Minnesota de Puerto Rico, Inc.

National Labor Relations Board - Board Decisions

Oct 30, 1974

214 N.L.R.B. 468 (N.L.R.B. 1974)

468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Minnesota (3M) de Puerto Rico , Inc. and SIU de
Puerto Rico, Caribe y Latinoamerica, afiliada a la
Seafarers International Union of North America,
AFL-CIO. Case 24-CA-3422
October 30, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On June 21, 1974, Administrative Law Judge Leo-
nard M. Wagman 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.
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 and hereby
orders that the Respondent, Minnesota (3M) de
Puerto Rico, Inc., San Juan, Puerto Rico, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
DECISION
STATEMENT OF THE CASE
LEONARD M. WAGMAN, Administrative Law Judge: upon
a charge filed by SIU de Puerto Rico, Caribe y Latinoam-
erica, afiliada a la Seafarers International Union of North
America, AFL-CIO (herein called the Union), the General
Counsel of the National Labor Relations Board issued a
complaint on January 23, 1974, which was amended at the
hearing, alleging that Minnesota (3M) de Puerto Rico
(herein called the Company) had engaged in unfair labor
practices violative of Section 8(a)(1) and (3) of the Nation-
al Labor Relations Act, as amended (referred to herein as
the Act). Specifically, the amended complaint alleged that
the Company had violated Section 8(a)(1) of the Act, by
creating the impression that it was engaging in surveillance
of its employees' union activity, threatening employees
with discharge, loss of benefits and adverse working condi-
tions if they supported the Union, coercively interrogating
employees concerning their union activity and attitudes,
promising and granting employees benefits to induce them
to refrain from engaging in union activity. The complaint
also alleged that the Company violated Section 8(a)(3) and
(1) of the Act by discharging employees Jose Aviles, Ra-
monita Marrero, Nestor Rivera, Miriam Terwilliger, and
Wilfredo Souchet on October 5, 1973,1 because of the their
union activity. At the hearing I granted General Counsel's
motion to withdraw so much of the amended complaint as
alleged that the Company granted benefits in violation of
the Act.
In addition to denying the commission of the alleged
unfair labor practices, the Company contended that it was
deprived of administrative due process by the conduct of
the Board agent investigating the unfair labor practice
charge underlying the complaint herein. The Company's
answer as amended at the hearing, denied the alleged viola-
tions. A hearing was held at Hato Rey, Puerto Rico, on
February 26, 27, 28, and March 1, 1974.
Upon the entire record in the case, including my obser-
vation of the demeanor of the witnesses, and upon consid-
eration of the posthearing briefs submitted by the Compa-
ny and the General Counsel, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The Company is a Puerto Rico corporation with its of-
fice and place of business at San Juan, Puerto Rico, and is
engaged in the sale and distribution of magnetic and indus-
trial tapes, abrasives, adhesives, office products, medical
products and various other products. During the past year,
the Company purchased and caused to be delivered to its
San Juan location, from points outside Puerto Rico, goods
and materials valued in excess of $50,000.
It is not disputed, and I find that the Company is an
employer within the meaning of Section 2(2) of the Act,
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The Company admitted , and I find, that SIU de Puerto
Rico, Caribe y Latinoamerica, afiliada a la Seafarers Inter-
national Union of North America , AFL-CIO , is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED DENIAL OF ADMINISTRATIVE DUE PROCESS
The Company complains that on October 19 its then
general manager, James D. Lewers, and its financial man-
ager, Francisco Gonzales were summoned to the Board's
Hato Rey office, without notice of the unfair labor practice
charge in this case; that both Company officials were com-
pelled to remain at the Board office for 5 hours, and that
Lewers had no opportunity to confer with counsel or labor
relations officers of the Company's parent, Minnesota
Mining and Manufacturing Company. All of this, accord-
1 Unless otherwise stated all dates hereinafter refer to 1973
214 NLRB No. 78
MINNESOTA (3M) de PUERTO RICO, INC
Ing to the Company's answer to the complaint impaired its
ability to "adequately present its position and prepare its
defense in the course of the investigation by the Regional
Office . . . of the unfair labor charge in the matter." The
following account of the incident is undisputed.
At or about 9:30 a.m. on October 19, 2 days after the
unfair labor practice charge in this case had been filed and
before the Company had received notice, Mr Chandri, a
field examiner assigned to the Board's Hato Rey office,
telephoned the Company's San Juan office and asked Lew-
ers and Gonzalez to come to his office that same morning.
The two company officials complied. They appeared at
Chandri's office at 11 o'clock that morning, together with a
company attorney. After providing Lewers with a copy of
the charge, Chandri asked him if he wished to make a
statement, then or later, regarding the matters alleged in
the charge. Lewers declared that he wanted to give a state-
ment immediately "[b]ecause the truth is the same now as
it would be at a later time." Whereupon, Chandri began
taking Lewers' statement in the presence of company coun-
sel. Gonzalez agreed to wait outside of Chandn's office
while Lewers was giving his statement
At 1 p.m., Lewers asked Chandri for a lunchbreak.
Chandri said "No," adding that they would "be through in
dust a minute." Lewers made similar requests at 2 and 3
p.m. only to receive the same response each time. Gonzales
also remained outside Chandn's office. At 4 p.m, Chandri
completed the taking of Lewers' statement, and asked Lew-
ers to read and sign it. Lewers complied Whereupon Lew-
ers, Gonzales, and the Company attorney left the Board
office. It also appears that as of that date, the Regional
office was in the early stage of taking affidavits from the
Charging Party's witnesses.
