Cadillac Mfg., Corp.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cadillac Manufacturing Corporation; Cadillac Shirt Corporation; and Western Garments, Inc. and Confederacion Laborista De Puerto Rico. Case 24-CA-3792 September 29, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On April 28, 1977, Administrative Law Judge Josephine H. Klein issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions ' of the Administrative Law Judge and to adopt her recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. i Based on the limited record before us, we affirm the Administrative I.aw Judge's conclusion that the Respondents - when they withdrew recognition of Confederacion Laborista de Puerto Rico on October 21, 1976 -had objective evidence constituting grounds for asserting the existence of conflicting claims to representation and reasonable doubt of Confedera- cion's continuing majority. However, in agreeing with the Administrative Law Judge, se rely solely on evidence indicating objective considerations existing on or before October 21. 1976. Thus, the July 1975 employee letter, the pre-October 21, 1976, demrandds of the Amalgamated Clothing Workers to include the mechanics in its unit, and the Amalgamated authorization cards (signed by six mechanics in May 1976) - taken together -- support a finding that the Respondents' October 21, 1976, withdrawal of recognition was lawful. In finding that objective considerations existed, we specifically do not rely on any post-October 21. 1976, demands of Amalgamated or the February 1977 employee letter. DECISION JOSEPHINE H. KLEIN, Administrative Law Judge: Pursu- ant to a charge filed on November 15, 1976, by Confedera- cion Laborista de Puerto Rico (Confederacion), a corn- plaint was issued against Cadillac Manufacturing Corpora- tion; Cadillac Shirt Corporation; and Western Garments, Inc. (collectively referred to as Respondent) on February 7, 1977, alleging violation of Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq., by Respondent's refusal to bargain with Confederacion as the certified collective-bargaining repre- sentative of the mechanics employed by Respondent. Pursuant to due notice, the case came on for hearing before me in Hato Rey, Puerto Rico, on March 21, 1977. All parties were represented by counsel and were afforded full opportunity to present oral and other evidence. By agreement, several joint exhibits were introduced into evidence and both parties then rested without presenting any testimony. Having stated their positions in opening statements, the parties waived oral argument. The General Counsel stated that he did not intend to file a brief. Respondent requested and was granted leave to file a post- hearing brief. However, the General Counsel actually filed a brief, but Respondent did not. Upon the entire record, I make the following: FINDINGS OF FACT 1. PRELIMINARY FINDINGS A. In its answer to the complaint Respondent denied all the allegations of the complaint and at the hearing "put the Government on notice" that Respondent "wanted them to show who they were proceeding against and so on"; i.e., the jurisdictional allegations. The General Counsel relied on the Decision and Direction of Election in Case 24-RC-5377, in which, on June 14, 1974, the Regional Director stated that "It was . . . stipulated that the three companies are a single employer," and then found: The three captioned companies comprising the Em- ployer herein are Puerto Rican corporations engaged, under one roof, in the manufacture of men's clothing at Mayaguez, Puerto Rico. During the past calendar year, their purchases of goods and materials directly from sources outside Puerto Rico exceeded $50,000 in value, and during the same period its volume of sales of products to points outside Puerto Rico also exceeded $50,000 in value. On September 28, 1976, the three corporations, as the "Charged Party," entered into a settlement agreement in Case 24-CA-3754, discussed below. In the absence of evidence of any change since the certification and the settlement agreement, it is found that the corporations named herein are collectively a single employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 232 NLRB No. 96 586 CADILLAC MFG. CORP. B. Confederacion Laborista de Puerto Rico is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 1. THE UNFAIR LABOR PRACTICES A. Background' For many years Respondent's production and mainte- nance employees have been represented by the Amalga- mated Clothing Workers of America, AFL-CIO (Amalga- mated). In 1974 Confederacion filed a petition to represent the "mechanics and their helpers" employed by Respon- dent (Case 24-RC-5377). Amalgamated intervened in that proceeding, maintaining that its collective-bargaining agreement with Respondent barred Confederacion's peti- tion. After a hearing, the Regional Director found that the mechanics were not included in the certified production and maintenance unit and therefore there was no contract bar. He further found that the mechanics constituted an appropriate separate bargaining unit and directed an election. On July 30, 1974, after an election, in which both unions were on the ballot, Confederacion was certified as representative of the mechanics, who have always num- bered