Krochier Mfg., Co.

National Labor Relations Board - Board Decisions

Jun 28, 1979

243 N.L.R.B. 172 (N.L.R.B. 1979)

DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
Kroehler Mfg. Co. and United Steelworkers of Amer-
ica, AFL-CIO and Furniture Workers Local 500,
Upholsterers' International Union of North Amer-
ica, AFL-CIO, Party to the Contract. Case 31-CA-
7947
June 28, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING ANI) MEMBERS JENKINS
AND PENEI.I.O
On March 21, 1979, Administrative Law Judge
Timothy D. Nelson issued the attached Decision in
this proceeding. Thereafter, the General Counsel filed
exceptions and a brief, and Respondent filed an an-
swering brief together with cross-exceptions and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the complaint be, and it hereby is, dismissed
in its entirety.
I Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Ds Wall Products. Inc., 91 NLRB 544
(1950),. enfd. 188 F.2d 362 (3d Cir. 1951). We have carefull) examined the
record and find no basis ibr reversing his findings.
DECISION
SIAIEMIENI OF THE CASE
TIMOTHY D. NELSON, Administrative Law Judge: This
case was heard at San Bernardino, California, on October
26 through 28 and October 31 through November 1., 1978.'
Pursuant to charges filed against Kroehler Mfg. Co.
(Kroehler) by United Steelworkers of America, AFL-CIO
(Steelworkers) on May 1, the Regional Director for Region
31 of the National Labor Relations Board (Board) issued a
I All dates hereinafter are in 1978 unless otherwise noted.
complaint against Kroehler on June 23 alleging, in sub-
stance, that Kroehler violated Section 8(a)( 1), (2), and (3) of
the National Labor Relations Act, as amended (Act), by
voluntarily recognizing and thereafter entering into a col-
lective-bargaining agreement containing a union-security
clause, with Furniture Workers Local 500, Upholsterers'
International Union of North America, AFL CIO (Local
5(X)), under circumstances in which Local 500 did not repre-
sent an "uncoerced majority" of Kroehler's employees.
All parties have been afforded full opportunity to appear,
to introduce evidence, to examine and cross-examine wit-
nesses, and to file briefs.2 Based upon the entire record,
upon the briefs filed on behalf of the parties, and upon my
observation ot the demeanor of the witnesses, I make the
following:
FINDINGS OF FA('I
1. JURISDCI ION
The complaint alleges, the answer admits, and I find, that
Kroehler is and has been at all times material herein, a
Delaware corporation, engaged at various locations
throughout the United States as a manufacturer of furni-
ture products, including, at its recently built plant at San
Bernardino, California, the situs of the instant dispute.
Kroehler annually sells and ships goods, or performs ser-
vices, valued in excess of $50,000 directly to, or for, custom-
ers located outside the State of California and, accordingly.
is now and has been at all times material herein, an em-
ployer engaged in commerce and in a business affecting
commerce within the meaning of Section 2(6) and (7) of the
Act.
1. 1il I.ABOR OR(;ANIZArII()S INVOI.VED
The complaint alleges, the answer admits, and I find. that
Steelworkers and Local 500 are each labor organizations
within the meaning of Section 2(5) of the Act.
III. IHE ISSUES
Stated most broadly, and subject to further development
below, the central issue in this case is whether or not a
significant number of the authorization cards submitted by
Local 500 to agents of the Federal Mediation and Concili-
ation Service (herein F.M.C.S.) on March 7, and upon
which Kroehler based its recognition of Local 500 and sub-
sequently entered into a collective-bargaining agreement
with it covering its San Bernardino production and mainte-
nance employees, were obtained under coercive and/or
fraudulent circumstances, thereby tainting and rendering
unlawful the resulting bargaining relationship between Lo-
cal 500 and Kroehler.
It is found hereafter that the evidence was insufficient to
sustain the complaint.
2 Timely and helpful briefs were filed by the General Counsel. Kroehler,
and Local 500 Steelworkers appeared at the hearing through a representa-
tive but did not file a brief.
243 NLRB No. 43
172
KRO)HLLER M (iG. CO).
IV. IE Al.l.t(iEI) NFAIR AH()BOR PRA( I ( tS
A. Background and Overview of Main F:nc'lyts
Kroehler operates 17 manufacturing plants in various lo-
cations throughout the United States. It has established col-
lective-bargaining relationships with various labur organi-
zations at those plants. Ten of those plants are covered by a
master contract with Upholsterers' International Union of
North America. AFL- CIO (the International). Local 500's
parent body. Two plants in California, at Inglewood and at
Fremont, are covered by that master agreement. Kroehler
had established plans for construction of the new plant in
San Bernardino in early 1977 and had made those plans
known to the International. According to the credited and
uncontradicted testimony of Kroehler's Director of Indus-
trial Relations, John Foy, the prospect of construction of
the San Bernardino facility was a subject for discussion
during negotiations in 1977 for a renewal of the master
contract for the 10 plants represented by the International.
particularly as such new construction might affect the exist-
ing plants in California covered by the master contract.
Construction of the new San Bernardino facility began in
May 1977 and was completed in January 1978. That plant
began regular operations with a representative complement
of employees in February. In August 1977. acting on
knowledge that Kroehler was in the process of building the
new facility, the International's president. Sal B. Hoffmanln.
issued written instructions to Wiley Smith, l.ocal 500's busi-
ness manager. to develop plans for organizing the San Ber-
nardino facility.'
After first dispatching Local 500 representative George
Moreno to San Bernardino to survey the new construction.
Smith held a planning meeting with officers, business repre-
sentatives, and office functionaries of Local 500, including
George Moreno and his brother, Elisio Moreno (herein re-
spectively called G. Moreno and E. Moreno). Broad out-
lines for an organizational drive at the new plant were de-
veloped at that meeting as follows: Acting through local
contacts, Local 500's representatives were to circulate au-
thorization cards4 among unemployed persons in the San
Bernardino area who would be interested in applying lor
work at the new facility. One of the specific instructions
issued by Smith at this time was that such card signers
should not date the authorization cards when they signed
them. Smith credibly testified without contradiction that he
also told his representatives at this meeting that they were
not to make any "promises" but that "the best approach in
this thing would be to get those employees who were genu-
inely interested in getting employment to agree to make
application with the understanding that if and when they
were employed, that Local 500 would then become the bar-
gaining representative."
Local 500 maintains central offices in Los Angeles, but has territorial
"jurisdiction" over the San Bernardino area.
' All cards used thereafter bore the caption: "Furniture Union. Local
500," and further stated unambiguously, in pertinent part:
I do hereby designate and authorize the Upholsterers' International
Union of North America. AFt .... to act as ms representative for the
purpose of collective bargaining .
Also, integral to these plans was the intention to notity
those who had signed authorization cards when Kroehler
began its interviews for staffing the new plant. It was hoped
that doing so would result in "flooding" Kroehler with ap-
plicants who had already designated Local 500 as their bar-
gaining representative and. by the laws of chance. Local
500 thereby would achieve "majority" status in the comple-
ment of employees who were thereafter hired. It was also
part of the plan that card signers who were alerted to make
application with Kroehler were to be told not to tell Kroeh-
ler interviewers that the) had signed cards for Local 500.
This was out of Smith's expressed concern that employers
"are reluctant to hire employees who express union prefer-
ence.
Finall\. if and when the time came that Kroehler had
hired a representative complement of employees which in-
cluded a majority of persons who had signed cards tfor Lo-
cal 500, a demand for recognition would be made. together
with an offer to submit previously signed cards to an in-
dependent third party for a card check.
Implementation of the foregoing plans began in earnest
in early January and continued through ebruar.' Local
500 representatives G. Moreno. E Moreno. and Bob San-
chez. the latter who had relatives and friends in the San
Bernardino area, began distributing packets of authoriza-
tion cards to their local contacts. Two such principal con-
tacts were Sanchez' brothers-in-law, one of whom worked
at a cement plant near Kroehler's San Bernardino plant.
and the other who worked as a barber in the same area. In
general, circulation of the cards was limited to residents of
the barrios, or IHispanic neighborhoods, in the area. As it
developed. mans, if not most, of the persons who signed
cards pursuant to the sstem described aboxe did not re-
ceive them directly from Sanchez' brothers-in-law or from
Local 500's representatives. Rather, the evidence revealed
that frequently friends and neighbors of the brothers-in-law
received such cards and they. in turn, passed them on to
others in the community whom they knew to he out of work
and possibly interested in applying f)r work at Kroehler
when the new plant opened.
Sanchez and the Moreno brothers told persons, including
Sanchez' brothers-in-law, who received the packets of' blank
authorization cards. that they should be given to persons
who were interested in work at Kroehler, that the cards
should not be dated, and that signed cards should be re-
turned to L.ocal 500 either by mail or by personal delivery
to one of the principal contacts in the community, who
would, in turn. forward them to Local 500. Card signers
were also to be told that they would be contacted by that
union when Kroehler began interviewing for hiring at the
new facility. As a result of the foregoing procedure, Local
500 eventually received approximately 325 signed authori-
zation cards from persons in the San Bernardino area.
Kroehler began its interviewing and hiring process in the
San Bernardino area on Sunday, December 4 1977. at the
Based on credited testimony of F and G Moreno and Smith, hich is
consistent with the fact that ill of the card-signer witnesses called by the
General Counsel described having secured and signed cards from various
sources in the pernio between January I and the end of February As is
found hereafter. Kroehler had already advertised and received a response
from aboul 2) applicants in earls December
173
I)DECISIONS ()1: NAlIO NAI IABOR REI.Al'IONS BOARI)
local Hilton Hotel. Foy, who was responsible or the inter-
viewing and hiring, had placed an advertisement in the lo-
cal newspapers earlier that week, referring to openings in
seven job categories, and inviting interested applicants to
"come by the Hilton" after 2 p.m. on December 4, 1977.
and ask for Foy.
When Foy arrived at the Hilton on December 4 and
walked into the lobby. he "thought there was a convention
going on . . . it was just wall-to-wall people." When Foy
registered with the hotel desk, he was told that everyone
present was waiting to see him and that the hotel switch-
board had been tied up by other individuals who wanted to
speak with him. Foy was unprepared for such a massive
response and, having failed to bring sufficient employment
applications with him, improvised by using legal pads to
record names and telephone numbers of the applicants.