I find nothing in the foregoing to sustain the Company's
contention that it was denied administrative due process
by Chandri's conduct. While Chandri may have departed
from accepted norms of social conduct by saying "No" to
Lewers' repeated requests for a lunch break, I see no
ground for the Company's claim that his conduct preju-
diced its defense. Lewers in the presence of Company
counsel freely volunteered to give Chandri an affidavit af-
ter receiving a copy of the unfair labor practice charge in
this case. Further, there is nothing to suggest that Lewers,
Gonzales, and the Company's attorney were not free to get
up and leave Chandri's office at will, despite the Board
agent's expressed negative sentiment in that regard. In-
stead, they remained. In short, the Company's contention
is wholly without merit.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Interference, Restraint, and Coercion
In May 1973, Company employees who were dissatisfied
with their wages and their supervisors began an organizing
campaign among themselves to obtain the Union as their
bargaining representative. Following a series of three meet-
ings within a 12-day period in June, between General Man-
ager Lewers and three groups of seven or eight employees
each, at which the employees' complaints were aired, union
activity ceased. However, in mid-September, the employees
469
became disgruntled over the Company' s response to their
complaints and resumed their organizing activity on behalf
of the Union.
The Company' s initial response to the Union activity
occurred when Supervisor Hugo Rivera summoned em-
ployee Nestor Rivera 2 to his office in late May for a dis-
cussion of the employees' union activity.3 Hugo began by
telling Nestor that he had heard rumors about a union
trying to organize the Company. Hugo then asked Nestor
if he knew anything about the Union activity. Nestor re-
plied that he knew nothing about it. Hugo then proffered
the advice to Nestor that: "For your own good stay away
from them people . . [a]nd don't have anything to do
with them." The context in which this advice was given
rendered it a thinly veiled threat of reprisal by the Compa-
ny if the employee supported the Union. Accordingly, I
find this threat violative of Section 8(a)(1) of the Act. Smith
& Wesson, 174 NLRB 1040, 1045 (1969), enfd. 424 F.2d
1072 (C.A. 1, 1970). I also find that the interrogation ac-
companying this unlawful threat was also violative of Sec-
tion 8(a)(1). Teknor-Apex Co., 195 NLRB 385, 392 (1972),
enfd. 468 F.2d 692 (C.A. 1, 1972).
In early June, Nestor Rivera, acting as the employees'
spokesman requested and was granted an opportunity to
discuss grievances with General Manager Lewers in the
latter's office." Rivera stated that the "employees want to
put a union into the Company and they have a lot of com-
plaints and they are not even being heard." Lewers asked
what complaints he was referring to. Rivera replied that
wages and the supervisor were the matters troubling the
employees. Lewers replied: "Well as for wages, there is a
survey that is being conducted to revise the salaries of the
employees." The general manager also remarked that the
Company was trying to be one of the "10 top companies in
Puerto Rico " Lewers then expressed the desire that the
employees "hold off about the union activities for 60 days
at least until the survey could be completed . .." Later
in the conversation, Lewers asked Rivera, "Do you know
how much you are paying for your medical benefits?" Riv-
era replied: "No, not really." Lewers explained: "Well, you
are not paying anything and as a matter of fact if the union
comes in you'll lose those benefits." Lewers then ended the
conversation by telling Rivera of the value of the
Company's medical benefits and its other benefits.
Lewers remarks about the Company's wage policy and
the wage survey together with his expressed hope that the
employees would suspend their union activity pending the
survey's completion violated Section 8(a)(1) of the Act.
For, here indeed, was an implied promise aimed at fore-
stalling the employees' quest for union representation.
2 The two Rivera 's are not related
3 Supervisor Rivera denied interrogating or threatening Nestor Rivera
However, Supervisor Rivera admits having a conversation with Nestor Ri-
vera at about this same time In light of the circumstance and my impres-
sion that Nestor Rivera was more candid and forthright , I have rejected
Supervisor Rivera's denial
My findings as to this incident are based upon Nestor Rivera's testimo-
ny Lewers denied that he made any threats or promises to his employees
However, Lewers unlike Nestor Rivera, was an evasive, reluctant witness,
particularly when examined as to his antiunion activity and his sources of
information regarding the employees ' union activity Therefore , I have not
credited his denials in this regard
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Vaughan Printers, Inc., 196 NLRB 161, 164 (1972). Lewers'
warning to Rivera that the advent of the Union would pre-
cipitate loss of the employees' medical benefits, provided at
that point by the Company, also violated Section 8(a)(1) of
the Act. The Great Atlantic & Pacific Tea Co., Inc., 194
NLRB 774, 778 (1971), enfd. 80 LRRM 2902 (C.A. 4,
1972).
During the same period, Company General Sales Man-
ager Luis Recurt approached employee Jose Aviles, a lead-
ing union activist, at the latter's work station and directed
him to Recurt's office.5 Aviles complied with Recurt's di-
rection. Once in his office, Recurt began, saying he had
singled out Aviles because of rumors that the employees
wanted to unionize and that Aviles was one of the leaders
in that effort. Recurt then asked Aviles if he was one of the
leaders of the union activity. Aviles answered that he had
heard rumors about union activity, but denied leadership
in the organizing drive. At this, Recurt asked Aviles about
the employees' problems. Aviles reported that low salaries,
supervision and other matters were troubling the employ-
ees. Recurt then stated that the Company' s management
would "see if they could solve the problems," adding that
the employees should "try to hold the problems of the
union for a while to see what [management] resolved." I
find the circumstances surrounding Recurt's inquiry into
Aviles' union activity coercive. The questioning occurred
in the privacy of the general sales manager's office and
without the assurance that reprisals would not be taken
against Aviles if in fact he was a leading union activist.
Further, the Company evidenced its hostility toward the
employees' organizing campaign by engaging in a number
of unfair labor practices as found herein, including the sub-
sequent discharges of Aviles and four other prounion em-
ployees. Accordingly, I find Recurt's interrogation of
Aviles violative of Section 8(a)(1) of the Act. N.L.R.B. v.
Sandy's Stores, Inc., 398 F.2d 268, 270 (C.A. 1, 1968), enfg.
