The Windsor Manufacturing Co.

National Labor Relations Board - Board Decisions

Feb 9, 1940

20 N.L.R.B. 301 (N.L.R.B. 1940)

In the Matter of JOHN J. OUGHTON, CHARLES T. OUGHTON, BERTRAM
E. OUGHTON, AND ROBERT B. OUGHTON, INDIVIDUALS AND CO-
PARTNERS TRADING AS THE WINDSOR MANUFACTURING COMPANY and
TEXTILE WORKERS ORGANIZING COMMITTEE (C. I. 0.)
Case No. C-1266.Decided February 9, 19/6
-Woolen Textile I'ndustri/-I'nterfe c nce, Restraint, and. Coercion: anti-union
speech and statements ; threat to shut down plant if employees joined and
remained members of union; removal of part of plant equipment ; statements
of supervisory employees favoring inside organization and opposing outside
organization-Unit' Appropriate for Collective Bargaining : production em-
ployees,' excluding executives, supervisors, and clerical help, no controversy
as to-Strike: called as result of refusal to recognize; consent election agree-
ment, to settle strike and recognize union if selected by majority-Representa-
tives: proof of choice : result of consent election ; subsequent defections due
to unfair labor practice cannot operate to change-Collective Bargaining : re-
fusal of : by failing to negotiate in good faith ; by refusing to grant conferences
when requested ; wage reduction and increase of hours without consulting or
notifying union; refusal to embody understaridings reached with union in
signed agreement ; counterproposals, failure or refusal to make-Remedy:
ordered to bargain with union and to embody understandings in written signed
agreement.
Mr.,Geoffrey, Cunniff, for the Board.
Montgomery c McCracken, by, Mr. Charles A. Wolfe, of Phila-
delph,ia,, Pa., for the respondent.
•Mr.'•Gilbert J. Kraus and Mr. Isadore Katz, of Philadelphia, Pa.,
for the Union.
Mr. John F. E. Hipped, of Philadelphia, Pa., for the Committee of
K employees.
'Mr. Emanuel Butter, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Textile Workers
Organizing Committee (C. I. 0.), herein called the Union, the
National Labor Relations Board, herein called the Board, by the
Regional Director for the Fourth Region (Philadelphia, Pennsyl-
20 N. L. R. B., No. 31.
301
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vania ), issued its complaint dated February 28, 1939, against John J.
Oughton, Charles T. Oughton, Bertram E. Oughton, and Robert
B. Oughton, individuals and co-partners trading as Windsor Manu-
facturing Company, herein called the respondents, alleging that the
respondents had engaged in and were engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (1)
and (5 ) and Section 2 (6) and (7) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. Copies of the complaint,
together with notice of hearing, were duly served upon the respond-
ents and the Union.
With respect to the unfair labor practices the complaint alleged,
in substance, that the respondents (1) deprived their employees of
the rights guaranteed in Section 7 of the Act, and (2) on or about
January 19, March 4, June 24, July 12, September 30, and November
28, 1938, and at all times thereafter, refused to bargain collectively
with the Union in that they refused to meet or bargain in good faith
with the Union as the exclusive representative of their employees
in an appropriate unit, consisting of the respondents' production
employees , exclusive of executives, supervisors, and clericals ,em-
ployees, although the Union represented a majority of such employees
for the purposes of collective bargaining. Thereafter, the respond-
ents filed their answer, admitting that they are engaged in interstate
commerce but denying that they had engaged in the alleged unfair
labor practices.
Pursuant to notice, a hearing was held in Philadelphia, Pennsyl-
vania, on March 9, 10, and 13, 1939, before Howard Myers, the Trial
Examiner duly designated by the Board. The Board, the Union,
and the respondents were represented by counsel and participated
in the hearing. Full opportunity to be heard, to examine and cross-
examine witnesses , and to introduce evidence bearing upon the issues
was afforded all parties.
At the outset of the hearing, counsel for a committee of 5 em=
ployees, herein called the Committee, claiming to represent 145
employees, whose signatures purported to be affixed to a written
authorization, filed a petition for leave to intervene.' Objection to
the intervention was made by 'counsel for the Board and the Union
on the ground that the Committee was not a proper party to the
proceeding. The Trial Examiner denied the petition. Thereupon,
counsel for the Committee moved to intervene on behalf of the indi-
viduals listed in the authorization. This motion was likewise denied.
At the close of the hearing, counsel for the Board and the respond-
ents moved to amend the pleadings to conform to the proof. These
1 The petition and the authorization were received in evidence as Board Exhibit No. 29.
Neither the petition nor the authorization purports to designate a person or labor organiza-
tion as bargaining representative.
THE WINDSOR MANUFACTURING COMPANY 303
motions were granted by the Trial Examiner. At the conclusion of
the Board's case the respondents' counsel moved to dismiss the com-
plaint. The Trial Examiner denied the motion. The motion to
dismiss was renewed at the end of the hearing. The Trial Examiner
reserved decision thereon and denied the motion in his Intermediate
Report. The Trial Examiner, at the hearing and in his Intermediate
Report, made various rulings on other motions and on objections to
the admission of evidence. The Board has reviewed the rulings of
the Trial Examiner and finds that no prejudicial errors were com-
mitted. The rulings of the Trial Examiner are hereby affirmed.
The respondents and the Union filed briefs with the Trial
Examiner. On April 25, 1939, the Trial Examiner filed -his Inter-
mediate Report, in which lie found that the respondents had
interfered with, restrained, and coerced their employees in the
exercise of the rights guaranteed in Section 7 of the Act and that the
-respondents had refused to bargain collectively with the Union as
the representative of the respondents' employees in an appropriate
unit, consisting of the respondents' production employees, exclusive
of executives, supervisors, and clerical employees. He recommended
that the respondents be ordered to cease and desist from such
practices and to bargain collectively with the Union upon request.
