Cooperativa de Credito y Ahorro Vegabajena

National Labor Relations Board - Board Decisions

May 27, 1982

261 N.L.R.B. 1098 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cooperativa de Credito y Ahorro Vegabajena and
Sindicato Puertorriqueno de Trabajadores, a/w
United Food & Commercial Workers Interna-
tional Union, AFL-CIO. Cases 24-CA-4353
and 24-CA-4335
May 27, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On May 29, 1981, Administrative Law Judge
James L. Rose issued the attached Decision in this
proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,'
and conclusions of the Administrative Law Judge
and to adopt his recommended Order, as modified
herein. 2
1. The Administrative Law Judge found that
union negotiators Oliveras and Melendez were not
managerial employees. Based on these findings, he
rejected Respondent's contention that the purpose
of the employees' strike was to force Respondent
to negotiate with managerial employees and, thus,
that the strike constituted unprotected activity. Re-
spondent excepts to the findings with regard to
Oliveras and Melendez, inter alia, on the ground
that these employees assertedly acquired manageri-
al status upon their election to Respondent's assem-
' Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951). We have
carefully examined the record and find no basis for reversing his findings.
The Administrative Law Judge erroneously found that Respondent's
president, Correa, testified at the hearing. This inadvertent error does not
affect our decision herein.
2 We find that it will effectuate the purposes of the Act to require Re-
spondent to expunge from the personnel records, or other files, of Luz S.
Berrios, Georgina Gomez, Gil Colon Maldonado, Francisco J. Marrero,
Juan F. Melendez, Luis S. Oliveras, Gertrudis Ramos, Maria E. Renia,
Juan U. Lozadd Rivera, Milagros Santa, and Lydia E. Sierra, any refer-
ence to their unlawful discharges.
We agree with the Administrative Law Judge's finding that a broad
cease-and-desist order is appropriate here under the standards set forth in
Hickmot Foods, Inc., 242 NLRB 1357 (1979). In so doing, however, we
rely solely on Respondent's unlawful conduct subsequent to June 11,
1980.
We leave to the compliance stage of this proceeding the determination
of the effect, if any, of a letter from striker Marrero to Respondent, dated
August 11, 1980.
Member Jenkins would provide interest on the backpay award in ac-
cordance with his partial dissent in Olympic Medical Corporation, 250
NLRB 146, 148 (1980).
261 NLRB No. 161
bly of delegates. In so doing, it contends, rlying
on N.L.R.B. v. Bell Aerospace Company, Div. of
Textron, Inc., 416 U.S. 267 (1974), and N.L.R.B. v.
Yeshiva University, 444 U.S. 672 (1980), that the del-
egates "formulate or effectuate management poli-
cies by expressing or making operative" Respond-
ent's decisions. We find no merit in this exception.
Respondent's bylaws provide that responsibility
for general management and administration of the
Cooperativa shall rest with the board of directors.
The directors serve 3-year staggered terms. Four
directors are elected directly from four geographi-
cal districts, and the remaining five are elect-d by
the assembly of delegates.
The assembly is comprised of 50 voting delegates
and 50 alternate delegates, all of whom are e ected
by the 5,000 shareholders. In addition to electing
one or two directors each year, and electing the
committee of credit and the committee of su ervi-
sion, the assembly receives annual reports fro n the
board of directors, the committee of credit, ard the
committee of supervision. It may remove aiy of
the assembly-elected directors for misconduct
based on a "request for dismissal" signed by 25
percent of the voting delegates. It also may review
suspensions or discharges of employees at the re-
quest of the committee of supervision or the affect-
ed employee. Finally, it may be called into special
session by the board of directors, the committee of
supervision, or by 10 percent of the shareholders.
So far as the present record indicates, the assem-
bly has engaged in no activities beyond receiving
reports and electing directors at any time material
herein.3 The record reveals, on the other hand,
that the board of directors has been involved in
day-to-day management of the Cooperativa, includ-
ing labor relations matters.
