Mohawk Bedding Co., Inc.

126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mohawk Bedding Co., Inc. and Textile Workers of America, AFL-CIO. Case 3-CA-4930 January 13, 1975 DECISION, ORDER, AND ORDER REMANDING FOR FURTHER FINDINGS AND CONCLUSIONS BY ACTING CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On June 14, 1974, Administrative Law Judge Thomas F. Maher issued the attached Decision in this proceeding. Thereafter, Respondent and the General Counsel filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt the recommended Order, as modified herein. 1. We agree with the Administrative Law Judge's conclusions that Respondent has violated Section 8(a)(1) of the Act by virtue of its actions in having delivered a speech to its employees and distributing various pieces of antiunion literature to them, the effect of which was to threaten them with economic reprisals if they voted for the Union. 2. We also agree with the Administrative Law Judge that Respondent unlawfully interrogated employees Mathews and LaCombe and created the impression of surveillance during conversations between these two men and its operations manager, and that by these actions Respondent has further violated Section 8(a)(1) of the Act. 3. We are, however, remanding the case to the Administrative Law Judge for findings and conclu- sions with respect to the charge that Respondent violated Section 8(a)(5) of the Act. The Administra- tive Law Judge refused to make findings and conclusions with respect to that charge on the grounds that the Acting Regional Director's action in approving the withdrawal of the petition in Case 3-RC-5414 was ultra vires insofar as it had the effect of nullifying the Board's Direction of a Second Election. Having concluded that the Acting Regional Director's approval of the withdrawal of the petition was of no force and effect, he found the Board's Direction of Second Election remained in force and he had no power to determine the 8(a)(5) issue.' The approval of the withdrawal of the petition by the Acting Regional Director is fully within his authority under long-established Board precedent. The charge that Respondent violated Section 8(a)(5) of the Act by refusing to bargain with the Union was therefore properly before the Administrative Law Judge. Accordingly, we hereby remand the case to him to make the appropriate findings and conclu- sions. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified herein, and hereby orders that the Respon- dent, Mohawk Bedding Co., Inc., Utica, New York, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order. IT IS FURTHER ORDERED that the above-entitled proceeding be, and it hereby is, remanded to Administrative Law Judge Thomas F. Maher, for the purpose of making findings and conclusions based on the allegations in the complaint that Respondent violated Section 8(a)(5) by refusing to bargain with the Union. I This case is unusual in that the unfair labor practice charges should have initially prevented the further processing of the representation case pursuant to the Board's longstanding policy. E.g., Carson Pine Scott & Company, 69 NLRB 935-938 ( 1946). It is the usual policy of the Board to process such charges before or concurrently with related administrative determinations so as to provide the parties the full benefit of a substantive hearing in which to litigate important rights guaranteed by the Act which might preclude the possibility of holding a fair election. However, in this case, the Board was unaware of the existence of the charges until after a decision had issued on the objections. DECISION STATEMENT OF THE CASE THOMAS F. MAHER, Administrative Law Judge: Upon a charge filed on May 31, 1972, by Textile Workers Union of America, AFL-CIO, herein called the Union, the Regional Director for Region 3 of the National Labor Relations Board, herein called the Board, on February 4, 1974, issued a complaint against Mohawk Bedding Co., Inc., Respon- dent herein, on behalf of the General Counsel of the Board, alleging violations of Section 8(a)(1) and (5) of the National Labor Relations Act, as amended (29 U.S.C., Sec. 151, et seq.), herein called the Act. In its duly filed answer Respondent, while admitting certain allegations of the complaint, denied the commission of any unfair labor practice. Pursuant to notice a trial was held before me in Utica, New York. All parties were present, represented and afforded full opportunity to be heard, called, examine, and cross-examine witnesses, present oral argument and file briefs. Briefs were filed with me by Respondent and General Counsel on April 22, 1974. In addition to the foregoing procedural steps taken in the 216 NLRB No. 20 MOHAWK BEDDING CO., INC. 127 instant case there was introduced into evidence by stipulation at the trial and incorporated into this case the transcript of heanng, pleadings, reports of the Regional Director and of a duly appointed Hearing Officer respectively, and a decision of the Board in Case 3-RC-5414,1 being a representation proceeding involving the employees of