On May 5, and on May 6, 1939; respectively, the respondents and
the Committee filed exceptions to the Intermediate Report. Briefs
were filed with the Board by the respondents, the Committee, and the
Union.
On July 31, 1939, the Union filed a motion, praying, in substance,
that the Board substitute the name "Textile Workers Union of Amer-
ica, C. I. 0." for the name "Textile Workers Organizing Committee,
C. I. 0." On October 5, 1939, the Board issued and duly served upon
the parties a notice that on October 16, 1939, unless sufficient cause to
.the contrary should then appear, it would effect the substitution prayed
for wherever the name "Textile Workers Organizing Committee,
C. I. O." may appear in these proceedings. On October 7, 1939, the
respondents filed objections to the Union's motion. On October 17,
1939, pursuant to requests therefor by the respondents and the Com-
mittee and notice to them and to the Union, a hearing was held before
-the Board in Washington; D. C., for the purpose of oral argument
on the merits of the case and on the Union's motion of July 31, 1939,
and the respondents' objections thereto. The respondents, the Com-
mittee, and the Union were represented by counsel and participated
in the argument. No sufficient cause to the contrary having been
shown, 'the motion of the Union to substitute the name "Textile
Workers Union of America, C. I. 0." for the name "Textile Workers
Organizing Committee, C. I. 0." wherever it may appear in these
proceedings is hereby granted.
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has considered the exceptions to the Intermediate Report
and save as they are consistent with the findings, Conclusions, and
order set forth below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE 'RESPONDENTS
The respondents, John J., Charles T., Bertram E., and Robert B_
Oughton are brothers and copartners trading as Windsor Manufactur-
ing Company. They are engaged in the manufacture and sale of
worsted cloth and have their office and plant in Philadelphia,, Penn-
Sylvania. The principal raw material used by the respondents con-
sists of worsted' warn, nearly all of which is shipped to their plant
from points outside the State of Pennsylvania. During the period
from March. 1937 to February 1938, the respondents manufactured
439,930 yards of worsted cloth, valued at $890,748.06, of which 80 per
cent was shipped by the respondents to points outside the State of
Pennsylvania.
II. THE LABOR ORGANIZATION INVOLVED
Textile Workers Union of America, C. I. 0., is a labor organization
affiliated with the Congress of Industrial Organizations, admitting to
its membership the production employees* of the respondents, exclusive
of executives, supervisors, and clerical employees.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
During May 1937 an organizational campaign among the respond-
ents' employees was begun by the Union by the distribution of circulars
to the respondents' employees outside the plant. At lunch hours
and during the change of employees between the day and night shifts,
the Union used loudspeakers for the purpose of encouraging the
respondents' employees to join the Union. The respondents assert
that the conduct of the Union in connection with its membership drive
was "outrageous"; that it resorted' to-misrepresentatioIr of the working
conditions in the plant; that derogatory remarks were made of the
respondents and their foreman ; and that the employees were made
"nervous" with resultant curtailment of production.2
2 Witnesses for the respondents testified that the union organizers stated that the re-
spondents paid "starvation wages" ; that the respondents and their foremen "drove" the
employees ; that the respondents were replacing their employees with children at lower
wages ; that the Union would compel the respondents to sign a closed-shop contract ; and
that the respondents played golf, "going south in the winter time, going north in the
summer."
THE WINDSOR MANUFACTURING COMPANY 305
Contemporaneously with this campaign of the Union to organize
the respondents' employees, the respondents and their supervisory em-
ployees evidenced their hostility to the Union by making anti-union
statements to the respondents' employees and by threatening a shut-
down of the plant if the employees joined the Union or persisted in
their union membership.
In. June 1937, for the, asserted,.purpose of combatting the effects of,"
the Union's campaign, the respondents called a meeting at the plant
of all their employees. Bertram Oughton, one of the respondents,
'testified as follows regarding a speech he then made to the assembled
employees :
I told.the workers that I knew that organizing was going on,
and that they had heard what had been said, and I didn't think
it was necessary for me to tell them what was the truth of those
statements, and what was not the truth ; that so many of them
had worked there for so many years that they knew which were
the truth, and which were not the truth.
I' said that it, had been stated. that I had made a statement,
which I didn't authorize, that under certain conditions, the plant
would be shut down.
I said, "I want to correct this statement in this manner : That
I didn't authorize the statement, that we hoped it will not be shut
down, but," I said, "from the nature of the remarks made and the
attitude of some of these people," I said, "we could not sign a
contract with an organization which was so thoroughly irrespon-
sible as they had proved to be, but," I said, "you have a perfect
right to join any union you see fit to join," and they distinctly
understood that. [Italics supplied.]
I told them that we paid them as high wages as we could, as
the competition would allow us to pay, and we had had no com-
plaints of any nature brought to our attention as far as labor
was concerned and I hoped that the plant would continue to oper-
ate, that we had plenty of work and we wanted to finish that work
for both the sake of the employees and the sake of our own
organization. [Italics supplied.]
Emma Renn, an employee of the respondents, testified, as did Edward
Trainor, who was an employee at the time in question, that Oughton
stated at this meeting, inter alia, that he knew that the Union was
organizing the employees and that after it obtained a majority it
would ask the respondents for a contract; that the respondents would
never sign a contract; and that, "You think and have been told that
this does 'not mean anything, that there won't be any sort of tie-up,
or won 't be any. shut-down. Well, there will be a tie-up and it will
be a good`long tie-up." - Bertram Oughton,although called as a wit-
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ness after Renn and Trainor had testiled, did not deny the statements
attributed to him by these witnesses, and we find that the statements
were made as testified to by Renn and Trainor.
A few days after the meeting of all the employees, John Wiley,' a
foreman 4 in the respondents' plant, during working hours called to-
gether the 12 employees in the winding department and, according
to Renn's testimony, stated to them that
Now, it looks as though a majority started up with the C. I. O.
