Cayey Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Aug 6, 1952

100 N.L.R.B. 494 (N.L.R.B. 1952)

494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Employer in the unit herein found appropriate by the Board,
as their representative for the purposes of collective bargaining and
that, pursuant to Section 9 (a) of the Act, the said organization is the
exclusive representative of all employees in such unit, for the purposes
of collective bargaining, with respect to rates of pay, wages, hours of
employment, and other conditions of employment.
CAYEY MANUFACTURING Co., INC. and CONFEDERACION GENERAL DR
TRABAJADORES DE PUERTO RICO
CAYEY MANUFACTURING CO., INC. and CONFEDERACION GENERAL DE
TRABAJADORES DE PUERTO Rico (CIO). Cases Nos. 24-CA-79 and
24-RC-44. August 6,1950
Decision and Order
On January 15, 1952, Trial Examiner Ralph Winkler 1 issued his
Intermediate Report in the above-entitled consolidated proceedings
finding that the Respondent had engaged in and was engaging in
certain unfair labor practices, and recommending that it cease and
desist therefrom and take certain affirmative action, as set forth in the
copy of the Intermediate Report attached hereto. He also recom-
mended that the election held on October 17, 1950, among the Re-
spondent's employees be set aside. The Trial Examiner also found
that the Respondent had not engaged in certain other alleged unfair
labor practices and recommended that the complaint be dismissed as
to them. Thereafter, the General Counsel filed exceptions and a sup-
porting brief.
The Board 2 has reviewed the rulings of Trial Examiner MacCullen
made at the hearing, and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief and the entire record in the
case and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the following modification :
The Trial Examiner found that Supervisor Roquet by standing at a
window in the Respondent's plant and taking notes during a rally of
the Union held on a public street fronting on the Respondent's prem-
ises did not engage in unlawful surveillance. We do not agree.
'As Trial Examiner MacCullen, before whom the hearing was held, had become unavail-
able for further participation in the case, the Chief Trial Examiner designated Mr. Winkler
to prepare the Intermediate Report in the above-entitled consolidated proceedings.
2 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 Houston, Murdock, and Styles].
100 NLRJ3 No. 83.
CAYEY MANUFACTURING CO., INC. 495
Although called as a witness for the Respondent, Roquet was not
questioned about the incident, nor did the Respondent offer any ex-
planation for Roquet's behavior. The absence of such explanation
coupled with Roquet's record of supplying her Employer with the
notes on a prior union meeting raises the reasonable inference that
Roquet was standing at the plant window and taking notes for the
purpose of conveying to her employer such information about the
rally and the employees participating in it as she could gather from
her vantage point. This is conduct which normally would constitute
unlawful surveillance. It is argued, however, that as the union rally'
took place on a public thoroughfare and apparently therefore was
not intended to be a private union affair, the Respondent could lawfully
observe such open proceeding and make a written record of what it
saw. We do not agree. The vice of the Respondent's conduct in the
instant case , as in all cases of surveillance , lies in its restraining and
coercive effect upon the employees' statutory right to engage in union
activities. Where as here, a supervisor not only observes the union
rally, but also makes notes of the proceeding, the employees would be
'justified in assuming that it is being done for the purpose of subjecting
them to economic reprisals for participating in the union rally .3
Under the circumstances, we find, contrary to the Trial Examiner,
that by the above conduct of Roquet the Respondent has interfered
with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Actin violation of Section 8 (a) (1) of
the Act.
Order
Upon the entire record in the case and pursuant to Section 10 (c) of
the National Labor Relations Act, as amended, the National Labor
8 N. L. R. B. v. Vermont Furniture Corporation, 82 NLRB 408 enfd 182 F. 2d 842
(C. A. 2) where no plausible explanation was offered by the Respondent for the
presence of management representatives in a lobby of a hotel where a union meeting
was held. In affirming the Board 's finding that the presence of these men was unjustifiable
surveillance the circuit court said : "Their simultaneous presence in the neighborhood of
the union meeting seems to have had no real excuse and, we think, justifiably held to
have constituted an unfair labor practice . It is hard to imagine that these men just hap-
pened to be at that place at the same time and that their object was not to discover
,what employees were active in the union , rather to enjoy each other's society."
N. L. R. B V. Collins t Aikman, Corporation , 146 F. 2d 454 ( C. A 4), enfg. 55 NLRB
735 where the company 's officials began to frequent a village drug store where the union
organizers were conducting their union activities . In affirming the Board 's finding of
surveillance , the court said:
Nor does it avail Collins to assert that whatever surveillance existed was carried on
openly and not surreptitiously. Any real surveillance by the employer over the union
activities of employees whether frankly open or carefully concealed , falls under
the prohibitions of the Act.