from five to seven. On July 16, 1975, five of the six mechanics signed a request for decertification of Confederacion addressed to the Board. The joint exhibit in the record is a photocopy bearing on its back a date stamp of "Nachman, Feldstein & Gelpt" dated August 4, 1975. Stanley Feldstein, Esq., is one of Respondent's attorneys. There is no evidence in the record as to whether the original was filed with and/or acted on by the Board.2 Counsel for Respondent also stated that at sometime a charge (or charges) alleging refusal to bargain was (or were) filed but apparently no complaint was issued.3 The Confederacion filed a charge on August 10, 1976, and an amended charge on September 27, 1976. An informal settlement agreement entered into by Respon- dent, the Confederacion and the General Counsel was approved by the Acting Regional Director on September 30, 1976 (Case 24-CA-3754). On October 5, 1976, Respondent posted a notice pursuant to the settlement agreement. On November 15, 1976, the Confederacion filed the charge in the present case, alleging Respondent's violation of Section 8(a)(5) by refusing to bargain since October 21, 1976. The complaint, issued on February 7, 1977, alleges primarily that Respondent unlawfully withdrew recogni- tion of the Confederacion on October 21, 1976. Respon- dent concedes that since that date it has refused to bargain I Since there is no testimony, this statement of facts is based on documentary evidence and statements of counsel. 2 At the present hearing, Mr. Weasler, counsel for Respondent said: "[The mechanics have] come in, they filed-they left some papers on the desk of one of our representatives which were in turn sent to the Labor Board. The Labor Board acknowledged receipt of the papers and said they would send a petition for these boys to ask for an election." It seems likely that counsel was referring to the July 16, 1975, document. In his brief, counsel for the General Counsel says: "The Regional Office records do not show the filing of any petition seeking decertification of Confederacion." with Confederacion because of a conflicting claim to representation by Amalgamated. It appears that on November 15, the same day the present charge was filed, Respondent filed an RM petition (Case 24-RM-208). On January 18, 1977, the Regional Director dismissed that petition, stating that "because no question concerning representation exists, an 8(aX1)(5) complaint in Case 24-CA-3792 will be issued." 4 B. The Present Proceeding For an understanding of the issues here presented, it is essential that the course of the hearing be reviewed. In an opening statement summarizing the relevant facts, counsel for the General Counsel said: ... Eventually, Confederacion filed an 8(aX5) charge alleging that Cadillac had engaged in dilatory tactics in the bargaining negotiations. The number of the charge was 24-CA-3754. That charge was filed, Your Honor, on August 10, 1976 ... it was amended September 27, 1976-and it culminated in a settlement agreement which I [shall] put into evidence, executed by Mr. Weasler on behalf of the Company and Mr. Velez Mangual on behalf of the Confederacion, on September 28, 1976. The settlement agreement was of an informal nature and the notice provided for therein was that-well, I need not recite it, Your Honor, I'll put it in evidence. In his opening statement on behalf of Respondent, George L. Weasler, Esq., conceded that in a letter dated October 21, 1976, Respondent withdrew recognition and refused to bargain with the Confederacion because "of the conflicting claims of [Confederacion] and of Amalgamated . . . and the resultant confusion as to which labor organization does in fact represent the company's mechanics." Respondent's counsel did not suggest any specific disagreement with the statements of counsel for the General Counsel concerning the charge and settlement in Case 24-CA-3754. On the basis of Respondent's acknowledgment of the settlement agreement and admission of its subsequent refusal to bargain, I indicated my view that, under Poole Foundry and Machine Company, 95 NLRB 34 (1951), enfd. 192 F.2d 740 (C.A. 4), cert. denied 342 U.S. 954, and numerous cases following Poole, I saw no ready alternative to finding that Respondent had violated the Act by 3 Counsel for Respondent said: "[wjhile it is true that the Federation had filed charges on August 10th of ['76'], which they amended, they filed former charges claiming that we had not negotiated with the Federation and the same reasons they gave the last time they had given previously. And those charges were withdrawn or dismissed, I forget. Of course the documents will be made available during the course of the hearing." The documents referred to were not introduced. I Although this petition was referred to by counsel at the hearing, the documents were not put into evidence. However, they have been appended to the General Counsel's brief, with a request that I take official notice of them. 587 DECISIONS OF NATIONAL LABOR RELATIONS BOARD withdrawing recognition within a month after settling an 8(a)(5) charge.5 I urged the parties to waive Decision by an Administrative Law Judge and stipulate the record directly to the Board for possible reexamination of the Poole Foundry