West Boylston Manufacturing Co.

In the Matter Of `VEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA and TEXTILE WORKERS UNION OF AMERICA, C. I. O. Case No. 15-CA-26.-Decided December 16,1919 DECISION AND ORDER . On February 15, 1949, Trial Examiner Merritt A. Vickery issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other alleged unfair labor practices and recommended that the complaint be dismissed with respect to such allegations. Thereafter, the Respondent filed exceptions to the In- termediate Report and a supporting brief. The Union filed a brief in support of the Intermediate Report.' The Board has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed.2 The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, insofar as they are consistent with the findings, conclusions, and order hereinbelow set forth.3 I As the record , the exceptions , and the briefs adequately present the issues and positions of the parties, the Respondent's request for oral argument is denied. 8 Ave find no merit in the Respondent' s wholly unsupported charges against the Trial Examiner of bias and prejudice and misconduct in attempting to exert "his influence and pressure" on the parties "to adjust and settle the case" and "in reviewing with and making available to Counsel for the charging Union information as to the Intermediate Report" before its official release . We base our findings and order in this ease on our own independent appraisal of all the relevant evidence. 3 Because no exceptions were taken to the Trial Examiner 's findings that certain state- ments made by the Respondent 's supervisors and contained in letters from officials were not coercive within the meaning of Section 8 (a) (1) of the Act, we shall accept his find- ings. In so doing, however , we do not pass on the correctness of these findings or the underlying reasons. Nor do we subscribe to the Trial Examiner's comments in his report which seem to indicate that Section 8 (c), as construed by the Board, precludes finding implied threats to be violative of Section 8 (a) (1). 87 NLRB No. 132. 808 WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 809 1. We agree with the Trial Examiner that the Respondent, in viola- tion of Section 8 (a) (5) and (1) of the Act, refused to bargain col- lectively with the Union as the statutory representative of the Re- spondent's employees in an appropriate unit. As fully discussed in the Intermediate Report, the Respondent's entire course of dealings with the Union during all material times 4 was marked by bad faith and an utter disregard for its bargaining obligations under the Act. This attitude was reflected, among other things, (a) in the Respond- ent's dilatory and evasive tactics in resisting the Union's efforts to negotiate a new agreement and for the return to work of the laid-off employees on resumption of operations following the plant shut-down; (b) in its unfulfilled promises to notify the Union sufficiently in ad- vance of the reopening of the plant for the purpose of negotiating a new agreement, to recall the laid-off employees in accordance with seniority practices prevailing at the time of the lay-off, to renew the then expiring agreement or sign an extension agreement pending the negotiation of a new contract, and to refrain from taking steps to evict employees from company houses; 5 (c) in its unilateral action in recalling laid-off employees ostensibly on the basis of merit rating, without consulting the Union, despite prior assurances to observe seniority, and terminating the employment of nonrecalled employees; (d) in its repeated refusals to meet with the Union to discuss the list of nonrecalled employees which the Union submitted pursuant to the parties' understanding at the November 6, 1947, meeting, and to work out further procedures for reviewing individual cases; 6' and (e) in its flat rejection of the Union's request on February 3, 1948, to resume bargaining, for the asserted reason that the Union lost its majority status. Plainly, this less-than-candid conduct of the Respondent- reveals a contempt for the bargaining process and a fixed determination to avoid reaching agreement with the Union, which it is the purpose of the Act to promote. In these circumstances, to say, as the Respond- ent argues, that the Respondent nonetheless performed its statutory obligation to bargain because it conferred with the Union concerning the resumption of operations and a new agreement, is to confuse pre- ' We find that the Respondent's unlawful refusal to bargain began at least on July 18, 1947, when Labor Counsel Constangy advised the Union's State Director Ryan that the Respondent would either renew the then existing contract or sign an Interim extension agreement, that the Respondent would recognize seniority as before, and that the provisions of the contract would prevail. As subsequent events prove, the Respondent never intended to fulfill the assurances thus given to the Union. 6 We, like the Trial Examiner , rely on the assurances which the Respondent 's labor counsel, Constangy, gave the Union in August 1947. 9 Instead , when the Respondent thereafter established a second shift on which all the listed employees could have been hired, it again unilaterally recalled laid -off employees, only 34 of whom were on the list." 810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tence at bargaining with that good faith negotiation which the Act requires and which was clearly wanting in this case. The Respondent also attempts to justify its failure to discuss the list of nonrecalled employees with the Union on the ground that the Union neglected to submit a counterproposal to the Respondent's pro- posal concerning the mechanics for handling the list. Similarly, the Respondent contends, negotiations for a new contract were deadlocked because of the Union's failure to submit a counterproposed seniority clause. Apart from the fact that the nature of the Respondent's pro- posals in these respects casts considerable doubt on its good faith that it was actually seeking a resolution of the controversy rather than an endorsement of its previous unilateral action, the impasse, if any, was at most of a temporary character. It is undisputed that, although the Union sought further meetings with the Respondent after the Novem- ber 6 conference to discuss the matter of recall and a new agreement, the Respondent turned down these requests. Moreover, tentative agreements for reviewing the list in the initial stages had already been reached at the November 6 meeting,? and there is no evidence that the Respondent refused to proceed with discussions because of the Union's alleged failure to submit counterproposals. Nor is there any evidence that the counterproposals were a condition precedent to further bar- gaining. Indeed, the record does not disclose that the parties agreed that the Union, which had previously submitted its proposed contract, was nevertheless required to submit additional counterproposals. Equally untenable is the Respondent's defense for refusing to honor the Union's request to resume negotiations of February 3, 1948, that the Union lost its majority status by unlawfully advancing the inter- ests of the nonrecalled employees to the detriment of the interests of the recalled employees. It is clear,-however, that the Union's position with respect to seniority was motivated by the interests of the em- ployee group as a whole and represented a consistent policy from the inception of its bargaining relations with the Respondent. At any rate, we find that the Respondent never entertained, nor could it rea- sonably entertain, any bona fide doubts of the Union's majority status. Significantly, the Respondent admits that about 73 percent of the recalled employees were union members, and there is no evidence that T The record discloses that the parties agreed at the November 6 meeting that the Union would submit a list of aggrieved employees who claimed reemployment rights ; the Re- spondent would check the list and confer with the Union's shop committee ; differences would he reviewed by Plant Manager Cook and the Union 's State Director Ryan ; and ht the event of disagreement between Cook and Ryan , the parties would try to develop fur- ther procedure . In addition , it was agreed that the Respondent would submit proposed mechanics for the handling of the list , and A proposed seniority clause to he included in a new contract. The record, however , does not support the Trial Examiner 's finding that the parties also agreed , to postpone negotiations for a new contract until the disposition of the list. WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 811 any of them withdrew from the Union at the time of the latter's bar- gaining demands. Indeed, the Respondent continued to recognize the Union until at least December 1947, and, as recently as November 6, suggested to the Union that it join the Respondent in signing a wage raise stipulation, which was to be posted in the plant, in order to con- tradict the alleged statements of supervisors to employees that the Union was no longer "in the picture." Moreover, even assuming that the Union did suffer a loss of majority at the time of the Respond- ent's outright refusal to recognize the Union,11 such loss of majority, we find, would manifestly be attributable to the Respondent's previous unlawful refusals to bargain and would not be available to it as a defense to the charges herein." Quite apart from the foregoing, we find that the Respondent's conceded unilateral action in recalling the laid-off employees on the alleged basis of merit rating, without consulting the Union and in disregard of its prior assurances to observe seniority, constitutes as a matter of law a violation of Section 8 (a) (5) of the Act. It is too well settled to require more than simple statement that an employer who takes unilateral action, without conferring with its employees' exclusive bargaining representative, with respect to matters which are proper subjects for collective bargaining, is derelict in his statutory obligation to bargain. Nor, contrary to the Respondent's suggestions, is the performance of this duty excused by the mere anticipation of the Union's opposition to the Employer's contemplated action. That the matter of recall and termination of employment of employees laid off as a consequence of a plant shut-down is a proper subject for col- lective bargaining, cannot be denied.1° Moreover, we find that the Respondent's unilateral action in ques- tion also constitutes an independent violation of Section 8 (a) (1). It is clear that the Respondent's conduct was calculated and necessarily tended to undermine the Union's prestige in the eyes of the employees and the Union's effectiveness as a bargaining representative. Espe- cially is this so where, as here, the nature of the Respondent's unilateral action was in complete disregard of its assurances to the Union- manifestly to be transmitted to the laid-off employees-that their seniority rights would be recognized when the plant reopened. We 8 Not only is such an assumption unsupported by the record, but also there is no evidence to rebut the presumption of continuing majority which attached to the Union's certifica- tion and its active representation of the Respondent's employees. Bethlehem Steel Com- pany, 73 NLRB 277. 279-280. 9 Franks Bros. Company v. N. L. R. B., 321 U. S. 702. 10 Cf. National Licorice Company v. N. L. If. B., 309 U. S. 350, 460 (discharges) ; In- land Steel Co. v. N. L. If. B., 170 F. 2d 247 (C. A. 7). cert. denied 336 U. S. 960 .(retirement and pension plans ) N. L. R. B. v. Allison & Co., 165 F. 2d 766, cert. denied 335 U. S. 814 (merit wage raise) : N. L. R. B v Westingh ouse Air Brake Company, 120 F. 2d 1004, 1006 (C. A. 3) (seniority and lay-off plans). 812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD find that by this conduct the Respondent interfered with and re- strained its employees in the exercise of their guaranteed rights to bargain collectively through the Union for their return to work, within the meaning of Section 8 (a) (1). 2. The Trial Examiner found that the Respondent, in violation of Section 8 (a) (3), discriminatorily adopted a method of selection of employees for recall purposes ""which ignored customary seniority rights and did this as part of a plan to weaken and destroy the Union." We do not agree that the preponderance of the evidence in the record sustains this finding of discrimination. Unlike the Trial Examiner, we are unable to infer on this record, from the Respondent's refusal to honor its commitments to observe seniority in recalling laid-off employees or from its disregard of the bargaining rights of its em- ployees and their representative, a plan to weaken or destroy the Union or that the Respondent was otherwise motivated by antiunion considerations in adopting the so-called merit rating system. The Respondent's conduct, although doubtlessly not beyond suspicion, is also consistent with the view that the Respondent was prompted by a desire to have a free hand in selecting the personnel for the reduced number of jobs available when it resumed operations. Indeed, as the Trial Examiner found, the proportion of union employees rehired approximated the proportion employed before the shut-down. Al- though the Respondent's conduct, as we have found above, demon- strated bad faith, we are unable to conclude on the evidence before us that it was also discriminatory. We shall accordingly dismiss the complaint in this respect. The Remedy Having found that the Respondent has engaged in unfair labor practices, we shall order it to cease and desist therefrom and take cer- tain affirmative action designed to effectuate the policies of the Act. We have found that the Respondent in its dealings with the Union showed disregard for its bargaining obligations and commitments to observe prevailing seniority practices in recalling laid-off employees. .Instead, the Respondent, without consulting the Union, unilaterally recalled a number of laid-off employees on the alleged basis of merit ratings which completely ignored seniority as a factor in determining eligibility 1' In this manner not only did the Respondent undermine the Union and render it ineffective as a bargaining representative, but also unlawfully interfered with its employees' right to bargain collectively regarding their return to work on the resumption of op- 11 The record indicates that the Respondent also hired several employees who had neaer previously worked for it. WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 813 erations. Indeed, the Respondent, by unilaterally filling the available positions, after it reopened the plant, contrary to its assurances, re- moved the subject of reemployment of nonrecalled employees from the field of collective bargaining, or at any rate has substantially changed the basis upon which such negotiations could proceed. Man- if estly, it would not be sufficient to purge the unfair labor practices simply to order the Respondent to bargain in the future with the Union concerning the reemployment of the nonrecalled laid-off employees. Under these circumstances, in order to effectuate the policies of the Act and to prevent the Respondent from benefiting from its unfair labor-practices, we shall direct the Respondent to restore, as far as possible, the situation obtaining at the time of the initial refusal to 12 and which for all that appears, would have obtained had the Respondent fulfilled its statutory obligations. As an integral part of the Respondent's unlawful conduct was the complete nullification of the seniority rights of the laid-off employees, we shall order the Respondent to offer these employees full reinstatement on the basis of such rights. Certainly, it would not lie in the Respondent's mouth to deny that it intended this result, when it gave the Union the various assurances as to its following seniority. The Respondent has been operating (at least until. the date of the hearing in this case) with a% reduced staff necessitated by economic considerations. It also appears that the Respondent for legitimate reasons has discontinued certain departments and nnade changes III others. In these circumstances, the identity of employees entitled to reinstatement under seniority practices is not readily ascertainable. .We shall, therefore, direct the Respondent to restore to' the employ- ment rolls all employees who were laid off during the reduction in force which culminated in the plant shut-down on July 26, 1947; to select therefrom in accordance with seniority practices then prevailing, the employees entitled to be recalled to available jobs; and to offer full reinstatement to such employees without prejudice to their sen- iority or other rights and privileges, dismissing if necessary, persons now occupying them. In the event the Respondent fails to offer reinstatement as herein provided, it shall be liable to pay to each employee so entitled to reinstatement a sum of money equal to the amount he or she normally would have earned as wages during the 12 We have found above that the Respondent's unfair labor practices began at least on July I.S. 1947, before the expiration of its 1946--1947 contract with the Union , when its Labor Counsel Constangy assured the Union 's State Director Ryan that seniority as pro- vided in that contract would prevail in the recall of employees . The assurance that seniority would be followed was also repeated after the contract expired. 814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD period from 20 days after the date of this Order to the date of the offer of employment, less his or her net earnings during said period.13 As for those laid-off employees for whom no jobs in their former departments will be available because of insufficient seniority or be- cause the departments in which they formerly worked were discon- tintled or the operations therein were so materially changed that their jobs for all practical purposes are no longer in existence, we shall direct the Respondent to bargain in good faith with respect to their employment on other available jobs. . We expressly reserve the right to modify the back-pay and reinstate- ment provisions, if made necessary by a change of conditions since the hearing or in the future, and to make such supplements thereto as may hereafter, become necessary in order to define or clarify their application to a specific set of circumstances not now apparent. As the Respondent has also violated Section 8 (a) (5) and (1) of the Act, by refusing to bargain collectively with the Union with respect to rates of pay, wages, hours of employment, the recall of laid-off employees, and other conditions of employment, we shall order the Respondent, upon request, to bargain with the Union as the exclusive representative of its employees in the appropriate unit con- cerning these matters. In addition, we shall order the Respondent to cease and desist from engaging in the unlawful conduct found herein and from like and related conduct. 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, West Boylston Manufacturing -Company of Alabama, Boylston, Alabama, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with Textile Workers Union of America, C. I. 0., as the exclusive bargaining representative of all. of, its production and maintenance workers, other than seasonal village cleanup workers, at its Boylston plant, excluding office and clerical employees, guards, and supervisory employees as defined in the Act, with respect to the recall of laid-off employees, and rates of pay, wages, hours of employment, and other conditions of employment; 13 By "net earnings" Is meant earnings less expenses , such as for transportation, room, and board, incurred by an employee in connection with obtaining work- and working else- where, which would not have been incurred but for the Respondent's noncompliance with this Order and the consequent necessity of his seeking employment elsewhere. Cf. Crossett Lumber Company, 8 NLRB 440. Monies received for work performed uponFederal, state, county, municipal, or other work-relief projects shall be considered as earnings. Republic Steel Corporation v. N. L. R . B., 311 U. S. 7. WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 815 (b) Taking unilateral action with respect to the recall of laid-off employees without prior consultation and negotiation with the above- named union and from engaging in like or related conduct; (c) In any manner interfering with the efforts of the above-named union to bargain collectively. with it, as the exclusive representative of the Respondent's employees in the appropriate unit described above. 2. Take the following action which the Board finds will effectuate the policies of the Act : (a) Upon request bargain collectively with Textile Workers Union of America, C. I. 0., as the exclusive bargaining representative of its employees in the appropriate unit described above, with respect to rates of pay, wages , hours of employment, and other conditions of employment and embody any understanding reached in a signed agreement ; (b) Offer full reinstatement to available jobs to the employees who were laid off during the reduction of force which culminated in the plant shut-clown on July 26, 1947, in accordance with the seniority practices then prevailing, without prejudice to their seniority or other rights and privileges dismissing , if necessary, persons now occupying them, as provided in the remedy section of our Decision; (c) Make, whole the employees so determined to be entitled to re- instatement, for any loss of pay they may suffer by reason of the Re- spondent's refusal, if any, to reinstate them, by payment to each of them of a sum of money equal to the amount he or she normally would have earned .as wages during the period from 20 days after the date of this Order to the date of the offer of employment , less his or her net earnings during said period, as provided in the remedy section of our Decision ; (d) Bargain in good faith with the above-named union regarding the reinstatement to other available jobs of those laid-off employees who will not be entitled to reinstatement to, their former jobs because of insufficient seniority or because the departments in which they for- merly worked were discontinued or whose operations were so mate- rially changed that their jobs for all practical purposes are no longer in existence, as provided in the remedy section of our Decision; (e) Post at its plant at Boylston, Alabama, copies of the notice at- tached hereto as an Appendix.14 Copies of such notice, to be furnished by the Regional Director for the Fifteenth Region, shall, after being duly signed by the Respondent 's representative, be posted by the Re- 14 In the event this Order is enforced by decree of a United States Court of Appeals, there shall be inserted in the notice before the words "A DECISION AND ORDER" the words "A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING." 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material ; (f) Notify the Regional Director for the Fifteenth Region in writ- ing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTIJER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that the Respondent discriminated against the named employees and engaged in interference, restraint, and co- ercion, except as otherwise found above. MEMBER REYNOLDS took no part in the. consideration of the above 'Decision and Order. MEMBER HOUSTON, concurring in part and dissenting in part : I agree with the majority that "the Respondent's entire course of dealings with the Union during. all material times was marked by bad faith and an utter disregard for its bargaining obligations under the Act," in violation of Section 8 (a) (1). and (5) of the Act. I disagree, however, with their determination that the Respondent, by abandon- ing its seniority policy in recalling laid-off employees, did not also violate Section 8 (a) (3). I .dissent also from their failure to add back pay to their award of reinstatement to those employees who were deprived of employment as a direct result of the Respondent's aban- donment of the seniority system and of its other Luifaii labor practices. I am convinced from the entire record that the Respondent aban- doned the seniority system and committed the other violations of the Act as part and parcel of a deliberately conceived and carefully exe- cuted plan to destroy the Union. Such a plan is plainly evident in the repeated assurances from Respondent's representatives that the exist- ing contract would be renewed or extended, and that the seniority policy would be adhered to in recalling laid-off employees, conduct which served to forestall bargaining until after the contract had ex- pired, and in the Respondent's continuance of the same dilatory tac- tics thereafter, so as to further forestall bargaining while it recalled employees unilaterally in disregard of the seniority provisions of the expired contract, and in disregard of the Union's opposition, until the plant was reopened and remanned. The inevitable results of this program of the Respondent were (1) to discredit the Union by leading the members to believe that the Union's assurances were unreliable and that the Union was impotent as a bargaining representative, and WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 817 (2) to set off the recalled employees against those who would have been recalled if the seniority plan advocated by the Union had been fol- lowed. Having thus divided the union membership into camps of ap- parently opposing interests, the Respondent refused to bargain with the Union on the wholly unjustified ground that it no longer repre- sented a majority of the Respondent's employees. As the coup de grace, the Respondent then filed a petition seeking to have the Board determine who was the bargaining representative of its employees. In these circumstances, it is unrealistic to hold, as apparently do my colleagues, (1) that the Respondent's disregard of the seniority policy is consistent with the view that it was prompted by a desire to have a free hand in selecting personnel for the reduced number of jobs avail- able when it resumed operations, and (2) that the record does not clearly establish that the employees who were not selected for recall were discriminated against on the basis of their membership or lead- ership in the Union. Indeed, the record militates against any finding that the Respondent was prompted by a mere desire to obtain the best qualified personnel. It reveals that at least five of the Respondent's supervisors were telling various employees that when the plant reopened, there would be no seniority, no contract, and no union,15 during the very period when the Respondent's representatives were assuring the Union that they would negotiate a new contract or sign an interim agreement extending the existing contract; that laid-off employees would be recalled according to "seniority; that the terms of the expiring contract, which included a seniority provision, would be observed when operations after the shut- down were resumed; and that the Union had nothing to worry about in any of these respects. The record also shows that it was through such supervisors that the Respondent, at times, communicated labor policies to its employees." Similarly, notwithstanding the Respondent's assurances to the Union that no further eviction notices would be served upon occupants of company-owned houses, the Respondent continued to serve such notices. In fact, in November 1947, the Respondent served 22 such notices although, at that time, it appears that 71 of the approximately 250 houses in the mill village were vacant. is See the statements of Overseers V. E. Fisher and C . P. Tisdale, Master Mechanic Norman, and Assistant Overseers Fred Stickland and Beard , quoted by the Trial Examiner in the Intermediate Report. ,6 Thus, Treasurer Cook' s letter of February 5, 1948 , to Superintendent Farrell, to the effect that the Respondent did not believe the Union represented a majority of the em- ployees and that the Respondent would no longer recognize it, also stated that this posi- tion was to be communicated to the employees. . This letter was called to the attention of employee John Porter by Overseer Tisdale. 