Persons whose names and telephone numbers were so re-
corded were told that Foy would contact them later for an
interview. As a result of this process, over 200 names were
taken down, and some applicants were invited in for inter-
views at the time. Since there were only a small number of
jobs for which Foy was prepared to make ofiers at the time,
only four applicants were hired during the early December
interviews at the Hilton., Further interviews were held at
the Hilton by Foy in the last week of January, prior to
which a second advertisement had been placed in one of the
local papers on Wednesday, January 25.' Although the ad-
vertisement limited itself to a request for "qualified cover
cutters," Kroehler did have other job openings available in
general labor categories such as material handlers. Foy
credibly testified, however, that he so limited the second
advertisement in order to avoid attracting another "conven-
tion." These precautions notwithstanding. Foy again was
confronted with almost 200 applicants when he appeared at
the Hilton on January 30. These persons were all given
application forms, and approximately 50 applicants were
interviewed. Job offers were made to eight or nine of them.
During the week of February 5, Foy returned fr addi-
tional interviews, following a classified advertisement
placed prior thereto, seeking persons with commercial sew-
ing experience. Foy intentionally did not advertise for other
available job classifications, since by then he had approxi-
mately 300 to 400 applications on file from which to solicit
persons for personal interviews. Nevertheless, upon Foy's
arrival, there were again approximately 150 applicants
waiting to be interviewed. Foy. assisted by Kroehler's In-
dustrial Relations Manager Rosales, interviewed an
unstated number of persons and made offers of employ-
ment to 12 to 15 applicants. No further newspaper adver-
6 Since the evidence otherwise credibly shows that Local 500's organizing
efforts did not begin until early January see In 5. rupra). the massive re-
sponse from applicants on December 4 could not have been attributable to
the efforts of Local 500 to steer card signers io interviews.
It was not until about this point that Local 500 representatives became
aware of Kroehler's interviewing arrangements and. mostly through the elf-
forts of the Moreno brothers, began calling persons who had signed cards to
that date and urging them to appear for the announced interviews. It is also
clear that, generally, these representatives made a point of telling such card
signers that they should appear promptly when the interviews were sched-
uled to commence in order to have a better chance of being hired. Such a
pattern of contacting card signers continued during subsequent inter'iew
sessions held by Kroehler at the Hilton described below.
tisements were placed thereafter because of the large back-
log of applicants which had already been received, but Foy
and Rosales continued to hold interviews with persons who
had made previous applications during the second week in
February, and again during a final round of interviews dur-
ing the week of February 20. Approximately 28 additional
applicants were hired pursuant to those two final rounds of
interviews.
There is no suggestion in the record that Foy or Rosales
knew that any of the persons whom they were interviewing
in the post-[)ecember 4 sessions had signed authorization
cards for Local 500. Indeed, both Foy and Rosales denied
that they had any such knowledge. and their testimony was
corroborated y the testimony of card signers called by the
General ('ounsel, who also acknowledged that the subject
of their affiliation with Local 500 or any other labor organi-
zation never came up during the interviews?
Representatives of Local 500 were doing their best to
keep track of the identities of" and numbers of" employees
who were being hired by Kroehler during the period de-
scribed above. Such intelligence was gained from a variety
of sources and devices. One such source was reports re-
ceived by representatives of lIocal 500 from sympathetic
employees in the plant who regularly gave updated infor-
mation about the numbers of persons employed, their job
classifications, and where possible, their identities. In addi-
tion, while the foregoing sources apparently gave reliable
information about the number and identities of persons
who had signed cards for Local 500 who had become em-
ployed at the new plant, i. Moreno also took independent
measures to attempt to determine what the total employee
complement was at an, given time, all for the purpose of
ascertaining the Union's "majority status,"'' or lack thereof.
On one occasion, (i. Moreno entered the plant undetected
and wentt to the timneclock where employees' names were
evident and recorded the names of those persons on a news-
paper which he was carrying. On another occasion C. Mo-
reno stood outside the plant at the end of the shift and
counted the number of persons who left the plant. Such
intelligence was reported back to Business Agent Smith on
a regular basis. Upon being infoirmed that a person who
had signed a card for Local 500) had been hired, Smith
removed that person's card from a "master file," consisting
of the approximately 325 cards secured during the earlier
period, and placed them in an "active file" of persons whom
the Union had reason to believe had been hired. As part of
this process. Smith or one of his agents would date each
"active" card with a date after the date on which the signer
had been hired.?
s Indeed. most of them acknowledged having been specificall, instructed
belbre the interviews b l.ocal 500 representatives not to mention that the)
had signed cards for Local 500.
i As detailed earlier. it was Smith's declared policy that card signers be
told niot to date their cards, and the evidence shows that this policy was
generally lillowed. No explanation Was eser offered for this poliy). nor for
the practice of Local 500's having "post-dateu" the .ards of persons who
became hired by Kroehler. I can only conclude, however, that Local 500 was
concerned about possible attacks on the validity of any cards dated prior to
the date of the signer's hire, if and when such cards were submitted in con-
nection with a demand for recognition as proof of local 500's majority
status. he General Counsel does not contend that such postdating in any
manner tainted the cards' validity for purposes of proving Local 500's major-
ity. This is in accord with my own iew that, there being no issue of "stale-
174
KROFHILER MFG. CO.
At a certain point shortly before Fehruary 28, upon
being satisfied that the plant was in full operation and em-
ploved a representative complement of emplosees. and he-
lieving that a majority of such employees were card signers
for Local 500, Business Agent Smith so advised the Interna-
tional's legal counsel in Philadelphia, Richard S. tHoffman.
On February 28. acting on hehalf of ocal 5(X). Attornec
Hoffman sent a mailgram to Kroehler's Napervillc. Illinois.
headquarters to the attention of Foy. advising. in substance.
that Local 500 had been designated h a majority of the
production and maintenance employees currentlx em-
ployed at the San Bernardino plant as their hargaining rep-
resentative. That mailgram further containedt a demand for
recognition, as well as an invitation to verifl ILocal 500's
majority status by a card check conducted hb an impartial
third party. Foy responded by a mailgram to Hoffman
dated March 2. in which Foy agreed to recognize and har-
gain with the Union as the representatise of the San Ber-
nardino employees in the event that a "neutral parts" were
to verify' I.ocal 500's claim of majority status.
Thereafter, on March 7. representatives of I.ocal 50() and
Kroehler met with F.M.C.S. representaties in San Bernar-
dino for a card check. Kroehler submitted a list of 83 em-
ployees employed in the proposed bargaining unit as of that
date, together with employer "W 4" forms (presumahbl for
purposes of comparing signatures appearing on ocal 5(X)'s
authorization cards against emploee signatures appearing
on the W 4 frms). l.ocal 500 simullaneousli submitted to
the F.M.'.S. representatives 50 authorization cards from
persons believed hy Local 500 to he currentlx emploxed in
the proposed bargaining unit. For reasons which arc not
evident from the record. the F.M.C.S. agents determined
that only 46 of the 50 cards submitted b l.ocal 500 were
"valid." Nevertheless, since 46 valid authorizations re-
flected l.ocal 500's numerical majority in the unit of 83
then-employed employees. the F.M.C.S. representatives is-
sued a written certification that Local 500 was the majority
representative of Kroehler's employees in the proposed
unit. By separate memorandum on that same date. Kroeh-
ler and l.ocal 500 executed a written recognition agreement.
Negotiations between Kroehler and I.ocal 500 for a col-
lective-bargaining agreement thereafter took place on
March 8. 9. and 14. resulting in the execution of ;l written
integrated bargaining agreement on the latter date. T'hat
agreement. by its terms, is effective fronm March 7. 1978
through March 6, 1981. The agreement contains, itlcr talir/
a facially valid union-security provision, as well as provi-
sion for dues checkoff."'
ness," the postdating would not affect the alidil i o cards olher ie :alidly
obtained shortly before the demand fior recogniton See. e.g. IP( Raiu-
rant Corp., and Hardwicke's Plum Ltd. d/hbia lSfatel/l' Plum. 198 Nl.RR
14, 21 (1972). enfd. 481 F.2d 75 (2d Cir. 1973) tIenro Spen ft (Conmpa. In.
150 NLRB 138. 149 (1964)
m0 It appears from representations of Local 500's altlorne) and the G;ener.al
Counsel's acquiescence therein. thai pending the outcome o this case. he
union-security clause has been "suspended" from enlrcement and that nei-
ther dues nor initiation fees have been collected. The question was nol ulls
liigaled and, in ans event, would be determinable at the compliance slage l
these proceedings. should i come to that See. e.g..4 AM( R Dillon. 4(
Industrier. Incorporlated s. L R LB. 59 2d 42 2 h (r. 1979)
B. Prl/itilarln (Com,nle,
('ertain preliminar observations are necessars to place
the issues in context: The Cieneral Counsel does not con-
tend nr is there a evidence which supports such a con-
tention, that Kroehler was aware of the Union's organizing
drive at any time prior to the demand for recognition on
February 28: nor, as noted earlier, were Kroehler's agents
aware that substantial numbers of applicants had signed
cards for l.ocal 500. In addition. it is not contended. nor
was it proved, that agents of Kroehler "cooperated" in anx
respect with Local 500 before receiving the demand tfr rec-
ognition h. for example, advising that linion when inter-
views were to be held. or which emploees had been hired.
or bh according card signers any preferential treatment.
The General Counsel also disclaimed an3 intention of
arguilng that there was less than a "representative comple-
ment'' ulAthil the meaning of the Board's decision in (i-
eral Eslru.iot (mal/)tltv. ln.. General ronze . /,insiti
Prodrtls ('or/., 121 NLRB 1165., 1167 68 ( 1958). at the
time recognition as granted. Moreover. I ind. based on
express denials hb involved Kroehler oflicials, as well as the
total lack of any contrars indication in this record. that
Kroehler was never alware at an! time prior to the March 7
grant of' recognition of the specific, or general circuml-
stances surrounding l ocal 500's solicitation and receipt )t
the authorization cards which were relied on in eteniding
said recognition. Finall, at the time l.ocal 500 was recog-
nized atid bargaining for a contract took place, and ftir
sometime thereafter, there was no "rival' orgimntzinlg ac-
livits. Steelworkers ditd not appear on the scene uiitil well
alter the contract Iwas concluded.
