
56 R. Exh. 100(b).
57 G.C. Exh. 103(a).
58 G.C. Exh. 103(b).
59 G.C. Exh. 103(c).
discharge is proven, yet challenged on this ground, it is es-
sential that management’s regulation of misconduct in the
past be demonstrated by evidence showing an inconsistency
so unmistakable as to warrant a reasonable conclusion that
the very offense perpetrated by the dischargee had been con-
doned knowingly where union activity was absent. This
standard was not met here and I am persuaded that Monet,
even had he not engaged in any union activity, would have
been terminated for the legitimate reason assigned by the Re-
spondent. Accordingly, I shall dismiss the 8(a)(3) and (1) al-
legations in his case.
D. The Alleged Refusal to Bargain
1. Preliminary statement
The Union’s certification on October 29, 1991, was
uncontested. Negotiations opened with Union’s submission
by mail of an initial proposal on November 25, 1991.51 Re-
ceipt was acknowledged on December 17, 1991,52 and the
Company presented a counterproposal by letter of January
29, 1992.53 The first bargaining session took place on March
17, 1992.54 As of the date of the hearing, negotiations had
not produced a settlement.
The complaint alleges that the Respondent violated Section
8(a)(5) and (1) of the Act by a variety of specified actions
during the course of negotiations. In addition, it is alleged
that the Respondent was guilty of overall subjective bad faith
as evidenced by various actions taken in connection with re-
spect to the negotiations.
2. The conduct
a. Attorney Nelson’s letter of August 14 and
related conduct
(1) Preliminary statement
The complaint alleges that the Respondent violated Section
8(a)(5) and (1) when, on August 14, Attorney Nelson condi-
tioned further bargaining on the Union’s agreement to its de-
mands in several particularized areas, each of which is dis-
cussed individually below.55
The Respondent’s bargaining team was headed by Richard
Nelson an attorney based in Chicago, Illinois. The Union’s
chief spokesperson was its president, Juan Eliza.
By way of background, it is noted that, minutes of the July
23 bargaining session prepared on behalf of the Respondent,
include the following:
The Union was informed that the Company would no-
tify it of a date to resume further negotiations. How-
ever, prior to scheduling any date, the Company would
send proposed guidelines and ground rules for further
collective bargaining negotiations.56
By letter of August 10, the Union sought a resumption, de-
claring availability at any time in the near future after August
17.57
On August 14, Attorney Nelson replied:
We will make ourselves available in September, 1992,
to continue further collective bargaining negotiations.
However, before we schedule a final date, we are re-
questing your written confirmation that the following
guidelines and ground rules will be abided by:58
As shall be seen, these ‘‘guidelines and ground rules’’ in-
cluded demands with respect to both mandatory and non-
mandatory subjects. As a general proposition, it is a per se
violation of Section 8(a)(5) for any party to hold future nego-
tiations hostage to unilaterally imposed demands, and, absent
impasse, such a condition is illegal even with respect to
issues properly classifiable as mandatory subjects of collec-
tive bargaining.
Before considering the specific allegations, as a prelimi-
nary matter, I reject the Respondent’s contention that the Au-
gust 14 letter did not condition the scheduling of a further
meeting on the Union’s capitulation to these demands. The
claim is founded on a remarkable piece of sworn testimony
by Attorney Nelson, who seemed to be debating his own
draftsmanship, in relating that:
I subsequently received a letter from . . . the Union’s
attorney . . . and I . . . prepared a written response
. . . explaining the Company’s position and that we
were not conditioning bargaining on . . . any of these
items . . . . Only, we were requesting the Union to
. . . provide a response . . . whether they were willing
to agree to it or not.
The August 14 letter bears Nelson’s signature and he surely
understood his own language. The strategy was clearly
termed and is susceptible to no other interpretation. It was
written in response to the Union’s August 10 request for a
meeting date, and conveyed unmistakably that the Company
would refuse to oblige at any time prior to ‘‘written con-
firmation’’ by the Union that it would abide by each and
every demand set forth there. Moreover, the use of ultimatum
in this form by Nelson was not unprecedented, first having
become manifested at the July 22 bargaining session when
he threatened to walk if the Union persisted in filing unfair
labor practice charges.
In sum, Nelson’s attempt to put a different gloss on the
August 14 letter through sworn testimony is unacceptable to
the point of embarrassment. Moreover, the incident is not
mitigated by the fact that after intervention of the Union’s
attorney,59 he wrote the Union on September 2, denying that
the Company ‘‘insisted on . . . [the conditions] to impasse.’’
Having been educated as to Statutory demands, the followup
was nothing more than a quick-step attempt to alter the ad-
889CARIBE STAPLE CO.
60 G.C. Exh. 103(e). Cf. Inter-Polymer Industries, 196 NLRB 729,
762 (1979), where an employer pursued such demands merely
through ‘‘oral persuasion.’’
61 The Respondent cites Stanley Bldg. Specialties Co., 166 NLRB
984 (1967), and I.T.T. Corp., 159 NLRB 1757 (1966), as standing
for the proposition that ‘‘in order to constitute a violation of the Act,
the condition must have delayed negotiations or caused an impasse.’’
