Barnwell Sportswear, Inc.

National Labor Relations Board - Board Decisions

Jun 9, 1970

183 N.L.R.B. 103 (N.L.R.B. 1970)

BARNWELL SPORTSWEAR, INC.
Barnwell Sportswear , Inc. and Local 361, Interna-
tional Ladies' Garment Workers' Union,
AFL-CIO. Cases 1-CA-6860 and 1-RC-10629
June 9, 1970
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY MEMBERS FANNING, BROWN, AND JFNKINS
On March 2, 1970, Trial Examiner Robert E.
Mullin issued his Decision in the above-entitled
proceeding, finding that the. Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion. The Trial Examiner also found that the
aforesaid conduct interfered with the National
Labor Relations Board election of June 26, 1969,
in the representation proceeding, and recom-
mended that the said election be set aside and that
a new election be held. Thereafter, the Respondent
and Charging Party, respectively, filed exceptions
to the the Decision and supporting briefs. The
General Counsel filed a brief in support of the Trial
Examiner's Decision, and an answering brief to the
Charging Party's exception was filed by the
Respondent.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
Board has delegated its powers in connection with
this case to a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.'
ORDER'
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the Respondent, Barnwell Sportswear,
Inc., Bourne, Massachusetts, its officers, agents,
successors , and assigns , shall take the action set
forth in the Trial Examiner's recommended Order.
IT IS FURTHER ORDERED that the election held on
June 26, 1969, in Case 1-RC-10629, be, and it
hereby is, set aside, and that said case be, and it
103
hereby is, remanded to the Regional Director for
Region 1 to conduct a new election when he deems
that circumstances permit the free choice of a bar-
gaining representative.
[Direction of Second Election2 omitted from
publication. ]
' The Respondent has excepted to the credibility findings made by the
Trial Examiner It is the Board's established policy, however , not to over-
rule a Trial Examiner 's resolutions with respect to credibility unless, as is
not the case here, the preponderance of all the relevant evidence convinces
us that the resolutions were incorrect Standard Dry Wall Products, Inc , 91
NLRB 544, enfd 188 F 2d 362 (C A 3)
2 In order to assure that all eligible voters may have the opportunity to be
informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their ad-
dresses which may be used to communicate with them Excelsior Un-
deni ear Inc, 156 NLRB 1236, N L R B v Wyman-Gordon Co, 394 U S
759 Accordingly, it is hereby directed that an election eligibility list, con-
taining the names and addresses of all the eligible voters, must be filed by
the Employer with the Regional Director for Region I within 7 days after
the date of issuance of the Notice of Second Election by the Regional
Director The Regional Director shall make the list available to all parties
to the election No extension of time to file this list shall be granted by the
Regional Director except in extraordinary circumstances Failure to
comply with this requirement shall be grounds for setting aside the election
whenever proper objections are filed
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
ROBERT E. MULLIN, Trial Examiner: The hearing
in this case was held on December 9, 1969, in
Plymouth, Massachusetts, pursuant to charges duly
filed and served' and a complaint issued on
November 25, 1969. The complaint presents
questions as to whether the Respondent violated
Section 8(a)(1) of the National Labor Relations
Act, as amended. In its answer , duly filed, the
Respondent conceded certain facts with respect to
its business operations, but it denied all allegations
that it had committed any unfair labor practices.
All parties appeared at the hearing and were
given full opportunity to examine and cross-ex-
amine witnesses , to introduce relevant evidence,
-and to file briefs. A brief was submitted by the
Respondent on January 20, 1970, and by the
General Counsel on January 22, 1970.
Procedural Issue Posed by the Appendix to General
Counsel's Brief
At the hearing, Edward Clark, business agent for
the Union, testified that the Union distributed a se-
ries of from 8 to 10 different leaflets to the em-
ployees during the course of the organizational
campaign. The Respondent had Clark identify four
of these pamphlets and then offered them as ex-
hibits . The Trial Examiner received them in
' The original charge was filed on September 22, 1969 A first amended
charge was filed on October 22, 1969
183 NLRB No. 11
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence over the strenuous objections of the
General Counsel who argued that the leaflets were
totally irrelevant to any issue in the case. Sub-
sequently, in response to a question from counsel
for the Respondent, Clark conceded that, if asked
to do so, he could supply the other pamphlets in the
series in addition to the four which had been
received. However, the Respondent did not
thereafter demand that the business agent produce
these leaflets, nor did he request a subpena that
would require their production, or make an offer of
proof as to what they would show if received.
