Beaunit Corp.

National Labor Relations Board - Board Decisions

Aug 25, 1970

185 N.L.R.B. 100 (N.L.R.B. 1970)

100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Luxuray of New York Division of Beaunit Corpora-
tion and International Ladies' Garment Workers'
Union, AFL-CIO Case 3-CA-3830
August 25, 1970
DECISION AND ORDER
BY MEMBERS FANNING, MCCULLOCH, AND JENKINS
On March 16, 1970, Trial Examiner Paul E. Weil
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in certain unfair
labor practices and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision.
He also found that Respondent had not engaged
in certain other unfair labor practices alleged in the
complaint. Thereafter, the General Counsel, Charging
Party, and Respondent filed exceptions to the Trial
Examiner's Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations 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 here-
by affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts
the Trial Examiner's findings, conclusions, and recom-
mendations,' except as modified below.'
We agree with the Trial Examiner that the admitted
surveillance of a union meeting by Plant Manager
Shults and Supervisor Eele constituted a violation
of Section 8(a)(1) of the Act. However, contrary
to the Trial Examiner, and in agreement with the
General Counsel and the Charging Party, we believe
that it will effectuate the policies of the Act to issue
a remedial order herein. The Respondent has commit-
ted other and serious unfair labor practices, organiza-
tional activities continue at the Respondent's plant,
and we cannot be sure that, in these circumstances,
such surveillance will not again occur. Therefore,
' We affirm the Trial Examiner's conclusion that the Respondent
did not violate Sec 8(a)(1) of the Act by excluding union adherents
from certain employee meetings conducted by Respondent during working
hours In doing so, however, we do not agree with his finding, which
is inconsistent with his conclusion that the Act had not been violated,
that the Respondent, by excluding union adherents, had substantially
interfered with the rights of the employees
' Member McCulloch dissents from so much of the Decision as finds
that the showing of the film "And Women Must Weep" is a violation
of Sec 8(a)(1) of the Act
in order to assure the employees that their activities
will not again be subjected to such illegal observation
we shall direct the Respondent to cease and desist
therefrom.
The Trial Examiner found that the Respondent
violated Section 8(a)(1) of the Act by promulgating
a no-solicitation rule directed only at the prounion
employees and solely for the purpose of inhibiting
union organization. We do not agree.
The complaint issued by the General Counsel, in
pertinent part, alleged that the Respondent had
6...
(f) Instructed its employees not to discuss the
Union during working hours in the plant, not-
withstanding that it has permitted anti-union
discussion during working hours in the plant.
In support of this allegation the General Counsel
introduced evidence showing that Plant Manager
Shults, after receiving a telegram from the Union
in early March 1969 naming the members of the
Union's organizing committee, had called them into
his office individually and informed them that he
had received the telegram, that membership on the
organizing committee did not confer a privileged status
on them, that they were expected to do their work,
and that they were not to solicit for the Union
on company time.' Some, at least, of the members
of the organizing committee were apparently warned
that if they did not heed the warning disciplinary
action might result. In the ensuing organizational
campaign there was casual conversation concerning
the union on working time, and during nonworking
time the Union was freely discussed and union leaflets
distributed in the cafeteria, restrooms, rest areas, and
hallways. The General Counsel presented no evidence
that disciplinary action was taken against any employ-
ee, whether for or against the Union.
The vice in Respondent's conduct as alleged in
the complaint was the disparate enforcement of a
no-solicitation rule against the union adherents among
Respondent's employees. As noted above, the General
Counsel presented no evidence to support such an
allegation. The complaint clearly does not allege that
the Respondent promulgated a no-solicitation rule
only to the prounion employees, as found by the
Trial Examiner, and no such issue was litigated at
the hearing. We therefore find that the Respondent
did not violate Section 8(a)(1) of the Act by the
promulgation of an unlawful no-solicitation rule or
the disparate enforcement of such a rule.4
' The Trial Examiner found that the Respondent's prohibition against
solicitation applied to both company time and property The record
shows that it applied only to company time
' Because of our disposition of this allegation of the complaint we
find it unnecessary to pass on Respondent's Motion to Reopen Record
185 NLRB No. 15
LUXURAY OF NEW YORK
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the Recommended
Order of the Trial Examiner and hereby orders that
the Respondent, Luxuray of New York Division of
Beaunit Corporation, Fort Plain, New York, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's Recommended
Order,with the following modifications:
1. Delete paragraph 1(a) and substitute the
following:
"(a) Engaging in surveillance of the union activities
of its employees."