Respondent and the Charging Union herein, and comprising the identical subject matter of the complaint issued herein on February 4, 1974. For the purpose of properly stating the entire case at issue the following procedural steps in Case 3-RC-5414 are set forth: A representation petition was filed on April 10, 1972, by the Charging Union herein. Thereafter, pursuant to a Stipulation for Certification Upon Consent Election, duly approved, an election was held on April 27, 1972, among Respondent's 25 eligible voters. By a vote of 16 to 9 the employees rejected the Union as their bargaining repre- sentative. Thereafter, upon objections duly filed by the Union, a Report on Objections was issued by the Acting Regional Director on July 10, 1972, wherein it was found that the objections did not raise substantial or material issues with respect to the election, and it was recommended to the Board that they be overruled and that the results of the election be certified. Upon exceptions to the report taken by the Union the Board overruled the Acting Regional Director, and found that issues had been raised with respect to statements made by Respondent's foreman that could best be resolved by a hearing; it reserved decision upon other objections. At the hearing, thereafter held before a duly appointed Hearing Officer, evidence was taken and on February 20, 1973, there issued a Report of Hearing Officer on Objections to Election in which it was recommended to the Board that upon the record made the Union's objections be overruled. Upon exception taken to the Board by the Union and full consideration of the case, the Board, on June 20, 1973, decided (one member dissenting) and ordered that the election be set aside and directed the holding of a second election. The complaint was issued in this matter on February 4, 1974, alleging therein the identical subject matter consid- ered by the Board in its decision. Thereafter, on February 8, 1974, counsel for the General Counsel issued a notice of intention to amend complaint, the subject of which was to add the following subparagraphs to paragraph VI of the complaint: Respondent, by its supervisor and agent, Howard T. B. Turner, on or about April 5, 1972, in Turner's office, interrogated its employees as to their employees' union sympathies, activities or desires. Respondent, by its supervisor and agent, Howard T. B. Turner on or about April 5, 1972, in Turner's office, created the impression among its employees that it was keeping the employees' union activities under surveil- lance On February 22, 1974, the Acting Regional Director communicated to Respondent herein his disposition of Case 3-RC-5414, previously decided by the Board (supra), as follows: This is to advise that the petition in the above case has, with my approval, been withdrawn as of February 22, 1974. However, complaint having issued in Case No. 3-CA-4930 in which a bargaining order will be sought, the petition is subject to reinstatement upon appropriate application after disposition of the unfair labor practice charge referred to herein. [Emphasis added.] Upon consideration of the entire record in this matter, including the entire record and briefs as well as the reports, and recommendations to the Board of the Regional Director, Acting Regional Director, and the hearing officer, respectively, and the decision of the Board in Case 3-RC-5414, I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. THE NATURE OF RESPONDENT' S BUSINESS It has already been found by the Board that the Respondent herein is an employer engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The Board has already found the Charging Union to be a labor organization within the meaning of Section 2(4) and (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Findings and Conclusions of the Board As set forth in its decision in Case 3-RC-5414 and reported at 204 NLRB 277, the following constitutes the findings and conclusions of the Board applicable to the issues involved herein: 2 5. The Board has considered the Acting Regional Director's Report on Objections , the Report of Hearing Officer on Objections to Election, and the Petitioner's exceptions and briefs and finds merit in the Petitioner's exceptions. On April 20, 19721 shortly after the Union filed its petition, the Employer began an antiunion campaign by posting a bulletin promising the employees the "TRUE FACTS." Thereafter, the Employer issued a series of letters and speeches which, taken cumulative- ly, conveyed a threat of adverse economic conse- quences as the inevitable result of the employees' selection of the Union as their bargaining representa- tive. In the first letter dated May 2, the Employer stated: The complaint was accordingly amended at the opening of the trial herein. 