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD By this conduct, the Respondent was plainly deluding the Union. That it was doing so is underscored by the accuracy of the predictions of its supervisors as to the outcome of the dealings between the Union and.the Respondent. The only plausible conclusion, therefore, is that, in selecting its personnel by the so-called merit rating system instead of the promised seniority system, the Respondent was motivated by its intention to eliminate the Union. As to the second point relied upon by the majority, it is not neces- sary, to establish a violation of Section 8 (a) (3), to show that an employer's discrimination was designed to reach particular employees. Section 8 (a) (3) provides that "It shall be an unfair labor practice for an employer . . . by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization . . ." As the Respondent's motive in switching from a seniority to a merit-rating system was designed to discourage membership in the Union by strik- ing at the very heart of the Union, not at some individual members, I need not concern myself with the mathematical consequences of the Respondent's rehiring policy on union and nonunion members or union leaders. The tenure of employment of numerous employees was clearly affected as a result of the Respondent's illegal conduct, and I would therefore find, as did the Trial Examiner, that the conduct was discriminatory within the meaning of Section 8 (a) (3).17 In any event, whether the Respondent's conduct be deemed violative of Section 8 (a) (3) as well as 8 (a) (1) and (5) or, as found by the majority, only of Section 8 (a) (1) and (5), I would direct back pay, as well as reinstatement, for the employees whose employment was terminated as a result of the Respondent's illegal unilateral adoption of the merit rating system. Section 10 (c) of the Act gives the Board broad powers to remedy unfair labor practices. The award of back pay. is not limited by the Act to those cases in which the Board has found that Section 8 (a) (3) has been violated. As stated by the Supreme Court, ".. . in the nature of things Congress could not catalogue all the devices and stratagems for circumventing the policies of the Act. . . . The remedy of back pay is entrusted to the Board's discretion." 18 The Supreme Court has also stated that "The relief which the statute empowers the Board to grant is to be adapted to the situation which calls for redress." 19 The Respondent's wanton disregard for its obligations under the Act deprived some of its employees of their employment. Whether or 17 In this connection see American Rolling Mill Company, 43 NLRB 1020. 18 Phelps Dodge Corporation v. N. L. R. B., 313 U. S. 177, 194, 198. 10 N. L. R. B. v. Mackay Radio £ Telegraph Co., 304 U. S. 333. WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 819 not the Respondent's unfair labor practices be found violative of Section 8 (a) (3) as well as of Section 8 (a) (1) and (5), I am con- vinced that it would best effectuate the policy of the Act not only to reinstate these employees but also to direct the Respondent to make them whole for the losses they suffered as a direct consequence of the Respondent's unfair labor practices. APPENDIX. 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, as amended, we hereby notify our employees that : WE WILL bargain collectively, upon request, with TEXTILE WORKERS UNION OF AMERICA, C. I. 0., as the exclusive represent- ative of all our employees in the bargaining unit described be- low, with respect to rates of pay, wages, hours of employment, and other conditions of employment, and embody any understand- ing reached in a signed agreement. The bargaining unit is: All production and maintenance workers, other than sea- sonal village clean-up workers, at our Boylston plant, ex- eluding office and clerical employees, guards, and supervisory employees as defined in the Act. WE WILL OFFER full reinstatement to available jobs to the em- ployees who were laid off during the reduction in force which cul- minated in the plant shut-down on July 26, 1947, in accordance with the seniority practices then prevailing, without prejudice to any seniority or other rights and privileges previously enjoyed, dismissing, if necessary, persons now occupying them, as provided in the remedy section of the Board's Decision. WE WILL bargain in good faith with the above-named Union re- garding the reinstatement to other available jobs of those laid- off employees who will not be entitled to reinstatement in their former jobs because of insufficient seniority or because the de- partments in which they formerly worked were discontinued or whose operations were so materially changed that their jobs for all practical purposes are no longer in existence, as provided in the remedy section of the Board's Decision. WE WILL NOT take unilateral action with respect to the recall of laid-off employees without prior consultation and negotiation with the above-named union, or engage in like or related conduct. WE WILL NOT in any manner interfere with the efforts of the 877359-50-vol. 87-53 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD above-named union, as the exclusive representative of our em- ployees in the unit described above, to bargain collectively with us. WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA, Employer. By ----------------------------------------- Dated -------------------- (Representative) (Title) INTERMEDIATE REPORT AND RECOMMENDED ORDER Messrs. Andrew P. Carter, Charles A. Kyle, and Gerold Sindler, of New Orleans, La., on behalf of the General Counsel. Messrs. Thomas S. Adair, of Montgomery, Ala., Edwin F. Ryan, Jr., of Spar- tanburg, S. C., and H. D. List, of Birmingham, Ala., on behalf of Textile Workers Union of America, C. I. O. Mr. Frank A. Constangy and Mildred McClelland of Atlanta, Ga., and Mr. T. B. Hill, of Montgomery, Ala., on behalf of Respondent. STATEMENT OF THE CASE Upon a charge filed December 29, 1947, by Textile Workers Union of America, C. I. O.,' the General Counsel 2 of the National Labor Relations Board,' by the Regional Director for the Fifteenth Region, issued the complaint herein, dated July 13, 1948, against West Boylston Manufacturing Company of Alabama,` alleging that it had engaged in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1), 8 (a) (3), 8 (a) (5) and Section 2 (9) of the National Labor Relations Act.' Copies of the complaint and notice of hearing thereon were duly served upon the Respondent and the Union. With respect to the unfair labor practices, the complaint alleged, in substance : (1) Respondent, by G. Arthur Cook, Foreman Beard, Overseer Tisdale, Assistant Overseer Strickland, and Overseer Fisher, from and after July 1, 1947, made statements discouraging union membership and activity ; interrogated employ- ees regarding their union membership and union business ; and suggested with- drawal from the Union for self-benefit ; (2) Respondent, on November 24, 1947, discharged one Willie Missildine and on or about July 17, 1947, laid off 144 em- ployees, named in the charge and named hereinafter,' and has since refused to reinstate them because of their union membership and activities; (3) Respond- ent, from and after June 28, 1947, has refused to bargain collectively with the Union as the exclusive representative of its production and maintenance employ- ees ; and (4) Respondent, by these acts, has engaged in unfair labor practices within the meaning of Section 8 (a) (1), 8 (a) (3), and 8 (a) (5) of the Act. i Hereinafter referred to hs the Union. This term is used hereinafter to designate both the General Counsel and the attorney representing him at the hearing. 3 Hereinafter referred to as the Board. 4 Hereinafter referred to as either the Company or the Respondent. ' 49 Stat. 449, as amended by the Labor Management Relations Act, 1947, 61 Stat. 136, hereinafter referred to as the Act. Certain of the earlier events in the course of action hereinafter related occurred prior to the effective date of the amendment. So far as this proceeding is concerned, the applicable sections of the statute were not changed. 0 Certain of them are named hereinafter in the body of this report. The entire list is attached hereto as Appendix A. WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 821 On August 4, 1948, Respondent filed an answer admitting that it discharged Willie Missildine and that it laid off some but not all of the persons named in the complaint, averring that this discharge and these lay-offs were for causes connected with the operation of Respondent's plant and arising from changes in its ownership and in its product and production processes. It denied the commis- sion of any of the unfair labor practices alleged. Pursuant to notice, a hearing was held at Montgomery, Alabama, from August 9 through August 18, 1948, before Merritt A. Vickery, the undersigned Trial Ex- aminer, duly designated by the Chief Trial Examiner. The General Counsel, the Respondent, and the Union were represented .by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence was afforded all parties. During the presentation of his case and before he rested, the General Counsel stated that, through inadvertence, the name of one Jesse C. Bradley had been omitted from the list of persons who "the complaint alleged had been laid off in violation of Section 8 (a) 3 of the Act. He moved that the complaint be amended to include his name. Bradley was present at the hearing and had testified as a, witness. Over objection by Respondent, the motion was granted. At the end of the General Counsel's case and after he had rested, Respondent moved for dismissal (a) of the allegations of violation of Section 8 (a) 1 of the Act by Cook, Beard, Tisdale, Strickland, and Fisher (paragraph 4 of the com- plaint) and (b) for dismissal of the complaint in its entirety. The motions were denied. At the end of the hearing, Respondent renewed these motions. Ruling on them was reserved. They will be disposed of in the course of this report. Upon the entire record and from observation of the witnesses, the Trial Exam- iner makes the following : FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT West Boylston Manufacturing Company of Alabama is uan Alabama corporation with its office and principal place of business located in Boylston, Alabama, about 4 or 5 miles from Montgomery. It is engaged in the manufacture of knit- ting and weaving yarns. Prior to July 26, 1947, its business consisted almost entirely of the manufacture of tire cord and tire cord fabric, principally for the General Tire & Rubber Company. In the course and conduct of its business, during the year ending January 12, 1948, it purchased raw materials, consisting principally of raw cotton, valued in excess of $1,500,000, approximately 60 percent of which was purchased outside the State of Alabama and shipped in interstate commerce to the Boylston plant. During the same period, the Respondent manufactured and sold finished products, consisting principally of knitting and weaving yarns and tire cord fabric, valued in excess of $2,000,000, approximately 95 percent of which was sold and shipped to customers outside the State of Alabama. Respondent admits and it is found that the Respondent is engaged in commerce within the meaning of the Act. If. THE ORGANIZATION INVOLVED Textile Workers Union of America, affiliated with the Congress of Industrial Organizations, is a labor organization within the meaning of Section 2 (5) of the Act. It admits to membership employees of Respondent. 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT a. The background before 1947 The locale is Respondent's mill and adjoining village, together occupying 140 acres in Boylston, Alabama, about 4 or 5 miles from Montgomery. Or, to speak more accurately, Respondent's mill and its village constitute Boylston. Respond- ent owns the mill, the houses, the store, the post office, even the church: In the village live Respondent's officers and a large number of its employees. The dramatis personae include, on behalf of Respondent, G. Arthur Cook, man- aging agent and treasurer ; his secretary, Miss Gertrude Ward ; Superintendent J. E. Farrell; Assistant Superintendent and Personnel Director L. M. Gross; Labor Counsel Frank A. Constangy ; and a number of overseers and assistant overseers, of whom it is necessary to mention only Strickland, Fisher, Tisdale, Beard, and Norman. On behalf of the Union, the principal actors were State Director Edmund F. Ryan, Jr.; his assistants, Houston Troupe and Lloyd Davis ; and Louis Evans, the president of the local union. Such others as it becomes necessary to name will be designated as to their company or union connection as they appear. Of those above named, all lived in Boylston and worked at the mill except the three State officials of the Union who were attached to its office in Birmingham, about 100 miles away, and Constangy, whose office was at Atlanta, some 200 miles distant. Prior to March 1946, the Company was owned by 133 individual stockholders. Almost at the outset of World War II, as a result of War Production Board directives, the Company devoted its entire productive capacity to the manu- facture of tire cord and tire cord fabrics, operating on a 3-shift basis, with a maximum employment of over 1,000 persons. After the war, it continued to manufacture tire cord and fabric, under a contract by which the General Tire & Rubber Company purchased virtually the entire output. Respondent's maxi- mum number of employees when operating under this arrangement in 1947 was about 750 people. In February 1945, the Union was certified as the bargaining agent of Re- spondent's employees and in May of that year a first collective bargaining agree- ment was consummated, expiring May 14, 1946 8 From the outset there was more or less disharmony between the Company and the Union. In 1945 and 1946 a number of "wildcat" strikes occurred, one or more of which was participated in by the then president of the local Union, Pelham' For this, sometime after May 1, 1946, he was disciplined by the Union and replaced by Evans.10 In March 1946, an agreement was made whereby the United Elastic Cor- poration purchased all the capital stock held by the individual stockholders of Respondent. Prior to the public announcement of the purchase, Cook called in Ryan and the local union committee and informed them of it. He advised them as to its ultimate effect in terms of change of product, method, and machinery, as contemplated by the new owner. He told them that it was planned to shift the mill in due time from the manufacture of tire cord and tire cord fabric to that of I Its use as a place of worship has been discontinued. At some points in the testimony the building is referred to as the church ; more frequently as the recreation hall. 'This contract was not introduced in evidence. The testimony indicates that the sub- sequent agreement differed from it but does not show the points of difference. 9 At various points in the record Pelham is spelled Pellum or Pellums. 20 Pelham left Respondent's employ prior to any of the acts giving rise to this proceeding. WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 823 knitting and weaving yarns for the purchaser's own use. On March 21, 1946, the account of the impending sale was published in the Montgomery papers and from then, if not before, was known to the rank and file of Respondent's em- ployees." Under date of April 8, 1946, Cook informed the Union of Respondent's intent to terminate the then existing collective bargaining agreement on its expiration in May. With his notice he stated a willingness to enter into a new agreement if certain but unspecified changes could be made. It should be noticed that this notice refers, as the basis for the demanded changes, to the fact that the 1945 contract was written under wartime conditions which no longer prevail, and that it does not suggest as a basis for change either the change in ownership then impending, or the prospective changes in product, method, or machinery. April 23, 1946, the first meeting was held for the purpose of negotiating a new collective bargaining agreement. The course of negotiations continued over a considerable period. On May 8, 1946, it was apparent they would not be com- pleted before the old agreement expired and an interim agreement was excuted to extend it to June 14. At a meeting held about May 1 the negotiations were interrupted by a quarrel between Cook and Pelham over the latter's act of writing directly to the president of United Elastic Corporation. Cook insisted that Pelham had sought to go over his head and to get him discharged. Pelham read the president's reply. It was of a generally friendly nature and stated that United Elastic Corporation would take over the mill about May 1, 1946. In fact, the purchase was consummated on May 26, 1946, while the collective bargaining negotiations were still going on. The changes in product and production processes started before the completion of the negotiations in 1946 and almost immediately led to a short, partial lay-off, commencing about June 1, 1946. This caused some "rolling and bumping" among the employees in attempts to secure their respective seniority rights and led to further discussions regarding the seniority provisions to be included in the new agreement's During these negotiations, Cook and Farrell explained again to the Union's representatives that certain technological changes were inevitable under the plans of the new owner ; that these would cause the abolition of certain depart- ments and that of some jobs in those which remained ; would result in changes in some of the jobs, in alteration of work loads, and in operation with a greatly reduced number of employees. The new collective bargaining agreement was executed on July 14, 1946. At the Union's request, its term was extended slightly beyond a year and its ex- piration date made August 1, 194713 Under this agreement, due to its provision for a check-off, the numerical strength and the completely detailed personnel of the membership of the Union were known to Respondent. At the Union's high point it had enrolled over 550 11 The account was based on an interview with Cook. He testified that it was substan- tially correct. 12 There appears some conflict of testimony regarding the June 1946 lay-off. It is un- necessary to decide this, since the matter seems immaterial to the issues . There is no con- flict in regard to the fact of the discussions referred to in the text. The evidence does not indicate their exact tenor or what changes, if any, resulted from them. 13 Ryan and Cook agree that the extension of the term was because of a union request. They disagree as to the reason given. Ryan said it was to make this agreement coincide as to date with the Union's agreements with United Elastic Corporation ; Cook, that it was part of a union plan to place the entire southern textile industry on an August 1 basis. The reason seems immaterial to the issues and, hence, unnecessary to decide. 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Respondent's employees, almost 80 percent of the production and maintenance personnel. The changes in product and processes proceeded, somewhat slowly at first. The resulting changes in work loads led to a long series of grievances, arbitra- tions, walk-outs, and to calls on the Conciliation Service 34 for aid. About August 1, 1946, Respondent sold its tire cord machinery to the General Tire & Rubber Company which leased it back to Respondent to operate in manu- facturing tire cord fabric for it. This lease, by its terms, was to run until December 31, 1947, but contained a provision that it might be canceled on notice. There is nothing in the evidence to suggest that any phase of this arrangement was called to the attention of, or was known by, the Union or any employee. October 1, 1946, Constangy became Respondent's representative in its labor relations . Cook testified that he was given "full power and authority" to handle negotiations and to conclude agreements on Respondent's behalf, in its dealings with the Union.15 Constangy represented a number of other mills in the cotton textile industry, many of which had agreements with the Union. This brought Constangy and Ryan into frequent contact on labor problems. A pattern of dealing thus became established between them whereby they would meet from time to time, informally discuss problems, grievances, contract provisions, and similar matters and arrive at tentative solutions which they then submitted to their respective principals, when and as necessary. So much for the background. Before considering the events of 1947, the collective bargaining agreement of June 1946 should be examined, since under it many of the rights herein involved must arise, if they are to be found to exist. b. The collective bargaining agreement of 1946-19J7 Only those sections will be set forth which have a direct bearing on the issues. For the sake of brevity, they will be paraphrased rather than fully quoted. Section 1. The company agrees to recognize and deal with the Union, as exclusive bargaining agent, in all matters pertaining to conditions of employment. Section 2. Management of the mill; direction of working forces ; right to decrease operations ; right to remove or install machinery; right to in- crease or change equipment ; right to introduce new methods ; right to relieve from duty for lack of work ; right to employ, lay-off, reemploy, transfer, demote or discharge for proper cause, are vested in the Company. Section 3. Grievances arising from operation or interpretation of this agreement, or concerning conditions of employment, if not settled by depart- ment or shop procedures, are to be arbitrated. Section 4. Findings and decisions of a majority of the arbitrators are to be binding and conclusive. 11 Wherever, throughout the course of this report , the Conciliation Service is mentioned, the reference is to the agency now entitled the Federal Mediation and Conciliation Service. Ss In spite of Cook 's statement of Constangy 's powers, he stated , under questioning by Constangy himself, that although the latter had recommended extension of the collective bargaining agreement which was to expire August 1, 1947 , he (Cook ) decided against it. Further, it is apparent from the evidence as a whole that certain matters directly bearing upon Respondent 's industrial relations were decided by Cook , independently of Constangy and without his knowledge . Also, it similarly appears that some of Constangy 's decisions were nullified in practice by refusals-by Farrell , in particular-to follow them. WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 825 Section 7. Seniority . . . (b) The principles of seniority herein established shall be applied to lay- offs and recalls. The term "seniority" means the relative status of employees in the several departments respectively, in respect to length of service with the Company. It is understood and agreed that'no employee shall be entitled by seniority to be employed or retained on any job for which he is not properly qualified. (c) Seniority shall be reckoned and applied to departments. (d) Seniority within departments, in lay-offs and recalls, shall prevail, provided the employee retained or recalled is qualified to fill the position. Members of the General Shop Committee shall head the seniority roster for the purpose of lay-offs and recalls. New jobs or vacancies in any department shall be offered to those employees who have been laid off before new employees are hired for such positions, provided the employee retained or recalled is qualified to fill the position. (k) The Company will post and maintain in each department a seniority roster for that department. Any appeals from it shall be made through the regular grievance procedure within 30 days after posting. In default of such appeal, the roster shall be binding on all parties. It is apparent from the testimony that while Respondent and the Union agreed upon the words of a contract, they never agreed upon what they meant. Two of their differences of interpretation have a bearing upon this proceeding. Did the agreement provide for only departmental seniority, or did it give the employees of a department which should be terminated a preferential right to employment in some other department which had jobs they were qualified to fill? Respondent took the view that the wording of Section 7 (b), (c), the first para- graph of (d), and (k) meant only seniority within a department. The Union urged that the wording of the third paragraph of Section 7 (d) gave employees in discontinued departments a preferential right to jobs in other departments before new employees could be hired. What is the proper construction of the phrases, "properly qualified," "provided he is qualified," and "if qualified"? The Union contended that these meant only that the employee need be able to meet the minimum requirements of a particular job standard. If he could do that, the fact that another could do more or better work in that job was immaterial, and the employee with greater seniority should prevail. Respondent urged that the phrases were to be interpreted to provide for a comparative basis and that no employee could be regarded as qualified if another available, even though he had less seniority, could do the work better, or produce more. So far as this proceeding is concerned, the evidence shows no attempt was ever made to obtain a resolution of either of these disputes under Section 3 of the agreement. c. The events of 1947-194$18 May -, 1947. Sometime during the month, Ryan suggested to Constangy that since "the real job of changing this plant over" was still to be done it would 16 There is little conflict of evidence regarding these events. In the main , the statements of the. text are based on Ryan's testimony. In evaluating his evidence, it should be .remembered : ( a) throughout his time on the stand, Constangy and Gross were present, the former as counsel for Respondent ; (b) Ryan testified with knowledge that, he would face cross-examination by Constangy and he was, in fact , so cross-examined ; (c) he was 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be in the interest of harmony to let the existing contract automatically be re- newed for another year. Constangy agreed and said he would recommend it to Cook. June 1, 1947. The third, shift was discontinued. Apparently, at the time they were then notified of a lay-off for lack of work and were notified sometime later that their jobs were discontinued and their employment terminated. What- ever the form of the notice, the action was followed by considerable "rolling and bumping" by which third shift members with greater seniority displaced mem- bers of the other shifts who had less. By the discontinuance of the third shift, Respondent's production personnel was reduced from about 730 to about 640 persons. June 12, 1947. Respondent was notified that upon completion of the orders then in process-then estimated to occur about August 1-the General Tire & Rubber Company would terminate the contract for the manufacture of tire cord and fabric. June 28, 1947. Respondent notified the Union of its intention to terminate the collective bargaining agreement on its expiration. Cook's letter referred to the approaching end of tire cord manufacture and to the prospective removal of machinery. It did not allege any dereliction on the part of the Union. The letter concluded: As soon as we have been able to ascertain exactly what our status will be under the changeover, we will be glad to discuss with you such changes as will be necessary in the new contract. July 1, 1947. The Union acknowledged receipt of this notice. Its letter re- quested, "Will you kindly let us know within the next few days the date, time, and place we can start negotiations for a new contract?" This letter was never answered. July 6, 1947. Ryan attempted to call Cook to inquire the status of affairs. Miss Ward informed him that all questions pertaining to the agreement must be taken up with Constangy. Ryan called Constangy who made an appointment to discuss the matter on July 12, at which time they had already planned to meet in regard to a pending grievance. July 11, 1947. Respondent posted a notice that when the stock ran out- estimated to occur July 26-the mill would close indefinitely. It stated Respondent was doing its utmost to permit partial reopening at the earliest possible date. July 12, 1917. Constangy failed to keep his appointment with Ryan. His associate, Legare Davis, who came in his stead, refused to go into the matter of a new contract and limited the discussion to the grievance which had been the original reason for calling the meeting. Davis said that he had neither the requisite knowledge nor authority and that the discussion would have to be postponed until Constangy could be present. followed on the stand, after some days , by Gross , Farrell, and Cook , all of whom had had an opportunity to study in detail the transcript of his testimony, Respondent having been furnished with daily copy of the record ; ( d) Ryan's testimony was not weakened on cross- examination ; ( e) in large part, his testimony was corroborated by written evidence and on many points by either Farrell or Cook ; ( f) his testimony , in material points, was not contradicted by Gross, Cook, or Farrell ; and (g) Constangy did not take the stand. Fur- ther, Ryan repeatedly referred to his file, made at the time , to refresh his recollection. He appeared scrupulous not to overstate matters . As stated, there is no major conflict regard- ing what happened, what was said, or when it happened or was said . In the minor con- flicts, as to matters to which he was a party , Ryan is credited. WEST BOYLSTON MANUFACTURING COMPANY 827' July 15, 1947. Respondent posted notices reading: With the run-out of the stock in the various departments of the mill, the' second shift will be discontinued, and all employees on this shift will be given a separation notice, "Job discontinued ; Employment terminated." Following the sending of these notices, no "rolling and bumping" of .first shift employees occurred. There is evidence that in certain instances advice was given by members of Respondent's management to postpone such action until the mill should reopen. In most cases it doubtless was due to the knowledge that the entire mill was going to close within a few days. A few days after these second shift notices were sent, notices were given the. members of the first shift. These read : "Laid off ; no work available." The, record does not state the exact date of these notices. July 15, 1947. Constangy's associate, Davis, assured Ryan that in a few days, discussions of the terms of a new contract would be commenced. July 18, 1947. Constangy told Ryan that before August 1 the Company would meet with the Union and either renew the existing contract or sign an interim agreement extending it. Constangy said the Union had nothing to worry about;, the Company would recognize seniority as before ; and the provisions of the contract would prevail. July 21, 1947. Miss Ward wrote Ryan that Cook would be available for a meeting in the. week beginning July 28. In fact, he did not become available and the meeting was not held. July 24, 1947. Constangy wrote Ryan in respect to the turmoil raised by the termination and lay-off notices. His letter said, Apparently there is one phase of the shift over in the West Boylston operations that is not clear to you. Every indication is that when West Boylston reopens after the change over in production they will operate only on one shift basis. For that reason in order that the people are not lulled into a false sense of hope it was determined by the company to give people on the second and third shifts termination notices and people on the first shift lay-off notices. We, of course, recognize that there are people on the second and third shifts with greater seniority who will be able to bid. out or bump some of the people who are presently on the first shift 17 July 26, 1947. The mill closed. July 30, 1947. In answer to a request for a formal extension of the Union contract, Constangy said that he did not have authority to agree to it but that he would recommend it. Also, he said that due to Cook's absence it might be necessary to go a few days without an agreement. July 31, 1947. Constangy told Ryan that he had talked to Cook by long distance telephone in regard to an extension of the contract and that Cook appeared to regard it favorably. August 1, 1947. The expiration date stated in the contract. August 1947. Cook told Farrell that when the mill reopened , he should use the Company's "merit-rating system" as the basis for selecting the employees to be recalled. Farrell did not specify the date of Cook's instructions more closely than "the first part of August." There is no evidence to indicate this decision was communicated to or known by the Union or any employee. "As will be pointed out in the text hereinafter , the use of the future tense in regard, to the exercise of seniority rights should be noted. 