Duvernoy & Sons, Inc.

538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Duvernoy & Sons, Inc. and Bakery & Confectionery Workers International Union of America, Local No. 3 and Bakery & Confectionery Workers International Union of America, Local 350, Party in Interest Duvernoy & Sons, Inc. and Bakery & Confectionery Workers International Union of America, Local No. 3, Petitioner. Cases 2-CA-11690 and 2-RC-15034 June 30, 1969 DECISION, ORDER, AND DIRECTION OF SECOND RUNOFF ELECTION BY MEMBERS FANNING, BROWN, AND JENKINS On April 29, 1969, Trial Examiner William W. Kapell issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action. He also found that the Respondent had not engaged in certain other alleged unfair labor practices and recommended dismissal of those allegations of the complaint. In addition, the Trial Examiner found that the Respondent had engaged in objectionable conduct prior to the runoff election held in Case 2-RC-15034, and recommended that the said election be set aside, all as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent and the General Counsel 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 these cases 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, the briefs, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the Respondent, Duvernoy & Sons, Inc., New York, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges violations other than those found by the Trial Examiner. IT IS HEREBY FURTHER ORDERED that the runoff election conducted on November 21, 1968, in Case 2-RC-15034, be and it hereby is, set aside. [Direction of Second Runoff Election' omitted from publication.] '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 addresses which may be used to communicate with them Excelsior Underwear Inc, 156 NLRB 1236, N L R.B v. Wyman-Gordon Company, 394 F 2d 759 Accordingly , it is hereby directed that an election eligibility list, the containing names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 2 within 7 days after the date of issuance of the Notice of Second Runoff 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 AND REPORT ON OBJECTIONS TO AN ELECTION STATEMENT OF THE CASES WILLIAM W. KAPELL, Trial Examiner: Case 2-CA-11690, a proceeding under 10(b) of the National Labor Relations Act, as amended, herein called the Act, was heard at New York, New York, on February 17, 1969, with all parties participating pursuant to due notice upon a complaint' issued by the General Counsel on December 30, 1968.2 The complaint, in substance, alleges that Duvernoy & Sons, Inc , hereafter referred to as Respondent or Company, engaged in unfair labor practices in violation of Section 8(a)(1) and (2) of the Act by unlawful interrogation of, and promise of an economic benefit to, an employee and by a threat of economic reprisal to the employees Respondent in its duly filed answer denied the commission of any alleged unfair labor practices. In Case 2-RC-15034, pursuant to a Stipulation for Certification Upon Consent Election of October 11, an election was held on November 13, in the unit composed essentially of Respondent's office clerical and order department employees and switchboard operator to determine whether said employees desired to select Local 3 or 350 as their exclusive bargaining representative or whether they desired no union representation. A tally of ballots cast showed that neither Union nor no union received a majority of the votes cast. A runoff election was thereafter conducted on November 21, providing for a selection between either Local. A tally of 30 ballots cast indicated 16 votes for Local 350, 14 for Local 3, and 2 ballots challenged.' On November 26, Local 3 filed timely objections to the election alleging that the Company's conduct impaired and influenced the employees' freedom 'Based upon a charge filed by Bakery & Confectionery Workers International Union of America , Local No. 3, hereafter referred to as Local 3. 'All dates hereafter refer to the year 1968 unless otherwise noted 'The challenge by Local 350 to the ballot of employee Migdaha Urquiza was overruled by the Acting Regional Director for Region 2, and at the 177 NLRB No. 83 DUVERNOY & SONS, INC. 539 of choice in the runoff election and requesting that the election be set aside and that a new election be held Thereafter, the heanng on the objections to the runoff election was consolidated for purpose of hearing with the hearing in Case 2-CA-11690 because the determination of the merits of the objections was germane to the issues raised in the complaint in the latter case. All parties were represented and were afforded an opportunity to adduce evidence, to examine and cross-examine witnesses, and to file briefs. Briefs were received from the General Counsel and Respondent and have been carefully considered. Upon the entire record in the cases, and from my observation of the witnesses, I make the following FINDINGS OF FACT I COMMERCE Respondent, a corporation duly organized under the laws of the State of New York, maintains an office and place of business in the city and State of New York, where at all times material herein it has been engaged in the production, sale, and distribution of bread, rolls, cakes, and related products During the past year, which period is representative of its annual operations generally, Respondent, in the course and conduct of its business operations, produced, sold, and distributed at its place of business, products valued at in excess of $50,000, of