Langston Cos.

National Labor Relations Board - Board Decisions

Sep 23, 1991

304 N.L.R.B. 1022 (N.L.R.B. 1991)

1022
304 NLRB No. 130
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel has excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administrative law
judge’s credibility resolutions unless the clear preponderance of all the relevant
evidence convinces us that they are incorrect. Standard Dry Wall Products,
91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing the findings.
There are no exceptions to the judge’s findings that the Respondent commit-
ted numerous violations of Sec. 8(a)(5), (3), and (1).
2 We affirm the judge’s conclusion that the Respondent did not violate Sec.
8(a)(3) by transferring the half-bag manufacturing operation from its Arlington
plant to its Memphis plant. In light of the limited nature of the General Coun-
sel’s exceptions, we also agree with the judge that the Respondent did not vio-
late Sec. 8(a)(5) by failing to bargain about the half-bag transfer decision and
by refusing to provide the Union with requested information about that deci-
sion. In exceptions, the General Counsel relies exclusively on the theory that
the Respondent had an obligation to bargain because it relocated the half-bag
work for the unlawful discriminatory purpose of undermining the Union. See
Strawsine Mfg. Co., 280 NLRB 553 (1986). The General Counsel does not
contend in exceptions that, assuming the Respondent transferred work for valid
economic reasons, it had an obligation to bargain under Otis Elevator Co., 269
NLRB 891 (1984), and related precedent. We therefore find it unnecessary to
rely on the judge’s discussion of whether the Respondent had an obligation
to bargain under Otis and related precedent. In Dubuque Packing Co., 303
NLRB 403 (1991), the Board overruled Otis and articulated a new test for de-
termining whether bargaining is required over an employer’s relocation deci-
sion. We therefore do not rely on the judge’s discussion of whether the Re-
spondent had an obligation to bargain under Otis and related precedent. In
light of the narrow basis for the General Counsel’s exceptions, we find no
need to apply the Dubuque test.
3 In accord with the General Counsel’s exceptions, we shall order the Re-
spondent to make the employees whole, with interest as prescribed in New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987), for any losses they may have
suffered by reason of the Respondent’s unilateral implementation of changes
in their insurance plan.
4 In view of the absence of a prima facie case, it is unnecessary to assess
the plausibility of the reasons given by Respondent for its failure to offer the
work to Teamer and Nabors after the other employees declined it.
1 I agree with my colleagues’ disposition of all other issues in this case.
Langston Companies, Inc. and Furniture Workers
Division I.U.E., Local 282 AFL–CIO. Cases 26–
CA–12392, 26–CA–12809, 26–CA–12926, 26–
CA–12980, 26–CA–13035, 26–CA–13115, and
26–CA–13394
September 23, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On May 14, 1990, Administrative Law Judge Robert
W. Leiner issued the attached decision. The General
Counsel filed exceptions and a supporting brief. The
Respondent filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order as
modified.3
For the reasons set forth fully in the judge’s deci-
sion, we agree that the General Counsel had failed to
prove that the Respondent violated Section 8(a)(3) of
the Act by refusing to offer half-bag department em-
ployees Shirley Teamer and Rosie Nabors the oppor-
tunity to work overtime on October 10, 1987. The
General Counsel’s theory of violation is that the Re-
spondent singled out these two employees because of
their leadership role in the Union’s organizing cam-
paign. The Respondent rebutted a key element of the
General Counsel’s prima facie case by proving that, at
the time of its overtime assignment, it did not know
that Teamer and Nabors were more active in the cam-
paign than the other half-bag employees, all of whom
openly displayed union insignia at work. Moreover,
after the Respondent did become aware of the union
leadership roles of Nabors and Teamer, it promoted the
former in September 1988 and excepted the latter from
a 1-day layoff in February 1989.
Our dissenting colleague would reverse the judge
based on precedent holding that the failure of an em-
ployer to include all known union supporters in an ad-
verse action does not preclude finding unlawful moti-
vation behind such action. Under that precedent, the
fact that an employer takes action against only some
of the union adherents does not necessarily show that
the employer’s action was lawful. However, in such
cases, as in any 8(a)(3) case, the General Counsel must
establish that the action was for an unlawful reason. In
the instant case, the General Counsel sought to show
that the Respondent’s motive was to punish Teamer
and Nabors because they were more active than their
coemployees in supporting the Union. The General
Counsel’s case foundered because there was no com-
pany knowledge of the greater union activity of
Teamer and Nabors. Thus, a critical element of the
General Counsel’s prima facie case—knowledge—was
missing.4
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
Langston Companies, Inc., Arlington, Tennessee, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Insert the following as paragraph 2(d) and reletter
the subsequent paragraphs.
‘‘(d) Make whole its employees for any losses they
may have suffered by reason of the Respondent’s uni-
lateral implementation of changes in its insurance
plan.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
MEMBER DEVANEY, concurring in part and dissenting
in part.
Contrary to my colleagues, I would reverse the
judge and find that the Respondent violated Section
8(a)(3) and (1) by denying ovetime work to employees
Teamer and Nabors on October 10, 1987.1 Teamer and
1023LANGSTON COS.
2 Nor do I agree with my colleagues that the Respondent’s knowledge of
Teamer’s and Nabors’ leadership role in the organizing campaign was an es-
sential element of the violation. The complaint alleged that the Respondent
violated Sec. 8(a)(1) and (3) by refusing to permit Teamer and Nabors to work
overtime ‘‘because they joined, supported or assisted the Union . . . .’’ Al-
though the General Counsel established all the standard elements necessary to
prove this violation, my colleagues find this insufficient. Rather, they find that
the General Counsel saddled himself with an additional element of proof,
which in their view he failed to show, merely by his statement in his brief
to the judge that Teamer and Nabors were denied overtime because of their
leadership in the campaign.
Contrary to my colleagues, I would find the alleged violation, which is
clearly established here, even assuming that the General Counsel failed to
prove the Respondent’s knowledge of Teamer’s and Nabors’ leadership role
in the campaign (see fn. 3, below). The violation made out in the record does
not differ from that alleged in the complaint, nor does it differ significantly
from that which the General Counsel contended to the judge. My colleagues
have seized on an inconsequential discrepancy between the General Counsel’s
argument and his proof in order to dismiss this complaint allegation.
Moreover, to show the Respondent’s lack of hostile motive against Teamer
and Nabors, my colleagues cite the Respondent’s promotion of Teamer in Sep-
tember 1988 and its excepting Nabors from 1-day layoff in February 1989.
The former occurred almost a year after the organizing capaign and the denial
of overtime at issue here, while the latter occurred even longer after these
events. The Respondent’s apparent lack of hostility toward Teamer and Nabors
at that time shows little, if anything, about the motive for the Respondent’s
denial of overtime to Teamer and Nabors in October 1987.
3 The less than compelling explanation for singling out the two leading
union proponents as the only employees not to be offered overtime tends to
support the General Counsel’s contention that, contrary to the judge, the Re-
spondent had knowledge that Teamer and Nabors were the instigators of the
organizing activity. It is not necessary to pass on this issue, however, in order
to find the denial of overtime to them violated the Act.
4 The Respondent’s argument that its witnesses were not asked to explain
the Respondent’s failure to offer the overtime to Teamer and Nabors after oth-
ers had declined the work is unavailing. The burden is on the Respondent to
prove that it had a legitimate business reason for its actions. Wright Line, 251
NLRB 1083, 1088 fn. 11 (1980), and accompanying text.
Nabors initiated the organizing effort at the Respond-
ent’s Arlington, Tennessee plant in September 1987.
They asked employees if they wanted a union, con-
tacted a union representative, and distributed and col-
lected authorization cards. They also distributed union
literature in the plant breakroom and outside the plant.
The judge found that the Respondent ‘‘undoubtedly
had knowledge of these early, overt union activities.’’
Teamer and Nabors, as well as six other employees in
the ‘‘half-bag’’ department, openly wore union insignia
prior to October 10.
On October 7–9, the Respondent offered Saturday
overtime work for October 10 to all 60 production em-
ployees except Teamer and Nabors. I agree with the
judge that, based on Teamer’s and Nabors’ open union
activity and statements by the Respondent’s president
showing substantial antiunion animus, the General
Counsel established a prima facie case that the Re-
spondent’s failure to offer the ovetime work to Teamer
and Nabors violated Section 8(a)(3) and (1).
I disagree, however, with the judge’s conclusion,
which my colleagues adopt, that the General Counsel’s
prima facie case was rebutted by his failure to show
that the Respondent knew that Teamer and Nabors
were not just open union proponents but the instigators
of the organizing effort. The judge reasoned that, be-
cause other known union adherents were offered the
overtime work, the Respondent’s failure to offer it to
Teamer and Nabors was not shown to have an
antiunion motive. This conclusion is contrary to the es-
tablished principle that an employer’s failure to take
action detrimental to all known union adherents does
not show that its action against some was not for
antiunion reasons. See, e.g., Alliance Rubber Co., 286
NLRB 645, 647 (1987); Master Security Services, 270
NLRB 543, 552 (1984).2
Moreover, neither the judge nor my colleagues ad-
dress the Respondent’s failure to offer the overtime
work to Teamer and Nabors after other employees de-
clined the overtime work. The Respondent explained
that it did not offer the work to Teamer and Nabors
because their work stations were not located as con-
veniently as others to the location where the work was
to be performed.3 This explanation, however, does not
justify the Respondent’s failure to offer the work to
Teamer and Nabors after others had declined the
work.4 Indeed, the judge found that Teamer and
Nabors were capable of performing the work. Thus,
given the Respondent’ knowledge of Teamer’s and
Nabors’ active union support, the Respondent’s dem-
onstrated antiunion animus, the timing of the denial of
overtime shortly after Teamer’s and Nabors’ initiation
of the union campaign, and the absence of any prof-
fered reason for not offering the overtime work to
Teamer and Nabors after it was declined by others, I
would find that the Respondent’ failure to offer to
Teamer and Nabors the overtime work that the rest of
the 60-employee complement had been invited to per-
form clearly violated Section 8(a)(3) and (1) of the
Act.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT unilaterally implement any substance
abuse plan, wage rate, insurance plan or any other term
or condition of employment which is a mandatory sub-
ject of bargaining without having first reached a lawful
impasse with Furniture Workers Division, I.U.E., Local
282, AFL–CIO, with respect to bargaining in the unit
below described; nor refuse to meet with the Union at
reasonable times for the purpose of collective bargain-
ing; nor withdraw or repudiate our agreement on holi-
days reached in collective bargaining with the Union,
or on any other mandatory term or condition of em-
ployment; nor insist on the unilateral right, with regard
1024 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The relevant docket entries concerning the pleadings are as follows:
The charge in Case 26–CA–12392 was filed and served on November 10,
1987; the amended charge therein, filed and served December 11, 1987.
A settlement agreement executed by the parties on March 9, 1988, resolving
this charge was set aside by the Regional Director, Region 26, on October 28,
1988 (see G.C. Exh. 1(j)). The Charge in Case 26–CA–12809, was filed Au-
gust 31, 1988, served on September 1, 1988, with an amended charge therein,
filed on October 27, 1988, and served on October 28, 1988. On October 28,
1988, the Regional Director issued and caused to be served an order consoli-
dating cases, consolidated complaint, and notice of hearing in Cases 26–CA–
12392 and 26–CA–12809. On Novemer 14, 1988, Respondent filed its timely
answer to the above consolidated complaint.
On November 25, 1988, the charge in Case 26–CA–12926 was filed and
served; with a first amended charge filed January 3, 1988, and served on Janu-
ary 6, 1988. On January 6, 1989, the Regional Director issued and served a
second order consolidating cases, second consolidated complaint and notice of
hearing in Cases 26–CA–12392, 26–CA–12809, and 26–CA–12926. Respond-
ent’s timely answer to the second consolidated complaint was filed on January
20, 1989.
The charge in Case 6–CA–12980 was filed on January 5, 1989, and served
on January 6, 1989. The first amended charge therein was filed and served
on February 14, 1989. On February 22, 1989, the Regional Director issued a
third order consolidating cases, third consolidated complaint and notice of
hearing in Cases 6–CA–12392, 6–CA–12809, 6–CA–12926, and 6–CA–12980,
which consolidated complaint was served on February 2, 1989. The charge in
Case 26–CA–13035, filed February 15, 1989, was served on February 16,
1989, with a first amended charge therein filed and served on March 17, 1989.
On March 17, 1989, the Regional Director issued and served a complaint in
Case 26–CA–13035. On March 17, 1989, the Regional Director issued and
served an order consolidating all the above cases. On March 27, 1989, Re-
spondent filed its answer to the complaint in Case 26–CA–13035.
On April 7, 1989, the charge was filed in Case 26–CA-13115 and served
on April 10, 1989. On April 27, 1989, the Regional Director issued complaint
in Case 26–CA–13115; and on May 11, 1989, the General Counsel filed a mo-
tion to consolidate Case 26–CA–13115 with all the prior cases which motion
I granted after opening of the hearing on May 16, 1989. On May 8, 1989,
in the meantime, Respondent filed its answer to the complaint in Case 26–
CA–13115 and did not oppose the consolidation of all the above cases. The
hearing, April 24–May 25, 1989, involved the above consolidated cases.
On October 12, 1989, General Counsel issued a further complaint in Case
26–CA–13394, upon a charge filed on August 29, 1989 (served August 30,
1989), and an amended charge, filed September 15, 1989 (served September
18, 1989). Respondent filed a timely answer. The reopened hearing of Novem-
ber 27–28, 1989, related to the complaint in Case 26–CA–13394.
to any employee insurance plan, to change the carrier,
claims procedures or policy coverage; nor refuse to
bargain on the Union’s offer of dues-checkoff provi-
sion on any irrelevant ground; nor engage in bad-faith
and surface bargaining, rather than making a sincere
effort to reach an agreement with the Union.
The unit for collective bargaining is:
All production and maintenance employees em-
ployed at Langston Companies, Inc., Arlington,
Tennessee facility but excluding all truckdrivers,
office and plant clerical employees, watchmen,
guards and supervisors as defined in the Act.
WE WILL NOT issue reprimands to, suspend, or oth-
erwise discriminate or retaliate against Josephine Ben-
son, or any other employee, because she or they en-
gage in activities on behalf of the Union, or any other
labor organization, or engage in concerted activities
protected by Section 7 of the Act.
WE WILL NOT fail or refuse to provide the Union,
in writing, with requested information regarding (a) the
identities of employees and rates of pay of newly hired
employees paid higher pay rates under our interim pay
plan implemented in June 1989; and (b) whether we
have implemented and enforced the substance abuse
plan in any of our nonunion plants; and if not, why we
are proposing such plan at the Arlington, Tennessee
plant.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL make whole Josephine Benson for any loss
of earnings that she may have suffered as a result of
our unlawful discrimination against her in the suspen-
sion of November 22, 1988.
WE WILL rescind our written warning of November
15, 1988, and expunge from our records all memo-
randa of, or reference thereto, as well as our unlawful
suspension of Josephine Benson on November 22,
1988, and notify Josephine Benson, in writing, that
these actions have been done and that evidence of
these unlawful actions will not be used as a basis for
future personnel actions against her.
WE WILL, at the request of the Union, rescind (1)
the employee insurance plan implemented in January
1989, and any additions or modifications thereto; (2)
the interim pay plan implemented in June 1989; and
(3) the substance abuse plan.
WE WILL make whole our employees for any losses
which they may have suffered by reason of our unilat-
eral implementation of changes in our insurance plan.
WE WILL, on request, bargain collectively and in
good faith concerning rates of pay, hours of employ-
ment, and other terms and conditions of employment
with the above named Union, as the exclusive rep-
resentative of our employees in the above-appropriate
unit and, if agreement is reached, embody same in a
signed agreement.
LANGSTON COMPANIES, INC.
William D. Levy, Esq., for the General Counsel.
John P. Scruggs, Esq., and Richard H. Allen Jr., Esq. (Allen,
Scruggs, Sossaman & Thompson, P.C.), of Memphis, Ten-
nessee, for the Respondent.
Willie Rudd, President, and Ida Leachman, Vice President,
Local 282, Furniture Workers Division, for the Union.
DECISION
STATEMENT OF THE CASE
ROBERT W. LEINER, Administrative Law Judge. This con-
solidated matter was heard on nine occasions on and between
April 24 and May 25, and thereafter on November 27 and
28, 1989, in Memphis, Tennessee upon General Counsel’s
several complaints alleging in substance, that Respondent,
Langston Companies, Inc., in its dealings with the above-
captioned Local 282 (the Union), and with its employees,
violated Section 8(a)(1), (3), and (5) of the Act in the period
1988 through 1989.1
At the hearings, all parties were represented by counsel,
given full opportunity to call and examine witnesses, submit
1025LANGSTON COS.
2 General Counsel’s August 4, 1989 motion to correct the official transcript,
not opposed by Respondent, is granted.
3 Respondent, in its answers and at the hearing, also conceded that Robert
E. Langston, president; George Smith, general manager, Textile Division; Carl
Hussey, plant manager (until on or about November 18, 1988); Bill White,
production supervisor; Tony Little, supervisor; Terry Hall, supervisor trainee;
Norman Neville, plant manager; and Ron Wargo, personnel manager, are all
its supervisors and agents, respectively, within the meaning of Sec. 2(11) and
(13) of the Act.
oral and written evidence, and to argue on the record. At the
close of the hearings, counsel for the parties waived final ar-
gument and reserved the right to submit posthearing briefs.
Counsel for the General Counsel2 and for Respondent twice
submitted timely posthearing briefs which were carefully
considered.
On the entire record, including the briefs, and from my
particular observation of the demeanor of the witnesses as
they testified, I make the following
FINDINGS OF FACT
I. RESPONDENT AS STATUTORY EMPLOYER
Respondent admits and I find that it is a corporation with
offices and places of business in Arlington and Memphis,
Tennessee, and other places of business in the States of Lou-
isiana and Arkansas, where it is engaged, inter alia, in the
manufacture of bags and bagging materials. During the 12-
month period ending September 30, 1988, in the course and
conduct of its business operations, Respondent sold and
shipped from its facilities, as above described, products,
goods, and materials valued in excess of $50,000 directly
from points outside the State of Tennessee; and in the same
period, purchased and received at its facilities in Tennessee
products, goods and materials valued in excess of $50,000
directly from points outside the state of Tennessee. Respond-
ent concedes, and I find, that at all material times, it has
been and is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE UNION AS STATUTORY LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find that
at all material times, Furniture Workers Division, I.U.E.,
Local 282, AFL–CIO (the Union), has been and is a labor
organization within the meaning of Section 2(5) of the Act.3
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent manufactures packaging materials in five
plants. In West Memphis, Arkansas, it manufactures
multiwall paper bags. It manufactures ‘‘textile bags’’ at its
Crowley, Louisiana plant, and at its Memphis, Tennessee
plant (Texas Street plant). ‘‘Bulk bags’’ (1-ton capacity bags
for free-flowing food stuffs such as rice and various chemi-
cals) are produced at the Arlington, Tennessee plant and at
the Crowley, Louisiana plant. Cotton bale packaging mate-
rials are currently produced at its Memphis, Tennessee
(Texas Street) plant, although, at material times, certain types
of cotton bale packaging materials—‘‘half-bags’’—were pro-
duced and assembled at the Arlington, Tennessee plant
(opened in 1985) in conjunction with cutting and
warehousing at the Texas Street plant. Thus, at material
times, part of the fabrication process for (cotton baling)
‘‘half-bags’’ was done at Arlington while other parts of the
process, in 1986 and 1987, were performed at the Texas
Street plant. There is no dispute that half-bag production
ceased at the Arlington, Tennessee plant on or before Janu-
ary 15, 1988, although there was a temporary resumption of
half-bag production at Arlington in September-November
1988. The Company’s fifth manufacturing plant in Jackson,
Mississippi producees items such as tarpaulins and wagon
covers.
In September 1987, Respondent employed approximately
61 employees in production and maintenance classifications
in its Arlington, Tennessee facility, engaged principally in
the production, as above noted, of ‘‘bulk bags.’’ Bulk bags
are not used to package cotton, rather, as above noted, they
are used for free-flowing chemicals and foodstuffs. There
were, however, eight employees in the Arlington facility em-
ployed in the manuacture of half bags to package cotton
bales. A half bag consists of two pieces: the ‘‘bottom’’ and
the ‘‘barrel,’’ both of which are made of and cut from rolls
of woven 35 polypropylene. Prior to January 15, 1988, the
polypropylene bottoms and barrels, cut at Texas Street, were
shipped 40 miles to Arlington for sewing and assembly by
the eight employees in the half-bag department in Arlington.
The finished half bags were then baled in Arlington and
shipped back to the Texas Street plant for warehousing and
distribution. There was no substantial warehousing facility at
the Arlington plant whether for half bags or bulk bags.
The eight Arlington employees engaged in half-bag hem-
ming, sewing, assembly, and baling were Shirley Teamer,
Dorothy Stewart, Josephine Benson, Justine Harwell, Rosie
Nabors, Helen McBride, Cynthia Tapplin, and Cyrus Payne
(the baler).
In 1986, half-bag production, performed at the Crowley,
Louisiana plant, was transferred to Memphis and the newly
opened Arlington plant as a ‘‘split’’ production scheme. In
1986 and through January 15, 1988, the ‘‘bottom sheets’’ of
half bags were cut and printed at the Texas Street plant.
There was no sewing operation on half bags at Memphis
Street; sewing was done at Arlington where the bags, using
bottom sheets shipped from Memphis, were cut, hemmed,
sewed, inspected, baled, and then loaded for reshipment to
Memphis for distribution or warehousing. At the Texas Street
plant in Memphis, the half-bag operations consisted of (1) re-
ceipt of the rolls of polypropylene and other raw materials
used in half-bag production; (2) cutting operations on the
bottom sheets and barrel; (3) printing of the name of the ma-
terial supplier on the bag; (4) warehousing; and (5) consoli-
dation and shipping to customers. Printing equipment at the
Arlington plant was inadequate and unsatisfactory compared
to the printing equipment at Memphis Street, the sole source
of printing.
A heat cutting machine at Arlington (the ‘‘Weist’’ ma-
chine) cut polypropylene bags, whether half bags or bulk
bags. The cutting of bottoms at the Memphis plant was also
on a Weist machine.
Raw materials, principally woven polypropylene, for pro-
duction of half bags at Arlington, were not shipped directly
to Arlington; rather, all raw materials for such production
was shipped to the Memphis plant and transhipped to Arling-
ton. When there was such shipment, ordinarily there was no
drop shipment of materials at Arlington because the half-bag
1026 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
bottoms, in any case, were cut and printed at Memphis. This
split production was unlike the prior production in the Crow-
ley, Louisiana plant prior to 1986 when the entire half-bag
production process was in one plant. Although Respondent
considered single plant production of half bags at Arlington
prior to the 1986 switch from Crowley, Respondent decided
to have split production because Arlington, newly opened
and having open production time, could not properly print
the bags on existing Arlington equipment. It was decided that
some cutting and the printing operation woould be performed
in Memphis in 1986
In or about March 1983, Respondent decided to, and did,
transfer the Arlington half-bag operation to the Memphis
plant. The decision to transfer, in early March, 1988, was al-
legedly based on internal company memoranda following a
Cotton Bale Packaging Convention in Memphis in early
March. According to Respondent, this decision to transfer
was based on a prediction that the cotton industry’s need for
half-bag production would be substantially diminished from
the previous year and that Respondent could save transpor-
tation and other logistical costs in amalgamating the produc-
tion operation at Texas Street. Six months later, in Septem-
ber 1988, however, there was an unexpected increase in de-
mand for half-bags because of a larger than expected cotton
crop. This demand for half bags could not be met from
Memphis plant production and Respondent resumed produc-
tion of half bags at Arlington which lasted about 6 weeks
until November 1988, the end of the cotton packaging sea-
son. At this point, half-bag production was again discontiued
at Arlington and continued only at the Memphis plant.
This interplant movement of half-bag production was not
unique. Half-bag production from woven polypropylene oc-
curred first in 1981 at the Texas Street plant in Memphis.
In 1982, production was transferred from the Memphis plant
to Respondent’s plant in Jackson, Mississippi (open since
1963). In 1983, half bags were produced both at Crowley,
Louisiana, and the Memphis plant. In 1984, half-bag produc-
tion occurred only at the Crowley plant (open 1965) follow-
ing a layoff of employees in half-bag production in Jackson,
Mississippi. Half-bag production continued in Crowley, Lou-
isiana from 1984 through 1986 when, in June 1986, it was
transfered to the Memphis and Arlington plants.
Robert Langston, Respondent’s president, credibly testified
that, the consolidation of half-bag production in Memphis
Street had been on his mind since 1986 when production was
switched from Crowley, Louisiana to the split-site of
Memphis/Arlington. He testified, however, that the actual de-
cision to reconsolidate half-bag production only at the Mem-
phis plant in Texas Street occurred in March 1988. There is
no dispute that Arlington’s sewing, assembly, baling, and
cutting operations were transferred to Memphis pursuant to
this March 1988 decision. However, Arlington’s cutting ma-
chine remained in Arlington to cut its principal product, bulk
bags. There was no move of major equipment following the
consolidation of half-bag production in Memphis. While a
few tables and minor items followed the consolidation, there
was no new equipment purchased, no renovation of plant,
and no capital outlay. Langston conceded that there was nver
any written cost comparison of half-bag production between
Arlington and Memphis. Apparently consistent with this fail-
ure to have any substantial cost comparison, Langston testi-
fied that he considered the move a matter of urgency and
that time was of the essence. Langston admitted that he
never saw the underlying figures of his supervisors who rec-
ommended the consolidation and depended only on their
conclusions and recommendations based on transportation
and other logistic considerations in making the transfer. The
actual consolidation occurred in the first week of April 1988.
In particular, Langston testified that in the 1986 transfer
of half-bag production from Louisiana to Memphis, all pro-
duction functions were not placed in the Memphis plant be-
cause the Memphis plant did not have open sewing capacity
at that time. That was the reason for the creation of a split
operation: Memphis/Arlington.
He testified that there had been a consistent reduction in
the demand for half bags as the packaging material for cot-
ton: 57 percent of the cotton crop was wrapped in half bags
in the early 1980s; but by 1988, it was projected down to
about 15 percent. He noted that only four Memphis employ-
ees were producing half bags after consolidation at Texas
Street in March-April 1988 whereas seven or eight employ-
ees had been making half bags at the Arlington Street loca-
tion at the end of 1987. He admitted, however, that the hour-
ly wage rate at Texas Sreet was higher but asserted that the
overall efficiency of the operation at Memphis compensated
for the higher wage rates paid the four employees. He par-
ticularly noted that there was no unnecessary handling, pack-
ing and unpacking and resulting damage to the product,
stemming from transfer of goods between Arlington and
Memphis. Additional savings resulted from the elimination of
drop charges and trucking costs between Arlington and
Memphis, a distance of miles.
Donald E. Wiseman, Respondent’s operations manager
covering all production plans, testified that the 1986 transfer
of half-bag production to the split site did not mandate mov-
ing all half-bag production to Memphis because, inter alia,
the new Arlington, Tennessee plant had no full book of pro-
duction orders for bulk bags, its primary production function.
In order to cover the overhead of open production capacity
at Arlington, and since Texas Street did not have available
sewing capacity, it was decided to put a portion of half-bag
production operations at Arlington. Wiseman corroborated,
however, that split-site production was unsatisfactory due to
the excess handling and damage to the bale bags.
He testified that he was part of the 1988 decision to con-
solidate production. What actually precipitated consolidation,
however, was that Texas Street now had open capacity due
to the decrease in both its manufacture of ‘‘textile bags’’ and
a further decrease in the anticipated demand for half bags.
While trucking and handling were the major factors in addi-
tion to the open capacity at Texas Street, he denied that
unionization of the plant at Arlington was discussed. A sum-
mary of company records comparing the trucking costs of
goods in the years 1987 and 1988 (prior to and subsequent
to consolidation at Texas Street) show that there were fewer
trucking operations in 1988 after consolidation than in 1987
prior to the consolidation (R. Exh. 18).
B. The Union’s Organizational Drive at the
Arlington Plant
Shirley Teamer, first employed at the Arlington plant in
August 1985, a few months after its opening, testified that
when she began work at Arlington, Respondent already was
making half bags and that in May 1986, she was transferred
1027LANGSTON COS.
into the half-bag department (following initial employment as
an inspector) as a sewing helper. She remained a helper for
about 6 months and then became a sewer of half-bag pieces
(Tr. 697). She remained a sewer until the layoff occurred in
the end of 1987, beginning of 1988, at which time, under
plant rules, she bumped back and became an inspector. She
recalled that the early 1988 layoff of half-bag employees was
the only time in the entire period of her employment that
there had been a layoff in the half-bag department (Tr. 699).
To the extent that Langston testified that he had a recollec-
tion that there might have been seasonal layoffs of half-bag
employees at the conclusion of the cotton season in 1986, his
recollection is unsupported and not credited.
In any event, Teamer had already contacted the union rep-
resentative (President Willie Rudd) in September 1987 for
the purpose of unionization because of alleged unfair treat-
ment by Respondent’s supervisors at the Arlington plant. By
the end of September 1987, she obtained union membership
application cards from Rudd after she and employee Rosie
Nabors had asked about 30 employees whether they wanted
the Union. When they told her that they did, she obtained
50 union membership application cards from Rudd. She,
Nabors, and other Arlington employees signed and distrib-
uted cards. The other employees who distributed cards were
Dorothy Stewart, Justine Harwell, and Josephine Benson. In
October 1987, she and other employees, particularly in the
half-bag department, wore union buttons and union T-shirts.
The shirts, however were not worn until the day before the
November 25, 1987 union election. She wore the union T-
shirt continuously after the election and was named a union
shop steward.
Rosie Nabors, like Teamer, distributed union literature in
the plant break room on breaktime and also outside the plant.
She did this on many occasions in the period October
through November 1987, when the election occurred. She
also wore union insignia (the button and red T-shirt) perhaps
10 times in a 6-week period.
As a result of this union activity, including the signing of
cards by employees at the Arlington plant, the parties stipu-
lated at the hearing that, in Case 26–RC–6994 (Langston
Cos.), the Union filed a petition for certification on October
9, 1987; the petition was served on October 14, 1987; the
parties then executed a Stipulated Election Agreement ap-
proved by the Regional Director for Region 26, on Novem-
ber 2, 1987; a Board-conducted election took place on No-
vember 25, 1987; the unit was a production and maintenance
unit at the Arlington, Tennessee plant, inter alia, excluding
truckdrivers; the tally of ballots showed that, of 64 eligible
voters, 37 voted for the Union and 25 against (with 3 chal-
lenges, insufficient to affect the results of the election); and
that the Union was certified as the statutory collective-bar-
gaining agent on December 3, 1987.
C. Robert Langston’s Attitude Concerning Union
Activities at the Arlington Plant
1. Langston’s testimony on his preelection speeches
Respondent, at its Memphis plant, recognized and had a
collective-bargaining relationship with the International
Brotherhood of Teamsters in the 4-year period 1967–1971.
Langston testified that in October-November 1987,
preelection speeches, he told his employees that if the Union
won the election two things could happen: either there would
be an agreement on a contract or there would not be an
agreement on a contract. In the latter eventuality, three things
could happen: the Union could call a strike; the Union could
agree that its promises were ‘‘impractical’’ and agree to the
Company’s position, in which case there would be a contract,
or lastly, the Union could ‘‘walk away.’’ In particular,
Langston denied telling employees that he would fire them
or fire strikers or that he had fired strikers at the Texas Street
plant when there was a strike called by the Teamsters when
the Teamsters had represented a unit of employees there; and
he denied ever saying that he would close the Arlington plant
in the event of the Union winning the election. He admitted
making two speeches from prepared texts prior to the elec-
tion (Tr. 1564).
On cross-examination, Langston admitted that he could
have told employees that they could lose their jobs if they
went out on strike (Tr. 1578). In response to the question
whether he told them that the employees who went out on
strike in support of the Teamsters had been replaced or fired,
he testified that he did not recall having told the Arlington
employees that Texas Street employees had been replaced or
fired. In response to the further question of whether he could
have told him that, he answered that he could have told them
that but then changed his testimony and said that he could
not have told them that the Texas Street employees had been
fired because ‘‘that never happened and I don’t think it could
happen and I think it is legally impossible to happen’’ (Tr.
1578).
2. Shirley Teamer
Teamer testified, and I find, that prior to the election,
Langston not only made speeches to employees on at least
several occasions, but actually came to and worked in pro-
duction with them at the Arlington plant (Tr. 723). In these
speeches, he said that he didn’t want a union in, wasn’t
going to have a union, and particularly not the union that the
employees were supporting. He told them at in the 1970s, the
Company had a union at the Memphis plant where the em-
ployees went out on strike, and he replaced them all through
advertisements in the newspaper. She also recalled that he
said that the (charging party) union was the cause of the Ae-
olian Piano Company closing its furniture factory.
With regard to negotiating a contract with the Union,
Langston told the employees that they weren’t going to get
a contract; that he wanted no contract; that he didn’t need
a union and that the employees ‘‘could go from 8 to 10 years
without a contract.’’ She testified that when Langston made
these remarks, he spoke to 45 to 50 employees in three
groups (Tr. 735). The speeches were in the lunchroom with
Langston standing and reading from some papers. Respond-
ent did not produce the written speeches.
3. Josephine Harwell
Harwell corroborated that prior to the election, Langston
spoke for 30–35 minutes to several groups of 15 employees
(Tr. 786) in the lunchroom. The employees were paid for the
time they spent at the speeches. With regard to what hap-
pened to Respondent’s employees who had been unionized at
Texas Street, Langston told the Arlington employees that the
Memphis employees had gone on strike and they all got
1028 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
fired. She then changed her testimony and said that he did
not use the word fired but used the word ‘‘replaced.’’ She
thereafter insisted that he said that the employees had been
fired and were replaced (Tr. 787–788). Like Teamer, Harwell
recalled that Langston actually came out on the production
floor and worked along with the Arlington employees. On
one Friday, in mid-October 1987, prior to the election,
Langston asked Harwell ‘‘how did [you] get back here [in
the half-bag department] with these troublemakers?’’ To this
question, Harwell said she merely smiled (Tr. 789). Harwell
was wearing a union button at the time but it was on her
pants leg and he did not see it. She testified that he first
learned of her support of the Union election day, November
25, when she wore the union T-shirt. Prior to that time, she
wore the union button on her pants leg but always success-
fully hid it in the presence of Langston or any other super-
visor.
Corroborating Teamer, she testified, and I find, that con-
cerning negotiating a contract, he told the employees that it
took some companies 8 to 10 years to get a contract; that
he didn’t want a union and particularly didn’t want the union
that the employees were supporting. He gave no reason for
this statement (Tr. 786).
4. Josephine Benson
Benson testified that before the election, she was in a
group of 10 employees in the lunchroom (breakroom) in the
morning when Langston gave the speech. She recalled that
Langston said that the employees voted the union in, the
union would do nothing but take the employees out on strike
and then Respondent would fire them and hire new employ-
ees (Tr. 973). I do not credit her testimony that Langton used
the word ‘‘fired.’’ He further told the employees that the Re-
spondent ’s employees in Memphis had gotten the union in
and thats what happened at that plant. Respondent ‘‘fired
them’’ when the union ‘‘pulled them out of [sic] strike.’’ She
further testified that Langston said ‘‘go ahead and vote the
union in; it didn’t mean that was going to give us a contract;
it would take from 8 to 10 years; we could be negotiating
from 8 to 10 years.’’ In addition, he said that the law re-
quired him to negotiate in good faith but that did not mean
that he had to give the employees anything; that Respondent
and the Union could negotiate from 8 to l0 years but that
didn’t mean that he would have to give the employees a con-
tract (Tr. 916).
On the basis of the above testimony, I credit General
Counsel’s witness’ testimony except that Langston, in his
speeches prior to the election, (a) told the employees either
that the Texas Street employees (supporting the Teamsters 15
years or more prior thereto) had be ‘‘fired’’ or that he would
‘‘fire’’ the employees at the Arlington, Tennessee plant; and
(b) told the employees that he would close the plant. Thus
I conclude that he told the employees that he didn’t want a
union; that he didn’t want the union they were supporting;
and that in the event the employees voted for the Union, he
would not give it a contract but would rather negotiate from
8 to 10 years before giving them anything. I further conclude
that these Langston speeches manifested a substantial union
animus from Respondent’s president and chief operating offi-
cer, an owner of a substantial (if not controlling) interest in
Respondent. I further conclude, on the basis of his admission
(Tr. 1578), that he ‘‘could have’’ told the employees, that he
did tell them, that if they went on strike they ‘‘ could lose
their jobs.’’ Lastly, I conclude that he told the employees
that, in the absence of a contract through bargaining, the al-
ternatives were that the Union could call a strike; the Union
could agree that its promises were not ‘‘practical’’ and agree
to the Company’s position, in which case there would be a
contract or that the Union would simply walk away, which
had been his experience at the Texas Street location in 1971
(Tr. 1450–1451).
None of Langston’s statements were alleged to be or con-
stitute unfair labor practices. Nevertheless, as above noted, I
find that they constitute evidence of substantial animus
against the Union which may well have affected his attitudes
after the election in dealing with the Union and with employ-
ees who were supporters of the Union
D. The Allegations in the Third Consolidated Complaint
1. Overtime work to Teamer and Nabors, October 1987
Paragraph 7 of the third consolidated complaint alleges
that on or about October 10, 1987, Respondent refused to
permit its employees, Shirley Teamer and Rosie Nabors, to
work overtime, which conduct it is alleged, resulted from
their engaging in union and concerted activities, the result of
which constitutes a violation of Section 8(a)(1) and (3) of the
Act.
The facts regarding the failure to offer Teamer and Nabors
overtime on Saturday, October 10, 1987, are largely undis-
puted. As above noted, Teamer and Nabors were initiators of
the union organizational campaign in late September and
early October 1987, in contacting the Union and obtaining
and distributing authorization cards among coemployees.
Nabors and Teamer also distributed literature in the break
room, and outside the plant up until the election. Respondent
undoubtedly had knowledge of these early, overt union ac-
tivities. Nabors wore her union pin almost every day. On the
other hand, Justine Harwell, Josephine Benson, and Dorothy
Stewart also distributed union cards in the break room prior
to the election. It is undenied that in addition to Nabors and
Teamer, Justine Harwell, Josephine Benson, Dorothy Stew-
art, Cynthia Tapplin, Cyrus Payne, and Helen McBride all
openly wore union insignia prior to this October 10 overtime
issue (Tr. 683–684). Although Teamer and Nabors were
named the only shop stewards among the half-bag employ-
ees, Respondent was not notified of their being named to
these positions until January 20, 1988. On the other hand,
contrary to any denial by Robert Langston, I conclude, on
the basis of credited testimony of Josephine Harwell, that
Langston’s October question to Harwell as to why she was
in with the ‘‘troublemakers,’’ referred to the prounion half-
bag employees, United States Steel Corp., 279 NLRB 16
(1986).
