Coamo Knitting Mills, Inc.

COAMO KNITTING MILLS, INC. 579 is that while the complaint alleges that Engineers prevented his transfer to Bateson- Cheves because of his lack of affiliation in Engineers , the testimony reveals that Mascarenas, at Dunn's urging, chiefly attempted to get clearance through Teamsters. He was at the time of the attempted transfer a member of another Teamsters local on a withdrawal card; testified that he discussed transferring to the contracting local with Giger, the Teamsters representative , that Giger told him the transfer fees, etc., would amount to about $25; and that, because he did not have this amount on him in cash , Giger in effect refused his transfer . Giger admitted discussing the transfer fees with him; denied having refused him a transfer ; and testified, credibly I believe, that because Mascarenas was employed by Dunn as an operator , he came under the jurisdiction of Engineers , and he, Giger, lacked the authority to give him job clear- ance as an engineer . There is no question that Mascarenas was willing and eager to affiliate with the contracting Teamsters local or with Engineers . I am unable to find that the evidence preponderates in support of a finding that he was denied trans- fer to the Bateson-Cheves payroll, by either Teamsters or Engineers , because of his union affiliation or lack of it. Finally, there is the testimony of Guy Stocks, a truckdriver , who was one of the Dunn employees transferred to the Bateson-Cheves payroll , that on being interviewed by Giger, the latter told him he would have to make application in Teamsters in order to be transferred . Stocks testified that he wanted to affiliate with Teamsters, and inasmuch as it is clear from his own testimony that he would have applied for membership in Teamsters on an entirely voluntary basis , it is puzzling to say the least, that Giger would have felt called upon to use pressure in signing him up. Furthermore, this is the sole evidence that Dunn or Hassel employees were told, at' any time, by a representative of either Teamsters or Engineers , that their continued employment was conditioned on their applying for membership . Under such cir- cumstances I am unable to give Stock's testimony credence over Giger's denial. It may well be that he, like Cheves , considered clearance through a union hiring hall and union affiliation one and the same thing. For the reasons aforestated and upon consideration of the entire evidence , I shall recommend dismissal of the complaint in its entirety. CONCLUSIONS OF LAW 1. Respondent Bateson-Cheves is, and has been at all times material to the issues in this proceeding, an Employer within the meaning of Section 2(2) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent Engineers and Respondent Teamsters are, each of them, labor organizations within the meaning of Section 2 (5) of the Act. 3. The Respondents have not engaged in any of the unfair labor practices alleged herein. RECOMMENDED ORDER It is recommended that the complaint be dismissed in its entirety. Coamo Knitting Mills, Inc. and Federacion Puertorriquena de Sindicatos Democraticos International Ladies' Garment Workers' Union, AFL-CIO and Federacion Puertorriquena de Sindicatos Democraticos. Cases Nos. 24-CA-1806 and 24-CB-476. December 203, 1964 DECISION AND ORDER On May 11, 1964, Trial Examiner Sidney S. Asher, Jr., issued his Decision in the above-entitled proceeding, finding that the Respond- ents had engaged in and were engaging in certain unfair labor prac- tices, and recommending that they cease and desist therefrom and take certain affirmative action , as set forth in the attached Trial 150 NLRB No. 35. 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Examiner's Decision. The Trial Examiner also found that the Respondents had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, the Respondents filed exceptions to the Trial Examiner's Decision and supporting briefs. 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 [Chairman McCulloch and Mem- bers Fanning and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner only to the extent consist- ent with the findings, conclusions, and order set forth below. The complaint in this case alleged that the Company had engaged in extensive conduct which constituted unlawful assistance and sup- port to the International Ladies' Garment Workers' Union, AFL- CIO (hereinafter called ILGWU or the Union). These allegations included the following : (1) On July 15, 1963, at a time when none of the Company's employees had designated the ILGWU as bargain- ing representative, the Company entered into an agreement with the ILGWTJ under which the latter was recognized as the exclusive bar- gaining representative of the employees, and the employees were to receive a wage increase of 5 cents per hour, 2 weeks' vacation, and five paid holidays; (2) on July 16, 1963, Company Vice President Wolf addressed the employees and indicated to them that the Com- pany desired the employees to join the ILGWU and stated that they would receive certain economic benefits "upon becoming mem- bers of the ILGWU"; (3) on July 17, 1963, Wolf permitted repre- sentatives of the ILGWU to address the Company's employees dur- ing working hours in the presence of company representatives, and told the employees that the Company had agreed to recognize the Union and that it would sign a contract with the benefits indicated above; (4) at the same meeting, representatives of the ILGWU, in the presence of company representatives, distributed to the assem- bled employees cards which were combined applications for member- ship in the ILGWU, designations of the ILGWU as bargaining representative, and checkoff authorizations; 1 (5) shortly after this meeting the Company permitted ILGWU representatives to conduct an election among the Company's employees in the plant during IOf the 145 to 150 employees who attended the meeting ( out of a total work force of approximately 170), 144 signed cards and returned them to ILGWU representatives by the conclusion of the meeting. COAMO KNITTING MILLS, INC. 581 working hours for the selection of an employee committee to act with ILGWU officials in preparing the final draft of the contract to be executed by the Company; and (6) on July 19 and 20, 1963, representatives of the Company and ILGWU agreed upon a final draft of the contract which incorporated the previous agreement reached by the parties on July 15, 1963, and included union-shop and checkoff clauses. As the Trial Examiner noted, the last allegation was premised, in essence, on the General Counsel's contention that an agreement between the Company and ILGWU had been reached on July 15, 2 days before the July 17 meeting at which a majority of the employ- ees authorized the ILGWU to represent them for purposes of col- lective bargaining. The Trial Examiner found, however, and we agree, that the General Counsel failed to prove by a preponderance of the evidence that the Company and ILGWU reached any agree- ment concerning terms and conditions of employment of the Com- pany's employees prior to July 19. He further found, and we agree, that, contrary to allegations of the complaint, Wolf's speeches to the employees on July 16 contained neither promises of benefits to induce the employees to join the Union, nor threats of reprisal if they failed to do so, and that the speeches did not exceed the permis- sible limits of Section 8(c) of the Act 2 Of the remaining allegations, the Trial Examiner found that, with respect to events on July 17, the address and the distribution of cards by union representatives occurred during the working time of 5 of the Company's approximately 170 employees; that Wolf intro- duced the ILGWU spokesman; that the ILGWU was permitted to use company property (and, for 5 employees, company time) for the selection and meeting of an employee shop committee; and that Company Representative Angel Galinanes was present during the above-mentioned address and distribution of union cards to the employees. These, he held, were sufficient to support a finding of unlawful assistance. We do not agree. The Trial Examiner attached critical importance to Galinanes' presence at the July 17 meeting which, he found, "necessarily had a coercive effect" on the employees present. The record herein does not support this conclusion. It is admitted that Galinanes was not standing in a position that would have enabled him to observe indi- vidual employees signing cards. To the contrary, Galinanes credibly testified that during the meeting, he stood on the floor apart from the employees, and that he could not and did not see any employees signing the cards. His testimony was corroborated in this respect 8 The text of wolf's speeches is attached as Appendix A to the Decision of the Trial Examiner. 