R.J. Reynolds Tobacco Co.

National Labor Relations Board - Board Decisions

Feb 7, 1979

240 N.L.R.B. 620 (N.L.R.B. 1979)

620 DECISIONS OF NATIONAL L.ABOR RELATIONS BOARD
R. J. Reynolds Tobacco Co. and Union General )e
Trabajadores A/A International Boilermakers,
AFL-CIO. Case 24 CA-3873
Februar) 7. 1979
DECISION AN[) ORDER
BY MEMBI.RS PENII.I.O. Mt RPIY. AN) TR ISl) \I t
On November 1, 1978, Administrative Law Judge
Robert C. Batson issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and Respondent
filed a brief in response to the General Counsel's ex-
ceptions.
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 briefs
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, R. J. Reynolds Tobacco
Co., Yabucoa, Puerto Rico, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the said recommended Order.
DECISION
STATEMENT OF THE CASE
ROBERT C. BATSON. Administrative Law Judge: This pro-
ceeding under the National Labor Relations Act, as
amended, 29 U.S.C. § 151, e seq. (herein the Act) was
heard before me on December 12 and 13, 1977,1 At Hato
Rey, Puerto Rico, based upon a complaint. with notice of
hearing, issued by the Acting Regional Director for Region
24 (Hato Rey, Puerto Rico) on October 14. growing out of
a charge filed on August 5 by Union General de Trabaja-
dores A/A International Boilermakers. AFL-CIO. herein
the Union, alleging that R. J. Reynolds Tobacco Co..
herein the Respondent, had violated Section 8(a)( 1) and (3)
of the Act.
The principal issues presented are whether Respondent.
in violation of Section 8(a)( ) of the Act, created the im-
All mnonths and dates hereaflter are 1977 unIlcs othcr t,,c iidicalld
240 NLRB No. 89
pression of surveillance of its employees' union activities:
directed its employees to refrain from engaging in union
activities: threatened its employees with reprisals for en-
gaging in union activities; threatened its employees that
the plant would close if the Union were selected as their
collective-bargaining representative: and coercively inter-
rogated its employees concerning their union activities and
the union activities of other employees: and, in violation of
Section 8(a)(3), discharged, and thereafter failed and re-
fused to reinstate its employee, Juan A. Santiago.
All issues were fully litigated at the hearing; all parties
participated throughout by counsel and were afforded full
opportunity to examine and cross-examine witnesses, to
present evidence and arguments, and to file post-hearing
briefs. Briefs were filed by counsel for the General Counsel
and the Respondent.
Upon the entire record, including consideration of
briefs, and my observations of the testimonial demeanor of
the witnesses testifying under oath, and upon substantial
reliable evidence. I make the following:
FiNDINg(S OF FACT
I THE B SINESS OF RESPONDEN I
Respondent, R. J. Reynolds Tobacco Co.. is, and has
been at all times material herein, a Delaware corporation
with an office and place of business located at Yabucoa,
Puerto Rico. where it is engaged in the manufacture, sale,
and distribution of cigarettes. During the 12 months imme-
diately preceding the issuance of the complaint, which is a
representative period, Respondent in the course and con-
duct of its business purchased and caused to be delivered
to its plant materials and supplies valued in excess of
$50,000, from points located directly outside the Common-
wealth of Puerto Rico. The complaint alleges, Respondent
admits, and I find, that at all times material herein, Re-
spondent is, and has been, an employer engaged in com-
merce within the meaning of Section 2(2), (6). and (7) of
the Act.
II HtHE LABOR ORGANIZATION INVOI.VED
The complaint alleges, Respondent admits, and I find,
that at all times material herein Union General de Trabaja-
dores A/A International Boilermakers, AFL CIO, is, and
has been, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III LI.EED NFAIR I.ABOR PRA( II(ES
A. Background
As noted above, Respondent is engaged in the manufac-
ture and sale of cigarettes at its Yabucoa. Puerto Rico,
plant, and at times relevant herein employed approximate-
ly' 300 employees. All the unfair labor practices alleged
here occurred on the second shift, on which about 112 em-
ployees work.
