Hart Cotton Mills, Inc.

In the Matter of HART COTTON MILLS, INC. and TEXTILE WORKERS UNION OF AMERICA, C. I. O. Case No. 34-CA-149.-Decided October 9,.1950 DECISION AND ORDER On May 16, 1950, Trial Examiner Thomas S. Wilson issued his Intermediate Report in the above-entitled 'proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Board 1 has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rul- ings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following additions and modifications : 2 1. We agree with the Trial Examiner, for the reasons fully set forth in his Intermediate Report that the Respondent, in violation of Section 8 (a) .(5) of the Act, refused to bargain in good faith on and before May 12, 1949, with the Union as the exclusive representative of its employees, thereby causing the strike of May 12, 1949, and that the Respondent has continued to refuse to bargain in good faith there- after at all times with the Union, thereby prolonging that strike. We also agree with the Trial Examiner that the Respondent's refusal to bargain with respect to the matter of housing is under the circum- stances of this case per se a violation of Section 8 (a) (5) of the Act. 2. The Trial Examiner finds, and we agree, that the Respondent through the various statements of its officers and supervisors, as de- tailed in the Intermediate Report, violated Section 8 (a) (1) of the Act by threatening striking employees with loss of employment and I Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three -member panel ( Members Reynolds , Murdock , and Styles]. 2 The Respondent' s request for oral argument is hereby denied, as its brief and the record adequately present the positions of the parties. 91 NLRB No. 130.. 728 HART COTTON MILLS, INC. 729 possible eviction from their low rental homes 3 if they did not return to work and by promises of benefit to them if they did return to work. The Remedy' We shall adopt the recommendations of the Trial Examiner with the following modifications and additions : We shall order the Respondent to offer to each of those employees who had not been reinstated to the same or substantially equivalent job on the same shift he held prior to the strike immediate and full reinstatement to the same or substantially equivalent position on the same shift with back pay from December 5, 1949, the date of the Respondent's discrimination. Since the issuance of the Trial Ex- aminer's Intermediate Report, the Board has adopted a method of computing back pay different from that prescribed by the Trial Examiner .5 Consistent with that new policy we shall order that the loss of pay be computed on the basis of each separate calendar quarter or portion thereof during the period from the Respondent's dis- criminatory action to the date of a proper offer of reinstatement. The quarterly periods, hereinafter called "quarters," shall begin with the first day of January, April, July, and October. Loss of pay shall be determined by deducting from a sum equal to that which these employees would normally have earned for each quarter or portion thereof, their net earnings,s if any, in other employment during that period. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other quarter. We shall also order the Respondent to make available to the Board upon request payroll and other records to facilitate the checking of the amount of back pay due.7 $ We agree with the Trial Examiner that the newspaper stories given to the press for publication by the Respondent with respect to the low cost houses owned and maintained by the Respondent for its employees were given in order to intimidate and coerce the employees into abandoning the strike and therefore find it unnecessary to pass upon the Trial Ex- aminer's further finding that the stories were given in order to coerce the employees into abandoning their union affiliation. 4 The Trial Examiner recommends that unless David Brock is tried and convicted within a reasonable period in the future, he shall be entitled to reinstatement with back pay as provided for the other strikers , but if he is tried and convicted in the near future, and such conviction is not reversed, then he shall be barred from future reemployment with the Respondent unless the Respondent chooses to, waive its privilege. As no exception has been taken to this conditional remedy, we shall adopt it without comment. 5 F. W. Woolworth Company, 90 NLRB 289. 9 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 elsewhere, which would not have been incurred but for this unlawful discrimination , and the conse- quent necessity of his seeking employment elsewhere. Crossett Lumber Company, 8 NLRB 440. Monies received for work performed upon Federal , State, county, municipal, or other work-relief projects shall be considered earnings. Republic Steel Corporation v. N. L. R. B., 311 U: S'. 7. ' F. W. Woolworth Company, footnote 5, supra. 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, Hart Cotton Mills, Inc., Tarboro, North Carolina, 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 representative of its employees in the unit found appropriate in the Intermediate Report and set forth in Appendix A herein ; 8 (b) Discouraging membership in Textile Workers Union of America, C. I. O., by refusing to reinstate any of its employees to the same or substantially equivalent position and the same shift which they held prior to the strike, or in any other manner discriminating in regard to their hire and tenure of employment, or any term or condition of employment; (c) Theatening its employees with reprisal or economic loss because of their union affiliation, activities, or sympathies; (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Textile Workers Union of America, C. I. 0., or any other labor organization, to bargain col- lectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a con- dition of employment as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with Textile Workers Union of America, C. I. 0., as the exclusive bargaining representative of its employees in the bargaining unit referred to in paragraph 1 (a) above, with respect to wages, rates of pay, hours of employment, and other conditions of employment including housing; (b) Offer to each of those employees who had not been reinstated to the same or substantially equivalent job on the same shift he held prior to the strike immediate and full reinstatement to the same or substantially equivalent position on the same shift without prejudice 8 Minor changes have been made in the unit found currently appropriate by the Trial Examiner to conform with the amended Act. HART COTTON MILLS, INC. 731 to his seniority and other rights and privileges and make whole each of said employees for any loss of pay each may have suffered by reason of the Respondent's discrimination against him on and after the fifth day of December 1949, in the manner set forth in the section entitled "The Remedy" ; (c) Upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security pay- ment records, time cards, personnel records and reports, and all other records necessary to analyze the amounts of back pay due and the right of reinstatement under the terms of this Order; (d) Post at its plant in Tarboro, North Carolina, copies of the notice attached hereto and marked Appendix A.9 Copies of said notice to be furnished by the Regional Director for the Fifth Region, shall after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to insure that said notices are not altered, defaced, or covered by any other material; (e) Notify the Regional Director for the Fifth Region, in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. APPENDIX A NOTICE To ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT threaten our employees with reprisal or economic loss because of their union affiliation, activities, or sympathies. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organi- zation, to form labor organizations, to join or assist TEXTILE WORKERS UNION OF AMERICA, C. 1. 0., or any other labor organi- zation, to -bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that In the event this Order is enforced by a decree of a United States Court of Appeals, there shall be inserted before the words, "Decision and Order ," the words, "Decree of the United States Court of Appeals Enforcing." 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as author- ized in Section 8 (a) (3) of the Act. WE WILL orFER to the employees described below immediate and full reinstatement to the same or substantially equivalent posi- tions and the same shifts each held before the strike of May 12, 1949, without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. All the striking employees who, on December 5, 1949, had not been reinstated to the same or substantially equivalent position and the same shift each held prior to the strike of May 12, 1949. 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, hours of employment, housing, or other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is : All production and maintenance employees of the Company, excluding office clericals, foremen and supervisors as defined in the Act. All our employees are free to become, remain, or refrain from be- coming or remaining members of the above-named union or any other labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act. We will not discriminate in regard to the 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. HART COTTON MILLS, INC., Employer. Dated -------------------- By ------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT Messrs. George L. Weasler, Henry L. Segal, and David F. Condon, Jr., for the General Counsel. Messrs. Whiteford S. Blakeney, of Charlotte, N. C., and Henry C. Bourne, of Tarboro, N. C., for the Respondent. Mr. Robert S. Cahoon, of Atlanta, Ga., for the Union. ' ' HART COTTON MILLS, INC.. STATEMENT OF THE CASE 733 Upon a third amended charge duly filed on January 4, 1950, by Textile Workers Union of America, C. I. 0., herein called the Union, the General Counsel of the National Labor Relations Board,' by the . Regional Director for the Fifth Region (Baltimore, Maryland), issued its amended complaint dated January 11, 1950,2 against Hart Cotton Mills, Inc., herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (a) (1), (3), and (5) and Section 2 (6) and (7) of the Labor Management Relations Act, 61 Stat. 136, hereinafter called the Act. Copies of the complaint, the amended complaint, the various charges, and the notices of hearing, were duly served upon the Respondent and the Union. With respect to the unfair labor practices, the amended complaint alleged in substance, that the Respondent: (1) By various enumerated acts including threats to deny employees the privilege of occupying company-owned houses because said employees engaged in or continued to engage in a strike, inter- fered with, restrained, and coerced its employees in violation of Section 8 (a) (1) ; (2) on or about May 1, 1949, refused, and continued to refuse, to bargain In good faith with the Union as the exclusive representative of the Respondent's employees in the appropriate unit in violation of Section 8 (a) (5)• thereby causing and prolonging a strike which commenced May 12, 1949; and (3) on November 28, 1949, refused to reinstate 187 employees because they were mem- bers of the Union or had participated in the strike in violation of Section 8 (a) (3) of the Act. Respondent's answer to the original complaint admitted certain of the allega- tions of that complaint but denied the commission of any unfair labor practices. At the hearing it was agreed tbat'the Respondent's answer to the complaint was to be considered as its answer to the amended complaint together with a general denial of the new allegations of the amended complaint. Pursuant to notice a hearing was held at Tarboro, North Carolina, from January 24 to February 1, 1950, inclusive, before the undersigned Trial Ex- aminer duly designated by the Chief Trial Examiner. The General Counsel, the Respondent, and the Union were represented by counsel. All parties par- ticipated in the hearing and were afforded full opportunity to be heard, to ex- amine and. cross-examine witnesses, and to introduce evidence bearing upon the issues. At the opening of the hearing the Respondent moved that the com- plaint be dismissed for the reason that, while the Union had complied with the Section 9'(f), (g), and (h) of the Act, its parent organization, the CIO, had not. This motion was denied. Thereupon the Respondent moved to dismiss the paragraph of the amended complaint alleging the violations of Section 8 (a) (1) of the Act on the ground that said violations were not alleged in the charge. This motion was also denied. At the conclusion of the hearing all parties waived oral argument but reserved the right to file briefs with the undersigned. A brief has been received from the General Counsel. Since the close of the hearing, pursuant to permission granted there, the undersigned has received various letters, reports, and documents from the par-' ties which by letter to the parties dated April 17, 1950, he has ordered marked as TX Exhibits 1-9 inclusive and admitted or rejected as provided in said letter. I The General Counsel and his representatives at the hearing are herein called the General Counsel and the National Labor Relations Board is called the Board. 