Universidad Interamericana

National Labor Relations Board - Board Decisions

Feb 27, 1984

268 N.L.R.B. 1171 (N.L.R.B. 1984)

UNIVERSIDAD INTERAMERICANA
Universidad Interamericana de Puerto Rico, Inc.
and Congreso de Uniones Industriales de Puerto
Rico. Case 24-CA-4706
27 February 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 30 June 1983 Administrative Law Judge Joel
A. Harmatz issued the attached decision. The Re-
spondent filed exceptions and a supporting brief,
and counsel for the General Counsel filed a brief in
support of the judge's decision.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended
Order. 1
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Universidad
Interamericana de Puerto Rico, Inc., Rio Piedras
and Bayamon, Puerto Rico, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
in the Order, except the attached notice is substi-
tuted for that of the administrative law judge's.
t We agree with the judge that the Respondent violated Sec. 8(aX3)
and (1) by discharging its janitorial employees and subcontracting their
work. Unlike the judge, however, we do not find that the Respondent's
failure to solicit competitive bids in September 1982 constitutes evidence
of an unlawful motive. We note that the Respondent had solicited com-
petitive bids in 1981 when it first considered the possibility of subcon-
tracting. The information obtained from those bids was still at the Re-
spondent's disposal in September 1982, and consequently we are not of
the view that the Respondent's failure to conduct the bidding a second
time is indicative of an unlawful motive. We find that the other factors
relied on by the judge provide ample support for the inference that the
Respondent's conduct was motivated by the union activities of its em-
ployees.
We have modified the judge's notice to conform with his recommend-
ed Order.
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these
rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT question our employees concern-
ing their union activity.
WE WILL NOT create the impression that we are
spying on union activity conducted by our employ-
ees.
WE WILL NOT threaten employees with dis-
charge or any other reprisal because they seek to
engage in activities on behalf of a union.
WE WILL NOT discourage membership in Con-
greso de Uniones Industriales de Puerto Rico, or
any other labor organization, by discharging or
otherwise discriminating against employees because
they have elected to join, form, or assist a union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Tomas Diaz Cordero, Olga Ro-
driguez, Juan Martinez, Antonio Santiago Ramos,
Luis Pinerio, Manuel Colon Vazquez, Alfonso Me-
lendez, Emilio Colon, Julio Alicea, Diego Rivera,
Carmelo Colon, Moises Oyola, Rene Oyola,
Eduardo Natal, Pedro Vazquez, Angel Martinez,
Rafael Torres, Victoriano Gonzalez, Jose Gotay,
Angel Gonzales, Santa Perez, Salvador Acevedo,
Juan de al Cruz, Escolastica Rodriguez, Efrain
Cedeno, Felix Pagan, Jose Flores Serrano, Jose
Hernandez, Lydia Colon Canales, Candido Cosme,
Jose A. Diaz, Francisco Oquendo, Aurea Rivera
Vargas, Israel Rodriguez, Martin Sierra, Lina
Sierra, Miguel Angel Arroyo, and Saturnino Cal-
deron immediate and full reinstatement to their
former positions, without loss of their seniority or
any other rights, benefits, or privileges previously
enjoyed, and WE WILL make them whole, with in-
terest, for all loss of earnings they sustained by
virtue of our discrimination against them.
UNIVERSIDAD INTERAMERICANA DE
PUERTO RICO, INC.
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge: This
matter was heard by me in Hato Rey, Puerto Rico, on
February 22 and 23 and March 7, 1983, on an original
268 NLRB No. 177
1171
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unfair labor practice charge filed on September 21, 1982,
and a complaint which issued on November 5, 1982, al-
leging that the Respondent independently violated Sec-
tion 8(a)(1) by coercively interrogating employees, creat-
ing the impression of surveillance, and threatening em-
ployees with discharge and other unspecified reprisals
because of their union activities. The complaint further
alleges that the Respondent violated Section 8(a)(3) and
(1) of the Act by on September 20, 1982, subcontracting
its cleaning and maintenance work and discharging its
employees so engaged in reprisal for union activity. In its
duly filed answer, the Respondent denies that any unfair
labor practices were committed. Following close of the
hearing briefs were filed on behalf of the Respondent
and the General Counsel.
On the entire record in this proceeding, including my
opportunity directly to observe the witnesses while testi-
fying and their demeanor, and on consideration of the
post-hearing briefs, it is hereby found as follows.
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a nonprofit corporation organized
under the laws of the Commonwealth of Puerto Rico en-
gaged in the operation of a postsecondary educational in-
stitution with branches throughout Puerto Rico, includ-
ing Rio Piedras and Bayamon, herein collectively called
the Metropolitan Campus, the only branches involved in
this proceeding. In the course of said operation, during
the calendar year 1981, a period representative of its
annual operations generally, the Respondent derived rev-
enues in excess of $1 million, exclusive of contributions,
and purchased and caused to be delivered to its educa-
tional institutions goods and materials valued in excess of
$50,000, directly from points located outside the Com-
monwealth of Puerto Rico.
The complaint alleges, the answer admits, and I find
that the Respondent is an employer engaged commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
11. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the Respondent at the hearing
admitted, and it is found that Congreso de Uniones In-
dustriales de Puerto Rico is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE LABOR ORGANIZATION INVOLVED
Primarily at stake in this proceeding is the question of
whether or not the Respondent in subcontracting the
janitorial work at its Metropolitan Campus, and thereby
terminating 38 employees, was motivated by a desire to
curtail union activity within its housekeeping staff. Sub-
sidiary questions are also presented as to whether Re-
spondent independently violated Section 8(a)(1) through
coercive interrogation, creating the impression of surveil-
lance, and threats of reprisal.
