Somerville Mills

National Labor Relations Board - Board Decisions

Aug 31, 1992

308 N.L.R.B. 425 (N.L.R.B. 1992)

425
308 NLRB No. 67
SOMERVILLE MILLS
1 The Respondent’s exceptions argue that the judge’s 8(a)(5) and
(1) finding, based on the change in production rate for sewing gus-
sets in cotton panties, is predicated on her erroneous inference that
the Respondent’s reason for the change was to reduce labor costs.
We find no merit in this exception because that inference, al-
though mentioned in her factual findings, was not critical to her
legal analysis. In her analysis, the judge rested the finding of a viola-
tion on the facts that a change in production rate is a mandatory sub-
ject of bargaining and that the Respondent had made the change
without giving the Union notice and an opportunity to bargain. We
agree with this analysis. The gravamen of the complaint is that the
Respondent made a unilateral change, not that it made the change
for any given reason. Concededly, the reason for a given decision
to make a change may be relevant to whether the decision is a man-
datory subject of bargaining. However, we conclude that a decision
to change the production rate is a mandatory subject irrespective of
the reason for the decision. Accordingly, the unilateral change in the
rate was unlawful under Sec. 8(a)(5).
2 All locations involved here are in Tennessee.
3 The process would begin in Jackson.
4 Young’s office was in South Hill and he had to travel 160 miles
round trip to East Memphis. Jackson would be much closer for him.
I. Appel Corporation d/b/a Somerville Mills and
Furniture Workers Division, Local Union 282
of the International Union of Electronic, Elec-
trical, Salaried, Machine and Furniture Work-
ers, AFL–CIO. Cases 26–CA–13485, 26–CA–
13532, and 26–CA–13654
August 31, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On October 22, 1990, Administrative Law Judge
Nancy M. Sherman issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions, as modified below, and to adopt her rec-
ommended Order as modified.
The judge found that the Respondent violated the
Act by insisting, for a period of a least 4 days, that
negotiations be held alternately in Jackson and East
Memphis, Tennessee,2 instead of continuing to hold
them only in East Memphis. As the judge found that
the Respondent’s proposed change of location was not
unreasonable, i.e., it accommodated legitimate interests
of both parties and was not offered as a means of
avoiding its bargaining obligation to the Union, we
shall dismiss the allegation that the Respondent’s in-
sistence constituted an unlawful refusal to bargain in
good faith with the Union.
The relevant facts are not in dispute. The Respond-
ent’s plant is in Somerville. After the Union was cer-
tified as the collective-bargaining representative of the
Somerville employees, the Union asked that bargaining
be held either at the Somerville plant or at the Union’s
office in Memphis. The Respondent suggested a ‘‘neu-
tral place’’ between Somerville and Memphis. The
Union agreed to the Respondent’s suggestion and the
first six negotiating sessions were held in East Mem-
phis (which is about 31 miles from the Somerville
plant). The Respondent then proposed that the parties
meet alternately in Jackson and East Memphis.3 It as-
serted that the difference in mileage between Somer-
ville and Jackson on the one hand and Somerville and
East Memphis on the other would be negligible to the
employees and would save considerable travel for the
Respondent’s vice president, Young, who attended
each session.4 The Union rejected this proposal stating,
inter alia, that ‘‘The difference in mileage on the em-
ployees may be negligible, but the psychological effect
that would result from such management dictation
would [undermine] and weaken the union’s strength
and effectiveness.’’ The Union suggested that all fur-
ther negotiations be held in Somerville. The Respond-
ent then modified its position by proposing alternating
negotiation sites among Jackson, Somerville, and East
Memphis. The Union rejected this proposal and stated
that it would be available to meet in East Memphis or
Somerville. The Respondent then altered its position
and said that it would be available to meet in East
Memphis for the next session. The Union accepted this
proposal and the parties met for negotiations in East
Memphis.
The judge found that the Respondent’s proposal for
a change in the location of bargaining was not unrea-
sonable. The proposal accommodated the Respondent’s
legitimate interest in reducing the travel distances for
Vice President Young and did not involve distances
that were so great as to be unreasonable. She further
found that the Respondent’s proposed site was not un-
duly burdensome to the Union. The judge found that
the proposal inconvenienced the Respondent’s attorney
and plant manager no less than the Union’s officers
and employees on the Union’s bargaining committee.
Nevertheless, the judge found that the Respondent’s
brief insistence on a change in location amounted to
violation of Section 8(a)(5) and (1). Her finding was
based on what she described as a rebuttable presump-
tion that parties are to meet at or near the place where
the unit employees work. In her view, this presumption
cannot be rebutted by a showing that proposals were
reasonable and advanced in subjective good faith.
The judge’s analysis is not supported by precedent.
Section 8(d) simply requires the parties ‘‘to meet at
reasonable times and to confer in good faith.’’ Al-
though the statute makes no express reference to rea-
sonable places, the Board with court approval has
found that a party’s proposal for a given location of
426 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 See, e.g., P. Lorillard Co., 16 NLRB 684, 696 (1939), enfd. as
modified 117 F.2d 921 (6th Cir. 1941), reversed and remanded with
instructions to enforce in full 314 U.S. 512 (1942), in which the
Board stated: ‘‘We believe further that the procedure of collective
bargaining requires that the employer make his representatives avail-
able for conferences at reasonable times and places and in such a
manner that personal negotiations are practicable.’’
6 See, e.g., P. Lorillard Co., supra (employer’s insistence that bar-
gaining take place in New York, New York, when the affected em-
ployees and union were located in Middletown, Ohio, found to im-
pose a ‘‘grave’’ burden on the union and in practical effect to permit
employer to avoid bargaining); Tower Books, 273 NLRB 671, 672
(1984) (employer’s failure to provide ‘‘overriding reason compelling
negotiations’’ at its proposed site located some 700 miles from the
affected employees and its intransigent insistence in refusing to con-
sider holding negotiations at the locale of the represented employees
found, when considering all the factors, to be a stratagem to delay
or avoid bargaining); and Clinton Food 4 Less, 288 NLRB 597,
602–603 (1988) (unlawful refusal to bargain found where employer’s
insistence on meeting at a location 78 miles from the location of the
represented employees placed onus and inconvenience of travel and
expenses completely on members of union negotiation committee for
financial convenience and physical comfort of its negotiator).
7 Burns Security Services, 300 NLRB 1143 (1990).
8 See Tower Books, supra, 273 NLRB at 672. In our view, the
judge has misread Tower Books. That case does not hold that the
insistence on a proposal of bargaining location other than that of the
bargaining unit will be unlawful unless the party advances an over-
riding reason for negotiations to take place in the proposed site. In-
stead, the employer’s failure to advance such a reason in Tower
Books was only a factor to be considered. Other factors were the
employer’s intransigence and its conditioning of bargaining by offer-
ing not to litigate the Union’s certification if the Union would agree
to meet in the location it proposed.
9 In contrast, in Tower Books, supra, the case principally relied on
by the judge, there was no such initial agreement on bargaining ses-
sions away from the plant.
10 Chairman Stephens agrees with his colleagues that the Respond-
ent’s conduct did not fall short of the duty ‘‘to meet at reasonable
times and confer in good faith’’ with the Union. Sec. (d). However,
he thinks that the judge’s statement of the rule—a party’s refusal to
agree to meet at or near the unit employees’ place of employment
is rebuttably presumed to be unlawful in absence of a ‘‘compelling
reason’’—is not so much unsupported by the Board’s precedents as
an unnecessary extension of the dicta appearing in some of the
cases.
It may well be that under the rule advanced by the judge the par-
ties’ bargaining would have gone more smoothly had they not been
distracted by the temporary dispute over the situs. But in the absence
of evidence that a party is engaged in bad-faith efforts to delay or
avoid bargaining, or financially burden the union, the Act, in Chair-
man Stephens’ view, allows some latitude in which the parties can
work out their differences on this subject. Cf. Burns Security Serv-
ices, supra. Nevertheless, the Board should be open to re-examining
this subject should further experience show a proliferation of dis-
putes over the situs of bargaining.
bargaining has a direct bearing on, and is a factor to
consider in, determining whether that party has met its
obligation to meet at reasonable times and confer in
good faith.5
In the cases cited by the judge, where the Board has
found that an employer’s insistence on a proposed lo-
cation for negotiations constituted an unlawful refusal
to bargain, there was a finding that the proposal placed
such a burden on the union as to warrant the inference
of a stratagem to delay or to avoid bargaining.6 When
no actual delay in negotiations has taken place, the
Board has nevertheless found an unlawful refusal to
bargain where there has been an overall effort, under-
taken in bad faith, to thwart the collective-bargaining
process by instransigently refusing to meet with the
Union in a reasonable place.7
Although the Board has often looked to the location
of the bargaining unit in evaluating whether the insist-
ence on a bargaining location is unlawful, the Board
has stated that it does not take a per se approach to
deciding where bargaining should take place and in-
stead considers all the relevant circumstances bearing
on the issue. Those circumstances include failure to
justify the reason for a proposed location, the intran-
sigence of a party’s insistence on a location, and
whether a party is acting in bad faith by making pro-
posals for the purpose of delaying or avoiding negotia-
tions.8
In sum, the determining factors in cases of this kind
are whether the proposed bargaining location is unrea-
sonable, burdensome, or designed to frustrate bargain-
ing, and whether the proponent has been intransigent
and in bad faith. None of these factors is present in the
instant case. The Respondent’s proposals were reason-
able and accommodated its expressed legitimate inter-
ests. The Respondent and the Union had initially
agreed to meet at a ‘‘neutral’’ site away from the Som-
erville plant, and did so on six occasions.9 The Re-
spondent’s proposed site did not involve distances
which greatly inconvenienced the Union or placed an
undue burden on it. Further, the Respondent was not
intransigent in this matter. When the Union rejected
the Respondent’s initial proposal to alternate meetings
between Jackson and East Memphis, the Respondent
modified its position by proposing to alternate meet-
ings among Jackson, East Memphis, and Somerville.
When the Union rejected this modified proposal, the
Respondent agreed to resume negotiations at East
Memphis, the site to which the parties originally
agreed. The Respondent persisted in attempting to
change the bargaining situs for only 4 days. Finally,
there is no evidence that the Respondent’s proposals
were made in bad faith or were part of any overall
scheme to delay or avoid bargaining.
For these reasons, we find that the General Counsel
did not establish that the Respondent violated Section
8(a)(5) and (1) by failing to met its obligation under
Section 8(d) to meet at reasonable times and to confer
in good faith.10
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, I.
Appel Corporation d/b/a Somerville Mills, Somerville,
427SOMERVILLE MILLS
Tennessee, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
‘‘(a) As to employees in the below-named bargain-
ing unit, imposing stricter standards for early disburse-
ment of paychecks, changing the production rate for
employees who sew gussets in cotton panties, or other-
wise changing rates of pay, wages, hours of employ-
ment, or any other terms and conditions of employ-
ment, without giving prior notice to and an opportunity
to bargain with Furniture Workers Division, Local
Union 282 of the International Union of Electronic,
Electrical, Salaried, Machine and Furniture Workers,
AFL–CIO:
‘‘All production, maintenance, and shipping em-
ployees at our Somerville, Tennessee, facility in-
cluding quality control inspectors, expeditors,
piece goods records clerk, and shipping clerks;
excluding office clericals, guards and supervisors
as defined in the Act.’’
2. Delete paragraph 1(b) and reletter the subsequent
paragraphs.
3. Delete paragraph 2(b) and reletter the subsequent
paragraphs.
4. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT with respect to the employees in the
following bargaining unit:
All production, maintenance, and shipping em-
ployees at our Somerville, Tenneesee, facility in-
cluding quality control inspectors, expeditors,
piece goods records clerk, and shipping clerks;
excluding office clericals, guards and supervisors
as defined in the Act.
impose stricter standards for early disbursement of
paychecks, change the production rate for employees
who sew gussets in cotton panties, or otherwise change
rates of pay, wages, hours of employment, or any other
terms and conditions of employment, without giving
prior notice to and an opportunity to bargain with Fur-
niture Workers Division, Local Union 282 of the Inter-
national Union of Electronic, Electrical, Salaried, Ma-
chine and Furniture Workers, AFL–CIO.
WE WILL NOT fail or refuse to honor Local 282’s re-
quest for our bargaining agreements at other locations,
Local 282’s October 18, 1989 request for information,
or any other request by Local 282 for relevant infor-
mation, necessary for the proper performance of Local
282’s duties as the bargaining representative of the
foregoing unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of your
rights under the Act.
WE WILL, on request by Local 282, return to the
production rate, for employees who sew gussets on
cotton panties, used before January 1990.
WE WILL honor Local 282’s request for our bargain-
ing agreements at other locations, and Local 282’s Oc-
tober 18, 1989 request for information.
WE WILL make employees whole, with interest, for
any losses they may have suffered by reason of our
unilateral change in production rates for sewing gus-
sets on cotton panties.
As to the early disbursement of paychecks, we have
already returned to the practice followed before our
unilateral change in that practice.
I. APPEL CORPORATION D/B/A SOMER-
VILLE MILLS
Jack Berger, Esq., for the General Counsel.
