Gorbea, Perez & Morell, S. en C.

National Labor Relations Board - Board Decisions

Sep 26, 1961

133 N.L.R.B. 362 (N.L.R.B. 1961)

362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gorbea, Perez & Morell , S. en C. and Amalgamated Clothing
Workers of America , AFL-CIO . Case No. 24-CA-1373. Sep-
tember 26, 1961
DECISION AND ORDER
On April 17, 1961, Trial Examiner William Seagle issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and brief, and the entire record in
this proceeding, and hereby adopts the findings, conclusions, and rec-
ommendations of the Trial Examiner.
1. We agree with the Trial Examiner that Respondent violated
Section 8 (a) (1) by impliedly conditioning its promise of benefits to
the employees upon their rejection of the Union. On November 4,
1960, the day on which the Union openly conducted its campaign at
the plant to obtain signed authorization cards, the Respondent as-
sembled all its employees at a meeting to explain its proposed plan
for increasing their income. The Trial Examiner's finding that Re-
spondent knew of the Union's activities that day is supported by the
record, through the remarks of certain supervisors and through the
testimony of an employee that Duprey Lopez, Respondent's director
of operations, stated at the November 4 meeting that any increase
in wages to the employees would have to be held up since the Union
had come in.
The Respondent's conduct after it admittedly had notice of the
Union's claim to majority status clearly indicated its intention to con-
dition increased benefits for the employees upon the maintenance of
the status quo at the plant. Thus, a week after the first meeting and
3 days after the Union's formal demand for recognition was received,
the Respondent again called its employees together and again re-
peated its intention to increase their income. At this meeting, Duprey
Lopez passed around a sheet of paper on which the employees were
asked to indicate their approval or disapproval of the plan. Al-
though the plan made no overt reference to the Union but was instead
conditioned on the adoption of a governmental minimum wage order,
we are satisfied that the Respondent intended, and the employees
133 NLRB No. 42.
GORBEA, PEREZ & MORELL, S. EN C. 363
understood, that the promise of a 10-percent increase above the mini-
mum wage would only be effectuated if no new factor, such as the
Union, was introduced.
After holding the second meeting and distributing a copy of the
plan, the Respondent then solicited the signatures of employees.
Seventy signatures were thus obtained, while no employee indicated
that the plan met with his disapproval.
The continued dangling of its promise to increase employees' wages,
during the period that the employees had evinced an interest in join-
ing the Union; the fact that Respondent felt it desirable to obtain
the signatures of the employees in approval of its plan; and the fact
that no specific date was given when the increases might be effected,
all give rise to the inference, which we draw, that the Respondent
intended to impress its employees that nothing would be done for
them unless they rejected the Union.
2. We agree with the Trial Examiner that Respondent violated
Section 8(a) (5) by refusing to bargain with the Union after it was
duly designated by a majority of its employees. We find no merit
in the Respondent's contention that the authorization cards signed by
the employees were obtained upon the promise that they would be used
only for the purpose of filing a petition for a representation election.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that Respondent, Gorbea, Perez & Morell,
S. en C., a partnership, Santurce, Puerto Rico, its members, agents,
successors, and assigns, shall :
1. Cease and desist from :
(a) Offering its employees economic benefits in order to induce
them to withdraw their support of the Union.
(b) 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 Amalgamated Clothing Workers
of America, AFL-CIO, or any other labor organization of its em-
ployees, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to refrain
from any and 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, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Refusing to bargain collectively with Amalgamated Clothing
Workers of America, AFL-CIO, as the exclusive bargaining repre-
sentative of its employees in a unit consisting of its production and
maintenance employees, with respect to rates of pay, hours of em-
ployment, and other terms and conditions of employment.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Amalgamated Cloth-
ing Workers of America, AFL-CIO, as the exclusive representative
of all employees in the aforesaid appropriate unit, with respect to
rates of pay, hours of employment, and other terms and conditions
of employment, and, if an understanding is reached, embody such
understanding in a signed agreement.
(b) Post at its plant at Santurce, Puerto Rico, copies of the notice
attached hereto marked "Appendix."' Copies of said notice, to be
furnished by the Regional Director for the Twenty-fourth Region,
shall, after being signed by the active partners of the Respondent, be
posted immediately upon receipt thereof and be maintained by it
for 60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable
steps shall be taken to insure that the copies of said notice are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Twenty-fourth Region,
in writing, within 10 days from the date of this Order, what steps it
has taken to comply herewith.
MEMBER RoDGERs took no part in the consideration of the above
Decision and Order.
IIn 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 "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Rela-
tions Board, and in order to effectuate the policies of the National
Labor Relations Act, as amended , we hereby notify you that :
WE WILL NOT offer our employees economic benefits in order
to induce them to withdraw their support from Amalgamated
Clothing Workers of America , AFL-CIO, or any other labor
organization 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-
organization , to form labor organizations , to join or assist Amal-
GORBEA , PEREZ & MORELL , S. EN C. 365
gamated Clothing Workers of America, AFL-CIO, or any other
labor organization of our employees, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any and 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, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
WE WILL, upon request of the Union, bargain collectively with
Amalgamated Clothing Workers of America, AFL-CIO, as the
exclusive bargaining representative of our production and main-
tenance employees with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employment, and,
if an understanding is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All production and maintenance employees excluding office
clerical employees, watchmen, and supervisors as defined in
the Act.
