Kayser-Roth Hosiery Co., Inc.

National Labor Relations Board - Board Decisions

Jun 25, 1969

176 N.L.R.B. 999 (N.L.R.B. 1969)

KAYSER-ROTH HOSIERY CO.
Kayser-Roth Hosiery Company, Inc. and Textile
Workers Union Of America, AFL-CIO. Case
10-CA-7393
June 25, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On February 25, 1969, Trial Examiner Thomas
A. Ricci issued his Decision 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 attached Trial. Examiner ' s Decision. He
also found that the Respondent had not engaged in
certain other unfair labor practices alleged in the
complaint' and recommended dismissal of these
allegations. Thereafter, the Respondent and the
Charging Party filed exceptions to the Trial
Examiner ' s Decision and supporting 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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The
Board has considered-the Trial Examiner's Decision,
1 the exceptions and briefs , and the entire record in
this case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that- the Respondent, Kayser-Roth
Hosiery Company, Dayton, Tennessee, its officers,
agents, successors , and assigns, shall take the action
set forth in the Trial Examiner 's Recommended
Order.
'The Respondent ' s Motion to Reopen the Hearing is hereby denied as
being yvithout merit.
'We deem it unnecessary to determine whether or not Respondent was
obligated to furnish the Union with the names and addresses of unit
employees , and, therefore , do not adopt the Trial Examiner's finding that
the Company was not obligated to furnish such information to the Union.
With respect to oircumstances which have been found to give rise to the
obligation to furnish such information . See Standard Oil Co. of California,
166 NLRB No. 45, enfd . 399 F .2d 639 (C.A. 9); Prudential Insurance Co.,
173 NLRB No. 117, enfd . 412 F.2d 77 (C.A. 2).
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
999
THOMAS A. Ricci, Trial Fxaminer: A hearing in the
above-entitled proceeding was held before the duly
designated Trial Examiner on October 22, 23, 24 and 25,
and on December 3 and 4, 1968, at Dayton, Tennessee, on
complaint of the General Counsel against Kayser-Roth
Hosiery Company, Inc., herein called the Respondent or
the Company. The charge was filed on June 12, 1968, and
the complaint issued on August 30. The issue of the case
is whether the Respondent refused to bargain with Textile
Workers Union of America, AFL-CIO, herein called the
Union, in violation of Section 8(a)(5) of the Act. Briefs
were filed after the close of the hearing by the General
Counsel and the Union.
Upon the entire record and from my observation of the
witnesses, I make the following:'
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Kayser-Roth Hosiery Company, Inc., a North Carolina
corporation, has an office and place of business in
Dayton, Tennessee, where it is engaged in the
manufacture and sale of hose and socks. During the past
calendar year, a representative period, it sold and shipped
finished products valued in excess of $50,000 to customers
'located outside the State of Tennessee. I find that the
Respondent is engaged in commerce within the meaning
of the Act, and that it will effectuate the policies of the
Act to exercise jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Textile Workers Union of America, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Question of the Case and Applicable Law
This is a refusal to bargain case . The self-organizational
activities by the employees reached a peak in 1964 when
they filed a representation petition with the Board for a
supervised election . The Respondent ' s reaction was violent
and unlawful; management representatives threatened
retaliation against employees in many ways , and even
discharged a number of them . The results of the election
were inconclusive because when dismissed workmen
attempted to vote management challenged their right to
do so . This question of their eligibility required
investigation , both as a supplemental aspect of the election
procedure , and as an unfair labor practice matter, in
which it was alleged that the Respondent had resorted to
the technique of discharge , in violation of Section 8(a)(3)
of the Act, for the very purpose of preventing the
establishment of collective bargaining by a majority in the
plant. After formal hearing the Board found that six of
the discharged employees had in fact been illegally
'After the close of the hearing Counsel for the Union filed a Motion to
Correct Transcript listing 25 items ; these all relate to clearly typographical
errors in the record of testimony . No opposition was received and the
motion is granted
176 NLRB No. 139
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dismissed because of their union activities . It also found,
in the same proceeding , that after the close of the initial
unfair labor practice hearing before a Trial Examiner, the
Company discharged two other employees for having
testified to help prove the unfair labor practices
committed , further violations of Section 8(aX3) and (4) of
the statute by the Respondent .' With these matters finally
resolved , it was clear that a majority of the plant
employees had voted to be represented by the Union, and
the Board issued the appropriate certificate. The Union
was originally certified as American Federation of
Hosiery Workers, AFL-CIO. Thereafter, on January 16,
1968, by formal decision of the Board ' s Regional Director
the certificate was amended by substituting the Textile
Workers Union of America, AFL-CIO, in place of the
Hosiery Workers.
There followed, between October 2, 1967 and April 25,
1968, 11 meetings between company representatives and
union spokesmen . A number of written, as well as oral,
proposals and counterproposals for a collective-bargaining
agreement were exchanged . There was much talk,
unending argument back and forth on the various clauses
each party demanded . Agreement was reached only on a
number of relatively insignificant matters; the basic
disagreements concerning the truly substantive issues
which separated the parties persisted to the last. On May
6, 1968 , the employees went on strike . The charge, filed
on June 12 , alleges essentially that the Respondent refused
to bargain in good faith, and the assertion is repeated in
the complaint , which also alleges that the strike was in
protest against the Company' s unfair labor practices in
failing to accord the Union the recognition which the
statute commands.
In defense the Company points to the fact it always
met with union agents when asked to do so , considered -
that is , gave thought - to every contract proposal
received , offered its own comprehensive draft of an
agreement, discussed every subject matter that arose
during the meetings and never failed to articulate its
reasons for disagreement . Had the Union consented to a
contract conforming with management 's view of how each
provision should read , the Respondent would have signed
an agreement . With this - the external format of normal
collective bargaining - it is argued that the General
Counsel has failed to prove a prima facie case of bad
faith , that the statute calls for no more on the part of an
employer . During the hearing the Respondent advanced
no legal argument and it did not file a brief. It is clear,
nevertheless , that the defense rests primarily upon the one
phrase in Section 8(d) of the Act which says the duty to
bargain "does not compel either party to agree to a
proposal or require the making of a concession."
Understanding of this case and correct appraisal of the
evidence, requires at the outset a plain statement of the
fundamental principles underlying the entire statute on
which the proceeding rests . A majority of the employees
decided , by vote in secret election , to bargain collectively
with their employer through the Union.3 The critical
allegation of the complaint is that the Respondent
"refused to bargain in good faith ," and thereby violated
Section 8(a)(5) of the Act. What this means, in terms of
the evidence , is that despite the appearance of regular
collective bargaining, despite repeated and superficially
persuasive explanations of conflicting positions taken, and
despite the absence of direct or overt proof of an intent to
deny the employees the statutory right to act in concert,
'Kayser-Rosh Hosiery Co ., Inc.. 166 NLRB No. 56
the Company spokesmen never really accepted the voice
of the employees , spoken through their chosen
representatives , as a factor to be considered in the
determination of working conditions . Decisions in cases of
this kind often speak of surface , or sham bargaining,
predetermination never to reach agreement , overall
contract proposals unacceptable to self respecting unions.
However , phrased , what is always involved at bottom is a
charge that the employer refuses to recognize the legal
principle that employees have a right to deal with him
collectively , as distinguished from individual hiring and
employment arrangements . Absent the existence of an
exclusive bargaining agent, the employer is under no duty
to consider the desires and opinions of any of its
employees, singly or in groups . He is free to determine all
conditions of employment unilaterally . Under the scheme
of the statute , unvaried since its original enactment in
1935, the employer must not only listen , when employees
choose to speak in concert , but also fairly give some
weight to their views, thus collectively expressed, in its
ultimate decisions of what conditions of employment are
to be . It is when employer officials talk at length with
employee representatives , but, contrary to the appearance
of things, do not admit their right fairly to be heard
collectively, that the seemingly proper bargaining is called
bad faith bargaining.