Neither adopts that view. Stanley Building did not reach the issue
because the employer merely deferred to tactics of persuasion that
did not impede the negotiations. I.T.T. involved a challenge to an
employer’s right to refuse to agree to advance the date of a sched-
uled meeting.
62 G.C. Exh. 102(i).
63 R. Exh. 100(a).
64 The General Counsel’s claim that the Respondent seized on this
issue as part of a stratagem to disrupt bargaining is well within rea-
son. After intervention of the Union’s attorney, the parties recon-
vened on September 16, 17, and 18. Previously, Ignacio Garcia,
Monet’s adversary, had not been a member of the Employer’s estab-
lished negotiating team. The Company elected to add him to its team
on that date ostensibly to demonstrate that ‘‘the supervisors were not
going to any longer be intimidated by employees’ actions.’’ Monet
did not attend on September 16 and 17. Not to be outdone, however,
the Union invited Monet to attend the September 18 session. The
Respondent used the opportunity once more to demand his exclu-
sion. When the Union refused, the Respondent’s negotiators walked
out.
verse legal implications of his August 14 letter.60 Obviously,
the Respondent is not excused from the August 14 stratagem
on the fortuitous grounds that the Union elected to resist,
rather than yield, in the face of the threat to delay or curtail
bargaining.61
(2) Restrictions on size of the Union’s negotiating
committee
In his letter of August 14, Attorney Nelson conditioned fu-
ture negotiations on the Union’s agreement to the following:
1. The Union negotiating team will consist of no
more than four persons (equal to the number of rep-
resentatives of Caribe Staple), of your own choosing.
However, your selected representatives shall not include
Jesus Monet, who was terminated for physically as-
saulting Caribe Staple Supervisor Ignatio Garcia [sic]
on two occasions. For Caribe Staple to negotiate with
Jesus Monet on the Union’s negotiating committee will
be disruptive to the collective bargaining process.
This was an attempt to enforce a demand made earlier by
the Respondent. Thus, by letter of June 29, Attorney Nelson,
in declaring that bargaining would be resumed on July 20,
stated as follows:
The first topic we intend to negotiate with you is the
number of members on your negotiating committee.
Bringing in eight to ten employees who participate to
no extent in the negotiations is unmanageable and dis-
ruptive to the collective bargaining process.62
This was the first order of business at the ensuing meeting
on July 21, when the Respondent insisted that the union
committee be reduced from 10 to 4 persons. The Company
argued that ‘‘side comments and sarcastic comments’’ attrib-
uted to those not involved in the negotiations is disruptive
to good-faith negotiations. The Union rejected this position,
explaining that the employees on the committee represented
the various shifts and distinct classifications. The Company
asked that it reconsider, and then discussion proceeded to
other areas.63 In addition, the negotiations continued on that
date, and thereafter, on July 22 and 23 without limitation on
the size of the Union’s negotiating team. However, the Au-
gust 14 letter sought to enforce the Union acquiescence as
the price for a negotiating date. Self-help, in this form, could
not lawfully be invoked to force the Union to downsize its
negotiating team to the Respondent’s suiting.
‘‘[A]bsent any finding of bad faith or ulterior motive on
the part of unions . . . it was the duty of the Company to
negotiate with the bargaining committees of the Unions . . .
even though the temporary representatives were present.’’
Standard Oil Co. v. NLRB, 322 F.2d 40, 44 (6th Cir. 1963).
See also General Electric Co., 173 NLRB 253, 256 (1968),
enfd. in material part 412 F.2d 512 (2d Cir. 1969); Albritton
Communications, 271 NLRB 201, 206 (1984). Here, the
record includes allegation, but no proof that the size of the
Union’s negotiating committee interfered with the process of
bargaining. Nelson’s generalized testimony that he did not
appreciate side comments flowing from members of the
union committee was undetailed, and lacked basis for evalu-
ating how any such remarks proved disruptive, and whether
reduction of the committee to a total of four would prove
salutary in this regard. Nelson’s opinion was no substitute for
evidence that would allow independent assessment. Accord-
ingly, I find that the Respondent independently violated Sec-
tion 8(a)(5) and (1) of the Act by declaring that it would not
set a negotiating date unless the Union agreed to operate
through a committee of designated size.
Other issues are presented by Nelson’s insistence that
Monet be excluded. Monet, who had been discharged on July
28, earlier had served as a member of the Union’s negotiat-
ing team during bargaining sessions in March, May, and
July.64 The Board has held, with court approval, that em-
ployers may not insist that a discharged employee be re-
moved from a negotiating committee as a precondition to
further bargaining. Vibra-Screw, Inc., 301 NLRB 371 (1991);
Colfor, Inc., 282 NLRB 1173 (1987), enfd. 838 F.2d 169
(6th Cir. 1988). However, the Board reached a different re-
sult where a union representative, without provocation, phys-
ically assaulted the employer’s personnel director at the out-
set of a grievance proceeding. Fitzsimons Mfg. Co., 251
NLRB 375 (1980). In doing so, the Board acknowledged that
where the presence of a particular representative in ne-
gotiations makes collective bargaining impossible or fu-
tile, a party’s right to choose its representative is lim-
ited, and the other party is relieved of its duty to deal
with that particular representative. [251 NLRB at 379.]
