Cadillac Mfg., Corp.

National Labor Relations Board - Board Decisions

Sep 29, 1977

232 N.L.R.B. 586 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cadillac Manufacturing Corporation; Cadillac Shirt
Corporation; and Western Garments, Inc. and
Confederacion Laborista De Puerto Rico. Case
24-CA-3792
September 29, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On April 28, 1977, Administrative Law Judge
Josephine H. Klein issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions ' of the Administrative Law Judge and to
adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
i Based on the limited record before us, we affirm the Administrative
I.aw Judge's conclusion that the Respondents - when they withdrew
recognition of Confederacion Laborista de Puerto Rico on October 21, 1976
-had objective evidence constituting grounds for asserting the existence of
conflicting claims to representation and reasonable doubt of Confedera-
cion's continuing majority. However, in agreeing with the Administrative
Law Judge, se rely solely on evidence indicating objective considerations
existing on or before October 21. 1976. Thus, the July 1975 employee letter,
the pre-October 21, 1976, demrandds of the Amalgamated Clothing Workers
to include the mechanics in its unit, and the Amalgamated authorization
cards (signed by six mechanics in May 1976) - taken together -- support a
finding that the Respondents' October 21, 1976, withdrawal of recognition
was lawful. In finding that objective considerations existed, we specifically
do not rely on any post-October 21. 1976, demands of Amalgamated or the
February 1977 employee letter.
DECISION
JOSEPHINE H. KLEIN, Administrative Law Judge: Pursu-
ant to a charge filed on November 15, 1976, by Confedera-
cion Laborista de Puerto Rico (Confederacion), a corn-
plaint was issued against Cadillac Manufacturing Corpora-
tion; Cadillac Shirt Corporation; and Western Garments,
Inc. (collectively referred to as Respondent) on February 7,
1977, alleging violation of Section 8(a)(5) and (1) of the
National Labor Relations Act, as amended, 29 U.S.C. Sec.
151, et seq., by Respondent's refusal to bargain with
Confederacion as the certified collective-bargaining repre-
sentative of the mechanics employed by Respondent.
Pursuant to due notice, the case came on for hearing
before me in Hato Rey, Puerto Rico, on March 21, 1977.
All parties were represented by counsel and were afforded
full opportunity to present oral and other evidence. By
agreement, several joint exhibits were introduced into
evidence and both parties then rested without presenting
any testimony. Having stated their positions in opening
statements, the parties waived oral argument. The General
Counsel stated that he did not intend to file a brief.
Respondent requested and was granted leave to file a post-
hearing brief. However, the General Counsel actually filed
a brief, but Respondent did not.
Upon the entire record, I make the following:
FINDINGS OF FACT
1. PRELIMINARY FINDINGS
A. In its answer to the complaint Respondent denied
all the allegations of the complaint and at the hearing "put
the Government on notice" that Respondent "wanted
them to show who they were proceeding against and so
on"; i.e., the jurisdictional allegations. The General
Counsel relied on the Decision and Direction of Election in
Case 24-RC-5377, in which, on June 14, 1974, the
Regional Director stated that "It was . . . stipulated that
the three companies are a single employer," and then
found:
The three captioned companies comprising the Em-
ployer herein are Puerto Rican corporations engaged,
under one roof, in the manufacture of men's clothing at
Mayaguez, Puerto Rico. During the past calendar year,
their purchases of goods and materials directly from
sources outside Puerto Rico exceeded $50,000 in value,
and during the same period its volume of sales of
products to points outside Puerto Rico also exceeded
$50,000 in value.
On September 28, 1976, the three corporations, as the
"Charged Party," entered into a settlement agreement in
Case 24-CA-3754, discussed below. In the absence of
evidence of any change since the certification and the
settlement agreement, it is found that the corporations
named herein are collectively a single employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
232 NLRB No. 96
586
CADILLAC MFG. CORP.
B. Confederacion Laborista de Puerto Rico is, and has
been at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act.