Basically, the facts show that the Respondent is a
major institution of advanced learning in the Common-
wealth of Puerto Rico with facilities located throughout
the Island. There is no history of collective bargaining
among any employees of the University. The Metropoli-
tan Campus consists of separate facilities located at Baya-
mon and Rio Piedras. The Rio Piedras site houses a
newly constructed building, first opened in January 1982,
at a cost of $20 million. Some 12,600 students are en-
rolled at the latter, while 3,200 attend Bayamon.
Prior to the events here in issue, janitorial services at
the Metropolitan Campus were performed by individuals
employed directly by the Respondent. However, in June
1981, the University first considered the possibility of
subcontracting those duties. As part of that process, bids
were obtained from three cleaning contractors; namely,
Caribe Cleaning Services, Inc., Antilles Cleaning Serv-
ices, and Auburn Building Maintenance. In early Decem-
ber 1981, the matter came to a head, when the president
of the University, Dr. Ramon A. Cruz, rejected the rec-
ommendation of Dr. Rafael Cartegena, the chancellor of
the Metropolitan Campus, and decided not to contract
out the janitorial work to Caribe Cleaning Services, Inc.,
herein called Caribe. Cruz elected instead to afford Re-
spondent's own employees added training and the oppor-
tunity to prove themselves capable of performing at sat-
isfactory levels. Cruz admits that the possibility of sub-
contracting the services in question was not again men-
tioned until September 17, 1982.
Throughout the spring and summer of 1982, the Re-
spondent took steps in support of this commitment to its
own work force. First, Caribe was retained as a consult-
ant to provide assistance in connection with the purchas-
ing of equipment and materials, and the training of the
Respondent's personnel in proper and efficient cleaning
procecures.' That contract expired on March 30, 1982.2
It was not renewed. In consequence thereof, pursuant to
advice received from Caribe, the Respondent, in April,
invested some $26,000 in the purchase of new cleaning
equipment. 3 Later, on June 30, the Respondent entered
an agreement with another firm, Systems for Planning
and Management, Inc., whereby the latter's president,
Duhamel A. Rivera, would work onsite at the Metropol-
itan Campus as "Director of Buildings and Grounds"
and retain responsibility for the conservation of the
campus in the areas of security and housekeeping. 4 Pur-
suant to this agreement, Duhamel Rivera assumed re-
sponsibility for supervision of the cleaning employees
and others, and, inter alia, to "make recommendations in
connection with the contracting of necessary services."
Thereafter, in late August 1982, union activity
emerged. Two janitors based at Rio Piedras, Rene Oyola
and David Gonzalez, on September 15 and 16, distribut-
ed and obtained signed union authorization cards. On
Monday, September 20, the Union filed a representation
petition with the National Labor Relations Board. That
afternoon at 3 o'clock, some 38 nonsupervisory janitorial
employees at the Metropolitan Campus were assembled
and informed that their work would be contracted out
and their employment terminated.
' See Jt. Exh. 8.
' Unless otherwise indicated all dates refer to 1982.
a See Jt. Exh. 8.
· See Jt. Exh. 9.
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UNIVERSIDAD INTERAMERICANA
In the interim, on Thursday, September 16, the day
before the decision to subcontract was made, Oyola and
Gonzalez were separately interviewed by Duhamel
Rivera and the Respondent's director of maintenance,
Jesus Rivera. It was averred by the employees that in the
course thereof the Respondent's representatives advised
that they were aware of union activity, inquired as to
whether it was true that Oyola and Gonzalez were solic-
iting union cards, and suggested that they might possibly
lose privileges or even their jobs if they persisted in such
conduct. At the same time, Duhamel and Jesus Rivera
admitted that they met separately with Oyola and Gon-
zalez on that date, but denied knowledge of any organi-
zational activity or that the latter were employee orga-
nizers. They also denied that there was any mention of
the Union in these discussions.
Assuming the credibility of Gonzalez and Oyola, it is
established prima facie that the discharges were effected
only a few days after representatives of the Respondent
learned that union organization was in progress within
the janitorial department, and attempted to thwart this
effort through illegal acts of intimidation. An inference
of proscribed discrimination would clearly arise from the
foregoing.
The effort made on behalf of the Respondent to disas-
sociate the subcontracting decision from union activity is
founded on testimony of six high-level functionaries of
the University; namely: Duhamel Rivera, director of
buildings and grounds; Jesus Rivera, director of mainte-
nance; Edwin Hernandez, dean of administration; Dr.
Rafael Cartegena, chancellor of the Metropolitan
Campus; Felix Enrique Ocasio, vice president for admin-
istration; and Dr. Ramon Cruz, president.
All deny knowledge that the Respondent's janitorial
employees had engaged in any form of union activity
prior to the contracting out of their work and all afford-
ed testimony integrated into a chain of events calculated
to inspire confidence in the assertion that this was a le-
gitimate decision founded solely on business consider-
ations.
If one were to accept the Respondent's evidence, the
event which appears to have triggered the subcontract-
ing arrangement was a supplemental budget proposal de-
veloped by Duhamel Rivera and first bared on Tuesday,
September 14, to Dean Hernandez. The proposal called
for the addition of 12-1/2 janitorial positions. Parentheti-
cally, it is noted that, previously in August, Duhamel
Rivera had commenced to make recommendations to im-
prove cleaning services at the Metropolitan Campus. On
August 30, a date which coincided with the beginning of
a new semester, at his behest, new work schedules were
implemented for janitorial employees, which increased
hours during the night shift and on Saturdays, when
fewer classes were held and janitorial work could be per-
formed with less disruption from student traffic. In any
event, on Wednesday, September 15, Duhamel Rivera,
having received tentative approval from Hernandez, per-
sonally submitted the budget proposal to Chancellor Car-
tegena.5 Cartegena assertedly inquired as to whether
5 See Jt. Exh. 12.
Rivera considered the alternative of subcontracting and
whether he had made a cost comparison measuring the
desirability of subcontracting against his present supple-
mentary budget request." Cartegena also asked whether
Rivera could "guarantee" that, if the supplementary
budget request were approved, the cleaning services
would prove satisfactory. 7 Rivera on both counts re-
sponded in the negative. Cartegena, as the testimony
goes, then instructed Rivera to meet with Dean Hernan-
dez to prepare a comparative cost analysis based on Car-
ibe's proposal made on October 26, 1981. Cartegena
made no suggestion that Rivera or Hernandez first in-
quire of Caribe as to whether vitality remained in the
proposal made some 11 months earlier.