The General Counsel contends that the Fitzsimons test was
not met here. I agree. There, the assault occurred during the
course of grievance negotiations and involved the employer’s
principal representative. Monet’s misconduct, on the other
hand, was unrelated to bargaining and involved no confronta-
tion with any management representative that, as of August
14, was a member of the negotiating team. In fact, as the
General Counsel observes, the Company raised no objection,
890 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
65 See, e.g., Kent Engineering, Inc., 180 NLRB 86, 89 (1969).
66 Laredo Packing Co., 254 NLRB 1, 19 (1981); John Wanamaker
Philadelphia, 279 NLRB 1034, 1047 (1986).
67 Athey Products Corp., 303 NLRB 92, 96 (1981).
and there is no indication that bargaining suffered when
Monet attended subsequent bargaining sessions on December
8 and 9. In the total circumstances, I am not convinced that
the presence of Monet would have made good-faith bargain-
ing ‘‘impossible.’’ I find that the Respondent violated Sec-
tion 8(a)(5) and (1) of the Act on August 14 when it condi-
tioned bargaining on Monet’s removal, and on September 18,
when it walked out of negotiations to enforce that objective.
(3) Conditioning bargaining on withdrawal of, and
Waiver of right to file, unfair labor practice charges
During the July 22 bargaining session, Nelson admittedly
told Eliza that ‘‘if he continues to . . . say he’s going to file
a charge every time the . . . Company refused to accept one
of the Union’s proposals . . . we would recess for the day.’’
Again, in his letter of August 14, Attorney Nelson indi-
cated that he would not propose a date for any future nego-
tiations unless the Union agreed to the following:
2. The Union will withdraw all pending unfair labor
practice charges against Caribe Staple alleging an un-
lawful refusal to bargain. We have met with you on
several occasions, discussed mandatory topics of bar-
gaining in good faith and have, in fact, reached many
agreements in principle on contract terms with the
Union. Therefore your unfair labor practice charges are
frivolous. Your tactic of filing unlawful refusal to bar-
gain charges against Caribe Staple will not generate
constructive bargaining.
3. You will cease making threats every time the
Company does not agree to one of your proposals that
you will file an unfair labor practice charge for unlaw-
ful refusal to bargain. As you well know, the law does
not require the Company to agree to any of the union
demands or compel the company to negotiate with you
on permissive topics of bargaining. Such statements and
threats by you that you will ‘‘soak’’ the Company with
unfair labor practice charges are counter productive to
the bargaining process and indicate unlawful harass-
ment of the Company. Attempts by you to use the Na-
tional Labor Relations Act unfair Labor practice proce-
dures to exert pressure on the Company are improper
and ineffective.
The Respondent had every right to use persuasive, non-
coercive means to convince the Union against over involve-
ment with Board processes.65 However, it could not lawfully
refuse to set a negotiating date until the Union agreed that
pending unfair labor practices would be withdrawn,66 or that
none would be filed in the future.67 Here again, the Respond-
ent violated Section 8(a)(5) and (1) on each count.
(4) Restrictions on length of bargaining sessions
Prior to the August 14 letter, the parties, during almost 10
months that lapsed since the certification had met for a total
of about 18 hours. Unabashed at the dearth of time invested
in these negotiations, the Respondent, through this document
sought to enforce the Union’s agreement to the following:
5. Negotiations will begin at 10:00 a.m., and last no
latter than 2:00 p.m., on each respective day. This is
necessary because the representatives of Caribe Staple
are required to carry out other Company business while
in Puerto Rico. Also, because the Union and many of
the employees which it represents have filed several un-
fair labor practice charges, we are compelled to sched-
ule meetings with NLRB representatives to provide af-
fidavits, information, etc. on those charges while in
Puerto Rico.
The obligation to meet at reasonable times is not relaxed
by a party’s selection of negotiating representatives whose
personal circumstances make them available only periodi-
cally. Barclay Caterers, 308 NLRB 1025 (1992). In the light
of the abbreviated negotiations during the 10 months since
certification, the unilateral imposition of 4-hour daily time
limitation cannot be reconciled with the requirements of Sec-
tion 8(d) and, in the circumstances, constituted an illegal de-
mand. See, e.g., Crispus Attucks Children’s Center, 299
NLRB 815 fn. 2 (1990). In any event, it is unlawful to con-
dition future bargaining on acceptance of such a condition.
Even were this a mandatory subject, because there was no
claim of impasse, the mere fact that the Respondent condi-
tioned further negotiations on the Union’s acceptance of this
limitation, violated Section 8(a)(5) and (1) of the Act.
(5) Insistence on written bargaining agenda
The August 14 letter goes on to demand that the Union
agree to the following demand:
You will forward directly to me your proposed agenda
listing specific topics of discussion for each session.
We, in turn, will either agree with your agenda or sub-
mit counterproposals. Once we have agreed on an agen-
da, that agenda will be followed during each negotiat-
ing session.
