Dixon Ford Shoe Co., Inc.

DIXON FORD SHOE CO:, INC. 861 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. All our employees are free to become and remain or to refrain from becoming or remaining members of the above-named Union or any other union. MOSE FRANCK HEATING AND AIR CONDITIONING, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE-We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended , after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Room 2023, Federal Office Building, 550 Main Street , Cincinnati, Ohio, Telephone No. 381-2200, if they have any question concerning this notice or compliance with its provisions. Dixon Ford Shoe Co., Inc. and Boot & Shoe Workers' Union, AFL-CIO. Case No. 24-CA-188. January 11, 1965 DECISION AND ORDER On October 21, 1964, Trial Examiner Max Rosenberg issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Exam- iner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. 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 brief, and the entire record in this proceeding, and hereby adopts the findings, conclu- sions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the Board hereby adopts, as its Order, the Order recom- mended by the Trial Examiner and orders that Respondent, Dixon Ford Shoe Co., Inc., its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. 150 NLRB No. 86. 862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding, with all parties represented , was heard before Trial Examiner Max Rosenberg in Ponce, Puerto Rico, between May 4 and 7 , 1964, on complaint of the General Counsel of the National Labor Relations Board and answer of Dixon Ford Shoe Co., Inc., herein called the Respondent.' The issue raised by the pleadings is whether the Respondent violated Section 8(a)(5) of the Act by refusing to bargain with the Boot & Shoe Workers' Union , AFL-CIO, herein called the Union , until it first established its majority representation claim in a Board-conducted election. At the conclusion of the hearing, the parties orally argued their respective causes. Cogent and concise briefs have been received from the General Counsel and the Respondent, which have been duly considered. Upon the entire record, and from my observation of the witnesses , including,their demeanor while on the stand , I hereby make the following: FINDINGS OF FACT - - 1. THE RESPONDENT'S BUSINESS - The Respondent , a corporation organized under and existing by virtue of the laws of the Commonwealth of Puerto Rico, maintains an office and place of business in Salinas, Puerto Rico, where it is engaged in the manufacture of shoes. During the material representative period, the Respondent imported goods and materials from points outside the Commonwealth of Puerto Rico which were shipped directly to its place of business and which were valued in excess of $50,000. During the same period, Respondent manufactured , sold, and shipped products valued in excess of $50,000 to points outside the Commonwealth of Puerto Rico. The complaint alleges, the amended answer admits , and I find that Respondent is engaged in commerce within the meaning of Section 2 ( 6) and ( 7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2 ( 5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The contentions The General Counsel contends that the Respondent violated Section 8(a)(5) of the Act when , after agreeing to be bound by the results of an impartial , third-party count of the Union's authorization cards, and after being apprised at the conclusion of the count of the Union 's majority representative status, it refused to recognize and bargain with the Union unless the latter again established its majority status in a Board-conducted election . Respondent asserts that its insistence upon a Board elec- tion as a predicate to recognition was lawfully motivated because its refusal to accept employees, prior to the conclusion of the count , that the Union had procured their authorization cards through fraud, coercion , threats, and promises of benefit. Alterna- tively, the Respondent argues that, even if the cards were not obtained by these means, the General Counsel has failed to establish that Respondent did not entertain a good- faith doubt of the Union's majority by insisting on an election because of the absence of evidence that it engaged in any concurrent unfair labor practices or that it evinced an attitude of opposition to the Union - B. The evidence The events which precipitated the instant proceeding commenced in the latter part of November 1963. On November 21, Radames Ten, an employee at Respondent's plant in Salinas , Puerto Rico, contacted Eugenio Valentine , an organizer for the Union with offices in San Juan, and informed the latter that Respondent 's employees had expressed an interest in becoming unionized Valentine supplied Ten with author- ization cards and Ten was instructed to explain to the employees the goals and benefits which might be achieved through collective representation by the Union . By Novem- ber 24 Ten had obtained 34 signed authorization cards and appraised Valentine of this fact . On November 25, Valentine and Michael Tesoro, the Union 's regional director, visited Ten and procured the cards from him. On November 26, Tesoro and 'The amended compl a int, which issued on April 15, 1964 , is based on a charge and an amended charge filed on February 5 and March 4 , 1904 , respectively DIXON FORD SHOE CO., INC. 863 Valentine called on Roger LaSalle, Respondent's general manager. According to Tesoro's uncontradicted testimony, he informed LaSalle that the Union represented a majority of Respondent's employees and requested recognition . When LaSalle asked Tesoro to produce the signed authorization cards for inspection, Tesoro declined to do so but suggested instead that an independent, third party be selected to verify the Union's majority status. LaSalle agreed to this proposal and recommended that Judge Juan Lugo, a district judge in Salinas, be designated to perform this chore. Tesoro and LaSalle, in company with Valentine and Benton Clark, Respondent's plant super- intendent, then lunched together. During the meal, the parties explored the Union's contract demand, and LaSalle remarked that "I think we can get along with you, I think that will be all right, we will discuss this later." LaSalle agreed that "if I [Tesoro] had the majority cards and the judge would say so, we would sit down and work out an agreement that we had already talked about at lunch." To facilitate Judge Lugo's task of verifying the employees' signature on the authorization cards, LaSalle stated that he would turn over to the judge certain tax-withholding statements bearing his employees' signature for comparison of their handwriting. The parties then returned to the plant where LaSalle gave these documents to Tesoro while Valentine telephoned Judge Lugo to arrange for an appointment that day. Possessed of the authorization cards and the tax-withholding statements, Tesoro, Valentine, and Ten proceeded to the judge's office where they explained the purpose of their mission. Judge Lugo placed a call to LaSalle to confirm the arrangements made for the card check and, upon being advised by LaSalle that the latter