Valencia Baxt Express, Inc.

National Labor Relations Board - Board Decisions

Jun 27, 1963

143 N.L.R.B. 211 (N.L.R.B. 1963)

VALENCIA BAXT EXPRESS, INC. 211
,on September 29, a "few days" after September 26 when Garza visited the Navy
recruiting center.
In my Intermediate Report I found that Hernandez and Garza had not said they
were going to Texas. I now find that they had said on several occasions that they
were going to visit Texas in December. I find they did not say they were going
to visit Texas in July, August, or anytime but December.
II. CONCLUDING FINDINGS OF FACT
Having restudied and reanalyzed the entire record in this proceeding and having
.reconsidered the demeanor of all witnesses, I reaffirm all findings of fact made by
me in my Intermediate Report, except as modified herein. The entire record, par-
ticularly the credited portions of testimony of Cochran, makes inevitable a finding
that Respondent violated Section 8(a)(1), (3), and (4) of the Act as found in
the Intermediate Report. I again so find.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
I reaffirm my findings in the Intermediate Report with respect to the effect of
the unfair labor practices upon commerce.
IV. THE REMEDY
I shall recommend that the backpay to be paid to Garza and Hernandez also in-
clude interest at the rate of 6 percent per annum, to be computed in the manner set
forth in Isis Plumbing & Heating Co., 138 NLRB 716, decided since my Intermediate
Report. Otherwise, I recommend the same Remedy I did in my Intermediate Report.
CONCLUSIONS OF LAW
I reaffirm the Conclusions of Law as stated in my Intermediate Report.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law and upon
the entire record in the case, I recommend the same Order as that recommended in
my Intermediate Report except that Hernandez and Garza are to be made whole in
the manner set forth in the "The Remedy" section of this Supplemental Intermediate
Report. Further, the Appendix is to be amended by substituting "60 consecutive
days from the date of posting" for "60 days from the date hereof."
Valencia Baxt Express , Inc. and Seafarers International Union
of North America , Atlantic, Gulf , Lakes and Inland Waters
District, Puerto Rico Division , AFL-CIO and Teamsters,
Chauffeurs, Warehousemen and Helpers , Local 901, IBTCW
& H of America . Case No. 24-CA-1554. June 27, 1963
-DECISION AND ORDER
On March 5, 1963, Trial Examiner Rosanna A. Blake issued her
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermedi-
ate Report. Thereafter, the Respondent and the Intervenor filed ex-
ceptions to the Intermediate Report and supporting briefs,' and the
'The Respondent 's request for oral argument is hereby denied , as the record , including
the exceptions and briefs, adequately presents the issues and the positions of the parties.
143 NLRB No. 26.
717-672-64-vol. 143-15
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel filed a memorandum in support of the Intermediate
Report.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed 2 The Board has considered the In-
termediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions , and recommenda-
tions of the Trial Examiner.3
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner, as modified below'
2 The Intervenor has excepted to the Trial Examiner 's denial of its motion to strike all
testimony in the record submitted prior to the Intervenor 's participation in the hearing.
We find no merit in this exception Although the Regional Director's denial of Interven-
tion had been standing for over 2 months, no appeal was taken to the,Board until the
hearing had been In process nearly a week At this time, the Intervenor finally presented
its motion to intervene to the Trial Examiner. The Trial Examiner allowed Intervention
and extended the hearing to permit Intervenor time to prepare for the hearing. Further,
to protect the Intervenor' s interest , the Trial Examiner granted it the right to submit
memorandum suggesting questions that might be asked of witnesses , if recalled , and mak-
ing objections which might have been made to testimony which was Introduced without
objection . When the Intervenor objected to testimony of certain witnesses in a memo-
randum, the Trial Examiner specifically stated in the Intermediate Report that no findings
would be made based on their testimony . Moreover , according to Section 102.29 of the
Board's Rules and Regulations , the Trial Examiner may permit Intervention "to such
extent and upon such terms as he may deem proper." As the Intervenor admits, the
Trial Examiner 's position was a reasonable one Accordingly, we find that the Trial
Examiner acted in a proper manner and we hereby deny the Intervenor ' s renewed motion.
