447 F.

2d 112
77 L.R.R.M. (BNA) 2820, 65 Lab.Cas. P 11,862

LUXURAY OF NEW YORK, DIVISION OF BEAUNIT

CORPORATION, Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent.
Nos. 619, 620, Dockets 35334, 35485.

United States Court of Appeals, Second Circuit.

Argued March 22, 1971.
Decided June 30, 1971.

Andrew C. Partee, Jr., Kullman, Lang, Keenan, Irman & Bee, New
Orleans, La., for petitioner.
Corinna Lothar Metcalf, Atty., Washington, D.C. (Arnold Ordman, Gen.
Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel MalletPrevost, Asst. Gen. Counsel, Thomas E. Silfen, Atty., Washington, D.C.,
on the brief), for National Labor Relations Board.
Before WATERMAN, KAUFMAN and HAYS, Circuit Judges.
IRVING R. KAUFMAN, Circuit Judge:

A petition for review and cross-application for enforcement of an order of the

National relations Board are before us. The order rests in the main upon the
Board's finding that petitioner Luxuray of New York Division of Beaunit
Corporation committed three unfair labor practices in connection with an
organizing campaign at Luxuray's Fort Plain, New York plant. The campaign,
undertaken by the International Ladies Garment Workers' Union in the early
months of 1969, resulted in the union's defeat in a representation election held
September 19, 1969. Subsequently, as we will discuss in more detail, this
election was set aside and a new election has been ordered. The discord
between the parties here over each facet of the Board's order requires that we
refer to several basic policies of labor relations law for a principle of resolution,
since the facts are not in dispute.

I.
2

As the first stage of its organizing effort, the union named several employees to
an organizing committee. This committee met several times during February
and early March, 1969. One of these meetings was held at the home of a Fort
Plain employee and committee member, Mrs. Catherine Coppernoll. In their
testimony before the trial examiner, two representatives of the company, Ernest
Eely, a supervisor, and Donald Shults, Plant Manager at Fort Plain, admitted
that they conducted surveillance of this meeting. At the instance of Shults, who
wanted 'to find out how many people were going to attend the meeting,' Shults
and Eely drove to Mrs. Coppernoll's home in a borrowed car, to avoid being
recognized, and parked nearby at a convenient vantage point for about fortyfive minutes. After identifying at least two employees arriving for the meeting,
Shults and Eely drove past the Coppernoll house in an apparent fruitless
attempt to identify other employees' cars, and then returned to Fort Plain. No
employee ever learned of the surveillance. The little information garnered by
the expedition was never used, and indeed soon became superfluous when in
early March the union volunteered to management the names of the eleven
members of the organizing committee. Shults testified that he subsequently
learned that the surveillance was improper and was not to be repeated, and in
fact it was not. Admittedly, the surveillance had no effect whatever on the
union's organizing efforts and played no part in the union's eventual election
defeat.

Luxuray does not seek to overturn the conclusion of both the Trial Examiner
and the Board (nor did it make such effort before the Board) that the
surveillance constituted an unfair labor practice in contravention of Section 8(a)
(1) of the National Labor Relations Act, see, e.g., N.L.R.B. v. Standard Forge &
Axle Co., 420 F.2d 508, 510 (5th Cir. 1969), cert. denied, 400 U.S. 903, 91
S.Ct. 140, 27 L.Ed.2d 140 (1970); N.L.R.B. v. Comfort Inc., 365 F.2d 867, 870
(8th Cir. 1966). Rather, the company calls upon us to exercise our narrow
power to review the Board's expert choice of an appropriate remedy, see
N.L.R.B. v. Gissel Packing Co. 395 U.S. 575, 612 n. 32, 89 S.Ct. 1918, 1939,
23 L.Ed.2d 547 (1969),1 and hold that the single episode of surveillance proved
will not as a matter of alw support a cease-and-desist order.