2. Delete the third paragraph of the "Appendix"
and substitute the following:
WE WILL NOT engage in surveillance of the
union activities of our employees.
in which it alleged that, given the opportunity to present evidence,
it could show that a valid rule against no-solicitation had been in existence
since July 27, 1966, and that all of its employees who were not members
of the Union's organizing committee had been warned by Sidney Foreman,
director of manufacturing of Respondent, in the same words used to
warn members of the organizing committee
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PAUL E. WEIL, Trial Examiner- The International Ladies'
Garment Workers' Union, AFL-CIO, herein called the
Union, on July 16, 1969, filed an original charge against
Luxuray of New York Division of Beaunit Corporation,
hereinafter called Respondent, and thereafter amended its
charge on July 28 and November 7, 1969. The General
Counsel of the National Labor Relations Board, by the
Regional Director for Region 3, thereafter issued a complaint
based on said charges, dated December 17, 1969, alleging,
inter aha, that Respondent violated Section 8(a)(1) by acts
of surveillance , threats to employees , discrimination against
members of the union organizing committee , showing the
movie "And Women Must Weep ," promising and granting
wage increases during the pendency of a question concerning
representation , instructing its employees not to discuss the
Union during their working hours while permitting antiun-
ion discussions , and refusing to hire an employee because
of her relationship to a member of the Union 's organizing
committee . The latter was also alleged to be a violation
of Section 8(a)(3) of the Act I By its duly filed answer
Respondent admitted jurisdictional and other facts but
denied the commission of any unfair labor practices On
the issues thus drawn the matter came on for hearing
before me in Johnstown , New York, on January 28 and
' An additional allegation connected with the discharge of an employee
alleged as a violation of Sec 8 (a)(1) and (3) of the Act was withdrawn
by the General Counsel at the commencement of the hearing
101
29, 1970. All parties were represented by counsel and
had an opportunity to call witnesses and adduce relevant
evidence. All parties waived oral argument at the close
of the hearing. A brief was received from the Respondent.
Upon the entire record of the case and2 in consideration
of the brief I make the following.
FINDINGS OF FACT
I JURISDICTIONAL FACTS
It is alleged and admitted that Respondent, a New York
corporation, operates a plant in the city of Fort Plain,
New York , where it manufactures women 's intimate apparel.
Annually Respondent sells its products in interstate com-
merce valued in excess of $50,000 Respondent is an employ-
er 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. Background
The Union commenced an organizing campaign among
the employees of Respondent in the early months of 1969.
One of the first organizing acts was a meeting held at
the home of one of the employees, Mrs. Coppernoll It
is alleged and admitted that Respondent's plant manager,
Shults, and its sewing room supervisor, Eele, drove to
the town of Canajohane where Mrs. Coppernoll's home
was located and parked their automobiles in a spot from
which they could look down the street on which Mrs.
Coppernoll's home was located. This they admittedly did
for the purpose of ascertaining who attended the meeting.
After sitting in their car for about 45 minutes they drove
around the block in an effort to identify the cars of any
employees that might have been parked near Mrs. Copper-
noll's house and then proceeded to their own homes.
Early in its organizing campaign the Union sent to
Respondent three telegrams informing Respondent of the
fact that 11 named employees were members of the Union's
organi7i-ig committee . Before the information was given
to the Employer it had conducted at least one meeting
of all employees at which Respondent apparently cam-
paigned against the Union Thereafter Respondent conduct-
ed a number of other meetings at one of which it showed
the movie "And Women Must Weep" to the assembled
employees On each of the latter meetings the employees
were sent from their work stations by their supervisors
except the members of the Union's organizing committee
and apparently a few other employees known or suspected
of being prounion , who were told to remain at their work.
' The General Counsel's unopposed motion to correct the record
is hereby granted
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A supervisor or supervisors were delegated to continue
supervising them dunng the meetings
Additionally the Employer by Plant Manager Shults
called each member of the Union's organizing committee
individually into his office and informed her that the tele-
gram bearing her name had been received and that she
was to understand that her membership on the organizing
committee resulted in no privileged status for her, that
she would be expected to do her work and that she was
not to solicit for the Union on company time and property.
