Senorita Hosiery Mills, Inc.

National Labor Relations Board - Board DecisionsMay 14, 1956

115 N.L.R.B. 1304 (N.L.R.B. 1956)

1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Clerical employees : The following categories of clerical employees were in dispute : warehouse clerk (Billings) works full time in the warehouse, checking materials and acting generally as leadman under the foreman's supervision; plant clerk (Hadley) keeps production rec- ords, follows and expedites production schedules, and works primarily in the plant; plant clerk (Huskey) works in the die department, and keeps records of formulas and schedules; supply clerk (J. Travis) keeps records of maintenance supplies; waste clerk (B. Travis) keeps records of all waste materials in various departments. These cleri- cals work in the plant under the supervision of production foremen, in close contact with production workers, with whom they share the same facilities and benefits. Although they are carried on the office payroll for bookkeeping purposes, the record indicates they are clearly plant clericals, and in accordance with established Board policy, they are included in a production and maintenance unit. Time-study men: There are two time-study men who work in various departments, making time studies on production operations and proc- esses which are used by management to determine costs and efficiency of operation. They work under the supervision of a time-study engineer. We find that as time-study men have interests which are dif- ferent from those of the production workers, we shall exclude them' The following employees of the Employer constitute a unit ap- propriate for the purposes of collective bargaining within the mean- ing of Section 9 (b) of the Act : All production and maintenance employees at the Employer's Cov- ington, Tennessee, plant, including yarn-testing employees and plant clerical employees, but excluding time-study men, office clerical em- ployees, professional employees, guards, watchmen,' and all super- visors as defined in the Act. [Text of Direction of Election omitted from publication.] 9 The Firestone Tire & Rubber Company, 112 NLRB 571, 572. s The evidence indicates the watchmen work at niglic making rounds and punching clocks, watching for fires, and closing and opening gates. We therefore find that they are guards engaged in protecting the Employer's property ; accordingly, they are there- fore excluded from the unit. Senorita Hosiery Mills, Inc. and United Packinghouse Workers of America , AFL-CIO: Case No. 24-CA-655. May 14,1956 DECISION AND ORDER On January 13, 1956, Trial Examiner A. Norman Somers issued his Intermediate Report in the above-entitled proceeding, finding that T As the AFL and CIO merged after the hearing in this case , we are taking notice of the merger and amending the designation of the Charging Party accordingly. 115 NLRB No. 212. i I SENORITA HOSIERY MILLS, INC. 1305 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 In- termediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices and recommended that the complaint be dismissed with re- spect to such allegations. Thereafter, the Respondent filed excep- tions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case,2 and hereby adopts his findings, conclusions, and recommenda- tions with the modification noted below.' 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 Respondent, Senorita Hosiery Mills, Inc., Gurabo, Puerto Rico, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Failing and refusing to bargain in good faith with United Packinghouse Workers of America, AFL -CIO, as the duly certified exclusive bargaining representative of its employees in the following unit : All production and maintenance employees, including knitters, knitters' helpers, knitters' learners, seamers, board examiners, flat examiners , menders, manicurist and foreladies' helpers, and utility men at the Employer's Gurabo, Puerto Rico, plant, but excluding fixers, floorladies, office clerical employees, watchmen, guards, and supervisors as defined in the Act. (b) In any like or related manner interfering with the rights of em- ployees guaranteed by Section 7 of the Act. 8 Although General Counsel 's Exhibits Nos 8 and 8 -Translation bear the notation that they were received in evidence , the transcript of record fails to disclose such a ruling by the Trial Examiner . However, as it appears that the General Counsel intended to offer these documents in evidence and the parties treated them as having been admitted , we also consider the documents as part of the record. 8 We agree with the Trial Examiner that the evidence relating to the negotiations that took place outside the 6-month limitation period prescribed in Section 10 (b) of the Act is admissible as background and to give meaning to the later occurrences . However, we note that the original charge upon which this proceeding is based was filed on January 14, 1955, and was served on the Respondent on January 17, 1955. As Section 10 (b) pro- hibits the Board from predicating an unfair labor practice finding on conduct occurring more than 6 months prior to the filing and service of a charge, we find, contrary to the Trial Examiner , that the initial date of the Respondent 's unlawful refusal to bargain is at least August 25, 1954, the date of the first meeting within the 6 -month period. 1306 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD - 2. Take the following affirmative action which .the Board finds will effectuate the policies of the Act : (a) Upon request bargain collectively in good faith with said, Union in respect to grievances, labor disputes, rates of pay, wages, hours of employment, and other conditions of work, and, if any agree- ment is reached, embody it in a signed contract. (b) Post at its plant in Gurabo, Puerto Rico, copies of the notice attached to the Intermediate Report marked "Appendix." 4 Copies of said notice, to be furnished by the Regional Director for the Twenty- fourth Region, shall, after being duly signed by the Respondent's rep- resentative, be posted by it immediately upon receipt thereof and main- tained by it 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 ma- terial. (c) Notify the Regional Director for the Twenty-fourth Region in writing, within ten (10) days from the date of this Order, as to what steps it has taken to comply herewith. IT IS FURTHER ORDERED that the portion of the complaint alleging that the Respondent made coercive statements to employees, in viola- tion of Section 8 (a) (1) of the Act, be, and it hereby is, dismissed. 