principle, "unless [Respondent was] prepared to argue why Poole Foundry isn't applicable." Counsel for both parties stated that counsel for the General Counsel had previously recommended stipulating the matter direct- ly to the Board, but Respondent's counsel had refused to agree. The parties then agreed to the introduction of several documents and thereupon both rested. Thus, with no testimony taken, the matter was submitted on the formal papers, together with the following documentary evidence, submitted as joint exhibits: (I) The Decision and Direction of Election and the Certification of Representative in Case 24-RC-5377, issued on July 30, 1974, certifying the Confederacion as representative of Respondent's mechanics. (2) and (3) The Amended Charge and Settlement Agreement, approved September 30, 1976, in Case 24- CA-3754. (4) A letter dated October 13, 1976, from Confedera- cion's counsel to Respondent's counsel requesting a meeting "to continue conversations." (5) A letter dated December 22, 1976, from Amalga- mated to Respondent renewing a request for inclusion of the mechanics in the existing collective-bargaining agreement. (6) and (7) A letter dated December 29, 1976, from Respondent's counsel to cocounsel enclosing copies of a letter dated October 21, 1976, by Respondent's counsel to counsel and a representative of Confedera- cion withdrawing recognition because of "the conflict- ing claims of [Confederacion] and of Amalgamated." (8) A letter dated February 16, 1977, signed by five mechanics notifying Respondent that they "have withdrawn representation of us from Confederacion." (9) A letter dated July 16, 1975, signed by five of the six mechanics addressed to the Board and stating the signatories' desire for decertification of Confederacion. (10) Membership and authorization cards for the Amalgamated dated May 28, 1976, executed by six mechanics. The very short proceedings ended with Respondent's counsel again declining to stipulate the matter to the Board because "we feel that for reasons of our own, policy reasons, that we want findings of fact by you so that we have a proper record on which to take this up." The General Counsel then waived oral argument and the filing of a brief, stating that he was relying on "his opening statement and . . . the case citations," which were Poole Foundry and N. J. MacDonald & Sons, Inc., 155 NLRB 67 5 I said: "ITI]he Board law seems to be so clear that I-I mean this is just on the opening statements, now I assume that everybody's opening statements will be supported by evidence--how do we get around Poole Foundry and the hundreds of cases following it?" B The original file does not appear in the record. The brief says: "In closing, upon reading the transcript, Counsel for the General Counsel noted that the Administrative Law Judge referred on pages 13, 14. and 15 to the doctrine of Poole Foundry and Machine Co.... (1965), which he had mentioned "as being close to our factual situation." While waiving oral argument, Respon- dent's counsel said he "would like to briefly review some of the decisions" in a posthearing brief. As previously stated, the General Counsel filed a brief, while Respondent did not. Upon reviewing the record, I discovered that, contrary to the representations of counsel for the General Counsel, in effect corroborated by counsel for Respondent, Case 24- CA-3754 did not involve any alleged violation of Section 8(aX5). The amended charge6 alleged only that since May 28, 1976, Respondent had violated Section 8(a)(2) and (1) by unlawfully assisting Amalgamated "by insisting that mechanics join said union notwithstanding that their certified collective-bargaining representative is Confedera- cion." In the settlement agreement Respondent was committed to refrain from discouraging membership in Confederacion "or any other labor organization," encour- aging or soliciting the mechanics to assist or support Amalgamated "or any other labor organization," and interfering with, restraining or coercing its employees "in any other manner." The settlement agreement did not require Respondent to bargain with Confederacion. C. Discussion and Conclusion Since Case 24-CA-3754 did not involve alleged violation of Section 8(aX5), as counsel had represented, the Poole Foundry rule is inapplicable. As said in that case (95 NLRB at 36): It is well settled that after the Board finds that an employer has failed in his statutory duty to bargain with a union, and orders the employer to bargain, such an order must be carried out for a reasonable time thereafter without regard to whether or not there are fluctuations in the majority status of the union during that period.... Similarly, a settlement agreement containing a bargaining provision, if it is to achieve its purpose, must be treated as giving the parties thereto a reasonable time in which to conclude a contract. [Emphasis supplied.] The foregoing language was quoted with approval in N. J. MacDonald & Sons, Inc., 155 NLRB at 71, which at the hearing counsel for the General Counsel cited as being factually close to the present. For the applicability of the Poole Foundry principle, it is essential that the employer must have committed himself in the prior settlement to bargain with the charging union. Since, contrary