Edro Corp.

National Labor Relations Board - Board Decisions

Jun 29, 1964

147 N.L.R.B. 1167 (N.L.R.B. 1964)

EDRO CORPORATION AND ANASCO GLOVES, INC. 1167
Edro ^ Corporation'-and: Anasco Gloves, Inc. and Amalgamated
Clothing Workers of America , AFL-CIO. Case No. P24-CA-
1735. June 29, 1964
DECISION AND ORDER
On October 9, 1963, Trial Examiner Morton D. Friedman issued
his Decision in the above-entitled proceeding finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Decision. Thereafter,
the Respondent and the Charging Party filed exceptions to the De-
cision and supporting briefs.
Pursuant to the provisions of. Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions,' and recom-
mendations of the Trial Examiner.2 The request for oral argument,
1 Our dissenting colleague relies upon the recent decision of the First Circuit Court of
Appeals in the Gorbea case as support for his conclusion that the Union made a material
misrepresentation which rendered its showing of majority status here invalid . The Gorbea
case is distinguishable from the instant one on a factual basis, for the court's conclusion
that the statement on the card relating to waiver of initiation fees constituted "a clear,
positive misrepresentation" was based upon the finding that the card "misstated [the
Union's ] present intent ." [Emphasis supplied .] Accordingly , the crucial factor in the
court's decision in Gorbea was factual rather -than inherent in the wording of the authori-
zation card itself. In contrast, there is no evidence in this record of the Union's "pro-
cedure and intent" at the time of the events herein which could be used to test the truth-
fulness of the statement on the card.
Where a prima facie showing is made by the General Counsel , it is incumbent on the
party asserting a defense , to go forward with evidence to establish its position. In the
absence of any such evidence here, the dissenting opinion relies on the unwarranted
assumption that because the same union used the same type of authorization card in both
cases, the same circumstances otherwise must have obtained and the same decision must
follow. But much can happen to change a given policy in the span of 2 years , which is
the period that elapsed between the organizational campaign in Gorbea and that con-
ducted in the instant case. This is especially so where that policy has been a crucial
issue in a court proceeding . The court ' s remand on that very issue took place in the
Gorbea proceeding before the union began its campaign in the instant case . If any assump-
tion is warranted in these circumstances, reason would suggest that the Union would
direct its policy on the side of caution to avoid any chance of repeating an unnecessary
forfeiture of the rewards of its organizational efforts.
2 As the Board, in Bernel Foam Products Co., Inc., 146 NLRB 1277, reserved the rule
of waiver established in Louis Aiello , et al., d/b/a Aiello Dairy Farms, 110 NLRB 1365,
the effect of that rule in the circumstances of this case is no longer material . Accord-
ingly, Members Fanning and Brown find it unnecessary to consider or pass upon the Trial
Examiner's determination with respect thereto.
147 NLRB No. 107.
1168 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
filed by the Charging Party on November 29,1963, is hereby denied as
the record in this proceeding adequately presents the issues.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Order recommended by the Trial Examiner, and orders that
the Respondent, Edro Corporation and Anasco Gloves, Inc., its offi-
cers, agents, successors, and assigns, shall take the action set forth in
the Trial Examiner's Recommended Order.',
MEMBER LEEDOM, dissenting in part :
I cannot find, on this record, that the General Counsel has estab-
lished the Union's majority status. Failing that, I must, apart from
other considerations,' dissent from my colleagues' affirmance of the
Trial Examiner's finding that the Respondent violated Section 8 (a)
(5) of the Act.
The General Counsel sought to establish the Union's majority status
on the basis of cards which stated in relevant part:
Those joining now will never have to make an initial payment.
Those who wait until the contract is signed will have to pay the
regular initiation fees.
No initiation fees . . . . I
As the Trial Examiner stated, this is the same card, and the Charg-
ing Union here is the same Union, as were involved in the recent
Gorbea case,5 in which I dissented, along with former Member
Rodgers, from the majority's conclusion that such cards were probative
evidence of the Union's majority status. As the dissent noted there,
the evidence in the Gorbea case established that "the Union offered to
waive payment of its `regular initiation fee' to';induce employees to
sign the bargaining authorization cards, although the Union, in prac-
tice, charged no initiation fee, and thus had no `regular initiation fee.' "
Although the Union's organizational campaign involving the Gorbea
case occurred during the fall of 1960, and the campaign herein oc-
3 As we believe that the Order recommended by the Trial Examiner is sufficient to
remedy the unfair labor practices committed , we reject the contention of the Charging
Party that Respondent should now be required to take additional affirmative action.
* Thus I find it unnecessary to consider whether, on the facts in this case , the 8(a) (5)
allegation of the complaint should be dismissed under the rule of ' Aiello Dairy Farms,
-110 NLRB 1365. The Trial Examiner concluded that on the facts in this case the Board
would make an exception to the Aiello rule, and the Board majority, in its decision in
Berncl Foam Products Co., Inc., 146 NLRB 1277, from which I dissented , has now
abandoned that rule.
G Gorbea, Perez & Morell S. en G., 142 NLRB 475, enforcement denied in relevant part
329 F. 2d 679 (C.A. 1).
EDRO CORPORATION AND ANASCO GLOVES, INC. 1169
curred during the 6-month period'endingin:ealrly October-1962, there
is nothing in this record to indicate 'that the Union had in the interim
changed either its organizing techniques or its practice with respect to'
its initiation fees. Thus, with respect to the Union's representation.
concerning its initiation fee practice, it is just as true here as it was in
Gorbea, where the dissent pointed.out that: "Not only was this repre-
sentation false, but the Union knew it was false." And it is further
true, here as there, that "the Union's purported waiver of its so-called
`regular initiation fee' involved a substantial misrepresentation as to
a material fact, and that cards obtained through such misrepresenta-
tion do not reflect the free will of employees signing them."
My conclusions on this matter find ample support in the stated view.
of the Court of Appeals for the First Circuit. In declining to en-
force the Board's bargaining order in Gorbea, that court stated e that
the Union's representations there in issue constituted "a bold attempt
to buy membership at a phonily reduced rate." And, the court con-
tinued : "Accordingly, we think the two members of the Board who
predicated their dissent on the ground of misrepresentation were in
that regard inescapably correct, and that the record as a whole
rebuts a finding that the union was the freely designated bargaining
representative."
I can perceive-no meaningful distinction between that which I
deemed to be the inadequate foundation for the Union's asserted major-
ity in Gorbea, and the similarly inadequate foundation for its asserted
majority here. I would therefore dismiss the 8 (a) (5) allegation of the
complaint,' and would tailor the Order to remedy only the Respond-
ent's.violation of Section 8 (a) (1).
6N.L.R.B. v. Gorbea, Perez & Morell S. en a., 328 F. 2d 679 , at 683 (C.A. 1).
I The conclusion which'I reach as to the Union 's misrepresentations herein is supported
by the general rule of evidence that, where a state of things is once established by proof,
the law presumes that such a state of things continues until the contrary is shown.
Wigmore on Evidence, vol. II, sec. 437 (3d edition). My colleagues' willingness to assume
without evidence that the Union has changed its tactics is not so supported. If my
colleagues are unwilling to apply that established rule here, it would seem appropriate,
at the very least, to remand this proceeding so that evidence may be taken concerning
this crucial factual issue underlying the Union 's claim to majority status.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge and amended charge filed by Amalgamated Clothing Workers of
America, AFL-CIO, herein called the Union , on March 4 and 25 , 1963, the Gen-
eral Counsel of. the National Labor. Relations Board, herein called the Board, by
the Regional Director for the Twenty-fourth Region, issued his complaint dated
May 9 , 1963 , against Edro Corporation and Aiiasco Gloves, Inc., herein called
collectively the Respondent or the Company, alleging that the Respondent had en-
gaged in and was engaging in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of the National
Labor Relations Act (61 Stat. 136), herein called the Act. The Respondent's answer
to the complaint herein denies the allegation of statutory violations . Copies of the
complaint and notice of hearing were duly served upon all of the parties..
