G.H. Bass Caribbean, Inc.

National Labor Relations Board - Board Decisions

Mar 25, 1992

306 N.L.R.B. 823 (N.L.R.B. 1992)

823
306 NLRB No. 159
G.H. BASS CARIBBEAN, INC.
1 Member Raudabaugh is recused from participating in this case.
2 The Union has excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administra-
tive law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d
362 (3d Cir. 1951). We have carefully examined the record and find
no basis for reversing the findings.
Chairman Stephens and Member Oviatt, for institutional reasons,
join Member Devaney in adopting the judge’s findings that the Re-
spondent violated Sec. 8(a)(5) and (1) of the Act, in recognition that
current Board precedent (see W. A. Krueger Co., 299 NLRB 914
(1990)), is dispositive in the absence of a majority vote to overrule
that precedent.
3 We modify the judge’s recommended Order to provide that the
notice be posted in both English and Spanish.
On February 12, 1992, the Board granted the Respondent’s motion
to sever Case 24–RD–359 and issued a Decision, Order, and Certifi-
cation of Results of Election. In light of that decision, we grant the
General Counsel’s request that the Union’s name be deleted from the
Order. Thus, we shall modify the judge’s recommended Order to
provide that the Respondent refrain from making any unilateral
changes prior to the final resolution of any question concerning the
representative status of any incumbent union.
4 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
G.H. Bass Caribbean, Inc. and Congreso de
Uniones Industriales de Puerto Rico. Cases 24–
CA–6064 and 24–CA–6166
March 25, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On May 6, 1991, Administrative Law Judge Peter E.
Donnelly issued the attached decision. The Respondent
filed exceptions and a supporting brief; the General
Counsel filed limited exceptions, a supporting brief,
and a brief in support of the judge’s decision; and the
Union filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.1
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order which,
as modified, is set forth in full below.3
ORDER
The Respondent, G.H. Bass Caribbean, Inc., Manati,
Puerto Rico, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Unilaterally granting unit employees a wage in-
crease and implementing dental benefits prior to the
resolution of a question concerning the continuing rep-
resentation of an incumbent union. The appropriate
unit is:
All production employees employed by Respond-
ent at its plant located in Manati, Puerto Rico, ex-
cluding all other employees, including office cler-
ical employees, professional, executive, mainte-
nance employees, shipping and receiving ware-
house employees, guards, janitors, assistant super-
visors and supervisors as defined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights under the National Labor Relations Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its Manati, Puerto Rico facility copies of
the attached notice, in Spanish and English, marked
‘‘Appendix.’’4 Copies of the notice, on forms provided
by the Regional Director for Region 24, after being
signed by the Respondent’s authorized representative,
shall be posted by the Respondent immediately upon
receipt and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken to ensure that the notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director in writing within
20 days from the date of this Order what steps have
been taken to comply.
APPENDIX
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 or-
dered us to post and abide by this notice.
WE WILL NOT unilaterally grant unit employees a
wage increase and implement dental benefits prior to
the final resolution of a question concerning the con-
tinuing representation of any incumbent union. The ap-
propriate unit is:
All production employees employed by the Em-
ployer Respondent at its plant in Manati, Puerto
Rico excluding all other employees, including of-
fice clerical employees, professional, executive,
and maintenance employees, shipping and receiv-
ing, warehouse employees, guards, janitors, assist-
ant supervisors and supervisors as defined in the
Act.
824 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The objections were initially dismissed by the Regional Director
as untimely, but later reinstated based on a claim by the Union that
an agent of the Regional Office had misinformed the Union con-
cerning the filing date for objections. The Regional Director ordered
a hearing on Objections 1 and 5. The Regional Director’s decision
and order was appealed to the Board by the Employer. The Board
upheld the Regional Director in a 2 to 1 decision. A motion for re-
consideration of the Board’s decision was denied by Board Order
dated September 19, 1990.