In sumlilar,. tfor whatever significance it m;!a hxse. I ind
that K roehler's recignitioln of' and subsequent entering into
a collectie-hbargaiLing agreement Local 5(X) were 'arm's
length'' ralnsliction, d(]one i a good tiith belief that a ma-
jorit (oft' its emploees in anan appropriate unit haid desig-
nated .cal 5() a; their exclusive collective-hbarg;aining rep-
resentatlie.
'The (ieneral ('ounsel has asserted and ms own resear-ch.
guided b the partlies' briefs, also shows, that this is a tactu-
all' unprecedented case. 'I hat is, no precedenits hase been
discovered dealing withl oliintlarx recognition of a unin
whose primar "organizational'" activities involved the so-
licilation otf card signatures from obseekers, a lid the steer-
ing" hy the union of persons u ho had thus signed cards to
publicls announced employment interviews.
The iGeneral ('ounsel's position. as reflected during argu-
ment at trial ad n brief assumes. as I have tor purposes
of' this decision. that there is nothing inherentl 3 illegal
about an employer's recognition of' i union hose "major-
ity" support was ohbtained h) such prehire card signing.
Indeed. setting aside the question whether the cards were
obtained bh fraud or some other form of coercion. it would
appear to be wholls consistent with the purposes of the Act
'for an employer to base recognition of a union on unambhig-
uous authorization cards from a majority of' its emplosees
in an appropriate unit een if' those cards had been signed
bef'ore the signers had been interviewed anid hired. f'or the
Act gives to "emplosees" the right to be represented in col-
lective bargaining bx representatives of' their own choosing.
and further- m;lndates thlit the emploer of those emploees
175
DECISIONS OF NATIONAL LABOR RELA' IONS BOARD
confer exclusive recognition on representatives so chosen.
And it is well settled that Section 2(3) of the Act defines the
term "employee" broadly. Phelps Dodge Corporation v.
N.L.R.B., 313 U.S. 177, 191-192 (1941). Thus, the term in-
cludes not only persons who have located jobs and have
begun performing paid work, but also, as herein. "members
of the active work force available for hire." Allied Chemicl
& Alkali Workers of America, Local Union No. I v. Pitts-
burgh Plate Glass Co.. Chemical Division, e al., 404 U.S.
157, 168 (1971); and see also cases cited in the underlying
Board decision. Pittsburgh Plate Glass Companv, Chemical
Division, 177 NLRB 911, 913 (1969). Accordingly, where, as
here, jobseekers (mostly unemployed, but in some cases.
employed elsewhere) had, in connection with their intention
to apply for work at Kroehler, signed authorization cards, it
is concluded that those authorizations ould be relied on by
both Local 500 and Kroehler for purposes of. respectively.
seeking and conferring recognition.
The General Counsel also correctly acknowledges that.
under circumstances where, as here, an employer grants
recognition to a union based on presumptively valid autho-
rization cards from a majority of employees in an appropri-
ate unit, the burden is on the General Counsel to show that.
in fact, the Union had not received valid authorizations
from such a majority. Walker's Midstreaom Fuel & Service
Co., 208 NLRB 158, 159 (1974); American Beef Packers
Inc., 187 NLRB 996, 997 (1971). Accordingly, the General
Counsel contends, and sought to prove, that a legally signif-
icant number'' of card signers signed their cards only after
express or implied inducement from various persons' that
the act of signing a card would substantially enhance the
signer's ability to be hired by Kroehler.'3
With the issues thus narrowed, it becomes apparent that
the General Counsel's case depends in substantial part on
the circumstances under which certain card signers affixed
their signatures to otherwise unambiguous written authori-
zations designating Local 500 as their bargaining represent-
ative. Findings are entered below regarding what specific
card signers were told, and by whom, at the time cards were
signed. Consideration of the ultimate significance of such
findings is reserved for discussion to the "Analysis" section.
infra.
C. Details Surrounding the Signing of Cards v Specific
Individuals
The General Counsel called as witnesses 11'4 card signers
who became employed by Kroehler prior to the March 7
n Specifically, it is contended that at least 7 of the 46 cards were tainted.
thereby leaving, at most, only 39 valid cards in a unit of 83 on the date of the
card check.
0l With only a few exceptions, the persons alleged to have offered such
assurances were neither paid officers of functionaries of Local 500, nor one of
the local "contacts." Rather, they were card signers' relatives, friends or
coworkers on other jobs. (See "Analysis," infra.)
i In addition, one card is challenged because the purported signer never
signed the card; and another card was challenged, in part, because it was
delivered to Local 500 by the signer only after an alleged assurance by G.
Moreno that the card was "not a binding contract" and that there were "no
strings attached" to the signing. (See "Analysis," infra.)
Ft One of the witnesses, Raul Rodriguez, further offered an account of the
circumstances of the signing of a twelfth card by Angel Quiroz, who did not
himself testify, but whose card was also used and relied upon in the March 7
card check.
card check and grant of' recognition and whose cards had
been submitted by Local 500 and relied on by F.M.C.S.
agents in certifying that union's majority status on that
date.1 The evidence pertaining to the circumstances under
which each of them signed cards is discussed in the approxi-
mate order of their appearance as witnesses.
Angel Gonzales
LUncontradicted records establish that Gonzales com-
pleted a written application on February 6 and commenced
working at Kroehler on or about February 13. Gonzales
testified that "about a week before" he made application,
he was visited at his home by both Moreno brothers who
gave him a card which they asked him to till out and sign.
He further testified initially that before he received the card
one of the Morenos (later asserted by the witness to be G.
Moreno) told him: "if I would sign it. I would get a job."
Gonzales shortly thereafter was asked to repeat what G.
Moreno had told him and amended his version as follows:
"He came to my-came to the front door and said when I
signed this card I would have a chance--better chance of
getting a job." Gonzales also testified on direct examination
that there was a further conversation after he completed.
signed, and returned the card during which one of the
Morenos talked "a little about benefits, about how it would
all go along ... and stuff like that," and then asked him for
directions to other persons' houses in the neighborhood, in-
cluding that of Joey Lujan.
On cross-examination, however, Gonzales testified incon-
sistently concerning the timing of the alleged "job induce-
ment" remarks, stating first that such remarks were made
after he had signed the card. Hlis versions thereafter on redi-
rect and during my own questioning became muddled as to
the timing of the "job inducement" remarks. He stated vari-
ously that those remarks came befbre, or during, the time
he was completing the card. He also testified that he per-
sonally dated the card on the spot adhering to this ac-
count even after being confronted with his pretrial affidavit
which stated that he did not date the card. Gonzales' card
(G.C. Exh. 10) bears the date of"2 15 78" (i.e., a date after
Gonzales was hired and well after the approximate date on
which he allegedly met with the Moreno brothers at his
house). Confronted with this discrepancy, Gonzales did not
retreat from his claim that he had entered the date himself.
but asserted that he "must have gotten mixed up on the
date and put the wrong date." Gonzales' overall testimonial
demeanor did not inspire confidence, and it is highly un-
"' The General Counsel further called two card signers. t)aniel Ortega and
James Nunez. whose cards were not used for purposes of the card check.
Their testimony was received for whateser value it might have in showing
that a "pattern" of conduct existed surrounding the "solicitation" and sign-
ing of cards. Upon review of the testimony of those latter witnesses, I con-
clude that their testimony is of no value in deciding the issues presented. A
different person "solicited" each of their cards Ortega's aunt and Nunez'
friend, respectively). Ortega's testimony was unreliable and I would not
credit him as to what was said and whether it occurred before or after
signing due to his constantly shifting versions on these points. Also, Ortega
had already been hired and put through a preliminary orientation process
before he signed the card Nunez' testimony, while seemingly credible, re-
vealed only that his friend. Gus Mendoza. gave him a card, saying that
Kroehler would be opening a new plant and. as Nunez put it, "He just told
me to put my name, and don't date the card and to put the address."
176
KROEHLER MFG. CO.
likely that he dated (or misdated) his card in the presence of
the Moreno brothers, in view of the previous findings that it
was Local 500's policy not to have card signers date the
cards when they signed them. The more plausible and obvi-
ous explanation for the "2-15 78" date on Gonzales' card
is that Smith or one of his agents later entered that date
upon learning that Gonzales had started work at Kroehler
on or about February 13. 1 so find.
In fact, E. Moreno admitted that he met with Gonzales.
but his account was wholly different. First. . Moreno, cor-
roborated by his brother on this point, denied that G. Mo-
reno was even present at the time. E. Moreno also denied
"soliciting" Gonzales to complete a card. Instead, F. More-
no testified that he had been in Gonzales' neighborhood
picking up completed cards through one of Local 500's "sec-
ondary" contacts, Rafaela Lujan (mother of the above-
mentioned Joey). One such card picked up from the Lujans
was from Gonzales, but E. Moreno noticed that Gonzales
had failed to sign it. E. Moreno then went alone to Gonza-
les' house, pointed out that Gonzales had failed to sign it.
whereupon Gonzales signed it and E. Moreno left, after
first giving Angel and his brother, Lee. two additional blank
cards which they had requested for some friends of theirs.
Moreno denied having any conversation with Gonzales to
the effect that signing a card would enable Gonzales to get
a job or have a "better chance" of getting a job.
Wholly apart from considerations of Gonzales' demeanor
and the inconsistencies in his testimony, E. Moreno's ver-
sion of the circumstances leading to his presence at Gonza-
les' house seems more plausible. The evidence as a whole
indicates that the Moreno brothers did not go "door-to-
door," as it were, for purposes of "soliciting" card signa-
tures. Rather, their function was limited to passing out bun-
dles of cards to local "contacts" and later retrieving com-
pleted cards from those persons.'" Thus, if I were to credit
Gonzales' account, it would be tantamount to a finding that
E. Moreno inexplicably departed from that overall pattern
in going to Gonzales' house to try to "sell" Gonzales on
signing an authorization card. Accordingly, I credit E.
Moreno's account in this regard-that he was at Gonzales'
home solely for the purpose of having him place his signa-
ture on a card which Gonzales had earlier filled out and
delivered to the Lujans for transmission to Local 500.
If that be the case, it is even more unlikely that E. More-
no would have made the "job inducement" remarks re-
ported by Gonzales, regardless of their timing vis-a-vis Gon-
zales' placing his signature on the card. and even allowing
for the possibility that Gonzales was honestly mistaken
when he claimed that both Moreno brothers were present
and that it was G. Moreno who made the alleged remarks.
