Puerto Rico Distillers, Inc.

National Labor Relations Board - Board Decisions

Jun 20, 1975

218 N.L.R.B. 729 (N.L.R.B. 1975)

PUERTO RICO DISTILLERS, INC. 729
Puerto Rico Distillers, Inc. and Ismael Sanchez
Irizarry. Case 24-CA-3530
June 20, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
On January 30, 1975 , Administrative Law Judge
Arnold Ordman issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended; the
National Labor , Relations Board has delegated its
authority in this pfoceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings , fmdings,2 and
conclusions 3 of the Administrative Law Judge to the
extent found consistent herewith , and to adopt his
recommended Order as modified herein.4
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd, 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
3 We do not adopt the Administrative Law Judge's conclusion that
Respondent violated Sec. 8(aXI) of the Act by the remarks of Carlos
Troche, Respondent's sales supervisor in Mayaguez, to Federico Carbonell,
a regular salesman. The credited testimony discloses that, during the course
of a private, after-dinner conversation with Carbonell on July 16, 1974,
Troche stated that he would have to leave the Company if the salesmen
were ever to unionize . Troche also noted that one of the salesmen involved
with the Union was like a "brother to him." We find that Troche's remark
was an ambiguous statement winch could have merely reflected his personal
hesitation toward working with ' a union and surprise that his friend would
be involved with a union in view of their close relationship . However, there
is nothing in the record to indicate that this remark conveyed a warning that
Troche, as a supervisor, or any employee would be discharged as a result of
the organizational activities . We also note that Carlos Matta, Respondent's
vice president in charge of sales, at a July 31, 1974, 'meeting, assured
employees that they were free to engage in union activities . In view of the
ambiguous nature of Troche's comment , we find that a violation of Sec.
8(a)(1) of the Act has not been established and, therefore, we dismiss this
allegation of the complaint. We will modify the Conclusions of Law,
recommended Order, and notice, accordingly.
4 1espondent has excepted to the Administrative Law Judge's directive
contained in his recommended Order that it post a copy of the notice at its
principal plant and all district offices in addition to the Mayaguez sales
office. Since no unfair labor practices were committed at Respondent's
other locations , we agree that the posting requirement should be limited to
the Mayaguez sales office and we shall modify the Administrative Law
Judge's recommended order accordingly.
APPENDIX
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 3 of
the Administrative Law Judge's Decision:
"3. Respondent did not violate Section 8(a)(1) of
the Act by the remarks,of Carlos Troche to Federico
Carbonell on July 16, 1974."
ORDER
'Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that Respondent,
Puerto Rico Distillers, Inc., Mayaguez, Puerto Rico,
its officers, agents, successors, and assigns, shall take
the action set . forth in, the Administrative Law
Judge's recommended Order as modified:
1. Delete paragraph 1(b) of said recommended
Order and ieletter remaining paragraph accordingly.
2. Substitute the following sentence for the first
sentence in paragraph 2(c)':
"Post at its Mayaguez district sales office, in both
English and Spanish, copies or translations of the
attached notice marked `Appendix.' 7"
3. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
i We have treated Respondent's motion for reconsideration as a
supporting brief.
2 The 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
credibility unless the clear preponderance of all of the relevant evidence
218 NLRB No. 115
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage organizational activi-
ties among our employees by discharging or
otherwise discriminating against any of our
employees.
WE WILL NOT interfere in any other manner
with the right of our employees to organize or
bargain collectively, or, to refrain from such
activities.
WE WILL offer Ismael Sanchez Irizarry his old
job back or, if that job no longer exists, a
substantially equivalent position, and we will pay
him for earnings he lost as a result of his
discharge.
PUERTO Rico
DISTILLERS, INC.