2 By order of the Regional Director for the Fifth Region dated January 11, 1950, this amended complaint was substituted for the original complaint dated November 23, 1949. 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD These documents so marked are hereby ordered made a part of the record of this case as provided in said letter now marked TX Exhibit 9. In addition by motion dated April 24, 1950, the General Counsel moved to amend the complaint by striking the names of Elmer Mathews and Jim Cook from the list of the striking employees allegedly discriminated against. This motion will be handled hereinafter.. It will be marked as TX Exhibit 10 and made part of the record herein. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Hart Cotton Mills, Inc., is, and has been at all times material herein, a cor- poration duly organized under and existing by virtue of the' laws of the State of North Carolina and owns and operates a mill in Tarboro, North Carolina, where it is engaged in the manufacture and sale of cotton textiles. The Respondent annually purchases raw materials in the amount of approximately $100,000 of which in excess of 50 percent is received at its Tarboro plant from outside of the State of North Carolina. At said plant the Respondent produces finished products"of a value of approximately $150,000 of which in excess of 70 percent is shipped to States other than the State of North Carolina. Frank Leslie is the president of the Respondent, Marcus W. Carter its vice president and general manager, and Fred M. Fowler the superintendent of the Tarboro plant. M. Weldon Rogers is a member of the board of directors of the Respondent. The Respondent is a wholly owned subsidiary of Ely & Walker Dry Goods Co., a Missouri corporation, of which E. P. Cave is president and for whom M. Weldon Rogers is in charge of manufacturing. The undersigned finds that the Respondent is engaged in commerce within the meaning of the Act. H. THE ORGANIZATION INVOLVED Textile Workers Union of America, CIO, is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Refusal to bargain; interference, restraint, and coercion 1. Relationship prior to 1949, unit and majority On October 29, 1945, the Board certified the Union as the representative of the Respondent's employees in a unit composed of all production and maintenance employees of the Respondent's Tarboro plant excluding office clericals, foremen, and all other supervisory employees with authority to hire, discharge, discipline, change the status of employees or effectively recommend such changes as a result of an election conducted pursuant to a consent election agreement between the Union and the Respondent. On May 11, 1946, the parties entered into an elaborate collective bargaining agreeiiient covering the hours, wages, and other working conditions relating to the employees in said unit. On May 12, 1947, and May 12, 1948, the parties executed new 1-year collective bargaining agreements covering these same employees. These latter two agreements were negotiated and executed for the HART COTTON MILLS, INC. 735 Respondent by Marcus W. Carter, its vice president and general manager in charge of the Tarboro plant. On the surface, at least, the relationship during this period between the Respondent and the Union appears to have been good.3 As no evidence was produced at the instant hearing indicating that the above- described unit had become inappropriate for any reason and, indeed, the evi- dence affirmatively indicated that said unit was appropriate as the parties themselves agreed during the 1949 negotiations upon the same unit in describing the coverage in the contract proposals offered by both the Respondent and the Union, the undersigned, therefore, finds that at all times material herein, the above described unit was, and is, the appropriate unit for the purposes of col- lective bargaining. Further, as no substantive evidence was produced at the hearing tending to show that the Union was not at all times material herein the representative of the majority of the employees in said appropriate unit4 and, indeed, as affirma- tive evidence to sustain the majority status of the Union was introduced at the hearing through the proof that of those employees appearing upon the payroll for the week ending May 14, 1949, at least 367 employees out of a total of 557 employees in said unit voluntarily had their dues checked off to the Union and further through the proof that 100 percent of these employees walked out on strike on May 12, 1949, and that a large majority of the employees in said unit remained on strike until that strike was officially called off by the Union on November 27, 1949, the undersigned, therefore, finds that on May 12, 1949, and at all other times material herein, the Union was, and now is, the exclusive representative of the majority of the employees in the appropriate unit above found. 2. The 1949 negotiations prior to the strike In accordance with the terms of the then existing agreement, the Union on March 1, 1949, gave notice of its desire to terminate said agreement. Thereafter the Respondent gave similar notice. Negotiations for the new agreement began in normal fashion on March 31, 1949, when the Union presented the Respondent with a proposed contract em- bodying some 13 changes desired by the Union from the terms in the 1948 con- tract. Most of these demands were minor. The proposed major changes appeared to be a company financed health and accident insurance coverage, a wage freeze for 6 months," an increase in the overtime payments for work per- formed on 6 named holidays, an extension of the Respondent's vacation plan, an increase in the fatigue time allowance, and a change making the checkoff au- thorizations to the Union irrevocable instead of revocable at will, as they had been in past contracts. During the discussions at this time Carter, representing the Respondent, stated that the Respondent could not afford to increase its costs at this time. In making this statement Carter was merely conveying information which he had 'Statements made by the Respondent in 1949 indicating dissatisfaction on the Re- spondent's part (luring the period in question will be discussed in more detail hereinafter. 4In making this finding the undersigned is not unmindful of the opinion expressed by Carter for the first time on October 6, 1949, stating his own personal doubt as to the Union's then majority status. The expression of such personal opinion does not constitute sub- stantive evidence. Grave doubts as to the bona fides of that opinion were raised by Carter's own refusal on October 8, 1949 , to agree to the settlement of the -then existing strike based upon an election to be conducted among the employees in that appropriate unit by the Department of Labor of the State of North Carolina. s No wage increase as such was demanded. 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD received the previous month from Al. Weldon Rogers, writing on Ely & Walker stationery. Carter also gave notice that the Respondent desired to eliminate all piecework guarantees.' In addition Carter reminded the Union that he had previously warned that, if the Union won the arbitration regarding the time of the payment of the second week of vacation provided for in the 1948 agree- ment, he would not pay such a vacation allowance during the year 1949.' At some time during this meeting Carter mentioned that the Respondent was con- sidering the possibility of selling the 230 company-owned houses which the Respondent had in its two mill villages known as Fountain Village and Hart Village. At least one of the Union's negotiators mentioned at that time that he would be interested in purchasing the house he was living in. As Carter desired time to study the Union's proposal, the meeting adjourned. On April 15, 1949, the parties met again. On this occasion the Respondent presented its first proposal in writing . In this the Respondent demanded a change in the definition of the unit;` the elimination of all guarantees to piece- workers on changes of work assignments beyond the fact that the wage rate on the' new assignment would not be set below "a fair rate of pay" ; the reduc- tion in fatigue time allowance for all workers and its elimination for fixers ; the elimination of all sections, except that granting a 5-cent per hour premium for work performed on the third shift, of section 8 of the 1949 contract dealing with overtime rates, reporting time, and holiday overtime pay ; the elimination of all vacation payments, both first and second week ; the inclusion of a new clause giving the Respondent the unilateral right to discharge any employees unable to furnish proof or assurance of physical ability to work steadily ; a clause creating union liability for strikes and the elimination of the checkoff.' Although there was some discussion of the Union's demands thereafter, the discussion at all subsequent meetings centered largely around the Respondent's proposals, as the Respondent remained adamant that there would be no increase in any cost items in the new contract. The parties were unable to reach any agreement on either set of proposals at this meeting or the one held on April 19 when Carter reiterated his earlier statement that there would be no vaca- tions in the new contract. Following these futile negotiations the parties met again on April 27 when the Respondent produced another written proposed agreement. This proposal contains the following changes from the proposal of April 15: 1. Reverted to the old definition contained in the 1948 contract of the appro- priate unit ; " 9 By the terms of the 1948 contract pieceworkers whose work assignments were changed were guaranteed on their new assignment their individual average earnings on their prior assignment for a period of 4 weeks while the rates for the new assignments were being agreed upon. T Under the terms of the 1. 948 agreement all employees who had been employed a year or more were entitled to a paid vacation of 1 week and, in addition, those employees who had worked for the Respondent for 5 years or more were entitled to a second week of vacation pay. In June 1948 a dispute arose as to whether , under that contract, the pay- ment for the second week 's vacation should be paid at the commencement of the contract or at its conclusion. The matter was taken to arbitration and an award was handed down favoring the Union's contention that such second week was payable at the commencement of the contract . The award was made in March 1949 and the payments made -promptly thereafter . Carter 's original statements , as referred to above, were made even before the dispute was arbitrated. s This demand was abandoned at the meeting of April 27. s The terms of the 1948 contract restricted the Union 's liability for strikes and allowed a voluntary checkoff. 