Mohawk Bedding Co., Inc.

National Labor Relations Board - Board Decisions

Jan 13, 1975

216 N.L.R.B. 126 (N.L.R.B. 1975)

126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mohawk Bedding Co., Inc. and Textile Workers of
America, AFL-CIO. Case 3-CA-4930
January 13, 1975
DECISION, ORDER, AND ORDER
REMANDING FOR FURTHER FINDINGS
AND CONCLUSIONS
BY ACTING CHAIRMAN FANNING AND
MEMBERS JENKINS AND PENELLO
On June 14, 1974, Administrative Law Judge
Thomas F. Maher issued the attached Decision in
this proceeding. Thereafter, Respondent and the
General Counsel filed exceptions 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
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
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt the recommended Order, as modified
herein.
1. We agree with the Administrative Law Judge's
conclusions that Respondent has violated Section
8(a)(1) of the Act by virtue of its actions in having
delivered a speech to its employees and distributing
various pieces of antiunion literature to them, the
effect of which was to threaten them with economic
reprisals if they voted for the Union.
2. We also agree with the Administrative Law
Judge that Respondent unlawfully interrogated
employees Mathews and LaCombe and created the
impression of surveillance during conversations
between these two men and its operations manager,
and that by these actions Respondent has further
violated Section 8(a)(1) of the Act.
3. We are, however, remanding the case to the
Administrative Law Judge for findings and conclu-
sions with respect to the charge that Respondent
violated Section 8(a)(5) of the Act. The Administra-
tive Law Judge refused to make findings and
conclusions with respect to that charge on the
grounds that the Acting Regional Director's action in
approving the withdrawal of the petition in Case
3-RC-5414 was ultra vires insofar as it had the effect
of nullifying the Board's Direction of a Second
Election. Having concluded that the Acting Regional
Director's approval of the withdrawal of the petition
was of no force and effect, he found the Board's
Direction of Second Election remained in force and
he had no power to determine the 8(a)(5) issue.'
The approval of the withdrawal of the petition by
the Acting Regional Director is fully within his
authority under long-established Board precedent.
The charge that Respondent violated Section 8(a)(5)
of the Act by refusing to bargain with the Union was
therefore properly before the Administrative Law
Judge. Accordingly, we hereby remand the case to
him to make the appropriate findings and conclu-
sions.
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, as
modified herein, and hereby orders that the Respon-
dent, Mohawk Bedding Co., Inc., Utica, New York,
its officers, agents, successors , and assigns, shall take
the action set forth in said recommended Order.
IT IS FURTHER ORDERED that the above-entitled
proceeding be, and it hereby is, remanded to
Administrative Law Judge Thomas F. Maher, for the
purpose of making findings and conclusions based
on the allegations in the complaint that Respondent
violated Section 8(a)(5) by refusing to bargain with
the Union.
I This case is unusual in that the unfair labor practice charges should
have initially prevented the further processing of the representation case
pursuant to the Board 's longstanding policy. E.g., Carson Pine Scott &
Company, 69 NLRB 935-938 ( 1946).
It is the usual policy of the Board to process such charges before or
concurrently with related administrative determinations so as to provide the
parties the full benefit of a substantive hearing in which to litigate important
rights guaranteed by the Act which might preclude the possibility of holding
a fair election . However, in this case , the Board was unaware of the
existence of the charges until after a decision had issued on the objections.
DECISION
STATEMENT OF THE CASE
THOMAS F. MAHER, Administrative Law Judge: Upon a
charge filed on May 31, 1972, by Textile Workers Union of
America, AFL-CIO, herein called the Union, the Regional
Director for Region 3 of the National Labor Relations
Board, herein called the Board , on February 4, 1974, issued
a complaint against Mohawk Bedding Co., Inc., Respon-
dent herein , on behalf of the General Counsel of the
Board , alleging violations of Section 8(a)(1) and (5) of the
National Labor Relations Act, as amended (29 U.S.C., Sec.
151, et seq.), herein called the Act. In its duly filed answer
Respondent, while admitting certain allegations of the
complaint , denied the commission of any unfair labor
practice.
Pursuant to notice a trial was held before me in Utica,
New York. All parties were present , represented and
afforded full opportunity to be heard, called, examine, and
cross-examine witnesses, present oral argument and file
briefs. Briefs were filed with me by Respondent and
General Counsel on April 22, 1974.
