Mason & Hughes, Inc.

In the Matter of MASON & HUGHES, INC. and AMALGAMATED CLOTHING WORKERS OF AMERICA, CIO Case No. 10-C-1961.-Decided Octobe'i° 26, 1949 DECISION AND ORDER On May 26, 1949, Trial Examiner Earl S. Bellman issued his Intermediate Report in this proceeding, finding that the Respondent had engaged and was engaging in tertian unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Respondent has excepted to the Trial Examiner's rulings deny- ing its motion to dismiss the complaint, principally upon the grounds that under Section 10 (b) the amended charge upon which the com- plaint was based was not timely filed or timely served, and that the complaint alleged a refusal to bargain at an earlier date than that specified even in the original charge. With respect to the first ground urged, the record reveals that the original charge herein was filed with the Board on May 27, 1946, and that it was served upon the Respondent on July 1, 1947. Thereafter, the amended charge, which was identical in every material respect with the original, was filed on April 26, 1948, and was served upon the Respondent, together with a copy of the complaint, on July 2, 1948. It is true that the amended charge, standing alone, would afford an insufficient basis for the issuance of the complaint under the limiting language contained in the proviso to Section 10 (b) of the amended Act, because the unfair labor practices alleged occurred more than 6 months before that charge was filed and served. How- ever, the Board has held that Section 10 (b) does not bar the issuance of a complaint based upon an amended charge where, as in this proceeding, such amended charge is substantially a restatement of an 86 N. L. R. B., No. 128. 848 MASON & .HUGHES, INC. 849 original charge which was itself timely filed and served., Accord- ingly, we find no merit in Respondent's first ground for excepting to the Trial Examiner's refusal to dismiss the complaint. We also find the second ground lacking in merit. The Board has heretofore ruled, in effect, that Section 10 (b) of the amended Act imposes no limitations upon the allegations contained .in a complaint in any case in which the underlying charge was timely filed and served, as was the case in this proceeding.2 The Board 3 has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed.' The Board has considered the Intermediate Report, the Respondent's exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, insofar as they are consistent with this Decision and Order.' 1. The Trial Examiner found, and we agree, that the Respondent refused to bargain collectively with the Union in violation of Section 8 (5) of the Act and 8 (a) (5) of the amended Act. In rejecting the Union's piecework proposals at the bargaining conference of December 5, 1945, the Respondent took the position that contract negotiations should be frozen until about March 1, 1946, when civilian work was to be resumed and when it could better determine its ability to make changes in its wage scale. The Respondent offered to main- tain the existing wage scale and working conditions until that time. However, when the Union asked the Respondent to execute a contract embodying that agreement and providing for renewal of wage dis- cussions about March 1, 1946, it refused to do so, contending that such a contract would be incomplete. But an agreement between an employer and a labor organization is not incomplete merely because I See Matter of Jaques Power Saw Company, 85 N. L. R. B. 440; Matter of Erving Paper Mills, 82 N. L. R. B. 434; Matter of Dalton Telephone Co., 81 N. L. R. B. 1001. 2 Matter of J. H. hotter-Rea, Manufacturing Co., SO N. L. R. B. 470. 3 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Reynolds and Gray.] 1 At the opening of the hearing the Respondent objected to proceeding on the ground that the Trial Examiner was not qualified to hear the case, because he had not been accorded permanent civil service status by the United States Civil Service Commission under the provisions of Section 1.1 of the Administrative Procedure Act. The Trial Examiner overruled this objection. The Respondent has excepted to the ruling. We find no merit in the Respondent's exception. By permitting the appointment of hearing examiners subject to a later determination of their qualifications, Congress plainly contemplated that such examiners would continue to carry out the duties of their office at least until the Civil Service Commission took final action to disqualify them. See Matter of Russell Manufacturing Co., 82 N. L. R. B. 1081. 5 The Respondent's request for oral argument is hereby denied, as the record and the Respondent's exceptions and brief, in our opinion, adequately present the issues and the positions of the parties. 850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it leaves the question of changes in wages open for future determina- tion.6 Accordingly, the Respondent's refusal to incorporate its agree- ment with the Union into a signed contract constituted a violation of its statutory duty to bargain.7 In addition, on about June 20, 1946, without consulting the Union, the Respondent inaugurated a piecework plan, and granted a week's vacation with pay shortly thereafter. When the Union wrote to the Respondent requesting information about these changes the Respond- ent did not answer. This conduct on the Respondent's part consti- tuted further separate violations of the Act. Its affirmative actions amounted to unilateral changes in working conditions.8 Its refusal to answer the Union's inquiries amounted to a withdrawal of recog- nition, as it carried into effect President Hughes' position that upon learning of the Union's charges he got "sore" and said "goodbye." 9 2. The Trial Examiner found that the Respondent refused to bargain in violation of the Act when, on about August 22, 1944, it posted its shop rules without consulting the Union. We cannot agree with this finding. There is no showing in the record that the shop rules were different in any particular from those which had been previously in effect 10 In these circumstances we are not per- suaded that the mere posting of the existing rules constituted a refusal on the part of the Respondent to comply with its statutory duty to bargain. 3. The Trial-Examiner found that the Respondent refused to bar- gain with the Union at the bargaining conference on April 24, 1945, in two respects : Because it refused to accept two contract provisions which it had not objected to at an earlier date, and because, despite the Union's request, it failed to provide the Union with either a counterproposal or a specific indication of its position on numerous other clauses of the Union's proposal. We do not agree with the Trial Examiner's conclusion. The Union's letter to the Respondent's attorney dated April 20, 1945, forwarding its proposed contract, requested that the Respondent submit counterproposals before the conference scheduled for Tuesday, April 24, 1945. The record does not indicate when the Union's letter reached the Respondent's attorney. We note that, in any event, a week end intervened between the writing of the letter and the scheduled bargaining conference. 8 See Matter of Salant & Salant, Inc., 66 N. L. R. B. 24. See Matter of Cheney California Lumber Company, 62 N. L. R. B. 1208 ; H. J. Heinz Company v. N. L. R. B., 311 U. S. 514. 8 N. L. R. B. v. Andrew Jergens Co., 175 F. (2d) 130 (C. A. 9), enfg. 76 N. L. R. B. 363. 0 The filing of the charges by the Union after the bargaining conference of May 20, 1946, did not suspend the operation of the Act nor relieve the Respondent of its continuing duty to bargain. Matter of ICeleo Corporation, 79 N. L. R. B. 759. . 10 Cf. Matter of Tower Hosiery Mills, 81 N . L. R. B. 658. MASON & HUGHES, INC. 851 Accordingly, Ave believe .it would be unreasonable to hold that the Respondent's failure to produce counterproposals before or during the bargaining conference constitutes persuasive evidence of a refusal to bargain,at that time. As to the other ground relied upon by the Trial Examiner, we do not believe, in the circumstances of this case, that the Respondent's rejection of two proposed contract provisions. to which it had not previously objected, standing alone, affords a sufficient basis for find- ing a refusal to bargain. Those provisions were incorporated in an earlier proposed contract which the Respondent agreed to sign if the Union would recede from its position on two other proposed pro- visions. The Union did not agree to do so. In these circumstances we do not believe that the Respondent must be regarded as being for- ever after bound to accept each of the provisions in the earlier pro- posed contract to which it did not previously raise a specific objection. 4. The Respondent in its brief argues that the Trial Examiner erred in finding appropriate for the purposes of collective bargaining a unit different from that which the Board had found appropriate in the previous representation proceeding. We do not agree. The Board's prior unit determination was made before the amendment of the Act, and does not conform, in certain minor respects, to the stand- ards prescribed by the amendments. Accordingly, in order to remedy the violation found, it was proper and necessary for the Trial Exam- iner to redefine the unit, on basis of the record, to conform to the amended Act." ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Mason & Hughes, Inc., Clarksville, Tennessee, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with Amalgamated Clothing Workers of America, affiliated with the Congress of Industrial Organ- izations, as the exclusive representative of all production and mainte- nance employees of the Respondent at its Clarksville, Tennessee, plant, excluding executives, clerical employees, guards, professional em- ployees, and supervisors, as defined in the amended Act; (b) In any other manner interfering with the efforts of Amalga- mated Clothing Workers of America, affiliated with the Congress of Industrial Organizations, to negotiate for or to represent the em- " See Matter of Marshall and Bruce Company, 75 N. L. R. B. 90. 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees in the aforesaid appropriate unit, as their exclusive bargaining agent. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with Amalgamated Cloth- ing Workers of America, affiliated with the Congress of Industrial Organizations, as the exclusive representative of all its employees in the appropriate unit defined above, with respect to grievances, labor disputes, wages, rates of pay, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, embody the understanding in a signed agreement; (b) Post at its Clarksville, Tennessee, plant, copies of the notice attached hereto and marked "Appendix A." 12 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and maintained by it for a period of at least sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Re- spondent to insure that such notices are not altered, defaced, or covered by any other material ; (c) Notify the Regional Director for the Tenth Region in writing, within ten (10) days from the date of this Order, what steps the Re- spondent has taken to comply herewith. APPENDIX A NOTICE To ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT in any manner interfere with the efforts of AMALGAMATED CLOTHING WORKERS OF AMERICA, affiliated with the CONGRESS OF INDUSTRIAL ORGANIZATIONS, to negotiate for or represent the employees in the bargaining unit described below. WE WILL BARGAIN collectively, upon request, with the above- named union as the exclusive representative of all employees in the bargaining unit described below with respect to grievances, labor disputes, wages, rates of pay, hours of employment, and other terms and conditions of employment, and if an understand- ^ In the event that this Order is enforced by decree of a United States Court of Appeals, there shall be inserted before the words : "A DECISION AND ORDER," the words: "A DECREE OF TIIE UNITED STATES COURT OF APPEALS ENFORCING." MASON & HUGHES, INC. 853 ing is reached, embody the understanding in a signed agreement. The bargaining unit is : All production and maintenance employees at the Clarks- ville plant of the undersigned employer, excluding executives, clerical employees, guards, professional employees , and super- visors, as defined in the National Labor Relations Act. MASON & HUGHES, INC., Employer. Dated ------------------ By -------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER Mr. Clarence D. Musser, for the General Counsel. Martin d- Coelbran, by Dlr. Joseph Dlartin, of Nashville, Tenn., for the Re- spondent. Dlr. Harry Haberthear, of Nashville, Tenn., for the Union. STATEMENT OF THE CASE Upon an amended charge duly filed on April 26, 1948,' by Amalgamated Clothing Workers of America, C. I. 0., herein called the Union, the General Counsel of the National Labor Relations Board,' by the Regional Director for the Tenth Region (Atlanta, Georgia), issued a complaint dated July 2, 1948, against Mason & Hughes, Inc., of Clarksville, Tennessee, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act, and Section 8 (a) (1) and (5) and Section 2 (6) and (7) of the Labor Management Relations Act, 61 Stat. 136, herein called the Amended Act. Copies of the complaint, ac- companied by notice of hearing and the amended charge, were duly served upon the Respondent and the Union. With respect to the unfair labor practices, the complaint alleged in substance that the Respondent: (1) on or about February 23, 1944, refused and at all times thereafter continued to refuse to bargain with the Union' which, in a Board ordered election on February 23, 1944, had been selected the exclusive representa- tive of the Respondent's employees in an appropriate unit; and (2) by such conduct, interferred with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act and of the amended Act. 'The original charge was filed May 27, 1946; a copy thereof was served upon the Respondent on July 1, 1947. ' The General Counsel and his representative at the bearing are herein called the Gneral Counsel ; the National Labor Relations Board is called the Board. 3 The date of the alleged refusal to bargain in both the original and the amended charge is May 22, 1946. 867351-50-vol. 86-55 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD By order dated July 12, 1948, the Regional Director, granting a request by the Respondent, extended the time for filing an answer to September 10, 1948. Upon that date, the Respondent filed its answer and also a motion. In general, the answer admitted most of the allegations as to its business but denied that the Respondent engaged in any unfair labor practices. Among other things, the answer alleged, in essence, that the bargaining unit set out in the complaint was not the same as that for which the Board had certified the Union on March 2, 1944; that the Respondent had bargained with the Union in numerous confer- ences from March 1944 until an impasse had been reached in May 1946, after which the Union had not requested further bargaining conferences; that the Board's certification was not a "perpetual" one ; and that the Union, because. of the Respondent's high labor turn-over, could not have represented a majority of the Respondent's employees for the last 2 or 3 years. In its motion filed with its answer on September 10, the Respondent sought dis- missal of the complaint in its entirety on the ground that the Board "does not have jurisdiction" to consider such complaint because it is not based upon a charge filed and served in conformity with Section 10 (b) of the Amended Act, and on the further ground that the averments of the complaint are not supported by allegations of the charge upon which it is based. In addition, the Respondent moved to strike and to dismiss each of the paragraphs of the complaint numbered V through XITI.' Pursuant to notice, a hearing was held in Clarksville, Tennessee, from Septem- ber 20 to 24, 1948, before Earl S. Bellman, the undersigned Trial Examiner duly designated by the Acting Chief Trial Examiner. The General Counsel and the Respondent were represented by counsel and the Union by an official. All participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses and to introduce evidence bearing on the issues was afforded all parties. At the opening of the hearing, counsel for the Respondent objected to pro- ceeding with the hearing on the ground that the Civil Service Commission had net conferred upon the undersigned the permanent status required for Hearing Examiners by Section 11 of the Administrative Procedure Act. In overruling this objection, the undersigned pointed out that his status under "a conditional appointment,"' pending absolute appointment under Section 11 of the Adminis- trative Procedure Act, was the same type of interim status as that afforded throughout the Federal Government to "all Federal Trial Examiners who are permanent Civil Service employees."' Also at the opening of the hearing, oral argument was heard on the Respondent's motion to dismiss and strike. The undersigned thereafter denied said motion in toto, stating that Section 10 (b) of the Amended Act imposes no limitation upon the issuance of a complaint where the underlying charges were filed and served prior to August 22, 1947, the effective date of the amended Act; that the original charge was filed and served prior to the effective date of the Amended Act; that the amended charge alleged the same conduct on the part of the 4 The grounds specified for paragraphs V, VI, and VII were that the unit set out or referred therein was not the unit found by the Board; as to paragraphs VIII through XIII, the grounds specified were that the averments therein were not in conformity with or sup- ported by the allegations of the charge. 5 An error at page 11, lines 18 and 19, of the record is hereby corrected so that the phrase, "an additional appointment," reads "a conditional appointment." 6 Cf. Matter of R. L. Polk & Co., 78 N. L. R. B. 82 and Matter of Russell Manufacturing Co., et at., 82 N. L. R. B. 1081. MASON & HUGHES, INC. 855 Respondent as the original charge ; that the complaint had properly issued upon that amended charge ; that evidence covering the period from the time of the Board's certification would be received without then deciding whether any limitation would be placed upon its use;' and that whether or not any material variance actually existed between the appropriate unit alleged in the complaint and that found in the Board's decision was a matter for the evidence to reveal. Under the above ruling, and with appropriate standing objections granted the Respondent to the receipt of certain lines of evidence, the allegations of the complaint were fully litigated. At the conclusion of the General Counsel's case, the undersigned denied with- out prejudice to its renewal a motion by the Respondent to dismiss the complaint, At the conclusion of the evidence, the undersigned granted without objection a motion by the General Counsel to conform the pleadings to the proof as to formal matters. Ruling was reserved upon a renewed motion by the Respondent to dismiss the complaint. For reasons which appear below, said motion to dismiss is hereby denied. At the close of the hearing, the parties were afforded opportunity to argue orally before the undersigned and to file briefs and/or proposed findings of fact and conclusions of law. The General Counsel argued orally on the record. After the hearing, pursuant to extension by the Acting Chief Trial Examiner of time for filing to November 8, 1948, the Respondent filed a brief. In its brief, the Respondent reiterates positions taken at the hearing to the. effect that the complaint is not based upon a charge validly filed under Section 10 (b) of the Amended Act and that, in any event, evidence should not have been received as to matters occurring prior to May 22, 1946, the earliest date appear- ing in either charge. The undersigned has reconsidered the rulings made at the hearing. For reasons which follow, he hereby reaffirms said rulings and further rules that evidence received as to events prioi to May 22, 1946, may be used for all purposes. The Board has repeatedly held that Section 10 (b) of the Amended Act has no retroactive application and imposes no limitation upon the issuance of complaints in cases in which the charges were filed and served within 6 months after August 22, 1947, the effective date of the Amended Act -8 The original charge in the instant matter was filed May 27, 1946, and was served on the Respondent on July 1, 1947. It is thus clear that that original charge was filed and served before the effective date of Section 10 (b),° and, that, under the Board's interpretation, said section imposes no limitation upon the issuance of any complaint based upon any unfair labor practice set out in that original charge. We now examine the question of the variance between the original charge and the amended charge.18 Aside from one comma, the typed-in material in the ' The General Counsel took the position that evidence from 1944 on could be used both as background and to establish refusal to bargain from 1944. 8 See Matter of S. W. Evans & Son, 81 N. L. R. B. 161 ; Matter of Itasca Cotton Mann- facturing Company, 79 N. L. R. B. 1442; Matter of Hillsboro Cotton Mills, 80 N. L. R. B. 1107; Matter of Electric .onto-Lite Company, 80 N. L. R. B. 1601. 9 So far as here relevant, Section 10 ( h) provides : . .. no complaint shall issue based upon any unfair labor practice occurring more than 6 months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made. 10 The amended charge was the only charge attached to the complaint. It was filed on April 26 , 1948, and was first served upon the Respondent along with the complaint on July 2, 1948. 