Of. The Solomon Company at at., 84 NLRB 226 , where the Board held that the presence
of management representatives in a public cafe during an organizational meeting was not
a surveillance In the absence of showing that it was part of a plan of surveillance ; and
Salant t Salant Incorporated, 92 NLRB 417 , 447 where the supervisors involved denied
that they were engaged in surveillance of the meeting held In front of the plant and tes-
tified that it was customary for them to look out of the plant's windows during the lunch
time when the meeting was held.
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Board hereby orders that the Respondent, Cayey Manufac-
turing Co., Inc., Cayey, Puerto Rico, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from :
(a) Threatening to move or shut down or change operations because
of the organizational efforts or election success of Confederacion Gen-
eral de Trabajadores de Puerto Rico, or of any other labor organ-
ization.
(b) Warning employees that their opportunities for employment
depend on how they vote in elections for a bargaining representative.
(c) Engaging in surveillance of union activities of its employees.
(d) In any other manner, interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist the aforesaid, or any other
labor organization, to bargain collectively through representatives of
their own choosing, to engage in concerted activities for the purposes
of collective bargaining or other mutual aid or protection, or to refrain
from any or all of such activities, except to the extent that such rights
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 the Board finds will
effectuate the policies of the Act :
(a) Post at its plant at Cayey, Puerto Rico, copies in English and
Spanish of the notice attached hereto as Appendix A.4 Copies of said
notice, to be furnished by the Regional Director for the Twenty-fourth
Region, shall, after being duly signed by the Respondent, be posted
immediately upon receipt thereof and be maintained by it for sixty
(60) consecutive days thereafter in conspicuous places, including all
places where notices to employees are customarily posted. The Re-
spondent shall take reasonable steps to insure that such notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director for the Twenty-fourth Region
in writing, within ten (10) days from the date of receipt of this Order,
what steps the Respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint be dismissed insofar
as it alleges unfair labor practices other than those in which the Board
has found the Respondent to have engaged.
IT IS FURTHER ORDERED that the election of October 17, 1950, be set
aside.
* 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."
CAYEY MANUFACTURING CO., INC. 497
Appendix
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, we hereby notify our employees that :
WE WILL NOT threaten to move or shut down or change opera-
tions because of the organizational efforts of CONFEDERAVION
GENERAL DE TRABAJADORES DE PUERTO Rico, or any other labor
organization.
WE WILL NOT warn our employees that their opportunities for
employment depend on how they vote in elections for a bargaining
representative.
WE WILL NOT engage in surveillance of union activities of our
employees.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organi-
zation, to form labor organizations, to join or assist CoNFn)-
ERACION GENERAL DE TRABAJADORES DE PUERTO RICO, or any other
labor organization, to bargain collectively through representa-
tives of their own choosing, to engage in concerted activities for
the purposes of collective bargaining or other mutual aid or pro-
tection, 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.
CAYEY MANUFACTURING CO., INC.,
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.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon charges duly filed in Case No. 24-CA-79 by Confederacion General de
Trabajadores de Puerto Rico, herein called the Union, the General Counsel for
the National Labor Relations Board by the Regional Director for the Twenty-
fourth Region (Santurce, Puerto Rico), issued a complaint dated August 9, 1951,
against Cayey Manufacturing Co., Inc., herein called the Respondent, alleging
that the Respondent discriminatorily refused to hire two employees and otherwise
engaged in other specified conduct in violation of Section 8 (a) (1) and (3) and
Section 2 (6) and (7) of the Labor Management Relations Act, 1947, 61 Stat. 136,
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
herein called the Act. Copies of the complaint and charges were duly served
upon the Respondent, whereupon the Respondent filed an answer denying the
commission of the unfair labor practices.
On August 6, 1951, the Board directed that a hearing be held on objections
filed by the Union to the conduct of an election in Case No. 24-RC-44. And on
August 9, 1951, the present complaint and representation cases were consolidated
by direction of the Regional Director, and pursuant to notice a hearing in the
consolidated matter was held from September 4 through September 7, 1951, at
Cayey, Puerto Rico, before Allen MacCullen, a Trial Examiner designated to
hear the matter. The General Counsel and Respondent were represented by
counsel and participated in the hearing with full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bearing on the
issues.
The parties were granted opportunity to present oral argument before Trial
Examiner MacCullen, and they were also granted opportunity to file briefs and
proposed findings of fact and conclusions of law. The Respondent has filed a
,brief which has been duly considered by the undersigned.
After the hearing was closed, Trial Examiner MacCullen became unavailable
for further participation in this matter and on November 7, 1951, the under-
signed was duly designated to act as Trial Examiner in this matter and, par-
ticularly, to prepare and issue an Intermediate Report.