For there would be no apparent need to "induce" Gonzales
to do so where he had already indicated his desire to autho-
rize Local 500 by having earlier substantially completed the
card and transmitted it to the Lujans. Moreover, had the
Moreno brothers (or either of them) truly been there to
1' E. Moreno credibly testified. that he personally "picked up" directly
from individual signers' homes fewer than 15 of the total of about 325 cards
secured during the campaign. As to the small number that he did so "pick
up," I infer from his testimony that they had been completed hefore he
arrived, and that he did not visit those homes for "solicitation" purposes.
solicit Gonzales to complete and sign a blank card, the
would not have permitted him (as Gonzales claimed) to
date his card it being contrary to Smith's instructions to
do so.
Neither Angel Gonzales nor his brother Lee was called
bh the (ieneral Counsel to deny E. Moreno's claim (made
after Angel had already testified) that he had given addi-
tional cards to Angel and Lee, thus leading additional cre-
dence to E. Moreno's version, at least as to that point. In
addition, Angel admitted on cross-examination, as did most
of the other card-signer witnesses called by the General
('ounsel. that although he had read the card betfore signing
it, and knew that its purpose was to authorize Local 500 as
his bargaining agent should he become employed at Kroeh-
ler. he eventually became unhappy with I.ocal 5's efforts
after seeing the contract which had been negotiated. lie
further admitted that Steelworkers' agents had told him.
when that Union later arrived on the scene. that in order to
oust ocal 500 and void the existing contract, it would be
necessary to furnish protxf to the Board that ocal 500's
cards had been obtained under invalid circumstances. This
element of potential bias and self-interest lurking behind
Gonzales' testimony, coupled with his demeanor and the
other inconsistencies and dubious statements detailed
above. have caused me to conclude that Gonzales should
not be credited as to the "job inducement" remarks which
he attributed to G. Moreno (who. I find, was not there in
any case) and that E. Moreno's account should be credited.
Alfred Garcia, Cynthia Garcia, and William Hughes
Since the events surrounding their signing of cards are
interrelated, their accounts are considered together. Both
Alfred Garcia and his sister, Cynthia, signed cards days
after being told about them by their mother, Ramona, in
the presence of Alfred's girlfriend, Kim Finley. tlughes. a
friend and neighbor of Alfred. signed a card after Finley
brought one to him. The various events in question took
place in the period late January-early February. Alfred and
Cynthia Garcia and Hughes all went to interviews at the
Hilton on February 6, following telephone messages from
G. Moreno which are discussed below. Each was hired and
started work at Kroehler before the end of February.
Alfred's and Cythia's recollections are similar as to their
mother's remarks at the mother's home preceding their se-
curing of and signing cards, but they are not identical. Al-
fred's version was that mother Ramona said:
. . a union was handing out these cards for job [sic] at
Kroehler Manufacturing, and in order to get ajoh there.
I would have to sign the card, turn it in, and they
would contact me. [Emphasis supplied.]
Cynthia's version was:
. . .her [i.e.. mother Ramona'sl friend [later identified
by Cynthia as "lnez"] had some union cards to get a
job at Kroehler and that we would be getting $3.50 an
hour to start.'
i Obslousl. both accounts ofi the same conversation cannot be literalls
accurate. and. in a case where he precise manner n hlch assertedli "coer-
cise" remarks were nmade ma*, he critical to the result. I ind thai ( nthla's
t(' '¢ttnll,'lt'j i
177
DECISIONS ()F NATIONAL ILABOR RELATIONS BOARD
Cynthia further recalled that she told her mother that she
"wanted to think about it." Crediting Cynthia's further ac-
count, about 2 days later, Cynthia went to "Inez' " house in
Rialto, after mother Ramona had asked her to do so, and
upon arrival Cynthia met "nez." "lnez" did not speak
English, so she brought her son out to speak with ('Cnthia.
The son told Cynthia that she should sign and fill out the
card, but not date it, and that "they"'8 had to have the
cards back in a few days. The son then gave Cynthia five
blank authorization cards which she took with her. She lat-
er completed and signed one of them herself at home, after
reading its printed text. She did not date the card, and the
hand-printed word "Kroehler" appearing on it was on the
card when she first received it. She returned her own signed
card, as well as three other blank cards, to her mother. A
few days later she gave the last blank card to Alfred. who
eventually completed and signed it (without dating it) un-
der circumstances discussed below, and returned it to
mother Ramona.
A few days later Cynthia received a telephone call from a
man with a "Spanish" or "Mexican" accent (found to be (3.
Moreno, based on subsequent events and testimony) who
asked her if she was the Cynthia Garcia who had "signed
the card to get the job at Kroehler's." After Cynthia ac-
knowledged that she was, G. Moreno asked if Alfred Gar-
cia was her husband, and Cynthia explained that he was
her brother, giving Moreno instructions how to telephone
Alfred through his friend and neighbor, Hughes. G. More-
no then told Cynthia that interviews were to be held at the
Hilton on February 6, urging her to be there promptly at 8
a.m. Cynthia later recalled on cross-examination that G.
Moreno also instructed her to "make sure [she] did not tell
the interviewer that [she[ had signed the card."
In the meantime. Hughes had gotten one of Ramona
Garcia's group of four blank cards and had signed it after
Alfred Garcia's girlfriend, Finley, had given it to him.'9 Ap-
parently, shortly after G. Moreno had called Cynthia Gar-
cia, he then called Hughes, asking whether he had signed a
card and whether he had dated it. Hughes told Moreno that
version was more reliable than Alfred's formulation in this regard. She im-
pressed me somewhat more than Alfred as being unfamiliar with the legal
issues in this case and less eager to tailor her testimony to suit the result.
Specifically. I do not credit the underscored portion of Alfred's testimony
quoted above. I further retain doubts as to whether Cynthia's account consti-
tuted a complete and verbatim rendering of the conversation with her
mother.
I Although her testimony was somewhat inconclusive on the point, Cn-
thia credibly testified that Inez' son made some reference to some connection
or association which his mother had with "the union." and I am satisfied that
nothing in his remarks would have led Cynthia to believe that his reference
to "they" was a reference to Kroehler.
9 Hughes initially claimed that Alfred Garcia had told him before he
eventually got the card from Finley that Alfred's mother had cards for "the
union" and "if I wanted one that I that she would give one to me to get a
job at Kroehler. " Emphasis supplied.] Although called as a witness. Alfred
did not corrorborate Hughes on this point. Hughes was also suspiciously
vague and contradictory on cross-examination, first neglecting to mention
the underscored remarks of Alfred set bfrth s.upra later claiming that
"someone" said he would have a "better chance" at a Job if he signed a card:
later deciding that it was Finley who said this: and later suggesting that his
own wife had made such a comment. I do not credit Hughes in his various
claims that he was told by the various persons he named before signing the
card to the effect that signing it would enhance his chances of employment
with Kroehler.
he had not. Although not necessarily in the following order,
I find that G. Moreno also told Hughes to report promptly
at 8 a.m. on February 6 for an interview at the Hilton and
further discussed the possible jobs for which Hughes might
apply, depending on whether he was "husky." Hughes also
claimed that, at some point, Moreno said "something about
putting my name on the top of the list for a job interview."
(i. Moreno denied having made any such remark, and I
credit him in this latter regard because of Hughes' vague-
ness in this particular area and because Hughes had great
difficulty telling a coherent and consistent story whenever
he was purporting to recall "job inducement" remarks, as is
discussed above. There was no sequestration of witnesses,
and Hughes had been present during Alfred's testimony.
Hughes' pretrial affidavit contained no reference to More-
no's having made any "top-of-the-list' type remark, al-
though Alfred's testimony attributed such a comment to
Moreno in the conversation between Alfred and Moreno
which occurred promptly after the Hughes-Moreno conver-
sation.2' Moreover, Hughes' pretrial affidavit attributed
such a "top-of-the-list" comment to Alfred Garcia alone.
and at a time prior to Hughes' signing of the card. Alfred,
incidentally, did not corroborate this version, either; and
from Alfred's testimony it appears that Alfred had never
heard such a remark until he spoke with Moreno after
Hughes got off the telephone.
As is implicit in the foregoing digression, G. Moreno
eventually asked Hughes to locate Alfred Garcia and bring
him to the telephone. Hughes did so, and when Alfred got
on the telephone G. Moreno introduced himself, asking
whether Alfred had signed a card "to get a job at Kroeh-
ler." Alfred had, in fact, already signed the card, but had
not yet turned the card back over to his mother for delivery
back to Local 500. He told G. Moreno, however, that he
had not yet signed it. pointing out that it authorized Local
500 to represent him and stating that he had reservations
about signing a card without knowing what Local 500
could do for him. G. Moreno then told Alfred that the card
was "not a binding contract" and that there were "no
strings attached," but that Local 500 simply needed cards
signed to show that employees had an "interest" in repre-
sentation so that Local 500 could enter the Kroehler plant
to "recruit" or "talk to the people."" Alfred then said he
would sign "under those circumstances." and Moreno re-
minded him not to date it when he did so. Moreno then
urged Alfred to go to the Hilton at 8 a.m. on February 6,
adding that he would receive "first consideration," or would
be at the "top of the list" by doing so (see fn. 20. supra).
Moreno also suggested that Alfred apply for a position as
an assembler. Moreno also reminded Alfred not to mention
20 Howev er. Alfred conceded on cross-examination that G. Moreno's com-
ment in this regard was to the effect that Alfred would get "first consider-
ation" if' he were to report promptly to the Hilon. Considering the overall
pattern of Moreno's conduct, it is more likely, and I find, that such a remark
was an exhortation to be prompt for the interview, and not a postsigning
suggestion that the act of signing a card would itself entitle one to "first
consideration" or 'top-of-the-list" treatment. This is especially so where, as
found above and hereafter. G. Moreno told both Alfred and Cynthia not to
tell the interviewer that they had signed authorization cards.
l I credit Alfred, whose testimony on this point was careful and essentially
unshaken by igorous cross-examination G. Morenl's denial on the point
was ritualistically pat and unconsincing.
178
KROHI L.ER MFG CO.
to the interviewer that he signed the card. (Part\ to the
Contract Exh. 2, p. 2 .)