It appears that on at least two occasions prior to 1977,
attempts were made to organize Respondent's employees.
R. J. REYNOLDS TOBACCO CO. 621
The record does not reveal if the Union involved in the
previous attempts at organization is the same as here. The
union activities giving rise to the charge herein commenced
in February as a result of discussions among some employ-
ees concerning the need for a collective-bargaining repre-
sentative. As a result of this activity. on March 3, the
Union sent a letter to Respondent demanding recognition
and claiming to have authorization cards signed by a ma-
jority of the employees. The letter also named 10 employ-
ees constituting an organizing committee. On the same
date the Union filed a petition for certification which re-
sulted in an election conducted under the supervision of
the Board's Regional Office on May 12. The Union lost the
election. The record reveals that objections to the election
were filed and subsequently withdrawn.
B. The 8(a)(1) Allegations
Respondent's alleged interference, restraint, and coer-
cion of its employees in the exercise of their Section 7
rights occurred during April and the first week of Ma.
The testimony upon which these allegations are based was
given by employee Oscar Matos Ruiz and the alleged dis-
criminatee, Juan A. Santiago. Matos testified in a straight-
forward and convincing manner and was not cross-exam-
ined on his testimony relating to statements made to him
by Assistant Plant Manager Jose Javier Abaunza. I credit
Matos.2 On the other hand, Santiago's testimony was clear-
ly influenced by his personal interest in the outcome of this
case with respect to his discharge. However, his testimony
relating to certain statements made to him prior to the elec-
tion by Abaunza and Aponte had a ring of truth. So did his
testimony relating to his union activities. The same cannot
be said for his testimony concerning critical elements of
events leading up to his discharge. Accordingly, based
upon his demeanor, the record as a whole, and the consid-
eration given to his personal interest in the outcome, with
due regard for the logic of probability, I credit some, but
not all, of Santiago's testimony. Edwards Transportation
Co., 187 NLRB 3 (1970); see also ULniversal Camera Corp..
179 F.2d 749 (2d Cir. 1950).
About a month before the Board-conducted election.
Assistant Plant Manager Abaunza came to Matos' table in
the plant cafeteria and asked him who had signed union
cards for him. Matos inquired as to why Abaunza wanted
the information and Abaunza replied. "[F]or nothing."
Matos told him that it was personal and he could not give
him the information.3
A few days later Abaunza came to Matos' work station
and told Matos that he had a list of 25 or more people who
were "hot" and that he was going to fire them. Under the
circumstances here, including the union campaign and Ma-
tos' advocacy of the Union, I conclude Matos was warrant-
ed to infer that "hot" referred to union adherents.
As heretofore noted, I credit Matos' testimony over the
2Abaunrza' denial of the specific statements attributed to h h l-,.
AiaS uncon ln clng.
Although `l.ri tei t r ified that erplosees t r;lnk i, \qucl al .l Pcdi, I U11
(rug were present ;It this trne. the! Cere nll .llIed to leIf\ 1 reirdic this,
ma;ller.
unconvincing denials of Abaunza. Accordingly, I find and
conclude that Abaunza coercively interrogated Matos by
inquiring as to who had signed union cards for him, cre-
ated the impression that employees' activities were under
surveillance by telling Matos that he had a list of 25 union
adherents, as understood by Matos. and threatened that
such employees would be discharged, all in violation of
Section 8(a)( I ) of the Act.
Near the end of April Abaunza approached Juan Santi-
ago at Santiago's machine and was greeted by Santiago
with . . .this year the Union may win." According to San-
tiago. Abaunza replied:
And he told me that he did not see the reason why
I would be striving for this union since this was a
union of Socialists and Communists who liked to burn
and destroy enterprises, and that I could see that Mr.
Johnny Eliza and Mr. Julio Cuadaro had been the
persons who had burnt down the papers of the De-
partment of Work in Yabucoa.