2 No opposition thereto having been filed, General Counsel’s in-
formative motion dated October 24, 1990, is hereby granted. Also,
no opposition thereto having been filed, General Counsel’s motion
to correct brief dated August 2, 1990, is also granted.
3 There is conflicting testimony regarding some allegations of the
Complaint. In resolving these conflicts, I have taken into consider-
ation the apparent interests of the witnesses. In addition, I have con-
sidered the inherent probabilities; the probabilities in light of other
events; corroboration or lack of it; and consistencies or inconsist-
encies within the testimony of each witness and between the testi-
mony of each and that of other witnesses with similar apparent inter-
ests. In evaluating the testimony of witnesses, I rely specifically on
their demeanor and have made my findings accordingly. While apart
from consideration of demeanor, I have taken into account the
above-noted credibility considerations, my failure to detail each of
these is not to be deemed a failure on my part to have fully consid-
ered it. Bishop & Malco, Inc., 159 NLRB 1159, 1161 (1966).
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
G.H. BASS CARIBBEAN, INC.
Virginia Milan, Esq., for the General Counsel.
Vincente J. Antonetti, Esq., of Santurce, Puerto Rico, and Mi-
chael J. Shershin, Esq., of Atlanta, Georgia, for the Re-
spondent.
Nicolas Delgado Esq., of Puerto Nuevo, Puerto Rico, for the
Union.
Juan Vicens, of Manati, Puerto Rico, for the Petitioner.
DECISION
STATEMENT OF THE CASE
PETER E. DONNELLY, Administrative Law Judge. On Sep-
tember 8, 1989, the Congreso de Uniones Industriales de
Puerto Rico (Union or Charging Party) filed objections to a
decertification election (24–RD–359) which had been held on
August 31, 1989. A report on a report and recommendation
on objections was issued on January 26, 1990, overruling all
but Objections 1 and 5.1
The charge in 24–CA–6064 was filed on December 19,
1989, and later amended on February 2, 1990. Complaint
thereon issued on February 2, 1990, alleging that G.H. Bass
Caribbean, Inc. (Employer or Respondent) failed to bargain
in good faith by unilaterally granting wage increases and by
adding dental benefits to the employees’ health plan. The
complaint in Case 24–CA–6064 and the objections in Case
24–RD–359 were consolidated for hearing by order dated
February 8, 1990.
The charge in 24–CA–6166 was filed by the Union on
May 21, 1990, and amended on June 6, 1990. The complaint
in Case 24–CA–6064 was amended at the hearing essentially
to add the allegations of the amended charge in Case 24–
CA–6166, i.e., the prehearing interrogation of employees in
an unlawful manner. Answers were timely filed by Respond-
ent. A hearing was held before the administrative law judge
on June 11, 12 and 13, 1990. Briefs have been timely filed
by General Counsel, Respondent, and the Union, which have
been duly considered.2
FINDINGS OF FACT3
I. EMPLOYER’S BUSINESS
Employer is a Delaware corporation authorized to do busi-
ness in Puerto Rico, where it is engaged in the manufacture
of shoes, operating a facility located in Manati, Puerto Rico.
Respondent annually purchases and receives goods and mate-
rials valued in excess of $50,000 directly from suppliers lo-
cated outside Puerto Rico. The complaint alleges, the Re-
spondent admits, and I find that the Respondent is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
Employer takes the position that the Union is not entitled
to the status of labor organization under the Act since it has
failed to file certain financial disclosure forms required by
the Department of Labor and because the Union was charged
by then-Secretary of Labor Elizabeth Dole in a complaint
filed in Federal District Court in Puerto Rico alleging mis-
conduct by certain officers of the Union in the administration
of the Union’s employee welfare benefits plan under the Em-
ployee Retirement Income Security Act of 1974 (ERISA).
Nonetheless, the record makes it abundantly clear that the
Union meets the Board’s statutory criteria for a labor organi-
zation status set out in Section 2(5); that criteria being:
The term ‘‘labor organization’’ means any organization
of any kind or any agency or employee representation
committee or plan, in which employees participate and
which exists for the purpose, in whole or in part, of
dealing with employers concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or
conditions of work.
