I.B.S. Manufacturing Co.

National Labor Relations Board - Board Decisions

Nov 2, 1951

96 N.L.R.B. 1263 (N.L.R.B. 1951)

I. B. S. MANUFACTURING COMPANY 1263
Case No . 7-CA-472
1. International Union, United Automobile, Aircraft and Agricultural Imple-
ment Workers of America (UAW-CIO) is a labor organization within the
meaning of Section 2 (5) of the Act.
2. All the employees at Walker Motors, Detroit, Michigan, establishment, in-
cluding all mechanics, porters, service salesmen, parts clerks, wash-rack men,
and lubrication men, but excluding all office and clerical employees, new and
used car salesmen, administrative and professional employees, watchmen, super-
intendents, service managers, shop foremen, and all other supervisors as defined
in the Act, constitute, and at all times material herein have constituted, a unit
appropriate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
3 International Union, United Automobile, Aircraft and Agricultural Imple-
ment Workers of America (UAW-CIO) was, on June 5, 1950, and has been, at
all times material thereafter, the exclusive representative of all the employees
in the unit above described for the purposes of collective bargaining within
the meaning of Section 9 (a) of the Act.
4. By refusing, on June 13, 1950, and thereafter, to bargain collectively with
the above-named Union, as the exclusive representative of all the employees in
the unit above described, Walker Motors has engaged in, and is engaging in,
unfair labor practices within the meaning of Section 8 (a) (5) of the Act.
5. By said refusal to bargain, Walker Motors has interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in Section 7
of the Act, thereby engaging in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
1. B. S. MANUFACTURING COMPANY, ECRU MANUFACTURING COMPANY,
HICKORY FLAT MANUFACTURING COMPANY, PONTOTOC MANUFAC-
TURING COMPANY, IRWIN MANUFACTURING COMPANY and AMALGA-
MATED CLOTHING WORKERS OF AMERICA, CIO. Case No. 32-CA-71.
November $, 1951
Decision and Order
On April 30, 1951, Trial Examiner John Lewis issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondents had not engaged in any unfair labor practices , and recom-
mending that the complaint be dismissed in its entirety, as set forth
in the copy of the Intermediate Report attached hereto. Thereafter,
the General Counsel and the Union filed exceptions to the Inter-
mediate Report and supporting briefs. The Respondents, although
in agreement with the Trial Examiner's ultimate, conclusion, also
filed exceptions to the Intermediate Report and a supporting brief.
96 NLRB No. 200.
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Herzog and Members Houston and Murdock].
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the ex-
ceptions and briefs, and the entire record in the case, and, while
adopting the Trial Examiner's findings of fact,1 the Board rejects
the Trial Examiner's conclusions and recommendations except to the
limited extent that they are consistent with our Decision and Order
herein.
1. The Respondents contend that the complaint should have been
dismissed on grounds relating to the lack of compliance by the CIO
with Section 9 (f), (g), and (h) of the Act at the time the original
and first amended charges were filed on May 12 and August 5, 1949,
respectively. We reject these contentions. The Act requires com-
pliance at the time the complaint issues,2 and we have administratively
determined that the filing requirements of Section 9 (f), (g), and
(h) of the Act were fully satisfied on October 31, 1950, when the
complaint in this case issued.
The Respondents further except to the Trial Examiner's denial of
their motion to strike from the complaint all reference to events
antedating the 6-month period of limitation contained in Section 10
(b) of the Act, and to his admission of evidence relating to such
events. The Trial Examiner's rulings were proper. While Section
10 (b) prevents the issuance of a complaint based upon conduct
antedating the (;-month period, the complaint here averred such mat-
ters only as background, and evidence relating to those prior events
was admissible for the purpose of throwing light upon acts within
the 6-month period .3
The Respondents also except to the Trial Examiner's ruling that
findings with respect to the 8 (a) (5) allegation may be based upon
conduct occurring within the 6 months prior to the filing and service
of the original charge. In the instant case, the original charge alleged
violations of Section 8 (a) (1) and (3), and the 8 (a) (5) allegation
1 The Respondents except to certain findings of the Trial Examiner on the ground that
he erred in his credibility determinations. The Board, attaching great weight to the Trial
Examiner's credibility findings, insofar as they are based on demeanor, will not overrule
a Trial Examiners resolution of credibility unless a clear preponderance of all the relevant
evidence convinces the Board that the Trial Examiner was in error Standard Dry Wall
Products, Inc., 91 NLRB 544. No such conclusion is warranted in this case. The Board
therefore adopts the Trial Examiner's credibility findings and his findings of fact based
thereon. Hibriten Chair Co.. Inc., 95 NLRB 1242.
2 Dant & Russell, Ltd., 95 NLRB 252 ; Edwards Brothers, Inc., 95 NLRB 1451 ; Hibriten
Chair Co., Inc., supra. Neither N. L. It. B. V. Postern Cotton Mills, Inc., 181 F. 2d 919
(C. A. 5), nor N. L. It. B. v. Highland Park Manufacturing Company, 341 U. S. 322 ,-cited'
by the Respondents, calls for a contrary result.
8 See, e. g, Axelson Manufacturing Company, 88 NLRB 761 ; Frederica Clausen, d/b/a,
Luzerne Hide and Tallow Company, 89 NLRB 989, enforced 188 F. 2d 439 (C. A. S).
1. B. S. MANUFACTURING 'COMPANY - 1265
initially appeared in the first amended charge. While the Respond-
ents contend that the 10 (b) period as to the 8 (a) (5) allegation
should be computed, at the earliest, from the date of the first amended
charge, this contention is without merit. As has been previously held,
we may base an unfair labor practice finding upon any conduct which
occurred within a 6-month period before the filing of a charge assert-
ing that the Act has been violated, although the charge does not spe-
cifically set forth such conduct, provided the complaint which issues
pursuant to the charge alleges the conduct as an unfair labor practice.'
2. The Trial. Examiner found that remarks made by accountant
Winkler to employee Herrin were not violative of Section 8 (a) (1),
.and that, while the interrogation of employee Caldwell by Supervisor
Megginson was unlawful, such conduct was too isolated to warrant a
finding of violation of the Act. We do not agree.
Winkler, an independent certified public accountant, was retained by
the Respondents to handle their financial matters, and took an active
part in the bargaining negotiations with the Union as a representative
of the Respondents. In April 1949, in a conversation with Herrin, one
of the employees who had participated as a union representative in the
negotiations, Winkler stated, inter alia, that "he admired our persist-
ence [in attempting to secure a contract], but that it wasn't going to do
us any good, that they would keep discharging people until the union
was gotten rid of." Contrary to the conclusions of the Trial Exam-
iner, we find that Winkler's relationship to the Respondents and to col-
lective bargaining is such that the Respondents were responsible for
Winkler's statements;,' in our opinion, the clear implication of these
remarks was a threat of economic reprisal against union members.'
We find that, by Winkler's statement to Herrin, the Respondents vio-
lated Section 8 (a) (1) of the Act.
As to Supervisor Megginson's interrogation of employees Caldwell
in April or May 1949, concerning the latter's union membership, the
'Trial Examiner, as indicated above, found no violation in this con.
duct because of what he termed the "isolated" character of the inci-
dent. However, in view of our conclusion with respect to Winkler's
remarks and the findings of violation of Section 8 (a) (5) and 8 (a)
(1) discussed below, this unlawful interrogation was in fact not iso-
lated; we find that by this conduct the Respondents further violated
Section 8 (a) (1) of the Act.'
° Stokely Foods, Inc., 91 NLRB 1267. See also, Cathey Lumber Company , 86 NLRB 157,
.enforced 185 F. 2d 1021 ( C. A. 5), set aside on other grounds , 189 F. 2d 428 ( C. A. 5) ;
Kansas Milling Company , 86 NLRB 925, enforced 185 F. 2d 413 (C. A. 10 ) ; Star Beef
Company, 92 NLRB 1018 ; N. L. R. B. v. Westex Boot & Shoe Co., 190 F. 2d 12 (C. A, 5).
5 Cherokee Hosiery Mills , 93 NLRB 590.
6 See, e. g., Cherokee Hosiery Mills, supra.
7 Cf. Dealers Engine Rebuilders , Inc., 95 NLRB 1009.
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The Trial Examiner found that the Respondents' conduct since
November 12, 1948, the earliest date upon which a finding of unfair
labor practices can be predicated under Section 10 (b), did not con-
stitute a refusal to bargain with the Union, in violation of Section &
(a) (5) and (1) of the Act. Although, as already mentioned, we
adopt the Trial Examiner's findings of fact, we cannot agree with
his conclusions based thereon.
The facts are set forth in detail in the Intermediate Report. Briefly,
the Union was certified as exclusive bargaining representative of the
Respondents' employees in November 1946. Between that time and
June 25, 1948, the Union met with the Respondents in six separate
conferences, each lasting 2 or 3 days. As a result of these conferences,
agreement had been reached only on a relatively few minor issues,
and such agreement was due almost entirely to the substantial conces-
sions made by the Union to the Respondents' demands.
With respect to the major issues, the Respondents demonstrated
no willingness at any of the regular conferences to accept any form
of union security or checkoff, or arbitration as the final step in the
grievance procedure. The Respondents also gave no indication of re-
ceding from the provision in their proposal permitting them the uni-
lateral right to lower the general wage scale on 10 days' notice to the
Union, and, indeed, during the entire period of negotiation, the only
increase in wages resulted from the Respondents' purely unilateral
action.$ Moreover, the Respondents at no time receded from their
proposal giving them the unconditional right to discharge for any
cause they saw fit, with no right in the Union to submit such matter
to arbitration. And at all tines the Respondents demanded the post-
ing of some form of performance bond by the Union.
It was in connection with the Respondents' demand for the posting
of securities by the Union that the meeting of June 25, 1948, ended.
After the Union's representatives indicated at this meeting that they
would contact the Union's headquarters in New York City for au-
thority regarding the Respondents' latest demand for the posting
of security in the amount of $75,000 in Government bonds, the Re-
spondents refused to discuss any of the remaining issues, stating that
nothing could be settled until the Respondents received an answer
to their proposal as to the bonds. Thereafter, upon learning that
the Union did not intend to answer the bond proposal at once, the
Respondents wrote to the Union, cancelling a meeting which had
been scheduled for July 14, 1948, on the ground that there was no
purpose to such a meeting until the Union had given the Respondents
a, written commitment with respect to that proposal. In September
1948, the Union wrote to the Respondents, asserting that the Respond-
8 The Respondents, during this period, also unilaterally changed the piece-rate system
in all the plants here involved.
I. B. S. MANUFACTURING COMPANY 126?
ents' insistence upon a performance bond or a deposit of securities
did not constitute collective bargaining, requesting proposals on cer-
tain specified matters, and indicating readiness, for an immediate
meeting. On October 25, 1948, the Respondents replied, stating, inter
alia, that no "meeting is necessary or justifiably called for until you
have carried out the promises [concerning the bond proposal] made
at the June 25 w'eeting...."
As to the above conduct of the Respondents during approximately
2 years immediately preceding the 10 (b) period, it is apparent, as
the Trial Examiner himself observed, that the Respondents engaged
in mere surface bargaining with the Union, and further demonstrated
their lack of good faith by their unilateral action with respect to the
piecework system and wage rates, their insistence on the right to
unilateral action on other basic employment conditions, and their in-
sistence on performance security from the Union. While a finding
of violation of Section 8 (a) (5) and (1) cannot be predicated thereon,
it is against this background that the following conduct of the Re-
spondents after November 12, 1948,9 must be appraised.
In January 1949, the Respondents, without consulting or even in-
forming the Union, changed their production standards to require
employees to average 75 percent of their production quotas. Also, as
already mentioned, Supervisor Megginson interrogated an employee
in April or May 1949 concerning her union membership, and in April
1949, Winkler, who had actively participated in the negotiations with
the Union as a representative of the Respondents, told employee Her-
rin that the Respondents would discharge employees until the Union
was gotten rid of.
On July 26, 1949, following a renewed request by the Union for a
bargaining conference, the parties again met. At this conference,,
the Union asked whether the Respondents would make an agreement
not contingent upon the posting of performance security by the
Union. The Respondents refused to answer this question. When the
Union referred to Board decisions holding that the insistence on a per-
formance bond was unlawful, the Respondents answered that such
holdings were not under the amended Act, and none involved a situ-
ation where the union had originally requested a bond.10 The Re-
spondents gave no real indication that they would assent to any form
of union security. And with respect to ,wages, the Respondents re-
fused to grant any increase, stating "that a very small change in the
9 The original charge having been filed on May 12, 1949.
is Although the Union's form contract, originally submitted to the Respondents prior
to the first meeting of the parties in November 1946, contained a provision for-the posting
of a vacation bond by an employer whose financial strength the Union doubted, the Union,
at the first meeting, informed the Respondents that this provision did not apply to them
However, the Respondents at no time withdrew their demand for some torm of secur,ty
from the Union.
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
margin of profit would put the Company out of business...
When the Union asked for a financial statement to support this asser-
tion, the Respondents refused, on the grounds that "'We do not think
we are required to do that now, and we would prefer not to do it at
this time." Following the Respondents' refusal to answer categor-
ical questions by the Union as to their position on other bargaining
matters, the meeting ended, and on August 5, 1949, the Union filed its
-allegation of 8 (a) (5) herein.
In our opinion, the Respondents, by their unilateral change of
employment conditions in January 1949 and their conduct at the
July 1949 conference, viewed in the light of their previously demon-
strated lack of good faith, and other conduct which we have found
violative of Section 8 (a) (1), refused to bargain in good faith with
the Union, in violation of Section 8 (a) (5) and (1) of the Act.
In reaching a contrary conclusion with regard to the unilateral
change of employment conditions, the Trial Examiner relied on the
impasse in negotiations, the length of time since the last conference,
the Union's indicated willingness at a bargaining conference to accede
to the delegation to the Respondents of control over the layoff and
reemployment of employees, and the lack of objection by the Union
to such change. These grounds afford no defense for the Respond-
ents' action in derogation of their duty to bargain with the Union.
Even assuming, arguendo, that the impasse following the June 1948
conference and the exchange of letters thereafter was a genuine one
following good faith bargaining, it cannot justify unilateral action on
a vital change of production standards which was neither presented to
the Union nor discussed at any bargaining conference." Similarly,
the short lapse of time after the alleged impasse did not relieve the
Respondents of their duty to bargain. Nor is it of controlling signifi-
cance that the Union, in the course of negotiations, had indicated that
it might be willing to accede to the Respondents' unilateral control
over the discharge and reemployment of employes. Such willing-
ness was conditioned on the consummation of a collective bargaining
agreement, which at no time occurred. Likewise, the Union's failure
to object is no defense, particularly where, as here, it was not even in-
formed of such change.'3 We find that the unilateral change of em-
ployment conditions in January 1949 constituted per se a violation
of Section 8 (a) (5) and (1) of the Act.-
As to the July 1949 conference, the Trial Examiner's conclusion
that the Respondents' conduct at that time does not support a finding
11 See N 1, R B. v Andrew Jergens Co, 175 F. 2d 130 (C. A. 9),,cert. den., 338 U. S 827,
rehearing denied 338 U. S. 882. See also Crow-Burlingame Company, 94 NLRB 997;
Dealers Engine Rebuilders , Inc., supra.
32 Cf. Tomlinson of High Point, Inc., 74 NLRB 681.
18 American National Insurance Co., 89 NLRB 185, enforced as modified 187 F . 2d 307
(C. A. 5). Cf. Medo Photo Supply Corp . v. N. L. R. B., 321 U . S. 678.
I. B. S. MANUFACTURING COMPANY 1269
of violation of Section 8 (a) (5) is based principally on his determina-
tion that : (1) There is insufficient evidence to show that the Respond-
ents were still insisting on a performance bond as a condition
precedent to bargaining; (2) the Respondents' ability to grant a wage
increase was not in adequate focus to warrant a finding that the
Respondents were refusing to supply necessary information; and
(3) because of the previous impasse, the lapse of time, and the fact
that an 8 (a) (3) charge had been filed with the Board '14 "a more
gradual approach [by the Union] would have been the order of the
day." We do not agree.
As to (1), the Respondents' insistence concerning the performance
bond had been the source of the impasse at the June 1948 conference
and in the subsequent correspondence. At the July 1949 conference,
the Respondents refused to state that they were not still insisting on
such a performance bond as a condition precedent to an agreement.