One of them because unemployment payments had
been denied to him, and Johnny Eliza because he had
been fired by the Department of Labor. And that this
would be prejudicial to me because I had been a can-
didate for assemblyman for the NPP during the previ-
ous elections.
A word of explanation concerning the above-credited
quote is in order. Both Johnny Eliza and Julio Cuadaro are
representatives or officers of the Union. The NPP is the
New Progressive Party in Puerto Rico, which advocates
statehood for Puerto Rico. Santiago had been a candidate
for assemblyman on the NPP ticket in the elections of
1976.
The General Counsel contends that by the above com-
ment Respondent, by Abaunza, in violation of Section
8(a)( ) of the Act, created the impression of surveillance of
its employees' union activities, coercively directed its em-
ployees to refrain from any union activity, and threatened
its employees with reprisals for supporting the Union. I do
not agree. Whether the statement made by Abaunza con-
cerning the conduct of Eliza and Cuadaro is true was not
litigated. In my opinion Abaunza's comments to Santiago
were protected by Section 8(c) of the Act, and do not ex-
ceed permissible bounds of antiunion emplover expres-
sion. 4 Under the circumstances here, the only admonition
of possible reprisals for having engaged in union activities
expressed by Abaunza related not to reprisals affecting
Santiago's employment. but to the possible effect of such
association on his political ambition. I find and conclude
that Respondent did not violate the Act in any manner by
the conduct of Abaunza set forth above.
Santiago further testified that near the end of April or
the first week in May Abaunza came to him while he was
working at his machine and told that he knew of a compa-
ny in Guayama that had closed down and left when a
union came in, and that it later came back producing the
same product. According to Santiago. Abaunza continued
by telling him that this company could do the same thing.
Santiago told Abaunza that such message had been written
1iSt /, , 2. 7 N RB i 177'. 1785 1 177 [/,Ln. ( rp. 'I)
\I R It " I ('7I ' .,li ,C,.CII il e I ClCIIrl
R .J .R E Y N O L D S T O B A C C O C O . 6 1~~~~~~1
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the bathroom walls.5 As heretofore noted, Santiago's
testimony concerning the statements made to him by
Abaunza was convincing, and Abaunza's denials thereof
were not convincing. Notwithstanding the fact that I do
not credit Santiago in all respects, I am persuaded that
Abaunza threatened Santiago that Respondent could close
down and leave if the Union were selected by the employ-
ees. Accordingly, I find and conclude that Abaunza's state-
ment to Santiago concerning Respondent's closing its plant
violated Section 8(a)( I) of the Act.
Finally, it is alleged that Respondent, by Lino Aponte
Ortiz, about the first week of May "warned and directed an
employee to refrain from ". . . union activities" and "im-
pliedly threatened an employee with reprisals" because of
his union support. Apparently, the testimony intended to
support this allegation was elicited from Santiago and is
accurately, except as noted, paraphrased by the General
Counsel in his brief as follows:
On or about the end of April, production superinten-
dent Lino Aponte Ortiz . . . told Santiago that "some-
thing big is going to happen after this election is over."
[W]hen Santiago asked Aponte what was going to
happen Aponte did not answer. On yet another occa-
sion, on or about the last week in April, Santiago ob-
served that Aponte was standing nearby an area where
he Santiago, apoke [sic. spoke] to two other employees
about the Union. [The record does not establish that
Aponte was aware of what Santiago was talking with
the employees about.] After standing there for 3 or 4
minutes, Aponte approached Santiago and tld him in
a "brusk voice" Isic], to get back to his machine and
return to work.
In his brief the General Counsel does not address a pre-
cise contention with respect to the violation to be found by
the above-quoted credited conduct of Aponte. While
Aponte's comment, "something big is going to happen
when this election is over," is susceptible of an interpreta-
tion as either a threat of reprisals or a promise of benefits,
it is equally susceptible of an innocuous interpretation. I
am also unable to find that Aponte's telling Santiago to
return to his work station, under the circumstances here,
had any tendency to interfere with, restrain, or coerce San-
tiago in his union activities. Accordingly, I find and con-
clude that Aponte's conduct set forth above does not vio-
late Section 8(a)(1) of the Act.