DECISION
STATEMENT OF THE CASE
ARNOLD ORDMAN, Administrative Law Judge: Pursuant
to unfair, labor practice charges filed on August 9 and
October 4, 1974, by Ismael Sanchez Irizarry, herein called
Sanchez, General Counsel issued a complaint on October
8, 1974, against Puerto Rico Distillers, Inc., Respondent
herein. The complaint alleged in substance that Respon-
dent on two separate occasions warned its employees to
refrain from organizational activities on pain of discharge
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or other reprisals, thereby violating Section 8(a)(1) of the
National Labor Relations ' Act, as amended; and that
Respondent discharged its employee, Sanchez, because of
his organizational and other protected concerted activity,
thereby violating Section 8(a)(3) and (1) of the Act.
Respondent denies the commission of unfair labor prac-
tices.
Hearing on the controverted issues was conducted before
me in Hato Rey, Puerto Rico, on November 5 and 6, 1974.
General Counsel presented oral argument at the close of
the hearing. Respondent submitted a written brief received
on December 5, 1974.
Upon the entire record, upon my observation of the
witnesses, and upon due consideration of the oral argu-
ment and the brief, I make the following:
FINDINGS AND CONCLUSIONS
1. JURISDICTION
Respondent, a Puerto Rico corporation, maintains a
distilling plant and place of business in Arecibo, Puerto
Rico, where it is engaged in the processing and distribution
of alcohol, alcoholic liquors, and related products. During
the past year, a representative period, goods and materials
valued in excess of $50,000 were purchased by and
delivered to Respondent from states of the United States to
its plant in Puerto Rico. Respondent admits, and I find,
that Respondent is an employer engaged in commerce
within the .meaning of Section 2(2), (6), and (7) of the Act.
Jurisdiction is properly asserted herein.
H. THE UNFAIR LABOR PRACTICES
A. The Evidence
General Counsel presented three witnesses in support of
the allegations of the complaint: Sanchez, the Charging
Party herein, alleged to have been discriminatorily dis-
charged; Federico Carbonell; and William Negron Zapata,
herein called Negron. All three were employed as regular
salesmen in Respondent's Mayaguez district, one of several
districts which Respondent operated in Puerto Rico for the
sale and distribution of its products. The employee
complement of the Mayaguez district consisted of seven
regular salesmen and three salesmen-at-large.
The testimony of Sanchez, Carbonell, and Negron as to
the general pattern of events here relevant, while differing
in pertinent detail in certain respects hereinafter noted, was
essentially consistent. Early in July 1974, a feeling of job
insecurity developed among the salesmen in the Mayaguez
district. This feeling was generated at a meeting of the
Mayaguez salesmen called by Andres Lugo, the district
manager. Sanchez, on vacation at the time, was called back
for the meeting. According to Sanchez, Lugo reported to
the assembled salesmen that Respondent's executive
officials had made a business review of Respondent's entire
sales force, including that of the Mayaguez district, and
that job insecurity was such that within a year neither he,
Lugo, , nor any of the salesmen would be on the job.
Sanchez coul& not recall whether, Lugo mentioned the
names of any specific salesmen at this meeting.
Carbonell confirmed that Lugo had met with the
Mayaguez salesmen but dated, the meeting somewhat
earlier than had Sanchez. According to Carbonell, Lugo
told several of the salesmen to "get on the ball or you're
going to have to go looking for another job." Carbonell
testified that Sanchez, who was present at the meeting, was
specifically named by Lugo in this connection along with
Pagan, Gregory, and Rodriguez, three of the other
salesmen in the district. Carbonell noted also that an
earlier business review of the sales force had been
conducted.
Negron's testimony in this regard was likewise corrobo-
rative. Like Sanchez, Negron placed the meeting between
Lugo and the salesmen as occurring early in July. He
testified that Lugo told the salesmen that three of them
were not too secure in their jobs and specifically named the
three individuals as being Pagan, Gregory, and Rodriguez.
According to Negron, however, Sanchez was not present at
this meeting because he was on vacation and Lugo did not
mention Sanchez' name.
As the foregoing .recitation indicates, there are certain
discrepancies in- the testimony of the three witnesses as to
the meeting in question. Lugo,. Respondent's Mayaguez
district manager, was not called as a witness, nor was the
failure to call him as a witness explained. However, based
on my appraisal of the testimony offered, I conclude and
find that the meeting in question was conducted early in
July, that Lugo did report to the salesmen that as a result
of an earlier business review by company executives of
sales performance, there was dissatisfaction with that
performance and that the jobs of some or all of the
salesmen and perhaps his own job as district manager were
in jeopardy. I am satisfied also and find that Sanchez was
present at this meeting although I fmd inadequate evidence
to posit a finding as, whether or not Lugo specifically
mentioned Sanchez' name at, this meeting.
