Wellman Industries, Inc.

WELLMAN INDUSTRIES, INC. 325 Wellman Industries, Inc. and Amalgamated Clothing & Textile Workers Union, AFL-CIO-CLC, Successor to Textile Workers Union of Amer- ica, AFL-CIO. Cases 11-CA-6549 and 11- CA-6704 March 12, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On September 26, 1977, Administrative Law Judge Thomas E. Bracken issued the attached De- cision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel and the Charging Party filed briefs in reply. Additionally, the Charging Party filed limited exceptions to the Administrative Law Judge's recommended Order, in response to which Respondent filed a reply brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. We agree fully with the Administrative Law Judge, for the reasons set forth in his Decision, that Respondent has violated Section 8(a)(5) and () of the Act by its conduct detailed in the attached De- cision. In the circumstances of the case, however, we find merit in the Charging Party's limited ex- ception to the Administrative Law Judge's refusal to include in his recommended Order provision for the reimbursement by Respondent of the reason- able litigation and negotiation expenses undertaken by the Charging Party as a result of Respondent Wellman's refusal to engage in meaningful, good- faith, collective bargaining with this Charging Party. Because the remedy we fashion is an uncommon one,' a review of Board policy with respect to I Though not without precedent See Tjiid'e Products. Inc., 194 NLRB 1234 (1972) (herein Tiidec 1) Our supplemental decision there was in re- sponse to the remand of the Board's Tiidee Producis. Inc.. 174 NLRB 705 (1969). b the United States Court of Appeals for the District of Colum- bia Circuit See rlnernational Uniton of Electrical. Radio and Machile Workers. AFL-CIO .:. RRB.. 426 F 2d 1243 (1970), cert denied 400 US 950 (1970) See also Tudee Producs. Inc. 196 NLRB 158 (1972) (herein 17idee I) The supplemental decision there was n response to the remand of the Board's Tiide Product lIns. 176 NL RB 968 (1969). by the same court See Iniitorinal/ Brotherhood of Elctrricol. Radio anod Mau- chine H/orkirs, .AFl.-CIO v .L R B. 440 F 2d 298 (1970) Both Tisde I and 11 ere consolidated for reviewt by the court and. Wkilh mtodification. enforced at 502 F 2d 349 (174), cert denied 417 US 921 (1974) See 248 NLRB No. 29 such reimbursement orders is appropriate. The Board's basic policy is-and, we emphasize at the outset, remains-that set forth in its Second Sup- plemental Decision in Heck's Inc., 215 NLRB 765 (1974). There we indicated, id. at 767, an intention: . . . to refrain from assessing litigation ex- penses against a respondent, notwithstanding that the respondent may be found to have en- gaged in "clearly aggravated and pervasive misconduct" or in the "flagrant repetition of conduct previously found unlawful," where the defenses raised by that respondent are "de- batable" rather than "frivolous." The Heck's principle is best understood in terms of the history leading to it, a history which Heck's itself delineates in some detail, and which we shall not fully repeat here. For the most part, our Second Supplemental Decision in Heck's was de- signed to clarify any ambiguity that may have arisen from our treatment of the requests for ex- traordinary remedies in three supplemental deci- sions issued in response to remands of the United States Court of Appeals for the District of Colum- bia Circuit-Tiidee I and I, supra, and the Supple- mental Decision in Heck's, 191 NLRB 886 (1971). The Tiidee cases, in which, inter alia, we granted requests for reimbursement of legal and related fees, issued subsequent to the latter Heck's case, but prior to its review by the court of appeals. The Supplemental Decision in Heck's came up for review by the court first. The results reached by the Board in the Tiidee cases led the court, in re- viewing the Heck's supplemental, to conclude that the Board had altered its policy with regard to the reimbursement of legal and related fees, a view which, in turn, led the court to amend the Board's Order in the Heck's Supplemental Decision under review. See Food Store Employees Union, Local No. 347, Amalgamated Meat Cutter and Butcher Work- men of North America, AFL-CIO [Heck's Inc.] v. NL.R.B., 476 F.2d 546 (D.C. Cir. 1973). In NL.R.B. v. Food Store Employees Union, Local No. 347, 417 U.S. (1974), the Supreme Court remanded the case to the Board, holding that the court of appeals exceeded its review au- thority in amending the Board's Order without ini- tially giving the Board the opportunity either to also J P Sltevens & Comtpaty. Inc . 247 NLRB No 44 (1980); J P Sevell & Co. Inc., 244 NL RB No 82 (1979) J P SvenI d Co. Inc. 239 NLRB No 95 (1978). in the particular circumstances of %khich awe pro- xided for reimbursement of hoth the Board and the unlion for litigation espcnses, i nd of the ullioll fr it excess organilzalion or negotiatlion ex- penses The General Counsel does not request such relmburseniellt here. nor does he take a position on the Charging Party's request for reim- burseen li of its reasonable litigation and niegotialloll expenses WELLMAN NDUSTRIES, INC. 325 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD harmonize the Tiidee and Heck's results or to con- firm that the Tiidee cases signaled a shift in policy. 2 The background of the principle set out in the Heck's Second Supplemental Decision is important, for present purposes, primarily as it relates to an understanding of the Board's earlier decision in Heck's, at 191 NLRB 886. In that case, as indicated above, we declined to grant the union's request for reimbursement of its attorney's fees and excess or- ganizational costs. In doing so, we alluded to three considerations which militated against granting the request: "the role of a charging party under the statutory scheme . . . that Board orders must be remedial not punitive, and collateral losses are not considered in framing a reimbursement order." 3 But as the Board indicated in its Second Supple- mental Decision in Heck's, 4 the Tiidee cases, in which reimbursement was ordered, did not repre- sent a departure from the Supplemental Decision in Heck's but, rather, recognition of the substantial difference between the nature of the respondents' defenses to the violations alleged. The respondent's defense in Heck's, unlike that proffered in the Tiidee cases, could not fairly be characterized as "frivolous," in the Board's view, because the viola- tions found there primarily hinged on credibility resolutions. The decision's references to the role of a charging party, the remedial tenor of Board orders, and the inapplicability of collateral losses to the framing of the reimbursement order cannot be divorced from that fact. Tiidee I sets out the reasons why the "role of a charging party" should not be permitted to pre- clude a reimbursement order in a case involving "frivolous" defenses to the violation(s) alleged.5 With respect to the emphasis the Heck's Supple- mental Decision placed on the remedial quality of our processes, an aggrieved party's outlay of legal and negotiation expenses is likely to be a prime in- gredient in, or motivation behind, a refusal to bar- gain for which there is no arguably meritorious jus- tification. Logic suggests little reason for such a re- fusal other than the belief that to do so may create an economic imbalance beneficial to the party un- dertaking the refusal. 6 Board orders, of course, may not be justified simply on the ground they will 2 In so holding, the Supreme Court "thus [had] no occasion to address the question whether the Board's broad powvers under Section 10C) to fashion remedies include power o order reimbursement of litigation expenses "417 U S at f 9 3 191 NLRB at 889, citing, for the latter two propositions, respective- ly, Repubic Steel Corporuatio, .. L.R B. 311 U S. 7 11-12 194()) Gu- lell Gi, Compainy. Inc \v .L R.B, 340 U.S. 361, 364 (1951) 4 215 NLRB at 767-768. s 194 NL.RB at 1236. n To avoid an)y possible misunderstanding. within arguably nmeritori- ous" refusals to bargain would fall those designed to secure court review of Board representation decisions underlying an order to bargain deter persons from violating the Act.' But the po- tential for deterrence in itself does not preclude im- position of the order. In our view, the remedial as- pects of such a reimbursement order, in cases in- volving frivolous defenses to a refusal to bargain, predominate whatever deterrent effect such an order may also have, and are well within the scope of our Section 10(c) authority. 8 Finally, and for related reasons, we do not con- sider litigation and negotiation expenses incurred as a result of a frivolous refusal to bargain to be ex- penses collateral to the unlawful conduct. We have previously found certain legal fees-those incurred in connection with non-Board proceedings arising out of unlawful conduct-to be noncollateral ex- penditures. 9 It may of course be argued that the nexus between expenditure and unlawful conduct, in such instances, is more direct. But that does not serve to make reimbursement for Board litigation fees collateral to the conduct found unlawful in the litigation. As indicated, the mere fact the refusal is frivolous suggests it has been undertaken, at least in part, to create an economic imbalance favoring the violator. From that perspective, the expenses are the direct consequence of the frivolous refusal. Moreover, the very principle that litigation ex- penses are, in limited circumstances, recoverable by a charging party flows from the public interest which seeks to remove frivolous litigation from crowded Board and court dockets. Reimbursement for legal expenses occasioned by such litigation vindicates that interest. While we do not suggest that reimbursement for negotiation expenses' would be appropriate only in frivolous cases, we likewise do not consider such expenses collateral to I See Republi Steel Corporation. 311 US. at 12 " In this connection, we are not unmindful of the consequences that existing remedial limitations isit upon the Board's capacity meaningfully to remedy unlawful refusals to bargain in particular In Ex-Cell-O Corpo- rartion, 185 NLRB 107 (1970), the Board held that it ,was without author- ity to compel the retroactie compensation of employees for indetermi- nate monetary losses incurred as a consequence of an unlawful refusal to bargain We do not mean to call into question the propriety' of the Ex- Cell-O decision, but it does serve to demonstrate. as acknowledged by the Board majority in itself E-Ce-O that "[al mere affirmatie order [to hargain] does not eradicate the effects of an unlawful delay in the fulfillment of a statutory bargaining obligation." Id. at 108 An outlay of legal and negotiation expenses incurred as a result of a friolous refusal to bargain only serves to exacerbate the inadequacy E-Cell-O addressed 'he policy of the [Act] requiritg good faith bargaining is too im- portant to be indicated only through it Jlituro relief" Inreralutioiul Brotherhood of Electrical, Radio aund Machine Workers, .41L-CIO0 :I..R.B., 502 F.2d at 362 (statement of Chief Judge Bazeloi in deying petitioner's suggestion for rehearing e banil) 9 Compare Unirted Prcel Service, 203 NL.RB 799 (1973), enfd and re- manded 509 F.2d 1075 (9th Cir 1975). cert. denied 421 U.S 976 (1975); Baptist Mem,,orial Hospiral. 229 NLRB 45 (1977). '0 The propriety of awarding an aggrieved party negotiation expenses, as such. was not in issue in the Heck's and the Tiidee cases Although such expenses ,ere the subject of our order i J. P Srtevens. fn I. upra. in adopting the Administratise I ass Judges recolmmendation that such expenses be awarded the union there wre did not expand upon his ratio- nale ^ WELLMAN INDUSTRIES, INC. 327 a frivolous refusal to bargain in particular. Certain- ly, their expenditure plays no less a role than does the expenditure of attorney's fees in the decision to undertake a frivolous refusal to bargain. In addi- tion, such expenses are part and parcel of the course of conduct by which the true character of the refusal is sought to be masked. Our analysis of Board policy in this area and our conclusion that the remedy we fashion is consonant with it have proceeded from the finding that the litigation and negotiation expenses incurred by the Charging Party have been the result of Respondent Wellman's frivolous defense for its latest refusal to undertake its statutory duty to bargain. We turn now to an examination of the facts upon which the finding is based. '' In August 1971, Textile Workers Union of America, AFL-CIO (TWU), filed an election peti- tion seeking to represent Respondent's production and maintenance employees. The election was held on November 17 and 18, 1971, a majority of those casting ballots voting against representation. TWU filed objections which, after investigation, the Re- gional Director for Region 11 found meritorious. On February 10, 1972, by supplemental decision, he set aside the election and directed that a second one be held. Shortly thereafter, Respondent re- quested from the Regional Director all statements of "any deponents or any individual from whom the Region obtained information" in its investiga- tion of TWU's objections. The Regional Director refused the request. On March 9, 1972, Respondent filed a request for review of the Regional Direc- tor's supplemental decision, contending, inter alia, that it had been denied due process by the Region- al Director's refusal to turn over the affidavits relied on by him and his failure to conduct a hear- ing on the objections. The request for review was denied by the Board on March 23, 1972. On April 19 and 20, 1972,12 the second election was held. In it, a majority of voters chose TWU as their bargaining representative. Respondent filed objections. On June 14, 1972, the Regional Direc- I I Certain factual references are based on other Board and court deci sions inoling this Respondent, of hich e have aken official notice See Weilman Iduorrl c Inr . 201 NLRB 958 (1973) U'Well/nan )t ' /l- rnan Irduqrwin. Ilr, 211 NLR B 639 (1974). enfd ithout published opin- jion 519 F 2d 1401 (4th Cir 1975), cert denied 423 U.S 927 (Welmun 11); Wellman Induirr/els In, . 222 NLRB 204 (19761. enfd. ithout published opinion 549 F 2d 830() (D C Cr 1977), cert denied 434 US 818 (1977) (Wel/,,nr 11I) See also W//lm,ri Iduvtri. Inc .NL R B . 