Union Manufacturing Co.

792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD MORRIS HARRIS, ANNA HARRIS, ALBERT HARRIS AND• BETTY HARRIS, CO-PARTNERS , D/B/A UNION MANUFACTURING COMPANY and AMAL- GAMATED CLOTHING WORKERS OF AMERICA , CIO. Cases Nos. 33- CA-21 and 33-CA-66. July 31, 1951 Decision and Order. On March 26, 1951, Trial Examiner Stephen S. Bean 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 ^L.nd desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Board 1 has reviewed the Trial Examiner's rulings made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed.2 The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the' findings, conclusions, and recommenda- tions of the Trial Examiner with the following modifications : 1. The Trial Examiner found, and we agree, that the Respondent refused to bargain with the Union in violation of Section 8 ('a) (5) and (1) of the Act. Unlike the Trial Examiner, however, we find it unnecessary to rely on the evidence dealing with the protracted 'negotiations for the 3-year period preceding February 1950,3 for the record otherwise shows, "as found by the Trial Examiner, a clear refusal to bargain by the Respondent on and after February 16, 1950, when it broke off negotiations because the Union filed unfair labor practice charges with the Board.4 We also find, as did the Trial Examiner, that thereafter in March, May, and October 1950, the Re= spondent unilaterally granted 'wage increases and altered its house rules relating to other conditions of employment, and thereby inde- ' Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Reynolds and Murdock]. 2 Like the Trial Examiner, we and no merit in the Respondent ' s motion to dismiss the complaint because of the Union' s compliance status with Section 9 (f), (g), and (h) of the Act. The Congress of Industrial Organizations complied with this section on December 22, 1949, and the complaint herein was issued on October 17, 1950. See.Dant & Russell, Ltd., 95 NLRB 252; cf. N. L. R. B..v. Highland Park Mfg. Co., 71 Sup. Ct. 489, wherein the complaint was issued before compliance. 3 Consequently , we do not base our unfair labor practice finding upon paragraphs (a), (b), and (c), set forth in the Trial Examiner ' s "Concluding Findings." 4 United States Gypsum Company, 90 NLRB 904 ; Sussex Hats, Inc., 85 NLRB 399, 407. .95 NLRB No. 64. UNION MANUFACTURING COMPANY' 793 pendently violated ,its obligation to bargain "with the Union.5 We further find that by the: foregoing 'conduct `and by inviting its em- ployees to deal directly with management,, as, to'.`grievances,e the Re- spondent acted in' disparagement of'thecollective bargaining process and indicated a failure to bargain in good faith. The Trial Examiner also found that the Respondent did not violate the Act by refusing to permit a representative of the Union access to the plant for the purpose of conducting a time study of its opera- tions. We adopt this finding, as more fully detailed in the Inter- mediate Report, solely because of the absence of an exception thereto, but without thereby passing on the merits of the issue involved.' 2. In view of the nature of. the unfair labor practices found herein, w shall modify that portion of the recommended cease and desist order which is broader in scope than the Board 's usual order in refusal to. bargain proceedings s. Order Upon the entire record in this 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, Morris Harris, 'Anna Harris,' Albert Harris and Betty Harris;' co-partners, d/b/a Union Manufacturing' Company, El Paso,. Texas, its partners, agents; successors, and assigns; shall: 1. Cease and desist, from: (a) Refusing to bargain collectively with Amalgamated Clothing Worker`s of America, CIO, as the exclusive representative of all pro- 5 N. L. It. B . v. Crompton-Highland Mills, Inc., 337 U. S . 217 ; Tomlinson of High Point, Xncorporated, 74. NLRB 681 . Although the March and May 1950 wage increases were Necessary to bring its employees within the ' mininium requirement of the Fair Labor Stand- ards Act, the Respondent , if it had been acting in good faith , should have discussed the Increases with the Union before putting them into effect. It is not the granting of a wage increase, but the unilateral action which is violative of the National Labor Relations Act. Moreover, under the circumstances herein the Respondent 's conduct amounted to the removal of a preexisting bonus arrangement without notice to the Union. 6 We do not adopt the Trial Examiner' s additional finding to the effect that the Respond- ent, prior to inviting individual grievances , unlawfully ' conditioned the execution of a contract upon acceptance of its proposal as to the procedure for presenting grievances. Our examination of the record leads us to believe that during negotiations the Respondent was seeking to limit merely the size of the bargaining committee and not the class or group from which the grievance committee was to-be selected . Nor are we prepared to find on this record that the Respondent was conditioning the execution of any contract upon acceptance of its own grievance. proposal. The -Intermediate Report discloses, as does the record, that the parties engaged in extensive negotiations with respect to checkoff , sick, and hospitalization benefits. As to these matters, it is clear that the Trial Examiner was of the opinion that they were bargainable issues, but he inadvertently stated that the Respondent was not required to bargain concerning them . There appears to be no doubt that the Trial Examiner meant to state that the Respondent was not required to agree to such proposals. Accordingly. the Intermediate Report is hereby corrected. s See May Department Stores Company v . N. L. R. B., 326 U. S. 376. 794 DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD duction and maintenance- employees, including operators, inspectors, pressers, bundle boys, numerators or numberers, production counters, markers, cutters, shipping employees, machinists, and machinists' helpers, at its El -Paso, Texas, plant, but excluding clerical employees, night watchmen, head shipper, plant manager, superintendent, fore- men, foreladies, and all other supervisors as defined in the Act, with respect to wages, hours of employment, and other conditions of employment. (b) Unilaterally instituting changes in wages, hours, and other conditions of employment. (c) In any other iflanner interfering with the efforts of the Union to bargain collectively with the Respondent. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, resume negotiations with the Union for 'the purpose of executing a bargaining contract and continue said nego- tiations with due dispatch, and if an understanding is reached, em- body such understanding in a signed agreement. (b) Post at its plant in El Paso, Texas, copies of the notice attached ,hereto, marked "Appendix A."' Copies of, said notice, to be fur- nished by the Regional Director for the Sixteenth Region shall, after being correctly translated into the Spanish language and being duly signed by Respondent, be posted by it immediately upon receipt there- of and maintained by it for sixty (60) consecutive days thereafter -in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respond= ent to insure that said notices are not.altered, defaced, or covered by ,any other material. (c) Notify the Regional Director for the Sixteenth Region, in writing, within ten (10) days from the date of this Order what steps Respondent has taken to comply herewith. IT IS FURTHER-ORDERED that the complaint, as amended, insofar as it alleges other violations of Section 8 (a), (5) of the Act, be, and it hereby is, dismissed. 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, as amended, we hereby notify our employees that : . 9-In the event this Order is enforced by a decree of a United States Court of Appeals, there shall be inserted before - the words , "A Decision and Order," the words, "A Decree of the United States Court of Appeals Enforcing." UNION MANUFACTURING COMPANY 795 WE WILL bargain collectively, upon request, with AMAL- GAMATED CLOTHING WORKERS OF AMERICA, CIO, as the exclusive representative of all our employees in. the appropriate bargaining unit herein described with respect to rates of pay, hours of em- ployment, or other conditions of employment, and embody in a signed agreement any understanding reached. The bargaining unit is: All production and maintenance employees, including op- erators, inspectors, pressers, bundle boys, numerators or numberers, production counters, markers, cutters, shipping employees, machinists, and machinists' helpers employed in our plant in El Paso, Texas, exclusive of clerical employees, night watchman, head shippers, plant manager, superintend- dent, foremen, foreladies, and all other supervisors as de- fined in the Act. WE WILL NOT "without notice to or consultation with AMAL- GAMATED CLOTHING WORKERS OF AMERICA, CIO, institute changes relating to wages, hours, and other conditions of employment. 1 WE WILL NOT in any other manner interfere with the efforts of AMALGAMATED CLOTHING WORKERS OF AMERICA, CIO, to bargain collectively with us. on behalf of the aforesaid employees. UNION, MANUFACTURING COMPANY, Employer. By ------------------------------------- (Partner) Dated ------------------ This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material • Intermediate Report STATEMENT OF THE CASE Upon charges filed March 23, April 1.5, June 10, December 2, 1949, and February 14, 1950, by Amalgamated Clothing Workers of America, CIO, herein called the Union, the General Counsel for the National Labor Relations Board, herein called the General Counsel. and the Board, respectively, by the Regional Director for the Sixteenth Region (Fort Worth, Texas), issued a consolidated complaint dated October 17, 1950, alleging that Morris Harris, Anna Harris, Albert Harris and Betty Harris, co-partners, d/b/a Union Manufacturing Company, herein called Respondent, had engaged in 'and were engaging in unfair labor practices' affecting commerce within the meaning of Section 8 (a) (1) and (5) and Section 2 (6) and (7) of the Labor Management Relations Act, 1947, 61 Stat. 161, herein referred to as the Act.. Copies of the complaint, the charges, and notices of hear- ing were duly served upon Respondent and the Union. With respect to the unfair labor practices, the complaint alleged in substance that (1) at all times since on or about January 1947, the Union has been the representative, for the purposes of collective bargaining, of a majority of Re- 796 DECISIONS OF NATIONAL - LABOR .. RELATIONS BOARD spondent's employees in a specifically described appropriate bargaining unit at Respondent's El Paso, Texas , plant, and, by virtue of Section 9 (a) of the Act, has been and is now the exclusive representative of all the employees in this unit for the purposes of collective bargaining ; and (2 ) on or about November 1948 and at all times thereafter Respondent , in violation of Section 8 (a) (1) and (5) of the Act, has refused to bargain collectively with the Union and has engaged in certain specified acts consisting of discontinuing production lines, effectuating changes in the wages and the working conditions of its employees , without notice to or consultation with the Union , refusing the Union's request that it be allowed to make a *study of Respondent's piece rates and the basis of their establishment, revising a piece-rate schedule and reopening production lines without notice to or consultation with the Union, refusing to meet with the Union because the Union had filed a charge with the Board against Respondent, posting a vacation schedule including vacation pay rates without notice to or consultation with the Union, advising the Union it was postponing any meeting until the situation relative to charges was clarified , and granting a wage' increase without notice to or consultation with the Union. It was also alleged that Respondent , in yiolation of Section 8 (a) (1) of the Act, has interrogated its employees concerning their union affiliations ; has threatened and warned them to refrain from assisting, becoming members of, or remaining members of , the Union ; and has kept under surveillance the meeting places, meetings, and activities of the Union or the concerted activities of its employees for the purpose of self-organization or improvement of working condi- tions. The allegations referred to in this paragraph were, by motion made by the General Counsel at the hearing , amended by striking out the references to interrogation , threats, warnings, and surveillance and substituting therefore an allegation that Respondent had interfered with and restrained its employees in the exercise of rights guaranteed in Section 7 of the Act. I allowed a further motion made by the General Counsel, to amend the complaint by inserting section K in paragraph 9 as follows : "On or about October 20, 1950, the Respondent, without notice to or consultation with the Union posted a notice at its El Paso plant, granting a wage increase to its employees effective as of October 30, 1950." During the course of the hearing I allowed a still further motion made by the General Counsel on January 4 ; 1951,.to amend the complaint by adding in para- graph 9 an additional section alleging that on or about the first of May 1950, Respondent, without notice to or consultation with the Union, granted a wage increase to its employees. 0 Respondent, in its answer , admitted certain allegations of the complaint but denied commission of the unfair labor practices alleged. Respondent was allowed to file an amendment to,its answer alleging as a defense that the acts complained of did not occur within 6 months of the date of the filing of any charges upon which the complaint is predicated and that the charges do not set forth facts upon which the complaint is based . I ruled on authority of and within the limitations set forth in Cathey Lumber Company, 86 NLRB 157, and AaelsOn Manufacturing Company, 88 NLRB 761 , that these allegations in defense do not constitute a bar to this proceeding . At various points .during the course of the hearing, I allowed, over Respondent's objections, the introduction of evidence of events occurring prior to September 23, 1948, the date of beginning of the 6-month period ending March 23, 1949, the date of the filing of the first charge, founded upon 8 ( a) (1) and 8 ( a) (3) averments which states its basis to be inter alia, that "by other acts the Company has interfered with , restrained and coerced its employees in the exercise of the rights guaran- . UNION :'.MANUFACTURING COMPANY . 797 teed in Section 7 of the Act," and occurring prior. to October. 