which products valued in excess of $50,000, were shipped from said place of business in interstate commerce directly to States of the United States other than the State of New York I find, and Respondent admits, that at all times material herein it has been engaged in commerce as an employer within the meaning of Section 2(6) and (7) of the Act. 11 THE LABOR ORGANIZATIONS INVOLVED Respondent admits, and I find, at all times material herein that Locals 3 and 350 have been labor organizations within the meaning of Section, 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES As related above, following the indecisive election on November 13, a runoff election was held on November 21 between Locals 3 and 350 The complaint alleges that, in violation of Section 8(a)(1) and (2) of the Act,` Respondent (I) through Harold Saxe, its treasurer, interrogated an employee concerning how said employee voted in the first election and promised an employee a benefit in the form of leave to induce that employee to vote for Local 350 in the runoff election, and (2) through Mary Kelleher, also known as Mary Condon, its agent and supervisor, threatened an employee that the employees would lose their jobs if they voted for Local 3 in the runoff election. Respondent denied both the commission of any violative conduct and also the agency or supervisory status of Mary Kelleher. A. Agency and/or Supervisory Status of Kelleher The undisputed evidence shows that until November 22 employee Migdalia Urquiza and thereafter her replacement, Susan Lang, were responsible to Kelleher. Urquiza, who performed office clerical work, spent approximately half of her time working for Kelleher, the other half was performed for Head Accountant Neuman Although Urquiza's work was mostly of a routine nature, she would advise Kelleher upon completion of an assignment and at that time would receive a new assignment. Kelleher also switched her from one job to another, when necessary. When she was faced with a problem in her work, she consulted Kelleher who reviewed her work and issued verbal warnings to her if found unsatisfactory. If Urquiza wished to leave work early, she requested permission from Kelleher who used her discretion in granting it. In the event that she was unable to report for work, she would call Kelleher. Her work station was in a large room where other clericals also worked. Her pay, as well as that of her replacement, was computed and paid for on an hourly basis and amounted to $86 a week She, as well as the other clericals, punched a timeclock. It also appears that both Urquiza and Lang regarded Kelleher as the boss of their department and that Kelleher was aware of being so regarded. Kelleher, an employee of 20 years, testified that she received a weekly salary of $166 25, that she was not docked for absences due to illness nor paid for overtime, that she did not punch a timeclock, that she shared a private office with Head Accountant Neuman, that other employees who admittedly were supervisors also were paid weekly salaries and did not punch a timeclock, that she did not have the authority to hire, fire, or effectively recommend such action, that she was unable to recall whether she or Saxe recommended that Lang replace Urquiza, but admitted that she was far more familiar with Lang's prior work than Saxe, and that many years ago she supervised about 10 employees.' Harold Saxe, the company treasurer, to whom Kelleher is responsible testified that she had no final authority to hire or fire, although he would listen to her recommendations as he would to those of any other employee He admitted that on an employee payroll register (G C Exh. 2) he made a notation alongside of Kelleher's name to the effect that she was a supervisor." The undisputed evidence amply supports findings that Kelleher was charged with the responsibility for, and used her discretion in, directing the work of Urquiza and Lang, that said employees regarded her as the boss, that like other supervisors she did not punch a timeclock and was paid a weekly salary not dependent upon the number of hours she worked, and that her weekly compensation was about double that received by Urquiza or Lang, who punched a timeclock and were paid on an hourly basis. 1, therefore, conclude that she is a supervisor whose actions are attributable to Respondent within the meaning of the Act. hearing herein , all parties agreed to the withdrawal of the challenge to her ballot The parties also stipulated that the other ballot, cast by Nancy Keller and challenged by Local 3 on the ground that she is a supervisor, should not be counted and that her status should not be determined herein 'Although paragraph 7 of the complaint sets forth that Respondent's agents, Russell Duvernoy and Harold, Saxe, by letter and statements to its employees informed them of their preference for Local 350 in the forthcoming election, such action is not alleged as unfair labor practices and claimed by the General Counsel at the heanng to constitute background only 'In her preheanng affidavit to a Board agent she stated that she had authority to discharge an employee working under her, that she supervised one girl and was responsible for getting out her work , and that she and Donald Duvernoy (an admitted supervisor) were "on a plane of equal authority " 'Kelleher was not listed as an eligible voter for the election Respondent claimed that she was a confidential employee 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Alleged