1 204 NLRB 277 (1973) 2 A copy of the Board's Decision and the attachments thereto have been incorporated into this Decision and are attached hereto as Appendix A [Omitted from publication ] I [All dates are in 1972, unless otherwise indicated] You will recall that before we took over this plant, it was operated by Foster Brothers. Foster Broth- 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ers was organized by the Steel Workers... . FOSTER BROTHERS WENT OUT OF BUSI- NESS AND ALL THE EMPLOYEES LOST THEIR JOBS. On or about May 5, the Employer issued a second letter wherein it took up the subject of job security, which was to become the theme of its entire campaign. The letter in pertinent part stated: The unemployment rate in the Utica-Rome Area in February, 1972 was 10.3%-13,600 PEOPLE OUT OF WORK. This unemployment rate was one of the highest in the United States. It included many employees who used to work in unionized shops and had to pay substantial union dues to hold their jobs. WHAT SECURITY DID THESE PEOPLE GET FROM THEIR UN- IONS? ... The recent bitter strike at the Divine Company right here in town is just one example of union IN-security. Between 1955 and 1971 , TWUA lost about 86,000 members or 42% of its total membership. Much of this loss was due to the closing or moving of companies organized by TWUA. Again picking up the theme of job security, a May 9 letter stated: Look at the THOUSANDS of dues-paying workers who lost their jobs in recent years when their unionized employers closed down or left this area. Many of you used to work for such companies. You know from experience that the former employees of these companies gained absolutely nothing from all the money they were required to pay over to the unions. In its final letter, dated May 12, the Employer stated: We hope you have not been misled by the Union. Your jobs , earnings, and benefits depend solely on your Company's ability to remain in business in this area . Judging by the experience of those other companies, [referring to five other local companies in the same industry that had closed down or moved after being unionized ] there is considerable reason to wonder whether or not unionization of Mohawk Bedding would hurt our ability to survive. Would it be sensible for you in these days of mass unemployment and inflation to take the gamble and pay union dues to boot : We think not. In addition to the foregoing, a representative of the Employer in a captive audience speech on May 16, the day before the election, informed the employees that in order to protect their jobs they must not vote for the Union. He reiterated the implied theme of the prior publications that the plant would close if the Union were voted in. In the aforementioned speech , having spoken of the past history of local plants that moved from the area after being organized by this Union, the speaker again reminded the employees of the high local unemploy- ment situation. Then, couched in the language of a disclaimer, he underscored the threat by saying: Well, I don't want to threaten you, but its very important for you to understand something. If the Union wins the election tomorrow, and if in bargaining with us they really try to make good on the fantastic figures mentioned in the leaflets, then we could all be in for serious trouble. I repeat, this is not a threat, its just a realistic opinion. A company can remain in business, especially this business, only if it is competitive. We can remain competitive only if we can keep our selling prices and our local costs fairly well in line. If our labor costs ever get out of hand, whether on account of having a Union or for any other reason, and if our ability to run this plant was crippled by the kind of unreasonable work restrictions and rules you find in some Union contracts, then, under those circumstances, there would be a question as to whether this company could remain in business here . I repeat, I am not threatening to close this plant if the Union wins the election and for that reason. I am saying that, if the Union in bargaining really tries to deliver on its fantastic promises , it could well create a serious problem for the future of this operation. Many unionized plants in this area have had trouble under the Union and I cannot assure you that Mohawk Bedding would be an exception. * w s s s Additionally we note that approximately 6 weeks before the election, Shipping Room Foreman Lazarek and employee Mathews had engaged in a conversation in the plant where Lazarek stated that ". . . if the Union had come in, Mr. Ginsburg had planned to close the corporation in Utica." The record further shows that sometime prior to the election, in answer to inquiries from two employees whether the plant could be turned into a warehouse if the Union got in, manufacturing Manager Bernson replied in the affirm- ative.2 2 Contrary to the Hearing Officer, we find that these statements, taken in the context of the entire campaign , do add to the overall picture presented to the employees by the Employer which amounted to a threat of closing the plant if the Union won the election, and therefore do not find them "isolated" as first characterized by the Acting Regional Director. B. The Additional Facts Adduced In addition to the facts established in the Board's Decision, as quoted above, certain