Trial Examiner MacCullen reserved ruling on a motion of the Respondent
to dismiss the afore-mentioned objections "because of failure to comply with
Section 203.61 of the Board's Rules and Regulations." The motion does not,
and the record otherwise does not, specify the respects in which the objections
failed to comply with the Board's Rules and Regulations and thus the motion
itself fails to meet the administrative requirements of Section 102.24 of the
Rules and Regulations-Series 6. As I do not know what reasons the Respond-
ent is asserting in this connection, I shall deny the motion for lack of such
specificity.
Upon the basis of the entire record in the case, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a Puerto Rico corporation , manufactures gloves in Cayey,
Puerto Rico.
-
In 1950 the Respondent 's volume of business totaled $32,000
and all of its raw materials and finished products were respectively obtained
from and shipped to continental United States.
I find that the Respondent is engaged in commerce within the meaning of
the Act.
IT. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2 (5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
Preliminary Comments
On October 17, 1950, in a representation election conducted under Board aus-
pices among the Respondent's employees, an equal number of ballots were cast
for and against the Union, the only labor organization involved in the election,
in addition to which some challenged ballots also were cast. The Union has
requested the Board to set aside the results of the election upon claims set
CAYEY MANUFACTURING CO., INC. 499
forth in its objections to the effect that the Respondent interfered with the
employees' free choice of a bargaining representative. The unfair labor prac-
tices' aspect of this consolidated case involves allegations by the General Coun-
sel that the Respondent's conduct vis-a-vis the election violated Section 8 (a)
(1) of the Act,' and the complaint also alleges that the Respondent discrimina-
torily refused to reemploy two employees in violation of Section 8 (a) (3) and
(1) of the Act.
One preliminary matter should be mentioned. This involves the General Coun-
sel's proof that in or about December 1949 the Respondent took over the physical
properties and equipment, the employee complement, and even the unperformed
production contracts of Granada Glove Corporation; and in this successorship
connection the General Counsel offered evidence relating to a settlement agree-
ment arising out of unfair labor practice charges involving the Granada concern.'
I do not understand what relevancy the settlement agreement has to the present
complaint and, therefore, I shall not discuss this matter further.
Alleged Interference with the Election-8 (a) (1)
Threats and,-Promises
The representation petition was filed on May 29, 1950, the Board's Decision
and Direction of Election issued on September 22, 1950, and the election'was held
on October 17, 1950.
The Respondent suspended operations and conducted preelection meetings on
company time and premises on September 27, October 9, and October 17, which
required the employees to attend.' Richard J. Broadman, the Respondent's
president and principal stockholder, attended these meetings and delivered pre-
pared speeches through Miguel Padro, his Spanish-speaking secretary. Except
to mention that these speeches referred to the coming election, I shall not dis-
cuss their contents ; for the Trial Examiner stated at the hearing, without objec-
tion from the General Counsel, that no question was, raised as to these prepared
speeches but that the only issues in this connection related to certain additional
remarks which Broadman 'madeat the meetings.
T s "(a) Urging, persuading, and warning its employees by threats of reprisal or force
or, promise of benefit to refrain from assisting, becoming or remaining members of a labor
organization , or engaging or continuing to_ engage in concerted activities for the purposes
of collective bargaining or other mutual aid or protection ;
(b) Questioning its employees concerning their sympathies in and activities on behalf
of the Union ;
(c) Threatening its employees with loss of employment should they assist, become or
remain members of the Union or engage in or continue to engage in concerted activities
for the purposes of collective bargaining or other mutual aid or protection ;
(d) Keeping under surveillance the organizational activities of its employees and of
the Union;
(e) Threatening its employees that its place of business would be closed down and
moved, should the Union succeed in its efforts to organize the employees ;
(f) Compelling its employees to listen to Speeches delivered by Respondent 's officers
and agents during working hours for the purpose of urging, persuading, warning and
coercing its employees to refrain from assisting, becoming or remaining members of the
Union, or voting for the Union in the'election directed by the Board-in Case No. 24-RC-44;
(g) Refusing to employ individuals solely because of their membership in and activities
on behalf of a labor organization."
The record is inconclusive -in my opinion as to whether the Respondent - itself finally
became a party to this settlement. This is of no consequence, however.
' It is unnecessary to resolve a conflict in testimony as to whether still another meeting
was held on October 13.