Alfred turned over his already signed card to his mother
shortly after that conversation. When he appeared on Feb-
ruary 6 at the Hilton, he was told, inter alia, by interviewer
Foy, in response to his own query, that Kroehler did not
have a "union shop."
Although Alfred and Cynthia Garcia, Hughes, and Al-
fred's girlfriend, all applied at the Hilton on February 6,
Finley, who had also signed a card. was never hired a fact
that the Garcias and Hughes admitted knowing. They also
acknowledged, as did every other card signer called by the
General Counsel, that Kroehler's written job application
form made it plain that completing it did not constitute any
assurance that a job was available or that the applicant
would be hired. They also acknowledged, as did the others,
that they became aware after starting work for Kroehler in
mid-late February, that there was no current union repre-
sentative.2 2 Finally, like all other card-signer witnesses
called by the General Counsel, these three witnesses never
made attempts to revoke their cards after they were hired
and before the March 7 grant of recognition to Local 500."
Harry Goings
Like the three witnesses who preceded him, Goings did
not receive a card directly from an officer or functionary
employed by Local 500. He also conceded that he hoped
that his testimony would be helpful to the interests of
Charging Party Steelworkers. This latter potential bias
seems to have affected his testimony somewhat. He testified
that he was originally approached by a coworker on an-
other job, Art Guerrero, who assertedly told him that Gue-
rrero's father "had cards that he can give me one hatr ill
help me find a job," adding that Guerrero had mentioned a
"mattress plant" that would be hiring. Although uncontra-
dicted, and perhaps not truly material in any event, I have
sufficient doubts about Goings' ability and disposition
faithfully to recall what happened, that I do not rely on the
underscored portion of the above quote.2 4 A few days later,
Guerrero brought a card to their mutual workplace, a "fast-
food" hamburger stand, and Goings signed it but, on Gue-
rrero's instruction, did not date it. Goings further testified
that Art Guerrero stated that Guerrero's father had said:
IT]here would be 300 to 500 openings at the plant, and
he [i.e., Guerrero's father] would turn those names in,
if I signeda card I would have a good chance of getting
a job. [Emphasis supplied.]
21 Cynthia testified that when she signed the card, she assumed that there
was then a union contract with a "union shop" rule at Kroehler, although
conceding that no one had told her this.
1 Similarly, they acknowledged disenchantment or unhappiness with Lo-
cal 500 only after learning of the terms of the contract which was eventually
reached and after Steelworkers began rival organizing activities.
2 Art Guerrero was not called as a witness by the General Counsel, just as
other persons alleged to have made "job inducement" remarks to Alfred and
Cynthia Garcia and William Hughes were not called (i.e.. mother Ramona.
girlfriend Finley, Hughes' wife).
25 Guerrero's father, Carmen. is not connected with Local 500. E. Moreno
stated that he "knew" him, but denied ever telling Carmen that signing cards
would help signers to obtain a job at Kroehler.
From the way in which the underscored portion of G(o-
ings' testimony appeared, it had all the earmarks of an at-
tempt by Goings to "squeeze" testimony unfavorable to
Kroehler and Local 500 into an otherwise innocuous and
credible coversation. This impression was enhanced when it
emerged upon cross-examination that Goings' pretrial affi-
davit contained a similar account. omitting only the under-
scored reference linking igning a card to the "good chance"
remarks made by the younger Guerrero to Goings. Accord-
ingly. I do not credit Goings as to the underscored portion.
I further find that Art Guerrero told Goings, in effect. only
that Guerrero's father had said that. given the anticipated
large number of openings at Kroehler. Goings would have a
good chance of getting a job there. 26
Two or 3 weeks later," Goings went to the Hilton tor
interviews and was hired. He got a message from his
mother that a man had called his home with information
about the Hilton interview. (This was, presumably. one of
the Moreno brothers.) Goings started working at Kroehler
on or about Februar3 20.
Tommy Castro Barrera
Barrera started working at Kroehler on or about Febru-
ary 27. He went to an interview at the Hilton after earlier
signing, but not dating, an authorization card for Local 5(X).
and after receiving a telephone message through his sister
that he should go to the Hilton on a certain date for an
interview.2 When he signed a card. Barrera had been em-
ployed at Kinder Manufacturing and acknowledged that he
knew that signing it constituted an authorization Ibr repre-
sentation because another local union affiliated with the
International had been organizing employees while he V.as
still working at Kinder, and was passing out similar cards.
Barrera testified that he signed the card under the follow-
ing circumstances: While working at Kinder. he saw co-
workers Pete Ramirez and Ventura Campos talking about a
Local 500 authorization card which Ramirez was holding.
Inquiring, Berrera was told by Ramirez, (according to Ber-
rera's initial testimon) that it was a "union card" for a
union,
... that Kroehler was going to have and if I signed this
card. filled it out and, you know. well you know. I
asked, you know, well-well he said if he signs this
2' Even though Goings testified that the above-quoted remarks of Art
Gurerrero were made after he signed and turned the card back over to Oue-
rrero, the General Counsel urges on brief that I find that they occurred
before signing, because Goings attnbuted to Guerrero the expression, "if I
signed." The above finding that Guerrero did not even make the statement in
question detracts from the strength of the General Counsel's argument, and
the findings as to what Guerrero did say may render inconsequential the
question of timing vis-a-viis signing I find, nevertheless, consistent with Go-
ings' specific recall on this point, that the remarks which were made by
Guerrero occurred after Goings signed the card. The risk of nonpersuasion
on prima facie portions of the General Counsel's case remains with the Gen-
eral Counsel. and it would be sheerest speculation on my part to find on this
record that the credited statements hb Guerrero took place before Goings
signed the card.
27 Thus, the exchanges with Guerrero were in early February. and not in
early January. as Goings at one point testified.
21 Barrera acknowledged on cross-examination that the message as he got
it from his sister was that he should get to the interview "real earl) [so as to)
. . .stand a chance of getting an early interview time and that in turn would
give [him] a better chance of getting a job down there."
179
I)tD('ISIONS () NAIIONA I.ABOR REIATIONS BOARI)
card he would have a good chance of getting a job at
Kroehler .. which was going to open up that month.
Ramirez added that he had gotten the card from Cam-
pos. Campos then interrupted and, according to Barrera's
initial account, stated: "... If I [Barreral filled one out that
I would have a good chance of getting a job at Kroehler
Manufacturing, too."
Campos then told Barrera that she had gotten cards from
a friend, Helen Del Gado, and urged both Barrera and
Ramirez to sign cards right away. Barrera and Ramirez
each stated that they wanted to talk further about it "to
find out more about this card." Del Gado is Barrera's ex-
wife's cousin and he and Ramirez visited Del Gado at her
home that night. Upon arrival, Barrera states he asked Del
Gado if it was "true that if we signed this card that . . . we
would have a good chance of getting a job at Kroehler," to
which Del Gado replied, "Yes." Del Gado then went on to
instruct Barrera and Ramirez to sign, but not to date the
cards, which they did.
None of the other participants in the above-described
events (i.e., Ramirez. Campos, Del Gado) were called as
witnesses. Although Ramirez signed a card, he was not
hired. After being hired, Barrera became a departmental
"committeeman" for Local 500.
Barrera's initial accounts of his conversations with Cam-
pos, Ramirez, and Del Gado were seriously undermined by
the following exchange during cross-examination:
Q. [By attorney for Local 500] Okay. Now going
back to the conversation you had with Ventura Cam-
pos and Helen Del Gado, isn't it correct, Tommy, that
in that conversation [sic] what you were told by them
was that you had to get your card in quick and that
you had to sign it quick and that if you did sign a card
you would be one of the first notified concerning the
interview time for a job at Kroehler?
A. True.
Of course, this concession drastically changes the tenor of
the alleged "inducements" which preceded Barrera's signa-
ture. The inference which could be drawn from Barrera's
initial version is that Barrera signed only after being told
more than once that, in effect, the authorization card was a
"ticket" to a job. From the latter concession, it appears that
Barrera was told only that signing a card would permit
Local 500 to notify him as soon as interviews were to be
held and he would thereby be in a better position to be "at
the front of the line," as it were, for making an application.
The latter message is wholly consistent with Local 500's
declared organizing strategy and with credited accounts of
several other card signers; and I find that it is the latter
message which was conveyed by Campos and Del Gado
before Barrera signed a card."
2Recognizing problems with Barrera's testimony on cross-examination.
the General Counsel urges on brief that Barrera's latter version merely re-
flected what he was also told, in addition to that which he had earlier re-
counted. I do not embrace such a generous interpretation especially where
the General Counsel did not attempt through redirect examination to estab-
lish the basis for the interpretation now urged, and where no effort was made
to corrorborate the former version by calling the other participants. More-
over, G. Moreno credibly testified that he knew Del Gado, who had tele-
phoned him after learning that someone else had signed a Local 500 card for
Kroehler while employed at Kinder Manufacturing. Del Gado told G. Mo-
Joey Salcedo Lujan
As was noted above in the discussion of Angel Gonzales'
card, Rafaela Lujan was one of Local 500's secondary con-
tacts who had received some authorization cards to distrib-
ute to persons interested in working at Kroehler. She gave
one to her son, Joey, "around" January 10. according to
Joe's credited testimony. Joey eventually went to an inter-
view at the Hilton in early February, following notice by
telephone from a "Mr. Moreno" (whether George or Elisio
is not clear from the record). He started working at Kroeh-
ler on February 20.
The allegedly "coercive" statement relied on by the Gen-
eral Counsel was made by mother Rafaela who, according
to Joey's initial account, told him that "there was some
cards being passed around . . . [a]nd that there was a possi-
bility that I may be given a job if I filled out that card";
recalling further that Rafaela specified that the "cards"
were "union cards." Asked shortly afterward by the Gen-
eral Counsel whether he signed the card before or after his
mother had made the above-quoted remarks, Lujan replied
"That is really hard for me to answer," Pressed further, he
stated "It must have been after." Employing the same rea-
soning discussed above at n. 26 in connection with Goings'
card. I find that the General Counsel has failed to meet its
burden of proof on a material primna ileic point. i.e., that
Rafaela's statements induced Joey to sign the card. 0 More-
over, because Joey eventually diluted his initial account of
mother Rafaela's remarks, as is discussed below, it is doubt-
ful whether the timing of the remarks is critical to the ques-
tion of the validity of his card. In any case, I again reject
the General Counsel's suggestion on brief that Joey's attri-
bution to Rafaela of the conditional phrase "if I filled out
that card" establishes that the remark preceded his signing.