I have no quarrel with the wisdom of this approach. How-
ever, matters of this kind are to be discussed and not im-
posed by one party on the other. Once again, the vice lies
in the attempt to force capitulation by declining to agree to
any future bargaining session unless the Union acceded to
this nonsubstantive, procedural demand. See, e.g., Hutch-
inson Fruit Co., 277 NLRB 497, 498 (1985). By doing so,
the Respondent violated Section 8(a)(5) and (1) of the Act.
b. Dilatory scheduling of bargaining meetings
The complaint, as amended, alleges that the Respondent
was dilatory in arranging bargaining sessions between Janu-
ary 21 and through November 20. During this time frame,
the parties met on a face-to-face basis on the following dates:
March 17, 18, and 19; May 19; July 21, 22, and 23; and
September 16, 17, and 18.
In fact, as events unfolded, these were the only bargaining
sessions held during the initial 13 months following certifi-
cation. To make matters worse, most were limited to a few
hours. The root causes for the dedication of minimal time to
this effort become evident only after examination of the cir-
891CARIBE STAPLE CO.
68 G.C. Exh. 101(e). This apparently crossed a letter of January 1,
from the Union in the mail. The Union requested meetings on Feb-
ruary 4 and 5. G.C. Exh. 101(f).
69 G.C. Exh. 101(g).
70 G.C. Exh. 101(i).
71 G.C. Exh. 101(j).
72 G.C. Exh. 102(a).
73 G.C. Exh. 102(b). I draw no conclusions, but call attention to
the notation on the Union’s letter indicating that it was sent to Nel-
son via ‘‘Federal Express.’’ My curiosity is aroused by the fact that
Urena’s letter also bears an April 3 date. Though sent from Luquillo,
this was time-stamped as received by the Union 6 days later, on
April 9.
74 R. Exh. 11(b).
75 See also R. Exh. 11, in which additional mischief is outlined by
Supervisor Ignacio Garcia as having occurred on May 22, 1992.
Jaile confirmed Garcia’s accounting, but added that telephone lines
were cut on two occasions, the first shortly after the election, and
again soon after the employees went on strike on July 30, 1992. The
existence of property damage and likely sabotage is confirmed by
Richie Vazquez, a witness for the General Counsel, who testified
that prior to this meeting he had observed damage in the plant from
causes other than normal wear and tear, including knotted rags and
pieces of metal wedged in conveyors, the glass doors to the main
office broken out, damage to the company sign, and a company car
that had been doused with paint.
76 According to Richie Vazquez, Nelson made this comment on his
arrival. Nelson’s testimony that it was made as the union committee
departed made more sense and is credited.
77 As matters turned out, both the Union and the Respondent filed
unfair labor practice charges addressing events at this meeting. Both
were dismissed. R. Exhs. 8(a), (b), and (c).
78 G.C. Exh. 102(b). I reject Vazquez’ testimony that the next
meeting was to take place in Hato Rey.
79 The letter is in evidence as G.C. Exh. 102(c). Its tone is accusa-
tory, and its demand for relocation of the site of negotiations pe-
remptory.
cumstances under which meetings were arranged, postponed,
curtailed, and held during this time frame.
March 17 and 18. As indicated, the Union presented its
initial proposal on November 25, 1991. (G.C. Exh. 101(a).)
Having received no response, the Union’s spokesperson, Juan
Eliza, telephoned Jose Urena, the plant manager, and re-
quested a meeting. Eliza was informed that the Respondent
was still examining the Union’s proposal. This was con-
firmed by Attorney Nelson by letter December 17, 1991. He
at the same time advised that he would serve as the Compa-
ny’s chief negotiator.
By letter of January 20, Attorney Nelson indicated that the
Company was prepared to entertain requests for meeting
dates, but that, due to his involvement in ‘‘a lengthy trial,’’
he would be unavailable until the last 2 weeks of March.68
Eliza telephoned Urena protesting any delay beyond Feb-
ruary. On January 29, the Respondent submitted its counter-
proposal, but Nelson reaffirmed that he would not be avail-
able until after March 15.69 By letter of February 26, the
Union proposed ‘‘alternative’’ dates of March 17, 18, and
19.70 This was accepted.71 Face-to-face negotiations began at
that time. However, on March 18, the Respondent informed
the Union that it would have to cancel the third session that
had been scheduled for March 19. Negotiations during this
visit to the Island by Attorney Nelson consumed a grand
total of less than 10 hours.
May 19. By letter dated April 3, the Union protested a rep-
resentation by Urena that Nelson would be unable to meet
until mid-May, and requested specific dates in April.72 Con-
firming an inability to meet in April, the Respondent, by let-
ter signed by Urena purportedly of the same date, proposed
May 19, 20, and 21.73
As suggested by the Employer, the parties next met on
May 19. The General Counsel sought to litigate events at this
session under the overall bad-faith allegation. No allegation
appears in the complaint suggesting any illegality during this
meeting.
Prior to this meeting, a number of incidents had taken
place suggesting that employees were engaged in violence
against the Respondent’s property and sabotage to its oper-
ations. On April 22, 1992, a notice was posted concerning
vandalism, whereby employees were informed, inter alia, that
the offenders will be prosecuted.74 In this respect, Supervisor
Ignacio Garcia described this notice as predicated on broken
drains in the restrooms, slashing of supervisors’ tires, a
smashed fluorescent company sign, the presence of glue in
machine gear boxes, etc.75
When Attorney Nelson arrived at the plant for the May 19
meeting, he was advised by Jaile that the vandalism had not
stopped and that, the night before, a rock had been thrown
through a plate glass window.