Instead, by asserting that the cases holding such insistence to be un-
lawful were not controlling 15 the Respondents clearly revealed that a
performance bond was still a condition precedent to an agreement. By
such insistence, we find that the Respondents violated Section 8 (a)
(5) and (1) of the Act.le
With respect to (2), the Union clearly brought the wage issue into
focus by its demand for an increase, and the Respondents' answer
referred to their inability to pay such increase. The Union was there-
fore entitled to financial information upon which the Respondents
based their position, in order intelligently to proceed with further
bargaining on this issue. The Respondents' refusal to furnish this
information so essential to further bargaining by the Union was
per se violative of the Act 17
Finally, as to (3), the Trial Examiner's suggestion that a more
gradual approach by the Union was required, in effect views the July
1949 conference in isolation and fails to accord proper weight to the
prior conduct of the Respondents. The July 1949 conference was not
the first, but the seventh of a series of conferences extending over a
period of over 21/2 years. During this period, as the Trial Examiner
himself recognized, the Respondents had engaged in mere surface bar-
gaining and had amply demonstrated their lack of good faith. Cer-
tainly at this seventh conference, the Union was entitled to specific
answers from the Respondents as to the latter's position on bargaining
14 This allegation , which appeared in the original charge, was not included in the
complaint.
15 The Respondents' contentions that the prior decisions were not controlling because
decided under the original Act, and because in none of them had the Union first suggested
a bond , are manifestly without merit.
16 See Tower Hosiery Hills, 81 NLRB 658, enforced 180 F. 2d 701 (C. A. 4), cert. den.
340 U. S. 811, Cf. International Brotherhood of Teamsters , etc. (Conway's Express),
87 NLRB 972.
15 Southern Saddlery Company, 90 NLRB 1205; The Jacobs Manufacturing Company,
94 NLRB 1214.
974176-52-vol 96-81
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
issues. The lapse of about 9 months since the Respondents had last
refused to meet with the Union, a period comparable to that between
the third and fourth conferences, did not afford license for dilatory
action by the Respondents. Nor, contrary to the Trial Examiner, does
the fact that the Union had filed charges, alleging violations of Sec-
tion 8 (a) (1) and (3), shortly before this meeting, excuse the
Respondents' conduct. It is well settled that the filing of charges does
not suspend the duty to bargain 18
In further support of the Trial Examiner's conclusion that they
did not violate Section 8 (a) (5), the Respondents contend in their
exceptions and brief that (1) they were under no duty to bargain,
prior to December 22, 1949, because of the CIO's noncompliance with
the requirements of Section 9 (f), (g), and (h) ; 1° (2) after that date
there was no duty to bargain because the Union did not renew its
request for bargaining; and (3) the Union was itself guilty of a refusal
to bargain at the seventh conference. These contentions are without
merit. As to the first and second contentions, for the reasons set forth
in the New Jersey Carpet case,20 the Union's then unasserted noncom-
pliance did not excuse the Respondents' action. Nor was the Union
under any duty to renew its request for bargaining after full compli-
ance had been achieved. As to the third contention, the record does
not support the Respondents' contention that the Union refused to
bargain at the seventh conference.
For all the reasons detailed above, we find upon the record as a whole
that the Respondents, on and after November 12, 1948, refused to
bargain in good faith with the Union.21 We also find, as already noted,
that the Respondents' unilateral action in changing production quotas
in January 1949, their insistence on a performance bond as a condition
precedent to any agreement, and their refusal to supply necessary
financial information supporting their position on a wage increase,
were per se violative of Section 8 (a) (5) and 8 (a) (1) of the Act.
The Effect of the Unfair Labor Practices upon Commerce
The activities of the Respondents set forth above occurring in con-
nection with the operations of the Respondents described in Section I
of the Intermediate Report have a close, intimate, and substantial
relation 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.
"' Atlanta Broadcasting Company, 90 NLRB 808; Union Manufacturing Company, 95
NLRB 792
19 This issue was raised for the first time at the hearing before the Board.
20 New Jersey Carpet Mills, Inc., 92 NLRB 604
21 Cf. Sanson Hosiery Mills, Inc, 92 NLRB 1102.
I. B. S. MANUFACTURING COMPANY 1271
The Remedy
Having found that the Respondents have engaged in the unfair
labor practices set forth above, we shall order that they cease and
desist therefrom and that they take certain affirmative action designed
to effectuate the policies of the Act.
It has been found that the Respondents refused to bargain collec-
tively with the Union as the representative of their employees in an
appropriate unit. Accordingly, we shall order the Respondents to
bargain collectively with the Union as the exclusive representative
of their employees in the appropriate unit with respect to rates of
pay, wages, hours, and other terms or conditions of employment, and
if an understanding is reached, embody such understanding in a
signed written agreement. In addition, having found that the Re-
spondents engaged in certain conduct per se violative of the Act, we
shall order, specifically, that the Respondents, if so requested by the
Union, furnish it with adequate financial data to support any posi-
tion that they may take with respect to wages. We shall also order
that the Respondents cease and desist from insisting on the post-
ing of a performance bond by the Union as a condition precedent
to any agreement, and from unilaterally making changes in working
conditions 22
It having also been found that the Respondents interfered with,
restrained, and coerced their employees in the exercise of the rights
guaranteed them by the Act, by threatening reprisals against em-
ployees who exercised those rights and by interrogating employees
about their union affiliation and activities, we shall order the Re-
spondents to cease and desist from such conduct.
The violations of the Act which the Respondents have committed
are potentially related to other unfair labor practices proscribed by
the Act, and the danger of their commission in the future is to be
anticipated from the Respondents' conduct in the past. The pre-
ventive purposes of the Act will be thwarted unless our order is co-
extensive with the threat. In order, therefore, to make more effective
the interdependent guarantees of Section 7, and to prevent a recur-
rence of unfair labor practices, and thereby minimize industrial strife
which burdens and obstructs commerce, and thus effectuate the policies
of the Act, we shall order the Respondents to cease and desist from
infringing in any manner upon the rights guaranteed in Section 7
of the Act.
22 We find it unnecessary further to particularize our Order as requested by the Union.
We assume that the Respondents will comply with our Order in good faith.
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS or LAW
1. Amalgamated Clothing Workers of America, CIO, is a labor
organization within the meaning of Section 2 (5) of the Act.
2. At all times material herein, all production and maintenance
employees employed by the Respondents, including truck drivers, but
excluding checkers, office and clerical employees, watchmen, profes-
sional employees, and supervisors as defined in the Act, constituted
and now constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (a) of the Act.
3. Amalgamated Clothing Workers of America, CIO, in Novem-
ber 1946 was, and at all times thereafter has been, the exclusive repre-
sentative of all employees in the above unit for the purposes of col-
lective bargaining within the meaning of Section 9 (a) of the Act.
4. By refusing to bargain collectively with Amalgamated Clothing
Workers, CIO, as the exclusive bargaining representative of the em-
ployees in the appropriate unit, the Respondents have engaged in,
and are engaging in, unfair labor practices within the meaning of
Section 8 (a) (5) of the Act.
5. By interfering with, restraining, and coercing their employees
in the exercise of the rights guaranteed in Section 7 of the Act, the
Respondents have engaged in, and are engaging in, unfair labor prac-
tices within the meaning of Section 8 (a) (1) of the Act.
(6) The foregoing unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, I. B. S. Manu-
facturing Company, Ecru Manufacturing Company, Hickory Flat
Manufacturing Company, Pontotoc Manufacturing Company, and
Irwin Manufacturing Company, their officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Making unilateral changes in working conditions, insisting
upon the posting of a performance bond by the Union as a condition
precedent to any agreement, or in any other manner refusing to bargain
collectively with Amalgamated Clothing Workers of America, CIO,
as the exclusive representative of all production and maintenance
employees, including truck drivers, but excluding checkers, office and
I. B. S. MANUFACTURING COMPANY 1273
clerical employees, watchmen, professional employees, and supervisors
as defined in the Act.
(b) Interrogating their employees concerning their union member-
ship, or threatening to discharge those who retain their union
membership.
(c) In any other manner interfering with, restraining, or coercing
their employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist Amalgamated Clothing
Workers of America, CIO, or any other labor organization, to bargain
collectively through representatives of their own free choice, to engage
in concerted activities for the purpose of collective bargaining or other
mutual aid or protection, and to refrain from any and all such activi-
ties, except to the extent that such right may be affected by an agree-
ment 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 the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Amalgamated Clothing
Workers of America, CIO, as the exclusive representative of their
employees in the aforesaid bargaining unit, with respect to rates of
pay, wages, hours of work, and other terms or conditions of employ-
ment, and if an understanding is reached, embody such understanding
in a signed agreement.
(b) Furnish to the Union, upon its request, financial data necessary
to permit bargaining upon wages and rates of pay.
(c) Post at their plants in New Albany, Ecru, Hickory Flat, and
Pontotoc, Mississippi, copies of the notice attached hereto and marked
"Appendix A." 23 Copies of the notice to be furnished by the Regional
Director for the Fifteenth Region, after being duly signed by the
Respondents' representatives, shall be posted by the Respondents, im-
mediately upon their receipt, and maintained by them for a period of
sixty (60) consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondents to insure that said notices
are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Fifteenth Region, in
writing, and within ten (10) days from the date of this Order, what
steps they have taken to comply herewith.
21 In the event this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted before the words "A Decision and Order ," the words "A Decree of
the United States Court of Appeals Enforcing."
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT make unilateral changes in working conditions.
WE WILL NOT insist upon the posting of a performance bond by
the Union as a condition precedent to any agreement.
WE WILL BARGAIN collectively, upon request, with AMALGAMATED
CLOTHING WORKERS OF AMERICA, CIO, as the exclusive representa-
tive of all employees in the bargaining unit described herein with
respect to wages, rates of pay, hours of employment, and other
terms or conditions of employment, and if an understanding is
reached, embody such understanding in a signed agreement. The
bargaining unit is:
All production and maintenance employees, including
truck drivers, but excluding checkers, office and clerical em-
ployees, watchmen, professional employees, and supervisors
as defined in the Act.
WE WILL FURNISH, upon request, to the Union, financial data
necessary to permit bargaining upon wages and rates of pay.
WWTE WILL NOT interrogate our employees concerning their union
membership or attitude, or threaten to discharge employees who
retain their union membership.
WE WILL NOT in any other manner interfere with, restrain or
coerce our employees in the exercise of their right to self -organiza-
tion, to form labor organizations, to join or assist AMALGAMATED
CLOTHING WORKERS OF AMERICA, CIO, or any other labor organi-
zation, to bargain collectively through representatives of their
own free choice, to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection, and to
refrain from any and all such activities, except to the extent that
such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the National Labor Relations
Act.
I. B. S. MANUFACTURING COMPANY,
Ev?,ployer.
Dated ------- By --------------------------------------------
(Representative ) ( Title)
ECRU MANUFACTURING COMPANY,
Employer.
Dated------. By --=-----------------------------------------
(Representative) (Title)
I. B. S. MANUFACTURING COMPANY 1275
HICKORY FLAT MANUFACTURING COMPANY,
Employer.
Dated------- By --------------------------------------------
(Representative ) ( Title)
PONTOTOC MANUFACTURING COMPANY,
Employer.
Dated------- By --------------------------------------------
(Representative ) (Title)
IRWIN MANUFACTURING COMPANY,
Employer.
Dated------- By --------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the
date hereof, and must not be altered, defaced, or covered by any other
material.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon charges duly filed by Amalgamated Clothing Workers of America, CIO,
herein called the Union, the General Counsel of the National Labor Relations
Board by the Regional Director for the Fifteenth Region (New Orleans, Louisi-
ana), issued his complaint dated October 31, 1950, against I. B. S. Manufactur-
ing Company, Ecru Manufacturing Company, Hickory Flat Manufacturing Com-
pany, Pontotoc Manufacturing Company, and Irwin Manufacturing Company,
herein called the Respondents, alleging that the Respondents had engaged in,
and were engaging in, unfair labor practices affecting commerce within the mean-
ing of Section 8 (a) (1) and (5) and Section 2 (6) and (7) of the National
Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of
the complaint, the charges, and notice of hearing were duly served upon the
Respondents and the Union.
With respect to the unfair labor practices, the complaint alleges, in substance :
(1) That the Respondents since on or about November 12, 1948, "interfered with,
restrained and coerced their employees in their right to bargain collectively
through representatives of their own choosing as guaranteed by Section 7 of the
Act and in derogation of the rights of the Union as exclusive collective bargaining
representative of employees by unilaterally changing wages, hours and working
conditions of employees" ; and (2) that the Respondents have since November
7, 1946, and at various times thereafter, and specifically on or about July 26,
1949, refused to bargain collectively with the Union with respect to rates of
pay, hours, wages, and other conditions of employment. The Respondents duly
filed their joint answer in which they denied commission of any of the alleged
unfair labor practices, and alleged affirmatively that the Union has refused to
bargain with them since July 26, 1949.
Pursuant to notice, a hearing was held at New Albany, Mississippi, on January
15, 16, 17, and 18, 1951, before John Lewis, the undersigned Trial Examiner, duly
designated by the Chief Trial Examiner. All parties were represented by counsel,
participated in the hearing, and were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bearing on the
issues. At the opening of the hearing the undersigned granted a motion by the
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondents requiring the General Counsel to state specifically the acts upon
which he relied to show that the Respondents had "interfered with, restrained
and coerced their employees," as alleged generally in paragraph V of the com-
plaint. The undersigned denied a motion by the Respondents to strike from
paragraph IX of the complaint all reference to matters occurring prior to
February 5, 1949, on the grounds that such matters were barred under Section
10 (b) of the Act.' At the close of the General Counsel's case, the undersigned
denied a motion by the Respondents to dismiss the complaint, under the
authority of N. L. R. B. v. Postea Cotton Mills, Inc., 181 F. 2d 919 (C. A.
5), on the ground that the Congress of Industrial Organizations with which the
charging Union is affiliated, did not come into compliance with the filing require-
ments of the Act until December 22, 1949, such date being subsequent in point
of time to the alleged refusal to bargain herein.' At the conclusion of the entire
case the Respondents renewed their earlier motions to dismiss the complaint
and the undersigned reserved ruling thereon. Said motions are disposed of in
accordance with the findings, conclusions, and recommendations hereinafter
made. A motion by the General Counsel made at the conclusion of the hearing
to amend the pleadings to conform to the proof in matters of names, dates, and
other matters not of substance was granted without objection. The parties
waived opportunity to argue orally before the undersigned. All parties have
availed themselves of the opportunity of filing briefs, which have been care-
fully considered by the undersigned.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANIES
The Respondents are corporations organized and existing under the laws of
the State of Mississippi. The Respondents, I. B. S. Manufacturing Company and
Irwin Manufacturing Company have their principal offices and places of busi-
ness in New Albany, Mississippi. The Respondents Ecru Manufacturing Com-
pany, Hickory Flat Manufacturing Company, and Pontotoc Manufacturing Com-
pany have their respective principal offices and places of business at Ecru, Hickory
Flat, and Pontotoc, Mississippi. All of the Respondents' corporations are oper-
ated under common ownership and are conducted under unified management con-
trol, with the same management officials directing the operations of each' cor-
poration. During the calendar year 1949 the Respondents' corporations, in the
course and conduct of their business operates, purchased raw materials, sup-
plies, and equipment valued in excess of $500,000, substantially all of which
was purchased outside the State of Mississippi. During the same period the
Respondent Corporations manufactured and sold finished textile products, in-
1 The undersigned's denial of Respondents ' motion was based on the authority of the
Board's decisions in Cathey Lumber Company, 86 NLRB 157; Stokely Foods, Inc., 91 NL#IB
1267; Tennessee Knitting Mills, Inc., 88 NLRB 1103; and Azelson Manufacturing Com-
pany, 88 NLRB 761.
2 The undersigned's denial of said motion was based upon the policy of the Board
announced in The Ohio Oil Company, 92 NLRB 1597, that pending an ultimate decision
by the Supreme Court of the United States, it would not deny its processes to a union
merely because the parent organization with which it is affiliated was not in compliance
with the filing requirements of the Act at the time of the filing of the charge. Moreover,
since the C. I 0. was in compliance at the time of the issuance of the complaint herein
and Respondents make no claim that any alleged refusal to bargain by them was based
on the noncompliance of ,the C. I. 0., an additional reason exists for the denial of said
motion (New Jersey Carpet Mills, Inc., 92 NLRB 604).
I. B. S. MANUFACTURING COMPANY 1277
eluding men's shirts, valued in 'excess of $500,000, substantially all of which
were sold or destined for shipment to States outside the State of Mississippi.