82 RRM 2857 (I)C SC 1973). affd 490 F 2d (41h Cir 1974), cert denied 419 U S. 834 H'eiim,l/n Irrtir I N R.B., 82 LRRMN 3069 (DCSC 1973) 12 In the meantime, the Regional DireLtor. upon charge, filed hb TWUl issued a complaint against Respondenl. alleging '.iolatiols i)f Sec 8(a)(rI)ard (3) of the At On Septemhcr 20, 1972, Rpondent aas ftind h) an AdmriiStrrlive I 1a; Jdge to have comiiied such liolaltion% The Board. in February 21, 1973 ad[opied the Admlnisratie I as Judge's Decisiron. ithout modificalion See H'l/u,an 1. 201 NL RB 958 tor ruled that, assuming the facts alleged in the ob- jections were true, they nonetheless failed to amount to objectionable election conduct on TWU's part. The Regional Director accordingly certified TWU as exclusive representative of Re- spondent's production and maintenance employees. On July 10, 1972, Respondent filed with the Board a request for review of that action. In the request, Respondent renewed its previous requests for a hearing on TWU's original objections and the pro- duction of the affidavits. The Board denied the re- quested for review on August 1, 1972.'3 There- after, TWU request the commencement of bargain- ing. On October 4, 1972, Respondent informed TWU that it would not bargain, contending TWU's certification was invalid. In response to subsequent charges filed by TWU, the General Counsel, on October 20, 1972, issued a complaint alleging Respondent had violated Section 8(a)(1) and (5) of the Act. In its answer, Respondent de- fended its refusal to bargain with TWU on the theory that because TWU, certified on June 14, 1972, had waited until September 26, 1972, to for- mally request the commencement of bargaining, its delay constituted violation of Section 8(b)(1)(A) and 8(b)(3) of the Act. TWU, in Respondent's view, had therefore waived any right to relief. See Wellman 11, 211 NLRB at 645. The General Coun- sel moved to strike the defense and for summary judgment. Respondent thereupon sought and re- ceived a temporary restraining order enjoining the Board from proceeding on the complaint and mo- tions. It then instituted a federal district court action seeking an order that the Board conduct a hearing on TWU's objections to the first election and produce the employee affidavits. On February 23, 1973, the district court denied Respondent's re- quests and dissolved the TRO. Respondent's subse- quent application to the court for a stay of its order pending appeal to the United States Court of Ap- peals for the Fourth Circuit was likewise denied, on April 23, 1973.' 4 Upon dissolution of the temporary restraining order, Respondent, on March 8, 1973, filed a "Motion to Deny General Counsel's Motion for Summary Judgment," in which it alluded to certain newly discovered evidence involving three affida- vits from one of its employees. On May 30, 1973, the Board remanded the case to the Regional Di- rector and ordered that a hearing before an admin- istrative law judge be held to resolve whatever 1: t'hile 1Ire request fr rexieu as peidilg. Respondetll filed A ith the Reghiinal Director a nmotion for rec,ilrideriiraln of his decil on It 'eils denied h hinr nII Jul 21. 172 '4 St f I1 , iuprr 'he appc;il .1i d rcllc' h a . lill lll 1% Is - lrt of appealls (II Janiuary 22, 1974 Respondcirll', peiIini foi Certiorari 1.is deled b the Supreme Court on October 5. 1974 WELLMAN INDUSTRIES. INC. 327 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD matters might be raised by the affidavits. The Board's remand order was followed by two addi- tional complaints issued by the General Counsel. Both involved unilateral changes instituted by Re- spondent subsequent to TWU's certification. The Regional Director consolidated these proceedings with the remanded proceedings and, on October 15, 1973, the Administrative Law Judge issued a Decision in which he completely discredited the testimony of the employee on whose testimony Re- spondent's defense was based. Inasmuch as Respon- dent had admitted making them, the Administrative Law Judge also found that Respondent had made the unilateral changes alleged in the consolidated complaint. On June 17, 1974, the Board adopted a second decision 1 5 by the Administrative Law Judge and, inter alia, ordered Respondent to bar- gain with TWU. On April 1, 1975, the United States Court of Appeals for the Fourth Circuit en- forced, without published opinion, the Board's Order. Wellman II, supra. Respondent refused to bargain pending the outcome of its petition for Su- preme Court review. On November 3, 1975, the Supreme Court denied the petition. e It is against this background that Respondent's asserted "justification" for its subsequent refusal to bargain is best appreciated and, for that reason, its more salient features deserve emphasis. Thus, Re- spondent contended that a hearing was necessary to sustain TWU's objections to the first election and that it was entitled to access to whatever affi- davits the Region had relied on in sustaining those objections. After the Board had upheld the Region- al Director's actions in that regard, and the Gener- al Counsel issued a complaint occasioned by Re- spondent's ensuing refusal to bargain with TWU, Respondent sought to defend its refusal on the ground that TWU had violated Section 8(b)(1)(A) and 8(b)(3) of the Act by "waiting" from June 14, 1972, to September 26, 1972, to formally request bargaining. 17 When the General Counsel there- upon moved to strike Respondent's somewhat novel defense and for summary judgment, Respon- dent instituted a Federal district court action seek- ing to enjoin the Board from proceeding on the 15 In his first Decision, the Administralike Las Judge, based il his interpretation of the remland order of May 30, 1973, failed to state con- clusioils of law and did not issue a recommended order and notice Ol January 31. 1974. the HBoard remanded the proceedings to him for that purpose "; 423 LUS 927. BetsNeen August 174 and Nlay 1975. ri l riled a number of additional charges against Respondent, culminating in Wll man III. spru Its oulcolme had a familiar rhilg, the United States CouLrt of Appeals for the District of Ciolunmbia Circuit enforcing, ¥sithout opil- ion, the Board's Order, on Februar 5 28. 1977, and the Supreme Court denying Respondent's pclition fr certiorari ion Ocltobr 1 1977 See fi I 1, upru 17 As indicated, hosever, the Board denied Respondeit's request for reviews of the Regional Director's certification on August I. 1972 Motion for Summary Judgment. The basis for that action was the Board's refusal to turn over to Re- spondent the employee affidavits. Respondent's re- quest was denied by the district court; its appeal therefrom was rejected by the court of appeals, and its petition to the Supreme Court for review was likewise denied. The unfair labor practice pro- ceedings thus resumed, Respondent not only rer- aised its claim with respect to the necessity of a hearing, but also contended summary judgment was inappropriate in light of newly discovered evi- dence. The outcome of that litigation was a Board- directed hearing on Respondent's evidentiary claim, a subsequent discrediting of the evidence, a Board order to bargain, a summary enforcement by the court of appeals of the Board's Order, and a denial of Respondent's petition for certiorari by the Supreme Court. However one characterizes the merits of Re- spondent's claims up to that point, it is manifest that as of November 3, 1975, when Respondent's second petition for certiorari was denied by the Su- preme Court,' 8 its statutory duty to bargain with TWU was fully and clearly established. And given the certainty with which that duty was established, there is little room for doubt that Respondent's purported justification for its subsequent refusal to bargain was reached in bad faith and solely with a view toward avoiding its clearly established duty. In his attached Decision, the Administrative Law Judge thoroughly describes the course of "bargain- ing" that followed the Supreme Court's November 3, 1975, denial of Respondent's petition for certio- rari. We adopt, for the reasons he provides, his conclusion that what "bargaining" took place was indeed only surface bargaining on Respondent's part. But that conclusion is only further under- scored by reference to the specious, and frivolous, reason advanced by Respondent in defense of the unfair labor practices, including its cessation of bar- gaining altogether, which followed in the wake of its previous "bargaining," namely, that by virtue of the June 2, 1976, merger of TWU and the Amalga- mated Clothing Workers of America, AFL-CIO (ACW), Respondent was relieved of any bargain- ing duty, because "its employees were not given an opportunity to express an opinion or vote for or against the merger prior to approval." Preliminary, we note the considerations on which our characterization of Respondent's merger argument is not based. Subsequent to the merger, all unit members were given the opportunity to vote on the merger. Every unit member who voted voted in favor of it. While that may have given Respondent even less justification for the shape its '" See also fil. 16, pri W'ELLMAN INDUSTRIES. INC. 329 professed concern for the Section 7 rights of its employees took-and certainly would have militat- ed strongly against Respondent's position had it chosen to attempt to question its bargaining duty through the filing of an RM petition-it remains that what expression there was followed the merger. Subsequent to Respondent's cessation of bargaining, the Board ruled, without dissent, that the Charging Party was the lawful successor to TWU and ACW, and that the absence of participa- tion in or ratification of the merger by employees represented by either did not relieve the employers of those employees from a preexisting duty to bar- gain with TWU or ACW. American Enka Compa- ny, a Division of Akzona Incorporated, 231 NLRB 1335 (1977). While American Enka was little more than a reaffirmation of Board policy substantially predating Respondent's cessation of bargaining, ' 9 it nonetheless was decided subsequent to the cessa- tion of bargaining. What did not follow the cessation of bargaining, however, as Respondent's prior unlawful refusals to bargain in good faith with the Charging Party, refusals premised on positions which, no matter how characterized, did not receive a single expres- sion of support throughout a course of litigation that covered the entire federal judiciary system, twice. The overriding point here is that Respon- dent's employees did not have a premerger oppor- tunity to express their view on the merger solely because they were not a chartered local of TWU. And they were not that because no collective-bar- gaining agreement covering them was extant. But that is a function of Respondent's prolonged refusal to bargain in good faith with their duly, and legal- ly, certified representative. For Respondent to con- tend that its duty to bargain ceased by virtue of its own unlawful conduct would indeed amount to a frivolous proposition. That is, however, the precise effect of its latest justification for its refusal to honor its statutory obligation, an effect only heightened by one particular feature of Respon- dent's defense that warrants mention. Respondent points out that the merger convention's charter local rule was waived, by resolution of the conven- tion, for certain employees of J. P. Stevens Compa- ny, Inc., an employer with which this Board has had past occasions to deal. 2 0 As Respondent states in its brief to the Board: As a result of the aforesaid resolution, em- ployees of J. P. Stevens employed at Roanoke Rapids, North Carolina and Statesboro, Gero- gia, many of whom had not as yet even joined 1' Se. e g Jm n f C ,( . " N'I R 13 7 2"' See, c g J P St ' & (', 1&:. 2', N R N qS. li] he'L cited thrrci. I p f h TWUA, were accorded membership in the TWUA and such bargaining units were issued chartered locals. More importantly, such char- tered locals were permitted to elect delegates and to participate in all the activities of the Convention, whereas Wellman's employees were denied such right. Thus, it must be concluded that not only did the TWUA violate Wellman's employees' right to express [their] choice, but the TWUA in fact discriminated against and breached its duty of fair representation to such employees by selectively accordingly to similarly situated J. P. Stevens employees the right to partici- pate and vote on the issue of merger. That Respondent believes its employees should have been accorded the same stature as the "simi- larly situated" employees mentioned is, we think, revealing testament to the quality of Respondent's defense to the allegations of the complaint. In all the circumstances, we view Respondent's latest refusal to bargain as not occasioned by a rea- sonably debatable point of view but, instead, a mer- itless attempt to relieve itself of its statutory duty to bargain in good faith. Accordingly, we shall amend the Administrative Law Judge's recom- mended Order to provide for the reimbursement by Respondent of the reasonable litigation and negoti- ation expenses incurred by the Charging Party in connection with the litigation of this proceeding and the events subsequent to November 3, 1975, giving rise to it. Moreover, in light of both this re- fusal to bargain and Respondent's established ten- dency to engage in unfair labor practice activity, we shall further grant the Charging Party's request that the notice to employees be mailed and read to all bargaining unit employees. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Wellman Industries, Incorporated, Johnsonville, South Carolina, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: I. Insert the following as paragraphs 2(j), (k), and (1), and reletter the subsequent paragraph ac- cordingly: "(j) Mail a signed copy of the said notice to each of its employees in the certified bargaining unit im- WELLMAN INDSTRIES. INC 329 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mediately upon receipt thereof from the Regional Director. "(k) At such reasonable time as the Board may request, convene during working time all bargain- ing unit employees and, at its option, either have the said notice read by a high managerial official or provide facilities and permit a Board agent to read the notice to those employees. In the event Re- spondent chooses to have the notice read by its of- ficial, the Board shall be afforded a reasonable op- portunity to provide for the attendance of a Board agent. "(I) Pay to the Union the costs and expenses in- curred by it in the investigation, preparation, pre- sentation, and conduct of this proceeding before the Board, including reasonable counsel fees, sala- ries, witness fees, transcript and record costs, print- ing costs, travel expenses and per diem, and other reasonable costs and expenses, all such costs to be determined at the compliance stage of this proceed- ing. In addition pay to the Union the costs and ex- penses incurred by it in the preparation and con- duct of collective-bargaining negotiations subse- quent to November 3, 1975, such costs and ex- penses to be determined at the compliance stage of this proceeding." 