All our employees are free to become, remain, or refrain from be-
coming or remaining members of any labor organization.
GORBEA, PEREZ & MORELL , S. EN C.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
Dated---------------- By-------------------------------------
(Representative ) ( Title)
Dated---------------- By------------------------------- ------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
The complaint charges the Respondent with violating Section 8 (a)( I) of the Act
by promising economic benefits to its employees in order to discourage their union
organizational activities , and with violating Section 8 (a)(5) of the Act by refusing
to bargain collectively with the Union , although it represented a majority of the
Respondent 's employees in an appropriate bargaining unit . In its answer , the Re-
spondent , while admitting the commerce allegations of the complaint , denied the
jurisdiction of the Board , and the commission of the unfair labor practices with
which it was charged.
On January 24, 25, 26, and 27, 1961, William Seagle , the duly designated Trial
Examiner, held a hearing with respect to the allegations of the complaint at Santurce,
Puerto Rico . At the close of the taking of testimony , counsel for the General
Counsel availed himself of the opportunity to argue the issues in the proceeding
orally. Subsequent to the hearing , counsel for the Respondent filed a brief, setting
forth its position.
Upon the record so made, and based upon my observation of the witnesses, I
hereby make the following:
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, Gorbea, Perez & Morell, S. en C., is a partnership, organized
and existing under the laws of the Commonwealth of Puerto Rico, and engaged in
the manufacture and sale of men's clothing. The principal office and place of busi-
ness of the partnership is at Stop 26, Martin Pena, Santurce, Puerto Rico. During
the past year, which is a representative period, the Respondent, in order to conduct
its manufacturing operations, purchased goods and other materials valued in excess
of $100,000, and such goods and materials were purchased and shipped to its plant
from places located outside the Commonwealth of Puerto Rico.
It is apparent that the direct inflow of goods to the Respondent more than satis-
fies the Board's jurisdictional standards. Insofar as the Respondent's objection to
the jurisdiction of the Board is based on the present status of Puerto Rico as a
commonwealth, the objection must be overruled. The Board has held in Xavier
Zequeira, 102 NLRB 874, that it has plenary jurisdiction over labor relations in
Puerto Rico.
II. THE UNION
Amalgamated Clothing Workers of America , AFL-CIO, is a labor organization
that has sought to organize the production and maintenance employees of the
Respondent, exclusive of office clerical employees, watchmen , and supervisory
employees.
III. THE UNFAIR LABOR PRACTICES
A. The background
The attempt of the Union to organize the Gorbea employees was initiated in the
month of September 1960.1 Manuel Menendez, an organizer for the Amalgamated,
made some contact with Gorbea employees through Regina Andrade, the president
of the union local. The most important of these employees was Aurea Cruz, who
had been employed by Gorbea for about 2 years. She worked at sewing buttons
and labels on the clothing manufactured by Gorbea. In September and October,
Menendez talked to almost all of the Gorbea employees outside the factory during
their lunch time, and explained to them that the Union wished to obtain authority to
represent them. On October 19, 1960, Menendez and Aurea Cruz distributed about
100 copies of a handbill to the Gorbea employees, explaining the advantages of union
organization, particularly in relation to the application of the minimum wage.
The evening of Thursday, November 3, a meeting was held at the home of Aurea
Cruz, and among those present were a number of other Gorbea employees, Carmen
Ortiz, Carmen Marrero, and Gloria Marti, as well as three volunteer workers,
Regina Andrade and Ramonita Rivera, who were, respectively, president and secre-
tary of the local union, and Julia Montalvo, who worked at another clothing firm,
Miranda Hermanos, a competitor of Gorbea which was located next door to the
union office. Not only Menendez came to this meeting but also E. B. Gersh, the
International representative of the Amalgamated in Puerto Rico, who explained the
desire of the Union to get the Gorbea employees to sign cards authorizing the Union
to represent them in negotiations with their Employer. Menendez gave Aurea Cruz
60 authorization cards 2 at the meeting, and she took them to the factory when she
went to work the next morning, which was Friday, November 4.
In the course of the morning, Aurea Cruz distributed some of the authorization
cards to the Gorbea employees on the second floor of the factory where the cutting
room, finishing department, and pressing section were located and where she herself
worked, and another employee distributed authorization cards on the third floor of
the factory where the sewing shop was located. During the midmorning coffee
break, which occurred at 9:30 a.m., Aurea Cruz congregated with a group of em-
ployees at a table in a corner of the second floor where the irons were and secured
'Unless otherwise indicated, all dates hereinafter mentioned should be assumed to be
in 1960.
2 Although referred to by all concerned as "cards," they were really sheets of paper
approximately 7 inches long and 5 inches wide which could be folded for mailing to the
Union without the payment of postage. The sheets bore much more printing than is usual
In the case of authorization cards, for in addition to the application for membership
and the authorization of representation, the sheets had printed on them in large letters
two special inducements to applicants: one was the promise that those who joined the
Union without waiting for a contract to be signed would not have to pay initiation fees,
and the other that they would not have to pay dues until after a contract had been signed.
