Crompton-Higlhland Mills, Inc.

In the Matter of CROMPTON -IIIGHLAND MILLS, INC., and TEXTILE WORKERS UNION OF AMERICA, CIO Case No. 10-C-1812.-Decided August 21, 1946 Mr. Thomas T. Purdom, for the Board. Mr. Ralph Williams, of Atlanta, Ga., for the respondent. Mr. Kenneth Douty, of Atlanta, Ga., and Mrs. Clara Kanun, of Griffin, Ga., for the Union. Mr. Paul Bisgyer, of counsel to the Board. DECISION AND ORDER On March 25, 1946; Trial Examiner Irving Rogosin issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action designed to efFectuate the policies of the Act, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the respondent filed exceptions to the Inter- mediate Report and a supporting brief. On June 25, 1946, the Board heard oral argument at Washington, D. C., in which the respondent and the Union participated. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the respondent's exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusiois, and recommendations of the Trial Examiner, with the modifications and exceptions noted below. 1. The Trial Examiner found that the respondent, in violation of Section 8 (1) and (5) of the Act, failed to bargain collectively with the Union as the statutory representative of the respondent's em- ployees by refusing to furnish the Union with certain detailed infor- mation relating to the incentive wage plan and by granting a wage .,increase to its-employees without consulting the Union. Although we agree with the Trial Examiner's conclusion, we, however, rest our determination solely on the latter ground. As fully discussed in the Intermediate Report, the respondent, -during the course of negotia- tions with the Union, refused-to accede to the Union's wage demands 70 N. L. R. B., No. 21. 206 CROMPTON-HIGHLAND MILLS, INC. 207 and it was not until their last conference on December 19, 1945, that the. respondent made its first and only counterproposal of approxi- mately 1 to 11/2 cents an hour raise, which the Union rejected. There- after, the respondent made no further effort to settle the wage dispute but, instead, on January 1, 1946, only 12 days later, granted its em- ployees a substantially larger increase than that previously offered to the Union, without consulting the Union or affording it an oppor- tunity to negotiate with respect thereto. In our opinion, such action taken as soon after the Union was attempting, through the bargaining process to reach an agreement with the respondent, _ among other things; on wages, clearly shows that the respondent was not acting in good faith during the negotiations, and is manifestly inconsistent with the principle of collective bargaining. Nor are we impressed with the respondent's attempted justification for its action on the ground that the Union broke off negotiations on December 19 and that the respondent was therefore relieved of the obligation to deal with it. Concededly, the respondent never proposed to the Union as a pos- sible basis of agreement a wage increase comparable to that granted on January 1, 1946. Moreover, the record fails to support the re- spondent's contention that the Union's representatives assumed an unequivocal position at the last meeting which foreclosed further bargaining concerning wages or other terms or conditions of employ- ment. Under these circumstances, we find, as did the Trial Examiner, that the respondent, by its action with respect to the wage increase, failed to perform its statutory duty to bargain collectively with the Union and thereby interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed in the Act. With respect to the respondent's refusal to comply with the Union's request for certain information concerning its Point Plan, we, unlike the Trial Examiner, are not persuaded that, on the facts of this case, the respondent thereby manifested bad faith. In view of the respond- ent's invitation to the Union to conduct its own engineering studies at the plant, and under all the circumstances of this particular case, including the evidence of substantial counter-proposals on many other issues, we find that this part of the respondent's conduct was not violative of Section 8 (5) of the Act. The effect of such conduct in a different context is not before us for decision here.' 1The Aluminum ore case (Aluminum Ore Company v. N. L. R. B, 131 F. ( 2d) 485, 487 (C C. A. 7)) and the Sherwin-Williams case (34 N. L. R B. 051 , enf'd 130 F. ( 2d) 255 (C. C. A 3)), which are cited by our dissenting colleague for a contrary conclusion, are not really in point since in those cases , unlike this one, the Company refused any in- formation with respect to its wage schedule . In this case both parties were familiar with .the schedule of rates and current payments under the point system , and the Company was willing to make substantial concessions in the wages to agree with the Union . That the Company had a legal duty to yield to its demand would seem to imply that the requirement to bargain collectively means to agree-a theory emphatically rejected by the Supreme Court in Jones & Laughlin (N. L. R. B. v. Jones & Laughlin Steel Corporation, 301 U. S. 1,45). 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. We also disagree with the Trial Examiner that the record herein warrants a finding that the derogatory remark of one of the respond- ent's supervisory employees concerning the election conducted by the Board at the plant, and the Personnel Director's statement to the chair- man of the local bargaining committee, criticizing a union official's attitude allegedly exhibited during the contract negotiations, amounted to such interference , restraint, and coercion as are contemplated by Section 8 (1) of -the Act. Accordingly, we shall dismiss the complaint in this respect. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Crompton -Highland Mills, Inc., Griffin, Georgia, and its officers , agents, successors and assigns shall : 1. Cease and desist from : (a) Refusing to bargain collectively with Textile Workers Union of America , CIO, as the exclusive representative of the respondent's production and maintenance employees at the Griffin plant, including watchmen, but excluding office, clerical, technical, and laboratory em- ployees, section men in the spinning room, head loom fixers in the weave room , head fixers in the card room, all supervisory employees of the grade of second hand and above, and all other supervisory employees with authority to hire, promote , discharge, discipline, or otherwise effect changes in the status of employees, or effectively rec- ommend such action, by taking action , without prior consultation with said organization, with respect to rates of pay, wages, hours of em- ployment, and other conditions of employment. - (b) In any manner interfering with the efforts of Textile Workers Union of America , CIO, to bargain collectively with it as the repre- sentative of its employees in the appropriate unit described above. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain collectively with Textile Workers Union of America , CIO, as the exclusive representative of all its employees in the appropriate unit described above with respect to rates of pay, wages, hours of employment, and other conditions of employment; (b) Post at its plant at Griffin , Georgia, copies of the notice attached hereto, marked "Appendix A." Copies of such notice, to be furnished by the Regional Director for the Tenth Region, shall , after being duly signed by the respondent 's representative , be posted by the respondent immediately upon receipt thereof , and maintained by it for sixty (60) consecutive days thereafter , in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps CROMPTON -HIGHLAND MILLS, INC. 209 shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material; (c) Notify the Regional Director for the Tenth Region ( Atlanta, Georgia), in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. MR. JOHN M. HousTON, dissenting impart: During the course of negotiations, the Union requested the respond- ent to produce certain data pertaining to a complex wage incentive plan which was being used by the respondent to establish wage rates for employees in the unit for which the Union had been certified as exclusive bargaining representative. The essentials of the plan consisted of a time study program under which money values -were allocated by use of a point system to component parts of a given operation in order to ascertain the worth of the job in wages. The effect of the plan, it was admitted by the respondent, was the source of dissatisfaction among a number of employees , and the Union's request for the data was based , in part, upon a desire to determine whether this dissatisfaction was justified . In addition to the desire of the Union to service its constituents in this connection , the record is clear that the Union 's interest in the plan derived from its con- cern that continued operation of the plan would mean unilateral determination of basic wage schedules by the respondent-a matter which vitally challenged the legitimate exercise by the Union of its rights as exclusive representative of these employees. Conceding that wages, and the methods employed to arrive at wage rates , are proper subjects of collective bargaining, the respondent nevertheless refused to produce the data. Initially it claimed that the production of its records, etc., would "mess up [the] bargaining," and "simply would muddle the issues." It also argues , at one point, that production of the data involved the handling of such a voluminous mass of detail that it would be almost physically impossible to comply with the Union's request., However, the plan must have grown in bulk rather abruptly after the certification of the Union since the respondent had no difficulty in transporting so much of it to the War Labor Board as would support its wage contentions in that forum 4 months earlier. It is noted that the Union requested substantially what had been providedwith ease by the respondent at that