other incidents were brought forth by counsel for the General Counsel in support of the amendments to the complaint made at the opening of the trial. On or about April 5, 1972, Oswald Anania, the Union's international representative , began the organizing drive among Respondent's employees. On the sidewalk adjacent to the main entrance to the plant and on a direct route to the parking area he engaged several employees , including Lawrence LaCombe and William Mathews, in conversa- tion regarding working conditions in the plant and suggested that they assemble other employees in the plant MOHAWK BEDDING CO., INC. 129 parking lot at 4:30 p.m. at the conclusion of the shift. As Anania was talking with these employees Howard Turner, Respondent's operations manager, walked past the group, stopped and turned, and faced them for what was estimated by Mathews and LaCombe to be several minutes.3 Upon his return from lunch later in the afternoon Turner sent for Mathews and had a conversation with him in his office which he commenced by asking the identity of the man with whom the employees were talking as he was leaving the plant. When Mathews replied that he was a union representative Turner asked him which union he was from. Mathews replied that it was the Textile Workers. Turner then asked if Mathews felt he needed a union and he replied that he needed a union and that he did not call the union representative. Turner then asked who did call him and Mathews replied that Anania had not informed him. Turner concluded the conversation by telling Mathews he was upset to see a union representative at the plant. Mathews testified that he does not recall having ever previously been summoned to Turner's office. Shortly thereafter employee Lawrence LaCombe was summoned to Turner's office and Turner asked him "who the guy was." When LaCombe replied that he did not know Turner then asked him "what the guy talked about." LaCombe told him that it was personal. This appears to have concluded the conversation. An hour and a half later a supervisor, Arnold Bernson, told LaCombe that Turner would like to see him. This time Turner stated to LaCombe that he knew that "the guy downstairs was a union leader and he knew that there was going to be a meeting in the parking lot at 4:30." Prior to these two sessions in Turner's office LaCombe testified that he had never before been called to the office. The foregoing findings are based upon the credited testimony of employees Mathews and LaCombe. As previously indicated (fn. 3) I do not credit Turner. Thus, I do not accept his account of his interview with Mathews wherein he would confine the conversation to asking the identity of Anania. Neither would I accept his denial that he had any conversation in his office with LaCombe. This denial was itself so vacillating that in my judgment it discolors the rest of Turner's testimony. Thus, when asked on direct examination if he called LaCombe to his office Turner first digressed to state it was not unusual to call employees to his office, and then categorically denied that he had summoned LaCombe on this occasion. Thereafter, on cross-examination, Turner testified that he could have called LaCombe to his office, but that he didn't recall having done so, "but it's possible." With such a manifestation of uncertainty, understand- able with incidents occurring two years previously, and incidents with which Turner was no longer concerned,4 I am persuaded that this same uncertainty permeated his whole recollection of the events of April 5, 1972. I accordingly do not credit Turner's denial of statements and conduct attributed to him by witnesses whom I consider to be credible. C. Analysis and Conclusions It is apparent that the General Counsel seeks reconsider- ation of a case already decided by the Board in 204 NLRB 277. Thus, in his brief to me the record evidence in that case is discussed as if no findings had ever been made with respect to it. What he appears to be seeking, by readjusting the frame work of the case, is to include two additional incidents not previously presented to the Board, with a view to securing as a substitute for the ordered election an instant recognition by means of union authorization cards. For reasons which are apparent, I have made no findings with respect to the cards submitted for this purpose. 