Later in the day, on September 15, Duhamel Rivera
met with janitorial employees, describing the supplemen-
tary budget proposal that had been submitted. Those
present were informed that the success of that proposal
depended on the ability of the employees to carry out
their basic functions, and he urged them to make a maxi-
mum effort to show that they could clean the campus.
He indicated that he told the employees that if they
failed to show the administration that they could do the
cleaning, not only their jobs but his own would hang "in
balance."
As for the critical events of September 16, Duhamel
Rivera and Jesus Rivera admitted that they initiated the
separate meetings that day with David Gonzalez and
Rene Oyola. However, contrary to the testimony of the
employees, the former denied reference to union activity.
Instead, it is claimed that these two individuals were
among seven selected for interviews who were reputed
to be leaders or employees of influence, and that meet-
ings with the remaining five employees were aborted due
to the supervening decision to contract out. According
to Duhamel Rivera, the purpose of the meetings was lim-
ited to management's desire to foster a broader under-
standing of the newly implemented work schedule and to
persuade influential employees to support the new ar-
rangement. 8
I The supplemental budget proposal covered cost increments in addi-
tion to those assignable to janitorial service.
I The maintenance service industry is low wage based, labor intense,
and plagued with turnover. For this reason, it is doubtful that in a large
scale cleaning operation a guarantee that janitorial work will be per-
formed satisfactorily on a sustained day-to-day basis could be sincerely
expressed or enforced. Cartegena's premise that an independent contrac-
tor such as Caribe would afford such a guarantee impressed as born of a
desire to exaggerate by sheer argumentation the beneficial results to be
achieved through subcontracting.
8 The fact that such interviews were limited to employee organizers is
one of a number of coincidences imbedded in the Respondent's justifica-
tion for the subcontracting decision. To explain away suspicion, the Re-
spondent points to testimony that five other employees were designated
for similar meetings and that it was intended that meetings be held with
four on September 16 and three others on a later date. However, of the
four selected, two were not available and hence the meetings of Septem-
ber 16 involved only Rene Oyola and Angel David Gonzalez, as they
happened to be available. There were no further meetings because, on the
morning of September 17, Duhamel Rivera, by happenstance, learned of
the decision to contract out. No Bayamon employees were among the
seven allegedly selected for interview.
1173
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Meanwhile, Dean Hernandez, on September 15, as the
testimony goes, was busily engaged in preparation of the
cost analysis requested by Dr. Cartegena. Both agree
that the typed report was submitted to Cartegena on
September 16. The document reflects a savings of
$247,826 annually through contracting out to Caribe
Cleaning. As indicated, this calculation was made on the
basis of a proposal made by Caribe 11 months earlier,
and without inquiry as to whether it was still in effect.9
Armed with this, Dr. Cartegena, in the 100j) proceeding
before the United States District Court,'° explained his
next step, and the basis for it, as follows:
Well, it was substantial savings. On the other
hand, the Engineer Duhamel Rivera could not
guarantee that we would have an acceptable level
of cleaning, which I could have with the company
because once a company is contracted, what you
really contract out is a certain level of cleaning.
And this level of cleaning costs "x" amount of
money.
So, I was-I was sure that-well, we have tried
and we have done everything in our hands to let
our employees learn the new system. The situation
did not improve. Not only that, but the person who
is-as the consultant tells me, that he needs twelve
and a half additional positions, and over and above
that, he could not guarantee any level of cleaning.
So, really, at that time I decided that I would
strongly recommend to the president that I would
reiterate my original recommendation, namely, that
we contracted [sic] out the services of Caribe
Cleaning.
On the morning of September 17, Cartegena claims to
have met with the president of the university, Dr.
Ramon A. Cruz. According to Cartegena, he informed
the president as follows:
I told the president that he knew the situation at the
campus. As a matter of fact, he had written to me
regarding that situation, that the engineer was re-
questing twelve and a half new positions and "x"
amount of money to do the job; that the employees
were reluctant and have shown difficulties in carry-
ing out the new work schedules necessary for the
cleaning. Consequently, that I would strongly rec-
ommend that we contracted [sic] out Caribe Clean-
ing.
Cruz and Cartegena agree that Cruz then allegedly
posed the obvious question as to whether Cartegena
"was sure whether Caribe Cleaning was maintaining
their conditions of the proposal they had submitted back
in November 1981." As indicated, Cartegena had not
* See R. Exh. 5.
to Prior to the instant hearing, a proceeding was instituted by the Gen-
eral Counsel in the United States District Court for the District of Puerto
Rico under aegis of Sec. 10(j) of the Act. Following hearings on January
19, 20, 21, 24, and 25, the Honorable Jaime Pieras, Jr., U.S. District
Court Judge, on February 17, 1983, issued an "Opinion and Order" to
the effect that "This Court cannot conclude that interim injunctive relief
would be just and proper in the case at bar." See R. Exh. 6.
bothered to check. Indeed, he acknowledged that he had
no recent contacts with Caribe either directly or indi-
rectly prior to September 17. According to his testimo-
ny, he called Dean Hernandez urging the latter to con-
tact Caribe and to inquire as to whether they would
stand on their I -month old proposal. Later, according
to Cartegena, Hernandez telephoned him back, reporting
that Caribe would do so.
Cruz corroborated Cartegena while under examination
by me as follows:
JUDGE HARMATZ: And Cartegena, he came to
you kind of out of the blue, didn't he? I mean, had
you-
DOCTOR CRUZ: He came to me quite concerned
about the situation he had.