time. But the respondent has now advanced , as its most serious conten- tion in defense of its refusal , that it offered the Union an opportunity to obtain the information by engineering studies to be conducted by the Union at the plant. Its contention in this respect would appear to have theN practical result of permitting the respondent to effect basic wage changes by the continued use of its own plan with the concession that such wage determinatitons might, at some future 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD date, be modified, after prolonged discussion with the Union, pro- vided accommodation of the Union's point of view with the re- spondent's fait accompli could be reached. I consider that such a course of conduct seriously reflects upon the respondent's good faith, and that the respondent's position is "inconsistent with the principle of collective bargaining" as stated in the Aluminum Ore Company case,2 where in an analogous situation the court held that ... [Collective bargaining] contemplates exchange of infor- mation, ideas and theories, in open discussion ... we do not believe•that it was the intent of Congress in this legislation that, in the collective bargaining prescribed, the union, as representa- tive of the employees, should be deprived of the pertinent facts -constituting the wage history of its members . . . including full information as to the work done by the respective employees and as to their respective wages in the past ... [Italics supplied.] Nor does the respondent's invitation to the Union to make its own time study excuse the respondent's fault. As I have indicated above, the consequence of the suggestion obviously involves such delays as to forestall the possibility of early agreement and thus to perpetuate and augment the dissatisfaction engendered in the employees by continued ignorance on their part of the factors upon which their wages are dependent. Indeed, this Board in the Sherwin-Williaons Company case,3 refused to permit an employer to escape the duty to bargain by extending an invitation to the Union to obtain its own information. The above considerations constrain me to disagree with my colleagues insofar as this aspect of the case is concerned. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that, WE WILL BARGAIN collectively with Textile Workers Union of America, CIO, as the exclusive representative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours of employment, and other conditions of employment. WE WILL NOT make any changes with, respect to rates of pay, wages, hours of employment, or other conditions of employment of our employees in the bargaining unit described below, with- out prior consultation with Textile Workers Union of America, CIO. =Aluminum Ore Company v. N L. R B, 131 F. (2d) 485, 487 (C. C A. 7). 334 N. L. R. B. 651, enf'd 130 F. (2d) 255 (C. C. A. 3). CROMPTON-HIGHLAND MILLS, INC. 211 NE WILL NOT in any manner interfere with the efforts of Textile Workers Union of America, CIO, as the exclusive representative of our employees in the unit described below, to bargain collec- tively with us. The bargaining unit is: All production and maintenance em- ployees at our Griffin plant, including watchmen, but excluding office, clerical, technical and laboratory employees, section men in the spinning room, head loom fixers in the weave room, head fixers in the card room, all supervisory employees of the grade of second hand and above, and all other supervisory employees with au- thority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action. CROMPTON-HIGHLAND MILLS, INC., By ---------- ---- (Representative ) (Title ) Dated ------------------------------------ This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT Mr. Thomas T. Purdom, for the Board. Mr. Ralph Williams, of Atlanta, Ga., for the respondent. Mr. Kenneth Douty, of Atlanta, Ga., and Mrs. Claea Kanan, of Griffin, Ga., for the Union. STATEMENT OF THE CASE Upon a second amended charge duly filed by Textile Workers Union of America, CIO, herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Tenth Region (Atlanta, Georgia), issued its complaint dated January 31, 1946, against Crompton- Highland Mills, Inc., herein called the respondent, alleging that the respond- ent had engaged in and was engaging in unfair labor practices affecting com- merce within the meaning of Section 3 (1) and (5) and Section 2 (6) and (7) ,of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint accompanied by notice of hearing were duly served upon the respondent and the Union. With respect to the unfair labor practices, the complaint alleged, in sub- stance, that the respondent (1) since on or about August 31, 1945, has failed and refused to bargain collectively with the Union notwithstanding that the Union has at all times since August Y3, 1945, been the representative of a ma- jority of the employees in an appropriate unit; (2) since on or about August 2, 1945, has vilified, disparaged, and expressed disapproval of the Union ; and (3) by the foregoing acts has interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. The respondent, in its answer filed February 13, 1946, admitted the allega- tions concerning the nature and extent of the operations of its business, and the certification of the Union as the exclusive representative of its employees in the appropriate unit. It alleged, however, that the Union thereafter for- 712344-47-vol. 70-15 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD feited the right to represent the employees as collective bargaining agent by reason of its failure . to perform and exercise properly the functions of such agent. The respondent further denied the commission of any unfair labor practices - Pursuant to notice a hearing was held at Griffin, Georgia , on February 20 and 21, 1946, before Irving Rogosin , the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the respondent were represented by coun- sel, and the Union by its representatives . All participated in the hearing and were afforded full opportunity to be heard , to examine and cross-examine wit- nesses, and to introduce evidence bearing on the issues . At the commencement of the hearing counsel for the Board moved for a "finding and.conclusion of a refusalJo bargain" based upon the pleadings . Ruling on the motion was re- served . In view of the disposition of the case hereinafter made, it is unnecessary to pass upon it. At the conclusion of the hearing motions of counsel for the Board and for the respondent to conform the pleadings to the proof with respect to formal matters not affecting the substantive issues were granted without objection All parties were afforded an opportunity to argue orally upon the record and to file briefs with the undersigned . No briefs have been received Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Crompton-Highland Mills, Inc., a Georgia corporation having its principal office and place of business in Griffin, Georgia, is engaged in the manufacture, sale and distribution of cotton cloth, including corduroy, velvet, velveteen, jungle cloth and related products. During the year 1945, it purchased raw materials consisting of cotton and other items valued in excess of $200,000, of which more than 50 percent was shipped to its plant in interstate commerce from states out- side the State of Georgia. During the same period, the respondent manufactured cotton cloth valued in excess of $250,000, more than 90 percent of which was shipped from its plant in interstate commerce to states outside the State of Georgia. II. THE ORGANIZATION INVOLVED Textile Workers Union of America, affiliated with the Congress of Industrial Organizations, is a labor organization admitting to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. The refusal to bargain 1. The appropriate unit and representation by the Union of a majority therein The Board, on August 13, 1945, following its Decision and Direction of Election; and an election conducted on August 1, 1945, certified the Union as the exclusive collective bargaining representative of the employees in the unit found to be appropriate The respondent, in its answer, admits the allegations of the com- plaint concerning the appropriateness of the unit previously found by the Board. The undersigned finds, therefore, upon the basis of the foregoing, that all pro- duction and maintenance employees, including watchmen, employed at the re- i Mattei of Crompton(-Hip71lan(1 11 ills , 62 N L R. R 1.14(1 CROMPTON-HIGHLAND MILLS, INC. 213 spondent's plant, but excluding office, clerical, technical, and laboratory employees, section men in the spinning room, head loom fixers in the weave room, head fixers in the card room, all supervisory employees of the grade of second hand and above, 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, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. The respondent's answer further admits that the Union was duly and properly certified by the Board on August 13, 1945; as the exclusive collective bargaining representative of the employees in the appropriate unit. The undersigned finds, upon the basis of the foregoing, Ind the entire record, that the Union was, on August 13, 1945, and has been at all tunes material thereafter to and including December 19, 1945,2 the duly designated representative of a majority of the em- ployees in the said appropriate unit, and that by virtue of Section 9 (a), of the Act, was, and has been from August 13, 1945, to and including December 19, 1945, the exclusive representative of all the employees in the said unit for the purposes of collective bargaining with respect to rates of pay, wages, hours, and other conditions of employment. 