I don't know whether you have signed up or you haven't,
but the question is do you want to work, go along and work under
the conditions; whether or not you have signed up with the
C. I. 0., disregard the fact, and we will go along and work as
we are, or you have this place shut down tight . . . and, in the
meantime, if you haven't signed up, don't.
Renn testified that, shortly prior to the speech of Bertram Oughton,
Wiley had said to her and another employee, during their lunch hour,
"that as foreman of the Windsor Manufacturing Company.* didn't
have the right to do what he was about to do, but as an employee of
Windsor Manufacturing Company he did have the right and he was
placing himself in that position" and "he was going to arrange that
we form a union of our own, -in order to drive away any outside organi-
zation." Trainor testified that during the same month, Wiley asked
him to be one of five persons needed to obtain a charter for an inside
union.
George Gehring 5 testified that William Robinson, the respondents'
foreman of the weaving department, during June 1937 told him "that
he [Robinson] thought that we all had worked there so long that we
should all agree together and see if we couldn't drive the C. I. O.
away from the place" and, on many other occasions, that " ... he did
not understand why we wanted an outside organization, that he seemed
to think everything was going along all right in the shop."
Elmer Stevenson, one of the respondents' employees, testified that
Wiley,'during the summer of 1937 and several times in 1939, asked
him why he belonged to the Union, and that Wiley often stated to him
during the 4-month period preceding the hearing herein that the
Union consisted of "a bunch of Communists and Reds." Stevenson
also testified that John Shuster, another foreman of the respondents,
on two or three occasions in February 1939, told him that "if the Union
did not let the place alone here they [respondents] are going to move
3 Referred to in the record as John whilie.
4 The respondents' foremen have the right to hire and to recommend the discharge of
employees.'
5 Gehring, a union member, had been employed by the respondents for approximately 19
years.
THE WINDSOR MANUFACTURING COMPANY 307
south." Trainor further testified that several times during the months
of December 1938 and January and February . 1939, Wiley told him
that the respondents ' plant was going to be closed and moved south
unless the employees "drop this outside union." '
Wiley, Robinson , and Shuster were not called as witnesses at the
hearing and the statements attributed to them, set forth above, were
not denied . The respondents offered no explanation for their fail-
ure to call these foremen to testify . Under these circumstances, we,
believe the testimony of Renn, Trainor, Gehring, and Stevenson, con-
cerning the foremen's statements to be true and we find that those
statements were made.
The speech of Bertram Oughton was patently an appeal to the
employees not to join the Union. While stating that the employees
had a right to join any union , he nevertheless denounced the only labor.
organization organizing the respondents ' employees by declaring it
to be "thoroughly irresponsible " and further discredited it by indi
catin`g that no contract would be signed with it. He also indicated
that further organizational efforts and attempts to secure recognition
would result in a shut-down . The respondents contend in their brief
"that the `speech ' of Bertram Oughton and such statements as may
have been made by the foreman were the result of the unfair and out-
rageous method adopted by the Union in its efforts to unionize this
plant." 6 Unquestionably , Oughton had the right to defend the char-
acter of the respondents and the working conditions in the plant, but
in making anti-union statements at the same time in the guise of such
defense, he clearly interfered with, restrained , and coerced the em-
ployees in the exercise of the rights guaranteed in Section 7 of the
Act.
The statements made by Foremen Wiley, Robinson , and Shuster
further indicate the respondents ' anti-union animus. While the re-
spondents claim that they repeatedly warned their foremen against
any violation of the Act , they took no effective means to stop the.
repeated violations of the Act by their foremen . Furthermore, with
respect to the acts of the foremen , the doctrine of respondeat superior
applies, and the respondents are responsible for the actions of their
foremen in this respect .7 We find that by the above -mentioned state-
ments of their foremen, the respondents interfered with, restrained,
6 The respondents appear to be referring to the statements of the union organizers made
during the loudspeaker campaign in the vicinity of the plant.
P Swift & Company, a Corporation v. National Labor Relations Board, 106 F. (2d) 87
(C. C. A. 10), enf'g Matter of Swift & Company, a Corporation and Amalgamated. Meat
Cutters and Butcher TVorkmen of North America.. Local No. 6111, and United, Packing House
Workers Local Industrial Union No. 300 , 7 N. L. R. B . 269 ; National Labor Relations
Board v. The A. S. Abell Company, a Corporation, 97 F. (2d) 951 (C. C. A. 4), 1938,
enf'g Matter of The A. S. Abell Company , a Corporation and International Printing and
Pressmen's Union , Baltimore Branch, Baltimore Web Pressmen 's Union, No . 31, 5 N. L.
B. B. 644.
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and coerced their employees in the exercise of the rights guaranteed
in Section 7 of the Act.
The threats of shut-down and prospective loss of employment in
the event of unionization, made at the very time that the Union was
active in organizing the employees, showed the respondents' un-
mistakable hostility to the Union and to the self-organization of their
employees. By expressing such hostility and threats, the respondents
interfered with, restrained, and coerced their employees in the ex-
ercise of the rights guaranteed in Section 7 of the Act.
In the fall of 1938, at a time when the Union was seeking unsuc-
cessfully 8 to negotiate a contract with the respondents and attempt-
ing to adjust with them disputes concerning the alleged discrimina-
tory lay-off of union members, 24 looms and equipment incidental
thereto from the respondents' plant were shipped by the respondents
to a plant in Athens, Georgia, which had been opened a short time
previously by John Oughton, one of the respondents. The looms
were never replaced in the respondents' plant. John Oughton's
Athens plant is, like the respondents', engaged in the manufacture of
worsted cloth. Both plants receive their orders for the manufacture
of cloth from the same New York selling agency, John Oughton
Sons, a partnership composed of the four respondents and one John
H. Riley. Robinson, formerly a foreman in the respondents' Phila-
delphia plant, is now the assistant superintendent of the plant in
Athens, Georgia.
