Georgia Twine & Cordage Co.

In the Matter of R. J . LovvoiiN D/B/A Grol;cr_. TWINE & CORDAcc. COMPANY and TEXTILE WORKERS UNION of ADIERICA, CIO Case No: 10-C-2012 .Decided February 11, 1948 Mr. William M. Pate, for the Board. Weeks and Candler, by Mr. Murphy Canuller, Jr., of Decatur, Ga., for the respondent. Mr. David Moose, of Atlanta, Ga., for the Union. DECISION AND ORDER On March 18, 1947, Trial Examiner Wallace E. R'oyster issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices,1 and recommending that he cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the respondent filed exceptions to the Intermediate Report, and a brief in lieu of oral argument. The Board-has considered the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rul- ings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief filed by the respondent, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the exceptions and additions set forth below : 1. The Trial Examiner found that the respondent violated Section 8 (1) and (3) of the Act by closing his plant on July ^,2, 1946, for a period of 3 weeks, following the Union's initial request to bargain on that day. We disagree. Among other things, we do not concur in the i The Trial Examiner found that the provisions of Section 8 (1), (3), and (5) of the Act had been violated. These provisions are continued in Section 8 (a) (1), 8 ( a) (3), and 8 (a) (5) of the Act, as amended t The respondent's request for oral argument had been granted by the Board on April 4; 1947,'but was rescinded on November 25, 1947, with leave to the respondent to file a sup- plemental brief or written argument in lieu thereof. 76 N L R B , No. 12. 84 GEORGIA TWINE & CORDAGE COMPANY 85 Trial Examiner's judgment as to the weight and significance to be given the specific facts relied upon by him in finding this violation. (1) He finds that the master mechnic was not aware that the shut-down would take place. The record shows that master mechanic had been aware of the poor condition of the respondent's machinery and of the neces- sity that the plant be closed for repairs in the near future , but that he had been absent from the plant because of illness for a week prior to the shut-down and had returned to the plant for the first time on the afternoon of July 22 to be told that the plant was shut down for repairs . Furthermore, it is apparent that no one, let alone the master mechanic, knew with any degree of definiteness that the plant would close on that day. (2) The Trial Examiner finds that materials were not at hand to perform the repairs when the.shut-down was ordered- The undisputed testimony shows that the materials needed for the repairs could not be fully determined until the defective plant ma- chinery was torn clown and the repair work begun . In any case, there is evidence of substantial preparation for repairs, including orders for new machinery and equipment, some of which had arrived prior to the shut-clown. (3) Although, as found by the Trial Examiner, the employees were not, from July 22 until August 2, officially given a reason for the shut-down, it was commonly known that repairs were being performed. Despite the proximity in time between the Union's initial approach to the respondent and the latter's decision to shut down, there occurred in this interval a serious motor failure which might well have justified the respondent's determination to undertake at this time the long- delayed repairs. Considering the entire record in the case, we believe the evidence is insufficient to establish that the shut-down of July 22, 1946, was caused or precipitated by the Union's advent. Accordingly, Nye shall dismiss the complaint in this respect. 2. However, we do agree with Trial Examiner's finding that the respondent unlawfully refused to bargain with the Union. From July 22, 1946, when it attained its majority status, until August 10, 1946, the Union made repeated demands upon the respondent for recognition as the exclusive bargaining agent and indicated willingness to prove its majority, if the respondent so desired. These requests the respondent met with equivocation and delay '4 meanwhile undermining "By the end of the first week of the shot-down , the i espondent had engaged as nianv as six of the employees for repair work , in addition , the master mechanic , the respondent's secretary , the mediator from the U S Conciliation Service, and the respondent 's super- visois knew of these repairs On July 29 and August 5, 1946, the-respondent replied to the Union 's further specific Iequests for re(ognition by instructutg the Union to "take It np with " his attorney at Decatur , Geoigia, 80 miles away We do not find, as the Trial Evimcner does by implica- tion , Iliac tn,o ieterial to distant counsel , standing alone, constitutes an unlawful refusal 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union by unilaterally granting a general wage increase and by participating in the circulation of a petition opposing union member- ship.5 Finally, on August 10, the respondent for the first time stated that he would not bargain until the Union proved its majority in a Board election. In view of these circumstances, we conclude, as the Trial Examiner did, that