10 This subject was never again reverted to during the subsequent negotiations. HART COTTON MILLS, INC. 737 2. Guaranteed the group average earnings of pieceworkers the "base rate" of their prior job for a period of 4 weeks after a change in their work assign- went with a number of qualifications ; 3. Eliminated all fatigue allowance for all workers ; 4. Reinstated all of section 8 of the 1948 contract regarding reporting pay and overtime pay but still provided only regular pay for holidays; 5. Granted 1 week of vacation pay to workers employed for 1 year but elimi- nated the second week for those employed 5 years or more. (This last was the issue determined adversely to the Respondent's contention in the arbitration award of March 1949) ; 12 6. Granted to the Respondent the unilateral right to discharge an employee and, in addition, required the employee to take a physical examination before a doctor of the Respondent's choice ; 7. Reverted to the 1948 contract on the no-strike clause thus limiting the Union's liability for strikes ; 8. Reverted to the 1948 contract clause on the checkoff thus permitting the voluntary checkoff as had been customary in all prior contracts between the parties. In addition to these changes in position, some of which were complete re- versals and some mere modifications of the Respondent's position as of April 15, the Respondent's new proposals added the following new demands : 1. Eliminated the clause guaranteeing employees freedom from discharge ex- cept for "just cause" and the right to grieve for the abuse thereof ; 2. Created a 60-day probationary period for all new employees. While the discussions at this and a further meeting held on May 4 centered on the Respondent's proposals of April 27, there was also some discussion regard- ing the Union 's proposals but,. with a few minor exceptions , the parties again were unable to reach any agreement. Thus these two conferences were also futile except as to those points where the Respondent had changed its position between the times of the two different proposals. With the existing contract due to expire at 11: 59 p. in. on May 12, the parties again met on May 11 with Lewis Conn, regional director for the Union, entering the negotiations for the first time. After the introductions were taken care of, 11 At one point in. his testimony at the hearing Carter contended that this section of his written proposal was in error as he had intended to guarantee "the group average earn- ings " rather than merely the "base rate." However, no notice of this "error " was given to the Union. ' At another point in his testimony Carter testified that this clause was correct as written but that the Respondent "had never said it would not pay the group average earnings ." The undersigned believes that the proposal was correct as written. The "base rate " is the hourly amount guaranteed to piece -rate workers. The "group average earnings" is the average amount earned by the group of employees engaged in work at the base rate , and is therefore always higher than the base rate. The "individual average earnings" are the average earnings of an individual pieceworker engaged at piece work at the base rate . As this figure is the average earnings of an individual included in the group, this may be more or less than the group average earnings depending upon the skill of the worker but it cannot be less than the base rate . For instance , the base rate for frame hands prior to the strike was $1.11, the group average earnings was $1 .15, and consequently the individual average earnings were both above and below $1.15. iz At the hearing Carter testified that the Respondent had never held any serious intentions of eliminating the second week's vacation pay but merely threw it into the "bargaining basket-so that it could be "discussed ." Despite this testimony regarding the indifference of the Respondent toward-this issue, the second week 's vacation pay remained one of the unresolved issues at the expiration of the 1948 contract and the commencement of the strike. 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Carter suddenly announced that he had some additional demands to make and enumerated the following : 1. A clause granting to the Respondent the unilateral right to eliminate the 5-cent per hour premium payments for all work on the third shift; 13 2. A clause deleting two of the six named holidays, thus granting the Respondent the right to operate at regular time on those 2 days, instead of 14 time and a half; 3. The elimination of the checkoff." The Union, perturbed over the introduction of these new issues or the rein- troduction of issues considered to have been solved theretofore, inquired if Carter was serious. Carter answered : "Of course, I'm serious, the contract is going to expire tomorrow night, isn't it?" After a short discussion of the various issues the parties agreed to recess until 3 p. in. the following day at the Union's suggestion that, even with these new issues confronting them, they were not so far apart that they could not settle matters the next day before the contract expired. The parties met as agreed on May 12. Although the discussion again cen- tered around the company proposals, a number of minor issues were com- promised or agreed upon or dropped by the Union. Carter stated that he would grant the checkoff if he could secure the conditions which he wanted, namely, the reduction of the piecework guarantee from the individual average earnings to the .base rate, elimination of holiday overtime pay, the elimination of the second week's vacation." and the unilateral right to eliminate the third-shift premium pay. With that statement the parties eliminated discussions of the checkoff. Fatigue time for all employees, except the fixers, was settled when the Respondent agreed to return to the allowances contained in the 1948 contract. The Union agreed to a probationary period for new workers. The discharge clause of the 1948 contract was also agreed upon. The parties then took up the question of the Respondent's demand for physical examinations of the employees. This issue remained the topic of discussion until the Re- spondent finally dropped the demand at approximately 6 p. in. Carter argued that the Respondent desired the right, without consultation or negotiation that the Union, to eliminate the third-shift premium payments so that if busi- ness conditions warranted the payments could be dropped and the mill remain "competitive" but that the Respondent did not expect to use that right." As "The Respondent's reversal of position on the items listed in section 8 of the 1948 contract was now complete. The Respondent's April 15 proposals eliminated that whole section with the specific exception that it retained this 5-cent third-shift premium payment. In the April 27 proposal, except for overtime pay on holidays, the other benefits contained in section 8, reporting time and overtime payments, had been restored as in the 1948 contract. Thus between April 15 and May 12, the Respondent had completely reversed its position regarding the benefits in section 8 of the 1948 contract except on holidays. On overtime for holidays the Respondent finally reverted to the 1948 contract clause on June 2. The third-shift premium payment and holiday overtime payment were two of the unresolved issues at the expiration of the 1948 contract. 14 Carter testified that "we thought" that the employees would prefer to work regular time on holidays than not to work at all. The facts showed, that the Respondent had customarily operated on every holiday at time and a half with one possible exception for a number of years. is This change constituted the Respondent's third shift of position on the checkoff during the negotiations. 10 This payment amounted to 2 percent of the individual' s gross annual earnings. 11 It is customary in all union contracts in North Carolina to provide for such third- shift premium. In fact the Respondent had suggested the premium itself in previous contracts. However, Carter testified that "we felt that it would certainly be to the advantage of the workers to be in a mill which was competitive and operating." Many HART COTTON MILLS, INC. 739 in all the other negotiating meetings, various and sundry compromises such as arbitration of the outstanding issues and the execution of a contract omitting the points under discussion were suggested but rejected by the Respondent. After a dinner recess, Conn went over each one of the Respondent's demands inquiring of Carter if his position had changed any or if he had a compromise to suggest. In each instance the answer was "No." Conn then turned to the remaining union demands inquiring if Carter could meet the Union's thinking on any of them and again the answer was always "No." Carter expressed himself as being indifferent as to whether or not the Union struck, as he could sell all the cotton he had in the warehouse and make more money than by operating the mill with it 38 The meeting then ended without any further agreement. At 10 p. m. the Respondent posted the following notice to the employees throughout the mill: TO ALL OUR EMPLOYEES AS MOST OF YOU KNOW, WE HAVE FOR SOME TIME BEEN NE- GOTIATING WITH THE TEXTILE WORKERS, CIO, UNION WITH RESPECT TO A RENEWAL CONTRACT. WE AND THE UNION HAVE NOT BEEN ABLE TO AGREE UPON THE TERMS OF SUCH NEW CON- TRACT AND NEGOTIATIONS BETWEEN US AND THE UNION ARE AT PRESENT SUSPENDED. ALTHOUGH THE PRESENT CONTRACT EXPIRES AT MIDNIGHT 'TONIGHT, THERE IS NO INTENTION ON OUR PART TO REDUCE ANYBODY'S WAGES OR CHANGE TO YOUR DISADVANTAGE ANY OF THE TERMS AND CONDITIONS UNDER WHICH YOU HAVE BEEN WORKING. THE UNION TELLS US THAT A STRIKE MAY NOW RESULT FROM THE PRESENT SITUATION. WHETHER YOU WANT TO STRIKE IS FOR YOU TO DECIDE. THE MILL WILL BE OPEN FOR ANY AND ALL TO COME IN AND WORK WHO WISH TO DO SO. IF ANY PERSON OR GROUP OF PERSONS THREATEN YOU, MOLEST YOU OR INTERFERS WITH YOU IN ANY WAY IN COMING TO WORK, THEY ARE VIOLATING THE LAW. IF SUCH OCCURS, GET IN TOUCH WITH US AND WE WILL UNDERTAKE TO SEE TO IT THAT YOU ARE FULLY PROTECTED IN YOUR RIGHT TO WORK. Signed : MARCUS W. CARTER, [Emphasis supplied.] Vice President. Also at 10 p. m. the union negotiators reported on the status of the negotiations at the Union's meeting which, after hearing the report, voted unanimously to strike. At 12: 01 a. m. May 13, 1949, the third shift left the plant and the strike which, even as Carter had so accurately prognosticated, was destined to be a long one lasting, as it did, until November 28,1949, had begun. times during the negotiations Carter informed 'the Union that "it seemed to (him) that whatever was good for the mill was good for the employees and that cooperation from the Union and everybody concerned" would certainly add to the welfare of everybody." Carter's solicitude for the welfare of the employees proved to be one of the stumbling blocks to the negotiation of a contract as his ideas as to what was good for the workers amounting, as they did, almost without exception to potential, if not actual, wage reductions did not coincide with those held by the duly designated representative of those workmen. " Although the print goods market was off at this time, Carter denied having made this statement. 917572-51-vol. 91-48 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Negotiations during the strike The strike was 100 percent effective so that all operations ceased. The Unions maintained pickets around the plant. On August 4, 1949, the Respondent ap- plied for, and on September 12, 1949, received, an injunction against the Union and 160-odd individuals banning mass picketing at the plant. On September 16, some few workers returned to work after an attempt had been made on September 14 to open the plant at which time the court order was read to a group of strik- ers and others in front of the plant following which over 100 strikers were found to be in contempt of the court for failing to obey the court injunction. At best, the Respondent was only able to operate 1 of the 3 usual shifts until November 28, 1949, when the Union officially called off the strike and made an unconditional offer to return on behalf of all the strikers. The first contact between the parties, after the strike commenced, occurred on May 20 when Conn telephoned Carter requesting a meeting. Carter inquired if the meeting was for the purpose of settling "the disposition of the pickets." When Conn informed him that he desired to settle all the strike issues, Carter remarked that, due to other engagements,19 he could not meet that month but, if Conn desired to do so, he could phone on May 31 for another engagement. Before the conversation ended, Carter reiterated his statement that it was going to be a long strike. Four days later, however, on May 24, the Tarboro newspaper, The Daily South- erner, carried a full page advertisement over the Respondent's signature setting forth the Respondent's position regarding the strike and certain union claims. In "answering" various charges made by the Union, the Respondent made the following statements in this ad: This year they (the Union) made new demands which we could not meet. For many weeks we have patiently negotiated with these unions explaining to them in detail how the prosperity which existed in the textile industry a year ago has now completely disappeared. * * * We have, nevertheless, told the Unions that there is no plan or intention on our part to cut any employee's wages. * * * The Union says further that we are refusing to pay two weeks vacation pay to employees who have been with us 5 years or more. This is not true. Every year we give one week's vacation with pay to all employees who have been in our employment one year or more and to those who have been with us as long as five years we give an additional week's vacation pay. This, we are willing to continue to do. June 1 is the regular date for the payment of the first week of vacation pay and although there is now no contract in effect, we will on June 1, 1949, make such regular vacation pay- ment, but only to such persons as may be on that date working in our plant 20 ..'. The Union fails to state that we hive offered to renew with it an elaborate contract containing many sections and pages of provisions, agreeing, for example, to submit to an outside arbitrator for settlement any grievance, dispute, or controversy that might arise between us and the Union in the operations of our plant, and containing full provisions governing work 19 The engagement referred to was for a tonsillectomy to be performed on Carter's child in Charlotte, North Carolina. 