International Furniture Co.

National Labor Relations Board - Board Decisions

Jul 14, 1953

106 N.L.R.B. 127 (N.L.R.B. 1953)

INTERNATIONAL FURNITURE COMPANY 127
mately 25 seasonal drivers who worked an average of 5 or 6
months. Many are rehired from season to season . We find that
the seasonal drivers are properly included in the unit with the
permanent drivers and in view of the tenure of their employ-
ment are eligible to vote.6
We find that the following employees of the Employer con-
stitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act:
All permanent and seasonal drivers employed by the Em-
ployer at its West Sacramento , California , plant, excluding all
other employees , guards , and supervisors as defined in the
Act. T
5. Because the season in the Employer ' s fuel oil business
has passed , we shall not direct an election at this time. Fol-
lowing our customary practice in seasonal industries , we shall
direct that the election be held during the Employer's next
season at or near the employment peak on a date to be deter-
mined by the Regional Director , among the employees in the
appropriate unit, who are employed during the payroll period
immediately preceding the date of the issuance bythe Regional
Director of the notice of election.
[Text of Direction of Election omitted from publication.]
6See Fox DeLuxe Foods , Inc., 96 NLRB 1132; cf. California Spray-Chemical Corp., 86
NLRB 453.
7 In its petition the Petitioner also sought to exclude part - time drivers from the unit.
The Employer was silent on this matter . Since it appears such drivers are employed only
on infrequent occasions and for short periods of time , we find the part-time drivers are
casuals and ineligible to vote.
INTERNATIONAL FURNITURE COMPANY and UPHOLSTER-
ERS' INTERNATIONAL UNION OF NORTH AMERICA,
LOCAL 188, AFL . Case No. 10-CA-1393 . July 14, 1953
DECISION AND ORDER
On April 13, 1953 , Trial Examiner Frederic B. Parkes, 2nd,
issued his Intermediate Report in the above -entitled proceeding,
finding that the Respondent had engaged in and was engaging in
certain unfair labor practices and recommending that it cease
and desist therefrom and take certain affirmative action, as set
forth in the copy of the Intermediate Report attached hereto.
Thereafter , the Respondent filed exceptions to the Intermediate
Report and a brief in support thereof.
The Board ' has reviewed the rulings of the Trial Examiner
made at the hearing and finds that no prejudicial error was
committed. Except as noted below, the rulings are hereby
1 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers
in connection with this case to a three- member panel [Members Houston, Murdock, and
Peterson).
106 NLRB No. 23.
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
affirmed. 2 The Board has considered the Intermediate Report,
the exceptions , the brief , and the entire record in the case,3 and
hereby adopts the findings , conclusions , and recommendations
of the Trial Examiner, with the following additions.
1. The Respondent contends that the Trial Examiner ' s finding
that the Respondent insisted that the terms of the contract ex-
pire with the anniversary of certification is not supported by
the evidence . In this connection , it refers to the fact that in
May 1951, it offered to extend a proposed 6-month contract to
a year. ' However , witness Woodall ' s uncontradicted testimony
is that from July 31, 1951, the Respondent adamantly insisted
that it would not agree to a contract with a termination date
subsequent to December 15, 1951, the date marking the expira-
tion of the certification year.
We agree with the Trial Examiner that the Respondent's
insistence on and after July 31, 1951, that the term of any
contract should not extend beyond the certification year was
evidence of bad-faith bargaining. Although insistence upon
such a termination period is not per se an unfair labor practice,
when the insistence proceeds from bad faith motivation or an
intent to achieve an illegal purpose it is unlawful. In the cir-
cumstances of the present case , we find that the Respondent's
2 The Trial Examiner's refusal to revoke the subpena directed to Eloise Stewart Tharpe,
a commissioner of conciliation of the Federal Mediation and Conciliation Service, is hereby
overruled and the subpena quashed.
The Federal Mediation and Conciliation Service has promulgated an order (General Order
No. 1) specifically prohibiting officers and employees connected with the Service from
testifying in any court or administrative proceeding with respect to any information coming
to their knowledge in their official capacity without the written consent of the director.
No such consent was given in the present case.
As the Board said in Tomlinson of High Point, Inc., 74 NLRB 681, 685; involving a similar
regulation of the predecessor Conciliation Service:
However useful the testimony of a conciliator might be to the Board in any given case,
we can appreciate the strong considerations of public policy underlying the regulation
and the refusal to make exceptions to it, because of the unique position which the con-
ciliators occupy To execute successfully their function of assisting in the settlement
of labor disputes, the conciliators must maintain a reputation for impartiality, and the
parties to conciliation conferences must feel free to talk without any fear that the
conciliator may subsequently make disclosures as a witness in some other proceeding,
to the possible disadvantage of a party to the conference. If conciliators were permitted
or required to testify about their activities . . not even the strictest adherence to
purely factual matters would prevent the evidence from favoring or seeming to favor
one side or the other. The inevitable result would be that the usefulness of the Concilia-
tion Service in the settlement of future disputes would be seriously impared, if not
destroyed. The resultant injury to the public interest would clearly outweigh the benefit
to be derived from making their testimony available in particular cases.
Upon grounds of public policy, the Trial Examiner should therefore have revoked the subpena
directed to Commissioner Tharpe. New Britain Machine Company, 105 NLRB 646; Tomlin-
son of High Point, Inc., supra : see Wigmore on Evidence (Third ed. 1940), sec. 2316.
3 The Respondent has requested oral argument The request is denied as the record and
briefs, in our opinion, adequately set forth the issues and positions of the parties.
4The Respondent also refers in its brief, without a transcript reference, to alleged testi-
mony by witness Woodall that on July 11, 1951, the Respondent was willing to enter into a
6-month contract which would expire January 11, 1952, after the certification year. We are
unable to find any record of such testimony.
INTERNATIONAL FURNITURE COMPANY 129
insistence that any contract negotiated expire with the anni-
versary of the certification, then but a few months away, was
made in bad faith.6
We consider the instant case distinguishable from Hinde &
Dauch Paper Company, where the employer's unwillingness
to make a contract to run beyond the end of the certification year
took place in a context in which there was no other evidence of
unfair labor practices and in which there was receipt of notice
that the employees had overwhelmingly repudiated the union.
By contrast, it is apparent that the insistence in the instant
case, occurring in a context of unfair labor practices, was not
based on good faith.
2. The Respondent also contends that the Union did not act in
good faith because it included in its written contract proposals
various provisions allegedly unlawful. However, the Union
throughout the negotiations indicated that it was prepared to
change any proposals which might be unlawful. We reject the
Respondent's contention that the Union did not act in good
faith.
3. In attacking the finding of the Trial Examiner that the
Union's majority continued after the expiration of the certifi-
cation year, the Respondent relies on the Dorsey Trailers
case.' In that case, the court adopted the finding of the Trial
Examiner that a presumption of a union's continuing majority
had been overcome by evidence that a majority of employees
in the unit had voted within a month's time to reject a union
recommendation for a strike and to disband the union. There
is no similar evidence in the present case of employee repudi-
ation of the Union. At most the circumstances relied upon by
the Respondent show some change in the composition of the
unit.
ORDER
Upon the entire record in the case, and pursuant to Section
10 (c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that the Re-
spondent, International Furniture Company, Cornelia, Georgia,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Upholsterers' Inter-
national Union of North America, Local 188, AFL, as the
exclusive bargaining representative of all production and
maintenance employees, truckdrivers, and firemen at the
Respondent's Cornelia, Georgia, plant, excluding office and
clerical employees, guards, and supervisors as defined in the
Act.
s Cf. Dixie Corporation, 105 NLRB 390; The Hinde & Dauch Paper Company, 104 NLRB
847.
6N. L. R. B v. Dorsey Trailers, Inc , 179 F. 2d 589, (C. A. 5), enforcing as modified
80 NLRB 478. In this case, the Court of Appeals reversed the Board's finding of a violation
of Section 8 (a) (5) upon the ground that the Board had failed to prove that the union repre-
sented a majority of employees after the return of men to work following a strike, so as to
make the refusal to bargain an unfair labor practice.