3 The Board 's Decision and Order in Teamsters, Chauffeurs, Warehousemen and Helpers,
Local 901 , IBTCW & H of America ( Valencia Baxt Express, Inc ), 137 NLRB 808, which
involved the same parties and dealt with several of the issues in the instant case, was
enforced by the Court of Appeals for the First Circuit on March 11, 1963. See 314
F. 2d 792.
4 The Trial Examiner's Recommended Order is hereby modified by changing paragraph
1(b) to read as follows:
Negotiating with Teamsters , Chauffeurs , Warehousemen and Helpers, Local 901,
IBTCW&H of America concerning employee grievances unless or until Teamsters
Local 901 shall have been certified by the National Labor Relations Board.
In adopting the Recommended Order , we hereby conform the Appendix to the Order by
deleting from the second paragraph of the Appendix the words "or any other labor organi-
zation" and "without the Seafarers having been given an opportunity Ito be present at the
adjustment thereof."
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding, brought under Section 10(b) of the National Labor Relations
Act, as amended , was heard before Trial Examiner Rosanna A. Blake at Santurce,
Puerto Rico, on various dates between August 14 and October 1, 1962 , pursuant to
due notice.' The complaint, issued on May 17 , 1962 , by the General Counsel of
1 For the reasons stated during the hearing , the Trial Examiner denies the renewed
motion of the Intervenor to strike all testimony received prior to the granting of Its mo-
tion to intervene or, in the alternative , to recall the witnesses for cross -examination by the
VALENCIA BAST EXPRESS, INC. 213
the National Labor Relations Board, based on charges filed on January 25 and
February 16, 1962, alleged that Respondent had engaged in unfair labor practices
proscribed by Section 8(a)(1), (2), and (5) of the Act. In its answer, Respondent
admitted certain allegations of the complaint, such as the commerce allegations,
but denied having committed any unfair labor practices.
All parties waived oral argument. Only counsel for the Intervenor filed a brief.
Upon the entire record of the case, the brief filed by the Intervenor, and from my
observation of the witnesses while testifying, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF VALENCIA AND THE LABOR ORGANIZATIONS INVOLVED
Valencia Baxt Express, Inc., a Puerto Rico corporation with its principal office
and place of business in San Juan, Puerto Rico, is engaged in the truck transporta-
tion business. During the year prior to the issuance of the complaint, Respondent
derived a gross income in excess of $50,000 from truck transportation services
furnished pursuant to contracts or arrangements with, or as agents for, interstate
common carriers, including North American Van Lines, which operate between
the Commonwealth of Puerto Rico and various States of the United States. During
the same period, Valencia furnished truck transportation services valued in excess
of $50,000 to employers engaged in interstate commerce whose operations are sub-
ject to the jurisdiction of the Board.
Upon the foregoing facts, Respondent admits and I find that it is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
The Seafarers International Union, herein called the Seafarers or the SIU,2 and
Teamster Local 901,3 herein at times called the Teamsters, are labor organizations
within the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The issues
The gist of the complaint is that less than 9 months after the Seafarers had been
certified by the Board as the exclusive representative of Valencia's employees, the
Company failed and refused to deal with that union with respect to employee
grievances and, instead, discussed and adjusted grievances with the Teamsters.
Furthermore, according to the complaint, the Company withdrew all recognition
from the SIU at the end of the certification year and continued to recognize and
bargain with the Teamsters with respect to grievances.
The Company admitted in its answer that it did not recognize or bargain with the
SIU for a period prior to the date alleged in the complaint but asserted that it had
not engaged in any conduct which violated the Act because the employees had
abandoned the SIU and the SIU had abandoned the employees "long before" the ex-
piration of the certification year.
B. The certification of the Seafarers and the latter's efforts to obtain a contract
In the summer of 1960, the Board conducted an election among Valencia's em-
ployees, a representation petition having been filed by the Teamsters. The election
was won by the Seafarers and that union was certified by the Board on November 4,
1960, as the exclusive bargaining representative of the Company's employees in an
admittedly appropriate unit .4
An existing contract between Valencia and the Seafarers was due to expire on
November 30, 1960. In September, i.e., prior to the certification, the SIU gave the
Company timely notice that it wished to negotiate a new contract .5 Negotiations
Intervenor. It is unnecessary for the Trial Examiner 'to pass upon the specific objections
to the testimony of the witnesses Lozada and Correa since no findings have been based
on their testimony.
