Pool Manufacturing Co.

In the Matter Of POOL MANUFACTURING COMPANY and UNITED GAR- MENT WORKERS OF AMERICA, A. F. L. Case No. 16-C-1298.-Decided August 26, 1946 Mr. Louis R. Mercado, for the Board. Mr. John M. Scott, of Fort Worth, Tex., and Messrs. Freeman, Wolfe, and Keith, by Messrs. Sam D. Wolfe and David H. Brown, of Sherman, Tex., for the respondent. Miss Emily Jordan and Mr. A. F. Cadena, of San Antonio, Tex., for the Union. Mr. James Zett, of counsel to the Board. DECISION AND ORDER On June 25, 1946, Trial Examiner Joseph C. Wells issued his Intermediate Report inothe above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices and recommending that the respondent cease and de- sist therefrom and take certain affirmative action as set forth in the copy of the Intermediate Report attached hereto. No exceptions to the Intermediate Report were thereafter filed with the Board. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are here- by affirmed. The Board has considered the Intermediate Report and the entire record in the case, and hereby adopts the findings, con- clusions, and recommendations of the Trial Examiner. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Rela- tions Board hereby orders that the respondent, Pool Manufacturing Company, Sherman, Texas, and its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Refusing to bargain collectively with United Garment Workers of America, affiliated with the American Federation of Labor, as 70 N. L. R. B., No. 41. 540 POOL MANUFACTURING COMPANY ' 541 exclusive representative of all the respondent's production employees at its Sherman, Texas plant, including employees in the shipping and cutting departments, and including the boiler room employees and the maintenance machinists, but excluding all main office employees, plant office employees, the shipping clerk, billing clerk, the assistant shipping department supervisor, floorladies and floormen, the piece goods foremen, the janitor, the watchman, the gardener, and all supervisory employees with authority to hire, promote, discharge, dis- cipline, or otherwise effect changes in the status of employees, or effectively recommend such action; (b) In any manner interfering with, restraining, and coercing its employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist United Garment Workers of America, affiliated with the A. F. L., or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : - (a) Upon request, bargain collectively with United Garment Work- ers of America, affiliated with the A. F. of L., as the exclusive repre- sentative of the respondent's employees in the unit described in 1 (a) of this Order, and if an understanding is reached, embody such under- standing in a signed agreement; (b) Upon application offer to those employees who went on strike on November 5,-1945, and thereafter, and who have not previously applied for reinstatement, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, in the manner provided in the Section of the Intermediate Report attached hereto entitled "The remedy" and place those employees for whom employment is not immediately available upon a preferential list in the manner set forth in said Section, and thereafter, in said manner, offer them employment as it becomes available; (c) Make whole the employees specified in paragraph 2 (b) above, for any loss of pay they may suffer by reason of the respondent's refusal, if any, to reinstate them, by payment to each of them of a sum of money equal to that which he would normally have earned as wages during the period from five (5) days after the date on which he applies-for reinstatement to the date of the respondent's offer of reinstatement or placement upon a preferential list, less his net earn- ings, if any, during said period; 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Post at its plant at Sherman, Texas, copies of the notice at- tached to the Intermediate Report, marked "Appendix A." 1 Copies of said notice, to be furnished by the Regional Director for the Six- teenth Region, shall, after being signed by the respondent's repre- sentative, be posted by the respondent 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. In addition, copies of said notice shall be mailed by respondent to each of its employees who are presently on strike in the same manner that respondent mailed to such employees its letters of February 1, 1946, and January 18, 1946, mentioned in Section III B of the Intermediate Report. Reasonable steps' shall be taken to insure that said notices are not altered, defaced, or covered by any other material; (e) Notify the Regional Director for the Sixteenth Region in writing, within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. CHAIRMAN HERZOG took no part in the consideration of the above Decision and Order. INTERMEDIATE REPORT Mr. Louis R. Mercado , for the Board. Mr. John M. Scott, of Fort Worth, Tex., and Messrs. Freeman, Wolfe and Keith, by Messrs. Sam D. Wolfe and David H. Brown, of Sherman, Tex., for the respondent. Miss Emily Jordan and Mr. A. F. Cadena, of San Antonio, Tex., for the Union. STATEMENT OF THE CASE Upon a charge duly filed on December 20, 1945, by United Garment Workers of America, affiliated with the American Federation of Labor, herein called the Union, the National Labor Relations Board , herein called , the Board, by its Regional Director for the Sixteenth Region ( Ft. Worth, Texas), issued its com- plaint dated April 10, 1946, against Pool Manufacturing Company, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and the charge, together with notice of hearing thereon , were duly served upon the respondent and the Union. With respect to unfair labor practices , the complaint alleges in substance that the respondent : on or about September 26, 1945, and continuously thereafter until the date of the complaint , refused to bargain collectively in good faith with the Union as the exclusive representative of its employees in an appropriate unit, although the Union has been the selected and designated representative of such employees since on or about December 17,,1943, by (1) refusing upon request by the Union to furnish to the Union full information and data concerning earning and production records of its employees within the appropriate , bargaining unit; This notice, however, shall be, and it hereby is, amended by striking from the first paragraph thereof the words "RECOMMENDATIONS OF A TRIAL EXAMINER" and substituting in lieu thereof the words ; A DECISION AND ORDER." POOL MANUFACTURING COMPANY 543 .