Notwithstanding the General Counsel's position
at the hearing as to the relevance of the Union's
campaign literature, his brief has an appendix made
up of 11 union leaflets (including copies of the 4
that were received in evidence at the hearing)
which the General Counsel describes therein as
"the complete series utilized by the Union [during
the organizational campaign]."
The General Counsel made no separate motion
for the introduction in evidence of the aforesaid
documents, nor did he offer any explanation for
this method of presenting them to the Trial Ex-
aminer . At the same time it should be noted that,
subsequent to the submission of the General Coun-
sel's brief, the Respondent voiced no objection to
the contents of the appendix in question. Moreover,
in a footnote in its brief, the Respondent reiterated
the position it stated at the hearing, viz, that all of
the Union's campaign literature should have been
introduced by the General Counsel. Nevertheless,
the method taken by the General Counsel to bring
these documents to the attention of the Trial Ex-
aminer cannot be condoned. All portions of the
aforesaid appendix which were not received in
evidence at the hearing (as, for instance, were the
four leaflets which appear in the record as Resp.
Exhs. 1, 2, 3, and 4) must be, and they hereby are,
rejected. Furthermore, they have not been con-
sidered by the Trial Examiner in connection with
any issue in this case.
Upon the entire record in the case, including the
briefs of counsel, and from observation of the wit-
nesses , make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a South Carolina corporation,
maintains its principal office and plant in Bourne,
Massachusetts, where it is engaged in the manufac-
ture, sale, and distribution of garments. In the
course and conduct of its business the Respondent
causes large quantities of fabric used by it in the
manufacture of garments to be purchased and
transported in interstate commerce from and
' All dates referred to hereinafter are for the year 1969, unless otherwise
noted
3 This name is also spelled Duggan in the transcript
through various States of the United States other
than the Commonwealth of Massachusetts.
Similarly , and at all times material herein, the
Respondent has sold and transported substantial
quantities of fabric in interstate commerce from its
plant in Bourne , to States of the United States other
than Massachusetts . The Respondent annually per-
forms services valued in excess of $50,000 for
customers who are engaged in interstate commerce.
Upon the foregoing facts, the Respondent con-
cedes, and the Trial Examiner finds that Barnwell
Sportswear , Inc., is engaged in commerce within
the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 361, International Ladies' Garment Work-
ers' Union, AFL-CIO, herein called Local 361, or
Union, is a labor organization within the meaning
of the Act.
Case 1-CA-6860
III. THE ALLEGED UNFAIR
LABOR PRACTICES
The complaint alleges that the Respondent vio-
lated Section 8(a)(1) of the Act in May and June
19692 by coercively interrogating its employees as
to whether they had signed union cards, and by
promising and granting its employees a wage in-
crease while a question concerning representation
was pending. The complaint also alleges that in a
letter distributed on the eve of a Board-conducted
election the Respondent unlawfully threatened the
employees with loss of their jobs if the Union won.
All of these allegations are denied by the Respon-
dent in their entirety.
A. Introduction and Sequence of Events
The Respondent opened its plant in Bourne
about July 1, 1968. Thereafter a small work force
was hired. In April 1969, representatives of the
Union instituted an organizational campaign among
the employees. About May 15, Edward Clark and
Arnold Dubin,3 business agent and district
manager, respectively, for the Union, called upon
Harry L. Weiner, president and general manager of
the Respondent, in his office at the plant. At this
meeting, the union representatives claimed to
represent a majority of the employees and
requested that the Company grant the Union recog-
nition.' Plant Manager Weiner denied their request
on the ground that he doubted their claim to
represent a majority of the employees. In a letter
dated May 16, and addressed to the Respondent,
' According to Clark's credible and uncontradicted testimony, prior to
this demand for recognition, the Union had secured authorization cards
from I I of the approximately 18 employees at the Respondent 's plant
BARNWELL SPORTSWEAR, INC.
the Union renewed this demand and asked for an
opportunity to bargain with the Company as
majority representative. In a response dated May
20, the Respondent declined this request on the
ground that it had serious doubts as to the Union's
majority, and stated that it would not meet with the
Union until the latter had been certified by the
Board as the legally designated bargaining agent for
the employees.