The Respondents admit, and the undersigned finds upon the basis of the fore-
going fact, that Respondents are engaged in commerce within the meaning of
the Act.
. II. THE ORGANIZATION INVOLVED
Amalgamated Clothing Workers of America, CIO, is a labor organization
which admits to membership employees of the Respondent Companies.
III. THE UNFAIR LABOR PRACTICES
A. Background
As background evidence, to show Respondents' antiunion attitude and their
unwillingness to bargain with the Union, the General Counsel offered the testi-
mony of several employees and former employees who testified that prior to an
election conducted by the Board in October 1946 on a petition filed by the Union,
• several foreladies at the Irwin and I. B. S. plants in New Albany had made
statements to the general effect that the employees would lose their jobs if the
Union was successful in the election. One employee, Anita Craig, who was
formerly employed as a supervisor, testified that prior to the election in 1946,
when she was still a supervisor, the head forelady, Lois Megginson, asked her
to go among the girls and tell them the plants would close if the Union won the
election. Craig also testified that on the day of the election she attended a meet-
ing of supervisors at which the Company's attorney, Alexander E. Wilson, Jr.,
made the statement that "he was representing companies then where the Union
had won the election more than three years and they still didn't have a contract."
Another employee, Gussie Dill, testified that about a week following the election
a number of nonunion employees were called into the office to meet with company
officials, including the president, Irwin B. Schwabe, and that when one of them
asked if the Company would sign a contract with the Union, Schwabe replied
that it would not, raising his right hand and stating, "he would die before he
would sign a contract." The testimony of these witnesses was admitted in evi-
dence over the objection of Respondents' counsel, whose objection was based
on the fact that such testimony was barred under Section 10 (b). Although
for the reasons later discussed the undersigned believes such background evi-
dence was admissible, in view of its remoteness to the events in issue the weight
which can be given to it is extremely marginal
B. The alleged interference, restraint, and coercion
In support of the allegation of interference, restraint, and coercion, which
is alleged in general terms in the complaint, the General Counsel offered to prove
the following: (1) That in April 1949 Lois Megginson, a supervisor, interrogated
an employee concerning her union membership; (2) that in April 1949, a com-,
8 Except for the statement attributed to Wilson by Craig, Respondents failed to controvert
any of the statements above referred to. Wilson denied having made the statement
testified to by Craig. He admitted, however, having talked to a group of supervisors after
the Union had won the election, but claimed that he merely said "we wouldn't sign a
contract that wasn't fair and applicable to this particular locality." Craig's testimony
involved a statement made on the day of the election and apparently before the votes
had been counted. Craig, who is still employed by the Respondent, and had no apparent
motive for testifying untruthfully, impressed the undersigned as an honest and intelligent
witness and her testimony is credited.
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pang. official, Marion Winkler, stated that the Company had no intention of
signing a contract and that it was going to continue to fire union members until
it got rid of the Union; and (3) that in December 1948, the Company made a
unilateral change in the employees production quotas thereby violating both
Section 8 (a) (1) and 8 (a) (5) of the Act.
With regard to his first claim , the General Counsel offered the testimony of
Addle L. Caldwell, previously employed by I. B. S. Manufacturing Company
and Irwin Manufacturing Company, who testified that in April or May 1949, her
supervisor, Louis Megginson, noticed her wearing a union button and said : "Why,
do you still belong to the Union?" According to Caldwell, she replied, "Uh-huh,"
and then walked away. Such inquiries concerning the wearing of union buttons
are ordinarily considered by the Board to constitute interference with, restraint,
and coercion of employees in the exercise of the rights guaranteed in Section 7
of the Act.' However, in view of the isolated character of this incident and its
lack of relation to any other conduct considered in this proceeding the under-
signed deems it unnecessary, under all the circumstances, to find that the Re-
spondents thereby violated the Act°
With respect to the second incident, the General Counsel offered the testimony.
of Sue Herrin, a former employee, who was also president of the local established
by the Union in the Company's plants and is now employed by the Union. Herrin
testified to a conversation with Marion Winkler which took place on April 23,
1949, when she met Winkler by chance in a drug store in Tupelo, Mississippi.
According to Herrin, Winkler asked her if she was still working for the Com-
pany ; that she replied she was still working and would be there "until we had
a union contract" ; that Winkler stated, "That might be a long time, because
if they gave us a contract we couldn't meet in friendly arguments anymore" ;
that she answered, "the arguments might not be so friendly unless we did get a
contract" ; and that Winkler replied "he admired our persistence but it wasn't
going to do us any good, that they would keep discharging people until the union
was gotten rid of." The undersigned finds that this incident took place sub-
stantially as testified to by Herrin' However, in the opinion of the undersigned,
no finding of unfair labor practice can be based thereon. In the first place it is
doubtful whether the record sufficiently establishes Winkler's agency to speak for
the Company. So far as appears from the record he was not an employee of
the Company but an independent certified public accountant, who was retained
to do work in connection with various financial matters of the Company. Al-
though he was one of about eight company representatives at the bargaining
negotiations about which reference will subsequently be made, these negotiations
had broken off some months before the conversation took place and no further
meeting was then scheduled. His role at the meetings he attended was, on the
whole, a minor one. It is therefore dubious whether he can reasonably be re-
I In view of the unity in ownership and management of Respondents they were referred
to colloquially by the parties and the witnesses as the "Company," and will be so referred
to, on occasion, by the undersigned.
S United States Gypsum Company, 93 NLRB 966.
9 WVest Texas Utilities Company, Inc, 85 NLRB 1296, 1400; Sunray Oil Corporation,
82 NLRB 942; United States Gypsum Company, supra.
l Herrin 's testimony regarding this incident was corroborated by Lavinia George, who
was formerly employed as an organizer by the Union, and who was with Herrin in the
drugstore when the incident took place. Both Herrin and George impressed the under-
signed favorably in their testimony . Winkler, who admitted having had a conversation
with Herrin, testified that when she told him she was going to keep on working until they
got a contract, he merely replied : "Well, I admire your persistence That is fine."
Winkler's sister-in-law, Phyllis Wilson, who was with him in the drugstore at the time,
testified to similar effect. The recollection of both Winkler and Wilson appeared to be
somewhat hazy on this incident and the undersigned does not accept their testimony.
I. B. S. MANUFACTURING COMPANY 1279
garded as expressing the Company's policy at the time he made the statement
attributed to him. However, even assuming that he was acting as an agent
for the Company in making these statements, the content thereof is not suf-
ficiently clear to afford the basis for an unfair labor practice finding. The
statement that if they gave the Union a contract "we couldn't meet in friendly
arguments anymore" may have been merely a jocular remark intended to
characterize the parties inability to resolve their differences. Although the
statement that "it wasn't going to do us any good" because "they would keep
discharging people until the union was gotten rid of" is suggestive of a threat
of the type which the Board regards as coercive, under the circumstances here
present it is possible that Winkler was merely referring to Company's recently
adopted policy, which will later be discussed, of discharging employees who
regularly failed to meet production quotas. Since the complaint does not allege,
and the evidence does not establish that this policy was discriminatory in
character, it is possible that Winkler merely meant that the Union might
eventually lose its majority through the normal operations of the Company's
policy of discharging inefficient operators. In view of the fact that the evidence
permits of conflicting inferences regarding Winkler's remarks, not all of which
require a finding of violation of the Act, the undersigned will base no finding
of unfair labor practices thereon .8
With respect to the General Counsel's claim that Respondents made certain
unilateral changes in the production quotas, since this relates primarily to the
question of refusal to bargain, the undersigned will treat this matter in the fol-
lowing section of this Report dealing with that subject.
C. The alleged refusal to bargain
1. The appropriate unit and the Union's majority representation therein
Pursuant to stipulation for certification after election, entered into between
the Respondents and the Union, the Board issued its decision and certification
of representatives on November 20, 1946, in Case No. 15-R-1878 in which, in
accordance with the stipulation of the parties, the appropriate unit was found
to be as follows :
All production and maintenance employees, including truck drivers and
watchmen, of Irwin Manufacturing Company, I. B. S. Manufacturing Com-
pany, Ecru Manufacturing Company, Hickory Flat Manufacturing Company,
and Pontotoc Manufacturing Company, but excluding checkers, office and
clerical employees, and supervisory employees with the authority to hire,
promote, discharge, discipline, or otherwise effect changes in the status of
employees, or effectively recommend such action.
The tally of ballots in said election discloses that of the 619 ballots cast, the
Union received 333 votes, with 285 votes being cast against it and 1 ballot being
challenged. On the basis of the stipulation for certification after election, the
tally of ballots, and the entire record in the proceedings, the Board certified the
Union as the exclusive bargaining representative of the employees of the Re-
spondent companies in the unit hereinabove mentioned. The complaint herein
alleges, as the appropriate unit for purposes of collective bargaining, the same
unit found to be appropriate by the Board in its decision and certification of
representatives, dated November 20, 1946, except for the exclusion of watchmen
from said unit, and further alleges that at all times since November 20, 1946,
the Union has been the exclusive representative of all employees in said unit
8 See U. S. Gypsum Company, 93 NLRB 966.
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the purposes of collective bargaining. In its answer the Company states that
it "neither admits nor denies" that the unit alleged in the complaint is appro-
priate and "demands a determination by the National Labor Relations Board
as to what constitutes the appropriate unit under the National Labor Relations
Act, as amended, and as would be appropriate at the time of the issuance of the
Complaint." The answer further denies that the Union has been the repre-
sentative of a majority of the employees of the Respondents in an appropriate
unit at all times since November 20, 1946, and specifically denies that the charg-
ing Union represented a majority of the employees of the Company on July 26,
1949.
No evidence was offered by the Respondents to show that the unit, which it
heretofore stipulated was appropriate, and which the Board found to be appro-
priate, for the purposes of collective bargaining, is no longer an appropriate
unit. On the basis of the record as a whole, the undersigned finds that the
above-stated unit heretofore found by the Board to be appropriate and so alleged
in the complaint constitutes substantially, a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9 (b) of the Act. How-
ever, in order to conform said unit to the requirements of the Act as amended,
the undersigned will exclude therefrom watchmen, professional employees, and
supervisors as defined in the Act as amended. The exclusion of such employees,
in terms of the amended Act, will result in no substantial change in the unit
heretofore found to be appropriate by the Board!
Although the Respondents denied the Union's majority in the appropriate unit,
it offered no evidence in support of, its contention. On the contrary, the evidence
shows that at all times during the negotiations hereafter described, including the
conference on July 26, 1949, the Respondents accepted the Union as the !bar-
gaining agent for their employees and never questioned its majority status. The
Board's certification which was issued November 20, 1946, clothed the Union with
the status of exclusive bargaining representative of the Respondent's employees in
the appropriate unit. Such status is presumed to continue until shown to have
ceased or until such time as circumstances arise which indicate that the pre-
sumption no longer holds true.10 There are no circumstances in the record which
indicate that the presumption of the Union's majority status no longer holds
true.
The undersigned accordingly finds the appropriate unit to consist of all pro-
duction and maintenance employees employed by the Respondents including
truck drivers, but excluding checkers, office and clerical employees, watchmen,
professional employees, and supervisors as defined in the Act, and that at all
times material herein the Union was the duly designated representative of the
majority of the employees in said unit and that, by virtue of Section 9 (a) of the
Act, it was at all said times and still is the exclusive representative of the em-
ployees in such unit for the purposes of collective bargaining with respect to
rates of pay, wages, hours of employment, and other conditions of employment.
2. The refusal to bargain
a. Background and chronology of bargaining negotiations
Following the Union's certification as bargaining representative it requested
the Company to enter into bargaining negotiations. The Company assented and
the parties met in a series of bargaining conferences which continued intermit-
9 John Deere Killefer Company, 86 NLRB 1073; Mason and Hughes, Inc., 86 NLRB 848;
Marshall and Bruce Company, 75 NLRB 90.
10 Bethlehem Steel Company, 73 NLRB 277, 280; Dorsey Trailers, Inc., 80 NLRB 478,
485.
1. B. S. MANUFACTURING COMPANY 1281
tently over a period of 21 years. There were seven different sets of confer-
ences during this period, each conference averaging about 2 days. The first set
of conferences was held November 25 and 26, 1946; the second, December 16 and
17, 1946; the third, January 22 and 23, 1947; the fourth, October 28 and 29, 1947 ;
the fifth, December 2, 3, and 4, 1947; the sixth, June 24 and 25,,1948; and the
seventh, July 26, 1949. All of the conferences were held in New Albany, Missis-
sippi, the site of two of the plants here involved. The Union was represented
at the various conferences by representatives of the International Union and by
a committee of union employees of the Company. At the first four sets of confer-
ences, the Union's chief spokesman was Gladys Dickason, its vice president and
director of its southern region. At the fifth and sixth conferences, the chief
spokesman for the Union was Howard Mooney, an International representative
from Atlanta, who was actively assisted at the sixth conference by the Union's
attorney, Jerome Cooper, of Birmingham, Alabama. At the seventh and final
conference Cooper acted as the Union's chief spokesman. The Company's main
spokesman at all but the first conference, which lie did not attend, was their
labor relations attorney, Alexander E. Wilson, Jr., of Atlanta, Georgia. Wilson
was assisted at various of the conferences by the local attorneys for the Company,
by its accountant, Marion Winkler, and by several officials of the Company.
Since the General Counsel's case is based on the Company's alleged bad faith
generally, as well as on its refusal to bargain with respect to certain specific
clauses, the undersigned has summarized below the more pertinent discussions
and developments which took place during the period of the negotiations. The
Union's version of the bargaining meetings waste adduced mainly through the
testimony of Gladys Dickason, who testified regarding the first four meetings ;
Jerome Cooper, who testified regarding the sixth and seventh meetings, and
Lavinia George, a former union representative from Atlanta, who testified re-
garding the seventh conference. All of these witnesses had taken notes at the
conferences which they attended and used these notes to a greater or lesser
degree in refreshing their recollections while testifying. Sue Herrin , formerly
president of the local Union, also testified regarding the various meetings but
not having taken any notes at the meetings her recollection as to many of the
details was somewhat dulled by the passage of time. The Company's version
of what transpired at all but the first meeting was given by its attorney, Alex-
ander E. Wilson, Jr., who testified with the aid of notes made at the meetings.
Several of the other attorneys and the accountant, Winkler, also testified but
their testimony was limited mainly to certifying that Wilson's account of the
meetings was substantially correct. In the main, the testimony of the witnesses
for the General Counsel and the Company was in substantial accord with re-
gard to what transpired at the bargaining meetings. Most of the differences
in their respective accounts were in detail and emphasis, resulting from a per-
haps unconscious and natural inclination to place their protagonist in the most
favorable light possible. In the summary set forth below the undersigned has
based his findings upon a synthesis of the reliable, probative testimony of these
witnesses , without referring to differences in such testimony except where they
were substantial in nature.
b. The bargaining meetings and other relevant events
(1) The meeting of November 25 and 26, 1946
Dickason acted as the main spokesman for the Union at this meeting. Wilson,
the Company 's chief spokesman , was unable to be present but his then partner,
Paul Sanders, attended. A considerable part of the first day was spent in a
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discussion , brought about by questions from company representatives, of the
Union's history and operations , and its freedom from communistic influences.
The parties later went over a proposed contract which had been submitted by
the Union in advance of the meeting. This was a standard form of agreement,
the substance of which was then in effect with several hundred garment manu-
facturers. The meeting generally was of an exploratory nature with each party
seeking information from the other and with no serious effort to agree upon
any of the provisions of an agreement. As a result of the discussions, Dickason
indicated a willingness to withdraw certain of the clauses contained in the
Union's proposed agreement as being inapplicable to the situation in New Albany.
Among the clauses which Dickason indicated a willingness to drop was one
contained in article V of the agreement dealing with "Vacations." The clause
in question reads as follows :
Where the Union feels insecure as to the performance by a particular
employer of its obligation to make vacation payments pursuant to this
Article, it may require such employer to furnish such reasonable securities
and to execute such supplemental agreement for the periodic deposit of
moneys into a vacation fund as the Union deems necessary to assure the
full performance of the provisions of this Article by such employer.
Dickason stated to the company representatives that the clause in question was
only requested from firms which were in a shaky financial condition and since
she was sure this Company was not in that condition she would withdraw
that particular clause "
The meeting broke up with the understanding that the parties would meet
again in December. Dickason advised the company representatives that after
talking to the employees in the plant she wished to reserve the right to present
supplementary proposals covering rest periods, leaves of absence, seniority, and
the posting of notices.