C. The Discharge of Juan 4. Santiago
As heretofore indicated, from February to May 12, some
of Respondent's employees were actively organizing for
and supporting the Union in its bid to become their collec-
tive-bargaining representative. As in two previous cam-
paigns, Juan A. Santiago actively supported the Union by
signing a union authorization card, getting other employees
to sign such cards, and distributing union literature at the
plant gate during shift changes. It should be noted that
It appears t hat there ere cornim Ilr s uritcll t 11 the ihl ll I) . II x,.iI
conveNing Ihe saime mrncsslgc there w;ls no c dcnce aIs I o ull i. repoill
sihle for such wrings.
Santiago was not the only employee so involved. Appar-
ently the handbilling of the plant occurred after the filing
of the petition for certification on March 3. On that date
the Union also sent a letter to the Respondent wherein it
asserted that it represented a majority of the employees
and demanded recognition. The letter also named 10 em-
ployees who comprised the organizing committee.
Santiago's name was not among them. According to Santi-
ago and Matos, Santiago's name was withheld from the list
because he was already known to be a union supporter and
also to permit other names to be submitted to demonstrate
to the employer a broader base of support for the Union.
Santiago's name was included on a list of employee union
supporters sent to Respondent about May 9.
The counsel for the General Counsel contends that it
was because of Santiago's strong advocacy of the Union
that Respondent discharged him on July 14, and not, as
Respondent contends, for theft of cigarettes in violation of
its company rule no. 6.6 Counsel for the General Counsel
agreed that Respondent's rule 6 was in existence and that
it was uniformly enforced.
Juan A. Santiago was employed by Respondent from
March 1971 to July 14, 1977, at which time he was dis-
charged, according to Respondent. for the unauthorized
taking of cigarettes. During the summer of 1977, Santiago
worked on the second shift and operated a packaging ma-
chine which packaged and sealed the "half packs" of ciga-
rettes.7 Lino Aponte Ortiz, superintendent of the night
shift, was Santiago's immediate supervisor. According to
Victor Medina, Respondent's personnel manager, in De-
cember 1976, some of Respondent's salesmen reported that
some of their customers in the area were maintaining high
inventories of cigarettes of the brand produced by Respon-
dent at its Yabucoa plant and that those customers were
not buying weekly as they had in the past. Suspecting that
the abundant supply of cigarettes in the area might be the
result of theft by some of its employees, in January, Medi-
na admonished his supervisors to be on the alert for possi-
ble theft by employees. In March, the plant engineer dis-
covered three boxes of cigarettes, each box containing 60
cartons, hidden in a "poly tub" located near a truck which
had been assigned to take garbage to the dump. As a result
of this discovery, the supervisors were again requested to
be more alert to the possibility of theft; it was suggested
that they might obtain the assistance of some of their em-
ployees to discover those responsible for the thefts.
Medina testified that the union activity, presumably the
filing of the petition for certification, prompted Respon-
dent to hold in abeyance the plan to utilize employees to
report thefts. for fear that such activity might provoke a
charge that Respondent was engaging in surveillance of the
union activities. After the election, about June 20, Respon-
dent brought two people into the plant specifically to at-
tempt to determine the persons responsible for the thefts.
Only the president of the company, the general manager,
and Medina were aware of the undercover personnel. Med-
ina indicated this step was necessary because of the possi-
Rile I pioid.lc II1 perillinCi pLlrt: l king cikL Creticexl ( OhaICCO llthout
pecfic pCll11,t1i1 'h;l e1l tall Ulilni;Ir dich;argC ."
"*Ilf p.,ke" ir p;:itck.l co Tlllltnil 1l 0 cigareltte aI (Ipp.l..ed t, 20
C:i -,,iii, i ll i tle k[i P[ICl 'C
R. J. REYNOLDS OBACCO CO. 623
bilitv that supervisors personnel might also be involved inthe thefts. Reports were made to the general manager. No
disciplinary action was ever taken as a direct result of re-ports by the undercover personnel, according to Medina.
because supervisors were able to obtain sufficient evidence
without utilizing those reports. While not entirel clear, itappears from Medina's testimony that two or three em-
ployees were discharged during this period for theft and six
or eight were asked to. and did. resign.