163 NLRB 728 (1967).
I also find that Recurt's remarks to Aviles included a
solicitation of employee grievances and an implied promise
that the Company would soon rectify such grievances. As
Recurt also made clear that his solicitation and implied
promise were designed to interfere with the employees'
union activity, I find these remarks violated Section 8(a)(1)
of the Act. Shulman's Inc. of Norfolk, 208 NLRB 771
(1974).
The credited testimony of Aviles and Nestor Rivera
shows that later in June, Recurt invited them and five or
six other employees to one of the three meetings held by
General Manager Lewers with small groups of employees.
At this meeting , Lewers revealed that he had heard rumors
that the employees were seeking union representation. He
also asked them to present their problems to him. In re-
sponse, Aviles rose and presented the employees com-
plaints about wages and the supervisors. In the course of
5 My findings as to this incident are based upon Jose Aviles' testimony
The reliability of Recurt's testimony was opened to question by his evasive
answers and his self-contradiction It appeared that he was carefully avoid-
ing testimony which might incriminate the Company In contrast Aviles
testified in a straightforward manner
Accordingly , to the extent their versions of their encounter conflict, I
have credited Aviles
the meeting, General Sales Manager Recurt stated that if
the employees' organizing drive succeeded, the Company
would discontinue its practice of permitting the salesman
to keep company automobiles overnight .6 Instead, the
Company would require them to pick the vehicles up at the
Company's premises at 8 a.m. and return them at 5 p.m.
daily.
Lewers remarked that the doors to his office were always
open to the employees for their problems, but if a union
came in, such problems would be discussed "with a third
person." Finally, Lewers told the employees that the Com-
pany was conducting a wage survey to increase their sala-
ries and asked them to give the Company time to solve the
problems, and to "leave pending the matter of the [U]n-
ion." I find that Lewers' remark that he was available to
employees for discussion of their "problems," when viewed
in the surrounding circumstances was but another of the
Company's invitations for employee grievances. His state-
ments regarding the "wage survey to increase the salaries"
was a repetition of the Company's earlier implied promises.
His request that the employees suspend their union activity
supplied the antiunion purpose of the invitation and the
implied promise. Accordingly, I find Lewers invitation for
grievances and his implied promise of wage increases viola-
tive of Section 8(a)(I) of the Act.
In the latter part of June, Supervisor Luis Sanchez in-
formed Aviles that the Company had granted him a wage
increase effective the next pay day. When Aviles expressed
satisfaction with the increase, Sanchez asked him whether
the employees would persist in their union activity. In view
of its coercive circumstances, as previously shown, I find
this inquiry into the employees' union sentiment also vio-
lated Section 8(a)(1) of the Act.7
During this same period in June, Company Superinten-
dent Emilo Berrios summoned employee Ramonita Marre-
ro a leading union partisan, to a room in the Company's
warehouse, where he stated: "Back there they told me that
you were the leader of all this union movement. I said that
I didn't believe that of you." He then asked if the employ-
6 Nestor Rivera also credibly testified that Recurt threatened discharge
for any salesman caught "signing a card or talking about unions " However,
there is no allegation in the amended complaint that Recurt made any
unlawful threat at this meeting Further , in view of my other findings of Sec
8(a)(1) violations , an additional finding based upon this incident would add
nothing to the remedy. Accordingly, I have not made any findings or con-
clusions based upon this portion of Rivera's testimony
Sanchez' testimony regarding his knowledge of union activity is
marked by evasion and contradiction For instance , on cross-examination
Sanchez initially admitted telling Aviles and other employees who came to
him that the Union was bad Thereafter, on further examination, he denied
discussing the Union with any employee or any fellow supervisors In light
of the Company's manifest concern about the employees' involvement with
the Union and the frequent discussions between management and the em-
ployees during this period, Sanchez' denial does not persuade me Consider-
ing the foregoing, and my favorable impression of Aviles, I have based my
findings as to this incident upon Aviles' testimony, and have rejected San-
chez' denial
8 Berrios testified that he talked to Marrero about the Union in June
However. Berrios denied Marrero's version of their encounter Marrero im-
pressed me as a generally forthright witness In contrast, Berrios' testimony
is rendered suspect by his evasive answers , his denial that he spoke to any-
one from the Company about his testimony prior to his appearance as a
witness on its behalf , and his denial that he provided the Board with a sworn
statement This last assertion was belied by the introduction of Berrios'
affidavit given to Board Field Examiner Chandra on October 29
MINNESOTA (3M) de PUERTO RICO, INC 471
ees had told Lewers of their problems. After Marrero had
answered Berrios' last question , he warned her as follows:
The company is working at the present time from
Monday until Friday only. You know that legally we
could also work half a day Saturdays, we could also
use a punch clock, which we don't use. There are
many benefits that the Company gives you that you
would lose and besides it would be the only 3 M 9 in
the world that has a union.
At this, Marrero asserted that she was only the spokesman
for the employees who came to her for help and that she
felt obliged to provide that help. At this, Berrios warned:
"Think it over because there may be disadvantages for the
employees ." I find from Marrero's undisputed testimony
that by his reference to "back there" Berrios meant the
Company's management . I also find that when that ingre-
dient was added to Berrios' statement regarding Marrero's
union activity , the employee was quite likely to gain the
impression that the Company was keeping her union activ-
ity under surveillance . By creating that impression, I find
Superintendent Berrios violated Section 8 (a)(1) of the Act.
Commerce Concrete Company, Inc., 197 NLRB 658 (1972).
I also find that Berrios' warning, quoted above , carried
the unmistakable message that the Company would impose
more onerous working conditions and eliminate employ-
ment benefits if the employees succeeded in their efforts to
obtain union representation . By these warnings , the Com-
pany violated Section 8(a)(1) of the Act N.L R.B. v. Pio-
neer Plastics Corp., 379 F.2d 301, 304 (C A. 1, 1967), cert.
denied 389 U.S. 929 (1967).
Employee Miriam Terwilliger credibly testified that in
July, Supervisor Luis Sanchez asked her if she had com-
plaints against the Company, aside from her salary, and
what she "thought about the Union " Terwilliger replied
she had worked for a unionized company in the United
States "and they appeared to be satisfied with it," but that
"in Puerto Rico [she] really had not gone too much into it."