The union committee was already seated when Nelson and
Urena arrived at the conference room. Nelson retrieved a
large box, which he placed in front of Eliza. The box con-
tained pieces of a large rock, metal, and broken glass, includ-
ing a sector of the Company’s outdoor sign that had been
broken off. It was offered by Nelson with the accusation that
members of the bargaining unit were responsible. Nelson
stated that that he wanted the property damage stopped im-
mediately, and that if it did not the plant would be shut
down. Eliza said, ‘‘if you have complaints concerning van-
dalism, take them to the police.’’ He accused Nelson of dis-
respect toward himself and the union committee. Nelson
again appealed that Eliza direct the represented employees to
stop the vandalism. Eliza said ‘‘let’s go’’ and the Union’s
bargaining team walked out, without returning that day. Nel-
son stated that Eliza should not run to the National Labor
Relations Board to file unfair labor practice charges because
the Company was there to negotiate.76 The Company waited
an hour for the Union to return, and when they did not, went
to the Board and itself filed charges.77
Bargaining sessions were scheduled for May 20 and 21.
Neither was held. Nelson credibly testified that the parties
had agreed that these meetings would take place at the
plant.78 He added that at 4:30 p.m. on May 19, the Company
received a letter from the Union, requesting that negotiations
be resumed but at the Department of Labor in Hato Rey.79
The Company did not respond, refusing to alter the agreed-
upon location. Thus, there were no further negotiations in
May. In my opinion, the Union was equally responsible for
the breakdown in negotiations at that time and I draw no
conclusions adverse to the Respondent from the aborted ses-
sions during that week.
July 21, 22, and 23. Prior to the July meetings, the parties
had last met on March 19. Moreover, during the 9 months
that lapsed since the certification the parties had dedicated
little more than 9 hours to actual bargaining.
Nelson wrote Eliza on June 1, stating:
892 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
80 G.C. Exh. 102(d).
81 G.C. Exh. 102(e).
82 G.C. Exh. 102(f).
83 G.C. Exh. 102(g).
84 G.C. Exh. 102(h).
85 G.C. Exh. 102(i).
86 G.C. Exh. 102(j).
87 The meetings were set back 1 day because July 20 was a legal
holiday in Puerto Rico.
88 The session was terminated at 1 p.m. The appointment at the
Board offices was scheduled for 3 p.m. Nelson admitted that he was
aware of this appointment prior to July 21, but that he did not notify
the Union of the conflict until July 22.
89 G.C. Exh. 103(a).
90 G.C. Exh. 103(b).
91 G.C. Exh. 103(c).
92 G.C. Exh. 103(e).
93 G.C. Exh. 103(f).
94 G.C. Exh. 103(b).
95 According to Nelson, the Union requested that they adjourn
early at one of the September sessions. He admitted, however, that
at the outset of the meeting of September 18, he informed the Union
that he would be unavailable after 12 p.m. due to ‘‘flight arrange-
ments.’’
96 G.C. Exh. 107(a).
97 G.C. Exh. 107(b).
98 G.C. Exh. 107(d).
[O]n May 19, 1992, you and your Union representa-
tives walked out in bad faith. Your actions have caused
the Company to incur substantial unnecessary expenses
for air fare and travel costs. Therefore we feel it appro-
priate that the next session be held at a neutral location
in Chicago, anytime during the next two weeks.80
Other than the fact that Chicago was the home base of the
Respondent’s representative, that location had no relevance
to the negotiations at hand. The plant was in Puerto Rico and
reasonableness dictated that negotiations were to take place
there and not at some distant location that would place a
hardship on the employees and their representative. In the
circumstances, this demand that negotiation take place at that
location was indicative of bad faith, if not itself unlawful.
See, e.g., Somerville Mills, 308 NLRB 425 (1992).
The Union, by letter of June 3, asked that negotiations re-
sume on June 15 in Puerto Rico, while stating availability for
the balance of the month of June as well as July, and ‘‘to
the conclusion of negotiations.’’81 This position was reiter-
ated in the Union’s letter of June 5.82 By letter of June 15,
the Respondent advised the Union, as follows:
Since you have refused to negotiate in Chicago, Illinois,
the Company representatives are willing to resume ne-
gotiations on 20, 21 and 22 July. Please advise of your
committee’s availability and proposed place of negotia-
tion.83
By letter of June 17, the Union proposed earlier dates during
either the last week of June or the first week in July, specifi-
cally requesting ‘‘that you . . . reconsider your position of
further delaying this negotiation.’’84 The Respondent replied
by letter of June 29, declaring that it would be in San Juan
to resume negotiations on July 20, 21, and 22.85 The Union
had little alternative, and grudgingly agreed by letter of July
8.86
The parties reconvened on July 21.87 On July 22, before
the session began, the Union was advised by the Respondent
that it would be necessary to recess early, because the Com-
pany had arranged to meet with Board representatives con-
cerning pending unfair labor practice charges that had been
filed by the Union.88
The July 23 session was also shortened to accommodate
the Respondent’s attorney. At that time, the Union was first
informed that the meeting would end at 1:30 p.m. although
Nelson knew in advance of that date that this would be nec-
essary to meet his selected return flight to Chicago.