While the foregoing is not particularly relevant to
Santiago's discharge. it provides a background against
which Respondent's conduct can be measured.
The Respondent had reason to suspect Santiago of theft
of cigarettes since February. when his fellow employee. Pe-tra uz Morales Ortiz. informed Night Shift Supervisor
Aponte that she had seen Santiago put small boxes of ciga-
rettes in his socks, under his belt. and in his pants pocket.
Aponte told Morales that he would try to obtain evidence
or catch Santiago with the cigarettes, because he did not
want to get her involved and possibly accused of liing.
Morales, who worked as an inspector on the machine
adjacent to the one operated by Santiago. testified in aconvincing and credible manner, and I credit her testi-
mony. Morales observed Santiago placing the half packs ofcigarettes inside his clothing for the first time in Januar.
According to Morales. during the ensuing months she ob-
served this many times. twice per shift: at about 7:15
p.m.--just before breaktime and again just before the endof the shift.' Employees were permitted to leave the plant
and go to the parking lot during their break time As noted
above. in February she reported Santiago's conduct to
Aponte.'
In June. after the Board-conducted election. apparently
in response to Medina's suggestion that the superisors uti-lize emploees to aid in detecting employees taking ciga-
rettes. Aponte requested Morales to cooperate with him in
catching Santiago stealing cigarettes. Morales agreed to co-operate with Aponte and they agreed that if she saw Santi-
ago with unauthorized cigarettes)" she would signal
Aponte b placing her hand on the middle of three boxeslocated near her machine. Morales testified that a few days
( O d irccl CX1.1 a l ll '1 I " II t \1, ,il ll. it ' M o la lc, cxlllfi d II.,1 h s' nSarStlan i kto A C l garttltt, onlJk
.
IV.l' I JAC Ie o C l r ¢.ldfln of Jl"It' cIlll [cth
e, ,llden\,,)x c ltx ~ ll. IIlt tl Hll sl~ . 1,g [ h il l .1 rJlt, x li . hlH x I x llf[nlin\ Icak i hc \hii .Ii .1 c tIat l \l icc Vlit / It-c lhIt ,pp t.r> Ihal fr .( lic n . Siils nai o' aIIno d tairiC 11 iii llr, crc
Ihenl eck, frl tnd, ind cidonrr if ctcr pok c to cani ,t .h lrc IIi J C tii. llii IICIlI.apparcn tlr trnIC hiL t l l I 1CI 1or,l, l ink S1 nin .InIn ,id .1 1t ll flli. lij CIIIoct
to I, ohe ffice nd .nln td .Itn I 'f " ik , 1u 411 " f eItill"'r i u 1.tl hScr
niorli e Ir n rin r eporliini i " tS o i Iduo i po't jrr n ipr, Intcuc tc' Jiia rInt al or l ncl ed inIull i. I l i p rtiuadcd Ihii tt.li ntc ipotcd ,, ile
I t lllpin i. mtd, tl ptntutr cd t, t.ie idl [tl i>c..l i n t" it'\1 tl ii r nh l
mhilic it work Such nmrc tkcrr i i '"lo-tc .llarcilct hcf,,iC ilic, ncIci
pin kagzcd
Ihe ufricli for Ih (;tcncilJ (Initnc! r t i d I II .nI. .gI i
I ChtllI
mllllt'"x ;li Bl h t ltf i r tlhl at r Ic ,cit '0 rcrn, k, lh ]ni i ortl nu H tli t,ihpp d t I i lnaiclt, if i l J nitl,l Al nil . c lplcd In dcIIiI, *[ICnn thlnt
or Iit par k.rtic tf Cot etIrc l itc I 1 ii I tlt 1 ilc 1i hil, l l . ii pcrxul
t ha t Salnitiacn did xar m omkt .iJ thi l l i ri it . ,[ l S Ale Ii tl t p n.l kx . I
ciLarcItIC, mulid fit lInd thilte .c. k h, I [ii e c bi t 1 p.rit n .lt ll; i cn/X lil d
as Mora/t,- te·tiflwd
later at about 7:15 p.m.. just before breaktime. she saw
Santiago place 8 or 10 half packs of cigarettes inside his
socks and she signaled Aponte.i
According to Aponte. when he observed Morales' signal.