4 This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner" in the caption thereof, the words "A Decision and Order" The notice shall be further amended by describing the Union 's affiliation as "AFL-CIO" instead of "CIO." In the event that this Order is enforced by a 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 AND RECOMMENDED ORDER THE ISSUES - This case concerns primarily the question of whether Respondent (Senorita Ho- siery Mills, Inc.), as alleged in the complaint , failed to bargain in good faith with the Charging Union ( United Packinghouse Workers of America, CIO), as representative of its employees ; secondary questions are whether Respondent also improperly w;thheld from the Union records and data relevant to the negotiations,- and made coercive statements to its employees.' All else is conceded : The Board's jurisdiction over Respondent , statute or policy- wise, is not in contest . (Respondent operates a hosiery mill in Gurabo, Puerto Rico, at which it annually ships about $350,000 of its product out of the island.) Not disputed also is the Union's status as exclusive bargaining representative of the em= ployees. (The Union was certified by the Board on March 15, 1954, after an election in a unit of Respondent 's production and maintenance employees.) And there is no question of procedural regularity.2 This brings us to the merits, the findings on which are based the record and the observation of the witnesses. i An additional allegation , that Respondent invoked an invalid rule prohibiting union discussion on its premises at all times, including nonworking periods, was withdrawn by, the General Counsel at the hearing, •a The issues were presented before the Trial Examiner at a hearing in Santurce, Puerto, Rico, on September 20, 21, and 23 , 1955, under the procedure of the National Labor Rela-, tions Act, following the conventional preliminaries of charges , a complaint, and an answer. All parties appeared and were allowed full participation . Respective counsel SENORITA HOSIERY MILLS, INC. 1307 FINDINGS OF FACT . 1. THE UNFAIR LABOR PRACTICES A. Failure and refusal to bargain in good faith 1. The five meetings in sequence What happened (all in 1954) would seem to bear brief telling: The Union on May 24 sent Respondent a proposed contract.' Representatives of both parties met, on June 24 and July 8 at Respondent's office, and at a Government conciliator's office on August 25. After this, in September, the Union filed a charge, which it withdrew upon discovering that the proposed contract had been submitted inadvertently in the name of a local of the Union which did not exist. It then sent Respondent an- other proposed contract, which read like the first, but this time correctly named the Union. The parties met twice again, on November 17 in Respondent's office, and December 17 before a conciliator, and with the same results. The Union then, in 1955, filed the charges on which the complaint in this proceeding was issued .3 2. The negotiations There is no real dispute concerning the material events in this case; There are some variances between the versions of the union representatives and of Respondent's sole spokesman and witness, Justo Pastor Rivera, which Respondent has under- taken to magnify as basic differences .4 There is no such difference. Concerning the following, at least, there is hardly any dispute: The contract submitted by the Union 5 was, in the original Spanish, about 10 legal size pages in length . It contained the "usual subject matter " 6 of a trade union agree- ment, including a preamble and statement of purpose and 13 clauses or "articles" numbered as and containing the headings of: (I) Recognition of the Union; (II) union shop; (III) work and hourly schedule; (IV) complaint and grievance commit- tee; (V) holidays (providing for 8-paid holidays in the year, with double pay for work during them); (VI) seniority (providing for seniority as the basis for promotion, for the General Counsel and Respondent argued orally and submitted briefs, which have been duly considered Respondent has made a motion to dismiss the complaint, which is here disposed of in accordance with the determination of the issues. s The original charge was filed January 14, and a first amended charge June 24, 1955. The 2 are alike , except that the 1 of January alleges Respondent refused to bargain "since on or about November 17, 1954" and that of June alleges, as does the complaint, that the refusal occurred "since on or about July 8 , 1954 " Respondent has renewed its mo- tion, denied at the hearing , to strike all evidence relating to negotiations before the November 17 meeting , as barred by the 6-month proviso of Section 10 (b). The denial of the motion is reafflinied . N. L. R. B . v Samuel Kobritz, 193 F. 2d 8, 15-16 (C. A. 1). N. L. R. B. v. New Hyden Coal Company, 228 F. 2d 68 (C. A 6), and cases cited. Re- spondent also moves to strike all evidence of occurrences preceding the withdrawal of the charge of September 1954, because any "cause of action" thereon was thereby abol- ished. This too is denied . It is additionally noted that since the negotiations involved a continuous transaction , even if, contrary to my holding, the occurences preceding the cutoff dates urged by Respondent were not in themselves cognizable as unfair labor prac- tices, they would nevertheless be competent as evidence in the Interpretation of the occur- rences thereafter . N. L. R. B. v. National Shoes, Inc., and National Syracuse Corp., 208 F. 2d 688, 692 (C A. 2) ; Singer Mfg. Co. v. N. L. R. B , 119 F. 2d 131, 134 (C. A. 7), cert. denied 313 U. S. 595 • All witnesses , whether for the Union or Respondent , were called by the General Coun- sel ; Rivera , however, as an adverse witness. LeRoy Borden, plant superintendent, who attended all meetings with Rivera and was present throughout the hearing , never was called to testify. Giving the Union 's side of the story was Sergio Kuilan Baez, its or- ganizer, who was its prime spokesman throughout all five meetings.. Corroborating him were Gamaliel Alicea, an employee , who attended all meetings beginning with the one, of July 8, and who, it was stipulated, would testify as did Kuilan concerning them, and George C Aguilera , director of the Union in Puerto Rico, who attended the meeting of November 17, and added 'his version to that of Kuilan concerning what happened there. 