20 Although the phraseology in this paragraph may be ambiguous, the Respondent did, in fact, pay both weeks vacation pay when the employee returned to work. The Respondent's last offer to the Union at this time still eliminated the second week's vacation. HART COTTON MILLS, INC. 741 assignments, hours, overtime, reporting pay, vacations ; seniority, vacancies, transfers, leaves of absence, shop rules, etc. All this we repeatedly offered to renew and sign as a contract between our company and the. Union for another year. But the Union refused and shut down the mill with a strike 21 . . . [Emphasis supplied.] On May 31, Conn telephoned Carter and arranged a meeting for June 2. On June 2, Carter refused to pay the second week's vacation during the con- tract year but suggested paying it on May 12, 1950, after the conclusion of the contract year. In view of the arbitration award on this identical question and the promise made in Respondent's advertisement, this was not acceptable to the Union which offered to revert to the terms of the 1948 contract. On fatigue time, the Respondent again offered to return to the terms of the 1948 agreement. This was not acceptable to the Union as it eliminated fixers from the allowance. Thereafter, although the Union dropped one minor demand liberalizing the vaca- tion plan, the parties maintained their prior positions. In fact, Carter went beyond that by stating that, in view of the occurrence of the strike, the Re- spondent had "revised its position on two other issues" and was, therefore, demanding a clause making the Union liable for strikes 22 and eliminating the checkoff 23 as he was no longer willing "to do the Union the favor of" collecting dues for it. Conn promptly accused Carter of bringing this issue up to "punish" the employees for having gone on strike and in an effort to keep the parties apart. The Union offered to arbitrate any and all of the issues but Carter re- fused. Other compromises were suggested but none was acceptable to the Respondent. The meeting adjourned without having narrowed the issues. After the conclusion of this meeting on June 2, the Union received from the Respondent under covering letter dated June 2 another written proposal. This proposal contained the following additional changes from the proposal of April 27: 1. Reverted to the 1948 contract clause guaranteeing employees freedom from discharge except for "just cause"; 2. Reinstated the 1948 contract on fatigue time but denied any to fixers;. 3. Guaranteed the average group earnings on work assignment changes but with fewer qualifications; 24 4. Reinstated Section 8 of the 1948 contract on overtime and reporting pay but gave the Respondent the unilateral right without consultation or negotia- 21 During the hearing the undersigned interpreted this paragraph with the use of the words "renew," "for example," and "etc.," to mean that the Respondent had offered to renew the 1948 contract. On the stand, thereafter, Carter denied that the Respondent had ever offered to renew the 1948 contract and explained that this paragraph did not mean what the undersigned understood it to mean for the reason that there were other paragraphs in that 1948 contract which were not specifically mentioned in the ad. In the opinion of the undersigned, the use of the words "for example," and preclude Carter's interpreta- tion of this paragraph. The ad was, at least, misleading to the average reader. 22 This constituted the Respondent's third change of position on the no: strike clause. In the 1948 contract which Carter had negotiated, the no-strike clause protected the Union from liability for certain types of strikes. In neither of the two short strikes which had occurred during the relationship between the parties, one of which lasted an hour or so and the other a few days, was there any violation of contract. One of these strikes was caused by the Respondent's unilateral change in the wage structure without consulting the Union. 23 The checkoff, the only permissible form of union security in the State of North Carolina, is almost universal practice in union contracts and has existed in all contracts between these parties. 24 This change was extremely minor. 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion with the Union to suspend the 5-cent per hour, third-shift premium pay, with the added phraseology that "the company expects to continue paying" such premiums ; 5. Refused overtime for work performed on two of six named holidays ; 6. Reinstated the first week's vacation pay but withheld the payment of the second week until May 12, 1950; 7. Withdrew from the Union its freedom from liability for strike ; 8. Withdrew the checkoff. On June 14, the parties met again. For the Union, Vice-President George Baldanzi, made his initial appearance . The discussion , as usual, centered on the Respondent's June 2nd proposal. At this time, Carter agreed that fixers were entitled to a reasonable fatigue allowance so that it was agreed to settle that issue by authorizing the fixers a "reasonable allowance" period. The re- maining few union demands were dropped leaving the only outstanding issues those presented by the Respondent, namely : Overtime pay on holidays, the second week's vacation pay, the reduction in piecework guarantees, the right to eliminate the third-shift premium pay, the no-strike clause, and the checkoff. During the discussion of these issues which, on a number of occasions, became decidedly heated between Baldanzi and Carter, Baldanzi said to Carter: "Listen, you are not fooling us, we know what you are thinking, you are thinking you are going to take advantage of a slump in the market and beat the Union." Carter's angry retort was: "It's none of your damn business what I am think- ing."" Before the adjournment for lunch the Union offered to return to the 1948 contract. Carter laughed stating that he had offered the Union a written proposal on June 2 and that that was all he was willing to do. There was a dis- pute at the hearing between Carter and Conn as to which one referred to this proposal as a "take it or leave it" proposal. The undersigned does not believe it necessary to determine this conflict. Except for minor issues of overtime pay on holidays which is a well-established principle in North Carolina plants, third-shift premium pay, and the second week of vacation pay which Carter, according to his testimony at the hearing, never at any time seriously intended to withhold, the June 2 proposal remained the Respondent's position on the major issues of the no-strike clause, the checkoff, and piecework guarantees. The June 2 proposal turned out to be in fact such a take-it-or-leave-it proposal. The Respondent has since remained adamant on its terms. On June 27, Conn and Vice-President Marino Bishop of the Union met with Frank Leslie, the Respondent's president, in New York City, in an effort to settle the strike. This proved abortive when Leslie stated that while he was the president of the Respondent, he had no authority to deal with labor relations and consequently could do nothing about straightening out the difficulties in Tarboro. At the hearing, Leslie testified that Al. Weldon Rogers was Carter's boss as well as, "in a sense," his own boss. The July 6 issue of the Daily Southerner carried a prominent page 1 story given to its reporter by Carter concerning the decision of the Respondent to sell "in the immediate future" 70 company-owned houses in Fountain Village and the formulation of plans by the Respondent to dispose of the 160 homes it owned 29 Although Carter denied that the market had any influence upon the Respondent 's atti- tude and denied having made any remarks , attributed to him by Conn , regarding the falling market, be admitted the occurrence of the above exchange . In view of the May 24 ad, the undersigned believed that Carter was mistaken in these denials . The undersigned found both Carter and Conn to be essentially honest witnesses although Carter was rather prone to omit unpleasant details. HART C'OT'TON MILLS, IN'C. 743 in Hart Village. The Respondent rented these homes at a low rental of ap- proximately $18 per month exclusively to employees of the mill. Carter was accurately reported as saying : "We now have more houses than we need and they are too expensive to maintain. At the same time, we don't mind providing houses at a low rent for our workers, but when those persons living there are unwilling to go to work, we must protect ourselves. The rent we are getting from those houses is not enough- to maintain them, a detail we overlook while our employees are working."" [Emphasis supplied.] The story caused considerable consternation among the striking tenants. Beginning as early as June 16, 1949, the Respondent made overtures to its individual striking employees. The first of these was a letter which read as follows : JUNE 16, 1949. To the Employees of Hart Cotton Mills: It is our understanding that a great many of you want to return to work but are prevented from doing so because you cannot get through the pickets massed at the plant gates. If such is your situation, please date and sign the enclosed, paper and mail it to us in the envelope which is enclosed. Please understand that if you are out because of allegiance on your part to the Textile Workers Union, CIO or because you want to stay on strike, that is your right and privilege and we are not trying to persuade you otherwise. We are simply wanting to know how many would come in and work if the gates were not blocked by massed pickets. The blocking of the gates is completely in violation of law and we intend to try to put an end to it if enough of you, except for that, would come in and work. Very truly yours, HART COTTON MILLS, INC., Signed : MARCUS W. CARTER, Vice President. Attached to this letter was an enclosure reading as follows for the employees to sign and return to the Respondent : JUNE -, 1949. I am an employee of Hart"Cotton Mills. I want to go into the mill and work. The only reason I do not go in and work is that pickets massed in front of the gates block me from getting in. Signed------------------------ In addition to the above the Respondent also instructed its supervisory staff to approach those strikers who had worked under them about the possibility of their returning to work: Although, according to Carter, he instructed Super- intendent Fred Fowler to issue orders to the supervisory employees not "to pressure" the workers, it was inevitable that various and sundry of these supervisors should overstep these secret limitations upon their authority. A number of these supervisors stated to employees that the Union would never succeed in getting a contract, that the employees would only get their vacation 2' Carter testified that, because of'the tight housing situation in Tarboro, it was necessary for the Respondent to provide low cost housing in order to enlist and maintain a working force in the plant. 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pay if they returned to work "now," that, if they did not return to work, they would be evicted from their company houses, that there would be no employment for them if they waited for the Union to secure a contract and, at least one, was offered the blandishment of an easy job if she returned to work promptly. These conversations will be handled in more detail hereinafter. - Due to the consternation caused by the housing story, Conn telephoned Carter on July 29, informed him how upset the workers were about this newspaper article and stated that the Union wanted something about housing put into the agreement as he considered it a part of the working conditions. Carter answered that he did not feel that it was a subject for collective bargaining but would let him know the Respondent's position in the matter later. They agreed to meet on August 2. The very next day, Carter wrote Conn that "as the employees were in no position to make financial commitments with respect to purchasing the houses, we have no intention at the present of pursuing the matter further. Therefore, this being the case, any discussion of the matter would be out of order." n On August 2, when the parties met, the Union proposed a clause for the contract covering the housing situation. Carter said that he did not object to the phrase- ology but contended that housing was not a bargainable issue. When the parties got down to discussing the June 2 proposal, Carter eliminated the vacation and holiday issues by agreeing to revert to the 1948 contract clause which was agree- able to the Union. Thus, for the first time since the negotiations began, the second week's vacation issue, an issue which Carter had thrown into the bar- gaining basket merely for discussion and had promised to individual workers as early as May 24, was finally settled. Why did Carter have to wait until after the strike to eliminate that issue if, as he testified, it was so unimportant in the eyes of the Respondent? Again Conn explained to Carter the impossible position in which his demands placed the Union by removing the only security, provision in the contract, i. e., checkoff, creating liability for strikes and leaving the Respondent