2. The refusal to bargain The complaint alleges that (a) on or about August 31, 1945, the Union requested' the respondent to bargain collectively with it as the exclusive representative of the employees in the appropriate unit, and that from that date until on or about December 19, 1945, and thereafter, no agreement has been reached concerning rates of pay and wages of employees in the appropriate unit by reason of the respondent's refusal to bargain in good faith; and (b) on or about January 1, 1946, the respondent, by unilaterally granting wage increases to the said em-, ployees, refused to bargain collectively with the Union as the exclusive repre- sentative of the employees in the said unit The first ground for the alleged re- fusal to bargain is based upon the assertion that the Union, at various times dur- ing its collective bargaining negotiations with the respondent, requested certain relevant' and essential information with respect to the respondent's wage rate structure, and that the respondent failed or refused to furnish adequate informa- tion which would afford the Union a basis for bargaining with respect to rates of pay and wages. The second ground, namely, the granting of unilateral wage in- creases, is discussed iii further detail hereinafter. (a) The incentive wage plan; collective bargaining negotiations with regard thereto In June 1942, prior to the advent of the Union, the respondent introduced an incentive wage plan in its plant. This plan, installed by it firm of industrial engineers, was colloquially known, and is generally referred to in the record, as the "Point Plan " 3 At its inception, not all production jobs were immediately brought under the plan. It was contemplated, however, that the plan should' gradually be applied to other production jobs upon the completion of engineering ,studies relating to those jobs 4 Jobs, therefore, fall into two broad classifications, d The respondent 's contention , that the Union , by its conduct subsequent to August 13; 1945 , "foifelted " its right to represent the employees in the appropriate unit as exclusive representative , is discussed hereinafter 8 No comprehensive analysis , or attempt at appraisal of this system , Ni ill be undertaken. Only the salient features of the plan relating to the alleged refusal to bargain will be discussed 4 Approximately one-third of the employees were under the point plan at the time of the hearing, and, although the respondent is gradually expanding the coverage of em- plo3ees under the plan, some jobs, principally maintenance, will never be brought under-- the plan 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Incentive, and hourly rated jobs. The point plan applies only to the incentive rated jobs with which we are here concerned. In order to consider what transpired during the collective bargaining con- ferences, and to comprehend the contentions of the parties , it may be well to examine briefly the basic elements involved in the point plan, as disclosed by the Pecord. Under the plan, a point represents a unit of production, and is defined by the respondent as "the amount of work produced in one minute by an average normal worker [on a particular job] operating under non-incentive or day-work conditions, plus allowances covering personal time, fatigue , and such minor delays and interruptions as are inherent in the job in question." The industrial engineer- ing firm employed by the respondent , after conducting time and motion studies of the jobs involved, determines the value of a point in terms of work requirements for each incentive rated job, and compiles a table of "point standards" reflecting this detailed data.' A wage rate is then established for thq point for each incentive rated job. The daily production of each employee is measured against these point standards , and then converted into points To determine the employee's daily earnings in , terms of money, the total number of points earned by the employee in a day is then multiplied by the rate per point. Thus, by way of illustration, the rate for a picker tender was fixed at $ 007 per point. An employee producing the equivalent of 60 points per hour, would earn $ 007 X 60, or $.42; 75 points per hour, $007X75, or $525; 80 points per hour, $007X80, or $.56. The rate per point, or unit of production, for each job remains constant, regardless of the speed at which an employee works. Each employee under the plan is, how- ever, guaranteed a minimum hourly rate on a daily basis in the event his earnings fall below the guaranteed minimum. In effect, the point plan is a variation of the conventional piece-work system. Under the piece-work system, the unit of production is usually the article, or "piece" produced ; here, the unit of production is the "point." ° The first collective bargaining conference was held on August 31, 1945, when a draft of a proposed contract previously submitted by the Union was discussed, It provided for a minimum hourly wage rate of 65 cents, negotiation of a "properly balanced and aligned wage rate structure" based upon "the key occupational 5Illustrative of such a "point standard ," is the following table submitted by the re- spondent to the war Labor Board in April, 1945 , at the time it applied for permission to extend the point plan to the weavers . The production standards used in wage payment are calculated from "basic element standards" combined according to the requirements of the particular job. These elements do not change as long as "the fundamental nature" of the job does not change. As illustrated with respect to the weavers, in the information furnished in connection with the Form #10, the following elements are involved in this job: - (a) Fix a broken filling thread : 0 412 point per occurrence ( b) Fix a broken warp thread at the front of the loom : 0 770 point per occurrence. (c) Fix a broken warp thread at the back of the loom : 1 054 point per occurrence. (d) Fix a "slam-off" (also called a bang-off, or mechanical stop : 0 236 point per occurrence. (e) Remove finished roll of cloth from loom : 3 378 point per occurrence. (f) Walk past the front of a loom, for any purpose : 0 08596 point per occurrence. (g) Walk past the back of a loom , for any purpose : 0 17193 point per occurrence. (h) Miscellaneous small jobs incidental to running a loom : 0 2848 point per 10,000 picks , any loom, any style * "Elsewhere , the supplemental information recites : The unit of production in a weave Room is the "pick", defined as the function- ing of a loom in'placing one filling thread. For convenience , the unit used here is 10,000 picks. ° It should be noted that the foregoing explanation is based upon the facts disclosed at the hearing, and an examination of the exhibits. As will appear hereinafter , much of this information was not made available by the respondent to the Union during the bargaining conferences. CROMPTON-HIG H LAND MILLS, INC. 215 wage rates established as guide posts" in the Directive Order of the National War Labor Board of February 20, 1945,' and, upon the completion of negotiations and approval of the rate structure, a general increase of 10 cents per hour to all em- ployees. The proposal included provision for a union shop and check-off of dues and initiation fees. At this conference, the respondent submitted its first written counter-proposal On the subject of wage rates and work standards, the re- spondent re-asserted the principle of the point plan of incentive wage payment and the right to correct and adjust point standards and work assignments under the plan, and expressly provided that any point standard or work assignment theretofore or thereafter established by the respondent might, upon request, be studied and checked by competent engineers designated and employed by the employees through the Union as their collective bargaining representative. Fur- ther provision was made for the posting on the bulletin board in each department of schedules of hourly and incentive rates of pay, and "details of the incentive pay plaits" applicable to employees in each department, as well as records of daily earnings upon the completion of the necessary computations. The re- spondent's counter-proposal also provided that the application and operation of the plan would be fully explained and discussed with employees and the Union upon request, and that full information respecting average hourly earnings of any employee or group of employees would be furnished upon request. It was specifically provided, however, that pending application of the procedures, the employees should accept and abide by the point standards theretofore and there- after established by the respondent. The proposed contract further contem- plated that engineers designated by the respondent and by the "Employees" should mutually endeavor to reach agreement with respect to any questioned point standard or work assignment and that, failing such agreement, applica- tion should be made to the Director of the Conciliation Service of the Depart- ment of Labor to assign a qualified expert to study the job and attempt to reconcile the differences between the engineers of each of the parties In the event of in- ability to resolve any disagreement the parties were, in effect, left to their own devices. It was expressly provided that arbitration provisions relating to other subjects under the contract should in no event be applicable to disputes arising out of point standards or work assignments Subsequent collective bargaining conferences were held between September 12 and December 19, 1945. Although tentative agreement was reached between the parties at conferences between September 12 and October 17 on miscellaneous .provisions, including overtime and premium pay, holidays, seniority, and griev- ances, the parties were in basic disagreement on the subject of wage rates and work assignments On October 18, the respondent submitted an amendment to its counter-proposal, accompanied by a rate schedule covering both incentive and hourly rated jobs in its various departments This schedule, in addition to listing rates for hourly rated jobs, set out, with respect to each of the incentive rated jobs, the rate per 100 points,' the anticipated earnings of employees producing 75 or 80 points per hour, and the guaranteed minimum rate per hour. During the various conferences, the union representatives were unable to formulate specific wage demands because of the complexity of the basic wage structure under the respondent's point plan. Although the earnings of em- I Although the proposed contract refers,, to "Directive Order of the National Labor Rela- tions Board in the matter of the 23 Southern Cotton Textile Companies and the Textile Workers Union of America, CIO," it is obvious that reference was intended to the National War Labor Board directive. 