15, 1948, the date of beginning of the 6-month period ending April 15, 1949, when there was filed the amended charge founded upon 8 (a) (1), 8 (a) (3), and 8 (a) (5) averments. The basis of this second charge was inter alia a refusal to bargain about April 2, 1949, and at all times since. The second amended charge, the third amended charge, and the amended charge filed on subsequent dates are based upon asserted refusals to bargain on or about January 6, 1949, on or about the first day of January 1949, and on or about February 7, 1947, respectively. Although the charge filed March 23, 1948, did not specifically refer to, a claimed violation of Section 8 (a) (5) as did its three amendments filed between April 15, 1949, and the date of the. amended charge filed February. 14, 1950, upon all of which the complaint was also postulated, I am of the opinion that the tolling point, with respect to all of the allegations contained in the complaint, for the operation of the statutory period prescribed by Section 10 (b) of the Act was September 23, 1948.1 I also denied Respondent's specific motion to strike from the record testimony and exhibits concerning events occurring prior to 6 months before the date of the filing, and service of the first charge. As appears in detail in the report of proceedings, my rulings with respect to this aspect of the evidence were premised on the, reason that while Section 10 (b) prohibits findings of violations of the Act unless based on conduct occurring within the 6-month period, it does not prohibit the receipt of evidence which may be illuminative ,of the background, circumstances, and significance of events which took place during and after the 6-month period .prior to the filing and service of the charge 2 Respondent's motion to dismiss the complaint on the ground that the Congress of Industrial Organiza- tions, with which the Union 'was affiliated, was not' in compliance with the filing requirements of Section 9 at the time the first four of the charges were filed and that the matters referred to in the fifth charge, dated February 14, 1950, were vague and indefinite as to time except with respect to one allegation alleged to have occurred prior to the date of compliance, was denied. The Board has concluded that Congress did not intend that complying labor organizations affiliated with parent federations such as the American Federation of Labor and the Congress of Industrial'Organizations should be denied the. processes of the Board because of the failure of such parent federations to comply with Section 9 of the Act 3 1 See Killefee Manufacturing Corporation, 22 NLRB 484 , 488; and Firestone Tire and 'Rubber Company of California, 22 NLRB 580, 584; Brown-McLaren Manufacturing Com- pany, 34 NLRB 984, 989 , footnote 10; Cathey Lumber Company, 86 NLRB 157 , supra; Axelson Manufacturing Company, 88 NLRB 761, supra. Cf.Kansas Milling Company v. N. L: R_B., 185 F . 2d 413 (C. A.10). 2 In Axelson Manufacturing Company, 88 NLRB 761; supra, the Board stated : It [Section 10 (b)l forbids the issuance of complaints and, consequently , findings of violation of the statute in conduct not within the 6 months' period. But it does not . . . forbid the introduction of relevant evidence bearing on the issue as to whether a violation has occurred during the 6 months' period. Events obscure, ambiguous, or even meaningless when viewed in 'isolation may, like the component parts of an equation , become clear, definitive, and informative when considered in relation to other action . . Congress can scarcely have intended that the Board, in_the performance of its duty to. decide the validity-of conduct within the 6 months' period , should ignore reliable, probative , and substantial evidence as to the meaning and nature of the conduct. Had such been the intent, it. seems reasonable to assume that it would have been stated. $ Northern Virginia .Broadcasters , Inc., 75 NLRB 11. The complaint herein issued on October 17 , 1950. The Congress of Industrial Organizations complied with Section 9 (h 1 of the Act on December '22, 1949. 798 'DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to notice, a bearing was held at El Paso, Texas, on various dates between December 19, 1950, and January 5, 1951, before Stephen S. Bean, the undersigned Trial Examiner, duly designated by the Chief Trial Examiner. The General Counsel, Respondent, and the Union participated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing. upon the issues. On November 29, 1950, Respondent filed a motion for a bill of particulars with the Regional Director. The latter gave notice to Respondent that the motion would be filed with the Trial Examiner at the time of the hearing. Said motion was filed with me and upon consideration thereof, it was ruled on December 19, 1950, that the motion be denied as to paragraph 1 requesting more definite par- ticulars with reference to the time of the alleged refusals to bargain, and, on ,the ground that the amendment to the complaint virtually. eliminated from consideration the allegations sought to be more fully set forth by paragraph (2) and subsections, of the bill of particulars, I ruled that action on said paragraph (2) of the bill was not required. A motion to conform the pleadings to the proof in matters of minor variances, not going into the substance of the complaint, was granted at the close of the hearing.. The General Counsel argued orally. Respondent waived such oppor- tunity. The parties were given leave to submit briefs and/or proposed findings of fact and conclusions of law. On February 5, 1951, a brief was received from counsel for Respondent. Upon the entire record in the case and from my observation of the witnesses, I make the following : .4 On February 8 and 9, 1951, there occurred- the following Interchange of telegrams : WILLIAM R. RINGER, CHIEF TRIAL EXAMINER, NATIONAL LABOR RELATIONS BOARD, WASH., D. C. RE UNION MFG CO CASE '33-CA-21 AND 66, COMPANY REQUESTS THIS TELEGRAM BE FILED AS ITS MOTION TO REOPEN THE HEARING FOR ADDI7 TIONAL TESTIMONY PRIOR TO ISSUANCE OF TRIAL EXAMINERS' REPORT, TO ALLOW RESPONDENT OPPORTUNITY TO' INTRODUCE TESTIMONY EX- CLUDED AT THE HEARING BY THE TRIAL EXAMINER WHICH TESTIMONY IS RELATIVE AMONG OTHER THINGS, TO SLOWDOWNS AND THE UNION ELECTION J. F. HULSE, ATTORNEY FOR UNION MANUFACTURING CO. J. F. HULSE, 1100 FIRST NATIONAL BANK BLDG., EL PASO, TEXAS. JAMES P. WOLF, 1101 T & P BLDG., FORT WORTH, TEXAS. GEORGE P. LAMBERT, 3011 GREENWOOD, DALLAS, TEXAS. RE UNION MANUFACTURING COMPANY CASE NOS. 33-CA-66. TELEGRAM FROM J. F. HULSE ATTORNEY FOR UNION MANUFACTURING COMPANY ADDRESSED TO WILLIAM R. RINGER CHIEF TRIAL EXAMINER NATIONAL LABOR RELATIONS BOARD TREATED AS RESPONDENT'S MOTION DIRECTED TO THE UNDERSIGNED TRIAL EXAMINER IN THE ABOVE DESIGNATED CASE, TO REOPEN THE HEARING TO ALLOW RESPONDENT OPPORTUNITY TO INTRODUCE TESTIMONY RELATIVE TO SLOW DOWNS,,THE UNION ELEC- TION AND OTHER THINGS EXCLUDED AT THE HEARING,. DENIED ON THE GROUNDS THAT THE ADMISSIBILITY TESTIMONY ON MENTIONED MATTERS WAS RULED UPON AT THE HEARING, AND AUTOMATIC EXCEPTIONS TO ALL ADVERSE RULINGS ALLOWED AND ON THE FURTHER GROUND VAGUE- NESS AS TO THE CHARACTER TESTIMONY CONCERNING OTHER THINGS ASSERTED IN THE MOTION. STEPHEN S. BEAN, TRIAL EXAMINER. UNION MANUFACTURING COMPANY 799 FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is a partnership having its principal office andplace of business in Los Angeles, California, and operates plants ` in California and Texas, including a plant in El Paso, Texas, where it employs approximately 250 workers and is engaged in the manufacture, sale, and distribution of work clothing and related products. In the course and conduct of its business operations at its El Paso, Texas, plant, during the period of 1 year ending December 1950, Respondent purchased raw materials consisting principally of cotton fabrics valued in excess of $500,000, ofwhich approximately 80 percent was shipped in interstate commerce to the El Paso, Texas, plant, from points outside the State of Texas ; during the same period which is representative of all times material hereto, Respondent manufactured and sold finished products consisting principally of work clothing valued in excess of $750,000, of which approximately 80 percent was shipped in interstate commerce from its El Paso, Texas, plant, to points located outside the State of Texas. Respondent admits and I find that Respondent is engagedin commerce within the meaning of Section 2 (6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Amalgamated Clothing Workers of-America, CIO, is a labor organization within the meaning of Section 2 (5) of the Act and admits employees of Respondent to membership. III. THE UNFAIR LABOR PRACTICES A. The bargaining unit The complaint alleges, Respondent does not deny, and I find that a unit of Respondent's employees -appropriate for the purpose of collective bargaining within the meaning of Section 9 (b) of the Act consists of the following: All production and maintenance employees, including operators, inspectors, pressers, bundle boys, numerators dr numberers, production counters, markers, cutters, shipping employees, ' machinists and machinists' helpers of Respondent employed at its El Paso, Texas, plant, exclusive of clerical employees, night watchmen, head shipper, plant manager, superintendent, foremen, foreladies, and all other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees or effectively recommend such action. I find that on February 8, 1947,' a majority of Re- spondent's employees in the aforesaid appropriate unit had selected the Union, as their bargaining representative, and that at all times since that date the Union has been and is now the exclusive representative of all the employees in said unit for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. B. Background On February 12, 1947, Ceferino Anchondo, El Paso, Texas, local representative of the Union telephoned J. F. Kratz, Respondent 's branch manager at El Paso, On October 31, 1946, at a Board-conducted prehearing election among employees in the appropriate unit, 145 of 222 valid ballots were cast in favor of the Union. 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the Union had received a certification from the Board and was ready to discuss a contract. Anchondo was referred to Respondent 's El Paso attorney, Coyne Milstead, who informed him he had written Respondent's general manager, H. David Kroll, in Los Angeles, California, and that the Union would hear: front Milstead in the very near future. In February 1947, without notice to or consultation with the Union , Respondent posted house rules relating to hours of work, paid holidays , time cards, vacations, time off, ' absences , use of lunch and rest rooms, personal conduct, cooperation with supervision, efficiency, group life insurance , and other matters. It was not shown that this notice was posted before February 8 or 12, 1947, or that the house rules varied from any previously posted. On February 28, 1947 , without notice to or consultation with the Union, Re- spondent notified two plant lines that due to a drop in production in comparison with the preceding week they would be shut down until March 4. On March 12, 1947, a meeting was held in Milstead 's office. Kroll informed Anchondo and Al Heiken , at that time also a representative for the Union in El Paso, that the Union should prepare a proposed contract that should not include provision for a wage increase. On March 14, 1947, without notice to or consultation with the Union, Respondent .notified three lines of a shutdown until March 18. On March 21 , 1947, without notice to or consultation with the Union, 'Re- £pondent notified two lines of a shutdown until March 26. On March 25, 1947 , George Lambert, regional director of the Union, wrote Respondent enclosing a copy of a proposed contract and requesting a negotiation meeting within 10 days. On April 16 , 1947, after an interchange of correspondence , a meeting was held in El Paso, attended by Messrs. Kroll, Kratz, and Milstead, representing Re- spondent, and Anchondo and Heiken , representing the Union . At this session there were tentative agreements respecting a substantial part of the proposed contract, a declination on the part of Respondent to discuss grievances with a committee elected by the union membership , ' and an offer, to deal only with Anchondo with respect to grievances. Kroll stated he would discuss the pro- posed contract with one of Respondent's partners in Los Angeles, and further advise the Union in conferences tentatively set for the week commencing April 27. On April 23, 1947, Lambert sent Kroll a memorandum containing the Union's version of the agreements arrived at and disagreements unresolved at the April 16 meeting. Following a number of requests by the Union , the next meeting was held on May 26 and 27, 1947 ; the Union 's chief spokesman being Charles Dispensa, who, as an engineer with experience in the particular line of production engaged in by Respondent , was called in by the Union because Kroll had stated production in the factory was low and he wanted to know how to improve it. . In the meantime, on May 15, 1947, all without previous notice to or consultation with the Union, Respondent had posted a notice to employees that lines 1, 3, and 4 would be shut down from May 16 to May 19 ; on May 19, 1947, had posted a notice of shutting down line 4 until May 22 ; and on May 21, 1947, had posted a notice that line 1 would shut down until May 26 and the department would work only 3 days the following week." At the May 26 and 27, 1947, meeting the Union wanted to carry on negotiations from where they had been left off on April 16. Kroll objected, stated nothing had been agreed to at the earlier meetings and thereupon negotiations started " These shutdowns were occasioned by delays in receiving materials upon which the. employees could work. ' UNION MANUFACTURING, CQMP:ANY 801 de novo with a' resultant agreement upon several' 'paragraphs and with some revisions of the Union's proposal of March 25.:, 1Dispensa , offered to, work out' a piece-work system without charge to Respondent . ' Kroll. stated he would refer the offer to Los Angeles . Kroll also stated he would prefer to delay taking up a union-security clause proposed by the Union until an , act introduced into or enacted by the Texas State Legislature had `been interpreted . Dispensa said in effect that there would' be no purpose in continuing negotiations if. Respondent would not agree to a union shop and to increase wages. Kroll stated he did not - have authority to agree on- a contract and Dispensa offered to accompany Kroll to Los Angeles to discuss an agreement with . Mr. Harris , one of Respondent's partners . Kroll informed Dispensa he was not returning directly to Los Angeles. Dispensa requested adoption of a procedure whereby grievances could be taken up with management by a shop chairman . and one representative from each - production line