At least some if not each of the members of the organizing
committee were warned that a breach of the Employer's
rules as set forth in the warning could result in disciplinary
action.
Employee Foland testified that before the telegrams were
sent out by the Union naming the members of the organizing
committee, a meeting of all employees was held by Respond-
ent which was addressed by Sidney Foreman, the director
of manufacturing of the Consumer Product Division of
Beaunit Corporation She testified that the meeting was
held in February and that Foreman and Manager Shults
were present. She quoted Foreman as saying that there
was no union in Franklin, Indiana, and there would be
no union here, that the Employer would close the doors
first before it would let a union come in. She quoted
him as saying "you girls were smart before when the
union tried to get in and I hope you will be smart now."
She also stated that Foreman said that unions can fine
you, they can break up your homes and they can cause
you to lose your friends
No other employee testified in corroboration of Foland's
story, which was denied by Foreman Employee Hall testi-
fied that she was present at all company meetings but
was not asked about the statements attributed to Foreman.
Foreman testified that he addressed a meeting in early
March at which the subject was, in essence, that there
are no privileged characters in the plant. Foreman also
testified that a meeting was held in late February by one
Tinklepaugh, another company executive, and that neither
he nor Tinklepaugh in their speeches made any statement
relating to closing down the plant.
When the movie "And Women Must Weep" was shown
the employees they were addressed by Foreman who stated
in effect that the incidents recorded in the movie were
factual but that the movie was acted by professional actors.
He pointed out that the town in which the incidents took
place was a small town similar to Fort Plain and that
what had happened there could happen at Fort Plain.
When the movie was shown a second time to the members
of the organizing committee and other employees who
had not seen it the first time, Foreman again addressed
the employees, apparently adding only something in the
nature of an apology that the union committee had not
been permitted to see it the first time and suggesting the
movie could change their minds.
On May 22 the Union, through its attorney, filed a
petition with the Third Region for an election at the Luxuray
Plant in Fort Plain A Decision and Direction of Election
issued July 1, 1969, and an amendment thereto August
26, 1969. The election was held on September 19, 1969,
and subsequently set aside by the Regional Director on
Petitioner's objection that the Employer did not supply
an election eligibility list, the so-called Excelsior list, either
to the Petitioner or to the Regional Director.The Regional
Director in his Supplemental Decision directed a second
election but it has not been conducted.
On September 19, 1969, company official Foreman made
a postelection speech at which he announced the results
of the election, thanked the employees and announced
that effective the following Monday, September 22, a wage
increase, a paid holiday and a retirement program would
be instituted and that the Employer would diligently pursue
a solution to the numerous problems that came to the
Respondent's attention during the "group discussion."'
B. Discussions With Regard to 8(a)(1)
Allegations
1. The General Counsel contends that the surveillance
of the union meeting at Canajohane, New York, by Manager
Shults and Supervisor Eele violated Section 8(a)(1) of the
Act Respondent admits the surveillance but contends that
inasmuch as it was neither repeated nor brought to the
attention of any employee it does not warrant issuance
of an order. To the extent that surveillance interferes with
the rights of employees there can be no question that
this interference was no different than that occasioned
by any other type of surveillance. On the other hand
the General Counsel adduced no evidence that any effect
resulted from the surveillance. So far as the record reveals
no employee was aware of it either at the time of its
occurrence or at any later time. There is no intimation
of coercion or restraint of employees; the interference with
their activities implicit in surveillance appears unlikely to
be repeated Accordingly I conclude that the surveillance
constitutes a violation of Section 8(a)(1) but does not warrant
the issuance of an order directed thereto.
2. With regard to the alleged threat by Foreman to
close down the plant in the event of successful organization,
I do not credit Miss Foland's testimony. It is apparent
to me that she has little or no recollection of the statements
made at the meeting. The only meeting conducted before
the arrival of the telegrams was that conducted by Tinkle-
paugh and it is highly improbable in my opinion that
either Tinklepaugh or Foreman would have made the general
statement that there was no union at the Franklin, Indiana,
plant since it is clear that there was a union at the Franklin,
Indiana plant. The failure of General Counsel to offer
anything in the form of corroboration of Miss Foland's
testimony, even though it is clear that other witnesses
called by him were present at the meeting, leaves me
to infer that no corroboration was available to him. I
cannot find that the statement attributed to Foreman was
made. I conclude that the General Counsel has not carved
its burden of proving a threat to close the plant by Sidney
Foreman. Accordingly I find no violation and recommend
the dismissal of paragraph 6(b) of the complaint, the allega-
tion that pertains thereto.