(2) The meeting of December 16 and 17, 1946
The parties got down to a serious discussion of a collective bargaining agree-
ment at the second of the series of bargaining conferences. The Company's
chief spokesman, Wilson, was present at this conference as at all the following
conferences. At the outset of the meeting Wilson told Dickason that they had
studied the Union's proposal and that in his opinion it was not designed to
fit the situation in New Albany. He stated that the Company had drawn up
a counterproposal which they would submit the following day and that some-
where between the two was the basis for an agreement. Wilson also told
Dickason that he felt that no agreement with respect to any particular clause
should be binding until agreement had been reached upon the entire contract,
to which understanding Dickason assented." Jack Doran, an official of the
I' The above finding is based on Dickason ' s testimony , which was not substantially con-
tradicted . Leslie Darden , one of the company representatives, made a somewhat casual
reference during his cross -examination by union counsel to the fact that Dickason had
offered to withdraw this clause in the January 1947 or October 1947 meeting. In view of
the certainty of Dickason's recollection and the fact that none of the company representa-
tives denied that she made the offer at the first meeting, as well as the fact that this clause
does not appear to have been the subject of any serious discussions at the later conferences,
the undersigned is satisfied that the offer took place at the first meeting as testified by
Dickason.
u The above finding is based on the testimony of Wilson, which was not contradicted by
Pickason . Although Cooper denied that he knew of any such understanding , he was not
present at the earlier conferences and would therefore not be in a position to give direct
testimony of any understanding which Wilson had with Dickason.
I. B. S. MANUFACTURING COMPANY 1283
Company , reminded Dickason of his understanding with her that pending the
reaching of an agreement on a vacation clause the Company was going to mail
the employees their vacation payments for that year, to which Dickason made
no objection "
During the early part of the meeting Dickason presented several supplementary
proposals, covering the subjects of seniority, posting of notices, leaves of absence,
and rest periods. The seniority proposal provided that in "filling vacancies and
determining layoffs, promotions , and re -employment , seniority shall govern where
ability is substantially equal." The proposal further provided that seniority
would be "by department" and required the periodic posting of seniority lists
by the Company. No agreement was reached on this proposal at this meeting.
The Union's leave-of-absence proposal provided, in substance, that employees
could have a leave of absence on account of illness for a period not to exceed
6 months, without loss of seniority and other rights. The company representa-
tives agreed to take this proposal under consideration. The proposal on posting
of notices provided that union representatives would have the right to post
notices on the bulletin board and distribute notices in the plant before and after
working hours. The company representatives stated that if agreement was
reached on the balance of the contract, this provision would not stand in the way
of an agreement. The Union's proposal on rest periods called for two 15-minute
rest periods, one in the morning and one in' the afternoon. The Company
agreed to a 10-minute rest period and agreed to put it into effect immejia,tely"
The parties then proceeded to discuss the Union's main proposal which had
been submitted at the November meeting. The company representatives ex-
pressed their opposition to the clause in this agreement providing for a closed
shop. Dickason advised the company representatives that although the Union
preferred a closed shop, it would accept a maintenance-of-membership arrange-
ment or a preferential shop. Wilson suggested that she submit language on
such a proposal. The company representatives also expressed opposition to
the provision in the Union's proposal which provided for the payment of over-
time compensation for work in excess of 8 hours per day. They likewise indi-
cated their opposition to the Union's proposal on "reporting time" which called
for a minimum guarantee of 4 hours' pay whenever an employee reported for
work at the required time and was sent home. Objection was also voiced to the
"waiting time" provision in the Union's proposed contract, which provided that
all waiting time on account of machine breakdown or lack of work, in excess
of 15 minutes per day, be paid for at the employee's average hourly rate of pay.
On the subject of wages, although the Union's proposal called for a general wage
increase of 10 cents per hour, Dickason advised Wilson, after having conferred
'3 The above finding is based on Wilson 's testimony which was not contradicted by
Dickason According to his testimony the Union did not oppose , pending final agreement
on a vacation clause, the Company's giving its employees a week off between Christmas and
New Year's in 1946, with pay
14 The above finding is based on Wilson 's credited testimony . According to Dickason,
the discussion on rest periods did not take place until the following conference , and there
was no agreement to put it into effect immediately. Since Dickason ' s testimony indicates
that at the November conference she reserved the right to submit additional proposals on
rest periods , leaves of absence, seniority , and the posting of notices at the next meeting,
and that she did in fact present proposals on the last three-mentioned items at the Decem-
ber meeting , it seems likely that the item of rest periods was likewise discussed at that
meeting. Likewise, since the record does not indicate that the Union ever made objection
at any of the conferences to the Company 's instituting a 10-minute rest period , it would
appear likely that, as testified by Wilson, the Union was advised that the Company was
going to take such action and , either expressly or tacitly , assented thereto.
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the Company's industrial engineers, that she wanted more time to study the
matter before making a definite proposal."
. On the second day of the negotiations the Company presented its own proposed
contract. Since the union representatives had not had an opportunity to study
the Company's proposal, it was not discussed at any great length. However, they
indicated that they were shocked to see that a large part of it was taken up with
provisions requiring the Union to put up performance bonds, and that the Com-
pany reserved the right to lower wages and take away vacation benefits. When
reference was made to the bond provision, Wilson reminded Dickason that the
Union's original proposal had provided for a bond to assure payment of vacation
benefits by the Company, but assured her that the bond was put in the agreement
primarily for bargaining purposes. The conference broke up with the idea that
the parties would meet again in January to see if they could find a middle
ground between the two proposed contracts.
(3) The meeting of January 22 and 23, 1947
Dickason had prepared in advance and brought with her a list of alternative
union-security provisions, ranging from, a union shop to a provision merely that
the Company would advise the employees that the Union was certified as the
bargaining agent in the plant, which she read to the company representatives.
They were unwilling to agree to any of these proposals and offered no counter-
proposals. The subject of checkoff was then discussed. The checkoff provision
in the Union's proposal provided for deductions from employees' wages to cover
dues, initiation fees, and assessments. When the company representatives indi-
cated their unwillingness to accept this provision, the union representatives
offered to modify the clause so as to provide for a checkoff of dues only. This
proposal was likewise unacceptable.
The discussion then shifted to the proposed contract which the Company had
submitted at the previous meeting. The union representatives requested modifi-
cation of article II in the Company's contract which provided that employees
would not have the right to carry on union activities "during working hours" and
which prohibited union representatives from going upon company property
"without the express permission in advance of an officer of the Company." The
Union suggested the insertion of language which would permit the carrying on
of union activities during rest periods and such other times as would not inter-
fere with production, and also suggested that union representatives be permitted
to visit the plant "at all reasonable hours for the purpose of ascertaining whether
the provisions of this agreement are being fully complied with" without the
necessity of obtaining written permission in advance. The Company was un-
willing to accept any of these proposed changes. On article III of the Company's
proposal which provided for overtime after 40 hours, but not on a daily basis
as did the Union's proposal, Dickason stated that the Union wanted a provision
for time and a half after 8 hours, not because they were interested in collecting
the overtime, but to act as a deterrent to such work. Wilson advised her that
the Company was unwilling to agree to any provision for overtime compensation
15 In his testimony, Wilson claimed that Dickason took the position that the Union would
not sign any contract which did not provide for a wage increase. However, on cross-
examination Wilson admitted that Dickason had informed the company negotiators that
the Union was not requesting section 1 of article IV (the general wage- increase clause)
of its proposal , and he testified that this provision had been marked out on his copy of
the proposed agreement . The undersigned believes that Wilson was mistaken in his testi-
mony and finds that although Dickason may have indicated that a wage provision was one
of the Union's main demands, she did not make the flat statement at this meeting that
the Union would not sign any contract without a wage increase.
I. B. * S. MANUFACTURING COMPANY 1285
after 8 hours per day. Discussion then proceeded to article IV of the Company's
proposal dealing with reporting time and article V dealing with machine delay
time. On reporting time the Company's proposal called for a minimum guaran-
tee of 2 hours' compensation to employees who reported for work and were sent
home, as compared with the Union's proposal which provided for a minimum of
4 hours' reporting time. The Company's proposal further provided that even the
2 hours' reporting time pay would not be paid where the Company's inability to
give employees sufficient work was due to the failure of other employees to report
for related work. Dickason urged the company representatives to accept the
provision for 4 hours' pay for reporting time. She also argued that the Company
should not be relieved of its obligation to pay for reporting time, either 2 or 4
hours, where the lack of work was due to the failure of other employees to report
for work, unless the Company had taken reasonable steps to provide utility
operators so as to take care of normal absenteeism. The company representatives
were unwilling to accept any of the modifications proposed. On the subject of
waiting time, the Company's proposal called for compensation for waiting time in
excess of 15 minutes only where such waiting was due to machine breakdown,
while the Union's proposal called for compensation where the delay was due to
lack of work as well as machine breakdown. Likewise, the Company' s proposal
called for compensation "at the minimum rate" while the Union's proposal pro-
vided for pay at the employee's "average hourly rate." Dickason's suggestions
that compensation for machine delay time also include delays due to waiting
time, and that it be paid for on the basis of the average hourly rate rather than
the minimum rate, were unacceptable to the company representatives.
On the subject of wages, article VI of the Company's proposal provided that
the wages then in effect would remain in force for the duration of the agreement.
It further gave the Company the right to establish rates for "new or changed
operations and for individual piece or time-work rates." Dickason objected
to the freezing of rates then in effect and requested a 15-cent an hour increase,
to which the company representatives were unwilling to agree'' She further
objected to the provision that new or changed rates and individual piece rates
would be established by the Company unilaterally and requested that any such
change in rates be made only after consultation and agreement with the Union.
Wilson advised her that the Company would not change its language. Article
VII of the Company's proposal contained a further provision on the subject
of wages to the effect that the Company could unilaterally reduce wages upon
10 days' notice to the Union when, "in the judgment of the Company, conditions
change so as to make it unable to maintain its competitive position under the
prevailing wage rates." This article also contained a proviso under which
the Union's objection to a proposal by the Company to reduce rates would not
be subject to arbitration. The Union requested that any reduction in rates
be made only after consultation and agreement with it and that where the parties
were unable to agree it be submitted to arbitration. The company representa-
tives were unwilling to make any change in this provision.
16 According to Wilson , Dickason again made the statement at this meeting that the
Union would never sign a contract without a wage increase . Dickason denied having made
such a statement but admitted having advised the Company that the Union had never, to
her knowledge , entered into an initial agreement which did not provide for some increase
and that, in her opinion , the wage situation in the Company's plants justified some increase.
Based upon his observation of Dickason on the witness stand, and in the light of the
Union 's general conciliatory attitude and willingness to make concessions , the undersigned
is not convinced that Dickason ever made the categorical statement attributed to her by
Wilson, although the undersigned has no doubt that Dickason did make it clear that the
item of wages was a key demand in the Union 's proposals.
Ave 176-52-vol. 96-82
1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the subject of vacations , article VIII of the Company 's proposal provided
for 1 week 's paid vacation , with payment to be computed on the basis of 2
percent of the employee 's annual earnings . The union representatives urged
acceptance of the vacation provision in their own proposal which provided for
an additional week 's vacation for employees having 5 years or more service with
the Company and computed vacation benefits on the basis of the employee's
weekly earnings rather than on a percentage of annual earnings . Wilson
stated that if agreement were worked out on the entire contract , the Company
might consider giving the employees with 5 years or more service with the
Company 2 weeks' vacation , with payment on the basis of 4 percent of their
annual wages . With respect to the subject of holidays , the Company ' s proposal
provided that employees would "not normally be required to work" on five
stated holidays , but unlike the Union 's proposal , contained no provision for pay-
ment for the holidays or any provision for premium compensation in the event
the employees were required to work on these holidays . The parties were
unable to reach agreement on this subject . On the subject of layoffs and rehiring,
article X of the Company ' s proposal provided that in the event of lay-offs and
rehiring "the Company shall make decisions on the basis of the ability of the
employees affected, with due consideration being given to length of service."
Dickason sought to induce the Company to accept the provision contained in
the Union ' s security proposal that in "filling vacancies and determining layoffs,
promotions , and reemployment , seniority shall govern where ability is sub-
stantially equal." She objected particularly to the fact that under the Com-
pany 's proposal it would have the sole discretion with respect to layoffs and.
rehiring. The company representatives were unwilling to change their proposal.17
One of the pivotal subjects discussed was that involving the matter of griev-
ances and arbitration . Under article XV of the Union ' s proposal , all complaints,
grievances, or disputes arising under the contract were to be submitted to the
representatives of the parties for adjustment and where they were unable to
adjust any matter within 5 days it would be turned over to an impartial chair-
man agreed upon between the parties , or in the absence of an agreement by the
parties on such chairman, to one chosen by the United States Conciliation Serv-
ice. The Union also committed itself to engage in no strikes or work stoppages
during the term of the agreement . The Company 's proposal differed from that
submitted by the Union both with respect to the provision for an impartial
chairman and with respect to the requirement for compulsory arbitration of
grievances . Under the Company 's proposal unsettled grievances were to be sub-
mitted to arbitration only where the parties "mutually agree." It further pro-
vided that each of the parties would select an arbitrator , that each of these
arbitrators would then select a third arbitrator , and that where the two arbitra-
tors were unable to agree upon a third arbitrator he would be selected by the
United States District Judge for the Northern District of Mississippi. The
Union urged that the impartial arbitrator be chosen either by the United States
Conciliation Service or the American Arbitration Association and also requested
the Company to delete the provision in its contract that grievances would be
submitted to arbitration only where the parties "mutually agree" to do so. On
14 The above finding is based on Dickason 's credited testimony . In his testimony Wilson
stated that it "looked very much like we were pretty much together on seniority ," except
that Dickason was not sure whether the Union wanted company-wide , departmental-wide,
or plant-wide seniority . In view of the rather general nature of Wilson 's testimony on
this subject , the undersigned accepts Dickason ' s more specific version of the discussion on
this subject . Testimony of later conferences indicates that the Company continued to
insist that it retain the sole discretion with respect to lay-offs and reemployment.
1. B. S. MANUFACTURING COMPANY 1287
the proposal to delete the "mutually agree" clause from the Company's con-
tract , so as to provide in effect for compulsory arbitration of grievances , Wilson
.stated that the Company was unwilling to modify its proposal "at this time."
On the first suggestion , Wilson asked Dickason to submit to him a list of persons
who would be willing to serve as arbitrators . This she subsequently did but the
company representatives never indicated any willingness to recede from their
position that the third arbitrator be chosen through the medium of the United
.States district ,court judge.
Another important subject resulting in disagreement between the parties was
the provision in the Company 's proposal for the furnishing of performance bonds
by the Union . Article XII of the Company ' s proposed contract contained two
provisions relating to the furnishing of performance bonds by the Union. Under
the first provision the Union was required to agree that it would not "directly,
or indirectly , through word , action, silence or inaction , discriminate against
.any nonunion employees nor subject such nonunion employees to any harass-
ment, intimidation , or mistreatment ." The clause provided that any violation
of this undertaking would subject the Union to a penalty of $1,000 as liquidated
damages, and required the Union to post a surety bond in the sum of $25,000
to insure compliance with its obligation . Article XII further provided that the
Union would not engage in any strikes , work stoppages , or slowdowns and that
any violation thereof would subject the Union to liquidated damages in the sum
of $1,000 per working day . To insure compliance with this provision , the Union
was required to post an additional surety bond in the sum of $50,000 . Dickason
advised Wilson that in more than 35 years she had never heard of any such
request for performance bonds being made of the Union, and she called atten-
tion to a Supreme Court decision discussing the contributions made by the
Union toward securing industrial peace in this country, as well as to various
citations received by it for its record of industrial peace. She stated that it
was an unfair request to make of the Union and that it could not be granted.
Wilson replied that the Company wanted to place the Union in the same posi-
tion as the Company ; that the Company had property in Mississippi and if it
violated the contract the Union could collect ; and that unless the Union put
up a bond, he did not feel assured that they could sue the Union in the State of
Mississippi . He stated that the Company would not withdraw this provision.
Another clause in the Company 's proposal to which the Union took exception
was article XV, the so-called "management prerogative" clause. Among the
matters upon which management reserved the sole discretion was the sole right
"to discharge [ employees ] for such cause or causes as the Company deems justifi-
able." She pointed out that this provision was in conflict with article X of
the Company 's proposed agreement which, although giving the Company
sole discretion with regard to layoffs , required it to give "due consideration" to
seniority . Wilson stated that he would be willing to change anything in that
clause which was contrary to the earlier seniority provision in the Company's
contract , but that the question of whether there was just cause for discharge
must be within the discretion of the Company and not be subject to arbitration.