1. Interference, restraint, and coercion The Board itself has already considered this case and its decision has been arrived at only after several separate investigations, a hearing, and recommendations made to it by the Acting Regional Director and a Hearing Officer, respectively. Upon these facts the Board has concluded as follows: (204 NLRB at 278). The Supreme Court has set out the standard by which we are to determine whether or not an employer's prediction of the possible effects of unioni- zation is permissible under the Act. [The employer] may . . . make a prediction as to the precise effect he believes unionization will have on his company. In such a case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable consequences beyond his control or to convey a management decision already arrived at to close the plant in case of unionization. . . . If there is any implica- tion that an employer may or may not take action solely on his own initiative for reasons unrelated to economic necessities and known only to him, the statement is no longer a reasonable prediction based on available facts but a threat of retaliation based on misrepresentation and coercion, and as such without the protection of the First Amend- ment. We therefore agree with the court below that "[c ]onveyance of the employer's belief, even though sincere, that unionization will or may result in the closing of the plant is not a statement of fact unless, which is most improbable, the eventuality of closing is capable of proof." ;[NLRB. v. Gissel Packing Co., Inc.,395 U.S. 575, 618 (1968).] Through the Employer's repeated reference to the Union causing other plants to close and the high unemployment situation locally, the employees could reasonably infer that their employment would be jeopardized if they supported the Union and that the Employer was willing to use its economic power to make the threat an actuality. General Electric Wiring Devices, Inc., 182 NLRB 876 [1970]. The implication that such actions would be in retailiation for supporting 3 Turner denied having stopped or even having paused to observe these people For reasons to be stated hereafter I do not credit this demal. 4 Turner has not been in Respondent's employ since October 1972. 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union is evident from the way it chose to convey its message. Thus, the Employer spoke of other local companies that moved or went out of business after being unionized and clearly implied that it would do the same, but failed to base its implication on "demonstrably probable consequences beyond [the Employer's] control." Nowhere in its letters or speech were there presented any cost comparisons or financial data of any kind which might possibly provide a factual basis for proving that the plant would be forced to close if the Union represented the employees. We find that the Employer's campaign speeches and literature as well as the two statements related above,3 taken as a whole, created an atmosphere of apprehen- sion in the minds of the voters and destroyed the laboratory conditions necessary for the conduct of a free and fair election. 9 Member Penello would not find that the speeches and literature alone constitute grounds for setting the election aside. However, he joins in this decision because he finds that when considered with the statements made by Bernson and Lazarek a different conclusion is warranted. For those later statements clarify and amplify the previous somewhat ambiguous observations. It has long been recognized that statements and words which, standing alone, might be noncoercive, take on the character and quality of coercive comments which are part of the context in which the former occur. See Oak Manufacturing Company, 141 NLRB 1323, 1325. At this juncture it is to be noted that conduct found to be so objectionable as to warrant the setting aside of an election, as the Board has here decided, does not thereby constitute an unfair labor practice. For "matters which are not available to prove a violation of law, and therefore to impose a penalty upon a respondent, may still be pertinent, if extreme enough, in determining whether an election satisfied the Board's own administrative standards." 5 In the representation case decision quoted above , however, the Board has determined that the requiste "laboratory condi- tions" have not been achieved . But it has also registered in unmistakable language the guidelines for whomever, such as me, would make recommendations as to the unlawful character of the conduct in the context of a Section 8 proceeding as the instant one. Thus, the Board concludes that "employees could reasonably infer that their employ- ment would be jeopardized," and that "the Employer was willing to use its economic power to make the threat an actuality," and it finds such action to imply retaliation. Relating these conclusions to the cited portions of the Supreme Court's decision in the Gissel case, as the Board does, it is obvious that the free speech strictures of Section 8(c)s are not present in any form. Absent statutory re- straints and relying strictly on the conclusions already reached by the Board, it is clear without need of further citation of authority that the inferences of jeopardy to employment, the implication of retaliation, and the threat of the use of economic power, which have already been found, 8 General Shoe Corporation, 77 NLRB 124, 127 ( 1948). s Sec. 8(c) of the Act provides as follows: The expressing of any views, argument, or opinion, the dissemination all represent the variety of conduct consistently found to interfere with, restrain, and coerce employees in the exercise of rights guaranteed by the Act. In these respects, therefore, I conclude and find that Respondent has