Again , the surrounding circumstances rendered Sanchez'
inquiry into Terwilliger 's union sentiment violative of Sec-
tion 8(a)(1) of the Act.
In mid-August, Superintendent Berrios acted as inter-
preter for a 3 M official from St Paul, Minnesota, in a
discussion of the employees' union sentiment with Assis-
tant Warehouse Supervisor Antonio Irizarry 10 The official
speaking through Berrios asked Irizarry why the
Company's employees wanted the Union and if he knew
anyone who was active in the union activity Berrios, on his
own, asked if employee Aviles had "told [Irizarry]any-
thing." Irizarry answered no. Berrios then asserted his own
knowledge that Aviles was involved in the Union activity,
that he "was the strongest leader of the Union" and that he
had learned that Aviles had been discharged by another
employer for similar activity. However, Irizarry's credited
and undisputed testimony also shows that as assistant
9 A reference to the Company 's parent , Minnesota Mmmg and Manufac-
turing Company
10 My findings as to this incident are based upon Irizarry's testimony
warehouse supervisor he was "[p]ractically ... in charge"
of the 10 employees in the warehouse, that he assigned
them work, adjusted their grievances and had authority to
reprimand employees "for failure to carry out instruc-
tions." Thus, I find that at the time of this encounter with
Berrios, Irizarry was a supervisor within the meaning of
Section 2(11) of the Act. Pacific Southwest Airlines, 201
NLRB 647 (1973). As a supervisor, Irizarry was unprotect-
ed by Section 7 of the Act. Therefore, Berrios' questions
and remarks to Irizarry, regarding the union activities of
Aviles and other employees did not violate Section 8(a)(1)
of the Act as alleged in the complaint . Jif-E-Mart, 205
NLRB 1076 (1973).
B. The Alleged Discriminatory Discharges
1. The facts
(a) Jose Aviles
Aviles' credited testimony relating to his employment
history and union activity is undisputed . The Company
hired Jose Aviles on December 4, 1972, and thereafter, un-
til his discharge on October 5, employed him as a sales
correspondent under the immediate supervision of Luis
Sanchez . As a sales correspondent , Aviles' duties included
writing up customer orders for the Company products.
Aviles' starting monthly salary was $400.
On June 5, General Sales Manager Recurt presented
Aviles with the following letter and a check , after Aviles
had placed second in the first 6 months of a year-long
company sales contest:
Enclosed is the check for the prize you won during
the first six (6) months of the 1973 sales contest.
I wish to take this opportunity to, on behalf of man-
agement and on my own, congratulate you for excel-
lent work done by you and the results that your daily
efforts have produced.
I hope to be able to have the opportunity of com-
municating with you at the end of this contest , that is
to say, on October 31 of this year, because I know that
your consistent daily efforts will bring you future suc-
cess.
In mid-June , the Company raised Aviles' salary to $450 per
month , which remained his pay rate until his discharge.
In May, a company salesman , Vissepo, gave Aviles some
union authorization cards for distribution in Aviles' de-
partment . Aviles distributed groups of cards to several em-
ployees for solicitation of signatures , and also solicited em-
ployees' signatures. Following the June meeting between
Lewers and the employees , Aviles and the other union ad-
vocates suspended their union campaign "to wait and see"
if the Company would satisfy the employees' requests for
salary increases and improved supervision.
On two or three occasions in May, Aviles discussed his
union sentiment and his union activity with the Company's
Abrasive Department supervisor, Pablo Ross. Aviles dis-
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
closed that he and his associates were soliciting employee
signatures on union authorization cards."
As found above , in June, General Sales Manager Recurt
questioned Aviles about his role in the union activity and
used the same conversation to solicit employee grievances
and impliedly promise satisfaction of those grievances.
Approximately 1 week after his discussion of the Union
with Recurt, Aviles attended one of General Manager
Lewers' employee meetings . Aviles was the first to respond
to Lewers ' solicitation of employee grievances at this meet-
ing. As I have also found above, in late June Supervisor
Luis Sanchez asked Aviles whether the employees were
continuing with their union campaign . Aviles answered in
substance that the employees had been seeking union rep-
resentation to help them solve their problems with the
Company, and that if the Company solved the problems,
the employees would abandon their union activity.
Aviles credibly testified that in a conversation in mid-
September Aviles told Supervisor Pablo Ross that the em-
ployees had resumed their union campaign because of the
Company's failure to satisfy the employees' complaints.
Whereupon Ross warned that further discussion of the
union campaign would lead to dismissals.12
I also find from Aviles' testimony that on October 4,
Supervisor Luis Sanchez, Aviles, and employee Angel Luis
Martinez discussed an overtime problem and the resump-
tion of the employees' union activity. When the latter sub-
ject surfaced in the conversation , Sanchez warned Aviles
that he and the employees should "leave the matter of the
union and of the overtime quiet because what [Aviles] was
going to get was that [they] would all be fired." 13
At or about 10.30 a.m., on October 5, Supervisor San-
chez asked Aviles to accompany him to General Sales
Manager Recurt's office. After the two entered the office,
Recurt informed Aviles that "the [C]ompany had been ob-
serving [Aviles'] work and wasn't satisfied with it, that they
had had complaints from customers, that [Aviles] usually
came in late to the [C]ompany and that the [C]ompany had
decided to dismiss [him]." Aviles responded that he "knew
that the reason for firing [him] was not that but that [A-
viles] was not going to gain anything by discussing [it] with
[Recurt]." Recurt, and Sanchez, who had witnessed the en-
tire exchange in silence, made no reply to Aviles. Recurt
gave Aviles a check, and Aviles left the office. Before leav-
ing the Company's premises, Aviles passed Supervisor San-
chez, who said, "See, I told you." 14
Nestor Rivera testified that he was present when Aviles
encountered Supervisor Sanchez at a social gathering
about 1 week after Aviles' discharge. According to Rivera,
Sanchez disclaimed any part in Aviles' discharge and
praised Aviles' work. In his testimony, Sanchez admitted
11 My findings regarding Aviles' discussions with Supervisor Ross in May
are based upon Aviles ' testimony Ross denied ever discussing union mat-
ters with Aviles However , he did not deny having conversations with Aviles
in May Of the two, Aviles seemed more conscientious about presenting his
full recollection
12 Aviles' testimony regarding this incident was substantially corroborat-
ed by employee Angel Luis Colon who witnessed the conversation
i3 Employee Martinez substantially corroborated Aviles' testimony re-
garding Sanchez ' warning
14 My findings as to the events of October 5 are based upon Aviles' cred-
ited testimony
meeting Aviles at the social gathering but denied discuss-
ing Aviles ' discharge . However , Sanchez also admitted that
he was surprised by Aviles' discharge on October 5 and did
not even recommend such action . Considering my prior
appraisal of Sanchez ' testimony , the likelihood that Aviles'
very recent discharge would have been a subject of discus-
sion , and Sanchez ' admissions , I have rejected his denial
and have accepted Nestor Rivera 's version of the incident.
