Beaunit Corp.

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, VikingofMinneapo- 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.