Union Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Nov 9, 1940

27 N.L.R.B. 1300 (N.L.R.B. 1940)

In the Matter of UNION MANUFACTURING COMPANY, IN'C., and TEXTILE
WORKERS UNION OF AMERIOA
Case No. C-1540-Decided November 9, 1910
Jurisdiction : hosiery and yarn manufacturing industry.
Unfair Labor Practices
Interference, Rcst2 mint, and Coercion: circulating anti-union petitions.
Collective Bargaining
By sending representatives to confer with the union who were authorized
to agree to matters only "tentatively and in principle," by refusing to indi-
cate, by initialing matters as to which tentative agreement had been reached
at prior conference, by failing to submit other promised counterproposals,
by indicating to its employees while meeting with the union that it intended
to deal with its employees independently of the union, employer held to have
failed to bargain in good faith.
Demanding that any agreement reached be ratified by a vote of all its
employees, whether or not members of the union constitutes a failure to
bargain in good faith.
Remedial Orders : employer ordered to bargain collectively with the union.
I Mr. Alexander E. Wilson, Jr., for the Board.
Weelces ct Candler, by Mr. John Wesley Weekes and Mr. Charles
Murphey Candler, Jr., of Decatur, Ga., for the respondent.
Mr. R. H. Braazell, of Atlanta, Ga., for the Union.
Mr. F. Hamilton Seeley, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Textile Workers
Union of America, herein called the; Union. the National Labor Re-
lations Board, herein called the Board, by the Regional Director for
the Tenth Region (Atlanta, Georgia), issued its complaint, dated
March 8, 1940, against Union Manufacturing Company, Inc., Union
Point, Georgia, herein called the respondent, alleging that the re-
spondent had engaged in and was 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.
27 N. L. R. B., No. 209.
1300
UNION MANUFACTURING COMPANY, INC. 1301
449, herein called the Act. Copies of the complaint and notice of
hearing thereon were duly served upon the respondent and the Union.
Concerning the unfair labor practices, the complaint, as amended
at the hearing, alleged, in substance, that the respondent (1) refused
to bargain collectively with the Union as the exclusive bargaining
representative of its employees in an appropriate unit consisting of the
respondent's production and maintenance employees, exclusive of
supervisory and clerical employees, by, inter alia, (a) failing to clothe
its representatives with sufficient authority to bargain collectively
i ith the Union in good faith, and (b) demanding and insisting that
all its employees, whether-or not members of the Union, be allowed to
vote on any agreement reached between the Union and the respondent ;
and (2) by the foregoing and other acts, interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act. -
On March 19, 1940, the respondent filed its answer to'the complaint
in which it admitted certain allegations with respect to the conduct
of its business but denied that it had engaged in the alleged unfair
labor practices. In its answer the respondent specifically admitted
that during the bargaining conferences held with the Union the
respondent had requested that all its employees, whether or not
members of the Union, be allowed to vote on any agreement reached
between the Union and the respondent.
Pursuant to notice, a hearing was held on March 21 and 22, 1940,
at Greensboro, Georgia, before Henry W. Schmidt, the Trial Ex-
aminer duly designated by the Board. The Board, the respondent,
and the Union 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. During the course of the hearing the Trial
Examiner made numerous rulings on, motions and on objections to
the admission of evidence. The Board has reviewed these rulings
of the Trial Examiner and finds that no prejudicial error was com-
mitted. The rulings are hereby affirmed. At the hearing the Trial
Examiner reserved ruling on a motion by the respondent's counsel
to strike certain testimony regarding events occurring after the
issuance of the complaint.' In his Intermediate Report the Trial
Examiner did not rule upon this motion, stating that he found it
unnecessary to do so since he disregarded such testimony. The mo-
tion is hereby denied. At the conclusion of the hearing the respond-
ent's counsel moved to dismiss the complaint.2 The Trial Examiner
'While counsel for the respondent phrased the motion as one to dismiss the complaint,
it is obvious that the motion was one to strike certain testimony, and it was so treated
by the Trial Examiner.
2 The motion, as stated by the respondent' s counsel , was for "a directed verdict
1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did not specifically rule upon this motion. The motion is hereby
denied.
On April 11, 1940, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon the parties. The
Trial examiner found that the respondent had engaged in unfair
labor practices affecting commerce within the meaning of Section
8 (1) and (5) and Section 2 (6) and (7) of the Act, and recommended
that the respondent cease and desist therefrom and take certain
affirmative action to effectuate the policies of the Act.
On May 2, 1940, the respondent filed its exceptions to the Inter-
mediate Report. On May 21, 1940, pursuant to request therefor by
the respondent and notice thereof to all parties, a hearing was held'
before the Board in Washington, D. C., for the purpose of oral
argument. The respondent was represented by counsel and partici-
pated in the hearing.