227260-53--vol. 100-.33
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carmen Martinez testified as a witness for the General Counsel, with Ana
Adelfa Torres testifying to similar effect, that Dolores Cotto' asked Broadman
at the meeting held on the morning of the election whether he would remove the
factory if the Union won the election and that either Broadman or Padro replied
that "the factory was his [Broadman's], and that he would take it away any
time he wanted to, because he could use the machines of that factory for making
caps and umbrella covers, and that the ones who really needed that work were
ourselves [the employees], because he was an industrial engineer and didn't need
that ; that he had his own career, and didn't need to do that." Torres also
testified that Broadman further stated that the so-called Fomento (Puerto Rico
Industrial Development Corporation) couldn't replace the Respondent's opera-
tions because it did not knew how to manufacture gloves, and Torres later tes-
tified that Broadman said he would move if the Union won the election. Employee
Gloria Maria Miranda gave similar testimony as a wiliness for:the General Coun-
sel and also quoted Broadman as stating, in part, that Broadman would move
"if the Union won and he had to pay more than 45 cents an hour." (The hourly
rate at the time was 35 cents.)
Cotto testified for the Respondent that Broadman's reply to Maria Perez and
her own questions was that "he was not thinking of taking the Company away
from the place where it is located because he had in mind the good operators
that he had in his shop, and that therefore he did not have in mind to change
because he could not change the factory from there to another town ; but that
he could sell the factory and go back to the United States where he had his job"
and that "he didn't care whether the Union won or not, because he was working
with what was his . . . ."
Finally, we come to Respondent's own testimony concerning his reply :
Q. (By the Respondent's counsel) Was any question asked whether you
would move your factory in case the Union won?
A. The question was whether I could remove the factory. This, as you
know, was a legal problem and I did my best to explain it, the best I could
as explained to me, and my answer was that I could move the factory, that
the machinery belonged to me, and as such it was my privilege to move it
where I may. I also said that the law prohibits me from moving a factory
in order to avoid labor difficulty. I also said that the law would permit me
to close the factory if I wished and follow other pursuits, such as engineering,
which was my profession, or use it for other articles such as umbrellas and
other products.
• M • O # # 4
Q. Did you threaten in that speech or any other speech to close the factory
because of Union orders [sic] ?
A. I have never threatened to close the factory because of Union orders.
The Respondent points to variations in the afore-mentioned testimony of the
General Counsel's witnesses as demonstrating distortion and misconstruction
in some employees' minds of what he really said in answer to Cotto's question.
There are variations, it is true." Yet all versions of Broadman's remarks, includ-
ing even Broadman's and Cotto's, whether the testimony be that Broadman
"would" or only "could" remove his factory give the very definite impression in
this preelection context that Broadman had the economic whip-hand in being
4 Cotto is an assistant to Forelady Virtuosa Roquet, a supervisor. The General Counsel
does not claim that Cotto also is a supervisor within the meaning of the Act.
5 The Respondent contends that testimony on another issue involving one Vega should
be disbelieved because of its uniformity.
CAYEY MANUFACTURING CO., INC. 501
able to give up his plant or change its operations and that this was a factor
that the employees should reckon with in deciding how to cast their ballots in
the election . I cannot accept the suggestion that Broadman and the employees
were merely engaging in abstract legal discourse . Moreover , it is noteworthy
in appraising the entire situation that Cotto 's direct testimony in this connection,
she was one of the Respondent 's principal witnesses on this issue , contained
patent inconsistencies and was finally given with much prompting .' I find that
Broadman threatened the employees that he might move or shut down the plant
or change its operations depending on the outcome of the elections and that the
Respondent thereby violated Section 8 ( a) (1) of the Act . Sawe-Glassman Shoe
Corporation, 97 NLRB 332.
Another question which was asked of Broadman at the meetings dealt with
the matter of wage increases . It appears that some of the employees had
thought that only union members would receive a wage increase should the
Union win the election , and in answering the question Broadman stated that an
increase would be granted to all employees and also that the Union would have
nothing to do with obtaining the increase as it was required under recent minimum
wage legislation . Broadman 's statutory explanation of the increase is unrefuted
and the record does not convince me that the discussion of a wage increase was
initiated by the Respondent.
Ordinarily an employer may not advise its employees , particularly in an
election contest, that they do not need a union to obtain additional financial
benefits. Bonwit Teller , Inc., 96 NLRB 608. But in the ordinary situation,
unlike the present case of a statutory increase , the benefits in question are
within the employer's control. Under the circnmstanees I cannot say that the
Respondent was not lawfully entitled to make the explanation under discussion,
and on the basis of the record I do not construe Broadman 's remarks as holding
out a promise of a wage increase in return for a union defeat at the polls.
Interrogation
Employee Maria Rodriquez testified without contradiction that after receiving
a subpoena and having given a statement to a Board investigator , she was
summoned to Broadman 's office ; that Broadman asked her in the presence of
the Respondent 's attorney whether "it was true that my declaration was more
in favor of the Union than against it"; and that the attorney thereupon asked
her a number of other questions which she could not recall at the hearing.