2. Substitute the attached notice for that recom- mended by the Administrative Law Judge. MEMBER TRUESDALE, concurring in part and dis- senting in part:I agree with my colleagues that Re- spondent violated Section 8(a)(5) and (1) of the Act as found by the Administrative Law Judge. I also agree generally with the majority's discussion of the Board's policy concerning reimbursement of litigation and related expenses elucidated in Heck's Inc., 215 NLRB 765 (1974). However, contrary to the majority, I am not persuaded that a proper ap- plication of the Heck's principle warrants granting the Charging Party's request for reimbursement of its litigation and negotiation expenses here. Ac- cordingly, I dissent from that part of the Order granting such a remedy. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing, the National Labor Relations Board has found that we refused to bargain with Amalgamated Clothing & Textile Workers Union, AFL-CIO-CLC, successor to Textile Workers Union of America, AFL-CIO, as the exclusive col- lective-bargaining representative of all our employ- ees in the following appropriate unit: All production and maintenance employees including labortory technicians, plant cleri- cal employees, scheduler and follow-up man, process control technicians, maintenance technician and quality control technicians employed at our Johnsonville, South Caroli- na plant, excluding office clerical employees, professional employees, sales personnel, sea- sonal employees, messenger and mail clerk, fabric designer, watchmen, guards and su- pervisors as defined in the National Labor Relations Act. WE WILL NOT refuse to recognize, and WE WILL, upon request, meet and bargain collec- tively with Amalgamated Clothing & Textile Workers Union, AF-CIO-CLC, and its desig- nated agents as your exclusive representative, and, if agreement is reached, WE WILL put it in writing and sign it. WE WILL NOT interfere with the efforts of the above-named Union to bargain on behalf of the employees of the above-described unit. WE NOW notify our employees that WE WILL NOT refuse to bargain collectively with the Union as the representative of the employ- ees in the appropriate unit. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the rights guaranteed them by Section 7 of the Act. Employees are free to join, assist, or sup- port the Union without fear of reprisals for doing so. The Board also found that we violated the National Labor Relations Act by unilaterally, that is, without consulting with the Union, laying off employees, transferring them, reduc- ing their pay and classifications, and by making changes in the well strand line, by making changes to a plastic line, by making overtime in the fiber spinning department man- datory rather than voluntary, by eliminating the wool scouring and preparing third shifts, and by laying off employees in the wool divi- sion in January 1977, without first bargaining with the Union about it. WE WILL NOT lay off, transfer, or reduce employees' pay or classifications, or makes changes in the well strand line or the plastic line, or make overtime in the fiber spinning de- partment mandatory, or eliminate the wool scouring and preparing third shifts, or lay off employees in the wool division, or shut down the fiber division, without first bargaining with the Union about it. WELLMAN INDUSTRIES, INC. 331 If the Union requests that we do so, WE WILL set aside the layoffs, transfers, reductions in pay and classifications, and changes in the well strand line or the plastic lines, and make overtime in the fiber spinning department vol- untary, and restore the third shifts to the wool scouring and preparing departments, reinstate the laid-off employees in the wool division, and reopen the fiber division. WE WILL also offer any employee previous- ly unilaterally reduced in classification rein- statement to his former classification, if he wants it. WE WILL reimburse employees for any pay or other benefits they lost because of our uni- lateral actions stated above. WE WILL offer full reinstatement to Alton Joye and Bobby Filyaw, with backpay plus in- terest. WE WILI. compensate the Union for their expenses in preparing for and conducting this case, and WE WILL compensate the Union for its expenses in preparing for and participating in collective-bargaining negotiations with us subsequent to November 3, 1975. WE WILL send to all employees represented by the Union copies of this notice and WE WILL read this notice to all our employees. WELLMAN INDUSTRIES, INC. DECISION STATEMENT OF THE CASE THOMAS E. BRACKEN, Administrative Law Judge: On April 26, 1976,1 the Textile Workers Union of America, AFL-CIO, filed unfair labor practice charges, also filing amended charges on May 7, against Wellman Industries, Inc., the Respondent, in Case 11-CA-6549; on August 30 the Amalgamated Clothing & Textile Workers Union, AFL-CIO, filed charges, also filing amended charges on November 11 and January 31, 1977, against the same Re- spondent in Case 11-CA-6704. A complaint was issued for Case I 1-CA-6704 on November 15, and on February 14, 1977, a consolidated complaint for both cases was issued by the Acting Regional Director, setting forth therein as the Charging Party in both the original com- plaint and the consolidated complaint the Amalgamated Clothing & Textile Workers Union, AFL-CIO-CLC, Successor to Textile Workers Union of America, AFL- CIO. The complaint alleged that the Respondent had en- gaged in various unfair labor practices, hereinafter de- scribed, in violation of the National Labor Relations Act, as amended. The Respondent duly filed an answer and amended answers denying the allegations of unfair labor practice, and asserting that it did not know if the Amal- gamated Clothing & Textile Workers Union, AFL-CIO- ' All dte, are in 1976 unilt,, olhcr¥ic dlated CLC, was a labor organization, and even assuming that it was, denied that it was the exclusive collective-bar- gaining representative of its employees, as the Textile Workers Union of America, AFL-CIO-CLC, had previ- ously been certified as such bargaining representative of its bargaining unit employees. Pursuant to notice, a hearing was held before me in Georgetown, South Carolina, on February 15, 16, and 17 and March 7, 1977. All parties appeared at the hearing and were afforded full opportunity to participate, to in- troduce and to meet material evidence, and to engage in oral argument. Upon the entire record.2 including my observation of the demeanor of the witnesses, and after due consider- ation of the briefs filed by the General Counsel, the Re- spondent, and the Amalgamated Clothing & Textile Workers Union, AFL-CIO-CLC, I make the following: FINDINGS OF FACT I. JURISDICTION The Company, a Delaware corporation, is engaged in the manufacture of wool and synthetic fiber products at its plant in Johnsonville, South Carolina, where, during the past 12 months, which period is representative of all times material hereto, it directly shipped goods valued in excess of $50,000 to points and places outside the State of South Carolina. During the same period of time, the Company caused to be shipped directly to the same plant goods and raw materials of a value in excess of $50,000 from points and places outside the State of South Caroli- na. The Company admits, and I find, that it is an em- ployer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED As set forth in detail hereinafter, Amalgamated Cloth- ing & Textile Workers Union, AFL-CIO-CLC, is an in- ternational union created out of the merger of the Textile Workers Union of America, AFL-CIO (hereafter TWU), and the Amalgamated Clothing Workers of America (hereafter Amalgamated), on June 3, 1976. Its purpose, as explained by the uncontradicted testimony of Scott Hoyman, southern director of the Textile Division of the Amalgamated Clothing & Textile Workers Union, AFL-CIO-CLC, is to represent and advance the interest of textile workers and clothing workers, and to bargain on behalf of employees with employers concerning wages, hours, and working conditions. I find that Amal- gamated Clothing & Textile Workers Union, AFL-CIO- CLC (hereafter ACTWU), is a labor organization within the meaning of Section 2(5) of the Act.3 2 Error, ill Ihe transcript have been noted and corrected Sec. 2(5) of he Acl proides. "The termi labor orgalnl, all il meanr ain] orgii/ill Aon r itf kind, or an1 agc.nc! or' en plot'ce reproeitlilion cionllll e or pll, In shlich c-mpol ce, pilrticipaic mld %shilh erlit, for th prpoc. l l sh c or I11 pari. of dialilig t.ilh enipl] cl onlcernil11g grie anices. lbo d pute, swage, raie of pa? hour,, r f ernp l ln[i. or conlidiollns of %, rk WELLMAN INDUSTRIES, INC 331 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II1. THE UNFAIR LABOR PRACTICES A.Summary of Issues The General Counsel contends, and the Respondent denies, that the Respondent engaged in violations of Sec- tion 8(a)(5) and (1) of the Act by the following conduct: (1) Refusing to bargain with the ACTWU commenc- ing with March 1, 1976, in that Respondent negotiated in bad faith and with no intent of entering into any final or binding agreement. (2) Unilaterally changing existing terms and conditions of employment by (a) eliminating jobs in the well strand, spinning department, and on the plastic line while in- creasing the duties of the plastic line helpers, (b) granting a general wage increase, (c) changing its policy in one department from voluntary overtime to mandatory over- time, with resultant penalties for noncompliance, (d) eliminating shifts, (e) laying off employees, (f) transfer- ring employees, (g) reducing the pay of employees, (h) announcing changes in the insurance program, (i) an- nouncing improvements in its attendance award pro- gram, (j) announcing its contribution to the employees' purchase of safety shoes-all without notice to or prior consultation with the Union. (3) Refusing to furnish (a) job descriptions, (b) data concerning pension and insurance programs, (c) data re- lating to the affirmative action program, (d) a list of em- ployees affected by the decision in Wellman Industries, Inc., 222 NLRB 204 (1976). (4) Negotiating with the Union in bad faith and with no intent of entering into a collective-bargaining agree- ment. (5) Discharging and failing to reinstate employees Alton Joye and Bobby Filyaw. (6) Refusing to meet and bargain with the Union since June 11. Basic to the entire case is the General Counsel's con- tention, which the Respondent denies, that the ACTWU is a successor to the TWU, and as such the Company is obligated to bargain with the ACTWU. B. Background Cases This case has its genesis in a certification issued by the Board's Regional Director on June 14, 1972, wherein the Textile Workers Union of America, AFL-CIO-CLC, was certified as the exclusive collective-bargaining repre- sentative of the Respondent's employees in the following appropriate unit: All production and maintenance employees in- cluding laboratory technicians, plant clerical em- ployees, scheduler and follow-up man, process con- trol technicians, maintenance technician and quality control technicians employed at the Employer's Johnsonville, South Carolina plant, excluding office clerical employees, professional employees, sales personnel, seasonal employees, messenger and mail clerk, fabric designer, watchmen, guards and super- visors as defined in the Act. Following the certification, by written request on June 24, 1972, and at various times thereafter, TWU requested the Respondent to bargain in the appropriate unit, and to consult with that Union concerning changes in policies, rules, or other actions affecting terms and conditions of employment of employees in the appropriate unit. These requests the Respondent uniformly rejected, on the ground that the certification was invalid. Thereafter, the Respondent unilaterally, and without notice to or consul- tation with TWU, laid off employees, granted wage in- creases, changed work schedules, and promulgated new absence and tardiness rules. The TWU then filed unfair labor practices, and fol- lowing a hearing the Board issued a Decision and Order on June 17, 1974, in which it found that by refusing to bargain with the TWU and by the conduct described in the preceding paragraph, the Respondent had violated Section 8(a)(1) and (5) of the Act. The Respondent was ordered to cease and desist from refusing to bargain with the TWU and from unilaterally changing conditions of employment, and from interfering with employee rights under Section 7 in any like or related manner. Wellman Industries, Inc., 211 NLRB 639 (1974), hereafter referred to as Wellman II.4 On April 1, 1975, the Court of Appeals for the Fourth Circuit granted enforcement of the Board's Order in a per curiam decision, 519 F.2d 1401. The Respondent then filed a petition for certiorari with the U.S. Supreme Court and on November 3, 1975, the petition was denied. 423 U.S. 927. During the period in which the Board's petition for enforcement of its Order was being processed through the Court of Appeals for the Fourth Circuit, and during the period prior to the Supreme Court's denial of certio- rari, the TWU was filing additional charges and amend- ed charges against the Respondent, in Cases I -CA- 5827, 5885, 5938, 5947, 5962, 6009, 6011, 6075, 6092, and 6101. Following a hearing on these charges, the Board issued a Decision and Order, 222 NLRB 204, Wellman III, on January 13, 1976, in which it again found that by refusing to bargain with the TWU, and by laying off and transferring employees, reducing their pay or classifica- tion, making changes on its on-call or shift rotation sys- tems without first bargaining with the Union, the Re- spondent had violated Section 8(a)(1) and (5) of the Act. Again the Respondent was ordered to cease and desist from the proscribed activities and to bargain with the TWU. On February 28, 1977, the Court of Appeals for the District of Columbia Circuit denied Respondent's pe- tition for review and granted enforcement of the Board's Order in a per curiam decision. 