On October 7 or 8, 1987, Bill White, Arlington plant man-
ager, had to schedule overtime for Saturday, October 10, be-
cause of receipt of an order to sew labels on bulk bags. Thus
on Wednesday or Thursday October 7 or 8, White told all
the employees in both the bulk-bag department and the half-
bag department, except Nabors and Teamer, that they would
have to work on Saturday, October 10. On Friday, October
9, White asked four half-bag employees to work overtime on
the following day, to sew labels on the bulk bags. Teamer
and Nabors were the only employees among all production
1029LANGSTON COS.
employees (bulk-bag and half-bag employees) who were not
asked to work. When Nabors learned that White had asked
the other half-bag employees to work overtime, she asked
him, on October 9, if he wanted her and Teamer to work on
Saturday. White told her that he did not.
The work performed on October 10 consisted of sewing
and inspection work. Teamer was capable of performing both
the sewing and inspection work and Nabors was capable of
performing the inspection work.
General Counsel alleges that the elements of a prima facie
case were proved: that Teamer and Nabors were denied the
overtime work on October 10 because of their leadership in
the organizing campaign and that Respondent had failed to
meet its subsequent burden to prove that they were denied
the overtime for legitimate reasons. Thus General Counsel
argues, and there is no dispute, that there was work available
on October 10 which Teamer and Nabors were both capable
of performing; that Teamer and Nabors were the only 2 of
60 employees who were not offered work; that other employ-
ees who had not displayed support of the Union declined of-
fers to work; and that Teamer and Nabors held greater se-
niority than employees who were offered overtime work.
Thus, General Counsel argues, there exists Respondent’s
union animus, its knowledge that Teamer and Nabors sup-
ported the Union, the timing of the action shortly after the
initiation of, and during, card distribution among the unit
employees and, as above noted, the lack of a legitimate busi-
ness reason for the failure to offer them the overtime work
.
a. Respondent’s defense
White testified that he did not need six half-bag employees
to sew labels, only four. He needed two sewers and two
helpers. He said that he chose the two sewer/helper teams
who sewed half-bag barrels (as opposed to Teamer and
Nabors who only sewed half-bag hems); and that he picked
the Benson and Harwell sewing teams because their work
stations were located more conveniently to the areas where
the bags were beeing worked on and where the baling would
occur. White denied knowledge of the union activities of
Teamer or Nabors and denied knowing that Teamer and
Nabors wore union buttons as of his decision not to use them
on overtime. White’s undenied testimony is that on October
10, the bulk-bag employees worked a full 8 hours but the
half-bag employees finished earlier and were released after 7-
3/4 hours, because the inspectors ran out of bags to inspect
and he had the half-bag employees sweeping the floor.
b. Discussion and conclusions
The undisputed fact is that of the entire complement of
more than 60 employees employed in both bulk-bag and
half-bag production at the Arlington plant, the only 2 em-
ployees who were not offered overtime were Nabors and
Teamer. This disparate fact, coupled with their being original
union instigators and organizers, makes for an easy and rea-
sonable inference that, in the presence of Respondent’s clear
and outstanding union animus, the failure to select them for
overtime was unlawflllly motivated. Respondent’s denial of
any knowledge of the union activities of Teamer and Nabors
is not acceptable because their open and notorious wearing
of buttons and other union paraphernalia before October 10
and before White’s October 9 denial of overtime. It is there-
fore disingenuous and extremely suspicious where White de-
nied such knowledge and Respondent, itself, characterizes
White’s denial as possibly being ‘‘wrong’’ (R. Br. p. 6).
The drawing of the necessary inference of unlawful mo-
tive, however, is undermined, as Respondent argues, by the
fact that all the members of the half-bag department openly
wore the same type of union insignia that Nabors and
Teamer wore prior to October 10, 1987, and they were all
asked to work overtime on October 10. In addition, Nabors
some that misleadingly testified what Respondent was noti-
fied that only two of the half-bag employees—she and
Teamer—were made union stewards. The evidence showed
that Respondent was not notified of their being selected
union stewards until 3 months after the alleged discrimina-
tory action herein, i.e., on January 20, 1988. Furthermore, it
is undisputed that Nabors received a promotion from ‘‘help-
er’’ to ‘‘sewer’’ in September 1988, after Respondent alleg-
edly discriminated against her in October 1987, and after she
had been appointed shop steward along with Teamer.
The underlying problem in the present case is not the ex-
istence of a theoretical prima facie case; that exists. Rather,
as Respondent argues, there is no proof of any disparate
treatment among the prounion employees who constituted the
half-bag department. While disparate treatment is not a con-
dition precedent to an inference of unlawful discrimination,
in the absence of evidence of direct discriminatory motive,
it is sometimes an element in the formation of an inference
of unlawful motivation.
Here, they all wore union insignia, as did Nabors and
Teamer, and I will assume on the basis of the evidence be-
fore me that Respondent knew that all such employees fa-
vored the Union. With regard to Nabors and Teamer, there
is no evidence of direct discriminatory motive. The problem
with drawing such an inference from the entire record is that
there is no proof that Respondent knew that, among all the
prounion half-bag employees, it was Nabors and Teamer who
were the union instigators or otherwise distinguished them-
selves in such fashion as to engage Respondent’s substantial
union animus. In short, in the absence of evidence of some
distinguishing factors on which I might find that Respond-
ent’s union animus directly fastened; I cannot conclude that
Respondent singled out Nabors and Teamer for unlawful
treatment in failing to offer them overtime work on October
10, 1987, when it offered work to all other prounion employ-
ees. Thus, I conclude, that while a weak prima facie case ex-
ists, and examination of all the facts and circumstances dem-
onstrates the General Counsel failed to prove that Respond-
ent (a) singled out these two employees because of their
union activities, (b) when their union activities were the
same or, on this record, indistinguishable from the union ac-
tivities, (c) known to Respondent of the other openly
prounion employees in the half-bag department. In view of
these conditions, I conclude on the basis of the entire record
that the prima facie case has been rebutted and that General
Counsel has failed to support its statutory burden to prove
that Respondent failed to offer overtime to Nabors and
Teamer on October 10 because of unlawful reasons. I there-
fore recommend to the Board that this allegation be dis-
missed as insufficiently supported in the facts. In this regard,
I have applied the rule in NKC of America, 291 NLRB 683
1030 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Wright Line, 251 NLRB 1083 (1980), enfd. on other grounds 662 F.2d 899
(lst Cir. 1981), cert. denied 455 U.S. 989 (1982).
5 The third consolidated complaint, par. 8, recites that the above allegations
regarding the overtime work of Shirley Teamer and Rosie Nabors were dis-
posed of in a settlement agreement between Respondent and the Regional Di-
rector, Region 26, on March 9, 1988. The complaint also recites (par. 28) that
the Regional Director, having issued the complaint alleging the commission of
further unfair labor practices, vacated and set aside the aforesaid settlement
agreement (Case 26–CA–12392). General Counsel failed to suggest that I draw
any adverse inference from Respondent’s having executed this settlement
agreement with the Regional Director and, of course, I draw none.
(1988), in which the Board applied its Wright Line analysis.4
There the Board held, that the employer may defend either
by demonstrating that it would have taken the same action
regardless of any protected activity engaged in by the
discriminatees, NLRB v. Transportation Management Corp.,
462 U. S. 393, 400–401 (1983); or, it may rebut the General
Counsel’s prima facie case (in which there is no direct evi-
dence of discriminatory motive) by showing a lack of dispar-
ate treatment. General Counsel has of offered insufficient
other proof distinguishing the activities of Teamer and
Nabors so that I might infer, nevertheless, a discriminatory
motive. See footnote 1, NKC of America, supra. I therefore
recommend that the allegation be dismissed.5
2. The alleged unlawful transfer of unit work from
Arlington to Memphis
There is no dispute that, following the November 25, 1987
election, on December 3, 1987, the Union was certified as
the statutory collective-bargaining representative of the Ar-
lington production and maintenance unit, an appropriate unit;
and that since November 1987, the Union has been the Sec-
tion 9(a) representative. Indeed, in a letter to the Union of
December 7, 1987 (G.C. Exh. 2(B), having already received
the December 3 Certification of Representative from the Re-
gional Director, Respondent notified the Union that it ‘‘rec-
ognized the Union as the bargaining agent, and stands ready
commence negotiations at a mutually convenient date and
place.’’ The same letter notes that Respondent was expecting
a request for data from the Union concerning the bargaining
unit so that the Union might ‘‘better prepare for negotia-
tions.’’
On December 10, 1987, the Union submitted a request for
27 elements of information that it required for bargaining and
suggested January 7 and 12, 1988, as bargaining dates (G.C.
Exh. 2(A)). A week later, on December 18, 1987, Respond-
ent notified the Union (G.C. Exh. 2(D)) that, with the end
of the cotton season, Respondent would cease making half
bags at the Arlington plant between December 3 and January
8, and would lay off eight employees. In the same commu-
nication, Respondent notified the Union that, consistent with
past practice at the Arlington facility and consistent with the
layoff and recall policy in Respondent’s employee handbook,
the eight half-bag employees would be permitted to exercise
plantwide seniority in order to ‘‘bump’’ into jobs for which
they were qualified.
While Respondent suggested, in a letter to the Union dated
December 22, 1987, that contract negotiations begin on Janu-
ary 1 (G.C. Exh. 2(C), on December 31, 1987, the parties
met to discuss the shutdown of the half-bag department and
the layoff of employees (Tr. 30). In the meeting, Respondent
told the Union that it anticipated that production of half bags
would resume at Arlington in March or April 1988 (Tr. 30–
31). On or about January 15, 1988, half-bag production
ceased; Respondent conducted a layoff in accordance with
the Respondent’s letter of December 18 (Tr. 45–46); and em-
ployees in the half-bag department, exercising plantwide se-
niority, bumped into other jobs in bulk-bag production. This
caused the layoff of employees in the bulk-bag department.
General Counsel alleges, paragraph 14 of the third consoli-
dated complaint, that the layoff of these bulk-bag employees
violated Section 8(A)(1), (3), and (5) of the Act when, in
March-April 1988, Respondent transferred unit work from
Respondent’s Arlington, Tennessee facility to the Texas
Street facility. The cessation in Arlington of half-bag produc-
tion in January was also alleged as a violation.
At least four employees (Harwell, Teamer, Stewart, and
Benson) who elected to bump into other positions suffered
an ‘‘initial’’ reduction in earnings (G.C. Br. p. 7). While the
union requested an explanation of how this had occurred in
view of the historical calculation of incentive pay (based es-
sentially on the prior month’s production rate of each em-
ployee (G.C. Exh. 2(L)), Respondent effectively explained
the drop in wages (G.C. Exh. 2(M)). In fact, each bumping
employee was informed that the rate of pay would be that
of the job into which each had bumped; and each of the four
employees, after being so informed, agreed to exercise her
right to bump into the new job (G.C. Exh. 2(M)).
On March 24, 1988, Respondent notified the Union (G.C.
Exh. 2(N)) that the Company had decided to produce half-
bags for the 1988 cotton season at the Texas Street facility
(Memphis) notwithstanding that the work had been done for
two prior seasons at Arlington. Respondent observed that,
prior to those two seasons, half bags had been made at the
Crowley, Louisiana plant, and before that at the Texas Street
plant in Memphis. The notification also included the advice
that half-bag machinery would be transferred as soon as pos-
sible. (In fact, there was no substantial transfer of any ma-
chinery between the two locations). Respondent, in the same
communication, notified the Union that the relocation of pro-
duction would result in cost savings because manufacture
would occur where the product would be consolidated and
shipped. Generally stating that there were other cost and effi-
ciency considerations weighing in favor of consolidating
half-bag production at Texas Street, Respondent specifically
stated that labor cost was not a factor. Finally, it stated that
savings from factors other than labor costs were factors over
which the Union had no control.
In this regard, Respondent notes that the historical produc-
tion of half bags demonstrates that it was a ‘‘vagabond’’
product (R. Br. p. 16): half-bag production originated at the
Texas Street (Memphis) plant in 1981; moved in its entirety
to the Jackson, Mississippi plant in 1982; in 1983, was pro-
duced in entirety both at the Jackson, Mississippi and Crow-
ley, Louisiana plants; in 1984 all half-bag production was
concentrated and consolidated at the Crowley, Louisiana
plant through 1985–1986 with half-bag production ceasing in
its entirety at the Jackson, Mississippi plant, resulting in the
layoff of employees at Jackson, Mississippi. In the period
June-August, 1986, half-bag production was transferred from
Crowley, Louisiana to the two Tennessee plants. There was
a layoff at the Crowley, Louisiana plant when half-bag pro-
duction was discontinued.
1031LANGSTON COS.
a. Half-bag production resumes at the Texas Street
location in Memphis
On March 24, 1988, Respondent notified its employees in
the nonunionized plant at Texas Street that half bags would
be produced there during that year and it planned on having
two sewers and folder-counters on such production. It invited
Texas Street employees who were interested in these posi-
tions to sign up. Six employees signed for sewer positions
and nine for folder-counter positions. Respondent selected
two Texas Street employees as sewers (Thompson and
Heard) and two employees as folder-counters (Tart and Bry-
ant) (G.C. Exh. 18; G.C. Br. p. 8)). These four employees
began work on half bags in the payroll week ending April
9, 1988. Thompson testified that the production standard es-
tablished for her and Heard was 750 bags per 8 hours, a
standard different from that of the half-bag sewers at, Arling-
ton. Thompson, who had no experience sewing half bags,
was unable to meet this standard and was retransferred to her
old sewing position. Heard also failed to make her half-bag
production standard and was reassigned to her old job. They
had worked on half bags for about 8 weeks.
Production of half bags at Texas Street required the same
similar production functions as that at Arlington. Production
at Texas Street involved no new purchase of equipment or
outlay of capital expenditures and there was no change or
modification in the finished product. The rates of pay of both
Heard and Thompson, working on half-bags, exceeded the
rates of pay of the half-bag sewers at Arlington.
Half-bag production resumed at Arlington, as above noted,
in late September 1988, and continued through November
1988, due to a sudden and unexpected demand for half bags
because of an especially large cotton crop.
In a letter of April 11, 1989, the Union requested Re-
spondent to furnish the data related to the transfer of the
half-bag work to Texas Street (G.C. Exh. 2(O)). Respondent
answered the letter on May 23, 1989 (G.C. Exh. 2(P)), spe-
cifically refusing to furnish information concerning 11 of the
18 items requested because it asserted, the Union’s request
related to the ‘‘decision’’ regarding the transfer rather than
to the ‘‘effects’’ of the decision.
Respondent denies, in its answer, that the information re-
quested by the Union was necessary for and relevant to the
Union’s performance of its function as exclusive bargaining
representative and denies that it failed and refused to furnish
the Union with the information requested. Rather, Respond-
ent alleges (answer, par. 18) that it furnished the Union with
requested information as to the reasons the half-bag product
was relocated, from Arlington to Memphis, and how the relo-
cation would save Respondent money. General Counsel as-
serts that Respondent’s answer to the third consolidated com-
plaint constitutes an admission that it transferred the unit
work without affording the union an opportunity to bargain
over the decision. Reading Respondent’s answer in conjunc-
tion with its communication to the Union of May 23, 1988
(G.C. Exh. 2(P)), wherein it noted that on March 24, it of-
fered to negotiate with the Union concerning the effects of
the decision to relocate, I conclude that, as a matter of fact,
Respondent, as alleged in paragraph 15 of the third consoli-
dated complaint, transferred the unit work without affording
the Union an opportunity to negotiate and bargain with re-
spect to the decision concerning the transfer.
Similarly, with regard to the allegation that the Respondent
refused to provide the Union with information concerning the
decision to transfer the work, Respondent admits (R. Br. p.
21) that it did not respond to the request for information re-
lating to the ‘‘decision’’ to relocate.
b. The annual meeting of the National Cotton Counsel,
March 2, 1988
On March 2, 1988, the National Cotton Counsel held its
annual meeting in Memphis. President Langston, Vice Presi-
dent George Smith and Operations Director Don Wiseman
attended the meeting.
As above noted, in early 1986, half-bag production was
terminated at Crowley, Louisiana and moved to a ‘‘split’
production site: to the Memphis and Arlington plants.
Langston testified that he considered the split-site produc-
tion of half-bags unsatisfactory; in l986, he did not place all
production in the Memphis plant because the Memphis plant
did not have available sewing capacity at that time, and that
was the reason that they went into the split operations in
1986. Operations Directer Donald Wiseman testified (Tr.
1719–1721) that, in addition to not having enough half-bag
production capacity in Texas Street in 1986, Respondent’s
Arlington facility was a new plant and did not have a full
book of orders in the production of bulk bags. To meet over-
head, additional production was required. He therefore put a
portion of the half-bag production at the Arlington plant.
Like Langston, Wiseman testified that the split-site produc-
tion was unsatisfactory because, among other reasons, there
was an excess of ‘‘handling’’ of the baled bags with result-
ing damage the bags and complaints from customers. He tes-
tified that what caused the consolidation in March-April
1988 at the Texas Street plant of half-bag production was
that the Texas Street plant now had open production capacity
due to a decrease in the demand for ‘‘flat weave’’ (textile)
bags and there had been a decrease in the demand for half-
bags. In addition, there would be an elimination of the truck-
ing of the completed, baled, half bags between Arlington and
Texas Street where the baled half bags would be consoli-
dated and warehoused.
Apparently what allegedly precipitated consolidation of all
half-bag production at the Texas Street plant, however, was
the occurrence of the March 2, 1988 meeting of the National
Cotton Council. The staff report of March 2, 1988, appar-
ently read and distributed at the meeting at which Langston,
Wiseman, and Smith were present, showed that the 1981 cot-
ton crop was 90 percent packaged with polypropylene mate-
rials of which 51 percent were half bags and 34 percent spi-
ral-sewn bags (‘‘cottontainers’’). Jute and burlap were used
on only 8 percent of the crop. In 1982, 91 percent of the cot-
ton crop was packaged in polypropylene materials with 50
percent in half bags and 37 percent in spiral-sewn bags. In
1983, polypropylene packaged 94 percent of the cotton crop
with 51 percent in half bags and 40 percent in spiral bags.
In 1984, polypropylene packaged 96 percent of the crop with
49 percent in half bags and 44 percent in spiral bags. In
1985, 97 percent of the crop was packaged in polypropylene
with 38 percent in half bags and 57 percent in spiral-sewn
bags. Jute and burlap declined to 1 percent of the total bag-
ging. In 1985, woven polypropylene as a packaging product
slipped to 86 percent of the crop, down from 97 percent the
previous year (R. Exh. 14, p. 3). The slippage was due to
1032 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
an increase in the use of burlap bags and polyethylene bags.
In addition, 60 percent of the crop was wrapped in spiral-
sewn bags and it was noted that there was a ‘‘large reduc-
tion’’ in the use of ‘‘bags and sheets’’ (half bags) (R. Exh.
14, p. 4). In the packaging of the 1987 crop, polypropylene
slipped to an 80-percent share (down from 86 percent in
1986 and 97 percent in 1985). Of this 80-percent share 56
percent was packaged in spiral-sewn bags and only 23 per-
cent in half bags. Jute and burlap packaging were used on
15 percent of the crop with polyethylene remaining a con-
stant 4 percent.
Langston characterized the above statistics as showing a
‘‘dramatic reduction’’ in the demand for half bags (from the
early 1980s until the present time) and stated that the de-
mand for half bags, in terms of its percentage of the total
of woven polypropylene wrappers, was expected to drop to
an annual demand of about 15 percent of woven poly-
propylene packaging materials.
Langston urged his subordinates to analyze and determine
whether half-bag production could be consolidated in one lo-
cation (Tr. 1540) and, on the very next day, March 3, 1988,
Vice President George Smith submitted a memorandum to
Langston (R. Exh. 15) entitled ‘‘1988 half-bag production.’’
The memorandum starts with the statement, ‘‘Bob, I rec-
ommend that we manufacture half-bags from the 1988 sea-
son at our Texas Street facility. ‘‘His recommendations are
based on three considerations: (1) logistics; (2) production;
and (3) market.
With regard to ‘‘logistics,’’ the Smith memorandum as-
serts that since the woven polypropylene is supplied in
mixed shipments of half-bag and ‘‘cottontainer’’ (spiral bag)
fabric, the Texas Street receivers of these shipments must
otherwise rehandle and transport the half-bag portion back to
Arlington. Further, since the bottoms of the half bags are
printed at Texas Street ‘‘for housekeeping and cost reasons,’’
this requires the baling and transport of the bottoms of Ar-
lington. Lastly, half bags baled and a asembled at Arlington
must be transported to Texas Street for distribution and stor-
age. Thus he concludes that, from a logistics point of view,
the manufacture of half bags should be at Texas Street.
With regard to ‘‘production,’’ the Smith memorandum as-
serts that half bags at Arlington are cut on its Weist machine
but that machine’s capacity is fully utilized in bulk-bag pro-
duction. To continue half-bag production in light of such full
utilization would require expensive manual cutting on half
bags. Secondly, the prior cutting capacity at Texas Street had
been fully utilized on spiral bags and half-bag bottoms. With
the increase in burlap market share and the reduction in
woven polypropylene share of the cotton container market,
Smith asserts that ‘‘some cutting capacity’’ has been freed
up providing the opportunity to process half bags at Texas
Street. He notes at this had not been available in past years.
Lastly, with regard to ‘‘market’’ considerations, Smith as-
serts that the statistics revealed at the prior day’s (March 2,
1988) meeting of the National Cotton Council, showed a pro-
gressively smaller half-bag share of the annual bale wrap
market. Since burlap was replacing significant quantities of
polypropylene containers, Smith asserts that for the first time
Respondent might have the capacity to process all their cot-
ton packing products (half bags and spiral bags) in one loca-
tion. Finally, Smith asserts that he would make provisions
for the manufacture of half bags at Texas Street by early
April 1988.
Five days later, on March 8, 1988, Operations Manager
Don Wiseman submitted his memorandum regarding half-bag
production. Having finalized the 1988 projection for poly-
propylene half-bag requirements, and considering all factors,
he recommended that full scale manufacturing of half bags
begin no later than March 15 at Texas Street. He cites three
basic factors in support of this recommendation: (1) negotia-
tions to purchase complete half bags for resale were on terms
which proved to be uncompetitive; (2) The 1987 manufacture
of half bags at Arlington created major logistical problems.
He notes that all other bagging and metal tie manufacturing
had been manufactured or shipped from the Texas Street
plant and that combining all items for truck shipments was
hindered by having two separate locations, especially waiting
for half-bag products to transferred from Arlington to Texas
Street in order to have a complete truck load. Furthermore,
from a raw material standpoint, it would be more ‘‘effec-
tive’’ to bring all cotton bale materials to one plant rather
than having to distribute to two different facilities; (3) There
would be a reduction in both inbound and outbound freight
expenses and delivery and shipping from one facility. In par-
ticular, there would be an elimination of any common carrier
‘‘drop charge’’ for stopping at two plants and a similar
‘‘pick up’’ charge for loading at two plants. In sum, he rec-
ommended both on the basis of logistics and cost effective-
ness that the entire product line be placed under one roof and
that there would be an overall benefit in manufacturing the
half bags at Texas Street.
Langston testified that what spurred him to a conclusion
the there should be a consolidation of half-bag production
were three events: (1) the annual meeting of the National
Cotton Council; (2) the decline of requirements of textile
bags produced at Texas Street, which had occurred for the
first time since 1981 and therefore opened up both room and
production capacity at Texas Street; and (3) even poly-
propylene spiral-bag demand had decreased in the face of an
increase usage of burlap bags. He testified that time was the
essence to commence production in April because of the ad-
vent of the cotton growing season between April and Octo-
ber-November of each year.
In support of Respondent’s December 31 statements to the
Union that half-bag production would restart at Arlington in
March, Langston testified that the January halt of production
at Arlington had only been seasonal and that there was no
intent to close down half-bag production at Arlington at that
time. What created a different conclusion, and a decision not
to restart half-bag production at Arlington, was the advent of
the above three factors which show that consolidated produc-
tion should occur, and should be instituted at Texas Street.
He further testified that in making a decision to consolidate
half-bag production, he relied on verbal statements made at
the National Cotton Council meeting on March 2 (Tr. 1523)
as well as the memoranda he received from his subordinates.
Lastly, it should be noted that the printing on the half
bags, a requirement of the National Cotton Council (requir-
ing the name of the fabric manufacturer and the name of the
bag maker to appear on the bag) is done on a printing ma-
chine located at the Texas Street location where it is attached
to its Weist cutting machine. There is no similar printer at
the Arlington location.
1033LANGSTON COS.
c. The testimony of Justine Harwell
Harwell testified that in the period of her employment in
the half-bag department at Arlington, April 1986 through No-
vember 1987, there had not been a layoff of half-bag em-
ployees. In November 1987, however, about 2 days before
the election (Tr. 770), Harwell had a conversation with
Langston who was at the Arlington plant. She testified that
there was a rumor in the plant that Respondent was going
to halt its half-bag operations at Arlington. Harwell called
Langston over and asked him if he had heard the rumor in
the plant and told him she wanted to know the truth. She
asked him whether it was true that half-bag production was
getting ready to close. Langston said it was not true.
Langston said, ‘‘half bags is a year-round job’’ (Tr. 769). As
above noted, it was Langston who, prior to the election, and
indeed in mid-October of 1987, asked Harwell, while he was
handing out paychecks on a Friday: ‘‘How did you get back
here with these troublemakers?’’ (Tr. 788). On the other
hand, Harwell testified that working conditions in bulk bags
were more desirable than in half bags. Indeed, in 1986, when
she was first transferred from bulk-bag to half-bag produc-
tion, she objected because the half-bag production area was
smokey and cold in winter (Tr 799). Finally, she testified that
although her incentive rate as a half-bag sewer was $5.15 per
hour, and while her rate was reduced in the bulk-bag bump-
ing of January 19 to $3.95 an hour, her incentive rate rose
only to $4.44 an hour in bulk bags (Tr. 804). Lastly, the
above November 1987 rumor about which she spoke to
Langston must be measured against Respondent’s December
31 assurance to the Union that half-bag production would re-
sume in Arlington in March. There is no suggestion that such
a statement was false.
d. The testimony of Ron Wargo
At the hearing, in view of Harwell’s testimony, above, Re-
spondent introduced its payroll records relating to the em-
ployees who were formerly employed as half-bag sewers and
helpers who had bumped into bulk-bag production subse-
quent to the January, 1988 close-down of half-bag production
at Arlington (R. Exh. 41). It is these figures which substan-
tiate General Counsel’s assertion that employees who, having
exercised plantwide seniority bumped into positions in the
bulk-bag department, initially received a reduction in earn-
ings, particularly Harwell, Teamer, Stewart, and Benson
(G.C. Br. p. 7). It is uncontradicted, however, based on Re-
spondent’s records (R. Exh. 41), that the seven bumping em-
ployees fared better in terms of their rates of pay after bump-
ing into the bulk-bag department than in producing or work-
ing on half bags.
Josephine Benson: Benson enjoyed a wage rate of $4.96
per hour in the 6-month period June through December 1987.
Upon bumping into bulk bags, her rate fell to $4.92 per hour
(as General Counsel asserts, this was an ‘‘initial’’ reduction
in earnings) but in the period April through December 1988,
in bulk Bags, Benson’s rate rose to $5.88 per hour. When
the additional factor of the resumption of the half-bag pro-
duction (in the period September through November 1988) is
taken into account, Benson’s average wage rate in the April
1988 through December 31, 1988 period rises to $6 per hour.
Justine Harwell: In the period June 1987 through January
1988, she earned an average of $5.04 per hour. After bump-
ing into bulk bags in January 1988, the record shows that in
the 3-month period January 1988 through April 1988, her
hourly average rate of pay declined to $64.25 per hour. In
the succeeding period April 1988 through December 1988,
her hourly wage rate rose to $5.04 an hour; and when her
work on half bags was taken into account, her wage rate in-
creased to $5 per hour.
Shirley Teamer: In the period June 1987 through January
1988, she had average hourly earnings of $4.26 per hour.
Upon bumping into bulk bags, her average hourly rate de-
clined to $4.13 per hour, but in her period April 16, 1988
through December 31, 1988, her average hour rate rose to
$4.74 per hour. When half-bag work is included in the period
September to November 1988, her average hourly rate rose
to $4 per hour.
Dorothy Stewart: In the period June 1987 through January
1988, she had average hourly earnings of $4.16 per hour.
Upon bumping into bulk bags in January of 1988, her aver-
age rate rose to $4.59 per hour and commencing April 1988
through December 1988, her average hourly rate rose to
$5.17 per hour. When her work on half bags in September
through November 1988, is included, her average hourly rate
rose to $5 per hour.
Rosie Nabors: In comparable periods she had her $3.87-
per-hour wage rate in half bags rise, upon bumping into bulk
bags, to $3.90 per hour and thereafter to $4 an hour.
Helen McBride: In comparable periods, she had her $3.85-
per-hour half-bag rate rise up to $3.90 in bumping into bulk
bags, which rate thereafter continued through December 31,
1988.
Lastly, the hourly paid salaries (as opposed to incentive
rates) paying $3.45 per hour as a half-bag baler rose, upon
bumping, to $3.67 an hour and thereafter to $3.83 per hour
in the period April through December 1988.
e. Discussion and conclusions
General Counsel advances seven basic arguments in favor
of his conclusion (G.C. Br. p. 32) that the transfer of half-
bag work from Arlington to Texas Street, in violation of Sec-
tion 8(a)(3) and (5) of the Act, was motivated by a desire
to discourage Respondent’s employees from continuing to
support the Union and to undermine the Union’s bargaining
position. Thus, in moving the half-bag functions from Ar-
lington, a unionized facility, to Texas Street, a nonunion fa-
cility, General Counsel states that the following seven rea-
sons demonstrate Respondent’s discriminatory and unlawful
motive.
(1) Respondent removed the work from employees who
were most experienced in producing half-bags and assigned
it to employees who possessed no experience in such work.
The short answer to this proposition is that it is entirely
true.
(2) Respondent lost the productivity edge at Texas Street
by admittedly shifting the work from employee-to-employee.
The record shows that the two sewers who were assigned
the half-bag sewing function from among Respondent’s re-
quested volunteers performed the half-bag sewing function
for about 8 weeks, and could not reach the production stand-
ard set by Respondent. The answer to his proposition is that
it is essentially true though part of the first reason advanced
by General Counsel.
1034 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 It seems to me that Respondent is placed in a legal dilemma by General
Counsel’s arguments. A showing that Respondent transferred unit work to
nonunion employees who were paid at heigher rates, according to General
Counsel, supports an inference of retaliatory and discriminatory motive in vio-
lation of Sec. 8(a)(3) of the Act. On the other hand, if General Counsel shows
that the transfer of unit work was to employees at Texas Street paid less than
the employees at Arlington, General Counsel would ordinarily urge this as
proof that ‘‘labor costs’’ were a significant factor in the decision to transfer
the work and thus be evidence of a violation of Sec. 8(a)(5) and (1), if not
8(a)(3), of the Act. Otis Elevator Co., 269 NLRB 891 (1984); WXON-TV, 289
NLRB 615 (1988).
(3) Respondent admittedly failed to cut costs by having
the work performed by fewer employees at Texas Street.
General Counsel accurately described Langston’s testi-
mony (Tr. 513) in which he admitted that it was not cheaper,
in terms of labor costs, to make the half-bags at the Mem-
phis Street location. General Counsel, however, failed to cite
Langston’s testimony that the ‘‘one-step’’ production oper-
ation at Texas Street was ‘‘more efficient at Texas Street just
because there was less moving around and less steps in the
process, just less costly overall’’ (Tr. 514). In support of
Langston’s testimony (he was unfamiliar with the underlying
record in support of his conclusion that production was less
costly at Texas Street notwithstanding that labor cost might
not have been less costly), Respondent produced, at the hear-
ing, its interplant and extraplant bills of lading to dem-
onstrate the comparative number of trucking operations gen-
erated with and without split-site production (R. Exh. 18).
Thus, the underlying records were available to General
Counsel to inspect whether the computation, executed for
purpose of the hearing, was accurate (R. Exh. 18).
The computation compares trucking activity in fiscal years
1987 and 1988 by breaking down trucking operations both
on a tractor-trailer basis and a pickup truck basis concerning
half-bag shipments; shipments other than half-bag shipments;
and shipments involving half bags when in combination with
other shipments. In fiscal year 1987 (December 1, 1986–No-
vember 30, 1987), tractor-trailer activity involving half bags
alone developed 53 bills of lading. This, course, is the period
of ‘‘split-site’’ production with part production at Texas
Street and part in Arlington. In addition, in the same period,
there were 16 bills of lading generated where half bags were
shipped either from or to Arlington and Texas Street in com-
bination with other goods and materials. Thus, in fiscal year
1987, with split-site production, there was a total of 69 trac-
tor-trailer bills of lading generated. In the same period, there
were 30 pickup truck deliveries and pick ups.
In fiscal year 1988 (December 1, 1987 through November
30, 1988), there were a total of 23 bills of lading generated
at the tractor-trailer level and 3 where half bags were in
combination with the other materials. The records, however,
demonstrate that the 23 tractor-trailer loads of half bags in
fiscal year 1988, included generation of tractor-trailer activity
where there was still split-site production (December 1987-
January 1988). But even without regard to the weight to be
assigned to these numbers, it is evident that the tractor-trailer
bills of lading in fiscal year 1988 were only one-third the
number of those in fiscal year 1987 because of a full split-
site production effort in progress. Similarly, without weigh-
ing the figures to show the continuance of split-site produc-
tion in part, in fiscal 1988, the number of half-bag generated
bills of lading on a pickup truck basis diminished to 10 inci-
dents.
While it is true that the dollar value of this diminution of
trucking activity between the plants following transfer of the
unit work was not produced, it does not necessarily follow,
as General Counsel argues (G.C. Br. p. 33) that the saving
and shipping costs were ‘‘negligible.’’ Whether the shipping
costs were ‘‘negligible’’ may be; but the record is silent as
to what costs were in fact saved by diminution of such truck-
ing activity. In any event, however, the cost associated with
diminution of damaged bales and similar costs must be taken
into account. Thus I am not convinced by General Counsel’s
argument that a discriminatory motive should be inferred be-
cause Respondent failed to show cost reduction by having
the work performed by fewer employees at Texas Street. In
view of Respondent’s argument supported by the facts, that
the transfer to Texas Street was executed without regard to
direct employee labor costs, and in view of the presence of
the continued argument of Respondent that overall cost and
convenience were taken into account, along with noncost fac-
tors, I do not conclude that General Counsel’s argument ei-
ther that the reduction in overall costs were ‘‘negligible’’ or
that merely because the employees to whom the work was
assigned at Texas Street were paid at a higher wage level re-
quired the drawing of an inference of improper motive.6
(4) Respondent deprived employees at its unionized Ar-
lington plant of available work, resulting in an unnecessary
shifting of jobs at Arlington and an unnecessary layoff.
I regard General Counsel’s argument to be ambiguous. I
do not recognize that ‘‘an unnecessary shifting of jobs’’ and
an ‘‘unnecessary layoff’’ demonstrates conduct which runs
afoul of the statute, especially its prohibition against dis-
criminatory activity. The uncontradicted record demonstrates
that the object, according to General Counsel, of Respond-
ent’s discriminatory activity was the employees in the half-
bag deparrtment. While it is true that the were deprived of
half-bag work, there is no proof that they were deprived of
‘‘available work’’ since they were immediately bumped into
the production function of bulk bags when the layoff oc-
curred. Not only that, but the alleged object of Respondent’s
discriminatory ire, within a few months, had average earn-
ings equal, or superior, to that which they enjoyed prior to
the alleged discriminatory consolidation and transfer of half-
bag production. The shifting of jobs became necessary with
the transfer of half-bag production to Texas Street.
Also General Counsel’s ‘‘unnecessary layoff,’’ most im-
portantly, did not affect the alleged object of Respondent’s
discriminatory ire; rather it affected employees, named in
paragraph 14 of the complaint, who were not associated
(under the pleadings of proof herein) with any union activity
whatsoever. Their union sentiments, of course, were un-
known on this record and it might well be that most, or all,
them could have been among the 25 unit employees who
voted against the Union (Tr. 1116). Under these cir-
cumstances, I do not regard the shifting of jobs and the lay-
offs of employees whose union sentiments are unknown, in
the presence of a rather benign effect upon the employees
against whom Respondent was allegedly discriminating, to be
a convincing argument in favor of an unlawful, discrimina-
tory motive.
(5) Respondent deprived the Union’s leading adherents at
Arlington of work in which they had acquired considerable
experience and with which they were familiar.
1035LANGSTON COS.
7 The balance of General Counsel’s arguments with regard to Respondent’s
discriminatory transfer of half-bag operations actually relate to circumstances
surrounding the alleged violation of Sec. 8(a)(5) of the Act and do not bear
on a violation of Sec. 8(a)(3) which, as General Counsel alleges, requires dis-
criminatory motivation. In addition, there is no evidence that the transfer was
due to union animus generally, regardless of a possible punitive interest re-
garding the half-bag department.
This is entirely true under the record herein. Such conduct
does not, however, constitute conduct prohibited by the Act
nor, in view of the discussion, constitute conduct on which
an inference of discriminatory motive might reasonably be
drawn.
(6) Respondent precipitously, following selection of the
Union by Arlington employees, shifted the work without cost
comparisons between performance at Arlington and perform-
ance at Texas Street.
General Counsel’s use of the word precipitously raises the
issue of ‘‘timing’’ as an element in determining discrimina-
tory motive. This is clearly a reasonable position since ad-
verse employer action immediately following the acquisition
of knowledge of employee union activity often demonstrates,
sometimes in conjunction with animus and other factors, a
retaliatory motive based on the employees’ union activity.
The problem in this case however, is that Respondent,
whatever its clear union animus, did not embark on a pre-
cipitous course of action, retaliating against the Union, based
upon the transfer of unit work. Rather, the uncontradicted
evidence is that as late as December 1987, when Respondent
had already decided to seasonally cease half-bag production
at Arlington, Respondent told the Union that it intended to
resume half-bag production in Arlington in March. There is
no suggestion that Scruggs’ statement to the Union in that
collective-bargaining session was a subterfuge, nor is there
any other evidence that Respondent, as late as the end of
1987, had envisioned the transfer of unit work to Texas
Street. Therefore General Counsel’s argument that Respond-
ent precipitously shifted the work is factually unproven be-
cause the shift of work did not occur ‘‘precipitously’’ follow-
ing their selection of the union, as General Counsel’s argu-
ment runs (G.C. Br. p. 32), but was precipitous upon the oc-
currence of other events. Whether the results of the National
Cotton Council meeting of March 2 were a genuine basis for
Respondent’s decision to consolidate half-bag production at
Texas Street or provided a convenient pretext is another mat-
ter. But that is not what General Counsel’s argument in para-
graph 6 suggests. In short, General Counsel’s argument that
there was a precipitous shifting of half-bag production ‘‘fol-
lowing selection of the union by Arlington employees’’ is
factually unsupported.
(7) Respondent failed to advance a substantial business
justification for altering a production system and product sys-
tem that it had utilized for 2 years.
There is no question that Respondent accepted the incon-
venience of split-site half-bag production from June 1986,
through early January 1988, when it ceased half-bag produc-
tion at Arlington. On the other hand, as above noted, there
was no indication prior to March l988, that Respondent, in
any way coincidental with union activity decided to cease
half-bag production at Arlington. General Counsel does not
argue that the results of the National Cotton Council meeting
of March 2, or Respondent’s other arguments are untrue.