The law starts with Section 7 of the Act: "Employees
shall have the rit . . . to bargain collectively through
representatives o f their own choosing ." Section 8(d) then
specifies : ". . . to bargain collectively is the performance
of the mutual obligation of the employer and the
representative of the emplojees to meet at reasonable
times and confer in good faith with respect to wages,
hours, and other conditions of employment ...." It is
with this caveat of good faith as an essential element of
bargaining , that Section 8(aX5) then makes it illegal for
an employer "to refuse to bargain collectively with the
representatives of his employees ...."
Emphasis upon the reality that it is the employees who
act in concert in the collective bargaining process, is
necessary here because in this case , as in others of the
kind , the employer, resorting to a distracting use of
words, portrays the union as an entity separate and apart
from the employee group. If the union be viewed as only
remotely associated with the employees, as an
organization driven by interests different from, or, as
sometimes also asserted , adverse to those of the
employees, the test of the employer ' s bad faith, in the
statutory sense , becomes obscured .' For example, when a
union proposes a dues checkoff contract provision, it is
the employees who are asking , it is they who want the
'There is no issue concerning the appropriateness of the employee unit
for which collective bargaining was to take place, nor as to the Union's
statutory authority to speak on the employees' behalf. Accordingly I find
that all employees at the Respondent's Dayton , Tennessee operation,
excluding office clerical employees, methods and standards employees,
professional employees , guards and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act. I also find that on
September 11, 1%7, the Union was and at all times since has been the
representative of a majority of the employees in the unit so described for
the purposes of collective bargaining , and by virtue of Section 9(a) of the
Act, has been and is now the exclusive representative of all the employees
in said unit for the purposes of collective bargaining.
'Compare N.L.R.B . v. Wooster Division of Borg - Warner Corporation,
356 U .S. 342, where the employer was found to have violated the Act for
refusing to heed the voice of the union representatives as the voice of the
employees themselves.
KAYSER-ROTH HOSIERY CO. 1001
employer to forward dues as a convenience for the
workmen . Absent persuasive proof to the contrary in an y
special circumstances , it is error to view rejection of such
a demand as no more than a refusal to assist the union, as
though it were a stranger to the employer-employee
relationship . When Carlyle Isley, Director of Industrial
Relations , kept repeating to Adolph Benet, Division
Director of the Union, that he refused to forward dues on
written authorization of the employees because he did not
want to act as a collection agency for the Union' s contract
with its members, he was viewing the bargaining agent as
an interloper seeking to gain an advantage against the
employees . They had instead been sent by the employees,
and their words articulated the message , and request, of
the collective group of workmen . Isley sat long and heard
the words out of the mouths of the Union agents, but he
was not listening to the voice of his employees . It is that
voice - channeled from the majority through the medium
of its chosen spokesmen - that the employer is required
to heed.
And this is true of all contract proposals falling within
the ambit of what have been called proper subjects of
collective bargaining , whether in the economic area, such
as wages, work hours, insurance benefits , etc., or on the
general subject of union security , including the grievance
procedure. Therefore in the broad sense the question, in
any given case , whether the employer has bargained in
good faith demands appraisal of its true attitude toward
the concept of employee group action , and not its feeling
or reaction to the chosen spokesmen , or union agents of
the employees.
There is another important aspect of all so-called
surface bargaining cases that must be made clear.
Rejection of the collective bargaining principle, the
cardinal offense alleged in this complaint , can only be
found, if in fact it existed, upon fair consideration of each
and every pertinent fact of record . The question is one of
motivation comparable to a charge of hidden unlawful
purpose in the ostensibly justifiable discharge of an
individual employee . For this reason no two cases are
alike and none can be determinative precedent for the
next; good faith "can have meaning only in its application
to the particular facts of a particular case ." N.L.R.B. v.
American National Insurance Co., 343 U.S. 395. It is the
total picture shown by the evidence that either supports
the complaint or falls short of the quantum of affirmative
proof required by law. There is no such thing as a
particular phrase uttered , a special contract clause
proposed , or even one demand insisted upon to impasse,
that can, or ought to be labelled illegal in itself . Similarly,
no dispute over a pinpointed contract proposal , no refusal
to yield on a particular item, however proper were it
considered out of context and in isolation, can be ignored
and removed from all consideration . The statute could no
more clearly state that neither party to the bargaining
process need yield its position on any lawful proposal: " .
. . such obligation [to bargain in good faith] does not
compel either party to agree to a proposal or require the
making of a concession . . ." But" . . . one must recognize
as well that bad faith is prohibited though done with
sophistication and finesse. Consequently, to sit at a
bargaining table , or . . . to make concessions here and
there, could be the very means by which to conceal a
purposeful strategy to make bargaining futile or fail."
N.L.R.B. v. Herman Sausage Co., 275 F.2d 229.
A word about this report. In my judgement the record
in its entirety requires a finding that the Respondent, as
alleged in the complaint , refused to bargain in good faith,
and thereby violated Section 8(a)(5) of the Act. I also find
that the employees struck in protest against this illegal
conduct of their employer, and that therefore this was an
unfair labor practice strike . In reaching this conclusion, I
have considered each and every aspect of the proposals
that were exchanged , the timing of the related and
pertinent events, all that was said between the
representatives in the numerous meetings as detailed by
various witnesses , and the many minute items of proposed
contract language altered from time to time . Some of the
cross proposals , and the resultant disputes, were far more
important, and therefore of greater meaning here, than
others . Some , though of cumulative weight, were of much
less significance . It is impossible , nor indeed necessary, to
repeat the entire record in all inclusive detail in a Trial
Examiner's report, else the document , in a case of this
kind , would be a virtual reprinting of the transcript and
exhibits . Decision here rests upon all pertinent matters,
those set out below and those too minor to warrant
separate discussion.
B. Preemption: Unilateral Pay Raises
The Union was certified on September 11, 1967. On
September 19 the Union wrote to the Company requesting
a bargaining conference . The plant manager answered on
September 23, asking the Union to submit its contract
proposals in advance of the first meeting . In the same
letter he advised the Union the Company had told the
employees they would receive wage increases on October
2, 1967: "The precise amounts of these wage increases
have been determined , but have not been announced to the
employees ... we need to know promptly whether or not
you have any objection to our proceeding with these wage
increases as scheduled. Since the announcement has been
made and the employees are expecting these increases, we
do not see any alternative to going forward with them.
Even so, we are willing to consider any objections you
might wish to raise."
The Union 's business representative replied that with
time thus "of the essence," he wished to meet on October
2, to learn just how much the raises would be, and to
request further information to enable the Union to
consider economic matters, but not for any hard
bargaining - "just that we have an exploratory session."
He said the Union would not oppose the immediate raises
already promised the employees . The parties did meet on
October 2 and the raises were put in effect that same day.
It later developed that, whatever percentage the raises
amounted to, the Union formed the wrong impression that
day as to exactly how much it was, believing it then to be
5 percent and learning later from employees that it was
less in some areas . The Union was also informed that day
that the increase was simultaneously being put in effect in
the Respondent 's other plants.
In the light of the realities of organizational activities
among workmen , the Union representatives had no choice
but to say "no" to the Respondent's peremptory question
did they want the raises withheld from the employees. The
amount had been fixed independently of any desires of the
employees on the subject; the time for the raises had been
set and announced to all. Manager Roberson told the
Union in so many words there was no "alternative to
going forward" with the increases . If the Union agents
had said "hold the raises while we tell Management what
the employees think the amounts should be," they, the
chosen spokesmen , would have been looked upon by their
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
principals as causing an immediate hurt to them . If they
said "go ahead with the raises as planned ," they would
seem to be, as the Company now argues, in the position
of having bargained the matter to the employees'
satisfaction. Such a Hobson 's choice is not good faith
bargaining as conceived by the statute . The fact is there
was no real bargaining on a subject which normally goes
to the heart of conditions of employment . By this patent
device of preempting the entire matter of basic economics,
the Respondent effectively eliminated from any possible
consideration the collective view of its employees . This is
what is meant by refusing to bargain , or in "good faith"
to deal with the bargaining agent properly selected by the
majority of its employees. The Respondent effectively
denied the Union the opportunity to function in
accordance with the policy of the Act.