concurred in those arrange- ments, the judge instructed Tesoro and Valentine to escort the employees who had signed authorization cards to his office so that their signatures could be verified. Between November 26 and December 19, 1963, 31 employees appeared at the judge's office and verified their signatures and, on the latter date, Judge Lugo certified that these 31 employees had designated the Union as their collective-bargaining representative.2 On December 19, Valentine was informed by Ten that Judge Lugo had concluded the card check. Valentine and Ten called upon the judge on that date and obtained a copy of the majority certification which Valentine mailed to Tesoro and which was received by the latter on the mainland on or about December 21.3 Valentine testified that sometime between December 19 and 31 Clark telephoned him to request that the tax-withholding forms which the Respondent had proffered to the judge to accom- plish the card check be returned. Tesoro testified that, following his initial conversation with LaSalle on November 26, he had no further communication with LaSalle until the results of the card check were made known to him and he again visited Puerto Rico. At the outset of his testimony, Tesoro fixed this latter date as December 21, and denied that he spoke to LaSalle during the period from November 26 and December 13 "because there was nothing to talk to him about-I had to wait until the certification." On demand of Respondent's counsel, Tesoro obtained records from the hotel at which he normally stayed while in San Juan to pinpoint the date of this communication . These records, as well as the testimony of Valentine, established that Tesoro was mistaken in his belief that he was in Puerto Rico on December 21, and show that the visit actually commenced on January 6, 1964. Upon arriving in San Juan on January 6, Tesoro telephoned LaSalle at the plant in Salinas but was unable to contact him. Tesoro again placed a call to LaSalle at the plant on January 7, but without success. Tesoro testified that he managed telephonically to reach LaSalle at the latter's home in Ponce on the evening of January 7. According to Tesoro, LaSalle expressed his regret that he was not at the plant on January 6 or 7 to receive Tesoro's calls, and explained that he was absent from the plant because his wife had given birth to a child on January 6. In the ensuing conversation, Tesoro "talked about the contract, what day to set to sit down and get together on the contract .. . At this point, and for the first time since their last conversation on November 26, LaSalle informed Tesoro that he had received reports that Ten had offered to pay the employees if they visited Judge Lugo to verify their signatures, and advised Tesoro that, because of these reports, any further action with respect to contract negotiations would have to await LaSalle's further advice from Respondent's home office in Boston , Massachusetts Tesoro denied that he had any knowledge that Ten had offered to compensate employees for appearing before the judge, but agreed to defer negotiations until LaSalle had con- .2 Respondent concedes that these 31 employees consiituted a majority of the employees in an appropriate unit at the Salinas plant during the tines material herein 'Tesoro, as a member of the Union's general executive boaul, maintains his principal office in Boston, Massachusetts, and makes periodic trips to Puerto Rico for organizational purposes in his capacity as regional director. 775-692-65-vol. 150-56 864 DECISIONS OF NATIONAL • LABOR RELATIONS BOARD eluded his consultations with his superiors. Events apparently abided until, on Jan- uary 31, 1964, Respondent filed a petition with the Board in Case No. 24-RM-99 requesting that a representation election be directed .4 Roger LaSalle testified that he met Tesoro for the first time on November 26 when the latter appeared at the plant and demanded recognition as majority representative of Respondent's employees. LaSalle 'expressed surprise that the Union had attained majority status among the employees, but assured Tesoro that the Respondent would recognize the Union if Tesoro produced proof of its majority representative status. While Tesoro was unwilling to exhibit the signed authorization cards for LaSalle's inspection, Tesoro suggested that a third party be selected to conduct a card check. LaSalle concurred in this proposal and telephoned Judge Lugo to request that the latter conduct the card check, a task which the judge agreed to perform "as a friendly gesture." LaSalle further testified that, during the week of December 7 to 13, he learned from Plant Superintendent Benton Clark and Supervisor Mercedes Rosario that certain employees had informed Clark and Rosario that they refused to appear before the judge to verify their authorization card signatures because they had been duped into signing them by union assurances that the Respondent had reached agree- ment with the Union, and that he had learned from Supervisor Mercedes Rosario that employee Hector Santiago had been offered money to sign a card. During the period from December 7 to 13, after receiving the foregoing reports, LaSalle averred that he received a telephone call from Tesoro about a subject "pertaining to the activities within Dixon Ford Shoe Company." During the conversation, LaSalle advised Tesoro that, in light of the reports which the former had received respecting the manner in which the employees had been induced to sign the authorization cards, LaSalle doubted the Union's majority status and would insist upon a Board election as a condition of extending recognition to the Union. According to LaSalle's further testimony, he left Puerto Rico on December 13 for a visit to the mainland and returned on December 21. Desirous of having the employees' tax-withholding statements returned to him, he telephoned Judge Lugo on December 27 and, for the first time, learned that the card check had been completed and that, on the basis of the verified signatures, the Union represented a majority of the plant employees. The following day, LaSalle and Clark visited the judge's office where they received a copy of the judge's certification.5 LaSalle testified that, in a conversation with the judge on that date, LaSalle informed him of the reports which he had received concerning the manner in which the cards had been obtained by the Union, and that the judge also remarked that he had heard similar reports from the employees when they appeared in his office to verify their signatures. LaSalle con- ceded that, at no time during the period from December 7 to 13, when he received these reports, to December 19, when the judge concluded the card check, did he inform the judge of these reports or of his determination to have the Board conduct an election. He also admitted that neither he nor Clark investigated these reports to ascertain their accuracy. LaSalle also testified that he never received any demand for recognition from the Union after its initial request on November 26, and denied he had any conversations with Tesoro or any other union official concerning union recognition on bargaining after he spoke to Tesoro during the December 7 to 13 period. In