2 Seafarers International Union of North America, Atlantic, Gulf, Lakes and Inland
Waters District, Puerto Rico Division, AFL-CIO.
3 Teamsters, Chauffeurs, Warehousemen and Helpers, Local 901, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America.
4 The unit includes all drivers, helpers, and mechanics employed by Valencia in Puerto
Rico
5 Although it appears that Valencia has at times taken the position that the old contract
continued in effect until November 30, 1961, it did not take that position in the instant
proceeding.
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
toward a new contract began in the fall of 1960 and a number of meetings were held.
No agreement was reached, however, and the employees struck on or about
February 22, 1961.
A strike settlement agreement was entered into on or about March 17, 1961,
which provided, inter alia, for the reinstatement of the strikers, resumption of nego-
tiations for a period of 15 days, and, if no agreement was reached, the submission
of "the entire matter" to an arbitrator whose decision would be 'final and binding
on both parties." 6
Negotiations were resumed but no agreement was reached and the matter was
submitted to arbitration. The Company apparently opposed the arbitration pro-
ceedings and appears to have participated in them only to a limited extent. The
arbitrator issued his award on or about August 10. It included a complete contract
which by its terms was declared in effect from December 1, 1960, to December 1,
1962, i.e., both retroactively and prospectively.
Valencia refused to recognize the contract as valid and binding upon it and
extensive litigation followed in which the Seafarers sought to enforce the award.
The effect of the award was still being litigated at the time of the hearing in the
instant case.
C. Respondent's conduct beginning in the spring of 1961
As stated supra, the strike was settled on or about March 17. Shortly thereafter
a substantial majority of Valencia's employees notified the Company that they
were revoking the dues checkoff authorizations which they had signed in favor of
the Seafarers. By letter dated April 12, 1961, Valencia notified the SIU of the
employees' action and added that, as a result, it "would appreciate it if [the Union]
would let [the Company] know immediately if [the Union] still represents the
employees." 7
In a letter dated April 19, the Union pointed out that Valencia knew, better
than anyone, that the SIU was the exclusive representative of the employees.8
Valencia also knew that the SIU was actively seeking to obtain a contract. Thus,
the parties had just engaged in contract negotiations during the 15-day period pro-
vided for in the strike settlement agreement and the Union had just taken the steps
required to submit the dispute to arbitration.9
Valencia, however, took the position that the SIU's loss of majority meant that
it was no longer the representative of the employees. Thus, General Manager
Wallace Valencia testified in January 1962 that the Company had not bargained
with or recognized the SIU as the representative of its employees since April or
May 1961 because the Company was notified in late March 1961 that the employees
were revoking their dues checkoff authorizations In his words, "So since that
time, approximately 8 or 9 months, we have had no dealings with the SIU " Fur-
thermore, according to Manager Valencia, he deals in facts and "it is a fact of
life that the Teamsters have been handling the men's grievances since March
of 1961." Valencia was also asked the following questions and gave the following
answers:
Q. Are you saying, Mr. Valencia, that you have been dealing with the
Teamster representatives concerning grievances for the last six to eight months?
A. I am saying that the Teamsters have been coming to see us to settle
minor grievances in the Company, because the S.I.U. doesn't.
Q. And you have been dealing with the Teamsters on those grievances?
Is that right?
A. We have been settling minor grievances with them.
* * * * * * *
Q. And you have been in litigation with the S.I.U. almost continuously
since last March ... ?
6 The agreement also required that it be ratified by the employees within 36 hours and
the record indicates that it was ratified by the employees on March 18.
7 Events occurring prior to July 25, 1961, predated the filing of the charge by more than
6 months. In accordance with Section 10(b) of the Act, these events are relied upon only
as background to provide continuity and meaning for the actions of the parties after that
date. See Local Lodge No . 1424, International Association of Machinists v. N.L R B
(Bryan Manufacturing Co ), 362 U.S. 411, 416-417.
s The Union recognized that , In the absence of a contract , the checkoff authorizations
were no longer valid.