Based on both the official structural division of
responsibility as well as the actual activities of the
board and the assembly, we find that the a;sem-
bly's participation in the affairs of the Coopeiativa
is rare and insignificant. In contrast, the Bell 4ero-
space buyers found to be managerial employees
could commit their employer's credit up to $5,000
without seeking higher approval, while the faculty
members found to be managerial employees in Ye-
shiva University had absolute authority over aca-
demic policy, essentially determined all faculty per-
sonnel matters, made effective recommendations re-
garding most of their own conditions of employ-
ment, and, in parts of the university, made finml de-
cisions regarding many student and administrative
affairs. Thus, it is clear that the assembly of dele-
s Oliveras and other stnkers unsuccessfully attempted to obtaii suffi-
cient signatures to call a special session of the assembly to discuss the ne-
gotiations between Respondent and the Union
1098
COOPERATIVA DE CREDITO Y AHORRO VEGABAJENA
gates' minimal level of participation in management
does not rise to the ability to "formulate or effectu-
ate management policies by expressing or making
operative" Respondent's decisions. Finally, the fact
that Oliveras and Melendez are but 2 of 50 voting
delegates in the assembly further detracts from a
finding that they possess managerial authority. For
these reasons, in addition to those relied on by the
Administrative Law Judge, we conclude that Oli-
veras and Melendez are not managerial employees
and that there was no unprotected purpose in the
employees' striking in an attempt to persuade Re-
spondent to negotiate with Oliveras and Melen-
dez. 4
2. The Administrative Law Judge found that Re-
spondent violated Section 8(a)(3) and (1) of the Act
by discharging the strikers. We agree for the fol-
lowing reasons.
The strike began on June 11, 1980. Respondent
discharged two strikers, Santa and Ramos, on June
12 and a third, Marrero, on June 18. Respondent's
president, Correa, sent a letter on June 18 to all re-
maining strikers warning that they would be re-
placed if they did not return to work on June 23.
None returned and Respondent discharged the re-
maining seven of the original strikers on June 23.
No replacements were hired until July 24, 1980.
Respondent's discharge of Marrero and its subse-
quent refusal to reinstate him became a major issue
of contention between the strikers and Respondent
beginning in mid-July.
Whether the strike was an economic strike or an
unfair labor practice strike at its inception, we find
it was an unfair labor practice strike as of Mar-
rero's discharge on June 18, since it is clear from
the record that Marrero's discharge prolonged the
strike,5 and that Respondent's discharge of the re-
maining seven strikers on June 23 violated Section
8(a)(3) and (1). Towne Chevrolet, 230 NLRB 479,
488 (1977) (discharge of Macklin). 6 In any event, it
' The Administrative Law Judge, in concluding that Oliveras was not
a managerial employee, noted that, while his job was to contact delin-
quent borrowers and attempt to collect on their accounts, Oliveras had
very little discretion about how this work was accomplished in that he
was supervised by Respondent's administrator and any adjustments he ar-
ranged had to be specifically approved. The Administrative Law Judge
also noted that, unlike the conceded managerial employees, Oliveras was
paid on an hourly basis and punched a timeclock. In addition, he noted
that Oliveras was not listed as an administrative/managerial employee in
Correa's March 1, 1980, letter to the supervisory committee. Finally, the
Administrative Law Judge rejected Respondent's contention that Oli-
veras' and Melendez' participation in the negotiations constituted a con-
flict of interest because of their status as delegates to the assembly He
found that their level of participation in management was insufficient to
establish that they could not give their undivided allegiance to protecting
the rights of employees.
' We find it unnecessary to pass on the Administrative Law Judge's
reliance on Respondent's prestrike conduct in finding an unfair labor
practice strike.
I In view of our finding that the strike was an unfair labor practice
strike by June 18, we agree with the Administrative Law Judge's finding
is well established that an employer lawfully may
replace economic strikers, but that it violates the
Act by discharging them prior to replacement.
N.L.R.B. v. International Van Lines, 409 U.S. 48
(1972). Thus, even assuming, arguendo, the strike
was an economic strike at its inception, Respond-
ent's discharge of all the strikers violated Section
8(a)(3) and (1), since all were terminated prior to
being replaced.7
3. Respondent excepts to the backpay portion of
the Administrative Law Judge's recommended
remedy and Order. It contends that, through a July
14, 1980, tentative settlement agreement with the
Union, it unconditionally offered reinstatement to
all strikers except Marrero and, therefore, that
backpay should be tolled for those who refused its
offer. We find no merit in this exception.
On or about July 14, Respondent and the Union
reached a tentative settlement agreement. The
agreement provided that all employees except Mar-
rero and Berrios would be reinstated; that Marrero
would resign and be paid $1,200; that Berrios'
status would be decided by Respondent at a later
date; that the parties would attempt to withdraw
all outstanding lawsuits; that the bargaining unit
would be clarified as requested by Respondent;
that collective bargaining would be resumed; and
that any wage increase agreed upon during negoti-
ations would be at least partially retroactive. The
striking employees initially rejected the tentative
settlement agreement because Marrero refused to
resign. By a July 16 union letter, however, all strik-
ers unconditionally requested reinstatement. In ad-
dition, in a July 23 letter, the Union notified Re-
spondent that nothing stood in the way of the rein-
statement of eight named strikers, and requested
further discussions regarding Marrero and the
other remaining striker. President Correa, by letter
of July 24, responded that, since the tentative set-
tlement agreement had been rejected, all employees
would be replaced.