JUDGE HARMATZ: Right. What was it that had
him aroused at that point in time? Was there any-
thing specific that he mentioned that caused him to
come to you?
DOCTOR CRUZ: Well, he simply reminded me
that I had refused to accept this company contract
before, but that the situation he felt was out of his
control. He wanted me to reconsider the decision.
JUDGE HARMATZ: Okay. And when was the last
time he had mentioned this proposal to you, this
recommendation to you, prior to that?
DOCTOR CRUZ: It was back in 1981, before we
had moved to the new building.
JUDGE HARMATZ: And that was the last time that
he mentioned it to you? 1981, before you moved to
the new building was the last time that he had men-
tioned this proposal?
DOCTOR CRUZ: Yes, that's correct.
JUDGE HARMATZ: So this is some nine months
later, at least.
DOCTOR CRUZ: That's correct.
JUDGE HARMATZ: And he's asking you to recon-
sider nine months later. Now, did he tell you why
he wanted you to reconsider it?
DOCTOR CRUZ: Well, he told me that in spite of
the fact that we had gone through a training of em-
ployees and we had purchased new equipment the
situation on the campus was no better, and that he
was being asked for an additional amount of money
to hire more employees and more equipment. And
he felt that this was the right time to make the deci-
sion.
l Jose Fermaint, Caribe's general manager, confirmed such a conver-
sation. While admitting that labor was the most expensive cost factor
under a maintenance contract, he did not appear to clearly recall when
the collective agreement covering his employees granted periodic in-
creases during the years 1981-1982. This, despite the fact that intervening
wage increases or predictable changes in wage levels during the term of
any new maintenance contract would have direct bearing on the econom-
ic feasibility of resurrection in tact of an I l-month-old proposal. It is also
noted that, according to Fermaint, the collective-bargaining agreement
between Caribe and the "bona fide" union representing Caribe's employ-
ees was scheduled to expire in December 1982, only a few months after
Caribe entered a formal contract with Respondent. That collective-bar-
gaining agreement presumably would have been subject to renegotiation
at that point.
1174
UNIVERSIDAD INTERAMERICANA
Cruz, having decided to accept Cartegena's recom-
mendation, next asserts that he called Felix Ocasio, the
Respondent's vice president in charge of administration.
Ocasio is alleged to have recommended that the decision
be carried out as fast as possible for security reasons;
namely to avoid vandalism, sabotage, and disruption on
the part of employees who had access to sensitive areas
and expensive and critical equipment.
With Ocasio's alleged advice, Cruz inquired of Carte-
gena as to how quickly the contract could be set in
motion. Cartegena again called Hernandez, who again al-
legedly contacted Caribe, reporting back that they
would be ready to perform on Monday, September 20. 2
The first confrontation between representatives of the
Respondent and Caribe did not take place until 4:30 p.m.
on September 17. At that session,1 s terms of a contract
were discussed and an understanding was reached that
Caribe would take over the janitorial services at 7 p.m.
on Monday, September 20. Caribe agreed to purchase
the cleaning equipment recently acquired by the Re-
spondent and also to purchase materials held in invento-
ry by the Respondent. Dr. Cruz did not participate in
that meeting. Later, a written agreement was executed
on Wednesday, September 22, 1982.'4
Also on September 17, following the meeting with
Fermaint, certain of Respondent's representatives met to
devise the means by which its maintenance employees
would be notified of their termination the following
Monday.
On Monday, September 20, at approximately 4:15 in
the afternoon, a meeting was conducted with the janito-
rial employees. They were given three documents. One
notified them of their termination, a second related to an
extension of benefits until December 1982, and a third
consisted of an invitation by Caribe for the dischargees
to file job applications with that firm. ' 1
At first blush and on a cold reading, testimony offered
in support of the defense was not without appeal. Thus,
it clearly is fact that the performance by the janitorial
staff had been an object of criticism and a matter of con-
tinuing concern to the University's administration.
Indeed, the subcontracting of that work was previously
considered a year earlier. Also working in the Respond-
ent's favor was the fact that the defense was shouldered
by a bevy of distinguished witnesses. Dr. Ramon Cruz,
the president of the Respondent, and the chief executive
of one of the largest advanced learning centers in the
Commonwealth had placed his integrity on the line.
Joining him were Felix Ocasio, the University's vice
president in charge of administration, as well as the
chancellor of the Metropolitan Campus, Dr. Cartegena,
n" It is noteworthy that before the decision was made, neither Carte-
gena nor Cruz nor any other representative of the Respondent had any
direct face-to-face contact with any representative of Caribe. All actions
were taken based on information relayed from Hernandez, who was in
telephonic communication with Fermaint of Caribe.
1" According to Fermaint the University was represented by Hernan-
dez, Felix Ocasio, and University attorneys Jean Villilla and Costa del
Moral. Neither Cruz nor Cartegena attended.
14 See Jt. Exh. 12.
' By a virtue of the agreement between Caribe and the Respondent,
Caribe was obligated to provide employment to 25 of the discharged em-
ployees.
and its dean of administration, Attorney Hernandez. In
contemplating the probabilities, I found it difficult to
accept that academicians of such prominence would
place their integrity on the line and violate the oath to
veil an act of discrimination as against the lowest eche-
lon of the University's employees. Nonetheless, as shall
be seen, I am convinced that each contributed to a web
of prevarication in an overall effort to wrong the dis-
chargees.16 Thus, the Respondent's witnesses testified
from an argumentative and evasive stance and in a fash-
ion not atypical of that afforded by those having some-
thing to hide. The asserted business justification was
punctuated by significant omissions, shifting explanations,
improbability, astonishing coincidence and, on its face,
was implemented under nondeliberative conditions of the
type familiar where illegal conduct is masked by pretext.