this connection, LaSalle testified that he was absent from the Salinas plant on January 6 because it was closed on that date due to the Three Kings Day holiday, and because he had taken his wife to a local hospital where she had given birth to a child He further testified that he was not at the plant on January 7 in view of the fact that he had been summoned to transport his wife and the new-born baby to their home, and that he was not at home on the evening of January 7 because he took his wife and baby to Clark's home for dinner that evening, an event which lasted until approximately 10.30 p.m. In sum and substance, LaSalle denied that he had any conversations with Tesoro on January 6 or 7, 1964. Benton Clark testified that he was present in the plant on November 26 when Tasoro and Valentine met with LaSalle, represented that they had obtained signed authorization cards from the employees, and requested that LaSalle discuss the situa- tion with them. LaSalle and the union representatives talked about a collective- bargaining contract and then agreed upon a card check by Judge Lugo to establish the 4 This petition was dismissed by the Board's Regional Director because of the pendency of this proceeding. 8 On cross-examination, LaSalle acknowledged that he gave a sworn statement to an agent of the Board in which he stated that he telephoned the judge on December 20, visited the judge's office on December 21, and learned on these dates that the Union's majority had been established. He testified that he was "confused" when he gave these dates in his statement and insisted that these events occurred on December 27 and 28. In view of the findings hereinafter made, I deem it unnecessary to resolve this conflict. DIXON FORD SHOE CO., INC. 865 authenticity of the Union's majority status. Because Clark needed the tax-withholding statements which Respondent had given to the judge , Clark telephoned the judge on a date which fell in the latter part of December to solicit their return and learned for the first time that the card check had been concluded. He accompanied LaSalle to the judge's office on the following day. Clark further testified that, prior to his receipt of information from the judge concerning the results of the card check, Clark received reports from supervisors that they had been told by certain employees that the employ- ees had signed the authorization cards because they had been told that the Respondent had reached an agreement with the Union and that they would lose their jobs if they did not join the Union. Clark stated that he did not investigate these reports, and did not recall the names of the complaining employees, but simply referred the reports to LaSalle. Finally, Clark testified that LaSalle's wife had had a baby early on the morning of January 6 and that LaSalle, his wife, and the baby dined at Clark's home on the evening of January 7. With respect to the circumstances surrounding the card check, Judge Lugo testified that he received a visit from Tesoro, Valentine, and Ten on November 26 and that they requested that he conduct the card check and certify the validity of the cards which they proffered to him. The judge at first protested that his duties of office gave him little time for outside activities , but he finally consented to undertake the task. The judge then telephoned LaSalle, informed the latter that the union representatives had requested that he conduct a card check, and received LaSalle's assurance that a card check by the judge would be agreeable to LaSalle. Thereafter, and until Decem- ber 19, employees were escorted to the judge's office by Ten to verify their signatures on the authorization cards. After the card check was concluded, the judge drafted a certification of his verification of the signatures .6 At some date in late December 1963, LaSalle and Clark visited the judge's office and obtained a copy of the certification. According to the judge's testimony, at no time during this visit did LaSalle mention that he had received any reports concerning the manner in which the Union had induced the employees to sign the authorization cards Judge Lugo further testified that at no time during his conduct of the card check did any employee advise him that the employee had signed a union card because of union threats, misrepresentations, fraud, or promises of benefit. However, some employees did inform the judge that they were afraid to visit the judge's office for fear that they would be observed by LaSalle or Clark, who frequently took their meals at a bar opposite his office. To support its defense that Respondent, prior to the receipt of the results of the judge's card check, insisted on a Board election because it had learned that certain employees had been induced to sign the union authorization cards through threats, misrepresentations, fraud, and promises of benefit, the Respondent elicited the testi- mony of several witnesses . The first of these was Idalia Vazquez. She testified that she was approached by Radames Ten during the latter part of November 1963, and was requested by him to assume a position of leadership in the Union and to solicit the support of the female employees in the plant. It was agreed that, when the Union achieved majority representative status, Vazquez would be designated as the plant representative and would be compensated for these duties. Ten gave Vazquez some authorization cards, generally accompanied her when she solicited employees, and instructed her as to what to say to them. According to Vazquez, she pointed out to the employees the various benefits which the Union could obtain from the Respondent. Because the employees were in fear of what Respondent would do if they signed an authorization card, Vazquez informed them that LaSalle and Clark were aware of the organizational campaign and were "In accord with the signing of the cards." To some reluctant employees, Vazquez explained that "if we did not sign the cards now it would be worse on us because the union was already a fact and that when the union came in it would be better for us to have signed already and be members, and that if we waited until later it would be worse for us." However, Vazquez admitted that she had reference, by this statement, to the fact that the employees would have a certain period in which to join the Union after it achieved majority representative status and that employees who did not join after that period expired would be deprived of their jobs. Vazquez also acknowledged that she gave a sworn statement to a Board agent in which she averred that both she and Ten told the employees "that it was better to sign [a card at that time] inasmuch as the matter of the union was a fact and that if you collected a majority of signatures Mr LaSalle would recognize the union and the employees would not have to go to an election." She further' acknowledged telling the Board agent that all the signatures which she collected were voluntarily given. 