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Unilaterally granting paid holidays , wage increases, and
other benefits to employees in the appropriate unit without
prior consultation with Upholsterers' International Union of
North America, Local 188, AFL, as the exclusive representa-
tive of the employees in the appropriate unit.
(c) In any other manner interfering with the efforts of
Upholsterers' International Union of North America, Local
188, AFL, to bargain collectively with the Respondent.
2. Take the following affirmative action, which the Board
finds will effectuate the policies of the Act:
(a) Upon request, bargain collectively with Upholsterers'
International Union of North America, Local 188, AFL, as
the exclusive bargaining representative of the employees in
the above-described unit, with respect to rates of pay, wages,
hours of employment, or other conditions of employment, and,
if an understanding is reached, embody such understanding in
a signed agreement.
(b) Post at its plant in Cornelia, Georgia, copies of the notice
attached to the Intermediate Report and marked "Appendix
A." 7 Copies of such notice, to be furnished by the Regional
Director for the Tenth Region, shall, after being duly signed by
the Respondent ' s representative., be posted immediately upon
receipt thereof for sixty (60) consecutive. days thereafter in
conspicuous places , including all places where notices to
employees are customarily posted . Reasonable steps shall be
taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Tenth Region, in
writing, within ten (10) days from the date of this Order, of
the steps taken to comply herewith.
7 This notice, however, shall be and hereby-is amended by striking from the first paragraph
thereof the words, "Recommendations of a Trial Examiner." and substituting in lieu thereof
the words: "A Decision and Order." In the event that this Order is enforced by decree of
a United States Court of Appeals, there shall be substituted for the words "Pursuant to a
Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals,
Enforcing an Order."
Intermediate Report
STATEMENT OF THE CASE
Upon charges duly filed by Upholsterers' International Union of North America, Local 188,
AFL, herein called the Union, the General Counsel of the National Labor Relations Board,
by the Regional Director of the Tenth Region (Atlanta, Georgia), issued a complaint dated
June 6, 1952, against International Furniture Company, herein called the Respondent, alleging
that the Respondent had engaged in and was engaging in unfair labor practices affecting com-
merce within the meaning of Section 8 (a) (1) and (5) of the National Labor Relations Act, as
amended, 61 Stat 136, herein called the Act Copies of the charges, complaint, and notice of
hearing were duly served upon the Respondent and the Union
With respect to the unfair labor practices, the complaints alleged in substance that the
Respondent: (1) About January 3, 1951, and thereafter, had refused to bargain collectively
with the Union as the exclusive bargaining representative of the Respondent's employees in
an appropriate bargaining unit, although a majority of the employees in the unit had desig-
nated and selected the Union as their statutory representative and although the Union had
previously requested that the Respondent bargain collectively with it as the statutory repre-
INTERNATIONAL FURNITURE COMPANY 131
sentative of the Respondent's employees; and (2) about January and February 1952, bargained
directly and individually with its employees in the appropriate unit concerning rates of pay,
wages, hours of employment, and other conditions of employment, and unilaterally granted
wage increases and increased holidays to such employees The complaint, as amended,
further alleged that by the foregoing conduct the Respondent has engaged in unfair labor
practices within the meaning of Section 8 (a) (1) and (5) of the Act.
Thereafter, the Respondent duly filed an answer , admitting certain allegations of the com-
plaint but denying that it had engaged in the alleged unfair labor practices and setting forth
certain affirmative defenses
On June 11, 1952, the Respondent filed with the Regional Director a motion that the para-
graph of the complaint alleging that the Respondent had taken unilateral action be stricken
for the principal reasons, among others, that the complaint failed to allege that by such
action the Respondent violated the Act and that none of the charges alleged that such conduct
was unlawful On June 12, 1952, the Regional Director issued an "Order Referring to Trial
Examiner Respondent's Motion to Strike " On June 27, 1952, Trial Examiner Arthur Leff
issued an "Order on Motion to Strike," dismissing the motion and directing the General
Counsel to notify the Respondent 10 days prior to the hearing whether the General Counsel
contended that the unilateral action taken by the Respondent constituted an unfair labor
practice. By letter dated July 8, 1952, the General Counsel advised the Respondent that the
former contended that the unilateral action of the Respondent as alleged in the complaint con-
stituted violations of Section 8 (a) (1) and (5), and early in the hearing, the General Counsel's
motion to so amend the complaint was granted.
On July 16, 1952, Eloise Stewart Tharpe, a commissioner of conciliation of the Federal
Mediation and Conciliation Service, herein called the Conciliation Service, filed with the Re-
gional Director a petition to revoke the subpena issued at the request of Herbert B. Kimzey,
counsel for the Respondent, and served upon her on July 14, 1952, directing her to appear and
testify at the hearing in the instant matter. On July 17, 1952, the Regional Director issued an
"Order Referring Petition to Revoke Subpoena to Trial Examiner for Ruling." On July 25,
1952, the Respondent filed an answer to the petition to revoke subpena. On July 30, 1952, Trial
Examiner Arthur Leff issued an order denying the petition to revoke subpena.
Pursuant to notice, a hearing was held from December 15 to 17, 1952, inclusive, at Cor-
nelia, Georgia, before Frederic B. Parkes, 2nd, the undersigned Trial Examiner duly
designated by the Chief Trial Examiner. The General Counsel, the Respondent, the Concilia-
tion Service, and Commissioner Eloise Stewart Tharpe, were represented by counsel and
the Union by official representatives Full opportunity to be heard, to examine and cross-
examine the witnesses, and to introduce evidence bearing on the issues was afforded all
parties
At the outset of the hearing, counsel for the Conciliation Service and for Commissioner
Eloise Stewart Tharpe, renewed the petition to revoke subpena previously filed by Com-
missioner Tharpe and pointed out that General Order No 1 of the Conciliation Service
required Commissioner Tharpe "to decline to testify in this proceeding, to produce any
records concerning any information she might have received in her official capacity as a
Commissioner of Conciliation " Following a statement by the Respondent as to the nature
of the evidence it desired to adduce through the testimony of Commissioner Tharpe, the
undersigned ruled that it appeared that her testimony would be relevant to the issues of the
proceeding and that since the Board's Rules and Regulations provided only two grounds for
the revoking of subpenas, namely, "the evidence whose production is required does not
relate to any matter under investigation or in question in the proceedings or the subpena
does not describe with sufficient particularity the evidence whose production is required,"
the undersigned was impelled to deny the petition to revoke the subpena. However, in
presenting its case, the Respondent found it unnecessary to call Commissioner Tharpe as
a witness
Early in the hearing, the Respondent moved that the General Counsel be required to furnish
it with a more definite statement concerning the unilateral conduct of the Respondent alleged
in the complaint The motion was denied The Respondent, in addition, moved that the com-
plaint be dismissed and that the paragraphs of the complaint setting forth the allegations in
respect to the Respondent's refusal to bargain with the Union be stricken, for the reason that
the complaint' s allegations that the Respondent had refused to bargain with the Union since
January 3, 1951, was barred by the 6-month period of limitations of Section 10 (b), which
commenced to run on April 24, 1951, 6 months prior to the service of the Union's original
charges upon the Respondent on October 24, 1951 The Respondent also renewed its motion
filed with the Regional Director on June 11, 1952, and detailed above, to strike certain
allegations of the complaint The motions were denied. In oral argument at the conclusion
322615 0 - 54 - 10
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the hearing and in its brief, the Respondent renewed these motions The-Respondent relies
upon the Pennwoven I and the Grain Millers 2 cases in support of its contention that "there
is no such thing as a continuing tort arising out of a refusal to bargain, and that-the statute
of limitations commences to run on the first day of the refusal," and accordingly that the
complaint's allegations that the Respondent violated Section 8-(a) (5) and (1) of the Act were
within the bar of Section 10 (b) of the Act These cases are inapposite to the circumstances
of the instant proceeding, in each, the conduct alleged as unfair labor practices occurred
prior to the commencement of the 6-month period of 10 (b) and there were no unfair labor
practices on the part of the employer within the 6-month period "to bridge the fatal gap in
time between the happenings relied on as unfair labor practices and the six months' bar " 8
The Board's decisions in the Sanson Hosiery4 and Gagnon Plating5 cases are dispositive of
the Respondent's contentions as to the effect of Section 10 (b) In the Gagnon Plating case,
the Board held as follows
As to the first of these exceptions, it is true that the complaint issued in this case
stated that the Respondent "has at all times since on or about April 1, 1949, pursued
a course of conduct refusing and continuing to refuse to bargain collectively in good
faith with the Union " As charges were not filed until December 12, 1949, it is
also clear that the April 1 date noted in the complaint as marking the onset of the al-
leged refusal to bargain falls within a period more than 6 months prior to the filing
and service of the charge The Respondent therefore asserts that the complaint is void
in its entirety in view of the limitations of Section 10 (b). The complaint, however,
alleges an unfair labor practice continuous in type and which existed on and after a date
6 months prior to the filing and service of the charge The Board does not consider,
accordingly, that the fact that the complaint also encompasses a time prior to that date
vitiates the entire complaint or a finding of an unfair labor practice on and after the
period specified by Section 10 (b).
