Bernhard-Altmann Texas Corp.

National Labor Relations Board - Board Decisions

Feb 6, 1959

122 N.L.R.B. 1289 (N.L.R.B. 1959)

BERNHARD-ALTMANN TEXAS CORPORATION 1289
voting group 2 do vote for the Petitioner, the employees in voting
group 2 will be taken to have indicated their desire for separate
representation in a unit, which the Board, under the circumstances,
finds to be appropriate for the purposes of collective bargaining, and
the Regional Director is instructed to issue a certification of repre-
sentatives to the Petitioner for such unit.
[Text of Direction of Elections omitted from publication.]
Bernhard-Altmann Texas Corporation and Loyce Lovell , John S.
Torres, Julia C. Contreras , Irene Perez, Minnie Escamilla and
International Ladies' Garment Workers ' Union , AFL-CIO,
Party to the Contract
International Ladies' Garment Workers ' Union , AFL-CIO and
Loyce Lovell , John S. Torres, Irene Perez, Minnie Escamilla,
Julia C. Contreras , Ninfa M. Escamilla and Bernhard-Altmann
Texas Corporation , Party to the Contract . Cases Nos. 39-CA-
691, 39-CA-729, 39-CA-736, 39-CA-737, 39-CA-738, 39-CB-191,
39-CB-213, 39-CB-219, 39-CB-220, 39-CB-221, and 39-CB-222.
February 6, 1959
DECISION AND ORDER
On July 29, 1958, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceedings, finding that
the Respondents had not engaged in and were not engaging in the
unfair labor practices alleged in the complaints and recommending
that the complaints be dismissed in their entirety, as set forth in
the copy of the Intermediate Report attached hereto. Thereafter,
the General Counsel filed exceptions to the Intermediate Report and
a supporting brief; the Respondent Union filed a brief in support
of the Intermediate Report.'
The Board has reviewed the rulings made by 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 exceptions and briefs, and the entire record
in this case, and finds merit in the General Counsel's exceptions.
Accordingly, the Board adopts the findings, conclusions, and recom-
mendations of the Trial Examiner only to the extent consistent here-
with.
The Trial Examiner concluded that the Respondent Company had
not violated Section 8(a) (2) and (1) of the Act by executing and
'Except for filing an answer, the Respondent Company did not enter an appearance
in this case.
122 NLRB No. 142
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
maintaining a collective-bargaining agreement with the Respondent
Union. The Trial Examiner further concluded that the Union had
not violated Section 8(b) (1) (A) by executing and maintaining the
above agreement. For the reasons stated below, we disagree.
1. The Union had been attempting with only partial success to
organize the Company's employees at its San Antonio, Texas, plant,
since about October 1956. On July 29, 1957, certain of the employees
struck in protest against a wage reduction. The Union continued
its organizational efforts during the strike, and the Company con-
tinued to operate the plant. On August 30, 1957, following negotia-
tions at its main office in New York City, the Company acceded to
the Union's claim of majority status and the two parties entered into
a "memorandum of understanding" whereby the Company recognized
the Union as the exclusive bargaining representative of its "produc-
tion and shipping employees." This memorandum also provided for,
inter alia, immediate cessation of the strike, a wage increase, insti-
tution of a checkoff system for union dues, seniority, arbitration,
a no-strike clause, duration, and the drafting of a formal agreement
within a specified period. The Employer did not request a check of
the authorization cards in the Union's possession, nor did the Union
volunteer such cards for a check 2
On October 10, 1957, the parties entered into a formal collective-
bargaining agreement which embodied the terms of the "memoran-
dum of understanding." In this agreement, the unit for which the
Union was recognized as exclusive bargaining representative was
spelled out as follows : "all non-supervisory production and shipping
department workers . . ., excluding among others mechanics, ma-
chinists, designers, sample department employees, cafeteria employ-
ees, time study employees, plant clericals, guards, watchmen, truck
drivers, engineers, maintenance men, and janitors." This unit de-
scription, except for its specificity as to exclusions, conforms to the
unit description of the "memorandum of understanding." Neither
the earlier memorandum nor the formal collective-bargaining agree-
ment contained a union-security clause.
In concluding that the General Counsel had failed to sustain the
allegations of the complaint, the Trial Examiner relies on the fol-
lowing : (a) the General Counsel's alleged failure to prove a legally
appropriate unit; (b) the General Counsel's alleged failure to prove
that the Union lacked majority status on August 30, 1957, the date
when the "memorandum of understanding" was signed; and (c)
even if the Union did not enjoy majority status on the critical date,
2 The testimony on this point was undisputed . The Union 's regional director testified
that the authorization cards were turned over to the Union's attorney during the negotia-
tions. However , there is no evidence that any sort of card check was ever made.
BERNHARD-ALTMANN TEXAS CORPORATION 1291
both the Union and the Company entertained a good-faith belief as
to the Union's majority status. For the reasons set forth below, we
do not agree with the Trial Examiner.
(a) As stated, the Union contends that the General Counsel must
allege and prove that the unit covered by the "memorandum of
agreement" is appropriate. We find no merit in this contention.