Thus there is no contradiction of Respondent’s testimony that
it had open sewing capacity at Texas Street or that further
uncontradicted testimony that this resulted from a lessening
in demand for both spiral bags and compartmented textile
bags at Texas Street. Nor has General Counsel advanced evi-
dence to rebut Respondent’s assertion that greater overall ef-
ficiency resulted from producing these materials under one
roof; that there was less damage in handling, and less cost
in shipping. Furthermore, all cotton container materials and
products, according to the uncontradicted evidence would
now be produced under one roof.
This is not to say that here, as in the case of Teamer and
Nabors, above (where only two employees out of 60 were
denied overtime work and it was merely coincidental that
they were the initial organizers of the union), one must not
greet Respondent’s arguments with skepticism. An awkward
and expensive system with which Respondent was satisfied
for almost a 2-year period became sufficiently unsatisfactory
to transfer the work to another plant—where the otherwise
satisfactory, 2-year work was performed under unionized
conditions and the transfer work was not. Yet there was an
8-year history of frequent, almost constant, transfer among
Respondent’s plants of this half-bag work; and the reasons
advanced, contrary to General Counsel’s argument, are not
insubstantial.
I would conclude in short, that General Counsel, based
upon Respondent’s expressions of animus alone, together
with the other conclusions advanced by General Counsel,
may well have proved a prima facie case. But, similar to the
case of General Counsel’s allegations with regard to Re-
spondent’s failure to grant overtime work on October 10,
1987, to Nabors and Teamer, I conclude that General Coun-
sel’s prima facie case, was effectively rebutted by Respond-
ent’s proof: that the alleged objects of Respondent s discrimi-
natory conduct, the eight employees in the Arlington half-bag
operation, received higher pay rates and worked under better
working conditions after the transfer of half-bag operations
from Arlington; that they worked in bulk-bag operations after
the layoff without loss of any pay or any demonstration of
adverse effects from the layoff; that the transfer of half-bag
operations, per se, had no substantial effect on their wages,
hours, or working conditions except to the extent that they
benefited from the layoff in those regards, rather than suf-
fered any detriment from them. The transfer of half-bag op-
erations to Texas Street was accompanied by proof of sub-
stantial business justification in terms of transportation and
handling costs, administrative convenience, the existence of
open production capacity in Texas Street, prognostications of
future market conditions for half bags and other cotton con-
tainers, all against a background of frequent intercity transfer
of half-bag production over an 8-year period.
In short, I conclude both that Respondent rebutted the ex-
istence of a prima facie case, NKC of America, supra, and
proved, regardless of the existence of a prima facie case that,
in any event, NLRB v. Transportation Management Corp.,
462 U.S. at 400–401, supra, it would have transferred the
half-bag operations in March 1988, to the Texas Street plant
notwithstanding the selection of the Union as the collective-
bargaining representative of the Arlington Street employees
in the preceding November, 1987.7
Whether or not Respondent may have felt little remorse in
the transfer, the employees’ unionization, I believe, was not
a fact in the decision. See Lignotock Corp., 298 NLRB 209
1036 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
fn. 2 (1990). Further evidence in support of this conclusion
is that when the necessity unexpectedly appeared for further
half-bag production in September 1988, Respondent imme-
diately reopened production at Arlington.
3. Respondent’s refusal to bargain over the decision to
transfer half-bag operations alleged as a violation of
Section 8(a)(1) and (5) of the Act
On December 31, 1987, during a collective-bargaining ses-
sion in which the parties discussed the seasonal shutdown of
the Arlington half-bag department and the layoff of half-bag
department employees, Respondent told the Union that it
would resume half-bag production at Arlington in March or
April of 1988. Further, as above noted, the half-bag employ-
ees were then laid off with the cessation of half-bag produc-
tion, exercised plantwide seniority, and bumped into jobs in
Arlington’s bulk-bag departhent. This bumping resulted in
the layoff of less senior bulk-bag production employees and
was the subject of inconclusive negotiations in the winter of
1987, and the early spring of 1988.
On March 24, 1988, again as above noted, Respondent no-
tified the Union that it had decided to produce half bags in
the 1988 cotton season at the Texas Street facility. This
would result, Respondent said, in cost savings because the
product would be manufactured at the point where it is con-
solidated and shipped and that there were other cost and effi-
ciency considerations weighing in favor of producing half
bags at Texas Street. In particular, however, Respondent in-
formed the Union that labor costs were not a factor in the
decision to relocate the half-bag production and that savings
would result from business factors ‘‘over which the union
has no control’’ (G.C. Exh. 2(N)).
Thereafter, in April 1988, four Texas Street employees
were assigned half-bag production. They could not make the
750-bag per 8-hour shift production standard notwithstanding
that they worked these functions for 8 weeks.
In working on the half bags, the Texas Street employees
utilized the same type of equipment as that used in Arlington
to make half bags; there was no purchase of new equipment
or outlay of capital expenditures or change or modification
in the finished product. The same bottoms and barrels were
sewn on sewing machines of the same nature as that in Ar-
lington, and the same sewing of the two pieces occurred in
Texas Street as it had in Arlington as well as folding and
baling operations. On the other hand, the rates of pay at
Texas Street far exceeded those of the half-bag sewers at Ar-
lington (i.e., Odessa Thompson at Texas Street earned $6.05
per hour making half bags after the relocation; the highest
paid Arlington half-bag employees, Benson and Harwell,
earned $4.96 and $5.04, respectively as half-bag production
employees (R. Exh. 41).
General Counsel notes that Respondent made no cost com-
parison concerning savings at the two locations prior to the
date of the decision (Tr. 485); and observes that Respond-
ent’s answer admits that it transferred the half-bag produc-
tion from a union to a nonunion facility without affording the
Union an opportunity to bargain over the decision to transfer
such work (compare G.C. Exh. 1(W), third consolidated
complaint, par. 15(A), with Respondent’s answer, G.C. Exh.
1(bb), par. 15).
Respondent’s position, inter alia, is that since the decision
did not turn on labor costs, the decision to relocate the half-
bag production was not a mandatory subject of bargaining
and therefore could be effectuated without notification to, or
bargaining in good faith to impasse with, the Union.
In support of this position, Respondent points to the sev-
eral historical switches of half-bag production over the years
in Respondent’s various plants since 1981, when all half-bag
production had been centered at the Texas Street facility.
Further, it cites the fact that of the 10 manufacturing steps
required at Arlington, starting with the receipt of rolls of
polypropylene from suppliers at Texas Street (with reship-
ment to Arlington and ending with warehousing of finished
bales of half-bags, again, at Texas Street, only 5 such pro-
duction steps were required where production occurred at
Texas Street.
Moreover, Respondent notes that it would save money on
any drop-shipment costs where any materials were drop-
shipped from South Carolina and Georgia polypropylene sup-
pliers at the Arlington plant on the way to the Texas Street
plant; and would further save transportation costs involved in
the trucking of materials from the Texas Street plant to the
Arlington plant. Respondent also points out that the printing
(of the material manufacturer’s name and Responent’s name)
on the finished bag was performed only at Texas Street and
that there was no such printer at Arlington. A new printer
would cost approximately $7000, and Respondent avoided
that capital cost consolidating half-bag production at Texas
Street. In addition, half bags as well as bulk bags are cut on
the Weist machine. Although there are Weist machines at
both Arlington and Texas Street (the Weist machine costs ap-
proximately $27,000), bulk-bag production at Arlington had
increased so significantly that the Weist machine at Arling-
ton was often fully utilized solely for the cutting of bulk
bags. The Weist machine at Texas Street, on the other hand,
was not fully utilized because of the diminution in demand
for Texas Street-produced spiral bags and half bags. Thus the
Texas Street Weist machine had open production time
whereas the Arlington Weist machine did not. Respondent
further points out that with the consolidation and relocation
of half-bag production, all cotton packaging products could
be produced at Texas Street.
Lastly, Respondent notes that while it expected to resume
half-bag production at Arlington as late as December 31, by
early March 1988, it had in its possession not only the re-
sults of the cotton crop and packaging demand predictions of
the March 2, 1988 meeting of the National Cotton Council
but in view of the need for expeditious decision making, it
had the memos from Vice President George Smith (March 3,
1988) and Don Wiseman (March 8), both recommending
half-bag transfer and production to Texas Street (R. Exh. 15
and 1).
Discussion and Conclusions
To the extent General Counsel argues that production went
from a unionized unit to a nonunionized unit and from expe-
rienced personnel to inexperienced personnel and from per-
sonnel who were able to make incentive production stand-
ards, to those who, after an 8-week period, were unable to
make production standards, these arguments are essentially
those in favor of a finding of discriminatory motivation. This
element has been dealt with above. Given the existence of
Respondent’s union animus, I have examined Respondent’s
proof with some skepticism. However, I have found that
1037LANGSTON COS.
General Counsel has failed to prove, by a preponderance of
the credible evidence, that Respondent was possessed of such
discriminatory and unlawful motive in the relocation of half-
bag production to Texas Street.
General Counsel accurately observes, on the other hand,
that the half-bag work at Texas Street as in Arlington, uti-
lized the same equipment (sewing machines, cutting ma-
chines, and a baler); required no new purchase of equipment,
no outlay of capital expenditures; of change or modification
in the finished product. Indeed, the employees worked on the
same types of sewing machines which had been utilized at
Arlington. They used the same sewing process on the same
materials and turned out the same half bag. In addition, the
manufacturing operation using sewing ‘‘folders’’ was essen-
tially the same as using sewing ‘‘helpers’’ at Arlington.
While General Counsel concedes that the rates of pay to the
employees at Texas Street exceeded those at Arlington, Gen-
eral Counsel observes that such higher Texas Street pay rates
were predicated on production rates of Texas Street employ-
ees working on bags different from half bags (G.C. Br. p.
9). Such an argument, of course, tends to work in favor of
Respondent’s position: that labor costs were not a consider-
ation in the decision to relocate the work to Texas Street
since the relocation was made to Texas Street regardless of
the inexperience of Texas Street employees, regardless of the
higher pay rate, and regardless of the basis on which the
rates had been established. Thus, Respondent’s willingness to
pay higher wage rates demonstrates an indifference to the
level of labor cost rather having labor cost play a predomi-
nant roll in the decision to relocate to Texas Street.
More telling is General Counsel’s argument that the split
production site had been in effect since the initiation of Ar-
lington half-bag production in the spring of 1986. Thus the
costs of transportation from suppliers and the costs of
interplant transportation as well as the damage to goods and
other inconveniences had been in effect for a year-and-a-half
prior to the decision to relocate half-bag production. In addi-
tion, Respondent’s argument in favor of the need for speed
in the decision to consolidate production without notifying or
bargaining with the Union is unconvincing. If Respondent
was, indeed, indifferent to labor cost, and was faced with a
need for a speedy initiation of spring production to meet the
need for cotton packaging in the period April-November,
1988, it might well have left the production process in situ
rather than shift prodution into inexperienced and untrained
hands, which production showed itself to be a failure in the
ensuing 8 weeks of using the new, higher paid sewers and
helpers at Texas Street.
What actually precipitated the decision, according to Re-
spondent, was newly excess production capacity at Texas
Street, the declining use of half bags in general (lower use
estimates), and the excessive trucking and handling of the
product between Texas Street and Arlington (R. Br. p. 1). In
addition, Respondent argues that to maintain half-bag pro-
duction at Arlington would require manual cutting of half
bags because the Arlington Weist machine was of fully uti-
lized. The alternative was to hand-cut the half bags (an im-
practical alternative) or to invest in a further Weist machine
at Arlington at a cost of $27,000. Lastly, as Respondent ar-
gues, it was more convenient to produce half bags at Texas
Street because not only was there the attractiveness of all
cotton packaging under one roof, but there was also only one
available printing machine and that was at Texas Street. This
last argument, it seems to me, is hardly forceful. Split-site
production had been engaged in for 18 months, with the only
printer at Texas Street. This is not an argument in favor of
relocating all production to Texas Street. On the other hand,
Respondent’s production supervisors supported Langston’s
proposal that production be consolidated at Texas Street.
In short, General Counsel argues that the change in loca-
tion of the sewing, folding, and baling functions resulted in
no change in the finished product, required no outlays of
capital, required no change in production equipment, required
no change in the manner of production, and since the product
was the same, was not evidence of a change in the direction
of Respondent’s business.
On the basis of the above findings, however, I conclude
that General Counsel has failed to prove by a preponderance
of the evidence, that labor costs were a significant factor in
the decision to relocate the half-bag operation from Arlington
to Texas Street. The evidence shows that the Texas Street
employees who, after volunteering, were assigned the sub-
stituted work, were paid at the rate of approximately $6 an
hour as opposed to the rate of approximately $5 per hour at
Arlington. Therefore, not only was labor cost saving not
demonstrated to be a factor by extrinsic evidence, but the
evidence shows that the transfer of unit work occurred in
spite of higher labor cost at Texas Street. In addition, while
no savings were shown on manufacturing (‘‘unit costs’’), the
evidence showed diminished interplant transfers; and not-
withstanding that General Counsel characterized the savings
resulting therefrom as ‘‘negligible,’’ the diminution in the
number of interplant transfers themselves, would indicate
some unit cost savings in ultimate manufacturing.
In addition, General Counsel failed to meet Respondent’s
testimony that it had suffered damage to the baleed half-bags
by excessive interplant handling; that it had open production
capacity at Texas Street for whatever reason, including the
expected downturn in demand for half bags and spiral bags
and the diminution in demand for its textile bag production;
and Respondent’s assertion that Weist machine usage at Ar-
lington had reached such proportions that it would require
manual cutting or investment in a further Weist machine if
half-bag cutting was to be continued at Arlington. Although
I was not much impressed with the fact that the only printing
machine was at Texas Street, and that it was valued at about
$7000, it could surely argued that as a matter of convenience
alone, and in spite of the 18 months during which Respond-
ent had faced split-site production, was more convenient to
maintain printing at Texas Street.
While General Counsel failed to prove that labor costs
were a significant factor in the decision to relocate; and
while Respondent demonstrated the existence of other factors
(excessive handling, manufacturing convenience, decrease in
transportation, open production capacity) over which the
union had no control, Respondent did not show a change in
the nature or direction of Respondent’s business or items
such as technological innovation requiring the change, the
creation of a new product, or the loss of some important cus-
tomer which required product relocation.
In short, with regard to Respondent’s arguments, I have al-
ready noted that General Counsel has failed to prove, by a
preponderance of the evidence, that labor costs constituted a
significant factor in Respondent’s decision to relocate half-
1038 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 General Counsel does not allege a violation from the failure of Respondent
to offer to engage in ‘‘effects bargaining’’ over the relocation of half-bag pro-
duction to Texas Street. In the absence of such an allegation, no violation over
bag production. On the other hand, I am not impressed by
Respondent’s arguments of time being of the essence since
it could have permitted the production situs to remain in Ar-
lington if time was truly of the essence; and I am not im-
pressed with Respondent’s overall arguments of avoidance of
injury to baleed half bags and the savings (actually
unproven) to be garnered by having single-site production
because there would be no interplant trucking costs and drop
charges. These latter arguments pale because those cir-
cumstances were in existence for 18 months and if those
cost-cutting circumstances were important, much less disposi-
tive, in Respondent’s evaluation of eliminating split-site pro-
duction, such considerations would have come into play long
before the 18 months during which half-bag production re-
mained in Arlington. On the other side of Respondent’s ledg-
er, however, stands the undisputed evidence of the results of
the National Cotton Council’s predictions of half-bag de-
mand; the diminution of textile-bag and spiral-bag produc-
tion, Texas Street; anticipated production capacity at Texas
Street; and the increased utilization of Weis cutting machine
capacity at Arlington due to greater bulk-bag production.
The legal issue presented is whether under the above cir-
cumstances, Respondent’s decision to relocate half-bag pro-
duction to Texas Street was a mandatory subject of bargain-
ing. A subsidiary statement of the legal issue is: (1) whether
General Counsel’s faiure to prove that labor costs were a sig-
nificant element in the decision to relocate per se is sufficient
to conclude, as a matter of law, that the relocation decision
was not a mandatory subject of bargaining; of (2) whether,
in conjunction with General Counsel’s failure to prove that
labor costs constituted a significant factor in the decision to
relocate, Respondent’s manufacturing convenience, together
with some showing of an avoidance of capital outlay and a
showing of manufacturing and operational desirability (rang-
ing from open manufacturing capacity at Texas Street to the
logistical preference of all cotton packaging under one roof),
in the alternative, is sufficient to eliminate the conclusion
that the decision constituted a manditory subject of bargain-
ing.
In support of his conclusion that the decision to relocate
half-bag production constituted a mandatory subject of bar-
gaining, General Counsel cites only Pertec Computer, 284
NLRB 810 (1987). In that case, the Board found that the em-
ployer’s refusal to bargain on a decision to relocate its oper-
ation constituted a violation of Section 8(a)(5) and (1) of the
Act because the decision to relocate was found to be a man-
datory subject of bargaining. General Counsel’s extensive
quotation from the case, however, omits the Board’s state-
ment that: ‘‘The primacy of labor cost in the decision to shift
work out of the plant is not seriously disputed.’’ Ibid. On
such a Board statement, General Counsel’s citation of this
case as support is wholly misplaced for, in the instant case,
I have concluded, that the General Counsel has failed to
prove that labor costs were a significant factor in the deci-
sion to relocate.
Fibreboard Corp. v. NLRB, 379 U.S. 203, 213 (1964), is
instructive perhaps only on the basis of facts distinguishing
it from the instant case. There, the subcontracting of unit
maintenance work was held a mandatory subject of bargain-
ing under Section 8(d) but labor costs were apparently at the
heart of the decision (379 U.S. at 206–207). In the instant
case, however, there is not even a ‘‘contracting out’’ of the
work; Respondent’s own, nonunion employees are doing the
same work. On the other hand, unlike Fibreboard, the work
is not being done in the same plant; the whole object is to
relocate to an under utilized production facility where truck-
ing costs, handling problems, and other nonlabor cost items
would offset the higher direct labor costs the nonunionized
wages at the relocated plant. A relocation decision to replace
antiquated machinery was held not to be a mandatory subject
of bargaining notwithstanding thc employer’s history of a de-
sire to reduce labor costs, Inland Steel Container Co., 275
NLRB 929, 935–936 fn. 15, 937 (1985). Finally, in Otis Ele-
vator II, 269 NLRB 891 (1984), the Board excludes from
mandatory subjects (Otis Elevator II, supra at 3 fn. 5) ‘‘[De-
cisions] . . . to restructure or to consolidate operations
. . . .’’ Apparently such a conclusion meets the standard of
‘‘a change in the nature or direction of the business.’’ Otis
Elevator II, at 89l–892. Whatever else Respondent’s reloca-
tion and consolidation of half-bag operations at Texas Street
constituted, it certainly resulted from a decision to ‘‘consoli-
date’’ operations within the above controlling Board rule.
In the absence of controlling Board authority to the con-
trary, and taking the above factors into account, I conclude
that General Counsel’s failure to prove that labor costs were
a factor in Respondent’s decision to relocate half-bag produc-
tion from the unionized plant to the nonunionized plant,
alone, disposes of the question of whether Respondent ’s de-
cision was a mandatory subject of bargaining under Otis Ele-
vator II, supra, and its progeny.
The Board’s gloss on Otis Elevator II, supra, continues to
show the requirement that a mandatory subject include the
object of reducing labor costs. Thus in Lapeer Foundry &
Machine, 289 NLRB 952 (1988), a layoff of unit employees
resulting from a lack of orders was determined to be a man-
datory subject of bargaining since the Respondent’s decision
was not to change the nature or scope of the business. It was
held, rather, to constitute a change in terms of employment
in order to reduce labor costs ‘‘during a period of economic
difficulty.’’ In WXON-TV, 289 NLRB 615 (1988), the Board
held that the decision to eliminate the production department
from a television broadcast operation was not a mandatory
subject of bargaining. In that case, in citing Otis Elevator,
the Board held that an employer’s decisions which affect the
basic direction or nature of the business are excluded from
the mandatory bargaining subjects described in Section 8(d).
In the next sentence, however, the Board goes on to say that
the critical factor in the Board plurality in Otis Elevator, is
whether the decision turns upon a change in the nature or di-
rection of the business of turns upon labor costs. In Inland
Steel Container Co., supra, enfd. sub nom. Steelworkers
Local 2179 v. NLRB, 822 F.2d 559 (5th Cir. 1987), the cir-
cuit court found that the administrative law judge’s conclu-
sion that the decision to relocate ‘‘did not turn upon labor
cost’’ was dispositive.
Under all the above circumstances, I conclude that Re-
spondent’s decision to relocate half-bag production from the
unionized Arlington to the unionized Texas Street facility
was not a mandatory subject of bargaining. I therefore rec-
ommend that the allegation of violation of Section 8(a)(1)
and (5) of the Act be dismissed.8
1039LANGSTON COS.
the failure to bargain on ‘‘effects’’ may be predicated, WXON-TV, supra. In
any event, Respondent consistently offered to bargain on effects of the deci-
sion.
4. Respondent’s alleged violation of Section 8(a)(1) and
(5) of the Act in its refusal of the Union’s request, to
furnish information necessary to bargain over the
decision to transfer unit work
It is undisputed that on March 24, 1988, Respondent, with-
out prior notification or bargaining, notified the Union of its
decision to produce half bags in 1988 at the Texas Street fa-
cility (G.C. Exh. 2(n)).
On April 11, the Union stated that, in order to effectively
represent its members and protect their jobs, it was request-
ing that Respondent immediately provide the Union with 18
items of information regarding the transfer of half- bag pro-
duction from Arlington to Texas Street (G.C. Exh. 2(o)).
On May 23, 1988, Respondent answered the Union’s re-
quest (G.C. Exh. 2(p)), by giving some information, refusing
to give other information on the ground of irrelevancy to
‘‘any mandatory subject of bargaining,’’ burdensomeness,
and on the ground that Respondent was asking for informa-
tion regarding the Respondent’s decision to relocate. After
stating that it considered the issue of the decision to relocate
to be irrelevant, Respondent nevertheless supplied the union
with reasons for the decision to relocate half-bag production
to Texas Street. Lastly, it failed and refused to provide cer-
tain information on the ground that it was not in its posses-
sion at the time.
By virtue of paragraphs 16, 17, and 18 of the third con-
solidated complaint, General Counsel alleges violation of
Section 8(a)(1) and (5) of the Act in Respondent’s failure to
provide the Union with the 18 elements of information be-
cause the requested information was relevant to the Union’s
performance of its function as the exclusive collective-bar-
gaining representative with regard to Respondent’s decision
to transfer unit work. In view of the disposition above that
the decision to relocate half-bag production to Texas Street
was neither discriminatorily motivated (and unlawful within
the meaning of Section 8(a)(1) and (3) of the Act) nor a
mandatory subject of bargaining within the meaning of Sec-
tion 8(d) of the Act and therefore Respondent’s failure to
bargain thereon wa not a violation of Section 8(a)(1) and (5)
of the Act, I conclude that the requested information was not
relevant to the execution of the Union’s duty as statutory col-
lective-bargaining representative. Nor has General Counsel
shown why the information is otherwise relevant. NLRB v.
Rockwell Standard Co., 410 F.2d 953, 957 (6th Cir. 1969).
To the extent, therefore the General Counsel alleges that
Respondent was obliged to supply information relating to the
‘‘decision’’ to relocate, I recommend that the allegations in
Paragraphs 16 and 18 of the third consolidated complaint be
dismissed.
5. Alleged violation of Section 8(a)(1) and (5) of the
Act by Respondent’s delay in furnishing the Union with
requested information regarding Respondent’s existing
incentive system; and its failure to furnish the Union
with requested timestudies utilized in establishing
Respondent’s existing incentive system (third
consolidated complaint, pars. 19, 20, and 21)
As above noted, on December 7, 1987, having received
the Regional Director’s December 3, 1987 certification of the
Union as collective-bargaining representative, Respondent
notified the Union that it was recognizing the Union and
would bargain with it in the production and maintenance
unit. Respondent said that it stood ready to commence nego-
tiations at a mutually convenient date and place and assumed
that ‘‘you will first request certain data concerning the bar-
gaining unit so that you might better prepare for negotia-
tions.’’ (G.C. Exh. 2(B).)
On December 10, 1987, the Union suggested dates for the
commencement of bargaining (January 7 and 12) and re-
quested, in paragraphs, various information from Respondent,
including, with regard to wages, ‘‘copies of all production
quotas by departments and styles, and copies of formulas,
time studies, etc., used in determining each production
quota.’’ (G.C. Exh. 2(A).)
In fact, however, the parties had met in collective bargain-
ing as early as December 31, 1987, and again on January 15,
1988. At the latter session, Respondent furnished the Union
with a list of categories of employees employed in both bulk
bag and half-bag production together with their wage rates
(G.C. Exh. 3(A)), many of which were incentive rates for
production in addition to the underlying hourly rates. It also
provided the Union, pursuant to the union’s December 10 re-
quest, 31 pages of documents (G.C. Exh. 3(D)). These docu-
ments broke down various incentive rated jobs into oper-
ations. These ‘‘operations,’’ on the face of the documents,
were further broken down into ‘‘elements’’ of each particu-
larized cutting and sewing ‘‘operation.’’ Next to each ele-
ment there appears a fractional part of a minute required for
the execution of each job element as part of the overall oper-
ation. At the bottom of each page, there appeared the total
time required for execution of the various operational ele-
ments required for each ‘‘operation.’’ The documents cov-
ered various cutting, sewing, and inspection activity in half-
bag and bulk bag production.
Lowell Daily, secretary-treasurer, Furniture Workers Divi-
sion, I.U.E., parent of Charging Party Local 282, for more
than 28 years was involved in negotiations and arbitrations
concerning the basis of wages and wage rates: stop watch
studies, motion systems, and the use ‘‘standard data’’ (pro-
duction quotas). Daily first became involved in bargaining
with Respondent in late June 1988, when the president of the
Furniture Workers Division, I.U.E., received a call from
Local 282 President Willie Rudd saying that he had a time-
study system that he could not understand. Rudd asked the
division president (Scarborough) to ‘‘send him someone
who’d handle it’’ and suggested sending Daily (Tr. 544).
Daily then met with the Local, reviewed the material that
1040 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Daily’s testimony whether the materials were audit sheets or timestudies
or both was unclear.
10 Respondent’s original wage offer was made on March 22, 1988, a revised
offer on April 1, 1988, and a ‘‘final offer’’ on July 22, 1988.
Respondent had provided, including as will hereafter be seen,
Respondent’s offer on wages of March 22, 1988, and decided
that there were a number of questions that he had with re-
gard to the material provided.9 Together with Local Union
President Willie Rudd, he then prepared a letter to Respond-
ent over Rudd’s signature (G.C. Exh. 3(i)). The Union re-
quested 16 items including (1) the master data for each ele-
ment including all the timestudies or any other data from
which the standard time for each numbered element was de-
rived and each element and number; (2) the formulas, proc-
esses, or equations used to determine the standard time for
each numbered element and used to determine the moneys
paid for extra units of production; (3) the data used to
change the standard for each job; (4) the formula used to cal-
culate wages from the above data; (5) any motion pattern
standard data or stopwatch studies used to support this data;
(6) the existence of any allowance for fatigue, unavoidable
delay, or personal time and how such allowances applied; (7)
whether Respondent paid for breaks or washup periods and
whether this was reflected in the data; (8) the time required
for the employee to get raw materials and remove finished
goods which times are not shown in the element descrip-
tions; (9) whether the standard time for each element was
based on stopwatch studies or standard data; (10) it appeared
that certain standards which appeared in documents supplied
by Respondent did not appear in Respondent’s proposed
standard sheets and the Union wanted to known the status of
that data and whether there had been any transfer of work
to other company plants, etc.
Respondent received the Union’s June 29 letter on July 5
an made internal inquiry in order to respond to the 16 para-
graphs (most which are set forth above) requesting informa-
tion of Respondent. Respondent’s reply (G.C. Exh. 3(J)) of
July 11 contains 16 numbered paragraphs.
As a first matter, Respondent wrote that: ‘‘available addi-
tional worksheets involved in the original timestudies will be
provided.’’ In subsequent numbered paragraphs, Respondent
appeared to answer the Union’s numbered paragraphs. With
respect to (2) above, it appeared to describe how it computed
the ‘‘job standard’’ and observed that the computations of
job standards had already been provided in the materials fur-
nished on January 15. With regard to the formula for com-
puting the moneys for extra units, that information was pro-
vided. (4) Respondent stated that it used actual production
records to support the revised job standards in its March 22
wage offer.10
With regard to other items, Respondent described the com-
putation of the monthly wage adjustment for incentive rates
and observed, inter alia, that the original standards for the
existing incentive wage rates were ‘‘established from stop-
watch studies using sound industrial engineering practices.’’
In addition, where Respondent was unsure as to exactly what
the Union wanted, it asked for further information and stated
that it would respond.
On July 22, 1988, Respondent submitted to the Union its
‘‘final contract proposals’’ which, with regard to production
standards, reoffered the production standards set forth in its
March 22 and April 1 wage proposals.
As General Counsel notes, George Smith, Respondent’s
supervisor who created the Respondent’s present wage offers,
did not testify. Respondent’s chief negotiator, Attorney John
Scruggs, testified that Smith had used daily production re-
ports submitted by unit employees (i.e., actual production
statistics) as the basis of Respondent’s present incentive
wage offers rather than time motion studies (which had
formed the basis of incentive wage rates commencing in
1985). When Scruggs presented the Respondent’s ‘‘final con-
tract proposals’’ on July 22, he told the Union that Respond-
ent would make no further proposals or concessions but was
present, on July 22, to answer the Union’s questions about
Respondent’s final contract proposal so that the Union might
understand and evaluate it. Scruggs admitted (Tr. 202) that
in order for an agreement to be reached on wage rates, the
Union would have to accept Respondent’s proposed produc-
tion standards (Tr. 202).
At the July 22 collective-bargaining session, the first meet-
ing at which Lowell Daily was present, the Respondent’s
wage and production standards were discussed and the
Union, citing Respondent’s July 11 letter (‘‘available addi-
tional worksheets involved in the original timestudies will be
provided’’) told Respondent that the Union didn’t have the
information which Respondent said it would provide and the
Union asked again for the information. Scruggs told the
Union that he did not have any further information; that he
had already given the Union what information he had. He
said, however, that he might be willing to look again for
other documents (Tr. 550–551). Scruggs’ willingness to look
for further documents apparently stemmed from Daily show-
ing him a blank form (G.C. Exh. 7) and telling him that any
document consistent with or containing the type of informa-
tion appearing on that form would be acceptable (Tr. 552).
Meanwhile, the Union questioned Scruggs at the July 22
meeting, on some of his answers provided, above, in his let-
ter of July 11 (G.C. Exh. 3(J)). In particular, the Union
pointed to Respondent’s answer concerning the derivation of
the original standards in Respondent’s existing incentive
rates, where Respondent had answered, in its July 11 letter,
that they were established from stopwatch studies ‘‘using
sound industrial engineering practices.’’ As Daily testified,
the timestudies themselves were needed in order to deter-
mine, inter alia, how the incentive rates that existed in Re-
spondent’s plant compared to Respondent’s contract offers;
to determine whether the timestudies themselves were accu-
rate (‘‘legitimate’’); and to determine whether the incentive
rates should be changed in whole or in part. Consistent with
the Union’s demand for the timestudies, it requested, as part
of the contract, that job standards would be based on ‘‘sound
industrial engineering practices.’’ Scruggs refused. With re-
gard to some of the questions asked by the Union, Respond-
ent, through Scruggs and its personnel director, did not un-
derstand the questions (Tr. 553–554).
The meeting concluded with Daily asking to meet with
George Smith and for the Union to be able to go to the plant
and check some of the rates which had been provided in doc-
uments from Respondent.
On August 16, 1988, the Union, including Daily, visited
the plant. However they met only Scruggs who told them
that Smith was not available (Tr. 55). Scruggs and Daily,
nevertheless, checked the number of jobs and thereafter
Scruggs, Leachman, and Daily, together with an employee
1041LANGSTON COS.
11 The General Counsel concedes that Respondent’s 1988 offer on produc-
tion standards is not unlawful (Tr. 231).
from the bargaining unit, asked Scruggs some timestudy
questions. Scruggs refused to answer (Tr. 557) any timestudy
questions on the ground that he was not a timestudy man.
When the Union asked him if he had the timestudy docu-
ments, Scruggs said that he did not but said that the Union
would get it (Tr. 557).
Although there were a couple of other meetings, Daily
could recall what occurred at the August 29 collective-bar-
gaining session. At the August 29 meeting, Daily told
Scruggs that he still didn’t have the timestudies and had only
the materials furnished in January (G.C. Exh. 3(D)). At that
meeting, on August 29, however, Respondent furnished at
least part of the promised timestudy and job description ma-
terials (Tr. 560).
There is a dispute as to when, during this August 29 meet-
ings Respondent furnished the materials. Although the parties
agree that the meeting started about 5 p.m., and that the ma-
terials were given by Scruggs to Daily about 7 or 7:30 p.m.,
the parties are in dispute as to whether the documents were
given during a recess and whether collective bargaining con-
tinued thereafter past 9 p.m. (according to Scruggs, Tr. 221–
222) or whether Scruggs gave the documents to Daily and
that the meeting concluded immediately with that event (ac-
cording to the Union).
At both the July 22 and August 29 meetings, Daily told
Respondent that Smith’s proposed incentive pay rate was not
only less reliable than the timestudy method on which Re-
spondent’s existing incentive rates were based, but would ef-
fectively constitute a cut in pay for some employees. As to
them, they would have to work harder in order to enjoy the
same pay or, alternatively, if they worked at the same pace,
they would receive less pay.
Scruggs testified that the job data sheets provided to the
Union on August 29 were ultimately found by George Smith
on the very day of the August 29 collective-bargaining ses-
sion and that they were delivered to Scruggs at a time when
he did not have an opportunity to inspect them. He handed
them over to Daily, he testified, without a thorough inspec-
tion about 7:30 during a recess and that the Union itself did
not have an opportunity to study the sheets prior to the end
of the meeting. Scruggs testified that one of the problems
with the delivery of these job data sheets was that the Union
had asked for Respondent’s ‘‘Master Data Element Books’’
on June 21 (Tr. 228) as backup sheets on the time motion
studies. George Smith told Scruggs that Respondent did not
have any master data element books. Scruggs testified that
at the July 22 meeting, the Union then asked for ‘‘Standard
Data Element Books.’’ Scruggs said that he informed Smith
of this change and that on August 29 Smith came up with
the job element sheets which were delivered to the Union
during the collective-bargaining session. Scruggs concedes
that it took Smith roughly a month to come up with the data
(Tr. 229).
In the meantime, however, when Daily had requested the
Standard Data Book at the meeting on July 22, Respondent
answered, in writing, on July 27 (G.C. Exh. 3(L)). Respond-
ent failed to state that such a book or such data did not exist;
rather, Scruggs questioned the relevancy of the request on
the ground that
it is not the original job standards that are at issue in
these negotiations—the issue is the Company’s pro-
posed standards. And the Company’s proposed stand-
ards were not derived from the previous standards, nor
are they revisions of the prior standards. The Compa-
ny’s proposed standards were derived from an analysis
of the actual production history at the Arlington plant.
We have furnished you with the actual production sta-
tistics that were used as the basis for formulation of the
company’s proposed standards. The old job studies ini-
tially done at the Arlington plant were not considered
in any way in the formulation of the proposed stand-
ards.11
Respondent again raised the question of relevancy at the
August 29 collective-bargaining session at which it was rep-
resented not only by Scruggs and Personnel Manager Ron
Wargo, but for the first time by Vice President George
Smith. When the documents were given to the Union, the
Union could not reproduce them because its copying ma-
chine had broken and the Union did not return the sheets to
Respondent. At the end of the August 29 meeting, there was
no agreement or discussion concerning a further meeting or
the issues separating the parties.
On August 31, 1988, the Union filed a charge alleging
violation of Section 8(a)(1), (3), and (5) of the Act asserting
Respondent engaged in bad-faith and surface bargaining, and
failing to furnish relevant information and other acts of un-
lawful conduct. The charge was served on or about Septem-
ber 1 with a first amended charge filed and served on Octo-
ber 27 and 28, respectively; and the Regional Director issued
a consolidated complaint alleging, inter alia, the failure to
provide information and a failure to bargain in good faith,
etc. on October 28, 1988 (G.C. Exh. 1(j)).
On September 6, 1988, Respondent replied to a union let-
ter of August 31 in which the Union accused Respondent of
bad-faith bargaining. Respondent characterized the Union’s
letter as containing numerous erroneous assertions and self-
serving statements. Respondent stated in this September 6
letter (G.C. Exh. 3(N)):
As I have said on several occasions since tendering
our final proposals package [on July 22], these are the
Company’s final positions and we have no present in-
tention of making any further concessions. We stand
ready to answer the Union’s questions about our pro-
posals so that you may understand them and make an
informed decision as to the Union’s response. You
mischaracterize our position as a refusal to bargain,
which it is not.
We have bargained in good faith with the Union in
22 sessions since 1987.
Furthermore, Respondent admonished the Union for failing
to have Lowell Daily make further trips to Respondent’s
plant to study the jobs. Respondent states that instead of ex-
ercising this opportunity Daily ‘‘devotes himself exclusively
to dissecting a 3-year-old job study—a study which the
Company has told him time and again was not used as a
basis for its current job standard proposal.’’
Respondent, in addition, admits that it
1042 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 The third consolidated complaint par. 24(b)(2) alleges that ‘‘between Sep-
tember 6, 1988 and November 16, 1988, Respondent violated Sec. 8(a)(1) and
(5) of the Act by failing to meet with the Union at reasonable times.’’ It may
also be noted at a discussion between the parties on September 22, 1988, was
not a contract bargaining session, but was limited only to the notification and
discussion of Respondent’s resuming half-bag production at Arlington in Sep-
tember.
erred when I informed the Union on July 22, that we
did not maintain a copy of the 1985 study’s standard
data sheets. This error was remedied when we located
the standard data forms and supplied copies to the
union [on August 29, 1988]. The Company has consist-
ently objected to the relevancy of these inquiries, but
when Mr. Daily indicated that he wants the information
anyway, we have consistently complied. All the while,
our offers for the union to conduct its own studies con-
tinued to be ignored.
I interpret the final three paragraphs of the August
31 letter as a rejection of the Company’s final proposal
package. Only if we accept the Union’s request to re-
consider our final position are we invited to continue
negotiations. Since the Company has no present inten-
tion of making further concessions from its final pro-
posal package submitted July 22, it appears to me we
are at impasse. If my understanding is correct, there is
no reason for us to meet further until one party or the
other is ready to change its bargaining position. If my
understanding is not correct, please let me know. Other-
wise, the Union is invited to contact me when you are
prepared to accept our final offer.
With the issuance of complaint on October 28, Respondent
‘‘reconsidered its position,’’ struck the word ‘‘Final’’ from
its July 22 ‘‘Final’’ contract proposal, and the parties re-
sumed bargaining on November 16, 1988 (Tr. 245).12 Collec-
tive bargaining continued various issues through the end of
December 1988 and into early 1989, but no overall agree-
ment was reached.