In any event, shortly after the meeting between Lugo and
the salesmen and on or about July 12, 1974, the Mayaguez
salesmen held a meeting in Willey's Garage in Mayaguez
at which virtually all the salesmen were present, including
Sanchez, who was again called back from his vacation.'
The subject matter of the meeting was the salesmen's
concern about their job security aired earlier at the meeting
with Lugo. About a week later, on July 19, a second
meeting was held in Anasco at the home of one of the
salesmen on the same subject. Again virtually all of the
salesmen including Sanchez were in attendance. At both
these meeting efforts were made to have Sanchez act as
spokesman for the salesmen. Sanchez was reluctant to
assume this role but ultimately yielded. On the day
following the second meeting Sanchez, accompanied by
three of his fellow salesmen, Carbonell, Negron, and
Porfirio Irizarry, went to Manati to get some union
"orientation" from Porfirio Irizarry's brother who was a
union official. It is undisputed, however, that no affiliation
with any specific union was being sought or solicited either
on this occasion or at,the prior two meetings.
1 Sanchez testified that Negron called him to attend the July 12 meeting.
Negron denied transmitting this message but all testimony was uniform that
Sanchez was present.
PUERTO RICO DISTILLERS, INC.
In the meantime news of the salesmen's activities
reached management. Carbonell credibly testified that on
the night of July 16, 1974, he had occasion to meet with
Carlos Troche, Respondent's sales supervisor, at the Casa
Blanca , a restaurant in Hormigueros. Two other company
executives were also present and certain matters were
discussed. On the way home from the Casa Blanca,
Carbonell and Troche had a private conversation in the
course of which Troche informed Carbonell that he,
Troche, considered it "a shame that Mr. William Negron
and Mr. Ismael Sanchez had been involved in such a thing
like a union, being that Mr. William Negron was like a
brother to him." Troche added that if the salesmen were
ever to unionize, he would have to leave the Company.
During this same period Negron also talked to Troche.
Negron asked Troche not to identify 'Sanchez and Negron
as heading up a union movement, that Troche was
jeopardizing him, Negron, in making such statement, and
that there were no union leaders because the salesmen were
"all acting conjunctively."
About a week or 10 days later, on or about July 24, 1974,
Sanchez went to see Troche to verify reports he, Sanchez,
had received that Troche had been talking to Respondent's
San Juan office about the union movement. When Sanchez
asked Troche whether he had done so, Troche replied that
he had because that was his job.
Troche, like Lugo, was not proffered as a witness and,
similarly, no explanation was given for his failure to testify.
The testimony of Carbonell, Negron, and Sanchez as to
their conversations with Troche is credible and uncontra-
dicted and I find that Troche made the statements to which
they testified.
The matters here involved reached their denouement a
week later on July 31, 1974. At 8:30 that morning, Sanchez
testified, he was summoned by Troche into the manager's
office and was informed by Troche that he was discharged.
Troche explained that Respondent's central office in San
Juan was aware of the union movement in the Mayaguez
district, that "they were also aware of the fact that
[Sanchez] was the leader" and that "they had told [Troche]
to discharge [Sanchez]." Sanchez then walked out of the
office and announced to a number of his fellow employees
who were present there that he had been discharged
because he had been named as the leader of the union
movement .2 Sanchez' emergence from the manager's office
and the statement he made to his fellow salesmen was
confirmed by Carbonell who was among the salesmen
present at that time.
The result of Sanchez' announcement was that a work
stoppage immediately ensued among the salesmen to have
management explain why Sanchez had been discharged.
The work stoppage was very brief. However, that after-
noon Carlos Matta, Respondent's vice president in charge
of sales, came to Mayaguez from his San Juan office and
met with the Mayaguez district salesmen.