The record does not fix the time of this incident. The incident, therefore, may
have occurred during the investigation of the present one, in which event it
would be within the scope of the complaint. On the other hand, there was the
case involving the afore -mentioned settlement agreement and the record shows
that charges were filed and later withdrawn in another proceeding against the
Respondent, in which event the incident in question may have occurred beyond
the statutory 6-month period. Therefore, without deciding that the Respondent
unlawfully interrogated Rodriquez or that its conduct did not exceed the per-
6 For example : Cotto unequivocally says at page 298 of the record that no questions were
asked at the meeting of October 9 ; then being prompted, she says at page 299 that some
questions were asked at this October 9 meeting ; then it appears , also on page 299, that
she is not certain as to which meeting she had been testifying. at page 300 she then
testifies that questions were asked at all meetings , then at pages 300-301 she testifies
that no meetings were held before the election, although she had previously testified
regarding such meetings, and after then being told by counsel that at least two meetings
had been held before the election as the parties stipulated , she testifies at page 301 that no.
questions were asked at those two meetings
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
missible bounds of pretrial preparation; although I do not believe that the facts
and circumstances were sufficiently developed to permit a resolution of this
matter, I shall recommend dismissal of this allegation for failure of proof of
its timeliness.
Surveillance and Other Interference
On October 12, 1950, the Union conducted an organizational rally and used
loud-speaking equipment on the public street in front of the Respondent 's plant.
The testimony is conflicting as to whether the loud speakers began operating
during working hours before the regular noon dismissal , as the Respondent's
witnesses testified s and as Gloria Miranda-a witness for the General Counsel-
also testified , or whether the meeting did not begin until after the employees
were dismissed , as several of the General Counsel's other witnesses stated.9
Although the General Counsel seemed to be contending that the sound equipment
was not put into use before the noon dismissal , I am unable to find a preponder-
ance of evidence supporting such position , particularly in view of the agreement
of Miranda's testimony with that of the Respondent 's witnesses which testimony
I accept on this point.
Miguel Padro , Broadman 's secretary , testified that he summoned the police
when one of the union organizers refused his request not to use the sound
equipment during actual working hours , Padro also testifying that the loud
speaker disrupted normal plant operations . The police arrived and soon left
the scene after discussing the matter with the interested parties and without
taking any action to silence the sound equipment or otherwise to restrain the
conduct of the meeting.
Without deciding whether Padro acted with real or even apparent authority
in summoning the police and in seeking to quiet the loud speaker during working
hours, I do not believe that the incident itself was of any consequence or that it
deprived the employees of their statutory rights or otherwise interfered with
their choice of a bargaining representative in the election several days later10
Forelady Virtuosa Roquet, a supervisory employee ,' stood at a plant window
during the afore-mentioned union rally , and witnesses for the General Counsel
testified that she took notes of the proceeding. These witnesses were unable to
state positively that the notes in question dealt with the meeting , yet the posture
of proof was such that the burden of going forward fell upon the Respondent
to refute the clear implication of their testimony . This the Respondent failed to
do. Moreover , there was more than guesswork involved in the employees' judg-
ment that Roquet was making notes of the meeting ; for Roquet admitted taking
notes at a meeting of the Union in the early stages of its organization-long before
the events under discussion-and that she turned over such notes to her superior.
4 Cf Joy Silk Mills v. N. L R. B., 185 F. 2d 732 ( C. A. D. C. ), cert. denied 341 U S 914.
8 Dolores Cotto , Miguel Padre.
° Carmen Martinez , Ana Adelfa Torres.
10I find no allegation in the complaint to which this particular incident may be related
as an unfair labor practice and I would therefore make no finding of unfair labor practices
based thereon. And while I also do not believe that it is specifically covered by the issues
posed by the statement of objections to the conduct of the election as outlined in t.e
Regional Director 's report on objections , or even as stated in the Union 's original objec-
tions, I do believe that somewhat greater latitude may be accorded in a nonadversary
administrative proceeding whose purpose is to determine the employee 's choice of a
bargaining representative and not whether the Respondent has committed an unfair labor
practice . That is why I have considered it. In any event , however, I find neither a
statutory violation nor any other interference with the election in this regard
a' Roquet is responsible for the quality and quantity of the individual operator's produc-
tion ; and she is solely in charge of plant production each morning from 7 : 45 until the
arrival of Broadman or the factory manager at 10 or 10: 30.