Contrary to Respondent's contentions, it is clear
from these facts that the tentative settlement agree-
ment was anything but an unconditional offer of re-
instatement to all strikers except Marrero. By its
that Respondent, through Correa's letter of June 18, violated Sec. 8(aX1)
by threatening to replace unfair labor practice strikers.
I The complaint alleges that Respondent discharged Georgina Gomez
on October 21, 1980, in violation of Sec. 8(aX3) and (I) of the Act Al-
though the Administrative Law Judge did not make any findings with
regard to Gomez' discharge, he included her in the reinstatement and
make-whole provisions of his recommended remedy and Order.
The record reveals that Gomez was hired as a strike replacement in
July 1980, that she joined the strike in October 1980, and that she was
discharged on or about October 21, 1980. Respondent admitted in its
answer, and its counsel stated on the record, that Gomez was terminated
for joining the stnrike. We find, therefore, that Respondent violated Sec.
8(a)3) and (1) by discharging Gomez for engaging in an unfair labor
practice strike.
1099
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nature as a "package deal" the agreement condi-
tions reinstatement on the employees' accepting the
other terms of the tentative settlement. The condi-
tional nature of the reinstatement offer contained in
the tentative settlement agreement is also revealed
in Respondent's refusal of the strikers' July 16 un-
conditional offer to return to work on the ground
that they had rejected the tentative settlement
agreement. Since Respondent failed to offer uncon-
ditional reinstatement to the discharged strikers,
there is no basis for tolling their backpay. See Thor
Power Tool Co., 148 NLRB 1379, 1390 (1964).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Cooperativa de Credito y Ahorro Vegabajena,
Vega Baja, Puerto Rico, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the said recommended Order, as so modified:
1. Insert the following as paragraph 2(b) and re-
letter the following paragraphs accordingly:
"(b) Expunge from the personnel records, or
other files, of Luz S. Berrios, Georgina Gomez, Gil
Colon Maldonado, Francisco J. Marrero, Juan F.
Melendez, Luis S. Oliveras, Gertrudis Ramos,
Maria E. Renia, Juan U. Lozada Rivera, Milagros
Santa, and Lydia E. Sierra any reference to their
unlawful discharges."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONA. LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE, WILL NOT discharge or otherwise dis-
criminate against our employees because they
engage in a lawful strike or other concerted
activity for their mutual aid or protection.
WE WIILL. NOT threaten employees with dis-
charge or other discrimination because they
engage in a lawful strike or other concerted
activity for their mutual aid or protection.
WE WILL NOT condition reinstatement of
strikers on their abandoning a lawful strike.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights guaranteed by Section
7 of the Act.
WE Wi t offer immediate and full reinstate-
ment to Francisco J. Marrero, Juan F. Melen-
dez, Luz S. Berrios, Lydia E. Sierra, Luis S.
Oliveras, Gil Colon Maldonado, Juan U.
Lozada Rivera, Maria E. Renia, Milagros
Santa, Gertrudis Ramos, and Georgina Cromez
to their former jobs or, if those jobs no longer
exist, to substantially equivalent positicns of
employment and WE WILL make them whole
for any losses they may have suffered as a
result of the discrimination against them with
interest.
WF wli.I expunge from the personnel
records, or other files, of the above-nameJ em-
ployees any reference to their unlawful dis-
charges.
COOPERATIVA DF CREDITO r'
AHORRO VEGABAJENA
DECISION
STATIMI NT OF THE CASE
JAMES L. ROSE, Administrative Law Judge: This
matter was heard before me on various dates froln De-
cember 15, 1980, through January 22, 1981. The princi-
pal allegation of the General Counsel's complaint :s that
a group of striking employees of the Respondent were
discharged in violation of Section 8(a)(3) of the Netional
Labor Relations Act, as amended, 29 U.S.C. § 151, et
seq.
The Respondent, while conceding that the strikers
were discharged "because of their strike activities,' con-
tends that it was justified in doing so because the strike
was unprotected since two employee negotiators were
also members of the Respondent's assembly of delegates,
and one, Luis Oliveras, was also a managerial employee.
The Respondent further contends that Francisco Mar-
rero was discharged specifically for picket line miscon-
duct and that Luz Berrios was discharged because she
had unlawfully withdrawn $1,000 from the account of
one of the Respondent's members.
Additional defenses in denial or mitigation of backpay
liability to the discharged strikers are similar and re lated
to these contentions.