the respondent's ultimate challenge of the Union's representative status was not founded upon a good faith doubt of the majority, which lie had attacked,6 and that his refusal to bargain with the Union was, consequently, in violation o f Section 8 (1) and (5) of the Act.7 3. In addition, we find that the respondent's conduct in unilaterally instituting the wage increase on July 26 8 and in aiding in the circula- tion of the anti-union petition 9 was independently violative of Section 8 (1) of the Act.lo 4. As the respondent's unfair labor practices, in our opinion, demon- strate a disposition on his part to disregard his employees' rights guaranteed in the Act, we shall adopt the remedial order recommended by the Trial Examiner. ORDER Upon the entire record in the case and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor to meet and negotiate with the Union , we consider it, under all the circumstances of this case, however, as one of the tactois indicating the respondent's lack of good faith in deal- ing with the Union - , we agree with the Trial Examiner that Richard Dlcilullan, who was active in the circulation of the petition, was reasonably regarded by the employees as it, representative of management. The evidence indicates that McMullan was carried on the respondent's pay roll as a foreman and that he was the sole management authority on the night shift with direct charge over 24 employees In consideration of these facts, and the entire record, we further find that McAlullan was a supervisor whose conduct, under the cir- cumstances, is attributable to the respondent. ' N. L. R B. v. Consolidated Machine Tool Corporation, 163 F. (2d) 376 (C. C A. 2), enf'g as mod. 67 N. L R. B. 737. Nor does the anti-union petition serve to overcome the evidence of the Union's majority, consisting of authorization cards secured before its request for recognition and the inception of the unfair labor practices N. L. R B. v. Bradford Dyeing Association, et at, 310 U. S. 315. ° See N. L R. B v. Ellis-Klatscher & Co , 142 F. (2d) 356, 338, 359, (C C. A 9) enf'g 40 N L R B. 1037 ; N. L R. B. v. Crown Can Co , 138 F (2d) 263, 266, (C C. A 8) enf'g 42 N. L R B 1160, cert den 321 U. S 769; Matter of Unique Ventilation Co , 75 N L. R B 235; and compare May Department Stores Co. v N L. it. B , 326 U. S 376, 384, 385; Medo Photo Supply Corp v N L R B , 321 U. S. 678, 683, 684, Matte, of Hudson Hosiery Company, 72 N L. R. B 1434. 8 The Trial Examiner erroneously finds the effective date of the wage increase, to be July 29. The employees were regularly paid on Friday for the pay period ending the preceding Saturday; the wage increase was received in the first pay check after the 'shut-down , thus, July 26 is the date the pay check was received, and the pay-roll period covered thereby is July 15=19. 9 Under the circumstances, the circulation of the petition, which was represented as a "back to work" movement, constituted an implied threat that the employees' return to work might depend upon their repudiating the Union 10 Matter of Ilan vey Chalmers & Son, Inc., 75 N. L It. B 434. GEORGIA TWINE & CORDAGE COMPANY 87 Relations Board hereby orders that the respondent, R. J. Lovvorn d/b/a Georgia Twine & Cordage Company, and his 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 all employees of the respondent at his Forsyth, Georgia, plant, excluding clerical em- ployees and supervisors; (b) In any other manner interfering with, restraining, or coercing his employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Textile Workers Union of Alner- ica, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 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 his employees in the aforesaid appropriate unit, with respect to rates of pay, wages, hours of employment, and other conditions of employment, and if an agreement is reached, embody such understanding in a signed agreement ; (b) Post at his plant at Forsyth, Georgia, copies of the notice attached hereto marked "Appendix A." 11 Copies of the said 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 respondent immediately upon receipt thereof and maintained by him for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees customarily are posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material; (c) Notify the Regional Director for the Tenth Region in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed, insofar as it alleges that the respondent closed his Forsyth, Georgia, plant and locked out his employees in violation of Section 8 (1) and (3) of the Act. 11 In the event that this Order is enforced by a decree of a Circuit Court of Appeals, there shall be inserted before the words "A DAclsion and Order" the words "Decree of the United States Cneuit Coast of Appeals Enforcing" 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD MEMBERS HOUSTON and GRAY took no part in the consideration of the above Decision and Order. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to poin or assist TEXTILE WORB.I;RS UNION OF AMERICA, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. 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, wages, hours of employment or other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: - All employees at the Forsyth, Georgia, plant excluding clerical and supervisory employees. R. J. LovvoRN D/B/A GEORGIA TWINE & CORDAGE COMPANY. 