(2) making misleading representations to its employees in the appropriate unit concerning the status of bargaining negotiations between it and the Union; (3) refusing to meet seasonably with the Union pursuant to the latter's request; (4) limiting negotiations between it and the Union to the discussion of wages for production operators and refusing to discuss with the Union any other terms or conditions of employment or provisions of union security; (5) attempting to negotiate directly and unilaterally with its employees in the appropriate unit ; and (6) following a strike of employees in the appropriate unit on November 5, 1945, stating that effective bargaining could thereafter be accomplished only after a termination of the strike The complaint further alleges in substance that the respondent had engaged in unfair labor practices within the meaning of Section 8 (1) of the Act by (1) urging striking employees to return to work; (2) inducing employees to withdraw from the Union; (3) threatening and warning its employees from assisting, becoming or remaining members of the Union; (4) interrogating employees concerning their union affiliation; and (5) keeping under surveillance the union activities of its employees. The respondent failed to file an answer to the complaint. Pursuant to notice, a hearing was held in Sherman, Texas, on April 29 and 30, May 2, 20, and 21, 1946, before the undersigned Joseph C. Wells, Trial Examiner duly designated by the Chief Trial Examiner. The Board, the respondent, and the Union appeared and participated in the hearing. The Board and the re- spondent were represented by counsel and the Union by two of its lay repre- sentatives. Full opportunity to be heard, to examine and cross-examine wit- nesses, and to introduce evidence bearing on the issues was afforded all parties. At the close of the taking of evidence presented by the Board, counsel for the respondent moved to dismiss the complaint for lack of proof. The undersigned denied the motion. Counsel for the Board then moved to amend the complaint with respect to minor matters such as the correction of misspelled names. The motion was granted. Thereafter the undersigned offered to hear oral argument by the parties. Counsel for the Board and the representatives of the Union declined to present any argument. Counsel for the respondent, however, orally presented a summation of the respondent's position in the case, and counsel for the Board replied briefly. Both statements are part of the stenographic report of the hearing. The parties were then advised that they might file briefs with the undersigned on or before June 3, 1946. No brief has been received from any of the parties. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Pool Manufacturing Company, a Texas corporation , having its principal offices and only plant in Sherman , Texas, is engaged in the manufacture, sale and ds tribution of men's work clothing . During the year 1945 , its purchases of raw materials had a total value of about $600,000, of which materials valued at approximately $400;000 were shipped to it from points outside the State of Texas. During the same period , its- finished products totaled in excess of $1,000,000 in value, of which approximately 50 percent was shipped from its plant to points outside the State. The respondent conceded at the hearing that it is engaged in commerce within the meaning of the Act. 544, DECISIONS, OF NATIONAL LABOR RELATIONS BOARD II. THE ORGANIZATION INVOLVED United Garment Workers of America, affiliated with the American Federation of Labor, is a labor organization admitting to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES Background Following its certification by the Board on December 17, 1943, as the majority representative of respondent's employees in a unit found by the Board to be appropriate,' the Union entered into a written contract with the respondent expressing an agreement between the parties resultant from collective bargain- ing and a proceeding before the- National WarLabor Board. The contract was executed November 17, 1944, and by its terms terminated November 1, 1945. The contract incorporated a plan known as the "Norris Unit Pay Plan" which prescribed an assembly-line production system slightly different from that util- ized under the "piece work rate" system which had been in effect prior to the installation of the Norris unit system. The 1944 contract did not produce the harmony between the parties which doubtlessly each had anticipated. The Union contended that the inherent char- acter of the Norris system and./or its application by the respondent resulted in a reduction of wages rather than the increase which had been contemplated by the contract. The respondent, on the other hand, contended that the Norris unit system, given proper employee cooperation, would accomplish both greater production efficiency and increased pay for its employees. Neither attempts at collective bargaining nor the Union's utilization of the processes of the National War Labor Board during the period covered by the contract satisfactorily resolved the issue. Indeed, as indicated by subsequent events, it appears that these efforts merely served to widen and crystallize the breach between the parties as the 1944 contract drew to a close. In any event, the dissatisfaction remained and supplied the keynote for the occurrences which afford the basis for the complaint herein. A. The refusal to bargain collectively with the Union 1. Sequence of events On September 26, 1945, about 5 weeks prior to the expiration date of the 1944 contract -mentioned above, the Union by letter advised Frank G. Trau, the respondent's president, that on or about the' 10th of October 1945, it would be prepared to negotiate for certain changes in the then existing contract In re- ply, Trau orally advised Vesta Haizlip, president of the Union, that he would be unable to meet with the Union's representatives until after October 15, 1945, and arrangements were made to meet on October"16, 1945. On the latter date, Emily Jordon, International Representative of the Union, and a committee composed of Haizlip, Alberta Biggerstaff, Cleo Brown, Effie Nelson, and Lillian ,McSpedden met with Trau and W. T Tuttle, respondent's secretary-treasurer at the plant office. The Union submitted to Trau and Tuttle a proposed written contract covering the following subjects : Matter of Pool Manufacturing Company, 53 N. L R B. 648. POOL MANUFACTURING COMPANY 545 Recognition of the Union Union security ( Union Shop) Union security ( Check off of union dues, fines and assessments), Hours of work Vacations Seniority Shop committee Adjustment of Disputes Arbitration Wages Show up time pay Duration of agreement Trau read the Union's proposal for a new contract , asserted that the respondent would "never agree" to the union shop -provision , inquired-in a-jdcular manner as to