Both'Carbonell and Negron who were present testified as
to what transpired. Carbonell's memory as to the course of
the meeting was not too precise because, as he testified, he
2 About a week later Sanchez received a letter dated July 30, 1974, from
Respondent's San Juan office notifying him that his employment was
terminated "effective the 31st day of July 1974." The letter explained that
731
was quite "nervous." However, he did recall that Matta
stated that if the work stoppage had continued, all the
salesmen would have been fired "for lack of ethics." He
recalled also that, in response to a salesman's comment
that the salesmen were not interested in making unions,
Matta replied that they had a right to do so and it would
not be the first union in the Company. Carbonell repeated
that Matta had characterized the work stoppage as
constituting a lack of respect for the Company. According
to Carbonell, this discussion consumed only a short period
at the beginning of the meeting, the remainder of which
was devoted to other and unrelated matters.
Negron's recollection of the meeting with Matta was
more precise. According to Negron, the meeting opened
with an inquiry from a salesman as to why Sanchez had
been discharged. Matta answered that that was a matter
for management. Matta'also stated, Negron testified, that
if he, Matta, had been present at the work stoppage that
morning he would have taken' away all the salesmen's
books and fired all of the salesmen because of their lack of
discipline and lack of respect for the rules of the Company.
On the subject of unions Matta stated, according to
Negron, that the salesmen did not need a union though he
had no fear of them but that the best union for the men
was to do their work well. Negron denied that Matta had
mentioned the existence of other unions among Respon-
dent's employees.
The foregoing summarizes for the most part the relevant
testimony proffered by the three witnesses for the General
Counsel. Respondent presented only two witnesses. The
first was Miguel A. Rivera Roldan, Respondent's Director
of Industrial Relations, who, so far as appears, played no
role in the events here relevant. The net of his testimony
was that three different unions represented various groups
of employees of Respondent, that employees of Respon-
dent had had union representation for over 25 years, that
no meritorious unfair labor practice charges had ever been
filed against Respondent, and that there had never been
any strikes among Respondent's employees.
The sole witness offered by Respondent whose testimony
was relevant to the events here in issue was Carlos Matta,
Respondent's vice president in charge of sales. As noted,
Lugo and Troche, who likewise occupied positions in
Respondent's managerial hierarchy and were involved in
the events herein related, were not called as witnesses. A
summary of Matta's testimony follows.
Matta testified that he made the determination to
discharge Sanchez and that this determination was made
on July 9, 1975, following a business review of the sales
performance of all the salesmen. According to Matta,
Andres Lugo and Carlos Troche, Respondent's Mayaguez
district manager and sales supervisor respectively, were
among the officials present with him at the time the
business review was conducted. Matta testified that he
concluded from the business review that Sanchez' job
performance was not satisfactory and that Sanchez was the
the action was taken because after "an exhaustive evaluation of the results
of your work in the position you occupy, we have concluded that said
results do not meet the requirements of the referred to position ...."
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
only salesman in the Mayaguez district who fell in that
category.3 Matta had a two-fold explanation for the delay
in informing Sanchez who was not told of his discharge
until July 31. The two-fold explanation was that Matta
spent the week of July 9 reviewing the performance of the
salesmen in all five of Respondent's districts and, further
that Respondent "usually" effectuated discharges on the
last day of the month. In this connection Matta denied any
knowledge on his part of union activities among the
Mayaguez salesmen at the time he made the decision to
discharge Sanchez.
Matta also testified extensively as to his July 31 meeting
with the Mayaguez salesmen . According to Matta, he
received a call on that morning from Carlos Troche. Matta
testified that Troche told him the Mayaguez salesmen had
engaged in a work stoppage immediately after Sanchez'
discharge and had demanded that Troche can Respon-
dent's San Juan office to get a company official to explain
to them the reason for that discharge. Matta consulted in
San Juan with Respondent's president and left immediate-
ly for Mayaguez. When Matta reached Mayaguez at about
noon, the salesmen were already back at work. Matta
notified them that there would be a meeting at 4:30 p.m.