At the hearing the respondents failed to show the reason for the
transfer of the equipment to the southern plant. While it is true that
the removal of the 24 looms and incidental equipment did not close
the respondents' plant, it is clear that the respondents thereby reduced
the Philadalphia plant's productive capacity.
In the light of the threats to shut down the plant and "move
south" made by the respondents both before and after the shipment
of plant machinery to Athens, Georgia, the action of the respondents
in 'removing the equipment at a time when the Union was seeking
unsuccessfully to deal with them is susceptible of but one inference,
that the respondents were thereby forcefully demonstrating their
hostility, to the Union. Employees who witnessed the loom removal
and shipment could not have interpreted the respondents' acts other-
wise than as a carrying out by the respondents, in part at least, of
their threat to shut down the plant and as motivated by the
respondents' hostility to the Union.
We find that the respondents, by threatening their employees with
a shut-down if they persisted in their union activities; by threatening
8 The Union 's attempts to negotiate with the respondents are discussed in greater detail
in Section III, B, 3 , below.
TINE w1NDSOR MANUFACTURING COMPANY 309
to move south; and by removing part of their machinery and equip-
ment, under the circumstances above described, interfered with, re-
strained; and coerced their employees in the exercise of the rights
guaranteed in Section 7 of the Act.
B." The refusal to bargain collectively
1. The appropriate unit
The complaint alleges that the respondents ' employees engaged in
production at their Philadelphia plant, exclusive of executives , super-
visors, and clerical help ., constitute a unit appropriate for the purposes
of collective bargaining within the meaning of the Act. The answer
of the respondents admits this allegation. The production employees
of the respondents ' plant, excluding executives , supervisors , and cleri-
cal help, are eligible to membership in the Union.
We find that the respondents ' employees engaged in production at
their Philadelphia plant, exclusive of executives , supervisors, and
clerical help, constitute a unit appropriate for the purposes of collec-
tive bargaining , and that said unit will insure to employees of the
respondents the full benefit of their right to self-organization and to
collective bargaining , and otherwise effectuate the policies of the
Act.
2. Representation by the Union of a majority in the appropriate unit
On June 22, 1937, the Union, claiming that it represented a majority
of` the respondents' employees in an appropriate unit, requested a
conference with the respondents for the purpose of negotiating a
contract. A meeting was accordingly held on July 6, 1937, at the
office of the respondents' counsel, attended by the respondents and the
Unions The respondents' counsel stated that they did not recognize
the Union, but were meeting with it merely as a matter of courtesy.
Later that day, the members of the Union, because of the respondents'
refusal to recognize it, went on strike. The Union established a
picket line around the respondents' plant which. was continued until
January 19, 1938. The respondents' plant was closed from July 6,
1937, to January 3, 1938.
On January 17, 1938, at a conference attended by the respondents,
the Union, and the Mayor's Labor Board of the City of Philadelphia,
a consent-election agreement was entered into by the respondents and
the Union which provided, in substance, that the production em-
ployees of the respondents were to vote on January 19, 1938, to de-
termine whether or; not they wished to be represented by the Union
The union representative, attending this meeting included a committee of employees.
283031-41-vol. 20-21
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that, if a majority of the production employees chose the Union
as their collective bargaining representative the respondents would
recognize the Union as such. The election was accordingly held,
supervised by the Mayor's Labor Board. Of a total of 208 valid
votes cast, 123 were for the Union and 85 against it.
In their answer to the complaint, the respondents admit tliat oil
January 19, 1938, the Union was designated as agent for the pur-
poses of collective bargaining by a majority of their employees in the.
appropriate unit. The respondents claim, however, that the Union
remained a majority representative for not more than one year-
thereafter.
At the hearing the Union admitted that it no longer represented.
a majority of the employees in the appropriate unit. The record
shows that William Pollack, a union representative, testified that the-
Union represented a majority of the employees at the times when
the charge was filed and the complaint was issued; that he believed
some members had left the Union prior to the hearing because, of
the respondents' unfair labor practices; and that, therefore, he be -
lieved that the Union no longer represented a majority. Pollack
further testified that according to the Union's membership records,
it still- represents a majority and that he has received no formal
indication to the contrary.
No evidence was offered by the respondents to support their asser-
tion that the Union no longer represents a nmajority. On the con-'
trary, the only evidence in the record indicates that the Union's
majority status continued to the date of the complaint herein and,
except for the effect of the respondents' unfair labor practices,lo
thereafter. As we have previously held, the unfair labor practices
of the respondents cannot operate to change the bargaining repre-
sentative previously selected by the untrammeled will of the
majority."
We, therefore, find that on January 19, 1938, and at all times
thereafter, the Union was and that it is the duly designated repre-
sentative of the majority of the employees in the appropriate unit
for the purposes of collective bargaining. Pursuant to Section 9 (a)
of the Act it was therefore, and is, the exclusive representative of
all the employees in such unit for the purposes of collective bargain-
ing in respect to rates of pay, wages, hours of employment, and other
conditions of employment.
"Discussed in Section III, A, above, and Section IIT, B , 3, below.
"Matter of Arthur L. Cotten, and A. J. Cblm.an, co -partners doing business as^Kiddie
Kover Manufacturing Company and Amalgamated Clothing Workers of ,America, 6 N. L.
R. B. 355, enf'd National Labor Relations Board v. Gotten et at., 105 F. (2d).179...(C,;1C. A.;
6) ; Matter of Blanton Company and United Oleo,n .argerine Workers Local I,idustridi
Union No. 489, 16 N. L. R. B. 951.