In addition to the foregoing procedural steps taken in the
216 NLRB No. 20
MOHAWK BEDDING CO., INC. 127
instant case there was introduced into evidence by
stipulation at the trial and incorporated into this case the
transcript of heanng, pleadings, reports of the Regional
Director and of a duly appointed Hearing Officer
respectively, and a decision of the Board in Case
3-RC-5414,1 being a representation proceeding involving
the employees of Respondent and the Charging Union
herein , and comprising the identical subject matter of the
complaint issued herein on February 4, 1974. For the
purpose of properly stating the entire case at issue the
following procedural steps in Case 3-RC-5414 are set
forth:
A representation petition was filed on April 10, 1972, by
the Charging Union herein. Thereafter, pursuant to a
Stipulation for Certification Upon Consent Election, duly
approved, an election was held on April 27, 1972, among
Respondent's 25 eligible voters. By a vote of 16 to 9 the
employees rejected the Union as their bargaining repre-
sentative . Thereafter, upon objections duly filed by the
Union, a Report on Objections was issued by the Acting
Regional Director on July 10, 1972, wherein it was found
that the objections did not raise substantial or material
issues with respect to the election, and it was recommended
to the Board that they be overruled and that the results of
the election be certified. Upon exceptions to the report
taken by the Union the Board overruled the Acting
Regional Director, and found that issues had been raised
with respect to statements made by Respondent's foreman
that could best be resolved by a hearing; it reserved
decision upon other objections. At the hearing, thereafter
held before a duly appointed Hearing Officer, evidence
was taken and on February 20, 1973, there issued a Report
of Hearing Officer on Objections to Election in which it
was recommended to the Board that upon the record made
the Union's objections be overruled. Upon exception taken
to the Board by the Union and full consideration of the
case , the Board, on June 20, 1973, decided (one member
dissenting) and ordered that the election be set aside and
directed the holding of a second election.
The complaint was issued in this matter on February 4,
1974, alleging therein the identical subject matter consid-
ered by the Board in its decision. Thereafter, on February
8, 1974, counsel for the General Counsel issued a notice of
intention to amend complaint, the subject of which was to
add the following subparagraphs to paragraph VI of the
complaint:
Respondent, by its supervisor and agent, Howard T. B.
Turner, on or about April 5, 1972, in Turner's office,
interrogated its employees as to their employees' union
sympathies, activities or desires.
Respondent, by its supervisor and agent, Howard T. B.
Turner on or about April 5, 1972, in Turner's office,
created the impression among its employees that it was
keeping the employees' union activities under surveil-
lance
On February 22, 1974, the Acting Regional Director
communicated to Respondent herein his disposition of
Case 3-RC-5414, previously decided by the Board (supra),
as follows:
This is to advise that the petition in the above case
has, with my approval, been withdrawn as of February
22, 1974. However, complaint having issued in Case
No. 3-CA-4930 in which a bargaining order will be
sought, the petition is subject to reinstatement upon
appropriate application after disposition of the unfair
labor practice charge referred to herein. [Emphasis
added.]
Upon consideration of the entire record in this matter,
including the entire record and briefs as well as the reports,
and recommendations to the Board of the Regional
Director, Acting Regional Director, and the hearing
officer, respectively, and the decision of the Board in Case
3-RC-5414, I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE NATURE OF RESPONDENT' S BUSINESS
It has already been found by the Board that the
Respondent herein is an employer engaged in commerce
within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Board has already found the Charging Union to be a
labor organization within the meaning of Section 2(4) and
(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Findings and Conclusions of the Board
As set forth in its decision in Case 3-RC-5414 and
reported at 204 NLRB 277, the following constitutes the
findings and conclusions of the Board applicable to the
issues involved herein: 2
5. The Board has considered the Acting Regional
Director 's Report on Objections , the Report of Hearing
Officer on Objections to Election , and the Petitioner's
exceptions and briefs and finds merit in the Petitioner's
exceptions.
On April 20 , 19721 shortly after the Union filed its
petition , the Employer began an antiunion campaign
by posting a bulletin promising the employees the
"TRUE FACTS." Thereafter , the Employer issued a
series of letters and speeches which , taken cumulative-
ly, conveyed a threat of adverse economic conse-
quences as the inevitable result of the employees'
selection of the Union as their bargaining representa-
tive . In the first letter dated May 2 , the Employer
stated:
The complaint was accordingly amended at the opening of
the trial herein.