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 1112% William M. Pate, for the Board. Weeks & Candle, , by Mr. Mgirph.y Candler, Jr, of Decatur , Ga., for the re- spondent. Mr. David Moose, of Atlanta , Ga., for the Union STATEMENT OF THE CASE Upon a third amended charge duly filed on Decembeti 4,1040, by Textile Workers Union of America, CIO, herein called the Union, the National Labor Relations GEORGIA TWINE & CORDAGE COMPANY 89 Board, herein called the Board, by its Regional Director for the Tenth Region (Atlanta, Georgia), issued its complaint dated December 4, 1946, against It. J. Lovvorn, doing business as Georgia Twine & Cordage Company, Forsyth, Georgia, 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 S (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Rela- tions Act, 49 Stat. 449, herein called the Act. Copies of the complaint together with notice of hearing thereon were duly served upon the respondent and the Union. With respect to unfair labor practices the complaint alleged in substance that the respondent: (1) on or about July 22, 1946, and at all times thereafter, refused unlawfully to bargain collectively with the Union as the exclusive representative of his employees in an appropriate unit: (2) on July 22, 1946, closed his plant and locked out his employees in order to discourage membership in and activity on behalf of the Union, and (3) from on or about July 22, 1946, to the date of the issuance of the complaint, through his agents and supervisory employees interrogated his employees with respect to Union affiliation and activity; threat- ened and warned them to retrain from assisting the Union, and kept under sur- veillance the meeting places and activities of the Union and the supporters of the Union. In his answer the respondent admitted the jurisdictional allegations in the complaint but denied the commission of unfair labor practices. Pursuant to notice, a hearing was held in Forsyth, Georgia, on January 9 and 10, 1947, before the undersigned, the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the respondent were represented by counsel ; the Union by one of its agents. Full opportunity to be heard, to examine and cross-examine witnesses and to introduce evidence bearing on the issues was afforded all parties. At the opening of the hearing, and again at the close of the Board's case-in-chief, the respondent moved for the dismissal of the complaint upon the ground that it was based upon a faulty charge.' The motions were denied. A motion made at the close of the Board's case-in-chief to dismiss the complaint insofar as it alleged interrogation of employees con- cerning their Union membership or .activity was granted. At the close of the hearing, a motion by Board's counsel to conform the pleadings to the proof was granted without objection. Although afforded opportunity to do so, none of the parties argued on the record and none has filed a brief or proposed findings of fact and conclusipns of law. 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 R J Lovvorn, an individual, doing business as Georgia Twine & Cordage Company, is engaged at Forsyth, Georgia, in the manufacture, sale, and dis- tribution of braided cordage, twisted twine, and relater products. During the ,year ending December 1, 1946, the respondent purchased raw materials con- sisting principally of cotton yarns having a value in excess of $250,000, of which 'Tile respondent 's contention that it charge must be filed by,an individual directly con- nected with the employees of the respondent is without meiit. The authority cited in sup- poit of the respondent ' s position , N L. B B v. Indiana and Michigan Electric Company, 124 F (2d) 50 (C C A 6), was specifically oveiruled upon review by the Supreme Court, 318 U S 9 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD approximately 5 percent was shipped to the Forsyth plant from points outside the State of Georgia. During the same period. the respondent sold finished products consisting principally of venetian blind cords, mason's line, and cotton rope, having a value in excess of $2.50,000 of which appioxnnately 75 peicent was shipped from the Forsyth plant to points outside the State of Geoi gia II THE ORGANIZATION INVOLVED Textile Workers Union of America is a labor organization, affiliated with the Congress of Industrial Organizations, admitting to membership empio^ees of the respondent. III. THE UNFAIR LABOR PRACTICES A. I he lock-out The respondent's business was started in 1936 at Carrollton, Georgia, and moved to Forsyth in the summer of 1940. Insofar as the record shows, at no time during its operation has the respondent bargained with a labor organization with respect to his employees Sometime in 1942, the respondent's business having greatly expanded by reason of orders from the War and Navy Departments, new motors were installed. It appears that the change from the old and unsatis- factory equipment to the electrical equipment presently in use was accomplished rapidly so as to avoid a long period of shut-down, with the result that at least one of the