Chatham Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Nov 24, 1975

221 N.L.R.B. 760 (N.L.R.B. 1975)

760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chatham Manufacturing Company, Inc. and Textile
Workers Union of America, AFL-CIO-CLC. Case
11-CA-5867
November 24, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
JENKINS AND PENELLO
On March 27, 1975, Administrative Law Judge
Melvin J. Welles issued the attached Decision in this
proceeding. Thereafter,. General Counsel, Charging
Party, and Respondent filed exceptions and support-
ing briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has, considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
Our dissenting colleague would find, contrary to
the Administrative Law Judge, that Respondent
violated Section 8(a)(5) of the Act by: (1) refusing to
continue to recognize and bargain with the Union on
and after September 26, 1974, and (2) instituting
changes in the existing wages of employees. We do
not agree.
The General Counsel's initial allegation of an
8(a)(5) violation is based on Respondent's withdraw-
al of recognition from the Union in less than a
reasonable time after the signing of a settlement
agreement. The Administrative Law Judge conclud-
ed that there never was a valid settlement agreement
and therefore Respondent did not violate Section
8(a)(5) by ceasing to recognize the Union thereafter.2
The facts upon which he based this conclusion are as
follows:
In July 1974,3 a group of employees filed a
decertification petition. Early in August the petition
was withdrawn at the request of the Regional
Director apparently because an existing collective-
bargaining contract was a bar. Sometime in the
summer of 1974, the Union filed 8(a)(5) charges
against Respondent. A settlement agreement requir-
i The General Counsel has excepted to the Administrative Law Judge's
failure to find that Respondent violated Sec. 8(a)(3) as well as 8(a)(1) of the
Act by suspending Union Steward Holbrook because of her effort to file a
grievance in behalf of another employee We find merit in this exception
and, accordingly, find that by the aforesaid conduct Respondent also
violated Sec 8(a)(3). See, e.g, Pate Manufacturing Company, 197 NLRB 793
(1972)
2 The dissent suggests that even if no valid settlement agreement existed,
the filing of the decertification petition would not relieve Respondent of its
obligation to bargain In making this assertion, the dissent overlooks the
221 NLRB No. 114
ing Respondent to bargain with the Union and to
submit certain information to the Union was
negotiated and submitted to Respondent for signa-
ture. On August 21, Respondent notified the Region-
al Director that it was prepared to sign the settlement
agreement "except that we' are not willing to do so if
our doing so would in any way prevent or handicap
employees in filing a decertification petition, in case
they wish to do so, at the end of the present contract
... [c]onditional upon the correctness of that
understanding, we have signed and are forwarding to
you herewith the `Settlement Agreement' . . .. If in
any respect, we are not correct in our understanding
about this, please do not accept, but return to us, the
enclosed copy which we have executed." In response
to this letter from Respondent, the Regional Director
made an ambiguous reply. On August 23, Respon-
dent again wrote the Regional Director asking:
Would our entering into the "Settlement Agree-
ment" now under consideration, in any way
prevent or handicap employees in filing a decerti-
fication petition in case they wish to do so, at the
end of the present contract? Under Board
"policy," what is the answer to that question? Will
you not tell us?
Without answering Respondent's query and without
further correspondence, the Regional Director ap-
proved the settlement agreement.
On September 16, a new decertification petition
was filed. On September 26, Respondent refused to
continue to recognize and bargain with the Umon in
view of the filing of the decertification petition. On
October 31, the Regional Director issued the instant
complaint alleging in part that Respondent's refusal
was in violation of Section 8(a)(5). On November 11,
the Regional Director dismissed the decertification
petition.
The Administrative Law Judge concluded on the
basis of the foregoing facts that Respondent, in
approving the settlement agreement, had imposed a
"condition" to its approval of the agreement, namely,
that the settlement agreement would not in and of
itself be a basis for dismissing a subsequently filed
timely, and proper in all other respects, decertifica-
tion petition; but, by issuing the instant complaint
and dismissing the decertification petition, the
theory upon which this case was tried by the General Counsel At the
hearing the General Counsel stated specifically that the violation of Sec.
8(a)(5) was grounded exclusively upon the settlement agreement It was in
reliance upon this assurance that Respondent refrained from introducing
any objective evidence justifying a possible good-faith doubt of the Union's
majority status. It is therefore improper at this stage of the proceeding for
the Board sua sponte to change the theory of the General Counsel's
complaint.
3 All events mentioned hereinafter occurred in 1974 unless specifically
stated otherwise
CHATHAM MFG. CO., INC.
Regional Director violated this "condition." Accord-
ingly, the Administrative Law Judge recommended
dismissing this allegation of the complaint.