But these impressions might well have been overlooked
were it not for unmistakable evidence that a document,
central to the defense, lacked authenticity, and had to
have been concocted by certain of the Respondent's wit-
nesses to influence in its favor the litigation before the
United States District Court and the National Labor Re-
lations Board. 7
In connection with the latter, it will be recalled that
Hernandez testified that on instruction from Cartegena,
relayed by Duhamel Rivera, he prepared a cost analysis
on September 15, which he delivered to Cartegena on
September 16. Cartegena in turn testified in the 10(j) pro-
ceeding that, on September 17, he presented this "anayl-
sis" to Dr. Cruz. The document in question was offered
in the proceeding before the United States District Court
as Joint Exhibit L and before me as the Respondent's
Exhibit 5. It showed that the University would realize
savings of $247,826 during the period 1982-1983 by con-
tracting out. However, contrary to the Respondent's tes-
timony, the General Counsel in his brief argues convinc-
ingly that this document could not have existed in its
proffered form at any time prior to September 20. For it
showed that $22,822 would be realized from the sale of
equipment and material. Yet, it is clear that there was no
contact between Caribe and the Respondent until Sep-
tember 17. Moreover, according to Fermaint in a tele-
phone conversation with Hernandez on the morning of
September 17, the latter inquired as to whether Caribe
16 Witnesses offered by the General Counsel were not the most im-
pressive I had ever seen. The existence of union activity was established
through Jose Alberto Figueroa, a nonemployee union organizer, David
Gonzalez, Rene Oyola and Diego Rivera, the latter three being janitors
who were terminated on September 20. As shall be seen, Diego Rivera
was not viewed as a believable witness, and I have declined to give cre-
dence to his testimony where uncorroborated. At the same time, Fi-
gueroa, Gonzalez, and Oyola labored under breakdowns in recollection
as to when the campaign started and while their testimony was not en-
tirely consistent, these deficiencies were negligible compared to the gross
distortion of fact apparent in the Respondent's proof. Indeed, suspicion
generated by the Respondent's own evidence with respect to highly ma-
terial matters actually served to enhance the probability of the critical
testimony offered by Gonzalez and Oyola concerning the meetings with
the Riveras on September 16. In sum, the testimony proffered in support
of the defense was so plainly lacking in truth that it actually served to
reenforce the existence of an unlawful motive herein, and along with it,
the believability of the testimony pointing rationally to that conclusion.
1s The document in question appears to have been relied on by Judge
Pieras. See R. Exh. 6, Findings of Fact 17 and 18.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would purchase the University's equipment. Fermaint re-
sponded that he was not at that time at liberty to discuss
the matter, but would have to check records and deter-
mine what position would be most advantageous for his
firm. Later that afternoon, as Fermaint puts it, "I made
the University an offer which they deemed proper for
the purchase of said equipment." Fermaint also relates
that, on the afternoon of September 17, Caribe agreed to
purchase the University's cleaning supplies, but only
after valuation through a physical inventory which did
not take place until Monday, September 20. Quite obvi-
ously therefor, the amount paid by Caribe for the equip-
ment and supplies remained in an unpredictable state
until Fermaint's offer for the purchase of equipment on
September 17 and the completion of the inventory on
September 20. The sum ultimately agreed to was memo-
rialized in the contract formally executed on September
22, as $6,800 for the purchase of materials and $16,022,
for the purchase of equipment. Thus, the total purchase
price was $22,822, the identical figure allegedly used by
Hernandez in preparing the cost analysis on September
15 and 16. See Joint Exhibit 12. This is the most aston-
ishing in a series of remarkable coincidences underlying
the defense. Quite obviously, according to the clear, un-
disputed testimony of Fermaint, an individual whose in-
terest in this proceeding was allied with that of the Re-
spondent, this figure would not have been available to
Hernandez, on September 15, when he allegedly pre-
pared the document, or on September 16, when Carte-
gena allegedly examined the document, or on September
17, when the "analysis" was given to Cruz, or for that
matter at any time prior to the completion of the inven-
tory and assignment of dollar value to it on Monday,
September 20. From this it follows that the decision to
subcontract was made on September 17 without benefit
of any cost analysis showing that such a course would
produce savings of $247,826.
The fictitious nature of the Respondent's Exhibit 5 is
reenforced by testimony on the part of Hernandez that
the $22,822 figure was derived from Caribe's October 26,
1981 proposal. Indeed, Hernandez went so far as to testi-
fy that it was a fair assumption that those figures would
have remained the same 11 months later. Simply put, this
could not have been. For, according to my examination
of Caribe's earlier proposals, no specific monetary sum
was mentioned, but the matter was left to future negotia-
tion. Thus, the only relevant reference in Joint Exhibits 1
and 2 is the following stipulation:
Considering the University has already made an
original investment in equipment and materials, the
contractor is willing to acquire these equipments
and materials at a reasonable price for both parties
if the University so wishes.
In any event, it is undisputed that the University expend-
ed substantial capital in acquiring new equipment after
the 1981 proposal and in April 1982. Moreover, as indi-
cated, the value of materials was not subject to predeter-
mination but required a physical inventory at the time of
takeover. The testimony of Hernandez was plainly false
and I am convinced, as the General Counsel contends,
that the Respondent's Exhibit 5, a document that lies at
the cornerstone of the Respondent's economic defense,
constituted a complete fabrication, manufactured out of a
desire to obscure the true reason for the decision to con-
tract out the janitorial work.