CAYEY MANUFACTURING CO., INC. 503
While I find that Roquet, a supervisor, made notes of the October 12 meeting,
I do not believe such conduct to be unlawful surveillance. The rally took place
on a public thoroughfare directly fronting on the Respondent's premises and
there isn't the slightest indication in the record that the rally was intended to be
a private union affair. I cannot agree that Roquet and other management
representatives are obliged by law not to observe such open proceedings and that
the Act forbids such representatives to make a written record of what they are
thus entitled to see. Coca-Cola Bottling Company of St. Louis, 95 NLRB 284;
Salant & Salant, Incorporated, 92 NLRB 417, 447.
Another item of alleged surveillance in connection with the October 1950
election is contained solely in the testimony of Ana Adelfa Torres to the effect
that while casting her ballot in the voting booth which was located on the
Respondent's premises, she observed an eye peering at her from a small round
aperture in the ceiling above the booth and that the bole has since been covered.
Torres testified that she did not recognize whose eye she saw and that she did not
tell anyone of the incident until after the election. The Respondent might be
said to have control of its premises and therefore1generally responsible for
its condition and even for what goes on above its ceilings., Nonetheless, and
even though the Respondent offered no testimony to refute this "eye in the
ceiling" incident, I am unable to find, solely upon the afore-mentioned testimony
and merely because the premises were the Respondent's, that a representative
of the Respondent was stationed above the voting booth and violating the
secrecy of the election along the lines suggested by Torres.
Compulsory Audience
As stated above, Broadman required the employees to attend several meetings
on company time and premises during which he addressed them concerning the
forthcoming election in a manner unfavorable to the Union. The complaint
alleges that this so-called "compulsory -audience" situation violated the Act.
The compulsory audience concept, that an employer may not compel his em-
ployees to listen to speeches relating to their self-organizational activities, was
first enunciated by the Board and later modified by the Court of Appeals for the
Second Circuit in the Clark Bros. case.'2 Congress disapproved the doctrine in
enacting the 1947 amendments to the Act,' and the Board thereupon held in
Babcock & 'Wilcox, 77 NLRB 577, that a compulsory audience is not per se vio-
lative of the Act. Recently, in Bonwit Teller, Inc., 96 NLRB 608, the Board
reaffirmed the Babcock & Wilcox ruling but held that "an employer who chooses
to use his premises to assemble his employees and speak against a union may
not deny that union's reasonable request for the same opportunity to present its
case, where the circumstances are such that only by granting such request will the
employees have a reasonable opportunity to hear both sides." "
Now the complaint in the present case alleges as a violation in this connection
that the Respondent compelled its employees to attend the afore-mentioned meet-
ings ; it does not allege, nor did the General Counsel assert or even suggest at the
hearing , that the theory of the compulsory audience allegation in this case com-
prehended the legal and evidentiary propositions relating to Padro's afore-de-
scribed attempt to silence the loud-speaking equipment. I would be unwarranted
under these circumtances to broaden the scope of the complaint by so substantial
a change of theory from that litigated in this case as to consider the case under
11 N. L. R. B. v. Clark Bros. Company, Inc., 163 F. 2d 373, enforcing 70 NLRB 802.
19 Senate Report No . 105 on S. 1126, 80th Cong.. 1st Sess., pp . 23-24.
1* Cf. Biitmore Manufacturing Company, 97 NLRB 905.
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discussion as a Bonwit Teller situation. I conclude, therefore, that by convoking
and addressing its employees concerning the forthcoming election, the Respondent
did not violate the Actb
Additional Intimidation
The General Counsel adduced testimony of Gloria Miranda, Ana Torres, Man-
uela Ramirez, and Ramonita Ortiz to the effect that during the October 17 election,
Forelady Roquet and Broadman's secretary, Padro, brought Aida Luz Vega in a
car to the plant premises where the election was being held and that in leaving
the car Roquet told Vega that "the ballot has two squares ; one says yes and the
other no. You should go to vote under the 'no.' If you vote under the `yes,' zero
work."
Vega had been in the Respondent's employ until approximately 3 months before
the election when she left because of pregnancy. She gave birth in September
1950 and the record does not show that she has since worked for the Respondent.
Dolores Cotto went to Vega's house every day after Vega had the baby. Cotto
advised Vega of the forthcoming election and in their discussions concerning
the matter Cotto explained to Vega, according to Vega's testimony as a witness
for the Respondent, "How the ballot would be, and how I had to vote." 16 Vega
also testified that about 3 days before the election, Roquet visited her home to see
the baby on which occasion Vega told Roquet that she, Vega, was thinking of
returning to work as soon as she could.