549 F.2d 830. 4 'Ib i s v ra, not the Rcpondent's first xpercence vlth the BoaILrd', lltilil labor prilctl procedtUisC. ais ifn /l/o4lua, Iuduirl'. Int . 201 NlRI 982 (1971). [ //,,.mt, 1. the Ii.r-d fi;id llthat he Reponldell hd xiiolited Sec g(.l)(I ) llild i ) f the iL' h dnlirili Tlllt lril liscllh.lrgillg irid dli.lpcill lllg lllplo tc rlilg t, outl rC o t the 1]t 'I ' s Or.iillllOI- WELLMAN INDUSTRIES, INC. 333 C. Respondent's Bargaining With the TWU5 I. Requests for information by TWU Following the U.S. Supreme Court's denial of certiora- ri on November 3, 1975, of the original refusal-to-bargain case, George Justice, the manager of the South Carolina Coastal Joint Board of the TWU, wrote to the Respon- dent on November 12, 1975, renewed the TWU's request to bargain, and requested the following items in order to prepare contract proposals: (a) A list of all bargaining unit employees, with their job titles, rates of pay, and date of hire. (b) Employees being paid by a piece rate. (c) A brief description of all fringe benefits. (d) A copy of the employee's manual. By letter dated November 25, 1975, the Respondent by Director of Personnel Douglas H. Matthews replied to the TWU, advising that it was gathering the information about the bargaining unit employees and their job titles, rates of pay, and dates of hire, and that this information should be forwarded to the TWU by the end of the first week of December; that the Company did not have piece rates; that information about fringe benefits would be in- cluded in the information about employees. An undated "Policy Manual" was enclosed, which Matthews referred to as an "Employee Manual." On December 3, 1975, TWU Representative Justice wrote the Respondent suggesting that the parties meet on either of 3 days, December 15, 16, or 17, at a location suggested by the Company. On December 12, 1975, Justice, whose office was in Andrews, South Carolina, a distance of 30 to 35 miles from Wellman's plant in Johnsonville, received a tele- phone call from Attorney Robert M. Ziskin, whose office is in Metropolitan New York.6 In response to Zis- kin's telephone request, Justice wrote him on the same day, pointing out that on November 12 the TWU had re- quested of the Company "certain information needed for the purpose of drafting our contract proposals" and in reply had only received a letter promising the data, and a company policy booklet. Responding to Ziskin's request, Justice forwarded with his letter 15 TWU contract proposals: purpose and scope of the agreement: recognition and nondiscrimination; bul- letin boards; safety and health; shop rules; dues deduc- tion; discharge or discipline; adjustment of grievances; arbitration; leave of absence, military service; bargaining unit work; access to premises; termination; appendix. Johnson complained about the delay of the commence- ment of negotiations and suggested that the parties meet for at least 2 days in the week beginning January 12. On December 18, 1975, Justice again wrote to Ziskin complaining that he had not received the information previously requested and which Ziskin had promised The erents gi ng rise ,to hi cas,, are nt esserntiallx in dispute as much of the eidence \was prcenlrd b uncontlcstcd documents, stipula- tioIls, and uncnInlradicled tcsl[inl l> The Respondenl rested a the end of the General Counsel's case 6 Justice kne Ziskin. as Ziskin and the ls firmi oif Mirkil. Barre Saltzslein. and Gordon had rcprescnlctd the Respordent in the prior Board cases set forth uipr, would be forwarded by the Company on December 12 or 13, 1975. 7 Justice also stated that he was disappointed that the at- torney had not telephoned him on December 17 as he had promised, to advise the Union of dates that negotia- tions could be scheduled. Finally, by a letter dated December 31, Ziskin in- formed Justice that he had agreed with Scott Hoyman to schedule the first bargaining session on January 20. Hoyman was an International vice president of the TWU, and its southern director, a position he had held for the past 10 years. 2. The bargaining sessions a. January, February, and March On January 20, the first bargaining session was held at the city hall of Johnsonville. Present on behalf of the Re- spondent were Matthews, two supervisors, and Attorney Ziskin. The TWU was represented by Hoyman, Justice, International Representative James Renker, Coastal Joint Board Business Agent James Johnson, and an employee committee of eight people. The meeting opened on a dis- cordant note with Hoyman informing Matthews that there was a misunderstanding that he wanted to clear up: that an employee on the negotiating committee had been advised by his supervisor that the bargaining committee employees would receive penalty points under the Com- pany's absenteeism and tardiness rule for their attendance at bargaining sessions. Matthews thereupon told Hoyman that it was not a misunderstanding, and that the Compa- ny would give employees on the bargaining committee penalty points for their attendance at bargaining sessions. Hoyman advised the Respondent's negotiators that he was not going to bargain under those circumstances, and if necessary he would file unfair labor practice charges. Hoyman then led his committee out of the building to go to the TWU hall in Johnsonville, and stated that he would be available by phone if the Respondent wanted to reconsider its position with regard to the penalty points. Approximately 15 minutes later, Matthews tele- phoned Hoyman and advised that the employees would not receive penalty points for serving on the bargaining committee. The parties then met again and Hoyman stated that the TWU wanted to reach an agreement on the nonecono- mic items before getting into economic matters, whereas Ziskin stated that the Company wanted a total set of proposals, including the economic ones. Hoyman pointed out that the policy manual received on December 18, 1975, from the Respondent, as well as the insurance manual," was inaccurate, and asked for up-to-date copies. Hoyman also asked for a copy of the supervisor's manual which contained information on working conditions, 3 B letter datled December 17, 1975. I'ersonnel Director Nal;llhexs mailed to Justice a list of bargaining unit emplo?\ees. and enclosed there- with a cop of the pensionl plan and a cop, it the Insl ralnce progrlam As to the Compan", ,.acaliin plait. holida pan, r premiumn pa, the letter reilll "see Fmplosee Manual Ih' di)ctiteIt \ s entitled Group Plan" iid C1r[n1,vlie tihe benefltits aild priincipil plol ilons relating to cmplioee coterage ltilder the Aetl;a I.ie Insuranlce Cormpalt group conl ractl still he Respitenietl It is tin- dL.ltd itl do es ti-i1 disclose the period of litle it1 coters WELLMAN INDUSTRES, INC. 333 334 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD company policy, and fringe benefits. Matthews contend- ed that the supervisor's manual was a confidential docu- ment and did not have to be turned over to the TWU. The parties met again on the next day, and the TWU representatives asked for an update of the insurance benefits, for hiring rates and rate progressions, copies of various forms used by employees, summaries of layoffs and discharges, and other economic data. The next bargaining sessions were on February 12 and 13, and took place in Georgetown, South Carolina, where all subsequent sessions were conducted. Matthews informed the TWU negotiators orally as to the new im- provements in the insurance benefits, but contended that he could not furnish the new schedule of benefits, as the Company had no such schedule. Hoyman replied that it was incredible that the Company had had an increased schedule of benefits in effect for its employees for 4 months, and did not have a list of those benefits. On the next day the parties met again, and the TWU negotiators again took the position that it wished to ne- gotiate the noneconomic issues, and, as stated in the Re- spondent's brief, "the Company continuously requested the Union to present its entire set of proposals." Hoyman accused the company negotiators of dragging their feet in delaying meetings, and in supplying documents and pertinent information. The company attorney then of- fered, in order to speed things up, to meet on March 8, 9, and 10, and for 2 days in the following week, for a total of 5 days.9 On February 26, TWU mailed to the Respondent pro- posals on shift premiums, wages, overtime, vacation peri- ods, holidays, pensions, reporting and call-in pay, and in- surance. Its wage proposal was for a "substantial" wage increase for all unit employees, taking into account the increase in the cost of living, productivity, and the rela- tionship of the Company's wage scale with the wage scale of the industry. The March 8, 9, 10, 18, and 19 negotiating sessions were not held as they were canceled by Ziskin on March 2. Ziskin stated in his telegram to Justice on March 2 that "I was most displeased to find that the Union failed to send me copies of its economic proposals" and "we must defer the holding of our scheduled meetings for the week of March 8 and March 15 until such time as you provide us with your complete economic package." Hoyman replied by mailgram on the next day, March 3, to Ziskin, objecting strongly to the unilateral cancella- tion of Respondent counsel's unilateral cancellation of the March negotiation sessions. Hoyman, in the same message, then stated the TWU's economic demands as being a general wage increase of 15 percent, an increase in basic insurance benefits by 10 percent, plus assumption by the Company of 20 percent of the cost then charged each employee for dependent coverage, and an increase in the pension benefit based on the rise in the cost of living. On March 17, Justice again wrote Matthews asking for information previously requested. Matthews replied on March 23 by forwarding a listing of jobs and their rates, a On February 17 Matthews forwarded to the Union the Company's vacation and holiday policies. and on February 23 he forwarded the pro- gresion rates and insurance schedules wage policies, and two payroll runs. In addition, the per- sonnel manager enclosed what he numbered as 35 poli- cies and practices, which were in fact portions of the su- pervisor's manual, which the Respondent had earlier re- fused to supply, claiming that it was a confidential docu- ment. On March 29, the parties met again for collective bar- gaining and reviewed the material received by the TWU several days previously from Matthews. Matthews ad- mitted that the material was in the same form it had been in December 1975, and had no answer to Hoyman's question as to why it had not been supplied to the TWU several months earlier. On the next day, March 30, the parties met again and the Company presented eight pro- posed contract clauses concerning recognition, perfor- mance of bargaining unit work, management preroga- tives, bulletin boards, grievances, entire agreement, no- strike, and termination. The parties also met the next day. Agreement was reached on one of the Company's proposals, performance of bargaining unit work. The TWU representatives particularly objected to the Com- pany's grievance proposal, which provided that, on all unsettled grievances, the plant manager would make the final decision. The TWU's previously submitted proposal on grievances contained an arbitration clause that pro- vided that unadjusted grievances shall be settled by arbi- tration, conducted by the American Arbitration Associ- ation in accordance with its rules. b. April, May, and June On April 6, Justice wrote to Matthews with a copy to Ziskin, requesting that the Company rescind the unilater- al layoffs, transfers, reductions in pay, and changes that the Board had ordered be stopped in its decision of Janu- ary 13, 1976 (222 NLRB 204, supra), and requested a list containing all names of employees who had been affect- ed by the Respondent's unilateral actions. Ziskin replied in a letter dated April 19, reminding Justice that the Company had taken an appeal to the United States Court of Appeals for the District of Columbia and would not rescind any of the "alleged" actions cited by Justice. Ziskin also stated that the Company was ready to negoti- ate on any union proposal. The parties next met on April 27.1 ° Between the March and April meeting the southern textile industry had begun to make announcements of wage increases. Hoyman began the session by asking for a 15-percent general wage increase. Ziskin replied that the proposal for a wage increase had caught them by surprise and he would have to talk to Mr. Wellman about it. " Hoyman again asked for written job descriptions and Matthews replied that the Company tells the employees orally what their job descriptions are, denying that the Company had any written job descriptions.t 2 'o The TW'U on April 22 had forwarded additional proposals to Zisl in captioned "Revision of Wages, Seniorit). Bereaxement Pay. Jury Dut). and Breaks" I In addition to being the presidetlt of the Respondent Wellmnan was also the president of the South Carolina Textile Manufacturers Associ- ation 2 During the course of the hearing and pursuant to a subpena of Gen- eral Counsel Matthews produced three typed documellts. dated 3-18-76 ('ow imled WELLMAN INDUSTRIES. INC. 335 During the course of the meeting the company repre- sentatives presented the TWU with contract proposals regarding reporting pay, call-in pay, absence and tardi- ness rules and regulations, seniority, promotions, jury duty, and layoffs. The parties met again on the next day, April 28, in a short session, as the company negotiators reported that they had an appointment with Mr. Well- man about wages. In April, while TWU and Respondent's representatives were meeting, the Company unilaterally cut the number of employees working on the well strand line from 4 to 2 on each of the three shifts. The crimper cutter operator and baler were transferred to other departments, which required the group leader and extruder operator who re- mained to perform the duties previously worked on by the two employees who had been