with the per- fect means of precipitating such a strike through the potential wage cuts possible under the proposed piecework guarantee. Again, the Union offered to accept the 1948 contract or arbitrate the issues but again was refused. When no further compromises or concessions appeared possible, Conn inquired if it were still- cheaper for the mills to remain down even after the improvement in the print goods market. Carter replied that an efficient mill could break even but that the Hart Mill was not efficient. Again the strike issues remained unsettled. Two days thereafter, on August 4, the Respondent applied to the North Caro- lina court for an injunction against the Union and some 160 individuals to pre- vent mass picketing in front of the plant. The Federal Mediation and Con- ciliation Service attempted to set up a meeting between the parties in Washing- ton, D. C., for August 10 to try to settle the strike. Respondent informed the Service that due to other engagements it would be unable to appear. On Sep- tember 12, 1949, the court issued the requested injunction after hearing the mat- ter on affidavits. The following morning, the Respondent placed another full page ad in The Daily Southerner announcing in large letters over its name that all persons 27 At the hearing, however, Carter changed his position somewhat by testifying that, as the Union had not shown much interest in the matter when it was first mentioned on March 31, he (Carter) did not think that the Union was interested. HART COTTON MILLS, INC. 745 who wished to work at the mill were protected by a court order and in smaller print the following announcement: The mill will commence operations tomorrow morning, Wednesday, Sep- tember 14, at 7:00 o'clock, A. M. We are ready to take all employees back. No matter which shift you used to work on, please report at 7:00 o 'clock, A. M. Notice is hereby given to all who do not see fit to return to work- wemust, of course, proceed to replace you and fill your jobs. Everybody's wages and other benefits will be the same as they were be- fore the strike began. [Emphasis supplied.) The last quoted paragraph offered to the employees the right to return to work on the exact same terms and conditions as existed before the strike. As this included the guarantee of individual average earnings on work assignment changes and a guaranteed 5 cents per hour third-shift premium pay , it consti- tuted a better offer financially to the individual employees than the Respondent had ever offered to the Union. On September 22, another meeting occurred between the parties. Respondent agreed to revert to the 1948 contract and guarantee the third -shift premium. After it had been decided that the only remaining issues between the parties were the no-strike clause, the checkoff, and the piecework guarantee , the Union asked Carter if it were true that the checkoff was really the stumbling block and, if the Union would agree to its elimination , would the Respondent sign a contract containing the 1948 terms on the other points. Carter stated that he would have to think it over. After a long conservation with someone over the phone, Carter returned and announced that the Respondent insisted upon all three issues as presented in their proposals . Finally, the Union inquired whether the Re- spondent would sign a contract if it gave in on all three issues. Carter said that he "supposed -so" but that he would have to consult others before he could be definite. . On October 6, Governor Kerr Scott of the State of North Carolina entered the negotiations by calling both sides to the Governor 's Mansion. At this time, he frankly stated that he wanted to secure a settlement of the strike and asked if both sides had authority to settle . The Union answered "yes" though any settlement would have to be ratified by the membership which the Union officials present said that they could almost guarantee. Carter said that he also had authority. When the Governor asked for the positions of the parties, Carter stated that the Respondent was standing upon his last offer with the no-strike clause, the elimination of the checkoff , and piecework guarantee of only the base rate. The Union inquired whether the Respondent would give the other two if it would abandon the piecework guarantee. The answer was no. Carter was then asked if the Union were willing to give up the checkoff, whether the Respondent would grant the other two issues and his answer again was in the negative. The Union suggested signing a contract containing the issues already decided , settling the strike, and then arbitrating the three re- maining issues. Carter again refused. The Governor remarked that it looked to him as though the Respondent wanted to "bust the Union." To this, Carter answered that only 20 percent of the textile mills in the South were organized. When the Governor remarked that that had nothing to do with this case , Carter, for the first time, stated that he "knew that the people in the plant are not repre- sented by this Union , that this Union does not represent a majority of the people." With that, Bishop immediately offered to settle the strike, allow the employees 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at work at the time of the strike to vote under the auspices of the Commissioner of Labor of the State of North Carolina and that, if the Union won, the Respond- ent was to sign the contract for 1949 but, if the Union lost, the Union would withdraw. Carter's answer was that he would have to give the proposal some thought and that he would have to consult with his people but that he would let the Governor know by the following week. By letter dated October 8, 1949, Carter gave the Respondent's position that it would be happy to have the election conducted but that, regardless of the outcome, it would continue to insist upon the three clauses as proposed by the Respondent and that, in addition thereto, the Respondent would have to have effective guarantees that the employees then working in the plant would not at any time thereafter be subjected to any form of threat, intimidation, pressure, or retaliation from the Union or its members. Carter further mentioned in this letter that the Respondent would not reemploy any person "whom we find to have taken any direct part in assaulting officials of our company, damaging our properties or feloniously assaulting other persons for working in our plant.". Then, after reminding the Governor that the conditions of employment at the Respondent's plant were "the very best of working conditions," Carter ended his letter to the Governor with the following sentence: "We trust that all of these employees who desire to work in our plant despite our disagreement with the Union may feel that in doing so they will have the protection to which they are by the law of North Carolina entitled." The letter constituted a refusal of Bishop's offer. Governor Scott on October 19 journeyed to New York City to meet with Frank Leslie and Emil Rieve, president of the Union, in an effort to settle the strike. He was again unsuccessful. He was also outspoken in his denunciation of the Respondent's attitude as being "inflexible," "uncompromising," and "adamant." During a discussion of the problem of the checkoff and the no-strike clause Leslie explained to the Governor "that Mr. Carter had found his internal re- lations with the Union had been most unsatisfactory for several years, involving constant bickering, unreasonable complaints and demands, which, while few of them reached the state of formal arbitration, nevertheless, affected con- siderably the efficient running of his mill and the utter lack of good faith on the part of the Union in calling the strike at the time they did was the `Oak Tree that broke the Camel's back' and that he, Mr. Carter, did not feel that he could reasonably continue collecting dues and take positive action in helping to continue the advancement of a group that were out to destroy him." Leslie's report of this meeting indicates the attitude of the Respondent and will, there- fore, be attached to this Report as Appendix A. The results of the conference were again negative. On November 2, 1949, a Congressional Committee investigated the situation at the Hart Cotton Mills and interrogated the principal actors under oath. Appar- ently, the Respondent's position in Atlanta did not appear impressive to the Respondent itself for, in a letter dated December 27, 1949, on Ely and Walker Dry Goods Co., stationery, M. Weldon Rogers commented to Carter as follows : We were not too well prepared at the Congressional Hearing in Atlanta, and we do expect to appear at the NLRB hearing in Tarboro on January 17, 1950 fully prepared to, answer charges which may be made by the Union. Apparently the facts spoke louder than the words in the opinion of M. Weldon Rogers also. HART COTTON MILLS, INC. 747 On November 27, 1949, the Union suddenly capitulated by making an uncon- ditional offer on behalf of all the striking employees to return to work. Thus, ended the strike. The record does not disclose any further attempts to bargain between the parties prior to the hearing herein. Conclusions as to Bargaining The Act only requires that the parties shall not refuse to bargain collectively. The Board and the courts early and necessarily interpreted this into an affirm- ative duty to bargain in good faith. It is hot required that the parties reach an agreement although it is to be presumed that, if the parties do bargain as reason- able men in good faith, generally a mutually satisfactory agreement will result from the very nature of things. Good faith indicates a disposition or a willing- ness to reach a mutually satisfactory agreement together with an attitude of reasonableness on both sides to attain that end. Neither side may enter negotia- tions with his mind hermetically sealed against entering into contractual rela- tions nor be capriciously unreasonable throughout the negotiations in order to prevent an agreement. The question of good faith is a question of fact to be determined from an examination of all the elements in the negotiations : The personalities, the general attitude, the specific issues, and the result-no one of which is necessarily determinative. In the instant case the parties reached no agreement. That of itself, of course, is not determinative of the crux issue here as to whether the parties bargained in good faith until they reached an impasse, as the Respondent contends, or whether the Respondent failed to bargain in good faith thereby preventing agreement, as the General Counsel and the Union contend. With one possible exception the facts in the instant case, in the opinion of the undersigned, point to but one answer: The Respondent did not intend to reach an agreement with the Union 'and maneuvered throughout the 28 negotia- tions to prevent the reaching of an agreement. The first subject to be analyzed is the personality of Marcus W. Carter, Respondent's chief negotiator. It would be an interesting philosophical ques- tion to determine whether we are actually studying the personality of Carter or that of some person unknown who remained assiduously in the background whom Carter had to consult so frequently throughout the negotiations. But, as a legal question, it is immaterial here for the reason that the Respondent maintained at all times that Carter alone had full authority to negotiate and execute an agreement with the Union despite those frequent consultations thus imposing upon its agent, Carter, a personality, perhaps, not in fact his own. The agreements of 1947 and 1948 which Carter negotiated and executed with the Union indicate clearly that in the past he had negotiated in good faith. However, in 1948 a dispute between Carter and the Union as to the time for the payment of the second weeks vacation pay had to be taken to arbitration for determination. Carter displayed considerable personal pique at this and at the award which was unfavorable to his contention by threatening the Union with reprisals both on account of the arbitration and also because of the award. The description by the Respondent's president, Leslie, of the years of "constant bickering, unreasonable complaints and demands," of the "oak tree that broke 28 Singer Manufacturing Co. v. N. L. R. B., 119 F. 2d 131 (C. A: 7) ; Pilling & Sons v. N. L. R. B., 119 F. 2d 32 (C. A. 3) ; Wilson & Co. v. N. L. R. B., 115 F. 2d 759 (C. A.) Tomlinson of High Point, Inc., 74 NLRB 681. 