Barnwell Sportswear, Inc.

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.