John P. Scruggs, Esq., of Memphis, Tennessee, for the Re-
spondent.
Ida Leachman, of Memphis, Tennessee, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge. These
consolidated cases were heard before me in Memphis, Ten-
nessee, on May 14 and 15, 1990, pursuant to a charge filed
by Furniture Workers Division, Local Union 282 of the
International Union of Electronic, Electrical, Salaried, Ma-
chine and Furniture Workers, AFL–CIO (the Union) against
Respondent I. Appel Corporation d/b/a Somerville Mills, in
Case 26–CA–13485, on October 17, 1989, and amended on
November 8, 1989; a complaint issued in that case on No-
vember 8, 1989; a charge filed by the Union against Re-
spondent in Case 26–CA–13532, on November 3, 1989, and
amended on December 6, 1989; a consolidated complaint in
these two cases issued on December 11, 1989; a charge filed
by the Union against Respondent in Case 26–CA–13654 on
January 18, 1990, and amended on March 2, 1990; and an
amended consolidated complaint in all three cases, issued on
March 6, 1990. The amended consolidated complaint alleges
that Respondent violated Section 8(a)(1) and (5) of the Na-
tional Labor Relations Act (the Act) by failing and refusing
to honor the Union’s request for certain information nec-
essary for, and relevant to, the Union’s performance of its
function as the exclusive collective-bargaining representative
of an appropriate unit of Respondent’s employees; by insist-
428 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Similarly, all of the next four sessions were held on weekdays
and began at 5:20 p.m. or later.
2 In fact, the difference is about 16 miles; Jackson is about 47
miles from the Somerville plant.
ing that continuing contract negotiations be moved to unrea-
sonable sites; and, without giving the Union prior notice and
an opportunity to bargain, by imposing stricter standards for
early disbursement of payroll checks and by changing the
production rate for employees who sew gussets.
On the basis of the entire record, including the demeanor
of the witnesses, and after considering the briefs filed by
counsel for the General Counsel (the General Counsel) and
Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation with an office and place of
business in Somerville, Tennessee, where Respondent manu-
factures ladies’ panties. During the year preceding the
issuance of each of the complaints, Respondent shipped di-
rectly to points outside Tennessee, and purchased and re-
ceived directly from points outside Tennessee, goods and
materials valued in excess of $50,000. I find that, as Re-
spondent admits, Respondent is engaged in commerce within
the meaning of the Act, and that assertion of jurisdiction
over Respondent’s operations will effectuate the policies of
the Act.
The Union is a labor organization within the meaning of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
On December 5, 1988, the Union was certified as the ex-
clusive bargaining representative of an admittedly appropriate
unit of Respondent’s employees, which unit is specifically
described in Conclusion of Law 3, infra, and which consists
basically of Respondent’s production, maintenance, and ship-
ping employees at its Somerville plant. The Union and Re-
spondent have been engaged in negotiations for a collective-
bargaining agreement with respect to that unit since February
28, 1989. Ten bargaining sessions were held between that
date and April 3, 1990. As of the close of the hearing before
me, on May 15, 1990, no complete collective-bargaining
agreement had been reached.
B. Respondent’s Alleged Unlawful Insistence that
Contract Negotiations Be Moved to Unreasonable Sites
After being certified, the Union asked that bargaining ses-
sions be held either at the plant in Somerville, Tennessee, or
at the union office in Memphis, Tennessee. Company Attor-
ney John P. Scruggs suggested a ‘‘neutral place’’ between
Somerville (which is southeast of Memphis) and Memphis.
The first six negotiating sessions, between February 28 and
October 4, 1989, were held at one of two motels in East
Memphis, about 31 miles from the Somerville plant, with the
parties taking turns at paying for these accommodations.
During these negotiations, Respondent was represented by
Attorney Scruggs, whose office is in Memphis, Tennessee;
by Somerville Plant Manager Joe Perritt, who lives in Som-
erville; and by Vice President Robert Young, whose office
is in Scotts Hill, Tennessee. The Union was represented by
President Willie Rudd and Vice President Ida Leachman,
both of whom have offices in Memphis, and by seven bar-
gaining unit employees who worked at the Somerville plant.
All of these sessions were held on weekdays, and all but one
(on August 1, when the parties met between 9:50 a.m. and
5 p.m.) began an hour or more after the 4 p.m. end of the
employees’ workday.1 Through the October 4 negotiations,
there had been no problems regarding the site, and there had
been no mention of changing it.
By letter dated October 12, 1989, Scruggs proposed Octo-
ber 24 or 25 as the date of the next negotiating session. He
also proposed that
[W]e negotiate in Jackson, TN, at the Ramada Inn
every other session. My map shows it is only seven
miles difference between Somerville and Jackson, and
Somerville and Memphis.2 The difference in mileage on
the employees would be negligible, and meeting in
Jackson would not require my client to drive 160 +
miles round-trip to attend negotiations. Of course, you
and Mr. Rudd would have to drive this distance to meet
in Jackson—but it seems fair enough to at least share
this inconvenience by meeting every other session in
Jackson.
Inferentially, Scruggs’ reference to ‘‘the client’’ was to Com-
pany Vice President Young, whose Scotts Hill office (about
60 miles east of Somerville) is about 30 miles southeast of
Jackson, which is about 65 miles northeast of East Memphis.
Scruggs’ October 12 letter was the first mention of changing
the location of negotiations.
By letter to Scruggs dated October 19, 1990, Rudd alleged
that Scruggs’ October 17 letter to Leachman was ‘‘of such
poor taste and bad faith, that I felt compelled to respond to
it.’’ Rudd stated that Scruggs’ proposal to move the negotia-
tions to Jackson is rejected for the following reasons:
1. It was the company’s idea to hold these negotia-
tions in Memphis, which the union was initially op-
posed to, and Jackson was never mentioned, nor the
amount of miles that your client had to travel.
2. The difference in mileage on the employees may
be negligible, but the psychological effect that would
result from such management dictation would [under-
mine] and weaken the union’s strength and effective-
ness.
. . . .
Since you claim that it is only seven miles difference
between Somerville and Jackson, Somerville and Mem-
phis, the difference in mileage for Mrs. Leachman, my-
self and your client would be negligible, but certainly
more convenient to your client and his employees, than
it is to us in terms of where the previous sessions have
been held.
The letter further stated that ‘‘[i]f the company’s concerns
are legitimate and in good faith, the union suggests that all
future negotiations be held in Somerville, Tennessee, at one
of the following locations.’’ The letter specified a number of
possible Somerville locations, including but not limited to
Respondent’s plant, and further stated, ‘‘Any other locations
429SOMERVILLE MILLS
3 All three of these Somerville sites had been suggested in the
Union’s October 19 letter.
4 This finding is based on a November 20, 1989 letter from
Scruggs to the Union, received in evidence on the General Counsel’s
motion, and without objection or limitation.
in Somerville that management suggests will be seriously
considered.’’
The parties did not meet on October 24 or 25. By letter
to Scruggs dated October 26, 1989, Leachman stated that the
Union was available to meet on November 2 and 3, and that
the Union’s October 19 letter had listed the meeting places
‘‘acceptable to the Union.’’ The parties did not meet on No-
vember 2 or 3. By letter to Leachman and Rudd dated No-
vember 2, 1989, which the Union received at 10:15 a.m. that
day by courier, Scruggs stated:
In an attempt to accommodate everyone’s wishes in this
matter, I propose we simply alternate negotiations sites.
I propose the next session be held at the Ramada Inn
in Jackson, TN, commencing at 5:00 p.m. on November
7 or November 8. The next session after that could be
held in Somerville, at the union’s choice of the Fayette
County School Board Conference Room, the Chamber
of Commerce or at Chickasaw Gas.3 Then we could
meet back at the LaQuinta in [East] Memphis [where
all but one of the previous sessions had been held].
By hand-delivered letter to Scruggs dated November 3,
1989, Rudd stated that the Union was available to meet on
November 7 at 5 p.m. ‘‘at the same location where all pre-
vious meetings have been held, or we will again agree to
meet in Somerville, which will [considerably] reduce the
traveling miles for management.’’ By hand-delivered letter to
Rudd and Leachman dated, and received by them, on No-
vember 6, 1989, Scruggs stated, inter alia:
Mr. Young is not available to travel to Memphis or
Somerville this week for negotiations . . . We would
be available to meet in Memphis on either November
14 or 16, commencing at 5:00 p.m.
The Union did not reply to this proposal.4 The parties did
not meet on November 7, 8, 14, or 16. On an undisclosed
date prior to November 20, the Union proposed a meeting
on November 21. By letter to Leachman dated November 20
and delivered by courier, Scruggs stated that he was unable
to meet on November 21 because ‘‘That is a short work
week due to the holiday, and one I have blocked out to pre-
pare for [an NLRB hearing in another case, scheduled to
start Monday of the following week. Consequently, I am un-
available until after [that] hearing concludes.’’ Scruggs’ letter
went on to propose a negotiating session at 5:15 p.m. on De-
cember 5 or 6 ‘‘at a site to be mutually agreed upon.’’
By letter to Scruggs dated November 22, 1989, Leachman
accepted Respondent’s proposal for a December 5 meeting at
5:15 p.m. and went on to say:
In order to minimize the company’s travel concerns,
the union will again be willing to meet in Somerville,
TN.
If the company is not serious about its alleged travel
concerns, the union will expect the meeting to be at the
LaQuinta Inn [the East Memphis motel where all but
one of the previous meetings had been held], or some
other hotel in that area.
Thereafter, Scruggs called the Union and canceled the De-
cember 5 meeting.
By letter to Perritt dated December 11, 1989, the Union
proposed a meeting at the plant on December 20, 1989, to
discuss certain issues (previously raised by the Union) whose
nature is not disclosed by the record but which apparently
did not at least directly involve contract negotiations. This
letter, received into evidence without objection or limitation,
states in part:
It was the Company’s position that you will discuss
these issues at the time the parties meet for negotia-
tions. However, the company has also [taken] the posi-
tion that it won’t meet for negotiations unless the union
agrees to meet in Jackson, Tennessee. The union will
not agree to meet in Jackson, thus no meeting has taken
place.
On December 12, 1989, the parties agreed to meet for ne-
gotiations on December 20 at the LaQuinta Inn in East Mem-
phis. That meeting was in fact held at that location. This was
the first meeting between the parties since October 4. The
parties met in another motel in East Memphis on January 24,
February 20, and April 3, 1990, the last day on which they
met prior to the hearing in mid-May.
At the hearing, Leachman testified that the distance be-
tween Somerville and East Memphis is less than 30 miles
one way (in fact, the distance is about 31 miles); that the dis-
tance between Somerville and Jackson is about 90 miles one
way (in fact, the distance is about 47 miles); and that as to
the employees in the bargaining committee, a Jackson bar-
gaining location would be unreasonable because it was too
far for them to drive and they might not know where a Jack-
son meeting site was.
C. Respondent’s Alleged Unlawful Unilateral Changes
1. Allegedly stricter standards for early disbursement
of payroll checks
a. Background
Ordinarily, Respondent’s employees receive their pay-
checks no earlier than 3:30 p.m. on Fridays, a half hour be-
fore the end of the workday. During a period which ended
no later than early 1989, an employee who wanted to receive
his paycheck early (because, for example, he intended to
leave early on Friday to attend a funeral) would direct his
request to Plant Manager Perritt or to the production man-
ager, and one of them would decide on an ad hoc basis
whether to grant or deny the request. About mid-1988 or
early 1989, requests for early paychecks began to be handled
by the line supervisors, who granted or denied such requests
on an ad hoc basis. No contention is made that this shift in
responsibility involved any unfair labor practice.
In October 1989, Respondent withdrew from its line super-
visors the power to grant (at least on their sole volition) em-
ployees’ requests for early paychecks, and imposed the re-
quirement (or, perhaps, the additional requirement) that such
requests had to be approved by Perritt or the production
manager. Respondent did not notify or negotiate with the
430 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 This finding is based on Leachman’s testimony and on credible
parts of Perritt’s testimony. Initially, he testified that he told her that
Young had changed the procedure of giving out checks early, and
that Perritt could not give them out early. Later, he testified that he
told her Young had decided not to give the checks out without prior
approval by the supervisor before 3:30 p.m. Then, Perritt gave the
following testimony:
Q. [By the General Counsel] Is that what you told her? I
thought you told her earlier—you said earlier that Bob Young
made a decision that no checks would be given out before 3:30.
A. Well I’m not sure.
Q. Quite possible though that’s what you told her, right?
A. You know, I don’t have any copies of my conversations
with her, you know, I don’t want to tell a lie what—exactly
what she said because I’m not sure.
Because Perritt was admittedly uncertain about what he told her, and
he admittedly was given by Young the instructions which during the
Perritt-Leachman conversation Perritt attributed to Young according
to Leachman’s testimony, as to the Perritt-Leachman conversation I
credit her to the extent that her testimony may conflict with Perritt’s.
6 In view of this remark by Leachman, I am inclined to discredit
Perritt’s account of his conversation with her earlier that day, to the
extent that this account may suggest that he explained to her the in-
cident which had led to Young’s order. However, this issue is imma-
terial.