On May 22, the Union filed a representation peti-
tion requesting an election in a unit made up of the
production employees at the Bourne plant. Case
1-RC-10629. On June 9, the Union and the Com-
pany executed a Stipulation for Certification Upon
Consent Election. At the election, held on June 26,
in a unit of approximately 18 eligible voters, there
were 7 votes cast for the Union, 9 votes cast against
the Union, and 1 challenged ballot. On July 1, the
Union filed timely objections to conduct affecting
the results of the election, and on September 15,
the Regional Director issued his Report on Objec-
tions wherein he recommended that, on the basis of
his investigation, the election be set aside.
B. The Evidence as to the Violations of Section
8(a)(1); Findings of Fact and Conclusions of Law
With Respect Thereto
Several of the employees testified that on about
May 15, Plant Manager Weiner interrogated them
as to their union activities. Thus, according to
Theresa Monte, on or about that date, Weiner
"asked me about the Union, if they had gotten in
touch with me; and at that time the Union hadn't
gotten in touch with me. I told him, no." Diane
Cruz, one of the pressers, testified that about May
15, Weiner sought her out at her work station and
asked whether she had signed a union card. Ac-
cording to Cruz, after she protested that she did not
have to answer such a question, the plant manager
then asked whether Beatrice Cromwell, a
coworker, had signed a card. Cruz testified that she
suggested that, since Cromwell was in the im-
mediate vicinity, Weiner should ask her himself.
According to Cruz, Weiner thereupon questioned
Cromwell as to whether she had signed a union
card and the latter answered in the negative. Cruz
further testified that, on this same occasion, Weiner
also questioned Lena Barros, another employee
who was present, as to whether she had signed a
card. Cromwell was called as a witness and cor-
roborated the testimony given by Cruz. Weiner de-
nied ever having questioned any employee about
the Union or about having signed a card. The
' In its brief, the Respondent attacked Cruz' credibility on the ground
that in a preheanng affidavit she gave the date of this incident as April 29,
whereas at the hearing she gave May 15 as the date However, in both her
affidavit and when on the stand , she stated that the incident occurred on
the same day that the union representatives came to the plant to demand
recognition There was no dispute that the latter event occurred on May
15 Cruz was subjected to an able and extended cross-examination by
counsel for the Respondent Throughout this period of questioning she
remained a frank and convincing witness Later, Cruz' testimony was cor-
105
testimony of Monte, Cruz, and Cromwell on this is-
sue, however, was credible and far more persuasive
than the bare denial which Weiner made.5
There was testimony that in the period im-
mediately before the election, Plant Manager
Weiner announced an impending wage raise. Em-
ployee Cruz testified that while at work on Mon-
day, June 23, Weiner asked that she see him during
the afternoon break. According to Cruz, when she
did so, Weiner told her that he had already in-
formed some of the employees that there was going
to be a change in the pay rates for those on
piecework and that for her this would mean a raise
from $1.65 an hour,' to $1.77.' Cruz' testimony as
to this incident was credible. Although Weiner de-
nied that he spoke to any of the employees about a
wage increase prior to the election, the Trial Ex-
aminer concludes and finds that Weiner had a con-
versation with Cruz substantially as she described
it.
The election was held on June 26. Employee
Theresa Monte testified that shortly before the
election, Plant Manager Weiner asked her whether
she knew anything about the Union and whether
she was going to vote for it. According to Monte,
she declined to answer and told Weiner that he was
asking about a personal matter.
On the day before the election Weiner spoke to
all the employees then at work in the plant.
