Henry I. Siegel, Inc.

National Labor Relations Board - Board Decisions

Jun 16, 1967

165 N.L.R.B. 493 (N.L.R.B. 1967)

HENRY I. SIEGEL, INC.
Henry I. Siegel , Inc. and Amalgamated
Clothing Workers of America , AFL-CIO.
Henry I. Siegel , Inc. and Amalgamated
Clothing Workers of America , AFL-CIO,
Petitioner . Cases 28-CA-1251 and 28-RC-1326.
June 16,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND JENKINS
On November 29, 1966, Trial Examiner Wallace
E. Royster issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. He further found that Respondent had not
engaged in certain other unfair labor practices
alleged in the complaint and recommended
dismissal as to them. The Trial Examiner also found
merit in certain objections to the election of July 2,
1965, and recommended that the election be set
aside. Thereafter, Respondent and the Charging
Party each filed exceptions to the Decision and
supporting briefs. The General Counsel filed cross-
exceptions and a supporting brief; Respondent filed
an answering brief.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, the National Labor
Relations Board has delegated its powers in
connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, cross-
exceptions, briefs, and the entire record in the case,
and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, as modified
below.
1. We do not adopt the view of the Trial Examiner
that the objections to the election filed at the
Phoenix, Arizona, Resident Office of Region 28 were
not filed "with the Regional Director" within the
meaning of the Board Rules." We otherwise agree
with the Trial Examiner's findings with respect to
the timeliness of the objections filed by the Union'
and with his view that his ruling as to the Phoenix
filing had only an "academic" effect in light of the
timely filing at Albuquerque, New Mexico.
i The Respondent has requested oral argument The request is
hereby denied as the record and the briefs adequately present the
issues and the positions of the parties.
See Sec. 102.69(a) of the National Labor Relations Board
165 NLRB No. 56
493
2. We adopt the recommendation of the Trial
Examiner that the July 2, 1965, election should be
set aside because of the conduct found to be
objectionable by him. We do not, however, find it
necessary to rely upon the speech of July 1, by
Respondent President Siegel in finding violations of
the Act or as a ground for setting the election aside;
we, therefore, do not adopt or pass upon the Trial
Examiner's findings as to the contents of that
speech.
3. We adopt the findings of the Trial Examiner
that Respondent's floorladies, Henrietta Diaz, Lily
Rodriguez, Laura Miller, and Virginia Zapata, made
threats of reprisal to employees should the Union
prevail in the election, thereby violating Section
8(a)(1) of the Act. We also adopt his finding that
Respondent's published restriction on eligibility in
its insurance plan to "non-union" employees violates
Section 8(a)(1) of the Act.
4. The complaint alleges that Respondent further
violated Section 8(a)(1) of the Act by failing to
disavow statements appearing in a leaflet distributed
to its employees and in a newspaper advertisement
in the local newspaper. The Trial Examiner
concluded that Respondent had not violated Section
8(a)(1) in these respects, as it was not responsible for
the conduct or called upon to disavow it. We
disagree.
As set out more fully by the Trial Examiner, the
community of Eloy, Arizona, has a population of
about 5,400. In 1958, local businessmen formed the
Eloy Development Corporation, sold stock,
purchased 40 acres of land, and constructed a plant.
Respondent leased the plant and began operations in
the new factory in October 1964. When the Union's
organizational activities began at Respondent's plant
in the spring of 1965, local residents (principally
businessmen, but also a clergyman) engaged in an
antiunion campaign directed to employees which
featured the argument that the plant would close if
employees selected the Union. This community
campaign was found by the Trial Examiner to have
precluded the holding of a fair election, a finding we
have adopted.
William Knapton, who had been prominent in
forming the Eloy Development Corporation, formed
a committee (Citizens' Committee for a Better Eloy)
to engage in antiunion activities. Respondent first
became aware of Knapton's committee when
Knapton talked to Respondent's plant manager,
Greengrass, about Knapton's plans to combat the
Union. They testified that Knapton asked
Greengrass for information and assistance, and that
Greengrass declined to be of assistance. Also, one of
Respondent's supervisory employees signed a
Rules and Regulations and Statements of Procedure , Series 8, as
amended
i Amalgamated Clothing Workers of America, AFL-CIO, the
Charging Party in Case 28-CA-1251 and the Petitioner in Case
28-RC-1326.
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
document supporting the committee; but as this
supervisor apparently never did more, we rely upon
her participation to this extent only as serving to
establish Respondent's knowledge of the
committee's campaign.