Union about this change. Also in October 1989, Respondent
posted the following notice:
Payroll checks will not be given out before 3:30 p.m.,
on Friday unless prior arrangements have been made
and approved by Supervision.
Leachman testified that the Union did not regard this notice
as a problem ‘‘As it’s written.’’ No contention is made that
this shift in responsibility, or the posting of this notice, in-
volved any unfair labor practice.
b. The alleged unlawful unilateral change
On a Friday subsequent to the posting of this notice, and
probably on October 27, so many employees had left the
plant early after receiving early paychecks that management
had difficulty in shipping out orders to an important cus-
tomer. When Company Vice President Young learned of the
reasons for this problem, he told Perritt not to give out pay-
checks before 3:30 p.m.
On a Wednesday which (inferentially) was the Wednesday
following this Perritt-Young conversation, unit employee
Tracy Mitchell made arrangements with her supervisor to re-
ceive her paycheck early on Friday, because she expected to
leave early that Friday in order to attend a funeral. When she
requested her paycheck at the agreed-upon hour on Friday,
the supervisor refused to give it to her. Mitchell complained
about this incident to Leachman. Two other employees had
similar experiences, although the record fails to show the
dates or whether Leachman’s knowledge of such incidents
was related to any complaints they may have made to the
Union.
On November 2 or 3, Leachman telephoned Perritt and
asked him why Respondent had discontinued the policy of
permitting employees to get their checks early. He told her
that Young had told him that he could not give them out
until 3:30 p.m. on Friday.5 Leachman thereupon telephoned
Young, who said that he had directed Perritt not to issue any
more checks because they had experienced absenteeism.
Leachman asked him what absenteeism had to do with the
change in the policy.6 Young said that he would call Perritt
to see about it, and would then get back in touch with
Leachman. Young never did get back in touch with
Leachman about the matter. Respondent did not notify or ne-
gotiate with the Union before this change was made.
c. Aftermath
At the time of the May 1990 hearing, Respondent was
again following the practice of entertaining requests for early
paychecks. The employee was supposed to direct such a re-
quest to his immediate supervisor. If that supervisor did not
think the request was warranted, he was supposed to so ad-
vise the employee, but to nevertheless check with Perritt or
the production manager, one of whom made the final deci-
sion. The record fails to show when this change was ef-
fected. No contention is made that any unfair labor practice
was involved in this change with respect to the newly adopt-
ed practice which the Union found out about around early
November 1989.
2. Alleged change in production rate for sewing
gussets in cotton panties
Paragraph 14(b) of the second amended consolidated com-
plaint issued on March 6, 1990, alleges that ‘‘On or about
January 3, 1990, Respondent changed its production rate for
its employees who sew [gussets].’’ This allegation was ad-
mitted in paragraph 14(b) of Respondent’s answer dated
March 9, 1990. On May 14, 1990, the first day of the hear-
ing, I granted Respondent’s motion for leave to amend this
portion of its answer to read as follows:
The Respondent admits that on or about January 3,
1990, it implemented production of a new product, and
a production standard for that product, which standard
differed from the production standard applied to the
product which immediately preceded introduction of the
new product. All other allegations of paragraph 14(b) of
the Second Amended Consolidated Complaint are de-
nied.
Many (and, perhaps, all) cotton panties manufactured by
Respondent have a gusset consisting of two bilaterally sym-
metrical pieces of cloth which are exactly alike and which,
in the completed garment, form a double layer of cloth in
the crotch area. Respondent prescribes the order in which the
gusset sewer must perform the elements of each gusset-sew-
ing job. Before January 1989, the work layout for a gusset
sewer on cotton panties included two stacks of gusset pieces.
The gusset sewer would pick up a gusset piece from one
stack, lay it on the serger (a kind of sewing machine), posi-
tion it to the needle, pick up a panties’ back, lay it on top
of the gusset piece, position the panties’ back, pick up a gus-
set piece from the other stack, lay it on top of the panties
back, and sew all three layers together with one seam. Then,
she would reposition the three-piece assemblage, line it up
with the needle, pick up a panties’ front, lay it on top of both
gusset pieces, sew the front to the two-layer free end of the
two-layer gusset with one seam, cut the thread, and ‘‘dis-
pose’’ the four-piece assemblage to her lap or to a table.
431SOMERVILLE MILLS
7 This is a document which is used in all of Respondent’s plants
and, according to Perritt, is widely used in the industry.
8 Although the old-method panties received in evidence have a
smaller hip size than the new-method panties received in evidence,
the critical gusset seams are about the same length, and neither GSD
analysis refers to the size of the panties.
9 Cf. the text attached to fn. 11, infra.
10 This figure is based on the number of TMUs listed in each anal-
ysis for the operations which precede the sewing of the first com-
plete seam. Although the new method eliminates the allowance for
‘‘Obtain top gusset match to back’’ (69 TMUs), it adds an allowance
for ‘‘Sew pre-stitch’’ (17 TMUs).
11 Cf. the text attached to fn. 9, supra.
This production process leads to a garment in which the
seam which connects the gusset with the back of the panties
is wholly concealed, and the seam which connects the gusset
with the front is ‘‘open’’—that is, the serge stitches protrude,
and are visible, from the side of the panties which will touch
the skin.
In November and December 1989, Respondent’s plant en-
gineer did tests on an new method of sewing gussets in cot-
ton panties. Then, a timestudy was performed on the gusset-
sewing operation using the new method. Under the new
method, the work layout for a gusset sewer includes only one
stack of gusset pieces. The gusset sewer picks up (secures)
a panties’ back, positions it to the needle, picks up two gus-
sets, lays them on top of the back, and sews all three layers
together with one seam. Then, she repositions the three-piece
assemblage, lays it out smooth, positions it, picks up a pan-
ties’ front, aligns it to the two-layer free end of the two-layer
gusset, sews the front of the panties to the two-layer gusset
with one seam, and ‘‘disposes’’ the four-piece assemblage.
The only difference between the panties so produced and the
panties produced under the old method is that under the new
method, both (instead of only one) of the seams which join
the gusset to the rest of the panties are ‘‘open’’ on the side
of the panties which will touch the skin. Perritt testified that
the new method of sewing gussets is faster than the old one,
because under the old method, the sewer had to pick up a
gusset twice, and under the new method, the sewer picks up
both gussets at once. He gave no other reason for any dif-
ference in speed.
Employees who sew gussets are paid on a piecework
basis, and are subject to production standards. Since about
1986, the initial step used by Respondent, in determining
how much time should be used to perform a new job, has
been to list the job elements required to perform the job, and
then to use a document, entitled the ‘‘General Sewing Data
Sheet,’’ to determine the time required for the performance
of each element.7 Perritt testified that this system was used
in connection with the new method for sewing gussets in cot-
ton panties. His testimony in this respect is only partly cor-
roborated by comparison of the General Sewing Data Sheet
with Respondent’s GSD aAnalysis for that method. Thus, the
GSD analysis for the new method attaches, to code numbers
not clearly set forth on the General Sewing Data Sheet, the
job elements ‘‘Sew 6 Inches’’ and ‘‘Sew 3 Inches.’’ The
‘‘TMU’s’’ (a TMU equals .006 of 1 minute) attached to
these elements total 76.3. The TMUs’ for the seemingly cor-
responding entries on the GSD Analysis for the old method
(‘‘Sew to end and off’’ and ‘‘Sew across’’) total 94.8 Perritt
testified that the time which is assigned to a particular job
element does not change when a new garment is introduced,
that the General Sewing Data Sheet has been in effect since
1986, and that it was used to calculate the standards for sew-
ing cotton gussets under both the old method and the new
method.9
In order to determine the piece rate on a job, Respondent
divides the hourly ‘‘base rate’’ by the ‘‘production rate’’—
that is, the number of units which, according to the GSD
analysis, should be produced every hour. As of the end of
1989, the hourly ‘‘base rate’’ was $4.65; the ‘‘production
rate’’ under the GSD analysis of the old method was 10
dozen per hour; and the ‘‘piece rate’’ was $.465 per dozen.
Under the GSD analysis performed toward the end of 1989,
the hourly ‘‘base rate’’ was $4.65; the ‘‘production rate’’
using the new method was 13.76 dozen per hour; and the
‘‘piece rate’’ was $.337 per dozen. The difference between
the ‘‘production rates’’ (and, therefore, the piece rates) was
due entirely to the fact that the analyses showed the number
of TMUs per unit under the new method (510) was lower
than the number of TMUs per unit under the old method
(716). Perritt testified that the two methods differed in that
under the new method, the gusset sewer made one pickup of
two gussets per unit, while under the old method she made
two pickups of one gusset per unit. He did not testify to any
other differences. The difference in the number of pickups
accounts for a difference of 52 TMUs per unit at most.10
However, the analysis of the new method unaccountedly
specifies, for a 6-inch seam under each method, 42.9 TMUs
under the new method and 56.5 TMUs under the old one;
and for a 3-inch seam under each method, 33.4 TMUs under
the new method and 37.5 TMU’s under the old one—that is,
a difference totalling 17.7 TMUs. In addition, the record fails
to suggest why the Analyses specified, as the final-element
‘‘disposition’’ of the two-seamed assemblage, a two-handed
motion under the old method (42 TMUs) and a one-handed
motion under the new one (23 TMU’s), a difference of 19
TMUs. The final entries in the old analysis and in the new
Analysis are, respectively, ‘‘Extra time’’ (101 TMUs) and
‘‘Addl TMU’s for Rate Equity’’ (46 TMUs), which entries
differ by 55 TMU’s—that is, more than the difference attrib-
utable to the only change in method to which Perritt testified.
Perritt explained the ‘‘Extra Time’’ entry as follows:
. . . this rate here [on the GSD analysis of the old
method] was originally set before the Company got the
GSD system. The production standard was 80 dozen
. . . when we got the GSD system in and we put all
the elements in to do this job then it came out to where
we had to add this time to make it even with our old
established rate.11
Perritt testified that the ‘‘Addl Time for Rate Equity’’ entry
on the GSD analysis of the new method is ‘‘A time that’s
added to the job as a safety factor. In other words if we
don’t have a . . . going to give them the benefit of the
doubt, we’re going to add that much time to it.’’
The new method of sewing gussets in cotton panties had
been used at Respondent’s Alamo, Tennessee plant, which
also used the GSD system. Perritt testified that in the fall of
1989, he had received a call from corporate headquarters in
New York that the sales department wanted to change all the
432 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 No contention is made that Respondent failed to add to the
‘‘base rate’’ a wage increase to which Respondent and the Union
agreed effective on January 2, 1989 (see infra).
13 It is unclear whether Perritt’s 10-percent estimate was based on
the total hours worked by all 55 gusset sewers, or only on the total
hours worked by the 20 employees who (he testified) were affected
by the change.
14 In finding that such a report was in fact made by Wilkerson,
I am aware that she was called as a witness for the General Counsel
but was not asked about this conversation. However, the truth of
Leachman’s testimony about Wilkerson’s report is indirectly cor-
roborated by a January 4, 1990 letter from Rudd to Young.
cotton gussets to the new type method because ‘‘that’s what
they wanted to sell.’’ Because the ultimate consumer could
not detect the difference between the panties produced re-
spectively by the old and by the new method unless she care-
fully inspected and compared the inside of a sample of each
kind, I infer that this message from the sales department was
not based on a belief that consumers would buy more of the
new-method panties because such consumers would regard
them as a better product. Rather, I infer that the sales depart-
ment was motivated by a belief that by using a production
method which at another facility or facilities Respondent had
found to be cheaper, without changing the consumer-per-
ceived quality of the panties, Respondent could increase
profits from sales to retailers by selling the new-method pan-
ties at old-method prices and/or increasing sales by lowering
prices. Perritt testified that the change in the method had
caused the Somerville plant to make a GSD timestudy of the
new method, and that because this time study showed the
new method required less time to do, the rate ‘‘had to be
changed.’’ In early January 1990, the Somerville plant began
to use, with respect to practically all cotton panties with gus-
sets, the new method and, concomitantly, the production
standards and piece rates set forth on the GSD analysis of
the new method—that is, production standards increased by
about 26 percent, and piece rates lowered by about 27 per-
cent, than specified in the GSD analysis of the old method.12
In the few instances where gussets on cotton panties were
sewn with the old method, Respondent used the piece rates
and production standards which had been in effect before
1990.
Of the 200 production employees who work in the Somer-
ville plant, about 55 sew gussets. Gusset sewers work on cot-
ton, nylon, polyester, lycra, and other types of panties. Perritt
testified that about 20 employees were affected by the 27-
percent decrease in the price for cotton gussets; and that, on
an average, a gusset sewer spends about 10 percent of her
time working on cotton gussets.13 The gussets of all of Re-
spondent’s styles of cotton panties can be sewn by either
method, without changing the cut of the gusset pieces or (so
far as the record shows) making any other change in any
other production process. The same is true of most, but not
all, styles of panties made with other fabrics.