(b) Ramonita Marrero 15
The Company hired Ramonita Marrero on November
23, 1970, and discharged her on October 5. She was em-
ployed as a secretary to Emilio Berrios, the Company's
superintendent of factory services. Her starting monthly
salary was $320. In July, the Company granted a $30
monthly raise to Marrero. At the time of her discharge
Marrero's monthly salary was $416.
Marrero's union activity began in May, when she re-
ceived authorization cards from Aviles which she distribut-
ed to fellow employees Marrero attended one of General
Manager Lewers' June meetings. She was one of the em-
ployees who responded to Lewers' inquiry regarding em-
ployee problems.
As found above, later in June , Superintendent Berrios
told Marrero that Company management believed that she
was the leader of the employees ' union activity. I have also
found above that in the same encounter, Berrios warned
Marrero that the Company might impose more onerous
working conditions and withdraw benefits if the employees
insisted upon union representation . At this, Marrero assert-
ed that she was only the spokesman for those employees
who sought her help. Berrios ended this exchange with a
further warning of possible "disadvantages for the employ-
ees."
At the end of June, Marrero headed a small group of
employees who met with General Manager Lewers in his
office. Marrero told Lewers that the group wished to pre-
sent their work problems to him. After Lewers agreed to
listen , each of the group presented his or her problem.
Marrero ended the employees ' presentation with a brief
statement asking Lewers to help them. Lewers responded
that he appreciated the employees ' sentiments , that he was
always available to them and that he did not "believe in
third parties."
In mid-September Marrero resumed her solicitation of
signed union authorization cards. According to Aviles, she
and Nestor Rivera "were in charge of picking up the
cards." On October 5, at about II a.m., Superintendent
Berrios asked Marrero to accompany him to an empty of-
fice where he told her he had "a regretful matter" to tell
her. When Marrero sought explanation , Berrios answered
that her "work with the Company is up today " Berrios
continued:
I have here the two checks, one month to advance and
for the work that you have done during this month
and for accumulated vacation These are the things
that I don't like to do but I always have to do. I know
15 Except as otherwise stated my findings regarding Marrero's discharge
are based upon her credited testimony
MINNESOTA (3M) de PUERTO RICO, INC.
that because of your qualities you can get anotherjob
or a job more satisfactory, I am very sorry, God bless
you.
He also asked her that:
When you go some other place to work and you don't
like the norms of management or the rules of the
Company, before talking, leave.
(c) Nestor Rivera
The Company hired Nestor Rivera on March 13, 1972,
as a kardex clerk, at a monthly salary of $340. Rivera re-
mained in that position until his discharge on October 5.
His monthly salary at the time of discharge was $400. He
received a $35 monthly wage increase around the begin-
ning of January and a $25 monthly wage increase in April
Nestor Rivera's union activity began in May when he
received some authorization cards from Marrero and
Aviles. Rivera distributed the cards to employees at work
and at their homes, in May and in June. As found above,
in late May, Supervisor Hugo Rivera asked Nestor Rivera
if he knew anything about a union organizing campaign,
and then advised Nestor: "For your own good, stay away
from them people." In June, as found above, Nestor Rivera
acted as the employees' spokesman in a meeting with Gen-
eral Manager Lewers. Rivera warned Lewers that the em-
ployees were seeking union representation as a solution to
their complaints against the Company. I have also found
that in the discussion of employee problems at this meet-
ing, Lewers asked that the employee suspend their union
campaign for 60 days to permit the Company to complete
a wage survey. Later in June, Nestor Rivera attended an
employee meeting called by Lewers, at which General
Sales Manager Recurt threatened withdrawal of automo-
bile privileges in reprisal for the salesmen's support of the
Union. Upon hearing Recurt's threat, Rivera rose and re-
minded Lewers and Recurt that the Company stood to lose
sales by such action.
According to Nestor Rivera's credited and unchallenged
testimony, in August, General Sales Manager Recurt asked
Nestor Rivera if he wanted to become a salesman. Rivera
answered yes. At this, according to Nestor Rivera's cred-
ited and undisputed testimony, Recurt stated that Rivera's
position change could not be effected until November 1,
but that in the meantime he could familiarize himself with
the Company's products by becoming a sales correspon-
dent. Rivera asked for and was granted a day to consider
the matter. It is also undisputed, and I find that, Nestor
immediately notified Supervisor Hugo Rivera of Recurt's
proposal, and offered to remain a kardex clerk until No-
vember 1, during which time Hugo could train Nestor's
replacement. Hugo thanked Nestor for his idea and sug-
gested that Nestor seek Recurt's approval. Nestor went to
Recurt who said that he would notify Nestor of the
Company's decision in the matter. That was the last Nestor
heard of his promotion to salesman
As previously found, Nestor shared responsibility with
Marrero for collecting signed union authorization cards
when the organizing drive resumed in mid-September.