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD August 7, 1947. Constangy informed Ryan that Cook refused to extend or renew the agreement. Constangy stated that Cook had informed him that it would be about November 1 before the mill could open ; that, meanwhile, the Company would make no question about people living in company houses in the mill village ; that those who were without work could postpone their rent payments until after the mill started up and they were again employed; that there should be no worry about evictions; that interim employment elsewhere would not injure an employee's opportunities for reinstatement ; that workers would be called back in the order of seniority ; that the meetings with the Shop Committee would continue as before ; and that Cook was sending by him a. message reiterating his statement that despite the shut-down and the expiration of the agreement, the Company would negotiate and work out an agreement with the Union before the mill reopened. Ryan asked Constangy for a confirmatory letter which he would be able to show and read at a union meeting. Constangy agreed to send it. August 10, 1947. Farrell refused to meet with the Shop Committee. Constangy said this was a misunderstanding and that he would straighten it out. Farrell, however, persisted in his refusal. August 12, 1947. Constangy wrote Ryan, in fulfillment of his promise of August 7: In accordance with our several conversations . . . be advised that our estimates . . . are that it will be approximately November 1st before we will be able to reopen the plant for the new type of operation. As I have indi- cated to you, the Company is prepared to advise you sufficiently far in advance of the time that we are certain that we will begin operations of our intention of reopening in order that at that time we may sit down together, confer 'and negotiate on the terms and conditions of the new agreement. You, of course, understand that as of the time the Company reopens, it will only be on a one-shift basis and that will necessitate certain substantial variations from the present agreement. August 1947. A few days after the meeting of August 7-the exact date not being specified-five employees, none of whom were then employed and all of whom were union members, were served with eviction notices. Ryan called Constangy. He expressed surprise and said he would take it up with Respondent. A day or two later he reported that the Company had served these five because they were not desirable residents of the village ; that since these five cases had become a court matter between the attorney for the tenants and the Company's general counsel he could do nothing about them ; but that no more eviction notices would be issued. August 20, 1947. Farrell again refused to meet the Shop Committee. He said that since the contract had expired there was nothing to discuss. In fact, there were two or three grievances pending and not yet acted upon. The evidence does not disclose the nature of these grievances. August 1947. In the latter part of August and the first few days of September a number of eviction notices were served. September 1947. Early in September, Ryan requested Constangy to arrange a meeting to be held in Boylston, to be attended on the part of the Company by Constangy, Cook, Farrell, and Gross and on the part of the Union by Ryan and, the Shop Committee. Constangy, at first, agreed to this but later said that it would be impossible and that if they wanted to meet him they would have to come to his Atlanta office. WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 829 September 15, 1947. According to Cook, by this date Respondent knew the number of employees that would be needed for the reopening operations. Also, by this date it had completed the merit-rating of the laid-off employees.18 September 30, 1947. The Union learned that Respondent had recalled certain employees and informed them that the mill would reopen October 6. Ryan called Constangy who said that the reopening was a surprise to him. He told Ryan to prepare a contract proposal ; to send it to him ; and that they would imme- diately commence negotiations. October 6, 1947. The mill reopened. October 10, 1947. Ryan mailed Cook and Constangy duplicate proposals of a new collective bargaining agreement. October 11, 1947. Constangy wrote Ryan, I am frank to say that I am somewhat amazed at what apparently is a complete disregard of our understandings. I agreed with Mrs. Stewart (of Conciliation Service) that if you submitted to me, for consideration, a recognition agreement that I would be glad to talk to you about it on Tuesday, with possibly Louis Evans being present. I have made it clear to you that we would not be in a position to negotiate a complete contract until we have had some experience in operation under the new system and until the plant is somewhat manned. Your letter . . . and the attachment does not comply with our under- standing . . . I definitely will not be in a position to discuss your pro- posals, or anything like them, on Tuesday. October 13, 1947. Ryan answered Constangy, reminding him of the promises made by Cook, by Legare Davis, and by himself that the Company would notify the Union sufficiently long before the mill reopened to permit negotiation of a new agreement. Ryan quoted Commissioner Stewart's letter to him which had been the immediate cause of his contract proposal. She had written that she had seen Constangy and that He states he is ready to enter contract negotiations with you at any time and suggests that when you are ready to begin negotiations you may submit to him proposed contract language (your contract proposal) for a new agreement. May I suggest that you contact Mr. Constangy when you have prepared your proposed contract, with a suggestion as to a date for a first meeting. October 16, 1947. Ryan wrote Cook requesting a conference covering the recall of laid-off employees and questions of seniority. October 21, 1947. Gross wrote the nonrecalled employees: The purpose of this letter is, therefore, to let you know that your status must be changed, effective immediately, from that of lay-off to that of termination. October 22, 1947. Cook informed Ryan it would be impossible for him to meet before November 1. He suggested meeting at Boylston on November 6. November 6, 1947. Meeting at Boylston . ( Discussed hereinafter.) November 7, 1947. The Union commenced compiling a list of employees not recalled who claimed a right to reemployment . Union representatives inter- viewed such employees and noted the basis of their claims. "There is no evidence that either of these facts was made known to the Union or to any employee. 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Also, on this date Gross wrote Ryan: The only departments that are operating and will operate in. the fore- seeable future on even a one shift basis are as follows : Carding, Spinning, Twisting and Winding, Maintenance, Yard. These departments are oper- ating on a one shift and very curtailed basis. No further expansion of these departments is contemplated at this time. November 13, 1947. Constangy forwarded to Ryan two proposals: (a) of procedure for reviewing the cases to be presented by the Union's list of employees not recalled ; (b) of a seniority provision to be included in a new contract in place of the one submitted by Ryan. November 1947. The Company caused eviction notices to be served on 22 employees. The Union made a survey and found that 71 of the. approximate 250 houses of the village were vacant at the time. On November 26, Ryan wrote Cook requesting him to withhold action on these evictions. Cook denied Ryan's request.39 November 29, 1947. Ryan acknowledged receipt of Constangy's two proposals of November 13, stating he had not had time to examine them. December 1, 1947. The Union gave Farrell a partial list of nonrecalled em- ployees. He accepted it with the statements that he could do nothing until the list was completed and that he must have time. December 8, 1947. The Union gave Farrell the names completing the list. Again, Farrell accepted the list, again agreed to look it over, and again said he must have time.20 December 9, 1947. Union representatives went to Constangy's Atlanta office to complain of Farrell's attitude and of the evictions. Constangy promised to have Farrell act speedily on the list?1 . December 16, 1947. Ryan again complained to Constangy about Farrell's in- action. Constangy again agreed to urge him to action. December 17, 1947. Lloyd Davis, following Constangy's suggestion, went back to Farrell in regard to the list. Farrell said he could do nothing until after the Christmas holidays. December 29, 1947. The Union filed the charge in this proceeding. January 7, 1948. Lloyd Davis, in default of word from Farrell, tried to tele- phone him, regarding the list, but was denied opportunity. January 14, 1948. Troupe tried to call Cook in regard to Farrell's inaction. Miss Ward, with knowledge of the subject of the call, refused to connect him with Cook and told him to take the matter up with Constangy. January 19,1948. Lloyd Davis tried to call Cook in regard to Farrell's inaction. Miss Ward, with knowledge of the subject of the call, refused to connect him with Cook and told him to take the matter up with Constangy. Also, on this date the Company recalled 27 more employees. And in the next 3 days it took on 19 more. January 26, 1948. A letter signed by Cook was given each of the recalled em- ployees. It is discussed hereinafter. Also, on this date and the 3 days following, 53 more employees were recalled. 11 Eventually, the Alabama Supreme Court held against the Company on these evictions. The record does not show the ground of the decision. 20 It should be noted that Farrell voiced no objection to the number of names or to the nonacceptance of Constangy's proposed procedure. 21 It should be noted that Constangy voiced no objection to the number of names or to the nonacceptance of his proposed procedure. WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 831 February 3, 1948. Constangy refused to deal with the Union, on the ground of doubt that it represented a majority. February 5, 1948. Cook sent the following note : Mr. J. E. FARRELL, Superintendent.. The following word is to be given out to our employees. The company has come to the conclusion that the union does not represent the majority of its employees and the company will not deal with the union until it is convinced that the union represents the employees by an election. (Signed) G. A. COOK, Treasurer. This note was passed on to at least some of the overseers and by them shown to some of the employees. February 1.1, 1948. Constangy wrote Troupe informing him of the Company's views that the Union no longer represented the employees , that for several months it had been seeking to have the employees deprived of their jobs in order that they might be replaced by others , that because of this the Company was petitioning for- an election and that because of this the Company could not meet or bargain with the Union. Also, on this date the Company filed with the Board a petition for an election. March 5, 1948. Each of the nonrecalled employees whose name was on the list compiled by the Union applied to Respondent for reinstatement or for em- ployment. March 12 , 1948 . Respondent wrote in answer to the applications of the non- recalled employees : This is to acknowledge your mimeographed letter of March 5, 1948. Please be advised that we do not, at this time, have a vacancy which we feel that you are competent to fill. It is not our practice to accept or retain continuing requests for employment. If, in the future, you should wish to make application for employment to our Personnel Department through the regular procedure of that depart- ment, and there are, at that time, vacancies for which we believe you have the necessary qualifications and competence, we will be glad to give con- sideration to such future application. August 2, 1948. Respondent posted on the bulletin board a notice reading : Notice to Employees: You have our assurance that, if and when any general wage increase is made throughout the Southern Textile Industry , it will be made effective in this plant , as has been customary in the past . It seems that such a general wage increase is presently being contemplated. (Signed ) G. ARTHUR CooK, . Treasurer. No similar notice had ever been posted preceding any former "customary" wage increase. ( This notice was posted 1 week before commencement of the hearing in this proceeding.) Certain of the events above catalogued require more detailed discussion. Before entering upon that , however, another chronological list of events should be set forth . That is, of the course of alleged antiunion statements which Ryan characterized , in his testimony, by the phrase "the campaign to demoralize the Union." 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD d. "The campaign to demoralize the Union" To complain about this, Ryan testified, was the major purpose of the trip made by Davis, Evans, and himself to Constangy 's office in Atlanta on December 9, 1947. He did not specify what he regarded as included in the phrase , except the treatment Farrell was currently giving them in regard to the list , the evic- tions and the course of statements which he characterized as antiunion and which, over the preceding months, had been reported as emanating from the overseers and their assistants. The treatment given the Union in regard to the list will be related in detail hereinafter. The fact of the evictions has been noted and will be referred to again. The reports of statements antipathetical to the Union had begun to come in before the mill closed and did not end until shortly before the hearing in this proceeding, over a year later. At a time identified only as "in the middle of the Spring of the year before the plant closed down in July," in a conversation with then employee Jesse Bradley, Assistant Overseer Beard said, "I'll bet you a hundred dollars that Mr. Cook never will sign another union contract. I know they won't sign another one." June 7, 1947. Chief of Guards Henry Till said to Union President Louis Evans, "Louie, they are fixing to bust up the Union . I thought I tip you off , so that you could keep your ears and eyes open." July 1947. ( Exact date unspecified.) Assistant Overseer Fred Strickland said to employee A. C. White, "Looks like this mill is going to shut down. I'll be glad when it do. We won't have no seniority and I won't have no damn Union to put up with." This remark was made when White, in an official union capacity, was protesting an act of Strickland's which he thought violative of the seniority provisions of the contract. July 1947. ( Date not specified more exactly than "a week or two after" the foregoing.) Overseer V. E. Fisher , in a casual, off-duty conversation , said to White, "I'll be glad when it (the stock on hand ) do run out, because then we won't have any more seniority , and we won't have no damn union and there won't be any contract." July 1947. ( Exact date unspecified.) Assistant overseer Beard, in a casual conversation, said to employee Ross Hamilton , "After expiration of the contract, there won't be no Union." July 19, 1947. Overseer C. P. Tisdale said to employee Thomas Lee Paxton, "I'll see about your job if they ever start up, but there's one thing sure. I want you to know that there won't be any union to dictate and the people will know who's boss." July 22, 1947. Master Mechanic Harry C. Norman, the overseer of the Main- tenance Department, said to employee Linzy J. Baker, "Whenever you come back, you'll come under no seniority." Baker said, "Well, that means no Union." Norman replied, "Oh, no. Not a chance." November 1947. Shortly after the November 6 meeting, Beard said to termi- nated employee Robert Kellum, "Well, Bob, your Union's gone. Your man (Ryan) sold you out . You won't have any more Union." November 1947. (Exact date not specified more closely than a week or two after the foregoing.) Kellum and Beard happened to meet again, got into con- versation . In the course of it, Beard said that the Union "wasn't any good" to its members and that it "was busted." WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 833 January 1948. Terminated employee A. C. White came back to the mill to get his tools. Overseer Fisher was checking the process. When White's union membership book turned up, Fisher said, "You just throw that away and forget about it. You won't need it here or nowhere else." January 1948. Guard John Cone told terminated employee Edward E. Elmore that he had lost his job only because of his union membership. January 16, 1948. Beard told terminated employee. Everett Rester that he had been let out only because of the Company's desire to get rid of the Union. Beard also said, "The mill just shut down to get shut of the Union," and "It will never start up any more with a Union." January 26, 1948. At the mill, Beard said to recalled employee George W. Couch, anent Cook's letter of that date which had just been delivered to the employees, "Well, George, I guess this is the end of a damn good Union." February 1948. Beard said to Kellum, "Well, Bob, your Union's gone," and followed this by saying that Mr. Farrell told him "they wasn't going to have a union there any more; that they would shut down before they would." February 5, 1948. Tisdale read to recalled employee John Porter a note signed by Cook stating that word was to be given out to the employees that the Com- pany had come to the conclusion the Union did not represent a majority and, hence, would not deal with it. June 1948. In a casual conversation when they happened to meet near the plant gate, Beard said to terminated employee Baker, "Well, Mr: Farrell said we wouldn't have no more Union ; not as long as he had anything to do with West Boylston." July 1948. Beard told Kellum that if the Union were to win this proceeding the Company would shut down the mill. "If they do, there won't any of us be here long. They're not going to start back up, if they win." Without identifying the dates of the remarks, Shelby Holmes, a recalled employee who was working for Respondent at the time of the hearing and at whose home Beard roomed, testified concerning Beard, "Well, I heard him say many a time we wouldn't.have any more Union out there. The Union was gone." George Pearson testified to a number of conversations with Beard. The dates were not identified more closely than that they were after Pearson's recall, in October 1947, and before July 1948. In one, Beard asked, "What do you think about the Union now?" Pearson replied, "I don't know. What do you think about it?" Beard said, "It looks like the Company is doing a good job at it, but they just got started at it wrong. They could have done a better job if they had started right. They could have kicked all of you out and had it whupped completely." At another time, Beard asked Pearson, "Do you think they got the Union whupped good?" Pearson answered, "No, they ain't got it whupped." Beard replied, "Well, they say they got it whupped." In still another conversation, Beard asked Pearson's view as to the probable outcome of this proceeding. Beard went on to say, "If they don't win, there's going to be somebody out of a job. If the Company doesn't win, the whole thing is going to be laid on us overseers and section men, and if you don't win, we are going to throw you out of here by the seat of your britches." And, in a conversation identified as being about June 23, 1948, Beard inti- mated to Pearson that during the meeting of November 6, when Ryan left the Shop Committee outside of the building while he met briefly with Respondent's officials, Ryan had betrayed the men. "The sixth day of November is the day 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they left you all standing out there in the grass . That's the day you was all whupped out, right there." As early as July 1947 , Ryan complained to Gross regarding statements being made by the supervisory employees. The evidence does not show the detail in which the complaint was couched , or whether it specified any particular state- ments and named any particular supervisors or was only in general terms. Obviously , not many of .the remarks above quoted could have been a subject of ,complaint as early as July 1947 . Gross said he would check into the matter and if the supervisors were making the statements attributed to them, it would be stopped. At the November 6 meeting , Ryan brought up the subject of "all these wild statements which had been reported to us." And, as has been said, on December 9, 1947, Ryan made the statements a :matter of complaint to Constangy. The record contains no evidence indicating that Respondent made any effort to discover the truth of the matter or to correct the situation . The only testi- mony on the subject is to the contrary . Beard testified that no one ever talked to him about it. Beard and Norman were the only ones of the listed speakers to take the stand. Norman was not asked about his conversation with Baker . Beard made blanket denials of all the remarks the various employees had testified he had made. On the testimony as a whole , that of the different employees who referred to him and that which he himself supplied and on his appearance on the stand, the impression is clear that Beard is an extremely garrulous person, a loose talker. His denials of the remarks attributed to him do not appear worthy of credence. It is found that he and the others above named made, in substance , the state- ments set forth. There is a complete absence of evidence of interrogation of employees as to union membership or affairs , or as to organizational activities . Also, there is an absence of evidence of statements of such a character that they must be regarded-no matter what their context or the circumstances in which they were uttered-as per se coercive , or as necessarily violative of rights secured by the Act. That certain of the remarks of Strickland , Fisher, Beard, and Tisdale-the only ones of the above -listed speakers to be charged in the complaint with coercive statements-can be interpreted in such a way as to render them violative of Section 8 ( a) 1 of the Act, seems undeniable . But it also seems undeniable that all of them can be interpreted as noncoercive and some of them as expres- sions of opinion protected under Section 8 (c). Further , it is clear upon a study of the whole record, when the quoted statements are examined in their context and are evaluated in the light of the surrounding facts, the probability of coercive tendency becomes less clear than appears when they are isolated from their -background. The major importance of the quoted statements in this proceeding seems to -lie, not in the possibility of regarding them as unfair labor practices in and of themselves , but in the light they throw on Respondent's acts earlier outlined and to be discussed in more detail. There may be doubt that coercive tendency can be attributed to the remarks of the four overseers that seniority and the union contract were going to end and that the Union itself was going to be out of the mill. But there can be no doubt of the significance of the fact that these four and Norman , as well, thus actually foretold, as early as July 1947 , what the course of events was to be. WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA -835 There can be no doubt of the significance of the fact that while Respondent's authorized representatives were still assuring the Union the contract would be extended, a new agreement negotiated and seniority followed, these five members of Respondent's management were negating their statements. And there can be no doubt of the significance of the fact that all five expressed their negation not in words connoting a mere vague prediction of a future event but in those indicating a present intent and action in accordance with an existing plan. e. The meeting of November 6, 1947 The meeting held at Boylston, November 6, 1947, was the only one in the long course of events above summarized attended by all the leaders on both sides of the controversy. On behalf of the Company, Constangy, Cook, Farrell, and Gross were present. The Union was represented by Ryan, Davis, and all the members of the Shop Committee. The meeting lasted all day. Ryan testified in detail and Davis, Cook, Farrell, and Gross more briefly as to its events, discussions, agreements, and disagree- ments.a They agree that at the outset some time was taken in discussing, on a per- sonal basis, the operation of Respondent's scheme of recalling employees. The Union stated that the Company had made commitments with respect to bargaining, recall of employees and seniority that had not been kept; that the Company had failed and refused to meet and negotiate and had reopened the mill in spite of promises that the reopening would be preceded by notice and an opportunity to conduct negotiations ; and that it had recalled employees on some basis other than seniority in spite of promises that seniority would be rec- ognized and the provisions of the old contract followed. The Union demanded an explanation. Cook said 199 had been recalled. Constangy said, "We selected them uni- laterally. We knew the Union could not and would not agree to waive seniority." He explained that the selections had been made by rating the employees on workmanship, attitude, quantity, and attendance. The Union brought up the evictions from the houses in the mill village. Cook took the position that this was not an issue open for discussion. The Union seems, in general, to have agreed with that view but, because of the gravity of the situation, it sought to aid the tenants in obtaining some delay. Constangy said, "All we want them to do is get the hell out of that mill village because we want those houses." Cook added that the Company was not in business as a philanthropist and that it wanted the houses. Finally, it was agreed that if the Union would get Hamilton, Cummings, and Rester to vacate, further steps would be postponed 30 days to permit discussion of the problem. Cook and Ryan agree that the matter of a new contract-particularly in regard to a seniority clause-was thoroughly considered. Constangy said he had examined Ryan's proposal. There seemed to be no great difference of opinion except over the clauses covering a union shop and seniority. The Union insisted on a seniority clause similar to that of the old contract. The Company was equally insistent that seniority should start from October 1, 1947, and all employees serve a 6-month probation. It was willing to agree to a pro- vision that after such a probation an employee might accrue the seniority he had standing to his credit when the mill closed. za See note 16. 