In enforcing this aspect of the Board's order, we do not pass judgment on the
propriety of decisions of two Circuits, International Union, United Auto,
Aerospace and Agr. Implement Workers of America v. N.L.R.B., 427 F.2d
1330 (6th Cir. 1970); International Wood-workers of America, AFL-CIO,
Local 3-10 v. N.L.R.B., 127 U.S.App.D.C. 81, 380 F.2d 628, 630, 631 (D.C.
Cir. 1967), holding that the mandatory language of Section 10(c) of the Act

means just what it appears to say, namely that whenever the Board finds an
unfair labor practice it 'shall issue' an appropriate cease-and-desist order. The
efficacy of a remedial order is not measured only by the specific gravity of the
offense that is its progenitor. We may assume, without deciding, that the Board
in an appropriate case can balance the detrimental effects of an order if issued
on labor-management relations, and refuse to issue one. The Board here
informs us that the order is appropriate to protect against the resumption of
previous unlawful activity. Since, following the union's election defeat, the
election was set aside (for reasons which will appear below), the Board cannot
be faulted for attempting to ensure that the reelection is not also infected with
the unfair labor practices which occurred during the first campaign. By its
order the Board guarantees to the union that it will not have to start all over
again at a new hearing before a Trial Examiner to secure a remedy should the
employer repeat its unlawful surveillance. We cannot say that the Board's
evaluation is without legal justification.
II.
5

Following receipt of the employees' names who were members of the union's
organizing committee, the management at Fort Plain held several meetings
during working hours. At some of these, the management made known its
general anti-union attitude, and it appears that the members of the organizing
committee as well as other employees thought to be pro-union were excluded
from meetings at which the union's organizing drive was discussed. In addition,
company officials distributed or mailed to employees, or attached in their
paychecks, a number of anti-union propaganda leaflets with the often repeated
refrain that unions cause employees more trouble, primarily because of strikes,
than they are worth.

The only issue before us is whether Luxuray violated Section 8(a)(1) of the Act
by showing to employees at one of the anti-union meetings from which prounion employees were excluded, a film, which might appropriately be
characterized as propaganda, entitled 'And Women Must Weep.' Prior to
showing the film, Sidney Foreman, Director of Manufacturing of the Consumer
Product Division of Beaunit Corporation read to the employees a prepared
written statement to the effect that the events depicted were true although the
film was a dramatization by professional actors. Foreman also observed that the
setting of the strike portrayed in the film was a small town like Fort Plain and
warned that similar events 'could happen to us people, our community, our
friends.'

The film itself has apparently become something of a standard tool in antiunion

campaigns. The Fifth Circuit has accurately described its contents:

It is in color. It tells the story of a strike in Princeton, Indiana. The actors and
actresses are professionals. The film is narrated by one of the actresses who
plays the part of the wife of a minister whose parishioners are involuntarily
involved in the strike as members of the union. They are among the union
members who are dictatorily mistreated by the majority of the union members.
The majority provoked the strike to serve the wrongful ends of one union
officer. The minority of the members who oppose the strike are deprived of
their rights by the majority. The strike was called without consulting the
International.

Among other baneful events, the film shows picket line violence, the minister
being jeered, smashed windshields, slashed tires, and upturned automobiles, all
caused by the majority members of the union. The minister's wife is threatened
by an anonymous caller who announces that her home will be the next to be
bombed. The minister is shown with a rifle, sitting through the night, in an
effort to protect his family. The climax of the fray is reached when the strikers
fire into the trailer home of a dissenting union member and a bullet strikes his
baby in the head. The film closes with the end of the strike and with the
announcement that the baby will live. The closing words of the narrator are:
'All you have to do is ask yourself, could my town be next? And if you think
that the answer of what happened to us couldn't happen to you, remember that
is what we thought in the beginning. Must you wait to come face to face with
tyranny as we did.' Southwire Co. v. N.L.R.B., 383 F.2d 235, 239-240 (5th Cir.
1967).