6 There is neither evidence nor contention in this proceeding that the conduct of the card check by Judge Lugo tailed to measure up to the normal standards of regularity for such a check or that the check was inaccurate. r 866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On January 24, 1964, while still engaged in promoting the Union's cause, Vazquez received a warning notice from Respondent for defective work. She gave the warning to Ten with the understanding that he would inquire at the local labor department office as to the purport of the warning . On February 11, 1964, Vazquez learned that Ten had given the card to the Union in San Juan . This infuriated her because she desired to return it to the Respondent to clear her record without intervention of the Union. Vazquez thereupon visited a local attorney to manifest legally her with- drawal from the Union . She testified that, on February 12, she called at LaSalle's office to report this circumstance and, there, for the first time, she made known to the Respondent the manner in which she had obtained the authorization cards from employees in late November 1963. Mercedes Rosario, a supervisor of the female employees in the sewing department, testified that she learned of the Union's organizational drive in the first week in December 1963, when some of the sewing operators so informed her. According to Rosario, employee Ligia Lago reported to Rosario that the Union had told Lago that if she did not sign a card she would be discharged when the Union became their bargaining representative . Rosario, at some undisclosed date, conveyed this intelli- gence to LaSalle. LaSalle's response was to the effect that "he did not want one thing or another, that it was up to the girls-whatever they decided." Rosario further testified that employee Margarita Rivera told the former that the Union "offered her certain things if she would sign the card." These "certain things" turned out to be a luncheon. In addition, employees Aurora Suarez and Gloria Colon told Rosario that they had signed their cards because the Union had led them to believe that LaSalle concurred in such action. When questioned as to why these girls revealed this informa- tion to her, Rosario professed that "I give my girls enough confidence in me so that they come to me about any matter or any situation which arises ." However, when Rosario was asked whether the girls had supplied the name of the union representative who made the foregomg statements to them, Rosario responded in the negative and' explained that the girls "of course, did not wish to reveal the names of the persons to me." So far as appears from Rosario 's testimony, the only report which she relayed to LaSalle was the one supplied to her by Ligia Lago. Margarita Rivera testified that ' she was approached by Ten and asked to sign an authorization card "if I was in accord to sign the union card" and after he explained the benefits which the Union sought to obtain from Respondent . According to Rivera, Ten also told her that LaSalle "was in accordance with the union ." Rivera further testified that, sometime after she had signed the card, Ten offered her and Aurora Suarez $10 if they would appear at the judge's office to verify their signatures on the authorization cards. Rivera also testified that the first time she informed her supervisor, Mercedes Rosario, of the statements which Ten made to her was at the end of December 1963. Despite Rosario's testimony that she was told by Rivera that the Union had offered the latter a luncheon as an inducement to sign a card , Rivera nowhere adverted to such an offer in her testimony. Aurora Suarez' testimonial recitation is that she was solicited by Idalia Vazquez around the end of November 1963 to sign a union card, which Suarez did. During the course of her solicitation , Vazquez informed Suarez of the various benefits which the Union would attain and, additionally, told Suarez that LaSalle "was in agreement with this." According to Suarez, she informed her supervisor , Mercedes Rosario, of the contents of her conversation with Vazquez because someone had told her that signing a union card "would bring about problems," and Rosario advised her to con- sult a lawyer. Suarez acknowledged that she had given a sworn statement to a Board agent in which she related that she consulted the attorney on February 8, 1964, which was about a week after her conversation with Rosario concerning the statements of Vazquez which impelled Suarez to sign the authorization card. Suarez finally placed her conversation with Rosario in the month of January 1964. Luis Alberto Melendez testified that he had signed a union card in late November 1963 at the behest of Ten with the inducement "that LaSalle was in accord with that and I signed it for that purpose." So far as his testimony stands, this witness never reported to any representative of the Respondent that his signature had been obtained by Ten through the foregoing inducement until a few days before the hearing in this proceeding when he imparted this intelligence to Respondent's counsel. Julio Enrique Vazquez related in his testimony that he signed a union card on or about December 1, 1963, after Ten had explained the various benefits which would flow from union representation . This witness stated that he signed the card because of rumors he had heard "from groups of people that got together at different places" to the effect that LaSalle was in agreement with the Union , and not because of any such statement by Ten. There is nothing in the testimony of this witness to indicate that he at any time spoke to any representative of the Respondent regarding the cir- cumstances under which he signed a union card. DIXON FORD SHOE CO., INC. 867 Gloria Cruz averred that she signed a union card at the end of November 1963 at the request of Ten and Idalia Vazquez, after being informed that "it was for our progress, that they were going to give us raises, and I did not want to sign but they told me a lot of things-they told me about benefits and that the factory was in agreement and I signed it." On direct examination, she stated that she and employee Delvis Santiago were offered $5, each to sign a union card. On cross-examination, Cruz related that the $5 offer was to insure her visit to Judge Lugo to verify her sig- nature and was designed to recompense her for any loss of work which she might suffer as a result of the visit. Here again, there is nothing in Cruz' testimony to establish that she at any time informed any representative of the Respondent of the conversations which occurred between her and the union representatives. Ligia Lago was called as a witness to corroborate Mercedes Rosario's testimony that the latter was informed by Lago that an unidentified union representative stated to Lago that she would be discharged if she did not sign a union card. Lago testified that she was never approached by any union agent to sign a card and that she did not sign one. According to her testimony, Idalia Vazquez "was always coming around us and she said that the union was going to get us out." Around the end of November or the beginning of December 1963, Lago• asked her supervisor, Rosario, whether "that was true." Sonia Gonzalez testified that she signed a union card for Idalia Vazquez on the latter's assurance "That Mr. LaSalle was in agreement." There is nothing in Gon- zalez' testimony that she reported this circumstance to any