Respondent did not notify the Union about the new pro-
duction rate for sewing cotton gussets or the new method for
sewing them, and did not give the Union an opportunity to
bargain about the matter. In late December 1989, Respondent
and the Union agreed on a wage increase for all employees,
in all job categories, to be effective on January 2, 1990.
Leachman credibly testified that after the first of 1990, Chief
Steward Marandy Wilkerson, a gusset operator who was a
member of the negotiating committee and of the ‘‘complaint
committee,’’ told her that the employees were being told by
their supervisors that because of that wage increase, the em-
ployees’ production quotas were going to be raised; this testi-
mony was not received to show the truth of the report.14
Perritt testified that the production standards were not in-
creased as a result of the pay increase.
By letter to Young dated January 4, 1990, Rudd stated:
Re: Wage increases, Somerville Mills
. . . .
It has been brought to the attention of this union,
that management at the Somerville Plant have told
some employees that their production quotas will be in-
creased as a result of the most recent wage increases.
Since the union has not agreed to such non-sense, I
am sure the supervisors who are spreading this vicious
garbage is [sic] doing so without your knowledge or
approval, because you obviously know better. There-
fore, the union requests that you inform the employees
by written memo that no such agreement has been
made with the union, and the employees should ignore
what they have been told by supervision or heard re-
garding this matter.
A refusal to comply with this simple request will
strongly indicate that you support and condone these al-
legations, even if you had no knowledge of them pre-
viously.
In any event, let it be known from this date forward
that any attempt to unilaterally raise production quotas
at the Somerville Plant will be opposed by every legal
resource the union deems necessary and appropriate.
By letter to Rudd dated January 9, 1990, Scruggs stated:
Your January 4 letter to Mr. Young has been forwarded
to me for response. I am advised that your alleged
statement (about an increase in production quotas as a
result of the recent wage increase) was not made, or if
it was made, it was not by any company representative.
Hence, no notice to employees is warranted.
During the bargaining session on January 24, 1990, gusset
sewer Marandy Wilkerson asked Vice President Young why
the rate had been lowered, and the quotas increased, on cot-
ton gussets. Young started saying, ‘‘Marandy—,’’ whereupon
Company Attorney Scruggs cut him off. During the bargain-
ing session on February 12, 1990, Wilkerson asked Young
the same question. Scruggs cut Young off again, and told
Wilkerson that Scruggs believed he was negotiating the con-
tract and Young was not. During one of the three 1990 bar-
gaining sessions through April 3, 1990,—probably during the
February 20 session—Leachman asked Young the reason for
the change in the cotton gusset rates; Scruggs told Leachman
that Scruggs believed the parties were there to negotiate a
contract, not to discuss the rates.
My findings in the preceding paragraph are based on
Wilkerson’s testimony and credible parts of Leachman’s tes-
timony. Perritt testified that he attended the 1990 contract ne-
gotiation sessions, and that he did not remember that the
issue of the production standards for cotton gussets was on
433SOMERVILLE MILLS
15 However, I draw no inference from Scruggs’ failure to testify
at the hearing, where he acted as Respondent’s trial counsel.
the the table at any time, or an instance when Scruggs cut
Young off from discussing production standards; Perritt fur-
ther testified that he believed he would remember such a cut-
off incident if it had happened. Leachman testified that ‘‘I
believe’’ Wilkerson after January 4, 1990, raised the subject
of production quotas on cotton gussets with Young, but ‘‘it
was not per se [Scruggs] and me negotiating,’’ and Respond-
ent did not agree during the 1990 negotiating sessions on
January 24, February 20, or April 3 to discuss or negotiate
regarding a change of production. Wilkerson impressed me
as an honest and intelligent witness; she would likely have
a particularly clear recollection of negotiations with respect
to her own job as gusset sewer; and except as to the cutoff
incidents Perritt testified, in effect, that he did not remember
whether such events occurred. As to the cutoff incidents, I
note that Young was present at counsel table throughout the
hearing but did not testify;15 and that the likelihood of any
individual’s overhearing a short conversation between three
others during bargaining sessions was diminished by the
large number of others who were also present (as many as
12 may have been there altogether—3 company representa-
tives, 2 union officials, and the 7-employee bargaining com-
mittee). Moreover, Wilkerson’s testimony as to the cutoff in-
cidents is to some extent indirectly corroborated by the fact
that it was Scruggs who answered the Union’s January 4 let-
ter to Young about alleged threatened increases in production
quotas; and by Scruggs’ request, in a letter to Rudd and
Leachman dated December 12, 1989, ‘‘In order that I may
fulfill my responsibilities as the company’s designated bar-
gaining representative, I again request you direct all commu-
nications with the company to me, either by phone or in
writing. You may copy Mr. Perritt and Mr. Young if you
wish.’’ Furthermore, in connection with the remarks which
Wilkerson attributed to Leachman, Wilkerson’s testimony
was not squarely denied by Young, Perritt, or anyone else.
Accordingly, and for demeanor reasons, I credit Wilkerson,
notwithstanding the absence of square corroboration of her
testimony, by Leachman or anyone else.
D. Alleged Unlawful Failure and Refusal to
Supply Information
1. Failure and refusal to supply Respondent’s
bargaining agreements at other locations
As previously noted, Respondent’s facility at Somerville,
Tennessee, the facility covered by the Union’s certification,
manufactures ladies’ panties. Respondent also has a facility
in Thurmont, Maryland, which manufactures dresses, and fa-
cilities in Scotts Hill and Henderson, Tennessee, which cut
ladies’ panties and manufacture dresses and ladies’ robes.
The robes manufactured in Henderson, at least, include pile
housecoats and dusters. All three of these other plants are
represented by the International Ladies’ Garment Workers’
Union and/or a local of that union.
When called as a witness for the General Counsel at the
outset of the hearing, Somerville Plant Manager Perritt, one
of Respondent’s representatives during the negotiations, testi-
fied that the employees at all four plants—that is, Somerville
and the three ILGWU—represented plants—have similar
skills and classifications. Thereafter, he was called by Re-
spondent as a witness. Perritt, who was the plant manager at
Henderson between 1983 and 1985 (when he became plant
manager at Somerville), testified, in response to a question
by me, that when he was at Henderson, the Henderson plant
used, when hiring production employees, about the same
standards of skill and experience now used at the Somerville
plant. In response to a further question by me, he testified
that experience at the Henderson plant would assist an appli-
cant in obtaining a job at the Somerville plant if ‘‘we
checked her out and everything was okay.’’ As a witness for
Respondent, Perritt testified that the two plants use ‘‘quite
different’’ kinds of fabric, which is a ‘‘very important’’ con-
sideration in sewing operators’ pay because the fabrics are
handled differently and are sewn at different speeds, and that
the two plants use different machinery, ‘‘I doubt if there’s
very many pieces of equipment that . . . each plant could
use.’’ He further testified as follows:
Q. [By company counsel Scruggs]: Are the garments
made in the same or different ways at Henderson and
Somerville?
A. Well, they’re made in the same process so far as
cutting and sewing on assembly line, yes. They use the
same methods in determining the standards, but taking
into consideration the difference in the fabrics and the
difference in the garments.
Q. What about the skill level of the operators, same
or different?
A. Skill levels [are] somewhat different.
Q. Which type of garment would require a higher
skill level, panties or robes?
A. Well, there are some jobs on the robes that would
require just as high as anything in the panties, but the
panties are maybe a little faster garment to produce be-
cause it doesn’t have as much labor involved.
Q. So it’s kind of hard to compare apples with or-
anges?
A. Right.
During the six collective-bargaining sessions between Feb-
ruary 28 and October 4, 1989, the parties agreed on a rec-
ognition clause, and the Union accepted Respondent’s pro-
posals regarding jury duty and a savings clause. In addition,
the Union agreed to some of Respondent’s proposals regard-
ing pay day, holidays, and vacations, although as to these
matters there was only a partial agreement. No agreement
had been reached with respect to grievance and arbitration,
leaves of absence, no-strike, no-lockout, management-rights,
union visitation rights, no-discrimination, illegal drug use,
layoff or recall, plant safety or security, insurance, seniority,
temporary job assignments, dues deductions, credit-union de-
ductions, discipline, discharge, duration of contract, overtime,
wages, hours, or ‘‘special categories of employees’’ (that is,
part-time employees or temporary employees on call). Be-
cause of Respondent’s strong opposition, the Union withdrew
its proposal with respect to bulletin boards. Union Vice
President Leachman, who was the Union’s principal rep-
resentative during bargaining negotiations, credibly testified
to the belief that up to October 4, 1989, negotiations had
been ‘‘totally unproductive.’’
On or shortly before October 4, 1989, Respondent put on
the table proposals (as to whose subjects no agreement had
434 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 The 19 employers named in the letter included Bozof Dinettes,
Burgie Industries and Memphis Vinegar, Fraenkel Bedding and
Wholesale, Imperial Dinettes, Imperial Warehouse, Mid-South Wood
Products, Memphis Sash & Door, National Bedding Company,
Nylon Net Company, Sealy Mattress Company, Southern Foam
Sales, Trojan Luggage, and Wire Components. The record otherwise
fails to show whether any of these firms employed employees with
classifications and skills similar to those of employees of Respond-
ent in the certified unit. Nor does the record show either the prod-
ucts made, or the employees’ skills, at Langston Mills.
been reached) regarding drug testing and searching and phys-
ical examinations, and a proposal that employees receive no
pay for nonworking time—specifically, holidays, vacations,
and funeral leave. At that point, some agreements had been
reached with respect to holidays and vacations, but not (so
far as the record shows) funeral leave. During the October
4 session, the Union asked whether the drug testing and
search and paid funeral leave were in place at Respondent’s
other locations. Respondent replied that this was none of the
Union’s business, and refused to discuss whether these items
were in effect, or what was in effect, at other locations. By
letter to Company Attorney Scruggs dated October 10, 1989,
Union President Rudd stated:
This letter shall confirm the union’s request, which was
made at the bargaining table on October 4, 1989, for
copies of all labor contracts that exist between [Re-
spondent] and other labor unions.
By letter to Leachman dated October 12, 1989, Scruggs
stated in part:
Since this information pertains to employees not only
outside the bargaining unit, but in different plants mak-
ing different products in different cities, there is no
automatic presumption that such a broad-based request
is relevant to negotiations between your union and
Somerville Mills. I would request the union explain
why it feels it needs each and every article in each and
every contract—without regard to the jobs being done,
or where, or for how long—in order to negotiate a con-
tract for Somerville Mills. Upon a sufficient showing of
relevancy for this sweeping request for nonunit infor-
mation, we will give it consideration.
By letter to Scruggs dated October 19, 1989, Rudd re-
newed the Union’s request for ‘‘copies of all labor contracts
that exist between [Respondent] and other labor unions.’’ As
reasons for this request, Rudd stated that such agreements
would indicate whether Respondent’s bargaining demands
with respect to the Somerville plant were a ‘‘matter of cor-
porate policy, that is applied uniformly to all union bargain-
ing units, or whether this union and this unit have been sin-
gled out in retaliation to these workers voting for representa-
tion in this union . . . . On the other hand, these documents
could provide the kind of information that may be very help-
ful in helping both parties in our efforts to resolve our dif-
ferences in good faith, and sign a contract that both parties
can live with.’’
Respondent never furnished these contracts. On November
9, 1989, Respondent and Scruggs received a copy of the first
complaint herein, which alleged that Respondent had violated
Section 8(a)(1) and (5) by failing and refusing to provide
‘‘Copies of all labor contracts that exist between Respondent
and other labor organizations. [Such] information . . . is
necessary for, and relevant to, the Union’s performance of its
function as the exclusive collective-bargaining representative
of the Unit.’’ A letter to Rudd from Company Attorney
Scruggs, dated November 10, 1989, reads as follows:
In order that we may intelligently and properly
evaluate the union’s contract proposals submitted in the
negotiations with [Respondent], please provide this of-
fice with all contracts between the Furniture Workers
Division, I.U.E. union and other employers.
Copies of such agreements will indicate whether the
union’s proposals to [Respondent] are a matter of union
policy that is applied uniformly in all union bargaining,
or whether [Respondent] is being treated differently.
These documents would also provide the kind of infor-
mation that may be very helpful in helping both parties
in our efforts to resolve our differences in good faith.
Please expedite your response to this request. It
would be helpful if we had this information in order
that we might study it prior to our next negotiations
sessions.
This request is submitted without prejudice to the
company’s objection to the relevancy of your October
10, 1989, request to the Company for this same infor-
mation.
Under a letter dated December 1, 1989, 19 days before the
bargaining session which next followed Scruggs’ request,
Rudd forwarded to Scruggs copies of 19 bargaining agree-
ments between the Union and other employers. The letter
concluded with the statement, ‘‘Hopefully this will help you
and your clients realize what a two party contract [looks]
like, and hopefully this will help you put some acceptable
proposals on the table at Langston and Somerville Mills.’’16
By letter handed to Scruggs and Young during the Feb-
ruary 20, 1990 bargaining session, the Union stated that it
was ‘‘willing to give serious consideration to the following
items as the company has in [its] contract [sic] with I.L.G.W.