Roberson 's letter of September 23 said the raises had
been decided upon before the matter of the Union's
majority status had been determined with finality. This is
a self-serving statement , and there is no evidence that
decision had been reached so early, certainly none that the
employees had been advised in advance of the
certification . Be that as it may, there can be no question
that the method used did in fact result in exclusion of the
employees' collective voice as a factor to be considered by
management , and it is a just inference the Respondent
knew this would , and intended it to be the consequence.
The inference is strongly supported by the direct proof,
shown in the earlier illegal discharges , that the
Respondent approached the employees ' desire for
collective bargaining with ill will. Its attempt to stifle-any
union movement by firing first organizers, and then
prounion witnesses , had failed . It was to be expected it
would seek another means to accomplish the same end.
C. Management Rights Clauses; No Strike Demand;
Denial of Arbitration
At the second meeting , on November 6, the Union
delivered a comprehensive contract proposal containing a
number of sections ; its agents spent much time explaining
them and the two company men, Industrial Relations
Director Isley and Plant Manager Roberson, commented
as they proceeded . They agreed to nothing , but did not
flatly and with finality say no to any particular item. On
the 21st the Company brought forth its contract
suggestions , written and formal . Now there was talk about
these sections , with the Union asking questions and the
Company explaining . There was also discussion about the
omission , in the Company proposals , of certain provisions
the Union had requested . Again there was very little
agreement on anything , and whenever the Union men said
they wanted something affirmatively , or disliked one thing
or another, the Company officers responded that they
would think about the issues, might later suggest other
language, or propose alternatives . As the meetings
continued the more important questions which separated
the two sides became clearer.
The Union agents advised the Company in the very
first meetings there would be no serious demands for
economic benefits until what Benet called "non-economic
questions" were resolved; the Company went along. A
money demand was put in the hands of the Company on
November 6, but except for several indirect economic
matters - such as vacations , etc., what talk followed was
substantially along noneconomic lines.
With certain differences , there was a detailed grievance
procedure spelled out in the proposals of each side;
disagreement on this entire article was over the Union's
request for compulsory arbitration . Because of the
Company persistent refusal to agree to arbitration in any
form, and however limited in application , the parties never
reached detailed consideration of what appropriate
preliminary steps might be in processing agreements. Very
early in the talking , the interplay between the right to
strike during the life of a contract and arbitration became
a very serious impediment to overall agreement. The
Union itself proposed a no-strike clause, but only with the
understanding that it be accompanied by assurances - via
the arbitration route - that the Company would fairly
abide by the terms of the agreement . Particularly did this
position become a firm insistance by the Union as it
examined the management right clauses demanded by the
Company. It viewed these last provisions, drafted as the
Company insisted they be, as conceding virtual freedom to
the employer to do its will free of the collective desires of
the employees in very important areas . As the discussion
continued into the middle of February and March of 1968,
these three items , management rights , no strike and
arbitration , occupied almost all the serious conferences
that took place, and eventually contributed largely to the
strike in May.
The free hand which the Respondent sought to retain is
seen in a composite reading of several of its proposed
clauses , in the light of its adamant refusal to agree to any
form of binding arbitration. Discharge qnd discipline:
"The employer agrees that no employee will be discharged
except for lawful cause." Seniority rights: "In all matters
involving job openings , layoffs and recalls from layoffs,
transfer of employees from one job to another, and in all
similar matters , the Employer shall give full consideration
to the seniority of the employees affected or involved, and
in all such cases when the Employer deems that skill,
ability and other such factors are substantially equal as
between the employees involved , departmental seniority
shall govern."
Repeatedly the Union urged that there be greater
emphasis on seniority when people have to be laid off, or
transferred, or recalled, or, as the Company required the
contract to say, "in all similar matters." Understandably,
the Company stressed skill and ability as a major
consideration in running a successful business. But
especially difficult for the Union to accept' was the
pin-pointed insistence that the contract language make
particularly clear the Company's right to be the sole judge
of relative skill and ability: " . . in all such cases where
the employer deems that skill and ability and other such
factors are substantially equal ...... [Emphasis supplied.]
There is no question but that with such language in the
contract, no matter how much talking might take place in
grievance proceedings, the employer could in the end take
refuge • behind the wall of its subjective opinion and
disregard any contrary desires voiced by the employees
collectively. And the probabilities are that even an
impartial arbitrator , had the Respondent agreed to have
one, would have been bound by this all-embracing
contractual concession to the employer ' s desires as a
matter of opinion.
After much arguing there came a time when the Union
was willing to concede this also, if in return the Company
would agree to ultimate arbitration. To this the response
was that the Company would arbitrate only if, in
connection with any specific disagreement , it might later
agree to do so. The arbitration issue became part and
parcel also of the continuing and equally fruitless
discussions over the Company's proposal for management
KAYSER-ROTH HOSIERY CO. 1003
rights, and discharge . On the latter the Company
demanded contract privileges to discharge for "lawful
cause," a broad license which the Union wanted to soften
to "just cause ." On management rights , the stumbling
block language was express reservation of all the
prerogatives "which it [the employer] would have by law
in the absence of this Agreement ." The "law" covers
many things , and while it can hardly be said that
insistence upon doing things "lawfully " is in itself wrong,
in the context of true bargaining towards a collective
agreement , the position points the parties towards
litigation rather than in the direction of stable and
peaceful labor relations . In fact , when Benet , for the
Union , attempted to convince the company negotiators
that the employees could live with this language if they
were assured that arbitration would replace lawsuits , Isley,
for the Company, did not hesitate to say "if we violated
the contract that they would take us to court for that."
More significant than all of the foregoing was the
Company' s equally adamant insistence upon a no-strike
clause . The Union had itself started by proposing a
no-strike -no-lockout clause , coupled , however, with the
request that there be binding arbitration where the
grievance procedure failed . With the Respondent never
yielding on a request for arbitration , the no-strike issue
assumed growing proportions . The parties argued at great
length and at many meetings on these issues which
collectively became the real disagreement leading to
strike . The Union' s arguments were not without logical
persuasion, for if it could not strike while the employer
could say no to any grievance without other recourse than
a lawsuit available to the Union, it was left in an
untenable position . In due course the Respondent offered
to modify its absolute demand . On January 16, 1968, it
proposed that in the event the employer refused to
arbitrate a pending grievance the Union could strike, on
written advance notice to the Company, not before the
15th day following the service of such notice, and only if
it did so "within one week after the end of the 14th day
following receipt of the notice ." This limited right was
also restricted to the particular grievance as to which
arbitration had been proposed , and it could not occur
more than once in any 6 -month period . If the exact
1-week period for striking passed without the employees
quitting work , the grievance was to be considered
abandoned.
By March 18, a Federal conciliator was participating in
the meetings and now the Company again altered its
no-strike proposal by granting the Union the right to
strike once every 3 months, but always subject to the
same strictures set out in detail in its January 16 proposal.