and one from the basement . Kroll replied that he and Mr. Harris wanted only one grievance representative from the entire factory and that dealing with too many on a grievance committee would slow up production . At the end of the meeting Kroll asked Dispensa to prepare a summary of what had been agreed to and had not been agreed to and- send - it to him. Kroll promised to return for another meeting in 10 or 15 days. On May 28, 1947, without notice to or consultation with the Union , Respondent posted a notice to line 1 that if production were improved for 3 days, it would try to provide work for a fourth. day. On June 9, 1947, Respondent posted a vacation announcement without consult- ing or notifying the Union. On June 9 Respondent. also proposed that all em- ployee complaints should be referred to one shop representative for review with the plant superintendent. On June 13 , 1947, the Union rejected this proposal on the ground that it did not desire to empower one or two individuals to assume complete responsibility over grievances in any factory or to designate any in- dividuals by name to administer the terms of a contract , and submitted to Respondent an alternate grievance clause. On June 23 , 1947, Respondent posted, without notice to or consultation with the Union , a new weekly quota. on the production of boys' and men's pants. There ensued several letters from the Union .requesting a: resumption of negotia- tions during the course of and in the writing of which, the Union complained of Respondent's unilateral action in establishing . its 1947 vacation program ,on. June 9 without discussion with or notice to the Union, and advised Respondent that upon consultation with Respondent 's attorneys it was sure it would find that the Texas legislation referred to by Kroll at the May 26 meeting , and concerning which; he wrote on June 26, 1947 , to the effect that after receipt of a copy of the bill and , a study thereof by Respondent's attorneys a meeting date would, be, set, did not relieve Respondent from its obligation . to bargain collectively with the -Union... Another' meeting' Was held on August 11 and/or'-12, :1947; after five earlier. meeting dates had been postponed or, extended by ' Respondent',. The Union's chief spokesman at the 2-day session was La .mber,t.,,,. Kroll, Kratz land Attorney Milstead 'represented Respondent. Kroll opened :, the meeting by complaining about low production , inferring that it was .occasioned by the Union's activities: Lambert attributed it to delays in negotiation with a concomitant reduchion in employee morale. Kroll then started going over, the proposed contract again;, paragraph by paragraph , and some agreements, were reached. There . wpas*" a di cussion as to whether the Union had not agreed to the payment of 2 weeks" vacation only after 41/2, years ' employment and thereafter demanded a-'2'weeks' vacation payment after but 1 year 's employment:; 'Although - Kroll' stated. that 802 DECISIONS OF NATIONAL ,LABOR RELATIONS BOARD he was empowered to negotiate.a contract, Lambert expressed some doubt as to Kroll's authority and of the efficacy of dealing with him, because of the latter's statement at the May 26, 1947, meeting that he was not so authorized. At this point Kroll agreed to bring Mr. Harris to a meeting to be held the first week of September if the Union would call a meeting of its membership and advise them the Union was desirous of their giving their best efforts to increasing pro-, duction. Respondent brought up the subject of proposed quotas requiring some change in the method of paying wages. It was understood that Dispensa would check the proposed rates and meet with Kroll and Harris concerning the rates at a meeting in the first week of September. On the afternoon of August 12 or 13, 1947, the Union called a meeting of its membership and requested that they give Respondent complete cooperation in, improving both production and quality and informed them that-in return they might expect Respondent to agree to a contract acceptable to the membership. Another meeting was held on September 8, 1947. In addition to those present at the August meeting were Dispensa and Sproesser Wynn, Respondent's Fort. Worth attorney. Attorney Milstead was not present. The parties had before them a reflection of the agreements and disagreements which were arrived at or -recognized at the August 12 meeting. What was. considered to be an agree- ment on all points,' subject to the checking of some language or words by Re- spondent's attorney, Milstead, was arrived at. The Union agreed to recommend what had been agreed upon (subject to Respondent's final approval or check- ing)„ to its membership for ratification. Between September 8 and about Sep- tember 25, Lambert sought information from Respondent relative to its or Wynn's final approval of the September 8 understanding. A question was raised by Wynn about September 20 as to whether the shipping department employees were properly a part of the unit. On September 25 Wynn said he would advise Kroll in Los Angeles that the shipping department employees were included in the appropriate bargaining unit and expressed surprise that Respondent had not informed him concerning what was delaying submission of a completely typed contract based on the September 8 understanding. About October 9, 1947, Dispensa, while in Los Angeles, telephoned Kroll re- questing a meeting with Harris for the purpose of completing negotiations: He was informed Harris was ill. Dispensa telephoned a second time a few days later and was told Harris was still ailing. He then stated he would com- municate again with Respondent upon his return from a trip to Mexico. Neither Kroll nor anyone connected with Respondent has heard from Dispensa since his second- telephone call. Following the Union's claim that certain employees had been unfairly deprived of paid vacations and its statement that it proposed to file charges with the Board, Respondent, on August 13, 1947, posted an announcement of the granting of a 1-week vacation to approximately 38 employees who were laid off during the'spring and rehired in June and July 1947. On August 14, 1947, Respondent posted a notice of a readjusted quota production for line 4. On August 15, 1.947, Respondent posted a notice of an increased quota on corduroy bib garments from 50 dozen per day to ,100 dozen per day. On August 18 the Union wrote Respondent that the posting of quotas may have interfered with the interest that they should show by way of cooperation which the Union had requested of the employees, at the instance of Respondent, but that the questions raised by such posting had been adjusted satisfactorily. On September 12, Respondent 7 Respondent contends that the matters of wages, extended grievance procedure , arbitra- tion , and hospitalization and sick leave benefits were not agreed upon. - UNION MANUFACTURING COMPANY 803 posted a notice of changes of quotas stating that if anyone of the lines should fail to reach a satisfactory production, the line would be closed the following day. Subsequently, there .was an interchange of letters,, which consisted largely of the Union seeking to. set a further date for a continuation of contract negotiations in El Paso. On October 6 the Union wrote Respondent it was arranging a strike since an agreement had not been reached and a contract signed but that a strike could be averted by an immediate resumption of bargaining. Respondent replied that Harris was ill but that it would later advise the Union of the time and place of another meeting. Respondent on October 20, 1947, posted a notice that its nonunion member employees could deal directly with Respondent in the matter of complaints. Anchondo requested Kratz for an explanation concerning this posted notice and was informed that it was placed, on instructions from Los Angeles. Another notice was posted on October 23, informing employees that any individual who cared to take up his or her problem with management individually might do so. About November 7 Kratz informed Anchondo he had received instructions from Kroll to ask Anchondo to stay away from the factory and not call Kratz any .more-,on grievances because there was no contract. A few days later when more bulletins were posted, Anchondo and another union representative went into the factory and started to read these notices. Kratz appeared and An- chondo asked him why the Union had not been consulted concerning a change in the amount of bonus and an increase in wages announced in the notices. Anchondo was denied the right to copy the notices and his request for copies thereof was deferred. On October 31, 1947, Respondent stated to its employees that the Union had made libellous and untruthful statements on October 23, 1947. The October 23 statement was a publication noting that nonunion em- ployees had been saying they could take their problems to management without need of representation, that employees knew the tricks of Respondent and its dictator, that the seniority of some employees had been taken away, that Respondent had men without honor like, its manager from Los Angeles, and that the Los Angeles plant rates of pay were double those prevailing in its El Paso factory. On November 7, 1947, Respondent notified its employees that it was not recognizing grievances from outside individuals, that a union organizer had falsely been taking credit for arranging for vacations for em- ployees who had been out of work for 30 to 90 days, and that they should not be disturbed or misled by false or exaggerated statements. On November 10, 1947, Respondent notified its employees of a revision of the incentive bonus stating that under its terms al employees should be able to reach quota by the exercise of plain, normal energy, and, without advising or consulting with the Union, posted a notice of quota and bonus revisions. On November 22, 1947, without advising or consulting with the Union, Respondent posted a notice dealing with an extra week's vacation pay. On December 22, 1947, Respondent made an announcement of an extra week's, vacation. pay to employees with 41/2 or more years of service. On January 26, 1948, without notifying or consulting with the Union, Respondent notified its cutting department employees that it was discontinuing a 'year-end bonus and reinstating a weekly bonus to be kept in effect so long as quality cutting might be produced. It also notified its shipping department employees that it was reinstating' a former weekly bonus plan and discontinuing the year-end bonus. On February 28, 1948, without notifying or consulting with the Union, Respondent announced the inauguration of a 5-cent per hour cost-of-living bonus. Following the Union's request on March 16, 1948, for a conference on March 23 or 24, a meeting was held on March V9, 1948, at 2 p. in. in Milstead's office. 961974'-52-vol. 9 5- 5 2 804 DECISIONS 7OF NATIONAL LABOR 'RELATIONS BOARD Anchondo and two committee members were in attendance. Kroll stated wages could not be increased and that 2 weeks' paid vacations could not be granted to employees who had worked from 1 to 41/2 years. Anchondo stated-that since the Union's efforts to procure a contract, after trying a whole year, had been unsuccessful, the Union was going back to its proposed contract submitted by Lambert on March 25, 1947. After some discussion concerning the subjects of sickness and hospitalization benefits, grievance procedure, and arbitration desired by the Union, Kroll stated Respondent would have a counterproposal ready within a week or so. -The next meeting took place on June 22, 1948. A few minutes before the meeting was scheduled to start,' Lambert received Respondent's counterproposal (Appendix A), concerning which, in part, letters had been written during and since August and September 1947 as well as on March 16, 17, 18, 24, 26, 30, April 2, 15, May 1, 4, and 12, 1948. Kroll, Kratz, and Milstead were present for Respondent. Lambert and Anchondo represented the Union. Lambert expressed dissatisfaction with Re- spondent's counterproposals pointing out that Respondent had previously offered the Union time and a half after B hours a day and had reverted to an offer of time and a half after'40 hours a week (section 3) and that the counterproposal contained what the Union considered to be an improper grievance clause (section 8) and completely lacked an arbitration clause. Respondent declined to modify its counterproposals. At the end of the meeting Lambert stated that although he did not like the counterproposal it would be recommended to the membership for approval provided Respondent would include the grievance procedure he understood was agreed to on September 8, 1947 (Appendix B), a clause (article 7 step 4) which provided for the Union's standard arbitration procedure and, in addition, should contain a provision for insurance benefits covering hospitaliza- tion and surgical and sick leave benefits. Kroll agreed he would submit the Union's proposal to Harris. On June 30, 1948, Kroll wrote the Union these three proposals were not acceptable to Respondent. The Union replied July 12, 1948, it regretted Respond- ent's decision not to accept these proposals, that because of their rejection it withdrew acceptance of proposals made subsequent to, and stood upon, its original contract proposals, that it was ready and available at all times for further meetings either in Los Angeles or El Paso, and that it felt justified in insisting that further meetings be held directly with Harris or that Harris give Kroll a letter empowering the latter to act for Respondent in all collective bargaining matters. On August 30, 1948, without advice to or consultation with the Union, Respond- ent posted a notice that until further notice it could operate its production lines only 4 days a week. s Respondent emphasizes Kroll's testimony that Anchondo said lie had not seen this proposal before coming into the meeting, while Lambert said Anchondo had seen it, as an indication that Anchondo is not a witness whose testimony should be credited. Kroll did not testify that Lambert said he had "reviewed it" with Anchondo. Lambert did testify he said Anchondo had seen it, and he recalled that he and Anchondo gave it a hasty examination and Anchondo went out to the meeting first to discuss grievances. Anchondo testified that he glanced it over, that lie read it. There was further testimony that Respondent sent the proposal to the Union at 8 : 45 a. m., that Lambert did not see it until a few minutes before 10 a. m., and that he stayed out of the meeting for 1 hour in order to have a chance to dig into it before discussion. Assuming, arguendo, that Kroll's testimony represents the fact that Anchondo said he had- not seen the proposal which actually he had seen, I-am unable to conclude that Anchondo is'wholly to be discredited as a witness, as I believe a fair appraisal of the testimony is simply that while Anchondo had hastily glanced at the two papers comprising the document , he had not thoroughly read or carefully studied its phraseology , and hence was unfamiliar with its contents. UNION MANUFACTURING COMPANY 805 C. Events occurring after September 23, 1948 In the early part of September 1948 Oscar E. Kratz, a person possessing wide experience in the manufacturing of clothing, who at that time was production manager of H. D. Lee Company, and who later became employed by Respondent, made a survey of Respondent's El Paso plant operations and prepared a piece- work rate schedule ° which was put into effect by Respondent around December 6, 1948, and thereafter continued to remain in effect with modifications made in May and November 1950, after the 75-cent minimum wage amendment became effective January 25, 1950. The Union was not notified of the fact that the piecework schedule was being prepared by Kratz. Since January 1949 Respondent increased its wage rates 6 or 8 percent over those prevailing in January 1949 in order to make up the differential between the former minimum wage and the new one of 75 cents per hour. In the fall of 1948 without notice to or consultation with the Union, Respondent eliminated payment of a production bonus to shippers. On December 14 and 15, 1948, a meeting was held attended by Kroll, Kratz, and Attorneys Milstead and Wynn for Respondent and by Lambert, Anchondo, and a committee of,employees for the Union. At this meeting the Union presented a proposed contract, (Appendix B). This proposal was the one that had been acceptable to the Union on September 8, 1947, revised as of September 30, 1947, and which Respondent had. indicated was acceptable to it subject to its being checked by its attorney, Mr. Milstead.'0 2 Kratz did not prepare any job descriptions for submission to the Union. 