This is not a "refusal to bargain" case. The Respondent Company
is charged with having unlawfully contributed support to the Re-
spondent Union by according it recognition as the exclusive bar-
gaining representative of an agreed-upon group of employees, al-
though it had no right to act as such representative. The vice of
such action is the extension of recognition.' The assistance is not
rendered any the less potent and unlawful by the fact that in a
"refusal to bargain" case the Board might not find the agreed-upon
unit appropriate.4
(b) On August 30, 1957, the Union held authorization cards from
158 of the Company's employees. On this date, 357 employees were
working at the plant, 71 of whom the parties have agreed to ex-
clude from the unit. To the resulting sum of 286 employees, the
General Counsel seeks to add 120 employees who worked just before
the strike began on July 29, 1957, but who were not working on
the critical date. Although the Company's plant manager testified
that none of these 120 employees had been terminated and that they
were still considered to be employees on the critical date, the Union
contends that the General Counsel has failed to prove that they
belong in the contract unit. The Trial Examiner did not make a
definitive finding as to whether these employees should be included
in the unit and we find it unnecessary to do so, for the following
reason : Of these 120 employees, 88 had signed union authorization
cards prior to August 30, 1957, and are included in the Union's
showing of 158. The Union is, therefore, seeking to count these 88
cards as part of the 158 it held on the critical date while seeking
to exclude these 88 employees along with the rest of the 120, from
the unit. These inconsistent positions clearly cannot prevail. View-
ing this in the light most favorable to the Union, either 88 cards
must be subtracted from the 158, leaving its representative status on
the critical date as 70/28o,5 or at least 88 employees must be added
8 See R. B. Wyatt Manufacturing Co., Inc., 117 NLRB 700, 705; International Metal
Products Company, 104 NLRB 1076, 1077.
4 Actually, the unit set forth in the contract appears to be appropriate under usual
Board standards . In the clothing industry, the Board has found units of production
and shipping employees appropriate . Governdale & Drew, Inc., 106 NLRB 1317; K 'W B
Manufacturing Company, 106 NLRB 1305. Further, in the absence of any violation of
law or policy, the Board customarily finds stipulated or agreed-upon units appropriate.
See The Eavey Company, 115 NLRB 1779, 1780.
c Various stipulations would add 12 employees to the unit while subtracting 18 from it,
thus yielding a net amount of 6 employees to be subtracted from the unit total. There-
fore, 286 minus 6 leaves 280.
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the 286, resulting in a figure of 15%68.6 Accordingly, the Union
could not, under any circumstances, have represented a majority of
the employees involved on August 30, 1957. We find, therefore,
that the General Counsel has sustained his burden of showing the
Union's lack of majority status on the critical date.
(c) The Union contends, and the Trial Examiner appears to agree,
that the good-faith belief of both the Company and the Union as
to the latter's majority status on August 30 is a defense. We find
no merit in this contention. The recognition of, and execution of a
collective-bargaining contract with, a minority union constitutes un-
lawful assistance particularly where, as here, the Company made no
effort to check the authorization cards against its payroll records?
And where an employer has violated the provisions of the Act, his
good faith is not relevant.'
In view of the foregoing, and upon the record as a whole, we find,
contrary to the Trial Examiner, that the Respondent Company vio-
lated Section 8(a) (2) and (1) of the Act by executing and main-
taining a contract with the Union which recognized the Union as
'the exclusive bargaining representative of the employees in the
specified unit at a time when the Union did not represent a majority
of such employees.
2. We also agree with the General Counsel's contention that the
Respondent Union violated Section 8(b) (1) (A) by executing and
maintaining the above agreement as the exclusive bargaining repre-
sentative of certain employees, a majority of whom it did not rep-
resent on the date the agreement was executed. Section 7 of the
Act guarantees to employees the right to form, join, or assist labor
organizations of their own choosing as well as the right to refrain
from such activity. These rights must, of course, be reconciled with
the rights of the majority of the employees in any unit. Section
9(a) of the Act provides that the representative chosen by a major-
ity of the employees in the unit shall be the exclusive bargaining
representative of all the employees in that unit. Employees have,
therefore, not only the right to be represented only by a majority
representative but also the right to bargain independently and in-
dividually with their employer in the absence of a majority repre-
sentative.
Section 8(b) (1) (A) makes it an unfair labor practice for a labor
organization or its agents to restrain or coerce employees in the
exercise of the rights guaranteed in Section T. And there can be
no more direct deprivation of these rights, particularly of the right
to choose their own bargaining representative or to refrain from so
6 See footnote 5, supra. 286 plus 88 minus 6 yields 368.
7 International Metal Products Company, supra.
8 See The Grand Union Company , 122 NLRB 589.
BERNHARD-ALTMANN TEXAS CORPORATION 1293
doing, than to impose upon employees a collective-bargaining agent
they have not chosen. Further, the execution and maintenance of a
collective-bargaining agreement by an employer and a minority
union imposes upon the employees the duty to bargain only through
that representative, thus denying to employees the aforementioned
right to bargain individually, if they so choose. Therefore, just as
an employer violates Section 8 (a) (1) (as well as 8 (a) (2)) . by rec-
ognizing and contracting with a minority union, so, too, does a
minority union violate Section 8(b) (1) (A) by executing and main-
taining a collective-bargaining agreement in which it is recognized
as the exclusive bargaining representative.'
Accordingly, we find that the Respondent Union violated Section
8(b) (1) (A) by executing and maintaining the aforementioned col-
lective-bargaining contract at a time when it did not enjoy majority
status.
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents, as set forth above, which have
been found to constitute unfair labor practices, occurring in con-
nection with the operations of the Respondent Company, described
in the Intermediate Report, have a close, intimate, and substantial
relation 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.
CONCLUSIONS OF LAW
1. Bernhard-Altmann Texas Corporation is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. International Ladies' Garment Workers' Union, AFL-CIO, is
a labor organization within the meaning of Section 2(5) of the Act.
3. By recognizing International Ladies' Garment Workers' Un-
ion, AFL-CIO, as sole bargaining representative, and executing a
contract with it, at a time when said Union did not enjoy majority
Our dissenting colleague relies in part on the assertion that the Union committed no
overt act except the mere acceptance of the Employer 's proffer of recognition. The
record is clear that the Union was actively seeking recognition at the time such recogni-
tion was granted . Under these circumstances , we cannot agree that the Union was the
passive recipient of an unsolicited gift bestowed by the Company . We hold that the
Union was as responsible as the Company for the extension of recognition and, therefore,
was equally guilty of violating the Act.