1. THE UNFAIR LABOR PRACTICES
A. Background'
For many years Respondent's production and mainte-
nance employees have been represented by the Amalga-
mated Clothing Workers of America, AFL-CIO (Amalga-
mated). In 1974 Confederacion filed a petition to represent
the "mechanics and their helpers" employed by Respon-
dent (Case 24-RC-5377). Amalgamated intervened in that
proceeding, maintaining that its collective-bargaining
agreement with Respondent barred Confederacion's peti-
tion. After a hearing, the Regional Director found that the
mechanics were not included in the certified production
and maintenance unit and therefore there was no contract
bar. He further found that the mechanics constituted an
appropriate separate bargaining unit and directed an
election. On July 30, 1974, after an election, in which both
unions were on the ballot, Confederacion was certified as
representative of the mechanics, who have always num-
bered from five to seven.
On July 16, 1975, five of the six mechanics signed a
request for decertification of Confederacion addressed to
the Board. The joint exhibit in the record is a photocopy
bearing on its back a date stamp of "Nachman, Feldstein
& Gelpt" dated August 4, 1975. Stanley Feldstein, Esq., is
one of Respondent's attorneys. There is no evidence in the
record as to whether the original was filed with and/or
acted on by the Board.2 Counsel for Respondent also
stated that at sometime a charge (or charges) alleging
refusal to bargain was (or were) filed but apparently no
complaint was issued.3
The Confederacion filed a charge on August 10, 1976,
and an amended charge on September 27, 1976. An
informal settlement agreement entered into by Respon-
dent, the Confederacion and the General Counsel was
approved by the Acting Regional Director on September
30, 1976 (Case 24-CA-3754). On October 5, 1976,
Respondent posted a notice pursuant to the settlement
agreement.
On November 15, 1976, the Confederacion filed the
charge in the present case, alleging Respondent's violation
of Section 8(a)(5) by refusing to bargain since October 21,
1976. The complaint, issued on February 7, 1977, alleges
primarily that Respondent unlawfully withdrew recogni-
tion of the Confederacion on October 21, 1976. Respon-
dent concedes that since that date it has refused to bargain
I Since there is no testimony, this statement of facts is based on
documentary evidence and statements of counsel.
2 At the present hearing, Mr. Weasler, counsel for Respondent said:
"[The mechanics have] come in, they filed-they left some papers on the
desk of one of our representatives which were in turn sent to the Labor
Board. The Labor Board acknowledged receipt of the papers and said they
would send a petition for these boys to ask for an election." It seems likely
that counsel was referring to the July 16, 1975, document.
In his brief, counsel for the General Counsel says: "The Regional Office
records do not show the filing of any petition seeking decertification of
Confederacion."
with Confederacion because of a conflicting claim to
representation by Amalgamated.
It appears that on November 15, the same day the
present charge was filed, Respondent filed an RM petition
(Case 24-RM-208). On January 18, 1977, the Regional
Director dismissed that petition, stating that "because no
question concerning representation exists, an 8(aX1)(5)
complaint in Case 24-CA-3792 will be issued." 4
B. The Present Proceeding
For an understanding of the issues here presented, it is
essential that the course of the hearing be reviewed. In an
opening statement summarizing the relevant facts, counsel
for the General Counsel said:
... Eventually, Confederacion filed an 8(aX5)
charge alleging that Cadillac had engaged in dilatory
tactics in the bargaining negotiations. The number of
the charge was 24-CA-3754.
That charge was filed, Your Honor, on August 10,
1976 ... it was amended September 27, 1976-and it
culminated in a settlement agreement which I [shall]
put into evidence, executed by Mr. Weasler on behalf
of the Company and Mr. Velez Mangual on behalf of
the Confederacion, on September 28, 1976.
The settlement agreement was of an informal nature
and the notice provided for therein was that-well, I
need not recite it, Your Honor, I'll put it in evidence.