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by employee Matos. Galinanes further testified, and the Trial Examiner found, that management made no attempt to ascertain which employees even attended the meeting. We deem this evidence insufficient to support a finding that the mere presence of Galinanes at the meeting had the effect of coercing the employees in their selection of the. Union, thus -tainting its majority status at the conclusion of this meeting. Nor do we think that the Union's status as lawful majority rep- resentative was impaired by the fact that the meeting took place on company property and during the working hours of five of the employees. We have held that the use of company time and prop- erty does not, per se, establish unlawful support and assistance. Rather, each case must be decided on the totality of its facts .3 Here, both at the time of the Union's request to address the employees and at the time of the meeting, neither the Employer nor the ILGWU was aware of organizational activity by any other labor organiza- tion. Thus, the request, the Company's approval, and the meeting itself all took place in a one-union context' Additionally, as noted by the Trial Examiner, the meeting began at 4 p.m., at the end of the workday for all but five of the employees. We think that the use of company time for these few employees, who comprise but 3 percent of the total work force, is subject, under the circumstances of this case, to the application of a de minimiis rule. We conclude, therefore, that the totality of the facts herein dem- onstrates that the ILGWU was freely chosen by a majority of the employees as their bargaining representative at the 4 p.m. meeting on July 17. There remains for consideration only the use of company property for the election and subsequent meeting of the shop committee later on July 17. We think it significant that these events took place after a vast majority of the employees had selected the ILGWU as their bargaining representative. In this perspective, and under the circumstances here involved, we view the election and meeting of the shop committee as falling within the permissible limits of employer cooperation with the duly selected majority representative of his employees. In sum, while the conduct found unlawful by the Trial Exam- iner might, under different circumstances, be considered as evidenc- ing interference or assistance violative of Section 8(a) (1) and (2) and 8(b) (1) (A) of the Act, we cannot say that the record as a 3 See Manuela Manufacturing Co., Inc., 143 NLRB 379. * See Local 13$5, Retail Clerks International Association, AFL-CIO v. N.L.R.B. (Topps Kerrmill, Inc.), 325 F. 2d 293 (C.A. 1, 1963) ; and compare The Welch Scientific Com- pany, 146 NLRB 1451. COAMO KNITTING MILLS, INC. 583 whole supports such a finding of illegality in the instant case. The Board has previously refused to condemn as violative of the Act conduct substantially identical to that which the Trial Examiner would find unlawful in this case.5 For all the above reasons, we find that the Respondents have not violated Section 8(a) (1) and ( 2) and 8(b) (1) (A) of the Act. Accordingly, we shall dismiss these allegations of the complaint. Therefore, and since the ILGWU represented an uncoerced majority of the employees when, on July 20, 1963, it signed the agreement with the Company containing union-security and checkoff clauses, the derivative 8(a) (3) and 8(b) (2) allegations based thereon must also be dismissed. [The Board dismissed the complaint.'] Jobog Sportswear, Inc. and Jonathan Logan, Inc., 128 NLRB 886 , petition for review dismissed sub nom. Kimbrell v. N.L.R.B., 290 F. 2d 799 (C.A. 4). Member Brown concurs in the result. TRIAL EXAMINER'S DECISION On July 26, 1963 , Federation Puertorriquena de Sindicatos Democraticos , Santurce, Puerto Rico, herein called the Federation, filed charges in Case No. 24-CA-1806 against Coamo Knitting Mills, Inc., Coamo , Puerto Rico, herein called the Company.' On August 26, 1963 , the Federation filed charges in Case No. 24-CB-476 against International Ladies' Garment Workers' Union, AFL-CIO, Santurce, Puerto Rico, herein called the ILGWU.2 On September 25, 1963, the General Counsel 3 consoli- dated the cases and issued a consolidated complaint . The consolidated complaint alleges that since on or about July 15, 1963, the Company has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed them in the Act, and has rendered unlawful assistance and support to the ILGWU in certain specified respects . It is further alleged that on or about July 19, 1963, representatives of the Company and the ILGWU agreed upon a final draft of a contract which incor- porated union shop and monthly checkoff clauses. It is also alleged that such con- duct by the Company violated Section 8(a) (1), (2 ), and (3 ) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act. Finally, it is alleged that by the above-described conduct the ILGWU caused the Company to violate Section 8 (a)(3) of the Act, and thereby itself violated Section 8(b)(1)(A) and (2 ) of the Act. Thereafter, each Respondent filed a separate answer denying the material allegations of the consolidated complaint . Each Respondent also asserted, as an affirmative defense, that the Company is engaged in the apparel and clothing industry, and that therefore both Respondents have engaged in lawful activi- ties pursuant to the proviso to Section 8(e) of the Act, pertaining to the apparel and clothing industry. Upon due notice, a consolidated hearing was held before Trial Examiner Sydney S. Asher, Jr., at Ponce, Puerto Rico, from November 13 to 22, 1963, both dates inclu- sive. All parties were represented and participated fully in the hearing. At the close of the hearing, each of the Respondents moved to dismiss the consolidated complaint for lack of proof. Ruling thereon was reserved. For reasons contained herein, these motions are now denied . After the close of the hearing, each of the Respondents filed a brief. These briefs have been duly considered. 1 On August 26, 1963, the Federacion filed amended charges against the Company in Case No. 24-CA-1806. 2 The Company and the ILGWU are referred to collectively herein as the Respondents. S The term "General Counsel" refers to the General Counsel of the National Labor Relations Board and his representative at the hearing. 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in these cases,4 and-from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Company is, and at all material times has been, an Ohio corporation and a wholly owned subsidiary of Colebrook Mills, Inc., which in turn is a wholly owned subsidiary of Bobbie Brooks, Inc. The Company is duly registered and certified to do business in the Commonwealth of Puerto Rico, and maintains its principal office and place of business in Coamo, Puerto Rico, where it is engaged in the manufacture of ladies' full-fashioned sweaters. During the 12 months prior to September 25, 1963, the Company received at its plant in Coamo, from sources outside the Com- mohwealth, materials valued at more than $50,000. During the same period the' Company shipped from its Coamo plant, directly to destinations outside the Com- monwealth, products valued at more than $50,000. In view of the foregoing I find that the Company is, and at all material times has been, an employer engaged in commerce within the meaning of the Act, and that it would effectuate the policies of the Act for the Board to exercise its jurisdiction in these cases. If. THE LABOR ORGANIZATIONS INVOLVED The consolidated 'complaint alleges, the answers each admit, and it is found that the ILGWU is, and at all material times has been, a labor organization as defined in the Act. The consolidated complaint further alleges that the Federation is, and at all mate- rial times has been, a labor organization within the meaning of the Act. At the hear- ing, the ILGWU disputed this allegation. The undenied testimony of Francisco Velazquez, president of the Federacion, indicates that the Federacion has a constitu- tion and bylaws, and approximately 500 members in 6 locals, that employees partici- pate in its activities, and that it exists for the purpose of dealing with employers. Indeed, Velazquez testified without contradiction that at the time of the. hearing the Federation represented employees for the purposes of collective bargaining with their employer, and had negotiated a contract with the employer governing terms and conditions of employment. Accordingly it is clear, and I find, that the Federacion is, and at all material times has been, a labor organization as defined in the Act. III. THE UNFAIR LABOR PRACTICES A. Facts At all material times, the Company has employed approximately 170 workers. Some departments operate at times on three shifts. The majority of employees work on the first shift, which ends at 4 p.m.; a few employees sometimes work on the second and third shifts which, when operating, commence at 4 p.m. and midnight, respectively. The physical plant consists of two separate buildings (called building No. 1 and building No. 2) connected by a passway. Outside the buildings, but still on the Company's premises, is a shelter used by some employees for eating lunch, referred to herein as the lunch shelter. Prior to June 1963 the Federacion had attempted to organize the Company's employees. However, this activity was carried on in secret and the Company did not learn of it until July 18,5 as described below. So far as the record shows, prior to June the Company did not know of any interest shown by its employees in self- organization, no union had demanded bargaining rights on behalf of the Company's employees, and the Company had never recognized any union as their bargaining representative. a During the General Counsel' s case-in-chief, the ILGWU's attorney moved to strike as irrelevant and immaterial all testimony regarding the supervisory status of Gladys Rodriguez. The motion was denied. This ruling is now reversed and the motion granted, on the ground that determination of Rodriguez' supervisory status cannot affect the Issues herein, and Is therefore unnecessary. During direct examination of witness Jerry Schoen by the ILGWU's attorney, the witness was asked how word was sent to members of the shop committee that there would be a meeting. The witness replied: "I am not certain," then went on to speculate. The remainder of his answer, from p. 856, 1. 