whether the respondent would receive a commission for checking off dues, and commented finally, "I see you girls didn't ask for any more than fifty cents [minimum hourly wage] and that 's what's hurting us is, the wage mini- mum is breaking us." After some discussion , Trau offered the bargaining com- mittee a 10-percent increase in the value of the unit. The committee explained that the Union proposal on wages contemplated a return by respondent to the piece-work rate system, that the installation of the Norris unit system had re- duced the wages whicli they had earned theretofore under the piece-work rate system, and that the 10-percent increase in the volume of the unit which Trau proposed would not compensate the employees for the loss which they had suf- fered. In support of its contention the Union pointed to the effect that a 10= percent increase in the unit value would have on the wages of one or more of the committeewomen. Tuttle commented that, "if he was as dissatisfied as . . . the committee," he'd quit and "not go back in the shop and try to make every- body else dissatisfied." The discussion made it abundantly clear that the Union was opposed to the continuation of the Norris unit system . . . a position which the respondent evidenced no inclination to meet. The Union, through Miss Jordan, then proposed, "Mr. Trau, let's start at the top of the [proposed] contract and take each paragraph and what we can agree upon we will, and what we cannot we will make a question mark and come back and get to it." Trau replied, "There's no use wasting time on a contract until we agree on wages and it'll be ten per cent. That's all we can stand." Miss Jordan then stated, "Yes, Mr. Trau, but you are not bargaining collectively. Let's start out and see what we can make out of it." Trau again replied, "There's no use wasting time." After arranging for a meeting on October 19, 1945, the conference then dissolved. The meeting occurred on October 19, 1945, as previously arranged. Trau stated that he had a plan as to wages which he believed would satisfy 90 percent of the , employees, and asked that the Union give him a few days to seek advice from an unidentified man "from a stitching plant." One of the committeewomen suggested . that Trau tell "the girls" in the plant of his request. He agreed. Tuttle, who had left the meeting to hook up the loud speaker system in the plant, returned and advised. "For your information there hasn't a machine wheel turned in thirty minutes." Trau nevertheless spoke to the employees asking that they be patient and stating that the committee had agreed "to give him-until the 23rd [of October ] to submit his plan. The employees and the committee then returned to work. - On October 23, 1945, the parties again met at the plant office. Trau opened the meeting by referring to a recent speech of the President of the United States, 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and stated that since listening to the President's speech, "he had decided to offer the Union an increase of 213/4 per cent in the value of the unit." The Union replied that, such an increase would not, "in some cases, . . . bring their [the employees] wages to what they,were when they were taken off of piece rates." Trau again mentioned the "man from the stitching plant" and his plan, and stated that he had arranged for this man to discuss a "job evaluation plan" with the Union later in the week. The Union agreed to attend this discussion. Trau reiterated that there was no use in discussing a contract until- the Union agreed to accept the unit system and that "it would be a dollar and- five cents 8 and nothing more." On October 27, 1945, pursuant to arrangements made theretofore, the Union met again with respondent. Trau introduced a Mr. Windsor as the "man from the stitching plant" to whom he had referred at the earlier meetings of October 19 and October 23. Windsor stated that respondent had assigned him.to outline to the Union a job evaluation plan, and then proceeded to explain the plan. In response to an inquiry as to the effect of the plan on wages, Windsor replied that he had no authority to discuss that problem beyond outlining and explaining the mechanics of the plan. Subsequently, on October 29; 1945, Trau gave the union representative a written analysis of the plan,' and on November 1, 1945, he advised the employees in a speech at the plant of his offer to increase the unit value by 21% percent. The Union rejected the job evaluation plan in its entirety. During the morning of November. 2, 1945, the union committee appeared at Trau's office and sought to continue negotiations. Jordan began the conference by stating that the Union "would like to try to negotiate a contract." Trau repeated that it would be futile to go into the contract until an agreement should be iea l ed,on_w.ages. After some further discussion on the" relative merits of the Norris unit system and the piece work rate system, the meeting was ad- journed until that afternoon. When the meeting again convened, Trau requested the Union to calculate the labor cost under the Union's proposed piece work rate for producing each of the various garments respondent manufactured so that it could be compared with the labor cost under the Norris unit system. Having made the calculations requested by Trau, the union group informed Trau of the results at the Tatter's- office on November 5, 1945. After some dis- cussion, Trau reiterated that respondent would adhere to the use'of the Norris unit system and that its offer of a 213/4 percent increase in the unit value was its final offer. Trim again declined to negotiate- matters other than wages, stating that he "didn't see any use in that " The meeting of November 5, 1945, described above, occurred in the morning. After lunch the employees returned to work. However, "the majority of the operators did not sew" and from 1 p. in. until 5 p. in. merely sat at their machines without performing any work. Respondent took no action beyond noting the stoppage of work on the time cards of those employees who had ceased work. At 5: 00 p. in. the strikers left the plant, and later established a picket line in front of the plant. The strike was still in progress at the close of the hearing herein. - A few days after the strike commenced, the Union appealed to the Central Labor Union of Sherman, Texas, a council of local unions affiliated with the 2 One dollar and five cents represented the rate per 100 units after the 213/4 percent increase was applied. 