Dixie Manufacturing Co., Inc.

3'nithe-'Matter ,O'f Dix,= MVI'ANUFACTURING COMPANY,'II^NC. am,d AMAL- GA-MATED `CLOTHING WORKERS OF AMERICA, C. I. 10. .Case No. 10-C-1,538.-Decided September 15, 1948 DECISION AND ORDER On May 2, 1947, Trial Examiner C. W. Whittemore" issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in,the copy of the Intermediate Report attached "hereto? Thereafter, the Respondent filed exceptions and a supporting brief. . The Board 2 has reviewed the rulings of the Trial Examiner and, finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the, exceptions and brief, and the entire record in the case, and hereby adopts the •fuidings, conclusions, and recommendations of the Trial Examiner with .the additions and modifications hereinafter set forth.3 1. The Trial Examiner found that there was danger that the, Respondent, because of the unfair labor practices which it had com- mitted, would commit still other unfair labor practices; he therefore, recommended that the Respondent cease and desist from in any man- ner violating Section 8 (1). Particularly in view of the absence of exceptions in this respect, we agree. We further find that the Those provisions of Section 8 (1), (3), and ( 5) of the National Labor Relations Act,, which the Trial Examiner found were violated herein , are continued in Section 8 (a) (1),, 8 (a) (3), and 8 ( a) (5), of the Act, as amended by the Labor Management Relations Act, 1947. 2 Pursuant to the provisions of Section 3 (b) of the Act , the Board has delegated its powers in connection with this case to a three -man panel consisting of the undersigned Board Members [ Chairman Herzog and Members Murdock and Gray] 3 Based upon the evidence adduced at the hearing, we make the following corrections in the Trial Examiner' s findings of fact The general wage increase announced by P bi, French . Respondent ' s vice president , (luring the September 1 1945 , conference had been put into effect at Plant No 2 on June 24 . 1943 Attorney Roberts ' unequivocal statement to the Union s representative that the Respondent would never sign a contract with the C I 0 was made on January 10, 1946 , and not in October 1945. The foregoing corrected_ findings do not affect our resolution of the issues of this case 79 N. L. R B, No. 87. ' 645 809095-49-vol 79-42 ,646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent, by various threats to close the plant if the Union de- manded a pay raise, as set forth in the Intermediate Report, independ- ently violated Section 8 (1) of the Act.4 2. The general appropriateness of the bargaining unit herein was determined in the Board's previous decision in the 1944 representa- tion case. No issue with respect to such unit has been raised in this proceeding. We affirm that determination, noting that the extent of employee organization was not and is not the "controlling" factor.; However, we shall exclude watchmen from the unit, because of the -provisions of Section 9 (b) (3) of the Act, as amended .6 We find that all production and maintenance employees of the Respondent at Plant No. 2, excluding watchmen and supervisors, con- stitute a unit appropriate, for the purpose of collective bargaining -within the meaning of Section 9 (b) of the Act. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Dixie Manufac- turing Company, Inc., Columbia, Tennessee, and its officers; agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with Amalgamated Clothing Workers of America, C. I. 0., as the exclusive representative of all its production and maintenance employees at Plant No. 2, excluding watchmen and supervisors; (b) Discouraging membership in Amalgamated Clothing Workers of America, C. I. 0., or any other labor organization, by discharging or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of their employment; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Amalgamated Clothing Workers 4Atlas Underwear Company v N L R B, 116 F (2d) 1020, 102.3 (C C. A 6) See also N. L. it. B. v. Asheville Hosiery Co, 108 F ( 2d) 288 , 291, 292 (C C A 4) ; N L R B. v Blair Quarries, Inc, 152 F. ( 2d) 25, 26 (C. C. A. 4) ; N. L. it. B. v W. E. Lipshutz, 149 F. (2d) 141 , 142 (C. C A 5) 5 The Board stated ( 54 N. L. R. B. 384, 386) In view of the extent of employee organization , the physical and organizational separation of the plants, and the absence of substantial interchange of employees between the plants, we are of the opinion that the employees of Plant No . 2 alone, at the present time constitute an appropriate unit. "Matter of C. V Hill & Company, Inc., 76 N. L R B. 158. See Matter of Marshall and Bruce Company, 75 N. L. R. B 90. 11 It_ DIXIE ' MANUFACTURING COMPANY, INC. 647 of America, C. I. 0., or any other labor organization,, to bargain 'collectively ,through representatives of their own, choosing, and to engage in other.concerted activities for the purpose of collective bar- gaining or other mutual aid,or protection, as guaranteed in Section 7 'of the Act., 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively; with Amalgamated Cloth- ing Workers of America, C. I. 0., as the exclusive representative of all its employees in the above-described appropriate unit, and if an understanding is reached, embody such understai^iding in a signed agreement ; - (b) Offer to - Emma Kennedy immediate and full reinstatement to her former or a substantially equivalent position, without prejudice to her seniority or other rights and privileges; (c) Make whole Emma Kennedy for any loss of pay she may have suffered by reason of the discrimination against her, by pay- ment to her of a sum of money equal to that which she normally would have earned as wages from the date of her discharge to the date of the Respondent's offer of reinstatement, less her net earnings during said period; (d) Post,at Plants Nos. 1 and 2, in Columbia, Tennessee, copies of the notice attached hereto and marked "Appendix A." 7 Copies of such notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by the Respondent's repre- sentative, be posted by the Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days there- after, • in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material; (e) Notify the Regional Director for the Tenth Region in writ- ing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : 7In the event that this Order is enforced by decree of a Circuit Court of Appeals, there shall be inserted in the notice, before the words • `A DECISION AND ORDER," the words : "`A DECREE OF THE UNITED STATES CIRCUIT COURT OF APPEALS ENFORCING " 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any, manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist AMALGAMATED CLOTH- ING WORKERS OF AMERICA, C. I. 0. or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid,or protection. WE WILL OFFER to Emma Kennedy immediate and full rein- statement to her former or a substantially equivalent position without prejudice to any seniority,or other rights and privileges previously enjoyed, and make her whole for any loss of pay suf- fered as a result of the discrimination. WE WILL BARGAIN collectively upon request with the above- named union as the exclusive'representative of all employees in the bargaining unit described herein with respect to'wages, rates of pay, hours of employment, and other conditions of employ- ment, and if an understanding is reached, embody such under- standing in a signed agreement. The bargaining unit is : All production and maintenance employees at Plant No. 2, excluding watchmen and supervisors All our employees are free to become or remain members of the above-named union or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of mem- bership in or activity on behalf of any such labor organization. DIXIE MANUFACTURING COMPANY, INC., Employer. By ------------------------------------------ Dated------------- (Representative ) ( Title) This notice must remain posted for 60 clays from the date -hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT T T. Puidon?, for the Board A. H. Roberts , Ji., and Carniack Cochran, of Nashville. Tenn , for the re- spondent. Harold S. Marthenke , of Nashville . Tenn .,for the Union. -STATEMENT OF THE CASE Upon a third amended charge filed on February 17. 1947, by Amalgamated Clothing Workers of•America,-CIO, herein called the Union, the National.Labor DIXIE MANUFACTURING COMPANY, INC . 