8 To simplify computation of earnings the rate was given per 100 points instead of per point 216 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD ployees, in terms of points, were posted daily on the plant bulletin boards, and the rate schedule furnished the union representatives indicated that the daily earnings of employees under the plan were dependent upon the number of points earned as reflected by individual production, this data furnished no explanation of what constituted a point In other words, it afforded no basis for determining the amount of work required of an employee in order to earn a point; or the unit of time against which a point was measured. The difficulty in bargaining regarding a wage rate under these circumstances is apparent. - Further confusion resulted from the fact that, while the rate schedule pre- pared by the respondent at the Union's request purported to demonstrate that earnings in terms of points were based upon point production, the schedule did not accurately reflect the relationship between earnings and point produc- tion because, to the anticipated earnings at various production levels on a point basis, had been added 10 cents, as an "across-the-board" increase authorized by the War Labor Board several months earlier Since the 10 cents was added to the earnings of employees who produced at a rate of 75 points per hour as well as those producing at a rate of 80 points per hour, it was impossible to determine, by any examination of this rate schedule, what relationship the amount paid per point bore to the amount of money then being paid to the ,employees ° Consequently, in order to ascertain the true basis on which the employees were being paid, and whether their earnings were commensurate with their rate of production and the nature of their work aasignnients, the Union re- quested certain specific information of the respondent. It requested informa- tion regarding (1) the definition of a point, how it was determined, what ele- ments were considered in arriving at its value; (2) the "point standards," or detailed tables prepared by the respondent's time study engineers, which set forth exactly the elements of work assigned to the various points established for the different jobs covered by the point plan; (3) the amount of work, or number of points, normally expected of an employee in an hour," before his greater efficiency or speed would enable him to earn a bonus of additional points, or, what the respondent termed, "incentive pay" ; and, (4) the basis upon which the daily minimum, wages in the plan were established. As will appear here- after, none of this information was furnished to the Union throughout the negotiations. Apart from the information sought in connection with the operation of the point plan, an inherently complicated system, the Union, in an attempt to appraise the existing earnings of the employees with relation to their work, also requested (1),the average earnings for all the employees under the plan, (2) their produc- tion records in terms of points, and (3) job specifications for all incentive rated jobs. The respondent does not contend that the wage rates, established under the point plan, and the corresponding work assignments are not appropriate or essential subjects for collective bargaining; it recognizes, the right of the Union to bargain respecting these wage rates as it does in connection with hourly rates. ° It was not until the December 10 conference that it was clearly indicated by the respondent that this raise, which the pasties referred to at the bearing as a "floating dime," had been superimposed upon the incentive rate schedule 1° The Union referred to this in its negotiations as "the base rate " Although it is apparent , from the contents of the application submitted by the respondent to the War Labor Board , that the respondent made reference to "the fob base rate" for 60 points of work per hour, the point plan did not contemplate a base rate in the strict sense CROMPTON-HIGHLAND MILLS, INC. 217 Nor does the Union contest the right of the respondent to establish a wage rate structure based upon an incentive plan. It argues, however, that, having adopted a complex wage rate system, the respondent was under a duty to disclose to the Union all pertinent and essential information in its possession necessary to afford a basis for intelligent bargaining with respect to the wage rate. In accordance with the Union's request, the respondent supplied a schedule listing the three highest and the three lowest average earnings on incentive rated jobs. When the union representatives, upon the basis of reports from employees, contended that these figures did not indicate true averages, the respondent asserted that the production of average employees was equivalent to approxi- mately 80 points per hour. The Union stated that this was contrary to informa- tion received from the respondent's employees. Although this issue could have been resolved by an examination of the respondent's pay-roll records, and it is clear that the Union sought information which would enable it to verify the respondent's claim, the respondent did not produce these records. The re'- spondent's counsel admitted that the Union's request for production records was refused, because, as he testified, it would "stir up a mess." He further admitted that the respondent also refused to produce its job specifications' because "it would mess up our bargaining, simply muddle the issues, and that was a matter to be left to the work of the engineers after the contract was completed." With respect to the Union's request for information concerning the operation of the point plan, the respondent admitted that at no time during the negotiations did it inform the Union what constituted a point, or that, in effect, a point repre- sented the amount of work normally produced by an employee in 1 minute. Similarly, it was admitted that the Union was not told the amount of work, or number of points, normally expected of an employee in 1 hour.1' The third item of Information requested by the Union, related to the point standards, a table of work assignments established for each incentive rated job. As to this, the respondent admitted, for reasons discussed hereinafter, that it refused to disclose the results of its time studies to the Union. Finally, as Kanun credibly testified, with respect to the request for information as to the basis for minimum wages established on incentive rated jobs, the Union was informed by counsel for the respondent that it was determined by "historical usage." Although counsel denied having made such a statement, Plant Manager Pickford, who was also present at all conferences, corroborated Kanun's testimony in this respect. That the information sought by the Union from the respondent during the collective bargaining negotiations was of practical rather than academic im- portance, is illustrated by Kanun's testimony : Take for example a single job like a weaver's job, . . . within that job are certain elements occurring in the job. For instance the weaver patrols the front of his loom and he patrols the back of the loom, and he starts and he stops it, or if it has a broken thread, he fixes it. And each one of those job elements are studied and evaluated according to the amount of 11 The respondent 's counsel , who acted as its spokesman during all the negotiations, used the terms "job descriptions" and "job specifications " interchangeably, and without dis- tinction Although Plant Manager Herbert A' Pickford, who also participated in the negotiations, indicated that lie made no distinction between the terms, it is clear from the record that the Union's request related to information regarding the elements involved in the jobs themselves , rather than descriptive classifications , and that the respondent so construed it 12 Contradicting Union Representative Kanun , Williams testified that these first two points of information were not given to the respondent because they were never requested In view of the respondent 's position , set forth in detail hereinafter, that this information was not needed by the Union and that in any event it was of too technical a nature for the representatives to use intelligently , the undersigned credits Kanun in this respect. 