The negotiations finally broke off with the parties unable to reach agreement
on any of the substantial provisions of a collective -bargaining agreement.
Dickason stated to the company representatives that if they let matters rest
for a while and the employees demonstrated , in their taking up of grievances,
that the Union was in good faith, they might be able to get together again at a
future date and reach agreement.
1288 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
(4) The meeting of October 28 and 29, 1947
After a lapse of about 10 months, another bargaining meeting was arranged
for October 28, 1947, with Dickason taking the initiative in arranging for the
renewal of negotiations.1' Dickason had prepared in advance and brought with
her proposed language on several of the objectionable clauses in the Company's
proposal. With respect to article II which prohibited union representatives
from going on company property without express written permission in advance,
Dickason suggested language that a union representative be permitted to visit
the plant "to investigate grievances under this contract upon notice to the Com-
pany." When this was refused, she suggested that language be inserted in the
contract to the effect that permission from the Company to union representatives
to visit the premises for the purpose of taking up union business would not be
"unreasonably withheld." This proposal was likewise unacceptable to the com-
pany representatives. Dickason also suggested that the clause prohibiting the
carrying on of union activities "during working hours" be modified so as to
provide that discussions with union stewards before working hours would not
be regarded as union activity. Wilson replied that the Company regarded the
half hour before and after work as part of the work day and would not permit
any union activity during this period.
The subject of union security was again discussed, with Dickason stating that
the Union was no longer requesting a closed shop in view of the passage of the
Taft-Hartley Act and that it was willing to accept a union-shop provision, after
an election to be conducted under the Act. Wilson stated that in his opinion
the parties were prohibited from discussing any provision for union security
until after the Union had won a union-shop authorization election. On the
subject of overtime compensation, the union representatives indicated that they
would be willing to withdraw the provision in their agreement calling for the
payment of overtime compensation for work after 8 hours, if the Company would
agree that it would not require any employees to work outside of the regular
working hours. Wilson stated that the hours worked by employees was a man-
agement prerogative and refused to include any such provisions in the contract 1'
On the subject of wages, Dickason stated that although the Union was asking
for an increase of 15 cents per hour, they were open to any reasonable offer
from the Company. She also indicated that the Union was willing to withdraw
its request for paid holidays and for contributions by the Company to a union
insurance plan if the Company would make an offer on wages. Wilson stated
that the Company was not willing to increase its labor costs at that time.
Dickason again voiced objection to the fact that under the Company's wage pro-
posal rates for new or changed operations and individual piece rates were to be
established by the Company in its sole discretion, without consultation with the
Union. Wilson replied : ". . . the duty and prerogative of setting wage rates
must remain with [the Company]. I cannot have outsiders handling this
matter." 20 Dickason also asked Wilson if the Company would agree to with-
draw the provision in its contract which gave it the right to reduce wages when,
in its discretion, economic conditions justified it. Wilson stated that the Com-
pany would not withdraw this proposal.
Discussion again turned to the subject of furnishing of performance bonds
by the Union. When the company representatives indicated their unwillingness
18 The evidence discloses that in the intervening period committees of employees
attempted to take up grievances with management officials but were rebuffed.
10 Under the management prerogative clause of the Company 's proposal "the number and
times of shifts operated" was to remain in the sole discretion of management.
20 The above quotation is from Wilson ' s own testimony.
I. B. S. MANUFACTURING COMPANY 1289
to withdraw this provision, Dickason told Wilson that if he would state in writing
that it was the position of the Company that they would not bargain unless the
Union agreed to a bond they would save the Union a lot of time. Wilson replied,
according to Dickason, that "he was willing to discuss the other clauses and if
we agreed on everything and then couldn't agree on the bond that we might be
able to work out an agreement." The subject of arbitration of grievances was
also brought up and Dickason reminded Wilson of his statement at the previous
meeting that the Company would consider the possibility of deleting the clause
.which made arbitration subject to the mutual agreement of the parties. She
stated that the Union would agree to the Company's proposal if they would
delete the words "mutually agree" from the arbitration clause. Wilson replied
that the Company was unwilling to delete this provision.
Toward the end of the conference Dickason reviewed the various provisions
of the company agreement and asked if the company representatives were willing
to make any change in these provisions. Wilson replied that : "The Company
will stand on its language." She then advised him that it didn't seem to her
that what was going on at these conferences constituted bargaining in good faith.
Wilson then read to Dickason the following statement :
The Company has offered to consider and change, if agreeable, any word,
phrase, clause, sentence, paragraph, or article in either of our proposals. We
offer to put in writing and sign any agreement reached. We consider that
you have broken off negotiations by refusing to further negotiate with us. 21
Dickason pointed out to Wilson that they had been over every single para-
graph, that she had suggested numerous alternatives, and that the Company
had been unwilling to agree to any change in the proposals and that she didn't
see what was to be gained by going over it all over again. She nevertheless
stated that she was willing to start at the beginning and see what the Company
was willing to bargain about in the agreement and whether there were any
changes that the Company was willing to make. They went over the first 6
or 7 articles in the Company's proposal and Wilson reiterated his statement:
"The Company stands on its language." Dickason then stated that this was the
second time at this conference that they had received that reply and that it
didn't seem to be bargaining and she felt they should terminate the discussions.
As they got up to leave Wilson again read her the statement that he had
previously read about being willing to bargain. Dickason asked him whether.
there was anything in the whole agreement which he was willing to change,
and received no definite response.
The following day Dickason received a letter from Wilson in which he
again repeated the statement which he had read to Dickason at the meeting
and stated that the Company was ready to meet with the Union at any time
to discuss entering into a collective bargaining agreement. Dickason did not
reply to this letter. a
(5) The meeting of December 2, 3, and 4, 1947
At the fifth conference between the parties Howard Mooney, an Interna-
tional representative from Atlanta, took over Dickason's burden as main spokes-
man for the Union. Although Dickason was in New Albany at the time she
did not participate in the conference. The testimony regarding this conference
reveals little of the actual discussion between the parties. Mooney, who is no
longer connected with the Union, was not available as a witness. Most of the
n According to Wilson , he had written out this statement in advance of the meeting and
read it to Dickason because he was cognizant of the possibility that the Union might file a
charge of refusal to bargain.
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testimony regarding this meeting was given by Wilson and was of a somewhat
general nature. According to Wilson's testimony, the parties went over the.
proposals which each had submitted at the earlier meetings, and at the end
of the conference Mooney stated that the parties "were together with the-
exception of one or two minor points." Mooney undertook to prepare a new
proposal which would incorporate the matters upon which agreement had been
reached as well as proposals on the subjects upon which there had been no-
agreement.
Since Wilson's testimony was not contradicted, it must be assumed that
Mooney made the optimistic statement attributed to him. However, the pro-'
posal subsequently submitted by Mooney as well as the discussions which took
place thereon at the following conference reveal a lack of agreement on many
substantial issues and would indicate that Mooney's statement was mere wish-
ful thinking probably made in the hope of inducing further concessions from
the Company 22
Although the testimony reveals very little of the discussions that took place
on specific issues at this meeting, it does appear that one of the issues discussed
was the question of wages. In connection with the Union's request for a mini-
mum wage of 65 cents per hour , the Company's accountant , Winkler , made the,
statement that the "money barrel had been scraped and that [the Union]
wanted them to bust it." ss
(6) The meeting between Mooney and Wilson
In accordance with his promise made at the December meeting, Mooney
prepared a new proposal and submitted it to Wilson in the latter's office in
Atlanta around January 12, 1948. According to Wilson's testimony, during the
course of his discussion with Mooney, he advised the latter that the bond "would
not stand in the way of an agreement ." He further told him that the only
thing that "bothered" him "about the whole business" was the question of wages,
that there was virtually no profit in the individual shirt, that the volume had
to be very great before it would be profitable, and that the competitive situation
in the industry was such that it was utterly impossible for the Company to pay
more than the people with whom it was in competition. According to Wilson, he
also advised Mooney that he had never objected to a checkoff, that he had made
the statement at the December meeting that if they were going to have a Union
everyone should belong, and that he had previously signed contracts for a union
shop 2' In connection with the discussion on arbitration, Mooney stated to Wilson,
according to the latter's testimony, that the Union had signed contracts in the
past which provided for arbitration only when the parties mutually agreed to
arbitrate.
(7) The meeting of June 24 and 25, 1948
Although Mooney submitted the Union's new proposal to Wilson in January
1948, for some reason not appearing in the record the next conference was not
22 Although Darden corroborated Wilson's testimony regarding the optimistic statement
made by Mooney, his testimony on cross-examination reveals that the parties had not
reached agreement on at least the following substantial issues : Union security, checkoff,
wages, arbitration procedure , and the performance bond
23 The above finding is based on the testimony of Sue Herrin, president of the local
Union, who was a member of the bargaining committee. Herrin's testimony was not con-
tradicted by Winkler, who was present throughout the hearing and later testified regarding
the bargaining meetings.
24 In connection with Wilson 's testimony purporting to recount what had happened in
the December meeting, it may be noted that his fellow negotiator , Darden , testified that
there had been no agreement on a checkoff at the December meeting and that he had no,
recollection of any discussion as to union security.
I. B. S. MANUFACTURING COMPANY 1291
held until June of that year. At this meeting, Mooney was again present as the
main spokesman for the Union and was accompanied for the first time by the
Union's attorney, Jerome Cooper. At the outset of the meeting Wilson stated
that "the bond issue was the thing we should get together over first before we
get to anything else." The parties discussed the legality of the Company's
request for the furnishing of a performance bond by the Union, and Cooper ex-
pressed the opinion that such a request was illegal under decisions of the Board.
The parties then proceeded to a discussion of the Mooney proposal. The under-
signed has set forth below a summary of the provision of the Mooney proposal,
together with the discussion of the parties in connection therewith.
Recognition (Article I)
Except for one or two minor changes on which the parties had previously
agreed, article I, dealing with recognition of the Union by the Company, was
substantially the same as article I in the Company's proposal. The only discus-
sion on this clause was that in view of the passage of the Taft-Hartley Act,
watchmen should be excluded from the unit to be recognized by the Company.
Noninterference (Article II)
This clause was substantially the same as article II of the Company's proposal
previously discussed. It provided, in substance, that the Company would not in-
terfere with the rights of the employees to engage in union activities and con-
tained a parallel agreement by the Union not to coerce nonunion employees into
joining the Union. The only discussion which took place with regard to this
clause related to the right of union representatives to go upon the premises.
Although the Mooney proposal, like the Company's proposal, required permission
in advance for representatives of the Union to go upon the premises, it contained
an exception permitting such right of visitation "at all reasonable hours" to
union representatives to do so "for the purpose of ascertaining whether the pro-
visions of this agreement are being fully complied with." According to Wilson,
the Company agreed to accept the language of the Mooney proposa126
Management Prerogatives (Article III)
This clause was substantially similar to Article XV of the Company's proposal
dealing with management prerogatives except that (1) the right to discharge
"for such cause or causes as the Company deems justifiable" in the latter proposal
was changed to permit discharges only "for just cause," and (2) the proviso
giving the Company sole discretion in determining the number and times of
shifts operated and in assigning employees to various classes of work was omitted
from the Mooney proposal. The record does not indicate what agreement the
parties reached on this clause, except for Wilson's ambiguous testimony that
the Union "omitted a large part" of this article.
Discharges (Article IV)
The Mooney proposal provided that discharges would be made "for just cause"
and gave the Union the right to question any discharge through the grievance
and arbitration procedure provided for later in that proposal. The record does
ss The above quotation is from Wilson's own testimony
26 Cooper testified that there "seemed to be almost agreement" on the right of visitation
by union representatives, except that Wilson insisted permission would have to be obtained.
The undersigned accepts Wilson 's testimony , based on his notes made at the meeting,
regarding the acceptance of article II of the Mooney proposal.
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not indicate what agreement was reached with respect to this clause except that
the discussion of discharges and the right of employees to question discharges
through the grievance and arbitration procedure led to a discussion of that sub-
ject, which is contained in article XIV of the Mooney proposal, and will be later
discussed.
Checkoff (Article V) and Union Security
The Mooney proposal called for a checkoff of dues only , unlike the original
union proposal which also provided for checkoff of initiation fees and assessments
and required the Company to keep such funds separate from the Company's
general funds as a "trust fund." With regard to this clause Wilson stated that
if the parties reached agreement on the balance of the contract , the checkoff
provision would not stand between them. For some reason not appearing in the
record, the Mooney proposal did not contain a separate clause dealing with union
security but from the discussion which took place it seems evident that the
Union had not dropped this demand . The discussion of a checkoff provision
prompted Cooper to ask if there was any possibility of agreeing on a union secu-
rity clause , subject to the holding of an appropriate election . The Company rep-
resentatives indicated that they would take the matter under advisement.
Layoffs and Reemployment-Seniority
(Article VI)
Under this article it was provided that "in filling vacancies and determining
layoffs and reemployment, seniority shall govern when length of continuous serv-
ice and ability to perform the work are comparatively equal." The article fur-
ther provided that seniority would be "by department in each plant," and that
the Company would post seniority lists periodically.
The testimony reveals that the parties agreed to accept in lieu of this clause,
article X of the Company's proposal under which the Company was given the
sole discretion in making layoffs and in rehiring. The only apparent restriction
on its exercise of discretion was that its decision was to be made "on the basis
of the ability of the employees affected" and that it was to give "due consider-
ation" to seniority.
Overtime-Rest Periods (Article VII)
This article provided for payment of overtime compensation for work in excess
of 8 hours per day as well as 40 hours per week ; that the Company would dis-
cuss with a union committee any proposed changes in the schedule of work
hours ; and that employees would have a rest period of 10 minutes twice a day.
After some discussion among the parties, the Union agreed to withdraw the
provision for payment of overtime after 8 hours. According to Wilson, the Com-
pany otherwise agreed to accept this proposal.
Wages (Article VIII)
This article provided for a general wage increase of 15 cents per hour, with
a minimum wage after 6 months of 65 cents per hour, and that rates for new
or changed operations and individual piece rates would be determined by mutual
agreement between the parties, with provision for arbitration in the event of
lack of agreement on this subject. On the question of a wage increase, Wilson
advised the Union that there was no possibility of an increase at that time.
According to Cooper's uncontradicted testimony, Winkler, the Company's ac-
I. B. S. MANUFACTURING COMPANY 1293
countant , also made the statement that : "We are mot going to operate at a
loss ; and , if you people insist upon a wage increase we can shut the plant down"
Although the Company did not agree to an increase , it was Wilson's uncontra-
dicted testimony that it did agree to the provision in this article that new or
changed rates and individual piece rates would be established by mutual agree-
ment of the parties rather than by unilateral action of the Company.
Reopening on Wages (Article IX)
This clause gave each party the right to reopen on the question of wages in
the event of a change in economic conditions. Under article VII of the Com-
pany's proposal it had the unilateral right to reduce the existing general wage
scale, upon 10 days notice to the Union. According to Wilson's testimony the
Union agreed to withdraw this article because of the Company's acceptance of
article VIII of the Mooney proposal. According to Cooper's testimony, how-
ever, there was no agreement by the Union to withdraw this clause and Wilson
was unwilling to accept the proposal that either party have the right to reopen,
on 10 days' notice, for the purpose of renegotiating wage rates. The under-
signed credits Cooper's testimony because his recollection on this point appeared
to be clearer and because Wilson was apparently confused in his testimony with
regard to what agreement the parties had reached on article VIII 27
Vacations (Article X)
This article provided for 1 week's vacation with payment to the employee of
2 percent of her earnings during the year, except that employees with 5 or more
years of service were to receive 2 weeks' vacation and payment of 4 percent of
their yearly earnings. Neither Cooper's nor Wilson's testimony indicates what
agreement was reached on this subject. However, according to the testimony,
of Sue Herrin, the Union agreed to accept the Company's vacation plan then In
effect which called for only 1 week's vacation regardless of the period of service.
Holidays (Article XI)
This article provided for 5 unpaid holidays during the year, with provision
for payment of time and one half compensation for any work performed on the
holidays. After discussion between the parties, the Union agreed to delete the
provision for premium compensation for work on the holidays, so that the clause
conformed substantially to the Company's proposal.