3 The job evaluation plan suggested a formula whereby each ' employee's work would be evaluated in order to ascertain the worth of her or his operation . The written analysis thereof made it clear that the plan was to. be effectuated jointly by the Union and the respondent. POOL MANUFACTURING COMPANY 547 American Federation of-Labor, "to try to get them [respondent] to see into some of the points which they [the Union and the respondent] were deadlocked upon." In response to this request, delegates from the Central Labor Union conferred with Trau During the conference, the union group attempted to persuade Trau to accept the closed shop demands of the Union, and its con- tentions relating to the Norris unit system The union group further advised Trau "what the Central Labor Body could do in the way of putting the Company on the unfair list." 4 On November 20, 1945, A. F. Cadena, General Organizer for the Southwest District, American Federation of Labor, while on the picket line in front of respondent's plant, engaged in a conversation with Trau. Cadena suggested that there "was no reason for the turmoil of the strike," and that, "if he would meet with the . . . committee," he thought they could get together on the thing and reach some agreement." Trau agreed to participate in a meeting on the following day with Cadena and the committee. The meeting so arranged began by Trau requesting that the Union submit its proposal. The Union replied that they had no other proposals than those contained in the suggested agreement submitted to Trau on October 16, 1945. The Union suggested that the only manner in which an agreement could ever be reached was to take the Union's proposed contract one article at a time-and then "get together on a give and take basis." ` Tran's reply was "There's only one thing I can do and that is to get you people to agree on the units and put the girls back to work." Biggerstaff, a union committeewoman, stated, "Mr. Trau, if you cannot give us the union schedule of prices on piece rates the girls would be satisfied with the old piece rates that we were on when you went on the unit system plus the ten per cent increase in wage."' Trau asked that he be given time to consider this proposal, and suggested that they meet again on November 27, 1945. The meeting of November 27, 1945, is described as follows by the testimony of witness Biggerstaff : He [Trau] said, "I don't think it will be necessary [for the committee] to get chairs. My remarks will be brief" . . . We [the committee] stood there. He [Trau] took this piece of paper in his hand . . . He said he had considered piece rates and they [respondent] were in no position, to give them to us; that he had conferred with the stockholders and directors and that any statement he had heretofore made he was now withdrawing. Miss Jordan said, "Mr. Trau, . . . do you mean that this is your refusal to bargain in good faith with the Union?" He [Trau] said "I have no com- ments to make." We started out. Miss Jordan turned around and went back and said, "Mr. Trau, is this your final refusal to bargain with the Union?" He [Trau] said, "Oh, my doors are always open I have no further comment to make." On or about December 4, 1945, Cadena spoke to Trau and asked why he didn't "try to get together" with the striking employees. Trau replied that his "doors were open at all times," but that it appeared as though he was "probably meet- ing with the wrong committee" and that he "couldn't get along with the com- mittee." Subsequent similar efforts by Cadena to secure a settlement of the 4 Subsequently , respondent was placed on the "unfair list" by the Central Labor Union, and on or about February 18, 1946, the delegates again visited Trau primarily to advise him that such action had been taken. 6 Jordan told Trau that the Union was in the mood for trading 1"horse trade if that is what'he wanted to call it." 6 Although this proposal obviously contemplated the abandonment of the Norris unit system , it represented a reduction of the Unio"'a "riginal rate demands. 712344-47-vol 70-36 548 DECISIONS OF ,-NATIONAL LABOR RELATIONS BOARD dispute, including several conversations with John M. Scott, respondent's attorney, were fruitless. Subsequent to the beginning of the strike , the Union made numerous efforts to utilize the services of the United States Department of Labor, United States Conciliation Service, in settling its disputes with the respondent. The respondents refused to participate in meetings which that agency sought to arrange.' 0 2. The appropriate unit The undersigned finds that all of the respondent's production employees at its Sherman, Texas plant, including employees in the shipping and cutting departments, and including the boiler room -employees - and the maintenance machintsts, but excluding all main office employees , plant office employees, the shipping clerk, billing clerk, the assistant shipping department supervisor, floor- ladies and floormen, the piece goods foremen, the janitor, the watchman, the gardener and all supervisory employees with authority to hire, promote, dis- charge, discipline , or otherwise effect changes in the status of employees, or effectively recommend such action , at all times material herein constituted, and now constitute , a unit appropriate for the purpose of collective bargaining with respect to rates of pay , wages, hours of employment, and other conditions- of employment, and that sad unit insures to the employees of the respondent the full benefit of their right to self-organization and collective bargaining and otherwise effectuates the policies of the Act.' 3. Representation by the Union of a majority in the appropriate unit At a secret ballot election conducted by the Board on December 7, 1943, among the, employees in the unit found above to be appropriate, the Union was desig- nated by a majority of the employees who participated in said election. Ac- cordingly, on December 17, 1943, the Board certified the Union as the exclusive representative of the respondent's employees in this unit. On November 17, 1944, the Union and the respondent executed a contract which by its terms termi- nated November 1, 1945. At the hearing herein, there was introduced in evidence by Board's counsel a list prepared by the respondent containing the names of all the respondent's' employees in the unit herein found to be appropriate: The list shows that on November 5, 1945, the respondent had in its employ 196 persons in the said unit. Board's counsel also introduced in evidence a list prepared by Biggerstaff,' the secretary-treasurer of the Union, who testified that the list contained the names of members of the Union who, on November 5, 1945, were employees of respondent A comparison of the two lists by the undersigned, shows that 106 of the names which appeared on the list of union members were identical with those which appeared on the list of employees