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the camel's back" and the defense of the "reasonableness" of Carter's refusal to assist, by the collection of dues of the "group that were out to destroy him" is eloquent evidence that Carter had determined to eliminate this "group." It is also worth noting that Carter's own testimony corroborating Leslie's description fails to show, except for the arbitration matter, any basis for the claimed "constant bickering, unreasonable complaints and demands." True, in 1946, there had been a stoppage for a few days, the reason for which is not stated in the record, and, in 1948, a, stoppage for a few hours caused. by the Respondent's own unilateral action in changing the wage structure without consultation with the Union. Both the stoppages had been permissable under the terms, of the existing agreements. The next point to note is the general strategy employed by the Respondent. To say the very least, the positions taken by the Respondent'were ephemeral and subject to change without notice thus making it virtually impossible for the Union to know what the issues in fact'were. One cannot argue with quicksand. On some issues, such as the checkoff and no-strike clause, the Respondent's position underwent no less than three complete reversals in 6 weeks of bar- gaining. On other issues, such as those arising out of section 8 of the 1948 contract, overtime, reporting, holiday, and third-shift premium pay, the only thing the Respondent agreed to in its original position was the only thing that it objected to at the end of that same period of time and.that objection was first raised less than 48 hours before the 1948 contract was to expire. The Re- spondent's strategy was also typified by its sudden introduction of three new or purportedly agreed upon issues on May 11 when the parties entered into their last minute negotiations before the expiration of the contract the following day. Clearly this demonstrates a determination to force a disagreement. A review of the Respondent's tactics confirms the fact that the Respondent's numerous changes of position were dictated by the Respondent's desire to find issues, no matter how trivial or unimportant to the Respondent, to prevent the reaching of an agreement. The issues raised by the Respondent and remaining unresolved on May 12 were two holidays without premium pay, the second week's vacation pay, third-shift premium pay, the piecework guarantee, the check-off and no-strike clause, the latter three issues having been raised or reintroduced on May 11. Despite Carter's personal opinion that "we felt" that the employees would prefer to work on holidays at regular time rather than not to work at all, holidays for workers are in this modern day and age an accepted, customary practice and are here to stay. Even the Respondent recognized this after the strike began when it finally withdrew this request on August 2, 1949. The.sec- ond week's vacation pay issue was foolproof for the Respondent's purpose because, after winning the arbitration on that point only a few weeks before the expiration of the 1948 contract, the Union could not agree to its elimination in the 1949 negotiations without making an abject public surrender to the Respondent. Ac- cording to Carter again, this issue was just thrown into the bargaining basket. merely for discussion as the Respondent never seriously desired its elimination and, in its public.ad of May 24, 12 days after the strike began, the Respondent publicly said as much Why then was this "issue" not settled until after the strike? The checkoff and the no-strike clause were customary practices in union 29 This refers to the paragraph relating to vacation pay found above. As this paragraph is worded somewhat ambiguously, it is possible that the Respondent did not intend it to have the meaning which the undersigned understands it to have. However, when the Respondent finally paid the vacation pay to its employees upon their return to'work; the Respondent paid both the first and the second week's vacation pay. HART COTTON MILLS, INC. 749 contracts in the State of North Carolina and had been satisfactory to the Re- spondent in its 1948 agreement. Could these demands of the Respondent have been nothing more than personal pique and reprisal for the temerity of the Union in taking the vacation pay issue to arbitration and the display of the Respondent's resentment at the award resulting therefrom? They had both been settled be- tween the Union and the Company for years so that no matter of principle could have arisen on May 11, 1949. The only explanation for the introduction of all these issues was to locate something -to prevent the parties from reaching an agreement, especially something the Union could not agree to, thus superficially placing the onus on the Union for the failure. Why else was the majority ques- tion raised as late as October 6, 1949? On one point, housing, the- Respondent refused in so many words to bargain. Carter refused on the grounds that it was not a bargainable issue. Under the conditions existing at Tarboro where Carter acknowledged that the Respondent had to furnish cheap housing in order to secure and maintain a full working crew, housing is a bargainable issue.30 Carter was wrong on the legal issue. This alone constitutes a refusal to bargain. By publicly offering through its ads of May 24 and September 13, 1949,31 to the individual strikers employment on the terms and conditions of employment existing prior to the strike, the Respondent offered to those individuals better terms and conditions than it offered at any time to their official bargaining rep- resentative, the Union. At the hearing the Respondent denied that it had ever offered the Union the terms contained in the 1948 contracts-but it did offer those terms to the individual strikers if they would return without their bargaining agent. Under the public offer made to the individual workers by the Respondent, they would receive both weeks of vacation pay immediately, the third-shift premium pay would be guaranteed, the piecework guarantee would be the indi- vidual average earnings,33 and the six named holidays would be paid at time and a half. In this and in other regards the offer made to the individuals if they returned to work without a bargaining agent was financially better than the offers which the Respondent had made to their bargaining agent. This also con- stitutes a refusal to bargain.33 Thus, the Respondent used the issues noted above not only to prevent the reaching of an agreement and to force a strike but also as a promise of benefit to the employees if they would eliminate the bargaining agent, the group "that were out to destroy him." President Leslie quotes the Honorable Kerr Scott, Governor of the State of. North- Carolina, as referring to the Respondent's position here as "inflexible," "uncompromising," and- "ada- mant." The undersigned believes that the above terms were both apt and justi- fied. M. Weldon Rogers, one of the dim background figures here, indicated that even he could perceive the weakness of the Respondent's position when he wrote on Ely and Walker stationery, either as an official of the Respondent or of Ely and Walker, on December 27, 1949: "We were not too well. prepared at the Con- gressional Hearing in Atlanta, and we do expect to appear at the NLRB Hear- ing in Tarboro on January 17, 1950 fully prepared to answer charges which may 3o Weyerhaeuser Timber Company , 87 NLRB 672. 31 The statement in this as was : "Everybodys ( sic) wages and other benefits will be the same as they were before the strike began." 32 On this , the facts show that the Respondent did not abide by its offer to the individuals as the Respondent has only guaranteed,. since the return to work , the group average earn- ings-which , as pointed out above, is better than the "base rate " guarantee offered to the Union. u Crompton -Highland Midis, Inc., 337 U. S. 217. 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be made by the Union." Frequently; mere words cannot disguise the facts. This is one of those occasions where the Respondent "lacked a sincere purpose to reach an agreement." 94 One fact only gives the undersigned pause. That is the fact that it was the Union which requested the adjournment from May 1.1 to 3 p. in. on May 12 for the final negotiations prior to the expiration of the contract. This request for delay might constitute some evidence that the Union was not interested in arriving at any agreement. However, there still remained 9 hours before the contract was to expire in which to reach an agreement. At that time the issues could not have appeared so formidable to a reasonable person as not to be solvable in 9 hours. As the Respondent chose to remain unreasonable in its attitude, this delay could have played no part in the failure. The Respondent never intended that the parties should agree. If further facts are needed to prove this last statement, the Respondent sup- plied them on October 6, when,. for the first time, the Respondent implied that "it knew" that the Union did not represent a majority of the employees. How- ever, this "knowledge" did not prove sufficiently trustworthy in the Respondent's own mind to permit it to settle the strike on how the employees would vote on the issue in a secret election to be conducted by the Department of Labor of the State of North Carolina. If there had been any loss of majority, it is clearly traceable to the Respond'ent's unfair labor practices. Under'all the facts here the undersigned is convinced, and therefore finds, that the Respondent entered into the negotiations with the Union with the fixed intent that no agreement should be reached and that it so conducted itself while giving the superficial appearance of bargaining as to assure itself that no agreement would be reached and that the Respondent refused to bargain on and before May 12, 1949, with the Union as the exclusive representative of its em- ployees, thereby causing the strike of AIay 12, 1949, and that the respondent has continued thereafter at all times to refuse to bargain with the Union, thereby prolonging that strike. B. Independent interference, restraint, and coercion The undersigned has already found that the Respondent refused to bargain with the Union as the exclusive representative of the Iespondent's employees, thereby violating Section 8 (a) (5) and 8 (a) (1) of the Act. There were other independent violations of Section 8 (a) (1) of the Act which deserve mention here. During the pendency of the strike the Respondent authorized its supervisory force to attempt to secure a working complement to operate the plant despite the presence of the picket line. The Respondent told the supervisors to talk to those employees who had worked under them prior to the strike and to get them to return to work. As was to be anticipated, despite the fact that Carter testified that he ordered Fowler to inform the supervisors not to use "any pres- sure" on the employees, some of these supervisors did resort to unfair tactics in their efforts. So, for example: 1. Supervisor Arthur Reynolds told employee Lilly Worrell : "If you will come go back to work with the ,Company like we want you to, your job will be easier for you and you will get along fine but if you go back the way the Union wants 34 N. L. R. B. v. Tower Hosiery Mills, Inc., 180 F. 2d 701 (C. A. 4). 35 Most of the statements quoted herein were denied in whole or in part by the supervisor involved. HART COTTON MILLS, INC. 751 you to , they might not fire you but your job will be miserable and you will finally quit" ; 2. Supervisor John Umphlet told employee John Neal in August or September that he did not think the Union would ever get a contract but, if Neal would return to work, he ( Umphlet ) "would see" that Neal got his vacation pay; 3. Supervisor Arthur Reynolds told employee Gerald Worrell in September that Overseer Ayres had Worrell on a list of employees he desired to keep and if Worrell would come back to work , he would get his vacation pay but, if he did not go to work until the next week, he would not get vacation pay and that the Union would never get a contract ; 4. Supervisor John Umphlet told employee Elia Porter on the Sunday after the issuance of the injunction that, if he would come to work he (Umphlet) would go after his compensation money for Porter 's injured thumb and ordered Porter to return back to work Monday morning adding "If you don 't come back, you won't have no job"; 5. Supervisor John Saunders told employee Narcissus Porter the day after the issuance of the injunction to come to work on the following Monday morning and that, if she did not, she "wouldn 't have no job" and that the Respondent "wouldn't ever have a contract any more" ; 6. Supervisor Arthur Reynolds told employees Robert Dickson and David Forbes that the Union "wouldn't get a contract" and that, if they went back to work "now," they would get their vacation pay but if they waited for the Union to get a contract , they would not get vacation pay, "or anything"; 7. Supervisor Sine Robinson told employee Joe Lynn : "If you don't go back (to work ), you won't have a job and furthermore Mr. Carter said he won't sign a contract , he said before he would sign he would move the mill" and added: "If you don't go back you won't have any place to live either and lie ( Carter) has got some people in other towns to move in and take our jobs from us and move us on the street." The undersigned finds that all the above statements were made in violation of Section 8 ( a) (1) of the Act. In addition to the above Carter gave a statement to a reporter of The Daily Southerner, the Tarboro daily newspaper, about the fact that the Respondent was formulating plans for the immediate disposal of the 230 company-owned houses in the Fountain and Hart Villages . Although, according to Carter's tes- timony at the hearing , the Respondent had abandoned the idea of selling these homes in the month of April 1949, he gave this statement to the press in July 1949. At that time the Respondent knew, as well as it had in April, that due to the shortage of low rental housing in Tarboro, the Respondent had to supply such housing in order to have and maintain a full working complement to man its mill. The connection between this story and the then existing strike situa- tion was clearly pointed out in direct quotes from Carter in the newspaper article as follows: "We now have more houses than we need and they are too expensive to maintain . At the same time we don' t mind providing houses at a low rent for our workers , but when those persons living there are unwilling to go to work, we must protect ourselves . The rent we are getting from those houses is not enough to maintain them, a detail we overlook while our employees are working." [Emphasis supplied.] It was due to the consternation and fear caused among the strikers by this article which forced the Union to request on July 29 that the new agreement contain a provision about the company-owned housing. It was at this time that the Respondent refused to bargain about housing. 