September 16, 17, and 18. On August 10, the Union ad-
vised of its availability to meet after August 17 through any
date in September.89 As indicated by letter dated August 14,
Nelson indicated that he would be willing to meet in Septem-
ber. However, he unlawfully refused to schedule ‘‘a firm
date’’ until the Union assented to certain specified ground
rules, including reducing the size of the bargaining commit-
tee, withdrawing all outstanding refusal-to-bargain charges,
agreeing not to file future charges, and restricting the length
of bargaining sessions to 4 hours per day.90 The Union re-
plied through its attorney, Paul Shacter, who by letter dated
August 31, contesting the legality of the conditions imposed
by the August 14 letter.91 As indicated, the Employer there-
after elected not to press its illegal design.92 By letter of
September 3, Attorney Nelson agreed to meet on September
16, 17, and 18.93 The meetings occurred as scheduled Sep-
tember 16 and 17, running no more than 4 hours each day.
At the meeting of September 18, Monet, a member of the
Union’s negotiating committee who had attended all bargain-
ing sessions prior to his July 30 discharge, reappeared as part
of the union contingent. Consistent with a demand appearing
in its August 14 letter,94 company representatives requested
that the Union require Monet to leave. The Union refused,
whereupon, the company representatives walked out at ap-
proximately 10:30 a.m., frustrating any bargaining that day.95
I have heretofore concluded, that the Respondent’s refusal to
bargain on this occasion and to enforce its objection to
Monet’s presence violated Section 8(a)(5) and (1) of the Act.
December 8. By letter of September 24, the Union sought
a resumption of negotiations on October 6 through 9.96 There
was no response, causing the Union, by letter of October 5,
to inquire as to the Company’s availability.97 On October 9,
Nelson wrote the Union, transmitting a revised proposal on
the issue of ‘‘Jury Duty Leave.’’ There was no reference to
future bargaining sessions. By letter of October 16, Eliza, on
behalf of the Union, wrote Nelson, contesting the latter’s ac-
count of their past deliberations on the jury duty issue, and
stating:
With regard to any proposal that the Company may
have, we understand that you must submit it and dis-
cuss it at the bargaining table. In fact, we have sent you
two (2) communications, via Federal Express, summon-
ing you for bargaining and we have not received a
reply from you. We trust you will contact us in the next
few days to continue the bargaining process.98
By letter of October 19, Nelson replied:
893CARIBE STAPLE CO.
99 G.C. Exh. 107(e).
100 G.C. Exh. 107(f).
101 G.C. Exh. 107(g).
102 G.C. Exh. 107(h).
103 G.C. Exh. 107(i).
Please advise me of alternative dates in November
and/or December to continue collective bargaining ne-
gotiations.99
By letter of October 23, the Union reminded the Respondent
of its efforts since September 24 to secure a resumption of
face-to-face negotiations, and concluded as follows:
Given your reiterated attitude of refusal to bargain in
bad faith, we are summoning you to bargain during the
week of November 9 to 13, 1992.100
The request was rejected by Attorney Nelson’s letter of
November 2. Rather than inform the Union of his availabil-
ity, Nelson requested that the Union submit dates when it
would be available during the first 3 weeks of December.101
By letter dated November 6, the Union protested the Re-
spondent’s practice of putting the onus on it to select nego-
tiating dates, but suggested dates between November 17 and
25, adding that if the Company is unable to meet at those
times, ‘‘you tell us when you want to bargain.’’102
Finally, by letter dated November 20, the Company agreed
to meet on December 8, 9, and 10, ‘‘provided negotiations
prove fruitful and impasse or breakdown in negotiations do
not result.’’103 The Union agreed to these dates. Negotiations
resumed on December 8.
The statute does not restrict any party’s right to select
whom they please as bargaining representative, provided that
this designation does not collide with the duty under Section
8(d) ‘‘to meet at reasonable times.’’ Considerations of per-
sonal convenience, including geographic or professional con-
flicts, do not take precedence over the statutory demand that
the bargaining process take place with expedition and regu-
larity. An employer acts at its peril when it selects an agent
incapacitated by these or any other conflicts. Here, it is ap-
parent from the entire record that the parties met when Nel-
son was good and ready. This produced an minimal number
of scheduled meeting dates within the time frame focused by
this complaint. During the first 13 months after the certifi-
cation, Nelson made four trips to Puerto Rico for purposes
of collective bargaining. Negotiations on no one trip exceed-
ed 3 days, with the longest daily session exceeding 4 hours
by only 15 minutes. The parties, during this time frame met
for a grand total of less than 24 hours.
At a minimum the foregoing evidences a clear noncompli-
ance with the duty to meet at reasonable times. The Re-
spondent thereby violated Section 8(a)(5) and (1) of the Act.