649 Relations Board, herein called the Board, by its Regional Director for the Tenth Region (Atlanta, Georgia), issued its complaint dated February IT, 1947, against Dixie Manufacturing Company, Inc., Columbia, Tennessee, herein called the re- spondent: The complaint alleged that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (3) 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, the ,third amended charge, and a notice of hearing were served upon the respondent and the Union With respect to the unfair labor practices the complaint alleged in substance: (1) that the respondent violated Section 3 (1) and (3) of the Act by discharging and failing to reinstate employee Emma Kennedy, on January 24, 1944, because ,of her Union activities; and (2) that the respondent violated Section 8 (1) .and (5) of the Act (a) by refusing to bargain with the Union from January 28, 1944, to the present time. although at all such times the Union was the repre- sentative for the purposes of collective bargaining of all employees in a unit found appropriate by the Board for such purposes: (b) by unilaterally granting wage increases; and (c) by vilifying the Union and warning its employees to refrain from assisting the Union. In its answer, filed March 5, 1947, the respondent denied generally its corn- -mission of the unfair labor practices alleged in the complaint, and made certain affirmative allegations discussed hereinafter. Pursuant to notice, a hearing was held from March 24 to 28, 1947, inclusive, :at Columbia, Tennessee, before the undersigned, the Trial Examiner duly desig- nated by the Chief Trial Examiner The Board and the respondent appeared by counsel, and the Union by a representative. All parties participated in the hear- ing, and were aftorded full opportunity to be heard, to examine and cross-examine -witnesses, and to introduce evidence hearing upon the issues " Al the opening of the hearing, counsel for the respondent filed an amended' answer which alleged, in substance, that the Board was without jurisdiction as to matters involving Plant No. 1 since the only collective bargaining unit certi- fied by the Board was in Plant No. 2. The Trial Examiner deified a motion by counsel for the Board to strike from the amended answer that portion alleging that the Board was without jurisdiction in Plant No. 11 At the end of the hearing the Trial Examiner reserved ruling upon a motion .made by counsel for the Board to include P M. French, vice president of the respondent, as a named individual in any remedial order recommended by the Trial Examiner in the Intermediate Report. The motion is now denied. Also at the end of the hearing the Trial Examiner granted a joint motion, made by counsel for the Board and counsel for the respondent, to conform the pleadings' to the proof adduced as to dates, spelling of names, etc. At the end of the hearing the Trial Examiner denied a motion made by coun- sel for the respondent to strike all evidence, and to dismiss all allegations of the complaint, concerning employee Kennedy, basing the motion upon the contention that an undue lapse of time had occurred since the alleged discharge and refusal to reinstate.'. i The Trial Examiner finds, however, that the allegation of lack of jurisdiction is wholly without merit. 2In opposing the motion ,, counsel for the Board introduced into evidence an amended charge filed in November 1944, alleging the discriminatory discharge of this employee, and a letter to the respondent dated January 11, 1945, from the Regional 'Office notitying the respondent of this allegation. 650 DECISIONS OF .NATIONAL LABOR RELATIONS BOARD The hearing was closed after oral argument before the Trial Examiner by counsel for the Board and the Union representative. Counsel for the respondent waived oral argument, but thereafter filed a brief with the Trial Examiner. Al- though informed of this privilege, no counsel filed with the Trial Examiner pro- posed findings of fact and conclusions of law. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent, Dixie Manufacturing Company, Inc., is a Tennessee corpora- tion having its principal office, place of business and two plants, known as Plant No. 1 and Plant No. 2, at Columbia, Tennessee, where it is engaged in the manu- facture, sale and distribution of pants, overalls and related products. In the conduct of its business and in the operation of its plants, the respondent causes large quantities of raw materials to be purchased and transported from and through States of the United States other than Tennessee to its Plants Nos. 1 and 2; and large quantities of the products manufactured by it are sold, dis- tributed and transported through and into States of, the United States other than Tennessee. The respondent manufactures its products on a cut-make-and- trim basis for Washington Manufacturing Company of Nashville, Tennessee The respondent admits that it is engaged in interstate commerce, and that its business affects commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED Amalgamated Clothing Workers of America, CIO, is a labor organization admitting to membership employees of the respondent at Plants Nos. 1 and 2. III. THE UNFAIR LABOR PRACTICES A. The respondent's refusal to bargain with the Union 1. The Board's certification of the Union On January 19, 1944, a Board election was held at the respondent's Plant No. 2. The Union was chosen as the collective bargaining representative by a large majority of the employees, the ballot tally being 134 for the Union and 74 against. On January 28, the Board issued its "Certification of Representatives," certifying that the Union had been : . . . designated and selected by a majority of all production and mainte- nance employees at Plant No. 2 of Dixie Manufacturing Company, Inc, Columbia, Tennessee, excluding supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, as their representatives for the purposes of collective bargaining, and that, pursuant to Section 9 (a) of the Act, the said organization is the exclusive representative of all such employees for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. 3 See 54 N. L. R. B. 384. DIXIE MANUFACTURING COMPANY, INC. 651 2. History of negotiations Also on January 19, 1944, Carl Albrecht, then Southern Director of the Union, wrote to G. L Hedrick, president of the respondent, asking for a conference with its officials for the purpose of negotiating a "working and wage agreement." The next day the respondent's Columbia attorney replied to Albrecht's letter, stating that the request was being forwarded to P. M French, vice president and a direc- tor, who would serve as the respondent's representative in negotiations. On January 27, A H. Roberts, Jr, Nashville attorney for the respondent and one of the attorneys of record for the respondent in these proceedings, informed Albrecht by letter that French would be away on a business trip for several days and suggested February 9 as the date for the conference Albrecht agreed, and in- formed Roberts that before then the Union would submit a proposed contract for consideration at the conference The Union's proposed contract was received by Roberts on February 5 Representatives of the respondent and of the Union met in Nashville, Tennes- see, on February 9. Provisions in the Union's proposed agreement were dis- cussed. At the opening of the conference the respondent announced that its, final agreement, to any provisions tentatively acceptable to it, was to be con- tingent upon the signing of a complete contract. The respondent declined to, discuss the proposed articles relating to vacations or wages. and objected to many other provisions. Following this conference the Union requested the assistance of the U S. Conciliation Service in further negotiations. A second conference was held in Columbia, on February 11, at which the re- spondent's counterproposals were considered Although no agreement was reached, the method of paying wages was discussed. Tentative agreement was, attained on a few minor items, but the respondent maintained its position that such tentative agreement would not be final until an entire contract was signed A third conference was held in Nashville on February 16 and 18. A Concihu- tion Commissioner