Sunland Biscuit Company, Incorporated And Union de Trabajadores de la Industria de Galletas (cgt), 714 (1948)

In the Matter of SUNLAND BISCUIT COMPANY, INCORPORATED and UNION DE TRABAJADORES DE LA INDUSTRIA DE GALLETAS (CGT) Case No. 24-C-119.-Decided July 30, 1948 Mr. Stanley D. Kane, for the Board.

Mr. Francisco Colon Gordiany, of San Juan, P. R., for the Union.

Mr. L. E. Dubon, of San Juan, P. R., for the Respondent.

DECISION AND ORDER On October 24, 1946, Trial Examiner T. B. Smoot 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 copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other alleged unfair labor practices and recommended that the complaint be dismissed with respect to such allegations. Thereafter, counsel for the Respondent filed exceptions to the Intermediate Report and a supporting brief.

The Respondent's request for oral argument was denied for the reasons set forth in the Board's notice of October 1, 1947, which was sent to all the parties.

The Board has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the Respondent's exceptions and brief, and the entire record in the case and hereby adopts only those findings, conclusions, and recommendations of the Trial Examiner that are consistent with this decision.2 1The power of the Board to issue a Decision and Order in a case such as the instant one, where the charging union has not complied with the filing requirements specified in Section 9 (f), (g), and (h) of the National Labor Relations Act, as amended, was decided by the Board in Matter of Marshall and Bruce Company, 2 The provisions of Section 8 (1) and (3) of the National Labor Relations Act, which the Trial Examiner found were violated herein, are continued in Section 8 (a) (1) and 8 (a) (3) of the Act, as amended by the Labor Management Relations Act, 1947.

714 715 1. Interference, restraint, and coercion We agree with the Trial Examiner's conclusion that the Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, within the meaning of Section 8 (1) of the Act. Our agreement, however, is based only upon the following statements and conduct, which are fully set forth in the Intermediate Report:

At the first meeting with the Union's officers, Plant Manager Olivari's remarks contained a clear threat of economic reprisal if the employees persisted in their organizational activities. On subsequent occasions, Olivari threatened employees Lugo and Jolguera with loss of employment because of their union membership and activity. Foreman Nigaglioni interrogated employee Millan as to whether she was a member of the Union.4 As to the other findings relied upon by the Trial Examiner in support of his ultimate conclusion, we find that they do not constitute unfair labor practices because either they are inadequately supported by the record or they involve expressions of opinion protected by the right of free speech.

2. The discriminatory decrease in working hours The Trial Examiner found, and we agree, that after the election of August 24, 1945, the Respondent discriminatorily decreased the hours of employment of Mariana Cruz, Elsa Sanchez, Carmen Adorno,

Juanita Hernandez, and Aquilino Vasquez, in violation of Section 8 (3) of the Act. We are satisfied and find that the analysis of the Respondent's pay rolls, as set forth in the Intermediate Report, establishes the lack of merit in the Respondent's contention that, both before and after the election, available work was distributed in the same manner.5 3Although we do not agree entirely with the Trial Examiner's resolution of the testimony concerning such incident, we are of the opinion that there is substantial evidence in support of the above finding. Thus, the Trial Examiner referred to a conflict in the testimony of five witnesses for the Respondent as against their own affidavits, but the record contains affidavits of only three of these witnesses; and only with respect to one of the witnesses (Serrano), do we find a sufficient conflict in testimony to warrant discrediting his testimony with respect to the incident.

SThe Board has consistently held that such interrogation is per se violative of the Act.

See H. J. Heinz Co. v. N. L. R. B., 311 U. S. 514, aff'g 110 F. (2d) 843 (C. C. A. 6), enf'g 10 N. L. R. B. 963; N. L. R. B. v. Norfolk Southern Bus Corporation, 159 F. (2d) 516 (C. C. A.