1 204 NLRB 277 (1973)
2 A copy of the Board 's Decision and the attachments thereto have been
incorporated into this Decision and are attached hereto as Appendix A
[Omitted from publication ]
I [All dates are in 1972, unless otherwise indicated]
You will recall that before we took over this plant,
it was operated by Foster Brothers. Foster Broth-
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ers was organized by the Steel Workers... .
FOSTER BROTHERS WENT OUT OF BUSI-
NESS AND ALL THE EMPLOYEES LOST
THEIR JOBS.
On or about May 5 , the Employer issued a second
letter wherein it took up the subject of job security,
which was to become the theme of its entire campaign.
The letter in pertinent part stated:
The unemployment rate in the Utica-Rome Area
in February , 1972 was 10.3%-13,600 PEOPLE
OUT OF WORK . This unemployment rate was
one of the highest in the United States. It
included many employees who used to work in
unionized shops and had to pay substantial union
dues to hold their jobs . WHAT SECURITY DID
THESE PEOPLE GET FROM THEIR UN-
IONS? ... The recent bitter strike at the Divine
Company right here in town is just one example
of union IN-security.
Between 1955 and 1971 , TWUA lost about 86,000
members or 42% of its total membership. Much
of this loss was due to the closing or moving of
companies organized by TWUA.
Again picking up the theme of job security, a May 9
letter stated:
Look at the THOUSANDS of dues-paying
workers who lost their jobs in recent years when
their unionized employers closed down or left this
area. Many of you used to work for such
companies. You know from experience that the
former employees of these companies gained
absolutely nothing from all the money they were
required to pay over to the unions.
In its final letter , dated May 12 , the Employer stated:
We hope you have not been misled by the Union.
Your jobs , earnings , and benefits depend solely
on your Company 's ability to remain in business
in this area . Judging by the experience of those
other companies , [referring to five other local
companies in the same industry that had closed
down or moved after being unionized ] there is
considerable reason to wonder whether or not
unionization of Mohawk Bedding would hurt our
ability to survive.
Would it be sensible for you in these days of mass
unemployment and inflation to take the gamble
and pay union dues to boot : We think not.
In addition to the foregoing , a representative of the
Employer in a captive audience speech on May 16, the
day before the election, informed the employees that in
order to protect their jobs they must not vote for the
Union . He reiterated the implied theme of the prior
publications that the plant would close if the Union
were voted in.
In the aforementioned speech , having spoken of the
past history of local plants that moved from the area
after being organized by this Union, the speaker again
reminded the employees of the high local unemploy-
ment situation . Then, couched in the language of a
disclaimer, he underscored the threat by saying:
Well, I don't want to threaten you, but its very
important for you to understand something. If the
Union wins the election tomorrow, and if in
bargaining with us they really try to make good
on the fantastic figures mentioned in the leaflets,
then we could all be in for serious trouble. I
repeat, this is not a threat, its just a realistic
opinion. A company can remain in business,
especially this business, only if it is competitive.
We can remain competitive only if we can keep
our selling prices and our local costs fairly well in
line. If our labor costs ever get out of hand,
whether on account of having a Union or for any
other reason, and if our ability to run this plant
was crippled by the kind of unreasonable work
restrictions and rules you find in some Union
contracts, then, under those circumstances, there
would be a question as to whether this company
could remain in business here . I repeat, I am not
threatening to close this plant if the Union wins
the election and for that reason. I am saying that,
if the Union in bargaining really tries to deliver
on its fantastic promises , it could well create a
serious problem for the future of this operation.
Many unionized plants in this area have had
trouble under the Union and I cannot assure you
that Mohawk Bedding would be an exception.
* w s s s
Additionally we note that approximately 6 weeks
before the election , Shipping Room Foreman Lazarek
and employee Mathews had engaged in a conversation
in the plant where Lazarek stated that ". . . if the
Union had come in, Mr. Ginsburg had planned to close
the corporation in Utica." The record further shows
that sometime prior to the election, in answer to
inquiries from two employees whether the plant could
be turned into a warehouse if the Union got in,
manufacturing Manager Bernson replied in the affirm-
ative.2
2 Contrary to the Hearing Officer, we find that these statements,
taken in the context of the entire campaign , do add to the overall
picture presented to the employees by the Employer which amounted
to a threat of closing the plant if the Union won the election, and
therefore do not find them "isolated" as first characterized by the
Acting Regional Director.