Shortly before the election, Knapton had 1,500
handbills distributed in Respondent's parking lot
and throughout the community of Eloy. The
handbills warned that if the Union won the election it
would ask for higher pay and lower quotas,
Respondent would not agree, a strike would follow,
and the strikers would be replaced. The handbills
also made the point that the Respondent would be
better off to use its Eloy plant as a warehouse if costs
rose above the level of its other plants. Plant
Manager Greengrass testified that he found one of
the leaflets on his car one evening, thus removing
any question as to Respondent's knowledge of the
nature of the campaign.
About a week before the election, the Pinal
County Enterprise contained an advertisement
placed by Knapton's committee. This advertisement
warned that Respondent's plant might be converted
to a warehouse operation if unionized, and recited
violence which had accompanied union activities
elsewhere in Arizona.
Like the Trial Examiner, we view the issues raised
by the 8(a)(1) allegations based on the leaflets and
advertisement as turning upon Respondent's
responsibility for the propaganda, for we have no
doubt that the content of these documents are
otherwise violative of Section 8(a)(1). We find,
contrary to the Examiner, that Respondent violated
Section 8(a)(1) by its failure to disavow the threats to
employee job security contained in the leaflets and
advertisement.
We do not quarrel with the Examiner's view that
Eloy businessmen sought to advance their own,
rather than Respondent's, interests by combating
the Union as they did. What existed here was an
"overlap of financial interests4 which led both
Respondent and the community, specifically the
committee, to seek the same goal by the same
means. Respondent's failure to disavow fixes its
responsibility here because of the close relationship
between Respondent and community leaders, such
as Knapton, Respondent's knowledge of the leaflet
distribution and the advertisement, and the fact that
the day before the election Respondent specifically
took up the "warehouse" theme and repeated this
threat to its employees. Respondent's employees
would reasonably form the impression that the
a Amalgamated Clothing Workers of America, AFL-CIO v
N L R B., 371 F 2d 740, (C A. D C.), Dec 15, 1966, enfg . Hamburg
Shirt Corporation , 156 NLRB 511
/bid
" See Amalgamated Clothing Workers v. N L R B , supra, The
Colson Corp v N L R B , 347 F 2d 128 (C A 8), cert. denied 382
U S. 904, enfg 148 NLRB 827
committee spoke for Respondent in its similar
propaganda.
This case is one of a class where exists "a
symbiotic [economic] relationship of town and
company"5 and where both groups engage in parallel
antiunion campaigns, the community's being the
more flagrant and coercive. Under all of the
circumstances here, we find that in this case
Respondent had an obligation to disassociate itself
clearly from certain aspects of the community's
campaign; Respondent's failure to do so, and its use
of similar, and sometimes identical, appeals
warrants a finding that Respondent adopted and
affirmed that campaign and thereby violated the
Act.6
5. The Trial Examiner found that it is necessary
to remedy the violation of Section 8(a)(1) in this case
by the issuance of a bargaining order. In this
connection, however, the question is not whether a
fair election can ever be held in Eloy, Arizona-the
Trial Examiner expressed the view that it probably
could not-but the more limited question of whether
Respondent, by having precluded the holding of a
fair election, has rendered it necessary for the
Board, in order to effectuate the policies of the Act,
to remedy the 8(a)(1) violations by issuance of a
bargaining order. We agree with the Trial Examiner
that this is an appropriate case for the issuance of an
8(a)(1) bargaining order and adopt his
recommendations to that effect.
We also adopt, for the following reasons, the Trial
Examiner's finding that the Union had been
designated as the bargaining representative by a
majority of Respondent's employees at the time of
the election. There is no question but that 113
employees in the unit of 182 signed the simple and
unequivocal authorization cards involved here.'
Given this situation, it is settled that a signed card is
not invalidated by an employee's misconceptions of
its operative effect. Misrepresentations by solicitors
that the securing of a Board election was the only
purpose of the cards must be established to
invalidate such cards.8 Respondent attacks the
majority finding largely upon the ground that the
testimony and affidavit of Union Organizer Wilma
Robertson, who solicited many of the cards,
demonstrates that a Board election was the only goal
of the organizing campaign. Respondent here
misconceives the test of misrepresentation
applicable to such situations, for it may be conceded
that the Union's goal was an election, as evidenced
by its failure to demand recognition, but that is not
' The Cards stated, in their entirety, in both English and
Spanish, that
I hereby designate the AMALGAMATED CLOTHING WORKERS
OF AMERICA, AFL-CIO, to represent me for the purpose of
collective bargaining to get better wages, hours and working
conditions in my shop
Cumberland Shoe Corporation, 144 NLRB 1268, enfd 351
F.2d 917 (C A. 6)
HENRY I. SIEGEL, INC.
evidence that employees were beguiled into
believing that the cards were not what they appear to
be but were instead only authorizations for an
election. Thus, while Robertson clearly
communicated to employees the election goal of the
organizing campaign, it is equally clear that she also
read the cards to solicited employees rather than
abandoning or ignoring the unequivocal
authorization stated on them. Accordingly, we do not
find that Robertson's testimony or affidavit
establishes that she represented to employees that
the only operative purpose of the authorization cards
was to secure a Board election.