Upon the record as a whole, including my observation
of the witnesses, briefs, and arguments of counel, I
hereby make the following:
1100
COOPERATIVA DE CREDITO Y AHORRO VEGABAJENA
FINDINGS OF FACT AND CONCI.USIONS OF LAW
1. THE FACTS
A. The Business of the Respondent
Cooperativa de Credito y Ahorro Vegabajena (herein
the Respondent or the Cooperative) is essentially a credit
union organized and doing business under the laws of the
Commonwealth of Puerto Rico, engaged in providing
savings, loans, and related services to members.' Appar-
ently the only requirement for membership in the Re-
spondent is to make a minimum deposit of $5.
The principal manager of the Respondent is an admin-
istrator who is in charge of all hiring and firing of em-
ployees and who himself is hired by and reports to the
board of directors. The board of directors is composed
of nine individuals each of whom is elected for a 3-year
term, the terms being staggered. Four members of the
board of directors are elected one each from four geo-
graphical districts and the remaining five members are
elected at large by the assembly of delegates. Each
member of the assembly of delegates is elected by Coop-
erative members in that individual's respective district.
There are approximately 100 assembly delegates. While
the delegates to the assembly serve for I year, apparently
their principal function is to meet shortly after their elec-
tion in December and elect the at-large members to the
board of directors. They also elect the supervisory com-
mittee and the loan committee and the assembly is a final
appellate tribunal.
Though not required, all of the Respondent's employ-
ees involved in this matter were also cooperative mem-
bers; and as indicated, Oliveras, Juan F. Melendez, and
Juan U. Lozada were, during the material time here,
elected to the assembly of delegates.
B. The Negotiations
In 1979, Sindicato Puertorriqueno de Trabajadores,
a/w United Food & Commercial Workers International
Union, AFL-CIO (herein the Union), began an organiza-
tional campaign among the Respondent's employees.
There was a Board-conducted election following which,
on August 2, 1979, the Union was certified as the exclu-
sive collective-bargaining representative in an appropri-
ate unit. 2
In October, representatives of the parties began meet-
ing periodically to negotiate the terms of a collective-
bargaining agreement and during the next 3 months
many of the noneconomic terms were agreed to, at least
tentatively.
The Respondent admits and I find that it annually receives savings
deposits from, and makes loans to, members valued in excess of $500,000;
and annually purchases and receives goods and supplies directly from
points outside the Commonwealth of Puerto Rico valued in excess of
$50,000. It is therefore an employer engaged in commerce within the
meaning of Sec 2(2), (6), and (7) of the Act
2 The unit is:
All tellers, secretaries, accounting clerks, loan office clerical employ-
ees and loan collectors employed by the Employer at its Cooperativa
de Credito y Ahorro Vegabajena located at Calle Betances in front
of Plaza del Mercado, Vega Baja, PR., but excluding all other em-
ployees, professional employees, the administrator, managerial per-
sonnel, guards and supervisors as defined in the Act.
Then on January 22, 1980, 3 for the first time, attorney
Lino Padron appeared as the chief spokesman for the
Respondent. Although there is some dispute concerning
precisely what Padron said at this first meeting, or how
long it took him to do so, it is generally agreed that
Padron had in mind beginning negotiations from scratch
or at least substantially changing the language of those
clauses the parties had already agreed to. It appears that
the parties thereafter met about weekly until early June
but were unable to finalize a contract, though, according
to the General Counsel's witnesses, agreement was final-
ly reached on the noneconomic items.
At a meeting on or about May 29, Padron announced
that he was going to file a unit clarification petition with
the Board inasmuch as it was in his opinion that Oli-
veras, a loan collector, was a managerial employee and
should not be serving on the Union's bargaining commit-
tee. The petition was in fact filed and the parties met in-
formally at the Board's Regional Office on June 9.
The parties had scheduled negotiation sessions for
June 10 and 12 but Padron, on June 9, suggested that
these meetings be postponed until the unit clarification
matter could be resolved. Padron testified that what he
had in mind was that the bargaining be held in abeyance
until there could be a "hearing" on the unit clarification
petition. Whichever, at the Respondent's insistence the
scheduled meetings of June 10 and 12 did not take place.
C. The Strike
Following discussion among the employees on June
10, they determined to go on strike although such action
was recommended against by the Union's attorney and
the principal nonemployee union official.
Thus on June 11, all the employees in the above-de-
scribed bargaining unit went on strike and on June 18 the
Respondent sent letters to all the permanent employees
stating in material part:
We are hereby inviting you to return to work and if
you fail to come to work on Monday, June 23, you
will be substituted in your position as an employee
until the substitute resigns or until a new similar po-
sition which is available exist.
This letter was signed by William Correa, president of
the board of directors, who testified that by such lan-
guage the Respondent discharged these employees. He
further testified that no "substitute" employees were in
fact hired by the Respondent until beginning June 24.