9 Although the date on which the dispute was submitted to arbitration is not clear, the
submission occurred sometime In April , probably between the 1st and the 15th.
VALENCIA BAST EXPRESS, INC. 215
A. But strangely so, while this litigation was going on, the S.I.U. representa-
tives didn't come to our premises. They never talked to management.
Q. But you have been talking to Teamster people about the grievances dur-
ing this period?
A. There was a vacuum, and that was filled in with the other union, which
in this case happens to be the Teamsters.10
Q. And from that you deduced that the S.I.U. no longer represents your
employees?
A. Also the former S.I.U. delegates are not [sic] Teamster delegates and
come to us as Teamster delegates; and from the fact that for the past eight
months none of the former S.I.U. delegates or S.I.U. organizers have been
at our premises talking to the men . . . . [Emphasis supplied.]
* * * * * * *
Q. One last question ... Mr. Valencia are you as of this date recognizing
the S.I.U. as the bargaining agent of your employees?
A. No, sir.
Q. You are saying for the record that you no longer recognize the S.I.U.
as your bargaining agent?
A. I am saying that for the record, yes, sir.
In another related proceeding, Company Vice President Rodolfo Catinchi testi-
fied that he was told repeatedly by employees that they did not want the SIU to
represent them, that they were going to take up their grievances through the Team-
sters, and that they would strike if he did not "settle matters" through the Teamsters.
Catinchi also described several meetings in August, September, and October, 1961,
with SIU representatives. According to Catinchi, at one such meeting one of the
SIU representatives suggested the formation of an independent union to which he
replied, "Why should you form an independent union when you know and I know
specifically that the men want the Teamsters?"
In view of the foregoing facts, I am convinced and find that beginning in April
1961 and continuing at least until January 1962, Respondent regarded the Sea-
farers' certification on November 4, 1960, as a nullity 11 and, instead, dealt with the
Teamsters with respect to employee grievances.12
D. Concluding findings
It is not seriously disputed and I find that after April 1961, few if any of
Valencia's employees wanted to be represented by the Seafarers. This fact, how-
ever, did not affect that Union's representative status in the legal sense since it had
been certified by the Board less than 6 months earlier. In short, as the Board has
repeatedly held, with judicial approval, in the absence of unusual circumstances
(none of which is present here), a Board certification "will be treated as identify-
10 According to Valencia, he testified in the manner set forth above because the men
with whom the Company had been dealing had identified themselves at a hearing in
December 1961 as Teamster representatives. Valencia said that prior thereto he had as-
sumed that the men were acting as individuals and not as the representatives of any
union I do not credit his testimony. When he was asked whether he had not, in still
another proceeding, identified certain employees as Teamster delegates in April 1961,
Valencia replied, "Frankly, we have had too many hearings, I don't remember." Further-
more, when Valencia was asked in the January proceedings whether the SIU had filed
charges against the Company prior to January 1962, he replied, "Not to my knowledge,
sir" although a charge in fact was filed in March 1961. In addition, when he was asked if
the SIU did anything "to claim representation after" the Company wrote the SIU can-
cerning the cancellation of dues checkoff authorizations, he answered, "No sir, they did
not " He then admitted that the SIU had replied to the Company's letter but stated that
he could not recall the contents of the Union's letter The letter, of course, is the one in
which the SIU pointed out that Valencia well knew that'SIU was the employee representa-
tive. Moreover, Valencia was well aware of the SIU's submission of the entire matter to
arbitration and its efforts to enforce the arbitration award
n In its answer to the complaint, Valencia admitted "that for a brief period subsequent
to November 1960, but not beyond February 1961, the S I U was the certified representa-
tive" of its employees. [Emphasis supplied ]
12 Many of the issues presented herein were considered and decided by the Board in
Teamsters , Chauffeurs , Warehousemen and Helpers, Local 901, IBTCT-V if H of America,
137 NLRB 808, which is now before the United States Court of Appeals for the First
Circuit, the Board having filed a petition for enforcement of its order.
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing the statutory bargaining representative with certainty and finality for a period
of 1 year." Rockwell Valves, Inc., 115 NLRB 236, 237, citing Ray Brooks v.