Beatrice Cromwell and Diana Cruz testified as to
what they heard him say. According to Cromwell,
Weiner told them that he was very disturbed about
the advent of the Union because the Company had
only one customer, a firm in Brockton, Mas-
sachusetts, and that the latter was a nonunion em-
ployer. Cromwell testified that Weiner told them
that the Union was really "out to get" the Brockton
customer and was not interested in him. According
to Cromwell, Weiner further stated that "if the
Union got in we probably wouldn't have that much
work ... that we might have to close ...... Crom-
well testified that Weiner told the employees about
the Company's vacation and holiday plan and also
stated that soon "the girls ... who were making
piecework would get ... better rates ... and more
money." According to Cromwell, this was the first
information she had that the Company planned to
increase wages. Cromwell's testimony was cor-
roborated in substantial measure by that of Cruz.
According to the latter, Weiner told them, inter
alia, that "the shop would probably close down and
wouldn't have any work from the customer in
Brockton if the Union got in."
roborated by Beatrice Cromwell when the latter was on the stand Con-
sequently , it is the conclusion of the Trial Examiner that notwithstanding
the discrepancy between the date Cruz gave in her affidavit and the one
which she gave in her oral testimony , her testimony as to the conversation
with Weiner is a substantially accurate account of what was said
Cruz had begun work in December 1968 at $1 60 an hour Later she
was put on piecework and given a base rate of $1 65 an hour
r Cruz testified that this raise was reflected in the paycheck which she
received the first week in July
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Weiner testified that the first announcement of a
new hourly rate was not made until June 27, the
day after the election , and that the increase was ef-
fective the first pay period in July . According to the
plant manager , on that date , nine of the employees
were notified of an increase in their base rate by a
notation made on their timecards . He denied that
any employees were notified of a specific change in
their hourly rate at any time prior to June 27. Ac-
cording to the plant manager , the Respondent an-
nounced the wage increases on the day after the
election , pursuant to a decision that was made
much earlier . He testified that the prospect of a
wage r4ise and a vacation and holiday plan were
disclosed to the employees in January.
Weiner 's testimony on this subject was lacking in
specifics and was not persuasive . The Respondent
offered no letters , notices , or memorandums to cor-
roborate the plant manager 's assertions that the
raises in question were first announced to the em-
ployees the preceding winter . Employee Theresa
Monte testified that in February , Weiner had
discussed these subjects in general with her and her
coworkers and had told them that although the
plant was nonunion "when his business got on its
feet ... he would give us all the benefits that other
factories had," and that there would also be im-
provements in wages and working conditions.
When questioned about any promises by the plant
manager on the prospects of paid holidays and a va-
cation plan , employee Monte stated that , during the
winter, Weiner " told us that we would receive paid
holidays and vacation pay like any other plant did,
but it took ten months before we ever got one." In
fact, the first holiday pay the employees received
was for May 30. This, of course , was after the
Union had made its demand for recognition. On the
basis of the foregoing evidence , the Trial Examiner
concludes and finds that prior to the organizational
campaign , Weiner had discussions with the em-
ployees on the subject of wages , holiday pay, and
vacations but any promises he made were very
general in character and totally lacking in particu-
lars as to the amounts involved and the dates when
such improvements would be effective.
Employees Cruz and Cromwell were credible wit-
nesses as to the foregoing incidents on the eve of
the election . On the basis of Cruz ' testimony, the
Trial Examiner concludes and finds that about June
23 Plant Manager Weiner told Cruz for the first
time that her base pay would be raised from $1.65
to $1.77. Further, on the basis of Cromwell's
testimony , the Trial Examiner concludes and finds
that in discussing his problems with the employees
on the day before the election , Weiner told his au-
dience that " the girls ... who were making
piecework would get ... better rates and more
money ." Finally , from the testimony of both of
these employees, the Trial Examiner concludes that
on the day prior to the election Weiner also told
the employees that if the Union won, it was likely
that the Company would not get any more work
from the customer in Brockton and that the "shop
would probably close down."
About June 24, the Respondent mailed a letter to
all its employees in which it appealed for a vote
against the Union in the forthcoming election.8 The
letter opened with the statement that the Union
constituted "a very serious threat to your jobs and
the continued successful operation of this com-
pany." Thereafter, the letter went on:
The union has been telling you that you have
everything to gain and nothing to lose by vot-
ing them in.