The Board also does not consider the fact that the complaint enlarged upon the allega-
tions of the charge, and the fact that the Trial Examiner received and considered evi-
dence pertaining to the expanded allegations to have been erroneous It is well established
that the Board may base an unfair labor practice finding upon any conduct which occurred
within the 6-month period prior to the filing of a charge even though the charge itself
does not specify such conduct as a violation of the Act, if the complaint issuing thereupon
alleges the conduct to be an unfair labor practice Nor was the Trial Examiner incorrect
in considering the unilateral wage increase of September 1, 1950, as evidence on the
question of Respondent's refusal to bargain even though such conduct took place after the
issuance of the complaint in this proceeding. The Respondent did not claim surprise
by the introduction of evidence on this issue Nor did Respondent show that it was
prejudiced thereby The actions of the Respondent on that date were well within the
allegations of the complaint, and, as the duty to bargain in good faith is a continuing one,
the issuance of the complaint did not serve to relieve the Respondent of that duty or of
the restrictions of the Act. Finally, the Board finds no merit in the contention that no
evidence pertaining to events occurring more than 6 months before the filing and the
service of the charge should be considered. The Board has consistently held that such
evidence may be introduced and considered as ithas been here, for background purposes,
to explain and clarify events occurring within the 6-month period itself. (Emphasis
in the original. Footnotes have been omitted.)
In view of the foregoing, the motions of the Respondent, as renewed, for the striking of
certain allegations and for the dismissal of the complaint are denied.
At the conclusion of the hearing, the undersigned granted a motion by the General Counsel
to conform the pleadings to the proof as to dates, spelling, and minor variances and advised
the parties that they might argue before and file briefs or proposed findings of fact and
conclusions of law, or both, with the Trial Examiner Counsel for the Respondent and the
General Counsel participated in oral argument. Thereafter, the Respondent filed a brief with
the undersigned
Upon the entire record in the case and from his observation of the witnesses, the under-
signed makes the following:
IN. L. R. B. v. Pennwoven, Inc , 194 F. 2d 521 (C. A 3).
2 American Federation of Grain Millers, AFL v. N L R B., 197 F. 2d 451 (C. A. 5).
3 American Federation of Grain Millers, AFL v. N. L. R. B., supra
4Sanson Hosiery Mills, Inc , 92 NLRB 1102, enfd. 195 F 2d 350 (C A. 5).
5Gagnon Plating and Manufacturing Company, 97 NLRB 104, 106
INTERNATIONAL FURNITURE COMPANY 133
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
International Furniture Company, an Illinois corporation with plants and places of business
located in the States of Indiana and Georgia, is engaged in the manufacture of unassembled
furniture. The instant proceeding is concerned with its operations at Cornelia, Georgia
In the course and conduct of its business at Cornelia, Georgia, during the 12-month period
ending May 1, 1952, the Respondent purchased raw materials, equipment, and supplies
valued in excess of $100,000, of which more than 20 percent in value was purchased outside
the State of Georgia and shipped in interstate commerce to its plant in Cornelia. During the
same period, the Respondent sold finished products valued in excess of $100,000, of which
more than 90 percent in value was sold and shipped to customers outside the State of Georgia.
It is found that the Respondent is engaged in commerce within the meaning of the Act
IL THE ORGANIZATION INVOLVED
Upholsterers' International Union of North America, Local 188, AFL, is a labor organiza-
tion admitting employees of the Respondent to membership
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain
1 The appropriate unit
The complaint alleged, the Respondent's answer admitted, and it is found that all production
and maintenance employees, truckdrivers, and firemen at the Respondent's Cornelia plant,
excluding office and clerical employees, guards, and supervisory employees within the mean-
ing of the Act, constitute a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act
2 The majority status of the Union
On December 6, 1950, in an election by secret ballot conducted under the direction and
supervision of the Regional Director for the Tenth Region, a majority of the employees in
the foregoing unit designated and selected the Union as their collective-bargaining repre-
sentative. On December 14, 1950, the Regional Director issued a certification of repre-
sentatives, certifying that the Union was the statutory representative of all employees in
the appropriate unit. The undersigned finds that on December 6, 1950, and at all times
material thereafter, the Union was the majority representative of the employees in the
appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (a)
of the Act 6
3. The sequence of events?
On January 3 and 4, 1951, representatives of the Respondent and the Union met in the first
of a series of collective-bargaining conferences held on 24 different days between January 3
and September 6, 1951. For the purpose of this report, it is unnecessary to detail the entire
discussion shown by the record to have occurred at the numerous conferences; instead, a
general summary of the events pertinent to the issues will be set forth.
On January 3, John H. Malone, organizer for the Union, and a committee of employ-
ees submitted to Plant Superintendent Lester Benfield and Harry Shulman, counsel for
the Respondent, a proposed contract for their consideration. The noneconomic pro-
posals of the contract, that is, those which did not involve monetary considerations,
6 The issue raised by the Respondent in March 1952 as to the Union's majority status is
hereinafter discussed in the text.
7 The findings in this section are based upon the credible and uncontroverted testimony of
witnesses for the General Counsel, except as otherwise indicated
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were first discussed and it appears that the Respondent had no objection to some of the
proposals, aside from language, although it declined the Union's request for a bulletin board
in the plant for posting of notices However, the Respondent refused to agree to any of the
economic proposals in the Union's contract, such as those dealing with wage increase, 7
paid holidays, overtime pay, insurance program, piece rates, and improved vacation policy,
for the reason that its Cornelia plant had operated at a loss from the time of its inception
and that the Respondent could not increarse its production costs In addition, the Respondent
asserted that a pay raise given employees in October 1950 was intended to cover not only the
increase in cost of living since the last change in the wage scales but also further increases
in cost of living to be anticipated in the future The outcome of these first conferences was
that Shulman promised to consult with the Respondent's president in Chicago and ascertain
whether the Respondent could grant any of the Union's economic proposals and to mail to the
union counterproposals of the Respondent on the noneconomic issues.
About January 18, 1951, Malone telephoned Shulman, who stated that he had conferred with
the Respondent's president, that "there was no financial concession in the offing at this time,
and ... that the noneconomic counterproposals were then on their way" to Malone. The latter
received these proposals about January 25. Among other things, the Respondent's counter-
proposals contained provisions defining the rights of management, forbidding strikes by the
Union, granting a checkoff of union dues and initiation fees, establishing a policy of seniority
governing layoffs and recalls, permitting union members to obtain leave of absence to engage
in union business, and setting up a grievance and arbitration procedure.
Using the Union's original proposed contract and the Respondent's counterproposals, the
parties continued negotiations. They reached tentative agreement on certain noneconomic
matters but the Respondent remained adamant in its refusal to grant any of the Union's
requests relating to economic issues, stating that the Respondent could not afford to increase
its production costs and giving other reasons as well.