10

By a vote of two to one, the three-member Board panel agreed with the Trial
Examiner that by showing the film, the company violated Section 8(a)(1) of the
Act, which prohibits an employer 'to interfere with, restrain, or coerce
employees in the exercise' of their Section 7 rights. As a corollary, the Board
found the film unprotected by the 'free speech' amendment of the Labor
Management Relations Act of 1947, Section 8(c) of the N.L.R.A., which
provides that speech 'shall not constitute or be evidence of an unfair labor
practice * * * if such expression contains no threat of reprisal or force or
promise of benefit.' Relying primarily on N.L.R.B. v. Gissel Packing Co., 395
U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969), the Board appears to advance
two theories under which showing the film might be found unlawful under the
Act: (1) That, especially in light of Foreman's introductory remarks, the film
impliedly made 'representations as to the dire results of unionization which are
both factually unsupportable and coercively misleading.' (2) That the violence
and misconduct depicted in the movie is unlikely to occur absent either

knowing acquiescence or active encouragement by the employer-- thus, by this

latter theory, the employer in effect threatened to encourage union violence, for
example by refusing to bargain collectively, should the instant union win the
election. We believe that both theories fail.
11

Gissel is distinguishable in a respect that this court has repeatedly emphasized

as a particularly important factor in determining whether employer antiunion
statements constitute an unfair labor practice. In Gissel, the employer during a
union organizing campaign pictured the company as in a precarious economic
posture and 'predicted' that the union, if it won the election, would strike for
unreasonable demands, with the probable result that the plant that was the
target of the union drive would have to be shut down and employees would be
thrown out of work. The Court agreed with the Board that the employer had
threatened, in none too veiled a fashion, to 'throw employees out of work
regardless of the economic realities.' The Court held that although 'an employer
is free to communicate to his employees any of his general views about
unionism or any of his specific views about a particular union' he must be
considerably more cautious if he ventures to 'make a prediction as to the precise
effects he believes unionization will have on his company. In such a case * * *
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 * * *.' 395 U.S. at 618, 89 S.Ct. at 1942.

12

Gissel accords with previous decisions in this Circuit condemning 'a threat
disguised as a prediction,' N.L.R.B. v. Miller, 341 F.2d 870, 873 (1965), where
the employer has control over whether dire consequences 'predicted' will come
to pass. Unless the employer can demonstrate objectively that such
consequences are the likely result of economic necessity or the application of
sound business practice to antecedent facts beyond the employer's control, the
'prediction' inevitably takes on the character of a self-fulfilling prophecy and
becomes the functional equivalent of a 'threat of retaliation or force,'
unprotected by Section 8(c). See N.L.R.B. v. Yokell, 387 F.2d 751 (2d Cir.
1967).

13

The showing of 'And Women Must Weep' undoubtedly illustrated the

management's anti-union attitude more graphically than did its speeches and
pamphlets. But a mere expression of anti-union sentiment by an employer is an
exercise of free speech protected by at least Section 8(c) and most likely by the
First Amendment. The film, in the context of its showing, cannot even be said
to have implied a 'prediction.' A fairer characterization would be that by
showing the film, the employer expressed an opinion that in the past local
union officials have abused their power and called wild-cat strikes to the

detriment of the union membership, and that similar abuses might accompany
unionization in the future, particularly at Fort Plain. The Board does not assert
that local unions have in fact never been corrupted and their power never
abused to advance the selfish ends of their leaders. Thus, the film is a one-sided
brief against unionism, devoid of significant rational content perhaps, but
nonetheless not reasonably to be construed as threatening retaliation or force.
Nowhere in the film does the employer or his representative appear or make
any representation. The film, in short, may be characterized as an expose of
what happens to union members when dominated by ruthless and unthinking
union officials.
14

Moreover, the union does not contend that it lacked the opportunity to make its
own case. In fact, it made use of the film, entitled 'Anatomy of a Lie,' designed
to refute 'And Women Must Weep.' 'Anatomy' apparently has been shown by
other unions in the past to neutralize the effect of its anti-union counterpart. It is
primarily the responsibility of employees, and not of the Board, to evaluate the
merit of competing propaganda. 'Congress did not intend the Board to act as a
censor of the reasonableness of statements by either party to a labor controversy
* * *.' N.L.R.B. v. Golub Corp., 388 F.2d 921, 928-929 (2d Cir. 1967). See also
N.L.R.B. v. S & H Grossinger's Inc., 372 F.2d 26 (2d Cir. 1967) (opinion by
Hays, C.J.). The import of a threat of force by an employer with power to inflict
severe economic injury on a disfavored employee lies largely in the manifest
fact that such threats are unanswerable by the union. That is not the case here.
For the same reason, the present case is distinguishable from International
Union of Electrical, Radio and Machine Workers v. N.L.R.B., 289 F.2d 757,
762-763 (D.C. Cir. 1960), relied upon by the Board, where the court agreed
with the Board that the employer violated Section 8(a)(1) by asserting
'categorically' and without factual justification that two of the employer's
biggest customers had determined not to do business with a union company
'because of the fear of shortage of products due to strike.' Although we express
no view as to the merit of the decision in I.U.E., categorical assertions of
particular facts bearing directly on the probable consequences of a specific
organizing effort are unanswerable by union appeals to the abstract values of
collective action, and thus are more apt to distort employees' free choice based
on a rational evaluation of competing views. See G.P.D., Inc. v. N.L.R.B., 406
F.2d 26 (6th Cir. 1969) (distinguishing the categorical assertions in I.U.E. from
'prediction(s) of a probable consequence over which (the employer) had no
control' and which were therefore protected by Section 8(c)).