Union.’’ After listing the unresolved issues described supra,
the letter went on to request that these items ‘‘be presented
verbatim’’ in writing during the meeting that day. Respond-
ent never supplied this information to the Union.
At the May 1990 hearing, Leachman credibly testified that
the Union asked for the contracts in question because the
Union was trying ‘‘to formulate some proposals that would
be acceptable to the company . . . we were trying to find
some common ground.’’
2. Alleged failure and refusal to furnish information
regarding subcontracting of unit work
By letter to Company Vice President Young dated July 21,
1988, after the Union had won the representation election but
before the Union’s certification and more than 6 months be-
fore the filing of the first charge, Union President Rudd stat-
ed in part:
It has been brought to the attention of this union that
Somerville Mills has conducted layoffs since the
N.L.R.B. election.
435SOMERVILLE MILLS
17 The record contains only one production standard used in the
Somerville plant in 1989—namely, 80 dozen per day for each gusset
sewer on cotton panties. Assuming that the production standard was
the same for the styles of panties sent to Royal and Guatemala be-
tween August 14 and October 4, sewing these panties in Somerville
would have required a total of about 360 days of work for the 55
Somerville gusset sewers.
18 My finding in this sentence is based upon Leachman’s testi-
mony, received into evidence without objection or limitation.
19 Of these, about 1090 dozen were of a style which did not call
for a crotch gusset.
. . . the union requests to meet with representatives of
the company to discuss the effects of these layoffs.
Respondent did not agree at this time to negotiate with the
Union regarding these layoffs.
On August 14, 1989, Respondent’s Somerville plant sent
about 2050 dozen pairs of panties, which had been cut in
Somerville, to Royal Sewing, an independent contractor in
New York City, to be assembled. On August 23, 1989, Re-
spondent’s Somerville plant sent about 3000 dozen pairs of
panties, which had been cut in Somerville, to an independent
contractor in Guatemala to be assembled. On September 5,
1989, Respondent’s Somerville plant sent about 3970 dozen
pairs of panties, which had been cut in Somerville, to Royal
Sewing to be assembled. On September 15 and October 4,
1989, Respondent’s Somerville plant sent a total of about
19,800 dozen pairs of panties, which had been cut in Somer-
ville, to the Guatemala independent contractor to be assem-
bled.17
On an undisclosed date prior to October 18, 1989, employ-
ees on the bargaining committee (including gusset sewer
Wilkerson and shipping department employee Tony Bryant)
told Union Vice President Leachman that employees were
being sent home early and being laid off for lack of work,
while at the same time work was being ‘‘shipped out’’ of the
Somerville plant.18 By letter to Young dated October 18,
1989, Leachman stated in part:
It is reported to this union that the unit employees
are constantly experiencing a shortage of work, due to
the company contracting out the work to non-union fac-
tories.
In order for this union to properly and effectively
represent our members and to protect their jobs, please
provide this office immediately with the following in-
formation, which is relevant to the above referenced
matter:
A. Year and date contracting out work began.
B. Names of persons involved in decision to con-
tract out the work.
C. Names and addresses of contractors.
D. How much production is being contracted out?
E. Detailed explanation of why decision was made
to contract out the work.
F. Number of hours lost per department, per em-
ployee since contracting out the work began and
number of employees affected.
G. Hourly and production incentive rates of all
employees directly involved in producing the con-
tracted out work.
H. Detailed explanation of how the contracting out
of this work will save the company money, plus cost
saving breakdown.
I. Copies of job numbers and descriptions of con-
tracted out work, plus listing of standard unit per
hour, and standard units per 8 hour day.
J. Number of employees and shifts directly in-
volved in producing, and the average amount of
work produced weekly and the average number of
hours worked to produce the contracted out work.
K. Detailed explanation of how the work can be
produced more efficiently by contracting it out.
L. Detailed explanation of what business factors
are involved in these alleged savings.
. . . .
The union requests to meet with you and manage-
ment immediately after receipt of this information to
bargain over these issues.
In connection with this request, the Union orally stated to
Respondent that the Union needed this information because
the perceived layoffs and shortage of work affected the earn-
ings of the Somerville unit employees.
By letter to the Union dated November 2, 1989, Scruggs
stated, inter alia:
5. Request for information about work performed at
other facilities/Ms. Leachman’s letter to Mr. Young,
dated October 18, has been forwarded to me for re-
sponse. Your request for information is based on an er-
roneous justification that unit employees are constantly
experiencing a shortage of work. This is simply not
true. The company will permit the union to examine the
timecards of the Somerville employees if you desire to
verify there is no shortage of work at the Somerville
plant.
On October 20, 1989, Respondent’s Somerville plant
shipped about 4000 dozen pairs of panties, which had been
cut in Somerville, to Royal Sewing for assembly. On Decem-
ber 1, 1989, Respondent’s Somerville plant shipped about
5180 dozen pairs of panties, which had been cut in Somer-
ville, to the Guatemala independent contractor for assem-
bly.19 Of the panties shipped to Guatemala on December 1,
as to about 1560 dozen the order calling for them to be cut
in Somerville and assembled in Guatemala had been drawn
up by Respondent’s New York office on October 20, 1989,
after the Union’s October 18, 1989 complaint about per-
ceived shortage of work at the Somerville plant and request
for information about contracting out.
After the Union had inspected the unit employees’ attend-
ance records, Leachman sent the following letter to Scruggs,
dated December 13, 1989:
On December 7, 1989, the union reviewed the com-
pany’s attendance records of its employees.
Mr. Scruggs, those records did not reflect the amount
of work that was available to the workers, only days
they were absent, and some of those absent days were
because of layoffs. Therefore, the union renews its re-
quest as of October 18, 1989. (copy enclosed)
436 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 My finding that the employees made this report to Leachman
and that she relayed this report to Respondent is based on her testi-
mony, which on timely objection was not received to show the truth
of either report. As discussed to some extent, supra, Respondent’s
records show that during negotiations, Respondent from time to time
shipped cut pieces, to be assembled, to Respondent’s Alamo plant,
to the Guatemala independent contractor, and to Royal Sewing in
New York City.
21 Because the Union specifically referred to work being shipped
to Respondent’s Alamo plant, this response by Attorney Scruggs
impliedly conceded that he understood the Union’s requests for sub-
contracting information as including work sent from the Somerville
plant to other plants owned by Respondent. Because it was Scruggs
alone who signed all of Respondent’s letters to the Union in re-
sponse to its requests for subcontracting information, and because
none of such written requests was directed to Plant Manager Perritt,
I attach no materiality to Perritt’s testimony that he believed the
Union was asking for the names and addresses of only contractors
(like Royal Sewing and the Guatemala firm) who performed work
for Respondent. As previously noted, Scruggs advised the Union that
it was he who Respondent’s ‘‘designated bargaining representative,’’
and all communications were to be directed to him, with a copy to
Perritt ‘‘if you wish.’’
By letter to Leachman dated January 15, 1990, Scruggs
stated (emphasis in original):
On October 18, 1989, you wrote Mr. Young alleging
‘‘the unit employees are constantly experiencing a
shortage of work, due to the company contracting out
the work to non-union factories’’ and, predicated upon
that basis, requested twelve lettered information items
constituting a voluminous amount of information. How-
ever, your request is based on a false premise—the em-
ployees are not experiencing a lack of work due to sub-
contracting. We attempted to demonstrate this [to] you
by permitting your examination of the daily attendance
records for the unit employees. Nevertheless, by your
letter to me dated December 13, 1989, you renew your
October 18, 1989 information request.
The union has previously filed at least two unfair
labor practice charges against this employer, alleging
subcontracting as a violation of the National Labor Re-
lations Act. No merit was found to either charge, and
they were eventually either dismissed or withdrawn by
the union. Your October 18 request raises those same
issues. It is irrelevant because there has been no ad-
verse effect on the Somerville bargaining unit. In addi-
tion, your request is burdensome and expensive to com-
pile, and would contain confidential information, the
disclosure of which could adversely affect the compa-
ny’s competitive position. Accordingly, we decline to
furnish the information requested.
Somerville Plant Manager Perritt testified at the hearing
that during the ‘‘first part’’ of 1990, most of the operators
throughout Respondent’s operations (including the Somer-
ville plant) ‘‘lost a few days’’ because of ‘‘excessive inven-
tory on the floor’’ of work to be done in a late stage of the
production process. Between January 5 and 29, 1990, the
Somerville plant sent about 20,400 dozen pairs of panties,
which had been cut in Somerville, to Guatemala or Royal
Sewing for assembly.
On an undisclosed date or dates during negotiations,
Scruggs told the Union that there was no subcontracting or
shipping of work out of the Somerville plant. The Union
thereupon told Scruggs that employees in the shipping de-
partment had told Leachman that work was being shipped
out to Guatemala, to ‘‘Miami International’’ (inferentially,
referring to the Miami, Florida airport), and to Respondent’s
plant in Alamo, Tennessee, an unorganized plant which is
about 36 miles from Somerville and, like the Somerville
plant, manufactures ladies’ panties.20 Scruggs then said that
if any subcontracting was being done, it had no adverse ef-
fect on the employees.21
A complaint allegation regarding Respondent’s response to
the October 18, 1989 request for subcontracting information
was first set forth in the amended consolidated complaint
issued on March 6, 1990, and including a notice that the
hearing would begin on May 14, 1990. Respondent’s initial
answer to the March 6 complaint, which answer was signed
by Scruggs and filed on March 9, 1990, admitted that Re-
spondent had failed and refused to provide this information,
but denied that it was necessary for, and relevant to, the
Union’s performance of its function as exclusive bargaining
representative. By letter dated March 9, 1990, and sent to
Leachman via courier, Scruggs stated:
RE: Somerville Mills
SUBJECT: Temporary Layoff/Short Work Weeks
. . . .
Due to an imbalance in the production process, it will
be necessary for employees in certain areas to work a
four day week, Tuesday–Friday, for the next two or
three weeks. This action affects approximately 115 em-
ployees which work in the gusset, leg and first side
areas on all lines. These employees will not work next
Monday, March 12, but will return to work Tuesday,
March 13. This cycle will be repeated an expected one
to two more weeks. The employees will be informed of
this schedule this afternoon.
On May 10, 1990, 4 days before the opening of the hear-
ing before me pursuant to the notice included in the March
6 complaint, Scruggs gave Leachman a letter which stated,
inter alia:
Re: Somerville Mills
Subject: Response to October 18, 1989, Request For In-
formation About Subcontracting
. . . .
There has been no subcontracting out of work which
was assigned to be sewn at the Somerville Mills plant.
There have been a few cases where production was ini-
tially, and tentatively, assigned to be sewn at the Som-
erville plant, but this initial sewing assignment was
changed before the production process began.
A letter from Scruggs, dated May 14, 1990 (the first day
of the hearing), and hand delivered to Leachman on May 15,
at the latest, states:
RE: Somerville Mills
SUBJECT: Layoff
. . . .
This letter confirms a telephone notification to your of-
fice of Friday afternoon [May 11, 1990], wherein I ad-
437SOMERVILLE MILLS
22 Perritt testified that such a decision is always made on the
issuance date shown on such a document. He further testified that
he himself does not know the reasons for any particular decision of
this nature.
23 See generally Covington Furniture Mfg. Co., 212 NLRB 214,
216–219 (1974), enfd. 514 F.2d 995 (6th Cir. 1975); Bartlett-Collins
Co., 237 NLRB 770, 772–773 (1978), enfd. 639 F.2d 654 (10th Cir.
1981), cert. denied 452 U.S. 961 (1981); Latrobe Steel Co. v. NLRB,
Continued
vised that there would be a layoff at the plant. The de-
tails are as follows: There has been insufficient output
from the gusset department to keep the jobs busy fur-
ther down the production line. Friday afternoon, em-
ployees in the Legs, First Side, Waist, Second Side,
Tack, Examine, Tag and Box jobs were sent home early
for lack of work for those particular job functions to
do. This is a chronic situation and short duration layoffs
and short days will continue from time to time until
gusset output attains a level which will keep the other
departments busy. This letter is intended to be notifica-
tion of all such layoffs which occur for the balance of
the month of May.
At the outset of the hearing on May 14, 1990, Scruggs
moved to amend his March 9 answer so as to state that Re-
spondent ‘‘refused, from October 18, 1989 until May 10,
1990, to furnish the information described’’ in the Union’s
letter of October 18, 1989; but to deny that such conduct by
Respondent continued after May 10. This motion was grant-
ed over the General Counsel’s objection.
Perritt testified that the words ‘‘imbalance in the produc-
tion process’’ in Scruggs’ March 9 letter meant that more
units had been processed in the early stages of production
than could be processed, without overtime work, by employ-
ees who worked in the later stages of production. The layoffs
referred to in the March 9 letter included the cutters and the
gusset sewers, who respectively perform the first and the sec-
ond production operations.
Respondent manufactures panties in at least four Ten-
nessee plants, owned and operated by it, located respectively
in Scotts Hill and Henderson (which, as to panties, perform
the cutting operation only), Somerville, and Alamo. Of these
Tennessee plants, only Somerville is unionized. In addition,
as previously noted, Respondent has some panties manufac-
tured by a company in Guatemala and another company,
Royal Sewing, in New York, New York; the record fails to
show whether either of them is unionized. All panties assem-
bled at plants other than the Somerville plant are upon com-
pletion sent to the Somerville plant, which sends to a dis-
tribution warehouse all completed panties, regardless of
where they were assembled.