Joey also claimed to have written the date which appears
on his card and that mother Rafaela later told him that he
should not have done so. Just as in the case of' Angel Gon-
zales, however, this is patently incredible since the signing
took place, according to Joey, on or about January 10, and
the card bears the date of February 24. It is therefore
found that Joey did not date the card in question, but that
an agent of Local 500 later postdated it, consistent with its
general practice in this regard.
Cross-examination of Lujan disclosed the following: His
family receives one of the local newspapers, the San Ber-
nardino "Sun Telegram" on a "daily" basis.3 2 He had
reno that she wanted to sign a card for Local 500, and Moreno gave her five
blank cards shortly thereafter, telling her that he "would call her as soon as
[hel found out when Kroehler was starting to take applications." G. Moreno
further credibly denied that he told Del Gado that signing a card would get
her a job at Kroehler or that he authorized her to tell any other signers
anything to that effect. This is again consistent with Local 500's pattern
generally, and further tends to suggest that Del Gado, at least, said no more
than that which Barrera conceded in the above-cited portion of his cross-
examination.
Rafaela did not testify.
I* One possibility that Joey initially dated the card "January 10" (even
though he claimed the February 24 date as his own). but that a Local 500
agent later erased or otherwise changed the date to "February 24"is ren-
dered doubtful by the fact that the date appearing on Lujan's card (G.C.
Exh. 19 shows no visible evidence of erasure or modification.
32 This is one of the papers through which Kroehler had been regularl)
announcing job openings and interviews since early December. i.e., well be-
fiore Lujan received and signed a card (See Resp Exhs. 7 13.)
180
KROFHI.ER MFG. CO.
worked at other union-represented jobs. had read the card
before signing it, and knew that it authorized ocal 500 as
his representative. When "Mr. Moreno" called him about
the Hilton interviews, Moreno urged ujan to show up at
the Hilton when interviewing started to have a better
chance of getting a job, and also wished him "good luck."
Finally, addressing the question of what mother Rataela
had initially told him about the card, there was the follow-
ing exchange between Local 500's counsel and Lujan:
Q. It could have been, could it. that she simply said
look, these cards are being passed out. If you sign a
card and go down, you might get an interview, earlier
notice of an interview; is that correct?
A. How do I know. I mean she told me what ou just
said, you know, about the card. Emphasis supplied.]
Once again. as in the case of Barrera, supra, Lujan's sec-
ond version substantially negates any suggestion that his
mother told him (whether before or after signing) that the
authorization card was a "ticket" to a job at Kroehler.
Rather, the second version implies no more than a message
that signing a card would enable Local 500 to give Lujan
advance notice of interviews,"3 and, in that very limited
sense, that signing a card might "help" him get a job at
Kroehler. Accordingly, I find that, without regard to the
timing of mother Rafaela's remarks, she conveyed no more
than the latter message.
Joey Lujan was the last of the card-signer witnesses,
whose cards were used in the March 7 card check. who
were presented by the General Counsel prior to a 4-day
recess of the hearing. The General Counsel had indicated
immediately prior to the recess that the government had no
further witnesses to present and that it was prepared to rest.
After further colloquy, however, the General Counsel
stated that the government wished to review its case thus
far, with the possibility that it might attempt to locate and
call additional witnesses during the trial hiatus. Upon re-
sumption of the trial 4 days later, the government presented
three additional witnesses who had not been previously
contacted during the original investigation or during initial
pretrial preparation.
Daniel Espinoza
Espinoza was the first postrecess witness and his credited
testimony disclosed that he had never seen nor signed an
authorization card, although a card purporting to bear his
signature had been received by Local 500 and had been
used on March 7 to establish its "majority" during the
F.M.C.S. card check.Y This was clearly a unique circum-
31 Which notice Lujan (and. presumably other card signers. as well) could
as readily have received from perusal of the classified section in the dail
newspaper.
3 Based on Espinoza's own credited account. he eventually learned from
his mother-in-law, only after he had started work at Kroehler. that she had
completed "a card" (without further explanation) for him, including signing
his name to it. His mother-in-law also told him that she had gotten the
"card" from a "friend" and had turned it back to the friend after completing
it on his behalf She added at the time that she hoped Espinoza was not
angry with her for having done so without his knowledge, and Espinoza told
her that he was not---that since she had helped him get a job. he had no
complaints Such testimony was clearl hearsay as to the truth of the
stance, unrelated to the factual basis on which the General
Counsel had originally issued the complaint herein. and op-
posing counsel objected to an alleged I I-hour expansion of'
the complaint. I ruled that the complaint. particularl in its
assertions that Local 500 did not have an "uncoerced ma-
jority" when it received recognition from Kroehler. was suf-
ficiently broad to permit proof that might show that such a
"majorit " was lacking. in part. because a card used to
prove the same had never been seen. signed. nor ratified hb
the purported signer prior to its use in the card check. Nei-
ther Kroehler nor l.ocal 500 sought a recess to investigate
this testimony.'1 and no other discernible basis exists for
refusing to consider it because of "prejudice" to those par-
ties.
Crediting Espinoza. he was unaware of any job prospects
at Kroehler and of the existence of ans "cards" relating to
Kroehler until he got a call from E. Moreno9 in earl' Feb-
ruary. While E. Moreno did not "recall" making a specific
telephone call to Etspinoza and denied making ans of the
remarks discussed below to anyone, I do not credit him in
this regard. His claimed inability to "recall" and his denials
were lacking in conviction and were part of a lengthy cata-
logue of denials which were frequently uttered even before
l.ocal 500's attorney had completed his questioninig. B!
contrast. Espinoza struck me as a sincere and careful 'vit-
ness. albeit a somewhat troublesome one. due to his out-
bursts during cross-examination.
The conversation between E. Moreno and spinoza was
as follows: Moreno introduced himself' bh name"7 and asked
Espinoza whether he vwas "working set." When Espinoza
said that he was not. Moreno told him he had a '' "good
chance" of getting a job ift' he were to make application at
the Hilton on the following Monda, (February 6, as it
turned out, based on the date of the application form coin-
pleted by Espinoza after he flollowed up on Moreno's sug-
gestion). Puzzled, but appreciative. Espinoza aisked Moreno
mother-in-law 's statement, to pinozla. but, for a variel, ot reason, , .leal
with in existing colloquy among the Judge and counsel. the hearsay testi-
monx was recelsed. There are consideralhe "circumstantial guarantees" ot
the "trustworthiness" of the hearstis material for. at least, limited purposes
(Fed. R. Eid., Rule 803 28 S (A) That is. such testiimin? tends to
negate any implicaion that Local s00 had an, responsihility for. or kn'win
role in, the "forgers" of the "Espinoza" card. a suggestion which the Generll
Counsel expressly disclaimed in an eent Accordingly, I relh on said hear-
say for the limited purpose of concluding that some third-part? "solunteer"
completed Espinoza's card and that Local 500 plaed no knowing role in
that process
35 The testimoni did not amount to a "surprise" at least to Kroehler,
since. as is discussed below. Kroehler had intersiewed and tken a saterment
on the subject from Espinoza during its own nsestigation into the underl?-
ing charges some 4 months before he hearing
" General Counsel's unopposed motion to correct the transcript to chiltge
"l.ouis" to "Elis." made on briel is herehb granted as being n specific
accord with my own recollection o the name which Espinoza used at that
stage of his testimony. "''Els" Moreno is fturther ituund to be t hlio Moreno.
" Espinoza specificall 3 denied that Moreno mentlioned ans associatlon
with Local 500 or "a union." which I find doubhtful but nt o sufficient
moment to require a resolution As found hereafter, nothing in the subse-
quent conversation put EspinoaLi on specific notice that Ltocal t0 had a card
purportedl signed h spminroa hl h uuthorl:ed thal i ,i hi Ih, Irl:,ict
repri'senratizi at rohcr Thus. \lotreno' Ilter rlerence to h. ln . ".ial"
from lFspinoza did nt create ,i sltuati ,n .here t-spinoa's Ilalire to retrice
or disasow the "card" amounted to a "rllficallion"' r "adopion" t thle
authiorization crd submitted Io l.ocal s51) uithoit his knos leig h .i thirlr
partsx solunteer
181
DI-('ISIONS OF NA'IIONAL L.ABOR RELATIONS BOARI)
how he had gotten Espinoza's name and telephone number.
Moreno replied that Espinoza had "filled out a card."
(without further specificity as to the nature of the card).
Espinoza protested that he had not tilled out a card and
Moreno said that he had, finally adding jokingly: "You
probably were drunk." Espinoza persisted in his denial.
stating that he was on an exercise and weight loss regimen.
that he had been studying a lot, and that he had only been
drinking milk recently. Moreno laughed these comments
off, saying that Espinoza had probably been "drunk on
milk." The subject then turned again to the job, with More-
no urging Espinoza to appear at the Hilton on "Monday"
promptly at 8 a.m., because he would have a "good chance"
of getting a job if he did so, adding the suggestion that
Espinoza apply for a position as a "materials handler."
Following Moreno's suggestion, Espinoza went to the
Hilton on February 6 and was interviewed by Foy, at
which time, incidentally. Foy replied to Espinoza's question
whether there was going to be a union at the plant by say-
ing, in substance, that there would not be, and that the
company's benefit plan was so good that there would be no
need for union representation. Espinoza was told that he
was hired that same day, and he started work shortly there-
after.
As was noted above, it was not until about 2 weeks later
that Espinoza talked to his mother-in-law who told him
that she had signed "a card" for him which had evidently
set in motion the events which had led to his being hired,
and Espinoza told her, in effect, that he was grateful for her
having done so and had no objections.
In his written statement made to Kroehler's attorneys
during their own investigation of the case in July (Resp.