to the representations of counsel, there is no such prior bargaining commitment in the present case, Poole Foundry is not controlling. In his posthearing brief the General Counsel disavows reliance thereon.7 The General Counsel's present contention, not suggested at the Counsel for the General Counsel may have compounded the situation by agreeing to putting the prior charge, settlement agreement and notice in evidence as Joint Exhibit 2, and by his reference to Poole on pp. 23-24 of the transcript. Said Exhibit, however, was included only for the purpose of chronological continuity and not as the primary theory of the case." It should be pointed out that on p. 7 of the transcript counsel for the General Counsel referred to the charge in Case 24-CA-3754 as "an 8(a)5) charge alleging that Cadillac had engaged in dilatory tactics in the bargaining 588 CADILLAC MFG. CORP. hearing, appears to be that the presumption of majority arising from the 1974 certification of Confederacion has not been rebutted and therefore Respondent is required to bargain with that union. Here Respondent appears to rely primarily on a conflicting claim of representation, rather than a loss of majority as such. The earliest indication of Confederacion's loss of majority is the letter of July 16, 1975, to the Board in which five or six named mechanics requested decertification. The General Counsel apparently contends that Respondent may not rely on this document because no copy was sent to Respondent and "there was no followup by the signatories of said letter." Counsel fails to note that the back of the copy in evidence as a joint exhibit bears a date stamp of August 4, 1975, in the office of Nachman, Feldstein & Gelpt. Mr. Feldstein has been counsel for Respondent for some time and appeared as such in the present hearing. There is no apparent reason for questioning the date stamp. Nor is it entirely true that there was no "followup" of the 1975 decertification request. The fact is that under date of May 28, 1976, six mechanics employed by Respondent signed authorization cards for Amalgamated. Of those six, three had been listed as employees in the 1975 letter and two of them had signed it. Then there was a statement dated February 16, 1977, in which employees notified Respondent that "we have withdrawn representa- tion of us from Confederacion." That notification was signed by five of the persons who executed Amalgamated cards on May 28, 1976. Two of them had also signed the July 16, 1975, repudiation. Thus, there is evidence that in each of 3 successive years, all after the certification year, a majority of the mechanics indicated in writing that they did not want representation by the Confederacion. The July 1975 repudiation probably might not by itself justify Respondent's withdrawal of recognition more than a year later. Similarly, Respondent could not advance the Febru- ary 16, 1977, document as establishing a good-faith doubt of the Union's majority in October 1976.8 But the 1975 request for decertification of Confederacion, the 1976, authorizations of Amalgamated, and the 1977 repudiation of Confederacion, taken together, are undoubtedly suffi- cient to establish a lack of majority at the present time, so that it would be improper now to order Respondent to bargain with the Confederacion, if those documents represent the employees' free choice, uninfluenced by misconduct of Respondent. In any event, the Amalgamated authorization cards are sufficient in themselves prima facie to warrant Respon- dent's allegation of a conflicting claim to representation precluding its continued recognition of Confederacion. 9 negotiations" and proceeded: "The settlement agreement was of an informal nature and the notice provided for therein was that-well, I need not recite it. Your Honor. I'll put it in evidence." Poole Foundry was not mentioned until after Respondent's counsel's opening statement conceding the existence of the settlement agreement and the subsequent refusal to bargain. I But the February 1977 repudiation might well in itself preclude issuance of a bargaining order at this time. Deblin Manufacturing Corporation. 208 N LRB 392 (1974). 9 The General Counsel says: "The only evidence in this regard is ... a letter from Amalgamated [to Respondent) reiterating its request for the certified unit of mechanics. This letter is dated December 22, 1976. and although it recites prior requests before and after the October 21, 1976, National Cash Register Company v. N.L.R.B., 494 F.2d 189 (C.A. 8, 1974). Of course, if Respondent had solicited the employees' repudiation of Confederacion and/or their support for Amalgamated, it could not rely on such employee activities as showing a loss of majority by Confederacion, a conflicting claim by Amalgamated, or reasonable grounds for a good-faith doubt of Confederacion's continuing majority status. The National Cash Register Company, 201 NLRB 1034 (1973); General Motors Acceptance Corpora- tion, 196 NLRB 137 (1972); Condon Transport, Inc., 211 NLRB 297, 300 (1974); Sander, Inc. & Zeasel, Inc. d/b/a. Eden Forest & Garden of Eden Nursing Homes, 213 NLRB 734 (1974); Telautograph Corporation, 199 NLRB 892 (1972); N.LR.B. v. Sky WolfSales, etc., 470 F.2d 827, 830 (C.A. 9, 1972). The