473
At mid-morning on October 5, Supervisor Hugo Rivera
summoned Nestor Rivera to his office. As Nestor entered
the office, Hugo asked him to close the door and then said:
"I have bad news for you." When Nestor asked for an
explanation, Hugo continued: "Well, I'm sorry but you are
suspended from your duties as of today." Nestor asked if
that meant he was fired. Hugo answered, "Yes, the [C]om-
pany does not need your services." When Nestor asked:
"Why?" Hugh replied: "That's all I can tell you," and then
gave Nestor his terminal pay. 16 Nestor refused to accept
the proffered check and pressed Hugo for explanation of
the discharge. Hugo insisted he did not know why Nestor
was being discharged and suggested that Financial Manag-
er Francisco Gonzalez would know. However, according to
Nestor's credited and undisputed testimony, Gonzalez pro-
fessed ignorance of the reason for the discharge and insist-
ed that Nestor accept his terminal check.
Nestor next sought an explanation from General Man-
ager Lewers. 11 Lewers' response was: "Why, I don't know
what to tell you Nestor. You know we've been having a lot
of problems." At this, Nestor said in substance that he had
been discharged "because of the union." Lewers responded
with "Well, you know we've been having a lot of problems
and you've been signing too many papers." Lewers then
expressed regret that Nestor Rivera was leaving the Com-
pany, saying that "out of all the people that are leaving, it
hurts me most to see you go." Lewers also asked Nestor to
let him know how he was doing each week and finally
offered to help Nestor find another fob. Lewers agreed to
give Nestor a letter of recommendation and instructed him
to tell Gonzalez of Lewers' intention.
Nestor did not contact Gonzalez until the following
Monday.18 However, Gonzalez insisted that Nestor sign a
resignation in exchange for the letter of recommendation
When pressed by Nestor, Lewers supported Gonzalez in
the matter. Nestor refused to comply and he never received
the letter of recommendation.
(d) Miriam Terwilliger 19
The Company hired Terwilliger as a sales correspondent
on January 15, at a monthly salary of $300. She remained
a sales correspondent under Luis Sanchez' supervision un-
til her discharge on October 5. The Company granted her a
$50 monthly increase late in August. As found above, in
July, Supervisor Sanchez singled Terwilliger out for ques-
tioning about her union sentiment She replied that she had
"worked for a company that had a union and they ap-
peared to be satisfied with it," but that in Puerto Rico [she]
16 Supervisor Hugh Rivera's testimony largely corroborates Nestor
Rivera's version of their conversation on October 5 However, contrary to
Nestor Hugo testified that he advised Nestor that the tatter's "deficiency in
his work, his character" were the causes of discharge For the reasons previ-
ously stated , I have credited Nestor whenever their testimony was in con-
flict
17 Lewers' testimony largely corroborates Nestor's version of their Octo-
ber 5 conversation However, where their versions conflict, I have credited
Nestor Rivera
18 My findings regarding Nestor Rivera 's unsuccessful efforts to obtain a
letter of recommendation are based upon his undisputed testimony
19 My findings regarding Terwilliger's discharge are based upon her cred-
ited testimony
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
really had not gone too much "into it."
Late on the morning of October 5, Supervisor Sanchez
directed Terwilliger to General Sales Manager Recurt's of-
fice. There, in Sanchez' presence, Recurt told Terwilliger
that "[she] was no longer needed." At this, Terwilliger rose
and left. Approximately 1 week later Terwilliger encoun-
tered Supervisor Sanchez at the same social gathering at-
tended by Aviles and Nestor Rivera. Sanchez expressed
regret over her discharge and disclaimed any role in it, and
admitted that he had no inkling of it prior to Recurt's an-
nouncement on the morning of October 5.
(e) Wilfredo Souchet
The Company hired Wilfredo Souchet as a kardex clerk
on May 5, 1972, at a monthly salary of $300. Souchet re-
mained in that job under Supervisor Hugo Rivera, until
August 1972, when he became a numbers control clerk un-
der Luis Sanchez Thereafter, the Company granted Sou-
chet three monthly wage increases. The last, of $39, was
granted in July. At the time of his discharge on October 5,
Souchet's monthly wage was $407.
In May, Souchet received seven or eight union authori-
zation cards from Aviles, which he distributed to employ-
ees at their homes. Thereafter, he delivered some of the
signed cards to the Union. The following month, Souchet,
together with employees Terwilliger, Marrero, and other
employees, met with General Manager Lewers to discuss
matters troubling the employees.20
On the morning of October 5, General Sales Manager
Recurt instructed Souchet to go to Recurt's office where
Supervisor Sanches was waiting. When Souchet arrived at
Recurt's office, Sanchez told him:
I'm sorry, you are one of the discharged persons and I
don't know why but management has told me to tell
you that your work is going to the computer and that
we don't need your services. I know this is not the
reason and this has taken me by surprise 2i because I
imagined it about Aviles, Miriam and Ramonita Mar-
rero, but not about you.
Then, after wishing Souchet "good luck" and extending an
offer to help him, Sanchez shook his hand and gave Sou-
chet a check. At this Souchet left.22
2. Analysis and conclusions
The General Counsel contends that the Company dis-
charged employees Aviles, Rivera, Marrero, Terwilliger,
and Souchet because of their union activity. The Company
20 1 have not credited Souchet's testimony that Lewers threatened loss of
benefits at this meeting Souchet's testimony in this regard was contradicted
by his pretrial affidavit and was not corroborated by either Terwilliger or
Marrero However, as Souchet impressed me as a generally forthright wit-
ness , and his testimony was largely corroborated, I have otherwise credited
him
2i On cross-examination, Supervisor Sanchez admitted that he had no
advance notice of the decision to fire Souchet
22 My findings regarding Sanchez' statement to Souchet are based upon
Souchet's undenied testimony
seeks to defend the discharges, claiming that all five were
discharged for reasons unrelated to their union activity. I
find ample factual support for the General Counsel's con-
tention.