he had Santiago relieved from his machine and took him to
the office. En route. Aponte was stopped by another em-plosee and Santiago went into the restroom. A moment
later Aponte followed Santiago into the restroom and sawSanrtiago emerge from the "last stall." Not to arouse
Santiago's suspicion. Aponte looked in each unoccupied
stall and, in the last one. from which Santiago had
emerged. he found two half packs of cigarettes in the trash
can. Aponte left them there. When Aponte came out of the
restroom. Santiago was not in sight. but a moment later he
approached Aponte from the direction of the locker area.
Aponte. deciding Santiago had gotten rid of any cigarettes
he had on him, took him on to the office and discussed his
production.
Santiago's version of this event is that Aponte walked
behind him en route to the office; that he stopped to washhis hands and Aponte stood right behind him; that he went
into the last booth in the restroom and Aponte stood at thedoor: and that upon his leaving the booth. Aponte immedi-
atel) went into the same booth, emerged. and took him to
the office and discussed his production. Santiago told
Aponte that no one had ever been taken to the office at
that hour (breaktime) to discuss "these matters" (produc-
tion). Santiago's comment to Aponte concerning calling
him to the office during break to discuss production cir-
cumstantiall corroborates Aponte that he talked with San-
tiago at that time because he had reason to believe that
Santiago had unauthorized cigarettes on him.
According to Morales, when Santiago returned from theoffice he stated in a loud voice. "[T]hey almost caught me.
one has to e more careful because the , are watching." Afew da- s later Aponie asked Morales to continue to coop-
erate with him in trying to catch Santiago.
Morales testified that near the end of the shift on JuNk
14. she observed Santiago placing half packs of cigarettes
in his socks, under his belt, and in his pockets. Aponte was
not in sight. Morales went to the office of the plant nurse.
Maria zpiranza Medina. and asked her if she knew where
Aponte was. Medina told Morales that Aponte was up-stairs in his office. Morales asked Medina to go to the
office and tell Aponte that Santiago had some cigarettes.
Medina conveyed Morales' message to Aponte.
Upon receiving Morales' message. Aponte looked
through the window facing the plant and saw Santiago
near the timeclock. He immediately went to Santiago and
instructed him to go to the office. According to Aponte. he
followed Santiago up the stairs to the office and, in so
doing. observed bulges in Santiago's socks and what ap-
peared to be a package of cigarettes in his shirt pocket. In
the office Aponte told Santiago that he knew that he hadunauthorized cigarettes on him and asked him to turn them
over. Santiago produced a package from his shirt pocket.
Aponte asked for the others and Santiago took another
from his trouser pocket. Upon being pressed to turn over
the others, Santiago admitted that he had others but stated
that he would not turn them over because he felt Aponte
would be unfair to him. lie told Aponte that others were
R .~ ~ ~ ~ ~ ~ J . R Y O D O A C O
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
taking more than he.l2 Santiago refused to name other em-
ployees who were taking cigarettes. Aponte then told Santi-
ago he could resign or he discharged. Santiago refused to
resign and Aponte instructed him to come back to the
plant at 9 a.m. the following day. About 10 a.m. on July 15.
Santiago arrived at the plant and Aponte again gave him
an opportunity to resign. Santiago proclaimed his inno-
cence and said Aponte would have to prove in court that
Santiago took cigarettes.