Discussion and Conclusions
With respect to the allegation in paragraph 24(b)(2), that
Respondent refused unlawfully to bargain between Septem-
ber 6 and November 16, 1988, I find that it did unlawfully
refuse to bargain but not on the basis of the refusal to grant
requested information. Rather it is on the ground, as will be
seen hereafter, that the parties did not reach lawful impasse
because of Respondent’s acts of bad-faith bargaining occur-
ring before its September 6 letter in which it claimed the ex-
istence of impasse. Indeed, I find that, as a matter of law,
it is actually unnecessary to pass on the existence of an ‘‘im-
passe’’ since any such impasse was based on acts of bad-
faith bargaining in violation of Section 8(a)(5) and (1) of the
Act. Compare Pillow Corp., 241 NLRB 40 fn. 1, enfd. 615
F.2d 917 (5th Cir. 1980), with Huck Mfg. Co. v. NLRB, 693
F.2d 1176, 1187 fn. 16 (5th Cir. 1982), and NLRB v. Big
Three Industries, 497 F.2d 43 (5th Cir. 1974) (good-faith
bargaining is prerequisite to valid impasse). Thus, Respond-
ent may not defend an allegation of refusal to bargain based
on impasse because its own unfair labor practices precluded
its defense.
With respect to Respondent’s alleged failure to provide in-
formation, General Counsel’s position is that the Respondent
could not lawfully withhold the timestudies used by Re-
spondent in implementing its existing incentive system and,
in addition, could not lawfully delay furnishing the Union
with the master data or timestudy elements. General Counsel
argues that the chronology of events show that Respondent’s
delay in furnishing the timestudy elements and the failure to
provide the actual timestudies frustrated bargaining and dem-
onstrates that no valid impasse had been reached at the time
Scruggs made his declaration of impasse on September 6
(following its July 22 ‘‘last offer’’).
As a preliminary matter, the General Counsel cites the fact
that the Union, at the outset of bargaining, in December
1987, requested the timestudies and ‘‘detailed related infor-
mation.’’ General Counsel urges that this information is
clearly relevant.
Respondent’s defenses, essentially are that (1) the informa-
tion was irrelevant to collective bargaining and therefore Re-
spondent was under no duty to supply it; and (2) in any
event, Respondent supplied the information requested (R. Br.
p. 24).
a. Relevance
With regard to ‘‘relevance,’’ it is clear that Respondent’s
defense on this basis misconceives its bargaining obligation
and the relevance of the requested material. Over and over
again, Respondent argued at the hearing, and again in brief,
that its wage rate offer was not based, in any way, on the
1985 time motion studies and the job descriptions resulting
therefrom; rather, its offer was based on the actual produc-
tion figures, gathered by Vice President George Smith.
Hence, Respondent has continually argued that the Union’s
request for time motion studies constituted an irrelevancy
under the existing bargaining situation. Nothing could be a
clearer statement of Respondent’s position than its letter to
the Union of September 6, 1988, in which it declared im-
passe (G.C. Exh. 3N):
The Union’s industrial engineering specialist has, in our
opinion, devoted an inordinate amount of time to ana-
lyzing the technical aspect of the original time study
done in the plant in 1985—but we advised the Union
20 months ago that our wages and job standard pro-
posal was based upon the actual production at the plant,
not a revision of the original timestudy. . . . [and] Mr.
Daily devotes himself exclusively to dissecting a 3-year
old job study—a study which the Company has told
him time and again was not used in any way as a basis
for its current job standard proposal.
It is quite true that the prior timestudies and associated
materials are not relevant to Respondent’s current offer. But
Respondent’s offer is not the exclusive element of collective
bargaining on wages. Rather, the Union has a right to bar-
gain. It has a right to propound, among other things, that Re-
spondent’s existing wage incentive plan and wage rates re-
main in effect rather than Respondent’s new proposal based
on actual production. While the bargaining, essentially, relat-
ed almost exclusively to Respondent’s wage proposal, this
does not make the Union’s position insignificant or, as Re-
spondent would have it, ‘‘irrelevant.’’ For assuming,
arguendo, that the Union’s request relates to a desire to com-
pare existing methods and bases of compensation with Re-
1043LANGSTON COS.
spondent’s new offer, and assuming, further, that the Union,
as a counteroffer would demand maintenance of the status
quo the requested information is not irrelevant. Thus, even
if the requested information is essentially to support the
Union’s counteroffer rather than to refine Respondent’s offer,
since the information is wholly in Respondent possession, it
should be supplied.
In short, the Union is a statutory partner in terms of the
8(d) aspect of the obligation to bargain in good faith and Re-
spondent cannot, by insisting upon bargaining on its offer,
eliminate the information requests made in good faith by the
Union as ‘‘irrelevant.’’ Thus, to the extent Respondent ar-
gues that the material demanded by the Union is irrelevant,
such an argument misconceives Respondent’s obligation to
its bargaining partner’s ability to perform its duties under the
statute. The time motion studies and other requested mate-
rials are clearly relevant at least to the Union’s assertion that
Respondent’s proposed wage offer, in part, represents a wage
cut from existing rates, an assertion that Respondent does not
deny. The requested information is relevant to the Union’s
ability to bargain for its proposal and against Respondent’s
proposal. NLRB v. Acme Industrial, Inc., 385 U.S. 432, 435–
436 (1967). Detroit Edison Co v. NLRB, 440 U.S. 301, 303
(1979).
b. Stopwatch worksheets
Respondent, in its July 11, 1988 letter (G.C. Exh. 3(J)),
not only notified the Union that ‘‘available additional work
sheets involved in the original timestudies will be provided’’
but appeared to state, at all junctures and bargaining, that the
wage rates were indeed based on 1985 timestudies and re-
sulting standard data information based on the timestudies.
As Respondent noted in the July 22 collective-bargaining
session, it erred in informing the Union that Respondent did
not retain a copy of the 1985 timestudy standard data sheets.
At the July 22 collective-bargaining session, however, when
Scruggs told Union Negotiator Daily that Respondent had no
further data, he nevertheless said he would be willing to look
again for the standard data sheets (Tr. 550–551). He never
did find these basic stopwatch timestudies and these were
never surrendered to the Union. The only evidence of record
is that, at Scruggs’ suggestion, Smith made further efforts to
locate existing materials relating to the timestudies and, on
August 29, came up with the standard data forms which were
supplied to the Union on that date. In the absence of evi-
dence that Respondent had been or was hiding the underlying
timestudies, its failure to supply them does not violate the
Act. It could not find them. To the extent General Counsel
urges otherwise, I must reject that argument as unproven and
recommend to the Board that to the extent that Respondent
failed to supply the stopwatch studies, it was privileged to
do so because it did not have them, on the facts of this
record. It discovered the standard data sheets and gave them
to the Union when it found them. Absent contrary evidence,
I find Respondent’s testimony to be credible.
c. Respondent’s delay in supplying the Union with the
master data sheets, a/k/a standard data forms
Pursuant to the Union’s December 10, 1987, opening re-
quest for information, including ‘‘8. copies of all production
quotas . . . and copies of formulas, time studies, etc., used
in determining each production quota’’ (G.C. Exh. 2(A)), Re-
spondent, as requested, provided the Union, at the first col-
lective-bargaining session on January 15, 1988, with the pay
rates of Arlington unit employees (G.C. Exh. 3(A)), and the
31-page packet of ‘‘timestudies’’ (G.C. Exh. 3(D)). That doc-
ument contains the element descriptions of all unit jobs, in-
cluding incentive rated jobs, together with apparent time no-
tations, in fractions of minutes, required for the execution of
the associated ‘‘element’’ appearing on the data sheet.
It was not until June 29 1988, more than 5 months after
Respondent had delivered the 31-page document to the
Union, that the Union contacted its divisional headquarters,
advising that it did not know how to use the materials pre-
sented by Respondent. I conclude from Daily’s account of
his conversation with President Rudd (in which Rudd stated
that he needed help in deciphering the materials already
served by Respondent) that, as a matter of law, it is futile
for General Counsel to argue that if Respondent had earlier
discovered the additional master data sheets (as it did on Au-
gust 29, 1988) the bargaining would have been stimulated
and advanced. Rudd did not know how to use the material
at hand and himself had delayed 5 months before seeking
aid, ultimately from Daily, in deciphering what the Respond-
ent, at the Union’s request, had served 5 months previously.
I therefore conclude that Respondent may not be faulted,
under Section 8(a)(5) of the statute, for having failed to pro-
vide the Union with materials other than that which it pro-
vided on January 15. Absent a showing that Respondent had
the master data sheets in its possession and was hiding them,
or that its failure to locate them, between January 15 and
August 29, 1988, amounted to some grossly negligent con-
duct akin to a willful disregard of its bargaining obligation,
I cannot fault Respondent’s failure to provide such other ma-
terial to the Union until August 29, 1988.
The record is obscure with regard to Respondent’s claim
that it was confused by the Union’s requesting ‘‘Master Data
Sheets’’ and then asking for a ‘‘Standard Data Element
Book’’ (Tr. 177). Respondent’s suggestion that its confusion
arose from a lack of accuracy of the Union’s request, to the
extent that Attorney Scruggs felt it necessary to reduce to
writing exactly what the Union was looking for, is not en-
tirely persuasive. However, this is merely a matter of sus-
picion.
In any event, it was not until the July 22, 1988 collective-
bargaining session, that Daily picked up a blank form of
standard data sheet and showed Scruggs exactly what the
Union was looking for (Tr. 552). It is from July 22 that Re-
spondent’s August 29, 1988 delivery of the standard data
forms must be measured in terms of its compliance with Sec-
tion 8(a)(5)’s demand for good-faith bargaining.
In Respondent’s September 6, 1988 letter (G.C. Exh.
3(N)), Scruggs admits to having erred on July 22 in inform-
ing the Union that it did not have a copy of the 1985 stand-
ard data sheets. There is no evidence, whether gleaned from
Respondent’s or General Counsel’s witnesses, to show that
Scruggs’ claim of ‘‘error’’ was made in bad faith. Nor is
there evidence that his testimony that Smith delivered the
documents to him on the very day of the August 29 collec-
tive-bargaining session and that he delivered them to the
Union promptly on that date is suspect. Of course, all the
facts supporting Respondent’s testimony are and were within
Respondent’s control. Nevertheless, there is no suggestion on
1044 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the record that between July 22 and August 29, or at any
other time, Respondent knew, or should have known, that it
had retained in its possession the standard data sheets which
reflected the underlying time motion studies of 1985. In ana-
lyzing Respondent’s alacrity in executing the demand for the
master data sheets and time motion studies, whether meas-
ured from the original December 10, 1987 demand, or the
Union’s particularizing its demand on July 22, 1988, Re-
spondent’s conduct, of course, raises suspicion. The fact is,
however, that Respondent did admit on July 22 that it acted
erroneously but this was a matter of a 6-week delay in col-
lective bargaining which had been going on for more than
8 months at that time. Even so, if Respondent’s testimony is
credited, it only discovered the existence of the master data
sheets on the very same day that it provided them to the
Union. I cannot say that there is any other evidence of record
which demonstrates the Respondent was sitting on its hands
all the time, certainly from July 22, and failed to speedily
provide the Union with the documents.
In the absence of other evidence showing that either Re-
spondent’s failure to provide the requested materials or its
delay in providing it, prior to its execution of the demand
on August 29, 1988, were acts of bad faith, I am constrained
to recommend to the Board that the allegation of a violation
of Section 8(a)(5) and (1) of the Act, in these regards, be
dismissed as unproven. I therefore recommend to the Board
that paragraphs 19, 20, and 21 of the third consolidated com-
plaint be dismissed.
6. Alleged violation of Section 8(a)(5) by plant
Manager Carl Hussey; unlawful direct dealing
with union employees
On a Friday in August 1988, there had been a layoff of
some helpers and inspectors at the Arlington plant (Tr. 622).
Before the end of that Friday, Plant Manager Carl Hussey
told Sharon Smith, 2-year employee, one of the three cutters
in the plant, that he wanted to talk to the cutters on the fol-
lowing Monday morning. After a plantwide Monday morning
meeting of all employees whereas Hussey told 50 employees
that the layoff had not been their fault, that they were doing
a good job and that they should keep up the good work, he
asked the three cutters to stay behind because he wanted to
talk to them as a group. The three cutters, Sharon Smith, Ray
Charles Horn, and Larry Thompson, remained behind in the
breakroom Hussey first assigned particular cutting operations
to the three employees (Tr. 624) and there told them that he
knew that they deserved a raise but that he could not give
us a raise ‘‘right now,’’ that ‘‘his hands were tied but that
in a little while he would be able to give us a raise.’’ (Tr.
624.) He also said that he would be placing one of the cut-
ters over the other cutters in the cutting department.
Smith admitted that she had never received a pay raise
since the Hussey conversation and that no one had been put
in charge over other cutters in the cutting department.
Ray Charles Horn recalled that Hussey first ‘‘rearranged’’
the operations of the cutting department and how the ‘‘paper
work was going to run’’ (Tr. 1212), and then told the three
assembled cutters that ‘‘he knew we deserved more money,
and that right now that the Union’s got his hands tied . . .
[and] after they do away with the Union, we will get more
money and . . . out of us three, it will be one cutter over
the paper work, make more money than the other two
would’’ (Tr. 1212).
Although Respondent cross-examined Horn, it failed to in-
quire concerning his conversation with Hussey. Larry
Thompson did not testify at the hearing.
Hussey testified that he recalled several meetings with cut-
ting department employees in the summer of 1988 (Tr.
1351), but in none of them was the subject of raises ever dis-
cussed. Nor did he ever tell cutting department employees at
the Arlington plant that he desired to give them a pay raise
(Tr. 1352), or that the Respondent would give them a pay
raise as soon as it got rid of the Union (Tr. 1351). On two
occasions, however, Hussey testified that with regard to the
alleged conversations with employees concerning a pay raise,
he did not make statements to employees, specifically the
cutting employees concerning a pay raise. He said, ‘‘not in
a particular meeting, no’’ (Tr. 1351). When asked whether
he had made statements similar to those which appear in
paragraph 22 of the third consolidated complaint (that
Hussey coerced employees, ‘‘by telling them that although
they needed a wage increase, Respondent could not grant
them a wage increase because of the Union, and further tell-
ing said employees that the Respondent would give them a
wage increase in the near future’’), he said ‘‘not in a meeting
with the cutting department.’’ It was only when pressed with
the question whether he made any similar statement to that
which appears in the complaint, regardless of whether it was
in a meeting with cutters or any other employees, that
Hussey made his denial broader (Tr. 1353) and stated that
he made no such statement.
Discussion and Conclusions
General Counsel asserts that employees Smith’s and
Horn’s testimony should be credited and that Hussey’s blan-
ket denial should be discredited, particularly since current
employees testifying in the face of Respondent’s representa-
tive should be credited. Their testimony is against the em-
ployer’s interest and contrary to their own interest. See Gold
Standard Enterprises, 234 NLRB 618, 619 (1978), where the
Board noted that it has long recognized that the testimony of
a witness still in the employ of an employer, whose testi-
mony is in direct contradiction to Respondent’s supervisors,
is apt to be ‘‘particularly reliable, inasmuch as the witness
is testifying adversely to his or her pecuniary interest, a risk
not lightly undertaken.
In addition, I noted a certain hesitancy in Hussey’s will-
ingness to specifically deny having any conversations with
cutters concerning pay raises. I was dissatisfied with his re-
peated assertion that he did not make any such statement ‘in
a particular meeting.’’ Assuming arguendo, that Hussey
thought that his denial related only to a specific meeting
since the testimony of General Counsel’s witnesses related to
specific meeting, I nevertheless, in my observation of Smith
and Horn as witnesses, do not believe that they made up
their testimony out of thin air. Consistent with the Board’s
rule concerning the testimony of current employees testifying
adversely to their employer, and noting my observation of
Hussey’s apparent hesitancy. I credit General Counsel’s wit-
nesses.
Respondent defends on the ground that Smith admitted, on
cross-examination, that none of the statements allegedly
made by Hussey had come to pass—none of the cutters have
1045LANGSTON COS.
been put in charge and there was been no pay raise received.
The execution of Plant Manager Hussey’s statements to the
employees is not in issue; it is the statement themselves. To
argue from lack of execution that the statements had not
been made, it seems to me is a difficult and unsupportable
position.
Furthermore, Respondent argues that assuming, arguendo,
that Hussey did make the statements attributed to him by
Sharon Smith, the statement violates neither Section 8(a)(1)
nor 8(a)(5) because the phrase ‘‘hands are tied’’ is a mere
reference to Hussey’s personal powers (he is not on the Re-
spondent’s negotiating committee) and that the balance of
her testimony that ‘‘in a little while he will be able to give
a raise’’ is ambiguous because Hussey could have been refer-
ring to the conclusions of negotiations which might result in
a wage increase. Unfortunately, Respondent’s assertion of
ambiguity is based on a record which does not exist. Hussey
did not say that at the conclusion of the negotiations Re-
spondent would give them a raise; he couched the giving of
a raise much more personally than that. As Respondent
notes, he will be able to give the raise (R. Br. p. 25).
The seminal phrase within the testimony of General Coun-
sel’s witnesses is that of Horn: ‘‘[He] went on to tell us . . .
after they do away with the Union, we will get more
money.’’ Respondent’s brief in no way alludes to Horne’s
testimony and thus fails to attack Horne’s credibility because
Smith’s version omits any reference to the Union. Neverthe-
less, if Horn is credited, Hussey is making a promise of ben-
efit conditioned on Respondent getting rid of the Union (a
promise and position not wholly inconsistent with the spirit
of President Langston’s preelection statements to Arlington
unit employees) and also constitutes direct dealing with em-
ployees conditioned on Respondent’s ‘‘getting rid of’’ the
Union. A promise of benefits to employees without taking
into account the power and responsibility of their certified
collective-bargaining representative, alone, would constitute
unlawful ‘‘direct dealing’’ with employees, in violation of
Section 8(a)(5) and (1) of the Act. When the promise of such
a wage increase, itself violative as direct dealing, is joined
to the condition that it would occur after Respondent ‘‘got
rid of’’ the Union, it would seem that the direct dealing has
an explicit unlawful motive. While unlawful motive is not a
condition of a violation of Section 8(a)(5), NLRB v. Laredo
Coca Cola Bottling Co., 613 F.2d 1338 (5th Cir. 1980), cert.
denied 105 LRRM 2658 (1980), when, as here, an unlawful
condition is placed in juxtaposition with the promise of bene-
fit, then fortiori the violation is made out.
Neither my observation of Horn nor comparison of his tes-
timony with Smith’s causes me to discredit his version.
Hussey’s testimony was unimpressive.
I conclude, therefore, that Respondent by its Plant Man-
ager Carl Hussey, in or about August 1988, as alleged, vio-
lated Section 8(a)(5) and (1) of the Act by promising em-
ployees a pay raise when Respondent got rid of the Union.
7. Alleged violation of Section 8(a)(5); withdrawal of
agreement on holidays
In calendar year 1987, the holidays enjoyed by Respond-
ent’s employees appeared in Respondent’s Employee Hand-
book, a printed booklet, at page 16 thereof, entitled ‘‘These
Are Your Holidays’’ (G.C. Exhs. 5(B) and 5(C)). There are
eight printed, named holidays in Respondent’s Employee
Handbook (New Year’s Day, Good Friday, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day, Christmas
Day, and a floating holiday).
In a separate paragraph, Respondent attached four limiting
conditions to eligibility for holiday pay: the employee must
be employed for 90 calendar days; the employees must work
the day before and the day after the holiday; if the employee
does not work the day before or the day after, such failure
will be excused for any one of five printed reasons: absence
due to work related injury; absence excused with a doctor’s
certificate; a military obligation; bereavement; and jury duty.
Other conditions and limitations on holidays appear in the
printed booklet but are irrelevant in this statement of facts.
Sometime in 1987, but apparently before Christmas 1987,
Respondent granted a ninth holiday: Christmas Eve.
At the first collective-bargaining session on January 15,
1987, Respondent’s chief bargainer and counsel, Scruggs,
gave to the Union’s bargainer, Leachman, a copy of the
printed Employee Handbook. In his own handwriting, he
added the words (on the copy he served on Leachman)
‘‘Christmas Eve added 1987.’’ He then initialed the addition
which he had written in (Tr. 326; G.C. Exh. 5(C)).
Leachman retained this handbook, so inscribed by Scruggs.
On February 1, 1988, the Union submitted a holiday pro-
posal which, inter alia, requested 12 paid holidays and, with
regard to excused absences on the day before or day after
the holiday, suggested the additional excuse ‘‘unless his ab-
sence is for other justifiable cause.’’ (G.C. Exh. 5(A).)
On March 22, 1988, Respondent submitted its proposal on
the holidays (G.C. Exh. 5(D), the proposal appearing only in
its typewritten form without any handwritten changes (Tr.
37). This March 22 Respondent holiday proposal listed nine
holidays, including Christmas Eve, and repeated the five ex-
cuses for employees who are otherwise qualified for holiday
pay but fail to work the day before and the day after the hol-
iday. Discussions of holidays at collective-bargaining ses-
sions occurred on April 1 and 15, May 11, and July 5, 1988
(G.C. Exh. 5(D)). Apparently some time in the April or May
collective-bargaining sessions, but in any event no later than
the July collective-bargaining session, the parties reached
agreement with regard to the addition of a further basis on
which employee absence from work on the day before or the
day after the holiday would be excused. Agreement was
reached on adding the language ‘‘unless otherwise excused
by management’’ as a further basis for excusing a failure to
work on the day before and the day after (Tr. 333–334). That
agreed-upon further excuse was written in as the new section
‘‘f’’ in section 3 of the printed handbook (G.C. Exhs. 5(B)
and (C)), (Tr. 338–339).
At the July 5, 1988 collective-bargaining session, however,
the Union withdrew its own holiday proposal (G.C. Exh.
5(A)) and told Respondent that the Union would accept the
Respondent’s Handbook language along with the changes al-
ready negotiated (Tr. 339; R. Br. p. 31). Scruggs then asked
the Union to submit its written position to Respondent. The
Union refused to do so (Tr. 339; 344). Although Scruggs tes-
tified that he was confused by the Union’s refusal to submit
its proposal in writing (Tr. 339), he nevertheless told the
union negotiators that its proposal was ‘‘okay’’ (Tr. 339). He
then inscribed the new excuse (par. 3(f)) in the printed hand-
book as a matter that had been previously agreed on (Tr.
339–340).
1046 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Scruggs, after saying ‘‘okay,’’ then placed the expression
‘‘ok,’’ with his initials and the date ‘‘7/5/88,’’ on the printed
handbook next to the title ‘‘These Are Your Holidays’’ (G.C.
Exh. 4(B)); (Tr. 339–340). He gave this document, with his
initials, ‘‘ok’’ and the date to the Union (Leachman) for her
signature. He said: ‘‘Here, sign that’’ (Tr. 332). She did so.
He told her: ‘‘we have an agreement’’ (Tr. 332). At this
point, the Union (Leachman) handed Respondent (Scruggs)
the copy of Respondent’s employee handbook which Scruggs
had given to the Union on the previous January 15, the first
day of collective bargaining. That copy of the handbook con-
tained Scruggs’ notations showing the addition of Christmas
Eve as a holiday (G.C. Exh. 5(C)). On that document,
Leachman had already written in, as Scruggs had written in
on his copy of the printed employee handbook, the new para-
graph ‘‘3(f)’’ relating to the further excuse for failing to
work on the day before or the day after holidays: ‘‘unless
otherwise excused by management.’’
Leachman handed to Scruggs the above copy of the em-
ployee handbook holiday provision (containing Scruggs’ no-
tation of the addition of Christmas Eve) and said to him
‘‘sign mine’’ (Tr. 332; 335). When Leachman gave Scruggs
her copy of the employee handbook holiday section contain-
ing the addition of Christmas Eve as a holiday, and asked
him to sign it, he told her, ‘‘I won’t agree to this’’ (Tr. 336);
but Leachman said: ‘‘you’ve already agreed to it’’ (Tr. 336).
Scruggs immediately said: ‘‘No, we have not had a meeting
of the minds on the number of holidays and we don’t have
an agreement on this subject’’ (Tr. 336). Scruggs told
Leachman that Respondent’s proposal which the parties had
agreed on did not include Christmas Eve, and that was the
agreement Respondent was willing to make (Tr. 337). He
also stated that if Christmas Eve was going to remain on the
holiday list, Respondent was not willing to give up certain
restrictive language that it had proposed on March 22, 1988,
in Respondent’s own holiday proposal. He again told
Leachman that there had been no ‘‘meeting of the minds (Tr.
337).
With regard to Scruggs’ statement that the parties had an
agreement and his mental reservation that that agreement in-
cluded restrictive language that Respondent had proposed on
March 22, Scruggs testified that after the Union (Willie
Rudd) told him that the Union would accept the handbook
language ‘‘plus the things we have already agreed on’’ (Tr.
344) and Rudd refused to put the Union’s proposal in writ-
ing, Scruggs, decided to not make a ‘‘big issue out of that’’
(Tr. 344). As Scruggs described it, he picked up the hand-
book and told the Union that if they would ‘‘agree to the
handbook language plus what we had agreed on . . . we
agreed to 3(f) . . . so I wrote that in there, and in fact I
think we agreed we would write that in there as 3(f) . . .
[and I] signed off on it, handed it to Mrs. Leachman and she
signed off on it, and everything’s hunky-dory until she hands
me hers with the additional holiday on it’’ (Tr. 344). He ad-
mitted that he never told the Union that Respondent’s agree-
ment to the holiday proposal was based on Respondent’s
willingness to withdraw any restrictive language in Respond-
ent’s March 22, 1988 holiday offer (G.C. Exh. 5(D).
Discussion and Conclusions
Respondent takes the position that when Scruggs examined
his copy of the Company’s handbook (G.C. Exh. 5(B), he
mistakenly thought that the Union would agree to the eight
holidays printed in the handbook opposed to the nine holi-
days which, in fact, had been in existence since the prior
Christmas Eve (R. Br. p. 32). It was this mistaken under-
standing that, according to Respondent, when the Union
made a verbal proposal to accept the ‘‘company handbook
language, along with the changes we have already nego-
tiated’’ (Tr. 339; R. Br. p. 31), Respondent believed that the
Union was willing to accept eight holidays (rather than the
nine holidays which existed since Christmas of 1987). Re-
spondent argues that based on its mistaken understanding of
the Union’s verbal proposal Scruggs initialed a copy of the
handbook (G.C. Exh. 5(B)) and gave it to the Union
(Leachman) for her initialing. Respondent takes the further
position that Scruggs first realized that the Union did not in-
tend to give up a holiday in exchange for Respondent’s drop-
ping the eligibility language in its original proposal when it
was served with Leachman’s handbook (G.C. Exh. 5(C)
which contained the Scruggs’ addition of the Christmas Eve
holiday listed thereon. It was on that realization that Scruggs
says he refused to sign the copy served on him by Leachman
(R. Br. p. 32, Tr. 346–348).
In support of its position, Respondent notes that before a
labor contract is created, there must be a ‘‘meeting of the
minds.’’ Respondent further states that Scruggs did not try
to trap Leachman and suggests that the parties return to the
bargaining table on the holiday issue (R. Br. p. 32).
It is unnecessary to discuss the various positions taken in
Scruggs’ testimony with regard to a failure of agreement due
to lack of ‘‘meeting of the minds.’’ None of Scruggs’ mental
reservations concerning any ‘‘quid pro quo’’ for Respond-
ent’s initialing its own employee handbook were ever com-
municated to the Union. When Scruggs initialed his own
copy of Respondent’s Employee Handbook holiday section,
it contained the agreed on (further) excuse for holiday pay
encompassed in paragraph 3(f) which agreement had been
reached early as the April or May collective-bargaining ses-
sions. When the Union offered to accept the Company’s
handbook holiday language, ‘‘plus the things we have al-
ready agreed on’’ (Tr. 344), this statement preceded the exe-
cution of Scruggs’ signature on the document and is saying
‘‘okay’’ and ‘‘we have an agreement.’’ The language con-
cerning limitation of holiday pay ‘‘unless otherwise excused
by management,’’ had already appeared on the face of the
document at the time that Scruggs had signed off on it. Re-
gardless of any further ambiguity or reservation that Scruggs
had in his mind, such reservations or limitations were never
communicated to the Union rather, they remained solely part
of Scruggs’ mental operations. What he signed was a com-
plete document in and of itself to which his initialing and his
expressed statement that ‘‘we have an agreement’’ dem-
onstrated no inclusion of any further statements or condition.
The only element which arguably created ambiguity and a
lack of ‘‘meeting of the minds,’’ on this record (notwith-
standing Scruggs’ insistence, at the hearing, that he had
mental reservations and had been confused by Union Presi-
dent Rudd’s refusal to put the Union’s position in writing)
was the absence from Scrugg’s own copy of the Christmas
Eve holiday. Regardless of Rudd’s refusal to place the
Union’s position in writing, and regardless of Scrugg’s men-
tal reservations, if any, Scruggs testified that he nevertheless
executed and stated that there was an agreement based on his
1047LANGSTON COS.
13 To the extent Respondent argues that its bargaining notes demonstrate a
lack of meeting of the minds, I read its bargaining notes quite to the contrary.
For in those notes (R. Exh. 26, p. 2), it appears that Scruggs placed his initials
on the company handbook language and gave it to the Union for its initialing
after Willie Rudd explained what the Union had agreed to within the meaning
of ‘‘any items we have already to in negotiations.’’ Thus, contrary to Re-
spondent’s arguments that there was ambiguity and uncertainty as to what this
language meant, Respondent’s own notes demonstrate that the Union explained
what the Union’s acceptance of ‘‘any item we have already agreed to in nego-
tiations’’ actually meant before Respondent executed the holiday agreement
(G.C. Exh. 5(B)).
handbook, it appeared in General Counsel Exhbit 5(b)—i.e.,
without Christmas Eve as a holiday.
When Leachman asked him to sign her copy of the hand-
book (given to her by Scruggs) containing Christmas Eve as
a holiday (written by Scruggs), this factor spurred Scruggs’
refusal to sign Leachman’s copy (G.C. Exh. 5(c) and, accord-
ing to Scruggs, caused him to state that there had been no
agreement because there was ‘‘no meeting of the minds.’’
8. Meeting of the minds and the parole evidence rule;
mental reservations and unspoken contemporaneous
oral statements
Whatever Scruggs’ mental reservations, and regardless of
any contemporaneous oral statements (which, in fact, he did
not make) at the time of execution of the agreement on holi-
days, the agreement itself is not ambiguous and Scruggs’
mental reservations must be excluded in determining whether
an agreement existed. There is ambiguity on the face of Gen-
eral Counsel’s 5(b) or 5(c) with regard to the meaning of the
agreement. Thus parole evidence, if any, contemporaneous
with the execution of the agreement, certainly unspoken
mental reservations, must be excluded under the parole evi-
dence rule from determining whether an agreement was made
and what the terms of the agreement were.
There remains the question (which Respondent believes to
be dispositive) of the failure of Scruggs’ copy to have listed
thereon, among the holidays, Christmas Eve as the ninth hol-
iday. In fact, the failure of Scruggs’ copy to have this ninth
holiday (Christmas Eve) listed thereon is a mere scrivener’s
error. There is no contention, and there cannot be, that at any
relevant time, the Respondent’s holidays consisted of any-
thing other than nine holidays. The eighth holiday program
of 1987, under Respondent’s prior unilateral act, no longer
existed. Not only is that the fact, but Respondent’s own
March 22, 1988 contract proposal on holidays listed nine
holidays as the holidays in existence. That had been true for
several months at least. Thus, when the Union offered to ac-
cept the ‘‘Handbook holidays’’ and Respondent agreed, Re-
spondent thereby accepted the existing current state of hand-
book holidays which, on this record, all parties agreed con-
sisted of nine holidays.
Respondent argues that it refused to sign the agreement,
based on the failure of ‘‘meeting of the minds,’’ because it
thought that Leachman, in executing Scruggs’ copy of the
handbook (G.C. Exh. 5(B)) was accepting a listing of only
eight holidays; and that when Scruggs saw Leachman’s copy
(in which he had inscribed Christmas Eve as the ninth holi-
day) with nine holidays, there was some fatal ambiguity. In
fact, however, I find that there was no ambiguity whatsoever.
At no place, outside the Scruggs’ incomplete and outdated
handbook, was there ever any suggestion of the existence of
an eighth holiday program. Thus, when the Union accepted
the ‘‘Handbook’’ (and that is what the Union proffered and
to which Respondent agreed), it was accepting only that
which was factually and legally in existence: nine paid holi-
days.
It is unnecessary to decide whether Scruggs’ later with-
drawal from the agreement flowed from an adversary posi-
tion; whether, despite his argument, in brief, he was, indeed,
trying to ‘‘trap’’ the Union on the basis of an outdated and
inaccurate handbook; or whether he genuinely believed that
the Union was sacrificing the ninth holiday in order to gain
agreement. Under no statement in the record, whether it be
Scruggs’ bargaining notes, the testimony, or any other docu-
ment or testimony, does there appear any suggestion that
there was any communication by any of the parties at any
time prior to July 5, 1988, that the number of existing holi-
days was a subject of dispute, much less that there was any
dispute that agreement could be had on the Union’s sacrifice
of a holiday. It is this total silence on the question of the
number of holidays which is the fulcrum of my conclusion
that the number of holidays was not an issue; that even if
Respondent was not trying to ‘‘trap’’ the Union by a dissem-
bling position with regard to how many holidays were in-
volved in their agreement, there was nothing said with regard
to the number of holidays (nor to any other restriction on the
limitations imposed on employees for being paid on holi-
days) prior to the time that Respondent signed off on the hol-
iday booklet and said that there was an agreement.
The fact that Scruggs’ handbook did not list the Christmas
Eve holiday is, in my judgment, wholly immaterial since the
Union had accepted, and Respondent had agreed to, the holi-
days listed in Respondent’s ‘‘Handbook.’’ The holidays list-
ed in Respondent’s Handbook were nine holidays. Respond-
ent’s attempted withdrawal from the agreement at the bar-
gaining table, when it saw that the Union was basing its ac-
ceptance on the existing nine holidays (as Leachman said
‘‘sign mine’’), is arguably an attempted bad-faith entrapment
of the Union, or, putting a milder face on the course of
events, a ‘‘cat and mouse game.’’
While the statute, particularly Sections 8(a)(5) and 8(d),
envisions and permits hard bargaining, K-B Resources, 294
NLRB 908 (1989), the Board, with court approval, frowns on
‘‘cat and mouse’’ games which demonstrate a mere pretense
at negotiations. Negotiations without a spirit of cooperation
and good faith lead to an inference of a party’s lack of desire
to actually reach agreement. NLRB v. Holmes Tuttle Broad-
way, 465 F.2d 717, 719 (9th Cir. 1972).
In short, I find that Respondent’s refusal to abide by the
holiday agreement of July 5, 1988, and its repudiation there-
of, constitute an act of explicit bad-faith bargaining and a
violation of Section 8(a)(5) and (1) of the Act as alleged in
paragraph 24(b)(3) of the third consolidated complaint.13
9. Alleged violation of Section 8(a)(5); Respondent’s
refusal to offer the Union an insurance premium
deduction option for the employees at the
Arlington location
In paragraphs 24(b)(4) and (5) the General Counsel al-
leges:
(4) From on or about July 1, 1988, to on or about
August 31, 1988, Respondent offered employees at its
non-unionized plant the option, under Federal Tax
1048 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 The conduct alleged in all of par. 24(b) is alleged as a violation of Sec.
8(a)(1) and (5) and Sec. 8(d) of the Act.
15 Although the facts suggest that Respondent withheld granting the option
to the unionized employees at Arlington because of their unionized status, on
the testimony of President Langston, I make no analysis or finding with regard
to the violation of Sec. 8(a)(3) of the Act. There was no such allegation, and
the case was litigated on the theory that withholding of the option impeded
bargaining such as to constitute a violation of Sec. 8(a)(5) of the Act. On due
process grounds, therefore, I will disregard any suggestion of discriminatory
motive in the failure to grant the option to the unionized employees or that,
in any case, there was a violation of Sec. 8(a)(1) or (3) of the Act. See Soule
Glass & Glazing Co. v. NLRB, 652 F.2d 1055 (1st Cir. 1981); Advo System,
297 NLRB 926 (1990).
Code, of having insurance premiums deducted from
there weekly pay before federal withholding and Social
Security Taxes are calculated.
(5) Respondent engaged in the conduct described
above in paragraph 22(b)(4) without proposing to the
Union that the employees employed in the Unit be
granted the same option as that described in paragraph
24(b)(4).14
Respondent’s answer admits the allegations of the com-
plaint.
According to the evidence, in the period July 1 to August
31, 1988, Respondent offered its employees at its nonunion-
ized plants the option, under the Federal Tax Code, section
125(d), of having insurance premiums, paid under the Social
Security FICA program, deducted from their weekly pay be-
fore the calculation of Federal income tax withholding (Tr.
309–310). The exercise of such an option would bind the
employee, for an unspecified period on this record, to mini-
mization of his payment of income taxes based on weekly
wages. Another effect, however, of an exercise of this option
to minimize deductions from weekly pay (and therefore in-
crease the actual wages received) is to decrease the em-
ployee contribution into the FICA pool. Thus the employee’s
contribution, in terms of measuring FICA wages, would de-
crease and therefore the employee’s social security contribu-
tion would be lower. In case of subsequent disability or re-
tirement, the employee’s insurance return would be dimin-
ished by his decreased FICA contributions which resulted in
the earlier maximization of the take-home pay (Tr. 311–312).
Respondent’s position, taken on issuance of complaint and
at the hearing, is that it failed and refused to offer the option
to unit employees at Arlington because Respondent wanted
to ‘‘minimize the number of changes proposed [at Arlington]
in hopes that the fewer changes to negotiate would increase
the possibility of obtaining an agreement from the Union’’
(Tr. 313; G.C. Exh. 4(n)).
Scruggs testified that he regarded the grant of the option
to the nonunionized employees as a benefit (Tr. 316–317).
A notice posted at Respondent’s four nonunionized plants
on or about December 30, 1988 (G.C. Exh. 4(N)), attachment
‘‘B’’) addressed to ‘‘All Employees,’’ inter alia, states:
Keep in mind that those of you who signed up for the
125(d) provision will receive a tax break for the amount
you pay in insurance premiums. If you have any ques-
tions concerning these changes please contact the Bene-
fits Office.
Scruggs testified (Tr. 1365–1866) that though the section
125(d) notice, posted at all Respondent’s plants, was ad-
dressed ‘‘to all employees,’’ he had never discussed the sec-
tion 125(d) option with the Union and never notified the
Union or the employees at Arlington that such an option ex-
isted (Tr. 1367–1868). In fact, the basic memorandum posted
at all the plants concerned Respondent’s insurance program.
The reminder concerning the section 125(d) option appeared
on the final paragraph. The only plant at which the reminder
concerning the section 125(d) option was not included was
the Arlington plant. The record discloses that the Union
never demanded the benefit of the section 125(d) option at
the bargaining table or during collective bargaining prior to
the issuance of the third consolidated complaint.
