Cayey Manufacturing Co., Inc.

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