The temporary employees who were working on spe-
cific contracts of employment for 30 days, or more, were
discharged by letter dated June 12 signed by Gregorio
Rivera Martinez, the administrator, because of "your fail-
ure to comply with the first clause of the temporary
work contract that you signed with the Cooperativa."
The letter went on to explain that the contract commit-
ted the employee to work certain specific hours each day
and since the employee did not report to work such was
considered to be a breach of the employment contract.
3 All dates hereafter are in 1980 unless otherwise indicated
1101
DECISIONS OF NATIONAL L.ABOR RELATIONS BOARD
The permanent employees received a second letter on
June 23 stating in pertinent part that when they were in-
vited to return to work they were "told that if you failed
to return you would be subject to being substituted in
your employment. Your failure to report to work this
morning makes us believe that you have preferred to be
replaced and, of course, you are being informed that you
are dismissed and we have appointed a substitute."
The Respondent did not in fact begin hiring replace-
ments until the next day, June 24. Thus all of the Re-
spondent employees were in fact discharged before being
replaced.
The Respondent does not contest that all of the strik-
ing employees were discharged because they had en-
gaged in a strike, and I find they were.
In July the parties reached a tentative agreement to
settle the strike, the essence of which was that all of the
employees would return to work, except Marrero, who
the Respondent refused to take back, and Berrios, who
was not to be taken back until the allegations concerning
her were cleared. Marrero was to receive payment of
$1,200 and waive reinstatement. However, this settlement
agreement fell through and the employees continued on
their strike.
II. CONTENTIONS OF THE PARTIES
As indicated, the General Counsel alleges that the dis-
charges of striking employees were violative of Section
8(a)(3) of the Act. The General Counsel also contends
that the strike was caused, in part at least, by the Re-
spondent's unfair labor practice of refusing to bargain in
good faith with the Union.4
The Respondent contends that the employees were en-
gaged in unprotected activity in that the purpose of the
strike was to force the Respondent to negotiate with the
employees' bargaining committee, which included two
elected delegates-Oliveras and Melendez. The Respond-
ent contends that their position as an elected assembly
delegate was so closely aligned with management of the
Cooperative that it was inappropriate for them to serve
on the bargaining committee; and, therefore, to force the
Respondent to negotiate with them was tantamount to
forcing the Respondent to commit an unfair labor prac-
tice. The Respondent argues in addition that Oliveras
was a member of management.
Finally, the Respondent contends that the strike was
prolonged after July 23 by the fact that the employees
insisted on the Respondent reinstating Marrero who had
been discharged for picket line misconduct and thus,
even if the Respondent's discharge of the strikers was
unlawful, on July 23 the employees forfeited their right
to reinstatement and backpay.
4Though such an allegation appears in the complaint, the Respondent
settled that portion of the case, agreeing to recognize and bargain with
the Union and the General Counsel does not seek a remedial bargaining
order.
ill. ANAI.YSIS AND CONCLUDING FINDINGS
A. The Discharges
Without question, employees have a right to strike and
to discharge them for doing so is a violation of Section
8(a)(l) and (3) of the Act. Further, they are enti led to
reinstatement and backpay from the date of their dis-
charges. Abilities and Goodwill, Inc., 241 NLI'B 27
(1979). Thus, whether the strike here was economic or
caused by the Respondent's unfair labor practices has no
effect on the remedy. Nevertheless, I do conclude that it
was an unfair labor practice strike.
The Respondent's bargaining posture after l'adron
made his appearance was one of avoiding its statutory
obligation. He withdrew the Respondent's previous
agreements and they met sporadically for 5 months, the
parties finally reaching tentative agreement on the none-
conomic items.
Then Padron filed a unit clarification petition relating
to the status of Oliveras and sought to delay further bar-
gaining until that matter could be resolved-conceivably
months. In addition to concluding that Oliveras was not
a managerial employee, nor even considered one by the
Respondent, infra, I believe this tactic was an additional
attempt to frustrate bargaining.
After filing of the UC petition, Padron instructed the
administrator to hire someone and assign him to be su-
pervised by Oliveras so they could factually support his
contention that Oliveras was a supervisor. To this end, a
temporary employee was hired on June 10. However,
Oliveras never did supervise that employee, inasmuch as
on June 11 Oliveras went on strike. While the Respond-
ent does not now contend that Oliveras was a supervisor
within the meaning of Section 2(11), this attempt to
create facts in support of its predetermined position to
exclude Oliveras from the bargaining unit, and thus from
the negotiating committee, shows that the Respondent's
contentions concerning Oliveras were disingenuous.