Upon his own arrival at the meeting, Matta found all the
salesmen present, including Sanchez, who had been
discharged that morning. Matta directed Troche to tell
Sanchez to leave but Sanchez asked to talk to Matta before
leaving . Matta acceded to the request. According to Matta,
Sanchez asked why he had been discharged and Matta
replied, "Listen,' this was a top management decision and
that's all." Matta repeated the request that Sanchez leave
so that he could conduct a sales meeting with the salesmen
and Sanchez did leave upon Matta's further urging. Matta
testified that he then told the salesmen that he had come
because of the work stoppage and the concomitant
demand for a San Juan official to give an explanation of
the discharge. Matta further testified telling the employees
that he, personally,` did not have to give any reason for the
discharge, but that it was a top management decision.
Matta explained further that in engaging in a work
stoppage, the salesmen disobeyed the Company's policy as
to working hours and further disobeyed the orders of their
superior, Mr. Troche, to return to work.
According to Matta, he also told the employees in reply
to a query that he was willing to forget what had happened
that morning but that he would not forget their violation of
the Company's policy and their disobedience of orders.
When one salesmen interjected that the salesmen were not
interested in a union Matta testified that he replied that he
was not afraid of unions, that the employees had a right to
form a union, and that such a union would not be the first
union in the Company which already had three unions.
The foregoing preliminaries took about 4 or 5 minutes
according to Matta and a regular sales meeting, lasting
about 1-1/2 hours followed.
B. Discussion and Concluding Findings
1. The discharge of Sanchez
As the foregoing recital demonstrates, Respondent and
General Counsel respectively present separate and, in
many respects, unrelated versions of the events leading to
the discharge of Sanchez.
Respondent's version was elicited from Carlos Matta, its
sales vice president and its only witness as to the events
relevant here. If Matta's testimony is credited, he alone
made the decision to discharge Sanchez ; that decision,
although executed on July 31, 1974, was made on July 9,
1974, days before any organizational activity was going on
among the salesmen in the Mayaguez district; and the
decision to discharge Sanchez was made solely on the basis
of the inadequacy of Sanchez' performance as a salesman.
On this basis, of course, there would be no basis for a
finding of unlawful discriminatory action on the part of
Respondent in discharging Sanchez.
The version of the discharge and the activities anteced-
ent thereto testified to by General Counsel's three
witnesses presents a quite different picture. Their testimony
makes it quite clear that because of reported dissatisfaction
by Respondent's top officials with sales performance, the
Mayaguez salesmen became concerned with their job
security and, beginning about the 12th or 15th of July, held
a series of meetings with a view to taking collective action
to protect their job security. Sanchez, among others,
participated frilly in these meetings and was even prevailed
upon to act as spokesman for the group. Carlos Troche,
sales supervisor for Respondent in Mayaguez, quickly
became aware of the salesmen's activities. On July 16,
1974, he complained to Carbonell, one of the salesmen,
that it was a shame that Negron and Sanchez were
"involved in such a thing like a union." At about this time
also Negron asked Troche not to jeopardize him by making
such statements; he said that there were no union leaders
and that the salesmen were "all acting conjunctively." On
or about July 24, 1974, Sanchez asked Troche whether the
latter would confirm that he was reporting to the San Juan
office about the union movement in Mayaguez and Troche
admitted that he had done so. One week later Troche
discharged Sanchez with the statement, according to
Sanchez, that Respondent's central office, in San Juan was
aware of the union movement in Mayaguez, that the
central office was aware Sanchez was the leader, and that
he, Troche, had been told to fire Sanchez. Immediately
upon leaving the discharge interview with Troche, Sanchez
reported to a number of his fellow salesmen that he had
just been discharged because he had been named as a
union leader. Carbonell testified that he along with others
heard Sanchez make this report.
The testimony of Sanchez, Carbonell, and Negron, if
credited, amply warrants a fording of unlawful discharge.
Quite plainly a problem of credibility is presented. Such
problems are usually difficult to resolve. However, the
record in the instant case, both because of what it contains
and what it does not contain, furnishes considerable aid in
that regard. Matta's testimony that he made the decision to
3 According to Matta, seven salesmen from other districts were also
selected for discharge at this time.