Respondent also points to testimony by employees
Cortez, Cooper, and Flores as demonstrating that
employees signed the authorization cards upon
representations that the cards were to be used only
to secure an election. We have examined the
testimony of Cooper and Cortez and find no support
in it for a finding that misrepresentations as to the
purpose of the cards were made by Robertson. The
testimony of Flores that Robertson told him that the
cards would not bind employees can be construed in
isolation as a repudiation of the authorization
function of the cards. This testimony is unclear," but
we shall not include the card of Flores in
determining the majority status issue.
We have also examined the testimony of
employees Emilia Gaitan, Jane Galiviz, Lupe Gaitan,
Mary Galiviz, and Elita Martinez, who between them
solicited some 35 other employees to sign
authorization cards. Each of these employees
testified that she was told by Robertson (or another
solicitor) and/or told employees she solicited that the
card "was for the Union to represent us" or words to
that effect, with the term "represent" involved in
each employees' testimony. This testimony renders
untenable Respondent's contention that the Union's
organization efforts were conducted in such a way as
to negate the effect of the employees' signatures
upon the authorization cards
For the above reasons, we find that the Union was
the majority representative of Respondent's
employees in the appropriate unit at the time of the
election.' 0
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Henry I. Siegel,
Inc., Eloy, Arizona, its officers, agents, successors,
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order.
IT IS FURTHER ORDERED that the petition for
certification in Case 28-RC-1326 be, and it hereby
is, dismissed, and that all proceedings held
thereunder be, and they hereby are, vacated.
495
"The question of whether Respondent's counsel exceeded
permissible limits in interrogating employees was an issue
litigated at the hearing It was in the context of this issue that
Flores testified as to what lie told Respondent's counsel
concerning what Robertson told him Thus, his testimony on this
point is not very clear
"' Member Brown concurs in this finding for the reason that in
his opinion the signed authorization cards involved herein,
including that of Flores, are the best evidence of the signatories'
intent, absent a showing of fraud or coercion See Dan Howard
Mfg Co, et al , 158 NLRB 805, Member Brown's position reported
at fn 5 thereof
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WALLACE E. ROYSTER, Trial Examiner: This matter was
tried before me in Phoenix, Arizona, on various dates
between February 23 and March 4, 1966.' At issue is
whether Henry I. Siegel, Inc., herein the Respondent, has
unlawfuly interfered with, restrained, and corced its
employees in the exercise of rights guaranteed in Section 7
of the National Labor Relations Act, and has in bad faith
refused to recognize and bargain with Amalgamated
Clothing Workers of America, AFL-CIO, herein the
Union, as the statutory representative of its employees in
an appropriate unit . The unfair labor practices are alleged
to affect commerce within the meaning of Section 2(6) and
(7) of the Act. Objections to the conduct of an election held
among Respondent's employees on July 2 are also
presented for resolution.
Following the close of the hearing, counsel for the
Respondent filed a motion to correct the transcript on 568
instances. Counsel for the General Counsel agreed with
almost all of the corrections. The motion of counsel for the
Respondent is granted except for those numbered 315,
331, 399, 478, and 479 which are denied.2
Upon the basis of the entire record in the case, from my
observation of the witnesses, and in consideration of the
briefs filed, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a New York corporation operating
manufacturing plants in Kentucky, Tennessee, and the
one here involved in Eloy, Arizona. In respect of the Eloy
plant during the 12-month period preceding the issuance
of the complaint, the Respondent brought goods,
materials , and supplies, a value in excess of $50,000, to
Eloy from points outside the State of Arizona. During the
same period the Respondent shipped from its Eloy plant
products valued at more than $50,000 to States other than
the State of Arizona. I find, as the Respondent concedes,
that it is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
i Charges filed by the Union on August 2, 1965, and on
January 28, 1966 Complaint issued October 29, 1965. Except as
noted, all dates are in 1965
2 This denial is not based upon any conviction that the
transcript as it now remains constitutes an accurate reflection of
what was spoken I am unpersuaded, however, that granting
counsel's motion in its entirety would provide a record more
closely approaching accuracy
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED Gaitan in the plant and, saying that she had just met with
Greengrass, warned that if the Union won, the plant would
close.