5 Because of their virtual identity, the drafts submitted by the Union on May 24 and September 13, respectively , will be treated as a single proposed contract . The particular draft used in referring to the numbers of the various aiticles is the earlier one. 6N. L. R. B. v Century Cement Mfg. Co, Inc., 208 F. 2d 84, 85 (C. A. 2). in 1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I retention , and recall after layoff , and describing in detail the manner in which seniority is to be determined among employees ); (VII) union security [ providing for checkoff of dues]; (VIII) vacations (prescribing vacations with pay, the length varying with time of service ); (IX) salaries , working hours and overtime (providing for such pay rates as the "parties mutually agree"; a workweek of 40 hours and workday of 8 hours with time and a half in excess of each and "equitable distribution of overtime"; a rest period of 15 minutes a day; and protection against loss of pay to an employee who reports without adequate advance notice that there is no work for him, or is subjected to a waiting period for which he is blameless, as where there is a breakage or lack of materials); (X) safety and health (providing for mutual cooperation be- tween Union and management for adequate measures to protect the safety and health of the employees); (XI) general provisions (in the form of a saving clause if any provision should be held invalid); (XII) life insurance and health plan; and (XIII) a duration clause. After indicating to the Union at the first meeting on June 24, that this agreement, in Rivera's words, "was not one generally adaptable to an industry of our kind," at the next meeting on July 8, he submitted to the Union Respondent's conception of an agreement which met that requirement. It consisted of 1i pages of letterhead size, and contained a preamble providing for recognition of the Union and 5 clauses as follows: (1) An agreement that the employees will be "free" to join the Union or not, as an adjunct to an open-shop clause; (2) an agreement that for the duration of the contract there will be no strike or lockout; (3) provision for the discharge of any employees violating the agreement; (4) provision voiding the agreement if the Union should lose an employee election; and (5) a duration clause. This is as near as the parties ever got. Attempts by the Union at the meeting of July 8 and, later of November 17 and by Government conciliators on August 25 and December 17, to get Respondent to broaden the base of the negotiations by combining both proposals for discussion so as to include other subject matter, such as grievances, seniority, work- ing schedules , overtime , etc., met without success. Rivera , maintaining that his counterproposal exhausted the subject matter required for an agreement in "our industry," insisted that discussion proceed within the framework of the counter- proposal. He invited, however, "suggestions and amendments," and each of the four meetings beginning July 8 ended on just that basis . Rivera's description of the final rupture on December 17 was that "the union leaders . . . repeated their opinion of the contract [ Respondent's counterproposal ] as being useless , no contract at all, and so forth and they pounded the table and walked out of the room. The personal acrimony I will not repeat." It matters little whether Rivera made short shrift of the union representatives, as they testified and as the record makes fairly persuasive that he did,7 or whether Rivera stated to the Union the reasons for his rejection of the various provisions with the same fulsomeness as at the hearing. Either version leads to the same ultimate con- clusion . In essence , Rivera's rationalization of his rejection of the union proposals can be expressed in terms of the following categories of provisions: (a) Matters which the law required anyway: As to provisions in that category, Rivera's position was that as long as Respondent was complying with the law, there was neither the need nor the requirement to incorporate them into a contract. That was the reason he assigned for rejecting the paid holidays provision (V) and also the provision for overtime (IX). The overtime provision was part of a long clause or article , which , apart from the legal time and a half rate , described the stage at which overtime began to accrue , and included other employee protective provisions previously abstracted. After stating he saw no need to "introduce ... into the con- tract" that which the law provided, he testified: Q. The paragraph deals generally with the manner in which overtime is to be paid, and the rate of overtime pay, and you say that you feel that since the law took care of that you saw no need of making a special provision? A. No, because we are complying with the law, according to the investigator from the Wage and Hour Division. (b) Matters which the law did not require: This category included, among others, the same paid holiday provision as in the previous category. This Trial Examiner does not presume to know how the above found its way into two contradictory categories . He only knows when it did. Rivera was called by the General Counsel as an adverse witness . Questioned by him in the morning of the first day 's hearing, 7 Rivera's own description of the final meeting, as recited in an affidavit signed by him in February.1955, indicates he cut the session short with an insistence on his oan counter- proposal. SENORITA HOSIERY MILLS, INC. 1309 Rivera gave as the reason for rejecting the holiday provision that since the law re- quired it, "we didn 't see any reason why that should be incorporated in the contract." Rivera gave the same reason in the affidavit ( supra , footnote 7) executed by him 7 months earlier , in February 1955 . Following the luncheon recess, on examination by company counsel , his reason was not that the law required it but that it did not so require . He testified that his industry, being a new one, was specially exempted under insular law from the holiday requirement , with the "consequence" that "we do not have to pay [holiday] overtime. That is by law." The other monetary items ' in the above category are the paid vacations (VIII) and the