' No evidence was presented by the General Counsel with regard
to any group discussion
LUXURAY OF NEW YORK 103
3. The General Counsel contends that employees who
were members of the union organizing committee or suspect-
ed of having union sympathies were discriminated against
by being required to work while other employees attended
general meetings conducted by Respondent during working
hours. With the exception of the showing of the film
"And Women Must Weep" the record is very sparse as
to the content of the general meetings from which the
union organizing committee members were barred except
that the record contains some hearsay evidence to the
effect that the meetings concerned the Union With regard
to the meeting at which the movie was shown the General
Counsel contends that the showing of the movie constitutes
a threat to the employees physical and economic security.
Accordingly he can scarcely be heard to contend that
failing to show it to certain individuals was discriminatory.
At any rate Respondent thereafter did show the movie
to these employees at a later time. There can be no doubt
that by its action Respondent set apart the prounion employ-
ees in the plant but I question whether this constitutes
a violation , the Union already accomplished this purpose
by naming most of these employees in its telegrams. There
is no showing that these employees were deprived of any
benefits by being required to remain at their work stations
while the other employees were subjected to the Employer's
campaign propaganda.
I can scarcely see the Employer 's action in this regard
as constituting discrimination against the prounion employ-
ees. Nonetheless , I view the Employer 's action as a substan-
tial interference with the rights of the employees and particu-
larly the employees who were not yet committed to the
Union The only information that the record reveals as
to what took place in the four or five meetings other
than that at which the movie was shown is to be found
in the speech immediately after the election at which the
Employer announced the granting of various benefits. Fore-
man stated "because of our group discussions, I am aware
of the numerous problems that need to be solved and
I can assure you we will diligently pursue a solution to
these problems ." It would appear therefrom that the meet-
ings held with employees contained at least in part an
exploration of the complaints of the employees which led
to the inception of the union organization . By eliminating
known union supporters Respondent did its best to inhibit
the free play of discussion . Respondent also, to the extent
that it took positions with regard to the campaign issues,
made it impossible for the Union to know or to answer
such positions. This is not the situation where the Respond-
ent was directing itself to any selection of employees, the
only selectivity evidenced was the elimination at the meetings
of any union supporters . No explanation appears on the
record for Respondent 's action but it appears to me a
safe assumption that Respondent was motivated primarily
by desire to avoid giving union adherents an opportunity
to respond to Respondent 's comments on the election issues.
However the Board has held that neither labor organizations
nor employees are entitled to use any particular medium
of communication simply because the Employer uses it.
The Employer here was under no statutory obligation to
accord employees an opportunity to speak . Union adherents
had access to employees by the traditional means both
in the plant and outside of the plant and such access
was exercised by them without apparent inhibition. By
barring union adherents from the meetings Respondent
did not in my opinion violate the Act . I shall recommend
that the complaint insofar as it alleges a violation therein
be dismissed.`
4. General Counsel complains that by showing the movie
"And Women Must Weep" Respondent violated Section
8(a)(1) of the Act. The Board has held that shown against
a background of demonstrated antiunion animus the film
"And Women Must Weep " violates Section 8(a)(1) of the
Act Here Respondent not only showed the movie but
in its remarks to the employees prior to the showing told
them that it was a "true" story , although acted by profession-
al actors, and admonished the employees that the small
town in Indiana which was depicted in the movie was
little different from the small town in New York in which
the employees lived and that what happened in Indiana
could happen in New York . In support of his argument
that the Employer 's antiunion animus is demonstrated,
General Counsel put in evidence a number of propaganda
leaflets which were either distributed or mailed to employees
or were attached to their paychecks . The General Counsel
does not contend that any particular item among them
violates Section 8(a)(1) but merely that they demonstrate
the Employer 's antiunion attitude as they surely do. The
refrain that runs through them all is that with which
any practitioner in the field of labor relations must be
familiar ; that a union can do the employees no good,
that a union can achieve benefits for the employees only
by strike and that strikes mean that strikers will be replaced
and will have empty pockets There can be no real issue
in the instant case that the Employer 's preference is to
do without the Union , and the Employer 's acts throughout
the campaign certainly demonstrate this attitude to the
employees . Against this background the showing of the
film "And Women Must Weep" is violative of Section
8(a)(1) of the Act and I so find '
5. General Counsel alleges that the promise and grant
of wage increases and other economic benefits on September
19, which became effective on September 22, violated Section
8(a)(1) of the Act.