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD time it takes to (1o each element, and then a proportionate number of points allowed for each one of those elements, depending on how many go into the job and how long each takes. Again, a point is a means of measuring a unit of work, and that in order to relate or to compute a worker's earnings , after the unit of work has been measured and a specific amount of work set up, then some money value is set for that unit of work. What we were trying to approach in these wage negotiations was some understanding of the relationship of the unit of work to the amount of money that was currently being attributed to that amount of work, so that in our negotiations we could request and propose to the Company a wage scale which we considered fair. We were aware that something was wrong because our members insisted that they were not being adequately paid for the amount of work they did compared to the wages they had been earning before We did not go into the Company and state that there was something wrong with the point system. We specifically stated that we were requesting this information so that we could evaluate what actually was happening in the mill, then articulate our position. Although the respondent recognized the validity of the Union' s claim that it was entitled to bargain for the rate of pay which, under the respondent' s plan, constituted a rate of pay per unit or point of production, it contended that what constituted a unit of production for the purpose of the plan was an industrial engineering problem. Hence, it offered the Union the privilege of having the Union's industrial engineers undertake their own time and motion studies to determine the fairness of the point standards established by the respondent's engineers. In the event of disagreement between the engineers of the respective parties, under the respondent's original counter-proposal, the services of an impartial expert were to be enlisted through the Conciliation Service, in an effort to resolve any differences Later, under an amendment to the counter- proposal, formally submitted on November 7, 1945, failing settlement by the technician selected by the Department of Conciliation, the matter was to be submitted to arbitration The respondent contends, in effect, that the only method by which the Union could determine whether the point standards established by the respondent were accurate, or commensurate with the work involved, was by conducting its own time studies . Having furnished the Union with all the information which the respondent deemed essential and relevant, and having afforded it an oppor- tunity to make its own studies, the respondent contends that it has abundantly fulfilled any obligation to bargain imposed under the Act. Asa corollary, it contends that any records, job specifications, production records or details of the incentive plan which might have been furnished the Union, would have afforded nothing more than an opportunity to verify the mathematical computa- tions of its engineers, but could not possibly have assisted the Union in determin- ing whether the point standards or work assignments were "correct." 'This, apart,from the contention made by the respondent that the records concerning the respondent's incentive wage plan were so voluminous as to make it impossible to furnish information in the detail required by the Union. With respect to the latter contention, it is sufficient to point out that in April 1945, about 4 months prior to certification of the Union, and the commencement of negotiations between the Union and the respondent, the latter had filed CROMPTON-HIGHLAND MILLS, INC. 219 with the Regional Office of the War Labor Board a Form No 10 application, accompanied by supplementary information, for permission to extend the wage incentive plan to three groups of workers in the weave room. The supplementary information accompanying the application, describing in detail the principles involved in the plan, definition of the point, job specifications, etc., as well as the answer to Question 9 on the application," furnished substantially the type of information which the Union subsequently sought with respect to all the incentive rated jobs" The only explanation offered by the respondent for failing to furnish the information contained in these documents, admittedly in its possession at the time of the Union's request for information of this character, was that it had not occurred to the respondent to do so at the time. Without exploring the ramifications of the respondent's "point plan," it is apparent that it involved a complicated method of establishing a wage rate structure. The duty of an employer, in bargaining concerning wage rates, to disclose to the exclusive bargaining representative of the employees all pertinent information, including job classifications, specifications, past wage rates, must lie recognized if the hazards of industrial strife are to be replaced by collective bargaining. Indeed, experience in industrial relations has demonstrated that industries in which collective bargaining has been well established and in which the greatest measure of stability has prevailed, have been those in which access to the books, production, pay roll records and the like have been granted the collective bargaining representative.'5 As was said by the Circuit Court of Appeals for the Seventh Circuit in the Aluminum Ore case: 16 . . . we do not believe that it was the intent of Congress in this legislation that, in the collective bargaining prescribed, the union, as representative of the employees, should be deprived of the pertinent facts constituting the wage history of its members. We can conceive of no justification for a claim that such information is confidential. , Rather it seems to go to the very root of the facts upon which the merits were to be resolved. In determining what employees should receive increases and in what amounts, it could have been only helpful to have before the bargainers the wage history of the various employees , including full information as to the work done by the respective employees and as to their respective wages in the past, their respective increases from time to time and all other facts bearing upon what constituted fair wages and Lair increases. Especially is the necessity for such disclosure apparent where, as here, the wage rate structure is based upon a highly technical system devised by in- " The answer to Question 9 : .Weave Room weavers and loom fixers . All production is measured in points, a point being the amount of work produced in one minute by an average normal worker operating under non-incentive or day-work conditions, plus allowance covering personal time, fatigue , and inherent incidental delays For 60 points of work or less per hour the operator is paid the job base.rate Above 60 points of production per hour a proportionate premium is paid-i. e., 66 points of work per day pays 10 percent above job base rates, etc. Each style of cloth has its own point standard per unit of production, but the above desci iption best answers this question. The supplementary information also indicated job specifications for the jobs involved, past earnings , average earnings , and the like. ' I "The record discloses that the Union was unaware , during its negotiations, that the respondent had filed this Form #10 application, and that it did not discover this and learn of its contents until the time of the hearing 16 See Pierson , Collective Bargaining Systems ( 1942) 32. 16 Aluminum Ore Company v. N. L. R. B., 131 F. ( 2d) 485, 487 (C. C. A. 7 ), enf'g. 39 N. L. R. B. 1286. 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dustrial engineers, and requiring specialized studies. Nor is this obligation, in the opinion of the undersigned, satisfied by a proposal by the employer that the Union engage its own engineers or technicians to conduct its own investigation in order to,determine the accuracy of the findings of the respondent's engineers. Apart from the expense which this course would entail, such a study, which the respondent's experience has already demonstrated has necessitated the gradual application of the plan to various departments, would unnecessarily delay the process of collective bargaining Moreover, since "each style of cloth has its own point standard per unit of production," " and since styles of cloth vary accord- ing to the respondent's production requirements, such a course would require fre- quent engineering studies with resultant delay and confusion. The respondent's contention that it had proposed two alternatives to the Union is equally unreasonable. The first of these proposals was that the Union execute a contract adopting the existing wage rate structure which could be reopened upon the completion of the Union's engineering studies. The second was that negotiations for a contract be suspended until the Union should have an oppor- tunity to complete its time studies, when negotiations could be resumed while these proposals have a superficial appearance of reasonableness, closer examina- tion reveals that both seek to continue the status quo as to wage rates, and to postpone and delay genuine collective bargaining. As has already been indicated, and as the undersigned now finds, the respondent was, during the bargaining' negotiations, in possession of pertinent information regarding the "point plan," including the method of determining the point, point standards, job specifications, and other information requested by the Union, es- sential to bona fide collective bargaining, and by failing and refusing to provide the same to the Union, upon request, the respondent has failed and refused to bargain collectively. (b) Subsequent events;, the unilateral wage increase Following the conference of October 18, the union local met and voted to peti- tion the Secretary of Labor for a strike vote under the Smith-Connally Act. On October 22, the Union notified the Secretary of Labor and other appropriate agencies, including the Board, of the existence of a dispute with the respondent, indicating the issues involved. A strike vote was subsequently taken on Novem- ber 27, which resulted in 309 ballots in favor of, and 120 opposed to, a strike On November 7, a conciliator of the Department of Labor called a conference of the parties at'Atlanta in an effort to prevent the strike. Various matters in dispute were discussed. An attempt was made to effect agreement upon the question of check-off, and several counter-proposals were made, none of which were acceptable to the parties. The parties met again the following day at Griffin, but without further success No further conference was held until December 19, when a meeting was held at the request of the Union. The issues upon which the parties were still in disagreement at this time involved wages, work assignments, insurance provisions, severance pay, vaca- tions, union security, arbitration, union activity upon company time, and the preamble of the contract, in which the respondent sought to define the parties to the agreement as the respondent and the "employees" in the appropriate unit, as opposed to the Union's position that the'Union be denominated as party to the