violated Section 8(a)(1). The additional facts found herein present further illustration of Respondent's unlawful intent. Clearly Plant Manager Turner's interrogations of employees Mathews and Lacombe constitute intrusions by Respondent into the self-organizing efforts of its employees, an area proscribed by the Act. So also Turner's statement to Lacombe to the effect that he had learned that their visitor was a union representative and that a meeting was scheduled for later in the day. This statement made it abundantly clear to this employee that Respondent was aware of the Union's activities among its employees. Citation of authority is not necessary to conclude and find as I do that such interrogation of Mathews and Lacombe and the impressions of surveillance conveyed to Lacombe, all by Respondent's plant manager in his official capacity, constituted the interference, restraint, and coercion of employees proscribed by Section 8(a)(1) of the Act, and I so conclude and find. 2. The alleged refusal to bargain It is conceivable, of course, that recent developments, newly discovered evidence, or serious procedural flaws would justify the Board's different treatment of the representation issues in this proceeding in their new context. But no flaw has been detected in the procedure that has been followed. Nor can it be claimed that any evidence adduced at the trial before me constituted either a recent development or was newly found. On the contrary, the incidents on the parking lot and in Turner's office which I have found to violate Section 8(a)(1) occurred 6 weeks before the election on April 5, 1972, and 5 days before the petition was filed Case 3-RC-5414, and approximately the same length of time before the first of the incidents considered by the Board-Lazarek's alleged threat of possible plant closing found to have been made 4 to 6 weeks before the election (April 5 to 19). These belatedly alleged incidents were known to the Acting Regional Director who commented upon them in his recommendations to the Board, thus: During the course of the investigation, the Petitioner alleged the Employer interrogated employees regarding a discussion with a union representative on or about April 5 and interrogated an employee on or about May 18, in an effort to ascertain whether the Petitioner was starting legal proceedings against the Employer. Since both alleged acts of interrogation occurred outside the critical period, they will not be considered as objection- able conduct [citing Goodyear Tire and Rubber Compa- ny, 138 NLRB 453 ]. It is apparent from the formal documents in case thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any provision of this Act, if such expression contains no threat of reprisal or force or promise of benefit. MOHAWK BEDDING CO., INC. 131 3-RC-5414 that the Stipulation for Certification Upon Consent Election approved by the Acting Regional Director was issued pursuant to Rule 102.62(b) of the Board's Rules and Regulations, Series 8, as amended, inasmuch as the Acting Regional Director's determinations were not final ones as required by Subsection (a) of the Rule, but were in the form of recommendations to the Board as required by Subsection (b). All that followed thereafter, including the Hearing Officer's report and the Board's Decision, both referring to procedures pursuant to Rule 102.69,7 which in turn refers Rule 102.62(b), make it clear that final authority in the matter rested in the Board, and the Acting Regional Director's role was simply to recommend. Such being the legal posture of the case on June 30, 1973, when the Board issued its Order and Direction of Second Election I am concerned that the Acting Regional Director reinjected himself into the matter on February 22, 1974, by approving the withdrawal of the petition, the document which initiated the case in the first place. Clearly this action had the intended effect of nullifying all that had transpired before, however much future reinstatement of the case was assured. But inherent in such nullification is the setting aside of the Board's Order. Nowhere in the Board's Rules and Regulations do I find authority vested by the Board in subordinate offices or officers to set aside its decisions or to abrogate its orders. Nor in the instant case was any authority specially conveyed to the Acting Regional Director either explicitly or otherwise. On the contrary he states in his letter of February 22, to Respondent that the petition was withdraw "with my approval." Under all circumstances, then, I can draw no other conclusion but that the withdrawal of the petition in Case 3-RC-5414 was the implied abrogation of the Board's Direction of a Second Election, and according- ly, an ultra vires act of no force and effect. As the Board's Direction of Second Election still remains in force I find it premature to determine the significance as to the possible refusal to bargain violation of the several newly added incidents of unlawful conduct which I have found herein. If, when added to the findings upon which the Board based its Direction of a Second Election, which I have found likewise to violate Section 8(a)(l), the Board sees fit to reconsider its Decision in Case 3-RC-5414 it would then be appropriate for me to assist the Board by recommendations of my own. Meanwhile, in the face of the Board's outstanding order and direction I would consider myself presumptious if I were to consider the appropriateness of a bargaining order at this time. I accordingly recommend the dismissal of so much of the 7 Pertinent excerpts from the Board's Rules and Regulations are attached hereto as Appendix B [Sec. 102 69(f), omitted from publication]. 