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD amended charge is identical with that in the original charge. This typed ma- terial, following the printed allegation as to unfair labor practices, reads as follows : by its officers, agents and employees, it has failed and refused to bargain in good faith with the Amalgamated Clothing Workers of America, the certified bargaining agent of the employees in the appropriate unit at its plant in Clarksville, Tennessee ; and since May 22, 1946, has failed and re- fused to bargain with said Amalgamated Clothing Workers of America for such employees, and at all times thereafter has continuously failed and re- fused to bargain with said Amalgamated Clothing Workers of America for such employees. By these and other acts, said company by its officers, agents and employees has interfered with, restrained, and coerced said employees in their rights under Section 7 of said act. It should be noted, however, that the original charge does not contain any numeral in the blank provided in the printed allegation, thus stating a violation of "Section 8 subsections (1) and of said Act." In the amended charge, on the other hand, the figure five appears in the blank in the printed allegation, thus stating violations of "Section 8 (a) subsections (1) and (5) of said Act." Although no "(5)" was inserted in the blank provided in the printed form to specify that subsection of Section 8 pertaining to refusal to bargain, it is clear from the wording of the original charge that the conduct of the Respond- ent complained of therein was its alleged refusal to bargain. Further, the ex- change of correspondence between the Regional Director and the Respondent during May of 1946, before the charge had been served, shows that the Respond- ent was immediately made aware that the charge alleged refusal to bargain." In the undersigned's opinion, the omission of the figure five from the original charge constituted, at most, a failure to specify a legal conclusion as to one of the subsections of Section 8 of the Act which that alleged conduct violated. This did not, however, detract from the clarity of the allegation as to the kind of conduct which was alleged to be in violation of the Act. Thus, the "amend- ment" made by the amended charge, which was attached to and served with the complaint, merely rectified a technical omission which did not change or add to the kind of conduct alleged. It is therefore clear that the underlying charges as to the Respondent's alleged unfair labor practices were stated in the original charge which was timely filed and served, and that the amended charge con- tained no material variance therefrom. Under such circumstances, it is not material that the amended charge attached to the complaint was filed and served upon the Respondent more than 6 months after the effective date of the Amended Act.'2 11 The Regional Director's letter of May 27, 1946, informing the Respondent that a charge had been filed, contained this paragraph : The particular acts complained of allege that you have refused to bargain in good faith with the Amalgamated Clothing Workers of America, the certified, bargaining unit of the employees, and that you have interfered with, restrained and coerced employees in the exercise of their rights under Section 7 of the Act. The Respondent' s reply of May 29 contained the following : The Company . . . particularly denies that it has refused to bargain in good faith with the Amalgamated Clothing Workers of America, and specifically denies that it has interfered with, restrained and coerced its employees in the exercise of their rights under Section 7 of the Act. 12 Matter of Erving Paper Mills, 82 N. L. R. B. 434 ; Matter of Vanette Hosiery Mills, 80 N. L. R. B. 1116. MASON & HUGHES, INC. 857 One further matter remains for consideration, the fact that the complaint alleges refusal to bargain as of February 23, 1944, and thereafter, while the date appearing both in the charge and in the amended charge is May 22, 1946. The underlying charges in this case having been filed and served prior to the effective date of Section 10 (b) of the Amended Act, that section does not limit the issuance of the complaint herein. Hence, the undersigned is of the opinion that the date of the alleged refusal to bargain set out in the charge does not pre- clude alleging an earlier date in the complaint in connection with that line of conduct. The function of a charge is to serve as a request that appropriate action be taken; a complaint based on a charge is not defective because the com- plaint covers related maters not spelled out in the charge, but revealed by the investigation made prior to the issuance of the complaint." Since the com- plaint alleging the refusal as of February 1944 was issued 21/ months prior to the hearing, no surprise was involved. The undersigned is satisfied that the evidence received at the hearing as to events prior to May 22, 1946, was properly received and may be used both as background and to base findings of refusal to bargain.19 Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, Mason & ITughes, Inc., maintains its principal office in Clarks- ville, Tennessee, and operates plants at Clarksville and Erin, Tennessee.'' At its Clarksville plant, the Respondent has engaged from time to time since Jan- uary 1, 1944, in the manufacture of cotton pants, woolen pants, dungarees, cover- alls, dresses (smocks), coats, and rayon slacks.1° During the year 1947, the Respondent purchased for processing at its Clarksville plant raw materials valued in excess of $100,000, approximately 90 percent of which was purchased outside the State of Tennessee and was shipped to Clarksville from points out- side Tennessee. During the same year, the Respondent manufactured and sold finished products valued in excess of $300,000, approximately 70 percent of which was shipped in interstate commerce to points outside Tennessee. The foregoing admitted facts as to the Respondent's commerce established the jurisdiction of the Board, which is not contested. H. THE LABOR -ORGANIZATION INVOLVED Amalgamated Clothing Workers of America, affiliated with the Congress of Industrial Organizations, is a labor organization which admits to membership employees of the Respondent. 13 See Matter of S. TV. Evans 1t Son, 81 N. L. R. B. 161 ; Matter of Morristown Knitting Mills, 81 N. L. R. B. 731; and cases cited therein. 14 In Matter of Itasca Cotton Manufacturing Company, 79 N. L. R. B. 1442, where the applicability of Section 10 (b) was in issue, the complaint alleged and the board found refusal to bargain as of July 17, 1945, whereas the charges alleged such refusal as of December 17, 1945. 15 The Erin plant is only indirectly involved in this case. "The evidence shows that until about the middle of 1946, the Clarksville plant was producing pants for the United States Army. 858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. The sequence of events" 1. Events surrounding the Union's certification On February 23, 1944, in accordance with a Decision and Direction of Election issued by the Board in Case No. 10-R-1093 on February 5, 1944,'8 an election was conducted among all production and maintenance employees of the Respondent. at its Clarksville, Tennessee, plant, excluding executives, clerical, and all super- visory employees with authority to hire, promote, discharge, discipline, or other- wise effect changes in the status of employees or effectively recommend such action, which employees the Board had found constituted a unit appropriate for the purposes of collective bargaining. The tally of the vote in that election showed that of approximately 112 eligible voters in the unit, 108 cast valid ballots, of which 61 were for the Union and 47 against it. . Following the election, the Union submitted to the Respondent, along with a covering letter dated February 23 signed by Carl F. Albrecht, Southern Director of the Union, a proposed general agreement and a supplemental agreement cover- ing wages. The letter, stating that the election results proved the Union's ma- jority, asked for a bargaining conference on Monday, February 28, in Clarksville, or at a more convenient place and time.10 On February 24, B. A. Hughes, Jr., president and general manager of the Respondent, wrote Albrecht that he would be unable to meet as requested ; that he would try to meet later in the week in the Nashville office of Gordon McKelvey, the Respondent's attorney ; and that either McKelvey or Hughes would get in touch with Albrecht. On March 2, on the basis of the election of February 23, the Board issued its certification of the Union as the bargaining agent for the employees in the above unit. On March 7, no date having been set by the Respondent for the requested bar- gaining conference," Albrecht, in a telegram to the Director of the Conciliation Service which also pertained to another case not related to the instant mat- ter, requested that Commissioner Lynch "be assigned" to the Mason & Hughes "situation." On the morning of March 9, Albrecht telephoned Hughes and asked him about the conference. Hughes said that he would call McKelvey. On March 10, Albrecht telegraphed Hughes at Clarksville that the Union had not been "ad- vised" of a "conference date" and requested a conference on either March 13 or 14. " Unless otherwise indicated , findings are made upon testimony and documentary evidence which is essentially uncontradicted . While major conflicts and ambiguities are discussed, minor variations , particularly where documentary evidence is accepted as more trustworthy than memory, generally are not. It should be noted that the protracted period of the negotiations , the ramifications of the issues , and the voluminous nature of the exhibits, required considerable pruning . This has been done upon the undersigned ' s evaluation of all of the evidence , In the light of what he believes to be the essential issues in the case. It should also be noted that, in the interest of avoiding repetition in the conclusions which appear in a subsequent section, the undersigned points out on several occasions in this sequence of events that actions discussed cannot serve , under all the circumtances of this case, to base findings of refusal to bargain. 18 Matter of Mason f Hughes, Inc., 54 N . L. R. B. 1115, in which the hearing had been held January 5, 1944. 19 The offices of the Union and of the attorneys for the Respondent are all located in Nashville, some 45 miles from Clarksville. 20 The Respondent apparently had not communicated with the Union since the letter of February 24 ; in any event , the Respondent had not set a date for a meeting. It also appears that the Union , after it had been certified , had not again contacted the Respondent. MASON & HUGHES, INC. 859 On the afternoon of March 10, Hughes wired Albrecht that he would meet him at 10 a. m., March 14, in McKelvey's office. The same day, Albrecht wrote Hughes that the date was agreeable, and thanked him for his "prompt cooperation." Contrary to the General Counsel's contention, the undersigned is not satisfied that the delay in setting the first conference was sufficient to show evasion or bad faith on the part of the Respondent. 2. The initial conferences of March 14 arid.16, 1944 At the initial conference, held as agreed on March 14 in McKelvey's office, the Respondent was represented by McKelvey and Hughes. The Union was represented by Albrecht, his assistant, Harold S. Marthenke,21 Bessie Moore, a representative of the Union, and two employee members of the negotiating committee. The basis of discussion at this first all-day conference was the Union's proposal submitted on February 23. The morning session opened with the Union asking that its grievance committee be recognized during negotiations, pending the signing of an agreement. The Respondent agreed to discuss. with the griev- ance committee any grievances which might arise. The Union asked if the Respondent would agree finally to various individual clauses as considered, without holding such agreed clauses tentative and contingent upon reaching a satisfactory over-all contract. The Respondent insisted that agreement on various clauses would have to be considered contingent upon reaching a satis- factory entire agreement. It was then agreed to discuss two major issues, wages and the closed shop. The Union' s proposed contract required that all employees be members of the Union in good standing and that all new or addi- tional employees be secured through the Union. After an extended discussion of the closed-shop question, the Respondent agreed that it would take that matter under advisement. The afternoon session on March 14 was devoted largely to a discussion of wages. The Union's position was that the minimum in wages which it would accept would have to accord with the various provisions of the Cotton Garment Directive Order of the National War Labor Board. This N. W: L. B. directive of December 8, 1943, was issued in a case which did not involve the Respondent but involved the Union, 11 clothing manufacturing associations, and 165 inde- pendent companies. That directive provided, among other things, for a mini- mum wage scale of 40 cents per hour for up to 3 months' experience, 45 cents per hour during the second 3 months, and 50 cents per hour after 6 months ; for a general wage increase to be determined under a formula based on prior average earnings ; 22 and that wage increases be made retroactive to December 8, 1943. The lowest of the several rates set out in the Union contract was $21 for a 40-hour week, which is at the rate of 521/2 cents per hour R3 Approximately 90 percent 21 The evidence shows that :1larthenke, who was then the National Office Representative of the Union, acted as Albrecht's administrative assistant until Albrecht was killed in an automobile accident on February 4, 1946. Marthenke, who had been in charge of the Union's records pertaining to this case, was the General Counsel's chief witness. Since September 1947, Marthenke has been the acting executive secretary-treasurer of the Tennessee State Industrial Union Council, C. I. 0., with which the locals of the Union situated in Tennessee are affiliated. ' A 4-week period during August 1943 was to be used as the basis for determining prior average earnings, unless such period was not typical. 23 Contrary to the prevalent practice in the industry, the Respondent, whose equipment and lay-out at the Clarksville plant was far from modern, paid its employees on a time rate rather than on a piece-rate basis. The Union's proposed supplemental wage agree- ment contained a provision for the establishment of piece-work rates to which the Respond- ent did not agree. 860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Respondent 's employees worked in the sewing department2a For the most part, their rate was then 45 cents an hour. It appears that the application of the formula in the Cotton Garment Directive to the Respondent 's sewing machine operators would have called for an increase of 10 cents per hour, finless a 5-cent allowance were to be made for a general wage increase of 5 cents per hour which the Respondent put into effect in November 1943.25 In connection with the wage problem confronting the Union and the Respondent , it should be noted that since it had started working exclusively on Government war contracts in 1942, the Clarksville plant operated 497/ hours per week, 91/, hours of which was overtime, paid for at the time and one-half rate. The Respondent 's work week, which continued in effect from 1942 until the latter part of June 1946 , was 9 hours a day, Monday through Friday , and 47/, hours on Saturday . An hour a day and the 41/2 hours on Saturday were paid for as ,overtime 29 While it is not clear from the somewhat sketchy evidence concerning the all- day conference on March 14 that all of the foregoing facts concerning the Cotton Garment Directive and the Respondent 's wage rates and overtime were then discussed, the undersigned is satisfied from the record as a whole that those facts were known to the Union and to the Respondent and entered into consideration during that conference and conferences which followed. In any event , the minutes kept by Marthenke of the March 14 meeting state that the Respondent took the following position on wages : The Company stated that its financial position, its margin of profit on goods presently being produced, the fact that the Quartermaster Department of the United States Army would not grant ceiling price relief , even though the Office of Price Administration would, make it impossible for then to pay even the wages granted in the Directive Order. Everything considered , the undersigned believes that the gist of the Respond- ent's position at this first meeting as to wages was that its financial condition made it impossible for it to meet the wage provisions of the Cotton Garment "Aside from 117 employees listed as sewing department, apparently machine operators, there were only 13 other employees distributed among 10 other job classifications. There were 2 employees classified as bundle boys, 2 as repair girls, and 2 as porters. There was 1 employee in each of the remaining 7 classifications, marker, cutter, spreader, helper, ticket girl, packer, and assistant machinist. These figures and classifications are from the report of the W. L. B. Panel, discussed below. ^ In November 1943, a date later than the August 1943 basing period used in the direc- tive, the Respondent, pursuant to permission granted by the Wage Stabilization Division of the W. L. B. upon a request which had been pending for about a year, advanced most of its rates from 40 to 45 cents per hour. Whether or not that 5-cent increase should apply to the above 10-cent general increase, under the formula of the directive, eventually became an issue between the Respondent and the Union. 26 It should be noted that some time after the issuance of the Cotton Garment Directive in December 1943, but prior to the election conducted by the Board in February 1944, Hughes had called the employees at the plant into his office in groups and asked them if they would prefer to work 40 hours a week at 50 cents an hour (the rate which Hughes believed applied under the directive) or stay at the 45-cent rate with 9?!, hours overtime. Hughes indicated that he could not afford both to increase the rate and to continue the overtime. Only three employees, according to Hughes' credited testimony, wanted to go on the 40-hour week at the higher base rate and give up the overtime. The 45-cent rate and the 9% hours overtime was thereafter continued. From. the undersigned's calculations, it appears that the take home pay at the 45-cent rate with 9'/, hours overtime was approxi- mately $24.40, while the 50-cent rate for 40 hours would have been $20 a week. Every- thing considered, the undersigned does not believe that the evidence warrants drawing inferences adverse to the Respondent because of Hughes' inquiry of the employees as to this matter. MASON & HUGHES, INC. 861 Directive, including retroactive pay,27 and that the Respondent could not afford to continue to work 97/2 hours overtime and also to grant a wage increase During the afternoon session while wages were being discussed, Commissioner Lynch entered the conference. The Respondent insisted that his presence at this first conference was not necessary because negotiations had not reached a deadlock. The Union requested that Lynch remain, as it had asked for his assignment to the case. Lynch did remain about an hour during which he acted as an observer. The discussion on wages did not result in any agreement, and procedures for. certifying the case to the W. L. B. were considered. A further meeting._was arranged for March 16 at McKelvey's.office. The Respond- ent agreed that in the meantime it would give further consideration to the Union's position on three matters, (1) the closed shop, (2) wages, and (3) making other articles agreed upon final and not contingent upon reaching an entire contract. On March 16, Hughes and McKelvey met with Marthenke, Moore, and two employee committee members ; neither Albrecht nor Lynch attended this meet- ing. At the outset the Union asked the Respondent its position on the closed- shop proposal. McKelvey stated that upon the basis of telephone conversations with several employers operating under closed-shop agreements, Hughes had decided that he ."could not possibly agree to any form of, closed shop." 29 When asked if it had changed its position on wages, the Respondent stated that its position continued to be that it could not pay increased wages on the basis of the Cotton Garment Directive. The Union then stated that "it could not recede from its previous position" on either the closed shop or wages and that it "felt that the Company was entirely able to pay increases in accordance with the Directive due to the fact that the Union would cooperate with the Company in increasing production and that the Company could get price relief if it was ordered to pay wages in accordance with the Directive." As to the third item taken under advisement, the Respondent stated that it was "perfectly willing" to go over the undiscussed portions of the proposed agreement but that "any agreement reached on such clauses would be contingent upon the Union and the Company reaching an agreement" on closed-shop and wage issues. The Union stated that "it would be a waste of time to enter into a discussion of such clauses on that basis." The Union renewed its request for agreement on a clause by clause basis, such clauses to be reduced to writing and signed and considered final, rather than contingent upon agreement on closed shop and wage issues. The Respondent would not agree to that procedure. The undersigned does not believe that by its refusal, the Respondent can be said to have "conditioned agreement on individual items" to prevent reaching an agreement, as contended by the General Counsel. During the latter part of this conference, which lasted about an hour. and a quarter, there was consideration of procedure in submitting the case for certifi- cation to the W. L. B. It was tentatively agreed that further conferences would be unnecessary, if Commissioner Lynch were satisfied with statements by tele- 27 The Union's proposed contract, which left dates blank, specified that rates should be retroactive. Hughes testified that at the first meeting "the main trouble was retroactive wages and a closed shop." 21 Marthenke admitted on cross-examination that the Respondent might have taken such a position on overtime on March 14. 29 All quotations appearing in the discussion of this conference are taken from the Union's minutes; the undersigned believes, from all the evidence, that the quotations state the essence of the positions taken. 862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD phone as to the status of the case. Otherwise the parties agreed to meet again in McKelvey's office. . 