Nick Flores testified that 2 or 3 days before the election
his foreman, Roy Bass, said that if the Union won, he
guessed that the Respondent would make the plant into a
warehouse.
Lupe Gaitan testified that on July 1, Floorlady
Rodriguez said that she had met with Greengrass who said
that if the Union won, the plant would become a
warehouse. Rodriguez commented that the girls must
decide whether they wanted a union or their jobs.
Emilia Gaitan, Jane Galaviz, Lupe Gaitan, and Mary
Galaviz testified that a week or two before the election the
priest in the local Catholic church warned his
congregation that it was too soon to attempt to bring a
union into the plant, that the employees should delay such
a plan for several years, and that if they persisted the plant
would close.
If there was support for the Union among any in the
business community of Eloy, no one testified to it. William
Knapton, who was prominent in EDC, organized a citizens'
committee to combat the Union. Knapton testified that he
feared the closing of the plant should the Union succeed in
gaining foothold there. Shortly before the election, he
caused about 1,500 handbills to be distributed at the
parking lot at Respondent's plant and throughout the area
of Eloy. The handbills warned that if a Union was selected,
it would ask for higher pay and lower production quotas. It
predicted that the Respondent would not agree because it
was already losing money in Eloy, so a strike would result.
It warned that all the strikers would be replaced and would
be left without jobs.
On Thursday, June 24, the Pinal County Enterprise, the
only newspaper in Eloy, said in an editorial that it would be
disastrous for the employees to select a union at this time.
The writer alleged that he had checked with the
Respondent and had learned that because of high labor
turnover and other personnel problems, production was
not economical, and that the plant was losing money. Were
the Union to succeed, the writer continued, the Company
would have good reason to discontinue operations for no
one was going to persist in a losing operation. The editorial
warned that a vote for a union might result in reducing the
number of employees or in the conversion of the plant to a
warehouse. In the same issue, the citizens' committee
published a two-page advertisement urging the employees
to vote against the Union, suggesting that the plant might
be reduced to a warehouse operation if the Union won and
adverting to violence which allegedly accompanied a
strike by the Union in Douglas, Arizona.
In the morning of July 1, Jessie I. Siegel, Respondent's
president, spoke to the employees in the plant. Jane
Galaviz testified that Siegel urged the employees to vote
no in order to secure the future of their children and of the
plant. Siegel said that a vote would determine whether the
plant continued as it was or became a warehouse. Siegel
warned that following union organization, plants were
destroyed by violence or bankruptcy. Lupe Gaitan
testified that Siegel said the vote would determine whether
the plant became a warehouse. Mary Galaviz recalled that
Siegel said that he could make the plant into a warehouse,
that the Union caused violence, and that the Union could
ruin the employees' future. After the speech, according to
Galaviz, her floorlady, Laura Miller, asked her how she
liked it. Galaviz said she wondered what Siegel meant
about the future. Miller replied that the Company could
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Eloy is a community of about 5,400. In 1958 William
Knapton, a local businessman, was instrumental in the
formation of Eloy Development Corporation, herein EDC.
By the selling of stock, about $55,000 was accumulated
and used in part payment of the purchase price of 40 acres
in or near Eloy. Thereafter, through the agency of some
Arizona State officials, negotiations were undertaken with
the Respondent with the result that EDC built a factory
building on the 40 acres and leased it to the Respondent.
Operations in the new factory began in October 1964. Leo
Delgado, a local merchant and one of the officers of EDC,
was particularly active in recruiting workers for the
Respondent. It appears that applications for employment
at the new factory were distributed widely throughout
Eloy. Delgado, who seems to have had a wide
acquaintance in the area , often contacted applicants to tell
them to report for interview by Leo Greengrass, the plant
manager , or in some instances , after such an interview, to
report for work.
In late March 1965, the Union began a campaign to
obtain designation cards from Respondent's employees.
Wilma Robertson, a paid agent of the Union, was in
charge. Through the efforts of Robertson and of
Respondent's employees, Emilia Gaitan, Lupe Gaitan,
Jane Galaviz, Mary Galaviz, and Celeste James who
constituted an employee organizing committee, 113
authorization cards were obtained.