transferred. This job change caused the crimper cutter operators to have a pay reduction. This testimony was given by Herbert Wilson, the only bargaining unit employee to testify at the hearing. Wilson was not cross-examined and I credit his testimony. Also in April, while the parties were meeting, the Re- spondent unilaterally moved an existing plastic line to a new location where another plastic line had previously been set up. The plastic line helper who previously had been servicing one line was then required to service both lines. This change affected the workload of plastic line helpers on at least three shifts. The next to last bargaining session between the parties took place on May II. When Hoyman asked about the requested 15-percent wage increase, Matthews said it presented the Company with a problem because it was in the middle of their fiscal year, and that the Company normally moved on wages at the end or beginning of their fiscal year, which he thought to be September 30.'3 The next day, May 12, was the last negotiating session of the parties. Hoyman asked for copies of the Compa- ny's D-l and D-2 reports which had been filed with the Federal government in the past 3 years covering their in- surance plan and their pension plan. The Company agreed to provide these at the next session. Hoyman then brought to Matthews' attention that two employees on the negotiating committee with perfect attendance re- cords over a period of years had not received the gifts they were entitled to under the Company's gift rules. Matthews recessed the hearing and, upon returning to the room, stated that he had recommended to "top man- agement" that they get their awards. The meeting con- cluded with an agreement that the parties' next session would be on June 7. However, the June 7 meeting did not occur, as it was canceled by the Respondent. On June 4, Ziskin sent a The firstl a% captloned "Job Description." the second "Carding Machine Responsihis ." the third "Scouring Machine Reponsibilhiy." and all de- scrihed duties relatie thereto Matlheys, admitted that they had been prepared bh \Wendell Richardson, the superintendenlt of extile operations. but slated that Rich.rdon had nl rceiscd his permislon to prepare them - Mathe e.s had nlformed IHl)mtan t so-me point that the Company had gien ralseto itl emnployees II prior year, as fi loxss September ,. 1975, 7 4 percent 5Ma: , 1974, th percenll July 2. 1973, ht percent anid October 2, 1972, 5 prcen l he ilhern iextile diLdusir) had Increacd it, wages in Sepitemlbe 1975. and l NI;! 14974 long telegram to Hoyman stating that the Respondent had learned through the news media that the TWU had merged with the Amalgamated, and that the Respondent questioned whether the newly formed ACTWU was au- thorized to represent the employees of the Respondent. Ziskin then requested that Hoyman forward copies of the merger agreement, constitutions of the Unions, and various other documents in order that the situation could be evaluated. D. The Employees and the verger On June 7 Justice and Business Agent Johnson went to the mill gate of the Respondent at shift change time and distributed approximately 1,100 copies of a handbill that had been prepared in Hoyman's office in Charlotte, North Carolina. This leaflet read that for the last year and a half the TWU had been discussing merger with the Amalgamated, and that in the previous week delegates from 700 local unions who work in fiber and textile plants had met to vote on a proposal to merge, and that "they voted overwhelmingly to merge." The leaflet stated that on June 9 at I p.m. there would be copies of the merger agreement at the Johnsonville union office for them to study. It further stated that on June 11 at 2 p.m. and 4 p.m., at the same union hall, meetings would be held for all Wellman employees, and that a vote would be taken, in which all Wellman employees, whether union members or not, were entitled to vote for or against the merger. The leaflet was signed "Textile Workers Union of America merging into Amalgamated Clothing and Textile Workers Union." On June 11, Justice conducted the meetings as called, assisted by Business Agent Johnson and International Representative Bagwell. The merger and new constitu- tion were explained to about 40 night-shift employees at the 2 p.m. meeting and to about 60 to 75 day-shift em- ployees at the 4 p.m. meeting. Justice admitted that he told the employees that their votes would not have any effect on the merger, and that "we only wanted to let them express their feelings about it." A three-person committee then checked each person against the plant se- niority list. If the person was identified as an employee they were given a printed ballot, which contained the following two lines: ( Yes, I am in favor of the merger, and () No, I am opposed to the merger. Each person marked their ballot in privacy, and then placed it in a ballot box. The vote was 98 to none in favor of the merger. 4 Justice, when questioned at the hearing as to whether employees of the Respondent were aware of the possibil- ity of a merger, stated that a "number" of them were. He based this conclusion on the fact that the TWU pub- lished a monthly official newspaper entitled "Textile Labor" which carried articles about the pending merger in the February or March issue, and then in April print- ed a special edition just on the merger. However, Justice admitted that the newspapers were not mailed to the em- ployees' homes, but were left in stacks at the Union's office in Johnsonville. Justice admitted that this union i'4 1i the Ioird conducted eleclion in April ]1)2 there were 1.134 eli- gible x sic WELLMAN INDUSTRIES. INC. 335 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD office was normally open in 1976 only on Wednesdays from 2 to 4:30 p.m. TWU's full-time office in Andrews, South Carolina, had copies of Textile Labor available during regular working hours. E. Respondent's Actions Following the Merger On June 16, Ziskin again telegrammed Hoyman, advis- ing that "Inasmuch as eight business days have elapsed" since his prior telegram, he urged that Hoyman provide him with all data about the merger on or before June 22. Thereafter a series of actions were taken by the Re- spondent, as admitted in Respondent's brief. On June 22, Respondent notified its hourly employees by a posting on the bulletin board, that since it had not received the information it sought from the TWU: "In keeping with past practice of the Company, even though there are un- resolved legal questions concerning union-management relationships, your Company is granting a wage increase to all hourly employees effective June 28, 1976." On July 15, Arthur M. Goldberg, counsel for the ACTWU, and formerly counsel for the Amalgamated, by telegram to Ziskin demanded immediate bargaining, having forwarded the previously requested merger docu- ments to Respondent's attorney on July 6. By letter dated August 5, Hoyman on behalf of the ACTWU requested the Respondent to supply copies of its EEO-forms for the past 4 years, and also requested other equal employment data and information. The Re- spondent's only recorded action was to forward the letter to its counsel. 15 In August, Respondent Supervisor Evans unilaterally informed employees in the fiber spinning department that scheduled overtime would no longer be voluntary, but would be mandatory, and if employees did not work such overtime, they would receive demerit points under the Company's absence and tardiness rules. Matthews justified this change in that formerly a sufficient number of employees volunteered to work overtime, but had ceased doing so. On September 17, the third shift in both the wool scouring and preparing departments was eliminated by the unilateral action of the Respondent, which may have resulted in the layoff of employees. In December, the Respondent unilaterally announced to its bargaining unit employees that it was going to con- tribute $10 to the purchase of each employee's safety shoes. On December 29, the Respondent unilaterally notified its bargaining unit employees by a memorandum entitled "Medical Insurance" that effective January 3, 1977, it was increasing various medical benefits for its employees at no cost to them, and was also increasing dependent benefits. On January 12, 1977, the Respondent unilaterally noti- fied its employees through a memorandum that the Com- pany's existing perfect attendance award system would be continued, but with a better selection of awards. 11 The ACTWU filed unfair labor practice charges on August 30 in Case I -CA-6 704. elting forth March I is the date n %khuch the Re- xpondent commenced to refuse to bargain March I i the earliesl date polssible within the limilations period oif Sec 10((h) In January 1977, 30 or 35 employees in Respondent's wool division were unilaterally laid off. These layoffs caused the transfer of other employees to different jobs, and a reduction in pay for those employees who were transferred to lower paying jobs. On or about January 28, 1977, the Respondent unilat- erally laid off all employees in its fiber division. Mat- thews testified that the fiber employees were laid off be- cause their natural gas supplier, Carolina Pipeline Com- pany, notified Respondent that no more gas would be supplied. Part of the plant continued to operate, using propane gas. F. The History of the Merger In 1974 at a regular biennial convention of the TWU, a resolution was passed by the delegates in favor of a merger with the Amalgamated. 16 Thereafter informal meetings between officials of the TWU and the Amalga- mated were held about the possibility of merging the two unions.' 7 A merger committee was established by the TWU consisting of six persons, the general president serving as the chairman, the general secretary-treasurer, and four vice presidents who were also regional direc- tors. Hoyman, as a vice president and southern director of the TWU, served on the six-person committee. The Amalgamated designated a like committee, and the two committees met in the summer of 1975 to examine the structure of each union, and to discuss how a merger could be accomplished. Further meetings were held and by March the joint committee had prepared four principal documents: an "Agreement and Plan of Merger and Consolidation" (merger agreement); the "Constitution" of the merged union; the "Textile Division Agreement"; and a "Decla- ration of Trust." The merger agreement, the basic document in effectu- ating the merger of the two International Unions, was lengthy and carefully drafted. The Respondent in its brief states that certain provisions are relevant and I set those out below, together with other provisions not cited by the Respondent, which I also find to be relevant: 1. (Second Whereas Clause). WHEREAS, the of- ficers of the ACWA and TWUA believe that a merger and consolidation of their respective Inter- national Unions into a new combined International Union will establish a more effective instrumentality for the purpose of realizing the present objectives of the two Constituent Unions: 2. Article 3 provides that the ACTWU would have four officers, with the offices of president and El As reported in the pecial M;arch editimi of Ihe ifficial pubhlication if the Amalgamated, the iiexspaper Adiance" ( C Exh 44). in 1037 the already xisling Amalgalnated, an Ilntrllatinill unionll of cnlplo es il Ihe apparel industry. took a aclive part in the nle\xl, commenced orga;- nizing campaigt for extile xiorker In tliaht ear, a Textile Workcers Or- ganizitg Commiltee (\VOC) \;as formed to carrx iout the campaign with Anialganmated leaders il minly lf the key plio,. and supplying much of the fllliCtal uppOl 11 I1 3Q. he l\\)' hbecmC the W\VU an autollomonls internallionald labor rgaizlatllon I7 The tlW L'1 had 174.(XX) nlnlcrs anid 718 local unlllns The Anmalga- nlatcd had 305,(X) rnllhbclts land 71)7 locals "Dl)rectrr\ of National Ulll, ns alil Enlplox)e As,ociaiill"f: S Deparillnellt of I hor. Hurea;lu of I abhor Sialtiiics. 174 d WELLMAN INDUSTRIES, INC 337 secretary-treasurer being filled by the then general president and general secretary-treasurer of the Amalgamated, and with the offices of senior execu- tive vice-president and executive vice-president being filled by the then general president and secre- tary-treasurer of the TWU. It also provided for a total of 46 vice-presidents, with the 26 current vice- presidents of the Amalgamated and the 20 current vice-presidents of the TWU filling these positions. The four officers mentioned above and the 46 vice- presidents constituted the General Executive Board. 3. Article 4(a) provides that upon the effective date of the consolidation, all the property, real, per- sonal and mixed, and all right, title and interest, either legal or equitable in any monies, funds or property, tangible and intangible the ACWA and the TWUA, and their respective separate names, trademarks and emblems, and all debts due to each of them, all the rights, privileges and powers and every other interest of each of them of whatever nature, shall by virtue of the merger of ACWA and the TWUA be transferred to and vested in the ACTWU. 4. Article 4(c) reads: The ACTWU shall be deemed, for all purposes, to be a combination and continuation of the ACWA and the TWUA. Nei- ther of such organizations shall be deemed for any purpose, to be dissolved, terminated or discontin- ued, but upon the Effective Date they shall be merged and continued as a single organization, the ACTWU, to be governed by the Constitution of the ACTWU, which shall be an amendment to and sub- stitute for the present separate Constitutions of the ACWA and the TWUA. 5. Article 5 reads: Notwithstanding the Consoli- dation of each of the constituent Unions into the ACTWU on the Effective Date, the ACTWU shall, within its internal organization, maintain a separate Textile Division, as provided in Exhibit C annexed hereto and made a part thereof. The establishment and operation of said Textile Division shall not be deemed to reconstitute either the ACWA or the TWUA as separate unincorporated organizations for any purpose whatsoever, including the purpose of determining the rights of any third parties or de- termining the rights of any members, joint board or local of the ACTWU, such rights being determined solely by the New Constitution and This Agree- ment, including Exhibit C hereto. 