GORBEA, PEREZ & MORELL, S . EN C. 367
their signatures to union authorization cards . In all, 22 cards were signed there.
In addition to signing her own card , and that of another employee who asked her to
-do so , Aurea Cruz witnessed the signature of the other 20 employees . Another
Gorbea employee distributed the union authorization cards on the third floor of the
factory, and the signatures on groups of such cards or single cards were witnessed by
various employees, including Margarita Pomales, Carmen Maria Rodriguez, Maria
Cristina Quiiiones , Miguelina Torres, and Maria Isabel Pefia . All 60 union authori-
zation cards obtained by Aurea Cruz from Menendez were signed that day. She put
the 60 cards in an envelope and turned them over to Menendez the evening of the
same day. As one of the Gorbea employees "upstairs" had asked for five additional
cards, she obtained them from Menendez the same evening . These five cards were
signed by C'iorbea employees on Monday , November 7, and turned over to Menendez
the same day. Menendez turned the 65 cards over to Gersh , who the same day
sent a letter to Luis Gorbea, one of the Gorbea partners , stating that the Amalgam-
ated represented the "vast majority" of the employees in its production and main-
tenance departments , and requesting a meeting with the firm some day during the
week of November 7 for the purpose of negotiating a collective -bargaining agree-
ment.3 This letter of November 7, was turned over to Gorbea 's attorney, Jaime
Pieras, who replied to it under date of November 10, explaining that he was leaving
for the continental United States , but inviting Gersh to meet with him at his office
at 4 p .m. on Friday , November 18. Under date of November 14, Gersh , without
waiting for the meeting, filed a petition for an election . The meeting suggested by
Pieras took place as scheduled in his office on November 18, and there were present,
in addition to Pieras , Perez Diez , Gersh , and Menendez . At this meeting, Gersh
asked for recognition of the Union on the basis of a cardcheck but Pieras , speaking
for Gorbea , stated that he was inclined to advise his client to consent to an election,
but would let the union representatives know definitely at a meeting in the Regional
office, already scheduled for November 22, to discuss their petition for an election.
This led Gersh to protest against a meeting that the Company had held with its
employees at which it had made them promises , such as wage increases , and the
meeting soon broke up on this discordant note . Gersh withdrew his petition for an
election , and under date of November 21, filed an unfair labor practice charge based
on the meeting with the Gorbea employees , and this charge was amended under
date of December 2, to include the failure of Gorbea to bargain collectively with
the Union.
B. The meetings of November 4 and 11
Before meeting with the union representatives , Perez Diez had already taken steps
designed to prevent the unionization of the Gorbea employees . He was certainly
aware of previous efforts towards this end. The Gorbea employees had already
participated in one union election . Moreover, Perez Diez, who had once been
connected with Miranda Hermanos , which had already been organized by the
Union , had been told by the president of the local union in the spring of 1960 that
the Gorbea employees would join the Union , and in September , after the organiza-
tional campaign actually started , he heard from various employees that union
organizers had been outside the factory talking to the Gorbea employees.
However, Perez Diez did not approach the Gorbea employees directly. He
chose for this purpose Gonzalo Duprey Lopez , who had been hired by the firm in
the latter part of July as director of its operations , and who had been sent the
following month to Baltimore , Maryland, for training . He had , however, returned
from the States on October 28, which was just a week before the union authoriza-
tion cards were signed.
With the full knowledge and consent of his Employers , with whom he had dis-
cussed the situation , Duprey Lopez called a meeting of the Gorbea employees on
November 4, the very same day that the 60 union authorization cards were signed.
The meeting took place on the third floor of the factory at 5 p.m., which would be
after the close of work , and the assembled employees were addressed for some 20
or 30 minutes by Duprey Lopez . The Gorbea director of operations did not prove
to be a very candid witness but he admitted that the purpose of the meeting was
to give the employees "certain information" concerning benefits which they could
obtain if they improved production . Pressed a little, Duprey Lopez conceded that
in the benefits plan offered to the employees were included "raises in salary," and
that he spoke to the employees about some percentage above the minimum wage
3 This letter was received by Gorbea on November 8, but it was not called to the atten-
tion of Jose Antonio Perez Diez, another one of the Gorbea partners , until the follow-
ing day.
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that would be given to them . Asked what percentage was mentioned , he replied
that it was 10 percent . However , he attempted to minimize all this by contending
that he was merely repeating to the employees what he had already told them before
he left for the States in August , and that its repetition on November 4, the very
day that the union 'authorization cards were signed, was simply a coincident that
had nothing to do with any knowledge on his part of the circulation of the cards,
of which he did not learn until some days later.
I am willing to believe that before he departed for the States , Duprey Lopez, as
he circulated in the factory , had talked individually to various Gorbea employees
about the benefits that would accrue to them if they increased production . But this
sort of casual conversation was quite different from his addressing all the employees
at an assembled meeting, especially when this address was made the same day as
the union authorization cards were signed.