15

For these reasons, we find ourselves in agreement with the two other Circuits
that have previously considered the lawfulness of an employer's showing of the
film 'And Women Must Weep' and found no unfair labor practice, Southwire

Co. v. N.L.R.B., 383 F.2d 235 (5th Cir. 1967); N.L.R.B. v. Hawthorn Co., 404
F.2d 1205 (8th Cir. 1969). The Eighth Circuit has reconsidered and reaffirmed
its decision in Hawthorn following the Supreme Court's decision in Gissell,
Kellwood Co., Ottenheimer Division v. N.L.R.B., 434 F.2d 1069 (1970).
III.
16

Pursuant to an amended Direction of Election issued by the Board's regional

office, a secret ballot was held on September 19, 1969, which the union lost by
a vote of 68 to 20. Immediately after the ballots were counted, Vice President
Reinhardt of Beaunit Corporation delivered the following speech to the Fort
Plain plant employees:

17

(1) I am very glad to announce the results of the election. The company won
the election by a score of 68 to 20. We appreciate your loyalty and have taken
this as a vote of trust and confidence in the company. (2) As we have told you
before, so long as this union matter was pending, we were not able to make any
changes with regard to wages or benefits; however, now that the union question
is behind us, I am very happy to announce that effective Monday morning,
September 22, there will be: (a) 5 percent wage increase (b) July Fourth paid
holiday all year, over and above vacation pay (c) a retirement program which
will be fully explained to you by Mr. Drumm and Mr. Shillinglaw at a later
date. (d) Because of our group discussions, I am aware of the numerous
problems that need to be solved, and I can assure you we will diligently pursue
a solution to these problems. (3) We are very happy to be able to make this
announcement. We are extremely glad to have this union thing behind us, and
we appreciate your overwhelming support in the election. (4) I can assure you
you will never have a reason to regret keeping the union out of Fort Plain.

18

Thank you very much for your time.

19

On October 6, a Regional Director of the Board found merit in one of several

objections to the election filed by the union and accordingly set the election
aside and directed that a new election was to be held at a time to be designated.
Further arrangements for the re-election have been deferred pending the
disposition of the present proceeding. The ground for setting aside the first
election was the employer's failure to comply with directions by the Director
dated July 1 and August 26, 1969, to file a list with the names and addresses of
all employees eligible to vote in the election, pursuant to Excelsior Underwear
Inc., 156 N.L.R.B. 1236, modified by N.L.R.B. v. Wyman-Gordon Co., 394
U.S. 759, 89 S.Ct. 1426, 22 L.Ed.2d 709 (1969). The lists were ordered to be

filed by July 9 and September 3 according to the terms of the respective orders,
but none were ever filed.
20

The Board affirmed without comment the Trial Examiner's conclusion that the
company's extension of substantial new benefits on the day of its election
victory was deliberately calculated to interfere with the re-election and hence
violated Section 8(a)(1), N.L.R.B. v. Exchange Parts Co., 375 U.S. 405, 84
S.Ct. 457, 11 L.Ed.2d 435 (1964). The question on this review is not whether
we would have interpreted the employer's intention as did the Board in the first
instance, but whether the Board's resolution of this factual issue is supported by
substantial evidence on the record considered as a whole, Universal Camera
Corp. v. N.L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).