Our dissenting colleague argues that: (1) a valid
settlement agreement without conditions existed, and
(2) if the settlement agreement was conditioned as
found by the Administrative Law Judge, no subse-
quent action by the Regional Director can be
construed as having violated the condition. As to the
initial argument, the correspondence set forth above
refutes it. As to the second argument, the Regional
Director, in the light of his experience, could not
have understood Respondent's concern with not
placing any obstacle in the way of a valid decertifica-
tion petition timely filed by employees as meaning
anything other than that the settlement agreement
would not prevent the holding of an election. To
accept the dissent's interpretation of the condition
would render it meaningless. If the Regional Director
was not prepared to accept the condition, he should
have said so and returned the settlement agreement
unsigned as requested by Respondent. Instead, he
made an unenlightening response to Respondent's
query compounding, rather than eliminating, confu-
sion. In the light of this record, we are satisfied that,
at the least, as found by the Administrative Law
Judge, there was no meeting of the minds as to terms
of agreement and therefore no agreement at all.
Accordingly, we adopt the Administrative Law
Judge's - dismissal of this 8(a)(5) allegation of the
complaint.
Our colleague also takes the position that Respon-
dent violated Section 8(a)(5) by implementing,
without adequate notice to the Union, a change in
the method in which blankets processed by a new
automatic blanket cutting machine were handled by
employees after the cutting operation. The change
consisted in Respondent establishing new "tacking
stations" where less skilled "stitch over" work was
performed not by the permanent binding' employees
who had formerly done the stitching, but' by
temporary employees known as "spare hands"
especially hired to perform this function.
In criticizing the adequacy of Respondent's notice
to the Union that there would be implemented in the
binding department' "a change in method of handling
blankets from the new automatic' blanket cutter" our
colleague suggests that Respondent has failed to
comply with the letter' and spirit of its contract with
the, Union, particularly article V, section C thereof.
That provision requires that notice regarding major
changes in work assignments "will be given in
written form . . . stating the number of people
involved by job classification, and the approximate
percent change in the overall standard." The article
continues in the same provision as follows: "The
761
Company will have the right to proceed with the
changes in work assignments . . . as set forth in
Paragraph A of the `Work loads' section, also a part
of Article V. The Company will furnish (if requested
in writing by the Union) the complete specifications
four (4) weeks after the date of the change or the date
of the request whichever is later."
In case of the present change in work assignment
the notice from _Respondent specified that 61 bindery
operators would be affected. Respondent included in
the space on its notification form where the approxi-
mate percent change in the overall standard was to
be shown the notation "New Method"-in our view
putting the Union on notice that it might wish, to
request in writing (as the contract required) complete
specifications about the new work assignments in the
bindery department-such changes being at that
point prospective. In such a ^ situation we view the
"Notification of Change" to the Union as clearly
adequate under Section 8(a)(5). Article V in its
"Work Loads" provision (sec. A bearing upon the
notice requirements) is definitive not only as regards
the Employer's obligations but also as regards the
Union's. In pertinent part it provides:
The Union, and the affected employees, will have
the duty and responsibility to accept new or
changed work loads, machine assignments :' : .
and to cooperate fully with the employer in giving
the new or changed work assignments and
incentive rates a fair test.
Under all the above circumstances, and particular-
ly considering the terms of Respondent's
"Notification of Change" to the Union, and the
latter's failure to request complete information about
the new work procedure and assignments in the
bindery department (at least from April 29 through
the end of August), we find no failure by the
Respondent to fulfill its statutory obligations under
Section 8(a)(5) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Chatham Manu-
facturing Company, Inc., Elkin, North Carolina, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
MEMBER JENKINs, dissenting in part:
The Administrative Law Judge found, and my
colleagues agree, that Respondent;' did not violate
Section 8(a)(5) of the Act by (1) refusing to continue
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to recognize and bargain with the Union on and after
September 26, 1974, and (2) instituting unilateral
changes in the existing wages of employees. Unlike
my colleagues, I would reverse the Administrative
Law Judge and find Respondent's conduct in both
instances violative of Section 8(a)(5) of the Act.
The Administrative Law Judge concluded that the
lawfulness of Respondent's conduct in breaking off
bargaining with the Union on September 26 turned
on the validity of a settlement agreement entered into
by Respondent on August 21, 1974.4 If valid, the
agreement by its terms obligated Respondent to
bargain with the Union for a reasonable period of
time-an obligation which Respondent would have
breached by breaking off bargaining, as it did here, 1
week after the termination of the old contract. See
Theodore P.' Mansour, d/b/a Ted Mansour's Market,
199 NLRB 218 (1972); L M. Jaffee and Sons, 176
NLRB 537 (1969).
In resolving in Respondent's favor the issues raised
by the existence of the settlement agreement; the
Administrative Law Judge advanced alternative,
albeit somewhat inconsistent, rationales. On the one
hand, he found that Respondent's assent to the
August 21 settlement agreement was implicitly
conditioned on an understanding that the settlement
agreement "would not in and of itself be a basis for
dismissing asubsequently filed decertification peti-
tion." He also found, however, that this, condition
was not observed by the Regional Office because it
issued the complaint in this case and thereafter
dismissed the decertification petition. Accordingly,
the Administrative Law Judge concluded that there
was no "meeting of the minds" on the settlement
agreement, hence there was. no agreement at all and
thus there could be no violation of the agreement.