Against this background, my own misgivings concern-
ing other aspects of the defense which seemed to lack
plausibility or impressed as gravely suspect are affirmed
as part and parcel of a comprehensive effort to conceal
what actually transpired. These areas are outlined below:
1. Testimony offered by the Respondent indicates that
the decision to contract out was hastily arrived at, with-
out participation of Duhamel Rivera or Jesus Rivera, the
individuals with day-to-day supervisory responsibility for
maintenance operations. It will be recalled that knowl-
edge and union animus had been imputed to both by wit-
nesses for the General Counsel. In the circumstances, the
exclusion of Duhamel Rivera raises some interesting
questions. For as recently as June 30, the Respondent
contracted for the services of Rivera's consulting firm
for the purpose, inter alia, of providing supervision and
enhancing performance of the Respondent's cleanup
crews. The contract was to continue for a period of 1
year, expiring on June 30, 1983, with compensation af-
forded by the University at a rate of $2,083.33 monthly.
On August 30, a new system, devised by Duhamel
Rivera, was implemented. The discharge decision was
made at a time when Rivera was in the process of orient-
ing cleaning crews to that new system only 3 weeks after
commencement of a new semester. Meetings had been
held, repeatedly, with different combinations of janitorial
crews, and others were scheduled when Duhamel Rivera
was informed in casual fashion of the discharge decision.
Although Duhamel Rivera had been retained to provide
counselling in the area of "the contracting out of neces-
sary services," and while Cruz had been alerted to Ri-
vera's request that 12-1/2 additional janitorial positions
be allocated, Cruz expressed no curiosity as to the logic
behind this request, nor did he inquire of Caribe as to its
views on the question of whether work demands at the
new facility justified an enlarged janitorial force.
2. Cruz made the decision hastily during a 30-minute
period, without development of current facts in conso-
nance with sound procurement practices. When in 1981
the Respondent considered the possibility of contracting
out janitorial services at the Metropolitan Campus, delib-
erations took place over a period of 5 months. Three
contractors submitted bids. Although Caribe had submit-
ted its bid on October 26, 1981, and Cartegena at that
time allegedly recommended acceptance of that bid,'s it
was not until December 2, 1981, that Dr. Cruz rejected
this recommendation and elected to afford additional
training to the existing complement of janitors and to
retain them. It is noted that Dean Hernandez testified
is As an aside, I was struck by the fact that on September 17 Carte-
gena, though acknowledging that he was aware that employees of Caribe
were represented by a labor organization, found it unnecessary, before
approaching the president of the University, to obtain an update on the
October 26, 1981 proposal. Instead, it is the sense of his testimony that
his recommendation to Cruz was on the basis of a cost analysis which at
that juncture remained purely hypothetical.
1176
UNIVERSIDAD INTERAMERICANA
that the Caribe Cleaning proposal of October 1981 was
"much more expensive" than that submitted in the fall of
1981 by Auburn, a competitor. Jose Fermaint, Caribe's
general manager, acknowledged that his firm was only
second or third in volume among janitorial contractors
in the Puerto Rican market. He also acknowledged that
the Respondent's contract was the largest held by his
firm when obtained in September 1982. No explanation is
offered as to why other contractors were not afforded an
opportunity to compete when the Respondent finally
elected to contract out its janitorial services.
The haste with which Cruz acted prevented him from
touching base with either the board of directors or the
executive committee, a step which, considering the
bylaws of the University, raised serious question as to
Cruz' credibility both as an administrator and witness.
Thus article III, section 3.2, subsection C, thereof, pro-
vides as follows:
Any single contract, application, document or pro-
posed lease of property used or to be used by the
University commiting for obligating to the Universi-
ty of the total of more than $100,000 (one hundred
thousand dollars) in aggregate salary, rental or pur-
chase price payment shall be previously authorized
by the board of trustees or by its executive commit-
tee.
Cruz excused his failure to seek such authorization by af-
fording testimony in the instant hearing and in the 10(j)
proceeding to the effect that he knew this provision to
be inapplicable to the Caribe arrangement. However, his
explanation as to why he was of this frame of mind on
September 17 was so shifting and lacking in substance as
to suggest a lack of veracity. Thus, before the District
Court, Dr. Cruz testified that the above restriction did
not apply to service contracts, but was limited to leases
and purchases of materials, supplies, and equipment.
However, no such qualification is suggested by the
above provision, and its ordinary meaning suggests oth-
erwise. On the other hand, when questioned by me as to
this matter, Cruz indicated that prior authorization was
unnecessary because janitorial costs had been budgeted
and the relevant provision of the bylaws only applied to
nonbudgeted expenditures.' 9 Here again, there is no such
limitation expressed on the face of that provision. Fur-
thermore, the inherent purpose of such limitations, i.e., to
mitigate losses due to possible conflict of interest or kick-
backs in the procurement process, would hardly be
served if only nonbudgeted expenditures were covered.
Furthermore, it is extremely doubtful that, as Cruz im-
plies, the chief executive could, on his own, effect non-
budgeted purchases up to $100,000. The testimony af-
forded by Cruz, in this respect, struck me as bootstrap
and contrived to cover his participation in an ultra vires
'9 President Cruz attempted to bridge the differences in his testimony
before the district court by offering that he neglected to mention the lim-
itation to nonbudgeted amounts, because of the rapidity with which ques-
tions were shot at him by Board counsel in that proceeding. It is appar-
ent, however, as he later conceded, that his own counsel afforded him
full opportunity to explain why he felt that art. III, sec. 3.2, subsec C,
was not applicable to Caribe's contract.
act. Regrettably, I note that my impression of the overall
testimony afforded by Dr. Cruz, weighed against other
disclosures herein, was that he willingly enmeshed him-
self in a conspiratorial disregard for truth.2 0
Another high-ranking administrator, Felix Ocasio, was
offered to allay suspicion as to the timing of Cruz'
action. It is noted in this connection that this suspicion is
enforced by a number of objective factors, including the
fact that the decision to terminate the 38 employees was
made abruptly and in the middle of a pay period. It oc-
curred 3 weeks into a new semester, after the Respond-
ent, without resurrecting the possibility of subcontract-
ing, had an opportunity to evaluate the performance of
the cleaning staff in the new Rio Piedras building during
a full spring semester which ended in mid-May and
summer sessions which ended in July. 21 Moreover, the
decision was made early in the tenure of Duhamel
Rivera, occurring only 2-1/2 months after the consulting
agreement was entered and in the course of his first
formal attempt, invoked some 3 weeks earlier, to im-
prove the quality of janitorial services. Indeed, while this
process was in motion, Cruz, without seeking counsel of
Duhamel Rivera, determined to eliminate the janitors
and contract away their work, without soliciting com-
petitive bids or approval of either the board of directors
or the executive committee of the University. Despite
the fact that the issue of contracting out had not been
discussed by Cartegena and Cruz since December 1981,
Caribe was installed with such haste that a formal writ-
ten contract was not entered until 5 days later.