20, to p. 857, 1. 21, is hereby stricken as speculative. 5 All dates hereafter refer to the year 1963, unless otherwise noted. COAMO KNITTING MILLS, INC. 585 In the last half of June Jerry Schoen, regional director in Puerto Rico for the ILGWU, telephoned Richard B. Wolf, vice president of the Company, and requested an opportunity to address the Company's employees. Wolf replied that he was about to leave Puerto Rico; but expected to be back in 3 or 4 weeks and would then contact Schoen. Wolf returned to Puerto Rico on July 15 and telephoned from San Juan to Coamo, speaking to Angel M. Galinanez, the Company's plant manager. Wolf stated that Schoen would probably try to organize the Company's employees for the ILGWU, and told Galinanez that "if [Schoen] came around he was welcome." Wolf then contacted Schoen and arranged for Schoen to come to Coamo and talk to the Company's workers on July 17. On July 16 Wolf arrived in Coamo, showed Galinanez a speech he had written in English, and asked Galinanez to interlineate the Spanish translation. This was done. Between 10:30 a.m. and 3 p in. that day Wolf spoke to five different groups of the Company's employees in the lunch shelter, where they had been summoned by Galinanez for that purpose. Each meeting lasted for approximately 20 minutes. Presumably, all employees on the first shift who were at work that day attended one or another of the meetings. Some effort was made to secure the attendance of employees on other shifts. Thus, Galinanez dispatched an employee in a company vehicle to the home of William Calixto Matos, a knitter then on the second shift, to inform him of the meetings. Matos in response came to the plant on his off time and attended one of the meetings. He was not paid for doing so. Employees on the first shift who were hourly paid did not suffer any deduction of wages for their attendance, but were paid for the time at their normal rates. Those on piece rate did not receive any allowance for "down time" 6 and therefore lost an opportunity to earn that amount which their normal production would have entitled them to receive for 20 minutes' work. In sum I find that the meetings took place on the working time of most employees, that attendance for employees who learned of the meetings was compulsory, and that some-but not all-of the employees who attended were paid for doing so. On each occasion Wolf spoke in Spanish, reading verbatim from the translation prepared by Galinanez. In substance, he praised the ILGWU and its past relationship with Bobbie Brooks, stated that the ILGWU's representatives would soon solicit the employees to join, and urged the employees to do so. The complete text of the speeches, from which Wolf did not digress in any substantial manner,z is attached hereto as Appendix A. When Wolf had finished reading his speech to one group of workers, employee Edwin Colon asked Wolf, in English, how much the ILGWU dues were; Wolf replied that he did not know. Colon then inquired how the ILGWU dues were going to be paid; Wolf responded that he thought that the [ILGWU] will probably ask for a raise that will compensate for the payment of dues." At another meeting that day, after Wolf finished his talk, employee Blanca Rosa Alvarado remarked at some length that it was a good thing for workers to belong to unions, and asked Wolf, in Spanish, if the employees would receive any literature to help them decide whether they wanted to join the ILGWU. Wolf, speaking through Galinanez as an interpreter, replied that he presumed the ILGWU's representatives would distribute such materials to the employees when they came to the plant. Employee Gladys Rodriguez de Barrios then asked Wolf, in Spanish, whether the ILGWU coming into the plant would cause the Company great expense. Wolf answered, through Galinanez, that the ILGWU would make many demands but that the Company would only grant those benefits which it could afford.' 9 Such allowances were made by the Company when the lost time extended for 30 min- utes or more ; here the meetings did not last that long. 7 This finding of fact Is based upon the testimony of Galinanez, who impressed me as' a sincere, forthright, and cooperative witness, corroborated In part by that of Gladys Rodriguez de Barrios, an employee who attended one of the meetings. Blanca Rosa Alvarado, an employee who attended one of the meetings, testified that Wolf spoke' in English and Galinanez translated for him into Spanish, and denied that Wolf read from a paper. Alvarado's intense zeal for the Federacion's cause permeated her testimony to such an extent that, in my opinion, it adversely affected her ability to observe and report facts accurately. Moreover, she was somewhat evasive on cross-examination. I do not consider her testimony reliable unless corroborated. 8 The findings of fact concerning these meetings are based upon the testimony of Galinanez, as corroborated in part by that of Rodriguez, Alvarado and employee William Calixto Matos With respect to certain aspects of these events, the testimony of Alvardo did not agree with that of Galinanez; insofar as there were conflicts I credit Galinanez' testimony as the more accurate. 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the next day, July 17, Schoen came to the Company's plant in accordance with the arrangements described above. He arrived at about 11 a.m., accompanied by Alberto E. Sanchez, Aida Luz Cruz, and Felicita Cruz, representatives of the ILGWU. Between 11 a.m. and 4 p.m. Schoen conferred with Wolf from time to time on the Company's premises. Just before the end of the first shift, about 3:55 p.m., Gali- nanez announced over the plant's public address system that representatives of the ILGWU would address the employees at 4 p.m. in building No. 1. As the second- shift knitters (who had already clocked in) were about to start working Galinanez told the group: "Boys please stop working, let us go to the meeting." 9 The meeting lasted more than half an hour, and there is a conflict as to whether the second shift employees (who were pieceworkers) were given an allowance for lost time. The General Counsel contends that the meeting began a few minutes before 4 p.m. but the preponderance of the credible evidence indicates otherwise. The General Coun- sel also contends that it can reasonably be inferred that Galinanez' announcement to the first shift employees over the public address system conveyed to these employees the impression that attendance was compulsory. I do not agree, so far as first shift employees are concerned. In sum, I find that the meeting began at 4 p.m., during the nonworking time of most employees but the working time of a few; that employ- ees on the first shift could reasonably infer that they were not required to attend, that they were not paid for attending and no attempt was made by management to ascertain who did and who did not; and that some employees on the second shift (on whose working time the meeting was held) reasonably assumed they were required to attend. I do not deem it necessary to decide whether the second-shift employees were paid for the time or, conversely, were deprived of the opportunity to earn dur- ing that period. Approximately 145 to 150 workers attended. Galinanez was present during the entire meeting; other supervisors may have been present for part of the time. Wolf introduced Schoen, then left. Schoen greeted the employees in Spanish, introduced Sanchez and the Cruz ladies, then proceeded in English, with Sanchez acting as inter- preter. Schoen extolled the ILGWU at great length, emphasizing its size, experience, and policies. He stated that the ILGWU would attempt to secure for the employees an additional holiday, additional vacation benefits, and a better welfare program. He further declared that the ILGWU would not sign a contract in Puerto Rico unless it provided for a wage increase of at least 5 cents per hour. and that therefore if any agreement was reached between the Company and the ILGWU it would have to con- tain a minimum raise of 5 cents per hour. Schoen added that it was not always necessary to "box" with an employer to obtain the desired concessions.10 