Nothing could be further from the truth. The fu-
ture of this company and your jobs could be at
stake in this election! ! !
After recounting the difficulties which the Com-
pany, as a contractor in the garment industry, had
to face, the letter stated that it would be unlikely
that the Company could get the type of business
necessary to give the employees the volume of
work they had been getting "if the union interfered
with our operation." The letter concluded its ap-
peal for a vote against the Union with the statement
"Don't let the union trouble makers ruin a good
thing for you ! !"
The General Counsel contends that the foregoing
letter impliedly threatened the employees with loss
of their jobs in the event of a union victory and, for
this reason, its dissemination by the Respondent
constituted a violation of Section 8(a)(1). This
contention is denied by the Respondent, according
to whom the letter constituted no more than an ex-
ercise in free speech which was fully protected by
the proviso of Section 8(c).
The appeal to the employees which the Company
made in the closing days of the election campaign
conveyed a very blunt hostility to the unionization
of its plant which, per se was probably within the
permissible limits of free speech. However, the
phrases in the letter which depicted the Union as "a
very serious threat to your jobs" and which stated
that "The future of this company and your jobs
could be at stake in this election ! ! !" must be
viewed in the light of the fact that during this very
period Plant Manager Weiner told some of the em-
ployees that "if the union got in ... we might have
to close" and that "the shop would probably close
down and wouldn't have any work from the
customer in Brockton if the union got in."
The courts have held that "an employer's 'pre-
diction' of untoward economic events may con-
stitute an illegal threat if it is within his power to
make the prediction come true." International
Union of Electrical, Radio and Machine Workers,
AFL-CIO [NECO Electrical Products Corp.] v.
N.L.R.B., 289 F.2d 757, 763 (C.A.D.C.). Another
court has stated "Conveyance of the employer's be-
lief, even though sincere , that unionization will or
8 The full text of this letter appears as Appendix A, attached hereto
BARNWELL SPORTSWEAR, INC. 107
may result in the closing of the plant is not a state-
ment of fact unless, which is most improbable, the
eventuality of closing is capable of proof." The
N.L.R.B. v. The Sinclair Company, 397 F.2d 157,
160 (C.A. 1), quoted and affirmed in N.L.R.B. v.
Gissel Packing Company, Inc., 395 U.S. 575,
618-619.8 Viewed against the background in which
the company letter reached the employees in the
period immediately prior to the election, its lan-
guage carried a threat of economic injury to the
employees, or could be so construed by them. For
this reason, the Trial Examiner concludes and finds
that by its publication the Respondent violated Sec-
tion 8(a)(1). Similarly, Plant Manager Weiner's
statements, quoted above, to the effect that the ad-
vent of the Union might, or could, result in closing
the plant, likewise constituted a violation of that
same section of the Act.
Whereas the Respondent may have planned a
wage increase for the employees several months
prior to the election, there is no evidence that the
amount, or the date, of such raises had ever been
disclosed prior to the week before the election.
During that week, as found earlier, Plant Manager
Weiner told employee Cruz that her base rate
would go from $1.65 to $1.77. Shortly thereafter,
and on the day before the election, he told the em-
ployees, as Cromwell testified, that the employees
"were going to get ... better rates and better pay."
These announcements to the employees at a time
when a question concerning representation was
pending were unlawful within the meaning of Sec-
tion 8(a)(1).1°
The questioning of the employees which Weiner
conducted immediately after the Union requested
recognition and in which interrogation he sought to
learn from Cruz, Cromwell, and Barros whether
they had signed union cards constituted a poll of
the employees which, under the circumstances
here, was unlawful." The Trial Examiner concludes
and finds that this interrogation by the plant
manager was coercive and a violation of Section
8(a)(1) of the Act.i2
Case 1-RC-10629
Subsequent to the election of June 26, 1969, the
Petitioner filed timely objections. After an in-
vestigation on September 15, the Regional Director
issued a Report on Objections wherein he found no
merit to various objections raised, but did conclude
that there was merit to certain objections which
were numbered 2 and 3. In accordance with this
conclusion, the Regional Director recommended to
the Board that the election be set aside and that a
new election be directed. Thereafter, in exceptions
to these conclusions, the Respondent requested
that the Board overrule the Regional Director and
sustain the validity of the election, or in the alterna-
tive, order a hearing on the issues raised by the ob-
jections. On November 12, the Regional Director
filed a request with the Board that Case
1-RC-10629 be remanded to the Regional Office
for consolidation with Case 1-CA-6860 and
thereafter for hearing on the issues raised by the
entire matter. On November 18, the Board ordered
that a hearing be held on the issues raised by the
Petitioner's Objections 2 and 3 and that such hear-
ing be consolidated with any hearing conducted in
Case 1-CA-6860.