The Board has considered the exceptions to the Intermediate
Report and, save as they are consistent with the findings, conclusions,
and order as 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 RESPONDENT
The respondent, Union Manufacturing Company, Inc., is a Georgia
corporation having its plant and principal place of business at Union
Point, Georgia, where it is engaged, in the manufacture and sale of
yarns and men's and boys' hosiery. The yarn and hosiery depart-
ments are operated as one plant, under a common management and
administration, and the respondent itself uses the major portion of
the yarn it produces.
The materials used by the respondent in its business include cotton,
rayon, rayon staple, celanese, celanese staple, wool, yarn, dyestuffs,
strawboard, needles, and machinery replacements. The respondent
annually uses approximately 1,489,000 pounds of these materials, of
a value of approximately $241,000. It obtains only its raw cotton,
yarn, and the major portion of its rayon from within the State of
Georgia. It obtains over 11 per cent by weight and 33 per cent by
value of all the material it uses from the States of Maryland, Massa-
chusetts, New Hampshire, New York, North Carolina, Rhode Island,
and Tennessee. The value of all products sold by the respondent
annually is approximately $900,000, and the weight thereof is approxi-
mately 1,000,000 pounds. Approximately 95 per cent of these products
are shipped to points outside the State of Georgia,-the principal cus-
UNION MANUFACTURING COMPANY, INC. 1303
tomers of the respondent being F. W. Woolworth & Company, J. C.
Penney Company, and Sears , Roebuck & Company, operators of Na-
tion-wide chain stores.
II. THE ORGANIZATION INVOLVED
Textile Workers Union of America is a labor organization, affiliated
with the Congress of Industrial Organizations, admitting to member-
ship the, production and maintenance employees of the respondent,
exclusive of supervisory and clerical employees.
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain collectively
1. The appropriate unit
On September 7, 1939, after hearing upon due notice, the Board
issued its Decision and Direction of Election, finding that the produc-
tion and maintenance employees of the respondent, exclusive of super-
visory and clerical employees, constitute a unit appropriate for the
purposes of collective bargaining.3
At the hearing in the present proceeding, no question was raised con-
cerning the validity of such finding.
We find that the production and maintenance employees of the re-
spondent, exclusive of supervisory and clerical employees, at all times
material herein constituted and that they now constitute a unit appro-
priate for the purposes of collective bargaining, and that said unit
insures to employees of the respondent the full benefit of their right
to self-organization and to collective bargaining and otherwise effectu-
ates the policies of the Act.
2. Representation by the Union of a majority in the appropriate unit
On September 29, 1939, following an election by secret ballot held
pursuant to the Board's Direction of Election of September 7, 1939,
the Board certified the Union as the exclusive collective bargaining
representative of all the employees in the appropriate Unit .4
We find that at all times since the Board's Certification of Represen-
tatives of September 29, 1939, the Union was and is the exclusive repre-
sentative of all the employees in the appropriate unit for the purposes
of collective bargaining in respect to rates of pay, wages, hours of em-
ployment, and other conditions of employment.
Smatter of Union Manufacturing Company, Inc. and Textile Workers Union of America,
15 N. L R. B. 127.
'Matter of Union Manufacturing Company, Inc . and Textile Workers Union of America,
15 N. L. R. B . 127, 131.
1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The refusal to bargain
Pursuant to the Union's request, a conference to negotiate an agree-
ment between it and the respondent was held on October 9, 1939, in the
office of Messrs. Weekes and Candler at Decatur, Georgia. The Union
was represented at this and subsequent conferences by Charles E.
Earnhardt, the Georgia director of the Union, and a union committee
composed of the respondent's employees. The respondent was rep-
resented by its attorneys, Weekes and Candler. The Union submitted
a proposed contract to the respondent's attorneys and its was dis-
cussed in detail by those present. The attorneys rejected certain of
the articles contained in the contract and accepted others "tentatively
and in principle," explaining that "nothing is accepted . . . until at
the conclusion of the agreement definitely, and that it had to have
the official O. K. of Mr. Lamb, the President of the mill, and that he
would have the final say oil the acceptance of any agreement." The
conference ended with the respondent's attorneys promising to submit
a counterproposal to the Union.