Reporting Time and Waiting Time (Articles XII and XIII)
The Mooney proposal covering these items was substantially the same as
equivalent provisions in the Company's proposal and was less liberal than sim-
ilar clauses in the Union's original proposal. The record does not indicate
whether final agreement was reached on these clauses. However, with the modh
fications contained in the Mooney proposal there,would appear to have been no
impediment to the reaching of agreement on these clauses.
rr According to Wilson's testimony the parties had reached substantial agreement on
article VIII, except for the actual wage rates. However, when the first two paragraphs
dealing with a general wage increase and minimum wage rates are deleted from this para-
graph, nothing remains in that article except the provision that rates for new or changed
operations and individual piece rates were to be determined by mutual agreement. This
latter provision does not deal with the situation covered by article IX, namely a reduction
of the existing general wage scale.
1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Grievances and Arbitration (Article XIV)
The main differences between this article and article XIV of the Company's
proposal were: ( 1) The Mooney proposal provided for compulsory arbitration
of unsettled grievances , while the Company's proposal provided for arbitration
only where the parties "mutually agree" ; and ( 2) the Mooney proposal provided
for the choosing of the impartial arbitrator through the American Arbitration
Association , while the Company's proposal provided that he would be chosen by
the Federal district court judge in Mississippi. The Union offered to allow the
third arbitrator to be chosen through the medium of the Federal judge providing
the Company would agree to withdraw the provision in its agreement which per-
mitted arbitration only when the parties mutually agreed to arbitrate. The
Company was unwilling to accept the proposal for compulsory arbitration of
grievances.
Equalization of Work (Article XV)
This article provided that where the Company did not have enough work for
all employees such work as was available would be equally divided among the
employees, as far as practicable. The Union agreed to withdraw this clause
since it had previously indicated in connection with the discussion of article
VI that the Company would have the sole right to decide the question of layoffs,
in accordance with article X of the Company's own proposal.
The record does not indicate what discussion was had with respect to'the
other five provisions of the Mooney proposal , none of which dealt with matters
of substance . During the afternoon of the second day of the conference,
the discussion again returned to the question of the Union's furnishing of per-
formance bonds. Fred Smith, one of the Company's local attorneys, told Cooper,
according to the latter ' s uncontradicted testimony , that the bond "is in the back-
ground of our thinking" and that the Company was concerned about the fact
that it would be unable to sue the Union in Mississippi for breach of the contract.
Cooper pointed out that under the Taft-Hartley Act the Union was amenable
to suit by the Company. The company representatives replied that this only
gave them a right of action in the Federal courts and that they might want to
sue in the State courts. After some discussion on the point, Cooper offered to
appoint the president of the local union as agent for purposes of effecting service
on the International Union and pointed out that a judgment thus obtained
would be good anywhere. This suggestion was agreeable to the company
representatives but they pointed out that this only solved part of the problem
since the Union did not have any assets in Mississippi . There was further
discussion about the ' financial responsibility of the Union and mention was
made by some of the union representatives about the fact that the Union had
substantial assets in the form of United States Government bonds. Wilson
then proposed that instead of the Union posting a surety company bond, the
Company would be willing to accept in lieu thereof the deposit of $75,000 in
Government bonds in a bank or trust company in New Albany to insure com-
pliance by the Union with its obligations under the contract. Cooper asked
Wilson whether, if the Union agreed to such a proposal, the Company would
grant it union security or compulsory arbitration or an acceptable clause on
wages. Wilson was unwilling to make a commitment , stating that the Company's
decision on these matters would be "influenced" by what the Union was willing
to do on the new bond proposal. Cooper and Mooney indicated ,that they had
no authority to agree to such a proposal and would have to call Dickason in
New York. They thereafter made an effort to telephone her but were unable
1. B. S. MANUFACTURING COMPANY 1295
to reach her since she had already left her office for the week end , it being late on
Friday afternoon. They advised the company representatives of this fact and
stated that they would try to reach her again on Monday. Cooper again at-
tempted to discuss the issues which were still outstanding but Wilson stated that
nothing could be solved until they got an answer on his latest proposal regarding
the bond. The parties adjourned with the understanding that they would re-
convene on July 14 and that in the meantime Mooney would advise Wilson as
to the Union's answer on the new bond proposal's
(8) Further correspondence and communications between the parties
Following the June 194S meeting, the company representatives scheduled a
meeting with its president, Schwabe, for July 5 in Wilson's office in Atlanta to
consider its further strategy, expecting in the meantime to receive an answer
from Mooney on Wilson's latest bond proposal The company representatives
met in Atlanta on July 5 without having heard from Mooney. On July 6 when
Daiden returned to New Albany, Mooney came to see him at his office and ad-
vised him that the Union was not going to give the Company an answer on the
latest bond proposal.29 Darden immediately advised Wilson of Mooney's reply.
,On July 8, 1948, Wilson wrote Mooney a letter stating that he had received word
from Darden that Mooney had advised him the Union was "withholding decision
on the . . . employer's latest proposal concerning bonds pending a definite com-
mitment from employer with respect to three matters; namely, (1) arbitration,
(2) union security, and (3) wage reopening clause." The letter continues that
Mooney's advice to Darden "was directly contrary to our understanding reached
Friday, June 25, that you would advise the undersigned as to\the Union's position
on our latest proposal concerning bonds not later than Monday, June 28." The
letter also calls attention to the fact that the company representatives had ar-
ranged to meet in Atlanta on July 5 in the expectation of discussing "your prom-
ised answer and take action thereon." The letter concludes by calling off the
July 14 meeting since "we do not see any purpose in holding another meeting
. . . -until you carry out your promise and give us a commitment in writing with
respect to the latest employer proposal on bonds." Shortly after the sending of
this letter Wilson received a telephone call from Mooney advising him he had
severed his connection with the Union.
On September 10, Wilson received a telephone call from a representative of the
United States Conciliation Service in Atlanta, advising him that Cooper had
turned the case over to the conciliation service and he asked Wilson what the
Company's position was. The following day, Wilson received a letter from
Cooper accusing him of having cancelled the July 14 meeting. The letter further
states that the Union had repeatedly made concessions to the Company, including
28 Cooper testified that he had no recollection of Mooney having promised to communi-
cate with the Company prior to the next meeting . The company representatives all testi-
fied that such a commitment was made. There appears to be support for their position
in the letter thereafter written to Mooney by Wilson and in the fact that Mooney did com-
municate with Darden prior to the date scheduled for the next meeting. Under all the
circumstances the undersigned credits the testimony of the company representatives.
"Darden at first testified that when Mooney came to see him in his office , he advised
him that the Union was not "now in a position to post any securities in the bank at New
Albany." Darden later modified his testimony and stated that Mooney had advised him
the Union was not going to give any answer to the proposal. Since Dardes's testimony,
as modified , was not contradicted by any witness for the General Counsel and also appears
to comport with a letter ( hereinafter discussed ) which Wilson wrote to Mooney, the
undersigned credits Darden 's testimony.
1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD,
an offer to have the local union president serve as agent for suit, but that the
Company had made no real offer on the important issues of checkoff, union se-
curity, arbitration, and wages. The letter continues :
The position which you have apparently taken of refusing to enter into any
kind of agreement on the above three important issues until the Amalgamated
has posted a performance bond or made a deposit in New Albany by Govern-
ment Bonds in amount of $75,000 we feel does not constitute any form of
collective bargaining.
The letter concludes with the statement that the Union is ready for an immediate
meeting and would appreciate receiving proposals on the important issues pre-
viously mentioned. Wilson delayed in answering this letter because of the fact
that the conciliation service had apparently taken jurisdiction. However, on
October 25, 1948, he replied to Cooper's letter advising him that the Company
had not scheduled any further meetings because it had not received a reply
from Cooper or Mooney on the "proposition concerning guarantees" made by the
Company at the last meeting, on which they had agreed to give the Company an
answer before the next meeting. The letter denies that the Company had refused
to consider and discuss the matters set forth in Cooper's letter. It concludes
with the statement that the company representatives "stand ready to negotiate
with your Union but we do not feel that any meeting is necessary or justifiably
called for until you have carried out the promises made at the June 25
meeting. . . ."
(9) The meeting of July 29, 1949
Following the correspondence in September and October 1948, there was no
further communication between the parties until June 1949 when Dickason wrote
to Wilson requesting a further conference as soon as possible. Wilson wired
back arranging for a bargaining meeting on July 26, 1949. This was the seventh
and last conference between the parties . Wilson was again the chief negotiator
for the Company, while Cooper was the main spokesman for the Union.
At the outset of, the meeting Cooper asked whether the company representatives
had authority to enter into a collective bargaining contract covering such items
as union security, checkoff, wages, and arbitration . Wilson replied that the
representatives for the Company had full authority to enter into any agreement
upon which the parties could reach agreement. Cooper then asked whether the
Company's willingness to reach agreement on any item in the contract was con-
tingent upon the Union's posting of a performance bond or depositing securities
in lieu thereof. Wilson replied that it had been the original understanding of
the parties that there would be no binding agreement with respect to any partic-
ular clause until the parties had agreed to the entire contract. Cooper then
stated he would like a yes-or-no answer as to whether the Company was willing
to make any agreement that was not contingent on the posting of a performance
bond by the Union. Wilson replied that the Company was willing to bargain on
any item but did not think it was called upon to answer categorical questions
of that kind. He further stated that he thought it strange the Union should have
requested a meeting at that time after the long period that had elapsed since
the last meeting, and just when a representative of the Labor Board had been
in New Albany a° He asked Cooper whether the Union wanted to bargain or was
just there "to make a Labor Board case." Cooper replied that the union repre-
sentatives were there to arrive at a contract and that he hoped the company
s° In May 1949 the Union filed a charge against the Company claiming violations of
Section 8 (a) (1) and (3) of the Act. Apparently it was the investigation of this charge
by a Board field examiner which was responsible for the reference in Wilson 's remarks.
I. B. S. MANUFACTURING COMPANY 1297
representatives were there for the same purpose. He further stated that he did
not believe they were engaging in collective bargaining if the Company continued
to demand a performance bond from the Union. Wilson stated that the Com-
pany was ready to consider any proposal he cared to make.
Cooper then asked whether the Company would be willing to grant • the
Union some form of union security, with a checkoff provision and a union shop
after an election. Wilson replied that the Company had never had any pro-
posal in writing from the Union asking for union security. Cooper told him
that the Union had submitted such a proposal but that in any event he would
hand Wilson a proposal on this subject. One of the union representatives,
Milton Arens, who was assisting Cooper at the meeting, then handed Wilson
a proposed contract. This agreement was not offered in evidence by any of
the parties, but it apparently covered most of the items of collective bargain-
ing agreement and not merely the subject of union security. There was some
discussion as to whether the proposal which had been handed to Wilson by
Arons was an entirely new proposal or whether it substantially followed the
last proposals submitted to the Company by Mooney. Arons claimed that the
two proposals were alike except for one or two minor differences. Wilson asked
whether the latest union proposal contained a provision for the posting of a
bond by the Company, as did the Union's original proposal. He stated that
the first contract submitted by the Union did contain a provision for the Com-
pany's posting a bond and that was how the Company had gotten the idea
of asking the Union to post one. Cooper denied that the original proposal
contained any requirement for the posting of a performance bond by the Com-
pany and stated that in any event the Mooney proposal contained no such pro-
vision. He further assured Wilson that there was no such requirement in
the latest proposal just handed to the company representatives. Discussion
then continued on the subject of the legality of requesting the posting of a per-
formance bond. Cooper cited several Board decisions which he said were to
the effect that a bond was not a proper item for negotiation. He reminded
Wilson that when the latter was an attorney for the Board, he tried the Scripto
Pencil case 91 in which the Board held that the insistence on a performance
bond by an employer was a refusal to bargain. Wilson replied that: "This
was under the old law and not under the Taft-Hartley Act, and none of these
cases are cases where the union originally demanded a bond of the Company." sZ
Cooper advised Wilson that under no circumstances would the Union post a
bond or give security in lieu thereof.
There was some further discussion regarding the differences between the new
proposal submitted by Arons and the earlier Mooney proposal, and Wilson indi-
cated that the Company would want more time to study the new proposal and
possibly submit a counterproposal. Cooper finally offered to withdraw the lat-
est proposal and the discussion then returned to the proposals which had been
considered by the parties at the earlier meetings. Cooper asked Wilson whether
he would agree to a checkoff clause as provided in article XX of the Union's
original proposal, which provided for a deduction of union dues, initiation fees,
and assessments, and provided that such sums would be held by the employer
separate and apart from his general funds and should be deemed "trust funds."
Wilson replied that that article provided for a trust fund which, in effect, was
the same as a bond, and that the Company would not agree to it. Cooper then
asked whether Wilson would agree to a checkoff in the form provided in article
V of the Mooney proposal which provided merely for the deduction of union
a 36 NLRB 411.
22 The above quotation is from Wilson's own testimony.
1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clues and contained no provision for separate maintenance of these deductions-
as a trust fund. Wilson replied that they would not agree to a checkoff im
that language, although that did not mean they would not agree to a checkoff"
provision. He stated that they would be glad to discuss it "but we can't say
at this stage of the negotiations that we will accept that language." Cooper
asked Wilson if he meant to say that the Company had had this proposal for
2 years and still didn't know what its position was on a checkoff. Wilson
replied that the Company would not agree to that wording of the checkoff pro-
vision and offered to submit a counterproposal.
The discussion then shifted to the question of arbitration of grievances.
Cooper asked Wilson if he would agree to the grievance and arbitration pro-
cedure provided for in article XIV of the Mooney proposal. Wilson replied that
that article provided for compulsory arbitration of grievances and that the-
Company at that time was unwilling to agree to such a provision. He stated-
however, that if the parties could agree on everything else, the Company would
consider changing its position."
The subject of wages was next discussed, with Cooper stating that in the
past the Company had refused to discuss anything except the possibility of a
wage cut. He asked whether the parties could bargain on wages and whether
the Company was willing to give the Union a wage increase. Wilson spoke
at some length about the bad conditions in the shirt industry, making mention,
of several plants that had closed their doors because of the wage demands of
the CIO. Winkler stated that "there was a very small margin in the industry
and . . . that a very small change in the margin of profit would put the Com-
pany out of business, any company aut of business " Wilson advised the union
representatives that the Company could not grant an increase.34 Cooper then
asked Wilson, according to the latter's testimony, whether he would be willing
to make available to the Union the financial statements, payroll information,
and other data "that will bear out your statement that you cannot give a wage
increase?" When Wilson replied that they did not wish to bring in their books,
Cooper stated that the Union was not asking for the books but "a statement
from your books showing this information that will bear out your statement."
Wilson replied : "We do not think we are required to do that now, and we would
prefer not to do it at this time."
Cooper then stated that since the Company had no proposals to make on com-
pulsory arbitration, union security, checkoff, and wages, he himself "had noth-
ing further to initiate." After a brief period of silence, Darden, one of the
company negotiators, asked for clarification of the last paragraph of article
XIV of the Mooney proposal. Darden inquired whether the Union had agreed
to allow the third arbitrator to be chosen through the medium of the United
States District Judge for the Northern District of Mississippi. Cooper stated
that although he did not think the plan' was workable, the Union had agreed
to have the third arbitrator selected in this way as a concession to the Company.
Wilson then stated that he didn't understand Cooper's previous statement and
Cooper repeated that he had "nothing further to initiate at this time." Wilson,
replied that he was willing to bargain but that he didn't want to be asked any
33 The above finding is based on Wilson's testimony which is corroborated by Lavinia
George, one of the union negotiators.
34 There was some dispute in the testimony of the various witnesses as to whether Wilson
made specific reference to the financial condition of this Company as the reason for not
giving an increase , or merely spoke generally of bad conditions in the industry The
undersigned finds it unnecessary to resolve this conflict since in the general context in
which Wilson's reference to economic conditions was made, and from the discussions at
the earlier meetings, it seems evident that the Company's own financial ability to give an
increase was being called into question.
I. B. S. MANUFACTURING COMPANY 1299
categorical questions. Cooper then asked him whether he would bargain on
compulsory arbitration. Wilson replied that he would. Cooper then asked
him whether the Company would agree to compulsory arbitration. Wilson stated
that in his opinion, Cooper was not engaging in good faith bargaining and that
the asking of such categorical questions was "illegal, indecent and unethical."
Cooper asked Wilson if he meant that asking a question about compulsory
arbitration was unethical and Wilson replied that if he, Cooper, wanted "to
make something out of it, go ahead." Thereupon Cooper put his papers into his
briefcase and left the meeting room. Fred Smith, another of the company ne-
gotiators, turned to Arons and asked him whether he was willing to negotiate
with the Company. Arons stated that he would abide by the judgment of the
Union's attorney, and he too left the room. Smith asked if any of the other
union representatives wanted to bargain and they filed out of the room without
response . This was the last conference ever held by the parties. On August 5,
1949, the Union filed an amended charge with the Board claiming that the
Company had refused to bargain with it.