All fabric and other components ordered to make panties
are initially sent to the Somerville plant. As to any batch of
panties to be manufactured, Respondent’s corporate produc-
tion department in New York, New York, decides, before the
first step (cutting) in the production process, where the pan-
ties are to be cut and where the panties are to be assembled.
Then, as to work not to be performed at Somerville, the
Somerville plant ships the appropriate fabric and/or other
components to the appropriate plant. The cutters in Respond-
ent’s Somerville plant spend about 2 or 3 percent of their
time cutting panties which are assembled in Respondent’s
Alamo plant or in the Royal Sewing and Guatemala plants;
Somerville has been cutting material for these three plants
since at least 1985. About 2 or 3 percent of the panties
which are assembled in Somerville are cut in Respondent’s
Alamo, Henderson, and Scotts Hill plants. Respondent never
notified the Union that 2 or 3 percent of the panties manu-
factured at Somerville are cut at other locations. As pre-
viously noted, cutters were included in the layoffs described
in Scruggs’ letter to Leachman dated March 9, 1990.
When asked why panties were sent to plants other than
Somerville for assembly, Perritt replied that Somerville can-
not make all the panties that the sales department can sell.
Perritt further testified that so far as he knew, once the cor-
porate production department in New York had issued a cut-
ting order which as to a particular panties batch specified
which plant was to perform the cutting and which plant was
to perform the assembly, this allocation had never been
changed. Perritt went on to testify that once a batch of pan-
ties had been cut in Somerville pursuant to a corporate pro-
duction-department decision to have Somerville cut and as-
semble them, none of the assembly had ever been performed
somewhere else. He testified that Respondent follows this
practice because, once Somerville started to assemble the
panties, it would be blamed for any problems which became
apparent after partly assembled panties had been shipped
elsewhere for completion. He further testified that Somerville
gets blamed for problems which become apparent after com-
ponents cut at Somerville are shipped elsewhere for the en-
tire assembly operation.
Prior to the hearing, the General Counsel served on Re-
spondent a subpoena which asked for records for piece goods
cut in Somerville which were shipped to other locations for
sewing and other processing during the period January 1,
1989, through May 4, 1990. In response to this subpoena,
Respondent produced 80 one-page documents. As to each
particular batch of panties covered by each page, that page
shows (1) the date on which Respondent’s corporate office
decided to have the panties assembled at a plant other than
the Somerville plant;22 (2) the date on which the Somerville
plant shipped the cut goods out for assembly; (3) as to Royal
Sewing and Alamo, the name of the plant to which the cut
goods were shipped; and (4) as to each batch, the number
of panties, their style and pattern numbers, their sizes and
colors, and the trim, labelling, and boxing to be used. These
documents show that the assembly work was done by a total
of three plants (Alamo, Guatemala, and Royal), and set forth
the address of the Alamo plant.
E. Analysis and Conclusions
1. Respondent’s insistence on meeting in Jackson
Section 8(d) defines the duty to bargain collectively, in
relevant part, as ‘‘the performance of the mutual obligation
of the employer and the representative of the employees to
meet at reasonable times and confer in good faith with re-
spect to wages, hours, and other terms and conditions of em-
ployment, or the negotiation of an agreement . . . but such
obligation does not compel either party to agree to a proposal
or require the making of a concession.’’ Because the situs of
bargaining negotiations does not constitute ‘‘wages, hours,
[or] other terms and conditions of employment,’’ the situs
issue in not a mandatory subject of collective bargaining.23
438 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
630 F.2d 171, 175–178 (3d Cir. 1980), cert. denied 454 U.S. 821
(1981); Hutchinson Fruit Co., 277 NLRB 497 (1985).
24 Because the location of negotiations is not a mandatory bargain-
ing subject, the Board’s power to issue such an order is unaffected
by the 8(d) strictures against compelling agreement or concessions.
Cf. H. K. Porter Co. v. NLRB, 397 U.S. 99 (1970).
25 Cf. Wavetronics Industries, 147 NLRB 238, 243–245 (1964);
Gulf Concrete Co., 165 NLRB 627, 632, 637 (1967); N.C. Coastal
Motor Lines, 219 NLRB 1009, 1015 (1975) (but employer had un-
lawfully eliminated the bargaining unit prior to the hearing); Port
Everglades Towing Co., 134 NLRB 795, 807, 810 (1961), modified
on other grounds 315 F.2d 376 (5th Cir. 1963).
26 See B. F. Diamond Construction Co., 163 NLRB 161, 175 fn.
93 (1967), enfd. 410 F.2d 462 (5th Cir. 1969); Mid-America Trans-
portation Co., 141 NLRB 326 (1963), enfd. 325 F.2d 87 (7th Cir.
1963) (unit consisted of shipboard personnel).
27 As to the 10 meetings whose hours are shown by the record,
only one broke up as early as 5 p.m., and all the others broke up
after 8 p.m. Accordingly, so far as the participants’ convenience is
concerned, the distance between the negotiating site and their respec-
tive homes would appear about as important as how far they had to
travel to get there from their respective places of employment. How-
ever, the record shows the home addresses of only Plant Manager
Perritt (Somerville) and employee Wilkerson (Mason, Tennessee),
both of whom live closer to East Memphis than to Jackson. Scruggs’
correspondence with the Union at least implies that Young lives in
or near Scotts Hill, Tennessee, which is closer to Jackson than to
East Memphis.
28 Jackson is about 60 miles from downtown Memphis, where
Union Officials Rudd and Leachman (as well as Company Attorney
Scruggs) have their offices; and 47 miles from the plant, where the
employee bargaining committee (as well as Plant Manager Perritt)
work. Cf. supra, fn. 27.
29 As previously, noted, East Memphis was geographically less
convenient for Young than Somerville, where the Union wanted to
meet.
In view of the ordinarily inseparable relationship between the
statutorily specified duty to meet on the one hand, and the
parties’ respective postures as to the situs of such meetings
on the other, evidence regarding the latter issue may assume
significance in determining whether a party to negotiations
has complied with the duty to meet and has bargained in
overall good faith. See, e.g., Clinton Food 4 Less, 288
NLRB 597, 602–603 (1988). In addition, where the parties’
failure to meet has been due at least partly to a disagreement
about where to meet and the employees in the unit work at
a single, fixed location, the Board will ordinarily find that
the statutory bargaining requirements have been violated by
a respondent which has refused to meet at or near the plant
and, as a remedy, will sometimes require the respondent to
meet there.24 See Tower Books, 273 NLRB 671, 672–673,
682 (1984), enfd. 772 F.2d 913 (9th Cir. 1985); Semperit Pa-
cific, Inc., 237 NLRB 478, 486–488, 490 (1978); P.
Lorillard Co., 16 NLRB 684, 695–702 (1939), enfd. as
modified 117 F.2d 921 (6th Cir. 1941), reversed and re-
manded with instructions to enforce in full 314 U.S. 512
(1942).25 Of course, no such finding can be made, and no
such order can be issued, where the unit employees work at
more than one location or have no fixed place of work.26
Moreover, even in the absence of such considerations, the
Board has said that there is no per se approach to deciding
where bargaining should take place, and that insistence on
meeting at a location some distance from the unit employees’
place of employment would not constitute or evidence an un-
lawful refusal to bargain if there is a showing of an over-
riding reason compelling negotiations elsewhere. See Tower
Books, supra, 273 NLRB at 672. Nevertheless, the Board’s
use of what may be fairly described as a rebuttable presump-
tion, that parties who cannot agree on the situs of negotia-
tions are to meet at or near the place where the unit employ-
ees work, serves the purpose of preventing either party from
foreclosing negotiations by proposing bargaining locations
unacceptable to the other. Cf. Bartlett-Collins, supra, 237
NLRB at 773. In view of the purpose served by this pre-
sumption, it cannot be overcome merely by a showing that
proposals for other meeting sites, although not agreed to,
were advanced in subjective good faith, and were reasonable
in the sense that they took into account the legitimate inter-
ests of both parties.
In this latter sense, it cannot be said that Respondent’s
proposal for meetings in Jackson was unreasonable. This pro-
posal accommodated Respondent’s legitimate interest in di-
minishing the distances which Company Vice President
Young, a participant in all the negotiations, had to travel in
order to attend. So far as the travel distances to the situs of
negotiations were concerned, the proposed change from East
Memphis to Jackson inconvenienced Respondent’s attorney
no less than the Union’s officers, and inconvenienced Plant
Manager Perritt no less than the employees on the Union’s
bargaining committee.27 Moreover, the travelling distances
which would have been imposed by a Jackson negotiation
site, from the union negotiators’ respective places of employ-
ment, are not so long as in themselves to suggest
unreasonableness.28 On the other hand, as to the negotiating
site, neither were the Union’s proposals shown to be unrea-
sonable or advanced in bad faith. The Union initially pro-
posed Somerville, which was the most convenient location
for the employees and Plant Manager Perritt and was as con-
venient to Company Attorney Scruggs as to Union Officials
Rudd and Leachman. The Union acceded to Respondent’s
proposal for meetings in East Memphis (which required more
travelling by Vice President Young than would have been re-
quired by the Somerville location sought by the Union), but
balked at Jackson, which called for more travel to negotia-
tions by everyone but Young, and again proposed Somerville
as a negotiating site. In view of the reason advanced by Re-
spondent for initiating negotiations in East Memphis rather
than Somerville—namely, a desire for a ‘‘neutral’’ site—Re-
spondent is in a rather poor position to deprecate the Union’s
expressed basis for objecting to Respondent’s proposed trans-
fer of alternate negotiating meetings from East Memphis to
Jackson—namely, that even the Memphis site had been Re-
spondent’s idea and initially objected to by the Union, that
Respondent must have known when proposing Memphis how
far Young would have to travel,29 and that the ‘‘psycho-
logical effect [on employees] that would result from such
management dictation would [undermine] and weaken the
union’s effectiveness.’’ While it is true that at the hearing
Leachman grossly overstated the distance between Somer-
ville and Jackson, the Union advised Respondent that the
Union’s rejection of a Jackson negotiating site was not based
to a significant extent on the consequent increase in mileage
and, moreover, Scruggs’ correspondence to the Union under-
estimated the increase which Respondent’s proposed change
entailed in travelling distance for the Union’s bargaining rep-
resentatives (as well as himself). In view of this failure to
439SOMERVILLE MILLS
30 The amended consolidated complaint alleges that Respondent
engaged in this conduct ‘‘Since on or about October 12, 1989, until
on or about November 6, 1989.’’
31 NLRB v. Katz, 369 U.S. 736, 742–743 (1962); NLRB v. Eltec
Corp., 870 F.2d 1112, 1117 (6th Cir. 1989); Storer Communications,
294 NLRB 1056 (1989).
32 See American Ambulance, 255 NLRB 417, 418–419, 421
(1981), enfd. 692 F.2d 762 (9th Cir. 1982); Accurate Die Casting
Co., 292 NLRB 982 (1989) (date when vacation pay could be
drawn); King Radio Corp., 166 NLRB 649, 654 (1967), enfd. 398
F.2d 14 (10th Cir. 1968).
33 Waycross Sportswear v. NLRB, 403 F.2d 832, 835–836 (5th Cir.
1968); Advertiser’s Mfg. Co., 280 NLRB 1185, 1197–1198 (1986),
enfd. 823 F.2d 1086 (7th Cir. 1987); Unoco Apparel, 215 NLRB 89,
90–91 (1974); see also cases cited infra, fns. 34–35.
34 Crystal Springs Shirt Corp., 245 NLRB 882, 885 (1979), enfd.
637 F.2d 399 (5th Cir. 1981); Master Slack, 230 NLRB 1054, 1055
(1977), enfd. 618 F.2d 6 (6th Cir. 1980).
35 See NLRB v. M. A. Harrison Mfg. Co., 682 F.2d 580, 581–582
(6th Cir. 1982); Advertiser’s Mfg. Co., supra, 280 NLRB at 1197–
1198; Van Dorn Plastic Machinery Co., 265 NLRB 864, 865, 869
(1982), enfd. in part and remanded in part 736 F.2d 343 (6th Cir.
1984), decision adhered to on remand, 286 NLRB 1233 (1978),
enfd. 881 F.2d 302 (6th Cir. 1989).
reach an agreement as to the situs of negotiations, I apply
the presumption that Respondent’s duty to meet at reasonable
places constituted under all the circumstances the duty to
meet in Somerville. Further, I find nothing in the record to
rebut this presumption; indeed, the Union repeatedly ad-
vanced this proposal, and on November 2, 1989, Respondent
proposed a meeting at a Somerville location after Respond-
ent’s proposed meeting in Jackson.
Accordingly, I find that Respondent violated Section
8(a)(5) and (1) of the Act by insisting on meeting in Jackson.