3. Interim developments About March 18, the Union submitted its position on the negotiations to Commissioner Lynch who said that he would find out the Respondent's position and determine if the case should be certified by the Conciliation Service to the War Labor Board. On March 30, Howard T. Colvin, Regional Director of the Conciliation Service with headquarters in Atlanta, Georgia, wrote the Union that negotiations should be resumed because if the case were to be certified on what appeared insufficient negotiations, the W. L. B. would merely return it to the Conciliation Service for further negotiations 30 On April 5, D. R. Hunt, Commissioner of Conciliation, wired Marthenke, from Knoxville, Tennessee, that he was coming to Nashville and had arranged a conference with McKelvey for April 7. During his visit to Nashville, Commis- sioner Hunt met separately. with representatives of the Respondent and the Union but there were no joint meetings. On April 7, after having discussed the Respondent's position with McKelvey, Hunt, according to Marthenke, reported to Marthenke that he had told McKelvey that "the only way to reduce the number of issues in the case was to get a conclusive agreement in writing, signed by the Company and the Union, on as many of the issues as possible" ; that McKelvey had said that he would consult with Hughes; and that McKelvey thereafter advised him [Hunt] that "if the Union would forget about retro- active pay, the Company would be willing to sit down and try to agree to as many of the agreement provisions as they could and would reduce such agreed provisions to writing and sign them as conclusive and binding." 31 Marthenke told Hunt that he did not think that the Union would be willing to waive retro- active pay but that the decision would have to be made after consultation with Albrecht who was returning to Nashville the following day. On April 8, Albrecht advised Hunt that the Union would be willing to enter into further negotiations and would agree that rates of pay eventually established would be retroactive to April 10,32 if the Respondent would agree that acceptable contract provisions would be final and not contingent upon reaching a complete agreement. The Union received no further word from Commissioner Hunt until April 15, when Hunt telephoned Marthenke from Chattanooga, Tennessee, and read the following telegram dated April 11, which Hunt reported that he had received from McKelvey : Regarding Mason & Hughes. Mr. Hughes in my office. this afternoon for conference on question you raised. Solely with the view of desiring cooperation with the Conciliation Service and War Labor Board, Company's position if the Union will in writing waive all demands for retroactive wage payments with no date limit, the Company representatives will resume 30 The transcript at page 73 is hereby corrected to show that lines 11 to 15 are testimony of the witness , Marthenke , given after the Trial Examiner had asked the question , "Who?" 31 The above quotations , which the undersigned believes state approximately what Hunt reported, are from Marthenke' s uncontradicted testimony , the only evidence on the confer- ences which Hunt held . It is plain from the record as a whole that Hunt was seeking to find some way of reducing the number of issues to be submitted to the W. L. B . in the event the parties were unable to reach a full agreement. 32 It appears from Marthenke 's testimony that the Union previously had demanded that pay be retroactive to February 23, the date of the election , although it is not clear just when that date was first mentioned. MASON & HUGHES, INC. 863 bargaining with Union representatives and make sincere efforts to agree to some, if not all, provisions in proposed contract with the usual understand- ing that final and binding effect of provisions will be subject to agreement by both parties to complete contract. After Hunt had read McKelvey's telegram over the telephone, Marthenke informed him that the Union's position remained the same as that stated by Albrecht on April 8. Hunt then advised Marthenke that he was forwarding his report to the Conciliation Service in Washington. Thereafter, by letter dated April 28, the Conciliation Service in Washington wrote the Union and the Respondent that the controversy had been certified to the N. W. L. B. on April 27, under Case No. 111-7728-D. On May 3, the Disputes Division of the N. W. L. B. wrote that the case was being referred to the Regional War Labor Board in Atlanta. On May 20, the Disputes Division of the Fourth Regional W. L. B. wired Albrecht that the R. W. L. B. desired to arrange a "conference" between the Union and the Respondent with a W. L. B. representative in Nashville on May 24. On May 22, Albrecht wired that the conference was agreeable to the Union if it was agreeable to the Respondent. On May 23, for reasons which are not clear from the record, the Chairman of the Fourth Regional W. L. B. wired the Union to appear before the R. W. L. B. on May 26 in Atlanta "to show cause why you should not meet and bargain collectively on the terms and conditions of employ- ment at the company's plant." On May 23, the Disputes Division also wired Albrecht that the Nashville meeting of May 24 would "not be held because of the show cause hearing." Albrecht, also on May 23, wired the R. W. L. B.'s chair- man that the Union would be glad to comply with the show cause order but that a W. L. B. conference which had been arranged with another company conflicted as to time ; he suggested that the other conference be postponed. On May 24, the Chairman wired Albrecht that the show cause hearing was postponed to May 30 ; that no further postponements would be granted ; and that Hughes and Albrecht were required to be present. On May 25, the Disputes Division wired Albrecht that at the request of the Respondent's attorney, the show cause hearing had been postponed indefinitely to allow the parties to bar- gain on May 31 at conferences to be held in the Federal Building in Nashville with A. R. Marshall of the R. W. L. B. staff attending the negotiations as an. observer. The above summarized telegrams were introduced in evidence from the Union's files. Marthenke testified that as far as he knew these telegrams constituted all of the communications pertaining to this phase of the case which the Union had sent or received. The Respondent introduced no additional evi- dence on this aspect of the matter, although presumably it also exchanged a series of telegrams with the R. W. L. B. at that time. In the undersigned's opinion, the evidence on this phase of the case, when considered in its total context, does not establish, as contended by the General Counsel, that the Re- spondent's request for postponement of the show cause hearing was a "further indicia of bad faith," particularly since it is clear from Marthenke's testimony that the Union had been eager to get the case certified to the W. L. B. and since it was the R. W. L. B. which had undertaken to try to bring the Union and the Respondent together in further bargaining conferences. For similar reasons, the undersigned is not persuaded that the positions which Commissioner Hunt reported that the Respondent took on April 7 and 11 establish that the Respond- ent was placing initial conditions as obstacles to good faith bargaining. 864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The conferences of May 31 and June 1 and 2, 1944 Pursuant to arrangements made by the R. W. L. B., a series of conferences took place in the Federal Building in Nashville, opening with a half-day session on the morning of May 31, and continuing through all-day sessions on June 1 and 2. All of these conferences were attended by Assistant Director Marshall of the R. W. L. B.'s Disputes Division and by Commissioner of Conciliation Hunt. The Union throughout. was represented,by Marthenke, Moore,-and two employee committee members. The Respondent was represented during these meetings by Hughes, McKelvey, and Joseph Martin, the Respondent's attorney in the instant matter, who first entered the negotiations between the Respondent and the Union at these meetings. The May 31 conference was opened with a statement by Marshall that the position of the R. W. L. B. was that further conferences were necessary because collective bargaining had not been exhausted. Discussion then ensued which apparently consisted largely of a recapitulation of the positions of the parties during previous negotiations. This meeting adjourned to the following morning with the understanding that the Respondent would at that time submit an agreement containing its counterproposals. At the opening of the conference on June 1, the Respondent presented its pro- posed agreement, a 5-page typed document including a preamble and 13 articles which contained provisions covering such matters as recognition, hours, wages, holidays, waiting time, arbitration, investigation of complaints, and effective date and termination. It concluded with appropriate blanks for dating and signing the contract. After copies thereof had been read by all participating, including Marshall and Hunt, the Respondent's entire proposed agreement was gone over in detail, article by article, and compared and discussed along with the provisions in the Union's proposed agreement, a document containing 21 articles and cover- ing, with its supplemental wage agreement, some 15 pages. Thus, the meetings on June 1 and June 2 were devoted to the process of determining, by systematically considering all of the provisions proposed by both parties, the extent to which agreement could be reached, both as to content and as to language, and which provisions were outside of the area of possible agreement. There was no under- standing that clauses agreed upon were to be signed apart from a complete contract. The 2 days of negotiations resulted in full agreement as to both content and language only with respect to the preamble and a few clauses of the agreement. Both sections of Article 1, RECOGNITION, were readily accepted and provided for recognition of the Union as the exclusive bargaining agent of all of the Clarksville production and maintenance employees.' The other clauses- com- pletely agreed upon provided that such work as oiling, care of machines, and cleaning up would be performed by employees on the employer's time ; that wages would be paid weekly in cash ; that waiting time amounting to 15 minutes or more, either because of machine break-down or lack of work, would be paid for 33 There has been no essential difference as to recognition in the proposals , the Respondent having adopted almost all of the language of the Union 's contract. In the undersigned's opinion, there had not previously been any question about the Respondent's having recog- nized the Union in the unit certified. While phrased somewhat differently, the unit in the agreed recognition clause was actually that covered in the Board 's certification , the phrase, "including machinists and watchmen who are now working at or who may hereafter be employed," having been inserted by the Union to assure the inclusion of those two types of maintenance employees whenever such were employed . However, the Respondent did not have any employees classified as watchmen. MASON & HUGHES, INC. 865 at the, employees' straight time hourly rate, with the right reserved to the employer to assign other duties to employees during such waiting time ; that the employer would not have any garment manufacturing work done for him at penal institutions ; and that the employer would maintain sanitary conditions in the plant and observe sanitary and• safety laws. In contrast to the foregoing, the unresolved disagreements, when these con- ferences closed on June 2, were extensive. While there were a few matters, such as arbitration procedures and wages, on which disagreement was not complete, for the most.part the disagreements on major issues were fundamental. Some significant disagreements are now summarized. As to wages, the Respondent continued to oppose vigorously making any agreed wage increases retroactive, as provided in Article 20 of the Union's proposed agreement 34 The Respondent's proposed wage scale amounted to an increase of approximately 5 cents an hour for most employees. However, the Respondent, in advancing those proposals, took the position that it could not afford to continue its overtime work if wage increases were to be put into effect. There is nothing in the evidence which convinces the undersigned that the Union, at these or at later conferences, ever agreed to the elimination of the overtime. The Respondent's proposed wage scale appears generally to have been acceptable to the Union with two significant exceptions 30 The Union in- sisted that the 50-cent rate proposed by the Respondent for sewing room em- ployees with 6 months' experience, the rate applicable to the largest number of employees involved, should be 55 cents an hour, thus providing a general wage increase of 10 cents an hour over the 45-cent rate then paid, to accord with the Cotton Garment Directive ' The other classification as to whose rate the nion specifically objected was porters. The Respondent's proposed rate for porters and helpers after 6 months was 45 cents an hour. The other proposed rates after 6 months ranged from 50 cents to 60 cents. It was the Union's con- tention that the plant minimum should be 50 cents an hour after 6 months of service and that a plant minimum should apply to all employees regardless of race. The Union contract demanded a closed shop ; the Respondent's contract offered no form of union security. As to other Union demands, it appears that the Respondent consistently opposed all demands which would have involved any appreciable increase in its costs or might have placed it in a competitively dis- advantageous situation in producing civilian goods. Thus the Respondent, which was then paying overtime rates after 8 hours in any one day, as required under the Walsh-Healy Act on Government contract work, would not agree to overtime after 8 hours in any one day as a general contract provision because it would cripple the Respondent's competitive position on civilian production. "That article was implemented by a further provision that the Respondent make pay- ments each pay day into a fund to be held in escrow until the question of wages was finally determined. 11 It should be noted, however , that the Union desired the substitution of a piece-rate system of payment, which was prevalent in the industry , for the Respondent's time-rate system, but that the Respondent was not willing to agree to so fundamental a change. While it is not clear whether the Union 's piece-rate proposal was discussed at these June conferences , the undersigned believes that the institution of a piece-rate system was advanced then as well as at the earlier conferences in March. 36 It was the Union's position , eventually over-ruled during subsequent War Labor Board proceedings, that the 5-cent general wage increase given by the Respondent in November 1943 could not be applied to the 10 cents an hour general wage increase under the Cotton Garment Directive. 866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD However, the Respondent would agree in principle to paying overtime after 40 hours in any week, the statutory requirement of the Fair Labor Standards Act. Again, the Respondent, which operated its plant 6 days a week, refused the Union's demand for double time for Sundays and six specified holidays but was willing to agree to time and one half for Sundays and for the same six holidays 37 Similarly the Respondent would not agree to the Union's demand for 2 weeks' vacation with pay, after 6 months of service, contending that giving paid vacations was not a general practice among its competitors. The Respond- ent also opposed granting the Union's demand for a 10 minute paid rest period each morning and each afternoon. Additional subjects in dispute will appear from the discussions of the W. L. B. proceedings now to be considered. 5. The R. W. L. B. Panel proceeding . On June 12, 10 days after the foregoing conferences , the parties were notified by the Disputes Division of the R. W. L. B. that a Panel hearing would be held in Nashville on July 10 and were advised as to submittal of briefs and supporting material prior to the hearing. The submittals thereafter made by the Union and the Respondent were extensive and thorough , vigorously setting out, with numerous citations of precedent , the respective positions which the parties were taking. A few days before the hearing , each of the parties was furnished a copy of the brief and attached exhibits submitted by the other . The Union's brief and supporting documents totaled approximately 65 pages ; the Respondent's about 60 pages38 Careful study of these voluminous documents , in the under- signed's opinion , does not establish that positions taken by the Respondent can be said to be clearly arbitrary or unreasonable , when considered in the light of positions being taken by the Union, and when analyzed in view of the circum- stances revealed by the record as a whole. On July 10, during the hearing before the R. W. L. B. Panel of three, the Respondent and the Union reached an agreement on several additional contract provisions . For instance, a provision for 4 hours reporting time to be paid at regular rates , in line with the Union's demand and a clause in the Cotton Garment Directive , was agreed to by the Respondent, although it previously had opposed reporting time payments as a financial burden not being borne by its competitors. Also the procedure for submitting all disputes to final and binding arbitration , including a matter theretofore unresolved , the selection of the third arbitrator , was mutually accepted. The following clause, which represented a compromise of positions on the question of the right to discharge, was approved by both parties : The Employer shall have the right to discharge his employees for just cause. The Employer shall, however, provide the Union with a written statement at the time notice of discharge is given the employees , indicating the reasons for the discharge. On July 29, the Panel 's report and recommendations , accompanied by a letter stating procedures for snaking " written comments " thereon , was forwarded to the parties . In general , the Panel report recommended inclusion in the contract In its brief later filed with the W. L. B. Panel , the Respondent argued that under Executive Order No. 9240, then in effect, only time and one half could be paid for holidays and that double time could be paid for Sunday only when the Sunday was the seventh consecutive day worked in any given week. 38 The Union also submitted some 20 additional pages of supporting exhibits at the Panel hearings. MASON & HUGHES, INC. 867 of clauses which have been agreed upon but divided two to one on other pro- visions, the Industry Member dissenting with vigor on recommended provisions which the Respondent had opposed and the Labor Member dissenting with at least equal vigor to the recommended provisions which the Union had opposed. -The copy of the Panel report in evidence contains 35 single-spaced, type pages ; to it are appended 17 additional pages of dissenting opinions. Since many of the Panel's recommendations were later incorporated in. the R. W. L. B.'s Directive Order discussed below, mention will be made here of only part of the findings and recommendations of the Panel. In recommending, with the Industry Member dissenting, inclusion in the con- tract of the W. L. B.'s "standard maintenance of membership clause," the Panel based its recommendations solely on "general policy" considerations, finding that the Respondent and the Union "in this case have acted in good faith in their dealings and relations," and that there was "no evidence that the attitude or actions" of the Respondent "threatened or jeopardized" the existence of the Union.39 In recommending the "standard check-off clause" to which the the Respondent had strenuously objected, ° the Panel, with the Industry Member strongly dissenting, found that the Respondent was willing to make dues collection as convenient as possible; that no unusual physical conditions existed which would make dues collecting difficult ; and that while "some additional expenses would be involved," nothing in the Respondent's pay-roll procedure would make the check-off "exceptionally burdensome." Other clauses sought by the Union and opposed by the Respondent, largely for financial reasons, were recommended by the Panel. One week's vacation with pay was recommended for employees who had worked 1,600 hours during the 12 months prior to the vacation period. The Labor Member dissented because the 1,600-hour requirement was too high ; the Industry Member because it was too low and because the vacation award would "roughly cost the Company $2,500 or $3,000, which is a considerable burden for a small company admittedly not in the best financial condition." A morning and afternoon paid rest period of 10 minutes each was awarded over vigorous dissent by the Industry Member. As to the overtime rates, recommendations - followed the Union's position in providing for time and one half for all work in excess of 8 hours in any one clay and 40 hours in any one week, and the Respondent's position in providing time and one-half rather than double time for Sunday and holiday work, except that work on the seventh day in any week rated double time. As to the wage scale, the Panel, with the Labor Member dissenting emphatically and extensively," recommended the Respondent's proposed wage scale, except that the minimum after 6 months was set at 50 cents an hour, thus advancing from 45 to 50 cents the hourly rate of two porters and one helper. On the Union's contention that the Cotton Garment Directive called for a full 10-cent 31 In its brief to the Panel, the Union had contended that the actions of the Respondent constituted a "'pattern of influence and intimidation " of its . employees . Among matters 'which the Union advanced as contributing to such a pattern was the above discussed ques- tioning by Aughes of employees prior to the election as to whether they desired to work for 45 cents an hour with the overtime continued or to receive 50 cents an hour without overtime work. 40 The arguments advanced in this connection by the Respondent , which had limited clerical assistance , do not appear spurious or arbitrary. 41 In the six pages devoted to that dissent on the wage issue, the Union's alternative proposal , based on the introduction of the industry 's normal practice of piece-work payment, was stressed . The Labor Member stated in his dissent that 98 percent of the plants in the industry paid sewing room employees, among others , on a piece-work basis, thus increasing average earnings. 