Respondent President Langston testified (Tr. 523–525) that
the section 125(d) option was granted to all employees other
than the unionized employees at Arlington and that the exer-
cise of the option was a ‘‘direct benefit money-wise.’’ He
denied that the only reason that this option was not granted
to the Arlington employees was that they were unionized (Tr.
524) but testified that he did not know the reason it was not
offered to them (Tr. 524). He asserted that it was in the
hands of Respondent’s negotiating committee; that it knew of
the provision; and that he gave no direction to the negotiat-
ing committee whether to give the Arlington employees that
benefit. As I understood his further testimony, despite his in-
sistence that the issue of granting the option was in the hands
of his negotiators, he said that if there was no union, there
would be no negotiations and if there were no negotiations
‘‘I guess this wouldn’t have been a question.’’ (Tr. 525.)
Thus, as I understand his testimony, if there had not been a
union at the Arlington unit, the employees would have been
granted the section 125(d) option.15
Discussion and Conclusions
As above noted, General Counsel alleges a violation of
Section 8(a)(5) and (1) of the Act in paragraphs 24(b)(4) and
(5) of the third consolidated complaint. Those subparagraphs
alleged the violation because in the period July 2 through
August 31, 1988, Respondent offered its nonunionized em-
ployees the section 125(d) Tax Code option without propos-
ing to the Union that the unionized employees at Arlington
be granted the same option.
The short answer to this allegation is the Respondent en-
gaged in no fraud or deception. It simply did not offer the
benefit at the unionized plant. The Union knew nothing of
this benefit until the hearing.
Respondent, in collective bargaining, is under no obliga-
tion to acquaint the Union of working conditions and bene-
fits at its other plants. It is under no obligation to offer any-
thing. The Union may make demands or requests to improve
or change wages, hours, and other terms and conditions of
employment. The employer need offer nothing, even if the
effect is to frustrate bargaining, H. K. Porter Co. v. NLRB,
397 U.S. 99, 110 (1970) (Justices Douglas and Stewart, dis-
senting).
I recommend that this allegation be dismissed. Cf. Chev-
ron Oil Co. v. NLRB, 442 F.2d 1067 (5th Cir. 1971), cited
in Soule Glass & Glazing Co., supra.
1049LANGSTON COS.
16 Respondent’s handbook maintains a separate section reciting the require-
ments of ‘‘payroll deductions’’ (G.C. Exh. 2(E), p. 14). That provision notes
the obligatory nature of deductions from the paycheck of both income taxes
and social security contributions. It then states: ‘‘Any other deductions must
be authorized your written signature before they can be made.’’
10. Alleged violation of Section 8(a)(5); bad-faith
bargaining with regard to the issue of dues checkoff
In paragraph 24(b)(7), General Counsel alleges that Re-
spondent took arbitrary and shifting positions with respect to
the issue of dues checkoff and, thereby, frustrated bargaining
and manifested an intent not to reach final and binding
agreement.
The facts do not appear to be in substantial dispute. On
January 15, 1988, at the first collective-bargaining session,
the Union submitted its dues-checkoff proposal requiring Re-
spondent to deduct employees’ union dues and initiation fees
from wages and to remit such amounts to the Union (G.C.
Exh. 6(A); Tr. 373). At the ensuing February 11 collective-
bargaining session, Scruggs told the Union that Respondent
had not decided whether it would agree to a checkoff at all
but, in any case, it would not agree to this dues-checkoff de-
mand. In particular, Scruggs told the Union that it was his
understanding that employees, under the law, could resign
from union membership at any time; but that the Union’s ex-
isting dues-checkoff demand made the dues-deduction au-
thorization irrevocable for a year and that, thereafter, the re-
quested checkoff provision would give each employee only
a 10-day ‘‘window’’ once a year to withdraw the checkoff
authorization (Tr. 374).
On June 21, 1988, the Union changed its position with re-
gard to checkoff. At a collective-bargaining session on that
date, in the presence of a union attorney, the Union offered
to insert the words ‘‘equivalent of’’ before the expression
‘‘regular dues.’’ Respondent made no further statement ex-
cept that it would consider the amended request on dues
checkoff. Ultimately according to Scruggs, it could see no
difference from the original offer regarding the obligation to
deduct money for a year and the limited escape clause (Tr.
375–376).
On August 29, 1988, Respondent told the Union that it
wanted no checkoff clause in the contract (Tr. 378; 379) and
made no counterproposal regarding checkoff (Tr. 379). When
Leachman asked for Respondent’s position on checkoff, and
Scruggs told her that Respondent wanted no checkoff provi-
sion in the contract, Leachman told him: ‘‘Well, you’re not
getting your management’s right clause . . . and we have no
other checkoff clause to present.’’ (Tr. 380.) Scruggs re-
sponded that although they did not want a checkoff clause
in the contract, Respondent would consider alternatives to
checkoff (Tr. 383).
It is undisputed that on July 22 Respondent presented its
final’’ contract proposal which, on August 29, 1988, the
Union rejected. In its letter of September 6, Respondent de-
clared that the parties were at impasse. Following the filing
of an unfair labor practice charge on November 10, the par-
ties resumed bargaining on November 16 with Respondent
striking the word ‘‘final’’ from its July 22 final offer.
On November 16, 1988, the Union told Respondent that
it would be willing to consider an alternative to checkoff and
asked Scruggs to submit a counterproposal. Scruggs stated
that as an alternative to checkoff Respondent would permit
the Union to use the cafeteria on one payday per month to
collect dues. At the Union’s request, Scruggs agreed to put
this counteroffer in writing (R. Exh. 33).
On December 5, 1988, Respondent submitted this dues
collection counterproposal. It provided (and the parties dis-
cussed it) that union representatives would be permitted to
visit the plant to collect union dues, assessments, initiation
fees, and voluntary contributions from employees on the last
Monday of each month, between 2:15 an 4:15 p.m. with Re-
spondent providing the Union with a table and chairs in the
entranceway to the plant production area. Respondent further
conditioned the visits by union representatives so that the
visits would not interfere with the conduct of Respondent’s
business or the work of any employees; and employee pay-
ments to the Union would made during the employees’ regu-
larly scheduled break period or after work. (G.C. Exh. 6(C).)
The parties discussed the Union’s proposal’s restrictions on
employee ‘‘escape’’ from the checkoff obligation and the
Union questioned Scruggs regarding Respondent’s policy and
practice on its deductions from employee pay already in ex-
istence. (R. Exh. 33.) In substance, the Union requested that
the parties agree to the maintenance of Respondent’s hand-
book provision on deductions from employee’s pay.16
Scruggs then asked if the Union’s provision was supple-
mentary to the Union checkoff proposal or in place of it. The
Union responded that its proposal on checkoff was not with-
drawn. Respondent then rejected the Union’s proposals con-
cerning the Union’s checkoff proposal and the further hand-
book terms proposal (R. Exh. 34).
On December 20, 1988, Respondent answered the Union’s
questions concerning Respondent’s position on checkoff
(G.C. Exh. 6(D). The Union had previously noted that Re-
spondent subtracted from employee paychecks contributions
to Respondent’s credit union and for medical insurance pur-
poses. Respondent stated:
The programs you cited in your letter (i.e. credit union,
medical insurance) are company-sponsored benefits pro-
gram. We do not consider deduction of union dues a
company-sponsored benefit program. We are opposed
to any sort of wage assignments—we don’t take them
from creditors, even if the employee were to authorize
it. Ours is not a high-wage industry and we want the
employees to realize as much take home pay as they
can. What they do with it after they receive it is their
business. Too many deductions from an employee’s
paycheck might tend to generate dissatisfaction with the
Company pay rates. Another reason for the Company’s
declining to agree to deduct union dues is that the
checkoff authorizations are too restrictive. Furniture
Workers Union cards I have seen automatically renew
themselves from year-to-year and an employee who
wishes to revoke his or her checkoff has only a small
‘‘time window’’ each year in which to serve written no-
tice of the revocation. . . . We don’t want to play any
part in employees getting trapped into something they
have difficulty getting out of. The Company proposal of
union on-premises dues collection offers employees the
right to cease paying dues each month. We stand ready
to discuss this subject at any alternative proposals the
Union may have to submit.
1050 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
At the 29th collective-bargaining session on February 9,
1989, the checkoff issue was again discussed. The Union
(Leachman) asked Scruggs if Respondent’s only concern
with the Union’s dues-checkoff proposal was the ‘‘narrow
window to revoke it’’ (R. Exh. 36). Scruggs said that he had
given the Respondent’s position on checkoff several times;
that the position was unchanged, that the law gives the em-
ployees the right to resign from the Union at any time, and
therefore Respondent objected that the Union’s dues author-
ization was not revocable at will. Scruggs’, however, said
that Respondent had other objections to the Union’s checkoff
clause as well. In particular, as he had stated in his Decem-
ber 20 letter to the Union (G.C. Exh. (D)), that: ‘‘A checkoff
would generate a perception among the employees that their
take-home pay is too low.’’
When Leachman asked Scruggs whether a union agree-
ment to ‘‘an open-end checkoff would ease [Respondent’s]
concern,’’ Scruggs answered that such a concession ‘‘would
possibly address one of our concerns.’’ Scruggs added that
while Respondent would receive and consider any union pro-
posal on checkoff ‘‘that would not address our net pay con-
cern.’’
When Leachman then suggested that Respondent give the
employees a pay raise (to meet the ‘‘net pay’’ reservation),
the employees on the bargaining committee then addressed
certain personally abusive remarks to Scruggs (G.C. Exh.
36), and the discussion of checkoff apparently ended, not to
be resumed.
Although not specifically noted in the handbook, Respond-
ent in addition to obligatory deductions for income tax and
social security—as well as court-ordered deductions (support
payments, garnishment, etc.) authorizes deductions based on
employee requests where the deductions from paychecks go
to pay health insurance or deposits in Respondent’s credit
union (Tr. 425–426).
Leachman, at the hearing asked Scruggs if he had made
the statement that the reason Respondent would deduct credit
union moneys and not dues checkoff was because the credit
union benefited the Company. Scruggs testified that
Leachman had got the words ‘‘backwards’’; that he had said
that the credit union was a company benefit, a company-
sponsored benefit, such as insurance and ‘‘that sort of
thing.’’ He said that it was ‘‘a benefit that [Respondent]
made available to the employees’’ (Tr. 426).
Discussion and Conclusions
Scruggs’ testimony and the documentary evidence dem-
onstrate that Respondent’s objections to the checkoff con-
sisted of two elements: (1) the Union’s checkoff proposal
froze employees into a checkoff for a period of a year with
a 10-day ‘‘window’’ escape which, Respondent concluded,
was too complicated and narrow for the employees to under-
stand. Thus they would be obligated for a least a year into
checkoff deductions when the law, as Respondent understood
it, permitted both resignation from the Union and escape
from the checkoff clause at any time. (2) Respondent permits
deductions from the employees’ wages only under legal obli-
gation such as income tax, social security, court orders, etc.
Respondent rationalizes deductions from employee pay based
on contributions to Respondent’s credit union and health in-
surance plan on the ground that these were Respondent-spon-
sored benefits to employees. Respondent apparently believes
that the voluntary checkoff of union dues does not constitute
a benefit to employees. In order to maximize the face
amount of wages paid to employees, as Scruggs testified, Re-
spondent was anxious not to have further deductions from
their pay.
When the Union, however, at the February 9, 1989 collec-
tive-bargaining session asked Scruggs whether Respondent
would agree to a checkoff provision containing an ‘‘open
end’’ checkoff (i.e., a checkoff provision permitting the em-
ployee to discontinue checkoff of contributions at any time),
Scruggs answered that such a concession ‘‘would possibly
address one of our concerns . . . [but it] would not address
our net pay concern.’’ Based on this exchange between
Leachman and Scruggs, I conclude that Respondent’s ulti-
mate position in rejecting the Union’s checkoff proposal was
that the checkoff would diminish in the eyes of Respondent’s
employees the size of already comparatively small net pay.
When, at this same February bargaining session, Scruggs
raised the question of the ‘‘net pay concern,’’ he was met
by Leachman suggesting a pay raise and decision and abuse
from her cobargainers.
A ‘‘philosophical’’ opposition to checkoff, a union-secu-
rity device, may constitute evidence of bad-faith bargaining,
Tiffany & Co., 268 NLRB 647 (1984). No such Respondent
opposition was manifested here.
The evidence shows that in the February 9, 1989 collec-
tive-bargaining session, when Leachman tentatively proposed
an ‘‘open end’’ checkoff (revocation of checkoff at any
time), Scruggs relied only on Respondent’s ‘‘net pay’’ con-
cern, i.e., diminution of the face of the paycheck.
Where a proposed dues-checkoff clause is rejected as
being ‘‘nothing more than a union security device and be-
cause it made employees’ earnings appear lower,’’ it has
been held that such a rejection was ‘‘not based on any legiti-
mate business reason and does not satisfy the statutory obli-
gation to bargain in good faith.’’ See NLRB v. J. P. Stevens
& Co., 538 F.2d 1151, 1165 (5th Cir. 1976); and NLRB v.
A-1 Kingsize Sandwiches, 732 F.2d 872 (11th Cir. 1984).
In the instant case, while Scruggs did not explicitly dispar-
age Leachman’s tentative offer as a ‘‘Union security de-
vice,’’ he did reject it because it was not a company-spon-
sored benefit and because it was not revocable at will, i.e.,
too much union security. When Leachman’s tentative offer
sought to eliminate this wing of Scruggs’ objection, the ‘‘net
pay’’ objection became paramount.
I conclude that Scruggs’ statements, particularly his insist-
ence that Respondent-sponsored deductions were acceptable
impositions on employees’ net pay, demonstrate, if not a
‘‘philosophical’’ opposition to checkoff, Tiffany & Co.,
supra, yet an opposition because it benefits the Union rather
than Respondent. On such an inference, Respondent’s posi-
tion comes substantially within the bad-faith rule in NLRB v.
J. P. Stevens & Co., supra; NLRB v. A-1 Kingsize Sand-
wiches, supra. An opposition to checkoff because it is only
a ‘‘union security device and because it made employees’
earnings appear lower’’ is not based on a legitimate reason
and does not satisfy the statutory obligation to bargain in
good faith. I conclude that Respondent’s rejection of check-
off, on the grounds specified, violated Section 8(a)(5) and (1)
of the Act.
1051LANGSTON COS.
17 On June 14, 1988, Respondent had proposed to implement changes in the
group insurance effective July 1, 1988, and told the Union that, in future nego-
tiations, it would like to make the insurance problem ‘‘top priority for our
forthcoming sessions;’’ but added, ‘‘obviously, exactly what is implemented,
and when, is the subject for negotiations.’’ (G.C. Exh. 4(g).)
I was not impressed with Respondent’s argument that it
steadfastly opposed other employee paycheck deductions (R.
Br. p. 36) especially that it ‘‘refused requests for payroll de-
duction of United Way and various optional employee-elect-
ed insurance coverages.’’ The only authority for such a state-
ment which Respondent cites is the testimony of President
Langston (Tr. 519–520): that Respondent would not permit
any ‘‘extraneous insurance through payroll deduction because
anything that reduces what the employee sees as his take-
home pay constitutes, in Respondent’s judgment, a ‘‘nega-
tive’’ (Tr. 520). In short, he testified that he has resisted
‘‘other deductions’’ over the years (Tr. 520) which do not
constitute what he regards as ‘‘direct benefits’’ to the em-
ployees such as hospitalization insurance and credit union
deduction (Tr. 521).
Employee Josephine Benson testified, however, regarding
a 1986 meeting in Respondent’s breakroom at which Plant
Manager Bill White was present (Tr. 920–921). A United
Way representative circulated papers wherein each employee
donated a dollar and was given a United Way pen and a
sticker. In addition, however, the United Way representative
told the employees that if they wanted to donate to the
United Way they would take it out of ‘‘your check’’ (Tr.
921). No one from management contradicted this (Tr. 922)
but no employee signed any of the papers authorizing deduc-
tions. Benson was confident that Plant Manager White was
present when these transactions occurred. He instructed the
employees to return to work after the United Way presen-
tation (Tr. 942). White testified that he recalled no such inci-
dent, but said it could have happened (Tr. 1443).
The point, of course, is that White did not tell the United
Way representative or the employees of the existence of any
Respondent policy against deductions from their pay. On the
other hand, White may not have known of the policy, if it
existed, and Respondent cannot be held accountable for a
policy with which even the plant manager is not familiar,
notwithstanding that it was longstanding. I find this position
difficult to credit.
Lastly, I do not believe that Respondent’s counteroffer,
permitting the Union to collect dues at the plant during break
periods or at day’s end, in the plant or in the parking lot,
‘‘cures’’ its bad-faith rejection of the Union’s checkoff re-
quest. Whatever the merits of the counteroffer, Leachman
was clear in telling Scruggs that the Union’s checkoff request
was not withdrawn. Since the Union’s proposal was rejected
on unlawful grounds, the Union’s continued bargaining (re-
jecting Respondent’s counteroffer) cannot be construed as a
withdrawal of its offer or a waiver. The unremedied violation
was outstanding with or without Respondent proposing an al-
ternative checkoff, whatever its merit.
11. Respondent’s contract proposals and unilateral
implementation of its proposed insurance plan as
violations of Section 8(a)(1) and (5) of the Act
Except for a single issue of credibility, explicitly isolated
below, there appears to be no substantial dispute on the facts
of the parties’ bargaining on insurance and Respondent’s uni-
lateral implementation of its insurance proposal.
At all material times prior to the December 1987, certifi-
cation of the unit, Respondent’s employees were covered by
a group medical insurance plan underwritten wholly by Re-
spondent and administered by Provident Life and Accident
Insurance Company.
No later than February 4 1988, the Provident Life and Ac-
cident Insurance Company notified Respondent (R. Exh. 37)
that in order to maintain the existing health and other insur-
ance coverage, a premium increase of approximately 20 per-
cent would be required from Respondent to support a finan-
cially sound insurance plan. The insurance premiums paid by
Respondent are funded apparently in large part from payroll
deductions from employees’ wages. Respondent did not im-
plement the recommendation of its insurance administrator to
increase premiums by 20 percent because Respondent be-
lieved that such an increase would have an excessive impact
on employee wages (Tr. 1939).
In collective bargaining of March 22, 1988, Respondent
submitted an insurance proposal (G.C. Exh. 4(E). Respondent
would continue to make available to employees the existing
‘‘group insurance coverages’’ with Respondent paying the
same dollar amount for the cost of the insurance. The
‘‘group insurance coverages’’ were defined as life insurance,
accidental death and dismemberment insurance, and basic
and major medical insurance. In addition, the company de-
fined employee eligibility for the insurance program and pro-
posed that Respondent would have the right to change the
identity of the insurance carrier and, if necessary to effec-
tuate such change, alter the details of policy coverages and
claims procedures. It appears, however, that Respondent’s
March 22 offer was withdrawn on April 26, 1988, pending
a study by Respondent of insurance problems posed by its
administrator’s suggestion of increased premiums. (See G.C.
Exh. 4(E).)
On June 21, Respondent discussed a further insurance pro-
posal (apparently given to the Union immediately after June
2, 1988) in collective bargaining (G.C. Exh. 4(E) and (F): the
types of insurance and other elements of the existing plan
would remain except that the individual and family premium
costs to employees would be increased and the deductibles
would be increased. Coinsurance would be changed from 80
percent under the old plan to 75 percent under the new plan
(after the deductible).17
The Union, already in possession of Respondent’s existing
insurance program, and with Respondent’s letter of June 2,
1988, in hand, wherein Respondent proposed the above
changes, had compared Respondent’s proposed plan with the
plan of the United Furniture Workers Insurance Fund (G.C.
Exh. 4(H)). According to the assistant director of the Union’s
insurance fund, the share of employee premiums under the
union plan would be less and he also notified the Charging
Party that the United Furniture Workers Insurance Fund was
prepared to guarantee to Respondent a 3-year contribution
rate with ‘‘better benefits for a lesser overall cost’’ (G.C.
Exh. 4(H)).
At the June 21, 1988 bargaining session, when the find-
ings and conclusions of the United Furniture Workers Insur-
ance Fund were given to Respondent verbally, Respondent
asked for the Union’s position with respect to Respondent’s
insurance proposal in view of its desire for an interim agree-
1052 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 This final proposal notes on its face that the parties, in the period January
22, 1988 through July 12, 1988, had reached agreement on 10 items (recogni-
tion, company-union relations, call in pay, overtime, payday, jury service, first
aid cabinet, savings provision, sick pay, and bereavement pay). The document,
however, also notes 25 items of economic and noneconomic issues on which
no agreement had been reached (management rights, no-strike no-lockout,
stewards, union visitation, grievance and arbitration, seniority, job vacancies,
layoff and recall, hours of work, meal and rest periods, wages, vacations, holi-
days, insurance, pension and retirement, leaves of absence, discipline and
discharge/plant rules, substance abuse, plant safety and security, physical ex-
aminations, temporary job assignments, job classification and duties, special
categories of employees, complete agreement and duration and termination of
agreement). With regard to wages, for instance, Respondent’s original position
was merely to notify the Union of its existing wage pattern (G.C. Exh. 3(a)).
In the face of the Union’s proposal of substantial wage increases made Feb-
ruary 1, 1988, Respondent’s counterproposal of March 22, 1988 (G.C. Exh.
3(C)), was the subject of discussions apparently in June 1988. By July 5,
1988, the Union had modified its wage demands in the first and second year,
dropping them from a $1-per-hour increase to 80 cents. No agreement on
wages, however, was reached.
19 Respondent (Langston and Scruggs) testified that Respondent believed
that its desire to have ‘‘leverage’’ on the insurer was a particular reason not
only to control the identity of the insurer, but to reject the Furniture Worker’s
Insurance Plan as the insurer.
ment on an insurance plan (Tr. 272). The Union said that it
did not want to ‘‘piecemeal a contract’’ (Tr. 272) and said
that it would not agree to the plan proposed by Respondent
(Tr. 270). Scruggs testified that he wanted to advance the
issue of Respondent’s insurance proposal on the collective-
bargaining agenda because of a ‘‘sense of urgency due to the
underfunding’’ (Tr. 273). He thus told Leachman that he
wanted to implement the insurance plan effective July 1,
1988, although he was still willing to continue to discuss the
insurance matter (Tr. 273). Although Scruggs told Leachman
that the increases in insurance deductions had been rec-
ommended by the insurance company (Tr. 273), he submitted
no documents to the Union. The only basis for his testimony
with regard to the ‘‘sense of urgency’’ for the July imple-
mentation was, as he testified, his telling Leachman of the
recommendation by the insurance company. He may have
used the word ‘‘urgent’’ (Tr. 275) in speaking to Leachman
about this matter.
As above noted elsewhere on July 22, 1988, Respondent
submitted its ‘‘final offer’’ to the Union. This comprehensive
offer was the ‘‘final contract proposal submitted by Langston
Company’’ (G.C. Exh. 3(H)).18 This July 22 ‘‘final offer’’
had the same insurance materials as that offered on June 2
and discussed on June 21.
On August 31, 1988, the Union rejected Respondent’s
final offer of July 22 (G.C. Exh. 3(M)); and on September
6, 1988, Respondent declared impasse (G.C. Exh. 3 (N)).
Respondent concedes that the parties commenced further
collective-bargaining negotiations on November 16 (Tr. 245)
after the Regional Office of the Board issued a complaint in
which it alleged, inter alia, that the parties were not at im-
passe (Tr. 236). Respondent asserts that while it did not
agree with the determination that there was no impasse, it
nevertheless struck from its ‘‘Final Offer’’ the word ‘‘Final’’
and notified the Union of its desires to reconvene collective
bargaining (Tr. 237). Respondent, having struck the word
‘‘Final’’ from the offer, made no other changes in the ‘‘Final
Offer’’ of July 22 (Tr. 238), but told the Union that it would
consider counterproposals from the Union (Tr. 239).
The record, with regard to bargaining on insurance is si-
lent until December 20, 1988. On that date, Respondent
wrote to the Union (G.C. Exh. 4(J)) and confirmed the exist-
ence of a collective-bargaining session on the next day (De-
cember 21). In addition, it specified a desire to have the dis-
cussion center on medical insurance. The letter stated that
Respondent’s proposed changes were based on ‘‘generally
escalating cost of health care,’’ incorporated in the ‘‘final
proposal’’ of July 22, 1988.
In particular, Respondent notified the Union that it desired
to implement the coverage changes effective January 1,
1989. To secure union agreement on the proposed changes,
Respondent offered to increase the amount of the Respond-
ent’s contribution (from $50.35 to $57.33/monthly/family
coverage; from $36.60 to $39.53/monthly/individual cov-
erage). Respondent agreed not to increase the employee con-
tribution except as a result of increased costs and offered to
guarantee 30 days’ advanced notice of any such increase
(G.C. Exh. 4(J)).
As General Counsel notes, Respondent’s insurance offer,
as it had since July 22, contained the following language:
The Company shall have the right to change the iden-
tity of the insurance carrier and, if necessary to effec-
tuate such change, alter the details of policy coverage
and claims procedures. (G.C. Exh. 4(E)).19
At the December 21 collective-bargaining session, Scruggs
said that although everything was open for discussion he
wanted to discuss insurance (and the Union’s job standards
proposal).
The parties are in particular dispute whether Leachman in-
sisted on the Union’s insurance proposal (coverage under the
Furniture Workers Insurance Plan) if the employees ‘‘paid
one penny’’ of the insurance premium; or, whether she said
only that the employees would have ‘‘voice’’ in deciding the
identity of the carrier if they paid ‘‘one penny’’; and that she
said that the carrier ‘‘did not have to be the Furniture Work-
ers Insurance.’’ On my observation of the witnesses, I be-
lieve that credibility lies on the side of Respondent. I draw
this conclusion based not only on my observation of
Leachman and Scruggs but on the tenor of the insurance ne-
gotiations as they proceeded up to this point. Needless to
add, the parties reached no agreement on the insurance pro-
posals.
Nevertheless, at the conclusion of the meeting, Respondent
proposed a further meeting on December 29 and the Union
agreed to telephone Respondent the following day to check
on availability. When Respondent did not hear from the
Union through December 28, it contacted the Union.
Leachman told Scruggs that she would call back but she
failed to do so. He offered to meet the next day and deliv-
ered this request by courier (G.C. Exh. 4(K)). In this letter,
however, Respondent declined to agree with the Union’s po-
sition (Union would not agree to Respondent’s proposed
changes unless Respondent was willing to pay the entire in-
surance coverage cost) and, noting that the Union had had
6 months to study Respondent’s proposed coverage changes,
stated that Respondent would implement the December 20
insurance and premium changes, effective January 1, 1989,
if the Union did not meet with the Company on December
29 to discuss insurance and other contract matters (G.C. Exh.
4(K)).
On December 30, 1988, in a letter to the Union, Respond-
ent stated that it had heard nothing from the Union following
1053LANGSTON COS.
20 It is unnecessary to determine the existence of a bargaining impasse in
the presence of actions constituting contemporaneous bad-faith bargaining.
Richmond Recording Corp. v. NLRB, 836 F.2d 289 (7th Cir. 1987); NLRB v.
Huck Mfg. Co., 693 F.2d 1176 (5th Cir. (1982).
their December 27 telephone conversation and nothing fol-
lowing the December 28 letter. Respondent then advised the
Union that it was implementing the insurance proposals on
January 1, 1989 (G.C. Exh. 4(L)). The insurance proposals
were then implemented.
Respondent notes (R. Br. p. 27) that a notice of the
changes of insurance coverage and deductions were posted
on the Arlington Plant bulletin board and that the changes
made in the Arlington unit with regard to insurance were im-
plemented at the Company’s nonunion facilities (Tr. 1936–
1937; R. Br. p. 27).
On January 4, 1989, the Union, acknowledging receipt of
Respondent’s January 30 letter, notified Respondent (G.C.
Exh. 4)) that it did not agree with Respondent’s ‘‘attempt to
force these changes down the workers’ throats.’’
Discussion and Conclusions
By paragraphs 23(a) and (b) General Counsel alleges that
the Respondent’s December 30, 1988 implementation was
unlawful because it was performed unilaterally without hav-
ing reached a valid impasse in its negotiations and because
it implemented in bad faith. In addition, by virtue of para-
graph 24(b)(6) General Counsel also alleges that Respond-
ent’s insistence in the insurance plan on the reservation of
the right, during the term of the collective-bargaining agree-
ment, to ‘‘change the identity of the insurance carrier and,
if necessary effectuate such change, alter the details of policy
coverage and claims procedures’’ manifested a refusal to bar-
gain in good faith in violation of Sections 8(a)(1) and (5) and
8(d) of the Act, and, together with other violations, were suf-
ficient to set aside the settlement agreement in Case 26–CA–
12392 (par. 28, third consolidated complaint). I agree.
As preliminary matter, it is noted that the General Counsel
does not allege that Respondent’s course of bargaining on its
insurance proposal and the Union’s insurance proposal con-
stitutes bad-faith bargaining. That issue therefore need not be
addressed. Rather the General Counsel cites only the imple-
mentation of December 30 (effective January 1, 1989) and
the reservation of the right to change identity of the carrier
and alter the details of policy coverage and claims proce-
dures as violations.
The parties dispute the existence of good-faith impasse on
September 6. Respondent acknowledges that the Regional
Directors issuance of complaint in October 1988 was the
basis for its decision to resume collective bargaining with the
Union on subjects, inter alia, including the parties’ respective
insurance proposals (Tr. 236).
It is axiomatic that any existing impasse as of the Novem-
ber 16, 1988 resumption of full-scale collective bargaining
on all subjects necessarily broke the preceding impasse, if
any. Southwestern Portland Cement Co., 289 NLRB 1264
(1988).
It is also well settled that an employer violates the duty
to bargain collectively when it institutes changes in employ-
ment conditions without first consulting the Union. It may
also be true that under some conditions, the employer’s
power to alter working conditions in its plant is not contin-
gent on union agreement with the proposed change; but only
on the employer’s obligation to notify the Union before af-
fecting the change so as to give the Union a meaningful
chance to offer counterproposals and counterarguments.
NLRB v. W. R. Grace & Co., 571 F.2d 279, 282 (5th Cir.
1978), as cited in Soule Glass Co., supra. On the other hand,
as noted in Soule Glass, ordinarily, in order for the unilateral
act to not violate Section 8(a)(5), the employer would have
bargained in good faith to impasse on the issue citing NLRB
v. U.S. Sonics Corp., 312 F.2d 610, 615 (1st Cir. 1963).
(a) There is little doubt that the Union had a full oppor-
tunity to bargain on Respondent’s insurance proposal. By
December 30, 1988, it had been on the table and bargained
over since at least June 1988. The Union, in short, wanted
its insurance proposal; Respondent wanted its proposal. Re-
spondent’s December 1988 actions invited continued bargain-
ing on insurance. The Union did not answer Respondent’s in-
vitation. The Union would not surrender on its demand that
the Furniture Workers Insurance Plan be adopted if the em-
ployees paid ‘‘one penny.’’ Respondent wanted control in
order to have ‘‘leverage’’ over the insurer in the payment of
claims. This is ‘‘impasse.’’ Whether it is a ‘‘good faith’’ im-
passe is another matter.
I, resolve the December 30, 1988 impasse issue because
I conclude that Respondent’s insurance proposals on which
it went to December 30 ‘‘impasse’’ and which it imple-
mented as of January 1, 1989, were either unlawful, mani-
fested bad-faith bargaining, the implementation of which fur-
ther violated Section 8(a)(1) and (5) of the Act;20 or were
nonmandatory subjects of bargaining which could not be
lawfully pressed to impasse.
Respondent’s insurance proposal since at least July 22,
1988, and continually thereafter, reserved to Respondent the
right unilaterally to change the identity of the insurance car-
rier, the details of policy coverage and claim procedure.
Health insurance for employees, though funded in part by
employee contributions, is a mandatory subject of bargaining,
see, e.g., Coalite, Inc., 278 NLRB 293, 301 (1986). Reserva-
tion of unilateral control over a mandatory subject of bar-
gaining to otherwise good-faith impasse is not, per se, a vio-
lation of the 8(d) bargaining obligation. I conclude, however,
that where, as here, the contract proposal which goes to im-
passe includes unilateral control over future changes of sub-
stance in the reserved matter, such a proposal, itself, pressed
to impasse, is unlawful or, at least, not a mandatory subject
of bargaining. Compare Colorado Electric Assn., 295 NLRB
607 (1989), with Marina Hotel & Casino, 296 NLRB 1116
fn. 1 (1989). Respondent’s proposed reservation of unilateral
power over future changes in insurance coverage identity of
the insurer and the claims procedures constitutes such unlaw-
ful bargaining because the proposal, pressed to December 30
impasse, would ignore the certified, statutory representative’s
right to be notified and consulted before changes are made
in existing terms and conditions of employment. Absent the
Union’s consent or waiver, the Union has that statutory right.
Thus, while Respondent may bargain to impasse on an insur-
ance proposal without such reservations or while the Union
may consent to or waive its right to consultation on future,
unilateral changes embodied in a contract proposal contain-
ing such reservations, Respondent may not usurp, ab initio,
the Union’s statutory right to consultation and bargaining on
future changes under cover of bargaining to impasse. To do
so, as General Counsel alleges, violates Section 8(a)(1) and
1054 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 In view of the several unfair labor practices found herein, including viola-
tions of Sec. 8(a)(3) and (5) of the Act and a conclusion that Respondent en-
gaged in ‘‘surface bargaining,’’ I have determined that Respondent may not
reach good-faith impasse in future bargaining in the presence of this
unrescinded, unlawfully implemented insurance plan. Storer Communications,
297 NLRB 296 (1989). The unlawfully implemented plan must be rescinded
at the Union’s option.
22 In view of the uncontradicted testimony that the half-bag employees
Nabors, Teamers, Benson, and Harwell as well as Payne (the baler), all wore
union buttons to work in October 1987, it is evident that Langston was refer-
ring to the physically separated half-bag department employees in his reference
to ‘‘troublemakers.’’ I therefore find, contrary to Langston’s denial, that he did
refer to employees as ‘‘troublemakers’’ and that ‘‘troublemakers’’ referred to
the employees in the half-bag department as a whole. ‘‘Troublemaker,’’ of
course, refers to the employees being engaged in union activities. Cf. Fern
Terrace Lodge, 297 NLRB 8 (1989).
(5) of the Act. This occurs either because Respondent
pressed this nonmandatory proposal to impasse or because it
manifested subjective, bad-faith bargaining.
Similarly, to implement such a proposal, as General Coun-
sel alleges, without the Union’s consent, further violates Sec-
tion 8(a)(1) and (5) of the Act. See Colorado-Ute Electric
Assn., 295 NLRB 607 (1989). Impasse (if any) is no defense
since the legal requirement for lawful implementation of
such a proposal is the Union’s consent or waiver, not alleged
good-faith impasse.21
12. Alleged violation of Section 8(a)(3); the discipline
of Josephine Benson
As above noted, half-bag production at the Arlington plant
ceased at the end of 1987. The four sewers of half-bags prior
to cessation of production were Josephine Harwell, Shirley
Teamer, Josephine Benson, and Stewart (Tr. 1361).
Prior to the November 23 election, Benson distributed au-
thorization cards to coemployees at Arlington and began
wearing a union button to work. She also wore a union T-
shirt and a union cap to work on the day of the election.
Commencing January 1988, she served, almost without inter-
ruption, on the Union’s contract negotiating committee miss-
ing only a few of the 30 bargaining sessions.
Immediately before the election, she was present when Re-
spondent’s president, Robert Langston, asked Justine
Harwell: ‘‘What are you doing back here with these trouble-
makers’’? (Tr. 789–836).22
It is therefore clear that Respondent knew or believed that
employees Nabors, Teamers, Benson, Payne, and Harwell
were union ‘‘troublemakers’’ and that the half-bag depart-
ment, in particular, was a center of unionism. Langston knew
this because all these employees wore union buttons openly
(G.C. Br. p. 4; Tr. 647, 706, 834, 1126).
With the end of half-bag production at Arlington, in De-
cember 1987, Benson successfully ‘‘bumped’’ and became a
sewing machine operator in the bulk bag department. She
was in a production-rated job and was required to maintain
daily production reports of her production operations.
On November 15, 1988, Vice President Smith called Ben-
son into his office and told her she was receiving a warning
for inaccurate reporting of production time. In particular,
Smith referred to Benson’s production reports of November
2 and 4, 1988 (G.C. Exhs. 12(a) and (b)). Benson testified
that, during the meeting with Vice President Smith, he told
her that the company had previously warned her and employ-
ees Harwell, Stewart, and Teamer concerning improper re-
porting. (Tr. 862.) Benson denied that any company official
had warned her concerning production reporting prior to this
November 15 meeting.
Vice President Smith ceased being employed by Respond-
ent in January 1989, and did not testify at the instant pro-
ceedings. However, Supervisor Carl Hussey did. He testified
that Vice President Smith and himself spoke with half-bag
employees Shirley Teamer, Dorothy Stewart, Josephine Ben-
son, and Justine Harwell as early as December 1987; that
Smith told these employees that their production report must
be accurate concerning the number of pieces produced during
time spent in the production of half bags. Smith told them,
according to Hussey, that if they were placed on another job,
they had to record the accurate amount of time spent on the
other job as ‘‘down time’’ (Tr. 1359). Hussey also testified
that between this December 1987 admonition by Vice Presi-
dent Smith and November 15, 1988, when Smith again called
Benson into the office, Hussey spoke to Benson on several
occasions concerning her reporting of production (Tr. 1382).
He testified that he could not be specific when he talked to
her about it, but spoke to her about reporting more produc-
tion than he was getting through the production line (Tr.
1382). He did not talk to her about misreporting ‘‘down
time’’ (Tr. 1383). Indeed, he said it was not only Benson,
but the whole hemming department that gave him faulty pro-
duction statistics when he was not getting actual production
from their operations (Tr. 1383). Hussey admitted that he had
never reduced to writing or made any other reports of con-
versations with Benson or any of the other employees con-
cerning improper reporting of production (Tr. 1384–1385).
He testifies that the reason that it was not reduced to writing
was that there was no ‘‘concrete evidence’’ of misreporting
(Tr. 1385). Ordinarily, he took the employees’ ‘‘word’’ for
their production and time because they were on an ‘‘honor
system’’ (Tr. 1385).
On November 15, 1988, however, there were alleged dis-
crepancies on the November 2 and 14 Benson production re-
ports.
With regard to her November 2, 1988 report (G.C. Exh.
12(A)) she reported down time for the period 1:45 to 3 p.m.
in the left-hand column of the submitted production report.
This represented, as I understand it, and as the parties seem
to concede, her actual report of the hours in which she had
‘‘down time.’’
Again, the incentive pay rate is for time spent in produc-
tion; down time is the time listed or time spent not on the
incentive-rated job to which she was assigned. It could be
time spent waiting for materials, for broken sewing machin-
ery, in stacking bags, etc. The greater the down time, the less
time spent in actual production incentive-rated bags and
therefore the creation of a higher rate of unit production.
Higher unit production results in a higher pay rate.