6. Article 19 provides that each Local Union and Joint Board in good standing on the effective date of the merger shall retain its charter and become, by virtue of the Consolidation, a chartered Local Union or Joint Board of the ACTWU. 7. Article 20 reads: The Consolidation of the ACWA and the TUA is not intended to affect any presently existing collective bargaining agree- ment or any federal, state, provincial or territorial certification of the ACWA or the TWUA, but all rights, privileges, duties and responsibilities vested in either the ACWA or the TWUA pursuant to such contracts or certifications are intended to be vested in the ACTWU by virtue of the Consolida- tion. The Textile Division document, a lengthy writing in itself, sets forth the mechanics and structure of operating this division. It provides that "The Regional and Indus- try Directors, business agents, joint board managers, field representatives and organizers employed by TWU on the date of merger shall constitute the staff of the Textile Di- vision." It also provides that the current general presi- dent of the TWU shall be the director of the Textile Di- vision for 6 years from the date of merger. The proposed constitution for the ACTWU contained clauses and lan- guage taken from the constitutions of both International Unions. The Declaration of Trust concerned the holding in trust of certain shares of stock of the Amalgamated Bank of New York. In March the merger documents were considered and approved by the TWU's general executive board consist- ing of the two general officers and 20 vice presidents. The documents were also approved by Amalgamated's general executive board. On March 18 the top officers of both Unions executed the merger agreement. Thereafter, on Monday, May 31, 900 TWU delegates assembled at their 1976 convention in Washington, D.C. Most of the delegates had been elected by the members of over 700 local unions, but some of the delegates had been elected by joint boards, as the TWU constitution provided that each joint board was entitled to elect one delegate. The constitution also provided (art. 12, sec. 10), that each delegate had to have been a member in good standing, 18 for at least I year prior to the convention, except members of local unions that had been chartered for less than 1 year. Such new locals could elect dele- gates who had become members upon the granting of the charter of the union. No delegates were present who were employees of the Respondent.' The TWU convention continued on June I and ad- journed on June 2 after the delegates approved the merger. The Amalgamated commenced its special con- vention on June I and adjourned on June 2, after its del- egates had also approved the merger. On June 3, the duly elected delegates of both unions met jointly and adopted the constitution, forming the ACTWU. The headquarters of the ACTWU was New York City, which had been the headquarters city for both the TWU and Amalgamated. G. Analysis and Conclusions 1. The merger It is the position of the General Counsel and the ACTWU that by reason of the merger between the 18 A personl ss ho had been admitted to the tlnion, and ilot more han 3 monlhs delinquent in dues I Three delegates from L[ocal 1948 located in Roanoke Rapids. North Carolina. anld one delegate from I ocal 1949 Staesboro. Georgia. sere present These delegates Dere or had been employees of J P Stevens Conlpan . an employer %ih shomn the TWIU had been conducting orga- nlitig campaiglns for he past 13 years Although the deiegates had not beel des-paling members the TI at the conlelinlon had specaaI falilred Ile issulanlce of charters to these I\ i lo cals. \khlch allos ed tIhe dClcgat. to0 iartlld 1ti c[clls rillio1 WELLMAN INDUSTRIES. INC 337 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TWU and the Amalgamated, which was validly effectu- ated, that the ACTWU became the successor of TWU, and as such was entitled to the TWU's right to represent Respondent's employees. Therefore, they argue, the Re- spondent violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with ACTWU as its employees' exclusive bargaining representative. Totally in disagreement with these contentions, Respondent maintains that ACTWU did not succeed to TWU's bar- gaining rights because the merger2 0 resulted in a new and different labor organization, which was not the labor organization certified by the Board as the representative of its employees, that its employees had no opportunity to vote on the merger, and that there was an absence of continuity between the TWU and ACTWU. Respondent admits that it would not bargain with ACTWU, but denies that its actions constituted a violation of Section 8(a)(5) and (1). Whether the ACTWU was a new organization is not the proper test for determining whether one union suc- ceeds to the bargaining rights of another union. As stated in N.L.R.B. v. Commercial Letter, Inc., 496 F.2d 35, 39 (8th Cir. 1974), "Whether or not a merged union should continue to be considered the bargaining representative of a unit of employees depends on a factual determina- tion-is it a continuation of the old union under a new name or is it a substantially different organization?" Ap- plying the facts of the present case to this principle, I find that the ACTWU was a continuation of the TWU under a new name. The wording of the merger agreement shows the clear intent of the parties that there be a continuation of the TWU as well as the Amalgamated. The formal name of the document not only calls it a merger agreement, but also a consolidation agreement thereby seeking to accrue to itself the legal benefits of both the doctrine of merger and the doctrine of consolidation. The whereas clause re- ferred to by the Respondent in its brief refers to the ACTWU as a new combined International Union, not merely a new union. Of paramount importance in setting forth the two Unions' intent was the first sentence of sec- tion C of article 4 which reads "The ACTWU shall be deemed, for all purposes, to be a combination and con- tinuation of the ACWA and the TWUA." The ACTWU was structured so as to integrate therein every facet of the TWU, its officers, employees, mem- bers, local unions, joint boards, property, funds, debts, collective-bargaining agreements, and Federal certifica- tions. The two former top officers of TWU became two of the four top officers of the ACTWU. In addition, the former president of TWU also became the director of the Textile Division. The 20 vice presidents of TWU became the vice presidents of the ACTWU, and joined with Amalgamated's 26 vice presidents to form its gener- al executive board. These vice presidents, of whom Hoyman was one, retained the duties they possessed 10 Respondent does not challenge the legality of the merger of the TWU and the Amalgamated The record is clear that these tno large In- ternational Unions, carefully and prudently over a period of 1-1/2 years held joint committee meetings, drafted appropriate documents, and at a joint consention of delegates elected in accordance with their clstitu- tions, approved the merger prior to the merger. All employees of TWU remained employees of ACTWU, with no interruption of their em- ployment. All members of the TWU automatically became members of ACTWU, with their date of mem- bership effective as of their original membership in TWU. All property, money, and funds owned by either TWU or Amalgamated was transferred to ACTWU. All debts and liabilities of the constituent Unions were as- sumed by the ACTWU. Each local union and joint board holding a charter from the TWU was to be deemed as holding that same charter from the date of its original issue. The merger agreement also provided that the consolidation was not to affect any presently existing collective-bargaining agreement or any Federal certifica- tion. It is true that the employees of the Respondent did not know of the merger, and did not vote on it prior to its consummation. However, they were not members of TWU at the time of the convention, and had no right to vote under its constitution. Congress specifically autho- rized labor organizations to prescibe their own rules on admission to and retention of union membership (Sec. 8(b)(l)(A) of the Act), and thereby necessarily vested in unions a large measure of discretion in the management of their internal rules and affairs. There was therefore nothing improper or unreasonable in the TWU's restrict- ing the right to vote to delegates from a chartered local union. No local union had been chartered in Johnsonville by the TWU, because no collective-bargaining agreement had been reached with the Respondent since the TWU's certification in 1972. But for the Respondent's continued unlawful refusal to bargain as found by the Board and courts in the two earlier decisions, in the ordinary course of industrial relations a collective-bargaining agreement would have been reached long before the convention, and thereupon a local union would have been chartered. Delegates from the chartered local in Johnsonville would then have been present with a right to vote. The Respondent's well-documented intransigence over a period of 3 years prevented a local union from being chartered and concomitantly denied the employees the right to have delegates at the convention to vote on the merger. The Respondent's employees were prospective mem- bers of the TWU, but as found in Commercial Letter. Inc., supra, it is not required that all prospective mem- bers of a union must be given the chance to vote on in- ternal union reorganization, absent the showing that the votes of these employees could have changed the results of the election. It is self-evident that there was no way that the votes of the Respondent's employees could have affected the results of that convention in Washington. While the vote of the 98 employees on June 11 to ap- prove the merger was clearly after the fact, and had no effect on the merger itself, it does point up that there was no opposition registered by any employee who did vote, to the merger. Also, the record does not disclose that there was ever any opposition expressed at any time by any employee of the Respondent to the merger. The employees were well aware of the merger after its occur- rence as not only the TWU distributed leaflets to them WELLMAN INDUSTRIES, INC. 339 about its occurrence, but also the Respondent on June 8 posted large notices throughout the mill discussing the merger in detail. It is well settled that in the case of the merger of two unions, if there is continuity of representation, manage- ment must bargain with the new union. On the other hand, if there is no continuity of representation, manage- ment need not bargain with the new union. Retail Store Employees Union, Local 428, Retail Clerks International v. N.L.R.B., 528 F.2d 1225 (9th Cir. 1975); N.L.R.B. v. Commercial Letter, Inc., supra; American Bridge Div., United States Seel Corporation v. N.L.R.B., 457 F.2d 660 (3d Cir. 1972). Of paramount importance is that the merger in this case in no way altered the employees' continuity of rep- resentation with the Respondent. The International Union's headquarters would still be in the same far-off city of New York, but more importantly, the union hall had that had been accessable to them in the village of Johnsonville since 1972, would still be 2 miles away from the plant in the same place. The joint board office would still be 30 miles away in Andrews. The southern director of the Textile Division would still be in Charlotte. At the negotiations scheduled for June 7, the same negotiating team of Hoyman, Justice, and Johnson would have sat with the employees committee at the bargaining table, ready to continue bargaining with the Respondent's ne- gotiators, just as they had done during the prior 5 months. Plainly, in the real world of the employees of the Respondent in the small South Carolina coastal area of Johnsonville, Andrews, and Georgetown, there was no change in the day-to-day operations of their represen- tative whether called TWU or ACTWU. The identical activities of the former organization, TWU, after June 3 would be continued under a new name, ACTWU. On all the facts of record, I find and conclude that Amalgamated Clothing & Textile Workers Union, AFL- CIO-CLC, is a continuation of, and a successor to the Textile Workers Union of America, AFL-CIO-CLC. N.L.R.B. v. Commercial Letter, Inc., supra, National Carbon Company, a Division of Union Carbide, etc., 116 NLRB 488 (1956); N.L.R.B. v. Harris-Woodson Company, Inc., 179 F.2d 720 (4th Cir. 1950). 2. The refusal to bargain a. Independent violations In the prior Wellman cases, among the Respondent's actions which the Board found violative of Section 8(a)(l) and (5) of the Act were its unilateral actions in the following instances: laying off of employees, transfer, and reduction in pay or classification. The same viola- tions must be found in the present case as to the Respon- dent's unilateral actions in the elimination of the well strand line jobs, the elimination of plastic line helpers, the general wage increase, the voluntary overtime change, the elimination of the wool scouring and prepar- ing department shift, the contribution to the purchase of safety shoes, the increase in insurance benefits, the im- provement in attendance awards, and the layoffs in Janu- ary 1977 of employees in the wool division and fiber di- vision. Unquestionably, all involved terms and conditions of employment of employees in the bargaining unit, in which the Union was entitled to be consulted prior to their institution. Wellman Industries II and Wellman In- dustries III; N.L.R.B. v. Benne Katz etc., d/b/a Williams- burg Steel Products Co., 369 U.S. 736 (1962). The main defense raised by Respondent in his brief is that "such actions were not contemplated or instituted until after the merger of the TWUA and ACWU" and that "such actions would not have unilaterally taken place had the parties' bargaining relationship not been disturbed." Such a bootstrap argument is no defense to a violation of the Act. The Respondent overlooks the fact that it was the Company who terminated the bargaining relationship, not the Union. The Respondent well knew there was a certified collective-bargaining representative for its employees, and when it effectuated the unilateral changes, it proceeded at its peril. It is found that, by the unilateral actions set forth above, the Respondent violated Section 8(a)(1) and (5) of the Act. b. Failure to provide information It is well established that an employer is required to provide relevant information needed by the bargaining representative for the proper performance of its duties. NV.L.R.B. v. Acme Industrial Co., 385 U.S. 432, 435-436 (1967). The Respondent admits that it refused to supply three items of information requested by the Union and it asserts various defenses for each refusal. The relevance of the information sought is not questioned. I find no merit in the Company's defenses. 