868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an hour increase over the Respondent's 45-cent current rate, the Panel found that the increase of 5 cents an hour which the Respondent had given in November 1943 applied to the 10-cent increase in the directive, quoting a memorandum from the N. W. L. B. that under the directive "all general increases given subsequent to August, 1943, be offset against the allowable amount." Thus the widely applicable sewing department rate for experienced' employees which the Panel recommended was 50 cents an hour rather than 55 cents as sought by the Union. The Panel's section on wages concluded with the following "note" to the Regional Board: It is the opinion of the Panel that a piece rate system of wages would be preferable to the current hourly wage rate. The Union has requested that such a system be formulated and there is some indication that the Company would be interested in establishing such a system. The Panel suggests that the Regional War Labor Board encourage the establishment of such an incentive payment and that the provisional wages in the contract carry the following statement : "Wages and methods of payment as agreed to from time to time between the parties hereto shall become a part of this agreement." On the strenuously contested issue of retroactive pay, which the Union had asked be made retroactive to December 15, 1943, the day it first asked the Respond- ent for recognition, the Panel suggested, with the Industry Member and the Labor Member partially dissenting, that the R. W. L. B. consider making wages effective as of the date of the certification of the case to it, April 27, 1944, but also pointed out two factors which the R. W. L. B. might wish to consider, that the elapsed time since certification had been longer than usual, and that the employees in January 1944 had chosen 91/2 hours of overtime at the then prevailing rate rather than a 40-hour week with a 50-cent rate.42 Certain other matters in the Panel report should be mentioned. The report, with the Labor Member dissenting, recommended rejection of the Union's pro- posed wage reopening clause, strongly opposed by the Respondent, whereby either party on 30 days' notice could call a conference to consider revision of all wage scales, differences unresolved after 10 days to be submitted to the binding arbi- tration procedure of the contract. The Panel also recommended denial of the Union's disputed clause applying to military service, which essentially provided, in addition to rights guaranteed by law, for a bonus of 2 weeks' pay upon induc. tion. However, the Union's clause providing for "no strikes, lock-cuts, or stop- pages of work," which the Respondent opposed on the ground that such clause might lead to controversy if it had to close its plant for reasons other than a dispute with the Union, was recommended. Also recommended was the Union's contested clause providing access to the plant during working hours to authorized representatives of the Union engaged in adjusting disputes. 42 The Labor Member, in his dissent , stated that he had voted for the certification date to conform to W. L. B. policy , but that he thought that the retroactive date should be earlier because of the Respondent ' s "pretty well-established delaying tactics." The Industry Member, in his dissent, stated that he believed that the Respondent had bargained all along in good faith ; that the Respondent had been working , 9%, hours overtime weekly at additional cost per unit manufactured ;. that the Respondent was "not in good financial condition" ; that the wage increase recommended would cost about $1,000 to $1,500 a month ; that no increase , in the price of the Respondent's. product could be obtained. from the Government ; and that while he opposed retroactive pay in . this case as "a great burden and hardship," the date finally selected represented a compromise. MASON & HUGHES, INC. 869 After the receipt of the Panel's report, either Albrecht or Marthenke called Martin and asked what the Respondent's position would be on executing an agree- ment embodying the Panel's recommendations. Subsequently, on August 14, Martin telephoned Albrecht and stated that the-Res^hondent'was willing to sign an agreement embodying the other recommendations, of the Panel if the provisions for retroactive pay, paid vacations, and paid rest periods were eliminated. Martin pointed out that the inclusion of those provisions, along with the wage increase awarded, would amount to spell an increase in costs that the Respondent would lose 41/2 cents on each pair of pants it was manufacturing for the Govern- ment. Albrecht raised the question of whether the Respondent would be willing to include a closed-shop provision in such an agreement if concessions were made by the Union. Martin said that "Hughes would not sign a closed-shop agree- ment." No understanding could be reached and it was agreed that the parties would file their respective comments on the Panel's report 43 On August 14, the Respondent filed with the R. W. L. B., copy to the Union, its statement as to price relief, which in essence took the position that the Panel's recommended wage adjustments, retroactive pay, paid vacations, and paid rest periods, would materially increase the Respondent's labor costs ; that the Respond- ent's Government contracts expressly provided that the unit cost to the Govern- ment could not be increased; and that the Respondent could absorb the wage increases, but not the paid vacations, paid rest periods, and retroactive pay." Simultaneously, the Respondent filed with the Office of Price Administration in Washington an application for price relief to the effect that if the N. W. L. B. entered an order incorporating the Panel's recommendations, the Respondent's direct labor costs would be increased 10 cents per unit with a resulting loss of 41/2 cents per unit on pants for which the Army Contract price (on a cut, make, and trim basis ) was 01 cents per pair, and that accordingly Maximum Price Regulation No. 172, should be amended to permit a contractor to base his prices on any increases in direct labor costs resulting from W. L. B. directives. Thereafter, the Respondent on August 17 and the Union on August 21, duly filed with the 11. W. L. B. and served upon one another their respective com- ments on the Panel's report. Those 2 documents, which together exceed 50 pages, are about equally detailed. In general, each ably advances arguments, which on the whole appear reasonable , to show that the Panel's report should either be accepted or rejected , depending on whether said report's findings and recommendations are favorable to or contrary to the positions of the respective commenting parties. For instance, as to its financial condition, the Respondent reiterated its argument that its direct labor costs would be so increased by the Panel's recommendations as to result in a loss of 41/2 cents per garment. The Union, on the other hand, pointed out that the sewing room employees were paid on an hourly rather than a piece-work basis ; again asked 55 cents an hour for 43 The above findings as to the telephone conversation of August 14 between Albrecht and Martin are made upon the undersigned 's careful study of the versions of this conversation given by Marthenke on direct and on cross -examination, viewed in the light of all of the evidence , particularly the above quoted statement concerning a closed-shop agreement. That statement appeared on the single -page memorandum from which Marthenke attempted, during his testimony , to reconstruct the telephone conversation . The undersigned does not believe that the term "closed-shop" was used loosely and erroneously for "maintenance of membership" during that conversation by either Martin or Albrecht. He is satisfied that the quoted term entered the conversation as a counterproposal from Albrecht to which Martin replied that Hughes was not willing to sign a closed-shop agreement. 44 The substantial cost of the retroactive pay becomes evident when the 91/2 hours overtime which the Respondent had been working regularly is considered in calculating this retro- active pay which was accumulating week by week. 867351--50-vol. 86 5 -6 870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD those employees; and sought January 27, rather than April 27, as the retroactive date for wage adjustment. G. The Shop Rules On August 24, Marthenke, having received reports from employees that work- ing rules had been posted at the plant, wired the Respondent at Clarksville, asking for a copy of the rules immediately and stating that, as the bargaining agent, the Union insisted "on conference concerning such rules before they are made effective" and that "any disciplinary action taken under these rules until such conference will be viewed as failure to bargain." On August 25, Hughes wrote Marthenke that the telegram was being referred to "our attorneys" and that the Union would "hear from them directly." On September 11, no further word having been received, Albrecht wrote Martin concerning the foregoing communications and asked that Martin give the matter his early attention as the Union believed "a prompt understanding and disposition of it is extremely important to employee morale." On September 14, Martin wrote Albrecht, acknowledging his letter and enclosing a copy of the Shop Rules which Martin stated that Hughes had sent to him while he was in Washington. Martin explained that "heavy pressure of work" had delayed transmission of the rules and said that he would be glad to discuss the matter with Albrecht whenever he desired." The one-page document which Martin enclosed read : SHOP RULES Hrs. per day:, Hrs. per week 8 reg. 40 reg. Time : 7:30-12:00 A. M. 12:45-4:15 P. M. reg. 5: 15 P. M. at present Punch Clock IN not earlier than 5 minutes before Work Time. Punch Clock OUT not later than 5 minutes after work time. DO NOT oil or clean machines before bell rings for work. DO NOT go in dressing room unless absolutely necessary. DO NOT leave machine until bell rings at noon or night. DO NOT dress during working hours unless checked out. When bell rings check clock and be out of the building in 15 min. DO NOT leave factory during working hours without permission. PUT bottles in container and NOT on floor. DO NOT check anyone's clock card but your own. USE FIRE ESCAPE for fire only. When out more than one day on account of illness, must have Doctor's certificate, ANY other cause without permission you will be discharged. COMPANY'S DISCHARGE RULES Incompetency, inefficiency, insurbordination, misconduct, intoxication, pilfer- age, doing work in a negligent or careless manner, spoiling work, damaging machinery or equipment, misstatement on application , violation of shop rules, failure to report for working within three (3) working days after notification by the Company or absence without approval of the Company. +a While no conference specifically on this matter took place, the rules , which were ,eventually withdrawn , entered into a further protest, discussed below, in the Union's letter .of October 17. MASON & HUGHES, INC. 871 7. The R. W. L. B.'s Directive Order and developments surrounding appeals therefrom On October 3, the Regional War Labor Board mailed its Directive Order dated September 20 in Case No. 111-7728-D to the Respondent and the Union. For the most part, this Directive Order followed the recommendations of the Panel. Union security, maintenance of membership, and check-oft provisions, governed by usual procedures, were ordered. Also ordered were clauses prohibiting strikes or lock-outs and providing for arbitration. Overtime rates and wage rates were essentially those recommended by the Panel. This made wage rates retroactive to April 27, 1944, and set a plant minimum of 50 cents an hour for all experienced employees, including sewing machine operators, porters, and helpers. The phraseology which the Panel had recommended to enable the parties to change over to a piece-rate system of wage payments was also ordered included in the contract. However, the "issue of working hours for all employees" was "referred back to the parties for further negotiations," with instructions that, failing .agreement, the parties should "exhaust the grievance and arbitration machinery." Paid vacations of 1 week were ordered for employees with 1 year's service or more; pay to be computed at 2 percent of the employee's earnings during the previous 12 months. Employees who became eligible for such .vacations during 1944 were ordered granted a vacation. In keeping with the Panel's recommenda- tions, the Union's wage-reopening clause and its military-service clause were both denied. Contrary to the Panel's recommendation, the Union's request for .paid rest periods was also denied. The R. W. L. B.'s Directive Order required .that the terms and conditions therein be incorporated in a signed agreement unless a petition for review was duly filed with the National Board. On October 9, Albrecht wrote Martin, copy to Hughes; asking for a conference .in Martin's office on October 12 concerning signing an agreement incorporating -the terms of the Directive Order. No such meeting was held. However, on October 11, during a telephone conversation, Martin told Albrecht that the Re- rspondent intended to petition the N. W. L. B. for reconsideration of the wage portion of the Directive Order and that he could see no purpose in a meeting between the Respondent and the Union concerning translating the Directive Order into an agreement until that petition had been disposed of by the National Board, unless the Union was willing to waive retroactive pay. There is no evidence .that the Union indicated any willingness to consider doing so. On.October 16, the Respondent filed its petition for review of the Directive Order, sending a copy to the Union. This 11-page document stated that review -was sought only of Section I, subsection 7, of the Order, the section which in- cluded all wage rates and provided for retroactive pay to April 27. However, :the Respondent specifically asked for review only of two provisions of Section 1 _(7), retroactive pay and the 50-cent rate for the helper and the porters, both clearly within the scope of the appeal. As to the latter, the Respondent con- tended in essence that applying the 50-cent rather than the 45-cent rate to those -three employees created an inequality in the plant, since the duties of the helper ..and the two porters did not justify the-same rate as applied to more experienced and, skilled employees. As to retroactive pay, the Respondent contended that .such an order exceeded the authority of the W. L. B., contravened its established .policy,-and was unfair to and would cause substantial hardship to the Respond- ent. It was also contended that a novel problem was involved by virtue of the -increased take-home pay the employees had been receiving through their regular 872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 0112 hours overtime each week and that it would be inequitable and unjust to add retroactive pay increases to the overtime benefits already received. A careful study of this petition for review, in the light of what previously had transpired, does not, in the undersigned's opinion, support the contention of the General Counsel that the Respondent declined the Union's request for a conference and resorted instead to the "appellate procedure" of the W. L. B., in order "to hinder and delay" the Union in bargaining.46 On October 17, Albrecht wrote Hughes, copy to Martin, protesting that the Re- spondent had, again ignored the Union as the bargaining agent of its employees. After characterizing. the Respondent's action in August in posting the Shop Rules as "arbitrarily trying to impose and enforce unreasonable working rules" without consulting the Union, the letter stated that the Union was informed that the Respondent had posted in its plant on Saturday, October 14, a notice to the effect that starting Monday, October 16, the plant would work only 8 hours a day at 50 cents per hour without any overtime.'4 The Respondent's action was chal- lenged as contrary to Martin's telephone conversation of October 11, at which time no statement had been made that the Respondent intended to put any part of the Directive Order into effect pending disposition of its appeal to the N. W. L. B. In the closing paragraph of Albrecht's letter, the Respondent was notified that the Union was filing charges of refusal to bargain with the National Labor Relations Board, because circumstances compelled the Union to conclude that the Respondent did not intend to live up to its legal obligation to bargain in good faith. That same day, October 17, the Union forwarded a charge to the Tenth Regional Office of N. L. K. B., setting out in considerable detail, as unilateral action of the Respondent in violation of Section 8 (1) and (5), both the posting on August 24 of the Shop Rules and the posting on October 14 of the notice of chance in rates and elimination of overtime. On October 19, the Union filed a petition for reconsideration of four matters covered by the R. W. L. B.'s Directive Order in Case No. 111-7728-D. A copy thereof was served upon the Respondent which had not previously been informed that the Union intended to appeal any provision of said directive. This six-page document strongly urged that the Union's clauses covering wage reopening, rest periods, and military service should be awarded upon reconsideration 49 As to rest periods, the Union in its appeal argued that the Respondent had such rest periods in its Erin plant and that a denial of similar rest periods to the Clarksville employees would be "manifestly unfair." In urging a wage reopening clause, the Union pointed out that without such protection the employees would be "estopped from securing the benefits" of the then pending revision of the "Little Steel Formula." As to the wage rates, the fourth item appealed, the Union em- phasized that the Respondent was "one of very few" companies paying sewing machine operators on an hourly rather than a piece-work basis, thus constituting a circumstance deserving special treatment under the Cotton Garment Directive. 4e Cf. Matter of Brown Radio Service and Laboratory, 70 N. L. R. B. 476, 492, In which the facts are distinguishable from those here presented. 47 The letter also stated that the Union was advised that a forelady had told employees that they would be expected to produce as much in 8 hours as they previously had produced in 9 hours, but no evidence that any forelady made such a statement was introduced at the hearing before the undersigned. 48 This appeal stated that, as finally proposed by the Union , the military service clause, did not include an induction bonus. While the Union's position , as summarized in the Panel's report, included an induction bonus , it is apparent that an induction bonus was not being sought on appeal. MASON & HUGHES, INC. 873 It contended that the Regional Board had erred in applying the 5-cent increase of November 1943 to the 10-cent general increase to which it contended the employees were entitled under the Cotton Garment Directive. The Union insisted that, even if reversed on the foregoing point, as a matter of "equity" a rate higher than 50 cents an hour should be established for sewing machine operators, repair girls, ticket girls, bundle boys, and spreaders, since the 50-cent rate.in the Directive Order of October 3 applied to the unskilled and semiskilled classifications of porters, packers, and helpers, thus contravening the N. W. L. B.'s "established policies" as to "wage differentials between unskilled and skilled labor." On November 1, the Respondent filed with the N. W. L. B., copy to the Union, a 13-page answer to.the Union's petition for review, setting out in detail arguments and citations opposing the modification of the Directive Order in the 4 respects sought by the Union 49 As to rest periods at the Erin plant, the Respondent stated that while there were 2 rest periods of 5 minutes each during which employees were not allowed to leave the plant, there were no paid vacations at the Erin plant, as provided in the Directive Order for Clarksville. The Respondent cited a W. L. B. decision to support the contention that employees were not entitled to both paid rest periods and paid vacations, and contended that the paid 10- minute rest periods sought by the Union would actually result in 10 to 15 minute breaks in work, both morning and afternoon, with resulting curtailed production and increased direct labor costs of. approximately $5,500 per year. In opposing the wage reopening clause, the Respondent contended it had to know its labor costs in advance and cited 7 W. L. B. cases to support its contention that granting such a clause was not in accord with W. L. B. policy. As to the Union's con- tention that there should be a rate differential between unskilled and skilled clas- sifications, the Respondent pointed out that in its petition for review it had con- tended that, to create such a differential, the rates for the helper and the porters should be reduced from the 50 cents awarded by the R. W. L. B. to 45 cents an hour The Union, on the other hand, sought to create the desired differential by raising others, such as machine operators, to a rate above that 50-cent minimum. On November 4, the Union filed with the N. W. L. B., copy to the Respondent, a 13-page detailed answer to the Respondent's petition for review. Among other things, the Union contended that the Respondent was seeking "to inject the color question" into the case and was minimizing the duties of the helper and the porters who, in addition to janitorial work "appear to perform cutting room and shipping department duties requiring some degree of skill" ; that the mini- mum of 50 cents established by the Regional Board should be sustained; that no novel question arising from receipt of overtime pay by the employees was involved in the retroactive pay issue because the Respondent had made no effort to dis- continue such overtime prior to the issuance of the Directive Order ; and that the Respondent had not supported its contention that retroactive pay would result in financial hardship by offering to furnish "complete information con- cerning its finances and operations." In the meantime, on October 27, the field examiner of the N. L. R. B.'s Tenth Regional Office, assigned to investigate the Union's charge of October 17, had written the Union that Martin had stated that the Shop Rules posted in August were "substantially" the same rules that had been in effect for many years, although not previously reduced to writing or posted ; that the Union had re- 49 This document, like the preceding briefs and comments filed by the Respondent at various stages of the W. L. B. proceeding, was filed over the signatures of W. Gordon McKelvey and Joseph Martin, as attorneys for the Respondent ; as usual, it was also signed by Hughes. 