That these modifications , on their face at least, were a
withdrawal from the absolute no-strike position , must be
admitted ; the proposed 15-day cooling off period was a
good idea . The many hedges which were intended to
circumscribe the limited privilege, however , make the
concession appear in a different light . Four strikes a year
is a lot of strikes. But it is not the strike itself which a
union desires as a means for assuring serious
consideration of the employees' views concerning fair
conditions of employment . Rather, it is the freedom, and
the right of the employees to act in concert, a privilege
guaranteed by the statute , that balances the scale against
the prerogative of the employer to decide dnilaterally how
to run the business . The operations of this plant are much
mechanized, with technological changes of all kinds the
order of the day; there are over 500 employees involved,
and there is no knowing how many disagreements could
arise over the questions of setting changed production
rates throughout the year. The Company proposed
limiting any one strike to one, and only one pin-pointed
grievance. There is something insidiously disturbing and
unsettling in the requirement that the employees must
decide, precisely within the given 7-day period, to cease
work or surrender the complaint. When the parties to
collective bargaining honestly recognize each other's right
to look after their respective interests, they will suggest
arrangements which tend to minimize the likelihood of
economic struggle , rather than to unnerve a grievant into
taking hasty and possibly ill-considered action.
A more condescending recognition of the employees'
right - through their representatives - to have a fair
voice in the determination of their working conditions,
both in writing a contract and in its day-to-day
application, would be more easily reconcilable with
concomitant foreclosure of the right to act collectively
during the entire life of the agreement. Viewed together,
these three inter-related demands - broad freedom to act
unilaterally in the treatment of employees , denial of an
amicable and definite method for final resolution of the
predictable and recurring disputes in the administration of
the contract, and the surrender of the employees' statutory
right to act in concert - persuasively indicate a pervasive
intent to deny the employees the right to an effective
collective voice in their economic destinies.'
Again and again during the meetings representative
Benet, while pleading that the Company yield somewhere,
kept repeating that what the Union wanted was a contract
"it could live with." In its brief the Union speaks of these
issues, and the impediment they became to any
collective-bargaining agreement, as "related directly to
union security and the continued existence of the Union as
an institution in the plant." And a Circuit Court
characterized comparable proposals as what no "self
respecting union" would accept . N.L.R.B. v. Reed &
Prince Mfg. Co., 205 F.2d 131 (C.A. 1), cert. denied 346
U.S. 887. No matter how phrased, what all this means is
that by insisting upon these related demands to the point
of impasse , and then defending each separate one on the
ground that no employer is required to yield on any one
item in a contract, the Respondent was furthering a
calculated intent to eliminate from any meaningful
consideration the entire principle of union recognition.
Restated: What it really sought, behind the formal facade
of the collective bargaining 'process, was the right to
continue to operate its business quite as though a majority
of the employees had not chosen to be represented by an
exclusive bargaining agent . It will not suffice as a defense
that the Company was always ready and willing to sign a
contract which in its preamble gave lip service to statutory
recognition of the Union as certified by the Board.
Collective bargaining " . . . is not simply an occasion for
purely formal meetings between management and labor,
while each maintains an attitude of `take it or leave it'; it
presupposes a desire to reach ultimate agreement, ...."
N.L.R.B. v. Insurance Agents ' International Union, 361
U.S; , 477. And "ultimate agreement" here means an
honestly negotiated arrangement, not an imposed fiat as
to what conditions of employment shall be.
'Alba- Waldensian, Inc., 167 NLRB No. 101, enfd . 404 F .2d 1370 (C.A.
4).
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. The Request for Authorized Checkoff
In its initial written proposals the Union requested the
usual union dues checkoff clause , as well as a union
methbership requirement conditioned upon a possible
change in local law which might permit such a contract
provision as a condition of employment in the State of
Tennessee . As soon as the Company objected to the
second clause , it was withdrawn.
It is a fair statement, on the record as a whole, that
talk about this question of checkoff, and of the three
related subjects - arbitration , no strike and management
rights - consumed by far the major part of all meetings
during the last few months before the strike. The
Respondent 's position was no, from first to last. That this
was a predetermined attitude is a reality in no way altered
by the fact the Company representatives listened to all the
Union 's supporting arguments , said they would study and
consider the various modifications of language the Union
suggested , and explained a variety of reasons of their own
for rejecting any form of checkoff. With the Union
countering the successive objections voiced by the
Company with reasonable proposals for satisfying each of
them as they came , in the end Labor Relations Director
Isley fell back upon the unanswerable position that it was
against "company policy ." To say, in response to a
checkoff request , that it is against company policy is to
foreclose all meaningful discussion . But the Respondent's
persistent indifference to any attempt by the Union to
compromise the conflicting arguments spoken during the
meetings , points strongly to an inference that the refusal
to yield was predicated on company policy from the start,
and that therefore all of the discussions which followed
were empty gestures , intended by the Company to be
fruitless . The original request was for irrevocable dues
authorization cards . Benton , then speaking for the Union,
testified that on December 7 he produced a varied form
providing for a 5-day escape period at the end of any year
because the Company had found fault with the irrevocable
card . In February the Company argued it would be too
costly for it to handle the bookeeping for payroll
deductions . Genet , then leading the union team offered to
have the Union pay whatever the cost might be. Isley
rejected the proposal , and instead went on to voice a fear
that the employees might be coerced into signing the
cards . To this Benet responded that where such conduct
might be shown , the cards would not be honored . Still no
agreement . There came another ground for refusal: with
dues deducted from their pay the employees would
become disgruntled , would hold the Company responsible
for lessening their take -home money , and would therefore
demand more raises . On March 7 Benet answered this by
asking the Company to suggest some form of revocability
in all the authorization cards, so that any employee who
felt too much was being taken out of his pay could put an
end to it at will . The Company ignored the idea . A month
later , at the April 2 meeting , with a Federal conciliator
trying to bring the parties together , Benet offered a
straight revocable checkoff. Now Isley said he was not
convinced a majority of the employees favored a checkoff
anyway . Benet asked would the Company yield if he could
prove the contrary? He got the usual answer : if the Union
could prove this the Company "would give it further study
and further consideration ." Somewhere along this period
the Company offered the Union the use of a table in the
plant, where some members of the Union could collect
dues from employees, or, if the Union wished , a proposal
that the Union obtain bank drafts directly from the
employees and deposit them in the bank. Benet called this
a "mockery."
On April 25, 2 weeks before the strike, the Union
offered to join in a secret election , to be supervised by
ministers, union and nonunion employees participating, to
verify majority desire for payroll checkoff of dues, and to
forego any arbitration provisions, if in return the
Company would abide by a majority vote and agree to
checkoff and also concede the Union the right to strike
over unresolved grievances. The settlement proposal was
rejected.
In its brief the Union asks for a specific finding that in
refusing to agree to a checkoff provision in the contract
the Respondent thereby committed an unfair labor
practice, and further, that it now be ordered to accept
such a contract clause . In the circumstances before me, I
do not reach that question. The specific allegation is not
made in the complaint , the case was not tried on that
theory, indeed the General Counsel, as well as the Union's
attorney both made clear at the hearing that this is a "bad
faith" case in the "totality view" sense, and the finding is
not necessary for the broad conclusion made below and
the remedy appropriate in this case . It may well be that if
the facts of record on this one issue were separated from
all else that was shown, they would support an
independent refusal to bargain finding .' "Company
policy" could hardly preempt fair consideration of a
checkoff request, and the Respondent did shift from one
ground of opposition to another as the exigencies of the
discussion made necessary. Of course employees who see
less in their pay envelopes may desire more, but if this is
sufficient reason to put an end to all talk about checkoff
in collective bargaining there would be an end to all such
arrangements. What is most revealing is the company
argument that it did not want to act as collection agency
for the Union, would not be used to enforce the Union's
contract with its members. The exclusive majority
representative speaks for the employees, it is their agent,
and not set in opposition to their interest. Isley's rejection,
as early as April 2, of the Union's offer to prove this was
the employees making the request by polling them, proves
that management 's representatives were not hearing, and
did not want to hear the voices of the majority. The
Respondent's total reaction to the Union's request for
some kind of a checkoff provision is weighty evidence of
bad faith.'