The fact that the Union may be remiss in filing reports re-
quired by the Department of Labor, or is the subject of alle-
gations now pending in Federal district court, do not dis-
qualify it as a labor organization when the Act’s criteria are
met. Comet Rice Mills, 195 NLRB 671 (1972). Accordingly,
I find that the Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
825G.H. BASS CARIBBEAN, INC.
4 All dates refer to 1989 unless otherwise indicated.
5 Mike O’Connor Chevrolet, 209 NLRB 701 (1974), enf. denied on
other grounds 512 F.2d 684 (8th Cir. 1975).
III. THE ALLEGED UNFAIR LABOR PRACTICES
Facts
A. Background
The Union has represented the employees of the Respond-
ent under a series of collective-bargaining agreements since
April 9, 1976. The most recent collective-bargaining agree-
ment between the parties became effective November 1,
1985, and expired on October 31, 1988.
A petition for decertification of the Union as the collec-
tive-bargaining representative of the unit employees was filed
on August 15, 1988. An election was conducted on Novem-
ber 17, 1988. That election was lost by the Union by a vote
of 267 to 169. Objections to that election were filed by the
Union. Prior to any hearing on objections, agreement was
reached on setting aside the first election and conducting a
second election. A second decertification election was held
on August 31, 1989.4 This election was lost by the Union
by a vote of 292 to 154. Objections to the August 31 elec-
tion were filed on September 8. After an investigation, the
Regional Director issued a report on objections, concluding
that six of the eight objections which had been filed should
be overruled, and that the remaining two objections, 1 and
5, should be consolidated for hearing with the pending unfair
labor practice allegations.
B. Unilateral Grant of Wage Increases and
Dental Benefits
With respect to these unfair labor practice allegations, Luis
Benitez, vice president and general manager of Respondent,
testified that after the first election on November 17, 1988,
the parties met and negotiated at various times but that the
Union had made no bargaining request of the Respondent
since July 1989. Thereafter, Respondent, on December 7, an-
nounced, without notice to or consultation with the Union, a
unilateral across-the-board increase of 20 cents per hour ret-
roactive to November 1 and the implementation of a dental
plan to be added to the employees’ health care plan to be-
come effective January 1, 1990. It is undisputed that these
benefits were conferred unilaterally at a time when objections
to the election of August 31, 1989, were still pending and
unresolved and after the most recent collective-bargaining
agreement had expired.
In justification for granting these benefits, Benitez testified
that Respondent entertained a good-faith doubt of the
Union’s majority status. Apparently, the basis for these
doubts derived from what Respondent viewed as employee
dissatisfaction with the Union over the Union’s health insur-
ance program. Benitez testified that the union plan was not
being accepted by health care facilities because of the plan’s
financial problems. Benitez testified that some 300 unit em-
ployees signed a petition seeking to change health care cov-
erage to the Respondent’s plan, but that Benitez had to ad-
vise them that the collective-bargaining relationship did not
allow for such a change.
Respondent takes the position that it had a good-faith
doubt based on objective considerations that the Union no
longer represented a majority of its unit employees when it
unilaterally implemented a wage increase and a dental plan
on November 7. I do not agree. While it appears that em-
ployee dissatisfaction with the union health plan was sub-
stantial, I cannot conclude that such dissatisfaction was tanta-
mount to a rejection of union representation so as to provide
sufficient basis for a good-faith doubt of the Union’s major-
ity status. As Respondent correctly points out, the filing of
a decertification petition alone is not sufficient to support a
good-faith doubt, but Respondent argues that in the instant
case, where the filing of the decertification petition is aug-
mented by additional considerations of employee dissatisfac-
tion, and two decertification elections lost by decisive and in-
creasing margins, the Board’s good-faith doubt criteria has
been met. This is a minority view apparently shared by
Member Oviatt whose dissent in W. A. Krueger Co., 299
NLRB 914 (1990), includes the following language:
For the following reasons, I would not follow Pres-
byterian Hospital [241 NLRB 996 (1979)]. I would per-
mit an employer to rely on, and its employees to enjoy,
the results of a Board-conducted decertification election
that the Union has lost and to which it has objected.