B. The Additional Facts Adduced
In addition to the facts established in the Board's
Decision, as quoted above , certain other incidents were
brought forth by counsel for the General Counsel in
support of the amendments to the complaint made at the
opening of the trial.
On or about April 5 , 1972, Oswald Anania , the Union's
international representative , began the organizing drive
among Respondent 's employees . On the sidewalk adjacent
to the main entrance to the plant and on a direct route to
the parking area he engaged several employees , including
Lawrence LaCombe and William Mathews, in conversa-
tion regarding working conditions in the plant and
suggested that they assemble other employees in the plant
MOHAWK BEDDING CO., INC. 129
parking lot at 4:30 p.m. at the conclusion of the shift. As
Anania was talking with these employees Howard Turner,
Respondent's operations manager, walked past the group,
stopped and turned, and faced them for what was
estimated by Mathews and LaCombe to be several
minutes.3 Upon his return from lunch later in the
afternoon Turner sent for Mathews and had a conversation
with him in his office which he commenced by asking the
identity of the man with whom the employees were talking
as he was leaving the plant. When Mathews replied that he
was a union representative Turner asked him which union
he was from. Mathews replied that it was the Textile
Workers. Turner then asked if Mathews felt he needed a
union and he replied that he needed a union and that he
did not call the union representative. Turner then asked
who did call him and Mathews replied that Anania had not
informed him. Turner concluded the conversation by
telling Mathews he was upset to see a union representative
at the plant. Mathews testified that he does not recall
having ever previously been summoned to Turner's office.
Shortly thereafter employee Lawrence LaCombe was
summoned to Turner's office and Turner asked him "who
the guy was." When LaCombe replied that he did not
know Turner then asked him "what the guy talked about."
LaCombe told him that it was personal . This appears to
have concluded the conversation. An hour and a half later
a supervisor, Arnold Bernson , told LaCombe that Turner
would like to see him. This time Turner stated to LaCombe
that he knew that "the guy downstairs was a union leader
and he knew that there was going to be a meeting in the
parking lot at 4:30." Prior to these two sessions in Turner's
office LaCombe testified that he had never before been
called to the office.
The foregoing findings are based upon the credited
testimony of employees Mathews and LaCombe. As
previously indicated (fn. 3) I do not credit Turner. Thus, I
do not accept his account of his interview with Mathews
wherein he would confine the conversation to asking the
identity of Anania. Neither would I accept his denial that
he had any conversation in his office with LaCombe. This
denial was itself so vacillating that in my judgment it
discolors the rest of Turner's testimony. Thus, when asked
on direct examination if he called LaCombe to his office
Turner first digressed to state it was not unusual to call
employees to his office, and then categorically denied that
he had summoned LaCombe on this occasion. Thereafter,
on cross-examination, Turner testified that he could have
called LaCombe to his office, but that he didn't recall
having done so, "but it's possible."
With such a manifestation of uncertainty, understand-
able with incidents occurring two years previously, and
incidents with which Turner was no longer concerned,4 I
am persuaded that this same uncertainty permeated his
whole recollection of the events of April 5, 1972. I
accordingly do not credit Turner's denial of statements and
conduct attributed to him by witnesses whom I consider to
be credible.
C. Analysis and Conclusions
It is apparent that the General Counsel seeks reconsider-
ation of a case already decided by the Board in 204 NLRB
277. Thus, in his brief to me the record evidence in that
case is discussed as if no findings had ever been made with
respect to it. What he appears to be seeking, by readjusting
the frame work of the case , is to include two additional
incidents not previously presented to the Board, with a
view to securing as a substitute for the ordered election an
instant recognition by means of union authorization cards.
For reasons which are apparent, I have made no findings
with respect to the cards submitted for this purpose.
1. Interference, restraint, and coercion
The Board itself has already considered this case and its
decision has been arrived at only after several separate
investigations, a hearing, and recommendations made to it
by the Acting Regional Director and a Hearing Officer,
respectively. Upon these facts the Board has concluded as
follows: (204 NLRB at 278).