Nor do we rely , in whole or in part , on our previous decision in Curtis Brothers, Inc.,
119 NLRB 232 , reversed 43 LRRM 2156 (C.A., D.C.). We decide here only that the
execution of a collective -bargaining agreement with a minority union, whereby that
union is recognized as the exclusive bargaining representative of all the employees in the
unit, restrains and coerces the employees in that unit , and that this restraint and
coercion is practiced both by the company and the union . No additional authority is
required beyond the plain words of Section 9(a) of the Act , which restricts the exclusive
bargaining representative status to those representatives selected or designated by a
majority of the employees in the unit.
1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
status, Respondent Company has engaged in and is engaging in un-
fair labor practices within the meaning of Section 8(a) (2) and (1)
of the Act.
4. By executing and maintaining the aforementioned collective-
bargaining agreement, the Respondent Union has restrained and.
coerced, and is restraining and coercing, the employees of the Re-
spondent Company in the exercise of the rights guaranteed in Sec-
tion 7 of the Act, in violation of Section 8(b) (1) (A) of the Act.
5. The Respondent Company did not violate Section 8(a) (3) and
(1) except as found in conclusion 3, above.
6. The Respondent Union did not violate Section 8(b) (2) and
(1) (A) except as found in conclusion 4, above.
THE REMEDY
Having found that the Respondents have engaged in unfair labor
practices, we shall require them to cease and desist therefrom and
to take certain affirmative action designed to effectuate the policies
of the Act.
We shall order the Respondent Company to withdraw all recog-
nition from the Respondent Union as representative of any of its
employees for the purpose of dealing with it concerning grievances,
labor disputes, wages, rates of pay, hours of employment, and con-
ditions of employment, unless and until the said labor organization
shall have demonstrated its exclusive majority representative status
pursuant to a Board-conducted election among the Company's em-
ployees. We shall also order the Respondent Company to cease and
desist from giving any force or effect to the collective-bargaining
agreements executed and maintained by the Respondents. However,
nothing herein shall be construed as requiring the Respondent Com-
pany to vary any wage, hour, seniority, or other substantive feature
of its relations with its employees which the Company has estab-
lished in the performance of this contract.
We shall order the Respondent Union to cease and desist from
acting as the collective-bargaining representative of any of the Com-
pany's employees unless and until said Union shall have demonstrated
its exclusive majority representative status pursuant to a Board-
conducted election among the Company's employees. We shall also
order the Respondent Union to refrain from seeking to enforce the
collective-bargaining agreements executed and maintained by the
Respondents.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
BERNHARD-ALTMANN TEXAS CORPORATION 1295
A. The Respondent, Bernhard-Altmann Texas Corporation, San
Antonio, Texas, its officers, agents, successors, and assigns, shall:
(1) Cease and desist from :
(a) Contributing support to International Ladies' Garment Work-
ers' Union, AFL-CIO, or to any other labor organization of its
employees.
(b) Recognizing International Ladies' Garment Workers' Union,
AFL-CIO, as the representative of any of its employees for the
purpose of dealing with the Company concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or other condi-
tions of employment, unless and until the said labor organization
shall have demonstrated its exclusive majority representative status
pursuant to a Board-conducted election among the Company's em-
ployees.
(c) Giving effect to the "memorandum of understanding," dated
August 30, 1957, or to the collective-bargaining agreement, dated
October 7, 1957, between the Respondent Company and International
Ladies' Garment Workers' Union, AFL-CIO, or to any extension,
renewal, or modification thereof : provided, however, that nothing in
this Decision and Order shall require the Respondent Company to
vary or abandon any wage, hour, seniority, or other substantive
feature of its relations with its employees which the Company has
established in the performance of this agreement, or to prejudice
the assertion by employees of any rights they may have thereunder.
(d) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of the rights guaranteed in
Section 7 of the Act, except to the extent that such rights may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized in Section 8(a) (3)
of the Act.
(2) Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from International
Ladies' Garment Workers' Union, AFL-CIO, as the exclusive bar-
gaining representative of its employees for the purpose of dealing
with the Company concerning grievances, labor disputes, wages, rates
of pay, hours of employment, or other conditions of employment,
unless and until the said labor organization shall have demonstrated,
its exclusive majority representative status pursuant to a Board-
conducted election among the Respondent's employees.
(b) Post at its plant at San Antonio, Texas, copies of the notice
attached hereto marked "Appendix A." 10 Copies of such notice, to
be furnished by the Regional Director for the Sixteenth Region,
10 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shall, after being duly signed by its authorized representative, be
posted by the Respondent Company immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to its employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to insure that such notices are not altered, defaced, or
covered by any other material.
(c) Post at the same places and under the same conditions as set
forth in (a) above, and as soon as they are forwarded by the Re-
gional Director, copies of the Respondent Union's notice herein,
marked "Appendix B."
(d) Notify the Regional Director for the Sixteenth Region in
writing, within 10 days from the date of this Order, what steps the
Respondent Company has taken to comply therewith.
B. The Respondent, International Ladies' Garment Workers'
Union, AFL-CIO, its officers, representatives, agents, successors, and
assigns, shall:
(1) Cease and desist from :
(a) Acting as the exclusive bargaining representative of any of
the employees of Respondent Bernhard-Altmann Texas Corporation
for the purpose of dealing with said Company concerning grievances,
labor disputes, wages, rates of pay, hours of employment, or other
conditions of employment unless and until said Union shall have
demonstrated its exclusive majority representative status pursuant
to a Board-conducted among the Company's employees.
(b) Giving effect to the "memorandum of understanding," dated
August 30, 1957, or to the collective-bargaining agreement, dated
October 7, 1957, between the Respondent Union and Bernhard-
Altmann Texas Corporation, or to any extension, renewal, or mod-
ification thereof.