As for the testimony of Duprey Lopez that he called the meeting on November 4,
in complete ignorance of the circulation of the union authorization cards in the
shop that same day, it is impossible for me to credit this testimony . Duprey Lopez
admitted that he constantly circulated through the shop , and that the "ladies in the
factory talk a great deal and they talk very loud ," and that it was precisely because
of his that he learned of the Union 's activity a few days after November 4. But,
if he then acquired this knowledge in that way , he must no less surely have acquired
the same knowledge on November 4. Moreover , he admitted that he had heard
rumors of union activity before the November 4 meeting , and these rumors could
hardly have failed to include the interesting information concerning the circulation
of the union authorization cards.
As a matter of fact, there are two items of credible testimony that indicate
affirmatively that , when Duprey Lopez called the meeting of the employees on
November 4, he already knew that the union authorization cards had been signed.
Aurea Cruz testified that one of the foreladies from "upstairs," whom she identified
as Pepa, remarked to Dona Angela , another forelady , in her presence : "For 1961
we are going to have two new things here-a new manager and a union." Pepa
also pointed to Aurea Cruz and said : "The meeting was held at this one 's house."
Dona Angela then remarked to Aurea Cruz : "Aurea, you are keeping it to yourself."
Whereupon the latter observed : "Well, we were going to tell you, but later." Maria
Cristine Quiiiones , one of the Gorbea employees who worked on men 's pants on
the second floor of the factory, testified also that Duprey Lopez, in the course of
his remarks at the meeting of November 4 , told the employees that "in accordance
with our work or the quality of our work we would have a percentage, but then
he said that since the union had come in he could do nothing ." [ Emphasis supplied.]
This remark is wholly inconsistent with any assumption that Duprey Lopez was
ignorant of the signing of the union cards.
But, if it were possible to believe otherwise, this possibility must be regarded as
definitely eliminated by the testimony relating to a second meeting of the Gorbea
employees called by Duprey Lopez on November 11, exactely a week after the first
meeting of November 4, and again with the full knowledge and consent of his
Employers . By this time both Duprey Lopez and his Employers admittedly knew-
officially and unofficially--of the authorization cards obtained by the Union on
November 4. Nevertheless , they did not hesitate or scruple to call a second meeting
of the employees on November 11, the purpose of which appears to have been to
formalize the plan informally outlined by Duprey Lopez in the meeting of No-
vember 4. At the November 11 meeting, which was held at 3 p .m., Duprey Lopez
passed around a paper on which the employees present were asked to indicate their
approval or disapproval of the plan. The kinship between this plan and the plan
orally discussed with the employees on November 4, is apparent from the terms
of the plan, which consisted of five paragraphs, as follows:
1. To pay the new minimum wages of 0.50 (fifty ) cents per hour and of
sixty-eight cents (0.68) per hour for the manufacture of pants and suits, re-
spectively , as soon as said minimum wages become effective.
2. To adjust the price of each operation in such manner that each operator
may cover with her daily quota at least the minimum wage in her respective
phase of the operation.
3. To increase the value of each operation 10 percent over the above
adjustment.
4. In the case of operators who have to work by the minimum wage, the
latter shall also be increased 10 percent.
5. To improve the general working conditions in the shop so that each
operator may increase her efficiency by better using her time and effort.
GORBEA, PEREZ & MORELL, S. EN C. 369
The memorandum recording this plan also included the following statement:
The meeting ended in the midst of the most favorable atmosphere of cordial-
ity among operators, supervisors and director.
Attached to the plan were three sheets on which the employees present were to
indicate their approval or disapproval of the plan. Duprey Lopez obtained 79
approvals and not a single disapproval. Of the 79 employees who approved the
plan, at least 41 had also signed union authorization cards, as had almost certainly
8 others 4 It is apparent, therefore, that the vast majority of the Gorbea employees
who had signed union authorization cards either on Novembor 4 or 7 approved the
benefits plan submitted to them on November 11. Duprey Lopez had every reason
to be satisfied with the result of the two meetings which he had called.
C. The failure to bargain
The answer to the further question whether the Respondent violated not only
Section 8(a)(1) but also Section 8(a)(5) of the Act depends upon the validity of
the 65 authorization cards obtained by the Union. The parties are agreed that the
unit appropriate for the purpose of collective bargaining consists of all the produc-
tion maintenance employees of the Respondent, exclusive of office clerical employees,
watchmen, and supervisory employees, and 1 find this unit to be appropriate. Did
the Union represent a majority of the employees in this unit when it requested
Gorbea to bargain collectively with it?
The payroll of Gorbea for the week ending November 9, 1960, lists 104 em-
ployees. Of these, two employees, Francisco Astacio and Ismael Agosto, are
watchmen, and three others, Angela Menar, who is in charge of pressing; Josefa
Gonzalez de Nieves,5 who is in charge of a section of the sewing shop where pants
are made; and Clara D. Ortiz, who is in charge of a section of the sewing shop
where coats are made, are clearly supervisory employees. As watchmen and super-
visory employees are excluded from the agreed bargaining unit, the number of
employees in the appropriate bargaining unit would be 99 (104-5). In addition,
there are two employees on the payroll whose status is disputed, namely, Arturo
Miranda, who appears as "Chief Dispatcher" on a later list of employees supplied
by the Respondent, and whose duties apparently include selling in addition to super-
vising an assistant dispatcher; and Ramon Suarez, the chief or "oldest" of two cutters.