1. List of employees: The names of the employees sought by the Union, in its letter of April 6, were the employees who had felt the force of the Respondent's unilateral actions which the Board had found unlawful in Wellman Industries Il. When Ziskin replied to the Union's request 2 weeks later, his defense was that the Company had taken an appeal to the United States Court of Appeals, inferring that such action blocked the Union's right to have such information. Such is not the case. In Wellman III, the Board Order provided that the certification year would begin on the date that the Re- spondent commenced to bargain in good faith with the Union. Whether Respondent considered November 25, 1975, the date Matthews first forwarded information to the Union as the initial date, or January 20, the date on which the parties first met at the negotiation table, it is self-evident that the initial year of certification was still in effect, and the Respondent had the duty to bargain with the Union during that period as the certified bar- gaining representative with the concomitant duty to pro- vide it with this relevant information. 2. Job descriptions: While Matthews denied at the April 27 meeting that the Company had written job descrip- tions, the subpenaed documents produced by the director of personnel show otherwise. These documents set forth duties and responsibilities of employees and the Union was entitled to this information in order that it may per- form its job for the employees it was representing. 3. D-I and D-2 forms: Respondent's defense for its failure to supply forms D-l and D-2 related to its insur- ance and pension programs was because bargaining was WELLMAN INDUSTRIES, NC. 339 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD disrupted by the merger. However, the Union requested these annual Federal Government forms on May 11, which gave the Company ample time to supply them before the next scheduled meeting, had it been bargain- ing in good faith. As stated supra, it was the Company who broke off the bargaining. These documents relate to the Company's fringe benefits and the Union is entitled to this information. 4. Equal employment data: The Respondent does not contest the relevancy of this data, but raises as its de- fense that it could not comply with the Union's request for EEO forms and other such data because the merger had raised the issue of the ACTWU's representational rights. The Respondent was proceeding at its peril, as it knew that it had been bargaining with the certified bar- gaining representative, and that the certification had not expired. The Union was entitled to this admittedly rel- evant information. In sum, the Company's adamant refusal to furnish the relevant information requested by the Union constitutes independent violations of Section 8(a)(5) and (1) and, in addition, lends credence to my subsequent finding that the Company negotiated in bad faith. N.L.R.B. v. Ra- mona's Mexican Food Products, Inc., 531 F.2d 390 (9th Cir. 1975). c. Discharge of Joye and Filyaw As was stipulated at the hearing, Joye and Filyaw were discharged by the Respondent in November 1975 for violating its on-call rule, a rule that had been unilat- erally imposed by the Company. The Board had found this on-call rule violative of the Act in Wellman III. The Respondent's discharge of these two employees therefore constitutes a violation of Section 8(a)(1) and (5) of the Act. d. Surface bargaining Section 8(d) of the Act defines the duty of parties to bargain as "the mutual obligation . . . to meet at reason- able times and confer in good faith with respect to wages, hours, and other terms and conditions of employ- ment, or the negotiation of an agreement .... " It has long been recognized that the essential element in the bargaining principle is the "serious intent" to reach a common ground. .L.R.B. v. Insurance Agents' Interna- tional Union. AFL-CIO [Prudential Insurance Co.], 361 U.S. 477, 487 (1960). Of course, such terms only have meaning when applied to "the particular facts of a par- ticular case." XL.R.B. v. American National Insurance Co., 343 U.S. 395, 410 (1952). In the instant case it is nec- essary to look at the whole course or pattern of conduct, including the previous relations of the parties, as well as the negotiations at the bargaining table, in order to deter- mine if the statutory obligation has been satisfied. As was observed in N.L.R.B. v. Herman Sausage Co., Inc.: . . . bad faith is prohibited though done with so- phistication and finesse. Consequently, to sit at a bargaining table, or to sit almost forever, or to make concessions here and there, could be the very means by which to conceal a purposeful strategy to make bargaining futile or fail. Hence, we have said in more colorful language it takes more than mere "surface bargaining" or "shadow boxing to a draw," or"giving the Union a runaround while pur- porting to be meeting with the Union for [the] pur- pose of collective bargaining. 2 In agreement with the General Counsel and the Charging Party, I find that the Company conducted its negotiations with no desire or intention of reaching any agreement with the Union. The certification of the TWU was in June 1972. Thereafter, the Respondent carried its flat refusal to bar- gain through the Board and the courts all the way to the Supreme Court. Only when its petition for certiorari was denied in November 1975 did it then agree to meet with the Union. While the Company's representatives met with the Union's representatives at 11 bargaining sessions over a period of 5 months, these sessions were a sham, a mere pretense at negotiating with the Union. 22 From the receipt of the Union's initial request for information in mid-November 1975, the Respondent delayed, procrasti- nated, and grudgingly supplied partial information, much of which was inaccurate and out of date. The Respon- dent took 35 days to supply the Union with basic infor- mation concerning benefits and bargaining unit employ- ees. The original information requested by the Union was not fully turned over to the union negotiators until Matthews did so at a meeting on March 23, a period of 131 days. When the personnel director had replied to the Union's letter requesting the information, he advised that the data would be forwarded around the first week in December 1975. This was a reasonable date, as Matthews admitted that the material he turned over in March was in the same form then as it had been when requested in the previous November. An example of the Respondent's failure to supply ac- curate company data to the Union was the outmoded Aetna Group Plan of insurance, a booklet that was pro- vided by the Respondent. While Matthews admitted that, since the previous November, there had been increases in employee benefits over the schedule of benefits listed in the booklet, he contended that the Company had no record of these increases. This is contrary to the most elementary standards of business management and is beyond belief. When the Union requested the supervi- sory manual, which clearly contained material relevant to employee conditions of employment, benefits, and dis- cipline, the Company refused, claiming that it was "con- fidential." It is well settled that an employer's bargaining obligation not only includes the obligation to furnish rel- evant information requested by the collective-bargaining representative but also to furnish it with reasonable promptness. The Respondent failed completely to turn documents over to the Union within a reasonable period of time. B. F. Diamond Construction Co., Inc., and Dia- mond Manufacturing Company, Inc., 163 NLRB 161, 175, 176 (1967), enfd. 410 F.2d 462 (5th Cir. 1969). 2' 275 F 2d 22), 232 (15h Cil 19bO) Re.podii l',,S indld tc in tt r1oritihs piltir o N.arch 1. tlit ffcci.it 1le olf I (he 10(h) priiod. , rcklliic a,i bhaickgrouni d i1m c.aluw.itig thi (Olll- pi,\' conduct fter tht latir' WELLMAN INDUSTRIES, INC. 341 The Respondent's actions in scheduling negotiating sessions show a policy of delay and procrastination. The Union's initial, reasonable request that the negotiations commence in mid-December was ignored, as was their next request that the parties have their first session in early January. On March 2 the Company abruptly can- celed five scheduled meeting days, the first to be March 8, because the Respondent's attorney in New York had not been furnished copies of proposals the Union had forwarded on February 26. At the prior meeting, Febru- ary 13, after Hoyman had complained that the Company was dragging its feet, the company attorney had agreed to speed things up by meeting on those five March dates. The Company's speed-up resulted in the Respondent's unilateral cancellation of all five scheduled negotiating days for the following month. Finally, the Respondent canceled the meeting scheduled for June 7 under the guise that it had "learned through the news media" of the merger of the TWU and the Amalgamated. An em- ployer with a serious intent to reach an agreement would not have canceled that meeting, but would have met and talked over the merger and its ramifications with the union negotiators. Respondent's unreasonable delay and avoidance of meeting is strong evidence of bad faith. Ex- change Parts Co. er al., 139 NLRB 710 (1962), enfd. 339 F.2d 829 (5th Cir. 1965). Also, indicative of the Respondent's bad faith was the manner in which it treated contract proposals, both its own, and those of the Union. The Union supplied the Company with substantial noneconomic proposals on December 12, 1975, and February 26. The Company from the first session demanded that the Union supply it with "its entire set of proposals," economic as well as noneconomic, and yet would not furnish the Union with existing company data to allow the Union to supply a complete proposed contract. Also, Wellman did not supply the Union with any contract proposals unitl 3 months after the Union had presented its initial propos- als, and these were in no way complete proposals, con- taining no clauses relating to wages and basic economic matters, and mostly consisted of stock clauses, such as preamble, recognition, bulletin boards, no strike, and ter- mination. One of its other proposals, however, entitled "Grievances," was anything but a stock clause. It pro- vided for a five-step grievance procedure with the griev- ing employee presenting his grievance to first his imme- diate supervisor, next his department head, then the plant manager, and then the personnel director. The fifth and final step was presenting the grievance to the general manager, whose decision "shall be final and binding." This violates the whole concept of fair play in labor rela- tions as it denies the employee the right at some stage in his dispute to have a neutral party pass on the grievance. This proposal lacked "the slightest chance of acceptance by a self respecting union." N.L.R.B. v. Reed & Prince Mfg. Co., 205 F.2d 131, 139 (Ist Cir. 1953). The Respondent's second group of proposals, received I month later, largely contained verbatim provisions from the employee policy manual or from the supervi- sory manual. 23 21 AS (Generil C LItmel pominted -ut In hi, brief In G.C. 31, Respondent's "Reporting Pay, Call-In Pay" proposal is identical to the supervisory manual provisions on Reporting Pay and Call-in Pay except for the deletion of an internal reference to the "Change of Address" section. The "Absence and Tardiness Rules and Regulations" proposal is identi- cal to the same provision in the employee Policy Manual, G.C. 25, pp. 5 and 6. The initial paragraph of the "Seniority" proposal is the same as the initial paragraph of the Length of Service provision in the employee Policy Manual. G.C. 25, p. 2 the remain- der of the "Seniority" proposal is identical to por- tions of the Service Records provision of the super- visory manual, G.C. 47. The "Promotions" propos- al, although reworded, is substantively the same as the supervisory manual provision. The "Jury Duty" proposal is identical to the supervisory manual pro- vision except for the deletion of the first sentence. The "Layoffs" proposal is identical to the supervi- sory manual provision on layoffs. The submitting by the Company, as contract propos- als, verbatim sections of the supervisory manual points up the Respondent's bad faith when Matthews originally refused to supply the manual because it was a "confiden- tial" document. Had the Respondent wanted to bargain in good faith it would have turned both manuals over to the Union months before, when first requested. While the Respondent contends in its brief that it did make "concessions" at the bargaining table, it can only, in support thereof, point to its acceptance of one propos- al-the performance of bargaining unit work. Its asser- tion that progress was being made toward reaching an accord on two other contract clauses, one on grievance procedures and the other on the establishment of an em- ployee bulletin board, accentuates the paucity of accom- plishment over a bargaining period of 5 months. Respondent's bad-faith bargaining is illustrated in its handling of the Union's request for a 15-percent raise made on April 27 by Hoyman. At the next meeting, May 10, when Hoyman pressed the Respondent about the wage increase, he was told that it presented a problem to the Company, because normally the Company gave wage increases at the end or beginning of the fiscal year, September 30. However, once the Respondent terminat- ed bargaining with the Union in June, an increase in wages at that time ceased to be a problem, as on June 22 the Respondent notified its employees that "In keeping with past practices" a wage increase was being granted effective June 28. Finally, the Respondent's own actions in June furnish a test of what the Company considered as a reasonable time in which to furnish information to the other party. On June 4, by telegram, Ziskin had requested of the Union voluminous documents on the merger. On June 16 Ziskin again telegrammed the Union, petulantly remind- ing Hoyman that 8 working days had already passed, and urged that the documents be forwarded. Then, on June 22, unable to wait any longer for the requested in- formation, the Company effectuated the raise. Thus the Company, by its actions, deemed a period of 18 calendar days as a reasonable amount of time in which a party WELLMAN INDUSTRIES, INC 34t 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD should forward documents to the other. Yet, when the Union requested information from the Company, it took Respondent 35 days to present partial data and 131 days to supply complete information. The practices followed by the Company in its dealing with the Union make a mockery of the collective-bar- gaining process and the objectives of the Act. The Re- spondent's past labor relations record, its numerous indi- vidual acts constituting independent violations of the Act, its failure to turn over relevant documents to the Union in a reasonable period of time, its turning over in- complete and inaccurate information, its constant demand for a complete proposed contract, its delay in the scheduling of sessions, and its abrupt cancellations of already scheduled sessions, its refusal to submit proposals for 3 months, the fact that no substantial agreements or concessions were made in 5 months of bargaining, all point up to the inescapable conclusion that the Company negotiated with the Union in bad faith and with no inten- tion of entering into any final or binding agreement. I find, as alleged in the complaint, that the Company has violated Section 8(a)(5) and (1) of the Act. Kohler Co., 148 NLRB 1434 (1964); Crystal Springs Shirt Corporation, 229 NLRB 4 (1977). CONCLUSIONS OF LAW 1. Wellman Industries, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Amalgamated Clothing & Textile Workers Union, AFL-CIO-CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. At all times since June 3, 1976, Amalgamated Cloth- ing & Textile Workers Union, AFL-CIO-CLC, has been a successor to Textile Workers Union of America, AFL- CIO-CLC, succeeding to all certification rights of its predecessor. 