In the alternative, the Administrative Law Judge
concluded that if the Regional Director's approval of
the settlement agreement on August 28 constituted
an acceptance of the agreement, then of necessity it
also constituted an acceptance of Respondent's
condition that a subsequently filed decertification
petition would not be dismissed solely because of the
existence of the settlement agreement. The Adminis-
trative Law' Judge concluded, however, that the
decertification petition was dismissed for "precisely"
this reason . Therefore, he found that the Regional
Office rather than Respondent had breached the
4 Said agreement relates to an earlier 8(a)(5) charge not itself apart of
this case.
5 If no agreement existed on September 26, the question remains whether
on that date, under the circumstances , Respondent could justify its refusal
to continue to bargain with and recognize the Union. Respondent nowhere
claims that its decision in this regard was occasioned by anything other than
the filing of the decertification petition on September 16 In my view this is
insufficient in any event to relieve Respondent of its duty to bargain.
6 See Respondent's letter of August 21 (transmitting acceptance of the
agreement and thus that no legal liability could
attach to Respondent's refusal to bargain.
I find the Administrative Law Judge's reasoning
unsatisfactory and his view of the law mistaken. In
the first place, I am satisfied that a valid 'settlement
agreement existed on September 26, when Respon-
dent refused to continue to recognize and bargain
with the Union.5 Assuming, arguendo, that Respon-
dent's execution of the settlement agreement was
conditioned on an understanding that the'settlement
agreement would not of itself "prevent or handicap
employees in filing a decertification petition," 6 no
subsequent action by the Regional Office can be
construed as having violated such condition. Thus, as
counsel for the General Counsel urged at the hearing,
the existence of the settlement agreement did not
"prevent or handicap" or otherwise hinder filing or
processing of the decertification petition. In fact, the
decertification petition filed on September 16 was
routinely processed by the Regional Office. Not until
November 11-some 6 weeks after Respondent's
decision to sever its relationship, with the Union-
was the petition dismissed. Given this sequence of
events it is simply incomprehensible that the Admin-
istrative Law Judge would find,' or that my colleagues
would agree, that the settlement agreement itself, and
,not Respondent's conduct in breaching the agree-
ment, was the basis for dismissing the decertification
petition. Accordingly,' I would find Respondent's
conduct on and after September 26 a breach of 'the
bargaining provision of the settlement, agreement' and
a violation of Section 8(a)(5) as alleged in the
complaint.
I would find an additional violation of Section
8(a)(5) predicated on Respondent's unilateral imple-
mentation, without adequate notice to the Union, of
changes in terms and conditions of employment.
The record indicates that, on April 29, Respondent
notified the Union of "A change in the method of
handling blankets from the new automatic blanket
cutter." 7 Thereafter, in" early June, Respondent
began to hire temporary employees or "spare
hands," 8 and to set up new work stations where
"stitch over" work formerly performed by permanent
bindery department employees was reassigned to and
performed by spare hands. It is uncontroverted on
the record that the "stitch over" operation was both
simple and profitable; in fact, the Administrative
settlement agreement) as set forth in pertinent part in the ` Administrative
Law Judge's Decision, sec. II , A. Unlike my colleagues in the majority l find
no warrant for gratuitously reading into the language quoted above any
.understanding "that the settlement agreement would not prevent the
holding of an Election."
7 The automatic cutter had been acquired and operated in Respondent's
binding department in February 1974.
8 At the time of the hearing some 40 such spare hands had been hired.
CHATHAM MFG. CO., INC. 763
Law Judge credited the testimony of bindery
department employees that Respondent admitted to
them that the reassignment of this work was intended
to "take the gravy out of your job." It is also
uncontroverted that the only other information given
the Union concerning these changes was indirectly
furnished when Respondent included the classifica-
tion "spare hand" on a rate sheet sent to the Union
in late May.9
Although the skein of the Administrative Law
Judge's reasoning is tangled, it appears that his
conclusion that the April 29 notice was adequate is
based on a finding that the only real "change" here
was in the method of handling blankets. Apparently,
the Administrative Law Judge viewed the hiring of
"spare hands," the setting'up of new work stations,
the reassignment of "stitch over" work, and the
subsequent loss of income by permanent bindery
employees as, little more than the unforeseen and
unforeseeable side effects of Respondent's decision
to change the method of taking blankets from the
automatic cutter.
In my opinion such reasoning totally ignores the
realities of the situation and sanctions this Respon-
dent's conduct in violating both the letter and the
spirit of the contract provisions governing "changes."