On a Friday in April 1951, Plant Superintendent Benfield came to employee Furman Hol-
brook at the latter's work station and said "They wished some of the boys would get up a
petition and get the Union out, said it was no good."
Following discussion in April and May as to the possibility of agreeing to a contract for
a short term, the Respondent, on May 24, 1951, submitted to Organizer Malone a complete
counterproposal in contractual form which contained provisions for mutual cooperation and
recognition, checkoff of union dues and initiation fees, definition of the working day and
overtime, vacation policy, payday, seniority policy, leave of absence for union members to
engage in union business, right of union representatives to have access to the plant during
business hours to adjust grievances and disputes, establishment of a union-shop committee
and union-management committee, grievance procedure, arbitration machinery, continuation
of prevailing conditions, erection of a bulletin board for the Union's use in the plant, military
leave, and health, safety, and sanitation The proposal was for a term running from May 1
to October 31, 1951, and stated that it should "not become effective until signed by the
officers of the Employer and signed and countersigned by officers and representatives
of the Union as hereinafter set forth " The proposal concluded with indications for sig-
natures by the Respondent and the local union, and for countersignature by the International
Union, substantially in the form indicated on the Union's original proposed contract
Malone testified credibly that "after some discussion on it, when I was sure in my own
mind that this was the Company proposition up to then, and that that was as far as the
Company would go at that time when they convinced me they meant what they said, I
asked them to sign it, and the Company refused I had the complete counter proposal
in my hand, as I remember it, and I handed it back across the table to the representatives
of the Company, which was to the effect that 'if this is your counter proposal, sign it and
we'll take it,, or 'We'll take if you will sign it ' I don't remember which I put first I asked
the Company to sign it and indicated clearly that we would accept it, and the Company re-
fused."
In this regard, however, Herbert B. Kimzey, who was counsel for the Respondent and its
chief negotiator in conferences with the Union after March 2, 1951, gave the following
testimonial explanation on direct examination for his refusal to sign the Respondent's
counterproposal of May 24:
Q. [By Mr Smith] You have heard testimony presented in General Counsel's case
with reference to your declining to sign a contract prior to the Union signature Will
you explain for the record why you so declined?
INTERNATIONAL FURNITURE COMPANY 135
A. Yes, sir At that time the same Union was involved in negotiations with the in-
ternational Furniture Company at Madison, Georgia and also at Cornelia, Georgia 8
I requested the Union to furnish representatives for negotiations here with authority
to enter into a binding contract Mr Malone and Mrs Woodall both informed me that
they had no authority to make any binding contract on behalf of the Upholsterers' In-
ternational Union, that any such contract would have to be sent to Philadelphia, to the
home office, and approved and countersigned by the home office before any such contract
would be binding upon the Union
Q. Mr Kimzey, would you at that time have executed the contract referred to, had
it been ready for execution and binding on that date?
A. Yes, sir I told them that if they would get that contract countersigned by the
home office and returned to the plant here ready for signature by the Union and the
Company, so as to be a binding contract, that I would execute it on behalf of the Company
or cause Mr Benfield to do so I told them I would not sign such a contract and turn
it over to them with the Company's signature thereon for their acceptance or rejection.
On cross-examination, Kimzey further testified as follows:
. I would not sign it until it had been submitted and approved by [the International
Union], either in the form of a letter or a signature on it, but I wanted some assurance
that that was not a trap to get the Company's signature on a contract that would be used
against us, that we would sign it in good faith and send it to Philadelphia and let them
say No, it's not a standard contract, it's got to have FEPC, it's got to have this, that
and the other, therefore we refuse to sign it. It would come back, with the Company's
signature on it, to be used against us here, at Madison and other places And I wanted
to execute the contract with all parties simultaneously, and in three copies, so that the
contract would be binding upon the Company and the local Union, and the International
Union, all at one and the same time. But I did not want to give them a contract with my
signature on it that was not valid and binding upon the Union, but was binding upon the
Company if they decided.to accept it
Although on cross-examination Malone was unable to recall that Kimzey had requested
that the Union obtain the countersignature of the International Union to the contract prior to
its execution by the Respondent and although Malone's answers to questions in that line were
somewhat vague, if not evasive, his subsequent testimony on recross-examination, set forth
as follows, was in accord with that of Kimzey:
Q [By Mr Kimzey] You wanted us to sign first, that's correct , isn't it?
A. Once you had agreed to sign, we didn't care who did it first
Q. You wanted the contract signed before you sent it to Philadelphia for their ac-
ceptance or rejection , didn't you 9
A. Yes, sir
Q. And you refused to do it, didn't you 9
A. Yes, sir, but that only came up after you refused to sign the last counter proposal
on May 24th
Q. Yes But we never agreed to sign a contract for Philadelphia for their acceptance
or rejection , did we?
A. You made no objection up until the , as I recall it, the May 24th meeting , when you
refused on the basis that the contractual relationship between us would have to be
countersigned at Philadelphia From January 3 to May 24, I never heard anything that
I can recall where the Company ever refused to sign anything unless it was signed at
Philadelphia first and then brought back . It was only after you refused to sign your own
contract on May 24th As an afterthought you brought up changing your position about
signing your own contract.
e The Respondent operated another plant in Georgia at Madison, which is about 70 miles
from Cornelia. During the negotiations for the Respondent's employees at Cornelia, the
Union suggested that the Respondent agree to the reinstatement of an employee at Madison
and to the conduct of another election there. In this regard, see International Furniture
Company, 98 NLRB 674, enfd. 199 F 2d 648 (C. A. 5).
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of the foregoing , as well as the undersigned ' s observation of the witnesses, the
undersigned credits Kimzey's testimony set forth above
The next collective-bargaining conference was held on July 11, 1951.9 D. H. Woodall,
director of region 15 of the.Union, was the principal negotiator for the Union at this and
subsequent conferences At the outset of the meeting , Kimzey gave Woodall the Respondent's
counterproposal submitted to Malone on May 24 When Woodall remarked that the counter-
proposal contained no references to disputed economic issues and to other proposals origi-
nally urged by the Union, Kimzey replied, according to Woodall, "Now, the Union requested
us to draw up a counter proposal that we'd-agree to, and this contract or counter proposal
includes eighty per cent of the issues requested by the Union, and the things you are raising,
Mr. Malone agreed to leave them out Mr Malone wanted us to present a contract that they'd
sign " Woodall stated, "I didn ' t know that these agreements had been made, but on the basis
of [Malone ' s] agreement , certainly I'm not going to take a contradictory attitude. This is
your contract If you will sign it , we will sign it , subject to the approval of the membership
and our International Union "
As set forth above, Kimzey replied that if the Union "would get that contract countersigned
by the home office and returned to the plant here ready for signature by the Union and the
Company , so as to be a binding contract , that I would execute it on behalf of the Company
or cause Mr Benfield to do so . I told them I would not sign such a contract and turn it over
to them with the Company ' s signature thereon for their acceptance or rejection ." 10 However,
it appears that the Union never submitted the Respondent ' s proposals to its membership for
approval or to the International Union for countersignature in accordance with Kimzey's
requests made on May 24 and July 11, 1951.