The Supreme Court has set out the standard by
which we are to determine whether or not an
employer's prediction of the possible effects of unioni-
zation is permissible under the Act.
[The employer] may . . . make a prediction as to
the precise effect he believes unionization will
have on his company. In such a case, however,
the prediction must be carefully phrased on the
basis of objective fact to convey an employer's
belief as to demonstrably probable consequences
beyond his control or to convey a management
decision already arrived at to close the plant in
case of unionization. . . . If there is any implica-
tion that an employer may or may not take action
solely on his own initiative for reasons unrelated
to economic necessities and known only to him,
the statement is no longer a reasonable prediction
based on available facts but a threat of retaliation
based on misrepresentation and coercion, and as
such without the protection of the First Amend-
ment . We therefore agree with the court below
that "[c ]onveyance of the employer's belief, even
though sincere, that unionization will or may
result in the closing of the plant is not a statement
of fact unless , which is most improbable, the
eventuality of closing is capable of proof."
;[NLRB. v. Gissel Packing Co., Inc.,395 U.S. 575,
618 (1968).]
Through the Employer's repeated reference to the
Union causing other plants to close and the high
unemployment situation locally, the employees could
reasonably infer that their employment would be
jeopardized if they supported the Union and that the
Employer was willing to use its economic power to
make the threat an actuality. General Electric Wiring
Devices, Inc., 182 NLRB 876 [1970]. The implication
that such actions would be in retailiation for supporting
3 Turner denied having stopped or even having paused to observe these
people For reasons to be stated hereafter I do not credit this demal.
4 Turner has not been in Respondent's employ since October 1972.
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union is evident from the way it chose to convey its
message. Thus, the Employer spoke of other local
companies that moved or went out of business after
being unionized and clearly implied that it would do
the same , but failed to base its implication on
"demonstrably probable consequences beyond [the
Employer's] control ." Nowhere in its letters or speech
were there presented any cost comparisons or financial
data of any kind which might possibly provide a factual
basis for proving that the plant would be forced to
close if the Union represented the employees.
We find that the Employer 's campaign speeches and
literature as well as the two statements related above,3
taken as a whole , created an atmosphere of apprehen-
sion in the minds of the voters and destroyed the
laboratory conditions necessary for the conduct of a
free and fair election.
9 Member Penello would not find that the speeches and literature
alone constitute grounds for setting the election aside . However, he
joins in this decision because he finds that when considered with the
statements made by Bernson and Lazarek a different conclusion is
warranted. For those later statements clarify and amplify the previous
somewhat ambiguous observations. It has long been recognized that
statements and words which, standing alone, might be noncoercive,
take on the character and quality of coercive comments which are
part of the context in which the former occur. See Oak Manufacturing
Company, 141 NLRB 1323, 1325.
At this juncture it is to be noted that conduct found to be
so objectionable as to warrant the setting aside of an
election , as the Board has here decided , does not thereby
constitute an unfair labor practice. For "matters which are
not available to prove a violation of law, and therefore to
impose a penalty upon a respondent, may still be pertinent,
if extreme enough , in determining whether an election
satisfied the Board 's own administrative standards." 5 In the
representation case decision quoted above , however, the
Board has determined that the requiste "laboratory condi-
tions" have not been achieved . But it has also registered in
unmistakable language the guidelines for whomever, such
as me , would make recommendations as to the unlawful
character of the conduct in the context of a Section 8
proceeding as the instant one. Thus, the Board concludes
that "employees could reasonably infer that their employ-
ment would be jeopardized," and that "the Employer was
willing to use its economic power to make the threat an
actuality," and it finds such action to imply retaliation.
Relating these conclusions to the cited portions of the
Supreme Court's decision in the Gissel case, as the Board
does, it is obvious that the free speech strictures of Section
8(c)s are not present in any form. Absent statutory re-
straints and relying strictly on the conclusions already
reached by the Board , it is clear without need of further
citation of authority that the inferences of jeopardy to
employment, the implication of retaliation, and the threat of
the use of economic power, which have already been found,
8 General Shoe Corporation, 77 NLRB 124, 127 ( 1948).
s Sec. 8(c) of the Act provides as follows:
The expressing of any views, argument , or opinion, the dissemination
all represent the variety of conduct consistently found to
interfere with , restrain , and coerce employees in the exercise
of rights guaranteed by the Act. In these respects, therefore,
I conclude and find that Respondent has violated Section
8(a)(1).