attended. Both the respondent and the Union submitted pro- posals No agreement was reached on the majority of the articles. French declared that all other issues were dependent upon the wage question, and in- sisted that the company would not be in a position to discuss this matter until an auditor's report had been received. On February 24, French came to Plant No 2, had the power cut off, called all employees to one part of the factory, and in a short speech told them, in effect, that the company could not afford to grant a wage increase, and that if the Union, dent anded more wages for the employees, the plant would -be closed and the machinery moved elsewhere. A fourth conterence was held in Nashville on February 25. The Commis- sioner's efforts to resolve the differences were unsuccessful The company main- tained the stand that no wage increase was possible, and claimed that it had lost $80,000 in 1943 It agreed, however, that the entire negotiation dispute should be submitted to the National War Labor Board On the day following this conference there appeared, in one of the two Columbia newspapers, the first of a series of several articles, published in the same and other newspapers and extending over a period of more than a month, purporting to quote the respondent's officials as threatening to close or "liquidate" the plant if wage increases were demanded by the Union. A relevant paragraph from the Columbia Daily Herald of March 14 is quoted : Pat French',. vice, president and liquidating agent for the company, was in Columbia yesterday , and said that if the workers at the two plants make X652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wage demands on the company at this time it would have to close both plants and liquidate the stock , sell the machinery and move from Columbia. The employees ' negotiating committee informed the Union officials that these, newspaper threats were causing concern to a number of employees and some were expressing a desire to quit the Union . At about the same time two employees who had served as company observers , at the Board election in January, cir-, •culated throughout Plant No. 2 , during working hours and in the presence of -foremen, a "petition" stating in substance that its signers did not want a wage increase because it would result in the closing of the plant . The "petition!' was submitted by a Columbia attorney to, but was rejected by, the War Labor -Board at a hearing in April. On March 16 Albrecht wrote to French , quoted in the newspaper article described above, asking if the reports were true On the same day the Union 'filed with the Board charges of unfair labor practices against the respondent and requested that, in view of the threats in the press , the election then pending for employees in Plant No . 1 be postponed.' Receipt of the Union's letter of March 16 to the respondent was acknowledged on March 30 by Attorney Roberts, but no reply to the specific inquiry about closing of the plants was ever received by the Union - As a witness in these proceedings , French admitted that he had never asked any of the newspapers to retract any printed statement . Although at one point in his testimony French flatly denied that he had ever talked to newspaper re- porters about matters involving , the Dixie Manufacturing Company , when con- fronted with a statement purported to have been written by the reporter who had. prepared the article of March 14 , quoted above , French admitted that he "wouldn't say " that the statement was "incorrect." The statement reads, in part I talked with both Mr. Fite and Mr. Pat French about the closing of the Dixie plants and wrote the news story which appeared in the Columbia, Herald .on March 14, 1944 from information that they gave me. In view of undisputed testimony establishing that French made almost identical threats to all employees at Plant No 2 on February 24; it is reasonable to believe, and the Trial Examiner finds. that he was likewise responsible for the items ap- -pearing in the Columbia newspapers threatening that the plants would be closed if wage increases were demanded. On March 8 the negotiating parties were informed that the case had beeni certified to the Natihnal War Labor Board. Despite the respondent's adamant contention at previous conferences, and its threats appearing in the newspapers. that it could not and" would not grant wage Increases , also on March 3 the Union was notified by the Wage Stabilization Director , Region IV of the 'Re- gional War Labor Board , that the respondent had filed an application for a voluntary wage increase. This unilateral request for permission to raise wages' had been made by the respondent on or about January 28,' more than a week after the Union had won the election , and after the Union had requested the first negotiating conference to draft a wage agreement. On March 10 the Union informed the Wage Stabilization Director that it had been certified by the Board as the bargaining representative for all classifica- 4 No election has been held at Plant No., 1. In March 1945, the Union formally with- -drew its petition relating to this plant. 5 This, date is 'fixed by an unchallenged copy of a letter, dated March 8, 1944, from the Wage , Stabilization Director to the . respondent, which refers to a letter of January 28, from the respondent and its wage adjustment application. DIXIE MANUFACTURING COMPANY, INC. 653 tions. except two, listed in the company's wage application, and, in order that- the War Labor Board's requirements might be complied with, requested that the respondent's application be forwarded to it. A hearing was held before a panel of the Regional War Labor Board in April on the negotiating dispute. On May 29 the Union received a copy of a letter sent to the respondent by the Panel Chairman, in which it was noted that al- though the panel had received from the respondent its "profit and loss state- ments, balance sheet and another statement purporting to show the effect from .the Company's standpoint of an increase of 25% in wages," it would need certain additional information. The Union thereupon communicated with the respondent, pointing out that, although previously requested, copies of the in- formation furnished to the panel by the respondent had not yet been received by the Union. as required by War Labor Board procedure. On May 30 a War Labor- Board official wired to,the respondent, demanding that procedure be followed and the information supplied to the Union. On May 31, the respondent complied with this demand On September 15 the Panel issued its findings and recommendations. Among other things, it was recommended that the respondent and the Union adopt the- contract drafted by the Panel Both the respondent and the Union filed objec- tions to parts of the recommendations. On December 6, 1944, the Union formally requested the respondent to resume collective bargaining negotiations By letter of December 12 the respondent's- Columbia counsel refused to confer with the Union, basing the refusal upon the contention that the War Labor Board Directive, relating to the dispute hereto- fore described, had been issued on,December 9, and that the respondent intended ,to appeal from it. On January 12, 1945, having received complaints from employees concerned, the Union requested from the respondent information about production quotas; vn government orders required of employees, and about methods used to calculate individual earnings on each operation. stating that it desired such information for collective bargaining purposes. No reply was received, and on January 30, the Union repeated'its request. In the latter communication the Union explained that the information was needed "in order that the collective bargaining process- might 'be real and functioning." No reply was received. The request was re- • peated on February 6. On February 9. Attorney Roberts replied that the informa- tion was contained in the transcript of the hearing before the War Labor Board panel, and,that the transcript was available to the Union. On February 12, the ,Union countered with the declaration that no discussion on production require- ments or methods of calculating individual earnings had taken place at the hear- ing, and that the information needed was not in the record. Request