Vega testified that while waiting for a bus to go to the plant so that she might
vote on election day, Padro and Roquet came by in a car and saw Vega in the
street and that they asked her whether she was going toward the plant where
Padro and Roquet were heading and that Vega thereupon joined them. Vega
testified that she had no discussion at all with the other two during the ride, and
Padro testified to a similar effect. The three testified that upon reaching the
plant Padro and Roquet left Vega to go her separate way without saying anything
to her. Vega denied having been threatened in connection with the election.
There is thus a direct conflict as to whether or not Roquet made the statement
to Vega which the General Counsel's witnesses attribute to her. The Respondent
contends it would ignore common sense to believe that Roquet would have made
the statement in earshot of the other employees when good judgment would have
required it to be made, if at all, in the privacy of the car, and that Respondent
also points to the identical testimony of the General Counsel's witnesses in this
respect as demonstrating, in effect, that their stories were concocted. While these
contentions have seeming merit, it is important to note the consistency of the
General Counsel's version with Vega's own testimony of her earlier discussion
with Roquet concerning her desire for an early return to work. Then there is
the circumstance of Roquet's visit about 3 days before the election, Roquet's
first visit to Vega so far as the record shows although at least a month had elapsed
since Vega's return from the hospital, and the further happenstance that Roquet
should come upon Vega waiting for a bus while the election was in progress. To
attribute coincidence with the election rather than design to these events might
also be said to ignore good judgment.
I received the impression in reading Vega's testimony that she was not a frank
witness. For example, Vega testified on direct examination that she had not
15 This compulsory audience proposition must of course be distinguished from the sepa-
rate violation based on the content of Broadman's remarks as discussed earlier in this
report.
16 Although this testimony is somewhat ambiguous, I interpret it as referring to the
mechanics of voting rather than for whom Vega would vote.
- CAYEY MANUFACTURING CO., INC. 505
worked, at the plant "that same day" of the election, and when the General
Counsel first interrogated her along this line she replied, "I was working , yes, but
I had not been there for a few days." Only upon further cross-examination did
,she state that she had been pregnant and had not worked for about 3 months.
And after testifying that Roquet and Padro had stopped the car and asked her
whether she was going to the plant and that she had not then told Roquet she was
going to vote, Vega attempted to explain Roquet's question to her by referring
to the fact that "I had scissors belonging to the shop ," a matter which Vega
testified had nothing to do with her trip to the plant that day.
I conclude that Roquet made the statement attributed to her by Miranda,
Torres, Ramirez, and Ortiz and that the Respondent thereby warned Vega that
her prospects for employment depended on her voting against the Union.
Gloria Miranda also testified that she had been told by another laid off em-
ployee, Angela Garces, that Roquet had advised Garces to go to the polls and that
the Respondent would not reemploy her if she voted for the Union . Even though
this testimony was undenied by Roquet , I shall predicate no findings on it because
of its clearly hearsay nature.
Refusal to Rehire-8 (a) (3)
Manuela Ramirez and Ramonita Ortiz had been employed by the Granada con-
cern and then by the Respondent when the latter took over the plant. Both em-
ployees were machine workers , although on different operations at least in May
1950. Ramirez was secretary of the Union and Ortiz was a member of its board
of directors and each was otherwise active in organizational activities. The
Respondent does not claim ignorance of the union membership and activities of
these employees.
In May 1950 Respondent laid off about 25 or 30 employees , including Ramirez
and Ortiz . The record does not show what basis of selection was used at the
time and no charge is made that the layoff was for other than lawful economic
reasons. The Respondent subsequently hired some of these laid off employees,
including some who were union members , but it refused the application of
Ramirez and Ortiz allegedly because of their low production before the May
layoffs. The Respondent does not contend that work was unavailable when
Ortiz and Ramirez applied for work, the record showing in this connection,
moreover , that the Respondent was training new employees or rehiring old ones
at the time.
About July 1950 Ortiz applied to Broadman for reemployment. Broadman
told Ortiz, according to the latter's testimony, that he had no work for her
because she was a member of the Union but indicated that there might be work
for her the next year . Broadman's version of the incident is that he told Ortiz
that business was bad and that he could afford to hire only the better operators
and that he did not believe there would be work for her for at least a year.