(c) In any like or related manner, restraining or coercing the
employees of Bernhard-Altmann Texas Corporation in the exercise
of the rights guaranteed in Section 7 of the Act, except to the extent
that such rights may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment as author-
ized in Section 8(a) (3) of the Act.
(2) Take the following affirmation action which the Board finds
will effectuate the policies of the Act :
(a) Post at its offices and meeting hall at San Antonio, Texas,
copies of the notice attached hereto marked "Appendix B." 11 Copies
of said notice, to be furnished by the Regional Director for the
Sixteenth Region, shall, after being signed by the Respondent
Union's representative, be posted by it immediately upon receipt
thereof and maintained by it for 60 consecutive days thereafter, in
11 See footnote 10, supra.
BERNHARD-ALTMANN TEXAS CORPORATION 1297
conspicuous places, including all places where notices to members
are customarily posted. Reasonable steps shall be taken by the
Respondent Union to insure that said notices are not altered, defaced,
or covered by any other material.
(b) Mail to the Regional Director signed copies of Appendix B,
for posting by Respondent Company, at its San Antonio, Texas,
plant, as provided above. Copies of said notice to be furnished by
the said Regional Director, shall, after being signed by the Respond-
ent Union's representative, be forthwith returned to the Regional
Director for disposition by him.
(c) Notify the Regional Director for the Sixteenth Region in
writing, within 10 days from the date of this Order, `what steps it
has taken to comply herewith.
MEMBER FANNING, concurring in part and dissenting in' part':
In October 1956 the Union began its organizational campaign
among the employees of this Employer. As a result of 'a "wage re-
duction in the topping department, a strike occurred in July 1957.
Thereafter on August 30, 1957, almost a year after the initiation
of the Union's campaign, the Employer recognized the Union as the
employees' majority bargaining representative and entered into a
"memorandum of understanding" providing for a wage increase for
all employees, and other substantial benefits. Although the contract
included a provision for the checkoff of union dues, there was no
requirement that any employee join the Union. Prior to the execu-
tion of the contract the Employer had not requested and the Union
had not submitted evidence of its majority status. The record re-
veals, however, that the Union had made a determination, based
upon its estimate of the number of employees in the appropriate
unit who had selected the Union as their representative, that it was,
in fact, the majority representative. Accepting, as I do, the ma-
jority's factual findings, it is apparent that the Union's estimate was
wrong. In reaching my conclusion in this case I have been aware
of the fact that the Union had engaged in a legitimate organiza-
tional campaign, that the resulting contract contains 'substantial
benefits for these employees, and that there is nothing in the record
to suggest collusion on the part of the Union and 'Employer to saddle
the employees with a sham contract. Nevertheless, I am satisfied
that the principle of law which requires an employer to assure itself
of a union's majority status either through a Board election or other
competent evidence before extending recognition is a sound one in
the field of labor-management relations. Accordingly, I agree with
the majority that the Employer's recognition of the Union was
premature and in violation of Section 8(a) (1) and (2) of the Act.
However, I must disagree with the majority that the Union's ac-
505395-59-vol. 122-83
1298 DECISIONS . OF NATIONAL LABOR RELATIONS BOARD
ceptance of recognition by the Employer in a contract establishing
higher wages and better working conditions for the employees con-
stitutes restraint or coercion of these employees within the meaning
of Section 8(b) (1) (A). The majority's conclusion is, in my opinion,
an extension of a theory repudiated by the only court of appeals
in which the issue has been litigated. In Curtis Brothers, Inc.,
119 NLRB 232, a majority of the Board held that peaceful picketing
for recognition by a minority union was a violation of Section 8
(b) (1) (A). I was not a member of the Board at the time this case
issued. In subsequent decisions, however, I expressed my disagree-
ment with the majority's legal conclusions as stated in that case.
Andrew Brown Company, 120 NLRB 1425; Machinery Overhaul
Company, Inc., 121 NLRB 1176. Recently, the Court of Appeals
for the District of Columbia reversed the Board's Curtis decision in
an opinion adopting the Trial Examiner' s and the dissenting mem-
ber's views, which conform substantially to my interpretation of this
section of the Act. Drivers, Chauffeurs and Helpers, etc. Local 639
v. N.L.R.B., 43 LRRM 2156. The legislative history of Section 8
(b) (1) (A) has been fully set forth in prior decisions of the Board.
National Maritime Union of America, etc., 78 NLRB 971; Perry
Norvell Company, 80 NLRB 225; Curtis Brothers, Inc., supra. In
sum, that history reveals through statements of proponents of the
Act such as Senators Taft and Ball that Congress intended to limit
the application of the term "restrain or coerce" to actual threats,
intimidation of employees, violence, "the coercion of goon squads
and other strong-arm organizing techniques." 93 Congressional
Record A2252. It was not intended to forbid peaceful organizational
activity or, indeed, a strike by a minority union for recognition.
Consistent with this legislative history and the court's holding that
a strike for recognition by a minority union is not violative of Sec-
tion 8(b) (1) (A), I cannot agree that an employer's voluntary
recognition of a minority union imposes upon that union an unfair
labor practice solely on the ground that it accepted recognition.