4. The foregoing labor organizations constitute a single continuing entity, herein identified as the Union. 5. All production and maintenance employees includ- ing laboratory technicians, plant clerical employees, scheduler and follow-up man, process control techni- cians, maintenance technician and quality control techni- cians, employed at the Employer's Johnsonville, South Carolina, plant, excluding office clerical employees, pro- fessional employees, sales personnel, seasonal employees, messenger and mail clerk, fabric designer, watchmen, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 6. The Union was and is, at all times relevant here, the exclusive bargaining represenative of the employees in the unit above described for purposes of collective bar- gaining with respect to wages, rates of pay, hours of em- ployment, and other terms and conditions of employment within the meaning of Section 9(a) of the Act. 7. Respondent, by refusing since on or about March 1, 1976, to bargain in good faith with the Union, and by re- fusing since on or about June 7, 1976, to recognize, or to meet and bargain with, the Union as the representative of its employees in the unit above described violated Section 8(a)(5) and (1) of the Act. 8. By eliminating the well strand jobs and the plastic line helpers job, by granting a general wage increase, by making overtime mandatory in the fiber spinning depart- ment, by eliminating the third shifts in the wool scouring and preparing departments, by laying off employees in its wool division, by improving benefits in the insurance program, by improving the awards for attendance, by contributing money to the purchase of safety shoes, all to employees in the bargaining unit, between March 1, 1976, and February 1977, without affording the Union the opportunity to bargain about such matters, and by re- fusing to furnish the names of employees affected by Re- spondent's action in Wellman Industries II, by refusing to furnish data relative to its insurance, pension, and affir- mative action programs, the Company has engaged in and is engaging in further unfair labor practices within the meaning of Section 8(a)(5) of the Act. 9. By the foregoing conduct, the Company also has in- terfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act and has thereby engaged in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 10. By discharging Alton Joye and Bobby Filyaw for violating its on-call system which had been implemented without first notifying and consulting with the bargain- ing representative, the Company violated Section 8(a)(l) and (5) of the Act. 11. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY 2 4 Having found that the Respondent has engaged in unfair labor practices in violation of Section 8(a)(5) and (1) of the Act, I shall recommend that it cease and desist thereform and take certain affirmative action designed to effectuate the policies of the Act. It will be recommended that the Respondent recognize and, upon request, bargain with the Amalgamated Cloth- ing & Textile Workers Union, AFL-CIO-CLC, and its designated agents, as the exclusive representative of all employees in the unit herein found to be appropriate for the purpose of collective bargaining, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, including produc- ing relevant and essential documents and information when requested by the Union, and, if an understanding is reached, embody such understanding in a signed agree- ment. It will also be recommended that the Respondent, having illegally discharged two employees, shall offer them full reinstatement, with backpay computed on a 24 Charging Party argues that because of the labor relations history of Respondent, characterized by its persistent defiance of the Act. Respon- dent should be required to reimburse the Union for all costs and expenses in this litigation, and for all salaries and expenses reasonably incurred in the preparation for and participation in the II bargaining sessions with the Respondent In the past the Board has refused to aard costs unless it is absolutely lear that one of the parties has expended the Board's time and resources i "frivolous litigation" Tidee Prodruct. ,ic., 194 NLRB 1234 (1972) 1 do not classify the current litigation as frivolous. and therefore the re- quest of the Charging Party is denied WELLMAN INDUSTRIES, INC. 343 quarterly basis plus interest at 7 percent per annum as prescribed in F. W Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977), from the date of discharge to the date of proper offer of reinstatement. It will also be recommended that the Respondent cease and desist from laying off, transferring, or reducing the pay or classification of employees, or changing the number of employees on lines, or changing its overtime system, or eliminating shifts, or changing insurance bene- fits or attendance awards, or making contributions to- wards safety shoes, or making any changes in terms or conditions of employment of employees in the bargaining unit, without bargaining with the Union about the matter. In addition it will be recommended that, if requested by the Union to do so, the Respondent rescind the uni- lateral layoffs, transfers, reductions in pay or classifica- tion, changes in the number of employees or lines, changes in its overtime system, and changes in the number of shifts. Since it is possible that the Respondent's violations re- sulted in loss of employment or earnings to employees, they are entitled to compensation therefor, and effectu- ation of the policies of the Act requires it. It will there- fore also be recommended that the Respondent make whole any employee who lost employment, was reduced in employment, or lost wages or other benefits as a con- sequence of the Respondent's unilateral layoffs, transfers, reduction in pay or classification, or changes in the number of employees on lines or in the number of shifts. As stated by Administrative Law Judge Charles W. Schneider in Wellman III, [222 NLRB at 208]: This is not to say that all the employees affected by the unilateral actions are consequently and ipsofacto entitled to payments or reclassification of some kind. Whether any particular employee would have been laid off, transferred, reclassified, reduced in pay, etc., but for the unfair labor practices, and for what periods of time, and entitled to reinstatement, or to reimbursement and if so in what amount, are questions to be resolved in a compliance proceed- ing, if the parties are unable to reach agreement on such issues. Suffice to say here that the Respon- dent's unfair labor practices require an effective re- medial order, and, in my judgment, nothing less will suffice to remedy the unfair labor practices Clover- leaf Cold Storage Co., 160 NLRB 1484, 1493-95 (1966). Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER 2 5 For the purpose of determining the duration of the certification, the initial year of certification shall be 25 In the eenl no excepttionl, are filed as prosided h SeC It2 46 of the Rules and Rcgulations of the Naional laboI r Relations Board. the findings, conclusion, aind recomnlended ()rdel hrein shll, a. pi-\o did deemed to begin on the date the Respondent commences to bargain in good faith with the Union as the recog- nized exclusive bargaining representative in the appropri- ate unit. 26 The Respondent, Wellman Industries, Inc., Johnson- ville, South Carolina, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize and bargain collectively with Amalgamated Clothing & Textile Workers Union, AFL- CIO-CLC, and its designated agents, as the exclusive representative of its employees in the following appropri- ate unit with respect to rates of pay, wages, hours of em- ployment, and other terms and conditions of employ- ment. All production and maintenance employees in- cluding laboratory technicians, plant clerical em- ployees, scheduler and follow-up man, process con- trol technicians, maintenance technician and quality control technicians employed at our Johnsonville, South Carolina plant, excluding office clerical em- ployees, professional employees, sales personnel, seasonal employees, messenger and mail clerk, fabric designer, watchmen, guards and supervisors as defined in the National Labor Relations Act. (b) Refusing to produce relevant and essential docu- ments and information, when requested by the Union, in- cluding the names of employees affected by Respon- dent's actions in Wellman 111, job descriptions and insur- ance, pension, and affirmative action data. (c) Laying off, discharging, or transferring employees, or reducing their pay or classification, or changing the number of employees on lines, or changing its overtime system, or eliminating shifts, or changing insurance bene- fits or attendance awards, or making contributions to the purchase of safety shoes, without first bargaining with the Union about the matter. (d) Taking any action affecting conditions of employ- ment of employees in an appropriate bargaining unit without first notifying and consulting the bargaining rep- resentative. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaran- teed by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Upon request meet and bargain with the above- named labor organization and its designated agents as ex- clusive representative of all its employees in the aforesaid appropriate unit with respect to wages, rates of pay, hours of employment, and other terms and conditions of iII Sc 102 4 of the Rules and Regula3lltns. he adopted h the Board and become IDi findings. colrclulion. and Order, and all objectionll hereto shall he deemed aied for all purpos,c i Just a. I[1 H (critn 'f Ill. he purpose of IIi, pil\ iOr1 is iO ilnsure hat the enipll,,ees iI Ihe approprlalte unit ull he iccorded the scr ices of their clc.icd bargaining agenll fair Ihe period pro irded hb las See a.r- Jai P rl/rv ( 1. I. ,3 NI RB 785 19i21: (isrl85.rti (ripair d h Lamar h, I/ 140 NI RB 22h6, 229. 32. F 2d 60o (5th Cir 14). .Lert died 37q l S Sl' Blr Corl (! olirt ,ritui Cmparri 141 NI RBl 141 t ) 1421 (1064). t3 1 50 2d 5 ? (0I (lI t 5) WELLMAN INDUSTRIES, NC 343 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employment, and, if agreement is reached, embody it in a signed contract. (b) Upon request supply the Union with the names of employees affected by the Respondent's unilateral ac- tions found to be unlawful in Wellman III, supply the Union with copies of job descriptions in the possession of the Respondent, supply D-l and D-2 forms filed with the Government covering its insurance and pension pro- grams for the 3 previous years, and supply copies of its EEO forms for the 4 previous years. (c) If requested by the Union to do so, rescind the uni- lateral layoffs, transfers, reduction in pay, changes in the number of employees on lines, changes in shifts, and changes in the overtime system. (d) Offer to any employee unilaterally reduced in clas- sification reinstatement to his former classification. (e) In accordance with the Remedy section above, make whole any employee for any loss of pay or other benefits he may have suffered by reason of any of the Respondent's unilateral changes referred to above. (f) Offer Alton Joye and Bobby Filyaw immediate and full reinstatement to their former jobs or, if their jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for their lost earnings in the manner set forth in the Remedy. (g) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of backpay due under the terms of this recommended Order. (h) Upon request of the Union, immediately grant the Union and its representatives reasonable access, for a 1- year period, to its bulletin boards and all places where notices to employees are customarily posted. (i) Post at its mill in Johnsonville, South Carolina, copies of the attached notice marked "Appendix."27 Copies of said notice, on forms provided by the Regional Director for Region 11, after being duly signed by Re- spondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. 0) Notify the Regional Director for Region 11, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 2t In the eent that this Order is enforced by a Judgment of a United States Court of Appeals. the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National l.abor Relations Board "