10 Appendix B is General Counsel's Exhibit 6-P. The notes and deletions were made on December 15, 1948, or on later dates. Lambert. testified the typewritten portions were exactly what the Union agreed to and what it would have signed had it been presented to the Union on September 8, 1947. To a large extent, Appendix B is acopy of a proposed contract revised as of August 12, 1947,., presented to the Union on Sep- tember 8 (General Counsel's Exhibit 6-0), which contract in turn reflected the points of agreement arrived at at the August 12, 1947, meeting, and points of,disagreement resolved at the September 8, 1947, meeting.. Lambert' testified further with respect to G. C. Exhibit. 6-0 ". . . we finally.,.. . . had reached,: what we considered to be or what all parties agreed to be a complete agreement on. all points, subject only, as Mr. Kroll stated . to some of the changes being checked. . Mr. Kroll's woids were that it was just a matter of showing Mr. Milstead that courtesy since Mr. Milstead had been in on the negotiations before. Mr: Dispensa asked Mr. Kroll, if I recall correctly,' whether or not he was in complete agreement with us. Mr. Kroll said he was. Mr. Wynn at that meeting recommended the complete contract to Mr. Kroll, and we, as a committee, agreed to take that contract to a membership meeting and recommend it to membership when the Company agreed on all points of it." There is some confusion in the record as to the relationship between G. C. Exhibit 6-0 and G. - C. Exhibit 6-P (Appendix B). However, since it is apparent that. G. C. Exhibit 6-0 was revised as of August 12, about 26 days before the meeting of September 8, and Appendix B was revised as of September 30, about 2.225 days after the meeting of September 8, and Lambert testified, when being cross-examined concerning the meeting of December 14 and 15, 1948, when asked to look at G. C. Exhibit 6-P (Appendix B), "I know this is the contract we worked from. after we asked Mr. Wynn -to-and Mr. Kroll--after we agreed on what contract we would work from, and that, would be the one that came out of the September 8, 1947 meeting and handed to us, the first time, at that time" (e. g., December 14 or 15, 1948) and because of the close similarity between the two documents, I conclude `that G. C. Exhibit 6-P (Appendix B) is based upon G. C. Exhibit 6-0, incorporating only some changes that were made therein during the discussion of September 8, 1947, and I am satisfied that Appendix B reflects an accurate statement of the matters upon which, Kroll stated on September 8, 1947, he,.subject to checking, agreed. Persuasive of this conclusion is the fact that the latter document contains no. reference to the maintenance- of-membership clause which was objected to, includes a longhand notation contained in, the earlier version respecting constructive notice, a !longhand notation contained in the earlier version in section 3, eliminates a reference to unavoidable shutdowns questioned in the earlier version, includes a longhand notation contained in the earlier version 806 DECISIONS `OF NATIONAL. LABOR' RELATIONS BOARD After considerable discussion regarding unilateral changes, whether Respond- ent would supply information concerning individual piece rates in connection with its announced design to change from a line production system to an individual piece-rate production system, a request of Respondent that the Union agree to the abolition of the Christmas bonus, a request-by the Union for, and a denial, on the part of Respondent, to supply, facts and information to support Respondent's assertion.of low profits, an argument relative to Respondent's willingness to take the -credit for unilaterally announced wage increases and to have the Union bear the onus of elimination of .the Christmas bonus, Respondent's complaint concerning bulletins disseminated by the Union, and Respondent's position that' only Attorney Milstead would handle grievances, the parties finally got down to talking about the contract itself. Lambert stated that apart from the question of wages, the Union would accept all the provisions of the September, 8, 1947, agreement. Kroll stated that there had been changes during the period between September 8, 1947, and December 14, 1948, and that he wanted to go over each item seriatim. In order that there might not be any uncertainty at this stage of negotiations, respecting what the parties agreed to, Lambert proposed that a court reporter be engaged at joint cost to record the proceedings. "Kroll objected to this on the 'ground of expense and to the Union employing a reporter,at its expense with Respondent not having access to the record without the Union's permission.. To the Union's suggestion that each paragraph of the proposal be initialed as agreed upon, Respondent agreed to. be bound by its initialing for a period of 6 weeks (later extended through February and March). Kroll stated he was required by other commitments to leave the meeting and did leave the meeting before the reexamination of the contract had been com- pleted. Kroll stated Kratz would discuss the. new- piece rates with the Union between Christmas and New Year's before they were put into effect. 'When the piece rates were received, Lambert sent.them to the Union's engineering depart- ment for analysis. Upon receiving a report, Lambert informed Kratz that he had, been advised the piece rates were the lowest on record and requested tenta- tive permission to have a union engineer go to the.factory to prepare job descrip- tions and make time studies. Kroll had previously stated he would take such a request under consideration and let the Union know, but he did not do so On December 16, 1948, without consulting the Union as to its wording, or advis-, ing the Union it was going to post a notice, Respondent posted a notice of partial discontinuance of the Christmas bonus. This notice stated high production costs compelled a shutdown until January, with expected limited employment then and a' further possible bringing back of meritorious employees. On December 2, 1948, a union committee had requested its members to do no more work than they could do, not to sacrifice their health, and to report any foreman exacting an exaggerated quota. On December 17, Respondent furnished the Union a.list of 'job classifications and piece rates on one type of trousers. At a meeting held on December 30, 1948, Kratz advised Lambert he was not empowered to make any changes in the piece rates, that he was not authorized respecting objections td seniority , classifications , contains a change in discharge provisions objected to in the earlier document, includes a different agreement concerning the goal of wages than requested by the Union concerning which Respondent in the earlier proposal stated changes in wages could not be made at that time, eliminates a provision concerning insurance to'whieh Respondent did not agree, contains an amended provision concerning vacations in lieu of the unacceptable clause set forth in G. C. Exhibit 6-0, and contains no provision respecting secondary boycotts , same having been deleted in the ' earlier a UNION MANUFACTURING COMPANY 807 to bargain with the Union on any matters, and could not commit himself. Accord- ingly, the Union gave up meeting with him and did not ask for any more confer- ences with Kratz on the subject'of piece rates. A meeting was to have been held with Kroll the first week on January 1949, and by December 30, the meeting had been moved up to January 10.u Kroll did not attend the January 10 meeting but did appear on the 12th. About January 10, Lambert first heard of a revision of rates of pay for various operations in the making of pants, which canceled a De- cember 6, 1948, schedule and had been made effective January 10, without advice to or consultation with the Union. On January 10, Nathan Kazin, a member of the Union's engineering staff, and Kratz discussed the matter of the engineering basis upon which Respondent's piece rates had been set up, including base rates, tolerances, such as delay, rest, and,fatigue; and the amount of incentive allow- ances in excess of tolerances. Kazin asserted that the incentive spread was apparently insufficient and that he would be unable to arrive at an intelligent appraisal of piece rates without making independent studies in the factory. Kazin was informed that Respondent would neither allow time studying by a union engineer in the factory nor an independent investigation of rates and that Respondent would permit nothing more than a discussion of rates. Kazin stated that in view of Respondent's position he would have to draw up, by way of 'counterproposal, a set of piece rates in a blind fashion. At a meeting held on January 12, 13, and 14, "1949, Lambert again requested Respondent , through Kroll, for permission for a union engineer independently to check Respondent's piece rates. Either Kroll or Wynn informed Lambert- that Respondent was not required to allow such study. Lambert learned for the first time that in addition to the revision of piece rates, Respondent was insisting on removing the 65-cent an hour minimum wage plus the 5-cent an hour cost-of-living bonus which had made an effective 70-cent hourly minimum and upon establishing the statutory minimum of 40 cents an hour plus a piece- rate scale. The Union's position was that this constituted a unilaterally imposed pay reduction: Respondent's position was that the plan would not result in reduced earnings . It was finally agreed Respondent would retain the existing scale for a period of 6 to 8 weeks while the. new piece rates were being worked out. Further talk concerning piece rates was to the effect that Respondent in- sisted they were correct. On this day, the Union presented to Respondent its proposed piece-rate schedule. In general these rates were double those estab- lished by Respondent., The Union admitted the rates were submitted for bar- gaining purposes because it had not been accorded an. opportunity to arrive at intelligent or scientific figures, due to Respondent's refusal to allow it to make studies. This again brought up the matter of job descriptions. The Union contended that without job descriptions, Respondent could set a given piece rate and then by changing the handling of a garment could cut wages to the extent that piece rates would be meaningless unless a complete and minute description of each motion which an operator would be required to per- form, were supplied. At alater date, subsequent to March 4, the Union supplied Respondent with job description forms for filling out's . Respondent never furnished the Union with job descriptions. The Union requested that-Respond- ent check off dues. (Article 2 proposal submitted December 14, 1948.) Kroll 11 On January 8, 1949, by telegram , the Union renewed a request that its engineer be permitted to time study the rates at the El Paso factory. Respondent replied it could not permit the Union's engineer to make a survey. 1a Oscar E . Kratz testified that acquiring the information necessary to complete the sup- plied forms was a usual procedure in preparing job descriptions. 