E. Contract Provisions Agreed Upon: Concessions by
the Company
In support of its assertion that it did bargain in good
faith the Respondent points to a number of concessions it
made to union demands during the conferences . And it is
true that on certain items in dispute the management
agents receded , either in full or to a degree, from positions
taken when demands were first exchanged. Partly through
cross examination of union representatives and partly in
direct questioning of plant manager Roberson, as
testimony was being received during the hearing the
Respondent characterized some items as agreements
reached , changes in position by the Company indicating a
yielding attitude towards the Union, material generosity in
matters of substance. There was an implied argument that
all of this supports the Company's affirmative defense, but
there is no candid statement of the Respondent's position
'Cf. Roanoke Iron & Bridge Works, Inc, 160 NLRB 175.
'H. K. Porter Company, Inc., 363 F .2d 272 (C.A.D.C.).
KAYSER-ROTH HOSIERY CO.
as a matter of law . No brief has been submitted to
explicate the defense . It is important therefore to state, at
least as reliably as the evidence permits, just what changes
they brought about , either as reflecting management's
bargaining attitude , or with respect to working conditions
before and after the so-called concessions . A fair reading
of the total record shows clearly that the Respondent
relies on every one of the following items to prove the
complaint wrong.
There was agreement on the recognition clause and a
no-discrimination provision . The Company agreed to
recognize the Union , as the Board 's certificate called for;
the no-discrimination clause is a paraphrase of the
language of the statute, and adds : "Neither the Employer
nor the Union will discriminate against any employee
because of race, color , creed or national origin or sex."
The Union requested jury duty and the Company agreed
to incorporate this in the contract ; it had been paying for
jury duty absences before the Union came on the scene. It
also agreed to give a Christmas bonus , another union
demand . This too the Company had been giving the
employees in the past without a contract.
Another demand was for time and a half for all work
over 8 hours in 1 day, as well as for any Saturday work,
plus double time for Sunday work . The Company first
rejected all this; it wanted to continue its 40 hour week no
matter when the work was performed . Later it offered to
agree to double time on Sunday . Again , there is
uncontradicted evidence that its plant in Dayton does not
do any Sunday work . It otherwise held firm to its 40-hour
week concept . When Roberson , testifying at the end for
the Company , referred to this as a change in existing
conditions, therefore , he was not speaking of anything of
substance.
There was also a change in the Company 's initial
response to the Union 's proposal for reporting pay, which
was for 4 hours pay if there was no work and it was not
the fault of the employees . The Company first rejected the
entire proposal , but on November 21 offered 2 hours
reporting pay. Benet testified he was informed by the
employees this was nothing new . Here again the plant
manager at one point in his testimony said it was a
concession to the Union . In the sense that such a
condition of employment was never contractually assured,
he was right . As to what the Company ' s policy has been
in the past , his testimony cannot serve to contradict
Benet . Roberson said : "We had a reporting pay that had
never been used to my knowledge . . There was a
policy, a policy manual that hadn 't ever been, used to my
knowledge ." He then said he did not think reporting time
had ever been paid in the 2 years he had been manager.
Later, on cross examination , he was asked : "Did you have
a reporting pay prior to bargaining with the union? A:
Not four hours ." It may be that the Respondent ' s method
of operation , or its efficiency , is such that the occasion for
reporting pay had not arisen in Roberson ' s experience. I
think it clear , however , that its agreement to state a
2-hour reporting pay policy in a contract amounted to no
change whatever so far as the employees' employment
conditions were concerned.
To say, as the Respondent would have it, that
"agreement" on these items proves the Company was
fairly disposed toward the principle of collective
bargaining is to exalt shadow over substance .' For an
employer to yield on a demand which the statute expressly
says he need not concede , is one thing . It is quite
something else again to accept contract language which
does no more than restate the law that binds the employer
1005
regardless of contract , such as outright recognition, or a
provision not to restrain and coerce employees in violation
of Section 8(aXl) of the Act . Even the agreement not to
discriminate on the basis of race or color was in no sense
a condition of employment the Respondent was free to
grant or withhold ; there are other laws equally binding
upon all employers.
The Respondent's first counterproposal, a fully drafted
set of provisions covering the usual elements of a standard
agreement, was a virtual restatement of working
conditions then in effect . It ignored practically all those
clauses in the Union' s proposals which meant any change
of substance . One union demand was for increases in
hospitalization and life insurance , and the Respondent's
response to this was literally to continue the established
practice . On March 7, 1968, the Company offered
increased benefits in this area - daily hospital room and
board from $ 15 to $18, hospital extras from $ 100 to $150,
and surgical maximum from $200 to $300 . This reflected
a change the Respondent was then putting in effect in all
the plants of its hosiery division.
There were also some concessions which, whatever their
substantive value might be, were indeed real. The Union
wanted a probationary period for new employees of only
30 days, and the Company said it should be 1 year. After
some talking the Company said it would agree to make it
90 days . The Union also asked that in the event of a
layoff the employee should retain his seniority for 1 year
and the Company said only 30 days; it later offered to
make this 90 days, and still later suggested 6 months.
Another request of the Union was that in the event an
employee left on a leave of absence, including maternity
leave, he or she should be guaranteed the old job on
return . The Company said it had never done this and
could not now . With time and some talk, it
cross-proposed that in the case of the ordinary leave the
employee would be restored to his old job but only "if
practicable," and with the further understanding that the
employer would not be required to displace any employee
from a permanent assignment to make room for the
returning man. As to maternity leaves, which the
Company had also never guaranteed , it agreed to give
them substantially equivalent jobs but not to displace
employees with longer seniority.
The Company has long paid for three holidays, with
certain incidental disqualifications, such as employees who
had not worked continuously since the previous holiday,
or been absent without leave the day before or the day
after the holiday. The Union asked for eight paid
holidays, plus certain detailed protections , such as time
and a half for holiday work plus the regular pay. The
Company later agreed that holidays should be credited
toward the 40-hour week in determining overtime pay,
and that employees need not have been on duty
continuously since the previous holiday , but only for the
3-month period preceding the holiday. The Union wanted
all transfers from one job to another to be deemed
permanent after 30 days. The record does not clearly show
what the past practice had been, but the Company did
agree to this proposal.
There were also some concessions in what may be
called the Union security area . These, of course , bear no
'The following question from Respondent's counsel, which drew an
affirmative answer from the plant manager, illustrates the deliberately
confusing verbage with which the record is cluttered. "Q: When it started
bargaining with the Union, did you have a declaration of the purposes and
intent of cooperation between the company and the union?"
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
relationship to past practice , as it appears there has never
before been a union in this plant . The Union wanted the
Company to provide plant bulletin boards to . post notices
of "meetings , social affairs , etc." The first response was
rejection ; on January 16, the Company agreed , but said
the notice must be limited to union meetings not
controversial and approved by the plant management. It
later expanded this to include notices for social affairs.
Other contract language proposed by both sides related to
what the witnesses called technological changes , or rate
setting procedures in day-to-day operations affecting the
employees ' take-home pay. Exactly how the Union wished
to pin management down to predetermined procedures is
not at all clear on the record , although there is no doubt
the Company desired to retain the free hand of the past,
and the Union felt there had to be an agreed -upon and
indisputable method . There was much talk on the subject
but the record as a whole shows that in most instances the
discussion simply moved into the question of arbitration,
an end solution which the Union saw as the only way to
resolve repeated questions that might arise in this very
complex area . One of the things the Union wanted was
privilege for its representatives to enter the plant, to visit
the working area itself , to see for themselves whether a
grievance that might be voiced by employees had merit or
not. The Company yielded here only to the extent of
agreeing union representatives might discuss or investigate
grievances with employees in the employer ' s office after
arranging appointments with management so as not to
interfere with production . It refused any access to the
working areas.