Thus, to even an untutored eye it should be obvious
that Respondent's conduct in May and June in
hiring spare hands, setting up new work stations, and
reassigning work to the spare hands constituted
independent and "major" changes in Respondent's
operations, and was not, as the majority seems to
suggest a minor consequence of an initial decision to
change "the method" of handling blankets. It is just
as obvious that these changes adversely affected
permanent bindery employees by causing them to
lose work that was highly profitable; indeed, the
record indicates that bindery employees engaged in
work stoppages had sought to file grievances in
protest over the loss of income attributable to
Respondent's implementation of these changes.10
Under these circumstances the conclusion is inesca-
pable that Respondent was obligated under the
contract to furnish the Union with specific informa-
tion relating to the changes. By no stretch of the
imagination can Respondent's April 29 notice, which
even the Administrative Law Judge described, as
"manifestly not too informative," or the Respon-
dent's inclusion of the classification "spare hand" in
a May rate sheet, be construed as meeting this
obligation. Accordingly, I would find the violation as
alleged in the complaint.
In other respects I join in my colleagues's decision.
9 Under the contract between the parties when "major" changes are to
be made in work assignments or incentive rates the Employer is required to
give written notice that includes specific information as to the number of
employees involved by job classification as well as the approximate percent
change in the overall standards
is In fact , it was the persistence of bindery department employees in
seeking to file grievances over the loss of work and income, and
Respondent's attempt to discipline the union steward for pressing the
grievance , that led to the filing of 8(a )( I) and (3) charges here.
DECISION
STATEMENT OF THE CASE
MELVIN J. WELLES, Administrative Law Judge: This case
was heard at Winston-Salem, North Carolina, on January
14 and 15, 1975, based on charges filed September 16,
1974, and a complaint issued October 31, 1974, and
amended November 20, 1974, alleging that Respondent
violated Section 8(a)(1), (3), and (5) of the Act. The
General Counsel and the Respondent have filed briefs.
Upon the entire record in the case, including my
observation of the witnesses, and upon consideration of the
briefs, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER AND THE LABOR
ORGANIZATION INVOLVED
Respondent, a North Carolina corporation, is engaged in
the manufacture of blankets, upholstery, fabrics, and
wearing apparel at its facilities in Elkin, North Carolina.
During the past 12 months, it both received goods and
materials from points outside the State of North Carolina,
and shipped goods to points outside the State of North
Carolina, valued in excess of $50,000. I find it is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act. The Charging Party, Textile
Workers Union of America, AFL-CIO,-CLC, herein
called the Union , is a labor organization within the
meaning of Section 2(5) of the Act.
H. THE UNFAIR LABOR PRACTICES
A. The Alleged Refusal to Bargain
The Union was certified as the exclusive representative
of Respondent's employees at Elkin, North Carolina, on
November 2, 1972. Sometime in the summer of 1974, the
Union filed 8(a)(5) charges against the Company.' On
August 21, 1974, Respondent 's director of personnel,
Nelson Lowe, sent to the Board 's Region I 1 Office a signed
copy of a settlement agreement , under cover of the
following letter:
We are writing to confirm our conversation of
yesterday with Mr. Williamson.
On July 19, we were notified by our office that a
group of employees of our Company had filed with you
a petition asking for the decertification of the Textile
Workers Union of America, AFL-CIO-CLC as repre-
sentative of employees of this plant. Your notice also
stated that a hearing upon that petition would be
i The posture of this case is such that there is nothing in the record about
the nature of those charges , or when they were filed.
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conducted in the Courtroom, at the City Hall, here in
Elkin, on July 31.
Then on August 9, we received notification from you
that such petition had been withdrawn and that the
hearing upon it had been cancelled.
Shortly after that, the local newspaper here in Elkin
carried a news story stating that the group of
employees, who had filed the decertification petition
and then withdrawn it, had been advised by your office
that they could file another petition at the end of the
contract, which is now in effect between our Company
and the union - and that the group of employees
intended to do so.
Ever since we received notice from your office that
the employees' decertification petition had been with-
drawn, it has been and is our intention to proceed with
bargaining upon a new contract with the union. We
have a meeting scheduled with the union for that
purpose, today, August 21.
We now have before us, however, the question of
entering into a "Settlement Agreement" regarding the
charge pending against us in your Case No. 11-CA-
5810. As we stated to you yesterday, we are willing to
enter into this Settlement Agreement, which you have
sent us - except that we are not willing to do so if our
doing so would in any way prevent or handicap
employees in filing a decertification petition, in case
they wish to do so, at the end of the present contract.
Mr. Williamson specifically informed us that our
entering into the Settlement Agreement in question
would not have any such effect in any way.
Conditional upon the correctness of that under-
standing, we have signed and are forwarding to you
herewith the "Settlement Agreement" which you have
tendered to us. If in any respect, we are not correct, in
our understanding about this, please do not accept, but
return to us, the enclosed copy which we have
executed.
The next day, the Regional Office sent the following letter
to Lowe:
This is in answer to your letter of August 21, 1974, and
I hope it will eliminate any confusion which might exist
concerning the proposed Settlement Agreement in the
above-captioned matter.
This Regional Office has attempted to give you a brief
and informal analysis of Board Policy. However, we are
to give you any assurances or attach any conditions to
to the Settlement Agreement that are not contained in
the terms and conditions of the agreement itself other
than that we will conform to Board policy in handling
any matters involving your Company.
Thank you again for your cooperation.
On August 23, the Company responded as follows:
We have received Mr. Sharp's letter of August 22.