On this same document, however, she claimed, for payroll
purposes, 2 hours and 15 minutes of down time whereas her
recorded actual down time (1:45 to 3 p.m.) is only 1 hour
and 15 minutes. She testified that she actually had 2 hours
and 15 minutes of down time because she was actually work-
ing, she said, on another down time job in addition (Tr. 869–
870); and that when she attempted to explain that she had
spent an extra hour on another down time job, Smith would
not give her a chance to tell him about it (Tr. 870).
With regard to her production report of November 14,
1988 (G.C. Exh. 12(B)), she recorded down time on a par-
1055LANGSTON COS.
ticular job from 9 a.m. to 9:50 p.m. as 1 hour and 50 min-
utes. She testified that it should have been 9 a.m. to 10:50
a.m. and when she tried to tell Smith of this mistake, at the
November 15 meeting, he said he was not concerned (Tr.
863). Furthermore, Smith, in Hussey’s presence, told her that
she could not have produced 425 American Coal Oil bags
from 9:50 a.m. to 1:20 p.m. as her November 14 production
report stated. Smith to her, especially, that she could not
produce the 425 large American Oil Company bags without
a helper. However, Benson said she did not work on Amer-
ican Coal Oil bags that day; and told Smith that the 425 bags
was not only accurate but that she had a helper (Tr. 867).
Furthermore, she testified that she told him she was not on
American Oil Company bags but on a different job which
Smith himself had recorded on the production report when
he spoke to her on November 15 (Tr. 867; G.C. Exh. 12(B)).
With regard to Smith having previously warned her,
Harwell, and Stewart about misreporting on the production
sheets, Benson denied that there had either been an oral or
written warning (Tr. 862). Nor had any other supervisor
warned her about misreporting (Tr. 862–863).
At the November 15 meeting, Benson admits that Smith
told her that she was receiving a written warning but she de-
nied that he ever gave her a written warning (Tr. 871). On
the other hand, Respondent memorialized the November 15
meeting and there appears the statement (R. Exh. 6) that not
only was she told she was being given a final written warn-
ing on misrepresenting production, but that she would be ter-
minated if it was not stopped.
a. Benson’s suspension on November 22, 1988
On November 22, 1988, Benson was suspended for 3 days
for allegedly making errors on reports submitted on Novem-
ber 17, 18, and 21, 1988 (G.C. Exhs. 12(C) and 12(D)).
On November 22, she was called into the office by Super-
visor Little and Wargo, the personnel director. They had the
three production reports in hand at that time. Her November
21, 1988 production report, showed that she had recorded
205 sewing operations in the period 7:30 to 9:15 a.m. ‘‘on
and off.’’ When Supervisor Tony Little asked her if she had
done 205 bags in that period, she told him that she had done
the bags ‘‘on and off’’ (Tr. 880–881); that she had indeed
sewn 205 bags but had been interrupted in the sewing by
Plant Manager Bill White who asked her to perform other
jobs. Little was dissatisfied with her explanation and told her
that he wanted her production reports to show production so
that Respondent could understand what she was talking about
(Tr. 882). When he remonstrated that her reporting of 2
hours and 15 minutes for loading the table was ridiculous
(Tr. 882) Benson continued to affirm that she had recorded
her time ‘‘minute per minute,’’ and offered to show him her
own private records. He refused to see her private records
and told her that she had recorded inaccurate down time (Tr.
882). She told him that her down time was greater than oth-
ers because she had to walk to get her work whereas the
plant manager brought work for other people right to the
sewing machine (Tr. 882). She insisted on recording as down
time the amount of time she spent going to and from areas
for picking up work (Tr. 882). She testified that Supervisor
Little did not want to hear her argument that ‘‘down time is
for loading tables, counting bags and picking up the bags’’
(Tr. 883).
With regard to the reports of November 17 and 18, 1988
(G.C. Exh. 12(C)), Benson had claimed 70 minutes for load-
ing a table. But Supervisor Little said that her reporting was
inaccurate and he wanted her reports so that Respondent
could understand her reports (Tr. 889). When Benson offered
to redo the report, he said she could not redo it because Re-
spondent wanted no mistakes rather than redoing of faulty re-
ports (Tr. 889).
At the end of the conversation, Wargo told her that he
wanted her to clock out and he did not want her doing any
more of Langston’s work (Tr. 889). She did so.
On November 23, 1988, the next day, she sought entry
into the breakroom for the purpose of attending a meeting at
which the union representatives were to discuss her dis-
cipline with Respondent but she was denied entry into the
area. She testified that on other occasions, she had been per-
mitted to use the breakroom on days that she was not on
duty; that Respondent knew of this and had not prevented
her from entering the breakroom. She also testified that non-
employees were permitted to join her and her sister in the
breakroom from time to time.
Hussey admitted that he had never reduced to writing or
made any reports of any conversations with Benson or any
other employee concerning improper reporting of production
(Tr. 1384–1385). He testified that they never had concrete
evidence of wrongdoing before (Tr. 1385). He also testified
that contrary to Benson’s testimony, she did not have ma-
chine trouble (Tr. 1386) as she had claimed on the Novem-
ber 14, 1988 report (G.C. Exh. 12)), because he had checked
with the machine mechanic. The machine mechanic told him
that he had not worked on her machine all day (Tr. 1387–
1388). He admitted that Benson insisted that the machine had
been down and that she had produced the number of items
reported on reduction reports (Tr. 1390). In any event,
Hussey testified, as above noted, that although he may have
given oral warnings to other employees about misreporting
their production (Tr. 1374), there had never been any written
warnings or suspensions to such other employees (Tr. 1375).
Respondent’s sole office clerical, secretary Linda Medal, was
employed at the Arlington plant from March 31, 1987,
through January 20, 1989. Among her duties was to check
the daily production reports of the incentive-rated employees
(Tr. 1608). She did the actual calculating of the incentive
rate from the daily and monthly production reports (Tr.
1608–1609). In particular, with regard to her review of the
daily production report for posting on the monthly produc-
tion report, if there was anything ‘‘that does not look right,’’
she sent the daily production report to the manager with re-
gard to those incentive employees (Tr. 1609). She reviewed
every one of the incentive production reports for the accu-
racy of the calculations (Tr. 1609–1610) and it was she who
spotted the apparent errors on the Benson production reports.
She testified she gave the Benson production reports either
to Carl Hussey or to George Smith. The plant manager han-
dles the discrepancies and, after resolution of the discrep-
ancies, the production report is returned to Medal (Tr. 1614).
Medal testified that she had never seen as many as four
erroneous reports from a given employee in any 1-month pe-
riod like Benson’s (Tr. 1624–1625). She recalled that one
employee (Erma Thompson) (Tr. 1647) persistently reported
each workday as consisting of 8-1/2 hours. When Medal
asked her where she got the 8-1/2 hours from (Respondent
1056 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
23 Respondent failed to include in its brief a statement of facts or a discus-
sion of the allegation with regard to discrimination against Benson.
pays only for 8 hours), Thompson told her that she records
the half-hour lunch hour as part of her down time. With this
explanation Medal simply did not pay her the extra half-hour
notwithstanding that Thompson continues to report an 8-1/2-
hour day as her workday (Tr. 1649).
Another employee’s (Woodland) daily production sheets
were also a matter of concern to Medal because Woodland
failed to indicate the amount of time she spent on each job.
This made it impossible to calculate the amount of pay she
was entitled to for each of her incentive-rated production
jobs (Tr. 1650–1651). In addition, Woodland’s daily produc-
tion sheets failed to indicate which job the claimed down
time applied to (Tr. 1651). These Woodland reporting errors
occurred in March 1988, (G.C. Exhs. 22–25) and Medal re-
ported Woodland’s erroneous production reports to either
Plant Manager Hussey or General Manager Smith (Tr. 1652).
After Medal spoke to Woodland about her misreporting, she
not only reported total down time but indicated the segments
of down time (Tr. 1655). On the other hand she has contin-
ued to turn in reports which reflect her old way of reporting
which failed to show the segments of down time referring to
particular jobs. Medal testified that all that Respondent did
when this relapse was noted was to ‘‘remind her’’ of her im-
proper reporting (Tr. 1655).
Secretary Medal did not know whether Woodland was
ever disciplined for her repeated submissions of inaccurate
production reports on her incentive-rated jobs, but it is Med-
al’s obligation, as part of her job, to be aware of discipline
administered to employees (Tr. 1657). She knew that Benson
had been disciplined. She did not know of any other employ-
ees who were disciplined for turning in improper production
reports (Tr. 1658). The only employee who she knew was
disciplined was Benson (Tr. 1658).
b. Discussion and conclusions
In substance, by virtue of paragraph 25 of the third con-
solidated complaint, the General Counsel alleges, as viola-
tions of Section 8(a)(3) and (1) of the Act, a November 14,
1988 written warning Benson, the November 22 suspension
of Benson; and the November 23, 1988 denial to Benson of
access to the employee break area.
(1) The elements of a prima facie case are present here
with regard to all three of the allegations of Respondent’s
conduct with regard to Josephine Benson. Thus, the record
demonstrates Respondent’s animus against unions, in general,
and the Charging Party, in particular. Josephine Benson was
in the half-bag department, identified by Robert Langston as
the department containing the [union] ‘‘troublemakers.’’ In
addition to her openly wearing the union button and other
union identification prior to the election, it is Benson’s
uncontradicted and credited testimony that she was regularly
an employee member of the Union’s collective-bargaining
committee and attended all but two of the approximately 30
collective-bargaining sessions between January 15, 1988, and
February 1989. Thus the prima facie case consists of Re-
spondent’s animus and its obvious knowledge of Benson’s
union activities prior to the November 1988 discipline which
it administered against her.
(2) Weakening the prima facie case, however, is the fact
that in respondent’s prior dealings with the ‘‘troublemakers’’
in the half-bag department, it had discriminated, according to
General Counsel, against members other than Benson. In par-
ticular, Benson was awarded work when other of the union
activists were not. If that is so, Respondent was not nec-
essarily singling out Benson, from among the union activists,
for its unlawful attention. I refer to the allegation of violation
of Section 8(a)(3), supra, where Teamer and Nabors were not
given overtime on October 10, 1987, but half-bag department
union supporters Harwell, Stewart, and Benson were awarded
overtime. On the other hand, however, the law is that Re-
spondent need not single out the most prominent union activ-
ists; it may nevertheless be guilty of unlawful discrimination,
in violation of Section 8(a)(3) and (1) of the Act, if it dis-
criminates against an employee whom it knows to be a union
activist notwithstanding that she is not the most prominent
one in the group.
(3) Respondent’s defense23 apparently rests on the position
that Respondent may not be saddled with Benson’s repeated,
erroneous production reports even after she had been pre-
viously warned. In this regard, General Counsel did not at-
tempt to refute Respondent’s evidence that not only Benson
was warned, but Harwell, Stewart, and Teamer were also
warned for improper and erroneous production reports. Re-
spondent is quite correct in asserting that Benson’s union ac-
tivities and union sympathies may not create a shield against
discipline for repeated improper work, especially since Re-
spondent, on this record, had previously warned her of her
submissions of improper reports. That Respondent also
warned the other union activists certainly adds to the conclu-
sion that Respondent was not singling out Benson, particu-
larly not singling her out because of her union activities.
(4) The record, however is barren of any suggestion that
Respondent ever took action other than verbal warnings
against any employee for erroneous reporting on the produc-
tion sheets involving incentive jobs. The testimony of Plant
Manager Hussey and of office clerical Medal demonstrates
that Respondent had employees who, in the past, submitted
erroneous reports and had suffered nothing other than warn-
ings. In particular, both Hussey and Medal admit that there
had never been a written warning, much less further dis-
cipline like suspension, ever meted out to any employee for
such misconduct. Furthermore, it was Medal’s business obli-
gation to know of any such punishment and she could not
recall it. Hussey was even more particular in recalling that,
in fact, there had been none. The most telling evidence sug-
gesting disparate treatment of Benson was Medal’s testi-
mony, as General Counsel noted, that employee Woodland
not only repeatedly submitted production reports without
specifying the down time, but after Medal warned her that
such conduct was improper and such conduct temporarily
changed, Woodland nevertheless slipped back into her old
habits and improperly reported down time. No action was
taken against Woodland: ‘‘all we do is remind her’’ (Tr.
1665).
(5) Respondent is under no obligation to tolerate employ-
ees who misreport their hours, thereby gaining improper in-
come from showing greater rate of production in a given
amount of the time and thereby increasing their incentive
rates improperly. Respondent, a fortiori, should not be
obliged to put up with such misconduct after warning an em-
ployee of it and the employee nevertheless continues in that
1057LANGSTON COS.
action. But what Respondent may not do is treat employees
disparately on the basis of their union activities. That is for-
bidden ‘‘discrimination’’ within the meaning of Section
8(a)(3) of the Act.
In view of Respondent accepting the continued erroneous
production reports of Erma Thompson to the present day,
and having permitted employee Woodland to slip back into
erroneous production reporting habits with nothing more than
reminding her to cease erroneous reporting, Respondent may
not be heard to say that its treatment of Josephine Benson
was not disparate. The testimony that Benson’s misreporting
was more egregious than the other employees does not stand
up to the record. For Woodland not only had a continuous
series of reports, like Benson, which were erroneous, but she
was permitted, without further Respondent retaliation, to slip
back into erroneous reporting habits with no action taken
against her other than ‘‘reminding’’ her. Benson received a
written warning and then a disciplinary suspension.
Respondent, on this record, was under an obligation to
submit, if necessary, rebuttal evidence, if it could, to dem-
onstrate why Woodland and Thompson were treated dif-
ferently than Benson. Perhaps Benson’s acts, unlike Wood-
land and Thompson, cost money. If that was the distinction,
Respondent has not told us. Respondent failed in its proof.
It is on the basis of evidence of this disparate treatment,
unrebutted, that I find that Respondent’s unlawful written
warning of November 15 (R. Exh. 6) and its November 22
suspension of employee Benson, a prominent union sup-
porter, because of her misreporting, that Respondent violated
Section 8(a)(3) and (1) of the Act. Respondent in the pres-
ence of a prima facie case failed to establish that it would
have taken this disciplinary action regardless of Benson’s
union activity. NLRB v. Transportation Management Corp.,
462 U.S. 393 (1983).
With regard to the allegation that Respondent violated
Section 8(a)(1) in denying Benson access to the employee
break area on November 23, 1988 (when the Union, on her
behalf, was contesting the above written warning and suspen-
sion), I recommend that the Board dismiss such allegation.
The most that General Counsel proved is that off-duty em-
ployees were permitted access to the breakroom. General
Counsel did not prove that suspended employees were denied
access to the breakroom. Where the proof showed that
strangers were allowed into the breakroom, there is no show-
ing that Respondent knew of their presence. That Josephine
Benson may have been unlawfully suspended does not
change the result. Respondent’s property right was sufficient
to bar her entrance until such time as there was a resolution
of whether she had been improperly suspended. Cf. Jean
Country, 291 NLRB 11 (1988). I therefore shall recommend
to the Board that that allegation (par. 25(c)) be dismissed
even if, as I have found, Respondent discriminated against
Josephine Benson in issuing the underlying written warning
and the underlying suspension. See New Process Co., 290
NLRB 704 (1988).
13. Alleged violation of Section 8(a)(3) and (1) of the
Act; 1-day layoff of employees Benson, Stewart,
Nabors, and Sellers
By paragraphs 7, 8, and 9 of General Counsel’s complaint,
issued March 17, 1989, General Counsel alleges that a 1-day
layoff on February 15, 1989, of employees Benson, Stewart,
Nabors, and Sellers was discriminatory and a violation of
Section 8(a)(1) and (3) of the Act.
In February 1989, Respondent was no longer manufactur-
ing half-bags at the Arlington plant. These four employees,
formerly in the half-bag department, were now hemmers,
sewing bulk bags. On February 14, 1989, with two hemmers
working as inspectors instead of hemming, work was slow
in the hemming section (Tr. 1279). Plant Manager Norman
Neville called in four hemmers (Benson, Stewart, Nabors,
and Kathleen Sellers) and told them that they were being laid
off for a day due to a lack of work (Tr. 848). All four of
these hemmers had previously performed inspection work.
As General Counsel notes, Respondent did not use plantwide
seniority in the layoff; rather, it laid off four of the hemmers
with less seniority than hemmer Justine Harwell. Harwell
was acknowledged by all the employees as the most senior
hemmer. Neville told the employees who were about to be
laid off that Harwell would be retained for work in case
there was an emergency order. The employees were told to
report for work on the day following the 1-day layoff, i.e.,
on Friday, February 16.
On the next day, February 15, the four hemmers did not
report for work. On that day, there was no hemming except
possibly by Harwell who had been retained. There were not
enough cut panels for the retention of any large number of
hemmers (Tr. 1757–1759).
By 1 p.m. February 15, however, Neville realized that on
the basis of current inspection, the inspectors were not get-
ting out enough bags to meet a rush order. He told the in-
spectors that they would either have to get out more bags or
would have to stay over due to the company’s obligation to
complete the rush order.
Prior to Neville notifying the four employees of the layoff
of February 15, Nabors and Harwell continued to wear union
insignia. While Harwell remained on the union negotiating
committee, Nabor did not. Although it is not entirely clear
that Nabors ceased being on the negotiating committee prior
to February 14 (Tr. 691), it is clear that Harwell, the most
senior employee, and a current member of the negotiating
committee, was specifically chosen to work notwithstanding
the layoff of the other employees.
In addition, Shirley Teamer, known to Respondent as the
chief union steward, worked on the day of the layoff whereas
the others did not (Tr. 718–721). It may be recalled that
Teamer was one of the ‘‘troublemakers’’ and worked on this
same day that Nabors, no longer a member of the bargaining
committee, was laid off.
Discussion and Conclusions
General Counsel’s argument (Br. p. 44) is exclusively di-
rected to the conclusion that Respondent showed no business
justification for the February 15, 1989 layoff. General Coun-
sel argues that the selection of the laid-off employees was
based on those who had demonstrated their support of the
union. He directs most of his attention to the fact that Plant
Manager Neville laid off the four employees in spite of the
rush order on which the employer was working and the
pendency of 21 other orders. General Counsel notes that the
four laid-off employees were capable inspectors and that,
comparing the February 15, 1989 layoff to the October 10,
1987 refusal to permit Shirley Teamer and Rosie Nabors to
work overtime, the same motivation should apply.
1058 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I have concluded, elsewhere, that Respondent’s animus,
flowing directly and explicitly from its president, Robert
Langston, together with its knowledge of the union activities
of these employees, brings otherwise work-related decisions
within the orbit of a prima facie case. Wright Line, 251
NLRB 1083 (1980), enfd. on other grounds 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Under the
Wright Line analysis, however, Respondent may defend ei-
ther rebutting the General Counsel’s prima facie case of un-
lawful discrimination or by establishing that it would have
taken the same action regardless of the protected activity
supporting the prima facie case. NLRB v. Transportation
Management Corp., 462 U.S. 393, 400–401 (1983). See NKC
of America, 291 NLRB 683 fn. 4 (1988).
With regard to rebutting General Counsel’s prima facie
case, I conclude that it has become so weakened as to bring
the case within the legal conclusion that, on a preponderance
of the credible evidence, the prima facie case of discrimina-
tion has been effectively rebutted. In this regard, there are
two outstanding factors which substantially rebut the prima
facie case: (1) Harwell was specifically chosen as the em-
ployee to work during the layoff of the four others notwith-
standing that, at the time of the layoff, Harwell had become
an employee member of the union negotiating committee
whereas Nabors had ceased being on the committee and thus
to some extent had ceased demonstrating an element of open
union support Respondent’s clear and definite selection of
union-active Harwell to work while laying off nonactive
Nabors, sets off the distinction contrary to the General Coun-
sel’s showing of prima facie discrimination. In addition, (2)
Shirley Teamer, the chief steward continued to work notwith-
standing Respondent’s lesser need for employees. Teamer, it
must be recalled, was allegedly the subject of Respondent’s
unlawful attention in an October 10, 1987 incident. Here, she
remained at work at the same time that Nabors had been laid
off.
In short, Respondent’s retention of Teamer and Harwell in
employment, these employees being among the most note-
worthy union supporters, in my judgment, has a substantial
negative effect on the strength of General Counsel’s prima
facie case. There has been no reason advanced why Re-
spondent was ‘‘discriminatory’’ against lesser union support-
ers and not laying off prominent union advocates. I believe
that the prima facie case has been so weakened by Respond-
ent’s conduct contemporaneous with the alleged unlawful
layoff, as to not serve as a proper vehicle for finding a viola-
tion of Section 8(a)(3) and (1) of the Act, i.e., a preponder-
ance of the credible evidence fails to support proof of unlaw-
ful discriminatory action.
Moreover, I conclude that notwithstanding any prima facie
case, thus weakened, Respondent has supported its burden to
show that, in any case, it laid off the four hemmers, notwith-
standing any prima facie case, for good and sufficient busi-
ness reasons. NLRB v. Transportation Management Corp.,
supra. Thus notwithstanding that the four laid-off employees
could have performed inspection work, General Counsel did
not undermine Respondent’s testimony that there was not
enough hemming work for them; and that Respondent had a
sufficient number of employees on hand to perform the in-
spection work. The fact that Plant Manager Neville discov-
ered, shortly after noon, that he needed to have employees
turn out more work or work them overtime, is not sufficient
to show that on the previous day, at the time of the layoff
decision, he knew of this possibility. There is no proof that
Respondent could reasonably have foreseen the eventuality
of a lack of production by the existing inspectors.
In short, I conclude both that Respondent effectively rebut-
ted General Counsel’s prima facie case; and in addition that
Respondent proved that it took the action of laying off the
four hemmers for good and sufficient business reasons whol-
ly apart from the existence of any prima facie case. The alle-
gations of an unlawful layoff of four employees on February
15, 1989, should be dismissed as unproven.
14. Alleged violation of Section 8(a)(3) and (1) of the
Act in Respondent’s conduct against employee
Cyrus A. Payne
In a complaint issued during the hearing in this matter, the
General Counsel alleged, further, that on March 3, 1989, Re-
spondent, by refusing to allow its employee, Cyrus Payne, to
alter his scheduled working hours, violated Section 8(a)(3)
and (1) of the Act.
Cyrus Payne is a baler in the half-bag department. He
wore union button before the election and was asked by
Plant Manger White to remove the button (Tr. 1128). First
stating that he had a right to wear the button, Payne never-
theless complied. A short time thereafter, White told Payne
that he could ‘‘put the damn button back on’’ (Tr. 1128). On
the day of the election, Payne wore a union T-shirt and a
union cap at work (Tr. 1130). He was also an employee-
member of the Union’s contract negotiating committee and
attended all but 2 or 3 of the 35 collective-bargaining ses-
sions.
The facts concerning the alleged discrimination against
Payne are not in dispute.
Under Federal auspices, Payne became a student in a
truckdriving school. The course of study was divided into
‘‘home study’’ and actual truckdriver training. After Payne
completed the home study section of the course, he received
notice from the school (G.C. Exh. 14) that he was to begin
his actual truckdriver training on March 11, 1989. The notice
specified that he would be trained on both Saturdays and
Sundays for eight consecutive weekends (G.C. Exh. 15).
Payne took the notice to Plant Manager Neville and said
that he would like to make weekly arrangements to leave
early on Friday and return early on Monday for truckdriver
training (Tr. 1138–1139). Neville told him that he did not be-
lieve that Respondent would permit him to do so but would
first have to make a phone call (Tr. 1139) and would get
back to him. On the next day, on a Friday, in early March
1989, Neville told Payne not to take the action ‘‘personally’’
but handed Payne a letter from Respondent (G.C. Exh. 16).
The letter, dated March 1989 states:
In response to your request for time off for the next
eight (8) consecutive Fridays and partial Mondays be-
ginning March 10, 1989, I must remind you that your
primary responsibility is to attend to your duties every
working day.
While I applaud your initiative to learn a new skill;
at this time our production schedule will not allow us
to release you for such extended times.
1059LANGSTON COS.
It is not disputed that Respondent employs other employ-
ees who have worked as balers. Ray Horne, Ken Harwell,
and Wayne Wherry had, on prior occasions, performed
baling work. Harwell had been a full-time bailer (Tr. 1219).
General Counsel’s evidence of discriminatory motive rests
substantially on testimony of alleged disparate treatment ob-
tained from a former employee, Otha Shaw. Shaw was a full-
time employee in the period 1986 through mid-April 1988,
when she ceased working to become a full-time student.
In April 1988, Shaw rejected Plant Manager Hussey’s in-
vitation to return to work because she was going to school.
When he called her again in October 1988 (Tr. 1187), she
agreed to return to work as long as it did not interfere with
her school schedule. Hussey told her that she could make her
own hours and Respondent would work around her school
schedule (Tr. 1187). Shaw testified that she then worked ir-
regular hours, sometimes from 10 a.m. to 4 p.m.; sometimes
she would take 3 days off and just work 2 days during the
week (Tr. 1188–1189). She took maternity leave in the
spring of 1989.
Shaw, however, did not work on the production line. Rath-
er, she was the only person employed as a ‘‘vinyl and spe-
cialty bag maker’’ (Tr. 1195). On specialty bags, she made
the whole bag, performing all functions except the inspec-
tion. On the other hand, she admitted that when other em-
ployees had a day off or they needed someone to fill in and
she did not have any specialty bags to work on, she would
engage in regular production (Tr. 1192).
Specialty bags are sample bags. Only two or three are
made for particular customers (Tr. 1198). Unlike production
bag makers, Shaw not only cuts the bag but assembles it (Tr.
1200), and is often obliged to read a specification sheet (Tr.
1203). She ordinarily worked 90 percent on vinyl bags and
10 percent on specialty bags (Tr. 1204).
Discussion and Conclusions
General Counsel’s case rests on the alleged disparate treat-
ment accorded employee Otha Shaw who manifested no
union sympathy (she said she was neither for nor against the
Union and never wore union insignia) compared to Cyrus
Payne, a known union supporter.
General Counsel’s case of disparate treatment relies on the
assertion that Respondent should have exercised its discretion
in granting Payne the requested time off because, in permit-
ting Otha Shaw to ‘‘work around’’ her scholastic schedule,
Respondent had exercised its discretion in permitting an em-
ployee time off in order to work irregular hours. General
Counsel requests the drawing of an inference of unlawful
motivation because Respondent did not exercise similar dis-
cretion in granting Cyrus Payne time off to work around his
educational requirement.
While it is true that Respondent had other employees who
were capable of performing the work of a baler, the cases
of Otha Shaw and Cyrus Payne are so dissimilar in terms of
what work they actually performed, that it cannot be said
that there was disparate treatment. Thus, part and parcel of
Otha Shaw’s job was that her presence or absence would not
disrupt production. She created vinyl and specialty bags at
her own rate without reference to, much less interfering with,
the production and shipment of bulk bags. Indeed, Otha
Shaw returned to work only as long as it did not interfere
with her studies (Tr. 1187) and that arrangement was made
a condition of her return to work at all. On the other hand,
Cyrus Payne’s work was intimately concerned with the pro-
duction process since he was Respondent’s only full-time
baler. To remove other employees, such as Horn, from their
assigned work to become the substitute baler, would mean a
shifting of employees on the production line to fill Horn’s
spot or the work of any other employees assigned to the
work of a baler. It is apparent, therefore, that Respondent
properly asserts that in dealing with the cases of Shaw and
Payne, Respondent was dealing with dissimilar situations:
Shaw, a specialty employee, conditioned her accepting Re-
spondent’s offer of employment on her ability to set her own
hours of work; whereas Payne was a production employee
whose function as a baler must fit in with Respondent’s pro-
duction line of bulk bags. The employee situations being
substantively dissimilar, there can be no conclusion of dis-
parate treatment in like cases from which an inference of un-
lawful motivation might be drawn based in the presence of
Respondent’s union animus, together with its knowledge of
Payne’s considerable union activities. Moreover, there is no
evidence of any independent unlawful motivation with regard
to Respondent’s refusal to grant Payne special time off for
his driver training.
The allegations of unlawful discriminatory treatment of
Cyrus Payne constitute the sole substantive allegations in the
separately issued complaint in Case 26–CA–13115. It is my
recommendation that this complaint be dismissed in its en-
tirety.
15. Alleged violations of Section 8(a)(5)
Surface Bargaining
In paragraph 26 of the third consolidated complaint, the
General Counsel alleges that Respondent ‘‘by its overall con-
duct’’ (including General Counsel’s allegations of the March
15, 1988 transfer of unit work from Arlington to Memphis;
Respondent’s failure to provide information to the Union re-
garding the transfer of such unit work; the failure to furnish
the Union with time studies; by direct dealing with employ-
ees, bypassing the union; by unlawfully implementing
changes in the employees’ insurance plan; by failing to meet
with the Union between September 6 and November 16,
1988, at a time during which Respondent declared the exist-
ence of an impasse; by Respondent’s withdrawal of its agree-
ment on holidays; by failing to grant to its unionized em-
ployees the Section 125(d) Federal Tax Code option; by in-
sisting on its right to change the identity of the insurance
carrier and the terms of insurance; and with regard to alleged
arbitrary and shifting positions with regard to the issue of
union dues checkoff), engaged in bad-faith bargaining.
In support of its assertion, General Counsel argues that the
Board’s precedent in Atlanta Hilton & Tower, 271 NLRB
1600, 1603 (1984), and Houston County Electric Coopera-
tive, 285 NLRB 1213 (1987), demonstrates that Respondent’s
conduct meets the Board’s criteria to infer the existence of
surface bargaining. In particular, General Counsel lists the
‘‘seven traditional indicia of surface bargaining . . . .’’
Houston County Electric Cooperative, supra, as they appear
in Atlanta Hilton & Tower, supra: delaying tactics, unreason-
able bargaining demands, unilateral changes in mandatory
subjects of bargaining, efforts to bypass the union, failure to
designate an agent with sufficient bargaining authority, with-
1060 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
24 Respondent has failed to brief the issue of Respondent’s alleged surface
bargaining. This may flow from its conclusion that all the allegations of all
the several complaints are without merit and that it did not violate the Act.
drawal of already agreed-upon provisions, and arbitrary
scheduling of meetings. General Counsel urges the existence
here of five of the seven ‘‘traditional indicia’’ and argues
that an inference of surface bargaining flows therefrom.
On the other hand, all cases of alleged surface bargaining,
at bottom, are factually idiosyncratic. This case forms no ex-
ception. For instance, General Counsel would have me rely
on Plant Manager Hussey’s statement to employees that as
soon as Respondent got rid of the Union, they would get a
pay raise. I have found, as General Counsel alleged, that
such conduct demonstrates that Respondent has no interest in
bargaining in good faith with the Union and led the employ-
ees to believe that Respondent held in its own hands the full
responsibility for granting pay raises to employees. I con-
clude, in agreement with General Counsel, that such conduct
amounts to an effort to undermine the Union and, indeed to
bypass the Union in granting employees wage relief, all in
violation of Section 8(a)(5) and (1) of the Act. But Hussey’s
conduct, while unlawful, is not the type of studied employer-
sponsored bypassing that Atlanta Hilton & Tower, supra,
contemplates as one of the indicia of bad-faith bargaining. It
is the action, albeit of the plant manager, of a supervisor
talking to a few individuals rather than Respondent acting on
a unitwide basis to bypass the Union and to undermine the
union’s authority. It is such latter activity which would con-
stitute, in my judgment, an activity demonstrating bad-faith
bargaining. Hussey’s conduct, in my judgment, does not
itself demonstrate surface bargaining, notwithstanding that it
cannot be permitted to go unremedied. It is, however, a dem-
onstration of Respondent’s disregard of, and contempt for, at
a high managerial level, the existence of the Union as a stat-
utory bargaining partner.24 Hussey did not get the idea of
‘‘once we get rid of the Union’’ from nowhere. That came
from Langston.
To decide whether an employer is bargaining in good
faith, the Board is obliged to look at the sum of the evi-
dence, not merely the pieces, NLRB v. Stanislaus Importing
Co., 226 F.2d 377 (9th Cir. 1959):
A state of mind such as good faith is not determined
by a consideration of events viewed separately. The
picture is created by a consideration of all the facts
viewed as an integrated whole.
Consistent with General Counsel’s allegation of surface
bargaining, however I conclude that Respondent, in violation
of Section 8(a)(5) and (1) of the Act, did engage in mere
surface bargaining. In this regard, I choose to characterize
Respondent’s conduct as merely engaging in a game of ‘‘cat
and mouse’’ with the Union, coming to apparent agreement
on eight or nine minor matters, see generally General Coun-
sel’s Exhibit 3(H) (recognition, company-union relations, call
in pay, overtime, payday, jury service, first aid cabinet, sav-
ings provisions, sick pay, bereavement pay) and not coming
to agreement on the major issues (management rights, no-
strike no-lockout, union stewards, union visitation, grievance
and arbitration, seniority, job vacancies, layoff and recall,
hours of work, meal and rest periods, wages, vacations, holi-
days, insurance, pension and retirement, leaves of absence,
discipline and discharge, plant rules, substance abuse, plant
safety and security, physical examination, temporary job as-
signments, job classifications and duties, special categories of
employees, and duration and termination of agreement).
In reaching the conclusion that Respondent engaged in
surface bargaining, it is unnecessary in this case, to discuss
the ‘‘reasonableness’’ of Respondent’s substantive bargaining
positions or couching them in terms of offers ‘‘which no self
respecting union could be expected to accept.’’ See, for in-
stance, NLRB v. Tomco Communications, 567 F.2d 871, 883–
884 (9th Cir. 1978). Rather, here, the basis for this conclu-
sion rests on Respondent’s unequivocal statements of union
animus prior to the election and away from the bargaining
table and its bargaining posture with regard to the violations
of Section 8(a)(5) and (1) particularly found herein.
There can be no question that Respondent’s expressions of
union animus before an election are not a dispositive guide
to its willingness to bargain in good faith once the union is
certified as the statutory bargaining representative. On the
other hand, such statements of animus from Respondent’s
president, the chief operating officer, cannot be lightly dis-
missed. They must be placed in the perspective of analyzing
an entire matrix of facts from which an inference of bad-faith
bargaining is either found or rejected.
What cannot be lightly rejected, in this case, is the
preelection statement to all unit employees of Respondent’s
highest officer, President Langston, that he was aware of Re-
spondent’s obligation to bargain in good faith if the Union
won the election; but also his admonition to his employees,
that in such event, the Union might walk away (as a union
had done at the Memphis plant) or it might take 8 to 10
years for them to get a contract. The futility in employees’
selecting a union and the futility of bargaining with Respond-
ent could not be more clearly made know to Respondent’s
employees and to the Union. That President Langston may
have illustrated his remark about ‘‘8 to 10 years for a con-
tract’’ in terms of what other employers had done, does not
disguise the employer or make his homily any the less in-
structive of Respondent’s state of mind in going into and in
continuing negotiations with the Union should it be selected.
Further, when the plant manager thereafter speaks of pay
raises to unit employees after Respondent gets rid of the
union, he is merely parroting his president.
Equally, there can be little doubt that the obligation to bar-
gain collectively does not compel either party to agree to a
proposal or require the making of a concession, NLRB v.
American National Insurance Co., 343 U.S. 395, 404 (1952);
29 U.S.C. § 158(d). Nor may the Board directly or indi-
rectly, compel concessions or otherwise sit in judgment on
the substantive terms of collective-bargaining agreements.
H. K. Porter v. NLRB, 397 U.S. 99, 106 (1970). The Board
is forbidden to compel agreement when the parties are unable
to agree, for such action would violate the fundamental
premise on which the act is based: private bargaining under
government supervision of the bargaining procedure, without
any official compulsion over the terms of the contract (H. K.
Porter, supra, 397 U.S. at 108). As the Board stated in
Rescar, Inc., 274 NLRB 1, 2 (1985):
It is not the Board’s role to sit in judgment on the sub-
stantive terms of bargaining, but rather to oversee the
1061LANGSTON COS.
process to ascertain that the parties are making a sin-
cere effort to reach agreement.
I have nevertheless concluded (1) that Respondent bar-
gained in bad faith, violating Section 8(a)(5) of the Act, by
withdrawing from or repudiating its agreement on holidays
while bargaining in or about November 1988; (2) that Re-
spondent, in violation of Section 8(a)(5) and (1) of the Act,
sought to impasse, and then implemented, unilateral control
over future changes in the identity of the insurance carrier,
the right to unilaterally change policy coverage and the right
unilaterally change claim procedures thereunder; (3) Re-
spondent violated Section 8(a)(5) and (1) of the Act by refus-
ing to bargain in good faith with the Union on a dues-check-
off clause by rejecting checkoff on grounds demonstrating no
legitimate reasons for its position; and (4) Respondent, in
violation of Section 8(a)(3) and (1) of the Act, issued a dis-
criminatory and unlawful written warning to its employee,
Josephine Benson, in or about November 15, 1988, and
thereafter suspended her on November 22, 1988, in violation,
again, of Section 8(a)(3) and (1) of the Act.
When the above four findings of violation of Section
8(a)(5), (3), and (1) of the Act are joined by Respondent’s
plant manager’s unlawful statement to a handful of employ-
ees that they could expect a raise when Respondent gets rid
of the Union, and by Langston’s prior, open union animus
and his advising the employees that he would ‘‘go through
the motions’’ for 10 years, there is an unmistakable matrix
of facts which, while they do not precisely meet the seven
‘‘traditional indicia of bad-faith bargaining’’ mentioned in
Atlanta Hilton & Tower, 271 NLRB 1600, supra, they do,
nevertheless, indicate that the Respondent was not making a
sincere effort to reach agreement. In short, an examination of
Respondent’s preelection admonitions, the content and proc-
ess of Respondent’s contract proposals and the method of its
dealing with the Union, demonstrates that Respondent’s bar-
gaining posture was designed and intended to frustrate agree-
ment notwithstanding the minor agreements already reached.
Compare Rescar, Inc., 274 NLRB 1 (1985), with Harrah’s
Marina, Hotel & Casino, 296 NLRB 1116 (1989), and cases
cited therein. In sum, I conclude that Respondent’s bargain-
ing was merely the paying of lip service to its 8(d) obligation
to bargain in good faith, Butera Finer Foods, 296 NLRB 950
(1989), and that it was engaged in unlawful surface bargain-
ing within the meaning of Section 8(a)(5) and (1) and Sec-
tion 8(d) of the Act, as alleged. Respondent’s conduct was
perhaps more skillful and flexible than that of other employ-
ers who have been found guilty of surface bargaining, but I
regard Respondent’s bargaining posture and the results as
consistent with President Langston’s preelection admonition,
demonstrating that he was going through the motions of bar-
gaining. See, e.g., Overnite Transportation Co., 296 NLRB
669 (1989). What was perhaps an alternative to this lip-serv-
ice bargaining was Respondent’s willingness to agree to a
contract whose terms Respondent prescribed. But this is not
good-faith bargaining: it is merely a direction to do it ‘‘my
way’’ as the only way. To suggest that this is just hard bar-
gaining is to avoid the mutual obligation to compose dif-
ferences. Respondent failed to support its side of the obliga-
tion. This had been Respondent’s position since the com-
mencement of bargaining.
16. Alleged violation of Section 8(a)(3); failure to pay
holiday pay to Ernestine Hayes
Hayes, continuously employed as a bulk bag sewer since
May 1985, had been a prominent union supporter wearing
union buttons, a union T-shirt and other union insignia be-
fore the election. After the election, she was a regular mem-
ber of the union contract negotiating committee. Indeed, Re-
spondent’s personnel director, Wargo, identified her as a
prominent member.