welfare provisions ( XII). The Union received the impression that as to these and the holiday articles, Respondent pleaded inability to pay. Accordingly, the Union , in September , made a written request of Respondent for payroll and wage data and also data concerning the Company 's financial position . But according to Rivera, financial considerations had nothing to do with Respondent 's rejection of these provisions . As he put it , his point was that the industry , being new in Puerto Rico, "needed to be nursed along," or as he put it in his earlier affidavit , "has not yet been consolidated ." That , according to his February affidavit, was his reason for rejecting the vacation and welfare clauses. (The reason given in the affidavit for rejecting the holiday provision was, as previously noted, that the law required it anyway.) At the hearing the "nursed along" and "not yet been consolidated " rationale of rejection was applied only to the welfare clause. But whatever the clause to which applied, Rivera stoutly denied the expressions intended to convey "the Company could not afford it." At any rate, whatever their meaning, as of the time of the hearing, he made them ap- plicable only to the welfare provisions . As to vacations, the reason for rejection given by him during the hearing was Respondent's concern for the employees: Under the Company 's incentive plan, Rivera testified, they could earn more than the legal minimum, and it was thus "more generous and humane" that they be permitted to earn this extra money rather "than just handing two weeks pay to them" at the min- imum rate . In the same breath , Rivera insisted he "did not imply that anybody should be denied two weeks' vacation," or that he "considered vacations as a strictly money proposition and nothing else." As to the other proposals not required under the law, which entailed no financial commitment on the part of the Company: Union shop ( article 77) : The union representatives testified Rivera said nothing about the union -shop clause until the meeting of November 17, when he complained about the fact that it also contained a clause preferring union members on hiring. They told Rivera all provisions were subject to discussion and modification and that the preference provision was inadvertently inserted. They also testified they struck the provision then and there. At the hearing, Rivera put his objections to the union- shop provision on a general ground which was this: because, as he asserted, a minority of the employees actually belonged to the Union, Respondent thought a union-shop provision would compel it to get rid of the bulk of its working force. He also objected to a specific portion of it-the preference as to hiring provi- sion-which he denied the Union offered to delete. To clarify the ambiguity inhering in Rivera's undulating from the basic to the specific, the Trial Examiner inquired whether the removal of the objectionable portion (referring to the prefer- ence as to hiring) would have made the provision otherwise acceptable. Rivera replied: I would have to see how it was worded and worked up, and if it was a satis- factory way of phrasing both in form and intention, then anything that we felt would be for the better conditions we would not object to. While, in the circumstances, it would seem unnecessary to determine whether the union representatives offered to delete the preference clause, it is fair to note that I believe they did. But the claim that they physically deleted it in Rivera's presence strikes me as overdramatizing it a bit. It should here be added that in the afternoon session, Rivera cited still another specific objection: He did not like the provision that the 31 days elapsing before an employee must join the Union need not be a continuous working period . If he intended to imply that he gave that reason to any one before he testified that afternoon , he is not credited. Complaint and grievance committee (article IV): The clause provided that com- plaints or grievances would be submitted to and considered by a committee of 4, 2 from management and 2 from the Union , and, in the event of disagreement, to a mutually acceptable 5th member for decision ; it also provided for wage reimburse- ment to any employee determined to have been wrongfully discharged . Rivera re- jected the provision on the ground that grievances had always been taken up by the employee individually with the plant superintendent and settled that way, and that the system had worked satisfactorily . On this, the versions of the Union and of 1310 DECISIONS OF NATIONAL LABOR " RELATIONS BOARD Rivera at the hearing and his earlier affidavit , concur . At the afternoon session, he testified, for the first time , he did not "have in mind that the Union should not par- ticipate in the adjustment of . . . individual grievances ." Asked why he did not incorporate into Respondent 's counterproposal its conception of a proper girevance procedure , his reply was that he saw no need of putting into a contract what Respondent was doing anyway. - Seniority ( article VI): This provision made seniority the basis for promotion, retention , and recall after layoff . It also detailed the manner in which an employee acquires seniority and in which relative seniority among employees, both plant and department , was determined . Rivera's objection to the seniority clause, as the union representatives recalled it , was that "the firm had invested a considerable sum of money in training the operators in the plant and that it would be questionable for the firm to establish the system proposed by that clause ." This made it rather hard to tell whether the objection was intended to be general or specific . Rivera 's affi- davit of February 1955 was not much clearer . He there stated the provision was "not applicable to the nylon hosiery industry , which is a new one in Puerto Rico." At the hearing he stated he objected to the provision specifically because it made seniority controlling without regard to ability . When he assured this Trial Examiner that he approved having seniority control if all other factors are equal, he was asked whether he ever proposed such a clause to the Union . To this he replied, "The very comments we made about the subject were in themselves suggestions." The union representatives testified Rivera never made any such suggestion and - that it was they who