Exh. 3), Espinoza stated that he had "approved" of his
mother-in-law's actions in completing a card for him.3"
From this, Kroehler and Local 500 argue that Espinoza
knew during the material, pre-March 7 period that the card
in question was an authorization card for Local 500 and
that his "approval" of his mother-in-law's actions
amounted to "ratification" of her having signed an authori-
zation card on his behalf. I reject this interpretation. Espi-
noza's pretrial statement does not make clear when Espino-
za became aware that the card in question was an
authorization card, and Espinoza credibly testified that he
did not learn that latter fact until long after recognition was
granted. This is entirely plausible since, in the ordinary
course of events, the significance of the reference by the
mother-in-law and by E. Moreno to "the card" as anything
more than some kind of job application would not have
occurred to Espinoza until the recognition of Local 500 had
already taken place and said recognition had been called
into question by the Steelworkers' charges. Accordingly, it
is found as a matter of fact that Espinoza was unaware that
anyone had signed his name to a document purporting to
authorize Local 500 as his representative for collective-bar-
gaining purposes at any time before "his" card was put to
use in the March 7 card check.
n1 This was in response to the prewritten form question apparently given to
several employees: "Did you sign a card for the Upholsters [sic] Union (Lo-
cal 500) sometime before March 7, 1978?"
Raul Rodriguez, Angel Quiroz (not called its a witness),
and Jack Mendoza
The cards signed by the three above-named persons were
completed under interrelated circumstances. with testimony
on the subject received only from Rodriguez and Mendoza.
The two last named witnesses were so biased, and so mutu-
ally uncorroborative and contradictory' (and Rodriguez'
own various accounts on direct and cross-examination were
themselves so hopelessly self-contradictor} ) on material
points that the three cards are susceptible of summary dis-
cussion. Suffice it to state at the outset that Rodriguez and
Mendoza are not credited in any of their testimony imply-
ing to the effect that they (or Quiroz) signed cards onl after
assurances that doing so was the way to get work at Kroeh-
ler, or to the effect that the cards were job "application"
forms.
In addition to serious internal inconsistencies, retrac-
tions, and evasions which characterize Rodriquez' overall
testimony and which are too numerous to detail herein.
Rodriguez struck me more than any other card-signer wit-
ness as being determined to find as many ways as possible
to attribute "job inducement" remarks to persons with
whom he talked before signing his own card (which, inci-
dentally, he acknowledged having read before signing and
which he further acknowledged he did not regard as a job
"application" form, even though he elsewhere sought to
claim that the "man on Central" referred to the card as an
"application"). This seeming determination to shape his
own testimony may be attributable to his evident bias and
hostility towards Kroehler, which he conceded in an un-
characteristic moment of candor. He further explained that
this hostility is what motivated him to agree to testify when
a Steelworkers' agent met with him during the 4-day hear-
ing hiatus. His testimony as to what he told Mendoza and
Quiroz before they completed their cards suffered from the
same difficulties. Mendoza's account of Rodriguez' remarks
about the card is quite different from Rodriguez', and is not
independently credible under all the circumstances."
From the credited portions of the testimony of Rodriquez
and Mendoza, I am only able to find as follows with respect
to their cards:
'9 Among numerous other difficulties with their respective accounts. Men-
doza rather vaguely denied that the signature on the card (G.C. Exh. 24
purporting to bear his signature, and which was used in the card check, was
his own. The General Counsel asserts on brief, and it is likely, that Mendoza
was "mistaken" in this regard. The card had already been authenticated
through Rodriguez and had been received in evidence, and a comparison of
that signature and Mendoza's admitted signature on his job application re-
veals no obvious discrepancies in handwriting style. Indeed. Mendoza admit-
ted that he filled out a card given to him by Rodriguez and turned it in, with
Rodriguez and Quiroz, to the "man on Central." but he was reluctant to
identify any of the writing on G.C. Exh. 24 as his own, although he stopped
short of flatly denying it. There being no question that Mendoza completed
and returned a Local 500 authorization card (and only one such card) in the
period before the card check I find that GC. Exh. 24 is that card. It is not
strictly necessary to determine whether the signature on that card is Men-
doza's. it being otherwise clear that he "adopted" its contents. Were it neces-
sary, I would find that the signature was his own and that his failure to so
recognize it stemmed from a desire to do whatever he thought might "taint"
the card, there being independent evidence suggesting his disgruntlement
with Kroehler over having been fired months before the trial. Moreover.
Mendoza's demeanor exhibited during his "study" of G.C. Exh. 24 suggested
extreme coyness.
182
KROEHLER
In "early February.," Rodriguez' cousin, Elisio Flores.
told him that a "man" on Central Avenue had "cards"
somehow relating to a "job." After getting directions. Rod-
riguez went to the home of the "man," was told by him
about good prospects for jobs at Kroehler, and was given
about five authorization cards. Rodriguez signed one, gave
two others to Mendoza and Quiroz. which the, completed
except for the date, and further gave cards to three other
persons who signed them. Those latter three were not used
in the March 7 card check, however, either because the
signers were never hired, or were hired after March 7.
Rodriguez. Mendoza, and Quiroz later went together to
the home of the "man on Central" and returned their re-
spective cards to him. Later, acting on a message trans-
mitted by Quiroz. they went to interviews at the Hilton and
were hired, starting work before March 7.
Richard Alanis
Alanis signed a Local 500 authorization card in "earls
February," after reading its contents. He received it from
his father, who was employed at a cement plant in the area
which was represented by an unidentified labor organiza-
tion. The father told the younger AlanisO that he had got-
ten the card from a fellow employee at the cement plant.
Neither the father, nor Alanis' mother. who were both pre-
sent when young Alanis got the card, were called to testify.
Crediting young Alanis, whose testimony was essentially
consistent on the point, his father told him that a "furniture
plant" was going to be opening in the near future. The
father gave Richard a blank Local 500 card, advising him
to fill it out and mail it in, and further commenting that
young Alanis "would have a good chance of getting a job."
Alanis misplaced the card and did not relocate it for
about a week. When he again found it, he completed it and
mailed it to Local 500. Although he did not recall the de-
tails, he got word that Kroehler was interviewing at the
Hilton4' and presented himself at the scheduled time. He
was hired near the end of February.
V. ANALYSIS AND (ONCIAISIONS
A. The Question of "Agency"
The foregoing credited testimony discloses that the al-
leged "coercion" surrounding the signing of cards stemmed
almost exclusively from remarks made by relatives, friends,
and coworkers of the card signers.42 With the case in this
40 Who resides at a different address from his parents' and is. therefore.
presumably. "emancipated."
41 Without being certain that this was his source of the information about
the interview. Alanis recalled that his mother had seen something in the
newspaper about Kroehler's holding job interviews at the Hilton.
14 In the case of Angel Gonzales, although he spoke with Local 500 agent
E. Moreno before signing his card, it was found that Moreno did not make
any of the "inducements" attributed to him by Gonzales but. rather, simply
pointed out that Gonzales had failed to sign the card. which resulted in
Gonzales' affixing his signature to it. In the case of Alfred Garcia, G. More-
no spoke with him before Garcia had agreed to return his card under circum-
stances where it could fairly be said that Moreno's remarks amounted to
"solicitations" or "inducements." Accordingly, fronm the credited evidence.
Alfred Garcia's case was the only exception to the otherwise uniform pattern
of "solicitation" by nonemployees of l .ocal 500.
18X3
posture. both Kroehler and the General Counsel devote
substantial argument on brief to the question whether or
not those types of "solicitors" may be treated as "agents" of
Local 500. Indeed, Kroehler argues on brief that there was
never a primal filie showing that such relatives. friends. and
coworkers were Local 500's agents. and therefore urges that
this case can be quickly disposed of on this ground
alone." B contrast, the (ieneral Counsel asserts that l.ocal
500 cannot escape liability for the acts ot such "third per-
sons" when it "gav the cards to those third persons, and
then instructed (or it filed to instruct) those third persons
in the manner in which they were to solicit signatures."
[Emphasis in original text.]
To the extent that Kroehler argues that the complaint
herein must be dismissed for failure to prove that the "solic-
itors" in question were. in a strict legal sense. "agetnts" of
Local 500, it is an argument which I am unable to accept as
applicable to a case of this type. Ordinarily, proof of an
agency relationship is important only when the ultimate
issue is whether the purported "principal" has iolated
some provision of the Act, or has engaged in objectionable
conduct warranting setting aside an election {see discussion.
inf1 a). By contract. for example. in cases raising the issue
whether a bargaining order remedy must be imposed to
remedy employer misconduct, the critical issue is whether
authorization cards signed by employees may be taken as
reliable evidence that the card signers desire union repre-
sentation.4 Resolution of that issue. in turn. depends on the
circumstances under which the card was signed usutall.
whether or not the card solicitor (often a fellow etnploee
"volunteer" rather than a paid union "agent" ) employed
coercion or some fraudulent inducement to obtain the card
signature.
Kroehler cites a portion of one Board case, appl ing (ti -
sel, suipra, which calls into question the above anal ,sis.
Thus, in Beaver Bros. Baking Co.. Inc. d /a .4nlcrican
Beautv Baking Co., 198 NLRB 327 (1972), the Board, after
a close analysis of the evidence surrounding the signing of
an authorization card by employee Moore. concluded that
certain remarks hby a fellow employee, Condron, a card "so-
licitor," were "in the nature of reassurance, rather than co-
ercion." B eaver Bros.. supra at 328. In language specifically
relied on bv Kroehler. however. the Board added (Iil,
Further, the record is devoid of an' eidence that (on-
dron was an agent of the Union so as to hind it in ans
way or that the Union ratified the statement.
4N1. R B s. Gosre Packing C(o. Inc., 395 U.S. 575. ) 60I9 (19t68)
4 That a solicitor's "agency" relationship with the Inion is not .: illa terlI
issue for purposes of application of the tests for aluthoril ion card alli, ,it
set forth in (;Gsel, upra, ma, he inferred from the (Court' dehheralc ,e . ot
the term "union adherent." rather than "union agent." as In the fIllo .,lg
passage 395 UIS at 606):
IElmployes should be bound by the clear language A's haI the\ sgn
unless that language is deliberately and clearly canceled hi ai u,, ii, i
herent with words calculated to direct the signer to disregarld anl torgcl
the language abose his signature [Emphasis supplied
That the Court's choice of terms was deliberate is underscored lurther ll the
same portion of its opirion wherein it noted that. in one oI the undorl iltg
cases consolidated for purposes ol re\ iew,. I1lc, Ak In,.
the emploees handled the card dri e thcmseles Irerm hbeginan ig i
end, contacting the union. obtaining the blank authorlzaton cards. lidr
soliciting their elloa employees on that basts: n Ilnlor iens s Cre
insolved in the card signing IEmphasis su pplied I
DE.(CISIONS OF NATIONAL ILABOR RELATIONS BOARD
Because the Board had already determined that Con-
dron's remarks were noncoercive, I am strongly disposed to
treat the cited sentence as ohiter dictum and of no preceden-
tial significance absent further clarification from the Board.