He urged the employees to join the ILGWU. The Cruz ladies then circulated among the assembled -employees, distributing blank cards.'1 Employees signed the cards and returned them directly to Schoen, or else to Sanchez or to the Cruz ladies, who in turn passed them to Schoen. In this manner Schoen obtained 144 signed cards. All the while Galinanez was present in the area, and personally witnessed employees turning cards over to the Cruz ladies.12 Wolf returned and asked Schoen: "How did you do?" Schoen replied: "Pretty well, I think." Wolf inquired: "How many do you have there?" Exhibiting the stack of cards to Wolf, Schoen answered: "There should be approximately 150 here." Wolf left. Schoen then told the employees to select, by departments, a shop committee; 13 he directed the employees of each depart- 6 The finding of fact regarding this statement is based upon the undenied testimony of William Calixto Matos, a knitter on the second shift. The parties stipulated, and I find, that on July 17 there were five employees working on the second shift: three in the knitting department and two in the pressing department. '° The findings of fact with regard to the contents of Schoen's speech are based upon a synthesis of the testimony of Schoen, Galinanez, Sanchez, and six employees who testified for the Respondents. (Juan Ortiz Miranda, Blasina Hernandez, Felix Lopez Vaz Quez, Roberto Reyez Ayala, Sara Somarriba, and Juana Maria Santiago.) Three witnesses for the General Counsel (Luis Torres Zayas, William Calixto Matos, and Blanca Rosa Alvarado) gave a different version ; their testimony in this respect did not impress me as reliable and is not credited insofar as it contradicts that of the witnesses for the Respondents "The cards were combined applications for membership in the ILGWU, designations of the ILGWU as bargaining representative, and checkoff authorizations. 12 This finding of fact is based upon Galinanez' admission, corroborated by the testimony of Sara Somarriba, a witness for the ILGWU. 13 There is some confusion on the record as to the purpose of this committee. I find that it was not formed to negotiate directly with the Company regarding terms or con- ditions of employment and therefore will not refer to it as a negotiating committee. COAMO KNITTING MILLS, INC. 587 ment where in building No. 1 to assemble for this purpose. Accordingly the employees divided into departments and each group chose a representative by secret ballot, or by voice vote, or by show of hands, or perhaps even by lot. A group of six operators was not afforded an opportunity to choose a representative and Blanca Rosa Alvarado, one of the six, reported this fact to Galinanez. Galinanez replied that this was a matter for the ILGWU.14 When the names of the selected individuals had been turned in, Schoen and Sanchez met with these employee-representatives in the lunch shelter. During this meeting of the shop committee, Wolf approached and asked Schoen if the ILGWU representatives "would like to get together with him." Schoen responded in the negative, explaining that "we were still in the midst of formulating our demands." Wolf then left, the shop committee meeting eventually ended, and Schoen and his colleagues departed. On the next day, July 18, two representatives of the Federacion appeared outside the Company's plant, addressed the employees through a loudspeaker, and distributed literature on behalf of the Federacion. Wolf obtained one of these leaflets. He then telephoned Schoen, told him what had happened, and read the leaflet's contents to him. In the same telephone conversation, Wolf and Schoen arranged to meet in San Juan the following day. Accordingly on July 19 and again on July 2015 Wolf and Schoen, accompanied by Sanchez, met and negotiated the terms of a collective-bargaining contract. On the latter date the understanding was reduced to writing and signed. It provides, inter alia, for recognition of the ILGWU as the exclusive bargaining agent of all the Company's employees, with exclusions not here material; "a Union shop and the monthly checkoff of Union dues in accord with articles II and III of the Puerto Rican ILGWU Standard Independent Agreement"; five paid holidays; certain "vaca- tion pay"; a wage increase of 5 cents per hour for all workers "without prejudicing the Union's position that additional increases are called for"; it lists certain "un- resolved" questions; states that certain other specified matters were not discussed "be- cause presumably covered by the Bobbie Brooks agreement"; and provides that it shall be effective from July 15, 1963, to December 31, 1964. Upon the execution of the agreement, Wolf notified Galinanez to raise the wages of all employees 5 cents per hour, retroactive to July 15.16 Galinanez accordingly raised hourly rates 5 cents and refigured piece rates so as to provide an equivalent increase. The new piece rates were posted on the plant bulletin board the following Monday, July 22. The notices included the fact that the new rates had been made effective as of July 15. In the meanwhile, on July 21, the agreement had been read to and approved by the members of the shop committee at a meeting called by the ILGWU outside the plant. This appears to have been the shop committee's last function. On August 18, after the filing of the charges in Case No. 24-CA-1806, the agreement was read to and ratified by the Company's employees at a meeting called by the ILGWU outside the plant. On September 18, after the filing of the charges in Case No. 24-CB-476, the Federa- cion filed with the Board a petition in Case No. 24-RC-2271 seeking to represent the Company's employees. The petition is still pending before the Board. So far as the record shows, this was the first time the Federacion demanded to be recognized as the bargaining agent of the Company's employees. B. The Company's illegal aid and assistance to the ILGWU 1. Contentions of the parties The consolidated complaint alleges, and the General Counsel contends, that the Company rendered unlawful assistance and support to the ILGWU as follows: The Company and the ILGWU entered into an agreement on July 15 whereby the ILGWU 1A The finding regarding Galinanez' answer is based upon his testimony. Alvarado- testified that Galinanez replied that it was not necessary to elect a delegate for such a small number of employees. I credit Galinanez' version as more accurate The General Counsel does not contend that the ILGWU's failure to afford these six em- ployees an opportunity to select a representative constituted conduct violative of the Act. 15A few additional ILGWU cards appear to have been signed by employees of ' the Company on July 19 16 Schoen testified that Wolf wanted to know the ILGWU's plans for ratification, and that Schoen replied that the ILGWU's representatives would meet on July 21 with the shop committee and that if Wolf did not hear to the contrary on July 21 he could assume that the shop committee had ratified the agreement. It should be noted, however, that Wolf did not await the outcome of this meeting but instead gave his instructions to Galinanez on July 20. 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was recognized as the exclusive bargaining agent of the Company's employees, and whereby the employees "were to receive a wage increase of*5 cents per hour, 2 weeks vacation and 5 holidays with pay." Furthermore, Wolf told the employees on July 16 that "upon becoming members of the ILGWU they would receive higher wages and other economic benefits and better job security." In addition, Wolf permitted the ILGWU's representatives to address the Company's employees on July 17, "during working hours"; and the ILGWU representatives, in the presence of the Company's representatives, told the employees that the Company had agreed to recognize the ILGWU as their bargaining agent and "would sign a contract granting them a 5 cents per hour wage increase, 2 weeks vacation and 5 holidays with pay." Moreover, the ILGWU's representatives, in the presence of the Company's representatives, distributed ILGWU cards and asked the employees to sign them. Additionally, the Company permitted the ILGWU representatives to hold an election "during working hours in the plant" for a committee "to act with representatives of [the] ILGWU in preparing the final draft of a contract to be executed." On July 19 and 20 representatives of the Company and the ILGWU agreed upon and executed a contract which "incorporated the previous arrangement" and incorporated by reference "union shop and monthly checkoff clauses contained in the ILGWU's Puerto Rican Standard Independent Agree- ment," all terms being made retroactive to July 15. And although not specifically spelled out in the consolidated complaint in so many words, the General Counsel pointed out at the hearing that in his view it was immaterial that the ILGWU obtained 144 signed cards on July, 17 because the agreement between the Company and the ILGWU had already been reached 2 days earlier and also because the signatures resulted from the Company's illegal aid and assistance to the ILGWU and could not be viewed as the voluntary act of the employees. In short, the General Counsel main- tains that at the time the agreement was reached the ILGWU did not represent an uncoerced majority of the employees. The Respondents deny that there was any agreement between them covering the working conditions of the Company's employees prior to July 20. They argue that the speeches of Wolf fell within the bounds of permissible free speech, that the con- duct of.the Company did not constitute illegal aid or assistance to the ILGWU, that the signatures of the employees on the ILGWU cards were freely obtained, and that when the contract was signed 3 days later the ILGWU clearly represented an un- coerced majority of the employees. In addition, the Respondents set forth certain affirmative defenses discussed below. 