N.L.R.B., 348 U.S. 96. See also N.L.R.B. v. Holly-General Company, 305 F. 2d
670, 672, 675 (C.A. 9).
It follows, therefore, and I find that the SIU's loss of majority in April 1961
did not relieve Valencia of its duty to recognize and bargain with the SIU as the
exclusive representative of its employees.
Nor is there any greater merit in Respondent's contention that it was justified
in ignoring the SIU after April 1961 because the SIU "abandoned" the employees.
On the contrary, it is abundantly clear that throughout the entire period the SIU
was asserting and actively seeking to protect and effectuate its position as the ex-
clusive and certified representative of Valencia 's employees . From April to Au-
gust 10, 1961, it was pressing its claim before the arbitrator.13 Then when the
Company refused to abide by the arbitrator's award, which included a complete
contract, the Seafarers vigorously sought enforcement of the award.
Although I find, as claimed by Valencia, that there was little contact between
the SIU and the employees after April 1961, this is surely true in most cases in
which all or many of the employees desert the certified union. And it must be
even more usual when , as here, the employees have transferred their allegiance to
another union . In such situations, it is most unlikely that the employees would
continue to pay dues to the certified union or to attend its meetings. In the instant
case, the break was so complete that the Seafarers delegates or stewards became
Teamsters delegates or stewards and the employees were so hostile toward the SIU
that they "threatened" SIU representatives who went to the plant.14
Under these circumstances, I attach no significance to the fact that the SIU
had few contacts with the employees after April 1961.15
Similarly without significance is the absence of regular contacts between the
Union and the Company. The Union had no contract to administer,16 negotiations
between the parties had proved futile, and the Company was opposing the arbitra-
tion proceedings. Moreover, when Felipe de Jesus, the executive secretary of SIU,
attempted to discuss an employee grievance with Vice President Catinchi in March
or April 1961, Catinchi said he had nothing to say to De Jesus "because that belonged
to the Teamsters." 17
In addition, when Julio Medina, the SIU representative at Valencia's Ponce
plant arranged a meeting of the grievance committee at the Ponce plant in late
June 1961, no company representative appeared. When Medina wrote a letter of
protest, Vice President Catinchi, by letter dated June 30, assured Medina that the
Company understood and appreciated his "thankless position as representative of the
SIU in Ponce " Catinchi refused Medina's request for a meeting (which he had
predicated upon the grievance provisions of the old contract) on the ground that the
SIU officials in San Juan had taken the position that the old contract had expired.
Although Medinas reliance on the old contract may have been inconsistent with
13 The Seafarers filed a refusal-ito-bargain charge on March 28, 1961, which it later
withdrew In a civil action in the United States District Court for Puerto Rico in Janu-
ary 1962, the attorney for the Board told the court that the SIU withdrew the charge
when told by the Board's Regional Office that it would be dismissed because a complaint
was not justified at a time when the parties were trying to work out their dispute by
means of arbitration.
14 According to Vice President Catinchi, on several occasions SIU representatives came
to the plant but left when the employees "threatened to take them out" Ivan Coils, an
SIU employee until late in 1961, but a Teamsters adherent thereafter, testified that he
went to the plant in October, as directed by his superiors, although he was "a little seared"
to do so
is There is no basis for the Intervenor ' s attempt to attribute the Seafarers' loss of
majority to its "abandonment" of the employees The Company's April 12 letter indicates
that the revocations were effective March 28, 1961, a date less than 2 weeks after the SIU
had obtained reinstatement of the strikers and one falling within the period when the
SIU was pressing the Company for better contract terms, including pay increases
"The Company ceased making contributions to the welfare fund sometime in the
spring of 1961.
11 The above finding is based on the testimony of De Jesus which I credit I am aware
that De Jesus originally indicated that his request was predicated on the arbitrator's
award which did not come down until August. His testimony , however , is wholly con-
sistent with Respondent ' s position in other proceedings , that is, that the Teamsters became
the employees ' representative shortly after the strike.
VALENCIA BAXT EXPRESS, INC. 217
the SIU's position,18 Respondent's general attitude toward the SIU is revealed by
Catinchi's comment in his letter that Medina was "a person of intelligence and
should not be treated as a fool," presumably by his union superiors in San Juan.