prepared by the respondents The testimony of witness Biggerstaff was not I All 'of the facts set forth above in Section III are based on the credible testimony of witnesses produced by the Board . The respondent offered no evidence at the hearing herein and , further, did not by cross -examination or other method seek to contradict any of the testimony upon which the above findings of fact are based. This is the unit found to be appropriate by the Board in a Decision and Direction of Election dated November 15, 1943, involving the respondent 's plant. See liatter of Pool Manufacturing Company, 53 N. L. R. B. 684 . The complaint herein alleged substantially the same unit to be appropriate . The respondent at the hearing herein raised no issue with respect to the appropriateness of-this unit. e lither names on the Union 's list may very well have been the same -persons appearing on the respondent pay-roll list but were not counted by the undersigned in determining the Union ' s majority because whereas the person 's full name appeared on one of the lists only a corresponding initial or a variation in spelling of the name appeared on the other list. POOL MANUFACTURING COMPANY 549 contradicted, and the undersigned found her to be a credible witness." The presumption of the Union 's continuing majority flowing from the Board's certi- fication and the contract executed by the Union and the respondent, on November 17, 1944, is thus corroborated by the showing of an actual majority on November 5, 5 days after the expiration of the contract. The respondent, in fact, at no time in its negotiations with the Union challenged the Union's status as bargaining representative. Upon the basis of the foregoing findings of fact and upon the entire record, the undersigned finds that on October 16, 1945, the date of the first negotiations between the Union and the respondent on a new contract , and at all times ma- terial herein, the Union was the duly designated collective bargaining representa-_` tive of the respondent's employees in the unit found to be appropriate. Pursuant t6 Section 9 (a) o€ the.Act, the Union, therefore, was and is the exclusive representative of all' the employees in such unit for the purposes of collective bargaining with respect to rates of pay, hours of employment, and other con- ditions of employment. 4. The refusal to bargain It is obvious from the facts recited above that negotiations between the re- spondent and the Union had reached an impasse with respect to the Norris Unit Pay Plan which the respondent proposed to continue in operating its plant. The Act, of course, does not require that an employer agree to the demands of a union and, therefore, respondent's refusal to accede to the Union's request to return to the piece work rate system or to agree to the proposal for a closed shop does not constitute here a violation of the Act. Indeed, with respect to the issue involving the Norris unit system, it is apparent that the respondent made considerable effort to. resolve this dispute by his counter offers of wage increases -and his proposal to re-evaluate, with the Union's cooperation, the jobs of the individual operators who worked under the unit system. However, -the Act clearly requires an employer to bargain on all matters involving the employees' terms-and--conditions-of employment,-and- the undersigned-is unable to perceive any validity in the respondent's contentions that the inability of the parties to .agree on the subject of wages or the closed-shop issue constitutes a defense to a refusal to bargain with respect to the other matters which the Union requested be considered. While doubtlessly the matter of wages was considered of primary importance by both parties, it is by no means evident, as the respondent seems to contend, that a resolution of this issue would have resulted in accord between the parties on all other matters for which the Union was the representative of the employees Further, even conceding, ai gucndo, that an agreement by the parties on the subject of wages would effectuate such accord, one of the reason- able methods by which such an agreement might have been reached lay in the -possibility that either the respondent or the Union might retreat from its seem- inflexible position on the wage issue because of concessions given or taken -during negotiations on items other than wages, i. e., in this case, vacations, seniority, methods of handling grievances, etc. Indeed, the possibility that such negotiations might result in the Union relaxing its demands on the wage issue was presented squarely'44 Trau on November 21, 1945, by'Biggerstaff who said, "Mr. Trau, if we got a good contract out of you, you might be surprised at what we would tell you about the wages." - 10 Although respondent's counsel objected to the competency of the list prepared by witness Biggerstaff as proof of the identity of the Union 's members, respondent made no effort to cross-examine the witness nor to in any way contradict her testimony on this issue See Stewart Die Casting Corporation v. N. L. R. B, 114 F. (2d) 849 ( C. C. A 7), •enf'g 14 N. L. R B. 872. 550 " DECISIONS OF NATIONAL LABOR RELATIONS BOARD In view of the foregoing, the undersigned is of the opinion that the respondent's frequent protestations that his "doors are always open" for collective bargaining negotiations with the Union comprised no more than offers to meet for a limited purpose and , hence, did not express a willingness to comply with the requirements of the Act." The undersigned finds that on October 16, 1945,12 and at all times thereafter; the respondent refused to bargain collectively with the Union as the representative of its employees in the appropriate unit and thereby interfered with, restrained and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The undersigned further finds that the strike at the respondent's plant beginning on November 5, 1945," was caused and prolonged by the respondent's unfair labor practices in refusing to bargain collectively with the Union. B. Interference, restraint, and coercion 1. The sequence of events In January 1946, while the strike was still in progress, the respondent moved to -restaff its plant. On January 18, 1946, respondent mailed a letter to each of its striking em- ployees wherein it stated that it had not at that time "made any effort to replace" persons who were on strike, and that when it decided to do so it would be done through a newspaper advertisement "so that everyone will have an opportunity to protect his job rather than being replaced in our plant." 