We must say that it seems to us very uninformative.
The letter states that you "hope it will elimate any
confusion". It does not "elimate" confusion, but
certainly creates some.
The question before us is simply this: - would our
entering into the "Settlement Agreement" now under
consideration, in any way prevent or handicap employ-
ees in filing a decertification petition, in case they wish
to do so, at the end of the present contract?
When we met with Mr. Williamson, on August 20,
he twice assured us that the answer to that question is
- no.
Your present letter states that you "will conform to
board policy" on the question. But in so far as your
letter is concerned, it leaves us entirely up in the air as
to what board policy is on this question.
Mr. Williamson's answer to us certainly allowed
for, and included board policy. Are we now to assume
that board policy may be something else? Your letter
certainly creates the inference that you may be leaving
the way open to tell us sometime in the future that
board policy is different from what Mr. Williamson
told us.
The question with which we are confronted is this -
and we repeat - would our entering into the
"Settlement Agreement" now under consideration, in
any way prevent or handicap employees in filing a
decertification petition in case they wish to do so, at the
end of the present contract? Under board "policy",
what is the answer to that question? Will you not tell
us?
On August 28, 1974, the Regional Director, with no
further exchanges of correspondence, approved the afore-
mentioned settlement agreement. That agreement, which
contained a_ "nonadmission clause," provided that the
Company would bargain with the Union, and would
furnish certain information to the Union.
Prior to the Company's August 21 letter, Lowe had gone
to the Regional Office, and discussed the proposed
settlement with a Mr. Williamson, a Board agent. Lowe's
controverted testimony is that Williamson told him that
"the signing of this settlement agreement by our company
would have no effect on the employee petition should it be
filed whatsoever with the exception of no election could be
held in the 60 day posting period."
On September 16, 1974, a decertification petition, Case
11-RD-228 was filed. The Company thereafter, on
September 26, 1974, refused to continue to recognize and
bargain with the Union, and on October 31, the Regional
Office issued the instant complaint, alleging, in part, that
the Company's refusal was in violation of Section 8(a)(5)
and (1) of the Act. On November 11, 1974, the petition in
Case 11-RD-228 was dismissed.2
The General Counsel correctly states that an employer is
obligated to bargain with a union for a reasonable time
after execution of a settlement agreement containing a
bargaining provision, and cannot question the representa-
tive status of the union unless and until (apart from what
considerations permit such a challenge even at an
2 After the hearing in this case, the Board, on January 29, 1975, through
its Executive Secretary, reinstated the petition, directing that it be held in
abeyance pending disposition of the instant case.
CHATHAM MFG. CO., INC. 765
otherwise appropriate time) it has done so. Theodore P.
Mansour, d/b/a Ted Mansour's Market, 199 NLRB 218,
221 (1972); I. M. Jaffe and Sons, 176 NLRB 537 (1969).
Since in this case the Regional Director approved the
settlement agreement on August 28, and the Company
withdrew recognition from and ceased bargaining with the
Union on September 26, it is plain that a "reasonable time"
had not passed. Thus there was a clear violation by
Respondent in withdrawing recognition unless, as Respon-
dent asserts, there was never a valid settlement agreement.
On the uncontroverted facts set forth above, I am
convinced that Respondent is correct, that there never was
a valid settlement agreement. Had Respondent sent a
signed agreement to the Regional Office with no explana-
tion or conditions attached, it could be argued that the
"parol evidence" rule applied, and Respondent could not
rely on the representations made by (or opinion given by)
Board Agent Williamson prior thereto .3 Here, however, the
documentary evidence, that is, the letter from Respondent
to the Region with the signed copy enclosed, specifically
recited Respondent's understanding that its signing a
settlement agreement would not have any effect on the
employees filing of a decertification petition. As set forth
above, the letter went on to state that if Respondent's
understanding in that respect was not correct, it requested
that the executed copy of the agreement be returned to it.
At that point, and without reference to what Williamson
had stated to Lowe on August 20, for the August 21 letter
is self-contained in this respect, the Company manifestly
was attaching a condition to its acceptance of the proposed
settlement agreement, a condition stated as such clearly
and unequivocally. The subsequent exchange of letters
between the Regional Office and Lowe, on August 22 and
23, did nothing to remove the "condition" explicitly
attached to the Company's agreeing to a settlement. Thus,
although Field Examiner Ronald Sharp stated that the
Region, was "unable to give you any assurances or attach
any condition to the Settlement Agreement that are not
contained in . . . the agreement itself," Lowe's response
repeated the original question, and reiterated the Compa-
ny's understanding, an understanding essential to having a
binding settlement agreement.
There is no necessity for any extended discourse on the
law of contracts, for "The rule is fundamental that an
acceptance must comply with the terms of the offer . . .