In view of the conclusions I have reached, it is unnecessary for me to determine
whether Arturo Miranda and Ramon Suarez are supervisory employees, If the 65
union authorization cards were otherwise valid, it is clear that the Union would
have represented considerably more than a majority of the Respondent's employees
in the appropriate bargaining unit, whether that unit included 99 or 97 employees.
It is the position of the Respondent, however, that the signatures to the union
authorization cards were obtained under circumstances that indicate that the em-
ployees who signed them did not wish the Union to represent them. Counsel for
the Respondent pictures the Gorbea employees as a group of ignorant women who
could not understand the purpose of union organization, who were suddenly and
without prior explanation asked to sign union authorization cards and subjected to
extreme psychological pressure to get them to do so, and who signed the cards
during working hours without reading them after being told that the purpose of their
signing the cards was to enable an election to be held at which they would be free
to vote for or against the Union.
This picture is heavily overdrawn. Counsel for the Respondent specifically asserts
that the Union's organizer "never explained the purpose of the cards to the em-
ployees," and that the employees were approached for the first time on November 4,
about signing union cards. These assertions are contrary to the facts and to the
clear and uncontradicted testimony of Manuel Menendez, the union organizer. The
employees were not experiencing a union organizational campaign for the first time,
for they had already voted in a previous union election. Handbills explaining the
purpose of union organization had also been distributed to them less than 3 weeks
before they signed the union authorization cards. Moreover, this is not the only in-
doctrination which they had received. From the month of September to December
1960, Menendez was outside the Gorbea factory 4 or 5 times a week, and explained to
60 or 70 of the employees the purpose of signing union authorization cards, which
was to permit the Union to represent them with their Employer. When he testified,
4 There are slight misspellings in these names, or the middle initial is omitted.
8 This forelady is the same one as is referred to in the transcript as Josefa Gonzales.
624067-62-vol. 133-25
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Menendez was specifically asked : "Did they (the employees) understand what you
explained to them?", and he replied: "I think they did." The presence of Menendez
outside the Gorbea factory is attested by one of the Gorbea partners, Perez Diez,
who admitted that he knew of the presence of union organizers outside the factory
in the months of September, October, and November.
It is true that 60 of the 65 union authorization cards were all signed on the same
day but it was not a hurried affair. It was only the culmination of a long effort.
The signing seems to have commenced at 9:30 a.m., during the midmorning coffee
break,' and to have proceeded until at least after lunch,7 which would be a period
of almost 4 hours. While some of the employees signed cards while working, and
one of them seemed to complain about this,8 most of the cards appear to have been
signed during free time, and to have received adequate consideration. Indeed, at
least two of the employees seem to have been hard to convince.9
Of course, it is true that once a good many employees sign union authorization
cards a bandwagon psychology tends to develop. Thus four of the Gorbea em-
ployees, Carmen Maria Rodriquez, Miguelina Torres, Francisca Gauthier, and
Rafaela Bruno , testified that one of their reasons for signing a union authorization
card was out of a sense of "fellowship," and other expressed similar thoughts-Maria
Luisa Negron and Paquita Seaton signed to please their fellow workers, and Amparo
Torres to avoid problems with her fellow workers. But bandwagon psychology is a
familiar phenomenon in all group activity, and represents nothing illegitimate in it-
self. In view of this psychology, it is not at all surprising that most of these same
employees should have testified that they signed the union authorization cards with-
out reading them.
In assessing the understanding of the Gorbea employees of the situation confront-
ing them on the day almost all of them signed the union authorization cards, and
of probing their motives in signing them, I agree with counsel for the 'Respondent
that it is important to take into consideration that they were simple women and
girls who had had little education.10 But I do not draw the same conclusion as he
does from their limitations. If their lack of education and simplicity were factors
in their behavior, they were not-possibly with a few exceptions-so ignorant or so
simple as not to understand the purpose of a union. Unions do not exist, after all,
primarily for the benefit of high school and college graduates, nor are the benefits
of the National Labor Relations Act to be enjoyed exclusively by them. If the
Gorbea employees understood enough to have voted in a union election, they must
necessarily have understood what a union was for, and if they were sophisticated
enough to act as witnesses to the signatures of fellow employees, they must have
understood the activity in which they were engaged.
From their supposed lack of sophistication I draw the conclusion rather that they
could less easily withstand the unfair labor practices to which they were subjected.
They became readier victims of their own fears and Duprey Lopez' illusory promises.
In other words, it was comparatively simple to intimidate these credulous women and
to get them to withdraw their support of the Union. What followed was quite in-
evitable Having changed sides but being deficient in the ability to invent plausible
explanations of their motives and conduct, they attempted to color their testimony at
the hearing in favor of their employer rather than in favor of the Union, and in-
volved themselves in absurdities and contradictions.