756-236-65-vol . 147-75
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to notice, a hearing was held at Mayaguez and Santurce, Puerto Rico,
on various dates between June 10 and 28, 1963, before Trial Examiner Morton D
Friedman All parties were represented by counsel Full opportunity to be heard
to examine and cross examine witnesses, and to introduce evidence was afforded to
all parties After the close of the hearing the General Counsel, the Charging Party,
and the Respondent filed briefs which have been duly considered
Upon the entire record in the case, and from my observation of the witnesses
I make the following
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Edro Corporation (herein called Edro) and Anasco Gloves, Inc (herein called
Anasco), are Puerto Rican corporations engaged at Aflasco, Puerto Rico, in the
manufacture of gloves They are affiliated with other glove manufacturing enter-
prises in New York and New Hampshire and some of the manufacturing processes
involved successive operations by members of the group on the Island and in the
States During the year immediately preceding the issuance of the complaint herein,
a representative period, both Edro and Anasco imported from the States goods and
materials valued at more than $50,000, and during the same period sold and shipped
to points in the United States outside of Puerto Rico, products valued at more than
$50,0001
On the basis of the foregoing, I find that the Respondent is engaged in commerce
within the meaning of the Act and that it will effectuate the policies of the Act to
assert jurisdiction in this proceeding
II THE LABOR ORGANIZATION INVOLVED
It was stipulated at the hearing that the Union is a labor organization within the
meaning of the Act, and I so find
III THE UNFAIR LABOR PRACTICES
A The pleadings and issues
The complaint generally alleges that from on or about October 8, 1962, the
Union has been the majority representative of the Respondents production and
maintenance employees, the Union on or about the foregoing date made an un-
equivocal demand for recognition and bargaining but the Respondent has consistently
refused and has, since the foregoing date, engaged in a campaign of interference,
coercion, and restraint and although the Union filed charges of 8(a)(1) (3), and
(5) against the Respondent in an earlier proceeding,2 the 8 (a) (5) allegations were
dropped upon the Respondent's representation that if a Board conducted election were
to be held it would iefrain from any and all acts of interference, relying on these
representations the Union entered into a consent election agreement and despite the
Respondent's foregoing representations the Respondent nevertheless continued to en-
gage in acts of interference, coercion, and restraint of all of which the Union was
unaware, an election was held pursuant to this consent agreement which the Union
lost by reason of the Respondent's unfair labor practices, by its said conduct the
Respondent has engaged in conduct constituting interference, coercion, and restraint
in violation of Section 8(a)(1) of the Act, and has refused to bargain in good faith
with the Union in violation of Section 8(a)(5) and (1) of the Act
In addition to denying the foregoing allegations of the complaint, the Respondent
pleads affirmatively that the Union obtained its authorization cards from the Re
spondent's employees by means of coercion, threats, and misrepresentation and that
by signing the consent election agreement and proceeding with the election the
Union has waived any of the unfair labor practices committed before the election
and, accordingly, there can be no refusal to bargain since the Union lost the election
and that the Respondent has at all times material had a good-faith doubt as to the
Union s majority status
Accordingly, the principal issues treated hereinafter are
(1) Did the Union have an uncoerced majority on the critical dates9
(2) If so, did the Respondent undertake to destroy the Union's majority status by
acts constituting interference, coercion, and restraint?
i From the admissions of Roy Tamny the Respondent' s general manager in Puerto Rico
2 Case No 24-CA-1662 Intermediate Report, Issued June 6, 1963, Board decision affirm
ing issued October 1, 1963, as 144 NLRB 875
EDRO CORPORATION AND ANASCO GLOVES, INC 1171
(3) If so, did the Union by entering into the consent-election agreement and
proceeding with the election waive the Respondent's unfair labor practices?
(4) If not, did the Respondent actually have a good-faith doubt as to the Union's
majority status? 3
B Background-the campaign
The Union began its campaign to organize the Respondent's employees during
April 1962, and, according to Manuel Menendez, the Union's Puerto Rico regional
director, Oiganizers Lucy Figueroa, Ramonita Rivera Colon, and Natividad Perez,
were successful to the point that by early October 1962 about 90 employees out of
approximately 120 had signed authorization cards 4 The campaign was conducted
for the most part at the employees' homes where most of the cards were signed 8
On the strength of the card showing, on October 8, 1962, Menendez addressed a
letter to Roy Tamny, the general manager of Edro, informing the latter of the
majority status and requesting a meeting for the purpose of discussing a collective-
bargaining agreement On the same day, or the following day, Menendez, accom-
panied by Figueroa and Colon, visited Tamny at the latter's office in the plant at
Anasco, Puerto Rico, and informed Tamny that the Union represented a majority
of the Respondent's employees and also informed Tamny that a letter to that effect
had been mailed to him A copy of the letter was shown to Tamny at that time
Menendez also asked when they could sit down to discuss a contract Tamny an-
swered Menendez to the effect that Tamny could do nothing about the matter until
he had written the Company (evidently meaning Mr Jules Higier, the president of
Edro and of Crescendo Gloves, the parent corporation of the Respondent) in the
States, that when Tamny received a reply from the States he would inform Menendez
as to what would or could be done Menendez did not offer, nor did Tamny ask,
for the production of the authorization cards or other proof of majority On the
note that Tamny could not give Menendez a definite answer at that time, the meet-
ing ended 6
Some days later, on October 16, 1962, Menendez filed the charges in the earlier
case heretofore mentioned, alleging interference, restraint, and coercion and unlawful
refusal to bargain On October 11, 1962, before the charges were filed, Valentin
Wertheimer, the Union's assistant secretary-treasurer in New York City, called Higier
who was then at the Crescendo plant offices in Johnstown, New York, and informed
Higier that the Union had a majority and asked that the Respondent recognize and
bargain with it Higier expressed doubt as to the Union's majority which led to
further discussions on the telephone on that day Thereafter, there were personal
meetings between the two which ultimately led to an agreement to go to a consent
election upon the Respondent's representation petition and upon the assurances by
Higier to Wertheimer in New York, and Tamny to Menendez in Puerto Rico, that
the Respondent would not in any manner whatsoever interfere with the election
This agreement resulted in the withdrawal by the Union of the original 8(a)(5)
charge and an election which was held on February 4, 1963, which the Union lost
Pending the election and for the purposes of holding the consent election, the 8(a) (3 )
and (1) charges were waived but were reinstated after the election and a hearing
thereon had Also, after the election, the charges were filed in the instant case
alleging unlawful refusal to bargain
C Interference, coercion, and restraint
I The supervisory status of Patria Alvarez
Patria Alvarez oversees the work of the layoff and finishing departments and
has approximately 25 people working under her She gives them instructions on
3 Subsidiary issues are the supervisory status of one of the Respondent 's staff Patria
Alvarez, and inclusions and exclusions in the appropriate unit which was otherwise
stipulated
4 This does not include the home workers whose status is discussed below The issue as
to whether this was an uncoerced majority is also treated hereinafter
6 From the credited testimony of Lucy Figueroa and Ramonita Colon
6 From the credited testimony of Menendez, Colon, and Figueroa I do not credit
Tamny's testimony that he asked Menendez to show him the authorization cards Higier
the president of Edro, did not mention this as a reason for doubting the Union 's majority
but testified that Tamny was "quite vague" about the matter Nor did Higier's inter
company memorandum to Tamny mention this alleged refusal by Menendez to produce the
cards
1172 DECISIONS OF- NATIONAL LABOR RELATIONS BOARD
what to do and how to do it .7 Alvarez admitted that she is the supervisor of the
layoff department and checks the work- of all the girls in the different operations of
the department. There is no immediate supervisor between Alvarez and Cecilia
Vega de Bravo, the general supervisor of Edro. Moreover, Alvarez has the authority
to tell the employees to leave if 'they run out of work before the end of the day and
also has the authority to permit an ill employee to go home. Alvarez does not
operate any of the machines in the department but does direct the employees who
work at the -presses and also. the employees who do sorting, tacking, brushing, ticket
inserting , bagging, and placing ' merchandise in shipping boxes. If anyone has a
problem about the work or if the work is defective or if an employee is out of work,
Alvarez is consulted and assigns work. If a complaint comes in from the States,
Alvarez calls this to the workers' attention, shows where the mistake is and de-
monstrates how to correct it. When an employee wants permission to go home.
during the day, she speaks to Alvarez and Alvarez gives her immediate permission
to go home. When Alvarez needs an employee from another section, she requests
an, employee from a supervisor of another department who then sends an employee
to help out Alvarez.8
On the other hand, Alvarez' earnings are approximately $36 to $38 a'week based
on an hourly rate which is less than other employees in Alvarez' own department.