577359-50-vol. 87-54 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Two reasons were advanced by Respondent in support of this position. (1) It said it had a duty to protect the employees it had recalled. (2) It advanced the theory that in the changeover of the mill a new employer had come into the pic- ture 23 Constangy is said to have phrased it, This is a new company which is just taking over, the United Elastic Cor- poration, and it feels no responsibility to these employees who used to work for West Boylston Company. Respondent was insistent that it would not arbitrate any claims of nonrecalled employees to reinstatement over any who had been recalled. Constangy stated that "the people who had not been recalled were finished." Finally, Cook said, I don't blame these people for being somewhat disturbed in a situation of this kind. There is no doubt that some injustices happened when selections were made . There may be legitimate grievances . There might be some basis for discussing changes. It seemed impossible at that time to obtain agreement how any such matters should be handled. Respondent was fixed in its view it would not arbitrate. The Union was equally determined the cases should be arbitrated. In this situation, the Union took the position that it could compile a list of those who believed they had been unjustly passed over and desired to be reemployed, to- gether with the facts of their employment histories; present this for considera- tion; and that, at least, the individual cases could be dealt with as far as agree- ments were possible. It was agreed the Union should complete this list as soon as possible and present it to Farrell and Gross. They were to check it and confer with the Shop Committee. Cases on which they differed were to be reviewed by Ryan and Cook. What was to happen when they disagreed was left for future decision. Meanwhile, Constangy was to prepare and submit for consideration a suggestion acceptable to Respondent, of a procedure to dispose of such cases. Farrell and Gross both testified that an agreement was reached that the list was to be limited to a maximum of 50 cases. Cook says that figure was men- tioned at the meeting and that Respondent hoped the list would not exceed it, but he specifically corroborated Ryan's testimony that it was not agreed to as a limitation.'" Cook and Ryan agree there was discussion of the possibility of a strike. Constangy went over the situation that confronted the Union. He stated that, the Union was placed in a position where if it struck it would, in effect, be striking 480 people for the'jobs of 200 within the mill ; that if the 200 in the mill struck, the Company was certainly going to spread the word by any means it could that the first 200 reporting would get these jobs; that the local authorities were standing by ready to act in the event of disorder; that the Union was the representative of the 200 who had been recalled and if 23 Ryan's testimony that the claim was advanced of a "new company " is corroborated by the proposals Constangy submitted on November 13. They are discussed later in the text. 24 As has been noted , when the list of 144 names was presented, no objection was made that it was in violation of an agreement to limit it to 50. The failure of such objection corroborates the testimony that there was no such agreed limitation . The Trial Examinor discredits Gross' and Farrell's testimony in this respect. If there had been such an agreed limitation , the acceptance of the longer list with the promise to review it and act upon it, would , it is submitted, constitute a waiver of the limitation , even if it had been agreed upon as a condition precedent. WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 837 it attempted to get them out of their jobs in favor of outsiders it would face the possibility of decertification proceedings 25 The Union pointed out that if a second shift could be put in operation it would create a number of additional jobs and thus would relieve the situation. Cook and Ryan agree in testimony that Cook stated there was no prospect of a second shift "in the foreseeable future." Cook said that by this he meant "in the next few weeks." Ryan said he understood the statement to mean "the plant is on practically a one-shift permanent operation." Gross' letter of November 7, already quoted, seems to confirm Ryan's understanding of the matter. Its phrases "will operate in the foreseeable future on even a one shift basis" and "No further expansion . . . is contemplated" seem inconsistent with Cook's claim. Constangy raised the question of a general wage increase throughout the in- dustry, to become effective on November 10. He said the Company wanted to put it into immediate effect. Ryan suggested that it be deferred until it could be made in connection with a new union contract and then be made ret- roactive. Constangy objected to this, stating the Company felt it had to in- stitute the raise immediately. Earlier in the meeting, the Union had com- plained of remarks, reported to have been made by some of the supervisors, to the general, effect that "the Union is dead." Constangy suggested that the Union join in a stipulation covering the wage increase. He said, "This stipula- tion will prove conclusively that the Union is still in the picture." The Union, faced with the knowledge that in any event the increase was going to be made effective immediately, acquiesced in Constangy's suggestion and joined in the stipulation.Y6 It was agreed to postpone further negotiations for a new contract until the list of employees desiring reinstatement was completed, as that would demon- strate the size and seriousness of the immediate problem with which the parties were faced and would enable them better to discuss what the seniority provision should be. It was agreed that meanwhile Constangy should draft and submit- together with his proposal of machinery for handling the list-a suggested seniority provision which would be satisfactory to Respondent. Also, it was agreed that Gross should furnish the Union with a list of the employees who had been recalled and a list of the departments which had been reopened. This list of departments was furnished the next day, but the list of recalled employees was never received. f. Respondent's severance notices Just before the mill closed, in July 1947, and, hence, before the termination date stated in the collective bargaining agreement, Respondent sent to the em- ployees two different types of severance notice. One read, "Laid off; No work available." This was sent to the members of the first shift-with certain ex- ceptions. The other read, "Job discontinued; Employment terminated." This was sent to the members of the second shift, to the members of the third shift, 25In this connection, it should be remembered that the statement had been made, "the people who had not been recalled were finished." Obviously, under this view, Respondent's unilateral selections were to determine who were and who were not within the Union's sphere of representation as employees. For corroboration of the fact that this was Re- spondent's view of the matter, see Cook's letter of January 26, 1948, discussed later in the text. 25 This stipulation was signed by the members of the Shop Committee and was posted on the mill's bulletin board. 838. DECISIONS OF NATIONAL LABOR RELATIONS BOARD who at the time of its discontinuance had been given lay-off notices, and to some-possibly to all-of those members of the first shift who worked at ma- chines which would not be used in the manufacture of knitting and weaving yarns. These notices were sent on the basis of shifts without regard to the respective seniorities of the recipients. This fact caused a great deal of disturbance among those of the employees who thought they were being terminated wrongfully. It distressed the Union which believed the notices constituted a breach of the contract and violated the seniority rights and procedures guaranteed by it. The evidence is contradictory as to Respondent's reason for its course of action in respect to these severance notices. Because of the disturbance of the employees and the Union over what ap- peared to them to be a violation of the agreement and of rights secured under it, Ryan went to Gross to inquire about the matter. Gross assured him that there was nothing to be concerned about, that Respondent was not terminat- ing the employment of those who had received the "Job discontinued ; Employ- ment terminated" notices and that the only reason for the use of this language was compulsion by the Alabama Unemployment Commission. On July 18, Ryan talked to Constangy about these notices. He told Ryan that Gross had given him the same explanation of the words used which he had given the Union, that they had been required by the State Commission. He went further and assured Ryan that the Union bad nothing to worry about in regard to the notices, so far as the Company was concerned, that it was going to recognize seniority as theretofore and that the provisions of the contract would prevail. A few days after this, on July 22, a delegation from the Union went to the Commission. It denied that Respondent had consulted it in regard to the matter and stated that its rules and practices did not require Respondent to use the forms of notice it had adopted. Finally, on July 24, just 2 days before the mill closed and only a week before the expiration date of the union contract, Constagny wrote Ryan. He pointed out that it seemed probable the mill would reopen with only a one-shift oper- ation and that, in consequence of this, a number of the employees would be bound to lose their jobs. He went on to say: We, of course, recognize that there are people on the second and third shifts with greater seniority who will be able to bid out or bump some of the people who are presently on the first shift. The foregoing is my understanding of the situation and I thought it might be helpful to you to understand the exact reasons for the Company's course of action. The language and the date of this letter should be noted. The letter was written when the mill was actually in the process of closing. It shut down com- pletely only 2 days later. It was written only a week before the Union contract was to expire. Constangy must have known these facts and must have known that the mill would not reopen to give an opportunity to exercise seniority rights until after the expiration date. He must have known that a letter so phrased would be accepted as confirmatory of the statements orally made only the week before. The use of the future tense seems deliberate. Constangy's letter seems to have satisfied the Union at the time. There is no evidence that the dissatisfaction caused by the forms of notice continued to create active unrest after it was received. WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 839 The letter bears a notation indicating that a copy was sent to Cook. He did nothing to correct any of its statements. Cook testified, in regard to the notices : I gave a lot of thought to the form of the separation notice. I knew that when and if we got converted to weaving and knitting yarns we would only be operating one shift. I had every reason to believe that when the employees got a job discontinued, employment terminated, it was the first duty of the Alabama Unemployment Service to get them located. Usually they weren't very active where they got a lay-off notice. Cook explained his belief by stating that for a number of years he had been an Industry member of the Commission. Cook's reason can have validity only upon the assumption that the recipients of the "Job discontinued; Employment terminated" notices would, in fact, be the persons who would be seeking the aid of the agency. Obviously, then, his state- ment presupposes there would be no "rolling and bumping" since this would sever not the recipients but the "rolled and bumped" persons who would have, to show the Commission, only notices reading "Laid off; No work available," and .thus would nullify the reason given for the forms of notice adopted. But if we make this assumption, we are forced to the view that Respondent was disregarding the provision of the contract to handle lay-offs and recalls in accordance with principles of seniority. The only way in which Respondent's use of the two forms can be reconciled with the contract is to assume that no matter who received which form, "rolling and bumping" would be possible, so that the employees, among themselves, would be able to bring the result of retention or recall to employment in line with their respective seniorities. It is not necessary to argue whether or not this would be technically within the terms of the agreement. At least, it would permit attain- ment of the ends the contract sought to secure. Anything less would thwart those ends. It must be remembered that the only explanations given the Union at the time were that stated by Gross, that the jobs were not being terminated, and that both stated and written by Constangy, that seniority would continue to be recognized, the contract would prevail, and the employees would be able to protect their rights as theretofore. g. The "merit-rating system" Respondent, admittedly, did not, recall employees in accordance with seniority. It was not considered in making the selections for reemployment. At the meeting of November 6, Ryan asked how they had been made. Con- stangy answered by saying the men had been graded on workmanship, attitude, quantity or volume of production, and attendance, and that those with the best records had been chosen. He did not refer to a "system," say how the grades had been made, or, even how the terms he used were to be defined. Most certainly he did not suggest a system that had been long established. So far as is shown by the evidence, it was not until the hearing that the claim was first advanced that the selections had been in accordance with and were the results of applica- tion of an established "merit-rating system." In spite of Cook's knowledge of Constangy's assurances to the Union that the employees would be able to protect their seniority rights under the contract, he told Farrell and Gross to recall the employees with the best standing, as shown by the Company's records. He did not give, directly, the date of these instructions. 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD But Farrell testified he was told of Cook's decision in the first part of August. Gross corroborated the time by stating he got his orders from Farrell, "shortly after the shut-down," which had occurred on July 26. And that this was the approximate date appears, by indirection, from Cook himself. He said, I toldDlr. Farrell and Mr. Gross to call back those with the highest rating in line with their cards. And he followed this with the admission that this method could not have been followed, "had the expired Union contract been in force." There is no evidence to indicate that the change of intent as to the method of selection, after Constangy's letter of assurance, was ever notified to the Union. In fact, the contrary appears. On August 7, Constangy again told Ryan that workers would be recalled in order of seniority. On August 12, Constangy wrote him that it would be November 1 before the mill could reopen and that the Com- pany would advise the Union sufficiently far in advance to permit negotiation of a new agreement. On the basis of Cook's testimony, it appears to be established that the reason underlying his refusal to extend or renew the union contract or to afford oppor- tunity for negotiation of a new one in advance of the reopening was to enable Respondent to make a unilateral selection of the employees to be recalled. Further, on the basis of Farrell's and Gross' testimony, it is clear that it was not until after the conflict of Respondent's interest with that of the Union in the method of selection had become clearly apparent, that the merit-rating sys- tem was adopted as the basis for recall. This was supplemented by Cook's answers : Q. Was there any particular reason why you did not discuss that [recall according to the merit-rating system] with the Union? A. Except possibly the difficulty to get them to agree to it. At the Novem- ber meeting we couldn't get them to agree to it. Q. Of course, Mr. Cook, the November meeting was after the act had al- ready happened? A. Right. Correct. Q. Then were you anticipating more or less difficulty, that is, you thought the Union was going to take a certain position? A. I will have to answer that, Yes. Q. And because of that anticipation you took unilateral action, is that correct? A. Yes. Cook, Farrell, and Gross all stated that the process of grading the first and second shift employees was not commenced until "some time in August," after the plant had closed. Thus, it is clear that the decision to use the merit-rating system as the recall basis not only immediately followed the shut-down and the expiration of the union contract but also that it immediately preceded the grading of the employees under the system. The order of these events, their close prox- imity in time, and Cook's admission of a conscious belief that they gave a free- dom to act adversely to the Union's desires which Respondent did not have before, make it necessary to examine the system adopted and its operation, in some detail. Respondent contends that it had adopted the system some time before the 1947 shut-down. Cook said it dated from 1944; thus making it antedate the first recognition of the Union as bargaining agent. Gross said it dated from about WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 841 the middle of 1945; making its adoption about coincide with the execution of the first union contract. Farrell said it dated from some time in 1946. Of the three, Gross testified in the greatest detail and the most positively as to the date. He was the one most closely indentified with the operation of the system, as the personnel officer under whose supervision it was conducted. There is evidence in the record casting doubt on an origin earlier than 1947. It is unnecessary to decide the conflict since even if it be found that the system was adopted in 1945, the finding would have to be qualified by the observation that, due to its method of operation, and to the fact that there had been no instances of major or group severance in 1945, 1946, or the first part of 1947, it existed almost entirely in theory, its physical manifestation being only a pack of cards, blank except as to the employees' names. It existed in potentiality rather than in fact. And the finding would have to be qualified further by point- ing out that there is no evidence this potential effect of the system-or for that matter, even the bare fact of its existence-was known to the Union or the employees. In theory, the system worked as follows: (1) A. "Department Record" card was filled out as to each employee's name at the personnel office and sent to the department to which he was attached; (2) it was kept, in blank, in the office of the department overseer so long as the employee remained in that department ; (3) on any form of severance-voluntary or involuntary-blanks were checked as to the employee's rating in workmanship, attitude, and quantity, the card was signed by the overseer and sent back to the personnel office; (4) there, the employee's rating in attendance was checked; (5) the ratings given by the over- seer were reviewed and sometimes revised by Farrell and Gross; and (6) the card was retained, thereafter, in the personnel office. As has been stated, the employees were rated on four characteristics: work- manship, attitude, quantity, and attendance. There were three possible ratings in each : good, fair, and poor, designated by initials, "G", "F", and "P". (The cards also bore the letters "VG" and "E", but the ratings "Very Good" and "Excel- lent" were never used by Respondent.) The ratings were carried over into a numerical grade. For this purpose, "G" had the equivalent of 2.0; "F", of 1.0; and "P", 0.0. The figures thus derived from the four ratings were added and the sum divided by four to obtain the final grade. Under this procedure, it is apparent that each of the four rated qualities was of importance equal to that of the other three in determining the grade. This is significant, in view of Gross' testimony that eligibility for recall was decided by the numerical grade, all who had less than 1.2 being eliminated. It should be noted that length of service played no part toward the result. One step essential to the evaluation of the system is to discover the definitions of the four characteristics. Gross defined them : Workmanship. The ability and skill, plus the initiative, to do a certain job. Attitude. Willingness to cooperate with supervision. Quantity. The volume of production produced by an employee relative to the standard set for such job. Attendance. The proportion of available time worked. It is graded from the number of days worked in the number of days that were available for various employees to work. At the November 6 meeting, Constangy admitted that attitude was "a very weak point," and at the hearing a great deal of time was taken in elaborating its weakness. As defined by Gross, the decisions under it must have been made 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD upon a basis almost entirely subjective of the overseer who made the rating.27 Nor does this defect appear to have been cured by the fact that the ratings were reviewable by Farrell and Gross. That merely substituted their subjective opin- ion-in the cases they subjectively decided to examine-for the subjective opin- ion of the overseer 26 The fact that this was not a periodic rating system should be borne in mind. Where rating is done regularly there is some degree of certainty that the grades will be based upon comparable periods and similar conditions . More important, such periodic rating will reflect progress or retrogression and will, in itself, give some assurance that old-time faults are not improperly revived. And, possibly most important of all, the fact of periodicity furnishes a basis for confidence in the integrity of the ratings and their freedom from individual discrimination. There is no evidence in the record as to the instructions given the overseers regarding the system or their part in its operation ; none that they were even informed of the definitions of the characteristics on which they were rating the men under them; none as to their care or skill or experience in rating; none as to what they did, in fact, consider. Gross was asked for his explanation of a number of the individual "P" ratings in attitude and repeatedly answered that he did not know the reason for the low rating, that it had been given by the overseer. One illustration is sufficient. Gross was interrogated about the rating of one Douglas Wade, who had been given the attitude rating "P". Gross said that he had never received any report that Wade had been unwilling to co- -operate, or that he had failed to carry out reasonable instructions. His only knowledge of the grade was that it had been given by the overseer. He ad- mitted that an attempt had once been made to discipline Wade for alleged union activities within the plant; that this had given rise to a grievance proceeding and an arbitration and that this had been decided against the Company. Gross said he could not testify whether or not that episode had been causative of Wade's low rating. None of the overseers was called to explain the marks he had given 2n Further, it should be remembered that whole departments were rated simul- taneously. The overseer of the Carding Department had about 200 to rate ; the Spinning Department overseer, almost 300. In each department there were employees with varying lengths of service ; some whose employment went back to the opening of the mill in the 1920 's, and some who were hired only a month or two before the shut-down. . The overseers' ratings , it is claimed , were reviewed by Farrell and Gross. The latter described the working of their system of review . When the cards came .from the overseers, they looked them over. If they, on the basis of their personal knowledge of the employees , decided that a man had been rated wrongly, they revised his rating upward or downward . Customarily , in such cases they talked the matter over with the overseer. It seems incontestable that, in great part, the value of this review, both to Respondent and to the men as a safeguard against discriminatory treatment at the whim of the supervisors , must depend upon the 27 It has already been pointed out that several of the overseers had voiced hostility to the Union just before they were called on to rate their men. 28 The evidence contains a number of statements , attributed to supervisory employees, -quoting strong antiunion remarks they alleged Farrell had made. 29 This statement must be qualified so far as Norman , the overseer of the Maintenance .Department, is concerned. He was called as a witness and questioned in regard to the merit-rating cards of one Missildine . His interrogation , however , did not cover the points stated in the text. WEST BOYLST'ON MANUFACTURING COMPANY OF ALABAMA 843 degree of knowledge with which Gross and Farrell approved or revised the orig- inal grades. Gross said the knowledge on which they did this was that they obtained by observation of the men at work. Each of them spent about 60 percent of his time in the production departments of the mill . There were six of these departments , some of them with a number of divisions . The mill occupied two large buildings, one of two floors, the other of three . On each floor, the presence of bulky machinery obstructed vision and limited the ability to observe from any point to a comparatively small area. Further, the mill, until June 1, 1947, worked around the clock, with the employees divided among three shifts . And while it is not directly stated in the evidence , it appears these shifts were more or less permanent and not rotating. There is no suggestion in the evidence that an employee could ever learn how he had been rated, and , of course, there was no way in which an employee could protest or appeal. The rating, right or wrong, just or unjust , was final. The merit-rating done between the shut-down and the reopening of the mill in 1947 may be summarized : (1) It was done pursuant to a system that appears to have been devised for that occasion and, at least, had never had more than mere token use before that time; (2) done in accordance with subjective standards; (3) done by overseers as to whose training, instruction, aptitude or competence for such a job there is no evidence and no basis for judgment, who apparently were inexperienced in rating and many of whom had*expressed antipathy for the Union ; ( 4) done in such manner that no one-not even the personnel director who was in general charge of the system-could know what was the basis of the marks given, or even be sure that proper union activity did not become a cause of demerit ; ( 5) done at a time when there was a particularly great consciousness of conflict between company and union interests in the selections for reemploy- ment which was the ostensible purpose of the ratings ; ( 6) done secretly and maintained in secrecy , without the knowledge of the rated employees or of the Union, without opportunity to learn the grades given and without opportunity or means to protest or appeal; and ( 7) done in such a way as to permit the Employer, at any time and for any reason, to substitute another grade for the one actually entered at the time of rating. It is clear beyond the possibility of argument that it was possible to use Re- spondent's merit-rating system as an aid to or a concealment of an antiunion motivation and consequent discriminatory selections in the recall of employees to work. Gross' statement as to the part played by the employment office in the rating, "We reviewed all the grades and would suggest some changes that we thought was necessary ," seems to compel this view. h. The "merit-rating system" in operation and the recall Was the system used, in fact, as Gross testified , as a means of assuring the retention of the most efficient employees , or was it used as a means of effectuat- ing, or of attempting to conceal, an antiunion discrimination? In 1940 the Board approved a formula for determining the answer to this question. It would be expected that in a selection of employees to be laid off without regard to union affiliation the proportion of union members among those laid off would approximate the proportion existing in the .group from which the selection was made.30 30 F. W. Woolworth Company, 25 NLRB 1362, 1373 ( 1940). 