In the Curtis case the Union committed an overt act, i.e., picket-
ing intended to influence employees not to work. Here the Employer
committed the overt act, i.e., extending recognition to a union under
the mistaken belief that a majority of employees had, in fact, selected
the union for bargaining purposes. The Employer, acting at its
peril, illegally assisted this Union in its organizational drive. To
hold, however, as the majority does, that the Union in these cir-
cumstances must have refused the Employer's proffer of recognition
to avoid liability under Section 8(b) (1) (A) seems to me to go far
beyond the congressional purpose of this section of the Act, far
beyond the already repudiated Curtis majority opinion, and beyond
BERNHARD-ALTMANN TEXAS CORPORATION 1299
the realities and equities in labor-management relations. Here was
a Union that fought hard to secure substantial benefits for a group of
employees. It did secure these benefits from a reluctant employer
in a contract that did not require any employee to be or become a
member of the Union. The majority nevertheless finds that the em-
ployees were restrained and coerced because the Union acted on
their behalf and in their interest before it had achieved majority
status. Employees, of course, have the unquestioned right to choose
their own bargaining representative. But this right should not be
confused with the statutory prohibition against restraint or coercion
by a union. The one involves a question concerning representation,
the other, prohibited conduct that removes from the area of labor-
management relations intimidation and threats to force employees
to make one choice or another. A union's claim to recognition is
a familiar fact of industrial life. I have found no Board or court
decision which suggests that such a claim, admitted by the Employer
to be valid, suddenly becomes coercion of employees. Section ,9 of
the Act specifically provides methods and procedures whereby em-
ployees can select or reject any union asserting a claim to be, or
established as, their bargaining representative. The resolution of
representation cases is a matter entirely within the discretion of the
Board. It is in this forum that an employer's recognition or non-
recognition of a particular union is subject to defeasance or affirma-
tion. Where the Board is satisfied that a question concerning repre-
sentation exists, the Statute does not recognize any contract as a
restraint upon the right of employees to make a choice for bargain-
ing purposes. In the instant case the employees were free at any
time to petition the Board for immediate decertification of the Union.
The Board would then in its discretion decide whether or not the
contract barred an election. A decision that the contract operated
as an effective bar would, it is true, foreclose the holding of an im-
mediate election, but this restraint upon the right of employees to
quickly repudiate an unwanted representative would be imposed not
by the statute, not by the Union, but by the Board itself.. I cannot
agree that the operation of discretionary Board rules is sufficient to
create an unfair labor practice where none would otherwise exist.
It seems to me the majority tilts at windmills in holding that the
bona fide attempt of a minority union to secure substantial benefits
for employees through collective bargaining amounts to unlawful
restrain or coercion. I see no wrongdoing here and would not
fashion an unfair labor practice out of a mere error in statistics.
MEMBER RODGERS took no part in the consideration of the above
Decision and Order.
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT contribute support to International Ladies'
Garment Workers' Union, AFL-CIO, or to any other labor
organization of our employees.
WE WILL NOT recognize International Ladies' Garment Work-
ers' Union, AFL-CIO, as the exclusive bargaining representative
of our employees, unless and until the said labor organization
shall have demonstrated its exclusive majority status pursuant
to a Board-conducted election among our employees.
WE WILL NOT give effect to the "memorandum of understand-
ing," dated August 30, 1957, or to the collective-bargaining
agreement, dated October 7, 1957, between International Ladies'
Garment Workers' Union, AFL-CIO, and ourselves : provided,
however, that nothing in this Decision and Order requires us
to vary or abandon those wage, hour, seniority, or other sub-
stantive features of our relations with our employees, established
in performance of any such agreement, or to prejudice the as-
sertion by employees of any rights they may have thereunder.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed in Section 7 of the Act.
All our employees are free to become, to remain, or to refrain
from becoming or remaining, members of the above-named labor
organization or any" other labor organization.
BERNHARD-ALTIIZANN TEXAS CORPORATION,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
APPENDIX B
NOTICE TO ALL MEMBERS OF INTERNATIONAL LADIES' GARMENT
WORKERS' UNION, AFL-CIO AND TO ALL EMPLOYEES OF BERNHARD-
ALTMANN. TEXAS CORPORATION, SAN ANTONIO, TEXAS
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
BERNHARD-ALTMANN TEXAS CORPORATION 1301
WE WILL NOT act as the exclusive bargaining representative
of any of the employees of Bernhard-Altmann Texas Corpora-
tion, San Antonio, Texas, unless and until we shall have demon-
strated our exclusive majority representative status pursuant to
a Board-conducted election among the employees of the said
Company.
WE WILL NOT give effect to the "memorandum of understand-
ing," dated August 30, 1957, or to the collective-bargaining
agreement, dated October 7, 1957, between Bernhard-Altmann
Texas Corporation and ourselves, or to any extension, renewal,
or modification thereof.
AVE WILL NOT in any like or related manner restrain or coerce
the employees of Bernhard-Altmann Texas Corporation in the
exercise of the rights. guaranteed in Section 7 of the Act.
INTERNATIONAL LADIES' GARMENT
WORKERS' UNION, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material..
INTERMEDIATE REPORT
STATEMENT OF THE CASE
The above-entitled cases having been consolidated, on April 25, 1958, as to each
of the two Respondents, by order of the General Counsel for the National Labor
Relations Board, and a complaint as to each consolidated group having been issued
and served by said General Counsel, a hearing was held in San Antonio, Texas, on
June 4, 5, 6, 7, 9, and 10, 1958, before the duly designated Trial Examiner.
Both complaints are based upon charges duly filed and served. That issued
against the Respondent Employer alleges in substance, after amendment during
the hearing, that it has violated Section 8(a)(i),(2), and (3) of the National Labor
Relations Act, as amended (61 Stat. 136), by: (1) entering into certain exclusive
recognition agreements with the Respondent Union at times when said Union did
not represent an uncoerced majority of employees in an appropriate unit covered
by said contracts; (2) discriminating as to the conditions of employment of em-
ployees Minnie Escamilla and Julia Contreras, in order to encourage membership
in the Respondent Union; and (3) thus interfering with, restraining, and, coercing
employees in the exercise of rights guaranteed by Section 7 of the Act.