At the very first meeting the Union agents requested
data concerning the existing wage structure , names and
addresses of all employees , their individual relative
seniority status , and departmental earning averages . It will
be remembered that by this time the Company had
already itself decided what raises to put in effect and had
advised the employees of the date they could expect it.
The Respondent did furnish all this information as
requested , and it took some time and work to prepare it.
Several pieces of correspondence on this subject were
placed in evidence , and at the hearing the Respondent
made much of the fact this courtesy had been extended to
the Union . As to the home addresses , and perhaps even
the names of the employees , the Company was not
obligated to favor the Union, but concerning exact data as
to their earnings and other details related directly to the
wage structure , it was bound as a matter of law to reveal
the facts .' In any event , while intelligent understanding of
the existing conditions of employment is a necessary
prerequisite to sensible collective bargaining , it cannot be
said that making the information available is itself a part
of the negotiations . What is brought in question by the
complaint is the nature of the Respondent's attitude
toward the collective voice of its employees across the
bargaining table on the subject of how to determine their
future compensation.
F. Impasse: strike
In the sense that other contract proposals made by the
Union had not withdrawn by May 6, that although there
had been talk about some of them from time lo time they
remained unresolved , it can be said many questions were
still at issue when the employees quit work . Among these
'Timken Roller Bearing Company Y. N.L R. B.. 325 F .2d 746 (C.A 6),
cert. denied 376 U.S. 971. -
were the requests for eight paid holidays, 3 weeks'
vacation , condolence pay, shift bonus , reporting pay, etc.
The Union had handed the Company a one sheet list of
items on November 6, this apart from its full contract.
For the most part these were no more than succinct
references to the same matters covered in the formal
contract language, with the exception of one item for a
15-percent general wage increase and another for a
cost-of-living increase based upon the United States
Department of Labor index . On these last two, which the
parties considered purely economic matters , there was no
significant discussion. And this was in keeping with a
virtual agreement to defer questions of this type entirely
until the noneconomic issues were settled.
Why did the employees strike? This is an inquiry into
motivation , exactly like the question whether the
Respondent was or was not in good faith according to the
Union recognition as required by law . And like that
question , the answer must arise from the surface
appearance of things, what issues were debated most
heatedly towards the end , what the parties said might or
might not avoid the strike, and what at least seemed to be
the salient bones of contention . The Union says it struck
because it was denied a contract " it could live with." This
is a general phrase that says little in the evidentiary sense.
The Company argues it was an economic strike, and this
is really denial of the complaint allegation of unfair labor
practice strike. The proof does show convincingly,
however, that the strike was not over money , or what is
commonly called economic demands . There is no way of
knowing whether, had the Company come to terms with
the Union on the issues of no strike , no arbitration, no
checkoff, and retention of virtually unilateral right to
determine promotions , layoffs, discharge , etc., there might
not have been an impasse over the 15 percent wage raise
demand, and therefore a strike at a later date . The parties
never reached that point . If economic strike means one to
enforce a union 's demands for what would directly cost
the employer more money, this was not an economic
strike.
A Federal mediator appeared for the first time at the
March 18 meeting. Talk centered upon the arbitration
clause issue ; the Company repeated its refusal to permit
an outsider to decide matters of substance in the shop,
and as a palliative to the Union offered to agree it might
have the right to strike once every 3 months instead of
every 6 months. On April 2 and 3 Mediator Peek was
present . There is no real contradiction of Benet's
testimony that this meeting started with a "rehash" of the
main issues which Peek himself recapitulated for clarity of
discussion , and that these were: (1) management rights, (2)
arbitration, (3) seniority, and (4) no strike. This is when
Isley, of the Company, said he was not convinced a
majority of the employees really wanted a checkoff, and
when the Union offered to prove it by an election,
answered only that he would think about it. He tried to
soften the impact of the no-strike - no-arbitration box by
suggesting an additional step in the grievance procedure, a
conference between a company vice president and a high
union official. Benet then offered to make the checkoff
authorization cards revocable at will . Still no compromise.
On the 25th the Union offered what it called a
"package deal"; the Union to withdraw its request for
arbitration and all the employees to be polled secretly on
whether they desired payroll dues checkoffs , and in return,
the Company to withdraw its insistence upon the no -strike
clause and to agree to a checkoff provision if a majority
of the employees expressed themselves in favor of it. On
KAYSER-ROTH HOSIERY CO. 1007
April 29 the Respondent refused to settle on this basis and
the strike began on May 6.
These were the pinpointed areas of disagreement that
provoked the strike . If it must be said , upon fair appraisal
of the Company ' s adamant insistence on these four
questions - and of the logical relationship among the
four , upon the background evidence of the Respondent's
cgnduct preceding the meeting ," upon consideration of
management ' s position - offering or denying - with
respect to other details discussed , and, of course , also the
concessions it made in the course of the extended
discussions , that the Respondent was not dealing with the
employees' chosen exclusive spokesmen in good faith, it
follows that the employees struck to protest against the
unfair labor practices being committed by the employer. I
find that the Respondent refused to bargain with the
Union in good faith and thereby violated Section 8(aX5)
of the Act. As stated above, in this area of the law no one
citable decision can be perfect precedent for a later case.
The following words of the First Circuit Court in
N.L.R.B. v. Reed & Prince Mfg. Co., 205 F.2d 131, are
nevertheless apposite to the case at bar: " . . . it seems
clear that if the Board is not to be blinded by empty talk
and by the mere surface motions of collective bargaining,
it must take some cognizance of the reasonableness of the
positions taken by an employer in the course of
bargaining negotiations . . . . while the Board cannot force
an employer to make `concession' on any specific issue or
to adopt any particular position , the employer is obliged
to make some reasonable effort in some direction to
compose his differences with the union , if Section 8(ax5)
is to be read as imposing any substantial obligation at
all."
I also find that this was an unfair labor practice stike
from its inception.
The work stoppage continued for 7 months. At the
beginning the Company carried on partial operations but
on June 25 closed down entirely . It resumed , again on a
limited basis , on September 9, and this is how matters
stood when the hearing in this proceeding opened in
October . There were meetings during the strike , essentially
attempts to bring about a settlement and get the people
back to work . Several times a Federal mediator tried to
help. There came a time when the City Fathers and local
men of influence lent their good officers . Always the
critical issues which separated the parties were these
questions of arbitration and no-strike, the tie - in between
contract language which would permit management to
have the determinative say in conditions of employment
while restraining the Union from any right to bring
pressure if it believed the eventual contract might be
violated. Benet , for the Union, offered variously to
convince the Company to agree to arbitrate the basic
issues of the strike itself and thus reach agreement on a
contract and end the strike . Some one proposed that the
Tennessee Commissioner of Labor act as arbitrator, or
that there be a fact-finding board from the Governor's
office. Nothing helped.
"The Respondent 's general and unlawful determination to evade the
statutory duty to bargain collectively with any exclusive representative its
employees might choose is evidenced not only by the earlier unfair labor
practices committed in this very plant - Kayser-Roth Hosiery Co., Inc,
166 NLRB No . 56 - but also by unfair labor practices committed in
other of its plants . Greensboro Hosiery Mills. Inc., 162 NLRB 1275,
enforced in part 398 F.2d 414 (C.A. 4), and Kayser-Roth Hosiery Co..
Inc., 158 NLRB 28, enfd . in part 388 F.2d 979 (C.A. 4).
Towards the end a national representative of the U.S.
Conciliation Service proposed a compromise. (1) No
arbitration in the contract. (2) A modified no-strike
clause, with protection to the Union in the event of a
wildcat strike.' A complaint of the Union had long been
that the language desired by the Company on this matter
exposed the Union to liability in damages beyond reason;
whether Benet was right or wrong in the way he construed
the Company's draft is beside the point. (3) A secret
election among all employees 1 month after they returned
to work on whether they desired a checkoff provision in
the contract, with the understanding that if 75 percent
voted in favor the Respondent would agree to such a
contract clause. Both parties rejected the suggested
compromise.