electric motors, which powered the principal drive shaft, was placed in a position where it constituted a hazard to safety For the next several years, the plant appears to have operated at nearly top capacity Only the most essen- tial repairs were made 'others were postponed in the expectation that business would slacken to an extent that a shut-down would be less costly. For several months prior to July 22, 1946, the motor which served to power the braiding ma- chines was a source of trouble and occasioned several short shut-downs During this same period, the pump in the dye house was found to be inadequate to per- form the work for which it was designed. -The question of relocating the motor was one occasionally discussed by Superintendent Giay and the respondent par- ticularly when the insurance company which carried the respondent's policy ob- jected to its location. Shortly prior to June 15, 1946, a new pump for the dye house which had long been on order was received. Also during the months before that date some preparation was made for locating the electric motor at a point above the floor of the plant where it would not constitute a hazard to the workers. At about 11 a. in , on July 22, a fuse was blown which occasioned the shut-down of all production for a period of an hour. During that hour, the respondent and Superintendent Gray arrived at a decision to close the plant at the conclusion of the first shift at 3 p. in. on that day. Accordingly, at about 2: 30 p in., a notice was posted in the plant which stated : NOTICE NO EMPLOYEE WILL REPORT TO WORK AGAIN UNTIL FURTHER NOTICE. , ( Signed ) W V. GRAY, Stip't. GEORGIA TWINE & CORDAGE COMPANY 91 -Other than this posted notice no advice was given to the employees , generally, as to the reason for the shut-down . Those reporting for wprk at 3 p. in saw the notice and left the plant . All employees on the pay roll were paid for 40 hours for the week ending July 27 , as well as for the week ending August 3. The plant reopened August 12 A maximum of six employees were employed during this period in making repairs The respondent testified that repairs which could no longer be postponed neces- sitated the shut-down; that the main motor was in such a condition that its per- formance was unpredictable ; and that in any event, the plant would necessarily have closed within a few days after July 22, until the backwinding machines emptied the containers which held the product of the braiders. The respondent 's product is formed from cotton yarns initially on braiding machines which twist and braid the yarns into cordage The product of the braiders feeds slowly into large metal cylinders which, when filled, are emptied by a "backwinder." Most but not all of the cord is then fed through the glazers or polishing machines. Some of the cordage is dyed What may be described as a chronic bottle-neck existed at the end of the braiding operation . Until the filled containers were emptied by the backwinders the braiding machines could not operate. In order to keep containers available, the respondent worked the backwinders 6 days a week and attempted by other practices to assure a sufficient supply of containers for the braiding machines. On July 22, when the plant closed, the containers were nearly filled On July 23 , the backwinders were operated partly for the purpose of emptying the containers but also, according to the credited testimony of Superintendent Gray, to check on the operation of the motor which, lie suspected , had caused a number of minor shut-downs. Con- cluding that the motor would have to be sent to another city for repair , Gray had it removed from the plant along with other motors which -required overhauling about July 24 or 25 The motors were repaired and returned to the plant a week or 10 days later. Also during the period of shut-down a new pump was installed in the dye house which necessitated the laying of a new concrete floor, the rigging of new pipe connections and providing a new and different stand for the pump. When the repaired motors were returned , the one providing the principal power for the machinery was suspended from a point above the floor where its opera- tion did not constitute a hazard . According to Superintendent Gray, 3 weeks was necessary for the accomplishment of these changes and repairs. At about 10 : 00 a in , on July 22, R. E . Starnes, a representative of the Union , telephoned Lovvorn; advised him that the Union represented a majority of the employees ; and requested a meeting for bargaining purposes . Lovvorn replied that he was about to leave town but that he would return Starnes' call later in the day. After making an unsuccessful attempt to do so, Lovvorn left Forsyth on July 23 not to return until the following Monday. Counsel for the Board contends that the plant would not have closed on July 22 had not the respondent been advised of the Union 's claim, and the the purpose of the shut -down was to discourage membership in and activity on behalf of the Union. The undersigned is convinced that the motors and the pump , described above, were not functioning efficiently and that repair and relocation of the motor which provided power for the braiding machines would have required