for the- information was-again made On February 20, Roberts replied that the respond- ent had no information on production requirements, but made no comment upon the whereabouts of the other requested information. On February 27, the Union renewed its demand. No reply was received. On March 17, the Union again • asked for the information. On March 24, Roberts replied that "some of the • management" were out of town, but that he hoped to have an answer the follow- , ing week. On April 9. no word from Roberts having arrived, the Union again solicited the information No reply was received. On June 11, the Union again wrote to Roberts about the matter, pointing out that in'the event no answer materialized, it must conclude that the respondent was refusing to bargain. Finally, on June 27, nearly 6 months after the original request was made, Roberts -again referred the-Union to the transcript of the panel hearing. The attorney :654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD called attention specifically to ii portion of the transcript beginning at page 226. The entire transcript referred to was introduced into evidence in these proceed- ings. At the Board hearing a representative of the Union testified that it had never received the information in question, and that it did not appear in the panel transcript. The Trial Examiner requested Roberts, one of counsel for the respondent, to cite that portion of the transcript which he considered to contain the information desired by the Union. Although he promised to do so, Roberts failed to comply. The Trial Examiner has carefully examined the transcript of the panel hearing, but does not find information therein which appears reason- 'ably to satisfy the Union's request. The Trial Examiner concludes and finds that on or about January 12, 1945, and at all times thereafter, the respondent refused to provide the Union with information concerning production requirements for .employees , and methods used to calculate individual earnings on each operation. On June 28 , the Union asked the respondent , by letters to Hedrick and to Roberts, if it would agree to grant a week's vacation with pay to employees of Plant No. 2, and to meet with the Union concerning the working out of details. The respondent made no reply. On July 5, the Union requested a negotiating conference with the respondent, asking that consideration be given to specific proposals , including the subjects of wage increases and vacations . On July 13, the respondent declined to confer on these matters , claiming that the question of an entire contract dispute was still pending before the War Labor Board. On July 31 , the Union renewed its request for a meeting, stating that only one of the six points raised in its letter of .July 5 was involved in the War Labor Board's Regional order, and that the National War Labor Board's Interim Order, issued July 5, required that , the parties incorporate terms of the Order into a written agreement . The Union further requested certain information concerning a new system of piece-work payment which had been inaugurated at Plant No. 2, pointing out that it had been put into effect without consultation with the Union . In the same letter the Union asked that a meeting be held on August 4. On August 2, Roberts replied only that French was "out of town," and that further comment would await his return. On August 6, the Union asked that August 11 be set as the conference date, whether French was available or not. The Union further pointed out that its request for piece -work rate and production information , necessary for an intelligent negotiation of wage terms in an agreement , had not been complied with . On August 9, Roberts answered that neither French nor Hedrick would be available for a conference on August 11. Roberts suggested that the Union forward to him any proposals it wished .to, submit. On August 16, the Union again sought a conference , this time to be scheduled for August 25. Although Roberts at first agreed to this date , he later asked for postponement until September 1. Having repeatedly refused to meet or having postponed scheduled meetings since July 5, 1945, the respondent finally met with the Union on September 1. The Union inquired as to whether or not the company was willing to comply with the directives of the Regional and National War Labor Boards. French replied that he was not sure the War Labor Board had finished issuing directives, and insisted that the Union submit written pro- posals based upon the directives . The Union agreed to do so if, at the same time, the company would do likewise. French refused, stating that it was the Union and not the company which was seeking an agreement. Dfii rig this -conference French announced that the company had put into effect a general DIXIE MANUFACTURING COMPANY, INC.. 655 wage increase at Plant No 2. This wage increase had been effectuated without any negotiations with the Union, although since early in 1944 the Union had sought to bargain for an increase. (As noted above, the respondent had ignored another specific request for a wage increase early in July 1945.) The conference closed after the Union agreed to submit a written contract proposal before the next conference, set for September 15. On September 12, the Union forwarded to the respondent a proposed contract. On September 14, the day before the scheduled conference, Roberts sent word to the Union that French would be "out of town," and the meeting did not take place. A meeting was held on September 22. The respondent objected to the first article of the Union's proposals-a recognition clause covering employees in the unit certified by the Board as appropriate. The respondent insisted that watch- men and machinists should be excluded, claiming that their work was of a super- visory nature. (Throughout the long history of negotiations, this was the first time that the respondent had raised this question. In fact, in the respondent's own counterproposal, discussed at the conference of February 7, 1944, the recogni- tion clause contains the wording: "including machinists, watchmen . . .") Vari- ous items of the proposed contract were discussed On most of them no agree- ment was reached The respondent again refused to discuss the question of wages. The Union again requested information concerning the respondent's methods of piece and time work wage payments. French told the Union to put their request for such information in writing On September 26, the Union submitted its written request for detailed informa- tion. On October 8, Roberts replied, stating that some of the information asked for was confidential and the Union was "not entitled" to it, and that other infor- mation would require from 60 to 90 days to compile, but would be furnished. Although the Union thereafter repeatedly requested this information, the respond- ent has never supplied it-either the portion declared confidential by Roberts or the part which he agreed to furnish. The Trial Exanunei considers it unnecessary to determine the merit of the respondent's claim, in its letter of October 8, that certain information requested was "confidential." As to the items of information which the respondent agreed to furnish-including a schedule of time work rates, methods used to calculate piece work earnings, and a description of incentive bonuses in effect, the Trial Examiner finds that, by failing to carry out its agreement, in effect the respondent refused to piovide the Union with information requisite for collective bargaining. Conferences were held on October 24, November 6, and December 4. No agree- ment was reached on any major point On the last-mentioned date it was agreed to meet again on December 14. After two postponements caused by the respond- ent, the meeting was finally held on-January 10, 1946 At this meeting. Attorney Roberts bluntly informed the Union representative that the respondent would not sign a contract with the C. I. O. (As noted heretofore, the Union is a C I O. affiliate.) When the Union representative remarked that it appeared that they had been wasting their time, Roberts replied, "Well, you take it for what it's worth." 