(10) Unilateral changes in wages and production quotas
In addition to evidence of the actual bargaining negotiations, the General
Counsel attempted to show a refusal to bargain through unilateral action taken
by the Respondents with respect to wages and conditions of employment. Prior
to the election in October 1946 most of the employees were paid on a piece-rate
basis with a minimum guarantee of 50 cents per hour. Beginning in December
1946 the Company changed its method of computing piece rates to a so-called
"minute system." Under this system an employee upon completing a given
number of garments was credited with a certain number of minutes of work
instead of a given number of dozens. At the end of the week she was paid
on the basis of the total number of production minutes credited to her, with
a minimum hourly guarantee in the event she did not complete her quotas in
the allotted time. Employees fulfilling their production quotas would average
70 cents per hour. According to Wilson the Company had been experimenting
with this minute system at its Pontotoc plant since October 1945. When it
became convinced of its feasibility it was introduced at the other plants begin-
ning in December 1946.
In January 1947 the Company increased the rates under the minute system
by 10 percent so that employees fulfilling their quotas would earn 77 cents
instead of 70 cents per hour. According to Wilson, this change was discussed
with the Union at the December 1946 conference and was put into effect after
the Union indicated they would not consider so small an increase . Although,
in the opinion of the undersigned, it is immaterial whether the Company did
or did not advise the Union of this proposed change at the December meeting,
it may be noted that there was no reference in Wilson's main testimony regard-
ing this meeting nor in that of any of the other witnesses, to an offer by the
Company to increase rates by 10 percent.
It does not appear that there were any othef changes in wage rates or pro-
duction quotas until January 194925 At that time the Company instituted a
policy of requiring employees to average 75 percent of their production quotas.
Employees failing to do so were discharged after receiving a prior warning.
At later dates, not appearing from the record, the standards were increased,
first to 80 percent and later to 85 percent of production. These changes were
undertaken without conferring with the Union.
85 Sue Herrin testified regarding a change in her production quotas in 1948 . However,
her testimony was so unclear that the undersigned can base no findings thereon.
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
c. Concluding findings
(1) The events prior to November 1948
As is evident from the above recital of facts a large part of the evidence
adduced at the hearing relates to events antedating by more than 6 months
the serving and filing of the charge herein. Under Section 10 (b) the Board is
prohibited from issuing a complaint based upon any unfair labor practice which
occurred more than 6 months prior to the filing and serving of the charge. This
section, in effect, establishes a 6-month statute of limitation 30 In this case the
original charge, which was filed May 12, 1949, alleged violations of Section 8
(a) (1) and (3) of the Act. Not until the filing of an amended charge on August
5, 1949, did the Union charge Respondents with a violation of Section 8 (a) (5)
of the Act.
The Respondents' position with respect to the application of Section 10 (b)
to this case is twofold: (1) That no finding of a refusal to bargain on its part
may be based on evidence more than 6 months prior to the date of the filing of
the amended charge on August 5, 1949; and (2) that no evidence of events
antedating the 6-month period of limitations should have been admitted by the
undersigned at the hearing herein and that such evidence cannot be considered
in determining whether the Respondents have violated the Act. The General
Counsel's position on these issues is: (1) That a finding of unfair labor practice
may be based on evidence of events occurring within 6 months of the filing of the
original charge, even though such charge did not allege any violation of Section
8 (a) (5) ; and (2) that, while no finding of unfair labor practice may be based
on events antedating by more than 6 months the serving and filing of the original
charge, evidence of such events is admissable as background evidence "to show
the posture of the case as it entered into the seventh conference on July 26, 1949."
With respect to the first contention, it is the established position of the Board
that the serving and filing of a valid charge asserting that the Act has been
violated, tolls the running of the statute of limitation and that a complaint may
thereafter issue alleging, as an unfair labor practice, any conduct by the re-
spondent which occurred within 6 months of the filing of such charge even though
such conduct was not specifically set forth in the charge ' In their brief, the
Respondents urge that this principle should not be applied where the violation
alleged in the complaint involves a section of the Act not claimed to have been
violated in the original charge. A reading of the cases establishing the principle
above referred to would indicate that the Board contemplated no such distinction
as that argued for by the Respondents 88 The Respondents further argue that
the principle established by the Board requires modification in the light of
pertinent decisions of the courts of appeals in Superior Engraving Company v.
N. L. R. B. 183 F. 2d 783 (C. A. 7) and Joanna Cotton Mills Company v. N. L. R. B.
176 F. 2d 749 (C. A. 4). Since the Board cases establishing the principle above
referred to were decided subsequent in point of time to one or both of the court
of appeals decisions cited by Respondent, the undersigned must assume that
31 See N. L. R. B. v. Itasca Cotton Manufacturing Company, 179 F. 2d 504, 506 (C. A.
5), holding that this section is a statute of limitations rather than a statute limiting the
jurisdiction of the Board.
37 Stokely Foods Incorporated, 91 NLIIB 1267 . Porto Rico Container Corporation, 89
NLRB 1570 ; G lobe Wireless, Ltd., 88 NLRB 1262; Tennessee Knitting Mills, Inc., 88
NLRB 1103; Catlaey Lumber Company, 86 NLRB 157, enforced 185 F. 2d 1021 (C. A. 5).
as In Tennessee Knitting Mills, Inc, supra , the original charge alleged a violation of
Section 8 ( a) (1) and (3) of the Act while an amended charge added an alleged violation
of 8 (a ) ( 2) of the Act. The Board held that a finding of unfair labor practices , includ-
ing a violation of Section 8 (a) (2), could be based on any conduct occurring within 6
months of the serving and filing of the original charge.
I. B. S. MANUFACTURING, COMPANY 1301
the Board took these decisions into account and determined that they did not
require any modification of its position. Accordingly, based upon the decisions
of the Board previously referred to, the undersigned holds that he may consider
as evidence of an unfair labor practice any events or conduct which occurred
within 6 months of the serving and filing of the original charge. Since this
charge was served and filed on May 12, 1949, a finding of unfair labor practice
may be based on any conduct occurring on and after November 12, 1948.
The second question raised by the Respondents is as to the admissibility in
evidence of the events and conduct antedating the period of limitations established
by Section 10 (b). Specifically, the question raised by Respondents is whether
the testimony of the first six bargaining conferences should have been received
in evidence and whether any weight can be given thereto." On this subject, the
Board has held that Section 10 (b) enacts "a statute of limitations, not'a rule
of evidence," and that while conduct outside the period of limitations may not
serve as the basis for the issuance of a complaint, it may be received as back-
ground evidence and considered to the extent that it "throws light and imparts
meaning to events" occurring within the critical period.40 The Board's holding
in this respect is bottomed on well-established legal principles. In F. T. C. v.
Cement Institute, 333 U. S. 683, 705, the Supreme Court recognized-
. . . the established judicial rule of evidence that testimony of prior or
subsequent transactions, which for some reason are barred from forming
the basis for a suit, may neverthless be introduced if it tends reasonably to
show the purpose and character of the particular transactions under
scrutiny.
This principle was applied by the court of appeals in Superior Engraving Company
v. N L. R. B., 183 F. 2d 783, 791, where the court held that although acts showing
that the employer dominated the formation of a union and contributed support
thereto more than 6 months before the filing of the charge may not be "the subject
of an jndependent unfair labor practice complaint," because barred by Section
10 (b), such acts may nevertheless be considered "as evidence of a violation" of
the employer's duty to bargain collectively within the 6-month period.
With these principles in mind the undersigned turns to a consideration of the
evidence of the first six bargaining conferences and other events prior to
November 1948 for the purpose of determining what light they shed on the
Respondents' state of mind as they entered the seventh conference and what
meaning they impart to the discussions which took place in that conference.
The evidence discloses that for a period of approximately a year and a half
the party met in bargaining negotiations at six different sets of conferences.
During the early stage of the conferences each of thlparties presented a proposed
contract which served as the basis for negotiations thereafter. The Company
advised the Union that its proposed contract contained provisions which would
not fit the local situation in New Albany. The Union advised the Company that
it was shocked by the type of contract submitted by the Company, particularly
the fact that a large portion of it was taken up with the requirement for furnish-
ing of performance bonds by the Union and because the Company reserved the
right to act unilaterally with respect to a number of the bargaining issues. Both
39 It may be noted that as far as these conferences are concerned it makes no practical
difference whether the statute of limitations is regarded as operating from the original
charge or the amended charge since on either basis all six conferences would be outside the
6-month period of limitation.
40 Sun Oil Company, 89 NLRB 833; Luzerne Hide and Tallow Company, 89 NLRB 989,
enforced 188 F. 2d 439 (C. A. 3), Florida Telephone Corporation, 88 NLRB 1429; and
Axelson Manufacturing Company, 88 NLRB 761.
974176-52-vol. 96-83
1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
parties expressed the hope that a basis for agreement could be found somewhere
between the demands in both proposals . The Union subsequently submitted
another proposed contract in which it watered down a number of its original
demands. The extent to which the parties were successful in achieving agree-
ment on the basis of finding a middle ground between both of their original
proposals may be, observed from a review of both the matters upon which agree-
ipent was reached and those matters upon which the parties failed to reach
agreement.
The issues upon which agreement was reached after a year and a half of
negotiating were as follows :
(1) A clause in which the Company recognized the Union as bargaining repre-
sentative for its employees in the appropriate unit This clause primarily gave
recognition to a fact which was already established as a result of the Union's
certification , as bargaining agent. It contained no provision for any form of
union security and was basically patterned after an equivalent clause in the
Company 's original proposal.
(2) A clause in which the Company agreed not to interfere with the rights
of the employees to become members of the Union and to engage in union activity,
and in which the Union undertook not to intimidate nonunion employees. The
clause also contained a restriction on the rights of union representatives to go on
the premises . This clause was substantially the same as an equivalent clause in
Respondents ' original proposal , except for a concession that union representatives
could visit the premises "at all reasonable hours" to see whether the agreement
was being complied with.
(3) A clause governing the layoff and reemployment of employees in which
recognition was given to seniority , when the ability of the employees was sub-
stantially equal, but in which the.`decision as to whether their ability was equal
would rest in the sole discretion ` of the Company. This was in substance the
proposal which the Company had made in its original contract.
(4) A clause providing for' overtime compensation after 40 hours a week and
providing for two rest periods of 10 minutes each. These were substantially the
Company's original proposals , the'Union having withdrawn its request for over-
time after 8 hours per day and having modified its request for 15-minute rest
periods.
. (5) A clause providing for vacation period of 1 week, with pay to the em-
ployees of 2 percent of their annual earnings . This was substantially the same
as the Company 's original proposal , except for the deletion of the provision giving
the Company the right to discontinue vacation benefits on 30 days' notice. It
represented a modification of; the original Union proposal for 2 weeks ' vacation
after 5 years and for vacatitpay to be based on units of 1 weeks' salary, as well
as a modification of the Uni'bii's second proposal which provided for 2 weeks'
vacation after'5 years of service.
(6) A clause providing for five unpaid holidays per year. This was sub-
stantially the provision of the Company 's original proposal . It represented a
modification of the Union's original proposal which provided that the holidays
be paid for and that employees working on those days receive time and one-half
compensation . It also represented a modification of the Union 's second proposal
which did not provide for the payment for the holidays except when worked, in
which event time and one-half compensation was to be paid.
(7) Possible agreement -upon a clause providing for 2 hours' compensation
for reporting time. This is substantially the proposal made in the Company's
original contract and represented a modification of the request made in the
Union's original contract for 4 hours' compensation for reporting time.
I. B. S. MANUFACTURING COMPANY 1303
(8) Possible agreement on a clause providing for compensation for machine
delay and transfer time. This was substantially the provision contained in
the Company's original proposal. No provision was made for waiting time not
due to machine delays, as provided for in the Union's original proposal.
As is apparent from the above enumeration the subjects on which agreement
was reached were, in the main, subjects on which the Union had made sub-
stantial concessions to the Respondents' point of view. It was not a matter
of finding a middle ground between the two agreements but of the Union's
agreeing substantially to the Company's demands. For the most part these
issues were of a nonsubstantial nature. On the more important issues the
record reveals the following situation after the first six conferences.
(1) On union security, the Union never appeared able to receive any definite
commitment from the Company. The Union's original request for a closed shop
was modified and it offered to accept a union shop or some lesser form of union
security. Although Wilson purportedly told Mooney in a conference in his office
during January 1948 that the had no objection to a union-security provision, he
never gave evidence of such sentiments at any of the regular negotiating
conferences.
(2) With respect to the matter of checkoff, the Union modified its original
request for a checkoff provision covering dues, initiation fees, and assessments
and was willing to accept one covering dues only. The record does not indicate
that the Respondents were ever willing to make any definite commitment on
this subject during the first six conferences. Here again, although Wilson claims
to have told Mooney in his office that he would not object to a checkoff provision,
his attitude at the bargaining conferences did not indicate any such willingness.
(3) On the question of wages, the Company in its original proposal was not
only unwilling to consider an increase but sought to reserve to itself the unilateral
right to lower the existing general wage scale and to set rates for new or changed
operations and individual piece rates. Although at the sixth conference the
Company appeared willing to accept the clause in the Mooney agreement which
provided that rates for new or changed operations and individual piece rates
would be determined by mutual agreement, it does not appear that it ever receded
from the provision in its own agreement giving it the unilateral right to lower
the general wage scale on 10 days' notice to the Union. The only increase granted
was one resulting from the Company's unilateral action.
(4) On the' subject of arbitration there were two main sources of disagree-
ment: (a) the clause making arbitration subject to mutual agreement, and (b)
the method of choosing the impartial arbitrator. On the second subject the
Union indicated its willingness to accept, in substance, the Company's proposal.
The latter was, however, at all times unwilling to accept the principle of com-
pulsory arbitration.
(5) On the subject of discharge of employees it does not appear that the
Company at any time receded from its original proposal that it have the un-
fettered right to make discharges for any cause it saw fit with no right on the
part of the Union to submit the matter to arbitration under the grievance
procedure.
(6) Throughout the negotiations the Company sought to have the Union post
some form of performance bond. Its reasons therefor were varied and shift-
ing. At first it gave as its reason the fact that the Union was requesting a
bond in its vacation clause. Although this clause was withdrawn at an early
stage of the negotiations, the Company indicated no willingness to make a parallel
concession. Another reason given was that as a result of the Union's alleged
coercion of nonunion employees, the Company anticipated violations of the
proposed clause forbidding such conduct. However, the testimony discloses
1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that such friction as did exist occurred around the time of the election and has
practically ceased at the time of the later conferences. The most important
reason given for requesting a bond was the desire that the Union be amenable
to suit in Mississippi. Although the Union indicated its willingness to make a
substantial concession by appointing the local president as agent for service of
process, the only concession the Company was willing to make was to change
the form of the security to be posted.
The duty to bargain under the Act involves more than a willingness to meet
and discuss proposals. Such "surface indicia of bargaining" 41 may merely be a
blind to hide a mind "hermetically sealed" against acceptance of the basic prin-
ciples of collective bargaining and a purpose to "engage in such Fabian tactics
as will render abortive the statutory rights of the employees." 42 Good faith
bargaining requires rather that the parties enter into the discussions:
... with an open and fair mind, in a sincere purpose to find a basis of
agreement touching wages and hours and conditions of labor's
While this "does not compel either party to agree to a proposal or require the
making of a concession," 94 a party's adamant insistence on his position and his
unwillingness to make more than minor concessions have been considered by the
Board and the courts as reflecting on whether he was in fact bargaining in good
faith with "an open and fair mind, [with] a sincere purpose" or whether he was
doing so with a mind "hermetically sealed" against reaching any agreement.96
Moreover, where a party's unwillingness to make concessions involves insistence
on his right to take unilateral action with respect to matters which are properly
the subjects for collective bargaining such insistence is per se bad faith bar-
gaining.46 By a parity of reasoning a party's unwillingness to reach an agree-
ment unless the other party undertakes to agree with respect to a matter not
properly a subject for collective bargaining is per se a refusal to bargain.47
Applying these principles to the first six negotiating conferences, the under-
signed finds :
(1) That while the Company was generally willing to meet and talk with the
Union'48 its attitude generally was one of unwillingness to make concessions
on any of the major issues and even on the minor issues its concessions were
41 Tower Hosiery Mills, Inc., 81 NLRB 658; enfd . 180 F . 2d 701 ( C. A 4) ; cert. denied
340 U. S. 81.
42 Great Northern Trucking Co. V. N. L. R. B., 127 F. 2d 180, 185 (C. A. 4).
41 Globe Cotton Mills v. N. L. R. B., 103 F. 2d 91, 94 (C. A. 5).
94 Section 8 (d) of the Act.
45 Tower Hosiery Mills, supra; N. L. R. B. v. Corsicana Cotton Mills Company, 173 F.
2d 347 (C. A. 5) ; Montgomery Ward and Company, Inc., 90 NLRB 1244. Cf. N. L. R. B.
v. Corsicana Cotton Mills, 179 F. 2d 234 (C. A. 5), where respondent 's concessions , includ-
ing its receding from insistence that the State district court judge designate the arbitrator,
was cited by the court among the reasons for its refusing to hold respondent in contempt.