In my opinion, the election tally is an objective basis
for withdrawing recognition from the Union.
However, the Board majority view remains that an em-
ployer cannot cite the election tally as dispositive of its post-
election bargaining obligation, where the election results are
being contested and the results pending and inconclusive.
Thus, in Krueger, supra at fn. 11, the Board panel majority
held:
Contrary to our dissenting colleague’s view that an
election tally is dispositive of the employer’s post-
election obligation to bargain, an ostensible union vic-
tory in an initial certification election does not activate
an employer’s duty to bargain with a union. An 8(a)(5)
violation resulting from an employer’s postelection uni-
lateral changes, once the union is certified, is actually
an exception to the rule that election results are final
on certification, an exception used solely to safeguard
a union’s future bargaining position.
In my opinion, the considerations recited by the Respond-
ent in the instant case, individually, or even in their totality,
are insufficient under current Board law, to support the con-
clusion, based on objective considerations, that Respondent
had a good-faith doubt that a majority of its employees no
longer wanted union representation.
Respondent also argues that the Board’s findings in Mike
O’Connor5 should be extended to apply to decertification
proceedings. In Mike O’Connor, the Board enunciated the
rule that an employer who makes unilateral changes in terms
and conditions of employment after a representation election
and while objections are pending, does so at its peril and that
if the Union is certified, the employer will have violated the
Act and if a certification of results issues, the unilateral
changes will be viewed as lawful.
The issue in the instant case is whether to apply the same
rule to decertification proceedings. In the instant case, this
would mean that if the objections to the election were sus-
826 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 W. A. Krueger Co., supra. See also Presbyterian Hospital, supra.
7 Dow Chemical Co., 250 NLRB 756 (1980), enf. denied 660 F.2d
687 (5th Cir. 1981). 8 Johnnie’s Poultry Co., 146 NLRB 770 (1964).
tained, the Employer will have violated Section 8(a)(5) of the
Act by unilaterally implementing the wage increases and
dental benefits, but if the objections are overruled, there will
have been no 8(a)(5) violation.
However, the issue raised by the instant case has been re-
solved at least at the Board level. The Board has decided not
to extend the Mike O’Connor rule to decertification pro-
ceedings.6 In doing so, the Board concedes its differences
with the Fifth Circuit7 and with its colleague’s dissenting
opinion in Krueger. A Board majority makes its position
clear when it states, in Krueger:
For the reasons stated below, we decline to extend
the Mike O’Connor ‘‘at risk’’ rule to decertification sit-
uations. Accordingly, we adhere to Presbyterian Hos-
pital and find that in the decertification context the
change in the basic relationship between the parties and
in the parties’ obligations to bargain should not be ef-
fective until the date the certification issues. This view
is consistent with the status quo approach of Mike
O’Connor. Thus, any unilateral changes made before
the issuance of the certification of results violate Sec-
tion 8(a)(5) and (1) of the Act.
The Board continues with an exposition and analysis of
past and present Board law, including the basic observation
that the presumption of majority status enjoyed by an incum-
bent collective-bargaining representative adheres until elec-
tion results are final.
Accordingly, in the instant case, since the unilateral
changes herein were made after the contract had expired, and
while objections to the decertification election were still
pending, and while the Union continued to enjoy majority
status, those unilateral changes violate Section 8(a)(5) of the
Act.
C. Unlawful Prehearing Interrogation
It appears that after the Regional Director issued the report
on objections recommending hearing on two of the eight ob-
jections, Respondent’s attorney conducted an investigation
into the facts concerning those two objections in preparation
for hearing thereon. General Counsel contends that Respond-
ent’s attorney, in conducting interviews with employees, en-
gaged in unlawful interrogation concerning matters related to
a Board proceeding, i.e., the objections case.