Ramirez and another laid-off employee , Carmen Martinez , also applied for re-
employment about the same time . Martinez was vice president of the Union
and openly active in its affairs . Broadman told them , according to Ramirez,
that "there would be no work for us . . . because we were employees of the
Union, and that at no time did he want a union there, because in the United
States he had been a member of a union and he know what unions were, and
that a union could not be formed until the shop had been operating for a period
of at least a year , and until the factory was making money." Broadman also
told Ramirez, according to the latter's further testimony, that Ramirez "was
not pleasing to him , because I [Ramirez ] was one of those that were doing the
most propaganda [in the Union 's behalf ]." According to Martinez , Broadman
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
told Martinez that she should report for work the following morning, which'
Martinez did, but that he did not know if work would be available for Ramirez
within a year "because he had been presented with that business of the Union"
and that "a union could not function in a factory until it situated itself, until
six months or a year after it was established, because they were losing a lot
of money." Broadman's testimony regarding this incident, which was cor-
roborated by Roquet, is that he told Ramirez he could not hire her because of
poor business and that he explained to her in this connection that her slow
rate of operation doubled the cost of her production to the Respondent. Al-
though Broadman denied that the word "union" was used in connection with
any application he did testify that "it's quite possible . . . that I told [Martinez
at the time] . . . that I didn't think the factory should be organized, because
the factory needed time to get organized before the Union came in." On cross-
examination by the Respondent, Martinez could not recall whether Broadman
had discussed Ramirez' production on this occasion but she did testify that
Broadman had stated that he could not hire Ramirez "because he was losing a
lot of money," thus tending to corroborate Broadman.
Ortiz and Ramirez applied together a second time in February 1951, on this
occasion to Factory Manager Richard Klein. Klein told Ortiz and Ramirez,
according to the testimony of both applicants, that there was no work for them
because they were union members. Klein's version of the conversation was that
he referred to Broadman's comment on the occasion of their earlier application
regarding their inadequate production and stated that there was no reason
to change the decision not to rehire them for that reason.
Broadman testified that he had personally observed that Ortiz and Ramirez'
were slow workers, that Ramirez did not respond to attempts to improve her
work and that further training in her case would not be warranted, and that
Ortiz had difficulty in manipulating the cloth she worked on. Broadman was un-
able to recall, however, that he had ever criticized the work of either- employee
and no other management representative or supervisor testified to criticizing
these individuals, both' employees, moreover, having testified to the contrary.
Respondent uses various materials in its manufacture. ' Broadman and Fore-
lady Roquet testified that Ramirez' production on so-called regular cloth was half
the production of the average employee and Broadman also testified, with a
denial by Ramirez, that Ramirez had admitted her low production at a meeting
at the Board's Regional Office which meeting was called to arrange an election
date in the representation case. -
The Respondent adduced a summary of daily production records of all em-
ployees engaged in the same respective operations as Ortiz and Ramirez. The
records were for a 10-day period immediately preceding their layoff in May 1950,
and Broadman testified that records for even such a short period were representa-
tive because of the highly repetitive nature of the plant's operations. These
records together with related testimony tend to Show that no other employees
having less production than Ortiz and Ramirez and who also were laid off in
May 1950 were subsequently rehired, except for a single case in each section
which are otherwise explained . The General Counsel contended that these pro-
duction records are an insufficient basis upon which to assert the employees'
comparative productivity ; however , no showing was made by reference to pro-
duction records for other periods of employment, that the period in question was
not representative or that Ramirez' comparative production on regular cloth was
not what Broadman and Roquet stated it to be. At the hearing, the Respondent
indicated the existence and availability of these other records for such a check.
CAYEY MANUFACTURING CO., INC. 507
While the Respondent's proof as to the comparative productivity of Ortiz and
Ramirez.leaves'much to be desired, I am unable to find a preponderance of evi-
dence that these employees did not have poor production records. And while I
believe that several circumstances point toward discrimination, I also do not
believe the evidence preponderates in support of such an adverse finding.
Accordingly, I must recommend dismissal of this portion of the complaint.
Summary of Findings
I find that the Respondent violated Section 8 (a) (1) of the Act by threaten-
ing to move or shut-down or change its operations depending on the outcome of
the election and by warning Vega that her employment prospect depended on
how she would vote in the election. And I find that by engaging in this conduct
the Respondent also interfered with the conduct of the election of October 17,
1950, thereby depriving its employees of their right to an uncoerced choice of a
bargaining representative. I do not find, with respect to other allegations in
the complaint, that the Respondent has otherwise violated the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent described in section III, above , occurring
in connection with the Respondent 's operations described in section I, above,
have a close , intimate , and substantial relation to trade , traffic , and commerce
among the several States and territories , and such -of-them as have been found
to constitute unfair labor practices tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
v. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor prac-
tices, I shall recommend that it cease and desist therefrom and take certain
affirmative action in order to effectuate the policies of the Act. And having
also found that the unfair labor practices interfered with the employees' free
choice in the election of October 17, 1950, I shall also recommend that the elec-
tion be set aside.
In view of the nature of the unfair labor practices committed, I shall also
,recommend that the Respondent cease and desist from infringing in any manner
upon the rights guaranteed in 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. The Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (1) of the Act.
2. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]