Woodall' s uncontradicted and credible testimony reveals that , in addition , Kimzey said,
.. you have raised a lot of issues here Now we are going to raise some. We ' re going
to give you some counter proposals ." The remainder of the conference on July 11, and the
subsequent meetings on July 20 and 31 , were devoted to a discussion of each of the provi-
sions contained in the Respondent ' s counterproposal originally submitted on May 24 . Various
objections of the Union to the proposals were discussed and counterproposals were submitted
to certain provisions by both the Respondent and the Union. For example, the Respondent
agreed to reduce the probationary period for new employees from 90 days, as provided in
its counterproposal of May 24, to 60 days , and agreement to changes in the seniority provi-
sions of the May 24 counterproposal was also made. Economic issues urged by the Union
throughout the negotiations were again discussed but were declined by the Respondent. By
the conclusion of the meeting on July 31, 1951 , the Respondent and the Union were in agree-
ment upon all provisions of the Respondent ' s counterproposal of May 24 , as amended during
the conferences , with the exception of the clauses governing arbitration machinery and the
term of the contract. In respect to the latter , the Union urged a contract for a 1 -year term
whereas the Respondent desired that the contract's term expire on December 15, 1951. The
session ended with the union representatives stating that " we'd talk it over , think it over
that night and would probably agree to " the Respondent ' s proposals regarding arbitration
machinery and term of the contract
At the outset of the meeting the next morning on August 1 , Kimzey said , according to
Woodall ' s credible and uncontradicted testimony , " In all fairness to the Commissioner,
the Union and all concerned , we are going to have to withdraw some of the things we agreed
to yesterday , for instance , the probationary period we had agreed to, for sixty days, we
have talked it over with the foremen , and we realize that it should be ninety days instead
9 A meeting was scheduled for June 7, 1951, and although representatives of the Respondent
and a commissioner of conciliation from the Federal Mediation and Conciliation Service
were present, representatives of the Union failed to appear, due to inadvertance in notifica-
tion of the meeting.
10 Woodall specifically denied that Kimzey made this statement to him. He admitted that
he did not have authority to execute a contract which would be valid and binding on the Union
without its being approved and countersigned by the international Union, because "under the
Taft-Hartley Law, our legal department had notified all of their men that if a contract was
agreed to and signed with an illegal provision in it, that this one illegal provision would
invalidate the whole contract. Therefore we were requested to send our contracts in to the
International office and have them examined to see if they did include a clause that would
be in violation of the Taft-Hartley Act, and that is why that provision was made." From
the undersigned's observation of the witnesses, and for the reasons previously stated, the
undersigned is convinced that Kimzey made the statement quoted in the text His testimony
is accordingly credited and Woodall's denials are rejected.
INTERNATIONAL FURNITURE COMPAN i 137
of sixty days. Also , we're going to have to insist on a Management Rights clause and a No
Strike clause in the contract , which we don ' t have."
Following some discussion, Woodall asked, "Are you withdrawing the things you have
tentatively agreed to? What do you want? " Kimzey replied , " There has been so many
proposals and so many counter proposals until we are all mixed up , and I think the best
thing to do is for the Umon to prepare a complete new proposal along the lines of the things
that we have agreed to, and present it to the Company and we'll start from scratch " The
Union agreed to draft another proposed contract.
On August 23, 1951, it presented a new proposed contract to the Respondent . The following
proposals were the same as those tentatively agreed to by the parties on July 31 , as a result
of negotiation upon the basis of the Respondent ' s proposals of May 24. Probationary period
of 60 days , checkoff of union dues and initiation fees, payday, leave of absence , right of visi-
tation , union - shop committee , grievance procedure , union management committee , bulletin
board , and health , safety, and sanitary provisions . The Union ' s proposal with regard to
"mutual cooperation and recognition" was the same as that agreed to by the parties pre-
viously with the addition of another paragraph The seniority provisions previously agreed
to by the parties were incorporated in its new proposal with additional clarifying clauses.
The provision for the continuance of prevailing conditions of employment was the same as
that proposed by the Respondent on May 24 except for the omission of a paragraph.
In compliance with the Respondent ' s request for proposals for "a Management Rights
clause and a No Strike clause ," the Union ' s suggested contract contained such clauses, as
well as an article entitled " Right of Union ." In regard to the items as to which the parties
were in disagreement on July 31 --arbitration procedure and termination of the contract--the
Union inserted the provisions from its original proposal relating thereto.
The chief distinction between the terms of the Union ' s proposal submitted on August 23
and those tentatively agreed to by the parties on July 31 related chiefly to economic issues,
such as hours and overtime , vacations , rates of pay, social security, and piece rates. The
Union's proposals respecting vacations , social security or insurance program, and limita-
tion of the Union's right to strike were copied from a contract between another local of the
Union and the Respondent , covering the latter ' s operations at Rushville , Indiana In addition
the Union included new proposals covering company rules, rest periods for employees, and
limitation of authorized agents of the contracting parties
Meetings on August 23, September 5, and September 6, 1951 , were devoted to a discussion
of the last contract proposal of the Union and various counterproposals of the Respondent.
Although by July 31 the parties had tentatively agreed to a probationary period of 60 days
for new employees and this was set forth in the Union ' s counterproposal of August 23, the
Respondent on the latter date insisted that the period should be 90 days but on September 5
consented to a period of 60 days As mentioned above, tentative agreement had been reached
upon a grievance procedure by July 31 , but on August 23 the Respondent withdrew from such
agreement and submitted a procedure which was considerably at variance with that previously
agreed to and which greatly prolonged the period for processing grievances , restricted the
right of the grievance committee to confer with a representative of the Employer in the
third step of the procedure , and limited the activities of shop stewards in handling griev-
ances upon the premises of the Employer The Respondent also took exception to a provision
contained in the article establishing a union - shop committee , previously agreed to tenta-
tively , providing that union members would be paid for any loss of time not to exceed 10
minutes incurred in the settling of grievances or in conference with the Respondent. The
Respondent rejected the Union ' s economic proposals for such items as vacations , insurance,
wage rates , piece rates , etc , and stated it would offer a counterproposal on vacations, being
the same contained in its proposal of May 24 , and would submit a proposal for hours and
overtime and its current wage scales and job classifications The Respondent rejected the
suggested "No Strike," "Arbitration Machinery," and "Limitation of Authorized Agents"
clauses The Respondent produced a counteroffer to the provision limiting the right of the
Union to strike but it was unacceptable to the Union. The Respondent insisted that the con-
tract should terminate on December 15, 1951. As to the other noneconomic items of the
Union's proposal, the parties had reached substantial accord by September 5, and had agreed
to omit the "Union Rights" clause.
On September 5, prior to meeting with the Union. Kimzey told Woodall in a telephone
conversation, "We'll meet but nothing will be accomplished." At the conclusion of the con-
ference that day, Woodall "reminded him of it in the afternoon or evening when the meeting
closed , that if what he said was true , actually we were farther apart than we were in the first
meeting that I remember being in on "
In respect to the final conference on September 6, 1951 , Woodall gave the following cred-
ible and uncontroverted testimony:
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
... We had a very hot debate all that day over piece rates, arbitration, grievances.
termination of the contract, wages, vacations and insurance. This meeting was spent
mostly arguing about economic issues, termination date. We made no progress that day,
and at the close or about the close of the meeting I reminded Mr. Kimzey that this meet-
ing had resulted in about what it did the day before. And I told Miss Stewart that Mr.
Kimzey told me over the phone that nothing would be accomplished on the 5th, and she
said, "Mr. Kimzey, you did tell me that over the phone too, didn't you? " Mr. Kimzey
said, "I did."
Now, at the close of this meeting I asked them straight-forward questions, in which I
put the question down and copied the answer. One of the things that we had argued about
pretty hot that day was the termination date. I accused the Company of bargaining in bad
faith, and their only reason for setting December 15 as the only date they would accept
any contract was simply because our annual certification was December 14th or 15th,
and I asked Mr. Kimzey if that wasn't a fact. Mr. Kimzey said, "It could be." He said,
"It is the Company position that it will not agree to a contract with a termination date
subsequent to December 15, 1951." And I asked, "If we agree to all other provisions of
the contract this week, would the company's position on termination be the same on
termination? " Mr. Kimzey said, "The Company's position would be the same." I asked
the Company in connection with the Union insurance program, which we had discussed
that day along with other economic matters, "Will the Company consider paying the full
premium for insurance that you now have in effect? " Mr. Kimzey answered, "The
Company will not." I asked, "Will the Company pay for any paid holidays not worked? "
Mr. Kimzey answered, "The Company will not pay for any holidays not worked." And I
asked, "Will the Company put vacations on the same basis as is used in the Rushville
contract? " Mr. Kimzey said, "The Corppany will not compute vacation pay on the same
basis as applied in the Rushville contract." I asked, "Will the Company make any con-
cessions on cost items? " Mr. Kimzey said, "The Company will not." I asked, "Will the
Company agree to any proposition which could be used to make a final disposition of a
dispute arising out of impairement of wages, arising out of the application or adjustment
of piece rates? " Mr. Kimzey said, "The Company will not delegate that authority to the
Union or any other party outside the Company." With that, the meeting adjourned.