6 On March 14, the Union informed the respondent that it understood that au- other wage increase had been given to employees at Plant No. 2, and requested information as to details. At a conference on March 19, the respondent admitted that it had granted a substantial pay raise, and had inaugurated a paid vacation plan. Although the Union had been endeavoring to negotiate with the respondent aim Roberts, one 'of counsel for the respondent in these proceedings , did not deny making this' statement. 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for more than 2 years, on both - subjects, the respondent, without consulting or negotiating with the Union, granted the wage-increase and a vacation plan Having put into effect a wage -increase, on or about March 11, Hedrick filed with the National War Labor Board on March 26. an application for its'approval by that Board.' On the standard form for such application (Form NWLB 10) Hedrick falsely stated that there was no 'duly recognized or certified labor 'organization which represents any of the,employees involved " The parties again met on March 27, when the Union snbiiiitted revised pro- posals The respondent made no comment upon the proposals. but through its attorney, Cochran, informed the Union representative that a "serious" question had arisen, making continued negotiations"`unfeasible " Cochran explained that management had received a "petition" from employees to the effect that they no longer wished the Union to represent them. The Union representative be- came angry, accused the respondent's representatives of not bargaining in good faith, and pointed out that the Union had long before this been certified by the Board. Finally the respondent agreed to meet again on April 9. On April 8, however, the respondent wrote to the Union, declining to meet the following day, stating that it had received word from the Tenth Regional Office of the Board to the effect that 'a Field Examiner was being assigned to investigate ^a,petition. "for certification submitted by the respondent to the Board. On April 9, the Union insisted that the respondent continue negotiations, and that no question of representation existed. On April 10. Roberts refused to meet with the Union until the Board had acted upon its petition. In his letter he added: Of course, if the decision of the Board is favorable to you. the Company will resume negotiations, since it has never been, and is not now, its intention not to bargain in good faith with the proper representatives of the majority of the employees. Since April 10. 1946. the respondent has refused to meet and to negotiate with the.Union. Despite the fact that the respondent filed no appeal with the Board from the Regional Director's notification, dated February 12, 1947, that no further action on the respondent's petition, in Case No 10-RE-19. was warranted, thereby ruling, in effect, against the respondent, it has declined to comply with the- ,above-quoted promise made by Roberts. 3 The Union's continued representation of a majority of the employees In its answer , the respondent alleges : it is denied that said Union should be held to be the exclusive, bargain- ing representative for said employees at this time. for the reason that recently, and on . . . . 1946. respondent was presented with a petition signed by more than 100 employees out of a total of about . . employees in said Plant No. 2, stating, in effect, that said large majority of employees did not desire to be represented longer by said Union . If, as the answer implies. there is in existence a petition received "recently" ,by the respondent, no evidence regal ding it was offei ed at the hearing As,to the'petition allegedly received on " . . 1946," the Trial Examiner assumes that the respondent'refers to a document upon which-it based' its iefusal to Meet-with ithe Union on and'after March X27. 1946. 1 1 1 The respondent's claim iegarding representation, raised on March 27, 1946, was 'based,' accoi ding'to 13edri'I 'b'testixnoi'iy, upon' a ' list of names, all in the same DIXIE MANUFACTURING COMPANY, INC. 657 handwriting, which was handed to him by a few girls shortly before' March 271 At the top of- the sheet, in the same handwriting, appeared the legend : We are satisfied with our present working conditions and wages. We do not need or want any help from any Labor Organization nor their leaders. Hedrick made no investigation to determine whether this was a spurious list or not, but turned it over at once to his counsel for "appropriate action." So far, as the record shows, it was solely upon this document, obviously prepared by a single-4ndisadual, that the respondent based its refusal to. confer with the Union on 'arch 27 and April 8, and also its petition to the Board. It was not until "two or three.days before" April 23, 1946, according to a statement made by Attorney Roberts at the hearing, that the respondent obtained what it claims to be a paper signed by more than one employee At the hearing the respondent's counsel offered in evidence this latter document, which he stated had been re- ceived from a Columbia attorney No evidence was adduced by the respondent to support its claims, either that it was, in fact, a petition to the respondent, or that it bore the genuine signatures of a single employee or person. The offered document was rejected. The Trial Examiner finds no merit in the respondent's contention that. because of the "petition." the Union no longer represents the employees. Even had a genuine petition been presented, to the respondent or at the hearing, the facts found heretofore would have necessitated the conclusion that any defection of union adherence had been induced by the respondent's unfair labor practices.' In summary, the Trial Examiner concludes and finds that on and at all times, since January 19, 1944, the Union has-been, and is, the duly designated bargain- ing representative of a nl{ijorjty, of ,the respondent's employees, in the,appropriate unit described in Section III A, 1, above, and that, pursuant to the provision of Section 9 (a) of the Act, the. Union has been, and now is, the exclusive repre- sentative of all the employees in the aforesaid unit, for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. 4 Conclusions as to the refusal to bargain The history of negotiations between the respondent and the Union, summarized in, most part from unchallenged testimony and documentary evidence adduced by the Board, permits. no other single conclusion but that the respondent, from January 1944, has consistently and flagrantly refused to bargain in good faith. Almost immediately after,,,the Union had been chosen by the employees as their bargaining agency, and after the Union had requested a conference to draft a wage agreement, the respondent took its first steps along the road, which it followed thereafter without deviation, of thwarting its employees' expressed desires and of discouraging their membership in the Union. It applied for permission to grant a wage increase without consulting or informing the-Union Having taken this unilateral tactical action, frowned upon by the Supreme. 7 See 1%1edo Photo Supply Corp., 321 U. S. 673, where the Supreme Court said- Petitioner cannot as justification for its refusal to bargain with the union, set up the defection of union members which it had induced by unfair labor practices, even though the result was that the union no longer had the support of a majority. It cannot thus, by its own action, disestablish the union as the bargaining representative ,of the-employees, previously designated as such of their ownrfree,will. 658 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD Court,' it then not only refused to discuss wages with the Union but threatened its employees , indirectly through the local press and directly through French, that if the Union asked for more wages the plant would be dismantled. The coercive effect of French's threats was not long delayed ; a group of employees, -plainly ignorant of the fact that their employer himself had moved to increase their wages , forwarded a request to the National War Labor Board not to increase wages for fear they would lose their jobs Nor was this the only instance of the respondent 's circumvention of the require- ments of the Act in respect to wages. Throughout the long period of negotiations the Union repeatedly tried in vain to negotiate a wage increase and