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD quested no conference on those rules although Martin had written Albrecht on September 14 that he would be glad to discuss them; that the notice posted on October 14 had been taken down the afternoon of October 16, the date that it was to have become effective as to overtime elimination ; and that the plant had then continued to operate on the same basis as previously. The field examiner stated that if the notice was withdrawn on October 16, and no change in plant operations had taken place, that question was "moot." As to the Shop Rules,. the field examiner's opinion was that a technical violation of Section 8 (5) had occurred which was not "important enough to justify litigation" in view of Respondent's offer to discuss the rules which were "substantially the same rules that had been in effect at the Company for many years." In closing, the field examiner suggested that the Union withdraw the charge unless there were "some other points" involved or the Respondent's recital was incorrect. On November 10, Albrecht replied that the Union desired to withdraw its charge "without prejudice," since "our investigation discloses that the facts in the situa- tion are substantially those. set forth in your letter." 60 On December 7, Albrecht wrote Hughes that under a general N. W. L. B. order dated November 8, the Respondent could pay its employees a Christmas or year-end bonus of as much as $25 each without further W. L. B. approval and that the Union, as the collective bargaining agent of said employees, requested a bonus of $25 for the Clarksville employees. Hughes replied on December 8, re- gretting that the Respondent was unable to pay the bonus for "financial reason." On December 14, Albrecht and Gladys Dickason, Research Director for the Union, talked with Hughes at the plant for over 2 hours, but the record does not establish just what took place during their discussion. It appears likely, how- ever, that this was the occasion referred to briefly by Hughes in his testimony, when the Respondent's financial condition and its probable competitive position after the war were discussed 61 On December 18, Martin and Albrecht held a 40-minute telephone conversation which, in part at least, appears to have concerned vacations for July 1944.62 8. The National Board's Directive Order and developments thereafter On April 12, 1945, the National War Labor Board's Directive Order, dated March 23, in Case No. 111-7728-D, was mailed to the Respondent and the Union. In essence, that order, over six signatures, modified the Regional Board's Di- rective Order of September 20, 1944, only by directing that the following clause be substituted for the R. W. L. B.'s denial of the Union's request for a wage reopening clause : 66 Upon any substantial change in the National Wage Stabilization brought about by legislation, executive order, Presidential proclamation, or through interpretation by or directives of the Economic Stabilization Director, or 60 Shortly thereafter the Union forwarded its "Withdrawal Request ," on Form N . L. R. B. 326, furnished by the Regional Office. 61 Dickason was not called as a witness . Albrecht 's death prior to the hearing has been noted . Marthenke, who testified without objection that such a conference took place, had no direct knowledge of what was discussed . The extent of his knowledge was that a note in the Union's file summarizes the result of the conference by the initials "N. G." 62 Since Marthenke's testimony established that he had had no part in any conversation at that time as to vacations , the undersigned sustained the Respondent's objection to testi- mony by Marthenke as to what was reported to him as reflected in his notes. 5' The two labor representatives dissented on denial of the remainder of the Union's petition and the two industry representatives dissented on denial of the Respondent's petition. MASON & HUGHES, INC. 875 upon any change in the minimum stabilized rates (applicable to the classifi- cations within this plant ), either party, upon thirty (30) days' written notice to the other, shall have the right to open the contract for renegotia- tion of the present wage scale in conformity with such newly established wage policy. As to the other appealed matters, the National Board's order constituted a denial to the Union, without explanation, of paid rest periods, military service provisions, and a wage differential above the 50-cent minimum for certain classifications, chiefly machine operators. It constituted a similar unexplained denial to the Respondent of a 5-cent differential below the 50-cent minimum for the helper and the porters, and of any relief from the requirement that the wage rates. be made retroactive to April 27, 1944." On April 16, Albrecht wired both IIughes and Martin, asking for a conference on April 18, "to consmnate agreement in accordance with terms" of the- N. W. L. B.'s Directive Order. It is evident that shortly thereafter, probably during a telephone conversation, a meeting was agreed upon for April 24. On April 20, Albrecht wrote Martin, enclosing "a rough draft of a proposed agree- ment," based on the Directive Order, to apprise Martin and Hughes of the Union's position in advance of the April 24 conference so that negotiations could be constunated "in rather short order." The letter also stated that it would be appreciated if the Respondent could send the Union a draft of its counterproposal prior to the meeting. The 7-page "Agreement" which was enclosed was a com- plete contract incorporating essentially the provisions of the Regional Board's Directive as amended by the National Board, and specifically incorporating a provision for retroactive pay to April 27, 1944.'5 On April 24, Hughes and his two attorneys, Martin and McKelvey, met in Martin's office for about an hour with Albrecht and Marthenke. With respect to the Respondent 's position on the Union's proposed agreement, Martin stated at '"It should be noted that after the Regional Board's order, the Respondent had not appealed wage rates in general and had not filed an application for price relief in connection with its appeal of the helper and porter rates, which applied to only three individuals. This would appear to account for the seeming inconsistency between a copy of a letter dated January 5, 1945, introduced in evidence from the Union's files, the original of which the Respondent contended it could not find in its files , and the original of another letter, dated August 18, 1944 , from the Office of Price Administration , introduced in evidence by the Respondent , which acknowledged receipt , without protest as to timeliness of filing, of the Respondent 's "request for increased maximum prices based on a wage increase." That request, which has been discussed above , clearly was filed on August 14 , 1944 , within the 15 days allowed from receipt of the Panel 's report which was mailed on July 29, Saturday. The Union's copy of the letter of January 5, 1945, the original of which apparently was sent by the Director of the Disputes Division of the R. W. L. B . to Hughes, quoted a letter dated December 26, 1944, from the Office of Price Administration to the R. W. L. B. to the effect that "approval of proposed wage increases " would "not require any change in price ceilings" because the Respondent had "failed to file an application for a price increase within the time prescribed." Apparently , the seeming inconsistency between the letters of August 18, 1944 , and January 5, 1945, stems , as above indicated , from the fact that the Respondent did not again file an application for price relief after the issuance of the Regional Board's Directive Order. ca In several instances the language of the Directive Order was adapted to contract phraseology. As to certain relatively minor provisions , whether they were merely necessary clarifications of the order is debatable . There are some instances where some provisions not in the order were incorporated . For instance , noon -hour work was to be paid at time and one-half and the dates for vacations were set between July 1 and August 31 of each year. It should be recalled that the Regional Board's Order had referred the issue of working hours back to the parties for negotiations and that in the event of failure to agree the arbitration procedure was to be used. 876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the outset that the Respondent would not agree to retroactive wage payments, for financial reasons; to vacations for the year 1944, as that would amount to retroactive pay which it could not afford ; to payment of overtime after 8 hours in any one clay on civilian work, because it could not do so and meet competition; to checking off dues and initiation fees, because it would overburden its one- woman office force ; or to the inclusion of a wage reopening clause, because it had to know its cost. The Respondent stated that it was willing to include in an agreement paid vacations for 1945 and to put the wage scale in the Directive Order into effect immediately or whenever it was agreeable to the Union, but only on the basis of a 40-hour week with the 91/2 hours overtime eliminated. The Respondent's position on the Union's proposed agreement was discussed. Albrecht asked if the Respondent would submit to an audit to determine its financial ability ; Hughes refused. Marthenke made a formal request that the Respondent join With the Union in an application to the W. L. B. for permission to raise the wage minimum to 55 cents an hour. In refusing that request, Hughes pointed out that the Respondent was receiving less per garment then than it had been receiving the preceding year. The Respondent also rejected Albrecht's suggestion that the Union might be willing to waive retroactive pay if the Respondent would agree to a 55-cent wage minimum. During the course of that meeting, Albrecht also stated that the Union might be willing to make concessions if the Respondent would agree to "a closed shop." 60 Martin said that he would discuss that point with Hughes. Intermittently, the substitution of piece work for time work was discussed without results. Mar- thenke asked Martin if the provisions in the Union's agreement to which the Respondent had not expressed objections were acceptable. Martin would make no commitment on that point, stating that he had not had an opportunity to "check" the agreement," and that it was useless to discuss minor provisions when a major subject like wages was at issue. Sometime during the conference, Albrecht asked if the Respondent would sign an agreement comprising provisions to which it did not object and leaving the Union free to take action to obtain disputed provisions such as retroactive pay. The Respondent refused to sign such a partial agreement, insisting that it would sign only a complete agreement which embodied what it felt it could do and stay in business . At some point before the meeting ended, Martin stated that the Respondent was unwilling to comply with the Directive Order on the matters to which it had objected at the opening of the conference ; Marthenke took the position that anything less than 100 percent compliance was refusal to put the directive into effect. The meeting terminated without agreement being reached ; without the Respondent submitting a counterproposal as the Union had requested in its letter on April 20; 66 and without any discussion as to a further meeting. On April 26, Marthenke wrote Martin, enclosing a two-page carbon copy of the Union's "minutes" of the April 24 meeting. He asked Martin to advise the Union if the minutes were incorrect. On April 27, Martin wrote N arthenke that, after 66 The undersigned is satisfied that Albrecht meant closed shop in the literal sense when be used that term ; that the Respondent 's representatives so understood ; and that the Respondent was not objecting to the maintenance of membership provision in the Union's proposed agreement. 67 The word "check " is from Marthenke's notes and his testimony .on the conference. The undersigned does not believe that the evidence as a whole supports the General Counsel's ,contention that Martin admitted at that meeting that he "had not read" the Union's proposed contract. "There is some ambiguity in the evidence as to whether such a counterproposal was again specifically asked for at the April 24 meeting. MASON & HUGHES, INC. 877 a hasty examination, he had "noticed several things which should have been expressed somewhat differently" and that he would check more fully over the week end and write "in detail" the following week. Martin also asked the purpose of the Union's request. On April 28, Marthenke wrote Martin that, in order to avoid possible misunder- standings, the Union thought it best to transmit to the employer the Union's understanding of what had transpired, with the request that the employer check it and convey his impression, in order that each party could be fully informed in writing of the understanding of the other. Martin did not thereafter furnish the Union the check "in detail" which his letter of April 27 had indicated would be forthcoming. On June 1.8, the R. W. L. B. wired the Union that it had that day wired the Respondent to appear before the Board in Atlanta on June 28 to show cause why it had not complied with the R. W. L. B.'s Directive Order as modified by the National Board 50 The Union's presence at the hearing was requested. On June 26, Martin wrote the R. W. L. B., copy to the Union, that representa- tives of the Respondent would not appear at the hearing scheduled for June 28 and requested that an enclosed 13-page "response," also served on the Union, be treated as the Respondent's response to the show cause order. The document stated that the principal reason that the Respondent had not complied with the Directive Order was that the 14 months' retroactive wages required by it made the order "arbitrary and capricious." The response traced the history of the situation, stressing the fact that the employees by their own choice had been receiving 972 hours overtime each week, which overtime payments had increased by 3 cents the cost of each pair of pants manufactured for the Army, and that the Respondent could not successfully meet competition in a region which was largely unorganized if its direct labor costs were out of line. The Respondent, reiterat- ing that its employees had been receiving increased take-home pay because of the overtime, pointed out that the Union had not agreed in the conference ending June 2, 1944, to its proposal of a 50-cent minimum with overtime eliminated and that the Respondent's announced intention in October 1944, after the R. W. L. B.'s Directive Order had issued, to institute the 50-cent rate on a 40-hour basis, had met with such strong protest from the Union that the 491/2 hour week at the old rate had been continued. The Respondent's response also contended that the National Board's denial, under the circumstances of the case, of its petition to review retroactive wages "without any explanatory statement whatsoever hardly falls in the category of a fair hearing." The Respondent summarized its position at the April 24 meeting, which it stated remained "at present unchanged," as being that it would sign an agreement embodying the provisions of the Directive Order if retroactive wages, the wage reopening clause, 1944 vacations, time and a half after 8 hours, and the check-off were eliminated. The response adverted to a meeting during May 1945 between the Respondent's attorney GO and a representative of the Enforcement Division of the R. W. L. B., during which the April 24 meeting had been sum- marized, and the Board's representative had been advised that the Respondent would be the 50-cent minimum into effect anytime, nonretroactively and on a 59 In the interim , by means which Marthenke was not able to specify during his testimony, the Union had advised the R. W. L. B. that the Respondent had refused to comply with the Directive Order. 60 Unlike previous documents , Martin was the only attorney for the Respondent who signed the response with Hughes. 878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 40-hour per week basis.61 In concluding, the Respondent's response pointed out that in January 1945, the price of 61 cents which it had previously received per pair for Army pants had been reduced to 60 cents, and the $1.28 price for field trousers to $1.18; contended that it had been working 91/2 hours overtime per week for 3 years because it was patriotic to make as many garments for the Gov- ernment as possible while giving employees as much take-home pay as prices justified; and asserted that the Respondent believed that the Directive Order was "merely advisory" and that the Respondent "very definitely will not pay retro- active wages, including retroactive vacation pay," but stood "ready and willing at all times to put into effect the proposals heretofore made by it, and reiterated herein." On June 28, the date set for the show cause hearing which evidently did not take place, Albrecht wrote Hughes, copy to Martin, asking that the Respondent grant a week's paid vacation for 1945 during July or August in accordance with the Directive Order, since the Union understood that the Respondent had expressed willingness to do. The letter asked that the Union be advised "at once" so that the parties could "jointly work out any necessary details." 9. The second W. L. B. case On July 5, before receiving a reply to the above letter, Albrecht again wrote Hughes, a copy to Martin, requesting a meeting on July 17 to commence nego- tiations on six requests which, because of "certain changes" in N. W. L. B. policy and "other circumstances," the Union was making in that letter 62 Those six requests, some of which constituted new demands or modifications of de- mands in the Union's original contract of February 23, 1944, were essentially : (1) a 5-cent per hour general increase in addition to the increase in the Directive Order; (2) minimum hourly rates, 40 cents for the first 3 months, 45 cents for the second 3 months, and 55 cents after 6 months' experience; (3) annual paid vacations beginning in 1945; 1 week for employees with less than 5 years' serv- ice, and 2 weeks for employees with more than 5 years' service; (4) "pay" for all employees for six named holidays; 63 (5) jointly established entrance rates, rate ranges, and schedules for length-of-service increases, based on hourly rates for employees with 6 months of service-for sewing room employees, from 55 cents to 85 cents; for cutting room employees, from 55 cents to $1.25; and for shipping room employees and other, from 715 cents to $1; °" and (6) coverage of the Respondent's Clarksville employees who were members of the Union by the Amalgamated Cotton Garment Industry Insurance Fund. On July 12, Martin wrote Albrecht that Hughes had carefully considered the Union's six demands of July 5; that the Respondent could not meet all or any one of them ; and that Hughes would be "glad to meet" representatives of the Union in Martin's office on July 17 to discuss "the demands in any detail," if ' The response also stated that the R . W. L. B.'s representative was going to contact the Union and report back as to whether a settlement could be reached , and that such a report had not been received. az These changes and circumstances were not stated in the letter or revealed by the evidence. 63 The six holidays named were the six for which the Directive Order provided time and a half when worked . The above request evidently was an additional demand for straight time payment for holidays which were not worked. 64 Top rates in the Directive Order were 60 cents for markers, cutters , and assistant machinists. MASON & HUGHES, INC. 879 the Union desired such a meeting in view of Hughes' "conclusion that the demands of the Union cannot be met." On July 23, pursuant to arrangements initiated on July 16, in a telephone con- versation between Marthenke and Martin and later confirmed, a conference was held between the Respondent and the Union at which, in accordance with the Respondent's assent and the Union's arrangements, a Commissioner of Con- ciliation was present. The Commissioner, R. D. Hunt, did not participate in the conference which was held in Martin's office. Hughes and Martin represented the Respondent ; Albrecht, Marthenke, and Saul Reiger, of the Union's Research Department, represented the Union. In discussing the Union's six requests, the Respondent took the position that it was financially unable to meet them and was unwilling to increase its labor costs because its prospects were unstable on Government orders and extremely uncertain as to civilian work. The Union stated that in its opinion the Respondent had not submitted "one shred of evi- dence" to support the position, taken throughout negotiations, that it was financially unable to meet the Union's demands. There was an extensive discussion of the introduction of a piece-work system, the Union pointing out that much of the Respondent's production and financial problem could probably be eliminated thereby. The Respondent explained that it had not been impressed with its several years' experience with piece work, prior to going on Government work, and had abandoned an attempt to reintro- duce piece work when employees had resisted. The Respondent admitted in- terest in the possibilities of piece work for civilian work after the war, but was unwilling to go into the matter while on Government war work. Albrecht pro- posed the institution in the sewing room of either a piece-work system of payment, or a system of job classifications based on time work with a 55 cents per hour minimum, stating that if the Respondent would agree to either, the Union would take up with the employees the matter of waiving retroactive pay. The Re- spondent would not accept, saying that it could see merit in the proposal but was unwilling to increase its labor costs. However, Hughes stated that lie wanted to talk further with Martin about those propositions. The Respond- ent stated it was willing to grant a 1 week's vacation during July or August if the Union would waive retroactive pay ; this was not acceptable to the Union. The Union made no comment as to the Respondent's offer to put the 50-cent rate into effect at anytime, but on the basis of a 40-hour week. The conference ad- journed with the understanding that the Respondent would meet with or com- anunicate with the Union not later than July 26. On July 26, Martin telephoned Albrecht and informed him that Hughes could not agree to a piece-rate system or to job classifications. Albrecht asked Martin to furnish total labor costs on a pair of pants so the Union could submit the costs for analysis to its engineer to see if piece rates could be set which would increase earnings and production without increasing the Respondent's total labor costs. Martin agreed to advise Albrecht after he had taken the matter up with Hughes. On July 28, Martin advised Albrecht by telephone that the Respondent would not furnish the labor costs requested and that, unless the Union withdrew its demands, the issues between the Union and the Respondent were deadlocked. Albrecht said he would advise Commissioner Hunt of the situation and send Martin a copy of his communication to Hunt" 0 Findings as to the above telephone conversations are made upon office memoranda thereof from the Union's files. Copies of said memoranda, along with other matter sent to Commissioner Hunt on August 1, were also sent to Martin on August 1 for his comment as to any errors; no comment was thereafter received. 