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Again, on or about October 25 , Carter gave the reporter of The Daily Southerner the following statement which was also run in that paper as a news story : "There is going to come a time when employees living in our village houses will have to decide what they intend to do about continued occupancy . The Company only maintains the village for the benefit of employees who work. We believe they have had ample time to decide whether they want to work in our plant and thereby continue to live in our houses. . . . None of the employees on strike, even though a great many are now working elsewhere , have paid any rent since May . Also we have continued to pay water charges for a large majority of families . Naturally we do not see how the striking employees can continue to expect us to furnish these previleges." These stories were intended to, and did , cause great uneasiness among the striking employees . Despite these stories, however, the uncontradieted testi- mony of Carter and Superintendent Fowler was that Carter had given orders that there were to be no evictions . This order was not run as a news story or given to the press . On July 30 also the Respondent had stated in writing that "we have no intention of pursuing the matter further." This did not find its way into, print either. It is therefore obvious that the newspaper stories were given to the press for publication and were not denied by the Respondent in order to intimidate and coerce the employees into abandoning their affiliation with the Union as well as the strike. As the Respondent's own unfair labor practices had caused and were prolong- ing the strike of. May 12, 1949 , those employees who were on strike at that time remained employees of the Respondent under the terms of Section 2 (3) of the Act. By its threats to sell its low rental housing or evict its striking em- ployees, the Respondent was using its economic strength as owner of those low-rental housing units to discriminate among its employees in the terms and conditions of their employment in order to restrain and coerce those who re- mained loyal to, the Union and on strike to abandon their right to strike and their right to remain union members . Such discrimination constitutes a viola- tion of Section 8 (a) (1) of the Act. In Tarboro the threat of losing one's low- rental home for failure to pay rent during an unfair labor practice strike is serious coercion . If this had been a purely economic strike a slightly different situation as to the use of this economic power might have arisen . However, as this was an unfair labor practice strike, the undersigned believes , and therefore finds, that, by threatening to sell the company-owned low-rental housing and to evict the strikers from such housing for nonpayment of rent constituted a severe form of interference, restraint, and coercion of the Respondent's em- ployees in order to force them to abandon both their right to be represented. by a bargaining agent of their own choosing and their right to strike and engage in other concerted activity in violation of Section 8 (a) (1) of the Act. C. The refusal to reinstate On Sunday , November 27, 1949, the Union for and on behalf of all the strikers made an unconditional offer to the Respondent to return to work, thus officially ending the strike. At that time the Respondent was operating one shift, the first or daytime shift, from 7 a. m. to 4 p. m. While most of the employees at work were strikers who had abandoned the strike before it was officially ended, the Respondent had also secured, some new employees in order to operate even that shift. After this unconditional offer to return the Respondent insisted that those employees HART COTTON MILLS, INC. 753 who had: worked during the -strike were entitled to retain their positions on the first shift even though they thus replaced many of the employees who remained on strike and who had worked upon the first shift prior to the strike. Following a E;-month shutdown there will naturally be some considerable amount of delay from the mere mechanical operation of starting three shifts to work. This delay is naturally inherent in the situation. However in this case the Respond- ent's insistence that those employees who had abandoned the strike by an early return to work should have the jobs on the choice shift added considerably to the confusion and to the delay in returning to work the strikers who had formerly worked upon the first shift. In this instance it resulted in the fact that many employees who had been on the first shift prior to the strike either had to take jobs on less desirable shifts or were greatly delayed in their return to work. The record shows that the Respondent started its third shift on December 5, 1949. That apparently was the reasonable period within which all striking employees should have been returned to work on the regular job and shift which they had prior to the date of the strike. Any delay in their return to work thereafter would therefore be the result of the Respondent's unfair and illegal discrimination against them in favor of those who had abandoned the strike earlier. The undersigned will therefore order the Respondent to return all of the employees employed at the time the strike began to the same jobs and the same shifts which each of them had held prior to the strike and will further order the Respondent to pay to each of those employees who was not so reinstated by December 5, 1949, that sum of money which each of them would have otherwise earned if this discrimination had not been practiced against them by the Respondent. At the time of the hearing the Respondent through Carter stated that it had returned, or would as soon as possible return, to work all of the employees who had formerly been employed by the Respondent prior to the strike with the ex- ception of David Brock, Elmer Matthews, and Jim Cook and that, as to the last named three employees, it was refusing to reinstate them on the, grounds that they had been either convicted or indicted for an assault with a dangerous weapon as an incident of the May 12 strike. It is clear, therefore, from Carter's testi- mony as well as the fact that the Respondent had already reemployed one striker who had hit Carter on the nose during the strike, that the Respondent bad waived any rights it may have had to refuse to employ any of its former employees for any activities related to the strike with the above exception. By order of the Supreme Court of the State of North Carolina filed on March 29, 1950, the conviction of Elmer Matthews and Jim Cook of engaging in an assault with a dangerous weapon was affirmed. Since then the General Counsel has filed with the undersigned a motion to amend the complaint by dropping these last two individuals from the complaint. As of the time of the instant hearing the case of David Brock had not been tried. The undersigned is of the opinion that the use of firearms during any strike is such activity on the part of the striking employee as should disbar him from future employment at the option of the Employer. The undersigned will therefore find that, unless subsequently reversed, the conviction of Elmer Matthews and Jim Cook bars them and each of them from the right to reemployment by the Respondent unless the Respondent later chooses to waive that right. As to David Brock, the undersigned will hold that, unless said Brock is tried and convicted within a reasonable period in the future, he shall be entitled to reinstatement with back pay as provided for the other strikers but, if he is tried and convicted in the near future, then 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he shall be barred from future reemployment with the Respondent unless the Respondent chooses to waive its privilege. 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 tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor prac- tices, it will be recommended that the Respondent cease and desist therefrom and take certain affirmative action which the undersigned finds necessary to effectuate the policies of the Act. Having found that the Respondent on May 12, 1949, and at all times there- after, refused to bargain collectively with the Union as the exclusive representa- tive of its employees in an appropriate unit, it will be recommended that the Respondent, upon request, bargain collectively with the Union. The undersigned has further found that the strike of May 12, 1949, was caused and prolonged by the unfair labor practices of the Respondent and that the Respondent discriminated against various and sundry of its employees by either refusing to reinstate them on or after December 5, 1949, or by rehiring them on shifts other than the one on which they had worked prior to the strike or at a job paying less wages than that which they had occupied on and before the strike, thereby discouraging membership in the Union. The undersigned will therefore recommend that the Respondent immediately reinstate all its striking employees on the same job and on the same shift which each of them held prior to the strike dismissing, if necessary, those employees who were hired after May 12, 1949, and in addition, make each of such employees as discrimi- nated against whole for any loss of pay be may have suffered by reason of the Respondent's discrimination against him after December 5, 1949, by payment to each of them a sum of money equal to the amount he normally would have earned as wages from the date of the discrimination December 5, 1949, to the date of the Respondent's offer of reinstatement, less his net earnings during said period.ae Upon consideration of the entire record, the undersigned is convinced that the Respondent's conduct indicates an attitude of opposition to the purposes of the Act generally. In order, therefore, to make effective the interdependent guarantees of Section 7 of the Act, thereby minimizing industrial strife which burdens and obstructs commerce, and thus effectuate the policies of the Act, it will be recommended that the Respondent cease and desist in any manner infringing upon the rights guaranteed in Section 7 of the Act. On the basis of the foregoing findings of fact and upon the entire record, the undersigned makes the following : CONCLUSIONS OF LAW 1. Textile Workers Union of America, C. I. 0., is a labor organization within the meaning of Section 2 (5) of the Act. 2. All production and maintenance employees of the Respondent, excluding office clericals, foremen, and all other supervisory employees with authority to 36 Crossett Lumber Co., 8 NLRB 440. HART COTTON MILLS, IND. 755 hire, discharge, discipline, change the status of employees, or effectively recom- mend such changes constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. Textile Workers Union of America, C. I. 0., was on May 12, 1949, and at all times material herein has been, and now is, the exclusive representative of all the employees in the above-described unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By refusing on May 12, 1949, and at all times thereafter, to bargain with Textile Workers Union of America, C. I. 0., as the exclusive representative of the employees in the above-described appropriate unit, the Respondent has en- gaged, and is engaging, in unfair labor practices affecting commerce within the meaning of Section 8 (a) (5) of the Act 37 5. By refusing on May 12, 1949, and at all times thereafter, to bargain with Textile Workers Union of America, C. I. 0., the Respondent caused and pro- longed the strike of its employees which occurred at the Respondent's plant on May 12, 1949. 