14 On January 27, 1946, respondent inserted an advertisement in the Sherman Daily Democrat, a newspaper published in Sherman, Texas, soliciting applicants for permanent jobs at its plant. The advertisement stated in part that "em- ployees now on strike may return without discrimination in pay rate." On February 1, 1946, the respondent transmitted to each of its striking em- ployees the following letter : "The undersigned finds no merit in the Board 's contention that the respondent 's refusal to meet with the representative of the United States Conciliation Service constituted per se- a refusal to bargain within the meaning of the Act See N L R. B. v. Columbian Enameling and Stamping Company, Inc, 306 U. S. 292 . Nor is there merit in the Board's contention that the respondent committed any unfair labor practice by refusing upon request to furnish the Union data concerning earnings and production records of the employees in the,bargaining unit without resolving the issues of credibility presented by the conflicting testimony of the Board's witnesses as to whether or not during the period such refusal is alleged to have occurred the Union actually made any request for such 'data, there was no evidence adduced to show that the negotiations between respondent and the Union were in any manner impeded by the latter 's lack of such data. 12 The date of the first bargaining conference on a new contract when the respondent for the first time asserted its position that it would not bargain on other proposals by the Union until the wage issue had been agreed upon. Succeeding conferences show that the respondent entered into negotiations with a fixed determination not to bargain on other union proposals until the wage issue was disposed of, and adhered to this position at all times thereafter. 13 The majority of the employees ceased work soon after 1 : 00 P. M. on November 5, 1945. The following morning November 6, 1945, all of the employees reported for work and immediately walked out en masse. . 14 The letter also noted that respondent would "endeavor" to reinstate the strikers when they ended the strike, and warned the strikers that the respondent would not tolerate the conduct of certain "well known" persons "who have deliberately tried to threaten and intimidate" some of its employees who had not participated in the strike . On January, 26, 1946, respondent filed a petition in the District Court of Grayson County, Texas, Fifteenth Judicial District, petitioning that Court to issue an order restraining the Union and certain individual members thereof from the repetition of certain acts of violence and intimidation specifically alleged to have been committed. Apparently, as of the close of the hearing herein, the Court had made no, determination of the issues presented it. POOL MANUFACTURING COMPANY 551 As you know we are employing a number of new operators in the plant and we want to train them for definite machines and operations. Will you please use the stamped self-addressed envelope attached to ad- vise-me if you expect to return to work as we want to protect your own oper- ation for you so far as practical and not make it necessary for you to learn a new operation when and if you return. Please understand that we do not require that you now return`to work. You may remain on strike indefinitely, and we will have no "hard feelings." If is now clear that the strike is more or less permanent and we must proceed with our restaffing. The requested information will assist us in our program of handling this on the basis that you remain ,our employee even though we have had this unfortunate deadlock in our efforts to work together. Your suggestions will be appreciated. Yours very truly F. G. Tnau, President. On or about January 28, 1946, Ida McCullough, one of respondent's floorladies and a supervisory employee, visited the home of Fay Hood, one of respondent's striking employees. McCullough stated in substance that she was "around try- ing to get the girls to go back to work" ; asked Hood whether she would return ; stated that the Union "wasn't going to get what they wanted anyway" ; and warned that the respondent would hire replacements with the result that, unless she returned to work immediately, Hood would be unable to secure employment later when she desired it. McCullough further stated that had the employees not been "misled" by the Union they would not have struck and that respondent was "not going to go Union." " 2. Conclusions It is clear that,the temporary restafiing by respondent of its plant in order to continue its business during the progress of the strike was an act within its rights. However, the prosecution of this right does not entail, as the respondent appears to contend, any right to bargain individually with its employees to the exclusion of the Union, their exclusive bargaining representative-particularly when, as heretofore found in this case, the respondent had refused to bargain with such representative as required by the Act. Obviously, and the undersigned so finds, the respondent's letters of January 18 and February 1, 1946, the activities of McCullough, and the entire course of respondent's conduct as set forth above in this section comprised a not-too-subtle attempt to accomplish a dissolution of the strike by means other than voluntary action -of the strikers or collective bargaining with the Union. Further it is clear, and the undersigned so finds, that respondent did not seek merely to "bargain" with the individual employees in order to secure an end to their participation in the strike but by a carefully executed plan, attempted to accomplish its purpose by threatening them with either loss of their jobs or the need "to learn a new operation" unless the em- ployees abandoned the strike immediately " Upon the basis of the above findings and upon the entire record herein, the un- dersigned finds that the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 1" None of the facts set forth above were the subject of dispute at the hearing, and the undersigned's findings are based on either exhibits introduced at the hearing without objec- tion by respondent or the credible and-uncontradicted testimony of witnesses for the Board. 