PUERTO RICO DISTILLERS, INC.
discharge Sanchez on July 9 was unshaken on cross-
examination and inasmuch as only representatives of
management were present at the busyness review meeting
where this decision was purportedly made, no controvert-
ing evidence was adduced. On the other hand, it is highly
significant that no corroborating evidence was adduced,
either, to confirm Matta's testimony in this regard.
According to Matta, the July 9 decision to discharge
Sanchez was made at a meeting in which, in addition to
Matta, Andres Lugo, the Mayaguez district manager,
Carlos Troche, the Mayaguez sales manager, Ramon
Sanchez, the general sales manager , and Silva, the credit
manager, were also present. The conspicuous failure of
Respondent to call any of these witnesses to corroborate
'Matta's testimony on this pivotal issue raises a serious
question as to the probative value of Matta's testimony in
this regard. And this is particularly true with respect to
Respondent's failure to call either Lugo or Troche who
were involved in other crucial and related aspects of the
events relevant here.
While perhaps not so critical, Matta's testimony is
somewhat vulnerable in other respects also. Matta's
explanation of the 22-day delay in implementing the
reported July 9 determination to discharge Sanchez was
that the week of July 9 was spent in reviewing the
performance of all salesmen in Respondent's employ and
that Respondent customarily effectuated discharges on the
last day of the month. Yet it is worthy of note that the
discharge, in fact, was consummated after Sanchez and his
fellow salesmen had engaged in organizational activities.
Troche did not take the stand to deny chat he was aware of
these organizational activities, of the participation of
Sanchez along with others in these activities, or of the fact
that. he reported these activities to the San Juan office of
Respondent where Matta had his base of operations.
Moreover, the fact that these activities were going on
among the small complement of employees comprising the
Mayaguez, district could scarcely have escaped Troche's
notice in any event.
Similarly, the asserted ground for Respondent's dissatis-
faction with Sanchez' work performance is also open to
some suspicion. Matta sought to buttress his case by
testifying that Lugo had told him as early as May 1974 that
Sanchez' work was unsatisfactory and that the only reason
Sanchez was not discharged at that time was because a
contemplated price increase necessitated the retention of
all personnel to handle the volume of sales which could be
expected before prices went up. Again, Respondent
apparently deemed it inappropriate to have Lugo testify
directly as to what he reportedly told Matta in this regard.
Moreover, it was apparent from the meeting Lugo held
with the Mayaguez salesmen early in July that Respondent
was apparently dissatisfied generally with the performance
of the Mayaguez salesmen . Whether or not Sanchez' name
was specifically mentioned in this regard, the names of at
least three other salesmen were mentioned. Yet the only
Mayaguez salesman discharged was Sanchez. Matta sought
4 General Counsel urges that an adverse inference be drawn against
Respondent because of its failure to produce the business records upon
which Matta ' claims he predicated , at least in part, his determination to
discharge Sanchez. Such an inference might in other circumstances be
warranted. However, in the course of the instant proceeding General
733
to justify this action on the ground that more was expected
of Sanchez because he had been the recipient of special
training, a fact not essentially disputed by Sanchez. On the
other hand, the record cogently suggests that Sanchez had
fulfilled his assigned sales quota during the period here
under consideration, a factor Matta endeavored to dis-
count on the ground that Sanchez should under all the
circumstances have substantially bettered his quota.4
In sum, and particularly because of Respondent's failure
to supply other presumably available testimony to corrobo-
rate critical testimony of Matta, I find considerable
question as to the probative value of the testimony of
Matta, the only witness presented by Respondent as to the
events relevant here.
By contrast, the testimony of General Counsel's witness-
es withstands scrutiny. Conceding understandable discre-
pancies in detail in the testimony given by Sanchez,
Carbonell, and Negron, several of which discrepancies
have already been noted herein, the basic pattern of their
testimony is wholly consistent. That testimony establishes
Sanchez' participation in organizational activities in the
middle of July; Respondent's knowledge of those activities
through its admitted supervisor, Carlos Troche; Troche's
ill-concealed resistance to organizational activities by the
Mayaguez salesmen and by Sanchez, among others, in
particular; Troche's reports to Respondent's San Juan
central office regarding these activities; and finally
Troche's dispositive statement to Sanchez that the latter's
discharge was at the direction of the San Juan office
because Sanchez was the leader of the union movement.