the closing of the production lines for a period of time. The evidence is clear, however, that the 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD closing on July 22 was not in the contemplation of the respondent prior to the receipt of the telephone call from Starnes : C. R. Gray, who desci ibed huuself as the master mechanic and who testified for the respondent that lie was in charge of the workers whose duty it was to repair and maintain the machinery, did not know that the plant was to be shut down until the afternoon of July 22 Super- intendent Gray testified that the respondent was not in possession of the necessary materials to accomplish the repairs at the time of the shut-clown and that some of them were not secured until approximately 10 days atter the shut-down occurred. From any practical standpoint it must be recognized that businesses are not closed for repairs without pieparation and, without the material to accomplish that object. The respondent appears to contend with respect to the main electric motor that its condition was so bad that it was unwise to attempt its turther use. Such a conclusion is not borne out by the testimony of Superintendent Gray who apparently was not certain even on July 23 that this motor was the root of the trouble and, indeed, operated it on that day in order to satisfy hiniselt that it needed repair The undersigned concludes that the respondent did intend to close his plant to make the repairs above referred to but that as late as 10 a in. on the morning of July 22, had not decided as to the date when the shut-down would take place Remembering that the master mechanic was not aware that 2 Lovvorn's testimony on this point is so evasive and on one crucial question so quukly responsive to his counsel's suggestion as to be worthy of little weight as tile following excerpts will show : Q (By Mi. Pate ) When did you decide to close the plant that clay [July 22] for repairs? A We had been requested to make repaiis by the insurance company for some time. * * * * t * * Q When did you decide definitely to do that work--to close on the 22nd of July to do that woik'i A We would have closed anyway in the next three or four clays, because we were bottlenecked in our cans, that is, on all our production cans were full and we were limited in polishing capacity and it was the best oppoitunity we had to make repaiis mile we couldn't produce anymore * * 4 4 * n * Q And iiliy did you close on the 22nd of July father than wait thice or four dais later? A Our production was so-almost stagnated at the time and we thought it would be a good time, the first of the week, to start on our repairs We had needed to make repairs for a long time We hadn't had an opportunity to make any all during the tear. Q. When did you make that decision to close on Monday, the 22nd of July? A. I talked with niy Superintendent a number of times that we should shut down for repairs Q You had been talking with him over it period of several months before July 22nd, hall you? A. From time to time, yes Q Did you talk to him about it on July 22? A I talked to him about it prior to July 22nd. Q. Did you talk to him on July 22nd A I told him on .Trail 22nd we should make repairs and to shut down Q When you opened the plant on July 22, did you intend then to close the machines? A I intended to close it that clay or the next * * * * s * * Q Just at what time during the day did you decide to close that day rather than the next day or some later time? Mr CANDLER • He said lie had derided to go on his vacation and had decided and discussed it with the superintendent prior to that date A. I had decided prior to that date to go on my vacation and make my repairs GEORGIA TWINE & CORDAGE COMPANY 93 the shut-down ii ould take place, that materials were not at hand to perform the repairs, and that the employees were not until August 2, given a reason for the shut-down, the undersigned finds that the reasons offered by the respondent for the closing of the plant are not the true reasons. B. The ? efusal to bargain 1. The appropriate unit With the possible exception of a few mechanics, the respondent employs no skilled workers On July 22, 82 employees were engaged in production and main- tenance work at the plant The operation of the various production machines iequires little training and workers are not infrequently interchanged in the various operations. The complaint alleges that all respondent's employees exclu- sive of clerical employees and supervisory employees constitute a unit appropriate for the purposes of collective bargaining. This, of course, is a reasonable and traditional grouping of employees for bargaining purposes in an operation where there ate no sharp lines of demarcation among skills. Although the respondent in his answer denied the propriety of such a unit he offered no evidence tending to support his position. The undersigned finds, theretoie, that all employees of respondent employed at the Forsyth plant excluding clerical employees and supervisory employees at all times material herein constituted and now constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section ii (b) of the Act. 2. The representation by the Union of a majority in the