difficulty, however, is that the present complaint does not allege, and the General Counsel did not offer or attempt to establish, that the mechanics' defection from Confederacion and/or their authorization of Amalgamated was unlawfully caused, encouraged, or influenced by Respondent. To be sure, Confederacion had filed a charge alleging that Respondent had unlawfully insisted that the mechanics join Amalgamated. In settlement of that charge, Respondent agreed not to discourage membership in Confederacion or solicit the mechanics to support or assist Amalgamated, or to interfere with the employees' statutory rights in any other manner. However, that settlement agreement, signed by Confederacion as well as the General Counsel, and approved by the Regional Director, con- tained an express nonadmission clause, reading: "By executing this agreement charged party does not admit the commission of any unfair labor practices." The prior charge and settlement agreement do not constitute evidence that the Amalgamated's cards were tainted.10 As stated in Southwest Chevrolet Corp., 194 NLRB 975 (1972): The Board has uniformly held that settlement agree- ments, and consent decrees arising therefrom, have no probative value in establishing that violations of the Act have occurred and may not be relied on to establish either union animus or a "proclivity" to violate the Act. This approach is founded on both legal and practical considerations.... Using a settlement agreement . .. .for inferring unlawful motivation for a subsequent action would in our opinion jeopardize the Board's efforts to obtain settlement agreements. [Empha- sis supplied.] refusal to bargain, a naked letter of this nature cannot be construed as objective factors rebutting the presumption." In his opening statement counsel for the General Counsel said: "Now, after that certification Amalgamated continued their demands for the mechanics and they continued those demands even after the informal settlement agreement which I previously stated on the record concerning the Company's dilatory tactics." Under the circumstances of this litigation. I find the letter of December 22, 1976. to be probative evidence that Amalgamated was demanding recognition as the mechanics' representative. 10 It may be inferred that Confederacion claimed they were tainted since its charge alleged assistance since May 28, 1976, the date on the cards, by requinng the employee tojoin Amalgamated. 589 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There is no allegation of post-settlement misconduct and the settlement agreement has not been set aside. Even without having the settlement agreement set aside, the General Counsel could have introduced evidence of presettlement misconduct as background to explain and illuminate Respondent's post-settlement conduct. Such background evidence could properly even cover events antedating the Section 10(b) cutoff date (Local 613 of the International Brotherhood of Electrical Workers, AFL-CIO (M.H.E. Contracting, Inc.), 227 NLRB 1954, fn. 1 (1977); D. W. Hearn d/b/a/ D. W. Hearn Machine Works, 185 NLRB 736, 737 (1970)) and matters covered by the settlement agreement (Steves Sash & Door Company, 164 NLRB 468, 476 (1967), enfd. in pertinent part 401 F.2d 676, 678 (C.A. 5, 1968)). But General Counsel has presented not a scintilla of evidence of misconduct by Respondent at any time. Cf. Deblin Manufacturing Corpo- ration, 208 NLRB 392, 401 (1974). It might be suggested that Respondent's willingness to settle the prior Section 8(a)(2) charge, particularly with the posting of a notice embodying the traditional language of a broad cease-and-desist order, estops it to make defensive use of the Amalgamated's authorization cards and claims to representation, which were apparently the basis of Confederacion's amended charge in Case 24-CA-3754. But it seems to me that, realistically viewed, use of the settlement as the basis of an estoppel would be to afford it probative evidentiary value. In fact, if not in theory, "[u ]sing [the] settlement agreement" to estop Respondent's defense in this case would be to use it as the basis "for inferring unlawful motivation for [its] subsequent action" in withdrawing recognition, in defiance of the Board's established rule, as quoted above from Southwest Chevrolet Corp., supra. Thus, since the prior Section 8(a)(2) charge and settlement are the only basis in the record for impugning Respondent's reliance on the Amalgamated cards as supporting a conflicting claim of representation and raising a doubt as to Confederacion's continuing majority, it must be concluded that the General Counsel has failed to establish that Respondent's subsequent withdrawal of recognition was violative of Section 8(a)(5). In his brief, the General Counsel contends that the Amalgamated cards, dated May 28, 1976, could not justify withdrawal of recognition on October 21, 1976, since "Respondent and Confederacion continued to bargain during the intervening period." Without considering whether Respondent would be estopped by such interim bargaining, it is sufficient to note that there is no evidence in the record that Respondent ever did engage in any bargaining with Confederacion after May 28, 1976. In sum, the documentary evidence submitted