Interrogation of, and Promise of Benefit to, Urquiza Urquiza began working for Respondent in 1966, and left on November 22. She testified that earlier she had informed Kelleher that she was expecting a baby and would have to take maternity leave . Kelleher advised her to see Saxe about any possible maternity benefits. On November 19, upon bringing a letter which she had typed for Saxe to his office, he asked her whether she wanted to know anything about the Union. When she replied that she did not, he stated that he knew that she was involved with the girls in the Unions. After denying it, she recollected that Kelleher had advised her to speak to Saxe about being entitled to any maternity benefits and she questioned him about it. Saxe replied, "No, please vote for Local 350, and I'll see you after the election." According to Saxe, Urquiza spoke to him on November 15, and asked whether she was going to get anything upon leaving the Company , and he replied that he would have to let her know . He explained that he was unable to give her an immediate answer because the request was unusual and would have to be cleared with President Duvernoy. He thereafter consulted Duvernoy and recommended that she should receive an additional sum of money. On November 22, the day after the election, Urquiza either was told that she would receive or was given five-twelfths of 3 weeks' salary, representing accrued vacation pay. Saxe also denied that in this conversation he discussed the election with her. Nor could he recall any conversation on November 19 with her . Based on the demeanor of the witnesses, especially the unsophisticated and guileless candor of Urquiza, I credit her testimony. Conclusions The General Counsel contends that, in violation of Section 8(a)(1), Saxe interrogated Urquiza and promised her a maternity benefit to obtain her support for Local 350. Section 8(a)(1) provides that it shall be an unfair labor practice for an employer to interfere with, restrain, or coerce an employee in the exercise of rights guaranteed by Section 7 of the Act. It is well settled that the test of such interference, restraint, or coercion is whether the conduct involved may reasonably be said to tend in those directions . Radio Officers' Union of Commercial Telegraphers Union , AFL v. N.L.R.B., 347 U.S. 17, 51. In determining that question the impact of Saxe's remarks must be assessed in the context of the surrounding circumstances . One indecisive election had been held and another one, limited to a choice of either Union, was scheduled to be held shortly . The Company , originally opposed to any union , had at the time in question a strong antipathy to Local 3 and was campaigning for Local 350. Saxe's inquiry as to whether Urquiza was involved in the Unions was an attempt to ascertain which Union she was supporting and/or how she voted in the first election. Her denial of union involvement was strongly indicative of a fear of having to declare her preference . At that point in their conversation she did not know whether or not she would receive a maternity benefit . Thus, there was questioning by an officer of the Company against a background of strong opposition to Local 3, there was no assurance against reprisal accompanying the questioning, and the inquiry was directed towards ascertaining the union sympathies of a particular employee and could not conceivably have served any legitimate purpose. Although the interrogation was not an aggravated nature and was only one of two instances of interrogation,' it can not be considered isolated or minimal and of little coercive effect in view of its relationship to the runoff election. Under such circumstances, Respondent's conduct violated Section 8(a)(1) of the Act. Cf. Bourne v. N.L.R.B., 332 F.2d 47 (C.A. 2). See Struksnes Construction Co., Inc., 165 NLRB No. 102. When Urquiza inquired about a maternity benefit, Saxe's reply was an unequivocal refusal. However, the General Counsel argues that Saxe's request to see him after the election neutralized or nullified his refusal and should be construed as a promise of a maternity benefit to induce Urquiza to vote for Local 350. I find the General Counsel's contention too tenuous of acceptance and conclude that he failed to substantiate it by the preponderance of the evidence. C. The Alleged Threat of Reprisal to Geraldine Belton Belton began working for Respondent on September 26 as an order clerk. She testified that almost immediately after the employees had been assembled to hear President Duvernoy deliver a speech urging them to repudiate Local 3 and to vote for Local 350,` Kelleher walked by her desk and said "I don't understand what's wrong with the people here." When Belton asked "What do you mean?" Kelleher stated , "Well, didn't they hear him. Can't they see that we won't have jobs if Local 3 gets in here?" to which Belton replied, "yes, I know what you mean." Kelleher testified that she did not recall talking to Belton after Duvernoy's speech. Based on the straightforward and convincing manner in which Belton testified, her testimony as related above is credited despite the fact that she is now employed by Local 3. Conclusions On the foregoing credibility findings, I conclude that Kelleher's threat to Belton following Duvernoy's speech, which at the very least reflected possible adverse consequences flowing from a Local 3 victory at the election,' restrained or coerced Belton in the exercise of rights