880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On August 1, Albrecht wrote Commissioner Hunt, enclosing the Union's sum- maries of the July 23 conference and of the above telephone conversations of July 26 and 28. Albrecht pointed out that the issues were deadlocked and that further bargaining was not possible. He asked that the case be certified to the N. W. L. B. Also on August 1, the Union received a telegram from the N. W. L. B. which quoted a telegram sent that day by the N. W. L. B. to the Respondent, asking the Respondent to advise the N. W. L. B. by August 7 of steps taken by it to effectuate the Directive Order in Case No. 111-7728-D. The record does not show what answer, if any, the Respondent made to the N. W. L. B.'s telegram. On August 17, shortly after V-J Day, the Acting Director of the Conciliation Service wrote the Union that its controversy with the Respondent had been certified on August 13 to the N. W. L. B. as Case No. 111-17700-D, the principal issues being wages, vacations, holidays, and the insurance fund.0° On August 25, the Disputes Division of the R. W. L. B. wrote the Union that a hearing would be held in Nashville on September 18. On August 28, Albrecht wrote Hughes (copy to Martin) concerning the lay-oft of employees which had taken place after the surrender of Japan, asking when and on what basis the Respondent intended to resume operations at the Clarks- ville Plant. That letter requested that the Respondent, in conformity with past offers, put the 50-cent minimum and the 5 cents per hour general wage increase of the Directive Order into effect, if the Respondent planned to reduce hours to 40 or less, on resumption of operations. . On August 31, the Disputes Division of the R. W. L. B. wrote the Union and the Respondent, urging them, in view of the Board's emphasis since V-J Day on "the restoration of free collective bargaining to its normal function," to resume negotiations prior to the date of the hearing, in an attempt to narrow the issues or to settle the case. The letter stated, however, that resumption of bargaining should not delay submission of briefs. On September 5, Marthenke, in a telephone conversation with Martin con- cerning the lay-offs discussed in Albrecht's letter of August 28, asked for a list of employees laid off, the dates of the lay-offs, and the names and work assign- ments of employees working. Martin said he would talk with Hughes and advise Marthenke as soon as possible. On September 6, Martin wrote Albrecht and Marthenke, jointly, that the plant would resume operations on September 10; would manufacture Army pants on a contract to be completed by December 31, i945; and that all employees laid off would be reemployed on a 491/2-hour per week basis with the same wages, hours, and conditions which had prevailed prior to the shut-down on August 22. While the Respondent did not furnish most of the detailed information requested, the employees did return to work sub- stantially as stated in the foregoing letter and the Union, according to Marthenke, considered that its request thereupon became moot. Oil September 6, Martin, on behalf of the Respondent, write the R. W. L. B. (copy to Albrecht) that the Respondent would not appear at the hearing set for September 18 or file a brief, since it could not comply with an order of the Board if such order should sustain the contentions of the Union. The Respondent cited several circumstances, among them contract cancellations, pressure of work on Hughes, and material shortages and price ceilings which complicated plans to return to civilian production upon completion of its then only remaining Army w It is not clear from the documents in evidence what became of the other case, No. 111- 7728-D, but Case No. 111-17700-D apparently was being treated as a new and separate one. MASON & HUGHES, INC. 881 contract, to show that its affairs were in such shape and its immediate future so uncertain that participation in the hearing was "both impracticable and im- possible." As'to bargaining, the letter stated that the Respondent was "ready to resume negotiations at any convenient time, although it cannot possibly meet the present demands of the Union." The letter also stated that "when the Com- pany can obtain materials for civilian production, and can obtain price relief to the extent that it can engage in such production without loss, it will be in position to advise the Union how far it can go in the payment of wages and other monetary benefits to its employees. Certainly, at that time further bargaining conferences will be in order." On September 11, the R. W. L. B. issued a formal notice postponing the hearing in Case No. 111-17700-D indefinitely because of "unexpected developments." On September 11, the R. W. L. B. also wired the Union that because the Company would not appear or file a brief in the current case and had failed to comply with a previous directive order, the hearing was canceled and the case was being referred to the N. W. L. B. for compliance. So far as the evidence shows, the foregoing actions of September 11 by the R. W. L. B. constituted the last W. L. B. action relative to the relations of the Union and the Respondent. Marthenke testified that, before writing the letter of October 2, 1945, discussed below, the Union had come to feel that any hope for further action by the W. L. B. on any pending matters had disappeared "for all practical purposes" and that the Union was proceeding on the assumption that the W. L. B. had "practically passed out of existence." 10. Developments from October through December 1945 On October 2, Marthenke wrote Hughes , copy to Martin, stating that since March 1944 the Respondent had "consistently contended" that it was financially tunable to increase wages , or to grant retroactive pay without price relief, but had .also "constantly refused" to furnish the Union with evidence in support of that .position . The letter stated that such refusal bordered closely on or actually was refusal to bargain in good faith , and asked the Respondent to demonstrate its intention to bargain in good faith by furnishing the Union immediately : ( 1) its balance sheets as of December 31, 1943, December 31, 1944, and June 30, 1945; (2) its profit and loss statements for the years of 1943 and 1944 and for the 6 months ending June 30, 1945 ; 87 (3) its profit and loss statements for the same three periods for the Respondent's Clarksville plant; (4) a schedule of labor costs on each type of garment manufactured , broken down into costs for each of four named plant departments and also for "supervision"; and (5 ) a schedule, broken down according to specified details , for all operations on each type of garment manufactured . This two-page letter closed with a request for a favor- able reply by October 8, and a statement that failure to provide the information requested could be interpreted by the Union as failure to bargain in violation of . Section 8 ( 5) of the National Labor Relations Act. On October 4, Martin, on behalf of Hughes, wrote Marthenke a two-page letter, stating that neither he nor Hughes appreciated the tenor of the letter of -October 2 and that they interpreted that letter as saying , in effect, that the Union would file charges with the National Labor Relations Board if the Respondent failed to furnish the information requested . Martin's letter stated that the -Respondent refused to furnish the information ; denied that the refusal amounted ° Presumably the first two requests included both plants. 882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to refusal to bargain in good faith ; pointed out that the Respondent had repeatedly met with the Union, considered its proposals, and advised it what the Respondent was willing to do. In closing, the letter stated that no law required the Respondent to meet the Union's demands and that "threatening letters," such as that of October 2, would not improve relationships. On October 23, Marthenke wrote Martin (copy to Hughes) stated that the Union desired a conference with Martin and Hughes on Wednesday, October 31, and asked to be advised as soon as possible. On October 26, Marthenke and Martin held two telephone conversations, the results of which were confirmed in a letter from Martin to Marthenke on October 26 which stated, in essence, that "pressure of work incident to the reconversion of the plant at Clarksville" made it impossible for Hughes to meet during the week suggested by the Union, but that satisfactory arrangements had been confirmed, by telephone between Martin to Hughes, for a meeting in Martin's office on Monday, November 5, At the November 5 meeting, the proposed agreement which the Union had submitted on April 20 and which had been considered at the conference of April 24, formed the basis for discussion. Martin and Hughes represented the Respondent; Marthenke and 2 employee committee members represented the Union.88 The proposed agreement, which had not previously been gone over in detail, and which embodied the N. W. L. B.'s Directive Order, was discussed clause by clause. There was no dispute on some of the 16 articles, such as the provision for the exclusive recognition of the Union. Other articles were acceptable to the Respondent after minor revisions or clarifications. Some articles were objected to only in part. For instance, while the Respondent agreed to a week's vacation for 1946, it desired to reserve to itself the right to designate the week to be taken, and asked that the year or more of service required for eligibility be continuous service. On other matters, there were clear and unresolved disagreements. The Respondent would not agree to any form of union security ; 6° to pay overtime at the rate of time and a half for work in excess of 8 hours in any one day ; or to the provision for equal division of work among the employees, insofar as practicable, by agreement between the Respondent and the Union. On the last matter, the Respondent insisting that it would be the sole judge of how work should be divided when work was slack. The Respondent also objected to the provision that representatives of the Union would have access to the plant in adjusting disputes and wanted access limited to the Respondent's office. As to wages, the Union did not press for retroactive pay." The discussion on wages pertained to the substitution of piece-work rates for time work. Marthenke agreed to submit a written proposal containing the Union's proposition on piece work, a matter not covered by the proposed contract under discussion. On November 15, pursuant to arrangements made by telephone and confirmed by mail, a short conference was held in Martin's office during which the only 18 Marthenke did not have minutes of the meeting of November 5, and expressed uncertainty at points in his testimony about that meeting . However, the undersigned is satisfied from Marthenke 's testimony as a whole , based as it was partly on notations which he bad made on his copy of the agreement discussed at that meeting , that substantially what is set out herein transpired on November 5. 6' The agreement provided for maintenance -of-membership and a check -off in line with the Directive Order. 70 The undersigned credits Marthenke's testimony to the effect that with the November 5 conference the Union considered it was entering "a new phase of negotiations" without the W. L. B. in the picture and that it did not in that conference or the ones which followed press for retroactive pay. MASON & HUGHES, INC. 883 subject discussed was a single-page piece-work proposition which Marthenke submitted. In essence, this proposal of the Union provided for establishing, within 60 days after signing the agreement, a piece-work system for sewing room employees and pressers to be set up so as to yield on the average 10 percent more than the 50-cent minimum for experienced employees. Details as to estab- lishing piece rates and changing them whenever necessary because of changes in garments, operations, or machines, were to be worked out between the Respondent and the Union. The Union also agreed to cooperate in furnishing technical information, assistance, and advice. It appears likely that Marthenke, in presenting the proposal, offered to make available the services of the Union's production engineer. In any event, the Respondent desired time to study the Union's proposal. On December 5, pursuant to a series of telephone calls and letters, a meeting, which had first been set for November 27, changed to November 28, and again postponed because Martin had an infected tooth, was held in Martin's office. Martin and Hughes represented the Respondent; Marthenke and two employees the Union." At the opening of the conference, which lasted about an hour and a half, Marthenke asked if the Respondent had prepared a counterproposal to the Union's piece-work proposition. Martin stated that he had not had time but that, after careful consideration of the wage problem, the Respondent's position was that it was unwilling to commit itself to any wage increase or revision until after the completion of a Government contract about March 1, 1946, and that it would continue the same wage rates and the 491/2-hour week until the Government contract was completed. Martin explained that the Respondent's position stemmed from uncertainties as to the ceiling price situ- ation, the availability of piece goods, and its ability to secure civilian production. After discussing the situation, Marthenke asked if the Respondent would sign an agreement continuing the then existing wage scale and working hours, subject to wages being negotiated again about March 1, 1946. Martin put the Re- spondent's refusal on the ground that to do so would amount to entering into an incomplete agreement and expressed the opinion that negotiations for an agreement should be frozen until March 1 and then resumed. Marthenke replied that the employees were entitled to a contract; he took issue with the Respond- ent's contention that signing an agreement providing for subsequent wage negotiations would amount to signing an incomplete agreement. After Hughes had stated that he was always willing to discuss in his office any complaint the Union might want to take up, Marthenke pointed out that without an agreement there was no formal machinery carrying through to arbitration for settling complaints'z The conference of December 5 closed with the Respondent persisting in its refusal to consider signing an agreement providing for further negotiation on the wage question. However, while the Respondent took essentially the position that negotiations should be suspended for about 3 months, the Respondent did not then, or at any preceding or succeeding conference, raise any question as to the Union's right to represent the Clarksville employees, pursuant to the certifi- cation of the N. L. R. B. 71 Hughes apparently granted employee committee members permission to be absent from their work to attend conferences whenever requested to do so. 12 The arbitration clause in the proposed agreement had been accepted on November 5. While there were some clauses in the agreement upon which accord had not been reached,. there is no evidence that the Respondent adverted to any of them during the discussion of December 5. 884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 11. Developments during early 1946 On January 3, Marthenke wrote Hughes (copy to Martin) requesting a confer- ence on January 11 at Martin's office to continue "negotiation of an agreement." On January 9, Martin telephoned Marthenke concerning the Union's request. He told Marthenke that he had communicated with Hughes ; that Hughes was going to New York City to see what could be done about obtaining piece goods ; and that, under those circumstances, it was not possible to say when the Re- spondent could meet with the Union. Martin told Marthenke that he would call him sometime after January 21. Apparently Martin did not confirm that telephone conversation in writing, as Marthenke understood he would do. In any event, there followed a "period of waiting" about which Marthenke testified "There was nothing I could do, and I presume there was nothing he [Martin] could do in view of the circumstances, on informing me about the meeting." On January 24, Marthenke wrote Hughes that he had been advised of the dis- charge on January 8 of Ora Lee Bryant, that his investigation indicated that her discharge was unjustifiable, and that he wanted to take up the matter as a grievance at the Respondent's plant office in Clarksville on Monday, January 28. On January 25, Hughes wrote Marthenke to the effect that lie was tied up with detailed work on tax matters which had to be in by the end of that mouth and that he would appreciate Marthenke postponing coming to the plant until after February 1. Marthenke replied by return wire that the discharge required immediate attention and that he insisted on the conference on Monday unless Bryant were returned to work. On January 28, Martin telephoned Marthenke concerning the Bryant case. What was said during that conversation is not clear from Marthenke's testimony. It is evident, however, that Marthenke learned either then or shortly thereafter that Bryant had secured a position in another factory in Clarksville and did not want to return to work for the Respondent. In any event, the Union decided to drop the matter. On January 30, Martin again telephoned Marthenke and, in a conversation which also involved another matter," advised him that it was impossible for the Respondent to meet with the Union before February. On February 4, Marthenke wrote Hughes (copy to Martin) requesting a conference on February 11 in Mar- tin's office to continue negotiations. On the evening of February 4, however, Albrecht was killed and Marthenke hospitalized as the result of an automobile accident. On February 8, Marthenke addressed a letter to Hughes (copy to Martin) asking that the conference be postponed to February (25, because he was still confined to the hospital. On February 21, Marthenke telephoned Martin and asked that the conference be set over to March 4 because a union staff meeting had been set in Knoxville to make arrangements necessitated by Albrecht's death. Thereafter, by telephone and correspondence, a meeting was definitely set for March 5 in Martin's office. The conference on March 5, between Hughes and Martin for the Respondent and Marthenke, Bessie Moore, and three employees for the Union, lasted a little over an hour. The time was devoted to a discussion of wages and piece work, based upon the Union's previously submitted piece-work proposal. While the Respondent would not commit itself to the institution of a piece-work system, it 73 Some of the cases cited by the parties in the instant matter show that the law firms of both Martin and McKelvey were , during the course of the events discussed herein, also representing other companies in dealings with the Union , in which dealings Albrecht and Marthenke were also representing the Union. MASON & HUGHES, INC. 885 agreed to meet with the Union's engineer, Charles Dispensa, whose headquarters were in Red Bank, New Jersey. The Union stated it would be necessary to have some time to contact Dispensa and to arrange for him to come to a conference so the Respondent could "get a first-hand look at him" and "discuss the entire situation with him." On March 19, Marthenke wrote Martin (copy to Hughes) asking for a conference in Clarksville some time during the week beginning April 1. The record con- tains no reply to that letter. However, Marthenke, who apparently had no inde- pendent recollection on the point and was uncertain as to whether or not such a meeting had been held, testified on cross-examination that the letter of March 19 was the type of letter usually handled between himself and Martin in telephone conversations; that Martin might have called him with respect to it; and that there was nothing in the Union's files to indicate what had happened. It appears likely, from the fact that the meeting requested was for Clarksville and from the way in which the meeting of March 5 had concluded, that the meeting requested in the March 19 letter was intended to include Dispensa, who actually did attend the next meeting which the record reveals with certainty did occur. Everything considered, the undersigned believes that no meeting was held early in April and that arrangements were made by telephone to work out a meeting for a later date. In the undersigned's opinion, the record is ambiguous as to whether the delay which followed was due to requests by the Respondent, the Union, or both." In any event, the evidence does not establish that either the Respondent or the Union was then protesting that the meeting was being unnecessarily delayed. The next evidence chronologically as to the Union's attempt to arrange a meet- ing was a telegram sent from Atlantic City, New Jersey, where Marthenke was attending a national conference of the Union. According to Marthenke, he sent the telegram after lie had "finally determined from Mr. Dispensa just when he could come to Tennessee." This telegram to Martin, dated May 9, stated that Dispensa could visit the plant on May 20, at a time convenient to Martin and Hughes, and asked for confirmation to the Union's Nashville office. Upon return- ing to Nashville, Marthenke found awaiting him a letter from Martin dated May 11, which advised him that Hughes and Martin could meet with the Union's engineer in Clarksville at 2: 30 p. in., May 20. 