The additional facts found herein present further
illustration of Respondent 's unlawful intent . Clearly Plant
Manager Turner's interrogations of employees Mathews
and Lacombe constitute intrusions by Respondent into
the self-organizing efforts of its employees , an area
proscribed by the Act. So also Turner's statement to
Lacombe to the effect that he had learned that their visitor
was a union representative and that a meeting was
scheduled for later in the day. This statement made it
abundantly clear to this employee that Respondent was
aware of the Union's activities among its employees.
Citation of authority is not necessary to conclude and find
as I do that such interrogation of Mathews and Lacombe
and the impressions of surveillance conveyed to Lacombe,
all by Respondent's plant manager in his official capacity,
constituted the interference , restraint , and coercion of
employees proscribed by Section 8(a)(1) of the Act, and I
so conclude and find.
2. The alleged refusal to bargain
It is conceivable , of course , that recent developments,
newly discovered evidence, or serious procedural flaws
would justify the Board's different treatment of the
representation issues in this proceeding in their new
context. But no flaw has been detected in the procedure
that has been followed. Nor can it be claimed that any
evidence adduced at the trial before me constituted either a
recent development or was newly found. On the contrary,
the incidents on the parking lot and in Turner's office
which I have found to violate Section 8(a)(1) occurred 6
weeks before the election on April 5, 1972, and 5 days
before the petition was filed Case 3-RC-5414, and
approximately the same length of time before the first of
the incidents considered by the Board-Lazarek's alleged
threat of possible plant closing found to have been made 4
to 6 weeks before the election (April 5 to 19). These
belatedly alleged incidents were known to the Acting
Regional Director who commented upon them in his
recommendations to the Board, thus:
During the course of the investigation, the Petitioner
alleged the Employer interrogated employees regarding
a discussion with a union representative on or about
April 5 and interrogated an employee on or about May
18, in an effort to ascertain whether the Petitioner was
starting legal proceedings against the Employer. Since
both alleged acts of interrogation occurred outside the
critical period, they will not be considered as objection-
able conduct [citing Goodyear Tire and Rubber Compa-
ny, 138 NLRB 453 ].
It is apparent from the formal documents in case
thereof, whether in written , printed, graphic, or visual form, shall not
constitute or be evidence of an unfair labor practice under any
provision of this Act, if such expression contains no threat of reprisal or
force or promise of benefit.
MOHAWK BEDDING CO., INC. 131
3-RC-5414 that the Stipulation for Certification Upon
Consent Election approved by the Acting Regional
Director was issued pursuant to Rule 102.62(b) of the
Board's Rules and Regulations, Series 8, as amended,
inasmuch as the Acting Regional Director's determinations
were not final ones as required by Subsection (a) of the
Rule, but were in the form of recommendations to the
Board as required by Subsection (b). All that followed
thereafter, including the Hearing Officer's report and the
Board's Decision, both referring to procedures pursuant to
Rule 102.69,7 which in turn refers Rule 102.62(b), make it
clear that final authority in the matter rested in the Board,
and the Acting Regional Director's role was simply to
recommend. Such being the legal posture of the case on
June 30, 1973, when the Board issued its Order and
Direction of Second Election I am concerned that the
Acting Regional Director reinjected himself into the matter
on February 22, 1974, by approving the withdrawal of the
petition, the document which initiated the case in the first
place.
Clearly this action had the intended effect of nullifying
all that had transpired before, however much future
reinstatement of the case was assured. But inherent in such
nullification is the setting aside of the Board's Order.
Nowhere in the Board's Rules and Regulations do I find
authority vested by the Board in subordinate offices or
officers to set aside its decisions or to abrogate its orders.
Nor in the instant case was any authority specially
conveyed to the Acting Regional Director either explicitly
or otherwise. On the contrary he states in his letter of
February 22, to Respondent that the petition was withdraw
"with my approval." Under all circumstances, then, I can
draw no other conclusion but that the withdrawal of the
petition in Case 3-RC-5414 was the implied abrogation of
the Board's Direction of a Second Election, and according-
ly, an ultra vires act of no force and effect.