guaranteed in Section 7 of the Act in violation of Section 8(a)(1). I find further that Kelleher must have been aware of the unsettling effect on the employees of Duvernoy's speech, and that her followup with a threat of economic reprisal if the employees voted for Local 3 was calculated to, and did, assist Local 350 to such a point as to transcent the proscription of Section 8(a)(2) of the Act. D. The Alleged Interrogation of Robert K. Brown Brown has been employed by Respondent since September 1966. At all times material herein he has been the assistant credit manager. He testified that, between the first and second elections, Saxe called him into his office and asked for whom he had voted at the first election. When Brown inquired why he wanted to know, Saxe stated that they were trying to ascertain the identity of the 'See infra, the interrogation of Robert Brown 'Respondent admitted that Duvernoy made such a speech in the plant to the assembled employees on November 19. See, infra, Local 3's contention that the speech , inter alta, improperly interfered with the runoff election 'As indicated above , the speech is not asserted to be an unfair labor practice DUVERNOY & SONS, INC. two employees who had voted against representation by either Union Brown replied that he had voted for Local 350. He explained that this was not necessarily true, and that he gave his answer because he was in a difficult spot and was worried about ever becoming a full-fledged credit manager. On cross-examination however, he admitted asking Saxe on some occasions what he thought about the union business, and that he might have made similar remarks prior to the second election but not on the day Saxe asked how he voted Saxe testified that Brown initiated several conversations with him in which he expressed a strong dislike for all unions and requested advice about how he should vote in the runoff election in view of the fact that he could not vote "no union." Saxe also denied ever questioning Brown as to how he voted in the first election, but admitted expressing the Company's preference for Local 350. Brown's testimony in general was somewhat vague and indefinite He impressed me as attempting to preserve good relations with the Company while at the same time expressing his disappointment over the way the Company was treating him concerning his position and the prospects of advancement to the position of credit manager. I find that on several occasions he initiated conversations with Saxe concerning the Unions, and requested his opinion about them However, he was positive that in the conversation in which Saxe inquired as to how he voted in the first election, he did not question Saxe about the Unions. Based on his demeanor concerning that incident and the plausibility of the alleged inquiry in the light of its background, I credit his testimony as to that conversation. Conclusions As noted above in connection with Saxe's questioning of Urquiza, I find that Saxe was similarly attempting to ascertain how Brown voted without giving any assurance against reprisal, that his answer was apparently not truthful for fear of jeopardizing his future, and that the inquiry did not serve any legitimate purpose Under these circumstances, Respondent's conduct violated Section 8(a)(1) of the Act. IV OBJECTIONS TO THE ELECTION - CASE 2-RC-15034 Following the runoff election, Local 3 on about November 26 filed objections to conduct of Employer affecting the results of the rerun election, alleging that the Employer engaged in interrogating and harassing its employees with respect to their affiliation with Local 3, disparaging and villifying said Local, threatening job loss and plant shutdown in the event Local 3 won the runoff election, offering promises of welfare and pension benefits if the employees repudiated Local 3 and voted for Local 350, and urging employees to vote and support Local 350. Local 3 asserted further that said conduct was calculated to and did impair and influence the employees' freedom of choice in the runoff election, and requested that said election be set aside and that a new election be held. Thereafter, about December 30, the Acting Regional Director issued a report on the aforesaid objections, stating, inter alia, that findings with respect to the objections necessitate the resolution of credibility and other issues which will be resolved in the unfair labor practice case and ordered, inter alia , that the hearing on the objections be consolidated with the hearing on the complaint in the unfair labor case. On January 17, 1969, the Regional Director issued a Supplemental Report on 541 the Objections and Challenged Ballots, wherein the prior order for consolidation was extended to include the resolution of a challenged ballot '° It is undisputed that on November 18, Duvernoy sent the following letter to the office employees- 18 November, 68 TO OUR OFFICE EMPLOYEES: As you know, the election scheduled for Thursday, November 21, 1968 at 9 30 AM will be between Locals 3 and 350. You will not have the opportunity to vote "No Union". Since we are going to be required to have a Union you should know how we feel about which Union would be best for you. We have no love for any Union but one thing is clear it is difficult to imagine how we could live with Local 3, a factory Union, that to our knowledge has no labor agreement with any office employees The result of such a relationship could be Union demands dictated by Local 3's ignorance