844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's records show a total of 712 employees before the discontinuance of the third shift.31 Of them, 556 were on the check -off and thus were known by Respondent to be union members. Union membership thus constituted 78 percent of the group. Of the entire personnel, the group that was rated "G" in attitude totalled 490. Union members received 74 percent of these ratings . Seventy-four were rated "P" in attitude. All but 3 of these disqualifying ratings went to union members: Not all the employees listed were given a numerical grade, although all were rated in the four attributes. In 141 instances, the employee's name is followed by the words "Job Discontinued." One hundred and twenty-four of the jobs thus listed, 88 percent of the total, were held by union members. The remaining 571 were graded numerically, in addition to the ratings given them in the four attributes. Gross said the recall was made on the basis of the grades, those given by 2 .0 being taken first, then those marked 1.7, next the men with 1.5, and finally those who had received a grade of 1.2. All who were graded lower than that were discarded. The group of 571 who were graded was composed of 76 percent union members and 24 percent nonmembers. One hundred and seventy were graded 2.0. These top grades were divided, 30 percent to union members, 70 percent to nonmembers. One hundred and twenty-seven received a grade of 1.7. Seventy-three percent of these grades went to union members. Eighty-eight given 1.5; of them, union members got 75 percent. Fifty-six got 1.2, the lowest qualifying grade. Union members received 78 percent of these. Of the 441 who received grades of 1.2 or better, such as Respondent claims was necessary for reemployment, 72 percent were union members. Of the 130 who were given disqualifying grades, 115, or .88 percent were in the union. Respondent's records show 117 not recalled as to whom no explanation is given 'except as it is deducible from the accompanying grades. Eighty-eight percent of these are union members. Of the people employed at the mill when it shut down, 431 were offered reem- ployment, either when it reopened or as the second shift was put back in opera- tion. Seventy-three percent of these belonged to the Union. Some did not accept, some Caine back but later quit their jobs, some were discharged, some took a leave of absence, some died. Due to such events as these there were changes in personnel between the reopening and the time of the hearing. The final pay roll before the hearing showed a total production and maintenance personnel of 369. It seems impossible, on the evidence, to determine with com- plete exactness which of the recalled and newly hired employees are included. It is apparent that in the course of events, the percentage of union members has slightly declined still further. The proportion at the time of the hearing appears to have been about 70 percent in the Union and 30 percent nonmembers. 31 The statistics herein used are derived from Respondent's exhibit "N", which was testified to have been compiled by Gross, the personnel director , from Respondent's em- ployment records. It lists the employees by name, under their respective departments and in their respective job classifications in those departments . It designates which of the employees were on the check-off and thus were known by Respondent to be union members. It shows which were affected by the job discontinuances. It shows the ratings given each, which were and which were not given numerical grades and, in the cases of those which were graded , what their grades were. It shows which were recalled and the respective dates of recall. It shows which of the recalled employees did not accept reemployment, -which died , which were discharged , which went on leave of absence , and which resigned, between the date of the respective recalls and the time of the hearing. WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 845 It would be unfair to leave this phase of the subject without pointing to two matters that should be considered before drawing any conclusions as to antiunion motivation from the figures,and percentages given. First, it must be remembered that Respondent did in fact undergo a change of product which entailed a change in production methods. This caused the discontinuance of an entire department and of entire job classifications in departments that were continued. Many of the job classifications that were ended as a result of this change were wholly or largely filled by union members. None were wholly, and only one was majority nonunion . Second, it must be kept in mind that in making selections for recall, Respondent did not have a free hand, to be guided solely by consideration of union or nonunion adherence, even in those classifications in which there was an .adequate number of nonunion members. It had to keep in mind the necessity to maintain a staff capable of meeting production requirements. In 1S of the job classifications which Respondent had to fill upon the reopening of the mill, all of the incumbents were union members. In many more there were not as many nonunion members as there were places to be filled. The General Counsel, however, did not so much seek to prove discriminatory individual selections among the rank and file of union members as to demonstrate an antiunion motivation of the merit-rating system and the recall through their operation upon the Union's leadership. For this purpose he selected 36 named employees, shown by the evidence to have been leaders in union activity, and pointed out how they fared at Respondent's hands32 Seven of the 36 were rated "G" in attitude ; 20 "P". Twenty- nine of the 36 were given numerical grades in addition to the ratings. Nineteen of the 29 received less than the 1.2 which Respondent says was necessary to qualify for recall. Of the entire group of 36, 7 were listed with the notation "Job Discon- tinued" and 10 were recalled-7 of them when the mill reopened and 3 when the seeond shift wa§ reinstituted. Respondent denied-by implication, at least-that it had knowledge of the Prominence in union affairs of some of the group. It is, of course, true that a claim of discrimination on account of union leadership cannot be maintained except it be shown the employer knew who the leaders were." Respondent's denial of knowledge goes only to a few of those named. The great majority were officers of the Union whose names and status had been notified to Respondent. The others were shown to have participated in overt collective action. Here, the company officers, the supervisory employees, the secretarial force, and the guards lived together with the rank and file employees within the narrow confines of a small mill village. Beard even roomed in the house occupied by one employed couple. Farrell and Gross had sons working in the mill. There can be no possibility of doubt but that there existed many channels for informa- tion to flow to Respondent's management concerning union activities and per- sonalities. Nor is there more possibility of doubt that there had been many occasions tending to put these channels to use. This had been no quiescent union. In the 32 George Pearson, James Worthington, Lula McCatha, Louis Evans, Marvin Dickey, Percy Evans, Doris Evans, William Peel, Leo.Spradley, Ina Crittenden, Emmett Ursry, A. C. White, Ross Hamilton, Everett Rester, Charles Wallace, Douglas Wade, Tobie Gar- rett, Lula Barnett, Ethel Barron, C.. E. Jordan, Robert Kellum, Lavelle Owens, Hardy Evans, Obie Taylor, Raymond Thompson, James T. Moseley, Rufus Ewings, Clyde Webster, Roy May, Joseph Cook, James Crawford, Ruby Melton, Homer Hamby, Myrtle Pearson, Ruby Cook, Jesse Bradley. 33 F. W. Woolworth, 25 NLRB 1362, 1374 (1940). 846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2 years of its existence, there had been a series of unauthorized strikes and walk-outs. There had been a number of grievances. There had been many arbitrations. There had been calls upon the Conciliation Service for aid. There had been two protracted contract negotiations. There had been the serious turmoil over the July 1947 severance notices. It is incredible that Respondent did not have reasonably complete knowledge of the personnel of union leadership in the mill. i. The job diseontinuances Enough has been said regarding Respondent's notations "Job Discontinued" to require a few words more concerning the matter. There can be no question but that the Company discontinued the manufacture of fabric and disposed of the machinery required to carry its processes beyond such stages as entered the manufacture of knitting and weaving yarns. Obvi- ously, this actually dispensed with further need for a number of job classifica- tions. Nor, on the record, can there be question of Respondent's elimination of certain other job classifications through changes in job content which made the former workers incompetent to continue. An instance of this is the aboli- tion of the former classification of "Sweeper" and the creation, in its stead, of the new one "Sweeper and Oiler." This is sufficient to weaken, if not to destroy, any inference of union hostility that might be drawn from the bare mathematical fact that of 141 jobs bearing the notation, 124 were held by union members. But it is not sufficient to resolve all the doubts which arise from Respondent's use of the phrase. At least two remain. (1) There are a number of instances of recall of employees whose jobs were discontinued. They were recalled to work at jobs differing from those they held before the shut-down and, in many cases, in different departments. An instance of this is to be found in the case of Benson Campbell. When the mill closed, its "Twisting and Winding" Department had a division of "Cable Twist- ing." This division had two section men, Campbell and Tobie Garrett. Both were union members. Garrett was one of the known union leaders. So far as. the evidence shows, Campbell had no connection with union affairs beyond his mere membership. Both of the men were rated "G" in everything except atti- tude, in which Campbell received "G" and Garrett "F". Campbell was graded 2.0. Garrett was not graded but, on the grading basis Respondent claims was in effect, he was entitled to a grade of 1.7. Garrett had seniority dating from 1928, exclusive of any question of superseniority due to his union office. Campbell had seniority dating from 1941. In the change-over, cable twisting was discontinued. When the mill reopened, Campbell was recalled as a ply-twister tender. Gar- rett was not recalled. The only explanation given of his nonrecall is the notation "Job Discontinued." There are other similar cases shown by- the record ; enough of them to create a strong suspicion that the recall of persons from discontinued jobs was made, in part at least, on a basis discriminatory against those who engaged in organiza- tional activity. The record, however, is not sufficient to permit definite findings of antiunion motivation in this phase of the proceeding. (2) Certain of the "Job Discontinued" notations appear to have been made upon a personal rather than a job classification basis. That is, there are some instances in which it seems to have been not so much the job as its incumbent that was discontinued. And in some of these there are circumstances to indi- WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 847 fate it may have been union activity that was the cause. An instance of this is the case of Louis Evans, union president. Prior to the change-over Evans was employed in Respondent's Maintenance Department. Evans says he was one of four in the classification of machinists or mechanics. Of the four, he had the least actual seniority but because of his union office he had superseniority entitling him to the first position on the seniority roster. On the other hand, Respondent says. Evans was not a ma- chinist but the sole occupant of another classification entitled Welder. It is agreed that prior to the shut-down, Evans did most of the plant welding. This took about 80 percent of his time. There is no contradiction of Respond- ent's claim that with the sale of the looms the amount of welding required to be done greatly dropped, so that since the change-over not more than 20 percent of a man's time would be needed for such work.' Neither is there contradiction of Respondent's statement that since the amount of welding has so decreased it is economically advantageous to have it done by contract rather than by a mill employee. Doubt is cast upon Respondent's theory by its own listings of its job classifica- tions and descriptions of their duties, made before this proceeding was threatened. In 1939 and again in June 1947, Respondent had job surveys made of its entire mill, the latter of these in anticipation of the then impending production changes. The 1939 "Detailed Classification of Present and Suggested Job Assignments" not only contains no classification entitled Welder but specifically provides in the description of mechanics' duties, "They do . . . all the welding." The foreword of the 1947 survey indicates that the attempt was made to forecast the require- ments after the change in product. Our survey is . . . based on the mill running on other products than Tire Cord . . . This report, like the earlier one, listed no separate classification of Welder. Differing from the former one, it indicated recognition that at least the greatest part of the welding was being done by one person. The job description for Machinists read, Present. Including the Welder, there are four of these men. . . . One man works on each shift and the Welder works from 8 A. M. to 5 P. M. When necessary, they . . . do electric and acetylene welding . . . etc. Suggested. There will be three hands to carry on the duties shown above. In fact, Respondent recalled only one of the four, a man whose seniority dated from 1937. Ho was outranked, so far as seniority is concerned, by another ma- chinist, Marvy Dickey, as well as by Evans. Dickey had seniority dating from 1936. Also, as shop steward he had superseniority. Evans had actual seniority only from 1943-even though he had worked for Respondent for a number of years before that-but had the superseniority which attached to his union office. So far as the record shows, Helms, the machinist recalled in preference to them, had been guilty of no organizational activity beyond his mere union membership. Again the situation is provocative of suspicion that Respondent exercised its prerogative of control to discontinue not jobs but men and selected for discon- tinuance those who had been active in the Union's behalf. j. The list of "unjustly treated" employees At the November 6 meeting, it will be remembered, Cook suggested that perhaps some mistakes had been made in the selection of employees for recall and that 848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD perhaps it would better the situation if these cases were to be reviewed. The Union acquiesced and set about a canvass, in preparation of a list of those who desired reemployment. While it was going on, Constangy, pursuant to a further agreement reached at the meeting, drafted, on behalf of Respondent, a suggested procedure for re- viewing the names to be presented. After it had been approved by Cook he sent it to Ryan, on November 13. The proposal Contained the following: (Preamble.) It is agreed . . . that . . . the Company has selected the employees . . . on the basis of quality, quantity and volume of production, attendance and attitude.. . (3) That . . . the President of the Union and the General Superinten- dent . . . shall select the fifty most meritorious cases . . . and schedule them . . . for an opportunity to be heard. (4) Hearings shall be held by . . . a representative of the International Union and ... either the Treasurer or Attorney for the Company. At said hearing, the employee shall be entitled to state the basis of his conten- tion. . . . The Company shall state the basis upon which it made its decision in filling the position in which the employee is interested. (5) At the conclusion of said hearing, the representatives . . . shall endeavor, in good faith, to determine whether or not the employee has been discriminated against. . . . In the event of disputes between the two . . . the decision of the Company shall be final. Determinations of such hearings or dissatisfaction with the decisions of the Company, shall not be subject to arbitration, it being understood and agreed that persons being given the opportunity to be heard . . , are hot deemed to be employees of the Com- pany, but merely former employees of the Company's predecessor and, as such, have no inherent rights under the present agreement between the Company and the Union, but have only such rights as may be determined upon by mutual consent, or in the event of disagreement, by the Company as a result of this agreement. The Union acknowledged receipt of this proposal but did not sign or agree to accept it. Neither did it argue about or protest its terms. Nor did it submit a counterproposal. It proceeded with its work of collecting the names and data. On December 1, it presented to Farrell a "partial list" with about 100 names. On its presenta- tion, Farrell was told that the canvass was taking more time than had been anticipated and that the remainder of the list would be presented on completion, within a few days. Meanwhile, he was requested to start his work with this partial list. He answered that he could do nothing until the list was completed." The remaining names and data were given him on December 8, and at that time copies of the entire list were sent to Cook and Constangy. The complete list contained 144 names. When the final installment of the list was given to Farrell, he was asked for immediate action. He responded that the Union had taken several weeks and that he also had to have time ; that he would go over the list when he could and that when he had done so he would inform the union representatives. On December 9, Ryan, Evans, and Lloyd Davis went to Constangy's office in Atlanta to complain about Farrell's reception of the list. Constangy said that he would talk to Farrell and do his utmost to obtain speedy action. Ryan thought 34 See note 20, supra. WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 849 Constangy seemed encouraged by the fact the list did not run to the whole 400 or 500 who had been laid off. Certainly, he did not object to the length of the list submitted." December 16, Davis reported to Ryan that he was still unable to get Farrell to act, comment, or do anything about the list, or even to get him to go over it with the committee. Ryan called Constangy who repeated that he would talk to Farrell and get as speedy a report as possible. Constangy said that by the time Ryan could get in touch with Davis again he would have been in contact with Farrell and would have matters arranged. On the 17th, Davis again called Farrell. He had difficulty in getting an opportunity to talk with him but finally succeeded. Farrell told him : Well, Davis, I'm not a miracle man. You just submitted those lists to me about ten days ago. I got to study those things, too. Remember, you took three or four weeks to get them up. Its going to take some time. I want my Christmas holidays. I'll give you a call . right after the Christmas holidays. In this connection, it should be noted, that Farrell, in his cross-examination, ad- mitted that at the time the lists were submitted to him he had records showing the seniority dates and employment history of all the employees, and that all the information he would need in connection with the list was available to him "practically immediately." His cross-examination went on: - Q. So that actually you could have discussed intelligently these employees' records almost immediately, couldn't you? A. Yes. In the light.of Farrell's own testimony, it seems impossible to credit him with good faith either when, on December 1, lie said he could not commence work until the list was completed or when, on the 17th, he insisted that he must have time. January 7, 1948, Davis, not having received the promised call from Farrell, attempted to call him but his secretary refused to make the connection saying that he was not in. Unavailing attempts to get in touch with him continued over several days. Finally, on January 19, Davis sought to call Cook. Miss Ward, his secretary, refused to connect them and told Davis to call Constangy. Davis protested that he had already talked to him and that he had promised to get action by Farrell but that nothing had happened, in consequence of which Davis felt he "was getting the run around, altogether." Miss Ward's reply was only : Well, I'm sorry. You'll just have to contact Mr. Constangy, as he is handling the labor relations for the Company. Meanwhile, matters had developed so that the Company found it necessary to put on a second shift. This resulted in the recall of about 150 more em- ployees. Respondent did not notify the Union of this development. Commenc- ing late in December 1947, and continuing at an increasing rate through January 1948, it recalled old employees or hired new ones. As has already been noted, it took on 27 on January 19, the day Miss Ward refused to allow Davis to talk to Cook, took on 19 more in the next 3 days and another 53 in the week following. In the course of doing this, Respondent called back 34 whose names appeared on the list complied by the Union. These, like the October selectees, were chosen 85 See note 21, supra. 850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by Respondent "unilaterally," without conference with the Union, and without reference to their seniority. Respondent claims they were chosen on the basis of their "merit ratings." By calling them back, although without conferences with the Union, and even without notification to it either that it was about to or that it had done so, it seems to be Respondent's view that it complied with its agreement to review the cases of those who had been unjustly omitted from the earlier recall. This appears from Cook's cross-examination : Q. Are you positive that the Company at any time had determined not to take any action on this list until the Union was given an opportunity to act on that stipulation (Constangy's proposal)? A. Didn't we take action on it when we called them back? Q. Yes, sir, I think you did. When did you decide to do that? A. After the list had been checked by Mr. Farrell and Mr. Gross and I think they felt that there were some of those that perhaps we slipped up a little on, or where they were deserving anyway of being called back and they were called back. K. Did you inform the Union . . . that you felt that maybe you had made a few mistakes and you had therefore called back the following people ? A. No. Apparently the January 19 telephone call, when Davis tried and failed to get to Cook, was the Union's final attempt in regard to the list. At least, there is no evidence of later action in regard to it. Respondent has set forth-by implication, at least-three claims of justifica- tion for its conduct following presentation of the list to Farrell. (1) Cook's testimony, already quoted, purported to advance a view that the unilateral review of the names by Farrell and Gross and the subsequent recall of 34 was the equivalent of the agreed action. (2) Farrell and Gross testified there was an agreement to limit the list to 50 names. Their testimony purports to advance a view that the exceeding of this limitation and the failure of the Union to sign Constangy's proposal regarding the handling of the matter obviated the need to give the list any further attention. (3) Respondent, in its brief, argues that the list was not properly prepared in that it omitted the names of 73 employees who were not recalled and who had greater seniority than some of those included in the list submitted. Thus, Respondent appears to say, the Union, as the representative of all, was derelict in its duty in compiling the list and so justified the disregard of it. The evidence, however, is clear that none of these claims was advanced at the time as a reason for refusal to carry through the agreement in regard to the list. In fact, it is clear there was no refusal. There was acceptance of the list, a promise of later action, delay, yet more delay, and, finally, inaction. k. The claim of a new employer Respondent's answer pleaded "that since July 1, 1947, it has been and is now a wholly owned subsidiary of United Elastic Corporation." It went on to set forth. as one of the claims of justification of the admitted lay-offs that they were "a result of transfer of ownership of the Representative Company." 