The critical question is whether the Gorbea employees who signed union author-
ization cards were actually told that the purpose of the cards was to make it neces-
sary to enable an election to be held at which they would be free to vote for or
against the Union. The fact that they may have believed that such was .the purpose
of the cards is wholly immaterial. Seven witnesses for the General Counsel and
four witnesses for the Respondent testified with respect to their motives in signing
the union authorization cards, but the testimony of most of them is confusing in the
extreme.
8 Aurea Cruz so testified
' Francisca Gauthier signed her card during her lunch time, and Maria Isabel Pella
signed her card at 1:15 p in
s Miguelina Torres testified that she read the union authorization card "quickly"
When she was asked , "Did you read it so quickly that you did not understand what it
meant 9" she replied "I could not understand it-because I read it during working hours !"
0 Maria Luisa Negron testified that she finally signed her card'to put an end to certain
"bothersome remarks" that were being made to her Amparo Torres asked Gloria Marti,
who worked next to her machine on the third floor, to explain the purpose ofrthe card to
her but."still dissatisfied, she went down to the second floor)to talk to Aurea Cruz about it.
10A few of them testified that they had attended school only,up to -the sixth or seventh
grade.
GORBEA, PEREZ & MORELL, S. EN C. 371
The testimony that is the most important in this connection is that of Aurea Cruz,
since she was the undoubted leader of the union campaign . She clearly and credibly
testified that she told the employees who signed union authorization cards that
"the purpose was to see whether we wanted to join the union, to get the union into
the factory." While Menendez discussed with her the possibility that the employer
might request that an election be held,ii she did not discuss this possibility with the
employees themselves at the time the union authorization cards were signed. She
testified rather that it was not until a few days after the cards had been signed, which
would have been also after the first meeting of the employees held by Duprey Lopez,
that the employees started asking whether there would be an election. It seems
that this question was raised by some of the employees at a union meeting that was
held for them, and most of those who were present at the meeting told Aurea Cruz
that they had "expected an election to be held." [Emphasis supplied.] This testi-
mony was elicited by counsel for the Respondent himself in cross-examination of
Aurea Cruz. This testimony does not establish, of course, that they were told that
an election was to be held.
Equally clear , unequivocal , and convincing is the testimony of another witness
for the General Counsel, the same Maria Cristina Quinones, who remembered that
Duprey Lopez had said at the November 4 meeting that "since the union had come
in he could do nothing." She had worked for Gorbea about 3 years and was em-
ployed in making men's pants on the second floor of the factory. Her testimony
is of particular importance for the very reason that she could read and write Spanish
only "a little bit," and she read only "parts" of the union authorization card.
Nevertheless, she demonstrated that literacy is not a condition precedent to union
affiliation, for she understood perfectly well what she was doing in signing the union
authorization card. Thus, she testified on her direct examination:
Q. When you signed this union card, did you know what you were signing?
A. I knew that what I was signing was a card so that the union could rep-
resent us before the employer.
This testimony was in no wise shaken during her cross -examination . She then
stated her reason for signing the union authorization card even more strongly.
"I signed this card," she testified, "because that was the union that was going to
represent us, so, for my benefit, as well as for the benefit of the others, I signed it."
Moreover , when she was explicitly asked during her cross -examination : "When you
signed this card, did you want a union to represent you or did you want an election?"
she replied: "A union that would represent us." Incidentally, Maria Cristina Qui-
nones was also one of the employees who signed the union authorization card during
working hours, thus demonstrating also that this was not necessarily an obstacle to
her understanding of what she was doing.
The testimony of Margarita Pomales, who did handwork on the sleeves of men's
jackets, makes it clear that, while she believed that an election would be held, no
statement to this effect was made to her as an inducement to get to sign a union au-
thorization card. Margarita Pomales was a simple soul who could not understand
such sesquipedalian expressions as "union organizational activities" but she under-
stood perfectly well what signing a union card meant. With respect to this she first
testified as follows:
Q. Did you fully understand the purpose of signing the cards, as well as your
sister and the other person who signed?
A. Well, I can say I knew what it was about, I cannot speak for the others.
Q. According to your own understanding, what was the purpose for signing
a union authorization card?
A. I do not understand the question very well, but I believe that when we
signed those cards it was for the purpose of bringing a union and for the hold-
ing of an election.
Pressed-for further elucidation, the witness declared that she signed the card "on
condition that there be an election to decide," and also "to see if we could accept the
union , I mean to determine what would be decided among all of us, because, you see,
we are many." On cross-examination, she testified further as follows:
u I find no contradiction in the testimony of Menendez concerning the question whether
he discussed the possibility of an election with the employees prior to November 4, as
contended by counsel for the Respondent When Menendez testified that he did not dis-
cuss such a possibility with them prior to this date, lie was obviously referring to the
rank-and-file employees whom he was interviewing outside the Gorbea factory He readily
admitted that he discussed this possibility with Aurea Cruz prior to November 4.
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q At the time you signed this card , did you know you would have an op-
portunity to vote for or against the union?
A. Well, no. We signed the card , but we did not know that.
Q. Did you know that an election was going to be held, as you stated
before?