agent of the Respondent. Ada Rodriguez testified that she signed a union card at the end of November 1963 at the solicitation of Ten and Idalia Vazquez. After explaining the benefits which the Union would seek to obtain from Respondent, Rodriguez testified that Vazquez "told me to sign and I asked if the bosses were in agreement and she told me that yes they were in agreement that the union would come in." A short time later, Rodriguez heard from "rumors and conversations around the factory that LaSalle was not in agreement" and this prompted her to seek out her supervisor, Mercedes Rosario, "to see what I could do about the situation because I had signed and I found out there was no agreement and the union had lied to me." Rodriguez placed the date of this search as occurring in the early part of December 1963. On cross-examination, Rodri- guez acknowledged that she gave a sworn statement to a Board agent in which she recited that she went to Rosario when she learned she had been misled by the Union into signing a card; that Rosario counseled her to see an attorney if she wished to withdraw from the Union; and, that this conversation with Rosario occurred on February 7, 1964, and Rodriguez visited the attorney on the following day. On redirect, Rodriguez stated that she really had two conversations with Rosario on the subject, that the first one occurred in early December 1963 but that Rosario did not reply to Rodriguez' request for advice, and that she again sought her supervisor's advice on February 7, 1964. Delvis Santiago testified that she signed a card in the presence of Ten and Vazquez and that she was told by them "that LaSalle was in accord, that they were going to pay us more and nothing else." There is nothing in Santiago's testimony to establish that she related the foregoing statement to any representative of the Respondent. Finally, Rosa Reyes testified that she signed a union card on December 1, 1963, at the solicitation of Ten and Vazquez after they informed her "that Mr. LaSalle was in agreement," although these union representatives also mentioned the benefits which might be forthcoming if the employees selected ,the Union. Reyes stated that she went to her supervisor, Mercedes Rosario, and "told her they talked to me about the union, that they wanted me to sign the card and my problem was that they wanted me to go to court fora verification and I did not want to go." On redirect examina- tion, in response to a leading question, Reyes further testified that Ten informed her "that if I did not sign the card that we were going to be taken out when the union won. He told me that if I did not help by signing the card, that I was going to be taken out of my job." To rebut the foregoing testimonial defense interposed by Respondent, the General Counsel called Radames Ten, Hector Juan Santiago, Victor Manual Martinez, and Guy Cognet as witnesses. In his testimony, Ten stated that he obtained 34 signed authorization cards by November 24, 1963, and that he was assisted in this task by Idalia Vazquez. Ten testified that, in obtaining the signatures, he explained to the employees what the Union would attempt to obtain from the Respondent by way of added benefits if the employees designated the Union to represent them. Ten cate- gorically denied that he ever informed any employee whom he solicited that LaSalle or any other representative of the Respondent was in accord with the signing of a union card or that he ever threatened any employee with discharge if he failed to sign such a card. Ten related that sometime after November 26 he asked Gloria Cruz and Delvis Santiago to visit Judge Lugo and verify their signatures on the author- 868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ization cards. When Cruz and Santiago protested that they could not accomplish this without losing a half day's work, Ten told them that they would be reimbursed for any loss of pay they might suffer. Hector Juan Santiago testified that, when he signed a card at the request of Ten, Ten explained the Union's contract demands and at no time did Ten state that LaSalle was in agreement with the Union or was in accord with the signing of cards by his employees. Santiago also testified that he was instrumental in obtaining a signed authorization card from Margarita Rivera. In soliciting her signature, Santiago exhibited the card to her and explained the benefits which the Union offered. He denied that he at any time mentioned to Rivera that LaSalle "was in accord or in agreement with the union." Guy Cognet testified that he signed a card on the solicitation of Ten after the latter explained what benefits might be forthcoming. Cognet denied that Ten mentioned to Cognet that LaSalle or the Respondent had reached an agreement with the Union or was in favor of the employees signing union cards. Victor Manuel Martinez testified that he accompanied Ten while the latter solicited employees on November 24, 1963, and did not hear Ten tell the employees that Respondent was in accord with the Union. Based upon the uncontroverted testimony in this proceeding, I find that, on Novem- ber 21, 1963, Radames Ten contacted Eugenio Valentine and procured blank author- ization cards from the latter and that on November 24 Ten obtained signed cards from 34 of Respondent's employees which he turned over to Valentine and Michael Tesoro on the following day. I find that on November 26 Valentine and Tesoro visited LaSalle at the Salinas plant in the course of which Tesoro asserted that the Union represented a majority of Respondent's employees and requested recognition and a collective-bargaining agreement. When Tesoro declined to produce the authorization cards to substantiate his representative claim, a card check by a third party was agreed upon and Judge Lugo was suggested by LaSalle as the individual who should conduct the count. I find, on the basis of Tesoro's undenied testimony, that LaSalle agreed that if Tesoro "had the majority cards and the judge would say so, we would sit down and work out an agreement that we had already talked about" during a luncheon meeting on November 26. On the afternoon of November 26, Tesoro, Valentine, and Ten delivered the 34 signed cards to Judge Lugo, together with certain employee tax-withholding statements bearing the signatures of the employees which LaSalle had provided to facilitate the count, and the judge instructed the union representatives to produce the employees at his office to verify the signatures on their authorization cards. It is undisputed that 31 employees visited the judge and verified their signatures during the period from November 26 and December 19; that on the latter date the judge issued a certification to this effect; that a copy of the certification was given by the judge to Valentine on December 19 which the latter mailed to Tesero and was received by him on the mainland on December 21; and that the 31 employees whose signed cards had been verified constituted a majority of the employees at the Respond- ent's Salinas plant in an appropriate unit. I find that, either on December 20 or 27, LaSalle telephoned Judge Lugo to request the return of the withholding tax forms and the latter informed LaSalle that the