The next conference was held on October 26 or 27, and the respond-
ent's attorneys then submitted to the Union a counterproposal., Ar-
ticles that had been tentatively accepted by the respondent at the
October 9 conference, however, were not incorporated in the counter-
proposal, which provided that any agreement reached would have to,
be ratified by a majority of the union members at the plant. The
Union objected to this provision as an invasion of the internal affairs
of the Union by the respondent. , After further discussion of the re-
spondent's counterproposal, the Union's representatives agreed to
submit to the union membership the respondent's counterproposal and,
in the event of its rejection by the membership, to submit to the re-
spondent a second proposal. Accordingly, on October 28 the union
representatives submitted the respondent's counterproposal to the
union membership, which rejected it by a unanimous vote. On the
same day the Union mailed its second proposed contract to Weekes and
Candler.
The next conference was held on January 10, 1940. Harold Lamb,
president of the respondent, was present at this conference for the
first time. At the beginning of this conference the Union's represellta-
tives were informed by the respondent's attorneys and by Lamb that
any agreement that might be reached by them would have to be rati-
fied by a'majority of all the respondent's employees, both members and
non-members of the Union, at an open meeting to be held in the plant
and in the presence of officials of the respondent. Although the Union
I An informal conference was held on November 11, at which no bargaining took place.
Earnhardt and Candler were both absent from this meeting '
UNION MANUFACTURING COMPANY, INC. 1305
objected to this upon the ground that it nullified the Board's certifi-
cation, the Union's second proposal was discussed in detail at the con-
ference. Despite the fact that the respondent's representatives' were
in apparent agreement with the Union in regard to certain provisions
in the second proposed agreement, they refused to indicate such agree-
ment definitely by initialling such provisions. The respondent did,
however, promise to submit to the Union a second counterproposal.
On January 16 another conference between the parties was held
and the Union's second proposal was again discussed, since the re-
spondent had not submitted its promised second counterproposal. At
this conference, also, the respondent insisted that any agreement
,reached would have to be ratified by a vote of all the respondent's
employees. At the January 16 conference, again, the respondent
promised to submit to the Union a second counterproposal.. This,
however, was never received by the Union.
The final conference between the parties was held on January 19.
Negotiations were terminated at that time because of the respondent's
insistence upon ratification by all its employees of any agreement
reached and because at the conference Lamb showed Earnhardt a
memorandum which he had that day httached to the pay checks of the
employees. This memorandum, discussed below in Section III B,
was derogatory of the union leaders and indicated the respondent's
intention to deal with the employees either individually or collectively
but in disregard of the Union and of the Union's status as the em-
ployees' exclusive bargaining representative.
From the foregoing it is clear that the respondent, from the time
of the Board's certification of the Union- as the exclusive collective
bargaining representative of its employees, sought to avoid such
bargaining. By sending representatives to confer with the Union
who were authorized -to agree to matters only "tentatively and in
principle," by refusing to indicate, by initialling, matters as to which
tentative agreement had been reached, by submitting counterproposals
which omitted matters as to which tentative agreement had been
reached at prior conferences, by failing to submit other promised
counterproposals, and by indicating to its employees while meeting
with the Union that it intended to deal with its employees independ-
ently of the Union, the respondent succeeded in its efforts to refrain
from bargaining with the Union. Collective bargaining as contem-
plated by the Act is a procedure looking toward the making of a col-
lective agreement by the employer with the accredited representatives
of his employees, concerning wages, hours of service, and other work
ing conditions. The respondent, by the tactics mentioned above,
studiously refrained from doing those things which normally precede
1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the making of a collective agreement and thus made any productive
negotiations impossible.
,We find that the respondent, by the foregoing acts, refused to
bargain collectively with the Union as the representative of its
employees in an appropriate unit, in respect to rates of pay, wages,
hours of employment, and other conditions of employment.
We examine separately the respondent's insistence upon the rati-
fication by a vote of all its employees, both members and non-members
of the Union, of any agreement reached between it and the Union.
In its answer and at the oral argument before the Board the re-
spondent admitted that it, had insisted upon such ratification. At
the oral argument the respondent's attorney stated that this question
of ratification "is the main factor in the case." We concur in his
characterization.
By their votes in the election by secret ballot held pursuant to
the Board's Direction of Election of September 7, 1939, the respond-
ent's employees designated the Union as their exclusive repre-
sentative for the purposes of collective bargaining. On September
29, 1939, the Board certified the Union as 'such. As stated above,
collective bargaining 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 of service, and other working conditions. It must be
presumed that when the respondent's employees chose the Union as
their representative for the purposes of collective bargaining they did
so for the purpose of having it make a collective agreement for them
with the respondent. Employees' designation of a collective bar-
gaining representative and the Board's certification thereof would be
futile and meaningless, could an employer, shortly thereafter, at any
designated stage of the bargaining procedure; demand proof that the
exclusive representative was acting in accordance with the desires
of the employees. By such demand the employer would refuse to
grant the exclusive representative of his employees that recognition
to which under the Act it is entitled.