Analysis and Conclusion
The counsel for the General Counsel contends, in sub-
stance, that Respondent fabricated the evidence and
charges of theft against Santiago and utilized them as a
pretext to discharge him because of his strong support for
the Union. The Board has long held that theft by an em-
ployee provides the employer a legitimate reason to dis-
charge. However, the finding that Respondent had a legiti-
mate reason to discharge is not necessarily dispositive of
the issue of discrimination, where it is shown that "a dis-
criminatory motive was a factor in the employer's deci-
sion." Where good cause exists the burden rests, as it must.
upon the General Counsel to discover not simply some
evidence of improper motive, but to establish an "affirma-
tive and persuasive reason why the employer rejected the
good cause and chose a bad one." Firestone Tire & Rubber
Compani v. N.L.R.B., 539 F.2d 1335 (4th Cir. 1976).
Santiago was employed by Respondent for over 6 years
and, insofar as the record before me reveals, was a satisfac-
tory employee. Respondent had known of Santiago's sup-
port for the Union during two previous union campaigns
and was aware of his activities in the 1977 campaign. Also,
Respondent had been informed that Santiago was taking
unauthorized cigarettes as early as February, but it took no
action until July, well after the election and the withdrawal
of the objections thereto. While it may be argued that Re-
spondent's delaying action or disciplinary measures against
an employee who has been reported stealing cigarettes mil-
itates against a finding that the conduct engaged in was so
egregious as to warrant discharge 6 months later, I am per-
suaded that the delay was occasioned by an overabun-
dance of caution on the part of Respondent because of the
union activities. Personnel Manager Medina indicated that
a common wealth tax of 41 cents per package (full pack)
and 20-1/2 cents per half pack tax is levied on all cigarettes
leaving the warehouse, and strict measures are necessary to
insure that all cigarettes getting to the market place have
the tax paid on them. While this justification for the rule
regarding discipline for thefts was unnecessary. it did dem-
onstrate that there was more involved than the mere theft
of a few packages of cigarettes. In that regard, it should be
noted that counsel for the General Counsel does not take
12 A.cordlLng I, SanllgIO. upont .lrrlI i 11 i he,, ,oftc. lie 1 . 1[,l dcchlltcdi
to be .ealted a; Apotle rcquc..Icd pon hbil l a'.ked ia wccond riic. hie t
down Aponlte Iold huim. "[(;ili e tihc d cicr. rcttcs oul ale 1in ll ol 1111
pocket." Santiaeo told Aponte he did no have to shr,. hil IIsI pockelo
Upon Apontc'\ repeaied i i ecstcm . Santiago produced Iis ,.ir kC,\ Iiuii
sOl t .hanL ge froItl hi pocke ts. but Ilo tIg.illrcttle Apollt tht l hitcd i\n,,
packages of cigarette, frot hlilld n objhlcl oll hIt desk aillld d S t..,no.
"llhis is forbidden .ithin the plant
issue with the existence or uniform enforcement of the rule.
In my view, had Respondent been looking for a pretext
to terminate Santiago for his union activities, it could have
found one before his discharge on July 14. Thus, it could
have discharged Santiago in January, prior to any current
union activity, when Morales first reported Santiago's tak-
ing cigarettes. At that time, Respondent knew of Santiago's
support for the Union in two previous campaigns. Second-
v., it could have discharged him in June, relying upon Mo-
rales' second report of Santiago's taking cigarettes, not
withstanding the fact that Aponte was unable to catch San-
tiago with the cigarettes on him. Moreover. had Respon-
dent's motive been to discourage union membership and
activities, discharging Santiago prior to the election would
have been much more effective.
As to the General Counsel's contention that the charge
of theft was fabricated, it appears that, by the same ratio-
nale. had Respondent been inclined to fabricate such
charge as a pretext to discharge Santiago for his union ac-
tivity, it would have done so before the election.
Accordingly, I conclude that the General Counsel has
not shown that the termination of Santiago's employment
was violative of Section 8(a)(3) and (I) of the Act.