It has long been held that an employer violates the
the Act by announcing a wage increase during the existence
of a question concerning representation , and that such
announcement or grant of wage increases interferes with
the Board 's election procedures and makes a fair election
impossible.' It is of no avail to the Respondent in the
instant case that the speech in which the increases were
announced took place after the election . The question con-
cerning representation was not resolved by that election.
The election was set aside by the Regional Director on
the ground that Respondent had not supplied the Excelsior
' Hicks Ponder Co, 168 NLRB No 103
' Southw,re Company, 159 NLRB 395, Southw,re Company, 164 NLRB
1018, Kellwood Company, Ottenheimer Division, 178 NLRB No 8 1
do not agree with Respondent 's characterization of the rationale of the
Board or Chairman McCulloch, but no point would be served by entering
into a discussion thereof
Triangle Plastics, 166 NLRB No 86
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
list required by the Board's order prior to the election
Respondent must be held to have known that the election
could be set aside because of its failure to supply the
Excelsior list He was so informed in the order requiring
him to supply the list. Accordingly when Respondent
announced on September 19 that the wage increase,
°tirement program and additional paid holiday were
granted the employees effective the following week, the
Employer must be considered to have deliberately
announced these benefits in order to interfere with the
election that the Employer had every reason to believe
would be rerun because of its own failure to supply the
Excelsior list Respondent gave no reason why the
announcement could not have been withheld until the
objections had been ruled upon.' It is clear that the
announcement was an attempt to assure a continued
majority against union representatiu,, if a second election
were directed. I find that the announcement and the wage
increase that followed it were violative of Section 8(a)(1) of
the Act as alleged 8
6. Finally, General Counsel contends that by instructing
the members of the Union's organizing committee not to
discuss the Union during working hours in the plant while
permitting antiunion discussions during working hours in
the plant the Respondent violated Section 8(a)(1) of the
Act. There is no evicence that prior to the advent of
the Union any rule against solicitation or talking among
employees had been promulgated other than a general under-
standing on behalf of both employees and supervisors that
conversations that interfered with employees' production
were not permitted. There is no evidence that a broad
prohibition was instituted at any time. There can be no
question that the rule was promulgated only to inhibit
the organizing activities of the members of the organizing
committee. The Board has held in the past that the promul-
gation of such a rule, even though the rule was presumptively
valid in its breadth, where, as here, the prohibition extended
only to union activities on the Employer's time in the
plant, is violative where it is obviously promulgated solely
to inhibit union solicitation. There is no evidence that
the rule was ever implemented in any way. On the other
hand there is no evidence that any occasion for its implemen-
tation arose. The witnesses who testified with regard to
the rule all appeared to believe that the rule applied only
to "discussions" with regard to the Union and it appeared
quite obvious that the term discussion meant to them
something other than a casual mention of the Union. There
is no evidence on the record that the Union was discussed
in anything but a casual manner in the plant on working
time However the vice of the rule as I see it is that
it operated to inhibit union discussions by the union-oriented
employees. There is no evidence that the existence of the
rule was even mentioned to employees other than the
Union's bargaining committee. I find that the no-solicitation
rule, promulgated only to the prounion employees and
' The Regional Director did not reach the issues raised by the Union's
other objections
' Evchange Partc Co 375 US 405, Bally Case and Cooler, 172
NLRB No 106
solely for the purpose of inhibiting the union organization,
violated Section 8(a)(1) of the Act.'