contract. On the issue of union security, although the Union had offered to compromise for maintenance of membership, the respondent refused to grant any form of security. As to wages, although 'it had originally. rejected the 11 See footnote 13 CROMPTON-HIGHLAND MILLS, INC. 221 Union's proposals for any wage increase, it proposed what amounted to an increase of about one or one and one-half cents per hour at this time. On January 1, 1946, the members of the union negotiation committee, employed at the plant, were summoned to the office of Plant Manager Pickford and informed that the respondent was granting a general wage increase to all employees,1$ amounting to about 2 to 6 cents per hour. Pickford read to the committee the following letter under that date, addressed to Union Director Douty: In the,course of our extended contract negotiations we have repeatedly told you that our mill would be among the first to make wage adjustments - in this locality. We have learned that certain of the mills in this locality are about to adjust their wages and we are, therefore, making comparable adjustments in our wage rates effective Monday, December 31st, 1945. A copy of the notice which has, been posted in the mill today outlining the various rate adjustments is attached hereto Attached to the letter were notices directed to the respective departments listing the various wage increases. The letter was received by Douty the next day. While the negotiating committee was in Pickford's office, copies of the notices announcing the wage increases were being posted on the bulletin boards in the respective departments. It will be seen from the foregoing that neither the Union nor the negotiating committee was consulted from December 19, the date of the last conference, to January 1, 1946, the date of the granting of the wage increase. Nor was thel committee consulted on the latter date. The respondent merely presented it with a fait accompli, without affording the Union an opportunity to negotiate with respect to the amount of the increase, the employees to whom the increase would be applicable," the effective date of the increase or any of the factors normally envisaged in the collective bargaining process.. It cannot be disputed, nor does the respondent deny, that the granting of the wage increase at that time, constituted unilateral action. The respondent con- tends, however, that it was justified in adopting this unilateral action on several grounds In the first place, it contends that it was obliged to grant the increase for what may be considered competitive reasons. The respondent had stated throughout its negotiations that it had always maintained a policy of paying at least as high, or a higher wage than similar mills in the area ; that if and when wages could be increased it would be among the first to do so. Consequently, when it was rumored that certain mills in the area intended to ,increase wages it determined to maintain its competitive position in the labor market. This, of course, cannot afford justification for a refusal to bargain or the commission of any other unfair labor practice. Secondly, the respondent contends that, not only had the parties reached an impasse at its last conference on December 19, but also that the Union had deliberately broken off negotiations In this connection, the respondent main- tains that the Union, having insisted on some type of union security throughout its negotiations, had assumed that the respondent would eventually make some concession on this subject. Wlien, however, it became apparent at the confer- ence of October 17 that the respondent would not yield, even to the extent of granting the Union maintenance of membership, the Union, according to the respondent, thereafter, and especially on December 19, categorically and emn- phatically stated that it would not enter into contractual relations with the 18 As will be seen, certain employees were not included in the wage increase. "The increase did not affect janitors , sweepers , scrubbers , outside help, and various other categories of employees included in the unit represented by the Union. 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respondent unless it was prepared to grant some form of union security. The respondent concluded from this that further negotiations would be futile. While it is evident that the Union was insistent in its demand for some form of union security during its negotiations with the respondent, the preponderance of the credible evidence does not support the respondent's position that the Union had, in effect, presented an ultimatum that na contract would be con- summated which did not afford union security. As has already been indicated, union security was only one of several matters, aside from the wage question, upon which agreement had not yet been reached. If, as the respondent contends, it had left no doubt as to its position on the issue of union security in the con- ferences of October 17 and 18, and it was convinced that the Union was adamant on this issue, it seems unlikely that the parties would have conferred on No- vember 7 and 8, and again on December 19, when the Union submitted a written wage proposal. It is clear, therefore, and the undersigned finds, that, although the parties had reached a temporary impasse on December 19 on some issues, principally wages, union security, and check-off, there is no substantial basis for conclud- ing that the Union had 'abandoned negotiations at this time. ' Moreover, even if the parties had reached an impasse in their negotiations, this obviously could not affect the Union's status as majority representative. The principle that "a bargaining relationship once rightly established must be permitted to exist and function for a reasonable period in which it can be given a fair chance to succeed,", is well-established 20 Equally clear is the pioposition that the granting of a unilateral wage increase Qr other concession by an employer to his em- ployees while the designated union is attempting to bargain concerning the same subject matter, constitutes a violation of the employer's duty to bargain with the union 21 It is not a question, contrary to the respondent's argument, of giving the Union credit for a wage increase which it did not obtain, but rather of the conduct of the respondent in granting the increase in derogation of the Union's status as statutory representative, by depriving the Union of its right to bargain with respect to such increase. The respondent further contends that, since the Union had terminated the bargaining negotiations,22 and had elected to enforce its demands by a strike vote, the respondent was absolved of any obligation to bargain further. This is patently unsound,- for the obligation of an employer to bargain with the designated representative of the employees i's not suspended by the occurrence of a strike,' much less by the taking of a strike vote. Finally, the respondent contends, as asserted in its answer, that the Union, by failing and refusing "to properly and in good faith exercise the'rights,.and per- form the functions of the sole and exclusive collective bargaining agent and representative of the employees in the bargaining unit" but, on the contrary, endeavoring to "use said rights, powers and authorities for its own selfish in- terests and advantages and against the interests of its principals, . . . had . . . 20 See Franks Bros. Co v N L. R B, 321 U S. 702, 705 21 See Aluminum Ore Company v N. L. R. B., 131 F ( 2d) 485, 487 , (C C. A. 7) ; enf'g. 39 N L R B 1286 , 1295-1299 , May Department Stores v. N. L. R B , 326 U S. 376. See also, Majority Rule in Collective Bargaining, by Ruth Weyand , Columbia Law Review, Vol. XLV, 579-583, and footnotes at 581, for an excellent discussion and citation of authority on, The Power of a Statutory Representative to Bar Unilateral Changes by Employer. 22N L. R. B v. Whittier Mills Company, 123 F (2d) 725 ( C. C. A 5 ), cited by the respondent on this point, is distinguishable on the facts. 22 See N. L. R. B. v. Columbian Enameling and Stamping Company, 306 U . S. 292; see also , N L. R. B. v. Reed 1 Prince Manufacturing Company, 118 F. (2d) 874 (C. C. A 1), enf'g. 12 N. L . R. B. 944, cert. den. 313 U. S. 595. CROMPTON-HIGHLAND MILLS, INC. 223 forfeited the right to be, and is not now entitled to be recognized as, the sole and exclusive representative of all the employees in said bargaining unit for the purposes of collective bargaining . . . ' This defense relates to the respondent's contention that by its insistence upon union security, the Union was acting in derogation of the rights of minority employees who, since they had voted against representation by the Union in the Board election, were presumably opposed to union security. The respondent argues that while there may be no legal authority for this proposition, it is a reasonable extension of the principle enunciated by the Supreme Court in the Steele and Two stall, and Wallace cases R9 The attempted extension of this principle to the facts in the instant case is un- tenable. The Court said in the Steele case, dealing with the'Railway Labor Act, We think that the Railway Labor Act imposes upon the statutory repre- sentative of a craft at least as exacting a duty to protect equally the inter- ests of the members of the craft as the Constitution imposes upon a legisla- ture to give equal protection to the interests of those for whom it legislates. Congress has seen fit to clothe the bargaining representative with powers comparable to those possessed by a legislative body both to create and rests tet the rights of those whom it represents . . . [Italics added.] The basic principle of the majority rule in collective bargaining has been stated as follows : In industrial government, just as in political government, there has to be majority rule, when it comes to actual government . . . The right of peti- tion, the right to lay grievances before Congress, is a right that any indi- vidual and every group roust