The Respondent of course became aware of this attempt
to interest its employees in the benefits of organization and
responded to it. On May 8 Plant Manager Greengrass
wrote to all employees informing them that the Union had
filed a petition for an election and saying that he thought a
union was not necessary at the plant and would not be best
either for the employees or the Employer. Greengrass
went on to say that no one spoke for him and that the
employees should not be misled by rumors that the Union
might pass on to them. Greengrass assured them that if
their work was satisfactory they need not worry about their
jobs, no matter how they voted.
On June 23 Greengrass again wrote to the employees.
He described some of the benefits that the Respondent
had afforded the employees: an insurance plan, a modern
air-conditioned factory, paid vacations and holidays, and
seniority rights. He said that the Union was interested in
collecting dues, fines, and assessments . Greengrass
argued that the organizers could do no more than make
promises, and that their promises were irresponsible. He
reminded them that only their -employer could provide
jobs, pay insurance premiums, or make vacations and paid
holidays possible. The letter concluded with the
admonition: "insure your future, vote no." Finally, on
June 29, Greengrass wrote that no one would lose his job
no matter how he voted, the Union had nothing to do with
establishing the benefits which already existed, the
Company alone provided benefits, and the Union could not
guarantee anything in that area. Greengrass said that the
future of the plant was in the hands of the voters; that with
a union might come agitation, discord, strikes, and
violence. Again the employees were asked to vote no.
Emilia Gaitan testified that on July 1, the day before the
election was held, a floorlady, Lily Rodriguez, came to
HENRY I. SIEGEL, INC.
make a warehouse out of the plant and if the Union came
in, it would do so. Suzanna Rodriguez testified that Siegel
said a vote for the Union would help make the factory into
a warehouse. Elida Martinez testified that at the end of his
speech Siegel said that the future of the plant would
depend upon the vote, that a vote for the Union would help
the plant to become a warehouse.
Shortly after Siegel had spoken, according to Suzanna
Rodriguez, her floorlady, Henrietta Diaz, asked Rodriguez
to observe that unfinished materials were being shipped
from the plant. Diaz said that if the Union came in, the
plant would close. Another employee, Elida Martinez,
testified that Floorlady Diaz, about the same time, made a
similar comment to her.
Throughout the period of the Union's campaign, the
business community of Eloy tried to persuade employees
that their best interests would be served by voting against
the Union. The theme running through all such urgings
was that the establishment of a union would almost
certainly result in the closing of the plant and the
discouragment of any new industry in Eloy. When the
votes were counted on July 2, only 48 out of a total of 172
favored the Union.3
In the late afternoon of Friday, July 9, counsel for the
Union sent a telegram to the Regional Director in
Albuquerque, objecting to the election on the ground that
the employees had been frightened by employer
statements threatening loss of employment and that the
businessmen in Eloy through advertisements and oral
statements had made the holding of a fair election
impossible. This telegram was received by the Regional
Director on July 12. I ruled at the hearing that because two
Saturdays, two Sundays, and a holiday, July 5, intervened
between the holding of the election on July 2 and the
receipt of the telegram, on July 12 objections were timely
filed. I affirm that ruling now. On July 12, counsel for the
Union filed with the Board's Resident Office in Phoenix,
Arizona, more detailed objections to the election. The
July 12 objections elaborated on the telegram and relied
additionally on Siegel's July 1 speech, threats to move
fabric from the plant, and activities of floorladies in
influencing the votes of employees. I find that the filing at
the Resident Office on July 12 was not a timely filing
within the meaning of the Board's Rule in that it was not a
filing with the Regional Director. The effect of this ruling
is, however, academic. Objections to the election had been
timely filed by telegram, and evidence available to support
those objections or others later discovered affecting the
validity of the election may properly be received.4 In
deciding whether the election should be set aside I have
considered the statements of William Knapton in advising
employees to vote against the Union as contained in the
handbills and newspaper advertisement. I have also
considered the statements attributed to the Catholic priest
and to other leaders in the community. Any employee who
gave any weight to what he read and heard from these
sources would surely conclude that a vote for the Union
was a vote to put him out of a job.
The letters sent out by the Respondent to all employees
over the signature of Plant Manager Greengrass were
calculated to and perhaps did bring about the same
reaction. In the letters of June 23 and that of June 29 the
' The election was conducted in a unit conceded to be and here
found to be appropriate
All production, maintenance , shipping, and shop clerical
employees at the Eloy plant , excluding office clerical
497
employees were told that the future of the plant was in
their hands. Of course they knew that their Employer
wanted them to vote against the Union. The only sensible
conclusion for them to draw was that a vote for the Union
would place their employment in hazard. This is what the
Respondent desired them to believe.