a vacation plan with the respondent . Nevertheless the respondent granted wage increases in June 1945, March 1946, and October 1946, in each case without consulting or - negotiating with the Union . And in March 1946 , the respondent announced a paid vacation plan. Each unilateral grant by the respondent constituted a refusal to bargain.' In another well-recognized field of negotiations the respondent failed in its obligations under the Act. It persistently refused to provide the Union with information, possessed by the respondent, relating to production requirements on Government orders, methods used to calculate individual earnings, pay rates, and incentive bonuses. At the hearing the respondent offered no defense for its arbitrary neglect of duty The Trial Examiner finds ( 1) that the above-noted information was necessary to the Union in order that it might adequately repre- sent the employees on the subject of wages , and (2 ) that the respondent's refusal to furnish such information constituted a refusal to bargain " Attorney Roberts' unequivocal statement to the Union representative in October 1945, that the respondent would never sign a contract with the C. I O. was also, in effect, a refusal to bargain. In their brief, Counsel for the respondent urged, in effect , that the respondent should not be held to have refused to bargain because, near the close of the hear- ing, ft offered to "resume negotiations" if the Board would withdraw the entire proceedings, including the case relating to Emma Kennedy's discharge , described below. The Trial Examiner finds the contention to be wholly without merit. The account of the respondent's dealing with the Union over the long period is replete with instances of its failure to keep negotiating appointments and of outright refusals even to meet with Union representatives . Thus in December 1944, it refused to meet with the Union , offering the invalid excuse that it in- tended to appeal from a War Labor Board directive . In July 1945, it again refused to confer, for similar reasons. On March 27, 1946, the respondent 8 See May Department Stores Co , 326 U. S 376, w here the Supreme Court said* Employer action to bring about changes in wage scales without consultation and negotiation with the certified representative of its employees cannot , we think, logi- cally or realistically, be distinguished from bargaining with individuals or minorities 9In Great Southern Trucking Co., 127 F. ( 2d) 180 , 186 (C C A 4) Cert . denied 317 U. S. 652 , the Court said . . Southern 's action regarding wage and paid vacation concessions, two of the most important elements of the employer -employee relationship , without prior agreement thereon by the Union and while negotiations were still in progress , consti- tuted an obvious attempt to settle unilaterally matters with respect to which Southern was under a statutory duty to deal with the Union . Such conduct itself constitutes a violation of Section 8 (5) of the Act 10 See Aluminum Ore Company, 131 F ( 2d) 485 ( C. C A. 7 ) Also, J. H Allison & Com- pany, 70 N L R B 377. "" DIXIE MANUFACTURING COMPANY, INC. 653 refused, and at all times theieafter has refused, to confer with the Union;, in the first instance advancing as a pretext its belief that the Union no longer represented a majority of the employees, and after February 1947, flagrantly repudiating,its own promise to negotiate further if the Board rejected its repre- sentation claims.. In summary, the Trial Examiner concludes and finds that, by its above- described conduct, the respondent, since January 28, 1944, has, refused and is refusing to bargain with the Union, and that by such action the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. B The discharge of Emma Kennedy 1. Events relevant to the discharge Emma Kennedy was first employed by the respondent in September 1941 and, except for brief lay-offs for reasons not established by the record, worked regu- larly at the respondent's Plant No. 1 until just before Christmas in 1943 She was a skilled and satisfactory garment worker, having had experience in several different operations. Before December 1943, she had been complimented on several occasions by Hedrick, the respondent's president, whose office was near her machine Early in December 1943, Kennedy became interested in the self-organizational efforts of employees at Plant No. 2. She met the Union organizer, obtained a supply of application cards from him, and began to distribute them for signature among her fellow-employees at Plant No. 1. Although some of the other girls helped to solicit signatures, she was the only employee to have a supply of the application cards. During December Kennedy and the Union organizer passed out Union litera- ture in front of the plant, in full view of Hedrick's office window. Although Hedrick had previously complimented her upon her work, after Kennedy became active in union' organization he avoided speaking to her. It is found that Hedrick was aware of her activities on behalf of the Union." On December 1S or 19, at about quitting time, Floorlady Dorothy Mayberry was standing by Kennedy's machine Kennedy opened her purse to powder her nose. Union cards in her purse were revealed Mayberry told Kennedy that she had better keep the cards in her pocketbook if she wanted her job.12 After the Christmas recess in 1943 Kennedy did not return to the plant until the latter part of January 1944. By another employee, however, on December 27, she sent and Hedrick received a doctor's certificate stating that she must be absent for about 30 days. Kennedy reported for work on January 24, 1944,13 but was informed by Hedrick that he had no work for her. Kennedy protested, and pointed out that thereto- 11 Hedrick denied changing his attitude toward Kennedy , and testified that he did not know she was active in the Union Hedrick 's unsupported testimony is unreliable As noted heretofore Hedrick falsely informed the National War Labor Board that no labor organization represented any of the employees at Plant No 2 12 The finding rests upon Kennedy's credible testimony Mayberry denied having made the statement or having seen Union cards in the employee's purse 13 The testimony cites both January 24 and January 28, as the date of her return. The Trial Examiner accepts January 24 because (1) it was Monday, the beginning of the work week ; ( 2) it was the date specified in the Amended Charge, filed by the Union in November 1944 , and (3 ) counsel for the respondent in their brief cite this as the date. i660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fore other, girls had been absent, without being sick, and had been permitted ,to resume work. Hedrick repeated that he had nothing for her, but would call her when there was work available. She left the plant, and was not recalled. In September 1944, she visited the plant and again asked Hedrick for work. He replied that he still had no employment for her. During this interview Hed- rick asked her if she did not think she had "done him wrong" by handing out -the union papers. Kennedy agreed; but said that if he would take her. back she would "stick to" him." She was not then, however, and has not sinee'been, re- instated. .. Kennedy was given a formal Separation Notice. This notice, signed by Hed= -rick, states, in part : ,On December 22, 1943 . . . We permanently cease to employ Emma Kennedy Opposite'the statement "Reason for Separation," appears "Lack of Woik " 2. The respondent's contentions as to the discharge In its original answer, signed by Hedrick, the respondent denied that it had .discharged and thereafter refused to reinstate Kennedy. Affirmatively, the same. answer alleged that she was one of about 30 employees whose services were "discontinued" in January 1944. In apparent support of this position. Hedrick testified at length concerning the remodeling of the factory building and the "changing over from what is known as straight lines'to progressive bundle system," it about Christmas time, 1943. Until this time, according to his testimony, there had been six units, or .groups, of girls making pants In each unit was one machine operator known-as' _a side-seamer. Two of these units, numbered 1 and 2, were on the first floor; Kennedy was the regular side-seamer on unit No. 2. Although