The letter closed with the following paragraph:
Since you have been placed in this most embarrassing position, we are sure
you [will] agree that this letter should be placed on the bulletin board in the
Ponce office so that your decision as representative can be clarified.
In a reply, dated August 16, 1961, Keith Terpe, SIU president in Puerto Rico,
commented on the "unkind language" in Catinchi's letter to Medina and "cordially
invited" Catinchi to confer with him on August 18 with respect to the implementation
of the new contract, i.e., the one which was made a part of the arbitrator's award
of August 10. It does not appear that the Company replied to Terpe's letter.
Finally, as stated supra, Wallace Valencia testified in January 1962 that the
Company had neither bargained with nor recognized the SIU as the employees'
representative for 8 or 9 months and it has been found that during the same
period the Company dealt with the Teamsters concerning grievances.
In view of the foregoing facts, I am convinced and find that it would have been
futile for the SIU to have requested the Company to bargain with it on any
subject, including employee grievances, and that this is why the Union made little
effort to deal with Valencia after April 1961.
The facts set forth above indicate still another reason for the Union's failure to
request Valencia to bargain with it concerning grievances throughout the summer
and fall of 1961, and that is that the SIU did not know and had no way of knowing
when grievances arose The employees, having become hostile toward the SIU,
obviously did not notify it of their grievances and it is equally clear that Valencia
did not do so.19
Although it is frequently said that an employer is under no duty to bargain
absent a request, it is well established that unilateral action by an employer-
that is, without notice to or consultation with the statutory representative-violates
the Act. N.L.R.B. v. Benne Katz, etc., 369 U.S. 736; Han-Dee Spring & Mfg. Co.,
Inc., 132 NLRB 1542, 1544. It is equally well established that the Act makes it
the duty of the employer to bargain with the chosen representative exclusively and
"exacts `the negative duty to treat with no other.' " N.L.R.B. v. Medo Photo Supply
Corporation, 321 U S. 678 As the Court said in May Department Stores v. N.L.R.B.,
326 US. 376, 385, direct dealing with employees "interferes with the right of self-
organization by emphasizing to the employees that there is no necessity for a
collective-bargaining agent."
Although Section 9(a) of the Act gives individual employees or groups of em-
ployees the right to present and adjust their grievances directly with management,
the right of management to deal with them directly is conditioned upon "the bar-
gaining representative [having] been given opportunity to be present at such ad-
justment." 20 This condition was added to the section by Congress in 1947 only
after it was pointed out that absent such a requirement, employers would have
available a ready means of "undermining the status of the duly chosen bargaining
representative, by favoring antiunion or nonunion employees in the settlement of
grievances" and making it "clear to employees that their interests lie in deserting the
union." 21 It was also pointed out that:
11,Catinchi indicated in his letter that Respondent, like Medina, believed that the old
contract was still in effect.
19 That grievances were presented from time to time throughout the entire period is
clear from the testimony of Wallace Valencia set forth supra
20 Section 9(a) of the Act provides that:
Representatives designated or selected for the purposes of collective bargaining by
the majority of the employees in a unit appropriate for such purposes, shall be the
exclusive representatives of all the employees in such unit for the purposes of col-
lective bargaining in respect to rates of pay, wages, hours of employment, or other
conditions of employment : Provided, That any individual employee or a group of
employees shall have the right at any time to present grievances to their employer
and to have such grievances adjusted, without the intervention of the bargaining rep-
resentative, as long as the adjustment is not inconsistent with the terms of a
collective-bargaining contract or agreement then in effect: Provided further, That the
bargaining representative has been given opportunity to be present at such adjustment.
21 H. Rept. 245 on H It. 3020, 80th Cong, 1st sess. ; I Leg. Hist. of Labor-Management
Relations Act, 1947, p. 376.
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To grant individual employees or minority groups of employees the right to
be present and settle grievances which relate to wages, hours and conditions
of employment without permitting the representative of the majority of the
employees to participate in the conference and join in any adjustment is to,
undermine the very foundations of the Act . To create rivalry, dissension,
suspicion, and friction among employees , to permit employers to play off one-
group of employees against another, to confuse the employees would com-
pletely undermine the collective -bargaining representative and would be,
disastrous.22
In short, the whole purpose of the proviso is to bar "under -the-table" deals between
management and individual employees acting directly or through another union.