21

The company relies upon several factual distinctions between this case and
Exchange Parts. Primary among these is the circumstance that the
announcement of benefits in this case was made after the election, not before as
in Exchange Parts, and thus is similar to N.L.R.B. v. Ambox, Inc., 357 F.2d 138
(5th Cir. 1966), where the court found no unfair labor practice in the employer's
post-election announcement of benefits. The company also argues that the
decision to extend benefits was reached by Beaunit officials several months
before the election and were at that time extended to other Beaunit plants, but
not Fort Plain. According to undisputed testimony before the Trial Examiner,
announcing the new benefits was delayed at Fort Plain pending the outcome of
the election to avoid violating Exchange Parts. The upshot of the argument is
that by ruling a post-election announcement to be illegal, the Board leaves
employers with a Hobson's choice: an unfair labor practice will be found
regardless of when benefits are announced, see N.L.R.B. v. Dorn's
Transportation Co., 405 F.2d 706 (2d Cir. 1969).

22

But to accept the employer's argument would be to raise the single element of
timing-- whether an announcement came before or after an election-- to an
unrealistic per se status. The Company's intent is to be construed from the
record as a whole. There was no apparent compelling business purpose for
coupling the announcement of benefits, as did Reinhardt, with his victory
speech, and thereby inevitably impressing employees with the idea that a union
defeat spells more pay, more vacations, and higher pensions.

23

That impression was probably magnified here, where it appears that so

generous a package was practically unprecedented, at least at the Fort Plain
plant. One employee testified without contradiction that in her ten years at the
plant, the company extended no wage increases or other benefits except insofar
as required by successive increases in the legally required minimum wage. Cf.

Imco Container Co. of Harrisonburg v. N.L.R.B., 346 F.2d 178 (4th Cir. 1965).
Also, the motives behind the company's delay of the announcement until after
the election would take on an ambiguous hue at best, quite apart from the
manner of the announcement, in view of the fact that the company's conduct
made a union challenge to the validity of the election a certainty, and made a
re-election almost as inevitable, by its refusal timely to supply the Excelsior
list. See N.L.R.B. v. Ralph Printing and Lithographing Co., 379 F.2d 687 (8th
Cir. 1967).
24

Were we to grant the petition to review under these circumstances, we would

open the field for uninhibited evasion of Exchange Parts. That the employer
might also have violated Exchange Parts had it announced the benefits prior to
the September election does not make out a case that the employer was
whipsawed by the Board's policy. As a result of the employer's own failure to
comply with the Regional Director's directives, the dispute over representation
was not settled by the September election. Moreover, any hardship that might
be caused to employees had the company withheld announcing the benefits at
the Fort Plain plant until after the re-election, could have been alleviated
simply enough by the company making the benefits retroactive to September
19.

25

Finally, that the benefits were not selectively extended only to Fort Plain
employees does not conclusively imply, or even suggest, that the Company's
motives were innocent. The most that can be said is that if the opposite were
true, that is, if a selective decision to improve the lot of the Fort Plain workers
had been arrived at during the organizational campaign there, a finding of bad
faith would have been very difficult to resist.

26

For the reasons stated, we enforce the Board's order, 2 except that we grant the
petition to review and deny enforcement of Paragraph 1(c) of the Board's order,
and we direct that the second paragraph of the 'Appendix' to the order ('Notice
to Employees') be stricken.

27

WATERMAN, Circuit Judge (concurring in part and dissenting in part):

28

I would deny any enforcement of any portion whatever of the Board's order. I
fully concur in my brother Kaufman's discussion of the film 'And Women Must
Weep' and hold with him that the showing of it under the circumstances under
which it was shown was not a violation of the Act. The Union also utilized the
silver screen and, on its part, treated those employees willing to be entertained
to a showing of 'The Anatomy of a Lie.'1

29

Both of my brothers vote to enforce the remainder of the Board's order on the
ground that the Board properly found, as its Examiner recommended, that the
grant of economic benefits after the Union had been soundly defeated at the
Board-supervised representation election was a violation of Section 8(a)(1), and
that the Board properly ordered, contrary to its Examiner's recommendation,
that the single instance of surveillance (admitted by the employer to be a
violation) warrants a cease and desist order.