Nor does she participate in the hiring or discharge or laying off of any of the em-
ployees. Moreover, Alvarez punches a timeclock as do the employees who work
under her .9
However, in the prior proceeding, heretofore mentioned, the Respondent conceded
that Patria Alvarez was a supervisor. Roy Tamny, the Respondent's general man-
ager, admitted that he was in agreement with the concession when it was made and
he further admitted that there has been no change in Alvarez' duties from the time
of the incidents in the earlier proceeding to and including the time of the incidents
involved in the instant proceeding.
Accordingly, and on the record as a whole and as Alvarez was found by the Board
in the earlier proceeding to be a supervisor, I find that Patria Alvarez is a supervisor
within the meaning of the Act.
2. The events
The agreement for consent election was executed on January 24, 1963. The elec-'
tion was held on February 4, 1963. The acts which the General Counsel contends
constitute interference, coercion, and restraint allegedly occurred after the signing
of the consent-election agreement and during the week preceding the election, includ-
ing the day of the election and the day following the election.
On Friday, February 1, 1963, Patria Alvarez engaged Arisbel Maria Garcia Rami-
rez, an employee who worked in the layoff department, in a conversation. Alvarez
told the employee that she was sure of about 30 girls who worked in the department
and was certain that they were going to vote "No" in the election but that she was
not certain of Ramirez, Ana Maria Robles, Irais Violeta Mendez, and others.
Alvarez then asked Ramirez , "What about you, are you going to vote "yes' or no?',,
And Ramirez answered, "No." Then Alvarez said to Ramirez, "That is the best
thing you can do, to vote 'no' because if the Union wins we will close the factory."
Then Alvarez also stated that the Respondent had already started to distribute work
out to several other towns in the area. Alvarez also told Ramirez that they would
send work to the Philippines and that the work of laying off' and pressing would be
done over there. Later in that day Alvarez again spoke to Ramirez and told her
not to forget to vote "no.',' 10
7 From the admissions of Roy Tamny.
8 From the credited testimony of Aida Torres. This testimony was also supported by
the credited testimony of Ines Torres. I do not credit the testimony of Rose Tamny that
Alvarez does not have the authority to permit girls to go home.
8 From the credited testimony of Roy Tamny. To the extent that I credit Tamny or any
other witness only in part , I do so upon the established evidentiary rule that it is not
uncommon "to believe some and not all" of a witness' testimony. N.L.R.B. v. Univeraal
Camera Corp., 179 F. 2d 749, 745 (C.A. 2).
10 From the credited testimony of Arisbel. Maria Garcia Ramirez as substantiated by the
testimony of Ana Maria Robles and Aida Torres. I do not credit the denials of this in-
cident made by Patria Alvarez who completely denied not only what was said in the con-
versation but also that the conversation ever 'occurred.
EDRO CORPORATION AND ANASCO GLOVES, INC. 1173
On :the same day Alvarez also spoke to Ines Torres in much the same vein. Also
in the same vein Alvarez spoke to Aida Torres. Thus Alvarez told Aida Torres
that they would not see each other until Monday (the day of the election) and that
on Monday Alvarez would not be able to talk with Aida but that if the Company
won the election the employees would have an increase of $1 per hour, but that
if the Union won they would close the factory and they would take it elsewhere,
either to the Philippines or to another place.11 Also on that day Alvarez said to
Ines Torres, "Ines, today is Friday; the voting will be Monday. Think it over, for
you should vote for the Company, because if you don't vote for the Company and
you vote for the Union we will take the factory to the Philippines. However, if you
vote for the Company you will have a salary increase of $1 per hour." 12
During the week before the election Cecilia Vega de Bravo, the general supervisor
of Edro, came to the work station of Antonia Roman de Echevarria, an examiner.
Mrs. de Bravo, who is known to the people in the shop as Dona Cecilia, spoke to
Mrs. Roman de Echevarria and said to her, "Tonita, on the 4th of February there
will be an election. I am asking myself what reasons you have for being in the
Union."
While this conversation was going on, Mrs. Rose Tamny, general manager of
Anasco Gloves, approached the place where the two women were conversing and
after ascertaining Mrs. Roman de Echevarria's name said to the latter, "Tonita, on
the 4th of February there will be an election. With whom are you going to vote,
Mr. Tamny or with the Union?" Mrs. Roman de Echevarria answered, "I have not
decided, I'll decide that at the time of the election." 13
Also during the week preceding the election Rose Tammy spoke several times to
employee Ana Maria Robles. Her main theme during each of these conversations
was that if the Union won she, Rose Tamny, would not stay there and "they would
go to the Philippines." 14
Again, during the same period Mrs. Tamny spoke to employee Lydia Alvarez.15
Alvarez is a machine operator. In this conversation Mrs. Tammy told Alvarez that
soon there would be an increase for the employees and that this increase was because
of some people who were coming in June, evidently referring to June 1963.16
On the morning of the election which took place about 10:30, employee Maria
Magdelena Gonzalez Perez arrived at the plant about 7 or 7:05 a.m. and remained
in the vicinity of the entrance to the plant until it was time to report for work at 7:30.
While she was waiting Mrs. de Bravo and Mrs. Tamny arrived and Mrs. de Bravo'
said to Mrs. Gonzalez Perez, "If the Union loses you will have insurance paid whic&
will cover you while you are at home also and you won't have to pay a penny."
• Then Mrs. Tamny told Mrs. Gonzalez Perez, "Soon you will get a raise if the Union
loses." 17
11 From the credited testimony of Aida Torres.
12 From the credited testimony of Ines Torres. As stated above, I do not credit the
denials of Patria Alvarez.
"From the credited testimony of Antonia Roman de Echevarria. I credit this witness
not only upon my observation of her, but also because her testimony was corroborated by
the testimony of Leonor Salerna, a floorgirl, who was standing nearby and overheard the
conversation that ensued between Echevarria, De Bravo, and Rose Tamny. For this rea-
son and upon my observation of them, I do not credit the denials of this conversation by
either Mrs . De Bravo or Mrs. Tamny.
14 From the credited testimony of Robles.
is Not to be confused with Supervisor Patria Alvarez.
is From the credited testimony of Lydia Alvarez.
17 From the credited testimony of Gonzales Perez as corroborated by the testimony of
Francisco Ramos Santano. I do not credit the denials of Rose Tamny and Cecilia de Bravo
with regard to this incident. However, I do credit Cecilia de Bravo and Rose Tamny as to
their testimony that they sat in an automobile outside the entrance to the plant until
approximately 9:30 a.m. on the morning of the election, and then went into a shack on the
premises where employees normally had lunch. I further credit their testimony that they
remained in the shack all during that morning and until after the election and did not
speak to any of the employees during the time with the exception of the two girls who
brought coffee to them during the coffee break. Accordingly, I do not accept and do not
credit Ines Torres' testimony to the effect that at the 9:30 coffee break outside the factory,
Cecilia de Bravo and Mrs. Rose Tamny engaged several employees in conversation and that
either Rose Tamny or Mrs. de Bravo told the employees to think the union matter over
carefully ; that the employees should vote "no," and that if they did, the next day they
would have life insurance paid by the Company. The reason for discrediting this por-
0
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On 'the : morning after the election , the employees were interviewed by agents of
an insurance company with the assistance of Cecilia Vega de Bravo . This interview
consisted of the filling out of forms with information as to the employees' marital
status, age , and the usual information required on application for insurance. The
insurance agents were stationed at Cecilia Vega de Bravo's table.18
The foregoing represents the incidents which occurred before and about the time
of the election which could have affected the outcome of the same and the majority
status of the Union. There are other incidents, in addition to the foregoing, which
must be treated here because they affect the integrity of Board processes and the
Section 7 rights of the individual employees.