808 DECISIONS.. OF NATIONAL LABOR RELATIONS BOARD stated he would not agree to a checkoff clause. In response to a direct question: as to whether Respondent refused to bargain on the checkoff, Attorney Wynn-, for Respondent replied, "We don't want to talk about the check -off any more. Mr. Kroll's answer is 'no.' That is the way it will stand." The rest of the meeting was occupied by a discussion of the proposed contract submittted on. December 14, 1948. By January 14, 1949, the parties agreed concerning the following articles : Recognition of Union as exclusive bargaining agent ; hours- of work ; bulletin board ; health, sanitation , and safety ; no contracting or subcontracting ; pay for reporting time ; waiting time ; and layoffs and dis- charges. By then or later further agreements were made concerning additional provisions respecting leaves of absence _for union activities ; noninterference in collecting dues ; strike clause ; and seniority. The Union again asked Respondent for hospitalization , surgical , and sick leave. benefits, a subject that had been frequently broached before. Kroll replied the Union knew his position on this matter and that he could see no point in discuss- ing it further. It was understood that the parties were to meet again within. the 6-week period during which those agreements which had been mutually initialed were to be in force and the Respondent agreed to give the Union, at the next meeting, copies of any or all changes or subsequent revisions in piece- rates. To Lambert's telegram suggesting another meeting on February 9, 1949,. Kroll replied February 15 was the earliest available date. Kroll also indicated a premeeting conference might be held between Kratz and a union engineer. In reply, the Union,, wrote Respondent that in view of, the' many piece-rate revi- sions made by Respondent , it felt that the original basis for their establishment must have been unsound and that it perceived no purpose in an engineering consultation absent permission independently to check the time studies and engineering layout of Respondent's plant. It 'requested that until such time as Respondent should give the Union an opportunity for evaluation of Respond- ent's piece rates by permitting a union engineer to make independent time studies in the factory, bargaining on piece rates should be based on the employees' evaluations of their abilities to produce sufficient work to enable them to achieve proper earnings. On February 1, 1949, the Union telegraphed Respond- ent that February 15 would be a satisfactory meeting date providing Respondent would grant a 2-week extension of an agreement not to discharge employees for failure to make 70 cents an hour at Respondent's proposed piece rates, and the agreement that the initialed sections of the contract submitted on December 14, 1948, should be binding. Kroll replied he was submitting these statements and requests to Respondent's attorneys for specified- clarification . Attorney Wynn requested a postponement - of the - meeting until-the. -week . of February 21, and later informed the Union he was asking Kroll to make a reservation to meet with the Union at El Paso on February 28. The meeting eventually took place on March 2, 3, and 4. It was attended by Kroll, Kratz, Milstead, and apparently Mr. Amil Rosenberg, an engineer, in behalf of Respondent , and by Lambert, Anchondo, and a committee of employees. The positive and negative results of the meeting were as follows : It was agreed that wage rates for the cutting department would be as follows : Per hour Range for spreaders____________________________________________ $0.65-$0.75 Range.-for cutters----------------------------------------------- • 80- .95 Range for cutters and markers_ _______________________________ 1.00- 1.20 With reference to the shipping department, the following was proposed by Respondent : That the minimum hiring rate would be 65 cents per hour, and UNION `MANUFACTURING ' COMPANY 809 "` that the present hourly wage rates of 821/_> cents for shippers and 871/2 cents for 1 shipper would not be reduced . It was pointed out that the shippers no longer receive an incentive bonus as previously , and the Union' asked for something to offset this. The Company then proposed that when .production averaged 1,800 dozen for a period of three successive weeks, to increase the shippers ' compen- sation 5 cents per hour and that the cost-of -living bonus be reduced or eliminated by the Company at its discretion. This was not agreeable to the Union. With respect to the numbers, the minimum wage . Was set at 65 cents per hour. As to utility operators , the range was set from 70 cents to 75 cents per hour. With reference to the mail order clerk , the wage was set at 65 cents per hour. With reference to employees on the shirt line, for so long a time as they should remain on an' hourly pay basis , the `fate was set at. 65 cents per hour, plus the incentive bonus for production , in excess of 225 dozen. Such excess over 225 dozen was to bear a bonus as follows : 1st 6 dozen excess-- -------------------------------------------------- $0.78 Next 8 dozen excess-------------------------------------------------- 1.24 Next 11 dozen excess----------------------------------------------- 1. 98 For the hourly employees making jackets , tommies, and/or juveniles , as well as any new production at hourly rates, the minimum was set at 65 cents per hour for such time as production should be on an hourly basis. No provision was made or agreed upon for apprentices and learners . For inexperienced operators who worked on piecework rates, a minimum hourly rate during training was set at 50 cents. For inexperienced -.operators. working•,.at an hourly rate, 50 cents was agreed to during their period of training. In addition to the foregoing rates it was agreed that Respondent could con- tinue paying the 5-cent per hour cost-of-living bonus but no agreement was reached as to under what conditions this cost -of-living bonus could be withdrawn or changed , the Company contending for the right to change it or discontinue it at its own option and from time to time, so long as it did not exceed 5 cents per hour and the Union insisting on the right to have a veto on it or set up a yardstick which would control. It was agreed that if an operator was transferred to a new operation against her wishes for a period of time not exceeding a week, she would be guaranteed her average earnings over the preceding 30 days. It was agreed that an em- ployee on piecework assigned to a new and different operation would receive fifteen working days makeup pay . It was agreed that the section with reference to the bulletin board would be amended so as to provide that the Union would not use the bulletin board for criticizing .the Company or any of its officers or representatives: The Union asked for a provision to the effect that there would- be no wage increase nor granting of other economic benefit not provided for in the contract without the written consent of the Union. The Company was agreeable to advising the Union in advance of the granting of any wage increase or economic benefit and giving the Union an opportunity of negotiating same, but would not condition the granting of same on the Union's consent. No agreement was reached in this respect. It was agreed that a member of the union grievance committee in the plant could check with the payroll clerk (without cost to the Company ) any employee 's earnings card when and if requested by such employee. With reference to piecework rates on new types of work , Respondent insisted on fixing such rates; the Union requested makeup pay for' 8 weeks , and the Company was agreeable to only 4 weeks , but stated it might consider 5-weeks. No final agreement was reached. 810 ' DECISIONS OF --NATIONAL LABOR RELATIONS BOARD The Respondent was agreeable to' continuing its existing vacation arrange- ments, and the Union requested a more liberal vacation plan. No agreement was reached on this subject. The Union requested a procedure for bidding on jobs. Respondent was not in agreement. The'Union requested a more favorable practices clause. Respondent was not agreeable ; and in lieu thereof it was agreed that the 10-minute rest period would be continued "during which the employees will not be required to work," that a no-wage assignment clause would be inserted , that the Company would continue the $500 life insurance policies on its employees , that the Company would give letters of recommendation-to satisfactory employees on termination of their work or on request of an employee for immigration purposes, or for moving to another .city, and Respondent would continue its present practice of permitting limited collections for gifts, flowers , etc., to the extent permitted in the past, provided advance request was made of the plant manager. The Union brought up the matter of job descriptions . Neither party had any job descriptions available for discussion , and the Union said it would furnish the Company the job description forms upon which it would like to have job descriptions specified . The Company neither agreed -nor disagreed with reference to this, but said that on receiving the forms, it would advise the Union how it felt about this at the next meeting. ` Discussion of'the duration of the contract was postponed until and unless the other provisions thereof were agreed upon. On March 7, 1949, - Respondent, without notice to or consultation with the Union, notified its employees that thereafter makeup pay would be discontinued to employees who have worked at the' same or similar operations continuously for 4 weeks. Anchondo testified that .about the first of April1949 he was notified by Attorney Milstead that Kroll would not meet with the Union at a session that had been set for the week of April 4 because the Union had filed a charge 18 against Respondent.14 This meeting was to have been attended by Mr. Frank Ashe of United States Conciliation Service. About the middle of April Milstead was notified the Union had withdrawn its charge, without prejudice, for the purpose .of resuming negotiations. ' On April 26 , 27, and 28, 1949, a meeting; at which Miss Frieda Schwenkmeyer, experienced in union matters affecting the clothing industry , was the Union's main spokesman , was held with Kroll, Kratz, and Milstead representing Re- spondent. Miss Schwenkmeyer declined to talk about wages until she was given a chance to have someone go into the plant to study and learn more about piece 'rates. Kroll indicated he would send Rosenberg , above identified as Respondent's expert on piece rates , from Los Angeles to discuss rates with Miss Schwenkmeyer. The upshot of a discussion regarding arbitration was that Respondent requested Miss Schwenkmeyer to present a proposal in writing . Miss Schwenkmeyer complied by submitting the following : 13 Note 8 (a) (5) charge in Case No. 33-CA-21 filed April 15, 1949. 14 Kroll did write Wynn on March 28, 1949, that in view of the filing of the charge, he did not believe it would be in order to plan on any meeting with a conciliator or with the Union the week of April 4 or consider any date until the "complaint-charge is entirely clear." However, Wynn wrote the Union on April 2 to the effect that the conciliator was not disposed to intervene when a charge was pending and, that Respondent had not refused to bargain. Accordingly, I consider the 'evidence insufcient to warrant a finding that Respondent would not meet with the Union during the week April 4, 1949, because a charge had been filed by the Union, and believe that Anchcndo labored under a misapprehension as to the reason for canceling the meeting. UNION MANUFACTURING COMPANY 811 Any complaint , grievance or dispute arising under; out of or in connection with or relation- to this agreement, or the interpretation of performance thereof, shall be first submitted to the representatives of the parties for adjustment. In the event that any such matter is not adjusted within five (5) days after receipt of notice as provided for above , then such matter shall be re- ferred to for arbitration to an impartial chairman, agreed upon between the parties . If the parties are unable to agree upon an impartial chairman, he shall be such person as is designated by the Director of the Conciliation Service - of the United States Department of Labor. The decision of such Impartial Chairman on any and all matters shall be final , conclusive and binding upon the parties hergto and shall -be .fully enforceable in a Court-of appropriate jurisdiction . Failure of the Employer to comply with the de- cision of the Impartial Chairman, shall, however , relieve the Union of its responsibilities under the first sentence of this Paragraph , and it shall be free to take such action to secure compliance with such decision as it may elect. The Arbitrator shall have the authority to include in his award any mandatory or injunctive provision that he, in his discretion , deems appro- priate. The impartial Chairman designated under this agreement shall not be-required to take an arbitrator 's oath. By the date of the April 26, 27, and 28 , 1949, meeting, the time within which agreements as evidenced by the initialing of separate paragraphs were to be regarded by the parties as.binding , had elapsed, and Miss Schwenkmeyer stated in substance that she desired ,ta1start negotiations anew. About the middle of May 1949 a conference was held between Anchando,. Schwenkmeyer, Rosenberg, Kratz, and Milstead relative to piece rates. As Rosenberg stated he had no authority to agree concerning piece rates and was. only present to discuss the subject , nothing was accomplished. The next meeting was held on June 16 and 17, 1949. Present were Schwenk- meyer, Anchando , Wynn, Kroll, Milstead , Kratz, and Mr. Frank Ashe of the Conciliation Service of the United States Department of Labor . Miss Schwenk- meyer, in addition to presenting the clause respecting general arbitration as requested by Kroll in April , also submitted for, consideration clauses con- cerning vacations , general changes in wages or working conditions, division of work, insurance, shop practices, pay for reporting time,. seniority , stabil- ity of piecework earnings, access to factory, and union security . Some of these clauses contained matters not included in the proposed contract submitted on December 14, 1948, portions of which had been temporarily agreed to , as herein- before set forth , by the parties at meetings prior to April . Wynn criticized Schwenkmeyer for introducing new clauses for consideration and stated that as far as he knew , new propositions should not be taken into consideration. Anchondo told Wynn the time for the continuing effectiveness of agreements pre- viously made had run out and he considered that the Union had a right to intro- duce new matters for discussion. The union-security proposal, not enforceable in Texas, was dropped. Schwenkmeyer agreed to continue to talk about the De- cember 14, 1948, proposals, and did talk about them for 2-days. On June 17 there was a discussion concerning the proposals made by Schwenkmeyer on June 16. Respondent did not agree to any of them . It asked Schwenkmeyer if she would sign a contract covering articles previously agreed upon by Lambert and she replied she was not willing to do so. Ashe asked Respondent to give -the Union 2 counterproposals , 1 containing previously initialed paragraphs and what- ever clauses - concer ingl_which the parties were apart , and the-other, containing a short counterproposal including some arbitration clause. Respondent agreed 812 DECISIONS OF NATIONAL LABOR ' RELATIONS BOARD and asked time until the first of August. After August 8, 1949, through Ashe, Anchondo received the Respondent 's two counterproposals which consisted of (1) clauses previously agreed upon with the exception of a provision relating to leaves of absence for union activities ; (2) an alternate proposal containing 12 paragraphs incorporating clauses substantially similar to those previously offered by Respondent ; and (3 ) a set of some 18 principal and 7 subsidiary house rules with a conclusion , which were to be made an integral part of each contract. Although various features incorporated in these proposals were not satisfac- tory to the Union, it, upon Ashe 's suggestion or recommendation, submitted them to a vote of the union membership at a meeting held about August 20, 1949, previous to which time Anchondo or Lambert had issued a leaflet setting forth reasons for not recommending acceptance of either proposed contract . All voting members except one voted to reject both contracts. On August 27, 