We ' find that the respondent, by its demand that any agreement
reached between it and the Union be ratified by a vote of all its em-
ployees, whether or not members of the Union, refused to bargain
collectively with the Union as the representative of its employees
in an appropriate unit in respect to rates of pay, wages, hours of
employment, and other conditions of employment.
The respondent, by insisting upon employee ratification of the
Union's acts, as set forth above, of necessity discredited the Union
so as to discourage membership therein and the designation thereof,
by employees, as their bargaining representative. We find that by
the above refusals to bargain the respondent has interfered with,
UNION MANUFACTURING COMPANY, INC. 1307
restrained , and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
B. Interference, restraint, and coercion
Prior to September 14, 1939, the respondent had customarily sold
coal to its employees, obtaining payment therefor by weekly pay
deductions. On December 13, 1939, the Union's shop committee met
with Lamb at the plant. During the meeting the Union's ability
to call and maintain a strike was questioned by Lamb, and Frank
Barker, a member of the union committee, said, "If we go out, the
mill will rot before we return if we don't come to terms." On De-
cember 14 the respondent posted a notice to •its employees and on
December 15 attached similar notices, to their pay checks. These
notices referred to Barker's statement, suggested that the employees
circulate a petition in opposition to a strike, and stated that "with
this strike pending we simply cannot afford to sell coal on time."
These notices, posted in the midst of the Union's attempted bargain-
ing negotiations with the respondent, at a time when there was no
strike pending and no strike vote had been taken by the Union, dis-
paraged the Union by indicating to the employees that dire conse-
quences, such as their inability to buy coal on credit, resulted from
their concerted activities. Such• disparagement of necessity dis-
couraged membership in the Union.
On January 19, 1940, the respondent circulated among its employees
the memorandum referred to in Section III A 3 above. This memo-
randum contained minutes of a conference held on January 12 between
the respondent and a union committee. As stated above, the memoran-
dum indicated the respondent's intention to deal with its employees
either individually or collectively but regardless of the Union and its
status as the employees' exclusive bargaining representative. Al-
though Earnhardt was not present at the meeting discussed therein,
the memorandum attributes certain remarks to him and indicates that
he considered union dues "the all important thing." The memoran-
dum, circulated by the respondent at a time when, it purported to be
bargaining with the Union, clearly intimated to the employees that
the union leaders lacked sincerity and that they were motivated prin-
cipally by self-interest.
We find that, by the foregoing acts and statements, the respondent
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section III
above, occurring in connection with the operations of the respondent
1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
described in, Section I above, have a close, intimate ,- and substantial
relation to trade, traffic , and commerce among the several States and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices , we shall order it to cease and desist therefrom. In
addition , we shall order the respondent to take certain affirmative
action which we find necessary to effectuate the policies of the Act.
We have found that at all times since September 29, 1939, the Union
was and is the exclusive representative of the employees in the appro-
priate unit.` We have also found that the respondent refused 'to bar-
gain with the Union as such representative . In order to effectuate
the policies of the Act, we shall order the respondent to bargain with
the Union as the representative of its employees in the appropriate
unit.
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 is a labor organization within
the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining , and coercing its employees in
the exercise of the rights , guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair ,labor practices,
within the meaning of Section 8 (1) of the Act.
3. The production and maintenance employees of the respondent,
exclusive of supervisory and- clerical employees , at all times material
herein constituted and now constitute a unit appropriate for the pur-
poses of collective bargaining , within the meaning of Section 9 (b)
of the Act.
4. Textile Workers Union of America was on September 29, 1939,
and at all times thereafter has been the exclusive representative 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. By refusing to bargain collectively' with Textile Workers Union
of America as the exclusive representative of its employees in the
appropriate unit, the respondent has engaged in and is engaging in
unf air 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.
UNION MANUFACTURING COMPANY, INC. 1309
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 respondent,
Union Manufacturing Company, Inc., Union Point, Georgia, and its
officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Textile Workers Union
of America as the exclusive representative of its production and main-
tenance employees, exclusive of supervisory and clerical employees;
(b) In'any other manner interfering with, restraining, or coercing
its employees in the exercise of of their right to self-organization, to
form, join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, or to engage in concerted activi-
ties for the purposes 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 as the exclusive representative of its production and main-
tenance employees, exclusive of supervisory and clerical employees;
(b) Post immediately in conspicuous places at its plant, and main-
tain for a period of at least sixty (60) consecutive days from the
date of posting, notices to its employees stating : (1) that the re-
spondent will not engage in the conduct from which it is ordered to
cease and desist in paragraphs 1 (a) and (b) of this Order; and (2)
that the- respondent will take the affirmative action set forth in
paragraph 2 (a) of this Order;
(c) Notify the Regional Director for the Tenth Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
I