30

Inasmuch as a second election was not clearly imminent at the time that the
increase in benefits was announced by Luxuray, I cannot find a violation of
Section 8(a)(1) in the timing of that announcement. Indeed, to so find a
violation appears to ignore the prime interests of the employees. It is
undisputed that the employer here had put into effect these same increases at
other plants where unionization activity did not proscribe it, and that the delay
in announcing the increases to the Fort Plain employees was in all likelihood
motivated by a desire to avoid a charge of an unfair labor practice under the
doctrine of NLRB v. Exchange Parts Co., 375 U.S. 405, 84 S.Ct. 457, 11
L.Ed.2d 435 (1964). To construe the Exchange Parts doctrine, as the Examiner
appears to do, to require the employer to refrain from announcing and
implementing pay increases until after all aspects of a union organizational
campaign have been resolved, a process which often consumes years, twists the
Exchange Parts doctrine into an instrument to punish employees for union
organization. The doctrine should not bar grants of economic benefits after the
employees have had a full opportunity to ballot secretly on whether they wish
unionization. Quite obviously the purposes of the Act are not furthered by
finding a violation of Section 8(a)(1) in this context.2

31

Moreover, I fail to see how the single instance of surveillance by the employer's
supervisors, a surveillance which the employees never knew about, which was
never followed up or pursued by the employer, and which did not interfere with
the organizational activity of the employees, warrants the issuance of a court
cease and desist injunction order. Of course, there would be interference with
employees' organizational rights if any employee were aware of the
surveillance, or if the employer used the information gained in such
surveillance to punish union organizers or to influence employees against
unionization; but these factors justifying a cease and desist order are totally
absent here. Admittedly, Luxuray does not contest the Board's finding that this
surveillance was a violation of the Act, even though I seriously question that it
really was; Luxuray only argues that a remedial order is not warranted. In this
posture, we cannot properly reverse the Board's finding of a violation on this
issue, but even if a violation is admitted, I believe that we should approach the
issuance of a remedial order as the Examiner would approach it and that we

should exercise our discretion to deny the Board's request for relief on the
grounds that the facts indicate that this violation was de minimis.
32

HAYS, Circuit Judge (concurring in part, dissenting in part):

33

I concur in the opinion of Judge Kaufman with respect to points I and III but
dissent from the majority's determination that the showing of the film 'And
Women Must Weep' was not a violation of Section 8(a)(1) of the Act.

34

We are not called upon to decide whether the showing of this film would
interfere with, restrain or coerce United States circuit judges. (See NLRB v.
Golub Corporation, 388 F.2d 921 (2d Cir. 1967) (dissenting opinion)). The
question is what effect the film would be likely to have on the employees of
Luxuray. In answering this question this Court is required to give great weight
to the expertise of the Labor Board. The Board is in a far better position than
we are to judge what effect the film would have. '(A) reviewing court must
recognize the Board's competence in the first instance to judge the impact of
utterances made in the context of the employer-employee relationship * * *.'
NLRB v. Gissel Packing Co., 395 U.S. 575, 620, 89 S.Ct. 1918, 1943, 23
L.Ed.2d 547 (1969).

35

Gissel holds that despite the protection of Section 8(c), the Board can properly
find that an employer has committed an unfair labor practice, not only if he
makes overt threats, but also if he makes a 'prediction' with respect to the effect
of the actions of a third party when the prediction is not 'carefully phrased on
the basis of objective fact to convey an employer's belief as to demonstrably
probable consequences beyond his control * * *.' Id. at 618, 89 S.Ct. at 1942.
As the First Circuit has recently said, Gissel deals with the situation where
'consequences not within the control of the employer might be described as
probable or likely, when in fact there was no objective evidence of any such
likelihood. This would not be a retaliatory threat, but it would be an improper
threat nonetheless.' NLRB v. C. J. Pearson Co., 420 F.2d 695 (1st Cir. 1969).
'And Women Must Weep' does not deal with 'objective fact' or 'demonstrably
probable consequences.' It contains grossly melodramatic distortions which the
employer not only did not attempt to verify, but which he magnified by telling
the employees that the incidents pictured in the film were 'actually true' and that
what 'happened in that movie could happen to us people, our community, our
friends.'