The speech, given by President Siegel on July 1, was
tape recorded. Siegel testified that a tape introduced in
evidence at the hearing was the tape recording made of the
speech as he gave it. An accurate transcription of the tape
in evidence contains no reference to turning the plant into
a warehouse. The reliability of a tape recording as
evidence is no greater than that of the witnesses who
testify to its accuracy. Tapes are easily amended and
edited without these circumstances being noticeable to the
unsophisticated ear. I heard the tape as it was played at
the hearing and it sounded genuine enough to me. Siegel,
of course, said that it was the actual recording of his talk
as did Plant Manager Greengrass and James S. Buckler,
the man who operated the tape recorder. The witnesses for
the General Counsel who testified that Siegel made the
threat in this speech to turn the plant into a warehouse
were, to my observation, highly credible. At no time during
the appearances of any of them on the stand did I have the
feeling that here was a witness unsure of her recollection
of this particular matter. Whether Siegel in fact made the
remark so attributed to him is not a matter of controlling
importance. Even were Ito credit Respondent' s witnesses,
my decision on the merits of the complaint would be
unaffected. But here is a question of fact which must be
resolved and I do so by giving full credit to witnesses for
the General Counsel who testified that the threat was
made and that Siegel made it. How it can be that the tape
fails to include such a comment is unnecessary for me to
decide and I do not undertake to do so.
Apart from the warehouse language, Siegel's speech as
received in evidence certainly warns employees that they
have been the victims of union deceivers and that if they
vote for the Union, the future of the plant and of the
community would be clouded. On the other hand, he said
that a vote against the Union would prevent the possibility
of strikes, violence, and discord and insure the growth of
the plant and the community.
The floorladies, Edwarda Murietta, Sara Williams,
Henrietta Diaz, Lily Rodriguez, Laura Miller, and Virginia
Zapata, all denied that they made any threats to any
employee to the effect that the plant might close or
become a warehouse, or that unfinished goods were being
shipped in anticipation of a union victory, or that any
threats were made concerning security of employment to
employees. I credit the witnesses called by the General
Counsel and find that the Respondent, through the
floorladies, made the threats attributed to them.
It is the theory of the General Counsel that the
businessmen in Eloy who were active in opposition to the
Union were Respondent's agents. Leo Delgado in
particular, it is claimed, occupied such status. It is
plausible that some in the community who had dealings
with Siegel regarding employment would so regard
Delgado. He actively assisted Respondent in recruiting
individuals for employment and on one occasion, when
through inadvertence an employee did not receive her
employees, gardeners , guards, watchmen and supervisors as
defined in the Act
' Aeronca Manufacturing Corporation , 121 NLRB 777
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vacation paycheck, at the request of Greengrass,
advanced the approximate amount of the check to the
employee. I have difficulty, however, in reaching the
conclusion that the General Counsel seeks. In the first
place, it seems highly probable to me that the
businessmen, William Knapton, Leo Delgado, Dr. Holmes,
and the others, needed no prodding from Siegel to mount
and to continue the antiunion campaign . As businessmen,
they had their own stake in the prosperity of the
community and I have no doubt that many of them shared
the fears which later were engendered among the
employees that the success of the Union would mean the
failure of the plant and the community. Except for
Delgado, I do not find this record to establish that the
businessmen mentioned were held out by the Respondent
as its agents . As to Delgado, there is no evidence that he
did more than assist the Respondent in recruiting and on
one occasion advanced a small sun of money to an
employee at the request of Greengrass. These
circumstances do not, in my view, support a conclusion
that in voicing opposition to the union he was
Respondent's agent. I do not find that the Respondent had
any responsibility for what the businessmen said or, in the
circumstances of this case, was called upon to disavow
their words or actions.
As mentioned earlier, 113 employees signed designation
cards prior to the date of election. The cards were, I find,
unequivocal designations of the Union as bargaining
representative.
On July 13, in the course of an interview by a Board
agent, Robert J. Deeney, Wilma N. Robertson, the Union's
principal solicitor and the person who represented the
Union in dealings with employees throughout the
campaign, said:
I signed up about 75% of the employees that
eventually signed cards. I told them that the purpose
of signing the card was not to make them a Union
member but that it was to get an election and the
purpose of the card was to show that the people
wanted an election. Also I told them that if we won the
election , the Amalgamated Clothing Workers would
be the bargaining agent . I also read the card to them
and told them that the card was confidential. I am
sure I read the card to them and I told them that
through cards an election could be held.