Ocasio did not dispel the suspicion arising from the
foregoing. His explanation for Cruz' conduct was unper-
suasive. It is clear, from testimony of both Cruz and
Ocasio, that the decision was made first, and then Oca-
sio's guidance was sought by telephone as to the means
of implementation. Thus, as Ocasio did not participate in
the decision itself, his advice was after the fact and fur-
nished no explanation for the haste with which Cruz
reached his decision and the failure of Cruz and Carte-
gena to take a more studied approach.
Furthermore, the testimony of Ocasio, Cruz, and Her-
nandez that Ocasio recommended immediate implemen-
tation for security reasons is itself suspect. The possibility
of subcontracting, as well as the rumors that would natu-
rally be generated thereby, had previously been experi-
enced at the Metropolitan Campus, apparently without
incident. For, it will be recalled that in 1981 the Re-
spondent made a full-blown study of the possibility of
contracting out the janitorial service over a 5-month
span, a matter necessarily opened to the public through
20 Although Cruz claims to have made the decision to subcontract, his
testimony on examination by the Respondent's counsel seemed deliberate-
ly general, devoid of specifics, and seemingly sanitized. Most curious in
this respect is the fact that though Cartegena testified that on September
17 he presented to Cruz R. Exh. 5, Cruz did not reveal whether or not
this was so, or that he made his decision based on reference to any form
of documentation whatever.
21 In August 1982, no classes were scheduled, and the facilities were
used solely for purposes of student registration. The testimony of Carte-
gena to the effect that student traffic during that period was "very
heavy" impressed as argumentative, unbelievable, and calculated to de-
ceive, Ultimately, he did admit that only one-third of the classrooms
were in use during that month.
1177
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the solicitation of bids. No evidence was presented as to
any adverse expression from its janitorial work force
during that period. The assumption that continued delib-
eration in 1982, rather than the hasty decision which was
made, would meet with a different experience fits a pat-
tern of shallow and seemingly contrived testimony. Con-
sidered against the total record, I did not believe Ocasio
and find that he, too, was among high-level officials of
the University who afforded false testimony to obscure
the discrimination perpetrated in this case.
In sum, it is concluded that the claim that the Re-
spondent elected to contract out to Caribe and terminate
its employees for legitimate business reasons was a scan-
dalous sham orchestrated within the highest administra-
tive levels of the University. As heretofore indicated, at
the cornerstone of the defense lay a document so crudely
conceived as to render inescapable the conclusion that it
was manufactured as an act of desperation to impede a
straightforward adjudication of statutory rights. Beyond
that, the incredible testimony afforded on behalf of the
defense was so pervasive as to lend heightened probabili-
ty to the testimony of David Gonzalez and Rene Oyola
as to the events of September 16. Thus, contrary to the
testimony of Jesus Rivera and Duhamel Rivera, it is in-
ferred that on or before the meetings of that date both
learned that organization activity was underway and that
David Gonzalez and Rene Oyola were the vanguard.2 2 I
find that it was more than just coincidence that they
were the only employees with whom the Riveras met on
September 16, and I find that the purpose thereof was to
confront the employees with discovery of their involve-
ment and to persuade them, through intimidation, to
cease activity on behalf of the Union.23 It is concluded
"m Diego Rivera, another janitor, testified that he had several encoun-
ters with supervisors, who told him that the discharges were union in-
spired. Thus, he related that Manuel Gonzalez, a supervisor of janitors on
the nightshift, and Director of Guards Jose Aldeya, in separate conversa-
tions, either stated or implied this to him on September 20, after employ-
ees were notified of their discharge. Gonzalez denied having made any
such statement. Aldeya was not available as he was incarcerated in prison
at the time of hearing. I was not impressed with the demeanor of Diego
Rivera, and his uncorroborated testimony did not ring true. Notwith-
standing my misgivings concerning the reliability of witnesses presented
by the Respondent, in this instance, I am willing to give the Respondent
the benefit of the doubt. Also based on Diego Rivera's further testimony,
the General Counsel attributes an admission of improper motive to Cruz,
during an interview following the discharges on September 23. The Gen-
eral Counsel argues that Rivera's testimony in this respect indicates that
Cruz implied that had he known the identity of the union leaders he
would have terminated them alone, and not all of the employees. Howev-
er, Rivera's testimony seemed garbled and, in the form presented, it
seemed unlikely and improbable. In any event, the matter is cumulative
and here again I shall give the Respondent the benefit of the doubt.
2a Rene Oyola testified that on January 23, 1983, he by chance met
Maintenance Supervisor Julio Casado at a funeral. Oyola claims that
during the course of their conversation Casado stated that he knew that
the janitors had been fired because they were trying to bring in a union.