In addition to his bargaining tactics, Padron wrote the
Union on April 12, stating in material part, "until the
agreement is signed we do not recognize your repre-
sentative authority for any union matters .... "
B. The Respondent's Defenses
1. Luis Oliveras, Juan F. Melendez, and Juan U.
Lozada
Oliveras has been an employee of the Respondent for
some time and was one of the leading activists on behalf
of the Union's organizational campaign. It appears that
Oliveras' job as a loan collector was specifically included
in the bargaining unit. Beyond that, his undisputed testi-
mony is that he earned $3.10 an hour, the minimum
wage, and punched the timeclock as did other employ-
ees. While his job was to contact delinquent debtors at-
tempting to collect accounts and set up payment sched-
ules, he really had very little discretion with regard to
how this was done. He was supervised directly by the
administrator and any adjustments he made had to be
specifically approved.
1102
COOPERATIVA DE CREDITO Y AHORRO VEGABAJENA
On the other hand the true managerial employees, the
administrator and the assistant administrator, for instance,
were paid on a salaried basis, do not have to punch the
timeclock, and in fact did have responsible authority to
make decisions. And in a memorandum to the supervi-
sory committee of March 1, Correa listed the "Adminis-
trative Employees," and stated, "The remainder of the
employees shall be classified as nonmanagerial employees
of same." Oliveras was not listed as an "administrative
employee."
In any event, I conclude, from the essentially undisput-
ed facts concerning Oliveras' duties, that he was not in
fact so closely aligned with management that he was ap-
propriately included in the bargaining unit.
The Respondent's other argument is that notwithstand-
ing, for Oliveras and Melendez to serve on the Union's
negotiating committee was some kind of a conflict of in-
terest because they were members of the Respondent's
assembly of delegates, which oversees management of
the Respondent by electing some of the board of direc-
tors, and the supervisory and loan committees.
In various fact settings, the Board has held that the
participation of a union official on both sides of the bar-
gaining table amounts to an impermissible conflict of in-
terest. However, for such to be violative of the Act, or
as argued here, to justify the refusal of the employer to
bargain with the union, there must be sufficient participa-
tion in the employer's business that the individual could
not approach negotiations with the single-minded pur-
pose of protecting the interests of employees. Therefore,
the mere fact that the union agents participate in broad
managerial decisions is not sufficient to create such a
conflict. For instance, a union may appoint one-half of
the trustees of a health and welfare fund and still repre-
sent the employees of the fund. See, e.g., Child Day Care
Center, Verona, Virginia and Baltimore Regional Joint
Board, Amalgamated Clothing and Textile Workers Union
Health and Welfare Fund, 252 NLRB 1177 (1980).
Thus, the participation of Oliveras, Melendez, and
Lozada (a bargaining unit member but not on the negoti-
ating committee) in management of the Respondent was
clearly insufficient to establish that they and the Union
could not give their undivided allegiance to protecting
the rights of employees. I therefore conclude that the
fact that Oliveras and Melendez were delegates did not
foreclose their being on the negotiating committee.
There was therefore no unprotected purpose in striking
to force the Respondent to bargain with the employees'
designated agents.
2. Francisco J. Marrero
On June 18 the Respondent discharged Marrero con-
tending that he had used threatening, improper, and abu-
sive language on the picket line and had challenged em-
ployees to fight.
The Respondent's evidence concerning Marrero's al-
leged misconduct is the testimony of Jose Manuel Pagan
de Jesus who said that, over a loud speaker on the picket
line, Marrero stated that Correa was a "20th century
Hitler." Marrero, along with other strikers, asked mem-
bers of the Cooperative to withdraw their funds. Finally,
according to Pagan, Reinaldo Rodriguez reported that
Marrero had called him names, said he had a knife, and
threatened to punch his stomach if he continued to work
for the Cooperative.
Marrero denied the substance of the factual allegations
contained in Pagan's testimony. The Respondent did not
call Rodriguez to testify concerning the alleged threat.
It is well settled that an employer violates Section
8(a)(3) of the Act in discharging an individual for engag-
ing in a strike. However, if it can be established by the
employer that that individual has engaged in egregious
misconduct on the picket line, such is a bar to reinstate-
ment. Where the employer is able to establish a good-
faith belief that the individual has engaged in picket line
misconduct, the burden shifts to the General Counsel to
prove that the individual did not engage in the activity
alleged or that it was not sufficiently serious to bar rein-
statement. Rubin Brothers Footwear, Inc., 99 NLRB 610
(1952).
Basically picket line language, even if directed to a
member of management, does not justify discharge of an
employee unless "it was so offensive, deflamatory or op-
probrious as to remove it from the protection of the
Act." Ben Perkin Corporation, 181 NLRB 1025 (1970).
And in those cases where an employee's language has
been found sufficient to justify discharge, the employee
had been warned in some way that a continuation would
result in discipline. E.g., Southwestern Bell Telephone
Company, 200 NLRB 667 (1972).