3. Overall bad faith
The General Counsel contends that the Respondent’s dila-
tory practices, and other conduct, exhibited subjective bad
faith in the form of an intent to frustrate bargaining. The
General Counsel’s position in this respect entails no charge
of intransigence in the actual give-and-take sector of negotia-
tions, and no effort is made to track or evaluate proposals,
counterproposals, and concessions. Cf. Coastal Electric Co-
operative, 311 NLRB 1126 (1992). Instead the contention
rests exclusively on the Respondent’s contribution to uncon-
scionable delays in bargaining, inflamed by (1) a pattern of
sessions abbreviated in duration to account for the Respond-
ent’s lateness, need to conduct other business, or to accom-
modate travel arrangements; (2) the June 1 demand that ne-
gotiations resume in Chicago; and (3) the August 14 refusal
to set a meeting date absent union concessions on mandatory
and nonmandatory subjects of bargaining.
There is no question that the Respondent aspired to a dom-
inant role in arranging negotiations, and that it actually
sought to dictate the time, place, and duration thereof, pro-
ducing a noncompliance with Section 8(d) of outrageous pro-
portion. This was exacerbated by additional illegal conduct
that contributed to further delays in the negotiating process.
However, I am unaware of any precedent equating a serious
violation of this standard with overall bad faith in the sense
that such conduct evidences either a desire on a per se basis
(1) to frustrate agreement, or (2) a total rejection of the prin-
ciples of good-faith collective bargaining. Although I am
convinced that the Respondent’s approach to bargaining was
cavalier, if not lackadaisical, and that the independent 8(a)(5)
violations found above constituted a serious threat to the
process, I am not convinced that the total circumstances war-
rant a finding of overall bad faith. The alleged violation of
Section 8(a)(5) in this respect shall be dismissed.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) in June or July
1991 when Machine Shop Supervisor Jorge Narvaez in-
structed an employee not to engage in union activity, and
created the impression that such activity was subject to sur-
veillance.
4. The Respondent violated Section 8(a)(1) when on or
about August 1, 1991, Narvaez informed an employee that
he was being watched because of his known affiliation with
the Union, and that he and other union leaders would be dis-
charged.
5. The Respondent violated Section 8(a)(1) of the Act on
August 2, 1991, when Production Manager Frank Jaile di-
rected employees to quit if they wished to form a union, cre-
ated the impression that union activity was subject to surveil-
lance, threatened plant closure, and declared that union orga-
nization would be futile as the Company would not accept
a union.
6. The Respondent violated Section 8(a)(1) when on or
about late September or early October 1991, General Man-
ager Jose Urena informed an employee that he could vote in
a Board election as long as he voted against the Union, and
by, in mid-October, creating the impression that union activ-
ity was under surveillance and by threatening to challenge an
employee’s ballot at the election because of he supported the
Union.
7. The Respondent violated Section 8(a)(1) when in April
1992, Production Supervisor Ignacio Garcia requested an em-
ployee to observe and report back on union activity and by
creating the impression that union activity would be subject
to surveillance.
894 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
104 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
8. The Respondent violated Section 8(a)(1) of the Act by
on July 13, 1992, suspending the employees listed below
merely because they participated in a work stoppage pro-
tected by Section 7 of the Act:
Carlos Baeza David Casillas
Randolph J. Feliciano Luis M. De Jesus Cepeda
Safin C. Figuero Michael Garcia
Gilberto Gonzalez Rubin Hernanadez
Jose E. Laureano Celestino Montanez
Efrain Pagan Eric Sota
Hector Western Miguel A. Rivera
Angel M. Rosa
9. The Respondent violated Section 8(a)(3) and (1) of the
Act by on August 18, 1991, discharging Juan Suarez in re-
prisal for his union activity.
10. The following employees constitute a unit appropriate
for purposes of collective bargaining within the meaning of
Section 9(b) of the Act:
All production and maintenance employees, including
leadmen employed by the Employer at its place of busi-
ness in Luquillo, Puerto Rico, but excluding all other
employees, office clerical employees, guards and super-
visors as defined in the Act.
11. At all times since October 29, 1991, the Union has
been and is the certified, exclusive bargaining representative
of employees in the afore-described appropriate unit.
12. The Respondent violated Section 8(a)(5) and (1) of the
Act by refusing to meet at reasonable times and bargain in
good faith between January 20 and November 20, 1992.
13. The Respondent independently violated Section 8(a)(5)
and (1) by, on August 14, 1992, conditioning any resumption
of bargaining on:
(a) The Union’s agreement to reduce the size of, and to
exclude a former employee from, its negotiation team.
(b) The Union’s withdrawal of pending unfair labor prac-
tice charges, and waiver of the right to file such charges in
the future.
(c) The Union’s agreement that daily negotiations will not
exceed 4 hours.
(d) The Union’s agreement to a procedural format where-
by the Union, prior to each session, would submit a written
bargaining agenda to the Employer.
14. The unfair labor practices found above affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, it shall be recommended that it be or-
dered to cease and desist therefrom, and to take certain af-
firmative action deemed necessary to effectuate the policies
of the Act.