Thus, in support of that sentence, the Board cited Jas H.
Matthews & Co., 354 F.2d 432 (8th Cir. 1966), which, at
page 437, contains language which appears to be equally in
the nature of dictum. The Board also cited Bronze Allo.vs
Company, 120 NLRB 682 (1958), in which, considering
postelection objections. the Board rejected the contention
that an individual employee's conduct warranted setting
aside an election, absent evidence that the petitioning union
"authorized" or "ratified" the conduct in question. This lat-
ter case. however, is distinguishable as involving an "objec-
tions" context in which it has long been the rule that, except
in extraordinary cases of "pervasiveness," misconduct
which is not attributable to a "party" to the election may
not be invoked to set aside the results of an election. See.
e.g., N.L.R.B. v. Monroe A4uto Equipment C'o., Hartwell Di-
vision, 470 F.2d 1329. 1332 (5th Cir. 1972), and authorities
cited therein.
This doctrine of giving little or no weight to statements or
conduct of"third parties" in considering objections to elec-
tions also explains the holdings in cases cited b Kroehler
in further support of its position and appearing at page 55
of its brief. The policy underlying the emphasis on the
"agency" issue in such cases is well explained in one of the
cases cited by Kroehler, N.L.R.B. v. Sauk PValley Manufac-
luring Co., Inc., 486 F.2d 1127, 1131 32, esp. footnote 5
(9th Cir. 1973). And the policy as there described would
clearly appear to relate only to election situations, where
the effects of potentially coercive statements of a "third-
party" are likely to be minimized by the opportunity to
hear other views during the normal "give-and-take" of em-
ployer and union preelection campaign activities. Thus, it is
understandable that in such cases, as a matter of policy,
such "third-party" conduct would not ordinarily be treated
as sufficient to overturn an election, absent additional evi-
dence that the employer or union authorized or ratified the
conduct in question.
However, the ultimate question in the present case is es-
sentially similar to those presented in bargaining order
cases under Gissel, supra, that is: Were the cards used to
obtain recognition from Kroehler, considering the circum-
stances under which they were signed, sufficiently reliable
evidence that a majority of employees desired representa-
tion by Local 500 to render said recognition lawful? For the
reasons discussed above, I conclude that the question of the
card solicitors' "agency" relationship with Local 500 is, es-
sentially, superfluous to a resolution of that issue.4 5 The real
question remains; namely: Did the solicitors, in a legally
significant number of instances, obtain card signatures
through coercive or fraudulent means?
B. Conclusions as to the Validity of the Signed Cards
Having determined, in essential agreement with the Gen-
eral Counsel's position that what was said to card signers is
" Accordingly, while one or more of the solicitors in question might.
through an attenuated reasoning process, be labelled "agents" of Local 500,
it is unnecessary to. and I do not, make any specific findings in that regard.
of considerably greater importance than whether or not the
solicitors were "agents" of Local 500, it is nevertheless con-
cluded that the General Counsel has failed to show in a
sufficient number of instances that card signers were
fraudulently or coercively induced to affix their signatures
to unambiguous authorization cards. Put another way,
adapting the Gissel standard to this case, it is found that all
but two of the cards called into question did not involve
solicitations which "deliberately canceled" the "clear lan-
guage" on the cards by use of "words calculated to direct
the signer to disregard and forget the language above his
signature." Gissel. 395 U.S. at 606.
At the outset, it is concluded that G. Moreno's state-
ments to Alfred Garcia to the effect that the card was not a
"binding contract," that there were "no strings attached" to
signing the same, and that it would be used simply to show
sufficient employee "interest" to "enter" the Kroehler plant
for "recruitment" purposes, had exactly the "cancellation"
effect discussed in the above-referenced Giss..el passage. The
unique circumstances surrounding the use of the card pur-
portedly signed by Daniel Espinoza, but which he had nev-
er seen nor adopted, also warrants the conclusions that that
card could not have been used to prove Local 500's major-
ity status during the March 7 card check. These conclu-
sions, however, do not seriously undermine Local 500's ap-
parent "majority" on March 7 of 46 out of 83 employees.
The extraordinary circumstances involved in Alfred Gar-
cia's and Daniel Espinoza's cases, however. were not part of
the "pattern," such as it was, involved in the solicitation of
the remaining 10 cards challenged by the General Counsel.
As to that remaining group, as is shown by the following
summary recapitulation of the credited evidence, there was
no "clear and deliberate" solicitory misconduct "calcu-
lated" to "cancel" the plain authorization language on the
cards:
1. Angel Gonzales: No credible evidence of aney solicitory
inducements whether presigning or postsigning.
2. Cynthia Garcia. Her mother made, at best, the am-
biguous statement' that a "friend" had some "union cards
to get a job at Kroehler." After "think[ing] about it" for a
few days, Cynthia got a card, read it, and signed it. That
Cynthia "assumed," without ever being so told, that Local
500 was already recognized at the plant, and that there was
a "union shop" rule in effect, in no way negates her adop-
tion of the "authorization" language on the card.4 7
4 "at best . .ambiguous," because I would more readily interpret such a
statement as merely being the equivalent of a statement by her mother: "I
have a friend who has some union cards in connection with getting a job at
Kroehler." Likewise. when G. Moreno called Cynthia to urge her to go to
the Hilton for an interview and asked whether she had signed a card "to get
a job at Kroehler." it would require a great deal of straining to infer that
Moreno was somehow. ex pos facio, trying to tell Cynthia that the card she
had signed was, itself, the means through which one "gets" ajob at Kroehler.
As Cynthia and others elsewhere acknowledged, and what is. in any case.
obvious. one "gets" a job from an employer not by signing a union autho-
riation card. Further. whatever misimpression Cynthia and others may have
privately entertained about the cards' possible use and "tickets" to a job
must have been substantially dissolved by repeated instructions to Cynthia
and other card signers by the Moreno brothers nul to tell Kroehler interview-
ers that they had signed cards.
47 "It has been held that an employee's thoughts (or afterthoughts) as to
why he signed a union card, and what he thought that card meant, cannot
negative the overt action of having signed a card designating a union as
bargaining agent." Joy Slk Mills, Inc. v. N L.R B. 185 F.2d 732. 743 )D.C.
('ir. 1950), cert. denied 341 U.S. 914. and cases cited therein.
184
KROEHLER MFG. CO.
3. William Hughes. No credible evidence regarding the
nature of the "inducement," if there was any, other than
Hughes' own desire for union representation, which pre-
ceded his signing. And see comments relating to Cynthia
Garcia, supra.
4. Hart' Goings. From the credited evidence, 4S any re-
marks made which possibly suggested a relationship be-
tween his signing the card and the possibility of a job oc-
curred after he signed; therefore, such remarks could not
have induced him to sign. Moreover, the credited evidence
shows that such remarks were not "linked" to the act of
signing, but amounted to independent observations by his
coworker, Guerrero, that Goings had a good chance of get-
ting a job because of the expected large number of positions
that would be available.
5. Tommy Castro Barrera. From his credited testimony.
he was given only the message that signing a card would
entitle Local 500 to give him early notice of Kroehler's in-
terview schedule and, in that limited sense, that such sign-
ing might be of some aid in getting a job. Such a message
scarcely "cancels" the plain "authorization" language of
the card and it is concluded that Barrera "bound" himself
thereto in the sense in which Gissel employs that term. Nei-
ther is such a limited and truthfiul "inducement" the type of
"promise of . . . a tangible economic benefit" that caused
the Board to invalidate cards obtained under false promises
of "$500 free life insurance" in D. H. Oermever Co., 170
NLRB 658 (1968).
6. Joey Salcedo Lujan. From the credited testimony, any
remarks relied upon by the General Counsel to "taint" Lu-
jan's card were not shown to have occurred before signing:
and, as in the case of Barrera. supra, what his mother did
say to him (i.e., signing the card would entitle him to early
notice from Local 500 of Kroehler's interview schedule)
would not serve to invalidate the card in any case.
7. Raul Rodriguez. No credible evidence on which to
conclude that he received any third-party inducement to
sign, let alone credible evidence of misrepresentation hav-
ing the "cancellation" effect discussed in Gissel. supra.
8. Angel Quiroz: See discussion of Rodriguez. supra.
9. Jack Mendoza. See discussion of Rodriguez, supra.
4' The testimony of Goings and other witnesses has been considered in the
light of the Court's apt observation in Gissel that "employees are more likely
than not, many months after a card drive . to give testimony damaging to
the union." 395 U.S. at 608.
10. RichardAlanis: His father gave him a card, suggested
that he sign it, and further indicated the opinion that Rich-
ard had a good chance of getting a job. Such a statement
from the father is hardly indicative of a "deliberate" desire
to "cancel" the "authorization" language on the card. Nor
would I readily infer that his father, himself emplo,,yed at a
union-represented plant. would mistakenl' belie~.e. or seek
to communicate to his son, that signing a card would, in
itself. "get" him a job at Kroehler. I conclude that Alanis
likewise "bound" himself to the plain language on the card
without having been misled by his father as to its purpose.
Having determined that the General Counsel has failed
to meet its burden of rebutting the presumption that Local
500 represented an uncoerced majority of Kroehler's em-
ployees in an appropriate unit as of the March 7 grant of
recognition, 4" I hereby render the following:
CON(I.t SIONS ()1 LA W
I. Kroehler is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Local 500 and Steelworkers are both labor organiza-
tions within the meaning of Section 2(5) of the Act.
3. Kroehler did not commit unfair labor practices as al-
leged in the complaint b recognizing Local 500 as the ex-
clusive collective-bargaining representative of its employees
in the unit in question, an appropriate unit, nor by there-
after executing a collective-bargaining agreement with Lo-
cal 500. nor by implementing and enforcing its terms.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER'O
The complaint is dismissed in its entirety.
4" WalAer's .idstream Furl & Serice Co. upra. American Beef Packer,.
Inc. supra
x0 In the event no exceptions are filed as provided b) Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions. and recommended Order herein shall, as provided in Sec 102.48
of the Rules and Regulations. be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
uaived for all purposes
185