When called as a witness, Robertson grudgingly
admitted that she had made such a statement to Deeney,
but insisted that the statement was incomplete, and
asserted that in soliciting cards she did not tell employees
that the only purpose of the signing was to enable the
Union to bring about an election. Robertson was not an
impressive witness. Under cross-examination about her
statement to Deeney , she was evasive and argumentative.
I have no doubt but that in attempting to persuade
employees to sign cards, she emphasized the fact that they
would be used to support a petition for an election.
There was no reason for any employee or union
representative to suppose that the Respondent would be
amenable to extending recognition to the Union without an
election and any employee who had any interest in the
matter must have felt that just signing a card was not going
to bring a union into the plant. All expected an election to
eventuate as it did. There is no evidence, however, that
any signer opposed the Union, and the cards themselves
are expressions of union support. My conclusion is that
Robertson and the employees thought that they would
have to win an election in order for the Union to obtain
bargaining status, and that no thought was given to any
possibility of a card check. I do not further conclude,
however, that the campaign was conducted as if an
election was its goal. Robertson testified, and there is no
reason not to credit her testimony, that she held a number
of employee meetings during the months preceding the
election. It is not believable that these meetings centered
about the desirability of having an election. Surely, the
advantages of having union representation must have been
stressed. Finally, it is unlikely that one opposing the Union
would sign a card even in the belief that he was thereby
doing no more than making an election possible. Those
against the Union could gain nothing from bringing about a
test at the polls. Only those who desired such
representation could be advantaged by the conduct of an
election.
I find that the card signers were not victims of
misrepresentations by Robertson and that the cards are
genuine and meaningful designations of the Union as
bargaining representative. As the Respondent had 182
employees in the bargaining unit on the day of the election,
it follows that the Union was the majority representative of
Respondent's employees in an appropriate unit. I so find.
The conduct of the Respondent through its floorladies
and its president in threatening, frightening, and coercing
its employees in an effort to divert support from the Union
and to insure a vote against it violated Section 8(a)(1) of the
Act and I so find. This conduct, coupled with the
community attitudes as expressed through Knapton,
Delgado, the Catholic priest, the handbills, the newspaper
editorial, and advertisement, insured that a fair election
could not be held. The election, not being an expression of
the uncoerced desires of the electorate, must be set aside.
To direct another election is but to start another turn
around a fixed axis of community disapproval; an attitude
strengthened and encouraged because of Respondent's
hostility to union organization. The fears and anxieties of
the business community in Eloy, as expressed in this
record, will not easily be quieted and likelihood
approaches certainty that the direction of a new election
would evoke the same response from the Eloy merchants
and professional men as it did in 1965.
The complaint alleges that the Respondent unlawfully
refused to bargain with the Union. I think that this
allegation is not supported. No request for recognition was
ever made in behalf of the Union. Assuming that such a
request would have been rejected out of hand, it
nonetheless is prerequisite to a finding of a refusal to
bargain. In order to fulfill the purposes of the Act,
however, it is essential that a bargaining order issue in this
matter." The Union conducted its campaign. A majority of
the employees decided, as evidenced by the designation
cards, that they wanted the representation that the Union
would afford them. The possibility that even in a fair and
free election, absent the coercive and intimidatory
pressures of the Respondent and the community, the
Union might not have prevailed is one that cannot finally
be answered. There is no way of conducting a fair and free
election in Eloy, Arizona, on the question of union
representation at the Respondent's plant. The nearest one
can come to an evaluation of freely expressed employee
sentiment is to accept the conclusion evidenced by the
designation cards. I do so.
Before the hearing opened, counsel for the Respondent
came to the plant and interviewed a number of employees
'Better Vol-U Stores of Mansfield, Inc ,161 NLRB 762
HENRY I. SIEGEL, INC.
in connection with the complaint. By amendment at the
hearing, it is asserted that in these interviews counsel
went beyond the limits of permissible inquiry and thus
violated protected rights of the employees. I find this
allegation to be unsupported except by the testimony of
Mattie Bird. She recalled that on February 16, Attorney
Gruender, in the course of an interview, asked her how she
had voted in the election . Attorney Gruender testified that
he asked no such question but conceded that Bird did tell
him how she cast her vote. I credit Gruender in this matter
and conclude that Mattie Bird probably misinterpreted
Gruender's questions and is thus mistaken in her belief
that she was asked about her ballot.