card check had been completed and advised LaSalle of the results of the count, and that, on either December 21 or 28, LaSalle and Clark visited the judge's office and received a copy of the certification. I credit the testimony of Tesoro and find that, following his initial conversation with LaSalle on November 26, 1963, during which he made a demand for recognition and bargaining, Tesoro was in no further communication with LaSalle until the results of the card check were made known to Tesoro and he returned from the mainland to San Juan, Puerto Rico. I find that this second conversation between these prin- cipals occurred on the evening of January 7, 1964, when Tesoro placed a call from San Juan to LaSalle's home in Ponce and learned that Mrs. LaSalle had had a baby the preceding day. During the conversation, I find that Tesoro spoke to LaSalle "about the contract, what day to set to sit down and get together on the contract"; that for the first time LaSalle mentioned to Tesoro that the former had received reports that Radames Ten had offered to pay employees to appear before the judge to verify their signatures; and that at no time during this discussion did LaSalle mention that his employees had been induced to sign union cards by threats, misrepresentations, fraud, or promises of benefit. I further find that Tesoro agreed to defer negotiations on a collective agreement until LaSalle consulted with his superiors, and that there- after LaSalle refused to bargain with Tesoro unless and until the Union established its majority status in a Board election Radames Ten impressed me as an honest witness whose testimony I credit and find that he solicited signed authorized cards from the male employees and also generally accompanied Idalia Vazquez while she solicited the female employees. I credit his denials that he threatened employees to induce them to sign cards, or that he informed DIXON FORD SHOE CO., INC. 869 employees that the Respondent was in agreement with the Union or that LaSalle looked with favor upon the employees signing union cards, and I also accept his testi- mony that he did not overhear Vazquez make any such remarks to employees in the course of her solicitations. I also credit the corroborative testimony of Hector Juan Santiago,? Guy Cognet, and Victor Manuel Martinez in this regard. I do not credit Idalia Vazquez' testimony that she induced employees to sign author- ization cards by stating to them that LaSalle and Clark were aware of the Union's organizational campaign and that they were "In accord with the signing of the cards," or that she told some employees that it would "be worse for them" if they did not sign union cards during the organizational drive. When confronted with her sworn state- ment given to a Board agent, Vazquez acknowledged that she told the agent that all of the signatures which she collected were voluntarily given. Vazquez expressed and displayed an intense hostility toward the Union occasioned by Ten's handling of her warning notice, which caused her to defect from the union ranks. Neither her demeanor while testifying, nor the quality of her testimony, persuade me that she is worthy of belief. Nor do I credit LaSalle's testimony that he learned during the period between December 7 and 13 that the Union had procured the authorization cards by improper means, and that, based on this information, he informed Tesoro during this period that he entertained a good-faith doubt of the Union's majority and would insist that the Union establish its majority in a Board election.. LaSalle's testimonial averments in this regard lack plausibility when viewed against the backdrop of the purported, cor- roborative testimony of Respondent's other witnesses. Thus, Idalia Vazquez testified that she induced employees to sign union cards by indicating to them that LaSalle and Clark were in favor of such action, and by cautioning the employees it would "be worse for them" if they did not sign up during the organization drive, testimony which I have discredited. However, even were I to credit that testimony, Vazquez conceded in her testimony that she did not apprise LaSalle of the methods she employed to obtain the cards until February 12, 1964, approximately 2 months after LaSalle professed that he received reports of the use of such methods. Moreover, Mercedes Rosario, a super- visor who, according to LaSalle, relayed the reports to him, testified that she learned of the Union's campaign in the first week of December 1963, and that employees had come to her during this period and conveyed the information that the Union had used improper inducements to obtain their signatures. However, her testimony lacks a true ring. For example, she testified that Margarita Rivera informed Rosario that the Union had "offered her certain things if she would sign the card" and that these "cer- tain things" consisted of a luncheon. Rivera testified that Ten had induced her to sign a card by telling her LaSalle "was in accordance with the union" and that Ten had offered her $10 to appear at the judge's office and verify her signature. Not only did Rivera make no mention of an offer of a luncheon as an inducement for her to sign, but she admitted that she did not relay any of this information to Rosario until the end of December 1963, a few weeks after LaSalle purportedly received the employee reports. Rosario further testified that, during the early part of 1963, she received a report from Aurora Suarez that the latter had been enticed into signing an authoriza- tion card by union assurances that it was agreeable with LaSalle to do so. According to Suarez, she informed Rosario that she had signed a card for Idalia Vazquez under the inducement that LaSalle favored this action, but then learned from someone that signing a union card "would bring about problems," and Rosario advised her to con- sult an attorney. Suarez admitted that this conversation, at the earliest, took place in January 1964, approximately a month after LaSalle's asserted receipt of this intelli- gence. In addition, there is nothing in the testimony of Respondent's witnesses Luis Alberto Melendez, Julio Enrique Vazquez, Gloria Cruz, Sonia Gonzalez, or Delvis Santiago to indicate that they ever reported to Rosario or any other representative of the Respondent the union statements or methods by which they were induced to sign their authorization cards. Moreover, as Rosario's testimony stands, the only report which she conveyed to LaSalle concerned the conversation between Rosario and Ligia Lago. Lago informed Rosario that the Union had told Lago that she would be dis- charged if she did not sign a card. Lago testified that she was never approached by any union representative to sign a card and that she did not sign one. In her testimony, Lago stated that she had overheard Idalia Vazquez comment that "the union was going to get us out" and Lago asked Rosario whether this was true. According to Rosario, when she reported her conversation to LaSalle, the latter replied that "he did not want 7 There were two employees named Hector Santiago at the plant during the times mate- rial. So far as appears, this witness is not the Hector Santiago who reported to Mercedes Rosario