96 As stated in Singer Manufacturing Company v. N. L. R. B., 119 F. 2d 131, 136 (C. A.
7), certiorari denied 313 U. S. 595.
An employer who insists upon reserving the right to act unilaterally and of its
own will alone upon matters involving legitimate collective bargaining and denies
the employees any contractual provision for opportunity to bargain collectively with
regard thereto thereby refuses to bargain collectively within the meaning of the Act.
See also Inland Steel Company, 77 NLRB 1, enforced 170 F. 2d 247 (C A. 7), certiorari
denied 236 U. S 960; J. H ,41lison Company, 70 NLRB 377, enforced 165 F. 2d 766 (C. A.
•'6), cert. denied 335 U. S 814, Franklin Hosiery Mills, Inc, 83 NLRB 276; Gay Paree
Undergarment Company, 91 NLRB 1267.
47 See N. L R B. v Dalton Telephone Company, 187 F. 2d 811 (C. A. 5), where an
iemployer was held to have refused to bargain by insisting that a union agree to register
under a State statute so as to make it amenable to suit.
48 The Company willingly met with the Union at all times up to June 1948. However,
for a period of several months thereafter it exhibited a reluctance to meet with the Union
until the latter had given it an answer on its proposal regarding the posting of securities.
I. B. S. MANUFACTURING COMPANY 1305
slight and were grudgingly granted. To the extent that agreement was reached
on any of the terms of the contract it was by virtue of concessions made by the
Union to Respondents' proposals. Although the Respondents refer to the state-
ment made by Mooney that the parties had reached substantial agreement except
on one or two minor matters, as supporting their position, the undersigned does
not regard this Pollyanna remark by Mooney as controlling in the face of the
overwhelming objective evidence to the contrary.
(2) That throughout these negotiations the Respondents insisted on the
right to take unilateral action with respect to: (a) Reducing wage rates; and
(b) the discharge of employees.49 These are both subjects upon which the
Union had a right to be consulted and to bargain on behalf of the employees.GO
(3) That the Respondents unilaterally changed their piece-rate system in a
number of its plants during December 1946 without attempting to reach agree-
ment with the Union on this subject . Such unilateral action with respect to
work standards constitutes a violation of the duty to bargain 61
The fact that the Respondents had been experimenting with a change of sys-
tem at one of its plants prior to the advent of the Union does not constitute a
mitigating factor since the decision to make the change in the other plants was
made after the Union's certification and it was entitled to he consulted regarding
the subject.
(4) That the Respondents unilaterally granted their employees an increase
in wages in January 1947. The fact that the Company may have granted the
increase after the Union had turned down a similar one during the negotiations
cannot condone its action since this occurred at an early stage of the negotiation,
before any impasse had been reached.'
(5) That throughout the negotiations the Respondents insisted that the Unions
post a performance bond or other form of security in order to insure performance-
of its obligations under the contract. The insistence on such a provision has
been held to constitute a refusal to bargain." Although the Respondents claim
that they never insisted on this provision as a condition precedent to entering
into a contract, the undersigned is convinced from the evidence that the fur-
nishing of such a bond was a condition precedent to the Respondents' willingness
to reach agreement on any of the basic provisions of a collective agreement. It
was never willing to make the Union a firm offer on any of the basic issues before
the Union would agree to furnish a bond.
It is true that in eagerness to reach an agreement, the Union was finally worn
down to the point where it was willing to give serious consideration to this
proposal. However, the Union made it clear in subsequent correspondence that
it would not agree to any such clause. The Respondents nevertheless were un-
41 It also insisted on the right to take unilateral action with respect to layoffs and
reemployment of employees . However, the Union finally accepted such a clause in its
eagerness to reach agreement with the Respondents.
15' Franklin Hosiery Mills, 83 NLRB 276; Hoosier Veneer Co, 21 NLRB 907, 934, enfd.
as mod 120 F . 2d 723 (C. A. 7).
61 Woodside Cotton Mills, 21 NLRB 42, 54
63 N. L R. B. v. Crompton Highland Mills, Inc., 337 U. S. 217; N. L. R. B v. The Andrew
Jergens Company, 175 F. 2d 130 (C. A. 9), cert. denied 338 U. S. 827 ; May Department
Stores v. N. L. R B., 326 U. S. 376.
63 Jasper Blackburn Product Corporation , 21 NLRB 1240, 1254; Scripto Manufacturing
Company, 36 NLRB 411, 427; Interstate Steamship Company, 36 NLRB 1307, 1319-20;
Benson Produce Company, 71 NLRB 888, 899; Cookeville Shirt Company , 79 NLRB 667,
689; Amory Garment Company , Inc., 80 NLRB 182, 194, 24 L. R. R. M. 2274, June 3, 1949;
Brown and Root, Inc., 86 NLRB 520, 521; Standard Generator Service Company of Mis-
souri, Inc., 90 NLRB 790; and International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen, and Helpers of America, Local 294, A. F. of L. (Conway's Express ), 87 NLRB
972.
1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
willing to meet with the Union for some time thereafter or to make any definite
proposal on the outstanding major issues unless the Union gave it some definite
answer or proposal on the furnishing of a bond. This the Union was not re-
quired to do.
In connection with their demand for a bond, Respondents cite as justification
the fact that the Union itself had requested some form of a bond in its original
proposal. However, although the Union withdrew this demand at an early stage
of the negotiations, the Respondents never indicated any willingness to recede
from their position. In fact, although in the early stages of the negotiations
the Respondents had assured the Union that the request for a bond was only in
their proposal for bargaining purposes,' as time wore on they became more and
more insistent on this provision. Even when the Union, in its desire to reach
agreement expressed its willingness to make itself amenable to suit in Mississippi,
a major concession which it was not required to make," the Respondents gave
no evidence of a willingness to recede from its illegal demand. It is true that
it was willing to have the Union substitute Government securities for a surety
company bond but this was merely a distinction without a difference. The in-
sistence that the Union furnish any form of security was illegal.
Based on the Respondents' total conduct, including their unwillingness to make
concessions or to recede substantially from the harsh provisions of their own
original proposal, their insistence on the right to take unilateral action with
respect to matters which were properly the subject for collective bargaining and
their actually taking such action, and their insistence on the Union furnishing a
performance bond or other form of security, it is the opinion of the undersigned
that had a charge been timely filed by the Union after the first six bargaining
conferences, a reasonable basis would exist for a finding of refusal to bargain
on the part of the Respondents. However, for some unexplained reason the
Union procrastinated in the enforcement of its rights and no such finding may
mow be made, on the basis of the events prior to November 1948. As previously
indicated, such facts may, nevertheless be considered as reflecting the posture of
:the negotiations as they entered the seventh conference, to which the undersigned
now turns.
(2) The conference of July 23, 1949
The seventh conference was the briefest of all the conferences in which the
parties participated. It lasted approximately 1 hour. The evidence regarding
this conference discloses that five subjects were discussed, the performance bond,
union security, checkoff, compulsory arbitration, and wages. With regard to the
bond, the Union asked whether the Respondents were insisting on it as a condi-
tion precedent to the making of any offer on the other subjects. The Respondents'
answer was somewhat evasive, referring to the original understanding that final
agreement with respect to any clause would be deferred until the entire contract
was agreed upon E0 The Union's request whether the Company was willing to
agree to union security, was met with the response that the Company had never
seen any proposal in writing on this subject. The original union proposal called
for a closed shop, and although the Union had made certain oral proposals on
union security, it had never submitted a written proposal on that subject. Con-
sidering the time that had elapsed since the previous negotiations, the under-
64 Wilson testified that when the Company presented its proposal at the second meeting
Dickason "didn't make too much objection to the bond" because he assured her the provi-
sion had been put in primarily for bargaining purposes.
66 See N. L. R. B. v. Dalton Telephone Company, supra.
° Although Cooper denied any such understanding, the evidence discloses that there was
such an understanding had with Dickason at an early stage of the negotiation.
I. B: S. MANUFACTURING COMPANY 1307
signed cannot consider the Respondents ' request as unreasonable . Although the
Union did submit a written proposal in the form of a new agreement , it later
withdrew it and the record does not disclose any subsequent discussion on that
issue. On the question of a checkoff , although the Respondents indicated their
unwillingness to accept the proposals in the Union 's earlier contracts , they indi-
cated the possibility of some agreement on that subject and offered to submit a
counterproposal . With respect to an arbitration clause which required com-
pulsory arbitration of grievances , the Respondents indicated their unwillingness
at that time to accept such a proposal . The Respondents also indicated an
unwillingness to grant a wage increase . The meeting finally broke up after
Wilson referred to certain of Cooper's questions as "illegal , indecent , and un-
ethical."
The General Counsel argues that the Respondents were not bargaining in
good faith because: ( 1) They were still insisting on a performance bond; (2)
they were still demanding unilateral control over wages; (3) they refused to
disclose financial and other information to support their claim that they could
not grant a wage increase ; ( 4) their "evasive tactics" were calculated to "stall
and prevent collective bargaining"; (5) their attitude was "belligerent, sus-
picious and antagonistic"; and (6 ) they insisted on maintaining sole control
over bargaining subjects.
(1) With respect to the matter of the bond, the undersigned is not convinced
that the record affirmatively establishes , by a preponderance of the evidence,
that the Respondents were still insisting on the bond as a condition precedent
to bargaining . It - is true that during the earlier conferences they indicated
such an attitude . However , 13 months had intervened since the last conference
and the discussion of the subject at this conference was rather brief and incon-
clusive. Although it may be suspected that if the seventh conference had
continued long enough , it would have again become apparent that the bond
was a vital element in the Respondents ' terms for reaching an agreement, the
undersigned does not believe that that stage had yet been reached when the
conference abruptly ended.
(2) The record likewise does not establish that the Respondents were still
insisting on unilateral action with respect to wages. They were opposed to
granting a wage increase but the credible testimony does not show that there
was any serious discussion of the Respondents ' right to reduce wages or that
they were still claiming this right.
(3) It is true that the Respondents indicated a lack of willingness to furnish
financial and other information to support their claim of inability to grant a
wage increase, but the matter of a wage increase and the Respondents ' ability
to grant one had not been brought sufficiently sharp into focus , that it can be
said the Respondents were refusing to furnish information necessary to carry
on collective bargaining."
(4) and ( 5) While the Respondents ' representatives might have been some-
what more direct in their answers and while Wilson 's remark to Cooper was
unfortunate , the evidence in the record is insufficient to establish that the Re-
spondents were deliberately evasive and attempting to sabotage the negotiations.
It must be borne in mind that the Union 's request to reopen negotiations came
after a lapse of a year and that the meeting took place within a short time after
the Union had filed a charge with the Board and after a Board field examiner
had investigated the case. It was perhaps natural therefore to expect that the
Respondents might react with some degree of hostility and suspicion concern-
67 Cf . Southern Saddlery Company , 90 NLRB 1205.
1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing the Union's motives in requesting a further meeting 68 It should also be
noted that the Union's eagerness to pin down the Respondents' position on the
various issues did not serve to assuage the Respondents' suspicions. While
the Union was no doubt eager to get a definite answer from the Respondents
on some of the issues after 21/2 years of negotiations, it should have realized
that in the context in which the seventh conference took place a more gradual
approach would have been the order of the day. There was something of a
"get it over with" attitude on the part of the Union's representatives as they
went down the list of issues on a seriatim basis, hardly pausing to explore the
possibilities for agreement on any issue. It is true that they had been dis-
cussing the issues for some 21/2 years but in view of the impasse which had
previously been reached and the lapse of time since the last conference, the
Union could hardly expect to return the negotiations at once to the posture
which existed in June of 1948.
(6) As evidence of the Respondents' insistence on maintaining sole control
over bargainable issues, the General Counsel cites certain provisions of the
Respondents' original contract giving it unilateral control over various matters
which are properly subjects of collective bargaining, such as wages, layoffs,
discharges, and hours of work. However, since there is no affirmative evidence
from which it can be inferred that the Respondents were still insisting, at the
seventh conference, on all of the provisions of their original proposal, no basis
for a finding of bad faith can be based thereon.
In conclusion, the undersigned finds that the General Counsel has failed to
sustain the burden of proof with regard to establishing the Respondents' refusal
to bargain in good faith. Although the evidence regarding the earlier conferences
is considerably stronger and probably would have been sufficient had a charge
been timely filed, it is improper to allow such evidence to resolve the doubts
which exist with regard to the seventh conference. While such evidence may
properly be received as background, the "recency" of such background events
is an important factor to-be considered in determining their bearing on the
events at issue.` Likewise, there must be substantial evidence within the period
of limitations, independent of such background evidence, to establish the mis-
conduct charged.0°
Although it may be suspected that had not the union representatives allowed
themselves to be dissuaded from their mission and had they continued the nego-
tiations, the status of the negotiations would again have been returned to a
complexion similar to that which existed following the June 1948 meeting, the
undersigned is unable to conclude that they had reached such a status on the
basis of one brief, inconclusive meeting held 13 months after the rupture in
negotiations. ,
(3) The unilateral change in production requirements in January 1949
As previously related, Respondents changed their production standards in
January 1949 so as to require that employees average 75 percent of their pro-
duction quotas or face dismissal. Although the Board has held that a change
in production standards is ordinarily a bargainable issue, in view of the impasse
which had been reached in negotiations, the length of time which had elapsed
since the last conference, the Union's willingness at that conference to give the
as Since the original charge covered only Section 8 (a) (1) and (3) violations, and any
claim of refusal to bargain based on the first six conferences was then outlawed by Section
10 (b), the Respondents might well have suspected the Union of requesting another confer-
ence to enable it to file an 8 (a) (5) charge.
59 Ao,elaon Manufacturing Company, 86 NLRB 157, enfd. 185 F. 2d 1021 (C. A. 5).
10 Tennessee Knitting Mills, 88 NLRB 1103; Sanson Hosiery Mills, 92 NLRB 1102.
UNITED SHOE MACHINERY CORPORATIONI, INC . 1309
Company control over the layoff and reemployment of employees, and the fact
that the record fails to disclose that the Union ever objected to the adoption of
the new policy in January 1949 the undersigned does not believe it would effec-
tuate the purposes of the Act to base a finding of refusal to bargain on this
action of the Company.
Conclusion
Upon a review of the entire record, the undersigned concludes and finds that
the General Counsel has not established by a fair preponderance of the credible
evidence that the Respondents have engaged in unfair labor practices within
the meaning of Section 8 (a) (1) and (5) of the Act. The undersigned will
therefore recommend that the complaint be dismissed in its entirety.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. The Respondents are engaged in commerce within the meaning of Section
2 (6) and (7) of the Act.
2. Amalgamated Clothing Workers of America, CIO, is a labor organization
within the meaning of Section 2 (5) of the Act.
3. The Respondents have not engaged in unfair labor practices within the
meaning of Section 8 (a) (1) and (5) of the Act.
Recommendations
On the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, the undersigned recommends that the complaint
herein be dismissed in its entirety.
UNITED SHOE MACHINERY CORPORATION , INC., G. R. BROWN, PRESIDENT,
UNITED SHOE MACHINERY CORPORATION , INC., QUARTER CENTURY
CLUB OF THE UNITED SHOE MACHINERY CORPORATION , AND W. W.
CROSS & COMPANY , INC. and LOCAL 3605 , UNITED STEEL WORKERS OF
AMERICA, CIO . Case No. 1-CA-814. November 2, 1951
Decision and Order
On June 22, 1951, Trial Examiner David London issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto.' Thereafter, the Respond-
ents filed exceptions to the Intermediate Report and a supporting
brief.
1 In accordance with a stipulation of the parties, filed on July 16, 1951, the Intermediate
Report is hereby corrected to reflect the facts agreed to in the stipulation. These correct
tions, however, do not affect our ultimate 'disposition of this case.
96 NLRB No. 197.