THE WINDSOR MAN;UFACT'UIRING COMPANY 311
3. The refusal to bargain collectively
(a) Chronology of events
On January 21, 1938, after the consent election, discussed above,
the Union, by letter to the respondents, requested a conference with
them. On January 24, 26, and 28, conferences were accordingly held.
The main subject of dispute between the parties at these conferences
was the manner of rehiring employees following the strike. Two
suggestions for settling this dispute were offered by the Union at
the January 26 conference : (1) a share-the-work plan 12 in every
department; and (2) an alternative seniority plan to be applied in+
the lay-off and reemployment of employees. Both were rejected by-
the respondents. At this conference also, after much discussion of
the Union's proposals, the Union requested that the respondents
enter into a contract with it covering hours of employment only,
a matter as to which the parties agreed.':', Although a 40-hour
schedule had been maintained by the respondents for over 4 years,
the respondents refused to execute an agreement covering hours
only, claiming that they were in a seasonal business and that the
.maintenance of their schedule depended on production and on dates
of delivery of customers' orders.
At the January 28 conference, the Union proposed an agreement
covering wages, hours, and other conditions of employment. The
respondents were not personally present at this conference but were
represented by their counsel, Charles Wolfe, who advised the union
representatives that the respondents would not sign a contract, and
requested the Union to wait "to give the company a chance to get
used to the Union." The Union nevertheless insisted upon attempt-
ing to resolve the dispute between the parties concerning the method
of reemployment and lay-off of employees, and requested the desig-
nation of one of the respondents for the purpose of further bargain-
ing as to this. Wolfe thereupon promised to communicate with the
respondents and advise the Union.
Thereafter, certain employees were laid off by the respondents
and on February 16, 1938, the Union sent letters to the re-
spondents and their attorney requesting an immediate conference
regarding alleged discriminations in connection with the lay-offs.
'r Under this plan all the work in the plant would be divided equally among the em-
ployees in each department when the available work is insufficient to keep all fully
employed.
'3 The record indicates that at this conference the then current wages were also Con-
sidered satisfactory to the parties. At the hearing, Charles Oughton stated that the Union
did not request a written agreement covering wages ; and that he is uncertain whether
the respondents would have signed such a contract at that time because other matters also
had to be considered.
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On February 18 the respondents, acknowledging the Union's
letter, denied discrimination and stated, "The real difficulty at the
present time is in the fact that we have no new business coming in
and that there will probably be additional lay-offs in the near
future."' Wolfe also replied on February 18 denying discrimination
and asserting that the time and conferences devoted to the Union's
complaints were retarding the rebuilding of the respondents' busi-
ness and that unless the Union's complaints ceased "... the com-
pany will have no alternative but to discontinue any attempt to
conduct a business in Philadelphia." He further advised the Unioii
that he had suggested to the respondents that "one more conference"
be held.
On February 19, after receiving the respondents' February 18
letter, the Union filed charges with the Regional Office. of the Board,
alleging discrimination in the rehire and lay-off of union members
and that the respondents had refused to bargain collectively with
the Union.14 On February 28 and on March 4, 1938, conferences
arranged by Board representatives were held at the Regional Office
in connection with the charges, attended by the respondents and the
Union. Most of the discussion at these conferences centered about
the respondents' policy of lay-off and rehire. The Union again
submitted its share-the-work and seniority proposals as well as an
agreement covering wages, hours, and working conditions. The
respondents refused the share-the-work proposal and contended, at
first, that it was impractical for them to agree to a seniority system.
However, at the March 4 conference, the respondents promised to
communicate in a week with the Union regarding possible accept-
ance of the Union's seniority suggestion. The respondents, how-
ever, failed to do so.
In April 1938 the respondents, by Bertram Oughton, without con-
ferring with or notifying the Union, announced a 10-per cent wage
reduction effective April 25, 1938. The Union was informed of the
proposed wage reduction by its-members and on April 23 it addressed
a\ letter to the respondents to the attention of John Oughton, re-
questing an immediate conference to discuss the proposed wage re-
duction. Bertram Oughton replied to the Union's letter on April
25, stating that its letter would be turned over to John Oughton,
who was then out of town, when he returned. Bertram Oughtoit
admitted at the hearing that in his reply he did not advise the
Union that he was responsible for the wage reduction and testified
that the reason he did not do so was that the Union's letter wits
'4 By amended charge, filed February 28, 1939, upon which the complaint herein is hase•d,
that portion of the charge alleging discrimination was withdrawn by the Union.
TILE WINDSOR MANUFACTURING COMPANY 313
addressed to his brother, John. Bertram Oughton further ad-
mitted that at the time of the wage reduction he knew that the
Union was the exclusive agent of the respondents' employees for the
purpose of collective bargaining with respect to hours, wages, and
working conditions. When asked as to the reason for his failure
to communicate with the Union prior to the posting of the wage
reduction he testified, "Because, as I say, it was a. waste of their time,
it was a generally accepted principle that had to be clone because of
bad economic conditions." John Oughton did not thereafter reply
to the Union's letter of April 23, nor did any of the respondents
communicate with the Union with respect to the subject matter
thereof.
- Thereafter, pursuant to the Union's request to the respondents by
letter of June 13, a conference was held at the office of the respond-
ents' attorneys on June 24, attended by union representatives and
its attorney and the respondents and their attorney 15 The Union
at this conference again submitted its proposals concerning a share-
the-work plan and seniority and an agreement covering wages and
hours. The respondents, claiming that their employees were working
only a 40-hour week and that they were receiving the same wages
paid by other mills, rejected the proposals submitted by the Union and
refused to sign any agreement. Although requested to. do so by the
Union, no counterproposal was made by the respondents as to sen-
iority or share-tbe-work. The Union, in connection with its request
for an agreement, offered to include an arbitration clause for the pur-
pose of adjusting any seniority disputes and also a provision estab-
lishing-the -,then --current wages for < a. definite period of time • and
providing for the arbitration of the wage schedules in the event
of a controversy concerning same. The respondents not only refused
to accept these additional suggestions, but also rejected all the Union's
proposals and no understanding concerning wages, hours, or other
conditions of employment was reached at the conference.