2. Conclusions The General Counsel's contention that the Company and the ILGWU entered into an agreement containing substantive terms and conditions of employment as early as July 15 is admittedly based upon circumstantial evidence. Specifically the General Counsel relies upon the fact that Wolf arrived in Puerto Rico on July 15 and had a conversation with Schoen shortly thereafter; that Schoen and his assistants were present at the Company's plant on July 17 at Wolf's invitation and arrived about 5 hours prior to Schoen's speech to the employees at 4 p m., during which 5 hours Schoen and Wolf conferred from time to time; and finally that the written agreement signed on July 20 was made retroactive to July 15 on its face and the benefits granted thereby were in fact made retroactive to July 15.17 In contradiction of the General Counsel's contention, Schoen flatly denied that he had "negotiated" with the Company at any time before July 19. He testified, however, that in his talks with Wolf on July 17 at the plant, prior to his speech to the employees, "there was a certain amount of fencing that went on." I am convinced on this record, and find, that some preliminary skirmishing occurred between Schoen and Wolf on July 17 before any employees had signed ILGWU cards, but whether such activities can correctly be termed "negotia- tions" is highly questionable.18 So far as the retroactivity of the July 20 agreement is concerned, Schoen explained that it was merely done as a matter of convenience, to conform to the payweek, which began on July 15. This seems to me to be a reasonable 17 The General Counsel also relies upon testimony that Schoen , during his speech to the Company's employees on July 17, announced that the ILGWU had already obtained certain benefits for the workers "without the necessity of boxing " with the Company. As set forth above , I do not consider such testimony convincing and do not credit it. 's As will be developed below, Bobbie Brooks recognized the ILGWU as the exclusive bargaining representative of the employees of Colebrook, the Company 's parent corpora- tion, sometime in January . 1 make no finding as to whether or not the Company rec- ognized the ILGWU as the exclusive bargaining representative of its employees , prior to 4 p.m. on July 17. COAMO KNITTING MILLS, INC. 589 explanation. I conclude that the General Counsel has failed to establish that the Company and the ILGWU reached any agreement concerning terms and conditions of employment of the Company's employees prior to July 19. Let us turn now to Wolf's speeches to the Company's employees on July 16. It is true that the speeches were made to a "captive" audience, that is, on company property on working time to groups whose attendance was involuntary, and that Wolf stated that the Company was anxious for them to join the ILGWU. However, a study of the speeches' contents, and the answers given by Wolf to employees' questions, reveals neither promises of benefits to induce them to join the ILGWU nor threats of reprisal if they failed to do so. Accordingly, I conclude that Wolf's conduct on July 16 did not exceed the limits of permissible free speech and fell within the protection of Section 8(c) of the Act. The consolidated complaint further alleges that the ILGWU's representatives were allowed to address the Company's employees on July 17 "during working hours in the plant." Insofar as the employees on the second shift that day are concerned, this allegation has been adequately proven and I find it to be a fact.19 And it should be added that one company official announced the meeting and another introduced the ILGWU's representative. I am not, however, called upon to decide whether these facts standing alone constitute illegal aid and assistance to the ILGWU.20 For the Company's conduct went much further-a company representative (Galinanez) remained during the passing out, signing, and returning of the ILGWU cards; the ILGWU was permitted to hold elections of delegates in the plant and during the work- time of some employees; 21 and finally the ILGWU's shop committee was allowed to meet on company premises.22 The presence of Galinanez while ILGWU cards were distributed, signed, and returned could reasonably have led the employees to conclude that they were being watched and their signing or not signing noted by management. In the context of Wolf's recently expressed desire that the workers join the ILGWU, plus the fact that the card signing took place on company property during the working time of some employees, I am convinced and find that Galinanez' presence necessarily had a coercive effect. Looking at the entire picture, it is difficult to imagine how the efforts of management and ILGWU leadership might have been better coordinated to their mutually desired end. The net result was that the employees' freedom of choice was constrained by conditions and circumstances created by the Company. Under all the circumstances here present it is concluded that, by the totality of its conduct on July 17, viewed against the backdrop of Wolf's speeches on the previous day, the Company rendered illegal aid and assistance to the ILGWU in violation of Section 8(a) (2) of the Act, and also interfered with the employees' freedom of choice of bargaining representative, in contravention of Section 8(a)(1) of the Act.23 ' , As noted above, the General Counsel also attacks as illegal the Company's conduct on July 20 in signing a contract recognizing the ILGWU as the sole bargaining representative of the Company's employees. He contends that, as the ILGWU did not then represent an uncoerced majority of the employees, the Company by such recogni- tion rendered additional illegal aid and assistance to the ILGWU, thereby further violating Section 8(a)(1) and (2) of the Act. I agree. The Company's unlawful help to the ILGWU in the matter of obtaining employee signatures on the cards was, in my opinion, of sufficient gravity to taint the signatures on all the cards, leaving the ILGWU with a coerced majority.24 As the Company was aware that its own activities had coerced the employees into joining, its signature on a contract recognizing the ILGWU as the exclusive bargaining agent of its employees constituted additional activity proscribed by Section 8(a)( I) and (2) of the Act.25 19 The ILGWiWIU's brief refers to 4 p in as "the end of the work day." While this is accurate as to first-shift employees, it is erroneous as to second-shift employees 21 Contrast The Bassick Company, 127 NLRB 1552, cited by the General Counsel, and N.L.R.B. v. Park Edge Sheridan Meats, Inc, 323 F. 2d 956, 959 (CA. 2), with Jolog Sportswear Inc., 128 NLRB 886, pet for review dismissed sub nom. Mary Kimbrell at at v. N.L.R B., 290 F. 2d 799 (C.A 4), cited by the Respondents 21 Indeed, one or two knitters from the second shift, whose working hours had begun at 4 p.m., participated in the knitters' election, which took place between 4:30 and 4:45 p.m. 22 Regarding the legality of an employer permitting union meetings to be held on com- pany premises, see Salmirs Oil Company, 139 NLRB 25, enfd. January 6, 1964 (C.A. 2). 23 Compare Revere Copper and Brass, Inc. v. N L.R B., 324 F. 2d 132 (C A. 7). 24 Bernhardt Bros. Tugboat Service v. N.L.R.B., 328 F. 2d 757 (CA. 7) ; and Salmirs Oil Company, supra. 25 Even had the Company acted in the good-faith but mistaken belief that the ILGWU's majority was uncoerced, its conduct in signing the contract of July 20 nevertheless con- stituted a violation of Section 8(a) (1) and (2) of the Act. International Ladies' Gar- ment Workers' Union, AFL-CIO v. N.L.R.B. (Bernhard-Altmann Texas Corp.), 366 U.S. 731. 