Hedrick's testimony is confused on the point, it appears that when the first floor was remodeled, units 1 and 2 were combined, or merged, and moved to another floor 1' Thereafter, Hedrick testified, only five units, and -so only five side-seamers, were utilized. The clear implication of his testimony up to that point was that the change-over occurred while Kennedy was absent, and that when she returned, on January 24, her position and many others had been abolished. Later in his testimony Hedrick testified that all the girls displaced because of the merger of the two units, "who reported for work were used to the best of our ability" and transferred to other operations. In general terms, he testified that the total number of employees on the pay- roll during the week ending December 25 was 223, and for the week ending'' January 1, 205. For the week ending January 8, however, the total had again risen to 219. - He added that the total thereafter never exceeded 225. He pro- duced no credible evidence to show that any other employee, except Kennedy, was denied employment after the merger of the two units. Thus Hedrick's ' 14 Hedrick admitted that Kennedy visited him on this occasion, but denied having said anything to her about her. union activities. As found heretofore, Hedrick's unsupported testimony is unreliable 15 At one point Hedrick testified that "units 1 and 2 went out of existence " He also testified, "it became necessary to do away, with the two units on the first floor." He,later explained, however, and produced a document to show that in fact the two units; w,hrenr moved to another floor, were counted as one. DIXIE MANUFACTURING COMPANY, INC. 661 own testimony fails to support the allegation of the answer that "an entire unit of approximately thirty employees" was discontinued. Specifically as to Kennedy, Hedrick testified that there were "six regular side seamers" before Christmas, and thereafter five. A document produced at the hearing by Hedrick refutes this testimony. This document, purporting to show the names of side-seamers employed from October 1943 to June 1944, indicates that there were but five side-seamers employed during the week end. ing December 18,, and only four during the week ending December 25. Not until the week ending January 29,-the week at the beginning of which,Kennedy returned to the plant, were five side-seamers again employed. The same document shows that of the six regular side-seamers employed from October to early December, only two were engaged in this work in January and there- after. Of the remaining four regular side-seamers, one left her employment on December 11 and did not return until July 1944; another left on December 18 and returned at an undisclosed date to work at another operation ; and the other two (including Kennedy) left on or about December 25 and have not been reemployed. Thus this document, and his explanation of it, flatly re- futes the implications of Hedrick's testimony that Kennedy's position was discontinued after Christmas in 1943, and that there was no work for her thereafter as a side-seamer. On the contrary, the document shows that only two of the regular side-reamers were used, after Christmas, to fill the five positions available. According to Hedrick's testimony, the three vacancies were filled by transferring girls from other work One of these transfers was made the s,ime day that Kenne('y reported for work in January. Furthermore, Kennedy was experienced in operations other than that of a side-seamer. When, late in his testimony, Hedrick was requested to pro- duce a list of new employees hired in other operations since January 1944, counsel for the respondent moved to "correct" the answer and abandoned the original contention that there was no work for Kennedy after January 28, and that she had not been refused reinstatement. Counsel then advanced the claim that, because Kennedy had told Hedrick on January 24 that he could put her back to work if he wished to, Hedrick's "attitude" toward her changed and he decided not to employ her again because she "was not a satisfactory employee for that company." This belated shift in position has but feeble support in Hedrick's testimony. He quoted Kennedy as saying only that "I could put her back if I wished to do so," and "I could put her back to work but that I didn't want to." This mild protest seems not to warrant counsel's characterization of it as "abusive." 3. Conclusions as to the discharge In summary, it appears from the record of the hearing that the respondent would have the Board find merit in one or more of the following positions urged in the answer, in Hedrick's testimony, in statements of the respondent's counsel, and in the employee's Separation Notice • (1) that Kennedy was neither dis- charged nor refused reinstatement, but simply was one of 30 girls whose employment ceased in January 1944 because of an economic reduction in force; (2) that she NN as permanently laid off on December 22 for lack of work; (3) that she was denied reinstatement tenapoiarlly on January 24 for lack of work; and (4) that on and after January 24, she was permanently refused reinstatement because she protested that Hedrick could give her work if he wanted to In their brief filed with the Trial Examiner, however, having presumably reviewed 509095-49-vol 79-43 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the transcript, counsel for the respondent advance no specific reason for the failure to reemploy Kennedy, but rest their argument upon the contention that the Board failed to show discrimination, in the treatment of Kennedy, for Union activity. It is juridically established, as counsel state in their brief, that an employer may "discharge for no cause at all," although the Trial Examiner has never encountered, and finds difficult to imagine, an effect without a cause-particularly in the realm of employer-employee relations. In any event, until the brief the respondent did not urge "no cause"-but did urge many confused and con- tradictory reasons for its failure to place Kennedy at work. The Trial Examiner finds no merit in any of the respondent's contentions relating to Kennedy Their very multiplicity and contradictory nature defy reasonable belief, and lead inevitably to a search elsewhere for Hedrick's real reason for denying reinstatement to her on January 24 It is found that there was work available for Kennedy on January 24 and thereafter. Records submitted by Hedrick establish that Unit 2, in which Kennedy had regularly been employed until the Christmas recess, 'did not resume operation until sometime during the week ending January 29-at the earliest on January 24, the day Kennedy reported, and that another girl was transferred to this'' position. It is reasonably concluded that the failure to reinstate Kennedy on January 24 was discriminatory. The respondent's antipathy toward the Union was fully demonstrated at Plant No. 2, as previously described. The Trial Examiner is convinced, and finds, that Hedrick was well aware of and resented Kennedy's leadership in assisting the Union organizer and in distributing Union circulars at Plant No. 1. In this antipathy and resentment is found the real reason for the respondent's dis- criminatory failure to reinstate her upon her return from an illness. This failure was, in effect, a discharge It is therefore concluded and found that on January 24, 1944, the respondent discriminatorily discharged Emma Kennedy, in order to discourage membership in the Union, and thereby interfered with, restrained, and coerced employees in the exercise of rights guaranteed-by the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III, above, occurring in connection with the operations of the respondent as 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 ob- structing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in certain unfair labor prac- tices, the undersigned will recommend that it cease and desist therefrom and take certain affirmative action which the Trial Examiner'finds will effectuate the policies of the Act. It has been found that the respondent has refused to bargain with the Union as the representative of its employees in an appropriate unit. In order to effectuate the policies of the Act, the Trial Examiner will recommend that, upon request, the