explained to him that however worded , the seniority clause was not intended to exclude such factors as ability , and that they even offered to make it explicit that seniority was not the controlling factor . There is enough in the record to persuade me that whether or not the Union came forward with such an offer, it would have had no effect on the Respondent 's action . In the circum- stances here considered , the failure to include any seniority provision in the counter- proposal would imply a rejection of seniority altogether , whatever might have been Rivera's position in words. Even in his testimony , Rivera continued the same ambivalence of language , which made it difficult to know just where he stood. After thus insisting that his objection to the seniority proposal was on the specific basis previously cited , on further examination by the General Counsel , he testified: 9. Is it not a fact that your position was that you did not feel that any seniority was applicable because the industry , the nylon hosiery industry, was a new one? A. I mentioned that too, that lower standards had been set in in our indus- try; there was no tradition. Q. You told them that you did not think any seniority system would be applicable? A. No, no. I didn 't go to that extreme. I, too , believe Rivera did not go to the "extreme " of being that explicit . Rather, as he reconstructs the picture , do I visualize him as maintaining a studied ambiguity which , taken in connection with his total omission of a seniority clause in his coun- terproposal, conveyed to the Union that he would have no part of any seniority clause. So here too it becomes unnecessary to decide whether the Union offered to modify its specific seniority proposal. Checkoff ( article VII): Rivera's reason for rejecting the checkoff was that dues collection was the Union 's problem , not Respondent 's. The Union quoted him as saying the Company "did not stick its hands into anybody 's pay envelopes" unless the law authorized it and that Rivera was silent to the Union 's response that if the employee authorized it, so did the law. rri.(c ) Conditions which were in effect anyway: The above constituted the third and last category of rejected provisions . Rivera's reason for rejecting such a pro- yision was the same as that assigned for not including provisions which he thought the, law required : They were "superfluous ." That , as previously noted , was the reason he gave for not incorporating in his counterproposal Respondent 's concep- tion^ofa proper grievance procedure . He gave the same reason for rejecting the safety^aridlhealth provision , to the substance of which he avowed he had no objec- tion whatever . But here, too, every statement of position would seem to have had its escape.exit ^He testified: -s, sze Q Inbother words, if I get your position correctly, you had safety and 5a1 'd ealth-vcbnditions that you felt were adequate , and there was no need for tad' fly cliiuselinithb contract? 10 bnr noirU 3rli 10 SENORITA HOSIERY MILLS, INC. 1311 A. We didn't say that last part you just recited. We just mentioned that we already had such measures of safety and medical aid, and toilets, and so forth, and that we kept the surroundings of the mill clean , to avoid fire. Q. You, or rather the company and the union, would both cooperate in the maintenance of these conditions? A. There would not be any objection to that. Q. Did you tell the union? A. Yes. Q. Did they indicate they were willing? A. One thing is including and another thing is admitting if it is a good idea, which we are already doing. An attempt by the Trial Examiner to obtain clarification elicited the same kind of response: TRIAL EXAMINER: What do you mean by "that," it is one thing to include it in the contract and another thing to admit it is a good idea? WITNESS: What I meant was this: If the contract is going to include ob- jectionable clauses, or unnecessary or superfluous clauses, then it is not nec- essary to do those things which we are already doing and which are good. TRIAL EXAMINER: I see. WITNESS: It is a good idea, a good plan, but if it is included with other unnecessary and superfluous things. .. . TRIAL EXAMINER: Did you have any objection to having the proposed Article X incorporated in a contract, assuming all other things were satisfac- tory? Did you have any objection to this being in the contract? WITNESS: No. We so implied to the gentlemen of the union in our con- versations with them. It is rather difficult to reconcile the last answer with what preceded, and Rivera never explained just how he "implied" the apparent contrary to what he previously asserted. At all events, the omission of any reference to safety and health meas- ures in Respondent's counterproposal would suggest to me that he never implied or intended to imply that he would broaden the coverage of the contract beyond the subject matter in his counterproposal. Confirming me in the above conclusion is the fate of the provisions dealing with the working schedule. These are embraced in articles III and IX. Article III provided that "the work schedule will begin and end at the usual hours," followed by a provision that future changes would be by mutual assent. Rivera said he ob- jected to the first because it was "vague" and to the second because it encroached upon management prerogatives. At the same time, he pointed out that the Com- pany's present shifts were put into effect "with the approval and acquiescence of the workers." - Article IX prescribed the work period prior to accrual of over- time, namely, a 40-hour week with an 8-hour day, which Rivera admitted to be in effect in Respondent's plant. It also provided that "the regular work will begin at the beginning of each shift on Monday and will last until Friday." This last, to which no objection was stated in the morning's testimony, during the afternoon interrogation by company counsel, was attacked as an interference with Respond- ent's three-shift system. Just how I have been unable to follow. I rather thought the Union's proposal simply took the present work schedule, shifts and all, as it found it, but, in rather crude phraseology, was seeking the right to be consulted prior to change, and to have the outer limits of the 5-day workweek prior to ac- crual of overtime defined. At all events, Respondent did not explain its failure to include within its counterproposal