3s 36 At the hearing, Respondent stated that a typographical error had occurred in this statement and asked and obtained leave to amend the date to read, July 1, 1946. WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 851 As this claim was stated to the Union in November 1947, it was even more far reaching. Then it implied a change in the corporate identity of the employing company. Ryan testified, without contradiction, that at the meeting of November 6, Constangy said, This is a new company which is just taking over, the United Elastic Com- pany, and they feel no responsibility to these employees who used to work for West Boylston Manufacturing Company. The United Elastic Company, if it wants to exist and stay in business, roust make money, and so far as they are concerned, they owe no responsibility to these former employees. Ryan's statement of the claim was corroborated in both the proposals sub- mitted by Constangy on November 13. In the suggestion as to the handling of the list, the clause appears : It being understood and agreed that persons . . . are not deemed to be employees of the Company, but merely former employees of the Company's predecessor and, as such, nave no inherent rights under the present agree- ment between the Company and the Union .. . The companion suggestion of a seniority provision to be included in the new collective-bargaining agreement, in place of the one previously submitted by the Union, contained the phrase : last period of unbroken employment with the predecessor company which operated.the plant prior to October 1, 1947. Since the 1920's the mill has been owned and operated by West Boylston Manu- facturing Company. There has been no change in the ownership of the property, or in the management through which its operation as a business has been carried on. Early in 1946, it is true, there was a change in the ownership of the shares of stock of the Company. That was when United Elastic Corporation acquired its interest in the mill and when West Boylston Manufacturing Company became a' wholly owned subsidiary of the purchasing company. But that transaction was consummated on May 26, 1946, and the Company, after it was completed, entered into the collective bargaining agreement which was in force for the 14 months of the mill's operation prior to the shut-down. That a change in stock ownership, even of all the stock outstanding, does not work a change in corporate identity need not be elaborated. First, because of the elementary character of the proposition. And, second, because it is not claimed that a new employer came into the West Boylston picture on May 26, 1946, when the stock purchase was consummated. What is claimed is that when the mill stopped spinning raw cotton into tire cord and weaving it into fabric and commenced spinning raw cotton into knitting and weaving yarns, this change, in some way, brought into existence a new 'employer and a new employment relationship. Here was involved no change in the fundamental character of the operations being carried on. The raw material to be processed was the same after the change-over as before. The bales of cotton had to be broken and mixed and the 'cotton, when it came from the opener room, had to be carded, whether the final product was to be tire cord or knitting yarn. And, whatever was to be the product, the carded cotton had to be spun and twisted. The evidence discloses that the major changes in operations consisted in a reduction in the proportion of the product that underwent "cable twisting" and in the elimination of the final step of weaving fabric. There were, also, minor changes in the spinning and twisting processes which, however, did not materially alter them. 877359-50-vol. 87-55 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Giving Respondent the benefit of every doubt, the most these changes in opera- tion could do toward affecting his employment relationships would be to justify dropping the workers engaged in cable twisting and weaving and in culling out, on an individual basis, those spinners, ply twisters, and the like,, who proved incapable of adaptation to even the minor changes in the spinning and twisting processes. To claim, as Respondent did, that such changes as these created a new em- ployer, freed from all the obligations incurred in the past and without duty to regard any of the rights established by practice or recognized in the prior col- lective-bargaining agreements-not even those which Respondent had specifically agreed, after the shut-down, to recognize when it reopened-approaches the fantastic." It may be regarded as bearing on the good faith with which the argument of a new employer was advanced that Cook, Farrell, and Gross, each, when asked how long he had been employed by Respondent answered in- terms of years, including time before the stock purchase, time after it and before the shut-down, and time after October 1, 1947. Evidently, it was only in dealing with the Union and in relation to workers below the management level that a new company was claimed to exist. 1. Cook's communications In addition to messages sent orally by Constangy or some other intermediary and to his remarks at the meeting of November 6, at which he personally ap- peared, four written communications signed by Cook are in evidence. First, is his letter to Ryan, dated June 2S, 1947,, which has already been quoted. Second, is the three-page, single-spaced mimeographed letter sent on January 26, 1948, to all the recalled employees. It opened by quoting a letter alleged to have been received from an unnamed employee asking if it were necessary to join the Union in order to hold a job in the mill. Cook's letter went on: The answer is flatly "NO." No one will lose their job . . . for refusing to join the Union, or for joining. Nor will you have to join the Union in order to work here .. . Anyone who tells you, in order to make you join the Union . . . that you will lose your job . . . for refusing to join . . . is deliberately misleading you and trying to scare you with a lie and is also violating the laws of the United States .. . Whether you join or refuse to join the Union, or whether you stay in or get out, if you are already a member, is a question that you have the right, by the laws of the United States, to decide for yourself .. . We understand that some of you have also been told that the CIO Union has some right or power to bring "pressure on the Company" in order to get the Company to discharge you if you should get in bad with the Union by refusing to join it, or by opposing it in someway, or for not doing what the Union wants you to do. Some irresponsible people are even trying to make some of you believe that, even if the Company did not want to do that, the Union might in some way "make" the Company do it. We even under- stand that some of the Union leaders would like to have you think that is true. 87 See Northwest Glove Company, 74 NLRB 1697 (1946). WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 853 THAT IS NOT TRUE. We are determined, and the Government of the United States is determined, that that shall not and cannot happen. The Taft-Hartley Act . . . prohibits pressure and threats by a Union and pro- vides punishment for. Unions who attempt to put pressure on or threaten employees. . . . That law is for your protection. It protects your right not to join a Union or to join a Union. We will live up to the law fully and we will assist you . . . to see that anyone else who attempts to violate your rights is punished under the law . . . When we began operations under the new Company, we found that the nature of our new work was such that we would have only a limited num- ber of jobs. We, therefore, selected the people who now work for us for those limited number of jobs very carefully, so as to get the best possible workers. We took into account the. past records of employees' work in the old Com- pany. . . . There were other people whose records indicated they would not be the best employees . . . Whether or not you belonged to the Union . . . had nothing to do with your being selected for employment with the new Company . . . It is to be regretted that the CIO Textile Workers Union and the people who. were not selected seem to be quite dissatisfied with the manner ins which you were selected and with our decision that you and not them, or others whom they would have preferred, have been given the jobs available. We are sure that you will tie interested to know that, in the light of the Union's dissatisfaction, we have carefully review. our decision ; that we are still of the belief that we acted properly and in the best interest of the welfare of this Company and of its employees . . . We may have made mistakes, but we hope not . . . we hope that you, and each of you . . . will help us prove that we did not. Don't worry about your Union or non-Union status. That has nothing to do with it . . . Ten days after that letter was sent the employees, Cook wrote the following : Mr. J. E. FARRELL, Superintendent. The following word is to be given out to our employees. The Company has come to the conclusion that the Union does not repre- sent the majority of its employees, and the Company will not deal with the Union until it is convinced that the Union represents its employees by an election. Farrell caused the note to be passed about among the overseers and they, in turn, or at least some of them, exhibited it to some of the employees. On August 2, 1948, just a week before the hearing commenced in this proceed- ing, Cook caused to be posted on Respondent's bulletin board : NOTICE TO EMPLOYEES. You have our assurance that, if and when any general wage increase is made throughout the Southern Textile Industry, it will be made effective in this plant, as has been customary in the past. It seems that such a general wage increase is presently being contemplated. Whether or not it had been customary for Respondent to make effective such general wage increases, it had not been customary to post such notices. This was the first instance. There can be no question but that the purpose of Cook's letter of January 2G was to cause the recalled employees to distrust the Union. Its characterization of the union leaders as "irresponsible"; its reminder of the reemployed men 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that they had been selected by the Company and owed their recall to it, not to the Union ; its emphasis on the Union's dissatisfaction with the Company's selections by which they had benefited; its silence as to the true basis of the Union's objections to the manner in which the Company had handled the recall ; its more than implication that the Union was seeking to deprive the recalled employees of their jobs, on personal bases, in order that "others whom they would have preferred" could obtain them;-these could have had no purpose but to sow the seeds of dissension. But whatever its purpose, no matter how real its interference between the Union and the group of its present and potential members who were then work- ing for Respondent, regardless of how disingenuous its phraseology, there can be no question but that the letter, standing alone, comes within the protection of Section 8 (c) of the Act. There can be no question but that the letter was read in the light of the long course of events that had preceded it-events which have been summarized earlier in this report-and that it should be construed not as an isolated expres- sion of opinion but as only one part of a course of conduct that commenced with Cook's notice of June 28, 1947, of intention to terminate the collective bargaining agreement and that culminated in Respondent's refusal on February 11, 1948, to recognize the Union as the representative of its employees. Were this a new question, the letter, so construed and so read, might be held to be something other than a mere expression of opinion within the pro- tection of Section 8 (c). So read and so construed, it might be held to contain a covert threat of force or reprisal, a hidden but understandable suggestion of benefit. But the question is not new. The Board, in a number of decisions since the amendment of the Act, has appeared to look with disfavor on the "course of conduct" theory of interpretation of publications which appear on their face to be mere protected expressions of opinion. Cook's letter, in the case at bar, appears to the trial examiner to be indistinguishable, as a basis for an unfair labor practice holding, from a speech, approved as within the pro- tection of the Act since the hearing in this proceeding.' That speech was deliv- ered in a context of antiunion activity. It was held to be within the protection of Section 8 (c). The Trial Examiner feels bound by that ruling. in. Absenteeism Ryan inferentially admitted, under questioning by Constangy, that excessive absenteeism had been a problem at Respondent's mill for a year or two before the shut-down. At the hearing, Respondent introduced evidence of certain instances of this as, in some degree, justifying its selections for and omis- sion from recall. Two items of the evidence bear on the attendance records of the employees. (1) Twenty-four daily attendance cards were introduced, covering the attend- ance of that number of employees over the period from January 1, 1947, until their lay-off in June or July. (2) The compilation of the ratings given all em- ployees under the merit-rating system which included as one of the rated attri- butes that of attendance. There is no claim that any specific, named employee was dropped because of excessive or unexcused absences. In fact, Respondent's claim of the basis of selection for recall is that it was upon the merit-rating cards, on which attend- ance played only a limited part. It was only one of four traits, each of impor- 38 In Atlantic Company, 79 NLRB 820, decided September 21, 1948. WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 855 tance equal to the others. Further, according to Gross, attendance for 90 percent of available time gave a worker the rating of "G", 85 percent to 90 .percent of "F", and below 85 percent "P". Hence a worker who was absent 84 percent of the available time could not be rated lower for recall purposes than one who was absent 16 percent, since the latter would receive a "P" which would contribute 0.0 toward the numerical grade upon which the selection for recall was based. The evidence is not clear as to how these particular 24 cards happened to be selected for presentation. Nor does it show how they compare with others, save as that is deduced from the attendance ratings. About half of the 24 employees were occupants of jobs which Respondent's records list as having been discontinued . Two-thirds of them were employed in the Spinning Department. This is of importance toward evaluation of the cards because of the uncontradicted testimony of employees in that department that on occasion they had been asked or ordered by their overseer to lay off in order to spread work among the spare hands and that some of the absences they now found marked against them were because of this. Gross testified, it is true, that there was no company policy authorizing this practice. But he also testified that the matter of calling spare hands to work was within the province of the department overseers . The Spinning Department overseer was not called as a witness. There is evidence which may indicate that this depart- ment may have differed in its practice from the company policy. Comparison of its attendance ratings with those of the others shows that in the Spinning De- partment 33 percent of the workers were rated "P" in attendance . In Carding, the next largest department and the next worst in attendance , the "P" ratings did not exceed 15 percent . In the other departments , they were not over 10 percent. Respondent's records show that of the 571 employees whose jobs were not listed as discontinued , 108 were rated "P" in attendance and 221 were rated "G". But these records also show that these ratings were not determinative of the selection for recall . Sixty-two , or 57 percent of those whose attendance rating was "P" were in fact recalled . Fifty-eight, or 27 percent, of those whose attendance gave them a "G" rating were omitted from the recall, even though their jobs were not discontinued. In this connection , it should be noted that of the 62 recalled in spite of poor attendance, only 15, or 25 percent, were union members. Of the 58 not recalled even though their attendance had been good, all but five were members of the Union. Throughout the time covered by the 24 cards, the union contract then in force specifically recognized that absence without leave, except in emergency, would be ground for lay-off or even discharge. Bad as was the record shown by some of the cards, there is nothing in the evidence to show that Respondent ever sought to use this power. It is clear that at no time between Cook's notice of termination of the contract on June 28, 1947, and the final refusal to deal with the Union on February 11, 1948, did Respondent ever give excessive absenteeism as a reason for its attitude in any phase of the relationship. In view of this, in view of the failure to exercise the disciplinary power for unexcused absence recognized in the contract, and in view of Respondent's claim that it made its selections on the basis of the four attri- butes, the attempted justification on the ground of excessive absence, first ad- vanced at the hearing must be regarded as an afterthought. 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It should be disregarded. If it were to be considered as a valid justification, the disproportion between nonunion and union members with "P" ratings who were recalled and those with "G" ratings who were not recalled would have to be considered as evidence of illegal discrimination. n. Seniority and employee qualifications It will be remembered that while the 1946-1947 collective-bargaining agreement provided that lay-offs and recalls should be made on the basis of seniority, it also provided that this was subject to modification. As Ryan phrased the matter, But, however, not only seniority prevailed. There was also the question of qualifications. And the . . . employees who were retained had not only to have seniority but they had to be qualified to do the remaining jobs. Earlier, it has been stated that while Respondent and the Union agreed on contract phraseology in 1946, they never agreed on what the words meant. The cross-examination of Ryan by Constangy well brought out the differing positions of the parties and indicated the practice under the agreement as it existed before the shut-down. Q. Now, Mr. Ryan, I will ask you whether or not under that clause as between two employees whose seniority is different, one having greater and one having less, do you go into the question of whether one is more or less qualified than the other? A. No, the Union has taken the position that when you get to a question of whether a man is qualified, either a person is qualified or they are not qualified Q. . . . Have you ever submitted a comparison as to greater or lesser qualifications? A. No, sir, we have always taken the position that a person is either quali- fied, period, or isn't. Q. In other words, the Union is interested in whether the man can or has done the job, not whether he can do it better than another person? A. Yes, sir. Q. That ultimately is the difference between the management's point of view and the Union's point of view on that question, isn't it? A. Yes, sir. The ideological conflict thus portrayed led to the introduction of a great mass of testimony. Substantially all the 145 alleged discriminatees appeared, either in person on the stand or through stipulation, and told of the length of their employment by Respondent and of the different jobs they had performed. They testified to experience in their jobs, and in other positions in the industry, ranging from 1 to 20 years. The Board has held, "Long service is in itself an indication that an employee has performed satisfactorily." 3s Respondent did not offer any contradiction of the claims of length or nature of the services the employees had made. Nor did it attempt to show that the serv- ices of any of them had failed to meet the job standards. In its compilation of the workers' ratings it listed 55 out of the entire number who had been graded "P" in workmanship, quantity, or both ; 10 "P" in workmanship and "F" in quan- tity, 21 "F" in workmanship and "P" in .quantity, and 24 who received "P" in both. But in none of the cases did Respondent offer any statement of a factual nature showing upon what the rating was based. 89 Differential Steel Car Company, 75 NLRB 714, 716 (1948). WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 857 In connection with this phase of the proceeding, note should be made of the fact that the one serious objection Respondent claimed to see in the Union's sug- gestions for a new contract was in its seniority clause. Examination shows that it was identical with the provision in the just-expired agreement. Following Respondent's statement of its objection, Constangy submitted a 'proposal for a seniority clause. His'proposal included the following: (1) All employees recalled to be regarded as new employees on probation. (2) Probationary employees to be dischargeable for just cause, for lack of proficiency, or for inefficiency. (3) After serving for 6 months after recall, seniority to be dated back to include service before the change-over-that is "with the predecessor Company." (4) No employee to be entitled by seniority to be recalled to or retained in a job for which he is not qualified "in accordance with the standards of the Company." (5) Employees who had been called back since October 1, 1947, to be offered new jobs or vacan- cies, before new employees are hired. (6) Company standards for qualification Shall be: (a) No person employed on piecework will be considered as competent whose earnings repeatedly fall below the recognized base rate for the job; and (b) no fixer and no person employed to furnish material to piecework operators or to remove and/or to record production of piecework operators will be con- sidered competent if their failure or refusal to repair or maintain machines or to service any operation impairs the productive efficiency of any operator. By competent is also meant an employee who has demonstrated his or her ability to perform the work prescribed by the work standard in force. It should be noted that Constangy suggested no change in the scope or method of grievance procedure, in the right to resort to arbitration or in the binding character of the arbitration awards. Except for the temporary probation and the preferred position in which it placed the employees whom Respondent had already unilaterally recalled, it may be questioned how greatly the operation in practice of Respondent's proposals would have differed from that under the prior agreement. Respondent's proposal was never discussed. On November 29, Ryan wrote Constangy acknowledging receipt and saying that he had not had time to study it. The Union never, in terms, rejected Respondent's proposal and did not submit any counterproposal. In this connection Ryan's uncontradicted testimony should be remembered to the effect that an ugderstanding had been reached to postpone further negotiations of a new contract until after the list of unjustly treated employees was out of the way. The Union's attempts to get action on that list continued until the date when the Company took the view that the Union no longer represented a majority of the employees and, for that reason, openly refused to deal with it. o. The discharge of Willie Missildine40 Missildine was one of Respondent's maintenance electricians from October 1942 until the shut-down in July 1947. Throughout this period, he apparently did the work customarily done by maintenance electricians in mills such as Respondent's. This, however, is subject to the qualification that he was under 40 All the unfair labor practices alleged in the complaint, except the discharge of Mis- sildine, appear to be causally interconnected. Even though General Counsel and the Union urge such an interconnection in the case of this discharge, it does not so appear to the Trial Examiner and is thus treated separately, even though it occurred chronologically within the period of the acts hereinabove considered. 858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD instructions to call his superior if anything of a serious nature arose and not to proceed without supervision. That he did his work acceptably seems beyond question. Norman, his super- visor, rated him "F" in workmanship and "G" in the other three traits. And of the three electricians employed before the shut-down, he was one of two-and the first of them-to be recalled by the personnel office when the mill reopened. Missildine was a member of the Union, a fact which the check-off made known to Respondent. There is no evidence to indicate that he was ever active in union affairs. So far as the record shows, his union activity was limited to mere membership. His reemployment, after the change-over, commenced September 24, 1947. Norman testified that when Missildine came back to work he told him the work, would be different and would require greater competence than before ; that if his work proved satisfactory he could have the job permanently ; but that if he failed, he would be let go. Missildine denied that Norman made these state- ments. He admitted, however, that the job differed from what it was before and apparently agreed that it required a higher degree of competence. November 24, 1947, Norman told Missildine his services were no longer needed. Thereafter, Respondent retained as the sole maintenance electrician one Henley, who had been recalled a week after Missildine and who had about a month's less seniority. Henley also was a union member, was shown to be such by the check- off, and is not shown to have taken any part in union activities, beyond mere membership, either before or after the change-over. Up to the time of the hear- ing, no other electrician had been hired in the mill. Norman gave high praise to Henley's work. The complaint alleged that Respondent discharged Missildine because he joined or assisted the Union or because he engaged in collective activity. In support of this allegation, Missildine testified to three occurrences. (1) About 3 or 4 days after his return to work, he remarked, in conversation with another worker, that nonrecalled electrician Cecil Young had not been treated right. Immediately thereafter, Jimmie Farrell, the son of the plant superin- tendent, who had been only a few feet away while Missildine was talking, went into Norman's office. (2) A few days after this event, a conversation took place between Missildine and Tommy Helms, in the course of which the latter said, "I don't see why they didn't call Marvin pickey before they did me." He had more seniority." Missildine responded, "You know why, don't you? You know,. he is one of the Union's committee, one of the shop stewards." Immediately after making this rejoinder, Missildine discovered that Norman was only a few. feet away, clearly within hearing distance. (3) Four or five days after this. conversation with Helms, Missildine said, in the course of. a talk with his fellow, electrician, Henley, referring again to nonrecalled electrician Cecil Young, "They didn't do Cecil right." Again Missildine discovered that Norman was within earshot. Missildine did not fix the date of any of these remarks with exactness. Appar- ently, from all of his testimony, they occurred in the first weeks of his reemploy- ment. Thus, the latest of them must have been at least a month or 6 weeks before his severance. Norman was not asked about the Missildine conversations and no. attempt was made to contradict the testimony in regard to them. *} In the record Helms is referred to as Hellums and Dickey as Dick. WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 859 Norman testified that he let Missildine go because his work was unsatisfactory. He told of a number of specific instances. (1) In installing magnetic switches on Abbott Winders, he got mixed up in drilling the iron supports and had to drill them over again in order to place them all at the same elevation. (2) In wiring a thermal protective device where the wiring had to be put in conduit, he made so many bends in the conduit that it looked too bad to be tolerated. It was nec- essary to take it down and do the job over. (3) In installing a base plug-for use by a Coca Cola vending machine-he ran 220 volts into it instead of 110, whereby the machine was burned out. (4) When ordered to make a voltmeter check of transformers, he erroneously used an ammeter and burned it out. (5) He made such mistakes in the wiring of twister frames that the work had to be done over. Norman did not fix exactly the date of any of these errors. It is apparent that they were later in time than the conversations concerning which Missildine testified. And it is apparent that the two latest occurred in the final week or 10 days before Missildine's severance. Missildine admitted that there had been some trouble in connection with the placement of the switches on the Abbott Winders. He admitted, too, that he had run 220 volts and not 110 into the base plug. He justified himself, however, for both of these contretemps by claiming the errors were not his but Norman's for giving him faulty instructions. The other charges of bad workmanship, he flatly denied. The General Counsel had urged that Norman should be disbelieved and that full credit should be given to Missildine because "of the innate and simple honesty of the man." 42 The problem is not as simple as that. Even if it be assumed that Missildine testified with the most complete integrity, so far as he remem- bered matters ; even if it be granted that his uncontradicted evidence is all true and correct ; even if it be taken that where he and Norman disagreed he is cor- rect-and the Trial Examiner does not make all these assumptions-still there are unexplained matters which give rise to doubt as to Missildine's competence as an electrician. After all, simple honesty is not a satisfactory insulation against the force of electricity. Two hundred and twenty volts where but 110 should be, can kill a man, set fire to a building, or burn out a motor. On Missildine's own evidence, it is clear that Respondent was justified in doubts he was capable of performing the duties of the job. On Norman's story of Missildine's record on the job after the recall-which the Trial Examiner, in the main, believes-there can be no question that there was good ground for doubt. As against this, in in order to support the General Counsel's theory it is necessary to believe that Norman, or one of Respondent's higher officials, took Missildine's extremely mild criticisms so greatly to heart that he brooded over them for a month or 6 weeks and then acted. Respondent's account of the Missildine discharge seems much the more credible of.the two. There is a failure to sustain the burden of proof that the discharge, had a discriminatory motivation. p. Summaries and conclusions The foregoing discussion, like the evidence and the arguments of counsel, has gone far afield from the issues raised by the complaint and answer. It may be well to narrow the case to them. '$ The Poet Laureate said this much more euphoniously : Kind hearts are more than coronets, And simple faith than Norman blood. 