Pursuant to the foregoing order, we now turn to a
consideration of the objections in question. They
read as follows:
Objection No. 2. The Employer threatened
employees with plant closing , loss of benefits
and loss of job security if the employees
elected Petitioner as their collective bargaining
agent.
Objection No. 3. The Employer promised
improved benefits and working conditions if
they rejected the Union as their bargaining
agent . The Employer also improved piece rates
of key employees to defeat the Union.
Earlier herein it was found that Plant Manager
Weiner told the employees that if the Union won
there would be less work, that there might be no
more orders from the Company's principal
customer and that the plant might have to close.
Moreover, it was likewise found that on the eve of
the election, Weiner announced that those who
were doing piecework would get better rates and
more money and that he told Diana Cruz, one of
the employees, that her base pay was about to be
raised from $1.65 an hour to $1.77. Finally, it was
found that the letter dated June 24 which the
Respondent mailed to all its employees before the
election, was coercive, and that its dissemination,
while a representation question was pending, con-
stituted interference, restraint, and coercion within
the meaning of Section 8(a)(1) of the Act.
The Trial Examiner concludes and finds that the
restraining and coercive effect of the above-
described conduct during the preelection period
precluded a free choice on the part of the em-
' See also N L R B v C J Pearson Co, 420 F 2d 695 ( C A 1), where
the court , construing Gissell, stated
We read the opinion in N L R B v Gissel! Packing Co as in-
dicating two ways in which an employer's predictions as to possible un-
happy consequences of unionization might transgress The prediction
might indicate that unnecessary consequences would be deliberately
inflicted by the employer , in other words , a threat of retaliation Alter-
natively, consequences not within the control of the employer might
be described as probable or likely, when in fact there was no objective
evidence of such likelihood This would not be a retaliatory threat, but
it would be an improper threat nevertheless
10 It is, of course, well established that a wage plan conceived, or ac-
celerated , to thwart an organizing campaign violates Section 8(a)(1) of
the Act N L R B v Exchange Parts Company, 375 U S 405, 409
11 See Struksnes Construction Co., Inc , 165 NLRB 1062
12 No such finding is made as to the exchange which Weiner had with em-
ployee Monte who testified that about this time Weiner asked if the Union
had been in touch with her and when she answered in the negative he did
not pursue the matter further
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees.13 Accordingly, the Trial Examiner will
recommend that Objections 2 and 3, as set forth
above, be sustained, and that the election held on
June 26, 1969, be set aside.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and
the Union is a labor organization, all within the
meaning of the Act.
2. By interfering with, restraining, and coercing
its employees in the exercise of the rights guaran-
teed in Section 7 of the Act, the Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
By such conduct in the period from May 22, 1969,
when the petition in Case 1-RC-10629 was filed,
until the election on June 26, 1969, the Respondent
prevented the holding of a free and fair election
among the employees.
3. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices, the Trial Examiner
will recommend that the Respondent be ordered to
cease and desist therefrom and to take certain affir-
mative action designed to effectuate the policies of
the Act.
Upon the basis of the foregoing findings of fact
and conclusions of law and the entire record in the
case , the Trial Examiner recommends, pursuant to
Section 10 (c) of the Act, issuance of the following:
ORDER
Barnwell Sportswear, Inc., its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating any employee concerning that
individual's union activity, or that of other em-
ployees, in a manner constituting a violation of Sec-
tion 8(a)(1) of the Act.