1949, Kroll wrote Anchondo that in view of this rejection , griev- ances thereafter arising would be handled by Anchondo writing Respondent a letter signed both by himself and the employee involved, giving a full statement of facts and Respondent's written reply, to be followed by a discussion if further attention became necessary . The Union informed Kroll this arrangement was unsatisfactory . Lambert telegraphed Kroll on September 9 *pointing out that 2 .weeks earlier Kroll had said he would , within 10 days,, notify him of a meeting date and requesting an immediate setting of - a date. On September 16, Kroll wrote Lambert he hoped to be able to talk about a possible meeting when he next came to El Paso. On September 21 Lambert made a telegraphic request for a meeting on September 29. Kroll replied by inquiring if new proposals were necessary in view of the union vote rejecting earlier proposals . On September 27 Lambert wrote Kroll to the effect that there had been a meeting of minds on a great many sections of Respondent's proposals, but that it would seem preferable to leave all sections of the contract open for discussion in view of Lambert's interpretation of Kroll 's position to be that Kroll considered all previous tenta- tive agreements made by Respondent to have been canceled by the employees' vote of rejection , and confirmed the September 29 meeting date. Lambert came to El Paso from Dallas , a distance of 630 miles , on September 29 but no representative of Respondent appeared . That morning Lambert re- ceived a telegram from Kroll, forwarded from Dallas, dated September 28, stating .he. could not attend a meeting in El Paso since he was preparing to go on a trip starting the following Monday. A meeting for further consideration of Respondent's proposals was held on January 6 and 7, 1950 , there having been no conferences since June 17, 1949. Before discussing the proposals , however, the matter of certain grievances was gone into. The Union claimed, and Respondent did not deny , that a unilateral change in piece rates for pocket operations had been made just prior to Christmas 1949. Kratz maintained that the change was required by an alteration in the type of pocketing. The Union's position was that it did not object to Respondent changing the type of pocketing but did not object to Respondent putting into effect piece rates that the Union felt reduced earnings, without advice to or consultation with the Union. Respondent refused the Union's request to revise these piece rates upwards . Lambert asked Kroll if Respondent intended to establish the 75 cents an hour minimum wage rate under the amendment to the Fair Labor Standards Act. Kroll stated this was no concern of the Union . When asked, assuming Respondent should pay the 75 -cent minimum, would it sufficiently in- crease piece rates to assure an incentive spread, Respondent for the first time informed the Union the incentive spread was based around 80 cents an hour. UNION MANUFACTURING; COMPANY 813 Then Kroll stated he would not discuss new piece rates and that he did not know whether Respondent was going to have'to pay the 75-cent minimum. Lambert stated that if Respondent (lid not pay the (5-cent minimum, the Union would institute suits under the Fair Labor Standards Act.' With respect to the. contract, the Union urged that apart from wages Respond- ent's Los Angeles plant was paying, thegeneral- benefits of any contract, including hours, grievance procedure, senioli,ty, and other, items that go to make up the body of a collective bargaining agreement, should be no less than those provided for in Respondent's Los Angeles contract. Kroll refused to discuss the Los Angeles contract. The Union agreed that the general form of the rules incorporated in the August 8, 1949, proposals, seemed to be acceptable although it was uncertain of their enforceability. Certain changes in the 7 subsidiary house rules were agreed to. Kroll again objected to the Union's request that a factory committee be allowed to meet with the plant superintendent concerning grievances. To a request that the superintendent make himself available within 5 days to an-employee having a grievance, Kroll stated his viewpoint was that that feature was already covered. The Union then asked for arbitration as a terminal point in the grievance proce- dure. Kroll expressed unalterable opposition to arbitration of any sort. The Union requested that an employee be given 24 hours' notice of discharge for cause other than for 4 designated reasons. "This request was not granted. With regard to seniority, subsidiary, house rule 5 concerning layoffs subordinated. seniority to Respondent's judgment of its employees' ability. and qualifications, and was not acceptable to the Union. The Union's request that Respondent reoffer an agreement that in making promotions and in reducing and recalling working forces, it would give consideration to seniority as well as ability-and efficiency, was refused. Then followed a discussion of some 18 principal house rules. The Union requested that Respondent revert to the proposals enclosed in its letter of August 8, 1949; with respect to rules 1 and 2 dealing with hours of work and overtime. Respondent did not agree in regard to rule 1 and the subject was passed for later discussion. Respondent also said it would consider the Union's request for a modification in rule-2 until a further meeting or sooner. The Union's request that there be stricken a reference concerning not asking for credit in the lunchroom and keeping it clean and orderly was not granted by Respondent. An agreement wa 'reached on rule 4 concerning holidays. With respect to vacations, Kroll stated he would consider the Union's request they should he granted during the summer months. Respondent declined to agree to the Union's request that provision be made that layoffs should not be made just before the beginning, or after the ending of the vacation period. The Union agreed to house rules 6 and 7 concerning time cards and change of name and address. The Union requested that the word "certified" before the word "illness" be deleted from house rule 8 relating to the automatic separation of employees taking more than 3 days off except for illness. It argued that the word-"certified" was difficult of interpretation. Kroll stated Respondent wanted complete control of determining who was ill'and who was not ill. As to the use of the- company bulletin board, covered by house rule 10, Kroll stated that as of the time of the meeting, he had no objection to its use by the Union but reserved the right to object when the parties met again. The Union objected to that part of house rule 11 which forbade all reading in the factory and Respondent agreed to change it to forbidding the reading of periodicals and books. The Union agreed to house rules -12 and 13 relating to membership in outside organizations and protection of •laws. The Union again asked for hospitalization and surgical benefits and sick 814 DECISIONS ` OF,rNATIONAL - LABOR I RELATTIfllVS. BOARD pay allowances in addition to the $500 group life' insurance provided for in house rule 14. Respondent again declined to accede to the Union's request. The Union agreed to house rules 15 and 16 relating to loans and the carrying of packages away from the plant. Kroll stated lie would consider the Union's request that house rule 17 be extended to permit a representative of the Union to telephone the shop foreman during working hours concerning grievances. The Union agreed to house rule 18 which concerned safety. Up to this point, the matter of wages had not been discussed. Kroll stated be was obliged to.leave the meeting just after the Union proposed some provisions, including one regarding payment for waiting time after 15 minutes any 1 day, one regarding reporting time pay, and one regarding pay for work on oiling and care of machines. Kroll stated he did not have time to discuss the matter of.wages but desired to talk about a slowdown on pocket operation lines and that the occa- sion was propitious for the Union to show it was cooperating and for the exist- ence of a good mutual relationship between the parties. Lambert stated that if there had been any slowdown, in his opinion, Respondent was responsible because it had made a unilateral change which slowed up the pocket operations, destroyed earnings, and the morale of other employees on the line to a point where they were not interested in getting out production.. Kroll then announced that he was going to put up a notice that unless production increased immediately, there would be a 3-day layoff for employees on any line that did not increase produc- tion. Relative to Kroll's suggestion that the Union should manifest its coopera- tion, Lambert stated the Union did not owe Respondent a "damn" thing and that if there were a layoff the Union would consider it a lockout resulting from a viola- tion of the.Act in a unilateral change of wages and would file charges, and that. if there were any more unilateral changes of that sort, the Union was going to re- file charges and that this time they might go through the Fifth Circuit Court of Appeals for enforcement. In concluding this meeting, the Union asked that there be a meeting before January 25, 1950, since by that time Respondent would know whether or not it would put the 75-cent hourly minimum wage into effect and that the Union felt piece rates would have.to be discussed prior to that time, otherwise there would be other unilateral changes. Kroll stated he would meet with the Union between February 1 and 10. On January 10, 1950, Lambert wrote Kroll and wrote Respondent's attorney,. Milstead, indicating that the Union desired a few minor changes in the proposals: discussed January 7 which would not change the intent of the contract proposed. by Respondent. In the letter to Kroll, Lambert stated that he had been advised the 75-cent minimum wage provisions applied to Respondent's El Paso factory anc1 accordingly he was of the opinion there was more reason than ever to resume bargaining before January 25. Lambert added that from Respondent's, own figures, the advent of the 75-cent minimum wage would make it impossible for the average employee to earn more than 6 or 7 percent in excess of the new minimum and that the piece-rate incentive would be wiped out entirely. He wrote that he would either send Milstead a copy of the proposed changes, or if Milstead pre- ferred, discuss them jointly at a conference which it was suggested should.take place on January 19, 1950. No reply having been received as to whether it was preferable to have the proposed changes forwarded to Milstead or discussed in conference or when a meeting could be held, Lambert again wrote Respondent on February 1, 1950, for advice as to the exact date on which Respondent proposed to have a meeting take place and drew its attention to the fact that one of Re- spondent's El Paso competitors had granted.its employees Blue Cross and Blue Shield Hospitalization and Surgical Insurance coverage, thus, in his opinion, providing grounds for. further -discussion of that subject. Respondent replied it UNION MANUFACTURING COMPANY 815 would be about February 18 or 20 before a meeting could be , held and suggested the Union send Respondent the 'particular portions of'fespondent 's counterpro- posal which were acceptable to it or such amendments as the Union should re- quire in order to render the provisions acceptable. On February 10, 1950, Lambert -wrote Respondent that the Union was disturbed by the proposed postponement of the next conference, that it felt Respondent was refusing to bargain , that it had no alternative other than to file charges with the Board; and that it had been advised Respondent had taken unilateral action -without notification to the Union in what it considered to be a removal of the .5-cent per hour cost-of-living bonus's thus effectively changing wages. Lambert stated, however , he would be pleased to meet with Respondent on either February 18 or 20 but that, lacking further discussion and exploration of each other's condi- tions, it would be as impossible for the Union to outline all its . minimum require- .meats as for Respondent to decide upon its maximum concessions . Lambert fur- ther set forth five proposals relating to the duration of the agreement , e job de- .scriptions, pay for jury service , severance pay, and time off for State and Federal voting which the Union asserted it had not previously had an opportunity to bring to Respondent's attention at the January 7 meeting because Kroll had to leave and was unable to give further time to discussions. On February .16, 1950, Kroll wrote Lambert that Respondent had received a• charge the Union had filed on February 14, 1950, and was postponing any meet- ing until the situation had been clarified . On March 10, 16, and 17, 1950, An- -chondo attempted to process some grievances with Kratz. The lattter stated grievances would have to be reduced to writing. When Anchondo declined to write out the complaints , Kratz stated Kroll had instructed him not to discuss any grievances with Anchondo. On March 17 , 1950, without notice to or consultation with the Union, Re- spondent granted a 71/2 cent an hour wage increase to its . employees. ss Kratz testified as follows Q. And when the Minimum Wage Rate Act of 75 cents an hour went in in January, did the company then pay the' employees ^a minimum ,of 75 cents an hour plus a.five. cent cost of living bonus so as to make it 80 cents an hour? A. No, sir. It paid them a total of 75 cents. Those that were in make up, were .,guaranteed 75 cents. Q. So after the Wage and Hour Law went through, they were still at a 75 cent 'minimum?. ' A. That is right. The guarantee was a total of 75 cents. Q. And the company did not, then, in January or February pay plus the 75 cents, :another five cents so as to'bring it to a total of 80 cents? A. No, :sir. a r S • s s s Q. Now let me ask you one further question in that regard, Mr. Kratz. Prior to January 25, if an operator earned 72 cents on her piece rates, she would receive in total, 77 cents, that is, 72 plus the five-cent cost of living, or a total of 77 cents? A. That's right. Q. Now was that true after January 25 of 1950? A. If the operator earned 72 cents and-yes. In other words, that would put her earnings up to 77 cents an hour, certainly,, that's correct. From this testimony it is apparent that to the extent that minimum earned wages of 75 cents, exclusive of the cost-of-living bonus, was not paid to some employees, the differential between 75 cents and the actual amount earned was paid in order to comply with the 'requirements ,of the amendment to the Wage and Hour Law, and not by way of a bonus. 