appropriate unit Counsel for the Board introduced in evidence 65 cards bearing Dairies of respondent's employees in the appropriate unit designating the Union as the bargaining agent of the signers in all matters pertaining to wages, hours, and other conditions of employment. The signatures on all cards were identified by credible testimony. Forty-four of the cards were dated from July 17 to July 20. Dates on the remaining 21 ranged from July 22 to July 27. On July 22, the respondent employed 82 workers in the appropriate unit. Thus, it is clear, and is found, that on July 11, 1946, the Union had been designated by a majority of the employees in the appropriate unit as their bargaining representative in matters of wages, hours, rates of pay, and other conditions of employment and that the Union was thereby the exclusive representative of the employees in the appropriate unit within the meaning of Section 9 (a) of the Act. 3. The refusal to bargain As has already been stated, when Starnes on July 22 requested a meeting with the respondent for bargaining purposes he received no final answer When Starnes renewed this request on July 29, Lovvorn referred him to the firm of attorneys representing the respondent in this proceeding. On August 5, 1946, a week prior'to the reopening of the plant, another representative of the Union, Dm id Moose, delivered a letter to the respondent repeating this request and offering to prove a majority by submission of signed and witnessed author ization cards He, too, was referred to respondent's counsel in Decatur, 80 miles away. On August 10, in response to a further and final request by Moose, Lovvorn repiled that upon advice of counsel he would not recognize the Union until it had won an election. 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During the first week of the shut-down and at a time when Lovv orn was absent from Forsyth, Moose suggested to Superintendent Gray that an election be conducted to determine the desires of the employees and at about the same time, a conciliator of the United States Conciliation Service offered his services in that respect. Gray asserted that lie lacked authority to enter into any such arrange- ment. At the hearing, counsel for the respondent appeared to take the position that the respondent had discharged his duty under the Act by referring the Union to counsel While perhaps not material to the conclusions hereinafter reached, it is well to point out here that counsel misconceives the duty placed upon an employer by the Act An exclusive bargaining representative is entitled to deal with an employer on all matters of collective bargaining affecting the employees of the unit. While an employer may seek such advice as he desires and may be represented for bargaining purposes by his counsel or another of his choice, he must make his representative available to the bargaining representative. An employer's duty in these premises is not discharged by directing the bargain- ing representative to visit an attorney in another city 80 miles distant.' On July 29, while the plant was closed, the respondent unilaterally placed in effect an 8-cent per hour wage increase. During that week, a petition was circu- lated among the laid-off employees headed : We the undersigned employees of the Georgia Twine and Cordage Company are opposed to a closed shop and are opposed to union membership. The petition was signed by about 60 of respondent's emplo3 ees, many of whom had shortly before signed Union designations. The petition was delivered to the re- spondent on August 2. Although it is not evident that the petition was initiated by any agent of the respondent, it is amply clear that the respondent encouraged its circulation and invited employees to sign it. Richard McMullan, carried on the respondent's pay roll as a foremand, described by Lovvorn as in charge of glazing, winding and braiding on the night shifts, and frequently referred to in this hearing by counsel for the respondent as one of management, accompanied a group of employees on 2 days during the week of July 29, to secure signatures to the peti- tion On at least one occasion, McMullan urged an employee to sign the petition; ,it another time told an employee that such a petition existed and that its purpose was to get the employees back to work. Although the respondent testified that McMullan had no authority to hire or discharge or effectively to recommend such action, it is clear that, as the only one in authority on the night shift, the employees looked to him for orders concerning I heir work, and that he was regarded by the employees as a representative of management. Under these circumstances, it is found that the actions of McMullan in urging employees to sign the petition were reasonably attributed by employees to, and actually were a reflection of, the respondent's desires in that respect' It is found, therefore, that the defections from the Union evidenced by the names appearing on the petition were occasioned by the employees' desire to i eturn to work and their conviction that the plant would not open until the respondent was satisfied that the employees would not insist upon Union representation. It has been found that on July 22, 1946, and