11 The Board introduced no evidence to support its allegation that the respondent had kept under surveillance the union activities of its employees. , 552 DECISIONS `OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III, above , occurring in connection with the operations of the respondent described in Section I, above,, have a close, intimate, and substantial relation to trade, traffic , and commerce among the several States, and such of them as have -been found-to be unfair labor practic 'tend to lead to labor disputes burdening and obstructing commerce and the frees ow of commerce. V. THE REMEDY Having found that the respondent has engaged in certain unfair labor practices, the undersigned will recommend that the respondent cease and desist therefrom and take certain affirmative action which the undersigned finds will effectuate the policies of the Act. It has been found that the respondent has refused to bargain collectively with the Union as the, exclusive representative of its employees in an appropriate unit. In order to effectuate the policies of the Act, the undersigned will recommend that, upon request, the respondent bargain collectively with the Union as the exclusive representative of its employees in the appropriate unit with'-respect to rates of pay, wages, hours, and other terms or conditions of employment. The undersigned has found that the unfair labor practices of the respondent caused and prolonged the strike which began on November 5, 1945. In order to restore the status quo as it existed prior to the time the respondent committed the unfair labor practices, the undersigned will recommend that the, respondent, upon application, offer reinstatement to their former or substantially equivalent posi- tions, without prejudice to their seniority and other rights and privileges, to those employees who went on strike and who have not previously applied for reinstatement, dismissing if necessary any persons hired by the respondent on or after November 5, 1945, and who were not in the employ of the respondent on said date. If thereupon, despite such reduction in force, there is not sufficient employment available for the employees to be offered reinstatement, all available positions shall be distributed among such employees without discrimination against, any employee because' of-his union; affiliation -ortactivities, following such a system of seniority or other non-discriminatory practice to such an extent as has heretofore been applied in the conduct of the respondent's business. Those employees, if any, remaining after such distribution, for whom no employment is immediately available, shall be placed upon a preferential list and offered employment in their former or substantially equivalent positions as such em- ployment becomes available and before other persons are hired for such work in the order determined among them by such system of seniority or other non- discriminatory practice as has heretofore been followed by the respondent. The undersigned will also recommend that the respondent make whole those employees who went out on strike, and who have not previously applied for rein- statement for any loss of pay they may suffer by reason of the respondent's refusal, if any, to reinstate them as provided above, by payment to each of them of a sum of money equal to that which he would normally have earned as wages during '-the period from five (5) days after the date on which he applies for reinstatement to the date of the respondent's offer of reinstatement or placement on a prefer- ential list, less his net earnings,'7 if any, during such period. I 11 By "net earnings" Is meant earnings less expenses , such as for transportation, room, and board, incurred by an employee in_ connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for the unlawful refusal to reinstate and the consequent necessity of seeking employment elsewhere. See Matter of Crossett Lumber Company, 8 N. L. R. B. 440. Monies received for work per- formed upon Federal, State, county, municipal, or other work -relief projects shall' be considered as earnings . See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7. POOL MANUFACTURING COMPANY 553 Upon a considered review of the entire record the undersigned is convinced that the respondent's conduct indicates an attitude of opposition by the respond- ent to the purposes of the Act generally . In order, therefore, to make effective the interdependent guarantees of Section 7 of the Act , to prevent a recurrence of un- fair labor practices , and thereby minimize industrial strife which burdens and obstructs commerce , and thus effectuate the policies of the Act, the undersigned will recommend that the respondent cease and desist from in any manner in- fringing upon the rights guaranteed in Section 7 of the Act. 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. United Garment Workers of America, affiliated with the American Federa- tion of Labor, is a labor organization within the meaning of Section 2 (5) of the Act. 2. All of the respondent 's production employees at its Sherman , Texas, plant, including employees in the shipping and cutting departments , and including the boiler room employees and the maintenance machinists , but excluding all main office employees, plant office employees , the shipping clerk, billing clerk, the assistant shipping department supervisor , floormen and floorladies , the` piece goods foremen , the janitor, the watchman , the gardener, and all supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees , or effectively recommend such action, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 8 ( 5) of the Act. 3. United Garment Workers of America, affiliated with the American Federa- tion of Labor, was on October 16, 1945, and at all times material herein has been the exclusive representative of all employees in the aforesaid unit for the pur- poses of collective bargaining within the meaning of Section 9 ( a) of the Act. 4. By refusing on October 16, 1945, and at all times thereafter to bargain collectively with United Garment Workers of America, affiliated with the Ameri- can Federation of Labor, as the exclusive bargaining representative , of all its employees in the appropriate unit, the respondent has engaged in and is engaging in unfair labor practices , within the meaning of Section 8 (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 8 (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, the undersigned recommends that the respondent , Pool Manufacturing Company. Sherman, Texas, its officers, agents, successors and assigns shall: 1. Cease and desist from : (a) Refusing to bargain collectively with United Garment Workers of America, affiliated with the American Federation of Labor, as exclusive representative of all the respondent's production employees at its Sherman , Texas, plant , including employees in the shipping and cutting departments, and including the boiler room employees and the maintenance machinists , but excluding all main office em- ployees, plant office employees, the shipping clerk, billing clerk , the assistant 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shipping department supervisor, floorladies and floormen, the piece goods fore: men, the janitor, the watchman, the gardener, and all supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action ; (b) In any manner interfering with, restraining, and coercing its employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist United Garment Workers of America, affiliated with the A. F. L., or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. - - 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (a) Upon request bargain collectively with United Garment Workers of Amer- ica, affiliated with the A. F. of L., as the exclusive representative of all the respondent's production employees at its Sherman, Texas plant, including em- ployees in the shipping-and cutting departments, and including the boiler -room employees and the maintenance machinists, but excluding all main office em- ployees, plant office employees, the shipping clerk, billing clerk, the assistant shipping department supervisor, floorladies and floormen, the piece goods fore- men, the janitor, the watchman, the gardener, and all supervisory employees with authority to hire, promote, discharge, discipline,'or otherwise effect changes in the status of- employees, or effectively recommend such action, and if an understanding is reached, embody such understanding in a signed agreement ; (b) Upon application offer to those employees who went on strike on November 5, 1945, and thereafter, and who have not previously applied for reinstatement, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, in the manner provided in Section entitled "The remedy" above ; and place those employees for whom employment is not immediately available upon a preferential list in the manner set forth in said section, and thereafter, in said manner, offer them employment as it becomes available ; (c) Make whole the employees specified in paragraph 2 (b) above, for any loss of pay they may suffer by reason of- the respondent's refusal, if any, to reinstate them, by payment to each of them of a sum of money equal to that which he would normally have earned as wages during the period from five (5) days after the date on which he applies for reinstatement to the date of the respondent's offer of reinstatement or placement upon a preferential list, less his net earnings," if any, during said period. (d) Post at its plant at Sherman, Texas, copies of the notice attached hereto marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, after being signed by the respondent's repre- sentative, shall 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.- In addition copies of said notice shall be mailed by respondent to each of its employees who are presently on strike in the same manner that respondent mailed to such employees its letters of February 1, 1946, and January 18, 1946, mentioned in Section III B herein. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material; (e) Notify the Regional Director for the Sixteenth Region in writing, within ten (10) days from the date of the receipt of this Intermediate Report, what steps the respondent has taken to comply herewih. 18 See footnote 17, above. POOL MANUFACTURING COMPANY 555 It is further recommended that unless on or before ten (10) days from the date of the receipt of this Intermediate Report, respondent'notifies said Regional Director in writing that he has complied with the foregoing recommendations, the National Labor Relations Board issue an order requiring 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 mo- tions 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 said 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) days from the date of the order transfer- ring the case to the Board. Any party desiring to submit a brief-in support of the Intermediate Report shall do so within fifteen (15) days from the date of the entry of the order transferring the case to the Board,'by filing with the Board an original and four copies thereof, and by immediately serving a copy thereof upon each of the other parties and the Regional Director. - JosiPa C. Wes, Trial Examiner. Dated June 25, 1946. APPENDIX A - NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the_ National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: We will not in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, td form labor organizations, to join or assist United Garment Workers of America, affiliated with the American Federation of Labor, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. All our employees are free to become or remain members of this union, or any other labor organization. We will bargain collectively upon request with the above-named union as the exclusive representative of all employees in the bargaining unit described herein with respect to rates of pay, hours of employment or other conditions of employment, and if an understanding is reached, embody such understand- ing in a signed agreement. The bargaining unit is : all production employees, including employees in the shipping and, cutting- departments, and including the boiler room employees and the maintenance machinists, but excluding all main office employees, plant office employees, the shipping clerk, the bill- ing clerk, the assistant shipping department supervisor, floorladies and floor- men, the piece goods foremen, the janitor, the gardener and all supervisory • 5556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action. We will, upon application, offer reinstatement to their former or sub- stantially equivalent positions, without prejddice to their seniority and other rights and privileges, to the employees who went on strike on November 5, 1945, and thereafter, and who have not previously applied for reinstate- ment. We will dismiss, if necessary, any persons hired on or after November 5, 1945, and not in our employ on that date. If. thereupon, despite such reduction in force, there is not sufficient employment available for the employees to be offered reinstatement, all available positions will be dis- tributed among such employees without discrimination against any employee because of his union affiliation or activities, following such a system of seniority or other non-discriminatory practice to such an extent as has heretofore been applied in the conduct of our business. Those employees, if any, remaining after such distribution for whom no employment is im- mediately available, will be placed upon a preferential list and offered reemployment to their former or substantially equivalent positions as work becomes available and before other persons are hired for such work, in the order determined among them by such system of seniority or other non- discriminatory practice as we-have heretofore followed. POOL MANUFACTURING COMPANY, Employer. Dated -------------------- By ------------------------------------ (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.