12. The meeting of May 20, 1946, and subsequent development The meeting thus finally arranged was held in Hughes' private office at the Clarksville plant. As usual, Hughes and Martin represented the Respondent. The Union was represented by Marthenke, Dispensa, and Edward A. Blair, a national representative of the Union who had come to Nashville after Albrecht's death and was sharing with. Marthenke responsibility for that office." The dis- cussion at this meeting, which lasted approximately 3 hours, was largely between Dispensa and Hughes and pertained, in substantial part, to technical production and piece-work problems. "The delay may well have arisen because of complications involved in arranging for Dispensa's presence at a meeting. 'a While this conference was the first bargaining conference between the parties which Blair had attended , he had had friendly discussions with Hughes on such matters as busi- ness conditions , vacation pay, and piece rates . Blair also had taken up grievances , including two discharges . While the evidence as to the grievances is somewhat cursory in nature, it is apparent that when Blair presented the Union 's grievances , Hughes treated him very courteously and told him that he would investigate the protested actions . Hughes later reported his findings and his decisions , in each case adverse to the Union's contentions. 867351-50-vol. 86-57 886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As the discussion progressed , Hughes became favorably impressed both with Dispensa's personality and with his technical knowledge of production problems. The interchange between them was apparently frank and much of time fairly technical, ranging from the Respondent 's antiquated equipment to possibilities of making savings through changed methods and lay-out and through individually powered sewing machines . In general , Hughes insisted that his labor costs were too high and that he could not afford the expense involved in new equipment or extensive plant changes. Dispensa's suggestions eventually centered largely around the more efficient use of present equipment through changes in produc- tion procedure and the institution of piece work. During the afternoon , Hughes showed Dispensa a sample pair of white duck pants being considered for civilian production ; they discussed problems connected with its manufacture . At one point , Dispensa asked to go through the plant. Hughes did not offer to take Dispensa through the plant , but produced a diagram thereof which they discussed together for sometime.76 At another point, Hughes showed Dispensa some figures on costs. After examining them and discussing labor costs, Dispensa expressed the opinion that Hughes' labor costs were so high that he could not afford to increase his labor costs if he were to maintain a com- petitive position. Dispensa explained how he believed Hughes could reduce labor costs substantially by the institution of a piece-work system, coupled with certain modifications in production procedure which would not involve expensive new equipment or plant lay-out. . Hughes was impressed favorably with Dispensa's proposals but insisted that he would need about 30 days to get things in shape in making a transition to civilian production before deciding whether he wanted to commit himself to such a plan. The Union, which had brought Dispensa to Clarksville and was anxious to utilize his time as advantageously as possible, contended that 2 days was long enough for the Respondent to make up its mind whether it would agree to a piece- work system and wanted to utilize Dispensa's services, which the Union was willing to make available without cost. Hughes insisted that he needed 30 days in which to work out transition problems. However, he finally agreed, upon the Union's insistence, that he would let the Union know his intentions in 2 days.77 76 It is evident that Martin , Marthenke , and Blair acted largely as observers during such technical discussions between Hughes and Dispensa . Apparently those three did not attempt to examine items , such as the diagram , which Hughes showed to Dispensa during such discussions. 77 The above summary of what transpired at the May 20 conference is based upon consider- ation of the fairly detailed testimony of the three witnesses , Marthenke , Blair, and Hughes, who testified about this meeting. When admissions made on cross-examination are weighed, it becomes apparent that the testimony of these three witnesses differs more in emphasis than in substance. The undersigned believes that the facts above set out constitute a reasonably accurate picture of what transpired , and deems it unnecessary to recite the varying shades of testimony which have been considered in making these findings. It should be noted that the Union left the meeting expecting a final answer 2 days later. However, the Respondent had been reluctant about making a commitment within so short a period . There is no.doubt that the meeting of May 20 was carried through in such a way as to impress both the Respondent and the Union with the possibility of working out a piece-work proposition , a problem which had been in the picture since the first contract negotiations in March 1944 . For instance , Hughes testified as to Dispensa , "I got to liking this fellow Dispebsa, frankly. He was the first man I had come in contact with that I felt like really knew what he was talking about as far as the actual manufacturing of garments, and I was sold on him ." As to the results of the conference, Marthenke testified, "Mr. Hughes indicated he was genuinely interested ; the fact that Dispensa was qualified to do these things and was going to help him to do them seemed to make everybody feel pretty good . . . I can frankly say at this time that when I left that conference that afternoon, I had the best feeling I ever had after a Mason & Hughes conference." MASON & HUGHES, INC. 887 On May 22, Martin telephoned the Union's office and talked with Blair. About .half an hour later, Dispensa telephoned Martin and talked with him. The testi- mony of Martin and Blair is flatly contradictory as to what Martin told Blair during their conversation . Dispensa did not testify, but Martin also testified briefly as to that second conversation. From all of the evidence, including Marthenke's testimony as to the reasons for the actions subsequently taken by the Union, the undersigned is satisfied that Martin told Blair and Dispensa substan- tially the same thing on May 22. As to the first telephone conversation on May 22, Blair testified that Martin had said that he and Hughes bad discussed the matter further and that "they had decided that the Union could be of no further use to them." Blair also testified that Martin had not made any mention of the Respondent 's desiring additional time in which to consider the matter. Martin testified that he was positive that he had not told Blair or Dispensa , during those telephone conversations , that the Union could be of no further service to the Respondent. Martin further testi- fied, in essence, that he had told both Blair and Dispensa that Hughes was insist- ing that he be given additional time to consider the proposed piece-rate system and that Hughes was unwilling to do anything about instituting it until after he had had additional time, as requested on May 20, to get his plant in order. Everything considered , the undersigned is convinced and finds that , interpreted in the light of what had transpired on May 20, the import of what Martin told Blair and Dispensa during their respective telephone conversations on May 22 was that the Respondent was unwilling then to make any commitments as to the in- stitution of the Union 's piece-rate proposal or the utilization of Dispensa 's services until after Hughes had had additional time to consider the question and to make adjustments. Several factors lead to this conclusion. Among them are the plausibility of Martin's version of the conversations, when viewed in the light of what had proceeded, and the corroboration of his version which is afforded by a letter, circulated by the Union a few days after those telephone conversations, which stated that Hughes was asking "for more time." '8 After discussing the situation with Blair and Dispensa, Marthenke, on May 24, signed the original charge that the .Respondent was refusing "to bargain in good faith." 70 On May 27, the Regional Director wrote the Respondent that the Union had filedcharges of refusal to bargain." At the hearing, when asked by his attorney what his reaction had been upon learning that the Union had filed charges of refusal to bargain, Hughes testified : I was stunned. I didn't-I couldn't understand it. Our meeting on that date was the most friendly, close meeting that I had ever seen. I have never been as stunned in my life on any issue as I was then. And then, frankly, I got sore. I said that if that is the kind of ball they play, well, then, I don't want any part of it, because we had been pretty- I have never had any meetings with the Union or anybody else-on the 20th, 78 This letter, stating that charges had been filed with the N . L. R. B., was sent about May 25 over Blair 's signature . It contained the following paragraph : Now Mr. Hughes has inferred that lie is not ready at this time to deal with us. He asked for more time. This makes us laugh. It is our opinion that we have been too lenient with him in the past , and we want action now. We have no time for further excuses and delays on his part and we feel that you, as an Amalgamated member, are with us 100%. 48 This charge , discussed more fully in the opening section of this report , was received by the Regional Office on May 27. 80 Parts of that letter and the Respondent's reply appear in footnote 11. 888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I will never forget-that was any more friendly, and then for them to go out of there when I had asked for a 30-day period,81 when I felt like Mr. Charles Dispensa, especially him, knew my problems, agreed with me ; I didn't know what to think. It just kind of got me down. So, I said if that is their attitude toward me, then, goodbye. About June 20, 1946, without further contacting the Union, the Respondent, with the assistance of a textile industrial engineer, installed a piece-work system in its Clarksville plant.' During the first week in July 1946, the Respondent closed its plant and gave its employees a week's vacation with pay. The Union, learning of these matters through its members, wrote the Respondent two letters making inquiry about these two developments. The first letter to Hughes, copy to Martin, was signed by Marthenke, dated June 24, 1946, and read: The Union has been informed that your Company intends to grant the employees of its Clarksville, Tennessee, plant a week's vacation with pay in July, 1946; and has instituted a piece work system of payment in that plant recently. In view of these circumstances, will you kindly furnish this office with the below information : 1. The details of the Company's 1946 vacation plan ; such as length of vacation, time of vacation, eligibility rules, amount of vacation pay. 2. The details of the piece work systems of payment recently instituted in the Clarksville, Tenuesee, plant of the Company; including list of operations put on piece work ; piece work prices for these operations, basis upon which system was set up, daily production required and amount to be earned if production requirements are met and amount to be earned if such production requirements are exceeded. Please advise also, what, if any, are the hourly guaranteed rates under the system. 3. If any adjustments have been made in the rates of time workers, please advise us in detail concerning such adjustments. Thanking you for your prompt cooperation in the above requests, I am, Having received no answer to the first letter, Marthenke, on July 30, 1946, again write Hughes (copy to Martin) quoting the first letter in full, stating that no answer had been received thereto, and requesting a reply furnishing the information asked for in the first letter. This second letter also went unanswered.83 After the Union sent the above two letters, to which it never received answers, there were no further communications or conferences between the Respondent and the Union. It appears that the last meeting of the Union among the Respondent's employees was conducted in Clarksville by Blair about the last of June 1946, when approximately 50 employees were present. 81 Hughes had also testified that he had instructed Martin to ask the Union to give him 30 days more time. Bz The engineer , who was associated with a Washington , D. C., firm , had tried on several previous occasions to persuade the Respondent to set up a piece -work system. In the undersigned 's opinion , the evidence does not warrant finding that the Respondent had arranged with that engineer to install a piece-work system until after the events in the latter part of May , above discussed , had transpired. 83 It should be noted that neither of the letters requested a meeting with the Respondent. It should also be noted that the Respondent had not questioned the Union 's majority. In fact, the Respondent's brief states that it "would have continued to have honored such certification had not the Union broken off negotiations late in May 1946." MASON & HUGHES, INC. 889 The testimony of Hughes indicates that there has been an extensive turn- over among the Respondent 's Clarksville employees since the Board's election was conducted on February 23, 1944. For instance , of the employees at the time of the election ( there were approximately 112 eligible voters ), only 32 remained on the last pay roll for May 1946. Again, of the 87 employees on the pay roll for August 1, 1948, only 23 had also been on the pay roll of February 23, 1944. The total turn-over at the Clarksville plant from January 1 , 1944, to August 31, 1948, has been 955. However , so far as the record indicates, the Respondent did not question the Union 's status as representative of its Clarks- ville employees until early in October 1947, when Martin informed a field ex- aminer of the Board that the certification was no longer valid because of the time which had elapsed. B. Conclusions as to the refusal to bargain 1. The appropriate unit The complaint alleged that the appropriate unit consisted of all production and maintenance employees of the Respondent at its Clarksville plant, "exclud- ing executives, clerical employees, all guards, all supervisors and professional employees, as defined in the Amended Act." The unit for which the Board certified the Union on March 2, 1944, was defined as all production and main- tenance employees of the Respondent at its Clarksville plant, "excluding execu- tives, clerical and all supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action." The Respondent contends that there is a variance between the.unit alleged in the complaint and that for which the Board certified the Union. From the preceding paragraph, it is obvious that there are variations, in the phraseology used in describing the unit, between the complaint and the certification. The General Counsel contends, however, that the variations made by the allegations of the complaint are not material or prejudicial, as they merely exclude guards and professional employees and redefine supervisors by reference to the definition thereof in the amended Act, in order to conform the unit to the amended Act. It has been found above that the unit for which the Union was recognized varied in phraseology from that set out in the certification, but that the classes of employees for which recognition was extended were the same as those covered in the certification. The evidence in the instant matter does not show that the Respondent has any classes of employees whose positions, as to inclusion or ex- elusion, would be affected by redefining the unit in terms of the amended Act, as has been done in the complaint. Particularly under these circumstances, there is no merit in the Respondent's objection to conforming the unit definition to the amended A.ct.85 Accordingly, the undersigned finds that the above stated. unit alleged in the complaint constitutes a unit appropriate for the purposes of collective bargaining, wthin the meaning of Section 9 (b) of the Act and the amended Act. The General Counsel's claim as to the Union's continuing status as repre- sentative rests upon the Board's certification of March 2, 1944. Whether, under the circumstances of this case, that certification continues in effect will be con- sidered after the discussion of the refusal to bargain. 84 See footnote 33, above. 88 Matter of Dixie Manufacturing Company, Inc., 79 N. L. R. B . 645; Matter of Piedmont Cotton Mills, 79 N. L. R. B. 1218. 890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The refusal to bargain The Respondent contends , in essence, that what transpired before May 1946 is not properly before the undersigned for consideration as evidence of refusal to bargain; that the Respondent, in any event, bargained with the Union over a long period of time; that the Union broke off negotiations and filed a charge in May 1946; and that the Union's certification has been honored for a reasonable time and no longer obligates the Respondent to bargain with the Union. In broad outline, the General Counsel contends primarily.that the Respondent, by its course of conduct, beginning with delaying tactics after the election in February 1944, continuing through resort to the appeals procedures of the War Labor Board, and culminating in outright rejection of the Union in mid-1946, has demonstrated bad faith in bargaining throughout the long negotiations detailed in the preceding section of this report. The General Counsel also contends that the Respondent, in any event, refused to bargain after the meeting of May 20, 1946. Numerous items were specified by the General Counsel in oral argument dur- ing which he was, in his own phrase, merely "hitting the highlights" in support of his course of conduct theory. All of those factors, and at least as many more not mentioned by the General Counsel, have been carefully considered by the undersigned in evaluating all of the elements in the total complex of events sum- marized hereinabove. At a number of points in the chronology, it has already been stated that, contrary to the General Counsel's contentions, the undersigned does not believe that certain actions of the Respondent show refusal to bargain. No purpose would be served by repeating those findings here or by specifying the undersigned's various reasons for not finding numerous other actions to constitute evidence of bad faith bargaining. The undersigned will rather set out first his general views on certain broad phases of the case and will then explain what specific actions of the Respondent's he believes do constitute re- fusal to bargain. In general, the record as a whole does not warrant finding refusal to bargain based on an entire course of conduct theory during the full period beginning with February 1944. In the first place, in the undersigned' s opinion it must be assumed, in analyzing the issues herein, that the Respondent was operating its somewhat antiquated Clarksville plant on a narrow margin of profit and with high labor costs, and that the Respondent' s financial situation 98 provides a reasonable explanation of its resistance from the inception of negotiations to proposals which would have increased its costs. This is not to say that the Union could not reasonably have entertained genuine doubt as to whether the Respondent's financial situation was actually as stringent as it professed, especially since the Respondent was not willing to substantiate its contention on this matter, although the Union asked that it do so. However, the General Counsel does not specifically contend that the Respondent's repeated refusals to furnish the Union evidence as to its financial condition constituted refusal to bargain ; the undersigned knows of no applicable precedent on this point ; the Respondent's ability to meet the Union's demands evidently was not an issue upon which the War Labor Board passed; and Hughes eventually did show Dispensa some figures on labor costs during the meeting of May 20, 1946. Under the complex factors in this case, the undersigned deems it unnecessary to pass upon the question of whether the Respondent's refusal on various occasions to 86 Hughes' cursory testimony as to the Respondent's debts and financial difficulties is without contradiction in the evidence. MASON & HUGHES, INC. 891 attempt to demonstrate to the Union that it was financially unable to meet the Union's demands constitutes evidence of bad faith. Again, while the matter is not free from doubt, the undersigned is not satis- fied that the numerous delays in arranging meetings, when considered in their total setting, establish that the Respondent was acting in bad faith to avoid reaching a contract with the Union. Further, the undersigned is not convinced, upon detailed study of the voluminous evidence pertaining thereto, that the "General Counsel's repeated contention that the Respondent resorted to appeals procedures of the W. L. B., in order to hinder and delay. bargaining, is supported by the evidence. In addition, contrary to the contention of the General Counsel, the undersigned does not find that the Respondent refused to bargain by re- fusing to sign a partial agreement, particularly on April 24, 1945, since the Respondent had taken the position from the inception of negotiations that it -would not enter into a partial agreement 8" In short, from his study of the sequence of events set out hereinabove, the undersigned is persuaded that the parties, from the inception of their bargaining relationship, were confronted with numerous difficult problems upon several of which they disagreed sharply and honestly, and that true collective bargaining, freed from the shadow of War Labor Board procedure, did not fully enter the picture until the meeting of November 5, 1945.88 In any event, it is not contended that it is a function of the National Labor Relations Board to enforce directive orders of the National War Labor Board, and the undersigned is not persuaded that the Respondent's failure to comply with W. L. B. directives, under the cir- cumstances revealed by this record, establishes bad faith in bargaining, within the meaning of the Act and the amended Act. Having examined in broad outline several phases of the picture which do not appear to establish refusal to bargain, we turn now to those actions of the Respondent which do, in the undersigned's opinion and for reasons in many respects similar to those advanced by the General Counsel, fall short of the requirements of good faith bargaining. The first of these is the Respondent's unilateral action about August 24, 1944, in posting the Shop Rules set out in Section III, A, 6, above. Even assuming that approximately those rules had been in effect for some years, the undersigned does not believe that any such rules had previously been posted, at least not for a substantial period of time.89 The final two paragraphs in the posted rules, setting out rules governing discharges, made no mention of the fact that the Respondent, in its meetings with the Union in March 1944, had agreed, pending the signing of an agreement, to discuss grievances with the Union's grievance committee. Those paragraphs also completely ignored the fact that, at the Panel hearing on June 10, 1944, the Respondent and the Union had agreed to a contract provision as to discharges, a provision which the Panel's report of July 84 Cf. Matter of Salant, Inc., 66 N. L. R. B. 24, 47. 