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Amalgamated Clothing Workers of America v. National Labor Relations Board

May 11, 1965


Author: Waterman


WATERMAN, C.J.: Pursuant to a charge by the Amalgamated Clothing Workers of America, the National Labor Relations Board found that Edro Corporation and Anasco Gloves, Inc. had violated Sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act, 29 U.S.C. ยงยง 158(a)(1) and (5). The decision and order of the Board are reported at 147 NLRB No. 107. In Docket No. 29097, Amalgamated petitions this court to modify the Board's order so as to provide for more extensive relief. In Docket No. 29131, the Board petitions for enforcement of its order, and Edro cross-petitions to have the order set aside.

Amalgamated is a "person aggrieved" under Section 10(f) of the Act. Local 282, Int'l Bhd. of Teamsters v. NLRB, 339 F.2d 795, 799-800 (2 Cir. 1964). It has its headquarters and principal office in New York City, within this judicial circuit. Consequently the union's petition is properly before our court. On the other hand, Edro is incorporated and has its principal place of business in Puerto Rico, and most of the alleged unfair labor practices occurred there. Ordinarily the Board's petition under Section 10(e) of the Act would therefore have been presented to the Court of Appeals for the First Circuit. Nevertheless, and on this point all parties are in agreement, we may take jurisdiction of the entire controversy, so that it can be settled in a single proceeding. Confectionery & Tobacco Drivers Union v. NLRB, 312 F.2d 108, 111 (2 Cir. 1963).

We hold that Edro was accorded a fair hearing by the trial examiner and that, within the principles of Universal Camera Corp. v. NLRB, 340 U.S. 474, 95 L. Ed. 456, 71 S. Ct. 456 (1951), the following findings of fact were supported by substantial evidence.

On October 8, 1962, Amalgamated held authorization cards signed by a clear majority of Edro's employees. The regional director of the union informed the company's general manager of this fact and asked for collective bargaining. The general manager replied that he could do nothing without instructions from his superiors. Thereupon the assistant secretary-treasurer of Amalgamated contacted Edro's president to request the company to recognize and bargain with the union. The president expressed doubts that Amalgamated represented a majority of Edro's employees. He refused the union's offer to submit the cards to a neutral examiner and rejected the union's proposal that a consent election be held. Subsequently he also informed the assistant secretary-treasurer of the union that if Amalgamated continued to press for recognition at the plant in Puerto Rico it would be shut down, and that if the Board obliged him to bargain with Amalgamated the ensuing negotiations would be fruitless.

Amalgamated filed charges with the Board, alleging that Edro, in violation of Section 8(a)(5) of the Act, had refused to bargain. After further discussions between the union and the company, a consent agreement was signed on January 24, 1963, providing for an election under Board auspices. Amalgamated promised to withdraw its charge under Section 8(a)(5); Edro promised not to interfere with a free choice by its employees.

In the week preceding the election, agents of Edro asked various employees which way they were going to vote, warned them that the plant would be shut down if the union won, and promised them that if the union lost their wages would be raised $1 per hour and they would receive free insurance. Union officials did not learn of these activities until after the election. On February 4, 1963, Amalgamated was voted down by a decisive margin. Edro permitted its employees to celebrate the returns for an entire afternoon without loss of pay.

Amalgamated then renewed its charge before the Board that Edro had refused to bargain prior to the election, in violation of Section 8(a)(5) of the Act; and it added a charge that the company had interfered with its employees' rights to unionize, in violation of Section 8(a)(1). Outside the courtroom at a subsequent hearing before the trial examiner, Anasco's general manager told an employee that she was going to strike one of the Board's witnesses, and later she attempted to carry out her threat in the presence of other employees.

The Board, adopting the decision of its trial examiner, correctly ruled that Edro had violated Section 8(a)(1) by interrogating its employees in a coercive manner, by threatening them with reprisals if the union won, by promising them benefits if the union lost, by granting them benefits when the union did lose, and by inhibiting recourse to the Board for relief against unfair labor practices. E.g., NLRB v. Philamon Labs., Inc., 298 F.2d 176 (2 Cir.), cert. denied, 370 U.S. 919, 82 S. Ct. 1555, 8 L. Ed. 2d 498 (1962); Bausch & Lomb Optical Co. v. NLRB, 217 F.2d 575 (2 Cir. 1954); Joy Silk Mills, Inc. v. NLRB, 87 U.S. App. D.C. 360, 185 F.2d 732 (D.C. Cir. 1950), cert. denied, 341 U.S. 914, 95 L. Ed. 1350, 71 S. Ct. 734 (1951). The Board also ruled correctly that Edro had violated Sections 8(a)(5) and (1) by refusing in bad faith to bargain with Amalgamated prior to the election. E.g., Edward Fields, Inc. v. NLRB, 325 F.2d 754, 760-61 (2 Cir. 1963); NLRB v. Philamon Labs., Inc., supra; Joy Silk Mills, Inc. v. NLRB, supra.

The Board ordered Edro to cease and desist from threatening its employees with removal of the plant if Amalgamated should win an election; from unlawfully interrogating its employees with regard to their unionism; from promising benefits to its employees in order to discourage membership in Amalgamated; and from otherwise violating Section 8(a)(1) of the Act. The Board also ordered Edro to bargain collectively with Amalgamated upon the union's request, and to post the customary notices for sixty days.

Edro objects to the Board's order that it bargain with Amalgamated, on the ground that the union never represented an uncoerced majority of its employees. The company claims that the union obtained the authorization cards by misrepresenting to its employees that the union already enjoyed majority support. We assume for the sake of the argument that such a falsehood would void the authorizations. Nevertheless, we cannot find in the record any intelligible evidence that the union organizers, falsely or otherwise, told employees whose signatures were being sought that Amalgamated already had majority endorsement.

Edro also bases its objection on the wording of the authorization cards:

"Those joining now will never have to make an initial payment. Those who wait until the contract is signed will have to pay the regular initiation fees."

The company claims that this statement constituted an additional misrepresentation, inasmuch as Amalgamated had no intention of collecting initiation fees from employees who joined the union after the contract was signed. For proof of its allegation regarding the union's intent, the company relies solely on the fact that in the autumn of 1960, two years before the campaign among Edro's employees, Amalgamated exacted no ...

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