(b) Announcing wage increases to employees
during the pendency of a representation election
should such announcement interfere with the rights
of employees as set forth in Section 7 of the Na-
tional Labor Relations Act, as amended.
(c) Threatening its employees with loss of jobs
or closing of the plant if a majority become mem-
bers of, or assist, a labor organization.
(d) In any like or related manner interfering with,
restraining , or coercing its employees in the exer-
cise of their right to self-organization, to form, join,
or assist any labor organization, to bargain collec-
tively through representatives of their own choos-
ing, or to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid,
or to refrain from any or all such activities.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at its place of business in Bourne, Mas-
sachusetts, copies of the attached notice marked
"Appendix B."14 Copies of said notice, to be
furnished by the Regional Director for Region 1,
after being duly signed by an authorized representa-
tive, shall 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 by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 1, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.15
IT IS FURTHER RECOMMENDED in Case
1-RC-10629 that the election conducted on June
26, 1969, be set aside, and the representation
proceedings be remanded to the Regional Director
for Region 1 for the purpose of conducting a new
election at such time as he deems the circum-
stances permit the free choice of a bargaining
representative.
" In reaching this conclusion , the Trial Examiner has not considered any
of the incidents involved in Case 1-CA-6860 which occurred prior to May
22, 1969, when the representation petition was filed As counsel for the
Respondent points out in his brief, correctly, findings as to coercive or il-
legal activities prior to the date of such filing are irrelevant to the question
as to whether the election should be set aside The Ideal Electric and Manu-
facturing Company, 134 NLRB 1275, 1278
14 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations , and recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings, conclusions, and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board's Order is enforced by a Judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board " shall be changed to read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
's In the event that this recommended Order is 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 Respondent
has taken to comply herewith "
APPENDIX A
June 24, 1969
To All Employees of Barnwell Sportswear, Inc.
The International Ladies Garment Workers
union is a very serious threat to your jobs and
the continued successful operation of this com-
pany.
The union has been telling you that you have
everything to gain and nothing to lose by vot-
ing them in.
Nothing could be further from the truth. The
Future of this company and your jobs could be
at stake in this election!!!
BARNWELL SPORTSWEAR, INC. 109
This Company is in a very competitive busi-
ness . We are contractors in the garment busi-
ness and every penny counts in order for us to
get business and operate.
With unreasonably high rates and condi-
tions , we probably will not be able to get the
type of work we both need and we would be
pushed out of business in short order. You
could end up without Jobs . It is as plain and
simple as that.
Remember , all the union can do is ask the
company to give you additional wages and
benefits , but only the Company can actually
give you the improvements . And improvements
and increases can only come when a company
makes the necessary money to put into im-
proved benefits and conditions.
I do not believe that we could get the type of
business that would give you the decent work
that you now have , if the union interfered
with our operation.
High costs and inefficient practices have
spoiled many a good shop.
Don't vote for high costs , inefficiencies and
poor work.
Don't let the union trouble makers ruin a
good thing for you!!
Vote Right.
VOTE NO!!
Barnwell Sportswear, Inc.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate any employee con-
cerning that individual 's union activity , or that
of other employees, in a manner constituting a
violation of Section 8(a)(1) of the Act.
WE WILL NOT announce wage increases to
our employees during the pendency of a
representation election should such announce-
ment interfere with the rights of employees as
set forth in Section 7 of the National Labor
Relations Act, as amended.
WE WILL NOT threaten our employees with
loss of jobs or closing of the plant if a majority
become members of, or assist , a labor or-
ganization.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-or-
ganization , to form, join , or assist Local 361,
International Ladies' Garment Workers'
Union, AFL-CIO, or any other labor organiza-
tion , to bargain collectively through represen-
tatives of their own choosing , or engage in con-
certed activities for the purposes of collective
bargaining , or other mutual aid, or to refrain
from any or all such activities.
BARNWELL SPORTSWEAR,
INC.
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered , defaced , or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, 20th Floor, John F. Kennedy
Federal Building , Cambridge & New Sudbury
Streets, Boston , Massachusetts 02203, Telephone
617-223-3300.