Pursuant to union instructions, on July 1 a union representative
wrote a letter to the respondents, stating, in part :
I have been instructed to request a final conference between the
Company and the Committee for some day next week, to, make
one last attempt to arrive at an understanding. If we are not
able to agree at that time a strike will be called.
We do not wish this letter to be interpreted as a threat on our
part, but we are forced to take this action clue to the persistent
refusal of the management to make some satisfactory adjustment
16 A union committee composed of the employees of the respondents was also present at
this conference.
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of our differences. It is imperative that we hear from you next
week.
The respondents replied on July 5, claiming that in view of their
limited personnel they could not grant conferences whenever requested
and asserting that "the question of reemployment has been thor-
oughly discussed . . . We are carrying out the policy stated-to you
to the best of our ability." On July 8 the Union again wrote to the
respondents demanding a conference that day or the next. The
respondents failed to answer that letter and on July 11 the employees
stopped work at the plant. Thereupon, the respondents agreed to
confer with the Union that morning and the employees resumed their
work.
While the respondents and the Union clahn that at this conference
an agreement regarding seniority was reached, it is clear that they
misunderstood each other. The respondents sent a letter to the Union
on July 12, 1938, which the respondents claim embodies the terms
of the agreement. The pertinent portion of the respondents' letter
reads as follows :
We beg to advise you that we will follow the seniority basis in
re-employment as far as practical, considering the type of work
in plant.
This, of course, has always been our policy in past years and we
are glad to continue. We understand that this disposes of all
controversies and matters in dispute between us.'
The Union immediately replied to the respondents' letter, denying
that it set forth the understanding reached on the 11th, and claiming
that the agreement was ". . . that the workers would be reem-
ployed according to seniority, as work permitted . .. everything
that we have done has been done in an effort to change the policy
you have pursued over the last few years."
On September 30 the Union presented the respondents with a pro-
posed contract, which, in substance, contained provisions covering ex-
clusive recognition, hours, wages, prohibition of strikes, stoppages, and
lock-outs, share-the-work, seniority, and arbitration. An accompany-
ing letter requested the respondents to sign this contract, " . . . believ-
ing that it covers the basic points which have been at issue during
the past year . . ." On October 13 Charles Oughton replied to the
Union by letter, stating, in part, ". . . I am at a loss to understand
what your letter means by stating that `it covers the basic points which
have been at issue during the past year.' . . . Practically none of the
provisions in this agreement have ever been at issue between us nor
have ever they been discussed ..." At the hearing Charles Oughton,
admitted that of the seven provisions in the proposed agreement the
THE WINDSOR MANUFACTURING COMPANY 315
only two which had not been discussed during conferences prior to
September 30 were those relating to the duration of the contract and
the prohibition of strikes, stoppages, and lock-outs, and that all the
others had been discussed.
On November 7 the Union complained to the respondents concern-
ing alleged misunderstandings which had arisen in connection with
the -rehiring of laid-off employees and requested a conference as to
this. The respondents did not offer to confer, but instead offered to
take up any such specific misunderstandings upon the Union's advis-
ing them as to the names of the persons involved and the nature of the
complaints. The respondents claim that no names or complaints were
submitted to them; in any event, no conference took place.
On November 23, pursuant to an exchange of letters between the
respondents and the Regional Office of the Board concerning the
rehire of employees ]aid off,16 a conference was arranged by Board
-representatives for November 28, 1938, at which time the respondents
-and a Board representative were present. The respondents, after
waiting approximately an hour and a half, left because of the Union's
failure to appear. At the hearing Pollack, the-union representative,
testified that the Union was first notified of this conference when he
received a telephone call from the Regional Office advising him that
the respondents were there; that he stated that he would try to get
there shortly, but thereafter discovered that he was unable to do so
and so told the Regional Office by telephone, suggesting a postpone-
ment.
In the latter part of January 1939, the respondents posted a notice in,
their plant stating that the plant would operate thereafter on a
48-hour 17 week basis and that overtime pay would commence after
44 hours. The Union, which had not been notified of this action in
advance, wrote to the respondents on February 1, stating that this
was a matter for collective bargaining and asking for a conference.
On February 13 the respondents, replying by letter, refused to arrange
,',for-a-conference "in view of our past experience with your failure to
keep appointments for conferences arranged with you and our belief
that you represent few, if any, of our employees . . ." This was the
first time that the respondents questioned the Union's majority status.
(b) Conclusions regarding the refusal to bargain collectively
It is apparent from the foregoing that, although on January 17,
1938, the respondents obligated themselves to negotiate with the
Union, if it received a majority of the votes cast in the January 19
The Union 's charges in this case were then pending.
The record is not clear whether the proposed increase was to 48 hours or 54 hours.
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election, "with respect to any disputes that may arise between, the
production employees and the management," and although the Act
imposed upon the respondents the obligation to bargain collectively
with the Union as the exclusive representative of a majority of their
employees in the appropriate unit, the respondents at no time fulfilled
their obligations in this respect.
In February 1938, shortly after the consent election, the respond-
ents' attitude towards granting bargaining conferences to the Union
was evinced by their attorney, who claimed that the time and con-
ferences devoted to the Union's complaints were retarding the re-
building of the respondents' business and impliedly threatened a
shut-down in the event that the Union continued to seek conferences.
Thereafter, as shown above, on April 23, July 1, and July 8, 1938, and
on February 1, 1939, Union requests for collective bargaining con-
ferences with the respondents concerning wages, hours, and working
conditions met with the respondents' refusals to meet. The respond-
ents' replies to the Union's requests for conferences that ". . . We
cannot grant you conferences whenever you request" and "We.aee no
occasion for arranging for a conference," indicate clearly that '.the
respondents did not grant to the Union that to which it was en-
titled-collective bargaining rights for the respondents' employees.