On the first and second days of the hearings in this proceeding, the courtroom in
which the hearing was held was literally packed with the employees of Edro and
Aiiasco. There was much milling around and, to say the least, the conduct of the
hearing was made most difficult. By reason of this, and because a motion was made
to sequester the prospective witnesses, and because counsel for the Respondent could
not state definitely which of the Respondent's employees would be used by him as
witnesses in the proceeding, all of the employees were ordered removed from the
hearing room on the second day of the hearing. They were instructed to remain
in a room in the court building adjacent to the hearing room until such time as they
were to be required to attend the hearing as witnesses. There was much turmoil and
shouting in the room where the witnesses were placed.
In the midst of this clamor, Francisco Ramos Santano, an official of another union
not connected with the Charging Union here, was called to testify as to his observa-
tion of what occurred in the courtyard of the plant on the morning of the election.
After his testimony, and before the end of the day's session, Rose Tamny approached
Maria Magdelena Gonzalez while the latter was at the water fountain in the hall out-
side of the hearing room and told her that she (Rose Tammy) intended to hit witness
Ramos because of his testimony against the Respondent. As Ramos was leaving
the courthouse that evening, Rose Tamny aimed a blow at him and although the
blow did not land, Ramos' hat fell off. It should be noted that this incident occurred
during and after the demonstrations that are set forth above which were conducted
in the presence of Supervisor Patria Alvarez and Cecilia Vega de Bravo, who did
nothing whatsoever to quiet the employees down. Although Rose Tamny denied
that she aimed a blow at Ramos and denied the conversation at the water fountain
with Maria Magdelena Gonzalez and, in fact, testified that Ramos aimed a kick at
her before she struck at him in self-defense, I find the incident occurred as set forth
hereinabove and that Tamny did in fact intend to strike Ramos.19
The second incident which must be discussed is one which involves the holding'
of a party at the plant of the Respondent immediately after the election on the day
of the election and subsequent to the announcement that the Union had lost 2i There
is no doubt and the Respondent admitted that such a party was held. Nor is there
any question that, as stipulated by the parties, the employees of Edro were paid for
the afternoon's work even though no work was performed.
3. Conclusions as to interference, coercion, and restraint
Although the situation is not without some doubt, I conclude that the events set
forth above happened substantially as related. While this conclusion is based to
some extent upon the testimony of such witnesses as Ines and Aida Torres, whose
tion of the testimony of Ines Torres is that although she testified that Teresa Carrero,
Arisbel Garcia , and Irais Mendez were among the employees present to whom Mrs. Tamny
and Mrs. de Bravo allegedly made this promise of free insurance, none of these employees
were produced by the General Counsel to substantiate Ines Torres' testimony. Moreover,
other witnesses such as Farel Gregorio Velasque were produced by the Respondent who
credibly testified that Cecilia de Bravo and Rose Tamny spoke to no employees after the
beginning of the work period on election day.
18 It should be noted that the cards that were filled out for the insurance agents on
that day were not applications for insurance but merely information from which the in-
surance company was to submit to the Respondent a proposed insurance program for the
employees. It should further be noted that this program was never accepted by the
Respondent.
18 From the credited testimony of Ramos and Gonzalez. The complaint was amended at
the hearing to allege this incident and the matter was fully Litigated.
20 The complaint was further amended 'at the hearing to include this incident. Both
parties were given ample opportunity to produce , and did produce, witnesses with regard
thereto.
EDRO CORPORATION `AND ANASCO GLOVES, 'INC. 1175
strong advocacy of the Union could have led to some -"exaggeration 'and' invention,
it-is equally true that Rose Tamny , Cecilia Vega de Bravo, and Patria Alvarez were
equally and manifestly antagonistic to the Union. Moreover, the testimony upon
which I have relied-was not only corroborated for the most part by the witnesses
whom , upon personal observation , I have found to be reliable but also whose testi-
mony was not appreciably affected upon lengthy and minutely detailed cross-
examination. -
The foregoing " conclusion is made despite the introduction into evidence of the
sworn statement of 89 employees of the Respondent to the effect that at no time
after January 20, 1963 , did any official or supervisor of the Respondent offer them
benefits in return for voting against the Union or threaten them with any sort of
reprisal if the Union were to be successful 'in the election. This statement was
accompanied by a stipulation, joined in by the General Counsel, to the effect that
if these 89 individuals were called to testify, each would testify that he or she signed
the statement voluntarily because the statement was true. I have weighed the impact
of this statement and stipulation and do not consider it 'sufficient to overbalance the
credited testimony of the witnesses upon whom I have otherwise relied. The fact that
89 out of approximately 130 employees state they were not threatened does not render
incredible the testimony of other employees that they were threatened. Moreover,
human experience is such that it can be inferred that if only a few of the employees
were threatened or given promises of benefits, the entire employee complement at the
plant would know and be affected adversely by it within a very short time. Under
these circumstances the statement that these 89 employees were not directly threat-
ened or given promises of benefit can have little probative value and may, indeed,
be irrelevant 21
Having found the events to have occurred as above , there remains for disposi-
tion their legal effect. As related above, Patria Alvarez engaged Arisbel Maria
Garcia Ramirez in a conversation on February 1, 1963, in which she asked Ramirez
how the latter was going to vote in the coming election. I conclude that this ques-
tioning, followed by the threat that if Ramirez did not vote "no" and if the Union
would win the factory would be closed down, constitutes unlawful interrogation, and
the threat itself constitutes coercion within the meaning of Section 8(a)(1) of the
Act. On the same day Alvarez repeated the threat to Ines Torres and Aida Torres.
She told Aida Torres that if the Company won the election the employees would
have an increase of a dollar per hour and that if the Union won the factory would
close and the work would be taken to the Philippines or some other place. Alvarez
made the same promise and the same threat to Ines Torres. I find that under the
circumstances herein the threat that the factory would be closed down and moved to
the Philippines if the Union won constituted interference, coercion, and restraint
within the meaning of Section 8(a)(1) of the Act. I also find that the promises of
raises of $1 per hour were unlawful promises of benefits because they were made
for the purpose of inducing the recipients of the promises to abandon their union
affiliation.
During the week before the election, as heretofore set forth, Rose Tamny asked
Antonia Roman de Echeverria whether the latter was going to vote with Mrs.
Tamny or with the Union. There is no question but that this questioning, coming
as it did from Mrs. Tamny, the manager of Aiiasco and the wife of the manager
of Edro, constituted unlawful interrogation within the meaning of the Act. I also
find that Mrs. Tamny's conversations around the same time with Ana Maria Robles
in which the theme was that if the Union won they would not stay there but that
they would go to the Philippines was also an unlawful threat. I further conclude
that Mrs. Tamny's statement to Lydia Alvarez during the week before the election
to the effect that there would be an increase for employees, coming as it did just
prior to the election, was also an unlawful promise of benefit.
The conversation that took place on the morning of the election between Maria
Magdalena Gonzalez Perez, Mrs. de Bravo, and Mrs. Tamny in which Mrs. Tamny
told Mrs. Gonzalez Perez that if the Union lost the election they would have insurance
paid for them by the Company and that Perez would soon have a"raise if the Union
should lose the election constituted unlawful promises of benefits and also constituted
interference, coercion, and restraint within the meaning of Section 8(a)(1) of the
Act. While it may be true that this insurance was never given to the employees,
nevertheless, the fact that it was promised prior to the election makes such promise
unlawful regardless of the ultimate disposition thereof.
11N.L.R.B. v. Donnelly Garment Company , 330 U.S. 219, 228-231.