As the Board's Direction of Second Election still remains
in force I find it premature to determine the significance as
to the possible refusal to bargain violation of the several
newly added incidents of unlawful conduct which I have
found herein. If, when added to the findings upon which
the Board based its Direction of a Second Election, which I
have found likewise to violate Section 8(a)(l), the Board
sees fit to reconsider its Decision in Case 3-RC-5414 it
would then be appropriate for me to assist the Board by
recommendations of my own. Meanwhile, in the face of
the Board's outstanding order and direction I would
consider myself presumptious if I were to consider the
appropriateness of a bargaining order at this time. I
accordingly recommend the dismissal of so much of the
7 Pertinent excerpts from the Board 's Rules and Regulations are
attached hereto as Appendix B [Sec . 102 69(f), omitted from publication].
8 Prior to the trial and thereafter at its commencement Respondent's
counsel requested of counsel for the General Counsel that he produce for
Respondent's inspection a copy of a memorandum issued by the Division of
Advice of the Office of the General Counsel relating to the instant case.
Insofar as my decision rejects the theory advanced by counsel for the
General Counsel, which is presumably the subject matter of the administra-
tive advice memorandum being sought , I would find the production of the
document unnecessary at this time . In any event , however, consistent with
settled policy of the Board and with all due respect to the United States
Court of Appeals for the District of Columbia Circuit, I will not direct the
complaint herein as alleges a refusal to bargain in violation
of Section 8(a)(5).8
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the 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 of commerce.
V. THE REMEDY
It has been found that Respondent by acts and
statements has interfered with, restrained, and coerced its
employees in violation of Section 8(axl) of the Act. I shall
accordingly recommend that it cease and desist therefrom
and from in any like or related manner interfering with,
restraining, or coercing its employees. Affirmatively I shall
recommend that it post appropriate notice of compliance
with such order as the Board issues. With respect to so
much of the complaint as alleges that Respondent
unlawfully refused to bargain with the representative of its
employees I shall recommend that such allegations be
dismissed.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDERS
Respondent Mohawk Bedding Company, Inc., its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) By statements of its supervisors, posted notices,
letters and speeches, threatening its employees with the
closing of its plant or a conversion of it to a warehouse, if
they select Textile Workers Union of America, AFL-CIO,
or any other labor organization to represent them.
(b) Unlawfully interrogating its employees concerning
the aforementioned Union and their own and their fellow
employees' union activities and sympathies.
(c) Implying to employees that their union activities are
under surveillance.
(d) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
rights guaranteed them by the Act.
2. Take the following affirmative action which it is
deemed will effectuate the policies of the Act:
production of the document being requested upon authonty of Sears
Roebuck & Company v N LR B, No 72-1870, July 27, 1973 (not reported),
until such time as the Board complies with the court's order or otherwise
reverses its policy in the matter, or if directed to do so by the United States
Supreme Court Iowa Beef Packers, Inc, 144 NLRB 615 (1963).
9 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 , and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its fmdmgs, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Post at its Utica, New York, facility the notice
attached hereto as Appendix C.10 Copies of said notice on
forms provided by the Regional Director for Region 3,
shall after being duly signed by the Respondent be posted
immediately upon receipt thereof in conspicuous places,
and be maintained for a period of 60 consecutive days.
Reasonable steps shall be taken to insure that said notices
are not altered, defaced, or covered by any other material.
(b) Notify said Regional Director in wasting, within 20
days from the receipt of this Decision what steps shall be
taken therewith.
IT IS FURTHER ORDERED that so much of the complaint
herein as alleges a violation of Section 8(a)(5) be, and
thereby is, dismissed.
10 In the event the Board's Order is enforced by a Judgment of the
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."
APPENDIX C
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten you, by letters, notices or
speeches or statements of our officers or supervisors,
that we will close the plant or convert it to a warehouse,
if you select the Textile Workers Union of America,
AFL-CIO, or any other labor organization to represent
you.
WE WILL NOT unlawfully question you about the
Textile Workers Union of America, AFL-CIO, or any
other labor organizations about your union activities
and sympathies.
WE WILL NOT give you the impression that your
union activities are being spied upon.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of rights
guaranteed you by the National Labor Relations Act.
All of you, our employees, are free to remain, or
withdraw from membership in, or become or refrain from
becoming members of Textile Workers of America,
AFL-CIO, or any other labor organization.
MOHAWK BEDDING CO.,
INC.