Again, Respondent's unexplained failure to produce
Troche as a witness despite his central role in these events
and despite the added circumstance that Troche had been
specifically named in the complaint lends credence to the
testimony as to Troche's actions and statements.
In sum, therefore, I do not credit Matta's testimony that
he made the decision to discharge Sanchez on July 9, that it
was made solely on the ground that Sanchez was not
performing adequately as a salesman, and that Matta had
no knowledge until July 31` of any organizational activity in
the Mayaguez district. Instead, I find and conclude, on all
the evidence of record that the real reason motivating the
discharge of Sanchez'was his participation in organization-
al activity.
Accordingly, I find and conclude, as alleged in the
complaint, that Respondent discharged Sanchez on July
31, 1974, because he joined and assisted in the formation of
a labor organization and engaged in -other concerted
activity for the purpose of collective bargaining and mutual
aid and protection. I find further, as also alleged in the
complaint that Respondent thereby violated Section
8(a)(3) and (1) of the Act.
2. Warnings and threats
The complaint alleges that Respondent independently
violated Section 8(a)(1) of the Act by interfering with the
Counsel formally requested that Respondent produce the 'records in
question. Respondent, while obviously reluctant to do so, did not refuse. At
the close of the hearing, while the question of production was still in
abeyance, General Counsel withdrew the request for production. Under
these circumstances I draw no adverse inference from the failure to produce.
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organizational rights of its employees contrary to the
guarantees of Section 7. Two instances of such interference
are alleged.
The first incident relates to a conversation on or about
July 16, already referred to herein, between Troche and
Carbonell on their way home from the Casa Blanca
restaurant in Hormigueros. As previously stated, Carbonell
testified that he and Troche had a private talk in the course
of which Troche said that if the salesmen were ever to
unionize, he, Troche, would have to leave the Company.
Troche did not testify and Carbonell's testimony is
uncontradicted and credible. General Counsel argues that
Troche's statement constitutes an "implied coercive warn-
ing or threat" in violation of Section 8(axl) in that when
employees are made aware that their supervisor faces
imminent discharge because of the union activities of the
employees he supervises, the employees can reasonably
anticipate that they too will suffer reprisals for engaging in
such activities. Respondent argues merely that this would
be an unwarranted inference from Troche's statement. I
am in accord with General Counsel's view of the matter. I
conclude and find that Respondent by the above-related
statement of Troche to Carbonell on July 16 violated
Section 8(a)(1) of the Act.
The second incident alleged in the complaint as violative
of Section 8(a)(1) relates to a statement made by Matta to
the Mayaguez salesmen at their meeting of July 31. The
allegation is that Matta warned and directed the employees
to refrain from joining and assisting in the formation of a
labor organization and threatened the employees with
discharge and other reprisals if they continued to proceed
with such formation.5 The content and tenor of Matta's
remarks at the July 31 meeting have already been narrated
and need not be recapitulated here. Nothing in the record
supports the allegation that Matta at this meeting threat-
ened reprisals against the employees for endeavoring to
form a labor organization or directed them to refrain from
doing so. Indeed, the evidence is to the contrary in that
Matta assured the employees of their right to form a union.
To be sure, Matta did fault the employees for engaging in a
work stoppage that morning and stated or implied that
they were subject to discharge for having disobeyed
company rules in this respect and for having disobeyed the
orders of a supervisor to return to work. Inasmuch as the
work stoppage was essentially a protest against the
discharge of Sanchez and a demand for an explanation of
that action, it partook of protected activity by the
employees and, technically, supported the allegation of the
complaint, as belatedly amended at the close of the
hearing. However, in total context it is not at all clear to
me that Matta's brief comments in this regard in the course
of a long meeting, couched as they were in the midst of
assurances that employees could freely engage in union
activities, were either intended as or understood to be a
threat to interfere with the statutory rights of employees.