I conclude that a statement, even if uttered, to the
effect that the president of the board of directors is a
"20th century Hitler" is not so egregious as to deny one
the protective mantle of the Act. Many things are said
during the course of a strike which, while not to be con-
doned, nevertheless are not so serious as to deny one his
rights as an employee. Apparently words to this effect
were on a picket sign, though it is not clear how long
such a sign was carried; even so, there is no evidence
that employees were told to cease carrying it.
Asking members to withdraw funds from the Respond-
ent was simply asking them to cease doing business with
the Employer-a traditional purpose of picketing; and
one certainly protected by the Act. Thus I conclude that
the Respondent was not justified in discharging Marrero
(or Oliveras, Melendez, and Lozada) for this reason.
On the other hand, to threaten to assault one with a
knife if he continues to work is a serious act of miscon-
duct. However, I am constrained to conclude that the al-
leged threat by Marrero did not in fact occur. I find that
Marrero's demeanor was positive and that his testimony
denying this event is credible. The Respondent brought
forth no direct evidence of this alleged threat, relying
solely on the hearsay testimony of one of its managers.
Such is not sufficient proof to overcome Marrero's credi-
ble denial that he in fact made the threat.
I conclude that in discharging Marrero on June 18, as
with the other employees, the Respondent violated Sec-
tion 8(a)(1) and (3) of the Act and that Marrero did not
engage in sufficiently serious picket line misconduct to
affect his status as an employee. It follows that the Re-
spondent's contention that employees engaged in unpro-
tected activity when seeking to have Marrero reinstated
1103
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in July is not meritorious. I thus reject the Respondent's
contention that the strike became unprotected in July
when employees sought the reinstatement of Marrero.5
3. Luz Berrios
Luz Berrios was a receptionist, having started her em-
ployment in 1976. While the Respondent admits she was
discharged along with the other striking employees, it
contends that she is not entitled to reinstatement because,
in effect, she embezzled a $1,000 from the account of
Guadalupe Otero Vega.
Though the facts relating to this matter are far from
clear, on balance I credit the testimony of Berrios and
conclude that in fact she was authorized by Otero to
make withdrawals from his account of $400 and $600
and that she in fact gave the money to him.
Otero testified that he had given Berrios the authority
to make deposits on his behalf because they were neigh-
bors; however, he had never authorized her to make any
withdrawals. He further testified that she did not give
him the $1,000 she withdraw in January and February,
and that he first learned of these withdrawals in July.
While he testified that he remembers these events very
clearly, his wife testified that as a result, apparently, of
an industrial accident, he is at times forgetful. Indeed,
Otero has been under some kind of a temporary work-
men's compensation disability.
According to Berrios, when Otero asked her to make
the withdrawals, she did so signing both his name and
her's (he cannot read or write and can barely sign his
name) on the withdrawal slip. The policy of the Re-
spondent is to give cash for less than $50() but where the
withdrawal is for more than $500, a check is issued
signed by the administrator. Thus, when Berrios with-
draw the $600 in February, the fact that she was making
the withdrawal on the account of Otero was known to
the administrator, even if management had not known
about the previous withdrawal of $400.
When Otero claimed in July that his account was
short by $1,000, without investigating the matter or in-
terviewing Berrios, the Respondent gave him credit for
that amount, but advised him that, should it turn out that
Berrios was not guilty of having taking the money with-
out authorization, he would have to pay it back.
Following this event, Berrios, first by herself and then
with others including counsel for the Union, visited the
Otero residence to inquire concerning this matter. The
testimony of the Union's attorney, which I credit, is to
the effect that Otero and his wife did admit that he had
given authorization to Berrios to withdraw the money
and that he had in fact received it.
Many aspects of this matter are very curious. For in-
stance, Berrios contends that Otero sought to repay the
$1,000 in October by giving her two workmen's compen-
sation checks of $90 each, one dated February the other
April, which her then fiancee deposited it in a joint
checking account with her. That Otero gave Berrios the
two checks is not contested. Also the Respondent al-
5 I do not imply that the Respondent's legal contention is sound-that
had Marrero been justifiably discharged, employees would not have had
the right to seek his reinstatement
lowed an employee to make withdrawals on a member's
account without any evidence of authorization; and then
reimbursed the member for an alleged shortage without
any investigation. Nevertheless, from the testimony I
credit, I believe that in fact Berrios did have authoriza-
tion to make the withdrawals, did so, and gave the
money to Otero. I conclude she was not guilty of such
misconduct as to deny her continued employment. Ac-
cordingly, the Respondent shall be ordered to reinstate
Berrios along with the other discharged striking employ-
ees.