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The ILGWU's unlawful interference with the employees' rights The consolidated complaint alleges and the General Counsel contends that by its conduct described above, the ILGWU restrained and coerced the Company 's employ- ees. I find that the ILGWU signed a contract on July 20 in which it was recognized as the exclusive bargaining representative of the Company's employees, and that at the time it did not represent an uncoerced majority of the employees . By such action the ILGWU deprived the employees of their right to select a bargaining agent of their own choice and thereby violated Section 8 (b) (1) (A) of the Act 26 D. The union-security clause As mentioned above, the contract executed on July 20 incorporated "a Union shop in accordance with articles II and III of the Puerto Rican ILGWU Standard Independent Agreement." The agreement referred to, in article III , provides: It shall be a condition of employment that all workers covered by this agree- ment who are members of the Union in good standing on the execution or effective date of this agreement , whichever is the later (herein called "the cover- age date" ), shall remain members in good standing and those who are not mem- bers on the coverage date shall , on and after the thirtieth day following the coverage date (but not before completion of the worker's trial period), become and remain members in good standing of the Union. It shall also be a condition of employment that all workers covered by this agreement and hired on or after the coverage date shall, on and after the thirtieth day following the beginning of such employment (but not before completion of the worker 's trial period), become and remain members in good standing of the Union. The above-quoted provision clearly constitutes a 30-day union-security clause. So far as the record reveals, it has not been revoked, altered, or amended. The first proviso to Section 8 (a) (3) of the Act prohibits the execution of such a clause where the contracting union has been "established , maintained, or assisted by any action defined in Section 8 (a) of this Act as an unfair labor practice." As the Company had illegally assisted the ILGWU on July 17 , it follows that by including a union- security clause in the contract of July 20 and by maintaining such a clause in force and effect thereafter, the Company further violated Section 8(a)(1) and (2) of the Act. Moreover, this constituted discrimination in regard to working conditions , viola- tive of Section 8(a)(3) of the Act .27 And the ILGWU, by signing such a contract and maintaining it in effect, caused the Company to discriminate against its employees in violation of Section 8(a)(3) of the Act , and thereby itself violated Section 8(b) (1) (A) and (2) of the Act 28 E. The Respondents' affirmative defenses 1. The defense of accretion to an existing unit a. Facts Bobbie Brooks, Inc., herein called Bobbie Brooks, is engaged in the manufacture, sale, and distribution of women's sportswear, with headquarters in Cleveland, Ohio. Its products are manufactured in many plants, including subsidiaries , licensees, and firms which produce for Bobbie Brooks on a contract basis. Bobbie Brooks main- tains control over its subsidiaries not only through ownership of capital stock, but also through the identity of officers , and interlocking directorships. All styling, adver- tising, and sales of Bobbie Brooks products are centrally controlled . The same is true of labor relations policies and financing for new buildings or equipment. Comp- trollers for subsidiary corporations are supplied from Bobbie Brooks' headquarters, and are frequently interchanged ; regardless of which subsidiary nominally employs them, they are responsible only to Bobbie Brooks' treasurer in Cleveland. Bobbie Brooks' policy is to sell its products in coordinated groups. For example, a dress, straight skirt, pleated skirt, full gathered skirt, slacks, sweater, etc. are all coordinated colorwise as well as stylewise to fit into one group. The various com- 23International Ladies' Garment Workers' Union , AFL-CIO v. N L.R B., supra; and Salmirs Oil Company, supra. n N.L.R.B. v. Bernhardt Bros Tugboat Service, Inc., supra. 28 GEM International, Inc., et at., 137 NLRB 1343, 1347, enforcement denied 321 F. 2d 626 (C.A. 8) ; and Dancker ct Sellew, Inc., 140 NLRB 824, enfd. sub nom. N.L R B. v. Local 210, International Brotherhood of Teamsters, etc., 330 F. 2d 46 (C.A. 2). COAMO KNITTING MILLS, INC. 591 ponents, manufactured in different factories, are all shipped to one central distribu- tion center in Cleveland. All goods sold are delivered to customers from this single distribution- center. The retailer is required to buy the entire group; Bobbie Brooks will not sell any component parts separately, and will not make any shipment from the distribution center until all component parts have been received there and can be shipped out together. It is therefore obvious that all specifications (weight, color, size, style), as well as the quantity of any component to be produced, must be and is centrally dictated. And purchasing is centrally controlled to a large extent 29 The skills involved in the various operations seem to be essentially similar in the factories involved-the operation of single needle or double needle sewing machines, the skills needed for pressing and trimming, etc. Supervisors and mechanics are interchanged between plants from time to time, the latter on a more-or-less temporary basis; there is only a negligible amount of permanent transfers of nonsupervisory personnel. With regard to the specific Company here involved and its plant at Coamo, the facts are as follows: Bobbie Brooks is the sole stockholder of Colebrook Mills, Inc., herein called Colebrook, with headquarters in Hialeah, Florida. The president of Bobbie Brooks is chairman of the board of Colebrook; the treasurer of Bobbie Brooks is treasurer of Colebrook; and the secretary of Bobbie Brooks is secretary of Cole- brook. Colebrook's president and vice president are not officers of Bobbie Brooks. Colebrook in turn controls several wholly owned subsidiaries of which the Company is one. The individuals who are officers of Colebrook occupy the identical offices with regard to the Company. The Company produces ladies' full-fashioned sweaters. All instructions regarding what products will be manufactured by the Company origi- nate with the management of Bobbie Brooks and are relayed to the Company through the officials of Colebrook. Approximately half of the Company's products is labeled and packaged in Bobbie Brooks bags; the other half bears a Colebrook label. Several supervisors have been permanently transferred from Colebrook to the Company and a mechanic was temporarily so transferred. There appear to have been no instances of permanent or temporary transfer of rank-and-file operators (as distinguished from mechanics) either from Colebrook to the Company or from the Company to Colebrook. Let us now examine bargaining history. Long before the events related above, Bobbie Brooks and the ILGWU had been bargaining and had entered into separate contracts for each of the Bobbie Brooks facilities. In 1959 the parties started to negotiate a single overall agreement to cover all Bobbie Brooks plants in the United States whether owned by Bobbie Brooks or any of its subsidiaries or affiliates. In the same year District 50, United Mine Workers of America, herein called the Mine Workers, filed a petition in Case No. 8-RC-3841 seeking to represent the employees of Bellaire Garment Company, Bellaire, Ohio, herein called Bellaire, a subsidiary of Bobbie Brooks. The ILGWU, as the recognized bargaining agent for these employ- ees, intervened. The ILGWU and Bellaire opposed a unit limited to employees of Bellaire alone , contending that only a multiplant unit of employees of Bobbie Brooks and its subsidiaries was appropriate. On August 9, 1960, the Board issued its Deci- sion and Direction of Election (unpublished) in which it stated: The appropriateness of the single-plant unit at the Employer' s Bellaire, Ohio plant, as sought by Petitioner, was contested by Employer and intervenor on the basis of facts establishing centralized managerial, operating, and administrative control of all the 10 plants and 2 distribution centers owned by Employer's par- ent company, Bobbie Brooks, Inc., through its Cleveland offices, and an inter- change of employees between certain of the various plants. While facts tend to support the broader, multi-plant unit, they are not so compelling as to require a finding that only such unit can be appropriate or that the unit here requested could not function separately for the purposes of collective bargaining. Thus, the record shows that the Bellaire plant is geographically separated by about 130 miles from the Cleveland office and by 830 miles from at least one of the other plants; that, unlike the situation in certain other plants located in the same geo- graphic area, the Bellaire plant employees do not inter-change with those at any other plant; that each plant functions autonomously under a plant manager, who is also a vice president of the subsidiary corporate owner of the plant he man- ?' William H. Rosenfeld, labor relations attorney for Bobbie Brooks, testified that all purchases of raw materials are "handled centrally," but explained that a subsidiary "will buy yarn, but only according to the specifications they will receive" from Bobbie Brooks. Galinanez testified that he purchases locally in Puerto Rico thread for button sewing and button holing and also certain cardboard inserts used in packing. 