C. The Alleged Discrimination
General Counsel complains that by failing to hire
Angelina Kretser, an applicant for employment,
Respondent discriminated against her because o. her
relationship to member of the Union's organizing
committee, thereby violating Section 8(a)(3) and (1) of the
Act. There is no real factual issue regarding Mrs Kretser',,
situation. She was brought to the plant in mid-March
during the organizing campaign by her cousin Mrs Beverly
Cotton, a member of Union's organizing committee Mrs
Kretser filled out an application and was interviewed by
Fannie Volpe, the supervisor of the training section Miss
Volpe left her and returned shortly telling her that the
training section was full and they would call her According
to the testimony of Volpe, after interviewing Mrs Kretser
she determined that she would like to have her and sought
permission from Plant Manager Shults to put her in the
training section although the training section was already
filled. Shults had just received instructions from the
Employer's main offices to cease hiring and training
employees for the present and so informed Miss Volpe at
this time. Volpe thereupon told Mrs. Kretser that the
training section was filled and that she would call her It is
admitted that up until this time the plant was advertising for
employees There is no evidence that after this time and
until May when the plant again started building up
personnel, any advertisements for employees appeared. Nor
is there any evidence that from mid-March until the May
buildup began,10 Respondent hired any employees.
Volpe and Shults both admit knowing that Mrs. Kretser
was related to Miss Cotton and that Miss Cotton was
a member of the organizing committee. Both denied that
this had anything to do with the decision not to hire
her. In view of the fact that it appears that the hiring
at Respondent's plant ceased abruptly at the time of Mrs.
Kretser's appearance there, and did not resume for a period
of almost 2 months and in the light of Respondent's evidence
that its inventory was in such condition that a slowdown
in the manufacturing process was necessary and was ordered
by the main office, I cannot determine on this record
that Mrs. Kretser was the victim of any discrimination.
Nor can I find discrimination in the fact that when Respond-
ent resumed hiring it did not call Mrs. Kretser. Miss
Volpe, in whom the entire hiring process was at this time
centralized, testified without contradiction that at no time
did she ever go back through applications she had received
and call people to come to work, even when she needed
' WerthanBagCorp of Nashville, 167 NLRB No 3, VikingofMi nneapo-
lis, 171 NLRB No 7 1 see no evidence of disparate application of
the rule in the incidents involving employees from the Indiana plant
it is clear from the testimony of General Counsel 's witnesses that the
remarks of the women from Indiana no more amounted to a "discussion"
within the parties' apparent understanding of the rule than did passing
statements and remarks by the prounion employees
10 Respondent received a very substantial contract from Sears, Roebuck
and Company, one of its best customers , pursuant to which work com-
menced in May
LUXURAY OF NEW YORK 105
employees Her testimony was that sufficient employees
generally made their way to the plant and filed new applica-
tions to keep her training unit filled and satisfy the Employ-
er's needs for new employees. Accordingly I shall recom-
mend that the complaint be dismissed insofar as it alleges
a violation of Section 8(a)(3) and (1) in the failure of
the Employer to hire Mrs. Kretser.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above occurring in connection with Respondent's operations
described in section I, above, have a close, intimate, and
substantial relationship 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.
Upon the foregoing findings of fact and upon the entire
record I make the following:
CONCLUSIONS OF LAW
I At all times material herein Respondent has been
engaged in commerce as an employer within the meaning
of Section 2(6) and (7) of the Act.
2. At all times material herein International Ladies' Gar-
ment Workers' Union, AFL-CIO, has been a labor organiza-
tion within the meaning of Section 2(5) of the Act
3. By various acts and conduct spelled out above including
surveillance of the union activities of its employees, showing
the movie "And Women Must Weep ," granting wage
increases and other economic benefits during the existence
of a question concerning representation and the promulga-
tion of a rule prohibiting union adherents from discussing
the Union during working hours, Respondent has interfered
with, restrained, and coerced its employees in violation
of Section 8(a)(1) of the Act
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices violative of Section 8(a)(1) of the Act, I
shall recommend that it cease and desist therefrom and
take certain affirmative action designed to effectuate the
policies of the Act. The Charging Party stated that it
would contend that under the circumstances of this case
an order requiring Respondent to recognize and bargain
with the Charging Party is required. No brief was received
from the Charging Party, and the record does not explicate
its position This argument must necessarily be based on
two considerations, (1) that by its unfair labor practices
Respondent has made it impossible to conduct a fair election
among the employees and (2) that the Union has at some
time achieved a majority among the employees In support
of its motion Respondent's counsel attempted to introduce,
without authentication, 90 documents described as authori-
zation cards which bear date stamps indicating that they
were received by the National Labor Relations Board either
prior to the filing of the petition or on August 12, 1969.