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With regard to the incident between Rose Tamny and Francisco Ramos Santano
on the second day of the hearing in this proceeding, I find that Tamny's threat to
strike Ramos in the presence of one of the Respondent 's employees , and her ultimate
attempt to carry out this threat had a detrimental effect upon- the integrity of the
Board 's processes . Because the attempt occurred in the presence of employees, Mrs.
Tamny's activities constituted interference with the employees' Section. 7 'rights and
were therefore violative of Section 8(a) (1).
The last remaining alleged incident which the General Counsel contends violated
Section 8(a)(1) of , the Act is the conducting of the party on the Respondent's
premises after it was learned that the Union had lost the election. As stated above
this party took place immediately after the announcement that the Union had lost
and occupied virtually the entire balance of the working day from noon until 5 o'clock
in the afternoon. Also, as noted above, the employees, by order of Roy Tamny,
were paid for the day's work despite the fact that they did not work. The Respond-
ent contends that the party was held against its will and was spontaneously started
by a group of employees who evidently were delighted at the Union's loss.
Even crediting Rose Tamny and Cecilia Vega de Bravo to the effect that they
instructed the employees to go back to work, I am still compelled to find that, under
Board precedent, permitting the party under the circumstances here constituted a
violation of Section 8(a)(1). The Board has held that granting a day off with pay
to celebrate the defeat of a union was violative of Section 8 (a) (1) because it was
likely to have been construed by the employees not only as an expression of approval
by the employer of the union's defeat, but also a promise of future reward for con-
tinuing to reject union organization. The Board also held that the fact that both
the opponents and supporters of the union were paid did not detract from the essen-
tial coercive character of the act 22
Accordingly, I find that the granting of the afternoon's pay to the employees after
they had decided to take the day off to celebrate the Union's defeat constituted, in
and of itself, interference, coercion, and restraint, and was therefore violative of
Section 8 (a) (1) of the Act.
D. The refusal to bargain
1. The appropriate unit
It was stipulated at the hearing that the appropriate unit is the one on which
the parties agreed in the consent-election agreement. That unit is:
All production and maintenance employees employed by Edro Corporation and
Anasco Gloves, Inc., at their places of business located at Anasco, Puerto Rico, ex-
cluding all office clerical employees, homeworkers, guards, and supervisors as defined
in the Act 23
There remains for disposition the inclusion or exclusion of specific individuals. As
heretofore found, Patria Alvarez is a supervisor of Edro and she is therefore ex-
cluded from the unit. The Respondent would also exclude Leonor Salerna as a
supervisor of Edro. However, the record shows that Salerna's duties are limited
for the most part to the distribution of work among the operators and that her pay
is at the lowest scale in the plant. There is no testimony to the effect that she gives
any orders whatsoever or directs the work of any of the employees. Accordingly,
I find that Leonor Salerna is not a supervisor and I include her in the unit.
As to the employees of Aflasco, it was stipulated that two stampers and nine
examiners should be included in the unit. However, the remaining employees, aside
from the homeworkers, are the homeworker recorder, paymaster, assistant pay-
master, dispatchers, and agents. All of these individuals perform functions related
to the homeworkers and do not have interests in common with the remaining em-
ployees either in the Anasco or Edro subdivisions of the Respondent. Accordingly,
I exclude them from the unit on the basis that they have interests dissimilar from
those of the other employees.
22 Cedartown Yarn Mills, Inc., 84 NLRB 1, footnote 3.
28 At the hearing, Respondent's counsel raised the question as to whether the home-
workers should be included in the unit. Only Anasco has homeworkers and they number
close to a thousand. These employees do embroidery and other handwork on the gloves
that are turned over to Afiasco for finishing by Crescendo, the parent firm in the States.
Although some of the homeworkers bring their completed work to the Afiasco plant, many
of them do not. The record shows that the homeworkers do embroidery and other hand-
work and have no personal contact with the other employees of Afiasco and Edro. Their
work being so dissimilar from that of employees who work in the plant and their interests
so diverse , I find that they should not be included in the appropriate unit.
-EDRO CORPORATION AND ANASCO GLOVES, INC. 1177
The only other employee whose status remains for determination is Marcelina
Valentin. Valentin is listed on Aiiasco' s payroll as a supervisor . However, both
Roy and Rose Tamny testified credibly that Valentin was the head of the operation
of Aiiasco's predecessor . There is a conflict of testimony between Roy Tamny
and Rose Tammy as to what Valentin's authority is at the present time. Roy Tamny
testified that because of her experience Valentin acted as the supervisor of Aiiasco
in the absence of Rose Tamny. On the other hand, Rose Tamny testified that there
was no supervisor of Afiasco other than herself and that in her absence Cecilia Vega
de Bravo acts for her. Cecilia Vega de Bravo, on the other hand, denied that she
had any supervisory duties with regard to Aiiasco' s operations .24 On the record as
a whole, and because of the discrepancy between Rose Tamny's testimony and the
testimony of Roy Tamny and because I find that Roy Tamny is a more reliable wit-
ness generally than is Rose Tamny, and by reason of Cecilia Vega de Bravo's denial
that she had any supervisory authority over Aflasco's operations, I find that Marcelina
Valentin is a supervisor within the meaning of the Act and, therefore, exclude her
from the unit.
2. The majority status
Ramonita Rivera Colon, a union organizer , testified that she persuaded 19 of the
Respondent's employees to sign cards. At the hearing the 19 cards were presented to
her and she testified that each of the cards was signed in her presence on the date
appearing on the card and that after she had the cards she turned them over to the
Union's regional director, Manuel Menendez. I credit her testimony in this respect.
Lucy Figueroa testified that 54 cards were signed in her presence and that each of
the cards was signed on the date appearing thereon. All of the cards mentioned by
both Rivera Colon and Figueroa were signed prior to October 8. Figueroa also
testified as to one card which was dated September 30, 1961, and stated that the
card should have read "September 30, 1962," and that the date appearing as 1961
was in error. I credit Figueroa's testimony. Figueroa also identified nine cards
which were undated. However, in each case she testified as to where and when
each card was signed, and the circumstances under which each was signed. She
further testified that they were all signed during the Union's organizational drive
from June through September 1962. I also credit this portion of Figueroa's
testimony.
Totaling the cards thus identified, I find that there were 83 cards signed on or
before October 8, 1962. Each card bore the signature of an individual who was
actively employed by the Respondent (either Edro or Aiiasco) during the week
ending October 12, 1962. During that period of time there were 143 employees.
Thus the Union had cards for a majority of the employees.
One Respondent witness, Victoria Montalvo, testified at the hearing that the card
which bore her name was not signed by her. However, she also denied signing docu-
ments which she later, on redirect examination , admitted that she had signed but
which on cross-examination she denied she had signed. She was completely unable
to explain the inherent inconsistency of her testimony. Accordingly, I do not credit
Montalvo's testimony that she did not sign the card. However, it does not matter if
Montalvo's card is rejected because, in any event, the Union would still have had
a majority as of October 8, 1962.25
The only other issue raised by the Respondent with regard to the authenticity or
the probative value of the cards as evidence of the Union's majority status as of
October 8, 1962, is with regard to the wording on the cards themselves. The cards
bore the legend,
2* Aida Torres testified that on her observation Marcelina Valentin was a supervisor
and that she had seen Marcelina and Patria Alvarez shifting employees between them as
needed. Also, Marla Magdelena Gonzales Perez testified that Valentin was a supervisor.
However, this was merely in conclusionary language.
Zs Moreover, with regard to Montalvo's card, Lucy Figueroa credibly testified as to the
circumstances and the surroundings under which Montalvo's card was signed. I credit
Figueroa and find that she was more a reliable witness in all respects than was Montalvo,
whose cross-examination revealed a great deal of hesitancy, inconsistency, and weakness.
I also have not taken into consideration eight cards which were properly identified by
Figueroa but which bore dates after October 8, 1962. Nor do I use in computing the
majority the card of Ana Maria Robles who was unable to identify the card bearing her
signature at the hearing. Although I believe that Robles did sign this card, I believe that
she was too confused at the hearing to properly identify it.