It was for this reason that Congress did not make a request by the Union for an
opportunity to be present a condition precedent to its right to be present at the
adjustment of grievances . In other words, Congress chose not to make the Union
the moving party but vested in it the unqualified right to the opportunity to be present
at the adjustment of individual grievances . And it certainly cannot be said to have
had that right if it does not know and has no way of knowing that a grievance has
been filed and is about to be adjusted 23 It is therefore clear that Valencia's bargain-
ing with its employees concerning grievances , either directly or through the Teamsters,
did not conform with the requirements of Section 9(a). Cf. Bethlehem Steel Com-
pany, 89 NLRB 341 , 347-348.
In view of the foregoing facts and on the basis of the entire record , I conclude and
find that neither the Seafarers ' loss of majority in the spring of 1961 nor the absence
thereafter of regular contacts between the Union and the employees or between the
Union and the Company justified Respondent 's adjustment of employee grievances
after July 25, 1961 , without the SIU having been given the opportunity to be present,
or its withdrawal of all recognition from the SIU after November 6, 1961, or its
negotiations during the same period with the Teamsters concerning employee
grievances. It follows , therefore , and I find , that by engaging in such conduct Re-
spondent refused to bargain with the certified representative of its employees in
violation of Section 8(a)(5) and ( 1) of the Act. Ray Brooks v. N.L.R.B., 348 U.S.
96, 103-104; Hughes Tool Company v. N.L.R.B., 147 F. 2d 69, 72-74 (C A 5),
enfg. as modified 56 NLRB 981 , 983; Bethlehem Steel Company, 89 NLRB 341, 347-
348; Federal Telephone and Radio Company, 107 NLRB 649, 653. I further find that
Respondent unlawfully assisted and supported the Teamsters in violation of Section
8(a)(2) and ( 1) of the Act by dealing with that union after July 25, 1961, with
respect to employee grievances without the SIU having been given an opportunity to,
be present . Cf. Hughes Tool Company, 56 NLRB 981, 985 , enfd. as modified 147 F.
2d 69 , 72-74 (C.A. 5).
IV. THE REMEDY
Having found that Respondent engaged in certain unfair labor practices, it will
be recommended that Respondent cease and desist therefrom and that it take certain
action of the type conventionally ordered in such cases, as provided in the Recom-
mended Order below, which is found to be necessary to remedy and remove the effects
of the unfair labor practices and to effectuate the policies of the Act. As the evidence
does not indicate such an attitude of opposition to the purposes of the Act generally
that a commission of other types of unfair labor practices is reasonably to be
anticipated, the order provides that Respondent cease and desist from engaging in
further conduct of the types herein found and from any like or related conduct.
Cf. The Multi-Color Company, 122 NLRB 429, 466; Mt Clemens Metal Products
Company, 126 NLRB 1297, 1310.
CONCLUSION OF LAW
1. Seafarers International Union of North America , Atlantic, Gulf, Lakes and
Inland Waters District , Puerto Rico Division , AFL-CIO, has been at all times since
42 93 Cong Rec 3702, 80th Cong, 1st sess, April 17, 1947; I Leg Fist of Labor-
Management Relations Act, 1947, pp. 780-781.
1s Whether the Union has been given the required opportunity depends, of course, upon
the facts of each case. For example, if the Union knows of the grievance and remains
silent, It could well be held to have waived its right to be present Cf Montgomery
Ward cE Co., Incorporated, 137 NLRB 418, in which the Board held that the employer
did not violate Section 8(a) (5) of the Act by establishing two new terminals without
bargaining with the Union wince the latter knew of the Company's proposed action and;
made no bargaining request.
VALENCIA BAXT EXPRESS, INC. 219
November 4, 1960, the certified and exclusive bargaining representative of Respond-
•ent's employees.
2. By adjusting employee grievances after July 25, 1961, without the Seafarers hav-
ing been given an opportunity to be present, by withdrawing all recognition from
the Seafarers after November 6, 1961, and during the same period negotiating with
the Teamsters concerning employee grievances, Respondent engaged in and is
engaging in unfair labor practices proscribed by Section 8(a) (5), (2) and (1) of the
Act.
3. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact and conclusions of law and the entire record,
and pursuant to Section 10(c) of the Act, I hereby issue the following:
RECOMMENDED ORDER
Valencia Baxt Express, Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Adjusting employee grievances without Seafarers International Union of
North America, Atlantic, Gulf, Lakes and Inland Waters District, Puerto Rico
Division, AFL-CIO, having been given an opportunity to be present at the adjustment
thereof and from withdrawing all recognition from the Seafarers.
(b) Negotiating with Teamsters, Chauffeurs, Warehousemen and Helpers, Local
'901, IBTCW & H of America, concerning employee grievances without the Seafarers
having been given an opportunity to be present at the adjustment thereof.
(c) In any like or related manner interfering with, restraining, or coercing em-
ployees in the exercise of the right to self-organization, to form labor organizations,
to join or assist the above-named or any other labor organizations, to bargain col-
lectively through representatives of their own choosing, and to engage in any other
concerted activities for the purposes of collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities.
2. Take the following affirmative action:
(a) Bargain collectively, upon request, with the Seafarers International Union,
Puerto Rico Division, as the exclusive representative of its employees and if an
understanding is reached, embody such understanding in a signed agreement.
(b) Withdraw and withhold all recognition from Teamsters Local 901 as the rep-
resentative of its employees for the purpose of negotiating with respect to employee
grievances unless and until said labor organization has been duly certified by the
National Labor Relations Board as the exclusive representative of its employees.
(c) Post at its various places of business in Puerto Rico copies of the attached
notice (in both English and Spanish) marked "Appendix." 24 Copies of said notice
(in English and Spanish), to be furnished by the Regional Director for the Twenty-
fourth Region, shall, after being duly signed by Respondent's representative, be
posted immediately upon receipt thereof and maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be taken to insure that said
notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Twenty-fourth Region, in writing, within
20 days from the receipt of this Intermediate Report and Recommended Order, what
steps it has taken to comply therewith 25
24 In the event that this Recommended Order be adopted by the Board, the words "A
Decision and Order" shall be substituted for the words "A Recommended Order of a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "A Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision
and Order"
u In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify you that:
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL bargain collectively on request with Seafarers International Union
of North America, Atlantic, Gulf, Lakes and Inland Waters District, Puerto
Rico Division, AFL-CIO, as the exclusive representative of all our employees,
and, if an understanding is reached , we will embody such understanding in a
signed agreement.
WE WILL NOT negotiate with Teamsters , Chauffeurs , Warehousemen and
Helpers, Local 901 , IBTCW & H of America, or any other labor organization,
concerning employee grievances without the Seafarers having been given an
opportunity to be present at the adjustment thereof unless or until Teamsters
Local 901 shall have been certified by the National Labor Relations Board.
WE WILL NOT in any like or related manner interfere with , restrain, or co-
erce our employees in the exercise of the right to self-organization , to form
labor organizations , to join or assist Seafarers International Union, Puerto Rico
Division, or any other labor organization , to bargain collectively through repre-
sentatives of their own choosing , and to engage in other concerted activity for
the purposes of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities.
WE WILL withdraw and withhold recognition from Teamsters Local 901 as
the representative of our employees for the purpose of dealing with us concern-
ing employee grievances, unless and until said labor organization shall have been
certified by the National Labor Relations Board.
All our employees are free to become or remain , or to refrain from becoming or
remaining, members of the above-named or any other labor organization.
VALENCIA BAXT EXPRESS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 1506
Ponce de Leon, Santurce, Puerto Rico, 00910 , Telephone No. 723-3200, if they have
any question concerning this notice or compliance with its provisions.
V. C. Britton Co. and Agricultural Workers Organizing Com-
mittee, AFL-CIO. Case No. 20-CA-2417. June 27, 1963
DECISION AND ORDER
On April 25, 1963, Trial Examiner William E. Spencer issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermedi-
ate Report. Thereafter, the Respondent filed exceptions to the In-
termediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Leedom,. Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and brief, and the entire record in this
143 NLRB No. 44.