As to the date of this unlawful insistence, I find that it began
no later than November 2, 1989 (the date of Scruggs’ written
proposal that the next meeting be held in Jackson notwith-
standing the Union’s strenuous October 19 and 26 objections
to Respondent’s October 12 proposal for alternate meetings
at this site), and ended no earlier than November 6, 1989,
the date of Scruggs’ letter to the Union stating that the next
negotiating session with Respondent could be held in Mem-
phis on November 14 or 16.30 Although this insistence at
least arguably may have lasted for as little as 4 days, I do
not regard it as de minimis in the circumstances of this case.
Thus, such action likely played a part in the parties’ failure
to meet at all between October 4 and December 20. Re-
spondent’s November 2 letter proposing that the next meet-
ing be held in Jackson was received by the Union on the
very day which it had proposed a week earlier as a date for
the next bargaining session, in Somerville; and Respondent
did not send this November 2 letter until 14 days after the
Union’s strenuous October 19 protest of Jackson, even
though Respondent had had reason to anticipate that its Oc-
tober 12 proposal of Jackson as the site for the next and all
alternate subsequent meetings would be disliked by the
Union, which had initially wanted meetings in either its
downtown Memphis offices or in Somerville, and all nine of
whose representatives would be inconvenienced by the pro-
posed change to Jackson.
2. Respondent’s alleged unilateral conduct
a. As to receiving early paychecks
An employer violates Section 8(a)(5) and (1) of the Act
by effecting changes with respect to mandatory subjects of
collective bargaining without giving the employees’ collec-
tive-bargaining representative prior notice and an opportunity
to bargain regarding the change.31 The undisputed evidence
shows that Respondent gave the Union no such notice or op-
portunity before abolishing, about late October 1989, Re-
spondent’s prior practice of permitting employees, upon re-
ceiving advance permission from supervision, to obtain their
paychecks earlier on paydays than the employees would ordi-
narily have received them. The record further shows that for
an undisclosed period thereafter, and perhaps for several
months, no employee could obtain his paycheck on payday
until the ordinary distribution period of the last half-hour of
the workweek. Contrary to Respondent, I find that the hour
at which employees can obtain their paychecks constitutes a
mandatory subject of collective bargaining.32 Accordingly, I
find that by unilaterally effecting this change, Respondent
violated Section 8(a)(5) and (1) of the Act. As to the impact
of the change on employees, I note Plant Manager Perritt’s
testimony, in effect, that on the payday before Respondent
stopped entertaining requests for early paychecks, so many
employees had been able to obtain early paychecks that of
Respondent’s 200 production employees, only 45 were still
working that afternoon.
b. As to the production rate for sewing cotton gussets
In addition, the undisputed record evidence shows that in
January 1990, without giving the Union notice and an oppor-
tunity to bargain, Respondent changed the production rate for
gussets on cotton panties. I agree with the General Counsel
that such a rate constituted a mandatory subject of collective
bargaining and that, therefore, Respondent’s unilateral
change in that rate violated Section 8(a)(5) and (1) of the
Act.33 The difference effected in the panties by use of the
new method in sewing cotton gussets did not justify Re-
spondent in unilaterally changing the production rate there-
for.34 Nor would Respondent’s unilateral action be justified
by a showing (contrary to the evidence summarized supra,
part II,C,2) that in establishing production rates under the
new method, management did not change the time assigned
to any particular job element, used only the same master data
sheet used in connection with the old method, or used the
same data base (of job elements and times) which was used
before the Union’s certification. Crystal Springs Shirt, supra,
245 NLRB at 885. I note that Respondent ignored or
rebuffed the Union’s repeated inquiries at the bargaining
table about the reason for the change.
Respondent’s unilateral action cannot be justified on the
ground that such action affected only a small proportion and
number of unit employees. Even the particular change at-
tacked in the complaint affected between 10 percent and 28
percent of the 200 production employees, depending on
whether the cotton gusset work was performed by only 20
of the gusset operators or by all 55 of them.35 I note, more-
over, that the same method which Respondent instituted in
sewing cotton gussets can be used in sewing almost all of
the gussets sewn in the plant. Accordingly, if the proportion
and number of employees affected by the method change in
the instant case were to excuse the unilateral action attacked
440 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
36 E.g., wages, hours, overtime, payment for nonworking time, in-
surance, leaves of absence, temporary job assignments, ‘‘special em-
ployees,’’ seniority, layoff or recall, plant safety or security, manage-
ment rights, and union visitation rights.
37 Respondent’s unionized plant in Thurmont, Maryland, is about
850 miles from Somerville.
38 Respondent contends that this letter cannot properly be accorded
any weight as to the relevancy issue, in view of the final sentence
in this letter—‘‘This request is submitted without prejudice to the
in the instant complaint, Respondent would be free unilater-
ally to effect by degrees a change in the pay of more than
a quarter of the production employees in the bargaining unit.
3. Respondent’s alleged failure and refusal to provide
information necessary for, and relevant to, the Union’s
bargaining function
a. General principles
As the Court of Appeals for the Sixth Circuit said in
NLRB v. Postal Service, 841 F.2d 141, 144 (1988) (footnotes
omitted):
Generally, an employer’s duty to bargain collectively
established in 8(a)(5) of the National Labor Relations
Act, obligates it to provide a labor union with relevant
information necessary for the proper performance of the
union’s duties as the employees’ bargaining representa-
tive. Detroit Edison Co. v. NLRB, 440 U.S. 301, 303,
99 S.Ct. 1123, 1125, 59 L.Ed.2d 333 (1979); NLRB v.
Acme Indus. Co., 385 U.S. 432, 87 S.Ct. 565, 17
L.Ed.2d 495 (1967); NLRB v. Truitt Mfg. Co., 351 U.S.
149, 76 S.Ct. 753, 100 L.Ed. 1027 (1956). The failure
to provide such information constitutes an unfair labor
practice in violation of 8(a)(1) and (5) of the Act, 29
U.S.C. § 158(a)(1), (5).
As to the standards to be used in determining whether this
employer duty encompasses particular information requested
by the bargaining representative, that court said in E. I. du
Pont & Co. v. NLRB, 744 F.2d 536, 538 (1984):
When a union seeks information concerning the bar-
gaining unit itself, that information is presumptively rel-
evant and will be ordered disclosed without any show-
ing of relevance by the union unless the employer itself
rebuts the presumption. When a union seeks nonunit in-
formation, however, the burden is upon the union, and
in this case upon the General Counsel, to establish rel-
evance without the benefit of any presumption. NLRB
v. Rockwell-Standard Corp., 410 F.2d 953, 957 (6th
Cir. 1969); see also NLRB v. Leland Stanford Junior
Univ., 715 F.2d 473, 474 (9th Cir. 1983); Curtiss-
Wright Corp. v. NLRB, 347 F.2d 61, 69 (3d Cir. 1965)
. . . . The Board need only find a ‘‘probability that the
desired information [is] relevant . . . and that it would
be of use to the union in carrying out its statutory du-
ties and responsibilities.’’ NLRB v. Acme Indus. Co.,
385 U.S. 432, 437, 87 S.Ct. 565, 568, 17 L.Ed.2d 495
(1967); see also Rockwell Standard, 410 F.2d at 957;
General Elec. Co. v. NLRB, 466 F.2d 1177, 1182 (6th
Cir. 1972). Each case involving this issue ‘‘must turn
upon its particular facts. The inquiry must always be
whether or not under the circumstances . . . the statu-
tory obligation to bargain in good faith has been met.’’
NLRB v. Truitt Mfg. Co., 351 U.S. 149, 153–54, 76
S.Ct. 735, 756, 100 L.Ed. 1027 (1956) (footnote omit-
ted).
See also Barnard Engineering Co., 282 NLRB 617, 619
(1987).
b. Copies of Respondent’s bargaining agreements
at other plants
In the instant case, the first six bargaining sessions be-
tween Respondent and the Union, over a period of more than
7 months, had failed to produce agreement with respect to
a number of substantial issues which are typically dealt with
in collective-bargaining agreements. As to some of these un-
resolved issues. (e.g., grievance and arbitration, strikes and
lockouts, discrimination, deductions for dues and credit
union, and duration), any acceptance by Respondent of con-
tract clauses covering similar issues in other plants would not
self-evidently have been affected by the kind of garments
made in such plants and, therefore, might suggest a possible
willingness by Respondent to agree to similar clauses as to
Somerville. Moreover, although as to other unresolved issues
at Somerville the substance of what Respondent was willing
to agree to at other plants was likely affected by the products
made there,36 such agreed-upon provisions might neverthe-
less have provided a basis for union proposals acceptable to
Respondent at Somerville; for the employees at all four of
Respondent’s organized plants have similar skills and classi-
fications, some panty-production operations usually per-
formed at Somerville are on occasion performed (sometimes
on panties to be completed at Somerville) by Respondent’s
plants in Henderson and Scotts Hill (Tennessee), and these
two unionized Tennessee plants are about 60 miles from
Somerville.37 Further, in February 1990 the Union told Re-
spondent in terms that as to all unresolved issues, the Union
would be willing to give serious consideration to provisions
as to that issue in a bargaining agreement between Respond-
ent and another union at another plant; the Union first asked
about Respondent’s contract provisions elsewhere (as to drug
testing and searches and paid funeral leave) in a context
which must have suggested to Respondent that the Union be-
lieved such provisions might form a basis for agreement at
Somerville; the Union advised Respondent in October 1989
that the requested contracts would reveal whether Respond-
ent’s bargaining demands were a matter of corporate policy,
and ‘‘could provide the kinds of information that maybe very
helpful in helping both parties in our efforts to resolve our
differences in good faith, and sign a contract that both parties
can live with;’’ and, in subsequently requesting ‘‘all con-
tracts between the Furniture Workers Division, I.U.E. union’’
(the Union is a local of that division)—without any limita-
tion as to products manufactured, employee skills, or any
other characteristic, Respondent asserted that such documents
would enable it to ‘‘intelligently and properly evaluate’’ the
Union’s contract proposals, would indicate whether the
Union’s contract proposals were a matter of uniform union
policy, and ‘‘would also provide the kind of information that
may be helpful in helping both parties in our efforts to re-
solve our differences in good faith.’’38
441SOMERVILLE MILLS
company’s objection to the relevancy of your October 10, 1989, re-
quest to the Company for this same information.’’ However, Re-
spondent does not appear to be inviting an accusation of harassing
tactics by averring that this letter from Respondent to the Union con-
stituted a demand for information which Respondent knew to be ir-
relevant to negotiations.
39 Corson & Gruman Co., 278 NLRB 329 fn. 3, 334 (1986), enfd.
811 F.2d 1504 (4th Cir. 1987); National Cleaning Co., 265 NLRB
1352 (1982), enfd. 723 F.2d 746 (9th Cir. 1984). The record before
me shows that employees were in fact being laid off in early 1990,
and that Respondent was in fact shipping out of the Somerville
plant, for assembly by employees of other contractors, components
which were the same as the components often assembled by employ-
ees in the Somerville unit.
40 New York Post Corp., 283 NLRB 430, 439–440 (1987);
Clinchfield Coal Co., 275 NLRB 1384, 1395–1396 (1985); Quarto
Mining Co., 282 NLRB 696, 699–700 (1987).
I conclude that the Union’s request for Respondent’s con-
tracts at other unionized locations (three contracts at most)
was made in good faith, that Respondent knew at all material
times why the Union was asking for this information, and
that the General Counsel has sustained his burden of show-
ing that such information was relevant and would be of use
to the Union in carrying out its statutory duties and respon-
sibilities. See E. I. du Pont, supra, 744 F.2d 536, where the
employer made its wage proposals on the basis of prevailing
wages in the area of the central Tennessee plant whose pro-
duction and maintenance employees were represented by the
union, but the union wished to pursue negotiations on the
basis of the textile-fibers division in which the employer had
included that plant. The Sixth Circuit held that the union was
entitled to wage data for production and maintenance em-
ployees in the employer’s textile-fibers division plants in
Virginia and the Carolinas. See also E. I. du Pont & Co.,
271 NLRB 1153, 1156–1157 (1984). Respondent’s efforts to
distinguish this latter case, on the ground that the required
wage information was for employees producing the same
product, disregard the fact that the products cut at Respond-
ent’s Scotts Hill and Henderson plants include the same
product that is cut and assembled at Somerville. In any
event, although all the employees involved in this aspect of
the 1984 DuPont case removed, inspected, and packed bob-
bins of yarn, the decision does not suggest that all the plants
in question produced the same kind of yarn. I note, more-
over, that although the bargaining in that case related to a
‘‘phase 30 windup’’ system, the Board’s Order (271 NLRB
1153) required the employer to provide ‘‘information of
other plants that have the phase 30 windup (doff-paks) or
something similar relating to doff-paks’’ (emphasis added).
Respondent’s posthearing brief does not rely on Scruggs’
at least implied assertions, in his October 12, 1989 response
to the Union’s initial request for the contracts, that the
Union’s request was overly broad in that it requested all of
each contract and not merely portions thereof. See A-Plus
Roofing, 295 NLRB 967, 972 fn. 7 (1989). In any event, Re-
spondent never did provide even contract clauses covering
the three subjects (drug testing and searches and paid funeral
leave) which the Union specifically asked about during the
October 4, 1989 negotiations; or the contract clauses whose
subjects were specifically described in the Union’s letter to
Respondent dated February 20, 1990.