About September 20, 1951, Woodall telephoned Plant Superintendent Benfield and inquired
whether a schedule of the current wage rates and job classifications of employees, which the
Respondent had promised to furnish in the last bargaining conferences, had been compiled.
Benfield replied that the information had been tabulated but refused to give Woodall a copy
because "you never presented your proposals to us until we went into a meeting, and that
would be putting the Company at a disadvantage, to offer you something in the way of a pro-
posal prior to the time we meet. I am not going to let you." Woodall then telephoned Kimzey
and asked the latter to intercede with Benfield so that Woodall might obtain a copy of the data.
Kimzey refused to do so but said that he had a copy of the material and read it to Woodall.
When the latter requested a copy. Kimzey declined on the ground that he had only one copy
which he desired to retain.
On October 24, 1951, the Union filed its original charge in, the instant proceeding, alleging
that the Respondent had engaged in violations of Section 8 (a) (1) and (5) of the Act. On January
9, 1952,Woodall conferred with Superintendent Benfield in regard to grievances arising out of
the layoff of two employees.
On January 11, 1952, without notification to the Union, the Respondent unilaterally granted
to its employees a program of paid holidays and announced that they would receive retroactive
pay for Thanksgiving and Christmas 1951 and New Year's Day 1952, and in the future would be
given 5 holidays with pay each year. Prior thereto the Respondent had not operated its plant
on 4 holidays each year but the employees were not given any pay for these holidays. On
February 5, 1952, the Union filed its first amended charges in the instant matter.
In March or April 1952, the Respondent, again without notification to the Union, announced
to its employees that they would receive a wage increase of 3 or 4 cents an hour,
retroactive in effect to January 1, 1952.
By letter dated March 21, 1952, and sent to Superintendent Benfield, Woodall requested a
meeting with the Respondent on March 26, 1952, "for the purpose of resuming contract nego-
tiations on behalf of your employees who are within the bargaining unit."
In a letter dated March 21, 1952, Benfield replied as follows:
It will be perfectly satisfactory for you to meet with us at one thirty (1:30) Wednesday
March 26.
INTERNATIONAL FURNITURE COMPANY 139
I talked to Herbert Kimzey about same and he will be present . It will be left up to you
to contact Miss Stewart. l' We will be looking forward to seeing you at that time.
However, when Woodall arrived at Cornelia , Georgia , the morning of March 26, 1952,
Kimzey gave him the following letter, dated March 25 , 1952, and signed by Hoke Smith, who
was also counsel for the Respondent:
This will acknowledge your letter of recent date addressed to Mr. Lester Benfield at
the International Furniture Company requesting a meeting on March 26th to resume con-
tract negotiations covering the Cornelia plant of International Furniture Company.
Since the original certification of the Upholsterers International Union on December
14, 1950 , a number of changes , which are outlined below, have taken place which cause
us to have grave doubts as to whether you truly represent a majority of our employees.
These changes are:
(1) In the aforementioned election , the union received a majority of six votes.
(2) Since that time , in excess of six people have been laid off due to lack of work or
discontinuance of position.
(3) Since that time, a number of employees have quit work to accept employment
elsewhere.
(4) Comparatively recently some twenty new employees have been added to the pay-
roll.
It is virtually inconceivable to us that these changes would not reflect a substantial
change in the representative status of the Upholsterers International Union at the Cornelia
plant. We , therefore , request that you join with us in a consent election , to be held at a
convenient date in the near future , at which our employees may freely express their choice
with reference to a bargaining agent. We likewise believe it would be unfair to our em-
ployees to negotiate a contract with you, if you did not represent a majority , and suggest
that all negotiations be suspended pending the outcome of the consent election.
Would you please let us have your early advice on this matter , as we would like to put
the necessary machinery into operation with the National Labor Relations Board.
Under date of April 1 , 1952 , counsel for the Union replied to the above letter of the Respond-
ent as follows:
Mr. D. H. Woodall, Regional Director , Upholsterers International Union , has referred
to us for response your letter to him of March 25, 1952, in reference to the International
Furniture Company matter.
As you probably know, this Union was certified by the National Labor Relations Board
as the duly designated and selected collective bargaining representative of the employees
at the Cornelia plant of the Company . Subsequent to certification , the Company failed to
bargain in the manner provided by law, and otherwise committed unfair labor practices.
Charges for violations of Section 8 (a) (1). (3), and (5) were duly filed against the Company.
These charges are now under investigation . The National Labor Relations Board cur-
rently recognizes the Union as the certified agent of the employees involved.
Under the circumstances , the representative capacity of the Union is not subject to
challenge.
Prior to receiving your letter , Mr. Woodall had received a letter from Mr. Lester
Benfield agreeing to resume contract negotiations on March 26, 1952 . This letter was
responsive to Mr. Woodall 's letter to Mr. Benfield of March 21, 1952. Mr . Kimzey ad-
vised Mr. Woodall when he delivered your letter of March 25, 1952, on the morning of
March 26, that your letter superseded the Company 's agreement to meet on that date.
We assume , therefore , that the Company 's present position is that it refuses to bargain
with the certified agent.
If we may cooperate in an effort to bring the parties together in order to conclude a
proper collective bargaining agreement , please call on us.
iiSince March 29, 1951, Eloise Stewart Tharpe , a commissioner of conciliation of the
Federal Mediation and Conciliation Service, had participated in most of the collective-
bargaining conferences
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the ensuing conversation on March 26, 1952, Kimzey expressed doubt as to the Union's
majority status and told Woodall that the Union "would be five years getting a contract at the
Madison and Cornelia plants."
B. Conclusions
Upon the entire record the undersigned is convinced and finds that the Respondent's con-
duct in its negotiations with the Union failed to fulfill the standards of good-faith bargaining,
often defined by the Board and set forth as follows not long ago:
The fact that the Respondent met willingly and conferred at length with the Union does
not necessarily establish that it had been bargaining in good faith. Mere participation in
meetings with the Union and protestations of willingness to bargain do not alone fulfill
the requirements of Section 8 (a) (5) and 8 (d) of the Act, for these are only the surface
indicia of bargaining . Bargaining in good faith is a duty on both sides to enter into dis-
cussions with an open and fair mind and a sincere purpose to find a basis for agreement
touching wages and hours and conditions of labor. In applying this definition of good faith
bargaining to any situation, the Board examines the Respondent's conduct as a whole for
a clear indication as to whether the latter has refused to bargain in good faith, and the
Board usually does not rely upon any one factor as conclusive evidence that the Respond-
ent did not genuinely try to reach an agreement. 12
The foregoing observations are particularly pertinent to the circumstances of the instant
case. Here, the Respondent met in many collective-bargaining sessions with the Union on
some 24 different days, met the Union's proposals with counterproposals, discussed any sug-
gestion offered by the Union, and gave reasons for its refusal to grant the Union's proposals.
Yet, examining the entire course of the conferences, it is apparent that the Respondent was
bargaining with the Union with the ultimate purpose, not of concluding the negotiations in good
faith in a collective-bargaining contract, but of pursuing the ritual of collective bargaining
until the end of the Union's certification year, at which time the Respondent could challenge
the continuation of the certification on the theory that the Union was no longer the majority
representative of the Respondent's employees. In other words, the Respondent in its dealings
with the Union looked forward, not to the execution of a contract as a result of the negotia-
tions, but to the end of the Union's certification year without the consummation of an agree-
ment.