860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (1) The appropriate unit: Although on the pleadings it would appear that there is some dispute concerning the appropriate unit in the case at bar, that issue was resolved at the hearing by agreement between the parties. It is found that the appropriate unit here con- sists of all production and maintenance workers other than seasonal village clean-up workers, excluding office and clerical employees, guards, and super- visory employees as defined in the National Labor Relations Act, as amended. (2) The refusal to bargain in violation of Section 8 (a) 5 (i) The original failure to bargain in regard to a union contract On June 28, 1947, Cook wrote the Union notifying of Respondent's intention to terminate the then existing collective-bargaining agreement on its expiration, August 1, and stating a willingness to discuss the terms of a new contract "as soon as we have been able to ascertain exactly what our status will be under the changeover." It has been found that by September 15, 1947, Respondent knew definitely what the weekly production requirements would be and the number of employees that would be needed. . It did not notify the Union of this. Two weeks later Respondent recalled the employees it had unilaterally selected, on a basis other than seniority, from among those who were working before the shut-down. In the interim between Cook's letter and the date when he admittedly knew what the status would be, his office received a letter and a telephone call from the Union requesting the opening of contract negotiations. The letter was never answered. The telephone call brought forth a reference of the matter to Con- stangy. Thereafter, in that interim, repeated requests were made of Constangy that negotiations be commenced. They led to his letter of August 12, 1947: It will be approximately November 1st before we will be able to reopen the plant. . . . As I have indicated to you, the Company is prepared to advise you sufficiently far in advance of the time that we are, certain that we will begin operations of our intention of reopening, in order that at that time we may sit down together, confer and negotiate on the terms and conditions of the new agreement. Respondent did not abide by its word thus given. It reopened the mill a month earlier than the date it had given, without prior notice and without op- portunity for negotiations in advance of the reopening. On October 10, 1947, immediately after the Union learned that the mill had reopened, it mailed Respondent its proposal of a new agreement. Constangy answered, in complete contradiction of Cook's promise of June 28 and of his own letter of August 12. I have made it clear to you that we would not be in a position to negotiate a complete contract until we have had some experience in operation under the new system and the plant is somewhat manned. I definitely will not be in a position to discuss your proposals, or anything like them, on Tuesday . . . No meeting occurred until November 6. Then it was agreed to postpone nego- tiations until after the problems had been delimited by the compilation and dis- posal of the list of nonrecalled employees who desired reinstatement. The Union compiled the list and submitted it to Respondent's superintendent, Farrell. In violation of the agreement, he did not meet with the Union concerning it. He postponed action and gave excuses for delay. Thus he thwarted, for almost 2 months, the commencement of contract negotiations. WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 861 In the period while the list was being compiled, Respondent submitted a coun- terproposal to be substituted for the Union's suggested seniority provision. In submitting it, Constangy wrote : Enclosed is my revision of the seniority clause, which I am certain is the least the Company will take. He did not request discussion of its terms or in any way intimate that modifica- tion would even be considered. He knew that his proposal was one the Union would not and could not accept. It was based upon the unacceptable and untenable proposition that a new employer had come into the picture and that all the rights, obligations, and expectations based upon the practices of the past, were nonexistent, save as Respondent, as a matter of grace, should deign to recognize them. It provided that all employees recalled would enter with the status of probationers ; that at the end of the probationary period, their seniorities would date back to the time of recall, after October 1, 1947; and that only after 6 months' employment, after that date, would they be credited with seniority for service before the shut-down. In operation, this would have ratified all Respondent's selections for and omissions from recall. It would have compelled the Union to waive all its objections to Respondent's past failure to observe seniority principles. It is impossible to believe this proposal was submitted in good faith in a real attempt to reach an agreement. Respondent's counterproposal on seniority must be regarded as made with tongue in cheek, not as a true attempt to bargain. No further moves toward a new contract were made by either party until February 3, 1948, when the Union requested that negotiations be recommenced. Then the Respondent claimed that the Union no longer represented a majority. On this record it must be held that Respondent refused to bargain concerning a new collective bargaining agreement. (ii) The refusal to bargain regarding an interim agreement. In July 1947, it became apparent that a contract could not be completed before the former one expired on August 1. This was not due to any fault on the part of the Union. Commencing immediately upon its receipt of the notice of termination, it sought to open negotiations.. It was successful in this because of delays and postponements by Respondent. July 18 Constangy stated that before August 1 the Company would either renew the existing contract or sign an interim agreement extending it until a new contract could be com- pleted. In spite of this promise, nothing was done by July 30. On that date the Union made another request for an extension of the existing agreement. Constangy said that he did not have authority to agree to it but that he would recommend it to Cook. He said also that due to the fact that Cook was then out of town, it might be necessary to go for a few days without an agreement. The next day, Constangy told Ryan that he had talked to Cook by long distance telephone and that he seemed to regard favorably the proposal to extend the contract. On August 7, 6 days after the old agreement had expired, Respondent refused to extend or renew the agreement. This is of particular importance in this proceeding for-as Respondent then knew but kept hidden from the Union- it was about to make its selections for recall.. There can be no doubt, in the light of the record, but that the failure to make an interim agreement was deliberate on Respondent's part as an element of a plan to obtain freedom from the contract requirement that recall be made according to seniority. 862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Clearly, by delay, inaction, and finally by flat refusal, there was, on Respond- ent's part, a refusal to bargain in regard to an interim agreement. (iii) The failure to bargain in regard to severance In July 1947, Respondent sent severance notices to the employees, terminating some and laying off others. The selections for termination or lay-off were not in accordance with seniority or in accordance with the provisions of the then existing collective bargaining agreement. When the Union went to Gross in regard to this, he assured that "terminate" did not mean permanent severance. When it then went to Constangy, he said there was nothing to worry about, that the Company would recognize seniority as before and that the provisions of the contract would prevail. He followed this by his letter of July 24 in which he said, We, of course, recognize that there are people on the second and third shifts with greater 'seniority who will be able to bid out or bump some of the people who are presently on the first shift. In spite of these assurances, the selections for recall were not made on the basis of seniority but by Respondent's unilateral choice. The decision to aban- don seniority was made within a week or two after Constangy's letter of assur- ance but no notice of the change in plan was given the Union. It did not learn of it until the notices of recall were received by the selectees about the 1st of October, 1947. On October 16, the Union wrote to request a conference in regard to the recall and seniority. On October 21, Respondent wrote the nonrecalled employees informing them that their status must be changed, effective immediately, to "that of termination." The next day, after that was done, Respondent answered the Union's request and agreed to a conference to be held November 6. At that meeting, Respondent took the view that the employees who had not been recalled were "through"; that they were without rights in the matter ; that they were mere former employees of a predecessor employer. One can refuse to bargain other than by a flat refusal to confer. It is as effective to.assure a union that there is nothing to worry about, that its rights will be recognized, that its desires will be fulfilled, and, when the time comes for action to disregard the assurances. It must be held that Respondent refused to negotiate in regard to the severance notices and the fact of severance. (iv) The failure to bargain in regard to omissions from recall At the November 6 meeting, Cook suggested that a review might be possible of ,the cases of the employees omitted from recall who believed they had been un- justly treated and who desired reemployment by the Company. The Union started immediately to interview the omitted employees and to compile a list of those desirous of recall, together with the employment data concerning them. While it was doing this, Constangy prepared and submitted a proposal 'of ma- chinery for handling the matter. This accompanied his suggested seniority pro- posal, referred to above. This, also, was based on the proposition that there was a new employer, that the employees were without right in the matter, and that any benefit they might receive would depend upon Respondent's whim. It could not have been believed that the Union would accept the proposal. The Union went ahead and completed the list. It was presented to Farrell by December S. He accepted it but never met with the Union's representatives concerning it. He repeatedly was asked for action and repeatedly insisted on postponement and delay. He gave the Union the excuse that he had to have time to study the mat- ter. But, when on the stand, he admitted that he had had available all the WEST BOYLST'ON MANUFACTURING COMPANY OF ALABAMA 863 data he needed and that he could have acted immediately. Further, according to Cook, he did study the list and used it unilaterally, as a basis of recall of 34 named on it when the second shift was reestablished. That this second shift was to be created was hidden from the Union. Cook and Gross both had stated there was no possibility of it in the foreseeable future. The recalls to it, of more than were included in the list, were made during the period Farrell was refusing to meet with the Union. By this inaction, delay, and postponement, Respondent effectively refused to bargain in regard to the list of nonrecalled employees. (v) The final failure to bargain regarding a Union contract On February 3, 1948, the Union again requested that Respondent meet with it and commence negotiations for a new collective bargaining agreement. In answer to this, on February 11, Constangy wrote : ... the Company respectfully declines to recognize the Textile Workers Union of America, CIO, as the collective bargaining agent for its em- ployees . . . The Company entertains serious doubts that your Union does represent its employees, particularly in the light of the fact that you and other, representatives of your Union have, for several months, continuously sought to deprive the employees of this Company of their employment, and to have them replaced in the employ of the Company by other persons who are not presently employees of this Company. It is obvious to the Company that the interests of your Union are contrary to the interests of its employees and that it does not actually represent its employees, or their interests. . . . it would not be proper for us to meet with or bargain with you or other representatives of your organization. Prior to the shut-down, Respondent's records show, almost 80 percent of the employees were union members. Against the charge of antiunion discrimination in the recall, Respondent sought to show it had selected members and nonmembers in about the same proportions as before. The records it submitted show that of those recalled 73 percent were, or at least had been at the time of the check-off, union adherents. The record contains no word of evidence to support the claim that the 5 months between the recall and Constangy's letter saw such a change of heart among the employees as to transform this overwhelming union majority into a minority. It may be doubted, in the absence of evidence, that such a change actually curred. But if it be assumed that it (lid, what brought it about? Respondent says the cause lies in the Union's misrepresentation of the employees. Not so. If, in fact, there was such a change, it was brought about by Respondent's series of refusals to bargain-in regard to the interim extension of the agreement; in regard to the July 1947 severance notices ; in regard to the selections for recall ; in regard to the list of omitted employees ; and in regard to a new contract. It was brought about by Respondent's deliberate abandonment of seniority as the basis for recall-in violation of its pledged word-and the consequent reemploy- ment of men with lesser seniority, thus driving a wedge between them and the Union which was committed to seniority principles. It was brought about by Respondent's series of acts, to be summarized hereinafter, which Ryan, in his testimony, aptly described by the phrase "the campaign to demoralize the Union." The evidence is clear as to what Respondent did. It is equally clear that these acts were motivated by hostility to the Union and were committed with the intent and purpose to weaken and destroy it. 864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The law is settled. An employer cannot by his own wrongful acts bring about a loss of union majority and use that loss as a justification of a refusal to bargain.43 On the record it is clear beyond question that from and after June-28, 1947, Respondent has refused to bargain with the Union, in violation of Section 8 (a) i of the Act. (3) Interference, restraint, and corecion No argument is needed in support of the proposition that a refusal to bargain in violation of Section 8 (a) 5 is, in and of itself, an interference with the guaran- teed rights of employees and, hence, a violation of Section 8 (a) 1. Especially is that true where, as here, the refusal to bargain is not one single act but a long series of acts extending over a period of months and including many different phases of the employer-employee relationship. The foregoing discussion of the refusals to bargain is sufficient to show that it must be found Respondent inter- fered with, restrained, and coerced the employees in the exercise of their right to self-organization guaranteed by Section 7 of the Act. But that discussion does not cover all the elements of forbidden interference above found. Commencing in June 1947, with Cook's notice of intention to ter- minate the union contract and continuing until the latter part of January 1948, just before Respondent openly refused to deal with the Union, alleging that it no longer represented the employees, Respondent carried through a course of ,Conduct destructive of the Union's prestige and reputation among the workers for effectiveness and of the union officers' credit for reliability. The separate acts which combined to create this course of conduct have all been portrayed earlier in this report and need not again be described in detail. Here it is only necessary to refer to them. The acts compose a pattern six times repeated. in June, July, and August, 1947, Respondent promised, through Cook and Con- stangy, that it would negotiate for a new contract. These assurances were given the union leaders that they might be passed on to the rank and file of union mem- bers. After this was done, Respondent reopened the mill without giving an opportunity to negotiate. In July 1947, Respondent's severance notices raised a great turmoil. Respond- ent, through Gross and Constangy, assured the Union's officers that the forms adopted contained nothing sinister, that the seniority would be followed, and that the contract would prevail. After the trouble was ended by the passing on of these assurances, Respondent terminated workers' employment without, regard to seniority. Respondent, acting through Constangy, wrote Ryan on July 24, 1947, that employees would be able to exercise seniority and that Lien with greater seniority would be able to bid out or bump men with less. The very purpose of the letter was to permit assurance to be given the entire union membership. Even while this was being done, Respondent adopted a method of selection which ignored seniority. Throughout July 1947, Respondent again and again assured the union leaders that if a new contract was not completed before the old one expired, an interim extension would be granted. The union membership was told of these assurances in order to quiet the unease which the announced indefinite shut-down and the approaching contract termination combined to create. Six clays after the contract expired, Respondent stated that it would agree to no extension. 4 Frank Brothers Company v . N. L. R. B., 321 U. S. 702, 705; Continental OR Com- pany V. N. L. R. B., 113 F. 2d 473, 480-481 (C. A. 10). WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 865 On August 7, 1947, Respondent, acting through Constangy, volunteered to Ryan that he could tell the employees not to worry about evictions from houses in the mill village, even if they were unable to pay the rent while the mill was closed. Almost immediately after Ryan passed this assurance on to the workers, a few eviction notices were served. In response to protests, further promises were made that this would not recur. And again, just after the word was publicized in order to calm the newly aroused fears of the employee-tenants, a number of further eviction notices were served. At the meeting of November 6, 1947, Respondent agreed to review the cases of the nonrecalled employees who desired reemployment. The Union inter- viewed all the omitted employees as a means of determining which desired to come back and what their work records were. Then, when the list was presented, Respondent failed to meet with the Union about it. Respondent delayed and post- poned action while it recalled others to the newly established second shift-the very fact of which it had kept secret from the Union. Thus, six times in as many different matters, Respondent caused the assurances given by the union officers to the members to be proved false. Had this occurred but once, or even twice, it might be possible to credit it to inadvertence, or at the worst, to negligence. But repeated six times, over as many months, and in as many phases of the employment relationship, it is im- possible to find other than that it was a deliberate course of conduct, motivated by hostility to the Union and intended to destroy the confidence of union mem- bers in the organization and its officers. One would hesitate to base a finding of deliberate attempt to mislead solely upon a mere single inference, even so strong a one as is created by six repetitions, were it not bolstered by other facts of record. Here, it has unquestionable support. It is buttressed by the undisputed and indisputable fact that Respondent adopted inconsistent positions and changed its attitude, to its own advantage and to the detriment of the Union, without notice to it. On June 28 and again on August 12, Respondent promised, in writing, to negotiate as soon as it knew its status and before the mill reopened. In October, a month earlier than it had told the Union, it reopened without notice .and wrote that it would not bargain until the mill was remanned. By the time the manning of the second shift was completed, Respondent took the view the Union no longer represented the employees. The finding is further buttressed by the fact that in July 1947, five of Respond- ent's supervisors made statements that after the reopening there would be no seniority, no contract, no Union. Had it been only one, the remark might be dis- regarded. But it is incredible that five would have spoken to identical effect had not some emanation from Respondent's top management purported to war- -rant it. It is of interest to notice the dates of these statements in comparison with those of some of Respondent's assurances to the Union. Strickland and Fisher made their remarks in the early part of July, about a week apart but both between the date of Cook's letter, promising to negotiate as soon as Respond- ent knew its status, and Legare Davis' promises of July 15, made on Con- stangy's behalf, that negotiations would begin in a few days. Tisdale's state- ment of July 19 and Norman's of the 22nd came between Constangy's promise of July 18 that recall would be according to seniority, that the provisions of the contract would prevail, and that the Union had nothing to worry about, and his confirmatory letter of July 24. Beard's statement was not dated more closely than "sometime in July, 1947." 866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The complaint charges that Respondent interfered with, restrained, and coerced the employees in the exercise of rights guaranteed by the Act, through Cook, Strickland, Fisher, Beard, and Tisdale, by statements discouraging union activity and membership, by interrogating employees concerning union affairs and activities, and by urging employees to withdraw from the Union for their own benefit. There is a complete absence of evidence of interrogation of employees. There is no evidence of promise of self-benefit through abandonment of the Uinon, except as such a promise might be inferred by construing Cook's letter of Janu- ary 26, 1948, together with Respondent's preceding course of conduct to contain more than its mere words directly state. As has been stated, that inference seems barred by controlling Board decisions. There is uncontradicted evidence of statements by all the others named which show that they personally did not like the Union and that they believed Respondent was going to oust it from the mill. But none of the remarks seem inherently coercive. Nor is there a sufficient evidence of context to afford a basis of construction giving them a stronger im- plication. There is a failure to sustain the burden of proof that Respondent by the state- ments of Cook, Strickland, Fisher, Beard, and Tisdale, interfered with, re- strained, or coerced the employees. That allegation of the complaint should be dismissed. All the statements listed in an earlier section of this report as found to have been made, except the five made in July 1947, and referred to immediately above, are wholly disregarded. Those five are omitted from consideration save for the purpose and to the extent immediately above set forth. (4) Discrimination in respect to discharge and rehire Immediately prior to the changeover, Respondent had about 730 production and maintenance employees. June 1, it discontinued the third shift and in- definitely laid off the approximately 90 persons who composed it. In July, as the stock ran out, it indefinitely laid off or terminated the workers on the second and first shifts. All production ceased and the mill was completely closed July 26, 1947. There can be no doubt but that the shut-down and indefinite lay-off were based upon valid economic justifications. The loss of the contract and cessation to manufacture tire cord furnished a complete warrant. When the mill reopened in early October 1947, at the outset with 199 produc- tion and maintenance employees and when the second shift was reestablished in January-February 1948, with a total of slightly over 350, there is no question but that Respondent hired the number needed to fulfill its production require- ments in the manufacture of knitting and weaving yarns. The reduction in number, in and of itself, cannot serve as a base upon which to predicate a charge of discrimination. Nor can there be doubt of the bona fides of Respondent's discontinuance of its Weaving Department and the jobs involved in the manufacture of fabric from tire cord. This came as part of the change in process the change in product entailed. Unquestionably, Respondent was in the proper exercise of its manage- ment prerogative and exercised it in good faith when it decreased the force engaged in the cable twisting process and discontinued certain of the jobs it had maintained. And, also, there can be no hesitancy in pronouncing as validly justified the discontinuance of the jobs held by the former sweepers and cleaners and the transfer of their functions to the newly created classification of sweepers and oilers. WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 867 But this does not completely answer the charge of discrimination in the lay-off and termination, or in the job discontinuances, and does not touch upon that in the selections for recall or the general omissions to rehire. The union contract in effect in July 1947 required Respondent to apply seniority in lay-offs and to deal with the Union in all matters pertaining to conditions of employment. It provided that the published seniority rosters should be binding on all parties, that infringement of seniority rights should be processed as grievances and be arbitrable with final decision of binding effect. All these Respondent violated by its unilateral decision and subsequent action in July 1947 to lay off the members of the first shift and to terminate the others, without regard to seniority. Clearly, that decision and action constituted a grievance, processible under the contract. No proceeding was instituted because Respondent assured that, in spite of the wording of the various notices, when the mill reopened the employees would be recalled in accordance with the existing seniority provisions. The mill remained closed until after the expiration date of the collective bargaining agreement. When, after that date, the Union complained about the failure to grant an extension, Respondent repeated its promise to call back the workers in the order of seniority. It did not do so. From Cook's testimony, the conclusion is inescapable that the refusal to negotiate an interim extension or to bargain about a new agree- ment were for the deliberate purpose of avoiding the Union's known intention of insisting upon customary seniority principles. Respondent specifically admitted that it paid no attention to seniority. From among those laid off or terminated it unilaterally selected the number of em- ployees it needed, wholly without regard to their respective positions on the seniority rosters or to their length of service before the shut-down. Respondent claims it did this solely for the purpose of obtaining the most efficient employees and that it sought to accomplish this end by recalling those with the highest grades on their merit-rating cards. It is apparent, however, that there were no such grades in existence at the time. The rating and the selection for recall were simultaneous. Hence, it is clear that the grades were not a basis for reliance but must be regarded only as an attempted justification of the individual selections made. At the most, they only show how someone in Respondent's management claims subjectively to have evaluated each employee in regard to four indefinitely defined qualities of workmanship, attitude, quantity, and attendance. There is no evidence of the standard by which any of the first three were measured. There is no evidence regarding the past performance of any employee in relation to any.standard or in comparison with other employees. There is clear evidence that the rating system both could have been and may have been so applied as to cause low grades to result from proper union activities, from the exercise of rights guaranteed by the Act. And there is the direct admission that ratings were changeable, upward or downward, on the judgment or at the whim of the superintendent or the personnel director, and that some, in fact, were changed. There is, further, the undisputed fact that not only the grades but also the fact that they were being given were kept secret from the employees, thus denying all opportunity to appeal. It is impossible to believe that the selections for recall were actually based on the merit-rating system, or that it is, or was, or was believed by Respondent to be either a measurement or reflection of the employees' respective, comparative efficiency. 