There is no question, therefore, but that the motivating
factors which provoked the employees into striking in the
first place never changed. In June the Company offered a
10-cents per hour raise across -the-board for all employees
in an effort to get the people back to work. The offer was
repeated on July 11, and by this time it was revealed that
the Respondent was then placing this same raise in effect
in all plants of its hosiery division. Implicit in the offer, if
not literally expressed, was the understanding that the
strike would end and the employees return to work on the
same basis as before or with the Union accepting a
contract worded in keeping with the Company's last stated
position on all issues. Aside from the fact that this
amounted to another instance of the Respondent
indicating to its employees the Union was of no value to
them, the money offer was irrelevant to the entire
question of the strike. The clearest fact on this record is
that wages had nothing to do with the quarrel between the
employees and the Respondent.
The hearing was in recess between October 25 and
December 3. In the interval the parties reached a
settlement, signed a contract and the employees returned
to work. The issue raised by this complaint is not mooted
by the fact of the Union having agreed to some kind of a
contract. N.L.R.B. v. American National Insurance Co.,
supra. By this time strong economic pressures were being
exerted upon both the Company and the employee. It is
possible the Respondent yielded, abandoned its proven
illegal refusal to bargain in good faith . It is equally
possible the employees could no longer bear the hardships
of unemployment and went to work even without proper
recognition of their statutory right to bargain collectively
with their employer. The fact remains that the Respondent
committed unfair labor practices before the strike and
that this was the reason for the work stoppage.
G. Allegations of Restraint and Coercion in Violation
of Section 8(aX l )
In early June, after the strike had been on for a month,
Mr. Joe Byrd, executive vice president of the Respondent,
came to Dayton. There had been charges and
countercharges of misconduct between pro and antiunion
factions in-the city and rumors of plant closings and other
extreme action were rampant among the populace. One
morning a group of five or six striking women were at the
picket line and saw Byrd standing a distance away. One of
the ladies, Kathleen Wilkey, called Byrd to them, because,
as one witness explained , he was not at the plant a great
deal and "they doubted that he knew what was going on."
They also wished to talk to him "about the conditions of
the mill inside"; they complained to him about the
behavior of Plant Manager Roberson, spoke about
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"production ," mentioned something about one girl or
another being "on the makeup list," and said they wanted
"three minute breaks ." Byrd stayed with them for 20
minutes.
Three employees testified about this conversation -
Audrey Goforth , Helen Brady and Kathleen Wilkey. Each
started her direct testimony by quoting Byrd , variously, as
having told them to move away from the town if they did
not like working conditions as they were , and that if they
did not return to work the plant would be closed
permanently , or physically removed . As the story
continued , it developed that each witness was slanting
Byrd ' s words and presenting them out of context. Byrd
was present in the hearing room during the first 4 days of
trial in late October , when these witnesses appeared. He
did not testify when the Respondent offered its defense
more than a month later; counsel for the Respondent
stated Byrd was unavoidably occupied elsewhere . There is
a stipulation that had Byrd spoken as a witness he would
have said that he came to Dayton in June to quiet rumors
about the plant planning to close , that some pickets
engaged him in conversation , that they criticized the plant
manager and his staff, and that in response he told them
that if they disliked their jobs "that much , whey don't you
get a job elsewhere ." It was also agreed Byrd would have
denied saying anything about closing the plant.
The truth about the essence of the conversation lies
somewhere between the extremes. Clearly the employees
were trying to select Byrd ' s words so as to narrow them to
the mere statement that the plant would close . A total
reading of their testimony, however , particularly with
reference to certain portions of their pretrial affidavits,
lends a different color to the resultant composite story.
Moreover , they evinced a lack of candor on another
subject which is not unrelated to the substance of their
talk with Byrd that day, a deliberate deceit which greatly
impaired their credibility . The city of Dayton was in
distress because of the strike , which divided the public at
large . There were criminal charges of personal violence
filed , unexplained physical damage to property and
general incrimination made in newspaper and radio. The
women witnesses disclaimed all knowledge of these things,
not only of personal involvement but even of any rumor;
they did not read newspapers, never listened to the radio.
Fear of possible self-incrimination could well explain this
behavior on the witness stand. But there is every
indication that what rumors of plant closure there were,
and possibly even what Byrd said about closing, if he said
anything at all, joined violence or strike with the thought
of shutting the plant entirely.
Goforth ' s and Brady's testimony showed clearly that
Byrd's first reaction to the women 's complaints was to
attempt to prevail upon them to abandon the strike and
return to their jobs . He then asked why did they not leave
town , so long as they did not chose to work. The
implication , which the witnesses sought to impute to Byrd,
was thLt he then threatened to close the plant
permanently , or dismantle it completely if they refused to
move away . The total testimony convinces me that what
he more likely said was that if the employees continued to
refuse to work , the Company would be compelled to
discontinue operations . It seems there were then only a
small complement on duty . Thus, from Goforth's
testimony : "He said that if we didn 't sell out and leave
that they would have to.... I was down there and when
he was out at the gate talking to us . . . He said why
didn 't we sell our house and leave ; if we wouldn't come
back to work , why didn ' t we just sell out and leave... .
And I told him I had just built a new house and had no
intentions of leaving , and that was when he said , well if
we didn ' t it looked like they would have to." In her earlier
affidavit Goforth wrote : "I think that the last thing he
said before going back to the plant was that he hoped that
he would see us soon - see us back soon ." Brady quoted
Byrd as saying " . . . he asked us if we didn 't like it to
find a job somewhere else . . . he said if we didn 't like it
there for us to move .... `Well, if you all don't move, it
looks like we will have to.' " The ambiguity in this quote,
coupled with Wilkey's phrasing of Byrd ' s words , satisfy
me that the Company officer was telling them that if they
did not return to work the Company would be unable to
continue limited operations with nonstrikers and would
have to shut down entirely . Thus , from Wilkey's
testimony : " . . . he said why didn 't we come on back to
work and maybe we could work something out after we
got back in, and that is when Helen talked to him, Helen
Brady . She asked him or told him that we couldn't come
back in without a contract , and he said if we didn ' t like to
work at the plant why didn ' t we sell our homes and move;
and that' s when Audrey told him she had built a new
home and that she had no intentions of moving . He said,
`Well, if you all don't , it looks like we will have to.' "
I find that Byrd that day did speak of closing the plant,
not as retaliation against the strikers for refusing to sell
their homes and leave Dayton , but as notice to them that
continued economic pressure by the Union might require a
complete shutdown as a measure of self-protection by the
Company . And this is precisely what the Company did
later that month . The employees' own testimony proves he
desired first and foremost that they work , for this is what
he told them both at the start and the close of his 20
minute talk with them . I find the evidence insufficient to
prove the complaint allegation that Byrd violated Section
8(aXl) of the Act that morning.
There is further evidence intended to prove unlawfully
coercive statements by three foremen and two assistant
foremen . The foremen are Gene Pickens , first shift
boarding department , Tommy Suttles, night shift boarding
department , and Frank Hutton , of the shipping
department . The Respondent disputes the supervisory or
agency status of assistant foremen Leonard Brady and
Dexter Smith , and I believe the total record fails to
establish their alleged management status . For some time
Brady and Smith worked as carry boys, one on the night
and one on the day shift in the boarding department,
where their duties consisted exclusively of bringing bundles
of work to the places of the approximately 30 employees
in the section as they needed it, and then taking the
finished work from their stations to the next room for
further processing . Each was given the title of assistant
foreman, Smith on January 8, 1968 and Brady on April 1.