Casado admits to having met Oyola on the occasion in question, and to
the fact that they had discussed the proceeding then pending in the
United States district court. He denied making the specific statement im-
puted to him by Oyola as to the reason behind the discharge. Although
the Respondent disputes the assertion that Casado was a supervisor
within the meaning of Sec. 2(11) of the Act, and though I would reject
this claim, that issue and the basic question of credibility need not be
reached, because in my opinion, even if the statement were made, it was
not shown to have been anything more than an expression of personal
opinion by a low-level supervisor, not likely to be privy to the true rea-
that in the course thereof Duhamel Rivera created the
impression that the Respondent was aware of their union
activity, unlawfully questioned them concerning union
activity, and that he and Jesus Rivera implied that con-
tinued organizational activity could result in loss of privi-
leges and discharge, all in violation of Section 8(a)(l) of
the Act. Moreover, such elements as timing, knowledge,
union animus, and the false testimony furnished by the
Respondent's witnesses all contribute to a solid inference
that the Respondent terminated its employees on Sep-
tember 20 on the basis of the recently acquired knowl-
edge of union activity and to thwart, at its inception, or-
ganization activity among these easily replaceable em-
ployees. Accordingly, it is concluded that the Respond-
ent thereby violated Section 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Respondent independently violated Section
8(a)(1) of the Act by creating the impression that union
activity of employees was subject to surveillance, by co-
ercively interrogating employees concerning union activ-
ity, and by threatening that continued union activity
could lead to discharge or other reprisals.
4. The Respondent violated Section 8(aX3) and (1) of
the Act by on September 20, 1982, terminating the 38
employees listed on Appendix B attached hereto and
contracting out their work in order to thwart organiza-
tion activity among them.
5. The above unfair labor practices constitute unfair
labor practices having an effect upon commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, it shall be recommended that
the Respondent be ordered to cease and desist therefrom
and to take certain affirmative action designed to effectu-
ate the policies of the Act. Furthermore, on the evidence
presented here, it is concluded that the Respondent re-
acted to a budding organization campaign swiftly and in
callous disregard for the guaranteed rights of its employ-
ees. It thereby engaged in an unfair labor practice so fla-
grant as to inherently reflect a proclivity to violate the
Act. Accordingly, a broad cease-and-desist order shall be
recommended requiring the Respondent to cease and
desist from "in any other manner" interfering with, co-
ercing, or restraining employees in the exercise of their
Section 7 rights. See Hickmott Foods, 242 NLRB 1357
(1979).
With respect to the subcontracting and discriminatory
discharge of the janitorial work force, it shall be recom-
mended that the Respondent be ordered to restore the
janitorial function, and to offer immediate reinstatement
sons underlying the mass discharge. Moreover, the incident is purely cu-
mulative and unnecessary to the result reached.
1178
UNIVERSIDAD INTERAMERICANA
to the employees listed on Appendix "B," attached
hereto, to their former positions, without prejudice to
their seniority and other rights and privileges. In so rec-
ommending, I reject as lacking in merit the contention of
Caribe that such relief is inappropriate in the circum-
stances of this case. The Board has held, even in cases
where union animus is lacking, that the appropriate
remedy for job displacement due to subcontracting re-
quires a return to the status quo ante, absent evidence of
undue hardship.24 No such showing has been made here.
The fact that restoration might require termination of
Caribe's present employees on this project hardly fore-
closes such a remedy, for this group enjoys employment
solely as the beneficiary of the Respondent's unlawful
discrimination. Furthermore, these employees, and their
employer, Caribe Cleaning Services, Inc., will suffer no
consequences under such a remedial formula beyond that
which would be sustained under cancellation of the con-
tract on 30 days' notice, action which the Respondent
was free to take for any reason. See Joint Exhibit 12,
section 7. Thus, the General Counsel's claim as to the ap-
propriateness of a conventional Board order, including
reinstatement, has not been refuted by substantial evi-
dence. Finally, it shall be recommended that the Re-
spondent be ordered to reimburse employees listed in
Appendix "B," for all loss of earnings they have incurred
since September 20, 1982, and until the Respondent pro-
vides a bona fide offer of reinstatement, less net interim
earnings. Said backpay shall be computed on a quarterly
basis as provided in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as authorized by Florida Steel Corp.,
230 NLRB 651 (1977).25
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommended
ORDER 26
The Respondent, Universidad Interamericana de
Puerto Rico, Inc., San Juan, Puerto Rico, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating, creating the impression of surveil-
lance, or threatening employees because they have en-
gaged in union activity.
(b) Discouraging membership in a labor organization
by discharging, or in any other manner, discriminating
against employees because they elect to join, form, or
assist a labor organization.
(c) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
14 See, e.g., Equitable Gas Co., 245 NLRB 760 (1979).
2 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
"I If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act.
(a) Offer to the employees listed on attached Appendix
B hereto, immediate reinstatement to their former posi-
tions, without prejudice to their seniority or other rights
and privileges, and make them whole in the manner set
forth in the section of this Decision entitled "The
Remedy."
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary or appropriate to analyze the amounts due under
the terms of this order.
(c) Post at its facilities located in Rio Piedras and Ba-
yamon, Puerto Rico, bilingual copies of the attached
notice marked "Appendix A." 27 Copies of said notice on
forms provided by the Regional Director for Region 24,
after being signed by the Respondent's authorized repre-
sentative, shall be posted immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
27 If this Order is enforced by a Judgment of the United States Court
of Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
APPENDIX B
Tomas Diaz Cordero
Olga Rodriguez
Juan Martinez
Juan de la Cruz
Luis Pineiro
Efrain Cedeno
Alfonso Melendez
Emilio Colon
Julio Alicea
Diego Rivera
Carmelo Colon
Moises Oyola
Rene Oyola
Eduardo Natal
Pedro Vazquez
Angel Martinez
Rafael Torres
Victoriano Gonzalez
Jose Gotay
Angel Gonzalez
Santa Perez
Salvador Acevedo
Antonio Santiago Ramos
Escolastica Rodriguez
Manuel Colon Vazquez
Felix Pagan
Jose Flores Serrano
Jose Hernandez
Lydia Colon Canales
Candido Cosme
Jose A. Diaz
Francisco Oquendo
Aurea Rivera Vargas
Israel Rodriguez
Martin Sierra
Lina Sierra
Miguel Angel Arroyo
Saturnino Calderon
1179