The General Counsel presented three employees. Teresa
Santos testified that she was a union delegate and negotiator
who had participated in negotiations with the Respondent’s
attorneys in recent contract negotiations. Santos testified that
at her interview, Respondent’s attorney said nothing about
investigating the objections case, never told her that her par-
ticipation was voluntary and never gave her any assurances
against reprisals. Luiz Perez also testified that he was a
member of the union negotiating committee who knew Re-
spondent’s attorney from prior negotiations. Perez testified
that he was never told that his participation was voluntary or
that no reprisals would take place. Rozario Maysonet was an-
other union delegate and negotiator who had acted as the
union observer at the election on August 31. Maysonet testi-
fied that when he went into the interview, Respondent’s at-
torney identified himself and that Maysonet already knew
him from prior contract negotiations. Maysonet testified that
he was not told that the interview was voluntary or that he
could leave and that he was told that he was obliged to an-
swer the questions. However, in a prior affidavit, Maysonet
had stated, ‘‘Before Attorney Antonetti asked me the ques-
tions, he informed me that I could leave, but that he was
going to ask me two or three questions and I told him that
I had no problems.’’
Antonetti testified that he has been an attorney since 1960
engaged exclusively in the areas of labor and employment
law; that he is familiar with the criteria established by the
Board in Johnnie’s Poultry8 for the interrogation of employ-
ees in preparation for litigation; and that he was careful to
observe those criteria during each of the 31 employee inter-
views he conducted during May and June 1990. Specifically,
Antonetti testified that as each employee came into the con-
ference room, that employee was introduced to him by a
company official whereupon Antonetti would tell the em-
ployee that he was there to interview him or her in connec-
tion with litigation concerning the objections; that he was
representing management; that he would like their voluntary
participation, adding that participation in the interrogation
was completely voluntary and that there would be rewards
and no reprisals for not participating. All agreed to be inter-
viewed. Antonetti then told them that he was interested only
in learning the facts about two incidents, the first concerning
the distribution of antiunion literature by two employees, and
the second, the promise of a day off with pay and a party
if the Union lost the election. All responded to both ques-
tions except Perez who, after answering the first question,
objected to the presence of a pilot light on a television set
in the conference room and, despite Antonetti’s assurances
that the conversation was not being taped, answered that he
did not want to continue. Antonetti told him that he could
leave and asked him to acknowledge that before the inter-
view started he had been advised that there would be no re-
prisals and Perez, said that he understood. Antonetti testified
that he had selected Santos, Perez, and Maysonet to be
among those interviewed because they had participated in
prior negotiations for the Union.
In addition to Antonetti, Respondent called employees
Victor Marrero and Naftali Kuilan, both of whom testified
that they were advised prior to their interviews that their par-
ticipation in the interview process was voluntary and that
there would be no reprisals. In addition, the parties entered
into a stipulation reciting, in essence, that seven additional
witnesses were available who, if called to testify, would tes-
tify that they were told that the only purpose of the interview
was to ascertain the true facts concerning allegations of dis-
tribution of literature and the matter of being promised a day
off with pay and a party; that there would be no rewards or
reprisals for participation in the interviews; and that their
participation was completely voluntary. Having reviewed all
of the relevant testimony, I am persuaded that Antonetti did
observe the criteria set out in Johnnie’s Poultry regarding the
interrogation of employees pursuant to litigation. This finding
is based on credibility considerations which I have resolved
827G.H. BASS CARIBBEAN, INC.
9 Having concluded, based on the credibility resolutions, that Re-
spondent did not violate Sec. 8(a)(1) of the Act in the interrogation
of employees, I find it unnecessary to pass on Respondent’s alternate
position that even if the interrogations had been unlawful, the John-
nie’s Poultry criteria does not apply to an attorney preparing for a
hearing.
10 Perez attributes his failure to mention in the affidavit his testi-
mony that Benitez promised a day off with pay by saying that that
was what he remembered at the time.