Thus, on July 11, 1951, when Woodall, the Union's representative, indicated that the Union
would accept the Respondent's counterproposal, first offered on May 24, Kimzey immediately
took steps to prolong the negotiations by saying, "You have raised a lot of issues here. Now,
we are going to raise some. We're going to give you some counter proposals." 13 Accordingly,
on July 11, 20, and 31, the parties discussed each of the provisions in the Respondent's
counterproposal and by the conclusion of the meeting on July 31 they had reached agreement
on all its provisions except those governing arbitration machinery and the term of the con-
tract. The Union stated that it would consider the Respondent's position on the two disputed
items over night, would probably agree to the Respondent's terms, and would give the Re-
spondent its decision the next morning. However, at the outset of the meeting on August 1,
with the parties so nearly in accord on the terms of an agreement, the Respondent advised
12 Southern Saddlery Company, 90 NLRB 1205, 1206.
i3 Since the Union had stated throughout the negotiations that any agreement reached
between it and the Respondent was subject to ratification by the local membership and by
the International Union, it is found, although the matter is not completely free from doubt,
that the position taken by Kimzey when he presented the Respondent's counterproposal to
the Union on May 24 and July 11, 1951, that he would sign it only after the ratification
process had been completed, was not unreasonable and did not adversely reflect upon the
bona fides of the Respondent. However, the undersigned cannot agree with the Respondent's
contention that the Union failed to bargain in good faith in view of the fact that its negotiators
were not authorized to make a final and binding contract but were required to submit the
agreement concluded during negotiations to final ratification process. Such a limitation
on the authority of negotiating agents is not unlawful in the absence of evidence that such
reservation of ratification was intended or was used to foreclose achievement of agreement
See Amalgamated Meat Cutters and Butcher Workmen of North America (A.F.L ), 81 NLRB
1052, 1062; W. W. Cross & Company, Inc., 77 NLRB 1162, 1166.
INTERNATIONAL FURNITURE COMPANY 141
the Union that the Respondent was withdrawing from agreements previously made to various
provisions. In respect to the probationary period for new employees, as to which the Respond-
ent had taken a vacillating position throughout the negotiations, the Respondent returned to its
original contention that it should be a 90 -day instead of the 60-day period formerly agreed to
and resurrected the issues of "management rights " and "no-strike " provisions , both of
which it had earlier agreed to drop. In addition , by insisting at this meeting that the Union
prepare a complete new proposal and "we 'll start from scratch" in the negotiations , the Re-
spondent "broadened the areas of uncertainty and disagreement " to such an extent that one
must conclude that the Respondent 's "promotion of such confusion and uncertainty in negotia-
tions was incompatible with a good faith endeavor to each agreement." 14
However, the Union submitted a newproposal which as to noneconomic matters incorporated
items earlier agreed to by the parties . In the ensuing negotiations in August and September,
the Respondent continued to demonstrate its equivocal bargaining technique by withdrawing from
agreements previously made . As mentioned above, it insisted upon a 90-day instead of a 60-
day probationary period for new employees, but ultimately settled upon a 60-day period. In
addition , it revoked the agreement previously made to grievance procedure and submitted a
provision restricting the rights of the grievance committee to confer with the Respondent and
questionable in its efficacy . Furthermore , the Respondent withdrew from its agreement pre-
viously made to pay union members for any loss of time, not to exceed 10 minutes, incurred
in the settlement of grievances or in conference with the Respondent . Such shifting of positions
and introduction of stringent demands by the Respondent after more than 6 months of negotia-
tions are indicative of its bad faith in negotiating with the Union. >s
The Respondent 's insistence that the term of the contract should expire on December 15,
1951, coincidental with the anniversary of the Union 's certification as an additional indication
that the Respondent was not bargaining in good faith with the Union, inasmuch as one can infer
from its subsequent challenge of the Union's majority status, that its purpose in seeking to
limit the contract term to the certification year was an attempt to restrict to a minimum the
period to which the Union was entitled to recognition as the statutory representative of the
Respondent 's employees.16
Further indication of the Respondent 's bad faith in negotiating with the Union was evidenced
by Superintendent Benfield's statement to employee Holbrook in April 1951 that Benfield
"wished some of the boys would get up a petition and get the Union out, said it was no good,"
and by Kimzey's statement to Woodall in September 1951, that the Respondent would confer
with the Union on September 5, 1951, "but nothing will be accomplished." Such statements
are the antithesis of a good-faith approach to collective bargaining.
Finally, the Respondent's unilateral grant to employees, without consultation with or notifi-
cation to the Union, of paid holidays on January 11, 1952, and of a wage increase in March or
April 1952--both of which items the Union had unsuccessfully sought throughout the negotia-
tions--constituted not only positive indicia of the Respondent's bad-faith attitude in its entire
course of bargaining with the Union but also per se violations of Section 8 (a) (5) and (1). It is
true that the announcement of paid holidays was made on January 11, 1952, shortly after the
first anniversary of the Union's certification. However, it is clear that the Union had not
abandoned its claim to represent the employees, inasmuch as only 2 days previously, on
January 9, it had participated in a conference with Superintendent Benfield in respect to
grievances of 2 laid-off employees and had filed, in October 1951, charges that the Respondent
had refused to bargain with the Union in violation of the Act. Furthermore, the Respondent at
that time had not evidenced any claim that the Union's majority had been dissipated and there
is no evidence that such had occurred. Moreover, the grant of paid holidays was made retro-
active in effect into the certification year by giving employees pay for Thanksgiving 1951.
It is not clear whether the wage increases promulgated unilaterally by the Respondent in
March or April 1952 werepriororsubsequentto its letter of March 26, 1952, set forth above,
wherein it voiced doubt that the Union represented a majority of the employees because of the
change in the complement of employees since the date of the election. In any event, it is clear
that the Respondent's raising of this issue does not preclude the finding that the unilateral
wage increase and grant of holiday pay were per se violative of the Act, inasmuch as the cir-
cumstances of the case establish that the Respondent did not question the Union's majority
MEdward Shannon et al., 99 NLRB 430.
15 Crow- Burlingame Company, 94 NLRB 997; Atlanta Broadcasting Company, 90 NLRB
808; Franklin Hosiery,Mills, Inc., 83 NLRB 276; Tower Hosiery Mills, Inc., 81 NLRB 658
16 CL Stanislaus Implement and Hardware Company, Ltd , 101 NLRB 394; L G. Everist,
Inc., 103 NLRB 308.
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
status in good faith. In Celanese Corporation of America, 17 the Board reiterated the principles
governing the conclusiveness to be accorded a Union's certification and the circumstances
under which it might be challenged after 1 year's duration, as follows:
It is appropriate, at the outset, to set forth the legal principles controlling in situations
of this type, and particularly to indicate the relationship between the existence of a Board
certificate and the right of an employer to question a union's majority in good faith. In
the interest of industrial stability, this Board has long held that, absent unusual circum-
stances, the majority status of a certified union is presumed to continue for 1 year from
the date of certification. In practical effect this means two things: (1) That the fact of the
union's majority during the certification year is established by the certificate, without
more, and can be rebutted only by a showing of unusual circumstances; and (2) that during
the certification year an employer cannot, absent unusual circumstances, lawfully predi-
cate a refusal to bargain upon a doubt as to the union's majority, even though that doubt
is raised in good faith. However, after the first year of the certificate has elapsed, though
the certificate still creates a presumption as to the fact of majority status by the union,
the presumption is at that point rebuttable even in the absence of unusual circumstances.
Competent evidence may be introduced to demonstate that, in fact, the union did not repre-
sent a majority of the employees at the time of the alleged refusal to bargain. A direct
corollary of this proposition is that after the certificate is a year old, as in cases where
there is no certificate, the employer can, without violating the Act, refuse to bargain with
a union on the ground that it doubts the union's majority, provided that the doubt is in
good faith.
s
By its very nature, the issue of whether an employer has questioned a union's majority
in good faith cannot be resolved by resort to any simple formula. It can only be answered
in the light of the totality of all the circumstances involved in a particular case. But
among such circumstances, two factors would seem to be essential prerequisites to any
finding that the employer raised the majority issue in good faith in cases in which a union
had been certified. There must, first of all, have been some reasonable grounds for be-
lieving that the union had lost its majority status since its certification. And, secondly,
the majority issue must not have been raised by the employer in a context of illegal anti-
union activities, or other conduct by the employer aimed at causing disaffection from the
union or indicating that in raising the majority issue the employer was merely seeking to
gain time in which to undermine the union. (Emphasis in original. Marginal references
have been omitted.)