that he had been offered money by the Union to sign a card, as indicated in LaSalle's testimony. While LaSalle testified that Rosario had conveyed the report of this incident to him, Rosario made no mention in her testimony that she did so. 870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD one thing or another, that it was up to the girls-whatever they decided," a remarkable response in light of LaSalle's assertion that such reports led him to renege on his agreement to recognize the Union if it obtained a majority in the card check, and to insist on a Board election. Moreover, I find it inconceivable that either LaSalle or Clark would fail to investigate these reports in view of the seriousness which LaSalle; attached to them in his dealings with the Union. There are other reasons why I find that LaSalle's testimony in this area does not deserve belief. He testified that, when he visited Judge Lugo on December 28, 1963, LaSalle informed the judge that his employees had been duped into signing union cards by the Union's assertion that LaSalle favored such action, and that the judge acknowl- edged that he had also learned of such misrepresentations when the employees appeared before him to verify their signatures. Judge Lugo testified that, at no time during the course of his card check, did any employee who appeared before him indi- cate that they had signed their cards as a result of threats, misrepresentations, fraud, or promises of benefit, and that at no time during his conversation with LaSalle on December 28, 1963, did LaSalle mention this matter to him. I accept the testimony of Judge Lugo, a public-spirited and respected jurist in Salinas, with no apparent interest in this proceeding, and attach no credible significance to LaSalle's testimony. More- over, I find it implausible that LaSalle, if indeed he had learned between December 7 and 13 that the Union had obtained its authorization cards by improper means and for this reason insisted on a Board election, would have failed to notify the judge so that the judge would not devote his time in the performance of a futile act, in view of LaSalle's testimony that he requested the judge to perform the card check task and the judge agreed to do so as a "friendly gesture" to LaSalle.8 Accordingly, I conclude and find that the Union did not obtain its' authorization cards from Respondent's employees by threats, misrepresentations, coercion, or promises of benefit, that LaSalle did not receive reports to this effect at any of the times material herein, and that LaSalle therefore did not refuse to accept the results of the judge's card check because of the receipt of any such reports. In sum, I find that the Respondent agreed, on November 26, 1964, to an independent card check of the Union's asserted majority representative status and agreed to be bound by the results thereof, that Respondent learned on December 20 or 27 from Judge Lugo the results of the check which concededly showed that the Union did represent a majority of the employees, and that on January 7, 1964, the Union again demanded recognition and bargaining which the Respondent denied to it unless and until the Union once more demonstrated its majority in a Board election. C. Analysis and conclusions The Respondent interposed two defenses to the General Counsel's allegation that its conduct offended the provisions of Section 8(a) (5) of the Act First, Respondent contends that it lawfully rejected the results of the Union's majority card showing, and properly insisted on a Board election as a predicate to recognition and bargaining with the Union, because it entertained a good-faith doubt of the Union's majority, a doubt which was engendered by receipt of reports that the employees had been induced to sign union authorization cards by threats, misrepresentations, coercion, and promises of benefits. I have heretofore found that the Union did not obtain its cards by these means, that the Respondent did not receive reports from its employees that they were improperly induced into signing the cards, and that Respondent therefore could not have refused to bargain with the Union for this reason. Accordingly, I find no merit in this contention and reject it. However, Respondent alternately pleads that it had a statutory right to insist on a Board election even though the Union's majority was properly attained,'in view of the fact that its bona fides in doing so was not impugned by any proof submitted by the General Counsel that it had engaged in any concurrent unfair labor practices or had evinced any attitude of opposition to the Union.9 8 Clark's testimony that he received reports that the Union had employed improper means to obtain cards, and that he conveyed this intelligence to LaSalle, falls in the same incredible mold It is notable that Rosario, who allegedly gave these reports to Clark, made no mention in her testimony that she reported to anyone but LaSalle. 0In his complaint, the General Counsel alleges that Respondent unilaterally granted its employees a rest period during working hours while the card check was being per- formed, and evidence was introduced to support this allegation However, the complaint does not allege that this conduct by Respondent violated the Act in any respect, and the General Counsel disclaimed any such intention by introducing that evidence While I find, on the evidence, that a rest period was instituted during the card count, f attach no probative significance to this fact in assessing the legality of Respondent 's conduct. DIXON FORD SHOE CO., INC. 871 As the Respondent's counsel so aptly puts it in his brief, "It is well established by Board cases, that when an employer is faced with a demand for recognition by a union, it may, in good faith, insist on a Board election and withhold recognition, but that such right is not unqualified or absolute. Therefore, if a union make a demand for, recognition and validly establishes its majority status, the employer may not law- fully insist on the Board-conducted election before recognizing the Union, unless such denial of recognition is based upon a bona fide doubt as to the Union's majority status." To state this proposition is simply to restate the applicable principles of law set forth in Snow & Sons,10 which are dispositive of the issues presented in the instant proceed- ing. In the Snow case, the union had obtained a majority card showing among the employer's employees and demanded recognition. The employer initially refused to accord recognition on the ground that it doubted the union's majority status. Subse- quently, it agreed to a card check which indicated that a majority of the employees had selected the union as their bargaining representative. The employer nevertheless con- tinued in its refusal to recognize the union and insisted on a Board election, despite the fact that the employer never questioned the accuracy or regularity of the card count. In Snow,11 as in the instant case, there was no evidence that the employer had indulged in any unfair labor practices during the conduct of the-card count or otherwise exhibited any animosity toward the union. In finding that the employer violated Sec- tion 8(a) (5) of the Act, the