On March 7, at work, Hayes hurt her back. The course of
the injury is not revealed in the record. Respondent’s office
clerical, Diane Bernardi, drove Hayes to the Baptist Minor
Medical Clinic in Memphis. She was treated at the clinic,
told to return for a recheck on Friday, March 10, 1989, and
told not to return to work pending such recheck (G.C. Exh.
31). On March 10, she was rechecked and permitted to return
to work the same day. Respondent concedes (R. Br. p. 8)
that the diagnosis at that time was ‘‘back strain.’’ The physi-
cian, however, noted that Hayes could return ‘‘to full duties
immediately with no restrictions’’ (R. Exh. 44).
On Monday, March 13, Hayes came to work but left, com-
plaining of pain. She returned to the Baptist Minor Medical
Center, was seen and referred to a specialist for examination
on Friday, March 17. She was told not to return to work
prior to the March 17 appointment (G.C. Exh. 31).
On March 17, Hayes was seen by a neurosurgeon, Dr.
Engelberg, who scheduled a bone scan for the following
Monday, March 20. On March 20, however, the doctor’s of-
fice notified Hayes that there had been no workman’s com-
pensation authorization for the bone scan. Hayes then chose
not to have the procedure done (at her own cost) but to await
for authorization (G.C. Exh. 31). The doctor instructed her
to return to work (Tr. 192).
Hayes returned to work on March 22 and worked a full
day. She also worked on March 23 but left about noon (Tr.
2193) and went to the doctor’s office (Tr. 2194) because she
was experiencing pain (Tr. 2177). On March 23, when she
felt this pain, she called her lawyer who told her to call the
doctor (Tr. 2177–2178) who told her to come in. After
speaking to the doctor on the phone, she told Plant Manager
Bill White that she was in pain and that she was going to
see the doctor. She then punched out, and went on the next
day to the doctor’s office on March 24 (Good Friday), but
was notified that the Company had still not authorized the
payment for the back scan test and that she could not be fur-
ther treated without the results of such a test. Dr. Engelberg
told her he could not authorize her to miss work (G.C. Exh.
31).
Hayes did not work on the succeeding Monday (March 27)
or Tuesday (March 28).
On Wednesday, March 29, Hayes did not work and under-
went a bone scan examination under Dr. Engelberg’s super-
vision. The procedure was paid for by Respondent’s work-
man’s compensation insurer. As a result of the bone scan,
there was no suggestion of surgery and no further medication
(Hayes was apparently already on medication, Tr. 2195).
Hayes admitted that Dr. Engelberg did not suggest anything
or prescribe anything different from what she had experi-
enced in the period March 23–30 (Tr. 2195). After the back
scan examination, Hayes was told to ‘‘go back to work’’ (Tr.
2182–2183).
1062 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On Thursday, March 30, Hayes returned to work and
brought in a doctor’s statement. This statement, dated March
29, 1989, signed on behalf of Dr. Engelberg, noted that
Hayes was to return to work March 30 (the day after the
back scan examination) with no limitations on her working
ability (G.C. Exh. 30).
On March 31, a payday, Respondent paid Hayes for the
Good Friday holiday (March 24).
In a subsequent pay period, the exact date being unspec-
ified on the record, Respondent changed its mind and de-
ducted the pay for the Good Friday holiday from Hayes’ suc-
ceeding paycheck.
The evidence shows that on March 20 (Monday) Plant
Manager Bill White and General Manager Mack Elgin in-
structed office clerical Diane Bernardi to speak with Dr.
Engelberg and get a statement from the doctor whether
Hayes was supposed to be working (Tr. 2496–2497).
Bernardi did speak with Engelberg’s office. She said that the
telephone call was prompted by the fact that the doctor told
Hayes to return to work after her examinations of March 7
and that thereafter, she returned to work, periodically leaving
because of complaints of back pain. Bernardi testified that,
insofar as she understood the instructions from Elgin and
White, they wanted her to discover where Respondent stood
on the issue of whether Hayes was supposed to be at work
(Tr. 2497). When Hayes returned to work on March 30,
Bernardi asked her whether there was any medication that
Respondent should know about (in order to supply her) or
any other matter that should be brought to Respondent’s at-
tention. Hayes said that there was none and that she would
return to work (Tr. 2502).
On the date that Respondent subsequently deducted the
holiday pay from Hayes’ paycheck, Personnel Director
Wargo drafted a memorandum to be given to Hayes and to
be signed by Plant Manager Bill White.
Apparently on April 4, 1989, Respondent served on Hayes
the following memorandum:
The holiday pay policy in the employee handbook re-
quires that an employee work the day before and the
day after a holiday in order to receive holiday pay.
There are certain excuses for missing the day before or
the day after, and these are in the handbook.
You were absent part of the day before and the day
after the Good Friday holiday. You were paid holiday
pay based on your statement that your absence on
Thursday was because of hurting. However, to date you
have not provided a certificate from your doctor verify-
ing the illness as required by company policy.
You have until the close of business Friday, April 7, to
submit the doctor’s statement verifying the illness from
Thursday, March 23–March 29. Unless you do so, the
holiday pay will deducted from your check.
Hayes testified that she missed work on Monday, March
27, and Tuesday, March 28 because her back continued to
hurt (Tr. 2185).
After her return to work she did not often miss work al-
though she testified that her back continued to hurt ‘‘off and
on’’ (Tr. 2185–2186). Since April 1989, it appears that her
back is hurting less and she is missing less work (Tr. 2186).
On May 30, 1989, the Union accused Respondent of uni-
laterally changing the eligibility for holiday pay in the case
of Ernestine Hayes and alternately suggested that there had
been an honest mistake in Respondent’s subsequent deduc-
tion of the holiday pay from her paycheck. It requested a
correction of his error (G.C. Exh. 40). In its June 16, 1989
response (G.C. Exh. 11), Respondent stated that Hayes’ su-
pervisor asked her to verify the reason for her absence on
March 27; and would have accepted a doctor’s note to satisfy
that request. Respondent asserts that Hayes, by virtue of Re-
spondent’s April 4 memorandum to Hayes, was given ample
notice to provide the documentation or lose the holiday pay.
In view of her failure to provide the requested verification
of her absence, the holiday pay was deducted from her pay-
check. This letter apparently was based on a decision of Re-
spondent’s president, Robert Langston, in conjunction with
Ron Wargo, to deduct the Good Friday holiday pay unless
Hayes made a more specific doctor’s statement. Hayes never
presented any such documentation that her absence after the
holiday was due to a work-related injury. (Tr. 2135; 2137.)
Wargo’s testimony is undenied that Respondent, in the
past, has denied holiday pay to other company employees
(Tr. 2165–2167; R. Exh. 46). In none of these cases, how-
ever, was the failure to pay for the holiday due to an on-
the-job injury (Tr. 2168).
a. Respondent’s handbook holiday pay policy
Company policy regarding payment for holidays is found
at pages 16, 17, and 26 of the employee handbook (G.C.
Exh. 29; R. Exh. 4). The handbook lists Good Friday as a
holiday.
Eligibility for the paid holidays requires various conditions
to be fulfilled. The first is employment for a minimum of 90
calendar days. The second condition is that the employee
must work the regularly scheduled day before and after the
holiday. The third condition is that if an employee is absent
on either of the above qualifying days, holiday pay will be
given provided the absence is due to one of the following
reasons:
A. Absence due to work related injury.
B. Absence with written doctor’s certificate (verify-
ing employee’s illness).
C. Military obligation.
D. Bereavement.
E. Jury duty.
At page 26 of the handbook (R. Exh. 45), there is a sec-
tion entitled ‘‘Return to work after absent [sic] due
illness/injury.’’ That section provides: it may be necessary
for you to provide a written doctor’s release to return to
work in the following circumstances: ‘‘(1) . . . (2) Injury,
non-industrial, resulting in absence from work for one or
more days. (3) Hospitalization for any reason. . . . (4) In-
dustrial injury resulting in absence from work for one or
more days.’’ This paragraph ends with the statement: ‘‘This
is required for our insurance purposes and also for your own
protection’’ (R. Exh. 45).
b. Discussion and conclusions
The sole issue, as alleged in paragraphs 8 and 9 of the
complaint in Case 26–CA–13394, is whether Respondent de-
1063LANGSTON COS.
nied Hayes the Good Friday holiday pay because of unlawful
reasons, i.e., Hayes’ union or concerted activities.
There is no dispute that Respondent’s actual policy is that
of an employee, on the day before or the day after the paid
holiday, misses less that 5 hours of work on such a day or
days, holiday pay would nevertheless be paid. This, allow-
ance does not appear in writing but the parties are in agree-
ment that this policy exists. Further, Respondent does not
deny that on the Thursday (March 23) prior to the Good Fri-
day holiday, Hayes worked the requisite 5 hours. Therefore,
the only remaining issue here is whether Hayes’ complete
absence on the Monday (March 27) following the Good Fri-
day holiday excluded her from holiday pay or whether Re-
spondent’s motive, from all the circumstances, was discrimi-
natory in ultimately deducting the holiday pay from Hayes’
paycheck.
In particular, General Counsel argues that Hayes’ March
27 absence (the Monday following the Good Friday holiday)
should not be counted as an ‘‘absence’’ for purposes of the
handbook policy because (1) she was absent due to pain re-
sulting from an on-the-job injury and (2) she submitted to
Respondent a physician’s statement accounting for her ab-
sence. (G.C. Br. p. 15.)
General Counsel asserts that Respondent’s rejection of the
doctor’s statement it received from Hayes when she returned
on March 30 (G.C. Exh. 30) as insufficient under its rules
is frivolous. In support of this argument, General Counsel as-
serts that no complete diagnosis of Hayes’ condition could
have been made until a bone scan had been made, and that
no bone scan could be made because the Respondent’s work-
men’s compensation carrier had delayed authorization for
payment for the bone scan and that the results of the bone
scan were not made known because of this delay until after
the day in question, i.e., March 27, the day after the holiday
(G.C. Br. p. 15). General Counsel further argues that there
was no evidence to show that Hayes’ claim of backpay was
spurious. To the contrary, Respondent knew that Hayes was
under medication for her pain. In sum, General Counsel ar-
gues there is no rational basis for concluding that Hayes did
not suffer pain or concluding that the pain was not attrib-
utable to her injury. Thus, General Counsel argues, Respond-
ent acted contrary to its own rules and, in view of Hayes’
engagement in known union activities, supported by Re-
spondent’s arbitrary failure to apply its own rules, Respond-
ent’s deduction of the holiday pay was discriminatorily moti-
vated.
Respondent argues that, in determining the application of
the exceptions to the requirements of working the day after
the holiday, the company was endeavoring to discover
whether there was any medical reason for Hayes to miss
work on March 27 and particularly whether it was work-re-
lated. Respondent asserts that that was particularly the reason
for taxing Hayes with bringing in a doctor’s statement show-
ing that, for whatever reason, she had been unable to work
on the working day after the Good Friday holiday (R. Br. p.
10). In view of Hayes’ failure and refusal to provide such
further documentation Respondent asserts that it lawfully ap-
plied the rules in deducting the holiday pay; and that, in any
event, even if it misapplied the rules, there is no proof that
its misapplication of the rules was part of a desire to unlaw-
fully discriminate against Hayes because of her union or con-
certed activities.
With regard to General Counsel’s argument, I do not be-
lieve that Respondent’s insistence on submission of a medi-
cally supported reason for the March 27 absence is ‘‘frivo-
lous.’’ On the contrary, all that appears on record is Hayes’
claim of pain due to a March 7 work-related injury; her
being medicated therefore upon treatment by a physician;
and, following a bone scan examination, being directed to re-
turn to work without physical limitations (G.C. Exh. 30). On
this record, there is no evaluation which shows that Hayes,
in fact, had a medical basis for suffering pain; and that omis-
sion was further underscored by a back scan examination
which also showed no physical basis for the pain.
To the extent General Counsel argues that Hayes’ submis-
sion of the physician’s March 29 statement itself accounted
for a March 27 absence, it is without merit. All it shows is
that she was in the doctor’s office. The face of the document
(G.C. Exh. 30) shows that there had been a release of the
patient to return to work the very next day without restric-
tions on her working capacity. Pain, due to motion, would
have been such a restriction.
There was no such restriction.
To the extent General Counsel concludes that there is no
rational basis for concluding that Hayes did not suffer pain,
he is mistaken. The doctor’s report of March 9 makes no
suggestion of the existence of a restriction of motion or other
conclusion which would show the existence of pain much
less that it was attributable to a work-related injury.
The real question which must be answered is whether Re-
spondent could lawfully insist on a written doctor’s statement
which would show that Hayes’ March 27 absence was due
to either a work-related injury or some other disability which
would medically justify her absence. As late as April 1989,
it gave her the opportunity to do so but she failed to do so.
All that Respondent had in its possession with regard to
medically supported conclusions of Hayes’ condition was a
March 10 status report from Dr. Engelberg stating that Hayes
could ‘‘return to full duties immediately with no restric-
tions’’ (R. Exh. 44) and a March 29 release from Dr.
Engelberg showing that she could return to work the next
day, on March 30, without limitations even after the bone
scan (G.C. Exh. 30). Under these conditions, Respondent
could reasonably feel suspicious that, whether or not Hayes
might be malingering, she had failed to meet the exception:
absence due to a work-related injury; absence with a doctor’s
certificate verifying employee’s illness.
On the other hand, I was not much impressed with Re-
spondent’s continued insistence that, in determining whether
Hayes qualified for an exception to its absence policy, it
could insist on a written doctor’s release to return to work
because of an industrial injury resulting in absence of one or
more days (R. Exh. 45). That provision, as the section itself
notes, is for Respondent’s insurance purposes and for the
employee’s protection. In short, that paragraph in Respond-
ent’s employee handbook is designed to protect the employer
against risks in returning an employee to work when the em-
ployee has been injured, in particular, for an industrial injury
serious enough to cause absence for one or more days. It is
designed, by gaining the physician’s release, to protect the
employer from an employee’s premature return to work rath-
er than, as here, as a vehicle by which the employer may in-
sist on the employee returning to work on pain of losing a
day of holiday pay.
1064 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I conclude, in sum, that whether Respondent precisely ap-
plied the rules in its handbook to the Hayes case, its actions,
it seems to me, were insufficient to support a conclusion that
its motives were unlawful. I reach this conclusion on the
facts notwithstanding that Ernestine Hayes did engage in
union activities and, indeed, as on the negotiating committee;
she was not alone in those activities. There is no evidence
that, as part of General Counsel’s case in chief, Respondent
singled out or identified Hayes in any manner prior to this
occurrence for her union activities or that its treatment of
Hayes was in some way disparate. To the contrary, the evi-
dence shows that Respondent has, in other circumstances, de-
nied holiday pay to persons missing the day before or day
after under its rules. The fact that in none of these instances
of deductions of holiday pay were the employees suffering
from work-related injuries seems to me to be irrelevant.
Thus, there is no unique or disparate treatment of Hayes. In
addition, there was consistently no medical evidence to sup-
port Hayes’ claim of pain. The fact that she was claiming
pain does not establish the pain nor does her taking medica-
tion (undistinguished on this record) establish that she was
suffering from pain or that the injury was work related. In
any event, and notwithstanding the existence of a weak
prima facie case, Respondent sufficiently rebutted any such
prima facie case, NKC of America, 291 NLRB 683 (1988),
by having in its possession written medical evidence which
failed to support the existence of a work-related injury or,
more important, the existence of pain. In any case, Respond-
ent here would have acted the same regardless of the prima
facie case. Ibid. In the light of these circumstances, I shall
recommend to the Board that the General Counsel has insuf-
ficiently proved that the deduction of Good Friday holiday
pay from the paycheck of Ernestine Hayes violated Section
8(a)(1) and (3) of the Act and that allegations thereof be dis-
missed.
17. Alleged violation of Section 8(a)(3): the July 1,
1989 verbal warning to Josephine Benson
The complaint alleges that on or about July 18, 1989, Re-
spondent issued a verbal warning to Josephine Benson for
unlawful motives in violation of Section 8(a)(1) and (3) of
the Act.
I have already found, above, that Respondent, in violation
of Section 8(a)(3) and (1) of the Act, paid unlawful attention
to Josephine Benson in issuing an unlawful written warning
to her on November 15, and on November 22, 1988, unlaw-
fully suspending her. The matters alleged in the new com-
plaint occurred 8 months thereafter in July 1989. I conclude,
on the basis of the above findings, that Respondent was pos-
sessed of unlawful animus against Josephine Benson and, of
course, had knowledge of and resented her activities on be-
half of the Charging Party. The supervisor, at all material
times, was Plant Manager Bill White.
At about 9 a.m., July 17, 1989, Benson went to the rest-
room. She testified that she remained there approximately 13
minutes because she was ‘‘sick’’ (Tr. 2212). When she came
out, she saw Bill White sitting in a chair apparently near the
doorway to the restroom and White told her: ‘‘No wonder
you can’t make any money because you stay in the restroom
too long’’ (Tr. 2212). White looked at his watch when saying
this. White told her that he was going to give her a warning
and said nothing else at that time.
About 30 to 35 minutes later, while she was at her work
station, White was working at a table loading goods, situated
immediately next to Benson’s workplace. She asked him if
he was really going to give her a warning and he said that
he was.
At about 2:15, later that same day, three employees, in-
cluding Benson, entered White’s office to discuss with him
the method by which he computed their production (Tr.
2214–2215). While in the room, White told her that she
could not make any money because she stayed in the rest-
room for 18 minutes (Tr. 2215).
Benson denied that she did and could recall nothing fur-
ther in the conversation. Benson denied that, while she was
in the restroom, any employee came into the restroom and
told her that Bill White wanted her to leave the restroom; nor
did White ever tell her that he had sent someone in to tell
her to come out (Tr. 2216). He did not tell her (at the time
of giving her the warning) that he was giving her the warn-
ing because she refused to come out when he had told some-
body to tell her to come out. He never showed her a written
document showing that she was receiving a warning. Al-
though she knew that an employee, Gwendolyn Crawford,
worked for the Company at the time of this warning from
Bill White, she denied that Crawford ever came into the rest-
room and told her that White wanted her to come outside
(Tr. 2217–2218). She also denied a recollection of whether
Gwendolyn Crawford came into the restroom that day (Tr.
2218). Further, Benson testified that she knew of employees
who had been in the restroom for as long as 25 minutes be-
cause of sickness and when the employee had been sum-
moned to come out by White, merely told the summoning
employee to tell White that she was sick (Tr. 2218). In par-
ticular, Benson testified that a coemployee told her, on that
day, while Benson was in the bathroom that this other em-
ployee (Thompson) had been in the bathroom for 25 minutes
that morning (Tr. 2222). At no time however, did she ever
tell Supervisor White that she was sick nor did White ever
ask her whether she was sick. Benson testified that she never
told White that she was sick in the bathroom because White
‘‘never gave me a chance. All he was throwing at me was
warnings.’’
Lastly, Benson testified that on the prior day, July 17,
Benson in the company of other employees wanted to know
how White was computing their production which is the
basis for establishing their incentive pay rate. When they
went in to discover the method of his calculations, he told
them that he was not going to show them how he performed
this function (Tr. 2227) but he thereafter did show her how
to do it. On the next day, July 18, they did the same thing.
When they asked him for production records, he refused to
supply them.
Plant Manager White admitted that he told Benson that
she was going to receive an oral warning for staying too long
in the restroom and that he placed a written notice in her
personnel file stating that she had been orally warned (Tr.
2113). White testified in the past he has orally warned em-
ployees for staying too long in the restroom but had never
placed any such notice in any employee’s file (Tr. 2116). He
said the reason he made a written notation of the verbal
warning was that, unlike other employees, Josephine Benson
failed to come out of the bathroom after he had sent in an
employee to tell her to come out (Tr. 2116).
1065LANGSTON COS.
Consistent with White’s testimony, Gwendolyn Crawford
testified that although she could not recall the date, she re-
called the event.
She had been in the restroom and had recognized Jose-
phine Benson’s voice because she had been talking to her
when she was using the bathroom herself (Tr. 2450–2451).
Crawford, leaving the bathroom and returning to her work
station walked into Supervisor White. White asked her to go
back into the bathroom and tell Benson to come out (Tr.
2452). She did so. In addressing the closed booth in which
Josephine Benson apparently resided, she said: ‘‘Josephine,
Bill wants you come out of the bathroom’’ (Tr. 2456, 2459).
Crawford testified that he stood at the bathroom door when
she told Benson to come out; that there was no reply; and
that she turned and exited the door (Tr. 2456, 2459). Her po-
sition at the door (from which she made the request for Ben-
son to come out) was about 15 feet from the closed stall in
which Benson resided (Tr. 2461). As above noted, Benson
denied having heard anyone tell her to come out.
White testified that Benson did not come out and had re-
mained in the bathroom about 18 minutes (Tr. 2117). White
said that when he asked Benson why she had not come out
when he had sent Crawford to tell her to come out, Benson
merely shrugged her shoulders and said nothing (Tr. 2117).
He admitted that there was no formal, written policy with re-
spect to how long an employee was permitted to stay in the
restroom (Tr. 2118). On the other hand he said that he had
never had the experience of an employee remaining in the
bathroom after he had requested her to come out (Tr. 2118).
He testified that he had sent in after many of them who were
in the bathroom. The only reason that he wrote up the verbal
warning was that Benson did not come out immediately but
remained in the bathroom for 5 minutes after he had re-
quested her to come out (Tr. 2119). When Benson emerged,
he told her immediately that he was going to write her up
because she stayed in the bathroom too long and because she
did not come out for 5 minutes after she was summoned.
Discussion and Conclusions
Having already found that Benson had been subjected to
unlawful conduct with regard to a warning and suspension,
I would ordinarily not pass on this verbal warning based on
her overstaying her time in the bathroom because it would
merely be repetitive. However, since the remedy in this case
would involve, inter alia, expunction of each of the alleged
unlawful warnings, Sterling Sugars, 261 NLRB 472 (1982),
I believe it necessary to pass on this alleged unlawful warn-
ing as well.
I believe little of Josephine Benson’s testimony. I do not
believe that she was sick (certainly sufficient to have her re-
main in the ladies restroom for 18 minutes); I do not believe
that she did not hear Gwendolyn Crawford ask her to come
out; and I conclude that contrary to the allegations of the
complaint, the verbal warning did not violate Section 8(a)(1)
and (3) of the Act.
In the first place, there were certain elements of Benson’s
testimony which struck me as overly argumentative rather
than responsive. In response to the question (albeit on cross-
examination) whether she told Plant Manager White on the
morning of July 18 that she was sick prior to going to the
restroom, her response was not that she did not tell White,
but that White never asked (Tr. 2222). When asked whether
she told White that she had been sick, her response was, at
least at first: ‘‘would it do any good? No.’’ When she was
again asked whether she had told White that she was sick
prior to going to the bathroom on July 18, she answered,
‘‘No, Mr. White never gave me a chance.’’ The response to
this question was obviously misconceived since the witness
apparently believed the question related to White speaking to
her after she emerged from the bathroom rather than before.
In any event, she testified that White never gave her a
chance to tell him that she was sick. I credit White’s con-
trary testimony that when he confronted her with being in the
bathroom for a total of 18 minutes, all she did was shrug her
shoulders. My observation of Benson leads me to the conclu-
sion that she would not hesitate in telling him that she was
sick if that were true. Rather, I credit White’s testimony that
she shrugged her shoulders. I was also not impressed by
Benson’s testimony, that another employee had been in the
restroom even longer than herself, as ultimate justification
for her conduct.
Secondly, I do not believe Benson’s denial of not having
Gwendolyn Crawford ask her to come out of the bathroom.
Gwendolyn Crawford did not whisper the message to Benson
notwithstanding that she was 15 feet away, standing at the
entrance to the bathroom door and Benson was in the stall
with the door closed. Crawford had been in conversation
with Benson immediately before emerging from the bath-
room and meeting White. There is no suggestion in my ob-
servation of Crawford that she would have whispered the
message to Benson. Crawford was not employed by the
Company at the time she testified and I credit her as a rel-
atively independent witness whose testimony does not suffer
from any self-interest or fear.
Thirdly, I discredit Benson’s testimony with regard to this
episode because I credit Plant Manager White’s testimony
that he merely asked her why she had not come out of the
bathroom after he had summoned her through Gwendolyn
Crawford. Benson’s testimony is that White never gave her
a chance to explain what she was doing in the bathroom:
‘‘all he was throwing at me was warnings’’ (Tr. 2223).
White’s testimony was that he did ask her why she did not
come out when he sent Gwendolyn Crawford in to tell her
to come out and that Benson’s reply was merely to make a
gesture, shrugging her shoulders (Tr. 2117). As I have men-
tioned before, I conclude that White did ask the question and
that, contrary to Benson’s testimony, she did not tell him she
was sick. Rather she merely shrugged her shoulders. Had
Benson been actually ill in any way, I conclude that she
would have not hesitated in telling him that.
Lastly, in evaluating White’s motive, and notwithstanding
any preexisting union animus, the uncontradicted evidence is
that he did send in Crawford to get Benson out. Thus, even
if Benson did not heard Crawford’s summons, White would
have been reasonably upset by Benson’s failure to appear.
Notwithstanding the above findings, there is present, of
course, the fact that Benson had received Respondent’s un-
lawful attention 8 months before, and I have found violations
of Section 8(a)(1) and (3) in a prior warning and suspension.
There is the further problem that Plant Manager White was
sitting outside the restroom, timing Benson therein and that
at the 13-minute point, when Gwendolyn Crawford emerged,
he told her to go in and get Benson to come out (Tr. 2116).
The question is why, in the first place, was White sitting
1066 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
25 The terms of Respondent’s proposed ‘‘interim agreement on pay rates for
initial job offers’’ reads:
1. The Company should have the right to offer new employees a start-
ing rate of pay greater than the stated starting rate for the applicable job
title, but not to exceed the maximum rate for the job.
2. In the event the company employs a new employee at greater than
the starting rate for his job title, any employee working with the same
job title who was being paid at a rate less than that of the new employee
would be increased to the new employee’s level of pay.
3. Paragraph 2 shall not apply if the new employee’s higher rate of
pay is based on their [sic] greater experience or qualifications than that
possessed by the previously hired employees.
4. For purposes of this Article, job titles in current use are Helper, Ma-
terial Handler, Cutter, Forklift operator, Inspector, Chain Sewer, Lock
Sewer, Maintenance Mechanic and Maintenance Trainee.
5. This Article may be implemented immediately. However, both par-
ties are free to make other proposals on this subject for incorporation into
the final complete agreement.
there timing Benson for 13 minutes. One of the inferences
to be drawn is because he was setting her up because of her
outstanding union activities which he resented. Another was
that he resented her questioning him with regard to the meth-
od by which he figured out the incentive wage rates for em-
ployees on incentive wage rates. On the other hand, however,
the testimony is uncontradicted that female employees often
remained in the restrooms for long periods and that Plant
Manager White often sends messages to them to come out.
Thus there appears to be insufficient disparate treatment of
Benson based on White’s impatience with her for being long
in the bathroom. The case is distinguished by Crawford’s
participation and Benson’s conduct thereafter.
In view of my conclusion, in substance, that Benson may
well have been, at least for some part of the 13 minutes she
was in the bathroom, guilty of minor malingering which
White reasonably resented, I conclude that she cannot use, as
a shield against this unprotected activity, my having found
that Respondent previously paid unlawful attention to her be-
cause of her open and notorious union activities.
In short, I conclude that Respondent, considering all the
evidence, has proved by a preponderance of the credible evi-
dence that Supervisor White would have written up the
verbal warning notwithstanding Benson’s engaging in union
activities. Thus I conclude that even in the presence of Gen-
eral Counsel having proved a prima facie case of discrimina-
tion because of Benson’s notorious union activities, Respond-
ent’s animus, and Respondent having engaged unlawful ac-
tivity against her 8 months prior to this time, Respondent ef-
fectively produced a preponderance of credible evidence to
show that it would have taken the same action regardless of
any union or protected activity engaged in by Benson. See
NKC of America, 291 NLRB 683 fn. 4 (1988). I therefore
recommend to the Board that the allegation of violation of
Section 8(a)(1) and (3) of the Act by White issuing and me-
morializing a verbal warning on July 18, 1989, be dismissed.
18. Alleged violations of Section 8(a)(5)
a. The ‘‘interim agreement on pay rates for initial
job offers’’
Paragraph 16 of the complaint in Case 26–CA–13394, al-
leges three elements of violation:
(a) In or about June 1989, Respondent implemented
a new rate of pay for newly-hired employees at Re-
spondent’s Arlington, Tennessee plant.
(b) The above conduct alleged in (a) occurred unilat-
erally without having reached a valid impasse in nego-
tiations and also constituted acts in bad faith.
(c) The rate of implemented pay as described in
paragraph (a), above, exceeded the rate offered by Re-
spondent in negotiations with the Union.
b. Respondent’s refusal to furnish information
concerning identities of newly hired employees paid the
newly implemented rates of pay; paragraphs
17, 18, and 19
Paragraph 17 of the complaint in Case 26–CA–13394 al-
leges that on or about August 25, 1989, the Union requested
that Respondent furnish the identities of newly hired employ-
ees to whom Respondent paid the newly implemented rates
of pay; that such information is necessary for and relevant
to the Union’s performance of its function as theexclusive
collective-bargaining representative of unit employees (com-
plaint par. 18) and that since on or about August 25, 1989,
the date of the Union’s request, Respondent has failed and
refused to furnish the information (complaint par. 19).
The facts are not in substantial dispute.
A. As the General Counsel notes (Br. p. 8) Respondent’s
final contract proposal for wages is contained in Respond-
ent’s erstwhile ‘‘final offer’’ dated July 22, 1989. It contains
proposed wages both for basic hourly rates and incentive
rates (G.C. Exh. 3(h)). In substance, the job classifications of
material handlers, cutters, inspectors, chain sewers, and lock
sewers all have a hiring rate of $3.40 per hour. Each of those
classifications have wage rate increases after 90 days, 6
months, and 1 year. The material handlers 1-year rate is $4
per hour ad the lock sewers’ rate after 1 year is $4.40 per
hour. The proposal also relates to wages for maintenance
trainees.
In negotiations after July 22, Respondent no longer re-
ferred to its proposals of July 22 as ‘‘final’’ but continued
to insist on its July 22 wage proposals in bargaining at all
times certainly through January 5, 1989 (Tr. 2233–2235).
A collective-bargaining session was scheduled for January
5, 1989. On the day before, January 4, 1989, Respondent dis-
patched a letter to the Union (G.C. Exh. 33) in which it stat-
ed that it was going to place on the agenda for immediate
action an intermediate proposal concerning pay rates for new
employees. Respondent, in this letter, stated that it was un-
able to hire qualified employees for vacancies because its
[comparatively low] starting rates. Job applicants, according
to Respondent, were willing to work at the maximum rate
that the job permitted but would not work at the lower hiring
rate. In short, Respondent desired the Union’s agreement to
having Respondent possess latitude to make job offers above
the ordinary starting rate up to the maximum rate. It asserted
that the higher starting rate would be offered if the applicant
had superior experience or qualifications or perhaps merely
because Respondent was faced with a shortage of trainable
people in the Arlington, Tennessee area. In the latter case,
Respondent, hiring at a higher initial hiring rate, would in-
crease the pay of any existing employees working in the
same job title to that of the newly hired, higher paid em-
ployee. Respondent asserted that under these conditions, its
proposal would have no negative impact on the existing
work force (G.C. Exh. 33) since all current employees were
paid the highest rate.25
1067LANGSTON COS.
The Union’s answer to Respondent’s intermediate pay in-
crease proposal at the January 5 bargaining session was that
the Company should provide a higher starting rate for all em-
ployees and the Union was not going to agree to ‘‘piece
meal a contract’’ (Tr. 2235–2237).
At the January 17 collective-bargaining session, the Union
stated that it wanted a higher starting rate for all employees
and would not agree to permit the Company to ‘‘discrimi-
nate’’ between applicants (G.C. Exh. 35).
At the March 15, 1989 collective-bargaining session, the
Union stated that it rejected the company proposal on interim
pay. When Respondent asked if that meant that the parties
were at impasse on the subject, the Union responded: ‘‘Don’t
start that crap’’ (Tr. 2316). At this and the prior collective-
bargaining session Respondent rejected the union proposal
for an increase of wages for all employees because an in-
crease for all employees was not ‘‘justified’’ (Tr. 2240). The
Union’s position was not that a differential wage rate would
discriminate between applicants and existing employees;
rather, it would permit Respondent to discriminate between
applicants (Tr. 2242). To solve this problem, the Union pro-
posed a $3.90 wage rate for all newly hired employees, thus
effectively raising the wage rate for all employees in that cat-
egory to at least $3.90 (Tr. 2242). Respondent’s position was
that an overall wage rate of $3.90 per hour was not justified.
On June 20, 1989, Respondent wrote to the Union with re-
gard to the interim pay rate proposal which would be dis-
cussed the next day in collective bargaining (G.C. Exh. 35).
Reminding the Union that the March 15 negotiations, the
Union had ‘‘flatly’’ rejected the interim pay proposal, and
asserting that Respondent was contemplating recruiting em-
ployees, a priority matter to Respondent, Respondent in-
quired whether the Union’s March 15 rejection stood and in-
vited any counteroffers (G.C. Exh. 35).
At the June 21, 1989 collective-bargaining negotiations,
the Union submitted a counterproposal (G.C. Exh. 34) in
which it refused accept the interim agreement because of the
tendency to ‘‘piecemeal’’ the contract which prolonged nego-
tiations and the reaching of agreement on an entire contract.
The Union however submitted a counterproposal: that the
Union would agree to the interim pay offer to new employ-
ees provided the company would agree to the Union’s wage
proposals during the interim period. The Union’s wage pro-
posals outstanding at this time (G.C. Exh. 45) provided for
an 80-cent-per-hour across-the-board wage increase to all
employees both in the first and second year of the contract:
a hire in rate of $4 per hour in the first year and $4.50 per
hour in the second year; and postprobation rates of $4.50 per
hour in the first year and $5 per hour in the second year.
In addition, the Union’s wage proposal had a cola of 10
cents per hour for every 3-percent increase in the cost-of-liv-
ing index (G.C. Exh. 45). Respondent rejected the Union’s
counterproposal on wage increases (Tr. 2320–2321) and as-
serts that impasse existed as of June 21, 1989 (R. Br. p. 13).
With both Respondent and the Union remaining fixed in
their respective positions with regard to the interim wage in-
crease, Respondent, sometime later in June 1989, com-
menced implementing hiring apparently at the new interim
wage rate, thus implementing its offer (Tr. 2247).
19. Alleged violation of Section 8(a)(5); Respondent’s
refusal furnish information concerning identities of
newly hired employees paid the newly
implemented rates of pay
B. The Respondent concedes (R. Br. p. 15) and the evi-
dence shows (Tr. 2250) that at a collective-bargaining ses-
sion of August 25, 1989, the Union inquired whether Re-
spondent, in fact, had hired employees at a rate above $3.40
and Respondent told the Union that it had done so. There is
no dispute that the classifications covered by the newly im-
plemented wages are classifications for which the Union is
exclusive bargaining representative.
Meanwhile, on August 15, 1989, the Union had already
filed a charge in Case 26–CA–13356 alleging, inter alia, the
unlawful unilateral hiring at a higher wage rate than Re-
spondent would agree to in bargaining for a contract together
with a refusal to furnish ‘‘certain bargaining information’’
(R. Exh. 43).
At the August 25 collective-bargaining session, the Union
asked for a list of employees hired at the newly implemented
interim wage rates and Respondent refused to furnish the list
because of the pending unfair labor practice charge (Tr.
2252). In fact, Respondent’s August notification to the Union
for such hiring was the first time that it had given such no-
tice to the Union (Tr. 2252–2253).
Respondent asserts that it is under no duty to furnish the
requested information because the information is merely to
support the Union’s unfair labor practice charge. Consistent
with this position, Respondent cites American Oil Co., 171
NLRB 1180 (1968); General Electric Co., 163 NLRB 198
(1967); and Huck Mfg. Co., 254 NLRB 755 (1981).
Discussion and Conclusions
1. To the extent that the request for information related
employees, newly hired into unit classifications, the informa-
tion does not pertain to nonunit information but to informa-
tion regarding the wage rates of unit employees. On such a
basis, the information is clearly relevant. Compare: Soule
Glass Co. v. NLRB, 652 F.2d 1055 (1st Cir. 1981), with
NLRB v. Western Electric, 559 F.2d 1131 (8th Cir. 1977).
The request for information concerning the wages of employ-
ees already hired in the bargaining unit is presumptively rel-
evant to bargainable issues, of which the refusal to disclose
violates Section 8(a)(5). Soule Glass Co. v. NLRB, supra, cit-
ing NLRB v. Rockwell-Standard Corp., 410 F.2d 953, 957
(6th Cir. 1969).
The cases, cited above by Respondent, demonstrating that
there is no obligation to furnish information to the Union be-
cause the information requested is the subject of an unfair
labor practice charge, are clearly distinguishable. The infor-
mation requested in those cases related principally to unfair
labor practices in matters outside of the area of actual bar-
gaining issues. In Huck Mfg. Co., supra at 755, the Union
sought information regarding the discharge of an employee
whose termination had become the subject of an unfair labor
practice charge. The administrative law judge, affirmed by
the Board, held that the employee was not required to give
the information to the Union because the information sought
was pertinent to the charge and not to the bargaining. In
American Oil Co., 171 NLRB 1180 (1968), the judge, with
Board approval, found that the Union’s demand for certain
1068 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
payroll record information, ostensibly in order to discharge
its function as bargaining agent in the formulation of union
contract demands, was actually pretextual. The bargaining
negotiations were not only to commence 3 months later, but
the records were actually sought to support a violation alleg-
edly based on unlawful subcontracting. The administrative
law judge was careful to note, 171 NLRB at 1188 fn. 46
therein, that such information might be called for in the ful-
fillment of actual bargaining obligations.
In the instant case, the collective-bargaining with relation
to wage rates was ongoing; the material was clearly relevant
to the wage rates of employees actually now employed in the
unit over which the Union was the exclusive bargaining rep-
resentative; Respondent was justifying the higher wage rate
to the newly hired employees based on their superior quali-
fications or experience; the names of the newly hired em-
ployees was therefore clearly relevant to both the Union’s
exploration of this issue of unit employee wage rates and rel-
evant to the Union’s 9(a) bargaining status and its 8(d) obli-
gation. The fact that the Union filed the 8(a)(5) charge first
and then made its request for the information may not be the
best mode of proceeding, American Oil Co., 171 NLRB
1180, 1188 (1968), but I find that the filing of the charge,
in this particular case and under these particular cir-
cumstances, does not provide a defense for Respondent’s re-
fusal to provide the information. No further showing of rel-
evance of this presumptively relevant material need be
shown, Soule Glass Glazing Co. v. NLRB, citing Curtiss-
Wright Corp. v. NLRB, 347 F.2d 61, 69 (3d Cir. 1965).