The Respondent, having discharged Juan Suarez unlaw-
fully, shall be ordered to offer him immediate reinstatement
to his former position, and to make him whole for loss of
wages and benefits incurred from the date of discharge to the
date of a genuine offer of reinstatement, less net interim
earnings. Moreover, having concluded that the Respondent
on July 13, 1992, unlawfully suspended 15 employees for 3
days, it shall be recommended that they be made whole for
losses incurred by reason of the discrimination against them.
All backpay due under the terms of this recommended order
shall be computed on a quarterly basis as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as au-
thorized in New Horizons for the Retarded, 283 NLRB 1173
(1987).
Although I have not found that the Respondent was guilty
of subjective bad faith, the failure to schedule and participate
in bargaining sessions in compliance with Section 8(d) of the
Act constituted a flagrant violation of the duty to meet at
regular times, and on that basis alone, the Respondent unlaw-
fully denied employees the benefit of collective bargaining
and the services of their bargaining representative at all times
since October 29, 1991. Accordingly, consistent with the
teachings of Mar-Jac Poultry Co., 136 NLRB 785, 787
(1962), it shall be recommended that the initial certification
year shall start anew at the time that the Respondent begins
to bargain in good faith consistent with the Act and the dic-
tates of this recommended Order.
At the same time, I reject the General Counsel’s request
for extraordinary redress in the form of a recommendation
that the Respondent be ordered to (1) commence bargaining
within 15 days of a Board Order, (2) bargain a minimum of
15 hours weekly, (3) report every 15 days on the progress
of negotiation to the Regional Director, with copies to the
Union, and (4) make whole employee negotiators for earn-
ings lost while attending bargaining sessions. The remedies
sought are inappropriate. They are nonremedial, but penal in
nature, because they go beyond restoration of the status quo
and in that sense lack a corrective nexus with any unfair
labor practice finding in this case. Moreover, the relief
sought assumes that the Board is empowered to sit at the
bargaining table, monitoring every move, while dictating pro-
cedures at the expense of private agreement. To this extent,
it is a remedial package that transcends the Board’s limited
role of enabling and then enforcing the process of recogni-
tion and negotiation. In short, the pressure of governmental
intervention inherent in these remedies cannot be reconciled
with a Statutory scheme that envisions and seeks to preserve
an independent system of free collective bargaining.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended104
ORDER
The Respondent, Caribe Staple Company, Inc., Luquillo,
Puerto Rico, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Instructing employees not to engage in union activity.
(b) Creating the impression that union activity is subject
to surveillance.
(c) Directing employees to quit their jobs if they wished
to form a union.
(d) Threatening that the plant will close because employ-
ees have engaged in union activity.
895CARIBE STAPLE CO.
105 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(e) Declaring that union organization would be futile as
the Company would never accept a union.
(f) Informing employees that they will be watched because
of their union affiliation.
(g) Threatening that union leaders will be discharged.
(h) Informing an employee that he could vote in a rep-
resentation election as long as he voted against the Union.
(i) Threatening to challenge an employee’s ballot at a rep-
resentation election because of his union sentiment.
(j) Requesting employees to spy and report back on union
activity.
(k) Declaring that future union activity will be subject to
surveillance.
(l) Discouraging union membership and participation in
protected concerted activity, by discharging, suspending, or
in any other manner discriminating against employees with
respect to wages, hours, or other terms and conditions or ten-
ure of employment.
(m) Refusing to bargain in good faith with the Union as
the exclusive the representative of employees defined imme-
diately below by refusing to meet at reasonable times; or re-
fusing to meet unless the Union agreed: to reduce the size
of, or to eliminate a former employee from, its negotiation
team; to withdraw all pending unfair labor practice charges;
to waive the right to file such charges in the future; to agree
that daily negotiations would not exceed 4 hours; and to sub-
mit a written bargaining agenda to the Employer prior to
each session. The appropriate collective-bargaining unit con-
sists of the following employees:
All production and maintenance employees, including
leadmen employed by the Employer at its place of busi-
ness in Luquillo, Puerto Rico, but excluding all other
employees, office clerical employees, guards and super-
visors as defined in the Act.
(n) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer immediate reinstatement to Juan Suarez and
make him whole for losses sustained by reason of the dis-
crimination against him, with interest, as set forth in the rem-
edy section of this decision.
(b) Make whole, with interest, the employees listed below
for losses each sustained by reason of a 3-day discriminatory
suspension:
Carlos Baeza David Casillas
Randolph J. Feliciano Luis M. De Jesus Cepeda
Safin C. Figuero Michael Garcia
Gilberto Gonzalez Rubin Hernanadez
Jose E. Laureano Celestino Montanez
Efrain Pagan Eric Sota
Hector Western Miguel A. Rivera
Angel M. Rosa
(c) Remove, delete, and expunge, from the employment
records of Juan Suarez, and the 15 employees named above
any and all references to the discharge and suspensions, re-
spectively, and inform them that these incidents will not in
any fashion be used against them in the future.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, 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.
(e) On request, bargain collectively and in good faith con-
cerning wages, hours, and other terms and conditions of em-
ployment with the Union as the exclusive representative of
employees in the above-described unit, and embody any un-
derstanding reached in a signed agreement.
(f) Post at its facilities in Luquillo, Puerto Rico, copies of
the attached notice marked ‘‘Appendix.’’105 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 24, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately 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 Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(g) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.