4) enf'g 6 Board Member Reynolds does not concur in the above finding of discrimination because he believes, for the following reasons, that the evidence falls short of establishing that the complainants actually received less than their proportionate share of available work. The pay rolls relied upon by the Trial Examiner merely list separately the number of hours worked by all male and female employees without regard to their job classifications. These pay rolls therefore contain insufficient facts to permit a comparative statistical determina DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The suspension and discharge of Cruz; and the discharge of Adorno,

Sanchez, Hernandez, Vasquez, and Troche The Trial Examiner found that the Respondent violated Section 8 (3) of the Act, by suspending Mariana Cruz on August 8, 1945, for 2 weeks; by discharging Mariana Cruz, Carmen Adorno, Elsa Sanchez, and Juanita Hernandez on October 6, 1945; and by discharging Aquilino Vasquez and Eugenio Troche on October 9, 1945. We do not agree.

In justification of its action against the complainants, the Respondent contends in effect that, on company time and property and in the vicinity of the plant, the complainants abused their fellow employees who in turn complained to management about such abuse. The Trial Examiner does not dispose of the Respondent's defense to our satisfaction.

As to Cruz' suspension, the Trial Examiner concedes that some girls complained to Forelady Mattei about Cruz' conduct, but concludes that her suspension was not a legitimate disciplinary measure, principally on the ground that it was designed 'to defeat the Union in the election.' It appears, however, that Cruz was suspended before the Union filed its petition on August 21, 1945, and that she was reinstated in time to participate in the election held on August 24.

Careful consideration of this entire record convinces us that during the period immediately preceding her suspension, Cruz' conduct on company time and property presented the Respondent with a real disciplinary problem. The Trial Examiner's discussion does not adequately portray this condition. For example, he fails to set forth or make a specific finding concerning the credible testimony of Lydia Vasquez and Celenia Medina, whose complaints against Cruz were apparently involved in her suspension on August 8. These two employees testified that during working hours on August 7, 1945, the day before Cruz' suspension, Cruz called them 'apple polishers,' 'yellow,' 'pimps,' and 'stool pigeons.' Vasquez further testified that Cruz had similarly insulted her before that date and that she had complained to Forelady Mattei and threated to quit her job because of such insults. Foreman Nigaglioni testified that he had also heard Cruz and three other girls who were union members, use insulting language and saw Cruz throwing cans of crackers, and that he reported the incident to Olivari, telling him that Cruz was the most aggressive.

Olivari testified that on the following day, when Cruz was sent to his tion as to the lack of normality in the distribution of available work for the various job classifications involved. Moreover, according to these records, Eugenio Troche, one of the Union's leaders, worked about the same number of hours both before and after the election, and another union member, Maldonada, received more work after the election, notwithstanding contrary testimony by Sanchez, Cruz, and Hernandez.

office, he reminded her of a prior reprimand and told her, in effect, that she was being suspended for 2 weeks as punishment for improper conduct.

In view of the Trial Examiner's failure to find explicitly whether or not Cruz was guilty of actual misconduct, we are inclined to give controlling significance to the foregoing evidence, which in many respects is mutually corroborative 6 and tends to establish misconduct on the part of Cruz.

The record further shows that after the Union had lost the election, the Respondent's disciplinary problem became more acute and culminated in the discharge of Cruz and the other complainants. As set forth in the Intermediate Report, the Respondent on two occasions received petitions signed by a substantial number of employees, who protested the verbal abuse and threats from the 6 complainants. That the charges leveled against the complainants appeared to the Respondent to be serious is attested by the fact that the signatories to the petitions threatened to quit because of such abuse and by the further fact that the Respondent furnished certain employees, upon request, with transportation to avoid the complainants' abusive and threatening conduct.

Moreover, 14 witnesses for the Respondent testified that threats and abusive language by the complainants were either directed at them, overheard, or reported to them.7 The Trial Examiner, without report6 The Trial Examiner discounts Nigaglioni's testimony principally because of a finding that he testified that 'he never at any time heard anyone in the plant mention the Union'indeed, an incredible statement. But the record shows that he did not so testify. His testimony on that point was that he had never used the word 'union' in the plant.

7 Ramona Ramos...