In his opening statement on behalf of Respondent, George
L. Weasler, Esq., conceded that in a letter dated October
21, 1976, Respondent withdrew recognition and refused to
bargain with the Confederacion because "of the conflicting
claims of [Confederacion] and of Amalgamated . . . and
the resultant confusion as to which labor organization does
in fact represent the company's mechanics." Respondent's
counsel did not suggest any specific disagreement with the
statements of counsel for the General Counsel concerning
the charge and settlement in Case 24-CA-3754.
On the basis of Respondent's acknowledgment of the
settlement agreement and admission of its subsequent
refusal to bargain, I indicated my view that, under Poole
Foundry and Machine Company, 95 NLRB 34 (1951), enfd.
192 F.2d 740 (C.A. 4), cert. denied 342 U.S. 954, and
numerous cases following Poole, I saw no ready alternative
to finding that Respondent had violated the Act by
3 Counsel for Respondent said: "[wjhile it is true that the Federation had
filed charges on August 10th of ['76'], which they amended, they filed
former charges claiming that we had not negotiated with the Federation and
the same reasons they gave the last time they had given previously. And
those charges were withdrawn or dismissed, I forget. Of course the
documents will be made available during the course of the hearing." The
documents referred to were not introduced.
I Although this petition was referred to by counsel at the hearing, the
documents were not put into evidence. However, they have been appended
to the General Counsel's brief, with a request that I take official notice of
them.
587
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
withdrawing recognition within a month after settling an
8(a)(5) charge.5 I urged the parties to waive Decision by an
Administrative Law Judge and stipulate the record directly
to the Board for possible reexamination of the Poole
Foundry principle, "unless [Respondent was] prepared to
argue why Poole Foundry isn't applicable." Counsel for
both parties stated that counsel for the General Counsel
had previously recommended stipulating the matter direct-
ly to the Board, but Respondent's counsel had refused to
agree.
The parties then agreed to the introduction of several
documents and thereupon both rested. Thus, with no
testimony taken, the matter was submitted on the formal
papers, together with the following documentary evidence,
submitted as joint exhibits:
(I) The Decision and Direction of Election and the
Certification of Representative in Case 24-RC-5377,
issued on July 30, 1974, certifying the Confederacion as
representative of Respondent's mechanics.
(2) and (3) The Amended Charge and Settlement
Agreement, approved September 30, 1976, in Case 24-
CA-3754.
(4) A letter dated October 13, 1976, from Confedera-
cion's counsel to Respondent's counsel requesting a
meeting "to continue conversations."
(5) A letter dated December 22, 1976, from Amalga-
mated to Respondent renewing a request for inclusion
of the mechanics in the existing collective-bargaining
agreement.
(6) and (7) A letter dated December 29, 1976, from
Respondent's counsel to cocounsel enclosing copies of
a letter dated October 21, 1976, by Respondent's
counsel to counsel and a representative of Confedera-
cion withdrawing recognition because of "the conflict-
ing claims of [Confederacion] and of Amalgamated."
(8) A letter dated February 16, 1977, signed by five
mechanics notifying Respondent that they "have
withdrawn representation of us from Confederacion."
(9) A letter dated July 16, 1975, signed by five of the
six mechanics addressed to the Board and stating the
signatories' desire for decertification of Confederacion.
(10) Membership and authorization cards for the
Amalgamated dated May 28, 1976, executed by six
mechanics.
The very short proceedings ended with Respondent's
counsel again declining to stipulate the matter to the Board
because "we feel that for reasons of our own, policy
reasons, that we want findings of fact by you so that we
have a proper record on which to take this up." The
General Counsel then waived oral argument and the filing
of a brief, stating that he was relying on "his opening
statement and . . . the case citations," which were Poole
Foundry and N. J. MacDonald & Sons, Inc., 155 NLRB 67
5 I said: "ITI]he Board law seems to be so clear that I-I mean this is just
on the opening statements, now I assume that everybody's opening
statements will be supported by evidence--how do we get around Poole
Foundry and the hundreds of cases following it?"
B The original file does not appear in the record.
The brief says: "In closing, upon reading the transcript, Counsel for the
General Counsel noted that the Administrative Law Judge referred on pages
13, 14. and 15 to the doctrine of Poole Foundry and Machine Co....