respondent bargain collectively with the Union as the exclusive representative of its employees in the appropriate unit in respect to rates of pay, wages, hours and other terms and conditions of employment. DIXIE MANUFACTURING COMPANY, INC. 663 The Trial Examiner has found that the respondent has discriminated against Emma Kennedy. It will therefore be recommended that the respondent offer her immediate and full reinstatement to her former or substantially equivalent position's without prejudice to her seniority or other rights and privileges, and that it make her whole for any loss of pay she may have suffered, by reason of the discrimination against her, by payment to her of a sum of money equivalent to that which she normally would have earned as wages from the date of her discharge to the date of offer of reinstatement, less her net earnings " during said period. In view of the unfair labor practices found to have been committed by the respondent at both plants, constituting violations of Section 8 (1), (3) and (5) of the Act, the Trial Examiner is of the opinion and finds that there is danger of ,the commission of other and additional unfair labor practices, since the viola- tions thus far engaged in by the respondent indicate an intent to interfere gen- erally with the rights of the employees as guaranteed by the Act. It will there- fore be recommended that the respondent cease and desist from in any manner interfering with, restraining, or coercing its employees in their right to self- organization.18 Upon the basis of the above findings of fact and upon the entire record in the case, the Trial Examiner makes the following : CONCLUSIONS or LAw 1. Amalgamated Clothing Workers of, America, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. All production and maintenance employees at Plant No. 2 of Dixie Manu- facturing Company, Inc., Columbia, Tennessee, excluding supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. Amalgamated Clothing Workers of America, CIO, was on January 19, 1944. and at all times thereafter has been the exclusive representative of all the employees in such unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By refusing to bargain collectively with Amalgamated Clothing Workers of America, CIO, as the exclusive bargaining representative of the employees in the appropriate unit, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (5) of the Act. 5. By discriminating in regard to the hire and tenure of employment of Emma Kennedy, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. fi. 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. 10 In accordance with the Board 's consistent interpretation of the term , the expression "former or substantially equivalent position " is intended to mean "former position iiherever possible , but if such position is no longer in existence, then to a substantially equivalent position " See Matter of The Chase National Bank of the City of New York, San Juan , Puerto Rico, Branch, 65 N. L R . B. 827. 17 Mattes of Crosset Lumber Co , 8 N. L. R B 440, 497-498 18 See May Department Stores, 326 U S 376 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, the Trial Examiner recommends that Dixie Manufacturing Company, Inc., its officers, agents, successors and assigns shall: -1. Cease and desist from: (a) Refusing to bargain collectively with Amalgamated Clothing Workers of America, CIO, as the exclusive representative of all production and maintenance employees at Plant No. 2, excluding supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action : - (b) Discouraging membership in Amalgamated Clothing Workers of America, CIO, or any other labor organization of its employees by in any manner dis- criminating in regard to their hire and tenure of employment or any term or condition of employment ; (c) In any other manner interfering with, restraining, or coercing its em- ployees in the exercise of the right to self-organization, to join or assist the Amalgamated Clothing Workers of America, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Trial Examiner finds will effectuate the policies of the Act : (a) Upon request bargain collectively with Amalgamated Clothing Workers of America, CIO, as the exclusive representative of all production and maintenance workers at Plant No. 2, excluding supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, and, if an understanding is reached, embody such understanding in a signed agreement : (b) Offer to Emma Kennedy immediate and full reinstatement to the position which she occupied in December 1943, prior to the respondent's discrimination against her, or to a substantially equivalent position, without prejudice to her seniority and other rights and privileges ; and make her whole for any loss of pay she may have suftered by reason of the respondent's discrimination against her, in the manner provided herein in the section entitled "The remedy" ; (c) Post immediately at Plants Nos. 1 and 2, in Columbia, Tennessee, copies of the notice attached hereto marked "Appendix A " Copies of such notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by the respondent's representative, be posted by the respondent im- mediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the re- spondent to insure that said notices are not altered, defaced, or covered by any other material ; (d) Notify the Regional Director for the Tenth Region (Atlanta, Georgia) in writing within ten (10) days from the date of the receipt of this Intermediate Report what steps the respondent has taken to comply herewith. DIXIE MANUFACTURING COMPANY, INC. 665 It is further recommended that unless on or before ten (10).days from the receipt of this Intermediate Report. the respondent notifies the,said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid. As provided in Section 20339 of the Rules and Regulations of the National Labor Relations Board, Series 4. effective September 11. 1946, any party or counsel for the Board may, within fifteen (15) days from the date of service of the order transferring the case to the Board, pursuant to Section 20338 of said Rules and Regulations, file with the Board, Rochambeau Building, Wash- ington 25, D C , an original and four copies of a statement in writing, setting forth such exceptions to the Intermediate Report orto any_other part, of the record or proceeding (including rulings upon all motions or objections) as he relies upon, and any party or counsel for the Board may. within the same period, file an original and four copies of a brief in support of the Intermediate Report. Immediately upon the filing of such statement of exceptions and/or briefs, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.65. As further provided in said Section 203 39, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. C W WHITTEMORE, Trial Examiner. Dated May 2, 1947 APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT in any manner interfere with. restrain, or coerce our em- ployees in the exercise of their right to self-organization, to form labor or- ganizations , to join or assist AMALGAMATED C1 OTHING WORKERS OF AMERICA,. CIO, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. WE WILL OFFER to Emma Kennedy immediate and full reinstatement to her former or substantially equivalent position without prejudice to any seniority or other rights and privileges previously enjoyed, and make her whole for any loss of pay suffered as a result of the discrimination. WE WILL ]BARGAIN collectively upon request with the above-named union as the exclusive representative of all employees in the bargaining unit de- scribed herein with respect to rates of pay. hours of employment or other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees at Plant No. 2. excluding super- visory employees with authority to hire, promote, discharge, discipline, or 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD otherwise effect changes in the status of employees, or effectively recommend such action. All our employees are free to become or remain members of the above-named union or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. DIxiE MANUFACTURING COMPANY, INC., Employer. By ------------I---------------------------- (Representative ) (Title) Dated ----------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.