A. Well, that is what I believed. [Emphasis supplied.]
The testimony of Maria Isabel Pena , a very recent Gorbea employee , who sewed
the sides of jackets on the third floor of the factory , indicates that nobody really
told her anything about the holding of an election . Her testimony is one of the
best examples of the contradications in which some of the witnesses involved them-
selves. At first , she testified as follows:
Q. Did you understand what you were doing at the time you signed the card?
A. Well, I signed the card after I was told about some of the benefits that the
union would give us, but they also told me that if I would not be wholly com-
mitted to the union but would be given an election.
Q. Who spoke to you about any election?
A. Nobody told me that directly but word got around, you see, we would
speak to each other and those were the rumors that were heard. [Emphasis
supplied.]
At another point in her testimony , she declared : "When I asked about the card,
what were we going to sign , then they told me that an election would come later."
Finally, she testified : "Up to a certain point I signed because I was told that the
purpose was good, but I really did not know, or directly know what it was about."
Even more extraordinary was the testimony of Miguelina Torres, who had worked
for Gorbea for 13 years , and who at the time of her testimony was engaged in sewing
on zippers . She began by asserting that nobody explained the union card to her.
Thus, when she was asked : "Did anybody explain to you what was the purpose of
signing this union card which I am showing to you and which you admit you signed
voluntarily?", she replied : "No, nobody did." But a few seconds later when she was
asked who handed the union card to her, she replied that it was handed to her by a
fellow worker named Carmen Marrero . She was then asked: "Did Carmen Marrero
talk to you in connection with this card when she handed it to you?", and she replied:
"Well, she told us that it was for the union and that it was for an election , that we
were to attend an election ." Finally, when she was asked whether she knew that she
was signing a card authorizing a union to represent her, she replied : "I thought they
were going to hold an election." [Emphasis supplied.] Miguelina Torres made a
distinction, apparently , between having something explained to her and having some-
body tell her something!
Of the four witnesses who were called by the Respondent and who testified with
respect to their motives in signing the union authorization cards, three witnesses,
Paquita Seaton , Rafaela Bruno, and Amparo Torres , testified in substance that they
were told that the purpose of the cards was to permit an election to be held; and the
first two named also testified that they signed the card out of fellowship . All three
of these witnesses signed the card without reading it, and it appears that Amparo
Torres sought an explanation of the purpose of the card from Gloria Marti and
Aurea Cruz after she had signed it.
Among the Respondent 's witnesses was also Francisca Gauthier, a 47-year-old
grandmother who had been employed by Gorbea for 7 years and who worked at
finishing. She testified that she signed a union authorization card , although she did
not understand anything about unions at all, and that she was among the last to
sign a card, and did so "because of fellowship ." Her testimony is of particular in-
terest because prior to her appearance as a witness she had made a statement under
oath to a Board agent 12 to the effect that she had signed the union authorization card
voluntarily and with full knowledge that the purpose of the card was to authorize the
Union to represent the employees in collective bargaining with the Employer. How-
ever , she testified at the hearing that she did not read the statement at the time
it was prepared for her signature because she did not have her eyeglasses with her;
that although the statement was read to her she did not understand all the phrases
which is contained ; and that at the time she signed the statement "it was lunch time
and it was late and I did not realize fully." The testimony of Francisca Gauthier
only illustrates the effect of the Respondent 's unfair labor practices on the witnesses.
I believe that she told the truth in her affidavit rather than at the hearing. However,
it is significant that she did not undertake to testify that she signed the union authori-
" The statement was subscribed and sworn to December 28, 1960.
GORBEA, PEREZ & MORELL, S. EN C. 373
zation card because she had been told that it was only to permit an election to be
held.
As a substitute for further testimony, which would have been repetitious, the
parties stipulated that, if 51 of the Respondent's other employees were called as
witnesses by it, they would testify substantially as follows:
that although they know how to read Spanish, they did not actually read
the union card they signed, but signed the same without reading it because they
understood from rumors among the employees that the purpose of signing the
cards was to hold an election and that if they did not sign the cards on Novem-
ber 4, 1960, then later on they would have to pay initiation fees, which they
would not have to pay if they signed the cards on November 4; that they did not
believe that by the signing of the cards the Union was going to represent them,
but signed the cards in order to please some fellow workers who asked them to
sign said cards and for the reasons above stated, to wit: to have an election and to
avoid payment of any initiation fee in case the Union won. ...13
The stipulation was made subject to the understanding that "by the making of the
stipulation the General Counsel does not concede the truth of the testimony and
that it is to be received by the Trial Examiner solely to avoid the presentation of
culmulative testimony by the respondent."
This stipulation does not greatly alter the posture of the case. If anything, it
favors the conclusion that the Respondent's employees who signed the union author-
ization cards knew what they were doing, and that no misrepresentations were made
to them by those employees who were actively soliciting their signatures. In the
first place, the stipulation tends to establish that the vast majority, if not almost all,
of the employees who signed the union authorization cards were literate. In the
second place, the stipulation stops far short of amounting to an agreement that the
51 employees covered by it would testify that a representation was made to them
by the employees who were soliciting signatures to the union authorization cards to
the effect that the purpose of the cards was only to permit an election to be held.