(1965), which he had mentioned "as being close to our
factual situation." While waiving oral argument, Respon-
dent's counsel said he "would like to briefly review some of
the decisions" in a posthearing brief. As previously stated,
the General Counsel filed a brief, while Respondent did
not.
Upon reviewing the record, I discovered that, contrary to
the representations of counsel for the General Counsel, in
effect corroborated by counsel for Respondent, Case 24-
CA-3754 did not involve any alleged violation of Section
8(aX5). The amended charge6 alleged only that since May
28, 1976, Respondent had violated Section 8(a)(2) and (1)
by unlawfully assisting Amalgamated "by insisting that
mechanics join said union notwithstanding that their
certified collective-bargaining representative is Confedera-
cion." In the settlement agreement Respondent was
committed to refrain from discouraging membership in
Confederacion "or any other labor organization," encour-
aging or soliciting the mechanics to assist or support
Amalgamated "or any other labor organization," and
interfering with, restraining or coercing its employees "in
any other manner." The settlement agreement did not
require Respondent to bargain with Confederacion.
C. Discussion and Conclusion
Since Case 24-CA-3754 did not involve alleged violation
of Section 8(aX5), as counsel had represented, the Poole
Foundry rule is inapplicable. As said in that case (95 NLRB
at 36):
It is well settled that after the Board finds that an
employer has failed in his statutory duty to bargain
with a union, and orders the employer to bargain, such
an order must be carried out for a reasonable time
thereafter without regard to whether or not there are
fluctuations in the majority status of the union during
that period.... Similarly, a settlement agreement
containing a bargaining provision, if it is to achieve its
purpose, must be treated as giving the parties thereto a
reasonable time in which to conclude a contract.
[Emphasis supplied.]
The foregoing language was quoted with approval in N. J.
MacDonald & Sons, Inc., 155 NLRB at 71, which at the
hearing counsel for the General Counsel cited as being
factually close to the present.
For the applicability of the Poole Foundry principle, it is
essential that the employer must have committed himself in
the prior settlement to bargain with the charging union.
Since, contrary to the representations of counsel, there is
no such prior bargaining commitment in the present case,
Poole Foundry is not controlling. In his posthearing brief
the General Counsel disavows reliance thereon.7 The
General Counsel's present contention, not suggested at the
Counsel for the General Counsel may have compounded the situation by
agreeing to putting the prior charge, settlement agreement and notice in
evidence as Joint Exhibit 2, and by his reference to Poole on pp. 23-24 of
the transcript. Said Exhibit, however, was included only for the purpose of
chronological continuity and not as the primary theory of the case." It
should be pointed out that on p. 7 of the transcript counsel for the General
Counsel referred to the charge in Case 24-CA-3754 as "an 8(a)5) charge
alleging that Cadillac had engaged in dilatory tactics in the bargaining
588
CADILLAC MFG. CORP.
hearing, appears to be that the presumption of majority
arising from the 1974 certification of Confederacion has
not been rebutted and therefore Respondent is required to
bargain with that union. Here Respondent appears to rely
primarily on a conflicting claim of representation, rather
than a loss of majority as such.
The earliest indication of Confederacion's loss of
majority is the letter of July 16, 1975, to the Board in which
five or six named mechanics requested decertification. The
General Counsel apparently contends that Respondent
may not rely on this document because no copy was sent to
Respondent and "there was no followup by the signatories
of said letter." Counsel fails to note that the back of the
copy in evidence as a joint exhibit bears a date stamp of
August 4, 1975, in the office of Nachman, Feldstein &
Gelpt. Mr. Feldstein has been counsel for Respondent for
some time and appeared as such in the present hearing.
There is no apparent reason for questioning the date
stamp. Nor is it entirely true that there was no "followup"
of the 1975 decertification request. The fact is that under
date of May 28, 1976, six mechanics employed by
Respondent signed authorization cards for Amalgamated.