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Those joining now will never have to make an initial payment Those who
wait until the contract is signed will have to pay the regular initiation fees
No one will have to pay dues until the Union obtains a contract at your shop,
which shall mean better salaries, better working conditions and security on the
job
No initiation fees, no dues
The Respondent contends that the waiving of initiation fees as set forth in the above-
quoted sections constitutes a buying of votes and is therefore improper and that a
reliance may not be made thereon for the purpose of computing the majority status
of the Union
However, the Board has but recently decided in a case involving exactly the same
card and the same union involved in the instant case 26 that waiver or reduction of
initiation fees during a campaign to obtain authorization cards is not the type of
benefit which improperly affects an employees decision to sign or not to sign such
a card, and the effect on employees of a waiver of initiation fees is too speculative
to be viewed as a coercive influence under the circumstances such as are involved in
the case at bar 27
Accordingly I find that as of October 8, 1962, the Union did represent a majority
of the Respondent's employees for the purposes of collective bargaining
3 The events leading to the refusal to bargain
As heretofore alluded to, after Menendez made the original demand upon Roy
Tamny on October 8 or 9, Tamny referred the matter to his superior, Jules Higier, the
president of Edro and also the head of Crescendo, the parent corporation in the
States This led to a series of conversations and meetings between Higier and
Valentin Wertheimer, the Union's assistant general secretary-treasurer
On October 11, 1962, Wertheimer spoke on the telephone to Higier who was then
in Johnstown, New York, at the offices of the Crescendo Glove Company, informed
Higier that the Union iepresented a majority of the employees of Respondent, and
requested recognition for the Union Higier answered that he did not believe that
the Union represented a majority, in fact, that the Union represented no more than
two or three employees in the Anasco plant He said that he had been so informed
by his plant manager, Roy Tamny Wertheimer expressed his willingness to dem
onstrate the majority status through some mutually acceptable neutral third person
who would conduct an appropriate card check of the authorization cards received
from the employees of the Company Higier refused and when Wertheimer sug-
gested then that the parties go to a consent election under Board auspices Higier again
refused At that point, Wertheimer suggested that they make an appointment to
meet face to face After several attempts to get together the parties finally had a
meeting at the Crescendo plant in Johnstown Present were Wertheimer Higier,
and John Sutliff, the district manager for the Union in the Gloversville area
Wertheimer renewed his request for recognition and again suggested a card check by
a mutually acceptable , neutral third party and if that was not acceptable that the
Respondent submit to a consent election Higier informed Sutliff and Wertheimer
that he would not consider going before the Board with an election and repeated his
belief that the Union had no real representative interest in the plant He also
stated that the Union had engaged in bribing, coercion, and forgery of cards and
that any cards that the Union might have were totally worthless
During this discussion Higier also stated that if the Union continued to press its
request for recognition he would see to it that no further work would be shipped by
Crescendo to Edro and Anasco and that the plant would be closed and that the work
now being done in those plants would be sent to the Philippines He stated that he
simply did not want a union shop in Puerto Rico He further stated that if the Union
should succeed through the National Labor Relations Board in obtaining certification,
the Union could talk until "the cows came home" but he would not give one tenth
of a cent consideration to the Union's majority and if the Union wanted a strike or
do anything else that it felt like doing it could do so He further stated that he
26 Gorbea Perez & Morell S en d 142 NLRB 475
27 The Respondent also contended that the employeeq were misled into signing the cards
by the representations of Lucy Figueroa to the effect that the Union already had a
majority and that the individual involved might just as well go along with the majority
Figueroa credibly testified that she told this only to employees after the Union actually
did have a majority of the employees signed up Inasmuch as I have credited Figueroa
in other matters I also credit her in this instance
EDRO CORPORATION AND A1vASCO;.GLOVES, `INC:" 1179
would sit down if the Board forced him, to but.that the negotiations would not get
anywhere and that all the Union would be able 'to. do would be to strike. The
meeting ended on that note.
The next meeting of importance here was one that took place January 12 after
the previous refusal-to-bargain charge had been filed. . This meeting also took place
in Higier's office in Johnstown, New York. , Present again were Sutliff, Jules Higier,
his son, Ross Higier, and a Mr. Gary, the plant manager for Crescendo Gloves in
Johnstown. Wertheimer suggested settlement of the earlier charges by recognition
by the Company of the Union. Higier then countered with.a suggestion that perhaps
the matter could be settled by proceeding to a consent election. Higier stated that
he wanted to settle the case although he did not want a union in Puerto Rico. Fi-
nally, Wertheimer told Higier that in view of what had passed between Edro, Anasco,
and the Union, the Union would go to a consent election only if the Respondent
would give the Union an ironclad assurance that such an election would be fair
and one where employees would be able to make a free choice without pressure of
any sort. Finally, after several further discussions on the telephone following that
meeting, on January 22 Wertheimer informed Higier that the Union would consider
a consent election if the necessary assurance would be obtained from the Respondent
and if the agreement could be worked out in Puerto Rico by Higier's representatives
and the Union's representatives. Higier assured Wertheimer that he wanted to see
a completely fair election and assured Wertheimer that his Puerto Rican plant
manager, Roy Tamny, was to make only one speech before the election and that in
this speech he would tell the employees that Crescendo, the parent concern, had for
many years had a collective-bargaining relationship with Amalgamated Clothing
Workers and that if the Union won the election he would be happy to sit down and
negotiate a contract; that no employee would have to be concerned about how to
vote because the employees would have the right to express their opinion freely.
Upon these assurances from Higier, Wertheimer called Menendez, the Union's
regional director in Puerto Rico, and informed him of what had occurred. There-
upon Menendez met with representatives of the Company in Puerto Rico and worked
out a consent agreement. In making this agreement, the Union had to promise and
did promise, and, in fact, did withdraw the original refusal-to-bargain charges on the
assurances that there would be a truly fair election without interference. The other
charges-the 8(a)(3) and 8(a)(1) charges-were waived for the purposes of the
consent election and a hearing thereon was put over until the election was held. At
the time that the agreement was reached, Higier further stated and assured
Wertheimer that none of the supervisory employees in the Anasco or Edro plant
would in any way interfere with the conduct of the election 28
As heretofore set forth, on the Friday before the election both Tamny and
Menendez gave short speeches to the employees, none of which has been alleged
herein to have interfered with the election in any manner whatsoever. However,
it was at or about the time that these speeches were given that much of the conduct,
which I have heretofore found to constitute interference, coercion, and restraint,
occurred. As noted above also, the Union lost the election.
Both Wertheimer and Menendez credibly testified that they were completely un-
aware either on Friday afternoon at the time Menendez was making his speech to the
employees or on the following Monday morning before and during the election, of
the activity that I have heretofore found to constitute interference, coercion, and
restraint.
4. Concluding findings with regard to the refusal to bargain
The Union and the General Counsel contend that the unlawfulness of the Re-
spondent's refusal to bargain is evidenced by Jules Higier's adamancy in refusing, in
the first instance, to recognize the Union when there existed no real basis for doubt
as to the Union's majority status and Higier's initial refusal to submit the majority
question to a third party card check or a Board-conducted election. They further
point to Higier's changed attitude when he was confronted with a possible bargaining
21 From the credited testimony of Valentin Wertheimer. Much of this testimony was not
directly denied by Higier but was, in fact, corroborated to a certain extent by Higier's
testimony. Where there is conflict in the testimony I have, upon my observation of the
two individuals as they testified, credited Wertheimer. With regard to the corroborated
part, Higier himself stated on the witness stand that he did not want the Amalgamated,
the Charging Union herein, to represent his employees in Puerto Rico because he felt that
a third union, in addition to the two unions that he had already In his plant in the
States, would make operations very confusing and rather cumbersome for him.