The complaint against the Respondent Union alleges in substance, after amend-
ments during the hearing, that it has violated Section 8(b)(2) and 8(b)(1)(A) of the
Act, by: (1) entering into the said agreements with the Respondent Employer;
(2) causing the Respondent Employer to discriminate, in violation of Section 8(a)(3),
against the two above-named employees; and (3) thus restraining and coercing
employees in the exercise of rights guaranteed by Section 7 of the Act.
In their answers, the Respondents denied commission of the alleged unfair labor
practices. At the hearing General Counsel and the Respondent Union were repre-
sented by counsel. No appearance was made for the Respondent Employer. Full
opportunity was afforded counsel to be heard, to examine and cross-examine wit-
nesses, to introduce relevant evidence, to argue orally, and to file briefs and
proposed findings and conclusions of law. Comprehensive briefs have been received
from General Counsel and the Union.'
'At this point the Trial Examiner desires to record his appreciation for the industry
and earnest endeavor displayed by both counsels, during recesses of hearing sessions and
1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'At the conclusion of the hearing ruling was reserved upon a motion by the
Union to dismiss the complaint against it for failure of adequate proof. Said
motion is disposed of below by the following findings, conclusions, and recom-
mendations.
Upon the entire record and from his observation of the witnesses, the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT EMPLOYER
Bernhard-Altmann Texas Corporation is a Delaware corporation, with principal
office and place of business in San Antonio, Texas, where it is engaged in the
manufacture of knit wear.
At its San Antonio plant, during the 12-month period before issuance of the
complaint, said Employer purchased and had shipped to it from points outside
Texas various types of yarn valued at more than $1,000,000. During the same
period it sold and shipped outside Texas, from its San Antonio plant, finished
products valued at more than $1,000,000.
The Respondent Employer is engaged in commerce within the meaning of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
International Ladies' Garment Workers' Union , AFL-CIO, is a labor organiza-
tion admitting to membership employees of the Respondent Employer at its San
Antonio plant.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Setting and major issues
In summary , the following facts broadly outline the setting in which , General
Counsel claims, both the Employer and the Union engaged in conduct violative
of the Act:
(1) At the San Antonio plant of some 400 persons, employees began signing
union authorization cards in the fall of 1956. Stipulated evidence shows that in
varying number employees continued , from October 1956 to September 1957, thus
to designate the Union as their bargaining representative.
(2) There is no claim or evidence that during the Union's organization cam-
paign any other labor organization was similarly engaged.
(3) Throughout this campaign the Employer vigorously opposed the Union's
efforts. (General Counsel conceded : "I will be glad to stipulate with counsel that
there was an area or situation of antipathy between the company and the Union
prior to the entrance of the memorandum agreement . . . and the employees were
aware of it. .
(4) In protest against a wage reduction imposed by the Employer in one of its
departments , a substantial number of employees struck on July 29, 1957, and
remained on strike until August 30.
(5) On the latter date , following protracted negotiations between top officials of
both the Employer and the Union in New York City, the parties executed a
"memorandum of understanding" which , among other things, provided for:
a. immediate cessation of the strike.
b. recognition of the Union's claim of majority representation for "all pro-
duction and shipping employees."
c. an increase in wages.
d. institution of a check off system for union dues.
e. no strike or lockout.
f. drafting of a formal agreement within a specified period.
(6) Shortly after the execution of this memorandum and cessation of the strike,
management officials at the San Antonio plant informed employees generally of
the memorandum and urged those who had not already done so to join the Union,
in the interest of developing amicable relations after so long a period of bitter
dispute.
many hours outside the hearing , in examining voluminous employer and union records
and from them compiling and preparing various lists which were then placed in evidence
by agreement. Their efforts succeeded in holding to a minimum what otherwise might
have been an extremely long record.
BERNIIARD -ALTMANN TEXAS CORPORATION 1303
(7) On October 10, 1957, the two parties entered into a formal contract , in which
the Employer agreed to recognize the Union as the "exclusive bargaining repre-
sentative" for "all non-supervisory production and shipping department workers .. .
excluding among others mechanics , machinists , designers , sample department em-
ployees, cafeteria employees, time study employees , plant clericals , guards, watch-
men, truck drivers, engineers , maintenance men, and janitors."
(8) It is here noted, and emphasized , that neither the August 30 memorandum
,nor the October 10 contract contains any provision requiring membership in the
Union as a condition of employment . Nor is there credible evidence that after
August 30-or before , for that matter-any employee was told by any management
or union representative that he or she must join the Union . On the contrary,
while there is credible evidence that after the conclusion of the strike employees
were urged to join, both by management and union officials , they were specifically
informed that such action was not compulsory.
Reduced to its simplest terms, the nub of General Counsel 's case appears to
rest upon his claim the Employer violated the Act on August 30, by rendering
illegal support and assistance to the Union in signing the memorandum of under-
standing which recognized it as the exclusive bargaining representative of employees
"in the collective bargaining unit covered by such agreement at the time of its
execution , as required by Section 9, subsection (a) of the Act," at a time when
the Union "did not represent an uncoerced majority of the employees" in the
said unit.
That General Counsel himself considers the critical issue to be determination of
the majority question on August 30 is indicated by the following quotation from
his able brief:
Counsel for General Counsel respectfully submits that the subsequent status
of the Respondent Union has no bearing whatsoever . Whether or not a
majority status was attained subsequent to the execution of the memorandum
agreement as of August 30, 1957 , does not in any way materially affect the
determination of the Complaint and the hearing. Whether or not the Re-
spondent Company and the Respondent Union are found to have coerced
employees subsequent to August 30, 1957, does not control , since the memo-
randum agreement executed as of August 30, 1957, recognized the Union as
the majority representative of the employees covered under the terms and
conditions of that agreement . The subsequent agreement . is no more
than a modification and formalization of the contract according to the terms
of the memorandum agreement.