The Company's unlawful responses to the May-June
phase of the employees' organizing effort included a threat
of discharge addressed to Nestor Rivera. A similar warning
was directed at Aviles in mid-September when he told Su-
pervisor Pablo Ross of the renewal of the employees' union
activity. This warning I also find violative of Section
8(a)(1). However, the circumstances immediately sur-
rounding the five discharges are sufficient to reveal the
Company's unlawful design. On the evening of October 4,
Supervisor Sanchez reflected the Company's union animus
when he warned Aviles that his union activity would result
in discharges. This warning became reality the following
morning when the Company discharged union activists
Aviles, Rivera, Marrero, and Terwilliger in quick succes-
sion. Sanchez' warning, which was violative of Section
8(a)(1) provides strong evidence that the five discharges
which followed within hours constituted the Company's
answer to the employees' renewed union campaign.
Supervisor Sanchez provided even stronger evidence of
the Company's discriminatory motive when he told Aviles
"See, I told you," after the latter's discharge on October 5
Further, and more decisive, Sanchez' remarks as he dis-
charged Souchet that morning came close to being a con-
fession that Souchet, Aviles, Terwilliger and Marrero were
victims of the Company's effort to eradicate union activity.
Persuasive evidence that Nestor Rivera's discharge was
part of the same effort was provided in his exchange with
General Manager Lewers that same morning. For, when
Rivera raised his union activity as the reason for his dis-
charge, Lewers did not contradict him. Thus did Lewers
imply the truth of Rivera's assertion.
Review of the Company's defense reveals fatal infirmi-
ties which convince me of its pretextual nature. Initially, a
shadow is cast upon the Company's excuses by their shift-
ing and inconsistent nature. Thus, on October 5, Recurt
who had praised and rewarded Aviles exactly 4 months
earlier for his outstanding work, told Aviles that he was
being discharged because of unsatisfactory work, com-
plaints from customers, and lateness. But at the hearing,
his immediate supervisor, Luis Sanchez testified that cus-
tomer complaints were not a reason for Aviles' discharge,
that errors in delivery invoices were the only cause of his
discharge. General Sales Manager Recurt testified first that
the reasons for Aviles' discharge included his "attitude,"
"lack of responsibility," and "mistakes." Under cross-ex-
amination Recurt added "customer complaints." The
Company's brief to the Judge, claims that he was dis-
charged for inefficiency and unsatisfactory work and then
refers to record testimony by Company witnesses regarding
Aviles' invoice errors, absences and indifference to his
work. The brief makes no mention of "customer com-
plaints." Such uncertainty indicates a consciousness that a
convincing cover story is needed to mask an unlawful dis-
charge.
Although no reasons were given at the time of Marrero's
and Terwilliger's respective discharges, the Company
claims that Terwilliger was discharged for inefficiency, and
MINNESOTA (3M) de PUERTO RICO , INC 475
that Marrero's discharge was for inefficiency and unsatis-
factory work performance. At the hearing, for the first
time , and in its brief, the Company asserted that Nestor
Rivera was discharged for inefficient performance of his
kardex tasks and a disagreeable personality. Far from as-
sisting its defense , the Company's failure to give these rea-
sons to employees at the time of their respective discharges
suggests that they were afterthoughts.
A further weakness in the Company's defense are Super-
visor Sanchez' admission that he did not recommend the
discharges of Aviles, Terwilliger or Souchet and that he
knew nothing about them until the morning of October 5.
Lewers testified credibly that under Company policy, the
discharge of an employee is normally based upon the rec-
ommendation of the employee's immediate supervisor.
Here, although Sanchez was their immediate supervisor,
the Company did not even consult with him in reaching its
decision to discharge Aviles, Terwilliger or Souchet. This
departure from normal procedure indicates that the Com-
pany was not concerned about the quality of their perfor-
mance as employees when it decided to discharge them.
Further serious doubt is cast upon the Company's de-
fense by the granting of increases to Aviles, Marrero, Riv-
era and Terwilliger in the spring and summer of 1973. Gen-
eral Manager Lewers credibly testified that the Company
prepares an annual written performance appraisal for each
employee, that if such appraisal is not complimentary the
employee's immediate supervisor discusses it with the em-
ployee; and, that all wage increases are based upon merit.23
Here, the Company produced no written appraisals to sup-
port its complaints against these four employees. Instead,
the record shows that they received increases based upon
merit during the very period when the Company claims
their performances were unsatisfactory.
The Company's complaints against Nestor Rivera exem-
plify the pretextual nature of its entire defense. According
to the Company, Rivera's poor work and bad personality
made his retention impossible. However, the facts are that
in August, the Company thought well enough of his per-
sonality to select Nestor Rivera to be a salesman, effective
November 1, and that Supervisor Hugo Rivera was glad to
have Nestor remain as a kardex clerk in the interim.
Finally, the proffered excuse for discharging Souchet
misses the point. The Company asserts that Souchet was
discharged "because of the elimination of his position as
numbers control clerk on October 1, 1973, when Phase II
of the [Company's] computer program was made effec-
tive." However, Souchet's undisputed and credited testi-
mony shows that on October 1, Supervisor Luis Sanchez
told him:
Learn these rejects from the computer because you are
the person who will be in-put man and out-put man of
the computer. Learn how to correct them so that you
can do them correctly.
23 In later testimony, Lewers sought to recant these admissions However,
this change of heart came after Lewers had heard a substantial portion of
the General Counsel's case-in-chief Accordingly, I have not credited Lew-
ers attempts to explain away or contradict his initial testimony regarding the
Company's wage policy
Souchet also credibly testified that thereafter, until Octo-
ber 4, Luis Sanchez instructed him on computer work with
the voiced expectation that Souchet would be promoted to
"in-put man" on a company computer. In my view, the
Company's excuse for discharging Souchet totally ignores
the fact that on October 1, he was being trained to partici-
pate in Phase II as a computer in-put man, and that such
training continued until October 4 without any hint that
Souchet had become superfluous for that job. The final
blow to the Company's cause is, of course, Supervisor San-
chez' admission on October 5, that this same excuse was a
pretext.