88 At certain points, Marthenke's testimony appears to indicate that, during the life of the War Labor Board , the Union was perhaps as interested in getting its disputes with the Respondent before the W. L. B. for directive orders as it was in bargaining. 89 Hughes' testimony as to the posting of those rules was unconvincing . He testified that he could not recall the reason for posting them "any more than there was some discussion . . . that I ought to have my shop rules written and not like we had always operated." Thereafter, when asked if the rules in question were his first written and posted rules, Hughes answered, "No. It had been in the plant for years and it had rotted off the board." In contrast, the field examiner's above summarized letter of October 27, 1944, indicates that Martin had not claimed in 1944 that the rules had ever previously been reduced'to writing or posted. 892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 29, 1944, had recommended be incorporated and which had not thereafter been appealed. That provision stated : The Employer shall have the right to discharge his employees for just cause. The Employer shall, however, provide the Union with a written statement at the time notice of discharge is given the employees, indicating the reasons for the discharge. Although the Shop Rules apparently were taken down sometime after the Union had vigorously protested their posting,90 it is clear that those rules, par- ticularly as they pertained to the highly significant subject of discharges, con- stituted unilateral action on matters properly the subject of collective bargaining, and that by taking such unilateral action under the then existing posture of bargaining, the Respondent evidenced lack of good faith in bargaining.9' We next turn to the meeting of April 24, 1945, shortly after the National Board's Directive Order in the first W. L. B. case.92 Everything considered, the undersigned believes that the Respondent failed to bargain in good faith at this crucial juncture in two respects 93 In the first place, among the provisions in the Union's proposed contract which the Respondent refused to accept that day were those providing for the check-off and for overtime after 8 hours in any one day on civilian work. The Respondent, by flatly refusing to agree to those two. provisions to which it previously had expressed no objection when, on August 14, 1944, following the receipt of the Panel's report, it had offered to sign an agree- ment if three items other than those two were eliminated,94 clearly stiffened its position at a late stage in bargaining relations. In the second place, the Re- spondent's failure to provide the Union with a counterproposal, as requested, prior to the April 24 meeting, coupled with the Respondent's failure, when asked to do so at the April 24 meeting, to give any specific indication of its position on any of the numerous remaining provisions in the Union's proposed agreement to which it had not specifically objected at that meeting,95 was tantamount to refusal to spell out its position at a time when good faith bargaining required a clearly defined offer on the Respondent's part. The undersigned therefore finds that, in the foregoing two respects in connection with the April 24 meeting, the Respondent refused to bargain in good faith. Except for a single matter, the Respondent's failure to grant vacations for- 1945 at the conference on July 23, the General Counsel points to no specific incident during the period from April 24 until December 5, 1945, although stating that there were "some other matters." Although several interesting questions are involved, the undersigned is not persuaded that any of the intervening matters, including the July 23 refusal of 1945 vacations, constituted bad faith bargaining, especially in view of the new and increased demands, leading to the 5° Marthenke testified that he understood that the rules were taken down, although it is not clear when that was done. It is also not clear how long the rules had been posted before the Union telegraphed its protest of August 24. 91 Matter of Tower Hosiery Mill, Inc., 81N. L. R. B. 658. ez For the details as to that meeting see Section III, A, 8, above. 99 The undersigned does not believe that an analysis of this meeting, in the light of all of the preceding developments, warrants finding refusal to bargain on several other grounds advanced by the General Counsel. One of these, refusal to sign a partial agreement, has been mentioned hereinabove. 94 The only items which the Respondent sought to eliminate on August 14 were retroactive pay, paid vacations, and paid rest periods. 95 The undersigned -considers the Respondent's subsequent failure to detail the respects in which it differed with the Union's minutes of the April 24 meeting as a part of the Respondent's failure to specify its position on the issues. MASON & HUGHES, INC. 893 second W. L. B. case, which the Union had injected into the picture prior to the July 23 meeting by its letter of July 5, 1945se It was not until the meeting on November 5, when the V. L. B. was no longer in the picture, that bargaining ryas resumed on the basis of the Union's contract proposals originally submitted on April 20, 1945. Then on November 15, with the Union's demands for retroactive pay apparently abandoned, the conference con- sidered briefly the Union's piece-work proposition covering the problem which had been at the very heart of the difficulty confronting the Respondent and the Union from the inception of negotiations. Thus, with preliminary negotiations on November-5, followed, by an opportunity for the Respondent to study the Union's piece-work proposition presented on November 15; the parties should have been in a position to move forward at the meeting on December 5. On December 5, however, the Respondent had no counterproposal to the Union's piece-work proposition and was unwilling to commit itself on any wage revisions until about March 1, 1946. The Respondent further would not sign an agree- ment continuing the then existing wage scale and hours, subject to wages being negotiated again about March 1, 1946. The Respondent, insisting that to do so would be entering into an incomplete agreement, wanted to freeze negotiations until about March 1. The undersigned believes, everything considered, that the Respondent's position in this respect was erroneous and fell short of its obliga- tion to bargain in good faith. Although other matters had not yet all been re- solved, it was the Respondent' s refusal to agree to the then existing wages and hours, subject to reopening later, which blocked further negotiations at that time. As Marthenke pointed out at the December 5 conference, the Respondent's po- sition deprived the employees of contractual protection. It should be noted that in the period which followed, on at least three occasions, the Union objected to -discharges, but was without recourse to any arbitration procedure, although a clause in the proposed agreement providing for arbitration had been accepted on November 5. Thus the Union , at a time when it was making every reasonable ,effort to reach an agreement, was forestalled in bargaining by the Respondent's unwarranted position that relations should be frozen for several months because it was unwilling to sign an agreement incorporating the then existing conditions, with a reopening clause on the piece-work matter which the Respondent was not willing to consider until about March 1, 1946. In any event, it was May 20, 1946, some 51/2 months after the December 5 meet- ing, before the Union's piece-work proposition was finally presented to Hughes by the Union' s engineer. However, on May 22, instead of receiving word that the Respondent was ready to go ahead with the installation of a piece-work program, the Union was informed that the Respondent desired more time. Evi- dently becoming convinced that it was getting a "run around," sz the Union filed charges with the Board. Whether the Union was at that point correct in its belief as to the Respondent's motive is not controlling.. On Hughes' own testi- mony, it is clear that when Hughes learned of the filing of the charges, he con- sidered relations with the Union terminated, and said "goodbye" in his own mind to the Union. Thereafter he proceeded to ignore the Union in relation to mat- ters about which the Union had been bargaining for well over 2 years. A piece- work plan was introduced in the plant about June 20, 1946, and a week's va- cation with pay was given shortly thereafter, during the first week in July, both without any further consultation with the Union. The Union's letters of ae See Section III, A, 9, above.. 9' It cannot be said, on this record, that such a belief could not reasonably have been held. 894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD June 24 and July 30, 1946, concerning those two matters, were both ignored. Whatever provocation Hughes may honestly have believed that he had for his actions, ignoring the Union while fundamentally changing working conditions constituted refusal to bargain per se on June 20, 1946, and thereafter 98 Nor can it be held that, by filing charges, the Union had broken off negotiations with the Respondent and had thereby relieved the Respondent of further obligation to deal with it.0B 3. The continuing validity of 'the Board's certification of the Union It should be noted at the outset that it was well over a year after the culmi- nation, in June and July 1946, of the refusal to bargain that the Respondent first raised any question as to Union's majority on the basis of the time which had elapsed since the issuance of the certification. It should also be noted that the record does not contain affirmative proof that the Union has lost its majority 100 or that a petition to decertify the Union has been filed by the employees. Upon consideration of the facts in this case in the light of applicable precedent, the undersigned is of the opinion that the Board's certification should be given full effect. The Respondent first refused to bargain about August 24, 1944, less than 6 months after the Board's certification had issued. It next refused to bargain on April 24, 1945, less than 14 months after the certification, and again refused to bargain on December 5, 1945. Moreover, the undersigned's position would be the same, even if no refusal to bargain were to be found until the Re- spondent's unilateral actions of June and July 1946.101 A major problem con- fronting the Respondent and the Union was the institution of a piece-work system, so that wages could be adjusted upward. The Respondent was unwilling to institute such a system iTntil it returned to the production of civilian goods ; this did not take place until June 1946. Hence, even if the Respondent's failure to bargain prior to that date were excused, it is evident that, in order to endow the certification with longevity sufficient to accomplish its essential purpose, bringing about a contract binding upon the parties on essential issues, the rea- sonable period of time, under the circumstances of this case, with which the cer- tification must be endowed continued at least until the piece-work issue could squarely be joined.101 Moreover, a certification is valid until declared invalid by the court or until it is rescinded or succeeded by another certification 103 It should-be noted that under the Allis Chalmers doctrine.10} the Board has con- sistently taken the position that a union will not be penalized for respecting its no-strike pledge and utilizing War Labor Board procedures. In the instant matter, War Labor Board procedures overshadowed free collective bargaining 03 Matter of Tomlinson of High Point, Inc., 74 N. L. R . B. 681; Matter of Tower Hosiery Mill, Inc., 81 N. L. R. B. 658. 99 Matter of Tampa Electric Company, 56 N. L. It. B. 1270, 1274; ef. Matter of Na-Mac Products Corporation, 70 N. L. It. B. 298. 100 Proof of large labor turn-over is not such proof . Matter of Cheney California Lumber Company, 62 N. L. R. B. 1208. 101 In other words, even if the Respondent's earlier actions were to be considered too separated in point of time and too sporadic to constitute "a course of conduct " sufficiently connected to date the refusal to bargain back to August 1944, the undersigned still would hold the certification to be valid. 100 N. L. R. B. v. Appalachian Electric Power Company, 140 F. ( 2d) 217, 221. 103 N. L. R. B. V. May Department Stores Co ., 146 F. (2d) 66; Valley Mold & Iron Corp. v, N. L. R. B., 116 F. (2d) 760, cert. denied, 313 U. S. 590. 104 Matter of Allis -Chalmers Manufacturing Co., 50 N. L, R. B. 306; Matter of Taylor Forge & Pipe Works, 58 N. L. It. B. 1375, 1378. MASON & HUGHES, INC. 895 until the fall of 1946, although the parties were not actually before the Board during the entire period. In view of the failure of the Respondent to raise any question as to the Union's status as the representative of its employees during the protracted period of negotiations,"' and in view of the Board's policy of treating a certification as valid until rescinded or superseded, the undersigned finds no merit in the Respondent's contention that the certification is no longer valid." 4. Concluding findings From all of the foregoing, the undersigned concludes and finds that on March 2, 1944, and at all times thereafter, the Union was, and now is, by virtue of the Board's certification, the duly designated representative of a majority of the Respondent's employees in the above found unit, which unit is appropriate for the purposes of collective bargaining with respect to rates of pay, hours of employment, or other conditions of employment. The undersigned further finds that, by a course of conduct beginning about August 24, 1944, and continuing thereafter, and more specifically by unilateral action in June and July 1946, the Respondent has refused to bargain collectively in good faith with the Union as the exclusive representative of the employees in an appropriate unit as required by the Act and the amended Act, and has thereby interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act and the amended Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth in Section III, above, occurring in connection with the operations of the Respondent set forth in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and such of them as have been found to be unfair labor practices tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in and is engaging in unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act and the Amended Act. Having found that the Respondent has refused to bargain collectively with the Union, it will be recommended that the Respondent, upon request, bargain with the Union and embody in a signed agreement any understanding reached. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the undersigned makes the following : . CONCLUSIONS OF LAW 1. Amalgamated Clothing Workers of America, affiliated with the Congress of Industrial Organizations, is a labor organization, within the meaning of Section 2 (5) of the Act and the Amended Act. 106 Noteworthy is the Respondent's statement in its brief that it "would have continued to have honored such certification had not the Union broken oft negotiations late in May of 1946." 106 Matter of Piedmont Cotton Mills, 79 N. L. R. B. 1218. Any loss of majority after June 20, 1946, would not be material, since by that date, on any theory of the case, the Respondent had engaged in unfair labor practices. 896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. All production and maintenance employees of the Respondent at its Clarks- ville, Tennessee, plant, excluding executives, clerical employees, all guards, all supervisors and professional employees, as defined in the amended Act, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act and the amended Act. 3. Amalgamated Clothing Workers of America, affiliated with the Congress of Industrial Organizations, was on. March 2, 1944, and at all times thereafter has been the exclusive representative of-all of the employees in the above appropriate unit, within the meaning of Section 9 (a) of the Act and the amended Act. 4. By refusing about August 24, 1944, and at various times thereafter, and particularly about June 20, 1946, and at all times thereafter, to bargain collec- tively with Amalgamated Clothing Workers of America, affiliated with the Congress of Industrial Organizations, as the exclusive representative of all of its employees in the aforesaid appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (5) of the Act and Section 8 (a) (5) of the amended Act. 5. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act and the Amended Act, the Respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act and Section 8 (a) (1) of the Amended Act. 6. The aforesaid unfair labor practices are unfair labor practices- affecting commerce, within the meaning of Section 2 (6) and (7) of the Act and the amended Act. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, the undersigned recommends that the Respondent, Mason & Hughes, Inc., Clarksville, Tennessee, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with Amalgamated Clothing Workers of America, affiliated with the Congress of Industrial Organizations, as the exclusive representative of all of its employees in the above-described appropriate unit (b) In any other manner interfering with the efforts of Amalgamated Clothing Workers of America, affiliated with the Congress of Industrial Organizations, to negotiate for or to represent the employees in the aforesaid appropriate unit, as their exclusive bargaining agent. 2. Take the following affirmative action, which the undersigned finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with Amalgamated Clothing Workers of America, affiliated with the Congress of Industrial Organizations, of the exclusive representative of all of its employees in the aforesaid appropriate unit, with respect to grievances, labor disputes, wages, rates of pay, hours of employ- ment, or other terms or conditions of employment, and, if an understanding is reached, embody. the understanding in a signed agreement ; (b) Post at its Clarksville, Tennessee, plant, copies of the notice attached hereto and marked "Appendix A." Copies of said notice, to be furnished by the Regional Director of the Tenth Region, shall, after being duly executed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and maintained by it for a period of least sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to MASON & HUGHES, INC. 897 employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced, or covered by any other material; (c) Notify the Regional Director for the Tenth Region in writing, within twenty (20) days from the date of the receipt of this Intermediate Report, what steps the Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that the National Labor Relations Board issue an Order requiring the Respondent to take the action aforesaid, unless the Re- spondent notifies said Regional Director in writing, on or before twenty (20) days from the date of the receipt-of this Intermediate Report, that it will comply with the aforegoing recommendations. As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board-Series 5, as amended August 18, 1948, any party may, within twenty (20) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file with the Board, Washington 25, D. C., an original and six copies of a statement: in writing setting forth such exceptions to the Intermediate Report' and Recom- mended Order or to any other part of the record or proceeding (including rulings: upon all motions or objections) as he relies upon, together with the original and six copies of a brief in support thereof ; and any party may, within the same period, file an original and six copies of a brief in support of the Intermediate Report and Recommended Order. Immediately upon the filing of such statement of exceptions and/or briefs, the party filing the same shall serve a copy thereof upon each of the other parties. Statements of exceptions and briefs shall desig- nate by precise citation the portions of the record relied upon and shall be legibly printed or mimeographed and if mimeographed shall be double spaced. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.85. As further provided in said Section 203.46, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. In the event no Statement of Exceptions is filed as provided by the aforesaid Rules and Regulations, the findings, conclusions, recommendations, and recom- mended order herein contained shall, as provided in Section 203.48 of said Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. Dated at Washington, D..C., this 26th day of May 1949. EARL S. BELLMAN, Trial Examiner. APPENDIX A NOTICE TO ALI, EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT in any manner interfering with the efforts of AMALGAMATED CLOTHING WORKERS OF AMERICA, affiliated with the CONGRESS OF INDUSTRIAL ORGANIZATIONS, to negotiate for or represent the employees in the bargaining: unit described below. WE WILL BARGAIN collectively, upon request, with the above-named union as the exclusive representative of all employees in the bargaining unit 898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD described below with respect to rates of pay , wages, hours of employment, grievances, and all other conditions of employment , and if an understanding be reached , embody such understanding in a signed agreement . The bargain- ing unit is : All production and maintenance employees at the Clarksville plant of the undersigned employer , excluding executives , clerical employees , all guards, all supervisors and professional employees , as defined in the National Labor Relations Act. MASON & HUGHES, INC., Employer. Dated------------------------ By----------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered , defaced, or covered by any other material.