Moreover, in view of the belated amendment to the
allegation of the complaint, it is not wholly clear that
5 At the close of the hearing General Counsel moved to amend this
allegation by adding at the end thereof the words "and/or for going on a
work stoppage over the discharge of Sanchez." The motion was granted.
6 In the event no exceptions are filed as provided in Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
Respondent had adequate opportunity to meet the issue.
Under all these circumstances I do not believe that a
finding of unfair labor practice is warranted in this regard.
v Accordingly, I dismiss this portion of the complaint, as
amended.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
National Labor Relations Act, as amended.
2. By discharging Ismael Sanchez Irizarry, Respondent
violated Section 8(a)(3) and (1) of the Act.
3. By Carlos Troche's statement to Carbonell on July
16, 1974, hereinbefore described, Respondent interfered
with the statutory rights of its employees to organize,
thereby violating Section 8(a)(1) of the Act.
4. Respondent did not violate Section 8(a)(1) of the Act
by the remarks of Matta to the Mayaguez salesmen at the
meeting of July 31, 1974.
REMEDY
Pursuant to Section 10(c) of the Act, I shall direct that
Puerto Rico Distillers, Inc., Respondent herein, cease and
desist from engaging in the unfair labor practices found
herein. Because such unfair labor practices found include
not only interference with the statutory freedom of
employees to organize but include also an unlawful and
discriminatorily-motivated discharge, I believe a broad
order enjoining unlawful interference in any other manner
with employee rights under the Act is also warranted and I
shall so direct.
By way of affirmative relief, also authorized under
Section 10(c) of the Act, Respondent will be directed to
offer full reinstatement to Ismael Sanchez Irizarry, found
herein to have been unlawfully discharged, and to make
him whole for lost earnings computed at a quarterly basis
plus interest at 6 percent a year, as prescribed in F. W.
Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962), from the
date of his wrongful termination to the date reinstatement
is offered. The customary provisions regarding recordkeep-
ing, notice posting, and reporting requirements will also be
included.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I recommend the following:
ORDER6
Respondent, Puerto Rico Distillers, Inc., Mayaguez,
Puerto Rico, its officers , agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discouraging organizational or other concerted
activity for the purpose of collective bargaining and mutual
aid and protection among its employees by discharging or
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.
PUERTO RICO DISTILLERS, INC. 735
otherwise discriminating against any of its employees in
regard to hire or tenure of employment or any term or
condition of employment.
(b) Warning its employees that organizational activities
will subject them or their supervisors to discharge.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to
organize and bargain collectively as guaranteed in Section
7 of the National Labor Relations Act, as amended, or to
refrain from such activities.
2. Take the following, affirmative action to effectuate
the policies of the National Labor Relations Act, as
amended:
(a) Offer to Ismael Sanchez Irizarry immediate reinstate-
ment to his former job or, if such job no longer exists, to a
substantially equivalent job, without prejudice to his
seniority or other rights and privileges, and make Manuel
Sanchez Irizarry whole for lost earnings in'the manner set
forth in the portion of this Decision entitled "Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
T 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 readmg "Posted by
Order of the National Labor Relations Board " shall read "Posted Pursuant
personnel records and reports, and all records necessary to
compute the amount of lost earnings due under the terms
of this recommended Order.
(c) Post in both English and Spanish copies or transla-
tions of the attached notice marked "Appendix" 7 at its
principal plant in Arecibo, Puerto Rico, and at its several
district offices in Puerto Rico. Copies of the notice, on
forms provided by the Regional Director for Region 24,
after being duly signed by an authorized representative of
Respondent, shall be posted by Respondent immediately
upon receipt thereof and be maintained for 60 consecutive
days thereafter in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable care shall be taken by Respondent to insure
that the notices are not altered, defaced, or covered by any
other material.
(d) Notify the said Regional Director, in writing, within
20 days from the date of this Order, what steps Respondent
has taken to comply herewith.
IT is ALSO ORDERED that the complaint in this proceeding
be dismissed insofar as it alleges unfair labor practices not
found herein.
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."