Of those six, three had been listed as employees in the 1975
letter and two of them had signed it. Then there was a
statement dated February 16, 1977, in which employees
notified Respondent that "we have withdrawn representa-
tion of us from Confederacion." That notification was
signed by five of the persons who executed Amalgamated
cards on May 28, 1976. Two of them had also signed the
July 16, 1975, repudiation. Thus, there is evidence that in
each of 3 successive years, all after the certification year, a
majority of the mechanics indicated in writing that they did
not want representation by the Confederacion. The July
1975 repudiation probably might not by itself justify
Respondent's withdrawal of recognition more than a year
later. Similarly, Respondent could not advance the Febru-
ary 16, 1977, document as establishing a good-faith doubt
of the Union's majority in October 1976.8 But the 1975
request for decertification of Confederacion, the 1976,
authorizations of Amalgamated, and the 1977 repudiation
of Confederacion, taken together, are undoubtedly suffi-
cient to establish a lack of majority at the present time, so
that it would be improper now to order Respondent to
bargain with the Confederacion, if those documents
represent the employees' free choice, uninfluenced by
misconduct of Respondent.
In any event, the Amalgamated authorization cards are
sufficient in themselves prima facie to warrant Respon-
dent's allegation of a conflicting claim to representation
precluding its continued recognition of Confederacion. 9
negotiations" and proceeded: "The settlement agreement was of an
informal nature and the notice provided for therein was that-well, I need
not recite it. Your Honor. I'll put it in evidence." Poole Foundry was not
mentioned until after Respondent's counsel's opening statement conceding
the existence of the settlement agreement and the subsequent refusal to
bargain.
I But the February 1977 repudiation might well in itself preclude
issuance of a bargaining order at this time. Deblin Manufacturing
Corporation. 208 N LRB 392 (1974).
9 The General Counsel says: "The only evidence in this regard is ... a
letter from Amalgamated [to Respondent) reiterating its request for the
certified unit of mechanics. This letter is dated December 22, 1976. and
although it recites prior requests before and after the October 21, 1976,
National Cash Register Company v. N.L.R.B., 494 F.2d 189
(C.A. 8, 1974).
Of course, if Respondent had solicited the employees'
repudiation of Confederacion and/or their support for
Amalgamated, it could not rely on such employee activities
as showing a loss of majority by Confederacion, a
conflicting claim by Amalgamated, or reasonable grounds
for a good-faith doubt of Confederacion's continuing
majority status. The National Cash Register Company, 201
NLRB 1034 (1973); General Motors Acceptance Corpora-
tion, 196 NLRB 137 (1972); Condon Transport, Inc., 211
NLRB 297, 300 (1974); Sander, Inc. & Zeasel, Inc. d/b/a.
Eden Forest & Garden of Eden Nursing Homes, 213 NLRB
734 (1974); Telautograph Corporation, 199 NLRB 892
(1972); N.LR.B. v. Sky WolfSales, etc., 470 F.2d 827, 830
(C.A. 9, 1972).
The difficulty, however, is that the present complaint
does not allege, and the General Counsel did not offer or
attempt to establish, that the mechanics' defection from
Confederacion and/or their authorization of Amalgamated
was unlawfully caused, encouraged, or influenced by
Respondent. To be sure, Confederacion had filed a charge
alleging that Respondent had unlawfully insisted that the
mechanics join Amalgamated. In settlement of that charge,
Respondent agreed not to discourage membership in
Confederacion or solicit the mechanics to support or assist
Amalgamated, or to interfere with the employees' statutory
rights in any other manner. However, that settlement
agreement, signed by Confederacion as well as the General
Counsel, and approved by the Regional Director, con-
tained an express nonadmission clause, reading: "By
executing this agreement charged party does not admit the
commission of any unfair labor practices."