775-692-65-vol. 150-39 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ages, in the conduct of its day-to-day operations, and that such manager has substantial, effective authority to hire, discharge, layoff and recall all nonsuper- visory employees, subject only to the Cleveland office's limitation of the maxi- mum number of employees who may be employed at each plant and to the possible discharge recommendations of roving quality inspectors. Further, while there is evidence that recent negotiations have been looking to the establishment of a single master contract for all the plants, none has as yet been concluded, and the record establishes the existence of an effective bargaining history for each of the Bobbie Brooks plants on the basis of separate agreements to which the various subsidiary corporations, on the one hand, and the intervening Inter- national alone or the International and an affiliated local, on the other hand, are signatory. In the light of the foregoing circumstances, we find, that a unit limited to the Bellaire, Ohio, plant is appropriate for the purposes of collective bargaining and is in accord with applicable precedents. In the ensuing Board-directed election, the Mine Workers defeated the intervening ILGWU. Consequently on September 1, 1960, the Mine Workers was certified by the Board as the exclusive bargaining representative of the employees of the Bellaire plant. Ultimately a so-called "first national agreement" was entered into between Bobbie Brooks and the ILGWU, effective from January 1, 1961, to December 31, 1962, and thereafter automatically renewable from year to year in the absence of 60 days' notice of termination. The contract listed certain Bobbie Brooks plants in the United States, not including Bellaire, and provided for recognition of the ILGWU as the exclusive bargaining representative of a single unit composed of employees of the listed plants 30 It contained, among others, the following provision: ... the Employer may expand the operations of the shops covered by this agreement or open additional shops only if such expanded operations or addi- tional shops shall be operated under all the terms and conditions of this agreement. The parties also executed separate shop supplements governing working conditions in particular plants, coextensive in term with the national agreement. There was also an oral understanding between the parties "that while [any] new plant would imme- diately ... become subject to the provisions of the national agreement ... the eco- nomics of the national agreement would not be applied to ... newly acquired ... plants for a period of time ... mutually agreed upon as being necessary to permit the company ... to educate the management of that particular acquisition in the Bobbie Brooks philosophy." There was also a mutually understood policy that no shop supplement would be signed with respect to a newly acquired plant until a majority of employees in the new facility had executed designations in favor of the ILGWU. Prior to April 1962 what is now the Company had been a plant (independent of Bobbie Brooks but apparently a subsidiary of Colebrook) known as Trio Knitting Company. In April or May 1962 Bobbie Brooks acquired Colebrook, and with Colebrook its wholly owned subsidiary, the Company. Thereafter, on January 23, 1963, the parties executed the so-called "second national agreement" effective from January 1, 1963, until December 31, 1964. As later set forth in a more detailed con- tract, it listed all Bobbie Brooks plants in the United States, including Colebrook31 It recognized the ILGWU as the exclusive bargaining representative of a single unit composed of "all non-supervisory production ... employees, employed in the garment shops now owned by the Employer or hereafter accreted to the bargaining unit" with certain inclusions and exclusions not here pertinent. It also contained a 30-day union-security provision and a clause authorizing the checkoff of union dues, initia- tion fees, and assessments. The parties also executed separate shop supplements for each plant involved, terminating on the same date as the national agreement. The shop supplement for Colebrook applies only to Colebrook's plant in Hialeah, Florida, and became effective June 17, 1963. Consistent with the oral understanding of the parties described above, neither national agreement had been applied to the Com- 80 The ILGWU's brief states that both national agreements "cover Bobbie Brooks and all of its affiliates." This is inaccurate. The first national agreement shows on its face that Bellaire was not included-nor could it have been, because the Board had recently certified the Mine Workers as bargaining agent for the Bellaire employees. 91 On July 9, 1962, the ILGWU had filed a petition seeking to represent the employees of Bellaire. In the election which resulted the ILGWU had been victorious and had accord- ingly been certified by the Board on September 13, 1962, as the exclusive bargaining agent of Bellaire's employees hence Bellaire was listed in the second national agreement. COAMO KNITTING MILLS, INC. 593 pany's plant in Coamo, Puerto Rico, prior to June 1963. In the last half of June 1963, shortly after the execution of the shop supplement covering the Hialeah plant of Colebrook, the parties determined that "the time was just about ripe ... to extend the national agreement to Coamo Knitting Mills." It was as a result of this under- standing that Schoen telephoned Wolf the first time, as described above, leading to the events already set forth. b. Contentions of the parties The Respondents contend that the Company, when acquired by Bobbie Brooks, became an accretion to the existing national unit of all Bobbie Brooks plants, and therefore was already covered by the national agreement prior to June 1963. Hence, argue the Respondents, the employees of the Company, as a matter of law, "are not entitled to a separate, fragmented choice of a bargaining agent." The General Counsel, conversely, denies that the Company constitutes an accretion to the preexisting unit, or that the Company's employees fall automatically under the national agreement. Instead, he maintains that they are legally entitled to an untrammeled choice in the matter, and should only be bound by the national agreement if they freely decide to be represented by the ILGWU. It has been found above that the Company violated Section 8(a) (1) and (2) of the Act by its conduct on July 17. It has further been found that, by entering into a contract on July 20, at a time when the ILGWU did not represent an uncoerced majority of the employees, the Company violated Section 8(a)(1), (2), and (3) of the Act and the ILGWU violated Section 8(b)(1) (A) and (2) of the Act. The affirmative defense now asserted-accretion to the national unit-would if sustained uphold the legality of the July 20 contract.32 But it would not, if sustained, constitute a defense to the Company's illegal conduct of July 17. Even should it be held that the Company's employees constitute an accretion to an existing unit, so that the Company was bound to recognize the ILGWU as their bargaining representative, this fact would not license the Company to coerce them into signing ILGWU cards nor excuse other illegal aid and assistance condemned by Section 8(a)(1) and (2) of the Act 33 c. Conclusions At least three possibilities exist here: the Company's employees may be regarded as an automatic accretion to the preexisting unit as the Respondents contend; they may be included in that unit only after a self-determination election; or they may be excluded therefrom and required to comprise a separate unit of their own. For pur- poses of this proceeding it is necessary only to answer the first question: Does the Company constitute an accretion to the preexisting unit composed of the Bobbie Brooks plants in the United States, by operation of law, without regard to the wishes of the employees therein? 34 The Board has provided general guideposts governing such determinations. Whether or not a particular operation constitutes an accretion to a preexisting unit turns upon all the factors present in each case. In determining whether a newly acquired facility is to be considered as an accretion, the Board has considered the presence or absence of a variety of factors, such as integration of operations, centralized administrative control, geographic proximity, similarity of working conditions, skills and functions, common control over labor relations, collective-bargaining history, frequency of transfers of employees, and other factors 35 Applying these principles to the cases at hand, it is true that purchasing, production, sales, advertising, finance,, and labor relations in all Bobbie Brooks plants are highly centralized and there is a large measure of control at the top, as well as functional integration. It is also true that there now exists a national contract embracing Cole- brook, the Company's parent corporation, and all other Bobbie Brooks plants in the continental United States36 On the other hand, there has never been appreciable 25 Borg-Warner Corporation, 113 NLRB 152, petition for review denied sub nom. Inter- national Union, United Automobile etc. Workers v. N.L R.B., 231 F. 2d 237 (C.A 7), cert. denied 352 U.S. 908; and N.L.R.B. v. Appleton Electric Company, at at., 296 F. 2d 202 (C.A. 7). 