have. Similarly, in industrial government, the right of petition, the right to lay grievances before the employer seems to me a right that every group should be accorded, and every individual, .. but if it comes to determining conditions of employment by making some kind of rules governing wages and hours, there obviously has to be a determi- nation on the basis of majority rule, or you have pure anarchy, just as you would have in government.' And this must be true of all aspects of appropriate subjects of collective bargain- ing, including union security. This contention of the respondent is patently without merit. Upon the basis of the foregoing, and upon the entire record, the undersigned finds that on August 13, 1945, and at all times material thereafter, the Union was and has been the duly designated representative of a majority of the em- ployees in the appropriate unit hereinabove described, and that by virtue of Section 9 (a) of the Act was, on August 13, 1945, and has since been, the exclusive representative of all the employees in the said unit for the purposes of collective bargaining with respect to rates of pay, wages, hours, and other conditions of employment. Upon the basis of the foregoing, and upon the entire record, the undersigned concludes and further finds that, by failing and refusing to furnish the Union with essential and pertinent information relating to the respondent's wage structure under its "point plan," job specifications, work assignments, and in- formation appertaining thereto, and by granting its employees a unilateral wage increase on January 1, 1946, the respondent has from August 31, 1945, to Deceni- 29 Steele v. Louisville & Nashville R. R., 323 U. S. 192 ; Tunstall v. Brotherhood of Locomo- tive Firemen & Enginemen, 323 U. S. 210 ; Wallace Corporation v. N. L R. B., 323 U. S. 248. 26 Professor Edwin E. Witte, in Hearings before Committee on Education and Labor on S. 2926, 73rd 'Cong., 2d Sess. ( 1934 ) Pt. 1, p. 243, quoted in Majority Rule in Collective Bargaining, cited supra, at 563. See also, the discussion therein at 556-565 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD her 19, 1945, and therafter to date, including January 1, 1946, failed and refused to bargain with the Union as the exclusive collective bargaining representative of the employees in the appropriate unit above described, and has thereby inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed under the Act. B. Interference, restraint, and coercion Early in the evening of August 2, 1945, the day after the election which re- sulted in the selection of the Union as collective bargaining representative, Overseer Fred Washington sent for Mrs. Archie Rider, one of his subordinate employees at the plant, and asked her about an altercation that had occurred in the spinning room that morning between her and Section Man Hoke Cox. Rider related that while she and another employee were having lunch at the plant, she engaged in a conversation with Cox, during which he made reference to her having voted in a "damn nigger election" and remarked in profane language that he disapproved. During the ensuing altercation, she ordered Cox out of her "alley " When she had concluded her recital, Overseer Washington re- marked, "Well, you did vote in a damn nigger election, didn't you?" the testimony respecting this episode was not contradicted, since Wash- ington did not testify The question to be determined, therefore, is whether the statement constitutes interference, restraint and coercion within the meaning of the Act. The implication of aspersion and villification of, any labor organiza- tion which attempts to bargain_ collectively for all employees, without racial discrimination, as well as disparagement of members of such an organization, is apparent. The effect of such a statement made by an overseer, whose re- lationship to his subordinate employees connotes employer attitude, is inescap- able. It is one method of discrediting unionism and its underlying purpose. On October 19, 1945, employee Hozy D. Corley, chairman of the negotiating committee, met Personnel Manager Frank Ethridge in the office of General Manager Pickford• in connection with a Community Chest drive. While await- ing Pickford, Ethridge referred to the negotiating conference which had termi- nated the day before, and asked Corley what he thought about it. Corley re- plied that "it looked bad." Ethridge thereupon stated that the respondent's representatives had "come to the conclusion that [Union Director] Douty had quit arguing for the help and gone to arguing for the Union itself " Corley took issue with this statement, and Ethridge remarked, according to Corley, "Well, the Union hired him hard and he had to do so much business to get so much money, or had to get some kind of a raise through the mill to get it." Corley ob- served that Douty's compensation would be unaffected even if he were to suc- ceed in organizing "every mill in Griffin." During the discussion Ethridge further stated that he did not think that the respondent would make any conces- sion on the question of union security or wage increases. Ethridge admitted that he had engaged in the discussion with Corley under the circumstances related. He conceded that he had stated that "it seemed to me the Union had quit negotiating for the people and had gone to negotiating for their own good," but that he had added that he "didn't blame Mr. Douty for I 28 The Board is its Decision and Direction of Election found, contrary to the Union's contention in the representation proceeding, that section nien were supervisory employees. In view, however, of the Union's desire to maintain a consistent position respecting the status of these employees, counsel for the Board stated at the hearing that he was not relying upon the statements of Section Man Cox, but was relying upon the statement made by Overseer Washington, an admittedly supervisory employee, as constituting interference, restraint and coercion CROMPTON -HIGHLAND MILLS, INC. 225 trying to secure himself, or secure the dues, that . . the people at Highland Mill . . . had asked them to come down there and they were certainly due to pay them"" It is apparent that the discussion arising out of the-issue of union security occurred at a time when negotiations were apparently at an impasse, and the statement attributed to Ethridge must be considered in this setting. Two further circumstances should be mentioned. It will be recalled that one of the matters upon which the parties were in disagreement at this stage was the preamble of the contract, under which the respondent insisted that the employees should be -named as party, in contradistinction to the Union. Although the recognition clause in the respondent's proposed contract recognized the Union as representa- tive of the employees in the unit, the respondent's insistence upon designating the parties to the contract as "Employer and Employees in the hereinafter de- scribed Bargaining Unit as, and hereinafter called, "Employees," indicates an intent upon the part of the respondent to accord the Union only qualified recog- nition. This position may have resulted from the respondent's erroneous con- ception of the status of the majority representative, already discussed How- ever, the respondent's subsequent conduct in unilaterally granting the wage increase affords-evidence of an intention upon the part of the-respondent to discredit the Union in the eyes of the employees.. The incidents related above, although treated separately herein for con- i enience in arrangement, cannot be isolated from the context of the respondent's unlawful conduct, but must be considered as part of the totality of a course of conduct calculated to defeat the employees' right of self-organization. Viewed in this light, Ethridge's statement to the chairman of the negotiating committee assumes added significance, and supports the conclusion that the statement was intended to further disparage and discredit the Union and its representatives, and to undermine it with the employees by charging the Union with subordinating the interests of the employees to its own. The undersigned so finds. Upon the basis of the foregoing, and upon the entire record, the undersigned concludes and finds that, by refusing to bargain with the Union as the exclu- sive representative of the respondent's employees, as heretofore found, by the statement of Overseer Washington to employee Rider, disparaging the Union, by the remarks of Personnel Director Ethridge to Chairman Corley of the negotiating committee, which had the necessary effect of undermining the Union, and by the totality of its conduct, the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed under the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III, above, occurring in connection with the operations of the respondent described in Section l;, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, have led and tend to lead to labor disputes burden- ing and obstructing commerce and the free flow of commerce. 