as joint exhibits is sufficient to rebut the presumption of Confeder- acion's continuing majority after the end of the certifica- tion year and to establish prima facie the existence of a conflicting claim. The General Counsel did not then sustain his burden of going forward. Accordingly, for the foregoing reasons, I find and conclude that the General Counsel has failed to establish, as alleged in the complaint, L" Respondent's counsel was apparently not unaware of the implications of a settlement of a prior 8(a)S5) charge. In requesting an opportunity to file that Respondent has failed and refused to bargain with Confederacion in violation of Section 8(a)(5). D. A Postscript As shown above, the course of the present litigation was influenced, if not dictated, by a misconception as to a crucial fact; i.e., the nature of the charge and settlement in Case 24-CA-3754. This misconception arose from the General Counsel's opening statement, reinforced by Re- spondent's opening statement. It is difficult to say what the course might have been absent the basic factual misunder- standing. It is not clear whether the General Counsel originally intended to present testimony in addition to documentary evidence supporting the representations made in the opening statement. His statements, corrobo- rated by Respondent's counsel, that he had previously urged Respondent to join in stipulating the case directly to the Board, without a decision by an Administrative Law Judge, suggest that he did not contemplate presenting testimony, at least in his direct case. On the other hand, by urging that the Administrative Law Judge would be required to make credibility resolutions, Respondent's counsel clearly indicated that they intended to present testimony, although they failed to indicate what credibility issues they anticipated. As previously noted, Respondent's counsel have not provided any enlightenment either in oral argument or in a brief. Although Respondent's counsel rejected the suggestion of both counsel for the General Counsel and the Adminis- trative Law Judge that the matter be stipulated directly to the Board, it appears to me probable that the truncated nature of the hearing was occasioned by my indication that I believed the Poole Foundry doctrine to be controlling on the facts stated. Accordingly, when, after reading the record, including the exhibits which I had not had an opportunity to examine at the hearing after listening to the opening statements, my impulse was, subject to what Respondent's anticipated brief might say, to issue an order to show cause why the record should not be reopened for full hearing free of counsel's and, consequently, my misconception of the nature of the prior settlement agreement, I have carefully considered the possibility that it might unduly favor the General Counsel to reopen the record and thus give him a second opportunity to prove the allegation of the complaint, which he had failed to do at the first hearing. I eventually concluded that such action would not be unfair to Respondent since its counsel had been equally responsible for the factual misunderstanding. Both attorneys representing Respondent had been person- ally involved in the course of conduct under scrutiny and one of them had executed (and presumably negotiated) the settlement agreement on behalf of Respondent. l On further consideration of the matter, after receiving the General Counsel's brief, I have concluded that no useful purpose would be served by reopening the record for further hearing. The present record is sufficient to establish that Respondent had objective evidence constituting grounds for asserting the existence of conflicting claims to a brief discussing prior decisions, Respondent's counsel said: "The law that you cited is not new law to us either. We are not babies in this field." 590 CADILLAC MFG. CORP. representation and reasonable doubt of Confederacion's continuing majority. Since the General Counsel has not suggested that he is prepared to, or desires an opportunity to, establish by evidence that the support for Amalgamated or the repudiation of Confederacion was the result of misconduct by Respondent, I can see no basis for concluding that a new hearing might alter the result. Under all the circumstances, it seems to me that the employees will be best served if they are provided an opportunity now to express their views in a new election. It is to be hoped that they will be provided that opportunity in an atmo- sphere free of improper influences, including what I sense has been self-interested maneuvering and jockeying for legal advantage on the part of Respondent and, possibly, the two unions. CONCLUSIONS OF LAW 1. Cadillac Manufacturing Corporation; Cadillac Shirt Corporation; and Western Garments, Inc., collectively, are, and have been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Confederacion Laborista de Puerto Rico and Amal- gamated Clothing Workers of America, AFL-CIO, are, and have been at all times material herein, labor organiza- tions within the meaning of Section 2(5) of the Act. 3. It has not been established that Respondent has engaged in any unfair labor practices as alleged in the complaint. [Recommended Order for dismissal omitted from publi- cation.] 591