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
order following the Union's charges and the General Counsel's complaint alleging
interference, coercion and restraint , discriminatory discharge, and unlawful refusal
to bargain . Then, he not only indicated a willingness to go to a consent Board
election but ultimately caused a petition for such election to be filed. The General
Counsel and the Union also note that at the time of the execution of the consent-
election agreement , the Union withdrew the refusal -to-bargain charges upon the
representation by the Respondent 's officials that none of the supervisors of the Re-
spondent would in any manner whatsoever interfere with the election . But the
working day before the election and even on the morning of the day of the election,
these same officials engaged in the activity heretofore found to constitute interfer-
ence , coercion , and restraint . The General Counsel and Union argue that because
the inducements by Higier and other representatives of the Respondent which caused
the Union to withdraw its refusal -to-bargain charges were followed by the unlawful
conduct heretofore found, it is clear that the election was utilized as the vehicle by
which the Respondent sought to escape its duty to bargain. Thus, by its insistence
upon the election and its ensuing unlawful activity, the Respondent sought to insure
itself against the Union's ability to establish itself as the bargain representative of
the Respondent's employees . Because of this, the General Counsel and the Union
assert, the Board should not allow to prevail the Respondent' s argument that because
of the Union's joining in the consent-election agreement and participating in the
election , the Union should not now be permitted to establish its majority status by
the authorization cards.
The Respondent maintains that its actions were consistent with its asserted good-
faith doubt of the Union's majority status; that, in fact, the Union -never had an
uncoerced majority but that, if it did, it lost such majority through no wrongdoing
on the part of the Respondent; that, in any event, the Union having chosen to go
ahead with the election and having lost, it cannot now establish its majority on the
basis of the authorization cards.
I have heretofore disposed of the Respondent's contention that the Union did not
have an uncoerced majority and have found that, in fact, such majority existed on
October 8, 1962. It must be presumed that this majority status continued to exist
when Higier initially refused to recognize the Union. Then, at almost the same
time that Higier in New York expressed doubt as to the Union's majority, the
Respondent's officials and supervisors in Puerto Rico were engaging in the conduct
found by the Board in the earlier case involving the Respondent to constitute inter-
ference, coercion, and restraint.29
This conduct, when considered in the light of Higier's manifest antagonism toward
the Union and his expressed desire not to have a deal with it, throws doubt on
Higier's other declaration that he would bargain with the Union if the latter could
establish its majority. In any event, Higier's statements and representations to
Wertheimer, and the almost simultaneous unlawful conduct of the Respondent's
Puerto Rico officials' and supervisors, establish an attitude and course of conduct
which although not relied on in this case as the basis for a finding, nevertheless
cannot be ignored. The post-consent-election agreement conduct must be considered
in the light of this earlier conduct.
Before considering the post-consent-election agreement conduct in its relation to
the question of whether the Respondent entertained a good-faith doubt as to the
Union's majority status, or refused unlawfully to bargain, the Respondent's conten-
tion that the loss of majority cannot be attributed to unlawful acts of the Respond-
ent must be considered. In support of this contention, the Respondent relies on the
stipulated fact that 89 employees had signed statements after the election that they
had received no offers of benefits before the election and that no threats had been
made to them by the Respondent. The stipulation also stated that had these 89 em-
ployees testified they would have testified that they signed the statements voluntarily
because the contents thereof were true. However, I have heretofore held that under
all the circumstances of this case these statements were unreliable as evidence of
the true facts and I do not consider them reliable for the purpose of showing that
the majority status of the Union was lost without the Respondent being instrumental
in such loss.30
The last contention of the Respondent, as set forth in its answer to the complaint,
is that the Union having agreed to participate in the Board-conducted election and
29 Edro Corporation , .4nasco Gloves, Inc., 144 NLRB 875.
11 Cf. N.L.R.B. v. Vulcan Forging Company, 188 F. 2d 927 (C.A. 6).
EDRO CORPORATION AND ANASCO GLOVES, INC 1181
having lost, it cannot now rely on the designation card as proof of majority and,
therefore, cannot rely on preelection conduct of the Respondent to establish lack of
good-faith doubt 31
It is basic, and the Board held in Joy Silk Mills, Inc ,32 that an employer may in
good faith insist upon a Board election as proof of a union's majority but that it
unlawfully refuses to bargain if its insistence on such election is motivated not by
any bona fide doubt as to a union s majority, but rather by a rejection of the collective-
bargaining principle or by a desire to gain time within which to undermine the Union
The Respondents initial refusal to recognize and bargain with the Union must be
examined in the light of all other relevant facts of the case including the conduct of
the Respondent, the sequence of the events, and the time lapse between the refusal
and the unlawful conduct
In the instant case, the demand was made on October 8 or 9, 1962, and the unfair
labor practices alleged as constituting interference, coercion, and restraint in this
proceeding occurred during the week preceding the election and on February 4, 1962,
the day of the election Thus there would seem to have been an hiatus of some
3 months between the demand and the unfair labor practices But the demand was
renewed and repeated by Wertheimer, the Unions' officer, in New York, to the
Respondent's president, Higier, on several occasions during October and Novem-
ber 1962, and, at the same time, the acts of the Respondent which the Board has
heretofore found to be violations in the earlier case occurred during that period
Thus, there was an almost continuous series of violations of the employees' Section 7
rights from the date of the original demand to the date of the election Under
these circumstances, I conclude and find that Higier's repeated refusals to bargain
with and recognize the Union were not motivated by a good-faith doubt as to the
Union's majority but were, on the contrary, designed to gain tune to destroy the
Union's majority 33
In coming to the foregoing conclusion, I have rejected the Respondent's conten-
tion that because the Union joined in the consent election it cannot now be heard
to complain of any preelection Respondent conduct inasmuch as the union designa-
tion cards are no longer reliable, the Union having lost the election As promulgated
by the Board, the decision in the case of Louis Aiello, et at, d/b/a Aiello Dairy
Farms 34 held, in substance, that a union which chooses to go forward and participate
in a consent election, knowing of antecedent acts which could constitute the basis
for the charge of unlawful refusal to bargain, waives its rights to bring refusal-to-
bargain charges after the lost election because it selects to demonstrate its majority
in the election, thereby cutting off the presumption of continuing majority At first
blush, this waiver theory would seem to be applicable to the facts of the case at bar
However, in the Aiello Dairy case, the Board specifically found that the Union had
knowledge of unfair labor practices before the election whereas in the instant case
I have found that the Union had no knowledge of such activity from the date of
the consent agreement until after the election Furthermore, the interference,
coercion, and restraint occurred such a short time before the election, it is very
doubtful whether the election could have been canceled The Board, in the Aiello
Dairy case , foresaw such contingency and expressed doubts that under such cir-
cumstances its waiver theory would be applicable
On the other hand, the Board in one case since Aiello Dairy,35 seems to have come
to grips with facts somewhat similar to those of the instant case and, without alluding
to Aiello Dairy, found upon charges filed after a consent election, where there had
been preelection Section 7 violations, that coercive conduct prior to the consent
election and similar conduct occurring after the agreement and before the election
could be assessed in totality to find that the employer had unlawfully refused to
bargain within the doctrine of the Joy Silk Mills case 3e
ai The Respondent does not mention this contention in its brief But it being in the
answer, I cannot deem it abandoned without specific assent from the Respondent More-
over this aspect of the case was argued at the hearing
3' 85 NLRB 1268
"In so concluding I have also taken into consideration Higier's statements to Wer
theimer that be would close the Puerto Rico plant and would not come to an agreement
with the Union even were the Union to be certified
84110 NLRB 1365
as Trader Oil Company of Houston, 119 NLRB 746
30 Joy Silk Mille, Inc, supra
1182 DECISIONS -OF> NATIONAL LABOR RELATIONS BOARD
. In the. case, at, bar the coercive conduct commenced soon after the original re-
quest to bargain on October 8,. 1962, and continued at various times to the day of
the election. The Union, aware of the conduct occurring in the period before the
consent-election agreement, filed. 8(a)(1); (3); and (5) charges. But, on the rep-
resentations of the Respondent that there would be no further coercive conduct,
the Union was induced to sign a consent-election agreement and drop the 8(a)(5)
charges. Thus, by reason of the Respondent's representations, the Union was lulled.
into a sense of security out of which it was awakened only after it lost the election
and for the first time learned of. the post-consent-election agreement conduct of the
Respondent. These are circumstances under which I.believe the Board would carve
out an exception to the Aiello Dairy doctrine.