Am Jur., 2d Sec. 62. This is not a situation which bangs
into play the "parol evidence" rule, other than to state that
it has no application. For there is no attempt by
Respondent here to alter the terms of a written agreement,
rather,, the attempt, and a successful one, is to demonstrate
that there was no meeting of the 'minds, and therefore no
agreement at all.4
3 Although I question whether a governmental agency should, in
circumstances such as these , take such a technical view-
4 Even were the Regional Director's approval of the settlement
agreement on August 28 viewed as an "acceptance " of the Company's
"offer," such acceptance would necessarily include the "understanding" set
forth in the Company's August 21 letter as a condition to the offer, and
would then require the Region not to dismiss a subsequently filed
decertification ', petition on the sole ground of the settlement agreement's
existence . It would be , to use an old common law term , an "aleatory
The General Counsel argues that the "advice" given by
Board Agent Williamson to Lowe was "sound advice,"
because "Lowe did not inform Williamson of Chatham's
plans to sever bargaining relations with the Union
immediately upon receipt of the decertification petition. It
was Respondent's activity in severing bargaining and that
action's precipitation of unfair labor practice charges in the
instant case that barred the decertification petition." The
"condition" set forth by Lowe to Williamson in the August
21 letter of transmittal, asserts the General Counsel, "was
not an agreement from the NLRB to take all actions
necessary to protect a further decertification petition." I
agree as to the last portion of the General Counsel's
contention, in that a dismissal of a subsequently filed
decertification petition for reasons unrelated to the
existence of a settlement agreement, e.g., for an insufficient
showing of interest, or for contract bar reasons, would have
nothing to do with the "condition" imposed. Implicit in the
"condition," however, was that the settlement agreement
would not in and of itself be a basis for dismissing a
subsequently filed timely, and proper in all other respects,
decertification petition. But, by issuing the instant 8(a)(5)
complaint and dismissing the decertification petition, that
is precisely what occurred here.
In view of the agreement by the General Counsel and the
Respondent that this aspect of the case turns on the
existence of a valid settlement agreement, I find no
violation of Section 8(a)(5) of the Act by Respondent's
withdrawal of recognition on September 26, 1974.5
B. The Alleged Unilateral Wage Change
Respondent admits that it decided, prior to April 1974,
to effect certain changes, and that it did so thereafter. It
claims, however, that "the changes were gradual," and that
"the impact upon the employees was slight "6 Respondent
also contends that it notified the Union of these changes,
as required by the collective-bargaining agreement with the
Union by means of a "Standards Change" notification to
the Union on April 29, a "rate sheet" sent to the Union on
May 27, and seniority rosters furnished to the Union in
June and July, and that the Union failed to avail itself of
the opportunity afforded by the Company's notifications to
seek to bargain about the changes.
The General Counsel, on the other hand, claims that the
changes were major, that their impact upon the employees
was serious, and that the purported notification to the
Union was ambiguous, and in no way indicated to the
Union the extent and effects of the changes. As the
General Counsel seems to agree that the changes could
contract " See 6 Williston on Contracts, Sec. 889
5 There is no occasion to reach or consider the General Counsel's
contention, raised in its brief, that Respondent must, show "objective
considerations" supporting an asserted ' doubt of majority status . As stated
at the outset , if there was a valid settlement agreement , such "objective
considerations" would be unavailing, in view of the short time period of
bargaining pursuant to the settlement agreement If there was no settlement
agreement, that ends the case.
6 Based on Lowe's testimony to that effect
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have been put into effect "unilaterally" provided notice to
the Union of the full extent of the changes had been given,7
resolution of this allegation seems to turn on whether,
pursuant to the contractual provisions, the "notices" were
adequate. The mere fact that the actual changes may have
had, when fully implemented, more of an effect upon the
employees than was originally contemplated or known
does not, in and of itself, make the notices deficient.
The general effect of the "change" here was the
installation in February 1974, of an automatic cutter in the
Company's binding department. On April 29, 1974, the
Company sent the Union a notification of a "standards
change" in the binding department. Nelson Lowe testified,
and the contractual provision in question supports his
testimony, that any change in work assignments, pay rates,
methods, incentive pay, or the like, requires notification to
the Union, and is considered a "standards change." The
April 29 notice specified a change in the binding
department, involving the 61 employees there, that a "new
method" was involved, and under ' "Description of
Change," was typed "A change in method of handling
blankets from the new automatic blanket cutter." Follow-
ing this notification, there was a "gradual" change in the
way blankets coming off the automatic cutter were
handled. The Company started, in early June, to hire
temporary "spare hands," because of increased pro-
duction,8 and it set up "tacking stations," where certain
work on the blankets called "stitch over" would be done by
spare hands, freeing the more skillful regular bindery
employees for the work of binding the blankets, where their
higher skills were essential. This resulted in a partial loss to
the bindery employees of the relatively easy stitch over
work, and as such had the potential of detrimentally
affecting their earnings .9 Apart from the single instance
referred to in the preceding footnote, no evidence was
presented to show the actual effect of the change.1° The
Company increased the number of spare hands, to 12 by
June 15, to 19 by June 29, and to 22 by July 6.'At the time
of, the hearing, on January 15, 1975, it had about 40 spare
hands.