On the contrary, the stipulation is phrased in terms of the rumors heard by the
employees, and the motives which actuated them in signing the union authorization
cards. The record as a whole, moreover, confirms this.
The burden of proving that the Union on November 7 represented a majority
of the Respondent's employees rests, of course, upon the General Counsel. But
having established that a majority of such employees in the appropriate bargaining
unit signed union authorization cards which plainly authorized the Union to repre-
sent them, the burden of proving that such authorizations were obtained by fraud
or misrepresentation, or were otherwise invalid, shifted to the Respondent. This
burden has not been met. The fact that many of the Respondent's employees may
not have taken the trouble to read the union authorization card before signing them
does not in itself detract from the force and effect of their signatures. It is a fact
of common experience that many persons sign legal documents either without reading
them at all or without reading them very carefully, and the courts have always held
that it is immaterial.14 To hold otherwise would be subversive of the very principles
upon which the obligations of contract rest. It is equally immaterial with what
motives or expectations a person signs a legal document, and hence it makes no
difference that many of the Respondent's employees may have signed the union au-
thorization cards out of fellowship, or to please fellow workers, or for a similar rea-
son, or in the expectation that an election would be held. It is also immaterial that
the Union, in order to secure signatures to the authorization cards, agreed to waive
initiation fees.is
I am aware that in the recent case of Englewood Lumber Company, 130 NLRB
394, a majority of the Board held that, when employees were told that the union
authorization cards were necessary to get a Board-supervised election , "considering
only what the employees were told, and not what may or may not have been their
" The stipulation also covered the subject of Duprey Lopez' talks with the employees in
July and August before he left for Baltimore, and the meetings with the Gorbea em-
ployees on November 4 and 11. The substance of this part of the stipulation was that
on all these occasions he spoke of the possibility of wage increases if efficiency was im-
proved but that prior to leaving for Baltimore he only spoke to the employees individually.
v See Corbin on Contracts (1960), section 607; 12 American Jurisprudence 628-629.
u In N.L.R.B. v Irving Taitel, Ruth Taitel and Jerome Taitel , d/b/a I. Taitel and
Son, 261 F. 2d 1 (C.A. 7), the court held that the waiving of such fees during the organiza-
tional period "does not smack of coercion but rather of promotional persuasion."
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
subjective reaction to what they were told, we do not think that it can reasonably be
said that the employees by their act of signing authorizations, thereby clearly mani-
fested an intention to designate the Union as their bargaining representative." 16 But
I do not understand the Board to hold that rumors can take the place of explicit
representations, assuming that such rumors were current at the time the union au-
thorization cards were signed. Actually, I am convinced that the talk about a Board
election followed, rather than preceded, the signing of the union authorization cards.
I hold, therefore, that on November 7, the Union represented a majority of the
Respondent's employees in the appropriate bargaining unit.17 It is true that there
is little doubt that the union lost its majority status shortly thereafter as a result of the
Respondent's unfair labor practices. It is established on the highest authority, how-
ever, that when a union has lost its majority status as a result of unfair labor practices
of the employer, the employer may, nevertheless, be ordered to bargain collectively
with the union.18
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)i(1) and (5) of the Act, I shall recommend that the
Respondent cease and desist from such practices, and take certain affirmative action
to effectuate the policies of the Act. As I believe that the Respondent's unfair labor
practices are sufficiently broad in scope to warrant an order directing the Respondent
to cease and desist from infringing the rights guaranteed to its employees by Section 7
of the Act, I shall recommend the issuance of such an order.
Having found that the Respondent has refused to bargain with the Union in vio-
lation of Section 8(a)(5) of the Act, 'I shall recommend that the Respondent be
ordered to bargain with the Union at its request as the exclusive representative of the
Respondent's employees in the unit that I have found to be appropriate.
As the record suggests that a small number of the Respondent's employees may
not be literate, I shall recommend also that the Respondent be directed not only
to post but to read to its employees, the notice marked "Appendix."
CONCLUSIONS OF LAW
1. The Respondent, Gorbea, Perez & Morell, S. en C., is 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
within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees of the Respondent, exclusive of
office clerical employees, watchmen, and supervisory employees, constitute a unit
appropriate for the purpose of collective bargaining within the meaning of Section
9(b) of the Act.
4. At all times since November 7, 1960, the Union has been the exclusive repre-
sentative of all the employees in the aforesaid unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the Act.
5. By refusing to recognize and deal with the Union as such representative, the
Respondent has engaged in and is engaging in an unfair labor practice within the
meaning of Section 8(a) (5) of the Act.
6. By assembling its employees on November 4 and 11, 1960, in meetings held in
its factory, and by offering them economic benefits in order to induce them to with-
draw their support on the Union, the Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
[Recommendations omitted from publication.]
16 But compare N.L R.B., v. Stow-Manufacturing Co, 217 F . 2d 900 (C.A. 2).
17 As the Union on this date had a majority of at least 15, I need not consider whether
}.the few' employees who -may have been subjected to what one of them described as
"bothersome remarks" can actually be said to have been coerced
1s See Franks Bros. Company v. N L R.B., 321 U.S. 702