In view of the foregoing, I find that the Company violat-
ed Section 8(a)(3) and (1) when it discharged employees
Jose Aviles, Ramonita Marrero, Nestor Rivera, Miriam
Terwilliger, and Wilfredo Souchet.
CONCLUSIONS OF LAW
1. By unlawfully interfering with, restraining, and coerc-
ing the employees, as found herein, the Company has en-
gaged in unfair labor practices within the meaning of Sec-
tion 8(a)(1) of the Act.
2. By discharging employees Jose Aviles, Ramonita
Marrero, Nestor Rivera, Miriam Terwilliger, and Wilfredo
Souchet, the Company engaged in unfair labor practice
within the meaning of Section 8(a)(3) and (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
The recommended Order will contain the conventional
provisions in cases involving findings of interference, re-
straint, coercion and unlawful discharges, in violation of
Section 8(a)(1) and (3) of the Act. This will require the
Company to cease and desist from the unfair labor practic-
es found, to offer reinstatement with backpay to Jose
Aviles, Ramonita Marrero, Nestor Rivera, Miriam Terwil-
liger , and Wifredo Souchet and to post a notice to that
effect. In accordance with usual requirements, reinstate-
ment shall be to the five employees' respective former posi-
tions , or substantially equivalent positions, without preju-
dice to their seniority and other rights or privileges. Each
of the five discriminatees shall be made whole for any loss
of earnings each may have suffered by reason of the dis-
crimination against them, by payment to each of a sum of
money equal to that which he or she normally would have
earned from the date of the initial discrimination (October
5, 1973) to the date he or she is offered reinstatement by
the Company, less net earnings, if any, during such period,
to be computed in the manner prescribed in F. W. Wool-
worth Company, 90 NLRB 289 (1950), and Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER 24
The Respondent, Minnesota (3M) de Puerto Rico, Inc.,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in or activities on behalf
of SIU de Puerto Rico, Caribe y Latinoamenca, afiliada a
la Seafarers International Union of North America, AFL-
CIO, or any other labor organization, by discriminating in
any manner against any of its employees in regard to their
hire and tenure of employment, or any term or condition
of employment, because of their union membership, sym-
pathies, or activities.
(b) Coercively interrogating employees about their
union membership, activities or sympathies or the union
membership, activities, or sympathies of other employees.
(c) Creating the impression that the union activities of
its employees are under surveillance.
(d) Threatening discharge, loss of benefits or other re-
prisals because its employees engage in union activities or
express prounion sentiment.
(e) Promising employees improved conditions of em-
ployment to induce them to withdraw or withhold their
support from SIU de Puerto Rico, Caribe y Latinoamerica,
afiliada a la Seafarers International Union of North Amer-
ica, AFL-CIO, or from any other labor organization.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Offer Jose Aviles, Ramonita Marrero, Nestor Riv-
era, Miriam Terwilliger, and Wilfredo Souchet immediate
and full reinstatement to their respective former jobs or if
these positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
rights or privileges, and make each of them whole for such
loss of pay he or she may have suffered as a result of the
Company's discrimination against them, in the manner set
forth in the section entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination or copying, all payroll
records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary
to analyze the amount of backpay due under the terms of
this recommended Order.
(c) Post at its office and place of business at San Juan,
Puerto Rico, English and Spanish copies of the attached
notice marked "Appendix." 25 Copies of said notice, on
forms provided by the Regional Director for Region 24,
after being duly signed by Respondent's authorized repre-
sentative, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other ma-
terial.
(d) Notify the Regional Director for Region 24, in writ-
ing within 20 days from the receipt of this Decision, what
steps have been taken to comply herewith.
IT IS ALSO ORDERED that the complaint, as amended, be
dismissed insofar as it alleges violations of the Act not spe-
cifically found.
24 in the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
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
25 In the event that the Board's 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 be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership or activities on
behalf of SIU de Puerto Rico, Caribe y Latmoameri-
ca, afiliada a la Seafarers International Union of
North America, AFL-CIO, or any other labor organi-
zation by discriminating in any manner against our
employees in regard to their hire and tenure of em-
ployment , or any terms or condition of employment
because of their union membership, sympathies.
WE WILL NOT interrogate our employees about their
union membership activities, or sympathies , or about
the union membership , activities or sympathies of
other employees.
WE WILL NOT give the impression that the union ac-
tivities of our employees are under surveillance.
WE WILL NOT threaten our employees with discharge,
loss of benefits or other reprisals because they engage
in union activities or express prounion sentiment.
WE WILL NOT promise our employees improved con-
ditions of employment to induce them to withdraw or
withhold their support from SIU de Puerto Rico, Car-
ibe y Latmoamerica, afiliada a la Seafarers Interna-
tional Union of North America, AFL-CIO, or any
other labor organization.
WE WILL NOT in any like or related manner interfere
with , restrain or coerce any of our employees in the
MINNESOTA (3M) de PUERTO RICO, INC.
exercise of their rights to join or assist SIU de Puerto
Rico , Canbe y Latinoamerica , afiliada a la Seafarers
International Union of North America , AFL-CIO, or
any other labor organization.
The Board found that we discharged employees
Jose Aviles , Ramonita Marrero, Nestor Rivera, Mi-
riam Terwilliger, and Wilfredo Souchet because they
were for the Union , and that these discharges violated
the law . Accordingly , WE WILL offer these five employ-
477
ees reinstatement to their former jobs or to jobs sub-
stantially equivalent , without prejudice to their senior-
ity or other rights and privileges , and will make them
whole for any loss of pay they may have suffered be-
cause we discharged them, with interest at the rate of 6
percent per annum.
MINNESOTA (3M) DE PUERTO
Rico, INC.