Whether the Company's "notifications" complied with
the contract's provisions is not easy to determine. The
contract does seem to indicate that the Company was not
required to give any extensive details of changes, for it
provides that following a change, the Union could request
"specifications." But the April 29 notification here was
manifestly not too informative. Since the entire "change"
that the General Counsel alleges was made unilaterally
includes the hiring of the spare hands, else the April 29
change could not have detrimentally affected the earnings
of the bindery department employees, it would seem to
have been incumbent upon the Company to notify the
7 The contract provided that the Company could make changes,
provided that it notified the Union, and the Union would then be able to
question the changes, get more information about them, and "bargain," or
"grieve," concerning them
8 Based on increased customer orders, and apparently attributable in
part to the automatic cutter,
9 Employee Brenda Anderson testified that she made $18 to $22 less
after August I than prior thereto as a result of this change Company
records show that she earned an average of only $2 58 per week less after
August 1 than before As the General Counsel points out, it may be that
there is no conflict here - that her regular earnings, because of increased
Union of that "change" as well. The Company claims to
have satisfied that requirement by a "rate sheet" sent to the
Union May 27, 1974, just prior to the hiring of the first two
spare hands, which showed the classification of spare hand
being added to the bindery department. And the Company
also claims that the periodic seniority rosters furnished to
the Union showed the Union both the classification and
the numbers of the spare hands.
Although the matter is not free from doubt, for the
resulting changes in methodology did in fact partially take
away a "simple" operation (Lowe's testimony) from the
bindery operators, which made it easy for them to earn
maximum incentive pay, and gave much of that work to
newly hired temporary spare hands, a new classification,ir
I am not satisfied, on the evidence in the record,
particularly in view of the lack of any really probative
evidence of the detriment to the employees resulting from
the change (only that of Brenda Anderson referred to
earlier), that the Company was not complying with the
letter of the contract's requirement and the past practice as
described by Nelson Lowe. In hewing to that requirement,
perhaps the Company was seeking to get away with a
gradual change, to do what Roth told Anderson in
September, "take the gravy out of your job," without
giving the Union enough specific information to alert the
Union to the true effects of the "standards change" which
the Company notified the Union of on April 29. But
everything that happened thereafter was "out in the open,"
the hiring of the temporary spare hands, and the setting up
of the tacking stations. And the Union could at any time
have sought more information, grieved, or demanded
bargaining about the changes, but it did not. In these
circumstances, I conclude that there is not substantial
evidence in this record to support the complaint's allega-
tion in this respect, and will recommend its dismissal.
C. The Alleged Refusal to Process a Grievance and
the Suspension of employee Gerry Holbrook
The complaint alleges that Respondent refused to
process a grievance presented by employee Gerry Hol-
brook, suspended her for 12 days for attempting to process
the grievance, and therefore violated Section 8(a)(1) and
(5) with respect to the refusal to process the grievance, and
8(a)(1) and (3) with respect to the suspension of Holbrook.
On September 10, 1974, Holbrook, who was the steward
for all three shifts in the bindery department, was told by
two employees, Brenda Anderson and Reba Haynes, that
they wanted her to file a grievance about "the new girls
getting all the easy. work." She went to Superintendent
Tucker, according to her testimony, and told him she had a
grievance. Tucker told her to go back to work and she did,
production, offset any loss resulting from less stitch over incentive earnings
It might also be, of course, that other factors caused whatever the real
reduction in Anderson's earnings was
10 By "change," at this point, I refer not only to the installation of and
method of handling blankets coming from the automatic cutter, but also the
hiring of the spare hands and the setting up of the tacking stations
11 Brenda Anderson testified credibly that Superintendent Bill Roth told
the bindery department employees at one point , when they were protesting,
that they "were much too skilled to be wasting their time on the stitching,"
that "In other words, I am taking the gravy out of yourlob "
CHATHAM MFG. CO., INC.
but less than 30 minutes later she went back to Tucker, this
time accompanied by employee Gerry Tharington, with,a
short "discussion" ensuing about incentive pay. Then
Holbrook and Tharington went to Tucker's office (still
according to Holbrook's testimony), where Holbrook again
told Tucker she had a grievance. Tucker told both
employees to return to work or he would call a guard.
Tharington did return to work at that point, but Holbrook
persisted in telling Tucker she had a grievance to file. After
several go-arounds of this nature, and a request by
Holbrook to talk to a union representative on the
telephone, denied by Tucker, who said only that she could
call her son, a company guard and a city policeman came
and escorted her out of the plant. The next day, she was
given a 12-day suspension for' "disobeying an order."
Gerry Thanngton also testified that Holbrook told Tucker,
when Tharington accompanied Holbrook, that she wanted
to file a grievance, and she confirmed, in effect, the rest of
Holbrook's testimony to the extent that she was present
during the incident. Tucker, on the other hand, testified
that the word "grievance" was never used, and indeed, that
about the only thing said to him by Holbrook was that she
wanted to cal( the union representative, although he has
Tharington asking him "if I thought it was fair to give the
good work to the spare hands and new employees," and
that there was some discussion of this. Finally, after
Holbrook refused to go back to work despite his repeated
requests that she do so, he called Nelson Lowe, and told
him to send the guard. The rest happened as Holbrook
testified.