its own conception of the proper work schedule or workweek. - The proposed contract under article IX also provided for a 15-minute rest period. This, said Rivera, was rejected because under Respondent's system of operation, the employee did not have to be at his machine constantly, so that the total rest he acquires thereby aggregates more than 15 minutes. Rivera also gave his opinion of the preamble and statement of purpose. In the morning session, he said he accepted it "in principle." In the afternoon, that too became vulnerable. The preamble contained in its statement of purpose a ref- erence to the "quantity and quality of manufactured products." It being called to Rivera's attention by company counsel that in the original Spanish version the last two words appear as "productos elaborados," Rivera testified his Company "manufactures"; it does not "elaborate." Asked whether this hindered negotia- tions, Rivera replied "not specifically," but "it gave us the impression that this was 1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a contract not prepared by people familiar with the industry ." This last is concluded to be an afterthought. 3. Concluding findings as to good-faith bargaining Respondent 's actions and the various positions it took would seem to indicate rather persuasively an absence of good faith on its part in the negotiations. It has long been established, for instance, that it is no excuse for refusing to incorporate into a contract matters otherwise acceptable, on the ground that they merely express what the law requires. Singer Mfg. Co. v. N. L. R. B., 119 F. 2d 131, 138 (C. A. 7), cert. denied 313 U. S. 595; N. L. R: B. v. Union Mfg. Co., 200 F. 2d 656, 659 (C. A. 5); or on the ground that they merely reflect what the employer is already doing. Globe Cotton Mills v. N. L. R. B., 103 F. 2d 91 (C. A. 5); Singer Mfg. Co. v. N. L. R. B., supra, 139. 'Through its conscientious present counsel, who had no part in the negotiations, Respondent pictures the Union as the real offender on the matter of good faith in that it was the Union, as it claims, which insisted on the letter of its proposals without discussing Respondent's counterproposals or modifying its own proposals. The contention is not supported factually, for the record as a whole supports the union representatives' testimony, here credited, that they told Rivera all their pro- posals were subject to discussion and modification. It is difficult to read any other purpose in their submission of the matter twice to conciliation. Respondent says the Union's refusal to "discuss" the counterproposal was in itself evidence of the Union's bad faith. But there was no refusal to discuss if in combination with the Union's proposals. The position, which Rivera several times attributed to them concerning the counterproposal in isolation-that it was "useless, no contract at all"-was mani- festly correct. The only obligation Respondent's proposal imposed was on the employees-to refrain from striking under penalty of discharge. It bound Respondent to not a single working term and condition, and the only thing to which Respondent committed itself was recognition of the Union, a rather singular departure from Rivera's professed aversion to putting in what the law "required" anyway. With all deference to Rivera's sober assertion at the hearing that he thought his proposal was a labor contract, common sense rather compels the conclusion that he neither thought so nor seriously expected the Union to accept it. The' situation lends itself to the pointed observation of the first circuit concerning a similar proposal in N. L. R. B. v. Reed & Prince Mfg. Co., 205 F. 2d 131, cert. denied 346'^U. S. 887 (at p. 139) : It is difficult to believe that the Company with a straight face and in good faith would have supposed that this proppsal had the slightest chance of ac- ceptance by a self-respecting union, or even that it might advance the negotia- tions by affording a basis of discussion; rather, it looks more like a stalling tactic by a party bent upon maintaining the pretense of bargaining. Respondent contends it was up to the Union to expand the counterproposal by making suggestions or proposing amendments. But the Union's suggestion to combine the two proposals for discussion would seem to have been a salutary step in that direction, and Rivera rejected it. Respondent further claims it was up to the Union to amend or modify its demands to conform to what might prove agree- able to Respondent. But this position is untenable on several bases- First, it would seem rather clear that Rivera did not and would not agree to a broader range of subjects than embraced in his counterproposal; second, good-faith bargaining con- templates something more from the employer than that it make its wishes a roving target for the Union's marksmanship. N. L. R. B. v. Montgomery Ward & Co., 133 F. 2d 676, 685, 687, 689 (C. A. 9); Majure Transport Co. v. N. L. R. B., 198 F. 2d 735, 739 (C. A. 5); third, even where the Union hit the bull's eye in the form of a clause (safety and health), to which Rivera admitted he had not the slightest objection, the Union fared no better. ("One thing is including and another thing is admitting it is a good idea, which we are already doing.") The sad, but inescapable, conclusion is that Respondent wanted no part of any contract with this Union, and all of its actions were pointed in the direction of pre- venting one. In this connection, another observation of the First Circuit in the same Reed & Prince case, is also in point: if an employer can find nothing whatever to agree to in an ordinary current day contract submitted to him, or in some of the Union's related union re- quests, and if an employer makes not a single serious proposal meeting the union at least partway, then the Board must be able to conclude that this is at SENORITA HOSIERY MILLS, INC. - 0 1313 least some evidence of bad faith, that is, of a desire not to reach an agree- ment with the union . [Emphasis supplied.] To similar effect see Majure Transport Co v. N. L. R. B., 198 F. 2d 735, 737-8 (C. A. 5); Singer Mfg. Co. v. N. L. R. B., supra, 139. The conclusion that this was so here strikes me as fairly compelling. I do not think for example that legally untenable as was Respondent's refusal to embody existing or legally required practice on the ground that it was "superfluous," that that was