All employees in the plant after certain waiting periods
are covered by life insurance, hospital and surgical
expense benefits, and weekly indemnity benefits. The
pamphlet which is given to all employees and which
describes the coverage of these plans under the caption
"Who is Eligible" reads:
All non-union , non-New York employees are eligible to
participate in this plan.
Plainly, this publishes a discrimination against individuals
who belong to a union. In behalf of the Respondent, it is
argued that there was no such discrimination in fact and
that the quoted language is to be understood as meaning
that all employees are covered except those in New York
and those who may have coverage by virtue of a plan
negotiated with a bargaining representative. This may
indeed be the meaning which the Respondent gives to the
language but absent evidence that this was painstakingly
explained to every employee who received the group
insurance plan pamphlet, the argument is unavailing. I
find that by the published discrimination against union
members the Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.°
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with its operations
described in section 1, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices, it will be recommended that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that the Respondent has engaged in
serious unfair labor practices tending to deprive
employees of their right to representation by a labor
organization and having found that the purpose of the Act
will best be served by requiring the Respondent, upon
request, to extend recognition to and enter into a
bargaining relationship with the Union, a bargaining order
will follow to bring about such a result.
Upon the basis of the foregoing findings of fact and upon
the entire record in this case, I make the following:
" Tom's Monarch Laundry & Cleaning Company, Inc, 161
NLRB 740
7 In the event that this Recommended Order is adopted by the
Board , the words "a Decision and Oder" shall be substituted for
CONCLUSIONS OF LAW
499
1. The Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By telling employees that the plant might close and
become a warehouse or that violence or bankruptcy might
result should they choose the Union to represent them and
by the apparent restriction of coverage under the
insurance plan to nonmembers of a union , the Respondent
has interfered with , restrained, and coerced employees in
the exercise of rights guaranteed in Section 7 of the Act
and has thereby engaged in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2 (6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in the case, it is
recommended that Henry I. Siegel, Inc., Eloy, Arizona, its
officers, agents, successors. and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with closing the plant or
changing its character or in any other way affecting work
opportunity should they select the Union as bargaining
representative.
(b) Using language in describing eligibility in insurance
plans, restricting coverage to those who are not members
of a union.
(c) In any other manner, interfering with , restraining, or
coercing employees in the exercise of their right to self-
organization, to form, join, or assist Amalgamated Clothing
Workers of America, AFL-CIO, or any other labor
organization , to bargain collectively through representa-
tives of theirown choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other
mutual aid or protection or to refrain from any or all such
activities.
2. Take the following affirmative action which I find is
necessary to effectuate the policies of the Act:
(a) Upon request, recognize and bargain collectively
with Amalgamated Clothing Workers of America,
AFL-CIO, as the exclusive bargaining representative of
its employees in the herein found appropriate unit in
respect to rates of pay, wages, hours of employment, or
terms or conditions of employment and if an
understanding is reached, embody it in a signed
ageement.
(b) Post at its plant in Eloy, Arizona, copies of the
attached notice marked "Appendix. "7 Copies of said
notice, to be furnished by the Regional Director for
Region 28, after being duly signed by the
Respondent's representative, shall be posted by it
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 by
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board ' s Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have
been taken to comply herewith."
(d) It is finally recommended that the Board dismiss the
petition in Case 28-RC-1326 and vacate all proceedings in
connection therewith.
" In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read- "Notify said
Regional Director, in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our
employees that:
WE WILL , on request , recognize and bargain with
Amalgamated Clothing Workers of America,
AFL-CIO, as the exclusive collective-bargaining
representative of our employees at the Eloy plant in a
unit composed of all production , maintenance,
shipping, and shop clerical employees excluding
office clerical employees , gardeners , guards,
watchmen , and supervisors , as defined in the
National Labor Relations Act in respect to matters of
wages, hours, and working conditions and, if an
understanding is reached, embody it into a signed
contract.
WE WILL NOT threaten to close the plant or to
change its operation or in any other respect threaten
to deprive you of employment because of your interest
in or support of the above-named Union.
WE WILL change the eligibility clause of our
insurance plan to remove the reference to nonunion
employees.
WE WILL NOT in any manner interfere with,
restrain, or coerce our employees in the exercise of
their right to self-organization , to form any labor
organization, to join or assist Amalgamated Clothing
Workers of America, AFL-CIO, or any other union, to
bargain through representatives of their own choosing
and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection or to refrain from any and all such
activities.
HENRY 1. SIEGEL, INC.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Resident Office, Federal
Building and United States Courthouse, 230 North First
Avenue, Phoenix, Arizona, Telephone 261-3717.