The formal documents in the representation case, which
I have before me, reveal that Respondent questioned the
validity of the cards submitted with the petition on the
ground that a certain portion of them were secured by
an employee found by the Regional Director to be a supervi-
sor. Thereafter it appears from the same source that the
Union caused additional cards to be signed by the employees
and those are the second group of cards proffered by
the Charging Party in the instant hearing. There was at
no time any attempt by anyone to authenticate the individual
signatures on any cards They are offered simply as docu-
ments found in the Board's files and bearing the Board's
date stamp. I need not determine whether the activities
of Respondent found to be violative herein constitute unfair
labor practices of such magnitude and effectiveness that
they have made the holding of a fair election unlikely
or have undermined the Union's majority. The election
was not set aside as the result of an unfair labor practice
but rather as a result of the Employer's failure to furnish
the Excelsior list. But in the absence of any evidence that
the Union at any time represented an uncoerced majority
of the employees I can see no warrant for applying the
remedy apparently sought by the Union. It is not my
understanding of the decision of the Supreme Court in
Gissel Packing Co., Inc., et al., 395 U.S. 575, that a bargain-
ing order is applicable in the situation where there is
no showing that the Union has ever represented a majority.
Accordingly I shall decline to recommend such an order
in the instant case
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of
the Act, I issue the following:
RECOMMENDED ORDER
Respondent Luxuray of New York Division of Beaunit
Corporation, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Promulgating any illegal rule forbidding union solicita-
tion by union adherents in the plant.
(b) Granting improved benefits, wage increases and paid
holidays to its employees in order to interfere with their
choice of bargaining representative or as an inducement
to reject or refrain from activities in support of the Union
(c) Showing the movie "And Women Must Weep" to
its employees.
(d) In any like or similar manner interfering with, restrain-
ing, or coercing its employees in the exercise of their
right to self-organization, to form, join, or assist the Union,
or any other labor organization, to bargain collectively
through representatives of their own choosing and to engage
in concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection or to refrain therefrom.
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act:
(a) Post at its plant in Fort Plain, New York, copies
of the attached notice marked "Appendix."" Copies of
11 In the event no exceptions are filed as provided by Sec 102 46
of the Rules and Regulations of the National Labor Relations Board,
the findings, conclusions, recommendations, and Recommended Order
(cont'd)
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said notice , on forms provided by the Regional Director
for Region 3, after being duly signed by Respondent's
authorized representative , shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60 consecu-
tive days thereafter , in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by it to insure that said
notices are not altered , defaced , or covered by any other
material.
(b) Notify the Regional Director for Region 3, in writing,
within 20 days from the receipt of this Decision, what
steps have been taken to comply herewith.12
IT IS FURTHER RECOMMENDED that the complaint is
dismissed insofar as it alleges unfair labor practices not
hereinabove found
herein shall , as provided in Sec 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 National 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 "
" In the event that this Recommended Order is adopted by the
Board this provision shall be modified to read " Notify the Regional
Director for Region 3, in writing, within 10 days from the date of
this Order , what steps Respondent has taken to comply herewith "
APPENDIX
behalf of International Ladies' Garment Workers'
Union, AFL-CIO, or any other union or to induce
our employees to withhold support from the Union.
WE WILL NOT show the movie "And Women Must
Weep" to our employees.
WE WILL NOT make any rules requiring union adher-
ents to avoid discussing the Union with other employees
in such a manner as to interfere with , restrain, or
coerce our employees in the exercise of their rights
of self-organization.
WE WILL NOT in any other like or similar manner
interfere with, restrain , or coerce our employees in
the exercise of their rights to join or assist unions
or to bargain collectively through representatives of
their own choosing or to engage in other concerted
activities for their mutual aid or protection.
LUXURAY OF NEW YORK
DIVISION OF BEAUNIT
CORPORATION
(Employer)
Dated By
(Representative)
(Title)
This is an official notice and must not be defaced by
anyone.
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT change wages or pension benefits,
grant additional paid holidays , or effect other changes
in terms or conditions of employment for the purpose
of interfering with the activities of our employees on
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.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board 's Office, Fourth
Floor, The 120 Building, 120 Delaware Avenue, Buffalo,
New York 14202, Telephone 716-842-3100.