3Compare N.L.R.B v. Kiekhaefer Corporation, 292 F. 2d 130, 135 (C.A. 7). 34 Parkview Drugs, Inc, 138 NLRB 194, 198. 'The Great Atlantic and Pacific Tea Company (Family Savings Center), 140 NLRB 1011, 1021. w "The bargaining history of one group of employees, although persuasive, does not invariably control the question of appropriateness for every other group of employees." N.L.R.B. v. Local 210, International Brotherhood of Teamsters (Dancker & Sellew, Inc.), 330 F. 2d 46, 55 LRRM 2902, 2903 (C.A. 2). 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD interchange of nonsupervisory employees between the Company and any of the Bobbie Brooks plants on the mainland, the Company has retained its separate corporate identity,37 Puerto Rico has separate minimum wage laws not applicable to plants in the continental United States, and the Coamo plant is geographically quite distant, being separated by an ocean from other Bobbie Brooks facilities. For these reasons, and in view of the Board's 1960 decision finding appropriate a unit limited to employees of Bobbie Brooks' Bellaire plant, I conclude that the Company's employees do not constitute an automatic accretion to the preexisting unit of all Bobbie Brooks employees on the mainland. The accretion defense therefore lacks merit. 2. Other affirmative defenses As set forth above, the Respondents in their separate answers plead as an affirmative defense that they "engaged in lawful activities pursuant to the proviso of Section 8(e) of the ... Act ... pertaining to the apparel and clothing industry." The proviso in question reads: That for the purposes of this subsection (e) and section 8 (b) (4) (B) the terms .,any employer", "any person engaged in commerce or an industry affecting commerce", and "any person" when used in relation to the terms "any other producer, processor, or manufacturer", "any other employer", or "any other person" shall not include persons in the relation of a jobber, manufacturer, con- tractor, or subcontractor working on the goods or premises of the jobber or manu- facturer or performing parts of an integrated process of production in the apparel and clothing industry. The General Counsel concedes that the Company is engaged in the "integrated process of production in the apparel and clothing industry" as that phrase is used in the above-quoted proviso. However, as I read this proviso, it is designed to furnish a defense only when the charges involve alleged violations of Section 8(e) or Section 8(b) (4) (B) of the Act. The instant cases do not involve either of the sections men- tioned. Nor do I believe that the Congress, by inserting in the Act the proviso in question, intended to present to employers and unions in the apparel and clothing industry a carte blanche to violate other sections of the Act with impunity. I therefore find that the proviso relied upon is inapplicable here and of no avail to the Respondents. There remains a defense not pleaded but raised in the ILGWU's brief. It is that "if the Coamo plant is not covered by [the] ILGWU agreement, the Bobbie Brooks National Agreement forbids Bobbie Brooks from giving any work to the Coamo plant." We will assume, arguendo, that this correctly states the legal import of the national agreement. What this argument boils down to is that, should the Company's employees fail to select the ILGWU to represent them, Bobbie Brooks would have little use for the Company's products. Aside from the possibility that, if such a situation should develop, other outlets might be found for the Company's products, this is a risk which Bobbie Brooks undertook by acquiring the Company's plant at a time when the agreement described above was in effect. And I do not consider it incumbent upon the Board to stretch the provisions of the Act in order to extricate the parties from the consequences of their own conduct. All in all, I deem this to be an insufficient reason to justify depriving the Company's employees of their right freely to choose their own bargaining agent. As such right is statutorily protected, it must prevail over any potential inconvenience or economic hardship to the contracting parties. Upon the basis of the foregoing findings of fact, and upon the entire record in these cases, I make the following: CONCLUSIONS OF LAW 1. Coamo Knitting Mills Inc., is, and at all material times has been, an employer within the meaning of Section 2(2) of the Act. P7 0n the importance of this factor, see Illinois Malleable Iron Company, et at., 120 NLRB 451, 453-454. I am aware that the court of appeals refused to enforce this decision . Nevertheless, as a Trial Examiner, I am bound to follow Board precedent until changed by the Board or the United States Supreme Court. Novak Logging Com- pany, 119 NLRB 1573; and Scherrer and Davisson Logging Company, 119 NLRB 1587. COAMO KNITTING MILLS, INC. 595 2. International Ladies' Garment Workers' Union, AFL-CIO, and Federacion Puertorriqueiia De Sindicatos Democraticos are, and at all material times have been, labor organizations within the meaning of Section 2(5) of the Act. 3. By entering into and maintaining in effect a collective-bargaining contract with the ILGWU in which the ILGWU was recognized as the exclusive bargaining agent for its employees at a time when the ILGWU did not represent an uncoerced majority of such employees, and by other conduct, thereby rendering illegal aid and assistance to the ILGWU, the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (2) of the Act. 4. By entering into and maintaining in effect the union-security provisions of its contract with the ILGWU at a time when the ILGWU was the recipient of illegal aid and assistance, thus discriminating with regard to tenure of employment and thereby encouraging membership in the ILGWU and discouraging membership in the Federacion, the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 5. By the foregoing conduct, thereby interfering with, restraining, and coercing its employees in the exercise of rights guaranteed them in Section 7 of the Act, the Company has engaged in and is engaging in unfair labor practices within the-meaning of Section 8 (a) (1) of the Act. 6. By entering into and maintaining in effect the union-security provisions of its contract with the Company at a time when it was the recipient of illegal aid and assistance, thereby causing the Company to discriminate against its employees in viola- tion of Section 8(a)(3) of the Act, the ILGWU has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b) (2) of the Act. 7. By such conduct, and by acting as the exclusive bargaining representative of the Company's employees at a time when it was not the collective-bargaining representa- tive of an uncoerced majority of said employees, thereby restraining and coercing said employees in the exercise of rights guaranteed them in Section 7 of the Act, the ILGWU has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b) (1) (A) of the Act. 8. The unfair labor practices described above tend to lead to labor disputes burden- ing and obstructing commerce and the free flow of commerce, and constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] APPENDIX A I think you and me, the workers in Coamo, and the Company have gotten along well for many years. There is mutual respect and friendship. Had we remained a private company, this relationship would have remained in its present form, unchanged. However, as you know, a little over one year ago, we merged with a public corporation, Bobbie Brooks, the best and largest company in the apparel field. You may recall that we had a meeting just about one year ago, at which I explained the merger and described the changes we were making in our organization. There are a number of benefits to us all from the merger-steadier employment and greater availability of capital for new equipment. There are also certain obligations. One of these is the requirement that we sign a contract with the International Ladies' Garment Workers' Union if you want the Union. Our parent company, Bobbie Brooks, has had contractual dealings with this Union for twenty-three years. During this time, it has grown from a few thousand dollars to a company with sales of seventy- five million-so the Union could not have been too much of a handicap. Seriously, the ILGWU has shown itself to be a responsible and intelligent Union, and we.antici- pate no problems if we deal with them. During the next few days, representatives of the Union will be in Coamo to solicit your membership. Although you are under no compulsion, we urge you to join. The Company will negotiate a contract with the Union, which we believe will be mutually beneficial. I believe the mill will operate with least friction if there is a union contract and all of the workers are members of the Union. This is a new twist-for the Company to urge you to join the Union, but I hope this explanation will persuade you. Please excuse my poor Spanish. If you have any questions, now is the time to ask them, and with Angel's assistance, I'll try to answer them. Thank you.