Board reiterated that the right of an employer to insist on a Board election is not absolute.12 It concluded that, "Where, as here, the Employer entertains no reasonable doubt either with respect to the appropriateness of the pro- posed unit or the Union's representative status, and seeks a Board-directed election without valid grounds therefor, he has failed to fulfill the bargaining requirements under the Act." 13 On my view of the record made in this proceeding, I conclude that the Respondent did not possess a good-faith or reasonable doubt of the Union's majority status when, after receipt of the results of the card check which concededly established the Union's majority, it refused to accede to the Union's demand, made by Tesoro on January 7, 1964, that the Respondent recognize the Union and enter into negotiations with it, and advanced no valid grounds for its insistence on a Board election. Accordingly, I conclude that, on and after January 7, 1964, Respondent failed and refused to recog- nize and bargain with the Union by its insistence on a Board election as a precondition thereto, and that its conduct in this regard fell within the proscriptive ambit of Section 8(a) (5) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section TIT, above, occurring in connec- tion with the operations of Respondent described in section I, above, have a close, inti- mate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(5) and (1) of the Act, I will recommend that it cease and desist there- from and take certain affirmative action designed to effectuate the policies of the Act. As I have found that Respondent unlawfully refused to recognize- and bargain with the Union, I shall order Respondent, upon request, to bargain collectively with the Union and, if an understanding is reached, to embody such understanding in a signed agreement. Upon the basis of the foregoing findings of fact and conclusions, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees employed at the Respondent's plant in Salinas, Puerto Rico, excluding professional employees, office clerical employees, 10 Fred Snow, et at, d/b/a Snow cC Son R, 134 NLRB 709, e111d 30S F 2d 687 (C.1 9) 1See aleo Fleming R Sons of Colorado, Inc, A 1)ivi',on of Flennnq cC Sonc, Inc, 147 NLRB 1271. "See United Butchers Abattoir, Inc, 123 NLRB 946, 957, Aline Workers of 41neriea v. Arkansas Oak Floorrnq Co , 351 U S. 62. 13 Frcd Snow, et al, d/ b/a Snow & Sons, 134 NLRB 709, 710-711. 872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD guards, and all supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times since January 7, 1964, Boot & Shoe Workers' Union , AFL-CIO, has been, and now is, the exclusive representative of all the employees in the above- appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing to recognize and bargain with the Union on and after January 7, 1964, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) and ( 1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law and the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I recommend that Respondent , Dixon Ford Shoe Co., Inc., Salinas , Puerto Rico, its officers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Boot & Shoe Workers' Union , AFL-CIO, as the exclusive representative of its employees in the following unit which is appro- priate for the purposes of collective bargaining. All production and maintenance employees employed at the Respondent 's plant in Salinas, Puerto Rico, excluding professional employees , office clerical employees, guards, and all supervisors as defined in the Act. (b) In any like or related 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 above -named Union , or any other labor organization, to bargain collectively through representatives of their own choosing , and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any and all such activities , except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which I find is necessary to effectuate the policies of the Act. (a) Upon request, bargain collectively with the above-named Union, as the exclu- sive representative of the employees in the unit described above, with respect to rates of pay, wages, hours of employment , and other terms and conditions of employment, and, if an agreement is reached , embody it in a signed contract. (b) Post at its plant in Salinas, Puerto Rico, copies of the attached notice marked "Appendix." 14 Copies of said notice, to be furnished by the Regional Director for Region 24, shall , after being duly signed by the Respondent 's representative , be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 24, in writing, within 20 days from the date of receipt of this Decision, what steps Respondent has taken to comply therewith.15 14 In the event that this Recommended Order be adopted by the Board , the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board 's Order be enforced by a decree of a United States Court of Appeals , the words "a Decree of the United States Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision and Order." In the event that this Recommended Order be adopted by the Board , this provision shall be modified to read, "Notify said Regional Director , in writing, within 10 days from the date of this Order , what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board , and in order to effectuate the policies of the National Labor Relations Act, as amended , we hereby notify our employees that: WE WILL, upon request, bargain collectively in good faith with Boot & Shoe Workers' Union, AFL-CIO, as the exclusive representative of all employees in HOWARD QUARRIES, INC. 873 the bargaining unit described below, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an agreement is reached, embody it in a signed contract. The bargaining unit is: All production and maintenance employees at our plant in Salinas, Puerto Rico, excluding professional employees, office clerical employees, guards, and all supervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Boot & Shoe Workers' Union, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. All our employees are free to become, remain, or refrain from becoming or remain- ing members of the above-named labor organization, or any other labor organization. DIXON FORD SHOE CO., INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, P.O. Box 11007, Fernandez Juncos Station, Santurce, Puerto Rico, Telephone No. 724-7171, if they have any question concerning this notice or compliance with its provisions. Howard Quarries, Inc. and Engineers Local 101, Laborers Local 663, and Teamsters Local 534. Case No. 17-CA-2448. Janu- ary 11, 1965 DECISION AND ORDER On October 12, 1964, Trial Examiner Eugene F. Frey issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices within the meaning of the National Labor Relations Act and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices, as to which he recommended that the complaint be dismissed . Thereafter, Respond- ent and the General Counsel filed exceptions to the Trial Examiner's Decision and supporting briefs. Pursuant to Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chair- man McCulloch and Members Fanning and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. 150 NLRB No. 83.