The prior charge and settlement agreement do not
constitute evidence that the Amalgamated's cards were
tainted.10 As stated in Southwest Chevrolet Corp., 194
NLRB 975 (1972):
The Board has uniformly held that settlement agree-
ments, and consent decrees arising therefrom, have no
probative value in establishing that violations of the
Act have occurred and may not be relied on to
establish either union animus or a "proclivity" to
violate the Act. This approach is founded on both legal
and practical considerations.... Using a settlement
agreement . .. .for inferring unlawful motivation for a
subsequent action would in our opinion jeopardize the
Board's efforts to obtain settlement agreements. [Empha-
sis supplied.]
refusal to bargain, a naked letter of this nature cannot be construed as
objective factors rebutting the presumption." In his opening statement
counsel for the General Counsel said: "Now, after that certification
Amalgamated continued their demands for the mechanics and they
continued those demands even after the informal settlement agreement
which I previously stated on the record concerning the Company's dilatory
tactics." Under the circumstances of this litigation. I find the letter of
December 22, 1976. to be probative evidence that Amalgamated was
demanding recognition as the mechanics' representative.
10 It may be inferred that Confederacion claimed they were tainted since
its charge alleged assistance since May 28, 1976, the date on the cards, by
requinng the employee tojoin Amalgamated.
589
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There is no allegation of post-settlement misconduct and
the settlement agreement has not been set aside. Even
without having the settlement agreement set aside, the
General Counsel could have introduced evidence of
presettlement misconduct as background to explain and
illuminate Respondent's post-settlement conduct. Such
background evidence could properly even cover events
antedating the Section 10(b) cutoff date (Local 613 of the
International Brotherhood of Electrical Workers, AFL-CIO
(M.H.E. Contracting, Inc.), 227 NLRB 1954, fn. 1 (1977);
D. W. Hearn d/b/a/ D. W. Hearn Machine Works, 185
NLRB 736, 737 (1970)) and matters covered by the
settlement agreement (Steves Sash & Door Company, 164
NLRB 468, 476 (1967), enfd. in pertinent part 401 F.2d
676, 678 (C.A. 5, 1968)). But General Counsel has
presented not a scintilla of evidence of misconduct by
Respondent at any time. Cf. Deblin Manufacturing Corpo-
ration, 208 NLRB 392, 401 (1974).
It might be suggested that Respondent's willingness to
settle the prior Section 8(a)(2) charge, particularly with the
posting of a notice embodying the traditional language of a
broad cease-and-desist order, estops it to make defensive
use of the Amalgamated's authorization cards and claims
to representation, which were apparently the basis of
Confederacion's amended charge in Case 24-CA-3754.
But it seems to me that, realistically viewed, use of the
settlement as the basis of an estoppel would be to afford it
probative evidentiary value. In fact, if not in theory,
"[u ]sing [the] settlement agreement" to estop Respondent's
defense in this case would be to use it as the basis "for
inferring unlawful motivation for [its] subsequent action"
in withdrawing recognition, in defiance of the Board's
established rule, as quoted above from Southwest Chevrolet
Corp., supra. Thus, since the prior Section 8(a)(2) charge
and settlement are the only basis in the record for
impugning Respondent's reliance on the Amalgamated
cards as supporting a conflicting claim of representation
and raising a doubt as to Confederacion's continuing
majority, it must be concluded that the General Counsel
has failed to establish that Respondent's subsequent
withdrawal of recognition was violative of Section 8(a)(5).
In his brief, the General Counsel contends that the
Amalgamated cards, dated May 28, 1976, could not justify
withdrawal of recognition on October 21, 1976, since
"Respondent and Confederacion continued to bargain
during the intervening period." Without considering
whether Respondent would be estopped by such interim
bargaining, it is sufficient to note that there is no evidence
in the record that Respondent ever did engage in any
bargaining with Confederacion after May 28, 1976.
In sum, the documentary evidence submitted as joint
exhibits is sufficient to rebut the presumption of Confeder-
acion's continuing majority after the end of the certifica-
tion year and to establish prima facie the existence of a
conflicting claim. The General Counsel did not then
sustain his burden of going forward. Accordingly, for the
foregoing reasons, I find and conclude that the General
Counsel has failed to establish, as alleged in the complaint,
L" Respondent's counsel was apparently not unaware of the implications
of a settlement of a prior 8(a)S5) charge. In requesting an opportunity to file
that Respondent has failed and refused to bargain with
Confederacion in violation of Section 8(a)(5).