In view of the bad faith demonstrated by the Respondent in its negotiations with the Union
during the certification year and its unilateral invocation of holiday pay, all prior to its dis-
claimer of the Union's majority status, it is found that the Respondent's questioning of the
Union's majority in the letter of March 25 "cannot be regarded as having been done in good
faith, and, in any event, has no bearing on the Respondent's earlier conduct." 18 Moreover, the
record fails to establish that the Union's majority was dissipated as claimed by the Respondent
in its letter of March 25, and the undersigned does not believe that the circumstances relied
on by the Respondent in its letter of March 25 were sufficient to rebut the presumption as to
the fact of the continuance of the Union's majority status created by its certification as the
statutory representative of the Respondent's employees on December 14, 1950. 19 It accord-
ingly follows that the Respondent's refusal to bargain with the Union on March 26, 1952, was
violative of Section 8 (a) (5) of the Act, as were its unilateral grants of wage increases and
holiday pay.
The undersigned concludes and finds that the Respondent's entire course of conduct from the
inception of negotiations with the Union in January 1951, "at all times displayed a fixed in-
tention merely to preserve the appearance of bargaining, while avoiding any actual negotia-
tion in good faith or effort to reach a mutually satisfactory agreement.i20 However, as men-
tioned earlier, Section 10 (b) of the Act prevents any finding of an unfair labor practice
occurring more than 6 months prior to the filing and service of the charge upon the Respond-
17 95 NLRB 664, 672, 673
Is Gittlin Bag Company, 95 NLRB 1159, enfd. 196 F. 2d 158 (C. A. 4).
19 Toolcraft Corporation, 92 NLRB 655
20 Gagnon Plating and Manufacturing Company, 97 NLRB 104.
INTERNATIONAL FURNITURE COMPANY 143
ent on October 24, 1951. Accordingly, the undersigned finds only that on and after April 24,
1951, the Respondent failed and refused to bargain in good faith with the Union as the exclusive
representative of its employees in violation of Section 8 (a) (5) and (1) of the Act. It is further
found that the Respondent's unilateral grant of paid holidays on January 11, 1952, and a wage
increase in March or April 1952 , to employees in the bargaining unit constituted per se
violations of Section 8 (a) (5) and (1) of the Act, 21 as did the Respondent 's refusal to bargain
with the Union on March 26, 1952.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in connection with
the operations of the Respondent described in section I. above, have a close, intimate, and
substantial relation to trade , traffic, and commerce among the several States , and tend to
lead to labor disputes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
As it has been found that the Respondent has engaged in unfair labor practices , it will be
recommended that the Respondent cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act. Having found that the Respondent has
refused to bargain collectively with the Union as the exclusive representative of its employees
in the appropriate unit, the undersigned will recommend that the Respondent , upon request,
bargain collectively with the Union as such representative and, if any understanding is reached,
embody such understanding in a signed agreement . The undersigned has been administratively
informed that the Union , although in continuous compliance with Section 9 (f), (g), and (h) of
the Act during this proceeding from the filing of the charge until after the date of the hearing,
has since permitted its compliance to lapse. The recommendations will accordingly be condi-
tioned upon the Union 's renewal of compliance with the requirements of Section 9 (f), (g), and
(h) of the Act. 22
In addition , the undersigned will recommend that the Respondent cease and desist from
unilaterally granting wage increases , paid holidays, and other benefits to employees in the
appropriate unit without first consulting the Union and from in any other manner interfering
with-the efforts of the Union to bargain collectively with the Respondent.
Upon the basis of the above findings of fact and upon the entire record in the case, the
undersigned makes the following:
CONCLUSIONS OF LAW
1. Upholsterers' International Union of North America, Local 188, AFL, is a labor organi-
zation within the meaning of Section 2 (5) of the Act.
2. All production and maintenance employees, truckdrivers, and firemen of the Respondent's
Cornelia plant , excluding office and clerical employees , guards , and supervisory employees
within the meaning of the Act , constitute a unit appropriate for the purpose of collective bar-
gaining within the meaning of Section 9 (b) of the Act.
3. On December 6, 1950, Upholsterers' International Union of North America, Local 188,
AFL, was, at all times since has been, and now is, the representative of a majority of the
Respondent's employees in the appropriate unit described above for the purpose of collective
bargaining within the meaning of Section 9 (a) of the Act.
4. By refusing on April 24, 1951, and at all times thereafter, to bargain collectively with
Upholsterers' International Union of North America, Local 188, AFL, as the exclusive repre-
sentative of all their employees in the appropriate unit, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act.
5. By unilaterally granting to employees in the appropriate unit paid holidays on January
11, 1952, and wage increases in March or April 1952, the Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act.
6. By the foregoing unfair labor practices, the Respondent has interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and
21Masou R, Hughes, Inc., 86 NLRB 848; Crow-Burlingame Company, 94 NLRB 997; L L.
Mature Transport Company, 95 NLRB 311, enfd. 198 F 2d 735 (C. A. 5); De Soto Hardwood
Flooring Co , 96 NLRB 382; Reed Rc Prince Manufacturing Company, 96 NLRB 850; Gagnon
Plating and Manufacturing Company, 97 NLRB 104.
22 See Simplicity Pattern Company, Inc , 102 NLRB 1283, and cases cited therein.
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereby has engaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby
notify our employees that:
WE WILL bargain collectively , upon request , with Upholsterers ' International Union
of North America, Local 188, AFL, if and when said labor organization shall have com-
plied, within 30 days from the date of the aforesaid recommendations , with Section 9 (f),
(g), and (h) of the National Labor Relations Act, as the exclusive representative of the
employees in the bargaining unit described herein with respect to rates of pay , wages,
hours of employment , or other conditions of employment , and if any understanding is
reached, embody such understanding in a signed agreement . The bargaining unit is:
All production and maintenance employees , truckdrivers , and firemen of our Cor-
nelia plant , excluding office and clerical employees , guards , and supervisory em-
ployees within the meaning of the Act.
WE WILL NOT unilaterally grant paid holidays, wage increases , or other benefits
to the employees in the bargaining unit described above without first consulting Uphol-
sterers' International Union of North America, Local 188 , AFL, as the exclusive bar-
gaining representative.
WE WILL NOT in any other manner interfere with the efforts of Upholsterers ' Inter-
national Union of North America, Local 188 , AFL, to bargain collectively with us or re-
fuse to bargain collectively with said Union as the exclusive representative of the
employees in the bargaining unit set forth above.
INTERNATIONAL FURNITURE COMPANY,
Employer.
Dated ................ By...................... ......................................................................
(Representative ) (Title)
This notice must remain posted for sixty (60) days from the date hereof, and must not be
altered, defaced, or covered by any other material.
SOUTHERN CAR & MANUFACTURING COMPANY and LOUIS
C. TATE, Petitioner and SHOPMEN'S LOCAL UNION NO.
539 of the INTERNATIONAL ASSOCIATION OF BRIDGE,
STRUCTURAL AND ORNAMENTAL IRON WORKERS, AFL
SOUTHERN CAR & MANUFACTURING COMPANY, Petitioner
and SHOPMEN'S LOCAL UNION NO. 539 of the INTERNA-
TIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND
ORNAMENTAL IRON WORKERS, AFL. Cases Nos. 10-RD-
116 and 10-RM-115. July 14, 1953
DECISION AND ORDER
Pursuant to a stipulation for certification upon consent
election , an election was conducted among the employees in
106 NLRB No. 21.