the true reason for such refusal. The motivation which would seem all too apparent from the record was to prevent any agreement which would enable the Union to emerge with some semblance of dignity. The calculated rejection of clause after clause involving no monetary detriment or managerial embarrassment to Respondent, and its rejection even of the innocuous preamble, which merely recited that the Union was jointly engaged with Respondent in the achievement of a desirable working relationship, is explain- able only on the basis of the Respondent's refusal to accept the Union in the role of an equal in the bargaining relationship. Cf. Singer Mfg. Co. v. N. L. R. B., supra, 139. The above is additionally discernible in the fact that a striking facet of Respondent's approach was its treatment of the Union not as legal spokesman of its employees but as an interloper. Illustrative was Rivera's testimony that he rejected, as an encroach- ment upon management prerogative, the Union's proposal to condition future changes in the work schedule upon mutual assent , at the same time stressing that the existing schedule was put into effect "with the approval and acquiescence of the workers." Assuming the provision was other than merely a crudely worded attempt to assure to the Union the right of-consultation prior to change, to deny the employees' spokesman the privilege of pi for "approval and acquiescence," which was given without demurrer to the employees, directly is in itself a derogation of the legal status of the spokes- man and evidence of bad-faith bargaining. See Singer Mfg. Co. v. N. L. R. B., 119 F. 2d 131, 136. Implementing Respondent's fixed purpose of excluding the Union from its counsel in the formulation of the terms and conditions of the job was, I fear, Rivera's singular strategy in the use of language. It is normally a means of exchanging views, so that both sides may generally know the area of agreement and seek to persuade each other and compose their differences. The Senate committee,8 in reporting on the bill, noted that "democratic collective bargaining means the exchange of ideas no less than the exchange of services, goods or money." With Rivera, it was somewhat dif- ferent. His duplicity of positions (as illustrated, for example, by his rejection of the holiday provision assertedly on the ground that it entailed what the law required, and later on the ground that the law did not require it), and the recurrent ambiguity be- tween word and action, already detailed, created difficulties in comprehension which I endeavored to clear up by questioning Rivera and, later on oral argument, company counsel. I have rather reluctantly come to realize that Rivera's ambivalences and duplicities were not fortuitous. The result was that Respondent's true as distinguished from its feigned sentiment on the contract as a whole and the individual clauses in particular never reliably came to light. To reject the contract out of hand as un- suited to the local hosiery industry was, in effect, to say that there is no room in that industry for a contract providing for wages, working conditions, overtime, seniority, a grievance procedure, and other items standard to the working relationship. Rivera was manifestly too knowledgable to have harbored such illusion in fact, what- ever his representations to that effect at the negotiations or at the hearing. And he rather compels noting that that kind of guile and artifice is plainly incompatible with a faithful discharge of the bargaining obligation. Unquestionably, the hosiery in- dustry is beset with special problems in Puerto Rico. Understandably, Respondent may honestly feel that some economic demands would be too onerous for it. But it is quite another thing to shut the door to frank disclosure and to the wholesome "give and take" process contemplated by the bargaining obligation. On the entire record, it is concluded that Respondent failed to make a genuine exploration of bases of agree- ment or an honest effort to compose the differences with the Union; accordingly, it failed to bargain in good faith as required by Section 8 (a) (5) of the Act. B Failure to supply payroll and financial data Reference was previously made to the fact that the Union made a written demand upon Respondent for certain payroll and wage information, as well as data concern- ing its financial position. This was In the form of two letters: the first, sent Sep- S. R. No. 573 on S. 1958, 74th Cong., 1st Sess. (1935), p. 5. 390609-56-vol. 115-84 1314 DECISIONS -OF NATIONAL LABOR RELATIONS- BOARD tember 13, at the same time that the Union submitted its second draft of contract, and the second on January 27, 1955. The September 13 letter requested "a detailed and complete statement of the financial operation of the firm, as well as the number of workers [men and women] you employ, and the minimum salary paid to each of them." The January 27 letter requested the same information, plus "the actual price at which the dozen of stockings you produce are sold in the market, as well as the number of dozen stocking produced by each of your employees during their eight (8) working hours." Respondent did not reply. The parties agreed that Respondent did not supply the financial data, but disagreed concerning whether it supplied the payroll and wage data. Each item will be treated separately: (1) Payroll and wage data: The union representatives swore they did not receive such data. Rivera, on the other hand, testified he gave the payroll and wage data to the union representatives at the November 17 meeting. He so stated in his affi- davit of February 1955 and again at the hearing. Asked whether he had a copy of the list, he stated he did not have it with him but could "produce it within half an hour's time." It was never produced, but I see no need for resolving this conflict. I have no doubt each witness testified according to his honest recollection. There would seem to be no question that whether Rivera supplied this data or not, as he testified, the Union does not have it, and presumably did not when it wrote Re- spondent on January 27, 1955. A proper response from the Company to the Union might well have avoided this confusion. At any rate, Respondent impliedly recognizes its obligation to supply such data to the Union. It is implicit also in the order to bargain. Assuming a good-faith effort to comply, with the bargaining