Consideration will therefore be first given to the critical point of the August 30
memorandum.
B. The August 30 memorandum
Early during the hearing counsel for the Union urged dismissal of the complaint
against it , claiming that it was defective in that it failed to allege specifically what
the appropriate unit was, on August 30 . In reply General Counsel said:
Well, I cannot bind the Board by stating what is an appropriate unit. But
on the basis of the contract and the individuals that are covered under the
contract in this unit , it is our position that the Union did not represent an
uncoerced majority of these people.
The next day, however , General Counsel amended his complaint by alleging:
As of on or about September 1st, 1957, the Respondent Union did not repre-
sent a majority of the employees in the unit as set forth and described in the
contract by and between the Respondent Union and the Bernhard-Altmann
Texas Corporation, entered into and executed on or about the aforesaid date.
At no point , however, has General Counsel alleged or defined an "appropriate
unit," within the meaning of Section 9(a) of the Act , although in his complaint
against the Respondent Employer, he specifically invokes that section , in reference
to the same contract.
Deferring at least for the moment the question as to whether or not the com-
plaints were fatally defective-in that they failed to provide the parties with a
clear and specific allegation defining his claim as to a legally appropriate unit, the
Trial Examiner sets out the following observations , and certain relevant facts.
1. Other than by speculation , inference, or assumption , the Trial Examiner is
unable from the record to determine the precise definition of the unit in which
General Counsel claims the Union did not represent a majority on August 30.
1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The state of the record does not afford a competent array of facts from which
accurate calculation can be made as to the precise number of employees, in any
unit, actually on the payroll and properly to be counted , as of August 30.
As to observation 1: Certain inconsistencies in the pleadings themselves have
been noted above. It has also been noted that while the August 30 memorandum
refers to a broad unit of "all production and shipping employees ," with no exclu-
sions cited , the October 10 contract again refers to "production and shipping de-
partment workers" but specifically excludes some 13 separate groups of employees.
During the course of the hearing, particularly when identifying certain documents,
General Counsel made it apparent that he was really contending that the unit to
be considered was that containing the exclusions cited in the October 10 contract.
And in his brief he refers to "the unit described in General Counsel 's Exhibits 2
and 3"-which are, respectively, the agreements of August 30 and October 10.
As to observation 2: In evidence are 2 lists of employees : one of some 287 indi-
viduals purportedly working during the week ending August 31, and another of
about 120 individuals purportedly working during the week ending July 27, but
not on August 31.
There is competent evidence , elicited by General Counsel, that the list of 287
does not include any "clericals , plant clericals , watchmen and plant supervisors,"
but no evidence of a persuasive nature that it does not include employees in any
or all of some 9 or 10 other categories excluded in the October 10 contract.
As to the second list of about 120 employees, the record does not permit an
accurate finding as to how many of them should properly be counted as being on
the payroll as of August 30. Nor is there any evidence as to whether or not any
of these more than a hundred individuals, if properly to be counted as on the
payroll, were actually in any of the excluded categories. The plant manager him-
self admitted that some of such individuals may have been terminated before
August 30.
A further example of uncertainty involves a group of some 25 individuals, un-
identified, who were hired during the strike. Although the plant manager, Richard
Simon, testified that he considered such hirings to be permanent , it is undisputed
that Simon's superiors, during the New York negotiations, informed the Union that
such persons were only temporary employees.
Before drawing conclusions from the above observations, relative to the majority
question on August 30, consideration should be given to other factors bearing upon
the whole question of illegal recognition.
First, it should be emphasized that in this case there is no "sweetheart" contract
element. At no time, so far as the record shows, was there any other labor organi-
zation in the picture. For a period of some 8 or 9 months before the strike the
Union had been organizing employees-not "organizing the employer," and actu-
ally in the face of open opposition on the part of the employer . Before entering
into the August 30 agreement, the employer had obvious reason to believe, since
a substantial proportion of his employees had been on strike for a month, that the
Union represented a good part of his employees.
And although no specific figures were cited, the testimony of Sol Chaikin, the
Union's regional director, is unchallenged that "on at least two occasions" during
the week of negotiations in New York he was advised as to the number of em-
ployees whom the Employer "had determined would be working for them or eligible
to join the union," and that from cards brought to New York and other informa-
tion received from San Antonio he was convinced that his organization represented
a majority before the claim of majority was made.
It is clear that the Employer did not demand an actual accounting, and there
was no determination of majority by way of applying signed cards to any payroll.
Obviously such a payroll list would have been impractical if not impossible at that
time-for the plant was still struck.
All such evidence leads to the reasonable conclusion that both parties were act-
ing in good faith on August 30: the Union in claiming majority, and the Employer
in accepting the claim. There is no hint of collusion or "conspiracy" between the
parties, as suggested by General Counsel.
C. Conclusions as to the majority status
The Trial Examiner is convinced , from all the evidence , that the Employer and
the Union entered into the August 30 memorandum understanding in good faith.
And the existence of at least some 150 cards conceded by General Counsel as
probably validly signed, is plainly not an insignificant proportion of some 250-400
employees in various possible units . In any event , the proportion is admittedly
such that in a state of uncertainty there is no sure basis for an inference that the
BERNHARD-ALTMANN TEXAS CORPORATION 1305
Union did not, and could not have, represented a majority in any appropriate unit.
In view of the foregoing factors, it seems to the Trial Examiner that the burden,
of providing clear and unequivocal proof to support his claim that the Union did
not represent a majority, rests even more heavily upon General Counsel than in
a situation such as he cites in Coast Aluminum Company,2 where the employer not
only entered into an exclusive bargaining agreement with a union before the latter
had any representation among employees, but then proceeded to do the organizing
for the Union himself. And this burden, the Trial Examiner believes, has not
been convincingly borne.