8 Prior to the trial and thereafter at its commencement Respondent's counsel requested of counsel for the General Counsel that he produce for Respondent's inspection a copy of a memorandum issued by the Division of Advice of the Office of the General Counsel relating to the instant case. Insofar as my decision rejects the theory advanced by counsel for the General Counsel, which is presumably the subject matter of the administra- tive advice memorandum being sought , I would find the production of the document unnecessary at this time. In any event, however, consistent with settled policy of the Board and with all due respect to the United States Court of Appeals for the District of Columbia Circuit, I will not direct the complaint herein as alleges a refusal to bargain in violation of Section 8(a)(5).8 IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respondent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It has been found that Respondent by acts and statements has interfered with, restrained, and coerced its employees in violation of Section 8(axl) of the Act. I shall accordingly recommend that it cease and desist therefrom and from in any like or related manner interfering with, restraining, or coercing its employees. Affirmatively I shall recommend that it post appropriate notice of compliance with such order as the Board issues. With respect to so much of the complaint as alleges that Respondent unlawfully refused to bargain with the representative of its employees I shall recommend that such allegations be dismissed. Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERS Respondent Mohawk Bedding Company, Inc., its offi- cers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) By statements of its supervisors, posted notices, letters and speeches, threatening its employees with the closing of its plant or a conversion of it to a warehouse, if they select Textile Workers Union of America, AFL-CIO, or any other labor organization to represent them. (b) Unlawfully interrogating its employees concerning the aforementioned Union and their own and their fellow employees' union activities and sympathies. (c) Implying to employees that their union activities are under surveillance. (d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed them by the Act. 2. Take the following affirmative action which it is deemed will effectuate the policies of the Act: production of the document being requested upon authonty of Sears Roebuck & Company v N LR B, No 72-1870, July 27, 1973 (not reported), until such time as the Board complies with the court's order or otherwise reverses its policy in the matter, or if directed to do so by the United States Supreme Court Iowa Beef Packers, Inc, 144 NLRB 615 (1963). 9 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its fmdmgs, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Post at its Utica, New York, facility the notice attached hereto as Appendix C.10 Copies of said notice on forms provided by the Regional Director for Region 3, shall after being duly signed by the Respondent be posted immediately upon receipt thereof in conspicuous places, and be maintained for a period of 60 consecutive days. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify said Regional Director in wasting, within 20 days from the receipt of this Decision what steps shall be taken therewith. IT IS FURTHER ORDERED that so much of the complaint herein as alleges a violation of Section 8(a)(5) be, and thereby is, dismissed. 10 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX C NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten you, by letters, notices or speeches or statements of our officers or supervisors, that we will close the plant or convert it to a warehouse, if you select the Textile Workers Union of America, AFL-CIO, or any other labor organization to represent you. WE WILL NOT unlawfully question you about the Textile Workers Union of America, AFL-CIO, or any other labor organizations about your union activities and sympathies. WE WILL NOT give you the impression that your union activities are being spied upon. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of rights guaranteed you by the National Labor Relations Act. All of you, our employees, are free to remain, or withdraw from membership in, or become or refrain from becoming members of Textile Workers of America, AFL-CIO, or any other labor organization. MOHAWK BEDDING CO., INC.