at all times thereafter, the Union was the representative selected by a majority of the employees in the appropriate unit for purposes of collective bargaining. Of course, this factor standing alone is not sufficient to impose a duty to bargain upon an employer who in good faith a See N L R B. v P Lorillard Company, 117 F. (2d) 921, 924, affirmed on this point by the U S Supreme Coui t, 314 U S 512 4 lntcinateonal Association of Dlachnnsts v N L R. B, 311 U S 72. GEORGIA TWINE & CORDAGE COMPANY 95 doubt the Union's claim of majority In such a situation an employer is entitled to proof of the claiming union's status either by way of an election or by some other appropriate means, Lovvorn elected, however, first to destroy the majority and then to challenge it. Effective July 29, all employees were granted a wage increase of 8 cents per hour to indicate to them, the undersigned finds, that the Union was not essential to their economic betterment,' du•nig that week the petition was circulated with the assistance and encouragement of Foreman Mc- Mullan ; Lovvorn repeatedly refused to meet with representatives of the Union and did not make his representative available at the plant, the situs of the difh- culty ; and, finally, these acts all took place against the background of a precipitate and untimely shut-dovN n which, the undersigned finds, was motivated by Lovvorn's desire to discourage membership in the Union. In sum , the respondent did not in good faith question the Union's majority and having, by the exercise of his economic powers. attempted to destroy the Union's majority„is not now entitled to test the Union's strength in an elections Having found that the Union represented a majority of the employees in an appropriate unit on July 22, 1946, and that the respondent by means of unfair labor practices thereafter sought to dissipate that majority, it is found that the respondent's failure to bargain with the Union on that (late and on the subsequent dates when such a request was made was an unlawful refusal to bargain with the majority representative of his employees in an appropriate unit and that the respondent thereby violated Section 8 (1) and (i) of the Act' It is further found that hI closing the plant on July 22, 1946. the respondent discriminated in regard to the hire and tenure of ei:iployinent of his employees thereby discouraging membership in and activity of behalf of the Union, and thereby violated Section 8 (1) and (3) of the Act. IV THE EFFECT OF THE UNFAIR LABOR PR AMC! S -UPON COMMERCE The activities of the respondent set forth in Section III. above, occurring in con- nection with the operations of the respondent described in Section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and such of them as have been found to constitute unfair labor practices tend to lead to labor d isputes burdening and obstructing commerce and the freo flow of commerce V. THE REMEDY Since it has been found that the respondent engaged in unfair labor practices, it will be recommended that he cease and dcsist therefrom and take certain affirma- tive action designed to effectuate the policies of the Act Since it has been found that the respondent refused to bargain collectively with the Union on July 22, 1946, and thereafter, it will be recommended that he bargain collectively upon request with the Union as the exclusive, repiesentative of his employees in the appropriate unit. It has also been round that the respondent discriminated in regard to the hire and tenure of his employees by closing the plant from July 22 to August 12, 1946. Ordinarily in such a situation, having found discrimination on the date of the r, In the face of the Union's demand for recognition and bargaining rights, this consti- tuted a violation of both Section 8 (1) and (5) of the Act 4 Medo Photo ,Supply Corp v. N L. R. B., 321 U S. 678. ,7 See Matter of Twin Cities Milk Producers Association, 61 N. L. R. B. 69. 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shut-down, the undersigned would recemmend that the respondent make his em- ployees whole for the entire period they were deprived of opportunity to work. In the instant case, however, all employees were paid for the first 2 weeks of the shut-down and thus suffered a wage loss of only 1 week. Since the undersigned is convinced that the condition of the plant's machinery coupled with the desires of the respondent to relocate some of it and replace certain equipment would have necessitated a shut-down at some time during the summer or fall of 1946, he be- lieves it not unreasonable to assume that a legitimate shut-down would have occurred which would have caused the employees to lose at least 1 week's wages Thus it appears that the employees actually have not suffered financial loss by reason of the shut-down It will, therefore, not be recommended that any back pay be awarded. By the unlawful refusal to bargain, closing of the plant in order to discourage Union membership, by persuading employees to abandon the Union, and by the totality of such conduct, the respondent has evidenced a determination to deprive his employees of their rights under the Act. In order to minimize the likelihood of recurrent unfair labor practices and to