There was no change in their work duties at all. Pickens,
night shift foreman , said he decided to call Brady his
assistant because the employees gave Brady "trouble"
when he brought work for them to do, and that with the
title there would be less complaining. The plant manager
said the change in the name was made "to improve the
work procedures," but that the method of operation never
changed . Neither man was given a raise in pay at the
time , but Smith received a 10-cent -per-hour increase
sometime later. There is clear , direct and uncontradicted
evidence neither of these men has any supervisory
authority whatever . They do not attend the regular
supervisory meetings, may not change or recommend
changes in employee status, and spend their entire time
carrying finished or unfinished work from place to place.
KAYSER-ROTH HOSIERY CO. 1009
The foremen told the rank-and-file employees that the
now "assistant foremen " would decide what work had to
be done and that when they brought work to each man
the employees were to do just that work. This was exactly
what Smith and Brady had been doing all along.
Employee Pritchett testified that one day the foreman had
gone to a funeral and he therefore asked Dexter Smith for
leave to go home early, and that Smith granted
permission. In fact foreman Hutton was not absent from
work at all after Smith became his assistant . Pritchett was
mistaken.
Before the meetings of company and union agents
started, and a number of times while they were going on,
the higher officers of the Respondent expressly instructed
all its supervisors at management meetings not to
speculate as to the progress of the bargaining, not to
speak about the Union at all with anyone, and not to be
entrapped into answering seemingly innocuous questions
that the employees might ask. Donovan Wilkey testified
that a week before the strike foreman Pickens volunteered
to him that "if the Union comes in . . . within six weeks
we would be cut 20 cents an hour." Chester Smith,
another employee, testified that he asked Pickens, also
shortly before the strike, why the Company did not sign a
contract, "and I said all we wanted was arbitration and
check-off and he said they wouldn't sign no contract with
arbitration and check-off. He said if they did that later on
we would want something else." His earlier affidavit gives
a different version of this talk. "I asked Pickens if he
thought they would get the thing settled? ... Pickens said
he didn't know." Pickens conceded he told Smith he knew
nothing about the contract negotiations , but he denied
telling him the Company would not sign an agreement, or
that Wilkey's pay would be lessened because of the Union.
I credit Pickens. Smith's affidavit is more reliable than his
later recollection.
Tony Pritchett related a talk he had with foreman
Hutton before the strike. He was worried over what might
happen if he joined the Union and therefore approached
the foreman to ask advice. As he first recalled, while
testifying on direct: " ... he said if we elected to go on
strike up there that I would lose my job, ... so I thought
I would go ahead and join the Union, and he said he
couldn't tell us what to do; but he said that Mr. Roberson
had made it clear that the job had to be done and he said
that if we didn't do it they would have to hire somebody
else to do the job." Asked to repeat the words on cross
examination , they came out like this: "Sir, he said if we
elected to go out on strike that the work was going to be
done regardless and he said even if that meant they would
have to hire someone else . That is word for word what the
man said."
Hutton denied he told any employee they would be
discharged for striking; he said he followed instructions
and spoke to no one about the Union. He added that
when Pritchett asked for his advice he did no more than
direct him to the bulletin board, where a company letter
to all employees had been posted.
Finally, there is the testimony of Chester Smith that
shortly before the election he approached foreman Suttles
to ask: "Do you reckon they will sign a contract? And he
said no, that Kayser-Roth would not sign no contract
under no circumstances." Suttles, in his testimony, like
Hutton, also spoke of the Company's instructions to say
nothing about the Union and to refer employees to the
printed notice; he too denied telling Smith the Respondent
would not sign a contract.
I do not for a moment doubt the Company repeatedly
instructed all its supervisors to say nothing about the
Union, to avoid all discussion of the subject no matter
who approached them, or under what circumstances the
provocation might arise. Especially must I believe the
lower members of management were warned not to
indicate hostility or antiunion animus on the part of the
Respondent. In his general characterization of the many
conferences he attended, plant manager Roberson made it
a point to emphasize that the Company never once said its
position respecting a particular item under discussion was
final. Rarely did the Company representative state a flat
no to anything the Union requested. Counsel for the
Respondent painstakingly drew from the witnesses the fact
that there was no "rejection," in haec verba, of union
proposals. The refusal to bargain found above was subtle
and oblique rejection of the fundamental principle of
collective bargaining, and it was accomplished with finesse
and sophistication . With this the total picture of the
events covered by this record, it is hardly likely the
supervisors, in direct disobedience of orders to the
contrary, would outspokenly articulate the position which
the Company took such great pains to mask. Foremen
Hutton and Suttles may well have exchanged some
innocuous talk about the Union with these employees -
they had long been friends - but I do not believe they
made the direct statements attributed to them that the
Company would flatly refuse to sign a contract. I credit
both foremen with respect to these conversations.
THE REMEDY
Having found that the Respondent engaged in an
unlawful refusal to bargain with the Union in good faith, I
shall recommend that it be ordered to do so upon request
and to cease and desist from further such unfair labor
practices in the future. In the light of the nature of the
unfair labor practices found on this record, and the past
unfair labor practices committed by the Respondent in
this very plant, I shall also order that the Respondent
cease and desist from in any other manner interfering with
the rights of its employees to enjoy the statutory
guarantees of self organization.
THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of
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.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning
of Section 2(2) of the Act, and is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. All employees at the Respondent's Dayton,
Tennessee, operations, excluding office clerical employees,
methods and standards employees, professional employees,
guards and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bargaining
1010 DECISIONS OF NATIONAL
within the meaning of Section 9(b) of the Act.
4. Textile Workers Union of America, AFL-CIO, was
on September 11, 1967, and at all times thereafter has
been the exclusive collective-bargaining representative of
Respondent's employees in the appropriate unit, within
the meaning of Section 9(a) of the Act.
5. l y refusing to bargain with the above-named labor
organization in good faith the Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(aX5) and (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record in the case, I recommend
that Kayser-Roth Hosiery Company, Inc., Dayton,
Tennessee, its officers, agents , successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith with
Textile Workers Union of America, AFL-CIO, as the
exclusive representative of all employees in the bargaining
unit.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to
self-organization, to form, join, or assist any labor
organization , to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Upon request bargain collectively with the Union as
the exclusive bargaining representative of all employees in
the appropriate unit described above, with respect to rates
of pay, wages, hours of employment, and other terms and
conditions of employment, and if an understanding is
reached embody such understanding in a signed
agreement.
(b) Post at its place of business in Dayton, Tennessee,
copies of the attached notice marked "Appendix.""
Copies of said notice, on forms provided by the Regional
Director for Region 10, shall, after being signed by the
Respondent's representative, be posted by the Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps it has
taken to comply herewith."
"in the event that this Recommended Order is adopted by the Board:. the
words "a Decision and Order" shall be substituted for the words the
LABOR RELATIONS BOARD
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board ' s Order is enforced by a decree of United States
Court of Appeals , the words , "a Decree of the United States Court of
Appeals Enforcing an Order" shall be sutstituted for the words "a Decision
and Order."
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing , within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT refuse to bargain collectively with
Textile Workers Union of America, AFL-CIO, as the
exclusive representative of the employees in the
bargaining unit described below.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their right to self organization, to form, join, or assist
any labor organization, to bargain collectively through
representatives of their own choosing and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any and all such activities.
WE WILL bargain collectively, upon request, with this
union as the exclusive representative of all our
employees in the bargaining unit described below with
respect to rates of pay, wages , hours of employment,
and other terms and conditions of employment, and if
an understanding is reached embody such understanding
in a signed agreement.
The bargaining unit is:
All employees at our Dayton, Tennessee, operations
excluding office clerical employees, methods and
standards employees, professional employees, guards
and supervisors as defined in the Act.
Dated By
KAYSER-ROTH HOSIERY
COMPANY, INC.
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 730 Peachtree
Street, NE., Atlanta, Georgia 30308, Telephone
404-526-5760.