11 It appears that a spontaneous celebration occurred on September
1 among the supporters of the Employer and that Benitez did come
out about 9:15 a.m. to tell the employees that in celebration they
could have the rest of the day off with pay and that he was ordering
refreshments and free drinks for those who wanted to remain and
that the others were free to go home. Since this occurred after the
election, it could not have been a factor influencing the results of
the election and therefore cannot be viewed as a basis for setting the
election aside.
in favor of Respondent. First, Antonetti was aware of the cri-
teria and testified, credibly in my opinion, that he observed
the criteria in every case. It would have been strange for him
to have recited those safeguards to all of those interviewed
except the three active union supporters, one of whom was
an observer at the election. I also note that no witnesses ex-
cept union delegates or negotiators were called to support
these allegations, and that the parties stipulated that Respond-
ent had available seven named witnesses who would testify
that the safeguards were recited to them. I also note as to
Maysonet, the unexplained variance between his testimony
that he was told that he was obliged to answer and not told
that he could leave, while his affidavit states that he was told
that he could leave.9
Accordingly, I conclude that Respondent did not violate
the Act by unlawfully interrogating employees.
IV. OBJECTIONS TO ELECTION
Objection 1 reads:
Two company employees in charge of its campaign,
Juan Vicens and Enrique Maldonado, during working
hours and inside the employe premises distributed prop-
aganda smearing the Union on the following dates, Au-
gust 28, 29, 30 and 31, 1989. During such days, even
though they were campaigning, they received their full
salary.
In support of its objection, the Union called three wit-
nesses, Santos, Perez, and Maysonet. Santos testified that
employees Juan Vicens and Enrique Maldonado passed out
antiunion leaflets to her shortly after 7 a.m. on 4 successive
days, August 28, 29, 30, and 31 (the day of the election),
all in 1989. According to Santos, these distributions occurred
after she had passed through the gate onto company property
and even in the patio and within the department. Maysonet
testified that Vicens and Maldonado distributed antiunion
pamphlets on these days inside the gate and also at the work
stations of employees during worktime. Maysonet testified
that Vicens gave pamphlets to him and others in his depart-
ment, naming Perez and Rafael Colon. According to
Maysonet, Maldonado distributed pamphlets in another de-
partment. Maysonet also testified that he complained to his
supervisor, Carlos Vega, about the distribution, but that Vega
did nothing. The Union called Perez to testify about the dis-
tribution. However, Perez testified only that Vicens and
Maldonado distributed pamphlets but did not testify that any
pamphlets were distributed during worktime nor did he sup-
port Maysonet’s testimony that Vicens gave him (Perez) a
pamphlet while he was working. Colon was not called as a
witness.
On the other hand, Vicens testified that while he did dis-
tribute antiunion pamphlets, he did not do so during
worktime or in any work area but limited his distribution to
employees in areas outside the gate and off company prop-
erty. This testimony is supported by Marrero and Colon who
testified that they never saw Vicens or Maldonado distribut-
ing during work hours. Vega, who supervises Maysonet and
Perez, testified that he never saw Vicens or Maldonado dis-
tributing pamphlets to Maysonet, Perez or anyone else in the
work area. In addition, the parties stipulated that Maldonado,
if called, would testify like Vicens that he distributed pam-
phlets on the 4 days in issue to employees as they came to
work between the hours of 6 and 7:15 a.m. and that he never
distributed leaflets to anyone inside the plant during
worktime, specifically not to Santos, Maysonet, or Perez.
The parties also stipulated that 10 additional employees,
named in the stipulation, would testify, if called, that on the
dates in question, August 28, 219, 30, and 31, 1989, they ob-
served Vicens and Maldonado distributing literature at the
plant gate between 6:30 and 7 a.m. to employees coming to
work and that they did not see Vicens or Maldonado distrib-
uting literature or otherwise campaigning inside either of the
2 plant buildings during worktime.