assure to the employees enjoyment of their statutory rights, it will be recommended that the respondent cease and desist fionr in any oihcr n:nnnir interfering with, restraining, of coercing his employees in the exercise of their rights under the Act i Upon the basis of the above findings of fact and 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 employees of the respondent, excluding clerical employees and super- visory employees, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9 (b) of the Act. 3 Textile Workers Union of America, CIO, was on July 22, 1946, and at all times since has been, the exclusive representative of all the employees in such unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By refusing to bargain collectively with Textile Workers Union of America, CIO, as exclusive bargaining representative of 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 closing his plant on July 22, 1946, the respondent discriminated in re- gard to the hire and tenure of employment of his employees and thei eby engaged in unfair labor practices, within the meaning of Section 8 (3) of the Act. 6. By interfering with, restraining, and coercing his 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. 7. The aforesaid unfair labor practices are unfair labor practices affecting °ommerce 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 in the case, the undersigned recommends that the re-' GEORGIA TWINE. & CORDAGE COMPANY 97 spondent, R. J. Lovvorn cl/b/a Georgia Twine & Cordage Company, his 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 all employees of the respondent ex- eluding clerical employees and supervisory employees ; (b) Closing its plant or in any other manner discriminating in regard to the hire and tenure of employment of his employees for the purpose of discouraging membership in the Union or in any other labor organization ; (c) In any other manner interfering with, restraining, or coercing his em- ployees in the exercise of the right to self-organization, to form labor or- ganizations, to join or assist Textile Workers Union of America, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activity for the purpose of collective bargaining or other mutual aid of 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 Textile Workers of America, CIO, as the representative of all employees other than clerical and supervisory, and if an understanding is reached, embody such understanding in a signed agreement; (b) Post at his plant at Forsyth, Georgia, copies of the notice attached hereto marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by the respondent, be posted by him immediately upon receipt thereof, and maintained by him for sixty (60) consecutive dais thereunder in conspicuous places including all places where notices to employees customarily we posted Reasonable 'steps 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, in writitrg, wJ1111i tell (10) days from the date of the receipt of this Intermediate Report what steps the respondent has taken to comply here- with. It is further recommended that unless on or before ten (10) days from the receipt of this Intermediate Report tine respondent notifies said Regional Di- lector in writing that he 'nil comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid. As provided in Section 203 39 of the Rules and Regulations of the National Labor Relations Board, Series 4, effective September 11, 1946, any party or counsel for the Board may, within fifteen (15) days from the date of service of the order transferring the case to the Board, pursuant to Section 20338 of said Rules and Regulations, file with the Board, Rochambeau Building, Washing- ton 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; and any party or counsel for the Board may, within the same period, file an original and four copies of a brief in support of the Intermediate Report. Im- mediately upon the filing of such statement of exception and/or briefs, 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. Proof of 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203 65. As further provided in said Section 203 39, 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 (late of service of the order transferring the case to the Board. WALLACE E. ROYSTER, Dated March 18, 1947. Trial Examiner. 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 eni- ployees in the exercise of their right to self-organization, to form labor organizations, to join or assist TEXTILE WORxvRS UNION OF AMERICA, CIO, or any other labor organization, to bargain collectively through representa- tives 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 BAI1GAJN 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 understanding in a signed agreement. The bargaining unit is: All employees at the Forsyth, Georgia, plant excluding clerical and supervisory employees. AVE WILL NOT by means of a shut-down or in any other manner discrimi- nate in regard to the hire and tenure of employment of our employees because of their membership in or activity on behalf of the above-named Union or any other labor organization of our employees. R. J. LovvoRN n/B/A GEORGIA TWINE & CORDAGE COMPANY. 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.