It is elementary that before there can be collective bargaining, there
must be meetings of the parties. Such refusals to meet as the re-
spondents' constitute a refusal to bargain collectively within the
meaning of the Act.
Throughout the conferences between the Union and the respond-
ents;'the latter not only rejected every proposal made by the Union,
but also, although requested to do so by the Union, failed to make
any counterproposals or to exert any effort to submit any plan or
offer which could be considered evidence of the respondents' intention
to bargain in good faith.," The respondents' failure in this respect
was such as to-make productive negotiations impossible.
The record reveals also the respondents' refusal to enter into a con-
tract with the Union concerning such matters as hours of employment
as to which the parties were not in disagreement. Collective bar-
gaining as contemplated by the Act is a procedure looking toward
the making of a collective agreement by the employer with the
accredited representatives of his employees, concerning wages, hours
1s See Matter of Globe Cotton Mills and Textile Workers Organizing Committee , 6 N. L.
R. B. 401 , enf'd as mod. in Globe Cotton Mills v. National Labor Relations Board, 103
F. (2d) 91 (C. C. A. 5) ; Matter of Harry Schwartz Yarn Co ., Inc. and Textile Workers
Organizing Committee, 12 N. L . R. B. 1139 ; Matter of Wilson & Co., Inc ., and' United
Packing House Workers L . I. Union No . 51, 19 N . L. R. B. 990.
THE WINDSOR MANUFACT URING COMPANY 317
of service , and other working conditions. 19 If the employer adheres
to a preconceived determination not to enter into an agreement with
the representatives of his employees , then his meeting and discussing
the issues with them, however frequently, does not fulfill his obliga-
tions under the Act. As stated above, the respondents asserted during
the- Union's early organizational activities that they would never sign
a.contract .with the Union. The attitude of the respondents through-
out the conferences by which the Union sought recognition and
agreement compels the conclusion that in fact the respondents
did not recede from or alter their position at any time.
To the Union's proposals of September 30,'1938, the respondents
refused even the ostensible consideration they had accorded' other
proposals of the Union, stating, falsely, that practically none of the
proposals had ever been. at issue between the parties or discussed by
them. The respondents' bad faith thus shown is clear.
The respondents claim that on July 11, 1938, they did arrive at
a seniority agreement with the Union, as set forth in the respondents'
letter of July 12.. However, the respondents' contention as to this is
unsupported by the evidence. At the hearing the respondents admitted
that-AheirHletter, of July 12, as stated therein, was a restatement of the
seniority policy that they had followed for years, and claimed that
the.union representatives at the July 11 meeting were persuaded to
agree to this. It is clear, however, that the Union was not in accord
with the respondents and evidenced its disagreement with the re-
spondents immediately upon receipt of their letter of July 12. Fur-
thermore, in the light of the Union's frequent requests to the re-
spondents to change their seniority policy as practiced "in past years"
and in the light of the July 11 strike of the respondents' employees
which immediately preceded the conference of that day, the respond-
ents' claim that at that conference the Union agreed to the respond-
ents' old seniority policy appears to us to be'contrary to reason and
11 SeerhPatter of H. J. Heinz Company and Canning and Pickle Workers , Local Union No.
32k,'aflllated with Amalgamated Meat Cutters and Butcher Workmen of North America,
American Federation of Labor, 10 N. L. R. B . 963; Matter of Inland Steel Company and
Steel Workers Organizing Committee and Amalgamated Association of Iron. Steel, and Tin
Workers of North America , Lodge Nos . 6.i, 1010, and 1101, 9 N. L. R . B. 783. set aside in
Inland . Steel Conrpan.y, a Corporation v. National Labor Relations Board, 109 F. (2d) 9
C. C. A. 7) ; Matter of Highland Park Manufacturing Co. and Textile Workers Organizing
Committee, 12 N. L. R. B. 1238; Matter of St . Joseph Stock Yards Company and Amalgam-
ated Meat Cutters and Butcher Workmen of North America , Local Union No. 159, 2 N. L.
R. B.,39; Matter of Wilson d Co., Inc. and United Packing House Workers, L. I. Union
No. 51, 19 N. L. R. B. 990; See also N. L. R. B. v. Sands Manufacturing Company, 306 U. S.
332, aff 'g 96 F . ( 2d) 721 (C. C. A. 6), setting aside Matter of Sands Manufacturing
Company and Mechanics Educational Society of America ., 1 N. L. R . B. 546 ; Consolidated
Edis'ou Company of New York , Inc., et at . v. N. L. R . B. at at., 305 U. S . 197, aff'g in
part and setting aside in part 95 F. (2d) 390. enfi 'g Matter of Consolidated Edison Com-
pany of New York, Inc., at al . and United Electrical and Radio Workers of America,
affiliated- with the Committee for Industrial Organization , 4 N. L. R. B. 71.
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
belief. It thus appears that while on July. 11 the parties may have
come to some sort of agreement as to seniority, the respondents' letter
of July 12 was not a true expression of the. agreement reached.
The respondents, by putting into effect the wage reduction of April
25, 1938, at a time when the Union was seeking to bargain with them
with regard to wages and to obtain a wage contract, without notifying
or consulting with the Union, clearly indicated their refusal to bargain
with the Union. For the respondents so to ignore the exclusive col-
lective bargaining representative of their employees and unilaterally
to determine the wage reduction, a matter normally the subject of
collective bargaining, was a refusal to bargain within the meaning of
the Act.20
The respondents, also, by putting into effect an increase in hours in
January 1939 without consulting with or notifying the Union, refused
to bargain within the meaning of the Act.