Accordingly, I find that the Respondent unlawfully refused to bargain within the
meaning of Section 8(a) (5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The conduct of the Respondent set forth in section III, above, occurring in con-
nection with the operations described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and
tends to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY .
It having been found that Respondent has engaged in and continues to engage in
certain unfair labor practices, it will be recommended that the Board issue an order,
requiring that it cease and desist therefrom and take certain affirmative action in-
cluding the posting of appropriate notices designed to effectuate the policies of the
Act, as amended.
It having been found that the Respondent, by interrogation, threats, and promises
of benefits interfered with, restrained, and coerced its employees in violation of Sec-
tion 8(a)(1) of the Act, I shall recommend that the Respondent cease and desist
therefrom.
It having been further found that the Respondent refused to bargain collectively
with the Union, thereby interfering with, restraining, and coercing its employees,
I shall recommend that the Respondent cease and desist therefrom and also upon
request bargain collectively with the Union with respect to wages, hours, and other
terms and conditions of employment and embody in a signed agreement any under-
standing reached.
In view of the nature of the unfair labor practices committed, the commission of
similar and other unfair labor practices reasonably may be anticipated. I shall
therefore recommend that the Respondent be ordered to cease and desist from in any
manner infringing upon rights guaranteed to its employees by Section 7 of the Act.
Upon the basis of - the foregoing., findings of fact and upon the entire ,record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Edro Corporation and Afiasco Gloves, Inc., are engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Amalgamated Clothing Workers of America, AFL-CIO, is a labor organization
as defined in Section 2 (5) of the Act.
3. By threatening its employees. with, the closing down of the plant and making
promises of benefits to them and interrogating them concerning union affiliations
and activities, thereby interfering with, restraining, and coercing its employees -in
the exercise of rights guaranteed in Section 7 of the Act, Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8(a)(1).
of the Act.
4. All production andamaintenance employees employed by Edro Corporation and
Aiiasco Gloves, Inc., at their places of business located at Aflasco, Puerto Rico,
excluding all office clerical employees , homeworkers, guards, and supervisors defined
in the Act, constitute a unit appropriate for the purposes of bargaining within the
meaning of Section 9(b) of the Act.
5. At all times material herein the Union above named has been, and now is, the
exclusive representative of all the employees in the appropriate unit for the purpose
of collective bargaining within the meaning of Section 9(a) of the Act.
6. By refusing .to bargain collectively with the Union. above named as exclusive
bargaining representative of its employees in the appropriate unit , the Respondent
has engaged in and is engaging in unfair labor practices within the meaning of Sec-
tion 8 () (5) and (1) of the Act.
EDRO CORPORATION AND ANASCO GLOVES, INC 1183
7 The aforesaid unfair labor practices are unfair labor practices affecting
commerce
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in this proceeding, I recommend that Edro Corporation and
Afiasco Gloves, Inc, their officers, agents, successors , and assigns, shall
1 Cease and desist from
(a) Threatening their employees with removal of the plant if the Union should
win the election, interrogating their employees with regard to their union activities
and affiliation, and making promises of benefits for the purpose of discouraging
membership in the Union
(b) Refusing to bargain collectively with Amalgamated Clothing Workers of
America, AFL-CIO, as the exclusive representative of all their employees in the
following appropriate unit
All production and maintenance employees employed by Edro Corporation and
Afiasco Gloves, Inc, at their places of business located at Aflasco, Puerto Rico,
excluding all office clerical employees, homeworkers, guards, and supervisors as
defined in the Act
(c) In any other manner interfering with, restraining, or coercing employees in the
exercise of the right to self-organization, to form labor organizations, to join or
assist the above-named union , or any other labor organization, to engage in other
concerted activities for the purposes of collective bargaining or other mutual aid or
protection or to refrain from any or all such activities except to the extent that such
right may be affected by an agreement requiring membership in a labor organization
as a condition of employment as authorized in Section 8(a)(3) of the Act
2 Take the following affirmative action which it is found will effectuate the policies
of the Act
(a) Upon request bargain collectively with Amalgamated Clothing Workers of
America, AFL-CIO, as the exclusive representative of all their employees in the
aforesaid unit and, if an understanding is reached, embody such understanding in a
signed agreement
(b) Post at their places of business in Afiasco, Puerto Rico, where the unfair
labor practices were committed, copies of the attached notice marked "Appendix " 37
Copies of the notice, to be furnished by the Regional Director for the Twenty-fourth
Region, shall be posted, immediately upon their receipt, after being duly signed by a
representative of each of the Companies When posted, they shall remain posted
for 60 consecutive days thereafter in conspicuous places , including all places where
notices to employees are customarily posted Reasonable steps shall be taken by
Respondent to insure that these notices are not altered, defaced or covered by any
other material
(c) File with the Regional Director for the Twenty-fourth Region, within 20 days
of the date of the service of this Trial Examiner's Decision and Recommended
Order, a written statement setting forth the manner and form in which it has com-
plied with these recommendations 38
37 If this Recommended Order is adopted by the Board , the words "a Decision and
Order" shall be substituted for the words "the Recommended Order of a Trial Examiner"
in the notice If the Board's Order is enforced by a decree of a United States Court of
Appeals the notice will be further amended by the substitution of the words "a Decree of
the United States Court of Appeals, Enforcing an Order' for the words "a Decision and
Order "
88 If this Recommended Order is adopted by the Board , this provision shall be modified
to read "Notify the Regional Director for the Twenty fourth Region, in writing, within
10 days from the date of this Order, what steps the Respondent has taken to comply
herewith '
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that
WE WILL NOT interrogate our employees concerning their union activities in a
manner constituting interference, restraint, and coercion in violation of Section
8(a) (1) of the Act
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT threaten our employees with closing down the plant in the event
the union is selected as the bargaining representative of our employees.
WE WILL NOT make any promises of benefit to any of our employees in a
manner constituting interference , restraint , and coercion in violation of Section
8(a)(1) of the Act.
WE WILL upon request bargain collectively with Amalgamated Clothing
Workers of America, AFL-CIO, as the exclusive bargaining agent of the em-
ployees in the appropriate unit with respect to rates of pay, wages, hours of
employment , or other conditions of employment, and if an understanding is
reached embody such understanding in a signed agreement . The appropriate
unit is:
All production and maintenance employees employed by Edro Corpora-
tion and Aiiasco Gloves, Inc., at their places of business located at
Anasco, Puerto Rico, excluding all office clerical employees, homeworkers,
guards, and supervisors as defined in the Act.
WE WILL NOT in any other manner interfere with, restrain , or coerce our em-
ployees in the exercise of their rights to self-organization, to form, join, or assist
Amalgamated Clothing Workers of America, AFL-CIO, or any other labor
organization , to bargain collectively through representatives of their own, choos-
ing, and to engage in other concerted activities for the purposes of collective
bargaining or other mutual aid or protection , or to refrain from any or all
such activities.
All our employees are free to become , remain , or refrain from becoming or re-
maining members of any labor organization , except as that right may be affected by
an agreement requiring membership in a labor organization as a condition of em-
ployment , as authorized in Section 8(a) (3) of the Act, as amended.
EDRO CORPORATION,
Employer.
Dated------------------- By------------------------------------------
(Representative ) (Title)
MASCO GLOVES, INC.,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Post
Office Box 11007, Fernandez Juncos Station, Santurce, Puerto Rico, Telephone No.
724-7171, if they have any question concerning this notice or compliance with its
provisions.
Charles E. Honaker and Chauffeurs , Teamsters and Helpers
Local Union No. 175, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America. Case No. 9-CA-P2890. June 29, 1964
DECISION AND ORDER
On January 8, 1964, Trial Examiner James V. Constantine issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices within the meaning of the Act and recommending that it
cease and desist therefrom and take certain affirmative action, as set
forth in the attached Decision. Thereafter, both the General Counsel
and the Respondent filed exceptions to the Decision and briefs in sup-
147 NLRB No. 145.