I therefore conclude that Respondent’s failure to provide
the information to the Union, commencing on or about Au-
gust 25, 1989, violates Section 8(a)(5) and (1) of the Act,
as alleged. I further conclude that, under the circumstances
of this case, Respondent may not assert that it lawfully im-
plemented the interim wage rates.
2. I have found, above, that Respondent engaged in sur-
face bargaining. The Board and courts have noted that Sec-
tion 8(d) of the Act imposes a duty on employees to bargain
collectively in good faith on pain of violating Section
8(a)(5). At the same time, the Act expressly provides that the
duty to bargain in good faith does not compel either party
to agree to a proposal or make a concession. Huck Mfg. Co.,
supra, citing NLRB v. American National Insurance Co., 343
U.S. 395, 404 (1952). In resolving the ‘‘obviously significant
tension between these provisions.’’ Huck Mfg. Co., supra, I
have found that Respondent’s unfair labor practices and bar-
gaining positions demonstrated surface bargaining. Cf. L. W.
Le Fort Co., 290 NLRB 344 (1989). In addition, was influ-
enced principally by President Langston’s preelection state-
ments, which foretold, in my judgment, quite accurately, the
subsequent course of bargaining. Cf. Port Plastics, 279
NLRB 362 (1986). This course of bargaining was that the
collective bargaining would be conducted so as to result in
no agreement or in an agreement solely on Respondent’s
terms, for all practical purposes ignoring the existence of the
Union. Respondent’s implementation of its interim wage pro-
posal further demonstrates Respondent’s bargaining posture.
In passing, it might be noted that the basis of Respond-
ent’s January 5, 1989 request for the interim wage rate was
a need for ‘‘immediate action’’ (G.C. Exh. 3). On June 20,
1989, it had become a ‘‘priority matter’’ (G.C. Exh. 35). The
Union had rejected the proposal in March. Whether there
was a business necessity insufficient to piecemeal the con-
tract is thus not beyond question. Unilateral implementation
of interim wage rates following interim impasse obviates the
need for contract bargaining and is a suspicious circumstance
on the issue of good faith.
Suspicious circumstances notwithstanding, and quite aside
from evidence of Respondent’s surface and bad-faith bar-
gaining in other instances, in the present situation, one need
not pass on the questions of ‘‘impasse’’ or the ‘‘piecemeal’’
nature of the bargaining.
In the first place, as General Counsel observes (G.C. Br.
18), absent the Union’s consent, Respondent’s unilateral im-
plementation of an interim wage scale whereby it is sole ar-
biter of paying newly hired applicants (for unit jobs) higher
wages than its contract offer, which Respondent deems war-
ranted under market conditions, unlawfully arrogates to Re-
spondent a unilateral right which the statute prohibits absent
consent. Such an implemented proposal directly violates Sec-
tion 8(a)(5) and (1). NLRB v. A-1 King Size Sandwiches, 732
F.2d 872 (11th Cir. 1984).
Respondent asserts that its interim wage offer to unit em-
ployees is justified because of a perhaps temporary inability
to hire qualified employees. If it pays these higher wages to
some new, unit employees (for whom the Union is the statu-
tory bargaining agent), it will justify not paying these higher
rates to other of these unit employees on the ground that the
former unit employees have better qualifications or skills;
otherwise, it agrees to pay all existing unit employees the
higher interim rates if it merely hires the new employees be-
cause of an employee shortage. In the face of this position,
Respondent—having admitted in August 1989 that it imple-
mented the interim rates and hired new unit employees in
those rates—refuses to give the names of the new unit em-
ployees to the Union because of the unfair labor practice
charge. Having rejected the legal basis for Respondent’s re-
fusal, I further find that Respondent’s refusal to give the
names of the employees directly prevents the Union from in-
quiring whether the conditions Respondent prescribed for
paying higher wages actually exist. Thus, although Respond-
ent’s proposal for the right to pay increased interim unit
wage rates was bottomed on its assurance that they would be
paid to applicants with superior skills or qualifications or, al-
ternatively, if ordinary applicants are hired at the higher
rates, to all unit employees in those classifications, Respond-
ent’s refusal to give the names of the new-hires prevents the
Union from inquiring into and contesting the ‘‘superior
qualifications.’’ The resulting ignorance imposed on the
Union ipso facto permits Respondent to discriminate among
applicants and to hire any new unit employees at the higher
rates without having to pay other new unit employees at the
higher rates because it need not substantiate the superior
skills or qualifications for the new hires. It won’t give the
names to the Union so that the Union might inquire into the
new-hires’ qualification.
While I would ordinarily view the alleged 8(a)(5) allega-
tion discretely, the question of the lawfulness of interim
wage rate implementation separate from the issue of Re-
spondent’s failure to give the requested information to the
Union, I conclude, on the basis of Respondent’s union ani-
mus and other bargaining positions, that the subsequent un-
lawful refusal to give the new-hires’ names to the Union col-
ors the motive for the prior implementation. Viewed as a
1069LANGSTON COS.
26 It is thus unnecessary to inquire whether Respondent’s implementation
would ever have met the rule in the Fifth Circuit, for instance, that overall
impasse is not a requisite for implementation of a change in a mandatory sub-
ject, merely that the Union be informed of the proposed change and be given
a reasonable opportunity for counterarguments or proposals. Huck Mfg. Co. v.
NLRB, supra at fn. 15.
27 The proposal, submitted April 26, 1988, appears to have been thereafter
discussed with the Union on June 21, 1988, November 16, 1988, and August
7, 1989 (G.C. Exh. 38, Tr. 2349).
The Respondent’s proposal prohibits drugs both on the job ‘‘or on Company
property, and prohibits alcohol (or being under the influence) ‘‘while on the
job or on company property, or while conducting company business.’’ (G.C.
Exh. 38, par. 1). The proposal is accompanied by an employee consent form,
authorizing medical testing for drugs and alcohol. Failure to execute the form
authorizes discipline, including discharge, constitutes a violation of Respond-
ent’s ‘‘corporate policy’’(G.C. Exh. 38, ‘‘Consent and Release Form’’).
common issue, I conclude that, under the cloak of collective
bargaining, the implementation gives Respondent unilateral
control over unit wages by the refusal to give the Union the
very information on which Respondent’s need for interim
wage relief was predicated.26 Unilateral control over wages,
whether by bargaining demand or as a result of Respondent’s
unlawful tactics vitiates the Union’s statutory right under
Section 8(d) to participate in good-faith bargaining on wages
and violates Section 8(a)(5) and (1) of the Act. NLRB v. A-
1 King Size Sandwiches, supra; Colorado-Ute Electric Assn.,
295 NLRB 607 (1989).
Quite apart from the above grounds for determining the
existence of bad-faith bargaining, further inquiry allows an
alternative basis to conclude that Respondent’s implementa-
tion of the interim wage rates unlawfully arrogated the estab-
lishment of the interim wage rates into Respondent’s control.
If the instant implementation were deemed lawful, then on
a subsequent otherwise lawful impasse permitting Respond-
ent’s unilateral implementation of its proposed wage rate, it
would be obligated ‘‘to institute those wage rates last offered
the Union as a good-faith basis for settlement,’’ Brooks, Inc.,
228 NLRB 1365, 1368 fn. 16 (1977). Since the higher in-
terim rates are in effect for an undetermined and
undeterminable number of new unit hires, would Respondent
then be able to institute (if labor market conditions per-
mitted) its outstanding, lower wage, July 22 contract wage
offer (R. Br. p. 14). Was that the ‘‘last offer’’ or have the
interim wage scales superceded the contract offer?
Is any change justified if it has been previously offered to
the Union in collective bargaining? Richmond Recording
Corp. v. NLRB, 836 F.2d 289 (7th Cir. 1987), citing Huck
Mfg. Co. v. NLRB, supra at 1186. Respondent’s implementa-
tion, as above noted, violates Section 8(a)(5) and (1) of the
Act. Respondent’s refusal to give the names of the new hires
also violates Section 8(a)(5) and (1) of the Act, as alleged.
20. Alleged violation of Section 8(a)(5): failure to
provide information concerning substance
abuse program
On April 26, 1988, in contract negotiations, Respondent
submitted, as part of ‘‘corporate policy’’ a substance abuse
proposal (Tr. 2260; G.C. Exh. 38).27 Aside from prohibiting
on-the-job possession of use of narcotics and alcohol, and
providing for discipline in violation of that prohibition, it
also provided for discipline, including discharge, for off-the-
job illegal drug use. By its terms, it specifically applied to
employees ‘‘on Company property.’’ In addition, Respond-
ent’s proposal mandated employee report to his supervisor of
employee treatment for a controlled substance. Furthermore,
the proposal grants Respondent the right to require an em-
ployee to submit to ‘‘standard alcohol and drug screening
test’’ in the case of an on-the-job accident or observed be-
havior, or the receipt of information substantiating drug or
alcohol abuse. The presence of alcohol or drugs as a result
of such screening test permits discipline.
In a collective-bargaining session of April 26, 1988, the
date of submission of the proposal, Respondent told the
Union that the policy of the substance abuse program had
been implemented at the Arlington plant prior to the Novem-
ber NLRB election (Tr. 2346). Respondent was unclear
whether a notice was ever posted at the Arlington plant ad-
vising the employees of implementation (Tr. 2346–2347) but
it was certain that the substance abuse plan had never been
enforced (Tr. 2347).
In the next discussion of the substance abuse proposal on
November 16, 1988 (Tr. 2349), Union President Rudd told
Respondent that Respondent’s employees at its Memphis and
West Memphis plants had never heard of a substance abuse
policy. The Union objected to the substance abuse policy be-
cause it violated the ‘‘absolute right of a worker . . . or vio-
lated constitutional rights of a worker’’ (Tr. 2349). When Re-
spondent told the Union that the proposal was constitutional,
the Union nevertheless then objected because it gave Re-
spondent the ‘‘absolute right to force a worker to take a drug
test without cause’’ (Tr. 2350).
On several occasions in 1988, the Union told Respondent,
in forceful terms, that it rejected the substance abuse pro-
posal. The Union counteroffered to implement the proposal
only for newly hired employees (Tr. 2263). Respondent re-
fused this counteroffer made in August 1989 (Tr. 2263).
At a bargaining session of August 7, 1989, the Union re-
quested information concerning the substance abuse policies
in effect at Respondent’s plants other than the Arlington
plant (Tr. 2264). Respondent said that it did not believe it
had an obligation to furnish such information about non-
bargaining unit employees but that it would research the mat-
ter and respond. Before it could respond, the Union put the
matter formally in writing (G.C. Exh. 37) in a letter of Au-
gust 9, 1989. Noting that Respondent’s bargainer, Ron
Wargo, stated that he was in charge of personnel and labor
relations at Langston’s plants in Tennessee, Arkansas, and
Louisiana, and since Respondent desired power of ‘‘unlim-
ited search and seizure . . . at its unionized plant in Arling-
ton, Tennessee.’’ the Union requested answers to the follow-
ing questions:
A. Does these policies [sic] exist in the Company’s
non-union plants, and are they being enforced? If so,
the Union request copies of such policies and proof of
enforcement.
B. If these policies do not exist in the non-union
Langston plants that Wargo is in charge of personnel
and labor relations, the same as he is at the Langston
unionized plant, please explain in details [sic] why
these policies have not been implemented and enforced
in those plants, since there is no apparent law to pre-
vent the company from doing so?
C. Without proof that these policies exist, and are
being enforced at the non-union facilities, the Union
must assume that no such policies exist, and therefore
1070 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
we have no other choice but to request and expect a de-
tailed explanation of why these policies are being
pushed at the Arlington, Tennessee plant only?
In response, Respondent’s August 21, 1989 letter to the
Union (G.C. Exh. 36) states:
Such information is presumptively not relevant to any
legitimate collective-bargaining purpose the Union has
with the Arlington plant bargaining unit. Absent a
showing of how this information is relevant to the
Union’s collective-bargaining duty, and specifically
why you want this information, the Company declines
to provide it.
Discussion and Conclusions
The complaint fails to allege that the implementation of
the substance abuse program violates Section 8(a)(5) and (1)
of the Act. In view of the absence of an allegation addressed
to this issue, I need not pass on it.
There is no doubt, nevertheless, that on April 26, 1988, the
date of the Respondent submitting the substance abuse pro-
posal, it told the Union that the policy with respect thereto
had been implemented at the Arlington plant prior to the
election (Tr. 2346). If this be true, notwithstanding the con-
fusion of Respondent being unable to accurately advise the
Union of the truth of this assertion thereafter, the Union had
reason to believe, clearly on this record, that the policy of
the substance abuse proposal had been implemented and thus
was a term and condition of employment of current employ-
ees in the unit.
By November 1988, the Union had apparently made in-
quiry as to the existence of the substance abuse program at
Respondent’s other plants and had been told that there was
no such policy in effect at those nonunionized plants.
In view of common labor relations direction at Respond-
ent’s several plants, and in view of Respondent’s assertion
that the plan was already in effect at Arlington but the Union
had apparently discovered that the policy was not in effect
at the nonunion plants, it would appear to me to be relevant
for the Union to request information considering its own bar-
gaining position with respect to an alleged existing term and
condition of employment covering Arlington plant unit em-
ployees notwithstanding that the requested information con-
cerns Respondent’s substance abuse policies at its other, non-
unionized plants.
Various legal propositions in Soule Glass Co. v. NLRB,
652 F.2d 1055 (1st Cir. 1981), are instructive on the instant
facts. As noted therein, an employer may treat differently
union and nonunion employees or employees in different
bargaining units where a legitimate business justification is
shown for such action, and absent evidence of bad-faith or
antiunion motive. Thus, with regard to 8(a)(3) discrimination
(we are here dealing only with Section 8(a)(5) and good-faith
bargaining), disparate treatment of employees in different
units does not necessarily imply unlawful discrimination.
Thus, in a context of good-faith bargaining, a grant of a
wage increase to nonunion employees in a different unit who
worked through a strike, withholding the increase to union-
ized employees, did not violate Section 8(a)(3) of the Act.
In addition, Respondent is correct in arguing that where,
as here, the Union is seeking information regarding Respond-
ent’s substance and alcohol abuse policies at Respondent’s
nonunionized plants (G.C. Exh. 37), it must show special rel-
evance to the Union’s bargaining responsibility at Arlington
where it represents and bargains for the unit employees. It
does not represent Respondent’s Memphis employees or
those in Louisiana or Mississippi or Arkansas. For, as stated
in Soule Glass Co., supra at 1092:
The general rule is that an employer must supply, on
request, ‘‘relevant information’’ ‘‘in the employer’s
possession’’ ‘‘needed by a labor union for the proper
performance of its duties as the employees’ bargaining
representative.’’ Detroit Edison Co. v. NLRB, 440 U.S.
301, 303 (1979); i.e., ‘‘to enable the [union] to under-
stand and intelligently discuss the issues raised in bar-
gaining. . . .’’ San Diego Newspaper Guild v. NLRB,
548 F.2d 863, 866 (9th Cir. 1977). See R. Gorman
[Labor Law], supra at 409. Absent special cir-
cumstances, see Western Massachusetts Electric Co. v.
NLRB, 589 F.2d 42, 47 (1st Cir. 1978), ‘‘relevance’’ is
determinative of the duty to disclose. Relevance is to
be determined by a liberal ‘‘discovery-type standard.’’
NLRB v. Acme Industrial Co., 385 U.S. 432, 437
(1967). As the Supreme Court noted the leading case
of NLRB v. Truitt Manufacturing Co., 351 U.S. 149,
153–54 (1956), ‘‘[e]ach case must turn on its particular
facts. The inquiry must always be whether or not under
the circumstances of the particular case the statutory
obligation to bargain in good faith has been met.’’
Where the requested information concerns wages and
related information for employees in the bargaining unit
the information is presumptively relevant to bargainable
issues.’’ NLRB v. Rockwell-Standard Corp., 410 F.2d
953, 957 (6th Cir. 1969). The union need make no
showing of relevance. Curtiss-Wright Corp. v. NLRB,
347 F.2d 61, 69 (3d Cir. 1965). See Boston Herald-
Traveler Corp. v. NLRB, 223 F.2d 58, 63 (1st Cir.
1955) (disclosure required ‘‘without regard to its imme-
diate relationship to the negotiation or administration of
the collective bargaining agreement’’).
‘‘[W]here the request is for information concerning
employees outside the bargaining unit, the Union must
show that the requested information is relevant to
bargainable issues.’’ Rockwell-Standard, sura, 410 F.2d
at 957 (emphasis added). . . . To meet its burden re-
garding such information, the Union must show more
than ‘‘an abstract, potential relevance’’ or ‘‘mere sus-
picion or surmise.’’ Id. at 868. It must show ‘‘by ref-
erence to the circumstances of the case . . . more pre-
cisely the relevance of the data it desires.’’ Curtiss-
Wright, 347 F.2d at 69.
However, where the employer, during bargaining,
puts in issue information not presumptively relevant,
the employer must produce data to substantiate its
claims. As the Court stated in Truitt Manufacturing,
supra, ‘‘[g]ood-faith bargaining necessarily requires that
claims made by either bargainer should be honest
claims. . . . If such an argument [inability to afford
wage increases] is important enough to present, in the
give and take of bargaining, it is important enough to
require some sort of proof of its accuracy.’’ 351 U.S.
at 152–53. In Teleprompter Corp. v. NLRB, 570 F.2d
1071LANGSTON COS.
4, 9 (1st Cir. 1977), this court held, ‘‘[w]hen the em-
ployer itself puts profitability in contention—as by as-
serting an inability to pay an increase in wages—infor-
mation to substantiate the employer’s position has to be
disclosed.’’ We further stated that ‘‘[t]he employer may
not limit the relevant information disclosed to just those
fragments which satisfy its own view of the issue,’’ and
rejected a mootness argument against enforcement of
the Board’s order. Id. at 11. See Western Massachusetts
Electric Co. v. NLRB, 573 F.2d 101, 106–07 (1st Cir.
1978) (where company cited economics as reason for
using subcontractor rather than unit employees, com-
pany put subcontractor costs in contention and must
substantiate its cost assertions).
Applying the above legal principles to the instant facts Re-
spondent here, in its April 26 submission of the drug/alcohol
program proposal stated (G.C. Exh. 38) that its proposal was
‘‘corporate policy’’ and bound unit employees both off the
job and ‘‘on Company property.’’ Such statements, it seems
to me, necessarily implicate a corporatewide policy and ex-
pand the geographical reach of the disciplinary program,
inter alia, to Respondent’s other plants (‘‘on Company prop-
erty’’). Whatever the relevance of a union demand for
nonunit information, concerning whether Respondent was im-
plementing the program at its other plants, had Respondent
not put in play the issues of the program being a ‘‘corporate
policy’’ applicable ‘‘on Company property,’’ it may not be
heard to argue ‘‘not presumptively relevant’’ when Respond-
ent itself brought the issue into the bargaining arena. Under
the Soule Glass citation of Truitt Mfg. Co. v. NLRB, supra
at 152–153, Teleprompter Corp. v. NLRB, 570 F.2d 4, 9 (1st
Cir. 1977), and Western Massachusetts Electric Co. v. NLRB,
573 F.2d 101, 106–107 (1st Cir. 1978), here, Respondent has
asserted the existence of a corporatewide policy applicable
‘‘on Company property’’ and, having itself put the matters
in contention, it may not refuse to give the Union answers
if its assertions were ‘‘honest claims.’’ If these were ‘‘honest
claims’’ and ‘‘important enough to present, in the give and
take of bargaining, it is important enough to require some
sort of proof of [their] accuracy,’’ Truitt Mfg. Co., supra, 351
U.S. at 152–153. Where Respondent places the matter in
issue, the Union is absolved from hearing the burden of
showing special relevance.
Furthermore, the Union showed more than an ‘‘abstract,
potential relevance’’ or ‘‘mere suspicion or surmise,’’ Soule
Glass, supra, citing Curtiss-Wright Corp. v. NLRB, 347 F.2d
61, 69 (3d Cir. 1965). In response to Respondent’s asser-
tions, above, it told Respondent, as late as the November 16,
1988 bargaining, that Respondent’s employees at its West
Memphis and Memphis plants never heard of a substance
abuse policy (Tr. 2349). Respondent admitted the conversa-
tion and failed to meet it. Thus, assuming, arguendo, that the
Union was required to support some burden of relevance, it
has done so. With the Respondent’s assertions and the
Union’s showing, the Union was entitled to know if Re-
spondent’s proposal was advanced in good faith or was here-
by another example of bad-faith bargaining.
I conclude that the principle of Truitt Mfg. Co. v. NLRB,
supra, in any case, applies to the instant facts; that Respond-
ent, having raised the issues of the corporatewide application
of the program and its applicability at its other plants (‘‘on
Company property’’), and the Union having prima facie dis-
covered the untruthfulness of Respondent’s assertions of a
corporate policy and, in any case, having supported whatever
remaining burden it had to show ‘‘special relevance’’ for this
nonunit information Respondent was obliged to answer the
Union’s questions as they appear, above (G.C. Exh. 37). Its
failure to have done so violates Section 8(a)(1) and (5) as
alleged.
21. Alleged violation of Section 8(a)(5): Respondent’s
unilateral suspension of negotiations on
October 9, 1989
The complaint alleges (par. 22(b)) and Respondent does
not deny, that on October 9, 1989, Respondent unilaterally
suspended negotiations with the Union and since that time
has failed and refused to meet and bargain with the Union.
Respondent, admitting the allegations of the complaint, as-
serts that the record shows that there have been 20 months
of negotiations resulting in no agreement. Furthermore, the
Union’s conduct in the negotiations, according to Respond-
ent, deteriorated to ‘‘mere name-calling and posturing about
unfair labor practice charges’’ (R. Br. p. 19). Respondent as-
serts, that continuation of negotiations under these cir-
cumstances was unlikely to produce an agreement and the
Company’s suspension of participation was ‘‘reasonable.’’
The facts are not at issue. The final collective-bargaining
session between the parties was August 25, 1989. At that
session Respondent rejected the Union’s modification to its
wage proposal and the parties adhered to their respective
wage positions. Respondent informed the Union at the begin-
ning of the meeting that it had no further concessions to
make on 12 important substantive provisions: union dues col-
lection, no-strike clause, visitation, management rights, hours
of work, meal and rest periods, wage rates and job standards,
holidays, discipline and discharge, temporary job assign-
ments, seniority and job vacancies, and insurance and vaca-
tions. As above noted, the Union, at this meeting, inquired
whether the Respondent had hired new employees at rates
above $3.40 per hour and Respondent replied that it had, put-
ting into effect its January 5 proposal regarding rates for
newly hired employees on a temporary or interim basis.
While the August 25 collective-bargaining session started
at about 9:l5 in the morning, by about 1 p.m., after a
lunchbreak, the Union requested a list of all further subjects
Respondent desired to discuss. Scruggs, for Respondent, said
that he did not have such a list but with regard to the subject
of ‘‘layoff and recall,’’ that was one of the bargaining sub-
jects that Respondent ‘‘may have some movement on’’ (Tr.
2389). In subsequent bargaining, at that session, on the
Union’s proposal on ‘‘layoff and recall,’’ the parties reached
agreement on paragraph 1. On the second paragraph of the
Union’s proposal, Respondent offered a counterproposal but
the parties did not reach agreement on that second paragraph.
While the Union rejected the Respondent’s subsequent coun-
terproposals on later paragraphs, the Union told Respondent
that it would consider and respond to the counteroffers (Tr.
2392). Certain further paragraphs (pars. 7–10) of the pro-
posal were agreed to by Respondent (Tr. 2395). While the
parties did not sign off on the agreed paragraphs, Respondent
regarded the positions of the parties as manifesting ‘‘no dis-
agreement’’ (Tr. 2396). In short, Respondent conceded that
there had been progress in bargaining at least on some ele-
1072 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ments of the Union’s layoff and recall proposal (Tr. 2397).
Respondent considered this subject an important matter (Tr.
2397). Respondent asserts, however, that the parties remained
far apart and that the progress had been ‘‘imperceptible (Tr.
2398). In any event, nothing happened at the August 25,
1989 bargaining session which precipitated Respondent into
believing that no further progress could be made (Tr. 2398–
2399). In fact, at the end of the meeting, the parties agreed
to confer the following week about the next bargaining ses-
sion (Tr. 2429).
On October 9, 1989, Respondent addressed a letter to the
Union (G.C. Exh. 39):
At our last bargaining session, I advised the Union
that the Company had no further movement to make on
all but a few of the proposals then on the table. After
careful consideration of the remainder, we are of the
opinion that we currently have no further concessions
to make on the others as well. After over 20 months
of negotiations, and in excess of 30 sessions surely the
Union has made similar determinations on at least some
of the items on which agreement has not been reached.
I would request the Union to advise us of its final posi-
tion on any articles on which the union has determined
that its proposal on the table is in fact, its final position
on that subject.
It also has become apparent that the bitterness sur-
rounding the residential picketing and related litigation,
coupled with the well entrenched positions of the par-
ties on a large number of articles, has made progress
at the negotiating table imperceptible. In fact, the gen-
eral conduct of the Union committee in recent sessions
has been essentially counter productive—characterized
by name calling and arguments over whether or not the
Union can ‘‘accept’’ selective portions of the handbook
and other things the company has not proposed
It appears to me that the outcome of pending unfair
labor practice charges and other litigation may do more
to change the positions of the parties than any amount
a meeting could do. In an effort not to further exacer-
bate the existing situation, the Company is suspending
its participation in contract negotiation meetings to per-
mit a ‘‘cooling off period’’ pending the conclusion of
the outstanding charges. We will continue to negotiate
with the Union over any changes from past practice that
may be necessary or advisable.
The evidence is uncontradicted that at meetings other than
on August 7 and 25, 1989, where the meetings took place
in enclosed quarters with perhaps inadequate air condi-
tioning, Respondent’s bargaining team consisted of two or
three persons whereas the Union’s bargainers included a
committee of employees sometimes numbering well over a
dozen.
On more than one occasion, when Respondent’s bargainers
objected to the union bargainers smoking in the enclosed
area of the bargaining room, this precipitated all members of
the union bargaining committee into lighting up cigarettes,
asserting that Respondent could not dictate when and where
the union bargainers could smoke. Respondent, however,
never threatened to suspend bargaining or to actually suspend
bargaining pending resolution of the smoking problem but
merely asserted that it desired first and foremost to work
around such problems and to negotiate the contract (Tr.
2364). In other bargaining, there was vulgar language used
and sometimes loud behavior on the part of the union com-
mittee (Tr. 2363). Respondent, in sum, conceded that it did
not suspend bargaining over any one item. Rather, it stated
that it had become apparent to Respondent that the Union
‘‘wasn’t negotiating’’ (Tr. 2364).
Discussion and Conclusions
At the August 25, 1989 collective-bargaining session, the
parties had made some progress and reached some agree-
ments on the ‘‘layoff and recall’’ union proposal through
counterproposal and change of position. Respondent con-
cedes that this was movement on a substantial issue. In addi-
tion, the parties agreed to confer in the next week on sched-
uling further collective-bargaining sessions. Neither the
Union nor Respondent, at that time, in spite of Respondent
reading off items on which its position was firm, declared
that the parties had reached impasse. Under these conditions
of bargaining after Respondent read off its list of positions
on which it was fixed, such progress negates an inference
that both parties, considered that they were at that end of
their bargaining rope. Neither party said so and the parties
reached some agreement on a substantial issue. They agreed
to confer to set a date for further bargaining. Under these
conditions, I agree with General Counsel’s argument (G.C.
Br. p. 19) that there was no legal impasse at this time even
if Respondent, alone, considered itself at impasse. See Rich-
mond Recording Corp. v. NLRB, 836 F.2d 289 (7th Cir.
1987), and cases cited therein. Moreover, any ‘‘impasse’’
would have been the result of Respondent’s desire to reach
agreement only on its terms, i.e., bad-faith bargaining, and
in the presence of multiple unremedied instances of bad-faith
bargaining, including unilateral changes, not withdrawn. Stor-
er Communications, 297 NLRB 296 fn. 7 (1989).
In addition, Respondent did not declare an end to bargain-
ing particularly because of impasse. Rather, it referred to
‘‘bitterness’’ derived from certain other union conduct at and
away from the bargaining table (residential picketing and re-
lated litigation), and the imperceptible progress at the nego-
tiating table. Respondent complained of the ‘‘general conduct
of the Union committee’’ in engaging in ‘‘counter produc-
tive’’ conduct: name calling and arguments over the union’s
tactic of ‘‘accepting’’ offers which the company had not
made. While such conduct is or may not be conducive to
swift bargaining, nothing alluded to by Respondent on this
record demonstrates that the Union engaged in such mis-
conduct as to interfere with the mechanics of collective bar-
gaining. Forceful rejection of Respondent’s offer is not a rea-
son to suspend bargaining, neither is the hi-jinx engaged in
by union bargainers.
The continued and objectionable smoking by the union’s
bargainers is a more serious matter. The Respondent, how-
ever, never threatened to cease bargaining temporarily until
the smoking abated; rather it endured the objectionable
smoking pressing on with the bargaining effort. Such con-
duct, I believe, injurious to health, interferes with serious
collective bargaining when objected to by one of the parties
on reasonable grounds. When Respondent failed to take ac-
tion against this smoking, it appeared to me that it cannot
1073LANGSTON COS.
now successfully raise the issue as a reason for a cessation
of bargaining, even temporarily.
Lastly, what I perceive to be the most serious of Respond-
ent’s positions, is its declaration that it wished to ‘‘suspend’’
its participation in collective bargaining as a ‘‘cooling off pe-
riod’’ until resolution of the present outstanding allegations
of the several complaints (G.C. Exh. 39). Respondent cites
no authority sustaining that proposition. In addition, a ces-
sation of collective bargaining coterminous with the Board’s
or court of appeal’s resolution of the alleged unfair labor
practices is a cessation of collective bargaining for an inde-
terminate period. Respondent’s position could create a hiatus
in collective bargaining, if permitted, for a period perhaps in
excess of 3 years.
Where the parties have expressed a willingness to bargain
and, indeed, have agreed to confer to set a date for further
bargaining, and where the conduct of the parties is not so ob-
jectionable as to interfere with the mechanics of collective
bargaining itself, and where there had been some minor
progress on substantive issues, one party may not cease bar-
gaining substantially on the ground that it wishes to have
legal authority resolve the outstanding complaint allegations
before resuming bargaining. If the conduct of the Union and
the ‘‘imperceptible’’ progress were grounds for ceasing bar-
gaining, they have not been spelled out in sufficient detail
to support a cessation of bargaining. When Respondent adds
to these reasons a reason which is unsupportable in both au-
thority and usefulness (the resolution of outstanding unfair
labor practice allegations), a period of indeterminate length,
it is the same as stating that it wishes to cease bargaining
for an indefinite period. These are not sufficient grounds in
law to defend against the unilateral cessation of collective
bargaining. Respondent, by refusing to bargain in this indefi-
nite period, seems to be fulfilling the 1987, preelection
prophecy of President Langston that Respondent would bar-
gain for or 8 to 10 years before reaching a contract with the
Union if the employees selected the Union as their collec-
tive-bargaining representative (in the November 1987 elec-
tion).
I conclude that Respondent, commencing October 9, 1989,
by refusing to bargain with the Union, inter alia, until the
resolution of the instant unfair labor practice allegations, vio-
lated Section (a)(5) and (1) of the Act, as alleged.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Charging Party, the Union herein, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. The Charging Party since November 25, 1987, has been
and is the certified bargaining agent of Respondent’s em-
ployees in the following appropriate unit:
All production and maintenance employees employed
by the Respondent at its Arlington, Tennessee, facility
but excluding all truckdrivers, office and plant clerical
employees, watchmen, guards and supervisors as de-
fined in the Act.
4. By its written warning on or about November 15, 1988,
and by its suspension on or about November 22, 1988, of its
employee, Josephine Benson, because of her membership in,
sympathies for and activities on behalf of the Charging Party,
the Union herein, Respondent unlawfully discriminated
against her because of her union activities, discouraging
membership and activities therein, thereby violating Section
8(a)(3) and (1) of the Act.
5. By bypassing the Union and dealing directly with em-
ployees at a time that it was obligated to bargain only with
the Charging Party; by implementing changes in its insurance
plan on or about January 3, 1989, without having reached a
valid impasse in negotiations with the Charging Party; by
failing to meet with the Union for the period September 6,
1988, November 11, 1988, because Respondent mistakenly
took the position that the parties were at good-faith impasse;
by withdrawing from or repudiating its agreement on holi-
days, on or about November 16, 1988; by advancing irrele-
vant and unlawful reasons for rejecting the Union’s request
for dues checkoff, by suspending collective bargaining until,
inter alia, resolution of the instant unfair labor practice alle-
gations, and by its engaging in surface bargaining whereby
it failed to manifest a sincere effort to reach agreement with
the Charging Party except on terms unilaterally satisfactory
to Respondent, Respondent violated Sections 8(a)(5), 8(d),
and 8(a)(1) of the Act.
6. By failing and refusing to provide the Union, in writing
with requested information regarding (a) the identities of em-
ployees and rates of pay of newly hired employees paid
higher rates of pay under its interim pay plan implemented
in June 1989; and (b) whether it has implemented and en-
forced the substance abuse plan in any of its nonunion
plants, and if not why it is proposing such plan at its Arling-
ton plant, Respondent has violated Section 8(a)(5) and (1) of
the Act.
7. By unilaterally implementing its interim pay plan in
June 1989, Respondent violated Section 8(a)(5) and (1) of
the Act.
8. The above unfair labor practices affect commerce as al-
leged in the several complaints herein.
THE REMEDY
Having found that Respondent engaged in the unfair labor
practices as set forth above, including bad-faith and surface
bargaining, I recommend that it cease and desist from engag-
ing in such conduct, like and related conduct, and take cer-
tain affirmative action designed to effectuate the policies of
the Act. I recommend that Respondent be ordered to bargain
collectively and in good faith, on request, with the Union as
the exclusive bargaining representative of its employees in
the unit set forth above; and in the event that an understand-
ing is reached, to embody any such understanding in a
signed agreement; and to post the attached notice. Part of
good-faith bargaining is to promptly supply the information
lawfully requested by the Union.
In order to ensure that the employees will be accorded the
statutorily prescribed services of their selected bargaining
agent for the period provided by law, I recommend that the
initial year of the certification begin on the date that Re-
spondent commences to bargain in good faith with the Union
as the bargaining representative in the appropriate unit.
Overnite Transportation Co., 296 NLRB 669 (1989).
In addition, I shall recommend that any written warnings
issued to Josephine Benson, in November 1988, be rescinded
and removed and that Josephine Benson be notified in writ-
1074 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
28 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
29 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
ing by Respondent of such action. I shall also recommend
that Josephine Benson be made whole for any wages or other
benefits she may have lost as a result of her being unlawfully
suspended on or about November 22, 1988, under the for-
mula set forth in F. W. Woolworth Co., 90 NLRB 289
(1950). Interest shall be computed as proscribed in New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987). See also
Florida Steel Corp., 231 NLRB 651 (1977).
In making the findings of and remedying Respondent’s un-
lawful acts in derogation of good-faith bargaining, violating
Section 8(a)(5) and (1) of the Act, I am not suggesting that
Respondent be required to offer to the Union whatever the
Union wants or that any particular future Respondent pro-
posal be condemned as per se unlawful. Thus, for instance,
Respondent’s bargaining with respect to the checkoff clause,
at bottom, was a refusal to grant the Union’s proposal of a
full-blown checkoff clause on the ground that a further de-
duction would diminish the size of the paycheck. I have con-
cluded that such a rationale is irrelevant and unlawful not
only under Board precedent but in the full context of the bar-
gaining. I have found that such behavior, in conjunction with
Respondent’s other bargaining attitudes at and away from the
bargaining table shows that it was not approaching the col-
lective-bargaining process with an aim of reaching agreement
with the Union. Overnite Transportation Co., supra. Having
found Respondent guilty of repeatedly bargaining in bad
faith, I am, in particular, not suggesting that it accede, for
instance, to the Union’s checkoff demand. I am recommend-
ing to the Board that Respondent’s refusal may not be based
on the assertions that it has so far advanced in the bargain-
ing. I am not suggesting that Respondent be obligated to
make any particular proposal to the Union or to accept any
particular proposal from the Union.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended28
ORDER
The Respondent, Langston Companies, Inc., Arlington,
Tennessee, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Unilaterally implementing any wage rate, substance
abuse plan, insurance plan, or any other term or condition of
employment which is a mandatory subject of bargaining
without having first reached a lawful impasse with Furniture
Workers Division, I.U.E., Local 282, AFL–CIO (the Union)
with respect to bargaining in the unit below described, refus-
ing to meet with the Union at reasonable times for the pur-
pose of collective bargaining; withdrawing or repudiating its
agreement on holidays reached with the Union on or about
November 16, 1988, or any other mandatory terms or condi-
tions of employment; insisting to impasse on the unilateral
control with regard to any future employee wage rates or in-
surance plan, to change wage rates or to change the identity
of the insurance carrier and to alter the details of policy cov-
erage and claims procedures thereunder; refusing to bargain
on the Union offer of a dues-checkoff provision on any irrel-
evant ground; and by surface bargaining without a sincere ef-
fort to reach an agreement with the Union.
(b) The unit in which Respondent is obliged to bargain
collectively in good faith is:
All production and maintenance employees employed
by the Respondent at its Arlington, Tennessee, facility
but excluding all truckdrivers, office and plant clerical
employees, watchmen guards and supervisors as defined
in the Act.
(c) Issuing warnings or reprimands to, suspending, or oth-
erwise discriminating or retaliating against Josephine Benson,
or any other employee, because she or they engage in activi-
ties on behalf of the Union, or any other labor organization,
or engage in concerted activities protected in Section 7 of the
Act.
(d) Failing or refusing to provide the Union, in writing,
with requested information regarding: (a) the identities of
employees and rates of pay of newly hired employees paid
higher pay rates under its interim pay plan implemented in
June 1989; and (b) whether it has implemented and enforced
the substance abuse plan in any of its nonunion plants; and,
if not, why it is proposing such plan at its Arlington, Ten-
nessee plant.
(e) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make whole Josephine Benson for any loss of earnings
that she may have suffered as a result of Respondent’s un-
lawful discrimination against her in the suspension of No-
vember 22, 1988, in accordance with the provisions of the
remedy section of this decision.
(b) Rescind its written warning of November 15, 1988,
and remove from its records all memoranda of, or reference
thereto, as well as Respondent’s unlawful suspension of Jose-
phine Benson on November 22, 1988, and notify Josephine
Benson, in writing, that these actions have been done and
that evidence of these unlawful actions will not be used as
a basis for future personnel actions against her.
(c) At the request of the Union, rescind (1) the insurance
plan implemented in January 1989 and any additions or
modifications thereto; (2) the interim pay plan, implemented
June 1989; and (3) the substance abuse plan.
(d) On request, bargain collectively and in good faith con-
cerning rates of pay, hours of employment, and other terms
and conditions of employment with the above-named Union,
as the exclusive representative of Respondent’s employees in
the above-appropriate unit, and, if agreement is reached, em-
body same in a signed agreement.
(e) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(f) Post at its facility in Arlington, Tennessee, copies of
the attached notice marked ‘‘Appendix.’’29 Copies of the no-
1075LANGSTON COS.
tice, on forms provided by the Regional Director for Region
6, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(g) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.