21 Other testimony by Ethridge indicated that he had discussed with Conley the probable effect upon Douty's compensation of his securing union contracts which did not provide for union security in the respondent's and other mills in the area, Ethridge remarking that Doutv's lack of success in this respect might result in a decrease in salary or loss of his position. , 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Having found that the respondent has engaged in certain unfair labor prac- tices, the undersigned will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the respondent has refused to bargain collectively with the Union by refusing, despite the Union's request, to furnish complete and relevant information concerning the "point plan" and its relation to the respondent's wage structure, including job specifications, actual earnings of em- 'ployees under the plan, the basis of guaranteed minimum ,wage rates, work assignments and other like and related information, and by granting employees a unilateral wage increase. In order to effectuate the policies of the Act, it will be recommended that the respondent, upon request, bargain collectively with the Union as the exclusive representative of its employees in the appropriate unit, respecting rates of pay, wages, hours, and other terms and conditions of employ- ment, and specifically, but without limitation, upon all appropriate subjects of collective bargaining, the matters specifically mentioned herein. Nothing herein shall, however, be construed to require the respondent to withdraw or withhold from its employees any increase in wages heretofore granted. Despite the absence of any evidence of widespread anti-union animus or hos- tility, the record sufficiently indicates, as has been shown, a reluctance or refusal on the part of the respondent to accord the Union complete and unqualified recog- nition as the exclusive bargaining representative, and an intention of disparaging and discrediting the Union and its representatives, as indicated by the statements of Overseer Washington in connection with the election, and by Personnel Director Ethridge respecting the motives of Union Director Douty. Although the under- signed is not convinced upon the e^,idence that danger of the commission of other unfair labor practices is to be anticipated from the respondent's conduct in the past sufficient to justify a recommendation that the respondent be required to cease and desist from the commission of any other unfair labor practices, it will be recommended that the respondent cease, and desist from the unfair labor practices found, from interfering with the efforts of the Union to bargain collec- tively, and from disparaging or discrediting the Union or its representatives. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW 1. Textile Workers Union of America, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. All production and maintenance employees, including watchmen, of the respondent, employed at its Griffin plant, but excluding office, clerical, technical, and laboratory employees, section men in the spinning room, head loom fixers in the weave room, head fixers in the card room, all supervisory' employees of the grade of second hand and above, 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, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act 3. Textile Workers Union of America, affiliated with the Congress of Industrial Organizations, was, on August 13, 1945, and at all times thereafter has been and Is now, the exclusive representative of all employees in the aforesaid appropriate 28 See N. L. R. B. v. Express Publishing Company, 312 U. S. 426; May Department Stores Compuny v N L R. B., 326 U. S 376. CROMPTON-HIGHLAND MILLS, INC. 227 unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4 By refusing from August 31, 1945, to December 19, 1945, and at all times thereafter, including January 1, 1946, to bargain collectively with Textile Workers Union of America, affiliated with the Congress of Industrial Organizations, as the exclusive representative of all its employees in the aforesaid appropriate unit, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section S (5) of the Act 5 By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section S (1) of the Act 6 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record, the undersigned recommends that the respondent, Crompton-Highland Mills, Inc., Griffin, Georgia, its officers, agents, successors, and assigns shall: 1 Cease and desist from : (a) Refusing to bargain collectively with Textile Workers Union of America, affiliated with the Congress of Industrial Organizations, as the exclusive repre- sentative of all production and maintenance employees, including watchmen, of the respondent, employed at is Griffin plant, but excluding office, clerical, technical and laboratory employees, section men in the spinning room, head loom fixers in the weave room, head fixers in the card room, all supervisory employees of the grade of second hand and above, and all other supervisory employees, respecting rates of pay, wages, hours of work, and other conditions of employ- ment, and particularly with respect to those matters defined in the section entitled "The remedy" herein, concerning which it has been found the respondent has failed or refused to bargain;' (b) Unilaterally granting wage increases or making any other changes in wage rates of the employees in the aforesaid unit without consulting with said Union ; (c) In any manner interfering with the efforts of Textile Workers Union of America, affiliated with Congress of Industrial Organizations, to bargain col- lectively with the said Union in behalf of the employees in the aforesaid appro- priate unit; (d) Interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed under the Act, by disparaging and discrediting the said Union and its representatives. 2 Take the following affirmative action which the undersigned finds will effectuate the policies of the Act: (a) Upon request, bargain collectively with Textile Workers Union of America, affiliated with the Congress of Industrial Organizations, as the exclusive repre- senatative of all the employees in the aforesaid unit, respecting rates of pay, wages, hours of work and other conditions of employment, specifically with respect to those matters defined in the section entitled "The remedy" herein, and, if an understanding is reached, embody such understanding in a signed agreement ; (b) Upon request, furnish Textile Workers Union of America, affiliated with the Congress of Industrial Organizations, with complete and relevant informa- tion concerning the "point plan," and its relation to the respondent's wage struc- 712 844-47-vol 70-16 0 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ture, job specifications, actual earnings of employees under the plan, the basis of guaranteed minimum wage rates, work assignments and other like and related information; (c) Consult with Textile Workers Union of America, affiliated with the Con- gress of Industrial Organizations, prior to granting wage increases or making any other changes in wage rates of the employees in the aforesaid unit; (d) Post at its plant at Griffin, Georgia, copies of the notice attached hereto and marked "Appendix A." Copies of said notice to be furnished by the Re- gional Director for the Tenth Region, shall, after being duly signed by the respondent's representative, be posted by the respondent immediately upon re- ceipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material; (e) File with the Regional Director for the Tenth Region on or before ten (10) days from the date of the receipt of this Intermediate Report, a report in writing setting forth in detail the manner and form in which the respondent has com- plied with the foregoing recommendations. It is further recommended that unless on or before ten (10) days from the receipt of this Intermediate Report the respondent notifies said Regional Direc- tor in writing that it has complied with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 3, as amended, effective November 27, 1945, any party or counsel for the Board may, within fifteen (15) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof. Immediately upon the filing of such statement of exceptions and/or brief, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. As further provided in Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) clays from theldate of the order trans- ferring the case to the Board. IRVING ROGOSIN, Trial Examiner. Dated March 25, 1946. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the rcommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT refuse to bargain collectively with Textile Workers Union of America, affiliated with the Congress of Industrial Organizations, as the exclusive representative of the employees in the unit described below. CRO1\IPTON-HIGHLAND MILLS, INC. 229 WE WILL NOT unilaterally make any changes with respect to rates of pay or wages, of the employees in the bargaining unit described below without prior consultation with the said Union. WE WILL NOT in any manner interfere with the efforts of Textile Workers Union of America, affiliated with the Congress of Industrial Organizations, to bargain collectively with the said Union in behalf of the employees in the bargaining unit described below. WE WILL NOT interfere with, restrain, or coerce our employees by dis- paraging or discrediting the said Union or its representatives. WE WILL. bargain collectively with Textile Workers Union of America, affil- iated with the Congress of Industrial Organizations, as the exclusive repre- sentative of our employees in the bargaining unit described below. WE WILL furnish Textile Workers Union of America, affiliated with the Congress of Industrial Organizations, upon request, with complete and relevant information concerning the "point plan" and its relation to the respondent's wage structure, the operation of the said plan, job specifications, actual earnings of employees, the basis of guaranteed minimum wage rates, work assignments, and other like or related information. WE WILL consult with Textile Workers Union of America, affiliated with the Congress of Industrial Organizations, prior to granting wage increases, or making any other changes in wage rates of the employees in the bargaining unit described below. The bargaining unit is : All production and maintenance employees , including watchmen, of the respondent employed at its Griffin plant, but excluding office, clerical , technical and laboratory employees , section men in the spinning room, head loom fixers in the weave room , head fixers in the card room, all supervisory em- ployees of the grade of second hand and above , 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. CROMPTON -HIGHLAND MILLS, INC, By-------------------- ------------- (Representative ) ( Title) Dated --------------------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. C 0