CoNt .l SIONS of LAW
I. Jurisdiction is properly asserted in this proceeding.
2. By coercively interrogating its employees concerning
their union membership, activities, and desires and the
union membership, activities and desires of other employ-
ees; creating the impression that it was watching its em-
ployees' union activities; threatening to its employees that
it would discharge those employees who supported the
Union: and threatening to its employees that it would close
the plant if they selected the Union as their collective-bar-
gaining representative, Respondent has engaged in unfair
labor practices affecting commerce within the meaning of
Section 8(a( ) and Section 2(6) and (7) of the Act.
3. Respondent did not violate Section 8(a)(3) and (I) of
the Act by discharging Juan A. Santiago.
4. Respondent did not engage in any other conduct vio-
lative of Section 8(a)( I ) of the Act as alleged in the com-
plaint.
TinEt REMtDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order the Re-
spondent to cease and desist from those or any like or
related acts and to take certain affirmative action designed
to effectuate the purposes of the Act. Such affirmative ac-
tion of Respondent shall be to post at its place of business,
as hereinafter set forth. the usual information, Notice to
Employees, attached hereto as an Appendix. Such notice
shall be printed in both the English and the Spanish lan-
guage.
Upon the entire record, and pursuant to Section 10(c) of
the Act. I hereby issue the following:
R. J. REYNOLDS TOBACC(O CO. 625
ORDER
The Respondent. R. J. Reynolds Tobacco Co.. Yabu-
coa, Puerto Rico, its officers, agents. successors, and as-
signs, shall:
1. Cease and desist from:
(a) Coercively interrogating its employees concerning
their Union membership, activities, and desires and the
union membership, activities, and desires of other employ-
ees.
(b) Creating the impression that it is watching its em-
ployees' union activities.
(c) Threatening its employees that it will discharge all
those employees who support the Union.
(d) Threatening its employees that it will close its plant
if they select the Union to represent them.
(e) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of their
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the purposes of the Act:
(a) Post at its Yabucoa. Puerto Rico, plant copies of the
attached notice marked "Appendix".' 4 Copies of said no-
tice, on forms provided by the Regional Director for Re-
gion 24, printed in both the English and the Spanish lan-
guage, after being duly signed by Respondent's
representative, shall be posted by Respondent immediately
upon receipt thereof, and maintained for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken to insure that said notices are
not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 24. in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it
herebN is. dismissed insofar as it alleges unfair labor prac-
tices not found herein.
I tihe cent no e\ception,T are filed as pro.ided h Sec 1fi246 of he
KRule .1nd RIL.lilor o[ ICl Natill.ll la hor Rla.lonlls Board. he findilng.
-iluiil-l>jln .li1 r¢clAlllr endld O(der herein Th.ll. is prsiided in Soe
Ii2' 4 f the Rilc, lld ReCAliton,. he adpied h\ he o rd r d hecorne
,Ii 1 l x 1d illllst llloI .'A la ()rder. and all hlections thereto 1ha.ll h
declltd .aixcd fr .all purpoews
I' h the event that this Order is enforced by a Judgment f .a I niled
51sc ( -iiil of ppe.al. the iord, in he nlotice reading '"tioied h Order
f e \.ilio.lil I hor R/.lllal, Boalrd" hall read 'Poslcd Ptiruanl tI d
.Ildeiiicnit f he I nled Slares (Court f ppeals Irlnforlng aln Ordetl f the
Ndll. ildl I lhir Relalron, o,.Ard
APPENDIX
NOTIC'i To EMPIOYit -s
POSIED BY ORDER OF Jilt
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Wi WILL. NOT coercively interrogate our employees
about their union membership, activities, or desires, or
about the union membership, activities. or desires of
other employees.
WE Wt.LL NOT create the impression that we are
watching our employees' union activities.
WE 'IL.L NOT threaten to discharge employees who
support Union General De Trabajadores A/A Inter-
national Boilermakers AFL-CIO. or threaten to close
our plant if our employees select the Union to repre-
sent them.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their rights guaranteed under Section 7 of the Na-
tional Labor Relations Act, as amended.
R J REYNOLDS TOBACCO Co
R. J. REYNOLDS TOBACO . 25