Having reviewed the entire record in light of the credi-
bility considerations noted above, I am persuaded that the
weight of the credible evidence favors those accounts recited
by the Employer’s witnesses. Accordingly, I conclude that
the evidence is insufficient to warrant the conclusion that
Objection 1 is meritorious and I shall recommend that it be
overruled.
Turning now to Objection 5, that objection reads:
During the campaign the employer and its agents of-
fered the employees a pay day for celebration and a
party if they voted against the Union.
To support its position, the Union called Perez who testi-
fied that in a meeting of employees on or about August 29
or 30, Luis Benitez, vice president and general manager of
the Employer, said that if the Company won the election,
they could have the day off with pay and that he heard noth-
ing else because he left the meeting after some 5 or 10 min-
utes. Perez was the only witness to so testify although the
meeting was attended by the entire work force numbering
hundreds of employees. Perez, in his affidavit, did not make
the same contention, saying in the affidavit only that Vega
had told him that if the Company won the election, they
would give Friday, September 1, the day after the election,
as a day off with pay.10 Perez’ testimony is not corroborated.
Indeed, union witness Santos testified that she was never told
by any supervisor that if the Company won the election, they
would have a day off with pay.11
Marrero testified, as did Kuilan, that Benitez held a meet-
ing of employees on August 30 at about 9:30 a.m. but that
he did not say anything about a day off with pay if the Com-
pany won the election. Vega denied telling Perez, either be-
828 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
fore or after the election on September 1, that they were get-
ting the day after the election off with pay as Benitez had
promised. The parties stipulated that Benitez, if called, would
testify that he never told any manager, supervisor, or em-
ployee at any time prior to the election that they would get
a day with pay if the Union won the election. Specifically,
that at a 15-minute meeting of employees held on August 30,
the day before the election, Benitez did not say that he
would give the employees the day off with pay if the Com-
pany won the election. Further, that he is the only one with
the authority to grant such a day off. In addition, the parties
stipulated that 10 more employees, named in the stipulation,
would testify, if called, that Benitez did not, at the meeting
of employees on August 30, make any promise of a day off
with pay or a party if the Employer won the election. In
these circumstances, the weight of the credible evidence per-
suades me that the contention set out in Objection 5 has not
been supported and this objection must be overruled.
In summary, I conclude that neither Objection 1 nor 5 is
meritorious. Accordingly, they should be overruled, and the
results of the election certified.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of Respondent, set forth in section III above,
occurring in connection with Respondent Employer’s oper-
ations, described in section I, above, have a close and inti-
mate relationship to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
VI. THE REMEDY
Having found that Respondent has engaged in and is en-
gaging in unfair labor practices, I shall recommend that it
cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. The Union
contends that under the authority of the Gissel case,12 the un-
fair labor practices alleged herein are so serious and perva-
sive as to warrant the imposition of a bargaining order on
the Employer, notwithstanding the absence of majority rep-
resentation by the Union. I do not agree. The remedy di-
rected herein is sufficient under the Act for the violations
found.
The unlawful unilateral changes in working conditions
found here consist of the granting of a wage increase and im-
plementation of a dental plan and while these actions were
unlawful, nothing in the remedy shall be interpreted as re-
quiring Respondent to reduce any wage increase or benefit
already granted.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. At all times relevant, Congreso de Uniones Industriales
de Puerto Rico was the exclusive representative of all the
employees in the appropriate unit set forth below for pur-
poses of collective-bargaining with respect to wages, rates of
pay, hours of employment, and other terms and conditions of
employment within the meaning of Section 9(a) of the Act.
The unit is:
All production employees employed by Respondent at
its plant located in Manati, Puerto Rico excluding all
other employees, including office clerical employees,
professional, executive, maintenance employees, ship-
ping and receiving warehouse employees, guards, jani-
tors, assistant supervisors and supervisors as defined in
the Act.
4. By unilaterally changing the terms and conditions of
employment of unit employees by granting wage increases
and by implementing a dental plan, Respondent has engaged
in unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
[Recommended Order omitted from publication.]