The contract provides, in article XVI, "Any and all
grievances ... shall first be taken up orally with the
Supervisor by the aggrieved employee personally or .. .
the shop steward ...." In addition, both Lowe and
Tucker testified as to the Company's policy being to permit
an employee to leave her job at any time and go to a
supervisor to present a "problem, or a grievance, whatever
you want to call it." (Lowe's words). In view of this
testimony and the contract's language, there is no question
but that Holbrook, to the extent she came to Tucker to
"file a grievance," 12 was engaged in a protected activity.
Respondent contends, however, in reliance on Tucker's
testimony, that Holbrook and Tharington never stated they
wanted to file a grievance, that Holbrook never "wrote out
any grievance" (she did not), and that no union official
thereafter filed any grievance in this respect. Assuming,
arguendo, that the two employees never stated they wanted
to file a grievance, Tucker's own testimony makes plain
that what they came to see him about was in fact a
grievance , and that he would have known it. In the first
place, Holbrook was the Union's steward in the depart-
ment , and she had filed at least three grievances with
Tucker before that. Second, as noted above, this method of
handling grievances at this first stage, by informal
discussion with the supervisor involved, was explicitly set
12 "File" does not connote anything written, or formalized, as the
contract and the testimony make clear
13 Indeed, Lowe testified that ,a supervisor would normally "accept and
listen to" a grievance , except when other pressing matters precluded him
from doing so Lowe gave as an example of such pressing matters : "If I am
a supervisor , and I have got an employee here with an arm caught in a
dryer, and an employee comes up and says, 'I want to file a grievance,'
767
forth 'in the contract, and confirmed by the testimony of
both Lowe and Tucker.13
Finally, Tucker stated, on cross-examination, that he
knew when the shift started that night that the second shift
employees had not worked because of a complaint about
the new employees getting the stitch over work, that he
"wondered if it would not take place on my shift," that he
knew what Tharington was talking about, that he did not
want to deal with a union representative "on any
grievance" (the latter with respect to his refusing to let
Holbrook call a union representative). The foregoing
recital demonstrates to me that Tucker knew what
Holbrook was there for, and wanted to avoid discussing
the grievance, however it may have been labelled, with her
and Tharington. Therefore, in the light of the contract and
the practices as described by Lowe, it is clear that
Holbrook was in fact suspended for engaging in a
protected act, and that Respondent thereby violated
Section 8(a)(1) of the Act.
I do not, however, regard the "refusal" to handle the
grievance as anything more than, at the very most, a
breach of contract by Respondent on one occasion, and do
not conclude that the incident entailed a violation of
Section 8(a)(5). A breach is not a repudiation, particularly
when it involves a single instance , by one supervisor, at the
lowest stage of the grievance procedure.
CONCLUSIONS OF LAW
1. By suspending- Gerry Holbrook because of her
protected concerted activities, Respondent engaged in
unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and Section 2(6) and (7) of the
Act.
2. Respondent has not violated the Act in any other
respect.
THE REMEDY
I shall recommend that Respondent cease and desist
from its unfair labor practices, that it make whole Gerry
Holbrook, with backpay, computed as provided in F. W.
Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962), and take
certain affirmative action in order to effectuate the policies
of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 14
Respondent, Chatham Manufacturing Company, Inc.,
Elkin, North Carolina, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
certainly I am going to ask him `would you mind waiting about it" "
11 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
768 DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD
(a) Suspending or in any other manner discriminating
against employees because they have engaged in concerted
activities.
(b) In any" like or related manner interfering with,
restraining, or coercing their employees in the exercise of
their rights protected by Section 7 of the Act.
2. 'Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Make Gerry Holbrook whole for any loss of earnings
she may have suffered, `in the manner set forth in the
section hereof entitled "The Remedy."
(b) Preserve, and, upon 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 records necessary to
analyze the amount of backpay due under the terms of this
Order.
(c) Post at its place of business in Elkin, North Carolina,
copies of the attached notice marked "Appendix." 15
Copies of the notice, on forms provided by the Regional
Director for Region 11, after being signed by an authorized
representative of the Company, shall be posted by
Respondent immediately upon receipt thereof, and main-
tained for 60 consecutive days thereafter, in conspicuous
places, including all places at all locations where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Company to ensure that said notices are
not altered,, defaced, or covered by any other material.
(d) Notify said Regional Director, in writing, within 20
days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED-, that the complaint be
dismissed in all other respects.
15 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, 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 "
APPENDIX
NOTICE To_ EMPLOYEES
POSTED BY ORDER, OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT suspend or otherwise discriminate
against any employees because of their concerted
activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights guaranteed by the National Labor Rela-
tions Act.
WE WILL pay Gerry Holbrook for losses she suffered
as a result of our having discharged her in June, 1974.
CHATHAM MANUFACTURING
COMPANY, INC.