We do not here pass upon any question as to the business necessities
which may have prompted the respondents to effect the wage reduction
and the increase in hours of labor. It is the respondents' failure.to give
prior notice or to consult with the Union regarding these matters=and
not the wage reduction and increase in hours, themselves, which we
have scrutinized.
We find that the respondents by (1) their refusal to meet with the
Union when requested; (2) their failure to submit. any offer to the
Union while at the same time rejecting the Union's proposals; (3)
their refusal to enter into any contract with the Union and to con-
sider the Union's proposed contract; (4) their putting into effect the
wage reduction of April 25, 1938, and, in January 1939, the increase
in hours of service without consultation with or notification to the
Union, refused to bargain collectively with the Union as the exclusive
representative of their employees in the appropriate unit with respect
to rates of pay, wages, hours of employment, and other conditions of
employment.
The effect of the respondents' refusal to bargain collectively with the
Union was of necessity to discredit the Union so as to discourage em-
ployees from maintaining their affiliation with the Union or from
affiliating therewith and from designating it as their bargaining rep-
resentative.
We find that by the above refusals to bargain the respondents have
interfered with, restrained, and coerced their employees in the exer-
cise of the rights guaranteed in Section 7 of the Act.
20 See Matter of Whittier Mills Company and Silver Lake Company and Textile Workers
Organizing Committee, et al., 15 N. L . R. B. 457; Matter of Wilson & Co ., Inc. and United
Packing House Workers L. I. Union No. 51, 19 N. L. R. B. 990.
THE WINDSOR MANUFACTURING COMPANY 319
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondents set' forth in Section
III above, occurring in connection with their operations described in
Section I above, have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States and have led
and .tend- to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
We have found that the respondents have engaged in certain unfair
labor practices. We shall order the respondents to cease and
desist therefrom. and to take certain affirmative action which we find
will effectuate the policies of the Act.
We have found that at all times since January 19, 1938, the Union
was and that it is the exclusive representative of the respondents'
employees in an appropriate unit. We have also found that the re-
spondents failed and refused to bargain collectively with the Union
as such representative. In order to effectuate the policies of the Act,
we shall order the respondents to bargain with the Union as the
representative of their employees in the appropriate unit. Having
further found that the respondents refused to enter into an agreement
with the Union, we shall address our order specifically to the wrong
sought to be remedied and order the respondent to embody any under-
standings reached in a written, signed agreement.21
Upon the basis. of, the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Textile Workers Union of America, C. I. 0., is a labor organi-
zation , within the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing their employees
in the exercise of the rights guaranteed in Section 7 of the Act, the
respondents have engaged in and are engaging in unfair labor prac-
tices , within the meaning of Section 8 (1) of the Act.
I Matter of Inland Steel Company and Steel Workers Organizing Committee and Amal-
gamated Association . of Iron, Steel and Tin Workers of North America , Lodge Nos. 64,
1010, and 1101, 9 N. L. R. B. 783, set aside in Inland Steel Company, a Corporation v.
N. L. R. B., 109 F. (2) 9 (C. C . A. 7) ; Matter of Holston Manufacturing Company and
American Federation of Hosiery Workers , 13 N. L . R. B. 783; Matter of Bussmannt
Manufacturing Company and McGraw Electric Company and International Association of
Machinists, District No. 9, affiliated with American Federation of Labor, 14 N. L. R. B.
322; Matter of Wilson t Co., Inc . and United Packing House Workers L . I. Union No. 51,
19 N. L . R. B. 990.
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The respondents' employees engaged in production at their
Philadelphia plant, exclusive of executives , supervisors , and clerical
help, constitute a unit appropriate for the purposes of collective
bargaining, within the meaning of Section 9, (b) of the Act.
4. Textile Workers Union of America , C. I. 0., was on January
19, 1938, . and .it all times thereafter has been , the exclusive represent-
ative of all the employees in the appropriate unit for the purposes
of collective bargaining , within the meaning of Section 9 (a) of
the Act.
5. The respondents, by refusing to bargain collectively with Tex-
tile Workers Union of America , C. I. 0., as the exclusive represent-
ative of their employees in the appropriate unit, have engaged in
and. are engaging in unfair labor practices, within the meaning of
Section 8 (5) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
ORDER
Upon the basis of the above findings of fact and - conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondents , John J. Oughton, Charles T. Oughton, Bertram E.
Oughton, and Robert B. Oughton , individuals and as co-partners
trading as Windsor Manufacturing Company, their agents, succes-
sors , and assigns shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Textile Workers Union
of America , C. I. 0., as the exclusive representative of their em-
ployees engaged in production at their Philadelphia plant, exclusive
of executives , supervisors , and clerical help;
(b) In any other manner iiiterfering,with, restraining , or coercing:
their employees in the exercise of their rights .to self-organization,
to form, join , or assist labor organizations , to bargain collectively
through representatives of their own choosin g' , or to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection as guaranteed in Section 7 of the National
Labor Relations Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Upon request bargain collectively with Textile Workers Union
of America , C. I. 0., as the.exclusive representative of their employees
engaged in production at their Philadelphia plant, exclusive of
executives, supervisors , and clerical help, in respect to rates of pay,
THE WINDSOR MANUFACTURING COlIPANY 321
wages, hours of employment, and other conditions of employment,
and, if an understanding is reached on any such matter, embody
said understanding in a written, signed contract;
(b) Post immediately in conspicuous places in and about their plant
notices to their employees, and maintain said notices for a period of
at least sixty (60) consecutive days from the date of posting, stating
that the respondents will cease and desist in the manner set forth in
paragraphs 1 (a) and (b) and` that they will take the affirmative
action set forth in paragraph 2 (a) of this Order;
(c) Notify the Regional Director for the Fourth Region in writing
within ten (10) days from the date of this Order what steps the
respondents have taken to comply herewith.