'Thus within the range of that differential, this action amounted to a removal of the bonus, which by .definition is.an allowance in addition to what is usual, current, or stipulated. ,iB Lambert, expressed a desire that a contract should run only. for a,6-month trial period ibecause the type of agreement offered by Respondent contained no arbitration clause. 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On or about May 1, 1950, Respondent, without notice to or consultation with the Union, increased the pay of piece workers earning less than 75 cents an hour to the 75-cent minimum. On May 25, 1950, Respondent, without prior agreement with or notification to.the Union or previous discussion with the Union, except that on January 6 and 7 some of the rules contained therein were approved and some disapproved by the Union, posted a set of regulations in part substantially similar to the princi- pal house rules appended to the proposed contracts sent through Ashe on August 8, 1949, and in addition, including regulations concerning seniority, discharge, and grievance complaints. Article XI of one of Respondent's August 8, 1949, pro- posals and paragraphs 5 and 6 of the other, sent Ashe by Respondent on the same date, 'contained approximately 350 words relating to seniority as against the statement of 8 words appearing in the May 25, 1950, poster, that seniority starts on the ninety-first day of continuous employment. Article XII of Respondent's August 8, 1949, proposal stated that the manage- ment of the plant and the direction of the working forces, including the right to hire, suspend, discharge, transfer, and the right to relieve employees from duty because of lack of work or for other legitimate reasons, is vested exclusively in the Company ; provided that this will not be used for purposes of discrimination against any member of the Union. [Emphasis supplied.] The reference to dis- charge in the May 25, 1950, poster was that the Company has the unrestricted right to discharge any employee at its will. With respect tp grievances, Respondent's proposal of August 8, 1949, con- tained a lengthy description of procedure whereby grievances would be pre= seated to management through the intermediary of the Union. The May 25, 1950, poster instructed employees to take up grievances directly with the management. The May 25, 1950, regulations also contained clauses, none of which had been discussed with the Union, in extension of those appearing in the August 8, 1949, house rules. These additions included requirements of just cause for leaves of absence; advance requests for such leaves; a proviso that leaves working hardship on Respondent will not be granted ; a requirement that a doc- tor's certificate must be furnished upon return to work from sickness ; a statement that whenever business conditions or recessions develop it becomes necessary to reduce 'production and/or close down a unit or units temporarily or per- manently, Respondent will determine which employees are to be laid off ; and a stipulation regarding the selection for recall to work of employees with con- tinuous service of 90 days or longer. On October 20, 1950, Respondent without consulation with or previous notice to the Union, posted a notice of an increase in pay effective October 30, 1950, of 5 percent to piecework operators based on their piecework rates which to- gether with the cost-of-living bonus amounting to 6.5 percent of the current piecework, rates would be added to the current piecework rates ; and an increase in pay also effective October 30, 1950, to all time workers in an amount ap- proximating $2 per 40-hour week. D. Discussion In conducting collective bargaining negotiations , it is not to be expected that the parties will constantly meet day after day without interruption , until agree- ment or impasse is reached. But it ' is not enough to fulfill the obligation to bargain that an employer meet and negotiate with a union. The obligation of the Act requires that bargaining shall be conducted in complete good faith. UNION MANUFACTURING COMPANY 817 0 Although'the Act does not require or compel, agreement; it does require the parties to enter into negotiations with a sincere desire to reach and sign an agreement. Whether or not there has been compliance with. this requirement depends, of course, upon the particular- facts involved.. In Tower Hosiery Mills, Inc., 81 NLRB 658, enforced 180 F. 2d 701 (C. A. 4), certiorari denied 340 U. S. 811 (October 9, 1950), the Board stated: The Respondent, it is true, went through many of the motions of collec- tive bargaining. It met on numerous occasions with the Union, conferred at great length regarding contract proposals, made concessions on minor issues, and discussed and adjusted several grievances. These surface indicia of bargaining, however, were-nullified by the Respondent's manifest, deter- mination to deprive the Union of any voice in determining such major issues as wage rates and working conditions. Such conduct on the part of the Respondent demonstrates that its participation in discussions with the Union was not intended to lead to the consummation of an agreement with the Union, but merely to preserve the appearance of bargaining. Whether given incidents evidence a refusal to-bargain in.good faith must be determined not by looking at the incidents in isolation but in the context in which they occur. It thus, becomes the duty of the person charged with the responsibility of resolving the sharply disputed question as to whether or not the Union and Respondent negotiated with a sincere desire to reach and sign an agreement, to explore all the relevant evidence in an effort to discover the impulses of the recesses of-the mind where motives are manufactured. In cases of this character, more perhaps than in most litigation, one gets the uncom- fortable impression that what appears in- the record represents only the seventh of the iceberg above water. Yet conclusions must be -reached upon the pre- ponderance of "substantial evidence on the record considered as a whole."" To the task of considering the record as a whole and making findings of fact and ascertaining motive (the test.of legal wrong) based upon substantial, evi-. dence therein and upon inferences that may be reasonably drawn therefrom, I now address myself. Concluding Findings It is incumbent upon me to find whether. the conduct of either party tends cumulatively to indicate its unwillingness sincerely to,desire to reach and sign a contract,' or indicates its la(!k of disposition to reach a mutually satisfactory agreement, or discloses absence of genuine cooperation. In fine; I must deter- mine whether or not negotiations were carried on in legal good faith.18' In arriving, at this conclusion, I have regarded the totality of the evidence and have not regarded any single act or fact as necessarily determinative. No findings as to whether events occurring before September 23, 1948, con- stitute unfair labor practices have been made. They play no part in arriving at conclusions except to the extent of their being weighed in determining the significance of otherwise equivocal conduct which took place after September. 22, 1948. Upon consideration of the entire record I have come to the belief that the totality of the following conduct of Respondent indicates a desire to undermine the Union as the designated representative of its employees and constitutes a failure to bargain in good faith. 11 § 160 ( e), Title 29 U. S. C. 1SN. L. R. B. v . Tower Ho.eferp Mills, Inc., supra, 180 F . 2d 701 ( C. A. 4), enforcing 81 NLRB 658 . certiorari denied 340 U. S. 811 ( October 0, 1950). 818 DECISIONS' :OF NATIONAL LABOR RELATIONS BOARD While each of the acts that is about to be set forth is not necessarily conclusive in and of itself, each has a definite probative force, which, combined with other related conduct impels the conclusion that-Respondent has violated the provisions .of Section 8 (a) (5) and 8 (a) (1) of the Act: (a) The withdrawal of payment of production bonus to ship pers in the fall of 1948, without notice to or consultation with the Union."' (b) The revision of pay for pants operations on January 10, 1949, without notice to or consultation with the Union 20 . (c) The discontinuance of makeup pay on and after March 7, 1949, to em= ployees who had worked on the same. or similar operations for 4 weeks. (d) Refusal to continue negotiations and postponement of meeting requested for February 18 or 20, 1950, until the situation respecting the filing of a charge had been clarified 21 (e) Granting pay increases to employees on March 17, 1950, and on or about. May 1, 1950, without notice to or consultation with the Union22 (f) Posting, without previous consultation with or notice to the Union, of house rules on or about May 25, 1950, which omitted, rejected, or substantially changed provisions in the two contracts and accompanying house rules sub- mitted by Respondent August 8, 1949, and the provisions of house rules previously posted.` ,(g) Granting a pay increase on October 20, 1950, effective October 30, 1950, -without notice to or consultation with the Union24 .(h) Insisting upon conditioning the execution of a contract on handling of grievances, through only one person selected by employees, or 'two l named ' per---'- .sons to be appointed by the Union, rather than, as requested by the Union, through a union-elected shop chairman and a grievance committee consisting of a representative from each production line and department within the bar- gaining unit and by unilaterally on May 25, 1950, instructing employees to direct grievances to management 2° Although certain conduct on the. part of Respondent which I have found to have been in violation of the. Act as well as other of its acts, which, as will sub- sequently appear, I have found not to have been violative of the Act, was not specifically alleged in the complaint or amendments thereto, such conduct and such acts were generally included in the allegation that conduct violative of ;Section 8 (a) (1) and 8 (a) (5) was not limited to acts specifically set forth in the complaint and the general allegation, contained in an amendment to paragraph 9 of the complaint, that Respondent had interfered with and re= .strained its employees in the exercise of rights guaranteed in Section 7 of the Act. Moreover, I find 'that these issues were fully litigated, and that conse- quently any variances that may, , be regarded as existing between the allegations' of the complaint and its amendments, and the ultimate findings, are immaterial: See N. L. R. B. v, Mackay Radio and Telegraph Company, 304 U. S. 333; N. L. R. B. v. Express Publishing Co., 312 U. S. 426. The General Counsel contends that Respondent postponed a meeting scheduled to be held during the latter part of March or the early part of April 1949 because 19 Bergen Point Iron Works, 79 NLRB 1073, pp. 1073, 3087, 1088. 29'Tower Hosiery Mills, Inc., supra, 81 NLRB, 658, p. 660; N. L. R. B. v. The Andrew Jergens Company, 175 F. 2d 130 (C. A. 9), enforcing 76 NLRB 363. 21 Sussex Hats, Inc., 85 NLRB 399, pp. 405, 407; The American Laundry Machinery Company, 76 NLRB 981. 22 Ozark Dam Constructors, et at., 86 NLRB 520. 23 Tomlinson of High Point Incorporated, 74 NLRB 681, p. 687. 24 Allen-Morrison Sign Co., Inc., 79 NLRB 903. 21 Bethlehem Steel Company, Shipbuilding Division, 89 NLRB 341. UNION MANUFACTURING - COMPANY' 819. of the fact that the Union had filed 'a charge` against the Company. , He also asserts that Respondent's declinations to grant the Union's request, to, be allowed an opportunity to have its engineer enter the plant and make time. and Job description studies, for checkoff of dues , for sick and hospitalization benefits, and for extended arbitration , each amounted to per se violations of Section 8 (a) (5). With these contentions I am unable to agree : As pointed out in footnote 14, I have concluded that the reason for the post-. ponement of the meeting which was to have been held during the week of April 4, 1949, was that it had been arranged that Ashe was to attend and that upon his learning of the fact that the Union had filed a charge, he expressed a dis- inclination to be present. I find that the General Counsel has not sustained the burden of proving that on or about the latter part of March or the first of April 1949, Respondent refused to meet with the Union because the Union had filed charges with the Board against Respondent. There'is no question that Respondent repeatedly refused to grant the Union's requests to be allowed to make time studies, for checkoff,' for additional in - surance benefits, and for extended arbitration. Although these refusals may properly be weighed in conjunction with a determination of the basic question as to whether the failure to grant concessions in the give and take of bargaining is indicative of a lack of legal good faith, I find that the Respondent's conduct in these four particulars was not in and of itself violative of Section 8 (a) (5) of the Act. The General Counsel has laid particular stress upon Respondent's refusal to allow the Union's many requests . to make engineering time studies and has argued that it is an established Board doctrine that- if a company on any grounds refuses to grant wages and refuses to allow a union access to information whereby a union can intelligently determine whether the grounds' of refusal are valid, such conduct amounts to a refusal to bargain . He asserts that because of this refusal , the Union had no adequate knowledge upon which to determine upon what factors Respondent established its employees' wages. He, in effect, has contended that in this case there should be an extension of the principle which has been well settled by such cases as General Controls Co., 88 NLRB 1341, that under certain circumstances a company refusing to give information, the supplying of 'which is not burdensome or time consuming to enable a union to bargain intelligently , is guilty of a refusal to bargain. I have not found any case, however, that goes to the extent of holding that a company must allow union representatives access to its plant for the purpose of making the type of studies and thereby acquiring the information sought in the instant case. True, a majority of the Board has held that in view of a company 's invita- tion to a union to conduct its own engineering studies at the plant, and under all the circumstances of the particular case, the company's refusal to comply with a union's request for payroll records and job specifications was not violative of Section 8 (a) (5) of the Act ze But I do not construe this holding to stand for the reverse proposition that -under different circumstances in other cases, a company is required to allow a union to undertake its own time studies. Here, Respondent supplied the Union with information concerning-job classifications and piece rates which I find on the testimony of Oscar E . Kratz was expertly and scientifically pre- pared. As Lambert pointed out, the Union could acquire information based on the employees' evaluations. In this manner , the Union could have arrived at some standard for determining whether the piecework rates established by Respondent were sufficiently high to allow a margin for incentive., The General 20 Croynvton-Highland Mills, Inc., 70 NLRB 206. 