order, all other matters, including that of the data in question, will automatically fall into place. (2) Financial data: The request for the financial data stemmed from the Union's understanding that the reason for Respondent's resistance to paid holidays and vaca- tions and a welfare plan was financial inability to bear the freight. Respondent frankly acknowledges it refused to supply the data, but asserts they were not relevant to the negotiations because the question of Respondent's financial ability never came up. As previously related, Respondent attributed its rejection of the holiday and va- cation provisions to other reasons; and, while it admittedly rejected the welfare pro- visions because the industry "needed to be nursed along," if Rivera is to be understood correctly, it was with some other kind of pabulum than money. The enigmatic character of Respondent's position on all issues makes it impossible to state whether the negotiations had reached the point where the matter of its financial ability was relevant to the negotiations. This can best be approached as if no bargaining what- ever has yet taken place, as indeed, in the real sense, none has. Just as the bargain- ing obligation, apart from any order, contemplates under Board interpretation , reason- able disclosure of the basis on which a plea of financial inability is predicated,9 so too would the same requirement inhere in any direction to this Respondent to bargain in good faith. As and when the bargaining issues crystallize, it will be time enough for the Union to make appropriate demand for data on which Respondent might rely to support any future plea of financial inability to comply with particular proposals. Invoking the counsel of restraint laid down by the Board in prior cases, I refrain from passing upon whether Respondent has unlawfully withheld such financial data. The Board recently stated: It would seem a sound principle of administration and judicature to avoid accumulating adverse findings, in doubtful situations, where to do so would not add to the obligation of the order which independently must issue ....lo C. Alleged coercive statements Gamaliel Alicea, employee representative who attended the negotiations , testi- fied that while the negotiations were in progress, the employees on each of the three shifts were addressed by their respective foremen, and told, in substance, the fol- lowing: that "the industry was not in a condition to sign any contract because it was a new industry in Puerto Rico, and was beginning to expand and had hopes s See N. L. R . B. v Jacobs Manufacturing Company, 196 F. 2d 680 ( C. A. 2) ; Truitt Manufacturing Co. 110 NLRB 856, set aside 224 F 2d 869 ( C. A. 4), cert. granted 350 U. S 922. 10 Cone Brothers Contracting Company, 114 NLRB 303, citing American Newspaper Publishers Assocnation v. N L R B., 193 F . 2d 782, 298-299 (C. A. 7) ; and Oak Flooring Company, Inc ., 111 NLRB 906. . SENORITA HOSIERY MILLS, INC. 1315 of becoming a bigger industry in Puerto Rico "; also that "if we insisted on the union the industry would have to leave Puerto Rico ." Alicea was corroborated by Benigno Lopez, another employee." Each of the three foremen denied making the state- ment . The credibility dispute need not be resolved . Under controlling authority, a distinction is made between a threat of punitive action by the employer and a mere prediction , of the economic consequences upon the industry of meeting union de- mands. The statement here is ambiguous at best , and, Respondent is accordingly entitled to the interpretation which exonerates rather than convicts . It is accord- ingly 'found that the statements were not violative of Section 8 (a) (1) of the Act. National Furniture Manufacturing Company, Inc., 106 NLRB 1300 , 1302; Chico- pee Manufacturing Company , 107 NLRB 106. II. THE REMEDY It will be recommended that Respondent , on request bargain in good faith with the Union . What is contemplated is implicit in the discussion under the concluding findings. It also contemplates that the Respondent, on request , supply the Union with pertinent payroll and wage data, and also, in the event of any future claim of financial inability to meet certain proposals , disclosure of the basis for, including data relied on or asserted to support , such claim , upon reasonable request therefor. CONCLUSIONS OF LAW 1. United Packinghouse Workers of America, CIO, is a labor organization within the meaning of the Act. 2. By virtue of a certification duly issued by the Board on March 15, 1954, said Union at all times since then, has been and is the exclusive collective-bargaining representative of all the Respondent's employees in the appropriate unit therein described. 3. By failing to bargain collectively with the Union in good faith , thereby also interfering with the statutory rights of its employees, Respondent at all times since July 8, 1954, has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) and (1), respectively, of the Act. 4. Said unfair labor practices affect commerce within the meaning of Section 2 '(6) and (7) of the Act. 5. Respondent did not make coercive utterances to its employees in violation of Section 8 (a) (1) of the Act, as alleged in the complaint. [Recommendations omitted from publication.] u Lopez's actual testimony was dispensed with on the basis of a stipulation that he would corroborate Alicea. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Re- lations Board , and in order to effectuate the policies of the Labor Management Re- lations Act, we hereby notify our employees that: WE WILL bargain in good faith with United Packinghouse Workers of Amer- ica, CIO , as the exclusive collective -bargaining representative of all employees in the unit below: All production and maintenance employees , including knitters , knitters' helpers, knitters' learners, seamers , board examiners, flat examiners, mend- ers, manicurist and foreladies ' helpers and utility men at the Employer's Gurabo , Puerto Rico , plant ; but excluding fixers, floorladies , office clerical employees, watchmen , guards, and supervisors , as defined in the Act. WE WILL , if an understanding is reached , embody it in a signed agreement. SENORITA HOSIERY MILLS, INC., Employer. Dated---------------- By----------------------------------------------(Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced , or covered by any other material.