C. The 8(a)(1) Allegations
The General Counsel contends that in his June 18
letter Correa threatened the striking employees with dis-
charge if they continued to strike. Such is allegedly vio-
lative of Section 8(a)(l). It is clear from the contents of
the letter that in fact employees were threatened and I
thus conclude that the Respondent violated Section
8(a)(l) as alleged.
The General Counsel also contends that the December
20 offer of reinstatement to five of the strikers was viola-
tive of Section 8(a)(l) in that reinstatement was condi-
tioned on their abandoning the strike. Having been un-
lawfully discharged, these employees were entitled to re-
instatement. However, the Respondent expressly limited
the time when they could take advantage of the offer to
January 13, 1981. Correa continued: "We must warn you
that if you do not present yourself on or before that day
to work we must conclude that you have no interest in
returning to work with us."
I therefore conclude that the December 20 offer of re-
instatement was conditional and in effect stated that
there would be no future employment unless the employ-
ees abandoned the strike. Such was a violation of Section
8(a)( ) and did not serve to toll backpay liability as to
these five. The Masonic and Eastern Star Home of the Dis-
trict of Columbia, 206 NLRB 789 (1973). 6
IV. TiE EFFECT OF IIHE UNFAIR l.ABOR PRACTICES
UPON COMMERCE
The unfair labor practices found above, occurring in
connection with the Respondent's business, have a close,
intimate and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof within the meaning of Section 2(6)
and (7) of the Act.
V. REMEDY
Having found that Respondent discharged striking em-
ployees in violation of Section 8(a)(l) and (3) of the Act,
it will be ordered to cease and desist from such activity
and to offer reinstatement to the discharged strikers to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions of employment and to
make them whole for any losses they may have suffered
as a result of the discrimination against them in accord-
6 The General Counsel's motion to withdraw par. 12(a) of the consoli-
dated complaint is granted.
1104
COOPERATIVA DE CREDITO Y AHORRO VEGABAJENA
ance with the formula set forth in F. W. Woolworth Com-
pany, 90 NLRB 289 (1950), with interest as provided in
Florida Steel Corporation, 231 NLRB 651 (1977). 7 Back-
pay commences from the date of their discharges, which
I find is, respectively, June 12, 1980, Milagros Santa and
Gertrudis Ramos; June 18, 1980, Francisco J. Marrero;
June 23, 1980, Juan F. Melendez, Luz S. Berrios, Lydia
E. Sierra, Luis S. Oliveras, Gil Colon Maldonado, Juan
U. Lozada Rivera, and Maria E. Renia; October 21,
1980, Georgina Gomez.
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this matter, and pursuant to
the provisions of Section 10(c) of the Act, I hereby issue
the following recommended:
ORDER8
The Respondent, Cooperativa de Credito y Ahorro
Vegabajena, Vega Baja, Puerto Rico, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against
employees because they have engaged in a lawful strike
or other concerted activity for their mutual aid or pro-
tection.
(b) Threatening employees with discharge or other re-
prisals because they engage in a strike or other concerted
activity for their mutual aid or protection.
(c) Conditioning reinstatement to discharged strikers
on their abandoning the strike.
(d) In any other manner interfering with, restraining,
or coercing employees in the exercise of rights guaran-
teed them by Section 7 of the Act.9
See, generally, Isis Plumbing & Heating Co., 138 NLRH 716 (19h2)
In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National l.abor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
9 This matter, particularly including the Respondent's failure to bar-
gain over a period of several months and its denial of recognition of the
Union until such time as the contract is signed, along with the discharge
of strikers, lead me to believe that broad injunctive relief is necessary to
2. Take the following affirmative action:
(a) Offer immediate reinstatement to Francisco J. Mar-
rero, Juan F. Melendez, Luz S. Berrios, Lydia E. Sierra,
Luis S. Oliveras, Gil Colon Maldonado, Juan U. Lozada
Rivera, Maria E. Renia, Milagros Santa, Gertrudis
Ramos, and Georgina Gomez to their former jobs or, if
those jobs no longer exist, to substantially equivalent po-
sitions of employment and make them whole for any
losses they may have suffered as a result of the discrimi-
nation against them in accordance with the formula set
forth in the remedy section above.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its Vega Baja, Puerto Rico, facility copies
of the attached notice marked "Appendix."°o Copies of
said notice written in English and Spanish, on forms pro-
vided by the Regional Director for Region 24, after
being duly signed by the Respondent authorized repre-
sentative, shall be posted by the Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for Region 24, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
cffectuate the policies of the Act See Hickmort i(x-d Inc., 242 NLRB
1357 (1979).
"' In the event that this Order is enforced by a Judgment of a United
States Court lof Appeals, the words in the notice reading "Posted by
Order of the National L.abor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
1105