6. By discriminating in regard to the hire and tenure of employment of vari- ous and sundry of its employees by failing or refusing to reinstate them on December 5, 1949, to the same job on the same shift which they had held prior to the strike thereby discouraging membership in Textile Workers Union of America, C. I. 0., the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 7. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication in this volume.] APPENDIX A OCTOBER MEMORANDUM I arrived at the Governor's suite ai the Park Sheraton Hotel at 8: 05 and found the Governor, Mr. Rieve, and a Mr. Crane, who introduced himself as connected with the State Labor Department of North Carolina. Mr. Crane opened the proceedings by offering to leave since the meeting was supposed to include Mr. Rieve, the Governor and myself. Since I felt that he had been probably called in by the Governor as a technical advisor I offered no objection to his presence. For the rest of the evening Mr. Crane made several attempts to inject an atmosphere of sweet reasonableness into the discussion but, otherwise, he contributed nothing of importance. It will not be possible to give the proceedings in chronological order as the discussion skipped from one point to another all evening. I can only give the high points of the evening and the important points made by the parties participating. The Governor opened the proceedings with a little homily on the state of affairs in the Community of Tarboro and how this prolonged strike has affected not only the workers and the commercial life of the town but also the fact that 24, 1949. This includes, among other things, the question of housing. 917572-51-vol. 91-49 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the mill was losing a golden opportunity of capitalizing on the present Print Cloth market by not running in a manner in which it might make a profit. "What we are all interested in," said the Governor, "is to make a dollar." The Governor then emphasized that "absentee ownership" had the same moral responsibility as "local ownership" and no one could evade this respon- sibility by keeping it at a distance and placing the entire burden on a local Manager. I listened patiently while this speech was being made and made no comment until he got to the end of it. His concluding remarks had to do with the Company's adamant refusal to agree and make no concessions whatsoever. At this point I interrupted to say that I had spent part of the afternoon re- reading twelve to fourteen pages of a typewritten contract that the Company had proposed. Under this contract the employees were offered everything they had asked for with regard to wages, working conditions, seniority, protection from arbitrative discharges, etc. ; everything, in fact, that we considered material and substantial and, therefore, I must take issue with the statement that we are offering nothing and not making any concessions. I had the distinct impression then, and throughout the evening, that the Governor never listens in a conversation but simply waits until the speaker subsides so that he can resume talking about whatever he happens to be thinking of while the other person is talking. The Governor's economic philosophy obviously embraces the principle that the "Check Off," as part of a Union contract, is an established custom and that the principle is no longer subject to question. Naturally, he did not express this in words but his attitude was very evident. In an early part of the proceedings, the Governor turned to Mr. Rieve and asked him if he would accept any compromise on the "Check Off" and the "No Strike Clause". Mr. Rieve answered that he absolutely would not. Mr. Rieve said that the mill was, in effect, offering nothing to their employees because the terms of the contract were only what was standard in all mills ; that before they would accept a contract without these two provisions, they would send the workers back to work without a contract and conduct a "Guerrilla Warfare" from the inside. "It is not my purpose to bust mills," said Mr. Rieve, "but I am not going to ]et anyone bust my Union either." With regard to the'No Strike Clause", Mr. Rieve said that under its provisions the Union could be held liable for actions committed by nonunion .workers in the plant. I answered that according to our own attorney the Union could not be held responsible for the actions even of its members unless that re- sponsibility could be proven. Mr. Rieve replied that his lawyers told him one thing and our lawyers told us something different and that he did not propose to spend thousands of dollars of the Union's money in legal fees to take a case to the Supreme Court to find out which set of lawyers were right. The third point in dispute ; that is, the matter of the work loads, Mr. Rieve dismissed with a set comment that the Company's attitude was ridiculous. After Mr. Rieve's reply to the Governor's question as to whether the Union would compromise on the three points, Mr. Rieve was not again interrogated on these points and his answer was apparently accepted as sufficient explana- tion, at least, to satisfy the Governor that the matter was no longer debatable. The Governor, showing the only signs of "heat" which were expressed all evening, told me that he resented the insinuations made by Mr. Blakeney, in conferences in Raleigh and elsewhere, that he, the Governor, was not enforcing the law in giving sufficient protection to the mill in furtherance of the execution of the Court's injunction. HART COTTON MILLS, INC. 757 I replied that not having Mr. Blakeney's language before me it was difficult to discuss the insinuation but since Mr. Carter had received a punch in the nose in front of the mill gates I could understand why he might think that the protection was inadequate. The Governor said that he had only twenty-five State Troopers available and . their primary job was to patrol the highways, where they were badly needed. However, all these men had been alerted, which he explained meant that they were within radio-calling distance of Tarboro, but he did not know how long he could continue even this measure of protection in view of the "Company's in- flexible attitude." Whenever the Governor mentioned the "inflexible", "uncompromising" or "adamant" attitude of the Company, 'I protested that it was not fair to pick out two or three points of disagreement while ignoring the many points of con- cessions. My protests were received by the Governor without any comment what- ever nor any acknowledgment either. The Governor then brought up the question of the fact that the "Check Off" and the "No Strike" laws were elements which were not introduced in the pre- liminary negotiations preceding the strike but in subsequent, conferences after the strike had started. I explained that Mr. Carter had found that his internal' relations with the Union had been most unsatisfactory for several years, in- volving constant bickering, unreasonable complaints and demands, which, while few of them reached the state of formal arbitration, nevertheless, affected con- siderably the efficient running of his mill and the utter lack of good-faith on the part of the Union in calling the strike at the time they did, was the "Oak Tree that broke the Camel's back", and that he, Mr. Carter, did not feel that he could reasonably continue collecting dues and take positive action in helping to continue the advancement of a group that were out to destroy him. The Governor seemed to feel that this was a passing anger of Mr. Carter's generated by the beat of battle. The high point of Mr. Rieve's contribution to the evening occurred when he said to the Governor, pointing at me, "We have dealt with this man before and our relations were very satisfactory. I think you have the wrong man here. The man you should have is the President of Ely & Walker Dry Goods Company." Then Mr. Rieve addressed me and said, "Doesn't Ely & Walker own the control- ling interest in the Hart Cotton Mills?" I replied that what was involved was a matter of principle and I did not consider it relevant whether or not the Hart Cotton Mills was owned by the Soviet Ambassador.. I also added that some time ago the President of Ely & Walker had issued a statement to the Press regarding his company's relations to the Hart Cotton Mills, which, I felt, was self-ex- planatory and complete and needed no comment or elaboration by me. The Governor made no comment at this time or at any other time during the proceed- ings on Mr. Rieve's statement and, although he constantly referred to the "respon- sibility of absentee ownership", he did not make any insinuation or particulariza- tion regarding that ownership. At one point, when I felt that I could not ignore the implications of "absentee ownership", I said that the Hart Cotton Mills was a North Carolina corporation with North Carolina stockholders and the Governor replied, "But you are the President of the mill and you are in New York City." To this I answered that it was in an effort to avoid any charge of "absentee responsibility" that we were placing the responsibility upon Mr. Carter who was a resident of Tarboro. Frankly, I thought this was a good answer but I doubt if the Governor heard it. 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I think I understood the Governor to say that he did not know how much longer he could continue to give even the protection he was now giving since it was costing the taxpayers of North Carolina a great deal of money and depriving the State highways of the use of the State Troopers for patrol work. At this point Mr. Rieve made the suggestion that the Governor might declare Martial Law and close down the Hart Mill but I must admit that the Governor was just as impartial in not hearing what Mr. Rieve said as he was with me. The meeting lasted until 10: 15 but at least 45 minutes of this time was wasted when the Governor and Mr. Crane apparently got their "signals crossed". Mr. Crane asked Mr. Rieve to retire with him and left me alone with the Governor. For the first five minutes, after we were alone, the Governor recapitulated his main points of our moral responsibility in'this matter and I reviewed my answers to his objections. After that time we discussed Foreign Affairs, the Notre Dame-North Carolina game, and the difficulties in trying to chew tobacco in New York City where there were not sufficient receptacles for spitting. When Mr. Crane returned .with Mr. Rieve it was discovered that he had left me alone with the Governor so that the Governor could work on me alone. The Governor apparently did not understand this and it was generally agreed that the 45 minutes had been largely wasted. I think I have hit the high points although there were many other discussions as the conversation went back and forth from one point of contention to another. I had the frustrated feeling that I was "whistling down the wind most of the time with people whose notions were preconceived and certainly " adamant, inflexible and uncompromising." Mr. Crane participated a little more in the proceedings that I seem to indicate with an interjection concerning "package deals" and at one point he mentioned that as a compromise on the "Check Off" an offer had been made to Mr. Carter to allow Union Representatives collect dues on the mill grounds and that Mr. Carter had refused this compromise. I turned to Mr. Rieve and said that since he had agreed to move his Collectors out of the building onto the grounds, it was now only a matter of distance and why didn't he move them a few feet further outside the mill gates and that question would be settled. Mr. Rieve denied that he had ever agreed to any compromise at which the Governor ad- vised that this compromise was offered to Mr. Carter but since he had refused it it was not mentioned any further. In conclusion, my general impression was that the Governor thinks we should go back to the old contract and resume operations and the whole matter will soon be forgotten, except that "folks would just think you all had a fuss" and that we will receive very little assistance from the Governor in maintaining any other position as he is firm in his conviction that we are in the wrong. Mr. Rieve is a tough cookie and a smart one and he is going to give this strike his personal supervision and attention and expects his friends in Congress to help him. Mr. Crane's contribution was impartial and negligible. Mr. Crane had the kind of masculine Southern charm which might easily impress any Yankee who had not spent 24 years in the textile business. The above is about all I can distill out of the general mess and further details will have to be filled in in answer to any specific questions which any of you interested parties may ask.