Duvernoy & Sons, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 538 (N.L.R.B. 1969)

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.