877359-50-vol. 87-56 868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Further, it must be held that Respondent was in error in its belief that it was free, merely because the expiration date of the union contract has passed, by unilateral action to disregard established seniority rights and act in derogation of them. Here, this belief was wrong for at least three reasons. First. Respondent repeatedly stated an intention and purpose to apply seniority according to the contract ; stated that the "termination" notices did not mean what they purported to say ; assured the Union that it had nothing to worry about since, if a new contract was not agreed upon, the old one would be extended. It made these statements and assurances with the purpose of inducing the Union to forego actions which it then had legal right to take. Respondent concealed from the Union its plan to recall on a basis other than seniority. It gave the Union a later date as the estimate for reopening, stating it would give ample notice and negotiate before the fact occurred. Then, it reopened the mill at an earlier date, without notice and without prior negotiations. It remanned the plant with the employees it unilaterally selected, without conference with the Union and without regard to seniority. The evidence contains every element required to create an estoppel in pais.4 As against the Union, Respondent must be held estopped to deny the continuing existence of the seniority provisions of the 1946-1947 collective bargaining agree- ment through the period from August 1 until the remanning of the mill is completed. Second. Although seniority rights-as legally recognized claims to preference, in distinction from mere emotional reactions which attach to long service-do not arise apart from statute or contract, it does not follow, as Respondent be- lieves, that they wholly disappear upon the mere expiration of the contract which created them. Seniority rights are rights which by their nature endure as long as the employment does and become more and more valuable in protecting that employment and enhancing its benefits. Ordinarily, one of their most im- portant functions is to give a measure of security to the job. To have seniority rights for a year may not be an impossibility, but it is almost a contradiction in terms." It is settled that seniority rights do not vest, in the sense that they may not be modified, even to the detriment of individual holders, when the collective-bar- gaining representative agrees to the modification in fulfillment of its duty as trustee and representative of the entire unit for which it acts. But there is no authority to support Respondent's doctrine that an employer by mere delay to negotiate or extend an agreement can destroy seniority rights created and recog- nized as customary by both employers and employees. Were that theory to be upheld, an employer could nullify seniority rights, no matter how well established and how long they had been relied on by the workers at the end of each contract period. A question of their modification would no longer be a true subject of bargaining. The employer by a day's delay after the contract expiration could automatically end seniority and force the union to accept only what he was willing to give, under penalty of forfeiture of any right until agreement was acceded to his terms. " See 19 Am. Juris. pp. 640-667, and cases therein cited. 45 The quotation is from the dissenting opinion by Jackson, J., in Trailmobile Company v. Whirls, 331 U. S. 40 (1947) ; see also, Primakow v. Railway Express Agency, Inc., 56 F. Supp. 413 (1943). WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 869 Third. Even if the contract. were held to have expired on August 1, its ex- piration did not end either the Union's representation of the employees or Respondent's statutory duty to take no action affecting them motivated by union hostility. On the facts disclosed by the record, it is apparent that Respondent's refusal to follow seniority and its action in secretly and unilaterally selecting employees for rehire were to create a situation in which (a) the recalled em- ployees would owe their jobs not at all to the Union but solely to Respondent; by which the Union, by insisting on customary seniority, would be forced into the position-at least ostensibly-of opposing the interest of its own employed members; and (b) in which, through an election at which only those whom the Company had recalled and whom the Union apparently had opposed would be entitled to vote, it would be probable the Union could be defeated and organiza- tion of the workers destroyed. The disregard of customary seniority by Respondent was only one step in a scheme to defeat the rights which the Act guaranteed to employees. It was an integral part of a planned interference with the employees' exercise of their right to organize and be represented by a representative of their own choosing. It must be held that the violation of the repeated promise to select men for recall according to seniority and pursuant to the provisions of the contract, the unilateral selection by Respondent of workers on another basis, unilaterally determined upon and administered, the refusal to rehire workers with greater seniority, and the failure to give the omitted persons, or the Union as their rep- resentative, an opportunity to invoke the established grievance procedure, united to constitute discrimination in regard to hire or tenure of employment for union membership and activity, in violation of Section 8 (a) 3 of the Act. This holding does not depend upon a showing of disproportion of union mem- bers among those recalled. It rests, as stated, upon the fact that the method of selection adopted by Respondent was picked in an attempt to destroy the Union and was administered by Respondent to that end. In fact, before the shut-down the union membership constituted 78 percent of the production and maintenance personnel. After the reopening it still con- stituted 73 percent of the recalled employees. It is not believed so small a reduction of the Union's proportion is sufficient to be regarded as evidence of discrimination.' Under some circumstances, the fact of a closely proportionate recall night be regarded as evidence negativing the absence of a discriminatory intent. That is not true in the case at bar. Here, Respondent had to recall not employees generally but workers in specific job classifications. In 18 of those in which it rehired workers at the very reopening, every person belonged to the Union. In many more, the nonmember workers were not sufficient in num- ber to fill Respondent's production needs. It seems clear that Respondent did not attempt to destroy the Union by the method of omitting to rehire rank and file union members. On the known facts, it must have been apparent this could not be done if production demands were to be met. A different picture is presented when one looks at the record in regard to those employees who were known by Respondent to have been active in union leader- ship. Of 36, only 10 were recalled. It seems certain that the omission to recall the others, or at least a majority of them, was motivated.by a desire to deprive the Union of leadership and was committed in an attempt to effectuate that purpose. ' Northwest Glove Company, 74 NLRB 1697 (1947). 870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is not necessary to make a specific finding on the point. The entire recall scheme was, as has been said, an integral part of a planned antiunion course of action. It must be held discriminatory without regard to what individuals happened to be recalled or omitted from rehire. The scheme was (1) to refuse to extend the old contract or negotiate a new one, by delaying to bargain until after the mill reopened and was remanned ; (2) to take advantage of the freedom of action the absence of a contract, thus caused, was believed to provide and, unilaterally, to select and apply a method of recall other than that of the contract and known to be opposed by the Union; (3) to weaken the confidence of the Union's 'membership generally in its leaders by causing repeated demonstrations of their apparent inability to obtain results and of apparent unreliability of their assurances ; (4) to force the Union into the position that by not waiving its ob- jections to the recall method adopted by Respondent and its results, it would appear in opposition to the interests of the rehired employees and thus to alienate them from the Union; and (5) when the picture was complete, to refuse recognition on the ground that the Union no longer represented the employees and, therefore, to seek decertification. It can make little difference whether to this there should be added a further step-that Respondent, in order to attain its end, omitted to rehire the great majority of those who had evidenced ability to lead in union activity, either to serve as a tacit warning to others that strong union adherence might be economically detrimental, or to paint in stronger colors the picture that the Union's continued efforts to obtain recognition of seniority was a movement by outsiders seeking to deprive the reemployed workers of their jobs. The evidence is not sufficient to show with precision and clarity which indi- viduals should have been recalled first, which later as more jobs were reopened, and which were properly omitted from rehire. Respondent has called attention to the fact that 73 were omitted from. recall but are not named in the charge or complaint although they have greater seniority than some of those included. The evidence is unsatisfactory on the subject of individual °qualifications, or lack of them, to perform certain of the jobs after the reopening. The record is insufficient in some cases of alleged job discontinuance to show whether the job truly was discontinued or the term was used merely to give an apparent justification to an individual discontinuance of employment. Upon the record, none of these doubts can be resolved. That fact does not seem of importance to the decision except as it must affect the remedial steps to be taken. Upon the record as a whole, it must be held that Respondent discriminated among its employees as to hire and tenure of employment for union membership and activity, in violation of Section $ (a) 3 of the Act. As stated earlier in this report, the evidence is insufficient to support a finding that Respondent discharged Willie Missildine for union membership or activity. The allegations of the complaint in regard to his discharge should be dismissed. 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 described 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 constitute unfair labor practices tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 871 V. THE REMEDY Having found that the Respondent has engaged in and is engaging in unfair labor practices affecting commerce, it will be recommended that it cease and desist therefrom and take certain affirmative action which the Trial Examiner finds is necessary to effectuate the policies of the Act. Since it has been found that the Respondent on and after June 28, 1947, unlaw- fully failed and refused to bargain collectively with the Union as the exclusive representative of the employees in the unit heretofore found appropriate, the Trial Examiner will recommend that the Respondent upon request bargain collectively with such Union as such exclusive representative and, in the event that an agreement is reached, embody such agreement in a signed contract. Since it has been found that the Respondent adopted a method of selection for recall which ignored customary seniority rights and did this as part of a plan to weaken and destroy the Union and, hence, must be regarded as discriminatory, it will be recommended that the Respondent offer reinstatement to and make whole those who were the subjects of discrimination. It may well have been that some of those named in the complaint, and some of the others omitted from the recall, would have been omitted absent discrimination. It was up to the Respond- ent "to disentangle the consequences for which it was responsible from those from which it was immune," 44 and this the Respondent failed to do. Since the ideal remedy, naming those to be made whole and offered reinstatement, cannot here be recommended with the preciseness which is desirable, resort must be taken to some practicable device which will reasonably assure an equitable disposition of the problem. It has been found that the Respondent discriminated in selecting individuals for rehire and it has been indicated that the record affords no basis for determining precisely which of the employees suffered by reason of that dis- crimination. It is necessary, therefore, to remedy as exactly as possible the unfair labor practice in this respect both with reference to the employees as a group and each employee as an individual. This can be accomplished only by requiring the Respondent, in effect, to turn back the clock to July 26, 1947, and then to proceed to select employees for recall upon a nondiscriminatory basis, in accordance with the seniority provisions of the 1946-1947 collective-bargain- ing agreement. It is recommended that employees who by application of the contract terms were entitled to recall and who have not been rehired be reinstated and that Respondent be ordered to offer to each such immediate and full rein- statement to his former or substantially equivalent position 48 as of the date found, by applying the contract provisions as to seniority to the appropriate seniority roster and to the recall schedule which Respondent followed, to be that when he should have been reemployed, without prejudice to- his seniority or other rights and privileges he may have enjoyed and that the Respondent make each whole for any loss of earnings he may have sustained by reason of the discrimination against him by payment to each of a sum of money equal to that which each would have earned as wages, from the date, found as above stated, upon which he should have been recalled to the date of the offer of rein- statement less his net earnings during that period. It is recommended that any 4' N. L. R. B. v. Remington Rand, Inc., 94 F. 2d 862 (C. A. 2, 1937), cert. den., 304 U. S. 576. 41 In accordance with the Board 's consistent interpretation of the term , the expression "former or substantially equivalent position " is intended to mean "former position wher- ever possible , but if such position is no longer in existence , then to a substantially equiva- lent position ." See Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. 872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD individuals who have been recalled by Respondent but were rehired at a date later than the one upon which they were entitled to reinstatement, as determined by the method above recommended, be made whole for any loss of seniority or of earnings he may have sustained by reason of the discriminatory delay by restor- ing to each of them the seniority and other privileges he would have obtained had he been ,reinstated upon his proper respective date and by paying to him a sum of money equal to that he would have earned as wages from the date, found as above stated, upon which he should have been recalled to the date upon which he was in fact recalled. There should be omitted from the operation of the fore- going recommendations for reinstatement all persons who were offered recall and refused work and all who were recalled and thereafter resigned , quit, or were discharged for cause . It is recommended that in the event differences arise as to the interpretation or operation of contract provisions in particular cases, or as to the application of seniority provisions to any individual, or as to the qualifications or absence of qualifications of any employee, or as to whether or not any particular job has, in fact, been abolished , the parties be remitted to the procedures stated in the 1946-1947 collective -bargaining agreement for the handling of grievances . It is further recommended that the Board expressly reserve the right to modify the back pay and reinstatement provisions if made necessary by a change of conditions and to make such supplements thereto as may hereafter become necessary in order to define or clarify their application to a particular set of circumstances not now appearing 4D By refusing to bargain with the Union, by using an unlawful method in select- ing its employees for reinstatement, and by the other violations of Section 8 (a) 1 of the Act hereinabove detailed, the Respondent has disclosed a puipose to defeat self-organization among its employees . The Trial Examiner is con- vinced that the unfair labor practices found indicate a danger that the com- mission of unfair labor practices in the future is to be anticipated from the Respondent's conduct in the past. In order that the preventive purposes of the Act not be thwarted and that the interdependent guarantees of Section 7 of the Act not be rendered ineffective, the Trial Examiner will recommend that the Respondent be ordered to cease and desist from in any other manner interfering with, retraining, or coercing its employees in the exercise of their statutory rights. Upon the basis of the foregoing findings of fact and upon the entire record in the case , the Trial Examiner makes the following : CONCLUSIONS OF LAW 1. Textile Workers Union of America, affiliated with the Congress of Indus- trial Organizations, is a labor organization within the meaning of Section 2 (5) of the Act. 2. All production and maintenance employees other than seasonal village clean-up workers , excluding office and clerical employees , guards, and 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, constitute , and at all times material herein have constituted, a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 49 See Toledo Desk & Fixture Company, 65 NLRB 1086, 1109-1110 (1946) ; enforced, 158 F. 2d 426. WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 873 3. Textile Workers Union of America, CIO, was on June 28, 1947, and at all times thereafter has been, the exclusive representative of all the employees in the above-described appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By refusing on and after June 28, 1947, to bargain with the Union, the .Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) 5 of the Act. 5. By discriminatorily selecting employees for discharge, lay-off and rein- statement from the date of the shut-down on July 26, 1947, until the reestablish- ment of the second shift in January-February, 1948, and by the continuing failure to reinstate the employees with greater seniority who had been omitted from the original selection, the Respondent violated and is violating Section 8 (a) 3 of the Act. 6. By interfering with, restraining, and coercing its employees in. the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8 (a) 1 of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. . 8. Respondent did not violate Section 8 (a) 3 of the Act, by discharging Willie Missildine, on November 24, 1947. 9. Respondent did not violate Section 8 (a) 1 of the Act, by interrogating employees, concerning union affairs, activities or membership ; nor by urging employees to withdraw from the Union for their own benefit; nor by inter- fering with, restraining, or coercing employees in the exercise of rights guaran- teed by the Act, through statements made by Cook, Strickland, Fisher, Beard. or Tisdale. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, the Trial Examiner recommends that the Respondent, West Boylston Manufacturing Company, its officers, agents, suc- cessors, and assigns shall : 1. Cease and desist from : (a) Refusing to bargain collectively with Textile Workers Union of America, CIO, as the exclusive representative of the employees in the unit hereinabove found to be appropriate ; (b) Discouraging membership in Textile Workers Union of America, CIO, or in any other labor organization of its employees by discharging, laying off, or refusing to reinstate, or by employing a discriminatory method in selecting its employees for discharge of lay-off or for recall to employment, or by discriminat- ing in any other manner in regard to their hire or tenure of employment or any term or condition of employment ; (c) In any other manner interfering with, restraining, or coercing its em- ployees in the exercise of the rights to self-organization, to form labor organi- zations, to join or assist Textile Workers Union of America, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities. for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action which the Trial Examiner finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with Textile Workers Union of America, CIO, as the exclusive representative of the employees in the unit hereinabove found to be appropriate and, if an agreement is reached, embody such agreement in a signed writing ; (b) Revoke and rescind all termination notices issued in June-July 1947, and after selecting, from among all employees laid off in July 1947, employees for reemployment as of the time of the reopening of the mill, about October 1, 1947, and thereafter according to the reemployment schedule followed by Respondent, to offer to those employees, thus selected by the nondiscriminatory methods here- inabove recommended, immediate reinstatement to their former or substantially equivalent positions and make them whole in the manner hereinabove outlined in the section entitled "The remedy" ; (c) ' Post copies of the notice attached to this Intermediate Report, marked Appendix B. Copies of said notice, to be furnished by the Regional Director for the Fifteenth Region, shall, after being signed by Respondent's representative, be posted by the Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places including all places where notices to employees customarily are posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by other material; (d) Notify the Regional Director for the Fifteenth Region in writing within twenty (20) days from the date of receipt of this Intermediate Report what steps the Respondent has taken to comply therewith. It is further recommended that unless on or before twenty (20) days from receipt of this Intermediate Report the Respondent notifies the said Regional Director in writing that it will comply with the above recommendations, the National Labor Relations Board issue an order requiring the Respondent to take the action aforesaid. As provided in Section 203.46 of the Rules and Regulations of the National La- bor Relations Board, 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 orig- inal and six copies of a statement in writing setting forth such exceptions to the Intermediate Report and Recommended 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 designate 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- WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 875 mended order herein contained shall, as provided in Section 203.48 of said Rules and Regulations, be adopted by the Board and becomes its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. Dated at Washington, D. C., this 15th day of February 1949. MERRITT A. VICKERY, Trial Examiner. APPENDIX A List of the Persons Named in the Charge and Complaint as Discriminatorily Laid Off Olen S. Dickey Clara Raley Griggs Wiley Sargent Vann Tobie Garrett Charlie Spear Booth Henry Boyd William Henry Peel Enna O. Peel Cecil Young Helen Rosalie Hamilton Bertie Mae Grier Everett Brantley Rester Ella L. Porter Ruby Harper Causey Johnie L. Burdell Ina Milton Crittenden Marvin Moxley Dickey Myrt Moses Smith Thomas O. Vinson Myrtle Irene Vincent Pearson James Walter Suggs Callie Boy Morrison Sallie Mae Reynolds Robert Dempsie Skipper Alfred L. Heath Calvin Ervin Lee Dewey Johnson Emmett James Almond Bernice L. Phillips Gennie Cauley Pelham Henry Thomas William V. Barron Leo Spradley Bennie A. Brown Charles Wesley Wallace James Jefferson Harper Fannie B. Moore Luttie Phillips Downing Bama Belle Killough Gurvis Lee Wallace Avie S. Blanton Opal A. Worthington Lorene Lee Hall Della Parilee Cos Ethel S. Barron Dollie Ottie Heath William Franklin Hamilton Melvin Miles Wade Obie C. Taylor Nina Bell Taylor George Edward James Gaynell Van Driver Ronda Bell L. Hamilton Ruth Hamilton Almond Elizabeth Thomas Willie Easter Hailer Essie Mae Allen Gertrude Davis Ollin Wallace Rose Edward Hamilton John Copeland Driver John T. Mann Ruby Young Edith A. J. Paxton Lula Davis McCatha Thomas Lee Paxton Gladys Woodruff Lee Fayte Jackson Robert Marshall Kellum Robert Everett Williams Mary V. Hopper Gussie S. Hartin Gussie B. Calloway Percy Napolan Evans Edward Lee Elmore Mary Russelle Wright Lizzie Rustin Davis George W. Couch Lena Clark Couch John M. Coker 876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Minnie Lee Coker Ada Conley Carnley I. D. Kirkland Samuel Jordan Mollie T. Crawford Mary Gunn Helms Mellon Boyd Lessie Davis Wallace Louie C. Evans Ruthie S. Knowles Jesse D. Jackson Lucille Reeves Tolley Clifton Mann Mary McKelvey Ann Lois Armstead Louise Elizabeth Boyd A. C. White Thelma Clark Jimmie Corbitt Henry C. Cummings Clara Mae Hamby Morris Cummings Carrie F. Vann Homer Monroe Hamby William D. Howard Laura H. Cummings Lacy Williams Mable Findley Howard Justice Whatley Johnnie Findley Amos Joel Causey Lois Todd Alford Jesse Bradley (Added by James Allen Hall Noble Spradley Doris E. Dickey Evans George L. Umphrey Lillian Davis Antionette James Florence James Patsy McQueen Mary Frances Richardson Mary Anna Williams Mary Jane Wright Lanie Ula Welch Luella Glass Louise Smith Bailey L. C. Jackson Ruby Ivy Cook Floyce L. Ellison Earnestine Cobb Mattie Thornton White Harris Johnson I. V. Williams Eva W. Kirkland Zue B. Hall Willie Mae Haile John H. Murray Rebecca Bolden Grayom L. Petty Lula Byrd Barnett James Ealie Short Addie Lena Short Willie Osker McGlaun Clara M. S. McGlaun amendment of the complaint at the hearing.) APPENDIX B NOTICE TO ALL EMPLOYER'S 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, as amended, we hereby notify our employees that : WE WILL NOT in any manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to self-organization,, to form labor organizations, to join or assist Textile Workers Union of America, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. WE WILL make whole for any loss of pay suffered as a result of the dis- crirninatioii, the employees discriminated against by means of the failure and refusal of reinstatement on the proper date and in the proper order following the reopening of the mill about October 1, 1947. WEST BOYLSTON MkNUFACTURING COMPANY OF ALABAMA 876a WE WILL BARGAIN collectively upon request with the above-named union as the exclusive representative of all employees in the bargaining unit described herein with respect to rates of pay, wages, hours of employment, and other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is : All production and maintenance employees other than seasonal village clean-up workers, excluding office and clerical employees, guards, and supervisors. All our employees are free to become or remain members of the above-named union or any other labor organization. WE WILL NOT discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. WEST BOYLSTON MANUFACTURING COMPANY, Employer. By ----------------------------------------------- (Representative ) ( Title) Dated --------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.