36

The Board seems to me to have been acting well within its powers when it
found that by showing this film to a captive audience of people who were

economically dependent on the employer and who had a 'necessary tendency *

* * to pick up intended implications of the (employer) that might be more
readily dismissed by a more disinterested ear,' NLRB v. Gissel Packing Co.,
supra, 395 U.S. at 617, 89 S.Ct. at 1942, the employer was in fact
communicating a threat of retaliatory action. The Board's view that the film, in
the employer-employee context, implies that the company will by its behavior,
act in a way that will bring about the type of confrontation depicted there, is by
no means so unsupportable as to justify setting aside the Board's order.
37

An employer can easily avoid committing this type of unfair labor practice. All
he has to do is to 'avoid coercive speech simply by avoiding conscious
overstatements he has reason to believe will mislead his employees.' NLRB v.
Gissel Packing Co., supra at 620, 89 S.Ct. at 1943.

38

I would enforce the Board's order in full.

'In fashioning its remedies under the broad provisions of 10(c) of the Act (29
U.S.C. 160(c)), the Board draws on a fund of knowledge and expertise all its
own, and its choice of remedy must therefore be given special respect by
reviewing courts.'

On March 16, 1970, the Trial Examiner issued the following Recommended
Order:
Respondent Luxuray of New York Division of Beaunit Corporation, its
officers, agents, successors, and assigns shall:

Cease and desist from:

(a) Promulgating any illegal rule forbidding union solicitation by union
adherents in the plant.
(b) Granting improved benefits, wage increases and paid holidays to its
employees in order to interfere with their choice of bargaining representative or
as an inducement to reject or refrain from activities in support of the Union.
(c) Showing the movie 'And Women Must Weep' to its employees.
(d) In any like or similar manner interfering with, restraining or coercing its
employees in the exercise of their right to self-organization, to form, join, or
assist the Union, or any other labor organization, to bargain collectively
through representatives of their own choosing and to engage in concerted

activities for the purpose of collective bargaining or other mutual aid or

protection or to refrain therefrom.
2

Take the following affirmative action which is necessary to effectuate the

policies of the Act:
(a) Post at its plant in Fort Plain, New York, copies of the attached notice
marked 'Appendix.' Copies of said notice, on forms provided by the Regional
Director for Region 3, after being duly signed by Respondent's authorized
representative, shall be posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by it to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 3, in writing within 20 days from
the receipt of this Decision what steps have been taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint is dismissed insofar as
it alleges unfair labor practices not hereinabove found.
The Order of the Board was issued August 25, 1970:
Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the
National Labor Relations Board adopts as its Order the Recommended Order of
the Trial Examiner and hereby orders that the Respondent, Luxuray of New
York Division of Beaunit Corporation, Fort Plain, New York, its officers,
agents, successors, and assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, with the following modifications:

Delete paragraph 1(a) and substitute the following:

(a) Engaging in surveillance of the union activities of its employees.

Delete the third paragraph of the 'Appendix' and substitute the following:
WE WILL NOT engage in surveillance of the union activities of our
employees.

See Appendix at pages 152 and 164

As stated in Part III of the lead opinion, the votes were counted on September
19, and the challenged announcement was made immediately after the count.
The objections to the election were filed one week later, on September 26, and

the September 19 election was not set aside until October 6. In view of the 6820 vote, a vote found at the Board level not to have been unfairly influenced by
employer activity except by the showing of 'And Women Must Weep' (which
we hold was not an unfair labor practice), it is unreasonable to suppose that the
increased benefits were offered to affect unfairly a second election
In NLRB v. Ambox, 357 F.2d 138 (5 Cir. 1966), the Fifth Circuit subsequent to
Exchange Parts, held that an employer's post-election grant of retroactive
benefits not made dependent upon the outcome of an election proceeding where
objections were still to be cleared up was not an unfair labor practice. This
approach seems to me to be more sensible than the approach taken by the
Board here. Here to increases in benefits were not made contingent on the
outcome of any possible second election, and here the increases were put into
effect contemporaneously with their announcement. The promise of retroactive
pay increases pending resolution of union objections to the conduct of an
election is clearly more of 'a fist inside the velvet glove,' Exchange Parts, supra,
375 U.S. at 409-410, 84 S.Ct. at 460, than an increase becoming effective at the
time of the announcement thereof.