D. A Postscript
As shown above, the course of the present litigation was
influenced, if not dictated, by a misconception as to a
crucial fact; i.e., the nature of the charge and settlement in
Case 24-CA-3754. This misconception arose from the
General Counsel's opening statement, reinforced by Re-
spondent's opening statement. It is difficult to say what the
course might have been absent the basic factual misunder-
standing. It is not clear whether the General Counsel
originally intended to present testimony in addition to
documentary evidence supporting the representations
made in the opening statement. His statements, corrobo-
rated by Respondent's counsel, that he had previously
urged Respondent to join in stipulating the case directly to
the Board, without a decision by an Administrative Law
Judge, suggest that he did not contemplate presenting
testimony, at least in his direct case. On the other hand, by
urging that the Administrative Law Judge would be
required to make credibility resolutions, Respondent's
counsel clearly indicated that they intended to present
testimony, although they failed to indicate what credibility
issues they anticipated. As previously noted, Respondent's
counsel have not provided any enlightenment either in oral
argument or in a brief.
Although Respondent's counsel rejected the suggestion
of both counsel for the General Counsel and the Adminis-
trative Law Judge that the matter be stipulated directly to
the Board, it appears to me probable that the truncated
nature of the hearing was occasioned by my indication that
I believed the Poole Foundry doctrine to be controlling on
the facts stated. Accordingly, when, after reading the
record, including the exhibits which I had not had an
opportunity to examine at the hearing after listening to the
opening statements, my impulse was, subject to what
Respondent's anticipated brief might say, to issue an order
to show cause why the record should not be reopened for
full hearing free of counsel's and, consequently, my
misconception of the nature of the prior settlement
agreement, I have carefully considered the possibility that
it might unduly favor the General Counsel to reopen the
record and thus give him a second opportunity to prove the
allegation of the complaint, which he had failed to do at
the first hearing. I eventually concluded that such action
would not be unfair to Respondent since its counsel had
been equally responsible for the factual misunderstanding.
Both attorneys representing Respondent had been person-
ally involved in the course of conduct under scrutiny and
one of them had executed (and presumably negotiated) the
settlement agreement on behalf of Respondent. l
On further consideration of the matter, after receiving
the General Counsel's brief, I have concluded that no
useful purpose would be served by reopening the record for
further hearing. The present record is sufficient to establish
that Respondent had objective evidence constituting
grounds for asserting the existence of conflicting claims to
a brief discussing prior decisions, Respondent's counsel said: "The law that
you cited is not new law to us either. We are not babies in this field."
590
CADILLAC MFG. CORP.
representation and reasonable doubt of Confederacion's
continuing majority. Since the General Counsel has not
suggested that he is prepared to, or desires an opportunity
to, establish by evidence that the support for Amalgamated
or the repudiation of Confederacion was the result of
misconduct by Respondent, I can see no basis for
concluding that a new hearing might alter the result. Under
all the circumstances, it seems to me that the employees
will be best served if they are provided an opportunity now
to express their views in a new election. It is to be hoped
that they will be provided that opportunity in an atmo-
sphere free of improper influences, including what I sense
has been self-interested maneuvering and jockeying for
legal advantage on the part of Respondent and, possibly,
the two unions.
CONCLUSIONS OF LAW
1. Cadillac Manufacturing Corporation; Cadillac Shirt
Corporation; and Western Garments, Inc., collectively,
are, and have been at all times material herein, an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. Confederacion Laborista de Puerto Rico and Amal-
gamated Clothing Workers of America, AFL-CIO, are,
and have been at all times material herein, labor organiza-
tions within the meaning of Section 2(5) of the Act.
3. It has not been established that Respondent has
engaged in any unfair labor practices as alleged in the
complaint.
[Recommended Order for dismissal omitted from publi-
cation.]
591