961974-52-vol. 95-53 '820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Counsel's point would have been stronger had it appeared Dispensa or Schwenk- meyer had catechized employees and still had been unable to procure informa- tion sufficient for discerning dickering. The Union's request was made without limitation as to the time to be spent by its engineer in Respondent's plant.or the precise extent of the investigations which he might make. Although I conceive that a refusal to grant a request for an investigation of the character sought here, if circumscribed and limited in its extent, might under certain circumstances be regarded as an indication of a company's refusal to bargain, I, with some hesitation, conclude that under the facts of this case, Respondent's. conduct in this regard was not violative of the Act and shall therefore recommend dismissal of the allegation that Respondent's refusal to permit a union engineer to make a study of Respondent's piece rates and the data upon which they were established violated the Act. With respect to Respondent's refusal to grant the Union's three other requests for checkoff, sick and hospitalization benefits," and extended arbitration '21 P find that these were matters upon which Respondent was not required to bargain. Even though in response to a direct question as to whether or not Respondent. refused to bargain concerning a checkoff, Wynn replied "We don't want to talk about check-off any more-Mr. Kroll's answer is `no."', I rule that this refusal was not per se violative of the Act2° I now turn to five other allegations in paragraph 9 of the complaint : (1) On or about November 11, 1948, Respondent, without notice to or con- sultation with the Union, discontinued production line No. 5. As there is no sufficient proof of this statement by substantial evidence I shall recommend the dismissal of this allegation. (2) On or about December 6, 1948, Respondent, without notice to or con- sultation with the Union, effectuated a change in the working conditions of its employees, by changing the method of paying its '.employees from an hourly basis to a piece-rate basis. As the Union approved this change in principle and questioned only the propriety of the piece-rate pay rates, I shall recommend finding this conduct was not violative of Section 8 (a) (5). (3) On December 8 and December 10, 1948, Respondent discontinued two other production lines without notice to or consultation with the Union. I find that this allegation was not proven and shall recommend its dismissal. (4) On or about January 10, 1949, Respondent issued a revised schedule of piece rates which canceled the rate schedule of December 6, 1948, without notice to or consultation with the Union. During the course of the meeting held on December 14 and 15, 1948, Respondent advised the Union, in effect, that when operations were resumed in January, piecework rates would be more widely established, that Respondent planned to provide rates that would assure em- ployees the same earnings they had received while working on an hourly basis and that in working out the rates, some adjustments, based upon experience, would be made if it were found necessary. Although the Union was uncertain as to whether or not the piece-rate earnings would be satisfactory, it did agree to the principle involved in the changeover and was not opposed at least, to upward adjustments that would assure to employees earnings equivalent to those they had been receiving. I find that in issuing this revised schedule, Respondent did not violate the provisions of Section 8 (a) (5) of the Act, and shall recom- mend dismissal of this portion of the complaint. (5) On or about the early. part of January 1949, Respondent reopened pro- duction lines without notice to or consultation with the Union. On December 21 But see W. W. Cross and Company, 77 NLRB 1162. 28 Union Manufacturing Company, 76 NLRB 322. 29 Union Manufacturing Company, supra. , l UNION MANUFACTURING COMPANY 821 27, 1948, Respondent wrote the Union respecting. the list of job classifications and rates it proposed using when the plant resumed its operations of January 3, 1049, and arranged a meeting with the Union for December 30 at which time Kratz informed Lambert he was not empowered to agree to any changes in the piece-rate structure to become effective when the ,production lines reopened. I find, therefore, contrary to the contention of the General Counsel, that the Union was both notified and consulted prior to the reopening of production lines in January 1949, and shall recommend this allegation be dismissed. Respondent contends that the Union did not evidence a sincere intention to arrive at an agreement and argues in support of this contention that the Union was represented at various times by different negotiators, that the Union shifted its position from time to time,. that it attempted to coerce Respondent Into signing an agreement, and that it conducted its dealings in a haughty, auto- cratic, vilifying, threatening, and uncooperative manner. I do not agree that the fact that the Union enlisted the services of Dispensa and Schwenkmeyer who were more familiar with the special problems involved in connection with the negotiation of a contract with an industry engaged in manufacturing men's clothes, than were Lambert or Anchondo, is an indication of the Union's lack of a sincere desire to bargain collectively with Respondent or excuses Respondent from good faith bargaining with the Union. Nor do I agree that the Union's having introduced new proposals or reverting to earlier discussions during the protracted course of the meetings, furnishes Respondent with a defense to the, allegations it failed to bargain with the Union.80 Respondent itself from time to time indulged in the same conduct, of insisting on starting discussions anew after tentative agreements, that it accuses the Union of employing. The tech- nique of any bargaining, whether it be collective or otherwise, involves reasonable allowances for backing and filling, before one party or the other can be convicted of lack of good faith. I find that the Union did not display a lack of genuine desire to arrive at an agreement by virtue of its changing its position from time to time during the 3-year period of negotiations and varying circumstances. which extended from February 12, 1947, to February 16, 1950, when Kroll wrote Lambert that Respondent had received a charge and was postponing any meeting until the situation was clarified. Were Respondent to prove a defense in this case, based upon the ground that the Union attempted to secure an agreement through coercion rather than by means of good faith bargaining, it must affirmatively establish such defense by .the weight of substantial evidence. This, in my opinion, Respondent has failed to do. Respondent points out that on December 2, 1948, through a union committee, Anchondo distributed a bulletin to employees stating that Respond- ent's forewomen had told employees "This is your quota, and if you, don't like it, we have others.who can do it." The bulletin went,on to add "We ask that all of you, men and women, to do no more work than you can do, and not sacrifice yourselves nor expose your health, and that you report to us any foreman who tries to exact from you an exaggerated quota-this organization will not permit that they try to make human machines of you-." It further appears that employees wanted to call a strike in 1949 in an effort to induce Kroll and Harris to come to El Paso to negotiate a contract. Anchondo told the employees who had experienced a costly strike they were within their rights to stay out for a whole hour or start late in the morning and that that was done on two successive mornings. Anchondo testified credibly that the purpose of this maneuver was m Respondent's obligation to bargain was a continuing one and did not terminate, assuming, arguendo, the Union may have refused to bargain on occasion . Times Publishing Company, et at., 72 NLRB 676. 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to get the Company to realize the Union's strength and that it meant to get a contract even if it had to strike the plant, although the Union did not want a strike, and thereby. induce Respondent again to talk contract. I _ Respondent contends that- such conduct on the part of the Union amounted to a slowdown and establishes the fact that it was not Respondent, but the Union, which refused to bargain in good faith. Its assertion that a so-called slowdown resulted in lowered production was not substantiated. When Respondent com- plained to Lambert that its output was being reduced, Lambert took the position that if the claim were true, the cause was disintegration of employee morale due to their inability to procure a. contract after long negotiations rather than to a deliberate cessation of normal efforts. Respondent declined to supply Lambert with any company records which might verify its claim of lowered production. At most the employees engaged in two single brief work stoppages, a technique frequently used by ineffectively represented employees who wish to call attention to their grievances and yet fear that the employer will single them out for reprisal if they step forward as individual spokesmen. Indianapolis Glove Company, 5 NLRB 231, 236. Such a "spontaneous work stoppage .. . is protected by the Act . . ." N. L. R. B. v. Kennametal, Inc., 182 F. 2d 817, 819 (C. A. 3) ; to the same effect see Gullett Gin Co. v. N. L. R. B., 179 F. 2d 499, 502 (C. A. 5), reversed on another point, 71 S. Ct. 337. . The Union at times undoubtedly employed forceful means to accomplish its desire to procure a contract. I do not agree, however, with Respondent that the -Union resorted to improperly coercive tactics to achieve its end. Rather, I•am ,of the belief the union officers conducted themselves in such a manner as to clearly demonstrate their genuine desire to fulfill what they honestly felt was the obligation a union owed- to its membership. Neither Respondent's characterizations of the Union's condunt nor the epithets the Union hurled at Respondent or its agents have any essential bearing upon the. determination of the issues. In view of the foregoing and upon consideration of the record as a whole, I find that from the fall of 1948 and at all times thereafter Respondent evidenced en intention to avoid its duty to bargain in good faith and thereby refused to bargain collectively with the Union and interfered with, restrained,. and coerced its employees in the exercise of the. rights guaranteed by Section.7 of the Act in violation of Section 8 (a) (5) and 8 (a) (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent as set forth in Section III, above, occurring in connection with the operations ,of Respondent as described in Section I, above, have a close, 'intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that' Respondent is engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirma- l ive action designed to effectuate the policies of the Act. Accordingly, I recom- mend that Respondent cease and desist from in any manner without previous consultation or notice to the Union withdrawing production bonuses, revising pay rates, discontinuing makeup pay, refusing to continue and postponing collec- tive bargaining negotiations on account of the filing or the pendency of charges, UNION MANUFACTURING COMPANY 823 granting pay. increases without notice to or consultation with the Union , posting house rules containing changes without notice to or consultation with the Union, and conditioning the execution of a contract upon the handling of grievances only through a person named by employees or two persons named by Respondent to be appointed by the Union rather than a union-elected shop chairman and committee. I also recommend that Respondent bargain collectively with the Union in good faith , that it resume bargaining negotiations with the Union as the exclusive representative of its employees in the appropriate unit and that it continue such negotiations with due dispatch , and embody any understanding in a signed agreement. Since it has been found that the evidence adduced is insufficient to sustain certain allegations of the complaint, as amended , it will be recommended that these allegations be dismissed. Upon "the basis of the above findings of fact, and . the entire record in the case, I make the the following : CONCLUSIONS of LAW 1. Amalgamated Clothing Workers of America, CIO , is a labor organization within the meaning of Section 2 (5) of the Act. 2. All of Respondent 's production and maintenance employees including opera- tors, inspectors, pressers , bundle boys, numerators or numberers , production counters, markers, cutters, shipping employees, machinists, and machinists' helpers at its El Paso , Texas, plant, exclusive of clerical employees , night watch- men, head shipper, plant manager, superintendent, foremen, foreladies , and all other supervisory employees with authority to hire, promote , discharge, disci- pline, or otherwise effect changes in the status of employees or effectively recom- mend such action, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9 (b) of the Act. 3. At all times material herein, the Union was , and now is , the exclusive repre- sentative of all employees in the aforesaid unit for the purposes of collective bargaining. 4. By failing and refusing at all times since the fall of 1948, to bargain with the Union, by the unilateral withdrawal of payment of production bonuses, by, unilateral revisions of pay , by unilateral discontinuance of makeup pay, by refusal to continue negotiations and postponement of bargaining meetings be- cause of the pendency of a charge , by unilateral grants of pay increases, by unilaterally posting changed house rules, and by conditioning the execution of a contract upon the Union 's adoption of Respondent 's provisions concerning the personnel of the Union's grievance representatives and the manner of their selec- tion, Respondent has failed and refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate . unit, and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8 ( a) (5) of the Act. 5. By said acts Respondent has interfered with , restrained, and coerced its employees . in the exercise of the rights guaranteed in Section 7 of the Act and has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2 (6) and ( 7) of the Act. [Recommended Order omitted from publication in this volume.]