For the foregoing reasons, I find that Respondent violated
Section 8(a)(5) and (1) of the Act by failing and refusing to
comply with the Union’s request for copies of collective-bar-
gaining agreements covering Respondent’s organized plants.
c. Information regarding subcontracting
The undisputed evidence shows that employees on the bar-
gaining committee told the Union that unit employees were
being sent home early, and being laid off for lack of work,
while at the same time work was being shipped out the plant.
Because such reports proceeded from individuals (including
a shipping department employee) in at least a fairly good po-
sition to know the facts, I find that such reports were suffi-
cient to entitle the Union to obtain information from Re-
spondent relevant to a possible relationship between the em-
ployees’ failure to work full time and possible subcontracting
by Respondent.39 On October 18, 1989, on the basis of these
reports, the Union told Respondent that the Union had re-
ceived reports that unit employees were ‘‘constantly experi-
encing a shortage of work due to the company contracting
out the work to non-union factories.’’ Then, the Union asked
Respondent to provide, in substance, the names and address-
es of the subcontractors; what was being contracted out; who
had decided to contract it out; why the decision had been
made; when the contracting out began; how much work unit
employees had lost because of the contracting out; and the
savings by reason of, and the labor costs of, the contracting
out. I find that the General Counsel has sustained his burden
of showing that the information so requested was relevant to
the subject matter of the complained of layoffs.40 If supplied,
such information would have helped the Union to find out
whether the unit employees could have performed the work
if it had not been contracted out; whether reversal of a con-
tracting out decision would have to take into account the
rights and needs of other firms; what company arguments the
Union would likely have to meet in order to persuade Re-
spondent to have work performed by unit employees rather
than contracting it out; what union arguments (including
interplant shipping costs and shipping times, whose amount
would be suggested by the subcontractors’ addresses) would
likely be most persuasive in support of this position; and the
factual underpinning for Respondent’s rather likely conten-
tion that at least on occasion, work was contracted out to
save money.
Respondent’s duty to provide this information was not re-
lieved by Attorney Scruggs’ assertion to the Union that there
was no shortage of work or that, at least, there was no short-
age due to subcontracting. As to the assertion that there was
no shortage of work, Respondent seems to base this claim
on the view that all the employees would at all times have
been working but for absenteeism among employees who
performed work early in the production process, and but for
computer generated mistakes by Respondent in scheduling
production. However, so far as the record shows, Respondent
never gave the Union this rather artificial explication of
Scruggs’ representations, quite possibly because Respondent
expected that the Union would seek to limit subcontracting,
in order to avoid layoffs at Somerset, even if such layoffs
would not have been threatened but for absenteeism in other
classifications, or management error. As to Scruggs’ further
representation to the Union that any shortage of work at
Somerville was not due to subcontracting, Respondent’s brief
442 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
41 Such changes would not likely affect Respondent’s shipping
costs because all components are shipped from and all completed
products are shipped to, the Somerville plant.
42 Washington Gas Light Co., 273 NLRB 116 (1984); Mary
Thompson Hospital, 296 NLRB 1245 (1989); see also NLRB v.
Pfizer, Inc., 763 F.2d 887, 890–891 (7th Cir. 1985).
relies on the testimony that the Somerville plant has been
cutting panty components, to be assembled by Alamo, Royal,
or the Guatemala contractor, since at least 1985. However,
there is no evidence that Respondent ever gave the Union
this rather attenuated explanation of Scruggs’ claim, quite
possibly because Respondent expected that knowledge of this
prior practice would not deter the Union from asking Re-
spondent to refrain from laying Somerset employees off
while sending to Royal Sewing, to Guatemala, and to the
Alamo plant work of the same kind that the Somerville unit
employees regularly performed. In any event, the Union was
not required to be satisfied with Scruggs’ assurances; see
Walter N. Yoder & Sons v. NLRB, 754 F.2d 531, 535 (4th
Cir. 1985).
I regard as irrelevant, to the Union’s right to obtain the
requested information, the evidence that the practice of send-
ing to Royal Sewing and Guatemala for sewing some com-
ponents cut at Somerville predated the Union’s certification;
that after a cutting order had been filled out, Respondent had
never decided (even before the cutting had been performed)
that the components should be assembled at a plant other
than the one named in the cutting order; and that although
panties were sometimes cut in one plant and assembled in
another, Respondent had always had all steps in the assembly
process performed in one plant. There is no evidence that
Respondent ever gave any of this information to the Union;
but even if the Union knew about such prior practices, the
Union could have used the requested information as the basis
for a proposal that in order to avoid layoffs in the bargaining
unit, Respondent could on occasion either alter the decision
(reflected in the cutting order) to have assembly work per-
formed by Royal Sewing or by the Guatemala plant; plan to
have some steps in the assembly process performed in Som-
erville and later or earlier steps performed by Royal Sewing
or by the Guatemala plant;41 or have Somerville perform cut-
ting work which Respondent had initially planned to have
performed in other plants, perhaps for assembly by Somer-
ville. I note that on the occasions (testified to by Perritt)
when insufficient production by gusset sewers caused layoffs
among the employees assigned to later steps in the produc-
tion process, such laid-off employees could perhaps have
been assigned to working on panties (which Respondent
shipped to Guatemala for assembly) of a style which did not
call for gussets.
Respondent errs in contending that the Union’s October 8
and December 13, 1989 requests for information were satis-
fied when on May 10, 1990, Scruggs advised the Union that
there had been no subcontracting out of work which was as-
signed to be sewn at the Somerville Mills plant. This reply
was complete and accurate only on the assumption that the
Union knew about Respondent’s practice of deciding before
the cutting process the location where assembly was to be
done, and had merely been asking about instances where Re-
spondent had changed its mind after the cutting had begun.
For the reasons indicated previously, Respondent had no
basis for either assumption. That Respondent on May 10,
1990, was knowingly providing a dissembling response is in-
dicated by Scruggs’ January 15, 1990 letter, which asserted,
for the first and only time, that the Union’s ‘‘request is bur-
densome and expensive to compile, and would contain con-
fidential information, the disclosure of which could adversely
affect the company’s competitive position’’; Scruggs would
hardly have attached this description to the information in his
51-word May 10 letter. In any event, Respondent’s delay of
more than 6 months between the October 18, 1989 letter and
Respondent’s May 10, 1990 purported reply was unreason-
ably long and, therefore, would have violated Section 8(a)(5)
even if the May 10 letter had in fact contained the requested
information. Inner City Broadcasting Corp., 270 NLRB
1230, 1232 (1984).
Although Respondent’s letter of January 15, 1990, refused
to supply the requested information on the ground (inter alia)
that compiling it would be burdensome and costly, such con-
tentions do not warrant dismissal of the 8(a)(5) allegations,
because Respondent neither discharged its burden of estab-
lishing the truth of such contentions, nor offered to bargain
with the Union about who should bear such alleged costs.
Tower Books, supra, 273 NLRB 671. Indeed, Respondent
never so contended to the Union on any other occasion, and
has not so contended in its posthearing brief. The General
Counsel contends that substantially the same considerations
call for rejection of Respondent’s contention in that same let-
ter—and also never raised before or since—that some of the
requested information constituted confidential material whose
disclosure would adversely affect Respondent’s competitive
position. Even if confidentiality considerations justified Re-
spondent in failing to provided some of the requested infor-
mation, such considerations would not have justified Re-
spondent’s refusal to give the Union the rest of it. A-Plus
Roofing, supra, 295 NLRB 967, 972 fn. 7. Moreover, be-
cause Respondent has never specified what information Re-
spondent regards as confidential, Respondent has, a fortiori,
failed to meet its burden of showing that its alleged con-
fidentiality interest outweighs the Union’s need for the re-
quested information.42 Further, Respondent’s posthearing
brief, far from making a confidentiality claim, alleges that
the requested material was supplied on May 10, 1990; Re-
spondent’s January 15, 1990 letter was the only occasion in
which a confidentiality claim was even made; and Respond-
ent has never complied with its duty to come forward with
some offer to accommodate its alleged confidentiality con-
cerns with its bargaining obligations. In view of the fore-
going circumstances, the confidentiality claim is rejected.
Maben Energy Corp., 295 NLRB 149 fn. 1 (1989); cf. Gen-
eral Dynamics Corp., 268 NLRB 1432 (1984).
For the foregoing reasons, I find that Respondent has vio-
lated Section 8(a)(5) and (1) of the Act by failing and refus-
ing to supply the Union with the information set forth in the
Union’s letter to Respondent dated October 18, 1989.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
443SOMERVILLE MILLS
43 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
3. At all times since December 5, 1988, the Union by vir-
tue of Section 9(a) of the Act has been the exclusive rep-
resentative, for the purposes of collective bargaining with re-
spect to rates of pay, wages, hours of employment, and other
terms and conditions of employment, of Respondent’s em-
ployees in the following unit, which is appropriate for pur-
poses of collective bargaining within the meaning of Section
9(b) of the Act:
All production, maintenance, and shipping employees at
the Somerville, Tennessee facility including quality
control, inspectors, expeditors, piece good records clerk,
and shipping clerks; excluding office clericals, guards
and supervisors as defined in the Act.
4. Respondent has violated Section 8(a)(5) and (1) of the
Act in the following respects:
(a) By insisting between November 2 and 6, 1989, that
continuing contract negotiations be moved to an unreason-
able location.
(b) By imposing stricter standards for early disbursement
of paychecks, and by changing the production rate for em-
ployees who sew gussets in cotton panties, without giving
the Union prior notice and an opportunity to bargain.
(c) By failing and refusing to honor (1) the Union’s re-
quest for Respondent’s bargaining agreements at other loca-
tions, and (2) the Union’s request for information dated Oc-
tober 18, 1989.
5. The foregoing unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has violated the Act in cer-
tain respects, I shall recommend that Respondent be required
to cease and desist from such conduct, and like or related
conduct, and to take certain affirmative action to effectuate
the policies of the Act.
Affirmatively, Respondent will be required, on request by
the Union, to return to the production rate, for employees
who sew gussets on cotton panties, used before January
1990. Further, and in accordance with more recent Board de-
cisions finding an unlawful insistence on unreasonable nego-
tiating sites (Tower Books, supra, 273 NLRB at 682;
Semperit Pacific, supra, 237 NLRB at 490), Respondent will
be required, on request by the Union, to meet in or near the
plant in Somerville, Tennessee. In addition, Respondent will
be required to honor the Union’s request for Respondent’s
bargaining agreements at other locations, and the Union’s in-
formation request dated October 18, 1989. Also, Respondent
will be required to make employees whole for any losses
they may have suffered by reason of the unilateral change in
the production rate for gussets, with interest as called for in
New Horizons for the Retarded, 283 NLRB 1173 (1987). Be-
cause, with respect to early paychecks, Respondent has re-
turned to the practice observed before the unilateral change
in about November 1989, as to this violation no affirmative
relief is called for. In addition, Respondent will be required
to post appropriate notices.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended43
ORDER
The Respondent, I. Appel Corporation d/b/a Somerville
Mills, Somerville, Tennessee, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Insisting that continuing contract negotiations with re-
spect to the following bargaining unit be moved to an unrea-
sonable location:
All production, maintenance, and shipping employees at
Respondent’s Somerville, Tennessee facility including
quality control, inspectors, expeditors, piece goods
records clerk, and shipping clerks; excluding office
clericals, guards and supervisors as defined in the Na-
tional Labor Relations Act, as amended.
(b) As to employees in the foregoing bargaining unit, im-
posing stricter standards for early disbursement of paychecks,
changing the production rate for employees who sew gussets
in cotton panties, or otherwise changing rates of pay, wages,
hours of employment, or any other terms and conditions of
employment, without giving prior notice and an opportunity
to bargain to Furniture Workers Division, Local Union 282
of the International Union of Electronic, Electrical, Salaried,
Machine and Furniture Workers, AFL–CIO.
(c) Failing or refusing to honor Local 282’s request for
Respondent’s bargaining agreements at other locations, Local
282’s request for information dated October 18, 1989, or any
other request by Local 282 for relevant information nec-
essary for the proper performance of Local 282’s duties as
the bargaining representative of the foregoing unit.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request by Local 282, return to the production rate,
for employees who sew gussets on cotton panties, used be-
fore January 1990.
(b) On request by Local 282, conduct negotiating sessions,
with respect to the foregoing bargaining unit, in or near Re-
spondent’s facility in Somerville, Tennessee.
(c) Honor Local 282’s request for Respondent’s bargaining
agreements at other locations, and Local 282’s October 18,
1989 request for information.
(d) Make employees whole for any losses they may have
suffered by reason of Respondent’s unilateral change in pro-
duction rates for sewing gussets in cotton panties, in the
manner set forth in the remedy section of this decision.
(e) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
444 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
44 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(f) Post at its facilities in Somerville, Tennessee, copies of
the attached notice marked ‘‘Appendix.’’44 Copies of the no-
tice, on forms provided by the Regional Director for Region
26, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(g) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.