of your problems. Demands by Local 3, which may result in a strike, could force the Company to cease operating in the City of New York. Apparently the majority of the office employees feel they need Union representation We ask that those of you who voted for local 3 reconsider your vote, since it vitally affects your own future and the future of this Company Sincerely yours, /s/ Russell E. Duvernoy President It also appears that, pursuant to Respondent's instructions, the employees were assembled on November 19 during office hours in a large office in the plant where many of the clericals worked, and that President Duvernoy made a speech The evidence is somewhat in conflict as to what Duvernoy stated regarding the moving of the plant outside of the metropolitan area in the event Local 3 won the runoff election. Urquiza's testimony indicated that she was not quite sure whether Duvernoy said he would be unable to operate in New York or might not be able to, if Local 3 won the election. According to Belton, Duvernoy said that if Local 3 came in he would be unable to meet their demands, would not be able to operate in the metropolitan area, and would have to leave the city. Brown testified that Duvernoy stated that, if Local 3 came in, they might possibly have to move outside the city limits. Duvernoy testified that in making the speech he used a general outline after clearing it with his attorney, that he urged the employees to vote for Local 350 because Local 3 lacked experience in dealing with office employees, that he told them most of competitors' employees were represented by Local 350, that they would not be in a position to meet the excessive demands of Local 3, and that they "might find it difficult to operate in New York City" if Local 3 represented the office workers Based on the demeanor of the witnesses and the fact that the speech was intended to and did follow the trend or substance of the letter which was sent to the employees, I credit Duvernoy's testimony as to the contents of his speech "As a result of the stipulations (see supra) made during the hearing concerning the withdrawal of the ballot challenges , the objections to the election became the only issues to be resolved in the representation case 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Conclusions In evaluating the interference resulting from specific conduct, the Board does not attempt to assess its actual effect on the employees, but rather concerns itself with whether it is reasonable to conclude that the conduct tended to prevent the free formation and expression of the employees' choice. Narrowly stated, the issue is whether Respondent's conduct viewed in light of all the circumstances went beyond a mere demonstration of preference and constituted forbidden support for Local 350. The fact that two rival Unions were competing for employee support created a rather sensitive situation in which even slight pressure could assume a decisive influence . In this respect it is significant to note that both Unions entered into and honored a stipulation that during the course of the campaign neither one would be afforded access to the Employer's premises. Thus, when the Employer used its own premises during working time to campaign on behalf of Local 350, it disturbed the delicate balance which the Unions sought to establish. "At a time when the rival organizations were still in a formative state, with opinion still divided and no definite decision reached as to which organization should be chosen, the employees were sensitive to weight thrown by their employer in favor of one organization as against another, even though the suggestion of preference be subtle or slight." Elastic Stop Nut Corporation v. N.L.R.B., 142 F.2d 371, 375 (C.A. 8), cert. denied 323 U.S. 722. Even "slight suggestions as to the employer 's choice between unions may have telling effect among men who know the consequences of incurring the employer's strong displeasure." International Association of Machinists fSerrick Corp.] v. N.L.R.B., 311 U.S. 72, 78." In the instant case a strong displeasure was clearly expressed both in Respondent's letter and speech by a predicted inability to work with Local 3 because of the demands it would make, which might result in a strike or could force the Company to cease operating in New York City. Inferentially , no such problems were envisioned if Local 350 was chosen. The prospects engendered by a Local 3 victory were calculated to convey to the employees the dangers of designating that Union . Furthermore, Kelleher's threat to Belton, following Duvernoy's speech, to the effect that the employees would lose their jobs if Local 3 prevailed in the forthcoming election vividly gave unmistakeable meaning to the speech. Nor can Respondent claim that its utterances and statements to the employees were protected by Section 8(c) of the Act. The Board has clearly held that Section 8(c) has no application to representation cases, and overruled its prior decisions to the extent that they suggest that Section 8(c) is applicable to preelection statements." I conclude that the impact of Respondent's conduct, including its unfair labor practices, ". . . was well calculated to impress upon the employees that the selection of [Local 3] as their bargaining representative could only change their conditions of employment for worse." General Industries Electronics Company, 146 NLRB 1139, 1141. I, therefore , conclude that the employer's conduct resulted in substantial interference with the runoff election and prevented the employees' expression of a free choice in that election. Dal-Tex "It is also significant to note the closeness of the vote in both elections; 15 to 14 in favor of Local 350 in the first and 16 to 14 in the rerun election "Dal-Tex Optical Co . Inc, 137 NLRB 1782, 1787, fn 11. Optical Co., Inc., supra. I accordingly recommend that the runoff election be set aside and a new election be held. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES The activities of Respondent set forth 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 of commerce Upon the foregoing findings of fact and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. 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, the Unions have been labor organizations within the meaning of Section 2(5) of the Act. 3. By giving unlawful assistance and support to Local 350 Respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8(a)(2) of the Act. 4. By the foregoing conduct, and by threatening employees with loss of their jobs if they voted for Local 3 and interrogating employees concerning their union sympathies , Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The foregoing unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 6. All allegations of the complaint as to which specific findings of violations have not been made have not been sustained by the preponderance of the evidence. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action necessary to effectuate the policies of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in the case, I recommend that Duvernoy & Sons, Inc., its officers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Interfering with, restraining , or coercing its employees in the exercise of their statutory rights by interrogating them concerning their union sympathies or threatening them with loss of their jobs in the event they vote for or select Bakery & Confectionery Workers International Union of America, Local No. 3, or any other labor organization , as their bargaining representative. (b) Discouraging support of its employees for Bakery & Confectionery Workers International Union of America, Local No. 3, or assisting Bakery & Confectionery Workers International Union of America, Local 350, or any other labor organization to become the exclusive bargaining representative of its employees. DUVERNOY & SONS, INC. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act 2. Take the following affirmative action which is designed to effectuate the policies of the Act: (a) Withhold all recognition from Bakery & Confectionery Workers International Union of America, Local 350, as the exclusive bargaining representative of its employees for the purpose of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other terms and conditions of employment, unless and until such labor organization shall have been certified by the Board as the exclusive collective-bargaining representative of such employees. (b) Post at its plant in New York, New York, copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 2, after being duly signed by Respondent's representative, shall be posted by Respondent 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 2, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith." IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges violations other than those specifically found herein. "in the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice in the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " "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 NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor 543 Relations Act, as amended , we hereby notify our employees that WE WILL NOT interrogate our employees coercively concerning their union sentiments. WE WILL NOT threaten our employees with loss of their jobs in the event they select Bakery & Confectionery Workers International Union of America, Local No. 3, as their bargaining representative. WE WILL NOT assist or contribute assistance to Bakery & Confectionery Workers International Union of America, Local 350, or any other labor organization of our employees. WE WILL NOT in any like or related manner interfere with, restrain , or coerce our employees in the exercise of their rights to self-organization, to form labor organizations , to join Bakery & Confectionery Workers International Union of America , Local No. 3, or any other labor organization , to bargain collectively through representatives of their own choosing , or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any and all such activities , except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act WE WILL withhold all recognition from Bakery & Confectionery Workers International Union of America, Local 350, as the exclusive bargaining representative of our employees for the purpose of dealing with us concerning grievances , labor disputes, wages, rates of pay, hours of employment, and other conditions of employment, unless and until such labor organization shall be certified by the Board as the exclusive representative. All our employees are free to become , remain, or to refrain from becoming or remaining members of the Union or any other labor organization Dated By DUVERNOY& SONS,INC. (Employer) (Representative) (Title) 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Federal Building, 36th Floor, 26 Federal Plaza, New York, New York 10007, Telephone 212-264-0300.