As it stands, the record provides no reasonable basis for other than a number
of speculative possibilities, both as to what an appropriate unit was on August 30,
1957, and as to precisely how many employees were properly to be counted within
any or all of these possible units.
It is a mathematical certainty, the Trial Examiner believes, that dividing a
variable even by a constant-or a constant by a variable-can bring only a vari-
able answer . Accuracy in calculating a majority is defeated when any one of the
essential factors is uncertain.
In short, the Trial Examiner concludes and finds that the allegations that the
Union did not represent a majority of the employees on August 30, 1957, is not
sustained by a preponderance of the credible evidence. It follows, and is con-
cluded and found, that all other allegations with reference to the agreements (since
the claim of illegality is based upon the question of majority representation) are
not sustained by the evidence.
D. The claimed incidents of coercion
General Counsel offered evidence as to only two alleged incidents of specific
Employer coercion, designed to force an employee into the Union.
One incident involves employee Minnie Escamilla. As to her, evidence is to the
effect that in October, after execution of the formal contract and upon protest of
the Union that certain contract terms were being violated, the Employer withdrew
a raise it had promised Escamilla during the strike and had given her sometime
in September. Two witnesses besides Escamilla testified for General Counsel on
the matter: Plant Manager Simon and Production Manager Kovalski. Despite the
denials of such allegations in the Respondent Employer's answer, Simon and Koval-
ski cheerfully and willingly testified to the contrary, and admitted that they told
Escamilla, after withdrawing the raise, that she would probably get it back if she
joined the Union. The Trial Examiner believes neither Simon nor Kovalski. Al-
though it is clear that there was but one occasion when Escamilla was called into
the office to be told that her raise was being withdrawn, the testimony of Simon
and Kovalski is in sharp conflict as to who was present. Simon said he was not
sure Kovalski was there. Kovalski said only he, a union official and Vice Presi-
dent Plecher were present-and he later admitted that no union official was there.
Even Escamilla-whose testimony is replete with self-contradictions-makes no
mention of Simon being present or saying anything to her. Since both Simon and
Kovalski admitted that the Union's protest was based entirely upon the contract
provisions, it is plain that no occasion could have arisen for either of them volun-
tarily to have tried to force Escamilla to join the Union to get her raise back.
The Trial Examiner finds insufficient credible evidence to support the allegations
of the complaint with respect to Escamilla.
The second incident involves employee Julia Contreras who, although she appears
to have signed a charge, was not called as a witness. Thus the record is barren
of any testimony from the person alleged to have been "coerced." As in the case
of Escamilla, Kovalski willingly admitted that either he or Plecher had told her
that she would get a raise if she joined the Union. On cross-examination, how-
ever, Kovalski admitted facts of the situation which make it plain that there was
no occasion for any member of management thus coercing her. He finally ad-
mitted that the Union itself, at a time when Contreras was not a member, pro-
tested that the Employer had erred in her seniority and insisted that she be
accorded her proper place and the consequent raise. He also admitted that the
Union did not condition her getting a raise upon joining. The Trial Examiner
cannot believe Kovalski's claim of coercion. Both his testimony and his demeanor
raised more than a faint suspicion that he felt it to be his interest to admit coercion
in order to get the contract set aside.
2120 NLRB 1326.
1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. Conclusions in summary
As noted heretofore, General Counsel apparently rested the major part of his
entire case upon the single question of the Union 's majority on August 30. Had
he succeeded in proving that the memorandum of understanding was violative of
the Act, the admitted and proven fact that management officials agreed to and did
urge employees to join , after its signing, would have assumed greater significance.
Under the circumstances , however, the contract not being proven illegal , the Trial
Examiner perceives nothing in the evidence which establishes that either before or
after August 30 has either the Employer or the Union exceeded the free-speech
privileges accorded by Section 8(c) of the Act. There is no credible evidence of
economic threats or of promises of benefit made conditional upon employees
joining.
The Trial Examiner therefore concludes and finds that the preponderance of
credible evidence is insufficient to sustain allegations of unfair labor practices by
either of the Respondents.
Upon the basis of the foregoing findings and conclusions of facts , and upon the
entire record in the case , the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. International Ladies' Garment Workers' Union, AFL-CIO, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
2. Bernhard-Altmann Texas Corporation is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
3. Bernhard-Altmann Texas Corporation has not engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1), (2), and (3) of the Act.
4. International Ladies' Garment Workers' Union, AFL-CIO, has not engaged
in unfair labor practices within the meaning of Section 8(b) (1) (A) and (2) of
the Act.
[Recommendations omitted from publication.]
Murray Ohio Manufacturing Co., Lawrenceburg , Tennessee,
Division and International Union , United Automobile, Air-
craft & Agricultural Implement Workers of America, AFL-
CIO. Cases Nos. 10-CA-3040 and 10-RC-387. February 6,1959
DECISION, ORDER, AND DIRECTION OF ELECTION
On September 8, 1958, Trial Examiner Albert P. Wheatley 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, and recommending further that
the election held on September 11, 1957, in Case No. 10-RC-38721
be set aside and a new election be held, as set forth in the copy of
the Intermediate Report attached hereto.2 He further found that
the Respondent had not engaged in certain other unfair labor prac-
tices alleged in the complaint and recommended that the complaint
be dismissed with respect thereto. Thereafter, the Respondent and
1 Pursuant to the Board 's Decision and Direction of Election , 118 NLRB 1027.
On May 21 , 1958 , the Board Issued a Supplemental Decision and Order , 120 NLRB
1060 , directing a hearing before a Trial Examiner , on certain objections filed by the Union
herein to the conduct of the election . On May 23 , 1958 , the Board ordered Cases Noe.
10-RC-3872 and 10-CA-3040 consolidated.
122 NLRB No. 152.